Secretary of Labor v. Knight Hawk Coal, LLC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2020 Decided March 26, 2021

No. 20-1299

SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER

v.

KNIGHT HAWK COAL, LLC AND FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION,
RESPONDENTS

On Petition for Review of a Decision of the
Federal Mine Safety and Health Review Commission

Emily Toler Scott, Acting Counsel for Appellate
Litigation, U.S. Department of Labor, argued the cause and
filed the briefs for petitioner.

Ralph Henry Moore II argued the cause for respondent
Knight Hawk Coal, LLC. With him on the brief was Patrick
W. Dennison.

Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
 2
KAREN LECRAFT HENDERSON, Circuit Judge: The Federal
Mine Safety and Health Amendments Act of 1977 (Mine Act),
30 U.S.C. §§ 801 et seq., requires the Secretary of the United
States Department of Labor (Labor Secretary or Secretary),
acting through the Mine Safety and Health Administration
(MSHA), to negotiate mine-specific ventilation plans with
representatives of the companies that operate the mines. From
2006 to 2018, Knight Hawk Coal, LLC (Knight Hawk)
operated its Prairie Eagle Underground Mine (Prairie Eagle) in
accordance with a ventilation plan approved by MSHA. The
approved ventilation plan permitted Knight Hawk to conduct
perimeter mining at Prairie Eagle with 40-foot perimeter cuts.1
In January 2018, MSHA conducted a ventilation survey at
Prairie Eagle and concluded that the approved ventilation plan
did not adequately ventilate the perimeter cuts. MSHA relied
primarily on the results of chemical smoke tests, which
involved survey team members observing smoke movement
from a 44-foot distance. From February to October 2018,
MSHA and Knight Hawk exchanged letters about the alleged
deficiencies in the ventilation plan. Then, in November 2018,
MSHA revoked Knight Hawk’s Prairie Eagle ventilation plan.
After receiving a technical citation from MSHA for operating
without an approved plan,2 Knight Hawk sought review of
MSHA’s revocation decision from the Federal Mine Safety and
Health Review Commission (Commission).

An Administrative Law Judge (ALJ) appointed by the
Commission found that the revocation decision was arbitrary
and capricious, in part because the chemical smoke test results
were unreliable and inconsistent and the Secretary ignored
disagreements among MSHA ventilation survey team
1
See infra at 5–6.
2
See Prairie State Generating Co. v. Sec’y of Labor, 792 F.3d
82, 87–88 (D.C. Cir. 2015) (explaining technical citation practice to
enable review of MSHA actions).
 3
members regarding the results. The ALJ vacated the technical
citation and reinstated the previously approved ventilation
plan. The Commission then affirmed the ALJ’s decision,
finding that substantial evidence supported the ALJ’s
conclusion that the Secretary failed to explain adequately why
the existing ventilation plan was deficient. The Secretary now
petitions us for review. We deny the petition because
substantial evidence supports the ALJ’s finding that the
Secretary’s revocation decision was indeed arbitrary and
capricious.

I. BACKGROUND

A. Statutes and Regulations

The Congress enacted the Mine Act “to protect the health
and safety of the Nation’s coal or other miners.” 30 U.S.C.
§ 801(g). “The Mine Act subjects mine operators to substantial
safety regulation, under rules generally applicable to all mines,
as well as mine-specific safety plans suited to the particular
geologic conditions and the operator’s chosen mining system.”
Prairie State Generating Co. v. Sec’y of Labor, 792 F.3d 82,
84 (D.C. Cir. 2015).

Two separate agencies enforce the Mine Act through
“complementary policymaking and adjudicative functions.” Id.
at 85. The Labor Secretary, acting through MSHA, sets
regulatory standards for mine safety, conducts regular mine
inspections and issues citations and orders in response to
violations. See 29 U.S.C. § 557a; 30 U.S.C. §§ 813, 814;
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202–04 & n.5
(1994). The Commission, an adjudicatory body that is
independent of the Secretary, reviews challenges to MSHA’s
actions. See 30 U.S.C. §§ 815(d), 823.
 4
“The Mine Act requires the Secretary, acting through an
MSHA district manager . . . , to negotiate mine-specific roof-
support and ventilation plans with representatives of the
companies that operate the mines.” Prairie State, 792 F.3d at
86. In this respect, the Congress determined that “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.”
United Mine Workers of Am., Int’l Union v. Dole, 870 F.2d
662, 669 (D.C. Cir. 1989) (quoting S. Rep. No. 95–181, at 25
(1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3425).

A mine operator must propose a plan that it believes is
“suitable” to ensure adequate ventilation as well as methane
and dust control based on each mine’s unique geology and
proposed mining system. See 30 U.S.C. § 863(o); see also 30
C.F.R. § 75.370(a)(1) (“The 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 system at the
mine.”). “[W]hile the operator proposes a plan and is
entitled . . . 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.” Dole, 870 F.2d
at 669 n.10 (quoting S. Rep. No. 95–181 at 25, 1977
U.S.C.C.A.N. at 3425). Thus, the Secretary “retain[s] final
responsibility for deciding what ha[s] to be included in the
plan.” Id. “No mine may operate without an approved plan, and
once the Secretary has approved a plan, its terms are
enforceable as if they were duly promulgated regulations.”
Prairie State, 792 F.3d at 86. Moreover, “[t]he ventilation plan
for each mine shall be reviewed every 6 months by an
authorized representative of the Secretary to assure that it is
 5
suitable to current conditions in the mine.” 30 C.F.R.
§ 75.370(g).

