**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

Office of AdministrativeLaw Judges

721 19thStreet, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX303-844-5268

 

 

 

SECRETARYOF LABOR                            |           CIVIL PENALTY PROCEEDING

 MINE SAFETY ANDHEALTH                   |           

 ADMINISTRATION(MSHA)                      |           Docket No. SE 2020-0087-M

                        Petitioner                                |           A.C.No. 01-03143-504754

                                                                        |           

            v.                                                         |           

                                                                        |           

VULCANCONSTRUCTION                        |           

 MATERIALS LLC,                                       |           

                        Respondent                             |           SouthRussellville Quarry

 

 

**DECISION**

 

 

Appearances:              WinfieldWard Murray, Esq., U.S. Department of Labor, Office of the

Solicitor,Atlanta, Georgia for Petitioner;

ChrisSorrows, Vulcan Construction Materials LLC, Birmingham,

Alabama,for Respondent.

 

Before:                                    JudgeManning

** **

**I. INTRODUCTION**

 

This case isbefore me on a petition for assessment of civil penalty filed by the Secretaryof Labor, acting through the Mine Safety and Health Administration (“MSHA”),against Vulcan Construction Materials LLC (“Vulcan”) pursuant to sections 105and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and820 (the “Mine Act”). The parties presented testimony and documentary evidenceat a video conference hearing and filed post-hearing briefs. A single 104(a)citation with a total proposed penalty of $121.00 was adjudicated at thehearing. For reasons set forth below, I vacate the single citation at issue. 

 

Although I havenot included a detailed summary of all evidence or each argument raised, I havefully considered all the evidence and arguments. Further, my findings arerestricted to the particular facts of this case and carry no precedential valuebeyond the evidence presented.

** **

**II. DISCUSSIONWITH FINDINGS OF FACT**

**AND CONCLUSIONS OFLAW**

 

Vulcan operates the South RussellvilleQuarry (the “mine”), a surface limestone quarry in Franklin County, Alabama. On September 18,2019, MSHA Inspector Tommy R. Wright conducted a routine inspection of the mine.[1]Tr. 18. At the time of the inspection mine personnel were engaged in theprocess of stripping back material in order to have more rock to mine. Tr. 19. Trucksand other mobile equipment were being used during the stripping process. 

 

At some point during the day Wrightinspected the air brake system on a Mack water truck (the “truck” or the “watertruck”).[2]Tr. 20. Wright began the inspection by first having the driver move the truckonto a ramp, stop the truck with the service brake, and then set the parkingbrake to show that the brake would hold. Tr. 32. Both the service brake andparking brake held the truck on the ramp. Tr. 32, 68. 

 

Wright then had the driver move the truckto flat ground in order to test the brake system for air leaks. Tr. 32. Afterthe wheels were scotched and the truck turned off, Wright instructed the driverto place his foot on the brake pedal. Tr. 32, 54-55. Wright then walked aroundthe truck listening for air leaks. Tr. 33. After hearing the sound of airescaping from somewhere under the truck, Wright got down on his hands and knees,crawled toward the sound, and eventually used his finger to feel air coming outof a small hole on the brake chamber for the wheel on the right side of therear most axle of the truck.[3]Tr. 33-34, 53-57, 63. According to Wright, the air being expelled from the holewas “continuous” and persisted the entire time the driver “pushed the brakepedal down and had it engaged.” Tr. 34-35, 54, 61. Wright agreed that thealleged leak did not start and stop as if the brakes were being pumped and “wouldgo away” when the driver took his foot off the service brake pedal. Tr. 26, 34,68. According to Wright, the chamber never sealed as it should have when thepedal was engaged. Tr. 66, 68-69.

On cross-examination Wright conceded that,although he instructed the driver to put constant and consistent pressure onthe brake pedal, he could not see the driver engaging the pedal during the test.Tr. 54-55. 

 

Wright testified that occasionally dirtaccumulates around the diaphragm in air brake chambers. Tr. 35. As a result, hegenerally gives drivers an opportunity to pump the service brake pedal two tothree times to expel any contaminates that may be in the chamber. Tr. 34-35.Although Wright testified that he gave the driver an opportunity to pump thebrakes of the water truck, it is unclear whether the driver did so in thisinstance. Tr. 34-35. Nevertheless, according to Wright the alleged leak persisted,and the chamber did not seal. Tr. 35. In his experience, leaks only get worseover time. Tr. 34-35.

