2.         Analysis - The Section 103(k) Order was Properly Issued Because the Secretary Proved by a Preponderance of Evidence that an “Accident” Occurred

 

            In Alcoa, the Commission concluded that whether a specific event is similar in nature and severity to a mine explosion, ignition, fire, or inundation must be determined on a case-by-case basis. 15 FMSHRC at 1826. The Commission rejected the Secretary’s argument that an unplanned and uncontrolled release of mercury, including a gradual release that creates a long-term hazard, is an “accident” under the Mine Act, because the evidentiary record developed was insufficient to establish that the hazards associated with the conditions in the alumina hydrate production facility were similar in nature or presented the same potential for injury as a mine explosion, ignition, fire or inundation. 15 FMSHRC at 1827-28.

            That is not the case here. The Secretary’s expert (Urosek) specifically related the hazards associated with the elevated CO buildup -- an event similar to, but not as extensive as, an inundation of gas -- to a smoldering gob fire (an accident) and a potential methane ignition or explosion (another accident).

            It cannot be gainsaid that successful analysis of a potential gob fire requires advanced knowledge of the causes, characteristics, and management of mine fires. In this regard, I give Urosek’s expert opinion greater weight than Derick’s based on his more extensive, specialized experience with mine fires, ventilation issues, explosions and related mine emergencies. Based on Urosek’s superior credentials and empirical research through direct observation and experience, I find that his expert opinion that there is a smoldering gob fire has a more reliable scientific basis than Derick’s expert opinion to the contrary. Thus, where Derick’s expert opinion conflicts with Urosek’s expert opinion, I give more weight to Urosek’s opinion based on his superior qualifications and experience. See Asarco Mining Company, 15 FMSHRC 1303, 1307 (July 1993).

            Pinnacle’s June 21 plan submission, endorsed by Derick, predicted that “[a] lengthy continuation of applying inert gases into the temporary sealed area would most likely result in continued levels of carbon monoxide and hydrogen.” Tr. 339; Jt. Ex. 1, p. 10, para. (e). Sample results through July 10, however, belie this prediction, since the levels of oxygen and CO consistently decreased and began to stabilize. G. Exs. 11 and 12.

            On direct examination, Derick testified that based on sampling correlations between methane and hydrogen levels and methane and CO levels, and the absence of physical evidence, he concluded that there was no heating or actual fire occurring at the Pinnacle Mine. Tr. 245. On cross examination, however, Derick conceded that he could not positively rule out the possibility of a gob heating at the Pinnacle Mine. Tr. 340, 344.

            By contrast, Urosek positively ruled out any source for the CO monoxide levels other than a gob heating. Tr. 91-93, 139-140, 144-45, 168-69, 170-71, 216-17, 169. Moreover, Urosek testified that Pinnacle’s assertion regarding the absence of higher order fire gases such as acetylene and ethylene did not support the conclusion that there was no gob fire. He explained that these gases do not form at the beginning of a fire, and once they do begin to form they do so at concentrations in the parts per billion, an amount that is not detectable with current technology. Tr. 119-120.

            More importantly, Urosek considered and rejected Pinnacle’s various explanations for the elevated CO readings around crosscut 61 of the 9F longwall panel. He rejected the notion that such levels were ambient to that particular location, but nowhere else in the mine. During his extensive experiences with mine fires and ventilation issues, Urosek had never heard of elevated CO levels naturally occurring in a particular area of a mine, except when associated with a heating. Tr. 145. Nor was he aware of any situation in which differences in the composition of coal at one particular area of a mine created variations of ambient CO levels. Tr. 170-171. He also rejected Pinnacle’s suggestion that oxidation of old wooden cribs could have caused the elevated CO levels because in his experience, wood oxidation from old cribbing results in a minimal rise in CO levels, up to 1 to 2 ppm, far less than the CO levels found in the 9F longwall area. Tr. 207-08; 211-12. Urosek also rejected Pinnacle’s suggestion that the CO was coming from a natural source based on a supposed correlation between CO and methane levels. Contrary to Derick’s assertion that methane and CO correlate to one another, G. Exh. 13 shows that the level of CO to methane fell sharply after the area was sealed on June 11. See G. Ex. 13, depicting the ratios of CO divided by methane and CO divided by hydrogen. As Urosek put it, “the methane and carbon monoxide don’t have that same track. So it can’t be coming from the same location or it would track the same. So we don’t agree with D,” i.e., Jt. Ex. 1, p. 10, para. (d) of Pinnacle’s June 21 plan submission. Tr. 129.

            Based on Urosek’s credible testimony grounded in past experience with gob fires, I find that the Secretary proved by a preponderance of the evidence that its was more likely than not that the May 19 event, i.e., detection of 22 ppm CO measured between the No. 2 and No. 3 entries in the 9E entries of the longwall gob area, was the result of a smoldering gob fire in an inaccessible area of the collapsed gob. As Urosek explained, this type of fire in a longwall gob poses a difficult dilemma for MSHA: How do you extinguish or fight a fire that you cannot see? Tr. 73-74.

