FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

July 19, 2013

DECISION

Appearances:  J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville, Tennessee, for Petitioner;

                        Michael D. Clements, Kingsport, Tennessee, for Respondent. 

Before:            Judge Bulluck

            This case is before me upon a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration (“MSHA”), against Bresee Trucking, (“Bresee”) pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815. The Secretary seeks a civil penalty in the amount of $11,306.00 for one alleged violation of her mandatory safety standards.

            A hearing was held in Kingsport, Tennessee. The following issues are before me: (1) whether Bresee violated 30 C.F.R. § 77.404(a); (2) whether the violation was significant and substantial; and (3) whether Bresee was moderately negligent in violating the standard. The parties’ Post-hearing Briefs are of record.

            For the reasons set forth below, I AFFIRM the citation, as issued, and assess a penalty against Respondent.

I. Stipulations

            The parties stipulated as follows:

            1. At all times relevant to the proceeding in Civil Penalty Docket KENT 2011-400, Respondent was an independent contractor providing services to Old Virginia Services, LLC, in Harlan County, Kentucky, Mine ID Number 15-16054. Respondent’s Contractor ID is GTY.

            2. This preparation plant is a mine, as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(3)(h).

            3. At all times relevant to the proceeding in Civil Penalty Docket KENT 2011-400, products of this mine entered commerce, or the operations or products thereof affected commerce within the meaning and scope of Section IV of the Mine Act, 30 U.S.C. § 803.

            4. Respondent worked approximately 200,197 hours in the year 2009.

            5. A copy of the citation at issue in this proceeding was served on Respondent by an authorized representative of the Secretary.

            6. Respondent timely contested the citation.

            7. Respondent 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.

            8. The proposed penalty will not affect Respondent’s ability to remain in business.

            9. The proposed penalty is appropriate to the size of the business of the operator.

            10. The operator’s history of previous violations is shown in the document entitled R-17.

            11. The operator abated the violation it was cited for herein in a timely manner and in good faith.

            12. At the mine, mine identification number 15-16054, on September 29, 2010, the left rear brake chamber of the Mack maroon tandem coal truck, number 24, Kentucky tag number 232705, had an audible air leak.

Sec’y Br. at 1-2.

II. Factual Background

            On September 29, 2010, Bresee provided trucking services to Old Virginia Services, LLC, operator of the No. 1 Plant (“Plant”) in Harlan County, Kentucky, transporting approximately 150 loads of coal from the Yellow Rose and Clover Lick mines to the Plant for processing. Tr. 12, 164-65. On that day, MSHA Inspectors Jerry Hensley, Argus Broch, Joe Lawson, George Jackson and Charlie Ramsey conducted a regular inspection of coal trucks entering the Plant. Tr. 28.

            After the inspectors arrived at the Plant, Hensley pulled over the No. 24 Mack truck for inspection. Tr. 33; Ex. P-1. He discussed the condition of the truck with the driver, Troy Weaver, and blocked the tires to prevent them from moving once the parking brake was released. Tr. 32-33. Hensley and Ramsey then instructed Weaver to engage the brake by depressing the brake pedal while they walked around the outside of the truck. Tr. 34. As they circled the truck, the inspectors heard a hissing noise which Hensley identified as an air leak. Hensley walked back to the operator’s cab, looked inside, and saw that when Weaver engaged the brake, the brake pressure gauge indicated that the braking system lost 20 pounds of air pressure in 27 seconds. Tr. 35. When the inspectors looked under the truck at the slack adjusters on each side of the front axle they saw that when Weaver depressed the brake pedal, the slack adjuster for the left front brake moved further than two inches away from the brake chamber. Tr. 38, 40. They then looked at the slack adjuster for the right rear brake on the rear axle and saw that it also moved further than two inches away from the brake chamber when the pedal was depressed. Tr. 46. Hensley proceeded to measure the distance between the brake chambers and the slack adjusters without depressing the brake pedal and then, after depressing the pedal, the same distance on both the left front and right rear brakes. Tr. 178-80; Ex. P-12. When the pedal was depressed, Hensley found that the slack adjuster for the left front brake moved three inches away from its brake chamber, and the slack adjuster for the right rear brake moved two and one-quarter inches away from its brake chamber. Tr. 56-58. Hensley then informed Weaver of the air leak and defective slack adjusters, asked him to take the truck out of service until it could be repaired, and issued a citation to Bresee for not maintaining the truck in safe operating condition. Tr. 61; Ex. P-1.

