Plateau Mining Corp. v. Federal Mine Safety & Health Review CommissionPlateau Mining Corp. v. Federal Mine Safety & Health Review Commission
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 mine-ventilation 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
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.”
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-8 panel), a fan blew fresh outside air into one of the headgate entries. The air was forced across the long-wall 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
II. REGULATORY BACKGROUND
Section 101(a) of the Federal Mine Safety and Health Act of 1977,
The citation that Plateau challenges on appeal is for a violation of one of the generally applicable standards,
[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,
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
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 opera
B. Mining on the D-3 Panel
1. Methane Liberation and Concentrations
Mining on the D-3 panel, the third long-wall 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 measuring point locations (MPLs) showed rising methane concentrations. On July 19, two days after mining began, readings at MPLs 7 and 8, located where air exiting the gob entered the bleeder entries, ranged between 0.5% and 1.25%. Then, as Plateau increased its production level around the 29th of July, methane concentrations rose sharply. On July 31 they averaged between 2.5 and 3.0%; the highest point reached was a concentration of approximately 3.5% at MPL 8 early in the morning of July 31, approximately 20 hours before the accident. Such rising concentrations are expected in the beginning stages of longwall mining, although the rise is not linear, because sudden releases of methane cause spikes in the level, which drop as the methane clears.
Plateau had a protocol that dictated its response when methane concentrations at the measuring point locations reached specified levels. The “action level” established by Plateau for MPLs 7 and 8 was 4.0%. At that level Plateau would cease production until methane levels dropped to 3.7%. If an MSHA inspector notes a level of approximately 4.5% at one of those locations, the inspector issues an “imminent danger” order, requiring the evacuation of most mine personnel until the hazard is corrected. Plateau had set the action level lower than MSHA’s unofficial threshold so that it could stop production before dangerous levels were reached. The staff at Willow Creek had noticed a rise in methane levels at MPLs 7 and 8 but did not believe that the levels warranted a response because (1) the rise was expected, (2) the levels had not reached the action level, (3) the staff had the option of ceasing production if methane became excessive, and (4) the ventilation system at the time was exceeding the air-quantity requirements of the plan. In addition, the mine was experiencing fewer methane stoppages on the D-3 panel than it had on the previous longwall panel.
Among other locations at which Plateau took methane-concentration readings was the MPL B1 point, which was also known as the § 75.323(e) measuring point. That section specifies that the measuring point
Under Plateau’s protocol, production would cease if methane levels at MPL B1 exceeded 1.95% and would resume only when methane levels had dropped to 1.75%. At 2.5%, Plateau would evacuate the mine and notify MSHA. In the early morning of July 31 — approximately 20 hours before the accident — methane levels twice exceeded 1.95%; on one of those occasions, the level rose slightly above 2.0%. These exceedances of the action level occurred when production was idle, likely because it took some time for the air to travel the distance from the gob to MPL Bl. Plateau waited for the levels to drop before resuming production. MSHA did not issue Plateau a citation for the exceedance at the
An MSHA ventilation expert testified at the hearing before the ALJ that the readings at the
2. Airflow
As mining progressed on the D-3 panel, airflow in the ventilation system decreased. This was to be expected as the roof of the gob caved in, increasing resistance to airflow within the gob. Plateau’s ability to bring more air into the mine was limited because the mine fan was running at or near its maximum speed and the sliding doors of the ventilation control devices (called regulators) were open as far as possible. Plateau’s former general mine manager testified at the hearing that there were changes that Plateau could have made to bring in more air, but that those changes had not been thought necessary because air quantities at the face were still substantially higher than required in the ventilation plan.
