Peabody Coal Company

Plain-English summary

Peabody Coal Company challenged a citation alleging that its Martwick Mine operated without an approved ventilation plan. The dispute concerned a deep-cut provision requiring additional line-curtain placement and airflow during roof bolting. The Commission held that the Secretary proved the prior plan was unsuitable for the mine and that the new provision was suitable, relying on evidence about methane release, tracer-gas testing, and the roof bolter as a possible ignition source. It affirmed the judge's decision and dismissed the contest.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.316; 30 U.S.C. § 863(o)
• Outcome: The Commission affirmed the judge's decision that the disputed ventilation-plan provision was suitable and that the citation should remain affirmed.
• Key point: A mine-specific ventilation-plan provision may be required when substantial evidence shows that the previously approved plan no longer addresses the mine's conditions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                       May 22, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 91-179-R
:
PEABODY COAL COMPANY :

BEFORE: Jordan, Chairman; Holen and Marks, Commissioners1

                                        DECISION

BY THE COMMISSION:

   This contest proceeding arises under the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”). At issue is a citation,2 issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”), alleging that Peabody
Coal Company (“Peabody”) violated 30 C.F.R. § 75.316 (1991) by operating a mine without an
approved ventilation plan.3 The Commission previously remanded this matter to the

   1
     Commissioner Doyle participated in the consideration of this matter but resigned from

the Commission before its final disposition. Commissioner Riley assumed office after this case
had been considered and decided at a Commission decisional meeting. A new Commissioner
possesses legal authority to participate in pending cases, but such participation is discretionary.
Mid-Continent Resources, Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of efficient
decision making, Commissioner Riley has elected not to participate in this matter.
2
Originally, this proceeding involved a second citation at another of Peabody’s mines, the
Camp No. 2 Mine (15 FMSHRC 381, 382 (March 1993)); however, that mine is no longer
operating and the Secretary has withdrawn the citation against it. S. Br. at 4 n.3.
3
Former 30 C.F.R. § 75.316 implemented section 303(o) of the Mine Act, 30 U.S.C.
§ 363(o), and provided:

                   A ventilation system and methane and dust control plan and
           revisions thereof suitable to the conditions and the mining system of
           the coal mine and approved by the Secretary shall be adopted by the

Page 2

administrative law judge to determine whether a disputed ventilation plan provision was “suitable”
to the conditions at Peabody’s mines. Peabody Coal Co., 15 FMSHRC 381, 388 (March 1993)
(“Peabody I”). The Commission stated that the Secretary of Labor bears the burden of proving
the suitability of a disputed plan provision. Id. On remand, Administrative Law Judge Gary
Melick concluded that the Secretary established that the disputed plan provision was suitable.
Peabody Coal Co., 15 FMSHRC 1703 (August 1993) (ALJ). The Commission granted
Peabody’s petition for discretionary review (“PDR”). For the reasons that follow, we affirm the
judge.

                                             I.

                           Procedural and Factual Background

   A.      Peabody I

     The background facts in this proceeding are fully set forth in Peabody I, 15 FMSHRC at

382-85, and are summarized here. Peabody’s Martwick Mine utilizes a method of continuous
mining known as “deep cut” or “extended” mining that involves making cuts deeper than 20 feet
from the last full row of permanent roof supports. Id. at 382 & n.2. In January 1991, as a result
of its regular 6-month review of Peabody’s ventilation plan at the mine, MSHA insisted that
Peabody include in the plan a deep cut ventilation provision applicable to the roof bolting stage of
the mining cycle. The new provision required Peabody to extend the line curtain during roof
bolting in deep cut entries to within 10 feet of the last row of bolts being set and to supply 3,000
cubic feet per minute (“cfm”) of air at the inby end of the curtain. In Peabody’s previously
approved plan, the line curtain was not placed in deep cuts until completion of roof bolting and
there was no prescribed minimum air volume during roof bolting. Id. at 15 FMSHRC at 382-83;
15 FMSHRC at 1703 (ALJ decision on remand).

   Peabody objected to inclusion of the new provision. After unsuccessfully negotiating with

Peabody, the Secretary refused to approve a revised ventilation plan that did not contain the
disputed provision and issued a citation to Peabody alleging a violation of section 75.316 for

           operator and set out in printed form on or before June 28, 1970.
           The plan shall show the type and location of mechanical ventilation
           equipment installed and operated in the mine, such additional or
           improved equipment as the Secretary may require, the quantity and
           velocity of air reaching each working face, and such other
           information as the Secretary may require. Such plan shall be
           reviewed by the operator and the Secretary at least every 6 months.

