Highlands County Board of Commissioners

Read the official release (fmshrc.gov)

Plain-English summary

Highlands County Board of Commissioners operated the Charlotte County Shell Pit Mine, where MSHA cited an unguarded pump belt drive and a front-end loader parking brake that would not hold the machine on a grade. Judge George A. Koutras affirmed both citations, finding that the pump belt drive was a moving machine part that could cause injury if contacted and that the parking-brake test established a violation. He found moderate negligence for the guarding violation and low negligence for the parking-brake violation. The judge assessed civil penalties of $20 and $15, for a total of $35.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.14107(a) and 30 C.F.R. § 56.14101(a)(2)
• Outcome: Both citations were affirmed. The operator was ordered to pay $20 for the guarding violation and $15 for the parking-brake violation.
• Key point: A small operator's practice of keeping people away from an unguarded moving part did not replace the guarding requirement, and the parking-brake citation was supported by the inspector's credible test.

Full text (FMSHRC public release)

CCASE:
MSHA V. HIGHLANDS CTY. BOARD OF COMM.
DDATE:
19920210
TTEXT:

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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 91-660-M
Petitioner : A.C. No. 08-01139-05501
v. :
: Charlotte County Shell
HIGHLANDS COUNTY BOARD OF : Pit Mine
COMMISSIONERS, :
Respondent :

                           DECISION

Appearances: Michael K. Hagan, Esq., U.S. Department of Labor,
Office of the Solicitor, Atlanta, Georgia, for the
Petitioner;
J. Ross MacBeth, Esq., Sebring, Florida, 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 in
the amount of $40, for two alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. A hearing was held in Sebring, Florida, and
the parties waived the filing of posthearing briefs. However, I
have considered their oral arguments made on the record during
the hearing in my adjudication of this matter.

                            Issues

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

conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, and (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory 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,

30 U.S.C. 801, et seq.

   2.   Commission Fules, 29 C.F.R.     2700.1, et seq.

 3. Mandatory safety standards 30 C.F.R.           56.14107(a) and

56.14101(a)(2).

                         Stipulations

   The parties stipulated to the following (Tr. 5-6):

   1. The respondent is subject to the jurisdiction of the
   Act, the Secretary of Labor, and the Commission.

   2. The respondent is a small mine operator employing
   approximately two people at the subject mine site.

   3. The proposed civil penalty assessments will not
   adversely affect the respondent's ability to continue in
   business.

   4. The respondent's history of prior violations for the
   period February 14, 1989, through February 13, 1991, is
   reflected in an MSHA computer print-out, and it indicates
   that the respondent has no prior violations (Exhibit P-1).

   5. The two contested violations in this proceeding were
   timely abated in good faith by the respondent.

                          Discussion

 Section 104(a) Non-"S&S" Citation No. 3431917, issued on

February 14, 1991, cites an alleged violation of mandatory safety
standard 30 C.F.R. 56.14107(a), and the cited condition or
practice is described as follows:

   The belt drive was not guarded on the pit discharge
   pump in the pit area. As a rule employees do not go in
   this area while pump is running.

 Section 104(a) Non-"S&S" Citation No. 3431918, initially

issued on February 14, 1991, and subsequently modified on
April 15, 1991, cites an alleged violation of mandatory safety
standard 30 C.F.R. 56.14101(a)(2), and the cited condition or
practice is described as follows:

   The parking brake on the 950 Caterpillar front-end
   loader was not capable of holding the loader with its
   typical load on the maximum grade it travels.

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Petitioner's Testimony and Evidence

Citation No. 3431917, 30 C.F.R. 56.14107(a).

 MSHA Inspector J.J. Crisp testified that he inspected the

mine for the first time on February 14, 1991. He proceeded to
the pit area and encountered the dragline operator. While
standing at the top of the bank with the operator, Mr. Crisp
observed that the belt drive of the dewatering pump was not
guarded. The guard was laying in the walkway and the pump was
running and the belt drive was in motion. The unguarded drive
was "waist high to chest high", and Mr. Crisp believed that the
lack of a guard posed a hazard of someone loosing a finger or a
hand if they inadvertently contacted the belt drive pinch points
while it was running. He described the pinch points as the area
between the drive and the sheaves (Tr. 7-11).

 Mr. Crisp stated that the dragline operator told him that

the guard was off because he had to replace some belts, and that
pit foreman Gene Durrance told him that as a general rule
employees did not go to the pump area while it was running
(Tr. 12). Mr Crisp believed that if someone were next to the
unguarded drive he could possible be caught and hurt. However,
he took Mr. Durrance's word that no one is in the area unless the
pump is turned off, and that is why he determined that an injury
was unlikely and that the violation was not significant and
substantial (Tr. 13). He considered the respondent's negligence
to be "moderate to normal", and he confirmed that the violation
was abated and that the guard was on when he next returned to the
mine (Tr. 14).

 Mr. Crisp explained the procedure for aligning the belts

when new ones are installed and he stated that the belts are not
self-adjusting and someone has to adjust them. The operator can
determine whether the belts are adjusted properly by observing
the belts while they are running, and if they are misaligned,
"you could throw a belt or you could see misalignment
instantaneous and you have to do the job all over again"
(Tr. 15).

 On cross-examination, Mr. Crisp identified photographic

exhibit R-2, and he confirmed the location of the cited pump and
motor on a platform on the water. He stated that the pump motor
was turned off by a switch located on a switch box installed on a
pole at the top of the bank. He estimated that the switch was
approximately 20 feet away from a stairway leading down the
embankment, and that the stairway was approximately 15 to 20 feet
from a 15-foot walkway leading to the platform where the pump was
located. The platform holding the pump was approximately eight-
to-ten foot square (Tr. 17).

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Mr. Crisp agreed that there would be no hazard or danger
from the pump if anyone were in the pit and the pump was not
running. Mr. Crisp believed that the guard should have been put
back on as soon as the belt was turned on. However, if no one is
in the pit and the pump is not on, it would not be negligent
(Tr. 20).

 Mr. Crisp acknowledged that subsection (b) of the cited

standard provides an exception that does not require a guard when
the exposed moving part is at least seven feet away from a
walking or working surface. He confirmed that access is required
in order to maintain and check the pump, that two people work at
the pit, and they would maintain or check the pump as needed
(Tr. 22).