3. The Accident
By July 31 the longwall panel had retreated a short distance, approximately 250 feet out of a projected 4200 feet. Plateau and the Secretary dispute the precise chain of events involved in the accident, but the cause of the accident is not an issue on appeal. According to the Secretary, on the night of July 31 a section of the roof collapsed in the gob, igniting a small pocket of methane. The Secretary believes that the flame from the initial ignition then came into contact with a small accumulation of methane in the explosive range. This explosion disrupted the ventilation system, which allowed more methane to accumulate, causing two subsequent explosions that resulted in the deaths of two miners and injuries to eight others.
Both sides agree that neither the presence of some methane in the gob nor an explosion of methane in the gob is conclu
After the accident the mine was sealed. MSHA conducted an investigation, which led to the issuance of the citation that Plateau challenges on appeal.
4. The Citation
The citation alleges that Plateau violated
During pillar recovery of the D-3 long-wall panel, the bleeder system being used did not control and distribute air passing through the worked-out area in a manner which continuously diluted and moved 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.
Plateau Mining Corp., 25 FMSHRC 738, 743 (Dec.2003) (emphasis added). The next paragraph provides a bit more detail but is still rather vague:
The following factors impaired the bleeder system’s effectiveness at controlling and diluting the air passing through the worked-out area: a limited mine ventilating potential; the configuration and distribution of airflow in the bleeder system and worked-out area; and temporary controls installed within the worked-out area which restricted airflow through the pillared area. As production increased and pillared area expanded, methane liberation increased and airflow paths changed within the worked-out area. These changing conditions resulted in reduced airflow and elevated methane concentrations within the worked-out area at locations containing potential ignition sources and within close proximity to the active longwall face.
Id. The citation further alleges that the accident occurred upon ignition of an explosive mixture that had accumulated in the worked-out area.
IY. THE HEARING BEFORE THE ALJ
At the hearing before the ALJ, MSHA’s primary theory was that Plateau’s bleeder system had failed to distribute air properly throughout the gob, allowing explosive pockets of methane to accumulate. During opening argument, counsel for the Secretary informed the ALJ that the focus of the Secretary’s case would be the alleged distribution failure. “[T]he difficulty with the design of the Willow Creek ventilation system,” asserted counsel, was that “it made it difficult, but not impossible, for [Plateau] to adequately monitor the airflow distribution in the headgate side of the gob.” R. Vol. 2 at 12. One MSHA witness testified that to control the air, as required by
Although MSHA’s witnesses repeatedly asserted that faulty airflow distribution was the major flaw of the ventilation system, the Secretary also advanced the theory, not mentioned by the Secretary’s counsel in her opening statement, that the mine had “limited ... ventilating potential.” Id. at 60. We have found no use of the term “mine ventilating potential” in any administrative or judicial opinion, nor in U.S. Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms (2d ed.1996), a standard mining dictionary, but apparently it is a measure of the ability to bring sufficient air into the mine to dilute the liberated methane. Thus, as we understand the record, the Secretary argued that Plateau’s ventilation system was overwhelmed by the amount of methane being liberated.
In support of this theory, MSHA’s witnesses testified that because the mine fan was running at capacity and the regulator doors were open as far as possible, Plateau could not bring more air into the mine or increase the air pressure. An MSHA supervisory special investigator, Gary Wirth, also cited Plateau’s use of the two-entry system approved by MSHA as a factor creating the limited mine ventilating potential. He further testified that the measurements of reduced airflow should have indicated to Plateau that additional evaluation of the ventilation system was necessary. He did not explain, however, why the decrease in flow should have put Plateau on notice of a problem, given that reduced airflow was expected. Moreover, the chief of MSHA’s ventilation division, John Urosek, testified later that airflow in the mine was sufficient.
