Peabody Coal Company

Plain-English summary

Peabody Coal challenged two citations alleging that its Martwick and Camp No. 2 mines were operating without approved ventilation plans. The dispute concerned requirements for extending line brattice and maintaining at least 3,000 cubic feet per minute of air during roof bolting in deep cuts. Judge Gary Melick found that the requirements were mine-specific conditions that could be imposed through the ventilation-plan approval process, rather than general rules requiring notice-and-comment rulemaking. He affirmed the citations and dismissed the contests because Peabody had not negotiated in good faith about the disputed plan provisions.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.316
• Outcome: Both citations were affirmed and the contests were dismissed.
• Key point: Mine-specific ventilation-plan requirements may be enforced through the plan approval process when they are tied to the conditions of the particular mines.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

PEABODY COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. KENT 91-179-R
SECRETARY OF LABOR, Citation No. 3419830; 2/11/91
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Martwick UG Mine
RESPONDENT Mine ID 15-14074

                                  Docket No. KENT 91-185-R
                                  Citation No. 3419831; 2/21/91

                                  Camp No. 2 Mine
                                  Mine ID 15-02705

                               DECISION

Appearances: David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for the Contestant;
W. F. Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, Tennessee, for
Respondent.

Before: Judge Melick

 These expedited Contest Proceedings were filed by the

Peabody Coal Company (Peabody) pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq., the "Act," to challenge two citations issued by the
Secretary of Labor alleging violations of the mandatory standard
at 30 C.F.R. 75.316 for operating the cited mines without
approved ventilation plans. (Footnote 1) The citations were taken
to obtain review of the disapproval by the Mine Safety and Health
Administration (MSHA) District Manager of ventilation plans
submitted by Peabody. The underlying dispute involves the
ventilation of "deep cuts" of up to 34 feet during the roof
bolting cycle of the mining process. In particular MSHA is
seeking in these ventilation plans a provision requiring that
during the roof bolting cycle line brattice will be maintained to
the second row of roof bolts located outby the working face and
with a minimum of 3000 c.f.m. of air behind the line brattice. A
diagram of the proposed requirement is displayed in Contestant's
Exhibit Q at pages 23 and 24 and attached hereto as Appendices A
and B respectively. These provisions will hereafter be noted as
the "roof bolting ventilation requirement".

 In challenging the citations at bar Peabody has maintained

that the roof bolting ventilation requirement was not mine
specific to the particular conditions of the subject mines but
was of such a general nature and was applied generally to all
mines throughout the MSHA district without consideration of
specific mine conditions so as to be subject to the rulemaking
process of mandatory safety standards, and was therefore
improperly imposed in the ventilation plan approval process.

 This issue was decided in a bench decision at bifurcated

hearings in these cases and is set forth below with only
non-substantive changes:

      JUDGE MELICK: I am prepared to rule on the issue before
      me now. Let me just give some background of the law as
      it relates to the ventilation plan approval process.

    The institution of a ventilation, methane and dust
    control plan through the process of Secretarial
    approval and operator adoption is set forth in Section
    303 of the Act and under 30 C.F.R. Section 75.316,
    which essentially reiterates the provisions of the Act.
    The purpose of the approval-adoption procedure is to
    provide a plan whose provisions are effective and
    suitable to the conditions and mining system of a
    particular mine. Once a plan is approved and adopted, the
    provisions of the plan are enforceable at the mine
    as though they were statutory safety standards. The
    authority for that proposition is of course Zeigler
    Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976).

    The bilateral approval-adoption process which
    supplements the Act's rulemaking procedures involves
    consultation and negotiation between MSHA and only the
    affected operator, whereas generally applicable
    standards are the product of notice and comment
    rulemaking pursuant to Section 101 of the Act. The
    scope of a mine-specific plan is restricted to the mine
    in which the plan will be implemented, whereas a
    rulemaking safety or health standard applies
    across-the-board to all affected mines.

    In the Zeigler case, the court held that the
    approval-adoption procedure is not to be used by the
    Government to impose general requirements of a variety
    well-suited to all or nearly all coal mines. It upheld
    the operator's right to contest MSHA's requirement for
    a plan provision that relates not to the particular
    circumstances of its mine but, rather, imposes a
    provision of a general nature which should be addressed
    and formulated in rulemaking proceedings.

    In the Carbon County Coal Company decisions of the
    Commission, 6 FMSHRC 1123 in 1984, and 7 FMSHRC 1368 in
    1985, the Commission found the Zeigler analysis to be
    "persuasive and compelling" and held that the
    provisions of 30 C.F.R. Section 75.316 do not permit
    MSHA to impose, as a condition of approving an
    operator's ventilation plan, a general rule applicable
    to all mines.

    The specific issue then before me at this time is
    whether the ventilation plan provisions that are now at
    issue regarding the ventilation of deep cuts at the
    Martwick and Camp Number 2 Mines are specific to the
    particular conditions of the subject mines, or whether
    those provisions are of such a general nature as to be
    subject to the rulemaking process of mandatory safety
    standards and therefore ought not to be imposed through
    the ventilation plan approval process. I am persuaded
    by the evidence in this case presented today that MSHA's
    insistence upon the inclusion of these particular
    ventilation requirements, that is the extension of line
    brattice and a certain minimum ventilating air in areas
    of deep cuts during the roof bolting cycle at the
    Martwick and the Camp Number 2 Mines is not a general
    requirement subject to the rulemaking procedures but
    rather is mine specific. The testimony of all the MSHA
    witnesses as well as the testimony of Martwick mine
    superintendent, Mr. Jernigan, supports this position.