III. Findings of Fact and Conclusions of Law

            Inspector Hensley issued 104(a) Citation No. 8350007 alleging a “significant and substantial” violation of section 77.404(a) that was “reasonably likely” to result in an injury that could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by Bresee’s “moderate” negligence. The “Condition or Practice” is described as follows:

The Mack maroon tandem coal truck, Kentucky tag #232705, Co. #24 is not maintained in safe operating condition. When checked, the left rear brake chamber has an audible air leak, the slack adjuster for the right rear brake on the back tandem measures 2.25 inches when the brake pedal is depressed and the slack adjuster for the left front brake on the front tandem measures 3 inches when the brake pedal is depressed. This truck hauls heavy loads on steep grades. The operator removed the truck from service until the cited conditions could be repaired.

Ex. P-1. The citation was terminated after the left front tandem slack adjuster was properly adjusted, the right rear brake on the back axle was changed, and the air leak was repaired.

            1. Fact of Violation

            In order to establish a violation of one of her mandatory safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

            Hensley opined that truck brakes may not work properly without the full amount of air pressure available, and that during normal use, the leak could expand and rupture the chamber which would render the left rear brake completely inoperative and incapable of stopping the truck. Tr. 35-37. He surmised that the air leak was coming from the service brake chamber rather than the parking brake chamber, since the parking brakes were not activated during the inspection and the gauge in the cab indicated that air was being lost from the service brake system. Tr. 182. According to the North American Standard Vehicle Out-of-Service Criteria (“Criteria”) used by MSHA, for the No. 24 truck with a Type 30 clamp brake chamber, the brake adjustment limit is two inches. Ex. P-13 at 15; Tr. 40-41. Hensley testified that if the slack adjuster moves further than two inches away from the brake chamber, the brake is defective under the Criteria and may not work properly. Tr. 44-45; Ex. P-3 at 15. He added that if the brake on one side of the axle is beyond the adjustment limit and the brake on the other side is within the limit, the brakes will apply unevenly on that axle, which could cause the driver to lose control of the truck. Tr. 62-63. Additionally, the out-of-adjustment slack adjusters indicated that the brake shoes were being worn, which could lead to wear on the brake drum or the s-cam falling under the brake shoes, rendering the brake totally inoperative. Tr. 63-66. Despite these defects, Hensley testified, Weaver told him that the truck had no defects, and none was recorded in his Driver’s Vehicle Inspection Report. Tr. 103-04; Ex. R-3. Given that the truck is driven on steep and winding roads, he opined that it would be unsafe to operate it with two defective brakes and an air leak, especially since the Criteria provide that when two of its six brakes are defective the truck should be taken out of service. Tr. 58-59, 67, 166; Ex. P-3 at 12. Hensley also testified that the conditions had been present for at least a day, and that Bresee should have observed and corrected them in a pre-operational exam. Tr. 70.

            Dennis Hedrick served as the supervisor of Bresee’s Kentucky division, and had conducted maintenance on coal trucks for 27 years at the time of the inspection. Tr. 106-08. Contrary to Hensley’s testimony, Hedrick stated that when he looked at the truck after Hensley’s inspection, he found that air was leaking out of the parking brake chamber rather than the service brake chamber and, therefore, the brake’s stopping power was unaffected. Tr. 110-12, 115. Hedrick recalled that the truck weighed 42,000 pounds, hauled 30 to 42 tons of materials, and operated on windy roads in the dark of night. Tr. 164, 166-67. He testified that Bresee had upgraded the truck by installing a supplemental brake system, a driveline brake, which enhanced the truck’s braking power when it descended a hill, and that the supplemental brake was unaffected by the air leak. Tr. 138-43; Ex. R-5. However, he admitted that he would not operate the truck given the brake defects that Hensley found, nor would he want anyone else to do so with the standard brake system disabled, even if the supplemental brake were operational. Tr. 116, 139. Hedrick also testified that the truck would have been inspected for air leaks and brake defects once a week, and that the brakes would have been adjusted twice weekly by a mechanic. Tr. 159-61.

