Virginia Drilling Company, LLC v. Secretary of Labor and Secretary of Labor v. Virginia Drilling Company, LLC

Read the official release (fmshrc.gov)

Plain-English summary

An MSHA inspector found diesel fuel dripping from a worn line onto the exhaust manifold of Virginia Drilling's truck, which carried ammonium-nitrate/fuel-oil blasting agent over steep mine roads. Judge Thomas P. McCarthy held that the leaking line left the truck in unsafe operating condition and that continued operations made a fire reasonably likely, with burns, smoke inhalation, or death likely for the driver. He affirmed the violation as significant and substantial, retained the fatal-injury and moderate-negligence findings, but reduced the likelihood designation from highly likely to reasonably likely and cut the litigated citation's penalty from $63,000 to $37,416. He also approved settlements reducing two other penalties to $2,900 and $3,848, for a combined payment of $44,164.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.404(a) and 48.31
• Outcome: Citation 8262897 was affirmed as S&S with fatal injury and moderate negligence, its likelihood designation was reduced to reasonably likely, and its penalty was reduced to $37,416; two other violations settled for $6,748, making the total payment $44,164.
• Key point: A fuel leak onto engine components can be S&S when continued normal operations can heat those components enough to ignite the fuel and seriously or fatally injure the driver.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

April 29, 2015

VIRGINIA DRILLING COMPANY,

LLC,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Respondent

CONTEST PROCEEDING

Docket
No. KENT 2011-1466R

Citation
No. 8262897; 8/24/2011

Mine: Blackhawk No. 2 Surface Mine

SECRETARY OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

VIRGINIA
DRILLING COMPANY,

LLC,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket
No. KENT 2012-182

A.C.
No. 15-18998-270046-F279

Mine:
Blackhawk No. 2 Surface Mine

Docket
No. KENT 2012-183

A.C.
No. 15-19515-270059-F279

Mine:
No. 4

DECISION AND
ORDER

Appearances:               Thomas
J. Motzny, Esq., Office of the Solicitor, Department of Labor,

Nashville,
Tennessee for Secretary of Labor

Todd C. Myers, Esq., Rajkovich,
Williams, Kilpatrick & True, PLLC, Lexington, Kentucky for Virginia
Drilling Co., LLC

Before:           
           Judge McCarthy

I.  Statement of
the Case

These cases are before me upon a Notice
of Contest and two related Petitions for the Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d).[1]
Of the three original citations in these dockets, only Citation No. 8262897
remains at issue.

On August 24, 2011, MSHA inspector
Ronnie L. Fletcher issued the citation to Virginia Drilling (Respondent) under
§104(a) of the Act, 30 U.S.C. §814(a), for an alleged violation of 30 C.F.R.
§77.404(a).  Section 77.404(a) states:

Mobile and
stationary machinery and equipment shall be maintained in a safe operating
condition and machinery or equipment in unsafe condition shall be removed from
service immediately. 

The
“condition or practice” section of the citation states:

THE RED MACK
ANFO TRUCK #SL170 IS NOT BEING MAINTAINED IN SAFE OPERATING CONDITION. THE
DRIVER SIDE SEAT IS WORN OUT. ALSO, A DIESEL FUEL LINE IS LEAKING FUEL ONTO THE
EXHAUST MANIFOLD. DUE TO THE HIGH DEGREE OF HEAT IN THIS AREA, THIS CONDITION
CREATES A FIRE HAZARD. THIS WOULD ALLOW THE FUEL TO IGNITE AND ACCELERATE A
FIRE. THIS EXPOSES THE MINER TO SMOKE INHALATION AND/OR FATAL BURN INJURIES.
ALSO, THIS TRUCK IS LOADED WITH APPROXIMATELY 9 TONS OF ANFO, WHICH IS AN
EXPLOSIVE FUEL OIL MIXTURE. THIS TRUCK IS USED DAILY TO LOAD HOLES. THE
OPERATOR REMOVED THIS TRUCK FROM SERVICE IMMEDIATELY.     

Inspector
Fletcher designated the condition or practice as significant and substantial
(S&S), and he designated the gravity as highly likely to result in an
injury or illness that could reasonably be expected to be fatal, with one
person affected.  P. Ex. 2. Respondent’s negligence was designated as moderate.
 MSHA proposed a penalty of $63,000, which included a 10% reduction for the
operator’s good-faith abatement.

The
Respondent denies that it violated section 77.404(a) and contends that the
truck was safe for operation. Even if there was a violation, Respondent contests
the significant and substantial (S&S) designation, gravity determinations,
negligence designation, and the appropriateness of the proposed penalty. R. Br.
13-29.

A hearing was held in Beckley, West
Virginia. The parties presented lay and expert witness testimony, expert witness
reports, and other documentary evidence.[2]
Witnesses were sequestered.  

The primary issues presented are whether
Respondent failed to maintain the Mack ANFO truck in safe operating condition
under§ 77.404(a) because the driver’s side seat was worn out and the diesel
fuel line was leaking fuel onto the exhaust manifold; whether the alleged
violation was S&S, whether the gravity designations -- that an injury was highly
likely and could reasonably be expected to result in a fatal injury to one
person -- were correct; whether the “moderate” negligence designation was
appropriate; and whether the $63,000 proposed penalty assessment was
appropriate.   

After careful review of the record, I
affirm the S&S designation and find that the fuel line leak was reasonably
likely to result in a fire hazard that was reasonably likely (not highly
likely) to result in a fatal injury to the driver of the truck, and that
Respondent’s level of negligence was appropriately designated as moderate. Applying
the criteria set forth under Section 110(i) of the Act in light of my findings
herein, I assess a $37,416 penalty against Respondent.   

On the entire record, including my
observation of the demeanor of the witnesses,[3]
and after considering the post-hearing briefs, I make the following:

II.  Findings of
Fact

A.   
Stipulations
of Fact and Law

The
parties agreed to the following stipulations.

1)         Virginia
Drilling Company, LLC, Contractor I.D. No. F279, was an “operator” at Blackhawk

2 Surface Mine, as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803, at all

times relevant to these proceedings, and is therefore subject to the Federal
Mine Safety and Health Act of 1977.

2)         Blackhawk

2 Surface Mine is a “mine” as that term is defined in Section 3(h) of the Mine

Act, 30 U.S.C. § 803(h).

3)         Virginia
Drilling Company, LLC is subject to the jurisdiction of the Federal Mine Safety
and Health Review Commission, and the presiding Administrative Law Judge has
authority to hear this case and issue a decision.

4)         At
all times relevant to these proceedings, Blackhawk #2 Surface Mine and the operations
of Virginia Drilling Company, LLC had an effect upon interstate commerce within
the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

5)         Virginia
Drilling Company, LLC is a medium-sized operator, with 314,215 hours worked in
2010 and 369,759 hours worked in 2011.

6)         Copies
of the citation in contest in this case and notes pertaining thereto are
authentic and the citation was served on the Respondent by an inspector
employed by the Mine Safety and Health Administration.

7)         The
violation was abated in good faith.

8)         The
Respondent timely contested the violation.

9)         The
proposed penalty will not affect the Respondent’s ability to continue in
business.

10)       A
“certified blaster” is an agent of the operator.

Jt.
Ex. 1.

B.    
The
Inspection and Citation at Issue

Virginia
Drilling is a blasting contractor and subsidiary of Virginia Explosives &
Drilling Company (VEDCO). Austin Sales and Virginia Drilling have separate MSHA
identification numbers. Tr. II, 225. Austin Sales owned the cited truck,
performed maintenance and pre-shift examinations on the truck, and placed its
logo on the door. P. Ex. 3; Tr. II, 70-71, 76, 275.  Counsel for the Secretary
explained that MSHA cited Virginia Drilling and not Austin Sales because the
shot truck work was being performed under the Virginia Drilling contractor
number at the time of the citation.  Tr. II, 72.

On the morning of August 24, 2011, inspector
Fletcher[4]
arrived at the Blackhawk #2 surface mine, a small mine less than a mile long,
to conduct an EO1 inspection. Tr. I, 36-38.  At 2:27 p.m. that afternoon, as a
part of his general inspection, Fletcher inspected a red Mack ANFO truck. Tr.
I, p. 41.[5]
At the time of the inspection, the truck was idling on the drill bench, in
front of a loader spread, about a half mile uphill from the parking lot. Tr. I,
41-42. A blaster and blaster helper from Virginia Drilling were drilling holes
near the truck when Fletcher arrived. Tr. I, 44.

The truck was carrying about nine tons
of ammonium nitrate and fuel oil (ANFO), a pre-mixed chemical compound that is
offloaded into blasting holes. Tr. I, 59, 89; Tr. II, 35-36, 86, 350.  Fletcher
testified that a typical ANFO truck safety inspection takes about thirty
minutes and consists of checking the brakes, lights, steering and leakage. Tr.
I, 45.

When inspecting the truck, Fletcher
determined that the driver side seat was worn out. Tr. I, 45-47; P. Ex. 1, p.
6; P. Ex. 2. With regard to the seat, Fletcher testified that most of the vinyl
was torn off the bottom of the seat and the foam cushion was badly worn on the
left side more than the right side.  Tr. I, 47.  The driver told Fletcher that
the seat was “wearing him out.” Tr. I, 48. Fletcher opined that the driver
would not be able to sit in the seat properly in such worn condition, which
could cause him to lean on one side, slide around the seat, and possibly lose
control of the vehicle. Tr. I, 49-51.

Fletcher testified from personal
experience that he developed blisters, which required bandaging on his tailbone
and buttocks, from driving equipment with “bad seats.” Tr. I, 52. Fletcher did
not provide any testimony that the worn seat condition compromised the
seatbelt.

