Eastern Associated Coal, LLC v. Secretary of Labor

Plain-English summary

An MSHA inspector found extensive coal accumulations beneath a longwall belt take-up, with rollers turning in compacted coal and three frozen rollers. Judge Jacqueline R. Bulluck upheld the accumulation citation as significant and substantial, highly negligent, and an unwarrantable failure because the condition created frictional ignition sources in a gassy mine and had existed for days. She also upheld an inadequate-preshift-examination order because five examinations failed to identify and record the obvious condition. Two other enforcement actions were settled for $10,800 after reductions to gravity, negligence, and enforcement status. The judge affirmed the two litigated actions as issued and ordered Eastern Associated Coal to pay $20,751 in total penalties.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(f) and 75.400
• Outcome: Two litigated violations were affirmed as significant and substantial, high-negligence, and unwarrantable; two other matters were settled, with total penalties of $20,751.
• Key point: Extensive belt accumulations and repeated failures to discover them during required examinations supported unwarrantable-failure findings even when fire controls were present.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

May 28, 2013

EASTERN ASSOCIATED COAL, LLC,

Contestant, 

v.

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Respondent

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA), 

Petitioner, 

v.

EASTERN ASSOCIATED COAL, LLC, 

Respondent 

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

CONTEST PROCEEDINGS

Docket No. WEVA 2008-942-R

Citation No. 6606813-04/05/2008

Docket No. WEVA 2008-943-R

Citation No. 6606814-04/05/2008

Docket No. WEVA 2008-1310-R

Citation No. 6607269-05/15/2008

Mine Name: Federal No. 2

Mine ID: 46-01456

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2009-97

A.C. No. 46-01456-163283

Mine: Federal No. 2

DECISION

Appearances:              John A. Nocito, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;

Todd C. Myers, Esq., Rebecca J. Oblak, Esq., Bowles, Rice, McDavid,
Graff, & Love, LLP, Morgantown, West Virginia, for Respondent.

Before:                        Judge Bulluck

These cases are before me upon Notices of Contest and a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Eastern Associated Coal (“Eastern Associated”), pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (“Act”).

The parties have reached settlement on Citation No. 6604657 and Order No. 6607269.
Regarding remaining Citation No. 6606813 and Order No. 6606814, the Secretary seeks civil
penalties totaling $9,951.00 for two violations of her mandatory safety standards.

The following are issues for resolution in this case: (1) whether Eastern Associated
violated 30 C.F.R. §§ 75.400 and 75.360(f); (2) whether the violations were significant and
substantial; and (3) whether the violations were attributable to Eastern Associated’s high
negligence and unwarrantable failure to comply with the standards.

A formal hearing was held in Fairmont, West Virginia. At hearing, Petitioner’s Exhibits
(P-1 through P-9), Respondent’s Exhibit (R-1), and the parties’ Joint Stipulations (J-1) were
admitted into evidence. The parties’ Post-hearing Briefs are of record. For the reasons set forth
below, I AFFIRM the citation and order, as issued, and assess penalties against Respondent.

I. Stipulations

The parties stipulate as follows:

1. Respondent is an “operator,” as defined by section 3(d) of the Mine Act, of the coal
mine at which the citation and orders in this proceeding were issued.

2. Operations at the Federal No. 2 mine are subject to the jurisdiction of the Mine Act.

3. The Federal No. 2 mine is owned and operated by Respondent, Eastern Associated
Coal, LLC.

4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge pursuant to sections 104, 105,
and 113 of the Mine Act.

5. The individual whose signature appears in Section IV, No. 22 of the citation and
orders at issue in this proceeding was acting in his official capacity as an authorized
representative of the Secretary of Labor when the orders were issued.

6. The subject citation, orders and terminations were properly served by duly authorized
representatives of the Secretary upon agents for Respondent on the dates and times and at the
places stated therein, and may be admitted into evidence for the purpose of establishing their
issuance.

7. The citation and orders contained in Exhibit “A” attached to the Secretary’s Petition
are authentic copies of the citation and orders at issue in this proceeding.

8. The R-17 Assessed Violation History Report is an authentic copy and may be admitted
as a business record of the Mine Safety and Health Administration.

