MSHA wins two on jurisdiction issues
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.
Agapito challenged the citation (which was assessed at the maximum “flagrant” penalty) and claimed that its work was too incidental to coal production to encompass the company as an “independent contractor” and — hence — a “mine operator” under the definitions of the Mine Act. The decision came following competing motions for summary judgment, and the commission has yet to rule upon the merits of the citation and the appropriateness of the $220,000 penalty.
This was not the first time MSHA had taken aim at engineers, however; after the Quecreek mine disaster in 2002 (where all trapped miners were eventually rescued), MSHA cited Musser Engineering, the firm involved. In a 2010 ruling, by a two-to-one vote, the Commission found that Musser was a mine operator because it provided more than de minimis engineering services in relation to the Quecreek No. 1 Mine. Upon remand in 2011, an ALJ upheld a $55,000 penalty against Musser.
In ruling against Agapito on the jurisdictional issue, ALJ Manning analyzed the situation in the following dicta:
The crucial distinction between Musser and this case is the extent to which the operators and MSHA relied upon the analysis of the consulting companies. Musser submitted an unaltered map directly to the state permitting agency and that same map was subsequently submitted to MSHA. The operator also conducted its mining according to that map. Conversely, Agapito did not submit its work to any agency, and GRI did not directly include that work with any filings to any agency. MSHA and GRI altered and disregarded Agapito’s analysis when formulating a roof control plan, showing that Agapito’s services represented the transmission of ideas and nothing further. Ideas do not give rise to Mine Act jurisdiction.
Despite this, the ALJ determined that Agapito engaged in more than de minimis services to Genwal and, therefore, qualified for independent contractor status under the Musser precedent. Although Agapito did not have a regular presence at the mine, its representatives had visited at least twice to take photographs and view the mine as part of the preparatory work for engineering services, and the firm had billed 320 hours of time on the project.
ALJ Manning affirmed that mining services performed off-site will trigger MSHA jurisdiction, if the services relate to the act of mining. A merits hearing on the actual allegations against Agapito has not yet occurred. Whether these rulings will have a chilling effect on the willingness of engineers and other consultants to provide services to mining companies remains to be seen.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at firstname.lastname@example.org or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.
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