**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:(202) 434-9933 / Fax: (202) 434-9949

 

 
| SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH        

ADMINISTRATION  (MSHA),               

Petitioner

 

                        v.

 

CLAY  TRUCKING, INC,

Respondent                                             |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket  No. WEVA 2023-0123

    A.C.  No. 46-09514-567090

 

 

 

    Mine:  Muddy Bridge          |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**DECISION APPROVING SETTLEMENT**

** **

Before:  JudgeMoran

 

Thiscase is before the Court upon petition for assessment of civil penalty underSection 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretaryhas filed a Motion to Approve Settlement. The Respondent has agreed to theproposed changes. The originally assessed total amount was$26,260.00, and the proposed settlement amount is $16,079.00.

 

Theproposed settlement terms are reflected in this table:

 

| 9568922    | $12,754.00     | $2,573.00      | Modify gravity from “Reasonably  Likely & S&S” to “Unlikely & Non-S&S”

**80% reduction in penalty**         |
|------------|----------------|----------------|-------------------------------------------------------------------------------------------------------------------------------|
| 9568923    | $234.00        | $234.00        | Affirmed as issued and assessed                                                                                               |
| 9568924    | $518.00        | $518.00        | Affirmed as issued and assessed                                                                                               |
| 9568925    | $12,754.00     | $12,754.00     | Affirmed as issued and assessed                                                                                               |
| **TOTALS** | **$26,260.00** | **$16,079.00** | 39% overall reduction in penalty                                                                                              |

 

 

 

 

 

**CitationNo. 9568922, for which the Secretary seeks an 80%reduction in the penalty.**

** **

            OnSeptember 19, 2022, **per Citation No. 9568922,**MSHA Inspector Emory Packissued a section 104(a) citation alleging a violation of 30 C.F.R. §77.1606(c).That standard titled “Loading and haulage equipment; inspection and maintenance,”provides at subsection (c): “**Equipment defects affecting safety shall becorrected *before* the equipment is used**.” 

 

            InspectorPack stated in the condition section of his citation the following:

 

The following equipment defectsaffecting safety were not corrected ***before***the company No. 041Peterbilt 18 wheeler coal truck was placed into operation:

**The Brake canisters located on thefront axle of the tractor was leaking air and could be heard over the truck andsurrounding noise levels.**The air leaks caused the air tank to empty when tested.Defects effecting safety shall be corrected before the equipment is used. **Thistruck was being operated on steep grades throughout the mine property.**

 

Petitionfor Civil Penalty at11****(emphasis added)

 

            Theviolation was terminated after the defective brake canisters were replaced withnew ones. Following that replacement, the canisters were no longer leaking air.*Id.*

** **

**CitationNo. 9568923**

** **

****On the *same* day,**perCitation No. 9568923**,****the *same* coal truck was cited for aviolation of 30 C.F.R. § 77.1605(d). That provision, under the same title, “Loadingand haulage” states: “Mobile equipment shall be provided with audible warningdevices. Lights shall be provided on both ends when required.” The inspectorstated that the truck was not provided with a working reverse light on thetrailer finding that the light provided was not operative when checked. Theviolation was terminated upon the reverse light being replaced with a new one. 

 

Petitionfor Civil Penalty at 12

** **

**CitationNo. 9568924**

 

            Yetagain on the same day, **per Citation No. 9568924**, the inspector citedanother violation of 30 C.F.R. § 77.1605(d), this time recording “The companyNo. 024 18-wheeler coal truck (Trailer No.48) was not provided with a workingsignal lights on the right rear and the front right. Also, the head lightswould not work on high beam when checked. The lights provided is not operativewhen checked.”

 

Petitionfor Civil Penalty at 13

** **

            Thatviolation was terminated on September 26, 2022, with the inspector noting: “Thecompany No. 024 18-wheeler coal truck has been provided with a working signallights on the right rear and the front right. Also, the head lights dimmerswitch was replaced with a new one and will now work on high beam when checked.”

 

*Id.*at 14.

