FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER,
TELEPHONE: (412) 920-7240
FACSIMILE: (412) 928-8689
February 20, 2013
|
LAKEVIEW ROCK PRODUCTS, INC., |
: : : : : : : : : : : : : : : : : : : : |
CONTEST PROCEEDING
Docket No. WEST 2010-1856-RM Citation No. 6580393; 09/08/2011 Mine: Lakeview Rock Products Mine I.D.#: 42-01975 CIVIL PENALTY PROCEEDING Docket No. WEST 2011-209-M A.C. No. 42-01975-235237 Mine: Lakeview Rock Products |
DECISION ON REMAND
Appearances: Alicia
A.W. Truman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for Petitioner
Kevin
R. Watkins, Esq., Lakeview Rock Products, Inc.,
Before: Judge Andrews
STATEMENT
OF THE CASE
This proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 et seq. (2006) (“the Act” or “the Mine Act”). This matter arose initially pursuant to a
Notice of Contest of Citation No. 6580393 docketed as WEST 2010-1856-RM. On June 22, 2011 I granted Lakeview Rock
Products’ (“Lakeview”) motion for Summary Decision. The Secretary of Labor (“Secretary”) Petitioned
the Commission for Discretionary Review, and by Decision dated December 16,
2011, a four-member panel of the Commission remanded the case
As will be discussed in greater detail below, following
the Commission’s Remand the parties filed several motions and oppositions. By Order of February 10, 2012, I denied the
Secretary’s Motion for Summary Decision, and her Motion in Limine to exclude
evidence, and granted Lakeview’s Motion to Withdraw the part of the Memorandum
in Opposition that pertained to a concession that scales are part of a
roadway. There was no motion or petition
for interlocutory review of this order pursuant to 29 C.F.R. § 2700.76.
A hearing on remand was held on February 22, 2012 in
On June 22, 2011 Penalty Docket WEST 2011-209-M was
assigned to me. The instant Contest
Citation No. 6580393, along with eleven other citations was contained in this
docket. On March 22, 2012 the Secretary
filed a Motion to Approve Partial Settlement along with a Proposed Order for
the eleven other citations in WEST 2011-209-M.
On April 6, 2012, the partial settlement was approved, and jurisdiction
was retained over the subject of this proceeding, Citation No. 6580393.
JOINT
STIPULATIONS
The parties agreed to
the following stipulations, submitted and marked as Exhibit JX-1[1] at the
hearing:
1.
These dockets
involve a sand and gravel mine known as Lakeview Rock Products Mine (the
“Mine”), which is owned and operated by Lakeview Rock Products (“Lakeview”).
2.
The Mine, located
in Salt Lake City, Utah, MSHA ID No. 42-01975, is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C.
§§ 801-965.
3.
The
Administrative Law Judge has jurisdiction over these proceedings, pursuant to
Section 105 of the Mine Act.
4.
Lakeview is the
“operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), of the
mine at which the Citations at issue in these proceedings were issued.
5.
Lakeview is
engaged in mining operations in the
6.
MSHA Inspector
Mike Tromble (“Inspector Tromble”), who issued the Citation at issue in this
proceeding, was acting in the official capacity and as authorized representatives
[sic] of the United States Secretary of Labor when the Citation was issued.
7.
On September 8,
2010, Inspector Tromble issued to Lakeview a Citation, numbered 6580393 (“Citation”)
for allegedly violating 30 C.F.R. 56.9300(b).
8.
There are a total
of six scales at Lakeview’s pits; two at what is referred to as the “Thomas Pit,”
two at what is referred to as the “Lower Pit,” and two at what is referred to
as the “Upper Pit.” All of the scales
are elevated in order for Lakeview employees to perform annual maintenance and
calibration work on each of the scales.
9.
One of the two
scales at the Thomas Pit is elevated to a height of 31.5 inches above ground
level and the other scale at the Thomas Pit is 38 inches above ground level;
both scales are steel plates with the north scale measuring eleven feet four
inches wide and 120 feet long, and the south scale is ten feet six inches wide
and 105 feet six inches long. Both
scales have 8 inch high steel “rub rails” running the length of the scales.
10.
At the Lower Pit
one of the scales is 35 inches above the ground, and the other scale is 38
inches off the ground. Both scales are
also steel plates with the north scale measuring eleven feet wide by 110 feet
long, and the south scales [sic] measuring eleven feet wide and 105 feet six
inches long. Both have 8 inch high steel
“rub rails” running the length of the scales.
11.
At the Upper Pit
one of the scales is 54 inches above the ground, and the other is 54 inches on
one side of the scale and is at ground level at the other side of the
scale. The east scale measures ten feet
wide by 70 feet six inches long, and the west scale measures ten feet wide by
104 feet long. The Upper Pit scales also
both have 8 inch high steel “rub rails” running the length of the scales.
12.
The trucks that
use the scales include ten-wheeled dump trucks, ten-wheeled dump trucks with a
“pup” trailer, single or double belly dump trucks, and tractors with end or
side dump trailers. Their wheelbases
range from 22 feet 8 inches to 61 feet 2 inches. The mid-axle height of these trucks range
from 20 inches to 24 inches. Their
loaded weights vary from 19,000 pounds empty to 80,000 pounds loaded. Between 15 and 100 trucks use the scales
daily.[2]
13.
At the Upper Pit,
the trucks, after they are loaded, travel less than ¼ mile from a loading area
and descend down a roadway, and to the west down a ramp to the scales. After driving on the scales, trucks then
drive out of the mine area.
14.
