FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 16, 2011

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

            This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), and involves a citation alleging that Lakeview Rock Products, Inc. (“Lakeview”), violated 30 C.F.R. § 56.9300. Following the submission of cross motions for summary decision on stipulated facts, Administrative Law Judge Kenneth Andrews granted Lakeview’s motion and vacated the citation. 31 FMSHRC __, slip op. at 10, No. WEST 2010-1856-RM (June 22, 2011) (ALJ). The Commission thereafter granted the Secretary of Labor’s (“the Secretary”) petition for discretionary review (“PDR”). For the reasons that follow, we vacate the judge’s decision and remand this proceeding to the judge.

I.

Factual and Procedural Background

            The Secretary and Lakeview stipulated through their counsel to the following undisputed material facts: On September 8, 2010, MSHA inspector Mike Tromble (“Inspector”) issued to Lakeview Citation No. 6580393, alleging that three pairs of scales that are located at the mine did not comply with 30 C.F.R. § 56.9300(b). Jt. Ex. 1. All six of Lakeview’s scales are elevated to a height of 31 to 54 inches above ground level, in order for Lakeview employees to perform annual maintenance and calibration work on each of the scales. All the scales have eight-inch high steel “rub rails” running the length of the scale. The wheelbases of the trucks that use the scales 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.

The parties filed cross-motions for summary decision below. In his decision, the judge determined that MSHA’s slide presentation on truck scales is entitled to little, if any, probative value in the instant determination, since it did not consider the effect of eight-inch rub rails. Slip op. at 7-8. While accepting the guidance of the prior ALJ decisions that scales are a part of a mine’s roadways, the judge opined that those decisions are distinguishable from the instant case because each of the prior decisions involved scales with no berms, guardrails or guarding of any kind. Id. at 8. The judge went on to conclude that the Secretary failed to establish how and/or under what circumstances a truck’s front tire would be able to drive up onto and over or through the eight-inch high rub rail installed on the scales. Id. at 9. Therefore, the judge concluded that the Secretary had not carried her burden of proof and failed to establish by a preponderance of the evidence that Lakeview’s scales pose a danger of a vehicle overturning or endangering persons in equipment. Id. at 9-10. The judge denied the Secretary’s Motion for Summary Decision, granted Lakeview’s Motion for Summary Decision, and vacated Citation No. 6580393. Id. at 10.

II.

Disposition

In her PDR, the Secretary argues that the judge erred in determining that elevated truck scales provided with eight-inch high rub rails are not subject to 30 C.F.R. § 56.9300(b)’s requirement that berms or guardrails at mid-axle height be provided where there is a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in the vehicle. She contends that her Program Policy Letter P10-IV-1 (“PPL”) clearly states that rub rails on elevated truck scales are not a substitute for mandated guardrails. The Secretary maintains that the adequacy of guarding against overturning and injury is properly evaluated only after it is first determined that a drop-off of sufficient grade or height may pose a danger of injury to miners. The Secretary asserts that she has established in her motion for summary decision that the Lakeview truck scales have a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. In support of her position, the Secretary provided the declaration of Terence M. Taylor, a Senior Civil Engineer with MSHA’s Directorate of Technical Support, who performed an engineering analysis using the particular facts in this case and concluded that a truck would likely overturn, or its axle and undercarriage would crash down upon the decking, if it traveled over the edge of the scales, and that this would likely endanger the truck’s occupants. S. Ex. 3. Moreover, the Secretary states that Lakeview’s position was not that a truck traveling off the edge of the scale would not overturn or result in injury to the truck’s occupants, but that the rub rails were in effect an adequate substitute for the guardrails required by the standard because they rendered such an occurrence unlikely. Therefore, the Secretary maintains that the evidence presented by her was essentially uncontested, and if it were disputed, summary decision would have been improper.

In its Memorandum in Opposition to the Secretary’s Motion for Summary Decision, Lakeview asserted that the Secretary failed to meet her burden of proof by a preponderance of evidence that a drop-off exists of sufficient grade or depth to cause a vehicle to overturn. Lakeview argued that the Secretary lacked any expert biomechanical analysis showing the potential effects on the occupants of trucks driving off the scales. Moreover, Lakeview purported there was no evidence that the existing rub rails will not prevent all trucks traveling slowly over the scales from driving off of them. Finally, Lakeview questioned the expertise and experience of the Secretary’s engineers, stating that they were not fully qualified to testify about biomechanics and injuries to individuals, or the adequacy of the rub rails on Lakeview’s scales.

