                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2008

Cumberland Coal Res v. Secretary of Labor
Precedential or Non-Precedential: Precedential

Docket No. 06-4192




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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                    No: 06-4192
                  _______________

      CUMBERLAND COAL RESOURCES, LP,

                              Petitioner,

                         v.

  FEDERAL MINE SAFETY AND HEALTH REVIEW
               COMMISSION;
SECRETARY OF LABOR, MINE SAFETY AND HEALTH
          ADMINISTRATION, (MSHA)

                          Respondent.
                  _______________

       On Petition for Review of a Decision of the
   Federal Mine Safety and Health Review Commission
(No. PENN 2004-73-R, 2004-74-R, 2004-75-R, 2004-85-R,
     2004-86-R, 2004-87-R, 2004-88-R, 2004-104-R
            2004-105-R, 2004-181, 2005-8)
                   _______________

              Argued November 8, 2007
  Before: SCIRICA, Chief Judge, AMBRO and JORDAN,
                    Circuit Judges

                  (Filed February 15, 2008)
                      _______________

Karen L. Johnston
Jackson Kelly
1099 18 th Street - #2150
Denver, CO 80202

R. Henry Moore [ARGUED]
Jackson Kelly
401 Liberty Avenue - #1340
Pittsburgh, PA 15222
       Counsel for Petitioner

John T. Sullivan
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, NW - #9500
Washington, DC 20001

Melissa Bowman [ARGUED]
United States Department of Labor
Office of the Solicitor
1100 Wilson Blvd. - 22 nd Fl.
Arlington, VA 22209
       Counsel for Respondent
                       _______________



                                2
                  OPINION OF THE COURT
                      _______________

JORDAN, Circuit Judge.

        Cumberland Coal Resources, LP (“Cumberland”)
petitions for review of the August 29, 2006 decision of the
Federal Mine Safety and Health Review Commission (the
“Commission”) affirming the decision of an Administrative
Law Judge (the “ALJ”) that upheld three citations issued to
Cumberland by inspectors of the Federal Mine Safety and
Health Administration (“MSHA”) on January 16, 2004,
February 4, 2004, and February 7, 2004. Cumberland Coal
Resources, LP v. Sec’y of Labor, Mine Safety & Health
Admin., 27 F.M.S.H.R.C. 295 (2005) (ALJ) (“Cumberland
I”), aff’d, 28 F.M.S.H.R.C. 545 (2006) (“Cumberland II”).
We will deny the petition, and in so doing affirm the
Commission’s decision.

I.    BACKGROUND

      A.     Factual Background

             1.     Longwall Mining and Bleeder
                    Ventilation

       This case grows out of problems encountered while
Cumberland was using a technique called “longwall mining”
to extract coal from a mine in Greene County, Pennsylvania.
Longwall mining involves the use of cutting machines to
shear coal from one face of a large rectangular block, or

                              3
panel, of coal. In preparing to engage in longwall mining, a
number of tunnels, sometimes called “entries,” are created in
a coal seam, offsetting the block of coal to be mined. Some
of these entries are “travelable,” meaning that people may
safely move through them to access the mine. Mining
equipment is installed directly adjacent to one of the walls of
the block of coal, which wall, though it is in this instance one
of the two of shorter width, becomes known as the “longwall
face” and is the surface from which the coal is severed.

        In addition to the shearer that severs the coal from the
longwall face, the mining equipment also includes conveyor
belts to transport the coal. As the cutting head of the shearer
moves back and forth across the longwall face, severed coal
falls onto the first conveyor belt, which is positioned parallel
to the face and transports the coal to a stage loader. The stage
loader in turn feeds the coal onto another conveyor belt
system for removal from the mine. The end of the longwall
face towards which the first conveyor belt directs the severed
coal for removal is called the “headgate,” and entries on that
side of the panel are “headgate entries.” The opposite end is
called the “tailgate,” and the entries there are “tailgate
entries.”

        Longwall mining requires the use of hydraulic roof
supports, or shields. These shields support the roof over the
area being mined, advancing with the longwall face as the
coal is removed. As the shields are moved, the unsupported
roof material falls behind them to create what is called the
“gob.” Though it has a nontechnical ring, the word “gob” is a
term of art meaning “the space left by the extraction of a coal

                               4
seam into which waste is packed or the immediate roof
caves.” (Respondent’s Brief at 8 n.6 (citing Am. Geological
Inst., Dictionary of Mining, Mineral and Related Terms 239
(2d ed. 1997)).) In short, the term is used to describe the area
behind the shields where coal has been extracted and the roof
has been permitted to cave in. The gob is also sometimes
referred to as the “worked-out area” or the “mined-out area.”

