**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

###### OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUEN. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

 

 
| SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH 

ADMINISTRATION  (MSHA)

                             Petitioner

 

                        v.

 
 VULCAN CONSTRUCTION MATERIALS, LLC,
                        Respondent                                                                         |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. SE 2019-0237

A.C.  No. 09-00445-496283

 

 

 

 

 

Mine:  Blairsville Quarry 

  |
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**DECISION AND ORDER**

** **

 

Appearances: Roy Timothy Cornelius, non-attorney representative, for the Department ofLabor 

                         andWinfield Murray, Esq., Department of Labor, observer to the hearing.

 

                         ChristopherSorrows, Safety & Health Manager at Vulcan for Georgia. 

 

Before:   Judge William B. Moran

 

            Inthis proceeding upon a petition for assessment of a civil penalty under section105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d),the Secretary alleges that the Respondent, Vulcan Construction Materials, LLC, violated30 C.F.R. §56.14101(a)(3),  a safety standard titled “Brakes.” The particularsubsection cited provides that: “All braking systems installed on the equipmentshall be maintained *in functional condition*.” (emphasis added). Avirtual hearing was held on February 4, 2021.[1] The Secretary filed a post-hearing brief and a reply brief. The Respondentfiled a post-hearing brief. All contentions were fully considered by the Courtand are addressed in this Decision.

 

It is the Secretary’s contention that theRespondent violated the cited standard in that the braking system on the Respondent’sFord L 8000 water truck was not being maintained in a functional condition onthe basis that, when tested by the MSHA inspector, evidence will show that theairbrake valve had an audible air leak while the pedal was being engaged. Tr.18-19.  For the reasons which follow, the Court finds that the Secretary failedto meet his burden of proof in that the violation was not established by apreponderance of the evidence that the cited truck was not maintained infunctional condition. Accordingly, the violation unproven, this matter is **DISMISSED**.

** **

**Findingsof Fact**

** **

****Testimony beganwith MSHA Inspector Tommy Wright, who issued the subject citation. Wright hasbeen an MSHA inspector for more than ten years and, prior to that he hadapproximately 25 years of employment in the mining industry. Tr. 24. Theinspection took place at the Respondent’s Blairsville quarry on June 26, 2021. TheRespondent mines granite at that location. Tr. 36.

 

On that day, Wright issued Citation Number 9428093. The“Condition or Practice” section of the citation stated: 

The braking system on theavailable for use Ford L8000 water truck, Co 34227, located on ready line isnot being maintained in a functional condition. When tested, there is a brakeair valve at center of the front tandem that has an audible present with thebrake paddle [sic] engaged. Employees working in around this equipment wereexposed to the possibility of injury, if the brakes were to fail. The truckpassed a brake test making an accident unlikely.

Tr. 39; and textof Citation No. 9428093. 

By using the term “audible,” the inspector stated thatmeant there was an air leak. Tr. 39. The inspector conceded that the truckpassed a brake test.[2]Tr. 40. However, he issued the citation because 

the valve that was leaking waspart of the braking system. The whole time ... the driver had his foot on thebrake pedal with it engaged. There was a constant air leak, an audible air leakthat I could hear and I could feel when I crawled up under the truck.

*Id.*It was theinspector’s view that despite passing the brake test, based on hisdetermination, he could not guarantee that the truck would pass the test again.*Id.*

The inspector did list the injury as unlikely to occurbecause “with the truck’s engine running, the compressor was able to maintainthe low power loss at the time of the inspection.” Tr. 41. On the same basis,he concluded that it was not a “significant and substantial” violation. *Id.*Listing lost work days or restricted duty, the inspector’s rationale was that“[i]n the event that brakes were to fail ..., the par[k] brake would set up, itcould cause loss of control maybe the vehicle, injuries to the driver is inbruises; broken bones.” Tr. 41. One person, the truck driver, would beaffected, as there was no one else around at that time. *Id.*Negligencewas marked as “low,” given that the Respondent stated the truck was a backupand the driver had also done a pre-op on it. The driver stated that he didn’thear any air leaks. Tr. 42. 

            Theinspector believed that the truck was in violation of the standard he citedbecause “[t]he whole time the operator held his foot down on the brake, keepingit engaged. There was a constant audible air leak present at the valve. Andwhen he release[d] them [sic] foot off the brake, the audible air leak stopped.”Tr. 42-43.

            Turningto Government Ex. P 8, the inspector identified it as MSHA’s program policymanual. He referenced the applicable part of that manual for this matterstating:

standard 56\57.14101(a)(3)should be cited if a component or a portion of any braking system on theequipment is not maintained in a functional condition. Even though the brakingsystem is in compliance with one or two above. It is important to note that *ifthe component or portion of either system renders the equipment incapable ofstopping or holding itself with its typical load on the maximum grade ittravels*the appropriate standard is 56\5714101(a)(1) or (2) should becited. 

Tr. 43 (emphasisadded). The inspector affirmed that the valve he cited is a component of thecited truck’s braking system and is covered by the cited standard. Tr. 44. 

            Directedto Gov. Ex. P 2, the inspector identified it as the termination of the citationhe issued. The citation was terminated the following day, on June 27, 2019. Histermination noted that “[t]he cited air valve has now been replaced with a newone. When tested there is no longer an audible air leak present.” Tr. 45. Heconfirmed that the operator installed a new valve and that he could not hear anyair leak thereafter. *Id.*The inspector was also asked about Gov. Ex. P 4,the notes he wrote that regarding this citation.[3]

            Theinspector reaffirmed that he had the driver check the brakes on a grade beforehe issued the citation in issue and that the brakes held on that grade. Tr. 51.He added that the driver shut the engine off and it was at that time that he inspectedfor air leaks on the brakes. *Id.*Continuing, he confirmed that he walkedaround the truck and checked canisters and the lines and valves and other thingsfor leaks. He then informed mine personnel that he found an air leak on thetruck, so advising the mechanic, Vulcan employee Jim Young, of this. *Id.*Theinspector affirmed that he could hear air coming from the valve. *Id.*Elaborating,the inspector stated that he “crawled up under the truck” which had beensecured so that it would not move, and he “could hear where the air was coming from.And [he] put [his] hand at the bottom of the valve and [he] could also feel it.”*Id.*The inspector affirmed that was a common way to detect a leak on abrake and that the leak was constant “[t]he whole time the driver had his footon the brake with the pedal engaged; there was a constant air leak.” Tr. 52. Hethen added that “leaks only get worse. They don't fix themselves.” *Id.*Hefurther affirmed that, in his view, the valve he cited was a component of thebrake system on the cited truck, stating, “Yes, sir. The only time there was anaudible air leak there, it was a continuous air leak was when the operator, thetruck driver had his foot on the brake and kept the brakes engaged.” *Id.*

**Uponcross-examination, Mr. Chris Sorrows, a Safety & Health Manager for Vulcan,who is also not an attorney, asked about the inspector’s air brake training andknowledge and experience. In terms of the inspector’s training for air brakes, Wrightstated it involved “[l]eaks, stroke, canisters, the type, the know what and howthe stroke would be. Listen for air leaks, valves, how things should set up.” Tr.55. Regarding the procedure he would employ from training to verify if therewere any leaks on the system, the inspector responded, “[t]he driver would puthis foot [on the] brake pedal and I'd walk around and check for the air leaks. ...[the equipment] would be off [during the test].” Tr. 56. 

Inspector Wright was asked if he did a thresholdpressure test during the inspection. With the inspector not understanding thequestion, Mr. Sorrows then asked if he had the air calculation rate. Tr. 56. TheCourt then interceded, suggesting that the Respondent determine  if theinspector was familiar with those terms. Mr. Sorrows then offered differentwords, employing slang terms for his question, describing it as a “stone or apump test.” Tr. 57.    The inspector responded that those tests were not doneand in response to the Court, the inspector added that he did not know what apressure threshold test was.[4]*Id.*

**When the inspectorwas then asked if he “verif[ied] an air calculation rate during [his]inspection,” the inspector answered that he is “not required to, no.” [5]Tr. 58. The inspector was then asked how he verified that there was an airleak. He responded that “[t]he operator pushed the brake [ ] [a]nd the valvethat I cited had an audible air leak present the whole time he had the brakepedal engaged. He held at constant pressure on it.” Tr. 59. Asked if he, InspectorWright, was in the truck cab at the time of the inspection, the inspectoranswered, “[n]o, sir. I crawled up under the truck and heard the air leak and putmy hand under the valve and felt it.” *Id.*For the purpose of a clearerunderstanding the Court asked if the truck was running, that is, whether themotor was running, or was the vehicle off when the inspector crawled under it. Theinspector confirmed that the truck was off at that time. Tr. 60. When theinspector heard the audible leak, he did not take the vehicle out of service,but the operator did. *Id.*He added, in an apparent justification of hisnot removing the truck from service, that “[a]t the time of the inspection, theair compressor with the engine running was able to keep up with the air leak. Itwas like a hiss; a rapid loss of air.” Tr. 61. 

            Askedto identify the air valve he looked at, the inspector responded, “[i]t was atthe center of the truck at the front tandem.” *Id.*There were two axleson this truck. *Id.*Asked if he agreed that the component he examined was“a service relay,” he answered it was not. Tr. 62. Asked if he was familiarwith the components, in the way they operate, the inspector did not answer thequestion posed, instead only responding, “[t]o put it briefly (inaudible) puton the brake. You have (inaudible) any relief, as in would you let on put yourfoot on the brake and lay it off. But while you have continuous brake pressurethe valve is not supposed to leak air.” *Id*. Then asked if he agreed thatany fluctuation in the brake pedal would exhaust air, the inspector answeredthat would be true “if [the driver] let it off, not while he was holding thepressure.” *Id.*

            Next,the inspector was asked if he used “any supporting agencies during [his] airbrake inspections for guides,” to which he answered, “no.” Tr. 64. When thenasked if “[d]uring mine training school was there any references back to aNorth American Standard CVSA, or any commercial motor vehicle inspections,” theinspector, instead of answering the question, responded that inspectors “arenot required to have, that was just a reference.” Tr. 64-65.     In a follow-upto that question, the inspector was then asked if there was “reference materialfor inspections.” The inspector responded that he “cannot enforce those.” Tr.65. The Court then admonished the inspector that he was being “mildlycombative” and that his role during cross-examination was to answer thequestion. In this instance, the Court advised the witness that the question hewas being asked was if “there was [such] reference material that [he] came intocontact with during [his] training” and his response was then “yes.” *Id.*

            Wrightwas then asked upon terminating his citation how he verified that terminationwas appropriate. 

They had the old air valvelaying there and they put air valve on, and he fully engaged the brake pedalwithout the engine running, pressed the service brake pedal and held it downand there was no longer an audible air leak present at that valve, where the oldvalve was. The new one did not leak air. 

Tr. 66. Asked ifhe crawled “back up under the truck and st[u]ck [his] hand to the bottom of thevalve like [he] did the initial time,” Wright answered, “I did not stick my handthere. No.” *Id.*He then reaffirmed that he stuck his hand to the bottomof the valve at the time he first issued the alleged violation. Tr. 67.

            Wrightwas then directed to Gov. Ex. P 10 and, asked to identify what is on that page,he responded, “a quick release valve.” *Id*. He was then asked, relatingto the same diagram at that page, if he could explain the port and what'spictured on that page. The inspector answered that: 

[i]t shows us supply port andupper body for the diaphragm, delivery port, a lower body port, a lock washer,sealing rings, exhaust port cap screw, another delivery port and mounting hose [andhe then answered that the exhaust port on the valve is on] [t]he very bottom.

