Knife River Corporation, Northwest

Plain-English summary

MSHA cited Knife River because the rub rails on an elevated truck scale were below the mid-axle guardrail height required for mine roadways, then issued a failure-to-abate order. Judge Thomas P. McCarthy held that the portable weighing scale was equipment, not a roadway or part of the mine's roadways under 30 C.F.R. § 56.9300. He also found that MSHA did not prove the scale's drop-off could overturn a truck or endanger occupants under the actual low-speed conditions. The Judge credited Knife River's vehicle-dynamics expert over MSHA's analysis, which used vehicle positions he found unrealistic. He vacated both the citation and the failure-to-abate order, adding that concrete barriers had lawfully removed the scale from service in any event.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9300(b)
• Outcome: The guardrail citation and related failure-to-abate order were vacated.
• Key point: A truck scale is not automatically a roadway, and MSHA must prove that the actual drop-off and operating conditions can overturn a vehicle or endanger its occupants.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

May 10, 2012

KNIFE RIVER CORPORATION,

NORTHWEST,

Contestant

v. 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

KNIFE RIVER CORPORATION,

NORTHWEST,

Respondent

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CONTEST PROCEEDINGS

Docket No. WEST 2011-486-RM

Citation No. 8599811; 12/20/2010

Docket No. WEST 2011-512-RM

Order No. 8599817; 01/13/2011

CIVIL PENALTY PROCEEDING

Docket No. WEST 2011-666

A.C. No. 35-03321-246378

Mine: MBI Portable Crusher No. 1

DECISION AND ORDER

Appearances:              Adele Abrams, Esq., Law Office of Adele Abrams P.C., Beltsville,
Maryland, for Contestant

Patricia Drummond, Esq., U.S. Department of Labor, Office of the
Solicitor, Seattle, Washington, for Respondent

Before:            Judge McCarthy

These cases are before me upon two notices of contest and a related petition for
assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). On December 20, 2010, Citation No. 8599811 was issued to the
Contestant charging a violation of 30 C.F.R. § 56.9300(b) because the “truck scales roadway had
a guardrail that was not at least mid-axle height of the largest piece of equipment to travel the
roadway.” On January 13, 2011, Order No. 8599817 was issued charging that the Contestant
violated section 104(b) of the Mine Act by failing to abate the violation alleged in Citation No.
8599811.

A hearing was held in Portland, Oregon, after unsuccessful settlement negotiations.
Thereafter, post-hearing briefs were filed. The primary issues presented are whether Respondent
violated 30 C.F.R. § 56.9300(b), as alleged in Citation No. 8599811, and whether Respondent
failed to abate that citation under section 104(b), as alleged in Order No. 8599817.

As this decision was being drafted, the Commission issued its decision in Lakeview Rock
Products, Inc., 33 FMSHRC 2985 (Dec. 2011), which set forth an analytic framework for
determining whether the requirements of 30 C.F. R. 56.9300 have been met in the context of
truck scales. Applying the analytic framework set forth in Lakeview, I find that the Paetsch pit
truck scale at issue is not a roadway or part of the mine’s roadways. I further find that under the
facts and circumstances of this case, the Secretary has failed to prove by a preponderance of the
evidence that the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment.

Accordingly, Citation No. 8599811 is vacated. Since I find no violation, the failure to
abate Order No. 8599817 is also vacated. Moreover, even assuming a violation, I find that Knife
River lawfully abated the citation by removing the truck scale from service.

On the entire record, including my observation of the demeanor of the witnesses,

and
after considering the post-hearing briefs, I make the following: 

II. FINDINGS OF FACT

A. Background

Knife River Corporation, Northwest, operates a portable crusher, known as Portable
Crusher No. 1. During the inspection at issue on December 20, 2010, Portable Crusher No. 1
was located at a crushed stone operation known as the Paetsch pit in Lin County, Oregon. (Tr.
16, 34.)

Like the crusher, the truck scale at issue is also portable, and was transported to the
Paetsch pit from another site north of Portland, Oregon about the spring of 2005. It has been
operated in essentially the same condition since its installation at that time. (Tr. 272.)

The truck scale is 80-feet long and approximately 11-feet wide. (Tr. 39, 278.) It is
elevated above ground to provide clearance for operation and to allow access for cleaning and
maintenance. (Tr. 264, 279.) The elevation varies slightly along the length of the scale. The
highest elevation of the scale is 41 inches off the ground. (Tr. 36, 91.) The scale has two, 10-inch “rub rails,” which extend along both sides of the scale and along the sides of the ramp that
lead onto and off of the scale. (Tr. 36.)

A small section of the right rub rail along the approach
to the scale is bent downward and outward as a result of damage caused several years ago when a
large, front loader drove onto the rail. (Tr. 38, 274.)

Drivers wishing to access the scale must exit the main roadway at the Paetsch pit and use
a side access road that leads to the weighing equipment. The vehicles on the access road are
restricted to 15 miles per hour (15 mph). (Tr. 43; Sec’y Ex. 2.) Upon approach, a truck driver
can choose to enter the one-way scale, however, there is a finished area around the scale, which
may permit a driver to circumvent the scale entirely.

Access to the scale is controlled by red and green lights, which indicate when a driver
must stop or may proceed across the scale. (Tr. 248.) Typically, trucks are driven at two to three
mph on and off the scale. Truck speed is limited by multiple stops, which are required during the
weighing process. Truck speed is strictly enforced for driver safety, and to protect the scale from
damage. (Tr. 247, 250, 269-270.) The driver must come to a complete stop when exiting the
scale to obtain a weight ticket from the scale operator. (Tr. 248.)

Since installation, an estimated 67,661 truck loads have crossed the scale. (Tr. 269, 300;
K.R. Ex. 5.) Despite such heavy usage, there has been no reported incident of any truck over
traveling the edge of the scale, or overturning upon entering, traveling, or exiting the scale. (Tr.
133, 249-250, 270, 301.)

Between 2005 and August 2010, MSHA inspected the Paetsch pit ten times. (K.R. Ex.
23.) No citations were issued, nor was Knife River told that the scale was unsafe or in violation
of 30 C.F.R. § 56.9300(b). (Tr. 55-56.)

On August 26, 2010, MSHA issued Program Policy Letter (PPL) No. P10-IV-1 in an
attempt to clarify that elevated truck scales at metal and nonmetal mines required guardrails
under 30 C.F.R. § 56.9300, and to provide guidance on design parameters for guardrails. That
PPL was effective on issuance and expired on March 31, 2012. (Sec’y Ex. 6.) The PPL
provides:

Policy

Elevated truck scales are considered elevated roadways if a drop-off exists of
sufficient grade or depth that could cause a truck to overturn or endanger persons
in the truck. Consequently, under 30 C.F.R. § 56.9300, elevated scales need to be
equipped with either berms or guardrails up to mid-axle height of the largest
vehicle driving over the scale to restrain the vehicle from driving off the elevated
surface.

