Thompson Coal & Construction

Plain-English summary

Thompson Coal & Construction operated the River Mine. Judge George A. Koutras found that an end loader had a defective parking brake in violation of 30 C.F.R. 77.1605(b), but concluded that the evidence did not show a serious hazard or a reasonable likelihood of injury under the mine's actual operating conditions. He vacated the significant-and-substantial finding, modified the citation to a non-S&S violation, and assessed a $20 penalty. The judge also approved the operator's $42 settlement of a separate citation, for total payments of $62.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1605(b) and 77.410
• Outcome: Citation No. 2706002 was affirmed as a non-S&S violation with a $20 penalty, and Citation No. 2706004 was settled for $42.
• Key point: A defective parking brake supported a violation, but the S&S designation was vacated because the loader was parked on level ground, out of service, and no credible evidence showed likely exposure to a serious hazard.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) THOMPSON COAL
DDATE:
19861112
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 86-287
PETITIONER A.C. No. 46-06646-03505

     v.                                River Mine

THOMPSON COAL & CONSTRUCTION,
INC.,
RESPONDENT

                            DECISION

Appearances: Therese I. Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
James W. Thompson, President, Thompson Coal and
Contruction, Inc., Clarksburg, West Virginia, pro se.

Before: Judge Koutras

                    Statement of the Case

 This is a civil penalty proceeding initiated 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 $84
for two alleged violations of certain mandatory safety standards
found in Part 77, Title 30, Code of Federal Regulations.

 The respondent filed a timely answer and contest, and a

hearing was held in Morgantown, West Virginia, on August 27,
1986. The parties waived the filing of posthearing briefs.
However, I have considered their oral arguments made on the
record during the course of the hearing.

                            Issues

The issues presented in this proceeding are as follows:

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1. Whether the respondent violated the cited mandatory
safety standards, and if so, the appropriate civil penalties
to be assessed for those violations based on the criteria
found in section 110(i) of the Act.

     2. Whether the inspector's "significant and
substantial" (S & S) findings concerning the violations
are supportable.

     3. Additional issues raised by the parties are
identified and disposed of in the course of this
decision.

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95Ä164, 30 U.S.C. 801 et seq.

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

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

Stipulations

The parties stipulated to the following (Tr. 4Ä6):

     1. The subject mine is owned and operated by the
respondent, and the respondent is subject to the
jurisdiction of the Act and the presiding judge.

     2. The subject citations and terminations were
properly served by a duly authorized representative of
the Secretary of Labor upon an agent of the respondent on
the dates, times and places stated therein. They may be
admitted into evidence for the purpose of establishing
their issuance, but not for the truthfulness or relevancy
of any statement asserted therein.

     3. The parties stipulate to the authenticity of the
exhibits, but not to the relevance nor to the truth of
the matters asserted therein.

     4. The alleged violations were abated in a timely
fashion.

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5. The River Mine produced twenty-one thousand, seven
hundred and twelve (21,712) annual production tons in 1985,
and Thompson Coal & Construction, Incorporated, also produced
twenty-one thousand, seven hundred and twelve (21,712)
production tons in that year.

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

 With regard to the respondent's history of violations,

MSHA's counsel stated that the respondent was issued four section
104(a) "S & S" citations during the 24Ämonth period prior to the
issuance of the violations in this case, and that the respondent
has paid civil penalties in the amount of $170 for these
violations. Counsel agreed that the respondent has a good
compliance record (Tr. 7).

Bench Ruling

 Respondent proposed and agreed to make full payment in the

amount of $42 for contested Citation No. 2706004, January 30,
1986, 30 C.F.R. 77.410, and stated that it no longer wished to
contest the citation. The citation was issued because of an
alleged defective backup warning device on an end loader. I
treated this proposal by the respondent as a settlement proposal
pursuant to Commission Rule 30, 29 C.F.R. 2700.30, and it was
approved from the bench (Tr. 8). Testimony and evidence was then
received with respect to the remaining citation.

                            Discussion

 Section 104(a) "S & S" Citation No. 2706002, issued on

January 30, 1986, cites an alleged violation of 30 C.F.R.
77.1605(b), and the condition or practice is described as follows
(Exhibit GÄ1): "The caterpillar front-end loader, Serial No.
25K339 has a defective parking brake due to when the parking
brake is set, it will not hold the end loader in place. Located
on the job site. Larry Reall is the area foreman."

