This case is before me upon a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute are two section 104(a) citations issued to Mach Mining, LLC (“Mach” or “Respondent”), alleging violations at Mach’s Mach No. 1 mine. To prevail, the Secretary must prove his charges “by a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden of proof requires the Secretary to demonstrate that “the existence of a fact is more probable than its nonexistence.”  RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

I. STATEMENT OF THE CASE

            The Secretary filed his petitions for the assessment of penalty against Mach, and Mach timely filed its answers. Chief Judge Lesnick assigned consolidated Docket Nos. LAKE 2009-263 and LAKE 2009-338 to me along with Docket No. LAKE 2009-264. The parties subsequently settled Docket No. LAKE 2009-264, and I disposed of the case in a separate Decision Approving Settlement.

            The Secretary has proposed a total civil penalty of $4,800.00 for the two remaining citations, and I held a hearing on the record in Evansville, Indiana to determine the merits of the Secretary’s case. Citation No. 6683204 charges Mach with violating 30 C.F.R. § 75.380(f)(3)(iii) for obstructing a primary escapeway with a battery charging station, and alleges that Respondent’s conduct constituted high negligence. The Secretary presented the testimony of Mine Safety and Health Administration (“MSHA”) Inspector and Electrical Engineer Dean Cripps, while Respondent presented testimony from Mach General Manager Anthony Webb and Fire Safety Incorporated Sales Representative Lowell Holler.

                        In addition, Citation No. 6679603 charges Mach with violating 30 C.F.R. § 75.400 for failing to clean up and prevent the accumulation of coal dust, loose coal, and other combustible material. The Secretary also alleges that the condition was significant and substantial (“S&S”) and the result of Mach’s high negligence. The Secretary presented testimony from two inspectors, Inspector Edward Law and Inspector Bobby Jones, while Mach presented evidence from Webb, Mach Examiner Dave Adams, and Mach Mine Foreman Chris England.

            Respondent has stipulated to my jurisdiction over this matter under the Mine Act, Mach’s status as an operator subject to the Mine Act, and the effect Mach’s coal has on interstate commerce. (Resp’t Prehr’g Rprt. at 1.) The Secretary and Respondent each submitted posthearing briefs and reply briefs. 

II. ISSUES

            The Secretary asserts that the conditions were properly cited as violations and the allegations underlying the citations were valid. (Sec’y Br. at 1.) Mach admits a violation of both cited safety standards but contends that Citation No. 6679603 should be modified to a non-S&S citation. (Resp’t Br. at 1.) Moreover, Mach asserts that both citations were improperly designated as resulting from Mach’s high negligence. (Id.)

            Accordingly, the issues before me are as follows: (1) whether the record supports the Secretary’s assertions regarding the gravity of Citation No. 6679603; (2) whether the record supports the Secretary’s assertions in Citation Nos. 6683204 and 6679603 regarding Mach’s level of negligence; and (3) whether the civil penalties proposed by the Secretary are appropriate.

            For the reasons set forth below, Citation Nos. 6683204 and 6679603 are AFFIRMED as written.

III. BACKGROUND AND FINDINGS OF FACT

            The Mach No. 1 mine is a longwall coal mine in Johnston City, Illinois. (Sec’y Ex. 1;

Tr. 18:8–9, 220:20–21, 263:8–11.) Mach Mine No. 1 is a “gassy” mine that liberates more than 1 million cubic feet of methane per 24 hours. (Tr. 143:20–144:3.) Each panel of the Mach No. 1 mine has a similar configuration and is generally about 18,000 feet in length. (Tr. 27:20–22, 30:13, 84:16–19.) A system of conveyor belts carries the coal to the main belt. (Tr. 13:7–8, 118:11–14.) The main belt—also known to as the “second east belt”—runs the entire 18,000-foot length of the longwall and carries the coal out of the mine. (Tr. 13:7–8, 118:11–14.) Mach Mine No. 1 also maintains sprinkler systems and carbon monoxide (“CO”) monitors as fire suppression and detection equipment in the Second East Headgate area of the mine.

(Tr. 157:4–161:5, 255:4–11.)

            In the fall of 2008, a temporary belt—known as a pony belt—extended into a setup room area to facilitate transfer of coal to the second east belt. (Sec’y Ex. 1; Tr. 114:5–23, 118:2–4.) The pony belt transferred the coal from the setup room onto the second east belt. (Sec’y Ex. 1;

Tr. 115:12–117:23.) The pony belt and second east belt were the same width, making spillage common at the transfer point. (Tr. 13:9–13, 119:11–18, 231:12–23, 253:12–24.)

