ANDALEX RESOURCES, INC., Pеtitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION; Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health, Respondents.
No. 14-9540
United States Court of Appeals, Tenth Circuit
July 7, 2015
791 F.3d 1252
III. Conclusion
Owens has not met his burden of showing that one of
AFFIRMED.
Marco M. Rajkovich, Jr., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, KY, for Petitioner.
Lynne B. Dunbar, Attorney, U.S. Department of Labor, Office of the Solicitor (M. Patricia Smith, Solicitor of Labor; Heidi W. Strassler, Associate Solicitor; and W. Christian Schumann, Counsel, Appellate Litigation, with her on the brief), Arlington, VA, for Respondents.
Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.
Andalex Resources, Inc.1 petitions for review of the Mine Safety and Health Administration‘s (MSHA) decision to revoke previously granted modifications to the application of certain mine safety regulations. Andalex contends that MSHA lacked substantial evidence to revoke the modifications and that MSHA abused its discretion in how it applied the standard for revocation. We discern no error in the agency‘s decision. Exercising jurisdiction under
BACKGROUND
A. Underground mine safety regulations and Andalex‘s modifications
Underground coal mines present dangers to mine workers, nearby rеsidents, and the environment. To minimize that danger, Congress created MSHA and authorized the MSHA Secretary to promulgate rules mandating health and safety standards for mines and mine workers.
First, underground mines must have at least one sprinkler above certain pieces of equipment, including conveyor belts.
Second, MSHA generally prohibits the use of a belt air course as a return air course. That means mine operators cannot bring air into the mines using the same tunnels that take coal out of the mines on
Third, MSHA regulates the Atmоspheric Monitoring System for malfunctions, alerts, and alarm signals. When air quality decreases to an unacceptable level, the system operator must notify investigative personnel so they can identify which system sensor has alerted and why.
Fourth, MSHA regulates diesel-powered equipment used in the mines. Although MSHA initially deems some diesel equipment “non-permissible,” it still allows its use if mine operators use an approved engine with an air filter, include an approved fire extinguisher, and comply with specific fuel-system specifications, among other requirements.
Fifth, MSHA regulates the installation and use of electric equipment close to pillar workings or longwall faces areas in which miners extract coal. Mine operators must use, among other things, shielded high-voltage cables and conductors and cables of intrinsically safe circuits when they use electricity within 150 feet of a pillar or longwall face.
Finally, MSHA regulates other electronic equipment used in underground mines. This equipment includes junction boxes used for multiple power connections, handheld electric drills, and equipment that “is taken into or used inby the last open crosscut of any coal mine....” 2
B. Modification of safety standards
Congress has granted the MSHA Secretary authority to modify the аpplication of safety standards on a case-by-case basis. MSHA may modify the safety standards when the Secretary determines that a mine operator‘s proposed alternative safety standard will, at all times, guarantee no less than the same measure of protection than the regulations would otherwise require.
MSHA also has the authority to revoke those granted modifications. Any party to the initial petition for modification may request a revocation.
C. Andalex‘s mines and modifications
Andalex ran, among others, two underground coal mines in Utah-Pinnacle Mine and Aberdeen Mine. Between 1991 and 2006, Andalex sought, and MSHA approved, various modifications under the aforementioned regulations. First, in 1991, MSHA granted a modification to Andalex allowing it to place sprinklers in the two mines ten feet apart from one another instead of eight. See
D. MSHA‘s revocations and decisions
In 2008, Andalex ceased mining and sealed the Pinnacle and Aberdeen mines. Although it sealed the mines, Andalex left some infrastructure in place, presumably so it could one day reopen the mines. MSHA regulates the sealing of mines, requiring sealing whenever the mine operator deems the mine inactive or permanently closed or when the operator has abandoned a mine for more than 90 days.
