MSHA ENFORCEMENT ALERT

 

        A potentially costly FMSHRC ruling was handed down by Judge Weisberger of The OFFICE OF ADMINISTRATIVE LAW JUDGES on October 07, 2004.  The finding was relative to Standard 56.9300(a) on  the berming of roadways.

        The problem is not the ruling itself as it was carefully worded by the judge so that it did not require all scales to be bermed (all forms of "Berm" for this information mean a physical structure to prevent trucks from falling from the scale and overturning). The ruling was made to avoid possible injuries from potentially hazardous scale installations. The Industry's Operators and their crews are adept at recognizing hazards and protecting our people from them and will certainly examine their scales and  associated area for injury potential. The Mining Industry's injury record in recent history is proof of that. Further proof is in the excellent reports of success through $afe Production given by firms and seen on this website.

        The problem, as usual, is that there is no published National MSHA Enforcement Policy concerning berms on roadways themselves, much less the scale area. Already uneven enforcement efforts have been encountered which have placed Operators in a position of either making an "ineffective repair" or losing production while he fights an inspector's threat of a Withdrawal Order for his scales. Not making the repairs to abate as directed by the Inspector would entail weeks of financial loss while the problem was being pursued through the Agency structure or through litigation. Most experienced business people would make the estimated 2-5 thousand dollar "abatement" to cut the immediate production losses. Their efforts would not be for safety, but for compliance with the demands of a "rogue inspector" who is inventing enforcement policy on the spot. There is no way that this could be considered equitable or "Reasonable" treatment  for American Industry by a Federal Agency. It is a true "Catch 22".

        The purpose of this article is to alert Operators to be wary of uneven enforcement attempts by individual inspectors, regional supervisors and district managers. The matter will be further researched and additional comments, and advice from Industry Managers will be published on this website within the next ten days. An article on this "Ruling" by Adele Abrams, Esq. will appear in the next issue of Rock Products Magazine.

11/23/04  $afepro’s analysis is that we look at the scales and determine, based on our (the operators') experience and knowledge of the situation, as to whether or not a restraint would be needed. It would be a relatively costly job to do and shouldn’t be done unless needed to prevent trucks from overturning. The Judge was careful to word the decision so that it didn’t read that all needed “berms or restraints”. It should be determined by the individual site with a realistic view toward safeness of the scale area. 

             Early action by the Operator can forestall the uneven enforcement by the Agency that is prevalent over the country. Document your actions and be prepared to have the Agency Representative defend his position. Proof is his burden!  

                                                            Judge Weisberger's Ruling

This comment comes from a West Coast Safety Officer, all highlights are $afepro's.

"In speaking with other safety colleagues from other companies, the reaction by some to this decision (Judge Wiesberger's) was that all operators should immediately erect guardrails, berms or other protective devices on ALL truck scales before MSHA had the opportunity to cite them or issue withdrawal orders on the scales.   However, a calmer and more reasonable approach must be adopted in this regard. 

 What we have initiated is another look at our truck scales to determine if a hazard exists.  If we determine that, due to the configuration of the scale (height of scale from surrounding ground, existing guard rails or other protective devices, location of scale to mine property, width of scale, etc.), the manner in which it is used (speed of trucks traveling over it, size of trucks, etc.), the type and nature of approach ramps and so forth, that a hazard exists for a truck overturning or otherwise endangering persons or equipment then those scales will be modified to eliminate the subject hazard(s).

 Each condition, each scale must be evaluated on its own merits or lack thereof.  Some of our scales will be modified to be safer, some will not be touched because they afford proper protection to persons and equipment – it’s as simple as that.

 I would caution operators from making unnecessary modifications to their scales.  Using their own “safety judgment” and sense, I am certain that they will be able to evaluate which scales need some additional attention and which are fine as they are.  In this case, if you eliminate the hazard, you avoid the citation."