When MSHA revised and renumbered its ventilation plan standards in 1992, 30 C.F.R. § 75.316
was superseded by 30 C.F.R. § 75.370 (1995), 57 Fed. Reg. 20,868, 20,910-12, 20,924 (May 15,
1992).

                                             2

Page 3

operating without an approved plan. Peabody submitted, under protest, a plan containing the
provision required by the Secretary. Peabody I, 15 FMSHRC at 382-84.

     Peabody filed a notice of contest and a hearing was held. In his first decision, Judge

Melick concluded that the new deep cut ventilation provision was mine-specific and not a
standard of general application that was subject to rulemaking requirements. He determined that
Peabody had failed to negotiate with the Secretary in good faith over the provision and affirmed
the citation. 13 FMSHRC 1332, 1335-37 (August 1991) (ALJ). On review, the Commission
affirmed the judge’s finding that the deep cut ventilation provision was mine-specific but, contrary
to the judge, found that Peabody had negotiated in good faith. 15 FMSHRC at 385-88. The
Commission remanded the case to the judge with the following instruction:

           We remand to the judge to decide whether the disputed provision
           was “suitable” to Peabody’s mine[], as contemplated by 30 U.S.C.
           § 863(o). The Secretary bears the burden of proving that the plan
           provision at issue was suitable to the mine[] in question.

Id. at 388.

     Peabody filed a petition for reconsideration with the Commission requesting clarification

that the Secretary’s burden of proof included a showing that Peabody’s previously approved
ventilation plan was unsuitable in addition to demonstrating that the disputed plan provision was
suitable. The Secretary responded that, because he sought to have Peabody make changes in a
previously approved plan, he had no objection to bearing the burden of proving both the
unsuitability of the previously approved plan and the suitability of the new plan provision. The
Commission denied the petition and ordered that the issues raised by Peabody be determined in
the first instance by the judge on remand. Peabody Coal Co., 15 FMSHRC 628 (April 1993)
(“Peabody II”).

    B.     Present Proceeding

   On remand, the judge took further evidence on the issues of the unsuitability of the

previously approved ventilation plan and the suitability of the new plan provision the Secretary
had proposed. Tr. III. 3-4.4 At the hearing, the Secretary modified the proposed plan provision
because further testing revealed that, with airflow of 3,000 cfm at the inby end of the line curtain,
there was sufficient ventilation to the face areas with a shorter line curtain. Under the modified
plan provision, the line curtain was to be extended only to the fourth row of roof bolts outby the
row being installed (about 20 feet from the last row of roof bolts); under the earlier proposed

    4
      The judge conducted two hearings in this matter, the first on August 7 and 8, 1991, and

the second, after remand, on June 17, 1993. “Tr. I” refers to the transcript volume of the hearing
on August 7; “Tr. II” to the August 8 hearing transcript; and “Tr. III” to the June 17 hearing
transcript.

                                              3

Page 4

provision, the line curtain was extended to the second row of roof bolts outby the row being
installed (about 10 feet from the last row of roof bolts). 15 FMSHRC at 1704 n.2; Tr. III 19-21;
Gov’t Ex. 6A. The Secretary presented testimony and test results to support his position that the
purpose of the new ventilation provision was to remove methane, respirable dust, and fumes from
the face area during roof bolting and that, without such ventilation, an ignition was possible
because of the presence of the roof bolter. Peabody introduced the results of its own ventilation
studies regarding the sources and quantities of methane released in the mine. 15 FMSHRC at
1703-05.

    The judge concluded that the Secretary met his burden of proving that the prior plan was

no longer suitable to the mine and that the proposed plan provision was suitable. 15 FMSHRC at
1705-06. The judge found that the mine liberates large amounts of methane and is subject to 15-
day spot inspections under section 103(i) of the Mine Act, 30 U.S.C. § 813(i), for mines liberating
more than 200,000 cubic feet of methane during a 24-hour period. He also found, based on
Peabody’s tests, that methane is liberated from the working faces of the mine. 15 FMSHRC at
1703-05. The judge relied on the Secretary’s tracer gas tests, which showed that, under the
previously approved ventilation plan, little or no methane present in unventilated deep cut areas
would be diluted or removed and that methane would accumulate in increasing concentrations
while the roof bolting machine was in operation. 15 FMSHRC at 1704-05. He noted that the
roof bolting machine could at any time become an ignition source. Id. at 1705. Finding the prior
plan unsuitable to address this safety hazard, he determined that the new plan provision addressed
the hazard because “the ventilating air clearly sweeps the face area.” Id. at 1704. Accordingly, he
affirmed the citation and dismissed the contest. Id. at 1706.

