By Ellen Smith
Portable elevated truck scales at a portable crusher do not fall within the berm or guardrail requirements of §56.9300, Review Commission ALJ Thomas P. McCarthy has ruled.
In vacating a citation and order issued to Knife River’s MBI Portable Crusher No. 1 in Lin County, Ore., McCarthy said, “The Secretary’s assertion that the truck scale is a roadway runs counter to the ordinary meaning of the word ‘roadway’ and makes little sense in the context of § 56.9300.”
The case began in December 2010, when inspectors cited the truck scale, next to the portable crusher, in the pit. The scale is 80-ft. long, 11-ft. wide, and is elevated to allow for maintenance. At its highest, the scale is 41 in. off the ground. It also has two 10-in. high rub-rails along the side of the ramps. Truck drivers exit the main roadway and use a side access road to drive to the scale.
Drivers must slow to about two miles per hour to enter the scale. The company said about 67,000 truck loads have gone through the scale, without any truck ever driving over the edge, or overturning. Between 2005 and August 2010, MSHA inspected the Paetsch Pit 10 times and never issued a citation. But MSHA issued PPL No. P10-IV-1 in August 2010, which stated that elevated truck scales at metal and non-metal mines required guardrails.
MSHA cited the operator for not having berms or guardrails at least mid-axle height of the largest vehicle that traveled on the roadway. Mid-axle of the trucks was approximately 18 to 20 in. The citation came with moderate negligence.
The Federal Mine Safety and Health Review Commission has not decided whether a truck scale is a roadway under §56.9300. In a previous decision, Lakeview Rock Products, Inc., 18 MSHN 639; 33 FMSHRC 2985, the majority set up three elements that must be addressed:
- Whether a scale is part of a roadway.
- Whether the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn.
- Whether the scale is equipped with berms or guardrails that are at last mid-axle of the largest vehicle that uses the scale.
ALJ McCarthy said the scale is clearly not part of the roadway, but located on a single lane access road, and vehicles are able to bypass the scale if the driver chooses not to have his vehicle weighed. Drivers do not use the scale as one typically uses a road, bridge, bench or ramp, ALJ McCarthy explained. The scale is used as a piece of equipment for the sole purpose of weighing vehicles, and it is not integral to the structure or purpose of the road.
The judge said that the Secretary’s interpretation of §56.9300 was not reasonable. The text of the regulation, the regulatory history, and general safety purposes of the regulation establish that the elevated roadway standard does not contemplate truck scales. The language and regulatory history clearly were intended to cover haulage roads and travel ways, not equipment. “If the Secretary intended the standard to include truck scales, she would have, could have, and should have said so. … The Secretary’s interpretation of section §56.9300 is unreasonable, runs counter to the clear intent of the regulatory language and its history, and is unworthy of deference.”
KNIFE RIVER CORP., 5/10/12, Docket No. WEST 2011-486-RM & 512-RM and WEST 2011-666.
MSHA Can Audit Employee Records
At press time, by a four-to-one vote, the Review Commission upheld the right of MSHA to inspect and copy employee medical records held by mining companies. The decision involved consolidated appeals of several mining companies where MSHA sought “medical records, doctors slips, worker compensation filings, sick leave requests and reports, emergency medical claims forms related to accidents, injuries or illnesses that occurred at the mine or may have resulted from work at the mine” for purposes of an MSHA audit. MSHA maintained the information was necessary to accurately audit the mine company’s accident reports.
The Commissioners agreed that the Mine Act, which says that mine operators “shall establish and maintain such records, make such reports and provide such information as the Secretary…. May reasonably require from time to time…” provides adequate authority for the audit program. The information requested, FMSHRC opined, is “relevant and necessary to the Secretary’s function of verifying operator compliance with Part 50 reporting requirements.” These conclusions are supported by the legislative history and preamble to the Mine Act. More on this next month.