I find it unnecessary to decide whether Respondent’s
failure to maintain the driver side seat made the truck unsafe to operate or
whether the worn seat was a significant and substantial violation of a
mandatory safety hazard because I find below that the fuel leak itself was a
significant and substantial violation. Certainly, the worn seat did not render
the truck any safer.  

While checking the engine area, Fletcher
observed that the second cylinder fuel line was leaking directly onto the
exhaust manifold. Tr. I, 52-53.  Fletcher further observed moisture around that
area and a steady drip of fuel about every three seconds. Tr. I, 53. The
leaking fuel line was about 3-7 inches from the turbocharger, the hottest part
of the engine. Tr. I, 53-54.

A marked photograph of engine areas,
including the manifold, turbocharger, injection pump, radiator fan, and area of
diesel fuel leak is in evidence as R. Ex.2. Tr. 91-95. The exhaust manifold
allows fumes to exit the cylinder head and away from the engine. Tr. II, 92. The
turbo charger is bolted to the exhaust manifold at the center and it pushes
more air into the engine to make it more efficient. Tr. II, 93, 99. The
injector pump delivers a metered amount of fuel to each injection line that
goes into the engine and excess fuel is returned to the fuel tank. Tr. II,
98-100, 106, 129. The radiator fan is on the front of this particular engine
and blows over the top of the engine to help cool the temperature. Tr. II,
97-98. The fuel injection line that was leaking was from the second cylinder. Tr.
II, 95-96.

Fletcher opined that if the leak was
left uncorrected, it “would catch fire” because the “leak would eventually get
faster or maybe even turn into a spray.” Tr. I, 54. Fletcher did not observe
any smoking, sizzling or smoldering associated with the dripping diesel fuel onto
the exhaust manifold. Fletcher did not conduct a heat test because he did not
have a heat gun available. Tr. I, 78, 79-80.  

Fletcher
asked the blaster helper whether the leak had been disclosed on a
pre-operational check of the vehicle.  Tr. I, 55. Fletcher testified that the
blaster helper could not recall whether he had checked under the hood for leaks
before the shift began. Tr. I, 55.

As a result of his observations,
Fletcher issued Citation No. 8262897 alleging that Respondent failed to
maintain the truck in safe operating condition because the "driver side
seat [was] worn out" and the "diesel fuel line [was] leaking fuel on
to the exhaust manifold." Tr. I, 45-46; P. Exs. 1-2.  Fletcher designated the
condition or practice as significant and substantial (S&S). He designated
the gravity as highly likely to result in an injury or illness that could
reasonably be expected to be fatal, with one person affected.  P. Ex. 2.

On direct examination Fletcher initially
explained his gravity determination of “highly likely” to result in an injury,
as follows: “Well, anytime you are dealing with heat - a heat source and
flammable liquid, you know, you automatically assume, you know, it's probably
highly likely that it's going to ignite.” Tr. I, 57. On further redirect, in an
apparent effort to blunt a pre-trial deposition concession that the gravity
should been written as “reasonably likely,” Fletcher conceded that after
further reflection, the gravity of the citation should have been written as
“reasonably likely to result in an injury.” Specifically Fletcher testified as
follows:

Q. [Mr.
Motzny] Okay. And I think at your deposition
you
said that you would possibly write it as
reasonably likely today.

A.
Yes, I would. I feel that it's probably more reasonably likely.

Q. Can you explain your reasoning for
that?

A. Yeah. It's right there with -- well,
yeah,
maybe I can. I don't know. I'll try.
I just think it's more reasonably likely than
highly likely. I think it's a good chance
that it would happen, but highly likely to me means,
you
know, it's going to happen. I think it's possible that it wouldn't happen, but I think it's reasonably likely that it would, if that
makes
any sense.

The
Court: How come you didn't
write
it as reasonably likely to begin

with?             

The Witness:
I'm
going to lay it off on my
inexperience at the time in that

area.
That’s what I think.

The
Court: Did the fact that
it was an ANFO truck factor into your highly

likely [designation]?

The Witness: Yes, sir.

The Court: Go ahead,
Mr.
Motzny.

Q. [Mr. Motzny] How did that factor in?

A. Well, you know, it had approximately
nine
ton of ANFO on it, you know?
And
if that thing catches on fire and an
explosion was to happen, I think that
debris is going to go all
over
the place.

Tr.
I, 58; see also Tr. I, 68 (where Fletcher conceded on cross examination that based
on additional experience since issuing the citation, he would mark the gravity
differently).  

When asked why he designated the gravity
of the type of injury that could reasonably be expected to occur as “fatal,” Fletcher
testified, “… if that thing caught on fire and an explosion occurred, I feel
that it would probably be fatal.” Tr. 60.  He described possible injury
scenarios to the driver of the truck as smoke inhalation from a fire, and death
from burn injuries, entrapment, or an explosion. Tr. I, 60-62.  

Two of Virginia Drilling's witnesses,
Ralph Roark, maintenance supervisor for Austin Sales, and Anthony Kidd, a
representative from VEDCO Holdings, parent company for Virginia Drilling and
Austin Sales, testified that the leak was caused by a deteriorating
"O-ring" inside the engine cylinder. Tr. II, 240-41. The O-ring seals
the fuel line connection and helps return unused fuel back to the fuel tank
(i.e., return fuel). When an O-ring deteriorates, it allows the return fuel to
seep out from the connection between the fuel line and cylinder. Tr. II,
244-45. Roark conceded that the O-ring at issue could have deteriorated
further, but opined that Respondent would have caught it and made a repair. Tr.
II, 127.

To abate the citation, Virginia Drilling
ordered two new fuel injector lines, O-rings, and a new seat. Tr. II, 84,
130-31; R. Ex. 1. Field mechanic, Aaron Pressley, made the repairs. Tr. II, 99.
Pressley did not testify.  

Roark did not observe the cited diesel fuel
leak. Roark testified that he has encountered about 50 similar “small type of
seeps” throughout his tenure.  Tr. II, 99-100.  Roark opined that such leaks
are caused by deterioration of the O-ring on an injection line, which allows
return fuel from the engine to seep out around the stem of the injection line
where the nut meets the cylinder head, instead of returning to the fuel tank.  Tr.
II, 99-101, 126-27.  On direct, Roark testified that there was no broken fuel
line, which causes a different type of leak.  Tr. II, 103. On cross, however,
Roark conceded that he never determined whether there was a problem with the
fuel line or with the O-ring and that he does not normally examine
pre-operational records. Tr. II, 131, 135.  Like the blaster helper, Roark did
not know whether a pre-operational check had been done on the cited truck. Tr.
II, 136.

Roark testified that the type of leak at
issue can happen at any time, that it is typically discovered during a
pre-operational check or a separate 250-mile maintenance check, and that it is
fixed by taking the engine part, replacing the O-ring, and usually replacing
the injection line, without any attention given to the turbocharger. Tr. II,
102-05.  Roark further testified that the working temperature on the engine in
these Mack trucks is about 180 degrees because there is a 180-degree
thermostat, which opens and closes to control the antifreeze flowing through
the motor to maintain the temperature.  Further, there is a belt-driven water
pump at the front of this engine, which pulls water from the radiator and
pushes it through the block and head assembly and then back through the
radiator again.  Tr. II, 102.

Roark testified that he has done
diagnostic testing with a heat gun to measure the temperature of an exhaust
manifold on a similar shot truck, and most manifolds run around 200 to 250
degrees.  Tr. II, 105. Roark testified that the operating range of this truck
engine is about 500 RPMs to a maximum of 2100 RPMs, as regulated by a governor,
which keeps the engine from over revving.  Tr. II, 106, 132-33.

More specifically, Roark testified that
after the citation was written, two of Respondent’s witnesses (Roark and Kidd)
started up a similar Mack truck with the same type of engine and “held the
throttle down until we got the temperature up to an operating temperature.” Tr.
108-09.  They then measured the surface temperature of the exhaust manifold
with a heat gun at 246 degrees Fahrenheit, while the truck was idle. Tr. II,
108-09; R. Ex. 3.[6]
During this test, which lasted about 30 minutes, Respondent did not drive the
truck around and Roark could not recall how long Kidd kept the throttle down.
Tr. II, 110-12.

Two or three weeks before trial,
Virginia Drilling personnel again tested the cited truck with a heat gun. Tr.
II, 113-115. Respondent measured the temperature of the manifold surface at
30.9 degrees before the truck was started.  Tr. II, 114-15; R. Ex. 4. Respondent
then ran the engine to an operating temperature of 180 degrees and measured the
surface temperature of the manifold with a heat gun at 232 degrees. Tr. II,
115-16; R. Ex. 5.  Respondent then twice drove the truck with an estimated 3/4
load of powder from the magazine site down to the tipple and then back up the
steepest grade (45 degree angle) and measured the surface temperature of the
manifold after each run at about 409 degrees. Tr. II, 116-19; R. Ex. 6. Roark
unconvincingly estimated the size of the load by tapping the side of the truck
with his hand to determine the sound, but he did not load the truck.  Tr. II,

120. Roark was unable to testify that these road tests were typical of a drive
     from the magazine site to the bench because the route is always different. Tr.
     II, 124.  In fact, Roark was not employed at the mine when the citation was
     written and did not know the daily routes of the powder trucks to the bench. Tr.
     II, 125.  Roark was unsure whether the temperature inside of the engine ever
     exceeded the auto-ignition temperature of the diesel fuel. Tr. II, 134.

