Amax Coal Company

Plain-English summary

MSHA cited Amax Coal Company for coal and coal-dust accumulations around a conveyor belt at the Wabash Mine and later issued a failure-to-abate order under section 104(b). Judge Gary Melick found that Amax had cleaned the original accumulation before the later order was issued. Because the Secretary could not show that the condition described in the original citation remained unabated, the section 104(b) order was not legally valid. Order No. 4264060 was vacated.

Decision snapshot

• Cited provision(s): 30 C.F.R. § 75.400; 30 U.S.C. § 814(b)
• Outcome: Failure-to-abate Order No. 4264060 was vacated.
• Key point: A failure-to-abate order requires proof that the violation described in the underlying citation remained unabated when the order issued.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                        March 29, 1996

AMAX COAL COMPANY, : CONTEST PROCEEDING
Contestant :
v. : Docket No. LAKE 95-403-R
: Order No. 4264060
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Wabash Mine
Respondent : Mine ID 11-00877

                            DECISION

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corp., Pittsburgh, Pennsylvania for
Contestant;
Christine M. Kassak, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Chicago, Illinois
for Respondent.

Before: Judge Melick

 This case is before me pursuant to Section 105(d) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C., Section
801 et seq., the “Act,” and upon the Notice of Contest filed by
the Amax Coal Company (Amax) challenging a “failure-to-abate”
order issued by the Secretary of Labor under Section 104(b) of
the Act.

 At 11:30 on the morning of September 11, 1995, Inspector

Robert Stamm of the Department of Labor’s Mine Safety and Health
Administration (MSHA) issued Citation No. 4264057 to Amax under
Section 104(a) of the Act alleging a violation of the standard at
30 C.F.R. § 75.400 and charging as follows:

An accumulation of coal and coal fines was present
around the tail area of the #3 main West conveyor belt
and extending 60 feet outby. The coal measured 4 to 24
inches in depth and was also present inby the tail and
in the #34 crosscut with side. The belt was rubbing the
coal and heat was present on the tail structure. Also
float coal dust (black in color) was present on the mine
floor from #2 to 36 crosscut, including the adjacent
crosscuts.

 The cited standard provides that “coal dust, including float

coal dust deposited on rock-dusted surfaces, loose coal, and

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other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric
equipment therein.”
The citation also provided that these violative conditions
were to be abated by 4:00 p.m. that same day. No representative
of the Secretary appeared at the stated time, however, to
determine whether the conditions had, in fact, been abated.
Three days later, around 9:30 on the morning of September 14,
1995, the issuing inspector returned to the scene of the cited
violation and found that an accumulation existed within the same
area as originally cited in Citation No. 4264057. The Secretary
acknowledges that he is unable to prove that the accumulated
material found on September 14 was any part of the original
accumulation cited on September 11.1 In any event, Inspector
Stamm issued an “extension of time” for abating the condition he
found at 9:30 a.m. in a “subsequent action” form issued at 10:30
that morning. That form states as follows:

A portion of the coal was removed from the tail area
and for 40 feet outby of the #3 main West conveyor belt.
An extension of time is being granted to remove the
remaining coal from the tail area and 20 feet outby.

 Inspector Stamm returned to this location at 12:25 p.m. on

September 14 and, finding an accumulation, issued the section
104(b) order at bar. The order charges in relevant part that
“[a]fter a reasonable termination due date and an extension of
time, coal was still present under the tail area and extending 20
feet outby the #3 main West belt conveyor.” This order was
terminated 40 minutes later at 1:05 p.m.

 Amax apparently does not dispute that the accumulations

found by Inspector Stamm on September 11, 1995, constituted a
violation of the cited standard but maintains that those
accumulations had been removed, thereby abating the violation
before the accumulation found on September 14 was created. Amax
argues, therefore, that the September 14 Section 104(b) order was
improperly issued.

1
  The Secretary, as any litigating party, is bound by his

admissions at trial and cannot retract those admissions by simply
making contrary statements in a post-hearing brief. Any such
contrary statements are accordingly rejected. If, indeed, it was
subsequently discovered that the admissions were factually
incorrect, the appropriate remedy is by motion for a new trial or
similar motion stating appropriate grounds for relief.

