From the foregoing, we discern that the outcome of a suitability determination in this
case does not depend upon a didactic characterization of the standard of review as beyond a
preponderance of the evidence or abuse of discretion. Instead, at the end of the day, MSHA
must base a refusal to accept a ventilation plan only upon substantial evidence that the proffered
plan would not meet the safety and health requirements at the specific mine. Certain principles
become clear.

First, the Secretary bears the burden of introducing evidence to support the proposition
that the proffered plan does not achieve the safety and health ventilation requirements at the
specific mine.

Second, there is not a presumption that the Secretary’s opinion is correct. Under any
standard of proof, the Secretary must present substantial evidence to support his position. That
evidence must be sufficient for a reasonable person to conclude that usage of the plan under
review is not appropriate to achieve the safety and health ventilation requirements at the
specific mine.

Third, in reviewing a proposed ventilation plan, MSHA does not have a right or
responsibility to determine whether an alternative plan — or even an existing plan — would
also achieve the safety and health ventilation requirements at the specific mine. Section 303(0)
expressly divides responsibilities between the operator and MSHA. The operator has the duty
to develop a plan for maintaining adequate ventilation and respirable dust control in the specific
mine. MSHA has the duty to review the plan. But the mine is not federal property: it is the
operator’s investment-backed business, and under the law it retains the right to have its mining
plans approved unless they fail to conform to duly-promulgated federal and state standards and
regulations, including the health and safety standards imposed by and under the Mine Act.

An operator’s desire to maximize mining efficiency is thus acceptable — or “suitable”
— provided it maintains adequate ventilation and respirable dust control in the specific mine.
Section 303(0) does not require, and indeed does not permit, MSHA to design the ventilation
plan. Section 303(0) does not call for a “comparability” analysis of potentially different
ventilation plans. Thus, section 303(0) does not call for MSHA to develop a plan of its own and
impose such plan upon the operator. Suitability is the standard. If the operator’s plan is
suitable — that is, is appropriate for maintaining adequate ventilation and respirable dust control,
then it meets the requirements of section 303(0).

The Judge’s error here is that she failed to evaluate the District Manager’s decision and
the evidence in support of that decision under the correct legal standard, i.e., whether the
operator’s plan was suitable, and instead, simply considered whether MSHA abused its
discretion in rejecting the operator’s plan. The problem with this analysis is that it ignores the
language of the statute and implementing standard and conflates the District Manager’s decision
with the Secretary’s burden of proof at trial. If the Secretary is permitted to simply endorse the
District Manager’s decision with post hoc rationalization and evidence adduced at trial, then an

reject a suitable plan — that is, one that will achieve adequate ventilation and respirable dust
control in the specific mine — simply because MSHA prefers a different plan.

20


the percentage of CO in the tailgate entry — which is relative to how much oxygen is present in
the air. Tr. 146-50. According to Farinelli, if only a relatively low amount of oxygen exists, the
concentration of CO showing up on the sensor is higher. By contrast, higher levels of oxygen
will dilute the concentration of CO, which paints a misleading picture of how much CO is
actually present in the gob.

The Judge chose to rely on the testimony of Riley and Beiter. We find that substantial
evidence, i.e., evidence capable of persuading a reasonable mind, exists to support the Judge’s
finding that the dual entry system provides a better method of early detection of spontaneous
combustion.

4. Substantial Evidence Supports the Judge’s Finding that the Single-Entry

Plan Would Only Minimally Reduce Material Handling and Roof Control
Hazards.

Although Signal Peak’s proposed plan would obviously reduce material handling and
roof control hazards by eliminating the need to maintain tailgate entry number 2, the Secretary
has demonstrated that the resulting reduction in hazards would be minimal. According to Riley,
the operator has done a “pretty good job” in mitigating the hazards that relate to roof control and
material handling. RH Tr. 43-45, 81-83. According to Beiter’s report, discussions with the
operator’s personnel did not indicate a history of accidents involving material handling during
the installation of standing support in the No. 2 headgate entry of previous longwall panels. Sec.
Ex. 10(a) at 6. Thus, Beiter reasonably concluded that the operator was doing a good job of
installing support in a safe manner. Tr. 14-15, 49-50.

Additionally, Beiter testified that he “was not made aware” and “[n]o records were
provided” that there were any issues regarding safe access to construct seals in the dual-entry
system. Tr. 12-13. Indeed, as Farinelli himself testified, “we feel we are doing an excellent job
at managing our roof control.” Tr. 176. Asa result, substantial evidence supports the Judge’s
finding that the reduction in material handling and roof control hazards would be minimal under
the single-entry system.

Conclusion

Accordingly, we would hold that under the appropriate standard of review, the Judge’s
decision affirming the District Manager’s rejection of the plan is supported by substantial

evidence.

Mary Lu {fe Comijésioner

Ya Fa)

Robert F. Cohen, Jr., Commissioner

14


MSHA presented no evidence other than a wholly theoretical opinion without any
supporting data, examples, other similar mines, or prior events about a possibility to support that
theory.'6 MSHA’s witnesses provided conclusory opinions as to the potential of noxious gases
exiting onto the face in a single-entry system. However, their opinion testimony fails to consider
the evidence pertaining to the air pressure differential employed in the blowing ventilation
system, the high volume of air being pushed across the face in the blowing system, or the fact
that no noxious gases exited the gob during the fan stoppage tests. Tr. 79, 131, 143, 145-46.

Farinelli explained that the operator had a carbon monoxide detection unit at the mouth of
the panel and that it detected not only the amount of carbon monoxide in the airflow but more
importantly the quantity of carbon monoxide. Tr. 149. Therefore, it created a baseline for the
amount of carbon monoxide. Tr. 149. With that information, the operator could trend the
amount of carbon monoxide separate from just measuring amounts in airflow at any given point.
Tr. 149. As the testimony established it is important to know the quantity of CO present in the
gob and the sensor in the No. | entry makes that determination. Tr. 148.

The evidence supports that the single-entry system was more effective at addressing the
potential concerns MSHA identified. One type of event posited by MSHA as disrupting the
operator’s ventilation system and potentially allowing for the release of noxious gases was a fan
stoppage.'” As noted above, fan stoppage tests did not show an advantage for the existing plan.
In fact, the test revealed that the results were slightly better under the operator’s single-entry
plan. District Manager Riley acknowledged that the oxygen levels fell to a slightly lesser degree
under the test for the single-entry plan. Tr. 163; RH Tr. 89-90; Sec. Ex. 15(a). Thomas Morley,
MSHA Mining Engineer in the Ventilation Division, who performed the fan stoppage tests,
acknowledged on cross-examination that, if miners are “traveling . . . coming off the longwall
face and turning right [onto tailgate entry number 1], . . . if there are contaminants coming out of
the gob at that corner, the more air there is to dilute them, [which would exist under the single-
entry system], the better.” Tr. 79. This evidence does not support the decision to prefer the dual

'© Riley testified about one instance of a concentration of carbon monoxide at the
headgate (opposite side of the longwall from the tailgate) in 2011 before the mine switched to the
blowing ventilation system to help alleviate the danger of a spontaneous combustion. There is
no evidence that MSHA even considered this information in preferring the double entry system.

'7 Although the Secretary disputes the results of the fan stoppage tests, his theory is
unfounded and speculative. It is undisputed that the tests were still run three days apart, and that
the gob gases had the entire three-day period of time to build back up after the first test,
consistent with the test plan protocols. Sec. Ex. 15. The Secretary has adduced no evidence to
suggest that the gas build-up was affected in any way by the operator’s half-day delay in
converting the tailgate into a single-entry system. In fact, the testimony shows the opposite to be
more likely. The Secretary’s own witness, MSHA engineer Morley, conceded on cross-
examination that normal mining operations occurred for all three days in between the tests, as
planned. Tr. 70-71. Furthermore, Morley conceded that having one of the three days of mining
being run as “normal” (i.e., under a dual-entry system) should not have negatively impacted the
gob’s ability to have a sufficient build-up of noxious gases by the time the second test was due.
Tr. 70-72. As such, it seems highly unlikely that the operator’s slight deviation from the testing
protocol in any way interfered with the validity of the test results.

24


address fan stoppages, regardless of whether it ultimately used a dual-entry or a single-entry
plan. Sec. Ex. 15a at 5-6; Sec. Ex. 15.

Based on the results of the fan stoppage tests, on May 11, 2016, MSHA notified Signal
Peak that it needed to make immediate changes to its existing ventilation plan to protect miners
in the event of a fan stoppage. On May 16 and 18, 2016, the operator submitted another
proposed single-entry tailgate return ventilation plan.

On June 15, 2016, for the fourth time, Riley rejected Signal Peak’s proposed plan. About
a week later, the operator requested the issuance of a technical citation. MSHA subsequently
issued the citation that is the subject of this litigation?

B. The Judge’s Decision

The Judge affirmed the citation. 39 FMSHRC at 653. Asa threshold matter of law, she
rejected Signal Peak’s argument that the Secretary is required to prove that the operator’s
ventilation plan is “unsuitable” for the mine, holding that operators are “not entitled to . . . de
novo hearing[s] on the merits of . . . plan[s].” Jd. at 651. Instead, she held that a district
manager’s rejection of a proposed plan must be “arbitrary, capricious, or an abuse of discretion”
in order to be vacated. Id., citing Prairie State Generating Co., 35 FMSHRC 1985, 1989 (July
2013), aff'd, Prairie State Generating Co. LLC v. Secretary of Labor, 792 F.3d 82 (D.C. Cir.
2015); Mach Min., LLC, 34 FMSHRC 1784, 1790 (Aug. 2012), aff'd, Mach Min., LLC v.
Secretary of Labor, Mine Safety and Health Admin., 728 F.3d 643 (7th Cir. 2013)). Applying the
“arbitrary and capricious” standard of review, the Judge held that Riley’s decision “was based on
careful consideration of all of the relevant factors, and that he did not abuse his discretion in
requiring the mine to use a dual-entry plan.” 39 FMSHRC at 653.

