Missouri Rock, Inc.

Plain-English summary

MSHA cited Missouri Rock after inspectors found that the wheel brakes on three tractor-scrapers could not stop the equipment, even though the scraper bowls could be dropped to the ground. The Commission held that the cited standard required adequate wheel or service brakes and that the alternative stopping method did not satisfy the standard in every operating situation. It affirmed the judge's findings that the three violations were significant and substantial and left the $2,000 total penalty in place. Commissioner Doyle dissented, concluding that the record did not support limiting the standard to service brakes.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9003
• Outcome: Three brake citations and the $2,000 total civil penalty were affirmed.
• Key point: An alternative way to stop mobile equipment does not replace adequate service brakes when the safety standard requires brakes capable of stopping the equipment in reasonable operating conditions.

Full text (FMSHRC public release)

CCASE:
MSHA V. MISSOURI ROCK
DDATE:
19890203
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                            February 3, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) Docket No. CENT 8-65-M

  v.

MISSOURI ROCK, INC.

BEFORE: Ford. Chairman; Backley. Doyle. Lastowka and Nelson,
Commissioners

               DECISION

BY: Backley, Lastowka and Nelson, Commissioners

This civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977. 30 U.S.C. $ 801 et seq.
(1982). involves three citations issued to Missouri Rock, Inc.
("Missouri Rock") alleging "significant and "substantial"
violations of 30 C.F.R. $ 56.9003 for using Caterpillar 631C
tractor-scrapers ("scrapers") without adequate brakes at Missouri
Rock's Plant Co. 2. 1/ Commission Administrative Law Judge James A.
Broderick determined that Missouri Rock violated section 56.9003 by
failing to provide adequate brakes on the three cited scrapers and
assessed civil penalties totaling S2.000.00. 10 FMSHRC 583 (April
1988)(ALJ). We subsequently granted Missouri Rock's petition for
discretionary review. For the following reasons, we affirm the
judge's decision.

Missouri Rock's plant No. 2 is a limestone quarry located
in Clay County, Missouri. Missouri Rock uses three scrapers to
remove the overburden (soil and unconsolidated rock) that overlies
the limestone deposit. Each scraper is equipped with a large bowl,
often called the pan, that scrapes the ground and scoops up the

Page 2

overburden into the bowl as the scraper moves forward. An empty
scraper weighs approximately 35 tons, while a scraper with a bowl
fully

1/ Section 56.9003. a mandatory safety standard for surface metal and
non-metal mines, provides:

 Mobile equipment brakes.

 Powered mobile equipment shall be provided with
 adequate brakes.

Page 3

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loaded with overburden weighs over 70 tons. The scraper operator
can raise and lower the hydraulically operated bowl and can exert
positive pressure against the ground with the bowl by means of a
lever in the operator's compartment. Each scraper is equipped with
wheel brakes, often called service brakes, that are activated with a
pedal in the operator's compartment.

On February 3, 1987, Eldon Ramage, an inspector with the

Department of Labor's Mine Safety and Health Administration ("MSHA")
conducted an inspection of Missouri Rock's Plant No. 2. During this
inspection, Inspector Ramage requested that the operator of a scraper,
identified by Missouri Rock as Unit No. 643, pull the machine forward
and upon signal activate the brakes. The scraper operator dropped
the bowl to the ground using the quick release lever and the scraper
stopped. The inspector then directed the operator to stop the vehicle
by using the wheel brakes. The scraper operator was unable to stop
the scraper with the wheel brakes. This operator told the inspector
that there was no air pressure to operate the wheel brakes. The
inspector issued Citation No. 2846910 under section 104(a) of the Act.
30 U.S.C. $ 814(a), charging a violation of 30 C.F.R. $ 56.9003 for
failure to provide adequate brakes on powered mobile equipment. The
citation required that the service brakes be repaired by February 4,
1987. On February 20, 1987, the inspector modified the citation by
changing the likelihood of an injury designation from "Unlikely" to
"reasonably likely" and designating the violation as being of such a
nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard.

On February 25, 1987, Inspector Ramage returned to the mine.
He asked that scraper No. 643 be tested and again found that the
wheel brakes did not stop the scraper. He issued a section 104(b)
order of withdrawal for failure to abate the previously cited
violation. 2/ He also requested that the wheel brakes on the other
two scrapers be tested. He found the wheel brakes to be inadequate
on each and issued Citation Nos. 2846916 and 2846917 under section
104(a) of the Act charging significant and substantial violations of
the same safety standard.