Roark testified that Respondent’s powder
trucks have had fuel leaks, but he is unaware of any powder trucks that have
caught fire because of a fuel leak, and unaware of any Virginia Drilling or
Austin Sales miner injured in a vehicle fire. Tr. II, 121-22. When asked by the
undersigned why Respondent repaired such fuel leaks, Roark testified rather
evasively that Respondent did not want any petroleum product to leak on the
ground and cause a slipping hazard.  Tr. II, 122-23.  In Roark’s opinion, the
small amount of diesel return fuel that was leaking was unlikely to start a
fire because the temperature of the engine block would not get hot enough to
ignite the fuel. Tr. II, 123.

I find Respondent’s testimony concerning
the results of its field tests to be of little probative value in determining
whether the cited fuel leak contributed to the reasonable likelihood of a fire
hazard. These tests were performed in anticipation of litigation, after the
citation was issued.  The simulated conditions were executed with knowledge
that temperature readings would be taken. This likely affected the operation of
the vehicle, which was not the cited truck.  No video evidence of the tests was
submitted and the Secretary was not present during the test. Finally, the tests
were conducted over a short period of time and did not reflect a typical work
day involving continuous engine load.

C. Expert Testimony Regarding the
Likelihood of a Fire Caused by the Fuel Leak

Whether this particular fuel leak was
reasonably or highly likely to result in a fire turns on whether the engine
manifold or turbo charger on the Mack ANFO truck could reach a temperature high
enough to ignite the leaking diesel fuel. The Secretary and the Respondent
presented expert witnesses on the fire hazard and possible ANFO explosion
issues.

1.       Testimony from
the Secretary’s Expert, James Louis Angel

As noted, James Angel testified as an
expert witness for the Secretary. Angel is a mechanical engineer in the
mechanical engineering and safety division of MSHA’s Approval and Certification
Center, in Triadelphia, West Virginia. Tr. I, 107; Tr. II, 62. Angel works
closely with the Center’s diesel lab to review test information and procedures
that primarily involve underground equipment, including tests of diesel engines
on underground equipment.  Tr. I, 112, 153; Tr. II, 56-57.  Angel testified
that the temperatures ranges for ignition tests on surface and underground
equipment essentially would be the same.  Tr. II, 57.

Angel has been employed by MSHA for over
thirty years. Id. Before that, he spent two years working at
Westinghouse Electric in Pittsburgh. Tr. I, 106. Angel earned a Bachelor’s of
Science degree in Mechanical Engineering from the University of Dayton, and
holds an authorized representative card for technical assistance and accident
investigation. Tr. I, 107, 152. Angel serves on several committees for the Society
of Automotive Engineers, a national organization for consensus standards
involving all forms of self-propelled vehicles. Tr. I, 111.  

Angel’s expert witness report (P. Ex. 3)
was undertaken to determine whether the truck presented an acceptable safety
risk because of the leak of the fuel injector. Angel was concerned with the
risk of fire.  Tr. I, 108.  Angel testified that a fire risk exists when four
elements are present: (1) a source of fuel, such as a flammable or combustible
material; (2) oxygen (always present in the atmosphere (Tr. 127); (3) a source
of ignition energy; and (4) factors that bring the first three elements together.
Tr. I, 108.

Angel testified that the fire risk
associated with diesel fuel is typically based on the auto-ignition temperature
of the combustible fuel. Tr. I, 109.  Auto-ignition temperature is the lowest
temperature at which a combustible material ignites in air without a flame or
spark. P. Ex. 3, p. 4, n. 16.  By contrast, the flash point is defined as the
lowest temperature at which a liquid gives off vapors at a sufficient rate to
support a momentary flame across its surface. P. Ex. 3, n. 14.  

In order for diesel fuel to ignite, a
competent heat source must reach the auto-ignition temperature and then contact
the fuel or its vapors. Angel testified that a potential competent heat source
could ignite the diesel fuel because the fuel was leaking onto the exhaust
manifold below, and the turbo charger was close to the fuel leak. Tr. I, 114.  

The auto-ignition temperature for fuel
is determined in a laboratory setting by heating the fuel in an oven until it
ignites into flame.  Tr. I, 109. Angel testified that the auto-ignition
temperature for diesel fuel generally ranges from 450 to 500 degrees
Fahrenheit. Tr. I, 109. Petroleum Company No. 2 diesel fuel, the diesel fuel
used at the time the citation was issued, has a published auto-ignition
temperature of 500 degrees Fahrenheit, as listed on the manufacturer’s Material
Safety Data Sheet (MSDS). P. Ex. 3, n. 14; see also Tr. I, 109.  Angel
testified that many “real-world” environmental conditions may result in a much higher
auto-ignition temperature. Tr. I, 110.

Based on National Fire Protection
Article (NFPA) article 921, Angel testified that when an accident investigator
tries to identify the most likely ignition sources for a fluid at an accident
scene after a fire occurs, he looks for ignition sources at least 360
degrees higher than the auto-ignition temperature, although that it is not a
hard and fast number. Tr. II, 27. That after-the-fact analysis, which Angel was
hesitant to adopt, would put likely ignition at about 860 degrees Fahrenheit. Tr.
II, 26.

Before a fire occurs, Angel testified
that “you have to take a more conservative approach. . .” and “look at a range
of temperatures where that fuel could possibly ignite. . .” Tr. II, 28. Based
on a study testing droplets of diesel fuel on stainless steel materials, Angel
testified that he would expect the droplets of diesel fuel in this case to
ignite in the range of 750 to 1050 degrees Fahrenheit, and approaching 100%
certainty at 1050 degrees Fahrenheit. Tr. I, 110; Tr. II, 28, 46; P. Ex. 3, p.
4, n. 17.  Angel did not recall what the Mack truck’s manifold was made of,
although he testified that they are typically cast iron, which tends to be more
porous than stainless steel, and would have a lower ignition temperature
because the greater porosity would hold the fluid longer and generate more
vapors that could ignite.  Tr. II, 29, 55-56.

When asked whether the amount of fuel
dripping on the manifold factored into his analysis, Angel testified it did not
because any fuel leaking onto a hot surface presents a hazard of fire and the
conditions of fire containment at that point become less important than the
fact that there has been a loss of control in the development of a fire. Tr. I,
113; see also Tr. II, 65. Angel candidly conceded that in most cases, a fine
mist or spraying leak provides more of a mechanism for ignition than droplets
of fuel, although he alluded to research that shows the opposite. Tr. I, 113;
Tr. II, 23.[7]
Based on experience, Angel testified that temperatures in the range of 700-800
degrees were a competent ignition source for hydraulic fuel, and he would look
for higher temperatures for diesel fuel in the 750-1000 degree range, with
temperatures approaching 1000 degrees Fahrenheit to have a 100% probability of
ignition.  Tr. II, 39.  

Angel next identified the exhaust
manifold and the turbo charger as two potential heat sources at the location of
the fuel leak that could ignite the diesel fuel.  Tr. I, 114.  When asked why
Angel considered the turbo charger in his heat source analysis, Angel testified
that the vapors released from the drops of fuel on the exhaust manifold are
ignited by hot surfaces. He testified that even if the temperature of the manifold
was insufficient by itself to ignite those vapors, “…having a large amount of
material in close proximity where those vapors could travel, it would be more
likely that they could also be ignited by that much hotter surface.”  Tr. I,
118.[8]

Angel explained how a diesel engine
functions as a compression-ignition engine. When diesel fuel is injected into
the cylinder, the piston compresses the mixture of fuel and air, and heat from
the compression causes the mixture to ignite and release thermal energy that
turns the crankshaft and powers up engine output. Tr. I, 114.  Angel explained
that the manifold gets hot because the burnt fuel-air mixture exits the engine
through the manifold and turbo charger and heats up both as it exits the
exhaust system.  Tr. I, 114.  Angel further explained that the turbo charger
uses energy from escaping hot exhaust gases to spin a turbine on the compressor
side of the turbo charger, thereby forcing more air into the engine, which
allows use of a greater amount of fuel and results in greater power. Tr. I,
115.

Angel expected gas temperatures exiting
the engine to be at the high end of 1200 degrees Fahrenheit for turbo-charged
diesel engines, regardless of engine design.  Tr. I, 116.  Angel testified that
the exterior surface of the turbocharger and manifold would be slightly less
than the exhaust-gas temperature, although he had not done any research
comparing the variations in temperature.  Tr. II, 58, 59.  Angel further
testified that the turbo charger could reach a maximum temperature of 1200
degrees Fahrenheit during normal operations, because the gases must exit the
exhaust and make a loop around and constantly impinge upon the walls of the
turbine, whereas the manifold would reach temperatures slightly less. Tr. I,
118; Tr. II, 14; Tr. II, 58.[9]

When asked by the undersigned what
“slightly less” meant, Angel testified that the flat area of the manifold near
the fuel leak at the number two cylinder, would be around 900 degrees
Fahrenheit when the truck was operating at full load. Tr. I, 121; Tr. II, 16. Angel
testified that areas of the manifold at the end of the cylinders, such as the
elbows, would reach about 1000 degrees Fahrenheit during normal operation at
full load. Tr. I, 120; Tr. II, 15-16. Angel had no information from Respondent that
there was any shielding or insulated material on the manifold to keep the
outside surface of the manifold cooler.  Tr. I, 125-26; see also Tr. II, 63-64.

When Angel used a dynamometer to test an
idle engine running at about 600-800 RPM’s, the engine temperature measured
about 200 to 250 degrees Fahrenheit. Tr. I, 141. A dynamometer measures force
torque or power by placing a simulated load on an engine. Tr. I, 141. The load
is the force counteracting the force of burning fuel firing the pistons inside
the cylinder. Tr. 141. Dynamometer tests are conducted in a laboratory setting
for the purpose of checking engine power capability. Tr. II, 254.  Many MSHA
tests relied upon by Angel were executed using a dynamometer. Tr. II, 166.