Guidance on guardrails and design parameters for guardrails.

Curb, Rub Rail, or Guardrail

All elevated scales should be equipped with a curb, rub rail, berm, or guardrail,
depending upon its elevation level. For scales having a driving surface elevated 16
inches

or less above the ground, the scale should, at a minimum, be equipped
with either a substantial curb or rub rail at least 6 inches high. If the height from
the driving surface on the scale to the lowest ground surface adjacent to the scale
is greater than 16 inches, either the drop-off hazard can be mitigated by raising the
ground

to decrease the distance to less than 16 inches or equipping the scale with
a guardrail capable of restraining the vehicle from driving off the scale. Any
guardrail should extend to at least mid-axle height of the largest truck using the
scale.

Most truck scales are provided with a rub rail to guide the vehicle. These are
intended to provide a visible, audible, or tactile indication to the truck driver to
identify the edge of the roadway. These rails generally are not mid-axle height and
typically are not considered structurally sufficient to prevent a vehicle from
driving over or through them. Conversely, a guardrail at least mid-axle height is

intended to prevent the vehicle from driving through or over it.

Guardrail Design Parameters

When a vehicle impacts a guardrail system

, there is a transfer of energy from
the vehicle to the guardrail system. Specifically, the vehicle’s kinetic energy,
which is related to its mass and velocity, must be absorbed and deflected by the
guardrail system. There are four parameters that should be considered in designing
guardrails for a scale: the height of the rails (impact height); the speed of the
vehicle while driving onto, over, or off the scale; the loaded weight of the vehicle;
and the angle of impact. The mine operator should evaluate each of these
variables for their operation and design accordingly. There is no “one-size-fits-all”
design for guardrails on truck scales.

Guardrail Height - 30 C.F.R. § 56.9300 requires that the guardrail must be at least
mid-axle height on the largest vehicle using the scale.

Background

Two Administrative Law Judge opinions affirm MSHA’s position that elevated
truck scales fall within the guardrail or berm requirements of § 56.9300 (Secretary
of Labor v. APAC-Mississippi, Inc., 26 F.M.S.H.R.C. 811 (2004) and Secretary of
Labor v. Carder, Inc., 27 F.M.S.H.R.C. 839 (2005)). This policy letter clarifies
the Agency’s application of 30 C.F.R. § 56.9300 to elevated scales . . . .

(Sec’y Ex. 6; K.R. Ex. 16.)

Brad Breland, the field office supervisor in MSHA’s Albany, Oregon office, testified that
he discussed the PPL with field inspectors at a staff meeting shortly after it was issued. (Tr.
113.) Breland did not recall exactly what was said at the staff meeting, but recalls instructing his
inspectors to rely on their common sense when applying the PPL, which he described as a
minimum standard for the industry. (Tr. 114.)

Breland testified that prior to the instant inspection, he was aware that Knife River had
been cited for two alleged violations of 30 C.F.R. § 56.9300 at its truck scales; one at the Coffee
Lake Pond Mine on April 2, 2010, and another at the Angell Quarry on October 5, 2010. (Tr.
116.) The Coffee Lake citation was vacated by an ALJ because the Secretary failed to establish
by expert testimony or otherwise that the drop-off from the approximate 26-to-36-inch scale
elevation was of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment. 32 FMSHRC 912 (July 2010). The judge’s decision vacating the Coffee Lake
citation became a final decision of the Commission. Breland testified that he decided not to
pursue the Angell Quarry citation because the MSHA inspector was not available to testify and
MSHA had no expert testimony at that time. (Tr. 117.) When the Angell Quarry citation was
vacated, Breland sent a copy of the vacated citation and a copy of the PPL to Knife River. (Tr.
128.)

B. The Instant Inspection 

On December 20, 2010, MSHA inspector Benjamin Burns conducted an inspection at the
Paetsch pit and issued a single section 104(a) citation. Citation No. 8599811 alleges verbatim:

The truck scales roadway had a guardrail that was not at least mid axle height of
the largest piece of equipment to travel the roadway. Truck and pup tractor
trailers, and bob tailed trucks with an approx. mid axle height of 18 in. to 20 in .
travel this roadway. The existing railing measured 10 in on the east and west
ends running the length of the 90 ft. long scales. The drop off to the ground below
measured approx. 41 in. from scales deck and 51 in. from top of railing to ground.
The approach to the scales was on a downward grade. The roadway was wet at
the time of inspection. Visible rub marks were observed on both side railings. If
a person were to over travel in this area, serious head, neck and spinal injuries
could result. The company was aware of this requirement, however, they were
under the impression they were in compliance with MSHA standards.

(Sec’y Ex. 1.) Inspector Burn’s evaluation of gravity was that an injury or illness was unlikely to
occur, but could reasonably be expected to be permanently disabling. He designated negligence
as moderate. Id.

After receipt of the citation, Knife River removed the scale from service by placing
caution tape across the entrance to the scale and large concrete barriers at both ends of the scale,
which prevented any vehicles from using the scale. (Tr. 48, 59.) The Secretary presented no
evidence that the concrete barriers had been moved or that any trucks had used the scale since the
concrete barriers were put in place. (Tr. 62.) In fact, Burns credibly testified to the contrary.
Burns testified that when he returned to the Paetsch pit on January 13, 2011, he observed a
concrete barrier and caution tape placed around the approach portion of the scale. (Tr. 47, 48.)
Burns testified that the concrete blocks effectively kept trucks from entering the scale and the
barriers could only be removed with the use of chain and hoist or front-end loader. (Tr. 60.)

Nevertheless, on January 13, 2011, inspector Burns issued Order No. 8599817 alleging
that Knife River violated section 104(b) of the Mine Act by failing to abate the violation alleged
in Citation No. 8599811. That 104(b) Order alleged that “no apparent effort was made by the
operator to fix the cited condition on the scale.” (Tr. 49-51; K.R. Ex. 2.)

C. The Expert Testimony and Reports

The Secretary presented expert testimony from Terence Taylor in an effort to establish
that the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment. Taylor is employed as a senior civil engineer with MSHA’s
technical support group in Pittsburgh, Pennsylvania. (Tr. 171-172.) Taylor’s background is in
civil engineering. He does not possess any expertise regarding vehicle dynamics or
biomechanics. (Tr. 172, 207-208.) Taylor did not examine the mine site or truck scale in
question. (Tr. 208.)

