Since this case involves MSHA’s interpretation of its own regulation, it is clearly outside Chevron’s domain and within Seminole Rock/Auer’s domain. What is not clear, however, is the proper scope of the Seminole Rock/Auer domain in the wake of United States v. Mead Corp., 533 U.S. 218, 227, 235-38 (2001). In Mead, the Court held that some agency statutory interpretations–particularly those contained in interpretive rules, informal orders, or other pronouncements issued without extensive procedures–were presumptively not entitled to Chevron deference. Such interpretations fall outside Chevron's domain, and receive at most a measure of judicial respect, pursuant to the Supreme Court's 1944 decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944) based on the extent of their power to persuade. Post-Mead circuit court cases have sent mixed signals regarding the effect of that decision on Seminole Rock deference. See Stephenson, supra note 9, at 1452, n.20 (2011). A strong case can be made for extending Mead’s logic to the Seminal Rock/Auer context by reserving strong Seminole Rock deference for interpretations issued in orders following formal, final agency adjudications, while granting only Skidmore deference to interpretive rules and informal orders. Stephenson, supra note 9, at 1481-96.

            Stephenson’s scholarly work also addresses how the Seminole Rock doctrine should apply in the context of a vertical split-enforcement regime, in which one agency has the authority to issue regulations and initiate enforcement actions, but another independent agency has the authority to adjudicate alleged violations of these regulations on a final administrative appeal. Id. at 1496-97. That is, when the agency with rule making or enforcement authority interprets its regulation one way, but the agency with final adjudicative authority interprets the regulation differently, which agency (if either) ought to receive Seminole Rock deference? In Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991), in a unanimous but narrow opinion written by Justice Marshall, the Court resolved this question in favor of the agency with rule making authority. The Court held that a reviewing court should defer to the Secretary when both the Secretary and Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Occupational Safety and Health Act.

            Although Martin took pains to insist that its holding was narrow and context specific, subsequent courts have generally ignored this admonition and consistently held that interpretive authority follows rule making power, rather than adjudicative power, when the two are divided. See Stephenson, supra note 9, at 182, citing, e.g., Speed Mining, Inc. v. Fed. Mine Safety & Health Review Comm'n, 528 F.3d 310, 319 (4th Cir. 2008) (citing Martin in the context of the split-enforcement scheme under the Federal Mine Safety and Health Act); Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor v. Gen. Dynamics Corp., 982 F.2d 790, 794-95 (2nd Cir. 1992) (applying Martin in the context of the split-enforcement scheme under the Longshore and Harbor Workers' Compensation Act). But see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994) (“The Commission . . . was established as an independent-review body to ‘develop a uniform and comprehensive interpretation’ of the Mine Act”). Martin seems to be a rare example where a principle that arose originally in the Seminole Rock context has influenced how courts have approached analogous issues in the Chevron context, rather than the other way around. See Stephenson, supra note 9, at 183, citing,, e.g., Speed Mining, 528 F.3d at 319 (applying Martin in the context of statutory interpretation); Gen. Dynamics, 982 F.2d at 794-95 (applying Martin to determine which agency's statutory interpretation should prevail).

            In sum, it appears clear, although perhaps erroneously so, that in the context of a vertical split-enforcement regime, where rule making and adjudicatory functions are divided between two agencies, interpretive authority is held by the agency primarily tasked with rule making, rather than the adjudicative agency. See, e.g., Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 319 (4th Cir. 2008); Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006); D.H. Blattner & Sons, Inc. v. Sec'y of Labor, 152 F.3d 1102, 1105 (9th Cir. 1998); Walker Stone Co., Inc. v. Sec'y of Labor, 156 F.3d 1076, 1080 (10th Cir. 1998). As the Mine Act creates such a regime with MSHA and FMSHRC, the Commission has limited review of the Secretary’s regulatory interpretations for consistency with the regulatory language and for reasonableness. Cf. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 145 (1991) (stating that the Occupational Safety and Health Act of 1970 vests interpretive powers with the Secretary of Labor, not OSHRC, but emphasizing that the reviewing court should defer only if the Secretary’s regulatory interpretation is reasonable). See Energy West, 40 F.3d at 463, citing Sec’y of Labor on behalf of Bushnell v.Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir.1989 (applying Chevron, not Seminole Rock); Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary’s interpretation was reasonable).