            The mine also maintains primary and secondary escapeways for each section, which provide miners in the working area a safe pathway to exit the mine in the event of an emergency. (Tr. 24:15–25:10, 32:7–9.) Primary escapeways are designed to be ventilated with intake air fresh from the surface to prevent smoke contamination of the main escape route in the event of a mine fire. (Tr. 24:24–25:3.) Alternate escapeways are separated from the primary escapeway in their entirety, but they need not be ventilated with intake air. (Tr. 25:4–10.)

IV. PRINCIPLES OF LAW

A.        General Principles Governing Significant and Substantial (“S&S”) Designations

            A violation is S&S “if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the Secretary must prove: “(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.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc., 52 F.3d at 135–36 (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).

            The third Mathies element is often heavily contested. In the accumulations context, the third element is met where a “confluence of factors,” such as the extent of the accumulation and presence of possible ignition sources, make the hazard reasonably likely to result in injury. See Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). This evaluation should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Materials need not be hot when inspected to prove friction as an ignition source, if heat will eventually result during continued normal mining operations. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994) (finding the lack of a hot spot immaterial where friction was present between belt rollers and accumulations).

            The Commission has also provided guidance to Administrative Law Judges in applying the Mathies test. The Commission has indicated that “an inspector’s judgment is an important element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (finding no abuse of discretion where ALJ credited opinion of experienced inspector).

B.        General Principles Governing Determinations of Negligence

            Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risk of harm. 30 C.F.R.

§ 100.3(d). Mine operators are held to a high standard of care, and failure to exercise such care constitutes negligence. Id. An operator is required to be alert for conditions affecting the health and safety of miners, while taking preventive and/or corrective action to address hazardous conditions or practices. Id. MSHA may consider mitigating circumstances which can include the operator’s actions to prevent or correct hazardous conditions or practices. Id.

            Estoppel defenses are not generally available against the federal government. See, e.g., Knob Creek Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Inspectors’ previous representations about compliance with a regulation do not estop MSHA from issuing future citations, Nolichuckey Sand Co., 22 FMSHRC 1057, 1063–64 (Sept. 2000), but detrimental reliance on an inconsistent interpretation is properly considered in mitigating the penalty. U.S. Steel Mining, Co., 6 FMSHRC 2305, 2310 (Oct. 1984) (indicating that a local MSHA office’s past approval of operator’s transportation methods does not negate an S&S finding and noting that detrimental reliance may be considered in mitigation of penalty).

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.        Citation No. 6679603 — The Accumulations Violation

            1.         Additional Findings of Fact

                        a.         Roof Fall, Inspection, and Accumulations — October 30

            The early hours of October 30, 2008, were a busy time at Mach Mine No. 1. At approximately 2:00 a.m., Mach began to move the temporary pony belt connecting the mine’s setup room to the second east belt, which would be a four or five hour process.

(Tr. 240:17–241:7.) Meanwhile, at approximately 2:30 a.m., Adams identified coal accumulations in the second east belt tail area, deenergized the belt, and notified Mach’s foreman that the belt tail needed to be cleaned. (Tr. 228:15–21, 229:1–12.) However, a roof fall occurred in the Second East Headgate area between 3:00 a.m. and 3:30 a.m. (Tr. 239:2–3.) Finally, at some point overnight prior to 7:00 a.m., a miner injured himself while installing supplemental support in another area of the mine. (Tr. 204:20–22, 205:8–11, 246:21–23.)

            Two MSHA inspectors, Inspector Jones and Inspector Law, independently responded to the report of the roof fall. (Tr. 110:8–12, 113:4–5, 204:8–14, 205:4–5.) Inspector Jones arrived at Mach Mine No. 1 at approximately 6:30 a.m. (Tr. 204:8–14, 205:4–5, 122:18–22, 136:9–13, 137:13–15, 205:17–18.) He verbally issued a section 103(k) order at approximately 7:15 a.m., which required Mach to evacuate the area near the roof fall—including the area of the accumulations, which was approximately 400 feet away. (Tr. 123:6–11, 148:3–6, 208:4–10, 210:6–10, 14–17.) After Jones issued the section 103(k) order, Mach was prohibited from accessing the Second East Headgate area, including the junction point between the pony belt and main belt. (Tr. 185:2–5.) Jones testified that he saw the accumulations at the tail piece of the second east belt on his way to the roof fall area. (Tr. 206:4–8.) According to Jones, he did not immediately cite the accumulations because he was “more concerned with getting the roof control—the roof fall investigation so I could go and investigate the accident to the miner.”

