Secretary of Labor v. David Duquette Excavating and Jessica Russell

Plain-English summary

David Duquette Excavating intermittently removed bank-run earthen material, used a scalping screen to remove debris, and transported the material for fill at its excavation projects. MSHA treated the site as a mine and issued nine equipment, berm, and notification citations with $908 in proposed penalties. Judge Jerold Feldman held that the operation fit the Department of Labor's borrow-pit exception because extraction occurred only as needed, the material was used for bulk fill in essentially its original form, and scalping did not add intrinsic value. He rejected interstate commerce alone as a basis for Mine Act jurisdiction and found that the Secretary had not shown the excavation sites were too distant to meet the exception. Duquette's summary-decision motion was granted and the penalty case was dismissed for lack of Mine Act jurisdiction.

Decision snapshot

• Governing provision: 30 U.S.C. § 802(h)(1)(C)
• Outcome: Summary decision was granted to Duquette, and the nine-citation docket was dismissed for lack of Mine Act jurisdiction.
• Key point: Intermittent extraction of ordinary earthen material for the operator's nearby fill work remains a borrow pit when scalping only removes debris and does not create a market-specific mineral product.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

April 8, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

DAVID DUQUETTE EXCAVATING

and JESSICA RUSSELL,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. YORK 2012-303-M

A.C. No. 19-01232-296289

Mine: Extec 6000S S/N 5045

DECISION
GRANTING RESPONDENT’S MOTION

FOR SUMMARY
DECISION

Before:                        Judge
Feldman

This
matter presents the issue of whether the extracting and scalping of earthen
material by David Duquette Excavating (“Duquette”) for use as land fill in its
excavation business is subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977, as amended, U.S.C. § 801 et seq. (“Mine Act”). On
October 25, 2012, the Secretary of Labor (“Secretary”) filed a Petition for
Assessment of Civil Penalty. On November 20, 2012, Duquette, appearing pro
se, filed an Answer to the Petition, asserting lack of jurisdiction by the
Mine Safety and Health Administration (“MSHA”).[1]
Duquette maintains that its earthen material extraction site is exempt from
MSHA jurisdiction because it is a “borrow pit.” On October 6, 2014, the
Secretary moved for summary decision of the jurisdictional issue. As discussed
below,

I
construe Duquette’s continuing objections to jurisdiction in this matter as a
cross-motion for summary decision on the issue of jurisdiction.

I.                  
Background

As specified below, the parties have
stipulated to the material facts in this case.       In May 2012, MSHA Inspector
Zane Burke was traveling near Hinsdale, Massachusetts, when he observed screening
equipment at Duquette’s extraction site. (Stip. 1). Having not previously
encountered or inspected Duquette’s operation, Burke stopped at the site and
observed a truck driver loading earthen material from the site into a dump
truck bearing the name “Duquette Excavating”. (Stip. 2). The material was
loaded into the dump truck in preparation for

transportation
to a Duquette residential excavation construction site where it was to be used
as land fill. (Stip. 23, 25-27).

Burke was uncertain whether Duquette’s
extraction activities were subject to Mine Act jurisdiction and sought the
opinion of his supervisor, who advised him that there was “MSHA jurisdiction
because the material was going into interstate commerce.” (Stip. 11-12).  Thereafter,
Burke conducted an inspection of the extraction site and issued nine citations,
six of which were designated as non-significant and substantial (non-S&S)
in nature. The violations concerned maintenance of the dump truck and of a front-end
loader, as well as berm conditions and Duquette’s failure to notify MSHA of
commencement of its operations. Burke required David Duquette to complete a
mine operation identification form. (Stip. 14). MSHA ultimately designated
Duquette’s extraction site as Mine ID No. 19-01232. The Secretary proposes a
$908.00 civil penalty for the nine citations.

II.               
Stipulations

The Secretary relies upon the following
stipulated facts in support of his motion for summary decision on jurisdiction:

1.      In May 2012,
Zane Burke, a safety inspector employed by MSHA’s Field Office in Albany, New
York, was traveling in Western Massachusetts when he saw two screens in a pit
he had not previously encountered.

2.      Mr. Burke drove
into the pit area and observed that Milton Blakely, a truck driver, was loading
a Mack dump truck bearing the name “Duquette Excavating” and a telephone number
“413-623-5517”.