B. Facts

“Perimeter mining” is “a special variant of the room-and-
pillar method” of mining. Sec’y of Labor v. Knight Hawk Coal,
LLC (Knight Hawk II), 42 FMSHRC 435, 436 (July 2020)
(internal quotations omitted). Underground room-and-pillar
mining proceeds in two phases: advance mining and retreat
mining. Coal is first extracted with advance mining—digging
parallel and perpendicular tunnels into the solid coal and
leaving pillars of undisturbed coal behind for roof support.

Retreat mining begins after advance mining has been
completed. In traditional room-and-pillar mining, entire pillars
are removed during retreat mining and the roof eventually
collapses. By contrast, perimeter mining involves making
angled cuts into the interior pillars or into the perimeter of areas
where advance mining has been completed. Thus, no interior
pillars are completely removed in perimeter mining. Because
the interior pillars are left to support the roof, “perimeter
mining has less caving of the mined area than other forms of
retreat mining.” Id. at 437.

Three mines under MSHA Coal District 8’s jurisdiction3
either currently operate, or previously operated, with perimeter
mining: Gateway North, Viper and Knight Hawk’s Prairie

3
At the time the case was presented to the ALJ and to the
Commission, MSHA’s district offices were identified by number.
MSHA’s district offices have since been renamed based on location.
Coal District 8 is now the Vincennes, Indiana district office. Because
the ALJ and the Commission decisions refer to District 8, we also
refer to the Vincennes, Indiana district office as District 8 to avoid
confusion.
 6
Eagle. As noted, the Mine Act requires every underground coal
mine operator to adopt a ventilation plan “suitable to the
conditions and the mining system of the coal mine and
approved by the Secretary.” 30 U.S.C. § 863(o); see 30 C.F.R.
§§ 75.370–.371. Prairie Eagle received conditional approval
from MSHA to begin perimeter mining in 2006. MSHA
District 8 granted unconditional approval four years later in
2010 and again granted unconditional approval in 2015. The
approved ventilation plan allowed Knight Hawk to conduct
perimeter mining at Prairie Eagle with deep perimeter cuts, up
to a depth of 40 feet.

In 2017, the Gateway North mine submitted a plan to
MSHA to conduct perimeter mining with 40-foot cuts, as
opposed to the 20-foot perimeter cuts that had previously been
approved at that mine. Before approving the plan, MSHA
District 8 Manager Ronald Burns ordered a ventilation survey
to determine whether the deep cuts could be adequately
ventilated. Burns concluded that “the results [of the Gateway
North survey] raised concerns regarding 40-foot cut perimeter
mining, so he decided to conduct [ventilation] surveys at Viper
Mine and [Prairie Eagle], as well.” Knight Hawk II, 42
FMSHRC at 439.

On January 9–10, 2018, MSHA conducted a ventilation
survey of Prairie Eagle. Dennis Beiter, an MSHA mining
engineer with the ventilation division, headed the investigation
team. The team included MSHA Ventilation Specialists and
other MSHA personnel. The survey was conducted using
“standard investigation procedures and standard procedures for
collecting ventilation related data.” Joint Appendix (J.A.) 36
(Dennis Beiter Administrative Hearing Testimony).
Specifically, the team “used chemical smoke tests to determine
airflow velocity and direction at various locations within the
entries, crosscuts, and perimeter cuts of a block and measured
 7
air quality with handheld devices and bottle samples.” Knight
Hawk II, 42 FMSHRC at 439. For the perimeter cuts,

[t]he team . . . conducted [chemical] smoke
tests at the ends of the 40-foot perimeter cuts
using a probe with a 44-foot extension fitted
with two cap lamps attached to the end of the
probe. The smoke was released from a tube at
the end of the [44-foot] extension. Team
observers, 44 feet away, would attempt to see
the movement of the smoke—whether the
smoke moved left or right, indicating airflow, or
whether it rose to the roof and dissipated,
indicating no airflow.

Id. (citations omitted). MSHA’s team did not use tracer gas
tests4 in its survey even though Beiter admitted that tracer gas
could have been used to provide similar airflow information.

On January 29, 2018, MSHA conveyed to Knight Hawk
the preliminary results of the ventilation survey. “The survey
showed that the highest concentration of methane, particularly
at the end of the 40-foot perimeter cuts, was 0.12%—far below
an explosive level of 5%. The lowest concentration of oxygen
was measured at 20.2%, also well within safe limits.” Id. at
441. The survey also found that “[t]here was no perceptible air
movement in 5[7]5 of the 138 deep perimeter cuts MSHA tested
(of the 615 total deep perimeter cuts in the panel), and [in some

4
Tracer gas is used to determine airflow by releasing a certain
gas in one area of a mine and then sampling for that gas in another
area and assessing its concentration level.
5
The Secretary’s brief states that there was no perceptible
movement in 56 of the 138 deep perimeter cuts. But MSHA’s final
ventilation survey report stated that 57 of the 138 deep perimeter cuts
tested had no perceptible air movement. See J.A. 265.
 8
cuts] where there was air movement, it was intermittent
(inconsistent and uncontrolled).” Pet’r’s Br. 19 (citing J.A.
265).