 In response to further questions, Mr. Crisp stated that the

pump was readily accessible and that there was no barrier or
locked gate preventing access to the platform area where the pump
was located. He characterized the platform area around the pump
as a "working platform", and he conceded that he did not measure
the platform (Tr. 25).

Citation No. 3431918, 30 C.F.R. 56.14101(a)(2)

 Inspector Crisp stated that he observed Mr. Durrance

operating the cited front-end loader on a slight incline at the
top of the levee coming out of the pit. He checked the backup
alarm and fire extinguisher and found them satisfactory. He told
Mr. Durrance that he wanted to check the service brakes.
Mr. Durrance applied the service brakes while the machine was
moving, and the brakes functioned properly and stopped the
machine (Tr. 36-37). Mr. Crisp stated that the machine was not
stopped completely when he asked Mr. Durrance to apply the
parking brake and then let off the service brakes. When he did,
the parking brakes would not hold the machine and he "rode freely
on the slight incline". Mr. Crisp confirmed that the brakes were
tested on a slight incline with an empty bucket, and that
Mr. Durrance told him that he thought the parking brake was
working (Tr. 36-38).

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Mr. Crisp confirmed that he made a determination that an
injury was unlikely because the service brakes were operable, and
if they failed, the operator (who had a seatbelt) could steer the
machine and bring it to a stop. However, if an injury did occur,
it would be "lost work days and restricted duty". He did not
consider the violation to be significant and substantial
(Tr. 40). He considered the negligence to be "moderate to
normal" because the operator is supposed to check his equipment
before the shift begins and he should have known of the
condition. Mr. Crisp stated that Mr. Durrance told him the
parking brake was adjusted, and on a subsequent inspection visit,
Mr. Crisp tested the parking brake and abated the violation.
Mr. Crisp confirmed that he initially cited a violation of
subsection (a)(3) of section 56.14101, but that his supervisor
subsequently modified it to reflect a violation of subsection
(a)(2) (Tr. 38, 41-42; 46-47).

 On cross-examination, Mr. Crisp stated that when he next

returned to the mine to abate the citation, he asked Mr. Durrance
to engage the parking brake and the machine did not move. In
response to a question as to whether he actually had Mr. Durrance
test the parking brakes or simply asked him whether or not they
worked, Mr. Crisp stated that "as I recall, I inspected it"
(Tr. 44). In response to further questions, Mr. Crisp stated
that the loader was used to load trucks, and that the loader
operator would not use the parking brake during loading.
However, he would use the parking brake on a ramp if he lost his
service brakes, and although the trucks are normally loaded in
flat areas, there are "dips and slight inclines" (Tr. 45-46).
Mr. Crisp further explained the initial testing of the parking
brake by Mr. Durrance as follows at (Tr. 48-50):

   A. No, sir. I checked it--he had come up out of the pit
   area to where he loads trucks. It was right on top of the
   levee on a slight incline and he stopped it in this area.
   That's where the test was performed.

   Q.   And it was empty?

   A.   It was empty.

   Q.   He had his service brakes on and the engine was running?

   A.   Right.

   Q. When he released the service brake was the transmission
   in neutral or drive or what?

   A.   In neutral.

   Q.   He released the service brakes--

   A.   The machine rolled.

   Q.   And it rolled.   How far did it roll?

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A. Well, he put his brakes on pretty quick.

Q. It's easier to pass the test if there's no load?

A. Right.

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Q. And if it won't hold it and it says it has to hold it on
that maximum grade, if you tested it on a slight grade is
that an easier test for the equipment to pass?

   A.   Yes.

   Q. So, in terms of what the standard requires, it failed to
   pass an even lower standard?

   A.   A minimal test, yes.

               Respondent's Testimony and Evidence

Citation No. 3431917. 30 C.F.R. 56.14107(a)

 Gene Durrance testified that he is employed by the

respondent county road and bridge department as a finish operator
at the Charlotte county shell pit operation. He confirmed that
photographic Exhibit R-2, depicts the pump which was cited by
Inspector Crisp on the day of his inspection. Mr. Durrance
stated that the guard is located at the top of the motor at the
belt drive. He stated that the platform is approximately ten
feet square and that the walkway from the platform to the shore
is approximately 20 feet long. The stairway leading from the end
of the walkway to the top of the bank is approximately 30 feet
long, and the distance from the top of the stairs to the post
holding the pump switch is 20 feet. The on-off switch is located
on the side of the electrical box mounted on the post, and the
master switch is on the front of the box on the same post
(Tr. 51-53).

 Mr. Durrance stated that once the pump motor is turned off

at the switch it cannot be turned on from the platform area, and
one would have to return to the switch pole to turn it back on.
He stated that he generally does the usual maintenance on the
pump motor, and there is a rule or procedure that "you don't go
there with the motor running" (Tr. 54). He confirmed that other
than repairs, there is no reason for anyone to go out on the
platform, and that no one goes there with the motor running
(Tr. 54).

 Mr. Durrance acknowledged that the guard was off the cited

pump motor belt drive at the time of the inspection. He
explained that he had taken the guard off in order to replace
three belts. The guard was left off while the shop was obtaining
the belts, and the next morning he installed the belts after
turning off the motor. He then left the platform and turned the
motor back on with the guard off because he wanted to let it run
awhile in order to check the tension, and if it required
adjustment he would have put the cover back on. However, before
he could finish and put the guard back on, he had to load some
trucks, and in the interim, the inspector arrived and saw that

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the guard was off and that the pump motor was running (Tr. 54-
55). He explained the procedure as follows at (Tr. 55-56):

 Q. In terms of procedure you turn the pump off or not when
 you went in there?

 A.   Off.

 Q. You turn it off, you go down in there and you said you
 replaced three belts; is that correct?

 A.   Yes, sir.

 Q. And then you have to go back out to turn it back on; is
 that correct?

 A.   Yes, sir.

      THE COURT: Excuse me just a second. Did you replace
      three belts? You said it had three belts.

 A.   Yes, sir.

 Q. Now, did you leave?    Did you turn it on and leave it on
 to check the alignment?

 A. The alignment was pretty well in line. All I had to do
 was just replace the belts and readjust the tension on the
 belt.

 Q. If the alignment was okay why would it be necessary to
 run the equipment for a little while before putting the
 guard back on?

