Secretary of Labor v. Signal Peak Energy, LLC
Secretary of Labor v. Signal Peak Energy, LLC (FMSHRC WEST 2016-624-R): Ventilation-plan rejection stands on 2-2 split
Apply this precedent to your situation
This is citable Commission precedent from 2018, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Signal Peak proposed replacing its dual-entry tailgate return with a single-entry system to reduce oxygen entering the gob and lessen spontaneous-combustion, roof-control, and material-handling risks. MSHA rejected the plan because it believed the single-entry system could expose miners to noxious gob gases and low oxygen and would provide less effective early warning of combustion. Commissioners Mary Lu Jordan and Robert F. Cohen would affirm, finding that the district manager used the proper arbitrary-and-capricious review framework and reasonably balanced competing mine-specific hazards. Acting Chairman William I. Althen and Commissioner Michael G. Young would reverse, finding that MSHA compared plans without proving Signal Peak's proposal unsuitable and that the evidence favored the single-entry system on several risks. Because the Commission split 2-2, the ALJ's decision affirming the section 75.370(a)(1) citation remained in effect.
Decision snapshot
- Cited standard: 30 C.F.R. § 75.370(a)(1)
- Outcome: The ALJ decision upholding MSHA's rejection of the single-entry ventilation plan remained in effect by an evenly divided Commission.
- Key point: An evenly divided Commission leaves the decision below standing but creates no majority rationale on how ventilation-plan suitability should be reviewed.
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) :
:
v.
: Docket No. WEST
2016-624-R
:
SIGNAL
PEAK ENERGY, LLC :
BEFORE:
Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY
THE COMMISSION: [1]
This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act”). At issue is
whether the Administrative Law Judge properly upheld the rejection by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) of a ventilation control plan proposed by Signal
Peak Energy, LLC (“Signal Peak”) .
In July 2016, MSHA issued a technical citation to
Signal Peak alleging a violation of 30 C.F.R. § 75.370(a)(1). [2] MSHA
issued the citation after Signal Peak and MSHA reached an impasse while
negotiating provisions of the operator’s ventilation plan. The dispute arises
from MSHA’s denial of the operator’s request for approval to change its ventilation
plan from a dual-entry tailgate return system to a single-entry tailgate return
system.
The operator had argued that changing its
ventilation plan would decrease the amount of oxygen in the gob, or mined-out
area, thereby lessening the chance of spontaneous combustion, and would reduce
the risk of material handling and roof control incidents. MSHA in turn expressed
concerns that the operator’s proposed plan could cause noxious gob gases to
enter an area where miners work, reduce available oxygen in that area, and
result in less effective monitoring for a spontaneous combustion event.
The Judge affirmed MSHA’s technical citation. In
doing so, she held that MSHA’s rejection of Signal Peak’s proposed plan was not
arbitrary and capricious. 39 FMSHRC 638, 653 (Mar. 2017) (ALJ). Signal
Peak filed a petition seeking discretionary review of the Judge’s decision,
which we granted.
Two Commission members vote to affirm the Judge’s
decision and two Commissioners vote to reverse the Judge’s decision. As a
result, the Judge’s decision will stand as if affirmed. Pennsylvania
Elec. Co. , 12 FMSHRC 1562 (Aug. 1990), aff’d on other grounds , 969
F.2d 1501 (3d Cir. 1992).
I.
Factual and Procedural Background
A. Factual
Background
1. The Mine’s
Operations
Signal Peak operates
the Bull Mountain Mine, a large underground coal mine in Montana. The
operator primarily mines its coal using the longwall method.
During longwall
mining , the operator drives two sets of lengthy
parallel entries on each side of a block of coal. At the end of the
entries, the operator creates a crosscut perpendicularly (at right angles) to
connect the parallel entries. The coal along the perpendicular cut becomes the
longwall face.
A shearer moving back and forth across the face extracts
the coal from the longwall. In turn, a conveyor system in an entry transports
the coal from the face. The set of entries containing the conveyor system
is the headgate; the parallel set of entries at the other side of the longwall
panel is the tailgate. In developing the panel, there are three
headgate entries and three tailgate entries. Each panel of coal is
approximately 22,000 feet long and 1,250 feet wide.
Hydraulic roof jacks support
the roof in a canopy above the longwall and shield miners operating machinery along
the face from collapsing rock. As the face retreats, the operator moves the
roof support shields outby towards the mine’s entrance to allow the roof to
collapse into a compressed area known as the gob. Gases may build up in the
gob area. To ventilate the longwall, air flows through the headgate entries,
then along the face, and exits the area through the tailgate entries.
Although the Signal Peak mine does not have a high
concentration of methane, it is prone to spontaneous combustion, which is the “heating
and slow combustion of coal . . . initiated by the absorption of oxygen.” Stip.
4; Am. Geological Inst., Dictionary of Mining, Mineral and Related Terms ,
529 (2d ed. 1997) (“ DMMRT ”) . [3]
Due to this danger and because it had been experiencing elevated levels of
carbon monoxide (“CO”) in the gob, Signal Peak changed from a “bleeder entry” [4] system to
a “bleederless” system in January 2010.
A bleederless system reduces the potential
for spontaneous combustion by limiting the oxygen that is available
in the longwall gob. Id .
The gob area must be isolated and sealed from the active mining area. Accordingly,
a bleederless ventilation system requires the
progressive installation of seals
as the panel is mined.
In December 2011, Signal Peak experienced a major event
of spontaneous combustion, which resulted in the loss of approximately 22
production days. The event was caused by oxygen pulled in by the mine’s
exhausting ventilation system through subsidence cracks on the surface into the
rider seam [5]
above the main seam being mined.
As a result, Signal Peak, with the approval of MSHA,
instituted additional measures on subsequent longwall panels in order to
decrease the risk of spontaneous combustion. These measures included lowering
the gob’s oxygen levels by injecting nitrogen into the gob and monitoring the
oxygen levels on an ongoing basis. Further, in January 2013, the operator
replaced the exhausting ventilation system with a blowing ventilation system in
order to pressurize the gob and decrease the danger of pulling air into the gob
through cracks in the mine surface.
In January 2015, Signal Peak submitted a revised ventilation plan that proposed
an additional change, which is
the subject of this litigation. It proposed changing from a system in which
air flows out of both tailgate entries (“dual entry system”) to a system in
which the air exiting the longwall would flow only through a single entry (“single
entry system”). See attached diagrams, Sec. Ex. 24 (the dual entry
system) and Sec. Ex. 26 (the single entry system).
Under the dual entry system, the operator leaves the
tailgate entries open to the first crosscut inby the panel. As ventilating air
exits the longwall, its flow is divided with some going down entry 1 (entry
closest to the panel) while a separate quantity of air is directed back to the
cross cut and then into the other tailgate entry (entry 2) for exit (sometimes
called the “back-around return”). Under the single entry system, the
tailgate entries are mined as the longwall develops, and air leaving the
longwall exits only through the tailgate entry 1. Like the current plan,
the proposed single entry plan would be a bleederless, blowing air system.
2. The
Plan Negotiation Process
On January 12, 2015, the operator submitted the proposed
plan to Russell Riley, District Manager for MSHA Coal Mine Safety and Health District
9. On April 3, 2015, Riley rejected the operator’s plan and requested
additional information about seals and monitoring. In Riley’s view, the
operator failed to show that its plan would be “as effective [as the current
dual-entry plan] at minimizing risks to miners such as possible low [oxygen]
and [methane] buildup near the tailgate entries.” Sec. Ex. 4.
On April 23, 2015, the operator submitted another proposed
single-entry plan, and met with MSHA District 9 personnel approximately two
weeks later to discuss it. On May 29, 2015, Riley again rejected the
operator’s plan. According to Riley, the proposed plan failed to ensure
that contaminated air from the gob would not “enter the longwall face exposing
miners to low [oxygen] levels at the tailgate and to gob gasses [sic] moving outby
around the last shield.” Sec. Ex. 7. Riley also stated that an
increased likelihood of carbon monoxide overexposures and spontaneous
combustion would occur, as well as an increase in carbon dioxide.
On July 9, 2015,
Signal Peak and MSHA District 9 personnel met again to discuss the operator’s
proposed single-entry plan. Rather than approve the plan, Riley requested
assistance from the MSHA Director of Technical Support at the Ventilation
Division of the Pittsburgh Safety and Health Technology Center.
On January 13,
2016, MSHA Technical Support issued a report prepared by Dennis Beiter, Senior
Mining Engineer in the Ventilation Division (the Beiter report). [6] The
report recommended against approval stating, “the dual tailgate return system .
. . results in better protection for miners and enables earlier detection of
spontaneous combustion.” Sec. Ex. 10 (quoting Sec. Ex. 10a at 2).
Riley then
rejected the operator’s proposed plan for the third time, relying on Beiter’s
report. The findings of better protection against buildups of toxic gases,
lowered oxygen, and better monitoring were the basis for disapproving the
Signal Peak plan.
In
March 2016, MSHA District 9 requested that MSHA Technical Support perform two fan
stoppage tests using the mine’s existing dual-entry tailgate return and a
simulated single-entry tailgate return. On April 25-28, 2016, the fan
stoppage tests were performed by Thomas Morley, a Mining Engineer in the
Ventilation Division, and others. [7]
On May 3, 2016, MSHA Technical Support issued a report prepared by Morley. On
May 11, 2016, Riley sent a letter to the operator referencing Morley’s report,
which stated that unacceptably low levels of oxygen occurred during the fan
stoppage tests for both plans. Although Morley did not suggest that
the operator’s proposed plan be denied, he recommended that the operator add
language to its plan to address fan stoppages, regardless of whether it
ultimately used a dual-entry or a single-entry plan. Sec. Ex. 15a at 5-6;
Sec. Ex. 15.
Based on the results of the fan stoppage tests, on
May 11, 2016, MSHA notified Signal Peak that it needed to make immediate
changes to its existing ventilation plan to protect miners in the event of a
fan stoppage. On May 16 and 18, 2016, the operator submitted another
proposed single-entry tailgate return ventilation plan.
On June 15, 2016, for the fourth time, Riley rejected
Signal Peak’s proposed plan. About a week later, the operator requested the
issuance of a technical citation. [8]
MSHA subsequently issued the citation that is the subject of this litigation. [9]
B. The
Judge’s Decision
The Judge affirmed the citation. 39 FMSHRC at
653. As a threshold matter of law, she rejected Signal Peak’s argument that
the Secretary is required to prove that the operator’s ventilation plan is
“unsuitable” for the mine, holding that operators are “not entitled to . .
. de novo hearing[s] on the merits of . . . plan[s].” Id . at 651.
Instead, she held that a district manager’s rejection of a proposed plan must
be “arbitrary, capricious, or an abuse of discretion” in order to be vacated.
Id ., citing Prairie State Generating Co ., 35 FMSHRC 1985,
1989 (July 2013), aff’d , Prairie State Generating Co. LLC v.
Secretary of Labor , 792 F.3d 82 (D.C. Cir. 2015 ) ; Mach Min., LLC ,
34 FMSHRC 1784, 1790 (Aug. 2012), aff’d , Mach Min., LLC v. Secretary
of Labor, Mine Safety and Health Admin ., 728 F.3d 643 (7th Cir. 2013)).
Applying the “arbitrary and capricious” standard of review, the Judge held that
Riley’s decision “was based on careful consideration of all of the relevant
factors, and that he did not abuse his discretion in requiring the mine to use
a dual-entry plan.” 39 FMSHRC at 653.
The Judge found that Riley reasonably explained his
position that: (1) the dual-entry system was more effective at removing noxious
gases from the tailgate area where miners work, (2) the dual-entry system enabled
better monitoring of conditions in the gob and earlier detection of noxious
gases before the gases reached the working face, (3) the dual-entry system did
not present significant material handling hazards, (4) there was a suitably low
risk of spontaneous combustion under the dual entry system, and (5) fan
stoppage tests did not strongly favor either plan. The Judge found that the
District Manager based his decision on a careful consideration of relevant
factors and did not abuse his discretion.
Accordingly, the Judge affirmed the citation.
II.
Separate Opinions of the
Commissioners
Commissioners
Jordan and Cohen, voting to affirm the Judge:
We vote to affirm the Judge’s conclusion that
District Manager Riley’s decision to reject Signal Peak’s proposed single-entry
ventilation plan was not arbitrary and capricious. The record reflects that
District Manager Riley carefully weighed several criteria before deciding to
reject the operator’s proposed plan. For instance, he determined that although
the single-entry plan would offer the benefit of potentially diminishing
exposure to certain hazards, such as spontaneous combustion and roof control
hazards, any benefit would come at the expense of protection from other
potential hazards, such as an increased likelihood that miners would be exposed
to contaminated air.
The District
Manager did not dismiss the operator’s concerns regarding spontaneous
combustion. Rather, he determined that the proposed additional protections
against the risk of spontaneous combustion would be marginal because the mine
had already taken adequate steps to control spontaneous combustion by injecting
nitrogen into the gob and installing a blowing system of ventilation. District
Manager Riley reasonably focused on the hazard of oxygen-deficient air exiting
the gob into the areas where miners work. In sum, Riley rejected the
single-entry plan, concluding that the plan “will not ensure that [contaminated]
air” from the gob would not “enter the longwall face exposing miners to low
[oxygen] levels at the tailgate and to gob gasses [sic] moving outby around the
last shield.” Sec. Ex. 7.
The Judge
concluded that Riley reasonably evaluated the relevant factors and specific
conditions of the mine prior to his determinations about the proposed plan.
The Commission is not in a position to substitute its view for the expertise of
the District Manager on this highly technical issue. Instead, the law
requires us to determine whether the Judge’s findings that informed her
decision, on whether the District Manager’s decision was arbitrary and
capricious, was supported by substantial evidence. We conclude that
substantial evidence supports the Judge’s findings. [10]
A. The
“Arbitrary and Capricious Standard” of Review Applied by the Judge was
Appropriate and Consistent with Legal Precedent.
Signal Peak
argues that the Judge erred in applying an “arbitrary and capricious” standard
of review, and asks the Commission to reconsider its decisions in Prairie
State Generating Co. , 35 FMSHRC 1985, 1989 (Jul. 2013) and Mach
Mining, LLC , 34 FMSHRC 1784, 1790 (Aug. 2012). Signal Peak urges
the Commission to adopt an approach under which, upon appeal of a ventilation
plan dispute, the Judge would hold a de novo hearing at which the
Secretary is required to prove that the operator’s plan is unsuitable, and if
so, that MSHA’s plan is suitable. SP Br. at 13-19; Oral Arg. Tr. 12. We
decline to do so.
The
Commission has recognized the Secretary’s discretion in the ventilation plan
process, relying upon the Act’s legislative history. See , e . g .,
Peabody Coal Co ., 18 FMSHRC 686, 690-692 (May 1996); C.W. Mining Co .,
18 FMSHRC 1740, 1746-47 (Oct. 1996). The Senate Committee Report on the Act
stated that “while the operator proposes a plan and is entitled, as are the
miners and representatives of miners to further consultation with the Secretary
over revisions, the Secretary must independently exercise his judgment with
respect to the content of such plans in connection with his final approval of
the plan.” S. Rep. No. 95-181, at 25 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal
Mine Safety and Health Act of 1977 , at 613 (1978) (“ Legis. Hist. ”).
The Secretary’s ultimate responsibility to approve
ventilation plans was expressly affirmed by the D.C. Circuit and Seventh
Circuit respectively. See Prairie State Generating Co ., supra ,
aff’d , 792 F.3d 82, 91-92 (D.C. Cir. 2015); Mach Mining , LLC ,
supra , aff’d , 728 F.3d 643, 657-58 (7th Cir. 2013).
Prairie State and Mach
Mining require a Judge to consider whether a district manager’s decision to
deny the operator’s proposed ventilation plan was made arbitrarily,
capriciously, or otherwise amounted to an abuse of discretion. Mach
Mining, 728 F.3d at 658; Prairie State Generating Co. , 792
F.3d at 93. Under this standard, a district manager’s action may be
considered arbitrary and capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency
expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co ., 463 U.S. 29, 43 (1983). We continue to apply this
standard here. [11]
We reaffirm the application
of the “arbitrary and capricious” standard of review in ventilation plan
disputes as best effectuating the independent responsibilities delegated to
MSHA and to the Commission by the Mine Act. As the court recognized in Mach
Mining , the process delegated to the Secretary of approving mine-specific
ventilation plans involves a congressional mandate that his representatives
exercise independent judgment. 728 F.3d at 657. Therefore, the
ventilation plan approval process is more akin to the formulation of a
safety standard rather than the enforcement of that standard and, thus,
a de novo hearing (prototypically granted when the Secretary seeks to
enforce a safety standard against an operator) regarding the proposed plan
would be inconsistent with Congress’s delegation of responsibilities. See
id ; see also Prairie State , 792 F.3d at 91-92. Accordingly, the
court in Prairie State held that a “deferential [standard of] review
appropriately respects the Secretary’s policymaking prerogative and ensures
that his determinations are reasonable and adequately supported by the
evidence.” 792 F.3d at 92.
For these reasons, we deny
Signal Peak’s request to abrogate Prairie State and Mach Mining . [12]
B. Substantial Evidence
Supports the Judge’s Findings.
1. Substantial
Evidence Supports the Judge’s Finding that the District Manager Reasonably
Concluded that the Proposed Single-Entry Plan Would Create an Unacceptable Risk
of Noxious Gob Gases and Low Oxygen Entering Areas Where Miners Work.
The operator’s proposed
single-entry plan would change the manner in which the air travels after
sweeping the working face. Specifically, the proposed plan would omit the
“T split” and “back around” return that are components of the dual-entry plan;
instead the air would leave the mine in a single entry, the same entry in which
miners work. 39 FMSHRC at 645.
The Commission
reviews the Judge’s factual findings under the substantial evidence standard of
review. See 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “such relevant evidence as reasonable minds might accept as
adequate to support [the Judge’s] conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Landes Constr. Co. v. Royal
Bank of Canada , 833 F.2d 1365, 1371 (9th Cir. 1987) (citation omitted); see
also Rochester & Pittsburgh Coal Co ., 11 FMSHRC 2159, 2163 (Nov.
1989). In reviewing the whole record, an appellate tribunal must consider
anything in the record that “fairly detracts” from the weight of the evidence
that supports a challenged finding. Midwest Material Co ., 19 FMSHRC
30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB , 340 U.S.
474, 488 (1951)).
The Judge credited
the testimony of both District Manager Riley and the Secretary’s expert witness
Beiter, who explained that because the blowing ventilation system puts pressure
on the gob, noxious gases or low oxygen may be released into areas where miners
work, if the proposed single-entry system was used. 39 FMSHRC at 647;
RH Tr. 35-36, 117-18. The mined-out gob contains locations where noxious gases
can accumulate. Riley and Beiter were concerned about three different
events which could cause the release of noxious gases or low oxygen to occur:
(1) a fan stoppage; (2) the air pressure in the tailgate entries and face
becoming lower than the gob’s air pressure, which would create a path of least
resistance for the gases to travel out from the gob to the working areas, or
(3) a delayed rock fall that could push gob air out on the face. RH Tr.
36-37, 111-12.
Riley testified
that under the current plan, in these scenarios, the “back-around return” in
the dual-entry system acts as a “pressure relief valve” to help prevent the gob
air from coming out onto the face. RH Tr. 35. Specifically, the air
that flows inby through the gob at the tailgate from the “T-Split” pushes and
directs the noxious gob gases up crosscut 49 and then outby in tailgate entry
number 2 (the “back return” entry), which is sealed off from entry number 1.
RH Tr. 35, 115-16; see also Sec. Ex. 24.
