Secretary of Labor v. Nally & Hamilton Enterprises, Inc.

Plain-English summary

MSHA cited Nally & Hamilton twice under a mobile-equipment control standard after an inspector drove his own vehicle on muddy haul roads and experienced sliding. Judge William S. Steele found that the standard prohibits operating equipment without full control, but the inspector did not observe the company's drivers lose control. Road conditions might have supported citations under roadway-maintenance standards, but MSHA did not cite those provisions or request an amendment. The judge vacated both contested citations. A third citation remained as issued after the operator withdrew its contest, resulting in a $900 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1607(b)
• Outcome: Two vehicle-control citations were vacated, one uncontested citation remained, and a $900 penalty was ordered.
• Key point: Evidence that a road is muddy or that an inspector's vehicle slid does not prove the operator's drivers lacked full control under the cited equipment-operation standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-920-8689

March 19, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

NALLY
& HAMILTON ENTERPRISES,

INC.,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. KENT 2012-1031

A.C.
No. 15-18986-287861-01

Mine:
Balkan

Docket
No. KENT 2012-1248

A.C.
No. 15-19076-290524

Mine:
Chestnut Flats

DECISION

Appearances:               Joseph
B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN for the Secretary

Stephen
Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East Stephen Foster
Avenue, P.O. Box 327, Bardstown, KY for Respondent

Before:
                       Judge Steele

These
cases are before me on petitions for assessment of civil penalties filed by the
Secretary of Labor (the “Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”) against Nally & Hamilton Enterprises, Inc. (“Nally”
or “Respondent”) at its Balkan and Chestnut Flats mines pursuant to Sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815
and 820 (the “Mine Act” or “Act”). The Secretary seeks civil penalties in the
amount of $10,922.00 for three alleged violations of the Secretary’s mandatory
safety standards for underground, surface or other mines. The parties presented
testimony and documentary evidence at the hearing which was conducted on May 29,
2013 in London, Kentucky. At the conclusion of the evidence, Respondent
withdrew its contest of Citation No. 8369110 and agreed to pay $900.00, as
assessed by the Secretary. For the reasons set forth below, I vacate Citation
Nos. 8369111 and 8369121.

STIPULATIONS

1.         Nally
& Hamilton Enterprises, Inc. is subject to the Federal Mine Safety and Health
Act of 1977.

2.
        Nally & Hamilton Enterprises, Inc. has an effect upon interstate
commerce within the meaning of the Federal Mine Safety and Health Act of 1977.

3.         Nally
& Hamilton Enterprises, Inc. 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.

4.         Nally
& Hamilton Enterprises, Inc. operates the Balkan Mine, I.D. No. 15-18986.

5.         The
Balkan Mine had 181,090 hours worked in 2011.

6.         Nally
& Hamilton Enterprises, Inc. operates the Chestnut Flats Mine, I.D. No. 15- 19076.

7.         The
Chestnut Flats Mine produced 385,017 tons of coal in 2011.

8.         A
reasonable penalty will not affect Nally & Hamilton Enterprises, Inc.’s
ability to remain in business.

Government
Exhibit 1.[1]

CITATION
NO. 8369111

Citation No. 8369111 was issued under
Section 104(a) of the Act on December 8, 2011 at 7:20 a.m. and was based upon
the inspector’s observation of a violation of 30 C.F.R. § 77.1607(b). This
safety standard, entitled “Loading and haulage equipment; operation,” states,
“[m]obile equipment operators shall have full control of the equipment while it
is in motion.” Id. In his narrative, the inspector found [All errors
copied as written]:

Due to the slick haul road with 10 to 14
inches of muddy material (the determined responsibility of the operator to
maintain), equipment including personnel vehicles and coal truck operator,
observed hauling on the slick haul road, were not in full control while the
equipment was in motion. At a test speed of 5 miles an hour a personnel vehicle
slide (like a sled) thru the intersection, into oncoming traffic including
Tractor and Trailor Coal Trucks and a swivel tail rock truck.

Note: This citation was one of the
contributing factors that contributed to the issuance of imminent danger order

8369109 issued on 12-08-2011. therefore no abatement time was set.

GX-3.

