FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE
LAW JUDGES
1331 Pennsylvania Ave.,
N.W., Suite 520-N
TELEPHONE: (202) 434-9958 /
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January 22, 2013
SECRETARY OF LABOR, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. KENT 2011-827 A.C. No. 15-17360-248539 Mine: PE Southern Pike Co. |
DECISION
Appearances: Matt S.
Shepherd, Esq.
For the Petitioner ,
Esq. and Melanie J. Kilpatrick, Esq. Rajkovich, Williams, Kilpatrick & True, Lexington, KY
For the Respondent
Before: Judge Tureck
This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Premier Elkhorn Coal Co. (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”). The Secretary assessed penalties against Respondent totaling $122,500 for two alleged violations of mandatory safety standards at Respondent’s PE Southern Pike County Mine (“Mine”). The Secretary contends that each of these violations was significant and substantial and involved high negligence, and that the condition set out in Citation No. 8230316 was an unwarrantable failure to comply with mandatory standards. Respondent challenges both the occurrence of the violations and the severity of the assessed penalties.
A formal
hearing was held in
evidence as the support for many proposed findings of fact. Although counsel is forthright when he is citing excluded evidence in the brief, it is nonetheless improper to do so. At best it is confusing; at worst it seems like a back-handed attempt to get around evidentiary rulings that did not go the Secretary’s way. The proper action for counsel to have taken would have been to file a post-hearing motion for reconsideration of the evidentiary rulings made at the hearing.
But citing
excluded evidence was not the only problem with the Secretary’s brief. At least twice in her brief the Secretary
refers to GX 29, which was excluded from evidence, as the operator’s manual
from the truck involved in the accident.
See Secretary’s Post-Hearing
Brief (“Sec’y’s
I will not exclude the Secretary’s brief because, despite these serious defects, it may still have some value. But I will not consider any proposed findings for which excluded evidence is cited as support, and I admonish counsel not only for citing GX 29, an excluded exhibit, but for misrepresenting it.
Findings of Fact
and Conclusions of Law
At the start of the hearing, the parties submitted a list of 19 stipulations, which I have marked as Joint Exhibit 1 and admit into evidence. These stipulations are as follows:
1. On December 12, 2009, a fatal accident occurred at the PE Southern Pike County Mine, Mine ID No. 15-17360.
2. Just prior to the accident, the deceased, Steve Johnson, was operating Truck No. P419. Truck No. P419 is a 2006 International, VIN No. 1HTXHAPTX63J233337.
3. At the time of the accident, Steve Johnson was an employee of Trivette Trucking. Mr. Johnson worked as the chief mechanic at Trivette Trucking. Mr. Johnson had approximately thirty (30) years experience as a truck driver and truck mechanic. Trivette Trucking is a contractor for Premier Elkhorn Coal Company.
4. In the two years prior to the accident, Trivette Trucking received a total of four citations from MSHA at the PE Southern Pike County Mine. These citations were issued under Section 104(a) of the Mine Act and were not evaluated as significant and substantial. The citations were issued on April 24, 2008.
5. Mr. Johnson's truck was the fifth truck loaded on the morning of December 12, 2009.
6. After being loaded, Mr. Johnson exited the coal pit and drove to a location on the haul road where another truck driver, Carl Collier, was located. Mr. Johnson parked the truck in the haul road and Mr. Collier helped him look at the steering system. Neither Mr. Johnson nor Mr. Collier detected any leaks in the steering system. Mr. Collier got into the operator's cab and turned the steering. No leaks were detected and the pump reservoir was full of fluid. Mr. Johnson then proceeded to drive the truck on the haul road.
7. The sixth truck to be loaded on the morning of December 12, 2009 was driven by Tim Bentley. While descending a section of the haul road, Mr. Bentley observed the truck driven by Mr. Johnson overturned in the roadway. Mr. Bentley stopped and parked his truck on the haul road above the accident site and walked down to the scene of the accident. There were no eyewitnesses to the accident.