With the help of a colleague, Taylor conducted analyses to determine if a tip-over hazard
existed with a scale that was 41 inches off the ground. (Tr. 80.) Taylor presented a static and
dynamic tip-over analysis. In the static analysis, the vehicle was assumed to be placed in a
position with half of the wheels on the ramp and the other half on the ground. The dynamic
analysis took into account the force of half of the vehicle falling off the scale. In both the static
and dynamic analysis, Taylor did not take account for the speed of the vehicle or the existence of
the rub rails, and he assumed that the vehicle began from a tipping point in which the vehicle
completely straddled the side of the scale with only half of the wheels on the scale. (Tr. 180-195;
Sec’y Exs. 3 and 4.)

Taylor found that there was a potential tip-over hazard if a truck had half of the wheels on
the scale and the other half on the ground. He testified about a potential scenario in which half
the wheels could be off the scale deck, such as where a driver approaching the scale, missed the
entrance such that half the wheels went onto the scale while the other half went onto adjoining
ground. (Tr. 216, 452.) Taylor posited that such a scenario was possible from alcohol
impairment, a bee in the cab, or a heart attack. (Tr. 216.)

Taylor further testified that if a vehicle drove off the edge of the scale deck and dropped
13 inches, this would provide enough momentum to cause the vehicle to overturn. (Tr. 183-184.)
Based on the conditions at the scale site and his mathematical calculations, Taylor opined that
even 21 inches of drop off was sufficient to cause a vehicle to overturn and cause injury to the
occupant of the vehicle. (Tr. 196). Taylor’s analysis did not take into consideration the slow
speeds at which vehicles must approach the scale, or the presence of the 10-inch rub rails. (Tr.
212-213.)

Knife River presented Dr. Dirk Smith as its expert witness. Dr. Smith has a doctorate
degree in mechanical engineering. His area of expertise is in vehicle movement and dynamics.
(Tr. 366.) Unlike Taylor, Dr. Smith visited the mine site and examined the configuration of the
truck scale at issue. (Tr. 374.) Dr. Smith proffered testimony and a report regarding the potential
of a vehicle, traveling at the speeds required on the truck scale, to travel over the rub rails,
continue over the scale deck, and tip over or endanger occupants. (See generally Tr. 373-424.)

In preparation for trial, Dr. Smith ran a series of simulations using assumptions about
vehicle speed and maximum turning angles. In some cases, his simulation was based on twice
the speeds and angles that realistically could be expected based on the history of trucks passing
over the Paetsch pit truck scale. (Tr. 398; K.R. Ex. 6-13.) The simulations used two different
vehicles, a dump truck and a tractor trailer. (Tr. 375.) The simulations assumed that a driver
would react in one second and steer back towards the center of the scale if contact was made with
the rub rails. (Tr. 428, 429.) Dr. Smith admitted that his simulation program assumed that rub
rail strength was infinite. (Tr. 429, 430.)

In his critique of Taylor’s findings, Dr. Smith found flaws in the methodology used to
conclude that a vehicle could overturn on the truck scale. In his report, Dr. Smith found it was
unrealistic to assume that a truck could ever obtain a position where either half of the wheels
were on the scale and the other half were on the ground, as set forth in Taylor’s static tip-over
analysis, or half of the wheels were on the scale and the other half were suspended in air, as set
forth in Taylor’s dynamic tip-over analysis. (K.R. Ex. 3, pp. 4-5.) Dr. Smith testified that the
undercarriage of the truck would prevent a truck from driving up the scale with two wheels on
the scale and the other two on the ground, as Taylor had described. (Tr. 403.) Similarly, if a
truck driving onto the scale were to travel over the rub rail, Dr. Smith opined that only one wheel
could go over the side. Even without accounting for intermittent stops, Dr. Smith testified that
the slow speed at which trucks travel across the scale did not provide enough forward momentum
to permit a second wheel to travel over the edge. (Tr. 405.) Instead, a corner of the truck would
drop and catch on the truck’s undercarriage. At worse, this would cause some jostling to
occupants, but be absorbed by the truck’s suspension features. Dr. Smith testified that trucks,
like the ones used at Knife River, usually possess shock-absorbing seating to ameliorate
discomfort caused when traveling on rough and uneven terrain. In addition, he testified that seat
belts would restrain the truck’s occupants, and any impact from one wheel traveling over the side
of the scale and catching on the undercarriage would be be mitigated. (Tr. 407.)    

Dr. Smith concluded that “basically the probability is zero . . . of a truck going over the
rub rails and then causing – having an accident with the data that we have.” (Tr. 401). To date,
Dr. Smith’s opinion is supported by evidence that there have been no reported incidents of a
vehicle over traveling the edge of any elevated scale, much less one with rub rails, at any location
in the United States. (Tr. 70, 133, 204, 207.)

III. DISPOSITION AND ANALYSIS

The Secretary contends that all truck scales are considered part of a mine’s roadways.
Therefore, she argues that they are subject 30 C.F.R. § 56.9300, which states 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.  

The Secretary further argues that Taylor’s static and dynamic tip-over analysis and
endangerment without tip-over determination established that a drop-off exists of sufficient grade
or depth to cause a vehicle to overturn or endanger persons in equipment. Since the scales did
not have guardrails of at least mid-axle height of the largest self-propelled mobile equipment to
travel them, she argues that a violation of the applicable standard has been established.

Knife River contends that 30 C.F.R. § 56.9300 does not apply because truck scales are
not a “roadway” as the term is commonly understood. (K.R. Br. at 6.) Even if 30 C.F.R. §
56.9300 applies to truck scales, Knife River argues that the rub rails sufficiently mitigate the risk
of a vehicle overturning. In addition, Knife River contends that the citation should be vacated
because fair notice was not given that the scale violated 30 C.F.R. § 56.9300. Id. at 22.

Lastly,
Knife River argues that MSHA’s Program Policy Letter No. P10-IV-1 cannot be used to establish
an enforceable rule, absent notice and comment rulemaking. Id. at 17-22.

A.        The Lakeview Analytic Framework

The Commission has yet to decide whether a truck scale is a roadway for purposes of 30 C.F.R. § 56.9300.

In a recent decision, however, the Commission provided guidance concerning
the applicability of section 56.9300 to truck scales. Lakeview Rock Prod., Inc., 33 FMSHRC
2985 (Dec. 2011). Lakeview arose in the context of cross motions for summary decision on
stipulated facts. The administrative law judge granted Lakeview’s motion and vacated the
citation. Thereafter, the Commission majority (Commissioner Duffy dissenting), granted the
Secretary’s petition for discretionary review, vacated the judge’s decision, and remanded with
specific instructions. Id. at 2985-86.

