Jones Brothers, Inc. v. Secretary of Labor and Secretary of Labor v. Jones Brothers, Inc. (ALJ decision, March 6, 2017)

Plain-English summary

Jones Brothers challenged MSHA's jurisdiction over its highway-project operation, arguing that the site was a borrow pit rather than a mine. Judge Margaret A. Miller had rejected that argument in an earlier order. The parties then agreed that Jones Brothers would not otherwise contest the nine citations and orders or their proposed penalties, allowing the company to appeal the jurisdiction issue. The judge affirmed every citation and order, assessed the proposed $2,940 total penalty, and dismissed the contest cases after payment. The Commission later vacated the judge's decisions and remanded the consolidated cases for assignment to a different judge.

Decision snapshot

• Cited authority: Mine Act §§ 104(a), 104(g)(1), 105(d), and 110(i)
• Outcome: Nine citations and orders were affirmed, a $2,940 penalty was assessed, and the contest cases were ordered dismissed after payment.
• Subsequent review: The Commission later vacated the judge's decisions and remanded for assignment to a different judge in se-2016-218-commission.
• Key point: The final order preserved Jones Brothers' MSHA-jurisdiction challenge for Commission review after the company declined to contest the citations on other grounds.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

March 6, 2017

JONES
BROS., INC.,

Contestant,

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION,
(MSHA),

Respondent.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

JONES
BROTHERS INC.,

Respondent.

CONTEST
PROCEEDINGS

Docket
No. SE 2016-218

Citation
No. 8817595; 04/06/2016

Docket
No. SE 2016-219

Citation
No. 8817596; 04/06/2016

Mine:
S.R. 141 Project, DeKalb Co.

Mine
ID: 40-03454

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2016-246

A.C.
No. 40-03454-410595

Mine:
Jones Brothers Mine

DECISION AND
ORDER

Before:                        Judge
Miller

This
case is before me upon notices of contest and a petition for assessment of a civil penalty under Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). These dockets involve nine citations and orders issued pursuant to Sections 104(a) and 104(g)(1) of the Act with originally proposed penalties totaling $2,940.00. On January 23, 2017, Jones Brothers Inc. filed a motion contesting the jurisdiction of the Mine Safety and Health Administration over its operation. Jones asserts that its operation was a “borrow pit” and therefore not subject to inspection by MSHA. I denied that motion in an order on February 2, 2017, and found that MSHA did have jurisdiction to issue the citations. That order is incorporated here.

In a joint motion to the court on
February 22, 2017, the parties indicated that Jones Brothers Inc. wishes to appeal the order on the issue of jurisdiction to the Commission, but does not wish to otherwise contest the citations and orders or the proposed penalties in these dockets. The parties agree that apart from the jurisdiction issue, there are no remaining issues of fact.

I accept the representations of the
Secretary as set forth in the penalty petition. I have considered the representations and documentation submitted in this case and conclude that the proposed penalties are appropriate under the criteria set forth in Section 110(i) of the Act. The parties’ Joint Motion for Final Decision and Order is GRANTED and the citations are affirmed as issued. Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $2,940.00 within 30 days of the date of this decision. Upon receipt of payment, the contest cases are DISMISSED .

/s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:
(U.S. First Class Certified Mail)

Willow
Eden Fort, Office of the Solicitor, U.S. Department of Labor, 618 Church St, Suite 230, Nashville, TN 37219

Noelle
Holladay True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513