The most important testimony on the issue of mine ventilating potential came from Mr. Urosek. Although his testimony appears somewhat inconsistent, he repeatedly stated that the volume of airflow in the mine was adequate and, more importantly, he never explained why a reasonable mine operator would have known before the explosions that the volume was inadequate. Initially, Mr. Urosek testified that when the 2% limit at the
On the issue of fresh-air leakage, Mr. Urosek explained that the methane in the air was diluted as it passed through the bleeders running from MPLs 7 and 8 to MPL Bl. After the air entered the bleeders just after MPLs 7 and 8, it likely had methane concentrations of 2.3 to 2.6%. Mr. Urosek asserted that the purpose of
When asked by counsel for the Secretary how MSHA had determined that the Willow Creek mine was in violation of
Later, when asked again by counsel for the Secretary what had convinced MSHA that there was a
Q: It is my understanding you are saying on 7-31 we mainly had a problem with distribution; is that correct?
A: Yes.
Q: If they had continued mining past 7-31, would we also expect problems with quantity, as welP.
A: It is difficult to say. We expected that the system itself, as it mined more gob, that the air flow path would become more resistant. Our concern early on in working with district in the plan was at what point would they still get enough air to ventilate the face, ventilate the longwall, and make sure the system is effective to move the methane.
That is the reason early on we decided once the longwall was squared up, we would do a ventilation survey to see how well the system was working. If we found problems, then to work with the operator to do whatever improvements, and enforcement actions would be up to the district, depending on what we found.
Q: Your problem on 7-31 was mostly with distribution?
A: Yes.
Id. at 644-45 (emphasis added). Mr. Wirth, MSHA’s accident investigator, had previously made a similar statement: “Due to the configuration of the system and the distribution as it was occurring, it likely was more of a distribution problem than it was a quantity problem.” Id. Vol. 2 at 61.
On cross examination Mr. Urosek stated that the ventilation system had not been designed to handle the amount of methane encountered. He did not explain this assessment, however, which appears inconsistent with the evidence in the record that
At the end of the hearing, MSHA called Mr. Urosek as a rebuttal witness. On direct examination by the Secretary, he reiterated that the pressure differential at Willow Creek was sufficient. Airflow at the mine, he said, was also sufficient. He then stated that the
During this testimony Mr. Urosek again asserted his belief that
V. THE AGENCY PROCEEDINGS
A. Decision of the ALJ
The ALJ rejected the Secretary’s principal theory — namely, that there was a problem with the distribution of airflow in the mine. He decided that the Secretary had failed to prove a distribution problem,
The ALJ found that “[t]he key element in diluting and moving methane-air mixtures from the gob is to ensure that there is a sufficient quantity of air sweeping the gob.” Id. at 747. He said that even though methane liberation had increased “quite signifieant[ly],” id., the quantity of air sweeping the gob had decreased, id. at 747-48, the mine fan was running “at or near full capacity,” id. at 747, and the regulator doors were wide open, id., Plateau did not make any changes to its system, id. at 747, 748. (He failed to state, however, what changes could have been made.)
The ALJ further found that the methane-concentration readings at MPL Bl would have revealed a deficiency in the bleeder system had it not been for leakage of fresh air into the bleeder entries lowering the readings.
Id.
at 748. Two MPL Bl readings at the action level, he said, meant that the system had been “max’ed out.”
Id.
at 748 (internal quotation marks omitted). Plateau had “failed to recognize the effect of the leakage when it established its action level for MPL Bl.”
Id.
at 749. Although the ALJ acknowledged that
In addition, the ALJ stated that “the increasing difference” between the methane concentrations at MPLs 7 and 8 and those at MPL Bl indicated that airflow from the gob “was becoming a smaller percentage of the total airflow at MPL Bl.” Id. at 750. “Quite simply,” he concluded, “methane was accumulating in the gob more rapidly than the ventilation system was able to dilute and move it into the bleeders.” Id.
Finally, the ALJ found that the Secretary had established that an explosion of accumulated methane had triggered the subsequent explosions during the accident. This evidence, he found, helped to establish a violation of
The ALJ addressed the question of notice as follows:
A mine operator may violatesection 75.334(b)(1) even though it is fully complying with the approved ventilation plan. First, the mine operator has better knowledge of the conditions that will be encountered when mining commences. More importantly, because an underground coal mine is a dynamic environment, a mine operator must be constantly vigilant when monitoring the conditions underground and it must make changes to its ventilation system as conditions warrant. I agree with the Secretary that Plateau should have been on notice that its bleeder system was not functioning properly on July 31, 2000.
