Knight Hawk Coal, LLC v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

MSHA revoked Knight Hawk Coal's approved ventilation plan for perimeter mining at the Prairie Eagle Underground Mine and cited the company for operating without an approved plan. Judge Thomas P. McCarthy found that MSHA relied on unreliable smoke testing and evidence of agency bias, while failing to consider the no-less-protection requirement, alternative tracer-gas testing, and disagreements within the survey team. He vacated the citation and reinstated the prior ventilation plan because the revocation was arbitrary and capricious. This initial decision was replaced three days later by the amended decision in lake-2019-0087-r-alj, which retained the same disposition while correcting and reorganizing portions of the text.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: Citation No. 9035600 was vacated and Knight Hawk's previously approved ventilation plan was reinstated.
• Subsequent action: This version was superseded by the August 19 amended decision in lake-2019-0087-r-alj.
• Key point: MSHA must provide a reasoned, evidence-based explanation and consider the Mine Act's no-less-protection requirement before revoking an approved ventilation plan.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949

KNIGHT HAWK COAL, LLC,

Contestant

v.

SECRETARY OF
LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Respondent

CONTEST
PROCEEDING

Docket No. LAKE 2019-0087-R

Citation No. 9035600;
11/14/2018

Mine: Prairie Eagle –
Underground

Mine ID: 11-03147

DECISION
AND ORDER

Appearances:               R. Henry Moore, Jackson Kelly PLLC,
Pittsburgh, PA for the Contestant [1]

Travis W.
Gosselin, Office of the Solicitor, U.S. Department of Labor, Chicago, IL for
the Respondent

Before: Judge McCarthy

This proceeding is before the
undersigned on a Notice of Contest and Motion to Expedite filed November 15,
2018, by Knight Hawk Coal, LLC, pursuant to § 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d) (“Mine Act”) and
Commission Procedural Rule 20(b). The contest challenges technical Citation No.
9035600-01, as modified, issued to Contestant on November 14, 2018 for
operating without an approved ventilation plan under 30 C.F.R. § 75.370(a)(1),
which states that “[t]he 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 systems
at the mine.”

A hearing was held in St. Louis,
Missouri, on March 28-29 and April 1, 2019. During the hearing, the parties
offered lay and expert witness testimony and documentary evidence. [2]
Witnesses were sequestered. The parties submitted post-hearing and reply briefs,
the latest of which was filed on June 7, 2019.

Based on a careful review of the
record, including the parties’ post-hearing and reply briefs, and observation
of the demeanor of witnesses, [3] the undersigned makes the
following findings of fact and conclusions of the law and orders that the
technical citation be vacated and the previously approved ventilation plan be
reinstated.

.

I. STIPULATIONS

The parties submitted the following
stipulations, which have been accepted into the record:

1. The Prairie Eagle Underground Mine (PEUG) is a “mine” as that term is
   defined in Section 3(h) of the Mine Act.

2. Knight Hawk is engaged in mine operations in the United States, and its
   mining operations affect[ed] interstate commerce.

3. Knight Hawk is the operator of the PEUG, MSHA ID No. 11-03147.

4. Knight Hawk is subject to the jurisdiction of the Federal Mine Safety
   and Health Act of 1977, 30 U.S.C. §801 et seq.

5. The Administrative Law Judge has jurisdiction in this matter.

6. Citation No. 8429603 was issued to the mine operator on November 14,
   2018, and subsequently modified to correct the citation number – Citation No.
   9035600.

7. The subject Citation was properly served by a duly authorized
   representative of the Secretary upon an agent of Knight Hawk on the date and
   place stated therein, and may be admitted into evidence for the purposes of
   establishing its issuance.

8. The Prairie Eagle Underground Mine mines coal utilizing continuous
   miners.

9. The PEUG began production in August 2006 with a single MMU. Since that
   time, it has implemented four (4) additional MMU’s; each of them going through
   the extended cut evaluation process where they began at 20-foot cuts and worked
   their way to 40-foot cuts. These evaluations, as outlined in [Procedure
   Instruction Letter] I12-V-11 (Reissue of I10-V-09, I08-V-03, I06-V-6),
   consisted of a mine history evaluation, plan provisions, training requirements,
   on-site evaluation, ventilation plan approval, and supplemental information
   pertaining to cut depth, ventilation, respirable dust, methane, and roof
   support. All five MMU’s operate with extended cut plans and each of them
   conducted perimeter mining. Specifically, each extended cut plan, including
   perimeter mining, was approved by a District Manager, including the current
   one. The Ventilation Plan for each MMU is identical.

10. [Procedure Instruction Letter] 112-V-11 is marked as [G. Ex. 14] and may
    be admitted into evidence.

11. Program Policy Letter P13-V-12 is marked as [G. Ex. 13] and may be
    admitted into evidence.

12. Knight Hawk has conducted perimeter mining since January 2007.

13. During the initial startup of the mine, the Roof Control Plan and the
    Ventilation Plan [were] subject to an initial evaluation of both plans,
    including perimeter mining. That continued for 22 months for the Roof Control
    Plan and 41 months for the Ventilation Plan.

14. Roof bolting is generally eliminated during perimeter mining because
    after the entry is mined and the continuous miner withdrawn, it is barricaded
    off. Some limited roof bolting is still performed during perimeter mining in
    approaches to evaluation points. Per the approved roof control and ventilation
    plans, installation of four props/jacks [were] required prior to beginning each
    perimeter cut and the props/jacks must be left in place or removed remotely
    after a cut is completed.

15. Specifically, each MMU began at the following date and the extended cut
    plan, including perimeter mining, was approved by the following District Manager
    on the following dates:

• MMU 002 – June 2008,
  Acting DM Mary Jo Bishop (March 1, 2010)

• MMU 003 – December
  2011, DM Robert Simms (August 17, 2012)

• MMU 004 – July 2013,
  DM Robert Simms (December 9, 2013)

• MMU 005 – August
  2017, DM Ronald Burns (September 27, 2017)

16. The Roof Control Plan timeline is as follows:

*    01/26/06 –
Conditional approval with no perimeter mining. MSHA stated, “an in-mine
evaluation, to evaluate the mine’s specific mining conditions and the
effectiveness of the plan in addressing those conditions will be required
before any such approval can be considered.” The plan expired 07/26/06.

*    07/31/06 –
Extension of the conditional approval until 01/26/07.

*    01/18/07 –
Received a conditional approval for perimeter mining and an extension of the
base plan; both until 07/18/07.

*    January 2007 –
Perimeter Mining begins at PEUG.

*    07/02/07 –
Knight Hawk requested, “Due to the extent of mining completed to date, the
multiple visitations/evaluation from Mr. Jeff Williams, and the successful
implementation of the plan, we are hereby requesting removal of the
‘conditional’ approval of the Roof Control Plan and that the plan be placed
into effect.”

*    07/10/07 –
Conditional approval extended another 6 months for further evaluation until
01/18/08.

*    01/11/08 –
Knight Hawk requested removal of the ‘conditional’ approval.

*    03/11/08 –
Conditional approval extended until 05/12/08.

*    04/11/08 –
Consolidated plan submitted as per MSHA request.

*    05/30/08 – Plan
approved without the ‘conditional’ constraint; including perimeter mining.

17. The Ventilation Plan timeline is as follows:

*    08/02/06 –
Conditional approval with perimeter mining. The plan expired 11/03/06.

*    10/31/06 –
Request to either remove the ‘conditional’ approval or extend the date.

*    11/08/06 –
Extension of the conditional approval until 02/03/07.

*    January 2007 –
Perimeter Mining begins at PEUG.

*    01/29/07 –
Request to either remove the ‘conditional’ approval or extend the date.

*    02/01/07 –
Extension of the conditional approval until 05/03/07.

*    05/02/07 –
Request to either remove the ‘conditional’ approval or extend the date.

*    05/02/07 –
Extension of the conditional approval until 08/02/07.

*    07/23/07 –
Request to either remove the ‘conditional’ approval or extend the date.

*    08/04/07 –
Extension of the conditional approval approved until l0/09/07.

*    10/02/07 –
Request to either remove the ‘conditional’ approval or extend the date.

*    12/28/07 –
Extension of the conditional approval until 03/28/08.

*    03/17/08 –
Request to either remove the ‘conditional’ approval or extend the date.

*    04/11/08 –
Consolidated plan submitted as per MSHA request. The same date [Contestant] submitted
a consolidated Roof Control Plan per MSHA’s request as well. No approval
received.

*    12/08/08 –
Consolidated plan submitted as per MSHA request. No approval received.

*    11/12/09 –
Consolidated plan submitted as per MSHA request.

*    03/01/10 – Plan
approved without the ‘conditional’ constraint; including perimeter mining.

18. A typical Perimeter Mining Panel is 1 mile in length and 1,240 feet in
    width; approximately 150 acres. It takes approximately 11 months to complete a
    Perimeter Mining Panel and PEUG typically seals each panel within 30 days from
    completion of mining.

19. At the request of District Manager Ronald Burns, on December 19, 2017,
    the MSHA Pittsburgh Safety and Health Technology Center (“Tech Support”)
    performed an evaluation of the bleeder system which includes areas where
    perimeter mining was conducted at Prairie Eagle Underground on January 9-10,

20. A report was prepared and submitted to the District Manger on or about
    February 8, 2018 and is marked as [G. Ex. 1] and may be admitted into evidence.

21. Similar evaluations were requested by District Manager Burns at the
    Viper Mine operated by ICG Illinois LLC and of the Gateway North Mine operated
    by Peabody Gateway North Mining LLC and are marked as [P. Exs. 35 and 34] respectively
    and may be offered into evidence at the hearing in this matter, subject to the
    objections outlined in the Secretary’s Motion in Limine. [ [4] ]

22. On January 29, 2018, Knight Hawk met with MSHA to discuss the
    preliminary findings of Tech Support’s evaluation of the mine’s bleeder system.
    During that meeting[,] District Manager Ronald W. Burns requested that Knight
    Hawk address the issues raised by those preliminary findings.

23. On March 7, 2018, Knight Hawk received a copy of Tech Support’s report.
    A copy of the report is marked as [G. Ex. 1]. A copy of the analytical gas
    sampling results from the Tech Support evaluation is marked as [G. Ex. 16] and
    may be admitted into evidence.

24. Knight Hawk’s ventilation plan including perimeter mining was last
    approved on February 15, 2015. A copy is marked as [G. Ex. 12] and may be
    admitted into evidence.

25. On March 13, 2018, Thomas Hasenstab[, a mining engineer and the current
    superintendent for Knight Hawk,] sent a letter to Mr. Burns outlining Knight
    Hawk’s response concerning perimeter mining. Such letter is marked as [G. Ex.
    2] and may be admitted into evidence.

26. On April 12, 2018, Mr. Burns wrote Mr. Hasenstab directing Knight Hawk
    to revise its ventilation plan. Such letter is marked as [G. Ex. 3] and may be
    admitted into evidence.

27. On April 22, 2018, Mr. Hasenstab sent a letter to Mr. Burns submitting a
    response to his letter of April 12, 2018 with an attached copy of Knight Hawk’s
    March 13, 2018 letter. Such letter is marked as [G. Ex. 4] and may be admitted
    into evidence.

28. On May 3, 2018, Mr. Burns wrote Mr. Hasenstab as a follow-up to a
    conference call on April 30, 2018. Such letter is marked as [G. Ex. 5] and may
    be admitted into evidence.

29. On May 15, 2018, Mr. Hasenstab wrote Mr. Burns responding to his May 3,
    2018 letter. Such letter is marked as [G. Ex. 6] and may be admitted into
    evidence.

30. On June 7, 2018, Mr. Burns wrote Mr. Hasenstab responding to his letter
    dated May 15, 2018. Such letter is marked as [G. Ex. 7] and may be admitted
    into evidence.

31. On July 5, 2018, Mr. Hasenstab wrote Mr. Burns in response to his letter
    of June 7, 2018. Such letter is marked as [G. Ex. 8] and may be admitted into
    evidence.

32. On October 22, 2018, Mr. Burns wrote Mr. Hasenstab in response to his
    July 5, 2018 letter. Such letter is marked as [G. Ex. 9] and may be admitted
    into evidence.

33. On November 14, 2018, Mr. Burns wrote Mr. Hasenstab revoking Knight
    Hawk’s approved ventilation plan. Such letter is marked as [G. Ex. 10] and may
    be admitted into evidence.

34. In order to abate the Citation and to continue to operate[,] Knight Hawk
    submitted a ventilation plan which MSHA approved. A copy of such Interim Plan
    is marked as [G. Ex. 15] and may be admitted into evidence.

35. Citation No. 9035600 was issued on November 14, 2018, pursuant to
    section 104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
    § 814(a) alleging a violation of Section 75.370(a)(1).

36. Under the heading and caption “Condition or Practice” the Citation
    alleges as follows:

The mine operator is mining without a ventilation plan
approved by the District Manager. The operator’s plan is revoked on this date
because it fails to address existing, identified deficiencies. The parties’
negotiations have reached impasse. In numerous discussions, and by letters
dated April 12, May 3, June 7, and October 22, MSHA advised Knight Hawk Coal of
concerns and of certain issues required to be addressed in its ventilation
plan. Specifically:

1. The designs of the typical bleeder system does not
   control the air direction through all individual “blocks”, including the air
   direction in the pillared area within each “block”. [30 CFR Sections
   75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9).]

Section 75.334 requires a bleeder system to be used to
control the air passing through the area and to continuously dilute and move
methane-air mixtures and other gases….Both conditions must be addressed in the
bleeder system design.

The bleeder system in this case is not controlling the
air in an effective manner as determined by the ventilation survey conducted in
January 2018.

Effective ventilation requires sufficient air movement
in appropriate directions. The ventilating device intended to control air
movement through the area did not effectively control the air movement.