9. The MSHA computer printouts reflecting Respondent’s history of previous violations
are authentic copies and may be admitted as business records of the Mine Safety and Health
Administration.

10. Payment of the total proposed civil penalty in this matter will have no effect on
Respondent’s ability to remain in business.

11. The parties stipulate to the authenticity of their exhibits but not to the relevancy or
the truth of the matters asserted therein.

12. Respondent demonstrated good faith in attaining compliance after issuance of the
subject citation and orders.

13. Respondent mined approximately 3,093,227 tons of coal at the Federal No. 2 mine in
2008.

14. The entity controlling Respondent, Patriot Coal Corporation, produced more than
10,000,000 tons of coal in 2008.

15. At the time of the issuance of the citation and orders at issue in this proceeding, the
Federal No. 2 mine was subject to spot methane inspections at a minimum of every five working
days pursuant to section 103(i) of the Mine Act.

Ex. J-1

II. Factual Background

Federal No. 2 is an underground bituminous coal mine located near Fairview, West
Virginia. On April 5, 2008, Inspector Robert Radosevich conducted a regular quarterly
inspection of the mine. Tr. 41. Federal No. 2 is considered a gassy mine which requires regular
testing of methane samples at a minimum of every five working days. Tr. 41; Ex. J-1, Stip. 1.
When Radosevich arrived at the mine, he reviewed the pre-shift examination books and he
encountered a West Virginia state electrical inspector, John Hall, who was at the mine to check
the fire suppression system on the belt-line. Tr. 44.

Radosevich was accompanied on inspection by Eastern Associated section supervisor
Bob Phillips and miners’ representative John Palmer. Tr. 46. Radosevich and Hall traveled
simultaneously to the Right Longwall Belt in separate vehicles to check the fire suppression
system together. Tr. 46. When Radosevich arrived at the longwall belt take-up storage unit
between 8:30 and 8:45 a.m., the belt was not running.

Tr. 61. After Radosevich and Hall had
Phillips energize the belt, Radosevich walked the tight side to the back end of the take-up storage
unit, where he could activate the hose and visually inspect the sprinkler system above. Tr. 62,
66-69, 76. Both inspectors checked to ensure that the fire suppression system shut down the belt,
and were satisfied that it was operating properly. Tr. 69.

Upon walking out of the area along the tight side of the belt, Radosevich noticed coal
accumulations on the side of the take-up storage unit between the framework and the belt in what
he described as a five-inch “channel.” Tr. 69, 80. Radosevich either got down on his knees to
get a better look at the coal in the channel or was alerted by Palmer to take a look, and he
observed that the accumulations extended underneath the belt. Tr. 83, 261-62. At the front of
the take-up storage unit Radosevich observed a hold-up roller laying on the ground beside it that
was not turning, and that the belt was rubbing but was not warm to the touch. Tr. 81-83, 84-85,

88. He saw three additional rollers within the take-up storage unit that were compacted with
    coal. Tr. 85. Based on his observations, at 9:00 that morning, Radosevich issued Citation No.
    6604657 to Eastern Associated for coal accumulations in violation of section 75.400. Tr. 85.

After Phillips energized the belt a second time, Radosevich counted 14 rollers turning in
coal accumulations and three frozen rollers. Tr. 92. He observed that the moving belt was in
contact with the accumulations underneath, which caused them to become compacted with coal.
Tr. 93. Radosevich walked the full length of the take-up storage unit and determined that there
were coal accumulations under the entire length of the unit. Tr. 93-94, 104-06. He also saw
loose coal accumulations around the two bank rollers located at the tail of the take-up storage
unit. Tr. 104, 106-07. Thereafter, Phillips took the belt out of service, and it took seven miners
approximately three hours to clean up the accumulations. Tr. 95, 283-84.