Angel testified that engine load affects
how hot engine components will become. As engine load increases, power demand
also increases. If a truck operator presses the accelerator pedal, more fuel is
injected into the engine, and the greater mass of fuel flowing within the
engine is “. . . able to heat up the surfaces to a hotter area to overcome any
cooling on the external surfaces.” Tr. I, 121.

Angel testified that the engine load
would have to reach 75 percent of the full torque value of the engine, such
that the engine temperature would rise to at least 700 degrees or
higher, in order to ignite the diesel fuel.  Tr. I, 121-22, 140; Tr. II, 47. Angel
testified that he would expect the engine temperature to reach this 75% threshold
under normal mining operations. Tr. 1, 122.  

Q.        Okay. Would
you think that this red Mack ANFO truck would get under that much load during
normal mining operations?

A.        I
would expect the engine to be able to operate up to its full load. Mining
conditions change. Steepness of the road, the load on the truck, all these
factors play into an expectation that the trucks going to be used to reach its
maximum power outlet that’s controlled by the engine.

Tr. I, 122.

Angel testified
that the truck would reach the 75 percent threshold when it was performing its
maximum work traveling up steep hills with a heavy load at a high rate of speed.
Tr. I, 140; Tr. II, 63. On cross examination, Angel testified that he would
expect the truck to reach full capacity based on his knowledge of the mining
industry and the heavy-duty use that such equipment endures: “The truck
capabilities are typically fully used in mining applications. They’re heavy
duty use, so I would expect that in a mining application it would encounter
conditions that would require full-power control.  Tr. II, 17.

Angel was
skeptical about the accuracy of Respondent’s field tests to measure engine temperature
under normal mining conditions.   

Q.        Would
it be difficult to test this engine – – to do a field test of an engine of this
type?

A.        It
would be difficult to control the load on the engine in the field. You could
test the engine over some specific course, you would expect the mining
conditions to change to require the engine to need to develop more power,
therefore higher temperatures.

It would be
difficult to do one test of the engine over a specific mine road and say that
it is applicable to the full range of operation of the truck.

Tr.
I, 123-24.  

In sum, Angel concluded that the
requisite confluence of factors was present that would start a fire, i.e.,
leaking diesel fuel mixing with atmospheric oxygen on an engine component that
can reach temperatures that will ignite the diesel fuel. Tr. I, 127. Angel
opined that if the leaking fuel line were left unabated, “I would expect the
vibration corrosion mechanical stresses to keep on degrading the system,
causing the leak to increase.” Tr. I, 127.

When asked whether or not the cited
condition contributed to a fire risk, Angel testified that “… the hazard of a
fire is a high likelihood and the consequence of a fire, injury to personnel
who are - - that may report a possible explosion of the ANFO, presents an
unacceptable safety risk to the person.”  Tr. I, 127.  Angel testified that if
a fire started in the engine compartment, the leaking diesel fuel would burn
until it reached other combustible material present, such as rubber fuel lines
lubricating the oil lines that go to the turbocharger or the hood, and
generally as the fire spreads past the firewall of the engine, it consumes the
entire vehicle, resulting in fatality for the driver trapped in the cab.  Tr.
I, 127-28.  Angel recalled a loader accident that he had investigated in which
a hydraulic fuel line ruptured and was most likely ignited by a hot engine manifold
or turbo charger, which caused a large fire trapping the operator inside the
cab. Tr. I, 128.

Addressing the issue of whether the ANFO
was capable of exploding in the event of a fire on the truck, Angel testified
that “… it’s not generally accepted in the industry that ANFO can explode if
it’s subject to a fire. Most likely, it would burn, but under conditions where
it’s contained, the ammonium nitrate can heat up and become more sensitive to
explosion and result in an explosion rather than just burn.” Tr. I, 129.

When asked by the undersigned whether
“an explosion here was highly likely to occur, or a fire was highly likely to
occur, or both,” Angel testified as follows:

THE WITNESS: The hazard is the fire. I
believe that that had a likelihood of occurrence. The possible consequences
could have been injury or death of the single individual operating the vehicle,
or in the worst case scenario, that fire could spread to the ANFO truck and
result in a large explosion.

That would have
exposed people in a large area around the truck. So the overall risk estimate
from the likelihood of the hazard to the possible consequences presents a high
risk and an unacceptable safety condition.

JUDGE McCARTHY: And why do you believe
that the hazard of a fire was highly likely as opposed to reasonably likely?

THE WITNESS: Because we have indications
that all three -- or all four elements of the -- all three elements of the fire
triangle are present. They're not only present, but they have been brought together,
and that makes it highly likely for a fire -- presents a high likelihood that
the fire will occur. If there was some separation of the fuel source from the
ignition source, that would lower the likelihood. In this case, all of the
elements had been brought together.

Tr.1,
129-130.

On
cross examination, Angel confirmed that his report found a high likelihood of a
fire occurring because all three legs of the fire triangle (fuel, competent
ignition source, and oxygen) were brought together. Secondary factors, such as
fire prevention, other flammable materials present, and the flow of air over
the fire, can control or prevent the consequences of a fire, but a high
likelihood of fire is reached once the three legs of the triangle are brought
together.  Tr. II, 43-46.  Angel declined to comment on inspector Fletcher’s
gravity designation because he had not been trained in that, but for purposes
of his risk evaluation, Angel testified that “for a reasonable expectation of a
fire, there has to be a high likelihood or a high likelihood of a fire. Those
are both the same.” The high likelihood is reached when the three elements of
the fire triangle conjoin.  Tr. II, 49.

In support of his position, Angel’s testimony
and expert report relied on a 2006 draft report from his Center evaluating an
emulsion truck explosion at ASARCO’s Ray Open Pit Cooper Mine near Kearny,
Arizona.  P. Ex. 3, n. 18. Angel explained that the report was a draft because
it was based on technical support findings to the district, and that only MSHA
headquarters is responsible for issuing any final report. Tr. I, 132-33.  The
Secretary waived any deliberative process privilege concerning the contents of
the draft report, and over Respondent’s objection, I received the report into
evidence, with concerns about weight to be given to the draft report, as
opposed to its admissibility. See Tr. 1, 131-38; Tr. II, 66-67. On cross
examination, Angel did not know why a final report was not published, although he
testified that such a result was not unusual for non-fatal accident reports.  Tr.
I, 29-31.

Thereafter, Angel testified, over
Respondent’s hearsay objection, to a discussion with the report’s drafter, Mr.
Lob, a purported expert in explosives, which Angel was not. Angel was told by
Lob that the cited scenario at Virginia Drilling and the situation involving
the Ray Open Pit “were analogous, that there were conditions where the ammonium
nitrate on both trucks could become sensitized by fire and result in an
explosion.” Tr. I, 139; Tr. II, 33-34.  On questioning from the undersigned,
Angel admitted that he brought the Ray Open Pit incident to Lob’s attention,
not vice versa.  Tr. II, 37. On cross, Angel testified that MSHA had concluded
that a spraying hydraulic fuel leak was the fuel source for the Ray Open Pit
fire and that hydraulic fuel would ignite in the 700-800 degree range, whereas diesel
fuel would ignite at a higher temperature range, but approach 100% probability
at 1000 degrees.  Tr. II, 40-41. The ignition range would vary based on the
type of hot-surface material, the way the fuel is deposited on the hot surface,
and the way the vapors are dissipated. Tr. II, 41-42. Angel testified that the
vapors can move several inches, and within several inches, you find the
turbocharger at a higher temperature.  Tr. II, 43.

Angel testified to his understanding
that the blending or mixing of the ammonium nitrate and fuel oil occurred on board
the cited Mack ANFO truck, and the mixture was then discharged.  The record
establishes that this understanding was based on what Lob told Angel based on
what Angel told Lob.  Tr. II. 34-36.  On this issue, I find more reliable the
testimony of maintenance supervisor Roark. Roark testified that the truck does
not have a mechanism to mix the fuel and powder. Rather, the ANFO is mixed in a
delivery truck in the powder bin before being loaded on the shot truck.  Tr.
II, 86-87.

Although Angel never tested the specific
type of Mack engine at issue, he testified that the combustion of diesel fuel
is the same across engines, and that manufacturers generally want to achieve
the maximum power out of the engine, so they regulate the fuel to get that power.
Tr. I, 124. On cross, however, Angel conceded that diesel engines can run
different (hotter or cooler) depending on the size and type of equipment and
its function. Tr. II, 23.

Respondent’s cross examination attempted
to chip away at the competency of Angel’s testimony. Respondent established
that Angel has never personally tested or designed a diesel engine or
participated in any heat tests done on the engine components or exhaust air
temperatures of a Mack truck. Tr. I, 112, 153; Tr. II, 9; see also Tr. II, 56.  Angel
has never heard of a fuel leak on a Mack truck manifold that caused a fire. Tr.
II, 11.  Angel is not a mechanic and has never repaired a Mack engine or
turbocharger. Tr.. I, 154-55. He does not have a commercial driver’s license
and has never driven a commercial vehicle or a Mack truck.  Tr. I, 152-53. None
of the testimony Angel provided regarding engine temperature had anything to do
with a Mack truck on a diesel engine.  Tr. I, 153.  His temperature range
estimates were based on what he had learned about MSHA tests on underground
equipment.  Tr. II, 8-9, 11. Further, Angel is not a certified fire or
explosives investigator. He has no formal education or courses in fire
sciences, explosives, or thermodynamics, other than mechanical engineering
courses, although he has had a lot of experience and interaction on fire
protection issues. Tr. I, 153-54.  

