Martin Marietta Materials, Inc. et al v. Kansas Department of Transportation et al

Filing 59

MEMORANDUM AND ORDER. The 22 Motion of defendants' for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is granted in part and denied in part; and the 31 Motion of plaintiffs' for leave to amend complaint pursuant to Fed. R. Civ. P. 15(a)(2) is granted in part and denied in part. Defendant KDOT is dismissed from all counts and leave to amend to include KDOT as a party defendant in any count is denied. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/21/2013. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6.) (bmw)

b.

Operating or Opened Deposits.
Commercial deposits and those under intermittent production are sampled for
"Official Quality" from normal production. Samples are to include all size
fractions retained by the producer. Commercially operated deposits are to be
resampled for "Official Quality" when results from verification samples show
significant variation form past results, and at least every ten years.
Non-commercially operated deposits are to be sampled at the direction of the
District Materials Engineer.

c.

Unopened Deposits.
Unopened deposits may be sampled prior to production by thoroughly drilling or
otherwise sounding out the deposit. Samples taken for quality tests from
unopened deposits will be for information only. "Official Quality" samples will
be taken from actual production.

(4)
Chat Deposits: Chat deposits are sampled by the most appropriate method. Chat piles or
the products of screening plants from which material is being produced are sampled yearly for "Official
Quality."
(5)
Lightweight Aggregate: Lightweight aggregate is sampled by the most appropriate
method. "Official Quality" samples are obtained at a frequency to be determined by the Engineer.
(c)

Class I and Class II Aggregate

(1)

General

Class I and Class II Aggregates are composed of crushed limestone or dolomite. Additional
testing is performed on concrete produced with Class I and Class II Aggregates to determine if acceptable
levels of concrete freeze/thaw resistance are provided. The freeze/thaw testing is intended to reduce the
risk of the occurrence of premature "D-Cracking". Class I and Class II Aggregates are intended for use in
"on-grade" concrete slabs such as Portland cement concrete pavement. Prequalification to produce Class I
and Class II Aggregate is granted to a quarry on a bed by bed basis for each distinct bed in the quarry
face. "Official Quality" sampling and testing is also required. The acceptance of Class I and Class II
Aggregate is contingent upon production being from approved beds and in compliance with "Official
Quality" requirements.
(2)

Initial Prequalification of Quarries
a.

Initial Request Procedure
The District Materials Engineer (DME) is responsible to initiate KDOT's
prequalification activities for quarries in their districts. Upon receipt of a written
request from a quarry operator the DME will contact the KDOT Chief Geologist
to schedule a quarry inspection. The DME will forward a copy of the written
request to the Chief Geologist and the Engineer of Tests.

Rev.02-07

5.02-6

b.

Initial Quarry Inventory and Sampling Procedure
The Chief Geologist will arrange for a regional geologist to meet with district
inspection personnel at the quarry. The regional geologist is responsible for
preparing a KDOT Quarry Report (including GPS coordinates and color
photographs) for the quarry and collecting samples from the appropriate beds in
the quarry face. A plan view of the quarry indicating the location(s) in the quarry
that are intended to be mined for Class I and Class II Aggregate must be provided
by the quarry operator prior to sampling. The plan view must show appropriate
landmarks for future reference. The quarry inventory and sampling procedures
will be conducted in accordance with written guidelines maintained by the Chief
Geologist. The regional geologist will arrange to deliver the bed samples to the
Engineer of Tests.
The Chief Geologist will distribute the KDOT Quarry Report to the following:
Quarry owner/operator (1 copy); DME responsible for quarry inspection (2
Copies); Appropriate regional geologist (1 copy); and Chief Geologist (1 copy).

c.

