Anthony Mining Company

Plain-English summary

Anthony Mining operated a strip mine where a Willys jeep carried a water pump. The judge found that the jeep's service brakes and parking brake were not maintained in good operating condition, but he found insufficient evidence that the jeep was driven with defective windshield wipers and motors. The two brake citations were affirmed, their significant-and-substantial designations were vacated, and penalties of $150 and $75 were assessed. The wiper citation was vacated, and payment of the two penalties was ordered within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1605(b) and 77.1606(c)
• Outcome: Two brake citations were affirmed with S&S findings vacated, one wiper citation was vacated, and $225 in penalties was assessed.
• Key point: The brake standard applied to the jeep as mobile equipment, but the evidence did not establish that the jeep was driven with defective wipers.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. ANTHONY MINING
DDATE:
19910719
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         2 Skyline, 10th Floor
                          5203 Leesburg Pike
                     Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 90-87
PETITIONER A.C. No. 33-01314-03519
v.
Island Creek # 43 Strip Mine
ANTHONY MINING COMPANY,
RESPONDENT

                               DECISION

Appearances: Kenneth Walton, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for the
Petitioner;
Gerald P. Duff, Esq., HANLON DUFF & PALEUDIS CO.,
LPA, St. Clairsville, Ohio, for the Respondent.

Before: Judge Koutras

                         Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments for
three alleged violations of certain mandatory safety standards
found in Part 77, Title 30, Code of Federal Regulations. The
respondent filed an answer contesting the alleged violations, and
a hearing was held in Steubenville, Ohio. The parties did not
file posthearing briefs, but I have considered their oral
arguments in the course of my adjudication of this matter.
Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the standards as alleged in the proposal
for assessment of civil penalties, (2) whether the violations
were "significant and substantial," and (3) the appropriate civil
penalties that should be assessed based on the civil penalty
criteria found in section 110(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

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Applicable Statutory and Regulatory Provisions

      1. The Federal Mine Safety and Health Act of 1977, Pub.
      L. 95-164, 30 U.S.C.   801 et seq.

      2. Section 110(i) of the 1977 Act, 30 U.S.C.         820(i).

      3. 30 C.F.R.      77.1605(b) and   77.1606(c).

      4. Commission Rules, 20 C.F.R.      2700.1 et seq.

                                Stipulations

 The parties stipulated to the following (Exhibit ALJ-1):

      1. The Federal Mine Safety and Health Review Commission
      has jurisdiction over this proceeding.

      2. The Anthony Mining Company is an "operator" as
      defined in   3(d) of the Federal Mine Safety and Health
      Act of 1977 (the "Mine Act"), 30 U.S.C.   802(d).

      3. The Anthony Mining Company is a small operator.

      4. The Island Creek #43 Strip Mine of the Anthony
      Mining Company is a mine as defined in   3(h) of the
      Mine Act, 30 U.S.C.   802(h).

                                 Discussion

 The alleged violations in this case all concern one piece of

equipment; a Willys jeep with a water pump mounted on the cargo
bed behind the driver's cab. Two of the three section 104(a)
"S&S" citations issued on February 15, 1990, were issued for
violations of mandatory safety standard 77.1605(b), because the
service brakes and parking brake were not maintained in good
operating condition in that the service brakes would not stop the
jeep and the parking brake could not be applied. The third
citation was issued for a violation of mandatory safety standard
77.1606(c), because the windshield wiper arms and blades wer
missing and the wiper motors were inoperative. The inspector
noted that it was raining at the time the violative conditions
were observed and cited.

