FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710
SECRETARY
OF LABOR, :
MINE
SAFETY AND HEALTH :
ADMINISTRATION
(MSHA) : Docket No. LAKE 2019-0087-R
:
v.
:
:
KNIGHT
HAWK COAL, LLC :
BEFORE:
Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY:
Rajkovich, Chairman; Young and Althen, Commissioners
This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The Mine Act requires every
underground coal mine operator to adopt a ventilation plan “suitable to the
conditions and the mining system of the coal mine and approved by the Secretary
[of Labor].” 30 U.S.C. § 863(o). This matter concerns the ventilation plan for
Knight Hawk Coal’s Prairie Eagle Underground Mine (“PEUM”).
In
2018, the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
conducted a ventilation survey at PEUM and alleged certain deficiencies with
the mine’s long approved ventilation plan. After a series of correspondence and
conferences, MSHA revoked the mine’s ventilation plan and issued a technical
citation for operating without an approved plan in violation of 30 C.F.R. §
75.370(a)(1).[1]
Ventilation plans must address the effectiveness of bleeder systems, which in
turn must continuously dilute and move methane-air mixtures and other gases,
dusts, and fumes from a worked-out area away from active workings and into a
return air course or to the surface of the mine. See 30 C.F.R. §§
75.334(b)(1), (c)(2). [2]
The
Judge found MSHA’s revocation of the plan to be arbitrary and capricious and
vacated the revocation. 41 FMSHRC 522, 560 (Aug. 2019) (ALJ) (Amended Decision
and Order). For the reasons below, we affirm the judgment below.
I.
Factual and Procedural Background
- Background
on PEUM and Perimeter Mining
PEUM engages in
“perimeter mining” which is “a special variant of the room-and-pillar method”
of mining.[3]
The mine layout for perimeter mining is very similar to a typical
room-and-pillar “checkerboard” panel mining design.[4] Except
as described below, this form of mining essentially is no different in concept
from traditional room-and-pillar mining.[5]
The
exception is during the retreat mining phase.[6] In traditional
room-and-pillar mining, entire pillars may be removed during retreat, allowing
the roof to eventually collapse. During retreat in perimeter mining, however,
individual cuts of coal are only taken peripherally from the edge of a block or
panel into the surrounding solid coal and from a few of the interior barrier
pillars between blocks.[7]
At PEUM, these additional cuts are taken after the entries, crosscuts,
and pillars are developed in advance mining and while “retreating” from each
particular “block” within a panel. The individual pillars are left intact and
unmined to support the roof, even after abandonment of each individual block. Except
for the cuts taken into the interior barrier pillars, those barrier pillars are
left intact, as well. Since the pillars and barriers are left to support the
roof, perimeter mining has less caving of the mined area than other forms of
retreat mining; as a result, the entries and crosscuts within each block may
remain relatively open—subject to deterioration, over time, as any worked-out
area.
At
PEUM, the development plan for a Perimeter Mining Panel consists of a
main section of entries, crosscuts and pillars. Off both sides of the main
section, at right angles, additional successive shorter-length blocks of
entries, crosscuts and pillars are driven and developed.[8] Once
each shorter block (3 to 7 entries wide, 6 crosscuts deep) is developed, and before
development of the next successive block, the “retreat” phase of perimeter
mining is initiated. These additional dead-end cuts are made into the
extremities of the solid coal around the undeveloped perimeter of each block.
At PEUM, under
the previously approved plan, these perimeter cuts could extend to 40 feet in
depth. 41 FMSHRC at 530. Because there will be no further advance into these
cuts, nor any access by any miner, the roofs are not bolted, and entry is not
permitted. It is uncontested that perimeter mining is safer than other forms of
retreat mining. It provides lower exposure to hazards that might occur during
roof bolting or working around moving equipment in potentially unsafe areas
such as “red zones.” It also affords lower exposure to respirable dust and
noise. Sec’y Ex. 2 at 3-6. Perimeter mining further provides the advantage of
protecting valuable surface farmland from subsurface subsidence.[9] Thus, it
allows for the recovery of the energy resource while protecting farmers and the
environment.
PEUM received
conditional approval to begin perimeter mining 14 years ago in 2006.[10]
MSHA District 8 granted unconditional approval 4 years later in 2010, and again
in 2015. During the relevant period, in addition to PEUM, perimeter mining was
being conducted in two other mines in MSHA District 8, namely, Peabody’s
Gateway North Mine, and ICG Illinois’ Viper Mine. Each of those approvals
involved the same system of mining that is the subject of this case.
In 2013, MSHA
issued Program Policy Letter P13-V-12 (“the PPL”) regarding bleeder systems. The
PPL changed MSHA’s prior position by asserting, for the first time, an expanded
definition of “pillared areas.” The new definition, in general, viewed each of
the entries and crosscuts in any mined area as “pillared areas” subject to
bleeder system requirements, whether the actual pillars were cut and/or fully
extracted. Sec’y Ex. 13 at 3. This new definition by MSHA would require
information on airflow throughout the individual entries and crosscuts
in the worked-out area to be provided in the ventilation plan whereas 30 C.F.R.
§75.334(b)(1) requires airflow through the worked-out area. Knight
Hawk’s expert, Gary Hartsog, testified without contradiction that the PPL
redefined what constituted a “bleeder entry.” Tr. 493-94.
The PEUM
Perimeter Mining Plan did not include the full extraction of any individual
pillar. In fact, the only “extraction” in the retreat mining phase of
PEUM’s perimeter mining is within the 40-foot long, 20-foot wide extended cuts
along the periphery into the solid coal and a few interior barriers. Hartsog
testified that despite this difference, perimeter cuts, along with the entries
and crosscuts within the interiors of blocks, are actually abandoned areas
likened to the “gob” in longwall mining.[11] Tr. 474. In longwall
mining, airflow is evaluated by measuring the airflow going in and out
of a gob area, as a whole. Hartsog testified that, as with a longwall
gob, ventilation in an area worked-out by perimeter mining should be evaluated
in the same manner, consistent with 30 C.F.R. § 75.334(b)(1) that requires
airflow “through” the worked-out areas, rather than measuring within each
and every entry and crosscut within the blocks. Tr. 473-81, 516-17. PEUM’s
approved plan followed this ventilation scheme for years. Evaluation points
were specifically noted in the plan for the explicit purpose of measuring
quantity and quality of air moving into a perimeter mined area and
for measuring quantity and quality of air moving out of a perimeter
mined area. See, e.g., Ex. P-30 at 8. Importantly, the Judge
accepted and credited Hartsog’s testimony that the PPL changed the definition
of a bleeder system to include areas commonly understood to be “gob.” 41 FMSHRC
at 532.
The Judge also
credited testimony that the mine’s characteristics demonstrated an unlikelihood
of ignitions or combustions. Hartsog testified that the mine’s roof and floor
are primarily composed of soft clay and limestone, and therefore it would be
unlikely that falling material would result in a spark. Tr. 492-93. Additionally,
the mine has low methane liberation and had no history of spontaneous
combustion at the time when the plan was revoked.[12] Tr. 174,
246; Sec’y Ex. 2 at 6.
- Ventilation
Survey, Plan Review, and Plan Revocation
1. The Survey and
Contentions
In 2017, a
different mine, the Gateway North mine (owned by Peabody Coal Company),
submitted a plan to include 40-foot long perimeter cuts. MSHA District 8
Manager Ronald Burns ordered a survey at that mine. Burns felt the results
raised concerns regarding 40-foot cut perimeter mining, so he decided to
conduct surveys at Viper Mine and PEUM, as well. Tr. 42-46, 159-66.
On January 9-10,
2018, MSHA’s Safety and Health Technology Center conducted a ventilation survey
of PEUM. The investigation team was headed by Dennis Beiter, a mining engineer
with the ventilation division. The team included MSHA Ventilation Specialists
John Hohn and Mike Pritchard and MSHA General Engineer Diane Doyle-Coombs, as
well as other MSHA personnel. The MSHA team did not include any ventilation
specialists from MSHA District 8. MSHA personnel were joined on the first day
by PEUM Mine Superintendent Thomas Hasenstab and Knight Hawk Corporate Safety
Director William Jankousky. It is this survey that forms the basis as to
whether the revocation of the PEUM plan was arbitrary and capricious.
During the
survey, the team primarily used chemical smoke tests to determine airflow
velocity and direction at various locations within the entries, crosscuts, and
perimeter cuts of a block and measured air quality with handheld devices and
bottle samples. The team also conducted these smoke tests at the ends of the 40-foot
perimeter cuts using a probe with a 44-foot extension fitted with two cap lamps
attached to the end of the probe. Tr. 52-53, 118, 122, 256-57. The smoke was released
from a tube at the end of the extension. Team observers, 44 feet away, would
attempt to see the movement of the smoke—whether the smoke moved left or right,
indicating airflow, or whether it rose to the roof and dissipated, indicating
no airflow. Tr. 48-53, 122-23. This method, however, generated disputed
testimony regarding the ability to make such observations so far away and
whether MSHA supervisors asserted pressure on the MSHA team members to make
findings in accord with Team Leader Beiter’s expectations.