At both the
Thomas and Lower Pits trucks are loaded with material at a loading area where
other stockpiles are located. Trucks
then travel across the loading area to a point that exits the pits where the
scales are located; all vehicles must travel across the scales to exit the
loading area.[3] The trucks drive on the scales, are weighed,
and then exit the scales to turn onto a public roadway.
15.
The proposed
penalty will not affect Lakeview’s ability to remain in business.
16.
The certified
copy of the MSHA Assessed Violation History reflects the history of the mine
for fifteen months prior to the date of the issuance of the Citation at issue
and may be admitted into evidence without objection by Lakeview.
17.
The parties
stipulate to the authenticity of their exhibits, but not to the relevance or
truth of the matters asserted therein.
Ex.
JX-1
FACTUAL AND PROCEDURAL HISTORY
On September 8, 2010, MSHA Inspector Mike Tromble
determined that six elevated truck scales, located on Lakeview’s mine property,
did not have berms or guardrails that were mid axle height of the largest
self-propelled mobile equipment that traveled across them. Tromble issued Citation No. 6580393 for the
alleged violation of 30 C.F.R. 56.9300(b), determining that the violation was
S&S, due to moderate negligence, and that permanently disabling injury to
one person was reasonably likely to occur. GX-2.
Section 56.9300(a)
requires that “[b]erms 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.” Section 56.9300(b)
specifies that the required berms or guardrails “shall be at least mid-axle
height of the largest self-propelled mobile equipment which usually travels the
roadway.”
Lakeview contested the Citation and in November 2010,
the Secretary and Lakeview submitted cross-motions for Summary Decision. Relevant
to these proceedings is that Lakeview, in its Memorandum in Opposition to
Respondent’s Motion for Summary Decision (“Resp. Opp. Memo”), stated in the
prefatory section of its Argument the following: “The Petitioner acknowledges
for purposes of this Memorandum in Opposition that the scales are part of a
roadway, and that its scales in the instant case are not ‘at least
mid-axle-height.” Resp. Opp. Memo, 2.
On June 22, 2011, I denied the Secretary’s Motion and
granted Lakeview’s Motion for Summary Decision. Lakeview Rock Products, Inc. v. Secretary, 33 FMSHRC 1538 (June
2011) (ALJ) (“Lakeview I”). In
granting Lakeview’s Motion, I focused primarily on whether the scales presented
a drop-down or tip over hazard to trucks, and included some discussion of
previous ALJ decisions regarding whether scales are a part of the mine’s
roadways under the terms of the regulation. 33 FMSHRC at 1544. These previous decisions provided some
guidance, but I noted that they were all distinguishable from the instant case
because each of them involved elevated platforms and scales with no berms,
guardrails, or guarding of any kind. 33 FMSHRC at 1544. Lakeview
I turned on the finding that the scales presented no drop-off hazard to
trucks, equipment, or personnel. 33 FMSHRC at 1545.
The Commission granted the Secretary’s Petition for
Discretionary Review and, by decision dated December 16, 2011, vacated Lakeview I. Lakeview
Rock Products, Inc., 33 FMSHRC 2985 (Dec. 2011) (“Lakeview II”). In its
decision, the Commission set forth a new three-part test for finding violations
of 30 C.F.R. § 56.9300. This test
requires the following determination:
(1) Whether the scales are part of a roadway; (2)
whether each scale has a drop-off of sufficient grade or depth to cause a
vehicle to overturn or endanger persons in equipment; (3) whether the scales
are equipped with berms or guardrails that are at least mid-axle height of the
largest self propelled mobile equipment which usually travels the roadway.
33 FMSHRC at 2988. In applying
the test to this case, the Commission only addressed the second element,
because Lakeview appeared to have conceded the first and third element in its
Memorandum in Opposition to Respondent’s Motion for Summary Decision.[4] 33 FMSHRC
at 2989. The Commission found Lakeview I deficient in that there were
no findings with regard to the second element.
The Commission vacated the decision and remanded the proceeding for a
determination of whether the record contains an unresolved dispute of material
fact. In the Remand, the Commission
stated that if there was an unresolved factual dispute regarding element number
two, the proper course would be an evidentiary hearing. 33 FMSHRC 2985.
Following the
Commission’s remand, Lakeview filed a motion to withdraw its pleading regarding
roadways in the original Memorandum in Opposition, and the Secretary filed an
opposition to the withdrawal motion.
Lakeview argued that the question of whether the scales were roadways
was an unsettled point of law, illustrated by Commissioner Duffy’s dissent, and
the issue should be decided by the judge.
The Secretary argued that the Operator was precluded from withdrawing
its previous motion at this late stage because the “admission had been relied
upon by this Court and the Commission and has become law of the case.” Sec.
Memo in Opp. to Mot. To Withdraw Plead., 2.
The Secretary further advanced this position in its
Motion in Limine, where it argued that any evidence not directly related to the
issue of the grade or depth of the scales’ drop-offs should not be
admitted. The Secretary also filed a
contemporaneous renewed Motion for Summary Decision, where it argued that
Lakeview never 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. As such, the
Secretary argued that its Motion for Summary Decision should be granted. Lakeview opposed this motion, arguing that it
did directly contest 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. Furthermore, Lakeview argued
that the Secretary bears the burden of proving the violation, and Lakeview was
not required to submit specific evidence proving the safety of the scales in
its Motion Opposing Summary Decision.