3.      Mr. Burke
learned from Mr. Blakely that the owner was not present.

4.      While he was on
the pit site, Mr. Burke observed Mr. Blakely stock piling material at the Extec
screen plant.

5.      Mr. Burke drove
to a garage on the site which had a telephone number for Mr. Duquette and
called him. He identified himself as being from MSHA and said that he wanted to
speak to Mr. Duquette about his pit.

6.      Mr. Duquette
arrived and Mr. Burke explained that MSHA had jurisdiction over his single deck
screen.

7.      For some period
of time previously, MSHA did not inspect single screens, but in May of 2012 the
policy in effect was to inspect single as well as double decked screens.

8.      Mr. Duquette
replied that he had purchased the screen two years previously and that an MSHA
inspector had told him (Duquette) that he (Duquette) was not under MSHA
jurisdiction.

9.      Mr. Burke told
Mr. Duquette that there was a provision that if you did not run 200 hours, then
you would be taken off the list. Mr. Duquette told Mr. Burke that the pit was
in service less than 200 hours.

10.  Mr. Burke was
told that after scalping was done, that the material that was dug was used in
Mr. Duquette’s excavation business as fill.

11.  Mr. Burke then
called a supervisor at the Metal/Non-Metal District Office, Dennis Yesko, to
discuss MSHA’s jurisdiction.

12.  Mr. Yesko
informed Mr. Burke that the plant and the pit were under MSHA jurisdiction
because the material was going into interstate commerce.

13.  Mr. Burke
relayed what Mr. Yesko had told him (Burke) to Mr. Duquette.

14.  Mr. Burke then
presented a mine identification card to Mr. Duquette and asked him to fill it
out.

15.  Mr. Duquette
stated that he did not have time to fill it out but would call Mr. Burke in the
morning.

16.  At a telephonic
conference with Judge Feldman, Mr. Duquette was asked whether any of the
material he excavated from his pit was moved off site as part of the excavation
business Mr. Duquette engaged in.

17.  Mr. Duquette
stated that material excavated from his pit is used to provide fill when
foundations are dug off site as part of his excavation business.

18.  Mr. Duquette has
claimed that prior to Mr. Burke’s inspection of his pit in May of 2012, that an
MSHA inspector, John Moon, told Mr. Duquette that MSHA did not have
jurisdiction over his pit because only one product was in use at the pit, and
after scalping the material off the boulders, little scalped material was
staying on site.

[The parties omitted a stipulation
number 19.]

20.  Mr. Duquette has
also claimed that there is no MSHA jurisdiction over his pit because his pit is
a “borrow pit.”

21.  In 2012, Mr.
Duquette had a total of himself, plus one employee working for his excavation
company.

22.  Mr. Duquette
took material off-site three (3) times.

23.  Mr. Duquette
took bank-run raw material[] and loaded [it] on a dump truck.

24.  The material was
generally clean fill.

25.  The material was
then transported off site in Mr. Duquette’s dump truck.

26.  The purpose was
to fill in a back yard to level it out.

27.  It was
beneficial to the home owner because the yard was made more usable.

28.  Material
(transporting) in 2011 and 2012 was done very infrequently as the economy
around Berkshire County was not very good. It occurred approximately three (3)
times in 2011 and 2012.

Parties’ Agreed Statement of Facts (Oct.
6, 2014).

III.            
Procedural
History

The Secretary has moved for summary
decision on the jurisdictional question. As noted, Duquette is appearing pro
se. The Commission has long-facilitated the participation of parties
appearing pro se in Commission proceedings. See, e.g.,
Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (explaining special
considerations for pro se litigants); see also      29 C.F.R. §§
2700.3(b), 2700.4 (permitting participation in Commission proceedings without
counsel).

In Kanaval’s Excavating & Gravel,
36 FMSHRC 2795, 2797 (Oct. 2014) (ALJ),   Judge Paez construed a pro se
respondent’s silence as a failure to participate in a summary decision motion where
the pro se respondent had wholly failed to participate in the
proceedings despite the judge’s repeated efforts to elicit a response from the
respondent. Unlike in Kanaval, Duquette’s jurisdictional objection has
been consistent and its position has been acknowledged in the Secretary’s filings.
As such, I construe Duquette’s previous objections to the citations at issue
based on a lack of MSHA jurisdiction over the subject activities as a
cross-motion for summary decision.