8. The cab of the truck involved in the accident was not significantly damaged. The doors functioned properly and all the cab glass was intact. A seat belt was provided and was operative when tested.
9. Just prior to the accident, Mr. Johnson attempted to jump from the cab of the truck while it was in motion. He was struck by the left rear tandems, resulting in fatal injuries.
10. MSHA interviewed drivers from Trivette Trucking after the accident. The drivers stated during the interviews that pre-operative examinations were conducted daily and that deficiencies were corrected prior to using the trucks.
11. The documents attached as Exhibit A were created by Premier Elkhorn Coal Company at the Burke Branch Preparation Plant. The documents are business records of Premier Elkhorn. The documents show some of the weight of some of the coal trucks that delivered coal to the Burke Branch Preparation Plant. The coal was hauled from various mines, including the PE Southern Pike County Mine, that are operated by Premier Elkhorn.
12. At all times relevant to this proceeding, Premier Elkhorn Coal Company was the operator of the PE Southern Pike County Mine.
13. The PE Southern Pike County Mine is a "mine" as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).
14. At all times relevant to this proceeding, products of the PE Southern Pike County Mine entered commerce, or the operations or products thereof affected commerce, within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
15. Premier Elkhorn Coal Company is a large operator.
16. Copies of the violations at issue in this proceeding were served on Premier Elkhorn Coal Company by an authorized representative of the Secretary.
17. Premier Elkhorn Coal Company timely contested the violations.
18. Premier Elkhorn Coal Company is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and the presiding Administrative Law Judge has the authority to hear this case and issue a decision regarding this case.
19. The proposed penalties will not affect Premier Elkhorn Coal Company's ability to remain in business.
The PE Southern
Pike County Mine is located in
Early on the morning of Saturday, December 12, 2009, Johnson drove a red 2006 International Paystar coal truck, number P419, from Trivette’s garage to the Mine. TR 90-91. The truck had three axles, with tandem wheels on the two rear axles. Johnson was the only one of the coal truck drivers that morning who drove an International coal truck at the Mine (TR 123-24); the others drove Mack trucks. TR 75-76. At the Mine, Johnson’s truck was loaded with coal by Bobby Warf, who at the time was a front-end loader operator for Respondent (TR 124). After his truck was loaded with coal, Johnson, over the CB radio, told another coal truck driver, Carl Collier, that he was having trouble with his truck’s power steering. TR 110-12; 139-40. Johnson pulled his truck over, and he and Collier then checked out the truck and did not find any leaks in the steering system. JX 1, at ¶6; TR 105; GX 4, at 2-3. In his conversation over the CB radio, Johnson did not report a problem with the truck’s brakes. TR 140. Johnson then proceeded to drive down the Mine’s haul road on the way to the Preparation Plant. It was still dark at the time. TR 34.
The haul road was a gravel road with berms on both sides. TR 28. On the right, there was a hill behind the berm; on the left, the road dropped off. The road had a steep downward grade of 15 to 18 percent for about 1300 feet. About 30 to 40 yards after the site of the crash the haul road crosses an intersection, at which point it becomes level or very slightly upgrade for about two miles. TR 318, 378, 419. According to Respondent’s Manager of Safety, David Lee Wilder, coal trucks generally traveled very slowly – not more than 10 miles per hour - on the haul road. TR 150. At some point Johnson’s truck left the normal travelway and started heading directly toward the left berm. Johnson jumped from the truck and unfortunately “he rolled underneath the back tandems on the left side and was dragged all the way down . . . the hillside. . . . At some point the truck flipped over.” TR 44. Johnson was killed.
MSHA issued two citations following its investigation of the accident. Citation No. 8230316 (GX 1) alleges that:
[T]he driver of the . . . truck, owned by Trivette Trucking . . . , failed to maintain
control of the loaded truck as it was descending the mine haul road. Overloading
of the truck was a factor in the driver losing control. The estimated weight of the
truck was 37,600 pounds over the GVWR [gross vehicle weight rating]
recommended by the manufacturer. Premier Elkhorn was aware that the trucks
were routinely overloaded and did nothing to stop this practice. . . . This condition
is an unwarrantable failure to comply with a mandatory safety standard.