After MSHA’s finalized ventilation survey report issued
on February 8, 2018, Knight Hawk and MSHA exchanged a
series of letters. MSHA’s letters outlined alleged deficiencies
in the ventilation plan and asked Knight Hawk to submit a
revised plan. Knight Hawk claimed that the ventilation survey
report “contained opinion, speculation, and assumed
definitions and designations of the terms pillared areas, bleeder
entries, partial recovery second mining, and return air split.”
Knight Hawk II, 42 FMSHRC at 441 (internal quotations
omitted). Knight Hawk also emphasized the safety benefits of
perimeter mining as compared to other mining methods.6

Knight Hawk eventually proposed one modification in
response to the MSHA letters, offering to “add a statement to
the Mine Ventilation Map for each worked out area to better
describe the direction of air movement through the worked-out
areas.”7 J.A. 296. MSHA rejected the proposal “because it was
only a general statement that air was going from one place to
another without indicating how it got there.” Pet’r’s Br. 23
(citing J.A. 74). In his testimony at the subsequent
administrative hearing, District 8 Manager Burns described the
difference as stating airflow went from point A to point Z rather
than from point A to B to C, etc.

6
In this case, “[i]t is uncontested that perimeter mining is safer
than other forms of retreat mining.” Id. at 437.
7
A worked-out area is “[a]n area where mining has been
completed, whether pillared or nonpillared, excluding developing
entries, return air courses, and intake air courses.” 30 C.F.R.
§ 75.301.
 9
On October 22, 2018, MSHA notified Knight Hawk that,
if Knight Hawk did not propose modifications that addressed
the alleged deficiencies in the ventilation plan, the plan would
be revoked. On November 14, 2018, MSHA revoked Knight
Hawk’s Prairie Eagle ventilation plan, approved an interim
plan that did not include perimeter mining and issued a
technical citation. The technical citation asserted five
deficiencies:

(1) the design of the bleeder system did not
control air direction through[] [all individual]
blocks; (2) a method to control air movement to
ventilate extended depth perimeter cuts within
the “pillared area” had not been provided; (3)
air direction through blocks, including the
“pillared areas” within each block, was not
shown on plan drawings or the ventilation map
(noting that information on direction of airflow
is necessary for proper evaluation of bleeder
system effectiveness); (4) [the] air direction at
evaluation points was not shown in the plan
drawings or map (noting the same); and (5) the
specified means of evaluating ventilation in the
worked-out area did not provide sufficient
information to determine the effectiveness of
the bleeder system.

Knight Hawk II, 42 FMSHRC at 455. The technical citation
referred to multiple sections of the underground coal mine
safety regulations to support the five alleged deficiencies. Id.
(citing 30 C.F.R. §§ 75.334(b)(1), 75.364(a)(2)(iii),
75.364(a)(2)(iv), 75.334(c)(4), 75.371(bb), 75.372(b)(9),
75.371(y), 75.371(z)). In its brief, the Secretary categorizes the
five deficiencies as focused on two problems: “the [40-foot]
deep cuts were not adequately ventilated, and mine examiners
 10
could not adequately evaluate whether the ventilation system
was working effectively.” Pet’r’s Br. 24.

C. Procedure

On November 15, 2018, Knight Hawk filed a notice of
contest, challenging MSHA’s technical citation. Knight Hawk
Coal, LLC v. Sec’y of Labor (Knight Hawk I), 41 FMSHRC
522, 522 (Aug. 2019) (ALJ). On March 28–29 and April 1,
2019, an ALJ held a hearing on Knight Hawk’s challenge to
the technical citation. On August 19, 2019, the ALJ issued his
decision, concluding that MSHA’s revocation of Knight
Hawk’s Prairie Eagle ventilation plan was arbitrary and
capricious, vacating the technical citation and reinstating the
previously approved ventilation plan.8

The ALJ examined the factors set forth in Motor Vehicle
Manufacturers Ass’n of the United States, Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983),
traditionally used to determine whether an agency action is
arbitrary and capricious.9 First, the ALJ concluded “MSHA
improperly relied on two factors: unreliable smoke tests
conducted inside the perimeter cuts, and a bias against
8
Although the ALJ noted that “Commission case law regarding
the standard of review applicable to . . . a district manager’s rejection
of a ventilation plan appears to be in a state of flux,” the ALJ
correctly concluded that “the most recent Commission
precedent . . . applies an arbitrary and capricious standard in these
circumstances.” Knight Hawk I, 41 FMSHRC at 544, 548.
9
The Motor Vehicle Mfrs. “arbitrary and capricious” factors are:
“if the agency has relied on factors which Congress has 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.” Id.
 11
perimeter mining.” Knight Hawk I, 41 FMSHRC at 549, 548–
51. Second, the ALJ found MSHA failed to consider important
factors, including (1) the statutory requirement of the no-less
protection standard, (2) the failure to use tracer gas tests and
(3) the differences of opinion among the MSHA survey team
members regarding the chemical smoke test results. Id. at 552–
54. Third, the ALJ concluded MSHA’s explanation for
revoking the ventilation plan ran counter to the evidence
because the record did not establish non-compliance with the
regulations. Id. at 555–59. Moreover, the ALJ found that,
“insofar as the Secretary relies on [Program Policy Letter
(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.” Id. at 559. Based on
these deficiencies, the ALJ concluded MSHA’s revocation of
Knight Hawk’s Prairie Eagle ventilation plan was arbitrary and
capricious.