 

At hearing, when shown a photograph of thesubject brake chamber, Wright initially could not identify the hole from whichair was escaping. Tr. 56, 58; Ex. P-2. However, Wright ultimately identifiedthe “weep hole” on the brake chamber as the location from which air was being expelledbut could not explain the purpose of the hole. Tr. 60, 66. Wright explainedthat “usually in a situation like that, [i.e., when air is coming out of a weephole] it’s the diaphragm that’s busted or damaged.” Tr. 60-61. 

 

Based on what he saw and heard, Wrightissued Citation No. 9428135 to Vulcan for an alleged violation of section56.14101(a)(3), which requires that “[a]ll braking systems installed on theequipment shall be maintained in functional condition.” 30 C.F.R. §56.14101(a)(3). Wright testified that the brake system was not being maintainedin a functional condition because “the whole time that [the driver] had thefoot brake pushed down, there was an audible air leak at this brake chamber.”[4]Tr. 20-23,26, 36. Wright testified that he relied on MSHA’s Program PolicyManual regarding section 56.14101(a)(3) when issuing the citation. Tr. 25; Ex.R-16.

 

**TheSecretary’s Expert Witness**

 

The Secretary called Jonathan Hall as anexpert witness. Hall is a mechanical engineer in MSHA’s Approval andCertification Center, which is part of the agency’s Technical Support Division.[5]Tr. 71. In addition to providing technical support to MSHA field personnel,Hall conducts accident investigations. Tr. 72. He has conducted approximately adozen accident investigations involving trucks with air brake systems.[6]Tr. 75. Hall testified that he is familiar with air brake systems like the oneon the cited truck and has received on the job training for examining air brakesystems and identifying defects.[7]Tr. 75, 92. 

 

Hall, both in his expert report and athearing, provided an explanation of air brake system components and how they work.[8]Tr. 76; Ex. P-9. According to Hall each wheel has an air chamber or chambers,push rod, slack adjuster, S-Cam, brake pads, and brake drum. Tr. 78. Airchambers are canisters made up of two pieces of metal clamped together with anelastomeric rubberlike diaphragm inside. Tr. 78. In a dual air chamber system,like the one at issue in this case, the canister includes two chambers, one ofwhich controls the parking brake while the other controls the service brake. Eachchamber has its own diaphragm. Tr. 79. Air put into the parking brake chambermoves the diaphragm from one side of the chamber to the other in order torelease the parking brake. Tr. 79-80. Air put into the service brake chambersimilarly moves the service brake diaphragm from one side of the chamber to theother, which in turn causes the push rod to move. Tr. 78. The push rod rotatesthe slack adjuster and S-Cam and presses the brake pads against the inside ofthe brake drum. Tr. 78, 85. The brake pads pushing against the drum createfriction and slow the rotating wheel. Tr. 78, 85.

 

Hall explained that there are threepossible sources for air leaks in an air chamber like the one at issue in thiscase. Tr. 80. First, air can leak from where the metal pieces of the chamberare clamped together. Tr. 80. Second, air can leak from the hoses that provide pressurizedair to the chamber. Tr. 81-82. Third, air can leak through a damaged diaphragm.Tr. 82. On cross-examination Hall explained that, generally, one determines ifthere is a leak by listening for it. Tr. 96. While other tests can be used to findsmaller leaks, the “rule of thumb” is that if you can hear a leak then there issome sort of problem within the braking system. Tr. 96, 113.

Hall was not present at the time thecitation was issued and did not examine the equipment. However, he reviewed thecitation and was present during Wright’s testimony. Based on the data provided,Hall believed the most likely source of the alleged leak was a damageddiaphragm. Tr. 81-82, 86. Hall explained that diaphragms move every time thebrake is applied and released. Tr. 82. Diaphragms wear out over time andeventually start to develop tears. Tr. 82, 89. In addition, dirt that gets intothe chamber through the weep hole can cause an abrasion and, over time, createa hole or tear in the diaphragm. Tr. 82. 

