In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3598
MACH MINING, LLC,
Petitioner,
v.
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Nos. LAKE 2010‐1‐R, LAKE 2010‐2‐R, LAKE 2010‐714.
ARGUED APRIL 15, 2013 — DECIDED AUGUST 26, 2013
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Mach Mining, LLC (“Mach”) operates
the Mach No. 1 Mine (the “Mine”), an underground coal mine,
near Johnston City, Illinois. Mach mines the coal using the
“longwall” method, which involves preparing “panels” of coal
for mining by drilling a series of tunnels to provide for
ventilation, travel routes and access to the working areas of the
mine. Once a panel is ready for mining, the longwall machine
2 No. 12‐3598
moves along the panel “shearing” the coal from the wall (much
like a meat slicer in a deli) and using a conveyor belt to
transport the sheared coal out of the mine. The Mine consists
of five panels, at least some of which are over three miles long.
As an underground coal mine operator, Mach is subject to
a significant number of safety regulations, including the
requirement that it adopt a ventilation plan “suitable to the
conditions and the mining system of the coal mine and
approved by the Secretary” of Labor. 30 U.S.C. § 863(o). A
mine operator obtains approval by submitting a written plan
to, and usually engaging in discussions with, district managers
in the Mine Safety and Health Administration (“MSHA”).
Mach’s ventilation plan utilizes a “push‐pull” system which
combines blowing large volumes of fresh air into the mine with
an exhaust system that pulls out air containing methane, coal
dust and other particles. Mach evaluates the effectiveness of its
system by setting up monitoring points throughout the mine,
including at the longwall face and at the top of the ventilation
shaft. An MSHA district manager approved this ventilation
system for Panels 1 and 2, but refused to grant approval when
Mach proposed the same system for Panel 3. Over the course
of eight months, Mach and MSHA negotiated approval of the
plan for Panel 3. The administrative law judge (“ALJ”) found
that the negotiations “included telephone calls, emails, letters
and meetings, at both the district and national level.” Mach
Mining, LLC v. Sec’y of Labor, 32 FMSHRC 149, 151 (2010).
MSHA continued to withhold approval of Mach’s ventila‐
tion plan for Panel 3, and Mach sought administrative review.
Although the mining statutes establish a formal procedure for
obtaining administrative and judicial review of a citation for
No. 12‐3598 3
failure to observe a mandatory mine safety or health standard,
there is no explicit statutory process for obtaining review of a
district manager’s refusal to approve a ventilation plan.
Instead, in order to obtain review, mine operators follow a
procedure outlined in the MSHA policy manual. Following
that procedure,1 Mach notified MSHA that it intended to
operate without an approved ventilation plan for the purpose
of obtaining administrative review. MSHA then issued two
citations for “technical violations” which Mach appealed to the
Federal Mine Safety and Health Review Commission (the
“Commission”).2
At a hearing, an ALJ for the Commission determined that
the Secretary had the burden of proving that the district
manager was not arbitrary and capricious in refusing to
approve Mach’s ventilation plan. The ALJ thus refused to
consider additional evidence tendered by Mach that had not
been presented to the district manager during informal
negotiations. Based on the record before her, the ALJ deter‐
mined that the district manager’s refusal to approve the
ventilation plan was not arbitrary and capricious.
1
Program Policy Manual, Vol. V ‐ Coal Mines, MSHA, 3‐5 (June 28, 2013),
http://www.msha.gov/REGS/COMPLIAN/PPM/PDFVersion/PPM%20Vo
l%20V.pdf.
2
The Commission is an independent adjudicative agency created by the
Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No.
95‐164, 91 Stat. 1290 (1977) (codified as amended at 30 U.S.C. §§ 801‐878)
(the “1977 Act”). It provides administrative trial and appellate review of
legal disputes arising under the Act. See 30 U.S.C. §§ 815(d), 823(d). We
discuss the Commission’s role in more detail infra at 12‐14.
4 No. 12‐3598
A divided panel of the Commission affirmed the ALJ’s
decision.3 As to the proper standard of review, three commis‐
3
The parties discovered and cured a procedural defect while the case was
pending before the Commission. Generally, when the Secretary issues a
citation, he provides the mine operator with notice of the citation and later
separately notifies the mine operator of the amount of the proposed
penalty. See 30 U.S.C. § 815(a). If a mine operator contests a citation, it must
separately contest the penalty if it desires review of the amount of the
penalty. See 29 C.F.R. §§ 2700.21(a), 2700.26. Despite the thirty‐day deadline
for contesting a citation, a mine operator has the option to wait to contest
the citation until after it receives notice of the proposed penalty because it
may challenge the fact of the violation during proceedings on the amount
of the penalty. Id. § 2700.21(b); United Mine Workers of America, ex rel. Local
1248, Dist. 2 v. Maple Creek Mining, Inc., 29 FMSHRC 583, 594 (2007) (quoting
Sec’y of Labor v. Quinland Coals, Inc., 9 FMSHRC 1614, 1620‐21 & n.9 (1987)).
If a mine operator contests the citation and later pays the proposed penalty,
the mine operator is deemed to have admitted the fact of the violation, the
payment becomes a final order of the Commission, and the party cannot
continue to contest the citation. Secʹy of Labor v. IO Coal Co., 31 FMSHRC
1346, 1354 (2009); Sec’y of Labor v. Old Ben Coal Co., 7 FMSHRC 205, 209
(1985) (“[T]he fact of violation cannot continue to be contested once the
penalty proposed for the violation has been paid.”).
Here, the Secretary issued the citations on September 29, 2009, and
Mach contested them on October 1, 2009. On November 4, 2009, the
Secretary notified Mach of the proposed penalty and, unbeknownst to the
parties’ attorneys, Mach paid the penalty by check on November 30, 2009.
The Secretary discovered the payment after the ALJ had issued her decision
and while the matter was pending before the Commission itself. The
Commission granted the parties’ request to hold the appeal in abeyance
while Mach requested relief from the final order that resulted from the
inadvertent payment. The Commission granted relief from the final order;
the Secretary filed a penalty assessment; Mach contested the penalty; the
ALJ reissued her order; Mach sought review before the Commission. The
(continued...)
