To comply with required regulations, employers must understand which regulator oversees and enforces their worksites.
For safety and health – and in the construction, demolition and mining worlds – that means distinguishing between whether the Mine Safety & Health Administration (MSHA) or the Occupational Safety & Health Administration (OSHA) has jurisdiction over the workplace.
Depending on location, the OSHA coverage could fall to a state plan, which means OSHA has approved that state to oversee safety and health. The state agency has adopted programs and regulations that meet or exceed federal OSHA’s. Usually, this results in states adopting federal OSHA regulations but administering inspections and enforcement independently.
While both regulators have claims over certain operations, federal OSHA and MSHA do not overlap or exercise jurisdiction over the same work areas. At least, they should not.
Division of jurisdictions
MSHA and OSHA entered into an interagency agreement/memorandum of understanding (MOU) to delineate this division or authority in 1979 after MSHA was formed. The MOU forms the basis of the division of facilities and operations between the agencies for enforcement.
Some bright lines include MSHA having jurisdiction over mines, mineral processing, crushing and sizing materials, and OSHA having clear jurisdiction over manufacturing and refining operations. This distinction is maintained even when operations are co-located on the same property, such as OSHA jurisdiction over asphalt-mixing plants and concrete ready-mix or batch plants.
Even if located on an active mine, MSHA does not have jurisdiction over these operations; it falls to OSHA, as do OSHA’s regulations and training requirements. MSHA inspectors should not attempt to inspect these areas and, if they do, operators should not let MSHA inspectors go through with an inspection.
However, there are still worksites where the responsible regulator is unclear, or the agencies are attempting to claim jurisdiction over a facility historically regulated by the other. This is the basis for an ongoing case where a company is challenging MSHA’s claim of jurisdiction and enforcement at its facility.
Legal challenges
In Secretary of Labor (MSHA) v. KC Transport, a mine contractor challenges MSHA’s authority to inspect their offsite facility. KC Transport is a trucking company that sometimes contracts with mining companies to haul coal and other materials.
One day, an MSHA inspector followed KC Transport vehicles back to its facility (an off-mine property), where the company parks and maintains equipment. At the offsite facility, MSHA issued several citations to KC Transport. The company continues to challenge these based on jurisdiction, arguing that MSHA does not have jurisdiction over the facility because it is not a mine.
MSHA’s counterargument is that equipment at the KC Transport facility is used at mines. Therefore, the agency can follow the equipment from the mine site and inspect the equipment and facility because the equipment is used in the mining process.
This question is similar to a case decided in the Sixth Circuit back in 2017: Maxxim Rebuild Company LLC v. FMSHRC & MSHA. In that case, the Sixth Circuit held that MSHA does not have jurisdiction over facilities that are not on or adjacent to an active mine.
While Maxxim Rebuild stymied MSHA’s attempts to expand jurisdiction for a time, the KC Transport case marks another attempt by MSHA to extend its authority beyond mine sites.
KC Transport is currently pending in the DC Circuit after remand from the Supreme Court following its decision in Loper Bright Enterprises, which overturned Chevron deference. That means the DC Circuit has been instructed to review the case again without deferring to MSHA’s position as to why the agency believes it is reasonable to grant them jurisdiction over the off-site facility under the Mine Act.
Final thoughts
These cases underscore the importance of understanding which agency has jurisdiction. This is critical to complying with applicable regulations and ensuring employers can hold agencies accountable in the event of overreach.
Questions of which agency can regulate a worksite continue to develop. Employers need to be educated on the status of their worksites.
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Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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