Does MSHA Have Jurisdiction Over Them Forever, Wherever They Go And However They Are Used?
By Brian Hendrix
If a haul truck or a hammer is used for mining or used at a mine, does MSHA have jurisdiction over them forever, wherever they go and however they are used? Put differently, does “jurisdiction follow equipment if it travels away from the mine”?
No. That’s the obvious answer. Any other answer would be absurd. Indeed, “absurd” is the word used by the Federal Mine Safety and Health Review Commission in a recent decision to describe MSHA’s argument that a haul truck “independently constituted a mine” after it left mine property.
The Commission’s Secretary of Labor v. KC Transport, Inc. decision doesn’t break new legal ground; it’s well supported by precedent (and by common sense). However, as the most recent product of MSHA’s never-ending quest to expand its jurisdiction, it is quite instructive.
This story starts with an MSHA inspector who was simply looking for the two haul trucks that he’d cited during a recent inspection of a mine. His goal was to terminate the citations.
However, the haul trucks weren’t at the mine where he originally issued the citations. They were parked at KC Transport’s Emmett facility, a “lot with an open storage area” where it parked equipment and performed maintenance and repairs.
KC Transport is an “independent trucking company that provides coal, earth and gravel hauling services to various businesses, including” coal mines. Its Emmett facility is not on mine property. It is 1,000 ft. from a mine haulage road, over a mile away from a prep plant, and between four and six miles from at least four coal mines.
As the Commission described it, “the haulage road is partly public; there is a gate limiting access … beyond which [the mine or production operator] maintains the road. To reach the Emmett facility, one must pass through the gate, travel up the haulage road, then turn onto the public [road].”
About 35 trucks operate from the Emmett facility, approximately 40% of which are not used in mining. The trucks include “off-road trucks that provide haulage for nearby mines and on-road trucks that provide haulage services completely unrelated to mining.”
When the inspector arrived at the Emmett facility, KC Transport’s employees were working on two haul trucks (not the trucks he’d previously cited) that were raised but not blocked against motion. This prompted him to issue two citations to KC Transport for the failure to block the raised trucks.
That’s all he did. He didn’t inspect the facility. He didn’t inspect any of the other trucks or equipment there that had been used in mining. The inspector just cited what he saw and left.
We know that the inspector wasn’t guided or following any MSHA policy. Indeed, the commission noted that MSHA has not:
… developed any consistent policy for the exercise of jurisdiction over off-site facilities. In this case, MSHA certainly knew of the existence and location of the facility but did not seek to exercise any jurisdiction or perform any statutorily required inspections until after an inspector went to the site and impulsively issued citations for two trucks. Even then, MSHA did not assert jurisdiction over the facility. The actions of MSHA regarding such facilities and offsite equipment demonstrate only a pattern of random, sporadic action rather than implementation of a thoughtful policy.
KC Transport contested the citations and both parties moved for summary judgement. KC Transport argued that the Emmett facility isn’t a “mine” and MSHA only has jurisdiction over equipment located at or appurtenant to a mine. MSHA argued (and I am not making this up) that each of the cited trucks “independently constituted a ‘mine’ … and was … subject to MSHA jurisdiction irrespective of its location.”
Rejecting both arguments, the ALJ charted his own course. He rightly recognized that MSHA’s “approach would create ‘rolling mines’ and lead to ‘absurd results.’” Nevertheless, he held that the trucks “fit well within the Mine Act’s definition of equipment used in the work of preparing coal.” Since “[t]he transportation of coal from those mines to that preparation plant is an integral part of the mining and preparation process” and “maintenance of the trucks at the facility is essential to the coal hauling and preparation process,” he decided that “MSHA had jurisdiction over the trucks at issue as well as the maintenance facility.” In the commission’s words, the “Judge awarded MSHA unasked-for jurisdiction over the facility,” not just the trucks there.
On appeal, the commission agreed with the judge that MSHA’s definition of “mine” is “absurd,” but that’s where its agreement with the judge ended. The commission firmly rejected MSHA’s claim that:
… the definition of a ‘mine’ in the Mine Act plainly applies to offsite, non-mining storage and repair facilities or all tools, equipment, and machines located off a mine site that have a use in mining … If a miner used his own hammer at work, it would be a ‘mine’ even when located in his home workshop … If jurisdiction follows equipment as it travels away from the mine, there is no point at which jurisdiction ceases.
The commission relied on several cases, including the 6th Circuit’s Maxxam Rebuild decision, to support its ultimate holding that:
… an independent repair, maintenance, or parking facility not located on or appurtenant to a mine site and not engaged in any extraction, milling, preparation, or other activities … is not a mine … We further hold that tools, equipment, and the like not on a mine site or any appurtenance thereto and not engaged in any extraction, milling, preparation or other activities within the scope of subsection 3(h)(A) are not mines …
Further, it explained this jurisdictional standard is also:
… consistent with a common sense understanding of the Mine Act’s purpose, namely protecting miners from hazards associated with mining … Common sense dictates that jurisdiction should not attach in situations, such as here, where no such risks particular to a mine exist … [Nothing in the record suggests that repair work at the Emmett facility is different, in any respect, from the same type of work performed on tens of thousands of trucks throughout the nation at other facilities or, indeed, on any other KC Transport truck that hauls material other than coal. The record shows no difference in activities at the Emmett facility between contractor trucks hauling coal and contractor trucks moving non-coal materials.
The commission reached the right result in a very strong, thorough, well-reasoned decision. It was not, however, a unanimous decision.
Commissioner Traynor dissented. He wrote that there is substantial evidence that the haul trucks are equipment that was “used in” mining and “essential and integral to mining operations.” Moreover, he believed that the location of “the parking lot, adjacent to the mine haul road, provides additional evidence of the truck’s function.” As such, he agreed with the judge that MSHA had jurisdiction over the trucks.
Finally, this case isn’t closed. MSHA has filed an appeal in the D.C. Circuit Court of Appeals, so the final installment is yet to come.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected]