International Union, United Mine Workers of America v. Federal Mine Safety and Health Admin., 89-1755

Decision Date26 April 1991
Docket NumberNo. 89-1755,89-1755
Citation931 F.2d 908
Parties, 1991 O.S.H.D. (CCH) P 29,322 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, Jim Walter Resources, Inc., Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Review of Order of the Federal Mine Safety and Health Administration.

George N. Davies, with whom Robert H. Stropp, Jr. was on the brief, Birmingham, Ala., for petitioner.

Colleen A. Geraghty, Atty., Dept. of Labor, with whom Dennis D. Clark, counsel, Dept. of Labor, was on the brief, Washington, D.C., for respondents.

H. Thomas Wells, Jr., with whom David M. Smith was on the brief, Birmingham, Ala., for intervenor.

Before BUCKLEY, WILLIAMS and THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge CLARENCE THOMAS.

CLARENCE THOMAS, Circuit Judge:

The United Mine Workers of America challenges a decision of the Assistant Secretary of Labor for Mine Safety and Health granting the petitions of Jim Walter Resources, Inc. to modify a mandatory safety standard. The modification exempts Jim Walter's Number 3 and Number 4 mines in Jefferson County, Alabama from 30 C.F.R. Sec. 75.1002, which bans the use of high-voltage electrical cables within 150 feet of a mine's working face. Because the grant of the modification was lawful, we deny the union's petition for review.

I.

The Federal Mine Safety and Health Act of 1977 sets out interim mandatory health standards, see 30 U.S.C. Secs. 841-846, and interim mandatory safety standards, see id. Secs. 861-878, for underground coal mines. Section 101(a) of the Act authorizes the Secretary of Labor, through rulemaking, to "develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines." Id. Sec. 811(a). Under section 101(c) of the Act, the Secretary may modify the application of any mandatory safety standard to a particular mine if she finds 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, or that the application of such standard to such mine will result in a diminution of safety to the miners in such mine.

Id. Sec. 811(c); see also 30 C.F.R. Sec. 44.4(a)(1). 1 "The modification, together with any conditions, [has] the same effect as a mandatory safety standard." Id. Sec. 44.4(c).

II.

Jim Walter Resources, Inc. operates underground coal mines Number 3 and Number 4 in Jefferson County, Alabama. It uses the longwall mining system in both mines. A longwall panel is created by digging two parallel, vertical tunnels (the headgate and tailgate entries) and a third horizontal connector (the longwall). See United Mine Workers of Am., Int'l Union v. Dole, 870 F.2d 662, 675 (D.C.Cir.1989). The ceiling of the longwall "exposes the face of rock from which coal will be extracted by a shearer moving back and forth across the face." Id. Mining begins at the bottom of the parallel entries and progresses back towards ground level. After miners extract all the coal from a longwall panel, the roof caves in.

Jim Walter's longwall mining equipment runs on electrical power. Electricity enters the mine through a surface substation, which steps down the voltage from 44,000 to 7200 volts. It travels through the mine until it reaches a power center about 150 feet from the longwall face. There, the electricity drops to 995 volts and travels to Jim Walter's longwall equipment.

Jim Walter wants to operate its longwall equipment with 2300 volts. A mandatory safety standard, however, prohibits Jim Walter from installing the necessary high-voltage cable. Section 75.1002 of title 30 of the Code of Federal Regulations states: "Trolley wires and trolley feeder wires, high-voltage cables and transformers shall not be located inby the last open crosscut and shall be kept at least 150 feet from pillar workings." 2 Regulations of the Mine Safety and Health Administration define anything over 1000 volts as high voltage. See 30 C.F.R. Sec. 75.2(j).

In December 1987, Jim Walter filed with MSHA two petitions to modify the application of 30 C.F.R. Sec. 75.1002 to Mines Number 3 and Number 4. In its petitions, Jim Walter asserted that its proposed high-voltage system would satisfy section 101(c) as "an alternative method" of affording miners "the same measure of protection" that 30 C.F.R. Sec. 75.1002 provides. See 30 U.S.C. Sec. 811(c). The United Mine Workers of America objected to the petitions on the ground that Jim Walter would mine deeper and longer longwall panels with high-voltage power, as well as on the ground that high voltage itself might be unsafe. According to the union, larger longwall panels would increase miners' exposure to dust and methane, create ventilation problems, and make escape from the mines more difficult.