 

Hall explained that the weep hole allowsair to exit the chamber when the diaphragm moves from one side to the other.[9]Tr. 83. Each time the brakes are applied or released the diaphragm moves fromone side of the chamber to the other and there should be a brief, momentarymovement of air through the weep hole. Tr. 82, 109, 111. When the brake isapplied the chamber becomes pressurized, the diaphragm moves from one side tothe other and air is expelled from the weep hole. Tr. 83, 109. When the brakeis released air travels the other way through the weep hole. Tr. 83, 109-110. Oncross-examination Hall agreed that any fluctuation in the treadleactuated by the brake pedal, will cause the system to exhaust air. Tr. 112,114. 

 

According to Hall, air brake systems aredesigned and intended to be airtight and there should never be a continuousrelease of air from an air brake chamber or air brake system. Tr. 83, 88, 107. Airbrake systems are “designed to work with a certain given air pressure at acertain amount of energy.” Tr. 80, 83, 88. An air leak removes energy from thesystem and prevents it from working the way it was designed and intended towork. Tr. 80, 83, 88-89. Here, according to Hall, the continuous air leak was adefect, or shortcoming of the air brake system. Tr. 86. Continuous air leaks donot go away and, in Hall’s opinion, only get worse over time. Tr. 87, 89-90.

 

**Vulcan’sExpert Witness**

 

Marty Rolfe was Vulcan’s sole witness andtestified as an expert. Rolfe has a degree in occupational safety and healthfrom Columbia Southern University, currently works in Vulcan’s safety andhealth department, and serves as the DOT representative for the company’ssoutheast division.[10]Tr. 118-119; Ex. R-24 p. 312. His responsibilities include, among other things,maintaining Vulcan’s commercial motor vehicle (“CMV”) inspection schedule andregulatory qualification files for all company personnel who conduct air brakeinspections and conducting risk investigations on vehicles that travel betweenmine sites. Tr. 119. Rolfe has 19 years of experience as a certified CMV airbrake inspector[11]and specializes in the application and enforcement of regulations under Title49 C.F.R. Parts 40 and 300-399.[12]

 

Rolfe testified that a threshold pressuretest is the first step of any air brake inspection. Tr. 126, 134. The thresholdpressure test is an industry standard test which enables an air brake inspectorto calculate an air loss rate for the brake system.[13]Tr. 126, 135. The air loss rate is then compared to an allowable air loss rate todetermine if the air system is functioning or the vehicle needs to be taken outof service.[14]Tr. 126-127, 134, 136. According to Rolfe, the threshold pressure testdetermines if there is a leak you need to find and correct. Tr. 126-127.

 

While Rolfe agreed that there should notbe a continuous air leak from a brake chamber while the brake pedal is engaged,he explained that what sounds like an air leak may be the normal operation ofthe air brake system rather than the result of a defective leak. Tr. 130,154-155. Air systems are not completely airtight and have multiple exhaustports and ways to vent air in order to protect the system and ensure properoperation. Tr. 130, 138-139. According to Rolfe, if a leak is audible then thesystem will fail the threshold pressure test. Tr. 135. Moreover, the thresholdpressure test will tell you if a leak exists or if the system is still settlingand exhausting by design. Tr. 144. 

 

Although Rolfe was not present at the timeWright inspected the truck and did not witness the alleged leak, he did have anopportunity to inspect the truck at issue.[15]Tr. 136, 153-154. Rolfe agreed that the alleged defect was at the weep hole.Tr. 133-134. He explained that a weep hole allows air to escape from a brakechamber when the diaphragm moves forward, thereby preventing pressure buildup thatwould prevent necessary movement of the diaphragm. Tr. 138-140, 142. WhileRolfe generally agreed with Hall’s testimony regarding how air brake systemsand air brake chambers work,[16]he took issue with Hall’s explanation of how long air may vent from a weephole. Tr. 134. Specifically, he stated that “because you can’t see thediaphragm - it’s an internal piece of a component ... - you can’t determine howmuch air or how long it’s going to vent. ... You have to allow for the settlingof all those components because you don't know how fast those diaphragms aregoing to move forward.” Tr. 134. Further, he explained that any fluctuation inthe treadle valve will release air from the weep hole. Tr. 140. 

 

Rolfe opined that, had the diaphragm been“busted” as Wright alleged, there would have been no question about it and,given that there was 100 to 120 PSI on the pressurized side of the diaphragm,there would have been a “trumpet” sound coming from the chamber, which therewas not. Tr. 143-144; Ex. R-5. p. 23.