No. 12‐3598 5
sioners held that the ALJ was correct in considering only
whether the district manager’s decision was arbitrary and
capricious. Sec’y of Labor v. Mach Mining, LLC, 34 FMSHRC
1784, 1790 (2012). They relied on language in the Mine Act that
suggests that the Secretary has discretion in deciding whether
to approve a ventilation plan, id. at 1791, and noted that the
Commission had applied an arbitrary and capricious standard
in reviewing denial of emergency response plans, id. at 1792.4
Two dissenting commissioners believed that a more
plenary review was required. They cited prior Commission
decisions in which the ALJ independently had weighed
evidence and required the Secretary to show by a preponder‐
ance of the evidence that the operator’s proposed ventilation
plan was unsuitable to the mine and that the Secretary’s own
plan was suitable. Id. at 1811 (citing Sec’y of Labor v. Peabody
Coal Co., 18 FMSHRC 686, 690‐91 (1996); Sec’y of Labor v.
Peabody Coal Co., 15 FMSHRC 381, 388 (1993)). These commis‐
sioners argued that the Commission should not change the
burden and standard for reviewing ventilation plan disputes
without a reasoned explanation. They also suggested that
emergency response plans have a different standard of review
3
(...continued)
Commission then consolidated the new appeal with the appeal that was
held in abeyance.
4
See 30 U.S.C. § 876(b)(2)(C); Sec’y of Labor v. Twentymile Coal Co., 30
FMSHRC 736, 749, 777‐78 (2008) (applying an arbitrary and capricious
standard of review to the Secretary’s refusal to approve an emergency
response plan required by 30 U.S.C. § 876(b)(2)); Sec’y of Labor v. Emerald
Coal Res., LP, 29 FMSHRC 956, 965‐66 (2007) (same).
6 No. 12‐3598
because the process for approving such plans is set forth by 30
U.S.C. § 876, which does not apply to ventilation plans. Id. at
1812‐13.5
On the merits, the majority of the Commissioners held that
the district manager did not abuse his discretion in refusing to
approve the various aspects of Mach’s ventilation plan. Id. at
1809.6 Because the dissenting Commissioners believed that the
ALJ applied the wrong standard, they did not address the
merits other than to note that the ALJ may have reached a
different conclusion had she applied the preponderance of the
evidence standard. Id. at 1813‐14.
Mach filed a timely petition for review to this court. It
argues that it had a right to a de novo hearing on the merits
before the ALJ and that the ALJ should not have applied the
arbitrary and capricious standard. It also maintains that the
ALJ erred by excluding or discounting certain evidence and
5
All five commissioners agreed that the ALJ did not abuse her discretion
in excluding evidence that had not been presented to the district manager
prior to the date of the technical violation. The majority opinion held that
the ALJ did not abuse her discretion in excluding evidence related to other
mine plans because the district manager must decide what is suitable to
Mach’s mine, and Mach’s unique system makes comparison to other
ventilation plans of limited value. Sec’y of Labor v. Mach Mining, LLC, 34
FMSHRC 1784, 1807 (2012). The majority also noted that the ALJ did not
wholly exclude the evidence on other mine ventilation plans because she
had allowed “witnesses to rely upon their experiences with other mines.”
Id. at 1808.
6
The majority remanded one issue for further consideration by the ALJ. Id.
at 1798. On remand, the parties stipulated that the remanded issue was
moot, and the Commission denied Mach’s petition for further review.
No. 12‐3598 7
that the ALJ’s factual findings are not supported by substantial
evidence.
We have jurisdiction under 30 U.S.C. § 816(a)(1). For the
reasons set forth in this opinion, we deny the petition.
I
DISCUSSION
A.
As this case comes to us, the major point of contention
between the parties is whether the Commission, the authority
charged with adjudicating citations issued by the Secretary
through MSHA, should review deferentially the Secretary’s
refusal to approve a ventilation plan. Stated more precisely, or
at least more practically, when the Secretary refuses to approve
a ventilation plan, is the mine operator entitled to a de novo
hearing before the Commission, or must the Commission defer
to the Secretary’s decision on the record assembled by the
district manager and reverse that determination only if the
Secretary fails to establish that the decision was not arbitrary
and capricious?
In Steadman v. Securities & Exchange Commission, 450 U.S. 91,
95 (1981), the Supreme Court noted that, when faced with the
task of ascertaining the applicable degree of proof, a court first
must ascertain whether Congress has spoken on the issue. If
Congress has spoken, that is, of course, the end of the matter.
If Congress has not spoken, courts must fashion the applicable
standard. In undertaking such a task, however, we must
choose a standard compatible with the congressional policies
8 No. 12‐3598
articulated in the general legislative scheme and choose a
standard that best reflects the values and choices that Congress
has identified. See id. at 97‐102 (examining the language and
history of section 7(c) of the Administrative Procedure Act
(“APA”) to determine what standard of proof Congress
intended to be applied). We now embark on that analytical
journey.
1.
Mach submits that the question before us requires a
straightforward application of the cardinal rule of statutory
interpretation: Courts must adhere to the plain meaning of the
statutory language. Noting that the Secretary’s refusal comes
before the Commission as the adjudication of a citation, albeit
a citation for a “technical violation,” Mach submits that every
proceeding to review a citation, including citations for
“technical violations,” is an adjudicative proceeding that must
be conducted in accordance with section 554 of the APA. See 30
U.S.C. § 815(d). In Mach’s view, those procedures require the
exercise of de novo review of the Secretary’s judgment. It notes
that, in Steadman, 450 U.S. at 102, the Supreme Court held that
the standard of proof that applies in hearings governed by
section 554 of the APA is preponderance of evidence.7
7
Steadman v. Securities & Exchange Commission, 450 U.S. 91, 102 (1981),
specifically held that section 7(c) of the APA established a “traditional
preponderance‐of‐the‐evidence standard.” Section 7(c) of the APA was
codified at 5 U.S.C. § 556(d) and applies to adjudications under section 554.
See 5 U.S.C. § 556(a).
No. 12‐3598 9
Mach is correct in stating that our starting point in analyz‐
ing the question before us must be the plain wording of the
statute enacted by Congress. However, we cannot apply this
rule to selected words divorced from the context in which they
appear. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 132‐33 (2000) (“The meaning—or ambiguity—of certain
words or phrases may only become evident when placed in
context. It is a ‘fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.’”
(citation omitted) (quoting Davis v. Michigan Dep’t of Treasury,
489 U.S. 803, 809 (1989)); Zeigler Coal Co. v. Kleppe, 536 F.2d 398,
405 (D.C. Cir. 1976) (examining the Federal Coal Mine Health
and Safety Act of 1969 “[o]n the whole” to determine whether
adopted and approved ventilation plans should be enforced as
mandatory standards). Our ultimate objective must be to give
effect to the congressional intent embodied in the entire statute.
We therefore turn to an examination of the overall text and
structure of the statute to ascertain its intent.
