FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 9, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Cohen, and Nakamura, Commissioners

            In this consolidated contest and civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Mach Mining, LLC (“Mach”) is seeking review of two citations alleging violations of 30 C.F.R. § 75.370(d) that were issued after Mach and the Department of Labor’s Mine Safety and Health Administration (“MSHA”) reached an impasse during the approval process for Mach’s ventilation plans. Administrative Law Judge Margaret Miller affirmed the citations. 32 FMSHRC 149, 168 (Jan. 2010) (ALJ). For the reasons that follow, we affirm in part and vacate and remand in part.

I.

Factual and Procedural Background

            Mach operates the Mach No. 1 mine, an underground coal mine near Johnston City, Illinois. Coal is mined using continuous miners to develop gate roads and a longwall shearer that extracts a block of coal by retreating from east to west. PDR at 2. Mach uses a three-entry system for development of the gate entries. Tailgate (“TG”) 1 was the first set of gate entries developed. Tr. 148. Three entries in TG 1 are connected by crosscuts. 32 FMSHRC at 152; Tr. 148. Headgate (“HG”) 1 is a set of three entries connected by crosscuts that were developed parallel to TG 1. Tr. 148. Between TG 1 and HG 1 was a block of coal, referred to as Panel 1, that was extracted by retreat longwall mining. Tr. 143-44, 150.

            After Panel 1 had been mined, HG 1 became a tailgate, and a new set of parallel entries was developed. Tr. 150. The new set of entries is referred to as Headgate 2 (“HG 2”). Tr. 150. Between HG 1 and HG 2 is the second panel of coal, or Panel 2. Tr. 150. Likewise, Panel 3 is adjacent to Panel 2 between HG 2 and HG 3. Tr. 151.

            The method for ventilating this mine is new to the mining industry. 32 FMSHRC at 165. It relies upon an unusually large volume of air to prevent coal dust and methane accumulation, and uses fewer stoppings and curtains than other systems. 32 FMSHRC at 151, 165. Air is forced into the mine with a blower fan at the intake shaft in the northeast corner of the mine (the south main). Tr. 148-49; 32 FMSHRC at 156. At the northwest corner of the mine, an exhaust fan (the “bleeder shaft fan”) pulls air out of the mine. 32 FMSHRC at 151. There are two bleeder shafts, one cross-cut apart, that join together before reaching the bleeder shaft fan. Id. at 156. Air reaches the bleeder shafts through the bleeder entries, which are perpendicular to the longwall panels and the gate entries. Id.

            Roof conditions in the bleeder entries worsened dramatically during the mining of Panels 1 and 2. Tr. 154; 32 FMSHRC at 152. In an effort to avoid further adverse roof conditions, Mach developed HG 3 to a length of approximately 19,000 feet, which was 1,000 feet further than shown in the maps included in Mach’s previously approved ventilation plan for Panels 1 and 2. 32 FMSHRC at 152. The longer Panel 3 entries created a “stair step” in the bleeder entries inby Panel 3. Id. at 157.

            On March 13, 2009, MSHA Inspector Bobby Jones issued a section 104(d)(1) withdrawal order (Order No. 8414238) to Mach for mining HG 3 without an approved ventilation plan in violation of 30 C.F.R. § 75.370(d). Mach Mining, LLC, 33 FMSHRC 1674, 1675 (July 2011) (ALJ). Mach challenged Order No. 8414238, which was subsequently docketed as LAKE 2009-395-R and assigned to Administrative Law Judge Richard Manning. Id.

            MSHA subsequently conducted two ventilation surveys at the mine. 32 FMSHRC at 155. The first survey was conducted from March 31 through April 2, 2009. Id.; Gov’t Ex. 4. At the time of the first survey, the mine had completed mining Panel 1, and the longwall had retreated about 800 feet in Panel 2. 32 FMSHRC at 155; Gov’t Ex. 4 at 2. MSHA conducted an air pressure and air quantity investigation. 32 FMSHRC at 155. In so doing, MSHA conducted a tracer gas study, collected bottle samples, took underground readings at various locations, measured pressure differentials, and used chemical smoke and hand-held gas detectors to determine the direction of airflow and the levels of methane and oxygen. Id. MSHA conducted the second ventilation survey from June 9 to 11, 2009. Id.; Gov’t Ex. 5. At the time of the second survey, the longwall had retreated approximately 5,400 feet in Panel 2. Gov’t Ex. 5 at 2. Both surveys revealed that the bleeder system was working effectively on the dates of the surveys. 32 FMSHRC at 157.

            On June 4, 2009, Mach submitted a revised ventilation plan to MSHA, which included a base, or general, plan for the mine. Tr. 46; Gov’t Ex. 1. Mach and MSHA then entered into discussions regarding the suitability of the plan to conditions at the mine. Tr. 52.

            On August 6, 2009, District Manager Robert Phillips sent a letter to Mach rejecting the plan and identifying items that needed to be addressed in order for Mach to continue mining Panel 3. Tr. 120; Gov’t Ex. 11. In the letter, MSHA provided Mach with two possible options for mining Panel 3 and ventilating the stair step: (1) developing new bleeder entries 1,000 feet behind Panels 1 and 2, which connect to each of the three existing gate entries (TG 1, HG 1, HG 2); or (2) connecting HG 3 to the existing bleeder system for HG 2 in a wrap-around fashion. Tr. 120-22; Gov’t Ex. 11.

            On September 3, 2009, Mach responded to MSHA’s August 6 deficiency letter by submitting a revised ventilation plan to MSHA specific to mining Panel 3. Tr. 47; Gov’t Ex. 2. In the proposed site-specific plan, Mach indicated that it chose the second option described by MSHA so that it would connect HG 3 to the existing bleeder entry for HG 2 in a wrap-around fashion. Gov’t Ex. 2. On September 9, 2009, MSHA terminated Order No. 8414238. M. Ex. 46. On September 20, 2009, Mach resumed mining in HG 3. PDR at 12.

            The next day, on September 21, 2009, MSHA issued a section 104(d)(2) order (Order No. 8414529) alleging a violation of section 75.370(d) because Mach had resumed mining before a ventilation plan had been approved by the district manager. M. Ex. 51. Mach contested that order and the associated civil penalty, and the contests were docketed as LAKE 2010-190 and 2009-716-R and assigned to Judge Miller.

            On September 29, 2009, MSHA issued the two subject technical citations to Mach, alleging violations of section 75.370(d). Tr. 51. Citation No. 6680550 alleges that Mach mined without an approved ventilation plan specific to Panel 3, while Citation No. 6680551 alleges that Mach mined without an approved base ventilation plan. 33 FMSHRC at 149-50. In addition, on September 29, MSHA sent Mach two letters describing the deficiencies in Mach’s June 4 proposed base plan and September 3 proposed site-specific plan. Gov’t Ex. 12; Tr. 310-11.

            Mach contested the two citations and the matter was assigned to Judge Miller. The matter proceeded to hearing before the Judge on November 3 through 5, 2009.

            The Judge affirmed the two technical citations. 32 FMSHRC at 168. She rejected Mach’s argument that the citations were void because MSHA had effectively approved its ventilation plan when it terminated Order No. 8414238 on September 9, 2009. The Judge reasoned that section 75.370 requires that a ventilation plan must be approved in writing by the district manager, and it was undisputed that this had not occurred. Id. at 167. In addition, the Judge determined that Mach’s general ventilation plan that was in effect when Phillips became the district manager of District 8 was unsuitable to conditions at the mine and that MSHA’s proposed plan was suitable as to seven of nine areas of dispute. Id. at 153-64. In reaching that determination, the Judge applied the “arbitrary, capricious or abuse of discretion” standard of review applied by the Commission in Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). Id. at 162-67. She also found no merit in Mach’s argument that it should not be subject to both a base plan and a site-specific plan. Id. at 167. Finally, the Judge stated that she had refused to admit evidence during the hearing concerning ventilation plans and ventilation or dust surveys at other mines and information that had not been provided to the district manager during the course of the negotiations over the ventilation plans. Id. She explained that since she must examine whether the actions of the district manager were arbitrary and capricious, she must consider how he made his decision based on the information he had before him, and that the excluded evidence was not relevant to the decision regarding suitability of provisions at Mach’s mine. Id.

            Mach petitioned for review of the Judge’s decision, which the Commission granted.

II.

Disposition

A.        Whether termination of Order No. 8414238 amounted to approval of Mach’s ventilation plan?

            Mach contends that MSHA’s September 9 termination of Order No. 8414238 constituted approval of Mach’s ventilation plan with respect to both the base and site-specific issues. It explains that Order No. 8414238 alleged that no approved ventilation plan was in place for HG 3 on March 13, 2009. The operator submits that because a termination means that the allegedly violative condition (mining without an approved plan) has been abated, the termination of the order on September 9 (M. Ex. 46) constituted a writing indicating that the proposed ventilation plan had been approved. Mach maintains that because its ventilation plan had been approved, the two subject citations for mining without an approved plan are void.