       Because methane gas, which is noxious and potentially
explosive, is released during mining, a “bleeder system” or
“bleeder ventilation system” is used to ventilate worked-out
areas. “Bleeder entries” are integral to the bleeder system,
serving as special air courses, or pathways, designed to
remove methane from areas where mining has resulted in the
extraction of a substantial portion of the coal.1 The bleeder
system dilutes methane coming from the gob with fresh air
coming through the bleeder entries. The entries may be
connected to one another by “crosscuts,” which are small
passageways usually driven at right angles to the entries. Air
containing higher levels of methane exits the gob and enters
the bleeder entries through connector entries that may contain


  1
   More technically, the bleeder entries are defined as
“[p]anel entries driven on a perimeter of a block of coal being
mined and maintained as exhaust airways to remove methane
promptly from the working faces to prevent buildup of high
concentrations either at the face or in the main intake
airways.” (Respondent’s Brief at 6 n.4 (citing Am. Geological
Inst., Dictionary of Mining, Mineral and Related Terms, 55
(2d ed. 1997)).)

                               5
adjustable ventilation control devices. The points at which air
from the gob goes into the bleeder entries can be used for
measuring methane concentrations and hence are called
“bleeder evaluation points,” or “BEPs.”

              2.     Cumberland Mine

         Cumberland operates Cumberland Mine, a large
underground coal mine in western Pennsylvania. The mine
has the unfortunate distinction of being “gassy,” which means
that it typically liberates more than 1,000,000 cubic feet of
methane in a twenty-four hour period and consequently
requires spot inspection every five days by representatives of
MSHA. 30 U.S.C. § 813(I). In a gassy longwall mine,
methane is liberated from the longwall face that is being
mined, as well as from within the gob. As previously noted,
bleeder ventilation systems are intended to dilute and remove
the liberated methane.2

       This case involves ventilation problems associated
with the forty-ninth longwall panel at Cumberland Mine, also


  2
    Methane emanating from within the gob has to move some
distance before it is diluted by the bleeder system. Areas
close to the rubble, or fallen material in the gob, might
contain high concentrations of methane, which, perhaps
counterintuitively, makes for less hazard of an explosion.
While Methane may be liberated from coal in concentrations
at or near 100%, the explosive range of methane-air mixtures
is from 5% to 15%.

                              6
known as the “No. 49 longwall panel” or “LW49.” LW49 is
12,000 feet long by 1,250 feet wide and is the largest panel
Cumberland has ever undertaken to mine. Cumberland I, 27
FMSHRC at 315.

       Pursuant to 30 C.F.R. § 75.370(a)(1), a mine operator
must submit a ventilation plan to MSHA for approval before
beginning to mine. Section 75.370(a)(1) provides, in
pertinent part:

       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 ... .

The ventilation plan for LW49 was submitted to MSHA on
November 7, 2003. The type of ventilation system proposed
was a “wraparound” system that would circulate bleeder air
by using fans already in place for other mining operations 3 to
create a pressure differential that would draw air towards and
across the longwall face. Cumberland chose the wraparound
system over a more conventional “bleeder fan” system, which
would have drawn air to a bleeder fan and shaft that was to
have been installed at the back of the area that would become


  3
   According to an employee of MSHA, the existing fans
used to drive the wraparound bleeder system for LW49 were
three and a half miles away from the panel. (App. at 257-58.)

                               7
the gob.4 Though Cumberland had originally planned to use a
bleeder fan system at LW49 and had laid out the entries
around the panel with that in mind, it abandoned those plans
when it became clear that the bleeder fan could not be
installed and operational by the time Cumberland wanted to
begin mining.

       No matter what system it had chosen, Cumberland
knew it was obligated to comply with 30 C.F.R. §
75.334(b)(1), which sets forth a mandatory safety standard
every ventilation system must meet:

      During pillar recovery a bleeder system shall be
      used to control the air passing through the area
      and to continuously dilute and move methane-
      air mixtures and other gases, dusts, and fumes
      from the worked-out area away from active
      workings and into a return air course or to the
      surface of the mine.


  4
   The wraparound bleeder system brought the bleeder air
inby, toward the working face, while traditional ventilation
bleeder systems take the bleeder air outby, away from the
longwall panel. See also Cumberland I, 27 F.M.S.H.R.C. at
297 (explaining airflow of wraparound system). “Inby”
means “toward the working face, or interior, of the mine”;
“outby” means “away from the face, ... toward the mine
entrance.” (Respondent’s Brief at 7 n.5 (citing Am.
Geological Inst., Dictionary of Mining, Mineral and Related
Terms, 276, 383 (2d ed. 1997)).)

                              8
       MSHA approved Cumberland’s wraparound
ventilation plan on December 9, 2003, but only for the first
8,000 feet of the panel.5 Mining of LW49 began on
December 28, 2003. From January 4 to 11, 2004, in what
seems to have been an effort to deal with ventilation
difficulties, Cumberland made three changes to the ventilation
system without seeking prior approval from MSHA.6 On
January 16, MSHA inspectors conducted a ventilation survey
of LW49 and issued Citation No. 7083200, alleging a




  5
    The letter from MSHA to Cumberland does not indicate
what steps Cumberland or MSHA would take after the first
8,000 feet of mining was completed, though the ALJ noted
that Cumberland anticipated the creation of another
ventilation shaft that would enhance air circulation.
Cumberland I, 27 FMSHRC at 297. LW49 was 12,000 feet in
length, an unusually large block of coal to ventilate with a
wraparound system. During the hearing before the ALJ, the
Chairman of the Health and Safety Committee for Local
Union No. 2300 testified that at Cumberland Mine, “the
longest panel that they had utilizing the wraparound system
was about 9,500 feet, but we have had other mines [on the
same coal seam as the Cumberland Mine] where it’s only
maybe four or five thousand feet with a wraparound system
where we have had serious ventilation problems.” (App. 243,
p. 140:4-10.)
  6
   MSHA issued a citation for those unapproved changes to
the mining plan. That citation is not before us on appeal.