The Judge found that Riley reasonably explained his position that: (1) the dual-entry
system was more effective at removing noxious gases from the tailgate area where miners work,
(2) the dual-entry system enabled better monitoring of conditions in the gob and earlier detection
of noxious gases before the gases reached the working face, (3) the dual-entry system did not
present significant material handling hazards, (4) there was a suitably low risk of spontaneous
combustion under the dual entry system, and (5) fan stoppage tests did not strongly favor either
plan. The Judge found that the District Manager based his decision on a careful consideration of
relevant factors and did not abuse his discretion.

5 The operator had twice before requested issuance of a technical citation. On those
occasions, however, MSHA continued to consider the request and asked for additional
information or investigation.

° MSHA’s original citation included a reference to the deficiencies in the mine’s current
ventilation plan discovered during the fan stoppage tests. Due to the ongoing negotiations
addressing these deficiencies, however, the Secretary at hearing moved to amend the citation to
remove that portion, and the Judge granted the motion. 39 FMSHRC at 638, n.1. As such, the
fan stoppage deficiencies in the current plan are not at issue in the case before us.


operator would never prevail where the agency has rejected its proposed plan.

Application of Legal Principles

The record in this case reveals that MSHA did not review the operator’s plan for
suitability. Instead, MSHA compared the proffered plan to the existing plan and decided it
preferred for the operator to maintain the existing plan. MSHA made a comparability analysis
rather than a suitability analysis. The Secretary did not find, or even offer evidence showing the
new plan proposed by the operator was not suitable — that is, would not meet the requirements
for a safe and healthful environment.

MSHA refused to approve the operator’s proposed plan, despite the fact that the evidence
shows it addressed well the major concerns of the standard, provided a lower risk of spontaneous
combustion, lower risk of exposure to roof control hazards, better adaptability to the escapeway
plan, and equivalent insufficiency to the dual-entry system in terms of what the fan stoppage test
revealed — a problem of noxious gases and low oxygen that MSHA’s alternative plan also failed
to satisfy and that the operator committed to fix. Tr. 50, 70-72, 79, 118-19, 120, 126, 128, 163;
RH Tr. 78-79, 89-90; Sec. Ex. 15(a).

MSHA based its denial of the operator’s proposed plan, and the Judge and our colleagues
base their approving opinions, on comparison-based claims — namely, that (1) the dual-entry
system was more effective at removing noxious gases from the tailgate area where miners work,
(2) the dual-entry system enabled better monitoring of conditions in the gob and earlier detection
of noxious gases before the gases reach the working face, (3) the dual-entry system did not
present substantially greater material handling hazards, (4) there was a suitably low risk of
spontaneous combustion under the dual-entry system, and (5) fan stoppage tests did not strongly
favor either plan.

The fan stoppage tests were inconclusive and at best, favored the operator’s plan.'® As to
points 3 and 4 above, those factors demonstrate that MSHA was making a comparability analysis
rather than a suitability analysis. These factors consider whether the operator’s plan has benefits
that make it “more suitable” than the plan preferred by MSHA.'' The only issue that bears upon

> Even under the more deferential standard applied in Mach and Prairie State,
substantial evidence does not support the Judge’s conclusion that MSHA’s District Manager
Riley did not abuse his discretion in rejecting the operator’s proposed plan in this case because
he failed to consider whether the operator’s proposed plan was suitable under section 303(0).

10 The results of the fan stoppage tests were inconclusive and certainly did not support
that the operator’s single-entry system was unsuitable to the conditions at the mine. The
Secretary’s own witness, MSHA engineer Thomas Morley, concluded that the fan stoppage test
results for both the dual-entry and single-entry system were similar — which undermines Riley’s
testimony that the dual-entry system is better at preventing gob air from coming out onto the face
than the single-entry system. Tr. 70-72.

21


The Judge relied on MSHA’s witnesses, who testified about measures to prevent airflow
from the gob into the working face in the dual-entry system. However, Beiter stated that “a
curtain was typically installed in the crosscut inby the longwall face where the headgate seal
would later be constructed. That curtain was described as ‘not tight.’” Sec. Ex. 10(a), at 4. In
Beiter’s view, “[c]onstruction of a more substantial control such as a permanent stopping or
framed check curtain (temporary stopping) instead of a curtain described as ‘not tight’ would
reduce the quantity of intake air leaking into the worked-out area.” Jd.; Tr. 10.

While this would prevent air from flowing through any opening into the gob on the
headgate side before the seal is constructed, such measure would be temporary and susceptible to
failure. Farinelli testified that the operator had tried to tighten the curtain in the past but had
encountered difficulties from roof falls occurring behind the longwall face which would blow
down the curtain, requiring mine personnel to have to go back in to rebuild it, creating significant
safe-access risks for miners. Tr. 153-54.

Thus, based on the record, we conclude that substantial evidence does not support
MSHA’s preference for the dual entry system let alone support an unmade finding that the
single-entry system was not adequate for reducing the potential for spontaneous combustion.

Material Handling and Roof Hazards

While the Judge found that Riley had a reasonable basis to believe that material handling
did not pose a significant hazard at the mine and that roof hazards were not more likely to occur
under the dual-entry system, 39 FMSHRC at 650, 652, the evidence is uncontroverted that the
operator’s plan would minimize the risks to miners of material handling and roof control hazards
associated with the construction of seals immediately adjacent to the unsupported longwall gob.
Sec. Ex. 6 at 2. By not requiring the operator to maintain the tailgate No. 2 entry, miners would
not be exposed to roof control hazards. Tr. 82, 120. It appears that the Judge failed to recognize
the significant risk involved in maintaining the second entry. Under the operator’s current dual-
entry plan, over 100 seals are constructed each year immediately adjacent to the gob. Sec. Ex. 6.
Beiter even conceded that it is preferable to build the seal in advance of the longwall rather than
right next to the gob. Tr. 12, 48.

Although MSHA’s witnesses testified that the operator has been doing a “pretty good
job” in mitigating the hazards that relate to roof control and material handling, RH Tr. 43-45, 81-
83; Tr. 14-15, 49-50, an operator’s diligent efforts at ensuring miners’ safety is not tantamount to
aconclusion that the dual-entry system is itself suitable, let alone support for the conclusion that
the single-entry system is unsuitable. Such a conclusion would penalize the operator for its
safety record and would undermine the Act’s purpose.

Ultimately, we conclude that substantial evidence supports that the Secretary only
presented evidence arguing, and even failing there, for MSHA’s preference for the MSHA
endorsed system and did not introduce substantial evidence to show that, in the words of
MSHA’s ventilation plan manual, the operator’s proposed plan was not appropriate to achieve
the safety and health requirements for the mine. This is precisely the same sort of
decisionmaking the Tenth Circuit found unacceptable in Canyon Fuel. Here, as in that case,

27


proposed plan was arbitrarily driven by a preference for MSHA’s dual-entry system, as MSHA
Official Kevin Stricklin had instructed Riley not to approve the operator’s plan regardless of the
results of the fan stoppage test. Tr. 161-62.

Detection and Removal of Noxious Gases

The Judge found that District Manager Riley had explained in his testimony and letters to
Signal Peak that the dual-entry system is “more effective” because it helps to prevent noxious
gas accumulations in the gob from entering the working areas. 39 FMSHRC at 652. Note the
clear determination that MSHA and the Judge engaged in a comparison study rather than
suitability analysis. MSHA provided no evidence that Signal Peak’s plan was not adequate for
operation of the mine in compliance with all mandatory safety standards for ventilation. In
particular, the Judge cited three different events that MSHA said could cause the release of
noxious gases or low oxygen to occur: (1) a fan stoppage; (2) the air pressure in the tailgate
entries and face becoming lower than the gob’s air pressure — which would create a path of least
resistance for the gases to travel from the gob to the working areas — or (3) a delayed rock fall
that could push gob air out on the face. RH Tr. 36-37, 111-12.

MSHA’s rejection of the single-entry system was premised on the erroneous assumption
that a single-entry would permit low-oxygen gob air to enter the face. Tr. 79, 131, 143, 145-46.
The Beiter report is based upon “expectations.” However, these expectations failed to take into
account the nature of the blowing ventilation system employed at Signal Peak. As Signal Peak
pointed out, the blowing ventilation system was distinguishable from an exhausting ventilation
system.'* In the latter, it is more common to encounter higher levels of methane at the tailgate
drive, because the tendency is to pull air from the gob.'> SP Br. at 21-22; Tr. 131. In fact, prior
to employing the blowing ventilation system, the operator did experience lower levels of oxygen
coming out of the gob onto the face, prompting the change from the exhausting system to the
blowing system. Tr. 188. Because the air pressure at the face is greater than in the gob, under
normal mining, noxious gases do not leak out of the gob onto the face under the blowing system.
Tr. 130, 143.

Moreover, very importantly, the actual conduct of the fan stoppage tests demonstrated
that even when the system was not functional, the oxygen levels were better with the single-entry
system, contrary to MSHA’s unsubstantiated speculation. Tr. 163; RH Tr. 89-90; Sec. Ex. 15(a).
The actual tests, therefore, contradict the “expectation” basis for the incorrect supposition in the
Beiter report thereby undercutting MSHA’s rationale for preferring the dual entry system.
Certainly, they do not support a finding that the single entry system was not suitable in the
context of this case.

