Plateau Mining v. Fed. Mine Safety and Health

• Decision Date: 17 March 2008
• Docket Number: No. 06-9582.,06-9582.
• Citation: 519 F.3d 1176
• Parties: PLATEAU MINING CORPORATION, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; The Secretary of Labor, Mine Safety & Health Administration, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

519 F.3d 1176

PLATEAU MINING CORPORATION, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; The Secretary of Labor, Mine Safety & Health Administration, Respondents.

No. 06-9582.

United States Court of Appeals, Tenth Circuit.

March 17, 2008.

Ralph Henry Moore II, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, (Karen L. Johnston, Jackson Kelly PLLC, Denver, CO, with him on the brief), for Petitioner.

Jerald S. Feingold, Attorney (Jonathan L. Snare, Acting Solicitor of Labor, Edward P. Clair, Associate Solicitor, W. Christian Schumann, Counsel, Appellate Litigation, Robin A. Rosenbluth, Attorney, with him on the brief), United States Department of Labor, Arlington, VA, for Respondents.

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

This appeal arises out of a citation issued to Plateau Mining Corporation after a fatal methane explosion at its Willow Creek Mine on July 31, 2000. The citation, issued by the Mine Safety and Health Administration (MSHA), alleged that the accident was the result of a deficient mineventilation system. An administrative law judge (ALJ) affirmed the citation, though not on the primary theory of liability advanced by MSHA. On review, the commissioners of the Federal Mine Safety and Health Review Commission (the Commission) split evenly, with the effect of allowing the citation to stand. Exercising jurisdiction under 30 U.S.C. § 816(a)(1), we reverse the decision of the ALJ because substantial evidence does not support a finding that Plateau was on notice that its ventilation system was performing inadequately.

I. INTRODUCTION

Plateau operated the Willow Creek Mine, an underground coal mine in Carbon County, Utah. The coal was extracted using a method known as longwall mining, which permits a mine operator to remove a seam of coal without leaving behind pillars of coal for support.

Before longwall mining begins, a set of tunnels — called entries — is constructed around a large, rectangular block of coal, called a panel. (See schematic drawing below.) The two entries running along one long side of the block of coal are known as the headgate entries. A conveyer belt is installed in one of these entries. The entries on the other long side are known as the tailgate entries. A machine called a shearer is placed at one end of the block of coal, known as the face. The shearer takes "passes" across the longwall face, severing approximately a 30-inch slice of coal from the seam with each pass. The severed coal falls onto a chain conveyer that runs along the face, which feeds the coal onto the conveyer belt on the headgate side for transport out of the mine. Temporary roof supports called shields advance behind the shearer as the panel of coal retreats. The shields support the roof above the miners and the equipment. Behind the shields, the roof is allowed to collapse. This mined area behind the shields is known as the "rubble zone." An "area where mining has been completed" is known as a "worked-out area." 30 C.F.R. § 75.301. The mined area and the entries immediately adjacent to it are referred to as the "gob."

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Some mines, such as Willow Creek, are considered "gassy" mines because their operation liberates a significant amount of methane. Methane is trapped within the pores of a coal bed and is released when the coal is broken up during mining. Gassy mines present a challenge because methane-air mixtures are explosive at concentrations of 5 to 15% methane. Mine operators use a ventilation system, called a "bleeder system," to dilute methane in worked-out areas. The methane is released from the coal at a concentration of 100%; the purpose of the bleeder system is to dilute the methane so that only small quantities are in the explosive range and concentrations are well below 5% near likely ignition sources, such as areas where miners are present and work is being done. At the longwall panel involved in this case (the D-3 panel), a fan blew fresh outside air into one of the headgate entries. The air was forced across the longwall face, which was 815 feet wide, and also through the rubble zone. Streams of fresh air — air from the headgate side that had not ventilated the gob and air from the tailgate side brought in to maintain appropriate ventilation pressure — joined the air coming off the rubble zone, diluting the methane further. From there the air entered tunnels on the tailgate side, known as bleeder entries, and eventually traveled out of the mine. After mining on the D-3 panel had progressed approximately 350 feet, the bleeder system would be supplemented with gob vent boreholes, which are holes from the earth's surface down to the ceiling of the gob. The holes had been drilled, and once the coal under them had been removed, they would ventilate methane directly upward to the surface of the mine at high concentrations. At the time of the accident, Plateau believed that it would reach the first gob vent borehole within a few days.

