ORDER GRANTING THE SECRETARY’S MOTION FOR SUMMARY DECISION REGARDING THE VIOLATION OF 30 C

6. McMurry’s Crusher #1 is assigned Mine I.D. No. 48-01203.

7. McMurry is subject to the jurisdiction of the Mine Act, and the Administrative Law Judge has jurisdiction in this matter.

8. On November 30, 2010, MSHA Inspector Coby Wilkes issued McMurry Citation No. 6456059.

9. Citation No. 6456059 alleges that McMurry was in violation of 30 C.F.R. § 56.9300(b) on November 30, 2010 because the guardrail on one of the edges of the elevated scales was not at least mid-axle height of the largest self-propelled mobile equipment which usually travels over the scales.

…

12. At the time of the inspection on November 30, 2010, both edges of the scales were equipped with a sturdy metal bumper which was nine inches high.

13. The citation was written for only one of the two edges of the scales.

14. At the time of the inspection on November 30, 2010, the edge at issue had neither a berm nor a guardrail which was mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.

15. The scales were 10 feet 10 inches wide and 115 feet long.

16. On the side of the scales at issue, the drop-off, measured from ground to platform, ranged in height from 35 to 40 inches.

17. The drop-off on the other side of the scales is not at issue.

18. Joint Exhibits 2-4 are photographs of the scales taken from three different positions.

19. Joint Exhibits 2-4 depict what they purport to depict.

20. Joint Exhibit 4 is a photograph of a semi-tractor on the scales.

21. Semi-tractors like the one pictured in Joint Exhibit 4 are the largest, self-propelled equipment that travels on the scales.

22. A stoplight stands near the trailer at the end of the scales.

23. That stoplight is pictured in Joint Exhibits 2 and 3.

24. The scales are regularly used to weigh the product mined and processed by McMurry as it is leaving the mine to be delivered to a purchaser.

25. McMurry stipulates that, if Citation 6456059 were affirmed, the $100 penalty would be appropriate and would not impair its ability to remain in business.

26. On August 22, 2007, MSHA inspected a scale at McMurry Crusher #3, Mine I.D. #48-01518.

27. Following the inspection, Citation No. 6305593 was issued for a violation of 30 C.F.R. § 56.9300(b) for not having guard rails on the scales at the scale house.

28. According to the termination document, that citation was terminated the same day after, “[g]uarding and a tire bumper were installed on the scales at the scale house bringing this violation into compliance.”

29. Following an MSHA inspection on July 21, 2010, McMurry Crusher #3 mine, I.D. # 48-01418 was issued Citation No. 6455327 for violation of 30 C.F.R. § 56.9300(b).

30. The inspector noted in Box 8 of Citation No. 6455327 that the outside guards on the elevated scales were only 6 ½ inches high and there was a drop off of 3 feet on each side of the scales.

31. Citation No. 6455327 was terminated on August 17, 2010 when, “[a]n additional guardrail was installed along the sides of the scales, bringing this violation into compliance.”

32. Rub-rails are intended to guide vehicles and provide a visible, audible, and/or tactile indication to the driver of the edge of the travelway.

33. At a hearing in MSHA v. Knife River Corporation, Northwest in Portland, Oregon on May 5, 2011 two MSHA inspectors testified that they were not aware of any instances in which (1) a truck had over-traveled an elevated truck scales and overturned, or (2) a truck driver had been injured as a result of traveling the side of any elevated scales.

II. Brief Summary of the Parties’ Arguments

A. Secretary of Labor

The Secretary argues that there is no genuine issue of material fact as to whether McMurry violated the standard of 30 C.F.R. § 56.9300(b) when it failed to provide berms or guardrails of sufficient height along an edge of an elevated scale used by vehicles at its mine and that McMurry had sufficient notice that the standard applied to elevated truck scales.

The Secretary argues that in satisfaction of the elements required to prove a violation of the standard, the scale at McMurry’s Crusher #1 was part of a roadway, had a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment, and was not equipped with berms or guardrails that were at least mid-axle height of the largest self-propelled mobile equipment that usually traveled the roadway. The Secretary argues that the rub-rails along the edges of the elevated scale were noncompliant. Mid-axle of semi-tractors like the one pictured in Joint Exhibit 4, the largest self-propelled mobile equipment traveling the scale, was approximately 22 inches. The height of the sturdy metal bumper at the edge of the scale was only nine inches high.

The Secretary further argues that the Operator was on notice that the scale violated 30 C.F.R. § 56.9300(b). The Operator had notice that the scale was a roadway and that the rub-rails did not meet the standard through prior enforcement because another of McMurry’s mines, Crusher #3, was issued a citation for violation under circumstances where the scale was equipped with a rub-rail that was less than mid-axle height. Further, Program Policy Letter P10-IV-01 (the “PPL”), which was intended to clarify the standard, was mailed to mine operators and posted on the MSHA website after it was issued August 26, 2010.

B. McMurry Ready Mix Co.

McMurry argues that summary decision in its favor is appropriate. First, it argues that the cited standard does not apply to truck scales. Second, it argues that it did not have adequate notice that the cited standard would apply to the scale at the Crusher #1 mine.