           Although the record reflects that CO may rise above ambient levels for a variety of reasons besides a gob heating, including use of diesel equipment, heat-generating friction along a belt line, oxidation of carbonaceous materials like wood, or the combustion of coal during a mine fire (Tr. 145-46, 205, 310-11), Urosek persuasively rejected these alternative explanations as proffered by Contestant, as set forth above. Rather, in Urosek’s expert opinion, the elevated CO, which initially caused the operator to withdraw miners from the longwall and then shut down the entire mine, could only be due to a fire or gob heating (Tr. 91-93, 139-140, 144-46; 168-69, 216-17). Urosek’s expert opinion was based on extensive experience with past gob fires at other mines, including the Pinnacle Mine, and hundreds of bag samples that consistently indicated elevated carbon monoxide localized around the suspected area of gob heating, while other areas of the 9F longwall panel showed no detectable amounts of carbon monoxide. G. Ex. 9; Tr. 91-93; 139-140; 216-17. Urosek testified that the suspected gob fire could have begun as either a small flame or an area of “very, very hot” smoldering coal. Tr. 67-68.

            Furthermore, unlike the Secretary’s witnesses and evidence in Alcoa, Urosek specifically related the hazards associated with 22 ppm CO, an event similar to an inundation of gas, to a smoldering gob fire and a potential methane ignition or explosion in this gassy mine. Urosek testified that a smoldering gob fire poses a risk of a methane explosion, since a heating that produces CO can ignite methane. Tr. 74. Furthermore, Urosek testified that methane in the explosive range of 5 to 15% existed somewhere in the 9F longwall gob since the gob is located between the degasification well, where samples showed 50 percent methane, and the 9E entries, which range from 0 to 2 percent methane under normal conditions. Tr. 75, 360. The following testimony is instructive on this point:

 

     Q. Does the gob heating at Pinnacle pose any risk of injury to miners?

 

A. Yes, it does. Because, just as an example, I stated at a similar mine, the heating -- any heating that's producing carbon monoxide can be of a temperature such that it can ignite methane. And as we discussed earlier, for example, in the number 2 entry, located between crosscuts 56 back to 65, the oxygen levels there are greater than 20. The methane levels in that particular entry are probably less than 2 percent. However, at the degasification borehole, which is only a few feet, relatively speaking, into the gob, we have methane concentrations as high as 50 percent.

Somewhere in between where that degasification hole would locate and the gob area, and where we have the fresh air, is an explosive mixture. The concern is that's the same area where this heating could be located.

 

Q. What would the risk to miners be? I understand what you're saying about the potential for an explosion. What would the risk of entry to miners be?

 

A. Well, that the heating would be hot enough that the methane levels could come in contact with the heated coals or the flame from a gas, possible gas burning, that could ignite that and propagate into a much larger explosion.

 

Furthermore, on rebuttal, Urosek testified as follows:

 

Q. Final question. Mr. Nelson testified --well, he was asked the question of whether or not -- if MSHA's theory that a -- or conclusion that a heating is occurring is correct, whether or not it risked entry to miners. Let me ask you this. Where would you expect explosive mixtures of methane to be on the F9 panel?

 

A. On the F9 panel, again, as we discussed, the ventilation occurs across the longwall face, coming from the headgate entries to the tailgate entries. And it goes along the tailgate entries to the back bleeder entries. In those entries that are open we know we have oxygen levels of 20 percent and methane levels less than 2 percent. In the gob itself we know from the degas where we're taking samples, we have levels in excess of 40 percent, as we just discussed. So in between there's a fringe. And the only open area, the major open area or airflow path in between is very close to the number 3 entry. That's also very close to the area where we're concerned that there is a heating. So the area of the explosive mixture is in the same proximity of the area where we're concerned there's a heating.

 

Q. All right. And just to be clear, if the explosive mixture of methane comes into contact with the area of heating, what would the result be?

 

      A. There would be an explosion.

 

          Based on this testimony, I find that the explosion hazard is real and not speculative, as samples repeatedly indicated explosive levels of methane in the area of suspected heating. G. Exs. 5 and 8. In sum, I conclude that the Secretary proved by a preponderance of the evidence that it was more likely than not that the May 19 event, i.e., detection of 22 ppm CO measured between the No. 2 and No. 3 entries in the 9E entries of the longwall gob area, was the result of a smoldering gob fire in an inaccessible area of the collapsed gob. I further find, unlike the evidentiary record in Alcoa, that the Secretary’s expert specifically related the hazards associated with the elevated CO buildup, an event similar to an inundation of gas, to a smoldering gob fire and a potential methane ignition or explosion. In these circumstances, I find that the Secretary has demonstrated by a preponderance of the evidence that an accident has occurred and that the Section 103(k) Order was appropriate.

 

          B.       Was MSHA’s refusal to modify the 103(k) order to permit re-entry of the mine and re-ventilation of the longwall unreasonable or arbitrary and capricious?

                                                              

                        1.         Position of the Parties

 

                                    a.         The Contestant’s Position

            The Contestant argues that the Secretary abused her discretion by denying its plan to re-ventilate the longwall. The Contestant apparently concedes that under Commission precedent the propriety of the continuance of a 103(k) order is reviewed under an abuse of discretion standard. See, e.g., Emerald Coal Resources, 30 FMSHRC 122, n.1 (Jan. 2008) (ALJ Zielinski)(order denying operator’s motion for summary judgment challenging 103(k) order based on argument that unplanned roof fall was not an “accident”), citing Eastern Associated Coal Corp., 2 FMSHRC 2467; see also, Emerald Coal Resources LP, 29 FMSHRC 956, 966 (Dec. 2007). Contestant further notes that the primary determination in adjudicating a 103(k) order is whether the inspector acted “reasonably” in issuing or modifying the order, or establishing conditions precedent to termination of the order. See Eastern, 2 FMSHRC at 2472; see also, Southern Ohio Coal Co., 13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras )(holding that the issuance of the 103(k) order was “not an unreasonable or arbitrary abuse of [the inspector’s] authority or discretion”).

