Sarah Ghiz Korwan, Esq.
D.C. Circuit Unanimously Rules for Operator re: Ventilation Plan
In a decision issued on March 26, 2021, the D.C. Circuit Court of Appeals vacated a citation issued by MSHA to Knight Hawk Coal LLC (Knight Hawk), and reinstated their previously approved ventilation plan.
Knight Hawk began underground mining at Prairie Eagle Underground Mine (Prairie Eagle) in 2006 with an MSHA-approved ventilation plan. Twelve years later, MSHA conducted a ventilation survey at Prairie Eagle and concluded that the approved ventilation plan did not adequately ventilate the perimeter cuts.
In late 2018, after months of back-and-forth exchanges between MSHA and the operator, federal mine regulators revoked Knight Hawk’s ventilation plan and issued a technical citation for alleged deficiencies in its ventilation processes. Knight Hawk contested the citation and, following a hearing, an administrative law judge (ALJ) found that MSHA’s revocation was arbitrary and capricious, in part, because the chemical smoke test results were unreliable and inconsistent and the Secretary ignored disagreements among the ventilation survey team members regarding results. As noted, the ALJ vacated the citation and reinstated the previously approved ventilation plan.
On July 23, 2020, the Federal Mine Safety and Health Review Commission found that substantial evidence supported the ALJ’s decision and upheld ALJ’s decision to dismiss the citation. The Commission’s majority wrote that any decision not to approve a ventilation plan should show “plausible harm to miners from methane, dust, noxious gases, or some other ventilation-related hazard, which is to say, the denial is not based upon a reasonable fact-based concern for safety.”
As noted above, the D.C. Circuit upheld the Commission’s decision and ruled against MSHA, finding that it wrongly revoked the mine operator’s ventilation plan by relying in part on inconsistent and unreliable chemical smoke tests. The Court found that substantial evidence supported the ALJ’s determination that the Secretary’s revocation of the operator’s MSHA-approved ventilation plan was arbitrary and capricious.
As an initial matter, the Court’s review of the Commission’s decision was a “substantial-evidence” review, which is highly deferential to the agency fact-finder, requiring only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The Court even observed that the “reversal of an agency decision under the substantial evidence standard is rare.” Even with the cards stacked in MSHA’s favor, the Court found for the operator.
First, the Court acknowledged that the Secretary may treat ventilation plans for perimeter mining differently from other forms of retreat mining that involve roof collapse. However, a significant problem for the Secretary arose because MSHA improperly relied on inconsistent smoke test results without addressing the differences in the opinions and observations from its own investigation team, which the ALJ found to be the basis for its arbitrary and capricious revocation. Also problematic for MSHA was its exclusive reliance on the survey results, despite the fact that Knight Hawk’s ventilation plan was approved and had been in place for 12 years without serious incident. Given the positive history of the mine and its ventilation, MSHA lacked a “rational connection” between the discredited 2018 survey results and revocation of the ventilation plan.
In addition, there was corroborating evidence that the chemical smoke tests performed in the perimeter cuts were unreliable. Specifically, MSHA’s lead investigation engineer, Dennis Beiter admitted that the chemical smoke test results “were not always repeatable.” Moreover, “[t]he survey team made observations of smoke rising approximately 44-feet away in dimly lit perimeter cuts from areas that miners do not normally work or travel.” The Commission noted that it was not surprising that reliable observations in the dark and at that distance created conflicting opinions regarding the results. The Court also noted the ALJ’s finding that MSHA’s primary witness, Beiter, lacked credibility while the testimony of Knight Hawk’s witnesses was more reliable.
Moreover, the Court credited the ALJ’s findings that the air purity test results obtained during the ventilation survey did not provide the necessary rational connection between the facts found and the MSHA’s decision to revoke the ventilation plan. Specifically, the Secretary relied heavily on his conclusion that “the risk of methane accumulation made the ventilation plan unsuitable”, although levels of methane and oxygen were well within the allowable limits.
Finally, the Secretary sought a remand rather than reinstatement of the ventilation plan, in the event the Court affirmed the ALJ’s and Commission’s decisions regarding revocation. However, because the Secretary did not raise the remand issue before the Commission and offered no “extraordinary circumstances” for such failure, the Court found the failure to request a remand fatal and such request was denied.