                              9
violation of section 75.334(b)(1). The January 16 citation
stated:

       The bleeder system for the active LW49
       longwall section ... was determined to be
       ineffective in controlling the flow of air through
       the bleeder system to continuously dilute and
       move methane-air mixtures from the gob and
       away from the active workings ... . Coal will
       not be mined with the longwall until ventilation
       changes are made to correct the bleeder system
       deficiencies and a plan submitted and approved
       by the District Manager showing the revised
       bleeder system.

(App. 90; 449-51.)

       Several meetings then took place between Cumberland
and MSHA personnel to discuss the ventilation changes
necessary to cure the problem noted in the January 16 citation.
MSHA required those changes because it “believed that the
air flows measured in the ventilation surveys indicated that
the BEPs on the tailgate did not provide accurate information
on conditions in the #2 entry ... . [MSHA] insisted that
additional monitoring points be established at crosscuts #82
and #85.” Cumberland I, 27 F.M.S.H.R.C. at 302. After
several meetings between MSHA and Cumberland, in
response to MSHA’s concerns, “Cumberland reluctantly
submitted a proposed ventilation plan incorporating the
changes required by MSHA.” Id. at 303. The revised plan
provided, in pertinent part, that “[c]ontinuous monitoring will

                              10
take place in the [tailgate] at BEP30, BEP30A, BEP30B,
85xcut #2 to #1 entry ... . The monitoring will be on a ‘roving’
basis and the quality, quantity and airflow direction will be
recorded ... .” Id. at 303-04. The revised ventilation plan was
submitted to and approved by MSHA on January 21, 2004.

        In addition to discussing with Cumberland the
appropriate response to the January 16 citation, MSHA
continued its mandatory spot inspections at the mine. On
February 4, 2004, it issued Citation No. 7067000, alleging
another violation of section 75.334(b)(1).7 The February 4
citation focused on the monitoring points in the No. 2 entry
that had been added pursuant to the revised ventilation plan.
Specifically, the citation observed that

       [t]he bleeder system for the active LW49
       longwall section ... was determined to be
       ineffective in controlling the flow of air through
       the bleeder system to continuously dilute and
       move methane-air mixtures from the gob away
       from the active workings. This was due to an
       adjustment to the ventilation controls in the No.
       2 entry of the headgate side.

(App. 94-95; 454-59.)




  7
   An imminent danger order was also issued on February 4
but is not before us on appeal.

                              11
       MSHA found yet another violation of section
75.334(b)(1) on February 7, 2004, after detecting “methane ...
on the tailgate side, in the No. 2 entry, at the No. 85 crosscut
at 5.0%.” (App. 96.) That violation formed the basis for
Citation No. 7067003, which stated:

       The bleeder system for the active LW49
       longwall section ... was determined to be
       ineffective in controlling the flow of air through
       the bleeder system to continuously dilute and
       move methane-air mixtures from the gob and
       away from the active workings. This is a
       contributing factor to [an imminent danger
       order] 8 ... .

(Appx. 96; 460-63.) On February 13, 2004, Cumberland
announced that it would idle LW49 until it could abandon the
wraparound ventilation system and implement a bleeder fan
ventilation system. After Cumberland converted to the new
system, the mine ceased having ventilation problems.

       B.     Procedural Background

       This proceeding concerns the January 16, February 4,
and February 7 citations. Cumberland contested them and,
following a hearing, the ALJ issued a decision on March 28,
2005, upholding them. Cumberland I, 27 F.M.S.H.R.C. at


  8
   Again, this imminent danger order is not before us on
appeal.

                              12
315, 327. Cumberland appealed that decision to the
Commission. On August 29, 2006, the Commission issued a
decision unanimously affirming the ALJ’s finding that
Cumberland had violated section 75.334(b)(1) on January 16,
2004. Cumberland II, 28 F.M.S.H.R.C. at 554. In an evenly
split decision issued at the same time, the Commission also
affirmed the ALJ’s finding that Cumberland had violated the
same regulation on February 4 and February 7, 2004.9 Id. at
558.

II.    JURISDICTION AND STANDARDS OF REVIEW

       We have jurisdiction to review a decision of the
Commission under section 106(a)(1) of the Federal Mine
Safety and Health Act of 1977 (the “Act”), 30 U.S.C.
§ 816(a)(1). The Commission had jurisdiction under sections
105(d) and 113(d) of the Act, 30 U.S.C. §§ 815(d) and
823(d).