By contrast, the
operator’s proposed single-entry system would eliminate tailgate entry number
2, which means that any noxious gas accumulations would exit the gob and flow
directly into tailgate entry number 1, where miners work. Sec. Ex. 26; RH
Tr. 117-18, 121-22; see also Sec. Ex. 10(a) at 3 (Beiter Report)
(concluding that the “potential for miners exiting the tailgate side of the
longwall face to be exposed to more elevated contaminant levels is greater in a
[single-entry] system than in a dual tailgate return system incorporating a
back return.”).
Signal Peak
claims that the results of a fan stoppage test [13]
contradict MSHA’s concerns. It asserts that the oxygen levels for the
single-entry test fell to a “slightly lesser degree” than the dual-entry test,
and that therefore the single-entry system was just as safe, if not slightly
safer, than the dual-entry system. Accordingly, it contends that Riley’s
rejection of the single-entry plan was arbitrary. [14]
We disagree. Riley considered the results of the
fan stoppage test and he determined that the results did not favor one plan
over the other. This determination was supported by substantial evidence
and was within the District Manager’s discretion. Furthermore, there is
evidence that the tests were not performed in accordance with the agreed upon
protocols creating doubt about the reliability of the results. 39 FMSHRC at
649.
The operator
also suggests that the back-up fan at the mine rendered the District Manager’s
decision arbitrary and capricious. However, MSHA had provided an
opportunity for Signal Peak to supply necessary information about the back-up
fan before it made its decision, and the operator failed to do so. [15] We
decline to consider this new information, which was never communicated to MSHA.
See , e . g ., Chamber of Commerce v. SEC , 443 F.3d 890,
904 (D.C. Cir. 2006) (holding that interested parties may not “withhold
relevant data [in rulemaking proceedings] and blindside the agency on appeal”).
Even assuming that we were to find that the Judge erred in overlooking the
evidence of the back-up fan, this constitutes harmless error because there is still
evidence of the other types of events that could have caused the release of
noxious gases or low oxygen into the areas where miners work, e.g., the air
pressure in the tailgate entries and face could become lower than the gob’s air
pressure, which would create a path of least resistance for the gases to travel
from the gob into the working areas or a delayed rock fall could occur, which
would push gob air out on the face. RH Tr. 36-37, 111-12.
As such, we find
that substantial evidence supports the Judge’s finding that the District Manager
reasonably concluded that the proposed plan would create an unacceptable risk
of noxious gob gases and low oxygen entering areas where miners work.
2. Substantial
Evidence Supports the Judge’s Finding that the Risk of Spontaneous Combustion
Under the Current Ventilation Plan was Low.
Signal Peak argues
that the Judge and the District Manager overlooked material evidence that the proposed
plan would significantly decrease the risk of spontaneous combustion. The
operator relies on the fact that the current plan directs a certain amount of
air inby the number 1 tailgate entry for a distance of one crosscut (approximately
225-285 feet) along the inner edge of the gob. Id . at 34; Tr. 128;
SP Ex. EEE; Sec. Ex. 24. By contrast, the operator argues that the proposed
single-entry plan would introduce substantially less oxygen into the gob, which
would better prevent spontaneous combustion. SP Br. at 25; RH Tr. 78-79;
Tr. 50-51, 128.
The operator
also asserts that the proposed plan would introduce less oxygen into the gob on
the headgate side. Specifically, under the current plan, the crosscut seals
cannot be installed until after the longwall passes each crosscut. The
operator emphasizes that the seals are currently built between headgate entries
2 and 3, and that the seals would obstruct access to the primary escapeway in
entry 2 if built prior to the gob advancing. See Sec. Ex. 24. This
means that, until the seal is constructed, there is an opening into the gob through
which air could enter. Id . Under the proposed plan, the seals
would be between entries 1 and 2 and so could be built before the longwall
advances without obstructing access to the escapeway. SP Br. 25-26; see
also Sec. Ex. 26. This would prevent any temporary opening into the gob
through which air could enter.
Despite these
arguments, we believe that the Judge did not overlook any material evidence
that the proposed plan would significantly decrease the risk of spontaneous
combustion. The Judge found that the “mine’s current ventilation plan [requiring
a blowing system] has been in place since January 2013 and has successfully limited
spontaneous combustion since that time.” 39 FMSHRC at 644-45. The Judge
further concluded that Riley reasonably determined that the risk of spontaneous
combustion was suitably low under the current plan, and that it was not
necessary to decrease the amount of air entering the gob beyond the current
amount. Id. at 652. These findings are supported by substantial
evidence.
Riley testified
that he had considered Signal Peak’s concerns that the current plan imposes a
significant risk of spontaneous combustion. RH Tr. 41-42. Specifically,
Riley testified that he had taken into account the fact that the mine has a
lengthy incubation period (the time for the coal in the gob to combust when
exposed to oxygen). [16]
RH Tr. 41-43. Based on these criteria, Riley had concluded that it was not
necessary to decrease the amount of air entering the gob below the current
amount.
Furthermore,
Riley testified that he had considered the fact that Signal Peak “inject[s]
nitrogen into the gob to help prevent spontaneous combustion” and explained
that, since December 2011, there have been no spontaneous combustion events at
the mine, which indicated to him that the present system is effective. RH Tr.
43, 105-07. Signal Peak’s Vice President of Engineering Farinelli himself
agreed that, since December 2011, the operator has been successfully mining
under the dual-entry system, and controlling spontaneous combustion. Tr. 176.
Therefore, the record supports Riley’s determinations, which the Judge
recognized, that the risk of spontaneous combustion is low under the current
plan, and that considerations of preventing spontaneous combustion should not
be a decisive factor here in determining the suitability of the proposed plan.
Moreover, Riley
testified that he had taken into account that the mine injects nitrogen 10-15
crosscuts (2200 to 3300 feet) behind the face. RH Tr. 79-80; Tr. 31. This
indicated to Riley that there is no imminent threat of spontaneous combustion
caused by the current practice of introducing air a mere 225-285 feet into the
gob on the tailgate side because, if the risk for spontaneous combustion was so
great, the mine would be injecting nitrogen much closer to the longwall face.
RH Tr. 43; see Sec. Ex. 24.
Signal Peak claims that nitrogen injected closer to
the face would be diluted by the air on the face and immediately behind the
longwall shields, and therefore would be ineffective in inerting the gob. Tr.
36-37, 187. However, Beiter testified that only a portion of the
nitrogen would be diluted and carried away by the face airflow, and that, in
his view, the operator would have simply needed to inject a higher quantity of
nitrogen closer to the face. Tr. 37-38.
Likewise, Signal
Peak’s claim that the current plan allows for more oxygen to be introduced into
the gob on the headgate side conflicts with other evidence in the record. Beiter
rejected this claim in his report. Specifically, Beiter stated that “a curtain
was typically installed in the crosscut inby the longwall face where the
headgate seal would later be constructed. That curtain was described as
‘not tight.’” Sec. Ex. 10(a) at 6. In Beiter’s view, “[c]onstruction of
a more substantial control such as a permanent stopping or framed check curtain
(temporary stopping) instead of a curtain described as ‘not tight’ would reduce
the quantity of intake air leaking into the worked-out area.” Id .
This would prevent air from flowing through any opening into the gob on the
headgate side before the seal is constructed. Tr. 10. As stated, the
Judge permissibly credited Beiter’s testimony.
In summary, the
record does not reflect that the District Manager failed to give adequate
consideration to the evidence relating to the hazard of spontaneous combustion.
3. Substantial
Evidence Supports the Judge’s Finding that the Current Plan Allows for Earlier
Detection of Spontaneous Combustion.
Even if
spontaneous combustion did present a problem here, the Judge recognized that
Riley determined that the dual-entry system enables better monitoring of
conditions in the gob. 39 FMSHRC at 648. Indeed, Riley testified that
an air monitoring sensor in the dual-entry system “gives the true air
concentrations and the gas that they detect from the back[-around] return” and
“give[s] earlier detection . . . from the gob at this sensor versus not having
the back[-around] return and having the sensor hung right here on the last
shield only about two foot from the working face and the gob gases would be out
into the working area before they were detected by the detection system.” RH
Tr. 40-41.
Beiter testified
that detecting spontaneous combustion early would be more difficult in a
single-entry system because of the increased dilution that would occur, which
could mask the existence of the carbon monoxide. Beiter further explained
that, in the dual-entry system, “the contaminants are elevated in that back
return airflow. They’re less diluted . . . from a detection standpoint, the
less dilution you have, the more likely you are to find an indication of the
beginning of a heating, of a spontaneous combustion event as opposed to a more
diluted atmosphere,” providing earlier detection of spontaneous combustion.
Tr. 18-22, 43; see also Sec. Ex. 10(a) at 3. The Judge
expressly credited Beiter’s testimony, finding that he had “significant
experience with spontaneous combustion.” 39 FMSHRC at 650.
Signal Peak argues
that the dual-entry system does not provide a reliable method of early detection
of spontaneous combustion. The operator points to testimony by Vice
President of Engineering Farinelli stating that the monitoring advantage of the
back-around system described by Beiter is minimal because the atmospheric
monitoring sensor in the back return only measures the percentage of CO
in the tailgate entry – which is relative to how much oxygen is present in the
air. Tr. 146-50. According to Farinelli, if only a relatively low
amount of oxygen exists, the concentration of CO showing up on the sensor is
higher. By contrast, higher levels of oxygen will dilute the concentration
of CO, which paints a misleading picture of how much CO is actually present in
the gob.
The Judge chose
to rely on the testimony of Riley and Beiter. We find that substantial
evidence, i.e., evidence capable of persuading a reasonable mind, exists to
support the Judge’s finding that the dual entry system provides a better method
of early detection of spontaneous combustion.
4. Substantial
Evidence Supports the Judge’s Finding that the Single-Entry Plan Would Only
Minimally Reduce Material Handling and Roof Control Hazards.