 

CitationNo. 9428135

 

Citation No. 9428135, issued under section104(a) of the Mine Act on September 18, 2019, alleges a violation of Section 56.14101(a)(3)of the Secretary’s safety standards. The Condition or Practice section of the citationstates as follows:

 

The braking systemon the in use Mack water truck, Co. 66039, located at water tank fill up, isnot being maintained in a functional condition. When tested the right reartandem brake chamber has an audible air leak present when the brake paddle isengaged. The truck is used multiple times throughout the day to water minesroads. Employees working in and around this equipment were exposed to thepossibility of injury, if the brakes were to fail. The truck passed a braketest, making the chance of an accident unlikely.

 

Inspector Tommy Wright determined that aninjury was unlikely to be sustained, but that if an injury were sustained it couldreasonably be expected to result in lost workdays or restricted duty. Wright furtherdetermined that the cited condition was not S&S, affected one person, andwas the result of Respondent’s low negligence. The Secretary proposed a penaltyof $121.00 for this alleged violation. Vulcan replaced the brake chamber toabate the citation.

 

**Fact of Violation**

 

*Brief Summary ofthe Parties’ Arguments*

 

The Secretary argues that Vulcan violated thecited standard because an audible air leak from the brake chamber indicatedthat the air brake system was not being maintained in a functional condition. Sec’yBr. 9. The Secretary cites the Commission’s decision in *Daanen v. Janssen*,20 FMSHRC 189 (Mar. 1998) and argues that a violation of 56.14103(a)(3) existswhen a component of a braking system is not maintained in the functionalcondition. Sec’y Br. 12-14. The brake chamber was a component of the brakingsystem. According to the Secretary the continuous air leak from the chamberindicated a defect in the chamber and that the brake system was not beingmaintained in a functional condition. *Id*. at 9-10.

 

Vulcan asserts that the citation should bevacated because the issuing inspector lacked the knowledge, training and educationnecessary to conduct a proper air brake inspection and failed to conduct aproper inspection in this instance.[17]Vulcan Br. 1-8. Moreover, Respondent argues that air brake systems are designedto exhaust air from the location where the alleged leak was observed and thatthe test, as administered by the inspector, did not establish that there was adefect in the system. Vulcan Br. 9-10. 

 

*Discussion*

 

Section 56.14101(a)(3) requires that “[a]llbraking systems installed on the equipment shall be maintained in functionalcondition.” 30 C.F.R. § 56.14101(a)(3). The Commission’s decision in *Daanen& Janssen*, 20 FMSHRC 189 (Mar. 1998) is controlling in cases involvingcitations issued for alleged violations of section 56.14101(a)(3). 

 

In *Daanen* the Commission concludedthat section 56.14103(a)(3) was ambiguous because it supported “at least twoplausible and divergent interpretations.”[18]*Id*. at 192. There the Secretary submitted an interpretation of thestandard that “mandates a finding of violation when a component of the brakingsystem is not maintained in functional condition, regardless whether thebraking system is capable of stopping and holding the vehicle.” *Id*. Infinding that the Secretary’s interpretation was reasonable and entitled todeference the Commission cited four specific reasons. 

 

First, the Commission found that the Secretary’sinterpretation was consistent with the language of the standard. The standard’suse of the term “system” contemplated an “interrelationship of componentparts.” *Id*. at 193. As a result, the Commission determined that for abraking system “to be considered functional, each of its component parts mustbe functional.” *Id*. 

 

Second, the Secretary’s interpretation wasconsistent with the Mine Act’s goal of promoting miner safety. *Id*. TheCommission reasoned that “[b]y allowing a citation to issue before the entirebraking system fails, the Secretary's interpretation is preventive and seeks tocure equipment defects before serious accident occur.” *Id*. 

 

Third, the Commission found that theSecretary had consistently applied the proffered interpretation. *Id*. at194. The Secretary’s Program Policy Manual explicitly states that a citationshould be issued under the standard “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” subsections (1) and (2) of56.14101(a). *Id*. 

 

Finally, the Commission stated that theSecretary’s “interpretation gives independent meaning to each part: subsection(1) is a [service brake] performance standard, while subsection (3) is amaintenance standard.” *Id*. The Commission noted that if a citation couldonly be issued under subsection (3) when the braking system failed to stop andhold equipment, then there would be no difference between the two subsections. *Id*.

