Carbon County Coal Company

Plain-English summary

Carbon County Coal Company was cited for operating its Carbon No. 1 Mine without an approved ventilation and methane and dust control plan under 30 C.F.R. § 75.316. The dispute concerned whether the mine had to supply auxiliary fans with air greater than their free discharge capacity, rather than their installed capacity. The Commission found that MSHA had applied a general District 9 guideline without basing the requirement on particular conditions at Carbon County's mine. It vacated the administrative law judge's order and the citation, granted Carbon County's motion for summary decision, and dismissed the civil penalty proceeding.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.316
• Outcome: The citation and the administrative law judge's order were vacated, summary decision was entered for Carbon County, and the proceeding was dismissed.
• Key point: A mine-specific ventilation plan requirement must be based on conditions at the particular mine, not imposed as a general rule without notice-and-comment rulemaking.

Full text (FMSHRC public release)

CCASE:
MSHA V. CARBON COUNTY COAL
DDATE:
19850930
TTEXT:

             FMSHRC-WDC
             SEP 30, 1985

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.                                    Docket No. WEST 82-106

CARBON COUNTY COAL COMPANY

BEFORE: Backley, Acting Chairman; Lastowka and Nelson, Commissioners

              DECISION

BY THE COMMISSION:

This civil penalty proceeding under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine
Act"), is before the Commission on interlocutory review for a second
time. Carbon County Coal Company ("Carbon County") seeks review of an
order of a Commission administrative law judge denying the company's
motion for summary decision. For the reasons that follow, we vacate
the judge's order, grant Carbon County's motion for summary decision,
and dismiss the proceeding.

This case arises out of a citation issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA") on August 24,
1981, alleging that Carbon County operated the Carbon No. 1 Mine
without an approved ventilation system and methane and dust control
plan in violation of 30 C.F.R. § 75.316. The standard provides in
part:

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

--- Page 2 ---

Secretary shall be adopted by the operator and set out in
printed form.... Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.

Prior to March 1981, Carbon County operated the Carbon No. 1 Mine
under a plan approved by the Secretary of Labor. However, in March
1981, when that plan came up for the six-month review as provided by
the standard, Carbon County proposed a revision of the plan that MSHA,
acting on behalf of the Secretary, found unacceptable. Carbon County
proposed

--- Page 3 ---

~1368
that the volume of air delivered to auxiliary fans used on the
mining sections at the Carbon No. 1 Mine be greater than the
"installed capacity" of the fans. MSHA, however, insisted that the
auxiliary fans be provided with a volume of air greater than their
"free discharge capacity." 1/

The parties communicated concerning the two proposals, but
could not agree on which provision should be included in the plan.
On July 27, 1981, MSHA advised Carbon County that if an acceptable
plan was not received by August 12, 1981, approval for the ventilation
system and methane and dust control plan then in effect would be
revoked and further mining activity would be prohibited. Carbon
County continued to insist upon the installed capacity provision,
and MSHA revoked the plan in effect at the Carbon No. 1 Mine. When,
in the face of MSHA's revocation of its plan, Carbon County continued
to operate the mine, MSHA issued a citation asserting that Carbon
County was in violation of section 75.316. The citation was followed
by an order of withdrawal prohibiting any further mining of coal.
After the issuance of the closure order, Carbon County adopted the
free discharge capacity provision as part of its ventilation and
methane and dust control plan. As a result, the withdrawal order was
terminated, the violation of section 75.316 was deemed abated, and
the mining of coal was resumed. This civil penalty proceeding ensued.