Examination of the text and the structure reveals that the
regulation of mining industry practices has been committed by
Congress to a bifurcated structure. In the simplest of terms, the
statutory scheme contemplates that the Secretary sets manda‐
tory health and safety standards, either through the formal
agency rulemaking process, 30 U.S.C. § 811, or through plans
submitted by industry participants for approval, id. § 862(a)
(roof plans); id. § 863(o) (ventilation plans); id. § 875 (emer‐
gency shelter plans); id. § 876(b)(2)(C) (emergency response
plans); see also Zeigler Coal Co., 536 F.2d at 409 (holding that the
“requirements of duly adopted ventilation plans generally are
10 No. 12‐3598
[as] enforceable” as other mandatory standards (footnote
omitted)). The Secretary also must enforce rules and standards
once they are promulgated or approved. 30 U.S.C. §§ 814‐815.
By contrast, the Commission performs an adjudicative role,
principally the adjudication of citations issued by the Secretary.
Id. §§ 815(d), 823(d). We now examine each of these roles in
more detail.
First, with respect to formal rulemaking, the Mine Act
authorizes and directs the Secretary to “develop, promulgate,
and revise as may be appropriate, improved mandatory health
or safety standards for the protection of life and prevention of
injuries in coal or other mines.” Id. § 811(a). The Secretary also
is authorized to grant exceptions to mine operators who
request a modified standard. Id. § 811(c). Before granting an
exception, however, the Secretary must determine that the
proposed modified standard would be just as safe as the
mandatory standards, and must publish notice and provide
opportunity for a public hearing on the matter. Id.8 It is well
8
Section 811(c) provides:
Upon petition by the operator or the representative of miners,
the Secretary may modify the application of any mandatory safety
standard to a coal or other mine if the Secretary determines that an
alternative method of achieving the result of such standard exists
which will at all times guarantee no less than the same measure of
protection afforded the miners of such mine by such standard, or
that the application of such standard to such mine will result in a
diminution of safety to the miners in such mine. Upon receipt of
such petition the Secretary shall publish notice thereof and give
notice to the operator or the representative of miners in the affected
(continued...)
No. 12‐3598 11
established that the exercise of such rulemaking authority is
subject to deferential review. See, e.g., Intʹl Union, United Mine
Workers of America v. Fed. Mine Safety & Health Admin., 920 F.2d
960, 964, 966‐67 (D.C. Cir. 1990) (holding that the Secretary was
entitled to deference when determining whether to alter
mandatory standards, but remanding because the Secretary
failed to explain adequately his reasoning).
In certain areas of mine safety, such as roofing and ventila‐
tion systems, Congress recognized that miner safety could be
addressed effectively only in a mine‐specific context. S. Rep.
No. 95‐181, at 25 (1977), reprinted in 1977 U.S.C.C.A.N. 3401,
3425 (“Such individually tailored plans, with a nucleus of
commonly accepted practices, are the best method of regulat‐
ing such complex and potentially multifaceted problems as
ventilation, roof control and the like.”). The statutory scheme
therefore requires that, in these areas, individual
8
(...continued)
mine, as appropriate, and shall cause such investigation to be made
as he deems appropriate. Such investigation shall provide an
opportunity for a public hearing at the request of such operator or
representative or other interested party, to enable the operator or
the representative of miners in such mine or other interested party
to present information relating to the modification of such stan‐
dard. Before granting any exception to a mandatory safety stan‐
dard, the findings of the Secretary or his authorized representative
shall be made public and shall be available to the representative of
the miners at the affected mine. The Secretary shall issue a decision
incorporating his findings of fact therein, and send a copy thereof
to the operator or the representative of the miners, as appropriate.
Any such hearing shall be of record and shall be subject to section
554 of Title 5.
12 No. 12‐3598
mine operators develop mine‐specific plans, potentially
containing additional health and safety requirements, and
submit them to the Secretary’s delegate for approval before
implementation. 30 U.S.C. §§ 862(a) (roof plans), 863(o)
(ventilation plans).
Finally, the Secretary has enforcement authority and can
issue a citation when he “or his authorized representative
believes that an operator of a coal or other mine subject to this
chapter has violated this chapter, or any mandatory health or
safety standard.” Id. § 814(a). The Secretary is further
authorized to issue an order requiring the mine operator to
withdraw persons from the mine if, in any ninety‐day period,
he finds two violations that were “caused by an unwarrantable
failure” to comply with the mandatory standards and which
“could significantly and substantially contribute” to a safety or
health hazard. Id. § 814(d).
In contrast to the Secretary’s duties, adjudication of
citations was entrusted by Congress to the Commission. An
operator may choose not to contest a citation, in which case the
citation is deemed a final order of the Commission thirty days
after receipt. Id. § 815(a). Alternatively, an operator may choose
to contest a citation, in which case the operator additionally
may request a hearing for temporary relief under § 815(b)(2)
prior to full review on the merits. When looking at the merits,
the Commission shall afford an opportunity for a
hearing (in accordance with section 554 of Title 5,
but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based
on findings of fact, affirming, modifying, or vacating
No. 12‐3598 13
the Secretary’s citation, order, or proposed penalty,
or directing other appropriate relief.
Id. § 815(d).
In bifurcating this regulatory system, Congress clearly
intended to separate the Secretary’s rulemaking and
enforcement functions from the Commission’s adjudicative
function. The Senate report states that the purpose of vesting
adjudicative authority in the Commission was to have a
“completely independent adjudicatory authority.” S. Rep. No.
95‐181 at 47, reprinted in 1977 U.S.C.C.A.N. at 3447. “The
Committee believes that an independent Commission is
essential to provide administrative adjudication which
preserves due process and instills much more confidence in the
program.” Id. In examining a statute with a similar structure,
the Supreme Court noted that “[t]he purpose of this ‘split
enforcement’ structure was to achieve a greater separation of
functions than exists within the traditional ‘unitary’ agency,
which under the Administrative Procedure Act (APA)
generally must divide enforcement and adjudication between
separate personnel.” Martin v. Occupational Safety & Health Rev.
Comm’n, 499 U.S. 144, 151 (1991) (examining the distinct roles
of the Secretary of Labor and the Occupational Safety and
Health Review Commission (“OSHRC”) under
the Occupational Safety and Health Act).9
9
We agree with the Court of Appeals for the District of Columbia Circuit’s
view that “[t]he administrative and judicial review procedures in the OSH
Act are nearly identical to those in the Mine Act.” Sturm, Ruger & Co. v.
