Martinka Coal Company

Plain-English summary

MSHA cited Martinka Coal after finding coal and float coal dust under a belt line and missing or frozen rollers that left the belt rubbing against its structure. The operator did not contest the underlying citations but challenged the section 104(b) withdrawal orders, arguing that the abatement period should have been extended and that the conditions had been corrected. Judge Avram Weisberger found that the inspector acted reasonably in denying more time and that some of the cited conditions remained when the orders were issued. He dismissed both contests.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.1725(a); 30 U.S.C. § 814(b)
• Outcome: The two section 104(b) orders were upheld and both contests were dismissed.
• Key point: An operator challenging a section 104(b) order must address whether the conditions described in the underlying citation remained when the order was 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

MARTINKA COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. WEVA 93-45-R
: Order No. 3720402; 10/26/92
:
SECRETARY OF LABOR, : Docket No. WEVA 93-46-R
MINE SAFETY AND HEALTH : Order No. 3720403; 10/26/92
ADMINISTRATION (MSHA), :
Respondent : Tygart River Mine
:
: Mine ID 46-03805

                          DECISION

Appearances: Thomas L. Clarke, Esq., Charleston, West Virginia,
for Contestant;
Glenn Loos, Esq., U.S. Department of Labor, Office
of the Solicitor, Arlington, Virginia, for
Respondent.

Before: Judge Weisberger

                   Statement of the Case

 These cases are before me base on an Application for Review

and Motion to Expedite filed by Martinka Coal Corporation
(Operator) on November 12, 1992, challenging the issuance of a
Section 104(b) Withdrawal Order. The Secretary (Respondent)
opposed the Motion to Expedite and in a telephone conference call
on November 13, 1992, with the undersigned and counsel for both
parties, argument was heard regarding Contestant's Motion to
Expedite. The Motion was granted and the case was set for
hearing on November 24, 1992, in Morgantown, West Virginia. At
the hearing Robert A. Blair, and David Kenneth Kincell, testified
for the Secretary. John Metz, David Kevin Conaway, and Joseph
Anthony Keener, testified for the Operator. After the hearing
was concluded the parties requested the opportunity to file
proposed findings of fact and memorandum of law two weeks after
receipt of the transcript of the hearing. This request was
granted and it was so ordered. The parties further indicated
that they did not wish to file any reply briefs.

 The transcript was received in the Office of the

Administrative Law Judges on December 3, 1992. On December 23,
1992, counsel for Contestant called the undersigned with the

permission of counsel for Respondent and advised that both
counsel had agreed to file briefs by December 31, if it was

amendable to the undersigned. The request was granted.

 Respondent filed a post hearing brief on December 24, 1992,

Contestant filed its brief on January 8, 1993.

                  Findings of Facts and Discussion

1. Introduction

   On October 21, 1992, Mine Safety and Health Administration
   (MSHA) Inspector Robert A. Blair inspected the four flyte belt
   line at the Operator's Tygart River Mine. He observed an
   accumulation of coal dust and float coal dust that had
   accumulated under the belt, belt drive, belt rollers and on the
   belt structure along the entire belt line. He also noted the
   existence of haystack forms, and the fact that at several points
   rollers were running in the accumulation. He issued a citation
   alleging a violation of 30 C.F.R. 75.400 which in essence,
   provides that, "coal dust, including float coal dust deposited on
   rock-dusted surfaces, loose coal and other combustible materials
   shall be cleaned up and not be permitted to accumulate in active
   workings, or on electric equipment therein." The Operator
   indicated at the hearing that it does not contest the fact of the
   violation as well as the allegations set forth in paragraph 8 of
   the citation.

   Blair discussed with Daniel Kevin Conaway, the Operator's
   Safety Manager for the Tygart River Mine, the time to be allowed
   for the Operator to abate the violative conditions. Blair
   allowed until October 26, 1992, for abatement. In essence,
   Conaway and Wesley Dobbs who works for Conaway, indicated that it
   would take about two days to clean and fix the beltline. On that
   date, Blair returned to the belt line in question. He indicated
   that although the most serious conditions were cleaned up, there
   was an accumulation of combustible material in the same location
   as was observed on October 21, 1992. He issued a Section 104(b)
   order which states as follows:

       An effort to totally abate the citation No.
   