While the miners cleaned, Radosevich measured the accumulations around the rollers to
range from 4 to 16 inches deep, extending from the tight side of the take-up to 14 inches under
the belt. Tr. 121. The top of the coal accumulations that extended 14 inches under the belt was
consistently wet, while deeper beneath the top some portions were wet and others were dry.
Tr. 121, 225-27. After the clean up, the miners started the belt, Radosevich ensured that the three
frozen rollers were turning, and he terminated the citation around 12:30 that afternoon. Tr. 97-99. Radosevich then issued Order No. 6606814 to Eastern Associated for an inadequate pre-shift
examination in violation of section 75.360(f), based upon his observation that the coal
accumulations at the belt take-up storage unit had not been recorded in the pre-shift examination
book. Tr. 132, 140.

III. Findings of Fact and Conclusions of Law

A. Citation No. 6606813

As a result of finding coal accumulations under the belt and around 14 rollers of the take-up storage unit, Radosevich issued 104(d)(1) Citation No. 6606813, alleging a significant and
substantial violation of section 75.400 that was “reasonably likely” to result in an injury or illness
that could reasonably be expected to result in “lost workdays or restricted duty,” and was caused
by Eastern’s “high” negligence and “unwarrantable failure” to comply with the standard.

The
“Condition or Practice” is described as follows:

The belt take-up storage unit for the 3 Right Longwall
section (MMU058-0) is not being kept free of combustible
accumulations under the belt. Gobs of grease are located at the
hold up roller. Fourteen of the bottom return rollers are turning in
combustible material which is packed around the rollers. The
accumulations around these rollers measure 4 inches to 16 inches
deep, extends [sic] from the tight side of the take-up to 14 inches
under the belt. The accumulations are in contact with the moving
belt at the location where the packed coal is against the rollers.
Loose coal is also accumulated around the 2 bank rollers located at
the tail of the storage unit. These accumulations were 8 feet long,
4 feet wide and 24 to 36 inches deep. Three of the rollers were
frozen by the compaction of the accumulations and began to turn
when the accumulations were removed. Seven miners shoveled for
3 hours to remove the accumulations from under the belt. The
take-up unit is 250 feet long and the rollers are installed at 10 foot
intervals. This constitutes an unwarrantable failure by the operator
to maintain the belt in a safe condition and free of combustible
accumulations.

Ex. P-7.

1. Fact of Violation

Eastern Associated concedes the violation but contests the “significant and substantial,”
“high negligence,” and “unwarrantable failure” allegations. Resp’t Br. at 23. Accordingly, I find
that Eastern Associated violated 30 C.F.R. § 75.400.

2. Significant and Substantial 

Citation No. 6606813 alleges a “significant and substantial” (“S&S”) violation, as
defined in section 104(d)(1) of the Act. In Mathies Coal Company, the Commission set forth
four criteria that the Secretary must establish in order to prove that a violation is S&S under
National Gypsum: 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. 6 FMSHRC 1, 3-4 (Jan. 1984);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987)
(approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of
injury, should be made in the context of “continued mining operations.” U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984). The Commission has also emphasized that 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 Co., 6 FMSHRC 1834, 1836 (Aug. 1984).  

In addition, the Commission has noted that “the relevant legislative history demonstrates
that Congress recognized that experience has proven that loose coal can propagate an explosion
and must therefore be kept to a minimum.” Utah Power & Light Co., Mining Div., 12 FMSHRC
965, 970 (May 1990), aff'd, 951 F.2d 292 (10th Cir. 1991). When examining the likelihood of a
fire, ignition, or explosion, the Commission examines whether a “confluence of factors” was
present on the particular facts surrounding the violation, including the extent of the
accumulations and the presence of possible ignition sources. Amax Coal Co., 19 FMSHRC 846,
848 (May 1997) (quoting Texasgulf, Inc., 10 FMSHRC 498, 500-01(Apr. 1988)).

Further, the Commission has flatly rejected the argument that wet coal accumulations are
not combustible by recognizing that accumulations of damp or wet coal, if not cleaned up, can
dry out and ignite. Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985);
Utah Power & Light, 12 FMSHRC at 969. “A construction of section 75.400 that excludes wet
coal defeats Congress’ intent to remove fuel sources from mines and permits potentially
dangerous conditions to exist.” Black Diamond, 7 FMSHRC at 1121; see also Utah Power &
Light, 12 FMSHRC at 970.