Air movement was not perceptible in portions of the
pillared areas, including many extended-depth perimeter cuts. The air direction
through the rooms from which the perimeter cuts were mined w[as] not always
consistent throughout the length of the room, nor with the net direction of
airflow through the block. No perceptible air movement was observed in
approximately 57 of the 138 perimeter cuts examined. A few of the bolted
perimeter cuts were examined in greater detail. [5] Movement of air was
observed in approximately 57 of the 138 perimeter cuts examined. A few of the
bolted perimeter cuts were examined in greater detail. Movement of air was
detected in parts of some of these cuts near the adjacent rooms, but not near
the faces. Air movement was not perceptible in some perimeter cuts in which air
flowed past the front of the cut. Where air movement was detected in perimeter
cuts, it appeared to be intermittent and/or the result of eddy currents created
by air flowing past the front of the cut, rather than the result of ventilation
control devices directing airflow into the perimeter cuts. Observations
indicated the stronger the air flowing past the front of the cut, the more
pronounced the movement of air at the test location within the perimeter cut. Movement
of air caused by eddy currents for which no tests could practically be
conducted in all the perimeter cuts (some were not accessible due to their
location with respect to accessible areas) is not considered [an] appropriate
or reliable means to control air movement.

Air movement was not adequately controlled through all
sets of bleeder entries. Direction of air movement was not uniformly consistent
in adjacent bleeder entries within a block or throughout the entire length of
individual bleeder entries. Air moved in opposing direction across an
individual bleeder entry at several locations. No perceptible air movement was
observed in portions of bleeder entries in several locations. The direction of
the net airflow through many blocks was difficult to discern; in some blocks it
could not be determined due to inconsistent airflow direction. Tests for
airflow directions using chemical smoke in the rooms across the front and back
of each completed block did not consistently determine the direction of airflow
through the block. Comparisons of air quantity measurements between blocks (in
the cut-through connections and in the former section entries) were not always
conclusive in determining air direction within a block due to the net flow of
air through the block being less than reasonable inaccuracies in air quantity
measurements.

2. The method to control air movement to ventilate the
   unbolted extended-depth perimeter cuts within the pillared area is not
   provided. The extended cuts are part of the pillared area within the worked-out
   area, and the air must be controlled to ensure effective ventilation of the
   extended-depth cuts. [30 CFR Sections 75.334(b)(1), 75.334(c)(4), 75.371(bb),
   and 75.372(b)(9)]

3. The air direction through all individual “blocks”,
   including the air direction in the pillared area within each “block”, is not
   shown in the ventilation plan drawings or on the ventilation map. [30 CFR
   Sections 75.364(a)(2)(iii) and 75.372(b)(9)]

The direction of airflow through bleeder entries and
pillared areas, as well as at evaluation point (EP) locations, must be defined
to determine whether a proposed means of evaluation will result in proper
evaluation of the effectiveness of the bleeder system, including the pillared
areas. Definition of the proper direction of airflow through bleeder entries
and pillared areas, as well as at EP locations, also is necessary for the mine
examiner to determine if air is moving in the proper direction while conducting
tests during the weekly examination to evaluate the effectiveness of the
bleeder system.

4. The air direction at EP locations is not shown in
   the ventilation plan drawings or on the ventilation map. [30 CFR Sections
   75.364(a)(2)(iii), 75.371(y), 75.371(z), and 75.372(b)(9)]

The direction of airflow through bleeder entries and
pillared areas, as well as at EP locations, is necessary to determine whether a
proposed means of evaluation results is proper evaluation of the effectiveness
of the bleeder system. Definition of the proper direction of airflow through
bleeder entries and pillared areas, as well as at EP locations, is necessary
for the mine examiner to determine if air is moving the proper direction while
conducting tests during the weekly examination to evaluate the effectiveness of
the bleeder system.

5. The specified means of evaluation of the worked-out
   area does not provide sufficient information to determine the effectiveness of
   the bleeder system, including (a) whether air was moving in the proper
   direction through all “blocks,” including the bleeder entries and pillared
   areas in each “block”; (b) the means to reasonably assure ventilation of the
   extended-depth portions of the pillared areas; or (c) the effectiveness of
   ventilation through the worked-out area. [30 CFR Sections 75.334,
   75.364(a)(2)(iii), 75.364(a)(2)(iv), 75.371(y), and 75.371(z)]

In letters dated April 22, May 15, and July 5, 2018,
Knight Hawk Coal failed to provide adequate responses to MSHA’s concerns. In
MSHA’s October 22, 2018 letter, Knight Hawk Coal was informed of the district
manager’s intent to revoke the ventilation plan if the stated deficiencies were
not addressed.

Standard 75.370(a)(1) was cited 22 times in two years
at mine 1103147 (22 to the operator, 0 to a contractor).

36. The Citation was terminated on November 13, 2018. A copy of such
    Citation is marked as [G. Ex. 11] and may be admitted into evidence.

37. The parties have identified [G. Exs. 1-20] for the Secretary and [P.
    Exs. 1-39] for Knight Hawk and such exhibits may be offered into evidence
    without objection except [P. Exs. 34-35 and G. Exs. 19-20].

Jt. Ex. 1.

II. FINDINGS OF
FACT

At Prairie Eagle Underground Mine (“PEUG” or
“mine”), Knight Hawk conducted perimeter mining—a form of second coal mining [6]
where a series of extended-depth cuts [7] are made around the
perimeter of a block, including the area between blocks. Perimeter mining
involves the reduction in pillars. [8]

Perimeter mining developed in
Illinois where a high percentage of the land on the surface of underground
mines is prime farmland. P. Ex. 37 at 1. As a result, Illinois has strict
limitations on subsidence in mining. Id. [9] Perimeter mining has been
used since at least the 1990s. Id. at 2.

At the mine, each block consists
of several rooms. [10] Once the rooms are mined
out through continuous, advance mining, cuts are made into the solid coal
around the perimeter of the block. These perimeter cuts are unsupported and
contain no permanent roof supports, except for two cuts per block that are
bolted in order to maintain access for examination of the cut-through
connection that will join a subsequent block. G. Ex. 1 at 5-7.

On March 1, 2010, MSHA approved a ventilation
plan for the mine, without conditions. Jt. Ex. 1, ¶17. The ventilation plan
included 40-foot, extended-cut perimeter mining. G. Ex. 12 at 38. The
ventilation plan required a bleeder system to continuously dilute and move
methane-air mixtures and other gases, dusts, and fumes from a worked-out area
away from active workings and into a return air course or to the surface of the
mine. Tr. 83, 325; see 30 C.F.R. § 75.334(b)(1). The approved ventilation
plan stated that it “contains the minimum ventilation system designed to
control methane and respirable dust . . . in accordance with 30 C.F.R.
§ 75.370. The methods and practices are considered to be suitable for the
mining systems employed at this mine, and upon [approval], shall be followed
until such time that a revised method or methods are submitted for review and
approved for use by the MSHA District Manager.” G. Ex. 12 at 1.

Under the ventilation plan, the
bleeder system consisted of a single bleeder entry into each room and a bleeder
connector—connecting the bleeder entry to the mined out area—as well as
stoppings and curtains to control the airflow through the area. Tr. 500; see
generally G. Ex. 12. [11] In order to evaluate the
effectiveness of the bleeder system, the ventilation plan included evaluation
points (“EPs”). Tr. 320; P. Ex. 30 at 9. Examination of the bleeder system
involved traveling in each block to EPs to test the concentrations of methane
and oxygen as well as the direction and quality of airflow at the EPs. Tr.
319-21; P. Ex. 30 at 8, 9; see 30 C.F.R. § 75.364(a)(2)(iii).

Although MSHA approved the
ventilation plan in 2010, former District 8 supervising mining engineer and
ventilation supervisor, Mark Eslinger, [12] credibly testified that
“District 8 want[ed] to get rid of perimeter mining.” Tr. 416. Eslinger
testified about multiple occasions since 2010 where MSHA employees of District
8 expressed the view that District 8 was attempting to “get rid” of perimeter
mining, including conversations that Eslinger had with Stan Reider, an engineer
in District 8, and Doug Herndon, the District 8 Roof Control Supervisor, who told
Eslinger that District 8 was “going to say [perimeter mining]’s illegal.” Tr.

417. Eslinger also credibly testified that he served a 90-day detail in 2001 in
     Arlington, Virginia, where he had discussions that led him to believe “that
     people in MSHA headquarters want to get rid of perimeter mining.” Tr. 444. When
     pressed for names on extended cross-examination by the Secretary, Eslinger
     credibly testified that “I have had discussions with Kevin Stricklin[, the
     Administrator for Coal Mine Health and Safety (Tr. 470)] and he did not seem to
     be in favor of perimeter mining.” Tr. 445. On the other hand, Thomas Hasenstab,
     a mining engineer and the current superintendent for Knight Hawk, testified
     that he did not think that District Manager Ronald Burns was trying to
     eliminate perimeter mining (Tr. 354), and Burns testified that he “ha[d] not
     told anybody that [he’s] trying to keep them from doing perimeter mining” (Tr.
     212). The undersigned discounts this testimony from Hasenstab and Burns in
     light of the motivations of the witnesses and the totality of the evidence in
     the record. In his role as the superintendent for Knight Hawk, Hasenstab
     regularly interacts with District 8 and must maintain an ongoing relationship with
     its District Manager. Furthermore, it is irrelevant what Hasenstab thinks or Burns
     may have said; the important consideration is the actions, not the words, of
     MSHA and District Manager Burns.

On December 30, 2013, after the approval of the
mine’s ventilation plan, Stricklin issued Program Policy Letter No. P13-V-12 (“PPL
P13-V-12”) “to clarify and improve the examination and evaluation of bleeder
systems by mine operators.” G. Ex. 13 at 1. PPL P13-V-12 states that “[i]t is
anticipated that District Managers would not suggest changes to the relevant
portions of existing approved ventilation plans absent conditions affecting the
safety or health of miners that arise following the issuance and effective date
of” PPL P13-V-12. Id. PPL P13-V-12 defines a bleeder system to
“include[] the area from which pillars are wholly or partially recovered,
bleeder entries, bleeder connectors, and all associated ventilation control
devices that control the air movement through the area.” Id. at 2. PPL
P13-V-12 also states that

some entries and/or
rooms surrounding the pillared area may not have been routinely identified as
traveled bleeder entries. These entries and/or rooms have been commonly
referred to as primary internal airflow paths, open areas within the worked-out
area, inner bleeders, mine foreman entries, part of the gob, or by other names.
However, these entries and/or rooms around the pillared area are an inherent
part of many bleeder systems and function as entries.

Id. at 3-4.

Contestant’s expert, Gary Hartsog, [13]
credibly testified that PPL P13-V-12 changed the definition of a bleeder
system. Specifically, Hartsog testified that PPL P13-V-12 included as part of
the bleeder system “any pillar that’s left untouched . . . . Commonly,
we don’t refer to certain pillars next to the gob or around the gob as being
part of the bleeder system. It’s part of the gob.” Tr. 513. Hartsog testified that
perimeter cuts “are in the abandoned area. Once those are mined, I would not
expect them to be re-examined once left.” Tr. 480. Hartsog also credibly
testified that PPL P13-V-12 redefined what constituted a bleeder entry. Tr.
493-94. He stated that PPL P13-V-12 “defines bleeder entries as being any
entries that . . . are between or around blocks that have not been
second mined. Before this [policy] document came out, that was not the case.” Tr.
523.

In 2017, Gateway North, operated by Peabody
Gateway North Mining, LLC (“Peabody”), was also conducting perimeter mining under
an approved ventilation plan that included 20-foot perimeter cuts. Tr. 159-160.
When Gateway North submitted a plan for 40-foot perimeter cuts, Burns talked
with MSHA Arlington headquarters and Pittsburgh Tech Support about performing a
ventilation survey at Gateway North because “we had concerns that those 40-foot
cuts could be ventilated properly.” Tr. 160. [14] From February 8 through
March 1, 2017, MSHA conducted a ventilation survey of the Gateway North Mine bleeder
system and “determined that there [were] deficiencies in the design of
perimeter mining.” Tr. 159; P. Ex. 34. As a result of the Gateway North
investigation, MSHA found that

[a]ll methane
concentrations detected were less than 0.1%; [a]ll oxygen concentrations detected
were greater than 20.6%; [t]he outby room of the first pod was not ventilated;
[t]he direction of airflow through most pods was difficult to discern; [i]n ten
of the eighteen pods, the general direction of airflow was opposite the
direction indicated in the mine ventilation plan; [t]here was no perceptible
air movement found in almost all perimeter cuts probed; [t]he total ventilating
pressure differential between the belt air course and the left side return
entries at the front of the 2 nd North Panel was less than 0.2 inches
of water gauge; [and t]he pressure differential across MPL regulator was less
than 0.1 inches of water gauge.”

P. Ex. 32 at 2.

Although MSHA did not revoke Gateway North’s extant
ventilation plan, MSHA never approved a ventilation plan that included 40-foot
perimeter cuts. Tr. 164-65. Shortly after the ventilation survey, Gateway North
ceased conducting perimeter mining entirely. Tr. 223, 235-36, 246-47.

After conducting the ventilation
survey at Gateway North, MSHA decided to conduct a ventilation survey at Viper
Mine, another mine conducting perimeter mining, and at PEUG. Tr. 160. MSHA
chose to inspect PEUG first because MSHA “felt the hazards may be more for
Prairie Eagle than Viper.” Tr. 165. In particular, the Viper mine was only
engaged in doing perimeter cuts around, not between blocks. Tr. 166, 239. [15]

On January 9 and 10, 2018, Respondent’s
expert, Dennis Beiter, [16]
headed a team from MSHA Tech Support [17] —Bradley R. Wurl, Diane
M. Doyle-Coombs, Gaetano J. Iannacchione, A. Zharif MdAzmi, and George N.
Aul—as well as John Hohn, District 8 ventilation specialist supervisor, and
Michael Pritchard and Bernard Reynolds, District 8 ventilation specialists. G.
Ex. 1. Hasenstab and Bill Jankousky, the corporate safety director for Knight
Hawk, assisted the MSHA team on January 9, 2018. Tr. 297.