 A. Just like a car. If you change a fan belt you run it a
 little while then you check it for tension. If you feel it
 needs to be tightened up some more--

 Q. So, it was to make sure the tension was right and if the
 belts were all loose you could tighten it back up?

 A.   Yes, sir.

 Q.   And then put the guard back on; is that correct?

 A.   Yes, sir.

 On cross-examination, Mr. Durrance stated that the pump

motor switch can be locked out by inserting a lock in the lever,
but that he doesn't use a lock and simply pulls the switch down.
He stated that there is no written rule or procedure that no one

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goes on the platform with the motor running, and that "I don't
like to go out there with all that electricity in the water"
(Tr. 57). He stated that the belt broke the day before the
inspector arrived, but that the pump continued to run with only
two belts while the guard was off the day before the inspection.
The new belts were put on at 7:30 a.m., the day of the
inspection, and the pump was turned off while he did the work.
No one else was in the area. After replacing the belts and
tightening them, the guard was still off, and he went ashore and
turned the motor back on and looked at the machinery from the
bank and "it ran fine". He then left to load a truck and the
inspector arrived at 10:30 a.m. The belts were running unguarded
for approximately three hours. After the inspector left, he
turned off the motor, checked the belt tension and found that it
required no more adjusting. He then replaced the guard and
turned the motor back on. He confirmed that he explained his
belt changing work to the inspector, but that "he said he already
saw it and had to write a citation" (Tr. 62-64).

 In response to further questions, Mr. Durrance stated that

there was no particular reason why he did not replace the guard
after he replaced the new belts, but that there are four bolts
which need to be removed or replaced when taking the guard on and
off. He further stated that if the trucks had not come in for
loading he would have finished with the belts and replaced the
guard, but he would have waited 15 to 20 minutes to make sure the
belt tension was correct. He told the inspector that he was
going to replace the guard as soon as he finished, but the
inspector left and did not know that he had replaced the guard
(Tr. 65-67).

 Louis Pollard, Jr., employed by the respondent as a dragline

operator at the cited pit in question, testified that he was
present when Mr. Crisp conducted his inspection on February 14,
1991. He stated that after Mr. Durrance learned who the
inspector was he asked him if there was anything wrong, and the
inspector informed Mr. Durrance that he could not run the pump
without a guard. Mr. Durrance offered to replace the guard, and
the inspector stated that he had already seen it (Tr. 86).
Mr. Pollard confirmed that he and Mr. Durrance are the only
persons who work at the pit, and that he has never been in the
pit alone with the pump motor running. He has been with
Mr. Durrance when pump maintenance was required, and the pump had
to be removed on two occasions for maintenance (Tr. 87).
Mr. Pollard stated that the ten foot platform where the pump is
located is only used for the repair of the equipment, and that at
the time of the inspection he was operating the dragline on the
other side of the pit and Mr. Durrance changed the pump belts
alone (Tr. 89).

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Citation No. 3431918. 30 C.F.R. 56.14101(a)(2).

 Mr. Durrance stated that after checking the reverse alarm

and horn, and with the loader on a slight incline downhill with
the engine running, Inspector Crisp told him "to put it in
neutral and pull out the parking brake. And the brake didn't
hold". The foot service brakes were good and they held the
machine, but the parking brake wouldn't hold the machine and he
had to stop it with the foot brakes (Tr. 68-69).

 Mr. Durrance stated that the terrain where he normally

operates the loader is usually level with a few pot holes, and he
explained that when the loader is initially started he must first
wait for air pressure to build up before the parking brake can be
automatically turned on, and the machine cannot be placed in gear
until the pressure is up and the brake is turned off. When the
machine is parked the bucket is lowered to the ground and the
parking brake is on. The parking brake is not used when the
loader is loading trucks on level ground (Tr. 70-71).

 Mr. Durrrance identified pages from the loader operating

manual (Exhibit R-1), including the procedures for testing the
parking brake, and he confirmed that the inspector did not
perform this test. He also confirmed that the inspector asked
him to apply the parking brake while the machine was moving, and
that this is contrary to the manual which states that the parking
brake should not be applied while the machine is moving except in
an emergency. After the inspector left, the brakes were adjusted
the next day and tested the same way as the inspector had
instructed him and "it worked fine and would stop the machine
while it was rolling" and it held according to the manual
instruction (Tr. 72-73).

 On cross-examination, Mr. Durance stated that while the pit

area was flat at the time of the inspection, the roadway which
led in and out was on an incline and the loader was used on that
road and was tested there (Tr. 73). He acknowledged that he did
not always follow the manual instructions before starting the
loader, and he explained the inspector's instructions which he
followed in testing the brakes (Tr. 74-77). He stated that after
the loader was stopped with the service foot brakes and in
neutral gear, the inspector "told me to let it--make it roll
again and then pull the parking brake" (Tr. 77). The subsequent
tests after the inspector left were made after the parking brake
was adjusted and the grease cleaned out (Tr. 78). When the
inspector next returned, he did not test the brake again and
simply asked if it had been repaired (Tr. 81). Mr. Durrance
confirmed that the manual is kept on the loader, but he did not
know whether the inspector knew this, and he did not show him the
manual (Tr. 83).

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Mr. Pollard confirmed that he was present when the loader
parking brake was tested, could hear what was going on, and he
described what he observed. He stated that the loader was on a
slight downhill incline and the inspector told Mr. Durrance "to
start rolling and put the parking brake on", and when he did, the
loader did not stop. Mr. Pollard stated that he was not involved
in the servicing of the parking brake and was not present when
the inspector returned to abate the citation (Tr. 90, 92).

 On cross-examination, Mr. Pollard stated that he was

standing next to the inspector, and that after the loader backup
alarm and horn were tested, the foot brake was tested first with
the engine running. Mr. Durrance then shut the machine off. He
was then told by the inspector to try the parking brake, and the
inspector did not tell Mr. Durrance to take his foot off the
service brake and let the machine roll. The loader was started
again, and the inspector told Mr. Durrance to put it in gear and
to apply the parking brake (Tr. 95-98).

