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Rock Law by
Patton Boggs LLP |
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MSHA versus OSHA: Who’s in Charge Here Anyway?
A large part of a safety and health attorney’s practice is often devoted to counseling clients regarding the jurisdictional split between the Mine Safety and Health Administration and the Occupational Safety and Health Administration, two agencies with similar missions that operate side-by-side within the U.S. Department of Labor. Although the basic division of authority between the two agencies is pretty easy to grasp — MSHA has authority over mines; OSHA deals with everything else — there is a murky area where their jurisdictions seem to overlap, and navigating that area can be tricky. The difference between MSHA and OSHA becomes important after one of the two agencies has taken an unwanted course of action with regard to an operation, or an aspect of an operation, that is outside of that agency’s authority. The most basic level for challenging such an action is at the jurisdictional level — suggesting that the particular agency overstepped the boundaries set by the laws that created and direct the agency. MSHA derives its authority from the Mine Safety and Health Act and OSHA from the Occupational Safety and Health Act. The Mine Act provides MSHA with jurisdiction over lands, structures, facilities, equipment, and other property to be used in, or which results in, mineral extraction or milling. It also directs the Secretary of Labor to determine what constitutes mineral milling and requires that, in doing so, the Secretary consider the convenience of administration that comes from having a single agency oversee the health and safety of all employees working at one physical establishment. The OSHAct gives the secretary authority over all working conditions of employees engaged in business affecting commerce, except those conditions under MSHA’s authority. However, this arrangement has resulted in several gray areas. It can be especially confusing at quarries that were intended to feed ready-mix or hot-mix plants. It has also created a good deal of confusion at quarries where mining and crushing have ceased. Recognizing the need for some clarification, MSHA and OSHA entered into an interagency agreement in 1979. The agreement was an attempt to simplify questions regarding the two agencies’ respective authority and to provide for coordination between them “in all areas of mutual interest.” The agreement discusses a few general principles, sets forth descriptions of activities that constitute mining and milling, and provides examples of several specific situations where MSHA authority ends and OSHA authority begins for certain mining and/or milling operations. For example, MSHA has jurisdiction over various milling processes including crushing, grinding, pulverizing, sizing, concentrating, washing, drying, roasting, pelletizing, sintering, evaporating, calcining, kiln treatment, sawing and cutting stone, heat expansion, retorting, leaching, and briquetting. Additionally, if a facility is used in support of mining activities to any extent, MSHA may choose to assert its jurisdiction. According to the agreement, all doubts as to which agency has authority are to be resolved in favor of MSHA under the Mine Act. The interagency agreement also provides examples of OSHA jurisdiction, regardless of whether what’s in question is located on mine property. The examples most meaningful to the aggregate industries are ready-mix plants and hot-mix plants. The agreement says that at asphalt-mixing plants and concrete ready-mix or batch plants, OSHA takes over after the sand and gravel or aggregate arrives at the plant stockpiles. This means that where there is a quarry and a ready-mix or hot-mix plant on the same property, MSHA will inspect everything up to and including the stockpile feeding the plant. OSHA then takes over and will inspect everything that follows. However, if employees from the ready-mix or hot-mix side also work on the MSHA side, they will need to have the same training as a regular quarry worker. The same holds true for mobile equipment. If it is used in both operations, it must comply with MSHA regulations. It is also worth noting that MSHA will retain jurisdictions over shops on the property where equipment from both operations is serviced or repaired. Lately, some questions have also arisen about quarries at which there is no more mining, but which still have activity going on. Theoretically, MSHA retains jurisdiction over any activities going on in a quarry, which has not yet been reclaimed. This is based on the language in the Mine Act that says that MSHA has jurisdiction over lands “resulting from” mining. However, the practicality is that once MSHA considers the property to be “permanently abandoned,” it will generally turn jurisdiction over to OSHA. For that reason, the decision to declare the mine permanently abandoned could have a significant affect over how operations taking place after that notification are regulated.