                                    2.         The Secretary’s Regulatory Interpretation is Unreasonable, Inconsistent with the Regulatory Language, and Unworthy of Seminole Rock Deference  

            The Secretary’s interpretation of a regulation is reasonable where it is “logically consistent with the language of the regulation and . . . serves a permissible regulatory function.” Cf. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted). In determining if the Secretary’s interpretation is reasonable, the Commission may look to the Secretary’s past informal interpretations of a regulation, as consistent application of an interpretation bears on the reasonableness of the Secretary’s present interpretation. Martin, supra, 499 U.S. 144, 157 (1991); see also Thomas Jefferson, supra, 512 U.S. at 515 (1994)(stating that a regulatory interpretation that conflicts with a prior interpretation is “entitled to considerably less deference than a consistently held agency view” (internal quotation marks omitted)).        

            Applying these principles, I find the language of the regulation unambiguous. The text, regulatory history, and general safety purposes of the regulation establish that the elevated roadway standard does not contemplate truck scales. Cf. Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir. 2000) (remanding for Secretary’s authoritative interpretation of ambiguous regulation in the context of prior inconsistent interpretations so that case could then be resolved under standard deference principles). There is no ambiguity in the phrase “on banks of roadways.” This language and its 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. Even assuming, arguendo, that the regulation is ambiguous, however, I find that 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.

            Absent stipulated facts as in Lakeview, the Commission has never concluded that a truck scale is, or is part of, a roadway. Neither the statute nor the regulation defines the term roadway. In the absence of a statutory or regulatory definition of the term roadway, the Commission applies the ordinary meaning of the term roadway. See FDIC v. Meyer, 510 U.S. 471, 476 (1994), citing Smith v. United States, 508 U.S. 223, 228 (1993); Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008), citing Jim Walter Res., Inc., 28 FMSHRC 983, 987–88 (Dec. 2006). See also Island Creek Coal, 1997 WL 833381 (Jan. 1997), citing Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff’d, 111 F.3d 963 (D.C. Cir. 1997).

            The Random House College Dictionary (rev. ed.1980) defines a roadway as “the land over which a road is built; a road together with the land at its edge; the part of a road over which vehicles travel.” Webster’s Third New International Dictionary (1993) defines a roadway as “the strip of land through which a road is constructed and which is physically altered; the part of a road over which the vehicular traffic travels.” A road is defined as “an open way or public passage for vehicles . . . a track for travel or transportation to and fro . . .” Id.; see, e.g., Random House College Dictionary (rev. ed. 1980) (defining a road as a “long narrow stretch with smoothed or paved surface, made for traveling by motor vehicles . . . between two of more points”).

            The plain meaning of the word “roadway” encompasses land developed for vehicular traffic for the purpose of traveling from one place to another. Within the plain meaning, structures that further the road’s purpose may also be classified as part of a roadway. See Burgess Mining & Constr. Corp., 1 FMSHRC 2038, 2044 (Sep. 1980) (ALJ) rev’d on other grounds, 3 FMSHRC 296 (Feb. 1981). This definition would include structures such as bridges, ramps, and benches that are continuations of a road and are integral to allowing a vehicle to traverse varied terrain. Equipment, such as a truck scale, does not fall within the plain meaning because it is not integral to the structure or purpose of the road. Thus, I find that the Secretary reaches too far in attempting to expand the plain meaning of the regulatory language to include truck scales.

            Seeking to overcome the regulation's plain meaning, the Secretary asserts that the agency's enforcement position as grounded in the PPL interpreting the regulation should be given deference, presumably under Seminole Rock/Auer. But Seminole Rock/Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case is not ambiguous. The Secretary has created the ambiguity. To defer to the Secretary’s interpretation of this unambiguous regulation would be to allow MSHA to create a new regulation under the guise of interpreting section 56.9300. Because the regulation is not ambiguous on the issue of whether a truck scale is, or is part of a mine’s roadways, Seminole Rock/Auer deference is unwarranted. Cf. Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000) (noting that agency interpretations that lack the force of law (such as those embodied in opinion letters and policy statements) “do not warrant Chevron-style deference” when they interpret ambiguous statutes, but do receive deference under Auer when interpreting ambiguous regulations).

