Federal Mine Safety and Health Review Commission

Appearances: Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, TN For the Petitioner

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, Lexington, KY For the Respondent

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 Trivette Trucking (“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 $140,000 for two alleged violations of mandatory safety standards at Premier Elkhorn Coal Company’s (“PE”) PE Southern Pike County Mine (“Mine”). The Secretary contends that each of these violations was significant and substantial, involved high negligence, and was an unwarrantable failure to comply with mandatory safety standards. Respondent challenges both the occurrence of the violations and its alleged negligence.

On January 22, 2013, I issued a decision in Premier Elkhorn Coal Co., KENT 2011-827. Trivette was a trucking contractor for PE, hauling coal from the coal pit to the processing plant. KENT 2011-827 (“PE case”) concerned a fatal accident to Steve Johnson, one of Trivette’s employees, who was hauling coal at the Mine. MSHA issued two citations against PE, alleging in one that the truck was overloaded, and in the other that its brakes were defective. At the same time the citations against PE were issued, MSHA issued substantively identical citations to Trivette.

My decision in the PE case, which followed a two day hearing in Pikeville, Kentucky on December 14 and 15, 2011, and the submission of post-hearing briefs by the parties, vacated the citations against PE and dismissed the case. The Secretary filed a petition for review which was accepted by the Commission on February 17, 2013. KENT 2011-1223 initially was assigned to Judge Bullock, who scheduled a hearing for February 26-27, 2013. Since I had just issued a decision regarding the same accident, it was decided to reassign this case to me. Accordingly, Judge Bullock canceled the hearing, and the case was transferred to me on February 13th.

Following a conference with counsel, it was agreed that this case would be decided on cross-motions for summary decision, with reliance on the record in the PE case. The parties filed joint stipulations and cross-motions for summary decision.

But in reality, this is not a summary proceeding. It actually is a litigated case on a stipulated record. That record consists primarily of the transcript and exhibits from the PE case, copies of which I have included in the record in this case. In addition, the parties submitted a list of 19 stipulations, which I have marked as Joint Exhibit 2 and admit into evidence.

Finally, the Secretary enclosed many documents with the motion for summary decision. Most of these are in the record of the PE case, and there is no reason to have duplicate exhibits in this record. Those that are not, and which should be a part of this record, are the orders issued against Trivette, which were marked as GTX 4 (Order 8230314) and GTX 5 (Order 8230315). Also, the Secretary submitted a copy of his Petition for Discretionary Review in the PE case (GTX 3), and a copy of his brief to me in the PE case (GTX 13). Since briefs are not evidence, they will not be admitted into evidence in this case. However, they will be retained in the file as any brief would to illustrate the Secretary’s position in these matters. Finally, the Secretary submitted several exhibits which I had excluded from evidence in the PE case. They will be discussed infra.

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. On the morning of December 12, 2009, Mr. Johnson's truck was the fifth truck loaded.

5. After being loaded, on the morning of December 12, 2009, 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. The service brakes on Mr. Johnson’s truck were defective.

11. The broken worm gear in the steering gear box was caused by the accident, rather than having caused the accident.

12. On the morning of the accident, MSHA received a hazardous condition complaint about the general condition of Trivette Trucking fleet of trucks.

13. Trivette Trucking is a contractor for Premier Elkhorn Coal Company.

14. Trivette Trucking’s operations affect interstate commerce.

15. Premier Elkhorn Coal Company contracted Trivette Trucking to haul coal at PE Southern Pike County [Mine]. 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).

16. Copies of the violations at issue in this proceeding were served on Trivette Trucking by an authorized representative of the Secretary.

17. Trivette Trucking timely contested the violations.

18. Trivette Trucking 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 Trivette Trucking’s ability to remain in business.

Trivette Trucking is located in Virgie, Kentucky. It is an independent contractor providing coal hauling services to PE and other coal companies. The PE Southern Pike County Mine is located in Myra, Kentucky, and is a surface coal mine. TR 24. Coal from the coal pit was hauled by contractors, including Respondent, to the preparation plant for processing, but only on Saturdays. TR 24-26. The preparation plant was located about six to seven miles from the coal pit. TR 27. Steve Johnson was the Chief Mechanic for Respondent (TR 90), and as part of his duties for Respondent he also drove a coal truck.