MSHA's Testimony and Evidence

 MSHA Inspector David D. Workman, testified as to his

background and experience, and confirmed that he conducted a
regular inspection of the respondent's mine on January 30, 1986,
and that three miners were there at the time (Tr. 13).

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Mr. Workman identified a copy of Citation No. 2706002, and
confirmed that he issued it because of a violation of mandatory
safety standard section 77.1605(b), which requires that parking
brakes be provided on any equipment being operated on the surface
areas of strip mines (Tr. 15).

 Mr. Workman stated that after beginning his inspection, he

observed the cited end loader "setting over to the side," and
spoke with the loader operator, a Mr. Bays. Mr. Workman stated
that the day was cold and that it had snowed. He described the
mine terrain as frozen, but containing ruts and soft mud caused
by equipment travelling through the mine surface areas. He stated
that work was being done in a pit area, and that the end loader
was "parked up and out of the pit area, over to the left." The
loader was not in operation, and its bucket was down on the
ground (Tr. 16).

 Mr. Workman testified that he requested Mr. Bays to start up

the end loader so that he could check it for safe operation. Mr.
Bays informed him that the parking brake was not functioning
properly and that he had reported the condition to foreman Larry
Reall, but that the condition was not repaired. Mr. Workman
confirmed that the loader was not tagged out, and Mr. Bays
started it up, and it was functional and not mechanically
disabled. Mr. Workman did not believe that a lowered bucket on
such an end loader would serve as a brake in the event it were
parked on a grade (Tr. 18).

 Mr. Workman confirmed that foreman Reall advised him that he

did not make a record of the defective brake condition. Mr.
Workman stated that he got into the loader operator's compartment
with Mr. Bays. The brake was set, and when Mr. Bays accelerated
the machine while in reverse gear, it moved backwards with the
brake set (Tr. 19). The machine was removed from service, a
record was made of the defective brake, and parts were ordered to
repair it. The abatement time was extended because of
difficulties in obtaining parts, but once the end loader was
repaired, Mr. Workman abated the citation (Tr. 20Ä22).

 Mr. Workman stated that the purpose of the parking brake is

to prevent the end loader from drifting if parked on a grade. If
the machine drifted, it could run into someone or a piece of
equipment. Three employees and a foreman were in the "immediate
area," and if the machine drifted and hit someone, it would
reasonably be expected to cause injuries or even death. Mr.
Workman also believed that it was reasonably likely that the end
loader could drift, and that this has

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occurred several times in work areas in MSHA District 3 (Tr. 21).

 On cross-examination, Mr. Workman testified that while he

has operated DÄ8 and DÄ9 dozers, he has not operated any larger
surface "high lifts" and is not familiar with the mechanics of
braking system. He also confirmed that he had no knowledge of the
mechanical operation of the particular parking brake in question
(Tr. 26Ä27).

 Mr. Workman confirmed that the end loader was not in

operation when he cited it, and that it was parked in a level
area with the bucket down. He looked at the "daily book" kept by
the loader operator, and found no record concerning the parking
brake (Tr. 27). He confirmed that except for the parking brake,
the rest of the braking system was functioning properly (Tr. 28).
Mr. Workman stated that when the loader is not in operation and
parked, the parking brake must be set in order to keep the
machine from moving in any direction. While the machine bucket
lowered and dug into the soft ground would hold a machine pointed
downhill, this does not satisfy the law (Tr. 29).

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

also cited another end loader at the same work site, and when he
returned the next day to abate that citation, he had the machine
tested on a steep elevated area, and when the parking brake was
set with the machine in neutral, it would not move. With regard
to the end loader cited in this case, Mr. Workman confirmed that
he tested it by having the operator operate the machine in
reverse, and then putting it in neutral to see if it would
continue to move (Tr. 31).

 Mr. Workman confirmed that at the time of the inspection, he

did not know whether or not the respondent intended to use the
end loader. However, if the machine is not tagged out or
dismantled, he assumes that it can be used and will inspect it
and issue a citation if he finds any defective conditions (Tr.
32). Mr. Workman conceded that it was unlikely that the machine
would move and strike someone from the location where he found it
parked. His concern was that the machine would be put in
operation with a defective parking brake, and if this were done,
one could reasonably expect an accident to occur (Tr. 36).