Thus, the MSHA
team was attempting to see smoke movement at the end of a 40 foot darkened
tunnel from a vantage point that was approximately 44 feet away, and the only
form of illumination was from a pair of cap lights on the probe itself. Tr. 52-
53, 122, 257.[13]
Not unexpectedly, therefore, the results of the smoke tests were not always
repeatable. Tr. 561-62.
More
significantly, the members of the MSHA team were not always in agreement as to
the results of the tests. Tr. 541-44. Mine Superintendent Hasenstab testified
that there were disagreements among the MSHA survey team members regarding
perceptible movement and “general uncertainty in regards to movement or no
movement.” Tr. 299. Notably, on several occasions, MSHA engineer Doyle-Coombs
initially determined that there was perceptible movement but Beiter would later
disagree, even though he was not observing at the same time as Doyle-Coombs. Tr.
378-79. Safety Director Jankousky testified that Doyle-Coombs became visibly
upset when Beiter overruled her observations and then directed that some of her
notes be rewritten. Beiter directed that some of her observations, or those of
Knight Hawk’s representatives, be changed to conform to his interpretations. Tr.
389-90, 567-68.[14]
Beiter testified that there initially was disagreement among MSHA personnel
regarding airflow, but that he “explained” the expected phenomenon to them. Tr.
104-105.
MSHA’s
survey team did not use tracer gas[15]
even though Beiter agreed that tracer gas is used when airflow is
indeterminate. Tr. 573. PEUM’s ventilation expert witness Hartsog emphasized
this failure to use tracer gas (Tr. 532) since results can be difficult to
determine from distances of 44 feet or more using smoke as in this survey (Tr.
520). Thus, Hartsog testified he probably would have used tracer gas. Tr. 533. Arguably,
such a test would have supplied more accurate data when compared to the
disputed and variable results obtained by MSHA’s testing methods in this
survey.
The preliminary
results of the survey were conveyed to Knight Hawk at a meeting on January 29,
2018, and the finalized survey report was issued on February 8, 2019. Tr.
93-95, 169. The survey showed that the highest concentration of methane,
particularly at the end of the 40-foot perimeter cuts, was 0.12%—far below an
explosive level of 5%. The lowest concentration of oxygen was measured at
20.2%, also well within safe limits. Beiter admitted that the survey indicated
“controlled airflow” in that air was being routed through the entire panel from
active workings to the surface. Tr. 95-98, 138-39.
Despite his
testimony that air was being effectively routed through the entire panel and
the controversy related to smoke tests in the perimeter cut, Beiter maintained
that the smoke tests showed no perceptible movement in some locations within
the worked-out area and that air was flowing in multiple directions at once in
others. Tr. 64-65, 83-85. Despite the overall flow of air, Beiter asserted that
“in the detailed sense,” the survey results showed “no rhyme or reason” to
direction of airflow within perimeter cuts and within entries and crosscuts of
blocks, and therefore did not allow for evaluation of the adequacy of
ventilation airflow through portions of the worked-out area. Tr. 96-97. He
admitted, however, that in other retreat mining systems, such as longwall
mining, it is not possible to detect the specific airflow throughout the
gob in a worked-out area. Tr. 139.
2. The Plan Review
and Revocation
After the report
was issued, Knight Hawk and MSHA exchanged a series of letters. MSHA’s letters
outlined the alleged deficiencies subsequently listed in the technical citation
in increasing levels of detail. Knight Hawk alleged that the report contained
opinion, speculation, and assumed definitions and designations of the terms
“pillared areas, bleeder entries, partial recovery second mining, and return
air split.” Sec’y Ex. 2 at 7. Knight Hawk also argued that the report contained
conflicting information and inaccuracies between the report and the sketches of
the ventilation plan. Id.
Knight Hawk
emphasized the safety benefits of perimeter mining and further claimed that the
mine’s ventilation plan was effective because any gases that might be present
were being diluted and routed away from active workings. It further noted that
the mine had never experienced any spontaneous combustion events. It also
documented, with extensive detail, the safety record of perimeter mining, in
general.[16]
MSHA District Manager Burns conceded that perimeter mining “is a safe form of
mining” and provides less exposure to certain hazards released into the air
than other forms of mining. Tr. 173, 224.
Nevertheless,
MSHA demanded a showing of the actual direction of airflow throughout every
area of the “pillared” previously mined areas. Knight Hawk proposed one
modification in response to the MSHA letters, which was to add fuller
descriptions of the direction of air through worked-out areas. MSHA rejected
the proposal as not being an appropriate substitute for “arrows” showing the
actual direction of the airflow. Tr. 238.
On
October 22, 2018, MSHA notified Knight Hawk that, absent proposed modifications
addressing the deficiencies, the plan would be revoked. On November 14, 2018,
MSHA revoked the mine’s ventilation plan, approved an interim plan (which does
not include perimeter mining), and issued a technical citation. The citation
asserts five deficiencies: (1) the design of the bleeder system did not control
air direction throughout the blocks; (2) a method to control air movement to
ventilate extended depth perimeter cuts within the “pillared area” has not been
provided; (3) air direction through blocks, including the “pillared areas”
within each block, was not shown on plan drawings or the ventilation map
(noting that information on direction of airflow is necessary for proper
evaluation of bleeder system effectiveness); (4) air direction at evaluation
points was not shown in the plan drawings or map (noting the same); and (5) the
specified means of evaluating ventilation in the worked-out area did not
provide sufficient information to determine the effectiveness of the bleeder
system. Sec’y Ex. 11 at 1-3.
In setting out these five
alleged deficiencies, the citation refers to multiple separate sections of the
underground coal mine safety regulations at 30 CFR Part 75.[17] 30
C.F.R. § 75.334(b) is the primary regulation invoked by the citation as it
requires that during any reduction in pillar size during retreat mining—that is,
when there is “pillar recovery”—air must move from the worked-out area into a
return air course or the surface of the mine.[18] The other regulatory
sections referenced in the citation refer to requirements for the contents of
the plan document showing the direction of air, air control devices, and means
for evaluating airflow.
MSHA complains
that the plan did not specify particular directional airflow throughout
the worked-out area, meaning every entry, crosscut and perimeter cut within the
worked-out areas of each block. Those alleged issues all related to one alleged
hazard—the possibility of a buildup of methane. Regarding methane, MSHA took
methane readings throughout the section. In all these methane measurements
taken at sites in the various entries, crosscuts, and fullest extent of the
perimeter cuts, there was no hint of a buildup of methane. Indeed, the methane
measurements taken by MSHA at various points in the area were far below any
danger threshold. Moreover, the mining conditions regarding the composition of
the roof and floor did not provide any reason to suspect an actual hazard could
arise from any identifiable ignition source and methane concentration. Thus, no
evidence demonstrated any danger of a methane buildup in the worked-out area or
extended cuts.
- The Judge’s Decision and Arguments
on Appeal
The
Judge found that MSHA’s decision to revoke the operator’s ventilation plan
rested on the survey results. Although airflow did go “through” the worked-out
area as required by section 75.334(b)(1), MSHA decided that the bleeder system
failed because the plan did not adequately show the direction of air “throughout”
the entries, crosscuts and perimeter cuts of the mined area. This finding was
made despite the regulation’s requirement of flow through the block. 41
FMSHRC at 549. The Judge, significantly, observed that Section 75.334(b)(1)
does not require a showing that ventilation pass “throughout” the
block as the District Manager asserted, but rather that air pass “through
the mined area”—a condition that the operator’s plan achieved. Id. at
541-42, 549. The evidence was clear that air did flow through the mined area. He
found that MSHA’s revocation of the plan was arbitrary and capricious in three
respects under the framework for the arbitrary and capricious standard analysis
described in Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto
Ins., 463 U.S. 29, 43 (1983). 41 FMSHRC at 548-49. Moreover, as stated
above, none of MSHA’s tests showed any danger or probability of a methane
accumulation in the mined areas.
First,
based upon the evidence, the Judge found the tests used in the survey were
unreliable and unreasonably biased against perimeter mining. As a corollary, he
found that MSHA would not have used smoke tests with other forms of retreat
mining and that it was arbitrary and capricious to impose additional testing
requirements on perimeter mining without a satisfactory explanation of the need
for such tests. Id. at 549-51.
Second,
the Judge found that MSHA failed to consider important factors, namely the
safety benefits of perimeter mining, the failure to use more relevant tracer
gas tests, and differences of opinion among the MSHA survey team itself. Id.
at 552-54. Third, he found that MSHA had offered explanations for revoking the
plan that were counter to the evidence, in that the record did not establish
non-compliance with the regulations. Id. at 555-59.
