Thanks to Jim Sharpe, Sharpe’s Point for this succinct article. $afepro is in absolute agreement with this analysis!



After serious money has been spent to abate MSHA citations for allegedly inadequate roll-off protection for trucks on weigh scales at aggregate mine sites, the Agency is reconsidering its position on the matter.

Metal/Non-Metal Administrator Neil Merrifield told a group of Midwest producers and trade association executives Aug. 15 that the Agency was taking another look at its enforcement position.  Currently, MSHA applies its berm standard at 56/57.9300(b) to weigh scales, which requires a barrier up to mid-axle height of the largest truck traversing the scales.

Aggregate producers have vehemently opposed the Agency initiative, which began some two years ago, even though scales at many mines have remained unchanged for decades and federal inspectors have historically shown no inclination to require changes.  Many scales already come equipped with so-called rub rails, which are designed to alert drivers of the slow-moving trucks when the vehicles stray off-course.  Operators have argued this design is sufficient, and have challenged the Agency to produce accident data demonstrating other- wise.  No substantive data have been offered.

In an effort to provide guidance, the Agency released a PowerPoint presentation in October 2009 and followed up with a Program Policy Letter (PPL) a year ago.  The PPL set a so-called 16-inch rule whereby scales with a drop-off of 16 inches or less required rub rails at least six inches high.  For steeper drop-offs, one option was barriers mid-axle high.  Neither the PowerPoint nor the PPL did much to stem the controversy.

Inevitably, the matter spilled into the courts.  Some operators sought legal redress despite a handful of earlier decisions that had gone MSHA’s way.  In two recent cases, judges have granted producers relief.  Last year, Knife River Corp. won a case involving a quarry in Oregon, and this June a judge ruled in favor of Utah-based Lakeview Rock Products, Inc.  Knife River touts an engineering study to back up its claim that rub rails render safety concerns de minimis.  Lakeview took a different approach: it prepared videos demonstrating the effectiveness of barriers at its sand & gravel operation. 

Judges have ruled MSHA may enforce its berm standard on weigh scales.  Moreover, if scales are unguarded and a potential drop-off hazard exists, a citation is likely to stand.  However, the situation is different if rub rails are present, as was so at the Knife River and Lakeview mines.  In the latter litigation, Judge Kenneth R. Andrews reasoned a distinction had to be drawn between haulage roadways and scale roadways because of differences between the two regarding truck speed, surface conditions and what he termed “established hazards.” 

Meanwhile, since MSHA has begun its enforcement campaign, operators have been forced to redirect financial resources already strained by the economic downturn into correcting what they see as a non-problem. After claiming his employer has spent about $250,000 alone, a Midwest safety official remarked bitterly, “There’s millions of dollars that were spent on this thing, for nothing.”

As a result, Merrifield’s statement that MSHA was having second thoughts was not greeted especially warmly at the August meeting.  A state executive stated the obvious by reportedly telling Merrifield it would have been better had MSHA considered its position more carefully at the outset before forcing operators to commit funds. A disgruntled MSHA supervisor remarked that affected operators might have a legal claim against the government.

Asked how the matter ever got started in the first place, two Agency sources laid the blame on MSHA’s Office of Accountability (OA). OA was formed in 2007 to assure that recommendations from internal review reports following major accidents were implemented. Its role has been expanded to improve compliance by the Agency’s inspectorate with all MSHA policies, practices and procedures.  An insider in a position to know indicated someone within MSHA was severely chastened for pushing the Agency’s enforcement position on rub rails.  He predicted the PPL would just quietly be forgotten.

Maybe. If MSHA is separating itself from the PPL, then why has the Agency chosen to appeal the Lakeview decision? Our source had no answer. (Highlite by $afepro)