'4 An “exhausting system” means a fan pulls or draws air through the mine. The danger
of an exhausting system, however, is that it may pull air into the gob through cracks in the mine
surface, which increases the danger of spontaneous combustion in the gob. Tr. 250-51. Under
the current “blowing system,” this danger is reduced when fans push and direct the air through
the mine.

1s Significantly, Signal Peak’s mine did not have elevated levels of methane. See Stip. 3.

23


Most recently, in a case particularly relevant here, the United States Court of Appeals
for the Tenth Circuit reviewed a Commission decision regarding whether an escapeway met the
suitability requirements of 30 C.F.R. § 75.380(d)(5).° The Commission, by a 2-2 vote, left
standing an Administrative Law Judge’s finding that the escapeway used by the operator was
not the most direct, safe and practical route to the nearest mine opening “suitable” for the safe
evacuation of miners. Canyon Fuel Co., LLC, 39 FMSHRC 1578, 1578-79 (Aug. 2017), aff'd
in part and vacated in part, 894 F.3d 1279 (10th Cir. 2018).

On appeal, the circuit court addressed the Secretary’s burden of establishing a violation
of the escapeway standard:

To establish a violation of § 75.380(d)(5), however, “[iJt is
insufficient for the Secretary to merely cite the designated route as
being out of compliance with the regulation.” S. Ohio Coal, 14
FMSHRC at 1785. Rather, “it is the Secretary’s burden to prove
that, as compared to the designated route, there is at least one other
escapeway route that [he] has determined more closely complies
with the standard’s requirement.” Jd.

894 F.3d at 1295-96. The circuit court then turned to an analysis of whether the Secretary had
presented substantial evidence in support of its position. The court found that the Secretary had
failed to carry his burden and reversed the Judge’s decision. Jd. at 1296-1300.

Pertinent to this case, the circuit court soundly rejected any notion that a Judge or the
Commission must accept MSHA disapproval of a plan merely because MSHA finds another
plan to be preferable. Even more pertinent, the court’s decision illustrates a point of
fundamental importance to this case — namely, the test of suitability is not which plan MSHA
might prefer, but instead whether the plan (i.e., route in Canyon Fuel) proffered by the operator
is suitable. In other words, the suitability determination is not an opportunity for MSHA to
design a route or develop a plan for the operator. MSHA’s duty is to review the plan submitted
by the operator and determine whether it achieves the requisite safety and health requirements
at the specific mine.”

§ 30 C.F.R. § 75.380(d)(5) provides “[eJach escapeway shall be .. . [I]ocated to follow
the most direct, safe and practical route to the nearest mine opening suitable for the safe
evacuation of miners.”

7 Section 75.380(d)(5) is an unusual suitability provision. It does not require MSHA to
determine only whether an escapeway is sufficient to reach a mine opening “suitable” for safe
evacuation. Instead, if there are more than one escapeways to a suitable evacuation point,
MSHA must decide whether the escapeway designated by the operator is “the most direct, safe
and practical route.” Therefore, unlike section 303(0) that mandates only that the ventilation
plan be suitable, section 75.380(d)(5) may require comparison of alternative “suitable”
escapeways. In the present case, MSHA has not analyzed the operator’s plan in terms of its
suitability. As in Canyon Fuel, this is a fatal flaw. It is self-evident from the record evidence in
the case and the specious and, at times, contradictory, rationales offered by the agency that the
District Manager made up his mind that he preferred the existing plan and then cobbled together

18


lower than the gob’s air pressure, which would create a path of least resistance for the gases to
travel out from the gob to the working areas, or (3) a delayed rock fall that could push gob air out
on the face. RH Tr. 36-37, 111-12.

Riley testified that under the current plan, in these scenarios, the “back-around return” in
the dual-entry system acts as a “pressure relief valve” to help prevent the gob air from coming
out onto the face. RH Tr. 35. Specifically, the air that flows inby through the gob at the tailgate
from the “T-Split” pushes and directs the noxious gob gases up crosscut 49 and then outby in
tailgate entry number 2 (the “back return” entry), which is sealed off from entry number 1. RH
Tr. 35, 115-16; see also Sec. Ex. 24.

By contrast, the operator’s proposed single-entry system would eliminate tailgate entry
number 2, which means that any noxious gas accumulations would exit the gob and flow directly
into tailgate entry number 1, where miners work. Sec. Ex. 26; RH Tr. 117-18, 121-22; see also
Sec. Ex. 10(a) at 3 (Beiter Report) (concluding that the “potential for miners exiting the tailgate
side of the longwall face to be exposed to more elevated contaminant levels is greater in a
[single-entry] system than in a dual tailgate return system incorporating a back return.”).

Signal Peak claims that the results of a fan stoppage test’ contradict MSHA’s concerns.
It asserts that the oxygen levels for the single-entry test fell to a “slightly lesser degree” than the
dual-entry test, and that therefore the single-entry system was just as safe, if not slightly safer,
than the dual-entry system. Accordingly, it contends that Riley’s rejection of the single-entry
plan was arbitrary.

‘ The test was meant to determine how quickly gases would come out of the gob into the
working face in the event of a fan stoppage.

5 Signal Peak also points to testimony from Morley regarding the fan stoppage tests,
which could potentially be interpreted to suggest that noxious gas and low oxygen would be
unlikely to exit the gob in the event of a fan stoppage, under the single-entry system. See, e.g.,
Tr. 79 (“We didn’t find many contaminants at all”); Tr. 80-81 (stating that “good quality” air
came out from behind the shields); SP Post-Hrg. Br. at 16. This testimony is not relevant,
however, because Morley’s statements were made in response to questions from Signal Peak’s
counsel about the air quality that had occurred during the time in between the two fan stoppage
tests. See Tr. 79 (Q: “[D]id you compare on Monday with readings on Tuesday and Wednesday
to see whether there were more contaminants on the dual entry or the single entry?”) (emphasis
added). The second test did not occur until Thursday, April 28, 2016. Sec. Ex. 15 at 4. As such,
the Judge appropriately did not give much weight to Morley’s testimony in favor of the operator
on this issue.

For the same reason, we reject the operator’s argument that the air in the gob would not
come out into the face during normal mining operations because the mine face has higher air
pressure than the gob. Tr. 130, 143. MSHA was not concerned with normal mining operations.
MSHA is concerned with aberrations from normal mining operations — where the ventilation is
being disrupted or not properly controlled (such as a drop in barometric pressure or a loss of fan
power). RH Tr. 122-23.

10


Distribution:

R. Henry Moore, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1500
401 Liberty, Avenue

Pittsburgh, PA 15222

Lynne B. Dunbar, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th Street South, Suite 401
Arlington, VA 22202-5450

Ali Beydoun, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

April Nelson, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

Melanie Garris

Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Administrative Law Judge Margaret Miller

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-2536


A. The “Arbitrary and Capricious Standard” of Review Applied by the Judge was
Appropriate and Consistent with Legal Precedent.

Signal Peak argues that the Judge erred in applying an “arbitrary and capricious” standard
of review, and asks the Commission to reconsider its decisions in Prairie State Generating Co.,
35 FMSHRC 1985, 1989 (Jul. 2013) and Mach Mining, LLC, 34 FMSHRC 1784, 1790 (Aug.
2012). Signal Peak urges the Commission to adopt an approach under which, upon appeal of a
ventilation plan dispute, the Judge would hold a de novo hearing at which the Secretary is
required to prove that the operator’s plan is unsuitable, and if so, that MSHA’s plan is suitable.
SP Br. at 13-19; Oral Arg. Tr. 12. We decline to do so.

The Commission has recognized the Secretary’s discretion in the ventilation plan process,
relying upon the Act’s legislative history. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690-
692 (May 1996); C.W. Mining Co., 18 FMSHRC 1740, 1746-47 (Oct. 1996). The Senate
Committee Report on the 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) (“Legis. Hist.”).

The Secretary’s ultimate responsibility to approve ventilation plans was expressly
affirmed by the D.C. Circuit and Seventh Circuit respectively. See Prairie State Generating Co.,
supra, aff'd, 792 F.3d 82, 91-92 (D.C. Cir. 2015); Mach Mining, LLC, supra, aff'd, 728 F.3d
643, 657-58 (7th Cir. 2013).

Prairie State and Mach Mining require a Judge to consider whether a district manager’s
decision to deny the operator’s proposed ventilation plan was made arbitrarily, capriciously, or
otherwise amounted to an abuse of discretion. Mach Mining,728 F.3d at 658; Prairie State
Generating Co., 792 F.3d at 93. Under this standard, a district manager’s action may be
considered arbitrary and capricious if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983). We continue to apply this standard here.”

We reaffirm the application of the “arbitrary and capricious” standard of review in
ventilation plan disputes as best effectuating the independent responsibilities delegated to MSHA
and to the Commission by the Mine Act. As the court recognized in Mach Mining, the process
delegated to the Secretary of approving mine-specific ventilation plans involves a congressional

? Our colleagues candidly acknowledge that they believe the decisions of the Seventh
Circuit in Mach Mining and the D.C. Circuit in Prairie State Generating Co. were wrongly
decided. Slip op. at 17 n.5. Indeed, their opinion is predicated on a legal theory that is
antithetical to those two circuit court decisions.


Accordingly, the Judge affirmed the citation.

Il.