 Mr. Workman confirmed that his inspection of the pit area

was his first inspection of that site, and he stated that he was
familiar with strip mining operation. He stated that the pit had
only enough room for one end loader and a

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truck, and that work on the pit was being finished up in order to
move to another site. He observed other pieces of equipment which
were not operational parked "off to the left," and reiterated
that the cited end loader "was sitting on a very flat area, with
the bucket down" (Tr. 37). In response to further questions, he
stated as follows (Tr. 37Ä38):

Q. What I am driving at is: How do you know, or how did
you come to the conclusion, that there was a reasonable
likelihood here that there would be an accident? Is it
based on your experience, generally, about end loaders;
that they are sometimes parked in elevated areas and
sometimes you have runaways with parking brakes? Or is
there something specific about this operation?

A. No, sir. We have had, in the past, in different
operations where end loaders were found in areas--in
elevated areas, where they would drift, and come into
other equipment. And this is from different work sites,
and even surface areas of underground mines. It's not
uncommon to find Mack packs or end loaders working in
surface areas of underground mines.

Q. Okay.

A. It's quite common toward our inspections.

Q. Now, if Mr. Thompson can establish in this case that
he has a nice little tidy parking lot, paved area,
where he puts his end loaders all of the time, and if
he can establish, for example, that they're never
parked in elevated areas or on ramps, and once they
have finished their business in the pit, they are
simply taken out and parked someplace in a level area,
would your opinion change as to whether there would be a
likelihood of an injury in this case?

A. No, sir.

Q. Your opinion would be the same?

A. Yes, sir.

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Q. Based on your experience?

A. Of accidents that are recorded and accidents that
have occurred throughout our industry.

Respondent's Testimony and Evidence

 Junior L. Bays testified that he is employed by the

respondent as an end-loader operator, and has been so employed
for 17 years. He confirmed that he was the operator of the end
loader inspected and cited by Inspector Workman on January 30,
1986. He stated that the end loader was not in operation and had
been parked for 3Ädays prior to the inspection. He confirmed that
he advised the mine superintendent that the loader had defective
brakes and that he also made an entry to this effect in a
personal log book. Mr. Bays did not know whether parts had been
ordered to repair the machine, and he confirmed that he never
attempted to operate the machine after the superintendent told
him to park it (Tr. 40Ä41).

 Mr. Bays stated that if the loader engine were shut off, all

four wheels will lock and it would be impossible to move the
machine, regardless of whether it were parked on the level or on
a slope. He explained that the machine radiator blew one day, and
when attempts were made to move the machine while hooked to a
dozer with a cable, the machine would not move. Mr. Bays
confirmed that he had the keys to the loader in his pocket, and
was told not to run it (Tr. 42). He earlier testified that the
superintendent said nothing to him about not running it, and
simply told him to park it (Tr. 41).

 Mr. Bays stated that the most effective braking for the

loader occurs when it is operated in the forward mode, and that
operating it in reverse "is next to no brakes at all" (Tr. 43).
He confirmed that the machine had a good foot brake, and that if
left with the engine shut off and the parking brake on, the
machine cannot be moved (Tr. 43). He also confirmed that because
of the cold day the only piece of equipment operating on the day
of the inspection was a "275 Michigan" (Tr. 43).

 On cross-examination, Mr. Bays confirmed that on the day in

question, he parked the machine on the level with the bucket
down, and he had the key in his pocket so that no one else could
operate it. He gave his daily log book to Mr. Reall, and
confirmed that he had entered a notation "No

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parking brake" in the book, but Mr. Reall did nothing about it
other than to tell him to park it (Tr. 46).

 Mr. Bays stated that the purpose of the parking brake is to

serve as a safety device if the loader is parked on a grade.
Although the parking brake helps to hold the machine while on a
grade, if the machine is on a 10 or 12 percent grade and operated
in gear, it will still move, even with the parking brake set (Tr.
47). The machine cannot be moved with the engine off and all four
wheels locked, and the foot brake will hold the machine when it
travels in reverse (Tr. 49).