In my Order on the
post-remand motions, I found that there were questions of material fact because
Lakeview had challenged any notion that there is a drop-off from their scales
of sufficient grade or depth to cause a vehicle to overturn or endanger persons
in equipment in the Memorandum of November 2010. I also found that the issue of whether the
scales were roadways was not the law of the case and, in the interest of
justice, granted the Operator’s Motion to Withdraw Pleading. Accordingly, I denied the Secretary’s Motion
in Limine in order to develop a full record at hearing. I also denied the motions for Summary
Decision because there remained issues of disputed fact. As a result, at the time of the hearing full
development of the Commission’s new analytic framework for issues arising under
30 C.F.R. § 56.9300 was appropriate.
SUMMARY
OF THE TESTIMONY
Mike Tromble has been an MSHA inspector and the
district accident investigator since 2008. Tr. 19. He worked in mining for a decade before
coming to MSHA. Tr. 20. He has worked as
a truck driver, operating explosive, straight, and tractor-trailer trucks for
Dyno Nobel. He also worked as a lead
blaster, a member of the blast observation team, and a quality control manager
at Kennecott. Tr. 20. He holds a degree
in business management and has a certification in diesel technology. Tr.
20.
While conducting his semi-annual inspection on
September 8, 2010, Tromble issued Citation No. 6580393 for “de-elevated” truck
scales in violation of 30 C.F.R. 56.9300(b). Tr. 23-24. Tromble testified that he witnessed various
types of trucks use the scales as they entered and exited each of the three
pits on the mine property. Tr. 24-25. He
estimated that the trucks ranged from 19,000 pounds to 80,000 pounds, and that
mid-axle height would be approximately 24 inches. Tr. 26. He testified that he was told by the mining
company that the number of trucks that traveled over the scales at Lakeview
each day ranged from a minimum of five trucks to a maximum exceeding 100 trucks.
Tr. 26.
Tromble testified that the scales at the Thomas Pit
are beside the entrance to the pit, are elevated, and have eight-inch rub rails
along the sides. Tr. 27. Between the
north and south scales there is a drop-off. Tr. 31. Tromble testified that the area around the Lower
Pit scales was similar to the area around the Thomas Pit scales, with the
primary difference being that the south scale rub rail in the Lower Pit was
damaged. Tr. 31-32; GX-5, GX-8, GX-12. The
Upper Pit scales were similar to those at the Thomas Pit, with the west scale
rub rail at the Upper Pit similarly damaged. Tr. 35, 36; GX-5, 20. Tromble testified that the scales only had
rub rails rather than guardrails. Tr. 36.
He explained that the difference between the types of rails is that
guardrails are intended to keep the truck on the scale, whereas rub rails
indicate to the truck operator the location of the edge of the scale. Tr.
36-37.
Tromble testified that a MSHA PowerPoint presentation
and program policy letter (PPL) articulated MSHA’s position that scales are
considered part of the roadway if there is a drop-off sufficient to cause a
rollover. Tr. 39-40. He testified that
PPL No. P10-IV-1 provided guidance to operators by advising that elevated
scales are considered roadways. Tr. 40-41; GX-6. He also testified that MSHA distributed a PowerPoint
presentation that explained that elevated scales were part of roadways. Tr.
41-42; GX-8. He explained that it is
irrelevant to the inquiry whether a truck must stop on the scales, and that the
main consideration was whether a drop-off exists. Tr. 42-43. Tromble testified that he determined that the
drop-offs at Lakeview were sufficient to cause a vehicle to overturn. Tr.
44-45. Tromble testified that the drop-off
could endanger a person by causing whiplash to the neck or lead to back
injuries. Tr. 45-46. He did not consider
the presence of rub rails or whether trucks came to a stop on the scales in
issuing his citation. Tr. 46.
Tromble testified that a truck rollover would likely
result in jarring injuries to the back, neck and head, and could be
“permanently disabling”. Tr. 54. He
recalled that in March 2010 he had given general mine Foreman Gregg Flowers the
PowerPoint presentation and warned him the truck scales were not in compliance.
Tr. 56; GX-8, p. 2. On
cross-examination, Tromble testified that Fowers responded that he did not
agree with Tromble’s application of Section 56.9300. Tr. 74.
On cross-examination Tromble testified that at each
pit there were roadways by which a truck could enter and exit the pit, and that
a truck does not have to go over scales unless there is material to be weighed.
Tr. 63, 64, 65. He testified that a
truck would have to travel over the scales in order for the mine to be paid for
the rock. Tr. 65. However, he also
testified that he was not aware of Lakeview’s policy wherein companies could
pay by the truckload, rather than by weight, and therefore not have to drive
across the scales. Tr. 79.
Terence Michael Taylor has worked with MSHA for 24
years as a senior civil engineer in the mine waste and geotechnical engineering
division at the Pittsburgh Safety and
In the third analysis, Murawski and Taylor looked at
the Thomas Pit, which at 31.5 inches had the lowest drop-off, and tried to
calculate the lowest the center of mass that would still pose a roll over
hazard. Tr. 101. Their conclusion was
that the center of mass could be as low as 4.5 feet above ground and still pose
a roll over hazard, meaning that it would pose such a hazard on all other
scales. Tr. 101-102; GX-10, p. 13.
In the fourth analysis, Murawski and Taylor considered
whether there was a potential for roll over when they assumed that the axle
strikes the deck of the scale as it tipped over. Tr. 102-103; GX-10, pp.
9-12. In performing this analysis, they
assumed an eight-foot wide truck, with a five-foot center of mass, and that the
clearance from the ground to the axle was 13 inches. Tr. 103.
Scott Hughes has been an employee at Lakeview since
the 1970s, and currently works as the corporate vice president. Tr. 116. In the course of working for Lakeview, Hughes
built and assembled the scales. Tr. 116-117.
Hughes testified that in order to enter or exit the pit, the trucks have
to drive along the main roadways, which they can continue along to get in or
out of the pit. Tr. 124. In order to use
the scales, the trucks exit the main roadway and use the alternate means of side
roads to access the scales. Tr. 124-125.