 David Butler, employed by the respondent as a mechanic,

testified that he was instructed to go to the pit in question to
perform some repair work on the cited loader and that he first
met with Mr. Durrance who informed him "that an inspector had
come in and he said that the parking brake it needed to be
adjusted up" (Tr. 100) Mr. Butler stated that he adjusted the
brake bands and inspected the linkage from the air pod to the
brake pads, and found some grease on the outside of the drum.
This was normal leakage from the hydraulic hoses, and the grease
would not cause the brakes to malfunction. After making the
adjustments, he and Mr. Durrance tested the loader following the
same procedure as the inspector had previously instructed, and
when the parking brake was applied with the machine rolling, it
came to a stop. The test was performed on level ground at the
bottom of the pit and not on the pit access road (Tr. 101-102).

 Inspector Crisp was called in rebuttal by the petitioner,

and he confirmed that while he was aware of the loader manual
testing information, he did follow the manual testing procedure
and he stated that "we have no rule for testing parking brakes"
(Tr. 107). He stated that he tests the equipment wherever he
finds it. He had no doubt that he did not ask Mr. Durance to put
the loader in motion before applying the parking brake. He
stated that his procedure while testing a loader on a grade is
"to set the parking brake manually, then if it rolls there's no
use going through another test" (Tr. 108). He stated that when
Mr. Durrance applied the foot service brakes he was fully
stopped. He then asked him to put the loader in neutral and to
take his foot off the service brake and to apply the parking
brake, and the loader rolled (Tr. 109). He confirmed that he has
followed this test procedure for parking brakes seven or eight
hundred times in his career and that he has never asked the

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operator to put the machine in motion because "you can ruin the
pads" (Tr. 109-110).

 Mr. Crisp could not recall Mr. Durrance turning the machine

off and then on again before testing the parking brake. He
explained that the machine stopped after Mr. Durrance applied the
foot service brakes. Mr. Durrance then put the parking brake on
with his foot still on the service brake, and when he released
his foot from the service brakes, the machine started rolling.
At no time was the machine in motion while the parking brake was
applied (Tr. 115-117).

 With regard to the guarding citation, Inspector Crisp stated

that he had no reason to doubt Mr. Durrance's testimony
concerning the replacement of the pump motor belts. He confirmed
that since he had already observed the condition he felt
compelled to issue the citation, and that he would issue a
citation whenever he finds such an unguarded piece of moving
machinery in operation. If it were locked out, he would not
bother, but if it were simply switched off and not locked out, he
would still issue a citation (Tr. 113-114).

                 Petitioner's Arguments

 The petitioner asserted that the evidence presented in this

case establishes that the inspector observed that the pump motor
belt drive was in motion and not guarded, and that the test
performed by the loader operator established that the parking
brake was inoperable. Under the circumstances, the petitioner
concluded that the violations of the cited mandatory safety
standards have been established and that the proposed civil
penalty assessments are appropriate in view of the unlikelihood
of any injuries, the limited hazard exposure, and a moderate
degree of negligence (Tr. 117-118).

 With regard to the guarding citation, petitioner asserted

that the testimony establishes that there was a period of time
when the belt drive was operating without the guard attached, and
that the respondent's purported "rule of practice" was simply the
operator's habit of not going on the platform when the motor was
running and unguarded. Further, the petitioner asserted that in
the event of an emergency, "habits may perhaps go", and that the
intent of the standard is to protect individuals from their own
carelessness. Petitioner disagreed that the exception found in
subsection (b) of section 56.14107, applies in this case (Tr. 22,
29, 33-34, 119). The petitioner pointed out that the belt drive
was not locked out, and there was no barrier preventing anyone
from going to that location (Tr. 127).

 With regard to the loader parking brake citation, the

petitioner asserted that the inspector followed his normal
testing routine when he had the loader operator test the parking

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brake on a vehicle which was not in motion. Petitioner
maintained that the loader went into motion when the parking
brake was applied and it did not control the loader. The
petitioner further pointed out that the mechanic testified that
adjustments were made to the parking brake after it was tested,
and this supports the fact that adjustments were needed to be
made (Tr. 119).
Respondent's Arguments
With regard to the guarding citation, the respondent does
not dispute the fact that the guard was not on the moving pump
motor belt drive at the time Inspector Crisp initially observed
the equipment in operation. The respondent's defense is based on
an argument that the exception found in subsection (b) of
section 56.14107 applies in this case. In support of this
argument, the respondent asserted that the purpose of the
platform area around the pump motor was to provide access for
maintenance and repairs and that the only reason anyone goes to
that area is to service or repair the pump. If one were required
to stand seven feet away to repair the equipment, the exception
would never apply. Given the fact that no one is ever in the
area when the pump motor is running, the impossibility of any
injury because of the manner in which the pit is operated and
managed, and the fact that no one is ever there unless he were
servicing the machine while it was off, respondent concludes that
for the exception to have any reasonable meaning and application,
one must conclude that it clearly applies in this case and that a
violation has not been established (Tr. 26-28; 121, 125-126).

 Respondent further argued that the platform area is not a

working surface for any purpose other than to service the pump,
and counsel stated "If it doesn't apply under these circumstances
I can't imagine it ever applying" (Tr. 32). Respondent pointed
out that subsection (b) does not require any guard or any
particular restrictions on access, and it simply provides that
moving parts be a certain distance from a working surface
(Tr. 35). Further, respondent pointed out that the language of
the citation that "as a rule" employees do not go to the platform
area is erroneous in that it has been established that as a
matter of policy no one ever goes to the area while the equipment
is running (Tr. 120).

 With regard to the loader parking brake citation, respondent

asserted that the testimony suggests that the loader was not
retested after the citation was issued, and that the initial test
which the inspector supervised did not follow the manufacturer's
instructions. Respondent maintains that the loader parking brake
was tested while the machine was rolling, and there is no
standard to determine how fast it was required to be stopped
(Tr. 122). Respondent further argued that the test was conducted
on a slight incline, and MSHA has not proved that the parking

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brake would not hold the loader in accordance with the
manufacturer's design specifications or testing instructions.
Further, any adjustments made to the parking brake were made to
accommodate a rolling stop (Tr. 123).

                Findings and Conclusions

Fact of Violation.
Citation No. 3431918. 30 C.F.R. 56.14101(a)(2).