2/ Section 104(b) of the Act , 30 U.S.C. $ 814(b), states:

          If, upon any follow-up inspection of a coal
 or other mine, an authorized representative of
 the Secretary finds (1) that a violation described
 in a citation issued pursuant to subsection (a)
 has not been totally abated within the period of

Page 4

time as originally fixed therein or as subsequently
extended, and (2) that the period of time for the
abatement should not be further extended, he shall
determine the extent of the area affected by the
violation and shall promptly issue an order requiring
the operator of such mine or his agent to immediately
cause all persons, except those persons referred to
in subsection (c), to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.

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Before the administrative law judge, Missouri Rock admitted
that the wheel brakes were not in working order on the three
scrapers. It produced evidence to show that the bowl on each
scraper serves as the primary brake and that such "brake" is fully
adequate to stop the scraper in all operating situations. The
inspector testified that the bowl will not adequately stop a scraper
in all instances and that the safety standard requires that wheel
brakes be adequate whenever the equipment is in operation.

In finding a violation of section 56.9003. Judge Broderick
concluded that the term "brakes" in the standard refers to wheel
brakes. 10 FMSHRC at 586-87. He held that the wheel brakes are
required to be adequate (i.e., able to stop the equipment in a
reasonable distance) and the fact that there are other effective
means of stopping a scraper does not satisfy the safety standard.
10 FMSHRC at 587. He also determined that dropping the bowl is not a
safe or effective means of stopping a scraper in all situations. Id.

On review, Missouri Rock contends that the bowl of a scraper

is designed, manufactured and customarily used as the primary
braking system on the scrapers at issue and is an adequate brake
under the standard. It further contends that if a violation is
found, the civil penalties ordered by the judge are excessive
and should be reduced. The Secretary argues that the Commission
should defer to its interpretation of the safety standard as
expressed by the inspector and adopted by the judge. She states
that the legislative history of the Act establishes that it was
Congress' intention "that the Secretary's interpretation of the law
and regulations shall be given weight by both the Commission and the
courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted
in Senate Subcommittee on Labor. Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 638 (1978). For the reasons set forth
below, we conclude that substantial evidence supports the judge's
finding that the scrapers were not provided with adequate hrakes and
that the civil penalties assessed by the judge are also supported by
substantial evidence.

The testimony of Inspector Ramage affords substantial evidentiary
support for the judge's determination that the term "brakes" in the
standard refers to wheel brakes. Although the term "brakes" is not
defined in the Act or the Secretary's regulations, it is clear that
the Secretary's interpretation of that term was as expressed by the
inspector. When he asked the scraper operators to test the brakes
during his inspection, he demanded that the service brakes be tested

Page 6

not the pan of the scraper. Tr. 30-35 & 37. He did not consider the
pan to have any bearing on the safety standard at issue. Tr. 83.
When asked on cross-examination whether he had required that the pan
be tested, he replied:

        [W]hen we check a piece of equipment for brakes,
we're checking for brakes. It [does not] say check
the pan. The standard that I -- in the normal procedure
that we do, it does not say check the pan.

Tr. 97. In addition, the Operator's Guide, 631 Tractor Scraper,
published by Caterpillar Tractor Company and introduced at the
hearing, instructs

Page 7

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scraper operators to test the brakes when checking the controls of
the scraper. Exhibit P-4 at p. 4. It is obvious from the context
that this guide is referring to the service brakes and not to the
pan. Finally, Inspector Ramage testified that in his inspections of
50 to 60 quarries twice a year during the five proceeding years, he
had issued only one citation for inadequate brakes on scrapers and
in his experience quarry operators usually keep such brakes in working
condition. Tr. 44-47. 3/
The Secretary's interpretation of the term "brakes" in the
standard to mean service brakes is a reasonable construction of
section 56.9003. Because brakes are required to be "adequate"
under the standard, it is an appropriate reading of the standard to
direct this requirement to the service brakes as opposed to other
parts of a scraper such as the pan. Under the interpretation
proposed by Missouri Rock, the safety standard would not require
that the service brakes designed and installed by the manufacturer
function as an adequate brake if the vehicle could be stopped by
other means. The standard does not require that powered mobile
equipment be provided with an adequate stopping or braking method;
it requires adequate brakes. It is also helpful to note that
tractor-scrapers are a conventional type of powered mobile equipment
manufactured and sold at the time this standard was promulgated.
There is no evidence that the standard provides any exceptions for
scrapers. We find the Secretary's interpretation of the standard
to require adequate service brakes to be rational and reasonable
notwithstanding the fact that, in some situations, other effective
means may exist for stopping the equipment. 4/