                     Petitioner's Testimony and Evidence

 MSHA Inspector B. Ray Marker testified that he inspected the

jeep in question on February 15, 1990, in the course of his
inspection of the respondent's strip mine. He stated that the
jeep was located in the pit area where coal was being loaded. A
water pump used to pump water from the pit was mounted on the
jeep, and he was informed that the pump had a defective seal

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(Tr. 9-13). He observed an employee walking towards the jeep, and
when he asked him what he was going to do, the employee advised
him that he was going to move it out of the way because another
pump was being brought to the pit. Mr. Marker then decided to
inspect the jeep, and when he asked the employee to try the
brakes, "the brake pedal went to the floor and there was no
indication of any service brake whatsoever" (Tr. 14). He then
asked the employee to apply the parking or emergency brake and
"for some reason the park brake could not be applied". Mr. Marker
then looked at the windshield and observed that the wiper blades
and arms were missing from the motor and that the wiper motors
would not work. He then issued a section 107(a) closure order to
prevent anyone from moving the vehicle (Tr. 14, Exhibit P-1).

 Mr. Marker stated that the jeep key was in the ignition and

that the jeep could be driven and it was available for use. He
spoke with pit foreman John Sperlaza who acknowledged that he was
aware of the brake problems. Mr. Marker confirmed that another
pump was brought to the pit, and the cited jeep was towed away
(Tr. 14-15). Mr. Marker confirmed that he issued the citations in
question because of the conditions which he observed (Tr. 16, 20,
23; Exhibits P-2 through P-4).

 On cross-examination, Mr. Marker stated that he has never

observed the jeep in operation anywhere at the mine site, and he
confirmed that the pump was attached to the jeep and that "the
purpose of the piece of equipment was for the water pump" (Tr.
26). He identified the employee that he spoke with as Denver Ray,
and he confirmed that Mr. Ray did not start the vehicle until he
(Marker) approached it. He stated that he has no evidence to
contradict the fact that the jeep may have been towed to the pit,
rather than being driven, and he confirmed that he never observed
the jeep in any accident at the mine (Tr. 28).

 Mr. Marker stated that the violations in question would be

"significant and substantial" only if the jeep were operated out
of the pit area and on the haul road leading in and out of the
pit. There was no probability of any accident occurring in the
pit area where the pump would normally be located (Tr. 28). He
stated that the jeep had three forward and one reverse gears,
that it would not be driven at much of a speed, and if driven in
low gear it would be operated in a relatively slow powered gear.
Under normal conditions, the jeep could be reasonably driven
slowly by using the clutch and low gear (Tr. 29). Mr. Marker had
no reason to believe that the jeep was driven on the day of his
inspection (Tr. 30). Mr. Ray and one other individual were the
only people in the pit. There would be no need for windshield
wipers if the vehicle was not going to be operated, and he did
not personally test the brakes, and simply visually observed them
(Tr. 31).

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In response to further questions, Mr. Marker stated that he
assumed that the jeep would be driven out of the pit because the
key was in the ignition and Mr. Ray started it as he (Marker)
walked toward the jeep. Mr. Ray told him that the pump was going
to be moved out of the pit, but he did not say that the jeep was
going to be driven out (Tr. 32-33). Mr. Marker stated that the
pump occupied most of the jeep cargo space, and with the
exception of some additional water hose, he did not believe that
the jeep could be used for hauling supplies. He confirmed that
the jeep would be a "fixed object" in the pit while the pump was
being operated and until it was relocated to another area. He did
not know how long the brake conditions had existed and he checked
no records or inspection reports (Tr. 35-37).

 Mr. Marker believed that Mr. Ray moved the jeep forward a

few feet when he asked him to test the brakes, and "it came to a
coasting stop on its own". Mr. Marker also stated that "the brake
went clear to the floor and that was enough for me" (Tr. 38). He
confirmed that other than moving the jeep from one pit area to
another over the haul road, the jeep would not normally be
operated on the haul road (Tr. 39). If the jeep were parked with
a workable pump, he would have only inspected the pump engine
guarding. However, since the pump could not be used, he was
concerned that the jeep would be used for transporting that pump
(Tr. 40).

 Mr. Marker confirmed that the jeep had a tow bar attached to

the front bumper, and he indicated that Mr. Ray and another
individual (Brown) told him that they did drive the jeep. He
(Marker) also confirmed that the pit terrain was reasonably level
with a grade 300 to 400 feet long coming out of the pit. The only
occasion for using the parking brake would be for an emergency,
and the jeep was towed from the premises and dismantled (Tr.
42,44). Mr. Marker also confirmed that he had no reason to
believe that the jeep was used routinely for anything other than
pumping water (Tr. 43). When he initially spoke with Mr. Ray, he
saw no other vehicle present which would have been used to tow
the jeep, but after speaking with Mr. Sperlaza a vehicle was
brought in to tow the jeep (Tr.46).