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 When issuing a citation under Section 104(a) of the Act, the

inspector must “describe with particularity the nature of the
violation” as well as “fix a reasonable time for abatement of the
violation”. In addition, Section 104(b) of the Act provides as
follows:

If, upon any follow-up inspection of a coal or other mine,
an authorized representative of the Secretary finds (1) that
a violation described in a citation issued pursuant to
subsection (a) has not been totally abated within the period
of time as originally fixed therein or as subsequently
extended, and (2) that the period of time for the abatement
should not be further extended, he shall determine the
extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine
or his agent to immediately cause all persons, except those
persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that
such violation has been abated.

 When the validity of a section 104(b) order is challenged by

an operator, the Secretary bears the burden of proving that the
violation described in the underlying citation has not been
abated within the time originally fixed or as subsequently
extended. Mid Continent Resources, Inc., 11 FMSHRC 505, 509
(April 1989) In that case the Commission specifically held that
the Secretary establishes a prima facie case that a section
104(b) order is valid by proving by a preponderance of the
evidence that the violation described in the underlying section
104(a) citation existed at the time the section 104(b) withdrawal
order was issued. The operator may, however, rebut the prima
facie case by showing that the violative condition described in
the section 104(a) citation had been abated within the time
period fixed in the citation, but had recurred. See alsoMettiki
Coal Corp., 13 FMSHRC 760, 765 (May 1991).

 While the Secretary acknowledges that he cannot prove that

any part of the coal accumulation found on September 11
continuously existed until September 14, under the Mid Continent
decision he is apparently not required to prove that the original
violative condition continuously existed until the section 104(b)
order was issued. In any event, in this case the operator has
produced sufficient credible evidence to show that the original
accumulation cited in the section 104(a) citation had been
cleaned prior to the issuance of the extension and order on
September 14. In this regard it is undisputed that Foreman
Thompson assigned miners to clean the cited area after the order

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was issued on September 11 and that miners were continuing to
clean at 3:00 p.m. when Thompson left the section. After the
initial cleanup, the mine examiners made no entries in the
examination book concerning an accumulation for the afternoon
shift on September 11 or the following midnight shift on
September 12 (R-25, pp. 70, 72).2 While the examiner for the
midnight shift noted in the “Remarks” column that the tail should
be cleaned, this was not reported as a “violation or hazardous
condition” and on the next shift, the day shift for September 12,
no condition concerning accumulations or needing cleaning in the
area of the citation (tail area plus 60 feet) was noted
(R-25, p. 74). On the September 12 afternoon shift it is noted
on the record books that the tail to 50 feet outby needed to be
cleaned and this was addressed on the next shift (Tr. 57-8; R-25,
pp. 76-7). On the September 13 midnight shift, the tail and 75
feet outby were noted as needing cleaning and it appears to have
been cleaned on the next shift (R-25, pp. 78-9). This is
confirmed by the absence of a notation that the tail area needed
to be cleaned in the entry for the day shift on September 13
(R-25, p.80). On the September 13 afternoon shift, the mine
examiner noted that the tail and 100 feet outby needed to be
cleaned. This was addressed on the next shift, the September 14
midnight shift (Tr. 62, 64-5; R-24, pp. 2-3). In addition, the
examiner at the end of the midnight shift observed that the tail
area needed to be cleaned (not the 100 feet outby) (R-24, p.4),
and cleaning apparently occurred at the end of the shift.
(Tr. 63-4, 67-8).

 Within the above framework I find that the operator has

established that the condition cited on September 11 had been
abated before the issuance of the order on September 14. Under
the circumstances, the order was not issued within the legal
3
parameters of Section 104(b) and must be dismissed.

2
  Page references are to the copies of exhibits with

numbered pages as submitted with Respondent’s brief.
3
The Secretary’s conditional request in his post-hearing
brief for permission to amend his pleadings to modify the order
to a section 104(a) citation is rejected. A request to modify a
charging document is properly made by motion. See Wyoming Fuel
Co., 14 FMSHRC 1282, 1289 (August 1992) (Citing Cypress Empire
Corp., 12 FMSHRC 911, 916 (May 1990). It would also be
inappropriate to modify the 104(b) order to a 104(a) citationsua
sponte. The necessary findings and related criteria in issuing
104(a) citations are not set forth in the 104(b) order and the
operator has not been provided adequate notice. Consolidation

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                          ORDER

  Order No. 4264060 is hereby vacated.




                          Gary Melick
                          Administrative Law Judge
                          703-756-6261

Distribution:

Christine M. Kassak, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp.,
One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA
15219-1410 (Certified Mail)

\jf

Coal Co., 4 FMSHRC 1791, 1794-6 (October 1982).

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