Chao, 300 F.3d 867, 872 (D.C. Cir. 2002) (alteration in original) (internal
(continued...)
14 No. 12‐3598
Notably, although Congress intended that the Commission
review the Secretary’s decisions, the Senate report also
indicated that the Secretary’s interpretation of the statute and
regulations should receive some deference: “Since
the Secretary of Labor is charged with responsibility for
implementing this Act, it is the intention of the Committee,
consistent with generally accepted precedent, that the
Secretary’s interpretations of the law and regulations shall be
given weight by both the Commission and the courts.” S. Rep.
No. 95‐181 at 49, reprinted in 1977 U.S.C.C.A.N. at 3448; see also
Martin, 499 U.S. at 152‐53 (discussing the Secretary’s expertise
in assessing a particular regulatory interpretation); Secʹy of
Labor v. Excel Mining, LLC, 334 F.3d 1, 6, 11‐12 (D.C. Cir. 2003)
(holding that the Secretary of Labor’s interpretation was
entitled to deference and that the decision to issue a citation
based on an average of samples taken during a single shift,
rather than during multiple shifts, was reasonable).
2.
This examination of the text and the structure of the statute
reveals two important points for the task before us. First, the
role of the Secretary in approving safety plans in areas not
susceptible to general regulatory governance through the
rulemaking process is distinctly different from the role he
performs pursuant to his enforcement duties. After a process
of dialogue and negotiation with the mine operator, the
9
(...continued)
quotation marks omitted).
No. 12‐3598 15
Secretary must make an independent judgment that the
ventilation system for a particular mining site is safe for those
who will work there.10 Although specific to a certain mine and
susceptible to more frequent alteration as conditions in the
mine change, the process is essentially one of setting standards,
not, in many ways, substantially different from setting more
lasting and general standards through the rulemaking process.
As the Court of Appeals for the District of Columbia Circuit
has noted, the plan approval process differs from formal
rulemaking because the mine operator takes the initiative in
the development of these mine‐specific standards,11
nevertheless the statute clearly places on the Secretary the duty
to reach an independent judgment as to the adequacy of the
standards.12 The statute places on the Secretary’s shoulders the
obligation and prerogative of making a discretionary judgment
as to whether the ventilation system developed by the operator
will protect those who must expose their health, and indeed
10
S. Rep. No. 95‐181, at 25 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3425;
see also United Mine Workers of America, Intʹl Union v. Dole, 870 F.2d 662, 669
n.10 (D.C. Cir. 1989) (“not[ing] that while the mine operator had a role to
play in developing plan contents, MSHA always retained final
responsibility for deciding what had to be included in the [roof] plan”).
11
See Dole, 870 F.2d at 667‐69 (addressing roof control plans); Zeigler Coal
Co. v. Kleppe, 536 F.2d 398, 403 (D.C. Cir. 1976) (addressing ventilation
plans).
12
See 30 U.S.C. § 862(c) (requiring a roof plan to provide for roof securing
materials “at such other locations in the coal mine as the Secretary may
prescribe”); id. § 863(o) (requiring a ventilation plan to show “such
additional or improved equipment as the Secretary may require… and such
other information as the Secretary may require”).
16 No. 12‐3598
their lives, to risk by working at that specific site. In contrast to
the Secretary’s rulemaking responsibilities, the Secretary’s
decision to issue a citation pursuant to his enforcement
authority is subject to review by the Commission. If the mine
operator contests the citation, the Commission has authority to
examine independently the facts and circumstances and
determine whether the mine operator in fact did violate a
standard.
Our examination of the language and the structure of the
statute yields a second significant point. It reveals a significant
gap in the overall statutory scheme: Resolution of an impasse
between the mine operator and the Secretary with respect to
the adequacy of a ventilation plan is not addressed specifically
in the statutory language and is not easily discernible from the
overall structure of the statutory scheme. Because this issue is
central to our inquiry, we now undertake a historical analysis
of the statutory language in the hope that it will shed some
light on our understanding of how the statute contemplates the
resolution of such an impasse.13
Modern efforts to deal legislatively with problems of health
and safety in the mining industry find their anchor in the
13
In determining Congress’s intent with respect to the level of judicial
review it contemplated, we follow the direction of the Supreme Court in
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), and look to “the statute’s
language, structure, and purpose, its legislative history, and whether the
claims can be afforded meaningful review.” Id. at 207 (citation omitted); see
also id. at 216 (noting the Mine Act’s structure and legislative history);
Steadman, 450 U.S. at 97‐102 (examining the language and legislative history
of the APA to determine the appropriate standard of proof).
No. 12‐3598 17
Federal Coal Mine Health and Safety Act of 1969, Pub. L. No.
91‐173, 83 Stat. 742 (1969) (codified as amended at 30 U.S.C.
§§ 801‐878) (the “1969 Act”). This legislation established, and
provided for the enforcement of, mandatory health and safety
standards. The 1969 Act directed the Secretary of the Interior
to work with other agencies to develop and promulgate health
and safety standards which would be mandatory for all coal
mines, see 1969 Act § 101, 83 Stat. at 745‐46, and set interim
standards which would be mandatory until permanent
standards were in place, see id. §§ 201, 301, 83 Stat. at 760, 765.
In setting mandatory standards, the Secretary of the Interior
was directed to consult with federal and state agencies,
representatives of mines and miners, and other interested
persons; to base standards on research; to propose standards
using a fairly formal notice and comment procedure and to
make factual findings. Id. § 101(c)‐(g), 83 Stat. at 745‐47.
Notably, the 1969 Act also required mine operators to create
mine‐specific plans for areas of particular concern such as
ventilation and roofs. See id. §§ 302(a), 303(o), 83 Stat. at 766,
772.
The 1969 Act called for mine inspections, id. § 103, 83 Stat.
at 749‐50, and empowered the Secretary of the Interior to
enforce the mandatory standards by issuing notices or fines, or
by ordering a mine to cease operations, id. § 104, 83 Stat. at
750‐52.14 Mine operators could seek review of any order or
notice by sending a request to the Secretary of the Interior who
14
In 1976, the D.C. Circuit held that a mine‐specific plan is as enforceable
as the mandatory standards once it is adopted by the mine operator and
approved by the Secretary of the Interior. Zeigler Coal Co., 536 F.2d at 409.
18 No. 12‐3598
was then required to investigate and hold a hearing, if
requested, to enable the operator “to present information
relating to the issuance and continuance of such order.” Id.