As part of the survey, the MSHA team measured
air quality for methane and oxygen levels through handheld devices and bottle
samples and used chemical smoke to determine airflow direction at various
locations in the mine. G. Ex. 1 at 2. This included testing air quality and
airflow in the perimeter cuts themselves. Beiter testified that perimeter
mining offered a “unique opportunity” to conduct a survey in a pillared area
because a survey team would not ordinarily be able to access a mined-out area
in second mining, such as longwall mining or full pillar extraction. Tr. 563. Burns
also testified that, when conducting a ventilation survey, “as a general rule,”
one does not go into or analyze the ventilation in pillared areas. Tr. 222.

When conducting tests in unbolted
perimeter cuts, the MSHA team would not themselves go into the unbolted
perimeter cuts, which are areas where miners do not normally work or travel. Tr.
298-99. The team would send a probe into the cut with one tube that would
collect an air sample and a second tube that would release smoke. This smoke
was created using a chemical reaction that resulted in heat, making the smoke
rise. Tr. 536-37. The MSHA team then attempted to observe the movement of the
smoke from approximately 44 feet away in order to determine whether, and in
what direction, there was air movement in the perimeter cut. Tr. 52-53, 257.
To aid these attempts in the dimly lit perimeter cut, an MSHA representative would
point a light from outside the perimeter cut into the cut, while a pair of
lights on the probe itself also provided some level of illumination. Tr. 122,

520. The results of the chemical smoke tests were not always repeatable. Tr.
     561-62.

While
conducting the PEUG ventilation survey, the members of the MSHA team were not
always in agreement as to the results of the chemical smoke tests. Tr. 543. Hasenstab
testified about disagreements within the survey team regarding perceptible
movement and a “general uncertainty in regards to movement or no movement”
among MSHA personnel. Tr. 299. Hasenstab also testified that “there were
several times [Doyle‑Coombs from the MSHA survey team] said that there was
perceptible movement and Mr. Beiter would come up and say no, that’s not
movement.” Tr. 378. Hasenstab also credibly testified that during the
ventilation survey:

There
w[ere] definitely some varying interpretations of movement of the smoke.
. . . I do recall Mr. Beiter arriving and very quickly making a
determination that the current perimeter cut we were in when smoke was released
was no perceptible movement. I disagreed with that interpretation of that
particular cut. From that point forward, MSHA personnel—I’ll just say they
seemed to be very quick as to a determination if there was movement or not.

Tr. 349-50.

Similarly, Jankousky credibly testified
that at least one member of the survey team, Doyle‑Coombs, observed perceptible
movement, but became visibly upset when Beiter overruled her observations and then
directed that some of her notes be rewritten and some of her observations, or
those of Knight Hawk’s representatives, be changed in accordance with Beiter’s
interpretations. Tr. 378-79, 389-90, 567-68. Beiter also acknowledged that
MSHA personnel were not able to come to a consensus as to the results of these
smoke tests until he intervened and imposed his explanation of the “expected
phenomenon.” Tr. 104-105.

MSHA’s survey team did not use
tracer gas, a technique for determining air movement by releasing a certain gas
in one area and then sampling for that gas in another area to assess how long
it takes the tracer gas to move and to assess its concentration level. Tr. 533,

560. MSHA did not use tracer gas despite the fact that Beiter admitted that
     “[u]sually you would use tracer gas when we can’t confirm that there is
     airflow.” Tr. 573. Hartsog testified that he believed that the chemical smoke
     tests were not valid tests but “an attempt by District 8 to get rid of
     perimeter mining.” Tr. 415. Based on the record evidence, further stated below,
     bolstering this opinion, including the unique and sui generis use of the smoke
     tests, the actions of Beiter during the ventilation survey that resulted in overruling
     other members of the survey team, and the fact that the smoke tests were at
     times unrepeatable, the undersigned finds Hartsog’s expert opinion to be persuasive.

District Manager Burns testified
about three particular concerns that he had with regard to perimeter mining as
a result of the PEUG ventilation survey and Beiter’s subsequent report. First,
Burns was concerned about the possibility of a spontaneous combustion [18]
event occurring due to a general lack of ventilation. Tr. 239. Although at the
time of the November 14, 2018 plan revocation there had been no spontaneous
combustion events at PEUG (G. Ex. 2 at 6), Burns relied on heating events that
he identified as spontaneous combustion events, and he was focused on preventing
a first spontaneous combustion event from occurring. Tr. 174-75.

Burns’ second concern involved the
possibility of the release of methane from a roof fall due to the fact that the
perimeter cuts themselves were unbolted. Tr. 182. Hartsog testified that, if
there were a roof fall, any methane liberated in the roof fall would be
effectively “diluted and rendered harmless by the ventilation system.” Tr. 488;
see also Tr. 149. The ventilation survey, which found roof falls in some
perimeter cuts but no elevated levels of methane, bolsters this testimony. G.
Ex. 18-1.

Burns’ third concern dealt with
methane and oxygen levels within the general area of the perimeter cuts. Tr.

177. Burns based this concern on a single bottle sample showing a concentration
     of methane of 4.7% where a roof support drill hole penetrated a “bleeder” in
     the roof of an active area not subject to perimeter mining. Beiter relied on this
     event as “evidence that methane may be encountered at any time.” Tr. 177;
     see also Tr. 149. Under the approved ventilation plan, the methane from the
     bleeder was effectively diluted to less dangerous levels. Tr. 149. Additionally,
     Hartsog testified that there were no ignition sources in the mine that might
     contribute to the dangers of methane buildup. Tr. 492. The Secretary failed to rebut
     this testimony.  

On January 29, 2018, Beiter and Burns met with,
and gave the preliminary results of the survey to, Hasenstab, Jankousky, Dale
Winter, Kyle Griggs, Bernie Kern, Brian Wallace, and other staff from Knight
Hawk. Tr. 93, 290-91. At this meeting, MSHA showed Knight Hawk maps of the mine
indicating the findings of the ventilation survey, including levels of methane
and oxygen as well as the presence and direction of airflow at specific
locations. Tr. 167. These maps were introduced into evidence as G. Ex. 18. After
reviewing Beiter’s report, Burns determined that there were deficiencies in
Knight Hawk’s ventilation plan and the bleeder system was not adequate and
effective to ventilate the mine. Tr. 171-72. Burns requested that Knight Hawk
submit a revised ventilation plan to address the deficiencies. Tr. 168.

On February 8, 2018, Beiter and the
MSHA team drafted an internal report summarizing the results of the survey. G.
Ex 1. Concerning air quality, the report stated that the highest concentration
of methane was 0.12% and that the lowest concentration of oxygen was 20.2%. Id .
at 1-2. These results were well within the allowable limit of methane below 1%
under 30 C.F.R. § 75.323(c)(1), and the allowable minimum level of
oxygen above 19.5% under 30 C.F.R. § 75.321(b). See also G. Ex. 16
at 2. Both Beiter and Hasenstab testified that the mine had a low oxidation
rate. Tr. 98, 326. The oxidation of coal results in a reduction in the level of
oxygen. Tr. 510.

Concerning air movement, the report set forth
several alleged deficiencies, including: 1) “The direction of net airflow
direction through many blocks was difficult to discern; in some blocks it could
not be determined”; 2) “No perceptible air movement was observed in
approximately 57 of the perimeter cuts examined”; 3) “The air directions
through the rooms . . . were not always consistent throughout the
length of the room, nor with the net direction of airflow through the block”;
4) the “[d]irection of air movement was not always consistent in adjacent
bleeder entries within a block, or the entire length of individual bleeder
entries”; and 5) “[n]o perceptible air movement was observed in portions
of bleeder entries in a few locations.” G. Ex. 1 at 2-3. [19]
The report and Beiter’s testimony discounted air movement observed in perimeter
cuts as a result of “eddy currents created by air flowing past the front of the
cut.” G. Ex. 1 at 2; Tr. 81. Beiter opined that he did not “think eddy
current[s] would be an appropriate means of actually providing ventilation for
that extended cut because the eddy currents are depend[ent] upon the amount of
airflow moving by [the cut] and there is nothing in the ventilation plan that
indicated there had to be a certain amount of airflow or certain velocity of
airflow in the airflow moving in that room in front of there.” Tr. 81. The previously
approved ventilation plan required 7,000 cubic feet per minute of airflow over
the continuous miner during perimeter mining. G. Ex. 12 at 7; G. Ex. 1 at 6. The
previously approved ventilation plan did not require any specific amount of
airflow across perimeter cuts. G. Ex. 12. Nor is there any evidence that MSHA
suggested any minimum amount of airflow across perimeter cuts during
negotiations with Knight Hawk or listed this as a deficiency in the approved
ventilation plan.

On March 13, 2018, Knight Hawk sent a letter in
response to the concerns raised by MSHA in the January 29, 2018 meeting and those
raised in Beiter’s February 8 report, which Knight Hawk did not receive until
March 7, 2018. G. Ex. 2. According to Knight Hawk, the short period of time since
the receipt of the report limited its ability to comment, or to retain an
expert, if further evaluation became necessary. G. Ex. 2 at 6. Knight Hawk alleged
that Beiter’s February 8 report contained opinion and speculation and used
“assumed definitions and designation” of the terms “pillared areas, bleeder
entries, partial recovery second mining, and return air split” as well as
differing interpretations among MSHA investigators as to the definition of “no
perceptible movement.” Id . at 7. The March 13 letter also stated that
the February 8 report contained conflicting information and inaccuracies
between the report and the sketches of the ventilation plan. Id . at 7.

Knight Hawk’s March 13 letter also documented,
with extensive detail, the safety record of perimeter mining and established
that “[p]erimeter mining results in a lower miner exposure to respirable dust,
lower citations, a lower injury rate, a lower exposure to noise, and a lower
exposure to red zone/danger zone” and did not involve roof bolting in most
perimeter cuts, eliminating all hazards associated with that process. Id.
at 2. The letter further noted that the mine had never experienced any
spontaneous combustion events. Id . at 6.

Testimony bolstered the safety
benefits of perimeter mining. Burns conceded that perimeter mining “is a safe
form of mining” and provides less exposure to certain hazards released into the
air than other forms of mining. Tr. 173. Hasenstab agreed that the previously
approved ventilation plan has “significant” safety benefits. Tr. 337. Jankousky
echoed this sentiment. Tr . at 370-71. Contestant’s expert Hartsog testified
that perimeter mining was not only a safe form of mining, but that it was safer
than continuous mining. P. Ex. 37 at 2 ; see also Tr. 371 (Jankousky)
(“Definitely perimeter mining is safer.”). Burns admitted that perimeter mining
was a safer form of second mining. Tr. 224.

On April 12, 2018, MSHA sent a
letter to Knight Hawk that listed the alleged deficiencies in the mine’s
ventilation plan for the first time. G. Ex. 3. Although this letter does not
reference Knight Hawk’s March 13 letter, Burns testified that he considered
that letter before sending the April 12 letter. Tr. 136-37.  The undersigned
discredits this testimony. Burns’ April 12 response belies actual consideration
of and fails to specifically address the safety and health benefits of
perimeter mining or whether revocation of the previously approved ventilation
plan would result in less protection under the interim plan. See generally
G. Ex. 3. As Mine Superintendent Hasenstab noted in his April 22 correspondence
with Burns, “[w]e have attached [our March 13] letter as we are currently
unsure if you have received and/or read the letter because your letter did not
refer to it. We believe that it sets out the many safety and health benefits of
our current mining system that you should consider as well as supporting the
mine specific nature of the plan.” G. Ex. 4 at 1.

Apart from self-serving trial
testimony elicited in an attempt to show that MSHA considered the important
safety and health advantages of perimeter mining and did not summarily
discounted them and leave them unanswered, there is no evidence during
negotiations that Burns actually addressed or expressly considered such
arguments that he acknowledged at trial were irrelevant. Rather, Burns
testified that such purportedly considered arguments were not relevant
considerations during his ventilation plan review because they dealt with
mining conditions while the perimeter cuts were made (Tr. 173-74), and did not
address MSHA’s specified deficiencies that the bleeder system was being
adequately ventilated, examined and evaluated. Tr. 171-72. According to Burns,
his concern was “after the bleeder system was established, after they left
there.” Tr. 174.

Burns failed to explain how or why
he would actually consider safety and health concerns that he deemed
irrelevant. Furthermore, the Citation relied on § 75.334(b)(1), which
concerns the bleeder system during pillar recovery, not “after they left
there.” Tr. 174. The undersigned remains unconvinced by Burns’ post hoc
rationalization at trial, which was never explained to Contestant during
negotiations. In these circumstances, the undersigned finds Burns’ testimony
that he actually considered the significant safety and health protections
afforded by perimeter mining under the revoked plan to be disingenuous and not
credible.

The April 12 letter lists six
alleged deficiencies in the mine’s previously approved ventilation plan:

·         
The design of the typical bleeder system does not control the air
direction through all individual “blocks,” including the air direction in the
pillared area within each “block.”

·         
The method to control air movement to ventilate the unbolted
extended-depth perimeter cuts within the pillared area is not provided.

·         
The air direction through all individual “blocks,” including the
air direction in the pillared area within each “block,” is not shown in the
ventilation plan drawings or on the ventilation map.

·         
The air direction at EP locations is not shown in the ventilation
plan drawings or on the ventilation map.

·         
The use of permanent ventilation control devices, such as
regulators and stoppings, to control air movement through the worked-out area
would be prudent. Temporary control devices such as curtains are more
susceptible to damage and/or inadvertent change than permanent control devices. [ [20] ]

·         
The specified means of evaluation of the worked-out area does not
provide sufficient information to determine the effectiveness of the bleeder system.

G. Ex. 3 at 1. This letter also indicated that a bottle
sample, taken on March 1, 2018, found a concentration of methane of 4.7% where
a roof support drill hole penetrated a “bleeder” in the roof of an active area
not subject to perimeter mining, “which is evidence that methane may be
encountered at any time.” Id. ; see also Tr. 149. Under the
approved ventilation plan, that methane was effectively diluted to less
dangerous levels by the air used to ventilate the section. Tr. 149.

