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A common-sense approach to MSHA jurisdiction

By and |  May 20, 2022
Headshot: Margo Lopez

Lopez

Headshot: Bill Doran, Ogletree Deakins

Doran

In a 2-1 decision issued in April, the Federal Mine Safety & Health Review Commission took what it characterized as a “common sense” approach and held that the Mine Safety & Health Administration (MSHA) does not have jurisdiction to inspect equipment located off mine property, even though it may sometimes be used at a mine.

The commission also held that MSHA cannot inspect an independent equipment maintenance or parking facility that is separate from a mine.

This case, Secretary of Labor v. KC Transport, concerned a shop and trucks owned by an independent trucking company, KC Transport. MSHA inspected the trucks when they were parked at KC Transport’s facility, located more than a mile from the nearest mining operation. About 60 percent of the services performed by this facility supported coal mining.

MSHA did not normally inspect the KC Transport facility, but on this occasion, an inspector was in search of trucks he had cited when they were at the nearby coal preparation plant, as he intended to terminate those citations.

While at KC Transport’s shop, however, the inspector issued two more citations for not blocking equipment against motion while raised for repair. It was those later citations that were at issue in this case.

KC Transport did no mining on its property, and the shop was not located on or even next to a mine. MSHA argued, however, that the trucks themselves constituted a “mine” because they were used on mine property. MSHA cited language in Section 3(h)(1) of the Federal Mine Safety & Health Act of 1977 that defines a mine as “an area of land from which minerals are extracted,” “private ways and road appurtenant to such area” and “facilities, equipment, machines, tools or other property . . . used in, or to be used in, or resulting from the work of extracting such minerals.”

The commission majority rejected MSHA’s interpretation, concluding that it would lead to “absurd results” by creating what essentially are “rolling mines,” with vehicles potentially subject to MSHA jurisdiction even when parked at the neighborhood diner. It also could lead to MSHA arguably having the right to inspect hand tools a miner carries home.

The commission majority also disagreed with MSHA’s treatment of KC Transport as an “operator” with respect to its facility. The holding states that independent contractors can be cited by MSHA only when physically performing services at a mine. KC Transport’s off-mine facility cannot be subject to a citation, even though it is servicing mine equipment.

The majority emphasized the following key facts: KC Transport is an independent contractor; there is no mining extraction done at its facility; and the facility is not located on mine property or on a road appurtenant to a mine.

The commission also noted that the Mine Act’s purpose is to protect miners from hazards associated with mining. Any hazards at a maintenance shop not located at a mine are not considered mine-associated hazards.

The majority also pointed to the fact that the Mine Act imposes a mandatory requirement on MSHA to inspect each mine in its entirety two or four times per year. Yet MSHA has no program or procedures in place to inspect repair shops and other facilities not on mine property.

Key takeaways

The two commissioners in the majority clearly state that MSHA’s jurisdiction extends only to protection against hazards of mining. The Mine Act does not apply to independently owned facilities, equipment and tools that are on non-mine property and property not adjacent to a mine. The KC Transport decision also instructs that independent contractors are eligible to receive citations only related to services performed at a mine.

Operators will want to be aware, however, that there are two commissioner nominations pending confirmation in the U.S. Senate that will bring the commission to its full complement of five commissioners. That may change the commission’s views on jurisdiction. Chairman Arthur Traynor’s dissent in KC Transport, finding that MSHA did have jurisdiction, may foreshadow any future decisions on Mine Act coverage.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.


Featured photo: isabela66/iStock / Getty Images Plus/Getty Images

 


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