   3107658 was not made. Conditions that still exist
   include was combustible materials still under the No. 4
   flyte tail piece area under the belt, also the
   combustible materials was still on the belt top rollers
   and bottom rollers in several locations along the belt
   outby 151, inby 145, inby 148 to 149 and 145 block
   outby their was haystack forms under the belt, at 139
   block inby the bottom rollers was running in muck, inby
   124 block bottom roller was running in muck. At No.
   133 block the belt was rubbing against the structure of
   the bottom roller. The belt is operating and no one
   was observed working on the condition this shift. [sic]

   In addition, on October 21, 1992, Blair observed several
   rollers missing as well as several broken rollers, and that the
   belt was rubbing against the belt structure. He concluded that
   the belt was not maintained in a safe condition and issued a
   Citation No. 3107659 alleging a violation of 30 C.F.R.
   75.1725(a). When Blair returned on October 26, 1992, the dat
   set for abatement of Citation No. 3107659, he observed frozen
   rollers. He noted that there were hangers missing. He also
   observed the belt rubbing against the belt structure.

   He issued a Section 104(b) order which states as follows:

       An effort to totally abate the Citation No.
   

   3107659 was not made. Conditions that still exist
   include frozen roller was still existing at the tail
   piece. 151 block outby to 152 top rollers was still
   bad. Inby 146 block the bottom roller was stuck, and
   the belt hanger was missing. 139 block inby belt
   hanger missing, 133 block inby the belt was rubbing the
   bottom roller structure, outby 124 block a frozen
   roller, the belt is operating and no one was observed
   working on the condition this shift. [sic]

   None of Contestant's agents stated that the abatement time
   for either citation previously issued on October 21, 1992, was
   too short. Nor did any of Contestant's agents request an
   extension of time to abate the violative conditions. Blair
   indicated he did not consider extending the abatement time,
   "Because I gave them adequate time in the beginning" (Tr.51)

II. Extension of the Time for Abatement

 Essentially it is Contestant's argument that Blair did not

consider extending the abatement, and that there were no hazards
posed to miners by the granting of an extension. Contestant, in
arguing that the 104(b) order was improperly issued, also refers
to its abatement efforts. Contestant cites the fact that 40 man-
shifts were expended in abatement efforts, and 60 tons of rock
dust were applied. I do not accept Contestant's argument for
the reasons that follow.

 Section 104(b) of the Federal Mine Safety and Health Act of

1977 ("the Act") provides, in essence, that a withdrawal order
shall be issued if an inspector finds that a violation described
in a previous citation has not been totally abated within the
period set for abatement, and "that the period of time for the
abatement should not be further extended".

 In issuing the two Section 104(b) orders at issue, Blair

indicated he did not consider extending the abatement time,
"Because I gave them adequate time at the beginning" (Tr.51).
The critical issue is thus whether Blair acted reasonably in not

extending the time for abatement (Peabody Coal Company, 11 FMSHRC
2068, 2100 (October 27, 1989) (Judge Koutras)).

 At the time the citations were written on October 21, 1992,

Blair asked the mine management how long they needed to abate the
violations. Management stated that two days should be enough
time. Blair then allowed five days, including a weekend, for
abatement.

 In addition, the Contestant's failure to timely correct the

violations posed hazards to miners. The combination of
combustible accumulations together with possible ignition sources
such as frozen rollers and the belt rubbing the structure of the
belt line, producing heat and friction, created a fire hazard
which could send smoke down onto the sections and trap men
working inby the fire. Dry and drying coal, and coal dust
present behind the tail roller and on the center rollers of the
belt line was in contact with the belt and rollers, and presented
a fire hazard.

 Hence, for all the above reasons, I conclude that Blair

acted reasonably in determining not to extend the time to abate
the violations previously cited on October 21.1

II. The validity of the Section 104(b) orders

 The Commission, in Mid-Continent Inc., 11 FMSHRC 505, at

509, held that when an operator challenges the validity of a
section 104(b) order,

  ...it is the Secretary, as the proponent of the order,
  who bears the burden of proving that the violation
  described in the underlying citation has not been
  abated within the time period originally fixed or as
  subsequently extended. We hold, therefore, 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 rebut the prima facie case, by showing,
  for example, 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.