            The Contestant notes that the abuse of discretion standard requires an agency to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Put differently, the agency must cogently explain why it has exercised discretion in a given manner, and that explanation must be sufficient for a court to conclude that the agency’s action was the product of reasoned decision making. Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156 (1962) (contradictory positions and inconsistency by the agency indicate an abuse of discretion); see also Alpharma Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006). Moreover, the decision must describe the standard under which the conclusion was reached. See, e.g., American Lung Assoc. v. EPA, 134 F.3d 388, 392 (D.C. Cir. 1998).

            Contestant advances three primary contentions in support of its argument that the Secretary abused her discretion: 1) the Secretary acted unreasonably when denying re-ventilation and reopening; 2) the origin of the CO was not a reasonable basis for rejection of Pinnacle’s plan; and 3) the rejection is unreasonable because the plan was a conservative and cautious approach.

Initially, Pinnacle reiterates that there is no combustion occurring on the longwall gob. Moreover, even assuming there was doubt when the 103(k) Order issued, the data gathered as a result of comprehensive sampling and inertion efforts since then indicates that no combustion is occurring. Pinnacle notes that the initial levels of CO were very low and remained low, the longwall gob has been inert for over a month, and no heat, smoke, or fire gases, such as ethylene or acetylene, were detected. Tr. 227-28, 230, 232-33, 235-36; Stip. 22; G. Exs. 5 and 9. Accordingly, Pinnacle argues that it is appropriate to approve the June 21 plan, as subsequently modified, to permit re-ventilation of the longwall, evaluation of its conditions, and resumption of mining, and the Secretary’s continued insistence that the longwall remain sealed is unreasonable and an abuse of discretion.

Pinnacle emphasizes the limited nature of the multi-step process requested: removal of the seals and re-ventilation of the longwall; evaluation of the condition on the longwall to determine if it is safe to operate; and resumption of longwall operations with continued monitoring of conditions. Further, Pinnacle highlights several alleged fundamental flaws in MSHA’s rejection of its plan.

First, although MSHA’s denial is based in part on the uncertain origin of the CO (see Jt. Ex. 2), Pinnacle argues that the primary flaw in MSHA’s rejection is the lack of combustion and failure to explain how a heating could have started. Contestant emphasizes that there was no event in 2011 that would have ignited coal. Tr. 191, 260. Urosek failed to explain how a heating could have started, in the absence of an event or spontaneous combustion. Contestant notes that spontaneous combustion was ruled out (Tr. 302-03), and there was no event, like lightning, cutting or welding that could have triggered a heating. Since the coal at Pinnacle was not prone to spontaneous combustion (Tr. 302-03), an event must occur that would result in ignition of coal or methane, but no such event occurred, says Contestant. Tr. 308. Contestant also faults MSHA’s reliance on the 2003 incident because that event was triggered by a lightning strike, as demonstrated by pressure changes documented on fan charts. Tr. 189-90, 260; R. Ex. 2. Pinnacle argues that the lightning strike triggered an explosion in which methane continued to burn, much like a pilot light could ignite methane that is brought into an area by ventilation changes. R. Ex. 2. Pinnacle notes that such scenario was eliminated by Urosek. Tr. 168.

Second, Pinnacle reiterates its arguments rejected above, that MSHA did not utilize basic mathematical formulas and technology that would demonstrate that no fire occurred or is occurring. See Tr. 199-203, 330-31, 332, 354, 361-62. Contestant argues that Urosek did not use all tools available, including a heat sensing device available to MSHA to determine the status of the gob. Tr. 361-62. Although Urosek opined that the infrared heat gun could not be placed close enough to the gob, Contestant notes that Urosek did know the gun’s range or how close to the gob a person could travel. Tr. 354, 361-62. In addition, although Urosek did not utilize standard formulas such as the Litton and hydrocarbon ratios to determine a heating because inertion was occurring, Contestant faults Urosek for failing to evaluate such formulas before the inertion process started. Tr. 199-201. Contestant claims that the results of the Litton formula that were calculated before inertion indicated that no fire was occurring. Tr. 201, 331. Similarly, Contestant faults Urosek for failing to apply the hydrocarbon ratio, which Contestant claims would show that no heat was being produced. Tr. 201, 332. Contestant argues that Urosek unreasonably ignored these calculation and detection tools, which would eliminate heating as a cause, and therefore MSHA did not act reasonably in rejecting its plan. While Contestant acknowledges that the Secretary’s position has a certain superficial plausibility, i.e., there is some CO so there must be a heating, it argues that her June 30 rejection letter, when analyzed point-by-point, fails to show that she acted reasonably by gathering, evaluating and considering all the evidence in a consistent, logical fashion.