Hughes testified that some of Lakeview’s contracts
with customers don’t require the trucks to use the scales because the rock is
sold by the yard rather than by weight. Tr. 126. He testified that in instances where the rock
is sold by weight, the trucks usually only use the scales after they are loaded.
Tr. 127. Because Lakeview keeps records
of each truck’s empty weight in its initial trip into the pit, it does not
require subsequent empty reweighings. Tr. 127.
Hughes testified that trucks using the scales travel
at a rate of speed slower than would an individual walking heel to toe in a
field sobriety test. Tr. 127-128. He
stated that trucks sometimes rub up against the rub rails, which causes damage
to the rails but also keeps the trucks on the scales. Tr. 128-129. Hughes testified that he conducted a
videotaped experiment where he tried to drive a truck off the scales, and was
unable to do so because of the rub rails. Tr. 129; RX-M. He repeated the experiment with the truck
empty and with the truck loaded with rock, and in each instance was unable to
drive over the side of the scales. Tr. 129.
On cross-examination, Hughes
testified that the scale where he ran this test did not have damaged rub rails
as do several of the scales at Lakeview. Tr. 140-141.
Hughes testified that he did not consider the scales
to be part of the roadway because they are a “weighing machine,” and are not
used as an entrance or exit. Tr. 136. He
testified that at each scale there are roadways to each side, and those
roadways have axle-high berms in place. Tr. 136-137. On cross-examination, Hughes admitted that
the inspector’s estimates of between five and 100 trucks driving over the
scales per day was accurate. Tr. 137.
CONTENTIONS
The Secretary argues that the scales at Lakeview were in
violation of 30 C.F.R. § 56.9300(b) because they were lacking berms or guardrails
that were at least mid-axle height of the largest self-propelled mobile
equipment that usually travel across the scales. Following the analytic framework provided by
the Commission, the Secretary addresses the first element by arguing that the
scales were a part of the mine’s roadways because (1) the Respondent already
conceded this point in its earlier Memorandum in Opposition; (2) the
determination has become the law of the case; (3) the regulations are clear and
unambiguous; and (4) if an ambiguity in the regulations exist, the Secretary’s
interpretation is entitled to judicial deference.
Next, the Secretary argues that the drop-offs from the
elevated truck scales are of sufficient grade or depth to cause a vehicle to
overturn or endanger persons in the vehicle.
Inspector Tromble testified that based on his experience he determined
that the drop-offs were of sufficient grade or depth to cause trucks to
overturn. Furthermore,
The Secretary also asserts that Lakeview admits that the
scales did not have guardrails or berms that were mid-axle height of the
largest vehicle that traveled on the roadways, thereby meeting the third element
of the Commission’s test. The Secretary
argues that evidence concerning Lakeview’s eight-inch rub rails is irrelevant
to this analysis because rub rails and guardrails serve different
purposes. She argues that the
Commission’s remand made clear that the presence of berms or rub rails may only
be considered after the judge has established that a hazardous dropoff is
present. Furthermore, the Secretary
argues that Lakeview’s video of a truck driving across the scales is irrelevant
because it is neither a scientific study nor a representation of a realistic
scenario. Instead, she asserts that if
the elements of a violation of § 56.9300 are shown to exist, any arguments
concerning the necessity or validity of the violation are misplaced.
The Secretary argues that Inspector Tromble’s testimony
concerning the likelihood of a truck coming in contact with the rub rails,
along with the testimony concerning the damaged rub rails, show a reasonable
likelihood that the hazard would result in injury. The Secretary asserts that based on
Respondent argues that Citation No. 6580393 was issued in
error because 30 C.F.R. § 56.9300 is inapplicable to truck scales such as those
at Lakeview. Further, if one reads
scales into the regulations, an absurdity arises. The regulation requires berms or guardrails
on the “banks of roadways” where there is a sufficient “grade or depth” to
cause a vehicle to overturn. However,
scales do not have “banks,” and therefore cannot be in compliance with the
regulation. Lakeview also argues that
scales do not have “grades” that slope away, indicating that the drafters of
the regulation neither contemplated scales nor intended it to apply to scales. The Secretary counters that these qualities
are not necessary, as the Commission has held that bridges, which do not have
traditional banks or grades, are roadways.
Respondent also argues that the scales at Lakeview should
be distinguished from other scales that have been found to be parts of roadways
in previous ALJ decisions. In this
instance, the mine’s scales were separated from all main roadways, and many
trucks were not required to use the scales.
Lakeview further asserts that the Secretary’s interpretation of the
regulation is unreasonable and should not receive judicial deference.
Respondent further argues that even if the scales are
part of the roadways, the rub rails would prevent a vehicle from
overturning. In support of this
argument, Lakeview refers to the video submitted into evidence, which shows a
truck unable to drive over the rub rails.
Further, the Secretary failed to show that any truck at Lakeview has
ever driven off the scales. In addition,
ANALYSIS:
According to the three-part analysis articulated by
the Commission in Lakeview II, the
first question that must be addressed is whether the scales at Lakeview are
part of a roadway. 33 FMSHRC at 2988. It
should initially be noted that any argument that scales are per se part of a roadway was implicitly
rejected by the Commission when it established this first element. If scales should always be considered part of
a roadway, then the Commission would have so stated and laid out a two-part
analysis. Knife River Corporation Northwest, 34 FMSHRC 1109, 1121 (May 2012) (ALJ).
