Aggregates Manager Digital Magazine
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AGGREGATES MANAGER / March 2017 41 loaded haulage vehicles move and operate in an area does not necessarily make an area a roadway. As a result, Com- mission ALJs need to examine the design, location, and use of the area to determine whether the area is a roadway and § 56.9300 applies, as opposed to simply evaluating the type of vehicles that move in the area. Knife River Corp., North- west, 34 FMSHRC 1109, 1122 (May 2012) (ALJ McCarthy); Delta Concrete Products, Inc., 36 FMSHRC 2903, 2938 39 (November 2014) (ALJ Simonton). Several months after Lakeview, the Commission looked at a "roadway" in the context of berms under the coal stan- dard, 30 C.F.R. § 77.1605(k), and held that an elevated area "is a roadway where a vehicle commonly travels its surface during the normal mining routine." Black Beauty Coal Co., 34 FMSHRC 1733, 1735 (August 2012). The presence of a rubber-tire vehicle in and of itself did not make an elevated area a roadway requiring berms under the standard. In Black Beauty, the Commission held that the cited area was a roadway during a dragline move because the area was a roadway at all other times and rubber-tire vehicles trav- eled upon the roadway during the longwall move. Id. Commission precedent suggests that vehicle movement pursuant to work activities alone does not make an area a roadway. In Black Beauty, the Commission found that the "to-and-from haulage across that bench," and not the use of rubber- tire vehicles during the dragline move alone, made the area at is- sue a roadway. Black Beauty, 34 FMSHRC at 1736. The Commission considered the purpose of the area and not just the type of vehicles in the area. Id. The area was commonly used as a roadway and rubber-tire vehicles continued to use the area, which means that the purpose of the area was that of a roadway and "the dragline move did not alter the bench's status as a roadway." Id. The overall purpose of the area, and not the vehicles using that area, determine the applicability of the berm standards. Now, it is clear that an area that is designated as a roadway remains a roadway when used for another pur- pose, if vehicles continue to travel upon it. Haulageways, travelways, and any areas where vehicles commonly travel for the purpose of loading or hauling materials are road- ways and require berms. Scales that are not part of a nor- mal travelway or exit are not roadways and, therefore, do not require berms. What is currently unclear is whether the berm standards apply to all work areas, given that, in some districts, MSHA interprets the standards to apply to drill- ing and blasting areas. Commission case law suggests that MSHA's application is incorrect. Perhaps the enforcement agenda of the new administration will affect even berms, and definitively exclude work areas from MSHA berm re- quirement. AM FIND US ONLINE! Connect Find us: Aggregates Manager Magazine Like /AggregatesManager Follow @AggregatesMgr AggMan_FindUsOnline_ad.indd 6 2/15/17 10:15 AM ROCKLAW