The
inspector noted that the risk of injury or illness was reasonably likely and
significant and substantial (“S&S”) in nature. Id. The injury could
be reasonably expected to result in lost workdays or restricted duty and would
affect one person. Id. The negligence was assessed as moderate. Id.
The Citation was terminated when the road was graded and a berm of correct
height was constructed. Id. The Secretary proposed a penalty of $900.00
for the alleged violation.

1.      The Secretary’s
Evidence[2]

MSHA
inspector John Sizemore (“Sizemore”) testified that the roadway had between ten
to fourteen inches of muddy material that was very slick and extended up the
road for approximately 100-150 feet. Tr. 20-21. This measurement was obtained
by tape measure in four or five different locations. Tr. 21. In order to test
the conditions, he decided to drive his four-wheel drive Jeep Laredo down the
hill. Tr. 20-21. When he hit the brakes at a speed of five to ten miles per
hour, he testified that he slid through the entire area, including a stop sign
at the bottom of the hill. Tr. 21, 33.

Sizemore
explained that the hazard associated with the condition is that a vehicle would
try to stop and slide through the intersection at the bottom of the hill. Tr.

22. During his inspection, he observed a fully loaded back-dump[3]
    hauling to and from the preparation plant to the lower level of the mine. Tr.
    22-23. He testified that he stopped the driver, Herschel Collett (“Collett”),
    and questioned him about the road conditions. Tr. 23. According to Sizemore,
    Collett stated, “I look both ways before I go down that area and then I don’t
    touch my brakes, and that’s the way I get through there without – and maintain
    control.” Tr. 24. Aside from Collett, Sizemore observed several vehicles on the
    main road which would be used in excess of seventy-five to one hundred times a
    day. Tr. 23. At that time, Collett issued the citation at issue because
    Respondent is required to maintain the roadway so that a person could have full
    control of his/her vehicle. Tr. 24-25.

Sizemore
determined that the condition was reasonably likely to result in a reasonably
serious injury and S&S because, according to him, the roadway was very
slick, and there was no control of a vehicle in this area. Tr. 25. He further
testified that there was no berm on the outer bank of the road, a fact
confirmed by Collett. Tr. 26, 49. The haul road would likely be traveled ten or
more times a day. Tr. 26. He theorized that a vehicle veering off the road was
likely to result in broken bones or lacerations, which are lost workdays or
restricted duty type injuries. Tr. 26. He believed that the condition was the
result of Respondent’s moderate negligence because the condition was in plain
view, even to the casual observer. Tr. 25. Further, Sizemore testified that the
gravel was located a few hundred yards from the cited area, and all of the
equipment was at the preparation plant ready to be used. Tr. 36-38.

At
the same time, Sizemore issued an imminent danger order under Section 107(a) of
the Act because he believed that an injury would occur before the condition
could be corrected.[4] Tr. 27-28. His concerns
were that the roadway was very slick, a tandem coal truck was traveling down
the roadway, the berm was insufficient or nonexistent in a crucial area, and an
accident could occur if travel was allowed to continue. Tr. 27-28. For this
reason, Sizemore stopped the truck that was actively working and asked the
driver, Hershel Collett (“Collett”) to park above the slick area. Tr. 29. The citation,
as well as the imminent danger order, was terminated when the mud was removed,
gravel was laid and the berm was constructed. Tr. 29-30. Plant Manger Wes
Thomas worked with Sizemore to abate the condition. Tr. 29, 38-39.

2.
Respondent’s Evidence

Hershel Collett
hauls coal for Respondent, but is self-employed. Tr. 40-41. On the day that the
citation was issued, he was operating his M800 tandem truck, which can haul
approximately thirty-eight tons of coal at a time. Tr. 41-42. In a typical day,
he makes eight to ten runs hauling coal to the preparation plant from a mine
belonging to a different operator. Tr. 42.