    The relevant MSHA witnesses detailed a number of
    specific criteria that were in fact, and presumably
    will continue to be, examined on a mine-by-mine basis
    to resolve whether or not these particular requirements
    are going to be needed in a ventilation plan. I find
    Mr. Jernigan's corroborating testimony particularly
    compelling in this case that he was told by Mr. Casteel
    [MSHA Chief of Engineering Services] and Mr. Stanley
    [MSHA Ventilation Specialist] that the reason for the
    new requirements implemented at the Martwick Mine was
    its high methane liberation and that mines with deep
    cuts were being examined on a mine-by-mine basis. This
    conclusion that this is a mine-specific requirement is
    further supported by the evidence that two mines within
    MSHA District 10 having comparatively low methane
    liberation have not been required to incorporate in
    their plans the new provisions that have been required
    at the Martwick and Camp No. 2 Mines in these cases, and
    they apparently will not be required to incorporate those
    provisions in their current plans now under review.

    So within the framework of that evidence I have no
    difficulty concluding that the provisions at issue here
    are mine-specific and not generally applicable to all
    mines either in MSHA District 10 or generally
    applicable to all other mines. I would comment with
    respect to the number of operator witnesses who
    testified of having no recollection or having a
    different construction or other interpretation of what
    may have been said at the MSHA-Peabody meetings but I
    discount that testimony in light of Mr. Jernigan's
    testimony in particular. Apparently there may have been
    semantical problems, maybe people heard what they
    wanted to hear and did not hear what was actually
    spoken. There may not have been as clear an
    understanding during these meetings but I have no
    difficulty concluding as I have concluded.

      Now, I would like the parties to meet further to try to
      resolve this problem either tonight and/or before
      commencing trial tomorrow. I don't believe that,
      particularly based upon the preliminary discussions this
      morning and what counsel came back to me with, that
      Peabody has really been seriously forthcoming with
      negotiations on resolution of this problem. Maybe now
      based upon this preliminary ruling a more serious
      consideration can be given to this. I will certainly
      consider that in evaluating whether there have been good
      faith negotiations which will be the next issue to be
      reached tomorrow morning. So I would ask counsel to get
      together and arrange for continuing discussions. We will
      commence back here at least initially in this courtroom.
      We may get another courtroom with better ventilation, but
      we'll initially meet here at 9 o'clock tomorrow morning.
      So that concludes today's proceedings.

 Under the Carbon County Coal Company, 7 FMSHRC 1367 (1985),

decision, MSHA and the mine operator are under a duty to
"negotiate in good faith and for a reasonable period concerning a
disputed provision" in a ventilation plan. The Secretary
maintains in this regard that not only did Peabody fail to
negotiate in good faith but that Peabody failed to negotiate at
all.

 It is clear from this record that Peabody has maintained

from the beginning of this controversy that the proposed changes
could not be imposed by the ventilation plan approval process
without an applicable mandatory standard. I believe that this
position was based upon good faith reliance on a decision of a
Commission Administrative Law Judge holding that similar proposed
provisions in a ventilation plan were, under the circumstances of
that case, not proven to be mine specific but rather were shown
to have been generally applicable and were therefore subject to
the rulemaking process of mandatory standards. See Peabody Coal
Company v. Secretary, 10 FMSHRC 12 (1988).

 However good faith reliance on a colorable legal position

must be distinguished from good faith negotiations. From the
record in this case thus far it is apparent that Peabody has been
relying upon this position as a basis for not negotiating
regarding the specific underlying safety issue. It is therefore
clearly premature for the Commission to intervene in the
approval-adoption process. See Carbon County Coal Company,
supra.; Secretary of Labor v. Penn Allegh Coal Company, 3 FMSHRC
2767 (1981); and Bishop Coal Company, 5 IBMA 231, 1 MSHC 1367
(1975). The citations at bar must accordingly be affirmed and the
Contests of those citations dismissed.

                                      Gary Melick
                                      Administrative Law Judge

Footnote starts here:

 1. Citation No. 3419830 reads as follows:

      The mine is presently operating without an approved

ventilation plan. Plans which were submitted December 28, 1990,
January 10, 1991, and February 7, 1991, were considered to be not
suitable for approval. Written notification from the District
Manager of MSHA District 10 was mailed to the operator stating the
changes needed in the plan. These were mailed January 10, 1991,
and January 30, 1991. As of this time a suitable plan has not been
submitted.

      Citation No. 3419831 reads as follows:

      The mine is presently operating without an approved

ventilation plan. Plans which were submitted November 31, 1990,
January 4, 1991, February 1, 1991 and February 19, 1991, were
considered to be not suitable for approval. Written notification
from the District Manager of MSHA District 10 was mailed to the
operator stating the changes needed in the plan. These were mailed
December 1990, January 14, 1991, February 2, 1991, and telephone
conversations were held with the operator's agents as a meeting
concerning the plan was held in the MSHA office February 19, 1990.

APPENDIX A

APPENDIX B