 The respondent here is charged with a violation of mandatory

safety standard 30 C.F.R. 56.14101(a)(2), because of the
alleged failure of the parking brake on the cited loader to hold
the machine as required by that regulatory standard. The cited
standard provides as follows:

 If equipped on self-propelled mobile equipment, parking
 brakes shall be capable of holding the equipment with
 its typical load on the maximum grade it travels.

 In Turner Brothers, Inc., 6 FMSHRC 1219, 1259 (May 1984),

and 6 FMSHRC 2125, 2134 (September 1984), I affirmed violations
of section 77,1605(b), for inadequate parking brakes on a coal
haulage truck and an endloader based on tests which consisted of
parking the equipment on an incline and setting the brakes to
determine whether they would hold. In both instances, the brakes
would not hold the equipment, and I concluded that the brakes
were inadequate. In the case of the truck, the inspector tested
the parking brake by instructing the driver to stop the truck on
a small incline and set the brake. When he did, the brake would
not hold and the truck rolled. In the case of the loader, the
inspector asked the driver to demonstrate the parking brake. The
driver set the brake and raised the machine bucket, and the
machine rolled.

 In Thompson Coal & Construction, Inc., 8 FMSHRC 1748

(November 1986), I affirmed a violation for a defective parking
brake on a Caterpillar front-end loader because the parking brake
would not hold the loader in place when the brake was set. The
inspector had the driver set the brake, and when the machine was
accelerated while in reverse gear, it moved backwards with the
brake set. Although I observed that the validity of testing the
effectiveness of the parking brake by operating the machine in
reverse gear on level ground was questionable, I considered the
fact that the operator conceded that the parking brake was
defective because certain parts needed replacement.

 In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980),

and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge
Melick and former Judge Cook affirmed violations for inadequate
brakes on haulage trucks based on tests conducted by the drivers
by driving the trucks on inclines to determine their braking and

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stopping capability. In the Medusa Cement case, the inspector
specified the testing method used to support his determination
that the brakes were inadequate. The inspector testified that
when the driver placed the vehicle in third and fourth gear,
placed his foot on the brake and depressed it to the lower limit
of travel and applied acceleration, the truck began to "creep".
The judge rejected the operator's contentions that the inspector
did not test the truck in a loaded position for stopping and
holding on a grade, and that there was no valid correlation
between the test performed and the requirement that a loaded
truck should stop and hold on any grade over which it had to
travel.

 The judge in Medusa Cement held that the respondent failed

to rebut the expert testimony of the inspector regarding the
adequacy of the brakes, and failed to establish that the test
yielded an inaccurate result. In response to the operator's
further contention that the tests could have resulted in damage
to the equipment, the Judge observed that at most, the evidence
relied on by the respondent "establishes a disagreement amongst
experts as relates to the proper method of testing brakes",
2 FMSHRC 823. The judge further concluded that the test
conducted by the inspector and his interpretation of the results
obtained sufficiently established a prima facie violation.

 In Island Construction Co., Inc., 11 FMSHRC 2448 (December

1989), Judge Broderick affirmed a violation of 30 C.F.R.
56.14101(a)(2) after finding that a front-end loader which wa
used on level ground had an inoperative parking brake. In IMC
Fertilizer, Inc., 11 FMSHRC 706 (April 4, 1989), the judge
affirmed two violations concerning inadequate service brakes on
two front-end loaders. The inspector tested the vehicles by
instructing the operators to start the loaders and drive forward
until he dropped his hand and then to apply the brakes. In both
instances, the vehicles continued to travel 7 to 8 feet after the
brakes were applied, and the operators stated that the brakes
felt "spongy". The first violation was abated after hydraulic
fluid was added to the brake reservoir, and when re-tested, the
vehicle stopped in 2 to 3 feet. The second violation was abated
after the brakes were adjusted, and when retested, the vehicle
stopped within two or three feet. Although Judge Broderick
agreed that the operator's contention that the addition of brake
fluid and the brake adjustments had no effect on the adequacy of
the brakes was not free from doubt, he nonetheless accepted the
inspector's findings based on his "extensive experience in the
industry and as a Federal inspector", 11 FMSHRC 708.

 In several other "brake testing" cases, violations for

inadequate brakes have been affirmed on the basis of an
inspector's observation that a cited truck was "pulling very hard
to the right", Mineral Explorations Company, 6 FMSHRC 329, 342
(February 1984); an inspector's observation that a cited truck

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was "slow to stop" after the brakes were tested on an incline and
the brakes would not hold the truck, Greenville Quarries, Inc.,
9 FMSHRC 1390, 1430 (August 1987); and a determination by an
inspector that a brake shoe was not making contact with the drum
because he could remove a piece of paper which he placed under
the drum with the brake depressed, Mineral Explorations Company,
6 FMSHRC 316, 322 (February 1984).

 In Wilmot Mining Company, 9 FMSHRC 684, 688 (April 1987),

the commission affirmed a judge's finding of a violation of
section 77.1605(b), for inadequate brakes on a Terex front-end
loader which was involved in a fatal accident. The judge's
finding was based on evidence which indicated that the brake
master cylinder and an auxiliary brake cylinder were low in brake
fluid, even though the brakelines, wheel cylinder and hydraulic
brake lines were intact, i.e., they had not leaked because of the
accident. When tested at operating speed, the loader would not
stop within the normal expected distances. Rejecting the
operator's contention that the evidence did not support the
judge's finding as to the cause of the inadequacy of the brakes,
the Commission stated in pertinent part 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 breaking
 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).

 I take note of the fact that subsection (b) of

section 56.14101, provides detailed instructions and procedures
for testing service brakes on self-propelled mobile equipment.
The only references to front-end loaders and parking brakes are
found in subsection (3)(i), which states that "Front end loaders
shall be tested with the loader bucket empty", and subsection
(3)(iii), which provides that "parking or emergency (secondary)
brakes are not to be actuated during the test" of braking systems
which are designed to bring the equipment to a stop under normal
operating conditions.

 In the instant case, the loader parking brake was tested on

a slight incline after the inspector observed it coming out of
the pit. The inspector testified credibly that the loader
operator would use the parking brake if he were parked on a ramp,
or if he lost his service brakes, and that there are dips and
inclines in the pit areas. Although the truck loading area was
usually flat, loader operator Durrance acknowledged that the then
existing roadway in and out of the pit was inclined and that the
loader traveled over that road. Dragline operator Pollard, who

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occasionally operated the loader, testified that he uses the
parking brake after he has stopped working or loading trucks, and
he characterized it as an "emergency brake" and "safety device"
(Tr. 98).