Angel conceded that in the event of an
ignition, he would expect the diesel fuel to burn and smoke, and that one would
be able to smell it.  He testified that the absence of these conditions at the
time of the citation would indicate that the temperature was below the
competent ignition-source threshold. Tr. II, 11-12. In fact, if the truck was
stopped and idling on the bench while powder was being augured, Angel would not
expect such auxiliary functions to tax the engine to a level high enough to
cause an ignition.  Tr. II, 12-13. Rather, Angel testified that the engine is
designed to operate at its full range of power and if it reached that level,
the fuel leak could cause surface temperatures to ignite.  Tr. II, 13.

2.      Testimony from
Respondent’s Expert, Lon Dimitrios Santis

Lon Dimitrios Santis testified as an
expert witness for Virginia Drilling. Santis is a consultant with Explosives
Risk Managers, LLC. Tr. II, 314. At hearing, Santis had about 20 hours invested
in this case. Tr. II, 395.

Santis has a Bachelor’s and Master’s
degree in Mining Engineering from the University of Pittsburgh. Tr. II, 315. He
has worked in the explosives industry since 1986, including a 12-year stint
with the U.S. Bureau of Mines and time spent at the National Institute of
Occupational Safety and Health (NIOSH). Tr. II, 317. Thereafter, he became
manager of technical services for the transportation, distribution and security
of explosives at the Institute of Makers of Explosives (IME).  Tr. II, 317-18. He
is chairman of the technical committee on explosives at the NFPA, a nationally recognized
organization that establishes fire safety standards. Santis serves on the
NFPA’s lightning and electrical committees. Tr. II, 323-24.

Santis has testified before Congress as
a representative for the explosives industry regarding bulk transport of
explosives equipment in a hearing about the DOT special-permit process, and he
testified on another occasion regarding the need for MSHA to update explosives
regulations. Tr. II, 319-21. Santis has published 40 articles on a wide variety
of explosives topics. Tr. II, 322. He holds secret clearance from the
Department of Homeland Security (DHS) for classified information concerning
explosive threats to the homeland. Tr. I, 322-23.

Santis was retained by Respondent to
evaluate the citation issued and to provide an expert opinion on whether a
violation of the cited standard occurred, and the appropriateness of inspector
Fletcher’s assessment of gravity. Tr. II, 315. Santis prepared an expert report
and supplemental report, R. Exs. 7 and 8, respectively. Tr. II, 314. Santis has
never testified in an MSHA case before, and he could only recall reading one
Commission case, which involved storage of explosives in a magazine.  Tr. II,
334-35, 341.

Santis has never been involved in a case
concerning a similar type of diesel fuel leak, although he understood such
leaks to be a common occurrence with diesel engines. Tr. II, 325-26. Santis
testified that there were no photographs of the leak, and based on Fletcher’s
testimony, Santis perceived the leak to be very small. Tr. II, 325.

Santis characterized ANFO as a blasting
agent, a less sensitive form of explosive that required a stronger stimulus and
both a detonator and booster to cause an explosion.  Tr. II, 331-32; R. Ex. 7,
p. 6.  He testified that ANFO is on the low end of the explosives sensitivity
scale, and to detonate, the amount of heat input into the explosive by the fire
must exceed the amount of heat that can be given off by the explosive.  Tr. II,
352; R. Ex. 7, p. 9.

Santis opined that a violation of
section 77.404(a) did not occur because in order for equipment to be unsafe,
there has to be a reasonable probability of harm, and there was no reasonable
probability that a fire could occur from the diesel leak. Tr. II, 333, 366-67.  Santis
explained that the temperature measurements made on the manifold of the vehicle
“came nowhere near approaching the temperatures necessary to cause ignition of
the diesel fuel and also the amount of fuel that was leaking was so small.” Tr.
II, 336, 399.[10]
 Santis favorably cited Angel’s stainless-steel, diesel-fuel drop laboratory
study in which diesel fuel did not ignite below 752 degrees Fahrenheit.  Tr.
II, 355; R. Ex 8, p. 6, referencing P. Ex. 3, n. 17.  Santis testified on cross
examination that engine temperatures would have to approach 750 to 800 degrees Fahrenheit
before he considered the diesel leak unsafe due to the probability of fire, and
that a larger volume of fuel would make the fire more dangerous. Tr. II, 396-97.

Given the location of the radiator fan
blowing ventilation over the area while the engine was running, Santis could
not see any way that an ignition could occur under such conditions.  Tr. II,

336. Santis noted that Angel’s report was based on vapor igniting and not on
     the ignition of the actual liquid that had dropped on the surface. He further
     testified that the ventilation fan blowing across the manifold would quickly
     disperse any vapors off the manifold before they could accumulate to the point
     of ignition. Tr. 361. Santis testified that ignition was dependent upon the
     volume and surface area of the leak and the length of time that the vapors were
     exposed to the ignition temperature, which time was reduced by the movement of
     air by the radiator fan across the manifold. Tr. II, 361-62.  Santis further
     testified that had the small amount of dripping fuel ignited, it would have
     been readily extinguished, and unlikely to have spread quickly or resulted in a
     conflagration. Tr. II, 363.  On cross, however, Santis had no knowledge of how
     quickly a leak like this would be caught and repaired by Respondent, nor
     whether most leaks are caught before the truck is put in service. Tr. II,
     390-91.

Based on his experience and research,
Santis was not aware of a fire starting in a vehicle based on the cited
conditions and he found no hazard.  Tr. II, 336-37, 390. Based on assumption
piled on assumption, Santis estimated that a vehicle fire from all causes would
occur about every 4 million vehicle days. Tr. II, 353-54. Santis acknowledged,
however, that a hydraulic leak was alleged to have caused the vehicle fire in
the “Ray pit” case relied on by Angel.  Tr. II, 338. Santis testified that
there was a much lower likelihood of injury in the current case than in the
incidents cited in Angel’s report, which involved either a spray of high-pressure
hydraulic fluid, or a spill of a large volume of fuel during a refueling
activity.  Tr. II, 364-65.

Based on the MSDS, Santis testified that
at 360 degrees Fahrenheit, 5% of the diesel fuel would have started to vaporize.
 Santis noted that Fletcher did not see any smoke or vapors coming off the
manifold.  Tr. II. 339-40.  Santis testified that well before temperatures
became high enough to cause an ignition, smoke and vapors would be visible. Tr.
II, 339.

Santis further opined that it was
extremely unlikely that the cited condition would lead to a fatality because
three improbable events had to occur: a fire; loss of control of the fire, and
the detonation of explosives actually harming people.  Tr. II, 343. In fairly
leading testimony on direct, Santis testified that even in the unlikely event
that a fire occurred, the fire was unlikely to detonate the ANFO, although
detonation was a possibility, as evidenced by a Canadian incident in which a
tractor-trailer carrying a mixed load of explosives rolled over, burned and
detonated. Tr. II, 345, see also Tr. II, 393 (instant ANFO mixture could
undergo a DDT and detonate in 30 minutes). Santis also emphasized that Virginia
Drilling had evacuation procedures and had trained their employees on how to
respond to a vehicle fire. Tr. II, 347. On cross, however, Santis conceded that
9 tons of burning ANFO would give off some fumes, even if it did not explode,
and one would want to stay upwind from the burning ANFO.  Tr. II, 392.

Santis attempted to distinguish the Ray
pit incident cited by Angel because that case involved a batch mixer for
ammonium nitrate, slurry, fuel, a sensitizer and perhaps other chemicals,
whereas Respondent used just ammonium nitrate and diesel fuel, which were premixed.
 Tr. II 349-50, 394; R. Ex. 8, last page, figure 2. Santis opined that only the
material in the batch mixer detonated at the Ray pit, and there was ammonium
nitrate prell and portions of the truck that did not detonate. Tr. II, 351. Further,
no one was hurt. Tr. II, 352.

Santis was rather evasive on initial
cross.  Tr. II, 367-71, 384, 386-87.  Santis has never tested diesel engines or
measured engine temperatures when a radiator fan is on and off. Tr. II, 372.

378. Santis never measured the truck’s exhaust manifold temperatures or the
     turbo charger temperature, although he purportedly gave Respondent some email
     instructions about conducting its tests once the truck reached its steady
     temperature.  Tr. II, 373-74, 376-77, 379.  Those instructions were not offered
     into evidence.  

Santis relied on Respondent’s
measurements and Respondent’s design of the tests. Tr. II, 373, 382. The
temperatures cited in his report were based on those measurements and Santis
played no role in gathering the data.  Tr. II, 378, 380.  Santis testified that
he knew that Respondent measured multiple points on the manifold because,
“That’s what I told them to do, and that’s what they did. Tr. II, 379. Santis
recommended that Kidd measure the temperature on the manifold in operating
condition. Tr. 400. Santis did not recommend that Respondent have independent
testing performed, or that Respondent use a dynamometer during testing. Tr. II,
400.  

Santis did not observe the tests, but
was told by Respondent that they ran the truck up a hill for 10 minutes during
the second test. Tr. II, 374, 376. Santis conceded that he did not know whether
the test course would elicit the hottest temperature that the manifold would reach,
but he testified that the load would be greater than that needed to move around
a shot bench and unload ANFO with an auger. Tr. II, 377-78. More importantly,
Santis conceded on cross examination that in rendering his expert opinion, he
did not consider what would happen to the leaking fuel line under continued
normal mining conditions. Tr. II, 395. Rather, his opinion was confined to the
condition of the truck as found on the bench by Fletcher. Id.