            I find Hensley’s testimony credible, that the air leak in the service brake chamber and the extended slack adjusters prevented the brakes from engaging properly, which could cause the truck to skid off-road or crash. Given the treacherous conditions in which the truck carries heavy loads, a loss of braking capacity seriously compromised its safe operation, irrespective of the supplemental brake system, which Hedrick admitted was insufficient assurance that the truck would stop safely. Based on the air leak and the slack adjusters out of adjustment, I conclude that the Secretary has proven that Bresee violated section 77.404(a).

            Given that the evidence indicates that these conditions had existed for at least a day, Bresee should have detected and corrected the brake defects, especially since the brake pressure gauge registered a dramatic loss of pressure when the brakes were engaged, and the air leak was audible to persons in close proximity to the truck. However, while installation of the supplemental brake system does not relieve Bresee of its obligation to maintain the primary system in safe operating condition, it does reflect concern for the safe operation of the truck and the safety of its driver. Therefore, I find that Bresee was moderately negligent in violating the standard.

            2. Significant and Substantial

            In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is “significant and substantial” (“S&S”) under National Gypsum, 3 FMSHRC 822 (Apr. 1981): 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). In U.S. Steel Mining Company, the Commission provided further guidance on the third element:

             We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” (citation omitted). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial.

U.S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985) (emphasis added).

             The fact of violation has been established, and the violation contributed to the truck driver’s inability to stop his vehicle safely. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious.

            Hensley testified that if the truck were to travel over a berm, impact a high wire or collide with a vehicle, the driver would likely suffer catastrophic crushing injuries to his arms, legs and chest. Tr. 68-69. On the contrary, Hedrick argued that the supplemental brake allowed the driver to stop the truck even if the primary braking system failed. Tr. 139. The Commission has held that, in order to satisfy the third element of the Mathies test, the Secretary must prove that the hazard contributed to by the violation will be reasonably likely to cause injury. The Secretary need not prove a reasonable likelihood that the violation, itself, will cause injury. Musser Eng’g Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). I find that a truck weighing 42,000 pounds and carrying 30 to 42 tons of material, colliding with another vehicle or sizeable object or leaving the road and falling down an embankment, is reasonably likely to result in the driver sustaining a wide range of serious injuries such as lacerations, broken bones and head trauma, as well as crush injuries and even death. Therefore, I conclude that the violation was S&S.

IV. Penalty

            While the Secretary has proposed a civil penalty of $11,306.00, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).

            Applying the penalty criteria, I find that Bresee is a medium-size operator, with a significant history of previous violations that is an aggravating factor in assessing an appropriate penalty. Stip. 4; Ex. P-11. As stipulated, the proposed civil penalty will not affect Bresee’s ability to continue in business, and Bresee timely abated the violation in good faith. Stip. 8, 11. The remaining criteria involve consideration of the gravity of the violation and Bresee’s negligence in committing it. These factors have been discussed fully. Therefore, considering my findings as to the six penalty criteria, the penalty is set forth below.

            It has been established that this serious violation of section 77.404(a) was reasonably likely to result in an injury that could reasonably be expected to result in lost workdays or restricted duty, that it was timely abated, and that Bresee was moderately negligent. Therefore, I find that a penalty of $11,306.00, as proposed by the Secretary, is appropriate.

ORDER

             ACCORDINGLY, Citation No. 8350007 is AFFIRMED, as issued, and it is ORDERED that Bresee Trucking PAY a civil penalty of $11,306.00 within 30 days of the date of this Decision.

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

Distribution:

J. Malia Lawson, Esq., U.S. Dept. of Labor, Office of the Solicitor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219

Michael D. Clements, 408 A Manor Drive, Kingsport, TN 37660

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