Separate Opinions of the Commissioners

Commissioners Jordan and Cohen, voting to affirm the Judge:

We vote to affirm the Judge’s conclusion that District Manager Riley’s decision to reject
Signal Peak’s proposed single-entry ventilation plan was not arbitrary and capricious. The
record reflects that District Manager Riley carefully weighed several criteria before deciding to
reject the operator’s proposed plan. For instance, he determined that although the single-entry
plan would offer the benefit of potentially diminishing exposure to certain hazards, such as
spontaneous combustion and roof control hazards, any benefit would come at the expense of
protection from other potential hazards, such as an increased likelihood that miners would be
exposed to contaminated air.

The District Manager did not dismiss the operator’s concerns regarding spontaneous
combustion. Rather, he determined that the proposed additional protections against the risk of
spontaneous combustion would be marginal because the mine had already taken adequate steps
to control spontaneous combustion by injecting nitrogen into the gob and installing a blowing
system of ventilation. District Manager Riley reasonably focused on the hazard of oxygen-
deficient air exiting the gob into the areas where miners work. In sum, Riley rejected the single-
entry plan, concluding that the plan “will not ensure that [contaminated] air” from the gob would
not “enter the longwall face exposing miners to low [oxygen] levels at the tailgate and to gob
gasses [sic] moving outby around the last shield.” Sec. Ex. 7.

The Judge concluded that Riley reasonably evaluated the relevant factors and specific
conditions of the mine prior to his determinations about the proposed plan. The Commission is
not in a position to substitute its view for the expertise of the District Manager on this highly
technical issue. Instead, the law requires us to determine whether the Judge’s findings that
informed her decision, on whether the District Manager’s decision was arbitrary and capricious,
was supported by substantial evidence. We conclude that substantial evidence supports the
Judge’s findings.'

' We also uphold the District Manager’s and Judge’s decisions as necessary to prevent
the weakening of standards under section 101(a)(9) of the Mine Act. 30 U.S.C. § 811(a)(9). In
our view, the Act’s prohibition of weakening of mine health and safety standards is equally
applicable to ventilation plans. Just as new mandatory standards may not “reduce the protection
afforded miners” provided by the standards they replace, see id., we would decline to read new
plans — enforced as mandatory standards — to reduce the protection of miners provided by the
plans they replace. UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989) (holding that roof control
plans are enforceable as mandatory standards) (citing Zeigler Coal Co. v. Kleppe, 536 F.2d 398
(D.C. Cir. 1976)).


The circuit court’s first inquiry in examining the substantial evidence issue was whether
the operator’s exit point was suitable when examined on its own and without reference to the
MSHA plan. After the court determined that the point of exit under the operator’s plan was
suitable, it then turned to the unique aspect of comparing routes of exit under the governing
standard. Jd. at 1297-98.

In Canyon Fuel, there was no dispute that the escapeway preferred by the Secretary
provided a preferable location for exiting the mine. It had more room and quicker access to
medical assistance. However, the operator’s escapeway was “suitable” notwithstanding the
better conditions at the point of exit under MSHA’s preferred route.

Canyon Fuel, therefore, perfectly illustrates that MSHA must make its suitability
determination based on the operator’s specific plan. Even in the unusual circumstances where
the mandatory safety standard required a comparison of escapeways, MSHA could not conclude
an escapeway was unsuitable because it preferred certain characteristics of an alternate
escapeway. It could not compare escapeways and find one “more suitable” than the other. The
court required an initial determination of whether the escapeway developed by the operator was
suitable. Only then did the comparison aspect of this specific regulation come into play.

This is a critical point for this case. Here, MSHA’s duty was not to determine which of
two plans it preferred or to evaluate the proffered plan as though it were a possible alternative to
the existing plan. MSHA’s task was to determine whether the plan submitted by the operator
was suitable. This task does not require or permit formulation by MSHA of a new plan or
comparison by MSHA with an existing plan. The operator’s presentation of the plan calls for a
freestanding, fact-based determination of whether the proffered plan is suitable — that is,
whether it is appropriate for achieving the safety and health requirements at the specific mine.
Where, as in this case, there has been no finding or evidence showing that the operator’s plan
has failed to meet those requirements, MSHA’s rejection of the operator’s suitable plan and
demand of a different plan, even applying the Prairie State standard, is an abuse of discretion.

whatever support he could find to purport that MSHA’s plan was preferable, without holding the
operator’s plan to be unsuitable. Contrary to our colleagues’ claim in footnote 3 of their opinion,
MSHA never made a determination that safety would be unacceptably compromised, taking into
account the relative risks and benefits of both plans. The agency relied on evidence that does not
support its position, such as the fan test results; dismisses without explanation legitimate and
evidence-based concerns about material handling safety concerns; and asserts simultaneously
that its plan is superior — again, using the wrong standard — because it provides better response to
spontaneous combustion, while diminishing the operator’s concerns about the occurrence of
spontaneous combustion — which is better addressed by the operator’s plan. In short, the
decision is hobbled by the kind of incoherent and erratic rationalizing that marks arbitrary and
capricious agency actions.

8 To be sure, because good faith negotiations are required before MSHA rejects a plan, if
MSHA does not find a plan suitable, MSHA must discuss the plan and suggest changes that
would satisfy its concerns with achieving the requisite safety and health. But MSHA may not

19


B. Substantial Evidence Supports the Judge’s Findings.

1. Substantial Evidence Supports the Judge’s Finding that the District Manager
Reasonably Concluded that the Proposed Single-Entry Plan Would Create

an Unacceptable Risk of Noxious Gob Gases and Low Oxygen Entering
Areas Where Miners Work.

The operator’s proposed single-entry plan would change the manner in which the air
travels after sweeping the working face. Specifically, the proposed plan would omit the “T split”
and “back around” return that are components of the dual-entry plan; instead the air would leave
the mine in a single entry, the same entry in which miners work. 39 FMSHRC at 645.

The Commission reviews the Judge’s factual findings under the substantial evidence
standard of review. See 30 U.S.C. § 823(d)(2)(A)(ii)(). “Substantial evidence” means “such
relevant evidence as reasonable minds might accept as adequate to support [the Judge’s]
conclusion even if it is possible to draw two inconsistent conclusions from the evidence.”
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) (citation
omitted); see also Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989). In
reviewing the whole record, an appellate tribunal must consider anything in the record that
“fairly detracts” from the weight of the evidence that supports a challenged finding. Midwest
Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951).

The Judge credited the testimony of both District Manager Riley and the Secretary’s
expert witness Beiter, who explained that because the blowing ventilation system puts pressure
on the gob, noxious gases or low oxygen may be released into areas where miners work, if the
proposed single-entry system was used. 39 FMSHRC at 647; RH Tr. 35-36, 117-18. The
mined-out gob contains locations where noxious gases can accumulate. Riley and Beiter were
concerned about three different events which could cause the release of noxious gases or low
oxygen to occur: (1) a fan stoppage; (2) the air pressure in the tailgate entries and face becoming

Moreover, in actual practice, our colleagues’ insistence that MSHA must view an
operator’s proposed plan in a vacuum and turn a blind eye to an alternative plan (even one
currently in effect at the operator’s mine) is difficult, if not impossible, to apply. As recognized
by Congress, ventilation issues are “complex and potentially multifaceted,” S. Rep. No. 95-181,
at 25 (1977), reprinted in Legis. Hist. at 613, and thus ventilation plans are more readily assessed
by balancing competing concerns in a mine, which necessitates an evaluation of potential
solutions and the potential effects of those solutions on other aspects of the plan. Thus, in
determining “suitability,” there are trade-offs which must be evaluated. In the present case,
MSHA’s plan emphasized protection from noxious gases entering working areas while Signal
Peak’s plan emphasized protection from spontaneous combustion. Rather than an arbitrary
determination of whether a plan (viewed with blinders on to avoid consideration of any other
options) is “adequate,” the process of evaluation involves a balancing of hazardous risks. Instead
of our colleagues’ formulation, we are guided by the D.C. Circuit’s statement in Prairie State
that as used in section 75.370(a)(1) “suitability is a discretionary, contextual exercise of expert
judgment regarding the safeguards needed to keep miners safe.” 792 F.3d at 93.

9


entry system and detracts from the Judge’s finding that the dual-entry system was better suited at
preventing gob air from coming out onto the face. Most importantly, there is not a finding or
evidence that the volume of air would not be suitable for the miners. The Judge accepted an
unproven MSHA preference and failed to cite substantial evidence that the single entry system
would not provide suitable atmospheric conditions.

The other type of hypothesized events that would disrupt the blowing ventilation system
were that a rock fall in the gob might push gob air out on the tailgate area or that, if air pressure
in the tailgate entry fell below the gob’s air pressure, gases might travel out from the gob to the
tailgate where miners occasionally are present. Signal Peak witnesses testified that there was no
evidence that a rock fall pushing gases into the tailgate had ever occurred or that such an event
was even likely to occur, and the Secretary did not contradict that testimony. Tr. 146, 155
(Farinelli’s testimony that no gob air was pushed onto the face due to falls in the gob).

With regard to a change in the air pressure differential allowing gob air to be pushed out
into the working area, Vice President of Engineering Farinelli testified that air pressure in the
active workings and gob are very similar and that air pressure in the gob would stay lower than at
the face. Tr. 145-46. Farinelli testified that even when the barometer has dropped, meaning that
the pressure in the gob was greater than in the mine generally, there had not been low oxygen
concentrations on the longwall face. Tr. 145. A blowing system avoids this issue by providing
air into the mine at higher than atmospheric pressure. Tr. 108, 145-46. Further, the blowing
system pushed a large volume of air across the longwall.