On July 23, 2020, in a 3–2 decision, the Commission
affirmed the ALJ’s decision and order. Knight Hawk II, 42
FMSHRC at 453–54. The Commission confirmed that the
Secretary’s decision to revoke a ventilation plan is reviewed
under the arbitrary and capricious standard. The Commission
“then determine[d] whether substantial evidence support[ed]
the [ALJ]’s finding as to whether the agency action was
arbitrary and capricious.” Id. at 445 (citing Prairie State
Generating Co. v. Sec’y of Labor, 35 FMSHRC 1985, 1989–
91 (July 2013), aff’d, 792 F.3d 82 (D.C. Cir. 2015); Sec’y of
Labor v. Mach Mining, LLC, 34 FMSHRC 1784, 1790–91
(Aug. 2012), aff’d, 728 F.3d 643 (7th Cir. 2013)). Under the
substantial evidence standard of review, in a 3–2 decision, the
Commission concluded that “substantial evidence supports the
[ALJ’s] finding that the Secretary failed to articulate a
satisfactory explanation, rationally connected to the facts,
 12
justifying a finding that [Knight Hawk’s Prairie Eagle]
ventilation plan was unsuitable.” Id. at 447.

First, the Commission concluded that the ALJ correctly
determined that MSHA does not require uniform air flow
throughout the worked-out areas in mines that conduct types of
retreat mining other than perimeter mining. Because MSHA
does not require this information from mines that do not use
perimeter mining, the Commission found “[s]uch an
informational requirement is not necessary without a showing
of need, for safety, to require travel within worked-out areas to
evaluate airflow in entries and crosscuts.” Id. at 448. In this
respect, the only potential hazard that MSHA had identified as
relevant to its ventilation survey was “the possibility of a
buildup of methane” and the Commission concluded that
MSHA presented no evidence that supported finding a risk of
methane buildup. Id. at 449. Specifically, the Commission
found that:

Although the tests conducted by MSHA were
deeply flawed, even those tests do not support
the proposition that the pattern of airflow within
perimeter cuts and through the worked-out area
created any dangers for miners. Every methane
reading in perimeter cuts and other areas
demonstrated methane levels far below the
danger threshold. MSHA’s survey did not
reveal any fact-based reasons to suspect that
ignitions might arise as a result of the
ventilation plan.

Id. (footnote omitted). Accordingly, the Commission
concluded “substantial evidence supports the [ALJ]’s finding
that the Secretary failed to rebut Knight Hawk’s testimony
regarding the low risk of dangers associated with methane
 13
buildup in the mine at issue.” Id. at 451. Simply put, “MSHA’s
investigation did not show any prospect of an ignition or lack
of oxygen in the mine.” Id. at 450.

Second, the Commission determined that PPL P13-V-12
“redefined bleeder systems to include pillared areas and thus
information would now be required on airflow within such
areas.” Id. at 449. The Commission found that the PPL’s
redefinition of bleeder systems was a substantive change rather
than an interpretive rule and therefore required notice-and-
comment rulemaking. Because PPL P13-V-12 did not go
through the notice-and-comment process, the Commission
concluded that the ALJ “correctly found that it was improper
for MSHA to rely on the PPL to revoke the plan without a
reasonable fact-based finding of safety deficiencies in the
plan.” Id. at 450.

Third, the Commission agreed with the ALJ’s finding that
“MSHA failed to explain why the revocation satisfied the ‘no-
less protection’ standard under 30 U.S.C. § 811(a)(9).” Id. at
451. Finally, the Commission concluded that substantial
evidence supports the ALJ’s conclusion because “the Secretary
has not provided the necessary explanation as to why th[e
existing ventilation] plan was unsuitable either because it does
not comply with the substantive requirements of 30 C.F.R.
§ 75.374(b) or creates plausible dangers of a methane buildup.”
Id. at 452.

Two Commissioners dissented. The dissent claimed that
the majority “create[d] a new legal standard . . . that a District
Manager may only exercise his/her discretion to require
additional information in a proposed ventilation plan if he/she
can connect that specific requirement to a ‘plausible harm.’”
Id. at 454 (Jordan and Traynor, Comm’rs, dissenting) (quoting
id. at 445 (majority opinion)). Moreover, the dissent concluded
 14
that “the District Manager provided a reasonable fact-based
rationale for declining to approve Knight Hawk’s proposed
plan,” namely, “[t]he surveys demonstrated problems with
ventilating the deep perimeter cuts, and accordingly the District
Manager requested that the mine include more specific
information in its ventilation plan.” Id. at 457.

