Court Affirms That Kaiser Subject to MSHA

June 21, 2000
Ruling rejects Kaiser Aluminum's effort to keep the Mine Safety\r\nand Health Administration from investigating accident.

A three-member panel for the U.S. Court of Appeals for the 5th Circuit unanimously rejected Kaiser Aluminum''s attempt to defeat jurisdiction of the Mine Safety and Health Administration (MSHA) over Kaiser''s Gramercy, La., alumina facility.

The legal challenge grew out of a July 5, l999, explosion at the Gramercy facility that injured 29 workers, six of them severely. When MSHA investigators subpoenaed Kaiser documents, the company responded by moving to quash the subpoenas and challenged MSHA''s authority to act.

Earlier this year, a district court in New Orleans rejected Kaiser''s attempt, ruling that the Gramercy facility "milled" minerals and was subject to MSHA enforcement authority. Last week''s circuit court ruling affirms that judgment.

At the time of the blast, Kaiser had locked out its work force, some 400 members of the United Steelworkers of America (USWA), and replaced them with temporary workers. The labor dispute between Kaiser and the Steelworkers is in its 21st month.

The court upheld MSHA''s jurisdiction to investigate the accident, subpoena Kaiser employees and review internal documents prepared before the blast by the company''s Overpressure Protection Committee. Kaiser argued that certain subpoenaed documents were privileged information. The documents must be produced and may provide answers regarding pre-accident safety practices at Kaiser.

In the underlying enforcement case, MSHA recently levied a $533,000 fine against Kaiser, the largest in the agency''s history in any case involving a nonfatal accident. The agency issued 21 violations against Kaiser, including operating the plant beyond its limits, lack of worker training and "management''s failure to identify hazardous conditions and unsafe practices."

As reported earlier this year in the Wall Street Journal, MSHA has been conducting a special investigation of the Gramercy blast that could lead to a referral of the case to the U.S. Justice Department for a criminal investigation.

Kaiser suffered a second legal defeat June 12 when MSHA Administrative Law Judge Gary Melick denied its attempt to prevent the Steelworkers from intervening in the contested Gramercy citation cases.

David Foster, the Steelworkers'' lead negotiator in the Kaiser lockout, said, "The courts are making it very clear that Kaiser needs to accept responsibility for its actions. Instead of always trying to tie matters up in protracted court proceedings, Kaiser needs to get on the road to recovery by bringing Steelworkers back to work."

USWA members struck Kaiser Aluminum in response to the company''s substandard contract offer Sept. 30, 1998, and offered to return to work Jan. 13, 1999. On Jan. 14, 1999, the company locked out more than 2,900 USWA members at its plants in Gramercy, as well as in Newark, Ohio, and Tacoma and Spokane, Wash.

by Todd Nighswonger

About the Author

EHS Today Staff

EHS Today's editorial staff includes:

Dave Blanchard, Editor-in-Chief: During his career Dave has led the editorial management of many of Endeavor Business Media's best-known brands, including IndustryWeekEHS Today, Material Handling & LogisticsLogistics Today, Supply Chain Technology News, and Business Finance. In addition, he serves as senior content director of the annual Safety Leadership Conference. With over 30 years of B2B media experience, Dave literally wrote the book on supply chain management, Supply Chain Management Best Practices (John Wiley & Sons, 2021), which has been translated into several languages and is currently in its third edition. He is a frequent speaker and moderator at major trade shows and conferences, and has won numerous awards for writing and editing. He is a voting member of the jury of the Logistics Hall of Fame, and is a graduate of Northern Illinois University.

Adrienne Selko, Senior Editor: In addition to her roles with EHS Today and the Safety Leadership Conference, Adrienne is also a senior editor at IndustryWeek and has written about many topics, with her current focus on workforce development strategies. She is also a senior editor at Material Handling & Logistics. Previously she was in corporate communications at a medical manufacturing company as well as a large regional bank. She is the author of Do I Have to Wear Garlic Around My Neck?, which made the Cleveland Plain Dealer's best sellers list.

Nicole Stempak, Managing Editor:  Nicole Stempak is managing editor of EHS Today and conference content manager of the Safety Leadership Conference.

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