Secretary of Labor v. Knight Hawk Coal, LLC

Plain-English summary

The Secretary asked the Commission to stay its earlier ruling that vacated MSHA's revocation of Knight Hawk Coal's long-approved ventilation plan for perimeter mining. The majority found no supported scenario showing irreparable harm from continued use of the plan, which had operated for 12 years and produced no concerning methane measurements in the record. It also found that the Secretary had not shown a likelihood of success on appeal, harm to other parties, or a public-interest basis for extraordinary relief. The Commission therefore denied the stay and left the reinstated plan in effect. Commissioner Arthur Traynor dissented, reasoning that the operator should not mine under a plan MSHA no longer approved and that miner safety and the Secretary's likelihood of success favored a stay.

Decision snapshot

• Cited authority: 30 U.S.C. § 863(o); 30 C.F.R. § 75.370(d)
• Outcome: The Secretary's motion to stay the Commission's ventilation-plan decision pending appeal was denied.
• Key point: A stay requires record-supported irreparable harm and a likelihood of success, which the majority found absent despite the dissent's safety concerns.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,                              :        

MINE SAFETY AND HEALTH                    :                                

ADMINISTRATION (MSHA)                       :         Docket
No. LAKE 2019-0087-R

:                        

v.                                              
:                                      

:                                                        

KNIGHT HAWK COAL, LLC                         :

BEFORE: Rajkovich, Chairman; Althen and
Traynor, Commissioners

ORDER

BY: Rajkovich,
Chairman, and Althen, Commissioner

This proceeding comes before us on a Motion for Stay
by the Secretary of Labor (“Secretary”). The Secretary seeks a stay of the
Commission’s decision of July 23, 2020 affirming a decision of the Administrative
Law Judge (“ALJ”) which vacated the Mine Safety and Health Administration’s
(“MSHA”) revocation of a 12-year longstanding MSHA-approved ventilation plan of
Knight Hawk Coal, LLC’s Prairie Eagle
Underground Mine (“PEUM”). [1]
We affirmed the vacation of that attempted revocation and that such vacation of
the Secretary’s attempted revocation resulted in the reinstatement of that
plan.            

We review the
Secretary’s motion under the familiar four factor formula set forth in S ecretary
on behalf of Price and Vacha v. Jim Walter Resources, Inc. , 9 FMSHRC 1312 (Aug. 1987); UMWA ex rel. Fra nk s &
Hoy v. E merald Coal R es ., L P , 35 FMSHRC 2373, 2374 (Aug. 2013) (noting
that a “stay constitutes ‘extraordinary relief’”). These are (1) a likelihood
that the party will prevail on the merits of its appeal; (2) irreparable harm
to it if the stay is not granted; (3) adverse effects on other interested
parties; and (4) the public interest. See 35 FMSHRC at 2374.

Based upon those factors, and the
discussion set forth below, the Secretary’s motion for a stay is denied.

I.                

BACKGROUND

A. General

Sufficient ventilation of underground coal mines
is critical for miner health and safety. It is crucial that there be a
sufficient quantity and flow of uncontaminated air to provide miners fully
adequate oxygen and to avoid exposure to toxic levels of harmful contaminants. The
ventilation system must also sweep away any liberated methane and any other
noxious gases. To assure sufficient ventilation, the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”), and mandatory
safety standards apply a two pronged approach. Mine Act sections 303(a) through
(z) contain extensive statutory ventilation requirements. 30 U.S.C. § 863. Separately, from the enforcement agency perspective,
the Mine Safety and Health Administration (“MSHA”) enforces extensive mandatory
safety standards at 30 C.F.R. subpart D, sections 75.300 through 75.389, regulating
underground coal mines’ ventilation to achieve safe and healthy mine
atmospheres. Of course, MSHA inspectors frequently inspect mines in order to
assure compliance.

Pursuant to
section 303(o), 30 U.S.C. § 863(o), the operator
must develop a ventilation system, methane, and dust control plan. Because the
plan must be “suitable to the conditions and the mining system of the coal
mine,” it is the operator’s duty to develop the plan. Id. In short, it
is the operator’s plan. After the operator prepares its plan, it must submit
the plan to MSHA for review for suitability before it is implemented.

B. Knight Hawk’s Ventilation Plan

An important and
unusual factor in this case is that it does not involve a request for
approval of a newly-submitted plan. Instead, it arises from a decision by MSHA
to revoke an existing, approved ventilation plan that had been in place
for more than 12 years. That plan allowed Knight Hawk to utilize “perimeter
mining,” which is a method wherein it was allowed to take 40 foot long cuts of
coal from the perimeter of the area being mined as it “retreated” from a section
that had been advance-mined. In perimeter mining, the operator mines coal in diagonals
along the edges of the area from which it is leaving. See Attachment 1.

Knight
Hawk received conditional approval for its ventilation plan 14 years ago in
2006. During the initial startup of the mine, the plan was subject to an
initial evaluation that continued for 41 months. 41 FMSHRC 522, 524-25 (Aug.
2019) (ALJ). MSHA District 8 granted unconditional approval 4 years later in
2010, and again in 2015. Id. at 526.

Three
years later, on January 9 and 10, 2018, MSHA performed an evaluation of
the bleeder system which included areas where perimeter mining was being conducted
at PEUM . After that evaluation, the parties
engaged in conversations and correspondence regarding the suitability of the
approved ventilation plan. Finally, 11 months later, on November 14, 2018,
MSHA’s District Manager sent a letter to Knight Hawk revoking approval of the
approved plan. Id. at 526-27. Thus, Knight Hawk had been
operating under the approved ventilation plan, reviewed by multiple MSHA
District Managers, for 12 years until its revocation in 2018.

Thereafter, the
parties followed the procedure for issuance of a technical citation and
challenge. [2]
The validity of MSHA’s revocation of the approval of the plan was heard before the
ALJ at a three day hearing on March 28-April 1, 2019.

II.              

ALJ AND
COMMISSION REVIEW

After the hearing, the ALJ made extensive
findings of fact and reached legal conclusions. He vacated MSHA’s revocation of
the approved plan as arbitrary and capricious and reinstated the approved plan.
After briefing and oral argument, the Commission affirmed the ALJ’s decision 3
– 2. Rather than attaching the full ALJ Decision, summaries of findings of fact
in the ALJ’s Decision are set forth in Attachment 2.

