<DOC>
[DOCID: f:l95-403r.wais]

 
AMAX COAL COMPANY
March 29, 1996
LAKE 95-403-R


           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
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.

     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 also
Mettiki 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 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 parameters of Section 104(b) and must be
dismissed.[3]

                                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


**FOOTNOTES**

     [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.

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