The mine typically has approximately 80,000 cubic feet per minute (cfm) of air
movement along the longwall face. Tr. 19. MSHA ventilation standards require 30,000 cfm
across the face of a longwall. 30 C.F.R. § 75.325(c)(1). Ina single return, all 80,000 cfm is sent
through one return. MSHA did not provide any evidence showing how a low quantity of
nitrogen or some other gas introduced into this flow by a single, never before occurring and
highly unlikely rock fall could cause the oxygen on the system to fall below an adequate level.
Further, there was no evidence of how long this entirely theoretical shortage of oxygen would
exist.

Finally, as for detection, Farinelli testified that in a single-entry system, the operator
collects weekly bag samples around the perimeter of the gob and at the tailgate to monitor for
early indicators of spontaneous combustion, which would serve the same purpose as the tube
bundle under the dual-entry system. Tr. 105-07, 147-48. Signal Peak also tests for air velocity
at the mouth of the tailgate. Tr. 147-48. Because the location of the monitoring in the single-
entry system is stationary, the operator contends that it would be more effective at providing
accurate readings of the trend of carbon monoxide (“CO”), which is a more accurate measure of
potential spontaneous combustion, whereas the monitor in the dual-entry system would be
continuously moved in the No. 2 entry and hence, less accurate of current trends. S. Br. at 27.
Thus, the evidence suggests that the operator’s plan would be as effective as the Secretary’s at
detecting noxious gases. Again, and most importantly, MSHA did not present any evidence that
the operator’s system was insufficient or not suitable. MSHA states only that it prefers its
concept to the operator’s, a position that fails to provide the substantial evidence necessary to

25


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

AUG 36 2018
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA)

¥. : Docket No. WEST 2016-624-R

SIGNAL PEAK ENERGY, LLC
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION
BY THE COMMISSION:'

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). At issue is whether the Administrative Law Judge properly
upheld the rejection by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) of a ventilation control plan proposed by Signal Peak Energy, LLC (“Signal Peak”).

In July 2016, MSHA issued a technical citation to Signal Peak alleging a violation of 30
C.F.R. § 75.370(a)(1).2 MSHA issued the citation after Signal Peak and MSHA reached an
impasse while negotiating provisions of the operator’s ventilation plan. The dispute arises from
MSHA’s denial of the operator’s request for approval to change its ventilation plan from a dual-
entry tailgate return system to a single-entry tailgate return system.

The operator had argued that changing its ventilation plan would decrease the amount of
oxygen in the gob, or mined-out area, thereby lessening the chance of spontaneous combustion,
and would reduce the risk of material handling and roof control incidents. MSHA in turn
expressed concerns that the operator’s proposed plan could cause noxious gob gases to enter an

' The votes of the four Commission members regarding whether to affirm the decision
below are evenly divided. All four members join in the factual and procedural background
section of this decision. However, Commissioners Jordan and Cohen join in one opinion voting
to affirm, while Acting Chairman Althen and Commissioner Young vote to reverse the Judge’s
decision.

2 Section 75.370(a)(1) states in relevant part that “(t]he operator shall develop and follow
a ventilation plan approved by the district manager” and that “[t]he plan . . . shall be suitable to
the conditions and mining system at the mine.” 30 C.F.R. § 75.370(a)(1).

1


currently built between headgate entries 2 and 3, and that the seals would obstruct access to the
primary escapeway in entry 2 if built prior to the gob advancing. See Sec. Ex. 24. This means
that, until the seal is constructed, there is an opening into the gob through which air could enter.
Id. Under the proposed plan, the seals would be between entries 1 and 2 and so could be built
before the longwall advances without obstructing access to the escapeway. SP Br. 25-26; see
also Sec. Ex. 26. This would prevent any temporary opening into the gob through which air
could enter.

Despite these arguments, we believe that the Judge did not overlook any material
evidence that the proposed plan would significantly decrease the risk of spontaneous
combustion. The Judge found that the “mine’s current ventilation plan [requiring a blowing
system] has been in place since January 2013 and has successfully limited spontaneous
combustion since that time.” 39 FMSHRC at 644-45. The Judge further concluded that Riley
reasonably determined that the risk of spontaneous combustion was suitably low under the
current plan, and that it was not necessary to decrease the amount of air entering the gob beyond
the current amount. Jd. at 652. These findings are supported by substantial evidence.

Riley testified that he had considered Signal Peak’s concerns that the current plan
imposes a significant risk of spontaneous combustion. RH Tr. 41-42. Specifically, Riley
testified that he had taken into account the fact that the mine has a lengthy incubation period (the
time for the coal in the gob to combust when exposed to oxygen).’ RH Tr. 41-43. Based on
these criteria, Riley had concluded that it was not necessary to decrease the amount of air
entering the gob below the current amount.

Furthermore, Riley testified that he had considered the fact that Signal Peak “inject[s]
nitrogen into the gob to help prevent spontaneous combustion” and explained that, since
December 2011, there have been no spontaneous combustion events at the mine, which indicated
to him that the present system is effective. RH Tr. 43, 105-07. Signal Peak’s Vice President of
Engineering Farinelli himself agreed that, since December 2011, the operator has been
successfully mining under the dual-entry system, and controlling spontaneous combustion. Tr.
176. Therefore, the record supports Riley’s determinations, which the Judge recognized, that the
risk of spontaneous combustion is low under the current plan, and that considerations of
preventing spontaneous combustion should not be a decisive factor here in determining the
suitability of the proposed plan.

Moreover, Riley testified that he had taken into account that the mine injects nitrogen 10-
15 crosscuts (2200 to 3300 feet) behind the face. RH Tr. 79-80; Tr. 31. This indicated to Riley
that there is no imminent threat of spontaneous combustion caused by the current practice of
introducing air a mere 225-285 feet into the gob on the tailgate side because, if the risk for
spontaneous combustion was so great, the mine would be injecting nitrogen much closer to the
longwall face. RH Tr. 43; see Sec. Ex. 24.

7 Incubation periods are based on the “temperature versus the moisture content versus the
oxygen content” of the mine. RH Tr. 42-43.

12


We disagree. Riley considered the results of the fan stoppage test and he determined that
the results did not favor one plan over the other. This determination was supported by
substantial evidence and was within the District Manager’s discretion. Furthermore, there is
evidence that the tests were not performed in accordance with the agreed upon protocols creating
doubt about the reliability of the results. 39 FMSHRC at 649.

The operator also suggests that the back-up fan at the mine rendered the District
Manager’s decision arbitrary and capricious. However, MSHA had provided an opportunity for
Signal Peak to supply necessary information about the back-up fan before it made its decision,
and the operator failed to do so.° We decline to consider this new information, which was never
communicated to MSHA. See, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 904 (D.C. Cir.
2006) (holding that interested parties may not “withhold relevant data [in rulemaking
proceedings] and blindside the agency on appeal”). Even assuming that we were to find that the
Judge erred in overlooking the evidence of the back-up fan, this constitutes harmless error
because there is still evidence of the other types of events that could have caused the release of
noxious gases or low oxygen into the areas where miners work, e.g., the air pressure in the
tailgate entries and face could become lower than the gob’s air pressure, which would create a
path of least resistance for the gases to travel from the gob into the working areas or a delayed
rock fall could occur, which would push gob air out on the face. RH Tr. 36-37, 111-12.

As such, we find that substantial evidence supports the Judge’s finding that the District
Manager reasonably concluded that the proposed plan would create an unacceptable risk of
noxious gob gases and low oxygen entering areas where miners work.

2. Substantial Evidence Supports the Judge’s Finding that the Risk of
Spontaneous Combustion Under the Current Ventilation Plan was Low.

Signal Peak argues that the Judge and the District Manager overlooked material evidence
that the proposed plan would significantly decrease the risk of spontaneous combustion. The
operator relies on the fact that the current plan directs a certain amount of air inby the number 1
tailgate entry for a distance of one crosscut (approximately 225-285 feet) along the inner edge of
the gob. Id. at 34; Tr. 128; SP Ex. EEE; Sec. Ex. 24. By contrast, the operator argues that the
proposed single-entry plan would introduce substantially less oxygen into the gob, which would
better prevent spontaneous combustion. SP Br. at 25; RH Tr. 78-79; Tr. 50-51, 128.

The operator also asserts that the proposed plan would introduce less oxygen into the gob
on the headgate side. Specifically, under the current plan, the crosscut seals cannot be installed
until after the longwall passes each crosscut. The operator emphasizes that the seals are

® Signal Peak had never submitted to MSHA any information regarding whether the
back-up fan had a separate power source or whether it could easily be activated — even though
MSHA had specifically requested this information. Sec. Ex. 10(a) at 5 (Beiter Report)
(requesting clarification on “the means or time necessary for implementing [the back-up fan’s]
usage following a main fan outage . . . [and] whether or not the backup main fan was powered by
a power source separate from the main fan”).

11


mandate that his representatives exercise independent judgment. 728 F.3d at 657. Therefore, the
ventilation plan approval process is more akin to the formulation of a safety standard rather than
the enforcement of that standard and, thus, a de novo hearing (prototypically granted when the
Secretary seeks to enforce a safety standard against an operator) regarding the proposed plan
would be inconsistent with Congress’s delegation of responsibilities. See id; see also Prairie
State, 792 F.3d at 91-92. Accordingly, the court in Prairie State held that a “deferential
[standard of] review appropriately respects the Secretary’s policymaking prerogative and ensures
that his determinations are reasonable and adequately supported by the evidence.” 792 F.3d at
92.

For these reasons, we deny Signal Peak’s request to abrogate Prairie State and Mach
Mining.