II. REGULATORY BACKGROUND

Section 101(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(a), directs the Secretary of Labor to establish mandatory health and safety standards for mines. Under this authority the Secretary has promulgated a set of regulations governing underground-coalmine ventilation. See 30 C.F.R. §§ 75.300-75.389. These regulations set forth various requirements for a ventilation system, including for the operation of mine fans; for air quality, quantity, and velocity; and for monitoring and evaluating the effectiveness of the system. Aside from following these generally applicable standards, each mine operator is also required to develop and follow a mine-specific ventilation plan, which must be approved by an MSHA district manager. See 30 C.F.R. § 75.370(a). After approval any major change to the plan must be approved by MSHA, see 30 C.F.R. 75.370(a)(2); Wyoming Fuel Co., 16 FMSHRC 1618, 1624 (Aug.1994).

The citation that Plateau challenges on appeal is for a violation of one of the generally applicable standards, 30 C.F.R. § 75.334(b)(1), whose relevant language states:

[A] bleeder system shall be used to control the air passing through the [worked-out] 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.

The Commission has interpreted this provision to mean that the bleeder system must function "effectively," see RAG Cumberland Res. LP, 26 FMSHRC 639, 647, aff'd sub nom. Cumberland Coal Res., LP v. FMSHRC, 171 Fed.Appx. 852 (D.C.Cir. 2005) (unpublished), although a mine operator can be sanctioned only if it knew or a reasonably prudent person would have known that the system was not functioning effectively. Cf. Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.1990) ("[T]he appropriate test is whether ... a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.")

III. FACTUAL BACKGROUND

A. The Ventilation Plan

Before beginning mining at the D-3 panel, Plateau obtained MSHA's approval for the panel's bleeder system, as required by 30 C.F.R. § 75.370. Because of difficult mining conditions at Willow Creek and a previous fire at the mine, MSHA had given the plan heightened attention, subjecting it to review not only at the district level but also at national headquarters. MSHA rejected an early ventilation plan submitted by Plateau, prompting two meetings to resolve issues in the plan. To obtain plan approval, Plateau agreed to use a more extensive monitoring system than what was in use at most mines. By regulation, a person certified by the state or by MSHA must take air-quality measurements at least once a week, see 30 C.F.R. § 75.364, but Plateau also had a sophisticated system of sensors that continuously and instantaneously reported on the conditions in the mine.

The MSHA-approved ventilation plan authorized Plateau's use of what is known as a "two-entry system." MSHA requires that a longwall mine use three entries along each side of the longwall panel, but when a mine faces roof-control challenges, a mine operator may petition MSHA for permission to use a two-entry system. To be granted the modification, a mine operator must show that the two-entry system is at least as safe as the three-entry system. See 30 C.F.R. § 44.4. Plateau petitioned for and was granted permission to use a two-entry system at Willow Creek.

B. Mining on the D-3 Panel

1. Methane Liberation and Concentrations

Mining on the D-3 panel, the third longwall panel to be mined at Willow Creek, commenced on July 17, 2000. As mining progressed, the levels of methane being liberated in the mine increased. Increased methane liberation is to be expected in the early stages of longwall mining, for two reasons. First, there is a "ramping-up period" in longwall mining: at the start of mining, the shearer takes fewer passes across the face each shift than it does once the full coal-production level is reached. Because methane is released as the coal at the face fractures, an increase in the number of passes increases the liberation of methane. Second, the gob, from which methane seeps, grows larger as mining progresses. On July 18 and 19, 2.5 million cubic feet of methane were carried by the bleeder system each day. By July 31, the day of the accident, the level had risen to over 7 million cubic feet, although that level was lower than the predicted level for that stage of mining and lower than the mine's estimated capacity. The predicted levels and estimated capacity had been submitted to MSHA during the ventilation-plan approval process.

With an increase in the amount of methane liberated, readings of the automated atmospheric monitoring systems (AMS) at certain...