 The respondent's assertions that the citation should be

vacated because of the inspector's failure to retest the loader
before abating the citation and his failure to follow the
manufacturer's manual testing procedures are rejected. While it
is true that Mr. Crisp acknowledged that he did not follow the
manufacturer's manual testing instruction, I cannot conclude that
this renders the citation defective. I take note of the fact
that the manual calls for testing the parking brake on level
ground, and the cited standard section 56.14101(a)(2) requires
that a parking brake be capable of holding the equipment with its
typical load on the maximum grade it travels. Under the circum-
stances, I conclude and find that any test conducted to insure
compliance with the standard must take into account the normal
production or operating conditions under which the machine may be
used. In this case, the machine was tested on a slight incline
after the inspector observed it coming out of the pit.

 Inspector Crisp has served as an MSHA inspector for 16 years

and has conducted in excess of one thousand inspections.
Although he indicated that there is no fixed MSHA rule for
testing loader brakes, he testified credibly that he has followed
the same test procedures that he described in this case seven or
eight hundred times during his career as an inspector (Tr. 8,
109). In this case, the inspector determined that no further
tests were necessary after the initial test reflected that the
parking brake would not hold the loader with an empty load while
on a slight downhill grade. Since the empty loader failed to
pass this most minimal test, the inspector concluded that the
parking brake would not hold the loader with a typical load on
the maximum grade of travel.

 Loader mechanic Butler agreed that if a parking brake which

has been tested on level ground does not hold the equipment, one
can probably assume that it probably will not hold on an incline.
Under all of these circumstances, I cannot conclude that the
inspector's conclusions were erroneous or unreasonable.

 With regard to Mr. Crisp's alleged failure to reinspect the

loader before abating the citation, I find Mr. Crisp's testimony
that he recalled reinspecting the machine and asking Mr. Durrance
to engage the brake, and that it stopped when the brake was
applied, to be credible. In any event, Mr. Durrance confirmed
that he tested the brake after the grease had been cleaned off
and certain adjustments made, and that he followed the same
testing procedures as the inspector had initially instructed him
to follow at the time the citation was issued, and the brake
functioned properly. Mechanic Butler confirmed that he adjusted

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the parking brake and that he and Mr. Durrance followed the same
test procedure as the inspector had previously instructed and
that the brake functioned properly.

 In Tuscola Stone Company, 11 FMSHRC 447 (March 1989), the

mine operator was charged with a failure to correct a defect on a
haul truck used to haul rock from a pit to a stockpile. The
inspector checked the truck on a slight grade while it was empty
and found that the parking brake was inoperative. However, the
inspector conceded that the test he performed on the parking
brake, i.e., attempting to stop a moving truck with the parking
brake, was not the "standard test" used by MSHA, and that a
parking brake is not designed to bring a moving haul truck to a
stop. Under these circumstances, Judge Melick found that the
test utilized by the inspector was not appropriate to determine
the adequacy of the parking brake and he vacated that part of the
citation which cited the alleged defective parking brake.

 In the case at hand, the respondent asserted that the

inspector instructed the loader operator to test the parking
brake while the machine was in motion and that this was contrary
to the testing instructions found in the manufacturer's manual
and subjected the machine to possible damage. Mr. Durrance
testified that the inspector "told me to put the machine in gear,
make it roll down this little incline and put in neutral and pull
out the parking brake. And the brake didn't hold" (Tr. 68). He
further testified that when he applied the parking brake he was
in gear and in motion and that the inspector asked him to put the
parking brake on while the machine was moving (Tr. 72).

 Mr. Durrance conceded that he did not always follow the

loader instruction manual before starting the vehicle, that he
did not test the parking brake according to the manual
instructions prior to the inspection by Mr. Crisp, and that the
parking brake did not work when he tested it following the
inspector's instructions (Tr. 74, 82-84). Mr. Durrance testified
that before the testing of the loader parking brake began, he and
the inspector were on the ground next to the machine which was
parked on a grade, and that the engine was off, the bucket was
down on the ground, and the parking brake was on. After testing
the horn and backup alarm, Mr. Durrance stated that the third
test was "to put the machine in motion and turn on the parking
brake. Make the machine roll, put it in gear and make it roll
and put it in neutral and put on the parking brake". He stated
that what the inspector asked him to do next after the horn and
alarm were tested was to apply his service brakes, and that after
he stopped the loader with the service brakes, he placed it in
neutral gear and the inspector then "told me to let it--make it
roll again and then pull the parking brake"
(Tr. 75-77).

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Inspector Crisp denied that the loader was in motion when
the parking brake was applied by Mr. Durrance during the test. He
stated that in all of his years of testing parking brakes he has
never asked an equipment operator to put a machine in motion
before applying the parking brake because it could ruin the brake
pads. Although Mr. Crisp initially stated that Mr. Durrance
"wasn't stopped completely and I asked him to apply the parking
brake and then let off the service brakes" (Tr. 37), his
subsequent detailed and consistent testimony in response to
further questions on cross-examination and in rebuttal, which I
find credible, reflects that Mr. Durrance initially tested the
loader service brakes while the loader was moving, and that after
the machine was fully stopped, Mr. Durrance engaged the parking
brake, with his foot still on the service brakes, and when he
took his foot off the service brakes, the machine continued
rolling with the parking brake still engaged (Tr. 37-38; 48-50;
109-110; 115-117).

 Mr. Pollard, who was present when the loader was initially

inspected by Mr. Crisp, and operated by Mr. Durrance, testified
on direct examination that after testing the horn, the backup
alarm, and the foot brakes, the inspector "told him to start
rolling and put the parking brake on" (Tr. 91). Mr. Pollard
confirmed that Mr. Durrance was moving when he applied the
parking brake and that the loader did not stop (Tr. 92). On
cross-examination, Mr. Pollard reiterated that Inspector Crisp
told Mr. Durrance "to start it moving and then put on the parking
brake" (Tr. 95). However, in response to several follow-up
questions, Mr. Pollard confirmed that the service brakes were
tested first, and after they held the loader in place,
Mr. Durrance "shut it off" and the inspector "told him to try the
parking brake. Pull it up" (Tr. 96).