Id.
at 746. The ALJ did not again explicitly address the issue of notice, although in the summary of his findings and conclusions he stated that “the evidence presented was not based on speculative post-ignition investigative assumptions, theories, and conclusions.”
Id.
at 756 (internal quotation marks omitted). “In order to comply with the standard,” he continued, “Plateau should have reacted to the increased methane levels and [the] reduced ventilation through the gob by making changes to its ventilation system before the first gob vent borehole was reached.”
Id.
at 757. He did not state what changes should have been made, but he asserted that Plateau
B. Decision of the Commission
The ALJ’s decision was appealed to the Commission. The Commission summarized Plateau’s arguments before it as follows:
Plateau argues that its bleeder system complied with the requirements ofsection 75.334(b)(1) and that the judge erred in finding a violation. It maintains that the judge erred in interpreting the standard to prohibit methane accumulations in a gob, and that the judge’s conclusion that its ventilation system was overextended is not supported by substantial evidence. Plateau asserts that the judge also erred by relying upon a misinterpretation ofsection 75.323(e) and in concluding that a violation ofsection 75.334(b)(1) could exist even if the operator complied with its ventilation plan. Finally, Plateau submits thatsection 75.334(b)(1) does not provide criteria for determining the effectiveness of a bleeder system, and that the judge’s finding that Plateau knew or should have known that its system was not functioning effectively was not supported by substantial evidence.
Plateau Mining Corp.,
Four commissioners heard the appeal. They split evenly on whether substantial evidence supported the ALJ’s finding of a
[S]uch broad statements must afford reasonable notice of what is required or proscribed. When faced with a challenge that a safety standard fails to provide adequate notice of prohibited or required conduct, the Commission has applied an objective standard, the “reasonably prudent person test.” The appropriate test is not whether the operator had explicit prior notice of a specific prohibition or requirement, but 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. The Commission has recognized that various factors that bear upon what a reasonably prudent person would do include accepted safety standards in the field, considerations unique to the mining industry, and the circumstances at the operator’s mine.
Id. (citations, footnotes, and internal quotation marks omitted)
All the commissioners also agreed that compliance with the mine-specific ventilation plan does not preclude a violation of
Ventilation regulations and ventilation plan provisions were designed to recognize that mine ventilation is a dynamic process. The provisions of 75.334 set forth a level of safety required at all mines, while ventilation plan provisions specify precautions and practices applicable to the particular conditions at a mine---- [A]n operator is required to comply with ventilation plan provisions, which encompass conditions specific to a mine, in addition to the more general requirements ofsection 75.334 , which establish a general baseline which all mines must meet. Conditions in a mine may change unexpectedly so that compliance with specific ventilation plan provisions may not necessarily assure that the general protections imposed by ventilation regulations are being met. Thus, an operator is required to address its bleeder system if the bleeder system is not effectively controlling air through the worked-out area as required bysection 75.334 , even if the operator is complying with the terms of its ventilation plan.
Id. at 511.
Two commissioners, Duffy and Suboleski, voted to vacate the ALJ’s decision and remand the case. In their view the ALJ had tried to rescue the Secretary from her unsupported theory of liability by concocting another theory contradicted by the Secretary’s own witnesses. The overview section of their opinion states:
This is a case in which MSHA had little evidence that the ventilation system was malfunctioning, yet the mine experienced an explosion and fire. Pri- or to the first explosion, air volumes were above design levels and all measuring points were within expected ranges. The explosion itself was caused by a very small amount of methane (50 cubic feet), a volume that would not be unexpected at the fringe of the rubble zone. However, MSHA found what it believed to be the causes of a distribution problem, near the headgate at the inby corner of the gob, where the explosion was believed to have originated. This problem, which was allegedly caused by a combination of a largely intact under-cast, an un-removed check curtain, and a series of check curtains in the set up rooms, combined to restrict air flow in this corner, and resulted in a violation ofsection 75.334(b)(1) . However, trial testimony showed that these obstructions were not present and MSHA’s primary case fell apart.
