Aggregates Manager

February 2014

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Page 43 of 51

Rock Agency expands its use of Section 103(k) orders as the Commission broadens the definition of accident. by Kristin R.B. White MSHA TAKES CONTROL S ection 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." 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 42 AGGREGATES MANAGER February 2014 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 Sec- retary'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

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