The fact of violation has been established. Respecting the second Mathies criterion, the
discrete safety hazard here that was contributed to by the accumulations was the risk of a belt fire
or an explosion. Here, the accumulations were extensive, extending along the entire distance of
the take-up storage unit, and measuring 4 to 16 inches deep around the bottom rollers, and eight
feet long, four feet wide, and 24 to 36 inches deep around the two bank rollers at the tail of the
take-up storage unit. Tr. 106, 97. Palmer described the “mess” and emphasized that it took
seven “heavy hitters” three hours to clean it up. Tr. 283. Further, the accumulations were black
and consisted of coal, loose coal, coal fines, and wet “carryback” coal. Tr. 103, 107, 228.
Moreover, Radosevich identified three sources of frictional heat: (1) the belt rubbing the rollers;
(2) the rollers turning in compacted accumulations; and (3) the belt coming into contact with the
accumulations underneath it. Tr. 110. The Commission has established that a coal accumulation
violation is S&S where potential ignition sources are posed by, among other things, frictional
contact between belt rollers and accumulations. Mid-Continent Res., Inc., 16 FMSHRC 1218,
1222 (June 1994); see also Amax, 19 FMSHRC at 849. Furthermore, as the Commission
recognized in Alabama-By Products Corporation, “the danger posed in underground coal mining
by a friction source that will lead to a heat buildup in an area where coal accumulations could
occur is obvious.” 4 FMSHRC 2128, 2131 (Dec. 1982).

Eastern Associated contends that the violation was not S&S because the “carry back”
material was “damp to wet,” the belt was not running at the time of the violation, the fire
suppression system was working properly, there were no ignition sources present at the time, and
the rollers were not warm. In addition, Eastern Associated argues that there were water sprays all
along the belt, the crusher, and the tailpiece which made the coal and belt wet, that the belt and
the take-up were equipped with a carbon monoxide monitoring system, that the belt was being
firebossed each of the three shifts by certified pre-shift examiners, that there was no methane nor
carbon dioxide present at the time of the examination, and the operator did not have any
reportable belt fires in its history. Resp’t Br. at 21-22.  

Phillips, Eastern Associated’s witness, testified that he did not believe that the violation
was S&S because he did not see the confluence of factors that would sustain an ignition or
explosion, and he did not see a heat source. Tr. 347. In addition, although he saw some frozen
rollers, he did not believe that they were a hazard, and he did not see any heat coming off of
them. Tr. 350.

Although the belt was not running at the time of the violation, an evaluation of the
reasonable likelihood of injury should be made assuming continued normal mining operations.
The evidence is clear that Eastern Associated intended to mine coal during the shift. Tr. 357-58.
The fact that there were safety measures in place along the belt does not detract from the
reasonable likelihood that the potential hazard, a belt fire or explosion, would occur in a gassy
mine, subject to five-day spot inspections, with sizeable accumulations under and around the
take-up storage unit. Even though there was no methane in the area and the oxygen levels were
within MSHA parameters when the citation was issued, it is undisputed that methane levels can
change quickly in a mine. Tr. 275-76.

Furthermore, the U.S. Court of Appeals for the Seventh Circuit has rejected arguments
that after-the-fact safety measures, such as fire suppression systems, reduce the likelihood of
serious injury. In Buck Creek, the mine operator argued that the combination of carbon
monoxide detectors, a fire-retardant belt, a fire suppression system, a fire brigade team, a rescue
team, fire fighting equipment, and adequate ventilation in the mine all undermined the likelihood
of a serious injury that would result from a coal accumulation violation. The Seventh Circuit, in
upholding the decision of the ALJ regarding the serious nature of the accumulations, determined
that the existence of other safety measures does not mean that fires are not a serious safety hazard
since the precautions are in place because of the “significant dangers associated with coal mine
fires.” Buck Creek, 52 F.3d at 136; see also Amax Coal Co., 18 FMSHRC 1355, 1359 n.8 (Aug.
1996) (rejecting operator’s contention that its redundant fire suppressions system reduced the
likelihood of serious injury); Amax, 19 FMSHRC at 850 (same). As the Commission noted
recently, making a determination that “mandatory safety protections provide a defense to a
finding of S&S would lead to the anomalous result that every protection would have to be
nonfunctional before an S&S finding could be made. Such an approach directly contravenes the
safety goals of the Act.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2369 (Oct.
2011).