When
stopped by Sizemore, Collett estimated that he was stopped forty to fifty feet
above the slick area, which he surmised was steeper than the road in question. Tr.
42-43. He did not recall telling Sizemore that the road was slick and, in fact,
testified that he had made one earlier run and had no problems with sliding. Tr.
43-44. He also stated that he had not noticed as much mud on the road as
Sizemore. Tr. 43. While he testified that there was gravel on the road, he
stated that it had been raining for four or five days and some of the gravel
had “disappeared.” Tr. 43. Sizemore, on the other hand, could not recall
whether it had been raining either on the day that the citation was issued or
in the previous days. Tr. 36. Regardless, Collett stated that he had no trouble
hauling coal or slowing down. Tr. 43-44. If he had, Collett said that he would
not have hauled the coal in dangerous conditions and would have alerted
Respondent to the conditions as he had in the past. Tr. 44, 47-48.

In
explanation of what Collett said to Sizemore about the brakes, Collett
testified that he does not touch his brakes because the truck is “geared down,”
and the cited area of the road is not particularly steep. Tr. 45, 49. When
fully loaded, the truck typically travels at three to four miles per hour on
the road. Tr. 46. He argued that he would not use the brakes even in the best
possible conditions in order to prevent the brakes from getting hot. Tr. 45. According
to Collett, the lower the gear that the truck is in, the less the brakes are
used because they become very hot and would eventually fail. Tr. 45. Further,
it was unnecessary for Collett to stop at the bottom of the hill because he has
the right of way and traffic proceeding from the other direction must stop. Tr.

49. Finally, he added that, the vast majority of the time, he is the only coal
    truck operating on the road. Tr. 46. He only asked for help when he was behind.
    Tr. 46.

3.
Contentions of the Parties

The
Secretary contends that, regardless of whether the inspector actually observed
a vehicle out of control, Respondent is required to maintain the roadway in a
condition allowing for full control of a vehicle. Because the roadway was
slick, traveled in excess of ten times a day and no berm existed, he states the
citation was correctly designated as reasonably likely to result in a
reasonably serious injury and S&S. In support, the Secretary argues that if
an accident were to occur, broken bones and lacerations would be the minimum
injury. Finally, although the inspector did not know how long the condition
existed, the Secretary states that the road was in plain view, and even the
most casual observer would see the condition. Therefore, he asserts that Respondent’s
negligence was moderate.  

Respondent
argues that no evidence was presented to suggest that any of Respondent’s
employees or contract employees failed to maintain full control of a vehicle;
therefore, the citation should be vacated. It states that the presence of ten
to fourteen inches of mud on the roadway and Collett’s failure to use brakes do
not substantiate the Secretary’s claims. In the event that the citation is
found to be valid, Respondent states that the violation is not S&S because
the first two prongs of the Mathies test have not been met.

4.
Findings of Fact and Conclusions of Law

I find that the
Secretary has not proven his case and, therefore, Citation No. 8369111 is
vacated. Sizemore cited Respondent for a violation of 30 C.F.R. § 77.1607(b)
which requires equipment and vehicle operators to maintain full control of
vehicles at all times while in motion. As proof of this, Sizemore conducted his
own experiment in which he testified that he lost control of his own vehicle.
He fully admits that he never observed any of Respondent’s employees on the
roadway, but explains that, given the unsafe nature of the road, he did not
have to actually witness a vehicle out of control. I do not, however, agree
with this assessment.

The
plain language of 30 C.F.R. § 77.1607(b) states that an operator shall have
full control of a vehicle while it is in motion. As further evidence of the
regulation’s intent, it is specifically entitled “Loading and haulage equipment;
operation.” 30 C.F.R. §77.1607(b) (emphasis added). Other than Collett’s
truck, which was stopped prior to reaching the section of the road at issue,
Sizemore did not observe a single vehicle operating on the roadway. At hearing,
he testified that his only proof of lack of vehicle control was the operation
of his own Jeep. Allowing MSHA to conduct its own experiments in the absence of
any witnesses to prove the existence of violations is a dangerous course of
action. Given that none of Respondent’s employees were observed having
difficulty with vehicle control, I find that the Secretary is unable to prove
his case, and the citation must be vacated.