Although Signal
Peak’s proposed plan would obviously reduce material handling and roof control
hazards by eliminating the need to maintain tailgate entry number 2, the
Secretary has demonstrated that the resulting reduction in hazards would be
minimal. According to Riley, the operator has done a “pretty good job” in mitigating
the hazards that relate to roof control and material handling. RH Tr.
43-45, 81-83. According to Beiter’s report, discussions with the operator’s
personnel did not indicate a history of accidents involving material handling
during the installation of standing support in the No. 2 headgate entry of
previous longwall panels. Sec. Ex. 10(a) at 6. Thus, Beiter reasonably
concluded that the operator was doing a good job of installing support in a
safe manner. Tr. 14-15, 49-50.
Additionally, Beiter
testified that he “was not made aware” and “[n]o records were provided” that
there were any issues regarding safe access to construct seals in the
dual-entry system. Tr. 12-13. Indeed, as Farinelli himself testified, “we
feel we are doing an excellent job at managing our roof control.” Tr. 176. As a result, substantial
evidence supports the Judge’s finding that the reduction in material handling
and roof control hazards would be minimal under the single-entry system.
Conclusion
Accordingly, we
would hold that under the appropriate standard of review, the Judge’s decision
affirming the District Manager’s rejection of the plan is supported by
substantial evidence.
/s/
Mary Lu Jordan
Mary
Lu Jordan, Commissioner
/s/
Robert F. Cohen, Jr.
Robert
F. Cohen, Jr., Commissioner
Acting Chairman Althen and
Commissioner Young, in favor of reversing:
We would find
that the Judge applied the wrong legal standard and that substantial evidence [17] does not
support a finding that the operator’s ventilation plan was not suitable — that
is, was not appropriate to meet the requirement to provide safe and healthful
ventilation at the specific mine. Accordingly, we would reverse the
decision of the Administrative Law Judge and approve the operator’s plan.
Legal
Principles
The focal point
of this case is the requirement of section 303(o) of the Mine Act that an
operator must prepare and MSHA must approve a ventilation plan “ suitable to the conditions and the mining system of the
coal mine . . . .” 30 U.S.C. § 863(o). [18] In turn, the issue narrows
further to the meaning of the term “suitable” and whether substantial evidence
supports the Judge’s determination that the plan prepared by the operator was
not suitable.
The
Mine Act does not define “suitable.” Courts of appeal and the Commission
have held that i n
the absence of a statutory definition or a technical usage of the term
“suitable,” we apply the ordinary or dictionary meaning of the word. Canyon
Fuel Co., LLC v. Sec’y of Labor , 894 F.3d 1279, 1288 (10th Cir. 2018); Peabody
Coal Co. , 18 FMSHRC 686, 690 (May 1996). Consequently, for our
purposes, “suitable” means “adapted to a use or purpose,” “having the necessary
qualifications: meeting requirements” and “fitted for, adapted or appropriate
to a person’s . . . needs.” Canyon Fuel , 894 F.3d at 1288.
The purpose of a
ventilation plan is to provide safe and healthful atmospheric conditions. MSHA
has stated correctly “[a] sound ventilation plan is essential to maintaining
adequate ventilation and respirable dust control in the mine.” MSHA
Handbook Series, Handbook Number PH13-V-2, Mine Ventilation Plan Approval
Procedures (Apr. 2013). MSHA further correctly identified the test for
acceptance stating, “[p]lans adopted by the mine operator and approved by the
district manager define minimum safety and health requirements for the mine.”
Id. Therefore, a suitable ventilation plan — a plan that MSHA must
approve — is one that achieves safety and health requirements for adequate
ventilation and respirable dust control at the specific mine. [19]
The obligation
that a plan must be appropriate for its purpose (suitable) is a consistent and
repeated theme in the Mine Act and underground coal mine regulations. Title
III of the Mine Act contains 14 specific requirements for “suitable” equipment
or a “suitable” plan. The regulations of underground coal mines at 30
C.F.R. Subchapter O, Part 75 contain more than 30 “suitability” requirements.
When an operator presents a ventilation
plan to MSHA for approval, the only question for MSHA is whether the plan provides
adequate safety and health protections for the specific mine. MSHA has
promulgated extensive mandatory standards for ventilation. 30 C.F.R.
§§ 75.300-75.389. Those regulations establish mandatory standards that a
ventilation plan must meet in order to be suitable. Given the purpose and
effect of those standards, a ventilation plan that is adequate for operation of
the mine in compliance with those regulations achieves the conditions for
maintaining adequate ventilation and respirable dust control in the specific mine.
Such a plan is therefore suitable.
This case turns
upon the issue of substantial evidence — namely, whether substantial evidence
supports the Judge’s decision. Nonetheless, it is useful to review briefly
the development of burden of proof issues in plan approval cases so that we may
place the substantial evidence issue in the proper context.
Unquestionably,
the Secretary bears the burden of proof in Commission suitability proceedings.
However, the Commission has taken shifting positions on the standard of proof.
Prior to 2012, the Commission consistently held that the Secretary bore the
burden of establishing by a preponderance of the evidence that the operator’s
plan was unsuitable for the mine in question. See, e.g. , Peabody
Coal Co. , 18 FMSHRC 686, 690 (May 1996) (“ Peabody II ”); Peabody
Coal Co. , 15 FMSHRC 381, 388 (Mar. 1993) (“ Peabody I ”) (“[t]he
Secretary bears the burden of proving that the plan provision at issue was
suitable to the mines in question”); C.W. Mining Co. , 18 FMSHRC 1740,
1748-53 (Oct. 1996).
In a 3–2 decision issued in 2012, a
Commission majority held that the Secretary’s burden consisted of showing that
MSHA’s disapproval of the suitability of a plan was not an abuse of his
discretion and was not arbitrary and capricious. Mach Mining, LLC ,
34 FMSHRC 1784, 1790 (Aug. 2012), aff’d , 728 F.3d 643, 658 (7th Cir. 2013).
That standard requires that the Secretary show MSHA “examine[d] the relevant
data and articulate[d] a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.”’ Id. at
1790-91, citing Twentymile Coal Co. , 30 FMSHRC 736, 754, 773-74
(Aug. 2008). The decision did not remove the burden of proof from the
Secretary, but adjusted the standard of proof to an abuse of discretion test.
The abuse of discretion standard of proof does not affect the application of
the substantial evidence test as applied to a Judge’s findings of fact.
T he Commission
reaffirmed Mach in Prairie State Generating Co., LLC , 35 FMSHRC 1985,
1989 (July 2013). Subsequently, the United States Court of Appeals for the
District of Columbia Circuit affirmed the Commission’s decision. Prairie
State Generating Co., LLC v. Sec’y of Labor , 792 F.3d 82, 92 (D.C. Cir.
2015). [20]
The circuit court did not find the Mine Act mandated use of the abuse of
discretion standard, but instead accepted the Commission’s deferential use of
that standard stating “[w]e therefore hold that the standard of review applied
by the Commission was at least a permissible one.” Id. at 93. Again,
the circuit court’s decision left in place the substantial evidence requirement
that requires MSHA to support a denial of a plan through presentation of facts
pertaining to the proffered plan that sustain a reasonable conclusion that the
plan did not provide for the safety and health requirements at the specific
mine. [21]
Most recently, in a case particularly
relevant here, the United States Court of Appeals for the Tenth Circuit
reviewed a Commission decision regarding whether an escapeway met the
suitability requirements of 30 C.F.R. § 75.380(d)(5). [22] The
Commission, by a 2–2 vote, left standing an Administrative Law Judge’s finding
that the escapeway used by the operator was not the m ost direct, safe and practical route to the nearest mine opening
“suitable” for the safe evacuation of miners. Canyon Fuel Co.,
LLC , 39 FMSHRC 1578, 1578-79 (Aug. 2017), aff’d in part and vacated in
part , 894 F.3d 1279 (10th Cir. 2018).
On appeal, t he
circuit court addressed the Secretary’s burden of establishing a violation of
the escapeway standard:
To establish a violation of § 75.380(d)(5) , however, “[i]t is insufficient
for the Secretary to merely cite the designated route as being out of
compliance with the regulation.” S. Ohio Coal , 14 FMSHRC at 1785.
Rather, “it is the Secretary’s burden to prove that, as compared to the
designated route, there is at least one other escapeway route that [he] has
determined more closely complies with the standard’s requirement.” Id.
894
F.3d at 1295-96. The circuit court then turned to an analysis of
whether the Secretary had presented substantial evidence in support of its position.
The court found that the Secretary had failed to carry his burden and reversed
the Judge’s decision . Id. at
1296-1300.
Pertinent to this case, the circuit
court soundly rejected any notion that a Judge or the Commission must accept
MSHA disapproval of a plan merely because MSHA finds another plan to be
preferable. Even more pertinent, the court’s decision illustrates a point
of fundamental importance to this case — namely, the test of suitability is not
which plan MSHA might prefer, but instead whether the plan (i.e., route in Canyon
Fuel ) proffered by the operator is suitable. In other words, the
suitability determination is not an opportunity for MSHA to design a route or
develop a plan for the operator. MSHA’s duty is to review the plan
submitted by the operator and determine whether it achieves the requisite
safety and health requirements at the specific mine. [23]
The circuit court’s first inquiry in
examining the substantial evidence issue was whether the operator’s exit point
was suitable when examined on its own and without reference to the MSHA plan.
After the court determined that the point of exit under the operator’s plan was
suitable, it then turned to the unique aspect of comparing routes of exit under
the governing standard. Id. at 1297-98.
In Canyon Fuel , there was no
dispute that the escapeway preferred by the Secretary provided a preferable
location for exiting the mine. It had more room and quicker access to
medical assistance. However, the operator’s escapeway was “suitable”
notwithstanding the better conditions at the point of exit under MSHA’s
preferred route.
Canyon Fuel , therefore,
perfectly illustrates that MSHA must make its suitability determination based
on the operator’s specific plan. Even in the unusual circumstances where
the mandatory safety standard required a comparison of escapeways, MSHA could
not conclude an escapeway was unsuitable because it preferred certain
characteristics of an alternate escapeway. It could not compare escapeways
and find one “more suitable” than the other. The court required an initial
determination of whether the escapeway developed by the operator was suitable.