On May 3, 1988, MSHA issued its proposed decisions and orders granting both petitions, subject to certain conditions. One of the conditions prohibited Jim Walter from mining longwall panels with lengths greater than 900 feet or depths greater than 10,000 feet. The union accepted all of the conditions but sought to add more. It proposed additional stipulations, most of which addressed its dust, methane, ventilation, and escapeway concerns.

An administrative law judge held a hearing then affirmed the proposed decisions and orders, adding only one of the union's proposed stipulations. First, he explained that the purpose of section 75.1002 is to protect miners "from face and explosive hazards as well as related electrical hazards." He concluded that the proposed decisions and orders "met if not exceeded" the current standard's protection against these dangers. Next, the ALJ rejected the union's contentions that larger longwalls would increase dust, methane, ventilation, and escapeway hazards. According to the ALJ, "the Union's witnesses whol[ly] failed to back their concerns with qualified testimony."

The Assistant Secretary of Labor for Mine Safety and Health affirmed the ALJ's decision. He agreed with the ALJ that the proposed system might have several electrical safety benefits. He further agreed that the union had failed to prove that the "overall effect" of Jim Walter's petitions would lessen the protection that section 75.1002 affords miners. Explaining that he was "mindful of the hazards associated with larger longwall panels" and that he had "considered the hazards associated with respirable dust, possible ventilation complications and longer escapeways," the Assistant Secretary listed three reasons why the ALJ had properly rejected the union's extraelectrical concerns:

First, ... the high-voltage system proposed by Jim Walter is as safe as the medium-voltage system currently in use at the No. 3 and No. 4 mines.

Second, mandatory standards relating to dust, ventilation and escapeways are adequate to control hazards related to larger longwall panels. Those standards will be fully enforced by MSHA at the No. 3 and No. 4 mines....

Third, the record does not contain any credible evidence that Jim Walter will be unable to comply with all applicable dust, ventilation, and escapeway standards in mining longwalls the width and depth permitted in the Proposed Decisions and Orders (900 feet X 10,000 feet)....

In a footnote, he further stated:

In fact, the record establishes the contrary. For example, current regulations for escapeways under 30 C.F.R. 75.1704 do not place distance limitations on designated escape routes. The escape routes available at Jim Walter's No. 3 and No. 4 Mines are accessible and in good condition. Also, intake air is available a short distance from the longwall face in the tailgate entry, as well as in the designated intake escapeway off the headgate side of the longwall face.

The Assistant Secretary concluded that the union had failed to rebut the "rather considerable evidence" favoring the grant of Jim Walter's petitions.

III.

In International Union, United Mine Workers of America v. FMSHA, 920 F.2d 960 (D.C.Cir.1990), we explained that the Assistant Secretary reviews "alternative method" petitions in two steps. The first step, "aimed at meeting Sec. 101(c)'s requirement that the alternative "achiev[e] the result' of the original standard," involves a determination whether "the modification promote[s] the specific safety goals of the original standard ... with roughly comparable success." Id. at 963. The second, aimed at meeting section 101(c)'s requirement that the alternative guarantee "the same measure of protection" as the original standard, involves a determination "whether the modification achieves a net gain in mine safety (or at least equivalence), taking all effects into account." Id. The union contends that the Assistant Secretary's second-step analysis here was arbitrary and capricious and unsupported by substantial evidence. We disagree. 3

Arbitrary and capricious review requires the court to decide whether an "agency [has] examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (citation omitted). Here we review the Assistant Secretary's decision that the proposed high-voltage system would ensure net equivalence in overall mine safety.

The union argues that in reaching his decision, the Assistant Secretary did not properly examine evidence of potential safety losses. It points out that although the Assistant Secretary said he was "mindful of" dust, methane, ventilation,...

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