In resolving the conflict between the parties’ respective positions in the context of well-established summary judgment principles, the Commission majority broke down the
requirements of section 56.9300 into three elements: (1) whether the scale is part of a roadway;
(2) whether the scale has a drop-off of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment; and (3) whether the scale is equipped with berms or guardrails
that are at least mid-axle height of the largest self-propelled mobile equipment which usually
travels the roadway. 33 FMSHRC at 2988. Applying this analytic framework, the Commission
observed that Lakeview conceded the first and third elements element of section 56.9300, i.e.,
that the scales are part of a roadway, and that its rails are not at least mid-axle height. Given this
concession, the majority deemed it inappropriate to address the issue that the scales were not part
of a roadway, as set forth in Commissioner Duffy’s dissent. Id. at 2989, n. 4. The majority noted
that the judge accepted the findings, made by other administrative law judges in prior decisions,
that scales are roadways. The majority further noted that the parties had 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.” Therefore, the Commission found that
the judge’s decision should have turned on element (2), namely, whether each scale had a
drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment. The Commission determined that the judge erred by failing to make this
determination and by instead concluding that the presence of the rub rails prevented a vehicle
from overturning and harming its occupants. Id. at 2989.

The Commission concluded that the judge erred by failing to interpret the regulatory
language according to its plain meaning. By the standard’s plain terms, the Commission found
that 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. The Commission observed that
although 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. Indeed, the
judge acknowledged that the Secretary’s engineering study concluded that a vehicle might
overturn depending on the depth of drop-off, which was uncontroverted by any expert opinion
from Lakeview. Id. at 2989, n. 9.

The Commission issued the following instructions on remand:

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.

Id. at 2989. Accordingly, the Commission vacated the judge’s decision and remanded for a
determination of whether the record contains an unresolved dispute of material fact. Id. at 2990.

Commissioner Duffy dissented. He would have affirmed the judge’s decision in result
and vacated the citation on the grounds that 30 C.F.R. § 56.9300 is inapplicable because of the
faulty premise that the scales in question are part of the roadways at the subject mine, as set forth
in MSHA’s Program Policy Letter P10-IV-1 and several unreviewed decisions by Commission
administrative law judges. The dissent observed that “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 Commissioner Duffy’s view, the plain
meaning of the term “roadway” does not encompass the scales at issue. Rather, the entire context
of 30 C.F.R. § 56.9300 contemplates travel-ways or haulage routes – in a word, “roads.” It does
not extend to adjunctive facilities, such as scales. Moreover, Commissioner Duffy does not
consider the edge of a truck scale a “bank” to which the standard refers. Furthermore, he
observed that scales do not accommodate two-way traffic, a circumstance that makes the
installation of berms or guardrails necessary on the “banks” of “roadways.”

In Commissioner Duffy’s 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, which provides that
“[o]perators 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.” See 30 C.F.R. § 56.9101. Accordingly,
Commissioner Duffy would have vacated the citation because the standard was inapplicable to
the facilities cited. Id. at 2991.

B.        Application of the Commission’s Lakeview Analytic Framework

1.         Whether the Paetsch Pit Truck Scale is a Roadway or Part of the Mine’s
Roadways

a.         As a Matter of Fact, the Knife River Truck Scale at the Paetsch Pit is
Not a Roadway or Part of the Mine’s Roadways

Inspector Burns opined that all truck scales are roadways under the standard. “You
follow a road to get onto it. You get on the scale. You leave on a road. It’s one continuous road.
It’s almost like saying that a bridge is not part of a highway.” (Tr. 209.) Contrary to Burn’s
testimony and the Secretary’s position, however, the first element of the Commission’s Lakeview
test presupposes that a truck scale is not always part of a mine’s roadway. Rather, in applying the
requirements of section 56.9300 to a truck scale, Lakeview requires an initial determination of
whether the scale is part of the mine’s roadway. I find that the design, location, and use of the
truck scale at Paetsch Pit establishes that it is not part of the mine’s roadways.

Initially, I note that sworn affidavit evidence from the President of UniBridge Systems,
Inc., who designed and manufactured similar portable truck scales with rub rails at the Knife
River Coffee Lake facility, establishes that truck scales are not designed to be part of a mine’s
roadways. That affidavit states:

The Statute (sic) 56.9300 referenced in the Citation is regarding Berms or
Guardrails for Roadways.

A vehicle scale is not designed to be a Roadway. It is a scientific, metrologically
approved measuring device intended for precise measurements of empty and
loaded vehicles. The referenced scale has been reviewed, examined and approved
by the National Institute of Standards and Technology and issued a Certificate of
Conformance by said regulator.

More specifically, above ground vehicle scales have approach requirements
designed to regulate the speed of the vehicles accessing the scale deck which also
protects the scale from misuse and abuse and insures the metrological integrity of
the device.

Above ground scales are not installed in roadways but are specifically routed so
that ALL traffic does not access the scale.

(K.R. Ex. 19, para. 5.)

On the other hand, the Secretary argues, inter alia, that “the plain language of the
standard would seem to support the standard being applied to an area where vehicles must
travel.” (Sec’y Br. at 36.) The Secretary, however, has failed to establish that the Paetsch Pit
truck scale is a part of a road that a vehicle must travel to get from one point to another. The
truck scale at Paetsch pit is not located on the main haulage road where all vehicles entering and
exiting the mine must travel. Rather, the scale is removed from the main haulage road on the
side of a single-lane access road. The photographs submitted by the Secretary show that the
gravel assess road continues around the side of the scale. (See Sec’y Ex. 2.) Thus, an alternative
route might be available for a vehicle traveling along the access road to bypass the scale if the
driver chooses not to have his vehicle weighed. The record indicates that the location of the
scale is such that only drivers intending to use the scale for weighing purposes will drive over the
scale.

In my view, despite the Secretary’s assertions to the contrary, the scale at issue is not a
roadway simply by virtue of the fact that vehicles regularly pass over it. Drivers do not use the
scale as one typically uses a road, bridge, bench, or ramp (i.e., as a means of traveling from one
point to another). See Capitol Aggregates, Inc., 4 FMSHRC 846, 847 (May 1982)(use of
structure is a factor in determining if it is a roadway and ramp was an elevated roadway based on
dictionary definition rooted in common usage). Rather, the scale is used as a piece of equipment
for the sole purpose of weighing vehicles, which slowly move across the scale with intermittent
stops before proceeding back on course. The fact that trucks enter one end of the scale and exit
on another is completely secondary to the scale’s function and use.  

Consider, for example, a self-propelled vehicle or piece of equipment that is loaded on
the back of a flatbed truck for transportation to a mine site. When the vehicle is driven up the
ramp and onto the flatbed truck, the truck does not become a “roadway” as the term commonly is
understood. Instead, the flatbed truck is a piece of equipment, whose purpose and use is wholly
independent of any adjacent roadway.