After Andalex sealed the two mines, MSHA issued a proposed decision revoking the six modifications it had previously granted to Andalex. When Andalex sealed the two mines, MSHA dеclared the Pinnacle Mine “[non-producing]” and the Aberdeen Mine “[a]bandoned.” Pet‘r‘s App. at 53. MSHA considered Andalex‘s sealing of the two mines a change of circumstances, allowing revocation under
In evaluating MSHA‘s proposed decision to revoke, the ALJ cited and relied upon a 2008 MSHA handbook because he had no statute, regulation, or case to follow. The handbook included a list of possible reasons for MSHA administrators to consider revoking modifications, including: (1) the operator fails to implement the modification; (2) the findings and conditions that justified the modification have changed such that the modification is no longer warrantеd; and (3) the operator no longer uses or travels in the area of the mine to which the modification applies. Pet‘r‘s App. at 81. The ALJ also noted a statement in the handbook that “if a mine is permanently abandoned, the district [court] should ... recommend that modifications previously granted at the mines be revoked.”
The ALJ affirmed MSHA‘s decision to revoke the modifications.3 The ALJ first discussed the standard for revocation,
Andalex appealed the ALJ‘s decision to the MSHA Assistant Secrеtary. The Assistant Secretary affirmed the ALJ. Using
no way to verify that mining conditions that were present at one time at the mine will be present when the mine becomes active-particularly when the mine has been inactive for more than five years and when the operator has made representations indicating that new mining systems and technologies may be used when mining resumes....
Pet‘r‘s App. at 96-97.
The Assistant Secretary rejected Andalex‘s argument that the ALJ erred by revoking the modifications based on the possibility of changed circumstances. Instead, he concluded that Andalex‘s inability to maintain the equipment it left in the sealed mines was itself a change in cir-
DISCUSSION
A. Standard of Review
A “reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abusе of discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence....”
To satisfy the substantial evidence standard, an agency need only rely on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). The standard “requires more than a scintilla, but less than a preponderance.” Id. We “neither reweigh the evidence nor substitute our judgment for that of the agency.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (quoting Casias v. Sec‘y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
Ultimately, our review is “very deferential to the agency.” Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147, 1161 (10th Cir. 2014) (quoting Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng‘rs, 702 F.3d 1156, 1165 (10th Cir. 2012)). Further, “[a] presumption of validity attaches to the agency action and the burden of proof rests with the parties who challenge it.” Id. at 1162 (alteration in original) (quoting Hillsdale Envtl., 702 F.3d at 1165).
B. Did MSHA abuse its discretion or act arbitrarily and capriciously?
Andalex argues that the Assistant Secretary abused his discretion by ignoring, or аlternatively, by misapplying the standard for revocation stated in
MSHA can revoke a previously granted modification “upon a change in circumstances or beсause findings which originally supported the modification are no longer valid.”
Here, Andalex faces a problem: deference. Andalex did not mention this, perhaps for good reason. “We must be mindful that under the arbitrary and capricious standard, ‘our deference to the agency is greatest when reviewing technical matters within its area of expertise....‘” Colo. Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1215-16 (10th Cir. 2006) (quoting Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988)). To sustain an agency action as not being arbitrary and capricious, there must be a “reasoned basis” and facts in the record to support the agency‘s action. Olenhouse, 42 F.3d at 1575 (quoting Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)).
Regarding MSHA‘s application of the factors in its handbook, “we ordinarily defer to an agency‘s own interpretation of an ambiguous statute that it implements[.]” Via Christi Reg‘l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1272 (10th Cir. 2007) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)). But this deference is not absolute: we do not accord the highest Chevron deference to agency interpretations contained in agency handbooks. See Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 (2000). Nevertheless, we still afford MSHA‘s handbook “great deference.” Newton v. Fed. Aviation Admin., 457 F.3d 1133, 1137 (10th Cir. 2006) (stating that an agency handbook is entitled to “great deference insofar as it is interpreting the agency‘s own regulations“).
