CHAPTER 3 JURISDICTIONAL LIMITS OF THE LAWS

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 3
JURISDICTIONAL LIMITS OF THE LAWS
Daniel R. Hale
American Metal Climax, Inc.
Denver, Colorado

The literature is already full¹ of articles discussing both the generalities and complexities of the recently passed health and safety laws, particularly the Occupational Safety and Health Act of 1970² (hereinafter "OSHA"); however, upon close analysis, I am sure that none of the problems with this legislation involves any more difficult legal questions than that of jurisdiction, particularly as it affects the mining industry.

While this paper is limited to the problems of interface between the Federal Metal and Non-Metallic Mine Safety Act³ (hereinafter called the "Metal Mine Act"), the Federal Coal Mine Health and Safety Act of 1969⁴ (hereinafter called the "Coal Mine Act"), and OSHA, there are a number of other Federal safety acts with various degrees of concurrent and overlapping jurisdiction, such as the Contract Work Hours and Safety Standards Act of 1962 (Construction Safety Act),⁵ The Longshoremen's and Harbor Worker's Compensation Act,⁶ certain surviving aspects of the Walsh-Healy Public Contracts Act,⁷ The Railway Labor Act,⁸ and even the National Foundation on Arts and Humanities Act.⁹ These laws are in addition to various state health and safety acts which have not been pre-empted by the Federal laws¹⁰ and other acts which, while purporting to regulate matters other than health and safety, have resulted in regulations more closely related to health and safety. An example is the Regulation of Explosives sections of the Organized Crime Control Act of 1970,¹¹ where the stated purpose of the Act

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was to aid in the fight against organized crime, but whose regulations are more in the nature of safety regulations.¹²

The problem of conflicting jurisdiction is certainly not a new one, but the severity of the penalties under the principal Acts, which may be cumulative,¹³ make the question of jurisdiction extremely important as a practical matter to employers and mine operators.¹⁴ In addition to fines and jail sentences, withdrawal or closure orders, together with compliance orders, may be issued.¹⁵ Orders of this type may in fact be the most effective penalty of all.

In addition to the problems of overlapping jurisdiction, there are jurisdictional questions within the Acts themselves. Who is guilty of the violation—employer, employee or a subcontractor or agent or their employees and who is covered by the various Acts?

I. Overlapping Jurisdiction.

OSHA basically applies to all employment.¹⁶ The legislative history of the Act indicates that Congress intended to exercise its powers under the Commerce Clause to the fullest extent possible,¹⁷ a very broad power indeed.¹⁸ From this broad coverage are exempted the "working conditions of employees with respect to which other Federal agencies, and State agencies acting under Section 274 of the Atomic Energy Act of 1954, as

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amended, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."¹⁹ From this definition, it could be argued without undue strain that mines subject to regulation under the Coal Mine Act or the Metal Mine Act would not be subject to OSHA.

There are, however, two major pitfalls in this analysis. The first of these is that, while OSHA applies its coverage to classes of people, the Metal Mine Act and Coal Mine Act cover a class of activities. This problem is compounded by the fact that the coverage of the Metal Mine Act and Coal Mine Act is not necessarily as clear as one might hope. The Metal Mine Act is applicable to mines affecting commerce, but the term "mine" is defined in terms of production and extraction of minerals.²⁰ Compare this definition with the definition of "coal mine" in the Coal Mine Act, which appears to include all preproduction work,²¹ as well as the usual and customary work which immediately follows the mining activity.²²

One of the problems that becomes readily apparent from these definitions is that the preparation for production of a major underground or open pit non-coal mines can take periods of up to fifteen years from the time of discovery. This might result, to the dismay of many mine operators, that in the appropriate case the mine will be subject to OSHA rather than the Metal Mine Act.

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The second major problem in the area of overlapping jurisdiction is the so-called "gap theory." This is a theory proposed by the Department of Labor which maintains that, in the event another Federal agency has failed to exercise health and safety authority over a specific subject matter, even though there is clear jurisdiction in the other Federal agency, OSHA assumes jurisdiction over the subject matter to the extent that the other federal agency does not exercise its authority to prescribe standards for that particular subject matter.²³

The problems raised by the gap theory are both procedural and substantive. First of all, it would apply new procedures with respect to enforcement, inspection and appeal foreign to most mining operations. It would also result in expensive nuisances to mine operators by requiring a second set of records to be kept.²⁴ It would also establish new substantive provisions like employee complaints, employee representative walk arounds, and the general duty clause.²⁵ These items would be in addition to an entirely different set of health and safety standards which may or may not be applicable to mining situations. Although a narrow interpretation of the distinction between "authority" and "jurisdiction" might give some credence to this theory, common sense and the legislative history of OSHA indicate that OSHA was to apply only where there was a complete abrogation of duty or action by the other Federal agency.

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Early drafts of the House Bill, H.R. 16785 provided in § 22(b) that "Nothing in Section 5 of this Act shall apply to working conditions of employees with respect to whom any Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health."²⁶ The report accompanying the Bill explained that the Committee did not wish the Secretary of Labor to assert his statutory authority under this Bill where another agency or department is actually exercising its authority.²⁷

The Steiger-Sikes Amendment added to the Bill during floor debate on November 23 and 24, 1970 provided as follows:

Nothing in this Act shall apply to working conditions of employees, with respect to whom other Federal agencies, and state agencies acting under § 274 of the Atomic Energy Act of 1954, as amended, exercised statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.²⁸

During debate on this Amendment, Representatives Erlenborn, Perkins and Daniels discussed the problem of dual coverage. Rep. Erlenborn pointed out to the Chairman that the so-called "gap theory" potential existed. Rep. Perkins answered this by

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saying the following:

I would say to my distinguished colleague that he is incorrect in that statement because all of these various legislative Acts as the railway safety and mine safety are specifically exempted under § 22(b).

Rep. Daniels of New Jersey then inserted:

All federal agencies which are covered by the health and safety laws will be exempt from this act—with just one exception, that is the construction industry.

Rep. Erlenborn then went on:

Now, let me pose a couple of alternative questions. If there is authority under the federal law, but it has not yet been put into effect and it is not being exercised by the executive agency because they have no rules or regulations, then until they do adopt rules and regulations and

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exercise that authority this does apply; is that correct?

Rep. Daniels of New Jersey:

Yes, that would be correct. The gentleman has placed his finger on the key word—and the key word is "exercise". If an agency fails to pursue the law and exercise the authority that has been given to it, then this law will step in. (emphasis added)

Rep. Erlenborn:

In other words, the mere existence of statutory authority does not exempt an industry. It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?

Rep. Daniels of New Jersey:

That is correct.

Rep. Erlenborn:

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I have one other question. This will certainly clear up any difficulty in interpreting it so far as the presently existing statutory authority presently being exercised. Let me ask this question.

If the presently existing statutory authority...