            The Secretary responds that the termination of the order did not constitute written notification of the disputed plans’ approval as required by 30 C.F.R. § 75.370(c)(1). For the reasons set forth more fully in our decision issued this date in Mach Mining, LLC, Docket Nos. LAKE 2010-190 and 2009-716-R, we agree with the Secretary.

             Briefly, section 75.370(c)(1) provides in part that, “The district manager will notify the operator in writing of the approval or denial of approval of a proposed ventilation plan or proposed revision.” 30 C.F.R. § 75.370(c)(1). By its terms, section 75.370(c)(1) clearly requires a written notification to an operator by the district manager that a ventilation plan has been approved or that approval has been denied. The standard sets forth two enforcement paths: approval of a ventilation plan or denial of approval of a ventilation plan, either of which must be taken by a written notification by the district manager. It does not provide for a constructive or implied approval process.

            Here, the terms for approval required by section 75.370(c)(1) were not met. There was no written notification by the district manager approving Mach’s ventilation plan for Panel 3. The termination of Order No. 8414238 was written by MSHA Inspector Bobby Jones, not the district manager. Moreover, the termination simply stated, “MSHA hereby terminates this order” and did not address the proposed plan, much less approve it. Mach Mining, LLC, 34 FMSHRC      , slip op. at 6, No. LAKE 2010-190 (Aug. 9, 2012).

            Accordingly, we affirm the Judge’s determination that the termination of Order No. 8414238 did not amount to approval of Mach’s ventilation base and site-specific plans.

            B.        Whether the Judge applied the correct standard in reviewing the district manager’s denial of approval of the plans?

            The Judge applied an “arbitrary, capricious or abuse of discretion” standard in reviewing the district manager’s denial of approval of Mach’s ventilation plans. She stated that the issue was “whether the Secretary properly exercised her discretion and judgment in the plan approval process.” 32 FMSHRC at 162. The Judge reasoned that “the Secretary must show that the actions of the district manager were not arbitrary and capricious in his review and decision-making regarding the plan and its suitability.” Id. at 163. She explained that the district manager must examine the relevant data and articulate a satisfactory explanation for the action taken including a rational connection between the facts and the choice made. Id. at 165.

            Mach argues that the Judge erred in applying an arbitrary and capricious standard. The operator maintains that such a standard is applicable only to emergency response plan (“ERP”) cases, while in ventilation plan cases, the Secretary bears the burden of proving by a preponderance of the evidence the unsuitability of the operator’s plan and the suitability of MSHA’s plan.

            The Secretary responds that the arbitrary and capricious standard applies to the district manager’s determination of a ventilation plan’s suitability or non-suitability. The Secretary maintains that the arbitrary and capricious standard is not confined to ERP cases, and that when the Commission applied the standard in the first ERP case, Emerald Coal Res., LP, 29 FMSHRC 956, 966 (Dec. 2007), the Commission held that application of the standard was consistent with prior Commission precedent.

            We conclude that the Judge applied the correct standard of review. The question before the Judge was whether the Secretary proved that MSHA’s action in denying approval of Mach’s proposed plans submitted on June 4 and September 3 was not arbitrary, capricious or an abuse of discretion. As the Judge recognized (32 FMSHRC at 165), the Commission has previously explained that under an arbitrary and capricious standard, an “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Twentymile, 30 FMSHRC at 754, 773-74 (citations omitted).

            The application of this standard to the review of a ventilation plan’s provisions is supported by the plain language of section 303(o) of the Mine Act. That section provides:

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 Secretary shall be adopted by the operator and set out in printed form within ninety days after the operative date of this title. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least every six months.

30 U.S.C. § 863(o) (emphasis added). The requirement in section 303(o) that a plan approved by the Secretary must be adopted by the operator and that the plan must contain such information “as the Secretary may require” shows that the Secretary exercises discretion in determining ventilation plan contents and that an operator must comply with a plan approved by the Secretary. Since the Secretary is exercising discretion in determining which provisions should be included in a ventilation plan, it is appropriate to review that exercise against an “arbitrary, capricious or abuse of discretion” standard.

            The application of an arbitrary and capricious standard to the review of the district manager’s approval or denial of a proposed ventilation plan is also supported by the legislative history of the Mine Act. The Senate Committee Report on the Mine Act stated that “while the operator proposes a plan and is entitled, as are the miners and representatives of miners to further consultation with the Secretary over revisions, the Secretary must independently exercise his judgment with respect to the content of such plans in connection with his final approval of the plan.” S. Rep. No. 95-181, at 25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978).

            In considering this language, the D.C. Circuit observed 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.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989). Thus, MSHA and an operator are not on equal footing in negotiating a ventilation plan’s contents. See also C.W. Mining Co., 18 FMSHRC 1740, 1746 (Oct. 1996) (referring to legislative history and recognizing that “the Secretary is [not] in the same position as a private party conducting arm’s length negotiations in a free market”). An arbitrary and capricious standard is a more deferential standard, which allows appropriate weight to be accorded to the Secretary’s position of “retain[ing] final responsibility for deciding what ha[s] to be included in the plan.” UMWA v. Dole, supra, 870 F.2d at 669 n.10; see Contractors Sand and Gravel, Inc., 20 FMSHRC 960, 966 (Sept. 1998) (recognizing arbitrary and capricious standard as more deferential).

            The application of an “arbitrary, capricious or abuse of discretion” standard is consistent with Commission precedent, which recognizes the Secretary’s role in the plan approval process. As the Commission has explained, “absent 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.” C.W. Mining, 18 FMSHRC at 1746. The Commission has applied this standard in reviewing the Secretary’s denial of approval of an Emergency Response Plan in recognition that the plan approval process involves an element of judgment on the Secretary’s part. Emerald Coal, 29 FMSHRC at 966; Twentymile, 30 FMSHRC at 747-49. The Commission explained that an arbitrary and capricious 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 standard.” Emerald Coal, 29 FMSHRC at 966; see also Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983) (concluding that MSHA’s withdrawal of approval of a water impoundment plan was not “arbitrary and capricious”).

            Finally, the application of the arbitrary and capricious standard is consistent with court precedent. The D.C. Circuit has reviewed the Secretary’s insistence upon the inclusion of a plan provision under this standard. See UMWA v. Dole, supra, 870 F.2d at 671 (“. . . the Secretary could abuse her discretion by utilizing plans rather than explicit mandatory standards to impose general requirements if by doing so she circumvented procedural requirements for establishing mandatory standards.”); see also Peabody Coal Co. v. FMSHRC, 111 F.3d 963, 1997 WL 159436 (D.C. Cir. 1997) (reviewing MSHA’s insistence on a provision in a ventilation plan under an arbitrary and capricious standard of review).

            Accordingly, we conclude that the Judge applied the correct standard of review in her consideration of MSHA’s denial of Mach’s proposed ventilation plans. We turn now to the specific plan provisions at issue.

            C.        Whether the Judge correctly determined that the district manager was not arbitrary or capricious and that the district manager did not abuse his discretion in denying approval of Mach’s proposed plans

            Preliminarily, it appears that the Judge may not have considered the provisions of Mach’s proposed plans submitted on June 4 and September 3, 2009 in her determination of whether the district manager was arbitrary or capricious or abused his discretion in denying approval of the plans. Rather, the Judge stated that she considered the plan that was already in existence when District Manager Phillips came to District 8. See 32 FMSHRC at 162 (in the section titled “Unsuitability of the Current Mach Plan,” (emphasis added), the Judge states, “The ventilation plan that was in place at the Mach #1 Mine was found to be unsuitable in a number of ways.”). Except where specifically indicated below, we consider such error to be harmless.

                        1.         Bleeder evaluation points

            In his letter dated August 6, 2009, District Manager Phillips provided Mach with two alternatives for determining the effectiveness of the bleeder system for Panel 3. Gov’t Ex. 11. The first alternative required Mach to submit a map showing Panels 3, 4, 5, and 6 developed to a depth of 19,000 feet and showing new bleeder entries 1,000 feet behind Panels 1 and 2, which connect to each of the three existing gate entries (TG 1, HG 1, HG 2). Gov’t Ex. 11 at 1. The second alternative required Mach to submit a plan connecting HG 3 to the existing bleeder entry for HG 2 in a wrap-around fashion, showing an evaluation point (“EP”) at the stair step point where the bleeder of HG 3 intersects with the existing bleeder system at HG 2. Id.