                                            II.

                                       Disposition

   A.      Position of the Parties

    Peabody argues that the judge’s formulation of the test for suitability was erroneous.

PDR at 2; P. Br. at 16. Peabody asserts that the judge permitted the Secretary to articulate only a
“possible hazard, without making any showing that the hazard exists or is reasonably likely to
occur at Martwick . . . .” P. Br. at 16. Peabody also argues that the Martwick Mine has
operated safely for years without the provision in question. P. Br. at 17. Peabody further asserts
that: the showing the judge imposed on the Secretary was inconsistent with the Commission’s
remand instructions; the judge’s suitability determination was premised on the incorrect
assumption of a requirement that there be adequate ventilation to the face during roof bolting;
evidence was lacking that methane accumulated at the face during roof bolting; and the previous
plan provision required adequate ventilation of face areas during active mining. P. Br. at 18, 20,
27, 29-31.

                                             4

Page 5

     The Secretary argues that substantial evidence supports the judge’s determination that the

previously approved plan was unsuitable and the proposed plan provision was suitable. S. Br. at
9-19. The Secretary further argues that plan provisions should be given the same legal effect as a
mandatory standard adopted through rulemaking and should therefore be reviewed under an
arbitrary and capricious standard of review. S. Br. at 26-34. In response, Peabody contends that,
because the procedural safeguards of notice-and-comment rulemaking are absent in the plan
approval context, the arbitrary and capricious standard of review is inappropriate.
P. Reply Br. at 17-20.

   B.      Analysis

    Section 303(o) of the Mine Act, the statutory sponsor of the ventilation plan regulation at

issue, provides:

                   A ventilation system and methane and dust control plan and
           revisions thereof suitable to the conditions and the mining system
           of the coal mine and approved by the Secretary shall be adopted by
           the operator . . . .

30 U.S.C. § 863(o) (emphasis added). As the Commission noted in Peabody I, “[M]ine
ventilation or roof control plan provisions must address the specific conditions of a particular
mine.” 15 FMSHRC at 386. See UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989). While
the contents of a plan are based on consultation between the Secretary and the operator (see, e.g.,
Penn Allegh Coal Co., 3 FMSHRC 2767, 2773 (December 1981)), “the Secretary must
independently exercise his judgment with respect to the content of such plans in connection with
his final approval of the plan.” UMWA v. Dole, 870 F.2d at 669 n.10, quoting S. Rep. No. 181,
95th Cong., 1st Sess. 25 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 613 (1978).

     We reject Peabody’s proposal that the Secretary be required to prove the hazard

addressed by a new plan provision either exists or is reasonably likely to occur. Section 303(o), in
setting forth the requirement that a ventilation plan be suitable to mining conditions, does not
require that plan provisions be based on the existence of specific hazards or the likelihood that
specific hazards may occur. In the absence of a statutory definition or a technical usage of the
term “suitable,” we apply the ordinary meaning of the word. See Thompson Brothers Coal Co., 6
FMSHRC 2091, 2096 (September 1984). “Suitable” is defined as “matching or correspondent,”
“adapted to a use or purpose: fit,” “appropriate from the viewpoint of . . . convenience, or fitness:
proper, right,” “having the necessary qualifications: meeting requirements.” Webster’s Third New
International Dictionary 2286 (1986). We conclude that the Secretary carried his burden of
proving the unsuitability of the former plan and the suitability of the new provision once he
identified a specific mine condition not addressed in the previously approved ventilation plan and
addressed by the new provision.

                                             5

Page 6

    In order to establish that, under former section 75.316, Peabody improperly refused to

include a provision in its ventilation plan, the Secretary agreed for purposes of this litigation to
assume the burden of proving: (1) the previously approved plan is no longer suitable to the
conditions and the mining system of the coal mine, and (2) the new plan provision is suitable.
Peabody II, 15 FMSHRC 628. The Commission is bound by the substantial evidence test when
reviewing an administrative law judge’s factual determination. 30 U.S.C. § 823(d)(2)(A)(ii)(I).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” See, e.g., Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (November 1989), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). We are guided by the settled principle that, in reviewing the whole record, an appellate
tribunal must also consider anything that “fairly detracts” from the weight of the evidence that
may be considered as supporting a challenged finding. Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951).