Instead, this question is a mixed question of law and fact.[6]
a) The Law of the Case Doctrine does not Apply to the
Issue of Whether Scales Are Part of a Roadway
The Secretary argues that Lakeview conceded that the
truck scales were part of a roadway and that this court accepted the concession. It further argues that the issue was not
appealed to the Commission and therefore became the law of the case. Sec. Post Hearing
The Respondent stated in its Memorandum in Opposition,
“The Petitioner acknowledges for purposes of this Memorandum in Opposition that
the scales are part of a roadway, and that its scales in the instant case are
not at least mid-axle-height.” Resp. Opp. Memo. at 2.[8] The sentence has two distinct components,
separated by a comma. The first part of
the sentence (preceding the comma) is a legal conclusion, while the second part
is a factual determination. The second
part of the statement addresses the factual question as to the height of the
guardrails or berms, and is within the parties’ powers to stipulate. However, the concept of “roadway” is a legal
category that is within the judge’s responsibility to define and apply. The question of whether scales are part of a
roadway has not been definitively addressed by the Commission. Citing to a myriad of cases, Judge McCarthy
recently stated, “The Commission has yet to decide whether a truck scale is a
roadway for purposes of 30 C.F.R. § 56.9300.” Knife River Corporation
Northwest, 34 FMSHRC 1109, 1118 (May 2012) (ALJ). (“Knife River-2012”)Therefore, not only is it a legal conclusion,
but it is one without consensus.
Courts have been abundantly clear that parties may not
simply stipulate to issues of law. The
First Circuit has stated that, “[i]ssues of law are the province of courts, not
of parties to a lawsuit, individuals whose legal conclusions may be tainted by
self-interest. Courts, accordingly, “are not bound to accept as controlling,
stipulations as to questions of law.” Estate of
The first part of the sentence concerning whether the
scales were part of the roadway is not a stipulation, and should not be treated
as such. “A stipulation is an agreement
between the parties as to a fact of the case, and, as such, it is evidence
introduced by both of the parties.”
Furthermore, determination of the issue of whether the
scales were part of the roadway never became the law of the case. The cases cited by the Secretary for the
proposition that issues not appealed to the Commission become the law of the
case are distinguishable from the instant case.
In Douglas R.
Rushford Trucking, the ALJ made clear findings on negligence and
unwarrantable failure in his initial decision. 23 FMSHRC 790 (2001). These issues were not appealed to the
Commission, and the Commission affirmed the judge’s finding of a violation, but
remanded the case in order to consider the 110(i) criteria. 23 FMSHRC at
791. On remand, the ALJ reversed his earlier
findings that the violation was the result of unwarrantable failure. 23 FMSHRC
at 791-92. The Commission found error in
the judge’s retraction because the remand specifically “directed the judge to
explain his reduction in the proposed penalty in light of his finding of gross negligence.” 23 FMSHRC at 793
(emphasis added).
In the instant case, the Commission articulated a new
analytic framework and remanded for a hearing and new decision. The Commission made clear in a footnote that
it was not addressing the issue of whether scales were part of the roadway
stating, “since the parties concede this issue and neither party raised it on
review, we think it is not appropriate to address the issue of whether the
scales were part of a roadway.” Lakeview II,
33 FMSHRC 2985, n. 4.
The Secretary also cites Hanna Boys Center v. Miller, 853 F.2d 682 (9th Cir. 1998), for the
proposition that issues decided by implication become the law of the case.
However, Hanna Boys Center is also inapposite.
In Hanna
Boys Center, the Ninth Circuit held that the issue of subject matter
jurisdiction was the law of the case because it was implicit in the motions
panel’s dismissal. The Circuit Court
explained that though the motions panel did not specify that it dismissed the
case for lack of subject matter jurisdiction, “it necessarily did so by
implication.” 853 F.2d at 685.
The issue presented in the motion papers on appeal was
the district court's lack of subject matter jurisdiction over the entire case,
not just whether the district court had the power to grant a stay. Further, it
is apparent that the district court interpreted the motions panel's order to
preclude subject matter jurisdiction. Four days after the motions panel issued
its order, the district court held a hearing to determine the meaning of the
motions panel's order and dismissed the Center's complaint for want of subject
matter jurisdiction…. The entire
focus of these materials was the issue of the district court's jurisdiction.
853 F.2d at 685. However, in the
instant case, the Secretary specifically states that Lakeview did not appeal the issue of whether truck
scales were part of the roadway to the Commission. These situations are quite different, and the
Secretary may not have it both ways. It
cannot claim at once that the issue has become the law of the case specifically
because it was not appealed to the Commission, while also arguing that the
issue has become the law of the case because (as in Hanna Boys Center) the issue was presented clearly on appeal.
As the Commission noted, I accepted the guidance of
past ALJ decisions concerning scales in Lakeview
I, while distinguishing those cases because they all involved scales with
no rub rails or berms. As such, my
decision turned on the issue of whether the scales provided a drop-off or tip over
hazard for trucks. Because I found that
these scales did not present such a hazard, I performed minimal factual or
legal analysis on the issue of whether the scales constituted part of a
roadway. Therefore, unlike the cases
cited by the Secretary, I find that the issue of whether the Lakeview scales
are part of the roadway is not the law of the case.
b) The Scales at Lakeview Are Not Part of a Roadway
The Commission
has not provided definitive guidance as to whether truck scales are part of a
roadway, and there is not a consensus among ALJs that have considered the issue. The following cases have examined the issue
to some degree.
In Walker Stone
Several years
later, in APAC-Mississippi, Inc., 26
FMSHRC 811 (Oct. 2004) (ALJ), Judge Weisberger looked to the dictionary
definition of “roadway” in order to determine if elevated truck scales were
part of the roadway. The judge held that
a roadway consists of “the entire route traveled by the trucks,” and
that a scale elevated 28-30 inches with no rubrail was a roadway. 26 FMSHRC at
814 (emphasis in original).
