Justices Bypass Dispute Over Standard For Review of Mine Ventilation Decision

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By Kevin P. McGowan  

April 21 --Denying an Illinois mine operator's petition, the U.S. Supreme Court April 21 declined to review whether the secretary of labor's refusal to approve a mine's ventilation plan is subject to de novo review by an administrative law judge or must be approved if the secretary did not abuse his discretion.

Mach Mining LLC, which operates an underground coal mine near Johnston City, Ill., sought review of the U.S. Court of Appeals for the Seventh Circuit's decision that the Federal Mine Safety and Health Review Commission properly applied an abuse of discretion standard and upheld the Mine Safety and Health Administration's refusal to approve Mach Mining's ventilation plan because the agency's decision was not arbitrary or capricious ( 728 F.3d 643, 2013 BL 251486 (7th Cir. 2013); 166 DLR A-13, 8/27/13).

Mach Mining said that, under the Mine Safety and Health Act and the Administrative Procedure Act, MSHA's local decision not to approve a mine operator's proposed ventilation plan should be subject to de novo review by the FMSHRC.

The Seventh Circuit decision to the contrary conflicts with Supreme Court precedent regarding the standard of review for federal agency determinations, the mine operator said. It also prevents the administrative law judges and the FMSHRC from considering the mine operator's evidence that indicated its ventilation plan provided greater safety for miners than MSHA's proposed alternative, Mach Mining said in its petition for review.

“Neither the Mine Act nor this court's administrative law jurisprudence lends support to the notion that an administrative law judge with a statutory mandate to hear enforcement disputes de novo and make findings of fact after weighing the evidence should accord deferential review to the informal decisions of a single mid-level [MSHA] official,” Mach Mining said.

Law Gives Secretary Discretion, Solicitor General Says

Opposing review on the Labor Department's behalf, the solicitor general said the Seventh Circuit's approval of an abuse of discretion standard for the FMSHRC's review of an MSHA decision regarding a mine operator's ventilation plan does not conflict with any Supreme Court or other circuit rulings.

The Seventh Circuit correctly said a de novo standard of review would undermine specific statutory language codified as 30 U.S.C. § 863(o) that gives the secretary of labor substantial discretion over the content of an approved mine ventilation plan, the solicitor general said. He noted that the labor secretary in turn has delegated that authority to MSHA.

The Seventh Circuit's holding--that Section 863(o) vests the labor secretary, not the FMSHRC, with the authority to exercise the DOL's judgment and discretion regarding the approval or modification of a mine ventilation plan--is consistent with the Supreme Court decision in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the solicitor general said.

Mach Mining “largely disregards” Section 863(o), instead focusing on 30 U.S.C. § 815(d), which provides that a FMSHRC hearing following a mine operator's challenge to an MSHA “order,” “citation” or proposed assessment of a penalty should be conducted in accordance with the Administrative Procedure Act, codified as 5 U.S.C. § 554, the solicitor general said.

But the APA principle that an agency sanction must be supported by a “preponderance of the evidence” doesn't aid Mach Mining, the solicitor general said. The MSHA sanction under review by the FMSHRC was a penalty against Mach Mining for operating without a ventilation plan, a step the mine operator intentionally took after some eight months of unsuccessful negotiations with MSHA over the ventilation plan dispute, the solicitor general said.

“It is undisputed that to support that sanction, the MSHA had to prove by a preponderance of the evidence that [Mach Mining] lacked an approved ventilation plan and was operating anyway,” the solicitor general said. “But that burden of proof was easily satisfied by the petitioner's own representations to that effect.”

“Congress did not provide for de novo [FMSHRC] review of that process, and there is no sound reason to believe that such review would enhance miner safety,” the solicitor general said.  


Nothing in Section 815(d) of the Mine Act “suggests that petitioner also was entitled to a de novo hearing on the distinct issue of whether a particular ventilation plan proposed by [Mach Mining] should have been approved by the secretary,” the solicitor general said. “To the extent that latter issue is reviewable, it must be reviewed in a manner consistent with the discretion that Section 863(o) expressly grants the secretary.”

Safety Argument Disputed

Mach Mining's argument that a deferential standard of review for MSHA's determinations regarding ventilation plans will endanger miner safety is “misplaced,” the solicitor general said.

“Had Congress believed that the secretary lacked the necessary judgment or expertise to protect miners' safety, it would not have required that the secretary evaluate and approve operators' ventilation plans,” as Section 863(o) provides, the solicitor general said.

The MSHA district manager's decision regarding Mach Mining's proposed ventilation plan followed consultation with the agency's experts and eight months of meetings and information exchanges with Mach Mining's representatives, the solicitor general noted.

“Congress did not provide for de novo [FMSHRC] review of that process, and there is no sound reason to believe that such review would enhance miner safety,” the solicitor general said.

Solicitor General Donald B. Verrilli Jr. was counsel of record for the secretary of labor.

Deference Not Supported by Statute

But Mach Mining said in a March 26 reply brief the Seventh Circuit's decision can't be squared either with the Mine Act's language or the statute's overall purpose of protecting miner safety.

Mach Mining disputed the solicitor general's assertion that “no sound reason” exists to believe a de novo hearing at the FMSHRC regarding each side's competing viewpoints regarding the ventilation plan would enhance miner safety.

“To the contrary, there is no sound reason to believe that deferential review of a decision of a [MSHA] district manager--merely because he represents the face of the enforcement agency in a particular instance--enhances miner safety,” Mach Mining said in its reply brief.  

“In a stroke, respondents dismiss the merits of the adversarial process that is at the very foundation of the American legal system,” Mach Mining said. “To the contrary, there is no sound reason to believe that deferential review of a decision of a [MSHA] district manager--merely because he represents the face of the enforcement agency in a particular instance--enhances miner safety.”

The notion that the FMSHRC and reviewing courts should defer to the “so-called 'judgment and expertise' ” of a local MSHA manager as “sacrosanct” in a mine ventilation case is “fallacious” on both practical and legal levels, Mach Mining said.

The solicitor general argued as if “some special laboratory” exists where MSHA experts “determine with scientific precision” what manner of ventilation is best for miner safety in a specific location, Mach Mining said.

“If only it were so,” Mach Mining said. “In practice, the arrogant notion that an MSHA district manager with no special education or training (as was certainly true here) knows best is deeply troubling as a matter of miner safety and health.”

As for statutory interpretation, Mach Mining said Section 815(d) provides the standards governing FMSHRC hearings and nothing in the Mine Act suggests the underlying issue of whether MSHA appropriately rejected a mine operator's ventilation plan is exempt from de novo review.

The solicitor general argued the mine operator wasn't entitled to a de novo hearing on whether its ventilation plan properly was denied by the MSHA district manager in the first place, Mach Mining noted.

But that argument “is flatly inconsistent with the governing statutory text and the right of review recognized by long-standing circuit court precedent,” Mach Mining said.

Section 863(o) also does not vest discretion with MSHA to determine what is best for a mine operator's ventilation plan, as claimed by the Seventh Circuit and the solicitor general, Mach Mining said. Rather, such deference only is due to MSHA on interpretation of its own regulation, previously subject to public notice and comment, the company said.

The “principal error” in the labor secretary's argument based on court decisions requiring discretion is “we are not dealing with the interpretation of an agency regulation,” Mach Mining said.

Daniel Wolff of Crowell & Moring in Washington was counsel of record for Mach Mining.


To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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