As
a final matter, the Judge did not accept the Secretary’s reliance on MSHA’s
amended PPL to argue for changed substantive requirements regarding ventilation
and ventilation plans. The Judge credited ventilation expert Hartsog’s
testimony that the PPL changed the definitions of a “bleeder system,” and found
that under a pre-PPL definition the survey would have found consistent air
movement in the bleeder. Id. at 559-60.[19]
Although
air unarguably passed through the worked-out area, MSHA maintained that
it could not determine the exact direction of airflow throughout all of
the entries and crosscuts surrounding the unmined pillars and in the perimeter
cuts. The Secretary argues that MSHA articulated satisfactory explanations for
these determinations based on the survey results, and therefore the revocation
was not arbitrary.[20]
The
Secretary states that the survey was reliable and unaffected by bias, arguing that
smoke tests are a common assessment tool and that it was imperative to evaluate
the perimeter cuts. The Secretary adds that even if MSHA’s actions have the
effect of eliminating perimeter mining, which PEUM states is the effect of
MSHA’s position, it would be to protect safety and health. Thus, the Secretary
argues that the safety and health benefits of perimeter mining during active
mining are irrelevant and that, although the record may not show non-compliance
with the relevant mandatory standards, MSHA is not required to prove a
violation to revoke a plan. As a final matter, the Secretary contends that MSHA
did not rely on the PPL to find the ventilation plan unsuitable.
Knight
Hawk counters that the mine’s ventilation was suitable and that the Judge found
the Secretary introduced no evidence demonstrating its long-approved
ventilation plan did not achieve its proper safety purposes. Knight Hawk
asserts that 30 C.F.R. § 75.334(b)(1) explicitly requires that air move from
active areas through worked-out areas and out of the mine—which the
survey results had shown to be the case.
Knight Hawk also relies upon
the Judge’s findings that the survey was unreliable and affected by bias and
states that the survey improperly applied a different standard to perimeter
mining of evaluating the airflow within a worked-out area. It points to the
very low methane levels, nature of the mine roof and floor, and safe oxygen
levels throughout the mine. Knight Hawk also cites the Judge’s findings that
the Secretary failed to consider relevant safety benefits or to establish
non-compliance with the relevant regulations. Finally, Knight Hawk states that
MSHA relied on the PPL’s new definition of a “bleeder system” to impose a duty
to evaluate airflow within all parts of the worked-out area and that the Judge
properly rejected any reliance on the PPL.
II.
Legal Framework
Section 303(o) of the Act
mandates operators to adopt a ventilation plan “suitable to the conditions and
the mining system of the coal mine and approved by the Secretary.” 30 U.S.C. §
863(o). In the absence of a statutory definition for suitability, we apply the
ordinary or dictionary meaning and define “suitable” as “adapted to a use or
purpose.” Canyon Fuel Co., LLC v. Sec'y of Labor, 894 F.3d 1279, 1288 (10th Cir. 2018).
The purpose of a
ventilation plan is to “control methane and respirable dust” so that the mine
is effectively ventilated. 30 C.F.R. § 75.370(a)(1). Effectively controlling
methane and dust serves to protect miners against the hazards of methane
accumulations, such as ignitions or explosions. See RAG Cumberland Resources
LP, 26 FMSHRC 639, 647 (Aug. 2004), aff’d, 171 Fed.Appx. 852,
853 (D.C. Cir. 2005); see also S. Rep. No. 95-181, at 41 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 629 (1978). The
ventilation regulations related to bleeder systems primarily relate to risks of
ignition or explosion arising from methane accumulation by assuring airflow through
the bleeder into a return or the surface. See RAG Cumberland Resources,
at 647 (“[W]e read section 75.334(b)(1) to require a bleeder system
to control air passing through the area and continue
to dilute and move methane-air mixtures away from active workings and into a
return or to the surface in an effective manner.”) (emphasis added).
A suitable ventilation
plan, then, is one that protects miners against health or safety hazards such
as methane ignitions or exposure to dust resulting from poor ventilation. If a
ventilation plan serves the goal of effectively controlling methane and dust,
then it achieves that purpose, is suitable, and should be approved. As we have
emphasized, the Mine Act charges the operator to develop a suitable plan. It is
the “operator’s plan.” Therefore, any decision not to approve a ventilation
plan necessarily involves a finding by the Secretary that the plan has a
deficiency which fails to address some plausible harm to miners from methane,
dust, noxious gases, or some other ventilation-related hazard, which is to say,
the denial is not based upon a reasonable fact-based concern for safety.
The current
standard of review of the Secretary’s determination not to approve a
ventilation plan is under the arbitrary and capricious standard. In turn, the
Commission then determines whether substantial evidence supports the Judge’s
finding as to whether the agency action was arbitrary and capricious. See
Prairie State Generating Co., 35 FMSHRC 1985, 1989-91 (July 2013), aff’d,
792 F.3d 82 (D.C. Cir. 2015); Mach Mining, LLC, 34 FMSHRC
1784, 1790-91 (Aug. 2012), aff’d, 728 F.3d 643 (7th Cir. 2013). Under this
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.” Mach Mining, 34 FMSHRC at 1790-91
(internal citation omitted); see also Prairie State, 792 F.3d at 92 (the
Secretary must show that the district manager “did not abuse his discretion . .
. in making his suitability determination, for instance by failing to examine
relevant facts and draw reasonable conclusions.”).
Our dissenting
colleagues are grossly mistaken in asserting that our approach is a “radical
departure from well settled authority.” It is not. Well settled authority
broadly defines the Secretary’s burden as a matter of determining suitability
and finding a rational connection between the facts and the choice made. Neither
Prairie State nor Mach Mining define unsuitability, or what
constitutes a satisfactory explanation. In fact, in accordance with
existing case law, we simply require that the Secretary prove facts sufficient to
support a finding that a long approved and long used plan poses safety issues warranting
revocation. If the Secretary cannot do so, there is obviously
no rational connection between the facts found and the choice that was made. We
apply the substantial evidence to the Administrative Law
Judge’s decision based upon the record before the Judge as to whether the
Secretary has established the requisite factual basis for revocation.
Notably, the
analysis in Prairie State focused on whether potential harms suggested
by the Secretary were supported by the record. 35 FMSHRC at 1991-93 (weighing
the relative safety of 20 and 40 foot cuts). The Secretary may articulate a
satisfactory reason as to why a plan is unsuitable explicitly by articulating a
harm that may plausibly result from the operator’s plan, or implicitly by
offering a satisfactory explanation as to why the plan is incompatible with a
statute or regulation.
Finally, our
dissenting colleagues emphasize our failure to address Peabody Coal Co.,
18 FMSHRC 686 (May 1996). The Commission in Peabody rejected the
operator’s proposal that the Secretary be required to prove the existence or
likelihood of a specific hazard. Id. at 690-92. We do not require such a
degree of proof, we require a rational basis for believing that the plan poses
a risk to miners. Moreover, the Commission’s decision in Peabody is not
governing case law with respect to the Secretary’s burden of proof. 18 FMSHRC
at 692 (requiring the Secretary to prove that the new plan provision was
suitable as well as that the previously approved plan was unsuitable, rather
than the arbitrary and capricious standard subsequently applied in the D.C.
Circuit’s decision).
As
stated above, under the arbitrary and capricious standard, an “agency must
examine the relevant data and articulate a satisfactory explanation for its
action” in disapproving the plan, “including a rational connection between the
facts found and the choice made.” Mach Mining, 34 FMSHRC at 1790-91. A plan
should only be disapproved if they are unsuitable, i.e. if it fails to serve
its intended purpose. Accordingly, the Secretary’s burden under the arbitrary
and capricious standard is to provide a satisfactory explanation by identifying
a factually supported reason for finding the plan unsuitable—that is, a
fact-based explanation for why the proposed plan could expose miners to unsafe
or unhealthful conditions.
We
emphasize that, while the Secretary need not establish by a preponderance of
the evidence that a harm is “likely” to occur, the justification for finding
the plan unsuitable must be rationally connected to the record. The arbitrary
and capricious standard requires the Secretary to identify reasonable fact-based
harm that may result from the alleged deficiencies identified in the
explanation for disapproving the plan. The Secretary justifies rejection of a
plan if there are explicitly articulated reasons that a plan may expose miners
to the dangers of inadequate ventilation. The explanation must be reasonable
and must be rationally connected to the facts.
An
agency’s decision is arbitrary and capricious if the determination was reached
through means such as flawed or inaccurate testing or the finding of
preconceived or mandated results. Other indicators of an arbitrary and
capricious determination include reliance on factors which Congress had not
intended the agency to consider, failure to consider important aspects of the
problem or explanations that run counter to the evidence. Motor Vehicle Mfrs.,
463 U.S. at 43.
III.