At the close of pretrial discovery, Carbon County moved for

summary decision under Commission Procedural Rule 64. 29 C.F.R.
§ 2700.64. 2/ Carbon County argued that it was not in violation of
section 75.316 because MSHA had sought to impose the free discharge
capacity provision

1/ "Installed capacity" is the ventilation capacity of an auxiliary
fan when the fan is operated with tubing attached to it. Knepp dep.
at 19. "Free discharge capacity" is the ventilation capacity of an
auxiliary fan when the fan is operated without tubing attached. Knepp
dep. at 16. The tubing extends from the fan to the face area. The
fan pulls the air at the face area through the tubing and exhausts it
into the return air. In this way dust generated by the mining process
and gases liberated in the face area are removed from the mining
section.
2/ 29 C.F.R. § 2700.64 states in part:

    a. Filing of motion for summary decision. At
 any time after commencement of a proceeding and before
 the scheduling of a hearing on the merits, a party to
 the proceeding may move the Judge to render summary

--- Page 4 ---

    decision disposing of all or part of the proceeding.

    b. Grounds. A motion for summary decision

should be granted only if the entire record, including
the pleadings, depositions, answers to interrogatories,
admissions, and affidavits shows: (1) that there is no
genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter
of law.

--- Page 5 ---

~1369
as a general provision without regard to particular conditions at
the Carbon County No. 1 Mine, violating the principles controlling
the ventilation plan approval and adoption process as set forth in
Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). 3/ In an
unpublished order, the judge denied Carbon County's motion for summary
decision. The judge did not address the issues raised by Carbon
County--whether undisputed material facts in the record established
that MSHA had insisted upon the free discharge capacity provision
without regard to the particular circumstances at the mine and, if
so, whether the citation should be vacated. Rather, the judge viewed
the controlling issue as relating to the merits of the two proposals
and requiring a determination as to which proposal was safer.

Carbon County was granted interlocutory review by the Commission

of the judge's order. On review, and following oral argument attended
by the parties and by amicus, the American Mining Congress, the
Commission concluded that the judge had erred. Carbon County Coal
Co., 6 FMSHRC 1123 (May 1984). The Commission held the court's
discussion in Zeigler of the legal principles governing the
ventilation plan approval and adoption process to be controlling, and
stated, "if MSHA's insistence in this case upon inclusion of the free
discharge capacity provision in Carbon County's plan contravened the
principles of Zeigler, the citation and withdrawal order issued to
Carbon County cannot stand.... [I]t is incumbent on the judge ... to
first consider and rule on Carbon County's arguments in its summary
decision motion concerning the application of Zeigler to the facts at
hand." 6 FMSHRC at 1127. The Commission vacated the judge's denial
of Carbon County's motion for summary decision and remanded the matter
to the judge for reconsideration.

On remand the judge again denied the operator's summary decision

motion. He stated that at trial it would be necessary to determine
the proper volume of air to be supplied to the auxiliary fans and that
this determination would be dictated by his conclusion as to which
proposal was safer. The judge added, "the ... language of the Zeigler
case should not be allowed to stand in the way of mine safety." 6
FMSHRC 1607, 1610 (July 1984)(ALJ). Carbon County's second petition
for interlocutory review followed. 4/

3/ In Zeigler, which arose under the 1969 Coal Act, 30 U.S.C. 801
et seq. (1976)(amended 1977), the court construed section 303(o) of
the Act. This provision was retained without change as section 303(o)
of the 1977 Mine Act.
4/ Carbon County was granted a suspension of the proceedings before
the judge pending our decision in this matter. 5/

--- Page 6 ---

                I.

As noted, the institution of a ventilation and methane and
dust control plan through the process of Secretarial approval and
operator adoption is mandated by section 303(o) of the Mine Act,
30 U.S.C. § 863(o), and by mandatory safety standard 30 C.F.R.
§ 75.316, which standard essentially reiterates section 303(o).
Both the Act and the mandatory safety standard state that the
purpose of the approval-adoption process is to provide a plan whose
provisions are "suitable to the conditions and the mining system of
the coal mine." Once the plan is approved and adopted, the particular
provisions of the plan are enforceable at the mine as though they are
mandatory safety standards. Zeigler Coal Co., 536 F.2d at 409. 6/

The scheme for the approval and adoption of a mine specific
plan supplements the nationally applicable mandatory safety and
health rulemaking procedures. The bilateral approval-adoption
process inherent in developing mine specific plans results from
consultation and negotiation between MSHA and only the specifically
affected operator, whereas the nationally applicable standards are
the product of notice and comment rulemaking pursuant to section 101
of the Mine Act. 30 U.S.C. § 811. Further, the scope of a mine
specific plan is restricted exclusively to the mine in which the plan
will be implemented, whereas a mandatory safety or health standard
applies across-the-board to all mines.