Summary decisions are governed by Commission Procedural Rule 67, which provides that:

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 Commission “has long recognized that[] ‘[s]ummary decision is an extraordinary procedure,’” and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’” Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

In addition, appellate review of summary judgment decisions issued pursuant to Federal Rule 56 is de novo, in that the reviewing court applies the same Rule 56(c) standard as the trial court. 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2716, at 273-74 (3d ed. 1998). Moreover, the Supreme Court has stated that “[w]e look at the record on summary judgment in the light most favorable to . . . the party opposing the motion,” and that “the inferences to be drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.” Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Consequently, the Commission has held that when it reviews a summary decision and determines that the record before the judge contained disputed material facts, the proper course is to vacate the grant of summary decision and remand the matter for an evidentiary hearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316-19 (Aug. 1995); Missouri Gravel, 3 FMSHRC at 2473.

Section 56.9300 provides in relevant part:

(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 requirements of section 56.9300, applied to the facts of this case, can be broken down into three elements: (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.

In its Memorandum in Opposition to Respondent’s Motion for Summary Decision, Lakeview conceded the first element of section 56.9300 – that the scales are part of a roadway – and conceded that its rails are not at least mid-axle height, as required under the third element of section 56.9300. Pet. Memo. in Opp. at 2. Moreover, the judge accepted the findings, made by other administrative law judges in prior decisions, that scales are part of a mine’s roadways. Slip op. at 8. In their Joint Statement of Undisputed Material Facts, the parties stipulated that the mid-axle height of the trucks using Lakeview’s scales range from 20 to 24 inches, and that all of Lakeview’s scales have eight-inch high steel “rub rails.” Id. at 3-4. Therefore, the judge’s decision should have properly turned on element (2), namely, whether each scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. However, the judge failed to make this determination and instead concluded that the presence of the rub rails prevented a vehicle from overturning and harming it or its occupants.

Where the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989).

We conclude that the judge erred by failing to interpret the regulatory language according to its plain meaning. By the standard’s plain terms, the judge must first decide whether “a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” Only if this element is established may the judge then consider any existing berms or guardrails. Here, the judge erred by considering the presence of the rub rails before deciding whether the scales’ drop-off fits within the scope of the safety standard. In fact, despite the Secretary’s proffered evidence, the judge never determined whether each scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.

While the operator challenged the expertise of the Secretary’s engineers, the judge must address whether the operator disputed the Secretary’s evidence that a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. If the record before the judge contains an unresolved dispute concerning whether a drop-off ranging from 31.5 to 54 inches is of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment, the proper course is to proceed to an evidentiary hearing, allowing both sides to submit additional evidence on element (2) of section 56.9300. If, on the other hand, the operator 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, the judge should deny Lakeview’s Motion for Summary Decision and grant the Secretary’s Motion for Summary Decision.

III.

Conclusion

For the foregoing reasons, we vacate the judge’s decision granting Lakeview’s Motion for Summary Decision and remand this case for a determination, in accordance with this decision, of whether the record contains an unresolved dispute of material fact. 

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/Michael G. Young

                                                                                    Michael G. Young, Commissioner

                                                                                    /s/ Robert F. Cohen, Jr.

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    /s/ Patrick K. Nakamura                                                                              

                                                                                     Patrick K. Nakamura, Commissioner

Commissioner Duffy, dissenting:

            I would affirm the judge’s decision in result and vacate the citation on the grounds that 30 C.F.R. § 56.9300 does not apply to the three pairs of scales cited by the inspector for lack of berms or guardrails. My colleagues, the judge, the Secretary, and – at least for purposes of the cross motions for summary decision below – the operator, have proceeded from the premise that the scales in question are part of the roadways at the subject mine, citing MSHA’s Program Policy Letter P10-IV-1 and several unreviewed decisions by Commission administrative law judges as authority. I fundamentally reject that premise.

            “Roadway” is not defined in 30 C.F.R. Part 56, but it is generally defined as “a road, especially the part vehicles travel over.” American Heritage College Dictionary 1201 (4th ed. 2002). In my view, the plain meaning of the term “roadway” does not encompass the scales at issue here. The entire context of 30 C.F.R. § 56.9300 contemplates travelways or haulage routes – in a word, “roads.” It does not extend to adjunctive facilities, such as scales. Moreover, I do not consider the edge of a truck scale a “bank” to which the standard refers. Scales do not accommodate two-way traffic, a circumstance that makes the installation of berms or guardrails necessary on the “banks” of “roadways.”

            In my opinion, any potential hazards occasioned by a truck’s movement on and off a scale is otherwise addressed in 30 C.F.R. Subpart H:

            Operators of self-propelled mobile equipment shall maintain control of the equipment while it is in motion. Operating speeds shall be consistent with conditions of roadways, tracks, grades, visibility, and traffic, and the type of equipment used.

30 C.F.R. § 56.9101.

            Accordingly, I would vacate the citation because the standard is inapplicable to the facilities cited.

                                                                                    /s/Michael F. Duffy

                                                                                    Michael F. Duffy, Commissioner

Distribution:

Kevin R. Watkins, Esq.

Lakeview Rock Products, Inc.

P.O. Box 540700

900 North Redwood Rd.

North Salt Lake, UT 84054-0700

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Kenneth Andrews

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220