A year later, in Carder, Inc., 27 FMSHRC 839 (Nov. 2005)
(ALJ), Judge Manning held that scales with a 32-36 inch drop-off and no berms
were part of the roadway, however he vacated the citation on notice
grounds. Due to the low rate of speed by
which trucks travel over the scales, the judge held that “a reasonably prudent
person familiar with the mining industry and the protective purposes of section
56.9300(a) would not have recognized that the cited scale was covered by the
standard.” 27 FMSHRC at 858.
More recently, in
Knife River, 2010 WL 2995087 (July
2010) (ALJ) (“Knife River-2010”),
Judge Rae found that truck scales elevated 26-36 inches with nine inch high rub
rails were roadways under Section 56.9300.
The Respondent used the dictionary definition to argue that a roadway is
used to travel to or from a destination, whereas the scales constitute a
destination. In finding the Respondent’s
argument unpersuasive, the judge made much of the fact that all trucks carrying
the product from the mine to the end user must cross the scales. “The scales are an integral part of the road
used by the trucks and are an essential part of the commercial trek from the
pit to the consumer.”
In the first
post-Lakeview decision, Judge Manning
applied the Commission’s three-part test from Lakeview II and held that the scales were part of the roadway. McMurry Ready Mix Co., 2012 WL 1242979
(March 2012) (ALJ). The judge reviewed
previous ALJ decisions and found that the scale was “an essential part of the
‘commercial trek from the pit to the consumer,’” and therefore met the definition
articulated in
Thus far, the
case that has most fully considered the question of whether an elevated scale
is part of a roadway has been Knife
River-2012. In Knife River-2012, Judge McCarthy applied the Commission’s new three-part
test and provided a thorough analysis in determining that elevated truck scales
with 10-inch rub rails were not part of the roadway. The judge found unpersuasive the argument
that the scale is part of a continuous road and therefore, by definition, part
of the roadway by definition. 34 FMSHRC at 1121. He noted that because the Commission required
in Lakeview II an initial
determination of whether the scales were part of the roadway, the judge must
examine the “design, location, and use of the truck scale,” in making his
determination.
Drivers do not
use the scale as one typically uses a road, bridge, bench, or ramp (i.e., as a
means of traveling from one point to another)…Rather, the scale is used as a
piece of equipment for the sole purpose of weighing vehicles, which slowly move
across the scale with intermittent stops before proceeding back on course. The fact that trucks enter one end of the
scale and exit on another is completely secondary to the scale’s function and
use.
The notice and
comment section for 30 C.F.R. 56 and 57 affirms this functionalist approach by
having made clear that the regulation was being changed in order to allow for
consideration of a roadway’s function.
The Rule noted that the change was from “the existing berm standard
applied to all elevated roadways, regardless of their function or frequency of
use.” Safety Standard for Loading, Hauling, and Dumping and Machinery and
Equipment at Metal and Nonmental Mines, 53 FR 32496-01, 32500 (proposed Aug. 25,
1988).[10] This change in
looking at the function of a roadway indicates that function should also be
considered in determining whether something qualifies as a roadway. Furthermore, the Commission later endorsed
the approach of looking at the “nature of the use” of a ramp in determining
that it was part of a roadway. Capitol
Aggregates, Inc., 4 FMSHRC 846, 847 (May 1982).
In order to
illustrate the advantage of this approach, Judge McCarthy presented a reductio ad absurdum in his decision:
Consider, for example,
a self-propelled vehicle or piece of equipment that is loaded on the back of a
flatbed truck for transportation to a mine site. When the vehicle is driven up
the ramp and onto the flatbed truck, the truck does not become a “roadway” as
the term commonly is understood. Instead, the flatbed truck is a piece of
equipment, whose purpose and use is wholly independent of any adjacent roadway.
34 FMSHRC at 1121. Only a functionalist approach that looks at
the purpose, location, and details of the scale can allow the judge to
distinguish between scales, bridges, trucks or other areas that one may drive
on.
Judge
McCarthy concludes in Knife River-2012
that the regulation does not cover truck scales. However, if the language of 30 C.F.R. §
56.9300(a) categorically excluded all truck scales, then the same problem would
arise as if the regulation categorically included all truck scales-the first
element of the Commission’s Lakeview
test would become irrelevant. Rather, I
agree with Judge Melick’s observation in Highway
195 Crushed Stone, Inc. that the regulation “suffers from ambiguity and
vagueness”, especially in the context of the function of scales equipment. There may be a situation where truck scales
would fall under Section 56.9300, for example where there is no separate access
road off of the haul road, but the scales at Lakeview are not part of the
haulage roadways. Specifically, in the
instant case, I find that the regulation is ambiguous and further find that the
Secretary’s interpretation is unreasonable and not entitled to judicial
deference.
An
agency’s interpretation of its own regulation is entitled to “controlling
weight,” unless the interpretation is “plainly erroneous or inconsistent with
the regulation,” or unreasonable. Bowles
v. Seminole Rock & Sand Co., 325
In this instance,
the Secretary’s interpretation of Section 56.9300, as described in her brief, would
cover all elevated truck scales.
However, the clear wording of the regulation describes “banks of
roadways” as part of the roadways contemplated. 30 C.F.R. § 56.9300(a). Elevated truck scales such as those at
Lakeview do not have banks, indicating that they do not sensibly conform to the
wording of the regulation. Indeed, it is
not clear how an operator would comply with the requirement that berms, in
particular, or guardrails be provided and maintained on the “banks” of an elevated
truck scales such as those at Lakeview.[11]
Following
a functional approach to determine whether the truck scales here are part of a
roadway, it is necessary to look at the placement of the scales, how trucks
drive over the scales, and why trucks drive over the scales. There are elevated truck scales at each of
the three pits at Lakeview. Tr. 24-25. Unlike
the scales in Walker Stone Co. and Highway 195 Crushed Stone, Inc., the
scales at each of the three pits have eight-inch rub rails along the sides,
with those at the Lower and Upper Pits having some damage. Tr. 27, 31-32,
36.