III.            

STANDARD
OF REVIEW

We review the request for a stay
according to the factors identified in  Virginia Petroleum Jobbers
Association v. Federal Power Commission , 259 F.2d 921 (D.C. Cir. 195 8) and accepted
by the Commission in UMWA ex rel. Fra nk s &
Hoy v. E merald Coal R es ., L P , 35 FMSHRC at 2374 (noting that a “stay
constitutes ‘extraordinary relief’”). Again, the factors are (1) a likelihood
that the party will prevail on the merits of its appeal; (2) irreparable harm
to the movant if the stay is not granted; (3) any adverse effect on other
interested parties; and (4) a showing that the stay is in the public interest.

With regard to
ventilation plan disputes, the D.C. Circuit identified the standard of review
for the Commission:

We review the
legal determinations of the Commission and its ALJs de novo and factual
findings for substantial evidentiary support. 30 U.S.C. § 816(a)(1) ;
Black Beauty Coal Co. v. Fed.
Mine Safety & Health Review Comm’n, 703 F.3d 553, 558 (D.C.Cir.2012) ; Sec’y of Labor v. Keystone Coal
Mining Corp.,
151 F.3d 1096, 1099 (D.C.Cir.1998) . We review evidentiary rulings
for abuse of discretion, Mach Mining, 728 F.3d at 659 ; cf.
Veritas Health Servs., Inc. v.
NLRB, 671 F.3d
1267, 1273 (D.C. Cir. 2012) , and accord “great deference” to the
ALJ’s credibility determinations, Keystone Coal , 151 F.3d at 1107 .

Prairie State Generating Co.,
LLC v. Sec’y of Labor , 792 F.3d 82, 89 (D.C. Cir. 2015). [3]
Accordingly, if MSHA denies plan
approval, it must be able to articulate a reasonable basis for such denial, and
not merely cite generalized dangers without any explanation of how the
circumstances of a specific mine might result in the occurrence of a hazard. This
means the Secretary must present a theory based on the actual evidence that an
injury might occur. Of course, there need not be a “likelihood” of any injury,
but there must be more than an unsupported theory. There must be supporting facts
in the record. The explanation must be based on reasons grounded in the facts
of the case as found by the ALJ. In short, the Commission applied the arbitrary
and capricious standard in affirming the ALJ’s decision under the proper
standard of review. [4]
We further apply those standards, here, in considering the Secretary’s
likelihood of success on appeal. [5]

IV.            

DISPOSITION

A. Irreparable Harm to MSHA and/or
Interested Persons

Ordinarily, we would start by analyzing the
likelihood that the Secretary would prevail on the merits. However, the
Secretary’s motion emphasizes the fear of a tragedy. A motion to stay anchored
by a forecast of a possible mine explosion is of paramount concern to us. Therefore,
we first consider the second and third factors described above.

Our primary focus must be on possible harm to
miners. Our central consideration on review of the underlying issue was the
possibility of irreparable harm that might arise from continued use of the long
approved plan. In a most important and very basic way, therefore, the issue of
irreparable injury runs throughout the Commission’s decision. The Secretary has
failed to make a showing of irreparable harm, absent a stay, for the same
reason the revocation was vacated. The Secretary has failed to articulate a scenario
under which a hazard arises from continued use of the long approved ventilation
plan.  

MSHA’s observations and measurements during its
review of perimeter mining in the survey did not find excessive methane in the
perimeter areas or any other areas of the relevant mining sections. [6]
In fact, every measurement of methane showed levels far below any measure of
concern. The ALJ accepted testimony from a Knight Hawk expert that there were
no ignition sources in the mine that might contribute to the dangers of methane
buildup. The ALJ also accepted the Knight Hawk expert’s testimony that in the
unlikely event of a roof fall in a perimeter cut, given the composition of the
roof, any methane would have been effectively diluted. [7]
41 FMSHRC at 546. The ALJ further found that the Secretary failed to rebut this
testimony. Moreover, the Secretary did not provide any evidence of the presence
of float coal dust or other particles in the end of a perimeter cut that could
propagate any ignition, even if a small ignition could have occurred.

The Secretary’s fundamental argument for a stay
is the claim that if Knight Hawk engages in perimeter mining during the appeals
process, it will be operating without an MSHA approved ventilation plan. [8]
That suggestion is unfounded.

After MSHA revoked the approval of the
ventilation plan, Knight Hawk invoked its statutory right to a review by the
Commission. A Commission Judge found that the Secretary’s decision was arbitrary
and capricious. Performing our statutory duties, we affirmed his decision
vacating the revocation.

The review process has rendered the revocation
null and void and, thus, returned the parties to the status quo ante. Consequently,
Knight Hawk is bound by that previously approved plan, and subject to MSHA
inspections for compliance with that plan. [9]
While MSHA defends its revocation decision during this appeal, Knight Hawk will
therefore be operating under an approved plan. For the Secretary to argue,
contrary to the results of the review process, that Knight Hawk must now be
mining without an approved plan is to assign ventilation decisions to an
endless loop that may be ended only by capitulation by the operator to MSHA’s
ventilation plan.  

As to the status quo ante, and as noted supra ,
Knight Hawk received conditional approval for its ventilation plan 14 years ago
in 2006. Operations under that plan had thereafter occurred for 12 years. Consequently,
we must take the continuation of that long approved plan into account in
considering the likelihood of irreparable harm while Knight Hawk operates under
that plan during the appeal. Continuing to operate under the previously
approved plan does not preclude MSHA from continuing to inspect and review
perimeter mining, generally, or specifically at the PEUM mine. Nothing in our
decision prevents such continued enforcement.         

Importantly, it appears MSHA allowed Knight
Hawk to continue to operate under that same plan until issuance of the
technical citation eleven months after the two day inspection and survey in
January 2018. After 12 years of operation without incident, and MSHA’s permitted
use of the plan for eleven months after the study, the Secretary must show that
irreparable harm may result from use of that same plan for the months required
for Circuit Court review. In other words, the essence of MSHA’s argument is
that the use of the plan presents a threat of irreparable harm now that
was not present previously, even after MSHA had been aware, for nearly a year,
of the conditions that supposedly rendered the plan unsuitable. There is no basis
for this in the record.