 1The case cited by Contestant did not adjudicate the

specific issue presented herein, i.e., whether considering the
set of facts in this record the inspector's decision not to
extend the time for abatement was reasonable. Thus, to the
extent that these cases decided by Commission Judges are
inconsistent with my decision, I choose not to follow them.

   A.   Order No. 3720402

        1.   The Secretary's prima facie case

 As set forth by the Commission in Mid-Continent Resources,

supra, at 509, the Secretary has the burden of proving that the
"violation described in the underlying citation has not been
abated within the time period originally fixed, or as
subsequently extended."

 The "violation described" in the underlying citation was an

accumulation of coal dust and float coal that was combustible.
According to Blair, on October 21, 1992, there was loose coal,
dry loose coal, and dust that was "not wet" packed under the tail
piece (Tr. 25). Also, Donald Keith Kincell, a union walk around
who accompanied Blair, indicated the presence of dry material at
the back of the tail piece.

 On October 26, 1992, Blair returned to reinspect the area.

He indicated that he noted the continued presence of combustible
material at the tail such as loose coal, and coal dust, which was
packed and "dull", and had been there for "a while" (Tr.44).2
He also observed dry loose coal and dust on top of the rollers at
the tail. He indicated that the material was shiny but
underneath it was dull. Kincell testified that at the back end
of the tail there was still a build-up that was dry to partially
wet. He indicated it was in contact with the back rollers, and
was approximately 8 inches deep by 15 inches wide. He said that
it was damp to dry and was "drying out" (Tr. 85). He was asked
whether he observed this same material on October 21, and he
said: "Yes, basically all of it was still there" (Tr. 85). He
said that behind the tail piece "the coal was more of in the dry
stage" (Tr.96). He indicated that under the tail piece the
material was in contact with the belt and with the rollers where
the belt rubbed the structure.

 John Metz, the manager of the mine, indicated that every

shift subsequent to October 21, men were assigned to clean the
structure, rock dust, and wet the area. According to his
testimony approximately 60 tons of rock dust were used. He
indicated that on October 26, the material at the tail was
"extremely wet" (Tr. 136) and not in contact with either the
belting or any rollers.

 Contestant does not challenge validity of the citation

issued on October 21, 1992, i.e., the presence of an accumulation
of combustible material. The testimony of Blair and Kincell

 2In general, according to the uncontradicted testimony of

Blair, a fresh spill of coal is "shiny", whereas an "old"
accumulation is "dull" (Tr.40).

indicates that the violative condition at the tail i.e., coal
that was not wet under the tail piece and the back of the tail,
was in existence on October 26. I find that the testimony of
Metz that the material at the tail was "extremely wet",
insufficient to rebut the more specific testimony of Blair that
the coal in the tail area was dull, and the testimony of Kincell
which in essence indicates the existence of the same conditions
noted by Blair on October 21. I thus find, that, at the tail,
the Secretary has established a prima facie case that the
violative conditions there had not been abated. I find the
Operator's evidence inadequate to defeat this prima facie case.

 According to Blair, on October 21, he observed loose coal

dust all along the belt line, and haystacks. Also, at several
locations he observed that the belt and rollers were in contact
with material. He said that the material consisting of loose
coal, was dry, and was not muck. According to Kincell along the
entire length of the beltway there was a build-up of coal between
the rollers and the structure, and the rollers were running in
haystacks.

 Metz indicated that he walked from the head to the tail on

October 21, and that he did not observe any dry material. He
described the material he observed in as being non-combustible,
wet, mucky, and watery. However, it is significant to note that
the operator has not contested the fact of the violation i.e. in
accumulation of combustible material, as set forth in the
citation initially issued.

 Further, in this connection, Blair's notes, taken on October

22, 1992, indicate an accumulation on the belt top roller and
bottom roller at several locations outby block 151, inby block
145, inby block 148 to 149, and that outby block 145 there were
haystacks under the belt. The notes also indicate that at the
139 block inby, rollers were running in muck which was described
as being wet to dry and inby block 145 the bottom was running in
muck. Due to the fact that these notes were written contem-
porarious with the issuance of the 104(b) order, I accord them
considerable weight.

