Administrative Law Judge Thomas McCarthy gave a win for the industry in a decision vacating a citation issued to Knife River’s MBI Portable Crusher No. 1. In December 2010, an MSHA inspector issued a 104(a) non-S&S citation alleging that Knife River’s scale did not have rails that reached mid-axle height of the largest piece of equipment that traveled over the scale.
Knife River’s scale was approximately 80 feet long and 11 feet wide. At the time of the inspection it had 10 inch high rub rails and was 41 inches off of the ground. Knife River abated the citation by installing concrete barriers to preclude access. The inspector, however, returned 24 days later and issued a 104(b) failure to abate order to Knife River because Knife River failed to make any effort to fix the alleged condition. MSHA proposed an assessment of $112.00 for the 104(a) non-S&S citation.
MSHA’s berm standard, found at 30 C.F.R. Section 56.9300, provides, in relevant part, the following:
SAFETY DEVICES, PROVISIONS, AND PROCEDURES FOR ROADWAYS, RAILROADS, AND LOADING AND DUMPING SITES
(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.
(b) Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.
As predicted, MSHA argued that the scale was a hazard because of the risk of a piece of equipment falling off and tipping over. Knife River noted that more than 67,000 truckloads passed over the scale without incident in the five years that the scale had been in operation. Judge McCarthy also found that there were no reported accidents where a piece of equipment ran off the edge of any elevated scale. Since 2005, when Knife River installed the scale, MSHA inspected the mine property ten times and no citations were issued on the scale.
Judge McCarthy credited Knife River’s testimony that equipment that passes over the scale only travel at slow speeds (under 5 mph), that traffic lights control equipment movement, and that each piece of equipment that passes over the scale must stop at the end of the scale to obtain a weigh ticket.
Judge McCarthy’s decision departs from previous rulings by Administrative Law Judges that have held that truck scales are to be considered “roadways” and thus subject to 30 C.F.R. Section 56.9300(b). In departing from six previous administrative law judge decisions, Judge McCarthy determined that, in this particular case, Knife River’s scale was on an access road off of the main haulage way. Importantly, Judge McCarthy noted that Knife River’s scale was set apart from the access road, allowing other vehicles to bypass it. This evidence, along with Judge McCarthy’s review of the dictionary definition of a “road,” led to his decision that a scale “does not fall within the plain meaning because it is not integral to the structure or purpose of the road.” Specifically, “[t]he plain meaning of the word ‘roadway’ encompasses land developed for vehicular traffic for the purpose of traveling from one place to another.” Essentially, Judge McCarthy found that the equipment does not have to travel on the scale to get from one location to another – the scale, thus, was not part of the roadway.
Importantly, Judge McCarthy undertook a review of the legislative history of MSHA’s berm standard and concluded that scales were never meant to be included in the regulation. According to Judge McCarthy, if MSHA wanted to include scales in the berm standard it “should have said so.” Based on his findings that the scale was not a roadway, Judge McCarthy vacated the 104(a) non-S&S citation and the 104(b) failure to abate order.
Obviously, Judge McCarthy’s decision is a great result for the industry – however, given the now apparent split amongst the administrative law judges, MSHA may appeal this decision to the Mine Safety and Health Review Commission.