On review, Missouri Rock has presented no compelling reasons

why the Commission should not give weight to the Secretary's
interpretation. It simply argues that because the pan will
effectively stop the scraper, the pan is a brake under the standard.
The administrative law judge rejected this argument. We believe it
is appropriate to give weight to the Secretary's interpretation of
the standard in this case because it is supported by the record and
is a reasonable interpretation. See U.S. Steel Mining Company,
10 FMSHRC 1138 (1988).

Missouri Rock also challenges the judge's finding that dropping

the pan is not a safe and effective means of stopping the scraper in
all instances. The judge found that dropping the pan would not be a
safe or

3/ Our dissenting colleague Chairman Ford states that Inspector
Ramage personally had not operated a model 631 Caterpillar scraper.

Page 8

We note that personal experience in operating every model of every
type of regulated equipment realistically cannot be expected and is
not required of MSHA inspectors. We note also that in addition to his
experience gained through formal training and 10 years of inspection
activity, Inspector Ramage has, in fact, personally operated scrapers.
Tr. 75.

4/ The Secretary does not take the position that the pan should never
be used to stop a scraper or that using only the service brakes is
always advisable. She argues, however, that the standard requires
that the service brakes be available for use should the need arise.
She maintains, for example, that situations will arise in which
service brakes will be necessary for the supplemental braking effect
they may provide when used in conjunction with the pan. Sec. Br. 9 &
11.

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~140
effective method of stopping the scraper (1) on hard packed
surfaces, (2) if the scraper engine fails while ascending a hill
or (3) if buried rock is present. Missouri Rock contends that
substantial evidence does not support the judge's finding and points
to the extensive evidence it presented that the pan will adequately
stop the scraper in each of the above-described situations.

We find that substantial evidence was presented by the

Secretary to support the judge's findings. Although there also
is evidence in this record to the effect that the pan will stop
the scraper in these situations. The judge credited the testimony
of Inspector Ramage that the pan alone may not effectively stop the
scraper in all instances including the situations relied upon by the
judge. 10 FMSHRC at 587; Tr. 38, 49-50. 134-35. I find nothing in
the record that would warrant overturning the judge's finding in this
regard. The inspector's ten years of experience as a surface mine
inspector provides a substantial level of experience to support his
testimony as to the potential hazards of operating a scraper without
service brakes.

Substantial evidence has been defined to mean "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229
(1938). Taking into account the evidence in the record which
detracts from the judge's findings, we conclude that the record
supports the judge's conclusion that the pan will not effectively
stop the scraper on all instances. The Commission may not substitute
a competing view of the facts for an administrative law judge's
reasonable factual determination. Universal Camera v. NLRB, 340 U.S.
474, 488 (1951); Donovan ex rel. Chacon v. Phelps Dodge Corp.,
709 F.2d 86, 94 (D.C. Cir. 1983).

Finally, Missouri Rock argues that the judge's decision should
be reversed because the proposed penalties were improperly assessed
under the Secretary's "special assessment" provision of 30 C.F.R.
$ 100.5 and are in any event excessive. In his decision, the judge
held that the fact that the Secretary used her special assessment
provisions to be irrelevant since the Commission possesses de novo
authority in assessing civil penalties. 10 FMSHRC at 588.

The Commission has previously determined that the Secretary's

penalty regulations are not binding on the Commission. Sellersburg
Stone Co., 5 FMSHRC 287 (1985), aff'd, 736 F.2d 1147 (7th Cir. 1984).
The Commission has held that a mine operator may prior to hearing
raise and, if appropriate, be given the opportunity to establish,