*Id*. In response to afollow-up question, the inspector answered that the location of his hand at thetime he felt air exhausting was “[a]t the bottom.” *Id*.

 

            TheSecretary then called as his next witness, Fred Terry Marshall, to testify aboutthe function of the subject air brake systems. Tr. 68. Mr. Marshall is employedby the Mine Safety and Health Administration, as a mechanical engineer withintechnical support. Tr. 70. He has 23 years of employment with MSHA’s TechnicalSupport, in Triadelphia, West Virginia. *Id.*He established that he hasexperience with airbrake systems on haulage trucks and the Court so finds.[6]Tr. 71. 

            Mr.Marshall was first asked by the CLR to describe how brake systems work and forthat purpose, the CLR made reference to Gov. Ex. P 9, *which the CLRdescribed* as “some excerpts out of a Bendix quick reference catalog. Bendixis a manufacturer of air valves ..., as far as braking systems.”[7]Without laying any predicate, the CLR asked if the type of valve in Exhibit P 9is “fairly common on the air brake systems on these haulage vehicles.” Tr. 73. WitnessMarshall responded “[t]he valve shown on page 30 is a -- the valve at the bottomof the page -- the second page of the Government's Exhibit is the valve *thatwas reported to me to have been replaced or installed on the water truck*. Orto terminate the citation that inspector Wright had issued. This is what theycall a quick release valve. It's fairly simplistic as far as its purpose andfunctionality and composition.” *Id.*(emphasis added). 

            TheCLR then turned to Gov. Ex. P 10, asking Wright to identify it. The witness statedit was the service data sheet for the valve which appears at the bottom of thesecond page of Gov. Ex. P 9. That sheet explains how the valve works. Tr.73-74. He then explained how the valve works, stating that the last page ofGovernment Exhibit P 9 has maintenance kits for different air valves thatBendix offers and the picture to the left of it shows the two components thatare in that maintenance kit. Tr. 74-75. Specifically, the witness was referringto Bendix QRN, valve maintenance kit, PC number 104463. Tr. 75. 

            Althoughthe witness gave some detail about how the valve operates, in the Court’sassessment, such information really has no value that the Court perceives interms of resolving the issue before it. The witness then offered his view ofthe problem with the valve, stating, “[w]ell, in the balance mode, thediaphragm was not sealing up against the exhaust port adequately. Whether thatwas from a split in a diaphragm, a hole in the diaphragm or some kind ofobstruction in there, I don't know.” Tr. 78. He agreed that such a problemwould cause the air to exhaust from that exhaust port in the bottom of thatvalve, when it is in the balance mode.   In that mode, he added, the valveshould not be exhausting air through the exhaust port. Tr. 79. 

            Atthat point, the Court interceded, first explaining that one of itsresponsibilities is to develop a complete record. The Court asked the witnessif it was true that he had never personally seen the cited truck. The witnessaffirmed that was true – he has never seen the truck in issue. *Id.*Henext agreed that he was not present at the time when the inspector issued thecitation and therefore he also never heard any air hissing, again because hewas never present at the mine. Tr. 80. He then confirmed that he was notpresent when the replacement valve was installed on the truck either. *Id.*Thewitness then agreed that his testimony related, generally, to how these valves operate.That, the Court would note, namely, how the valves operate, is not and was notan issue in dispute in this case. *Witness Marshall further agreed that hehad no knowledge of the nature or the manufacturer of the valve that wasoriginally on the truck at the time of the citation issuance*. *Id.*

The witness then added, in the nature of a defense tohis earlier statements, that “these quick release valves, they are fairly muchthe same across the board.  As far as the different manufacturers historically,what you see here is what you're going to get in another manufacturer of thisquick release valve. Again, this is a fairly simplistic, very low level typevalve as far as what it's intended to do, and how it gets it done. So, thisdesign has not changed much, you may see different variations of how the valvebody is put together, or how large the valve body is, but the operation issimilar.” Tr. 80-81. 

The Court accepts that, in effect, based on thewitness’ testimony, once you’ve seen one quick release valve, you have seenthem all. The Court’s point is that, accepting that to be the case, it does notestablish that the valve in this instance was in fact defective and further thewitness has no basis to assert that the valve was defective, as he was neverpresent. As the Court summed up the issue, the witness agreed that he could notknow about the valve in question because he was never there, and therefore hedid not know the source of the sound and it is only through secondhand informationthat he could surmise that the hissing noise came from that valve. Tr. 81. Askedif that was a fair synopsis of his testimony, the witness agreed that it was. *Id.*

The Secretary’s non-attorney representative did nothelp himself when he tried to have the witness further explain about audibleair leaks. The witness responded, referring to Ex P 10, 

Okay, so I'm looking at the operation and linkage tests upin the left hand corner of that page. If you go to number two; it talks abouthow the test is conducted to determine an air leak. And it's using a soapsolution type test, in the soap solution type test you essentially have waterand soap mix together, and you are spraying it on the valve body or specificareas in order to determine if you can visually see any bubbles beinggenerated. The bubbles being generated are not necessarily audible leaks or youcannot hear those bubbles being generated. This is a visual test. And the firstpart of the test is a test for the sealing ring in which you apply soap aroundthe valve body pieces where they're connected together a soap solution andyou're looking for any bubbles being generated. It says in this data sheet thatthere should not be any leaks at all in that area. As far as the exhaust port,and we're using that soak solution to spray into the exhaust port area with theservice brake applied; and essentially you have to have it connected otherwiseyou would have air leaks coming out of the delivery ports also but you'retesting that in the balanced position. Again, where you're not supposed to haveany leakage generally from the diaphragm and exhaust port area. So, the testthere is a one inch bubble in three seconds at the exhaust port. Anything overthat, it's a visual test. Anything over that is unacceptable for this test. Inmy opinion, the soap bubble test, anything that's going to fail the soap bubbletest would not be audible at a distance from the valve.” 

Tr. 85. 

Thus, the witness agreed that he did not need thatsub-level test to determine the audible air leak if one is checking it “fromthe side of the truck, especially if you're standing around the truck, actuallyunder it. Any audible leak is going to fail the soap bubble test.” Tr.85-86. 

            Thewitness was then asked about Gov. Ex. P 13, which the witness described as thepiping diagram for a typical tractor with an air brake system. It was createdby the valve manufacturer, Meritor WABCO, as a troubleshooting guide. Meritor,like Bendix, “produces a variety of air valves for use on the braking systemsof over-the-road type trucks.” [8]Tr. 86-87. Asked if the valve depicted in the exhibit at page 11 had a leakcould stop leaking without any repair to it, the witness answered with aqualified “no,” stating: 

Generally, no. I mean, there are some times if -- coldenvironments, you can get some freezing in the exhaust valve or you can getcontamination in the valve through content and say you have a bad compressorand you get sludge that comes through. You can have items in there that couldbe worked out at that stage. 

Tr. 89-90. However,the witness, referring to the same exhibit, did remark that the exhibit instructsthat “leaks when service brakes are applied need to be repaired or replace.”  Tr.91. 

            TheCourt would comment that it does not take issue with the witness’ view, nor hiscitation to the valve manufacturer referred to in Gov. Ex. P 13, nor that, ifone has a service brake leak, it needs to be repaired. However, again, thequestion is whether the government established by a preponderance of the evidencethat the cited truck had such a leak. Tr. 91. Although the Court accepts that,speaking hypothetically about these valves in general, a valve failure can besudden and complete or it can be a “just a slow progressive failure,” that isnot the critical issue in this case.

Assuming that it were to be established that the citedtruck actually did have such a defective valve, the witness expressed “with theservice brake applied, ... it's difficult to determine what exact impact thatthat air leak has on the capacity of the service brakes. It's difficult todetermine, but the key is, there is that you already know that you have anaudible air leak. It's normal practice to go ahead and replace that valve whenit's a low risk for failure.”   Tr. 92. 

Again, even assuming that the air valve was defective,the witness acknowledged that one could try to “fix it through just trying tocycle the brake.” *Id.*The Court notes that initially the inspector didnot determine if such a procedure would fix the issue he believed to exist.   Onre-direct he did assert that he “afforded them the opportunity to pump thebrakes at least three times to see if there was any contaminant inside thebrake valve or inside that valve, that it would blow it out and seal.” Tr. 206. 

            Upon cross-examination,the witness stated that has never received any certifications regarding airbrakes. Tr. 95, 96. He has had a class on commercial braking systems, though itwas not a certification. *Id.*Asked if he was familiar with thetechniques and procedures in doing air brake inspections, the witness answered“generally familiar.” *Id.*Asked to elaborate, he expressed, “I mean, onthe job training, I've done inspections with MSHA enforcement before; part ofwhat we did a while back, I can't remember exact time frame or date. But therewas a time where the off highway or over-the-road type trucks, were an emphasisfor coal mine safety and health. And I was involved in different programs overthose years to conduct field inspections to assist enforcement conducting fieldinspections.” Tr. 96. 

Oddly, the witness was never provided with a diagramor picture of the component that was cited. Tr. 96-97. Other aspects of thewitness’ testimony did not, in the Court’s view, advance the critical questionof the functionality of the cited truck’s brakes.[9]

Beyond the comment in footnote 9, it did seem to theCourt that the witness was unable to directly answer several of theRespondent’s questions. For example, asked if “any fluctuation in the treadlevalve would cause the service relay valve to exhaust air, the witness respondedwith a question of his own, inquiring if the question was “about a servicerelay valve attached to the foot pedal.” Tr. 100. The Respondent reminded thewitness that the question was about the “service relay valve that that we'rehere for today.” *Id*. Respondent then inquired of the witness if anyfluctuation in the treadle valve will exhaust air. The witness responded that “[i]fa foot pedal was attached to a service relay valve, the service relay valvewould exhaust air based off of the foot valve telling it to. However, the quickrelease valve we are talking about today is not a service relay valve*.” Id.*The witness did acknowledge that, while *not any* fluctuation in theterminal valve would cause air to disperse, “distinct movement of releasing thefoot pedal would cause release of air.” *Id.*

Asked if he ever completed a pressure threshold testor net loss calculation in his experience, the witness Wright posed a questionin return, asking “what did the respondent “mean by a pressure threshold test.”Tr. 101. The witness then did respond that he has completed an air loss ratetest. *Id.* Responding to the question asking how such a test is completed,the witness answered, “if we're talking about service [brakes], there's two differentmodes. Just a general air loss test. One is with the brake applied, the servicebrakes applied, and one is with it released. So, as far as what you're checkingfor, you have the engine shut off, and you're applying, find the brake andchecking two things. You're ... checking the amount of air seepage or leakage outof the vehicle. ... And then you would also check it with the service brakeapplied, essentially looking at a PSI drop per minute.” Tr. 101-102.

He was then asked if he agreed that air components onthe cited truck are different from haul trucks and loaders, the witness statedthat he didn’t believe they were very different. The vehicle doesn’t matter interms of their function as a valve. Tr. 102. While the Respondent asked if Gov.Ex. 13 related to a different manufacturer than the one cited, the witness respondedthat the layout of the systems are “the same as far as the piping diagrams, [addingthat] there are components, for example, the quick release valve that we aretalking about today, has been used for 50 years in different pieces of mobilemining equipment.” Tr. 103. Marshall’s point was that such quick release valveshave “been used in mobile equipment for half a century.” *Id.* Elaborating,the witness stated “this quick release valve, it's been used in mobileequipment for half a century. It's used in other mining environments as far asmining equipment, stationary type of equipment. It's the simplest valve thatyou can have in an air brake system. And it's been around and it's usedoff-highway, it's used on-highway. I've seen them used in front-end loaders,rigid frame haul trucks, articulated haul trucks. The list goes on and on. So,It's been around. They're not exclusive. This particular valve is not exclusiveto on-highway trucks.” *Id.*

            TheCourt does not take issue with any of witness Marshall’s general statementsabout how these valves operate, nor that they are commonly used, nor that theyhave been in use for a long time.[10]However, the Court’s overriding point about the wealth of Mr. Marshall’stestimony is that it doesn’t advance the Secretary’s case in terms of proving thatthe braking system on the cited Ford L 8000 water truck was not beingmaintained in a functional condition. 