(Tr. 206:11–14.)

            Later that morning, Law received a call regarding the roof fall at Mach No. 1 Mine.

 (Tr. 110:8–11.) While traveling to the roof fall area, Law also observed the accumulations at the head of the pony belt and the tail of the second east belt. (Tr. 113:12–24.) At 10:40 a.m., Law issued a section 104(a) citation to Mach for violating 30 C.F.R. § 75.400. Law’s citation states:

The [Second] East Headgate belt tail has been running in accumulations of combustible materials in the form of coal fines, loose coal and coal. The accumulations are in front of, along the sides of and under the belt tail area. They range from 5 to 10 feet in length, 3 to 4 feet wide and from 6 to 24 inches in depth. The bottom belt has been running in coal and is in contact with the belt, under the tail pulley and in contact on both sides of the tail pulley. The accumulations of combustible materials are also built up under the pony belt scrapers in contact with the belt 10 to 18 inches in depth and the width of the belt. There has been a roof fall on the pony belt and the belts are currently not operating.

(Sec’y Ex. 7.) The accumulations were dark in color and were not rock dusted. (Sec’y Ex. 7; Tr. 120:2–7,0 121:9–10.) Although the second east belt was not running at the time, it appeared the accumulations were extensive and had been in contact with both sides of the belt. (Sec’y Ex. 7; Tr. 113:24, 114:1, 119:1–3.) According to Law, belt friction provided an ignition source.

(Tr. 145:8–10.) He also indicated the accumulations appeared to have been there “for a while.” (Tr. 156:3–4.)

            As to the extent of the accumulations, Law observed loose coal spilled along both sides of the belt, behind it, and underneath the head area. (Sec’y Ex. 7; Tr. 118:23–119:1.) Law measured the accumulations with a tape measure and described them as being five to 10 feet out along the sides of the belt tail and pony belt head area, three to four feet wide, and six to 24 inches deep. (Sec’y Ex. 7; Tr. 126:18–19, 113:19–20.) Underneath the pony head area, there were 10 to 18 inches of coal accumulations, such that the belt was “actually sitting on top of the coal.” (Sec’y Ex. 7; Sec’y Ex. 8; Tr. 113:21–24.)

            Based on his observations, Law also determined that the violation was S&S and the result of Mach’s high negligence. (Sec’y Ex. 7; Tr. 111:7–13, 152:15–154:16, 164:1–165:17.)

                        b.        Additional Findings of Fact — Mach’s Corrective Measures

            Although Respondent admits that the cited accumulations were present in the belt tail area, Mach disputes Inspector Law’s determination regarding the duration of the violative condition. (Resp’t Br. at 2–3, 12–13.) Instead, Mach claims that the accumulations were a recent spill. Specifically, Respondent points to Examiner Adams’ testimony to suggest that accumulations listed in the exam book for the afternoon shift on October 29 had been cleaned. Adams worked a 9:00 p.m. to 7:00 a.m. shift at Mach Mine No. 1 on October 29 and October 30. (Tr. 224:22–23, 238:1–3.) Between 9:30 p.m. and 10:00 p.m. on October 29, Adams passed by the second east belt tail area. (Sec’y Ex. 7; Tr. 227:2–9, 228:10–11.) Adams testified that the accumulations described in Citation No. 6679603 were not consistent with his observations at 9:30 p.m. (Tr. 228:1–3.) According to Adams, at 9:30 p.m. the main belt and pony belt were running, and the tail rotor was clear. (Tr. 228:4–14.) Mach thus claims that the accumulations from the October 29 afternoon shift must have been cleaned before Adams’ 9:30 p.m. observations. (Resp’t Br. at 14.)

            Despite Adams’ testimony, the evidence in this case convinces me that Respondent made no attempt to clean or address the accumulations at issue until Adams shut down the second east belt at 2:30 a.m. First, Inspector Law credibly testified that he believed no corrective action had been taken based on the amount of coal accumulations he found during his examination. As Law explained: “If it had been cleaned up twice prior to that, then they had an awful spill occurring . . . when whatever took the belt down, whoever took the belt down . . . it was running in coal and it had built up to the point that it was a pretty good size accumulation. . . . [I]f it was [cleaned up], then the spill they had ongoing was creating a very big hazard.” (Tr. 156:15–157:3.) In Law’s opinion, therefore, no corrective action had been taken between the October 29 afternoon shift and his inspection on October 30. (Tr. 156:15–17.) Law has more than 27 years experience as a miner and inspector. (Tr. 108:9–109:24.) His opinion is therefore entitled to significant weight. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the opinion of an experienced inspector to conclude that substantial evidence supported the ALJ’s S&S determination).