The citation states that the safety
standard violated was 30 C.F.R. §77.1607(b), which states: “
Respondent contends that the
Secretary failed to prove that the truck was overloaded and that there is no standard
governing truck loads. Even if the
Secretary proves that the truck was carrying a load in excess of the GVWR, Respondent
contends that there is no evidence that the weight of the truck’s load was
hazardous or contributed to the accident.
Citation No. 8230317 (GX 2) alleges
that:
The operator of this mine did not
assure that the [International Paystar] truck being operated by a contractor
was equipped with adequate brakes. [Specifically],
1.
Both the left and
right side brake drums on the steering axle had deposits of dried grease on the
drum lining friction surface. These conditions compromises [sic] the braking capacity.
2.
The right side brake
on the rear tandem axle did not function when tested.
3.
Wear on the brake
drums in excess of maximum allowable diameter was found on the right front
tandem and the [sic] both the left
and right side of the rear tandem.
4.
Bluing was found on
the right side drum on the front tandem and the left side drum on the rear
axle. Bluing indicates excessive
heat. These conditions compromise the
braking capacity.
This citation states that the
safety standard violated is 30 C.F.R. §77.1605(b), which requires mobile
equipment to be equipped with “adequate brakes”. Again, the citation notes that a fatality had
already occurred, that the violation was S&S, and that it resulted from
high negligence. But it was not alleged
to have been an unwarrantable failure. MSHA assessed a $52,500 penalty for this
violation.
Respondent contends that the
Secretary has failed to prove that the truck’s brakes were inadequate or that
the condition of the brakes caused the accident. Rather, Respondent contends that the evidence
shows that the most likely cause of the accident was a steering malfunction, of
which it had no knowledge. Further,
Respondent alleges that driver error has not been ruled out as a cause of the
accident.
Discussion
MSHA mine inspector and accident investigator Debra Howell was the lead investigator of the accident that killed Johnson on December 12, 2009, and she testified at the hearing. She was notified of the accident at home by the MSHA District Manager at 8:30 that morning, and arrived at the Mine sometime between 11:00 and 11:30 a.m. Also at the mine were Hank Bellamy, the head of accident investigations for MSHA for the District; Greg Hall, an engineer; State mine inspectors; Premier’s Manager of Safety and Environmental Affairs, Dave Wilder; and several miners. TR 30, 33, 35. Howell talked to some of the miners and found out that there were no witnesses to the accident. TR 33. She then went to the scene of the accident. She saw that there were no skid marks, which led her to conclude that “there were no brakes in operation.” TR 45; see also TR 33. She also concluded that the truck was overloaded. She based this conclusion on her assumptions that the loaded truck weighed more than its gross vehicle weight rating and that a truck is overloaded if it carries a load in excess of the GVWR. TR 47-48. In fact, Citation 82303126 is premised on MSHA’s contention that Johnson lost control of his truck because it was overloaded, i.e., hauling more weight than it could carry safely, and the Secretary’s expert witness, Ronald Medina, concluded that Johnson’s truck was overloaded solely because its load exceeded the manufacturer’s GVWR. GX 25, at 8; see also TR 224-26.
But the Secretary has failed to prove that Johnson’s truck was overloaded, i.e., that it was carrying a load that was too heavy for the safe operation of the truck. There are several independent grounds for holding that the Secretary has failed to prove her case, any one of which would be reason enough to vacate the citation.
First, the Secretary has failed to
prove how much the loaded truck weighed prior to the crash. It is undisputed that Johnson’s coal truck was not weighed
after it was loaded with coal, for the loaded coal trucks are weighed at
the Preparation Plant. Nor was the coal weighed while it was being loaded into
the truck, or after the crash. TR 128, 135-36, 331. The
Secretary attempted to introduce evidence regarding the weight of the four
trucks loaded before Johnson’s on the morning of December 12, 2009, but I
excluded this evidence. See TR 58-70.