Pinnacle also argues that the Secretary relied on inappropriate comparisons from samples incorrectly collected to establish an ambient level of CO. Although MSHA found that ambient levels should be 2 ppm (Jt. Ex. 2), that conclusion is based on an alleged invalid comparison of sampling from a completed longwall panel, which was mined out for several months and located in a different portion of the mine where coal composition was different. Tr. 252-53, 272. In addition, samples from the 9F borehole showed CO concentrations significantly higher (11 ppm) than in the mined out panel (Tr. 267-68; G. Ex. 9), which allegedly indicates that the 9F panel is different than the previously mined panel. See Tr. 253. Further, Pinnacles alleges that the samples used for comparison were not gathered properly because they were taken too far from the longwell gob to be comparable to those taken at the 9F gob. Tr. 198-99.

Pinnacle also argues that samples taken at the longwall face are suspect because they were taken in a well-ventilated area. Tr. 179-81; G. Ex. 6. Similarly, Pinnacle argues that samples taken on the headgate side of the 9F panel to establish a low ambient are inappropriate because of higher levels of ventilation in that area. Tr. 255, 322-23. Thus, MSHA compared the ambient in well-ventilated areas to an area that was not well ventilated, the edge of the longwall gob (Tr. 206), which Contestant argues is illogical and unreasonable.

Contestant also faults MSHA’s comparison of CO levels at a natural gas well in unmined coal near the mine (see Jt. Ex. 2), because MSHA failed to determine the depth and extent of casing of the gas well, or to establish whether the sample was actually taken from the well itself. Tr. 172-73, 256. Contestant argues that there is no basis for comparison because the casing would prevent liberation of gas from Pinnacle’s seam into the well, yet MSHA relied upon such sample.  Contestant also faults MSHA’s failure to analyze what gases might be released from coal seams above the seam being mined. Tr. 178. Pinnacle notes that two other coal seams are present above the Pocahontas No. 3 seam. Tr. 312-13; Jt. Ex. 1A. Pinnacle argues that the CO, like naturally released hydrogen was part of the upper gob gases that were transferred to the area of the 61 and 62 crosscuts because of the open conduit between the 9F borehole and the tailgate entries. Tr. 329. In addition, Contestant argues that the strong association between the CO, hydrogen, and methane levels indicate that the CO is a product of natural liberation, not combustion. Tr. 257-58, 274, 312. Contestant argues that this association suggests that the CO is liberated at the same time as methane as part of the normal processes in the gob. Tr. 318-19. Similarly, Contestant notes that the CO levels correspond with the hydrogen levels, which Urosek conceded were part of normal processes in the gob. Tr. 319; R. Ex. 3. Contestant contends that if the CO was from a heating and the hydrogen was not, then the relationship between the gases should change as the heating was suppressed through introduction of inert gases, but the relationship did not change. Tr. 324-25, 327-28; R. Ex. 3. Contestant argues that the ratios are not consistent with a fire, which typically produces more CO than hydrogen, which is not the case here. Tr. 196-97. In addition, Derick testified that if a heating was expected, then CO levels would rise when the seals were installed and ventilation to the gob ceased, but CO levels did not rise. Tr. 318.

Finally, Contestant argues that MSHA’s rejection is unreasonable because Pinnacle’s plan was conservative and cautious. Although MSHA stated that the plan did not allow enough time for stabilization following unsealing and re-ventilation (see Jt. Ex. 2), Pinnacle notes that the plan allowed a minimum of 24 hours (see Jt. Ex. 1), which typically exceeds the time necessary for stabilization after a major ventilation change. Tr. 248, 265. Moreover, the plan specifically provided for monitoring during that period and Pinnacle could not move forward unless sampling results were acceptable. Tr. 266-67. While MSHA disagreed with plan language that mining could resume once re-ventilation occurred “pending no significant negative changes” (see Jt. Ex. 2), Pinnacle notes that MSHA would be monitoring the re-ventilation process, and this plan language should not compel rejection, particularly since a myriad of mandatory standards contain similarly broad language. Although MSHA’s rejection also noted that oxygen concentrations were not below 4% at all sampling locations “for any significant length of time” (see Jt. Ex. 2), by the hearing date, the gob had been “inert,” below 10% oxygen for 30 days and below 4% oxygen for several weeks. G. Ex. 9. Similarly, although MSHA asserted that CO concentrations had not “stabilized” (see Jt. Ex. 2), Pinnacle argues that as long as nitrogen and carbon dioxide continued to be injected and methane continued to be liberated in the gob (see Tr. 268-69), it could be expected that the concentrations of other gases, including CO, would continue to change as the oxygen levels changed. Tr. 167, 268-69. Accordingly, Pinnacle claims that MSHA’s position is disingenuous since the gases that prevented stability were used to inert the heating that MSHA suspected.

In sum, Contestant argues that MSHA’s rejection was unreasonable because it was not based on reasonable conclusions and the Secretary did not utilize readily available tools to analyze the gob as she was required to do. Rather, Contestant claims that the plan, as modified, should have been approved so the multi-step re-entry process could begin. As Nelson opined after questioning from the bench, upon re-ventilation with the monitoring protections that Pinnacle had in place, he was confident that there would be no event that would cause injury or death to miners even if a heating source was present. Tr. 262-63. Pinnacle notes that approval of the plan would have permitted Pinnacle to take the first step in a process, with no guarantee that further steps could be taken. MSHA’s refusal to approve the beginning of a process, which it could halt at any time, is alleged to be unreasonable. Absent vacation of the 103(k) Order, Pinnacle requests an Order ruling that MSHA should have approved the plan submitted on June 21, as modified by subsequent submissions.