On August 7, 2020, the Secretary timely petitioned this
court for review.10 The Secretary argues that (1) the
Commission did not properly apply the arbitrary and capricious
standard; (2) substantial evidence does not support finding that
the Secretary arbitrarily revoked Knight Hawk’s Prairie Eagle
ventilation plan; and (3) in the event the Secretary’s plan
revocation was arbitrary, the appropriate remedy was remand,
not reinstatement of the previously approved plan. Knight
Hawk responds that (1) the Commission applied the proper
standard of review; (2) the ALJ’s determination that the
Secretary arbitrarily revoked Knight Hawk’s Prairie Eagle
ventilation plan is supported by substantial evidence; and (3)
the Secretary waived its appropriate remedy argument by
failing to raise the issue in its petition before the Commission.

II. ANALYSIS

A. Standard of Review

We think it important to first determine our standard of
review and, in the process, set forth the Mine Act’s unique
statutory structure for review of the Secretary’s actions. The

10
The Secretary also moved to stay the Commission’s decision
with the Commission and with our court. Both motions were denied.
See Order at 1, Sec’y of Labor v. Knight Hawk Coal, LLC, No. 20-
1299 (D.C. Cir. Sept. 17, 2020); Sec’y of Labor v. Knight Hawk Coal,
LLC (Knight Hawk III), 2020 WL 5500868, at *1 (FMSHRC Sept.
1, 2020).
 15
Commission has the authority to assign an ALJ appointed by
the Commission to hear matters arising under the Mine Act.
See 30 U.S.C. § 823(d)(1). Section 823(d) further provides that
a person adversely affected by an ALJ decision may file a
petition for discretionary review by the Commission on one or
more of five specific grounds:

(I) A finding or conclusion of material fact is
not supported by substantial evidence.

(II) A necessary legal conclusion is erroneous.

(III) The decision is contrary to law or to the
duly promulgated rules or decisions of the
Commission.

(IV) A substantial question of law, policy or
discretion is involved.

(V) A prejudicial error of procedure was
committed.

Id. § 823(d)(2)(A)(ii). The statute then directs that, “[i]f
granted, review shall be limited to the questions raised by the
petition.” Id. § 823(d)(2)(A)(iii). Accordingly, “the only
‘question’ relating to the factual findings of an ALJ that the
Commission can consider is whether those findings are
supported by substantial evidence.” Donovan ex rel. Chacon v.
Phelps Dodge Corp., 709 F.2d 86, 91 (D.C. Cir. 1983). Thus,
“[u]nlike the Administrative Procedure Act, the Commission’s
generic statute limits the agency’s review of an ALJ’s findings
of fact to an inquiry into whether they are supported by
substantial evidence.” Id. at 87 (citation omitted).

If a party petitions for review of the Commission’s
decision, we then review the ALJ’s factual findings for
 16
substantial evidentiary support. 30 U.S.C. § 816(a)(1)
(“findings of the Commission with respect to questions of fact,
if supported by substantial evidence on the record considered
as a whole, shall be conclusive” in any subsequent judicial
review proceeding).11 We accord “great deference” to the
ALJ’s credibility determinations. Sec’y of Labor v. Keystone
Coal Mining Corp., 151 F.3d 1096, 1107 (D.C. Cir. 1998). And
we review the Commission’s legal conclusions de novo. See
Black Beauty Coal Co. v. Fed. Mine Safety & Health Rev.
Comm’n, 703 F.3d 553, 558 (D.C. Cir. 2012); Keystone Coal,
151 F.3d at 1099.

The question arises whether the ALJ’s determination that
the Secretary acted arbitrarily and capriciously in revoking
Knight Hawk’s Prairie Eagle ventilation plan is a question of
law or fact. Here, however, the parties agree that we assess the
ALJ’s finding that the Secretary acted arbitrarily and
capriciously, and the Commission’s affirmance of that finding,
under the substantial evidence standard. Accordingly, we
assume, without deciding, that the substantial evidence
standard governs our review of the ALJ’s and the
Commission’s decisions regarding this dispute.

B. Commission’s Application of Arbitrary and
Capricious Standard

Before applying the substantial evidence test, we address
the Secretary’s argument that the Commission improperly

11
We have concluded that “[t]his reference to ‘the Commission’
does not focus on the Commission as distinguished from an ALJ;
indeed, in many cases the ALJ’s decision will become the decision
of the Commission for lack of further review within the agency.”
Phelps Dodge Corp., 709 F.2d at 91 n.7 (citing 30 U.S.C.
§ 823(d)(1)).
 17
applied the arbitrary and capricious standard.12 All parties
agree that the arbitrary and capricious standard applies to the
ALJ’s review of the Secretary’s revocation of Knight Hawk’s
Prairie Eagle ventilation plan. The Secretary disputes only
whether the Commission in fact applied the arbitrary and
capricious standard in its substantial evidence review of the
ALJ’s decision.