In any event, since the other four trucks were Mack trucks, not International
trucks as Johnson’s was, and there is no evidence that these trucks had the
same GVWR as Johnson’s International truck or the same size bed as Johnson’s (e.g., TR 76-77), even if the Mack trucks
loaded before Johnson’s International truck carried loads of about 120,000
pounds, it would not prove that Johnson’s truck had a similar load. Without
credible evidence of the truck’s weight at the time of the crash, it is
impossible for the Secretary to prove that the truck was overloaded.
A second independent reason to vacate this citation is that even assuming the Secretary had proven that Johnson’s truck carried a load which exceeded the manufacturer’s GVWR, there is no proof that exceeding the manufacturer’s GVWR is per se hazardous. The Secretary has not pointed to a definition of “overloaded” in the Mine Act, the safety standards promulgated under the Mine Act, or any other Federal or State statute or regulation; nor has the Secretary shown that the GVWR has been adopted as the weight limit for a truck’s safe operation under any such statute or regulation. Yet it is clear from the citation and the evidence presented by the Secretary that in the context of this case she is defining “overloaded” as a load in excess of the manufacturer’s GVWR. There is no basis in this record to support the Secretary’s reliance on the GVWR as a maximum safe load for a truck to carry. Since MSHA has not formally adopted the GVWR as a standard for determining a truck’s safe hauling capacity, nor even promulgated any regulations governing truck load weights (e.g., TR 83-84), the Secretary’s bald-faced assertion that a truck carrying a load in excess of the GVWR has violated 30 C.F.R. §77.1607(b) clearly is insufficient to establish a violation of that standard.
In fact, the record contradicts such a
conclusion. For one thing, the evidence
establishes that Kentucky permits trucks to operate in excess of the
manufacturer’s GVWR if a fee is paid (TR 87), which indicates that Kentucky does not believe the
GVWR is the limit of the weight trucks can haul safely. Rather, the weight limits imposed on trucks
by
Accordingly, there is no basis to find that it is inherently unsafe for a truck to haul a load in excess of the manufacturer’s GVWR. Since that is the essence of the Secretary’s case regarding Citation 8230316, this citation must be vacated due to this factor alone.
There is a third independent factor
mandating the dismissal of this citation.
Even accepting the Secretary’s contention that Johnson’s truck was
hauling a load of around 120,000 pounds at the time of the crash, the evidence
establishes that the weight of the load was not
hazardous. Both parties’ expert witnesses testified that 120,000 pounds was not
an unsafe load for Johnson’s coal truck to haul.[3] Ronald Medina is a mechanical engineer employed by MSHA. TR 247.
He testified as an expert witness for the Secretary regarding braking
and steering systems.[4]
Accordingly, the Secretary has failed to prove that the truck which Johnson was driving on the morning of December 12, 2009, was overloaded or was hauling a load that was heavier than it could safely handle. Since that is the crux of Citation No. 8230316, it must be vacated.
Citation 8230317
It is the
Secretary’s position that the brakes in Johnson’s truck were defective and
these defective brakes contributed to the accident which resulted in Johnson’s
death.
However,
Respondent’s
expert, Rasnick, disagrees with
That
Johnson’s truck was not traveling at an excessive rate of speed at the time it
crashed is also the opinion of Respondent’s Manager of Safety, David
Wilder. Contrary to
Wilder believes that the accident was caused by a problem with the truck’s steering, not the brakes. TR 430-31. He stated that he knew Johnson personally, and he “was one of the best drivers on the property.” TR 432. He testified that Johnson should have been able to keep his truck in the road even without any brakes if he could have turned the steering wheel the slightest amount. TR 430-31.