 

b.        The Secretary’s Position

The Secretary argues that MSHA acted reasonably when it denied Pinnacle’s plan to re-ventilate the 9F panel and allow mining operations to resume when levels of CO were ten times ambient levels. The Secretary emphasizes that the Mine Act grants her “broad discretion” to control accident situations through control orders. See Senate Report No. 95-181, at 29 (1977) reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978) (“The unpredictability of accidents in mines and uncertainty as to the circumstances surrounding them requires that the Secretary or his authorized representative be permitted to exercise broad discretion in order to protect the life or to insure the safety of any person.”). By its plain terms, Section 103(k) gives the Secretary the power to accept or reject a plan submitted by the operator to resume mining, as the Secretary “deems appropriate” (see 30 U.S.C. § 813(k)), and the Ninth Circuit has described MSHA’s authority to manage accidents pursuant to Section 103(k) as one of “plenary power” and “complete control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9^th Cir. 1983).

Given MSHA’s broad discretion to control inherently unpredictable and uncertain mine accident situations, the Secretary argues that MSHA’s denial of an operator’s request to modify a control order must be subject to a highly deferential “arbitrary and capricious” standard of review. See Emerald Coal, 29 FMSHRC 956, 965-66 (Dec. 2007) (holding that the arbitrary and capricious standard applies during the less exigent circumstances of a mine plan dispute). The Secretary notes that the arbitrary and capricious standard “involves a review of the record to determine whether the Secretary properly exercised her discretion and judgment.” Id. at 966. The Secretary cites the Third Circuit’s view that MSHA action will be sustained if MSHA “considered the relevant factors brought to its attention by interested parties” and “made a reasoned choice among the various alternatives presented.” National Industrial Sand Association v. Marshall, 601 F.2d 689, 699-700 (3^rd Cir. 1979).

Under Commission precedent, the Secretary argues that absent bad faith or arbitrary action, her decision must upheld. Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). Put differently, the Secretary is not required to demonstrate that an operator’s plan is unreasonable. Id. at 748. Rather, the appropriate inquiry is whether MSHA acted arbitrarily and capriciously when exercising its broad discretion to manage an unpredictable and uncertain accident scenario, not whether Pinnacle’s action plan was “reasonable.”

Applying these principles to the record evidence, the Secretary argues that MSHA acted reasonably when denying Pinnacle’s plan to re-ventilate the longwall area. Initially, the Secretary claims that Pinnacle does not contest the fact that the Secretary acted in good faith throughout this event. Tr. 40. The Secretary further argues that Pinnacle cannot claim that MSHA failed to consider the relevant factors that Pinnacle brought to its attention, given the June 23 meeting in which a full discussion of the proposed plan was conducted. See Jt. Ex. 2. When Pinnacle requested a written explanation for rejection, MSHA’s letter set forth sixteen reasons why it considered the plan inadequate. Jt. Ex. 2. Urosek considered the various explanations offered by Pinnacle to show how elevated carbon monoxide could occur in the absence of a fire. Tr. 145, 170-71, 208, 212. Urosek found Pinnacle’s explanations unpersuasive as all evidence led him to conclude that a gob heating was occurring. Tr. 169.

The Secretary argues that MSHA “made a reasoned choice” in denying Pinnacle’s plan to re-ventilate the area of the gob heating. The chief point of contention was Pinnacle’s provision that delayed withdrawal of miners in the unsealed area until carbon monoxide reached 25 ppm. The Secretary claims that the ambient level of carbon monoxide was 1-2 ppm, less than one-tenth the action level proposed in Pinnacle’s plan. Tr. 215. Furthermore, General Manager Nelson acknowledged that carbon monoxide readings of 12 to 26 ppm are “not typically encountered by our examiners.” Tr. 226.

Even though MSHA was not required to demonstrate that Pinnacle’s plan was unreasonable, the Secretary argues that Pinnacle’s withdrawal provision was not a reasonable and safe proposal. Although Nelson explained that 25 ppm was selected after Pinnacle concluded that no mine fire existed because injections of water and inert gas had not reduced CO levels, the Secretary calls this determination dubious since there is no evidence that any water actually reached the suspected gob heating and the injection of inert air took place before temporary seals were installed when oxygen levels remained above sixteen percent. Tr. 241; G. Ex. 9. The Secretary notes that even Derick conceded that a mine fire may still be occurring. Tr. 340, 344. The Secretary also notes that Nelson defended 25 ppm CO as reasonable because it was only “slightly above” the “normal” levels, which he apparently defines as the highest levels found since the mine fire started. Tr. 250. The Secretary argues there is nothing “conservative” about proposing a post-ventilation withdrawal provision that only triggers when carbon monoxide reaches 25 ppm, particularly when the operator’s own expert cannot rule out the continuing possibility of a mine fire.

In sum, the Secretary argues that MSHA acted in good faith and carefully considered Pinnacle’s request, and its denial of Pinnacle’s plan was reasonable and not arbitrary and capricious.

 

2.         Analysis - MSHA’s refusal to modify the 103(k) order to permit re-ventilation of the longwall and re-entry of the mine was not arbitrary and capricious or an abuse of discretion

 

            Section 103(k) provides:

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal.

