ORDER GRANTING SECRETARY OF LABOR’S MOTION TO FILE LATE PETITION FOR THE ASSESSMENT OF CIVIL PENALTY

(a) Minimum requirements . . .

(3) All braking systems installed on the equipment shall be maintained in functional conditions.

30 C.F.R. § 56.14101(a)(3). The citation described the alleged violative condition as follows:

The right front braking system installed on the 63 M Lube truck was not being maintained in functional condition. The lube truck operates every day with a different driver. Standard 56.14101a3 was cited 6 times in two years at mine 0200024 (3 to the operator, 3 to a contractor). The S-cam shaft had lost the snap ring and slid into the brake shoe area within approx. 1 in of the Lug bolt heads in the hub. The S-cam actuating lever had slid off of the shaft and was hanging from the canister. The truck travels through-out the mine to service equipment. Should the brakes have locked up in traffic or on a curve, the serious, collision, impact, blunt force, permanently disabling injuries could occur.

Hunt determined that a permanently disabling injury was reasonably likely to occur, that the violation was significant and substantial, that one employee was affected, and that the negligence was moderate. Pursuant to 30 C.F.R. § 100.5, the Secretary proposed a civil penalty in the amount of $7,300.00 for this alleged violation.

On September 15, 2010, one week after the citation discussed above was issued, Inspector Kelly Hunt issued Citation No. 6587446, pursuant to Section 104(a) of the Mine Act, to Freeport McMoRan for a second alleged violation of Section 56.14101(a)(3) of the Secretary’s regulations. The citation described the alleged violative condition as follows:

The braking system installed on the Kenworth SU-106 flatbed was not being maintained in functional condition. Standard 56.14101a3 was cited 7 times in the two years at mine 0200024 (4 to operator, 3 to a contractor). The left front drive axel brake, S-cam Lever had come off of the S-cam shaft. The shaft had an accumulation of dirt and road material to indicate recent operation. The truck was operated on 9-14-2010. Should the shaft, shift into the hub and lug bolt heads to lock up the axle and the driver loose (sic) control, the serious, impact, collision, blunt force injuries could occur.

Hunt determined that a permanently disabling injury was reasonably likely to occur, that the violation was significant and substantial, that one employee was affected, and that the negligence was moderate. Pursuant to 30 C.F.R. § 100.5 the Secretary assessed a civil penalty in the amount of $8,400.00 for this alleged violation.

The testimony regarding the two citations overlaps and, therefore, the various elements of each citation are discussed together. In each instance the mine operator does not dispute that Hunt observed a broken snap ring on the brakes, rendering those specific brakes non-functional. However, the operator takes issue with the designation of the two citations as significant and substantial and asserts that the violations were not the result of moderate negligence. (Tr. 10). Both citations were issued by mine inspector George Kelly Hunt who has been a mine inspector for five years and, prior to becoming a mine inspector, worked for 30 years in the mining industry. (Tr. 17-18).

On September 8, 2010 Hunt was at the Morenci mine to conduct a regular inspection and as a part of that inspection was assigned to inspect the trucks and equipment at the mine. (Tr.20). Hunt traveled to the western copper area where material was being hauled, and began to flag down trucks to conduct his inspection. After inspecting the lube truck, he issued Citation No. 6587444 for a failure to maintain the brakes. Hunt first asked the truck operator for a copy of the pre-op report and after reviewing the report, began to inspect the truck. He observed that the snap ring on the S-cam front brake was broken. He testified that the right front S-cam actuating lever had slipped off of the shaft and was hanging from the canister brake. The right front brake was, therefore, not functional. (Tr. 25).

The lube truck travels to various locations at the mine to grease and oil other vehicles. On that day, the truck had started operation around 6:30 a.m. and was used until stopped by Hunt four hours later. The lube truck was returning from the pit when it was stopped. Hunt observed mud on the brake system, which indicated to him that the brakes had been operated for some time in the non-functioning condition. (Tr. 27). While the front brake was not functional, the remaining brakes had no visible problems. This particular truck has two tires on the front and four on the back. It has a single line brake on each front tire and a front steering axle. When the right brake is not functional, the left brake will pull to one side, causing the brakes to pull or lock up, thereby indicating to the driver that there is a brake problem. (Tr.30). The truck has a front cab, and is top heavy when it is loaded with grease and oil.