3 Our colleagues, purporting to rely on Secretary of Labor v. Canyon Fuel Co., 894 F.3d
1279 (10th Cir. 2018), assert that section 303(0)’s requirement that a ventilation plan be “suitable
to the conditions and mining system at the mine” limits the Secretary’s authority when reviewing
ventilation plans to a determination of whether the plan submitted by the operator to MSHA
“achieves safety and health requirements for adequate ventilation.” Slip op. at 15-17, 18. Our
colleagues expressly reject the idea that “suitable” may include a determination of which of two
proposed ventilation plans affords the greatest safety for miners. Thus, they state, “[s]ection
303(0) does not call for a ‘comparability’ analysis of potentially different ventilation plans.” Jd.
at 20. However, our colleagues provide no standard for determining when a proposed plan
“achieves safety and health requirements for adequate ventilation” and do not define the word
“adequate.” Their rejection of MSHA’s ability to compare the relative merits of alternative
ventilation plans lacks legal foundation.

Moreover, our colleagues fail to understand MSHA’s use of the word “minimum” in its
Handbook for Mine Ventilation Plan Approval Procedures. MSHA Handbook Series, Handbook
Number PH13-V-2, Mine Ventilation Plan Approval Procedures (Apr. 2013). The Handbook is
saying that once the ventilation plan is approved, it becomes the minimum standard for
ventilation requirements at the mine. In no way is MSHA suggesting that ventilation plans need
only provide minimum protection for miners.

Far from a decision which “perfectly illustrates” our colleagues’ position, slip op. at 19,
Canyon Fuel reiterated the principle set forth in Mach Mining, 728 F.3d at 658, and Prairie
State, 792 F.3d at 92, that “the Secretary acts arbitrarily if he ‘entirely fail[s] to consider an
important aspect of the problem.”” 894 F.3d at 1297. Indeed, we are not aware of any
pronouncement by the Commission or a circuit court in the history of the Mine Act and its
predecessor Coal Act going back to 1969 which sanctioned the idea that a ventilation plan is
“suitable” because it is adequate even though another plan for the same mine afforded better
protection for miners. Quite to the contrary, in UMWA v. Dole, supra, 870 F.2d at 666, the D.C.
Circuit held: “Thus when new standards replace existing mandatory health or safety standards it
is not sufficient that the new standards demonstrate a reasonable accommodation of the
competing goals of safety and efficient coal mine operation. The statute expressly mandates that
no reductions in the level of safety below existing levels be permitted, regardless of the benefits
accruing to improved efficiency.”


the suitability of the operator’s single-entry plan is whether substantial evidence shows that the
operator’s plan is not sufficient to achieve safety and health requirements related to the
possibility of entry of noxious gases into areas where miners work.'?

Rather, MSHA’s disapproval of the operator’s proposed plan was based largely on the
conclusion that the single-entry plan doesn’t justify that it will be “as effective at minimizing
risks” and thus “[w]e fee?” that the dual-entry return is the “best option.” Sec. Ex. 4 (emphasis
added). Further considering the pros and cons, MSHA stated in a subsequent rejection that “it
has been decided that dual tailgate entry is in the best interest for health and safety of the miners”
in part because “air course resistance of the tailgate would be four times the value of a dual
return.” Sec. Ex. 7. MSHA provided no explanation as to how this makes the operator’s plan
“unsuitable,” and the record does not support a conclusion that it is.

Citing a report prepared by Dennis Beiter, MSHA’s Senior Mining Engineer in the
Ventilation Division (“Beiter’s report”), finding that the dual tailgate return resulted in better
protection of miners through earlier detection of spontaneous combustion, MSHA rejected the
operator’s plan Sec. Ex. 10; Sec. Ex. 10a (the Beiter report). This finding makes no sense.
MSHA found that the risk of spontaneous combustion under the existing blowing system was so
low that the advantage of the operator’s plan to the prevention of a spontaneous combustion was
irrelevant. Beiter expressly testified “the present system is effectively slowing the potential for
spon com to occur in the workout areas of the longwall panels.” Tr. 106. Then, having found
very little or no risk of spontaneous combustion and no reason for a plan providing additional
preventative advantages, the agency cites possible better detection of a potential combustion as a
reason for preferring its plan. Therefore, in the agency’s view, outright protection was not useful
but earlier detection was. It is impossible to reconcile these theories.’

Beiter’s report did not find or even suggest that the operator’s ventilation plan was not
suitable. It reads from beginning to end as a “comparison” report. Substantial evidence does not
support that the operator’s plan was unsuitable, or even that MSHA’s plan was more suitable.
Rather, the evidence will indicate that District Manager Riley’s decision to reject Signal Peak’s

"As Canyon Fuel illustrates, if the operator’s plan was unsuitable, the cited benefits
would not make it suitable. In Canyon Fuel, if the exit point of the operator’s route were not
suitable, the much better conditions of the route of egress would not have made it the most direct
route to a suitable exit. Canyon Fuel, supra, 849 F.3d at 1295-96.

'2 Nonetheless, we must comment that the Secretary and Judge’s casual disregard for the
possibility of a spontaneous combustion in a mine with the potential for and history of such
events is troubling. Having had a combustion event, the operator took prudent steps to reduce
the chance of a repeat event. We would not easily dismiss any prudent steps at further reducing
the possibility of such an event.

'3 Asa matter of commonsense as well as safety, the operator clearly desires and designs
a system that provides the best chance of avoiding spontaneous combustion. In response to a
question of why any heating incident is a major event, Fairnelli responded, “[b]ecause [of] the
potential it has to catastrophically destroy the mine and, also, the danger it presents to every
person underground.” Tr. 119.

22


MSHA has utterly failed to address competing risks and benefits or to support its rejection of an
operator’s plan with competent evidence.
CONCLUSION
Based on the foregoing. we conclude that the Judge erred in applying the wrong legal

standard and conclude that substantial evidence does not support that the operator’s ventilation
plan was not suitable. Accordingly, we would vacate and reverse the Judge’s decision.

Uys 0 AL bee

William I. Althen, Acting Chairman

Lc,

Micl a ‘phe mifissioner

28


2. The Plan Negotiation Process

On January 12, 2015, the operator submitted the proposed plan to Russell Riley, District
Manager for MSHA Coal Mine Safety and Health District 9. On April 3, 2015, Riley rejected
the operator’s plan and requested additional information about seals and monitoring. In Riley’s
view, the operator failed to show that its plan would be “as effective [as the current dual-entry
plan] at minimizing risks to miners such as possible low [oxygen] and [methane] buildup near
the tailgate entries.” Sec. Ex. 4.

On April 23, 2015, the operator submitted another proposed single-entry plan, and met
with MSHA District 9 personnel approximately two weeks later to discuss it. On May 29, 2015,
Riley again rejected the operator’s plan. According to Riley, the proposed plan failed to ensure
that contaminated air from the gob would not “enter the longwall face exposing miners to low
[oxygen] levels at the tailgate and to gob gasses [sic] moving outby around the last shield.” Sec.
Ex. 7. Riley also stated that an increased likelihood of carbon monoxide overexposures and
spontaneous combustion would occur, as well as an increase in carbon dioxide.

On July 9, 2015, Signal Peak and MSHA District 9 personnel met again to discuss the
operator’s proposed single-entry plan. Rather than approve the plan, Riley requested assistance
from the MSHA Director of Technical Support at the Ventilation Division of the Pittsburgh
Safety and Health Technology Center.

On January 13, 2016, MSHA Technical Support issued a report prepared by Dennis
Beiter, Senior Mining Engineer in the Ventilation Division (the Beiter report).° The report
recommended against approval stating, “the dual tailgate return system . . . results in better
protection for miners and enables earlier detection of spontaneous combustion.” Sec. Ex. 10
(quoting Sec. Ex. 10a at 2).

Riley then rejected the operator’s proposed plan for the third time, relying on Beiter’s
report. The findings of better protection against buildups of toxic gases, lowered oxygen, and
better monitoring were the basis for disapproving the Signal Peak plan.

In March 2016, MSHA District 9 requested that MSHA Technical Support perform two
fan stoppage tests using the mine’s existing dual-entry tailgate return and a simulated single-
entry tailgate return. On April 25-28, 2016, the fan stoppage tests were performed by Thomas
Morley, a Mining Engineer in the Ventilation Division, and others.’ On May 3, 2016, MSHA
Technical Support issued a report prepared by Morley. On May 11, 2016, Riley sent a letter to
the operator referencing Morley’s report, which stated that unacceptably low levels of oxygen
occurred during the fan stoppage tests for both plans. Although Morley did not suggest that the
operator’s proposed plan be denied, he recommended that the operator add language to its plan to

6 Beiter was not told whether District 9 had a preference of one plan over the other, but
instead was directed to perform an independent review. Tr. 108-09.

7 The first fan stoppage test occurred on Monday, April 25, for the dual-entry system. It
lasted 90 minutes. The second 90-minute test for the single-entry system occurred three days
later on Thursday, April 28.


Acting Chairman Althen and Commissioner Young, in favor of reversing:

We would find that the Judge applied the wrong legal standard and that substantial
evidence! does not support a finding that the operator’s ventilation plan was not suitable — that
is, was not appropriate to meet the requirement to provide safe and healthful ventilation at the
specific mine. Accordingly, we would reverse the decision of the Administrative Law Judge and
approve the operator’s plan.

Legal Principles

The focal point of this case is the requirement of section 303(0) of the Mine Act that an
operator must prepare and MSHA must approve a ventilation plan “suitable to the conditions and
the mining system of the coal mine... .” 30 U.S.C. § 863(0).” In turn, the issue narrows further
to the meaning of the term “suitable” and whether substantial evidence supports the Judge’s
determination that the plan prepared by the operator was not suitable.