       We review de novo the legal conclusions of the ALJ
and the Commission. Utah Power & Light Co. v. Sec’y of
Labor, 951 F.2d 292, 293 n.1 (10th Cir. 1991); cf. Abdul-
Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (“This
court reviews de novo issues of statutory interpretation ... .”).


  9
    The effect of a split decision is to allow the ALJ’s decision
to stand as if affirmed. Cumberland II, 28 F.M.S.H.R.C. at
558 (citing Pennsylvania Elec. Co., 12 F.M.S.H.R.C. 1562,
1563-65 (1990), aff’d on other grounds, 969 F.2d 1501 (3d
Cir. 1992)).

                               13
“The 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.” 30 U.S.C. §
816(a)(1); cf. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999) (“The Court is bound by the ALJ’s findings of fact if
they are supported by substantial evidence in the record.”).
“Substantial evidence ... means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Metro. Stevedore Co. v. Rambo, 521 U.S. 121,
149 (1997) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).

III.   DISCUSSION

        On appeal, Cumberland argues that the Commission
and the ALJ erred by holding that compliance with a
ventilation plan approved pursuant to section 75.730(a)(1) is
not a defense to a violation of section 75.334(b)(1).
Cumberland also asserts that its due process rights were
violated because it did not have adequate notice of MSHA’s
interpretation of section 75.334(b)(1). Finally, Cumberland
argues that the January 16, February 4, and February 7
citations are not supported by substantial evidence. We
address each of these arguments in turn.

       A.     Cumberland’s Compliance with an Approved
              Ventilation Plan is Not a Defense to a
              Violation of Section 75.334(b)(1)

       Cumberland argues that the ALJ and the Commission
erred in determining that section 75.334(b)(1) could be

                              14
violated even when a mine operator is complying with an
approved ventilation plan. Cumberland’s theory is that
section 75.334(b)(1) imposes no duty on mine operators
beyond compliance with a ventilation plan submitted pursuant
to section 75.370(a). In other words, Cumberland asserts that
compliance with section 75.370(a) constitutes an absolute
defense to an alleged violation of section 75.334(b)(1). The
Secretary responds that Cumberland’s argument cannot be
correct because it would render section 75.334(b)(1)
superfluous.

        The ALJ rejected Cumberland’s position, following an
earlier administrative decision in Sec’y of Labor, Mine Safety
& Health Admin. v. Plateau Mining Corp., 25 F.M.S.H.R.C.
738, 746 (2003), aff’d, 28 F.M.S.H.R.C. 501, 2006 FMSHRC
LEXIS 152 (2006).10 Cumberland I, 27 F.M.S.H.R.C. at 311.
The ALJ stated that Cumberland’s ventilation plan for LW49
may have represented its “best educated prediction” of how
the panel could be ventilated in conformance with mandatory
safety standards, but, despite MSHA’s approval of the plan,
“there was no guarantee that [the plan] would work
effectively ... .” Id. The ALJ ultimately determined that,
independent of the ventilation plan approval process,
Cumberland was obligated to comply with section
75.334(b)(1) and could be charged with violating that


  10
     The Commission’s decision in Plateau Mining is
currently under review in the United States Court of Appeals
for the Tenth Circuit. Sec’y of Labor, Mine Safety & Health
Admin. v. Plateau Mining Corp., No. 06-9582 (10 th Cir.).

                             15
regulation even while fully complying with the approved
ventilation plan. Id. (citing Utah Power & Light Co. v. Sec’y
of Labor, 12 F.M.S.H.R.C. 965, 969, aff’d, 951 F.2d 292
(10th Cir. 1991)).

        The Commission unanimously affirmed the ALJ’s
decision in that regard. Cumberland II, 28 FMSHRC at 553.
It agreed that “an operator cannot avoid a finding of violation
of section 75.334(b)(1) by arguing that it was complying with
the provisions of its ventilation plan.” Id. The Commission
characterized section 75.334 as containing “general
provisions ... which set forth a level of safety required at all
mines,” and concluded that, because conditions in a mine may
change unexpectedly, “compliance with specific ventilation
plan provisions may not necessarily assure that the general
protections afforded by ventilation regulations are being met.”
Id. at 553-54.

      The ALJ here relied on the opinion expressed by
another ALJ in the Plateau Mining case:

       [A] mine’s approved ventilation plan represents
       the minimum specifications for ventilating the
       mine. A mine operator may violate section
       75.334(b)(1) even though it is fully complying
       with the approved ventilation plan. First, the
       mine operator has better knowledge of the
       conditions that will be encountered when
       mining commences. More importantly, because
       an underground coal mine is a dynamic
       environment, a mine operator must be

                              16
      constantly vigilant when monitoring the
      conditions underground and it must make
      changes to its ventilation system as conditions
      warrant.

