| Operators’ initial exuberance upon learning that the citation was
overturned should give way to a more somber reality. Producers had hoped
the ruling would prevent MSHA from applying its berm standard at 56/57.9300(a)
to weigh scales. Far from it. Administrative Law Judge (ALJ) Priscilla
M. Rae’s order July 7 actually affirmed earlier ALJ rulings that
the standard could be appropriately applied to weigh scales.
The case has been closely watched because operators have been bitterly opposed to the Agency’s relatively recent and pervasive application of the berm standard in this way. The industry has argued that the accident risk is trivial because manufacturer-installed rub rails keep trucks on track. In addition, the trucks, fully loaded, move slowly and are required to stop several times as they traverse the scales. MSHA has been unable to establish a demonstrable risk, operators assert. Operators have also contended that weigh scales cannot be considered a roadway, since a road, by definition, is used to travel to and from a destination. Scales, on the other hand, are mining equipment, since they are designed to facilitate the sale of mined material. (Judge Rae is the newest appointed Administrative Law Judge. I believe that her responses to the berm standard and definition of roadway were to avoid ruling against judgements previously made by ALJs.senior to her.The Industry must challenge the use of the berm standard and the loose definition of "scales" as roadway at the FMSHRC court level and into the District Courts of Appeals, if necessary, to establish case law.) |