 According to Blair, on October 26, in general, the area was

cleaned up, haystacks were removed, and the walkside of the
beltway was cleared. However, he indicated that accumulations
were the same as on October 21, in the same locations, and were
dull not shiny, indicating an accumulation which was not fresh.
Kincell indicated that on October 26, there was fine coal in
contact with the belt for the full length of the beltway. He
further indicated that under the center rollers, there was the
same accumulation that had existed on October 21. He indicated
the center roller "was drying material out" (Tr. 86). He said
the accumulations in the area of the bottom roller were, "more to
the dry stage" (Tr. 95). He also indicated that "The build-up on

the structure, the center roller or the towing roller was dry"
(Tr.101), and for the entire of the belt length there was an
accumulation under the center rollers.

 Based on the above, I conclude that the Secretary has

established a prima facie case that at least some of the
violative conditions described in the 104(a) citation, as
elaborated upon in the testimony of Blair and Kincell, existed at
the time the 104(b) order was issued.

      2.   The Operator's Rebuttal

 It appears to be Operator's position that: (1) on

October 23, 1992 the violative conditions were abated; and (2)
any accumulations of materials present on October 26, 1992, were
not combustible, and thus their accumulation does not constitute
a failure to abate.

 Metz testified that on October 23, 1992, he examined the

entire belt structure, although not each individual piece. He
said that the material that was present was wet, and not capable
of being burnt. He said that he examined the material with his
hand, and in some location it ran through his fingers. He said
that at other locations he was able to squeeze water out of the
accumulation, and no accumulation was any dryer. According to
Metz, on October 23, 1992, no material was in contact with the
belt roller or any moving parts. He also said that at the tail
piece there was no material in contact with any moving parts, and
there was no accumulation at the tail.

 At best, Metz' testimony tends to establish that the

material observed by him on October 23, was wet and non-
combustible. However, Metz did not compare the conditions that
he observed on October 23, to that to which he had observed on
October 21, shortly after the initial citation was issued. I
accordingly find that his testimony is insufficient to predicate
a finding that as of October 23, 1992, the violative conditions
set forth in the citation and elaborated upon in the testimony of
Kincell and Blair, were no longer in existence.

 Metz indicated, in essence, that the material that he

observed on the belt line on October 26, was muddy and wet. He
said that he touched haystacks a couple of times and the material
ran through his fingers. He also said that a couple of times he
picked up material from the floor under the belt. He said he
made mud balls, and as he squeezed them the material oozed
through his hand. He described this material as non-combustible.
According to Blair, he did not observe Metz picking up any
material in his presence, and that although he was walking in
front of Metz "when I walk I constantly turn my head" (Tr. 265).
Due to the fact that Blair was walking in front of Metz, and thus
had his back to Metz, I find Blair's testimony insufficient to

contradict the testimony of Metz with regard to his having felt
the material in issue.

 It is clear that on October 26, 1992, there still was an

accumulation of material. The issue from the operator's
perspective, appears to be whether that material still be
considered combustible. However, according to Mid-Continent,
supra, the key issue is whether the violative conditions which
were initially cited continued in existence when the 104(b) order
was issued i.e. on October 26. Clearly, by all accounts, on
October 26, 1992, there continued to be an accumulation of coal
in the belt line. Only the Secretary's witnesses compared the
accumulations on October 26, 1992, to that which were in
existence on October 21. Their testimony indicates, in essence,
that in some respects, the accumulations were the same. The fact
that some of the accumulations on October 26, were very wet does
not negate the existence of the conditions initially cited by
Blair on October 21, to be violative of Section 75.400 and not
contested by the Operator. It would appear to be the thrust of
the Operator's case to challenge determination by Blair that the
accumulations were "combustible". It would appear that such a
challenge is germane to a contest of the initial citation.
However, such a challenge does not appear relevant when the only
issue is the validity of 104(b) order, which in turn depends upon
a resolution of only whether the conditions originally cited were
still in existence at the time of the issuance of the 104(b)
order (See Mid-Continent, supra). In this connection I find that
the weight of the evidence establishes that the cited violative
conditions were still in existence on October 26, and that this
conclusion has not been rebutted by the Operator. For these
reasons I conclude that Order No. 3720402 was properly issued,
and the contest to its issuance is to be dismissed.