Page 10

that in proposing penalties the Secretary failed to comply with her
Part 100 penalty regulations. Youghiogheny & Ohio Coal Company,
9 FMSHRC 673, 679-80 (1987). Given the Commission's independent
penalty assessment authority, the scope of the inquiry would be
whether the Secretary had arbitrarily proceeded under a particular
provision of her penalty regulations.
In the instant proceeding, Missouri Rock did not seek
resolution of this issue prior to hearing. In its post-hearing
brief, Missouri Rock simply asked that the proposed penalties be
"reduced to nominal penalties under the regular assessment provision
(without assessing respondent, as petitioner apparently proposed to
do, with excessive or unwarranted points in the areas of negligence,
good faith, likelihood of occurrence and gravity of injury)."
Missouri Rock Br. to ALJ at 16. Since the judge independently
assessed

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~141
civil penalties taking into consideration the criteria set forth
at section 110(i) of the Act (30 U.S.C. $ 820(i)), the controlling
issue is whether the judge did so properly rather than whether the
Secretary failed to comply with her penalty regulations.

When a judge's penalty assessment is put in issue on review,

we must determine whether it is supported by substantial evidence
and whether it is consistent with the statutory penalty criteria.
Pyro Mining Co., 6 FMSHRC 2089. 2091 (September 1984). The judge
considered the evidence relating to the violations and found that
the violations were moderately serious, that the violations found
on February 25. 1987 (Citation Nos. 2846916 & 2846918) were the
result of Missouri Rock's gross negligence and the violation found on
February 3 (Citation No. 2846910) to be a result of Missouri Rock's
ordinary negligence. He also found that Missouri Rock showed good
faith abatement with respect to the violations of February 25 but
that it did not demonstrate good faith in attempting to achieve rapid
compliance of the first violation until a section 104(b) order was
issued. We find that the civil penalties totalling S2,000 imposed
by the judge for the violations of section 56.9003 are supported by
substantial evidence, are consistent with the statutory penalty
criteria and do not constitute an abuse of discretion by the judge.

For the foregoing reasons, the decision of the administrative
law judge is affirmed.

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Chairman Ford, dissenting:

If the standard at issue required that "powered mobile

equipment shall be provided with adequate service brakes", I would
join the majority in affirming the judge's decision. Likewise, had
this case arisen under the current brake standard which supersedes
and clarifies the one cited by the inspector, a finding of violation
would have been appropriate. 1/ Given, however, the vagueness of the
brake standard, as manifested in the widely divergent interpretations
advanced by the parties, and the unique design of the scraper-tractors
cited, I do not believe the Secretary has met her burden of proving a
violation. Therefore, I respectfully dissent.

The premise underlying the judge's decision is that 30 C.F.R.

56.9003, requiring that "powered mobile equipment shall be provided
with adequate brakes", applies only to the service or wheel brakes
of the scraper-tractors cited. While the judge found that the bowl
or pan on a scraper-tractor could be used to effectively stop the
equipment in many circumstances, he nevertheless found that the bowl
by itself could not be considered a means of compliance with the
standard. I would reverse the judge on the ground that his basic
legal conclusion regarding the application of the standard is
erroneous.

Section 56.9003 does not refer to "service brakes" nor is the

term "brakes" defined in 30 C.F.R. Part 56. The Secretary offered no
official interpretation of the standard, nor could she point to any
Commission or court precedent that might shed light on the meaning and
scope of section 56.9003. The Secretary does, however, urge upon the
Commission the opinion of her inspector as to what the standard means
and argues that the Commission should give deferential weight to his
interpretation of the standard. Unfortunately

1/ 30 C.F.R. 56.14101, promulgated August 25, 1988 (53 FR 32496,
32522) provides in part:

"(a) Minimum requirements. (1) 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...

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

(b) Testing. (1) Service brake tests shall be conducted when

Page 13

an MSHA inspector has reasonable cause to believe that the service
brake system does not function as required, unless the mine operator
removes the equipment from service for the appropriate repair."

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~143
for the Secretary, however, the inspector readily admitted: that
he was "not a brake expert" (Tr. 125); that he had never operated
a 631 scraper-tractor (Tr. 75-76); 2/ and that his training with
respect to braking systems consisted of reviewing a demonstration
board at MSHA's Training Academy which differentiated air brakes
from hydraulic brakes (Tr. 24). I strongly disagree with the
majority's view that the inspector's ten years' experience of
inspecting 50-60 quarries qualifies him as an expert on "brakes"
or as an expert on interpreting section 56.9003. 3/

2/ I believe the majority misperceives the basis for my reliance
on this admission by the inspector. Obviously, a mine inspector
need not be a qualified operator of every piece of mobile equipment
he might have occasion to inspect. The issue, here, however, is
the level of expertise the inspector brings to bear on interpreting
the brake standard, generally, and on applying it to the components
of the particular model of equipment he cited as not being in
compliance with the standard. As to his "hands on" familiarity
with the operation of the tractor-scrapers cited the complete
testimony is as follows:

Q. And I listened closely and I didn't hear you
tell us that you had any training in 631 C-scraper
operations, is that true?