                  Respondent's Testimony and Evidence

 Pit foreman and heavy equipment operator Denver O. Ray, Jr.,

testified that his job on February 15, 1990, was to take care of
the water pump mounted on the jeep and to insure that it was
pumping water. He stated that the jeep was initially towed to the
pit area by mine foreman J. C. Schiappa with his pickup and
parked at the location where it was observed by the inspector. He
confirmed that the jeep was equipped with a tow bar, and he
denied that he ever drove or intended to drive the jeep that day.
He explained that prior to the inspector's arrival, the back hoe
operator informed him that the pump seal was defective and that

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the pump was not operating. He then made preparations to bring in
another pump and arranged for Mr. Schiappa to bring in his pickup
so that the jeep could be towed out of the pit and the pump taken
to the machine shop to be repaired (Tr. 52-54).

 Mr. Ray denied that he intended to drive the jeep out of the

pit, and he stated that he told Inspector Marker that the jeep
was going to be towed out. He further stated that he started the
jeep after the inspector told him to start it, and that he did so
because he believed the inspector wanted to inspect it (Tr. 55).
He stated that the jeep was not used to transport men or material
that day and that it was towed out with a tow bar with Mr.
Schiappa's pickup. The jeep had been parked in the pit for a week
or two pumping water so that the main coal seam could be tapped
and loaded out (Tr. 56).

 On cross-examination, Mr. Ray admitted that he had

previously driven the jeep approximately two weeks prior to the
inspection by Mr. Marker. He stated that he had brakes when he
drove it and that the brake pedal went about "halfway down". He
was the only person to drive the jeep and he has never hit
anything while driving it. He stated that the jeep only served as
a stand for the pump because the jeep wouldn't start and Mr.
Schiappa had to push it into position with his truck (Tr. 59). He
asserted that he only started it after the inspector told him to
get in and start it (Tr. 59). He confirmed that the brake pedal
"went to the floor" and the parking brake and windshield wipers
did not work (Tr. 60).

 In response to further questions, Mr. Ray stated that he

usually drove the jeep in first gear no more than five miles an
hour and that he drove it from where it is usually parked "at the
top of the hill" to the pit. The jeep was only used in the pit
area to pump water and it was never used to transport men or
materials. The jeep is usually blocked by placing rocks under the
wheels when it is parked (Tr. 61-63).

 Foreman John C. Schiappa testified that he was informed

sometime between 9:00 a.m., and 9:30 a.m., on February 15, 1990,
that the pump in question had quit pumping. He issued
instructions to have another pump taken to the pit, and he
assigned employee Bill Weaver to drive his pickup truck to the
pit to tow out the jeep with the defective pump. The pump had
been pumping water for 10 to 12 days before the inspection and it
had not been moved from its location in the pit. The jeep was
equipped with a tow bar and it was customarily towed in and out
of the pit at times (Tr. 65-67).

 On cross-examination, Mr. Schiappa stated that the jeep was

originally driven to the pit, and that "at times" the jeep was
driven and towed to the pit area. He stated that in the winter
season the jeep wouldn't start, and that when it was driven to

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the pit prior to the inspection, "the brakes were in good shape",
and there were "no problems as far as stopping". However, he
acknowledged that he did not know how far the brake pedal went
down because he did not drive the jeep, and he had no personal
knowledge of the condition of the brakes. He confirmed that there
were no windshield wipers on the jeep (Tr. 68-69).