I find that the Secretary’s assertion that the accident resulted from defective brakes is questionable at best. First, there are three different braking systems that Johnson could have employed to stop or slow down the truck. The truck had six drum brakes, two on each axle. TR 267. The brakes are activated when the driver steps on the brake pedal, which sends air pressure to the brake system. These are the service brakes. Then there are spring brakes on the two rear axles which do not rely on air pressure and function as the parking brake. TR 268-69. Finally, the truck has an engine brake – the Jake brake – which has the ability to slow the truck as long as the truck is in gear. TR 319. Although the Secretary contends that the truck’s service brakes were defective, the evidence shows that only one of the six drum brakes was too worn to have functioned. Rasnick testified that if only one of the drum brakes was not functioning, the brakes on the other five wheels would have stopped the truck. TR 522-23, 527-29. Further, no deficiencies were found in either the parking brakes or the Jake brake. GX 25, at 5, 8; GX 4, at 5. Significantly, the only brake drivers generally used on the haul road was the Jake brake. TR 319, 344.
In addition, assuming that Johnson could not stop the truck because his brakes failed, why would he not have attempted to turn the truck so it stayed on the road? He was familiar with the haul road, and had to know that it would very shortly level out, permitting him to eventually stop even with seriously defective brakes. TR 419, 421. Yet the truck did not turn at all – it headed off the normal travelway straight into the berm from 283 feet away. TR 424. There is no credible evidence that the truck was traveling more than the usual rate of speed of not more than 10 miles per hour at which the coal trucks generally went down the haul road prior to the time Johnson lost control of the truck. But even if the truck was going more than 10 miles per hour – even if it was going much more than 10 miles per hour – Johnson should have been able to at least start turning the truck to try to keep it on the road. TR 430. Yet the truck did not deviate from the path it took directly into the left berm. Also significant is that Johnson drove the truck from Trivette’s location to the Mine on the morning of the accident. If his brakes were as defective as the Secretary alleges, it is hard to believe that a mechanic of his experience would not have noticed that something was wrong with them. But he stopped to check the steering after his truck was loaded, not the brakes.
Moreover, when the truck’s steering
mechanism was inspected following the accident, serious problems were
found. Of greatest significance, the
worm gear inside the steering wheel box was broken. When the worm gear is broken, the driver
cannot steer the truck. TR 279-80. A
representative of Sheppard, the steering gear manufacturer, was called in to
inspect the steering system. He
concluded, as might be expected considering Sheppard’s potential liability if
the steering mechanism had malfunctioned, that the damage to the worm gear was
caused by the accident, not the other way around. E.g.,
id at 2: GX 25, at 5.
Further, it was discovered that several
seals in the truck’s steering mechanism had been installed backwards, which
resulted in power steering fluid leakage. GX 25, at 3. The power steering fluid was below the “add”
line on the power steering dipstick.
In her report of the accident investigation, Inspector Howell concedes that deficiencies in the steering could have contributed to the accident. GX 4, at 7. The Secretary has not contended that the alleged overloading affected the truck’s steering, only the truck’s capacity to stop. Yet under the circumstances of this case, the most logical assumption is that the truck crashed due to a steering problem. It is highly significant that just prior to the accident, Johnson was so concerned about his truck’s steering that after the truck was loaded with coal he stopped the truck and, with another driver, inspected the steering system as best they could under the circumstances. He did not report any problems with the truck’s brakes. Within a very short time after Johnson resumed driving, the truck crashed by going straight into the left side berm without deviating from its course. Moreover, as was just pointed out, subsequent to the accident, the investigators found that there was a major problem with the steering system which could have caused it. In regard to the brakes, although problems were found, the brakes apparently had functioned properly earlier that morning when Johnson drove the truck to the mine and immediately after it was loaded with coal. Further, there is no evidence that the Jake brake, which Johnson most likely would have been relying on to slow the truck at the time he lost control of it, was defective. Attributing the accident to brake failure considering the low rate of speed at which the truck was likely traveling probably would have required three separate braking systems to have failed simultaneously.