In the course of presenting that case, MSHA witnesses pointed out that the mine fan was at capacity; that, as production increased from start-up at the longwall, methane levels were rising; that the tailgate-side bleeder regulators were open as wide as possible to maximize air flow across the face and gob; that it took a great deal of air to dilute the methane level from the face and gob to the 2% concentration limit specified at the point where the bleeder air enters another air stream; and that once, two shifts before the explosion, the system’s ability to dilute to the 2% level, i.e., the bleeder-system capacity, had briefly been reached. Finally, MSHA testified that Plateau’s only recourse when it reached system capacity was to temporarily halt production.
The judge, rather than dismissing the case, used these circumstantial facts to construct an entirely new theory of the case since MSHA had failed to prove that the ventilation system had significant distribution problems. Moreover, he added a crucial element that directly contradicted the testimony of the MSHAwitnesses — that the volume of air in the gob was inadequate.
Id. at 523.
The dissenters took issue with the ALJ’s reliance on the evidence regarding the mine fan and the regulator doors. They argued as follows: That the fan was operating at full capacity did not mean that the full capacity was insufficient. Likewise, evidence of a decrease in the air volume sweeping the gob did not establish that there was insufficient air, because “[d]eereased flow is not the same as insufficient flow.” Id. at 527. Moreover, the ALJ’s finding of insufficient air was contrary to uncontradicted testimony from two of the Secretary’s witnesses, Mr. Urosek and Mr. Wirth. Also, the ALJ’s conclusion that gob airflow was becoming a smaller percentage of total airflow was based on a mathematical error. In light of these mistakes, the ALJ’s finding that methane was accumulating too rapidly in the gob was unwarranted.
In addition, the dissenting commissioners rejected the ALJ’s criticism of Plateau for its response to the elevated readings at MPL Bl. They did not believe that the evidence showed that Plateau should have taken any additional action. Plateau had reacted as its protocol required, by temporarily ceasing production. It could not have made other changes to its ventilation system because major changes to an MSHA-approved ventilation plan require approval. According to the dissenters, Plateau could not have investigated the cause of the exceedance at MPL Bl because the methane levels there dropped when production ceased. They thus “fail[ed] to see what Plateau would have investigated.” Id. at 528-29 n. 9.
The dissenting commissioners further contended that the evidence was insufficient to support a finding that Plateau had notice that its system was in violation of
Commissioner Young, joined by Commissioner Jordan, said that substantial evidence supported the ALJ’s conclusions. Like the ALJ, Commissioner Young found it significant that the mine fan was running at capacity and the regulator doors were wide open. He agreed with the ALJ that the leakage of fresh air into the bleeder entries meant that the readings at the
Commissioner Young also agreed with the ALJ that a reasonably prudent mine operator would have known that the mine was operating at its maximum ventilation capacity and would have recognized a disruption in the system’s effectiveness because of the elevated § 75.3232(e) readings. In support of this conclusion, he pointed to the testimony of two of Plateau’s witnesses, mine manager Kerry Hales and mining engineer Steven Jones. Commissioner Young described their testimony:
Jones and Hale[s] testified that they were aware of an increasing trend in methane in late July. Hales acknowledged that methane readings “were a little high” and that they had been “struggling with it for a few days, trying to reach the next gob vent borehole,” and that reaching the borehole would have alleviated the “methane problem.” Hales testified that the increasing trend in methane was of particular concern because the fan was at full capacity. Hales and Jones testified that the operator’s only option was to slow down or cease production to let the methane bleed off. Nonetheless, even with this information, the operator increased production and did not take the corrective action required.
