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 pjackson@jacksonkelly.com.