Early on the morning of Saturday, December 12, 2009, Johnson drove a red 2006 International Paystar coal truck, number P419, from Respondent’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 PE (TR 124). After his truck was loaded with coal, Johnson, over the CB radio, stated that he was having trouble with his truck’s power steering. TR 110-12; 139-40. Johnson pulled his truck over, and he and another coal truck driver, Carl Collier, then checked out the truck and did not find any leaks in the steering system. JX 2, at ¶5; 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 PE’s Manager of Safety and Environmental Affairs, 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” onto the driver’s side. TR 44. Johnson was killed.

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 PE 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; David Wilder; and several miners TR 30, 33, 35. Apparently, no representative from Respondent was present. Howell talked to some of the miners, including the driver of the truck which followed Johnson’s and who discovered the accident, 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.

MSHA issued two orders against Respondent following its investigation of the accident. Order No. 8230314 alleges that:

[T]he driver of the . . . truck . . . 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 loaded truck was 37,600 pounds over the maximum GVWR [gross vehicle weight rating] recommended by the manufacturer. Management was aware that the trucks were routinely overloaded and did nothing to stop this practice.

The order states that the safety standard violated was 30 C.F.R. §77.1607(b), which states: “Mobile equipment operators shall have full control of the equipment while it is in motion.” It adds that the violation resulted in a fatality, was significant and substantial (“S&S”), and was high negligence. Finally, the violation was alleged to have been an unwarrantable failure to comply with a mandatory safety standard. A $70,000 penalty was assessed for the violation.

Respondent contends that the Secretary failed to prove that the truck was overloaded. Further, Respondent contends that even if the Secretary proved that the truck was carrying a load in excess of the GVWR, the Secretary has not proven that the weight of the truck’s load was hazardous or contributed to the accident.

Order No. 8230315 alleges that:

The 2006 International Paystar . . . haul truck . . . was not 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 compromise the braking capacity.

2. The brake on the right 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 tandems.

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 order 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. Finally, it was alleged to have been an unwarrantable failure. MSHA also assessed a $70,000 penalty for this violation.

Respondent contends that the Secretary has failed to prove that the truck’s brakes, though defective, were inadequate to stop the truck. In addition, Respondent alleges that it was not negligent even if the brakes were inadequate.

Order 8230314

Inspector Howell based her conclusion that Johnson’s truck was overloaded 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, Order 8230314 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, any one of which would be sufficient by itself, to find that the Secretary has failed to prove this key element of the case.

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 at the Mine 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. At the hearing in the PE case, 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. TR 70-71. The Secretary has also submitted this evidence here, as Proposed Exhibit GTX 6 to its motion for summary decision. I see no reason to change my ruling. For as I stated in the PE decision, the other four trucks were Mack trucks, not International trucks as Johnson’s was. 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). Nor was any evidence presented regarding whether these Mack trucks had been modified to carry heavier loads. 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. For these reasons, even if I had admitted this document into evidence, I would not have given it any weight.

At the PE hearing I also excluded evidence of the weight of loads Truck P419 hauled on prior dates, and the Secretary has re-submitted this evidence in this proceeding as Proposed Exhibits GTX 7-10 to his motion. I reiterate my ruling in the PE case that the Secretary failed to establish an adequate foundation for these exhibits, and accordingly they will not be considered here as evidence of the weight that truck was hauling on December 12, 2009. Again, had I admitted these documents into evidence, I would not have given them any weight. 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 find that the Secretary failed to prove that Johnson’s truck was overloaded 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 is overloaded and therefore hazardous clearly is insufficient to establish that Johnson’s truck was overloaded.

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 Kentucky relate to the wear trucks cause to the roads, not to how much weight trucks can carry safely. See, e.g., Ky. Rev. Stat. 189.222(1)(2009). Moreover, if the GVWR is intended to be a per se limit by the manufacturer on the load a truck may carry safely, and is a reliable measure of that limit, it is reasonable to assume that MSHA would have promulgated a safety standard prohibiting the operation of mining trucks hauling loads in excess of the GVWR. That it has not done so, but has promulgated hundreds of pages of regulations governing mine safety to the nth degree including numerous standards governing vehicular safety, speaks volumes regarding the use of the GVWR as a safety standard. In addition, modifications to a truck subsequent to its manufacture can substantially increase the loads it is capable of hauling. Things that can cause a truck’s capacity to increase include relatively routine items as changing a truck’s tires and springs, and major modifications such as replacing an axle. TR 490-91, 496.

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.