            The initial question presented is the appropriate standard of review of a 103(k) Order. In Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980), the Commission concluded that it had authority to review the section 103(f) order at issue, but declined to determine whether such order was reviewable under an “arbitrary or capricious,” reasonableness,” or de novo basis. Id. at 2472, n. 7. While it does not appear that the Commission has resolved this issue definitively, Commission ALJs have applied an abuse of discretion standard. See Emerald Coal Resources, 30 FMSHRC 122, n.1 (Jan. 2008) (ALJ Zielinski) (“While the Act does not specifically provide for review of section 103(k) orders, the Commission has jurisdiction to review such orders under an abuse of discretion standard. Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980).”); see also, Southern Ohio Coal Co., 13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras )(holding that the issuance of the 103(k) order was “not an unreasonable or arbitrary abuse of [the inspector’s] authority or discretion”).

            In the context of plan submissions requiring MSHA approval, i.e., Emergency Response Plans (ERPs), ventilation control plans, and roof control plans, the Commission has applied an arbitrary and capricious standard of review. Emerald Coal Resources LP, 29 FMSHRC 956, 965-66 (Dec. 2007). Although Pinnacle challenges this precedent and argues that operator-submitted plans, including potential plans under Section 103(k), should be reviewed for reasonableness of the plan and not the reasonableness of MSHA’s rejection, citing Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 407-07 (D.C. Cir. 1976), I reject this argument. After an accident, which I have found above, Section 103(k) authorizes MSHA to issue such orders deemed appropriate to insure the safety of miners, and the operator shall obtain the approval of MSHA regarding any plan to return affected areas of such mine to normal. MSHA’s approval or disapproval of the plan is discretionary. Or, as the D.C. Circuit has stated, “the Secretary must independently exercise [her] judgment with respect to the content of . . . plans in connection with [her] final approval of the plan.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate Subcom. on Labor, Com. on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978). Moreover, as the Commission has noted in the ERP context, “[u]ltimately, the plan approval process involves an element of judgment on the Secretary’s part.” Emerald Coal Resources LP, 29 FMSHRC at 965, citing Peabody Coal Co., 18 FMSHRC 686, 692 (May 1996) (“Peabody II”). “[A]bsent bad faith or arbitrary action, the Secretary retains the discretion to insist upon the inclusion of specific provisions as a condition of the plan’s approval.” Id., citing C.W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or capricious where MSHA’s conduct throughout the process was reasonable).

            Thus, when MSHA denies approval of a plan submission to modify a 103(k) Order, as here, the appropriate inquiry is whether that denial was arbitrary and capricious or an abuse of discretion, not whether the plan submitted was reasonable. This standard appropriately respects the Secretary’s judgment while allowing review for abuse of discretion, errors of law, and review of the record under the substantial evidence test. Cf. Emerald Coal Resources LP, 29 FMSHRC at 966. Moreover, under the Administrative Procedure Act, agency action is set aside when “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S. C. § 706. Accordingly, I apply an arbitrary and capricious or abuse of discretion standard of review here.

            This standard involves a review of the record to determine whether the Secretary properly exercised her discretion and judgment in rejecting Pinnacle’s plan to re-ventilate and open the mine. Emerald Coal Resources LP, 29 FMSHRC at 966. While the scope of review under the “arbitrary and capricious” standard is narrow, the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citations omitted). Normally, agency action is considered arbitrary and capricious if the agency has relied on factors which Congress did not intend that it consider; entirely failed to consider an important aspect of the problem; offered an explanation for its decision that runs counter to the evidence before it; or has taken a position so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. Id; see also Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (“abuse of discretion” has been found when “there is no evidence to support the decision or if the decision is based on an improper understanding of the law”) (citations omitted).

            This standard has not been met here. As explained below, MSHA did not rely on extraneous factors or fail to consider important aspects of Contestant’s plan. It offered reasons for rejection that were supported by the evidence before it, and staked out a position that was plausible and supported by agency expertise. When Pinnacle requested a written explanation for rejection, MSHA’s letter set forth extensive reasons why it considered the plan inadequate so soon after the inertion process. Jt. Ex. 2. MSHA rationally relied on uncertainty as to the origin of the CO concentrations; that oxygen concentrations were not below 4 percent for all sampling locations for any significant length of time following the installation of the temporary seals; that CO concentrations had not stabilized for a sufficient time to permit definitive determination; that the proposed procedure to restart the Asco fan and remove the temporary seals would expose miners to the hazards associated with moving explosive mixtures over an ignition source; that Pinnacle’s plan allows insufficient time for the mine to stabilize following a major change to the ventilation system; that Pinnacle’s plan does not discuss the criteria to evaluate the atmosphere during the stabilization period before miners re-enter the mine for examination; that the proposed levels of CO are not acceptable since ambient levels appear to be 2 ppm or less, and the action level of 25 ppm greatly exceeds the ambient level; that the phrase “[p]ending no significant negative changes” is too vague to comprehend; and that no additional monitoring of the mine atmosphere is proposed once the initial evaluation of the longwall area is completed.

