A review of these cases reveals that the applicability of the standard to the cited vehicles was not raised as an issue by the respondents. The Secretary offers no reasonable explanation as to why the Peterbuilt trucks should be considered equipment similar to the earthmoving equipment specifically identified in the standard. Even if it were determined that the cited standard applies, the Secretary failed to establish that WellTech was in noncompliance. The record shows that the access road became muddy and slick as the rainfall increased. This alone does not establish the Secretary's case.
Any road becomes slicker when rained upon.
Some evidence of the degree of slickness is necessary to prove that a hazard existed. The witnesses whose testimony tended to support the Secretary's theory that the road was unsafe were on the whole less credible than the witnesses who considered the road to be safe. Harold Dobbs drove the bulldozer. Dodds stated that he and Boehs discussed shutting down the jobsite, but he explained that the condition of the access road was not the reason for the discussion. It was making things worse instead of better.