Accordingly, we conclude that the Judge correctly found that the District Manager did not apply the PIL as a binding norm, and that his use of the PIL was not arbitrary and capricious.

E.        Whether the Judge erred in excluding certain evidence and expert testimony

            During the hearing, Prairie State attempted to introduce evidence consisting of approved ventilation and roof control plans from other District 8 mines using extended cuts, a study on the use of 40-foot extended cuts in District 8, and NIOSH studies on 40-foot extended cuts. 32 FMSHRC at 612. None of the evidence had been introduced to the District Manager during the course of the negotiations, and the Judge did not admit the evidence into the record. Id. at 611-12.

            Prairie State argues that the District Manager has an obligation to examine the relevant data, even if not specifically raised by the operator. Pet. at 13. Prairie State maintains that it is fundamentally unfair and makes MSHA the “arbiter of competitive advantage” to allow one operator the advantage of a particular plan provision and deny the benefits of the same provision to another operator. Id. at 13-14.

            The Judge determined that the other mine plans were not relevant to her decision regarding the circumstances and suitability of the plans at Lively Grove. 32 FMSHRC at 612. She declined to find that Phillips abused his discretion because he did not find and review all relevant information, particularly when that information was not brought to his attention by the operator. Id. at 611-12. She further noted that neither Hartsog, testifying on ventilation, or Prairie State witness Murali Gadde, testifying on roof control, was involved in the plan development or presentation to the District Manager, and that the information or studies assembled by them was done so solely in preparation for hearing, after the plans had been deemed deficient. Id.

            Pursuant to Commission Procedural Rule 63(a), a judge may exclude any evidence that is irrelevant, unduly repetitious, or cumulative. 29 C.F.R. § 2700.63(a). The Commission reviews a judge’s evidentiary rulings under an “abuse of discretion” standard. Shamokin Filler Co., 34 FMSHRC 1897, 1907 (Aug. 2012); Mach Mining, LLC, 34 FMSHRC at 1807; Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000) (citations omitted).

            The Commission recently addressed this issue. In Mach Mining, we found that the Judge did not abuse her discretion in excluding evidence that had not been presented to MSHA prior to final determination on the proposed plan. 34 FMSHRC at 1807. Here, since the Judge was charged with examining whether Phillips abused his discretion in making his determinations, she correctly focused her analysis on “how he made his decision, what he had before him at the time, and what information he used.” 32 FMSHRC at 612. The Judge found, and we agree, that it was not an abuse for Phillips to rely on the information he had in front of him, and because the disputed evidence was not introduced to him during his evaluation period or taken “back to [him] for re-consideration,” it was not relevant to Phillips’ determination, which was made prior to the hearing. See id. If Prairie State wanted to ensure that Phillips considered the proffered evidence before making final determinations on the plan provisions, it was the operator’s responsibility to present the studies to Phillips on the company’s behalf and explain how and why it was relying on them.

            Accordingly, we conclude that the Judge did not abuse her discretion in excluding specific evidence that had not been presented to MSHA for consideration prior to the District Manager’s final determination.

III.

Conclusion

            For the reasons discussed above, we affirm the Judge’s application of the “arbitrary, capricious, or abuse of discretion” standard of review to her examination of the District Manager’s denial of approval of the proposed plans. We affirm the Judge’s finding that the District Manager did not act arbitrarily and capriciously or abuse his discretion in his determinations that the length of cuts, width of entries, and length of diagonals proposed by MSHA were suitable to the Lively Grove Mine. We vacate the Judge’s findings regarding ventilation quantities, red zone issues, number of turns in crosscut, curtain setback, mesh in-cycle, and the roofbolter in relation to the continuous miner, and remand for further analysis consistent with this decision. Finally, we conclude that the Judge did not err in her exclusion of certain evidence and testimony. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Young, dissenting:

            I respectfully disagree with the majority’s application of the “arbitrary and capricious” standard to the District Manager’s review of the operator’s plans in this case, and would therefore vacate and remand the judge’s decision so that she may apply the proper legal standard to the plans at issue. The majority’s opinion is unsupported by any competent legal authority, and in fact, is directly contradicted by binding precedent and statutory provisions.