    The Secretary’s concern with ventilation of deep cuts during roof bolting originated with a

report by MSHA’s Pittsburgh Safety and Health Technology Center, “Ventilation Requirements
and Procedures for Extended (Deep) Cuts with Remote Controlled Continuous Miners.” Tr. I
26-31; Gov’t Ex. 2. In response to that report, the Secretary began reviewing plans to determine
whether and how deep cuts should be ventilated. Tr. I 48-49. The Secretary concluded that
Martwick’s previous plan requiring no ventilation during the roof bolting stage was inadequate.
Tr. II 14-15, 82-84; Tr. III 71.

    Further, Peabody’s own ventilation study revealed that methane was released at faces

following deep cuts. The Martwick Mine liberates large amounts of methane and is subject to 15-
day review under section 103(i) of the Mine Act. 15 FMSHRC 1703-04. The record confirms
the inherently unpredictable nature of methane liberation. Tr. III 28, 41-42, 71, 215-17, 224-25.
Additionally, as the judge found, the roof bolter presented an ignition source and posed an
“extreme potential hazard” under the prior plan if methane were to accumulate at dangerous
levels. 15 FMSHRC at 1705. The Secretary’s tracer gas tests also demonstrated that, without
the recommended provision, sufficient air to dilute methane concentrations did not reach the face.
Concerning the suitability of the new provision, the Secretary’s tracer gas tests showed that the
new provision would adequately ventilate the face and dilute any methane concentrations present.

   Accordingly, we find that substantial record evidence supports the judge’s finding that the

previously approved plan was unsuitable and the new provision was suitable to conditions at the
Martwick Mine.

     We reject Peabody’s assertion that the judge based his decision, in part, on a mistaken

belief that the Secretary’s regulations require a certain level of ventilation during roof bolting.
PDR at 8; P. Br. at 21-22. We agree with the Secretary (S. Br. at 19 n.9) that the judge did not
rest his determination on an assumption that ventilation of deep cuts during roof bolting was

                                              6

Page 7

required by mandatory standards. Rather, the judge concluded that the Secretary had presented
sufficient evidence to prove that such ventilation was suitable to the Martwick Mine. 15
FMSHRC at 1705.5

    Peabody also asserts that its prior plan required a deflector curtain in deep cuts. PDR at

13; P. Br. at 27-28. If this is an argument that the prior plan contained the same line curtain
requirement as the proposed provision, we reject it. The prior plan did not require installation of
curtain before completion of roof bolting and did not specify minimum airflow or a particular
length of line curtain, the requirements that the Secretary sought to impose in the new provision.

    We need not reach the Secretary’s argument that, because a plan provision once approved

by the Secretary has the same legal effect as a mandatory standard, he is to be accorded deference
and the plan provision is to be reviewed under an arbitrary and capricious standard of review. S.
Br. 26-28. The Secretary’s position on this issue was rejected by the judge (see Order Denying
Motion for Summary Decision, May 22, 1991) and the Secretary did not seek review. The issues
on review were defined by the Commission’s remand order and are narrowly focused--whether
the Secretary carried his burden of proving that the previously approved plan was unsuitable and
that the new plan provision was suitable to the conditions at the Martwick Mine. While we note,
as did the court in UMWA v. Dole, 870 F. 2d at 669 n.10, that the plan approval process involves
an element of judgment on the part of the Secretary,6 when that judgment is challenged, the
Secretary must sustain his burden of proof with regard to suitability.

   5
      Given our conclusion, we need not rule on Peabody’s assertion that no minimum level of

ventilation is required during roof bolting. However, we note that section 303(b) of the Mine
Act, 30 U.S.C. § 863(b), requires delivery of a minimum quantity of 3,000 cfm of ventilating air
at each “working face.”
6
See also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of
approval of water impoundment plan was not arbitrary or capricious where MSHA’s conduct
throughout the process was reasonable).

                                             7

Page 8

                                    III.

                                Conclusion

For the foregoing reasons, we affirm the judge’s decision.

                                 Mary Lu Jordan, Chairman




                                 Arlene Holen, Commissioner




                                 Marc Lincoln Marks, Commissioner




                                     8