            In the proposed site-specific plan submitted on September 3, Mach set forth provisions consistent with the second alternative. Gov’t Ex. 2 at 1. Mach indicated that it would connect HG 3 to the existing bleeder entry for HG 2 in a wrap-around fashion. Id. The proposal did not, however, include the EP at the stair step that MSHA had required. Id.

            On September 29, 2009, District Manager Phillips sent Mach a letter, rejecting Mach’s proposed base and site-specific ventilation plans in part because they showed inadequate evaluation points in the bleeder system. Gov’t Ex. 12 at 2-3. On the same date, MSHA cited Mach for the same plan deficiencies. See Item No. 1 of Citation No. 6680550; Item No. 6 of Citation No. 6680551.

            At the hearing, MSHA described the EP that it required Mach to adopt. MSHA proposed that Mach establish a permanent EP at the back of HG 2, near cross-cut No. 161. S. Post-Hr’g Br. at 9; Tr. 202, 209; M. Ex. 101. Dennis Beiter, the supervisor of the ventilation division at MSHA’s Pittsburgh Safety and Health Technology Center, testified that a permanent EP would be required at the same location (behind the middle entry) at the back of HG 4, 5, and 6. Tr. 136, 234-37, 243-44.

            Mach submits that pursuant to section 75.364(a)(2)(iv), it developed an alternative method of bleeder system evaluation that does not require a miner to enter the bleeder system to make the required evaluation. Instead, Mach would evaluate its system at strategic points around the perimeter, including at the shaft on the surface where air exits the mine. By taking such measurements around the perimeter, Mach would avoid exposing its miners to the hazardous roof conditions in the bleeders. Mach contends that there was insufficient weight given to the gravity of the roof hazards to which Mach is seeking to avoid exposing its miners.

            We conclude that the Judge correctly determined that the district manager did not abuse his discretion by requiring additional evaluation points in the bleeder system. 32 FMSHRC at 165-66. We find substantial evidence in the record to support the Judge’s conclusion that Mach’s method of evaluating the effectiveness of the bleeder system was unsuitable and MSHA’s proposal was suitable to conditions at the mine. 32 FMSHRC at 155-58, 162-64.

            MSHA’s ventilation expert, Beiter, testified that an EP at crosscut 161 in the stair step behind HG 2 was critical to evaluating the effectiveness of the bleeder system. Tr. 226, 276. Beiter testified that the air from the caved area moved through the middle entry of each gate entry, and that it was important to take measurements where the middle entry intersected the bleeder entry in order to evaluate the airflow from the worked out area. Tr. 187, 240-41. He explained that as each successive panel is mined, the ventilation system becomes more complex. Tr. 223-24. Beiter testified that such information could not be obtained at the top of the system. Tr. 224. The Judge credited Beiter’s testimony, concluding that the evaluation points recommended by Beiter gave a complete view of the effectiveness of the bleeder system. 32 FMSHRC at 158.

            There is no reason to overturn the Judge’s credibility determination. See, e.g., Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992) (stating that judge’s credibility determinations are entitled to great weight and may not be overturned lightly). Mach’s expert, Gary Hartsog, acknowledged that taking measurements at the exhaust fan would not indicate where, and in what quality, the air has traveled in the bleeders. Tr. 574-76; 32 FMSHRC at 158. Although two ventilation surveys conducted in March 31 through April 2, 2009 and June 9 through 11, 2009, recognized that the bleeder system was effective on the dates of the survey, the report of the June survey concluded that the “adequacy of the airflow distribution in the bleeder system and the dilution of methane elsewhere in the bleeder system in addition to the 30 C.F.R. Part 75.323(e) location(s), could not be determined from information collected [by the mine] at the required weekly examination locations for the bleeder system.” 32 FMSHRC at 157, quoting Gov’t Ex. 5 at 8.

            In addition, there is evidence in the record that establishes that MSHA adequately considered the hazards posed by the roof conditions in the bleeder system. In MSHA’s September 29, 2009, letter rejecting Mach’s proposed plan, District Manager Phillips acknowledged the severe roof conditions:

The continuing deterioration of the mine roof and the existing roof falls prevent proper bleeder and gob system evaluation. These worsening roof conditions threaten the viability of these entries to service projected panels #3, #4, #5, and #6 and are reasonably likely to threaten the internal flow paths of the worked-out panels of HG #1 and HG #2.

Gov’t Ex. 12 at 3. As Beiter testified, MSHA concluded that if the roof conditions prevented access to MSHA’s proposed EP, “that was such a critical piece of information that proper evaluation could not be conducted without that information,” Tr. 276, and the bleeder and gob system would have to be sealed. Id. Thus, MSHA considered that there were hazardous roof conditions but determined that if measurements could not be taken at MSHA’s proposed EP in the stair step, the bleeder system must be sealed.

            Such evidence shows that MSHA examined the relevant data and articulated a satisfactory explanation for its requirement of additional EPs in the bleeder system. Accordingly, we affirm the Judge’s determination that the district manager did not abuse his discretion in requiring the additional EPs.

                        2.         Ventilation controls in the bleeder entries

            MSHA cited Mach for failing to include sufficient bleeder controls to control air movement in the bleeder system in both its proposed site-specific plan for Panel 3 and its general base plan. See item No. 2 of Citation No. 668550; item No. 15 of Citation No. 6680551.

            Mach argues that it should not be required to use ventilation controls at the back of Panel 3. It contends that Panels 1 and 2 were mined without ventilation controls safely and effectively, and that there is no evidence that the additional 1,000 feet of Panel 3 will adversely affect Mach’s system. The operator emphasizes that MSHA’s ventilation expert, Beiter, admitted that the ventilation controls proposed for the bleeder entries are “not necessarily” needed. It maintains that MSHA is requiring them only because erecting regulators and stoppings is a typical practice in other mines.

            The Secretary asserts that the Judge properly found that she had demonstrated the need for ventilation controls in the bleeder entries. She submits that Beiter explained that because of the stair step configuration of the bleeder system, ventilation controls were needed to ensure that air does not short circuit through the caved area, and to ensure that air travels around the corner of the stair step.

            We conclude that there is not sufficient clarity in the record and in the Judge’s analysis to permit us to review this issue. It is not clear in the record which ventilation controls were being required by MSHA.

            The proposed site-specific plan that Mach submitted on September 3 showed stoppings in HG 2 between entries 1 and 2 from crosscut 162 to crosscut 176, and ventilation controls across entries 2 and 3 between crosscuts 161 and 162. Tr. 195-96. Mach submitted three maps that showed that the ventilation controls would remain in place until the longwall had retreated past the stair step, and then the ventilation controls would be removed. Gov’t Ex. 2, Attachs (labeled “Exhibits”) 1, 2, 3; Tr. 195, 196.

            Beiter explained that the stair step needed to be ventilated like a wrap-around bleeder. Tr. 196. Air must be moved for a distance of approximately 19,000 feet, north across the back bleeder entry of Panel 3 for a distance of approximately 1,250 feet (the width of the panel), then outby HG 2 for a distance of 1,000 feet (the distance that HG 2 was mined beyond Panels 1 and 2), and then north into the existing bleeder entries and across two worked-out panels to the bleeder shaft. S. Post-Hr’g Br. at 12. Beiter testified that the stoppings that are shown in the map submitted by Mach (Gov’t Ex. 2, Attach 1) “are critical to establishing ventilation through the worked out area of panel number one through the mining of panel number three through the mining of panel number three past the stair step.” Tr. 196. Beiter also stated, “The stoppings that . . . we talked about earlier from in the stair step . . . [–] those are critical ventilation controls that are necessary for the mining of panel 3 at least through the stair step.” Tr. 205 (emphasis added).

            Given Beiter’s testimony, it would appear MSHA is requiring Mach to maintain the ventilation controls in the stair step only until the longwall retreats past the stair step, and then it would be permissible for Mach to remove the controls. If MSHA is requiring Mach to maintain the ventilation controls only until the longwall has retreated beyond the stair step, consistent with Beiter’s testimony, then Mach submitted a plan that proposed to include the ventilation controls required by MSHA.

            With respect to other ventilation controls behind Panel 3, it is not clear from the record which specific ventilation controls were required by MSHA. Before the Judge, the parties did not specify in their briefs which ventilation controls MSHA sought to require beyond the ventilation controls that would ventilate the stair step. M. Post-Hr’g Br. at 16-18; S. Post-Hr’g Br. at 12-14. The parties referred to the ventilation controls in the bleeder entries of Panel 3 in a general manner at the hearing. Beiter testified that there were no ventilation controls behind Panel 3 in the proposed plan submitted by Mach. Tr. 205-06. When asked what ventilation controls should be in the bleeder entries of Panel 3, Beiter replied, “Controls that are sufficient to control and distribute the airflow.” Tr. 206. Beiter was asked, “as we look at [Mach’s proposed plan, Gov’t Ex. 2, Attach. 1], is there a need to separate any of the bleeder entries from another or any other ventilation controls in the bleeder entries?” Beiter replied, “Not necessarily. Just the lack of those controls across the back end limits the ability to control the airflow distribution in the system not only in the front, but also from the back so that use of those controls is a typical practice that enables more hands-on ability to control that distribution of airflow.” Tr. 206-07.

