Cumberland Coal Resources, Lp v. F.M.S.H.R.C.

• Citation: 515 F.3d 247
• Decision Date: 15 February 2008
• Docket Number: No. 06-4192.,06-4192.
• Parties: CUMBERLAND COAL RESOURCES, LP, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration, (MSHA), Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

515 F.3d 247

CUMBERLAND COAL RESOURCES, LP, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration, (MSHA), Respondent.

No. 06-4192.

United States Court of Appeals, Third Circuit.

Argued November 8, 2007.

Filed February 15, 2008.

Karen L. Johnston, Jackson Kelly, Denver, CO, R. Henry Moore [Argued], Jackson Kelly, Pittsburgh, PA, for Petitioner.

John T. Sullivan, Federal Mine Safety & Health Review Commission, Washington, DC, Melissa Bowman [Argued], United States Department of Labor, Office of the Solicitor, Arlington, VA, for Respondent.

Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Cumberland Coal Resources, LP ("Cumberland") petitions for review of the August 29, 2006 decision of the Federal Mine Safety and Health Review Commission (the "Commission") affirming the decision of an Administrative Law Judge (the "ALP) that upheld three citations issued to Cumberland by inspectors of the Federal Mine Safety and Health Administration ("MSHA") on January 16, 2004, February 4, 2004, and February 7, 2004. Cumberland Coal Resources, LP v. Sec'y of Labor, Mine Safety & Health Admin., 27 F.M.S.H.R.C. 295, 2005 WL 857342 (2005) (ALJ) ("Cumberland I"), aff'd, 28 F.M.S.H.R.C. 545, 2006 WL 2587959 (2006) ("Cumberland II"). We will deny the petition, and in so doing affirm the Commission's decision.

I. BACKGROUND

A. Factual Background

1. Longwall Mining and Bleeder Ventilation

This case grows out of problems encountered while Cumberland was using a technique called "longwall mining" to extract coal from a mine in Greene County, Pennsylvania. Longwall mining involves the use of cutting machines to shear coal from one face of a large rectangular block, or panel, of coaL In preparing to engage in longwall mining, a number of tunnels, sometimes called "entries," are created in a coal seam, offsetting the block of coal to be mined. Some of these entries are "travelable," meaning that people may safely move through them to access the mine. Mining equipment is installed directly adjacent to one of the walls of the block of coal, which wall, though it is in this instance one of the two of shorter width, becomes known as the "longwall face" and is the surface from which the coal is severed.

In addition to the shearer that severs the coal from the longwall face, the mining equipment also includes conveyor belts to transport the coal. As the cutting head of the shearer moves back and forth across the longwall face, severed coal falls onto the first conveyor belt, which is positioned parallel to the face and transports the coal to a stage loader. The stage loader in turn feeds the coal onto another conveyor belt system for removal from the mine. The end of the longwall face towards which the first conveyor belt directs the severed coal for removal is called the "headgate," and entries on that side of the panel are "headgate entries." The opposite end is called the "tailgate," and the entries there are "tailgate entries."

Longwall mining requires the use of hydraulic roof supports, or shields. These shields support the roof over the area being mined, advancing with the longwall face as the coal is removed. As the shields are moved, the unsupported roof material falls behind them to create what is called the "gob." Though it has a nontechnical ring, the word "gob" is a term of art meaning "the space left by the extraction of a coal seam into which waste is packed or the immediate roof caves." (Respondent's Brief at 8 n. 6 (citing Am. Geological Inst., Dictionary of Mining, Mineral and Related Terms 239 (2d ed.1997)).) In short, the term is used to describe the area behind the shields where coal has been extracted and the roof has been permitted to cave in. The gob is also sometimes referred to as the "worked-out area" or the "mined-out area."

Because methane gas, which is noxious and potentially explosive, is released during mining, a "bleeder system" or "bleeder ventilation system" is used to ventilate worked-out areas. "Bleeder entries" are integral to the bleeder system, serving as special air courses, or pathways, designed to remove methane from areas where mining has resulted in the extraction of a substantial portion of the coal.¹ The bleeder system dilutes methane coming from the gob with fresh air coming through the bleeder entries. The entries may be connected to one another by "crosscuts," which are small passageways usually driven at right angles to the entries. Air containing higher levels of methane exits the gob and enters the bleeder entries through connector entries that may contain adjustable ventilation control devices. The points at which air from the gob goes into the bleeder entries can be used for measuring methane concentrations and hence are called "bleeder evaluation points," or "BEPs."