            The regulatory history lends support to the view that the Secretary’s regulation never was intended to cover truck scales. During notice and comment for 30 C.F.R. 56 and 57, some commenters asked MSHA to explain the basis for requiring berms and guardrails on elevated roadways to be at mid-axle height. MSHA explained that, “[s]tudies have shown that berms or guardrails at less than mid-axle height are not capable of limiting the force of the equipment or impeding passage over the bank of the elevated roadway.” Safety Standards for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines, 53 FR 32496-01 (proposed Aug. 25, 1988) (to be codified at 30 C.F.R. pts. 56, 57). The only study MSHA cited in the notice and comment rulemaking as the basis for this conclusion was a manual by the Department of the Interior in which the authors found that the height of a berm on a haulage road must be “equal to or greater than the rolling radius of the vehicle’s tire” to provide adequate time for a driver, operating at a moderate vehicle speed, to apply corrective measures. Walter W. Kaufman & James C. Ault, Bureau of Mines, Information Circular No. 8758, Design of Surface Mine Haulage Roads - A Manual (1977). Although the Bureau of Mine’s manual appears well-nigh exhaustive concerning the scope and comprehensiveness of its analysis of surface mine roads, truck scales were never mentioned. 

            Even assuming the regulation is ambiguous, the Secretary’s interpretation, although serving a permissible regulatory function, is not due deference because it is unreasonable under Martin and logically inconsistent with the language of the regulation. Cf. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995). Attempting to apply section 56.9300 to truck scales is a bit like trying to fit the proverbial square peg into a round hole. As the Lakeview dissent observed, “the entire context of 30 C.F.R. § 56.9300 contemplates travelways or haulage routes - in a word ‘roads.’” 33 FMSHRC at 2991. Truck scales do not have banks like roads do. Operators cannot erect earthen berms along the sides of truck scales without preventing access to the scale’s inner workings. Thus, guardrails are the only option. If the purpose of a roadway is to provide access from one point to another, truck scales are astonishingly ineffective in this capacity. Not only is travel inhibited by the low speeds that drivers are required to observe, but multiple stops and the delicate nature of the machinery make a truck scale unfit for use as a roadway.

            The unreasonableness of the Secretary’s post-regulatory attempt to shoehorn truck scales into the language of section 56.9300 is further underscored by record evidence suggesting that mid-axle guardrails appears excessive and unnecessary to achieve the general safety purposes of the regulation. While appropriate for haulage roads, the record in this case indicates that far less than mid-axle guardrails are needed to prevent a truck traveling at a few miles an hour from over traveling the edge of a truck scale. Indeed, as pointed out, the regulatory height requirement was conceived with the understanding that berms or guardrails of mid-axle height were the minimum needed to help prevent a vehicle traveling on a haulage road at a moderate speed from overtraveling the roadway’s edge. Even the study the Secretary’s expert relies on in his analysis makes similar assumptions when contemplating the design and implementation of haulage road berms and guardrails. (See Tr. 189-92, discussing, G. L. Strecklein & J. Labra, Bureau of Mines, Haulroad Berm & Guardrail Design Study and Demonstration 36-38 (1981) reprinted in Sec’y Ex. 4 at 18-20. See also K.R. Br. at n. 5 (supporting the Court’s independent verification that the study does not address truck scales).) If truck scales were reasonably included in the plain meaning of a roadway, it is difficult to fathom why they appear to have been ignored completely in the studies on which the standard was based.             

            In sum, 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 section 56.9300. The Secretary’s creation of an ambiguity where none exists is unreasonable, unnecessary, and overreaching. If the Secretary continues to believe that truck scales need mid-axle guardrails, she should draft a regulation to that effect after notice and comment from interested parties. To date, she has not done so.