            According to Contestant, the primary disagreement between Pinnacle and MSHA was whether combustion was occurring on the longwall gob given MSHA’s alleged inability to explain how a heating could have started, but this disagreement really mirrors the issue of whether an accident occurred in the first place, an issue that I have resolved above. Urosek considered and rejected the various explanations offered by Pinnacle to show how elevated CO could occur in the absence of a fire. Tr. 145, 170-71, 208, 212. Urosek, a mine fire expert with more extensive and relevant experience than Derick, found Pinnacle’s explanations unpersuasive as all evidence led him to conclude that a gob heating was occurring. Tr. 169. In addition, I note that upon questioning from the bench, Pinnacle’s own expert acknowledged the potential, albeit unlikely, scenario that combustion or ignition occurred during torch cutting and welding on or about April 20 on the headgate side near the longwall entry of the 9E. Tr. 260; cf. Tr. 239, 308. As explained in Section III, A, 2 above, I conclude that the Secretary proved by a preponderance of the evidence that it was more likely than not that the May 19 event, i.e., detection of 22 ppm CO measured between the No. 2 and No. 3 entries in the 9E entries of the longwall gob area, was the result of a smoldering gob fire, and therefore, an accident occurred within the meaning of Section 103(k).

               The record clearly establishes that MSHA and its expert considered relevant factors that Pinnacle brought to its attention during several meetings or telephone conferences in May and June, including a full discussion on June 23 of the details of Pinnacle’s June 21 reventilation plan and whether it met MSHA’s specifications. Tr. 116-18. MSHA declined to approve Pinnacle’s plan at that time primarily because of disagreement over the ambient level of CO and the provision that delayed withdrawal of miners in the unsealed area until carbon monoxide levels reached 25 ppm. In addition, MSHA did not agree that the CO was a naturally occurring condition, and the 8-hour waiting period proposed after re-ventilation fell far short of MSHA’s typical 72-hour period. Tr. 119. “[I] discern in these events adequate notice and discussion by MSHA officials. Nothing in the record suggests bad faith by MSHA, and [I] perceive no course of arbitrary conduct.” See C.W. Mining 18 FMSHRC 1740, 1747 (Oct. 1996)(roof control plan).  Furthermore, at the hearing, Urosek gave reasoned explanations why MSHA disagreed with the Pinnacle’s conclusion at page 10 of its plan (Jt. Exh. 1, p. 10) that the CO levels were naturally occurring from upper seams around the borehole location. Tr. 119-136. Based on all of his extensive years of experience with MSHA, Urosek credibly testified that the only time he ever saw elevated, localized levels of CO such as existed at the tailgate side of the 9F longwall panel in this case, was when it was associated with some type of heating. Tr. 145-46. He explained MSHA’s view that given the CO levels present and the recent inerting and sealing process, it was too early on June 23 to safely re-ventilate the mine. Tr. 124-26; see also Jt. Ex. 2. He explained why MSHA disagreed with Pinnacle’s plan assertion that gob gas was homogeneous and stable based on strong correlations between hydrogen, methane and CO. Thus, although hydrogen and CO mirrored each other, the methane and CO did not track each other, as shown by G. Ex. 13. Tr. 126-29, 131. Therefore, MSHA concluded that the CO was coming from a different location than the methane. Tr. 131. Urosek also refuted Pinnacle’sprediction that a lengthy continuation of the inertion process into the temporary sealed area would most likely result in continued levels of carbon monoxide and hydrogen (Tr. 339; Jt. Ex. 1, p. 10, para. (e)), since sample results through July 10, showed that CO consistently declined and began to stabilize. Tr. 129-31; G. Ex. 12.

            MSHA also rationally rejected the specifics of Pinnacle’s June 21 plan to re-ventilate, re-enter and evaluate the longwall area, and resume operations, as set forth in Jt. Ex. 2, p. 11. With regard to re-ventilation, Urosek and MSHA were of the view that eventually they could have worked with Pinnacle to achieve a safe way to take the seals down and restart the fan. But MSHA was concerned in late June about sampling results and the prospect of an explosive mixture of methane during re-ventilation while miners were underground with battery-powered equipment in the sealed area. Tr. 132-33. With regard to re-entry and evaluation after the ASCO fan had been restarted for 24 hours, Pinnacle proposed an eight-hour waiting period for atmospheric stability. In the absence of missing or trapped miners, however, MSHA adhered to longstanding “standard mine rescue practice” to wait 72 hours after the ventilation change for atmospheric stability before re-entry. Tr. 133-34. Urosek opined that MSHA and Pinnacle could have likely worked out these re-entry and evaluation time frames. Tr. 136.

            Turning to the chief point of contention concerning Pinnacle’s re-ventilation plan, the resumption of operations, the parties were at loggerheads over the ambient level of CO and Pinnacle’s provision that delayed withdrawal of miners in the unsealed area until CO reached 25 ppm, a level the Secretary considered unreasonable and unsafe. Urosek credibly testified that CO at 25 ppm indicated that some type of heating was going on of sufficient level and temperature to ignite methane. Tr. 141. Based on CO samples taken from a natural gas pipeline at the mine (G. Ex. 14), degasification boreholes in adjacent longwall panels (G. Ex. 15), and another bleeder system in the mine (G. Ex. 16), MSHA rationally concluded that the ambient level of CO in the mine was 1 or 2 ppm. Tr. 138-143. This conclusion is also supported by Urosek’s testimony that ambient levels of 1 to 2 parts per million (“ppm”) was what MSHA inspectors normally encountered. Tr. 215. Although Pinnacle challenges the use of particular samples for comparison purposes, MSHA asked Pinnacle to sample anywhere it was safe to travel and get as close to the gob as possible, in order to validate Pinnacle’s claim that the CO was naturally occurring at levels above the ambient level as determined by MSHA, but such sampling failed to support Pinnacle’s contention. Tr. 140, 142; G. Exs. 14-16. In these circumstances, I find that the sampling was sufficiently widespread and representative enough to establish an ambient level of CO of 1 or 2 ppm as determined by MSHA. Pinnacle failed to establish an alternative ambient level that could be considered more accurate.