The individual nature of a mine specific plan is emphasized in
the legislative history of the Mine Act. The Senate Committee on
Human Resources, reporting on the bill which, as amended, became the
Mine Act, stated:

          [I]n addition to mandatory standards applicable
 to all operators, operators are also subject to the
 requirement set out in the various mine by mine compliance
 plans required by statute or regulation. The requirements
 of these plans are enforceable as if they were mandatory
 standards. Such individually tailored plans, with a nucleus
 of commonly accepted practices, are the best method of
 regulating such complex and potentially multifaceted problems
 as ventilation, roof control and the like.

5/ Safety requirements tailored to particular conditions at a specific
mine are not restricted to ventilation and methane and dust control
plans. Where safety may be enhanced by taking into account particular
local conditions the Mine Act provides for further mine specific

--- Page 7 ---

plans. For example, 30 C.F.R. § 75.200, which reiterates section
302(a) of the Mine Act, 30 U.S.C. § 862(a), requires the Secretary to
approve and the operator to adopt "[a] roof control plan ... suitable
to the roof conditions and mining system of each coal mine."

--- Page 8 ---

~1371
S. Rep. No. 181, 95th Cong., 1st Sess. 25 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977 at 613 (1978).

The requirement that the Secretary approve an operator's mine

ventilation plan does not mean that an operator has no option but
to acquiesce to the Secretary's desires regarding the contents of the
plan. Legitimate disagreements as to the proper course of action are
bound to occur. In attempting to resolve such differences, the
Secretary and an operator must negotiate in good faith and for a
reasonable period concerning a disputed provision. Where such good
faith negotiation has taken place, and the operator and the Secretary
remain at odds over a plan provision, review of the dispute may be
obtained by the operator's refusal to adopt the disputed provision,
thus triggering litigation before the Commission. Penn Allegh Coal
Co., 3 FMSHRC 2767, 2773 (December 1981). Carbon County proceeded
accordingly in this case. The company negotiated in good faith and
for a reasonable period concerning the volume of air to be supplied
the auxiliary fans. Carbon County's refusal to acquiesce in the
Secretary's demand that the plan contain a free discharge capacity
provision led to this civil penalty proceeding. The approval-adoption
process protects operators and miners by assuring that particular
conditions at a mine are addressed by individualized safety
requirements. The court in Zeigler, in a discussion we have found
"persuasive and compelling," Carbon County, 6 FMSHRC
at 1127, described the limits the statute places upon the Secretary
regarding the restricted subject matter of a ventilation and methane
and dust control plan:

         Section 303(o) specifically states that the plan is
to be "suitable to the conditions and the mining system
of the coal mine...." The context of the plan requirement,
amidst the other provisions of § 303, which set forth
fairly specific standards pertaining to mine ventilation,
further suggests that the plan idea was conceived for a
quite narrow and specific purpose. It was not to be used
to impose general requirements of a variety well-suited to
all or nearly all coal mines, but rather to assure that
there is a comprehensive scheme for realization of the
statutory goals in the particular instance of each mine.

           *       *      *

        [I]nsofar as those plans are limited to conditions

--- Page 9 ---

and requirements made necessary by peculiar circumstances
of individual mines, they will not infringe on subject
matter which could have been readily dealt with in
mandatory standards of universal application.