 Mr. Pollard confirmed that he had no knowledge that the

inspector told Mr. Durrance to take his foot off the service
brake and let the machine roll, but he stated that "The equipment
is loud and there's no way he could have told him without
shutting down that equipment to try the parking brake" (Tr. 96).
Mr. Pollard then testified that he actually observed Mr. Durrance
apply the service brake while the loader was moving, and when the
loader stopped, Mr. Durrance turned the machine off, cranked it
up again, and the inspector then told him "to put it in gear and
then put the emergency stop on" (Tr. 97). Mr. Pollard confirmed
that the "emergency stop" is the "parking brake", and he
indicated that if he were to test the emergency brake on his
automobile, he would not do it while the vehicle was rolling
(Tr. 98).

 After careful examination of all of the testimony, I find

Mr. Pollard's testimony to be somewhat contradictory. His initial
testimony lends support to Mr. Durrance's claim that the

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inspector instructed him to apply the parking brake while the
machine was in motion. However, Mr. Pollard's responses to more
probing questions support the inspector's version of the parking
brake test. Although the inspector could not recall that
Mr. Durrance turned the loader off between the time he tested the
service brakes and the parking brakes, Mr. Pollard's testimony is
otherwise consistent with that of the inspector.

 After careful consideration of all of the testimony, and

having viewed the witnesses during the course of the hearing, and
taking into account the inspector's unrebutted and credible
testimony concerning his many years of inspection experience, I
find him to be a reliable and credible witness and I accept his
contention that he did not instruct Mr. Durrance to place the
loader in motion before engaging the parking brake or that the
loader was moving when Mr. Durrance engaged the parking brake.
Accordingly, I conclude and find that the test administered by
the inspector which led him to conclude that the cited parking
brake would not hold the machine was a reasonably proper and
valid test, and one which the inspector had routinely followed
during his many prior inspections. Under the circumstances, and
in view of all of my findings and conclusions, I conclude and
find that the petitioner has established a violation by a
preponderance of the credible and probative evidence presented in
this case. The citation IS AFFIRMED.

Fact of Violation

Citation No. 3431917. 30 C.F.R. 56.14107(a).

 The respondent here is charged with a violation of mandatory

safety standard 30 C.F.R. 56.14107(a), because of an unguarded
belt drive on a pit discharge pump. The cited standard provides
as follows:

   56.14107     Moving machine parts.

 (a) Moving machine parts shall be guarded to protect
 persons from contacting gears, sprockets, chains,
 drive, head, tail, and takeup pulleys, flywheels,
 couplings, shafts, fan blades, and similar moving parts
 that can cause injury.

 (b) Guards shall not be required where the exposed
 moving parts are at least seven feet away from walking
 or working surfaces.

 The respondent does not dispute the fact that the guard was

off the cited running pump belt drive when the inspector observed
it on the day of the inspection, and the evidence establishes
that the pump was running without the guard in place for at least

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three hours prior to the inspector's arrival, as well as the day
prior to the inspection.

 The respondent established that the pump can only be turned

on and off by a switch located on a pole on shore. Although the
switching lever was equipped to accommodate a lock, the
individual who generally serviced the pump (Durrance)
acknowledged that he simply pulled the switch down to turn off
the pump and did not lock it out before servicing it or going to
the platform area. Further, although the respondent suggested
that its "policy and procedure" prohibited employees from being
on the platform while the pump was running, there is no evidence
that this policy was in writing or incorporated in any work
procedures given to employees. The "policy and procedure"
consisted of Mr. Durrance's "habit and practice" of not going to
the platform with the pump running, and his personal dislike for
being on a platform over water with electrical equipment in
operation.

 On the facts of this case, it would appear that the

respondent's pit operation is essentially a two-man operation,
and that Mr. Durrance performed many job tasks in addition to
servicing the pump. The fact that he had to leave the pump motor
unguarded and running while awaiting the belts and loading trucks
suggests that he was busy. In light of Mr. Durrance's
admissions that he did not lock out the pump before servicing it,
and that he did not always follow the loader manual instructions
before starting the loader, I suspect that these omissions may be
attributed in part to the fact that he had many jobs to perform.
Although I have no reason to disbelieve that Mr. Durrance always
turned off the pump before he actually serviced it, I have some
reservations and doubts with his assertions that he always
traveled back and forth from the pump switch location on shore to
the platform each time he turned the pump on to observe the belt
tension and adjustments, and that there was no need for him to be
on the platform to observe the running belt because he could see
from the top of the bank whether the belts had the proper tension
or were properly adjusted.

 Thompson Brothers Coal Company, 6 FMSHRC 2094 (September

1984), concerned an interpretation and application of guarding
standard 30 C.F.R. 77.440(a), which provided as follows:

 Gears; sprockets; chains; drive, head, tail, and takeup
 pulleys; flywheels; couplings; shafts; sawblades; fan
 inlets; and similar exposed moving machine parts which
 may be contacted by persons, and which may cause injury
 to persons shall be guarded. (Emphasis added).

 Judge Broderick rejected Thompson Brothers' argument that it

was virtually impossible for a person not suicidally inclined to

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contact the cited unguarded moving parts, and he accepted the
testimony of the inspector that the unguarded parts were
accessible and might be contacted by persons examining or working
on the equipment. In affirming Judge Broderick's decision, the
Commission stated as follows at 6 FMSHRC 2097:

 The standard requires the guarding of machine parts
 only when they "may be contacted" and "may cause
 injury." Use of the word "may" in these key phrases
 introduces considerations of the likelihood of the
 contact and injury, and requires us to give meaning to
 the nature of the possibility intended. We find that
 the most logical construction of the standard is that
 it imports the concepts of reasonable possibility of
 contact and injury, including contact stemming from
 inadvertent stumbling or falling, momentary
 inattention, or ordinary human carelessness. In
 related contexts, we have emphasized that the
 constructions of mandatory safety standards involving
 miners' behavior cannot ignore the vagaries of human
 conduct. See, e.g., Great Western Electric, 5 FMSHRC
 840, 842 (May 1983): Lone Star Industries, Inc., 3
  FMSHRC 2526, 2531 (November 1981). Applying this test
 requires taking into consideration all relevant
 exposure and injury variables, e.g., accessibility of
 the machine parts, work areas, ingress and egress, work
 duties, and as noted, the vagaries of human conduct.
 Under this approach, citations for inadequate guarding
 will be resolved on a case-by-basis.

