Federal Mine Safety & Health Act of 1977-an Overview
| Jurisdiction | United States,Federal |
| Citation | Vol. 8 No. 9 Pg. 1586 |
| Pages | 1586 |
| Publication year | 1979 |
1979, September, Pg. 1586. Federal Mine Safety & Health Act of 1977-An Overview
Charles W. Newcom, Denver, is an associate of the firm of Dawson, Nagel, Sherman and Howard.
On March 9, 1978, the Federal Mine Safety and Health Act of 1977 (hereinafter "the 1977 Mine Act")(fn1) went into effect. That act repealed the Federal Metal and Nonmetallic Mine Safety Act of 1966 (hereinafter "the 1966 Metal and Nonmetallic Act")(fn2) and amended the Federal Coal Mine Health and Safety Act of 1969 (hereinafter "the 1969 Coal Act")(fn3) by both expanding the provisions of the 1969 Coal Act and extending its coverage to include all mines, rather than only coal mines.
Although there are several significant new provisions, the basic requirements of the 1977 Mine Act will be familiar to coal operators who were subject to the 1969 Coal Act. For all practical purposes, the 1977 Mine Act presents an entirely new regulatory scheme for operators of metal and nonmetallic mines. Since it applies to all surface and underground mines, sand, gravel, and crushed stone operations,(fn4) certain mine exploration and development activities, and independent contractors doing work for any of the foregoing operations, the 1977 Mine Act will have a significant impact on many Colorado businesses and their employees.
This article is designed to give practicing lawyers representing companies subject to the jurisdiction of the 1977 Mine Act an overview of some of the key provisions of Title I of the Act and the impact of those requirements. Primary focus will be upon the following points: (1) problems regarding jurisdiction and liability under the 1977 Mine Act; (2) enforcement tools and their impact upon the mine operator; (3) procedures for appeal of citations and orders and factors to consider in an appeal; (4) handling investigations of accidents; and (5) suggestions for preparation for inspections. Titles II, III, IV, and V deal with certain coal mine health and safety standards, black lung benefits, and administration. Safety issues also raise a number of practical and legal employee relations considerations for both union and non-union employers. These matters are not dealt with here. Given the myriad of issues raised under the 1977 Mine Act, it is not possible to treat and resolve all issues in a single article. It is possible to outline the basic regulatory scheme however, and note particular problem areas.
The 1977 Mine Act is a product of a number of factors. Probably the central factor leading to the act was Congress' view that the 1969 Coal Act and 1966
Metal and Nonmetallic Act were ineffective. Particular concerns expressed in the oversight hearings on the 1969 Coal Act and in the legislative history of the 1977 Mine Act included a lack of vigorous enforcement of those acts by the Mine Enforcement Safety Administration (MESA), insufficient enforcement tools for MESA, insufficient enforcement of employee rights, and (particularly among Eastern coal operators) an apparent unwillingness of a number of mine operators to take any meaningful steps to promote employee safety. Another expressed concern was that the Department of Interior which was charged with enforcing these acts was too mine-operator oriented.(fn5) However one may feel about the merits of these various arguments, most of these arguments were apparently accepted by Congress and a strong act was passed which, at least on its face, gives government inspectors broad discretion.
Both the 1969 Coal Act and the 1966 Metal and Nonmetallic Act were administered by the Secretary of Interior. The 1977 Mine Act establishes a new independent commission, the Federal Mine Safety and Health Review Commission (hereinafter "the Commission"), with adjudicatory responsibilities under the act.(fn6) Enforcement (prosecutorial and rulemaking functions) was transferred from the Department of Interior to the Department of Labor.(fn7) The 1977 Mine Act establishes a Mine Safety and Health Administration (MSHA) within the Department of Labor which is charged with administration and enforcement of the act.(fn8)
The basic enforcement scheme of the act is outlined in §§ 103 through 113, inclusive. Section 101 provides for the promulgation of mandatory safety and health standards and § 102 provides for the formation of advisory committees to conduct mine safety research. Section 114 provides for appropriations and § 115 deals with training.