536 F.2d at 407.

--- Page 10 ---

~1372
The controlling issue is whether MSHA's insistence upon
inclusion of the free discharge capacity provision in Carbon County's
plan contravened these principles. Carbon County, 6 FMSHRC at 1127.
The administrative law judge insisted on avoiding this determination.
We therefore look to the record to determine whether the undisputed
material facts establish that the free discharge capacity provision
espoused by the Secretary was required because of particular mine
specific conditions at the Carbon No. 1 Mine.

                 II.

The Carbon No. 1 Mine is ventilated by a main mine fan. To

assist in the ventilation of the mining sections, 125-horsepower
auxiliary exhaust fans are used. An auxiliary exhaust fan ventilates
up to 5 working faces. The auxiliary fan is located outby the faces
in return air. A fiberglass tube is attached to the fan. This tube
connects with up to 5 tubes which extend outby from the faces. In
all, less than 500 feet of tubing is attached to the fan. The fan
pulls the intake air at the face through the tubing and exhausts it
into the return air. In this way the dust which results from the
mining process and the gases which are liberated in the face area are
removed from the mining section.

It is a principle of physics that in order to work effectively

in removing dust and gas from the section the exhaust fan must be
supplied with more air than the fan is actually producing. If the
fan is supplied with less air than it is producing, the fan will draw
air from another source to compensate for the deficiency. That other
source may be air which has already passed through the fan into the
return. This phenomenon is called "recirculation." The result of
recirculation may be that dust and gases, once exhausted through the
fan, are returned to the face area.

In 1971, MESA, MSHA's predecessor, issued national guidelines to

all of its districts concerning provisions which should be included
in ventilation plans. The guideline pertaining to exhaust fans
requires that "[f]ans operating exhausting shall be installed in the
return air current ... and the volume of ... intake air current
available at the entrance of the place ... to be ventilated with
exhaust fans shall be greater than the free discharge capacity of the
fan." Exhibit 3 at 9. The guideline is intended to prevent
recirculation.

In 1977, MSHA District 9 issued its own guidelines "to assist
[operators] in formulating an acceptable ventilation ... plan."
Exhibit 6. 6/ The guidelines were drafted by District 9 personnel

--- Page 11 ---

and for the

6/ MSHA divides its division of Coal Mine Health and Safety into
10 administrative districts. District 9 encompasses the Rocky
Mountains area and includes the coal producing states of North Dakota,
Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Washington and
Alaska. There are approximately 48 underground coal mines operating
in District 9, including the Carbon No. 1 Mine.

--- Page 12 ---

~1373
most part reiterated the national guidelines. Differences with
the national guidelines were the result of mining conditions unique
to District 9. The 1977 District 9 guideline with respect to the
volume of air to be supplied to exhaust fans was identical to the
national guideline. Exhibit 6 at 10. In 1981 District 9 revised
its guideline. However, the provision relating to the air supplied
to exhaust fans and thus to the prevention of recirculation remained
essentially the same. It states:

          Fans operated exhausting shall be installed in
 the return air current from the place to be ventilated
  by the fan, and the volume of intake air delivered
 to the fan prior to the fan being started shall be
 greater than the free discharge capacity of the fan.

Exhibit 7 at 4.

In the discovery phase of this litigation, Carbon County deposed

the MSHA officials who played a role in rejecting Carbon County's
installed capacity proposal and who insisted upon the free discharge
capacity provision. The depositions establish that Carbon County's
revised ventilation plan was reviewed by Mining Engineer John Widows,
by Ventilation Specialist Ival VanHorne, and by Supervisory Mining
Engineer Bill Knepp. The plan was given then to Engineering
Coordinator Harold Dolan and Dolan forwarded the plan to District
Manager John Barton. It was District Manager Barton who ultimately
rejected Carbon County's plan on behalf of MSHA and the Secretary of
Labor.