Only then did the comparison aspect of this specific regulation come into play.
This is a critical point for this case.
Here, MSHA’s duty was not to determine which of two plans it preferred or to
evaluate the proffered plan as though it were a possible alternative to the
existing plan. MSHA’s task was to determine whether the plan submitted by
the operator was suitable. This task does not require or permit formulation
by MSHA of a new plan or comparison by MSHA with an existing plan. The
operator’s presentation of the plan calls for a freestanding, fact-based determination
of whether the proffered plan is suitable — that is, whether it is appropriate
for achieving the safety and health requirements at the specific mine. Where,
as in this case, there has been no finding or evidence showing that the
operator’s plan has failed to meet those requirements, MSHA’s rejection of the
operator’s suitable plan and demand of a different plan, even applying the Prairie
State standard, is an abuse of discretion. [24]
From the foregoing, we
discern that the outcome of a suitability determination in this case does not
depend upon a didactic characterization of the standard of review as beyond a
preponderance of the evidence or abuse of discretion. Instead, at the end
of the day, MSHA must base a refusal to accept a ventilation plan only upon
substantial evidence that the proffered plan would not meet the safety
and health requirements at the specific mine. Certain
principles become clear.
First, the Secretary
bears the burden of introducing evidence to support the proposition that the
proffered plan does not achieve the safety and health ventilation requirements at
the specific mine.
Second, there is not a presumption that
the Secretary’s opinion is correct. Under any standard of proof, the
Secretary must present substantial evidence to support his position. That
evidence must be sufficient for a reasonable person to conclude that usage of
the plan under review is not appropriate to achieve
the safety and health ventilation requirements at the specific mine.
Third, in reviewing a proposed
ventilation plan, MSHA does not have a right or responsibility to determine
whether an alternative plan — or even an existing plan — would also achieve the
safety and health ventilation requirements at the specific mine. Section
303(o) expressly divides responsibilities between the operator and MSHA. The
operator has the duty to develop a plan for maintaining adequate ventilation
and respirable dust control in the specific mine. MSHA has the duty to
review the plan. But the mine is not federal property: it is the operator’s
investment-backed business, and under the law it retains the right to have its
mining plans approved unless they fail to conform to duly-promulgated federal
and state standards and regulations, including the health and safety standards imposed
by and under the Mine Act.
An operator’s desire to maximize mining
efficiency is thus acceptable — or “suitable” — provided it maintains adequate
ventilation and respirable dust control in the specific mine. Section
303(o) does not require, and indeed does not permit, MSHA to design the
ventilation plan. Section 303(o) does not call for a “comparability”
analysis of potentially different ventilation plans. Thus, section 303(o)
does not call for MSHA to develop a plan of its own and impose such plan upon
the operator. Suitability is the standard. If the operator’s plan is
suitable – that is, is appropriate for maintaining adequate ventilation and
respirable dust control, then it meets the requirements of section 303(o).
The Judge’s error here is that she
failed to evaluate the District Manager’s decision and the evidence in support
of that decision under the correct legal standard, i.e., whether the operator’s
plan was suitable, and instead, simply considered whether MSHA abused its
discretion in rejecting the operator’s plan. The problem with this analysis
is that it ignores the language of the statute and implementing standard and
conflates the District Manager’s decision with the Secretary’s burden of proof
at trial. If the Secretary is permitted to simply endorse the District
Manager’s decision with post hoc rationalization and evidence adduced at trial,
then an operator would never prevail where the agency has rejected its proposed
plan. [25]
Application
of Legal Principles
The
record in this case reveals that MSHA did not review the operator’s plan for
suitability. Instead, MSHA compared the proffered plan to the existing plan
and decided it preferred for the operator to maintain the existing plan. MSHA
made a comparability analysis rather than a suitability analysis. The
Secretary did not find, or even offer evidence showing the new plan proposed by
the operator was not suitable — that is, would not meet the requirements for a
safe and healthful environment.
MSHA refused to
approve the operator’s proposed plan, despite the fact that the evidence shows it
addressed well the major concerns of the standard, provided a lower risk of
spontaneous combustion, lower risk of exposure to roof control hazards, better
adaptability to the escapeway plan, and equivalent insufficiency to the
dual-entry system in terms of what the fan stoppage test revealed — a problem of
noxious gases and low oxygen that MSHA’s alternative plan also failed to
satisfy and that the operator committed to fix. Tr. 50, 70-72, 79, 118-19,
120, 126, 128, 163; RH Tr. 78-79, 89-90; Sec. Ex. 15(a).
MSHA based its
denial of the operator’s proposed plan, and the Judge and our colleagues base
their approving opinions, on comparison-based claims — namely, that (1) the
dual-entry system was more effective at removing noxious gases from the
tailgate area where miners work, (2) the dual-entry system enabled better
monitoring of conditions in the gob and earlier detection of noxious gases before
the gases reach the working face, (3) the dual-entry system did not present
substantially greater material handling hazards, (4) there was a suitably low
risk of spontaneous combustion under the dual-entry system, and (5) fan
stoppage tests did not strongly favor either plan.
The
fan stoppage tests were inconclusive and at best, favored the operator’s plan. [26] As to
points 3 and 4 above, those factors demonstrate that MSHA was making a
comparability analysis rather than a suitability analysis. These factors
consider whether the operator’s plan has benefits that make it “more suitable”
than the plan preferred by MSHA. [27]
The only issue that bears upon the suitability of the operator’s single-entry
plan is whether substantial evidence shows that the operator’s plan is not
sufficient to achieve safety and health requirements related to the possibility
of entry of noxious gases into areas where miners work. [28]
Rather, MSHA’s
disapproval of the operator’s proposed plan was based largely on the conclusion
that the single-entry plan doesn’t justify that it will be “as effective at
minimizing risks” and thus “[w]e feel ” that the dual-entry return is the
“best option.” Sec. Ex. 4 (emphasis added). Further considering the
pros and cons, MSHA stated in a subsequent rejection that “it has been decided
that dual tailgate entry is in the best interest for health and safety of the
miners” in part because “air course resistance of the tailgate would be four
times the value of a dual return.” Sec. Ex. 7. MSHA provided no
explanation as to how this makes the operator’s plan “unsuitable,” and the
record does not support a conclusion that it is.
Citing
a report prepared by Dennis Beiter, MSHA’s Senior Mining Engineer in the
Ventilation Division (“Beiter’s report”), finding that the dual tailgate return
resulted in better protection of miners through earlier detection of
spontaneous combustion, MSHA rejected the operator’s plan Sec. Ex. 10; Sec.
Ex. 10a (the Beiter report). This finding makes no sense. MSHA found
that the risk of spontaneous combustion under the existing blowing system was
so low that the advantage of the operator’s plan to the prevention of a
spontaneous combustion was irrelevant. Beiter expressly testified “the
present system is effectively slowing the potential for spon com to occur in
the workout areas of the longwall panels.” Tr. 106. Then, having found
very little or no risk of spontaneous combustion and no reason for a plan
providing additional preventative advantages, the agency cites possible better
detection of a potential combustion as a reason for preferring its plan. Therefore,
in the agency’s view, outright protection was not useful but earlier detection
was. It is impossible to reconcile these theories. [29]
Beiter’s
report did not find or even suggest that the operator’s ventilation plan was
not suitable. It reads from beginning to end as a “comparison” report. Substantial
evidence does not support that the operator’s plan was unsuitable, or even that
MSHA’s plan was more suitable. Rather, the evidence will indicate that
District Manager Riley’s decision to reject Signal Peak’s proposed plan was
arbitrarily driven by a preference for MSHA’s dual-entry system, as MSHA
Official Kevin Stricklin had instructed Riley not to approve the operator’s
plan regardless of the results of the fan stoppage test. Tr. 161-62.
Detection and
Removal of Noxious Gases
The
Judge found that District Manager Riley had explained in his testimony and
letters to Signal Peak that the dual-entry system is “more effective” because
it helps to prevent noxious gas accumulations in the gob from entering the
working areas. 39 FMSHRC at 652. Note the clear determination that MSHA
and the Judge engaged in a comparison study rather than suitability analysis.
MSHA provided no evidence that Signal Peak’s plan was not adequate for
operation of the mine in compliance with all mandatory safety standards for
ventilation. In particular, the Judge cited three different events that
MSHA said could cause the release of noxious gases or low oxygen to occur: (1)
a fan stoppage; (2) the air pressure in the tailgate entries and face becoming
lower than the gob’s air pressure — which would create a path of least
resistance for the gases to travel from the gob to the working areas — or (3) a
delayed rock fall that could push gob air out on the face. RH Tr. 36-37,
111-12.
MSHA’s rejection
of the single-entry system was premised on the erroneous assumption that a
single-entry would permit low-oxygen gob air to enter the face. Tr. 79,
131, 143, 145-46. The Beiter report is based upon “expectations.” However,
these expectations failed to take into account the nature of the blowing
ventilation system employed at Signal Peak. As Signal Peak pointed out, the
blowing ventilation system was distinguishable from an exhausting ventilation
system. [30]
In the latter, it is more common to encounter higher levels of methane at the
tailgate drive, because the tendency is to pull air from the gob. [31] SP Br.
at 21-22; Tr. 131. In fact, prior to employing the blowing ventilation
system, the operator did experience lower levels of oxygen coming out of the
gob onto the face, prompting the change from the exhausting system to the
blowing system. Tr. 188. Because the air pressure at the face is
greater than in the gob, under normal mining, noxious gases do not leak out of
the gob onto the face under the blowing system. Tr. 130, 143.
Moreover, very
importantly, the actual conduct of the fan stoppage tests demonstrated that
even when the system was not functional, the oxygen levels were better with the
single-entry system, contrary to MSHA’s unsubstantiated speculation. Tr.