 Plateau Mining, 25 FMSHRC 738, 759. On review of the
Plateau Mining decision, the Commission endorsed that
reasoning, analogizing to another administrative decision,
Utah Power & Light, 12 FMSHRC at 969, and stating:

      [We have] previously held that compliance with
      a mine’s roof or dust control plan does not
      preclude a finding of violation of the underlying
      roof or dust control regulations [in Utah Power
      & Light] ... . Similarly, an operator cannot
      avoid a finding of violation of section
      75.344(b)(1) by arguing that it was complying
      with the provisions of its ventilation plan.
      Rather, an operator is required to comply with
      ventilation plan provisions, which encompass
      conditions specific to a mine, in addition to the
      more general requirements of section 75.334,
      which establish a general baseline which all
      mines must meet. Conditions in a mine may
      change unexpectedly so that compliance with
      specific ventilation plan provisions may not
      necessarily assure that the general protections
      imposed by ventilation regulations are being
      met. Thus, an operator is required to address its
      bleeder system if the bleeder system is not
      effectively controlling air through the worked-

                             17
       out area as required by section 75.334, even if
       the operator is complying with the terms of its
       ventilation plan.

 2006 FMSHRC LEXIS 152 at *27-28; see also id. at *78 (“...
[W]e do not agree with Plateau’s position that complying with
an approved ventilation plan is an absolute defense to a
citation under section 75.334(b)(1) ... .”).

        During oral argument, Cumberland’s counsel conceded
that, were we to find the Plateau Mining case persuasive,
Cumberland’s argument that compliance with an approved
ventilation plan constitutes a defense to a violation of section
75.334(b)(1) would fail. We do indeed find the reasoning in
Plateau Mining persuasive, conclusively so, and we thus find
the reasoning and analyses of the ALJ and the Commission in
this case to be sound. Principles of statutory construction
dictate that a regulatory scheme should be read as a whole, so
that “effect is given to all its provisions ... .” Silverman v.
Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 31 (3d Cir.
1995) (citation omitted). Sections 75.730 and 75.334(b)(1) by
their terms impose different responsibilities on mine operators
– the former to prepare and submit a ventilation plan for
approval, and the latter to ensure that methane is being
effectively removed from the gob by a bleeder system.
Following the Commission’s decisions in Plateau Mining and
Utah Power & Light, and considering the reasoning set forth
in the record, we hold that the Commission did not err in
affirming the ALJ’s decision that compliance with an
approved ventilation plan pursuant to section 75.370 is not a
defense to a violation of section 75.334(b)(1).

                              18
      B.     Cumberland Had Adequate Notice of MSHA’s
             Interpretation of Section 75.334(b)(1)

        Next, Cumberland contends that its right to due
process was violated because, without first giving it fair
notice, MSHA, acting for the Secretary of Labor, applied a
novel interpretation of section 75.334(b)(1) in issuing
citations related to the ventilation of LW49. More
particularly, Cumberland alleges that the citations “were
based solely on what amounts to “an unprecedented reliance
on methane levels in the gob as a basis of the citations.”
(Petitioners Reply Brief at 1; see also Petitioner’s Opening
Brief at 23, 25.) Thus, according to Cumberland, its due
process rights were violated because it could not have known
that MSHA would use such data to evaluate the effectiveness
of its ventilation system and as the basis for the issuance of
citations. The Secretary, of course, contends that Cumberland
was aware that the types of readings taken in the mine could
be used in evaluating whether the ventilation system was
operating in compliance with section 75.334(b)(1).

       The ALJ specifically addressed Cumberland’s due
process argument and determined that Cumberland was on
notice that the Secretary, through MSHA, had interpreted
section 75.334(b)(1) as requiring Cumberland to maintain an
adequate and effective ventilation bleeder system.
Cumberland I, 27 F.M.S.H.R.C. at 312 (citing RAG
Cumberland Resources, LP v. Sec’y of Labor, Mine Safety &
Health Admin., 23 F.M.S.H.R.C. 1241 (2001), aff’d, 26
F.M.S.H.R.C. 639, 647, 2004 FMSHRC LEXIS 96 (2004)).
Looking first at the January 16 citation, the ALJ noted that,

                             19
though neither party had presented evidence of MSHA having
considered in the past conditions comparable to those present
at LW49, Cumberland I, 27 F.M.S.H.R.C. at 314, that was not
unexpected because “[e]ach longwall panel is, in a sense, a
unique undertaking.” Id. at 315. Rather than focusing on
whether the specific types of measurements at issue here had
ever been used before, the ALJ approached the notice issue
with the fundamental purpose of the regulation in mind:
“[t]he overriding considerations on the fair notice question are
the [mine] conditions’ effect on safety under the
circumstances presented by LW49.” Id. On the evidence
presented, the ALJ concluded “that a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard [embodied in section 75.334(b)(1)]
would have recognized that the bleeder system was
ineffective on January 16, 2004.” Id.