            Roof control plans are governed by 30 C.F.R § 75.220(a)(1), which states that “[e]ach mine operator shall develop and follow a roof control plan approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine.” Similarly, 30 C.F.R. § 75.370(d) provides that “[n]o proposed ventilation plan shall be implemented before it is approved by the district manager.” The meaning of the language governing ventilation and roof control plans and the burdens and standards governing their resolution has been recognized as a settled matter for decades of Commission jurisprudence.

            This is unsurprising, given the intent of the statute and the clarity of the regulatory language following that intent. In both cases, the language is straightforward in its assignment of responsibilities: It is the operator’s duty to propose, or to develop, and follow the plan; the District Manager’s to approve or (implicitly) to disapprove of it. See Peabody Coal Co., 15 FMSHRC 381, 387-88 (Mar. 1993) (“Peabody I”) (recognizing common process for approval of various mine plans) (citing Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985) (ventilation plan)); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) (methane and dust control plans)); see also Target Indus. Inc., 23 FMSHRC 945, 972 n.1 (Sept. 2001) (Verheggen and Riley, dissenting) (noting that “[t]he process of developing a roof control plan is analogous to the ventilation plan process”).

            Disputed plans, for which the parties are unable to agree on plan provisions despite good-faith negotiations, are subject to review by the Commission, which must resolve conflicts through our hearing process. Operators who disagree with MSHA’s refusal to approve a plan may notify MSHA of their intent to implement a non-approved plan, implement the non-approved plan momentarily, and receive from MSHA a “technical” citation alleging a violation of section 75.370(d). See, e.g., Carbon County Coal, 7 FMSHRC at 1371.

            The Commission, through our decisions as interpreted and applied by our judges, has long held that the Secretary bears the burden of establishing that the operator’s plan (in the particulars of its disputed provision(s)) is unsuitable, and that the Secretary’s is suitable to the mine in question. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996) (“Peabody II”); Peabody I, 15 FMSHRC at 387-88; C.W. Mining Co., 18 FMSHRC 1740, 1748-53 (Oct. 1996); Jim Walter Res., Inc., 31 FMSHRC 932, 933 (July 2009) (ALJ); Peabody, 16 FMSHRC 2072, 2073 n.2 (Oct. 1994) (ALJ); Old Ben Coal Co., 16 FMSHRC 2172, 2175-76 (Oct. 1994) (ALJ).

            In the case below, the ALJ short-circuited the process by avoiding the threshold question of unsuitability. By moving directly to the evaluation of the suitability of the Secretary’s plan under the least-rigorous standard in the law, the judge effectively replaces the burden of proof with a deferential “review” of the rationality of the District Manager’s negotiating position.

            The majority’s endorsement of the ALJ’s sleight-of-hand thus simplifies the problem of reviewing plan decisions by assuming away the issue. Instead of requiring the Secretary to carry the burden of proof on any substantive matter, the majority today agrees to allow the Secretary to prevail simply by demonstrating that his agents’ decision-making – i.e., the process through which the plan was evaluated and replaced – met the minimum standard for reasonableness under the law.

            Thus, instead of determining that the Secretary has properly disapproved of an operator’s plan (because it is not suitable) and substituted his own (because it is), the majority focuses on the process and evades the Commission’s responsibility to judge the outcome. The analysis of the Secretary’s decision is thereby limited to a crabbed reading of the facts under an inapposite, appellate standard of review, and is divorced from our duty to pass on the underlying facts and circumstances.

            This is fundamentally erroneous. First, the majority has determined to negate an established legal principle, supported by nearly 30 years of jurisprudence, arising from the essential structure of the Act and the clear language of the regulatory standard. Second, the majority has marginalized the Commission’s own statutory role as an independent arbiter of disputes under the Act and regulations.

I.         The Majority’s Decision is Inconsistent with the Mine Act, Language of the Governing Standards and Sound, Established Precedent

            The Mine Act provides that “the operators of [] mines with the assistance of the miners have the primary responsibility to prevent the existence of [unsafe and unhealthful] conditions and practices in [] mines.” 30 U.S.C. § 801(e). This is a fundamental recognition of a responsibility, not merely to follow the directives of the Secretary or the Congress, but to ensure that unsafe and unhealthful conditions and practices are prevented and avoided in every facet of operation.