 In response to further questions, Mr. Schiappa stated that

when the jeep was driven it was only driven for a distance of
one-tenth to two-tenths of a mile, and then towed into the pit.
The pump would only leave the pit area when it was in need of
repair and it was always towed to the repair shop. He considered
the jeep to be a stand for the pump rather than a piece of mobile
equipment. The pump was bolted to the bed of the jeep and it
could be unbolted and removed from the jeep. If this were done,
the jeep would be used as a standby for another pump (Tr. 70-73).
Findings and Conclusions

Fact of Violation - Citation Nos. 3130674 and 3130675

 The respondent is charged with two violations of mandatory

safety standard 30 C.F.R. 77.1605(b), because of its failure to
maintain the jeep service brakes and parking brake in good
operating condition. Section 77.1605(b), provides as follows:

      Mobile equipment shall be equipped with adequate
      brakes, and all trucks and front-end loaders shall also
      be equipped with parking brakes.

 During the course of the hearing, respondent's counsel

advanced an argument that the cited jeep was not a vehicle which
was normally operated in the pit, that it was not being used as a
mobile piece of equipment, and that it simply served as a stand
for the water pump (Tr. 50-51). Notwithstanding his statement
that "obviously a Willys jeep is mobile", counsel argued that
section 77.1605(b), "talks basically about trucks, front-end
loaders, and rock trucks out on the haulageway" (Tr. 80). Since
the jeep traveled at most a tenth of a mile to two-tenths of a
mile, and was generally towed into and out of the pit, counsel
characterized the jeep as "a glorified platform stand with the
pump", and he concluded that within the express language of the
regulation, or the spirit of the regulation, the jeep was not
used as a piece of mobile equipment (Tr. 80).

 The term "mobile equipment" is not defined in Part 77 of the

regulations. However, it is defined in the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968, at page 719, as follows:

      Applied to all equipment which is self-propelled or
      which can be towed on its own wheels, tracks, or skids.

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The respondent's suggestion that the cited jeep was not a
piece of mobile equipment subject to the requirements of section
77.1605(b) is rejected. Apart from the modification made to the
jeep to accommodate the water pump in the cargo area behind the
driver, there is no evidence that the jeep was other than a self
propelled vehicle which was sometimes driven and sometimes towed
to and from the pit area. Although it may have been driven a
relatively short distance from the area where it was normally
parked to the pit area, it did travel over the regular haulage
road used by other vehicles. Further, although the jeep may have
been parked at the pit site for as much as ten days while the
pump was pumping water, there is no evidence that the jeep was a
permanent fixture at any one location in the pit. Indeed, the
evidence shows that the jeep was moved in and around the pit area
as needed so that the pump could pump water, and when it was
moved from place to place it usually traveled over portions of
the haul road.

 Contrary to the respondent's assertion in its answer of July

3, 1990, that the jeep was never driven, both Mr. Ray and Mr.
Schiappa admitted that the jeep was sometimes driven, and
sometimes towed, to and from the pit area. Further, if the pump
were unbolted and removed from the rear of the jeep, the jeep
could be used as a "standby" vehicle for another pump, and I find
nothing to suggest that it could not be used for other purposes.
Under all of these circumstances, I conclude and find that the
cited jeep was a piece of "mobile equipment" within the scope and
intent of section 77.1605(b), and that the brake requirements
found in this regulation applied to the jeep.

 The uncontroverted and credible testimony of Inspector

Marker establishes that at the time of his inspection of the
jeep, and after requesting Mr. Ray to depress the service brake,
the brake pedal went all the way to the floor and the inspector
found no indication that the brakes were operational. The
inspector's belief that Mr. Ray may have moved the jeep forward a
few feet while testing the service brake and that the jeep "came
to a coasting stop on its own" is unrebutted. In fact, Mr. Ray
testified that "after he made me start it up and take off with
it, the pedal went to the floor" (Tr. 60). This corroborates the
inspector's testimony that after Mr. Ray started the jeep, he
moved and depressed the brake pedal, and that the pedal went to
the floor and the jeep coasted to a stop.

