The Mine Act; Whether petitioner’s worksite was under the Federal Mine Safety & Health Administration’s (the Administration or MSHA) jurisdiction; Whether there was “substantial evidence” that the worksite was a “mine” & not a “borrow pit”; 30 USC § 802(h)(1); Administrative interpretative guidelines; I, MSHA, U.S. Dept. Of Labor, Program Policy v. Manual, § 4, 1.4-3; Whether the Administrative Law Judge (ALJ) violated the court’s prior order mandating that petitioner receive “fresh proceedings”; Occupational Safety & Health Administration (OSHA)

In a decision originally issued as unpublished, the court held that there was substantial evidence that petitioner’s worksite (the Site) was a “mine” and not a “borrow pit.” Thus, it found the ALJ correctly ruled that respondent-Administration had jurisdiction over the Site and upheld the Administration’s citations against petitioner for violations at the Site. Petitioner appealed respondent-Federal Mine Safety and Health Review Commission’s decision upholding the citations. Petitioner worked on a roadway repair site where an Administration inspector determined several of the Administration’s rules had been violated and issued seven citations and two orders. Petitioner argued the Site was not a mine but was a borrow pit subject to the jurisdiction of OSHA, not the Administration. The court explained there was very little precedent on the difference between a mine and a borrow pit. In 1979, the Administration and OSHA entered into an Interagency Agreement that defined a borrow pit. That agreement and administrative interpretative guidelines provide five general requirements that must be met for a site to be deemed a borrow pit. The ALJ ruled that the Site failed to meet factors “(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’; [and] (4) the extracted material must be used more for its bulk as fill than for the material’s intrinsic qualities[.]” The court found “substantial evidence to at least support the ALJ’s conclusions regarding factors 2 and 4,” and declined to address the others as unnecessary. Petitioner argued it should have been able to rely on the fact that “‘similar borrow pits for road repairs have not been subjected to MSHA jurisdiction’ and that ‘[o]ver at least a dozen times [it] has extracted graded solid rock from a borrow pit[.]’” But the court explained that the Administration’s “informal activities” and peoples’ perceptions cannot override the Interagency Agreement’s explicit terms. “‘[T]he mere failure of administrative agencies to act is in no sense a binding administrative interpretation that the Government lacks the authority to act.’” The court also rejected petitioner’s claim that by reading the prior ALJ’s vacated decision on the matter, the ALJ violated the court’s directive in its prior opinion “that the case be given ‘fresh proceedings[.]’” It noted that it “does not ‘require an ALJ to ignore all past proceedings.’” And petitioner failed to show “a sufficient ‘continuing taint’” here. Affirmed.