Similarly, the truck scale in the present case is a piece of equipment designated and used
for a specific purpose. It was not designed to serve as a roadway and does not share roadway
features, such as banks, that are envisioned in section 56.9300. Not all traffic must travel the
scale to reach a particular destination and the scale is not integral to the adjacent roadway’s
function. Accordingly, I find, as a matter of fact, that the Secretary has failed to establish that the
Paetsch pit truck scale is a roadway or part of the mine’s roadways.

b.        As a Matter of Law, a Truck Scale is Not Covered by the Plain
Language of Section 56.9300.

1.         The Legal Landscape: Seminole Rock, Chevron, Martin, Mead
and Progeny

As explained above, the Secretary failed to establish as a matter of fact that the Paetsch
Pit truck scale is part of the mine’s roadways. I also find as a matter of law that the Secretary has
failed to establish that a truck scale is a roadway for purposes of section 56.9300.

The seminal case on judicial deference to administrative interpretations of the agency's
own regulations is the Supreme Court's 1945 decision in Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945). Seminole Rock held that an agency's construction of its own regulation
should be given “controlling weight unless it is plainly erroneous or inconsistent with the
regulation.” Id. at 414. Two other often-cited Supreme Court cases, reaffirmed the Seminole
Rock principle of judicial deference to an agency's reasonable construction of its own regulations.
See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994); Auer v. Robbins, 519 U.S. 452
(1997).

In Thomas Jefferson, the Court stated:

We must give substantial deference to an agency's interpretation of its own
regulations. Martin v. Occupational Safety and Health Review Comm'n, 499 U.S.
144, 150-151,(1991); Lyng v. Payne, 476 U.S. 926, 939,(1986); Udall v. Tallman,
380 U.S. 1,(1965). Our task is not to decide which among several competing
interpretations best serves the regulatory purpose. Rather, the agency's
interpretation must be given “ ‘controlling weight unless it is plainly erroneous or
inconsistent with the regulation.’ ” Ibid. (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, (1945)). In other words, we must defer to the Secretary's
interpretation unless an “alternative reading is compelled by the regulation's plain
language or by other indications of the Secretary's intent at the time of the
regulation's promulgation.” Gardebring v. Jenkins, 485 U.S. 415, 430 (1988).
This broad deference is all the more warranted when, as here, the regulation
concerns “a complex and highly technical regulatory program,” in which the
identification and classification of relevant “criteria necessarily require significant
expertise and entail the exercise of judgment grounded in policy concerns.”
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991).

512 U.S. at 512 (underscore added, unofficial citations deleted).

Similarly, in Auer, the Court held, that the Secretary reasonably interpreted her own
regulation setting forth the salary-basis test for determining whether employees were exempt
from the overtime pay requirements of the Fair Labor Standards Act (FLSA) and such
interpretation was controlling unless plainly erroneous or inconsistent with the regulation. The
Court found that deferential standard was easily met because the critical phrase “subject to” in
the applicable regulation comfortably bore the meaning the Secretary assigned to it. 519 U.S. at
459, citing dictionary definitions of the phrase “subject to.” (underscore added ).

Most recently, in Talk Am. v. Michigan Bell Tel., 131 S.Ct. 2254 (2011) (Justice Scalia
concurring), the Court held that in the absence of any unambiguous statute or regulation, it turns
to the FCC's interpretation of its regulations in its amicus brief. 131 S.Ct. at 2260-61, citing
Chase Bank USA, N.A. v. McCoy, 562 U.S. ___, 131 S.Ct. 871, 880 (2011). The Court stated
that it would defer to an agency's interpretation of its regulations, even in a legal brief, unless the
interpretation is “plainly erroneous or inconsistent with the regulation[s]” or there is any other
“reason to suspect that the interpretation does not reflect the agency's fair and considered
judgment on the matter in question.” 131 S.Ct. at 880, 881, quoting Auer v. Robbins, 519 U.S.
452, 461 (1997). The Court found the Commission's interpretation of its regulations to be neither
plainly erroneous nor inconsistent with the regulatory text, and there was no danger that deferring
to the Commission would effectively “permit the agency, under the guise of interpreting a
regulation, to create de facto a new regulation.” Id., quoting Christensen v. Harris Cnty., 529
U.S. 576, 588 (2000).  

In his concurrence, Justice Scalia doubted the continued validity of Auer as contrary to
fundamental principles of separation of powers to permit the person who promulgates a law to
interpret it as well, and he was receptive to revisiting Auer deference. Recently, the Court did so
in Christopher v. SmithKline Beecham Corp., 635 F.3d 383 (9th Cir. 2011), cert. granted, 132
S.Ct. 760 (U.S. Nov. 28, 2011) (No. 11-204) (oral argument transcript available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-204.pdf).

Since this case involves MSHA’s interpretation of its own regulation, it is clearly outside
Chevron’s domain and within Seminole Rock/Auer’s domain. What is not clear, however, is the
proper scope of the Seminole Rock/Auer domain in the wake of United States v. Mead Corp., 533
U.S. 218, 227, 235-38 (2001). In Mead, the Court held that some agency statutory
interpretations–particularly those contained in interpretive rules, informal orders, or other
pronouncements issued without extensive procedures–were presumptively not entitled to
Chevron deference. Such interpretations fall outside Chevron's domain, and receive at most a
measure of judicial respect, pursuant to the Supreme Court's 1944 decision in Skidmore v. Swift
& Co., 323 U.S. 134 (1944) based on the extent of their power to persuade. Post-Mead circuit
court cases have sent mixed signals regarding the effect of that decision on Seminole Rock
deference. See Stephenson, supra note 9, at 1452, n.20 (2011). A strong case can be made for
extending Mead’s logic to the Seminal Rock/Auer context by reserving strong Seminole Rock
deference for interpretations issued in orders following formal, final agency adjudications, while
granting only Skidmore deference to interpretive rules and informal orders. Stephenson, supra
note 9, at 1481-96.

Stephenson’s scholarly work also addresses how the Seminole Rock doctrine should apply
in the context of a vertical split-enforcement regime, in which one agency has the authority to
issue regulations and initiate enforcement actions, but another independent agency has the
authority to adjudicate alleged violations of these regulations on a final administrative appeal.
Id. at 1496-97. That is, when the agency with rule making or enforcement authority interprets its
regulation one way, but the agency with final adjudicative authority interprets the regulation
differently, which agency (if either) ought to receive Seminole Rock deference? In Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991), in a unanimous but narrow
opinion written by Justice Marshall, the Court resolved this question in favor of the agency with
rule making authority.

The Court held that a reviewing court should defer to the Secretary
when both the Secretary and Commission furnish reasonable but conflicting interpretations of an
ambiguous regulation promulgated by the Secretary under the Occupational Safety and Health
Act.

