Sec'y of Labor v. Knight Hawk Coal, LLC

• Decision Date: 26 March 2021
• Docket Number: No. 20-1299,20-1299
• Parties: SECRETARY OF LABOR, Mine Safety and Health Administration, Petitioner v. KNIGHT HAWK COAL, LLC and Federal Mine Safety and Health Review Commission, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

991 F.3d 1297

SECRETARY OF LABOR, Mine Safety and Health Administration, Petitioner

v.KNIGHT HAWK COAL, LLC and Federal Mine Safety and Health Review Commission, Respondents

No. 20-1299

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2020

Decided March 26, 2021

Emily Toler Scott, Acting Counsel for Appellate Litigation, U.S. Department of Labor, argued the cause and filed the briefs for petitioner.

Ralph Henry Moore II argued the cause for respondent Knight Hawk Coal, LLC. With him on the brief was Patrick W. Dennison.

Before: Srinivasan, Chief Judge, Henderson, Circuit Judge, and Randolph, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

The Federal Mine Safety and Health Amendments Act of 1977 (Mine Act), 30 U.S.C. §§ 801 et seq. , requires the Secretary of the United States Department of Labor (Labor Secretary or Secretary), acting through the Mine Safety and Health Administration (MSHA), to negotiate mine-specific ventilation plans with representatives of the companies that operate the mines. From 2006 to 2018, Knight Hawk Coal, LLC (Knight Hawk) operated its Prairie Eagle Underground Mine (Prairie Eagle) in accordance with a ventilation plan approved by MSHA. The approved ventilation plan permitted Knight Hawk to conduct perimeter mining at Prairie Eagle with 40-foot perimeter cuts.¹ In January 2018, MSHA conducted a ventilation survey at Prairie Eagle and concluded that the approved ventilation plan did not adequately ventilate the perimeter cuts. MSHA relied primarily on the results of chemical smoke tests, which involved survey team members observing smoke movement from a 44-foot distance. From February to October 2018, MSHA and Knight Hawk exchanged letters about the alleged deficiencies in the ventilation plan. Then, in November 2018, MSHA revoked Knight Hawk's Prairie Eagle ventilation plan. After receiving a technical citation from MSHA for operating without an approved plan,² Knight Hawk sought review of MSHA's revocation decision from the Federal Mine Safety and Health Review Commission (Commission).

An Administrative Law Judge (ALJ) appointed by the Commission found that the revocation decision was arbitrary and capricious, in part because the chemical smoke test results were unreliable and inconsistent and the Secretary ignored disagreements among MSHA ventilation survey team members regarding the results. The ALJ vacated the technical citation and reinstated the previously approved ventilation plan. The Commission then affirmed the ALJ's decision, finding that substantial evidence supported the ALJ's conclusion that the Secretary failed to explain adequately why the existing ventilation plan was deficient. The Secretary now petitions us for review. We deny the petition because substantial evidence supports the ALJ's finding that the Secretary's revocation decision was indeed arbitrary and capricious.

I. BACKGROUND

A. Statutes and Regulations

The Congress enacted the Mine Act "to protect the health and safety of the Nation's coal or other miners." 30 U.S.C. § 801(g). "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." Prairie State Generating Co. v. Sec'y of Labor , 792 F.3d 82, 84 (D.C. Cir. 2015).

Two separate agencies enforce the Mine Act through "complementary policymaking and adjudicative functions." Id. at 85. The Labor Secretary, acting through MSHA, sets regulatory standards for mine safety, conducts regular mine inspections and issues citations and orders in response to violations. See 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 that is independent of the Secretary, reviews challenges to MSHA's actions. See 30 U.S.C. §§ 815(d), 823.

"The Mine Act requires the Secretary, acting through an MSHA district manager ... , to negotiate mine-specific roof-support and ventilation plans with representatives of the companies that operate the mines." Prairie State , 792 F.3d at 86. In this respect, the Congress determined 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." United Mine Workers of Am., Int'l Union v. Dole , 870 F.2d 662, 669 (D.C. Cir. 1989) (quoting S. Rep. No. 95–181, at 25 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3425).