 In Leblanc's Concrete & Mortar Sand Company, 11 FMSHRC 660

(April 1989), I vacated a citation for an alleged violation of
guarding standard 30 C.F.R. 56.14001, which contained language
identical to the section 77,400(a) guarding requirement
considered by the Commission in Thompson Brothers Coal Company.
The factual setting in the Leblanc's Concrete case was virtually
identical to the facts presented in the instant case. Leblanc
was a very small sand operator who was cited for failing to guard
a belt drive on a "floating" fresh water pump which was located
on a 6 x 6 foot barge supported by floats approximately 20 to
30 feet from shore. The pump motor was activated by a switch
located in a plant on shore approximately 200 to 300 feet from
the barge, and any priming of the pump was done on shore. The
inspector believed that it would be unlikely that anyone would be
on the barge when the pump started from the plant, and because of
the location of the pump, the inspector did not believe that it
was likely that anyone would be exposed to a hazard. Leblanc
established that no one was required to be on the barge during
the normal operation of the pump, and although the pump may have
been serviced once a week, it was deenergized and shut down when
service was performed. If major repairs were required, the pump
was lifted out of the water with a cherry picker and taken ashore

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for repairs. Under these circumstances, I found that a violation
had not been established, and I vacated the citation for the
following reason (11 FMSHRC 678):

 I find no evidence to support any reasonable conclusion
 that there existed a reasonable possibility of anyone
 contacting the unguarded pump belt drive unit in
 question, and the petitioner has presented no evidence
 to establish that anyone would ever be near the belt
 drive while the pump was in operation.

 I take note of the fact that in the Thompson Brothers Coal

Company case, the Commission adopted its "likelihood of contact
and injury" test after analyzing the "may cause injury" language
of section 77.400(a). The comparable standard for surface metal
or nonmetal mines, including open pit mines, 30 C.F.R.
56.14001, contained the identical language found i
section 77.400(a), and it was in effect at the time of my
decision in Leblanc's Concrete & Mortar Sand Company. However,
section 56.14001, has since been revised and renumbered, and the
respondent has been charged with a violation of the newly
designated section 56.14107, which does not contain the language
which the Commission considered in Thompson Brothers Coal
Company, and which I relied on in vacating the citation in
Leblanc' Concrete and Mortar Sand Company.

 The present language found in the cited mandatory standard,

30 C.F.R. 56.14107(a), specifically and unequivocally requires
guarding for any of the enumerated moving machine parts, as well
as any similar moving parts that can cause injury if contacted.
The obvious intent of the standard is to prevent contact with a
moving part. Although the parties presented no specific evidence
with respect to the physical or technical characteristics of the
cited pump belt drive, the respondent does not dispute the fact
that the cited equipment was not guarded, nor has it asserted
that the equipment was not the kind covered by the standard. I
conclude and find that the cited pump belt drive was a moving
machine part within the meaning of section 56.14107(a), and based
on the unrebutted and credible testimony of the inspector,
contact by anyone with the unguarded belt drive in question could
have resulted in an injury.

 After careful review and consideration of all of the

evidence in this case, I conclude and find that it supports the
petitioner's contention that the cited moving machine part which
could have caused an injury if contacted by anyone was not
guarded. Although it is true that the pump was located on a
platform some 20 feet from shore, access to the stairway,
walkway, and platform where the pump was located were not
blocked, and the pump was positioned "waist high" within reach or
contact by anyone walking or standing next to it. Further, while
it may be true that no one is on the platform when the pump is

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running, and that it is turned off when maintenance is performed,
I conclude and find that these preventive measures may mitigate
the gravity and potential hazards against which the standard is
directed, but they may not serve as a defense to the violation.

 After further consideration of the arguments concerning the

application of the exception found in subsection (b) of the cited
standard, I agree with the petitioner's position that the
exception does not apply, and I reject the arguments of the
respondent to the contrary. I conclude and find that the
exception is clearly inapplicable on the facts of this case.
Under the circumstances, and in view of the foregoing findings
and conclusions, I conclude and find that the petitioner has
established a violation and the citation IS AFFIRMED.

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

 In conclude and find that the respondent is a very small

operator, and that the payment of the civil penalty assessments
for the violations in question will not adversely affect its
ability to continue in business.

History of Prior Violations

 The respondent has an excellent compliance record and has

not previously been cited with any violations of the Act.

Gravity

 The inspector concluded that any injuries resulting from the

violations were unlikely and he concluded that the violations
were not significant and substantial. I agree with those
determinations, and I conclude and find that the violations were
non-serious.

Negligence

 The Act imposes a high degree of care on a mine operator to

insure compliance with all mandatory safety standards and to
preclude injuries to miners. The inspector found a moderate
degree of negligence with respect to both of the violations. I
conclude and find that both violations were the result of the
respondent's failure to exercise reasonable care. I agree with
the inspector's moderate negligence finding with respect to the
guarding violation, and with respect to the parking brake
violation, I conclude and find that it was the result of a low
degree of negligence on the part of the respondent.

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Good Faith Compliance

 I conclude and find that he respondent demonstrated rapid

good faith compliance in correcting the cited conditions and
abating the violations.

                Civil Penalty Assessments

 Based on the foregoing findings and conclusions, and taking

into account the civil penalty assessment criteria found in
section 110(i) of the Act, I conclude and find that a civil
penalty assessment in the amount of $20 is reasonable and
appropriate for Citation No. 3431917 (guarding violation), and
that a civil penalty assessment in the amount of $15 is
reasonable and appropriate for Citation No. 3431918 (parking
brake violation).

                          ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

of $20 for section 104(a) Citation NO. 3231917, February 14,
1991, 30 C.F.R. 56.14107(a), and a civil penalty assessment of
$15 for section 104(a) Citation No. 3431918, February 14, 1991,
30 C.F.R. 56.14101(a)(2). Payment shall be made to the
petitioner (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

Distribution:

Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 339, 1371 Peachtree Street, NE., Atlanta,
GA 30367 (Certified Mail)

J. Ross MacBeth, Esq., 2543 US 27 South, Sebring, FL 33872
(Certified Mail)

/ml