 A. I am not a qualified operator, no.

 Q. Okay. Have you ever gotten on one of those
 631 C-scrapers, and operated the wheel brakes?

 A. Not a 631. I have operated scrapers, but not 631's.

 Q. Okay. I'm not talking about any other scrapers, or
 any other equipment. I'm talking about 631 C-scrapers?

 A. We're not allowed to operate anyone's equipment.

Q. Have you ever gotten on them even, and used the
bowl, or the pan, or used that lever that operates the
bowl, or the pan?

A. We do not interfere -- or bother people's equipment.
Tr. 75-76.

3/ The inspector's experience might qualify him to speak with

Page 15

some authority to whether a particular braking system is adequate,
i.e., capable of stopping equipment within a reasonable and safe
distance, but, as will be shown, infra, his opinions as to the
adequacy of the bowls on the scraper-tractors was highly speculative
and lacking any empirical basis.

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Poised in opposition to the inspector's testimony is that of:
(1) representative of a large distributor of the equipment cited
who had 12-14 years experience with scraper-tractors and extensive
training in their operation and capabilities; (2) a quarry supervisor
with ten years experience operating scraper-tractors; (3) a safety
director with four years experience operating scraper-tractors; and
(4) a mechanic with six to seven years experience both operating and
repairing scraper-tractors. All testified that the pan or bowl
constituted the primary braking system on the equipment. 4/
Mr. Messerli, territorial manager for the Caterpillar distributor
that supplied the scraper-tractors, testified that the distributor's
training and demonstration personnel taught customers to rely on
the pan or bowl as the primary braking system on the equipment.
Tr. 189-190. Furthermore, Respondent's Exhibit 1 clearly indicates
that the local Operating Engineer's Union apprentice training program
stresses use of the pan or bowl as the primary braking system on
scraper-tractors. See also Tr. 251-252. One can assume that union
members so trained are employed by mining and construction operations
other than Missouri Rock's quarry.

This Commission has on numerous occasions applied what has come

to be known as the "reasonably prudent person" test in determining
whether vague or broadly drawn standards afford reasonable notice of
what is required or proscribed. Alabama By-Products, 4 FMSHRC 2128,
2129 (December 1982); Great Western Electric Co., 5 FMSHRC 840, 841-42
(May 1983); U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983).

In U.S. Steel, supra, the issue was whether or not berms along

a mine roadway were "adequate" for purposes of the standard, 30 C.F.R.
77.1605(k). In essence, the Commission held that the adequacy of a
berm must be determined "by reference to an objective standard of a
reasonably prudent person familiar with the mining industry and in the
context of the preventive purpose of the statute." Id. 5. In setting
an "objective standard" the Commission held it appropriate to consider
"accepted industry standards...considerations unique to the mining
industry, and the circumstances at the operator's mine." Id.

Applying the reasonably prudent person test here, one could

not avoid concluding that at Missouri Rock's facility and at
facilities utilizing the type of scraper-tractor cited and employing
trainees of the Operating Engineers program, the common practice was
to utilize the pan or bowl as the primary braking system on the units.
Furthermore, both the judge and the Secretary acknowledged that in
certain instances the pan or bowl would be necessary to meet the
objective of the standard -- safely stopping the equipment within a

Page 17

reasonable distance. Tr. 118, 128-129; Sec. Br. 9, fn. 8; 11, fn 12;
10 FMSHRC 587 I would therefore find as a matter of law that pans or
bowls on the

4/ The record establishes that the bowl or pan can be applied as a
braking mechanism in two ways. It can be gradually lowered against
the ground with up to 82,000 pounds positive pressure to slow the
scraper-tractor, or it can be "quick-dropped" to provide immediate
stopping capability in the event of an emergency. The bowl is
controlled by a lever readily at hand in the operator's compartment.
Tr 177, 172-3, 201, 203. We are dealing here with a fairly
sophisticated braking system not dependent upon the "ingenuity of
the employee" or the "whimsical imagination of the operator" to
stop the equipment. Secretary of Labor v. Brown Brothers Sand Co.,
9 FMSHRC 636, 656-57 (March 1987).

