MSHA can take control after mine accidents

By and |  July 7, 2014

Companies subject to OSHA are inspected after accidents, but employers are under no legal obligation to shut down all or part of their operations. In addition, companies are not required to correct conditions unless a citation is issued. And even then, if companies file a legal contest, there will be no legal requirement to abate conditions until the case is resolved.

When MSHA responds to an accident, the situation is drastically different. The Federal Mine Safety and Health Act empowers the secretary of labor (MSHA) to issue any orders deemed necessary to protect any person. This power is immediate and can be exercised even if the cause of the accident is not yet known. MSHA can order removal of miners, cessation of operations and immediate changes in conditions to which workers may be exposed. Such orders may remain in effect for days, months and occasionally years.

A Senate report from the passage of the Mine Safety Act explains why Congress gave such plenary power to MSHA. The unpredictability of accidents in mines and uncertainty about the circumstances surrounding them requires the secretary or an authorized representative be “permitted to exercise broad discretion in order to protect the life or to ensure the safety of any person.”

The grant of authority in Section 103(k) to issue orders is intended to provide the secretary with flexibility in responding to accident situations, including the issuance of withdrawal orders.

When Section 103(k) applies
Section 103(k) of the Mine Act provides plenary power to MSHA as the representative of the secretary of labor. This comprehensive power can be exercised only after an “accident,” as that term is defined in the Mine Act. The definition of “accident” under the Mine Act was addressed by the Federal Mine Safety and Health Review Commission in Secretary of Labor (MSHA) v. Revelation Energy LLC last November.

In the case, the mine operator challenged MSHA’s imposition of a 103(k) order after a two-ton flyrock landed on residential property – even though there was no injury or death involved. Pointing to definitions of “accident” in law and regulations, the company contended no “accident” had occurred, which would have empowered MSHA to issue a 103(k) order.

As the company noted, there is no flyrock event in the Mine Act definition of “accident.” Section 3(k) states this: “‘Accident’ includes a mine explosion, mine ignition, or mine inundation, or injury to, or death of, any person.” There is no flyrock event for “accident” defined in MSHA’s Part 50 accident reporting regulations, either. Briefly stated, certain incidences must be reported under these regulations, including death, injury that could cause death, entrapment, flood of liquid or gas, fire, unplanned blast ignition, ground failure, rock outburst, unstable impoundment, hoist damage, or death or injury to people off mine property.

Rejecting the company’s position and deciding for MSHA, the commission concluded neither the statutory section 3(k) definition nor the Part 50 definition restricts MSHA’s exercise of broad authority under section 103(k). The commission held that “the subject blasting event constitutes an accident within the meaning of sections 3(k) and 103(k)” of the Mine Act.

The commission cited Pattison Sand Co., a 2012 U.S. Court of Appeals decision: As the Eighth Circuit recently held in a similar case, the “plain text of section 3(k) suggests that the term ‘accident’ is not limited to the enumerated items contained in the definition. The court reasoned this: “When a statute uses the word ‘includes’ rather than ‘means’ … it does not imply that items not listed fall outside the definition.”

Effect of the decision
The effect of the commission’s decision in Secretary of Labor v. Revelation Energy LLC last November is that MSHA has authority to issue comprehensive control orders under section 103(k) in situations beyond those detailed in the accident reporting regulations and beyond the smaller list of events specified in the section 3(k) definition in the Mine Act.

As a practical matter, MSHA is most likely to have occasion to use comprehensive section 103(k) authority following accidents reportable under any of the multiple events set out in the Part 50 regulations. Typically, MSHA will issue a 103(k) order upon arriving at a mine. Thereafter, “the operator of such mine shall obtain the approval of [MSHA] … to recover any person in such mine or to recover the coal or other mine or return affected areas to normal.”

As a practical matter, this will often mean doing whatever MSHA demands.

Take note
There is no flyrock event in the Mine Act’s definition of “accident.”

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