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.”

Judge McCarthy

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.