On April 22, 2018, Knight Hawk sent another
letter to MSHA. G. Ex. 4. Knight Hawk contended that the ventilation system in
the worked out area “does not fit readily into the term ‘bleeder’ in 30 CFR
§ 75.334(b) because the area at issue does not involve ‘pillar recovery.’”
Id . at 2 n.2. Knight Hawk did not advance this position at the hearing
or in its post-hearing brief, and the undersigned rejects it.

Addressing the alleged deficiencies listed in MSHA’s
April 12 letter, Knight Hawk explained how the approved ventilation plan does
indicate airflow direction and ventilation controls such as stoppings,
regulators, and curtains. Id . at 2. Furthermore, Knight Hawk explained that
the ventilation plan was working effectively and preventing the accumulation of
gases, dusts, or fumes, as shown by the low levels of methane. Id . Knight
Hawk also addressed the concentration of methane found on March 1, 2018, stating
that the bleeder was penetrated in an active unit—not during perimeter
mining—and reiterated that no roof penetration occurs during perimeter mining. Id .
at 1.

In its April 22 letter, Knight Hawk also stated
that “[t]he ability to continue to use the current plan is consistent with MSHA
Program Policy Letter No. P13-V-12, which addresses the evaluation of bleeder
systems and states, ‘[i]t is anticipated that District Managers would not
suggest changes to the relevant portions of existing approved ventilation plans
absent conditions affecting the safety or health of miners.’” Id . at 2. Knight
Hawk’s April 22 letter also reiterated the contention that the definition of
“perceptible movement” “varied among the MSHA personnel” and different
interpretations of “no perceptible movement” “was evident and apparent” among
the MSHA investigation team. Id . at 3. This letter closed by stating
that “[i]t appears we may be at an impasse in discussions about the plan.” Id.
at 4.

On May 3, 2018, MSHA responded to Knight Hawk’s April
22 letter. G. Ex. 5. MSHA reiterated the six alleged deficiencies identified in
its April 12 letter, but, for the first time, included citations to regulations
for each alleged deficiency. Specifically, the letter alleged that:

·         
the bleeder system does not control the airflow direction through
all blocks, including in the “pillared area,” citing 30 C.F.R.
§§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and 75.372(b)(9);

·         
the method to control air movement to ventilate the perimeter
cuts is not provided, citing 30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4),
75.371(bb), and 75.372(b)(9);

·         
the airflow direction is not shown through the blocks, citing
30 C.F.R. §§ 75.364(a)(2)(iii) and 75.372(b)(9);

·         
the airflow direction at EPs is not shown on the ventilation
plan, citing 30 C.F.R. §§ 75.364(a)(2)(iii), 75.371(y), 75.371(z),
and 75.372(b)(9);

·         
the plan should use permanent ventilation control devices rather
than temporary ones, citing 30 C.F.R. §§ 75.333(b)(5) and
75.334(c)(4); and

·         
the specified means of evaluation do not provide sufficient
information to determine the effectiveness of the bleeder system, citing
30 C.F.R. §§ 75.334, 75.364(a)(2)(iii) and (iv), and 75.371(y) and
(z).

The letter ended by granting Knight Hawk two weeks to submit
a ventilation plan in response to the alleged deficiencies. [21]

On May 15, 2018, Knight Hawk
responded and addressed each of the alleged deficiencies and cited regulations
in detail. G. Ex. 6. Knight Hawk’s May 15 letter goes into great depth referencing
each cited regulation, and even addresses those regulations that are not
applicable. This letter further elucidated Knight Hawk’s earlier contentions,
stating that: 1) the current ventilation plan dilutes and moves methane, other
gases, dust, and fumes out of the worked-out area; 2) controls such as
stoppings, regulators, curtains, and connectors are illustrated on the
ventilation plan; and 3) the ventilation map indicates the airflow direction
within the entirety of the mine. Knight Hawk offered that it would also add
more statements to the plan to help make the exact airflow patterns more clear,
such as, “[t]he direction of airflow for the worked[-]out area in the 5W/3N/2ME
is from EP4 to EP3 to EP2 to EP1.” Id . Knight Hawk also argued that the
mine’s ventilation system does not fit within the definition of “bleeder” under
30 C.F.R. § 75.334(b) because the area does not involve “pillar recovery.”
Id . at 5. [22] Finally, Knight Hawk emphasized
that when MSHA “Tech Support performed their evaluation of airflow in the mined
out entries,” they entered “barricaded/dangered off” areas “where miners do not
normally travel.” Id . at 7.

On June 7, 2018, MSHA responded to
Knight Hawk’s May 15 rejoinder and alleged that Knight Hawk “ did not
address the noted deficiencies” and “did not provide any other revisions to the
currently approved ventilation plan to address the 30 CFR standards.” G. Ex. 7
at 1. MSHA then offered its explanation of why Knight Hawk’s responses were
inadequate and relied on the January 2018 ventilation survey and § 75.334(b)(1)
to allege for the first time that the bleeder system was not controlling the
air passing through the area. Id . The letter specifically emphasized
that “[t]he location of current ventilating devices does not control the air
movement throughout the entire worked-out area” and “[t]he
worked-out area is not ventilated throughout the entire
pillared area, as determined by the ventilation survey conducted in January
2018.” Id . at 2. The word “throughout” is not found in the regulations
cited in MSHA’s May 8 letter, but it does appear in 30 C.F.R.
§ 75.334(a)(1), a different regulation than what the Citation relies on. Despite
Burns’ earlier May 3 letter citing specific regulations, Burns testified that
the use and emphasis of the word “throughout” in his June 7 letter was not
referring to any specific regulation, but it “was just my term there to make
sure they understand that I’m not just talking about the mouth [of a panel]. I
mean from the active working section to the mouth of the panel. Throughout the
entire area has got to be done.” Tr. 205. The undersigned does not credit this testimony.
Rather, Hasenstab credibly testified that the term “throughout” does not
capture the intent of the plain meaning of the regulation, “I believed we
complied in so far as the intent of the law is to ventilate through the worked
out area, not throughout.” Tr. 335.  

MSHA’s June 7 letter also rejected
Knight Hawk’s offer to add statements describing the direction of airflow. G.
Ex. 7. Specifically, the letter stated that “[s]tatements on maps are not a
substitute for showing the actual direction of airflow.” Id . at 1. The
letter provided no support for this assertion. At the hearing, Burns testified
that written statements were not adequate because “the way we read the
regulation in plain language it says you show the direction on the maps and you
show the direction at EP[s].” Tr. 204. Hartsog testified that he had seen
approved ventilation plans that described airflow direction with words rather
than arrows. Tr. 501-02.  

After the June 7 letter, Knight
Hawk spoke with MSHA personnel by conference call on June 14, and in person on
June 19, 2018. G. Ex. 8. Burns could not remember or testify about either
discussion. Tr. 206. At these meetings, two alternative methods for ventilating
perimeter cuts were discussed: 1) connecting two perimeter cuts from opposite
sides by holing together angled cuts with straight cuts so air would flow
though there, and 2) “sawtooth” cutting. Tr. 329-31. Knight Hawk rejected
connecting angled and straight perimeter cuts because roof control and
subsidence issues were unfavorable, the geometry would not work with regard to
crosscut distances, and the combined cuts would exceed 40 feet. Tr. 332-33,

362. The term “sawtooth” cutting was never defined by MSHA, nor did Knight Hawk
     ask for clarification of the term at the time. Tr. 333, 344. [23]

On July 5, 2018, Knight Hawk sent a
letter in response to MSHA’s June 7 letter and the subsequent discussions with
MSHA personnel. G. Ex. 8. Knight Hawk opined that its May 15 letter offered
changes to the currently approved ventilation plan that addressed the alleged
deficiencies and the parties were at apparent impasse. In anticipation of MSHA’s
issuance of a technical citation, Knight Hawk requested that abatement be
extended until an ALJ ruled on the validity of the existing plan because the
mine “has operated safely and effectively under the current plan since 2007 and
it provides significant safety benefits.” Id . Otherwise, Knight Hawk
requested discussions about what was acceptable to abate the technical citation
and operate under an interim ventilation plan during litigation. Id .

On October 22, 2018, MSHA sent
another letter to Knight Hawk. G. Ex. 9. This letter again laid out the alleged
deficiencies, but listed only five deficiencies. Id . MSHA revised one of
the previously identified deficiencies—the alleged requirement that the
ventilation plan use permanent rather than temporary ventilation controls—as
“prudent” rather than mandatory. Burns’ letter stated that “[a]bsent modification
of the ventilation plan to provide the miner protection outlined above, I will
revoke your currently approved plan on November 12, 2018.” Id . at 3. The
letter concluded that MSHA “will be more than happy to discuss a plan, which
would be consistent with the provisions addressed above[, which] would permit
mining to be conducted until a resolution is reached.” Id .

The record establishes that MSHA
did not consider the experiential opinions and learning from District 8’s own
ventilation specialists and inspectors intimately familiar with the mine during
the plan revocation process. District Manager Burns, who was generally
unfamiliar with and had limited experience with perimeter mining (Tr. 240-41),
confirmed that he did not talk to or seek input from his own inspectors during
the plan revocation process, despite the fact that his ventilation specialists
would regularly perform six-month plan reviews on site and review mine maps to
identify problems and ensure the plan was still “adequate.” Tr. 155-58, 233-34.
During such reviews, “[a]n evaluation of the bleeder system was done in
accordance with what the plan was as far as one of the evaluation points. We
did not go to any area that the mine examiners would not go to during that
time.” Tr. 158. District 8 ventilation specialist, Mike Pritchard, regularly
performed such ventilation plan reviews. Tr. 383. Specifically, “he walks the
air courses, walks intakes, returns, bleeders, and he . . . evaluates
the bleeders.” Tr. 387. In January 2019, shortly after revocation of the plan,
safety director Jankousky discussed perimeter mining and MSHA’s revocation of
the ventilation plan with Pritchard during an underground, six-month
ventilation review. Tr. 381-82. Pritchard told Jankousky that he did not see
anything wrong with the revoked system of ventilation for perimeter mining. Tr.
381, 383, 385-86. [24]

By attachment to letter dated
November 5 and attached revisions to letter dated November 6, 2018, Knight Hawk
submitted an interim ventilation plan that did not include perimeter mining. G.
Ex. 15; compare G. Ex. 12 with G. Ex. 15. By separate letters both
dated November 14, 2018, MSHA approved the interim plan (G. Ex. 15), which does
not permit perimeter mining (Tr. 354), and formally revoked the mine’s
ventilation plan, which included perimeter mining (G. Ex. 10). On November 14,
2018, MSHA also issued the technical citation at issue under 30 C.F.R. § 75.370(a)(1)
for mining without a ventilation plan approved by the District Manager. G. Ex.

11. [25] Under questioning from
    the undersigned, Burns verified that nothing had changed at all since 2010,
    except for the ventilation survey. Tr. 240-41. [26]

Subsequent to the revocation of the
mine’s ventilation plan, two alleged spontaneous combustion events occurred at
the mine, one underground and one on the surface. Tr. 175, 376, 492, 512. The
evidence as to the cause of these events was inconclusive. Tr. 376. Having
considered arguments and evidence as to the progeny of the events, the undersigned
credits Jankousky’s conclusion that it could not be determined whether the
events were spontaneous combustion. Tr. 376.  Furthermore, perimeter mining was
not involved in either event, and both events occurred after the revocation of
the ventilation plan. Tr. 225. Consequently, the undersigned finds that these
events have little material bearing on resolution of the issues presented.

III. LEGAL PRINCIPLES AND ANALYSIS

The Secretary
contends that the sole issue in this case is whether MSHA acted arbitrarily and
capriciously when it revoked the mine’s previously approved ventilation plan. Tr.

11. Knight Hawk contends, instead, that there are four issues: 1) whether
    the previously approved ventilation plan was suitable; 2) whether the
    revocation was improper and contrary to law; 3) what is the Secretary’s
    burden of proof in this matter; and 4) how should the decisions in Prairie
    State Generating Co., LLC , 35 FMSHRC 1985 (July 2013) ( Prairie
    State I ), aff’d , 792 F.3d 82 (D.C. Cir. 2015) ( Prairie State
    II ), and Signal Peak Energy, LLC , 40 FMSHRC 1059 (Aug. 2018), appeal
    docketed , No. 18-72837 (9th Cir. 2018), be considered with Peabody Coal
    Co ., 18 FMSHRC 686 (1996) ( Peabody ). Tr. 11.

As noted in the undersigned’s Order
Denying the Secretary of Labor’s Motion in Limine, Commission case law
regarding the standard of review applicable to determining whether a district
manager’s rejection of a ventilation plan appears to be in a state of flux. 41 FMSHRC
217 (Mar. 2019) (ALJ). MSHA alleges that Knight Hawk operated without a
suitable ventilation plan as required by § 303(o) of the Mine Act. 30
U.S.C. § 863(o); [27] see also Zeigler
Coal Co. v. Kleppe , 536 F.2d 398, 406-07 (D.C. Cir. 1976). If I were working
from a clean slate, I would find that the burden of proof that lies with the
Secretary is the same as any violation the Secretary brings before this
tribunal. It is a burden of proof the Secretary must satisfy before this
fact-finding body and not a standard of review as if the undersigned merely
functions as an appellate body for the Secretary’s decision. As the Court of
Appeals for the District of Columbia found in Zeigler , [28]
ventilation plans are enforceable as mandatory standards. 536 F.2d at 409. Consequently,
during the enforcement of such a plan, the Secretary would have to satisfy the
same burden for a violation of § 303(o) as any other mandatory standard
found in the Mine Act. Id. (“[W]e conclude that requirements of duly
adopted ventilation plans are generally enforceable under § 104(b) and the
statute’s other enforcement provisions.”). The revocation of a ventilation plan
in its entirety should not provide a means for the Secretary to avoid this
burden. I would reject the position that the Commission must defer to the
Secretary because to act otherwise would be to “displace entirely the expertise
of the Secretary.” Mach Mining, LLC v. MSHA , 728 F.3d 643, 658 (7th Cir.
2013) ( Mach Mining II ), aff’ing , Mach Mining , 34 FMSHRC
1784 (Aug. 2012) ( Mach Mining I ). This position gives short shrift to
the expertise inherent in the Commission itself. 30 U.S.C. § 823(a)
(“The Commission shall consist of five members . . . who by reason of
training, education, or experience are qualified to carry out the functions of
the Commission.”). [29]

Working from this clean slate, I would
apply the standard as articulated in Peabody . Under this standard, the
Secretary bears the burden of proof to establish by a preponderance of the
evidence that “(1) the previously approved [ventilation] plan is no longer
suitable to the conditions and the mining system of the coal mine, and
(2) the new plan provision is suitable.” 18 FMSHRC at 690 . To
be blunt, the Secretary utterly fails to satisfy this burden. As more fully
explained below, the Secretary relies on evidence—the smoke tests and the
ventilation survey overall—that I find unreliable. Of note, the Secretary
failed to establish the propriety or reliability of the smoke tests when used
in second mining, and substantial evidence demonstrated that the smoke tests as
conducted at the mine were unreliable. Tr. 52-53, 561-62. Credible evidence
demonstrated that the ventilation at the mine effectively ventilates the mine
according to 30 C.F.R. § 75.334(b)(1). This evidence includes levels
of methane and oxygen that were described as “excellent.” Tr. 428. Furthermore,
I found the Secretary’s expert to be, by and large, unreliable. He was evasive
and frequently avoided answering questions directly.