McMurry has three points to support its first argument that 30 C.F.R. § 56.9300 does not apply to truck scales. First, McMurry argues that a truck scale is not a roadway. Second, it argues that even if scales are considered to be a “roadway,” the cited standard does not require berms or guardrails on McMurry’s scale because the standard is not intended for scales that are equipped with rub-rails. Third, McMurry asserts that MSHA’s policy letter No. P10-IV-1 cannot be used to establish enforceable standards for determining when a rub rail is insufficient protection and when a mid-axle height berm or guardrail is required.

McMurry’s second argument is that it was not given fair notice that the cited standard applied to the truck scales at the Guernsey site. It argues that the plain language does not clearly indicate that truck scales are covered by the “berms and guardrails” standard; instead the standard covers “roadways.” It also argues that MSHA has a long history of non-enforcement. It notes that from the time of the installation at Crusher #1 in July 2008 up to the November 30, 2010 inspection, MSHA has inspected the truck scales and has never issued a citation. MSHA had also determined in August 2007 at the same site, but at the Crusher #3 mine, that a truck scale equipped with a rub-rail similar to the one in this case had not violated 30 C.F.R. § 56.9300(b). Finally, MSHA issued a video on its website entitled “Workplace Exams – How to Recognize Common Hazards,” which depicted rub-rails installed on a truck scale that are similar to those for which the citation was issued.

III. DIScussion and analysis of the issues

Commission Procedural Rule 67 sets forth the grounds for granting summary decision, as follows:

A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b).

The safety standard at issue provides:

(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.

30 C.F.R. § 56.9300. The Commission established three elements that must be analyzed in a case involving scales. Lakeview Rock Products, Inc., 33 FMSHRC ____, No. WEST 2010-1856-RM (December 16, 2011); 2011 WL 6740384). The three elements are:

(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 or equipment; and

(3) Whether the scales are equipped with berms or guardrails that are at least mid-axle height of the largest self-propelled mobile equipment that usually travels the roadway.

A. The First Element

The first element of 30 C.F.R. § 56.9300 is whether the scales are part of a roadway. Part 56 the Code of Federal Regulations does not define “roadway.” In cases considering the first element, according to the plain meaning of the word, scales are a roadway if the scales are part of the entire route traveled by trucks on the trek to the consumer and are not merely equipment.

In APAC-Mississippi, Inc., 26 FMSHRC 811, 814-15 (Oct. 2004) (ALJ), the judge determined that “in harmony with the dictionary definitions, i.e., the common meanings of the terms at issue, the entire route traveled by the trucks is to be considered a roadway.” Id. Under the facts in that case, the route consisted of “traveling from the two-way road, along a ramp and scale in the same line, and continuing from the scale in the same direct line down the next portion of the ramp back to the road.” Id. (emphasis in original).

In Carder, 27 FMSHRC 839, 858 (Nov. 2005) (ALJ) an operator was cited for violating 30 C.F.R. § 56.9300 because a scale lacked guardrails or berms. The citation was vacated because the operator did not have notice that guardrails would be required for the scale.. Id. However, the scale was found to fit within the scope of the safety standard. Id. The scale was a roadway with a drop-off of sufficient grade or depth that could cause a truck to overturn or endanger persons in the truck. Id.

In Knife River Corporation, 32 FMSHRC 912, 914 (July 2010) (ALJ), Judge Pricilla Rae relied on the dictionary definition of “roadway,” and rejected the notion that scales were not a roadway and were merely “equipment” that must be driven over at 5 mph. Id. The scales were an essential part of the “commercial trek from the pit to the consumer.” Id. The common meaning of the term roadway encompassed the entire route traveled by the trucks, including the scales. Id. The judge determined that the language in the safety standard was sufficiently clear to be enforceable. Id.

I find that the stipulations establish that the scale at Crusher #1 is part of the roadway. This scale was an essential part of the “commercial trek from the pit to the consumer.” Knife River Corp., at 914. The scale at McMurry’s Crusher #1 mine is not merely a piece of stand-alone equipment; it is undisputed that the scale is regularly used to weigh the product mined and processed by McMurry as it is leaving the mine to be delivered to purchasers. Jt. Stip. 24. The entire route traveled by the trucks is to be considered a roadway. See APAC-Mississippi, Inc., 26 FMSHRC at 814. The route at Crusher #1 consists of traveling onto the scale, stopping at the stoplight for weighing, then continuing onto the main roads to leave the mine for delivery. See Id. at 815; Jt. Ex.2-4; Jt. Stip. 18-20. Consequently, I find that the scale at issue in this case is part of the roadway.

B. The Second Element

The second element is whether the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment. In Lakeview Rock Products, the administrative law judge determined that rub-rails, similar to those installed on the scale at McMurry’s Crusher #1, would prevent a vehicle from overturning and harming its occupants and vacated the citation on that ground. 33 FMSHRC 1538, 1545 (June 2011). The Commission explained that the ALJ should have first considered whether the drop-off was sufficient to cause a vehicle to overturn before determining whether the rub-rails would function to keep a vehicle on the roadway. The Commission held that this second element must be considered independently from an analysis of the adequacy of rub-rails. Thus, when analyzing this element I must consider whether the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment without taking into consideration the presence of the rub-rails.