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scraper-tractors can appropriately be considered "brakes" for
purposes of section 56.9003. With that established, the issue
becomes whether or not those "brakes" are adequate for purposes of
the standard. In that regard the Secretary has failed to show that
the bowls were inadequate.

Once again the Secretary's case rests entirely on the testimony

of the inspector which can be summarized as follows:

 If you're maneuvering in an area where there --
 you've got hard surface, or real dry hard packed
 surface, the dropping of the pan may not provide the
 immediate braking action that would be required, or
 may be necessary to stop -- keep from striking someone,
 or running into another piece of equipment."

 [A]scending a steep grade or a grade, and the
 engine fails, dies, or anything, he has got no brake
 whatsoever if he don't have a service brake."

 If the scraper was moving at any speed -- I'm saying
 five to ten miles per hour or maybe faster, then if
 they were in an area where there could be some rock
 buried below the surface, and you dropped the pan, that
 pan -- that scraper is going to come to a real abrupt
 halt, and if the operator don't have his seat belt on,
 he could suffer substantial injuries. Even with his
 seat belt on, he is going to be pitched forward with
 considerable force. Tr. 48-50.

Generally speaking the testimony is speculative in nature --

interspersed with "may" or "could". Furthermore, at no time did the
inspector verify his conjectures by asking the equipment operators to
demonstrate the use of the bowls in such circumstances. More
particularly, Missouri Rock clearly rebutted the inspector's testimony
in each of the three cases.

First, Messrs Case, Gordon and McClanahan all testified

that a test of the braking capacity of the bowl on a hard packed
surface was undertaken at the mine site. Test results indicated
that the bowl stopped the equipment at full speed in five to
six feet while fully functioning wheel brakes required 12 feet.
Tr. 316-17; 370-71. Masserli testified that if the engine died
while the equipment was ascending a steep grade the wheel brakes
would soon overheat so that only the bowl would be available as a

Page 19

brake. The hydraulic system for the bowl, however, continues to
operate whether or not the engine is running. Tr. 172, 178.
Third, Masserli and Ellis both testified that equipment operators
are required to use seat belts at all times. Tr. 186, 254. Indeed,
Masserli testified that since operators are subjected to a great deal
of bounce while operating the equipment, they have to be belted into
the seat in order to maintain control of the units. Tr. 187. Given
the overwhelming rebuttal evidence presented by Missouri Rock, I
conclude that substantial evidence does not support the judge's
holding that operation of the bowl is not "safe or effective" in
those circumstances speculated upon by the inspector. 10 FMSHRC 587.

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One other aspect of the "adequacy" issue strikes me as
contradictory. If one assumes that the standard applies only to
the service or wheel brakes and not the bowl, then it appears that
Missouri Rock would have been found in violation of the standard
even if the wheel brakes had been well-maintained. All parties and
the judge agree that the wheel brakes are limited by their design
capability inasmuch as they will not safely and effectively stop a
fully loaded unit going downhill on a steep grade; the bowl or pan is
best utilized in such circumstances (Tr. 118-20, 177-78, 258, 372-3;
Sec. Br. 9, fn. 8; 11, fn. 12; 10 FMSHRC 587). Thus, even fully
operational wheel brakes could not be considered adequate for all
purposes under section 56.9003. On the other hand, extensive and
uncontroverted evidence establishes that the pan or bowl would be
adequate in all off-road applications that might arise in the
Missouri Rock quarry. 5/

In summary, I would reverse the judge with respect to his legal

assumption that the standard applies only to the wheel or service
brakes and not the pans or bowls of the scraper-tractors. I would
also reverse his holding with respect to the adequacy issue since
substantial evidence does not support his holding that the pans are
not safe and effective.

 Since the majority affirms the judge on both matters, I must

respectfully dissent.

5/ Missouri Rock acknowledges that the wheel brakes would be necessary
for transporting a scraper-tractor between jobs on public roads and
would have to be fully operational in those circumstances. Pet. for
Discr. Rev. at 3; Tr. 166-171.