Approximately one week later, Hunt was back at the mine examining trucks and heavy equipment when he observed the identical condition, i.e., a broken snap ring on the S-cam brake, on a brake on a flatbed truck. (Tr. 32). The flatbed truck is a large vehicle used to haul various parts, equipment and water to locations at the mine site. It carries thousands of pounds of weight, often chained down on the bed. (Tr. 33-34). Hunt admits that the condition on the flatbed truck was more difficult to see than the defective brake on the lube truck, and he had to bend down and look underneath the truck, but the condition was the same as that which he observed on the lube truck. This time the S-cam lever that was broken was on the left front drive axle brake.[1] The flatbed has two sets of drive axles, one on the front and one on the back. The truck has one brake pod for each set of wheels. When Hunt inspected the vehicle, it was parked, ready for use, and not tagged out. He learned from the supervisor that the vehicle had been operated the day before the inspection. Both this truck and the lube truck travel on the dirt haul roads, which contain 8-10 percent grades. Hunt had observed this condition in which the attaching hardware was broken or loose on both trucks. The condition allowed the S-cam actuating lever to come off the shaft, and on the one truck it hung down, and on the other it was flopping. The brakes on these wheels were totally inoperable. Hunt could not tell if the hardware was original to the trucks or had been replaced, but, prior to these inspections, he had not seen such a condition.

Hunt explained that anytime there is a loss of brakes, there is a problem with safe operation. Drivers are accustomed to driving with all brakes functioning and, when all of the brakes are working, the truck functions as it should and as the driver expects it to. In a normal day of mining, driving becomes repetitive and if suddenly brakes lock up as the truck is coming to a stop, or it pulls to one direction, the driver must react quickly and may not be able to stop. If the truck is coming down a hill, if roads are wet, or if there is opposing traffic, a collision is likely. (Tr. 40).

Ronald Medina, testified as a brake expert for the Secretary. Medina has a BA in mechanical engineering and has worked in MSHA’s technical support division for 34 years. (Tr. 69-70). He has been involved in many accident investigations involving various types of vehicles, including those with S-cam brakes similar to the ones on the lube and flatbed trucks at issue here. (Tr. 70-72). For the most part, Medina’s laborious testimony had little direct relevance to the issues, but he agreed with Hunt that having one inoperable brake diminishes the effectiveness of the stopping capability of the entire braking system. (Tr. 76). Here, the slack adjuster that was disconnected by virtue of the broken ring made the brake nonfunctional. (Tr. 75). The remaining brakes on the vehicle are not affected by this condition, and will function. However, with one brake inoperable, the total stopping capability of truck is diminished. (Tr. 75-76). In Medina’s words, with one brake out, “there’s even a greater likelihood for all of the tires to go into a skid on a wet road[.]” (Tr. 77). Medina opined that one bad brake may not cause an accident if the driver slows at a stop sign, but, during a hard stop, the stopping distance is longer, and handling would be affected by the uneven pulling of the brakes. (Tr. 76-77, 89-91). Truck drivers are familiar with the trucks and are accustomed to stopping with all brakes working. (Tr. 76). Medina described the possibility of the truck going into a skid and the issue of “brake fade” when operating on a grade, particularly when carrying a heavy load. (Tr. 77-86, 104). An additional hazard associated with the malfunctioning brake is lock up, especially with a front axle like the one on the lube truck. A lock up, or other uneven braking, causes a handling problem in that the truck will pull in one direction unexpectedly. Medina sees a potential for the truck to pull into a berm, or into an oncoming vehicle. Medina explained that the brakes on the lube truck would have about a 25 percent less operational ability with one bad brake, and perhaps slightly less if the problem is with the rear brake as opposed to the front brake. (Tr. 97-100).

Jim Lusk, the superintendent of maintenance at the Morenci mine, has worked at the mine for nearly 37 years. (Tr. 119-120). The mine has 2500 employees and operates 24 hours a day. (Tr. 122). Lusk accompanied Hunt when Hunt observed the violation on the flatbed truck. (Tr. 122). Lusk agrees that the vehicle was parked but ready to use. All trucks at the mine are on an 84 day preventative maintenance schedule. (Tr. 128). Along with changing the oil and air filter, during the preventative maintenance, the vehicle undergoes an inspection and any safety defects are immediately repaired. (Tr. 129). The truck drivers also perform a pre-op inspection and 7 step inspection of the air brakes and a rolling motion test, prior to driving a truck. (Tr. 125). If the vehicle does not pass the pre-op or brake inspection, it is tagged out and repaired. The mine records show that the flatbed had its last maintenance check in March 2010, about six months prior to the citation issued by Hunt. (Tr. 132-133). Since a brake inspection is a major part of the 84 day maintenance, Lusk would expect mechanics to find a broken snap ring during that time. (Tr. 134-135).