There is a third independent factor mandating a finding that the Secretary failed to prove that Johnson’s truck was overloaded. 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 in the PE case testified that 120,000 pounds was not an unsafe load for Johnson’s coal truck to haul. 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. Medina testified that Johnson’s truck was capable of hauling a load of 120,000 pounds since he had hauled loads of that weight in that truck previously. TR 313. PE’s expert, Steve Rasnick, a highly experienced mechanic, also testified that the truck would have been capable of hauling that heavy a load. TR 522. As Rasnick put it, “It’s a coal truck. It was built to haul. . . . [T]hat truck was well capable of handling it [a 120,000 pound load].” Id. Further, Respondent and PE had excellent records regarding safety in 2009, reporting no accidents of any kind resulting in lost work days due to injury that year prior to the one that killed Johnson. TR 102-05. Finally, there does not appear to have been any incentive for PE to load Respondent’s trucks with more coal than they could haul safely. PE paid Respondent by the amount of coal hauled. TR 187. Therefore, it does not appear that PE would profit by overloading Respondent’s trucks. It would have cost PE the same whether trucks hauled 82,600 or 120,000 pound loads to get the coal from the Mine to the preparation plant. I find that the evidence fails to prove that Johnson’s truck was carrying a load that was too heavy for it to haul safely.

Accordingly, the Secretary has failed to prove that the truck which Johnson was driving on the morning of December 12, 2009, was overloaded, i.e., hauling a load that was heavier than it could safely handle.

In my decision in the PE case, I held that since the crux of the Secretary’s case regarding this violation was that Johnson lost control of his truck because it was overloaded, and the evidence did not support this contention, the citation had to be dismissed. I cited Judge Gill’s decision in Clintwood Elkhorn Mining Co. v. Secretary of Labor, 32 FMSHRC 1880 (ALJ 2010), in which Judge Gill similarly concluded that the GVWR cannot be used to determine that a truck is overloaded. Accordingly, he dismissed an order alleging a violation of §77.1607(b) because “it is clear that the gravamen of the investigation and subsequent actions is the alleged overloading of trucks.” Id. at 1890 n.8. The Secretary petitioned for review of Judge Gill’s decision, and the Commission granted the petition. Significantly, the Secretary did not appeal Judge Gill’s holding that the Secretary failed to prove that the truck was overloaded. In regard to the alleged violation of §77.1607(b), the Secretary’s appeal was limited to whether, despite failing to prove overloading, a violation of that standard nevertheless was established. In a decision issued on February 25, 2013, subsequent to my decision in the PE case, the Commission reversed Judge Gill’s holding, stating:

We conclude that the judge erred in his interpretation of 30 C.F.R. § 77.1607(b). In order to establish a violation of section 77.1607(b), the Secretary must only demonstrate, by a preponderance of the evidence, that the operator failed to maintain full control of a piece of equipment while it was in motion. Nothing in the language of the standard requires the Secretary to prove a causal or contributing factor for the loss of control, as suggested by the judge.

Clintwood Elkhorn Mining Co., KENT 2011-40-R et al., slip op. at 6 (Feb. 25, 2013). It was not controverted in Judge Gill’s case that the driver had failed to 1 maintain control of his truck, nor was it controverted here that Johnson failed to maintain control of his truck. Accordingly, I hold that the Secretary has proven a violation of §77.1607(b).

Since a violation has been proven, I must address the gravity of the violation and Respondent’s degree of negligence, and assess an appropriate penalty. The first two parts of the determination of gravity are simple, since the injury occurred and it was a fatality. Also, there does not seem to be a dispute over the number of persons affected, which is one – the driver.

That leads to consideration of whether the violation was significant and substantial (“S&S”), as is alleged by the Secretary. Respondent contends that the violation was not S&S.

Thirty U.S.C. § 814(d)(1) provides:

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this [Act].

The Commission and several courts of appeals have agreed that four conditions must be met to find that a violation is “significant and substantial”:

[T]he underlying violation of 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.

Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.1988); Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075 (D.C.Cir.1987).

It would seem that any violation of §77.1607(b) would be S&S. For if a mobile equipment operator loses control of the equipment, it would create a danger to safety with a reasonable likelihood of a reasonably serious injury. This case is a prime example. Johnson lost control of his truck, which ultimately caused it to crash into a berm and turn over onto its side. Although Respondent argues that Johnson probably would not have been killed, and speculates that he might not have suffered an injury at all, had he stayed in the cab, it cannot seriously be argued that there was no reasonable likelihood of a reasonably serious injury to the driver when a loaded, out of control coal truck turns over. Therefore, I hold that the violation was S&S.

