American Min. Congress v. Marshall
| Decision Date | 22 February 1982 |
| Docket Number | 80-2166,Nos. 80-1581,s. 80-1581 |
| Parties | 1982 O.S.H.D. (CCH) P 25,933 AMERICAN MINING CONGRESS, Petitioner, v. Ray F. MARSHALL, Secretary of Labor, U. S. Department of Labor; and United States Department of Labor; and Robert B. Lagather, Assistant Secretary for Mine Safety and Health, U. S. Department of Labor; and Mine Safety and Health Administration, U. S. Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Anthony J. Thompson of Hamel, Park, McCabe & Saunders, Washington, D. C. (Edward A. McCabe, Raymond D. McMurray, John H. Spellman, and Charles E. Sliter of Hamel, Park, McCabe & Saunders Washington, D. C., Frank H. Morison and Jane Michaels Talesnick of Holland & Hart, Denver, Colo., and Henry Chajet, Senior Counsel, American Mining Congress, Washington, D. C., with him on the briefs), for petitioner.
Cynthia L. Attwood, Deputy Associate Sol., Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Moody R. Tidwell, Associate Sol., Edward P. Clair, Counsel for Coal Mine Standards and Regulations, Edward C. Hugler and Ann S. Rosenthal, Attys., U. S. Dept. of Labor, Arlington, Va., with her on the brief), for respondents.
Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges:
Petitioner, American Mining Congress, challenges the promulgation of rules by the Secretary of Labor under the Federal Mine Safety and Health Act (MSHA), 30 U.S.C. §§ 801-960 (1976 & Supp. III 1979), on both substantive and procedural grounds.
Congress passed the original Coal Mine Health and Safety Act, 30 U.S.C. §§ 801-960 (1976), in 1969 in response to studies indicating that prolonged exposure of miners to coal dust causes black lung disease. To achieve its purpose of preventing black lung disease, Congress established the following health standard:
Effective three years after December 30, 1969, each operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of such mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air.
30 U.S.C. § 842(b)(2). This standard was based upon data developed in Great Britain, using the Mining Research Establishment (MRE) gravimetric area sampling instrument, indicating that the incidence of black lung disease would be 2% at respirable dust concentrations at or below 2 milligrams per cubic meter of air. S.Rep.No. 91-411, 91st Cong., 1st Sess. 16 (1969). This statutory standard is still in effect and is not challenged here.
Congress also established the basic regulatory framework within which the 2 mg./m 3 standard was to be attained:
Each operator of a coal mine shall take accurate samples of the amount of respirable dust in the mine atmosphere to which each miner in the active workings of such mine is exposed. Such samples shall be taken by any device approved by the Secretary (of Labor) and the Secretary of Health, Education, and Welfare and in accordance with such methods, at such locations, at such intervals, and in such manners as the Secretaries shall prescribe in the Federal Register within sixty days from December 30, 1969 and from time to time thereafter. Such samples shall be transmitted to the Secretary (of Labor) in a manner established by him, and analyzed and recorded by him in a manner that will assure application of the provisions of section 814(i) of this title when the applicable limit on the concentration of respirable dust required to be maintained under this section is exceeded.
30 U.S.C. § 842(a). The Act was amended and renamed in 1977, but the provisions quoted above were unchanged.
The Secretary first promulgated regulations under the authority of § 842(a) of the Act in 1970. 30 C.F.R. Part 70 (superceded). 1 The 1970 regulations adopted the high-risk occupation sampling approach under which mine operators were required to sample the air breathed by persons in designated high-risk occupations. 30 C.F.R. §§ 70.240-.246 (superceded). This approach was based on studies indicating that the highest concentrations of respirable dust were found in areas where coal was actually being extracted. Thus, the high-risk occupation sampling program required sampling only in the "working sections" of the mine. 2 The rationale of this program was that if persons in high-risk occupations were found not to be overexposed to respirable dust, then it could be safely concluded that other miners, in less risky occupations, were protected from excessive concentrations of respirable dust. App., vol. 1, at 72. The high-risk occupation sampling program was never challenged by petitioner.