Id. at 517-18 (citations omitted). Considering this evidence, Commissioner Young concluded, Plateau’s notice argument must be rejected.
VI. ANALYSIS
Because the Commission split two-to-two on the issue, there is no opinion of the Commission on the existence of a
A. Effectiveness Requirement of
Plateau argues on appeal, as it did before the ALJ and the Commission, that
The Commission below further explained that a mine operator can be out of compliance with
An agency’s interpretation of its own regulation is ordinarily controlling unless “plainly erroneous or inconsistent with the regulation.”
See Auer v. Robbins,
To determine whether the
Gonzales
exception applies here, we examine the history of
shall be ventilated by bleeder entries or by bleeder systems or equivalent means, or be sealed.... When ventilation of such areas is required, such ventilation shall be maintained so as continuously to dilute, render harmless, and carry away methane and other explosive gases within such areas and to protect the active workings of the mine from the hazards of such methane and other explosive gases.
During pillar recovery a bleeder system shall be used to control the air passing through the 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.
Although the wording of the statute and the regulation that has superseded it are quite close, the differences, which are central to the issue before us, suggest the “expertise and experience” of the agency, making
Auer
deference appropriate. Indeed the commentary accompanying the promulgation of the 1992 regulations,
see
57 Fed.Reg. 17890$ clearly evidence the application of experience and expertise. The omission from the regulation of the “render harmless” language appears to be in recognition of the impossibility of rendering methane-air mixtures completely harmless. The regulation therefore tempers the rigid and impractical statutory language. At the same time, however, the interpretation of the regulation by both the Secretary and the Commission clarifies that the regulation does not totally negate the command of the original statute — in fact, no new mandatory safety standard may reduce the protection afforded miners by an existing standard,
see
In short, the concern underlying the
Gonzales
exception to
Auer
deference does not apply here. Turning, then, to whether the interpretation by the Secretary and Commission satisfies
Auer,
we do not hesitate in concluding that it does. It is neither “plainly erroneous [n]or inconsistent with the regulation.”
Auer,
B. Evidence of
The ALJ’s factual findings regarding the occurrence of a
Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the decisionmaker. Substantial evidence requires more than a scintilla but less than a preponderance. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence. Thus, we may not displace the agency’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.
Zoltanski v. FAA,
To establish a violation of
To establish notice, the Secretary must prove that a reasonable operator would have known that the bleeder system was not functioning effectively and that additional actions were necessary for safety. The ALJ did not discuss the issue of notice, making only the conclusory statement: “I agree with the Secretary that Plateau should have been on notice that its bleeder system was not functioning properly on July 31, 2000.”
First, the ALJ found that because the mine fan was running at full speed and the regulator doors were wide open, the ventilation system was apparently stretched beyond its capacity. But these facts do not support the conclusion that Plateau should have been on notice of an inadequate ventilation system. As the dissenting commissioners put it, “because the fan could not do more does not indicate it was not doing enough.”
Relatedly, the ALJ emphasized the importance of ensuring that enough air sweeps the gob. He found that the amount of air sweeping the gob “actually decreased” as methane levels increased.
Also on the subject of airflow, the ALJ found that the increasing difference between the methane concentrations at MPLs 7 and 8 and those at MPL Bl indicated that airflow from the gob was becoming a smaller percentage of the airflow at MPL Bl. According to his analysis, this revealed that methane was accumulating in the gob faster than the system could remove it.
In addition, the ALJ found the increase in the amount of methane liberated at the face and in the gob to be significant — and problematic. This increase in methane liberation was to be expected, however; in fact, the levels of liberated methane were lower than the predictions Plateau had submitted to MSHA for that stage of mining. Also, concentrations of methane at MPLs 7 and 8 were well below Plateau’s action levels, and MSHA never asserted that the concentrations at those locations were too high. Indeed, the concentrations of methane had not even reached as high as the post-action safety level — the level at which production could resume after production had halted because an action level had been reached. Without more, the rising methane levels did not constitute notice to Plateau of an ineffective bleeder system.
