When asked for comment on the recent opinion by the U.S. Court of Appeals for the Third Circuit in Shamokin Filler Co. v. Fed. Mine Safety and Health Review Comm’n, which held that a coal processor was subject to the jurisdiction of the Mine Safety and Health Administration (MSHA) instead of the Occupational Safety and Health Administration (OSHA), Squire Patton Boggs’ Denver Managing Partner Peter Gould told Bloomberg BNA that “All things being equal, the secretary of labor has historically resolved MSHA/OSHA jurisdictional questions in favor of MSHA, and the Federal Mine Safety and Health Review Commission and the U.S. Circuit Courts of Appeal frequently support those jurisdictional determinations.” However, the Third Circuit’s affirmation of the exclusion of evidence that MSHA has not exercised jurisdiction of similarly situated facilities is concerning as Peter points out: “The court’s refusal to allow evidence of MSHA’s disparate treatment of facilities similar to Shamokin suggests that there is no means of ascertaining and rectifying the secretary of labor’s alleged disparate treatment of like or similar mineral handling facilities, and thus, whether the agency acted arbitrarily and contrary to legal authority.” The full BNA article is attached (Shamokin) reproduced with permission from Occupational Safety & Health Reporter, 44 OSHR 669 (July 17, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.