In sum, the Secretary provided essentially no
evidence of any set of circumstances that might result in a convergence of any
type of ignition in a perimeter cut with explosive quantities of methane. Moreover,
there is no evidence of any such incident occurring during the 12 years of
operation under the plan. In fact, at no time, either before the Judge or
during our review, has MSHA been able to provide a rational basis for its
concerns, as required under the standard of review.

B. Likelihood of Success on the Merits

The failure to even meet the minimum requirement
of providing a “satisfactory explanation” for its decision defeats MSHA’s
position on the other factors as well. The ALJ supported his findings of fact with
appropriate citations to the record, and MSHA has not explained how those
findings are defective or refuted by substantial evidence. The Judge also made
crucial credibility determinations in support of his decision. The deference
accorded the ALJ’s credibility determinations is especially notable here. Unlike
the Commission decisions in Mach Mining , 34 FMSHRC at 1784 and Prairie
State Generating Co., LLC , 35 FMSHRC 1985 (July 2013), the ALJ rejected the
MSHA witnesses’ testimony in this case. See, e.g. , 41 FMSHRC at 531
n.10, 532, 541. He did not overturn an MSHA decision to reject a new
proffered plan. He overturned MSHA’s revocation of an existing approved
plan. [10]

In making these findings, the ALJ relied upon
and cited the stipulations of the parties and specific testimony of evidentiary
and expert witnesses. His findings are based on substantial testimony as well
as his analysis of the basis, reliability, and credibility of the testimony and
evidence. Substantial evidence supports each of the findings. MSHA did not
build a factual foundation supporting a reasonable basis for its rejection of
the long-approved plan as suddenly unsuitable.

For
example, the ALJ found that MSHA’s tests were less accurate and its methods resulted in inconsistent and
inconclusive readings. Testimony
regarding the conditions supports his conclusion. MSHA’s survey used chemical smoke tests from 44 feet
away rather than more accurate gas-tracing tests. 41 FMSHRC at 534. The results of the chemical smoke tests were not
always repeatable . Id . Those readings
were brought further into question since
members of the MSHA team were not always in
agreement as to the results of the chemical smoke tests. Id . On at least one instance, revisions were made in
response to the reprimand of an inspector when she did not record observations
to the satisfaction of the MSHA supervisor. Id . Regarding that
supervisor, the ALJ did not find his testimony to be credible as an expert. In
contrast, the ALJ found Knight Hawk’s expert credible. Id .

MSHA’s survey also found that air flowed through
the section as required by the regulations. Methane readings throughout the
section were substantially below the allowable limits for methane concentration,
and the allowable limits of course are themselves far below an explosive
concentration. Id . at 536. The concentrations of methane and oxygen
established that the previously approved ventilation plan continuously diluted
and moved methane-air mixtures and other gases, dusts, and fumes from the
worked-out area. Id. at 546.

There also was no evidence of appreciable
methane anywhere in the perimeter mining area, and MSHA only had evidence of
meaningful methane in the mine from one sample bottle previously taken in the
roof of an active area not subject to perimeter mining. Under the approved
ventilation plan, any methane from the bleeder was being effectively diluted,
in accordance with the plan, the Mine Act, and the standards governing
ventilation. Id . at 536. At the time of the plan revocation, there was
no evidence of any spontaneous combustion event of any kind at any place in the
mine at any time over the years of its operations. [11]
Id .

Accordingly, the ALJ’s findings are based on
substantial testimony as well as his analysis of the credibility of that
testimony and evidence. MSHA simply failed to provide a reasonable basis for
rejection of the long approved plan.

The
ALJ’s conclusion that MSHA’s action was arbitrary corresponds directly to these
well-found facts. Having made the findings set forth above, the ALJ correctly analyzed
the controlling law and its application to the facts he had found. Citing Commission
decisions and the decisions of the circuit courts in Mach Mining , 728 F.3d at 658 and Prairie
State , 792 F.3d at 82 , the
ALJ reviewed MSHA’s decision under the arbitrary and capricious standard,
finding that the Secretary needed to establish only that MSHA’s revocation of
the mine’s previously approved ventilation plan was not arbitrary, capricious,
an abuse of discretion, or otherwise contrary to law. [12]

Utilizing the
guidance of Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983) , as applied by the D.
C. Circuit court in Mach Mining, the ALJ considered whether MSHA (1)
relied on factors that were not intended to be considered; 2) failed to
consider an important aspect of the problem; 3) offered an explanation for its
decision that ran counter to the evidence before the agency; or 4) was so
implausible that it could not be ascribed to a difference in view or the
product of agency expertise.

The ALJ found MSHA
acted in an arbitrary and capricious manner under Motor Vehicles Mfrs. , 463 U.S. at 43 , in that
MSHA was applying tests to perimeter mining that were not applied to any other
form of retreat mining. 41 FMSHRC at 549-50. Citing Burlington Northern & Santa
Fe R. Co. v. Surface Transp. Bd. , 403 F.3d 771, 777 (D.C. Cir. 2005) , the ALJ
found that MSHA failed to explain this conduct with a reasoned explanation and,
therefore, acted arbitrarily and capriciously by invoking such different
standards without explanation. Id . He also found that MSHA entirely
failed to consider important aspects of the revocation issue--the
no-less-protection standard. 41 FMSHRC at 560.

The Commission
agreed that, with no evidence to support a failure in any way of the approved plan
to meet the standard of suitability, there was no rational basis for rejection.
42 FMSHRC ___, slip op. at 13, No. LAKE 2019-0087-R (July 23, 2020). Further, no
evidence contradicted MSHA’s earlier conclusion that the approved plan controlled methane and dust effectively and protected
miners against the hazards of methane accumulations. It short, the plan was
suitable for the purposes of ventilation and MSHA failed to articulate a
reasonable basis for finding it unsuitable. [13]

The
thoroughness of the ALJ’s review, and our own review of the record, convinces us
that substantial evidence supports the findings of fact. In turn, we affirmed
the ALJ’s finding based on the evidence that the Secretary did not support
revocation of the approved mine plan by a reasoned explanation drawn from the
record. Consequently, the ALJ correctly determined that the revocation of the
approved mine plan was arbitrary and capricious.  

