International Union, United Mine Workers of America v. Federal Mine Safety and Health Admin.
| Decision Date | 30 November 1990 |
| Docket Number | No. 89-1702,89-1702 |
| Citation | 920 F.2d 960 |
| Parties | , 1990 O.S.H.D. (CCH) P 29,157 INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH ADMINISTRATION and William J. Tattersall, Assistant Secretary of Labor for Mine Safety and Health, Respondents, Cyprus Emerald Resources Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Earl R. Pfeffer, with whom Mary Lu Jordan was on the brief, for petitioner.
Carl C. Charneski, Attorney, with whom Dennis D. Clarke, Counsel, Dept. of Labor, was on the brief, for respondents.
R. Henry Moore for intervenor.
Before WILLIAMS, D.H. GINSBURG and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
The Assistant Secretary of Labor has exercised his authority under Sec. 101(c) of the Federal Mine Safety and Health Act, 30 U.S.C. Sec. 811(c) (1988), to exempt Cyprus Emerald Resources Corporation's "Emerald No. 1" mine from a regulation governing the flow of air through underground coal mines. The order permits Emerald to ventilate the working face of the mine with air from the conveyor-belt area on the condition that it install carbon monoxide ("CO") detectors throughout the mine. The United Mine Workers of America ("the Union") challenges the order on a variety of grounds. On review, we leave the order in place but remand the case to the Assistant Secretary for more reasoned decisionmaking.
Underground coal mines generally have three or more "entries" leading from the surface. One of these is the "belt entry," through which coal is transported by a conveyor belt from the mine to the surface. The belt is one of the chief sources of friction, dust, and flame in any mine. Thus the practice has long been to seal the belt entry off from the working "face" of the mine, the place where the miners extract the coal.
When Congress enacted the Federal Mine Safety and Health Act of 1977, Pub.L. No. 95-164, codified in scattered sections of 30 U.S.C. Secs. 801 et seq. (1988), it adopted interim standards based on the then prevailing learning, including one requiring separation of belt entry air:
In any coal mine opened after the operative date of this subchapter, the entries used as intake and return aircourses shall be separated from belt haulage entries, and each operator of such mine shall limit the velocity of the air coursed through belt haulage entries to the amount necessary to provide an adequate supply of oxygen in such entries, and to insure that the air therein shall contain less than 1.0 volume per centum of methane, and such air shall not be used to ventilate active working places....
Sec. 303(y)(1), 30 U.S.C. Sec. 863(y)(1). The requirement is restated in the regulations of the Mine Safety and Health Administration at 30 CFR Sec. 75.326, and the parties generally refer to it by that designation.
At the same time, Congress authorized the Secretary of Labor both to replace any of the interim standards by rulemaking, Sec. 101(a) of the Act, 30 U.S.C. Sec. 811(a), and to exempt particular mines from specific standards, Sec. 101(c), 30 U.S.C. Sec. 811(c), as in this case. The Secretary exercises this power through the Mine Safety and Health Administration ("MSHA"), which is headed by the Assistant Secretary of Labor for Mine Safety and Health. See 29 U.S.C. Sec. 557a.
Since its opening in 1977 Emerald's No. 1 mine has satisfied Sec. 75.326, in part by means of a canvas barrier between the belt entry and the face. Joint Appendix ("J.A.") 5, 496-97. Claiming that the barrier had negative effects on ventilation and thus on safety, see, e.g., J.A. 44, Emerald concluded that it could improve the air flow by removing the barrier and ventilating the working face of the mine with belt air. To compensate for the associated loss in physical protection from the hazards of the belt area, Emerald proposed to install a sophisticated system of CO monitors that would enable miners to escape a developing fire more quickly than if the only warning came from conventional heat sensors. In 1982 it petitioned MSHA for a Sec. 101(c) exemption of the mine from Sec. 75.326.