Affording “great deference” to MSHA‘s use of the handbook factors, we reject Andalex‘s argument that the agency‘s decision was arbitrary and capricious. In support of that argument, Andalex argues that the Assistant Secretary misapplied or ignored the
The plain language of “change in circumstances” supports MSHA‘s decision to revoke the modifications. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) (“[W]e must defer to the [agency‘s] interpretation unless an ‘alternative reading is compelled by the regulation‘s plain language....‘” (quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S. Ct. 1306, 99 L. Ed. 2d 515 (1988))). MSHA did not act arbitrarily and capriciously in concluding that ending underground mining warranted revocation of the modifications. See Change Definition, Oxford English Dictionary Online, http://www.oed.com/view/Entry/30467 (last visited May 18, 2015) (defining “change” as, among other things, “substitution of one thing for another,” “succession of one thing in place of another,” and “alteration in the state or quality of anything“); Circumstance Definition, Oxford English Dictionary Online, http://
Andalex also argues that it was arbitrаry and capricious for MSHA to revoke the modifications without first inspecting the mines and equipment. According to Andalex, the agency‘s failure to inspect anything led to the Assistant Secretary‘s revoking the modifications without making any findings and instead relying on “unproven assumptions.” Petitioner‘s Br. at 11 (emphasis in original). This argument lacks merit. The Assistant Secretary‘s findings came from Andalex‘s own admissions. The Assistant Secretary found that a change in circumstances supported the revocation-primarily, Andalex‘s sealing the mines and stopping active mining. The Assistant Secretary also found that Andalex‘s inability to maintain the equipment it left inside the sealed mines constituted a change in circumstances. These findings have a “rational connection” to the decision to revoke the modifications, all of which contemplated active mining. See Olenhouse, 42 F.3d at 1574 (quoting Motor Vehicle Mfrs., 463 U.S. at 43).
Similarly, Andalex asserts that the Assistant Secretary based his decision not on fact, but conjecture, and that his decision to affirm the revocations amounted to “administrative fiat.” Petitioner‘s Br. at 11. Specifically, Andalex contends that the Assistant Secretary arbitrarily and capriciously agreed with the ALJ‘s statement that “the extended period of inactivity and inaccessibility raises concerns as to the condition of equipment and infrastructure left in the mines.” Pet‘r‘s App. at 96. According to Andalex, the Assistant Secretary cannot just “raise concerns” and speculate on what “may be in place” in the future. Petitioner‘s Br. at 11.
Certainly, the Assistant Secretary raised a lot of concerns and speсulated more than once about what may happen if Andalex tries to resume mining in the underground mines. And, as Andalex tells us, the Assistant Secretary admitted that MSHA “should not grant a petition for modification when the mine is sealed and there is no way to verify that mining conditions that were present at one time at the mine will be present when the mine becomes active.” Pet‘r‘s App. at 96. But before that discussion, the Assistant Secretary reached a clear conclusion: “[t]he granted modifications all contemplatе active mining and modify standards ... that are critically important to miner safety.”4 Pet‘r‘s App. at 95.
Andalex urges us against allowing the agency to apply such broad pronouncements as changes in circumstances. We disagree. The sealing of the mines is a discrete and substantial event. MSHA‘s regulations say as much; for example, when a mine operator declares a coal mine
C. Did substantial evidence support MSHA‘s decision to revoke the modifications?
Andalex also contends that the Assistant Seсretary “points to no facts” that would permit the agency to prove a change in circumstances. Petitioner‘s Br. at 14 (emphasis in original). MSHA disagrees and argues that substantial evidence existed to support its decision. MSHA notes that Andalex stopped underground mining in the two mines, and each of the previously granted modifications contemplated active mining.
To determine if substantial evidence existed, we consider whether the agency‘s decision is based on “such relevant evidence as a rеasonable mind might accept as adequate to support a conclusion.” Foust v. Lujan, 942 F.2d 712, 714 (10th Cir. 1991) (quoting Consolo v. Fed. Maritime Comm‘n, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)). “This is some-thing more than a mere scintilla but some-thing less than the weight of the evidence.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)).
Substantial evidence supported MSHA‘s decision to revoke Andalex‘s modifications. Before the ALJ, Andalex admitted that it had sealed the mines in September 2008. Andalex took the further step of submitting updated mine maps to MSHA as regulations require when an operator permanently closes, abandons, or closes a mine for more than 90 days. See
Andalex suggests that this is insufficient to satisfy the substantial evidence standard; in its view, MSHA needed to show that the conditions relevant to the modifications at issue had changed. We disagree. Under
CONCLUSION
Andalex sealed two underground mines and has left them sealed fоr several years. Affording deference to the agency‘s actions, we hold that MSHA did not act arbitrarily and capriciously in revoking its previously granted modifications for those two mines. We also hold that MSHA supported its decision with substantial evidence. Therefore, we deny the petitions for review.