Having found the
findings of fact supported by substantial evidence, we agreed with the ALJ that
MSHA had not supplied a reasoned explanation for revocation of the approved
mine plan and, therefore, had acted with arbitrariness and caprice. Consequently,
we applied the arbitrary and capricious standard set forth by the D.C. Circuit
in Prairie State .            

We
find no support for the Secretary’s reliance on Pueblo of S andia v. B abb itt , 231 F. 3d 87 8 ( D.C. Cir.
2000). Mot. for Stay at 2 n.1. In Pueblo , the district court had
remanded the Solicitor of the Interior’s denial of a request for a corrected
land survey. On appeal, the circuit court dismissed the appeal for lack of
jurisdiction on the basis that the district court’s remand order was not final.
The circuit court noted that the decision below did not identify the true
boundaries of the land grant or direct Interior to take action, it simply
remanded the case for further proceedings. Id . at 881. Conversely, in
this matter neither the ALJ nor the Commission have ordered any further
proceedings.

In contrast here, Knight Hawk
exercised its right under the Mine Act to obtain Commission review of MSHA’s
final action of revoking a previously approved plan. In turn, the Commission,
acting pursuant to its statutory obligation, vacated MSHA’s decision which
reinstated the plan that had been revoked by MSHA. 42 FMSHRC at __, slip op at

2. There is nothing more for MSHA to consider with respect to its letter
   revoking the approval or its technical citation. While the parties may
   ultimately decide to enter talks to discuss a new plan approval process,
   the technical citation at issue is dismissed and finished and the originally
   revoked plan has been reinstated. Unlike the boundary dispute in Pueblo ,
   there is no unfinished business regarding the current plan dispute.

Moreover, the court in Pueblo commented
that the district court’s decision to remand to the agency for further
proceedings was consistent with precedent under the applicable judicial review
provision for the agency’s decision, section 706(2)(A) of the Administrative
Procedures Act (“APA”), 5 U.S.C. § 706(2)(A), where the agency record in
support of its decision was found wanting. Id . at 881. Section 706 of
the APA, however, was expressly excluded as applicable to the Mine Act
proceedings. See 30 U.S.C. § 956 (“Except as otherwise provided in this
Act, the provisions of sections 551 to 559 and sections 701 to 706 of Title 5 [of
the United States Code] shall not apply to the making of any order, notice, or
decision made pursuant to this Act, or to any proceeding for the review
thereof.”).

There is no provision in the
sections of the Mine Act governing Commission review of MSHA enforcement
actions that incorporates section 706 of the APA. In contrast, the drafters of
the Mine Act were quite cognizant of the APA, and did not hesitate to apply its
provisions to MSHA actions in certain instances. See 30 U.S.C. § 811(a)
(providing that section 553 of the APA would govern MSHA rulemaking
proceedings). The Mine Act drafters did not do so with respect to section
303(o). Consequently, Pueblo is inapplicable, here.

The Secretary argues that the Commission seeks
to shift responsibility for making technical policy and enforcement related
decisions to the Commission. This is simply untrue. Congress determined that cases arising under the Mine Act, including the
review of operational plans, must be subject to independent review. It is
therefore fundamental that actions of MSHA and/or the Secretary, such as
revocation of mining approvals, be reviewed to assure they are unbiased and
principled—that is, that they are reasoned and rational, rather than arbitrary
and capricious. That is the role of the Commission. See 30 U.S.C.
§ 823. The Secretary had the benefit of a full evidentiary hearing and review
under the most forgiving standard in administrative law, and could not provide
a plausible explanation grounded on substantial record evidence. Arguing that a
decision must be accepted when challenged based
solely on the credentials of the party making the argument is contrary to logic
and the law. Mach Mining and Prairie State require the Secretary
to provide a “satisfactory explanation” for his decision. 34 FMSHRC at 1790-91;
35 FMSHRC at 1983. He failed to do so.

In this case, the
Commission has not abrogated or interfered with the legitimate functions of the
Secretary. Rather, it reflects a permissible exercise of our authority under
the Act to assure that agency actions are at least made on the basis of reason
and facts rather than caprice and bias.

C. Interest of Third Parties

Neither the Secretary nor Knight Hawk presents
any significant argument with respect to the impact upon the interest of third
parties. [14]
As noted above, each ventilation plan is specifically tailored to each
mine. This approved Knight Hawk plan can only be used at PEUM. It is not
dependent upon any other plan issued to any other operator at any other mine. Likewise,
no plan issued to another operator for another mine is dependent upon the one
issued to Knight Hawk.

The Secretary failed to note that it
is uncontested that perimeter mining is safer than other forms of retreat
mining. [15]
It provides lower exposure to hazards that might occur during roof bolting or
working around moving equipment. The Secretary’s own hearing exhibit shows that
perimeter mining also affords lower exposure to respirable dust and noise. Sec’y
Ex. 2 at 3-6. That is clearly a benefit to the interest of PEUM’s miners.

D. The Public Interest

Finally, perimeter mining does
provide a positive public benefit in the protection of valuable surface
farmland from subsurface subsidence, since the support pillars are left intact
to support the surface. 41 FMSHRC at 530. Thus, it allows for the recovery of
the energy resource while protecting farmers and the environment.

MSHA has failed to support its
decision to revoke the operator’s plan because it has been unable to express a
reasonable basis for rejection of the approved plan. If there is no rational
basis for believing harm may occur, there is, a fortiori , no threat to
the public interest, either.

In fact, the contrary is true. The
Commission held that there is a public interest, expressed in the Mine Act, in
ensuring that public agencies adhere to the law and make rational decisions
respecting the matters delegated to them by Congress. Where Congress has
insisted, as it has in the Mine Act, that due process requires independent
review, the Secretary must defend his decision under the law. The public
interest, therefore, does not support the stay of a decision made in
conformance with the Mine Act and our precedents.

Accordingly, we find that the Secretary has not
proven (1) a likelihood that he will prevail on the merits of its appeal; (2)
irreparable harm if the stay is not granted; (3) adverse effects on other
interested parties; or (4) the public interest. Accordingly, his motion is
DENIED.   