            The choice made by Congress is especially relevant to the development of mine plans, including specifically the roof control and ventilation plans at issue in this case. The standards implement sections 302(a) (requiring adoption of approved roof control plans) and 303(o) (requiring adoption of approved ventilation plans) of the Mine Act. The Secretary drafted and promulgated the standards at issue in this case through notice and comment rulemaking. He therefore chose the manner in which plans would be proposed and approved, consistent with the Act’s command that operators “adopt” approved plans for roof control and ventilation.

            The language in the standards imposes on operators the duty to “develop and follow” or “propose[]” and “implement[]” plans for roof control and ventilation, respectively. This obligation has been recognized, almost from the beginning of coal mine safety jurisprudence, as a “peculiar species of promulgation which the operator himself adopts” the governing standard. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (1976) (emphasis added). Thus, the Commission has long held that the Secretary bears the burden of establishing both the unsuitability of the operator’s provision and the suitability of the District Manager’s alternative. See Peabody II, 18 FMSHRC at 690 (“We conclude that the Secretary carried his burden of proving the unsuitability of the former plan and the suitability of the new provision . . .”) (emphasis added).

            Reading the words of the statute and regulations assigning responsibility in the plan approval process, in their common usage, one must naturally conclude (as the Commission and its judges have previously decided) that the Secretary must demonstrate the unsuitability of the operator’s plan. The Secretary chose to require operators to prepare plans, subject only to approval by the District Manager. The power to approve implies the power to disapprove.

            Logically, a plan may be rejected only if it is unsuitable, because the Secretary must establish a basis for disapproval. See Zeigler, 536 F.2d at 406 (statute clearly requires operator, not Secretary to adopt plan; Secretary lacks “anything close to unrestrained power to impose terms”) (emphasis added). Were we to permit the Secretary to substitute a plan merely because it is suitable, we would confer that very power, and negate the operator’s responsibility to develop and implement plans. This would fundamentally transform the process, in a manner at odds with the language in the governing standards. Thus, it follows that the Secretary (who bears the burden of proof) must demonstrate that the operator’s plan is unsuitable.

            Until recently, the clear direction provided by the relevant standards and their statutory underpinnings was a settled matter. Indeed, the consistency of early authority supporting the common-sense reading of the plain language had established the Secretary’s burden as a bedrock principle of black-letter law. See id. at 406-07 (even if Secretary is adamant on inclusion of conditions, operator retains the right to refuse to adopt the plan with the required conditions).

            The solidity of the law on this point is best illustrated by the fact that the majority itself cites C.W. Mining, 18 FMSHRC 1740 (Oct. 1996). However, that case hardly supports the majority’s position. On the contrary, C.W. Mining further cemented, as binding precedent, use of the substantial evidence standard to determine whether the Secretary had met his burden of proving that his plan provisions were suitable, and the operator’s unsuitable, in a case arising from changes in the mine’s roof conditions and a history of roof fall accidents. Id. at 1748-54. The majority, however, ignores this central and controlling holding in C.W. Mining. Slip op. at 5. Instead, in a case where the very issue we consider today was decided in direct prejudice to the majority’s position, my colleagues have transubstantiated the burden of proof from an entirely different question in C.W. Mining: whether the Secretary negotiated in good faith. This is a distinct issue and, as we held in C.W. Mining, is subject to a different burden of proof. Id. at 1746-54.

            While the Secretary does cite two other cases applying the arbitrary and capricious standard, neither is controlling, or even persuasive, for each applied the standard in distinct and unusual circumstances. Emerald Coal Res., LP, 29 FMSHRC 956 (Dec. 2007) considered for the first time the approval of emergency response plans under the Mine Improvement and New Emergency Response Act amendments (“MINER Act”) to the Mine Act. The MINER Act required approvals to be carried out by the Secretary (not district managers), on an accelerated timetable and specified the provisions that were required to be included in all plans. Thus, plan approval or disapproval centered on a tightly-focused set of criteria developed by Congress, subject to approval by “the Secretary,” not a district manager.

            At the time, there were no implementing regulations. See Emerald Coal, 29 FMSHRC at 957-58 (noting that 30 U.S.C. § 876(b)(2)(A) of the MINER Act required that operators develop ERPs and submit them for approval by the Secretary within 60 days after the date of the statute’s enactment on June 15, 2006). Arguably, the ERP requirements are not even delegated lawmaking in any meaningful sense, for the direction given to the Secretary is to ensure that all plans met Congressionally-mandated standards.

