By Ellen Smith
A two-person excavation company that provides fill for excavation sites and yards does not fall under MSHA jurisdiction. The size was not a factor, but the fact that the operation is that of a “borrow pit” under OSHA jurisdiction, according to a ruling of ALJ Jerold Feldman.
The ruling clarifies the dictates of the MSHA-OSHA interagency agreement.
The owner, David Duquette, has two screens that he uses to remove tree roots and boulders from “scalped” material. The material was then used as fill for yards and around foundations. It was stipulated that the pit worked less than 200 hours per year, and that the purpose of the fill was to level yards. He would use material from his pit to fill yards an average of three times each year.
Duquette was given two opposing views by MSHA. First he was told that he was not under MSHA jurisdiction because the pit was in service less than 200 hours each year, in combination with the fact that the material was fill.
Then Duquette was told by MSHA’s Dennis Yesko that the pit was under MSHA jurisdiction because the material was going into interstate commerce.
Duqette was inspected, and received nine citations for problems found on his dump truck, front end loader, a berm violation and an alleged violation for failing to notify MSHA about his operation. Proposed penalties totaled $908.
The Secretary moved for a summary decision on the issue of jurisdiction. Duquette, acting pro-se, did not respond, but objected to the citations at issue based on a lack of jurisdiction. Judge Feldman said he construed, “Duquette’s previous objections … as a cross motion for summary decision,” allowing the case to proceed.
Definition of a Borrow Pit
In 1996 a clarification was added to the 1979 MSHA-OSHA agreement. That clarification stated that a site is a “borrow pit” if the landowner has a loader and uses bank run material to fill potholes in a road, low places in the yard, etc., and no milling or processing is involved, except for the use of a portable or stationary scalping screen to remove large rocks, wood or trash.
A key factor in determining whether a site is a borrow pit also includes whether the site is intermittent, or a continuous-use site. In a previous case involving Kerr Enterprises (26 FMSHRC 955), it was determined that the site was a mine and not a borrow pit where there was continuous extraction and Kerr sold clay, sand and topsoil on a regular basis to landscapers, concrete companies and refinery contractors.
In previous cases involving Alaska and New York state departments of transportation, it was determined that continuous extraction and stockpiling sand for spreading on roads and runways are not borrow pits and under MSHA jurisdiction (33 FMSHRC 1550 and 2 FMSHRC 1749).
In Duquette’s case, the “extraction” occurred a couple of times each year as the need arose, and it was fill material used in the form in which it was extracted, rather than mined for its intrinsic value or quality.
The material was trucked off site to use around foundations or yards, and under the MSHA-OSHA agreement, the material should be used on land “relatively near the borrow pit.”
However, that distance is not defined under the agreement, and Judge Feldman said the “the transportation of the bulk material, in and of itself, does not negate a borrow pit characterization … the overwhelming balance of the evidence reflects that Duquette’s extraction site constitutes a borrow pit, as contemplated by the Secretary in his Interagency Agreement and Interpretive Guidelines.”
DAVID DUQUETTE EXCAVATING and JESSICA RUSSELL, 4/8/2015, FMSHRC(J) No. YORK 2012-303-M