/s/ Marco M. Rajkovich,
Jr.

Marco
M. Rajkovich, Jr. , Chairman

/s/
William I. Althen

William I. Althen, Commissioner

Commissioner Traynor, dissenting: 

Absent a stay of my colleagues’
decision that “the revocation of the operator’s plan was arbitrary and capricious,”
it appears Knight Hawk intends to engage in extended-cut perimeter mining at
the Prairie Eagle Underground mine without an MSHA-approved plan for at least
the duration of the Secretary’s appeal. [16]
Knight Hawk Coal, LLC , 42 FMSHRC __, slip op. at 18, No. LAKE
2019-0087-R (July 23, 2020) (“ Knight Hawk ”). The alternative, of course,
is that Knight Hawk be prohibited from extended-cut perimeter mining unless and
until it adopts a ventilation plan deemed acceptable by the Secretary for that
purpose, at least through a final decision from the Circuit Court or other
final resolution of this case.

The former approach is contrary to
a Congressional mandate and implementing regulations requiring that all
operators adopt an MSHA approved ventilation plan. See 30 U.S.C. §
863(o); 30 C.F.R. § 75.370(d) (“No proposed ventilation plan shall be
implemented before it is approved by the district manager.”). [17]
And, it places miners at a corresponding increased risk of injury, illness and
death. The latter approach, by contrast, encourages MSHA and the operator to
continue during the pendency of the appeal to address the safety concerns
uncovered by the Secretary’s investigation. And it does not involve the
Commission (or a reviewing court) making a decision that grants Knight Hawk
what amounts to unprecedented permission to mine without an MSHA approved
ventilation plan. [18]

The choice between these two
alternatives, arrived at by balancing the equitable factors used to evaluate a
stay request, is most saliently framed as follows: should this or any court
make a decision that would, for the first time ever, allow a mine operator to
operate a mine without a mine specific ventilation plan approved by the
Secretary of Labor? My answer, especially in light of the very strong
likelihood the Secretary will prevail on the merits of his appeal, is no. And
so for reasons discussed more fully below, I dissent from my colleagues’ decision
to deny the Secretary’s request for a stay of the Commission’s decision.

The Commission held that a party
seeking a stay must satisfy the factors set forth in Virginia Petroleum
Jobbers Ass’n v. Fed. Power Comm’n , 259 F.2d 921 (D.C. Cir. 1958): (1) a
likelihood that the party will prevail on the merits of its appeal; (2)
irreparable harm to it if the stay is not granted; (3) no adverse effect on
other interested parties; and (4) a showing that the stay is in the public
interest. UMWA ex rel. Franks & Hoy v. Emerald Coal Res., LP , 35
FMSHRC 2373, 2374 (Aug. 2013). “Each of these requirements may, of course, be
applied flexibly according to the unique circumstances of each case.” McSurely
v. McClellan , 697 F.2d 309, 317 (D.C. Cir. 1982).

The equitable factor weighing most
heavily in favor of granting the Secretary’s motion for stay is the high
likelihood he will prevail on the merits of his appeal. The Commission’s
majority decision in Knight Hawk was wrongly decided. More specifically,
the Commission decision fails to faithfully apply an arbitrary and capricious
standard of review, and thus, it is inconsistent with Commission and Court of
Appeals precedent. The majority, paying only lip service to controlling law,
concocted and applied a novel legal standard to review the Secretary’s decision
to deny approval of a mine operator’s proposed ventilation plan.

Section 303(o) of the Mine Act states that a
ventilation plan “shall” contain “such other information as the Secretary may
require,” and thus accords the Secretary discretion in determining what is
required in an operator’s ventilation plan. 30 U.S.C. § 863(o); Mach Mining,
LLC , 34 FMSHRC 1784, 1791 (Aug. 2012), aff’d , 728 F.3d 643 (7th Cir.
2013). Congress recognized that maintaining space for the exercise of this
discretion is essential, stating that “[t]he unpredictability of accidents in
mines and uncertainty as to the circumstances surrounding them requires that
the Secretary . . . be permitted to exercise broad discretion in order to
protect the life or to insure the safety of any person.” S. Rep. No. 95-181, at
29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 617 (1978).

If a dispute arises regarding the information
that the Secretary requires, an operator may challenge the Secretary’s
determination at a hearing before a Commission Administrative Law Judge. The
Secretary is required to demonstrate that the District Manager did not act in
an arbitrary and capricious manner – that is, the manager must have considered
the relevant data and provided a reasonable rationale based on the factors. Mach
Mining , 34 FMSHRC at 1790-91; Prairie State Generating Co .,
35 FMSHRC 1985, 1989 (Jul 2013), aff’d , 792 F.3d 82 (D.C. Cir. 2015)
(“The Secretary’s burden is to persuade the Commission that the district
manager did not abuse his discretion or act arbitrarily and capriciously in
making his suitability determination, for instance by failing to examine
relevant facts and draw reasonable conclusions.”). The arbitrary and capricious
standard of review focuses on the adequacy of the Secretary’s decision-making. Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co ., 463
U.S. 29, 43 (1983).

In Knight Hawk , the Commission majority held
– for the first time ever – that the Secretary does not have the discretion to
require information to be included in a ventilation plan unless the Secretary
is able to connect that requirement to “some plausible harm to miners from
methane, dust, noxious gases, or some other ventilation-related hazard.” Knight
Hawk , slip op. at 11; Knight Hawk , slip op. at 12 (The Secretary
must provide “a fact-based explanation for why the proposed plan could expose
miners to unsafe or unhealthful conditions.”). The majority’s holding is flatly
inconsistent with Mach Mining , Prairie State and other governing
case law. See also, e.g., Peabody Coal Co ., 18 FMSHRC 686 690 (May 1996)
(“[w]e 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.”); see also Hopkins County Coal, LLC , 557 Fed. Appx. 515,
520-21 (6th Cir. 2014), aff’g 35 FMSRHC 134 (Jan. 2013) (ALJ) (finding
that the Judge’s determination that there was a rational connection between the
facts and the requested revision does not depend on a precise finding of
potential harm.).   