 

Consistent with the Commission’s holdingin *Daanen*, I find that in order to establish a violation of section56.14101(a)(3) the Secretary must prove that a component of the air brakesystem on the water truck was not maintained in a functional condition,regardless whether the braking system was capable of stopping and holding thevehicle.[19],[20]

 

For reasons set forth below I find that whilethe air brake chamber on the water truck is a component of the braking system,the Secretary failed to prove by a preponderance of the evidence[21]that the chamber and, in turn, the brake system, was not being maintained in afunctional condition.

 

I find that theair brake chamber is a critical component of the braking system on the watertruck, which is clearly self-propelled mobile equipment. This fact was notdisputed by the parties. Consequently, the air brake chamber must be maintainedin functional condition for the truck’s braking system to be consideredfunctional. *See**Daanen* at 193. 

 

I find that the Secretary failed toestablish that the air brake chamber was not being maintained in a functionalcondition. I credit Wright’s testimony that he heard and felt air beingexpelled from the weep hole. However, I find that the Secretary failed to proveby a preponderance of the evidence that the air brake chamber and, in turn, theair brake system, was not being maintained in a functional conduction. Inreaching this conclusion I have relied on four critical pieces of evidence. 

 

 First, both expert witnesses agreed that aweep hole’s purpose is to exhaust air from the air brake chamber during normaloperation. Accordingly, observing air being expelled from a weep hole does notby itself establish that a chamber is not being maintained in a functionalcondition.[22]In order to prove a violation in this instance the Secretary also mustestablish that a defect, or shortcoming, in the chamber was the source of theair Wright observed being expelled from the weep hole. 

 

Second, neither of the Secretary’switnesses could identify the source of the air being expelled from the weephole with any level of the certainty. While both Wright and Hall posited that adamaged diaphragm was the likely source of the alleged leak, their testimony onthis point was almost entirely speculative. Neither Wright nor Hall viewed thediaphragm or saw any damage to the diaphragm.[23]Rather, in reaching their conclusion that the diaphragm was likely damaged,they relied almost exclusively on Wright’s observation that there was a “continuous”release of air from the weep hole, which, according to them, indicated a leak. However,Wright offered very little context as to what he meant by stating that therelease was “continuous.”[24]While Wright and Hall testified that airshould exhaust from the weep hole for only a brief moment when the brake isdepressed before the diaphragm seals, Rolfe offered testimony disputing thatfact. According to Rolfe, who unlike Secretary’s expert had an opportunity toexamine the truck after the citation issued, it is impossible to determine howlong air will vent from a weep hole. He explained that air brake chamberdiaphragms are internal components that cannot be seen. As a result, it isimpossible to tell how fast a diaphragm is moving or how long air will ventfrom a weep hole. I find Rolfe’s testimony on this issue to be both compellingand credible. While his testimony does not conclusively establish that the airbrake chamber was being maintained in a functional condition, it does provide acredible alternative explanation for why the chamber did not seal as fast asWright may have expected.

 

Third, both experts agreed that anyfluctuation in the brake pedal could release air from the system.[25]Therefore it is critical that there be no fluctuation of the brake pedal duringa test which seeks to discover whether there are leaks in the air brake system.Otherwise air being properly expelled from the system could be mistaken for aleak. For reasons that follow, I find that the Secretary failed to establishthat during the test administered by Wright there was no fluctuation in the brakepedal that controls the treadle valve.

 

Fourth, it is unclear how the truck driverdepressed the service brake pedal during the test. While I credit Wright’stestimony that he instructed the driver to maintain constant and consistentpressure on the brake pedal during the test, it is unclear whether the brakewas applied in such a way. Wright agreed that he was unable to observe thedriver during the test. Moreover, the record is devoid of evidence that afterhe heard air being expelled from the weep hole Wright asked the driver whetherhe continuously depressed the pedal as instructed.[26]Given that any fluctuation in the brake pedal would send air through thetreadle valve to the brake chamber, it was critical that the test administeredby Wright be carried out in a very specific way in order to ensure that airbeing correctly expelled from the system would not be mistaken for a leak. Here,I find that the Secretary’s evidence is lacking with respect to how the brake pedalwas depressed during the test and the evidence suggests that another plausiblealternative explanation exists for why air was being expelled from the weephole. 