 

**CitationNo. 9568925**

 

            Last,again on the same day as the other citations described above, September 19,2022, Inspector Pack issued the fourth citation in this docket, Citation No.9568925. Involving the same standard identified in Citation No. 9568922**,**30C.F.R. §77.1606(c), this one involved the same truck cited in Citation No. **9568924**.This time in the condition section of the citation, the Inspector listed thefollowing: 

 

Thefollowing equipment defects affecting safety were not corrected before thecompany No.024 (Trailer No.48) Peterbilt 18-wheeler coal truck was placed intooperation:

(1)       Theturtle valve fitting for the tractor has a broke fitting and is leaking air badand can be heard over the truck and surrounding noise levels.

(2)       **Theright rear brake canister was also leaking air when tested**.

(3)       Thecrossover bar for the 5th wheel was broke into on the front side.

Defectseffecting safety shall be corrected before the equipment is used. This truckwas being operated on steep grades and sharp curves throughout the mineproperty. The truck was removed from service immediately.

 

Petitionfor civil penalty at 15.

 

            OnSeptember 26, 2022, the violation was terminated with the inspector recording:

Thefollowing equipment defects affecting safety have been corrected on the companyNo.024 Peterbilt 18-wheeler coal:

(1)       Theturtle valve fitting for the tractor has been replaced with a new fitting andis no longer leaking air.

(2)       **Theright rear brake canister was replaced with a new canister**.

(3)       The5th wheel bracket has been replaced.

 

*Id*. at 16.

 

            Thus,this docket involves four, now-conceded, violations, all dealing with truck safetydefects, two each on two coal haul trucks and the two cited trucks had leakingbrake canisters. Three of the four citations were paid as per the regularassessment process. 

 

            Afternoting in the motion the condition of leaking air from the front axle brakecanisters, as found by the MSHA Inspector Pack, as described above, the claimedjustification for designating the injury from the admitted defect as ‘unlikely’stated: 

 

TheRespondent does not dispute that the canisters/brake chambers on the front axleof the tractor may have been leaking air to some extent but not at a rate whichcompromised the capability of the braking system. The MSHA-inspector determinedthe fitness of the braking system was adversely affected based on noise levelof the air leak coming from brake chambers and the leakage allegedly causingthe actuator tank to empty. Therefore, the braking capacity was evaluated asbeing diminished to a point as to create a safety hazard that would result in aserious injury.[1] The Respondent would argue athearing that with the truck’s engine running at idle when tested, the truck’sair compressor for the braking system would be supplying air continuously tothe actuator tank. It is highly unlikely the actuator tank would ever be voidof compressed air, empty. Unless, there was a malfunction with the compressor,however, there was no evidence of this at the time of issuance. The Respondentfurther argue [sic] that *the inspector failed to show any defects*, basedon criteria in MSHA’s Inspection Procedure for Coal Haulage Trucks, page #4,Steering Axle Brakes: 1) an absence of braking action on either of the twobrake chambers; 2) that there existed a mismatch across the two power units(air chamber size or in the slack adjuster length) and; 3) that the brakelinings or pads on the steering axle of the power units were compromised (padsare not firmly attached to the brake shoe, oil seepage into or out of the brakelining/drum, or brake pads less than 3/16 inch in thickness). Moreover, withcondition as alleged, MSHA’s protocol is to request the company representativeto “Perform Brake Tests” on an area of the haul road of moderate to steep slopewith the truck fully loaded to determine the actual braking capability of thevehicle. This request, possibly to resolve the alleged braking issue, was noteven considered by the inspector. The Respondent asserts there is no practicaldata/evidence provided to support the alleged condition based on thequasi-brake test performed by the inspector. The previous pre-op inspectionconducted on the coal haul truck reflected the braking capacitywas adequate to control the truck at all times and there is no evidencecontrary to this contention. The Respondent further asserts the inspector’srationale in evaluating the alleged condition is speculative. 

 

The Secretary agrees that the factssupport a modification of the likelihood from reasonably likely to unlikely. 

