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MSHA Takes Control

Posted By admin On February 1, 2014 @ 6:00 am In Articles,Regulatory,Rock Law | No Comments

Agency expands its use of Section 103(k) orders as the Commission broadens the definition of accident.

 

KristenUntitled-1 [1]By Kristin R.B. White, Contributing Editor

 

Section 103(k) of the Federal Mine Safety & Health Act of 1977, 30 U.S.C. § 801 et seq., (the Mine Act), provides the Mine Safety and Health Administration (MSHA) with a broad grant of authority to assert control over mine sites in critical accident situations. The Federal Mine Safety and Health Review Commission, which adjudicates contests of orders and citations under the Mine Act, has recognized that orders issued under § 103(k) of the Mine Act are “the means by which the Secretary may assume initial control of a mine in the event of an accident, in order to protect lives, initiate rescue and recovery operations, and preserve evidence.”

Section 103(k) states as follows:

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.

Based on the statutory definition, the Secretary’s authority to issue a § 103(k) order is predicated upon the occurrence of an “accident” at a mine. However, defining what constitutes an “accident” for purposes of § 103(k) has proven elusive. There must be a limit to the Secretary’s authority to issue a § 103(k) order to an operator, but that limit has not been clearly defined.

The Mine Act includes a general definition of “accident” in § 3(k), which states that “‘accident’ includes a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” This definition, however, is exceedingly broad and, by its nature, open-ended. And as a result, a trend has developed in which MSHA routinely asserts its authority under § 103(k) into situations that do not involve what most operators would consider an accident. In furthering this trend, the Commission recently affirmed MSHA’s authority to act under § 103(k) regarding “events that are similar to, or have a similar potential for injury or death” as the events specifically listed in § 103(k) in Revelation Energy, LLC, Docket No. KENT 2011-71-R (Nov. 20, 2013).

Revelation Energy involved an instance where a large rock travelled off a mine site after a blast and landed in a residential yard, with no injuries resulting. MSHA issued a § 103(k) order, which stated that it was intended “to protect the safety of all persons on mine site and off mine site.” The operator contested the order, arguing that the event at issue did not constitute an “accident” for purposes of § 103(k). The operator argued that the event fit neither the definition of “accident” in the reporting regulations at 30 C.F.R. Part 50 nor the Program Policy Manual. The operator further argued that by not limiting the Secretary to the definitions of “accident” in her regulations and Program Policy Manual, the Secretary could justify a 103(k) order with an “ad hoc definition of ‘accident.’”

The Commission affirmed the ALJ’s decision upholding MSHA’s order issued under § 103(k). The Commission held that the plain meaning of “accident” in § 3(k) includes more than the specific events enumerated in § 3(k) and that the scope of § 3(k) is ambiguous. As a result, the Commission accorded deference to the Secretary’s interpretation of “accident” as events that are similar in nature to or have a similar potential for injury or death as a mine explosion, ignition, fire, or inundation. Here, the launching of the rock took place inside of the mine and, based on the Secretary’s definition, amounted to an accident occurring in a mine because the blast that unexpectedly caused a large rock to enter a nearby residential yard had the potential to cause injury or death.

The Commission also distinguished the definition of accident in § 50.2(h) and § 3(k) of the Mine Act by holding that the definition of accident in § 50.2(h) was narrower in scope and limited to the terms used in Part 50 of MSHA’s regulations. However, the term “accident” was not similarly limited in § 3(k) of the Act.

The Commission’s decision upholding the issuance of the § 103(k) order has served to expand MSHA’s authority under that provision. The use of such orders in instances that may not qualify as accidents has enlarged the types of incidents that may give rise to such an order. As a result, this broad scope allows MSHA to control areas that may have had nothing to do with the incident at hand. If MSHA issues a § 103(k) order, operators must evaluate whether the incident resulted in an “accident” as that term is being defined by both MSHA and the Commission.

Kristin R.B. White is a member in Jackson Kelly PLLC’s Denver office, where she practices with the Occupational Safety and Health Practice Group. She can be reached at 303-390-0006 or via email at kwhite@jacksonkelly.com [2].


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