Initial Testing and Reporting Procedures
The Engineer of Tests will process and test the ledge samples to determine if
each bed is in compliance with the specified requirements for Class I and Class II
Aggregate. The Engineer of Tests will report the test results to the quarry owner/
operator, and the appropriate DME. The Engineer of Tests will maintain a
complete list of each bed tested and the test results by quarry. The Engineer of
Tests will prepare and distribute a listing showing the approved Class I and Class
II beds for each quarry. This listing will be given wide distribution and updates
will be issued semi-annually. Inclusion on the approved listing requires 2
consecutive passing Production Samples representing current production from
beds meeting the Class I or Class II requirement. These Production Samples will
be separated by a minimum of five days of production or 2500 tons which ever is
the greater tonnage.
Should a specific bed from a specific quarry fail to pass prequalification testing,
resampling will not be permitted until significant changes occur (generally the
changed conditions to be met prior to resampling a failed bed are the same as
those necessitating reinventory inspection for continuation of prequalified status see 5.02.05(c)(5) below). When the changed conditions are deemed to justify
resampling, all beds within the ledge or geological unit will be resampled.
Requests for resampling should be made in accordance with the guidelines for
initial prequalification. Exception to this process will require approval of the
Chief of Materials and Research.

Rev.02-07

5.02-7

(3)

Inspection of Class I and Class II Aggregate Production
a.

Responsibility
The DME is assigned the responsibility to provide periodic inspection of quarry
operations to verify that Class I and Class II Aggregates produced for
Department work are produced from only those beds approved for Class I and
Class II Aggregates. In addition, the DME is responsible to verify that the
production process is essentially the same as that used to produce the aggregates
selected for the Class I and Class II Aggregate "Official Quality" test. The
necessary level of inspection may vary by quarry. For example, when all beds in
a quarry have been prequalified to produce Class I and Class II Aggregates,
normal quarry inspection activities may be sufficient to verify that Class I and
Class II Aggregates of the proper quality are being produced. However, when it
is necessary to separate out specific approved bed(s) from a ledge being mined,
additional inspection effort is warranted. The proper level of inspection is to be
determined by the DME based on the unique circumstances encountered at each
quarry.

b.

Approved Production Plan
The DME will obtain a written production plan for Class I and Class II
Aggregates from the quarry operator prior to providing inspection of Class I and
Class II Aggregate. The production plan should include but not be limited to the
following information: the location(s) in the quarry that will be mined; the
approved bed(s) that will be mined; the methods that will be used to separate the
approved beds from the nonapproved material; and the procedures to prevent any
nonapproved material from mixing with the Class I and Class II material
throughout the entire mining, hauling, crushing, stockpiling, and shipping
processes. Quarry owners/operators shall provide updated production plans to
the DME at the beginning of each production season, or as otherwise determined
by the DME, and any time significant changes occur in the production processes.

c.

Notification of shipment
Quarry owners/operators shall notify the DME responsible for inspection of
Class I and Class II Aggregates production prior to shipping such aggregates to
concrete production sites for use on KDOT projects. The DME will then notify
the appropriate Construction Office of the pending delivery of Class I and Class
II Paving Aggregates.

d.

Quarry Inspection Requirements
KDOT quarry inspectors must familiarize themselves with the plan view of the
quarry, the Class I and Class II Aggregate production plan and the KDOT Quarry
Report. These three documents should provide the inspector with sufficient
information to verify that only approved beds are being mined from approved
locations within the quarry and that the aggregates are processed in the
appropriate manner. Inspectors are required to document their inspection

Rev.02-07

5.02-8

activities during each visit to the quarry. The documentation is to be kept in a
diary or other hard copy form approved by the DME. The quarry inspector
should occasionally visit concrete production sites to assist project personnel
with identification of Class I and Class II Aggregates produced and hauled from
quarries they inspect. When visitation of concrete production sites is not
practical due to extreme distances then extra effort by the quarry inspector should
be made to communicate with project personnel to verify that Class I and Class II
Aggregate is actually being delivered and used in the concrete production.
(4)

Production Sampling
a.