Motion at 3-4.

** **

** **

**Analysisfor Citation No**. **9568922**

** **

            Forthis now-admitted violation, regarding Citation No. **9568922**, theSecretary’s representative seeks to have the penalty reduced by **80% (eightypercent)**, on the basis that the likelihood of the injury occurring shouldbe classified as “unlikely.” Motion at 2, 3. For the reasons which follow, theCourt believes that there is not legitimate support for an ‘unlikely’designation and that the mine operator’s support for that designationimproperly shifts the burden of proof on the MSHA mine inspector and that theadmitted condition, air leaking from canisters/brake chambers, was serious andwarranted correction without delay.

** **

****To begin, air brake chambers areround metal containers, located at each wheel, where compressed air isconverted into mechanical force to apply the brakes and stop the vehicle. Airis supplied to the brake chambers on each wheel through brake valves. It iscontrolled by the driver, who can determine how intense the braking should be.[2]

 

            TheFederal Motor Carrier Safety Administration, Department of Transportationspeaks to the subject of this admitted violation, noting at APPENDIX A TO PART396—MINIMUM PERIODIC INSPECTION STANDARDS, “**A vehicle *does not* passan inspection** if it has one of the following defects or deficiencies: “... (4)**Audible air leak at brake chamber** (Example-ruptured diaphragm, loosechamber clamp, etc.).” (emphasis added). 

 

            Asnoted above, the mine operator’s justification attempts to shift the burden ofproof on the MSHA mine inspector beyond his findings that the brake canisters/brakechamber, on the front axle were leaking air to the extent that the air leakagecould be heard over the noise levels created by the truck itself and thesurrounding noise. The inspector’s hearing alerted him to the leaking air and thoughthat was sufficient, as “[a] brake chamber should never leak air out of theservice or parking brake system,”[3] he then foundthat “the air leaks caused the air tank to empty when tested.” Petition forCivil Penalty at 11. The air tank is important as “an air braking systemincludes an air tank that holds sufficient energy to stop a heavy vehicle ifthe compressor fails. So, an air brake system is designed with enough fail-safecapacity to stop a truck safely, even when leaking.” https://www.repairsmith.com/blog/air-brake-system/ Here, Inspector Pack found that “[t]heair leaks caused the air tank *to empty* when tested.” *Id.*at 11(emphasis added). 

 

            Turningto the Respondent’s assertions in support of its claim that an accident was notlikely to occur, the Respondent’s argument that truck’s air compressor for thebraking system would be supplying air continuously to the actuator tanksidesteps the inspector’s finding that the air leaks caused the air tank toempty when he tested it. Although the Respondent contends that it would be “highlyunlikely the actuator tank would ever be void of compressed air,” as long asthere was no malfunction with the compressor, it does not challenge theinspector’s finding that the leaks caused the air tank to empty. 

 

            Moreimportantly, the Respondent’s argument distracts from the underlying issue –the brake canisters on the truck’s front axle were leaking air and to an extentthat the noise from the air leaks could be heard over the truck’s noise and thesurrounding noise as well. Anyone who has ever been at a gas station and heardan 18-wheeler idling can attest that it is noisy. The point is that an air leaknoise of the order found by the inspector is significant. 

 

            Aserious flaw in the parties’ assertion is that it ignores that the test forlikelihood is measured under continued normal mining operations, without anyassumptions as to abatement therefore it is not limited to the moment at hand. *See,for e.g., Consol Pennsylvania Coal*, 44 FMSHRC 691,697 (Dec. 2022), citing *U.S.Steel Mining,*7 FMSHRC 1125, 1130 (Aug. 1985). The leaking brake canisterswere an accident waiting to happen, especially so because, as Inspector Packnoted without contradiction, the truck was being operated on steep gradesthroughout the mine property. 