To state the salient facts in this case in their simplest, a highly experienced coal truck driver, who is also the trucking company’s chief mechanic, complains about a problem with his truck’s steering, and minutes later is killed in an accident where the truck travels perfectly straight out of the normal travelway for 283 feet and crashes into a berm. An inspection of the steering gear subsequent to the accident determines that a part of the steering gear which would have rendered the steering inoperable had it broken prior to the crash was, in fact, broken. Yet MSHA determined that the accident was caused by deficient brakes in an overloaded truck, dismissing a problem with the steering as a possible cause.
To give the Secretary her due, the cause of the accident in this case is far from straightforward, and since the truck’s brakes were far from perfect it is possible that defective brakes played a role in the accident. But even if the brakes were not working at all, that would not explain why Johnson could not steer the truck away from the berm. Absent proof that the brakes would have been incapable of slowing down the truck enough to permit Johnson to steer it, it is hard to ignore the obvious – that Johnson could not steer the truck. Under these circumstances, attributing the accident solely to defective brakes in an overloaded truck appears illogical.
Adding to the uncertainty, if only the brakes were not functioning, Johnson should have been able to steer the truck so that it would not have crashed into the berm. But the truck did not turn at all; it drove straight into the berm. On the other hand, if only the steering was not working, Johnson should have been able to stop the truck before it reached the berm. The only way this accident makes any sense is if both the steering and the brakes were not applied or stopped functioning simultaneously. In regard to the former, something physically could have happened to Johnson just prior to the crash which caused him to lose control of the vehicle. But there is no medical evidence which addresses Johnson’s medical condition at the time of the crash,[5] and that he jumped from the truck shows that he was conscious just before the truck struck the berm In regard to the brakes and steering failing simultaneously, Rasnick proposed a scenario in which both the brakes and the steering would have been rendered ineffective. He believes that Johnson’s truck went into what is called limp mode or idle mode. TR 454.
[I]f it’s [the truck] in idle mode, you’re not going to have the Jake brake, you’re going to lose air pressure, or it’s not going to run like it should because it’s going to be running anywhere from eight [hundred] to 1,000 RPMs a minute [instead of 1400 to 1600]. And if he’s used his air pressure up and he’s trying to get it into a ditch, you couldn’t steer it and try to get into the ditch to stop the truck, probably. TR 482.
Rasnick’s testimony on this point is not air-tight. It depends to a significant extent on a printout
by a Cummins dealer from the truck’s electronic control module, which is
somewhat similar to an airliner’s black box (TR 382). RX 1.
Cummins is the company which manufactured the truck’s engine. The significance of this report is disputed
by
Based on the foregoing, I conclude
that the Secretary has failed to prove that that Johnson’s truck crashed due to
defective bakes.
However, the Secretary has shown
that there were defects in the service brakes on Johnson’s truck. For one of the drum brakes, it was worn to
the point that it was ineffective, and three others were worn below recommended
levels. But the regulation in question, 30 C.F.R. §77.1605(b), requires brakes
to be “adequate”, not perfect. If a
truck’s brakes are worn, but are still capable of stopping it, are those brakes
adequate?
Judge Feldman faced a similar issue
in Nally & Hamilton Enterprises, Inc.,
31 FMSHRC 689 (June 23, 2009) (ALJ), rev’d on other grounds, 33 FMSHRC 1759 (Aug. 11, 2011) (hereinafter
“N&H”). As in this case, N&H
concerned an alleged violation of §77.1605(b). The truck involved, although not
a coal truck, also was a three axle tandem vehicle. The inspector had found that one of the six
brake assemblies was not adjusted properly, which allegedly would have a
negative impact on the five other brakes.
Nevertheless, it appeared that overall, the brakes were working.