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

first discovered the defective parking brake when he was
operating the loader in the pit stripping away the dirt in
preparation for loading out the coal. He explained that a buzzer
signal device on the machine alerted him to the fact that the
parking brake was defective and that this occurred 3 days before
the inspection. He further explained that certain disks and
plates had to be ordered to repair the parking brake. When he
discovered the condition he was told to take the machine out of
service and park it, and that is what he did (Tr 50Ä51). Once the
machine was repaired, he intended to use it again (Tr. 52).

 Mr. Bays stated that the pit was only large enough to permit

the operation of two end loaders, but that no trucks enter the
pit while he is there. Once the coal is reached in the pit, it is
loaded out by an end loader and loaded onto trucks which are out
of the pit. However, a truck would enter the pit if the pit were
large enough, but in this instance there was only enough room for
one end loader in the pit, and he would not have used the end
loader in question in the pit (Tr. 53). At the end of the day, he
would fuel the loader, grease it, and take it out of the pit and
park it on good solid level ground (Tr. 54).

MSHA's Arguments

 In closing oral argument, MSHA's counsel asserted that the

evidence adduced in this case establishes that the cited end
loader was parked on the respondent's mine site, and had the
vehicle been parked on a grade, it could have moved as a result
of the malfunctioning parking brake, and could have struck
employees working in the area. Counsel asserted that one employee
was exposed to this hazard (Tr. 56).

 In further support of her case, MSHA's counsel cited a

decision by former Commission Judge John Cook in MSHA v.

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Middle Kentucky Construction, Inc., 2 MSHC 1044 (1980), 2 FMSHRC
2589, September 12, 1980, in which Judge Cook affirmed a similar
violation for a defective parking brake on a truck and an end
loader. Judge Cook rejected an affirmative defense advanced by
Middle Kentucky, similar to the one in this case, that the cited
equipment had been removed from service prior to the inspection.
In rejecting this defense, Judge Cook relied on the Commission's
decision in Eastern Associated Coal Corporation, 1 MSHC 2209,
October 23, 1979, holding that the mere placement of a danger tag
on a piece of equipment and permitting it to remain in the mine's
active workings, was insufficient to render the machine "removed
from service" within the meaning of the Act. In Eastern
Associated Coal, the Commission stated as follows at 1 MSHC 2210:

     It is undisputed that the inoperable parking brake
was a violation. For a violation such as this, there are
two basic ways to abate--repair or withdrawal from
service. Assuming that the jitney could not have been
repaired safely in the time set for abatement, the
question in this case is whether a danger tag alone
constitutes withdrawal from service. We hold that
tagging the jitney was not sufficient to withdraw the
jitney from service because the danger tag did not
prevent the use of the defective piece of equipment.
The jitney was still operable and the danger tag could
have been ignored. To abate under these circumstances,
the jitney should have been made inoperable. There is
no suggestion in the record that the jitney could not
have been rendered inoperable safely, thus eliminating
the danger posed within the abatement period.

 On the facts of the instant case, MSHA's counsel pointed out

that the end loader was not tagged out, and nothing prevented the
actual use of the equipment since the operator had the keys in
his pocket. Although the respondent may have established that the
operator was directed not to use the end loader, counsel
suggested that a breakdown in communication could result in a
miner remaining unapprised of respondent's decision to remove the
equipment from service. Counsel also pointed out that in the
Middle Kentucky Construction case, Judge Cook ruled that the term
"parking brake" as used in the standard, referred to a braking
system separate and independent from any service or emergency
brakes on the front-end loader (Tr. 55Ä58).

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Respondent's Arguments

 Respondent argued that the cited end loader was taken out of

service and parked 3Ädays prior to the citation, and that no one
but the operator had the key. Respondent asserted that it only
works one shift and that Mr. Bays was the only end-loader
operator, and he had the key in his possession. He parked the end
loader on level ground, and since the automatic braking system he
described had taken over, the end loader was rendered unmovable.
The respondent also pointed out that any vehicle with the parking
brake set will move in reverse if placed in reverse gear, but
will not move forward. Assuming it is parked on a down grade, the
parking brake will in all probability hold it, but if it were
parked so that it could run backwards on the same grade, it
probably would not. The respondent also suggested that the cited
standard only required that the end loader be equipped with a
parking brake, and does not state that it must be an operating
parking brake. The respondent also pointed out that the parking
systems on trucks are different from braking systems on end
loaders and "high lifts" (Tr. 59Ä60).