 

            Thebalance of the Respondent’s claim that an injury was unlikely to occur is allabout its protest that *the inspector*, but not the operator itself,should have performed additional testing. Further, additional testing would notchange the fact that the canisters *were leaking air*and loudly at that. Perhapsthe best evidence that the inspector’s ears and the test he performed told thestory, is that the operator replaced the canisters with new ones and voila, theair leaking stopped.[4]  In short,had the inspector taken on the burden that really belonged to the operator, notMSHA, all that the best-case scenario would have established is that, *atthat moment*, the brakes might function, even as they were leaking air. Again,that is *not the test.*

 

            Itis noteworthy that Clay Trucking’s recent problems with brake chambers were notlimited to this instance. In this very docket Citation No. 9568925, issued thesame day as Citation No. 9568922, another 18-wheelertruck was also found by Inspector Pack to have a rear brake canister leaking airwhen tested. Petition for Civil Penalty at 15. The leaking air canister was butone of three defects identified by the inspector in issuing his citation forthe now-admitted violation of 30 C.F.R. §77.1606(c). As with Citation No.9568922, the remedy was to replace the right rear canister with a new one. *Id*.

 

             Ina separate earlier instance, per Docket No. WEVA 2023-0124, Clay was cited withyet another violation of the same standard, 30 C.F.R. §77.1606(c). Brakecanisters were part of the defects in that matter. Issued earlier in the sameyear as this matter, in March 2022, a different MSHA Inspector, Andrew D. Bell,found a host of defects affecting safety with Clay’s No.026 coal truck. As pertinent here, Inspector Bell found that “[b]othcanisters (brake chambers) [on the No. 026 coal truck] on the middle tandem ofthe trailer are not providing adequate braking capacity. The air lines on thepassenger side middle tandem canister were hooked up backwards; the passengerside middle tandem canister is out of adjustment; the driver side rear tandemcanister on the tractor is out of adjustment; the driver side front brakecanister is out of adjustment.” For that violation, the Secretary believed thata 50% reduction in the penalty was justified.[5]

 

            Basedon the evidence of record and recognizing that the Commission does not allowits judges to make reasonable inquiry when presented with settlement motions,the Court concludes that the unlikely designation is unjustified. This isparticularly troublesome because Citation No. 9568922 was regularly assessed. Giventhe concerns expressed above, there is a question whether the 80% penaltyreduction is consonant with Congress’ goal of imposing penalties that makenon-compliance more expensive than compliance. If afforded the authority tomake reasonable inquiry, a judge’s concerns may be allayed and a settlementthen approved in good conscience. To the Court, respectfully, settlements reviewedunder the present structure, such as this, lay bare the conundrum faced by itsjudges. Unable to make reasonable inquiry, the Court is faced with eitherblindly accepting the parties’ remarks, in which case it is reduced to atitular role or pointing out the apparent deficiencies in a given settlement,as it has done here.  

 

            Whilerejecting the former approach, that is not the end of the settlement review,because even when faced with problematic settlements as here, the Court is toconsider the Secretary’s Motion****on the basis of the Commission’sdecisions in *The American Coal Co*., 40 FMSHRC 983 (Aug. 2018) and *RockwellMining, LLC*, 40 FMSHRC 994 (Aug. 2018) for the standard to be applied byCommission administrative law judges when reviewing such settlement motionsunder the Commission’s interpretation of section 110(k) of the Mine Act. Perthe Commission’s decisions on the scope of a judge’s review authority ofsettlements, the “information” presented in this settlement motion issufficient for approval. Accordingly, the settlement must be approved, but again,as with this Court’s recent approval in the other Clay Trucking case describedabove, the approval here is also based *solely*on those Commissiondecisions addressing settlements.

 

            Given the presentlimited review parameters, the motion to approve settlement must be, and is, **GRANTED**and the Citations in this docket are modified, as reflected in the tableabove. As such, it is **ORDERED**that for Citation No. 9568922 the gravity is **MODIFIED** from “ReasonablyLikely” to “Unlikely,” and as a consequence of that, S&S finding isreplaced as “Non-S&S.”

