Prairie State Generating Co. v. Sec'y of Labor

• Citation: 792 F.3d 82
• Decision Date: 26 June 2015
• Docket Number: No. 13–1315.,13–1315.
• Parties: PRAIRIE STATE GENERATING COMPANY LLC, Petitioner v. SECRETARY OF LABOR and Federal Mine Safety and Health Review Commission, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

792 F.3d 82

PRAIRIE STATE GENERATING COMPANY LLC, Petitioner

v.SECRETARY OF LABOR and Federal Mine Safety and Health Review Commission, Respondents.

No. 13–1315.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 23, 2014.

Decided June 26, 2015.

Rehearing En Banc Denied Sept. 2, 2015.

Ralph Henry Moore, II argued the cause for petitioner. With him on the briefs was Patrick W. Dennison.

Edward Waldman, Attorney, Mine Safety & Health Administration, argued the cause for respondents. With him on the brief was W. Christian Schumann, Counsel. John T. Sullivan, Attorney, Federal Mine Safety and Health Review Commission, entered an appearance.

Before: HENDERSON and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Coal powers almost 40% of the electricity used in the United States. Despite enormous safety advances in recent decades, underground coal mining remains one of the handful of the nation's most dangerous jobs. Cave-ins, and dusts or gases that pose respiratory or explosion risks, are leading causes of harm to coal miners.¹ Congress enacted the Federal Mine Safety and Health Amendments Act of 1977 (the Mine Act) to protect America's miners. The Mine Act subjects mine operators to substantial safety regulation, under rules generally applicable to all mines, as well as mine-specific safety plans suited to the particular geologic conditions and the operator's chosen mining system. Operators must propose mine-specific plans for the approval of the Secretary of Labor, who acts for those purposes through a district manager in the Mine Safety and Health Administration (MSHA). The Mine Act established the Federal Mine Safety and Health Review Commission, an independent agency, to review operators' challenges to citations and orders the Secretary imposes under the Act. Petitioner Prairie State Generating Company, LLC (Prairie State) challenges the Commission's decision to sustain the Secretary's citations against it for operating without approved, mine-specific plans for roof support and ventilation at Prairie State's underground coal mine at Lively Grove in southern Illinois. After extensive consultation over the terms of mine-specific safety plans that would be suitable at Lively Grove, the MSHA district manager had declined to accept the final terms that Prairie State proposed. In order to create an opportunity to challenge the district manager's plan-suitability decisions, Prairie State momentarily operated the mine without approved roof-support and ventilation plans and so incurred two citations, which it challenges here.

The principal question before us is which standard the Commission should use when it reviews the Secretary's citation of an operator for failure to follow an approved, mine-specific plan. The Secretary defends arbitrary-and-capricious review as appropriately deferential to his judgments because the Department of Labor is the agency charged under the Mine Act with expert policymaking discretion to evaluate and approve mine-specific safety plans. Prairie State, by contrast, argues for de novo review on the ground that the Secretary will not have carried his acknowledged burden to prove the basis for a citation unless he establishes, without the benefit of deference, the un suitability of an operator's proposed plan. Prairie State claims two further legal errors: First, that the Commission erred as a matter of law by not considering evidence that, Prairie State contends, is relevant notwithstanding that it was not submitted to the district manager when he decided plan suitability; and second, that the district manager erroneously relied on an MSHA Procedure Instruction Letter as a binding, across-the-board norm in derogation of his duty to make a case-specific judgment. Finally, Prairie State points out various ways in which, even if the suitability determinations were reviewed with deference, it believes the determinations were contrary to law and unsupported by substantial evidence.

We hold that that the Secretary's judgments regarding the suitability of mine-specific safety plans are entitled to deference under the Mine Act, and reject the further claims of error.

I.

The Mine Act charges two separate agencies with complementary policymaking and adjudicative functions.² The Secretary, acting through MSHA, sets regulatory standards of mine safety, conducts regular mine inspections, and issues citations and orders in response to violations. 29 U.S.C. § 557a ; 30 U.S.C. §§ 813, 814 ; Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202–04 & n. 5, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). The Commission, an adjudicatory body established as independent of the Secretary, reviews challenges to MSHA's actions. 30 U.S.C. §§ 815(d), 823. The Mine Act's split-function approach contrasts with the more typical administrative structure, in which rulemaking and adjudication are performed within a single agency. See generally Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 151, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (describing the analogous, split-function scheme under the Occupational Safety and Health Act (OSH Act)); 2 Charles H. Koch, Jr. & Richard Murphy, Administrative Law & Practice § 5:29 (3d ed.). The extra institutional separation the Mine Act provides reflects Congress's concern that the adjudicatory function be institutionally independent of potential influence by the agency responsible for policymaking and enforcement decisions. See S.Rep. No. 95–181, at 47 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3447 (“[A]n independent Commission is essential to provide administrative adjudication which preserves due process and instills much more confidence in the program.”).