My colleagues deny the Secretary’s motion for a
stay holding, in part, that the Secretary has not demonstrated a likelihood of
success on the merits of his appeal. Curiously, in analyzing the Secretary’s
likelihood of success, my colleagues focus entirely on the ALJ decision. [19]
The majority’s order makes no mention of the novel legal standard that they
applied for the first time on review in Knight Hawk , i.e., whether the
Secretary demonstrated some “plausible harm to miners from methane, dust,
noxious gases, or some other ventilation related hazard.” Knight Hawk , slip
op. at 11. Instead, the majority attempts to obscure their new standard from
focus, inaccurately claiming that it simply applied the arbitrary and
capricious standard set forth by the D.C. Circuit in Prairie State . Slip
op. at 8. In doing so, the majority ignores the Secretary’s primary argument as
to why a stay of the majority’s decision is warranted.

Accordingly, because the Commission
majority decision is inconsistent with the Mine Act and Commission and Court of
Appeals decisions, the Secretary has a very high likelihood of success on the
merits of his appeal. This factor is nearly controlling in the circumstances of
this case presenting the possibility that in the absence of a stay, for the
first time since enactment of the Mine Act, an operator may send miners
underground to mine pursuant to a ventilation plan the Secretary declined to
approve.

I do find plausible the Secretary’s contention
that absent a stay he and the miners at the Prairie Eagle mine will suffer
irreparable harm in the form of an increased risk of injury or death from
disastrous fire or explosion. In other contexts, courts have accepted an
increased risk that cannot be subsequently undone or remedied by damages as
irreparable harm. See, e.g. , Barbecho v. Decker , No. 20-CV-2821
(AJN), 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020) (finding irreparable
harm in the “significantly higher risk of contracting COVID-19” faced by
immigration detainees). And proper ventilation is essential to safely mining
coal underground. [20]

But the Secretary’s motion did not
provide much more than a conclusory statement that such harm is irreparable. The
record contains compelling evidence that the deep cuts Knight Hawk proposed
were not adequately ventilated and that the air was not controlled through the
blocks. [21]
Knight Hawk , slip op. at 22 (citing Tr. 78-79, 96-97). In addition, the
record reflects MSHA’s serious concern whether mine examiners could accurately
assess the ventilation system. Id . at 23-24. When marshalled, the record
facts bolster the Secretary’s claim that if Knight Hawk is permitted to operate
under the terms that were specifically rejected over concerns about air
control, the Secretary and Knight Hawk miners face an unacceptable and
irreparable increase in risk of accidents contributed to by inadequate air
flow.

A stay of the Commission’s decision pending
appeal is plainly in the public interest. The decision to grant a stay
preserves intact an unbroken history going back even to the predecessor of the
1977 Act of requiring underground mining only pursuant to an MSHA approved
ventilation plan. No Commission majority or court has ever before allowed
mining outside the terms of an approved plan and the public – to include Knight
Hawk’s competitor companies who were unable to secure approval of ventilation
plans to perform perimeter mining – has an interest in this stay being granted
to ensure the continued and consistent enforcement of the Act.

Viewed in light of the unique
circumstance whereby denial of the Secretary’s stay petition will permit the
operator to mine without an approved ventilation plan and the Secretary’s
overwhelming likelihood of success on appeal, a stay to protect miners from
unnecessary increased risk pending resolution of this appeal was the proper
course of action.

/s/
Arthur R. Traynor, III

Arthur
R. Traynor III, Commissioner

ATTACHMENT 1

ATTACHMENT 2

The ALJ’s Decision

1.
The ALJ’s Additional Findings of Fact and Credibility Determinations

1. Mining
   began at the following date and the extended cut (40 foot) plan, including perimeter
   mining, was approved by the following District Manager on the following dates:

a.       MMU
002 - June 2008, Acting DM Mary Jo Bishop (March 1, 2010)

b.      MMU 003 -
December 2011, DM Robert Simms (August 17, 2012)

c.       MMU
004 - July 2013, DM Robert Simms (December 9, 2013)

d.      MMU 005 -
August 2017, DM Ronald Burns (September 27, 2017)

41 FMSHRC at 524 (Jt. Stip. 15).

2. On March
   1, 2010, MSHA approved the ventilation plan. Id . at 526 (Jt. Stip. 17).

3. In
   performing tests, the MSHA employees used a long probe that would attempt to
   collect an air sample and a second tube that would release smoke in an attempt
   to observe the movement of the smoke from approximately 44 feet away in order
   to determine whether, and in what direction, there was air movement in the
   perimeter cut. Id. at 534.

4. Under the
   approved ventilation plan, the methane from the bleeder was effectively diluted
   to less dangerous levels. Id . at 536.

5. In making
   its evaluation, MSHA did not consider the experiential opinions and advice from
   District 8’s own ventilation specialists and inspectors intimately familiar
   with the mine. Id . at 542.

6. District 8
   ventilation specialist, Mike Pritchard, did not testify. However, there was
   testimony that he regularly performed ventilation plan reviews by walking “the
   air courses, walks intakes, returns, bleeders, and he . . . evaluates the
   bleeders.” Id . The Judge cited testimony of a Knight Hawk witness that
   Pritchard said that he did not see anything wrong with the revoked system of
   ventilation for perimeter mining. Id . at 543.

7. The Judge
   found that the Secretary’s expert was evasive and frequently avoided answering
   questions directly. Therefore, he was unreliable. Id . at 531 n.10.

2. The ALJ’s Legal
Conclusions

From those factual
findings, the ALJ recites in extensive detail that in revoking the approved
plan MSHA relied on inappropriate factors, failed to consider important
factors, and offered explanations counter to the evidence before it. In doing
so, he went through the regulations cited by the Secretary and the reasons such
citations did not apply to and/or did not warrant revocation of the plan
approval. For purposes of responding to the present motion, we need not go
through the basis of the legal conclusions in anything approaching the detail
with which he covered the points in 12 pages of text.

Citing Burlington Northern & Santa
Fe Ry. Co. v. Surface Transp. Bd. , 403 F.3d 771, 777 (D.C. Cir. 2005) , the ALJ
found that MSHA failed to explain this conduct with a reasoned explanation and,
therefore, acted arbitrarily and capriciously by invoking such different
standards without explanation. 41 FMSHRC at 549-50.

