Lakeview Rock Products, Inc.

Plain-English summary

MSHA cited Lakeview Rock Products because its elevated truck scales had eight-inch rub rails rather than berms or guardrails reaching the 20-to-24-inch mid-axle height of trucks using them. An ALJ granted summary decision to Lakeview and vacated the citation after finding that the Secretary had not shown how trucks could cross the rub rails. The Commission held that the judge applied the standard in the wrong sequence: he first had to decide whether each 31.5-to-54-inch drop-off could overturn a vehicle or endanger occupants, and only then consider the adequacy of existing rails. It vacated the ruling and directed the judge either to hold a hearing if that threshold fact was genuinely disputed or grant summary decision to the Secretary if it was not. Commissioner Michael F. Duffy dissented, concluding that truck scales are not roadways covered by the standard.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9300
• Outcome: Lakeview's summary decision was vacated and the case was remanded for a threshold drop-off determination.
• Key point: Under the roadway-guarding standard, the danger created by the drop-off must be decided before considering whether existing rub rails provide adequate protection.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 16, 2011

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v.

LAKEVIEW ROCK PRODUCTS, INC. 

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Docket No. WEST 2010-1856-RM

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., 25th 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