            As previously discussed, it appears that the Judge may have failed to consider the provisions that Mach submitted in its proposed September 3 plan. Rather, the Judge may have considered only Mach’s “current” plan. 32 FMSHRC at 162.

            Accordingly, we vacate the Judge’s determination that the district manager did not abuse his discretion by requiring ventilation controls in the bleeders. 32 FMSHRC at 165-66. We remand to the Judge so that she may examine the evidence and clarify which ventilation controls were required by MSHA, including whether the ventilation controls depicted in the stair-step were required to remain indefinitely. We instruct the Judge, in examining the evidence, to consider Mach’s proposed site-specific plan for Panel 3 submitted on September 3, 2009. After clarifying the ventilation controls required by MSHA, the Judge should determine whether the district manager abused his discretion in concluding that Mach’s proposed depiction of ventilation controls was unsuitable, and that the ventilation controls required by MSHA were suitable.

            We also take judicial notice of Judge Manning’s statement in his decision in Mach Mining, LLC, that in “March or April of 2010, MSHA approved the stair step design for the bleeders and Mach began mining Panel No. 3.” 34 FMSHRC at 205. Judge Miller shall take such further evidence and receive parties’ submissions as she deems necessary to determine whether the issue discussed herein is moot.

                        3.         Stoppings in the active tailgate entry

            MSHA denied approval of Mach’s proposed site-specific and base plans because they did not depict ventilation controls in the tailgate entry that would assure that air from the worked-out areas is directed away from the longwall face. See Item No. 3 of Citation No. 6680550; Item No. 14 of Citation No. 6680551.

            The Judge concluded that Mach presented no real evidence that the tailgates would be adequately ventilated without the stoppings required by MSHA. 32 FMSHRC at 159. She summarized MSHA’s evidence that the ventilation survey established that air was moving toward the active tailgate entry, rather than away from the active tailgate entry, and that stoppings should have been in place to assure the correct movement of air. Id. The Judge noted Beiter’s testimony that the stopping line required by MSHA would protect the active tailgate entry from methane and move air away from that entry, and that such ventilation controls were not included in Mach’s proposal. Id.

            Mach argues that the use of stoppings in its active tailgate would undermine its proven ventilation system. Mach states that it safely and effectively mined and ventilated the first two longwall panels without using a stopping line in the active tailgate. It submits that MSHA’s subsequent surveys showed that Mach’s ventilation system was working effectively and did not provide any evidence indicating that air flowed from the gob to the active tailgate.

            The Secretary asserts that MSHA’s ventilation surveys fully support MSHA’s position. She explains that the first ventilation survey stated that “gases exiting the adjacent worked-out area of Panel 1 into the No. 2 Entry of HG #1 . . . would flow into the tailgate travelway and be carried inby toward the longwall face.” Gov’t Ex. 4 at 7. The Secretary further contends that Beiter described the test results that led to this conclusion in his testimony. She emphasizes that similarly, the second ventilation survey showed that (according to Mach’s own pre-shift examination records), on April 2 and 4, 2009, the airflow was carrying gases “from the worked out area toward the tailgate travelway for the active longwall section.” Gov’t Ex. 5

at 7.

            At the hearing, MSHA submitted evidence demonstrating that air from the worked-out area moved toward, rather than away from, active workings. MSHA’s April 2009 survey showed that air was moving from the caved material in Panel 1 toward the active tailgate (HG 1). Gov’t Ex. 4, Figs. 4 & 5. Beiter testified that during the ventilation surveys he conducted tracer gas tests to test the movement of air. The tracer gas tests revealed that air from the worked out area of Panel 1 moved into the No. 2 entry of HG 1 and would also be carried to the No. 3 entry, which was the active tailgate travelway. Tr. 210. There was no separation between the No. 2 and 3 entries, so air moved from the No. 2 entry to the No. 3 entry. Tr. 210. The Secretary submitted to the Judge that MSHA’s smoke tests and tracer gas tests revealed that air was moving toward the active tailgate travelway in HG 1 in 26 locations. S. Post-Hr’g Br. at 16.

            Moreover, a ventilation change that occurred during the June 2009 ventilation survey showed that stoppings helped move air away from the active workings and toward the bleeder shaft. On June 9, 2009, the stoppings that had been constructed between Entries Nos. 2 and 3 in HG 2 during mining had been removed. Tr. 216; Gov’t Ex. 5, Fig. 1. On June 11, during the survey, the stoppings had been reconstructed. Tr. 217; Gov’t Ex. 5, Fig. 2. MSHA observed a significant difference in airflow patterns between June 9 and June 11. Tr. 217. Beiter testified that without the ventilation controls, air in Panel 2 would have been carried from HG 1 to HG 2 (from the worked out area to the active travelway). Tr. 218. After the controls were put in place, the pressure differential changed so that there was in increase in pressure differential across the worked out area. Tr. 221. This resulted in air moving from HG 2 to HG 1. Tr. 221. Cf. Gov’t Ex. 5, Figures 1 and 2. Beiter stated that Mach’s site-specific plan for Panel 3 and base plan did not call for the reconstruction of the stoppings. Tr. 171.

            This evidence constitutes substantial evidence supporting the Judge’s determination that there was a rational connection between the facts found and MSHA’s determination to require the ventilation controls. 32 FMSHRC at 159, 165-66. Accordingly, we affirm the Judge’s determination that the district manager was not arbitrary or capricious or abused his discretion in requiring the ventilation controls in the active tailgate.

                        4.         Use of belt air

            MSHA cited Mach for proposing in its site-specific and base plans to use air from the belt conveyor haulage entry to ventilate the longwall working section of Panel 3 without adequate justification. See Item No. 4 of Citation No. 6680550; Item No. 9 of Citation No. 6680551.

            The Judge found that although Mach had been previously approved by MSHA to use belt air to ventilate the working section of Panel 2, Mach did not justify the use of belt air to ventilate the working section of Panel 3. 32 FMSHRC at 153-54. The Judge noted that a new belt air rule, amending 30 C.F.R. § 75.350(b), had been implemented in March 2009, and that the Mach “conditional” plan had been approved prior to the new rule. Id. at 153. The Judge concluded, therefore, that the district manager did not abuse his discretion in determining that “the use of belt air needed further examination” and in denying approval of Mach’s proposed plans. Id. at 165.

            Mach argues that the Judge’s finding that it did not justify the use of belt air is not supported by substantial evidence. Mach explains that it submitted a justification with its proposed ventilation plan on June 4, explaining to MSHA the hazards associated with eliminating the use of belt air. It states that if it were not permitted to use belt air, the chances would increase for methane accumulations at the face; respirable dust would increase on the face; the chance of dead spots and air reversals in adjoining entries would increase; and air in the escapeways would be compromised.

            The Secretary responds that Mach failed as a matter of law to establish a justification for the use of belt air, in that Mach did not address how its ventilation system provided the same level of protection against smoke and fire risks involved with using belt air.

            We begin our analysis with the language of 30 C.F.R. § 75.350(b), which sets forth the requirements regarding belt air. That section states in part:

The use of air from a belt air course to ventilate a working section . . . shall be permitted only when evaluated and approved by the district manager in the mine ventilation plan. The mine operator must provide justification in the plan that the use of air from a belt entry would afford at least the same measure of protection as where belt haulage entries are not used to ventilate working places.

30 C.F.R. § 75.350(b) (emphasis added).

            We conclude that Mach failed to comply with the requirements of the standard in order to justify its use of belt air in Panel 3. As District Manager Phillips testified, MSHA’s new belt air rule requires that operators address the hazard of fire and smoke from using belt air. Tr. 314-17. As stated in the preamble to the new belt air regulation, “[t]here are potential sources of fire in belt conveyor entries, and the use of air from the belt entry to ventilate working sections can result in contaminants from a fire being carried to the working section.” 73 Fed. Reg. 80580, 80592 (Dec. 31, 2008). Mach did not provide a justification that would demonstrate that using belt air to ventilate the working section of Panel 3 would provide the same level of safety, in terms of the hazard of fire and smoke, as an entry not using belt air. Rather, the operator focuses on other potential dangers that could occur if it is not allowed to use belt air.