The United States Supreme Court has made clear that:

[D]ivorcing of the rule announced from the rule
applied . . . frustrates judicial review. If
revision of the . . . standard of proof can be
achieved thus subtly and obliquely, it becomes
a much more complicated enterprise for a court
of appeals to determine whether substantial
evidence supports the conclusion that the
required standard has or has not been
met. . . . Because reasoned decisionmaking
demands it, and because the systemic
consequences of any other approach are
unacceptable, the [adjudicatory body] must be
required to apply in fact the clearly understood
legal standards that it enunciates in
principle . . . . Reviewing courts are entitled to
take those standards to mean what they say, and

12
Granted, as explained infra at 19–20, the Commission applied
the substantial evidence test to the ALJ’s arbitrary and capricious
determination; it did not apply the arbitrary and capricious standard
in the first instance. We nonetheless address the Secretary’s
argument because the Commission’s understanding of the arbitrary
and capricious standard is relevant to its application of the substantial
evidence test in this context.
 18
to conduct substantial-evidence review on that
basis.

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
376–77 (1998).

The Secretary argues that the Commission imposed a
“plausible harm” requirement on him and that requirement is
inconsistent with the arbitrary and capricious standard. The
Commission’s affirmance of the ALJ’s decision uses the term
“plausible harm” twice. See Knight Hawk II, 42 FMSHRC at
445 (“[A]ny decision not to approve a ventilation plan
necessarily involves a finding by the Secretary that the plan has
a deficiency which fails to address some plausible harm to
miners from methane, dust, noxious gases, or some other
ventilation-related hazard . . . .”), 451 (“[N]ot only has the
Secretary failed to identify a plausible harm arising from the
alleged deficiencies as required to meet his burden under the
arbitrary and capricious standard, the Secretary would impose
requirements on the mine that potentially places a measure of
unnecessary exposure on [Prairie Eagle] examiners.”).

It is well-settled that, under arbitrary and capricious
review, “the agency must examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice
made.’” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962)). In response to the dissent’s claim that the
Commission created a new legal standard, the Commission
asserted that the Secretary’s articulation of a “plausible harm”
was necessary to demonstrate a rational connection between
the facts found and the choice made by the Secretary where, as
here, the choice made was to revoke a ventilation plan that the
Secretary had previously approved. See Knight Hawk II, 42
 19
FMSHRC at 446 n.22. In its subsequent denial of the
Secretary’s motion to stay the Commission’s decision, the
Commission was even more explicit:

The term “plausible harm” as used in the
decision is simply a means of expressing that if
an operator submits a plan, a determination by
MSHA finding the plan unsuitable must be
explained by a rational and reasonable
assessment of, and citation to, the facts of the
plan’s operation. . . . It is a means of explaining
the arbitrary and capricious standard.

Knight Hawk III, 2020 WL 5500868, at *3 n.4.

In any event, as noted in Part II.A, the Commission was
not charged with applying the arbitrary and capricious standard
in the first instance. The ALJ determined whether the
Secretary’s revocation of the ventilation plan was arbitrary and
capricious. The Mine Act requires the Commission, on
discretionary review, to determine only whether substantial
evidence supported the ALJ’s determination. See 30 U.S.C.
§ 823(d)(2). The Commission explicitly stated as much in its
decision. See Knight Hawk II, 42 FMSHRC at 445 (“The
current standard of review of the Secretary’s determination not
to approve a ventilation plan is under the arbitrary and
capricious standard. In turn, the Commission then determines
whether substantial evidence supports the [ALJ’s] finding as to
whether the agency action was arbitrary and capricious.”).
Accordingly, any error in the Commission’s articulation of the
arbitrary and capricious standard is now remedied via our
application of the substantial evidence test to the ALJ’s
arbitrariness determination. Cf. Allentown Mack, 522 U.S. at
376–77 (“Reviewing courts are entitled to take those standards
 20
to mean what they say, and to conduct substantial-evidence
review on that basis.”).

C. Substantial Evidence Test

We find that substantial evidence supports the ALJ’s
determination that the Secretary’s revocation of Knight
Hawk’s Prairie Eagle ventilation plan was arbitrary and
capricious. Specifically, substantial evidence supports the
ALJ’s findings that the chemical smoke test results were
unreliable and inconsistent and the Secretary ignored
disagreements among the MSHA ventilation survey team
members about the results.

“Substantial-evidence review is highly deferential to the
agency fact-finder, requiring only ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Rossello ex rel. Rossello v. Astrue, 529 F.3d
1181, 1185 (D.C. Cir. 2008) (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988)). We “may not reject reasonable
findings and conclusions, even if we would have weighed the
evidence differently.” Cumberland Coal Res., LP v. Fed. Mine
Safety & Health Rev. Comm’n, 717 F.3d 1020, 1028 (D.C. Cir.
2013). Thus, the question is “whether a theoretical ‘reasonable
factfinder’ could have reached the conclusions actually reached
by the Commission and the ALJ.” Keystone Coal, 151 F.3d at
1104 (citing United Steelworkers of Am. v. NLRB, 983 F.2d
240, 244 (D.C. Cir. 1993)). We have noted that “[r]eversal of
an agency decision under th[e] [substantial evidence] standard
is rare.” Astrue, 529 F.3d at 1185.