Disposition
For
the reasons below, we hold that substantial evidence supports the Judge’s
finding that the Secretary failed to articulate a satisfactory explanation,
rationally connected to the facts, justifying a finding that the PEUM’s
ventilation plan was unsuitable. Thus, the Secretary failed to articulate
sufficiently why the plan is not suitable to achieve the purpose of a
ventilation plan—the safe and satisfactory removal of methane, toxic gases, and
dust through the worked-out area and extended cuts and supply of a safe level
of oxygen to the miners.[23]
The Judge correctly found that in other forms of
retreat mining, the information demanded by MSHA in this case is neither
necessary nor required. 41 FMSHRC at 549-50. Worked-out areas in mines
utilizing other methods of retreat mining generally involve inaccessible gob
areas. There has been no showing that air flows uniformly through all areas of
a gob. Likewise, there has been no showing that the absence of uniform flow
would make the ventilation plan unsuitable. Consequently, the airflow
throughout the interior of previously mined areas in those circumstances
historically cannot be, and is not, evaluated. See Tr. 116-17, 221-23. Such
an informational requirement is not necessary without a showing of a need,
for safety, to require travel within worked-out areas to evaluate airflow
in entries and crosscuts. If evaluations throughout the interiors of blocks are
not necessary to detect a fact-based harm, then there is no need for examiners
to walk through worked-out areas.[24]
Thus, although
PEUM’s plan had shown for years, and continued to show, airflow and evaluation
points in worked out areas, MSHA complains that the plan did not specify
particular directional airflow throughout the worked-out area, meaning
every entry, crosscut and perimeter cut within the worked-out areas of each
block. [25]
Those alleged issues all related to one alleged hazard—the possibility of a
buildup of methane. However, MSHA’s investigation showed ventilation coursing
through the worked-out area. Although the tests conducted by MSHA were deeply
flawed,
even those tests do not support the proposition that the pattern of airflow
within perimeter cuts and through the worked-out area created any dangers for
miners. Every methane reading in perimeter cuts and other areas demonstrated
methane levels far below the danger threshold. MSHA’s survey did not reveal any
fact-based reasons to suspect that ignitions might arise as a result of the
ventilation plan. Likewise, the survey failed to render fact-based reasons that
the plan did not cause air to flow through the bleeder into a return or the
surface.[27]
The
PPL acknowledges that areas it now defines as part of the bleeder system had
previously been considered “open
areas within the worked-out area, inner bleeders, mine foreman entries, part of
the gob, or by other names.” Sec’y Ex. 13 at 3. The PPL redefined
bleeder systems to include pillared areas and thus information would now
be required on airflow within such areas to be collected. Id. at
2-3. This raises yet another interpretive complication. The only fully extracted areas here are the 40-foot
long, 20-foot wide extended cuts which are not roof-bolted and are otherwise
inaccessible. We note that substantive changes that MSHA seeks to apply as a
binding norm, such as these noted in the PPL, require notice-and-comment
rulemaking. Drummond Co., 14 FMSHRC 695 (May 1992). Despite the assertions
of our dissenting colleagues to the contrary, this is no mere “interpretation
of the regulations.” Slip op. at 24 n.10. Without question, this is a
substantive change. The
Judge correctly found that it was improper for MSHA to rely on the PPL to
revoke the plan without a reasonable fact-based finding of safety deficiencies
in the plan. 41 FMSHRC at 559.
A
ventilation plan is unsuitable if it poses or fails to address a reasonably
perceived harm based on facts in the record. See supra Part II, Legal
Framework. A proffer about the uniqueness of perimeter mining does not
sufficiently explain why perimeter mining, unlike longwall mining, should be
singled out for detailed airflow directions within and throughout the area of
completed mining from which the operator has withdrawn all miners and mining
machinery. This is especially true because the evidence demonstrated, to the
Judge’s satisfaction, that PEUM’s plan removes the small amount of methane and
other gases and provides sufficient oxygen to miners. 41 FMSHRC at 549-50.
MSHA’s
investigation did not show any prospect of an ignition or lack of oxygen in the
mine. Measurements taken at the end of the perimeter cuts did not show any
appreciable amount of methane. Only very low levels of methane were found in
any of the areas inspected. Tr. 70-71, 296, 420-21; Sec’y Ex. 1. That is
consistent with the generally low level of methane in the mine. Beiter conceded
that “in a general sense” airflow through the panel, from the working face to
the surface, was adequately controlled. Tr. 95-98, 138-39; see also Sec’y
Ex. 1 at 3 (describing adequacy of overall airflow).
Moreover,
the entire mine had low methane liberation and no history of spontaneous
combustion.[28]
Perimeter cuts are not roof-bolted, so ignition sources typically associated
with roof bolting do not exist. Tr. 374, 422. Additionally, ignition sources
associated with active mining would not be present in a worked-out area. Hartsog,
testified without contradiction that the roof and floor in this mine are
primarily composed of soft materials (clay and limestone), and therefore
falling roof materials striking the floor would be unlikely to result in a
spark. Tr. 492-93. The Judge cited testimony that any methane liberated by a
roof fall would be effectively diluted and rendered harmless, adding that the
testimony was bolstered by the results of the ventilation survey, which found
some roof falls in perimeter cuts but no elevated levels of methane. 41 FMSHRC
at 535, 545.
Conversely,
testimony from the Secretary’s witnesses as to the possibility of ignition or
explosion consists of conjecture, describing events at other mines they believe
might also happen at this mine. See Tr. 177, 228. The Secretary
speculates that pockets of methane might form in the roof above a
perimeter cut but does not provide a fact-based articulation as to how they would
form in this low methane mine. No evidence was introduced to show a harm that could
plausibly result from the ventilation plan or that methane and any other
gases are not adequately moved and diluted under the operator’s plan. See Tr.
194-95, 177, 182-83, 351-52.[29]
Thus, substantial evidence supports the Judge’s finding that the Secretary
failed to rebut Knight Hawk’s testimony regarding the low risk of dangers
associated with methane buildup in the mine at issue. 41 FMSHRC at 536.
The
Secretary actually argued that one reason the standard approach used by PEUM is
insufficient for perimeter mining is that perimeter mining offers a unique
accessibility to the worked-out area thereby providing an opportunity, and
hence an obligation, to gather additional information. Given the form of
retreat mining used at PEUM, MSHA saw a limited opportunity for entry into
certain parts of a worked-out area before the entire Perimeter Mining Panel
being sealed at the end of the retreat mining cycle.[30] Having
seized the opportunity, MSHA now seeks to impose requirements on PEUM beyond
those required for retreat mining in ventilation plans. MSHA, however, may not
impose unnecessary requirements in a ventilation plan to aid its research. This
is especially true when such travel creates an additional exposure to
conditions for examiners without an offsetting safety benefit overall.
The
Judge also concluded that MSHA failed to explain why the revocation satisfied
the “no-less protection” standard under 30 U.S.C. § 811(a)(9). Id. at
551-53. We agree. In fact, not only has the Secretary failed to identify a plausible
harm arising from the alleged deficiencies as required to meet his burden under
the arbitrary and capricious standard, the Secretary would impose requirements
on the mine that potentially places a measure of unnecessary exposure on PEUM
examiners. In this new interpretation, the Secretary appears to represent that
MSHA does not demand that every entry and crosscut in a worked-out area
of a perimeter mining panel be examined. Contrary to that assertion, however,
Beiter stated that examiners would be expected to travel within the
previously mined areas of blocks for bleeder system evaluations. Tr. 60-63. Our dissenting
colleagues assert that these blocks in perimeter mining are “uniquely
accessible.” Slip op. at 23. That ignores the fact that, as previously noted,
the roof conditions in these abandoned areas surrounding these blocks continue
to deteriorate, potentially rendering them dangerously inaccessible.
A satisfactory
explanation as to why the operator’s plan is unsuitable would articulate, at a
minimum, how harms might plausibly result in this mine from the level of
airflow in perimeter cuts, not making airflow evaluations in the worked-out area,
or the absence of a map arrow indicating the specific direction of airflow
throughout the entries and crosscuts of the worked-out area. Here,
there was an existing framework satisfactorily used for years conforming to
applicable regulations—one that effectively monitored airflow through a
worked-out area while limiting the examiner’s exposure to obvious deteriorating
conditions over time. In this case, the Secretary has not provided the
necessary explanation as to why that plan was unsuitable either because it does
not comply with the substantive requirements of 30 C.F.R. § 75.374(b) or
creates plausible dangers of a methane buildup.
The
Commission finds, therefore, that substantial evidence supports the Judge’s conclusion.
The Secretary failed to articulate reasons, rationally supported by the facts,
as to why the ventilation approach used at PEUM, which is also used in other
forms of mining, does not protect miners in this mine. This is particularly so
given the evidence demonstrates a safe supply of oxygen and virtually no risk
of a methane-generated incident or any other ventilation-related hazards under
the operator’s existing plan. The Secretary has not only failed to show a reasonably
possible harm rationally connected to the facts as required to establish that
the operator’s plan is unsuitable, but would impose requirements that could
potentially increase danger. Therefore, considering the evidence and the
findings of the Judge, the revocation of the operator’s plan was arbitrary and
capricious.[31]
IV.
Conclusion
For
the foregoing reasons, substantial evidence supports the Judge’s finding that
the Secretary’s revocation of Knight Hawk’s ventilation plan was arbitrary and
capricious. Accordingly, the Judge’s decision is affirmed.
Marco
M. Rajkovich, Jr., Chairman
Michael
G. Young, Commissioner
William
I. Althen, Commissioner
Commissioners Jordan and Traynor,
dissenting:
We dissent from
our colleagues’ decision because we conclude that the record evidence leads to
only one reasonable conclusion—District Manager Ronald Burns did not act in an
arbitrary and capricious manner when he declined to approve Knight Hawk’s
proposed ventilation plan.