We find that the record conclusively establishes that MSHA's

insistence upon the free discharge capacity provision and MSHA's
rejection of Carbon County's proposal to provide a volume of air
equal to the installed capacity of the fans was the result of a rote
application of the District 9 free discharge capacity guideline and
was not based upon particular conditions at the Carbon No. 1 Mine.
Ventilation Specialist VanHorne stated that there was "no leeway"
with regard to requiring the free discharge capacity provision in a
ventilation and methane and dust control plan and that he considered
no factors other than the guideline when reviewing the proposed plan.
VanHorne dep. 18-19, 85. Engineering Coordinator Dolan said that he
knew of no plan in District 9 which did not have the free discharge
capacity requirement and that he would not recommend approval of a
plan unless it contained that provision. Dolan dep. at 63-64. Dolan
termed the guideline "a bottom line requirement" and stated that
although one plan had "gotten through" without it, that plan later

--- Page 13 ---

was rescinded. Dolan dep. at 106.

District Manager Barton stated that he was free to disregard
the guideline "the guidelines don't dictate to me" -- and that the
quantity of air required in a ventilation and methane and dust
control plan was determined by "our observation and information
about the specific mining conditions at the mine." Barton further
stated, however, "I view the principle that you must provide at least
an amount of air equal to the

--- Page 14 ---

~1374
free discharge capacity as necessary. We may ask for more. We will
never permit less." Barton dep. at 17-18-19. When questioned about
the circumstances at Carbon County's mine which gave rise to MSHA's
insistence upon the free discharge capacity provision, Barton replied,
"In my opinion, that was the minimum acceptable level that we could
give. That was the most liberal allowance ... that I would make."
He was asked whether free discharge capacity was the minimum volume
of air that he would allow at all mines, and he replied that it was.
Barton dep. at 58. "Particular circumstances" which lead MSHA to
insist upon the free discharge capacity provision at the Carbon No. 1
mine were not detailed by Barton.

A recurring theme in the statements of VanHorne, Knepp, Dolan and

Barton was that District 9 insisted upon the guideline because of the
fear that the tubing attached to the fan might break, or be closed
off, or be disconnected, and that in such case the volume of air at
installed capacity would not be adequate to prevent recirculation.
Despite these concerns, there is no indication in the depositions and
the exhibits that any specific breaks, folds, or disconnects in the
tubing at the Carbon No. 1 Mine were considered. Nor does the record
indicate that Carbon County's proposals for maintaining the tubing to
reduce the chances for such occurrences was given fair consideration.
Dolan stated that he did not know what the general frequency of tube
breaks was, that he did not know if the fiberglass tubing used by
Carbon County was more likely to break than other types of tubing,
and that he had no specific knowledge about the tubing in Carbon
County's mine or the frequency with which it might break. Dolan dep.
at 96. Barton stated that miners often damaged ventilation controls
like tubing, but he also stated that he did not know if the fiberglass
tubing used by Carbon County was frequently damaged because, "I am not
present in the mine to see what is occurring every day, nor do I
review all the citations that come through the office." Barton dep.
at 36. Also, although Barton indicated that in general he believed
miners could not be relied upon to maintain the tubing, he stated that
he had no knowledge of Carbon County's practices with respect to
broken tubing or its practices with respect to the inspection of
tubing at the mine. Barton dep. at 28-29, 32, 46.

Another basis offered by the Secretary for rejecting the
installed capacity proposal and for insisting upon the free discharge
capacity provision consisted of vague references to prior instances
of recirculation of air at the mine. But the cause or causes for the
recirculation and the particular circumstances surrounding these
asserted instances of recirculation were not specified. Dolan, MSHA's

--- Page 15 ---

engineering coordinator, stated that he did not know if the instances
of recirculation in the past had anything to do with the quantity of
air reaching the auxiliary fans. Dolan dep. at 48, 112. Barton also
stated that he had no knowledge of the specifics of recirculation
problems at the mine and did not know if any of the mine's
recirculation problems related to the amount of air

--- Page 16 ---

~1375
provided to auxiliary fans. Barton dep. at 31. When asked whether
Carbon County's installed capacity proposal was rejected because the
mine had a history of recirculation, Barton did not reply
specifically. Rather, he stated, "it was rejected because it did not
meet the minimum requirements for a good ventilation system to protect
the lives of miners in the mine." Barton dep. at 26.

