Secretary of Labor v. Vulcan Construction Materials, LLC

Plain-English summary

MSHA cited Vulcan Construction Materials after an inspector heard air escaping from a water truck's rear brake chamber at the South Russellville Quarry. The service and parking brakes both held the truck, but the Secretary argued that the audible release showed a brake-system component was not maintained in functional condition. The evidence established that the chamber's weep hole normally vents air when the brake diaphragm moves. Judge Richard W. Manning found that the Secretary did not prove the release resulted from a damaged diaphragm rather than normal venting or fluctuations in pedal pressure during the test. Because the alleged defect was not established by a preponderance of the evidence, he vacated Citation No. 9428135 and its proposed $121 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14101(a)(3)
• Outcome: Citation No. 9428135 and the proposed $121 penalty were vacated.
• Key point: An audible release from a brake chamber's weep hole did not prove a component defect without reliable evidence separating a leak from normal system venting.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

Office of Administrative
Law Judges

721 19 th
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: ( [email protected] )

Brandon
E. Russell, Conference and Litigation Representative, Mine Safety and Health
Administration, 1030 London Drive, Suite 400, Birmingham, Alabama 35211 Email:
( [email protected] )

Chris
Sorrows and Autumn Graves, Vulcan Construction Materials, 1200 Urban Center
Drive, Birmingham, AL 35242 Email: ( [email protected] [email protected] )

[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.