 Although Mr. Ray testified that the jeep "had brakes" when

he drove it approximately two weeks prior to the inspection, and
that the brake pedal went "halfway down", the fact remains that
at the time the inspector observed the brakes with Mr. Ray behind
the wheel, the brake pedal went to the floor and would not stop
the vehicle when Mr. Ray moved it forward. Further, although Mr.
Schiappa testified that the jeep brakes were in "good shape" and
that there were "no problems as far as stopping" when the

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jeep was originally driven to the pit prior to the inspection, he
conceded that he did not drive the jeep, did not know how far the
pedal went to the floor, and that he had no personal knowledge of
the condition of the brakes.

 The evidence in this case establishes that the jeep was

equipped with a parking brake, but for some unexplained reason
the brake could not be activated. Although section 77.1605(b),
only requires mobile equipment to be equipped with a parking
brake, and has no specific requirement that the brake be adequate
or serviceable, I conclude and find that the intent of the
standard is to insure the margin of safety intended by the
installation of the parking brake on the equipment, and that any
reasonable application of the standard requires that a parking
brake be maintained in serviceable and functional condition. See:
Thompson Coal & Construction, 8 FMSHRC 1748 (November 1986);
Turner Brothers, Inc., 6 FMSHRC 1219, 1253 (May 1984). Further,
in Wilmot Mining company, 9 FMSHRC 684 (April 1987), in affirming
a judge's finding of a violation of section 77.1605(b), the
Commission stated as follows at 9 FMSHRC 688:

      To prove a violation of this standard, however, the
      Secretary is not required to elaborate a complete
      mechanical explanation of the inadequacy of the brakes.
      A demonstrated inadequacy itself may be sufficient. * *
      * Whatever the precise cause of the braking defect, the
      evidence amply supports the judge's finding that the
      Terex was not "equipped with adequate brakes," in
      violation of the cited standard (emphasis added).

 In view of the foregoing, and based on a preponderance of

all of the testimony and evidence adduced in this case, I
conclude and find that the petitioner has established that the
cited jeep service brakes and parking brake conditions
constituted violations of the cited mandatory safety section
77.1605(b). Accordingly, the citations issued by Inspector Marker
ARE AFFIRMED.

Fact of Violation - Citation No. 3130676

 The respondent here is charged with a violation of mandatory

safety standard 30 C.F.R. 77.1606(c), because of the missing
jeep windshield wipers and inoperative wiper motors. Section
77.1606(c), states that "Equipment defects affecting safety shall
be corrected before the equipment is used".

 The respondent has not rebutted the uncontroverted evidence

that the jeep windshield wiper arms and blades were missing and
that the wiper motors were inoperative. However, during the
course of the hearing the respondent's counsel argued that there
is no evidence that the jeep was going to be driven in the rain

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on the day of the inspection (Tr. 79). Petitioner's counsel
argued that the jeep was available for use because the keys were
in the ignition and that it was in fact started. Counsel further
asserted that it was obvious that Mr. Ray was going to move the
jeep because he was inside it for the purpose of moving it in
order to make room for another pump. Under these circumstances,
counsel concluded that that there is an inference that the jeep
was driven (Tr. 78-79; 81).

 Although the jeep was "used" in the sense that it was parked

and blocked at the location where the pump was pumping water
until it stopped pumping and Mr. Ray and Mr. Schiappa were
preparing to tow it away, there is no evidence that the jeep was
ever driven with the missing windshield wipers and inoperative
wiper motors. I conclude and find that the missing windshield
wipers and inoperative motor "defects" would only "affect safety"
while the jeep was being driven with reduced visibility in
inclement weather or during a rain, rather than while it was
parked and blocked for any length of time while the pump was
operating. I further conclude and find that in order to establish
a violation there must be some credible evidence to establish, or
at least to support a reasonable inference, that the jeep was
driven with defective equipment which affected safety, and that
the respondent failed to correct the defective conditions before
allowing the jeep to be driven. On the facts and evidence
presented in this case, I conclude and find that there is
insufficient evidence to establish that this was the case.

 There is no evidence as to how long the windshield wiper

condition had existed prior to the inspection, and Mr. Marker
confirmed that he did not check any maintenance or other records,
and he apparently did not pursue this issue further. He stated
that if the jeep were not driven there would be no need for
windshield wipers. Mr. Marker confirmed that Mr. Sperlaza
acknowledged that he was aware of the brake problem, but there is
nothing to indicate that Mr. Sperlaza was aware of the windshield
condition.