 

Given the above analysis, I find that the Secretaryfailed to establish by a preponderance of the evidence that the air expelledfrom the weep hole indicated that the brake chamber and, in turn, the brakesystem, was not being maintained in a functional condition. Rolfe’s testimonyregarding the inability to determine how long it may take for a properlyfunctioning chamber to exhaust air from weep hole, the lack of more conclusiveevidence regarding the source of the leak, and the failure to ensure that the testwas properly administered by Wright all prevent me from making the inferentialjump the Secretary’s evidence requires to uphold the citation. 

 

It is important that the parties recognizethat that I am not finding that Respondent was in compliance with the citedstandard. Rather, I find only that the Secretary failed to meet his burden ofestablishing the violation by a preponderance of the evidence. In reaching thisconclusion I have not based my decision on the inspector’s alleged lack oftraining to conduct DOT inspections of commercial motor vehicles or his allegedfailure to conduct the brake tests suggested by Vulcan. Consequently, thecitation is vacated.

 

**III. ORDER**

** **

For reasons setforth above, Citation No. 9428135 is **VACATED**.

 

** **

** **

 

/s/Richard W. Manning

Richard W. Manning

Administrative LawJudge

 

Distribution:

 

WinfieldWard Murray, Esq., United States Department of Labor, Office of the Solicitor,61 Forsyth Street, Suite 7T10, Atlanta, Georgia 30303 Email: (Murray.winfield.w@dol.gov)

BrandonE. Russell, Conference and Litigation Representative, Mine Safety and HealthAdministration, 1030 London Drive, Suite 400, Birmingham, Alabama 35211 Email:(russell.brandon@dol.gov)

 

ChrisSorrows and Autumn Graves, Vulcan Construction Materials, 1200 Urban CenterDrive, Birmingham, AL 35242 Email: (sorrowsc@vmcmail.comhensleya@vmcmail.com) 

----

[1]Inspector Wright has been with MSHA for over ten years. Tr. 11. Although Wrightis currently employed as an electrical specialist, in September of 2019 he wasa general mine inspector and routinely inspected pits, highwalls, mobileequipment, and plants, among other things. Tr. 11. Wright trained as ajourneymen inspector at the Mine Safety Academy. Tr. 13. While at the Academyhe received both classroom and hands-on training regarding how to examinebrakes, including air brakes, for violations of the Secretary’s regulations. Tr.14. Although Wright could not recall what model vehicle he was trained on, itwas similar to the truck at issue in this proceeding. Tr. 44. Prior to workingfor MSHA, Wright spent 25 years in the coal mining industry and held jobs thatrequired him to conduct maintenance, break down and rebuild mining equipment,troubleshoot and repair equipment components, and conduct pre-shiftexaminations when needed. Tr. 12-16.

 

[2]The truck was being used to water the roads at the mine. Tr. 44. Wrighttestified that the truck is considered a self-propelled vehicle under MSHAregulations. Tr. 69.

 

[3]Respondent’s cross-examination of Wright included questions about theinspector’s training and qualifications to inspect air brakes. Wright explainedthat he is trained to listen for audible air leaks when inspecting commercialmotor vehicle air brake systems. Tr. 37-39. Although he could not say whetherhis Mine Academy training included instruction specific to Mack trucks like theone at issue, Wright confirmed that he was trained to examine, and conducted practiceexaminations of, similar trucks. Tr. 38-44; Ex. R-7. In response to questionsabout whether he made an air loss calculation, or completed a pressurethreshold test, Wright explained that he is not required to do so. Tr. 61-62,65-66.

 

[4]Wright explained that he did not cite respondent under 56.14101(a)(1) or (a)(2)because the service brake and parking brake both held the truck on the ramp. Tr.35-36.

 

[5]Hall has a Bachelor of Science degree in mechanical engineering and is aregistered professional engineer in the State of West Virginia. Tr. 73. Priorto working for MSHA, Hall was an engineer responsible for testing militaryequipment. Tr. 72-73.