Turning to the merits of Burns’
three concerns regarding perimeter mining, the concentrations of methane and
oxygen established that the previously approved ventilation plan continuously diluted
and moved methane-air mixtures and other gases, dusts, and fumes from the
worked-out area. G. Ex. 1 at 1-2. The evidence also established that, prior to
the revocation of the ventilation plan, PEUG did not experience any spontaneous
combustion events. G. Ex. 2 at 6. Finally, the plan adequately mitigates any
risk of a roof fall, and testimony established that a hypothetical roof fall
would be effectively rendered harmless. Tr. 488. In other words, Burns’
concerns were utterly unwarranted. The record demonstrates that the previously
approved plan continues to be suitable to the conditions and mining system of
the mine. Consequently, the Secretary failed to satisfy by a preponderance of
the evidence that Knight Hawk’s previously approved ventilation plan was
unsuitable.

However, the undersigned is not working
from a clean slate. In Signal Peak , the Commission split 2-2 on what
standard of review applies when considering an MSHA district manager’s
revocation of a ventilation plan, creating no precedential decision. [30]
Then-Chairman Jordan and Commissioner Cohen affirmed the judge’s application of
the arbitrary and capricious standard of review of the district manager’s
decision to reject a ventilation plan submitted by the operator. Signal Peak ,
40 FMSHRC at 1064. [31] They relied on Mach
Mining , where the Seventh Circuit found that that a Commission majority
correctly determined that a district manager’s refusal to approve a ventilation
plan should be reviewed under an arbitrary and capricious standard, and on Prairie
State II , where the D.C. Circuit held that the arbitrary and capricious
standard of review applied by the Commission majority to the Secretary’s
plan-suitability determination “was at least a permissible one.” Id . at
93.

By contrast, Commissioners Young
and Althen found that the judge applied the wrong legal standard and that
substantial evidence did not support a finding that the operator’s plan was
unsuitable to provide safe and healthful ventilation at the specific mine. Signal
Peak , 40 FMSHRC at 1074. They opined that Mach Mining I and Prairie
State I were wrongly decided; however, they acknowledged that those
Commission decisions were upheld by the circuit courts as permissible
interpretations. Id. at n.10. [32] In the end,
Commissioners Young and Althen stated that it was unnecessary to reject such
circuit court precedent because substantial evidence did not support rejection
of the operator’s proposed ventilation plan when analyzed under the safety
standard at issue. They observed that the Commission has taken conflicting
positions on the Secretary’s burden of proof, comparing the Peabody and C.W.
Mining , 18 FMSHRC 1840 (Oct. 1996), cases cited by Contestant
in his Response, with both the Mach Mining and Prairie State I cases
cited by the Secretary in his Motion. Signal Peak , 40 FMSHRC at 1075-76. [33]

Thus, given the apparent evolving
Commission precedent concerning the appropriate standard of review for
evaluating a district manager’s revocation of a mine’s ventilation plan, the
recent change in Commission composition, [34] and the prerogative of
the new Commission to rationally explain reversal of existing precedent, [35]
even in light of appellate court or Supreme Court affirmation of existing
precedent, [36] the undersigned
concludes that the most recent Commission precedent follows the permissible
interpretation that applies an arbitrary and capricious standard in these
circumstances. Although the Commission split 2-2 in Signal Peak , creating
no precedential decision and leaving the judge’s decision below in place, this
is a permissible interpretation and one that the Commission may, upon a
reasoned explanation, change. FCC , 556 U.S. at 514. As such, it is
prerogative of the new Commission to rationally explain the affirmation or reversal
of existing and conflicting precedent, [37] and to change course even
in light of appellate court or Supreme Court affirmation of existing precedent. [38]

Accordingly, applying the arbitrary
and capricious standard as a permissible interpretation, the Secretary must
establish that MSHA’s revocation of the mine’s previously approved and
presumptively suitable ventilation plan was not arbitrary, capricious, an abuse
of discretion, or otherwise contrary to law (“arbitrary and capricious”). 5 U.S.C.
§ 706(2)(A); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. C o., 463 U.S. 29, 43 (1983); Prairie State , 792 F.3d at
82; Mach Mining I , 34 FMSHRC at 1790.

It is of
critical note that the agency bears the burden of articulating a “rational
connection between the facts found and the choice made.” Bowman Transp.,
Inc. v. Arkansas-Best Freight System, Inc. , 419 U.S. 281, 285 (1974)
(quoting Burlington Truck Lines v. United States , 371 U.S. 156, 168
(1962)). This inquiry involves “examining the reasons for agency decisions—or,
as the case may be, the absence of such reasons.” Judulang v. Holder ,
565 U.S. 42, 52-53 (2011); see FCC , 556 U.S. at 515 (noting “the
requirement that an agency provide reasoned explanation for its action”).

As delineated
in Motor Vehicle Mfrs. , an agency action is arbitrary and capricious
when it: 1) relies on factors that were not intended to be considered;
2) entirely failed to consider an important aspect of the problem;
3) offered an explanation for its decision that runs counter to the evidence
before the agency; or 4) is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise. 463 U.S. at 43. MSHA
acted arbitrarily and capriciously under these factors.

A.                
MSHA relied on inappropriate factors.

MSHA revoked
the previously approved ventilation plan by technical citation citing five
major deficiencies that Knight Hawk allegedly failed to address or include in a
modified or revised plan submission. MSHA grounded the alleged deficiencies in
mandatory ventilation standards set forth in 30 C.F.R. §§ 75.334(b)(1);
75.334(c)(4); 75.364 (a)(2)(iii) and (iv); 75.371(y), (z), and (bb); and 75.372(b)(9).
Although the Secretary mentions seven other regulations, discussed further
below in Section III.C, the citation largely rests on § 75.334(b)(1) to
revoke the ventilation plan. [39] This regulation states
that

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.

30 C.F.R. § 75.334(b)(1). This
regulation has two requirements: 1) that the bleeder system “control the
air passing through the area”; and 2) that the bleeder system
“continuously dilute and move methane-air mixtures and other gases, dusts, and
fumes from the worked-out area.” There is no question that the mine has low
levels of methane and adequate levels of oxygen.

G. Ex. 1 at 1-2; Tr. 25, 70,
141-42, 296, 421, 485-86. However, MSHA alleges that the bleeder system fails
to control the air passing through the mine. See, e.g. , G. Ex. 9 at 1. To
support this allegation, MSHA relies on the ventilation survey. G. Ex. 3 at 1. This
included the use of chemical smoke tests inside the extended-depth perimeter
cuts. Tr. 120-21.

As noted above,
an agency action is arbitrary and capricious if it relies on factors that were
not intended to be relied upon. Motor Vehicle Mfrs. , 462 U.S. at 43. Here,
MSHA improperly relied on two factors: unreliable smoke tests conducted inside
the perimeter cuts, and a bias against perimeter mining that is supported by
substantial record evidence.

In using the
smoke tests inside the perimeter cuts, MSHA gathered data that would not have
been considered in other forms of second mining or in the consideration of a
bleeder system under § 75.334(b)(1). Tr. 559-60, 573. As Respondent’s expert Beiter
repeatedly testified, the ability to go into a perimeter cut presented a
“unique opportunity” because a survey team would not be able to access a mined-out
area in second mining. Tr. 563; see also Tr. 50, 117, 559, 571. As
Beiter further testified, because a survey team could not access a mined-out
area in longwall or full pillar recovery mining, a ventilation survey would
only include taking measurements from the crosscut leading up to and coming out
of the mined-out area. Tr. 116. Beiter agreed that he had “never done a
ventilation survey actually in a pillared area, either full extraction, partial
extraction, or longwall.” Tr. 116-17. Burns echoed this sentiment and testified
that, “as a general rule,” one does not go into or analyze the ventilation in
pillared areas. Tr. 222.

In revoking the
mine’s ventilation plan, MSHA improperly relied on a “unique” opportunity to
apply a different standard—requiring perimeter mining to pass a test not
required of any other form of second mining—without explanation; “where an
agency applies different standards to similarly situated entities and fails to
support this disparate treatment with a reasoned explanation and substantial
evidence in the record, its action is arbitrary and capricious and cannot be
upheld.” Burlington Northern & Santa Fe R. Co. v. Surface Transp. Bd. ,
403 F.3d 771, 777 (D.C. Cir. 2005). Accordingly, MSHA’s revocation of the
mine’s ventilation plan was arbitrary and capricious. [40]

Despite the
inability to obtain comparable measurements from inside a pillared area in other
forms of second mining, MSHA relied heavily on the measurements taken from
inside the perimeter cuts at the mine. In doing so, MSHA applied a different test
to perimeter mining than it applied to any other types of second mining under § 75.334(b)(1).
Other than describing the situation as “unique,” there was no explanation given
as to why perimeter mining was subject to requirements that were not applied to
any other type of second mining.

In addition,
MSHA exhibited a bias against perimeter mining, and there is substantial
evidence in the record to warrant the inference that MSHA was engaging, by
incremental steps, in an attempt to eradicate perimeter mining. This bias led
MSHA to conduct the ventilation survey seeking a predetermined result. Forest
Guardians v. U.S. Fish & Wildlife Serv. , 611 F.3d 692, 711 (10th Cir.
2010) (using arbitrary and capricious standard in reviewing predetermination
claim). The most probative evidence and credible testimony demonstrate that District
8’s true aim was to “get rid” of perimeter mining and declare it “illegal.” Tr.

417. Former MSHA District 8 supervising engineer, Mark Eslinger, credibly
     testified that he served a 90-day detail in 2001 in Arlington, Virginia, where
     he had discussions that led him to believe “that people in MSHA headquarters
     want to get rid of perimeter mining.” Tr. 444. When pressed for names on
     further cross-examination by the Secretary, Eslinger credibly testified that he
     “had discussions with Kevin Stricklin and he did not seem to be in favor of
     perimeter mining.” Tr. 445. Stricklin executed PPL P13-V-12, without notice-and-comment
     rulemaking. Eslinger also testified that Reider, an engineer in District 8,
     warned that District 8 was trying to “get rid” of perimeter mining. Tr. 417.
     Furthermore, MSHA roof control supervisor, Doug Herndon, told Eslinger during a
     December 2018 meeting presented by Tech Support that MSHA was going to declare
     perimeter mining was “an illegal system of mining. That’s how they are going to
     get rid of it.” Tr. 441-42.

This bias was
evidenced not only from testimony, but also from the June 7, 2018 letter where
MSHA specifically emphasized that the ventilation plan was inappropriate
because “[t]he worked-out area is not ventilated throughout
the entire pillared area.” G. Ex. 7 at 2. As noted above, the undersigned
discredits Burn’s post hoc rationalization for the emphasis of a word that does
not appear in § 75.334(b)(1). Far from simply being Burns’ “term to make
sure they understand that I’m not just talking about the mouth” of the panel,
the term implies a standard not found in the cited regulation, but the standard
found in § 75.334(a)(1). Tr. 205. The use and emphasis of the word
“throughout,” which does not appear in the cited regulation, demonstrates an
application of that regulation outside normal bounds and suggests some motive
other than an unbiased application of the proper regulation.

The application
of the smoke tests also indicates MSHA’s bias and result-driven conclusions. As
found above, Hartsog persuasively testified that the chemical smoke tests were not
valid tests, but “an attempt by District 8 to get rid of perimeter mining.” Tr.

415. MSHA’s bias was also evident from Beiter’s actions, discussed below,
     overruling Doyle-Coombs when she made notations documenting perceptible
     movement. Rather than consider the observations of a member of the survey team
     or even those from the operator’s representatives, Beiter intervened and directed
     changes to those recorded observations that reflected less favorably on the previously
     approved ventilation plan.

The record
establishes that MSHA also failed to consider the experiential opinions and expertise
from District 8’s own ventilation specialists and inspectors, who are
intimately familiar with the mine, during the plan revocation process. Although
Burns was generally unfamiliar with and had limited experience with perimeter
mining (Tr. 240-41), he did not talk to or seek input from his own inspectors
during the plan revocation process, despite the fact that his ventilation
specialists would regularly perform six-month plan reviews on site and review
mine maps to identify problems and ensure that the plan was still “adequate.” Tr.
155-58, 233-34. These inspectors included Mike Pritchard, who told safety
director Jankousky that he did not see anything wrong with the revoked system
of ventilation for perimeter mining at PEUG. Tr. 381, 383, 385-86.

MSHA’s
unexplained failure to consider the expertise found in its own agency
demonstrates that MSHA failed to consider an important aspect of the problem
and supports the inference that MSHA was motivated by a desire to chip away at
and to ultimately eradicate perimeter mining.

Although
Hasenstab testified that he did not believe that Burns was trying to get rid of
perimeter mining, the testimony and the actions of MSHA when confronted with
requests for approval of ventilation plans that included perimeter mining
demonstrate that District 8 was attempting to get rid of perimeter mining. Tr.

