Blurring the Definition of a Mine

 

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By: Matthew DeAtley

There can be some confusion as to when a mine is subject to the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). Due to the strict liability nature of the Mine Act and the broad interpretations by the Federal Mine Safety and Health Review Commission and the federal appellate courts, a mine is subject to the Mine Act based on blurred definitions within the Mine Act rather than the size area of the mine. 

The Mine Safety and Health Administration (MSHA)’s jurisdiction originally stems from Section 4 of the Act, titled “Mines Subject to Act.” This section states that “Each coal or other mine, the products of which enter commerce, or the operations of products of which affect commerce, and each operator of such mine, and every miner in such a mine shall be subject to the provisions of the act.”[1]

Initially, MSHA worked to draw as to where MSHA had jurisdiction by drafting of a memorandum of understanding (MOU) between MSHA and OSHA, the Occupational Safety and Health Administration. The MOU attempted to limit MSHA jurisdiction to those activities whose purpose is to extract or produce a mineral. It also gave OSHA certain activities that could have been under MSHA jurisdiction due to inherent milling processes or use in the aggregate production process. For example, the MOU gave OSHA concrete batch plants, borrow pits, and refractory plants, while the MOU limited MSHA jurisdiction to drilling, crushing, and stone cutting operations. MSHA, however, has pushed into what was once OSHA jurisdiction in the years since the agreement came into effect.

The Mine Act and the MOU are important to mine operators because, as illustrated above, there is no size requirement in terms of output or area for a mine to be subject to MSHA jurisdiction. Instead, jurisdiction is based on the definition of a mine as decided by the Federal Mine Safety and Health Review Commission, which has varied far from what the drafters of the MOU originally intended. Below are several areas where MSHA has pushed their often time much stricter standards far into what should be OSHA jurisdiction under the MOU.

Defining the Mine. Section 3(h)(1) of the Mine Act sets out the definition of a mine and an area of land where minerals are extracted in non-liquid form. If not for the MOU, this definition would be incredibly broad and include any sort of removal of material from its natural site. As stated above, the MOU limited this to allow MSHA jurisdiction only where there is “milling” of material, and therefore exempting borrow pits from MSHA jurisdiction.

However, this has not stopped MSHA from attempting to gain jurisdiction over borrow pits. MSHA has successfully argued that an operator is engaged in “milling” if they size the material in any way for its intrinsic abrasive qualities (such as screening the material to use as traction for icy roadways). A borrow pit will only be out of MSHA jurisdiction if the material removed is used strictly as bulk fill material and in no way prepared to meet market specifications (such as being used to fill and repair a gravel haul road in the mine).

Driving into the Mine. Section 3(h)(1)(B) gives MSHA jurisdiction over private way and roads pertinent to mines. This is a hotly contested area for mine operators, because MSHA requires costly berming or guarding over potentially miles of roadway used to access the mine, even if the mine only leases the road.

In general, the courts will look at six factors to determine if MSHA has jurisdiction over a road: 1) the road is owned by the mine operator, 2) the road is maintained by the operator, 3) the operator has the legal right to bring the road into compliance with MSHA regulations, 4) the road is used exclusively to provide access to the mine, or to other mines of the operator, 5) the road provides an exclusive or a major means of access for mine vehicles, or 6) the road was built by or for the mine operator. The presence of any one of these factors can propel the road into MSHA jurisdiction and leave the mine operator and, if the mine operator leases the road, the owner of the road, open to liability.

To Be Used in Mining. The phrase “to be used in mining” in Section 3(h)(1)(C) allows for the greatest jurisdiction overreach in the definition of mining. Under this clause, courts have interpreted nearly everything related to mining to be under MSHA jurisdiction.

Using the “to be used in mining” language, the courts have found that repair shops that are miles away from the actual mine site are under MSHA jurisdiction because they have tools, equipment, or facilities that are available for use in a mine. Further, even if production in the mine has not yet begun or has temporarily halted, the equipment is still going to be used in mining or has been used in mining and is therefore under MSHA jurisdiction. Interestingly, this can include independent contractors the mine operator hires to prepare a facility for mining even when no mining has yet to take place as well as independent contractors who the mine operator employs to complete a job, even if that job does not involve any sort of mining.

What Can Operator’s Do?

Although the courts do tend to side with MSHA, recently the Sixth Circuit Appellate Court has reigned in MSHA jurisdiction by ruling that a repair shop not located at the mine could not be issued citations for areas not related to mining. With this ruling, if mine operators make sure a clear separation exists between their mines and non-mine facilities, they will limit MSHA’s hold over them. Further, locking out equipment that is not in use is a sure-fire way to remove a piece of mining equipment from MSHA jurisdiction.

Due to the strict liability nature of the Mine Act, it is critical that mine operators push back against the ever-expanding reach of MSHA. Over the last thirty years MSHA has become an agency of seemingly unfettered power over mines. But with constant vigilance and resistance to MSHA overreach, MSHA can become an agency that helps mine operators have safer pits and the mine operators welcome inspections as a chance to learn.

[1] 30 U.S.C. §803 (1977)