In affirming the
Judge’s conclusion that Burns acted arbitrarily and capriciously, our
colleagues create a new legal standard. The majority holds that a District
Manager may only exercise his/her discretion to require additional information
in a proposed ventilation plan if he/she can connect that specific requirement
to a “plausible harm.” Slip op. at 11. We reject the majority’s new burden as
it is plainly inconsistent with Commission precedent and the Mine Act.
I.
Factual
Background
In MSHA District
8, at the time relevant to this proceeding, the Prairie Eagle Underground Mine
(“PEUM,” operated by Knight Hawk), and Gateway North Mine and Viper Mine (owned
by different operators) were engaged in secondary perimeter mining. In 2017,
Gateway North asked MSHA to extend the distance of its perimeter cuts from 20
feet to 40 feet.
In response, Burns conducted a ventilation survey at Gateway North. The results
of the survey raised concerns about whether Gateway North could adequately
ventilate those extended cuts. Accordingly, Burns decided to conduct surveys at
the PEUM and Viper.
At the PEUM,
MSHA measured air quality, velocity and direction in the perimeter cuts and
blocks using handheld devices and chemical smoke tests. While the survey
demonstrated that adequate air flowed through the system, MSHA was not able to
determine a predictable path. The surveyors reported that the air seemed to
travel without “rhyme or reason,” and MSHA found air-flow in multiple
directions at some points and no air movement at other locations. Tr. 64, 69,
83-85, 96-97; Sec’y Ex. 18. MSHA was concerned that because the direction of
the airflow could not be predicted, Knight Hawk’s mine examiners would not be
able to perform a proper evaluation of the ventilation system. Tr. 95-98,
138-39; Sec’y Ex. 1.
The ventilation survey reports for the Gateway North and Viper Mine indicate
similar difficulties discerning airflow and direction. Exs. P-34, P-35.
After
the survey, the parties exchanged a series of letters. Knight Hawk communicated
that it believed that its proposed ventilation plan was suitable because it
effectively routed gases away from active workings. Sec’y Exs. 2, 4, 6. MSHA
officials outlined the deficiencies identified from the ventilation survey,
which are articulated in the technical citation. Sec’y Exs. 3, 5, 7. In
response, Knight Hawk proposed adding a general statement to describe how air
flows through the panels. Sec’y Ex. 6 at 1-2 (“The direction of airflow for [each]
worked-out area in the 5W/3N/2ME is from [Evaluation Point] 4 to EP3 to EP2 to
EP1.”). MSHA determined that this modification was not an adequate substitute
for a depiction of the specific path of the air through the panel. Sec’y Ex. 9;
Tr. 199-201, 204.
On October 22, 2018, MSHA
notified Knight Hawk that absent proposed modifications addressing the
deficiencies, the ventilation plan would not be approved. Sec’y Ex. 9. On
November 14, 2018, MSHA revoked the mine’s ventilation plan, approved an
interim plan (without perimeter mining) and issued the technical citation. The
citation lists five deficiencies: (1) the design of the bleeder system did not
control air direction throughout the blocks; (2) a method to control air
movement to ventilate extended depth perimeter cuts within the “pillared area”
had not been provided; (3) air direction through the blocks, including the
“pillared areas” within each block, was not shown on plan drawings or the
ventilation map (noting that information on direction of airflow is necessary
for proper evaluation of bleeder system effectiveness); (4) air direction at
evaluation points was not shown in the plan drawings or map (noting the same);
and (5) the specified means of evaluating ventilation in the worked-out area
did not provide sufficient information to determine the effectiveness of the
bleeder system. Sec’y Ex. 11 (citing 30 C.F.R. §§ 75.334(b)(1),
75.364(a)(2)(iii), 75.364(a)(2)(iv), 75.334(c)(4), 75.371(bb), 75.372(b)(9),
75.371(y), 75.371(z)).
After a hearing, a
Commission Judge concluded that MSHA’s decision not to approve the proposed
ventilation plan was a product of bias against the perimeter mining method and
was arbitrary and capricious. 41 FMSHRC 522, 548-60 (Aug. 2019) (ALJ).
II.
Analysis
A. Statement of
Law
Section 303(o)
of the Mine Act requires that:
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 .
. . . 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.
30 U.S.C. § 863(o) (emphasis added). Section
303(o)’s requirement that the plan contain information “as the Secretary may
require” accords the Secretary discretion in determining the contents of the
operator’s ventilation plan. Mach Mining, LLC, 34 FMSRHC 1784, 1791
(Aug. 2012), aff’d 728 F.3d 643 (7th Cir. 2013).
An operator may
challenge the Secretary’s decision not to approve a proposed plan by contesting
a technical citation issued for operating without an approved ventilation plan.
30 C.F.R. § 75.370(a)(1). At hearing, the Secretary is required to demonstrate
that the District Manager considered the relevant data and provided a
reasonable rationale based on the facts for rejecting the proposed plan. Id.;
Prairie State Generating Co., 35 FMSHRC 1985, 1989 (Jul. 2013), aff’d
792 F.3d 82 (D.C. Cir. 2015) (“the Secretary’s burden is to persuade the
Commission that the district manager did not abuse his discretion or act
arbitrarily and capriciously in making his suitability determination, for
instance by failing to examine relevant facts and draw reasonable
conclusions.”).
A Commission Judge then must determine whether the District Manager’s rejection
of the plan was an abuse of discretion.
In Mach
Mining, LLC, the Commission affirmed the Judge’s determination that a
District Manager did not abuse his discretion by requiring additional
evaluation points in the bleeder system. 34 FMSHRC at 1795-96. The Commission
found that the evidence supported a finding that the adequacy of the airflow
and methane dilution could not be determined from the information collected at
the existing evaluation points.
In the case at
hand, rather than reviewing the proffered rationale, the Judge focused on
evidence which he believed demonstrated that MSHA harbored a bias against
perimeter mining. We believe that the Judge erred by departing from his narrow
role of considering whether the District Manager’s explanation was reasonable
and based on the facts. See Motor Vehicle Mfrs. Ass’n of U.S., Inc., v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (review of the
agency decision making process under an arbitrary and capricious standard is
“narrow”).
Tacitly
acknowledging the insufficiencies in the Judge’s analysis, our colleagues
affirm the Judge’s decision on different grounds—imposing a new burden of proof
on the Secretary. See Slip op. at 16. The majority holds that the Secretary
does not have the discretion to require information to be included in a ventilation
plan unless the Secretary connects that requirement to “some plausible
harm to miners from methane, dust, noxious gases, or some other
ventilation-related hazard.” Slip op. at 11 (emphasis added); slip op. at 12
(The Secretary must provide “a fact-based explanation for why the proposed plan
could expose miners to unsafe or unhealthful conditions.”).
The majority’s requirement
that the Secretary’s discretion is constrained by his ability to connect a
regulatory requirement to a plausible harm is flatly inconsistent with Mach
Mining, Prairie State and other governing caselaw. See also e.g.,
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996) (“[w]e reject Peabody’s
proposal that the Secretary be required to prove the hazard addressed by a new
plan provision either exists or is reasonably likely to occur.”); see also
Hopkins County Coal, LLC, 557 Fed.Appx. 515, 520-21 (6th Cir.
2014), aff’g 35 FMSHRC 134, 142 (Jan. 2013) (finding, that the Judge’s
determination that there was a rational connection between the facts and the
requested revisions does not depend on a precise finding of potential harm).
Additionally, our colleague’s requirement is not supported by the plain
language of section 303(o), which accords discretion to the District Manager to
approve ventilation plans and require information deemed to be appropriate.
B. The District
Manager offered a reasonable fact-based rationale for his decision not to
approve Knight Hawk’s ventilation plan.
The record
evidence supports only a single conclusion: the District Manager provided a
reasonable fact-based rationale for declining to approve Knight Hawk’s proposed
plan. See Walker Stone Co. v. Secretary of Labor, 156 F.3d 1076, 1085
n.6 (10th Cir. 1998) (remand unnecessary where record as a whole admits only one
conclusion on the issue). The surveys demonstrated problems with ventilating
the deep perimeter cuts, and accordingly the District Manager requested that
the mine include more specific information in its ventilation plan.
District Manager
Burns determined that the deep cuts were not adequately ventilated. The
ventilation survey had indicated either imperceptible or inconsistent air
circulation through the mined out blocks and perimeter cuts. Burns found that
there was little to no ventilation at the face of the perimeter cuts. Furthermore,
the results of the smoke tests were sometimes inconsistent within the same cut,
which MSHA considered as evidence that the ventilation was not controlled or
adequate. Tr. 78-79. Beiter testified that although air was being moved through
the bleeder, he believed that it moved in an arbitrary manner, without “rhyme
or reason.” Tr. 96-97. Methane could be encountered at any time, as
demonstrated be a recent incident in which a driller broke a hole in the roof
and liberated methane. Sec’y Ex. 3 at 1 (4.7% methane bottle sample).