            Accordingly, we affirm the Judge’s determination that the district manager did not act arbitrarily, capriciously or abuse his discretion in denying approval of Mach’s proposed plans and in requiring Mach to provide further justification for the use of belt air.

                        5.         Requirement to identify means of compliance with 30 C.F.R. § 75.332

            MSHA cited Mach for failing to specify its means of compliance with 30 C.F.R. § 75.332(a)(2). See Item No. 1 of Citation No. 6680551. Section 75.332 requires in part that, “[w]hen two or more sets of mining equipment are simultaneously engaged in . . . mining, . . . within the same working section, each set of mining equipment shall be on a separate split of intake air.” 30 C.F.R. § 75.332(a)(2).

            It is undisputed that on about June 16, 2009, MSHA Inspector Keith Roberts issued an order to Mach alleging that Mach violated section 75.332(a)(2) by operating two continuous miners on a single split of air. Mach contested the order. S. Br. at 26 n.15; Tr. 57-58.

            The Judge concluded that it was appropriate for MSHA to require Mach to include a provision requiring that Mach specify its means of complying with the standard. 32 FMSHRC at 161. She reasoned that Inspector Roberts, in advising the district manager to include the provision, explained that MSHA wants to assure that the mine has a plan in place to deal with two continuous miners working on the same split of air. Id.

            Mach argues that there is no basis for requiring it to specify the means of compliance with section 75.332 in its ventilation plan. It acknowledges that it is required under the standard to not allow two or more mining machines to operate at the same time on the same split of air. The operator explains that it uses a “go/no go” system to ensure that its two continuous miners do not operate simultaneously on a single split of air, and that MSHA conceded that such a system is an acceptable means of complying with the standard.

            The Secretary responds that where, as here, Mach had been recently cited for violating section 75.332(a)(2), it was entirely rational for the district manager to require Mach to include in its plan a provision specifying its means of compliance.

            Consistent with 30 C.F.R. § 75.371, the Commission has explained that plan provisions may both implement “the substantive provisions of the Secretary’s regulations and criteria” and “provide for protection in addition to those standards.” C.W. Mining, 18 FMSHRC at 1745. MSHA is not requiring Mach to include a plan provision that reiterates the requirements of section 75.332(a)(2). Rather, MSHA is requiring Mach to adopt a plan provision that specifies how it will implement the section. Given that Mach had been cited for violating section 75.332(a)(2), the district manager did not abuse his discretion in requiring inclusion of the provision. Accordingly, we affirm the Judge’s determination.

                        6.         Ventilation of idle places and places where the roof bolter operates

             MSHA cited Mach for not providing an adequate means of ventilating idle places and places where the roof bolter operates. See Item No. 3 of Citation No. 6680551.

            The Judge concluded that the district manager did not abuse his discretion in determining that the plan change requested by MSHA – that the area where roof bolters are operating must be ventilated by a line curtain – was suitable to the mine. 32 FMSHRC at 165-66. The Judge noted Mach’s contention that, by not using the line curtain, the operator avoids directing dust from the continuous miners that may be working in the area on to the roof bolters; that the mine has not experienced a methane buildup in idle areas or areas where roof bolts are being installed; and that roof bolting machines are equipped with methane monitors. Id. at 160. However, the Judge found persuasive the Secretary’s argument that it would be safer to avoid a methane buildup in idle areas than to not have a curtain for fear of more dust reaching the roof bolter. Id. at 161.

             Mach asserts that there is no basis for requiring it to change its plan with respect to ventilating idle places and places where the roof bolter is operating. Mach argues that it “has no history of methane in its development sections, either in idle rooms (places that have been cut but not bolted) or where roof bolters are working, and therefore does not direct air into those places by . . . a line curtain.” PDR at 31. Mach emphasizes that by not using the line curtain, it avoids directing respirable dust from the continuous mining machines on to its roof bolters, and that the Judge ignored this evidence. The operator contends that Inspector Roberts made the recommendation to District Manager Phillips and that neither was aware of the lack of methane accumulations at the mine. Mach argues that Inspector Roberts based his recommendation on conditions at other mines, and that such conditions are irrelevant to Mach’s mine.

            Substantial evidence in the record reveals a rational connection between conditions at the mine and the district manager’s determination that the plan provision must be included because it was suitable to conditions at the mine. Inspector Roberts testified that places that are advanced to greater depths, such as more than 20 feet inby the rib, have more potential to accumulate methane if inadequately ventilated. Tr. 66. He stated that Mach’s mine was gassy and subject to spot inspections. Tr. 66-67. Roberts further testified that in Mach’s developmental entries, the distance between crosscuts is typically 120 feet, and that the area is advanced approximately 30 to 40 feet inby where the next projected crosscut would be. Tr. 68. Roberts explained that when the continuous mining machine is in that working place, a ventilation control device is installed to provide ventilation for both methane and dust control purposes, but that once the continuous mining machine is withdrawn, there is no requirement to maintain the curtain. Tr. 68. He observed that, as a result, there could be an area of 150 to 160 feet of entry, 8 to 10 feet high, 18 to 20 feet wide, with no air being forced into it to dilute and sweep the methane. Tr. 68. Roberts testified that roof bolting, by its nature can be spark-producing, and that the curtain could be adjusted so that only a portion of the ventilating current (and whatever dust it carried) would travel up the curtain. Tr. 69, 71.

            In addition, it appears that only a portion of the air, and therefore, only a portion of the respirable dust, would be moved toward the roof bolt operator if the curtain were adjusted. Mach’s general manager, Webb, acknowledged that the line curtain could be adjusted to decrease the amount of respirable dust that reaches the roof bolter. Tr. 368, 440-41. He also stated that there is a dust collection system on the bolter that collects dust. Tr. 442. Moreover, the ability to measure methane does not offer the same protection as adequately ventilating an area. As Roberts testified, “methane testing is a supplement to and not a substitute for the . . . adequate ventilation of working places.” Tr. 94. Accordingly, we affirm the Judge’s determination that the district manager did not act arbitrarily or capriciously in requiring Mach’s plan to include a provision requiring the ventilation of idle places and where the roof bolter operates.

                        7.         Inclusion of depth-of-water action level

            In its June 4 submittal of its proposed base ventilation plan, Mach provided that, whenever the depth of water in the travelable bleeder entry exceeded 12 inches for a distance of 100 feet from rib to rib, pumps or bridges would be used to reduce the water. Gov’t Ex. 1 at 3 of 30; Tr. 411-12. MSHA denied approval of the proposal and cited Mach for including a depth-of-water action level in its proposed plan. Gov’t Ex. 12 at 2; see Item No. 4 of Citation No. 6680551.

            The Judge stated that MSHA refused the provision as an attempt by Mach to circumvent the requirements of 30 C.F.R. § 75.371(aa), which requires an operator to include in its ventilation plan “[t]he means for adequately maintaining bleeder entries free of obstructions such as roof falls and standing water.” 32 FMSHRC at 161. The Judge concluded that the district manager was well within his discretion to deny a proposed plan that places limits on a mandatory standard. Id.

            Mach’s proposed provision is unsuitable as a matter of law because section 75.371(aa) does not speak in terms of action levels, but rather requires operators to specify in a ventilation plan the means for maintaining bleeder entries free from obstructions of water. Thus, we affirm the Judge’s determination that the district manager did not abuse his discretion in denying approval of Mach’s proposed provision.

            D.        Whether Mach may permissibly be subject to both a site-specific ventilation plan and a general ventilation plan?

            The Judge found no merit in Mach’s argument that it should not be subject to both a general plan and a site-specific plan for Panel 3. 32 FMSHRC at 167. She reasoned that separating the discussions regarding Panel 3 from the general plan provided Mach with an opportunity to focus on what was most important to it, i.e., having a plan in place to move forward with its mining schedule. Id.

            Mach asserts that the Judge’s conclusion that MSHA may impose upon Mach more than one ventilation plan is erroneous. PDR at 33. The operator explains that MSHA has forced it to address general issues typically encountered on development sections in the base plan, while issues relating to each longwall panel are addressed in the site-specific plan. Id. It contends that the Mine Act and its regulations contemplate a single, mine-wide ventilation plan. Id. Mach also submits that this practice is inconsistent with the procedures set forth in MSHA’s Mine Ventilation Approval Procedures Handbook No. PH92-V-6, available at http://www.msha.gov/READROOM/HANDBOOK/PH92-V-6.pdf (“MSHA’s Handbook”). Id. at 34.

            The Secretary responds that neither section 303(o) of the Mine Act, 30 U.S.C. § 863(o), nor section 75.370(a)(1) requires a single, mine-wide ventilation plan. She interprets section 75.370(a)(1) to permit both a base and a site-specific ventilation plan, and to permit panel-by-panel approval of plans. The Secretary submits that her interpretation is consistent with procedures in MSHA’s Handbook.