354. As noted above, the undersigned discounts Hasenstab’s testimony on this
     point because he would not want to generate ill will with District 8,
     complicating a key relationship in operating a mine in that district. Other
     testimony from disinterested witnesses and the actions of MSHA establish that
     there was an active effort by District 8 against perimeter mining. While none
     of this evidence alone indicates a bias, taken together, the evidence—including
     the credited testimony, the use of inapplicable language, the use of the unreliable
     smoke tests, and the failure to consider the opinions of District 8’s
     ventilation specialists intimately familiar with the ventilation plan at the
     mine—demonstrates a pattern of bias against perimeter mining that infected the
     decision-making process, leading to a predetermined, and thus arbitrary and
     capricious, decision. Forest Guardians , 611 F.3d at 711.

Either of
these, the use of the unreliable smoke tests and the demonstrated bias against
perimeter mining, would alone render MSHA’s decision arbitrary and capricious. Motor
Vehicle Mfrs ., 462 U.S. at 42 (An agency acts arbitrarily and
capriciously when it relies on improper factors when making its decision.).

B.                 
MSHA failed to consider important factors.

An agency
action is arbitrary and capricious if the agency failed to consider an aspect
of the problem. Motor Vehicle Mfrs. , 462 U.S. at 42. In revoking
the mine’s ventilation plan, MSHA failed to consider several important factors
including the no-less-protection standard; using tracer gas; and the
disagreements within the survey team and from Knight Hawk’s representatives
concerning the varied and inconsistent results of the smoke tests.

At the outset, MSHA overlooked and failed to
consider that its regulatory authority to revoke the previously approved
ventilation plan is subject to a unique statutory limitation: “[n]o mandatory
health or safety standard . . . shall reduce the protection afforded
miners by an existing mandatory health or safety standard.” 30 U.S.C. § 811(a)(9);
see United Steel v. Mine Safety & Health
Administration , 925 F.3d 1279, 1288 (D.C. Cir. 2019) . “This unusual
limitation ‘expressly mandates that no reductions in the level of safety below
existing levels be permitted, regardless of the benefits accruing from improved
efficiency.’” Id. at 1282 (quoting United Mine Workers of Am., Int’l
Union v. Dole , 870 F.2d 662, 666 (D.C. Cir. 1989)). This is the no‑less‑protection
standard. The Mine Act requires that MSHA “state the basis for its conclusion”
that a new health or safety standard satisfies the no-less-protection standard.
Id. at 1282-83. Ventilation plans are the equivalent of safety and
health regulations promulgated through notice-and-comment rulemaking. Prairie
State Generating Co. LLC v. Sec’y of Labor , 792 F.3d 82, 86 (D.C. Cir.
2015). Accordingly, when revoking the previously existing plan that provided
for perimeter mining, MSHA could not approve an interim plan without perimeter
mining that provided less protection, and MSHA needed to state the basis for
its conclusion that revocation of the status quo would not result in less
protection for miners under the interim plan.

Knight Hawk presented substantial
evidence to MSHA establishing that perimeter mining was a safe and effective
method of mining at the mine that resulted in lower exposure to respirable
dust, noise, and red or danger zones; a lower citation and injury rate;
elimination of all hazards associated with roof bolting; superior overall
ventilation of the entire perimeter panel, as compared to longwall gob and
pillared areas; and adequate ventilation to ensure that methane-air mixtures
and other gases, dusts, and fumes from worked-out areas are continuously
diluted and routed away from active workings into a return air course or to the
surface. G. Ex. 2 at 3-7; Tr. 301. Burns conceded that perimeter mining
“is a safe form of mining” and provides less exposure to certain hazards
released into the air than other forms of mining. Tr. 173. Additional testimony
bolstered the fact that perimeter mining is a safe form of mining. Tr. 337
(Hasenstab) (agreeing that the previously-approved ventilation plan has
“significant” safety benefits); Tr. 370-71 (Jankousky). Hartsog went
further and stated that not only was perimeter mining a safe form of mining,
but it was safer than continuous mining. P. Ex. 37 at 2. Jankousky agreed. Tr. 371
(“Definitely perimeter mining is safer.”). Even Burns conceded that perimeter
mining was a safer form of second mining. Tr. 224.

Despite substantial
evidence that perimeter mining is a safe and likely safer form of mining with
regard to recurring hazards, the credited, probative evidence in the record
establishes that MSHA failed to even consider, much less address, the
comparative safety advantages of perimeter mining under the previously approved
ventilation plan. As noted above, the undersigned has discredited Burns’
testimony at trial that he actually considered the safety and health benefits
of perimeter mining first raised by Knight Hawk in its March 13 letter.

More
importantly, the Mine Act requires that MSHA “state the basis for its
conclusion” that safety and health standards prevailing under the interim plan
satisfies the no-less-protection standard. United Steel , 925 F.3d at 1282 ( quoting Nat’l Min. Ass’n v. MSHA ,
116 F.3d 520, 536 (D.C. Cir. 1997)) . Any such statement by MSHA “is
subject to review under the Administrative Procedure Act and must manifest that
MSHA engaged in reasoned decisionmaking.” Id. (citing Nat’l Min.
Ass’n v. MSHA , 116 F. 3d at 536).

Here, MSHA made no statement or
analysis that the significant and uncontroverted safety and health protections
afforded by perimeter mining under the revoked ventilation plan were actually
considered or outweighed by safety and health standards that gave no less
protection against respirable dust, noise, red zone, and roof bolting under the
interim ventilation plan. MSHA failed to consider whether revoking the ventilation
plan would result in Knight Hawk’s performance of more advance continuous
mining than it would have performed if the ventilation plan remained in place. Because
there is substantial evidence in the record demonstrating that advance continuous
mining is less safe than perimeter mining, MSHA failed to consider an important
factor in making its decision. Specifically, MSHA failed to consider the unique
statutory limitation, which cabined its revocation discretion.

Such unexplained agency action in
excess of statutory limitations found in 30 U.S.C. § 811(a)(9) is
arbitrary and capricious decision making. Motor Vehicle Mfrs. , 463 U.S. at 43 (finding that an agency action is arbitrary and
capricious “if the agency has . . . entirely failed to consider an
important aspect of the problem”); see also International Union,
United Mine Workers of America v. U.S. Department of Labor, 358 F.3d 40,
44-45 (D.C. Cir. 2004) (finding that MSHA’s failure to provide an adequate
explanation for its decision to withdraw an air quality proposal was arbitrary
and capricious action). Here, MSHA failed to offer any explanation, let alone
an adequate one, as to why the revocation of the previously approved ventilation
plan satisfied the limitations of the statutory no‑less‑protection standard. United
Steel , 925 F.3d at 1282-83. This is a sufficient basis, standing alone, to
vacate MSHA’s revocation action and reinstate the previously approved
ventilation plan.  

In addition to
failing to consider the no-less-protection standard, MSHA acted in an arbitrary
and capricious manner when it failed to consider a tracer gas test, which is
usually employed to confirm airflow. In fact, MSHA failed to even consider the
use of tracer gas to confirm its unreliable smoke tests. As noted above, tracer
gas is a method of determining air movement by releasing a certain gas in one
area and them sampling for that gas in another area. Beiter acknowledged that
“[u]sually you would use tracer gas when we can’t confirm that there is airflow.”
Tr. 573. Hartsog confirmed that tracer gas would be the “proper tool for the
task” of determining the effectiveness of a bleeder system. Tr. 532-33.

However, in
deviation from acknowledged usual practice, MSHA’s survey team did not use
tracer gas, despite being unable to confirm airflow in the perimeter cuts. MSHA
did not provide any reasoned explanation as to why it did not use tracer gas. Such
an explanation is necessary, especially where testimony establishes that it was
MSHA’s usual practice to use tracer gas where airflow could not be confirmed. At
the very least, MSHA should have used this acknowledged usual practice to back
up or confirm the findings of the smoke tests. This deviation meant that MSHA did
not consider an important factor, the use of tracer gas, when revoking the
mine’s ventilation plan. When such an aberration from usual practice in agency
action goes unexplained, it is arbitrary and capricious. Encino Motors, LLC
v. Navarro , 136 S.Ct. 2117, 2120 (2016) (citing FCC , 556 U.S. at
515). Consequently, MSHA’s unexplained departure from a usual practice was
arbitrary and capricious. [41]

Finally, as
noted above in Section III.A, MSHA did not properly consider differences in the
opinions and observations from the survey team and the contrary opinions and
observations from Knight Hawk’s representatives concerning the varied and
inconsistent results of the smoke tests. The 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. Tr. 52-54. This unique and
questionable practice resulted in disagreements among the survey team and from
Knight Hawk’s representatives, which Beiter actively suppressed, directing some
notes to be rewritten. Tr. 104, 299, 349-350.

Additionally, MSHA failed to
consider that the smoke tests provided varied and inconsistent results
regarding the direction and movement of airflow. As noted, Hasenstab credibly
testified that there was “[g]eneral uncertainty in regards to movement or no
movement.” Tr. 299-300. At times, the tests were not even capable of being
repeated. Tr. 561-62.

Even if the undersigned were to
overlook the aberrant use of unreliable smoke tests inside the perimeter cuts,
MSHA failed to consider the limitations placed on the survey team in conducting
the smoke tests, disagreements among the survey team and Knight Hawk
representatives concerning perceptible air movement in such cuts, and the
varied and inconsistent results of the survey. By not considering these
important factors, MSHA acted in an arbitrary and capricious manner. Motor
Vehicle Mfrs. , 463 U.S. at 43 (An agency action is arbitrary and capricious
where the agency “entirely failed to consider an important aspect of the
problem.”).

In short, MSHA revoked
a previously approved ventilation plan through results-oriented, unreliable,
and suspect investigation techniques that failed to consider several important aspects
of the problem to ensure the reliability of data and observations relied upon
and to ensure compliance with an important statutory limitation. MSHA failed to
consider the no-less-protection standard; the simple use of tracer gas to
validate or confirm the smoke tests; and the disagreements within the survey
team and from Knight Hawk’s representatives concerning the varied and
inconsistent results of the smoke tests. These failures demonstrate that MSHA
acted in an arbitrary and capricious manner in a unique and unprecedented
scenario to revoke a previously approved plan found suitable by four District 8
managers or acting district managers and by District 8 ventilation specialist
Pritchard, who inexplicably was never consulted about the revocation decision
or called as a rebuttal witness. Any one of these three failures is sufficient
to find the revocation of the ventilation plan arbitrary and capricious.

C.                
MSHA offered explanations counter to the evidence before it.

MSHA cited
regulations that had no support in the record to justify its revocation of the
mine’s ventilation plan. MSHA revoked the previously approved plan by technical
citation citing five major deficiencies that Knight Hawk allegedly failed to
address or include in a modified or revised plan submission. The Secretary
grounded the alleged deficiencies in mandatory standards set forth in 30 C.F.R.
§§ 75.334(b)(1); 75.334(c)(4); 75.364(a)(2)(iii) and (iv); 75.371(y), (z), and (bb);
and 75.372(b)(9). Of these regulations, only § 75.334(b)(1), discussed
above, deals with whether a ventilation plan is effective. The remainder of the
regulations pertains to the technical requirements of what must be in a written
ventilation plan and map prior to submission to MSHA for its consideration. Specifically,
five of the remaining seven regulations—§§ 75.334(c)(4); 75.371(y), (z), and
(bb); and 75.372(b)(9)—pertain to what the ventilation plan and map must
“specify” and what “information” the ventilation plan and map must contain
prior to submission for approval. It should be emphasized that these
regulations only pertain to what technical details must be included in a
submitted plan and map and not whether the submitted plan and map
constitute a suitable ventilation plan. In other words, these regulations
prescribe what information an operator must include in a ventilation plan and
map when submitting them for MSHA’s initial consideration, but they do not
speak to whether it is a suitable ventilation plan.

When MSHA
approved the ventilation plan in 2010, MSHA found that the plan and map were in
compliance with 30 C.F.R. § 75.370. G. Ex. 12 at 1. Under
§ 75.370, a “ventilation plan shall consist of two parts[:] the plan
content as prescribed in § 75.371[,] and the ventilation map with
information as prescribed in § 75.372.” As such, when a plan and map are found
in compliance with § 75.370, they are likewise found in compliance with
§ 75.371 and § 75.372. Five of the cited regulations that MSHA
alleged that Knight Hawk had violated—§§ 75.334(c)(4); 75.371(y), (z), and
(bb); and 75.372(b)(9)—are components of § 75.371 and § 75.372. In
2010, MSHA found that the ventilation plan and map were in compliance with
these five regulations concerning the required technical details. [42]

When MSHA revoked
the ventilation plan, nothing had changed in the written ventilation plan or map
from the 2010-approved version. Tr. 240-41. Other than the PEUG ventilation
survey, the Secretary offers no explanation as to why a plan found to include
the necessary information in 2010 was suddenly lacking in 2018. [43]
Furthermore, the Secretary offers no explanation why, even if the 2018 PEUG
ventilation survey were accepted at face value, it rendered the technical
details in the 2010 plan and maps improper for submission to MSHA for consideration.
In essence, MSHA has declared, without explanation, that the previously
approved ventilation plan and map are suddenly unacceptable even for an initial
submission for consideration by MSHA.

As noted above,
an agency must “examine the relevant data and articulate a satisfactory
explanation for its action.” FCC , 556 U.S. at 513 (quoting Motor
Vehicle Mfrs. , 463 U.S. at 43). Here, the Secretary offers no
explanation, satisfactory or otherwise, why the technical details of the 2010 written
ventilation plan did not satisfy the requirements of §§ 75.371 and 75.372
in 2018 when the same technical details did so in 2010. Consequently, MSHA
acted arbitrarily and capriciously and contrary to law when it determined that
Knight Hawk had violated these regulations.

