Federal Mine Safety and Health Review Commission

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.

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.

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.

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.

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.

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.

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).

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.

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.

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:

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.

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.

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.

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.

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