2. Cumberland Mine

Cumberland operates Cumberland Mine, a large underground coal mine in western Pennsylvania. The mine has the unfortunate distinction of being "gassy," which means that it typically liberates more than 1,000,000 cubic feet of methane in a twenty-four hour period and consequently requires spot inspection every five days by representatives of MSHA. 30 U.S.C. § 813(I). In a gassy longwall mine, methane is liberated from the longwall face that is being mined, as well as from within the gob. As previously noted, bleeder ventilation systems are intended to dilute and remove the liberated methane.²

This case involves ventilation problems associated with the forty-ninth longwall panel at Cumberland Mine, also known as the "No. 49 longwall panel" or "LW49." LW49 is 12,000 feet long by 1,250 feet wide and is the largest panel Cumberland has ever undertaken to mine. Cumberland I, 27 F.M.S.H.R.C. at 315.

Pursuant to 30 C.F.R. 75.370(a)(1), a mine operator must submit a ventilation plan to MSHA for approval before beginning to mine. Section 75.370(a)(1) provides, in pertinent part:

The operator shall develop and follow a ventilation plan approved by the district manager. The plan shall be designed to control methane and respirable dust and shall be suitable to the conditions and mining system at the mine....

The ventilation plan for LW49 was submitted to MSHA on November 7, 2003. The type of ventilation system proposed was a "wraparound" system that would circulate bleeder air by using fans already in place for other mining operations³ to create a pressure differential that would draw air towards and across the longwall face. Cumberland chose the wraparound system over a more conventional "bleeder fan" system, which would have drawn air to a bleeder fan and shaft that was to have been installed at the back of the area that would become the gob.⁴ Though Cumberland had originally planned to use a bleeder fan system at LW49 and had laid out the entries around the panel with that in mind, it abandoned those plans when it became clear that the bleeder fan could not be installed and operational by the time Cumberland wanted to begin mining.

No matter what system it had chosen, Cumberland knew it was obligated to comply with 30 C.F.R. 75.334(b)(1), which sets forth a mandatory safety standard every ventilation system must meet:

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.

MSHA approved Cumberland's wraparound ventilation plan on December 9, 2003, but only for the first 8,000 feet of the panel.⁵ Mining of LW49 began on December 28, 2003. From January 4 to 11, 2004, in what seems to have been an effort to deal with ventilation difficulties, Cumberland made three changes to the ventilation system without seeking prior approval from MSHA.⁶ On January 16, MSHA inspectors conducted a ventilation survey of LW49 and issued Citation No. 7083200, alleging a violation of section 75.334(b)(1). The January 16 citation stated:

The bleeder system for the active LW49 longwall section ... was determined to be ineffective in controlling the flow of air through the bleeder system to continuously dilute and move methane-air mixtures from the gob and away from the active workings .... Coal will not be mined with the longwall until ventilation changes are made to correct the bleeder system deficiencies and a plan submitted and approved by the District Manager showing the revised bleeder system.

(App. 90; 449-51.)

Several meetings then took place between Cumberland and MSHA personnel to discuss the ventilation changes necessary to cure the problem noted in the January 16 citation. MSHA required those changes because it "believed that the air flows measured in the ventilation surveys indicated that the BEPs on the tailgate did not provide accurate information on conditions in the # 2 entry.... [MSHA] insisted that additional monitoring points be established at crosscuts # 82 and # 85." Cumberland I, 27 F.M.S.H.R.C. at 302. After several meetings between MSHA and Cumberland, in response to MSHA's concerns, "Cumberland reluctantly submitted a proposed ventilation plan incorporating the changes required by MSHA." Id. at 303. The revised plan provided, in pertinent part, that "[c]ontinuous monitoring will take place in the [tailgate] at BEP30, BEP30A, BEP30B, 85xcut # 2 to # 1 entry.... The monitoring will be on a `roving' basis and the quality, quantity and airflow direction will be recorded ...." Id. at 303-04. The revised ventilation plan was submitted to and approved by MSHA on January 21, 2004.

In addition to discussing with Cumberland the appropriate response to the January 16 citation, MSHA continued its mandatory spot inspections at the mine. On February 4, 2004, it issued Citation No. 7067000, alleging another violation of section 75.334(b)(...