Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/777939
48 AGGREGATES MANAGER / February 2017 ALJs reject MSHA's attempt to expand 'working place' through citations that broaden its traditional definition. Kristin R.B. White is a mem- ber of Jackson Kelly PLLC and manages the Denver of- fice. She can be reached at 303-390-0006 or kwhite@ jacksonkelly.com. Adam J. Schwendeman is an associate in the firm's Charleston, W. Va., office. He can be reached at 304-340- 1077 or aschwendeman@ jacksonkelly.com. To Be or Not to Be a 'Working Place' T he Mine Safety and Health Ad- ministration (MSHA) and the Secretary of Labor (the Secre- tary) have recently cited metal/ non-metal operators for failing to conduct workplace examinations of elevators that are used by miners to travel to places in the mine. MSHA cites the mine operators un- der 30 C.F.R. § 56.18002(a), which requires that "a competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropri- ate action to correct such conditions." The operators have argued that they were not required to conduct workplace examinations of the elevators each shift because, absent work being completed on or near the eleva- tors, the elevators were not working places for the purposes of § 56.18002(a). Work- ing places are defined in the regulations as any place in or about a mine where work is being performed. 30 C.F.R. § 56.2. In each cited case, the elevators were merely be- ing used to transport miners to working places, but were not working places in and of themselves. The Secretary's argument rests on his broad interpretation of the definition of 'working place' contained in § 56.2 and, in particular, the word 'work' contained within that definition. The Secretary argues that the elevators at each mine were 'working places' because miners used those eleva- tors each day to travel throughout the plant. The Secretary urged the Administrative Law Judges (ALJs) to grant the agency deference and adopt the broad interpretation that mere travel constituted "work." When challenging the enforcement ac- tions, the operators argued that the Secre- tary's new interpretation was overly broad and constituted a substantive rule change because it impermissibly expanded the working place examination requirement into areas such as travelways and, potentially, the entire mine, regardless of whether work was performed in those areas. Furthermore, the Secretary failed to present any evidence that work was being performed, had been performed in the past, or would occur on or near the elevators in the future. Instead, the Secretary merely presented evidence that miners traveled in the elevators to gain ac- cess to working places throughout the plant. The operators also argued that MSHA failed to provide adequate and proper notice of its by Kristin R.B. White and Adam J. Schwendeman ROCKLAW