In order to determine whether
§77.1605(b) had been violated, Judge Feldman turned to the dictionary for
guidance:
The applicable meaning of the term adequate is “. . . fully
sufficient for a specified or implied requirement. Webster’s Third New Int’l Dictionary, Unabridged 25 (2002). An entity is “sufficient” when it is “marked
by quantity, scope, power, or quality to meet with the demands, wants, or needs
of a situation or of a proposed use or end.”
The plain use of the terms “adequate” and “sufficient”
reflects that section 77.1605(b) is a functional standard. In other words, service brakes can be deemed
adequate as contemplated by section 77.1605(b) even if a component part is in
need of adjustment. Thus, the
dispositive question is
whether the braking system on the . . . truck was
functioning adequately.
N&H at 694-95.
Since there is no further guidance in 30 C.F.R. Part 77 regarding
when brakes in trucks are deemed adequate, Judge Feldman referred to the
regulations governing trucks used in surface metal and non-metal mines. Thirty C.F.R. §56.14101(a)(1) states that
“self-propelled mobile equipment shall be equipped with a service brake system
capable of stopping and holding the equipment with its typical load on the
maximum grade it travels.” He applied
this standard in concluding that the Secretary had failed to prove that the
truck’s brakes were inadequate in violation of §77.1605(b), since the evidence
indicated that despite the problem with one of the brakes, the truck’s driver
believed the brakes were functioning normally.
N&H at 695.
Judge Feldman’s discussion of this issue is very well
reasoned, and I will apply his analysis to this case. Accordingly, it is not
enough for the Secretary to prove that there were problems with the truck’s
brakes. Instead, the Secretary must prove
that the brakes on Johnson’s truck were not capable of stopping and holding the
truck with its typical load on the maximum grade it travels. Specifically, did the Secretary prove that
the brakes on Johnson’s truck were incapable of stopping it on the haul road?
There were two ways in which the Secretary
could have met this burden. First, she
could have proven that the accident was caused by the defects in the
brakes. But based on the record before
me, the cause of Johnson’s fatal accident is inconclusive. In fact, it is more
likely that the accident was caused by a failure of the steering system, or by
other problems which caused both the brakes and the steering to fail
simultaneously, rather than defective brakes.
Second, the Secretary could have proven that the defects with the
truck’s brakes were significant enough to cause the brakes to fail in typical
usage regardless of whether they caused the accident. In this regard, it is
doubtful that Johnson believed the truck’s brakes were not functioning
adequately. Johnson frequently, if not routinely, drove this particular truck,
and had driven it on at least some occasions in the weeks before the
accident. TR 123-24, 432. Further, he had driven the truck that morning
from Trivette’s garage to the Mine without pointing out any problems with the
brakes. In addition, Rasnick’s testimony
that the brakes, in the condition they were in, were adequate and would still
have been able to stop Johnson’s truck going down the haul road, is well
explained.
In regard to both factors, I give
little weight to
Therefore, I find that the Secretary
has failed to prove that the brakes on Johnson’s truck were not adequate. Accordingly, Citation No. 8230317 must be
vacated.
ORDER
IT IS ORDERED that Citation Nos. 8230316 and 8230317 are VACATED, and this case is DISMISSED.
/s/
Jeffrey Tureck
Jeffrey Tureck
Administrative Law Judge
Distribution:
Matt S. Shepherd, Esq.,
[1] Citations to the record of this proceeding will be abbreviated as follows: GX – Government Exhibit; RX – Respondent Exhibit; JX – Joint Exhibit; - TR Hearing Transcript.
[2] In Clintwood Elkhorn Mining Co. v. Secretary of Labor, 32 FMSHRC 1880 (ALJ 2010), Judge Gill similarly concluded that the GVWR cannot be used to determine that a truck is overloaded.
[3] Had I admitted into evidence the weight records for coal haul trucks that the Secretary proffered, they would have shown that the trucks routinely carried loads of about 120,000 pounds without incident.
[4]
[5] It does not appear that a post-mortem examination was conducted, and the condition of Johnson’s remains after the crash may have made such an examination impossible.