Although Martin took pains to insist that its holding was narrow and context specific,
subsequent courts have generally ignored this admonition and consistently held that interpretive
authority follows rule making power, rather than adjudicative power, when the two are divided.
See Stephenson, supra note 9, at 182, citing, e.g., Speed Mining, Inc. v. Fed. Mine Safety &
Health Review Comm'n, 528 F.3d 310, 319 (4th Cir. 2008) (citing Martin in the context of the
split-enforcement scheme under the Federal Mine Safety and Health Act); Dir., Office of
Workers' Comp. Programs, U.S. Dep't of Labor v. Gen. Dynamics Corp., 982 F.2d 790, 794-95
(2nd Cir. 1992) (applying Martin in the context of the split-enforcement scheme under the
Longshore and Harbor Workers' Compensation Act). But see Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 214 (1994) (“The Commission . . . was established as an independent-review body
to ‘develop a uniform and comprehensive interpretation’ of the Mine Act”). Martin seems to be
a rare example where a principle that arose originally in the Seminole Rock context has
influenced how courts have approached analogous issues in the Chevron context, rather than the
other way around. See Stephenson, supra note 9, at 183, citing,, e.g., Speed Mining, 528 F.3d at
319 (applying Martin in the context of statutory interpretation); Gen. Dynamics, 982 F.2d at
794-95 (applying Martin to determine which agency's statutory interpretation should prevail).

In sum, it appears clear, although perhaps erroneously so,

that in the context of a vertical
split-enforcement regime, where rule making and adjudicatory functions are divided between two
agencies, interpretive authority is held by the agency primarily tasked with rule making, rather
than the adjudicative agency. See, e.g., Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 319 (4th
Cir. 2008); Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006); D.H.
Blattner & Sons, Inc. v. Sec'y of Labor, 152 F.3d 1102, 1105 (9th Cir. 1998); Walker Stone Co.,
Inc. v. Sec'y of Labor, 156 F.3d 1076, 1080 (10th Cir. 1998). As the Mine Act creates such a
regime with MSHA and FMSHRC, the Commission has limited review of the Secretary’s
regulatory interpretations for consistency with the regulatory language and for reasonableness.
Cf. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 145 (1991) (stating
that the Occupational Safety and Health Act of 1970 vests interpretive powers with the Secretary
of Labor, not OSHRC, but emphasizing that the reviewing court should defer only if the
Secretary’s regulatory interpretation is reasonable). See Energy West, 40 F.3d at 463, citing
Sec’y of Labor on behalf of Bushnell v.Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C.
Cir.1989 (applying Chevron, not Seminole Rock); Consolidation Coal Co., 14 FMSHRC 956,
969 (June 1992) (examining whether Secretary’s interpretation was reasonable).

2.         The Secretary’s Regulatory Interpretation is Unreasonable,
Inconsistent with the Regulatory Language, and Unworthy of
Seminole Rock Deference  

The Secretary’s interpretation of a regulation is reasonable where it is “logically
consistent with the language of the regulation and . . . serves a permissible regulatory function.”
Cf. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted). In
determining if the Secretary’s interpretation is reasonable, the Commission may look to the
Secretary’s past informal interpretations of a regulation, as consistent application of an
interpretation bears on the reasonableness of the Secretary’s present interpretation. Martin,
supra, 499 U.S. 144, 157 (1991); see also Thomas Jefferson, supra, 512 U.S. at 515
(1994)(stating that a regulatory interpretation that conflicts with a prior interpretation is “entitled
to considerably less deference than a consistently held agency view” (internal quotation marks
omitted)).        

Applying these principles, I find the language of the regulation unambiguous. The text,
regulatory history, and general safety purposes of the regulation establish that the elevated
roadway standard does not contemplate truck scales. Cf. Akzo Nobel Salt, Inc. v. FMSHRC, 212
F.3d 1301, 1304 (D.C. Cir. 2000) (remanding for Secretary’s authoritative interpretation of
ambiguous regulation in the context of prior inconsistent interpretations so that case could then
be resolved under standard deference principles). There is no ambiguity in the phrase “on banks
of roadways.” This language and its regulatory history clearly were intended to cover haulage
roads and travel ways, not equipment. If the Secretary intended the standard to include truck
scales, she would have, could have, and should have said so. Even assuming, arguendo, that the
regulation is ambiguous, however, I find that the Secretary’s interpretation of section 56.9300 is
unreasonable, runs counter to the clear intent of the regulatory language and its history, and is
unworthy of deference.

Absent stipulated facts as in Lakeview, the Commission has never concluded that a truck
scale is, or is part of, a roadway. Neither the statute nor the regulation defines the term roadway.
In the absence of a statutory or regulatory definition of the term roadway, the Commission
applies the ordinary meaning of the term roadway. See FDIC v. Meyer, 510 U.S. 471, 476
(1994), citing Smith v. United States, 508 U.S. 223, 228 (1993); Twentymile Coal Co., 30
FMSHRC 736, 750 (Aug. 2008), citing Jim Walter Res., Inc., 28 FMSHRC 983, 987–88 (Dec.
2006). See also Island Creek Coal, 1997 WL 833381 (Jan. 1997), citing Peabody Coal Co., 18
FMSHRC 686, 690 (May 1996), aff’d, 111 F.3d 963 (D.C. Cir. 1997).

The Random House College Dictionary (rev. ed.1980) defines a roadway as “the land
over which a road is built; a road together with the land at its edge; the part of a road over which
vehicles travel.” Webster’s Third New International Dictionary (1993) defines a roadway as “the
strip of land through which a road is constructed and which is physically altered; the part of a
road over which the vehicular traffic travels.” A road is defined as “an open way or public
passage for vehicles . . . a track for travel or transportation to and fro . . .” Id.; see, e.g., Random
House College Dictionary (rev. ed. 1980) (defining a road as a “long narrow stretch with
smoothed or paved surface, made for traveling by motor vehicles . . . between two of more
points”).

The plain meaning of the word “roadway” encompasses land developed for vehicular
traffic for the purpose of traveling from one place to another. Within the plain meaning,
structures that further the road’s purpose may also be classified as part of a roadway. See
Burgess Mining & Constr. Corp., 1 FMSHRC 2038, 2044 (Sep. 1980) (ALJ) rev’d on other
grounds, 3 FMSHRC 296 (Feb. 1981). This definition would include structures such as bridges,
ramps, and benches that are continuations of a road and are integral to allowing a vehicle to
traverse varied terrain.

Equipment, such as a truck scale, does not fall within the plain meaning
because it is not integral to the structure or purpose of the road.

Thus, I find that the Secretary
reaches too far in attempting to expand the plain meaning of the regulatory language to include
truck scales.