Additionally, the ALJ
found convincing evidence in the record that MSHA was seeking to undertake
tests with a predetermined goal to eliminate perimeter mining. Id . at

550. As an example, the ALJ cited evidence that the MSHA expert admonished a
     line inspector on her method and recordings of smoke tests even though he was
     not present when the tests were run.

The ALJ further noted that MSHA’s District Director
persisted in stating he requires ventilation “throughout” the previously mined
area even though the regulation required ventilation “through” such area, and
MSHA conceded that ventilation under the approved plan, in fact, did move
through the area as the regulation requires. Id . at 550, 556.

The ALJ found that the record showed the District
Manager did not utilize or take into account the views of the District’s own
ventilation experts—that is, the MSHA ventilation personnel with the most
knowledge of perimeter mining within the District. The ALJ opined that while “none
of this evidence alone indicates a bias, taken together, the
evidence--including the credited testimony, the use of inapplicable language,
the use of the unreliable smoke tests, and the failure to consider the opinions
of District 8’s ventilation specialists intimately familiar with the
ventilation plan at the mine--demonstrates a pattern of bias against perimeter
mining that infected the decision-making process, leading to a predetermined,
and thus arbitrary and capricious, decision.” 41 FMSHRC at 551.

In terms of evidence
ignored by MSHA, the ALJ found that, despite “substantial evidence that
perimeter mining is a safe and likely safer form of mining with regard to
recurring hazards,” MSHA failed “to even consider, much less address, the
comparative safety advantages of perimeter mining under the previously approved
ventilation plan.” Id. at 522.

Consequently, the ALJ
found the evidence demonstrated that weekly examinations occurred and included
travel of at least one entry of each set of bleeder entries to conduct the
tests, thereby complying with the requirements of § 75.362(a)(2)(iii). Id .
at 556-57. He reviewed and recited upon Knight Hawk’s compliances with
ventilation regulations and found MSHA offered no explanation as to why Knight
Hawk’s weekly examinations were inadequate under the regulation. Id .

[1]
The Secretary filed an appeal of the Commission’s Decision with the United States
Court of Appeals for the District of Columbia Circuit on August 7, 2020. Thereafter,
the Commission committed, through conversation between counsel, that it would
issue this order early in the week of August 31. Earlier today, September 1,
the Secretary filed an Expedited Motion for Stay Pending Appeal with the court.
The Commission is forwarding this order to the court to indicate that the
Secretary has now exhausted his administrative remedies with respect to
the stay.

[2]
This technical citation and challenge procedure is described in Prairie State Generating Co. LLC v. Sec’y of Labor ,
792 F.3d 82, 87-88 (D.C. Cir. 2015). To abate the citation and continue
operating, Knight Hawk was required to submit a ventilation plan that MSHA
would approve, which it did. 41 FMSHRC at 527, 529.

[3]
The D. C. Circuit further explained that under the
substantial evidence standard of review, which is “highly deferential,”
the court “may not reject reasonable findings and conclusions, even if we would
have weighed the evidence differently.” Cumberland Coal Res., LP v. Fed.
Mine Safety & Health Review Comm’n , 717 F.3d 1020, 1028 (D.C. Cir. 2013)
(citation omitted). Thus, the question is “whether a theoretical ‘reasonable factfinder’
could have reached the conclusions actually reached by the Commission and the
ALJ.” Id. (citation
omitted); see also Biestek v. Berryhill , ___ U.S. ___, 139 S.Ct. 1148,
1154 (2019) .

[4]
The term “plausible harm” as used in the decision is simply a means of
expressing that if an operator submits a plan, a determination by MSHA finding
the plan unsuitable must be explained by a rational and reasonable assessment
of, and citation to, the facts of the plan’s operation. It is taken from
Black’s Law Dictionary, which defines “plausible” as meaning “[c]onceivably
true or successful; possibly correct or even likely . . . reasonably
convincing and seemingly truthful, though possibly mendacious.” Plausible ,
Black’s Law Dictionary (11th ed. 2019). It is a means of explaining the
arbitrary and capricious standard. If MSHA fails to reasonably identify ways in
which the plan fails to be suitable, a finding that the plan is unsuitable is
arbitrary. Obviously, the same standard applies with as much force when MSHA
seeks to revoke a plan previously approved as suitable.

[5]
It is thus incorrect that the Commission is requiring the Secretary to prove
unsuitability. Mot. for Stay at 3. Rather, the Secretary has failed at the task
of providing an argument that appears to be accurate based on the evidence. Put
another way, the Secretary’s action in this case lacks a rational basis. Mach
Mining, LLC , 34 FMSHRC 1784, 1790-91 (Aug. 2012) (internal citation
omitted); see also Prairie State , 792 F.3d at 92 (the Secretary must
show that the district manager “did not abuse his discretion . . . in making
his suitability determination, for instance by failing to examine relevant
facts and draw reasonable conclusions.”). The ALJ found no substantial
evidentiary foundation for the decision to revoke the operator’s plan here.

[6]
Section 103(i) of the Mine Act requires spot inspections for methane every 5
days, for mines that release more than one
million cubic feet of methane during a 24-hour period. 30 U.S.C. § 813(i). Furthermore,
such spot inspections are required every 10 or 15 days at mines that liberate
five hundred thousand, or two hundred thousand cubic feet, respectively, of
methane or other explosive gases during a 24-hour period. Id. The last
U.S. mine explosion occurred in 2010 in a mine releasing more than a million
cubic feet of methane in a 24 hour period. PEUM does not fall into any of the
categories for release of excessive methane and is not on a spot inspection
schedule.

[7] The perimeter cuts are areas into which no miner has ever
entered and into which entry is thereafter explicitly prohibited and barred. Tr.
54, 105. Obviously, after the cut is made, no mining activity occurs that could
create a spark. Even if one were to conjecture that loose roof material could
fall to the floor creating some type of spark, w e
take judicial notice that m ethane is lighter
than air. Thus, if any methane were to exist in a cut over time, it would rise
toward the roof, unaffected by anything happening on the floor. Nevertheless,
no evidence exists for such an incident. Likewise, t he mine had never experienced a spontaneous combustion.  

