Secretary of Labor v. Trivette Trucking

Plain-English summary

A Trivette Trucking driver was fatally injured after his loaded coal truck left a steep mine haul road and overturned. MSHA alleged that the truck was overloaded, that the driver failed to maintain control, and that defective brakes were inadequate, seeking $140,000 for two violations. Judge Jeffrey Tureck found that the Secretary did not prove the truck carried an unsafe load or that its brake defects made the braking system inadequate or caused the accident. Applying intervening Commission precedent, he nevertheless held that the driver's loss of control itself violated the mobile-equipment standard and was significant and substantial. He removed the negligence and unwarrantable-failure findings, reduced that penalty to $1,000, and vacated the brake order. The Commission later affirmed those results.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1605(b) and 77.1607(b)
• Outcome: Order No. 8230314 was modified to no negligence with a $1,000 penalty, while Order No. 8230315 was vacated.
• Subsequent review: The Commission affirmed both results in kent-2011-1223-commission.
• Key point: Loss of control established a violation, but it did not prove overloading, operator negligence, or that separate brake defects made the brakes inadequate for normal use.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Ave., N.W., Suite 520-N

WASHINGTON, DC 20004-1710

TELEPHONE: (202) 434-9958 / Fax: (202) 434-9949

June 28, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION  (MSHA),

Petitioner, 

v.

TRIVETTE TRUCKING, 

Respondent.

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2011-1223

A.C. No. 15-17360-248538 Q080

Mine: PE Southern Pike County 

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DECISION

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

Before: Judge Tureck

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”),
against 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.

Findings of Fact and Conclusions of Law

The parties have stipulated the following :

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 1maintain 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