To
be clear, I am not suggesting that slick roadbeds are not a violation of the
regulations; rather, I find that slick roadbeds are not a violation of this
particular standard. In the instant case, Respondent could have been cited for
any of the regulations pertaining to roadway maintenance. 30 C.F.R. §
77.1605(k) requires that berms be provided on elevated roadways. Further, 30
C.F.R. § 77.1605(m) requires, among other things, that roadbeds be maintained
in a manner consistent with the speed allowed and type of haulage done. While
the Secretary may have been able to prove his case under either of these
regulations, he did not cite Respondent for these nor did he request an
amendment to the cited regulation. Given all of the information presented and
the testimony at hearing, I am constrained to find that the Secretary did not
prove his case.

CITATION
NO. 8369121

Citation
No. 8369121 was issued under Section 104(d)(1) of the Act on December 16, 2011
at 8:00 a.m. and was also based upon the inspector’s observation of a violation
of 30 C.F.R. § 77.1607(b). In his narrative, the inspector found [All errors
kept as written]:

The operator has not maintained the
entire length of the haul road from the contract coal mine to the preparation
plant. 1 to 4 inches of muddy material was present along the haul road and
equipment including personnel vehicles and coal truck, were observed hauling on
the slick haul road, were not in full control while the equipment was in
motion. At a test speed of 10 miles an hour a personnel vehicle slide (like a
sled) in straight areas and in the curves at different areas of the haul road. The
operator has posted a speed limit of 35 mph. along this road.

Note: This citation was one of the
contributing factors that contributed to the issuance of imminent danger order

8369120 issued on 12-16-2011. therefore no abatement time was set.

Note: This same type citation (#8369111)
and resulting imminent danger order (#8369109) was issued for this same
condition, at as different location, along this same haul road on 12-08-2011,
and was a factor in the consideration of high negligence classification of this
citation.

Note: The operator has engaged in
aggravated conduct constituting more than ordinary negligence in that the
operator was aware that the haul road was wet slick and muddy and that contract
employees were traveling this haul road. This violation is an unwarrantable
failure to comply with a mandatory standard.

GX-5.

The
inspector noted that the risk of injury or illness was highly likely and
S&S in nature. Id. The injury could reasonably be expected to result
in permanently disabling injuries affecting one person. Id. The
negligence was assessed as high, as well as an unwarrantable failure to comply
with a mandatory standard (“Unwarrantable Failure”). Id. The Citation
was terminated when the operator applied gravel and graded the roadway from the
preparation plant to the mine. Id. The inspector observed that the
operators should not be able to maintain control. Id. The Secretary
assessed a penalty of $9,122.00 for the alleged violation.

1.
The Secretary’s Evidence

Sizemore
testified although the citation was issued to a different mine, the entire road
is three to four miles long and runs from the Chestnut Flats Mine to the Balkan
Preparation Plant. Tr. 53-54. The road is designed to have steep inclines
followed by level areas where brakes can be cooled. Tr. 54. According to
Sizemore, the road had one to four inches of mud in spots, several of which
were on inclines. Tr. 54-55. Again, this measurement was taken by with a tape
measure. Tr. 54. The posted speed limit on the haul road was thirty-five miles
per hour; however, Sizemore testified that he slid at a test speed of ten miles
per hour. Tr. 55.

Sizemore
asserted that the road was wet and muddy, and there was no visible gravel on
it. Tr. 55. When he went around curves in the road, the truck would slide out
and he’d have to employ the “turn-the-wheel-the-same-way” maneuver to get out
of the spin. Tr. 55. Collett and the miners traveling to the A&M Coal
Company would use this road every day. Tr. 56. By Sizemore’s estimate,
approximately twenty miners would access it for the day shift, eighteen to
twenty for the second shift and three to five for the third shift. Tr. 56. Further,
he observed a Mack truck hauling thirty to forty tons of coal down the incline.
Tr. 56. When discussing the road with one of Respondent’s employees, Sizemore
stated that the outside man told him that he slid all the way along the road. Tr.

57. The miner also explained that Respondent graveled the haul road when it was
    first built, but it had not been touched since that time. Tr. 57.