 Although the evidence establishes that the jeep was driven

approximately two weeks days prior to the inspection, there is no
evidence that the windshield wipers were defective when it was
driven. The inspector's assumption that the jeep was going to be
driven out of the pit was based on the fact that the keys were in
the ignition. However, the respondent's witnesses testified
credibly that the jeep was going to be towed and not driven out
of the pit area. The inspector conceded that Mr. Ray never told
him that he was going to drive the jeep out, and he also
confirmed that the jeep had a tow bar attached to the front
bumper and that it was in fact towed away.

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The petitioner's conclusion that Mr. Ray was going to move
the jeep to make room for another pump is based on counsel's
assertion that Mr. Ray was inside the jeep. Counsel's conclusion
that this supports an inference that the jeep was driven is also
based on this asserted fact (Tr. 78-79; 81). However, after
reviewing the testimony in this case, I cannot conclude that it
clearly establishes that Mr. Ray was inside the jeep preparing to
drive it out of the pit area at the time the inspector first
observed the vehicle.

 Inspector Marker testified that he was sitting in his car

watching the mining operation when he first observed Mr. Ray
walking towards the jeep, and that when he (Ray) "went to get
in", Mr. Marker asked him what he was going to do, and Mr. Ray
told him that he was going to move the jeep out of the way
because another pump was being brought to the pit (Tr. 13). At
that point, Mr. Marker advised Mr. Ray that he wanted to inspect
the jeep, and Mr. Marker conducted his inspection of the brakes
while "the employee was in the jeep" (Tr. 13). Mr. Marker later
testified that the jeep was not started until he approached it
(Tr. 27; 31). Viewed in this light, I cannot conclude that Mr.
Marker's testimony establishes that Mr. Ray in fact drove the
jeep, or that it supports any reasonable inference that the jeep
was driven. Even if one could conclude that Mr. Ray intended to
drive the jeep, there is absolutely no credible evidence that he
did, and the inspector conceded this fact.

 In view of the foregoing findings and conclusions, I cannot

conclude that the petitioner has established a violation of
section 77. 1606(c). Accordingly, the citation issued by
Inspector Marker IS VACATED.

Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business

 The parties stipulated that the respondent is a small mine

operator and I find nothing to suggest that the payment of the
civil penalty assessments for the violations which have been
affirmed will adversely affect the respondent's ability to
continue in business.

History of Prior Violations

 The petitioner submitted a computer summary of assessed and

paid violations for the period February 15, 1988, through
February 14, 1990, and prior to February 15, 1988. The
information reflects that the respondent paid civil penalty
assessments in the amount of $1,634, for 24 violations issued
during the 2-year period in question, and that prior to February
15, 1988, the respondent paid $989 for 20 violations. There is no
evidence that the respondent has been cited for prior violations
of the same standards cited in this case. Based on

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the information provided, I cannot conclude that the respondent's
compliance history is such as to warrant any additional increases
in the civil penalties which I have assessed for the violations
which have been affirmed.

Good Faith Compliance

 The evidence establishes that the cited jeep was immediately

removed from the mine site and scrapped. I conclude and find that
the respondent rapidly abated the violations in good faith.

Negligence

Citation No. 3130674 (service brakes)

 Inspector Marker confirmed that he based his "high

negligence" finding on the fact that pit foreman Sperlaza
admitted that he was aware of the brake problem (Tr. 20). I take
note of the fact that in its answer of July 3, 1990, the
respondent admitted that the pit foreman was aware of the brake
problem, but took the position that the vehicle was always towed
to the pit and never driven. However, the evidence shows that the
jeep was at times driven as well as towed, and Mr. Schiappa
admitted that it was driven to the pit before the inspection.
Under the circumstances, I agree with the inspector's high
negligence finding, and it IS AFFIRMED.