IV.            
MSHA/OSHA
Interagency Agreement

Section 3(h)(1) of the Mine Act defines
a “mine” as “excavations . . . resulting from, the work of extracting . . .
minerals from their natural deposits . . . [and/or] the milling of such
materials.” 30 U.S.C. § 802(h)(1)(C). As a general proposition, it has been
held that the screening of earthen material to enhance its value, by satisfying
market specifications, gives rise to Mine Act jurisdiction. See, e.g.,
Drillex Inc., 16 FMSHRC 2391, 2395-97 (Dec. 1994) (holding that the
drilling, blasting, rock excavation, and crushing of stone to be used as fill
for embankment and road base purposes in furtherance of road construction
constitutes “mineral extraction and milling,” giving rise to Mine Act
jurisdiction). However, as discussed below, the Secretary has recognized an
exception to such jurisdiction when the extraction of earthen material
constitutes a “borrow pit.”

A “borrow pit” generally is defined as:

(a)   
The source of material taken from
some location near an embankment where there is insufficient excavated material
nearby on the job to form the embankment. Borrow-pit
excavation is therefore a special classification, usually bid upon as a special
item in contracts. It frequently involves the cost of land or a royalty for
material taken from the land where the borrow pit is located; it also often
requires the construction of a suitable road to the pit. This type of excavation
therefore usually runs higher in cost than ordinary excavation.

(b)  
An excavated area where borrow has
been obtained.

Dictionary of
Mining, Mineral and Related Terms 62
(2nd ed. 1997).

In
1979, MSHA and the Occupational Safety and Health Administration (“OSHA”),
divisions of the Department of Labor, entered into an interagency agreement to
provide guidance to affected employers on the principles and procedures for
distinguishing between Mine Act jurisdiction and Occupational Safety and Health
Act jurisdiction over “borrow pits.” Paragraph B.7 of the 1979 Interagency
Agreement delineated the parameters for a “borrow pit.” The Interagency
Agreement provides:

“Borrow
Pits” are subject to OSHA jurisdiction
except those borrow pits located on mine property or related to mining. (For
example, a borrow pit used to build a road or construct a surface facility on
mine property is subject to MSHA jurisdiction). “Borrow Pit” means an area of
land where the overburden, consisting of unconsolidated rock, glacial debris,
other earthen 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 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.

44 Fed. Reg. at 22828 (“Interagency
Agreement”) (emphasis added).

MSHA
adopted interpretive guidelines in 1996 to clarify the 1979 Interagency
Agreement with respect to borrow pits. The interpretive guidelines provide, in
pertinent part:

. .
. [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.

MSHA Program Policy
Manual, Section 4, I.4-3 (1996) (“Interpretive Guidelines”) (emphasis
added).

V.               
Analysis

a.      
Elam Test

As a threshold matter, I recognize that
the statutory definition of a mine should be broadly construed. See, e.g., Marshall
v. Stoudt’s Ferry Prep. Co., 602 F.2d 589, 592 (3rd Cir. 1979); Cyprus
Indus. Minerals Corp., 3 FMSHRC 1, 2-3 (Jan. 1981), aff’d 664 F.2d
1116 (9th Cir. 1981), citing S. Rep. No. 181, 95th Cong., 1st Sess. 15
(1977). However, it is also true that questions of Mine Act jurisdiction should
be resolved on the basis of: (1) whether the subject activities are normally
performed by a mine operator; and (2) whether the activities performed are
undertaken to make the extracted material suitable for a particular use or to
meet market specifications. Oliver M. Elam, 4 FMSHRC 5, 8 (Jan. 1982). Obviously,
the extraction of bulk fill dirt necessary for commercial or residential
construction is not a process that is normally viewed as mining. Moreover, the
bulk material extracted by Duquette lacks intrinsic value because is not
uniquely suitable for a particular purpose that can satisfy market
specifications. Consequently, as a general matter, Duquette’s activities do not
satisfy the Commission’s Elam criteria for Mine Act jurisdiction.

