|July 24, 2014|
Previously published on July 18, 2014
The new owner of a Pennsylvania custom coal preparation facility that the Federal Mine Safety and Health Administration (MSHA) regulated since 1977 challenged whether MSHA properly had jurisdiction over the plant, and instead contended that it should be regulated by OSHA. The Federal Mine Safety and Health Review Commission concluded that MSHA jurisdiction was appropriate because the facility was engaged in the “work of preparing the coal” and the Third Circuit agreed with that conclusion last week.
The difference in jurisdiction would result in a difference in oversight. MSHA’s regulatory framework is more specific and extensive than OSHA’s in regulating the safety and health hazards of handling coal, particularly with respirable coal dust exposure. The enforcement mechanisms under the Mine Act are also more rigorous than OSHA’s powers. As the Third Circuit pointed out, the Mine Act requires two inspections per year for surface mines, permits inspections to be conducted without a warrant, and in some circumstances allows for an inspector to issue an order requiring the withdrawal of miners from a mine.
The new owners of the facility argued that they were involved only in the manufacturing of coal products rather than coal processing but the Third Circuit found substantial evidence supporting the ALJ’s decision that the facility stored large amounts of coal, screened it to remove impurities, dried it, and loaded it into bags to be sold in the stream of commerce. The Third Circuit agreed that this fell within the Mine Act’s definition of “work of preparing the coal,” which is expansively defined to include “the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.” See 30 U.S.C. § 802(i). Accordingly, MSHA (and not OSHA) jurisdiction was appropriate.