The remaining
two regulations—§§ 75.364(a)(2)(iii) and 75.364(a)(2)(iv)—require that the
operator conduct weekly examinations of the ventilation system. Specifically,
§ 75.364(a)(2)(iii) requires that, at least every seven days, “[a]t least
one entry of each set of bleeder entries used as part of the bleeder system
. . . shall be traveled in its entirety.” Additionally, measurements
shall be performed during the weekly examination to determine methane and
oxygen levels as well as whether air is moving in the proper direction at EPs
as prescribed in the ventilation plan. [44] Section 75.364(a)(2)(iv)
provides that an operator may offer, “in lieu of the requirements of
[(a)(2)(iii)], an alternative method of evaluation” in a submitted ventilation
plan.

MSHA’s
determination that Knight Hawk violated § 75.364(a)(2)(iii) runs counter
to the evidence. As noted above, this regulation requires weekly examinations where
an examiner travels at least one bleeder entry of each set of entries, and for
evaluations of air quality and movement at EPs as identified in the ventilation
plan. Hasenstab identified the weekly route followed by an examiner to
determine the effectiveness of the bleeder system at the EPs. P. Ex. 30 at 9; Tr.
320-22; see also Tr. 504 (Hartsog). Knight Hawk’s expert, Hartsog, credibly
testified that “it would be an effective way of evaluating the system. It meets
the requirements in that it goes to the extremities of the system. And it
travels the entire perimeter of the bleeder area, of the bleeder system,
bleeder entries.” Tr. 505.

The undersigned
is persuaded by Hasenstab’s description of the weekly examinations. Tr. 320-22. [45]
Hasenstab testified that the weekly examination involved traveling along the
bleeder entries from EP to EP and checking air quality and direction at each EP.
Tr. 320-21; G. Ex. 13 at 9. Beiter’s report to Burns confirmed that “[t]he
required examination of the bleeder system included travel of bleeder entries
to evaluate its effectiveness” and that “[b]leeder entries were routinely
traveled in each block in which an [EP] was located and across the front of the
completed blocks.” G. Ex. 1 at 7. Consequently, the evidence clearly
demonstrates that the weekly examinations occurred and included travel of “[a]t
least one entry of each set of bleeder entries” to conduct the tests, meeting
the requirements of § 75.362(a)(2)(iii). MSHA again offered no explanation
as to why the weekly examinations themselves were inadequate under this
regulation. As such, MSHA acted in an arbitrary and capricious manner when finding
that Knight Hawk violated § 75.362(a)(2)(iii). Motor Vehicle Mfrs. ,
463 U.S. at 43.

Additionally,
although MSHA identified alleged deficiencies with the weekly examinations, none
of these alleged deficiencies are grounded in the regulations. First, Burns,
both in testimony and in his June 7 letter, identified the weekly examinations
as deficient because the plan did not

define[]
the proper air direction through individual “blocks” . . . . Definition
of the proper direction of airflow through bleeder entries and pillared areas,
as well as the EP locations, also is necessary for the mine examiner to
determine if air is moving in the proper direction when conducting tests during
the weekly examination.

G. Ex. 9 at 2. Setting aside for
the moment that MSHA, again without explanation, found fault with the written
ventilation plan deemed acceptable in 2010, MSHA rejected Knight Hawk’s offer
to cure the alleged deficiency with written statements. Id. The only
explanation for this rejection was that displaying the airflow with arrows on
the map itself was required by the plain language of the regulation. Tr. 204. Because
the Secretary relies on the plain language of the regulation, the Secretary’s interpretation
of the regulation does not get deference. Kisor v. Wilkie , 139 S.Ct.
2400, 2415 (2019) (“[A] court should not afford Auer deference unless
the regulation is genuinely ambiguous. If uncertainty does not exist, there is
no plausible reason for deference.” (citations omitted)); see also Christopher
v. SmithKline Beecham Corp. , 132 S. Ct. 2156, 2166-67 (2012) (holding that
“[d]eference is . . . unwarranted when there is reason to suspect that the
agency’s interpretation ‘does not reflect the agency’s fair and considered
judgement on the matter in question.’”). Looking to the plain language of
§ 75.372, there is no requirement as to how, or in what format, the
information must be provided on the ventilation map. Consequently, the
Secretary does not provide any basis for this requirement, and this is yet
another example of MSHA acting in an arbitrary and capricious manner to achieve
the desired result. Motor Vehicle Mfrs. , 463 U.S. at 43.

Second, MSHA also
alleged that the weekly examinations were deficient because

[t]he
specified means of evaluation of the worked-out area does not provide
sufficient information to determine the effectiveness of the bleeder system
including (a) whether air was moving in the proper direction through all
“blocks,” including the bleeder entries and pillared areas in each “block”; (b)
the means to reasonably assure ventilation of the extended-depth portions of
the pillared areas; or (c) the effectiveness of ventilation through the
worked-out area.

G. Ex. 11 at 3. None of these
requirements can be found in the cited regulation. The only requirement
in § 75.364(a)(2)(iii) is that “[a]t least one entry of each set of
bleeder entries used as part of the bleeder system . . . shall be
traveled in its entirety” and that the weekly examination will include tests
for air quality and movement. There is no requirement in
§ 75.364(a)(2)(iii) for additional tests outside of the EPs or the
addition of more EPs than are required in the approved ventilation plan. Based
on the language from the citation, MSHA created additional requirements that
have no basis in the regulation. Again, it should be emphasized that this
regulation pertains to whether Knight Hawk is conducting weekly examinations as
prescribed by the ventilation plan and maps in the first instance, not whether those
examinations revealed shortcomings in the ventilation plan. [46]

On this point,
Beiter testified that the evaluation was insufficient because “there were
places in the bleeder system in which airflow was not being controlled in a
manner that would allow that evaluation to take place.” Tr. 112-13. Even
assuming that Beiter were completely correct that there were portions of the
mine that did not have controlled airflow, this testimony goes to the results
of the weekly examinations, not to whether Knight Hawk was conducting the
weekly examinations in compliance with § 75.364(a)(2)(iii) in the first
instance. Even uncontrolled airflow, except in extreme cases, would not prevent
Knight Hawk from conducting adequate weekly examinations. To put it another way,
where § 75.364(a)(2)(iii) asks whether Knight Hawk conducted weekly exams
adequate to evaluate the bleeder system, Beiter faults Knight Hawk for the expected
results of that test. This is akin to faulting Knight Hawk for not taking a
test because, in MSHA’s view, Knight Hawk should fail that test. As this
regulation goes to whether Knight Hawk is conducting the proper examinations—not
what the result of that test may be—MSHA does not support this alleged
violation. [47] In short, it is a non
sequitur to allege that Knight Hawk failed to conduct weekly examinations
because “there were places in the bleeder system in which airflow was not being
controlled.” Tr. 112-13.

As noted above,
the law requires MSHA to offer a reasoned explanation when departing from its standard
course; “an agency changing its course must supply a reasoned analysis.” Motor
Vehicle Mfrs. , 463 U.S. at 57 (quoting Greater Boston
Television Corp. v. FCC , 444 F.2d 841, 852 (D.C. Cir. 1970). Here, the
Secretary offers no reasoned explanation why the additional deficiencies that
it grafted onto regulatory language are necessary under
§ 75.364(a)(2)(iii), or how Knight Hawk’s execution of the weekly
examinations runs afoul of that regulation. [48]

Turning to § 75.364(a)(2)(iv),
this regulation, by its plain language, only applies where an operator submits
an alternative weekly examination plan “in lieu of the requirements of”
§ 75.364(a)(2)(iii) in a ventilation plan. The evidence is clear that Knight
Hawk did not submit an alternative weekly examination plan in its
ventilation plan. G. Ex. 12 at 9. Consequently, MSHA’s reliance on this
regulation runs counter to the evidence. Motor Vehicle Mfrs. ,
463 U.S. at 43.

As a final matter,
insofar as the Secretary relies on PPL P13-V-12 as the impetus that changed the
substantive requirements for the submitted ventilation plan and maps, such reliance
is improper as PPL P13-V-12 did not go through proper notice-and-comment rulemaking.
As noted in the Findings of Fact, on December 30, 2013, after the approval of
the mine’s ventilation plan, MSHA, through Administrator Kevin Stricklin,
issued the policy “to clarify and improve the examination and evaluation of
bleeder systems by mine operators.” R. Ex. 13 at 1. PPL P13-V-12 states that
“[i]t is anticipated that District Managers would not suggest changes to the
relevant portions of existing approved ventilation plans absent conditions
affecting the safety or health of miners that arise following the issuance and
effective date of” the policy. Id. PPL P13-V-12 defines a bleeder system
to “include[] the area from which pillars are wholly or partially recovered,
bleeder entries, bleeder connectors, and all associated ventilation control devices
that control the air movement through the area.” Id. at 2.

Hartsog
credibly testified that PPL P13-V-12 changed the definition of a bleeder
system. Specifically, Hartsog testified that the policy includes as part of the
newly defined bleeder system “any pillar that’s left untouched
. . . . Commonly, we don’t refer to certain pillars next to the
gob or around the gob as being part of the bleeder system. It’s part of the
gob.” Tr. 513. Hartsog stated that perimeter cuts “are in the abandoned area. Once
those are mined, I would not expect them to be re-examined once left.” Tr. 480.
Hartsog also credibly testified that the policy redefined what constituted a
bleeder entry. He stated that the policy “defines bleeder entries as being any
entries that . . . are between or around blocks that have not been
second mined. Before this [policy] document came out, that was not the case.” Tr.
523.

PPL P13-V-12 made
substantive and definitional changes to § 75.300 dealing with bleeder
systems that lack the force of law purportedly used to justify the revocation
of Knight Hawk’s ventilation plan. It is the Secretary’s burden to
appropriately promulgate new proposed changes in substantive legal requirements
through proper notice-and-comment procedure. 30 U.S.C. § 811; see Alaska
Professional Hunters v. FAA , 177 F.3d 1030, 1034 (D.C. Cir. 1999) (“When
an agency has given its regulation a definitive interpretation, and later
significantly revises that interpretation, the agency has in effect amended its
rule, something it may not accomplish without notice and comment.”); Drummond
Company, Inc. , 14 FMSHRC 695 (1992) (affirming the judge’s holding
that the Secretary was required to promulgate a policy program letter through
notice-and-comment rulemaking and concluding that the policy, as an invalidly
issued substantive rule, can be accorded no legal weight or effect). Further,
the Secretary failed to set forth any convincing reasons upon which policy
changes may be exempt from notice-and-comment due to good cause. 5 U.S.C.
§ 553(b)(3)(B). Therefore, PPL P13-V-12 cannot justify changing the
requirements of the submitted ventilation plan and maps.

The undersigned
finds unpersuasive the Secretary’s argument that, even apart from the
measurements taken within the perimeter cuts, the ventilation survey indicated
that Knight Hawk had to revise its ventilation plan. Specifically, the
Secretary contends that “[t]he direction of air movement in adjacent bleeder
entries was not always consistent within a block[;] at several locations air
moved in opposing directions across an individual bleeder entry, and in
portions o[f] other bleeder entries there was no perceptible air movement at
all.” Sec’y Post-Hearing Br. at 48-49. This argument relies on the definition
of “bleeder entry” from PPL P13-V-12. When applying the pre-PPL P13-V-12 definition,
the pillars that have not been second mined and are not adjacent to the
perimeter cuts are not part of the bleeder system. Tr. 513. Consequently,
applying the pre-PPL P13-V-12 definitions, there is a single bleeder entry and
the ventilation survey found consistent air movement through the bleeder entry
and through the area adjacent to the perimeter cuts. G. Ex. 18-1. The
Secretary’s unpersuasive argument demonstrates exactly how PPL P13-V-12 changed
the definition of a bleeder entry and the substantive consequences of that
change.

In summary, MSHA
acted in an arbitrary and capricious manner under Motor Vehicles Mfrs. ,
463 U.S. at 43. First, MSHA relied on factors—the unreliable smoke tests
within the perimeter cuts and a bias against perimeter mining—that were not
intended to be considered. Second, MSHA entirely failed to consider important aspects
of the revocation issue—the no-less-protection standard; using tracer gas; and
the disagreements within the survey team and from Knight Hawk representatives
concerning the varied and inconsistent results of the smoke tests. Finally MSHA
either offered an explanation that ran counter to the evidence before it or
failed to offer any explanation to support its decision that the previously
approved plan no longer satisfies §§ 75.370, 75.371, and 75.372.

IV.
CONCLUSION

For the foregoing
reasons, the technical citation is vacated, and the previously approved
ventilation plan is reinstated.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Travis Gosselin

Office of the Solicitor

U.S. Department of Labor

230 S. Dearborn Street

Room 844

Chicago, IL 60604

R. Henry Moore

Fisher & Philips, LLP

301 Grant Street

Suite 4300

One Oxford Centre

Pittsburgh, PA 15219

/ztb

[1] Although Mr. Moore was
with Jackson Kelly, PLLC, when the contest was filed, he is currently at Fisher
Phillips LLP, Pittsburgh, PA.

[2] In this decision, “Tr.”
refers to the hearing transcript, “P. Ex. #” refers to the Contestant’s
exhibits, and “G. Ex. #” refers to the Respondent’s exhibits. P. Exs. 13-28,
30, and 34-40, and G. Exs. 1-12 and 14-18, were received into evidence. Tr.
281-82.

[3] In evaluating testimony,
the undersigned has taken into consideration the nature of the questioning and
testimony given in response, the demeanor of the witnesses, their evasiveness
or forthrightness, their interests in this matter, the inherent probability of
their testimony in light of other events, corroboration or lack of
corroboration for their testimony, their experience and credentials, and their
consistency or lack of consistency vis-à-vis their own testimony and the
testimony of other witnesses.

[4] The undersigned denied
the Secretary’s Motion in Limine. Order Denying the Secretary’s Motion in
Limine, 41 FMSHRC 217 (Mar. 2019) (ALJ).

[5] In each block, a single
perimeter cut was bolted. Tr. 77.

[6] Hasenstab testified that
second mining is also known as retreat mining. Tr. 339; see also , tr. at
337 (“I agree that perimeter mining is second mining.”).

[7] If perimeter cuts measure
more than 20 feet from the nearest row of permanent roof supports, they are
considered extended-depth cuts. Tr. 75.