3.         Limited
Rebuttal Testimony from Angel

In an effort to rebut Kidd’s testimony
that the source of the leak was from return fuel, Angel testified that he had
no information about whether the source of the leak other than the fact that
the citation indicated that the leak came from the diesel fuel injector line,
which meant that the supply of fuel to the cylinder was escaping and would degrade
the system and increase over time. Tr. II, 403-08.

IV.
 Analysis and Disposition

A.    The Violation of
Section 77.404(a)

Section 77.404(a) imposes two duties
upon a mine operator: (1) to maintain both mobile and stationary machinery and
equipment in safe operating condition, and (2) to remove unsafe equipment from
service immediately. The Commission has held that derogation from either duty
violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979).  

The Mack ANFO truck cited by inspector Fletcher
was mobile equipment. It is undisputed that such mobile equipment was in
service when cited.  The dispute is whether the truck was maintained in safe
operating condition.  I find that the truck was not maintained in safe
operating condition because of the fuel leak, and was not removed from service.
 Accordingly, Respondent derogated both duties.  I find the violation.  

Equipment is in unsafe operating
condition under section 77.404(a) when a reasonably prudent person familiar
with the factual circumstances surrounding the alleged hazardous condition,
including any facts peculiar to the mining industry, would recognize a hazard
warranting corrective action within the purview of the applicable regulation. Ambrosia
Coal & Construction Company, 18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).  Applying this test, I
find that a reasonably prudent person familiar with driving a loaded Mack ANFO
truck up and down 15-20% graded mine terrain would recognize that a diesel fuel
line leaking fuel onto the exhaust manifold in close proximity to the turbo-charged
engine constitutes failure to maintain the truck in safe operating condition,
free from hazards that require corrective action.  Accordingly, I find that the
Secretary has proven by a preponderance of the evidence that Respondent
violated Section 77.404(a) by failing to maintain the Mack ANFO truck in safe
operating condition, and by failing to remove it from service.  

B.     The Fuel Leak Violation
of Section 77.404(a) was Significant and Substantial

1.      Legal Principles

The Mine Act describes an S&S
violation as one “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health hazard.”
30 U.S.C. § 814(d)(1). The Commission has held that a violation is S&S “if,
based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). Consistent with the language of section
104(d)(1), it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel Mining Co.,
6 FMSHRC at 1575. “The fact that injury [or a condition likely to cause injury]
has been avoided in the past or in connection with a particular violation may
be ‘fortunate, but not determinative.’” U.S. Steel IV, supra, 18
FMSHRC at 867, quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb.
1986). See also Elk Run Coal Co., 27 FMSHRC 899, 906-07 (Dec. 2005);
Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).

To establish an S&S violation under National
Gypsum, the Secretary must prove the four elements of the Commission’s
subsequent Mathies test: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard – that is, a measure of danger to
safety – contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature. See
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord
Buck Creek Coal, supra, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide
acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor,
861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An
S&S determination must be based on the particular facts surrounding the
violation and in the context of continued normal mining operations. Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984)).

Often, it is the third element of the
S&S test that is difficult to apply. This element is established if the
Secretary proves “a reasonable likelihood the hazard contributed to will result
in an event in which there is an injury.” U.S. Steel Mining Co., 7 FMSHRC
1125, 1129 (Aug. 1985).  “The Secretary need not prove a reasonable likelihood
that the violation itself will cause injury.” Cumberland Coal Res., LP,
33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc. & PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Moreover, the
Secretary is not required to prove that the hazard contributed to will actually
result in an injury causing event. Youghioghemy & Ohio Coal Co., 9
FMSHRC 673, 678 (April 1987).  

Rather, “[t]he third element of the Mathies
test ‘requires that the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is an injury.’”
Ziegler Coal Co., 15 FMSHRC 949, 953 (June 1993), quoting U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984)(emphasis in original); but
see Peabody Midwest Mining, LLC, v. FMSHRC, 762 F.3d 611, 616 (7th
Cir. 2014)(shortcutting S&S analysis and holding that question is not
whether it is likely that the hazard would have occurred, but only if the
hazard occurred, regardless of likelihood, it was reasonably likely that a
reasonably serious injury would result). When examining the third element of
the Mathies test for those violations that involve hazards of fire, ignition,
or explosion, the Commission has held that the Secretary must prove that such a
hazard is reasonably likely to occur, in addition to proving that the hazard is
reasonably likely to result in an injury. Ziegler Coal, 15 FMSHRC at 953,
citing Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988); see also
Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 (Feb. 1991). That is, when
evaluating the reasonable likelihood of a fire, ignition, or explosion, the
Commission has examined whether the requisite “confluence of factors” is present
based on the particular facts surrounding the violation. Enlow Fork Mining
Co., 5 FMSHRC 5, 9 (Jan. 1997), citing Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988).

2.      S&S Analysis

I conclude that the violation of §
77.404(a) was significant and substantial. The violation contributed to a
discrete fire hazard that was reasonably likely to result in injury, and the
injury was reasonably likely to be of a serious nature.

For the reasons explained above, I have
found the underlying violation of mandatory safety standard 77.404(a).  

With regard to the second Mathies factor,
the violation created a discrete fire hazard and discrete explosion hazard,
both measures of danger to safety. My finding of a violation a fortiori
requires a finding of a discrete measure of danger to safety as the standard
violated requires a failure to maintain mobile equipment (the Mack ANFO truck)
in safe operating condition, free from hazards that require corrective action.  Ergo,
if the truck is not maintained in safe operating condition there is necessarily
a discrete measure of danger to safety. 

Furthermore, under the second Mathies
prong, the Secretary need only identify a safety hazard associated with the
putative S&S violation. Highland Mining Co., 34 FMSHRC 3434, n. 5
(Dec. 2012). The record evidence establishes that the diesel fuel leaking onto
the exhaust manifold in close proximity to the turbo-charged engine created a
discrete fire hazard, and because the violation contributed to a fire hazard
and the truck was loaded with ANFO, the violation also contributed to a
separate explosion hazard if the ANFO exploded because of the fire. Both fire, and
explosion because of fire, were hazards that were measures of danger to safety for
the driver of the truck.  

The record establishes that that diesel
fuel is capable of catching fire at a certain temperature point and that the
manifold and turbo charger in question can reach high temperatures, during
continued normal mining operations. Whether they could reach temperatures high
enough to ignite the diesel fuel is discussed below under the third prong of Mathies.
The record testimony of the experts, however, is in apparent conflict as to
whether the ANFO is capable of exploding in the event of a fire on the truck.  

Angel testified that “… it’s not
generally accepted in the industry that ANFO can explode if it’s subject to a
fire. Most likely, it would burn, but under conditions where it’s contained,
the ammonium nitrate can heat up and become more sensitive to explosion and
result in an explosion rather than just burn.” Tr. I, 129. To support his
position, Angel’s expert report relied on a 2006 draft report from his Center
evaluating an emulsion truck explosion at ASARCO’s Ray Open Pit Cooper Mine
near Kearny, Arizona. P. Ex. 3, n. 18. Over Respondent’s objection, I received
the report into evidence, with concerns about weight to be given to the draft
report, as opposed to its admissibility. Tr. I, 131-38. Based on a hearsay
discussion with the report’s drafter, an expert in explosives, which Angel was not,
Angel was told that the cited scenario at Virginia Drilling and the situation
involving the Ray Open Pit “were analogous, that there were conditions where
the ammonium nitrate on both trucks could become sensitized by fire and result
in an explosion.” Tr. I, 139. 

On the other hand, Santis, Respondent’s
expert, testified that ANFO had a very low probability of detonating by fire
based on testing done at Department of Transportation (DOT) laboratories
concerning transportation quantities of ANFO. Tr. II, 3443-44. Based on the
definition of “blasting agent” provided in one of his reports (R. Ex. 7, p. 6),
Santis testified that ANFO was a less sensitive form of explosive than other
forms of explosives that are transported, which means that “it takes a stronger
stimulus to cause a reaction.” Tr. II, p. 331.  Santis testified that “[a]
detonator should not initiate a blasting agent.”  Tr. II, p. 332.  

Santis then explained how ANFO is
detonated by Respondent.  Respondent places a detonator inside a booster,
either a stick powder or cast booster, made of cast pentolite, a mixture of
PETN and PNT. The detonator sets off the booster, and then the booster sets off
the ANFO.  Tr. II, 332.  In his report (R. Ex. 7, p. 9), Santis states, “ANFO
is on the low end of the explosive sensitivity scale. It is one of the least
likely of all explosives to undergo a deflagration to detonation transition
(DDT).”  Santis explained that DDT “is the mechanism that causes an explosive
to detonate from fire. Essentially, what happens is that the amount of heat
input into the explosive exceeds the amount of heat that can be given off by
the explosive. You develop a heat feedback loop that keeps putting more heat
into the material. Eventually, that can be enough energy to start a
detonation.” Tr. II, 352.

Santis distinguished incidents involving
other trucks or trailers carrying a “mixed load of explosives” that caught
fire, burned, and detonated. Tr. II, 345-347. With regard to the Ray Open Pit
incident relied on by Angel, Santis testified that it involved a truck with a
batch mixture of ammonium nitrate, slurry, fuel, a sensitizer, and perhaps
other chemicals, and the ammonium nitrate prell did not detonate when the batch
mixer detonated; rather, it “just got thrown all over the place.”  Tr. II, 349-51.
Santis testified that the ANFO truck used by Respondent involved just two
pre-mixed components, ammonium nitrate and fuel oil, which in his opinion, as
noted, was unlikely to detonate.  Tr. II, 350.   

