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Reversal recognizes OSHA regulation in New York mining citations

Reversal recognizes OSHA regulation in New York mining citations

A federal appeals court has reversed an Occupational Safety and Health Review Commission decision that upheld an administrative law judge’s vacating of citations issued against an employer by the U.S. Occupational Safety and Health Administration.

The petition for review by the 2nd U.S. Circuit Court of Appeals arose from an action filed by the Secretary of Labor against Cranesville Aggregate Companies Inc. to enforce citations for safety hazards issued by OSHA under the Occupational Safety and Health Act, according to the appellate court’s decision in Sec. of Labor v. Cranesville Aggregate Cos. Inc.

OSHA, after receiving complaints and conducting an inspection in May 2009, issued Cranesville six citations for violations of various OSHA standards found at Cranesville’s facility, known as the “Bag Plant,” near Albany, New York. Cranesville contested the citations and argued that the Mine Safety and Health Act governed the cited work conditions, giving the Mine Safety and Health Administration authority to enforce violations at the facility.

An administrative law judge vacated the citations after concluding that because MSHA had authority over the cited working conditions, OSHA’s standards did not apply to it. The secretary sought a petition for discretionary review by the commission, but because the two commissioners present on the commission could not agree on whether the Mine Act or the OSH Act applied to the cited conditions, the administrative law judge’s decision vacating the citations became final.

“We conclude that the secretary reasonably determined that the cited workplace conditions were subject to OSHA regulation,” the 2nd Circuit said in reversing and remanding the decision. “The (administrative law judge) therefore erred in determining that the OSHA citations were not enforceable.”

The facility is subject to MSHA authority if it is a mine within the meaning of the Mine Act, according to the decision. The statute defines the term mine to include structures and facilities used in milling minerals, but the statute leaves it to the secretary to define the term milling.

“The secretary’s reasonable determination regarding which conditions are to be regulated by MSHA and which by OSHA is entitled to substantial deference,” the 2nd Circuit said. “The (administrative law judge) gave no deference whatsoever to the secretary’s decision to issue the citations for the Bag Plant violations under the authority of OSHA, but rather imposed his own interpretation of what the Mine Act covered.”

Prior to the administrative hearing on the citations, the secretary and Cranesville entered into a settlement agreement regarding several violations, with a penalty totaling $42,300, but the settlement was contingent on OSHA having authority over the facility. The remaining citations, with proposed penalties totaling $452,000, proceeded to the administrative hearing. The appeals court remanded the case for entry of an order upholding the OSHA citations and settlement agreement.

An attorney for the company could not be immediately reached for comment.





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