            In light of the foregoing, I find that the section 56.9300 standard is not ambiguous and that the Secretary’s interpretation is unreasonable and logically inconsistent with the regulatory language and its history. I find that the truck scale at the Paetsch pit is not a “roadway” or part of a roadway as a matter of fact and as a matter of law. Accordingly, Knife River is not required to install the guardrails or berms prescribed by section 56.9300.

            2.      Whether the Paetsch pit scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment

                                    a.         The Secretary has failed to show that a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger its occupants

            Apart from whether the truck scale is part of the mine’s roadway under the applicable standard, the Secretary also has the burden to prove by a preponderance of the evidence that the drop-off in question is of sufficient grade or depth to cause a vehicle to overturn or endanger its occupants. See United States Steel Corp., 5 FMSHRC 3 (Jan. 1983); Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (11th Cir. 1998); Ormet Primary Aluminum Corp., 23 FMSHRC 1330 (Dec. 2001) (ALJ Zielinski). In Lakeview, the Commission faulted the judge for failing to interpret the regulatory language according to its plain meaning by first deciding whether “a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment,” before considering any existing berms or guardrails. In the context of cross motions for summary decision, the Commission majority remanded for a determination of whether the operator directly contested the Secretary’s assertion that the drop-off was of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.

            In this case, as set forth in detail above, the Secretary’s same expert, Terrence Taylor, found that the approximate 41-inch drop-off was sufficient to cause a vehicle to overturn under both a static and a dynamic tip-over analysis. (See Sec’y Ex. 4.) He further hypothesized that there was endangerment without tip-over if the front tire went up and over the rub rail, and the undercarriage came to rest on the scale, because “[i]t is reasonable to expect that the sudden impact of the metal axle dropping 10 inches and hitting the hard metal surface would endanger the trucks occupants.” (Sec’y Ex. 3, p. 2-3.)

             Although Taylor’s static and dynamic analysis of the risk of a vehicle overturning appears to be mathematically and methodologically sound, Dr. Smith’s critique establishes that both analyses are premised on the faulty and unrealistic notion that a truck would find itself in a position where either half of the wheels were on the scale and the other half were on the ground (static analysis) or suspended in air (dynamic analysis). (K.R. Ex. 3, pp. 4-5.) Dr. Smith stated the following in his report critiquing Taylor’s analyses:

Static Tip-over Analysis

This analysis was done assuming that one side of the truck was on the ground and the other side was at the edge of the scale platform. There was no basis for this analysis as a truck can never get into that position from being on the scale platform. It would have to be driven onto the scale with one side’s tires on the scale and the other side’s tires on the ground. Since that would never happen, this analysis did not represent any real world possibility and was irrelevant to the subject case.

Dynamic Tip-over Analysis

This analysis started with the truck in the following configuration; tires on one side of the truck at the edge of the platform and the tires on the other side of the truck suspended in air off the ground (i.e., one side of the truck suspended in air). This analysis looked at the dynamics as the complete side of the truck fell to the

ground at once. This analysis starts with a truck configuration that is impossible.

Again this analysis did not represent any real world possibility and was irrelevant to the subject case . . . .

Id.

            Furthermore, in both his static and dynamic analysis, Taylor did not account for the speed of the vehicle and he assumed that the vehicle began from a tipping point in which half the wheels were completely off the scale. Such an analysis, however, cannot be performed in a vacuum devoid of the reality of the circumstances at the Paetsch pit scale. Prior ALJ decisions applying the standard teach that all relevant factors must be taken into account in determining whether there is a hazard of a vehicle overturning or endangering its occupants. See Knife River, 32 FMSHRC 912 (July 2010) (ALJ); Ormet, supra, at 1334-1345.

