Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/803901
AGGREGATES MANAGER / April 2017 39 U.S. Court of Appeals checks the agency's effort to expand its sphere of regulatory influence. Patrick W. Dennison is an attorney with Jackson Kelly PLLC's Pittsburgh office where he practices in the Occupational Safety and Health Practice Group and the Coal and Oil and Gas Industry Group. He can be reached at 412-434-8815 or pwdennison@jacksonkelly.com MSHA's Overreach is Denied O n Feb. 13, 2017, the U.S. Court of Appeals for the Sixth Circuit reversed a decision by the Federal Mine Safety and Health Review Commission (Commission) and held that a shop which makes and repairs mining equipment was not a "coal or other mine" subject to regula- tion by the Mine Safety and Health Admin- istration (MSHA). Maxxim Rebuild Co., LLC v. Sec'y of Labor, et al., _ F.3d _ (6th Circuit 2017), slip op., available at 2017 WL 563083. Maxxim Rebuild Co. (Maxxim) operated the shop. Maxxim's parent company is Alpha Natural Resources. Maxxim had six shops at various loca- tions and a seventh location that served as an equipment depot where surplus equipment was stored and sold for various companies. The site at issue was located in Sidney, Ky., on property owned by Sidney Coal Co. (another Alpha subsidiary). Approximately 75 percent of the work of the shop was related to equip- ment used by Alpha, and the rest of the work was for other mining companies and for repair shops that might sell the equipment to mining or non-mining companies. Out of Maxxim's seven facilities, only two were regulated by MSHA. The Occupational Safety and Health Administration (OSHA) regulated the other Maxxim shops. OSHA previously regulated the Sidney employees when they did the same work in a smaller facility in Matewan, W.Va., but MSHA reasserted jurisdiction when the shop moved to the Kentucky location. In 2013, MSHA issued citations to Maxxim for conditions at the Sidney shop. Maxxim's contest of the citations resulted in two dockets, decided separately by the admin- istrative law judge. The ALJ upheld MSHA's assertion of jurisdiction and the issuance of the citations. Maxxim Rebuild Co., LLC, 35 FMSHRC 3261 (ALJ Miller October 2013); Maxxim Rebuild Co., LLC, 36 FMSHRC 378 (ALJ Miller February 2014). Maxxim appealed the ALJ's decisions, and the Commission af- firmed jurisdiction. Maxxim Rebuild Co., LLC, 38 FMSHRC 605 (Review Commission April 2016). The Commission found that MSHA had jurisdiction based on the language of ยง 3(h) (1)(C) of the Mine Act because the shop was a "facility used in the process of extracting and preparing coal" given that it maintains, repairs, and fabricates equipment used in the mining process and was located on an abandoned mine property. The Commission relied heavily on its 2000 decision in Jim Walter Resources, Inc. and found that jurisdiction was proper because approximately 75 percent of the shop's work was performed on equipment used in coal extraction and preparation activi- ties for Alpha Natural Resources' subsidiaries. The Commission further found that MSHA did not abuse its discretion or otherwise act im- properly by asserting jurisdiction over Sidney when it had not previously asserted jurisdic- tion over it or other similarly situated shops. Finally, the Commission rejected Maxxim's argument that OSHA's standards, not MSHA's, were more appropriate. In its decision, the Sixth Circuit pulled by Patrick W. Dennison ROCKLAW