 

Itis **ORDERED**that the Respondent is to pay a civil penalty of **$16,079.00**.

 

**Further,**per the terms ofthe settlement motion, the civil penalty for this docket is to be paid in five(5) consecutive monthly payments of **$2,680.00** and one (1) final paymentof **$2,679.00** for the violation(s) in Docket No. **WEVA 2023-0123.**Thefirst payment shall be made on or before the first day of the month following theissuance of an Order approving this settlement.[6]

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

Distribution(by email):

 

D. Cass Trent, CLR, U.S. Dept of Labor, MSHA, 4499Appalachian Hwy, Pineville, WV 24874, trent.david@dol.gov

 

JeanieJohnson, Office Manager, Clay Trucking Inc., 110 Castlewood Lane, Summersville,WV 25878, jeaniejohnson@frontier.com

 

Kevin Nutter,Safety Director, Clay Trucking Inc.,110 Castlewood Lane, 

Summersville,WV 25878, kevingnutter@gmail.com

----

[1]Depending on one’smeaning of a ‘serious injury,’ Inspector Pack evaluated that the an injurywould be reasonably likely to result in lost workday or restricted duty. Petitionfor Civil Penalty at 11.

[2]https://www.google.com/search?q=brake+chambers+explained&rlz=1C1GCEB_enUS954US954&ei=lFiPZLSzAduw5NoPuf,-NiA4&oq=brake+chamber+and+%22vital+part%22&gs_lcp=Cgxnd3Mtd2l6LXNlcnAQARgAMgsIABCKBRCGAxCwAzILCAAQigUQhgMQsANKBAhBGAFQAFgAYIcZaAFwAHgAgAEAiAEAkgEAmAEAwAEByAEC&sclient=gws-wiz-serp; https://www.theengineerspost.com/air-brake-system/

 

[3]https://www.thetruckersreport.com/truckingindustryforum/threads/brake-chamber-leaking-from-rear-when-brakes-applied.510651/  Further, to thequestion whether one can drive with a leaking brake chamber, it is advised itis “[n]ot a good idea to drive with a leaking brake line. The possibility willexist that when you apply your brakes the leaking part could rupture and thebrake line will give way completely and you will lose braking power alltogether. https://www.quora.com/Can-you-drive-with-a-leaking-brake-line#:~:text=Not%20a%20good%20idea%20to,lose%20braking%20power%20all%20together.

Morewill be said about leaking brake air canisters in the body of this decision. 

 

 

[4]Hearing anaudible air leak is not to be discounted in establishing that a brake systemwas not functioning properly. *Oil-Dri Production*, 40 FMSHRC 876 (June2018) (ALJ Zane Gill). That case involved a metal/nonmetal provision, which istantamount to the same requirement that – “All braking systems installed on theequipment shall be maintained in functional condition.” 

 

Miningfatality investigations have also implicated service brake chambers where brakeactuators had an air leak. https://www.msha.gov/data-reports/fatality-reports/2022/january-28-2022-fatality/finalreport#:~:text=On%20January%2028%2C%202022%2C%20at,they%20were%20in%20lost%20control%2C

 

[5]Although it was thisCourtwhich approved the settlement in Docket No. WEVA 2023-0124, itdid so “solely on the basis of the Commission’s decisions in *The AmericanCoal Co*., 40 FMSHRC 983 (Aug. 2018) and *Rockwell Mining, LLC*, 40FMSHRC 994 (Aug. 2018) for the standard to be applied by Commissionadministrative law judges when reviewing such settlement motions under theCommission’s interpretation of section 110(k) of the Mine Act.” DecisionApproving Settlement at 3.

 

[6]Penalties may be paidelectronically at Pay.Gov, a service of the U.S. Department of the Treasury, athttps://www.pay.gov/public/form/start/67564508. Alternatively, send payment(check or money order) to: U.S. Department of Treasury, Mine Safety and HealthAdministration, P.O. Box 790390, St. Louis, MO 63179-0390. 

It isvital to include Docket and A.C. Numbers when remitting payments.