§ 105(a)(1), 83 Stat. at 753. The hearing would be “of record”
and subject to section 554 of the APA, id. § 105(a)(2), 83 Stat. at
753; the Secretary of the Interior was required to make findings
and issue a written decision, id. § 105(b), 83 Stat. at 753. Orders
of the Secretary were subject to judicial review by a United
States court of appeals, id. § 106(a), 83 Stat. at 754, but the
court’s decision would be based “on the record made before
the Secretary,” id. § 106(b), 83 Stat. at 754. The Secretary’s
findings would be conclusive “if supported by substantial
evidence on the record considered as a whole.” Id.
As we have noted, the 1969 Act required mine operators to
adopt mine‐specific ventilation plans approved by the
Secretary. Id. § 303(o), 83 Stat. at 772. Regulations promulgated
immediately after the 1969 Act established general criteria for
approving ventilation plans, see Mandatory Safety Standards,
Underground Coal Mines, 35 Fed. Reg. 17,890, 17,904 (Nov. 20,
1970) (codified at 30 C.F.R. § 75.316‐2 (1971)), but neither the
1969 Act nor the regulations outlined a method for a mine
operator to obtain review of a district manager’s refusal to
approve a ventilation plan. The Committee Report attached to
the House version of the bill suggested that a mine operator
could appeal a citation to the Secretary or directly to the
Federal Coal Mine Health and Safety Board of Review.15 If the
15
The Federal Coal Mine Health and Safety Board of Review was created
in 1952 when Congress amended the Federal Coal Mine Safety Act. Law of
(continued...)
No. 12‐3598 19
operator appealed directly to this board, it was “not bound by
any previous findings of fact and the burden of proof [was] on
the Secretary.” H.R. Rep. No. 91‐563 (1969), reprinted in 1969
U.S.C.C.A.N. 2503, 2512. If the operator sought review before
the Secretary before appealing to the board, the Secretary’s
decision would be prima facie evidence against the operator,
but “either side” was allowed to “produce additional
evidence.” Id. This procedure did not become part of the final
version of the 1969 Act. In sum, the first modern effort to
address mine safety problems simply did not address resolving
an impasse between a mine operator and the Secretary over the
contents of a site‐specific ventilation plan.
In 1976, the United States Court of Appeals for the District
of Columbia Circuit suggested a process for obtaining review
of disapproval of a mine ventilation plan. See Zeigler Coal Co.,
536 F.2d at 406‐07. In that case, the court was asked to consider
whether provisions of an approved ventilation plan should be
considered mandatory standards and thus subject to the 1969
Act’s enforcement provisions. Id. at 401. Before answering the
question in the affirmative, the court examined the 1969 Act’s
history and process for obtaining approval of a ventilation
plan. The court noted that ventilation plans “appear to be
developed by informal negotiations between the operator and
15
(...continued)
July 16, 1952, Pub. L. No. 552, § 205(a), 66 Stat. 692, 697 (1952) (repealed
1969). It was abolished when the 1969 Act became effective. See Federal Coal
Mine Health and Safety Act of 1969, Pub. L. No. 91‐173, § 509, 83 Stat. 742,
803 (1969) (codified as amended at 30 U.S.C. §§ 801‐878) (the “1969 Act”)
(repealing the Federal Coal Mine Safety Act).
20 No. 12‐3598
the Secretary’s representative” without the protections of the
formal notice and comment process set forth in section 101 of
the 1969 Act. Id. at 403. The mine operator argued that if the
Secretary could enforce a ventilation plan as a mandatory
standard, he would be able to circumvent the formal
procedures for setting safety standards by simply refusing to
approve an operator’s ventilation plan unless the operator
agreed to whatever standards the Secretary deemed
appropriate. Id. at 406. The court rejected this argument; it
pointed out that a mine operator could choose whether to
adopt a plan and the agency’s recourse when an operator
refused to adopt a plan would be to seek civil or criminal
penalties which would require a hearing and thus act as a
safeguard against agency attempts to circumvent formal
standard‐setting procedures. Id. at 406‐07.
The statute makes clear that the ventilation plan is
not formulated by the Secretary, but is “adopted by
the operator.” While the plan must also be approved
by the Secretary’s representative, who may on that
account have some significant leverage in
determining its contents, it does not follow that he
has anything close to unrestrained power to impose
terms. For even where the agency representative is
adamant in his insistence that certain conditions be
included, the operator retains the option to refuse to
adopt the plan in the form required … .
The agency’s recourse to such a refusal to adopt a
particular plan appears to be invocation of the civil
and criminal penalties of § 109, which require an
opportunity for public hearing and, ultimately,
No. 12‐3598 21
appeal to the courts. At such a hearing, the operator
may offer argument as to why certain terms sought
to be included are not proper subjects for coverage
in the plan. Because we believe that the statute offers
sound basis for narrowly circumscribing the subject
matter of ventilation plans, we conclude that this
opportunity for review is a substantial safeguard
against significant circumvention of the § 101
procedures.
Id. (footnotes omitted). The court noted that the Secretary’s
power was further limited because the ventilation plan must
contain only specific, as opposed to general, standards
applicable to a particular mine and must not address issues
other than ventilation. Id. at 407. The Court of Appeals for the
District of Columbia Circuit’s statement in Zeigler is significant
because, although it does not address the standard of review,
it specifically addresses, for the first time, the question of
resolution of an impasse over the terms of a ventilation plan.
The following year, Congress enacted the Federal Mine
Safety and Health Amendments Act of 1977, Pub. L.
No. 95‐164, 91 Stat. 1290 (1977) (codified as amended at 30
U.S.C. §§ 801‐878) (the “1977 Act”). The 1977 Act moved
responsibility for setting and enforcing health and safety
standards from the Secretary of the Interior to the Secretary of
Labor, 1977 Act § 102, 91 Stat. at 1290, and created the Mine
Safety and Health Administration as an agency within the
Department of Labor, id. § 302(a), 91 Stat. at 1319. Like the 1969
Act, the 1977 Act provided that the Secretary could issue
citations for violations of the mandatory standards, but rather
than challenging the citation to the Secretary, a mine operator
22 No. 12‐3598
now would contest a citation before a newly created Federal
Mine Safety and Health Review Commission. Id. § 201, 91 Stat.
at 1305‐06, 1313 (amending sections 105(d), 113(a) of the 1969
Act). As before, the hearing before the Commission would be
conducted in accordance with 5 U.S.C. § 554. Id. § 201, 91 Stat.
at 1306 (amending section 105(d) of the 1969 Act). After a
hearing, the Commission would be required to issue an order
based on findings of fact. An operator could seek judicial
review by a court of appeals, which would decide the case
based on the record created by the Commission; however, a
party could obtain permission to supplement the record if it
could show that additional evidence was “material and that
there were reasonable grounds for the failure to adduce such
evidence in the hearing before the Commission.” Id. § 201, 91
Stat. at 1306 (amending section 106(a)(1) of the 1969 Act). The
Senate report explained that the creation of an independent
review commission was “essential” to preserving due process
and instilling more confidence in the program. S. Rep. No. 95‐
181 at 47, reprinted in 1977 U.S.C.C.A.N. at 3447. It also noted
that the initial hearing before the Commission should be before
an ALJ, who could compel witnesses and the production of
evidence. Id. at 48, reprinted in 1977 U.S.C.C.A.N. at 3447.