            Onredirect, witness Marshall was asked to explain the difference between the quickrelease valve and a service relay valve. Though the response appears in thisfootnote [11]the Court does not believe it advances the issue in need of resolution, namelydid the Secretary establish that the brakes were not functional. 

            Attemptingto focus the inquiry on that critical question of whether the brakes wereestablished to be non-functional, the Court then inquired of Mr. Marshall,“[i]f one is standing in front of a truck, such as the water truck, in thiscited instance, can air hissing from the area of the engine compartment only beattributable to a problem with a quick release valve or are there other sourcesthat could be the potential source of hearing air hissing?” Tr. 110. Thewitness then asked for the question to be repeated. The Court, in response,rephrased its question, noting “that the inspector heard a sound of airhissing. And so my question is very simply, can the sound of air hissing fromthe engine compartment of a truck such as this be attributable to any othersource other than a quick release valve? Can other things produce hissing besidesa quick release valve or not?” Tr. 111. Marshall responded that “[o]ther thingscan produce hissing. However, a key thing here is to remember that an audibleleak with the service brake applied is a red flag that needs to be addressed.” *Id.*The Court responded, taking note that without detracting from Mr.Marshall’s additional, nonresponsive, answer, that he was admitting that thereare other sources of air hissing. Marshall then conceded, “[i]n general, yes,absolutely. ... [b]ut *yes, there can be other leaks in other parts to thesystem that would attribute to a similar noise.*Tr. 112 (emphasis added).[12]

            TheRespondent then began its defense, calling Mr. Marty Rolfe. Tr. 118. By virtueof his background and experience, Rolfe established himself as a brakinginspector for commercial motor vehicle inspections. Tr. 122-124 andRespondent’s Ex. 6A, show that Rolfe has extensive background in matters ofbrakes. Elaborating upon his background, Rolfe stated he began working forVulcan in January 2018, where his 

primary job, [ ] wasto perform systematic inspections on our operator contractors. And to obviouslymaintain a safety record. This is complying with [ ] all applicable law aroundcommercial motor vehicles and operating roadways. Within a year of myemployment in commercial motor vehicles, I was asked to move to the actualcompany side and do the same type of work along with the company vehicles. Wehave a large commercial fleet obviously here in Vulcan, so I moved to thecompany side and started dealing with actual company vehicles rather thancontractor vehicles. And I've been here on the company side ever since. 

Tr. 125. 

Respondent’s Exhibit 6C, Mr.Rolfe’s training, was then admitted without objection. *Id.*Rolfe statedthat it reflects his “certification that [he] received in 2002 from the North AmericanStandard inspection of driver examinations. It allows [him] to conduct levelthree inspections. These levels encompass examination of drivers, the actualinspection of the commercial vehicle, which also includes inspection on acommercial motor vehicle and including the air brake system. *Id.* Inparticular, 

Level one inspection would bethe most thorough inspection that you would do on a commercial motor vehicle;where you would check basically bumper to bumper. But you would include an air brakesystem, if that truck was so equipped, and that you would inspect eachcomponent of that air brake system and you would check the functionality of theair brake system separate from what would be done in level two. 

Tr. 126-128. 

            Rolfecontinues to actively perform brake inspections, stating he “conduct[s] [ ]brake inspections on air brakes whether they're on mine equipment or [not] ...There's no difference in inspecting.” Tr. 129. Rolfe identified Respondent’sExhibit 6 E as his “certificate from the Federal Motor Carrier Safety Administrationgranting me the authority to conduct and at the time, enforce laws on anycommercial motor vehicle, here in the United States.” Tr. 130. The Court noted,and Rolfe confirmed, that the exhibit reflects he “successfully completeddealing with standard level one ... [which is] the ultimate level underinspections.” *Id.*

            Turningto the citation in issue, Rolfe was asked about the remark in that citationthat “when tested, there is [an] air valve at the center front tandem.” Tr. 131;Citation No. 9428093. Preliminarily, Rolfe affirmed that he has seen andinspected the cited truck. Tr. 132. This occurred within two or three daysafter the citation was issued. *Id.*Rolfe stated that he did a level oneinspection of the truck at that time. Tr. 133. At that time the citation hadbeen terminated. Rolfe asked that the valve be kept with the truck. Inperforming his level one inspection, Rolfe informed that he “was a littleconfused by the nomenclature on the inspector[’s] citation. The citation statesthat the inspector tested the air brake valve, but Rolfe saw no air losscalculation written anywhere on the citation. Then the brake valve had to belocated.” Tr. 133-134. 

            Rolfethen went on to explain that 

[a] brake valve is a generalumbrella terminology. [The valve in issue in this case] happens to be a servicerelay valve. But also I had to determine the location of it because theinspector wrote that it was in the center of the front tandems. *That's notan accurate configuration of this truck.*

Tr. 134. (emphasisadded). 

He continued,

[w]hen I hear thecenter of the front tandems, I expected the truck to be a five-axle truck or greater.I found this to be a three-axle truck. So, it was actually on the number two,this truck had one set of tandems. The tandem set is two axles within 48 inchesof each other. So, this was not a five-ax[le] or more, it was actually a three-axletruck. And I was able to locate the specific component on the number two axlebecause obviously, it was a new component. It wasn't dirty. And ... I was able torecognize it as a service relay valve, the components that came off the truck. Andupon inspection of the truck, I found that the integrity and the adequacy ofthe brake system was within the specs of the manufacturer's standards as wellas the commercial safety vehicle glances at a service criteria. 

Tr. 134-135.

Explainingfurther, Rolfe stated,

So, then afterthat, I went to the component that was removed from the truck. I was able toinspect the body of the component. I found that it was not cracked; it was notdamaged by being struck by [ ] a foreign object. I was able to inspect the deliveryport of the vehicle. The delivery was port proper. There was no knurling on thethreads. The actual fitting that they screwed into the delivery port, thosethreads were proper, not rusted, not knurled, they were not replaced. I went tothe supply port. The supply port is where the service line actually supplies theservice relay valve with its initial air. Again, there was no cheeping, noknurling of the threads. The fittings that supply the supply port, thosefittings were proper. They weren't knurled, they weren't rusted or anythinglike that. Next, I went to the control ports; same thing, the control ports areactually a little bit different in configuration as they provide air out to thebrake chambers. Those control ports, same thing, the threads were not knurled. Therewas no evidence the air was escaping. *When air escapes, just like water,it's going to leave residue*, it's going to move dirt around, it's going toleave traces and evidence that the air is escaping. Those control service portswere in proper condition, no cracking, no bending, no cracking, no missingports or anything like that. Then I went to the exhaust port because the servicerelay valve is designed to exhaust air as well. It keeps the air brake systemfrom becoming over pressurized to the point that you essentially blow yourdiaphragms and your brake chambers. And your brake chamber[] is where thepneumatic energy is turned into mechanical energy to apply your brakes on yourcommercial vehicle. The exhaust port was not worn, it was out burned, it wasnot cracked, it was not full of material; it wasn't blocked. If it was blocked,the consequence of that, that I would expect to see is an over pressurizationof the brake chambers to the point the diaphragms will be ruptured. Or it wouldtry to push air out of the control ports, which I would see evidence of. *So,I was able to actually inspect the component, even though I didn't get to see thefunctionality because it was removed from the truck. I was actually able toexamine and see evidence that it didn't appear to be defective at all.*

Tr. 135-136(emphasis added).

The Court then interrupted for the purpose ofclarification of the record, asking if it is accurate that when Rolfe came uponthe scene, and saw the truck, the repair had been made and therefore he neversaw the truck before the repair had been made. Rolfe confirmed that was thecase. Rolfe also confirmed that there was a new service relay valve installedon the truck at that time. Tr. 137. He then confirmed that the service relayvalve he saw was the one that had been removed from the cited truck. Tr. 138. Askingif the Court correctly characterized that Rolfe, upon examining the valve whichhad been removed, found nothing wrong with the valve, Rolfe agreed that was thecase. *Id.*

Rolfe then explained how he performs an air brakeinspection. He maintained that to check the functionality and integrity of anairbrake system, one performs a threshold pressure test.[13]This is the test used for all commercial motor vehicle operators. Tr. 139. Thetest provides an air loss calculation that allows one “to determine the airpressure balance, and whether or not the air brake system has a faultycomponent somewhere in it that is leaking air.” *Id.* This is thepreferred test because it is a simple test that an inspector can perform. Tr.139-140. As he expressed it, “it will reveal whether or not the air brakesystem has an air leak within the system somewhere. Once you determine an airloss calculation, then if you find it necessary, you can chase down that component.It's a very elementary preliminary test to do.” Tr. 140.    It is important,Rolfe maintained, that the inspector does the test on his own, because ifsomeone sits in the driver’s seat while the inspector walks around the truck,any fluctuation of pressure on the treadle valve will cause exhausting of air. Thetreadle valve is actuated by the brake pedal. *Id.*He noted, as anexample, if one is next to a commercial vehicle at a red light, one will hearthat air exhaust, but it does not mean that the brake is not functioningcorrectly. Instead, it may only “mean that the driver has let up on the brakepedal a little bit.”*Id.*

Thus, Rolfe summed up that, in his view, if one wants“to verify if an air brake system has a leak of any kind, you must do a thresholdpressure test and generate that air loss calculation.” *Id.*

            Askedif there is “any range of air loss that you can have before a brake system isdeemed non-functioning,” Rolfe answered that “[a] lot of times the range willbe set by the manufacturer. A search criteria notes the air loss rate. But italso notes that an air loss rate must be done when a truck's at a certainconfiguration. You can't have the parking brakes applied. You must have yourbrakes released, so all of your air brake systems can actuate. So, what we dois we calculate it over a one-minute period. The initial test ... is an actuationof the entire brake system completely released from the parking configuration. Andthen you will generate an air l[o]ss rate. Tr. 141. 

            Askedif Rolfe found any information of MSHA “using other guidelines, such as FMCSA,CVSA, out of service criteria as resources to complete any inspections,” Rolferesponded that he had located case law showing such use. Tr. 142. Rolfe thenproceeded to identify the documents he located which he believed supported thecontention that MSHA has used other guidelines in completing such inspections. TheCourt required the witness to explain the basis for contending thatRespondent’s exhibits were relevant to the Court’s determination of the issueof brake functionality. Tr. 145. 

Rolfe first identified Respondent’s Exhibit 3A,wherein an MSHA inspector speaking to a citation, measured the stroke distanceon a push rod to determine the thickness of each brake. That method, Rolfeasserted, only exists from FMCSA [Federal Motor Carrier Safety Administration]regulations. *Id.* Rolfe added that the MSHA inspector stated he reliedupon the North American out of service criteria guideline for commercial motorvehicles. That means, Rolfe contended, that “in order to determine that thisvehicle ... actually had non-functioning brake systems, [the inspector] had to goto the CVSA out of service criteria.” Tr. 146. 