            Those circumstances are hardly analogous to a process through which operators are required to develop plans specifically tailored to each mine and to adopt them through approval by the District Manager, subject to dispute resolution through litigation before the Commission. See 30 U.S.C. § 876(b)(2)(E)(i)-(vi); see also Twentymile Coal Co., 30 FMSHRC 736, 747 (Aug. 2008) (noting that “the MINER Act provides for the inclusion in ERPs of six ‘areas of concern that have universal applicability and are therefore susceptible of more generalized regulation’”); Mach, 34 FMSHRC at 1812 (Duffy and Young, dissenting in part) (recognizing the inherent difference in the implementation and approval process of ERPs because such plans did not require the Secretary to make determinations whether various provisions are suitable to the mine and were less dynamic than other mine plans).

            Monterey Coal Co., 5 FMSHRC 1010 (June 1983), is also distinguishable. In that case, MSHA discovered that it had mistakenly approved of an impoundment plan by applying the wrong set of published criteria. The Commission found this to be a “good faith mistake” and not to be “arbitrary and capricious.” Id. at 1016-1020. However, the case did not involve roof control or ventilation plans or pre-approval negotiation of any plan. Furthermore, the agency gave the operator the opportunity to submit additional data before revoking the approval and issuing the citation. Finally, as in C.W. Mining, supra, the arbitrary and capricious standard in Monterey Coal was applied to a question of good faith on the Secretary’s part, not the substance of the plan or the operator’s right to develop a plan, under the Act and the Secretary’s regulations.

            The unique statutory provision in Emerald or the odd fact pattern in Monterey Coal places those cases outside the purview of the controlling and persuasive authority for roof and ventilation plan approvals. The majority can point to no shift in the law justifying its unsettling of the law.

            This is not to belittle concern for prudence and caution, especially in reviewing plans for new mines or new sections employing radically different mining techniques or in exceptional conditions. However, as experience for most of the Act’s history has demonstrated, the affirmation of a prudent and cautious approach to mine plans may be easily accommodated within the pre-Mach framework.

            Within that legal construct, a District Manager who finds a provision to be inconsistent with the safe operation of a mine should be prepared to provide an evidentiary basis for disapproving of a plan or any of its provisions, arising from experience with mines of similar geology, similar plans, or other analogous circumstances. This is hardly an unreasonable burden for experienced agency officials – in fact, it has been standard operating procedure, as cited cases show, since the enactment of the Coal Act.

            Beyond the Commission’s disregard of our own precedent, the majority also disdains the express terms of the Mine Act, which clearly states that the Commission shall provide an opportunity for a hearing (in general accordance with the provisions of the Administrative Procedure Act (“APA”)) on contests of citations, orders penalties, or other issues under the Act. 30 U.S.C. § 815(d). The standard of proof for the Secretary under this provision has also been established as the burden of proving his case by a preponderance of the evidence. Dir., Office of Worker’s Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 277-78 (1994); Steadman v. SEC, 450 U.S. 91, 102 (1981). This is a clear legislative directive, and must be obeyed.

II.       The Majority Abdicates an Important Commission Responsibility as Arbiter of Irreconcilable Plan Disputes

            It’s understandable that the Secretary should wish to lighten his burdens in the proceedings before us. What’s beyond reason is the Commission’s willingness to passively assent to – or worse, to encourage – the agency’s efforts to marginalize the review function assigned to us by Congress. Yet, that is precisely the effect of the majority’s decision.

            Congress chose to establish an independent review Commission as the exclusive means for adjudicating contested issues arising under the Mine Act. See 30 U.S.C. §§ 823(a), (c). Federal courts have recognized the Commission’s function as a means of providing due process. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994). In particular, the Commission’s authority over ventilation plan disputes has been recently acknowledged. See Elk Run Coal Co., Inc. v. U.S. Dep’t of Labor, 804 F.Supp.2d 8, 14, 32 (D.D.C. 2011) (evaluation of ventilation systems, controls, and effectiveness “well within the Commission’s expertise” and squarely within the Act’s administrative review scheme).