In order to
access the truck scales, one must drive off the main haulage roadway and onto
the access road leading to the scales. Tr. 124-125, 138. During his testimony, Hughes identified a
number of haulage roadways that trucks may take into and out of the pits that
do not involve using the truck scales. Tr. 124-125. Unlike the scales described in Knife River-2010, where all trucks had
to use the scales, here a minority of the truck trips to the pits involve the
scales. If the company purchasing rock
from Lakeview has a contract where the rock is sold by weight, their empty truck
must use the truck scale only the first time it enters the pit. Tr. 127. Lakeview keeps records of the weight of each
empty truck, so that thereafter such trucks must only use the scale while
exiting the pit loaded with product. Tr. 127.
Additionally, some of the contracts that Lakeview has with customers
sell rock by the yard, rather than by weight, so those trucks never have to use
the truck scales. Tr. 126.
Inspector Tromble
testified that he was told that between five and 100 trucks use the various
scales daily. Tr. 26. Any truck
approaching the scales would see several signs, including one requiring trucks
to stop before proceeding onto the equipment. Tr. 126. The truck proceeds onto the scale extremely
slowly. Tr. 127-128. Hughes described
the rate of speed as slower than a field sobriety test where an individual
walks heel to toe or the rate at which one enters a garage. Tr. 127-128. If a truck strays close to the edge of the
scale, the rub rails keep the truck from going over. Tr. 128. The Secretary argued that Respondent’s video
recording showing a truck driving across the scales is irrelevant because it
does not present a realistic scenario.
But the Secretary’s evidence does not present a realistic scenario,
either. See, RX-M.
It is clear from
the record that the elevated truck scales at Lakeview constitute pieces of
equipment to which some trucks travel, using a service or access road, and travel
from, along a similar road. However the
scales themselves are pieces of equipment, rather than part of the mine’s
haulage roadways. The purpose of driving
over the scales is not the same as driving over a haulage roadway, which is a
means to get from a location to a destination.
In this instance, the scales are the destination and once trucks stop at
the entrance to the equipment, idle forward to the weighing platform, stop and
are weighed, and idle back to the access road, the trucks then travel to a new
destination.
Though the
Commission has not yet addressed the question of whether truck scales are part
of a roadway, it has in the past described a truck scale as equipment in a list
that included a mobile tipple, a stationary grading tipple, and front-end
loaders. Mineral Coal Sales, Inc., 7
FMSHRC 615, 615 (May 1985). Furthermore,
the scales at issue here were designed and installed in order to weigh trucks,
not as a means of facilitating travel.
Having determined
that the scales here do not meet the first element of the Commission’s test,
the evidence also shows the second element is not met.
In addition to
the issue of whether the truck scales were part of a roadway, the Secretary has
the burden of showing, according to the second element of the Commission’s test,
that each scale has a drop-off of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment. Lakeview II, 33 FMSHRC at 2988.
Here, the evidence submitted at hearing was insufficient to show that
each scale had a drop-off of sufficient grade or depth to cause a vehicle to
turn over or endanger persons in equipment.
The Secretary
presented expert testimony and calculations by Terence Taylor to show that the
drop-off could cause a vehicle to overturn.
I find the
assumptions as to the position of the truck, underlying the calculations, to be
problematic. It would seem to be
impossible for a truck to either attain or come to rest in a position that
When Taylor and
Murawski assumed that a truck at the scales is the same as a truck on a hill
with a rather severe side slope, ranging from 34 degrees to 48 degrees, this is
consistent with the truck drawings in the Summary of Calculations and reinforces
that the underlying assumption of the truck with one side completely off the
scale deck. GX-9, pp. 2, 9, GX-10.
After testifying
at the Knife River hearing before
Judge McCarthy,
The unsupported
assumption of such a compromised position of a truck as would permit tip over
to occur, based on the calculations, cannot be accepted as probative of the
Secretary’s assertions on element two of the required analysis. The conclusions drawn in the Summary of
Calculations, and
In the next
analysis,
The final
analysis that
Therefore, I find
the assumptions underlying the engineering study and the testimony presented to
explain the conclusions drawn materially deficient in showing that the Lakeview
scales were a tip over hazard.[13] Accordingly, I
cannot accept the calculations, however accurate they might be, as credible and
probative of the requirements to be met in element two of the test.
The Commission in
Lakeview II stated that the presence
and effect of rub rails should only be considered after determining whether the
drop-off fits within the scope of the safety standard. 33 FMSHRC at 2989. Here, the rub rails provide visible, tactile,
and audible warnings of the scales’ sides to truck operators. Tr. 112,
140. As the name implies, the tires of a
truck that has strayed towards the edge of the scale rub against the
rails. Several of the rub rails were
damaged, indicating that trucks had rubbed against them; however, no truck has
ever gone over a scale at Lakeview, indicating that the rub rails adequately
warned the truck operator to direct the truck away from the edge. Tr. 140. Therefore, though not essential to my
decision here, I find that the rub rails on the elevated scales at Lakeview
adequately protect the safety of persons in equipment
The third element
of the Commission’s test requires a determination of whether the scales are
equipped with berms or guardrails that are at least mid-axle height of the
largest self propelled mobile equipment which usually travels the roadway. Lakeview, 33 FMSHRC at 2988. The parties stipulated to the fact that the
mid-axle height of the trucks that travel the Lakeview scales range from 20-24
inches. JX-1, Stip. 12. Furthermore, it was clear from the testimony
that the scales at issue have eight-inch rub rails, and no additional berms or
guardrails. Tr. 36. Though the issue is
moot at this point in the analysis, the scales at Lakeview did not have berms
or guardrails that were at least mid-axle height of the largest self propelled
mobile equipment that usually travels the roadways, and this element in the
analysis is met.
