January 1, 2012
An administrative law judge applies common sense to a decision related to truck scales and berms.
The last several years have witnessed a new aggressiveness in the Mine Safety and Health Administration’s (MSHA) campaign to apply the berm standard found at 30 C.F.R. § 56.9300 to truck scales at aggregate operations. However, in May 2012, MSHA suffered a significant setback when Administrative Law Judge (ALJ) Thomas P. McCarthy ruled that 30 C.F.R § 56.9300 did not apply to the truck scale located at Knife River Corp.’s MBI Portable Crusher No. 1. Knife River Corp., Northwest, 34 FMSHRC (McCarthy, May 10, 2012) (Knife River).
On Aug. 10, 2010, MSHA issued Program Policy Letter No. P10-IV-1 (PPL), which attempted to clarify that elevated truck scales at metal and non-metal mines required guardrails and purported to provide guidance on design parameters for such guardrails. The PPL required that elevated truck scales be equipped with either berms or guardrails up to mid-axle height of the largest vehicle driving over the scale. Previously, the administrative law judges of the Federal Mine Safety and Health Review Commission (the Commission) had generally deferred to MSHA’s position that truck scales are a part of a mine’s road system under 30 C.F.R. § 56.9300, see Walker Stone Co. Inc., 16 FMSHRC 1955, 1964 (September 2004); Highway 195 Crushed Stone, 21 FMSHRC 800, 803-804 (July 1999); APAC-Mississippi, Inc., 26 FMSHRC 811, 812-815 (October 2004).
On Dec. 20, 2010, MSHA issued Knife River a citation charging a violation of 30 C.F.R. § 56.9300(b) because the truck scale’s guardrail was not at least mid-axle height of the largest piece of equipment that travels over it.
“If the Secretary intended the standard to include truck scales, she would have, could have, and should have said so.”
In late 2011, the Commission issued its decision in Lakeview Rock Products, Inc., 33 FMSHRC 2985 (Dec. 2011), which set forth a framework for determining how 30 C.F.R. § 56.9300 applies to truck scales at aggregate operations. The Commission held that a violation of that standard required proof of three separate elements: 1) whether the scale is a part of a roadway; 2) whether the scale had a drop-off of sufficient grade or depth to cause a vehicle to overturn; and, 3) whether the scale is equipped with berms or guardrails that are at least mid-axle height of the largest vehicle crossing the scale.
In applying the Lakeview analysis to the facts presented about the truck scale in the Knife River case, Judge McCarthy determined that evidence relating to the design, location, and use of the truck scale established that the truck scale was not a part of the mine’s roadways. In so determining, Judge McCarthy considered an affidavit from a manufacturer of truck scales demonstrating that the scale was: 1) designed as a scientific measuring device for weighing vehicles; 2) had approach requirements designed to regulate the speed of vehicles accessing the scale; and 3) was installed in a specific location so that ALL traffic in the mine does not access the scale.
MSHA argued that the plain language of the standard would support its application to any area where vehicles must travel. However, Judge McCarthy noted that MSHA had failed to prove that a vehicle must travel over the truck scales to get from one area to another. The evidence established that the truck scale at Knife River’s operation was removed from the main haulage road and that the road system at the mine permitted vehicles to bypass the scale if the driver chooses not to be weighed.
Judge McCarthy also rejected MSHA’s assertion that the truck scale was a road simply because of the fact that vehicles regularly pass over it, noting that drivers do not use the scale as one would a bridge or a ramp. Instead, McCarthy found, as a fact, that the truck scale was used as “a piece of equipment for the sole purpose of weighing vehicles, which move slowly across the scale with intermittent stops before proceeding back on course.”
Judge McCarthy also found that, as a matter of law, the truck scale was not a roadway and not covered by the plain language of 30 C.F.R. § 56.9300 holding that “[i]f the Secretary intended the standard to include truck scales, she would have, could have, and should have said so.” Judge McCarthy ruled that the plain meaning of the term roadway “encompasses land developed for vehicular traffic for the purpose of traveling from one place to another.” Unlike bridges, ramps, and benches that are continuations of a road and are integral to allowing a vehicle to traverse varied terrain, Judge McCarthy found that a truck scale does not meet the requirement because it is not integral to the structure or purpose of the road.
It would be premature for mine operators to assume that Judge McCarthy’s Knife River decision is the last word on this subject. As previously mentioned, several other judges have applied the standard in question to truck scales, and it is very likely that MSHA will seek review of this decision. Nevertheless, Judge McCarthy’s decision does constitute an outline of a possible factual defense to similar citations in the future. Mine operators might be well served by examining traffic flow to minimize vehicular traffic over truck scales and to provide another means of access for the numerous other vehicles which access their mine. Similarly, mine operators might also want to document their truck scale’s origin as a scientific instrument designed and certified for the specific process of weighing of vehicles.
We can all find solace in the fact that an administrative law judge of the Commission rebuffed MSHA’s illogical interpretation of 30 C.F.R. § 56.9300 and applied common sense in the resolution of this case. It is unfortunate that MSHA is not capable of similar critical thinking.
Page H. Jackson is counsel at Jackson Kelly PLLC. He joined the practice after serving with the Mine Safety and Health Administration and has more than 30 years of litigation experience in safety and health issues. He can be reached at 202-973-0200 or email@example.com.