The next issue is negligence. The Secretary contends that Respondent was highly negligent, and engaged in aggravated conduct constituting an unwarrantable failure to comply with a safety standard, because “management was aware that the trucks were routinely overloaded and did nothing to stop this practice.” GTX 4. Respondent argues that it was not negligent because “[t]here was no proof of any causal factor that could or should be attributed to Trivette Trucking as to why the driver of the truck lost control.” Respondent’s Motion at 10. Since I found that the Secretary failed to prove that the truck was overloaded, the Secretary’s contentions regarding Respondent’s negligence and aggravated conduct must be rejected. Therefore, I conclude that Respondent was not negligent, and did not engage in an unwarrantable failure to comply with a safety standard, in regard to its violation of §77.1607(b).

Finally, the assessment of a penalty must be considered. The Secretary assessed a penalty of $70,000 for this violation. The assessed penalty was premised on proof of high negligence and an unwarrantable failure due to overloading of Johnson’s truck. Overloading was the crux of this case regarding the violation of §77.1607(b). The Secretary has not addressed the amount of a reasonable penalty in the absence of the truck being overloaded.

Section 110(i) of the Mine Act lists the factors to be considered in assessing a penalty. These factors are:

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

First, there is no evidence that Respondent has ever been cited for a violation of §77.1607(b), let alone that a violation of that standard has ever been proven. Second, since the parties stipulated that the proposed penalties would not affect Respondent’s ability to remain in business, I find that any penalty assessed for this violation which does not exceed $70,000 would not be inappropriate in relation to Respondent’s size. Next, I have found that Respondent was not negligent, but the violation resulted in a fatality and was S&S. The final factor appears inapplicable to the facts of this case.

The key point regarding this order is that although the Secretary has proven a violation of §77.1607(b), the Secretary has not shown that there was anything the Respondent should have done that would have prevented the accident. As was pointed out above, the Secretary’s case was premised on the allegation that Johnson lost control of his truck because it was overloaded, and the $70,000 penalty was based on the allegation that Respondent was aware that its trucks were routinely overloaded and did nothing about it. In failing to prove these contentions, the basis for the Secretary’s special assessment no longer applies. However, since a fatality occurred and the violation was S&S, I will assess a penalty of $1,000 for the violation of §77.1607(b).

Order 8230315

The parties have stipulated that the service brakes on Johnson’s truck were defective. Nevertheless, Respondent contends that the truck’s brakes were adequate, and therefore it was not in violation of §77.1605(b). Also at issue is the Secretary’s contention that these defective brakes contributed to the accident which resulted in Johnson’s death.

Medina testified that the braking system on Johnson’s truck was thoroughly inspected as part of the accident investigation. Medina testified that the brake drum on the right of the rear axle did not function, and was in that condition at the time of the accident. TR 285-86. In addition, in his report he stated that he found some dried grease on only the right front brake drum, but the left front brake drum was dry. GX 25, at 7. However, he testified at the hearing that he found grease on the front linings, which would have “greatly reduce[d] the braking capability . . . .” TR 287. This discrepancy is not explained. He also found that the three rear brake drums they were able to inspect (one wheel could not be removed from the truck) were all worn past the point where they should have been replaced. TR 288-89; GX 25, at 9. Finally, he found bluing in some of the brake drums, which he stated is symptomatic of the brake drums having gotten very hot at some point. TR 291-92. However, he admitted that once brake drums return to their normal temperature, bluing is insignificant. TR 295. He stated that all of these defects existed at the time of the accident. TR 295-96.

Medina believes that even if the truck was not overloaded, the condition of the brakes would have created an unsafe situation. TR 322-23. He concluded that the accident occurred because the brake defects caused the driver to lose control of the truck. TR 323-24.