            Section 303(o) of the Mine Act was carried over unchanged from section 303(o) of the Federal Coal Mine Safety and Health Act of 1969, 30 U.S.C. § 801 et seq. (1976) (“1969 Coal Act”). Section 303(o) of the Mine Act provides:

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 Secretary shall be adopted by the operator and set out in printed form within ninety days after the operative date of this title. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least every six months.

30 U.S.C. § 863(o) (emphasis added). Although section 303(o) refers to a “ventilation plan” in the singular, the section refers to revisions of the plan, so that a ventilation plan could encompass multiple revised versions of the plan.

            Similarly, regulations implementing section 303(o) of the Mine Act refer to a ventilation plan in the singular. See 30 C.F.R. §§ 75.370, 75.371, 75.372. However, such regulations also provide that a mine ventilation plan may encompass multiple revised versions of the plan. For instance, section 75.370(a)(2) provides:

The proposed ventilation plan and any revision to the plan shall be submitted in writing to the district manager. When revisions to a ventilation plan are proposed, only the revised pages, maps, or sketches of the plan need to be submitted. When required in writing by the district manager, the operator shall submit a fully revised plan by consolidating the plan and all revisions in an orderly manner and by deleting all outdated material.

30 C.F.R. § 75.370(a)(2).

            The statutory and regulatory language above does not clearly address this issue, and we conclude that the Secretary’s interpretation of section 303(o) of the Mine Act and section 75.370 is reasonable and entitled to deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994). The statutory and regulatory context of the term “ventilation plan” reveals that such a plan need not be a single plan, but may be a compilation of multiple plans. 

            Moreover, contrary to Mach’s assertion, the Secretary’s interpretation is consistent with MSHA’s Handbook. MSHA’s Handbook indicates that the district manager has discretion to determine whether the general plan is adequate and to determine when one plan will not suffice. MSHA’s Handbook, Ch. 7 (“Specific plans should not be required when the general plan is adequate.”) (emphasis added). For instance, a district manager may require the submission of a ventilation plan on a panel-by-panel basis when the entire bleeder system design and mining projections are not shown on a general map. Id. Mach’s mine illustrates such circumstances since the ventilation system employed by Mach is not a traditional system (32 FMSHRC at 151, 165; Tr. 632), and ventilation of the system becomes more complex as each subsequent panel is mined. 32 FMSHRC at 164; Tr. 223.

            Accordingly, we affirm the Judge’s determination that MSHA may permissibly require Mach to have a site-specific plan in addition to a general plan.

            E.        Whether the Judge erred by excluding certain evidence and expert witness testimony?

            During the course of the hearing, Mach attempted to introduce evidence concerning the ventilation plans at other mines, ventilation or dust surveys at other mines, and information that had not been provided to the district manager during the course of the negotiations regarding Mach’s ventilation plans. 32 FMSHRC at 167. The Judge explained that she refused to allow that evidence because it was not relevant to the decision regarding the circumstances and suitability of the plan to Mach’s mine. Id. She reasoned that while many plans are based on the experiences at other mines, it is extremely unlikely that two underground coal mines would present exactly the same factual situation and the same needs in their ventilation plans. Id. The Judge further stated that since she must examine whether the actions of the district manager were arbitrary or capricious, she must consider how the district manager made his decision, what he had before him at the time, and what information he used. Id. She stated that any document generated after that time was not relevant and would not assist her in making an informed decision. Id. The Judge thus reasoned that the testimony of former District Manager Lawless had no probative value because he did not have the same information before him as District Manager Phillips did. Id.

            Mach argues that it was prejudiced by the Judge’s exclusion of evidence and expert testimony. It asserts that her exclusion of evidence not specifically submitted to MSHA overlooks the purpose of a de novo hearing. It contends that the Judge’s exclusion of testimony of Mr. Lawless about his knowledge of the plan approval process and the proper roles of MSHA and operators in that process limited Mach’s ability to demonstrate “the full picture of MSHA’s unlawful conduct.” PDR at 35.

            Under 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. Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000) (citations omitted).

            The Commission addressed a similar question in Twentymile, 30 FMSHRC at 764-66, 778-79. Consistent with the opinion of Chairman Jordan and Commissioner Cohen in that decision, we conclude that the Judge did not abuse her discretion in excluding the evidence that had not been presented to MSHA before September 29, 2009. The Judge had a legally correct basis for excluding evidence regarding plans and surveys at other mines since only conditions at Mach’s mine are relevant to the district manager’s determination of which plan provisions should be approved or denied approval. The ventilation system at Mach’s mine was somewhat novel so that comparison with the ventilation plans and surveys of other mines would be of limited, if any, value.

            In any event, the Judge did not wholly exclude such evidence. The Judge stated that she would not review other mines’ ventilation plans but she permitted witnesses to rely upon their experiences with other mines. Tr. 247. In addition, although Mach could not submit any of the information relied upon by Hartsog in his testimony because such information had not been presented to MSHA before September 29, 2009, the Judge considered the conclusions reached by Hartsog regarding Mach’s proposed plans. Tr. 497-98, 570-73.

            Regarding whether the Judge erred in excluding former District Manager Lawless’ testimony regarding his knowledge of the plan approval process and the proper roles of MSHA and operators in that process, such matters are legal rather than factual and need not be developed as testimony in a record. Moreover, a comparison of decisions among district managers could potentially have a detrimental impact on safety. As Chairman Jordan and Commissioner Cohen said in Twentymile:

[D]istrict [m]anagers are individuals. Like baseball umpires, they each have a slightly different strike zone. Additionally, there are differences from mine to mine, and the ERP for each mine must be considered on its own merits. If we tell administrative law judges that, in weighing whether a particular [d]istrict [m]anager acted in an arbitrary and capricious manner, they should consider what other [d]istrict [m]anagers do in allegedly comparable situations, it would encourage a race to the bottom. That is, a [d]istrict [m]anager would necessarily have to be looking over his or her shoulder to consider whether his or her decision would eventually be found arbitrary and capricious because it was more stringent than the decision of another [d]istrict [m]anager. A [d]istrict [m]anager in this situation would have an inducement to shade the requirements of the law in an operator’s favor so as to avoid unfavorable comparison with other [d]istrict [m]anagers. This would lead to the standard essentially being set by the most lenient [d]istrict [m]anager, a process which would be detrimental to mine safety.

30 FMSHRC at 765-66. Accordingly, we conclude that the Judge did not err in her exclusion of evidence and testimony.

III.

Conclusion

            For the foregoing reasons, we affirm the Judge’s determination that the termination of Order No. 8414238 did not amount to approval of Mach’s ventilation plans. We affirm the judge’s application of the arbitrary, capricious or abuse of discretion standard to her review of the district manager’s denial of Mach’s proposed ventilation plans. As more particularly stated in this decision, we affirm the Judge’s determination that the district manager did not act arbitrarily or capriciously or abuse his discretion with respect to the plan provisions regarding bleeder evaluation points, stoppings in the active tailgate entry, use of belt air, requirement to identify means of compliance with section 75.332, the ventilation of idle places and places where the roof bolter operates, and the inclusion of a depth-of-water action level. We vacate the Judge’s determination regarding ventilation controls in the bleeder entries and remand for further action as described in this decision. We affirm the Judge’s determination that MSHA may permissibly require Mach to have a site-specific ventilation plan in addition to a general ventilation plan. Finally, we conclude that the Judge did not err in her exclusion of evidence and testimony. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioners Duffy and Young, concurring in part and dissenting in part:

            We join our colleagues in the results they reach in Parts II.A, D, and E of their opinion. We agree that the termination of Order No. 8414238 did not constitute approval of Mach’s ventilation plan; that MSHA may require both a general mine ventilation plan and a more specific plan for certain parts of a mine; and that the judge did not abuse her discretion in excluding certain evidence and expert witness testimony.

            We cannot agree, however, with our colleagues’ disposition of the primary issue in this case, which is the judge’s decision on the ventilation plan approval dispute between MSHA and the operator. In our opinion, the judge committed fundamental errors in affirming Citation Nos. 6680550 and 6680551. Consequently we would vacate the judge’s decision and remand it so those errors can be rectified.

            The underground coal mine ventilation plan approval process is governed by section 303(o) of the Mine Act, 30 U.S.C. § 863(o), along with implementing regulations, including the standard Mach was found to have violated here, 30 C.F.R. § 75.370(d). Under the process, an operator submits a proposed ventilation plan or revisions to that plan to MSHA for approval. When MSHA rejects a plan or a revision of a plan, it and the operator are then required to negotiate in good faith. Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985).

