Adele Abrams, Esp., CMSP

Two recent decisions confirm what many in the mining industry have suspected for a while: the

Mine Safety and Health Administration (MSHA) is branching out from “traditional mining” and seeking new venues and employers to take enforcement actions again, even where their activities are only tangentially related to the actual extraction and production of minerals.

The first case, Standard Gravel Co., was won by MSHA on Nov. 15, 2012, when ALJ Priscilla Rae granted MSHA’s Motion for Summary Judgment, finding that the agency had jurisdiction over an off-site maintenance shop that was used to repair and service mining equipment, as well as provide non-mining repair services to third parties. In Standard Gravel Co. Inc., the repair shop was located off-site from any mines and ranged from 2 to 40 miles away from the mines whose equipment it serviced.

The shop was owned by the mining company but also performed equipment repair services for third parties that were unrelated to mining. However, the ALJ took note that the preponderance of work at the shop was performed for its mines (albeit well-removed from mine property), and service representatives from the mines were MSHA-trained and also performed work on equipment at the mine site. The operator noted that much of the MSHA training had been provided in response to MSHA’s assertion of jurisdiction over the shop, in order to avoid having workers removed while the litigation was pending.

In her decision, ALJ Rae wrote: [Standard Gravel] cannot elude inspection of its fabrication, equipment repair, and service shop which are normally located on the mine site itself simply by moving it off-site . . . . Such a result would frustrate the ability to protect the miners who work in the shop and service the equipment in contravention of the Act.” The judge held that Standard Gravel should have known the site and equipment would be subject to MSHA’s jurisdiction because the equipment was used at mines.

The judge added that the Mine Act’s definition of a “mine” is “sweeping and expansive” and should be given “the broadest possible interpretation” and any conflicts resolved in favor of giving MSHA jurisdiction.

In Jim Walter Resources (FMSHRC 2000), the Commission had also addressed a situation where a general machine shop was located off-premises (but all work was dedicated to work on mining equipment, and no third-party repair services were part of the shop’s business), and overturned an ALJ finding against jurisdiction, adding that “a storage garage shared by a mine and an asphalt company could be a mine” if the equipment stored there was used in mining and the cited conditions “could affect miners in the garage.”

Therefore, in Standard Gravel, the judge agreed that “repair and servicing of mining equipment and fabrication of parts are functions normally performed in daily mining operations at any facility.” In short, as the law now stands, the presence of equipment used in the mining extraction process may be sufficient to confer jurisdiction over repair and supply shops located off-premises.

The operator did raise a “fair notice” argument because MSHA had known of the shop’s existence for years and had even visited it to verify abatement of equipment defect citations, but had declined to inspect it until 2009.

However, after the mine operator contested jurisdiction over the first batch of more than a dozen citations during the initial 2009 inspection, MSHA voluntarily vacated them in a tacit acknowledgement of the operator’s “fair notice/due process” argument, and so this ruling on Summary Judgment involves citations from the second and third inspections where jurisdiction was also disputed. ALJ Rae took note of argument, but held that Standard Gravel should have known the site and equipment would be subject to MSHA’s jurisdiction because the equipment was used at mines.

The decision, which was not appealed, does not constitute binding precedent, but it does set the stage for MSHA to exercise jurisdiction into other off-site shops — such as those maintained by equipment manufacturers such as Caterpillar, Komatsu, and Volvo — where work on mining equipment is also performed under warranty. Until now, MSHA had appeared to refrain from inspecting such shops that also provide services to the general public (as Standard Gravel’s shop also does), but this ruling could provide momentum for MSHA to enter those realms.

Another recent jurisdictional ruling was issued by ALJ Manning on Dec. 6, 2012, relating back to the tragic 2007 fatality at the Crandall Canyon mine in Utah, where six miners perished after the area of the mine where retreat mining was being conducted collapsed and entombed them in the mine. The tragedy was compounded days later when three rescue workers, including an MSHA inspector, were also killed during a subsequent collapse.

While there was no question that MSHA had jurisdiction over the Crandall Canyon operation, which was run by Genwal Resources, Inc., MSHA also extended its jurisdiction to cite the engineering and consulting firm that had advised the mine operator on its mining approach and plan development. The company, Agapito Associates Inc., was fined $220,000 by MSHA, which exercised jurisdiction even though the bulk of the services provided (engineering analyses related to the mine’s ground support plan) were conducted off mine property. MSHA cited Agapito under 30 CFR 75.203(a), which deals with utilization of appropriately sized pillars, because Genwal relied upon Agapito, and it was pillar failure that contributed to the fatalities.