163; RH Tr. 89-90; Sec. Ex. 15(a). The actual tests, therefore, contradict
the “expectation” basis for the incorrect supposition in the Beiter report
thereby undercutting MSHA’s rationale for preferring the dual entry system.
Certainly, they do not support a finding that the single entry system was not
suitable in the context of this case.
MSHA
presented no evidence other than a wholly theoretical opinion without any
supporting data, examples, other similar mines, or prior events about a
possibility to support that theory. [32]
MSHA’s witnesses provided conclusory opinions as to the potential of noxious
gases exiting onto the face in a single-entry system. However, their
opinion testimony fails to consider the evidence pertaining to the air pressure
differential employed in the blowing ventilation system, the high volume of air
being pushed across the face in the blowing system, or the fact that no noxious
gases exited the gob during the fan stoppage tests. Tr. 79, 131, 143,
145-46.
Farinelli
explained that the operator had a carbon monoxide detection unit at the mouth
of the panel and that it detected not only the amount of carbon monoxide in the
airflow but more importantly the quantity of carbon monoxide. Tr. 149. Therefore,
it created a baseline for the amount of carbon monoxide. Tr. 149. With
that information, the operator could trend the amount of carbon monoxide
separate from just measuring amounts in airflow at any given point. Tr.
149. As the testimony established it is important to know the quantity of
CO present in the gob and the sensor in the No. 1 entry makes that
determination. Tr. 148.
The
evidence supports that the single-entry system was more effective at addressing
the potential concerns MSHA identified. One type of event posited by MSHA
as disrupting the operator’s ventilation system and potentially allowing for
the release of noxious gases was a fan stoppage. [33] As
noted above, fan stoppage tests did not show an advantage for the existing plan.
In fact, the test revealed that the results were slightly better under the
operator’s single-entry plan. District Manager Riley acknowledged that the
oxygen levels fell to a slightly lesser degree under the test for the
single-entry plan. Tr. 163; RH Tr. 89-90; Sec. Ex. 15(a). Thomas
Morley, MSHA Mining Engineer in the Ventilation Division, who performed the fan
stoppage tests, acknowledged on cross-examination that, if miners are
“traveling . . . coming off the longwall face and turning right [onto tailgate
entry number 1], . . . if there are contaminants coming out of the gob at that
corner, the more air there is to dilute them, [which would exist under the
single-entry system], the better.” Tr. 79. This evidence does not
support the decision to prefer the dual entry system and detracts from the
Judge’s finding that the dual-entry system was better suited at preventing gob
air from coming out onto the face. Most importantly, there is not a finding
or evidence that the volume of air would not be suitable for the miners. The
Judge accepted an unproven MSHA preference and failed to cite substantial
evidence that the single entry system would not provide suitable atmospheric
conditions.
The
other type of hypothesized events that would disrupt the blowing ventilation
system were that a rock fall in the gob might push gob air out on the tailgate
area or that, if air pressure in the tailgate entry fell below the gob’s air
pressure, gases might travel out from the gob to the tailgate where miners occasionally
are present. Signal Peak witnesses testified that there was no evidence
that a rock fall pushing gases into the tailgate had ever occurred or that such
an event was even likely to occur, and the Secretary did not contradict that
testimony. Tr. 146, 155 (Farinelli’s testimony that no gob air was pushed
onto the face due to falls in the gob).
With
regard to a change in the air pressure differential allowing gob air to be
pushed out into the working area, Vice President of Engineering Farinelli
testified that air pressure in the active workings and gob are very similar and
that air pressure in the gob would stay lower than at the face. Tr. 145-46.
Farinelli testified that even when the barometer has dropped, meaning that the
pressure in the gob was greater than in the mine generally, there had not been
low oxygen concentrations on the longwall face. Tr. 145. A blowing
system avoids this issue by providing air into the mine at higher than atmospheric
pressure. Tr. 108, 145-46. Further, the blowing system pushed a large
volume of air across the longwall.
The
mine typically has approximately 80,000 cubic feet per minute (cfm) of air
movement along the longwall face. Tr. 19. MSHA ventilation standards
require 30,000 cfm across the face of a longwall. 30 C.F.R. § 75.325(c)(1).
In a single return, all 80,000 cfm is sent through one return. MSHA did not
provide any evidence showing how a low quantity of nitrogen or some other gas
introduced into this flow by a single, never before occurring and highly
unlikely rock fall could cause the oxygen on the system to fall below an
adequate level. Further, there was no evidence of how long this entirely
theoretical shortage of oxygen would exist.
Finally,
as for detection, Farinelli testified that in a single-entry system, the
operator collects weekly bag samples around the perimeter of the gob and at the
tailgate to monitor for early indicators of spontaneous combustion, which would
serve the same purpose as the tube bundle under the dual-entry system. Tr.
105-07, 147-48. Signal Peak also tests for air velocity at the mouth of the
tailgate. Tr. 147-48. Because the location of the monitoring in the
single-entry system is stationary, the operator contends that it would be more
effective at providing accurate readings of the trend of carbon monoxide (“CO”),
which is a more accurate measure of potential spontaneous combustion, whereas
the monitor in the dual-entry system would be continuously moved in the No. 2
entry and hence, less accurate of current trends. S. Br. at 27. Thus,
the evidence suggests that the operator’s plan would be as effective as the
Secretary’s at detecting noxious gases. Again, and most importantly, MSHA
did not present any evidence that the operator’s system was insufficient or not
suitable. MSHA states only that it prefers its concept to the operator’s, a
position that fails to provide the substantial evidence necessary to sustain
the Secretary’s burden of proof to show the operator proposed plan was
inadequate to maintain adequative ventilation and respirable dust control.
Spontaneous
Combustion
Even if one
accepts MSHA’s inherently contradictory position that prevention of a
spontaneous combustion was not important but early detection was, no actual
evidence supports a finding that the operator’s plan was not suitable — that
is, did not achieve the purpose of a ventilation plan. First, as noted,
MSHA’s witnesses admitted that the risk of spontaneous combustion was low given
the operator’s change to a bleederless system in Janaury 2010. Tr. 185,
253. The operator did so because it had been experiencing elevated levels
of CO in the gob. Stip. 5. The “bleederless” system limits the CO and
oxygen in the gob, thus reducing the potential for spontaneous combustion. Id .
Second,
the introduction of nitrogen into the gob served to reduce the level of oxygen
in the gob, thereby further reducing the possibility of spontaneous combustion.
Stip. 6; RH Tr. 79-80; Tr. 31. In December 2011, Signal Peak experienced a
spontaneous combustion event near the inby end of the headgate on the 2R panel.
Tr. 252; Stip. 6. It was caused by oxygen pulled in by the mine’s
exhausting ventilation system through subsidence cracks on the surface into the
rider seam above the main seam being mined. As a result of the event,
Signal Peak, with the approval of MSHA, instituted additional measures on
subsequent longwall panels, including lowering the gob’s oxygen levels by
injecting nitrogen into the gob about 10-15 crosscuts inby the face while
monitoring the oxygen levels on an ongoing basis. Stip. 6; RH Tr. 79-80;
Tr. 31. In addition, in January 2013, the operator replaced its exhausting
system with a blowing ventilation system. Tr. 185. By making these
changes, the operator has prevented any more occurrences of spontaneous
combustion. RH Tr. 176.
As
Signal Peak noted, the dual-entry system directs a certain amount of air inby
in the No. 1 entry of the tailgate for a distance of one crosscut
(approximately 200 feet or more). Tr. 34, 47, 128. This introduces more
oxygen into the gob than the single-entry system, which is counter to the goal
of reducing oxygen in order to prevent spontaneous combustion. MSHA’s
witnesses conceded this point. Tr. 50, 128; RH Tr. 78-79. The
operator’s proposed plan would omit the “T-split” and “back-around return” in
the tailgate and seal off the No. 2 entry, and instead have the air leave the
mine in just one entry, tailgate No. 1 entry. SP Ex. M. According to
Farinelli, the single-entry system would better control spontaneous combustion
by reducing the amount of air introduced into the longwall gob both on the
headgate side and through the back return. Tr. 118-19, 126. Because in
a single-entry system the gob isolation seals would be built during the
longwall retreat in the crosscuts between the Nos. 1 and 2 entries, rather than
between the Nos. 2 and 3 entries after the longwall face passes, air is not
introduced into the gob along the headgate side. [34] Tr.
109-10; RH Tr. 83-86.
The
Judge relied on MSHA’s witnesses, who testified about measures to prevent
airflow from the gob into the working face in the dual-entry system. However,
Beiter stated that “a curtain was typically installed in the crosscut inby the
longwall face where the headgate seal would later be constructed. That
curtain was described as ‘not tight.’” Sec. Ex. 10(a), at 4. In
Beiter’s view, “[c]onstruction of a more substantial control such as a
permanent stopping or framed check curtain (temporary stopping) instead of a
curtain described as ‘not tight’ would reduce the quantity of intake air leaking
into the worked-out area.” Id .; Tr. 10.
While
this would prevent air from flowing through any opening into the gob on the
headgate side before the seal is constructed, such measure would be temporary
and susceptible to failure. Farinelli testified that the operator had tried
to tighten the curtain in the past but had encountered difficulties from roof
falls occurring behind the longwall face which would blow down the curtain,
requiring mine personnel to have to go back in to rebuild it, creating
significant safe-access risks for miners. Tr. 153-54.
Thus,
based on the record, we conclude that substantial evidence does not support
MSHA’s preference for the dual entry system let alone support an unmade finding
that the single-entry system was not adequate for reducing the potential for
spontaneous combustion.
Material
Handling and Roof Hazards
While
the Judge found that Riley had a reasonable basis to believe that material
handling did not pose a significant hazard at the mine and that roof hazards
were not more likely to occur under the dual-entry system, 39 FMSHRC at 650,
652, the evidence is uncontroverted that the operator’s plan would minimize the
risks to miners of material handling and roof control hazards associated with the
construction of seals immediately adjacent to the unsupported longwall gob.