            The Commission therefore bears responsibility for deciding these issues, including, especially, the resolution of factual disputes. The Commission’s findings of fact must be upheld on judicial review if they are supported by substantial evidence. See 30 U.S.C. § 816(a)(1) (“[The findings of the Commission] with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive”). This requires, of course, the development of an evidentiary record. The judge’s error, compounded by the Commission’s endorsement of it in Mach and in the case at bar, lies in a refusal to make any meaningful factual determinations.

            This is especially egregious here, where the operator raised serious questions about relative safety risks and benefits of its approach and the Secretary’s. The judge demurred on the comparison of these alternatives. There is no determination in her decision, for example, that resolves whether the safety risks inherent in more frequent equipment moves are outweighed by the hazards to roof stability that deeper cuts might present.

            It is therefore not possible for the Commission to conduct meaningful review of the judge’s findings of fact – because there is no exposition of the salient facts in tension. See U.S. Steel Mining Corp., 6 FMSHRC 1908, 1916 (Aug. 1984) (remanding case to judge because his conclusion on the issue of unwarrantable failure was insufficiently explained) (citing The Anaconda Co., 3 FMSHRC 299, 299-302 (Feb. 1981)). Instead, the judge forecloses this central issue by finding that the Secretary’s decision is not “arbitrary and capricious.”

            Because employment of this standard is contrary to our governing statutory and common law, the majority must justify its decision to disregard or overturn that law, which is grounded on our organic role as the entity charged by statute with resolving the type of factual and legal questions posed by this case. The futility of the majority’s forage for authority in contravention of our assigned duty is self-evident. Just as the misapplication of C.W. Mining leads us, inadvertently, to the correct standard applied in that case, so does the majority’s use of a bit of dicta from UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989), direct us, eventually, to a contrary, legally-correct holding.

            The Court’s observation, in Dole, that “while the mine operator had a role to play in developing plan contents, MSHA always retained final responsibility for deciding what had to be included in the plan,” slip op. at 5 (quoting UMWA v. Dole, 870 F.2d at 669 n.10), is accurate as far as it goes. The District Manager can, and routinely does, insist that his plan provisions be included in the event of an impasse. However, this is not the end of the process. The operator may refuse to revise its plan, choosing to operate briefly, under the unapproved plan. In that case, the operator notifies the agency of its intent to proceed, accepting the citation for a “technical” violation and abating it by adopting the Secretary’s provisions. See Carbon County, 7 FMSHRC at 1371 (operator not required to acquiesce to District Manager’s position but may refuse to implement, triggering litigation before Commission).

            Because this is the law as we had always viewed it, the Commission has itself recognized the limits of the very language the majority cites from UMWA v. Dole, in a holding establishing that this language cannot mean what the majority insists it must: “While we note, as did the court in UMWA v. Dole [citing language employed by the majority here], that the plan approval process involves an element of judgment on the part of the Secretary, when that judgment is challenged, the Secretary must sustain his burden with regard to suitability.” Peabody II, 18 FMSHRC at 692 (emphasis added; footnote omitted). The majority’s reliance on UMWA v. Dole therefore requires both the denial of the plan dispute process we’ve followed, virtually ab initio, as well as an express refutation of our contrary interpretation of the language in Dole in a controlling precedent.

            Thus, there is no case, save Mach, that supports the majority’s decision. The directly relevant cases cited by the majority, involving consideration of ventilation and/or roof control plans, lead to or contain authority clearly affirming the Secretary’s substantive burden on the question of suitability. As noted supra, the cases applying a different standard are not on point.

Conclusion

            The standard of review is a vital concern here, not because of the outcome in this or any other case, but because standards are the expression of policy choices, governed by fundamental principles which protect the public interest in its broadest sense. If the Secretary wishes to exert greater control, the Secretary may at any time propose a regulatory regime that confers greater specific authority to his agents in deciding plan issues. Until then, the Secretary is bound, as we are, by the terms in the Act and his regulations as they are written, not as he wishes they might have been. Accordingly, I dissent.

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution

Arthur M. Wolfson, Esq.

Jackson Kelly, PLLC

Three Gateway Center

401 Liberty Avenue, Suite 1340

Pittsburgh, PA 15222

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center

401 Liberty Avenue, Suite 1340

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19^th Street, Suite 443

Denver, CO 80202-5268