[8]
We specifically note that the issue of operating without an approved
ventilation plan, as a consequence, was never brought up to the Commission in
its petition for discretionary review below, in accordance with section
113(d)(2)(A)(ii) of the Mine Act. 30 U.S.C.

§ 823(d)(2)(A)(ii). Nevertheless,
we address that point for purposes of this Motion.

[9]
Given the Secretary’s stance, it is not clear how the Secretary would react if
he does not prevail before the D.C. Circuit, since both the Commission and the
Circuit Court act as appellate bodies with power to review decisions by MSHA. Under
MSHA’s apparently faulty reasoning, the operator would be caught in an endless
loop in which its rights have been abused without remedy, and an appellate body
has reversed MSHA in accord with Mine Act review principles without any effect
whatsoever. The Secretary’s position is tantamount to asserting that MSHA is
beyond the review power of the Commission or the courts. It also directly
contradicts the position the Secretary took before the court in defending the
Commission’s decision in Mach Mining , extolling the Commission’s review
role in plan disputes as “promot[ing] efficiency.” S. Resp. Br. at 32-33, Mach
Mining, LLC v. MSHA , 728 F.3d 643 (7th Cir. 2013) (No. 12-3598).

[10]
As noted before, this Decision effectively reinstated the operator’s plan, and
MSHA’s argument on appeal that the operator would be mining without an approved
plan—an argument not raised before the Commission—is meritless.

[11]
After the MSHA survey, one alleged spontaneous
combustion event occurred underground at the mine. The ALJ, however, found that
it could not be determined whether the event was spontaneous combustion. Furthermore,
perimeter mining was not involved in the event. Therefore, the ALJ found the
alleged event had little materiality for the case. 41 FMSHRC at 544.

[12]
Notably, Mach Mining and Prairie State involved review of MSHA’s
review of proffered new ventilation plans. This case, again,
involves revocation of an existing plan that MSHA had found suitable for
eight years. Moreover, in his motion, the Secretary misstates the Commission’s
decision and incorrectly argues that the Commission did not apply an arbitrary
and capricious standard. Apart from that misrepresentation, there can be no
argument, however specious, that the ALJ applied and repeatedly invoked an
arbitrary and capricious standard in reaching the decision under review.

[13]
Even were one to consider the Secretary’s charge that the Commission did not
apply the correct standard, it remains clear that the Judge applied the
arbitrary and capricious standard. Thus, the Judge’s decision, standing on its
own, would merit affirmation on any further review.

[14]
The Secretary misconstrues this element of the stay analysis. This factor is
intended to function as a counterpoint to the question of irreparable harm. While
the second factor asks whether the moving party will suffer irreparable
harm if the stay is not granted , the third factor asks whether other
parties will suffer adverse effects if the stay is granted, as a way
to weigh potentially competing interests and determine whether a stay would be
equitable. Virginia Petroleum , 259 F.2d at 925. However, rather than
addressing whether the operator will face adverse effects in the event of a
stay, the Secretary reiterates the alleged risk of an explosion or mine fire
and argues that denying the stay will have adverse effects on miners and the
community at large. Mot. for Stay at 5. Regardless, as discussed above, the
record does not support a finding of such a risk.

[15]
Roof bolting is generally eliminated during perimeter mining [the diagonal cuts
of coal at the edge of the section being mined] because after the entry is
mined and the continuous miner withdrawn, it is barricaded off. 41 FMSHRC at

524. This benefits operators and miners by more expeditious and safer retreat
     mining. Id . at 552.

[16]
Knight Hawk states in its briefing to the Commission, that it “has been
hesitant to simply implement its previous plan because of the threats of severe
and perhaps draconian

sanctions by the Secretary” and
therefore requests “that the Commission direct the Secretary to allow Knight
Hawk to immediately conduct perimeter mining in a fashion consistent with the
Commission’s ruling.” KH Resp. to Mot. at 9.

[17]
Operators wishing to “create an opportunity to challenge the district manager’s
plan-suitability decisions” have in the past “momentarily operated the mine
without [an] approved . . . ventilation plan[],” which triggers a citation for
violation of this regulation. Prairie State Generating Co., LLC v. Sec’y of
Labor , 792 F.3d 82, 85 (D.C. Cir. 2015); slip op. at 3 n.2. The operator in
this case has expressed an intention to extend the duration of its
non-compliance beyond “momentary operation” necessary to trigger review. See
supra note 1; KH Resp. to Mot. at 8. And my colleagues in the majority
seem to oblige, stating in their order denying the Secretary’s stay petition,
that “[w]hile the parties may ultimately decide to enter talks to discuss a new
plan approval process, the technical citation at issue is dismissed and
finished and the originally revoked plan has been reinstated.” Slip op. at 10.

[18]
If the final decision of the Commission vacating the citation is stayed, the
Secretary may continue during the pendency of the appeal to enforce compliance
with section 75.370(d) with a system of progressive sanctions, up to and
including the withdrawal of miners.

[19]
For the reasons, articulated in my dissent in Knight Hawk , slip op. at
24-28, the Judge’s decision is infected with numerous errors and could not
possibly be affirmed as written. Rather than wrestle with these errors, the
majority elected to consider the evidence de novo .

[20]
“Congress recognized the hazards of improper ventilation and established a role
for the government in addressing ventilation hazards. MSHA, with the
cooperation of labor and industry, has met with a large measure of success in
reducing the accidents, injuries and fatalities that have resulted from poor
ventilation practices . . . . To a great extent, the framework for this success
has been the implementation of effective ventilation standards.” Safety
Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9,764, 9,764
(Mar. 11, 1996).

[21]
The majority decries the absence of specific evidence of particular types of
potential imminent harm – e.g., accumulations of methane. But the increased
risk to miners that flows from an operator being allowed to mine without an
MSHA approved ventilation plan – one that ensures to the agency’s satisfaction
that air flow is continuously controlled – is best understood as analogous to the
increased risk to the teen driver whose parent stops policing their seatbelt
use. We may not be able to pinpoint the time, place or nature of the threat
posing a likelihood of harm that is increased by this decision, but there is obvious
increased risk.