Despite this apparent conflict is
testimony, the second prong of the Mathies test does not require a
“reasonable likelihood” analysis. Musser Eng’g, Inc., 32 FMSHRC 1257,
1280 (Oct. 2010).  Accordingly, I need not resolve the conflict of whether a
fire or an explosion was reasonably likely to occur when discussing the second
prong of Mathies. Santis’ testimony did not rule out the possibility
that an explosion, albeit it unlikely, could occur if the ANFO detonated as a
result of a truck fire. Consequently, I find that the violation contributed to
two discrete hazards. First, a fire hazard if the engine manifold or
turbocharger reached a temperature sufficient to ignite the diesel fuel. Second,
an explosion hazard if the fire detonated the ANFO.  Accordingly, I find that
the second Mathies factor is satisfied by either hazard.  

Regarding the third Mathies factor,
the Secretary need not prove that the violation itself is reasonably likely to
cause injury.  The test under the third element is whether there is a
reasonable likelihood that the hazard(s) contributed to by the violation will
result in injury.  Musser Eng’g, 32 FMSHRC at 1281.  In this case there
was one violation and two hazards, fire if the leaking diesel fuel ignited, and
explosion if any fire detonated the ANFO.  Through the expert testimony of
Angel, the Secretary demonstrated a reasonable likelihood that the fire hazard
contributed to by the leaking diesel fuel violation would result in an injury, during
continued mining operations.

All the elements of the fire triangle sufficient
to establish the confluence of factors necessary to start a fire were present. Diesel
fuel, which ignites under sufficient heat, was leaking onto the engine manifold
near the turbocharger, both sources of ignition energy. If left uncorrected,
vehicle vibration, mechanical stress, and corrosion would degrade the fuel line
and augment the leak. Tr. I, 127. There was oxygen present in the atmosphere
near the diesel fuel leak. The essential issue in dispute with regard to the
fire hazard is whether the exhaust manifold or turbocharger were heat sources
that could reach a temperature hot enough that it was reasonably likely that
the leaking diesel fuel would ignite and cause a fire that would result in an
injury, under continued normal mining operations.  

Angel credibly testified that the
auto-ignition temperature for diesel fuel can range from 450 to 500 degrees
Fahrenheit. Tr. I, 109. The Petroleum Company No. 2 diesel fuel at issue has a
published auto-ignition temperature of 500 degrees Fahrenheit, as listed on the
manufacturer’s MSDS. P. Ex. 3, n. 14; Tr. I, 109. Santis testified that before reaching
a temperature high enough to cause ignition, there would be visible smoke and
vapors, and that five percent of the diesel fuel would have started to vaporize
at 360 degrees Fahrenheit, the boiling point listed on the MSDS.  Tr. II,
338-39.  Although Angel also testified that environmental or “real-world” factors
may result in a much higher auto-ignition temperature, he explained that
testing of the auto-ignition temperature of diesel fuel droplets on stainless
steel at MSHA’s diesel lab established that the fuel would ignite at 750 to
1050 degrees Fahrenheit. Tr. I, 110; P. Ex. 3, n. 17.   

Angel credibly testified that the load
the engine is under will affect how hot the engine components will become and
that the engine load would have to be about 75 percent of the full torque value
of the engine, for the engine components to reach at least 700 degrees
Fahrenheit and get hot enough to ignite the diesel fuel. Tr. I, 121-22. Angel
further credibly testified that he would expect the engine to be able to
operate up to its full load potential during normal mining operations.  Tr. I,

122. Angel explained that mining conditions change, and the steepness of the
     road, the load on the truck, and other operating conditions, factor into his
     expectation that the Mack ANFO truck would be used to reach its maximum engine
     potential. Tr. I, 122.  By contrast, Santis relied on Respondent’s test data,
     the probative value of which I have discounted, and unlike Angel, he did not
     consider the violation in the context of continued normal mining operations. Tr.
     II, 373, 382, 395.

The record establishes a reasonable
likelihood that both the engine manifold and turbocharger could reach a
temperature of 750 to 1050 degrees Fahrenheit near the area where the diesel
fuel was leaking, which would be sufficient to ignite the diesel fuel during
continued normal mining operations.  Angel credibly testified that the flat
area of the manifold near the fuel leak at the number two cylinder would reach
about 900 degrees Fahrenheit. Tr. I, 121. Angel also credibly testified that
areas of the manifold at the end of the cylinders, such as the elbows, would
reach about 1000 degrees Fahrenheit. Tr. I, 120. In addition, Angel credibly
testified that the gas temperatures exiting the turbo-charged engine could
reach 1200 degrees Fahrenheit, a temperature higher than the manifold itself.  Tr.
I, 117-18.

Although the radiator fan would dissipate
some of the vapors around the manifold and cool it down, once the engine was
turned off, the fan would no longer provide ventilation to cool the engine and
dissipate the vapors. Tr. I, 118-20, 178-81.  Prior to such cooling, the exhaust
manifold and turbocharger would still be hot enough to ignite the leaking diesel
fuel after a heavy load above 75 percent of engine potential. Tr. 178-81. Angel
credibly testified that the engine can reach that potential, depending on the
steepness of the road, the load on the truck, and other varying conditions. Tr.
I, 122.

Finally, Angel persuasively testified
that if a fire were to start in the engine compartment, leaking diesel fuel
would burn until it reached other combustible material and ultimately consume
the entire vehicle, which was reasonably likely to result in entrapment of the
operator inside the cab and death or other injury (burns, smoke inhalation) to
the truck operator. Tr. I, 128. Given this record evidence and confluence of
factors, I find that the Secretary established both that a fire was reasonably
likely to occur under normal mining operations if the violation was left
unabated, and that the fire hazard contributed to by the violation was
reasonably likely to result in an injury.[11]
Accordingly, I find that the third prong of the Mathies test has been
satisfied with respect to the fire hazard.[12]

With regard to
the fourth Mathies factor, I find a reasonable likelihood that the
injury resulting from the fire would be of a reasonably serious nature and
likely fatal. The type of injury that would likely result from a fire on the
Mack ANFO truck would be operator burns, smoke inhalation, and/or death. Cf.,
Buck Creek, supra, 16 FMSHRC at 542-43 (ALJ) (finding that “smoke and
gas inhalation” would cause a reasonably serious injury “requiring medical
attention” for S&S purposes), aff’d 52 F.3d at 135-36 (7th Cir.
1995). The Commission has recognized that auto ignitions and explosions are
major causes of death and injury to miners. Black Diamond Coal Mining Co.,
7 FMSHRC 1117, 1120 (Aug. 1985). Accordingly, because it was at least
reasonably likely that the occupant of the truck would sustain a reasonably
serious or fatal injury as a result of a fire contributed to by the leaking
fuel violation, I find that the fourth element of the Mathies test has
been established.  

Respondent contends that because the
truck has fire extinguishers and there is an emergency plan in place, there is
no risk of fatality in the event of a fire. R. Br. 23; see also Tr. II, 305. I
reject these arguments. The presence of fire-fighting equipment and other
precautions does not lessen the risk or severity of injury or death to a miner
due to a truck fire caused by a leaking fuel line. Buck Creek, 52 F.3d
at 136 (in the event of a fire, the mere presence of . . . firefighting
equipment does not mean that fires do not pose a serious safety risk to
miners); Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (for
purposes of analyzing whether a violation is S&S, a hazard continues to
exist regardless of whether caution is exercised). Furthermore, even with an
emergency plan in place, there is no guarantee that a miner will respond appropriately
under the stress of emergency conditions.  Likewise, there is no guarantee that
an endangered truck operator will be able to access the fire-fighting equipment
and use it effectively. As I have previously noted, the Commission interprets safety
standards to take into consideration “ordinary human carelessness.” Beckley
Crane & Constr., Inc., 33 FMSHRC 372, 382 (Feb. 2011) (ALJ), quoting Thompson
Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984).

A.    Respondent’s
Negligence was Properly Designated as Moderate

The Respondent contends that the
citation’s negligence designation should be classified as low, rather than
moderate.  The Act defines negligence as “conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act
to protect miners against the risk of harm.” 30 C.F.R. § 100.3 (d). An operator
is required to “take steps necessary to correct or prevent hazardous conditions
or practices.” Id. In order for a citation to be designated as moderate
negligence it must be determined that “the operator knew, or should have known
of the violative condition or practice, but there are mitigating
circumstances.” 30 C.F.R. §100.3 Table X. On the other hand, for a citation to
be properly designated as low negligence there must be considerable mitigating
circumstances present. Id.  A mitigating circumstance may include
actions taken to prevent or correct hazardous conditions. 30 C.F. R. §100.3(d).

The Respondent should have known that
there was a fuel leak on the vehicle’s engine manifold. Respondent should have
insured that a pre-operational check was performed on the truck in question
prior to operation. Mack’s maintenance manual for this particular truck requires
that as part of the driver’s daily schedule, the driver check for “signs of
leaking, fuel, oil or coolant” as well as inspect under the hood for “oil, fuel
and air leaks.” The manual further states that the driver should “make sure any
problem is corrected before using the vehicle.” P. Ex. 3, Ref. 6, p. 2. Respondent’s
safety director, Anthony Kidd, did not know whether a pre-operational check of
the vehicle had been performed. Tr.II, 276. At the very least, such ignorance
paints a picture of lax enforcement of a pre-operational inspection policy and
imprecise recordkeeping on the part of the Respondent.