            By contrast, Dr. Smith ran a series of simulations based on vehicle speed and the existence of the rub rails and testified that the potential for turnover basically was zero. Consistent with his report, he convincingly testified that a truck could never reach the position that Taylor’s tip-over analyses placed it in. (Tr. 402-406.) In addition, although Taylor hypothesized about endangerment if the front wheel went over the rub rail and the undercarriage dropped 10 feet to the scale, Dr. Smith pointed out in his report that there was no analysis from Taylor to determine if the truck could go over the rail, and there was no analysis to support Taylor’s opinion that the occupants would be endangered. (K.R. Ex. 3, p. 5.) Further, Dr. Smith testified that neither he nor Taylor was a biomedical engineer qualified to determine injury causation, however, he did credibly testify that shock from any such fall, at 2-3 mph, may be mitigated by seatbelts and seat suspension. (Tr. 407.)

            Based on Dr. Smith’s superior credentials and expertise in vehicle movement and dynamics, and the fact that he, unlike Taylor, considered the totality of the conditions at the truck scale in question, I find that his expert opinion regarding the potential for vehicle turnover or occupant endangerment without tip-over to be more reliable than Taylor’s. Accordingly, I give more weight to Dr. Smith’s expert opinion that no tip-over or endangerment hazard was present from the drop-off in the particular circumstances of this case. See generally Asarco Mining Company, 15 FMSHRC 1303, 1307 (July 1993).

            Given the indisputably slow speeds at which trucks must cross the scale, the Secretary has not convinced me that the truck would have enough forward momentum after the front right tire over traveled the side of the scale to cause a second wheel to over travel the side of the scale such that the vehicle would tip over or endanger its occupants. Even Taylor conceded that a vehicle would only become positioned such that half its wheels were on the scale and the other half on the ground if a driver missed the entrance to the scale and proceeded forward until a critical tipping point was encountered. Taylor posited that such a scenario was possible from alcohol impairment, a bee in the cab, or a heart attack. While a danger may exist that a driver loses control of his vehicle, straddles the side of the scale, and continues despite an obvious imbalance, section 56.9300 does not speak to such danger or loss of control. Instead, section 56.9300 addresses the provision and maintenance of mid-axle height berms and guardrails on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger its occupants.

            I find that the Secretary has failed to meet her burden of proving a violation of the applicable standard. Accordingly, the citation is vacated.

C. Even assuming a violation, Knife River lawfully abated Citation No. 8599811; therefore, failure to abate Order No. 8599817 is vacated. 

            Since Citation No. 8599811 is vacated, there is no need to abate. Accordingly, the failure to abate Order No. 8599817 is also vacated. Even assuming a violation, however, I find that Knife River lawfully abated the citation. Accordingly, I would also vacate the failure to abate Order No. 8599817.  

            Knife River lawfully abated Citation No. 8599811. It removed the truck scale from service by placing concrete barriers in front of the entrance and exit to the scale. I find that the placement of concrete barriers effectively removed the scale from service. Longstanding Commission precedent establishes that the removal of equipment from service is a satisfactory form of abatement with regard to citations issued for “unsafe equipment.” Peabody Coal, 1 FMSHRC 1494 (Oct. 1979); Alabama By-Products, 4 FMSHRC 2128, 2130 (Dec. 1982).

            In addition, the Secretary failed to establish that the concrete barriers had been moved or the scale had been used since the underlying citation was issued. Rather, inspector Burns was told by mine employees that the barriers had not been moved since they were put in place, and no vehicles had used the truck scale at the Paetsch pit since the termination date. The Secretary failed to establish otherwise. In these circumstances, even assuming a valid citation, Knife River lawfully abated the citation by placing concrete barriers in front of the entrance and exit to the truck scale, thus removing the scale from service. 

IV. ORDER

            The truck scale at the Paetsh pit is not a roadway or part of the mine’s roadways under section 56.9300. The Secretary failed to prove by a preponderance of the evidence that the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. It is ORDERED that Citation No. 8599811 and failure to abate Order No. 8599817 be VACATED. Accordingly, Knife River is not required to install mid-axle berms or guardrails on the Paetsch Pit truck scale.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Adele Abrams, Esq., Law Office of Adele Abrams P.C., 4740 Corridor Place, Suite D, Beltsville, Maryland 20705

Patricia Drummond Esq., U.S. Department of Labor, Office of the Solicitor, 1111 Third Avenue, Suite 945, Seattle, Washington 98101

/tjr