Despite its broad attention to the structure of the
mechanism for regulating the mining industry, this legislative
effort yielded no concrete guidance on the resolution of
impasses over ventilation plans. The 1977 Act simply retained
the section of the 1969 Act that required ventilation plans to be
suitable to the conditions of the mine. Notably, however, the
Senate report approved of Zeigler’s discussion about the
adoption of a mine plan, emphasized the importance of the
No. 12‐3598 23
Secretary’s judgment in approving plans and noted that the
operator is “entitled to full and prompt judicial review.” Id. at
25, reprinted in 1977 U.S.C.C.A.N. at 3425. The report stated:
The Committee notes that in addition to
mandatory standards applicable to all operators,
operators are also subject to the requirement set out
in the various mine by mine compliance plans
required by statute or regulation. The requirements
of these plans are enforceable as if they were
mandatory standards. Such individually tailored
plans, with a nucleus of commonly accepted
practices, are the best method of regulating such
complex and potentially multifaceted problems as
ventilation, roof control and the like. The Committee
notes with approval that individual mine plan adoption
and implementation procedures have been sustained by
the federal Court of Appeals for the District of Columbia
circuit ([Zeigler] Coal Company v. Secretary of the
Interior, 536 F.2d 398, (1976). Thus, the Committee fully
expects the individual mine plan technique to continue to
be utilized by the Secretary in appropriate circumstances.
The Committee cautions that while the operator proposes
a plan and is entitled, as are the miners and
representatives of miners to further consultation with the
Secretary over revisions, the Secretary must
independently exercise his judgment with respect to the
content of such plans in connection with his final
approval of the plan. The operator and the
representative of miners are entitled to full and
24 No. 12‐3598
prompt judicial review of plan contents, under
Section 102(f).[16]
Id. (emphasis added).
The House conference report, see H.R. Rep. No. 95‐655
(1977) (Conf. Rep.), reprinted in 1977 U.S.C.C.A.N. 3485, 3501,
discussed the process for review of citations by
the Commission, but did not discuss a procedure for reviewing
the Secretary’s refusal to approve a ventilation or other mine
plan. It simply noted that it would adopt the Senate’s version
of the bill relating to the review of citations, which gave the
aggrieved party the opportunity to be heard before the
Commission and authorized the Commission to issue a
decision based on its own factual findings. Id.
In sum, other than the Senate report’s reference to the
method mentioned in Zeigler, neither the 1977 Act nor its
accompanying legislative history discusses procedures for
obtaining approval of individual mine plans or obtaining
review of the Secretary’s refusal to approve a mine plan. Nor
do they specify the standard of review to be applied by the ALJ
in reviewing the Secretary’s decision.
In 2006, Congress gave us another oblique indication that
it approved of the citation system as a means of reviewing the
Secretary’s disapproval of plans drawn up by mine operators.
In that year, Congress amended the Mine Act to require mine
16
The committee report states that judicial review is available under
“Section 102(f),” but this must be a typographical error. Neither the 1969
Act nor the 1977 Act contain a section 102(f). Judicial review under both acts
is available under section 106.
No. 12‐3598 25
operators to adopt emergency response plans approved by the
Secretary. See Mine Improvement and New Emergency
Response Act of 2006, Pub. L. No. 109‐236, 120 Stat. 493 (2006)
(codified at 30 U.S.C. §§ 801‐878) (the “2006 Act”). The 2006 Act
provides that disputes relating to the Secretary’s refusal to
approve an emergency response plan be resolved through a
process substantially similar to the “technical violation”
method used for reviewing mine ventilation plans. See 2006
Act § 2, 120 Stat. at 495‐96 (amending section § 316(b)(2)(G) of
the 1977 Act). Congress did not amend the provisions related
to ventilation plans, but the Senate report accompanying the
2006 Act discussed the value of the plan adoption regulations
that were already in place for roof and ventilation plans. S.
R e p . No. 109 ‐ 3 6 5 , a t 4 ( 2 0 0 6 ) , a v a i l a b l e a t
http://www.msha.gov/SOLICITOR/MinerActLegHist.pdf.17
Specifically, the report notes that the plan method is ideal for
ensuring that the safety plan remains up‐to‐date on the best
technologies and accounts for the changing conditions of a
particular mine. “[F]lexibility and practicality” are important
in formulating a mine plan. Id. Further, the report specifically
recognizes that negotiations on an appropriate plan will not
17
The ventilation plan regulations do not set forth a method for obtaining
approval of a ventilation plan or explain how a district manager should
decide to approve a plan. However, there are extensive general ventilation
regulations applicable to every mine which detail the type of fans a mine
may use to ventilate a mine, where the fans and their power sources are to
be located, daily air quality monitoring, where air quality samples should
be taken, minimum air quality standards and more. See 30 C.F.R. §§ 75.300‐
75.389 (2009). The mine ventilation plan must include information related
to many of these regulations and include “any additional provisions
required by the district manager.” See id. § 75.371.
26 No. 12‐3598
always be easy and “that in some instances there may be
controversies that require prompt and impartial resolution.” Id.
at 5. The report states the committee’s intention to adopt a
“technical violation” method of review because that is a
method already familiar to the parties:
As is currently the case with roof and ventilation
plans, the dispute resolution process begins with a
review and decision by an Administrative Law
Judge from the Mine Safety and Health Review
Commission. Further appeal from the ALJ’s decision
may be taken in the same manner as with any other
citation. This process is, of course, to be distinguished
from the issuance of a citation for non‐compliance with
the provisions of an already approved plan. In those
instances the normal procedures regarding citation level
and appeal process would apply.
Id. (emphasis added).
The report emphatically distinguishes the “technical
violation” from the use of citations to enforce already existing
rules. Notably, neither the text nor the legislative history of this
statute addresses the standard of review to be employed by the
Commission in adjudicating denials of approval for emergency
response plans.18
Implementing regulations and agency directives during the
time these legislative actions were taken similarly add nothing
18
We note that the Commission has applied an arbitrary and capricious
standard of review to emergency response plan disputes. See Emerald Coal
Res., LP, 29 FMSHRC at 966.