Notwithstanding Elam, the
Secretary’s stipulation that interstate commerce may be a relevant
consideration in resolving the jurisdictional issue despite the plain meanings
of the 1979 Interagency Agreement and MSHA’s 1996 Interpretive Guidelines begs
the question. (See Stip. 12). The Commerce Clause provides the authority
for Congress’ promulgation of the Mine Act. The Commerce Clause, alone, cannot
confer Mine Act jurisdiction. Whether the activities sought to be regulated by
the Mine Safety and Health Administration can be reasonably construed to
constitute mining is not an inconsequential matter.

b.      Kerr Case

I have previously addressed the circumstances
under which the extraction and screening of earthen material provide a basis
for Mine Act jurisdiction in Kerr Enterprises, Inc.,        26 FMSHRC
953 (Dec. 2004) (ALJ). In Kerr, the material extracted by the operator
consisted of clay, sand, topsoil, and a sand/clay mix, which occurred naturally
in the soil. Id. at 955. Extraction occurred by means of backhoes or
front-end loaders. Id. The only “processing” that was performed at the
facility was through the use of a power grid or scalping screen on about  twenty
percent of the materials in order to remove roots and other wood debris. Id.
No sizing of materials was otherwise performed. Id. The material
extracted from the site was sold to more than fifty unaffiliated
customers. Id. The customers included landscape companies, refinery
contractors, construction contractors, and concrete companies. Kerr, 26
FMSHRC at 955.

In Kerr, the operator’s attempt
to elude Mine Act jurisdiction by asserting that its excavation activities
constituted a borrow pit was rejected. Rather, the full-time continuous
extraction and commercial sale to numerous customers to fulfill their specific
needs, based on the material’s extrinsic value, such as topsoil for landscapers,
and sand and clay for concrete companies and refinery contractors, was held to
be “a far cry from the one time, or intermittent, local fill dirt activity
contemplated for OSHA jurisdiction [of a borrow pit] in the Interagency
Agreement.”[2]
Id. at 957.

c.       Duquette Jurisdictional
Question

Turning to the circumstances in this
case, unlike Kerr, Duquette’s operation essentially falls squarely
within the parameters for a borrow pit set forth in the Secretary’s Interagency
Agreement and Interpretive Guidelines. Namely:

(1)   Duquette’s
extraction of earthen material “occur[red] only intermittently as need occur[red].”
See
Interagency
Agreement.

The parties have
stipulated that Duquette transported its screened bulk material off-site sporadically
(approximately three times in two years). (Stip. 22, 28). This is clearly
distinguishable from the “full-time continuous” material extraction and
transportation held to be mining in Kerr and comports with the
Interagency Agreement’s requirement that material be extracted “only
intermittently as need occurs.”

(2)   The material
extracted by Duquette was “fill material” used “in the form in which it [was]
extracted” and “used [by Duquette] more for its bulk than its intrinsic
qualities.”
See Interagency Agreement.

The Secretary does not allege, nor
does the record reflect, that there was any increase in the intrinsic value of
the subject earthen material as a result of Duquette’s scalping. Rather, the
parties stipulate:

23.  Mr. Duquette
took bank-run raw material[] and loaded [it] on a dump truck.

24.  The material was
generally clean fill.

(Stip. 23, 24).

(3)   “No milling
[was] involved [in Duquette’s extraction operation] except for use of a
scalping screen to remove large rocks, wood and trash.” See Interagency
Agreement.

The parties have stipulated that
the material extracted by Duquette was generally    clean fill. (Stip. 24). Scalping
was performed as necessary to remove debris to make the material suitable for
bulk fill usage. (Stip. 10, 24). In other words, Duquette’s scalping activities
alone do not provide justification for Mine Act jurisdiction.

(4)   Duquette used
“bank run material to fill . . . low places in the yard.” See Interpretive
Guidelines.

In this regard, the parties have
stipulated that:

23.  Mr. Duquette
took bank-run raw material[] and loaded [it] on a dump truck.

26.  The purpose was
to fill in a back yard to level it out.

27.  It was
beneficial to the home owner because the yard was made more usable.

(Stip. 23, 26, 27).

