Occupational Safety and Health NewsAlertFor clients and friends of Jackson Kelly PLLC
Volume 6, Number 24
©2010 Jackson Kelly PLLC
On August 26, 2010, MSHA issued Program Policy Letter (“PPL”) No. P10-1V-1, which addressed the applicability of 30 C.F.R. § 56.9300 to elevated truck scales at metal and nonmetal mines. Section 56.9300(a) requires that berms or guardrails be provided and maintained on the banks of roadways where a dropoff of sufficient grade or depth exists that could cause a vehicle to overturn. The standard further requires that the berms or guardrails be at least mid-axle height of the largest self-propelled mobile equipment that usually travels the roadway. 30 C.F.R. § 56.9300(b).
The PPL states that MSHA considers truck scales to be elevated roadways that would require berms or guards under § 56.9300 if there exists a dropoff of sufficient grade or depth that could cause a truck to overturn or endanger persons in a truck. Where berms or guardrails are required, they are required to be, at a minimum, the mid-axle height of the largest vehicle that drives over the scales.
The PPL provides some guidance on the design parameters for a guardrail. It advises that scales with an elevated surface of 16 inches or less off the ground should be equipped with a curb, rub rail, berm, or guardrail that is at least six inches high. The PPL states that a truck would not be expected to overturn if the elevation of the scales is 16 inches or less. For scales with an elevation of 16 inches or more, the PPL advises either elevating the ground alongside the scales to reduce the dropoff or constructing a berm or guard mid-axle height of the largest truck that uses the scales.
The PPL references two Administrative Law Judge decisions: APAC-Mississippi, Inc., 26 FMSHRC 811 (ALJ Weisberger Oct. 2004), and Carder, Inc., 27 FMSHRC 839 (ALJ Manning Nov. 2005). In APAC, the ALJ found that the elevated scale constituted a “roadway” under § 56.9300 and therefore required berms or guardrails where a dropoff of 37-42 inches in depth was present. In Carder, the ALJ vacated a citation for failure to equip elevated scales with berms or guardrails because the operator did not have adequate notice that the requirement applied to elevated scales. MSHA had inspected the unguarded scales numerous times and had not previously issued any violations or indicated that the scales needed to be guarded. The ALJ, however, did note that the 32-36 inch dropoff that existed was sufficient to cause a truck to overturn and, therefore, going forward, the operator was on notice that guardrails or berms would be required.
The PPL raises several questions. First, the suggestion that a curb, rub rail, berm, or guardrail that is at least six inches high be present when the dropoff is 16 inches or less would appear to be misplaced, given the PPL’s statement that such a dropoff does not present a danger of a truck overturning. If no such danger exists, § 56.9300 would not apply and this requirement would exceed the scope of the standard. Second, the PPL does not offer any support as to why a dropoff of greater than 16 inches would present a danger of a truck overturning. This is particularly noteworthy given a recent ALJ decision, Knife River Corp., Northwest, Docket No. WEST 2010-1319 (ALJ Rae July 7, 2010), where a citation for failure to provide a berm or guardrail on elevated scales was vacated because the Secretary did not prove that the dropoff of 26½-36 inches was of sufficient depth to trigger the requirements of 30 C.F.R. § 56.9300.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
(303) 390-0003
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Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0003
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R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000 |
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