The non-attorney CLR objected to theadmission of Respondent’s Ex. [4]A on the basis that it was an administrativelaw judge decision and that the decision was overturned by the Commission. Tr.147. The Court noted that the claim that the decision of the judge wasoverturned might not have reversed the limited purpose for which Rolfe citedit. Therefore, depending on the scope of the Commission’s ruling 

 

the fact that this may have beenreversed by [t]he Commission is not necessarily the end of the story, because[the Court] would have to read what [t]he Commission said; what the basis oftheir reversal was, and then determine if the point that Mr. Rolfe made aboutthe decision still stands.

Tr.148. 

 

Upon examining the cited administrativelaw judge decision, *Nally & Hamilton Enterprises,*(June 2009) (ALJ),the Court notes that the CLR *completely failed* to understand theCommission’s reversal. The Commission sent back only *one*of thecitations involved in that decision and that one dealt with a back-up alarm,not brakes. There was one citation addressing brakes and the decision by theAdministrative Law Judge finding that the Secretary failed to show that thetruck had inadequate brakes was *not* disturbed, *nor even challenged*,upon appeal. And therefore, in fact, the Respondent is correct in noting thejudge’s remarks that 

 

During his inspection, [the inspector] conducted a brake function teston the Mack lube truck. [The inspector] asked the operator of the truck tooperate the engine until a maximum of 120 psi was achieved which pressurizedthe braking system. The truck operator was then requested to turn off the truckengine, place the transmission in low gear, and release the parking brake. [Theinspector] then walked around the truck and measured the stroke distance on thebrake push rods to determine the effectiveness of each brake. Excess travel ofthe push rod causes metal to contact metal that results in a loss ofcompression. This condition is corrected by adjusting the slack adjuster tolimit the push rod travel to under two inches. **[The inspector] testifiedthat he relied on the North America out-of-service criteria guideline forcommercial vehicles**. 

 

31FMSHRC 689 at *4 (emphasis added) (citation omitted).

 

This is yet another dismaying example ofthe problems attendant to having non-attorneys attempt to practice law in minesafety and health matters. Government representatives who do not have a licenseto practice law should not be engaged in the practice of law. 

 

            Turningto Respondent’s Exhibit 3B, regarding *Oil Dry Production Co*., 40 FMSHRC876 (June 2018) (Administrative Law Judge Gill), Rolfe stated that it involveda citation for nearly the same type of Ford L 9000 truck. Referring to page 32of that exhibit, Rolfe noted that the inspector informed 

from his experience, he expected a system tick in thismanner to have initiated a pressure drop off from between 10 and 15 PSI fromthe normal operating value of a 110 PSI to 120 PSI. He's just noting the normaldrop off during the testing. Inspector LaRue waited for the initial drop off tostart his measurements. LaRue testified that to his knowledge the drop off inpressure of 6 PSI within a 60-second period would qualify as a failure. 

Tr. 150. 

Rolfe then explained to the Court that his point wasthe use of the threshold pressure test, contending that was the test that theinspector was employing. *Id.*Continuing, Rolfe stated that the test givesthe inspector 

an air loss rate calculation todetermine whether or not the air brake system is truly functioning or if it'soutside of what the North American standard out of service criteria provides ormanufacturer's suggested pressure drop rate. [Rolfe agreed] with [the]inspector [ ] that in a 60-second period that, that drop off rate would have --the drop off rate of nearly 30 PSI would be a failure in the system. And [onthat basis, Rolfe] would agree with a citation. But he used the commonpractices under FMCSA to determine whether or not he had a functioning airbrake system or not. 

Tr. 150-151. 

            TheCLR objected, noting that by the testimony of the issuing inspector in thismatter, MSHA doesn’t do these tests. The objection was overruled. Tr. 151. 

            Rolfethen turned to R’s Ex. 3C. This exhibit is an MSHA fatality report dated March17, 2015, CAI-2015-07, involving Rogers Petroleum Services and RepublicanEnergy. Rolfe maintained this was another example of 

MSHA'suse of Federal Motor Carrier Safety Administration rules and regulations, andout of service criteria. This is actually a tanker truck that overturned onhaul road. During the investigation that MSHA conducted, the service brakechamber strokes were measured and evaluated in accordance with Kenworthoperating manual for this truck and the Commercial Vehicle Safety Alliances;CVSA out of service criteria handbook. So, again, these regulations under 49CFR and the CVSA promulgated out of service criteria are being used. So, theKenworth manual defines proper maintenance of the vehicle and CVSA handbook hasdetermined and when the vehicle is to be immediately taken out of service. So,again, they relied upon these regulations and out of service criteria to make adecision on whether or not the brakes were in functioning condition or not.

Tr. 152. 

            TheCLR’s objection was that the exhibit related to an accident investigation andthat the government was not contending that Inspector Wright was an engineer oran investigator. Tr. 153. The exhibit was admitted, with the Court explainingthat the weight afforded to an admitted exhibit is a separate issue.

            Nextup was Respondent’s Ex. 3D. It pertains to MSHA and an administrative lawjudge’s decision in *Bresee Trucking*, 35 FMSHRC 2124 (July 2013)(Administrative Law Judge Bulluck). Involved was a Mack Truck, a commercialmotor vehicle. Focusing on page 2 of 6, Rolfe stated that 

“[t]he inspector in th[at] case,also completed a threshold pressure test to determine the functionality of thebrake system on this truck. [In the second paragraph of that page] it notesthat the brake pressure gauge indicated that the brake system lost 20 pounds ofair in 27 seconds. *That's your air loss calculation, [ ] [and] [t]hat canonly [be] calculate[d] through a threshold pressure test which was not done inour case*. *So, that's how you determine the functionality and theintegrity of the air brake system.*And this inspector [i.e. regarding R’sEx, 3D] did that ...” 

Tr. 154 (emphasisadded). Rolfe next noted that at page 3 of 6 of the same exhibit, the inspectorfor that case 

opined that the truck brakes maynot work properly without full amount of air pressure available and that thenormal use the leak could expand or rupture chambers which would render theleft brake completely inoperative and incapable of stopping the truck. Hesurmised that the air leak was coming from the service brake chamber ratherthan the parking brake chamber. Since the parking brakes were not activatedduring the inspection, and the gauge in the cab indicated that the air wasbeing lost from the service brake system. That's what you find out through athreshold pressure test. But the more important statement made here is [thiswas done] according to the North American standard vehicle out of servicecriteria used by MSHA. Tr. 155. 

            Respondentthen referred to Respondent’s Ex. 3 E, at page 5, which exhibit involved an“underground coal mine fatal power haulage accident, [at] Savage Industries atPinnacle Mine.”  Tr. 156; *see also*, Jerry O.D. Lemon, et al., *Reportof Investigation: Fatal Powered Haulage Accident*, *Savage Industries Inc.*,Mine Safety and Health Administration (June 10, 2002),https://arlweb.msha.gov/fatals/2002/‌ftl02c08.htm (“*Report of Investigation:Savage Industries*”). In that matter, Rolfe stated, 

three defects were found. Onebrake chamber had an audible air leak when the service brake was applied, andthe brakes at two wheels were out of adjustment. Audible brake chamber air leakwas on axle number two on the right side. And out of adjustment brakes are onthe axle number seven. The air compressor maintained 120 PSI of reservoirpressure despite the audible air leak. When the service brake was fully appliedand the engine was at a low (inaudible), the type 30 brake chamber on the sevenleft position had a push rod travel of 2 and 1/8 inch. It was therefore 1/8inch beyond the brake adjustment limit. The Type 24 long stroke brake chamberson the seventh position had a push rod travel of 2 and 1//2 inches and wastherefore, 1/2 inch beyond the brake adjustment limit. Based on the criteriaestablished by the Commercial Vehicle Safety Alliance, the percentage ofdefective brakes on the vehicle did not exceed the allowed 20 percent limit. So,the vehicle was still suitable for use. The above defects did not affect theparking brake performance. The CVSA, North America uniform out of servicecriteria are nationally recognized by the trucking industry for highway trucksand [are] used by MSHA to determine brake adequacy.

Tr. 156-157. Rolfehighlighted the last sentence which notes that the “CVSA North American uniformout of service criteria are nationally recognized by the trucking industry forhighway trucks and are used by MSHA to determine brake adequacy.” Tr. 157; *Reportof Investigation: Savage Industries*. The report’s conclusion also notes that“[t]he service and parking brake systems were inspected and met the criteriaestablished by the Commercial Vehicle Safety Alliance (CVSA) for trucks inservice on public highways.” *Id.* at page 7.

            Respondent’sEx. 3F was next. This exhibit pertained to a fatal power haulage accident onJune 10, 2004. Sherman L. Slaughter, *Report of Investigation: Fatal PoweredHaulage Accident, Tug Valley Coal Processing Company,*Mine Safety andHealth Administration,**https://arlweb.msha.gov/fatals/2004/ftl04c11.asp.Rolfe noted from page 9 of that exhibit that involved was a commercial motorvehicle three-axle dump. When the vehicle was tested it was found that:

the right front tandem drive axle brake chamber had anaudible air leak with a foot pedal and parking brake released. The leak ratewas 60 times the maximum acceptable level of leakage as specified by themanufacturer of Mack. The chamber would also leak if the foot pedal or treadlevalve that we discussed earlier was applied when the parking brake was engageddue to the anti-compounding feature within the parking brake system.

Tr. 158-159. Rolfeexplained that this involved the “threshold pressure test. [Rolfe expressed hisview that] it was appropriate for the inspector to do that [test] to get [the]air loss rate calculation, which he [did in that case].” *Id.*Rolfe addedthat this was “just another example of why it's important to do a thresholdpressure test which was absent from [the citation in issue in this case] [as]...[i]t goes to the functionality and adequacy of the air brake system.” *Id.*

            TheRespondent continued with its next exhibit, Respondent’s Ex. 3 G, pointing topages 14 through 16 of that exhibit. It involved a surface coal mine, the *ColonyBay Surface Mine* and the MSHA investigation associated with that case. Rolfe’spurpose for this exhibit was as another example showing that the functionalityand adequacy of an air brake system should be assessed through a thresholdpressure test. Tr. 160-161. As he stated, 

the service br[akes] werefunctionally tested using the foot valve or the service brake pedal. All sixservice brakes cycled when the foot valve was cycled. Service brake pressure ateach of the three axles was consistent with a primary and secondary take systempressures. This is a threshold pressure test. It's important to determine thefunctionality of an air brake system. This was done by this inspector as well.

*Id .*Rolfe thenhighlighted page 16 and table number five, where it notes that “the secondaryair tank system pressurized experience approximately 2 PSI per minute; air lossof air pressure with its brake chamber removed from the system at its initialpressure of 110 PSI. *Again, that's an air loss rate calculation determinedby a threshold pressure test*.” Tr. 160**(emphasis added).

            Followingthat, Respondent’s Exhibit 4A was admitted, with the Court noting that it couldhave taken official notice of the exhibit in any event, as it reflects a June23, 2009 decision issued by Administrative Law Judge Feldman. This decision hasalready been discussed, *supra*.[14]Rolfe noted that the decision by Judge Feldman involved 

an MSHA inspection of a RD 600SX Mack [ ] truck. The pointagain, what I'd like to bring [to the Court’s] attention is an MSHA Inspector,... testif[ying] ... that he relies on the North American out of service criteriaguidelines for commercial vehicles. ... But the most important part of that statementis that the MSHA inspector testified that he relies on the North AmericanStandard out of service criteria.

Tr. 163.