            Second, Adams admitted he was not making a belt examination when he made his 9:30 p.m. observation; instead, he was in the area to examine a belt transformer. (Tr. 228:4–10.) Though Adams may have observed the area, his observation was not focused on the accumulations. In fact, during the hearing Adams gave no basis to believe his 9:30 p.m. observation of the belt tail area was at all rigorous. I therefore give no weight to Adams’ testimony on this point.

            Finally, Mach produced neither testimony from General Manager Webb, Mine Foreman England, or Adams nor other evidence identifying any actual corrective action taken to clean up the accumulations. Based on the above, I therefore find Mach made no corrective actions to clean up the accumulations between the time the afternoon examiner observed them and the roof fall occurred at approximately 3:30 a.m.

            2.         Legal Analysis

a.   Conclusion of Law — S&S Determination

            Mach stipulated to a violation of 30 C.F.R. § 75.400, fulfilling the first Mathies factor. As I noted, Law credibly testified that the belt was in contact with the coal and an ignition was possible. Moreover, a belt running in coal may lead to a belt fire, creating smoke affecting anyone in the belt entry and increasing the chance of an explosion. See Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (August 1985) (recognizing that coal can dry out and ignite). Thus, the accumulation contributed to a discrete safety belt fire safety hazard, and I determine that the Secretary has satisfied the second element of the Mathies test.

            Mach also claims that injuries were not reasonably likely to occur, which is the third Mathies element. (Resp’t Br. at 10–12.) First, Respondent contends that if an ignition did occur, the direction of air flow in the entry meant that “smoke would travel outby away from miners in the working section.” (Id. at 11.) Second, Respondent claims that the belt did not provide a possible ignition source because it had been deenergized. (Id. at 10–11.) Finally, Mach claims that it would have cleaned the violative accumulations in the course of normal mining operations before the second east belt was reenergized. (Id. at 14–15.)

            Nevertheless, the evidence before me demonstrates that the Secretary has satisfied his burden of proof on Mathies’ third element. Here, Law credibly testified that the second east belt had been running in coal. According to Law, one miner would be exposed to the hazard of a belt fire because the belt examiner that regularly checked the belt system would encounter smoke. (Tr. 154:8–9.) Regardless of the air flowing away from the miners on working section, a belt fire

would therefore reduce visibility and make it difficult for the examiner to breathe or find his or her way out of the mine.

            Respondent’s claim that the deenergized belt did not provide an ignition source is similarly inapposite. Although the second east belt had been deenergized at the time Law issued Citation No. 6679603, the belt was running in accumulations when Adams observed the accumulations at 2:30 a.m. Cf. Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989) (noting that “[t]he operative time frame for determining if a reasonable likelihood of injury exists includes both the time that a violative condition existed prior to the citation and the time that it would have existed if normal mining operation had continued.”) (emphasis added). Thus, the second east belt provided a source of ignition for several hours before Adams took any steps to shut down the belt.

            In addition, the evidence suggests the belt was reasonably likely to be reenergized in the course of normal mining operations. Notwithstanding the belt shut down and Inspector Jones’ section 103(k) order, Respondent failed to clean the accumulations for several hours prior to the 3:30 a.m. roof fall. Thus, it appears that cleaning the accumulations was not a priority for Respondent. Indeed, England admitted that he prioritized conditions listed in Mach’s exam books. (Tr. 265:14–9.) In this context, the belt could be purposefully or inadvertently reenergized after Mach addressed the roof fall and completed its pony belt move. Cf. Knox Creek Coal Corp., 36 FMSHRC 1128, 1141 (May 2014) (concluding that an accumulation was S&S where the operator had already dispatched a clean-up crew to an accumulation running in coal because the Commission could not assume the clean up would be completed before production resumed.) Given the presence of an ignition source, the size of the coal accumulation, the amount of time that the accumulations existed and ran in coal, Mach’s previous inaction, and the possibility that the belt would be reenergized in continued mining operations, the confluence of factors in this case convinces me that the hazardous condition was reasonably likely to result in injury. I therefore determine that the third Mathies element has been satisfied.