The Secretary first argues that it was not arbitrary to treat
ventilation plans for perimeter mining differently from other
forms of retreat mining that involve roof collapse. In this
respect, the Secretary plainly has the authority to treat
perimeter mining differently. As noted, the Congress decided
 21
that “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.” Dole, 870 F.2d at 669 (quoting S.
Rep. No. 95–181 at 25, 1977 U.S.C.C.A.N. at 3425) (emphasis
added). Accordingly, the Secretary evaluates ventilation plans
“based on each mine’s unique geology and proposed mining
system.” Prairie State, 792 F.3d at 86 (citing 30 U.S.C.
§§ 862(a), 863(o)) (emphasis added).

Here, the Secretary apparently based its ventilation plan
revocation decision on the results of a ventilation survey. The
Secretary performed similar ventilation surveys at two other
mines doing perimeter mining in the same jurisdiction as
Prairie Eagle—Gateway North and Viper. Thus, the Secretary
did not arbitrarily conduct the Prairie Eagle ventilation survey
as compared to other mines using similar perimeter mining
techniques.

The problem for the Secretary, however, is that the ALJ
did not find the Secretary’s revocation arbitrary and capricious
solely on the basis that the Secretary conducted a different
ventilation survey at a mine doing perimeter mining. And the
Commission did not affirm the ALJ on that basis. The ALJ
found the Secretary’s revocation arbitrary and capricious
because it improperly relied on inconsistent smoke test results
without addressing the “differences in the opinions and
observations from the survey team.” Knight Hawk I, 41
FMSHRC at 554. Substantial evidence supports the ALJ’s
finding that the Secretary’s revocation was arbitrary and
capricious based on that flaw.13

13
The Commission affirmed the ALJ’s arbitrariness
determination in part on this basis. See Knight Hawk II, 42 FMSHRC
at 439 (observing smoke tests from 44-foot distance “generated
 22
As noted, the Secretary apparently relied exclusively on
the ventilation survey results to support his revocation
decision. See Knight Hawk I, 41 FMSHRC at 543 (District
Manager “Burns verified that nothing [at Prairie Eagle] had
changed at all since 2010, except for the ventilation study”);
Knight Hawk II, 42 FMSHRC at 443 (ALJ “found that
MSHA’s decision to revoke the operator’s ventilation plan
rested on the survey results”). Prairie Eagle’s previously
approved ventilation plan had been in place for 12 years
without serious incident. With this backdrop, the 2018
ventilation survey’s diminished credibility undermines its
capability to provide the necessary rational connection between
the facts found and the choice made by the Secretary.

Specifically, at the administrative hearing, a Knight Hawk
witness testified that there was disagreement among MSHA
team members when an MSHA engineer said there was
perceptible movement from the smoke test but Beiter said there
was no movement.14 Knight Hawk’s witness “assume[d] [the
disagreements] were marked down as no movement” because

disputed testimony regarding the ability to make such observations
so far away and whether MSHA supervisors asserted pressure on the
MSHA team members to make findings in accord with Team Leader
Beiter’s expectations”), 449 n.26 (ALJ’s “objections to MSHA’s
methodology are correct: the use of fatally flawed and inaccurate
smoke tests, [and] Beiter’s intimidation of Inspector Doyle-Combs
to report his suggested findings rather than her own
observations . . . are among a multitude of errors identified by the
[ALJ] and in our Decision”).
14
Another Knight Hawk witness similarly testified that there
was “[g]eneral uncertainty [among MSHA personnel] in regards to
[whether there was] movement or no movement” during the
perimeter cut chemical smoke tests. J.A. 100.
 23
Beiter “was the supervisor.” J.A. 120.15 In rebuttal, Beiter
testified that his conversations with team members should be
classified as clarifying discussions, not disputes. Beiter
claimed he was explaining proper smoke test technique to his
colleagues and repeating smoke tests in areas where he saw
inconsistent results.

The ALJ credited the testimony of Knight Hawk’s
witnesses and discredited Beiter’s testimony, finding that
Beiter “actively suppressed” disagreement within the MSHA
team. Knight Hawk I, 41 FMSHRC at 554.16 Specifically, the
ALJ found Beiter “to be, by and large, unreliable. He was
evasive and frequently avoided answering questions directly.”
Id. at 546. We accord “great deference” to the ALJ’s credibility
determinations, Keystone Coal, 151 F.3d at 1107, and thus find
that substantial evidence supports the ALJ’s finding that the
Secretary suppressed and/or ignored differences of opinion
within the MSHA ventilation survey team.