Justin Leigh has worked for five years at the Morenci mine and he routinely drives the lube truck. (Tr. 149-150). He was a tractor trailer mechanic prior to working at Morenci. (Tr. 150). Leigh testified that, on the day of Hunt’s inspection, at the beginning of his shift, he felt the truck pull to the right. (Tr. 151). He then looked the brakes over and adjusted them, and had no other problems until stopped by Hunt. (Tr. 151-152). Leigh explained that the lube truck drives from area to area to fuel, oil, and grease the equipment as needed. (Tr. 153). Each stop lasts about 20 minutes. (Tr. 154). Leigh drives the lube truck up and down hills on bermed, bumpy, dirt roads while doing the job. (Tr. 154, 156-157). The speed limit in the areas the truck travels is 35 mph, but he travels slower, about 20 mph, if the roads are dusty or wet. (Tr. 156-157). In Leigh’s view the brakes were working as usual during the shift and the truck stopped normally when the inspector stopped him, and there was no pulling to the left or right prior to the time the inspector pulled him over. (Tr. 154). Leigh uses the engine brake when traveling downhill. (Tr. 159). He does not see a missing brake on the truck as a problem on the downhill grades. Leigh has seen the clips on the brakes pop off in the past, but has not seen it result in an accident.

Amanda Bartlett is an hourly employee at the mine. (Tr. 180). She drove the flatbed truck the shift prior to the one during which Hunt issued the citation. (Tr. 179-180). She uses the truck to haul water, engines, and other equipment. (Tr. 180). The flatbed truck is a large truck, but smaller than a haul truck. (Tr. 180). It has ten wheels in total and is a 20 ton truck. (Tr. 180). She believes she was hauling a pump or a motor prior to the citation being issued. (Tr. 180). The speed limit is 20-25 mph but she drives much slower when the truck is fully loaded. (Tr. 180-181). Prior to beginning her shift, she completed the pre-op inspection and the 7 step air brake test. (Tr. 181). She used a form called a “pink card,” Sec’y Ex. 30, to record the pre-op. (Tr. 182). One side of the card displays the pre-op procedure for the vehicle and the other side displays the 7 step air brake test. She cannot see brake components by walking around the truck and is not comfortable getting under the truck since she is not a mechanic. (Tr. 185). She didn’t notice anything different the day before the inspection, and she noticed no problems with the brakes. (Tr. 185-186). She agrees it would not be safe to drive with the brake not functioning. (Tr. 188).

George Connell has been a safety specialist at the mine for the past five years. (Tr. 189). Connell was present when the citation was issued for the flatbed truck violation. (Tr. 190). He looked at Morenci records going back 7 years and found no accidents related to brakes. (Tr. 191). He explained that truck operators are task trained, and that the mine has a good maintenance program that makes it a safe place to drive. (Tr. 192). The mine maintains all roads and berms and some roads are separated roads or are barricaded to isolate the traffic. (Tr. 192-193).

a. The Violations

Respondent does not dispute that the condition of the brakes as described in both of the citations did, in fact, exist. Respondent further agrees that the brakes, in the conditions found, were inoperable. Hunt testified that, based on his observation of the conditions of the brakes, the brakes were not being maintained. However, Hunt was not aware of the specific requirements of the mine’s maintenance plan. (Tr. 56). While Respondent did present evidence that the mine conducts regular maintenance every 84 days, it presented no relevant evidence that these specific vehicles were properly maintained. Therefore, based upon the testimony of Inspector Hunt, I find that the brakes were not maintained in functional condition and that the violations occurred as set forth in each citation.

b. Significant and Substantial

Hunt designated both violations as significant and substantial. A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the Mine Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard (2) a discrete safety hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

The Commission has long held that a S&S designation must be based on the particular facts surrounding the violation, and viewed in the context of continued mining operations. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission and courts have also observed that an experienced MSHA inspector’s opinion that a violation is significant and substantial is entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC, 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc., 52 F.3d 133, 135 (7^th Cir. 1995).

I have found that there is a violation of a mandatory standard. Further, I find that the violation created a discrete safety hazard, i.e., brake failure resulting in an inability to properly control the vehicles and, in turn, a collision. There is no dispute that the cited brakes on both trucks were inoperable. The question is, will that failure likely lead to an accident. Hunt testified that his concern was the loss of the braking capability and “that a vehicle could lose part of its braking and cause an accident.” (Tr. 63). If the accident does occur, the truck would likely hit another vehicle or a berm or other stationary object resulting in a reasonably serious injury. The element that is most difficult to demonstrate is the third element of the Mathies formula. In order to meet the third element the Secretary must show that the faulty brakes are reasonably likely to lead to an accident. In the instant case, it is close. The mine operator argues that with just one of the brakes inoperable the truck can function adequately and it is unlikely that the trucks will fail to stop. The Secretary, on the other hand, argues that the failure of the one brake on each truck significantly diminishes the operation of the braking system, thereby making it likely that the truck will fail to stop, or that the truck will pull in one direction. In both instances, the Secretary argues that an accident will occur.

