MSHA’S Jurisdiction Over Borrow Pits

Does MSHA Really Have Jurisdiction Here? It Depends.

By Brian Hendrix

Once or twice a year, I receive a call from a company asking me some variation of this question: Does MSHA really have jurisdiction here? The “here” part of the question differs from call-to-call. It may be a maintenance shop located miles away from any mine, a facility that doesn’t resemble or operate a mine in any way, or a piece of property where mining ceased years ago. 

Some of these questions are easy to answer, a few are not and an even smaller number are actually litigated. The most recent example of this is the May 5, 2023, decision by the United States Court of Appeals for the Sixth Court of Appeals in Jones Brothers, Inc. v. Secretary of Labor. 

Jones Brothers is a Tennessee-based construction company that contracted with the Tennessee Department of Transportation for a road repair project. To obtain the solid graded rock TDOT specified for the project, Jones Brothers identified a deposit of rock on an area of land near the project, leased the land, prepared it and began drilling and blasting to extract the rock. The property also served as a waste pit for material from the road project. 

Seven months later, an MSHA inspector arrived on-site and issued several citations and orders to the company. The company contested the citations and orders, arguing that it was operating a “borrow pit,” not a mine. MSHA has jurisdiction over all “mines.” However, in the late 1970s, MSHA and OSHA agreed that OSHA would have jurisdiction over “borrow pits.”

Operating as a Mine
After a hearing, Judge Rae held that Jones Brothers was operating a “mine,” not a “borrow pit” because it: “(1) did not only use the site on a one-time basis or only intermittently; (2) engaged in milling, sizing, and crushing; and (3) did not use the rock more for its use as bulk fill than for its intrinsic qualities.” The Commission refused to review the decision, and Jones Brothers appealed it to the Sixth Circuit.

The Sixth Circuit agreed with Judge Rae. The court’s reasoning was informed or based primarily on two sources. First up was the Interagency Agreement between OSHA and MSHA where the agencies defined “borrow pit” as: 

[A]n 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.

Next, the court cited the MSHA’s Program Policy Manual where MSHA explained that: 

[I]f earth is being extracted from a pit and is used as fill material in basically the same form as it is extracted the operation is considered to be a “borrow pit.” For example, if a 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 scalping screen, the operation is a borrow pit. 

The scalping screen can be either portable or stationary and is used to remove large rocks, wood or trash. In addition, whether the scalping is located where the material is dug, or whether the user of the material from the pit is the owner of the pit or a purchaser of the material from the pit, does not change the character of the operation, as long as it meets the other criteria.

Five General Requirements
From these two sources, the court identified “five general requirements for a borrow pit:

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

All five must be met in order to qualify as a “borrow pit.” And, while “mining” has been defined and interpreted quite broadly, “borrow pit” is very narrowly defined.

Judge Rae did not address the first requirement. However, the court held that there was substantial evidence to “at least support” Judge Rae’s findings on the second and fourth requirements. More specifically, the court held that “[W]hile the record on this issue is murky, there is substantial evidence (which is, as noted, a relatively low bar) to support the [Judge Rae’s] conclusion that extraction at the site occurred more often than one-time or intermittently.” 

The operation was “somewhere in between continuous, full-time extraction” and a “very sporadic operation.” The court then noted that the pit at issue in this case was analogous to the pit considered by the Commission in an earlier case. In the earlier case, the Commission held that MSHA had jurisdiction over a pit where “excavation occurred . . . around three times per week” over a period of “around eight months” and “with a goal of producing 20,000 cubic meters of stone.” 

I certainly understand Jones Brothers’ position in this case. I would’ve expected MSHA to assert jurisdiction over the pit. MSHA is loath to cede jurisdiction over any site. 

MSHA probably wishes it hadn’t ceded jurisdiction over borrow pits to OSHA back in 1979. As for the Sixth Circuit’s decision, it’s not surprising. On the facts, this was a relatively close case. In a jurisdictional dispute, close cases are usually (though not always) resolved in favor of the government. 

Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at
[email protected].

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