Based
on Sizemore’s observation, he testified that Respondent violated the standard
when it did not maintain the road so that the operator of a vehicle would have
full control. Tr. 57. The three to four miles affected by the condition
contained steep inclines and different terrain. Tr. 62. Sizemore believed it
was reasonably likely or highly likely that an accident would occur if the
condition was left uncorrected. Tr. 62-63. He asserted that a vehicle traveling
over the embankment or colliding with another vehicle would likely result in
broken bones, including the possibility of the neck or back, or lacerations,
which he categorized as permanently disabling injuries. Tr. 63. Because he only
saw one person on the road at the time of issuance, he believed that only one
miner would be affected. Tr. 63.

Sizemore
further designated the citation as high negligence and an unwarrantable failure
to comply with a mandatory standard under Section 104(d)(1) of the Act. Tr. 58.
He reasoned that the condition extended for three to four miles. Tr. 58. The
preshift examination indicated that the haul road was slick; therefore,
management knew about the condition. Tr. 60, 79; GX-6. Further, when discussing
the issue with General Manager Ted Helton, Sizemore testified that Helton
stated that at $17.00 per ton, he would shut the mine down before he would
gravel the road. Tr. 60-61, 78-79. Finally, he had issued a prior citation and
imminent danger order to the Balkan Mine. Tr. 59, 77.

Given
the conditions, Sizemore also issued a 107(a) imminent danger order to stop
travel on the road. Tr. 64.[5] When Sizemore left the
mine, he used the roadway, which was in the process of being graded. Tr. 66. He
did not terminate the citation and order at that time, however, because there
was more work that needed to be done. Tr. 66. The citation and order were
terminated later that day when Respondent graded and graveled the road. Tr. 65.
Sizemore received information from an unknown source that it had taken ninety
to a hundred truckloads of gravel to abate the condition. Tr. 79.

When
asked at hearing whether employees of A&M Coal Company traveled the road
during the inspection, Sizemore testified that he did not see them. Tr. 68, 71.
He stated that only Collett asked permission to travel the haul road and
Sizemore denied his request. Tr. 68-69. He further explained that in terms of
A&M Coal Company employees, he worked with the owner of the mine, Mark
Dotson, and informed him that the road was shut down. Tr. 70. Collett
acknowledged that there was a side road that the miners typically used when
entering and exiting the mine. Tr. 90, 92.

In
response to the video taken by Respondent, Sizemore testified that it did not
accurately depict the conditions as they existed. Tr. 113. He explained that
the road was graded prior to his departure on December 16th, so the
tire tracks present must have been there from vehicle travel after it was
graded. Tr. 114-115.

2.
Respondent’s Evidence

Collett
testified that the haul road had been shut down before his arrival that day,
but he entered using it because he did not know that an imminent danger order
had been issued. Tr. 87-88. While he admitted that it was muddy, he stated that
he was not concerned for his safety while driving. Tr. 87-88. Although there
was a side access road, he asserted that he saw miners entering and exiting the
road and believed that Sizemore was still at the mine at that time. Tr. 89. When
he was returned to his vehicle by the owner’s son, they used the road and
Collett did not notice anything wrong with it. Tr. 88. While Sizemore could not
recall whether it was raining on that day, Collett testified that it was. Tr.
55, 93.

Respondent’s
Safety Coordinator Tracey Creech (“Creech”) testified after receiving
information about the citation and order, he arrived at the mine using the haul
road between 8:00-8:30 a.m. Tr. 101. He stated that he drove his two-wheel
drive truck and never slid. Tr. 97. In the afternoon, he took video of himself
driving the road at approximately twenty to twenty-five miles per hour. Tr.
100; RX-1. According to Creech, even though there was a lapse in time, the road
looked essentially as it did upon his arrival. Tr. 102. The gravel trucks where
working, but the road had not been graded at that time. Tr. 109. Based on his
experience, he did not believe that emergency vehicles would have any problem
accessing the mine if needed. Tr. 103.

Creech
stated that it took forty-one loads of gravel to abate the condition, not
ninety to one hundred as asserted by Sizemore. Tr. 97. He further testified
that this was not the first time that the road had been gravel, even by MSHA’s
own records; therefore, the information given to Sizemore was completely false.
Tr. 107-108. He also affirmed Collett’s testimony that Collett alerted
Respondent when the road needed to be graveled for safety reasons. Tr. 106-107.
When he heard about the comments made by Helton to Sizemore, Creech contacted
the vice president of operations who told him to gravel the road and Helton’s
comments would be addressed by management. Tr. 104-105.