Sec. Ex. 6 at 2. By not requiring the operator to maintain the tailgate No.
2 entry, miners would not be exposed to roof control hazards. Tr. 82, 120.
It appears that the Judge failed to recognize the significant risk involved in
maintaining the second entry. Under the operator’s current dual-entry plan,
over 100 seals are constructed each year immediately adjacent to the gob. Sec.
Ex. 6. Beiter even conceded that it is preferable to build the seal in
advance of the longwall rather than right next to the gob. Tr. 12, 48.
Although
MSHA’s witnesses testified that the operator has been doing a “pretty good job”
in mitigating the hazards that relate to roof control and material handling, RH
Tr. 43-45, 81-83; Tr. 14-15, 49-50, an operator’s diligent efforts at ensuring
miners’ safety is not tantamount to a conclusion that the dual-entry system is
itself suitable, let alone support for the conclusion that the single-entry
system is unsuitable. Such a conclusion would penalize the operator for its
safety record and would undermine the Act’s purpose.
Ultimately,
we conclude that substantial evidence supports that the Secretary only
presented evidence arguing, and even failing there, for MSHA’s preference for
the MSHA endorsed system and did not introduce substantial evidence to show
that, in the words of MSHA’s ventilation plan manual, the operator’s proposed
plan was not appropriate to achieve the safety and health requirements for the
mine. This is precisely the same sort of decisionmaking the Tenth Circuit
found unacceptable in Canyon Fuel . Here, as in that case, MSHA has
utterly failed to address competing risks and benefits or to support its
rejection of an operator’s plan with competent evidence.
CONCLUSION
Based on the
foregoing, we conclude that the Judge erred in applying the wrong legal
standard and conclude that substantial evidence does not support that the
operator’s ventilation plan was not suitable. Accordingly, we would vacate
and reverse the Judge’s decision.
/s/ William I.
Althen
William
I. Althen, Acting Chairman
/s/ Michael G.
Young
Michael
G. Young, Commissioner
[1] The votes
of the four Commission members regarding whether to affirm the decision below are
evenly divided. All four members join in the factual and procedural background
section of this decision. However, Commissioners Jordan and Cohen join in
one opinion voting to affirm, while Acting Chairman Althen and Commissioner
Young vote to reverse the Judge’s decision .
[2] Section
75.370(a)(1) states in relevant part that “[t]he operator shall develop and
follow a ventilation plan approved by the district manager” and that “[t]he
plan . . . shall be suitable to the conditions and mining system at the mine.”
30 C.F.R. § 75.370(a)(1).
[3] The
necessary components of spontaneous combustion are: (1) coal of a suitable
chemical and physical nature; and (2) sufficient broken coal and air leaking
through it to supply the oxygen needed. DMMRT at 529.
[4]
Bleeder
entries” are defined as “[p]anel entries driven on a perimeter of a block of
coal being mined and maintained as exhaust airways to remove methane promptly
from the working faces to prevent buildup of high concentrations either at the
face or in the main intake airways.” DMMRT at 55.
[5] A “rider
seam” is defined as “[a] thin coal seam above a workable seam, or a seam that
has no name.” DMMRT at 460.
[6] Beiter was not
told whether District 9 had a preference of one plan over the other, but
instead was directed to perform an independent review. Tr. 108-09.
[7] The first
fan stoppage test occurred on Monday, April 25, for the dual-entry system. It
lasted 90 minutes. The second 90-minute test for the single-entry system
occurred three days later on Thursday, April 28.
[8] The operator had
twice before requested issuance of a technical citation. On those occasions,
however, MSHA continued to consider the request and asked for additional
information or investigation .
[9] MSHA’s
original citation included a reference to the deficiencies in the mine’s
current ventilation plan discovered during the fan stoppage tests. Due to
the ongoing negotiations addressing these deficiencies, however, the Secretary
at hearing moved to amend the citation to remove that portion, and the Judge
granted the motion. 39 FMSHRC at 638, n.1. As such, the fan stoppage
deficiencies in the current plan are not at issue in the case before us.
[10] We also
uphold the District Manager’s and Judge’s decisions as necessary to prevent the
weakening of standards under section 101(a)(9) of the Mine Act. 30 U.S.C. §
811(a)(9). In our view, the Act’s prohibition of weakening of mine health
and safety standards is equally applicable to ventilation plans. Just as
new mandatory standards may not “reduce the protection afforded miners”
provided by the standards they replace, see id. , we would decline to
read new plans – enforced as mandatory standards – to
reduce the protection of miners provided by the plans they replace. UMWA v.
Dole , 870 F.2d 662, 671 (D.C. Cir. 1989) (holding that roof control plans
are enforceable as mandatory standards) (citing Zeigler
Coal Co. v. Kleppe , 536 F.2d 398 (D.C. Cir. 1976 )).
[11]
Our colleagues candidly acknowledge that they believe the decisions of the
Seventh Circuit in Mach Mining and the D.C. Circuit in Prairie State
Generating Co. were wrongly decided. Slip op. at 17 n.5. Indeed,
their opinion is predicated on a legal theory that is antithetical to those two
circuit court decisions.
[12]
Our colleagues, purporting to rely on Secretary of Labor v. Canyon Fuel Co. ,
894 F.3d 1279 (10th Cir. 2018), assert that section 303(o)’s requirement
that a ventilation plan be “suitable to the conditions and mining system at the
mine” limits the Secretary’s authority when reviewing ventilation plans to a
determination of whether the plan submitted by the operator to MSHA “achieves safety
and health requirements for adequate ventilation.” Slip op. at 15-17, 18.
Our colleagues expressly reject the idea that “suitable” may include a
determination of which of two proposed ventilation plans affords the greatest safety
for miners. Thus, they state, “[s]ection 303(o) does not call for a
‘comparability’ analysis of potentially different ventilation plans.” Id.
at 20. However, our colleagues provide no standard for determining when a
proposed plan “achieves safety and health requirements for adequate
ventilation” and do not define the word “adequate.” Their rejection of
MSHA’s ability to compare the relative merits of alternative ventilation plans
lacks legal foundation.
Moreover,
our colleagues fail to understand MSHA’s use of the word “minimum” in its
Handbook for Mine Ventilation Plan Approval Procedures. MSHA Handbook
Series, Handbook Number PH13-V-2, Mine Ventilation Plan Approval Procedures
(Apr. 2013). The Handbook is saying that once the ventilation plan is
approved, it becomes the minimum standard for ventilation requirements at the
mine. In no way is MSHA suggesting that ventilation plans need only provide
minimum protection for miners.
Far from a decision which
“perfectly illustrates” our colleagues’ position, slip op. at 19, Canyon
Fuel reiterated the principle set forth in Mach Mining , 728 F.3d at
658, and Prairie State , 792 F.3d at 92, that “the
Secretary acts arbitrarily if he ‘entirely fail[s] to consider an important
aspect of the problem.’” 894 F.3d at 1297. Indeed, we are not aware of
any pronouncement by the Commission or a circuit court in the history of the
Mine Act and its predecessor Coal Act going back to 1969 which sanctioned the
idea that a ventilation plan is “suitable” because it is adequate even though
another plan for the same mine afforded better protection for miners. Quite
to the contrary, in UMWA v. Dole , supra , 870 F.2d at 666,
the D.C. Circuit held: “Thus when new standards replace existing mandatory
health or safety standards it is not sufficient that the new standards
demonstrate a reasonable accommodation of the competing goals of safety and
efficient coal mine operation. The statute expressly mandates that no
reductions in the level of safety below existing levels be permitted,
regardless of the benefits accruing to improved efficiency.”
Moreover, in actual
practice, our colleagues’ insistence that MSHA must view an operator’s proposed
plan in a vacuum and turn a blind eye to an alternative plan (even one
currently in effect at the operator’s mine) is difficult, if not impossible, to
apply. As recognized by Congress, ventilation issues are “complex and
potentially multifaceted,” S. Rep. No. 95-181, at 25 (1977), reprinted
in Legis. Hist. at 613, and thus ventilation plans are more readily
assessed by balancing competing concerns in a mine, which necessitates an
evaluation of potential solutions and the potential effects of those solutions
on other aspects of the plan. Thus, in determining “suitability,” there are
trade-offs which must be evaluated. In the present case, MSHA’s plan
emphasized protection from noxious gases entering working areas while Signal
Peak’s plan emphasized protection from spontaneous combustion. Rather than
an arbitrary determination of whether a plan (viewed with blinders on to avoid
consideration of any other options) is “adequate,” the process of evaluation
involves a balancing of hazardous risks. Instead of our colleagues’
formulation, we are guided by the D.C. Circuit’s statement in Prairie State
that as used in section 75.370(a)(1) “suitability is a discretionary,
contextual exercise of expert judgment regarding the safeguards needed to keep
miners safe.” 792 F.3d at 93.
[13] The test
was meant to determine how quickly gases would come out of the gob into the
working face in the event of a fan stoppage.
[14] Signal Peak
also points to testimony from Morley regarding the fan stoppage tests,
which could potentially be interpreted to suggest that noxious gas and low
oxygen would be unlikely to exit the gob in the event of a fan stoppage, under
the single-entry system. See , e . g ., Tr. 79 (“We didn’t
find many contaminants at all”); Tr. 80-81 (stating that “good quality” air
came out from behind the shields); SP Post-Hrg. Br. at 16. This testimony
is not relevant, however, because Morley’s statements were made in response to
questions from Signal Peak’s counsel about the air quality that had occurred
during the time in between the two fan stoppage tests . See Tr.
79 (Q: “[D]id you compare on Monday with readings on Tuesday and Wednesday
to see whether there were more contaminants on the dual entry or the single
entry?”) (emphasis added). The second test did not occur until Thursday ,
April 28, 2016. Sec. Ex. 15 at 4. As such, the Judge appropriately did
not give much weight to Morley’s testimony in favor of the operator on this
issue.