In addition to promulgating health and safety standards, MSHA enforces these standards through mine inspections. The 1977 Mine Act requires that authorized representatives of the Secretary of Labor, mine inspectors, make "frequent inspections and investigations."(fn9) These inspections or investigations have four objectives:
1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases and physical impairments originating in [coal or other] mines,
2) gathering information with respect to mandatory health or safety standards,
3) determining whether an imminent danger exists, and
4) determining whether there is compliance with the mandatory health or safety standards or with any citation, order, or decision issued under this title or other requirements of this Act.(fn10)
The 1977 Mine Act requires that underground mines be inspected in their entirety at least four times per year and that surface mines be inspected at least two times per year.(fn11) The act also makes special provision for more frequent inspection of mines which liberate excessive quantities of methane or other explosive gases, mines which have had a methane or other gas ignition or explosion, and mines which have some other "especially hazardous condition."(fn12)
During each inspection, a mine inspector may issue a variety of citations or orders.(fn13) Each of these is discussed below. Each citation and order issued under § 104, if ultimately sustained, will lead to a civil penalty which, depending upon the nature of the violation, could result in a fine as high as $10,000 or $1,000 per day the violation went uncorrected. The
1977 Mine Act also has criminal sanctions for certain willful or knowing misconduct.(fn14)
Either a mine operator or a miner or representative of miners may appeal various aspects of a citation or order. Normally such an appeal must be taken within thirty days.(fn15) If a challenge to some aspect of a citation or order is filed, that challenge will be heard by an administrative law judge of the Commission. The administrative law judge will either affirm, modify, or vacate the action of MSHA, or direct "other appropriate relief."(fn16)
After the administrative law judge's decision has been issued, any person adversely affected or aggrieved by the decision may file a petition for review with the Commission within thirty days from the date of the issuance of the decision.(fn17) Commission review is discretionary and limited to issues raised before the administrative law judge.(fn18) If no appeal is filed within thirty days, the judge's decision becomes a final order of the Commission. If an appeal is filed with the Commission, any person adversely affected or aggrieved by the resulting order of the Commission may seek review of that order in either the United States Court of Appeals for the circuit in which the violation is alleged to have occurred or the United States Court of Appeals for the District of Columbia. Such review must be requested within thirty days after issuance of the order of the Commission.(fn19)
For the most part, MSHA's jurisdiction is clear. It applies to all mines, coal and non-coal. It includes working conditions in underground and surface workings, milling facilities, and surrounding facilities used in, or to be used in, the extraction of minerals.(fn20) Several problems should be noted, however.
Federal safety law provides that all employers engaged in a business affecting commerce are subject to the jurisdiction of the Occupational Safety and Health Administration (OSHA), or an approved state agency, unless some other federal agency has exercised its statutory authority to prescribe or enforce health or safety standards.(fn21) Thus, at least arguably, if MSHA chooses not to assert jurisdiction over some aspect of a mining operation, jurisdiction falls to OSHA.(fn22) Thus, the problem for a mine operator is not whether it will be subject to federal safety laws, but whether it will be subject to MSHA or OSHA, or some combination of the two.
On March 29, 1979, MSHA and OSHA entered into a jurisdictional agreement.(fn23) While this agreement is
helpful in delineating the scope of authority between the two agencies in milling and mineral processing operations, it is unclear as to the status of surface support facilities such as laboratories and administration buildings. The implication of the agreement is that such facilities will be subject to OSHA rather than MSHA jurisdiction.(fn24)
Because the requirements under OSHA and MSHA vary, it will be important to review carefully the circumstances at a particular facility to insure that a company's safety personnel look to the proper regulatory and reporting requirements. An operator may or may not wish to seek an opinion from MSHA or OSHA as to jurisdiction over support facilities. The operator may wish to raise the issue in order to have the matter resolved. On the other hand, the operator may wish to defer the matter to see which agency acts first.
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