Freeport argues that the violation is not S&S for a number of reasons. First, only one of the brakes on each truck was inoperable, and the remaining brakes were in functioning condition and could adequately stop the truck. Second, both trucks drive at a slow speed over roads that have very high berms. Finally, the trucks use the engine brake when traveling downhill, thereby eliminating the need for all service brakes. Freeport argues that the trucks are serviced every 84 days and any condition would be found during that maintenance time. Additionally the drivers do a pre-op safety check of the truck, including a separate check of the air brakes. During the check and operation of the trucks, the drivers of the lube and flatbed trucks did not notice any pull or problem with the brakes as they operated the trucks prior to the citations.

The Secretary argues that, with one brake not functioning on each truck, the entire braking systems of those trucks were compromised. Given the conditions of the two cited brakes, and the fact that the operators of the trucks would be accustomed to the full use of the system when stopping, it is likely that the trucks will be unable to adequately stop at a hard stop or in an emergency. Further the lack of one brake compounds the issue of “brake fade” and the condition of all brakes, which, as observed by Hunt, could lead to the brakes locking up. The trucks, although not as large as a haul truck, carry heavy loads that can slide when the trucks are stopped. The speed limit is 25 to 35 miles per hour, and the mine has a continuum of hills and grades that the trucks travel. The road is shared with haul trucks, dozers, graders and other heavy equipment. As Medina explained, given that the truck operator is accustomed to stopping with the entire brake system functioning, it is likely that, with a hard stop, the truck will go into a skid, affecting the entire braking system. He explained that it is likely that the trucks will skid, or fail to stop within a reasonable distance, thereby resulting in an accident.

The evaluation of the S&S criteria is made assuming “continued normal mining operations.” U. S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The pre-op inspection conducted by the truck drivers did not and would not have discovered the major defect with the brakes. It would have been discovered, most likely, during the 84 day inspection, but the trucks would have been operated until that time. Since the lube truck had been last inspected in March, 2010, and the citation was issued in September, the inspection occurred less frequently than the 84 days that the mine asserts.[2] Therefore, the brake defect would not have been discovered for any number of months, unless discovered while in use, at which time it may be too late.

A number of ALJ’s have found similar violations to be S&S even with a preventive maintenance program in place. In Reading Anthracite Company, 32 FMSHRC309 (Apr. 2010) (ALJ), an S&S and unwarrantable failure violation was upheld for a violation of §77.404(a), where a transmission failed due to a hole in a transmission hose, causing the truck to go out of control, killing the driver. The company had an inadequate preventive maintenance program, and standard operating procedure was for truck drivers to operate their rigs and report any problems they encountered. Id. ALJs have also found brake violations S&S where “the truck . . .travel[ed] over grades of up to nine to twelve percent . . .[,] often . . . with a load of rock.” Nelson Quarries Inc., 30 FMSHRC 254 (Apr. 2008) (ALJ), rev. granted (May 16, 2008). Another ALJ has found that defective service brakes on a Euclid dump truck at a sand and gravel operation constituted an S&S violation of §56.14101(a)(1). Higman Sand & Gravel Inc., 25 FMSHRC 175 (Apr. 2003) (ALJ). The operator's defense, that the heavy truck traveled slowly on soft ground and stopped quickly when power was not applied, was rejected. Id. The violation was S&S because the truck traveled where there were other vehicles and there was a "reasonable possibility" of serious injury. Id. Finally, the Commission upheld a finding of S&S for faulty brakes on a grader because the grader was operated on a hilly, curved road and the equipment operator was killed after he unsuccessfully attempted to stop the grader. Steele Branch Mining, 18 FMSHRC 6 (Jan.1996).