            As outlined in the majority opinion, this is what occurred in this case with respect to the dispute between MSHA and Mach over the latter’s ventilation plan for its mine’s longwall Panel 3: Mach proposed to ventilate the panel the same way it did the first two panels, MSHA rejected that proposal, and Mach submitted ventilation plan revisions. When the two parties reached an impasse, consistent with the further procedure outlined in Carbon County, Mach mined without the required plan approval in order that MSHA could issue it a technical citation and the dispute could be litigated before the Commission.

            According to the judge, and now the majority, the Commission resolves the dispute merely by determining whether MSHA acted “arbitrarily and capriciously” or “abused its discretion” in rejecting the operator’s proposed plan as unsuitable and imposing an alternative plan the agency deemed suitable. 32 FMSHRC at 165-66; slip op. at 6-9. The majority recognizes that such standards are exceedingly deferential (slip op. at 8), as they essentially place the burden on the operator to demonstrate to the judge hearing the case that MSHA erred. See UMWA v. Dole, 870 F.2d 662, 666 (D.C. Cir. 1989) (arbitrary and capricious standard is “highly deferential and presumes the validity of agency action”); Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 (Dec. 2000) (abuse of discretion can only be found when there is no evidence to support the decision or if the decision is based on an improper understanding of the law). Given the terms of the Mine Act and established Commission procedure and precedent, we disagree that the application of the arbitrary and capricious or abuse of discretion standards to MSHA’s actions and decisions is the appropriate way to resolve a dispute over the substance of a ventilation plan.

            To be sure, application of the arbitrary and capricious standard has a role in the mine plan dispute process. Where the question is solely one of the procedure followed, such as whether the parties negotiated a plan’s provisions in good faith, the Commission has applied the arbitrary and capricious standard. See C.W. Mining Co., 18 FMSHRC 1740, 1746-47 (Oct. 1996). Moreover, should a breakdown in the process be traceable to the operator’s conduct in the negotiations, MSHA is free to withdraw approval of an existing plan as long as it does not do so in an arbitrary or capricious manner. See Monterery Coal Co., 5 FMSHRC 1010, 1019 (June 1983).

            Beyond the issue of whether MSHA and an operator cooperated in the mine plan approval process, however, is the substance of the dispute, which the Commission has recognized is an entirely separate matter. See Peabody Coal Co., 15 FMSHRC 381, 388 (Mar. 1993) (“Peabody I”). With regard to ventilation, section 75.370(d)’s proviso that “[n]o proposed ventilation plan shall be implemented before it is approved by the [MSHA] district manager” is derived from the language of section 303(o) of the Mine Act. It requires that “[a] ventilation system and methane dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and approved by the Secretary shall be adopted by the operator.” 30 U.S.C. § 863(o).

            In remanding the case to the judge in Peabody I, the Commission was unequivocal that, with regard to whether a plan provision urged by MSHA is suitable to conditions at a mine, “the Secretary bears the burden of proving that a plan provision is suitable to a mine.” 15 FMSHRC at 388. It did so because in any enforcement action before the Commission (which is how ventilation plan disputes are resolved), the Secretary bears the burden of proof. Id. (citing Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987)).

            Furthermore, in reviewing the judge’s decision on remand in Peabody I, the Commission (with the Secretary’s acquiescence) made the corollary holding the Secretary also bore the burden of proving to the judge that an operator’s proposed plan or revision was unsuitable to the mine. Peabody Coal Co.,18 FMSHRC 686, 690 (May 1996) (“Peabody II”). The Commission then reviewed the judge’s findings that the previously approved plan was unsuitable and the new provision was suitable against the substantial evidence standard. Id. at 691.

            Unlike the judge and the majority, we do not read intervening decisions to have disturbed the Peabody case holdings with regard to the burden the Secretary bears in substantive ventilation plan disputes. The majority, like the judge and the Secretary, points to our decisions in Emerald Coal Res., LP, 29 FMSHRC 956, 966 (Dec. 2007), and Twentymile., 30 FMSHRC at 748, as having established that the Commission applies an arbitrary and capricious standard of review to the MSHA district manager’s decisions when resolving the substance of a plan dispute between MSHA and an operator. Slip op. at 7. We do not read those decisions, which were rendered with regard to a new and very distinctly different type of mine plan – emergency response plans, also known as “ERPs” – as having overturned the Commission’s prior holdings in the Peabody cases.

            Application of an arbitrary and capricious standard of review to the Secretary’s actions in ERP approval cases is appropriate because the statutory language permits it. Unlike with mine ventilation plans, neither the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”) amendments to the Mine Act that instituted the ERP requirements, nor any applicable regulations, require the Secretary to make determinations that various ERP provisions are suitable to the mine submitting the ERP for approval. See 30 U.S.C. § 876. Without that requirement, and the fact-finding it necessitates in a plan-approval dispute case, there is no need for the Secretary to bear the burden of proof the Commission imposed on her in the Peabody cases.

            Instead, the inquiry in an ERP approval case extends no further than to an examination of whether MSHA properly interpreted the statutory criteria that govern emergency response plans and the circumstances of the approval process. See Emerald, 29 FMSHRC at 966-970; Twentymile, 30 FMSHRC at 749-53. The more deferential arbitrary and capricious standard is plainly appropriate to such a limited inquiry.

            That the ERP approval process is substantively different from the ventilation plan approval process is further evidenced by the Commission’s docket. Ventilation plan disputes have for years been the subject of Commission proceedings. After an initial flurry of ERP disputes following the institution of ERP requirements, the Commission cases on ERP disputes decreased dramatically. That is most likely because the ERPs are not a dynamic subject area, while ventilation plans, as this case shows, most clearly are so. See slip op. at 2 (“The method for ventilating this mine is new to the mining industry.”).

            Not surprisingly given the subject matter of the cases, neither of the ERP approval cases addressed the issue that is before us, which is the standard of review to be applied to MSHA-operator disputes over the substance of proposed ventilation plans. That standard was established in the Peabody cases, and the majority errs in being essentially silent on why it is reversing the governing Commission precedent. See Pendley v. FMSHRC, 601 F.3d 417, 426, 427 (6th Cir. 2010) (Commission cannot depart from its own applicable precedent without articulating a reasoned basis for doing so).

            Because the judge applied the wrong standard of review to the MSHA district manager’s decisions on both the unsuitability of Mach’s proposed ventilation plan and the suitability of the plan imposed by the district manager, we would vacate the judge’s decision upholding the citations and remand the case to her to apply the proper standard of review. We would also specify in the remand that the judge is to review the district manager’s decision on the unsuitability not of the plan as originally proposed by Mach, which was a continuation of the plan that governed the first two panels, but rather the plan as it was subsequently proposed to be revised by Mach in response to MSHA’s rejection of the continuation of the existing plan. Tr. 47; Gov’t Ex. 2.

            While the judge’s decision at its outset acknowledges the proposed revisions (32 FMSHRC at 153), it is clear that the judge’s review of the district manager’s decisions was limited to the unsuitability of the existing Mach plan, and not as it would be revised with respect to Panel 3. See 32 FMSHRC at 162-63. To the extent the judge ignored plan revisions proposed by Mach in upholding the district manager on the issue of unsuitability of Mach’s plan, she plainly erred, regardless of the standard of review she applied, and her decision merits remand on that basis alone. Given that the judge ignored the standard of review established by the Peabody cases, we cannot agree with the majority that her error in failing to review the correct pieces of evidence that were before her was harmless under these circumstances. See slip op. at 10.

            Because we believe that the judge failed to apply the proper standard of review to the decision of the MSHA district manager or even to examine Mach’s proposed plan as the operator revised it during the required negotiations, we will not address in detail the separate matters of substance on which the judge and the Commission here upheld the MSHA district manager. Indeed, a number of the issues may now be moot. See slip op. at 15. However, the issues merit some discussion to demonstrate the differences that can result from applying a higher or lower standard of review to the district manager’s decision.

            A.        Bleeder evaluation points

            With regard to Issue #1 in Citation No. 6680550 (Panel 3) and Issue #6 in Citation No. 6680551 (general plan), the majority affirms the judge’s finding that the district manager did not abuse his discretion by requiring additional evaluation points in the bleeder system. Slip op. at 10-13; 32 FMSHRC at 155-59. As the majority explains, this dispute centers around whether the ventilation plan should include a requirement obligating a Mach miner to travel to a specific bleeder evaluation point (“EP”) in its “wrap-around” bleeder system, in order to take weekly measurements at that EP, or, as Mach proposed, whether it is sufficient for the operator to measure the adequacy of the bleeder from outside and thus protect Mach personnel from the roof hazards within its bleeder system. Slip op. at 11-12.