Citation No. 3130675 (parking brake)

 Inspector Marker testified that he based his "moderate

negligence" finding on the fact that pit foreman Sperlaza had no
knowledge that the jeep parking brake could not be engaged.
However, he believed that the respondent, as the mine operator,
was responsible for having the equipment checked by a competent
person, and that all defects found are required to be reported so
that they may be corrected (Tr. 22). I conclude and find that the
violation resulted from the respondent's failure to exercise
reasonable care. I agree with the inspector's negligence finding,
and IT IS AFFIRMED.

Significant and Substantial Violations

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard", 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

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In order to establish that a violation is significant and
substantial, the petitioner must prove the following: (1) the
underlying violation of a mandatory safety standard; (2) a
discrete safety hazard - - that is, a measure of danger to safety
contributed to by the violation; (3) a reasonable likelihood that
the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984); United States Steel Mining Company, 7 FMSHRC
1125, 1129 (August 1985), and the cases cited therein. The
operative time frame for determining whether a reasonable
likelihood of injury existed "must take into account not only the
pendency of the violative condition prior to the citation, but
also continued normal mining operations". Halfway, Incorporated,
8 FMSHRC 8, 12 (January 1986).

 The respondent's counsel argued that the brake violations

were not significant and substantial because there was a minimal
mobile use of the jeep, it was unlikely that the parking brake
condition would result in an accident, the jeep was driven no
more than five miles an hour, at most for a distance of tenth of
a mile, and only two people were working in the pit area. Counsel
further pointed out that the evidence establishes that the jeep
was not going to be driven, that it was towed, and that the
chances of anything happening "were certainly more than remote"
(Tr. 81). The petitioner's counsel took the position that the
inspector's "S&S" findings were appropriate (Tr. 82).

Citation No. 3130674 (service brakes)

 Inspector Marker believed that a "permanently disabling"

injury was "highly likely" because he observed several large "off
road" haulage and dump trucks in operation at the time of his
inspection and if the jeep were taken out of the pit "with all of
this activity going on" it was highly likely that there would be
an accident due to the defective brake problems and lack of
control in stopping the jeep (Tr. 18). The defective brake
condition would contribute to "the severity of the event" because
the vehicle could not be stopped, and if an accident were to
occur, it was reasonably likely that it would result in a
permanent disabling injury. For these reasons, he believed that
the violation was "significant and substantial" (Tr. 19).

Citation No. 3130675 (parking brake)

 Inspector Marker believed that the inability to activate the

parking brake would "reasonably likely" result in an accident and
injury because of the inability to control or stop the vehicle.
However, he believed that the lack of a parking brake would only
involve the cited jeep rather than other vehicles because the
jeep could be stopped by running it into a berm provided on the
haul road or in the spoil area (Tr. 21). He did not believe that

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this violation was as serious as the service brake violation
because the vehicle backing into a berm or spoil pile without a
parking brake would probably or possibly only result in a "lost
work day or restricted duty" injury (Tr. 22). He believed the
violation was "significant and substantial" because "we have a
control problem which increases the possibility of something
happening" (Tr. 22).

 The credible testimony of the respondent's witnesses

establishes that the jeep in question was used to transport the
water pump to and from the pit, and that while the jeep was
parked the wheels were blocked with rocks. Although the jeep
could have been used to transport men and materials, I find that
this could only happen if the pump were unbolted and removed from
the cargo area. However, there is no evidence that the jeep was
ever used for anything other than transporting the pump, and the
inspector had never observed the jeep being driven, and he had no
reason to believe that the jeep was used routinely for anything
other than pumping water.

 The inspector confirmed that there was no probability of any

accident occurring in the pit area where the jeep and pump would
normally be located. He believed that the violations would be
significant and substantial only if the jeep were operated out of
the pit area and driven over the haul road. He confirmed that the
jeep would not normally be operated on the haul road, and it
would only be on the haul road when it was moved from one pit
area to another. However, the evidence establishes that the jeep
was equipped with a tow bar on the front bumper, and I am
persuaded that the evidence supports a reasonable conclusion that
although the jeep was driven to the pit area approximately two
weeks before the inspection, it was not routinely or regularly
driven on the haul road.

