Rock Products

MAR 2017

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90 • ROCK products • March 2017 www.rockproducts.com LAW MSHA's appetite for authority is nearly insatiable. Granted, gluttony of this sort is rather common amongst administra- tive agencies, and the struggle to control their intake is a never-ending one. Nevertheless, it is rather satisfying to see the Sixth Circuit Court of Appeals force MSHA to back away from the buffet table. In its Feb. 13, 2017, decision in Maxxim Rebuild Co. LLC v. Federal Mine Safety and Health Review Commission, a unanimous panel of judges held that the Mine Act's defini- tion of "'coal or other mine" refers to locations, equipment and other things in above, beneath or appurtenant to active mines." Thus, MSHA does not have jurisdiction over a shop that makes and repairs mining equipment and machine parts that is not located on mine property. The case centered on a repair shop located in Sidney, Ky., on land owned by a mining company. Maxxim Rebuild LLC moved the shop from West Virginia to the Sidney site in Jan- uary of 2012, after it expanded and updated the shop area on the property. The property had previously been home to mining operations, but those operations had been aban- doned. Offices above the shop were occupied by engineers employed by a coal company. Maxxim employed seven people at the shop. The shop devoted about 75 percent of its time working on mining equipment owned by Maxxim's parent, a coal company. The rest was spent repairing mining equipment owned by other mining companies. The Sidney shop was one of seven repair shops operated by Maxxim in six locations in two states. One of the seven shops was an underground repair shop that was also adjacent to a coal preparation plant. That shop was the only shop out of the seven that MSHA regulated before MSHA arrived to inspect the Sidney shop. OSHA regulated the other shops. First Inspection MSHA's first inspection of the Sidney shop produced three citations. • One citation alleged that the shop did not have a complete copy of its Hazard Communication Program on-site. •  The second citation alleged that one of the shop's bath- rooms and the change room were dirty. • The third citation alleged that an accumulation of grease, Limiting MSHA's Jurisdiction: Is It Connected to a Working Mine? The Sixth Circuit Court of Appeals Overruled MSHA and the Commission. Find Out Why. By Brian Hendrix diesel and dust on a loader at the shop constituted a Sig- nificant & Substantial violation. MSHA inspected the facility again and again issued a handful of citations to Maxxim. Maxxim contested both sets of cita- tions, arguing that MSHA did not have jurisdiction over the Sidney shop. MSHA maintained that the Sidney shop qualifies as a "coal or other mine" under the Mine Act because it is a "facility" that is "used in" the process of extracting and preparing coal. It maintains, repairs and fabricates equipment that is used in the mining process, including belt heads, highwall miners, loaders, excavators and other equipment used the extraction process. To MSHA, the "activities conducted at the Maxxim shop [were] an integral part of the mining process." Judge Miller completely agreed with MSHA, and so did the Commission. In fact, the Commission unanimously affirmed Judge Mill- er's decisions, noting that "Commission case law strongly supports" the conclusions that shop qualified as a "mine." The Commission held seventeen years ago that MSHA had jurisdiction over a Jim Walter Resources Inc. machine shop that was similar to the Sidney repair shop. As the Commission explained it, "the Sidney shop constitutes a 'mine,' because, despite being loaded off-site, it fabricates, repairs and stores equipment that is used in conjunction with the extraction and preparation of coal." Last Word Fortunately for Maxxim (and the mining industry), the Com- mission did not have the last word. On appeal, the Sixth Circuit took a very different approach than the Commission. Brian Hendrix, a member of Husch Blackwell's Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compli- ance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. Brian.Hendrix@huschblackwell.com, 202-378-2417.

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