                     Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 77.1605(b), because of the defective
parking brake on an end loader. 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."

 The evidence adduced in this case establishes that the cited

end loader was not equipped with an adequate parking brake and
that the brake was defective and in need of repair at the time it
was inspected and cited by Inspector Workman. Although one may
question the validity of testing the effectiveness of the parking
brake by operating the machine in reverse gear on level ground,
the respondent here concedes that the parking brake was defective
because the loader operator was alerted to this fact when the
alarm sounded, and he confirmed that certain brake disks and
plates needed replacement.

 The respondent's suggestion that section 77.1605(b) only

requires that an end loader be equipped with a parking brake,
without the necessity for maintaining it in a serviceable or

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safe condition is rejected. Although the language of the standard
implies that brakes other than parking brakes are to be adequate,
I believe the clear intent of the standard is to insure that all
braking systems on such a piece of equipment be maintained
serviceable and functionable so as to insure the margin of safety
intended by the installation of these braking systems. Further,
since the standard is obviously intended for the protection of
the miners, any other interpretation would be contrary to the
intent and purposes of the Act. In this case, the loader operator
conceded that the purpose of the parking brake is to serve as a
safety device when the machine is parked on a grade.

 The unrebutted evidence in this case establishes that the

respondent took the end loader out of service and parked it on
level ground when the operator discovered the defective parking
brake condition. The respondent's suggestion that it may avail
itself of this voluntary withdrawal of the equipment as a defense
to the citation is rejected. The facts reflect that the end
loader was not tagged out, nor was it rendered inoperable. Even
if it were tagged out, the respondent may not avail itself of
this fact as an absolute defense to the citation, and my
suggestion during the course of the hearing that it may was in
error (Tr. 63Ä64). The case law as enunciated in the Middle
Kentucky Construction and Eastern Associated Coal Corporation
cases, supra, is to the contrary. In Eastern Associated Coal, the
Commission ruled that even though the equipment was tagged out,
it was not rendered inoperable and the danger tag could have been
ignored.

 Although the facts in the instant case reflect that the

end-loader operator was the only person with the key, was clearly
aware of the defective brake, and testified that he would not
have attempted to use the end loader until it was repaired, the
fact remains that the machine was not rendered inoperable until
such time as the parts could be ordered and repairs made. The
unrebutted evidence establishes that the foreman did nothing to
immediately order parts or attempt to repair the machine before
the inspector found it. The inspector found no evidence that the
machine was dismantled or disabled (Tr. 18). Although the
respondent presented unrebutted evidence that the machine, with
its engine shut down, effectively resulted in the locking of all
four wheels, thus rendering the machine immovable, in light of
the Commission's holding in Eastern Associated Coal Corporation,
I cannot conclude that this fact rises to the level of rendering
the machine inoperable.

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In view of the foregoing, I conclude and find that MSHA has
established a violation of section 77.1605(b), by a preponderance
of the credible evidence adduced in this case, and the violation
IS AFFIRMED.

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

 On the basis of the stipulations by the parties, I conclude

and find that the respondent is a small mine operator and that
the civil penalty assessed for the violation in question will not
adversely affect its ability to continue in business.

History of Prior Violations

 The record establishes that the respondent paid $170 in

civil penalty assessments for four section 104(a) citations
issued during the 24Ämonth period prior to the issuance of the
contested citation in this case. I conclude and find that the
respondent has a good compliance record, and this is reflected in
the civil penalty assesment for the violation which has been
affirmed.

Good Faith Abatement

 The parties have stipulated that the violation was abated in

good faith by the respondent. I adopt this is my finding and
conclusion on this issue, and it is reflected in the civil
penalty assessment.

Negligence

 There is no evidence in this case that the respondent or the

end-loader operator continued to operate the machine once aware
of the defective brake condition. The unrebutted testimony by the
respondent reflects that the loader operator first became aware of
the condition while operating the machine, and that he
immediately notified his foreman who instructed him to take the
machine out of service and park it. MSHA presented no evidence
that the respondent should have been aware of the condition prior
to the operator using the machine, or that it failed to inspect
or test the brake before allowing the operator to run the
machine. Although foreman Reall was made aware of the brake
defect after it was discovered, there is no evidence that he had
prior knowledge of the defect, nor is there any evidence of any
attempts to use the machine after the operator took it out of
service. Under the circumstances, I cannot conclude that the
respondent was negligent.