Gould advises clients on administrative law matters and complex litigation in federal and state courts. Planning Vital to Minimizing Liability With Contractors Operators with even the most stellar records must take pre-emptive measures to thwart legal issues, even when the organization did not cause the incident. A mine operator who runs a clean operation with an enviable safety record was tagged by the Mine Safety and Health Administration when a contractor’s employee was tragically killed on the job. The victim’s family also sued the mine operator, and the plaintiffs’ lawyer tried to use the MSHA investigation against him. Fortunately, careful planning and implementation of a contractor program, and an aggressive post-accident intervention, prevented the plaintiff from reaching beyond the compensation system to the operator. The case provides the basis for good advice for operators on liability risk reduction. The victim worked for a contractor hired to remove overburden in preparation for future production. He was hauling material uphill when the brakes failed and his scraper rolled backwards over the edge of the haul road. MSHA concluded the accident was caused by a failure to maintain the scraper in safe operating condition since the service and parking brakes did not control the scraper. The Feds also blamed the accident on ineffective pre-shift inspections and inadequate berms. The contractor was a small business that had worked with a number of mines and had its own MSHA ID. Under the contract, the contractor had been given a clearly delineated work area and was responsible for meeting regulatory standards and complying with a specific safety program. Prior to starting the work, the contractor and operator reviewed compliance and safety requirements, job-site hazards and protections, and required training. Afterward, the operator relied on the contractor to comply and operate safely. Indeed the contractor was hired because the operator did not have the capacity to do the job. Maintaining the haul road was left up to the contractor, who provided the equipment and employed qualified equipment operators. Contractor employees, not the operator, regularly traveled the roads, and the contractor assumed responsibility for maintaining the roads and adapting them as work progressed. At the time of the accident, the operator had ceased all production at the worksite. The remaining equipment was to be transported to another site on the day of the accident. No operator employees were anywhere near the accident site. The contractor received a number of citations and orders from MSHA, including seven 104(d) unwarrantables. The operator also received two 104(d)s, alleging a high negligence, unwarrantable failure to provide berms. Later, MSHA proposed penalties that must have seemed high even to the government. Initial informal conference efforts failed to achieve favorable changes, but the client’s good work and persistent efforts were finally recognized in a settlement. Of course, the operator was saddened by the death and understandably upset by the MSHA action. The company saw the orders as targeting the operation unfairly, issued only because it was the larger company. Yet, the operator understood that under the strict liability Mine Act, an operator can be held responsible for violations that occur at the site, regardless of whether the operator caused it. MSHA has the discretion to cite the operator or the contractor or both, for the very same thing. Our job was to find a way to minimize the liability risk caused by the MSHA violations in the civil lawsuit, reduce the fines, and prevent personal fines against the operator’s management — or worse yet, a criminal action (a review which MSHA undertakes for each unwarrantable). Liability risk reduction takes advance planning. The success achieving this particular operator’s goals was aided significantly by the company’s pre-accident efforts and its incident response. Operators should be encouraged to evaluate site inspection programs together with the contract provisions that define its relationship with contractors in order to reduce their liability risks. Clear expressions of duties and rights in the contract as well as enforcement of contract safety provisions are just as important as the production payment terms of the contract. One loss can wipe out all the benefits of the contract and cost far more than the expected profit in liability and personal risk. Of course, contractors should be selected based on their ability to perform a job efficiently, but operators should impose minimum requirements for compliance programs, insurance coverage, injury and accident performance, violation history, and other EH&S criteria. The written contract or purchase order should describe the contractor’s duties and the operator should conduct pre- and post-selection due diligence to assure compliance with the contract terms, including provisions that provide for the following:
While there is never a guarantee that MSHA will not cite an operator, the steps taken by the operator in this case history has made it possible to argue for the company’s good faith preventive efforts to achieve a favorable settlement. The settlement deleted the unwarrantable finding, avoided a special investigation, and protected against the use of the MSHA paper in the liability case with exculpatory language that expressly did not admit the violation (for any purpose other than the minor MSHA penalty), and acknowledged the operator’s prevention efforts. The operator’s pre-incident planned use of experts and counsel for incident response was also beneficial because it assured attendance at key interviews, preventing any misinterpretations of statements or documents and providing the technical defense basis. Understanding how MSHA works and fits into the legal system, along with good planning and sound implementation, makes a vast difference in results.
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Peter
S. Gould is an associate at Patton Boggs LLP’s Denver, Colorado
office.
Henry Chajet is a partner with the
Washington, D.C.-based
Willa Perlmutter is of counsel with
the firm’s Environment, Health, Safety, Crisis Management,
and Litigation practice groups.