The likelihood of a fire or explosion occurring was elevated because of the time that the
condition was permitted to exist. The evidence establishes that the accumulations had existed for
several shifts, as had the compacted and frozen rollers, and had not been reported in five prior
pre-shift examinations. In the course of continuing mining operations, it can reasonably be
inferred that the accumulations would have continued to accumulate with the ignition sources
present and, therefore, that a fire was reasonably likely to occur. See Enlow Fork Mining Co., 19
FMSHRC 5, 9 (Jan. 1997); Texasgulf, 10 FMSHRC at 501. Thus, I find that the second element
of the Mathies test has been satisfied.

The third and fourth Mathies criteria require a reasonable likelihood that the hazard
contributed to will result in an injury and that the injury be of a serious nature. It is not required
that the Secretary establish that it is more probable than not that an injury would have occurred as
a result of the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 2009). The
Commission has emphasized that the test under the third prong of Mathies is whether the hazard
fostered by the violation is reasonably likely to cause injury, not whether the violation, itself, is
reasonably likely to cause injury. Cumberland Coal, 33 FMSHRC at 2365. Here, a belt fire or
explosion caused by the coal accumulations would be reasonably likely to result in serious
injuries, i.e., burns, smoke inhalation, or even death. Indeed, the Commission recognizes that
“ignitions and explosions are major causes of death and injury to miners.” Black Diamond, 7
FMSHRC at 1120. Therefore, I find that the violation of section 75.400 was S&S.

3. High Negligence and Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or a “serious lack of reasonable care.” Id. at 2001-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991); see also Buck Creek, 52 F.3d at 136. The Commission has
recognized the relevance of several factors in determining whether conduct is “aggravated” in the
context of unwarrantable failure, such as the extensiveness of the violation, the length of time
that the violation existed, the operator’s efforts in eliminating the violative condition, and
whether the operator had been put on notice that greater efforts are necessary for compliance.
See Consolidation Coal Co., 22 FMSHRC 328, 331 (Mar. 2000); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994). The Commission has also considered whether the violative
condition is obvious or poses a high degree of danger. Windsor Coal Co., 21 FMSHRC 997,
1000 (Sept. 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Warren Steen Construction, Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984)). Each
case must be examined to determine whether an actor's conduct is aggravated, or whether
mitigating circumstances exist. Eagle Energy Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing
Consol, 22 FMSHRC at 353).

Here, extensive accumulations of coal were permitted to accumulate under the belt and
around the rollers of the take-up storage unit. The Secretary contends that the coal accumulations
were obvious, extensive, existed for a significant length of time, and posed a high degree of
danger. In addition, the Secretary asserts that Eastern Associated had been placed on notice that
greater efforts were necessary to prevent such accumulations. Sec’y Br. at 11. Eastern
Associated argues that it is not guilty of high negligence or unwarrantable failure because it was
not aware of the accumulations until the belt was raised. Resp’t Br. at 11, 23. It further contends
that since it had no notice of the accumulations, it is not guilty of more than ordinary negligence.
Resp’t Br. at 23.

Radosevich opined that the coal accumulations had been under the belt and around the
rollers for at least a couple weeks based upon the manner in which the coal was compacted, and
that it was impossible for the accumulations to have occurred between the pre-shift examination
and his inspection. Tr. 268, 153. Eastern Associated did not rebut Radosevich’s assessment and
Phillips, the safety manager, was not aware of how long the accumulations had existed. Tr. 361.
Indeed, Palmer’s description of the “mess” and the manpower it took to clean it up lends
credence to Radosevich’s contention that the accumulations occurred over a period of at least
several days.

