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Railings on Mine Scales?  This drawing is being shown by MSHA inspectors as the "enforceable" solution to abating the "phony scale railing" citation! The Media has published reports that a "nationally" known lawyer has stated that "case Law" existed relative to MSHA citing scales "for not having railings" and citing it under standard 56/57 9300 dealing with berms!" This is in error. There is "no case law" existent relative to railing scales used on mine property. The existent rulings made relative to scales were handed down by Administrative Law Judges and therefore not "binding precedent". "Binding Precedents" are set by the FMSHRC and the higher US Appellant Courts of Appeal! The FMSHRC is a panel of judges and a court superior to the ALJ court. It is only at this level or higher that "Case Law" is set. Case Law is defined as: "Legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases. Since the U.S. legal system has a common-law system, higher court decisions are binding on lower courts in cases with similar facts that raise similar issues. The concept of precedent, means to follow or adhere to previously decided cases in judging the case at bar. It means that appellate case law should be considered as binding upon lower courts." When dealing with the MS&H Act Of 1977 and the MINERS Act of 2006 the ALJ decision is not considered legal binding precedence even though MSHA tells you otherwise ! This is a "case law" precedent which cannot be changed or overturned by any MSHA inspector or his superiors! The agency is counting on you to back off when the inspector "puffs out his chest and informs you that his boss said that he was to write it and that MSHA has law backing it?" If you back down the citation will be assessed and you will have pled guilty to a supposed hazard not covered by Law that will cost you $10 - 15,000.00 to abate in addition to the cost of the fine! What are you to do? Go to court or whatever is necessary to prevent your legal and Constitutional rights from being taken away from you!
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