The ALJ found that the methane readings at MPL Bl in particular indicated a problem with the system. But when the methane levels at MPL Bl exceeded Plateau’s action level — as happened twice, approximately 20 hours before the accident— Plateau acted in conformity with its protocol by waiting for the methane concentrations to return to acceptable levels before restarting production. The protocol already accounted for the occasional exceedance of the action level — the very point of establishing an action level is to trigger a response before higher levels are reached — and nothing happened that called into question the adequacy of that response. Moreover, as MSHA’s own ventilation expert testified, one or two exceedances of the 2.0% regulatory limit itself— and Plateau had only one — do not necessarily mean that changes to the system are required. Unavoidable sudden releases of methane may cause spikes in the methane concentrations, and although these should not trigger regular exceedances, an isolated occurrence does not prove that the system is ineffective.
Further, the ALJ relied upon the evidence of leakage of fresh air into the bleeder system between MPLs 7 and 8 and MPL Bl to conclude that the readings at MPL Bl should have indicated a problem to Plateau. According to the ALJ, without
And even if Plateau had known that the readings at MPL Bl would have been higher without the fresh-air leakage, the ALJ failed to explain why, in light of the normal readings at MPLs 7 and 8, these readings would have caused concern to a reasonable operator. Considering that all the air exiting the gob passed through MPLs 7 and 8 — before traveling more than 8,000 feet and being mixed with air from other sources on its way to MPL Bl — the ALJ gave no reason to treat the readings at MPL Bl as a better measurement of gob conditions than the readings at MPLs 7 and 8. Commissioner Young contended that the readings at MPLs 7 and 8 did not necessarily provide a “materially more accurate picture of methane in the gob” given that the air exiting the gob was diluted by another stream of air before passing through MPLs 7 and 8,
see
Nor did the affirming commissioners provide a reasonable explanation of how Plateau was on notice. Commissioner Young placed great weight on the statements by Plateau’s witnesses Mr. Hales and Mr. Jones. But those statements do not support a finding of notice. Although Hales and Jones acknowledged that the system was running at full capacity, they never testified that the ventilation system had been pushed
beyond
its capacity or that the system was not performing as required or expected. Jones, a staff mining engineer, testified that he had been watching the rise in methane levels after July 26 and that through July 31 the mine had not reached a stage that warranted a change in the system. The increase in methane was not alarming, he said, because the size of the gob was also increasing. He did not feel that any action was necessary because they were still “way above [the] requirements on the face.” R. Vol. 4 at 802. He did not specifically remember whether he had been aware of the two exceedances of the action level at MPL Bl, and he testified that had he been aware of them, he would have been concerned that the levels were “close to what we could handle in the ventilation system.”
Id.
at 803. But he maintained that they “had not exceeded” that level.
Id.
Hales, the mine manager, likewise testified that on the day of the accident, methane levels were “a little high” but “in requirements,” and that he “didn’t see any warning.”
Id.
at 752. Both testified that Plateau’s only option, given that maximum capacity had been reached, would have been to cease or slow production.
2
This is not evidence
To be clear, the fact that Plateau was operating its bleeder system in compliance with its ventilation plan does not itself preclude a finding of a
VII. CONCLUSION
Because substantial evidence does not support the ALJ’s finding that the regulation’s notice requirement was satisfied, we reverse the decision of the AL J.
Notes
. This statement is apparently based on the dissenting commissioners' perception that faulty distribution was the only theory that the Secretary presented at the hearing. The dissenters are correct that the Secretary's primaiy theory related to distribution, but certain lines of questioning at the hearing indicate that the Secretary also may have been pursuing the theory that the mine had a limited ventilating potential.
. Commissioner Young faulted Plateau for continuing to increase its production rate on July 31,