The lube truck and flatbed truck traveled on the roadway with large haul trucks as well as other heavy equipment, including graders and dozers. (Tr. 40, 48). The roads were wet, at least during the first inspection, and the flow of traffic was constant. The trucks are most often heavily loaded and travel throughout the large area of the mine. Given that there are large haul trucks on the mine site, and that the haul trucks may cross paths with, or drive behind, the flatbed truck and the lube truck that were cited, and that the cited trucks travel at speeds of up to 35 mph on gravel roads with grades of up to 10 percent, I find that the lack of a part of the braking capacity is likely to lead to an accident. When the accident occurs, it will be serious and the resulting injury will be serious or fatal. (Tr. 45-46). Based upon the credible evidence, I find the violation is significant and substantial.

c. Negligence

Hunt designated both violations as being the result of moderate negligence. Freeport argues that the negligence should have been designated as “none” or “low.” The argument is based upon evidence that the condition could not be readily seen by the truck drivers, that neither driver noted a problem, and that the mine had a maintenance plan in place which would have discovered the defective brakes.

Part 100 of the Secretary’s regulations sets forth the “criteria and procedures for proposing civil penalties[.]” 30 C.R.F. § 100.1. Section 100.3(d) provides, in pertinent part as follows:

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

30 C.R.F. § 100.3(d). When MSHA assesses a penalty, it “considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Table X of the regulation explains the definitions used by MSHA for each level of negligence. Id. No negligence is defined as “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id. Low negligence is defined as “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances,” while moderate negligence is defined as “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. If there are no mitigating circumstances, the citation is designated as high negligence. Id.

Contrary to Freeport’s argument, I do not agree that the violations at issue should be designated as “none” or “low” negligence. As explained above, the operator is held to a high standard of care in conducting its mining operations. The brake problems should have been known to the mine operator. I credit Hunt’s testimony that the conditions had existed for some time and were easily identifiable. While the brakes’ conditions may not have been noticeable when one conducted the mine’s standard pre-op check, the conditions were plainly recognizable via a simple visual inspection if one looked under the trucks while the brakes were pumped. The condition was only “hidden” to the extent that the mine’s pre-op check ignores conditions that can’t be observed when walking around the perimeter of the truck. As to mine’s argument that the scheduled 84 day program of maintenance is a mitigating circumstance, I note that, given the time between the issuance of the citation and the last recorded maintenance of the flatbed truck, there is some question as to whether this program was even being followed. Finally, the fact that neither driver observed a problem with handling of the truck is not sufficient to mitigate the negligence. I find that Leigh was not credible in his assessment of the brake condition and while Bartlett was a credible witness, it is not shown that she drove the truck with the brakes in the condition observed by Hunt. Accordingly, it would be a stretch to label these mitigating circumstances “considerable.” As such, I cannot agree that the negligence in either of these citations was “low.” The mine should consider a more frequent maintenance program or a broader pre-op brake check. In addition, the drivers should have recognized a problem with the brakes and asked for further brake inspections on these particular trucks. Having considered all of the testimony and the facts presented, I find that the negligence in both instances was moderate.

II. PENALTY

The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties provide in [the] Act.” 30 U.S.C. § 820(i). The Mine Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Mine Act requires, that “in assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i). The history of assessed violations, Sec’y Ex. 22, shows that Freeport has been cited for similar violations six times in the fifteen months preceding the two citations at issue. Freeport is a large operator and the mine has not alleged that payment of the penalty as assessed will inhibit its ability to remain in business. The gravity and negligence of each violation is discussed above and each violation was abated immediately and in good faith. For some reason, not addressed by the Secretary, the proposed penalties were not subject to the penalty criteria but were specially assessed. While the Secretary addressed the penalty criteria to some extent, it was not addressed in a manner that would lead me to believe that the penalty should be anything above the normal standard. While the citations on their face address a history of brake violations, the exhibits and the testimony do not bear out that allegation. I therefore, do not agree with the Secretary’s proposed penalties and reduce and assess the penalties as summarized below:

Citation No. 6587444 $5,000.00

Citation No. 6587446 $5,000.00

III. ORDER

The two citations included in this decision are affirmed as issued. Freeport McMoRan Morenci, Inc. is hereby ORDERED to pay the Secretary of Labor the sum of $10,000.00 within 30 days of the date of this decision.

/s/ Margaret Miller

Margaret Miller

Administrative Law Judge

Distribution:

Daniel Pietragallo, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Michelle Witter, Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202

[1] There are some references in the testimony to the rear brake on the flatbed truck, but the citation indicates that the S-cam lever was broken off of the left front drive axle. The truck has a drive axle on both rear brakes and the front brakes. The confusion occurs because the inspector was describing the front brakes on the bed of the truck, not the brakes on the cab so the operator referred to the brakes as being located in the rear. (Tr. 52).

[2] If the 84 days is determined by the number of days the truck is operated, the timing for the maintenance may have been correct. However, the testimony does not indicate how the 84 days was counted by the mine.