The Mine Act requires the Secretary, acting through an MSHA district manager assigned to one of the nation's twelve mining districts, to negotiate mine-specific roof-support and ventilation plans with representatives of the companies that operate the mines. Congress decided that “individually tailored plans, with a nucleus of commonly accepted practices, are the best method of regulating such complex and potentially multifaceted problems as ventilation, roof control and the like.” Dole, 870 F.2d at 669 n. 10 (quoting S.Rep. No. 95–181 at 25, 1977 U.S.C.C.A.N. at 3425). As outlined below, the operators propose plans for the Secretary's consideration that they believe are “suitable” to ensure adequate roof support and ventilation based on each mine's unique geology and proposed mining system. 30 U.S.C. §§ 862(a), 863(o ) ; see Mach Mining, LLC v. Sec'y of Labor, 728 F.3d 643, 649 (7th Cir.2013). No mine may operate without an approved plan, and once the Secretary has approved a plan, its terms are enforceable as if they were duly promulgated regulations. 30 C.F.R. §§ 75.220(c), 75.370(d) ; see Dole, 870 F.2d at 667 & n. 7 ; Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C.Cir.1976) (interpreting the predecessor Coal Act).

The first step in the process of plan approval is for a mine operator to develop roof-support and ventilation plans it thinks are suitable, and to submit the plans to the district manager for his or her consideration. 30 C.F.R. §§ 75.220(a), 75.370(a) ; see 30 U.S.C. §§ 862(a), 863(o ) ; Dole, 870 F.2d at 668–69 & n. 10. The operator must also provide proposed plans to the mine workers' representative prior to submitting them to the district manager, so that the representative may make comments for the district manager's consideration. 30 C.F.R. § 75.370(a)(3), (b). The district manager evaluates the operator's proposed plans (and miners' comments) in accordance with the Secretary's policy judgment, and in light of information about the prospective site and the agency's accumulated knowledge and experience. See 30 U.S.C. §§ 862(a), 863(o ) ; 30 C.F.R. §§ 75.220(a), 75.370(a) ; S.Rep. No. 95–181 at 25, 1977 U.S.C.C.A.N. at 3425. If the district manager deems an operator's proposed plan insufficient to ensure miners' health and safety, he or she denies approval, explaining relevant concerns to the operator and giving the operator a chance to address the identified deficiencies. 30 C.F.R. §§ 75.220(b), 75.370(c). The operator and the district manager then engage in a good-faith negotiation in an effort to formulate a plan with which they both are satisfied. Id. §§ 75.220(a), 75.370(a), (c)(2) ; see Sec'y of Labor v. Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (1985). The operator “ha[s] a role to play in developing plan contents, [but] [the Secretary] always retain[s] final responsibility for deciding what ha[s] to be included in the plan.” Dole, 870 F.2d at 669 n. 10 ; see 30 U.S.C. §§ 862(a), 863(o ) (operators shall only adopt plans “approved by” the Secretary). In other words, “ ‘while the operator proposes a plan and is entitled ... 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.’ ” Dole, 870 F.2d at 669 n. 10 (quoting S.Rep. No. 95–181 at 25, 1977 U.S.C.C.A.N. at 3425). If a mine operates without an approved, mine-specific plan, the Secretary may issue citations, orders to withdraw from the mine, civil fines, and criminal penalties. 30 U.S.C. §§ 814(a), (d), 815, 820.

The independent Commission is the administrative adjudicator under the Mine Act. 30 U.S.C. §§ 815, 823. A mine operator may appeal a citation issued by the Secretary to an administrative law judge, who conducts a hearing on behalf of the Commission in accordance with the Administrative Procedure Act. Id. §§ 815(d), 823(d)(1). At the hearing, the Secretary must support its citation by a preponderance of evidence in the record. See 5 U.S.C. §§ 554(c)(2), 556(d) ; Steadman v. SEC, 450 U.S. 91, 102, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981) (interpreting “substantial evidence” under APA...