            Inresponse to the Court’s inquiry about the purpose and value of consideringthese exhibits offered by the Respondent, Rolfe responded that 

the point we're trying to make, Your Honor, is that 30 CFRhas absolutely no guidelines, no promulgated standards or anything concerningair brake systems. MSHA sister agency FMCSA, however does. They've got an outof service criteria that sets forth when an air brake system is functioning andwhen it is to be considered non-functioning or out of service.[15] It provides plenty of guidelines on how to conduct threshold pressure tests,which was absent in this case here. [By contrast, in this case] [w]e have anMSHA inspector who felt that he heard an air exhausting from a component that'sdesigned to exhaust air while the brake pedal is engaged, fully charging thesystem; which by the citation, that's exactly the configuration that Inspector Wrighthad the vehicle in. So, [one]would expect some sort of exhausting of airthrough specific components while the vehicle is in that configuration.

Tr. 164.           ~~~~

Following that was Respondent’s Exhibit 7A, a one pagedrawing of a typical relay valve, was admitted. Tr. 170-171. While admitted,and included as a footnote for the reader’s convenience,[16]the Court considers the exhibit and the testimony related to it of minimalvalue, as it does not add to the issue to be resolved here, again namely, didMSHA establish by a preponderance of the evidence that the brakes on the citedtruck were not functional? However, as the footnote demonstrates, by displayingRolfe’s testimony, it is useful in further establishing his considerableexpertise and knowledge about braking systems and service relay valves. 

Rolfe was then asked if it “correct that anyfluctuation in the brake pedal would allow the system to exhaust air with thisrelay valve of what we're discussing?’ Rolfe responded, “Yes, sir. Just like Isaid, if you're sitting next to a truck (inaudible), any fluctuation ofpressure, you're going to have air exhausting from an air brake system.” Tr.175. 

Then directed to Respondent’s Exhibit 7B, at thesecond paragraph, the Respondent noted that there is a reference there that the“brake force is adjustable and when released, the relay valve exhausts air intothe atmosphere. That is straight from the Bendix of this component.” *Id.*Rolfewas asked if he agreed with that statement and he responded that he did agreewith it. Tr. 176.  

Exhibit 7C, the receipt for the service relay valve,was then introduced. Rolfe stated that was not the component that he examined. Instead,he explained that is a quick release valve, which was included as an exhibitfor the purpose of providing contrast. Instead, he informed that the actualcomponent was depicted on 7B on the Bendix page. He noted that they are all servicerelays, but all have the same function. *Id.*The Court then inquired ofRolfe why should it care about the second page of 7C, asking why it is ofimportance in this case. Rolfe answered it was included for contrast as one whois not technically sophisticated on service relay valves can “very easilymistake the two,” and therefore he commented that one has to be “very carefulwhat you're looking at.” [17]Tr. 177.

            Cross-examinationof Rolfe began with his admitting that he is not an MSHA inspector. Tr. 182. Healso agreed that he was not present at the time the citation was issued. Tr.185. The Court notes that he had already acknowledged these points during hisdirect testimony. Although the government remarked that the Respondent couldhave offered testimony from its mechanic at the quarry, this displays confusionabout the parties’ respective roles. Tr. 186. It is the government’s burden to establisha violation by a preponderance of the evidence. It is not the Respondent’s dutyto disprove the violation.  Tr. 186-188.

For its own understanding of Rolfe’s testimony, theCourt inquired: 

[a]nd the service relay valve, and in my understanding ofthe testimony [ ] you will looked at that [valve] from every possible angle,other than perhaps X-raying it or taking it apart. And as you did that, my understandingof the testimony is that you observed nothing, zero, wrong or defective thatalerted you to the possible problem with that piece that was replaced. Is thatfair or not accurate? Tr. 190. 

Rolfe responded “[t]hat’s completelyaccurate, Your Honor. I examined the component for any evidence of any defector any cracks, broken off pieces, missing anything, and I found absolutely zerodefects with this component.” *Id.* And, further, Rolfe confirmed thatshort of an x-ray or completely taking the component, there was nothing else hecould do regarding examination of it. Tr. 191. Thus, in terms of any outward signsof a problem, Rolfe noted that he saw no issues. These outward manifestationscould include: narrowed threads, creating the potential for air to slip past,or a crack in the body of the component and he observed neither issue. Tr.191-192. 

            In afurther effort to make sure that it understood certain aspects of Mr. Rolfe’stestimony, the Court presented the following hypothetical: “if [one] come[s] comeupon a truck, such as the one involved here of that class, and [one] hear[s] aair hissing noise, does that per force indicate to you that there could be a problemwith the braking system?” Tr. 194. 

Rolfe responded, 

It doesn't immediately say there's a problem because[there] could be other explanations for that air exhausting. It could justsimply be that the driver or operator failed to walk around and close (inaudible)on his air service reservoir. And he needs to do that so the air reservoir cancapture air. It could be something as simple as that. It could be the airbagsfilling up on the suspension system. It could be the suspension filling up onthe operator's seat. There [are] numerous reasons that you will hear air. Butagain, that goes back to being a qualified inspector to be able to recognizeand determine [ ] whether it's a defect, or if it's by design.

Tr. 194-195*.*

            Followingup on that response, the Court then asked if it was Rolfe’s “position that ifone suspects that there's a problem with the braking system that the onlylegitimate way to determine that is by conducting a threshold pressure test?” Agreeingthat was true, Rolfe added only one qualifier – namely, apart from some impactto the system, such as a truck hitting an object and ripping off a brake chamber,Rolfe agreed that 

if the air brake system is intact, and the air brake system-- and there's no significant damage like that, yes, you want to do a thresholdpressure test, to generate your air loss calculation. And that will tell youwhether or not if you have a sound, adequate air brake system.

Tr. 195-196.

            TheCourt then asked, characterizing its question as a “tough one” for Rolfe, ifone assumes hypothetically that the part is replaced “and the inspector thengoes to the truck and no longer hears the noise, doesn't the fact that thatnoise is no longer present under this hypothetical tend to indicate that therewas a defect with the valve ... [and there is] [a] new part with no hissing” Tr. 196.Rolfe answered, 

Well, no, sir. And let me let me explain. ... If you have nohissing, there's several explanations for that. Number one, you may have anoperator in the seat at that moment that might have pushed the pedal to thefloor and hold it there and is not releasing pressure. In this case, here, Iwill refer you back to the inspector's notes that during his post brake test,he did it with the engine running. If you're going to have an engine running onan old model Ford L8000, you're going to have a whole lot of noise levels toovercome to hear [an]air leak. 

Tr. 196. 

            Inrebuttal testimony, the Secretary recalled the issuing inspector, Mr. Wright. Theinspector was then asked “[t]he day that you issued the violation to Vulcan onthe truck; when you were actually checking it, did you have the driver turn theengine off on the truck while you were checking for air leaks?” The inspectorresponded yes, he did that. Tr. 201. The inspector then was asked if he couldtell exactly where the leak came from, to which he answered, “[i]t came from a[n]air valve located on the frame at the front tandem.” *Id.*Wright alsostated that the truck was running[18]and that he felt the air leak. Tr. 202. The inspector also acknowledged that hedid not remove the truck from service when he issued the citation. However, themine operator did remove it. The Court then asked why the inspector did notremove it from service, to which he responded that he “gave them a terminationtime [for] that next morning to have the truck fixed.” Tr. 202. On re-cross-examination,the Respondent asked if the inspector held his hand under the component, towhich the inspector responded yes. Tr. 205. 

            Asnoted earlier, on re-direct, the CLR asked the inspector what he had the mineoperator perform in order to check the brake. The inspector answered “[w]hen Ifirst heard the air leak, it was a continuous leak. I afforded them theopportunity to pump the brakes at least three times to see if there was anycontaminant inside the brake valve or inside that valve, that it would blow itout and seal. It never did. They pumped it three times and it was still had acontinuous leak. When he held the foot brake down, it was always a continuousair leak.” Tr. 206. 

On further re-cross-examination, the inspector wasasked if he could “say 100 percent for certain that the operator was holdingsteady pressure to that brake pedal the whole time during [his] inspection.” Tr.206-207. Wright answered that the driver was asked to do that, but he could notconfirm that was done. Thus, he could only assume that the driver did so. Tr.207. 

            Giventhe inspector’s testimony, that he put his hand under the engine and felt theair, the Court inquired if the Respondent wished to recall Mr. Rolfe to respondwhether that in fact that did indicate that there was a problem. The Respondentaccepted the invitation for additional testimony on this issue from itswitness, Rolfe. Upon being recalled, Rolfe was asked if one is 

doing a walk around on the vehicle, doing a doing aninspection, and you heard an exhaust or a wisp of air and you got under thetruck. And in this component, you stuck your hand under and you felt an exhaustof air. What does that mean, and what does that verify? 

Tr. 210. Rolfeanswered that it 

means [ ] that there's anexhaust air. What we'd have to verify is does the location that it's comingfrom, is it [from the]brake ... [is] it [from] a[n] [im]proper connection [o]r isit a component that is designed to exhaust air? We have to determine what we'relooking at.

Tr. 210-211. 

The Court then inquired further about this, asking: 

hypothetically that I'm at a truck, such as the one that'scited in this case, and I put my hand under the service relay valve, and I feelair, does that not tell me that there's a problem with the service relay valvebased solely on my feeling air coming from that relay valve?

Tr. 211. 

            Rolferesponded, 

not in this case, Your Honor, becauseif you'll recall, [Inspector] Tommy Wright's citation, he had a person up inthe cab with the brake actuated.  So, he's actually sending pressure back tothe service relay valve. So, now you'll need to determine if that exhausting iscaused by the pressure and is properly exhausting into the atmosphere, as yousaw in the WABCO and Bendix examples, or if you truly have an exhausting of aircoming from a different part of the component, where you have a defect. So,it's not black and white. *That's why we*[ ]*harp on being qualifiedto do these air brake inspections. That's why FMCSA has promulgated the standardto be qualified, because there's so many variables that can be placed than eventrying to, hypothetically create a situation, there's a lot of variables thatyou'll have to consider*.

Tr. 211-212(emphasis added). 

            TheCourt then inquired, if it is Rolfe’s position that “merely placing your handunder the valve is insufficient to determine if the service relay valve ismalfunctioning ... [or] what one has to do instead is to do a bubble test?” Tr.212. Rolfe answered that was the case, as 

[j]ust by trying to identify an exhaustion of a servicerelay valve [which is] *designed to do that*; you need to do a threshold pressuretest, and generate your air loss calculation and see if it is in excess of themanufacturer's recommendation, or the out of service criteria. ... [the][t]hreshold pressure test is your functionality and integrity test. 

Tr. 212. (emphasisadded).

** **

** **

** **

**DISCUSSION**

The safety standard at issue here, 30 C.F.R. §56.14101(a)(3),titled “Brakes,” provides at the cited subsection that “All braking systemsinstalled on the equipment shall be maintained in functional condition.” 

In *Daanen & Janssen, Inc*., 20 FMSHRC 189 (Mar.1998), the Commission construed the same standard in issue in this matter andthat decision is instructive. The language of the standard has remained thesame. In that decision, the Secretary contended that the plain language of thestandard mandates a finding of violation “*when a component of the brakingsystem is not maintained in functional condition, regardless of whether thebraking system is capable of stopping and holding the vehicle*.” *Id.*at 192 (emphasis added). The Commission, upon determining that the language ofthe standard was vague, held that the Secretary’s interpretation wasreasonable. In that case, the administrative law judge found that the citedfront-end loader’s “rear adjusting bolts, [which were] ‘integral component[s]’of the loader’s service braking system, were frozen and inoperative.” *Id.*at 191. The Commission observed that the 

common usage of the term “system” contemplates “a complexunity formed of many often diverse parts subject to a common plan or serving acommon purpose,” and “an aggregation or assemblage of objects joined in regularinteraction or interdependence.” *Webster’s Third International Dictionary(Unabridged)*2322 (1986). Because the definition of the term “system”entails an interrelationship of component parts, it follows that for the systemto be considered functional, each of its component parts must be functional.[19]

*Id.*at 193*.*

            Thus,the Commission’s decision in *Daanen & Janssen*makes it clear that adefective air valve, as an undisputed component of the cited truck’s brakingsystem, must be functional. 