       As to the February 4 and 7 citations, the ALJ observed
that Cumberland had submitted a revised ventilation plan to
MSHA after MSHA issued the January 16 citation. MSHA
had mandated changes to Cumberland’s ventilation plan
because it “believed that the air flows measured in the
ventilation surveys indicated that the BEPs on the tailgate did
not provide accurate information on conditions in the #2
entry. Consequently, [MSHA] insisted that additional
monitoring points be established at crosscuts #82 and #85.”
Cumberland I, 27 F.M.S.H.R.C. at 302. After several
meetings between MSHA and Cumberland, “Cumberland
reluctantly submitted a proposed ventilation plan
incorporating the changes required by MSHA,” which was
approved on January 21, 2004. Id. at 303. The revised plan

                              20
provided that “[c]ontinuous monitoring will take place in the
[tailgate] at BEP30, BEP30A, BEP30B, 85xcut #2 to #1 entry
... . The monitoring will be on a ‘roving’ basis and the
quality, quantity and airflow direction will be recorded ... .”
Id. at 303-04. Based on these facts, the ALJ found that
“Cumberland cannot reasonably assert that it could not have
anticipated the possibility that data pertinent to LW49 bleeder
system’s performance, including conditions in the #2 entry,
would not have been used to evaluate [the system’s]
effectiveness.” Id. at 314.

       All of the members of the Commission agreed with the
ALJ’s understanding of the notice provided by section
75.334(b)(1) and the commonsense application it has
previously been given. Rejecting the argument that
Cumberland lacked notice with respect to the January 16
violation, the Commission stated, “we recognize that section
75.334(b)(1) is broadly worded ... . ... [Nonetheless], [t]he
appropriate test is not whether the operator had explicit prior
notice of a specific prohibition or requirement, but whether a
reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the
standard.” Cumberland II, 28 F.M.S.H.R.C. at 554.

        The Commissioners’ unanimous agreement on that
point thus makes particularly puzzling their parting of the
ways with respect to the February 4 and 7 citations. The
evenly split vote of the Commissioners meant that the the
ALJ’s decision with respect to those citations stood, see supra
n. 9, but that outcome was not reached without a vigorous,

                              21
further discussion of the issue of notice. Commissioners
Young and Jordan 11 found that Cumberland’s “lack of
adequate notice” defense as to the February citations was
untenable because Cumberland’s January 21 ventilation plan
“clearly designated numerous locations within the bleeder
system, including the locations at issue here, as monitoring
points where data was to be collected.” Id. at 561.
Commissioner Young wrote that, while Cumberland could
have “refused to adopt what it...ha[s] characterized as an
‘unprecedented’ monitoring of the gob ... and then challenged
the citation, it instead faxed to MSHA its revised ventilation
plan including the provision it now challenges on notice
grounds.” Id. at 562. Therefore, Cumberland should have
expected that MSHA would use the data collected at these
points to evaluate the bleeder system. In a compelling
summary of the point, he said:



  11
     Commissioner Jordan, who is no relation to the author of
this opinion, concurred with Commissioner Young’s analysis
and conclusion affirming the portion of the ALJ’s decision
holding that Cumberland violated section 75.334(b)(1) on
February 4 and 7. Cumberland II, 28 F.M.S.H.R.C. at 571.
Commissioner Jordan wrote separately to dissent from the
majority’s decision to vacate the imminent danger orders
issued on those dates, a decision which is not before us on
appeal. Id. For ease of reference, we generally refer only to
Commissioner Young when discussing the decision that
reflects the conclusion of both Commissioner Young and
Commissioner Jordan.

                             22
       If continuous effectiveness is, as we have held,
       a requirement for all bleeder systems,
       Cumberland cannot assert that it lacked notice
       when monitoring points established by MSHA
       to evaluate system effectiveness (with the
       operator’s acceptance) were, in fact, used to
       determine whether the bleeder system was
       operating effectively.

Id. at 562.

        Chairman Duffy and Commissioner Suboleski
dissented, arguing “that Cumberland was not provided
sufficient notice concerning what constituted a violation of
[section 75.334(b)(1)] and how certain data would be used by
MSHA for enforcement purposes” with respect to the
February 4 and 7 citations. Id. at 564. The two dissenters felt
that the ALJ failed to “fully comprehend the critical fact that
the high methane readings on February 4 and 7 took place, not
in a travelable bleeder entry or at a designated BEP, but in the
gob – an area in which the presence of explosive methane
mixtures was not unexpected or contrary to any regulation.”
Id. at 566. In response to Commissioner Young’s observation
that Cumberland submitted a revised ventilation plan
including such monitoring of the gob at crosscut 85 in the No.
2 tailgate entry, the dissenting Commissioners said that,
“[a]lthough the revised ventilation plan called for the pipes to
be installed, the plan does not provide that a reading
exceeding 4.5% at crosscut 85 indicates that the system is
functioning ineffectively or that section 75.334(b)(1) has been
violated.” Id. at 566, n.2. They agreed with Cumberland that

                              23
MSHA took “the unprecedented approach of relying on
methane readings in the gob” and did not provide adequate
notice to Cumberland as to how it would interpret and apply
section 75.334(b)(1) and the January 21 revised ventilation
plan, or as to what criteria it would use in issuing citations.12
Id. at 567.