In April of 1980, the Secretary promulgated a new rule pursuant to the authority of § 842(a) of the Act. 30 C.F.R. Part 70 (1980). It is part of this new rule that is the subject of the instant challenge. The new rule retains the original high-risk occupation sampling program. 3 30 C.F.R. § 70.207 (1980). This part of the new rule is not challenged here. However, the new rule goes further by instituting a new "designated area sampling" program in the non-working sections of the mine. Id. § 70.208. This program is based on studies showing that dust generated by sources outby (away from) the working face poses a significant health hazard to miners. App., vol. 1, at 264, 272. Designated area sampling is designed to measure the concentration of respirable dust to which miners are exposed as they work and travel in outby areas. Samples are required to be collected at locations where miners work or travel near known dust generation sources. 30 C.F.R. §§ 70.208, 70.2(b). The mine operator must designate dust generation sources and placement of sampling devices relative to such sources in a dust control plan, which must be submitted to the Secretary for his approval. Id. §§ 70.2(e), 70.208(e), 75.316, 75.316-1(b)(2). If designated area samples reveal noncompliance with the statutory standard, corrective action is required to lower the concentration of dust. Id. §§ 70.201(d), 70.208(d). The overall approach of the designated area sampling program is analogous to that of the high-risk occupation sampling program: if the atmosphere in the area of a known dust generation source is in compliance with the statutory standard, then it can safely be presumed that all miners are protected from overexposure. See Preamble, 45 Fed.Reg. 23,990, 23,998 (Apr. 8, 1980).
Against this background, we now address petitioner's contentions that the designated area sampling regulations are substantively and procedurally defective. Judicial review of the regulations is predicated on § 101(d) of the Act, 30 U.S.C. § 811(d) (Supp. III 1979).
Petitioner argues on appeal that the Secretary erred (1) in not following the procedures required by the MSHA and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-59, 701-06 (1976 & Supp. IV 1980), (2) in promulgating an arbitrary and capricious rule, and (3) in failing to promulgate 4 provisions necessary to ensure that the rule is not arbitrary and capricious.
The statute conferring the right to judicial review, 30 U.S.C. § 811(d), says nothing about the standard of review. We need not dwell on that issue long, since the parties agree that we must apply the arbitrary and capricious standard of review provided by § 706(2)(A) of the APA. 5 This standard applies to all informal rulemaking proceedings such as that prescribed by § 811 of the MSHA. The United States Supreme Court explained the meaning of the arbitrary and capricious standard in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971):
Section 706(2)(A) requires a finding that the actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
Id. at 416, 91 S.Ct. at 823 (citations omitted). Under this standard, the agency must demonstrate that it considered the relevant factors and alternatives after a full ventilation of the issues and that the choice it made based on that consideration was a reasonable one. 6
In reviewing the regulations, we must constantly bear in mind that Congress delegated sweeping authority to the Secretary. The statute provides that "samples shall be taken by any device approved by the Secretary ... and in accordance with such methods, at such locations, at such intervals, and in such manners" as the Secretary prescribes. 30 U.S.C. § 842(a). Because Congress has conferred such wide ranging discretion on the Secretary, this court should be hesitant in imposing constraints on his power. The need for judicial restraint is further heightened by the realization that courts do not share the Secretary's expertise in this highly technical area. With these factors in mind, we now proceed to examine petitioner's contentions.
Petitioner's first argument is that the Secretary's decision to employ area sampling rather than personal sampling to measure compliance with the respirable dust standard is arbitrary and capricious. Under a personal sampling program miners are required to wear face masks containing sampling devices. Petitioner argues that in passing the MSHA Congress was concerned with reducing the level of individual exposure to respirable dust; that the only dust to which an individual miner is exposed is that...
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