To support its contention that the
negligence should be lowered from moderate negligence to low negligence, Respondent
argues that the location of the leak is a mitigating factor. While the leak is
under the hood and not visible without lifting the hood of the truck, I have
found that the Mack maintenance manual requires checking under the truck’s hood
for fuel leaks prior to daily use. Although inspector Fletcher conceded that
this type of leak could occur after a driver does a pre-shift examination (Tr.
I, 76), Respondent failed to establish that one was done.  Moreover, the
Commission has held that the execution of a pre-operational inspection does not
relieve the operator of its duty to maintain equipment in safe operating
equipment, and to hold otherwise would run counter to the strict liability
nature and safety objectives of the Mine Act.  Wake Stone Corp., 36
FMSHRC 825, 829 (April 2014).

Furthermore, the Respondent’s argument
that Austin Sales maintains the truck and is responsible for pre-operational
inspections, does not relieve Respondent from its duty to maintain vehicles in
safe working condition as required by the mandatory safety standard. Finally,
Respondent’s argument that the blaster helper operating the truck at the time
of the citation was not an agent of Respondent is not a mitigating
circumstance. Respondent should have a vigilantly monitored system in place to
ensure that pre-operational checks have been completed and that mobile
equipment is maintained in safe operating condition.  

Accordingly, I find no mitigating
circumstances that would justify reducing the negligence designation from moderate
to low. Respondent should have known of the violative condition and its negligence
was properly designated as moderate.

B.     Civil Penalty

The Act requires that when evaluating a
civil monetary penalty the Commission shall consider six statutory penalty
criteria: 1) the operator’s history of previous violations; 2) the appropriateness
of the penalty to the size of the business; 3) the operator’s negligence; 4)
the operator’s ability to stay in business; 5) the gravity of the violation;
and 6) any good faith compliance after notice of the violation. Douglas R.
Rushford Trucking, 22 FMSHRC 598, 600 (May 2000).  The Commission is not required
to give equal weight to each of the criteria, but must provide an explanation for
a substantial divergence from the proposed penalty under the criteria. Spartan
Mining Co., 30 FMSHRC 699. 723 (Aug. 2008).  

As I discussed in my final Big Ridge decision,
in an effort to avoid the appearance of arbitrariness, I look to the
Secretary’s assessment formula as a reference point. Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ).  This formula is not binding, but operates
as a lodestar, since factors involved in a violation, such as the level of negligence,
may fall on a continuum rather than fit neatly into one of five gradations.  Further,
unique aggravating or mitigating circumstances may call for higher or lower
penalties, and will be taken into account. 

When assessing
the gravity of this violation under section 110(i) criteria in light of the
penalty principles outlined above, I credit and find persuasive inspector
Fletcher’s testimony at hearing that the citation was more appropriately
written as reasonably likely to result in an injury, rather than highly likely
to result in an injury. Tr. I, 58; see also Tr. I, 68.  In essence, Fletcher
candidly reassessed his analysis after additional experience on the job.  The
gravity was very serious, however, given the reasonable likelihood of a fire
and the potential for a fire to result in explosion. To the Respondent’s
credit, the violation was quickly abated in good faith when Respondent ordered
parts for the truck and had a mechanic from Austin Sales promptly repair the
vehicle. R. Ex. 1. The parties stipulated to this prior to hearing. Jt. Ex. 1. Accordingly,
applying the remaining section 110(i) criteria to my findings set forth herein,
I assess a civil penalty of $37,416 against Respondent for the instant
violation of section 77.404(a).

V.  Order

WHEREFORE, the motion for
approval of settlements is GRANTED.

The contest of
Citation No. 8262897 is DISMISSED         

It is further ORDERED that
Citation No. 8262897
be modified to reduce the likelihood of injury or illness from “highly likely”
to “reasonably likely.”

To the extent Respondent has
not already done so, within 40 days of the date of this decision, Respondent,
Virginia Drilling, Inc., is ORDERED TO PAY a total civil penalty of $44,164,
i.e., $37,416 for the litigated citation and $6,748 for the settled citations.15

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Thomas J. Motzny, Esq., Office of the Solicitor, Department of
Labor, 211 7th Avenue North, Suite 420, Nashville, Tennessee 37219

Todd C. Myers, Esq., Rajkovich, Williams, Kilpatrick & True,
PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, Kentucky 40513

[1]
Prior to
hearing, the parties agreed to settle Citation No. 8262896 in Docket No. KENT
2012-182 and Order No. 8262457 in Docket No. KENT 2012-183. Citation No.
8262896 alleged a violation of 30 C.F.R. § 77.404(a). Section 104(g)(1) Order
No. 8262457 alleged a violation of 30 C.F.R. § 48.31. Tr. I, 4, 11; Jt. Ex. 2. According
to the terms of the proposed settlement, Citation No. 8262896 and Order No.
8262457 remain unchanged, but the Secretary of Labor justifies respective
reductions in proposed penalties from $3,405 to $2,900 and from $4,810 to
$3,848 by stating that there are legitimate factual and legal disputes
regarding gravity and negligence. Jt. Ex. 2. I have considered the
representations and documen­tation submitted with the partial settlement under
the criteria set forth in section 110(i) of the Act, and I approve the
proffered settle­ment as consistent with the purposes of the Act.

[2]
Jt. Exs.
1-2, P. Exs. 1-4, and R. Exs. 1-8 were received into evidence. Tr. I, 100; Tr.
II, 8, 67, 182, 411.  

[3]
In
resolving conflicts in testimony, I have taken into consideration the demeanor
of the witnesses, their interests in this matter, the inherent probability of
their testimony in light of other events, corroboration or lack of
corroboration for testimony given, experience and credentials, and consistency,
or lack thereof, within the testimony of witnesses and between the testimony of
witnesses.

[4]
Ronnie
Fletcher is a certified surface mine inspector with MSHA. Inspector Fletcher
received his authorized representative card in the fall of 2010, about one year
before he issued the instant citation. Tr. I, 31, 67. Fletcher is a high-school
graduate, with some college credit and 22 years of experience in the mining
industry in production and maintenance capacities. Tr. I, 32-33. Fletcher has a
welding certificate with the state of West Virginia and surface mine foreman
papers from the states of Kentucky and West Virginia. Tr. I, 32, 34-35.

[5]
The truck
is Mack brand R-model, with a 6-cylinder turbo-charged, 300-horsepower diesel
engine. The shot truck is usually kept at the powder bin or magazine.  Tr. II,
85.  

[6] On cross
examination, the Secretary’s expert witness, James Louis Angel, agreed that
such a temperature reading sounded about right, based on his experience. Tr.
II, 10-11.

[7]
On cross,
Angel admitted that three of the four accident reports referenced in his expert
report primarily involved sprayed hydraulic fuel, as opposed to a dripping fuel
leak, and the other one involved a splash of diesel fuel, i.e., seven gallons
of diesel fuel that was splashed on the turbocharger and manifold area while
refueling a drill that was idling at 530 degrees Fahrenheit, after a five
minute cool down from running at high load.  Further, with regard to the splash
of diesel fuel on the drill, MSHA considered whether the drill operator had
been smoking a cigarette. Tr. II, 19-22, 60-61.

[8]
Angel
testified that the distance the vapors would travel was dependent on the amount
of air flow around the engine, and as the gas expanded, it would take up volume
along the manifold and turbo charger.  Tr. 119.  Although not specifically
familiar with radiator fans on Mack engines, Angel testified that most radiator
fans blow toward or over the engine, and such a fan would be a source of air
that could dissipate some of the vapors and cool the engine’s surface
temperature.  Tr. I, 119; Tr. II, 10; Tr. II, 51-52.  If the engine is turned
off, however, there is no fan ventilation to cool the engine or dissipate
remaining vapors. Tr. I, 178.

[9] On cross, Angel
recalled that this 1200 temperature reading was taken after underground testing
on a Brookville locomotive.  Tr. II, 14.  

[10] Santis
testified that the leak was only a couple of ounces per hour. Tr. II, 342.

[11] The Secretary
litigated this case as a fire hazard case and not an explosion hazard case, or
both. Accordingly, I find it unnecessary to resolve the conflict in expert
testimony as to whether it was reasonably likely that the ANFO would explode in
the event of a fire under the third prong of Mathies.  

[12] Respondent and
its expert argue that it is unlikely that a fire will occur from the fuel leak
on the ANFO truck because there have been only a few fires reported for
bulk-explosive transport trucks over the past 50 years and none at Virginia
Drilling. See Tr. II, 337; Resp. Ex. 7.  These arguments are not persuasive. The
Secretary need not produce quantitative evidence of the frequency of a hazard
to show that it was reasonably likely under the circumstances. Knox Creek
Coal Corp., 36 FMSHRC 1128, 1132-33 (May 2014) (requiring the Secretary to
essentially prove a statistical frequency of a hazard occurring would impose an
unwarranted standard that extends beyond reasonable likelihood). Further, although
Kidd testified that Virginia Drilling has never had an ignition from this type
of condition (Tr. II, 263), the fact that a fuel leak ignition or fire has not
occurred at Virginia Drilling in the past, does not mean that it cannot or will
not happen when the requisite confluence of factors is present making such
occurrence reasonably likely.  Ambrosia Coal & Construction Company,
18 FMSHRC 1552, 1560 (Sept. 1996). See also Elk Run Coal Company,
27 FMSHRC 899 (Dec. 2005); Buffalo Crushed Stone, Inc., 19 FMSHRC 231,
238 (Feb. 1997) (the absence of previous instances of over travel does not
establish that an accident would not be reasonably likely to occur, given the
nature of the hazards presented); Blue Bayou Sand and Gravel, Inc., 18
FMSHRC 853, 857 (June 1996)(assertions that the operator had no history of
accidents, and that the truck had been operated in the cited condition for many
months without incident, are not dispositive of a finding that the third Mathies
element has not been established).

15 Payment should
be sent to: Mine Safety & Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.