However, that does not end the inquiry, as theSecretary must still establish by a preponderance of the evidence that thecited valve was in fact defective. The preponderance of evidence is theappropriate standard of proof in proceedings before Commission administrativelaw judges. To prevail on a penalty petition, the Secretary bears the burden ofproving an alleged violation by a preponderance of evidence. *RAG CumberlandRes. Corp*., 22 FMSHRC 1066, 1070 (Sept. 2000), aff'd, 272 F.3d 590 (D.C.Cir. 2001); *Jim Walter Res., Inc*., 9 FMSHRC 903, 907 (May 1987). “Preponderanceof the evidence means the greater weight of the evidence, such that theSecretary has demonstrated that the violation is more probable than not.” *MarionCounty Coal Co*., 40 FMSHRC 39, 46 (Feb. 2018) (Acting Chairman Althen &Commissioner Young, concurring).

Other Commission cases are in accord with thisexpression of the preponderance standard.

The Mine Act imposes on theSecretary the burden of proving each alleged violation by a preponderance ofthe credible evidence. *Garden Creek Pocahontas Co*., 11 FMSHRC 2148, 2152(November 1989). The preponderance standard, in general, means proof thatsomething is more likely so than not so. *See* 3 Edward J. Devitt et al., *FederalJury Practice and Instructions* § 72.01 (1987); 2 Kenneth S. Brown et al., *McCormickOn Evidence* § 339, 439 (4th ed. 1992); *Hopkins v. Price Waterhouse*,737 F. Supp. 1202, 1206 (D.D.C. 1990). The Supreme Court, in *Concrete Pipe*,124 L.Ed.2d at 563, relied on by the judge, 16 FMSHRC at 895, explained that“[t]he burden of showing something by a ‘preponderance of the evidence,’ themost common standard in the civil law, simply requires the trier of fact ‘tobelieve that the existence of a fact is more probable than its nonexistencebefore [he] may find in favor of the party who has the burden to persuade the[judge] of the fact’s existence.”’ *See**also* 2 McCormick § 339, at439 n.12, citing Model Code of Evidence, Rules 1(3) & (5). 

*In re:Contests of Respirable Dust Sample Alteration Citations*, 17 FMSHRC 1819,1838 (Nov. 1995).[20]

 

Underlying the determination of the preponderancestandard is application of the substantial evidence test, a subject alsoaddressed by the Commission in *Daanen & Janssen.*There, theCommission remarked: 

[w]hen reviewing anadministrative law judge’s factual determinations, the Commission is bound bythe terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. §823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as areasonable mind might accept as adequate to support [the judge’s] conclusion.”’*Rochester & Pittsburgh Coal Co.,* 11 FMSHRC 2159, 2163 (November1989) (quoting *Consolidated Edison Co. v. NLRB,* 305 U.S. 197, 229(1938)). In reviewing the whole record, an appellate tribunal must consideranything in the record that “fairly detracts” from the weight of the evidencethat supports a challenged finding. *Midwest Material Co.,* 19 FMSHRC 30,34 n.5 (January 1997) (quoting *Universal Camera Corp. v. NLRB,* 340 U.S.474, 488 (1951)).

20 FMSHRC at 195. 

The basis for the Secretary’s alleged violation of 30C.F.R. §56.14101(a)(3) is that, “when tested the airbrake valve had an audibleair leak while the pedal was being engaged.”  Tr. 18-19. To establish this, theSecretary relied upon two witnesses – the inspector who issued the citation,Mr. Tommy Wright, and a brake expert from MSHA’s Technical Support Center, inTriadelphia, West Virginia, Mr. Fred T. Marshall. While Mr. Marshall wasundoubtedly qualified to testify about braking systems, including how airbrakevalves work, none of the testimony he offered was of value to resolving theissue before the Court, to wit: 

Did the Secretary establish, by a preponderance of theevidence, that the airbrake valve, as an acknowledged component of the citedtruck’s braking system, was in fact defective? 

Mr. Marshall’s testimony, while informative as amatter of general interest about braking systems on trucks, did not advance theresolution of the issue. The reasons for this are plain and not in dispute: Marshall*never saw* the cited Ford Truck, either before the citation was issuednor after. Consequently, he could offer nothing about the noise the inspectortestified to hearing. Further, *he never saw the valve*, alleged by theSecretary to have been the source of the noise, even after the suspect valvehad been removed, though there was nothing preventing the Secretary from accessto the valve through discovery.

This means that the Secretary’s ability to establishthe alleged violation rested entirely upon the testimony of Inspector Wright. Forthe reasons which follow, deficiencies in the testimony of the MSHA inspector,when considered in comparison with the testimony of the Respondent’s brakeexpert, Mr. Marty Rolfe, who *did examine* the cited valve and otherwiseraised significant issues detracting significantly from Wright’s testimony,leads the Court to conclude that the Secretary of Labor did not establish, by apreponderance of the credible evidence, that the cited brakes werenonfunctional.

Wright testified that he issued the subject citation *upontesting* the brakes because he heard an audible present with the brake pedalengaged. His citation asserted that the audible emanated from a brake air valveat center of the front tandem. However, the inspector acknowledged that the truckpassed a brake test, making an accident unlikely. 

No one has challenged that the inspector heard anaudible air noise. Nor does anyone contend that the valve, defective or not,was a component of the truck’s braking system. However, establishing that anair noise was heard, does not spell that the violation was established. It isalso not in dispute that when the suspected to be defective valve was replacedthe air noise was not then detected. 

It may be tempting to believe that, by virtue of thereplacement of the valve and the air noise not then being detected, that clinchesthe Secretary’s case. But that conclusion relies upon a finding that the sourceof the air noise came, in fact, from the valve that was replaced.[21]*If the air noise was attributable to another source or reason, replacing anon-defective valve with a new non-defective valve would not be surprising.*Theissue of the source of the air noise is an evidentiary matter for the Court toresolve. That resolution in turn relies upon the Court’s analysis of thetestimony from Wright and Rolfe.

Wright testified that, in using the word “audible,” hemeant an air leak and he attributed that to a brake air valve at center of thefront tandem. He asserted that the whole time during the brake test the driverhad his foot on the brake pedal[22]with it engaged and that under those conditions there was a constant, audible,air leak. He added that when the driver released his foot off the brake, theair noise stopped. Wright also testified that he crawled up under the truck andcould feel the air leak, although he subsequently said he could *hear*where the air was coming from and he put his hand at the bottom of the valveand could also *feel* it. Tr. 51. 

Upon cross-examination, it is fair to state thatWright has no specialized training regarding air brakes, vaguely answering thatit involved “[l]eaks, stroke, canisters, the type, the know what and how thestroke would be. Listen for air leaks, valves, how things should set up.” Tr.55. His method for determining if there were any leaks on the brake system wassimilarly brief, advising that the driver would put his foot on the brake pedaland Wright would then walk around and check for the air leaks. The equipmentwould be off during the test. Tr. 56.

Asked if he did a “threshold pressure test” during theinspection, Wright did not know of such a test. After employing different termsto describe that test, sometimes referred to as a stone or pump test, Wrightanswered that such test was not done. Next, asked if he verified an aircalculation rate during his inspection, the inspector answered that he is notrequired to, that answer meaning no. When asked how he verified that there wasan air leak, the inspector repeated his earlier testimony on that subject. Askedif he, Inspector Wright, was in the truck cab at the time of the inspection,the inspector answered that he was not, offering that he crawled up under thetruck and heard the air leak and put his hand under the valve and felt the air.When he had crawled under the truck, the motor was not running; the truck wasoff at that time. 

Upon further questioning, Wright stated that the valvewas at the center of the truck at the front tandem and that the truck had twoaxles. He denied that the component he examined was a service relay. When askedif he was familiar with how the brake components operate, the inspectorinformed that one applies the brake and if continuous pressure is applied toit, the valve is not supposed to leak air. He conceded that air would beexhausted if the driver failed to keep continuous pressure on the brake. 

            Regardingthe Respondent’s contention that other supporting agency guides are used byMSHA, Wright informed they were not. As a follow up, he was asked if, duringhis MSHA training, there were references to a North American Standard CVSA, orany commercial motor vehicle inspections, Wright avoided a direct answer,responding that inspectors “are not required to have those and that it was justa reference. In a follow-up to that question, the inspector was then asked ifthere was reference material for inspections and again he avoided answering thequestion, responding that he cannot enforce those other sources. The Court,dismayed by the non-responsive answers, asked of Wright if there was suchreference material that he came into contact with during his training, to whichthe inspector acknowledged that he had. 

            Addressinghis termination of the citation, Wright advised that after the new valve wasinstalled and the brake was then applied without the engine running and helddown, there was no longer any audible air leak present at that valve, where theold valve was. However, he did not, as had done before, crawl back up under thetruck and stick his hand to the bottom of the valve, answering that he did not needto do that after the valve was replaced. Finally, regarding the subject valve,after describing what is depicted on Gov. Ex. P 10, Wright informed that theexhaust port on the valve is on the very bottom and that the location of hishand at the time he felt air exhausting from it was at the bottom.

            In itsdefense of the alleged violation, the Respondent called Mr. Marty Rolfe, whowas established as an expert in the field of braking systems and as aninspector for commercial motor vehicles. It is worth noting again that Rolfehas a certificate from the Federal Motor Carrier Safety Administration grantinghim the authority to conduct and enforce laws on any commercial motor vehiclein the United States. His qualification includes “level one” inspections, whichlevel is the ultimate level under such inspections. In significant contrast toMSHA’s expert witness, Marshall, Rolfe *did view* the cited Ford truck andhe examined the suspect valve that was replaced. He performed a level oneinspection on the cited truck, though this was done after the valve had beenreplaced. 

            Inreviewing the citation, Rolfe noted that no air loss calculation was reflectedon it. Rolfe then stated that the valve in issue was a service relay valve, buthe also had to determine the valve’s location because the inspector wrote thatit was *in the center of the front tandem.*[23]  Rolfe contended was notan accurate configuration of this truck. Rolfe asserted that the inspector’suse of “center of the front tandems” would indicate that the cited truck hadfive axles or greater, but in fact the cited truck had *three* axles andhad *one* set of tandems. As the component was newly installed, he easily locatedit on the number two axle. 

            Indetailed testimony, Rolfe then described his examination of the valve that was removedfrom the truck, and it is fair to state that he found nothing wrong with it. Ashe put it, the valve “didn't appear to be defective at all.” Tr. 135-136. Hisexam was an external review of the valve; no x-rays or disassembly of thevalve’s internal parts were conducted. The Court does not believe that theRespondent was under an obligation for its defense to conduct such anextraordinary exam of the valve, as by x-ray or disassembly, of it. 