The District
Manager also required that Knight Hawk indicate the direction that air moved
through the blocks as specified in 30 C.F.R. § 75.372(b)(9) (“The map shall
contain the following information: (9) [t]he direction of air flow in all
underground areas of the mine.”). (emphasis added). He required the
directional indications so that Knight Hawk mine examiners would be able to
evaluate whether the ventilation system was functioning; proper evaluation of
bleeder systems requires the ability to evaluate the direction of the airflow. 30
C.F.R. § 75.371(z) (requiring that the bleeder system be evaluated by taking
“measurements of methane and oxygen concentrations and air quantities and tests
to determine whether the air is moving in the proper direction.”). It is
certainly reasonable for the District Manager to require the ventilation map
contain directional arrows indicating which direction is the “proper
direction.” Because the plan lacked adequate directional information, it did
not comply with the relevant mandatory safety standards. Indeed, the safety
standard at 30 C.F.R. § 75.371(y) requires that ventilation plans must include
the means to determine the effectiveness of a bleeder system used during pillar
recovery. Sections 75.364(a)(2)(iii) and 364(a)(2)(iv) require the travel of
bleeder entries and testing at evaluation points for methane and oxygen
concentrations and to test to determine if air is moving in the proper
direction.
Requiring that a
ventilation plan contain information contemplated by the mandatory safety
standards based on data retrieved from multiple ventilation surveys is within
the discretion of the District Manager. 30 U.S.C. § 863(o) (“The plan shall
show . . . such other information as the Secretary may require.”); 30 C.F.R §
75.371 (“The mine ventilation plan shall contain the information described
below and any additional provisions required by the district manager.”).
The fact that
the District Manager may require different information for a perimeter mining
ventilation plan than for another mining method is a reasonable discretionary
act. Ventilation plans are mine specific and address the “conditions and mining
system at the mine.” 30 C.F.R. § 75.370(a)(1); see also 30 U.S.C. § 863(o).
While other forms of secondary mining create subsidence and roof fall, the
blocks in perimeter mining are uniquely accessible. The lack of ventilation in
the extended perimeter cuts posed a hazard, as methane would be most likely
liberated from the face of the cut, away from the ventilation. Tr. 162. Most of
the extended cuts were unbolted, putting the cut at risk of a roof collapse
which could liberate an explosive level of methane. Although the mine generally
liberated a low amount of methane, methane can be liberated at any time and
pockets of methane could form in the work-out area. Tr. 177,
182-83, 194-95, 351-52. Requiring that the deep cuts receive adequate air-flow
to dissipate methane that may accumulate is a reasonable discretionary act
designed to mitigate a potential harm that may occur under a deficient
ventilation plan.
In summary, the
Secretary required Knight Hawk to include further information contemplated by
the mandatory safety standards, after conducting a survey that demonstrated that
airflow was inadequate in some areas. Because the District Manager’s
determination was reasonable and based on the facts and the mandatory safety
standards, the record only supports one finding – the District Manager’s
requirement was not arbitrary and capricious.
C. The Judge Made
Factual and Legal Errors in Finding that the District Manager’s Decision was
the Product of a Bias Against Perimeter Mining.
The ruling below
is infected by the erroneous conclusion that the District Manager’s
determination was arbitrary and capricious because he “improperly relied on two
factors: unreliable smoke tests conducted inside the perimeter cuts, and a bias
against perimeter mining that is supported by substantial record evidence.” 41
FMSHRC at 549. It should not be affirmed because the Judge made findings that
lack the support of the record evidence, failed to evaluate relevant evidence,
and made legal errors in his analysis.
The Judge’s analysis ignores
bedrock principles of administrative law. Case precedent makes clear that
absent a concrete preliminary showing of bad faith, it is improper to permit
inquiry into the mental processes or methods by which an administrative decision-maker
reached his or her conclusions. Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977); United States v. Morgan, 313 U.S.
409, 421-22 (1941). Consequently,
[u]nless the administrative action is tainted by
malice, fraud, or corruption, the courts are concerned only with the product,
not with the motives which produced it. The courts do not sit in judgment on
the motives of administrative officers, acting in purely administrative matters
. . . . [I]t is not the proper function of the court to probe the mental
processes of the agency . . . particularly if the agency makes a considered
decision upon a full administrative record.
73A Corpus Juris Secondum Public
Administrative Law and Procedure § 491. As the D.C. Circuit has emphasized,
“the actual subjective motivation of agency decisionmakers is immaterial as a
matter of law—unless there is a showing of bad faith or improper behavior.” In
re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,
156 F.3d 1279, 1280 (D.C. Cir. 1998).
Moreover, the Judge’s
analysis also fails to reflect the Secretary’s role—and the importance of his
expertise – in the ventilation plan process. As the Seventh Circuit explained:
[T]he process of approving a ventilation plan . . .
involves the formulation of a standard, not the enforcement of a
standard. . . . At bottom, it entails the exercise of the Secretary’s
independent judgment as to the appropriateness of the plan to ensure the health
and safety of the miners. There is, in other words, a congressional mandate
that the Secretary exercise independent judgment that the plan safeguards those
who it is designed to protect. The plan as finally implemented must reflect the
Secretary’s best judgment that the mine is indeed safe for mines. See U.S.C.
s 8639o). . . . This statutory provision makes clear that the Secretary’s role
of approving the plan is . . . . a role imbued with a legislative or
policy-making dimension to ensure that the plan is reflective of the public
interest in mine safety.
Mach Mining, 728 F.3d at
657.
Given this role, and the
emphasis on the importance of the Secretary’s exercise of independent judgment,
MSHA is permitted—indeed, required—to formulate policy choices that maximize
miner safety. Hence, absent a significant threshold showing of bad faith (which
was certainly not demonstrated in this case), our judges should not explore
MSHA’s motives in preferring certain mining practices over others.
The Commission has adhered
to this principle in reviewing plan dispute cases. For example, in Prairie
State, we upheld MSHA’s position on several ventilation and roof control
plan provisions that were the subject of disagreement between the agency and
the operator (while remanding on other issues where the Judge made no findings
of fact). 35 FMSHRC at 1997. One dispute centered on whether the operator
should be permitted to use an extended roof cut of 40 feet instead of using the
normal 20-foot cut by a continuous mining machine. We concluded that
substantial evidence supported the Judge’s decision that the District Manager
did not act arbitrarily or capriciously by imposing requirements regarding the
length of cuts.
Just as MSHA in
the case before us has concerns about ventilating deep perimeter cuts and
requested that Knight Hawk include more specific information in its ventilation
plan, in Prairie State MSHA expressed doubts about the safety of
extended cuts, due to the possibility of a greater number of roof falls with
longer cuts and the presence of respirable dust. Prairie State Generating
Co., 32 FMSHRC 602, 606 (May 2010) (ALJ). An MSHA Procedure Instruction
Letter permitted MSHA to evaluate operators’ plans by using a 10-foot increment
stair-step evaluation, first approving a 20-foot cut, then when the mine
successfully operated on that basis, progressing to 30-foot cuts, then 40-foot
cuts. As the Court of Appeals explained in upholding MSHA’s position adopting
this approach, “the thrust of the Letter is to ensure that operators and
district managers have data from initial operating experience at a site to
inform the decision about cut length appropriate to the mine.” 792 F.3d at 95.
Both here and in Prairie
State, MSHA expressed concerns about certain mining practices (perimeter
mining and 40 foot cuts) and required additional information to ensure miner
safety. The expression of such preferred results (that neither perimeter mining
nor 40-foot cuts be permitted in the absence of additional safety information)
flows naturally from MSHA’s policy-making role, and neither judges nor the Commission
need examine the motivation behind such choices.
Nonetheless, we will address
the Judge’s findings of bias and why they are not supported by the record. First,
the Judge found that testing for airflow inside the perimeter cuts was evidence
of a bias against perimeter mining.41
FMSHRC at 550. However, as previously articulated, the mined out areas in
perimeter mining function as bleeders and therefore are required to comply with
the relevant mandatory safety standards. The Mine Act authorizes the District
Manager the discretion to consider the unique conditions of each mine and
mining system used in approving a suitable ventilation plan. 30 U.S.C. § 863(o)
(“A ventilation system . . . suitable to the conditions and the mining
system of the coal mine and approved by the Secretary shall be adopted by
the operator . . . .”) (emphasis added).
The Judge
further erred in finding that the use of chemical smoke tests to conduct a
ventilation survey was indicative of bias. Smoke tests are a commonly accepted
methodology used in conducting ventilation surveys. See Mach Mining, 34
FMSHRC at 1786. Thomas Hasenstab, the mine superintendent, and Gary Hartsog,
Knight Hawk’s own expert, conceded as much. Tr. 347-48, 510-11. John Hohn, MSHA
ventilation specialist, testified that smoke tests are used where the airflow
is too low for anemometers. Tr. 255-56. Dennis Beiter and Burns
stated that MSHA did not use the alternative methodology of tracer gas in this
instance because the direction of airflow was unknown in some sections of the
mine. Tr. 247-48; Tr. 559-61. We conclude that MSHA articulated a reasonable
fact-based rationale for relying on an accepted methodology for conducting a
ventilation survey. Accordingly, the Judge’s finding that the use of a chemical
smoke test was indicative of bias is off the mark.