Seeking to overcome the regulation's plain meaning, the Secretary asserts that the
agency's enforcement position as grounded in the PPL interpreting the regulation should be given
deference, presumably under Seminole Rock/Auer. But Seminole Rock/Auer deference is
warranted only when the language of the regulation is ambiguous. The regulation in this case is
not ambiguous. The Secretary has created the ambiguity. To defer to the Secretary’s
interpretation of this unambiguous regulation would be to allow MSHA to create a new
regulation under the guise of interpreting section 56.9300. Because the regulation is not
ambiguous on the issue of whether a truck scale is, or is part of a mine’s roadways, Seminole
Rock/Auer deference is unwarranted. Cf. Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000)
(noting that agency interpretations that lack the force of law (such as those embodied in opinion
letters and policy statements) “do not warrant Chevron-style deference” when they interpret
ambiguous statutes, but do receive deference under Auer when interpreting ambiguous
regulations).

The regulatory history lends support to the view that the Secretary’s regulation never was
intended to cover truck scales. During notice and comment for 30 C.F.R. 56 and 57, some
commenters asked MSHA to explain the basis for requiring berms and guardrails on elevated
roadways to be at mid-axle height. MSHA explained that, “[s]tudies have shown that berms or
guardrails at less than mid-axle height are not capable of limiting the force of the equipment or
impeding passage over the bank of the elevated roadway.” Safety Standards for Loading,
Hauling, and Dumping and Machinery and Equipment at Metal and Nonmetal Mines, 53 FR
32496-01 (proposed Aug. 25, 1988) (to be codified at 30 C.F.R. pts. 56, 57). The only study
MSHA cited in the notice and comment rulemaking as the basis for this conclusion was a manual
by the Department of the Interior in which the authors found that the height of a berm on a
haulage road must be “equal to or greater than the rolling radius of the vehicle’s tire” to provide
adequate time for a driver, operating at a moderate vehicle speed, to apply corrective measures.
Walter W. Kaufman & James C. Ault, Bureau of Mines, Information Circular No. 8758, Design
of Surface Mine Haulage Roads - A Manual (1977). Although the Bureau of Mine’s
manual appears well-nigh exhaustive concerning the scope and comprehensiveness of its analysis
of surface mine roads, truck scales were never mentioned. 

Even assuming the regulation is ambiguous, the Secretary’s interpretation, although
serving a permissible regulatory function, is not due deference because it is unreasonable under
Martin and logically inconsistent with the language of the regulation. Cf. Gen. Elec. Co. v. EPA,
53 F.3d 1324, 1327 (D.C. Cir. 1995). Attempting to apply section 56.9300 to truck scales is a bit
like trying to fit the proverbial square peg into a round hole. As the Lakeview dissent observed,
“the entire context of 30 C.F.R. § 56.9300 contemplates travelways or haulage routes - in a word
‘roads.’” 33 FMSHRC at 2991. Truck scales do not have banks like roads do. Operators cannot
erect earthen berms along the sides of truck scales without preventing access to the scale’s inner
workings. Thus, guardrails are the only option. If the purpose of a roadway is to provide access
from one point to another, truck scales are astonishingly ineffective in this capacity. Not only is
travel inhibited by the low speeds that drivers are required to observe, but multiple stops and the
delicate nature of the machinery make a truck scale unfit for use as a roadway.

The unreasonableness of the Secretary’s post-regulatory attempt to shoehorn truck scales
into the language of section 56.9300 is further underscored by record evidence suggesting that
mid-axle guardrails appears excessive and unnecessary to achieve the general safety purposes of
the regulation.

While appropriate for haulage roads, the record in this case indicates that far
less than mid-axle guardrails are needed to prevent a truck traveling at a few miles an hour from
over traveling the edge of a truck scale. Indeed, as pointed out, the regulatory height requirement
was conceived with the understanding that berms or guardrails of mid-axle height were the
minimum needed to help prevent a vehicle traveling on a haulage road at a moderate speed from
overtraveling the roadway’s edge. Even the study the Secretary’s expert relies on in his analysis
makes similar assumptions when contemplating the design and implementation of haulage road
berms and guardrails. (See Tr. 189-92, discussing, G. L. Strecklein & J. Labra, Bureau of
Mines, Haulroad Berm & Guardrail Design Study and Demonstration 36-38 (1981)
reprinted in Sec’y Ex. 4 at 18-20. See also K.R. Br. at n. 5 (supporting the Court’s independent
verification that the study does not address truck scales).) If truck scales were reasonably
included in the plain meaning of a roadway, it is difficult to fathom why they appear to have been
ignored completely in the studies on which the standard was based.

In sum, the Secretary’s assertion that the truck scale is a roadway runs counter to the
ordinary meaning of the word “roadway” and makes little sense in the context of section
56.9300. The Secretary’s creation of an ambiguity where none exists is unreasonable,
unnecessary, and overreaching. If the Secretary continues to believe that truck scales need mid-axle guardrails, she should draft a regulation to that effect after notice and comment from
interested parties. To date, she has not done so.

In light of the foregoing, I find that the section 56.9300 standard is not ambiguous and
that the Secretary’s interpretation is unreasonable and logically inconsistent with the regulatory
language and its history. I find that the truck scale at the Paetsch pit is not a “roadway” or part of
a roadway as a matter of fact and as a matter of law. Accordingly, Knife River is not required to
install the guardrails or berms prescribed by section 56.9300.

2.      Whether the Paetsch pit scale has a drop-off of sufficient grade or depth to
cause a vehicle to overturn or endanger persons in equipment

a.         The Secretary has failed to show that a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or
endanger its occupants

Apart from whether the truck scale is part of the mine’s roadway under the applicable
standard, the Secretary also has the burden to prove by a preponderance of the evidence that the
drop-off in question is of sufficient grade or depth to cause a vehicle to overturn or endanger its
occupants. See United States Steel Corp., 5 FMSHRC 3 (Jan. 1983); Sec’y of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096 (11th Cir. 1998); Ormet Primary Aluminum Corp., 23
FMSHRC 1330 (Dec. 2001) (ALJ Zielinski). In Lakeview, the Commission faulted the judge for
failing to interpret the regulatory language according to its plain meaning by first deciding
whether “a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger
persons in equipment,” before considering any existing berms or guardrails.

In the context of
cross motions for summary decision, the Commission majority remanded for a determination of
whether the operator 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.

In this case, as set forth in detail above, the Secretary’s same expert, Terrence Taylor,
found that the approximate 41-inch drop-off was sufficient to cause a vehicle to overturn under
both a static and a dynamic tip-over analysis. (See Sec’y Ex. 4.) He further hypothesized that
there was endangerment without tip-over if the front tire went up and over the rub rail, and the
undercarriage came to rest on the scale, because “[i]t is reasonable to expect that the sudden
impact of the metal axle dropping 10 inches and hitting the hard metal surface would endanger
the trucks occupants.” (Sec’y Ex. 3, p. 2-3.)