[8] The Dictionary of
Mining, Minerals, and Related Terms (2d ed. 1997) defines “pillar” as “a
column of coal . . . left to support the overlying strata or hanging
wall in a mine.” Hasenstab credibly testified that the areas between the blocks
were a pillar. Tr. 334-35 (“[W]e all have agreed [it] is a pillar, albeit a
very large pillar, and we are partially recovering from that pillar.”).

[9] The Dictionary of
Mining, Minerals, and Related Terms (2d ed. 1997) defines “subsidence” as
“[t]he sudden sinking or gradual downward settling of the Earth’s surface with
little or no horizontal motion. . . . Subsidence may be caused
. . . by human activity such as subsurface mining or the pumping of
oil or groundwater.”

[10] The parties presented
differing and contradictory evidence as to the precise definition of a room. Compare
G. Ex. 1 at 5 (describing multiple rooms within a single block) with Tr.
357 (“A block is a room.”). However, the precise definition of a room is not
material to this Decision.

[11] Although Dennis Beiter,
Respondent’s expert ( infra note 16), testified that there were up to
five bleeder entries into a room, the undersigned does not credit this
testimony. Tr. 61-63. Beiter equivocated and was evasive on this point, stating
that some of what he identified as bleeder entries “are not necessarily called
bleeder entries, but they function as bleeder entries.” Tr. at 61. Beiter’s
testimony also relies on the definition of bleeder entry from Policy P13-V-12,
discussed further below in Section III.C. As explained below, Policy P13-V-12
improperly made a substantive change to regulations. Beiter’s reliance on
Policy P13-V-12 further indicates the unreliability of Beiter’s testimony on
this point.  

[12] Eslinger worked at MSHA
or its predecessor agency for 38 years. Based on his experience as an MSHA
ventilation supervisor, registered professional engineer, committee member that
rewrote subpart D (the §75.300 series) of the MSHA ventilation regulations from
1983 through the final rule in 1996, Eslinger was qualified, absent objection,
as an expert witness in mine ventilation and regulation for the Contestant. Tr.
399-410.

[13] Hartsog was qualified,
absent objection, as an expert witness in mine ventilation for the Contestant
based on his experience and education, including a Master of Science in mine
engineering with a thesis in mine ventilation, his status as a registered
professional engineer in West Virginia, and his experience teaching classes in
mine ventilation, including bleeder systems, for groups such as state mine
inspectors and engineers. Tr. 458-471; see also P. Ex. 36 (resume for
Hartsog).

[14] Prior to working for
District 8, Burns had never worked in or inspected any mines that had perimeter
mining. Tr. 219.

[15] After the ventilation
survey at PEUG, MSHA conducted a ventilation survey at Viper Mine. Tr. 168,
212, 215. Burns testified that he was diligently working with Viper in order to
approve 40-foot cuts based on good-faith negotiations. Tr. 216. However, the
Secretary never provided evidence that Viper presented a situation different
than Gateway North or PEUG to the point that it could satisfy District 8’s ventilation
requirements for extended-cut perimeter mining.

[16] Through his experience,
including earning a Bachelor of Science in mining engineering, working as a
mining engineer for MSHA, and overseeing underground ventilation in a mine,
Beiter qualified as an expert in underground mine ventilation for the
Respondent. Tr. 32.

[17] The technical support
group provides consultative support for MSHA’s coal mine safety and health
branch and metal and nonmetal safety and health branch.

[18] The Dictionary of
Mining, Minerals, and Related Terms (2d ed. 1997) defines “spontaneous combustion”
as “[t]he heating and slow combustion of coal and coaly materials initiated by
the absorption of oxygen.”

[19] The bleeder entries
referenced were those redefined in Policy P13-V-12. G. Ex. 13 at 3-4.

[20] MSHA later removed this
alleged deficiency as a violation of a mandatory regulation and acknowledged it
as prudent, but not mandatory. G. Ex. 9.

[21] MSHA originally granted
Knight Hawk a two-week grace period for abatement, beginning on May 3, 2018. Although
the record does not indicate that MSHA explicitly granted Knight Hawk
extensions, MSHA did not issue the technical citation until November 14, 2018.

[22] As noted, the
undersigned rejects this pre-hearing position. As found above, perimeter mining
involves second mining and pillar recovery. Consequently, perimeter mining at
the mine squarely falls under § 75.334(b)(1) and its requirements that
“[d]uring pillar recovery a bleeder system shall be used.”

[23] Hasenstab testified that
sawtooth cutting involved making perimeter cuts where two of them intersected
at the back end, although the design and layout would be much different that
holing perimeter cuts together. Tr. 359.

[24]
Former District 8 ventilation supervisor Eslinger testified based on extensive
experience with numerous district managers that a district manager would
consult with his own ventilation specialists when contemplating revocation of a
ventilation plan, and could not recall any instance in which MSHA “just yanked
a plan on somebody, disapproved a plan.” Tr. 424-26. When asked by the
undersigned whether a district manager ever consulted with him about revoking a
perimeter mining plan, Eslinger testified:

When
Robert Phillips became the district manager in about 2007, he made some
comments about perimeter mining. And he expressed his desire to get rid [of]
and eliminate perimeter mining. He brought up some issues. I responded to some
of the issues. The roof control supervisor responded to some of the issues. We
had some discussions. The plans for perimeter mining were not revoked while I
was the supervisor. We had some new mines going in, and they had a heck of the
time trying to get perimeter mining approved, but we did not revoke any of the
plans for the mines that had perimeter mining in them.

Tr. 425.

[25] When MSHA first issued
the citation, the citation number used was already in use for another
violation, and MSHA modified the original citation to change the citation
number. G. Ex. 11; Tr. 267.

[26]
Q.     What changed, if anything, between approval of the plan and revocation?

A.     We done our investigation and found out that areas
of the mine was not being ventilated. And so the plan needed to address it at
that time. Before we done the investigation in 2018 for them and 2017 for
Prairie Eagle. I don't think we had ever done any kind of same type of
ventilation survey on perimeter mining. When I got there in 2015, and this was
like two months after I had been there, maybe less than two months, we approved
the plan. Yeah, I knew—I had questions about it, about perimeter mining because
I had never seen it before. I was used to from eastern Kentucky, full pillar
extraction or something, but at that time, I did not know enough about this to
know exactly how I guess the ventilation system and everything would work or
where it would not be working. So when we done the ventilation survey starting
at Gateway North, we found out a lot. I went through this and developing—not
developing concerns, but looking at concerns we found that yes there is areas
that’s not ventilated. That’s what happened between when this was approved
and when we revoked.

Tr. 240-41 (emphasis added). The
undersigned finds Burns’ verbal leak that they were “developing . . . concerns”
to be telling. This verbal leak adds credence to the inference that Burns’
concerns arose out of a preconception of what he expected to find at PEUG after
Gateway North, rather than treating PEUG independently, and to the inference
that MSHA wanted to get rid of perimeter mining.

[27] “A ventilation system
and methane and dust control plan and revisions thereof suitable to the
conditions and the mining system of the coal mine and approved by the Secretary
shall be adopted by the operator and set out in printed form within ninety days
after the operative date of this title. The plan shall show the type and
location of mechanical ventilation equipment installed and operated in the
mine, such additional or improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working face, and such other
information as the Secretary may require. Such plan shall be reviewed by the
operator and the Secretary at least every six months.” 30 U.S.C.
§ 863(o).

[28] Although Zeigler
did not explicitly adopt the arbitrary and capricious standard, Zeigler
began the path that ultimately led to the application of the arbitrary and
capricious standard of review seen in Mach Mining, LLC v. MSHA , 728 F.3d
643, 657-58 (7th Cir. 2013) ( Mach Mining II ), aff’ing , Mach
Mining , 34 FMSHRC 1784 (Aug. 2012) ( Mach Mining I ).

[29] I see the same flaws
inherent in Martin v. Occupational Health & Review Commission , 499 US
144, 152-53 (1991) (“[T]he Secretary is more likely to develop the expertise
relevant to assessing the effect of particular regulatory interpretation.”).

[30]
Accordingly, the judge’s decision to apply the arbitrary and capricious
standard of review was affirmed under Pennsylvania Electric Co., 12
FMSHRC 1652 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d
Cir. 1992).

[31]
Generally, under the arbitrary and capricious standard of review, a district
manager’s decision will be set aside only where MSHA “relied on factors which
Congress [had] not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency
expertise.” Signal Peak , 40 FMSHRC at 1065, citing Motor
Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto Ins. Co. ,
463 U.S. 29, 43 (1983).

[32] Commissioners Young and
Althen declined to characterize their view on the Secretary’s burden of proof
as a “standard of review,” stating that “the outcome of a suitability
determination in this case does not depend upon a didactic characterization of
the standard of review as beyond a preponderance of the evidence or abuse of
discretion.” Id. at 1079.

[33] But see Mach Mining
II , 728 F.3d at 658 n.21, cursorily noting that further explanation
regarding departure from precedent by the Commission was unnecessary given the
court’s conclusion that the statute’s regulatory scheme requires a more
deferential standard of review. In doing so, however, the court in Mach Mining
II failed to require the Commission to give any reasoned explanation as to
its change in interpretation. FCC v. Fox Television Stations, Inc. ,
556 U.S. 502, 515 (2009) ( FCC ) (“An agency may not . . .
depart from a prior policy sub silentio or simply disregard rules that
are still on the books. And of course the agency must show that there are good
reasons for the new policy.”). I also reject the notion that the more
deferential standard of review is required, rather than simply permissible,
under the statute. As noted above, the court in Mach Mining II , based
this on the assumption that “[t]o permit the Commission to substitute its view
for that of the Secretary simply would displace the expertise of the
Secretary,” an assumption that discounts the expertise of the Commission
itself. Mach Mining II , 728 F.3d at 658.

[34] Chairman Marco M.
Rajkovich, Jr. and Commissioners William I. Althen and Arthur R. Traynor, III
were sworn into office on Monday, March 25, 2019. They join Commissioners Mary
Lu Jordan and Michael G. Young to form a new five-member Commission.

[35] See e.g., Mach Mining
II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc. v. Sec’y
of Labor , 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“As we have long held, an
agency changing its course must supply a reasoned analysis indicating that
prior policies and standards are being deliberately changed, not casually
ignored.”).

[36] See, e.g. , John
Deklewa & Sons , 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843
F.2d 770, 780-81 (3d Cir. 1988), cert. denied, 488 U.S. 889 (1988)
(overruling previous Board interpretation of section 8(f) of the National Labor
Relations Act despite the Supreme Court’s affirmance of the Board’s previous
interpretation in NLRB v. Iron Workers , 434 U.S. 35 (1978)).

[37] See e.g., Mach Mining
II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc. v. Sec’y
of Labor , 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[a]s we have long held, an
agency changing its course must supply a reasoned analysis indicating that
prior policies and standards are being deliberately changed, not casually
ignored.”) (internal citations omitted).

[38] See, e.g. , John
Deklewa & Sons , 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843
F.2d 770, 780-81 (3d Cir. 1988), cert. denied, 488 U.S. 889 (1988)
(overruling previous Board interpretation of section 8(f) of the National Labor
Relations Act despite the Supreme Court’s affirmance of the Board’s previous
interpretation in NLRB v. Iron Workers , 434 U.S. 35 (1978)).

[39] While § 75.334(b)(1)
applies “[d]uring pillar recovery,” § 75.334(b)(2) applies “[a]fter pillar
recovery.” Although both arguably apply to the mine, the Citation and the
Secretary’s theory of the case—as supported by testimony (Tr. 190, 194) and the
Secretary’s briefs—rely exclusively on § 75.334(b)(1). See G. Ex.

11. Therefore, this Decision will only consider the alleged violation of
    § 75.334(b)(1) and not § 75.334(a)(1) or (b)(2).

[40] MSHA’s heavy reliance on
the smoke tests in the perimeter cuts alone is sufficient to find that the
revocation of the ventilation plan was arbitrary and capricious.

[41] Due to MSHA’s heavy
reliance on a ventilation survey that did not use tracer gas, this deviation
from an acknowledged usual practice alone is sufficient to find that the revocation
of the ventilation plan was arbitrary and capricious.

[42] Although 30 C.F.R.
§75.370 does not explicitly reference 30 C.F.R. § 334(c)(4), the
requirements of § 334(c)(4)—that a ventilation plan specify “[t]he
location of ventilating devices”—are the same as those in 30 C.F.R.
§ 75.371(bb), which does incorporate § 334(c)(4) by reference.

[43] It should be noted that
MSHA cited Knight Hawk for operating without an approved ventilation plan, not
for failing to follow an approved ventilation plan. As such, the findings of
the ventilation survey should have no effect on whether the ventilation plan or
map complied with § 75.371 or § 75.372.

[44] Section
75.362(a)(2)(iii) uses the term “measurement point locations” rather than
“evaluation points.”

[45] The Secretary offered no
evidence contrary to Hasenstab’s description.

[46] Although the Secretary
never presents this argument, the best argument in support of the Secretary’s
position is that, if Knight Hawk had been conducting proper weekly
examinations, those examinations should have demonstrated that the ventilation
plan was not suitable based on the results of the ventilation survey. Therefore,
this argument continues, since the weekly examinations did not reveal the
plan’s unsuitability, Knight Hawk must not have been performing proper weekly
examinations. Even beyond the reasons stated above, this argument fails because
the improperly conducted ventilation survey lies at the heart of this argument.
Its reasoning fails once the keystone of the ventilation survey is found
flawed.

[47] Burns testified that
“[w]e did not feel the bleeder system was being ventilated. We did not feel it
was being adequately examined.” Tr. 171. He did not, however, provide any
concrete support as to why the weekly examinations themselves were inadequate,
nor did the Secretary proffer any citations to support such conclusion. Rather,
the Secretary only proffers results from an unreliable and suspect ventilation
survey in areas where examiners would not travel.

[48] Like the unreliable
smoke tests, this appears to be yet another example where MSHA created
additional requirements for extended-cut perimeter mining that were not
required for other forms of second mining.