In Knife River Corp., the judge vacated the citation because the Secretary did not meet the burden of showing that this second element was met: that the depth and grade of the drop-off were such that a hazard existed. 32 FMSHRC at 915. The Secretary had alleged the scales were 36 inches at their highest point while the operator argued they were only 26.5 inches. Neither party provided any “expert’s statement, case law, or any other authoritative guidance as to how or why a 26.5 to 30 inch elevation for some undetermined distance on the scales is of sufficient depth as to pose a danger of a vehicle overturning or endangering persons in equipment.” Id.

McMurry argues in its Motion for Summary Decision that the cited standard does not require berms or guardrails on its scale because the standard is not intended for a scale that is equipped with rub-rails. McMurry Mot. at 7-12. However, the Commission has clearly stated that a judge must first analyze this second element before considering whether rub-rails would have any effect.

The parties have stipulated that the scale at the Crusher #1 ranged in height between 35 and 40 inches. Jt. Stip.16. Thus, the critical question in this matter is whether this drop-off was “of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment.” Lakeview Rock Products, 2011 WL 6740384 at 4.

The parties have not stipulated that 35 to 40 inches meets the criteria of the second element set forth in Lakeview Rock Products. It is clear that McMurry has directly contested the Secretary’s assertion that this drop-off poses a hazard. McMurry Mot.16. Because there exists an unresolved dispute about this fact, the proper course is to proceed to an evidentiary hearing to determine whether the drop-off at the scale of Crusher #1 was of a sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment, without considering the effect of the rub-rails. As a consequence, there is a “genuine issue” as to “material fact” on this issue.

29 C.F.R. § 2700.67(b)(1).

C. The Third Element

The third element for consideration is whether the scale was equipped with berms or guardrails that were at least mid-axle height of the largest self-propelled mobile equipment that usually travels the roadway. Lakeview Rock Products, 2011 WL 6740384 at 3. In this case, the rub-rails were only nine inches in height. Jt. Stip.12. The parties have stipulated that semi-tractors like the one pictured in Joint Exhibit 4 are the largest, self-propelled equipment that travels the subject scale. Jt. Ex. 4; Jt. Stip. 18-20. Joint Exhibit 4 clearly shows that the rub-rails installed are far short of the required mid-axle height.

Guardrails are only required by the safety standard if the second element discussed above is satisfied. If the Secretary establishes at an evidentiary hearing that the drop-off is of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment, then the evidence in the joint stipulations has established this third element.

D. Fair Notice of the Requirements of Safety Standard

In making its argument that it was not provided with fair notice that the cited standard applied to the subject truck scale, McMurry relied on evidence that it attached to its motion. The Secretary disputes most of this evidence. The Secretary disputes McMurry’s assertion that during an August 2007 inspection of Crusher #3, MSHA determined that a scale equipped with a similar rub-rail did not violate the safety standard. Sec’y Opposition at 3-4. The Secretary also disagrees with the conclusions McMurry draws from the photograph it attached to its motion as Exhibit F. She notes that the photograph is not authenticated in the declaration of J. David Hornbeck or in any other document. The Secretary questions what the photograph depicts because it does not look like a rub-rail or any other similar railing. Id.

I agree with Judge Rae’s conclusion in Knife River Corp., that the subject safety standard is “sufficiently clear and the language is meant to apply to a variety of circumstances.” 32 FMSHRC at 915. In addition, the Secretary’s PPL, dated August 26, 2010, states that the Secretary interprets the safety standard to include elevated truck scales. Lack of fair notice of the applicability of a safety standard is an affirmative defense. McMurry bears the burden of proof on this issue. Determining whether an operator lacked fair notice depends on the specific facts at issue. The mere fact that an operator has not been previously cited for a violation of the standard is not sufficient. I find that there appear to be genuine disputes of material fact with respect to this notice issue and that summary decision cannot be granted.

IV. ORDER

For the reasons set forth above, the Secretary’s motion is GRANTED IN PART. I find that the scale at Crusher #1 was a roadway as that term is used in the safety standard. I also find that, if the Secretary is able to prove that the scale at Crusher #1 had a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons or equipment, then McMurry violated the safety standard because the scale was not equipped with a berm or guardrail that was at least mid-axle height of the largest self-propelled mobile equipment that usually travels the roadway. There are genuine issues of material fact as to whether the drop-off created a hazard of overturning or endangered persons in equipment. McMurry’s motion for summary decision is DENIED.

Unless the parties settle this case or reach further stipulations, an evidentiary hearing will be necessary on the second element set forth in Lakeview Rock Products, as discussed above, and on the issue whether the Secretary provided fair notice that the safety standard applies to truck scales.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Pamela Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Joshua Schultz, Esq., Law Office of Adele Abrams, 4740 Corridor Place, Suite D, Beltsville, MD 20705

RWM