As has been discussed, the accumulations were quite extensive and several rollers were
either compacted and turning in coal or frozen. Although Phillips testified that the view of the
accumulations was blocked by guarding and the framework of the take-up storage unit, I find
Eastern Associated’s argument that it was unaware of the condition unconvincing, because an
adequate pre-shift examination would have exposed it. Although the accumulations were less
obvious when walking the wide side, the pre-shift examiner would have seen them if he had bent
down and looked under the belt, which is required. In addition, the guarding was constructed
with see-through holes and was lightweight and easy to remove. Tr. 125. Indeed, the
accumulations were obvious to Radosevich when he walked the tight side, and he bent down
only to observe the extensiveness of the accumulations under the belt. Even assuming that
Palmer had alerted Radosevich to the accumulations first, as Eastern Associated contends,
Palmer did nothing more than is required, at minimum, during a thorough pre-shift examination.

Repeated similar violations may be relevant to an unwarrantable determination to the
extent that they serve to put the operator on notice that greater efforts are necessary for
compliance with a standard. Amax, 19 FMSHRC at 851; see also Consol, 23 FMSHRC at 595
(“a high number of past violations of section 75.400 serves to put an operator on notice that it has
a recurring safety problem in need of correction.”) (citations omitted.). The Commission has
rejected the argument that only past violations involving the same regulation and occurring in the
same area within a continuing time frame may properly be considered when determining whether
a violation is unwarrantable. Peabody Coal Co., 14 FMSHRC 1258, 1263 (Aug. 1992). Here,
Eastern Associated had 50 prior citations for section 75.400 violations that had become final
orders in its relevant violation history. Ex. P-1 at 2, P-5, P-6. This history is significant and
shows that greater efforts were necessary to comply with the standard.

It is well settled that an operator’s knowledge may be established and a finding of
unwarrantable failure supported where an operator reasonably should have known of a violative
condition. See Emery, 9 FMSHRC at 2002-04; Drummond Co. Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991), quoting Eastern Assoc. Coal. Corp., 13 FMSHRC 178, 187 (Feb. 1991)
(“Emery makes clear that unwarrantable failure may stem from what an operator ‘had reason to
know’ or ‘should have known.’”). Furthermore, the Commission has found that where an agent
of an operator has knowledge or should have knowledge of a safety hazard, such knowledge
should be imputed to the operator. See Martin Marietta Aggregates, 22 FMSHRC 633, 637
(May 2000); Pocohontas Fuel Co., 8 IBMA 136, 147 (Sept. 1977) aff’d 590 F.2d 95 (4th Cir.
1979) (Coal Act case) (adopting the common law principle that acts or knowledge of an agent are
attributable to a principal). Requiring actual knowledge on the part of an operator where an
inadequate pre-shift examination fails to properly put the operator on notice of a hazard would
undermine the strict liability principles of the Act. See Rock of Ages Corp. v. Sec'y of Labor, 170
F.3d 148, 156 (2d Cir. 1999) (holding that Mine Act regulation “imposes strict liability on mine
operators . . . regardless of whether the operator has knowledge” of the hazard).

Eastern Associated should have known of the extensive accumulations under the belt and
around the rollers because the conditions were obvious and the certified pre-shift examiner, the
operator’s agent, was required to conduct a thorough exam and record the hazard in the pre-shift
examination book. The operator removed the accumulations once it was made aware of them by
Radosevich, although post-citation efforts are not relevant to a determination of whether an
operator engaged in aggravated conduct in allowing a violation to occur. Enlow Fork, 19
FMSHRC at 17; U.S. Steel Corp., 6 FMSHRC 1423, 1437 (June 1984) (unwarrantable failure
may be proved by a showing that the violative condition was not corrected or remedied prior to
issuance of a citation or order). Here, Eastern Associated should have known of the
accumulations problem, having been on notice that greater vigilance was required, but it took no
steps to abate the condition until it was cited.

Based on a thorough review of the record, I make the following findings: the
accumulations were extensive and existed for a significant period of time; the operator had been
placed on notice that greater efforts were necessary for compliance; the violation posed a high
degree of danger; the operator should have known about the existence of the violation; and the
operator did not abate the violation in a timely manner. Therefore, I find that the Secretary has
met her burden of establishing that the violation was a result of Eastern Associated’s high
negligence and unwarrantable failure to comply with the standard.

B. Order No. 6606814

Order No. 6606814 alleges an S&S violation of section 75.360(f) that was “reasonably
likely” to result in an injury or illness that could reasonably be expected to result in “lost
workdays or restricted duty,” and was caused by Eastern Associated’s “high” negligence and
“unwarrantable failure” to comply with the standard.