CONCLUSION
The Commission’s Remand, Lakeview II, was for a determination of whether material facts were
in dispute in this proceeding. The
Commission directed that if such disputed material facts were present, the
proper course of action would be to provide an evidentiary hearing. In the Remand, the Commission also
established the three-part test discussed above when applying the facts found
to 30 C.F.R. § 56.9300. Following the
Remand, I found there were material facts in dispute, granted withdrawal of
Lakeview’s roadway concession, denied motions seeking to restrict application
of the new test, and held an evidentiary hearing to ensure a full and fair
exposition of the facts and circumstances surrounding the issue presented.
I have found that elements one and two of the test are
not met. Either of these findings would
be sufficient to hold that the regulation does not apply to the equipment used
to weigh trucks at the Lakeview Rock Products mine. Specifically, I find that:
1)
The six pieces of
scales equipment at Lakeview are not part of this mine’s haulage roadways.
2)
The Secretary has
not established by a preponderance of the evidence that trucks using Lakeview’s
scales face the hazard of overturning or endangering persons in equipment due
to drop-offs at the elevated scales.
3)
Element three was
stipulated and therefore met.
Since all three elements of
the test must be met, 30 C.F.R. § 56.9300 was not violated by Lakeview, and the
instant citation was not validly issued.
ORDER
Citation
No. 6580393 issued to Lakeview Rock Products, Inc., on September 8, 2010 is VACATED.
/s/
Kenneth R. Andrews
Kenneth R. Andrews
Administrative
Law Judge
Distribution:
Alicia
A.W. Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, Colorado
80202-5710
Kevin
R. Watkins, Esq., Lakeview Rock Products, Inc., P.O. Box 540700, 900 North
Redwood Road, North Salt Lake, Utah
84054
[1] Subsequent exhibits will be referred to as GX-# for Government Exhibits, RX-# for Respondent Exhibits.
[2] At hearing, Inspector Tromble testified that five to 100 trucks travel the scale daily. Tr. 26, 47. Taylor and Hughes also cited this figure. Tr. 111, 137.
[3] At hearing, Hughes testified that not all trucks must use the scale when exiting the pits. Tr. 125-127. Inspector Tromble similarly testified that there were alternate entrances and exits. Tr. 63-65.
[4] In his dissent, Commissioner Duffy disagreed with the Commission’s skipping over the first element, arguing that scales are not part of a roadway. 33 FMSHRC 2991.
[5] In
[6] For a description of the analysis for a mixed question of law and fact, See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 269-70 (3rd Cir. 2005).
[7] The terms concession and stipulation are used interchangeably here because they have the same legal effect. However, it should be noted that Lakeview did not include this statement in its Joint Stipulations.
[8] The Respondent presumably meant that the guardrails or berms were not mid-axle height.
[9] Courts
have long held that a party may not stipulate to a legal conclusion. “If the
stipulation is to be treated as an agreement concerning the
legal effect of admitted facts, it is obviously inoperative; since the court
cannot be controlled by agreement of counsel on a subsidiary question of law.” Swift & Co. v. Hocking Valley Ry. Co., 243
In Neuens v. City of Columbus, the Sixth Circuit stated, “‘Parties may not stipulate to the legal conclusions to be reached by the court,’” and held that the District Court erred when it “blindly accepted Bridges' stipulation without engaging in an independent review of whether he was acting under color of state law.” 303 F.3d 667, 670 (6th Cir. 2002) (quoting Saviano v. Commissioner of Internal Revenue, 765 F.2d 643, 645 (7th Cir.1985)); see also Longhorn Partners Pipeline L.P. v. KM Liquids Terminals, LLC, 408 Bkrtcy.S.D.Tex. 90, 95 (2009) (“Though parties can stipulate certain facts, parties cannot stipulate conclusions of law or the legal effect of stipulated facts. Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir.2006) (“We are required to interpret federal statutes as they are written ... and we are not bound by parties' stipulations of law.”)
[10] The discussion of function and frequency in the notice and comment section went on to discuss alternative methods for “service and secondary roadways, such as tailings dam roads.” 53 FR at 32501. These infrequently traveled roadways are covered under 30 C.F.R. § 56.9300(d). Neither party has propounded the argument or presented evidence that this section should govern the truck scales.
[11] Berms are defined as “A pile or mound of material along an elevated roadway capable of moderating or limiting the force of a vehicle in order to impede the vehicle’s passage over the bank of the roadway.” 30 C.F.R. § 56.9000. These would likely be very difficult or impossible to construct on the elevated truck scales here, and still provide an effective visual, tactile and physical impediment to movement, as well as allowing for access under the scales for periodic maintenance.
Guardrails could be retrofitted to the metal structure
of the equipment, but in the absence of credible evidence that scales equipped
with rub rails are hazardous pieces of equipment, and considering the
construction cost of $30,000 or more for each set, the burden imposed on this
industry would appear to be considerable. See, Knife River-2012, Footnote 15.
Further, it is also not clear that
[12] It
should be noted that Judge McCarthy found
[13] The Secretary submitted additional calculations on the Court’s request after hearing that took into account the presence of the rub rails. However, these too did not address the problem discussed above.