Mine hazards can be regulated by both OSHA and MSHA laws. So one of the toughest parts of compliance in mining is figuring out which of these laws applies. So called jurisdictional challenges often arise at dual-use facilities under the common ownership of the facility and a mine that provides aggregate. A recent decision by the federal Mine Safety & Health Review Commission has a far-reaching impact on such dual jurisdiction job sites.

The Case: What Happened

The dispute began at Calmat Company of Arizona’s Phoenix facility. It consists of an aggregate mine, a "ready-mix" concrete batch plant and an asphalt batch plant. On August 11, 2003, a Mine Safety and Health Administration (MSHA) inspector was at the facility to conduct an inspection of the mine and maintenance shop. After a pre-inspection conference in the main office, the inspector went outside and saw a man atop a Caterpillar 773B End Dump Truck that had been loaded onto an over-the-road LowBoy tractor-trailer for transport off the property.

The man, who was the LowBoy driver, wasn’t wearing any fall protection. He was an independent contractor hired by Pacific Tri-Star, Inc., a used, heavy-equipment dealer from which Calmat had bought the Cat 773. The inspector issued Calmat an imminent danger order for failure to provide site-specific training to the driver, plus a citation for failure to provide him with safe access atop the Cat 773.

The LowBoy holding the Cat 773 was parked on a flat, dirt road that was next to another dirt road in the vicinity of the concrete batch plant. This area was located near a pile of aggregate that was going to be used by the processing center of the batch plant to produce ready-mix. It was also near the ready-mix truck parking lot and slump racks where ready-mix drivers clean their trucks and add water to loads. A second LowBoy tractor-trailer with another Cat 773 was parked nearby.

The Legal Battle: OSHA v. MSHA

Calmat claimed that the alleged violations occurred in an area of the facility that was excluded from MSHA's jurisdiction by an Interagency Agreement between MSHA and the Occupational Safety and Health Administration (OSHA). According to Calmat, if the concrete and asphalt batch plants at the facility hadn’t been present, there would be no dispute because MSHA would have sole jurisdiction.

After reviewing the Mine Act's definition of "coal or other mine" and accompanying legislative history, the judge ruled that because "the area in which the violations were cited was a private way or road appurtenant to 'an area of land from which minerals are extracted,'" it fell within the statutory definition of a mine. He further found that "unless specifically excluded by the Interagency Agreement as a concrete batch plant the cited area was within [MSHA's] jurisdiction."

The judge said that the site of the alleged violations – about 400 feet away - was a significant distance from the processing center for the concrete batch plant but near an aggregate stockpile used to supply it. However, since the site was not within the area of the mine that the Interagency Agreement intended to exclude from the Mine Act's coverage, the concrete batch plant was within MSHA's jurisdiction. He upheld the inspector’s findings and assessed fines totaling $2,975.

The First Appeal

Calmat appealed the decision but to no avail. The Secretary of Labor found that the judge had correctly concluded that the site of the alleged violations was subject to MSHA's jurisdiction because the area is next to a road that originates at one of the facility’s entrances and extends through it to the excavation pit. She also said that the judge was right to conclude that the haul truck atop which the man had been standing had been used in the past to haul mine product. That use, she felt, provided an additional basis for MSHA's jurisdiction.

The Secretary went on to uphold the judge’s determination that neither the haul truck nor the area in which it was parked was excluded from MSHA's jurisdiction because neither was within an area specifically excluded by the Interagency Agreement. Considering the language and purpose of the Mine Act and Interagency Agreement, the Secretary ruled that Calmat had fair notice that the haul truck and the area in which it was parked are subject to MSHA's jurisdiction.

The Second Appeal

So the company appealed to the Commission. But this appeal also failed. The Commission found that the site where the haul trucks were parked wasn’t clearly part of the batch plant that was excluded from MSHA's jurisdiction by the Interagency Agreement. It also found that the haul trucks themselves were clearly related to mining operations and therefore within MSHA's jurisdiction. Because the alleged violations involved an independent contractor performing work on mining equipment under the direction of a mine employee in a dual-use area, and in light of Congress' clear intention that jurisdictional doubts be resolved in favor of coverage by the Mine Act, the Commission concluded that the alleged violations properly fell under MSHA's jurisdiction.

According to Commission Chairman Michael J. Duffy:

“This case illustrates the need to establish definitive jurisdictional authority for workplace safety and health at dual use properties by assigning exclusive responsibility to either MSHA or OSHA, or by clearly delineating beforehand those areas subject to enforcement by the respective agencies. In any event, the allocation of enforcement authority should not be left to the ad hoc approach adopted here.”

Conclusion

I deal with these multi-jurisdictional problems all the time. The lesson I take from this ruling is that companies that question MSHA’s right to access an area(s) or facility that they believe are under OSHA should state this upfront and have it recorded in MSHA’s field notes. It’s best to have each individual site in question evaluated by an impartial third-party expert. The stakes – in the form of continued enforcement action and regular inspections should MSHA jurisdiction be granted – are too severe to risk otherwise.

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