The “Condition or Practice” is as follows:

The preshift exam conducted on the 3 Right Longwall Belt (MMU
058-0) is inadequate. The exam was conducted on the midnight
shift from 5:10 a.m. to 5:50 a.m. and the report phoned outside
recorded no violations observed at the belt take-up area. A d-1
citation was issued at 8:55 a.m. for extensive accumulations under
the belt and rollers of the take-up unit. The d-1 citation number is
6606813. The accumulations were packed under 14 of the bottom
return rollers and under the belt. Mine examiners are required to
examine areas of the mine for violations and hazards and record
these findings in the book for that exam. No record is in the book
indicated these accumulations for the past 5 pre-shift exams [sic].
This order will terminate when the operator documents that all
mine examiners at the mine have been retrained in the proper
conducting of exams.

Ex. P-8.

1. Fact of Violation

The Commission has recognized that the pre-shift examination requirements are “of
fundamental importance in assuring a safe working environment underground.” Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). Here, the pre-shift examination on the tight side of
the 3 Right Longwall Belt was conducted on April 5, 2008 by Robert Shingleton on the
midnight shift from 5:10 to 5:50 a.m. The report was phoned outside sometime before 7:30
a.m., that no violations were observed at the belt take-up area. Ex. P-8; Tr. 138-39. However,
as has been fully discussed, extensive accumulations were later observed under the belt and
around the rollers of the take-up storage unit by Radosevich, Palmer, and Phillips. Tr. 105-06
(Radosevich); Tr. 281-82 (Palmer); Tr. 359-61 (Phillips).

Eastern Associated argues that since the pre-shift examiner did not record any hazards,
the cited conditions were not present at the time of the examination. Resp’t Br. at 11. However,
the evidence indicates that the accumulations were simply too extensive and compacted to have
occurred in the scant three hours between the pre-shift examination and the inspection. An
adequate pre-shift examination requires looking under the bottom belt and take-up storage unit,
as well as looking at the rollers to ensure that they are operating properly. Two examiners travel
the wide side and one examiner travels the tight side within a 24 hour period. If an adequate
pre-shift examination were conducted in this case, the examiner, like the inspector, would have
seen the flat spots on the rollers and the coal accumulations, then recorded the hazards for
correction. However, considering the extensiveness and duration of the cited condition, it is
reasonable to conclude that an inadequate pre-shift examination was conducted at the 3 Right
Longwall Belt, and that Eastern Associated violated section 75.360(f).

2. Significant and Substantial

The first and second elements of the Mathies test have been established. The failure to identify and record the accumulations so that they could be addressed by the operator contributedto the risk of a mine explosion or belt fire. Thus, the focus of the S&S analysis is on the remaining two elements of the Mathies test.

The third and fourth elements of Mathies require a reasonable likelihood that the hazard
contributed to will result in an injury, and that the injury will be serious. As discussed
previously, the accumulations were extensive and had existed for at least several days, which
exposed the miners to a heightened risk of injury since the hazard was not corrected and three
potential ignition sources existed. There is also credible evidence that Eastern Associated
intended to produce coal during the shift, and no plans had been made to remove the combustible
accumulations since management had not been alerted to the hazard by the pre-shift
examinations. These factors, in combination, created a dangerous situation that had a reasonable
likelihood of resulting in an injury and, a potentially serious one. As discussed previously, a belt
fire or an explosion can cause smoke inhalation, burns, and even death. Therefore, I find that the
violation of section 75.360(f) was S&S.

3. Unwarrantable Failure

The coal accumulations existed for at least several days, possibly weeks, and no
examiner recorded the hazard in the five prior pre-shift examinations. The accumulations
extended along the entire 220-foot expanse of the take-up storage unit, were packed around the
rollers at depths of 4 to 16 inches, and took seven miners three hours to clean up. Moreover, as
previously noted, the operator had been placed on notice that greater efforts were necessary to
address coal accumulations in this gassy mine, as evidenced by the significant history of section
75.400 violations. However, the fact that there were also five violations of section 75.360 is not
an aggravating factor, since the Secretary did not proffer any evidence specifying the affected
areas of the mine or deficiencies in the pre-shift examinations. The violations could have
involved a wide range of issues, and five violations within a 15 month period, without more, is
not significant, especially in a large mine such as Federal No. 2.