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Commissioner Doyle, dissenting:

In his decision, the administrative law judge examined the

term "brake" as defined by two sources. He noted that the American
Heritage Dictionary of the English Language defined brakes as "[a]
device for slowing or stopping motion, as of a vehicle or machine,
especially by contact friction" and that A Dictionary of Mining,
Mineral and Related Terms defined the term in part as "[a] device
(as a block or band applied to the rim of a wheel) to arrest the
motion of a vehicle, a machine or other mechanism and usually
employing some sort friction." He then found that the testimony in
this case established that dropping the pan is the usual method of
stopping the scrapers in issue and that in many cases that is the
quickest and safest way to stop them. Based solely on the inspector's
testimony, however, he found several instances in which the pan would
not be effective in stopping the scrapers and then concluded that the
term "brakes" in the standard refers only to wheel or service brakes.
The majority finds that substantial evidence was presented by the
Secretary to support the judge's findings of fact. I disagree.

The only evidence of record to support the judge's finding

that there were instances in which dropping the pan is not effective
is the opinion testimony of a non-expert witness (Inspector Ramage).
The inspector testified that his training with respect to brakes
consisted of learning at MSHA's Training Academy to differentiate
air and hydraulic brake systems (Tr. 24, 125) and he readily admitted
that he was "not a brake expert." (Tr. 125). Yet the judge permitted
him to testify, and credited his testimony, as to what he thought
would happen if attempts were made to stop the scraper when operating
on pavement or other hard surfaces, when the engine failed while
ascending a hill, when traveling backwards downhill or in the case
of buried rock or a limestone knoll. This testimony was not based
on tests that the inspector had conducted, nor on tests he had
observed. It was not based on his own experience in operating a
scraper nor on his study of the subject. In fact, the record gives
no indication that it had any basis at all. For that reason, the
inspector's testimony should have been accorded no weight by the
judge. Instead, the judge credited it and based his findings of fact
and his subsequent conclusion that the standard refers to the wheel or
service brakes on this testimony. I believe that he erred in relying
on the opinion testimony of a nonexpert witness and that, without that
testimony, his finding that there were instances when the pan would
not be effective in stopping the scraper is without record support.

The majority accepts the Secretary's argument that her

Page 22

interpretation of the standard as meaning only service brakes is a
reasonable one that should be accorded deference. I disagree.

Page 23

~148
This case is unlike Chevron U.S.A. v. Natural Res. Def.
Council, 467 U.S. 837 (1984) cited by the Secretary in support
of her position. In that case the agency issued a regulation
interpreting a statute and it was the agency's official
interpretation of the statute as set forth in the regulation that
was at issue. This case is also unlike U.S. Steel Mining Company,
10 FMSHRC 1138 (1988) cited by the majority. In that case the
operator had longstanding notice of the Secretary's consistent
enforcement of the standard. Here the Secretary introduced no
evidence of consistent (or previous) enforcement of the standard
to apply only to service brakes nor did she even advance this
interpretation in her brief to the administrative law judge. The
Secretary did not submit any official MSHA interpretations of the
regulation, such as interpretive bulletins or policy manual positions
on the subject. Rather than any official interpretation, the record
before us presents only a personal interpretation of one MSHA
inspector.

The majority states that "it is clear that the Secretary's

interpretation of the term was as expressed by the inspector" and
they then recount the inspector's actions and his testimony as to
his state of mind ("[h]e did not consider the pan to have any bearing
on the safety standard at issue") as evidence of the Secretary's
interpretation. It is perhaps more accurate to say that the Secretary
has subsequently fashioned her interpretation of the term to coincide
with the inspector's actions and the judge's conclusions rather than
the Secretary having arrived at her interpretation, the inspector
having then acted on the basis of that interpretation and the judge
having then properly given deference to it. Under the circumstances
of this case, I do not believe that the Secretary's after the fact
(and after the hearing) interpretation is a reasonable action to which
deference is owed. To find otherwise permits the Secretary to adopt
ex post facto any number of diverse interpretations and enforcement
actions by her inspectors with no forewarning to operators of what
those interpretations or enforcement actions might be. Safety is
better served if operators know in advance what the law requires of
them.

Accordingly, I would reverse the judge's finding of violation.

                Joyce A. Doyle, Commissioner

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~149
Distribution

James L. Burgess, Esq.
Johnson, Lucas, Bush, Snapp & Burgess
1414 Home Savings Bldg.
1006 Grand Avenue
Kansas City, Missouri 64106

Jerald S. Feingold, Esq
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041