However, Medina admitted that the accident could have been caused by other factors. For one thing, it is possible that the driver missed a gear and accidentally shifted into neutral, which Medina testified is easy to do (TR 321, 336-37). He stated that “I don’t have conclusive evidence of that. Just suggest – the circumstances suggest it.” TR 342. If the truck was in neutral, the truck would pick up speed on the downgrade and the Jake brake (see infra) would not operate. TR 319, 321. Medina also posited that Johnson may have been driving too fast (TR 335-37, 403); and it is his opinion that the truck was traveling too fast for the defective brakes to stop it. TR 336-37. He bases this on how far Johnson’s truck slid after it hit the berm. TR 330, 335-36. But even if he is right that the distance the truck slid after it hit the berm shows that it was traveling at excessive speed when it crashed, Medina fails to take into account the obvious point that if the truck’s brakes were defective, leading to the accident, Johnson’s truck doubtless would have been traveling overly fast at the time it impacted the berm. That does not mean that the truck was going overly fast when Johnson lost control of it. Further, I find it significant that neither the report prepared by the accident inspector, Debra Howell (GX 4), nor Medina’s report, mention that the truck was being driven at an excessive rate of speed at the time of the accident or that the speed at which the truck was being driven caused the accident. There is no indication in the record of when or why Medina changed his mind to conclude that speed had an impact on the accident. Accordingly, I give no weight to Medina’s testimony that excessive speed played a role in causing the accident.

Medina also had a change of heart regarding the condition of the parking brake. His report does not note any problems with the parking brake (see GX 25, at 8-9), a finding which was echoed by Howell in her accident report. GX 4, at 5. Yet Medina testified at the hearing that 25% of the parking brake system was not functional. Again, there is no explanation for this inconsistency.

PE’s expert, Rasnick, disagreed with Medina on several points. For one thing, he believes that the amount of grease Medina found on the brake drum would not have rendered the brake unsafe. He testified that brake drums have to be saturated with oil or grease before they become unsafe. TR 468-69. He also testified that the bluing found on the brake drums was of no significance. He said that what matters is whether there are heat stress cracks inside the drums. Medina admitted there were none. TR 289. Rasnick also stated that the bluing could have occurred months ago. TR 470-71. Next, Rasnick disputed Medina’s allegation that excessive truck speed contributed to the accident. He stated that Medina’s report (GX 25) indicates that the truck was in fourth gear, and in that gear the truck could not have been going more than 14 miles per hour. TR 472; see also GX 25, at 2. But he is incorrect in saying that Medina’s report shows that the truck was in fourth gear, as the transmission was found to be in neutral after the crash. GX 25, at 2. However, since Medina pointed out that the gear may have been pushed into neutral as a result of the accident, it could have been in fourth gear before the crash; and Medina concedes as much. TR 340. Regardless, the truck was found to be in “low range and low split.” TR 340.

That Johnson’s truck was not traveling at an excessive rate of speed at the time it crashed is also the opinion of PE’s safety manager, David Wilder. Contrary to Medina’s testimony, Wilder stated that Johnson’s truck did not go very far once it struck the berm and turned over. TR 428-29. Further, Wilder pointed out that the cab of the truck was undamaged, that even the glass and mirrors were intact. TR 426. Based on these factors, he believes the truck was traveling no more than 10 miles per hour when it crashed. TR 432.

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. These 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 brake 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.

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. Id. Low power steering fluid could have caused a reduction in the steering performance or “hard” steering, although by itself it would not have caused the steering to fail. Id. at 4; GX 26, at 3. Nevertheless, that the seals were installed backwards indicates that maintenance of the steering system was being performed incorrectly, which could have caused the steering system to fail on December 12, 2009.

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. 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. 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 his due, the cause of the accident in this case is far from straightforward, and since the truck’s brakes were deficient it is possible that they 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 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 way this accident makes the most 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 condition at the time of the crash, ⁰ 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 Medina (TR 385-91), and I find Rasnick’s testimony regarding this document confusing. Accordingly, I cannot find that the accident resulted from the truck going into idle mode even though it is consistent with the evidence of the accident. Yet it is another possible cause of the accident to consider.

Based on the foregoing, I conclude that the Secretary has failed to prove that Johnson’s truck crashed due to defective brakes.

However, the Secretary has shown that there were defects in the service brakes on Johnson’s truck. For one of the drum brakes 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.” Id at 2284.

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 at best 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 Medina’s opinion due to his demonstrated lack of expertise, inconsistency between his report and testimony and in his testimony itself, and generally poor reasoning.

Therefore, I find that the Secretary has failed to prove that the brakes on Johnson’s truck were not adequate. Accordingly, Order No. 8230315 must be vacated. ¹

ORDER

IT IS ORDERED that Order No. 8230315 is VACATED.

IT IS FURTHER ORDERED that Order No. 8230314 is modified from high negligence to no negligence, and Respondent shall pay a penalty of $1,000 within 30 days of this decision.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution:

Jennifer Booth Thomas, Esq., U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509