The Mine Act does not define “suitable.” Courts of appeal and the Commission have
held that in the absence of a statutory definition or a technical usage of the term “suitable,” we
apply the ordinary or dictionary meaning of the word. Canyon Fuel Co., LLC v. Sec’y of Labor,
894 F.3d 1279, 1288 (10th Cir. 2018); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996).
Consequently, for our purposes, “suitable” means “adapted to a use or purpose,” “having the
necessary qualifications: meeting requirements” and “fitted for, adapted or appropriate to a
person’s .. . needs.” Canyon Fuel, 894 F.3d at 1288.

The purpose of a ventilation plan is to provide safe and healthful atmospheric conditions.
MSHA has stated correctly “[a] sound ventilation plan is essential to maintaining adequate
ventilation and respirable dust control in the mine.” MSHA Handbook Series, Handbook
Number PH13-V-2, Mine Ventilation Plan Approval Procedures (Apr. 2013). MSHA further
correctly identified the test for acceptance stating, “[p]lans adopted by the mine operator and
approved by the district manager define minimum safety and health requirements for the mine.”
Id. Therefore, a suitable ventilation plan — a plan that MSHA must approve — is one that

' “Substantial evidence” means “such relevant evidence as reasonable minds might
accept as adequate to support [the Judge’s] conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Landes Const. Co. v. Royal, 833 F.2d 1365, 1371
(9th Cir. 1987); see also Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing the whole
record, an appellate tribunal must consider anything in the record that “fairly detracts” from the
weight of the evidence that supports a challenged finding. Midwest Material Co., 19 FASHRC
30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

? Signal Peak was issued a technical citation alleging a violation of 30 C.F.R.
§ 75.370(a)(1), which mirrors the language of the Mine Act and provides in relevant part that
“[t]he operator shall develop and follow a ventilation plan approved by the district manager” and
that “[t]he plan shall be designed to control methane and respirable dust and shall be suitable to
the conditions and mining system at the mine.”

15


In a 3-2 decision issued in 2012, a Commission majority held that the Secretary’s
burden consisted of showing that MSHA’s disapproval of the suitability of a plan was not an
abuse of his discretion and was not arbitrary and capricious. Mach Mining, LLC, 34 FASHRC
1784, 1790 (Aug. 2012), aff'd, 728 F.3d 643, 658 (7th Cir. 2013). That standard requires that
the Secretary show MSHA “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a ‘rational connection between the facts found and the
choice made.”” Jd. at 1790-91, citing Twentymile Coal Co., 30 FMSHRC 736, 754, 773-74
(Aug. 2008). The decision did not remove the burden of proof from the Secretary, but adjusted
the standard of proof to an abuse of discretion test. The abuse of discretion standard of proof
does not affect the application of the substantial evidence test as applied to a Judge’s findings of
fact.

The Commission reaffirmed Mach in Prairie State Generating Co., LLC, 35 FMSHRC
1985, 1989 (July 2013). Subsequently, the United States Court of Appeals for the District of
Columbia Circuit affirmed the Commission’s decision. Prairie State Generating Co., LLC v.
Sec'y of Labor, 792 F.3d 82, 92 (D.C. Cir. 2015).4 The circuit court did not find the Mine Act
mandated use of the abuse of discretion standard, but instead accepted the Commission’s
deferential use of that standard stating “[w]e therefore hold that the standard of review applied
by the Commission was at least a permissible one.” Jd. at 93. Again, the circuit court’s
decision left in place the substantial evidence requirement that requires MSHA to support a
denial of a plan through presentation of facts pertaining to the proffered plan that sustain a
reasonable conclusion that the plan did not provide for the safety and health requirements at the
specific mine.°

‘ In doing so, the circuit court commented upon the expertise of MSHA in reviewing
ventilation plans. With all respect for the circuit court, the Commission and its Judges often deal
with complex issues involving expert witnesses. For example, disputes regarding whether a
violation is significant and substantial turn on the evidence for the Secretary and operator of the
reasonable likelihood of a hazard and the reasonable likelihood of an injury if the hazard occurs.
In S&S cases, the Secretary must establish a preponderance of the evidence demonstrating the
reasonable likelihood of a hazard or injury. Often this involves disputed testimony between
contending experts. Such inquiries call for determinations by Judges very much in the nature of
whether a ventilation plan is fit for providing ventilation in accordance with MSHA’s mandatory
standards.

5 We continue to believe that Prairie State Generating Co., 35 FMSHRC 1985 (July
2013), aff'd, 792 F.3d 82 (D.C. Cir. 2015) and Mach Mining, LLC, 34 FMSHRC 1784, 1790
(Aug. 2012), aff'd, 728 F.3d 643 (7th Cir. 2013), were wrongly decided. Contrary to our
colleagues’ assertions (slip op. at 7 n.2), we recognize that those decisions were upheld by the
circuit courts as permissible interpretations by the Commission, and we do not “reject” the
holdings in those decisions because it is unnecessary to do so. Here, the outcome does not turn
upon the standard of review but rather the fact, demonstrated below, that MSHA’s decision to
reject the operator’s proposed plan was not analyzed under the safety standard provided by the
statute and was not supported by substantial evidence.

17


Related Terms, 529 (2d ed. 1997) (“DMMRT’)? Due to this danger and because it had been
experiencing elevated levels of carbon monoxide (“CO”) in the gob, Signal Peak changed from a
“bleeder entry” system to a “bleederless” system in January 2010.

A bleederless system reduces the potential for spontaneous combustion by limiting the
oxygen that is available in the longwall gob. Jd. The gob area must be isolated and sealed from
the active mining area. Accordingly, a bleederless ventilation system requires the progressive
installation of seals as the panel is mined.

In December 2011, Signal Peak experienced a major event of spontaneous combustion,
which resulted in the loss of approximately 22 production days. The event was caused by
oxygen pulled in by the mine’s exhausting ventilation system through subsidence cracks on the
surface into the rider seam’ above the main seam being mined.

As a result, Signal Peak, with the approval of MSHA, instituted additional measures on
subsequent longwall panels in order to decrease the risk of spontaneous combustion. These
measures included lowering the gob’s oxygen levels by injecting nitrogen into the gob and
monitoring the oxygen levels on an ongoing basis. Further, in January 2013, the operator
replaced the exhausting ventilation system with a blowing ventilation system in order to
pressurize the gob and decrease the danger of pulling air into the gob through cracks in the mine
surface.

In January 2015, Signal Peak submitted a revised ventilation plan that proposed an
additional change, which is the subject of this litigation. It proposed changing from a system in
which air flows out of both tailgate entries (“dual entry system”) to a system in which the air
exiting the longwall would flow only through a single entry (“single entry system”). See
attached diagrams, Sec. Ex. 24 (the dual entry system) and Sec. Ex. 26 (the single entry system).

Under the dual entry system, the operator leaves the tailgate entries open to the first
crosscut inby the panel. As ventilating air exits the longwall, its flow is divided with some going
down entry 1 (entry closest to the panel) while a separate quantity of air is directed back to the
cross cut and then into the other tailgate entry (entry 2) for exit (sometimes called the “back-
around return”). Under the single entry system, the tailgate entries are mined as the longwall
develops, and air leaving the longwall exits only through the tailgate entry 1. Like the current
plan, the proposed single entry plan would be a bleederless, blowing air system.

3 The necessary components of spontaneous combustion are: (1) coal of a suitable
chemical and physical nature; and (2) sufficient broken coal and air leaking through it to supply
the oxygen needed. DMMRT at 529.

‘ Bleeder entries” are defined as “[p]anel entries driven on a perimeter of a block of coal
being mined and maintained as exhaust airways to remove methane promptly from the working
faces to prevent buildup of high concentrations either at the face or in the main intake airways.”
DMMRT at 55.

5 A “rider seam” is defined as “[a] thin coal seam above a workable seam, or a seam that
has no name.” DMMRT at 460.


sustain the Secretary’s burden of proof to show the operator proposed plan was inadequate to
maintain adequative ventilation and respirable dust control.

Spontaneous Combustion

Even if one accepts MSHA’s inherently contradictory position that prevention of a
spontaneous combustion was not important but early detection was, no actual evidence supports
a finding that the operator’s plan was not suitable — that is, did not achieve the purpose of a
ventilation plan. First, as noted, MSHA’s witnesses admitted that the risk of spontaneous
combustion was low given the operator’s change to a bleederless system in Janaury 2010. Tr.
185, 253. The operator did so because it had been experiencing elevated levels of CO in the gob.
Stip. 5. The “bleederless” system limits the CO and oxygen in the gob, thus reducing the
potential for spontaneous combustion. Jd.

Second, the introduction of nitrogen into the gob served to reduce the level of oxygen in
the gob, thereby further reducing the possibility of spontaneous combustion. Stip. 6; RH Tr. 79-
80; Tr. 31. In December 2011, Signal Peak experienced a spontaneous combustion event near
the inby end of the headgate on the 2R panel. Tr. 252; Stip. 6. It was caused by oxygen pulled
in by the mine’s exhausting ventilation system through subsidence cracks on the surface into the
rider seam above the main seam being mined. As a result of the event, Signal Peak, with the
approval of MSHA, instituted additional measures on subsequent longwall panels, including
lowering the gob’s oxygen levels by injecting nitrogen into the gob about 10-15 crosscuts inby
the face while monitoring the oxygen levels on an ongoing basis. Stip. 6; RH Tr. 79-80; Tr. 31.
In addition, in January 2013, the operator replaced its exhausting system with a blowing
ventilation system. Tr. 185. By making these changes, the operator has prevented any more
occurrences of spontaneous combustion. RH Tr. 176.