            Clearly, this issue requires a judge to review the district manager’s decision to weigh the relative dangers of the two approaches. Because the judge did not apply a preponderance of the evidence standard with regard to the suitability of competing proposals to the mine in question, however, she largely avoided doing so.

            Instead, by applying the lower abuse of discretion standard, the judge focused on whether MSHA acted rationally in its decision. Because there was evidence to support MSHA’s conclusion that evaluating the bleeder at the point it specified would provide better information than the alternative proposed by Mach, that was enough for the judge, and is enough for the majority. See slip op. at 12-13; 32 FMSHRC at 158.

            There is little in the judge’s decision to indicate that she considered the issue of the dangers roof conditions in the bleeders would pose to miners traveling to the EPs. The Secretary concedes as much when she argues that the judge should be upheld because the operator, in proposing an alternative method of evaluation, bears the burden of proving that the alternate means was suitable. S. Br. at 11 (citing Jim Walter Res., Inc., 12 FMSHRC 1354, 1357 (June 1990) (ALJ)). As discussed, the Commission decided in Peabody that the burden of proof instead remains with the Secretary throughout the ventilation plan approval process.

            Moreover, given the standard of review the judge applied to the district manager’s decision, she essentially left unaddressed whether the EP specified by MSHA would be suitable to the conditions at Mach’s mine, given the adverse roof conditions in the bleeder entries. There is no dispute that the roof conditions in the bleeder entries were adverse. Tr. 233-34, 325, 382-83. Mach’s experience in Panels 1 and 2 reveal considerable roof falls. Tr. 154, 156-57. The Secretary conceded in her post-hearing brief that “Mach’s own geology reports reveal the likelihood of continued roof support issues for Panel # 3.” S. Post-Hr’g Br. at 11 (citing Gov’t Ex. 6). The district manager’s letter of September 29, 2009, also acknowledged the severe roof conditions:

The continuing deterioration of the mine roof and the existing roof falls prevent proper bleeder and gob system evaluation. These worsening roof conditions threaten the viability of these entries to service projected panels #3, #4, #5, and #6 and are reasonably likely to threaten the internal flow paths of the worked-out panels of HG #1 and HG #2.

Gov’t Ex. 12, at 3. Further, MSHA’s expert witness Dennis Beiter testified that he believed that the EP in the stairstep at crosscut 161 would be appropriate if travel to the area could be made safely. Tr. 225.

            While Mach has a duty to control its roof independent from its duty to determine the effectiveness of its bleeder system (see 30 C.F.R. § 75.220(a)(1)), that does not mean that Mach’s concerns for the safety of its miners traveling to an EP should be ignored. Here the judge did just that. While the majority concludes that MSHA examined the relevant data and articulated a satisfactory explanation for its requirement of additional EPs in the bleeder system, that does necessarily mean that the Secretary carried her burden of proof with respect to the issue.

            B.        Stoppings in the active tailgate entry

            With regard to Issue #3 in Citation No. 6680550 (Panel 3) and Issue #14 in Citation No. 6680551 (general plan), the dispute is over whether ventilation controls in the tailgate entry, such as stoppings, are necessary to adequately ventilate the tailgate entry between it and adjacent worked-out areas in order to assure that air from the worked-out areas will not be directed to the longwall face. The majority upholds the judge’s conclusion that the district manager did not abuse his discretion in requiring such controls. Slip op. at 15-17.

            In our opinion, the record evidence the majority cites in support of its holding – particularly the results of the various ventilation surveys – is more than sufficient to show that not only did the district manager not act arbitrarily or capriciously, but that the Secretary established by a preponderance of the evidence that Mach’s proposed plan provision was unsuitable and the provision the Secretary was requiring was suitable for the mine. Consequently, it is likely that the judge would have reached the same conclusion on the issue even if she had reviewed the district manager’s decision under the higher standard we believe is required in plan approval cases such as this.

C.        Use of belt air

            As the majority explains, Issue #4 in Citation No. 6680550 (Panel 3) and Issue #9 in Citation No. 6680551 (general plan) turn on whether Mach offered the justification required by 30 C.F.R. § 75.350(b) for using belt air to ventilate the longwall working section. Slip op. at 17-18. The question of whether Mach offered that justification (as oppose to the strength of the justification offered) would be resolved the same way under an arbitrary and capricious standard as it would under a preponderance of the evidences standard. Consequently, the judge likely would have reached the same conclusion on the issue as she did even if she had applied the preponderance of the evidence standard.

            D.        Requirement to specify means of compliance with 30 C.F.R. § 75.332

            Issue #1 in Citation No. 6680551 (general plan) concerns MSHA’s requirement that Mach’s plan specify the operator’s means of compliance with 30 C.F.R. § 75.332(a)(2), which governs the simultaneous use of mining equipment within the same working section. At the time of the judge’s decision there was a contest pending of an MSHA citation for the mine having recently operated two continuous miners on a single split of air. The Judge concluded that it was appropriate for MSHA to require Mach to include a provision requiring that it specify its means of complying with the standard. 32 FMSHRC at 161.

            We are not at all certain that the provision at issue is a proper subject of a ventilation plan. While the majority approves it because it does more than incorporate section 75.332(a)(2) into the plan (see slip op. at 18-19), we do not necessarily agree that it is proper for MSHA to use the ventilation plan process to impose upon an operator a duty to provide information regarding its compliance with applicable law. That Mach may have violated the regulation once in the past is irrelevant, because regardless of previous violations, an operator is required to comply with section 75.332(a)(2) on an ongoing basis.

            Moreover, it is not clear that the provision was suitable to conditions at Mach’s mine. The judge failed to make a finding regarding whether the plan provision was suitable to a mine that had just one unresolved allegation of violation of the regulation at issue. Again, this seems to be an instance where the standard of review applied to the district manager’s decision made quite a difference in the judge’s decision.

            E.        Ventilation of idle places and places where roof bolter operates

            This dispute, Issue No. 3 of Citation No. 6680551 (general plan), concerns Mach’s ventilation of idle places and places where the roof bolter operates. The judge concluded that the district manager did not abuse his discretion in determining that the plan change requested by MSHA – that the area where roofbolters are operating must be ventilated by a line curtain – was suitable to the mine, and the majority upholds the judge’s conclusion. 32 FMSHRC at 160-61, 165-66; slip op. at 19-20.

            In our opinion, the resolution of this issue clearly hinged on the degree of deference the judge showed towards the district manager in reviewing his decision. We do not disagree that the district manager had a legitimate concern regarding the potential for a methane buildup in idle areas in the time preceding roof bolting operations, and thus he was not acting arbitrarily or capriciously in requiring Mach to use line curtain. Unlike under the arbitrary and capricious standard, however, that is not the end of the inquiry. Here, Mach also had legitimate concerns, specifically regarding dust control, and submitted rebuttal evidence on the potential for methane buildup. A preponderance of the evidence standard would require the judge to balance’s Mach’s concerns with the evidence on the potential for methane buildup in the idle areas that could be ignited by sparks resulting from the roof bolting (including evidence Mach submitted on the lack of a history of methane in idle places in the mine, and the fact that its roof bolter is equipped with a methane monitor).

            Moreover it appears to us that in this instance application of the more deferential standard of review permitted the district manager’s decision to evade review of whether he was focused on suitability of the plan provision in question to this mine. It may be that the judge would have come out the same way on the preponderance of the evidence standard. That is impossible to know, however, absent remand to her to apply that standard of review.

            F.        Inclusion of a depth-of-water action level

            Issue #4 in Citation No. 6680551 involves the dispute over MSHA’s requirement for a depth-of-water action level be included in the ventilation plan, and Mach’s proposed plan provision that would allow the accumulation of up to 12 inches of water on the mine floor before any action in response by it would be required. The judge concluded that the district manager was well within his discretion to deny the proposed provision as it would circumvent the requirement in 30 C.F.R. § 75.371(aa) that an operator include in its ventilation plan “[t]he means for adequately maintaining bleeder entries free of obstructions such as roof falls and standing water.” 32 FMSHRC at 161.

            The judge reviewed the contentions of both parties on whether it was safe to permit up to 12 inches of water on the mine floor before addressing the situation with pumps and other means of reducing the depth of the water. There is substantial record evidence that the Secretary demonstrated that it would not be safe to permit such accumulations before acting. Accordingly, in this instance it does not appear that the standard of review that was applied would have made a difference.

/s/ Michael F. Duffy

Michael F. Duffy, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution:

W. Christian Schumann, Esq.

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-22

Daniel W. Wolff, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Brian A. Glasser, Esq.

Jonathan D. Boggs, Esq.

Bailey & Glasser, LLP

209 Capitol Street

Charleston, WV 25301

Christopher D. Pence, Esq.

Betts Hardy & Rogers, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333-3394

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 80202-2500