This is an example of the timely articles in the Aug. 2011 Sharpe’s Point


A recent court decision represents the second time in under a year MSHA has failed to convince a judge to uphold its enforcement of the berm standard in Metal/Non-Metal (M/NM) on weigh scales at aggregate mines sites.

The latest setback came June 22 when Administrative Law Judge (ALJ) Kenneth R. Andrews threw out a citation written last September against Lakeview Rock Products’ sand & gravel operation in Salt Lake City.  The citation alleged a violation of 56.9300(b), written because rub rails on Lakeview’s weigh scales were nowhere near the required mid-axle height of trucks that drove over them.  The ticket was assessed at $196.

The decision came after a similar decision last year when another ALJ ruled MSHA had failed to meet its burden of proving that nine-inch rub rails on scales at a Knife River Corp. site in Oregon were of a depth and/or grade that would trigger application of the standard.  Knife River continues to make a case no hazard exists when scales are outfitted with adequate rub rails.  The company backs up its assertion with an engineering study.

To prevent trucks from going off a road, the standard requires berms to be built at least to mid-axle height of the largest truck on the roadway.  MSHA has contended that scales are roadways and thus must have mid-axle high side guards.  In the Lakeview case, the inspector alleged that pairs of scales serving three pits at the mine were out of compliance.  His reasoning was that the eight-inch height of the rub rails is only one-third the mid-axle height of the largest trucks running over the scales.  The scales ranged from 31˝ to 38 inches above ground level, except for those at the Upper Pit, which were elevated 54 inches. 

The inspector argued that if a truck wheel went off the edge, the vehicle would either overturn or crash, or an axle would smash into the edge of the scale, risking injury by jarring the driver.  The Agency also offered testimony from an MSHA senior civil engineer.  He asserted that a truck with a 24-inch axle height and a vertical center of gravity of eight feet would overturn if it drove over the edge of the two Upper Pit scales.  

Andrews noted that, although the engineer had prepared over 560 reports to support his position, his “Declaration did not contain any report on either his experience or his research of a vehicle being driven over or through a rub rail eight inches in height.”

In contrast, Lakeview testified the risk is de minimis.  All trucks come to a complete stop before mounting the scale, then slowly roll, coast or idle onto the scales to be weighed, where they stop again.  They may stop a third time as they come off the scale and enter the roadway, Lakeview said. 

However, Andrews was most persuaded by two videos the operator introduced purporting to show what would happen if the front wheel of a truck struck the rail.  The videos, taken by Lakeview personnel, showed truck drivers intentionally driving a front wheel into a rub rail from two different distances.  The rails effectively blocked the lateral movement of the wheel, forcing it to run along the edge of the rail without breaching it.

Andrews said he accepted previous decisions in which judges have ruled scales are part of a mine’s roadways.  But, he pointed out, those cases involved unguarded scales. None-the-less, he reasoned that “a distinction must be drawn between the use of haulage roadways as opposed to the use of scale roadways.”  Differences between the two include truck speed, surface conditions and what he termed “[e]established hazards.”  Undeterred, MSHA has appealed Andrews’ decision to the Federal Mine Safety and Health Review Commission.