The operator effectively abated the violation by holding a safety meeting addressing
proper procedures for conducting pre-shift examinations with its mine examiners. Ex. P-8;
Tr. 119. To reiterate, the accumulations were obvious and should have been seen by the pre-shift examiners had adequate examinations been conducted, especially considering that in a 24
hour period one of three would have traveled along the tight side of the belt. The accumulations
also posed a high degree of danger to miners due to the risk of a belt fire or explosion.

The pre-shift examiners’ failure to recognize and report this extensive, obvious coal
accumulations hazard to management over several shifts constitutes high negligence that is
imputable to Eastern Associated and, considering the danger posed by this condition, rises to a
heightened level of indifference or neglect that also constitutes an unwarrantable failure to
comply with the standard.

IV. Civil Penalty

While the Secretary has proposed a total civil penalty of $9,951.00 for the two violations,
the judge must independently determine the appropriate assessment by proper consideration of
the six penalty criteria set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg
Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F.2d 1147 (7th Cir. 1984).

Applying the penalty criteria, I find that Eastern Associated is a large operator with a
significant history of section 75.400 violations, and that its history of section 75.360 violations is
not an aggravating factor in assessing an appropriate penalty. As stipulated by the parties, the
total proposed penalty will not effect Eastern Associated’s ability to continue in business, and the
operator demonstrated good faith in abating the citation and order. Ex. J-1, Stip. 10, 12. As has
been fully discussed respecting each violation, the operator was highly negligent in committing
both violations. Therefore, considering my findings as to the six penalty criteria, the following
penalties are appropriate: 

A. Citation No. 6606813

The Secretary has established a serious S&S violation of section 75.400, that was caused
by Eastern Associated’s high negligence and unwarrantable failure to comply with the standard.
Applying the civil penalty criteria, I find that a penalty of $6,458.00, as proposed by the
Secretary, is appropriate.

B. Order No. 6606814

The Secretary has established a serious S&S violation of section 75.360, that was caused
by Eastern Associated’s high negligence and unwarrantable failure to comply with the standard.
Applying the civil penalty criteria, I find that a penalty of $3,458.00, as proposed by the
Secretary, is appropriate.

V. Approval of Settlement

The Secretary has filed a Motion to Approve Partial Settlement of this docket. A
reduction in the penalty from $56,336.00 to $10,800.00 is proposed. The citations, initial
assessments, and the proposed settlement amounts are as follows:

Citation/Order No.

Proposed

Settlement

6604657         

$53,800.00      

$10,000.00

6607269         

$2,536.00 

$800.00 

Total:

$56,336.00

$10,800.00 

I have considered the representations and documentation submitted by the parties.
Specifically, respecting Citation No. 6604657, the Secretary has credited Eastern Associated’s
contention that the bleeder system was not connected to an active longwall section, reducing the
likelihood of an accident in the absence of an immediate or potential ignition source, and there
was no methane found in the explosive range within the area. The Secretary proposes
modification of 104(d)(1) Order No. 6607269 because the underlying order, 104(d)(1) Order No.
6607268, has been vacated. I conclude that the proffered settlement is appropriate under the
criteria set forth in section 110(i) of the Act.   

ORDER

WHEREFORE, it is ORDERED that Citation No. 6606813 and Order No. 6606814 are
AFFIRMED, as issued; that the Secretary MODIFY Citation No. 6604657 to reduce the level of
gravity to “reasonably likely,” and Order No. 6607269 to a citation issued under section 104(a) of
the Act with the degree of negligence reduced to “moderate,” and that Eastern Associated Coal,
LLC, PAY a civil penalty of $20,751.00 within 30 days of this Decision.

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution: (Certified Mail)

John A. Nocito, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

Todd C. Myers, Esq. and Rebecca J. Oblak, Esq., Bowles Rice McDavid Graff & Love, LLP,
7000 Hampton Center, Suite K, Morgantown, WV 26505-1720

/lo