Responsibility
It is the responsibility of the DME to monitor production of Class I and Class II
Aggregates at quarries within their respective district and collect aggregate
samples for verification testing. The Chief of Materials and Research will
coordinate such activities for out-of-state quarries. Reassignment of such
responsibility between DME's may be made when mutually agreeable.
Documentation of such reassignments should be circulated to concerned parties.

b.

Sampling Frequency and Location
The DME is responsible for collecting Production Samples that represent Class I
and Class II Aggregate produced from each quarry for which they provide
inspection. A minimum of one Production Sample is to be collected representing
each 20,000 tons of Class I and Class II Aggregate Production at each quarry.
For any quarry that is projected to produce less than 60,000 tons of Class I and
Class II Aggregate per year, the DME should schedule their sampling activities
so that at least three Production Samples are collected. For each project requiring
more than 5000 tons of Class I and Class II Aggregate, at least one additional
Production Sample is to be collected from the project concrete production site. If
extraordinary travel is required to sample Class I and Class II Aggregate at the
concrete production site, then the DME responsible for quarry inspection may
make arrangements with the other district’s DME to sample the stockpile.

c.

Testing
Collected samples are to be delivered to the Engineer of Tests. The Engineer of
Tests is responsible for testing the samples and for comparing the test results with
the historical test data for that quarry. The Engineer of Tests will notify the DME
of atypical test results in a timely manner. The Engineer of Tests may choose not
to perform all Class I and Class II testing if the preliminary test results compare
favorably with historical test data. However, the Engineer of Tests will review
sample records and perform Class I and Class II testing on at least three samples
per quarry per year provided sufficient samples are submitted for testing.

Rev.02-07

5.02-9

(5)

Continuation of Prequalified Status for Class I and Class II Aggregate Production

After a quarry has been prequalified to produce Class I and Class II Aggregate from a specific
bed(s) the prequalified status will continue as long as no major changes are made in the production
process or occur in the deposit characteristics. Changes in deposit characteristics may be discovered
either visually or through test results performed on Production Samples.
The DME is assigned the responsibility to notify the Chief Geologist and request that the quarry
be reinspected under any of the following circumstances:
When the location of the mining operation has moved a significant distance from where
the last inventory inspection was made (Generally, this is requested when mining
operations have moved ¼ mile or more from the most recent inspection site.).
When significant changes are observed in the deposit characteristics. Typical examples
of such changes would be a significant color change in any of the bed(s) being mined, the
disappearance of a bed(s) from the ledge being mined, significant changes in the
thickness of the individual bed(s) being mined and/or a significant change in the type or
amount of fossils observed in any of the bed(s).
When an active quarry has not reinventoried in the preceding two-year time period.
When a Production Sample fails.
When any party feels that any change in the prequalified status of a quarry is warranted they
should notify the DME responsible for quarry inspection who in turn will advise the Chief of Materials
and Research. The Chief of Materials and Research will review all available information on the changed
conditions and render a decision on any such changes. Official notification of any change in Class I and
Class II Aggregate Production status for a quarry will be provided by the DME to the quarry
owner/operator and the appropriate contractors.
(6)
Class I and Class II Aggregates produced and stockpiled at the quarry for more than 2
years shall be retested for Class I or Class II status before being used on any KDOT Project. This does
not apply to stockpiles contracted for specific projects.
(d)

Specific Gravities for the Hot Mix Asphalt (HMA) Specific Gravity List

(1)

Establishing a Location and Specific Gravity Value
(a)

General

Specific Gravity values, verification date, and GPS coordinates for HMA aggregate
sources shall be posted on the Specific Gravity List published by the Bureau of Materials
and Research. The list will be published monthly when changes occur. These specific
gravity values may be used by hot mix contractors for that month’s letting or a more
current agreed upon value as established within this section. If no changes occur during a
month, the previous month’s values may be used. The Specific Gravity List will contain
two sections. KDOT will allow the values in the upper section to be used for each
month’s letting. The lower section of the list will contain “deleted” values. The deleted

Rev.02-07

5.02-10