        Cumberland echoes the dissenters in arguing against
the adequacy of the notice it received regarding the February
citations, but Cumberland asserts that, even in issuing the
January 16 citation, MSHA was applying a new and
surprising interpretation of section 75.334(b)(1) by looking to
methane and pressure readings from the gob as a basis for
finding a violation of the regulation. According to
Cumberland, “the plain language of the standard [set forth in
section 75.334(b)(1)] imposes two requirements: 1) that


  12
   Specifically, the dissenters said that
     Cumberland could not reasonably expect that MSHA
     would be taking the unprecedented approach of treating
     high methane readings in the gob itself as violating its
     regulations and that the new monitoring points would be
     used primarily as enforcement weapons ... . In short,
     when MSHA decided to issue citations for methane levels
     in the gob rather than at the bleeder entries and BEPs,
     Cumberland was entitled to notice of the change in the
     interpretation and application of the standard and the
     ventilation plan. We would vacate the February 4 and 7
     citations for lack of notice.
Cumberland II, 28 FMSHRC at 569-70.

                                24
methane air mixtures shall be continuously diluted; and 2) that
the methane-air mixtures shall be moved away from active
workings for transport out of the mine.” (Petitioner’s
Opening Brief at 22-23.) Cumberland recognizes that
precedent from the Commission holds that “[s]ection
75.334(b)(1) contains an adequacy or effectiveness
requirement with respect to the amount of methane
dilution[,]” but Cumberland complains that nothing in the
regulation addresses methane levels in the gob. (Id. at 27.)

        We are not persuaded by Cumberland’s argument or
the reasoning of the dissenting Commissioners upon which it
largely depends. As the Commission has persuasively said
before in rejecting exactly the type of argument Cumberland
makes here, “a regulation must be interpreted so as to
harmonize and not to conflict with the objective of the statute
it implements. ... Thus, ... a bleeder system must effectively
ventilate the area within the bleeder system and protect active
workings from the hazards of methane accumulations.” RAG
Cumberland Resources, 26 F.M.S.H.R.C. at 647, 2004
FMSHRC LEXIS 96. By its own admission, Cumberland
knew that its responsibility was not simply to move methane
around in the mine; it was to make the mine safe. As an
experienced mine operator, Cumberland knew full well that
there were significant problems with the wraparound bleeder
ventilation system in place at LW49. The panel had not been
designed for a wraparound system; no panel of that size had
ever had a wraparound system; and problems with the LW49
wraparound system had been manifest from practically the
first day of operations, problems so significant, in fact, that
Cumberland was required to submit a revised plan to MSHA

                              25
after the January 16 inspection and citation. The ALJ aptly
observed that Cumberland’s due process defense cannot
succeed since, “[t]aken to its logical conclusion, it would
mean that an operator could continue mining in a longwall
panel with an inadequate and ineffective bleeder system,
because the specific type of data upon which MSHA relied to
determine that the system was ineffective had not been
previously used to evaluate such systems.” Cumberland I, 27
F.M.S.H.R.C. at 314. We agree with the ALJ’s conclusion
that “[s]uch a result could not be more contrary to the
legislative and regulatory scheme and is simply
unacceptable.” Id.

       The monitoring was in accordance with Cumberland’s
plan and, subsequently, its revised plan. Measuring points in
the No. 2 tailgate entry were added to the ventilation plan in
response to the January 16 citation, so Cumberland had to
know that MSHA was concerned about methane levels at
those points and would be monitoring them.13 Even if
relevant,14 Cumberland’s argument that it did not know


  13
    During oral argument, counsel for the Secretary stated
that she was unaware of any situation where MSHA would
require the installation of monitoring points for purposes
other than monitoring. Counsel for Cumberland did not
suggest any other purpose.
  14
    Cumberland’s arguments and the reasoning of the
dissenting Commissioners can also be viewed as not truly
aimed at the notice aspect of due process. Since everyone

                              26
MSHA would actually use the monitoring points for
enforcement purposes is simply too severe a strain on
credulity. Given the problems that developed with the
wraparound system at LW49, MSHA’s enforcement actions
under section 75.334(b)(1) should not have been surprising to
Cumberland and were in accordance with due process.

        We do not suggest that MSHA could create and
enforce rules divorced from a rational understanding of mine
safety, which seems to be what Cumberland contends
occurred here. The record, however, amply supports MSHA’s
concern, and Cumberland’s acquiescence in the revisions to
the plan undercuts any contention that enforcement based on
the agreed upon monitoring was somehow an irrational




associated with the case agrees that the point of section
75.334(b)(1) is to require an effective system for the dilution
and removal of methane, there seems no room to argue that
enforcing that regulation by measuring methane movement in
the vicinity of the mining activities at LW49 was somehow
beyond the fair notice Cumberland had of MSHA’s authority.
What is really being argued is that the evidence being
adduced to support MSHA’s enforcement activities was not
sufficient. The ALJ was correct in observing that
“Cumberland’s quarrel is, in reality, not so much with
MSHA’s consideration of data pertinent to conditions in the
#2 entry, as it is with the reasonableness of the conclusion
MSHA ultimately reached based upon that data.”
Cumberland I, 27 F.M.S.H.R.C. at 315.

                              27
government response to the problems encountered at the
mine.