3.
Contentions of the Parties

The
Secretary argues that Respondent has the responsibility to maintain the roadway
in a condition allowing for full control of a vehicle. Observing a vehicle out
of control is not a necessity.  The Secretary further states that the video
taken by Respondent does not depict the conditions as they existed and should
not be credited. He contends that a vehicle operator was highly likely to lose
control and that broken bones and cuts would be the most likely result of an
accident. Given this, the Secretary argues that the violation was also S&S.
Finally, he argues that Respondent’s negligence was high and the violation was
an unwarrantable failure because the condition was extensive, an imminent
danger order had been issued on the road a short time before, and Respondent
had been advised that the road needed work. The Secretary adds that the inspector
had to issue an imminent danger order to prompt Respondent to abate the
condition.

Respondent
contends that the Secretary failed to provide any demonstrable evidence that
any of its employees or contract employees operated a vehicle that was not in
full control; therefore, the citation should be vacated. It states that even if
a violation existed, it was not S&S because the first two prongs of Mathies
were unproven. It further argues that even if the violation is found to be
S&S, there is no evidence to support a designation of unwarrantable
failure. As evidence of this, Respondent points to preshift reports in which
the examiner states that everything was in good shape, but more rain was
expected. It asserts that this shows its good faith belief that the condition
of the road was acceptable.

4.
Findings of Fact and Conclusions of Law

For the same
reasons as above, I find that the Secretary has failed to prove that Respondent
violated 30 C.F.R. § 77.1607(b). Sizemore admitted that he did not observe any
vehicles operating on the roadway and, therefore, did not observe any equipment
that was out of control. Again, I find that the Secretary may have been able to
prove a violation of a standard pertaining to the maintenance of the roadbed itself,
but he did not prove that vehicles were operated without full control.

Although
not determinative to the outcome of this case, I would also caution the
Secretary in issuing 104(d) citations based upon, at least in large part, a
citation issued to a different mine. While I understand that the haul road
serves two mines owned by the same operator, Section 104(a) of the Act empowers
the Secretary to issue a citation to a mine for a violation of the Act
or its standards. 30 U.S.C. § 814(a)(emphasis added). Nowhere in its language
does it permit MSHA to issue more serious violations to one mine based on the
aggravating circumstances found in another.

ORDER

It
is ORDERED that Citation No. 8369110 remains as issued. It is ORDERED
that Citation Nos. 8369111 and 8369121 are hereby VACATED. It is further
ORDERED that Nally & Hamilton Enterprises, Inc., PAY the
Secretary of Labor the sum of $900.00 within 30 days of the date of this
Decision.

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution:

Joseph
B. Luckett, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

Stephen
Thomas Hamilton, Jr., Esq., Saltsman & Willett, 212 East Stephen Foster Avenue,
P.O. Box 327, Bardstown, KY 40004

/kmb

[1] Hereinafter,
the Secretary’s exhibits will be referred to as “GX” followed by a number. Similarly,
Respondent’s exhibits will be referred to as “RX” followed by a number. The
transcript will be referred to as “Tr.” followed by the corresponding page
number.

[2] The findings of
fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have taken into consideration the interests of the witnesses, or lack
thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each
witness, I have also relied on his demeanor. Any failure to provide detail as
to each witness’s testimony is not to be deemed a failure on my part to have
fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000)(administrative law judge is not required to
discuss all evidence and failure to cite specific evidence does not mean it was
not considered).

[3]According to
Sizemore, a back-dump is an articulating truck used to haul materials. It appears
that this refers to an articulated hauler, which is a heavy duty dump truck
composed of two basic units: the front section called the tractor and the rear
section called the dump body. It is typically used on rough terrain.

[4] The specific
circumstances of the 107(a) order are not at issue here, and I make no judgment
as to its validity. It is only referenced to give perspective to Inspector
Sizemore’s observation of the conditions.

[5] The imminent
danger order is not at issue in this case, and I make no judgment as to its
validity.