Although Taylor’s static and dynamic analysis of the risk of a vehicle overturning
appears to be mathematically and methodologically sound, Dr. Smith’s critique establishes that
both analyses are premised on the faulty and unrealistic notion that a truck would find itself in a
position where either half of the wheels were on the scale and the other half were on the ground
(static analysis) or suspended in air (dynamic analysis). (K.R. Ex. 3, pp. 4-5.) Dr. Smith stated
the following in his report critiquing Taylor’s analyses:

Static Tip-over Analysis

This analysis was done assuming that one side of the truck was on the ground and
the other side was at the edge of the scale platform. There was no basis for this
analysis as a truck can never get into that position from being on the scale
platform. It would have to be driven onto the scale with one side’s tires on the
scale and the other side’s tires on the ground. Since that would never happen, this
analysis did not represent any real world possibility and was irrelevant to the
subject case.

Dynamic Tip-over Analysis

This analysis started with the truck in the following configuration; tires on one
side of the truck at the edge of the platform and the tires on the other side of the
truck suspended in air off the ground (i.e., one side of the truck suspended in air).
This analysis looked at the dynamics as the complete side of the truck fell to the

ground at once. This analysis starts with a truck configuration that is impossible.

Again this analysis did not represent any real world possibility and was irrelevant
to the subject case . . . .

Id.

Furthermore, in both his static and dynamic analysis, Taylor did not account for the speed
of the vehicle and he assumed that the vehicle began from a tipping point in which half the
wheels were completely off the scale. Such an analysis, however, cannot be performed in a
vacuum devoid of the reality of the circumstances at the Paetsch pit scale. Prior ALJ decisions
applying the standard teach that all relevant factors must be taken into account in determining
whether there is a hazard of a vehicle overturning or endangering its occupants. See Knife River,
32 FMSHRC 912 (July 2010) (ALJ); Ormet, supra, at 1334-1345.

By contrast, Dr. Smith ran a series of simulations based on vehicle speed and the
existence of the rub rails and testified that the potential for turnover basically was zero.
Consistent with his report, he convincingly testified that a truck could never reach the position
that Taylor’s tip-over analyses placed it in. (Tr. 402-406.) In addition, although Taylor
hypothesized about endangerment if the front wheel went over the rub rail and the undercarriage
dropped 10 feet to the scale, Dr. Smith pointed out in his report that there was no analysis from
Taylor to determine if the truck could go over the rail, and there was no analysis to support
Taylor’s opinion that the occupants would be endangered. (K.R. Ex. 3, p. 5.) Further, Dr. Smith
testified that neither he nor Taylor was a biomedical engineer qualified to determine injury
causation, however, he did credibly testify that shock from any such fall, at 2-3 mph, may be
mitigated by seatbelts and seat suspension. (Tr. 407.)

Based on Dr. Smith’s superior credentials and expertise in vehicle movement and
dynamics, and the fact that he, unlike Taylor, considered the totality of the conditions at the truck
scale in question, I find that his expert opinion regarding the potential for vehicle turnover or
occupant endangerment without tip-over to be more reliable than Taylor’s. Accordingly, I give
more weight to Dr. Smith’s expert opinion that no tip-over or endangerment hazard was present
from the drop-off in the particular circumstances of this case. See generally Asarco Mining
Company, 15 FMSHRC 1303, 1307 (July 1993).

Given the indisputably slow speeds at which trucks must cross the scale, the Secretary has
not convinced me that the truck would have enough forward momentum after the front right tire
over traveled the side of the scale to cause a second wheel to over travel the side of the scale such
that the vehicle would tip over or endanger its occupants. Even Taylor conceded that a vehicle
would only become positioned such that half its wheels were on the scale and the other half on
the ground if a driver missed the entrance to the scale and proceeded forward until a critical
tipping point was encountered. Taylor posited that such a scenario was possible from alcohol
impairment, a bee in the cab, or a heart attack. While a danger may exist that a driver loses
control of his vehicle, straddles the side of the scale, and continues despite an obvious imbalance,
section 56.9300 does not speak to such danger or loss of control.

Instead, section 56.9300
addresses the provision and maintenance of mid-axle height berms and guardrails on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or
endanger its occupants.

I find that the Secretary has failed to meet her burden of proving a violation of the
applicable standard. Accordingly, the citation is vacated.

C. Even assuming a violation, Knife River lawfully abated Citation No. 8599811;
therefore, failure to abate Order No. 8599817 is vacated. 

Since Citation No. 8599811 is vacated, there is no need to abate. Accordingly, the failure
to abate Order No. 8599817 is also vacated. Even assuming a violation, however, I find that
Knife River lawfully abated the citation. Accordingly, I would also vacate the failure to abate
Order No. 8599817.  

Knife River lawfully abated Citation No. 8599811. It removed the truck scale from
service by placing concrete barriers in front of the entrance and exit to the scale. I find that the
placement of concrete barriers effectively removed the scale from service. Longstanding
Commission precedent establishes that the removal of equipment from service is a satisfactory
form of abatement with regard to citations issued for “unsafe equipment.” Peabody Coal, 1
FMSHRC 1494 (Oct. 1979); Alabama By-Products, 4 FMSHRC 2128, 2130 (Dec. 1982).

In addition, the Secretary failed to establish that the concrete barriers had been moved or
the scale had been used since the underlying citation was issued. Rather, inspector Burns was
told by mine employees that the barriers had not been moved since they were put in place, and no
vehicles had used the truck scale at the Paetsch pit since the termination date. The Secretary
failed to establish otherwise. In these circumstances, even assuming a valid citation, Knife River
lawfully abated the citation by placing concrete barriers in front of the entrance and exit to the
truck scale, thus removing the scale from service. 

IV. ORDER

The truck scale at the Paetsh pit is not a roadway or part of the mine’s roadways under
section 56.9300. The Secretary failed to prove by a preponderance of the evidence that the scale
has a drop-off of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment. It is ORDERED that Citation No. 8599811 and failure to abate Order No. 8599817
be VACATED. Accordingly, Knife River is not required to install mid-axle berms or guardrails
on the Paetsch Pit truck scale.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Adele Abrams, Esq., Law Office of Adele Abrams P.C., 4740 Corridor Place, Suite D, Beltsville,
Maryland 20705

Patricia Drummond Esq., U.S. Department of Labor, Office of the Solicitor, 1111 Third Avenue,
Suite 945, Seattle, Washington 98101

/tjr