 

[6]Hall explained that an accident investigation is significantly more in-depththan a regular inspection because the vehicle has already been shown to have afault or defect since it was involved in a serious or fatal accident. Tr. 101. Accidentinvestigations, as opposed to regular inspections, often take days and involvemultiple personnel, a check of both the “air side” and “mechanical side” of thebrake system, the use of heavy equipment, and a review of manufacturer’sinformation and equipment operator manuals. Tr. 100-102, 112. Hall explainedthat, if a truck is still able to run following an accident, the investigation ofthe air brake system begins by conducting a pressure-holding test. Tr. 93. Thepressure-holding test involves releasing the parking brake, allowing air tobuild up in the system until the compressor shuts off, and then holding downthe service brake pedal to determine how much the pressure drops over a periodof time. Tr. 106. The rate at which pressure is lost is then compared againstthe equipment manufacturer’s allowable air pressure loss rate to determinewhether the system is losing pressure too fast and requires necessary repair. Tr.93-94, 106, 107. Hall explained that, while the test verifies whether the airsystem can hold the necessary pressure, it does not determine whether the“wheel end” portion of the system is properly adjusted and can apply neededpressure to the wheel itself, nor does it necessarily show whether there is anair leak. Tr. 95, 107. To illustrate, Hall explained that you can have a smallair leak that does not show up during the pressure-holding test and may notrequire the truck to be taken out of service immediately, but neverthelessstill creates a problem. Tr. 95-96.

 

[7]Hall’s on the job training included assembly, disassembly, testing andmeasuring of equipment components of trucks that were involved in accidents. Tr.92-93. 

 

[8]Prior to hearing Hall prepared anexpert report that explained, generally, what truck air brakes are, how theywork, the components of an air chamber, and problems that can be caused by airleaks in air brake systems. Tr. 76; Ex. P-9. 

 

[9]In this instance the brake chamber is mounted vertically on the truck, so thediaphragm moves up and down, but the operation of the chamber is the same. Tr.141.

[10]Prior to working for Vulcan, Rolfe held several positions in which he wasresponsible for addressing issues related to regulatory compliance of commercialmotor vehicles. Tr. 120-122; Ex. R-23.

 

[11]Rolfe is certified to inspect CMVs through both North American Standard and theFMCSA. Tr. 116; Ex. R-24. He testified that additional knowledge, training andexperience requirements must be met to qualify as a CMV air brake inspector.Tr. 117. 

 

[12]Rolfe testified that 49 C.F.R. contains the “only governmental regulations thatexist” when inspecting a CMV. Tr. 131. These are regulations issued by theDepartment of Transportation.

 

[13]The threshold pressure test is conducted from the seat of the truck. Tr. 135. Theperson conducting the test watches the air brake system gauge to determine thedrop in system pressure, calculated in PSI, over the course of one minute. Tr.136. I note that this test, as described by Rolfe, seems to be the same as the “pressure-holdingtest” described by Hall and utilized during MSHA accident investigations.

 

[14]The allowable air loss rate is set by the manufacturer. Tr. 126. Mostmanufacturers follow an industry standard. Tr. 126. 

 

[15]At hearing, when presented with a picture of the chamber at issue, Rolfe easilyidentified it as a “Clamp Type 30 brake chamber in the vertical position” witha “standard type stroke chamber,” and provided a detailed explanation of thevarious parts of the chamber. Tr. 141-143; Ex. R-1 p. 6.

 

[16]Rolfe explained that the service brake chamber is where pneumatic energy isturned in to mechanical energy. Tr. 142.

[17]Respondent primarily argues that the water truck was a commercial motor vehiclesubject to DOT regulations, and that the inspector failed to have the “minimalqualifications” necessary to conduct a proper air brake inspection under thoseregulations. Vulcan Br. 1-6. However, Respondent cites no authority for theproposition that MSHA has either incorporated DOT standards in its enforcementscheme, or that DOT regulations in any way preempt MSHA’s mandatory safetystandards. Absent specific authority on these issues, I reject Respondent’sarguments regarding the applicability of DOT regulations to the case at hand. *SeeWilliams Natural Gas Company*, 19 FMSHRC 1863, 1869 (Dec. 1997) (Discussinglack of specific authority regarding DOT preemption of regulations promulgatedunder the Mine Act). Moreover, although Wright may have lacked the knowledge, trainingand education to be a DOT certified air brake inspector, I find that nothing inthe record suggests that he was not an authorized representative of theSecretary qualified to conduct inspections and issue enforcement actions forviolations of mine safety and health standards including section 56.14101(a). 