The ALJ further found that other record evidence
corroborated the conclusion that the chemical smoke tests
15
See also J.A. 112–13 (Knight Hawk witness testimony that
“[t]here 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.”).
16
See also id. at 535 (Knight Hawk witness “credibly testified
that at least one member of the [MSHA] survey team . . . 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”).
 24
performed in the perimeter cuts were unreliable. See Knight
Hawk I, 41 FMSHRC at 545 (“substantial evidence
demonstrated that the smoke tests as conducted at the mine
were unreliable”). Specifically, Beiter admitted that the
chemical smoke test results “were not always repeatable.” Id.
at 534 (citing J.A. 166). Moreover, “[t]he survey team made
observations of smoke rising approximately 44-feet away in
dimly lit perimeter cuts from areas that miners do not normally
work or travel.” Id. at 554.17 Given that the ventilation survey’s
findings involved observations of smoke movement from more
than a 40-foot distance in a dark, underground mine, it is no
surprise that there were disagreements among MSHA
personnel as to what the smoke was doing. See J.A. 147
(according to Knight Hawk’s expert witness, “one of the
biggest problems is trying to see what the smoke is doing [at]
that . . . distance in the coal mine”).

Moreover, the ALJ found that the air purity test results
obtained during the ventilation survey did not provide the
necessary rational connection between the facts found and the
choice made. The Secretary relies primarily on his conclusion
that “the risk of methane accumulation made the ventilation
plan unsuitable.” Pet’r’s Br. 44.18 But the ALJ found:

17
See also Knight Hawk II, 42 FMSHRC at 440 (“[T]he MSHA
team was attempting to see smoke movement at the end of a 40 foot
darkened tunnel from a vantage point that was approximately 44 feet
away, and the only form of illumination was from a pair of cap lights
on the probe itself. Not unexpectedly, therefore, the results of the
smoke tests were not always repeatable.”) (citations and footnote
omitted).
18
See also Knight Hawk II, 42 FMSHRC at 444 n.20 (“MSHA’s
only expressed concern with the perimeter cuts was the possibility of
methane in those cuts . . . .”).
 25
Concerning air quality, the [MSHA ventilation]
report stated that the highest concentration of
methane was 0.12% and that the lowest
concentration of oxygen was 20.2%. 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[(a)].

Knight Hawk I, 41 FMSHRC at 536 (citations omitted).19 That
is not to say that these objective air quality readings, standing
alone, provide substantial evidence supporting the ALJ’s
determination that the Secretary’s revocation decision was
arbitrary and capricious. As the Secretary points out, “what is
true generally or at a particular point in time is not true
invariably, and methane can be encountered at any time.”
Pet’r’s Br. 45. But where, as here, the objective evidence—the
above air purity readings—does not undermine the ALJ’s
finding that the subjective evidence relied on by the Secretary
was unreliable, inconsistent and ignored opposing viewpoints,
substantial evidence supports the ALJ’s arbitrary and
capricious determination.

Accordingly, substantial evidence supports the ALJ’s
finding that the Secretary’s reliance on the smoke test results
to revoke Knight Hawk’s Prairie Eagle ventilation plan was
arbitrary and capricious. We again accord great deference to
the ALJ’s credibility determinations, which provide substantial

19
See also Knight Hawk II, 42 FMSHRC at 443 (“MSHA took
methane readings throughout the section. In all these methane
measurements taken at sites in the various entries, crosscuts, and
fullest extent of the perimeter cuts, there was no hint of a buildup of
methane. Indeed, the methane measurements taken by MSHA at
various points in the area were far below any danger threshold.”).
 26
evidence for the conclusion that the smoke test results were
inconsistent and the Secretary ignored disagreements among
MSHA survey team members regarding the results.20

D. Proper Remedy

Finally, the Secretary argues that, if we affirm the ALJ’s
and the Commission’s decisions that the Secretary’s revocation
of the ventilation plan was arbitrary and capricious, remand to
the Secretary, rather than reinstatement of the previously
approved ventilation plan, is the appropriate remedy. We lack
jurisdiction to consider the Secretary’s suggested remedy.

The Secretary concedes he “did not explicitly raise to the
Commission the issue of remedy.” Pet’r’s Br. 54. The
Secretary’s failure to raise the argument is fatal. Section
816(a)(1) limits our review of the Commission’s decision to
arguments urged before the Commission. See 30 U.S.C.
§ 816(a)(1) (“No objection that has not been urged before the
Commission shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of
extraordinary circumstances.”). The Secretary makes no
argument that extraordinary circumstances excuse his failure to
raise his remedy argument before the Commission here.
Accordingly, we reject the Secretary’s remedy argument for
lack of jurisdiction. See, e.g., Pendley v. Fed. Mine Safety &
Health Rev. Comm’n, 601 F.3d 417, 428 (6th Cir. 2010)
(“Petitioner cannot raise this objection here because he failed
to raise it before the Commission.”); see also U.S. Dep’t of the

20
Because we determine that the inconsistent smoke test results
and the Secretary’s failure to address intra-team disagreement about
the results provide substantial evidence supporting the ALJ’s
determination that the Secretary’s revocation decision was arbitrary
and capricious, we do not reach the other bases on which the ALJ
and the Commission rejected the Secretary’s revocation decision.
 27
Treasury v. FLRA, 670 F.3d 1315, 1319 (D.C. Cir. 2012)
(treating as jurisdictional statutory language in the Federal
Service Labor–Management Relations Act that is nearly
identical to the language in 30 U.S.C. § 816(a)(1)).

For the foregoing reasons, the Secretary’s petition for
review is denied.

So ordered.