As Signal Peak noted, the dual-entry system directs a certain amount of air inby in the
No. | entry of the tailgate for a distance of one crosscut (approximately 200 feet or more). Tr.
34, 47, 128. This introduces more oxygen into the gob than the single-entry system, which is
counter to the goal of reducing oxygen in order to prevent spontaneous combustion. MSHA’s
witnesses conceded this point. Tr. 50, 128; RH Tr. 78-79. The operator’s proposed plan would
omit the “T-split” and “back-around return” in the tailgate and seal off the No. 2 entry, and
instead have the air leave the mine in just one entry, tailgate No. 1 entry. SP Ex. M. According
to Farinelli, the single-entry system would better control spontaneous combustion by reducing
the amount of air introduced into the longwall gob both on the headgate side and through the
back return. Tr. 118-19, 126. Because in a single-entry system the gob isolation seals would be
built during the longwall retreat in the crosscuts between the Nos. 1 and 2 entries, rather than
between the Nos. 2 and 3 entries after the longwall face passes, air is not introduced into the gob
along the headgate side.'® Tr. 109-10; RH Tr. 83-86.

'8 There is no evidence in the record that Riley considered the operator’s concern that the
dual-entry system would increase the risk of spontaneous combustion on the tailgate side.
Although Beiter testified that he had considered this concern at the time he drafted his report, he
conceded that his report failed to explicitly address the issue. Sec. Ex. 10(a) at 2; Tr. 27.

26


area where miners work, reduce available oxygen in that area, and result in less effective
monitoring for a spontaneous combustion event.

The Judge affirmed MSHA’s technical citation. In doing so, she held that MSHA’s
rejection of Signal Peak’s proposed plan was not arbitrary and capricious. 39 FMSHRC 638,
653 (Mar. 2017) (ALJ). Signal Peak filed a petition seeking discretionary review of the Judge’s
decision, which we granted.

Two Commission members vote to affirm the Judge’s decision and two Commissioners
vote to reverse the Judge’s decision. As a result, the Judge’s decision will stand as if affirmed.
Pennsylvania Elec. Co., 12 FMSHRC 1562 (Aug. 1990), aff'd on other grounds, 969 F.2d 1501
(3d Cir. 1992).

I.

Factual and Procedural Background

A. Factual Background
1. The Mine’s Operations

Signal Peak operates the Bull Mountain Mine, a large underground coal mine in
Montana. The operator primarily mines its coal using the longwall method.

During longwall mining, the operator drives two sets of lengthy parallel entries on each
side of a block of coal. At the end of the entries, the operator creates a crosscut perpendicularly
(at right angles) to connect the parallel entries. The coal along the perpendicular cut becomes the
longwall face.

A shearer moving back and forth across the face extracts the coal from the longwall. In
turn, a conveyor system in an entry transports the coal from the face. The set of entries
containing the conveyor system is the headgate; the parallel set of entries at the other side of the
longwall panel is the tailgate. In developing the panel, there are three headgate entries and three
tailgate entries. Each panel of coal is approximately 22,000 feet long and 1,250 feet wide.

Hydraulic roof jacks support the roof in a canopy above the longwall and shield miners
operating machinery along the face from collapsing rock. As the face retreats, the operator
moves the roof support shields outby towards the mine’s entrance to allow the roof to collapse
into a compressed area known as the gob. Gases may build up in the gob area. To ventilate the
longwall, air flows through the headgate entries, then along the face, and exits the area through
the tailgate entries.

Although the Signal Peak mine does not have a high concentration of methane, it is prone
to spontaneous combustion, which is the “heating and slow combustion of coal . . . initiated by
the absorption of oxygen.” Stip. 4; Am. Geological Inst., Dictionary of Mining, Mineral and


Dual Entry Tailgate
__ Ventilation _
Legend
— tntake ae
| Return air
betta
| Regulator
Jil) Shetas
||) tnterpanet seal
stopping
Personne! door

! |
| to
 Pitared area
TD] tnaceessibie worked-out area
BF Crosscut number

—“Taigate

les .

Single Entry Tailgate
___ Ventilation |

Legend

— intake air |

|= return air

nen |

| R Reguiator !

Shields

Interpane! seat

stepping

Personne! door

Puared area

“aan g-==



Signal Peak claims that nitrogen injected closer to the face would be diluted by the air on
the face and immediately behind the longwall shields, and therefore would be ineffective in
inerting the gob. Tr. 36-37, 187. However, Beiter testified that only a portion of the nitrogen
would be diluted and carried away by the face airflow, and that, in his view, the operator would
have simply needed to inject a higher quantity of nitrogen closer to the face. Tr. 37-38.

Likewise, Signal Peak’s claim that the current plan allows for more oxygen to be
introduced into the gob on the headgate side conflicts with other evidence in the record. Beiter
rejected this claim in his report. Specifically, Beiter stated that “a curtain was typically installed
in the crosscut inby the longwall face where the headgate seal would later be constructed. That
curtain was described as ‘not tight.’” Sec. Ex. 10(a) at 6. In Beiter’s view, “[c]onstruction of a
more substantial control such as a permanent stopping or framed check curtain (temporary
stopping) instead of a curtain described as ‘not tight’ would reduce the quantity of intake air
leaking into the worked-out area.” Jd. This would prevent air from flowing through any opening
into the gob on the headgate side before the seal is constructed. Tr. 10. As stated, the Judge
permissibly credited Beiter’s testimony.

In summary, the record does not reflect that the District Manager failed to give adequate
consideration to the evidence relating to the hazard of spontaneous combustion.

3. Substantial Evidence Supports the Judge’s Finding that the Current Plan
Allows for Earlier Detection of Spontaneous Combustion.

Even if spontaneous combustion did present a problem here, the Judge recognized that
Riley determined that the dual-entry system enables better monitoring of conditions in the gob.
39 FMSHRC at 648. Indeed, Riley testified that an air monitoring sensor in the dual-entry
system “gives the true air concentrations and the gas that they detect from the back[-around]
return” and “give[s] earlier detection . . . from the gob at this sensor versus not having the back[-
around] return and having the sensor hung right here on the last shield only about two foot from
the working face and the gob gases would be out into the working area before they were detected
by the detection system.” RH Tr. 40-41.

Beiter testified that detecting spontaneous combustion early would be more difficult in a
single-entry system because of the increased dilution that would occur, which could mask the
existence of the carbon monoxide. Beiter further explained that, in the dual-entry system, “the
contaminants are elevated in that back return airflow. They’re less diluted . . . from a detection
standpoint, the less dilution you have, the more likely you are to find an indication of the
beginning of a heating, of a spontaneous combustion event as opposed to a more diluted
atmosphere,” providing earlier detection of spontaneous combustion. Tr. 18-22, 43; see also
Sec. Ex. 10(a) at 3. The Judge expressly credited Beiter’s testimony, finding that he had
“significant experience with spontaneous combustion.” 39 FMSHRC at 650.

Signal Peak argues that the dual-entry system does not provide a reliable method of early
detection of spontaneous combustion. The operator points to testimony by Vice President of
Engineering Farinelli stating that the monitoring advantage of the back-around system described
by Beiter is minimal because the atmospheric monitoring sensor in the back return only measures

13


achieves safety and health requirements for adequate ventilation and respirable dust control at
the specific mine.

The obligation that a plan must be appropriate for its purpose (suitable) is a consistent
and repeated theme in the Mine Act and underground coal mine regulations. Title III of the
Mine Act contains 14 specific requirements for “suitable” equipment or a “suitable” plan. The
regulations of underground coal mines at 30 C.F.R. Subchapter O, Part 75 contain more than 30
“suitability” requirements.

When an operator presents a ventilation plan to MSHA for approval, the only question
for MSHA is whether the plan provides adequate safety and health protections for the specific
mine. MSHA has promulgated extensive mandatory standards for ventilation. 30 C.F.R.

§§ 75.300-75.389. Those regulations establish mandatory standards that a ventilation plan must
meet in order to be suitable. Given the purpose and effect of those standards, a ventilation plan
that is adequate for operation of the mine in compliance with those regulations achieves the
conditions for maintaining adequate ventilation and respirable dust control in the specific mine.
Such a plan is therefore suitable.

This case turns upon the issue of substantial evidence — namely, whether substantial
evidence supports the Judge’s decision. Nonetheless, it is useful to review briefly the
development of burden of proof issues in plan approval cases so that we may place the
substantial evidence issue in the proper context.

Unquestionably, the Secretary bears the burden of proof in Commission suitability
proceedings. However, the Commission has taken shifting positions on the standard of proof.
Prior to 2012, the Commission consistently held that the Secretary bore the burden of
establishing by a preponderance of the evidence that the operator’s plan was unsuitable for the
mine in question. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996) (“Peabody
IT’); Peabody Coal Co., 15 FMSHRC 381, 388 (Mar. 1993) (“Peabody I’) (“[t]he Secretary
bears the burden of proving that the plan provision at issue was suitable to the mines in
question”); C.W. Mining Co., 18 FMSHRC 1740, 1748-53 (Oct. 1996).

3 Use of the term “minimum” by MSHA in conjunction with safety and health
requirements appropriately gives one pause. But the agency’s use of the term “minimum” most
certainly does not connote in any way an insufficient system. It means, as MSHA says, that the
ventilation plan must maintain adequate ventilation and respirable dust control in the mine. If
the plan maintains adequate ventilation and respirable dust control, it is suitable. MSHA
obviously and correctly recognizes that there may be many ways of accomplishing a goal. The
critical requirement is that the ventilation plan is appropriate and fit for providing a safe and
healthful atmospheric condition in the specific mine. In this matter, the agency has not analyzed
the operator’s plan from that standpoint, nor has it made a persuasive case that it fully considered
the relative health and safety benefits of the operator’s plan in a way that is not self-contradictory
or superficial.

16