 

[18]The Secretary, in his brief, mistakenly states that the “Commission found thatthe language of . . . [the subject standard] *was not ambiguous* becausethe Secretary’s interpretation was reasonable as it is consistent with thelanguage of the regulation.” Sec’y Br .13 (emphasis added). In fact, theCommission in *Daanen* found that the language subject standard *wasambiguous* before turning to the question of whether the Secretary’sinterpretation was reasonable and entitled to deference. 20 FMSHRC at 192-193.

 

[19]Respondent contends that *Daanen* is inapplicable to the case at hand. VulcanBr. 5. I disagree. Respondent’s argument rests entirely on factual differencesbetween the two cases. *Id*. While the facts of the two cases are notidentical, the Commission in *Daanen* made clear that the Secretary’sinterpretation of the standard was reasonable, and that a violation will beproven if the Secretary can establish that a component of a braking system isnot maintained in a functional condition.

 

[20]Much of Respondent’s evidence was presented as if the Secretary were chargingRespondent with a violation of section 56.14101(a)(1) or (a)(2), i.e., forfailing to pass the parking brake or service brake performance tests. However,Wright testified that the truck passed both performance tests and, as a result,issued the citation for an alleged violation of 56.14101(a)(3) pursuant to theguidance in MSHA’s Program Policy Manual. In *Daanen* the Commissionendorsed this approach by citing the Program Policy Manual as support for theSecretary’s consistent application of the standard. 20 FMSHRC at 194.

 

[21]The Secretary bears the burden of proving a violation by a “preponderance ofthe evidence.” *RAG Cumberland Resources Corp.*, 22 FMSHRC 1066, 1070(Sept. 2000). In order to satisfy this burden, the Secretary must convince thecourt that the existence of a fact is more probable than not. *Id*. Undercertain circumstances the Secretary may establish a violation by inference, butonly when the inference is inherently reasonable and there is a rationalconnection between the evidentiary facts and the conclusion inferred. *Mid-ContinentResources*, 6 FMSHRC 1132, 1138 (May 1984). “If the Secretary fails to meetthis burden then there is no violation, irrespective of any counterarguments.” *SimsCrane*, 41 FMSHRC 393, 396 (July 2019). 

 

[22]The Secretary, in his brief, cites *Grace Pacific Corp*., 35 FMSHRC 3722(Dec. 2013) (ALJ) and seemingly argues that an audible air leak by itselfevidences an equipment defect. Sec’y Br. 15. However, the inspector in *GracePacific* both heard an audible air leak and calculated an air loss rate. *Id*.at 3273. Moreover, there the ALJ relied at least in part on the air loss ratecalculation in finding that a violation existed. *Id*. at 3274 (“Giventhat the psi was lower than the acceptable level, leaving the brakesineffective, I find that the brakes were not maintained in functional conditionand a violation has been shown.”). 

 

[23]Hall, who offered the more substantive testimony on this topic, was not presentat the time of the inspection, did not hear the alleged air leak, and neverexamined the subject brake chamber. 

[24]Outside of statements that air was expelled from the chamber the entire timethe brake pedal was depressed, Wright offered little context as to what hemeant by saying that the alleged leak was “continuous” or “constant.” Notably,he did not testify to the duration of time that the brake pedal was depressed. 

 

[25]Although neither party offered a detailed explanation of the treadle valve, thecourt understands that the treadle valve is connected to the service brake footpedal and controls the amount of air pressure delivered to the brake chamber. Asa result, fluctuations in pressure to the brake pedal necessarily means thatair is moving through the treadle valve to the brake chamber. 

 

[26]Indeed, Wright left open the possibility that the brake pedal was not fullydepressed during the entire test. When Wright was asked on cross whether heknew for a fact that the driver applied consistent pressure to the brake pedal,he responded by saying that “if he didn’t [apply consistent pressure], thatwould be [Vulcan’s] people not doing as they was (sic) asked.” Tr. 55. However,it is the Secretary’s burden at hearing to prove every element of the violationby a preponderance of the evidence. While it is unclear what happened in thisinstance, an inspector’s testimony that he gave someone an instruction does notconclusively establish that the instruction was followed. Similarly, failure tofollow the instruction of an inspector does not prevent an operator fromchallenging whether the Secretary has met his burden.