In 1983 MSHA issued a favorable proposed decision on the petition, subject to a few stipulations. At the behest of the Union a Department of Labor administrative law judge reversed MSHA and denied Emerald's petition. The Assistant Secretary in turn reversed the ALJ. The Union appealed to this court, and in International Union v. MSHA, 830 F.2d 289 (D.C.Cir.1987), we reversed the Assistant Secretary's decision and remanded the case for him to explain, among other things, his interpretation of Sec. 101(c)'s standard and his application of that standard in this case. On remand, the Assistant Secretary again granted Emerald's petition.
Section 101(c) allows the Secretary to grant a petition to modify the application of a mandatory standard to a mine if she
determines that an alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard....
Sec. 101(c) of the Act, 30 U.S.C. Sec. 811(c) (emphasis added).
There is quite a range of imaginable interpretations. At one end is a view es poused by the Union (if somewhat erratically) that the "result" is essentially a specific physical one, so that for Sec. 75.326 the alternative method must achieve "a physical defense from the rapid propagation of fires." 1 On this view few if any petitions could ever be granted, and changes with a high probability of increasing miners' safety might be ruled out automatically. At the other end is a view that the "result" of a standard is equivalent to the total "measure of protection" that it affords, such that the success of a petition would depend entirely on a global calculation of its net effects on the mining environment.
The Assistant Secretary has adopted a "two-step" process that appears to fall somewhere between these poles. The first step addresses "the hazards associated with belt entry fires," J.A. 855, and the second involves consideration of all safety consequences, id. at 856. At one point he speaks of the first step as one the mine must satisfy to meet the statutory burden and the second step as "discretionary." Id. But at the same time the Assistant Secretary states firmly that determining whether a proposal provides "the same measure of protection" as the interim standard, as the statute insists, "requires an evaluation of all safety benefits resulting from the standard and all the safety benefits resulting from the alternate method." Id.; see also id. at 857-58. He supported this approach by stressing the interrelationship of the various standards with one another. Thus, he wrote, any alternative to the global view would be contrary to "the reality inherent in mining," namely, that
the mandatory standards which regulate the industry are interrelated and together provide protection from various types of mine hazards. Mandatory standards therefore cannot be examined individually through a microscope.... The true comparison in this case is between the work environment created by compliance with Sec. 75.326, versus the environment resulting from the use of belt air and the installation of a CO monitoring system.
The first step appears aimed at meeting Sec. 101(c)'s requirement that the alternative "achiev[e] the result" of the original standard in the sense of addressing the hazards at which it was aimed, the second at assuring "the same measure of protection." The "result" clause is less stringent than the requirement of the "same measure of protection," and thus is reasonably read as requiring that the modification promote the specific safety goals of the original standard (here, protection from the effects of belt entry fires) with roughly comparable success. Id. In step two, the Assistant Secretary then determines whether the modification achieves a net gain in mine safety (or at least equivalence), taking all effects into account.
As we must defer to an agency's reasonable interpretation of an ambiguous statute that it must administer, see Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), we need not pass on whether there are valid alternative readings of Sec. 101(c). The section is ambiguous at least in the sense of not clearly precluding the Assistant Secretary's approach. Thus the only question before us is whether his interpretation of Sec. 101(c) is reasonable. We find that it is.
The Union insists that the interim standards collectively sought to create a kind of "double shield": physical separation, which shields the miners from flame and smoke (Sec. 75.326), and fire detection, which provides them time to escape (Sec. 75.1103-4(b)). (As Judge Bork put it in oral argument of the 1987 case, it gives the equivalent of a belt and suspenders.) As the Union sees it, Emerald's petition merely replaces one form of fire detection for another (CO detectors for the prescribed heat sensors) and rescinds the other method, physical separation.
The obvious trouble with the Union's position is that under it any petition that proposes ventilating the face with belt air must be rejected even if it demonstrably improves net mine safety--even if the enhancement in fire detection clearly offsets the losses from removal of the shield. Granted, Congress was concerned about specific mine safety problems, and the parties agree that particular risks--those of belt fires--were the focus of Sec. 75.326. But it also recognized that its expertise was limited and subject to obsolescence; thus the delegation of power to exempt mines from the interim standards where appropriate. Congress could not have intended for its...
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