            Beyondhis thorough examination of the valve, Rolfe took exception to the test itselfconducted by the MSHA inspector. Rolfe asserted that a proper check of thefunctionality and integrity of an airbrake system requires one to perform athreshold pressure test. This is because that test provides an air losscalculation that allows one “to determine the air pressure balance, and whetheror not the air brake system has a faulty component somewhere in it that isleaking air.” Tr. 139. Importantly, Rolfe stated that it is a “simple test thatan inspector can perform.” *Id.*As he expressed it, the test will “revealwhether or not the air brake system has an air leak within the systemsomewhere. Tr. 139-140

Finding fault with the method employed by the inspectorin concluding that the valve was defective, Rolfe maintained it is importantthat the inspector does the test on his own, because if someone sits in thedriver’s seat while the inspector walks around the truck, any fluctuation ofpressure on the treadle valve will cause exhausting of air. Merely hearing airexhaust from such a truck does not, by itself, indicate that the brake isdysfunctional, as air will exhaust if a driver lets up on the brake pedal evena little. 

Thus, Rolfe summed up that, in his view, if one wants“to verify if an air brake system has a leak of any kind, you must do athreshold pressure test and generate that air loss calculation.” *Id*. Insupport of his view of the need for the threshold pressure test to accuratelydetermine brake functionality, Rolfe identified several exhibits which wereadmitted into the record in support of his contention. These have all beendescribed, *supra*, and will not be repeated here. However, collectively,the Respondent’s exhibits indicate that MSHA has at least referred to thesources that Rolfe maintained are essential to validly determine brakefunctionality. 

It must be said that the inspector’straining for air brakes pales in comparison to Respondent’s witness, Mr. Rolfe.As noted above, when asked about his training for air brakes, Wright vaguelyresponded that it involved “[l]eaks, stroke, canisters, the type, the know whatand how the stroke would be. Listen for air leaks, valves, how things shouldset up.” Tr. 55. 

 

The inspector contended that the method heused was a common way to detect a leak on a brake and that the leak wasconstant “the whole time the driver had his foot on the brake with the pedalengaged; there was a constant air leak.” Tr. 52. Thus, he asserted that “[t]hewhole time the driver had his foot on the brake pedal with it engaged. Therewas a constant air leak, an audible air leak that I could hear and I could feelwhen I crawled up under the truck.” Tr. 40.   It is noted that the Secretarydid not call the driver, nor produce a statement from the driver attesting tothe testing procedure he employed. 

 

The inspector conceded that he never didan air calculation rate during his inspection, adding that he is not requiredto do that. Tr. 58. When asked how he verified that there was an air leak, he respondedthat “[t]he operator pushed the brake [ ] [a]nd the valve that I cited had anaudible air leak present the whole time he had the brake pedal engaged. He heldat constant pressure on it.” Tr. 59. Asked if he, Inspector Wright, was in thetruck cab at the time of the inspection, the inspector answered, “[n]o, sir. Icrawled up under the truck and heard the air leak and put my hand under thevalve and felt it.” Thus, the inspector could only surmise that the driverpushed the brake pedal down the whole time.

 

The Court acknowledges that MSHA does notrequire that an air calculation rate for enforcement of this standard. TheCourt also acknowledges that it cannot require MSHA to conduct such a test inorder to enforce a violation of 30 C.F.R. §56.14101(a)(3). However, that is adistinct issue from the need for MSHA to establish by a preponderance of theevidence that the brake valve was defective. 

 

Applying the preponderance of evidencestandard, the Court concludes that Rolfe’s testimony was more persuasive, thatis to say, more convincing, on the issue of whether the suspect valve was infact defective. Restated, the Court concludes that the Secretary did not showthat it was more probable than not that the braking system was defective. 

 

Based on the recounting of the testimony,as set forth above, the Court finds the following: As detailed above, Wright’sunderstanding of the truck and braking systems generally was far less detailedthan Rolfe’s. Being more knowledgeable about the truck’s braking system, theCourt places more credence in Rolfe’s analysis of whether the suspect valve wastruly defective. Part of this conclusion is based on the fact that Wright couldnot be sure, under the testing system he employed, that the driver keptcontinuous pressure on the brake pedal the entire time. Wright admitted that itwas essential that the driver not let up on the brake pedal during testing. Thoughthe Secretary could have deposed and/or called the driver as a witness on thisissue, it did not take either of those steps. 

 

The Court’s conclusion is also based onthe concession from the Secretary’s brake expert that there can be othersources for the sound of air on the truck. Tr. 110-112. In meeting its requiredburden of proof, the Secretary also could have, through discovery, obtained thesuspect valve, for x-ray analysis or possible disassembly, but did not availitself of this either. 

 

Last, there is the matter of Rolfe’sexamination of the alleged defective valve, an examination for which he couldnot find any outward manifestation of a defect. The Court finds that Rolfe’stestimony as to the condition of the alleged defective valve was credible. 

 

 

 

**CONCLUSION**

** **

Based upon the above, the Court concludes that theSecretary failed to establish by a preponderance of the reliable evidence thatthe cited truck’s braking system was not functional. In particular this findingmeans that for the one component cited by the Secretary as the culprit for theallegation that the braking system was not functional, namely the service relayvalve, the Secretary failed to establish under the same preponderance standardthat the valve was defective. Accordingly, it is found that the allegedviolation described in Citation No. 9428093 was notestablished. 

 

**ORDER**

** **

            Itis hereby ordered that Citation No. 9428093 is **VACATED** and thisproceeding is **DISMISSED**.

 

 

 

 

/s/ William B.Moran

William B. Moran

Administrative LawJudge

 

 

 

Distribution:

 

WinfieldW. Murray, Esq. U.S. Department of Labor, Office of the Solicitor, 61 ForsythStreet,

S.W.,Suite 3M25, Atlanta, GA 30303

murray.winfield.w@dol.gov

 

RoyT. Cornelius, CLR, U.S. Department of Labor, MSHA, 3837 S U.S. Hwy 25E,Barbourville,

KY40906

cornelius.roy@dol.gov

 

ChristopherC. Sorrows, Vulcan Construction Materials LLC, 800 Mt. Vernon Hwy NE, Suite

200,Atlanta, GA 30328 

sorrowsc@vmcmail.com

----

[1] At the conclusionof the hearing, both representatives acknowledged having a full opportunity topresent their respective sides in this litigation. Tr. 213.

[2] The inspectordescribed the test he conducted, stating, “[t]he truck was placed on anincline. The park brake was set, it would hold, you’d the release the par[k]brake and it came down the hill and he was able to stop the truck.” Tr. 40.

[3] As the notes readby the inspector were simply cumulative to his earlier testimony, they areincluded here only as a footnote. That reading reflected that 

[a]vailablefor use spare Ford L 8000 water truck, company number 34227, located underready [line]. Brakes are not being maintained in a functional condition. Whenchecked an audible air leak ... and when checked an air valve located at thecenter of the front (inaudible) has an audible air present when the foot brakeis applied, this condition can expose the driver to a brake failure hazard. ... *Thedriver did a pre-op but did not hear the air leak.* Gravity is unlikely;passed a brake test with the engine running and the brakes applied it wouldhold air pressure making an accident unlikely. I marked it lost work days. Expectedinjuries would be bruises, broken bones, person affected is the driver. I markedit low negligence; not being used since brought back to the mining site.

Tr.46-47 (emphasis added).

[4] Belatedly, anobjection was made to the question on the basis that the MSHA inspector is “nota DOT [Department of Transportation] inspector.” Tr. 58. This was overruled,with the Court expressing “it's appropriate for [the Respondent] to ask aboutthe extent of [the inspector’s] knowledge regarding the citation, and inparticular, the brake issue that’s in front of [the Court], so that objectionis overruled.” *Id.*

 

[5] The Court thenadvised the inspector that he was simply to answer the question posed, withoutadding a comment, such as whether he was required to perform such a test. TheCourt explained to him that his representative could follow-up on that issue,if he wished, during redirect. Tr. 58.

[6] In that respect,speaking to his experience, he stated that it included, “[o]n haulage trucks,yes, both off highway and on highway type trucks that are used on line sites. Then,essentially involved in accident investigations. ... we assessed enforcementpersonnel in fatal and non-fatal accidents, if they request our systems. I'vebeen doing those type[s] of accidents for almost my entire career.” Tr. 71.

 

[7] Perhaps becausehe is not an attorney, the CLR apparently did not understand that, as he wasnot a witness, he may not identify or describe the contents of an exhibit, atleast for evidentiary purposes. In the Court’s view, when the governmentemploys non-attorney representative it diminishes the importance of proceedingsinvolving the safety and health of our Nation’s miners. 

[8] The witness wentinto some detail about the exhibit, but the value of this information isdubious to the issue before the Court, namely establishing that the cited watertruck was not being maintained in a functional condition. Thus the witness’stestimony describing the piping diagram, as he expressed it, “just shows thelocation and some of their valves and how they're used in the system. There isa quick release valve in this and ... the exhibit [provides] an example of howit's used in the braking system or a typical use of it in the braking system.” Thewitness then went on describing how the valves are used in the braking systemdepicted in Gov. Ex. P 13. Tr. 87. While it may be viewed as all veryinteresting information, the Court finds that it is not of value to the issuein this case. 

[9] For example, whenwitness Wright was asked “where does the air go after the treadle valve isdepressurized, where does the air go, he responded “[t]he air from the servicebrake chambers flows back through the quick release out to atmosphere. The airfrom the quick release back to the foot pedal flows out of the foot pedalexhaust.” Tr. 99. Asked if he agreed that the service relay valve exhaust wouldhelp regulate the pressure going into the diaphragm to keep it from bursting,the witness asked for the question to be repeated. Tr. 99. Reframed, thewitness was asked the purpose of the service relay valve for the cited truck. TheCourt was surprised by the inability to answer the basic question, but thewitness expressed that he did not understand because the question referred totwo separate types of valves. Tr. 99-100. 

[10] Exploring thevalue of Gov. Ex. 13, the Court inquired of Mr. Marshall, if he knew “whetherthe cited truck here, the Ford L 8000 water truck ...whether that truck has theMeritor WABCO arrangement in that truck physically?” Tr. 105. The Courtclarified that it was asking if the cited truck had that Meritor WABCO brand. Thewitness answered he did not know. Tr. 105. Thus, the witness then agreed thathis testimony was “speaking generally about how valves operate commonly inequipment such as this. He admitted to not knowing the exact system in thecited truck, but he added, “[t]he setup as far as the quick release around theservice brake chambers is universal; similar.” *Id.*The Court theninquired whether Marshall had a diagram of the cited truck and noting that theexhibit related to a Meritor WABCO and that he did not have a schematic for thecited truck. Marshall agreed he had no schematic diagram for the cited truck,while repeating that “the basic systems are somewhat standardized.” Tr. 106.

 

[11] This testimonytoo was all very interesting but of no moment to the issue for disposition. Thusthe response of witness Marshall is repeated here but only for the sake ofcompleteness in setting forth the record. He responded that 

at least in the service brakeside; the service relay valve is intended to apply the brakes quicker than whatyou would have if you had a direct connection versus the quick release isintended to release the brakes quicker. So, the service relay valve is used,again, similar to the quick release valve which is closer to where the brakeends are near the axles. The control valve sends a signal to the relay valve inorder to apply the brakes, at least in the service brake system. So, the sourceof air which is supplying the service relay valve is closer to the relay valve.So, the air that's being pushed out to the service brakes downstream of theservice brake relay valve is being supplied by a tank that's closer to theservice relay valve. It doesn't have to go through the foot valve 10 in thiscase, all the way down to the service brake chambers. The tank air is beingsupplied to the relay valve. So, the tank air is being supplied from the relayvalve to the chambers versus through the foot pedal. So, there is a distinctdifference between what I consider to be a service relay valve and quickrelease valve.

