Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/789750
AGGREGATES MANAGER / March 2017 39 Sometimes contradictory case law indicates when portions of an operation are designated as roadways and, therefore, require berms. Benjamin J. Ross is an associate in Jackson Kelly PLLC's Denver office where he represents clients on matters falling under the Federal Mine Safety and Health Act and other safety and compliance statutes, among others. He can be reached at 303-390-0026 or bross@jacksonkelly.com To Berm or Not To Berm H eadlines in Rock Law and news across the country have focused upon the change in political power in Washington, D.C. as a new president was sworn in on Jan. 20. President Trump's inauguration promises to change many things about our country and, by now, we have likely seen it affect the Mine Safety and Health Administration (MSHA). This month, however, Rock Law will take a break from predictions about future changes and focus on a constant in the min- ing world: solid, dependable berms. Surface mines often establish extensive berms, and most underground mines also have berms in various areas. The question is: in what area does MSHA require berms? Sections 56/57.9300(a) require operators to construct berms to protect the operators of loading and hauling equipment. The stan- dards mandate that "[b]erms or guardrails shall be provided and maintained on the banks of roadways where a drop-off ex- ists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment." 30 C.F.R. §§ 56/57.9300(a). In Lakeview Rock Products, the Federal Mine Safety and Health Review Commission (Commission) considered whether § 56.9300 required that an elevated truck scale have berms. The Commission remanded the case to the administrative law judge (ALJ) and stated that the elements of § 56.9300 are: (1) whether the area is part of a roadway; (2) whether a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment; and (3) whether any berms or guardrails are at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway. Lakeview Rock Products, Inc., 33 FMSHRC 2985, 2988 (December 2011). In Lakeview, the Commission articulated the main issue as whether the cited area was part of a roadway, and the elements identi- fied by the Commission did not take that determination for granted. The scales at issue in Lakeview allowed haulage vehicles laden with product to drive onto them to be weighed. Those vehicles then proceeded forward and left the scales on the opposite side from which they en- tered. These scales, therefore, inherently required that rubber-tire haulage vehicles move onto and over them on a regular basis. The Commission did not find that scales are per se roadways. Thus, the mere fact that by Benjamin J. Ross ROCKLAW