(5)   The location of
the scalping is not determinative because “whether [or not] the scalping is
located where the material is dug . . . does not change the character of the
operation, as long as it meets the other [borrow pit] criteria.” See Interpretive
Guidelines.

The parties have stipulated that the
extracted earthen material was transported off-site by dump truck for use as
fill when foundations were dug and for grading yards, in furtherance of Duquette’s
excavation business. (Stip. 17, 25, 26). Thus, the fact that the scalping occurred
at the extraction site, rather than where the fill was ultimately used, does
not preclude consideration of Duquette’s extraction site as a borrow pit.

Finally, the thrust of the Secretary’s
argument is that Duquette’s extraction site does not constitute a borrow pit
because it is unclear whether the extracted material was being used “on land
which is relatively near the borrow pit,” as required by the Interagency
Agreement. Sec’y Mem. in Supp. of Mot. for Summ. Dec., at 4-5 (Oct. 6, 2014). Since
it is clear that borrow pit scalping can occur at the extraction site or
off-site, the transportation of the bulk material, in and of itself, does not
negate a borrow pit characterization. Obviously, “relatively near” connotes an
unspecified range of distance. The Secretary bears the burden of establishing
Mine Act jurisdiction. The Secretary has not provided any evidence that
Duquette’s excavation project sites were so far removed from its extraction
site that they undermine Duquette’s assertion that its extraction site should
be classified as a borrow pit. Rather, 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.

VI.            
Conclusions
of Law

Commission Rule 67(b) provides that a
motion for summary decision shall be granted only if there is no genuine issue
as to any material fact, and the moving party is entitled to summary decision
as a matter of law. 29 C.F.R. § 2700.67(b); see also Hanson Aggregates New
York, Inc., 29 FMSHRC 4, 8-9 (Jan. 2007) (citations omitted). Moreover, in
determining if a motion for summary decision should be granted, the court must
construe the undisputed material facts in the light most favorable to the
opposing party. Hanson, 29 FMSRHC at 9.

I
have construed the evidence in the light most favorable to the Secretary with
respect to the stipulations proffered by the Secretary and agreed to by
Duquette. In evaluating Duquette’s cross-motion for summary decision on the
jurisdictional question, it is clear that Duquette’s extraction facility satisfies
the borrow pit criteria contained in the Secretary’s Interagency Agreement and
Interpretive Guidelines. As such, Duquette’s extraction facility is not subject
to Mine Act jurisdiction.

ORDER

In view of the above, IT IS ORDERED that
David Duquette Excavating’s cross-motion for summary decision IS GRANTED.
Accordingly, IT IS FURTHER ORDERED that  Docket No. YORK 2012-303-M IS
DISMISSED for lack of Mine Act jurisdiction.

/s/ Jerold
Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:
(Regular and Certified Mail)

James
L. Polianites, Esq., U.S. Department of Labor, Office of the Regional
Solicitor, John F. Kennedy Federal Building, Room E-375, Boston, MA 02203

Jessica
Russell, David Duquette Excavating, 190 Michaels Road, Hinsdale, MA 02135

/acp

[1] The civil penalty matter in Docket No. YORK 2014-4-M
concerning David Duquette Excavating involves the identical jurisdictional
issue. YORK 2014-4-M has been stayed pending resolution of the present case.

[2] For example, as distinguished from fill dirt, the
Commission has held that the Alaska Department of Transportation’s extraction
and screening of sand and gravel from roadside pits constitutes “open pit
mining” of “[s]and and [g]ravel” that is subject to Mine Act jurisdiction. State
of Alaska, Dept. of Transp., 36 FMSHRC 2642 (Oct. 2014) (remand decision). Similarly,
a Commission ALJ has held that the extraction and transportation of sand for
stockpiling at an airport for use winterizing runway surfaces contemplated the sand’s
intrinsic value, rather than its bulk, and thus cannot be exempt from Mine Act
jurisdiction as a borrow pit. State of Alaska, Dept. of Transp., 33 FMSHRC
1550, 1553 (Jun. 2011) (ALJ). Likewise, the open pit extraction of sand used
for its abrasive qualities to control ice on local road surfaces has been held
to be subject to Mine Act jurisdiction. New York State Dept. of Transp.,
2 FMSHRC 1749, 1759 (Jul. 1980) (ALJ).