No. 12‐3598 27
of substance to our inquiry. On November 20, 1970, the
Secretary of the Interior, then the officer responsible for the
administration of the statute, issued a final rule establishing
standards for ventilation as required by the 1969 Act. The
regulation required operators to submit various pieces of
information to the MSHA district manager; it also set forth
criteria to guide approval of a ventilation plan. Mandatory
Safety Standards, Underground Coal Mines, 35 Fed. Reg. at
17,904. The regulations state that the operator must submit a
plan to the Secretary, but do not suggest a process for resolving
disputes or obtaining review. Id.; see also 30 C.F.R. § 75.316
(1971). The 1978 and 2009 versions of the rule also suggest no
process for resolution of these disputes. See 30 C.F.R. § 75.316
(1978), 30 C.F.R. §§ 75.370‐75.371 (2009).
In examining MSHA’s internal policies, we note that
volume V of MSHA’s “Program Policy Manual” discusses the
process for approving mine plans and contesting MSHA’s
refusal to approve a plan. According to the manual, if MSHA
is unable to approve a plan, “the operator should be notified in
writing of what information is needed or why the changes
cannot be approved. The process should be completed quickly
… .” Program Policy Manual, Vol. V ‐ Coal Mines, MSHA, 4 (June
28, 2013), http://www.msha.gov/REGS/COMPLIAN/‐
PPM/PDFVersion/PPM%20Vol%20V.pdf. 19 The manual
indicates that an operator may contest MSHA’s decision by
notifying MSHA and receiving a citation. “Where the operator
19
The manual available from MSHA’s website is current as of June 2013,
but the section on mine plan approval contests has not changed since
February 2003.
28 No. 12‐3598
disagrees with MSHA and indicates the desire to seek a
citation to contest before the Federal Mine Safety and Health
Review Commission, a citation should be issued.” Id. The
manual suggests ways of obtaining the necessary citation and
explains that review will be before an ALJ:
[In t]he case of a new mine plan with a provision
that cannot be approved … [t]he operator could
indicate that mining operations will begin on a
particular date, using the plan that contains the
provision which is not approved. On the date
indicated for starting operations, a citation would be
issued for failure to adopt and follow an approved
plan, as required by the applicable standard.
Abatement would be achieved by the operator
promptly adopting provisions that satisfy MSHA’s
previously documented concerns.
Id. at 5. In each of these cases, the operator would have the
option of contesting the citation issued and presenting to an
administrative law judge the reasons why the disputed plan
provision should have been approved. “Likewise, [MSHA]
would present [its] reasons for revoking or denying approval.”
Id. The manual’s description of the hearing before the ALJ does
not indicate the standard of review to be applied.
This analysis of the historical development of the statutory
provisions at issue establishes that the “technical violation”
method of seeking review of an impasse in the development of
a ventilation plan developed first through judicial suggestion
and then through custom and agency practice. Congressional
approval came obliquely at first through mention in legislative
No. 12‐3598 29
history and then more directly through somewhat parallel
legislation governing emergency response plans. Nevertheless,
the issue of the appropriate standard of review to apply to the
conclusion of this process has not been addressed.
3.
Our examination of the overall text of the statute reveals
that it is not at all clear that Congress ever focused explicitly on
the appropriate standard of review for the Secretary’s refusal
to approve a mine ventilation plan. The statutory text, read as
a whole, makes clear that the process of approving a
ventilation plan proposed by the mine operator is a
significantly different task than issuing a citation for the
violation of an established standard. Put in its simplest terms,
it involves the formulation of a standard, not the enforcement of
a standard. It requires the gathering of information by the mine
operator and its presentation to the district manager, the
manager’s examining and assessing that material and
considering the views of the operator on the appropriateness
of the plan. At bottom, it entails the exercise of the Secretary’s
independent judgment as to the appropriateness of the plan to
ensure the health and safety of the miners. There is, in other
words, a congressional mandate that the Secretary exercise
independent judgment that the plan safeguards those whom
it is designed to protect. The plan as finally implemented must
reflect the Secretary’s best judgment that the mine is indeed
safe for miners. See 30 U.S.C. § 863(o). We further note that, in
enacting the legislation dealing with ventilation plans,
Congress did not affirmatively enact the “technical violation”
30 No. 12‐3598
approach to obtaining review of secretarial denials of plans
proposed by mine operators. This scheme was the product of
agency custom and practice. It is clear, however, that Congress
became aware of the practice and, indeed, later implemented
it in the area of emergency response plans.
As part of their argument, Mach points us to 30 U.S.C.
§ 815(d), which specifies that proceedings before the
Commission are to be conducted in accordance with section
554 of the APA. Appellant’s Br. 19‐20. Section 556(d), which
applies to hearings under section 554, provides for de novo
review.20 When enacted, this provision was placed in the
statute to ensure that those accused of violating an established
regulation were accorded a full opportunity to demonstrate
that they had not acted as the Secretary alleged. The advent of
the “technical violation” to review the Secretary’s refusal to
approve a ventilation plan simply was not before Congress
when it initially enacted the provision. When Congress finally
acknowledged the existence of the practice, or even when it
implemented it in the emergency response legislation, it did
not address whether the standard of review regularly involved
in reviewing violations of established rules should be imported
to the review of denials of secretarial approval of ventilation
plans.
In our view, the use of a de novo standard to review such
secretarial refusals runs into a substantial statutory barrier. Use
of such a de novo standard of review in the ventilation plan
20
See Steadman, 450 U.S. at 102 (holding that the standard of proof that
applies in hearings governed by section 556 of the APA is the
preponderance of evidence).
No. 12‐3598 31
situation would undermine—substantially—the specific
statutory language of 30 U.S.C. § 863(o) that the implemented
plan must be one approved by the Secretary, not by the
Commission. This statutory provision makes clear that the
Secretary’s role of approving the plan is not really an
enforcement role susceptible to de novo review, but rather a
role imbued with a legislative or policy‐making dimension to
ensure that the plan is reflective of the public interest in mine
safety. As we have noted earlier, in its earliest
acknowledgment of the use of the “technical violation”
approach to review secretarial denials, the Senate Committee
specifically “caution[ed]” that “the Secretary must
independently exercise his judgment with respect to the
content of such plans in connection with his final approval of
the plan.” S. Rep. No. 95‐181 at 25, reprinted in 1977
U.S.C.C.A.N. at 3425 (emphasis added). That warning was
embodied in section 863(o). We therefore cannot accept Mach’s
argument that the foregoing analysis is basically a “policy
argument.” Reply Br. 3.