Tr. 109. Askingfor clarification, the CLR then asked if “that service release valve issomething that is used to cut the distance which would actually cut the timethat it takes for those brakes to actually engage.” *Id.*The witnessresponded that the valve “applies the brakes quicker by shortening the lengthof travel that the air has to go through the lines.” *Id.*

[12] As a follow-upthe Court asked, it if is true that “even some air hissing noises may be normalor expected, not a sign of a defect?” Marshall responded, 

Again, getting back to when theservice brake is applied, and you have an air leak in the service brake system,that's an issue. You can have other leaks but that doesn't mean that those aregood leaks. I mean, under normal conditions you have air releasing cyclically,as far as from the compressor, in the engine compartment. There's air dryers onthe front of the truck that cycle periodically. But those aren't necessarilynear where the valves cited in the citation was located according to the notesthat I read and possibly the citation itself.

Tr.112. Thus, the witness identified two other sources for leaks, such as thecompressor *in the engine compartment* and air dryers on the front of thetruck. Tr. 112. The Court’s point is that the witness conceded there can beother sources of air hissing and, perhaps of equal importance, Marshall’stestimony was in the nature of generic information about braking system valves.

[13] Rolfe noted thatin slang, the test may be called a “stop test,” a “brake pump down test,” orsimply a “brake test.” Tr 139.

 

[14] Respondent’s Ex.5A, a Commission decision involving *Daanen & Janssen*, Inc., 20FMSHRC 189 (Mar. 1998) is discussed in this decision.

[15] Frankly, theCourt did not initially grasp the applicability of using an “out of serviceguideline” but Rolfe dispelled the Court’s misapprehension explaining that 

[t]he out of service guideline ...is when you place a vehicle out of service, what violations -- you determinewhat violation or defect that you're finding. And then you go to the out ofservice criteria and see if the CVSA says that that condition is not a service.All right, if you'll look, subsection K under the break -- under out ofservice, it talks about air loss, right. We need to calculate air loss, right? Justbecause you do find an exhausting of air from a brake system does not put anair brake system out of service. And as a qualified inspector, if you aresearching down some sort of air leak, you need to be qualified enough todetermine whether that is a defect or if it's an exhausting of air.

Tr. 165. Thus,Rolfe cleared up the Court’s too literal use of the term “out of serviceguideline” as it is meant to determine *when* a vehicle is to be removedfrom service. As Rolfe put it, the “criteria provides [ ] guidance on *when*an air brake system would be considered non-functioning [and therefore markedto be put] out of service.” *Id.*Consequently, the Court’smisunderstanding of the term used – out of service guideline – was cleared upand therefore there is no *in service* guideline. 

[16] Referencing thatexhibit, Rolfe addressed the purpose, the design, the functionality of thisrelay valve and why it's important on these vehicles. In that regard, he stated

[t]he service relay valve is avery integral safety function within an air brake system. Your relay valve,that you'll usually find on your rear drive axles has different functions. Oneof the functions is it provides air pressure balance between the right side andthe left side of your vehicle. And these functions are in no particular orderof importance. Another function of the service relay valves is it reduces oreliminates the air travel lag from your air reservoir tanks to the rear axlesor rear brake systems of an air brake system. Think of it like this,commercial, I mean, a tractor trailer, the air tank reservoirs are upunderneath the driver side and passenger side door. And you've got 18 feet oftractor trailer, then you've got 53 feet of trailer behind you. So, that's along way for air to travel all the way back to a rear tandem set in order toactuate brakes. We don't need brakes taking a long time to actuate because aswe know from everyone driving, there are times where you may have to brakerather suddenly. So, a service relay valve moved to the rear sets of tandemswill actually allow the air to be already brought back to the rear tandems. So,when you actuate your brake pedal, the air is already back there and iteliminates the air travel lag. So, your brakes actuate a lot faster. That'swhat we want. Now, the service relay valve provides another function too. Itprovides exhausting of the air brake system in several instances. Again, if yousat next to a commercial motor vehicle, it'll light when the driver releasespressure on the panel or whatever you'll hear air exhausting. Now, the aircomes from numerous different places whether it be the brake chamber. But italso exhausts as you can see on the bottom of the exhibit. These all start atthe bottom of the service relay valve. Now, what that does is when you'reletting up on the brake pedal, it allows the air to exhaust from the air brakesystem and it disengages your brakes. An air brake system doesn't run inreverse. And so we have to have a way to release the air from it when we'reready to move. ... Also, that exhaust port, if you look towards the top under thecontrol ports, you can have certain instances where you can over pressurize thebrake system.  If a driver is driving down the road and a child runs out infront of him and he stands on the brake pedal, he's over pressurizing thatsystem, while instead of the air rushing to the diaphragms of the brake chamberand bursting them like a balloon, the service relay valves allow the air to exhaust;keeping the air system from essentially busting like a balloon. So, you'll haveexhausting effects. In this case that we're talking about, Inspector Wright hadour operator up in the driver seat, and he had the pedal engaged. So, again,any differentiation of pressure on that panel is going to put that servicerelay valve into operation and part of this operation is to exhaust air out ofthe system. Now, not being a qualified air brake Inspector, you can veryquickly make a determination that you've located a defect rather than properexhausting from the component as designed. 

Tr. 171-174. Similarly,Respondent’s Exhibits 7 B, 7 C, and 7 D, while also admitted into the record,are not of particular value to the issue to be resolved.

 

[17] Althoughconsidered of negligible value, Ex. 7 D was admitted. Rolfe referred to ahighlighted portion at that exhibit, at page 43, which notes 

depending on the level ofservice brake pressure, compressed air from the spring compressed chambers willbe evacuated into the atmosphere through the outlet, E and vent 3 until thepressure in the chamber B is greater once again and the piston closes on theoutlet, a neutral position has been reached. 

Tr. 178. Rolfeadded that he believed that section is referring to the function of a servicerelay as an air pressure balance, which protects the system. Tr. 179.

 

[18] Syntactically,the question and answer were opaque, with the question posed “And the truck wasnot running when you heard that?” To which the inspector answered “[n]o sir.” Tr.202. The Court interpreted the question and answer as reflected above. 

[19] In reaching itsconclusion that each component must be functional, the Commission also notedthat:

the Secretary has consistentlyapplied the interpretation embodied in the citation. The *PPM*[*ProgramPolicy Manual*], which the Commission long has recognized as evidence ofMSHA’s policies and practices (*Dolese Bros.,* 16 FMSHRC at 693 n.4),succinctly states the interpretation of the braking standard advanced here bythe Secretary. The PPM provides: “Standard [56].14101(a)(3) should be cited ifa component or portion of any braking system on the equipment is not maintainedin functional condition even though the braking system is in compliance with(1) and (2) above.” IV *PPM*, Parts 56/57, at 55-55a (1991).

*Id.*at194. 

 

[20] In discussing theburden of proof, the Commission has taken note of use of that term under thecommon law, remarking that:

At common law, preponderance ofthe evidence ‘means that amount of credible evidence which is most persuasiveon a particular point.’ *Herman & MacLean v.Huddleston,* 459U.S. 375, 390 (1983). The preponderance of the evidence standard hasalso been defined at common law as ‘[t]he greater weight of evidence, evidencewhich is more convincing than the evidence which is proffered in opposition toit.’ *St. Paul Fire & MarineInsurance Company v. U.S.,* 6 F.3d 763, 769 (Fed. Cir. 1993), *reh. denied.* Ingeneral, preponderance of the evidence is such evidence as, when weighedagainst that opposed to it, has the more convincing force that something is morelikely so than not so. *Merzon v. County of Suffolk,* 767 F. Supp. 432, 444 - 445(E.D. N.Y. 1991); *see* Standard Civil Jury Instruction for theDistrict of Columbia § 2-8 (revised ed. 1985); *see also,**Bazemore v. Friday* 478 U.S. 385, 400 (1986);*Smith v. U.S.,* 726 F.2d 428, 430 (8th Cir.1984); *Nissho-Iwai Co., Ltd. v. M/TStolt Lion,* 719F.2d 34, 38 (2nd Cir. 1983); and *Hopkins v. Price Waterhouse,* 737 F. Supp. 1202, 1204 n. 3 (D.D.C. 1990). The preponderance standard is satisfied when the partybearing the burden has shown that “the existence of a fact is more probablethan its non-existence....” *Concrete Pipe and Products ofCalifornia, Inc. v. Construction Laborers Pension Trust for SouthernCalifornia,* 508U.S. 602 at ___, 113 S. Ct. 2264, 2279 (1993) (citations omitted). 

*In re: Contests ofRespirable Dust Sample Alteration Citations Keystone Coal Mining Corp.*17 FMSHRC 1883,1897 (Dec. 1995) (Commissioner Marks, dissenting). 

*PlateauMining*, 28 FMSHRC 501 (Aug. 2006) also speaks to the preponderance standardand the substantial evidence test. 

The Mine Act imposes on theSecretary the burden of proving each alleged violation by a preponderance ofthe credible evidence.” *In re: Contests of Respirable Dust Sample AlterationCitations*, 17 FMSHRC 1819, 1878 (Nov. 1995), *aff’d sub nom. Sec’y of**Labor v. Keystone Coal MiningCorp*., 151 F.3d1096 (D.C. Cir. 1998) (quoting*Garden Creek Pocahontas Co.*,11 FMSHRC 2148, 2152 (Nov. 1989). “The preponderance standard, in general, meansproof that something is more likely so than not so.” *In re: Contests ofRespirable Dust*, 17 FMSHRC**at 1838. Further, the occurrence of anignition is not, in and of itself, evidentiary proof of an inadequate bleedersystem. *Consolidation Coal Co.*, 20 FMSHRC 227, 240 (Mar. 1998) (Comm’rsRiley and Verheggen) (citing *Mar-Land Indus. Contractor, Inc.*, 14 FMSHRC754, 758 (May 1992); *Old Ben Coal Co.*, 4 FMSHRC 1800, 1804 n.4 (Oct.1982)). When reviewing an administrative law judge’s factual determinations,the Commission is bound by the terms of the Mine Act to apply the substantialevidence test. 30 U.S.C. § 823(d)(2) (A)(ii)(I).“Substantial evidence” means “‘such relevant evidence as a reasonable mindmight accept as adequate to support [the judge’s] conclusion.”’ *Rochester& Pittsburgh Coal Co.*, 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting *Consolidated Edison Co. v. NLRB*, 305 U.S. 197, 229 (1938)).In reviewing the whole record, an appellate tribunal must consider anything inthe record that “fairly detracts” from the weight of the evidence that supportsa challenged finding. *Midwest Material Co*., 19 FMSHRC 30, 34 n.5 (Jan.1997) (quoting *Universal Camera Corp. v. NLRB*, 340 U.S. 474, 488 (1951)).Further, the Commission has held that “the substantial evidence standard may bemet by reasonable inferences drawn from indirect evidence.” *Mid-ContinentRes., Inc.*, 6 FMSHRC 1132, 1138 (May 1984). The Commission has emphasizedthat inferences drawn by the judge are “permissible provided they areinherently reasonable and there is a logical and rational connection betweenthe evidentiary facts and the ultimate fact inferred*.*

*Plateau Mining*, 28 FMSHRC 501,524 (Aug. 2006) (separate opinion of Chairman Duffy and Commissioner Suboleski)

 

 

[21] As discussed *infra*,a second issue is whether it was established that constant pressure was in factbeing applied to the brake pedal during the whole time of the test.   

 

[22] Wright insisted,several times, that the truck driver had his foot on the brake pedal the wholetime and that the driver kept the brakes engaged. Tr. 40, 42-43, 52.

[23] Rolfe wascorrect. The citation does state “there is a brake air valve *at center offront tandem* that has an audible present.” Citation No. 9428093 (emphasisadded).