PETITIONS FOR REVIEW OF FINAL DECISIONS OF THE MINE SAFETY AND HEALTH ADMINISTRATION. Nos. 2009-MSA-00002, 2009-MSA-00003.
Marco M. Rajkovich, Jr., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, for Petitioner.
Lynne B. Dunbar, Attorney, U.S. Department of Labor, Office of the Solicitor (M. Patricia Smith, Solicitor of Labor; Heidi W. Strassler, Associate Solicitor; and W. Christian Schumann, Counsel, Appellate Litigation, with her on the brief), Arlington, Virginia, for Respondents.
Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
Andalex Resources, Inc. petitions for review of the Mine Safety and Health Administration's (MSHA) decision to revoke previously granted modifications to the application of certain mine safety regulations. Andalex contends that MSHA lacked substantial evidence to revoke the modifications and that MSHA abused its discretion in how it applied the standard for revocation. We discern no error in the agency's decision. Exercising jurisdiction under 30 U.S.C. § 811(d), we deny the petitions for review.
A. Underground mine safety regulations and Andalex's modifications
Underground coal mines present dangers to mine workers, nearby residents, and the environment. To minimize that danger, Congress created MSHA and authorized the MSHA Secretary to promulgate rules mandating health and safety standards for mines and mine workers. 30 U.S.C. § 811(a). Some of those rules are relevant in this case.
First, underground mines must have at least one sprinkler above certain pieces of equipment, including conveyor belts. 30 C.F.R. § 75.1101-8(a). Sprinklers generally must be installed at intervals less than eight feet along all conveyor lines, id., and must discharge at least 0.25 gallons of water per minute, with a sufficient reserve of water to provide a constant flow for at least ten minutes. Id. § 75.1101-8(c).
Second, MSHA generally prohibits the use of a belt air course as a return air course. That means mine operators cannot bring air into the mines using the same tunnels that take coal out of the mines on conveyor belts. Id. § 75.350(a). MSHA permits this only if the mine operator shows that using belt air would protect air quality as much as other possible ventilation sources. Id. § 75.350(b). The mine operator must also use an Atmospheric Monitoring System that will alert workers when the air quality dips below a specific level. Id § 75.350(b)(1).
Third, MSHA regulates the Atmospheric Monitoring System for malfunctions, alerts, and alarm signals. When air quality decreases to an unacceptable level, the system operator must notify investigative personnel so they can identify which system sensor has alerted and why. Id. § 75.352(a)-(b). If two or more sensors alert, then miners must almost always evacuate. Id. § 75.352(c).
Fourth, MSHA regulates diesel-powered equipment used in the mines. Although MSHA initially deems some diesel equipment " non-permissible," it still allows its use if mine operators use an approved engine with an air filter, include an approved fire extinguisher, and comply with specific fuel-system specifications, among other requirements. Id. § § 75.1907, 75.1909(a). If the non-permissible equipment is self-propelled, the mine operator must fit that equipment with a supplemental braking system that engages automatically within five seconds after the engine shuts off and that includes a fully manual control. Id. § 75.1909(c).
Fifth, MSHA regulates the installation and use of electric equipment close to pillar workings or longwall faces--areas in which miners extract coal. Mine operators must use, among other things, shielded high-voltage cables and conductors and cables of intrinsically safe circuits when they use electricity within 150 feet of a pillar or longwall face. Id. § 75.1002.
Finally, MSHA regulates other electronic equipment used in underground mines. This equipment includes junction boxes used for multiple power connections, handheld electric drills, and equipment that " is taken into or used inby the last open ...