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Gravity

 On the facts of this case, I cannot conclude that the

violation in question was serious. MSHA has presented no credible
evidence to support its conclusion that one miner was exposed to
a hazard resulting from the defective parking brake. Although I
agree that if someone is struck by a piece of free rolling
equipment he would likely be injured, the record in this case is
devoid of any evidence that anyone was ever placed in jeopardy by
the defective parking brake.

 I take note of the fact that in the Middle Kentucky

Construction case, the inspector who cited the truck and end
loader for defective parking brakes, found the equipment parked on
grades. Judge Cook also found that the equipment was parked in
close proximity to other equipment and mine personnel, and that
if it moved, it could have rolled down the incline thus exposing
miners and other equipment to a hazard. The facts in the instant
case establish that the end loader was parked on a level grade
and out of the pit with the wheels locked and the engine turned
off. The available key was in the pocket of the operator who was
aware of the defective braking brake and who took the machine out
of service and parked it until it could be repaired. The
inspector conceded that from the location where the machine was
parked, there was no likelihood of the machine even moving, let
alone rolling anywhere and striking someone (Tr. 35). The
inspector's conclusion of the existence of a potential hazard was
based on his presumption that the equipment would be operational
in the pit (Tr. 35).

 Inspector Workman conceded that his inspection on January

30, 1986, was the first time he had inspected the site, and that
his citation was not based on any specific operational procedures
at the site in question (Tr. 37). His conclusion that a hazard
existed, or was likely to exist had the machine been in operation
with a defective parking brake, was based on his knowledge of
other mine sites where equipment on elevated areas were known to
drift free and strike other equipment, and from recorded
incidents industry wide (Tr. 37Ä38).

 MSHA presented absolutely no credible evidence to suggest

that the respondent's end loaders are ever parked on elevated
grades in proximity to any equipment or miners. The loader in
question was parked on level ground, with its bucket down, with
the engine off and all four wheels locked. The loader operator
testified that his usual and normal procedure at the
end of the work shift is to take the end loader out of the pit
and park it on level ground with the engine off, and MSHA has not
rebutted this fact. Further, the loader operator's unrebutted
testimony is that no trucks actually enter the pit for loading,
and that the end loader comes out of the pit to load the trucks.
In the instant case, he testified that the pit was only large
enough to accomodate one end loader, and he would not have used
his loader in the active pit. The inspector confirmed that this
was the case (Tr. 37).

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Although Inspector Workman stated that the terrain at the
mine included up-and-down grades, he conceded that any conclusion
concerning a hazard from a defective parking brake would depend
or where the end loader would be operated and where it would be
parked (Tr. 20). On the facts of this case, I find no credible
evidence to support any conclusion that any of the respondent's
end loaders are ever parked, operated, or stopped on grades
requiring the use of the parking brake.

Significant and Substantial Violation

 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).

 In Mathies Coal Co., 6 FMSHRC 1, 3Ä4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

     In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (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.

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In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129,
the Commission stated further as follows:

     We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574Ä75
(July 1984).

 Incorporating by reference my gravity findings, and applying

the principles of a "significant and substantial" violation as
articulated by the Commission in the aforementioned decisions in
terms of continued normal mining operations, and in the absence
of any credible evidence or facts to support any conclusion that
the defective parking brake in question could contribute to a
hazard, I cannot conclude that MSHA has established that there
was a reasonable likelihood that an accident or injury would
occur. Accordingly, the inspector's "significant and substantial"
finding IS VACATED, and the citation is modified to reflect a
non-"S & S" violation.

                   Civil Penalty Assessment

 In view of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude that a civil penalty assessment in the amount of
$20 is reasonable for the citation which has been affirmed.

                            ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $20 for section 104(a) non-"S & S" Citation No.
2706002, January 30, 1986, 30 C.F.R. 77.1605(b), and a civil
penalty assessment in the amount of $42 in settlement of section
104(a) Citation No. 2706004, January 30, 1986,

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30 C.F.R. 77.410. Payment is to be made to MSHA within thirty
(30) days of the date of this decision, and upon receipt of
payment, this proceeding is dismissed.

                      George A. Koutras
                      Administrative Law Judge