Sixth Circuit Ruling Offers Clarity on Jurisdictional Border Between MSHA and OSHA

The U.S. Court of Appeals for the Sixth Circuit recently added some small clarity to the murky jurisdictional border between the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA). Issued on May 5, 2023, Jones Brothers, Inc., v. Secretary of Labor addressed whether Jones Brothers, a construction company, was operating a “borrow pit” under OSHA’s jurisdiction or a “mine” under MSHA’s jurisdiction. The Sixth Circuit relied on the interagency agreement between MSHA and OSHA and affirmed the Federal Mine Safety and Health Review Commission’s (FMSHRC) ruling that Jones Brothers was operating a mine.

Quick Hits

• The Sixth Circuit held that an extraction site failed to meet the interagency agreement’s requirements to qualify as a “borrow pit” that falls under OSHA’s jurisdiction.
• The court’s decision highlights the level of deference courts give to MSHA when it comes to deciding its own jurisdiction.

Background

The case began with a road repair project. The Tennessee Department of Transportation (TDOT) hired Jones Brothers to repair a collapsed road. For this project, TDOT required the use of “graded solid rock” for the bottom layer of the new road. TDOT’s requirements for the graded solid rock included specifications regarding the material’s size, shape, and hardness and an approval of a sample.

After TDOT approved a sample of material from land Jones Brothers had leased, the company began extracting material. Jones Brothers extracted material from the site up to six days per week for several months. Before using the material in the project, Jones Brothers separated material that met TDOT’s requirements from material that did not.

About eight months after Jones Brothers began extracting material, an MSHA inspector saw the site from a nearby road and conducted an inspection. That inspection resulted in seven citations and two orders.

FMSHRC Proceedings

Before a FMSHRC administrative law judge, Jones Brothers challenged only MSHA’s jurisdiction, arguing that the site was a “borrow pit” subject to OSHA’s jurisdiction under the interagency agreement, and that MSHA had no jurisdiction over the site.

The interagency agreement defines a “borrow pit” as

an area of land where the overburden, consisting of unconsolidated rock, glacial debris, other earth material overlying bedrock is extracted from the surface. Extraction occurs on a one-time only basis or only intermittently as need occurs, for use as fill materials by the extracting party in the form in which it is extracted. No milling is involved, except for the use of a scalping screen to remove large rocks, wood and trash. The material is used by the extracting party more for its bulk than its intrinsic qualities on land which is relatively near the borrow pit.

A borrow pit thus must satisfy five requirements:

• The extracted material must constitute overburden.
• The extraction must be on a one-time basis or intermittent.
• The extracted material must not be milled, beyond the use of a scalping screen “to remove large rocks, wood and trash.”
• The extracted material must be used more for its bulk as fill than for the material’s intrinsic qualities.
• The extraction site must be relatively near the location where the extracted materials will be used.

A site must meet all five requirements to be a borrow pit and fall under OSHA’s sole jurisdiction.

The administrative law judge found that the site failed to satisfy three of the five requirements. Specifically, the judge found that the extraction did not occur on a one-time or an intermittent basis, the extracted material was milled, and the material was being used more for its intrinsic qualities than for its bulk.

The judge ruled that MSHA had jurisdiction. Jones Brothers appealed this decision to FMSHRC, but the Commission denied review of the decision, and the judge’s decision became the final decision of the Commission.

The Sixth Circuit’s Decision

Jones Brothers appealed the Commission’s decision to the Sixth Circuit. In considering MSHA’s jurisdiction, the Sixth Circuit, like the ALJ, first looked to the definition of a mine under the Mine Act and the interplay between the Mine Act and the interagency agreement. While first acknowledging the broad definition of the term “mine” under the Mine Act, the Sixth Circuit held that the interagency agreement had narrowed that definition by excluding borrow pits. The Sixth Circuit also ruled that the secretary of labor receives deference when he or she makes choices involving the coverage of MSHA and OSHA.

The Sixth Circuit then considered whether there was substantial evidence to support the ALJ’s conclusion that the site failed to qualify as a borrow pit. The Sixth Circuit considered only two of the five borrow-pit requirements—whether the extraction occurred on a one-time or an intermittent basis and whether the extracted material was used more for its bulk—stating it was “unnecessary” to address the other requirements.

First, the Sixth Circuit held that there was substantial evidence that the extraction was not conducted on a one-time or an intermittent basis. The court rejected Jones Brothers’ argument that the extraction was conducted on a one-time basis because it was for one project. In rejecting this argument, the court pointed to the frequency of the extraction—up to six days per week for several months—and the amount of extracted material: 68,615 tons.

Second, the Sixth Circuit held that there was substantial evidence that the material was being used more for its intrinsic qualities than for its bulk. Specifically, the court held that, while the material was being used for bulk, the TDOT requirements as to the size, hardness, and shape of the material indicated that the material was being used more for these qualities than for its bulk.

Because the site failed to meet these two necessary requirements for a borrow pit, the Sixth Circuit affirmed the FMSHRC decision, concluding the site was a mine subject to MSHA’s jurisdiction.

Key Takeaways

The Jones Brothers decision highlights not only the complicated jurisdictional interplay between MSHA and OSHA, but also the level of deference courts give to MSHA when it comes to deciding its own jurisdiction. When Jones Brothers looked for support outside the interagency agreement and under its contract with TDOT—which defined “graded solid rock” as being in the category of “borrow excavation”—the court rejected the argument as “not determinative.” The Sixth Circuit held that “[t]he Secretary and the Commission, along with the courts, determine the meaning of borrow material in the context of the Interagency Agreement and the Mine Act,” not TDOT.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Mine Safety blog as additional information becomes available.

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