A mine operator must propose a plan that it believes is "suitable" to ensure adequate ventilation as well as methane and dust control based on each mine's unique geology and proposed mining system. See 30 U.S.C. § 863(o ) ; see also 30 C.F.R. § 75.370(a)(1) ("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."). "[W]hile 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). Thus, the Secretary "retain[s] final responsibility for deciding what ha[s] to be included in the plan." Id. "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." Prairie State , 792 F.3d at 86. Moreover, "[t]he ventilation plan for each mine shall be reviewed every 6 months by an authorized representative of the Secretary to assure that it is suitable to current conditions in the mine." 30 C.F.R. § 75.370(g).

B. Facts

"Perimeter mining" is "a special variant of the room-and-pillar method" of mining. Sec'y of Labor v. Knight Hawk Coal, LLC (Knight Hawk II ), 42 FMSHRC 435, 436 (July 2020) (internal quotations omitted). Underground room-and-pillar mining proceeds in two phases: advance mining and retreat mining. Coal is first extracted with advance mining—digging parallel and perpendicular tunnels into the solid coal and leaving pillars of undisturbed coal behind for roof support.

Retreat mining begins after advance mining has been completed. In traditional room-and-pillar mining, entire pillars are removed during retreat mining and the roof eventually collapses. By contrast, perimeter mining involves making angled cuts into the interior pillars or into the perimeter of areas where advance mining has been completed. Thus, no interior pillars are completely removed in perimeter mining. Because the interior pillars are left to support the roof, "perimeter mining has less caving of the mined area than other forms of retreat mining." Id. at 437.

Three mines under MSHA Coal District 8's jurisdiction³ either currently operate, or previously operated, with perimeter mining: Gateway North, Viper and Knight Hawk's Prairie Eagle. As noted, the Mine Act requires every underground coal mine operator to adopt a ventilation plan "suitable to the conditions and the mining system of the coal mine and approved by the Secretary." 30 U.S.C. § 863(o ) ; see 30 C.F.R. §§ 75.370 – .371. Prairie Eagle received conditional approval from MSHA to begin perimeter mining in 2006. MSHA District 8 granted unconditional approval four years later in 2010 and again granted unconditional approval in 2015. The approved ventilation plan allowed Knight Hawk to conduct perimeter mining at Prairie Eagle with deep perimeter cuts, up to a depth of 40 feet.

In 2017, the Gateway North mine submitted a plan to MSHA to conduct perimeter mining with 40-foot cuts, as opposed to the 20-foot perimeter cuts that had previously been approved at that mine. Before approving the plan, MSHA District 8 Manager Ronald Burns ordered a ventilation survey to determine whether the deep cuts could be adequately ventilated. Burns concluded that "the results [of the Gateway North survey] raised concerns regarding 40-foot cut perimeter mining, so he decided to conduct [ventilation] surveys at Viper Mine and [Prairie Eagle], as well." Knight Hawk II , 42 FMSHRC at 439.

On January 9–10, 2018, MSHA conducted a ventilation survey of Prairie Eagle. Dennis Beiter, an MSHA mining engineer with the ventilation division, headed the investigation team. The team included MSHA Ventilation Specialists and other MSHA personnel. The survey was conducted using "standard investigation procedures and standard procedures for collecting ventilation related data." Joint Appendix (J.A.) 36 (Dennis Beiter Administrative Hearing Testimony). Specifically, the team "used chemical smoke tests to determine airflow velocity and direction at various locations within the entries, crosscuts, and perimeter cuts of a block and measured air quality with handheld devices and bottle samples." Knight Hawk II , 42 FMSHRC at 439. For the perimeter cuts,

[t]he team ... conducted [chemical] smoke tests at the ends of the 40-foot perimeter cuts using a probe with a 44-foot extension fitted with two cap lamps attached to the end of the probe. The smoke was released from a tube at the end of the [44-foot] extension. Team observers, 44 feet away, would attempt to see the movement of the smoke—whether the smoke moved left or right, indicating airflow, or whether it rose to the roof and dissipated, indicating no airflow.

Id. (citations omitted). MSHA's team did not use tracer gas tests⁴ in its survey even though Beiter admitted that tracer gas could have been used to provide similar airflow information.

On January 29, 2018, MSHA conveyed to Knight Hawk the preliminary results of the ventilation survey. "The survey showed...