            It is important to note that in determining whether MSHA’s rejection was arbitrary and capricious, I examine the circumstances before the MSHA District Manager when he considered Pinnacle’s plan in late June. Cf. Emerald Coal Resources LP, 29 FMSHRC at 968. As noted, any Pinnacle plan after this date is not in evidence and not ripe for adjudication before me. See note 5 supra. A contrary result would allow an operator to continually manipulate the time frame for adjudication by revising its plan without giving MSHA an opportunity to fully address the updated revisions. Pinnacle took this risk here by renewing its motion for expedited hearing while negotiations were still ongoing and any arguable impasse was broken by its subsequent revisions.

            Based on my review of the record, it is apparent that MSHA’s refusal to approve Pinnacle’s June 21 plan was not arbitrary, capricious or an abuse of discretion. In Section 103(k), Congress gave the Secretary the power to accept or reject a plan submitted by the operator to resume mining as the Secretary “deems appropriate.” See e 30 U.S.C. § 813(k). As the Ninth Circuit has observed, MSHA’s authority to manage accidents pursuant to Section 103(k) is one of “plenary power” and “complete control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9^th Cir. 1983).

            I find that MSHA examined the relevant data and articulated a reasoned and satisfactory explanation for its rejection including a rational connection between the facts found and the choice made. National Industrial Sand Association v. Marshall, 601 F.2d 689, 699-700 (3^rd Cir. 1979). Put differently, MSHA cogently explained why it exercised its discretion to reject Pinnacle’s June 21 plan and why that rejection was the product of reasoned decision making. The record amply demonstrates adequate consideration and discussion by MSHA regarding the disputed plan provisions, that the negotiations were conducted in good faith, and that MSHA’s decision to reject the plan on June 23 was supported by facts presented to the MSHA District Manager. I find nothing arbitrary or capricious in MSHA’s refusal to approve a post-ventilation withdrawal provision that was triggered only when CO levels reached 25 ppm, particularly when such levels prompted management to withdraw miners from the longwall area, shut off power to the section, as required by the MSHA-approved ventilation plan, and subsequently evacuate the entire mine. Stip. 3; Tr. 226. In fact, Pinnacle’s own general manager acknowledged that CO readings of 12 to 26 ppm were atypical and raised concern. Tr. 226. In these circumstances, contrary to Pinnacle’s contention, I find that Pinnacle’s plan was not a conservative and cautious approach.

            On the other hand, I am cognizant of the financial inconvenience caused by the ongoing loss of longwall production at the Pinnacle Mine. The longwall shutdown has imposed prodigious costs on the operator and MSHA, and resulted in considerable loss of income to the miners. But financial inconvenience caused by the “accident” is an insufficient reason to unseal the longwall panel before MSHA has greater confidence that the atmosphere has stabilized. Even Derick conceded that he could not rule out the continued existence of a mine fire at Pinnacle. Tr. 340; 344. I agree with the Secretary that the experience of the Galatia and VP mine fires and the extended idling of Pinnacle in 2003-2004 go a long way toward demonstrating that it may be safer and more conducive for long-term production, to return the mine to normal operations through extended sealing rather than premature re-ventilation under the June 23 plan provisions.

            Moreover, in my view, the Secretary has proposed the better rule-of-thumb based on the learned treatise Mine Fires. G. Ex. 20. As noted therein, premature unsealing “might be the slowest, most difficult, most dangerous, and most expensive way” to return a mine to normal operations. G. Ex. at 128. Past experience at this mine in 2003-2004 appears to substantiate this proposition. No one can state with certainty the right time to unseal. A variety of factors must be considered, but the general “rule-of-thumb” is that unsealing should take place at the earliest one month after the mine atmosphere in the sealed area has stabilized. G. Ex. 20 at 127. Pinnacle’s June 21 plan to re-ventilate was submitted just ten days after completion of temporary seals, at a time when samples showed that the mine atmosphere had not yet stabilized. G. Exs. 11 and 12. As the author of Mine Fires points out, “[a] better rule-of-thumb is to ask, ‘Why unseal?’ Too often that question was asked too late; and more often the answer was, ‘There was no good reason.’” G. Ex. 20 at 128.

            In sum, I cannot conclude that the Secretary’s rejection of plan provisions that she deemed would jeopardize miner safety is indicative of bad faith, arbitrary or capricious conduct, particularly in light of the overarching purpose of the Mine Act to ensure miner safety and health and the history of this mine concerning gob fires and methane explosions. See my record reservations at Tr. 258. The parties were unable to bridge their differences within the strictures of the Secretary’s plenary authority under Section 103(k) as she has reasonably interpreted it. The Secretary’s rejection of the Contestant’s plan was neither arbitrary and capricious nor unreasonable and is hereby AFFIRMED.

 

ORDER

 

            Based on the foregoing findings of fact and conclusions, the contested Section 103(k) Order issued on May 25, 2011 is AFFIRMED. The Notice of Contest filed by the Contestant is DENIED and DISMISSED.

 

Thomas P. McCarthy

Administrative Law Judge

 

 

Distribution: (E-Mail and Certified Mail)

Samuel C. Lord, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000