The Judge
further erred when he implied that the District Manager’s decision that the
proposed plan was not suitable was tantamount to a ban of perimeter mining at
the PEUM. See 41 FMSHRC at 553 (“Here, MSHA made no statement or
analysis that the significant and uncontroverted safety and health protections
afforded by perimeter mining under the revoked ventilation plan were actually
considered or outweighed by safety and health standards that gave no less protection
against respirable dust, noise, red zone, and roof bolting under the interim
ventilation plan.”).
Notably, Burns had told Knight Hawk that he would also approve a perimeter
mining plan at the PEUM with 20 foot cuts (Tr. 203; Sec’y Exs. 7, 9), or even
40-foot cuts if a suitable ventilation plan could be developed. Tr. 213-14. Moreover,
in finding “bias” on the part of District 8, the Judge failed to consider that
District 8 had in fact approved a perimeter mining ventilation plan for Gateway
North. Tr. 164-65.
Hasenstab, the
superintendent, testified that he did not think that Burns was trying to
eliminate perimeter mining by revoking the ventilation plan. Tr. 354. The Judge
dismissed Hasenstab’s un-rebutted testimony, finding that he did not testify
truthfully in order to avoid generating “ill will” with District 8. 41 FMSHRC
at 550. The record contains no indication that Hasenstab was coloring his
testimony to appease District 8 officials. The Judge’s inference is entirely
speculative.
Instead of relying on the
aforementioned direct evidence, the Judge relied on the hearsay evidence of
Eslinger, who testified that he knew of MSHA officials who vowed to “get rid”
of perimeter mining. Id.; Tr. 416-17, 438-39, 440-42. Yet, Eslinger
conceded that he did not have any personal knowledge as to District Manager
Burns’ thoughts on perimeter mining and, in fact, never met or spoke with
Burns. Tr. 443-44. Furthermore, Eslinger had not worked at MSHA since 2009. Tr.
400.
The Judge also
found that Beiter demonstrated bias when he corrected Diane Doyle-Combs and
asked her to revise her notes concerning the direction the chemical smoke tests
indicated. The Judge neglected to consider Beiter’s explanation that he
corrected Doyle-Combs because she had erroneously recorded the observations of
Knight Hawk’s representatives. Tr. 565-66. Her assigned task was to exclusively
record MSHA’s observations.
The Judge’s
finding that MSHA did not consider the advice of agency experts before revoking
the PEUM ventilation plan is not supported by substantial evidence. The
District Manger’s decision to revoke the plan was based on the findings of the
ventilation survey. Agency officials with demonstrated expertise in ventilation
participated in the survey, including John Hohn, a ventilation specialist
supervisor, and Dennis Beiter, the senior official responsible for
investigating ventilation plans for MSHA. Therefore, the Judge’s conclusion
that “bias” can be inferred by the District Manager’s failure to consider the
opinion of experts is not substantiated by the facts. 41 FMSHRC at 551.
The Judge
further erred in concluding that the findings of the ventilation survey—which
demonstrated inadequate air movement in deep perimeter cuts—was not a
sufficient reason in- and-of-itself to reevaluate earlier conclusions regarding
the suitability of the ventilation plan. See id.
Furthermore, the
Judge took issue with MSHA’s June 7, 2018, letter in the use of the term
“throughout” rather than “through.” Id. at 550 (“This bias was evidenced
not only from testimony, but also from the June 7, 2018 letter where MSHA
specifically emphasized that the ventilation plan was inappropriate because ‘[t]he
worked-out area is not ventilated throughout the entire pillared area.’”). The
Judge notes that the term “throughout” is not used in section 75.334(b)(1). The
Judge apparently failed to consider that section 75.334(b)(1) requires that the
bleeder system must “control the air passing through the area.” 30
C.F.R. § 334(b)(1) (emphasis added). The Judge did not attempt to explain why
it was unreasonable for MSHA to read the term “through” as meaning “throughout”
in the context of section 75.334(b)(1).
In summary,
because the Judge considered evidence that was superfluous to the Commission’s
review of agency action under section 303(o), neglected to consider relevant
evidence and otherwise erred as a matter of law, we cannot affirm his finding
that the District Manager acted in an arbitrary and capricious manner.
/s/ Mary Lu
Jordan
Mary Lu Jordan,
Commissioner
/s/ Arthur R.
Traynor, III
Arthur R.
Traynor, III, Commissioner
Attachment A
Attachment B
[1] 30
C.F.R. § 75.370(a)(1) requires operators to “develop and follow a ventilation
plan approved by the district manager.” When an operator and the Secretary are
unable to resolve a dispute concerning plan provisions, the Secretary may issue
a citation alleging a violation for operating without an approved plan, which
is sometimes referred to as a “technical citation,” so that the matter may be
litigated before the Commission.
[2] “‘Bleeder’
entries (the accepted terminology) may be defined as ‘special returns’,
developed and maintained as part of the ventilating system” for this purpose. Kingery,
D. and Dornenberg, D., Bureau of Mines Report of Investigation 5360, Effectiveness
Of Bleeder Entries In Ventilating Pillared Areas Of Bituminous-Coal Mines
(1957), at 2.
[3] Gadde,
M. and Peng, S. 2009. Weak Floor Stability During Perimeter Mining in the
Illinois Basin Coal Mines. 28th International Conference on
Ground Control in Mining, Morgantown, WV, at 1. In “room and pillar mining,”
typically flat-lying beds of coal are mined in “rooms” (entries and crosscuts)
forming pillars of undisturbed coal left for roof support. Am.
Geological Institute, Dictionary of Mining, Minerals, and Related Terms 469
(2d ed. 1997) (“DMMRT”).
[4] A
panel refers to the largest distinct unit for coal extraction. The panel is
surrounded by solid strata and coal, and ventilation for each panel is kept
distinct. DMMRT at 389 (“panel working”). Panels are generally then
subdivided into smaller sections (“blocks”). While the term “block” in some
coal mining circles may refer to an individual “pillar,” the term “block” as
used by PEUM in reference to its perimeter mining method refers to a small
section comprised of entries, crosscuts and pillars.
[5] Attachment
A (Ex. P-28) is a typical drawing from PEUM’s plan showing the entries,
crosscuts and pillars that are formed as the mining is advanced into the coal
seam. This creates the typical “checkerboard” form of advance mining.
[6] Coal
is first extracted with advance mining, in which entries and crosscuts are
advanced into the solid coal (forming the pillars) from a main set of entries
and crosscuts. In traditional room-and-pillar mining, once the limits of
advance mining are reached, the retreat mining phase commences, in which the
pillars are extracted while backing out towards the main entry. See DMMRT
at 457 (“retreating system”). The extent to which coal is extracted on
retreat differs in traditional room-and-pillar mining as compared to perimeter
mining.
[7] Attachment
B (P. Ex. 28) shows the typical perimeter mining plan. This diagram, appearing
like a “fringed checkerboard,” depicts the entries and crosscuts, together with
the unmined pillars that create the “checkerboard” form. The additional
perimeter cuts along the outside edges of the block appear as the “fringe” to
the “checkerboard.” These perimeter cuts are numbered sequentially and intake
air passes across the miners’ backs as they mine, so air is swept over the
previously mined area and out of the mine. In perimeter mining, these cuts are
taken from the solid coal barriers between blocks or panels. See Gadde,
M. and Peng, S. at 1.
[8] While
Stipulation No. 18 in the Decision (41 FMSHRC at 526) notes that a “typical
Perimeter Mining Panel is 1 mile in length and 1,240 feet in width;
approximately 150 acres,” perimeter mining of this panel is concentrated and
conducted in the individual smaller sections or blocks. Each block is 3 to 7
entries wide and extends only 6 crosscuts deep from the outside entry of the
main section. See Sec’y Exs. 18-1, 18-2. There are 7 sets of such blocks
depicted on this Exhibit. While it takes approximately 11 months to complete
the entire Perimeter Mining Panel, each individual block within the panel is
developed and perimeter mined, on an individual, sequential basis in a much
shorter timeframe. Once the entire area is “worked-out” in the panel, PEUM
typically seals each Perimeter Mining Panel within 30 days from completion of
all mining, thereby closing the entire worked-out area from further entry by
any person.
[9] Subsidence
is a time-dependent process, either natural or purposefully induced, in which
there is a lowering of the ground surface in response to the removal of gas,
liquid, or solid matter. Lee, F.T. and Abel, Jr., J.F. 1983. Subsidence from
Underground Mining Environmental Analysis and Planning Considerations. Geological
Survey Circular 876, at 2.
[10] The approved
PEUM Ventilation Plan map was not included as an exhibit in the record on
discretionary review. Except for publicly available
information which supports administrative notice, the only factual information
permissible on review is the record. A complete evidentiary record is essential
for review of the parties’ contentions, particularly when the subject of
contention centers on information best represented by review of an actual
document.