       C.     The January 16, February 4, and February 7
              Citations are Supported by Substantial
              Evidence

       Finally, Cumberland argues that the January 16,
February 4, and February 7 citations are not supported by
substantial evidence. As the foregoing discussion indicates,
we disagree. The ALJ summarized the evidence that
supported MSHA’s conclusion that the ventilation system was
not functioning properly on January 16.15 Cumberland I, 27


  15
    “The January 16 ventilation survey confirmed that neither
BEP 30A, nor BEP 30, were providing reliable or useful
information as to what was occurring in a substantial and
important part of the LW49 bleeder system, the #2 entry, and
the #3 entry and adjacent rubble zone.... There was virtually
no air flow from the #3 tailgate entry into the #2 entry inby
the #83 crosscut. The pressure differential and air flow in the
#2 entry and the adjacent #3 entry was outby from the #88
crosscut, and there were high methane concentrations in those
areas. While the methane that was actually in the #2 entry
would be moved outby through BEP 30A into the bleeder
entry, the flow in the #3 entry and the adjacent rubble zone
would have been toward the face, because the overall pressure
differential from the #87 to the #83 crosscut was in that
direction. The bleeder system was not moving methane in
that substantial portion of the worked-out area away from the

                              28
F.M.S.H.R.C. at 314. In affirming, the Commission noted
that, “MSHA’s survey results indicated that the methane-air
mixture in the back corner on the tailgate side of LW49 was
not emerging from the inby BEPs. In essence, the back corner
of the tailgate was dead airspace.” Cumberland II, 28
F.M.S.H.R.C. at 554. The Commission correctly concluded
that there was substantial evidence to support the January 16
citation, since “a reasonably prudent person would have
recognized that the bleeder system failed to continuously
dilute and move the methane-air mixture from the worked-out
area away from the active workings.” Id.

       Likewise, the ALJ found that LW49's “bleeder system
was ineffective on February 4 and 7” and upheld the citations
issued on those dates. Cumberland I, 27 F.M.S.H.R.C. at
327. Commissioner Young, supported by Commissioner
Jordan, effectively affirmed 16 the holding that Cumberland
had violated section 75.334(b)(1) on February 4 and 7,
because, in his view, substantial evidence supported the ALJ’s
decision.17 Cumberland II, 28 F.M.S.H.R.C. at 558-59.



active workings.” Cumberland I, 27 FMSHRC at 314.
  16
       See note 9, supra.
  17
     Commissioner Young pointed to, inter alia, sudden
increases in methane concentrations at or near the explosive
range that were detected at the monitoring point at crosscut 85
in the No. 2 tailgate entry, sudden and significant methane
increases detected at other monitoring points along the panel’s

                              29
Though the dissenting Commissioners disagreed, id. at 564,
we conclude that the ALJ and Commissioners Young and
Jordan were correct in their assessment of the record. For
example, the ALJ recounted the following evidence:

       On both dates, there was a sudden and
       substantial rise in methane concentrations, not
       just at the #85 crosscut monitoring point, but
       virtually throughout the tailgate side of the
       bleeder system.[18] Cumberland argues that [the
       MSHA inspector] issued the orders and citations
       solely because of the readings at the #85
       crosscut monitoring point. While he testified to
       that effect, Cumberland reads too much into his
       responses to specific leading questions on cross-
       examination. I find that the better interpretation
       of his responses was that the crosscut #85
       readings were the precipitating factors for
       issuance of the orders and citations. His
       testimony, as a whole, evidences that he was



tailgate side, and the testimony of MSHA’s expert.
Cumberland II, 28 F.M.S.H.R.C. at 559-60.
  18
    The ALJ also noted that the inspector’s “evaluations of
the danger and the effectiveness of the bleeder system on
February 4 and 7 were virtually the same, i.e., he was
concerned that explosive levels of methane might be coming
out onto the face where a number of ignition sources were
present.” Cumberland I, 27 F.M.S.H.R.C. at 325.

                              30
       concerned as much about the sudden rise in
       methane readings within the system, and the
       absence of any immediate explanation for them,
       as he was about the crosscut #85 readings
       themselves. He also considered the unfolding
       events with an understanding that the bleeder
       system was fragile.

Cumberland I, 27 F.M.S.H.R.C. at 326.

        The above-quoted portion of the ALJ’s decision
addresses imminent danger orders that are not before us on
appeal, but it also pertains to the February 4 and 7 citations.
Although the imminent danger orders were ultimately
vacated, that does not mean that the facts found by the ALJ
are irrelevant to the propriety of the February citations. On
the contrary, though the standard for issuing a citation is
different than that for issuing an imminent danger order, the
facts are still the facts, and the facts here were sufficient to
justify the issuance of the section 75.334(b)(1) citations on
February 4 and 7, even if they could not support imminent
danger orders.

IV.    CONCLUSION

        For the foregoing reasons, the Commission’s August
29, 2006 decision affirming the ALJ’s March 28, 2005
decision upholding the January 16, February 4, and February
7 citations is sound, and Cumberland’s petition for review
will be denied.


                               31