      B.   Order No. 3720403

           1.   The Secretary's prima facie case

 Essentially, according to Blair, on October 21, 1992, the

conditions that he observed which caused him to issue the initial
citation consisted of several missing bottom rollers, a 100 foot
length of the belt where roller were missing, and that the fact
that several frozen rollers were observed. In addition, he noted
that some bearings were bad, and the belt was rubbing against the
structure causing rubber to flake.

 Blair indicated that on October 26, the same rollers that

were frozen on October 21, were also frozen on October 26,
although he did not know how many were frozen. He also said that
although some of the bottom rollers at the head were repaired,
the bottom rollers that were missing on October 21, were still
missing on October 26. In this connection, he indicated that
along 100 foot area all bottom rollers were still missing.

Kincell indicated that the rollers that he observed missing on
October 26, were also missing on October 21. He thought that
they were in the area of blocks 137 to 138. Notes taken by Blair
on October 26, indicate that the top roller 151 outby to 152 is
still bad. Kincell indicated that October 26, within 25 feet of
the tail piece on he observed two stuck rollers, one on top and
one on the bottom. He said that these were among those that he
had observed on October 21.

 Metz indicated that on October 23, he spent "probably" two

hours looking for frozen rollers (Tr.180). He said he inspected
all the rollers, i.e. 2,800, and did not observe any frozen
rollers along the belt line. He said that there were no frozen
rollers at the tail piece. It was further Metz' testimony that
between October 21 and October 26, 15 to 18 rollers were
replaced.

 According to Metz, on October 26, Blair pointed out to him

rollers that he (Blair) said were frozen. Metz indicated that
some of the rollers Blair had pointed to were not in contact with
the belt, and the others which were in contact with the belt did
turn when Metz reached in and turned them. Blair, in rebuttal,
indicated that on October 26 when he pointed out frozen rollers
to Metz, Metz did not demonstrate that they were not frozen, and
instead said they were trying to change them. In this
connection, Blair testified that after the two 104(b) orders in
question were issued, Daniel Kevin Conaway the safety manager at
the Tygart Mine to whom he spoke, said "we just failed to correct
them more properly" (Tr. 60). Conaway, who testified, did not
specifically rebut this testimony.

 I conclude, based on all the above, that the Secretary has

established a prima facie case that some of the rollers that were
observed missing on October 21, were still missing on October 26.
Metz testified that 15 to 18 rollers were replaced, however there
is no evidence in the record as to the locations where these were
replaced. Nor is there any evidence as to the total number of
rollers that had been observed missing on October 21, aside from
the testimony of Blair, that for 100 feet rollers were missing,
and the testimony of Kincell that at a point 10 feet removed from
block No. 133 for a distance of 120 feet, there were no rollers.
Accordingly, I find that based on the testimony of Blair and
Kincell that the Secretary has established a prima facie case
that some of the rollers observed missing on October 26, were the
same that had been missing on October 21.

           2.   The Operator's Rebuttal

 There is not any specific testimony to rebut the specific

testimony of Kincell that two of the rollers that he observed
frozen or not turning on October 21, where in that same condition
on October 26. I thus conclude that a prima facie case has been

established that some of the violative conditions cited on
October 21 continued to exist on October 26 with regard to
defective or inoperative rollers. The operator has not
introduced any specific evidence to rebut this prima facie case
such as evidence of missing rollers which had been replaced. Nor
is there any evidence that any missing rollers which had been
replaced after October 21, subsequently were no longer in place.
(See Mid-Continent, supra). Therefore I find the Operator's
challenge to this order to be without merit.

 Therefore for all the above reasons, I order that these

cases be DISMISSED.
Avram Weisberger
Administrative Law Judge

Distribution:

Thomas L. Clarke, Esq., 800 Laidley Tower, P.O. Box 1233,
Charleston, WV 25324 (Certified Mail)

Glenn Loos, Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

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