 The respondent's credible and unrebutted testimony, which is

supported in part by the inspector, establishes that if the truck
were driven, it was only driven a very short distance and at a
very slow rate of speed utilizing the low gear and clutch.
Further, when the jeep was parked, it was blocked with rocks, and
Mr. Schiappa's testimony that the jeep was always towed from the
pit to the shop if the pump were in need of repairs is
unrebutted. Mr. Ray's testimony that he had brakes when he last
drove the jeep two weeks before the inspection is also
unrebutted.

 Although the inspector observed other vehicular traffic on

the haul road at the time of the inspection, he had no reason to
believe that the jeep was driven on the haul road that day, and
there is no evidence that the jeep was exposed to any traffic
hazards that day. Based on the evidence presented, I can only
conclude that when the jeep was last driven, it was driven no
more than a tenth of mile at a speed of approximately five miles

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an hour. There is no evidence as to what the road or traffic
conditions may have been at that time, and given the fact that
water must obviously be pumped from the pit before the coal can
be extracted and hauled away, I believe one can reasonably
conclude that if the jeep is driven to the pit area this is done
early in the morning before full mining operations begin, and
before there is any other traffic on the road. I also believe
that it is reasonable to conclude that once the jeep reaches the
pit area, it remains in place for a relatively long period of
time while the pump is pumping water.

 In view of the foregoing, and after careful review and

consideration of all of evidence and testimony adduced in this
case, I cannot conclude that the petitioner has established by a
preponderance of the evidence that in the normal course of mining
operations it was reasonably likely that the cited brake
conditions would reasonably likely result in an accident or
injury of a reasonably serious nature. Under the circumstances,
the inspector's "S&S" findings with respect to these violations
ARE VACATED.

Gravity

 Although I have concluded that the violations were not

significant and substantial, since the jeep was a piece of mobile
equipment which was sometimes driven, and readily available to be
driven, I believe that the respondent had an obligation to
maintain the service brakes in an operable condition to preclude
any potential accident in the event the jeep were driven. Under
the circumstances, I conclude and find that the service brake
violation was serious.

 With respect to the parking brake violation, the inspector

conceded that the parking brake condition was not as serious as
the service brakes problem and he indicated that the terrain in
the pit area was level. I find no evidence that the jeep was ever
parked on an incline or that an emergency could develop over the
short distance that the jeep may have on occasion been driven.
Further, the evidence establishes that the jeep wheels were
blocked with rocks when it was parked. Under all of these
circumstances, I conclude and find that the parking brake
violation was non-serious.

                       Civil Penalty Assessments

 The petitioner's "special" civil penalty assessments are

based on certain "narrative findings" made by MSHA's assessments
office, including findings which stated that the cited jeep was a
"water truck being used along the haul roads of the pit area" and
"around the strip area"; that the violations "contributed to an
imminent danger of a serious haulage-equipment accident" because
"the truck was being used during rainy weather"; and that the

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defective parking brake "increases the likelihood of a runaway of
mobile-equipment accident". However, it is clear that I am not
bound by MSHA's proposed assessments, nor am I persuaded by
proposed assessment "findings" which have no evidentiary support.

 On the basis of the evidence adduced at the hearing in this

case, my findings and conclusions based on that evidence, and
taking into account the six statutory civil penalty assessment
criteria found in section 110(i) of the Act, I conclude and find
that the following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:

    Citation No.     Date        30 C.F.R. Section      Assessment

     3130674       2/15/90         77.1605(b)                 $150
     3130675       2/15/90         77.1605(b)                 $75

ORDER
1. Citation No. 3130676, February 15, 1990, citing an
alleged violation of 30 C.F.R. 77.1606(c) IS VACATED.

         2. The respondent IS ORDERED to pay civil penalty
         assessments in the amounts shown above for the two
         citations which have been affirmed. Payment is to be
         made to MSHA within thirty (30) days of the date of
         this decision and order, and upon receipt of payment,
         this matter is dismissed.

                                   George A. Koutras
                                   Administrative Law Judge