In light of the statutory text and its history, we conclude
that the majority of the members of the Commission correctly
determined that the decision of the Secretary to withhold
approval of the ventilation plan is reviewable under the abuse
of discretion standard. To permit the Commission to substitute
its view for that of the Secretary simply would displace entirely
the expertise of the Secretary from the determination of the
appropriate safety standards for mine ventilation, a situation
32 No. 12‐3598
clearly contrary to the intent of the statutory scheme mandated
by Congress. 21
Our conclusion is consistent with the Supreme Court’s
discussion of the roles of the Secretary and OSHRC in Martin
v. OSHRC, 499 U.S. 144. In determining that the Secretary’s
interpretation, rather than OSHRC’s, should receive deference,
the Supreme Court noted that the Secretary, as the entity
responsible for promulgating and enforcing the statute, has
policymaking expertise and is
in a better position than is the Commission to
reconstruct the purpose of the regulations in
question. Moreover, by virtue of the Secretary’s
statutory role as enforcer, the Secretary comes into
contact with a much greater number of regulatory
problems than does the Commission, which
encounters only those regulatory episodes resulting
in contested citations … . Because historical
familiarity and policymaking expertise account in
the first instance for the presumption that Congress
21
We recognize that past Commission decisions required the Secretary to
bear the burden of proving, by preponderance of the evidence, that the
Secretary’s plan was suitable and that the mine operator’s plan was
unsuitable, see, e.g., Sec’y of Labor v. Peabody Coal Co., 15 FMSHRC 381, 388
(1993), and that the Commission generally must explain its decision to
depart from its own precedent, Lone Mountain Processing, Inc. v. Sec’y of
Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013). Our conclusion that the statute’s
regulatory scheme requires the Commission to review the Secretary’s
decision to approve or reject a ventilation plan under a more deferential
standard, however, makes further explanation by the Commission
unnecessary in this case.
No. 12‐3598 33
delegates interpretive lawmaking power to the
agency rather than to the reviewing court, we
presume here that Congress intended to invest
interpretive power in the administrative actor in the
best position to develop these attributes.
… .
For the same reason, we reject the Court
of Appeals’ inference that Congress intended to
endow the Commission with the normal
complement of adjudicative powers possessed by
traditional administrative agencies.
Id. at 152‐54 (citations omitted) (internal quotation marks
omitted).
B.
Having determined that the Commission was correct in its
conclusion that the Secretary’s decision ought to be reviewed
deferentially, we must determine whether the Commission’s
decision can be sustained on review before this court. Unlike
the situation that has occupied us in the earlier pages of this
opinion, the standard by which we review the orders of the
Commission is well settled. We review the factual findings of
the Commission to ascertain if they are supported by
substantial evidence, 30 U.S.C. § 816(a); we review questions
of law de novo, Zeigler Coal Co. v. Kelley, 112 F.3d 839, 841 (7th
Cir. 1997); and we review the ALJ’s evidentiary rulings for an
abuse of discretion, Lakeland Enters. of Rhinelander, Inc. v. Chao,
402 F.3d 739, 745 (7th Cir. 2005).
34 No. 12‐3598
1.
Mach contends that the ALJ’s incorrect application of an
arbitrary and capricious standard of review led her to exclude
or unfairly discount its evidence and the testimony of its
experts, thus preventing Mach from fully presenting its case.
Appellant’s Br. 38. Our earlier discussion and conclusion
forecloses this line of argument. We note that the ALJ did allow
Mach’s witnesses to testify, considered their testimony and
provided a reasoned explanation both for discounting their
testimony and for accepting the testimony of the Secretary’s
witnesses.22
2.
Examining the merits, although Mach contends that it was
entitled to a de novo review before the ALJ, it does not argue
that, if the arbitrary and capricious standard applies, there is
insufficient evidence to sustain the decision of the district
22
See, e.g., Mach Mining, LLC v. Sec’y of Labor, 32 FMSHRC 149, 158 (2010)
(finding one of Mach’s witnesses less credible because he testified from
notes handed to him by his attorney); id. (noting that Mach’s expert failed
to address MSHA’s recommendations); id. at 159 (concluding that the
Secretary’s position was based on legitimate facts and Mach presented no
real evidence to the contrary); id. at 160 (determining that the Secretary
demonstrated a need for ventilation controls and noting that Mach’s expert
failed to explain how it would avoid a short circuit in the air flow without
controls).
No. 12‐3598 35
manager.23 It also does not maintain that the district manager
failed to follow the general regulations with respect to mines
or the various directives promulgated by the Secretary to
ensure comprehensive review of a submitted plan. Nor does it
contend that the district manager acted arbitrarily in refusing
to review any information that Mach submitted to him.
Mach does submit, however, that it was unaware “of the
full range of disagreements MSHA would have with its
ventilation plan for panel 3.” Appellant’s Br. 42. It alleges that
MSHA never fully articulated its rationale for rejecting Mach’s
ventilation plan during informal negotiations, which
prejudiced Mach at the hearing before the ALJ. At bottom,
Mach claims that the district manager failed to negotiate in
good faith, see Secʹy of Labor v. C.W. Mining Co., 18 FMSHRC
1740, 1747 (1996) (explaining that good faith negotiations
include “notice of a party’s position and adequate discussion
of disputed provisions”), contrary to the negotiation
procedures required by the Commission, see Sec’y of Labor v.
Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (1985). However,
the ALJ found that the negotiations between Mach and the
district manager did satisfy the good faith requirement.
Specifically, she noted “that the Secretary and Mach had
extensive back and forth discussions over a period of eight
months” and that those discussions “included telephone calls,
emails, letters and meetings, at both the district and national
23
Mach’s statement of the issues asserts that the ALJ’s decision was not
supported by substantial evidence, Appellant’s Br. 2, but its brief on this
issue focuses only on what the ALJ could have found under a de novo
standard of review, id. at 44.
36 No. 12‐3598
level. During the negotiations both parties made adjustments
in their positions regarding the issues. The discussions were
ongoing and, based upon those talks, several of the issues were
removed from consideration.” Mach Mining, LLC, 32 FMSHRC
at 151. Mach’s brief does not point to any evidence to the
contrary.
We thus affirm the Commission’s decision on the
evidentiary issue and on the merits.
Conclusion
For the above reasons, we must deny the petition for
review.
PETITION DENIED