For the same reason, we reject the
operator’s argument that the air in the gob would not come out into the face
during normal mining operations because the mine face has higher air pressure
than the gob. Tr. 130, 143. MSHA was not concerned with normal mining
operations. MSHA is concerned with aberrations from normal mining
operations – where the ventilation is being disrupted or not properly
controlled (such as a drop in barometric pressure or a loss of fan power). RH
Tr. 122-23.
[15] Signal Peak
had never submitted to MSHA any information regarding whether the back-up fan
had a separate power source or whether it could easily be activated – even
though MSHA had specifically requested this information. Sec. Ex. 10(a) at
5 (Beiter Report) (requesting clarification on “the means or time necessary for
implementing [the back-up fan’s]
usage
following a main fan outage . . . [and] whether or not the backup main fan was
powered by a power source separate from the main fan”).
[16]
Incubation periods are based on the “temperature versus the moisture content
versus the oxygen content” of the mine. RH Tr. 42-43.
[17] “Substantial
evidence” means “such relevant evidence as reasonable minds might accept as
adequate to support [the Judge’s] conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Landes Const. Co. v. Royal ,
833 F.2d 1365, 1371 (9th Cir. 1987); see also Rochester & Pittsburgh
Coal Co ., 11 FMSHRC 2159, 2163 (Nov. 1989) quoting Consolidated
Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). In reviewing the whole
record, an appellate tribunal must consider anything in the record that “fairly
detracts” from the weight of the evidence that supports a challenged finding.
Midwest Material Co ., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal
Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)).
[18] Signal Peak
was issued a technical citation alleging a violation of 30 C.F.R.
§
75.370(a)(1), which mirrors the language of the Mine Act and provides in
relevant part that “[t]he operator shall develop and follow a ventilation plan
approved by the district manager” and that “[t]he plan shall be designed to
control methane and respirable dust and shall be suitable to the conditions and
mining system at the mine.”
[19] Use of the
term “minimum” by MSHA in conjunction with safety and health requirements appropriately
gives one pause. But the agency’s use of the term “minimum” most certainly
does not connote in any way an insufficient system. It means, as MSHA says,
that the ventilation plan must maintain adequate ventilation and respirable
dust control in the mine. If the plan maintains adequate ventilation and
respirable dust control, it is suitable. MSHA obviously and correctly
recognizes that there may be many ways of accomplishing a goal. The
critical requirement is that the ventilation plan is appropriate and fit for
providing a safe and healthful atmospheric condition in the specific mine. In
this matter, the agency has not analyzed the operator’s plan from that
standpoint, nor has it made a persuasive case that it fully considered the
relative health and safety benefits of the operator’s plan in a way that is not
self-contradictory or superficial.
[20] In doing
so, the circuit court commented upon the expertise of MSHA in reviewing
ventilation plans. With all respect for the circuit court, the Commission
and its Judges often deal with complex issues involving expert witnesses. For
example, disputes regarding whether a violation is significant and substantial
turn on the evidence for the Secretary and operator of the reasonable
likelihood of a hazard and the reasonable likelihood of an injury if the hazard
occurs. In S&S cases, the Secretary must establish a preponderance of
the evidence demonstrating the reasonable likelihood of a hazard or injury.
Often this involves disputed testimony between contending experts. Such
inquiries call for determinations by Judges very much in the nature of whether
a ventilation plan is fit for providing ventilation in accordance with MSHA’s
mandatory standards.
[21] We continue
to believe that Prairie State Generating Co ., 35 FMSHRC 1985 (July
2013), aff’d , 792 F.3d 82 (D.C. Cir. 2015) and Mach Mining, LLC ,
34 FMSHRC 1784, 1790 (Aug. 2012), aff’d , 728 F.3d 643 (7th Cir. 2013),
were wrongly decided. Contrary to our colleagues’ assertions (slip op. at 7
n.2), we recognize that those decisions were upheld by the circuit courts as
permissible interpretations by the Commission, and we do not “reject” the
holdings in those decisions because it is unnecessary to do so. Here, the
outcome does not turn upon the standard of review but rather the fact,
demonstrated below, that MSHA’s decision to reject the operator’s proposed plan
was not analyzed under the safety standard provided by the statute and was not supported
by substantial evidence.
[22] 30 C.F.R. §
75.380(d)(5) provides “[e] ach escapeway shall be
. . . [l]ocated to follow the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners.”
[23] Section
75.380(d)(5) is an unusual suitability provision. It does not require MSHA
to determine only whether an escapeway is sufficient to reach a mine opening
“suitable” for safe evacuation. Instead, if there are more than one
escapeways to a suitable evacuation point, MSHA must decide whether the
escapeway designated by the operator is “the m ost
direct, safe and practical route .” Therefore, unlike section 303(o)
that mandates only that the ventilation plan be suitable, section 75.380(d)(5)
may require comparison of alternative “suitable” escapeways. In the present
case, MSHA has not analyzed the operator’s plan in terms of its suitability.
As in Canyon Fuel , this is a fatal flaw. It is self-evident from the
record evidence in the case and the specious and, at times, contradictory,
rationales offered by the agency that the District Manager made up his mind
that he preferred the existing plan and then cobbled together whatever support
he could find to purport that MSHA’s plan was preferable, without holding the
operator’s plan to be unsuitable. Contrary to our colleagues’ claim in
footnote 3 of their opinion, MSHA never made a determination that safety would
be unacceptably compromised, taking into account the relative risks and
benefits of both plans. The agency relied on evidence that does not support
its position, such as the fan test results; dismisses without explanation
legitimate and evidence-based concerns about material handling safety concerns;
and asserts simultaneously that its plan is superior – again, using the wrong
standard – because it provides better response to spontaneous combustion, while
diminishing the operator’s concerns about the occurrence of spontaneous
combustion – which is better addressed by the operator’s plan. In short,
the decision is hobbled by the kind of incoherent and erratic rationalizing
that marks arbitrary and capricious agency actions.
[24] To be sure,
because good faith negotiations are required before MSHA rejects a plan, if
MSHA does not find a plan suitable, MSHA must discuss the plan and suggest
changes that would satisfy its concerns with achieving the requisite safety and
health. But MSHA may not reject a suitable plan — that is, one that will
achieve adequate ventilation and respirable dust control in the specific mine —
simply because MSHA prefers a different plan.
[25] Even under
the more deferential standard applied in Mach and Prairie State ,
substantial evidence does not support the Judge’s conclusion that MSHA’s
District Manager Riley did not abuse his discretion in rejecting the operator’s
proposed plan in this case because he failed to consider whether the operator’s
proposed plan was suitable under section 303(o).
[26] The results
of the fan stoppage tests were inconclusive and certainly did not support that
the operator’s single-entry system was unsuitable to the conditions at the
mine. The Secretary’s own witness, MSHA engineer Thomas Morley, concluded
that the fan stoppage test results for both the dual-entry and single-entry
system were similar — which undermines Riley’s testimony that the dual-entry
system is better at preventing gob air from coming out onto the face than the
single-entry system. Tr. 70-72.
[27] As Canyon
Fuel illustrates, if the operator’s plan was unsuitable, the cited benefits
would not make it suitable. In Canyon Fuel , if the exit point of the
operator’s route were not suitable, the much better conditions of the route of
egress would not have made it the most direct route to a suitable exit. Canyon
Fuel , supra , 849 F.3d at 1295-96.
[28] Nonetheless,
we must comment that the Secretary and Judge’s casual disregard for the
possibility of a spontaneous combustion in a mine with the potential for and
history of such events is troubling. Having had a combustion event, the
operator took prudent steps to reduce the chance of a repeat event. We
would not easily dismiss any prudent steps at further reducing the possibility
of such an event.
[29] As a matter
of commonsense as well as safety, the operator clearly desires and designs a
system that provides the best chance of avoiding spontaneous combustion. In
response to a question of why any heating incident is a major event, Fairnelli
responded, “[b]ecause [of] the potential it has to catastrophically destroy the
mine and, also, the danger it presents to every person underground.” Tr.
119.
[30] An
“exhausting system” means a fan pulls or draws air through the mine. The
danger of an exhausting system, however, is that it may pull air into the gob
through cracks in the mine surface, which increases the danger of spontaneous
combustion in the gob. Tr. 250-51. Under the current “blowing system,”
this danger is reduced when fans push and direct the air through the mine.
[31] Significantly,
Signal Peak’s mine did not have elevated levels of methane. See Stip.
3.
[32] Riley
testified about one instance of a concentration of carbon monoxide at the
headgate (opposite side of the longwall from the tailgate) in 2011 before the
mine switched to the blowing ventilation system to help alleviate the danger of
a spontaneous combustion. There is no evidence that MSHA even considered
this information in preferring the double entry system.
[33] Although
the Secretary disputes the results of the fan stoppage tests, his theory is
unfounded and speculative. It is undisputed that the tests were still run
three days apart, and that the gob gases had the entire three-day period of time
to build back up after the first test, consistent with the test plan protocols.
Sec. Ex. 15. The Secretary has adduced no evidence to suggest that the gas
build-up was affected in any way by the operator’s half-day delay in converting
the tailgate into a single-entry system. In fact, the testimony shows the
opposite to be more likely. The Secretary’s own witness, MSHA engineer
Morley, conceded on cross-examination that normal mining operations occurred
for all three days in between the tests, as planned. Tr. 70-71. Furthermore,
Morley conceded that having one of the three days of mining being run as
“normal” (i.e., under a dual-entry system) should not have negatively impacted
the gob’s ability to have a sufficient build-up of noxious gases by the time
the second test was due. Tr. 70-72. As such, it seems highly unlikely
that the operator’s slight deviation from the testing protocol in any way
interfered with the validity of the test results.
[34] There is no
evidence in the record that Riley considered the operator’s concern that the
dual-entry system would increase the risk of spontaneous combustion on the
tailgate side. Although Beiter testified that he had considered this
concern at the time he drafted his report, he conceded that his report failed
to explicitly address the issue. Sec. Ex. 10(a) at 2; Tr. 27.
Get today's answer for your situation
You just read Commission precedent from 2018. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.