[11] The
“gob” is the space left by the extraction of a coal seam into which waste is
packed or the immediate roof caves. DMMRT at 239.
[12] MSHA
District 8 Manager Ronald Burns testified that the mine experienced two
heat-producing events after the plan was revoked and in a different area
of the mine where rock from cutting the roof for an overcast airway was
deposited. However, the evidence as to the source of the heat was inconclusive
as to whether it was due to a deposit of rock in the area or generated from a
bit used to cut the rock. Tr. 175, 376, 492.
[13] There
is a slight discrepancy between the Judge’s Decision and the hearing transcript
on the sources of light during this survey. The Decision states that “an MSHA
representative would point a light from outside the perimeter cut into the cut,
while a pair of lights on the probe itself also provided some level of
illumination. Tr. 122, 520.” 41 FMSHRC at 534. MSHA witness Beiter, however,
referred only to the two cap lights, stating “[w]e use two lights attached to
the end of the probe.” Tr. 122. The Judge’s notion of distinct sources of light
from two different locations may be explained by Hartsog’s testimony regarding
different types of surveys he had run. He, by way of example, recalled tests
“in a large cavity limestone mine or aggregate mine where the opening was maybe
30 or 32 feet high and 60 feet wide.” Tr. 519, 520. Hartsog explained that in
the tests he had taken in the past, the smoke was being observed from 25 feet
away with two sources of light—a light being shone back into the cavity
by an observer, and a light shining straight up onto the released smoke. Tr.
520. Of course, those tests are distinctly different from the 44-foot
observations by the survey team using two cap lights. The important point here
is that “it gets difficult to see at a distance if you’re 50 feet away, 45 feet
away,” as Hartsog stated. Tr. 520.
[14] Mine
Superintendent Hasenstab, observing one smoke test with Beiter, disagreed with
him on his determination that there was no perceptible movement. Tr. 349-50.
[15] The
use of tracer gas is a technique for determining air movement whereby a certain
gas is released in one area and then sampling for that gas occurs in another
area to assess its concentration level, thus determining air movement. Tr. 533,
560.
[16] Knight
Hawk claimed that “[p]erimeter mining results in a lower miner exposure to
respirable dust, lower citations, a lower injury rate, a lower exposure to
noise, and a lower exposure to red zone/danger zone.” Sec’y Ex. 2 at 2. It
further emphasized that perimeter mining does not involve roof bolting in
perimeter cuts, eliminating all hazards associated with the roof bolting
process. Tr. 374, 422. At the hearing, PEUM’s Hasenstab and Jankousky both
testified that the previously approved ventilation plan has “significant” safety
benefits. Tr. 337, 370-71. PEUM’s Hartsog also testified that perimeter mining
was not only a safe form of mining, but that it was safer than continuous
mining. Ex. P-37 at 2. Jankousky noted, “Definitely perimeter mining is safer.”
Tr. 371.
[17] These are 30 C.F.R. §§334(b)(1), 364(a)(2)(iii), 364(a)(2)(iv), 334(c)(4), 371(bb),
372(b)(9), 371(y), and 37l(z).
[18] Section 334(b) requires in part
that:
(1) During pillar recovery a bleeder system shall be used to
control the air passing through the area and to continuously dilute and move
methane-air mixtures and other gases, dusts, and fumes from the worked-out area away from active workings and into a return air course or to the surface of the mine.
(2) After pillar recovery a bleeder system shall be
maintained to provide ventilation to the worked-out area, or the area shall be sealed.
30
C.F.R. § 75.334(b)(1), (b)(2). Section 75.201 defines “pillar recovery” as “[a]ny reduction in pillar size during retreat mining.”
30 C.F.R. § 75.201.
[19] Although
Executive Order 13892, October 19, 2019, had not been issued prior to the
hearing in this case, reliance on a change to a Program Policy Manual
adjustment that changed a prior definition of a bleeder system, without any
public notice or comment, clearly violated public policy as it now stands.
[20] MSHA’s
only expressed concern with the perimeter cuts was the possibility of methane
in those cuts, despite the undisputed evidence of low methane throughout the
block and the clay-like composition of the roof and floor, rendering conditions
unlikely to cause a spark and ignition. Tr. 182-83, 194-95, 246, 492-93.
[23] The
requirement for safe removal of methane, toxic gases and dust through the
worked-out area is found in 30 C.F.R. § 75.334(b), which is referenced in the
technical citation (along with other ventilation regulations at 30 C.F.R. Part
75). At oral argument, the Secretary’s counsel expressly disclaimed that MSHA’s
finding the ventilation plan was unsuitable was based upon any of the
regulations identified in the citation. Counsel stated “I think there may have
been . . . five deficiencies that needed to be corrected. Those were not tied
to any particular standard. So, the, finding of deficiency is not, is not tied
to a standard.” Oral Arg. Tr. 34. Further, MSHA’s counsel noted that MSHA was
not asking for more evaluation points stating, “[a]nd so I guess a more direct
response to your question, MSHA's not saying there need to be more EPs.” Oral
Arg. Tr. 14-15.
[24] The
interiors of the blocks, here, are worked-out areas in which miners would
otherwise have no reason to enter or travel. Mining has ceased in these areas,
and therefore, regular examinations conducted for active mining areas are no
longer carried out. The roof, ribs and floor necessarily deteriorate with time.
Further, the extended perimeter cuts are not roof bolted, by design, and miners
are prohibited from entering under the unbolted roof. Indeed, they are
barricaded against such entry. Tr. 54, 105.
[25] In
addition to the information shown by Knight Hawk on approved Ventilation Plans
and maps for the past 14 years, Knight Hawk proposed adding to the map a
statement further describing airflow direction in certain areas. Moreover, PEUM
offered to provide more information such as inclusion of a sample statement
that could read, “[t]he direction of airflow for the worked-out area in the
5W/3N/2ME is from EP4 to EP3 to EP2 to EP1.” Sec’y Ex. 6 at 2. Knight Hawk also
offered to “add a more detailed description to our Ventilation Plan as well as
indicate the direction at [Evaluation Points].” Sec’y Ex. 6 at 3. Beiter
conceded that “in a general sense” airflow through the panel, from the working
face to the surface, was adequately controlled. Tr. 95-98, 138-39; see also Sec’y
Ex. 1 at 3 (describing adequacy of overall airflow). Nevertheless, MSHA
rejected these offers and continued to contend that the plan needed to contain
even more detail regarding air control devices and air directions with more
specificity. Burns testified that was inadequate because the “plain language”
of the regulation states that maps must “show the direction” of airflow using
arrows. Tr. 204, 238, 250. To the contrary, the relevant regulation simply
requires maps to “contain . . . information” on airflow in underground areas. 30
C.F.R. § 75.372(b)(9). If the Secretary rejected the modification on the basis
that “arrows” were required by the standard, such a determination was clearly
arbitrary and capricious.
[27] District
Manager Burns did not choose to include any of the ventilation specialists in
District 8. Of course, Burns’ choice of MSHA personnel to conduct the survey is
not a reason for rejecting his findings. However, no explanation was proffered
as to why ventilation personnel most familiar with operations in the specific
area of the Illinois basin were not included in the survey team.
[28] We
noted above that there was some testimony about heat-producing events after
this inspection was concluded. However, the evidence did not show any
similarity to the matters considered in the MSHA investigation. Additionally, Beiter’s
knowledge of the event appears to be secondhand. Tr. 550-51. As to spontaneous
combustion, Hartsog testified that the material had only been there for a week
or two, whereas the incubation period necessary for spontaneous combustion in
the Illinois Basin is generally months, eliminating the notion that the heating
event could have been spontaneous combustion. Tr. 491-492. In sum, that alleged
incident in a different area of the mine and not shown to be connected in any
way to perimeter cutting is wholly irrelevant to the ventilation plan studied
in MSHA’s survey.
[29] Burns
expressed a concern about “the bleeder system after [PEUM is] through doing
perimeter mining and left that area that it's not being ventilated.” Tr. 173. This
concern is unfounded. Once the area has been sealed in accordance with the PEUM
plan, there is no ventilation needed of the internal abandoned area.
[30] Beiter
testified that one reason for the study was that “we had a unique opportunity
in this perimeter mining system to actually determine airflow through the
pillared area.” Tr. 50. In traditional retreat mining, it is neither safe nor
even practical to determine the direction of air flow throughout areas of the
extracted pillars. From an MSHA perspective, therefore, this study constituted,
at least in part, simply an opportunity for MSHA to do research on air flow
through a worked-out area.
[31] As we have
found substantial evidence supports an arbitrary and capricious finding based
on the Secretary’s failure to articulate a satisfactory explanation for
unsuitability that is rationally connected to the facts, we need not
specifically address each of the Motor Vehicles factors analyzed by the
Judge.
Furthermore, in
worked-out areas the Secretary requires that the ventilation plan specify the
location of ventilating devices such as regulators, stopping and bleeder
connectors used to control air movement through the worked-out area. 30 C.F.R.
§ 75.334(c)(4); 30 C.F.R. § 75.371(bb).