It bears emphasis that the proper focus at this stage of the

proceeding is not upon the merits of the proposals--whether the
disputed provision is in fact necessary to prevent recirculation at
the Carbon No. 1 Mine and whether the disputed provision is one which
must be applied to all mines if recirculation is to be prevented--but
rather upon the basis for MSHA's insistence that the free discharge
capacity provision is required at the subject mine. Because we
conclude that the uncontroverted material facts establish that MSHA's
decision to impose the free discharge capacity provision was not based
upon particular circumstances at the Carbon No. 1 Mine, but rather was
imposed as a general rule applicable to all mines, we hold, for the
reasons stated in Zeigler and enunciated here, that MSHA's insistence
upon the free discharge capacity provision, MSHA's revocation of
Carbon County's ventilation plan, and MSHA's subsequent citation of
Carbon County for a violation of section 75.316 were not in accord
with applicable Mine Act procedure.

This does not mean that the free discharge capacity provision

may not be applied at the Carbon No. 1 Mine. If negotiations on the
ventilation plan resume, MSHA may determine, and may be able to
establish, that particular conditions at the mine warrant the
inclusion of the free discharge capacity provision in the ventilation
plan. Also, if MSHA believes the free discharge capacity provision to
be of universal application, the Secretary may proceed to rulemaking
under section 101 of the Mine Act and promulgate the free discharge
capacity provision as a nationally applicable mandatory safety
standard.

Accordingly, the order of the administrative law judge denying

Carbon County's motion for summary decision is vacated, as is the
citation alleging a violation of section 75.316. Summary decision is
entered on behalf of Carbon County and the proceeding is dismissed. 7/

                 Richard V. Backley, Acting Chairman

--- Page 17 ---

                James A. Lastowka, Commissioner

7/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
power of the Commission.

--- Page 18 ---

~1376
Commissioner Nelson, concurring:

While I am in complete agreement with my colleagues that Carbon

County is entitled to summary decision, I am persuaded to reach that
result as much by consideration of the practical aspects of this case
as I am by the legal analysis displayed in the opinion. I find the
procedural track record of this case to be noteworthy. More than
three and one-half years have elapsed since the Secretary of Labor
initiated this action by filing with the Commission a petition for
assessment of a civil penalty, yet this proceeding has not proceeded
beyond the discovery stage. This is the second time that this matter
has come before us on interlocutory review and, despite our clear
instructions to the trial judge in our remand order following the
first interlocutory review, no progress has been made in bringing this
case to its conclusion. Finally, the administrative law judge to whom
the case was assigned originally, and who twice heard Carbon County's
motion for summary decision, has retired. Were we to conclude that
further proceedings in this matter are required, a remand necessarily
would be to a new judge, one unfamiliar with the extensive record.
Given the record evidence in favor of Carbon County and given our
previous adoption of the D.C. Circuit's decision in Zeigler Coal Co.
v. Kleppe, 536 F.2d 398 (1976), I believe that it is time to bring
this litigation to a merciful end.

Accordingly, for the reasons appearing in the opinion and for the
reasons set forth above, I concur in the awarding of summary decision
to Carbon County and in the dismissal of this proceeding.

                L. Clair Nelson, Commissioner

--- Page 19 ---

~1377
Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Robert E. Vagley, Esq.
Preston, Thorgrimson, Ellis & Holman
1735 New York Ave., N.W., Suite 500
Washington, D.C. 20006

Michael F. Duffy, Esq.
American Mining Congress
1920 N Street, N.W., Suite 300
Washington, D.C. 20036