MSHA’s jurisdiction extends to the barge staging area of a terminal that employs workers who prepare and load the barges with shipments of coal. An administrative law judge made this ruling in a case arising after a 52-year-old deckhand fell off a barge into the Tennessee River in February 2012 and drowned.
To rule otherwise, ALJ David P. Simonton said, would lead to the absurd result that load-out employees could be covered by MSHA on and off throughout their workday depending on whether their duties took them to the land- based portion of the facility or onto the barges. ALJ Simonton also held that not extending coverage over the entire load-out operation would conflict with congressional intent that MSHA be given the benefit of any doubt in jurisdictional disputes.
At the time of the accident, the employee had been measuring the storage capacity of a barge to determine how much coal it could carry. The case was brought by his employer, SCH Terminal Co., Inc., which operates the Calvert City Terminal in Kentucky, challenging MSHA citations The facility stores coal, blends it to customer specifications and ships it by rail, truck and barge. The terminal facility consists of a land processing portion, a fixed loading dock and a barge staging area. Since the victim was on a moveable barge at the time of the accident, SCH asserted he was outside MSHA’s jurisdiction. SCH neither owns the barges nor the tugboats that move them. However, its employees are fully engaged in the loading process from the time the barges arrive in the staging area until the barges are released downriver fully loaded. The work requires employees move back and forth among the three facility subunits and maintain communication with the load-out operator.
In deciding against SCH, ALJ Simonton also noted the Federal Mine Safety and Health Review Commission has ruled that operations taking place at a single site must be viewed as a collective whole; otherwise, separate business identities could be set up along functional lines with each doing some part of a job that in reality is a single operation.
For SCH, the decision means it could be liable for the $163,000 in fines MSHA assessed in connection with the accident. However, ALJ Simonton’s decision also has ramifications for other load-out facilities set up in a similar way.