Council of Southern Mountains, Inc. v. Donovan, 80-2536

Decision Date16 April 1981
Docket NumberNo. 80-2536,80-2536
Citation653 F.2d 573
Parties, 1981 O.S.H.D. (CCH) P 25,346 COUNCIL OF the SOUTHERN MOUNTAINS, INC., et al., Petitioners, v. Raymond J. DONOVAN, Secretary of Labor, Eckehard Muessig, Deputy Assistant Secretary of Labor, and Mine Safety and Health Administration, Respondents, American Mining Congress, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

J. Davitt McAteer, Washington, D. C., of the bar of the Supreme Court of Illinois, Pro Hac Vice by special leave of Court, and Thomas B. Gumbel, Collinsville, Ill., of the bar of the Supreme Court of W. Va., Pro Hac Vice by special leave of Court, with whom L. Thomas Galloway, Washington, D. C., was on the brief, for petitioners, Council of the Southern Mountains, Inc., et al.

Betty Jean Hall, Jacksboro, Tenn., entered an appearance for petitioner Coal Employment Project.

Michael A. McCord, Counsel, Dept. of Labor, Washington, D. C., with whom Cynthia L. Attwood, Acting Associate Sol., and Nancy S. Hyde, Atty., Dept. of Labor, Washington, D. C., were on the brief, for respondents.

Anthony J. Thompson, Washington, D. C., with whom Edward A. McCabe, Robert W. Frantz, Henry Chajet and Michael F. Duffy, Washington, D. C., were on the brief, for intervenor.

Before ROBB, WALD and GINSBURG, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

In November 1978, the Mine Safety and Health Administration (MSHA) of the Department of Labor issued final regulations requiring coal operators to equip all underground miners with self-contained self-rescuers (SCSRs) that will provide oxygen in the event of a mine explosion or fire. 1 The regulations gave coal operators two years, until December 21, 1980, to order and supply the devices. Today we do not review either the propriety of the 1978 regulations or the wisdom of the initial phase-in period. 2 Instead we judge a more narrow question: whether on December 5, 1980, the Secretary of Labor acted reasonably when he deferred implementation of the regulations until June 21, 1981, and whether he had good cause to take that action without providing prior notice or an opportunity to comment. 3 While we find the notice-and-comment question very close, we conclude that, in the special circumstances presented, the Secretary had good cause to dispense with usual rulemaking procedures and that his action was otherwise reasonable.

I. BACKGROUND

Each year, underground fires and explosions claim the lives of some coal miners. 4 Miners who are not killed by the initial explosion or spreading flames may die from inhalation of noxious gases or simple lack of oxygen. In 1969 the National Academy of Engineering concluded that asphyxiation from smoke, carbon monoxide, or carbon dioxide caused twenty-two percent of the 566 mine deaths that occurred between 1950 and 1969. 5 Responding to this type of information Congress in 1969 required coal mine operators to give all underground miners self-rescue devices that would protect them from poisonous gases for at least one hour. 6 Regulations promulgated shortly thereafter directed mine operators to supply filter-type self-rescuers to all underground miners. 7

Filter-type self-rescuers, however, are inadequate to the life-saving task for several reasons. They protect miners only against carbon monoxide, not against smoke, carbon dioxide, or other toxic gases. Even protection from carbon monoxide ceases if carbon monoxide levels exceed one percent of the atmosphere. At higher concentrations of carbon monoxide, the filter-type self-rescuer produces air that is too hot to inhale. 8 Miners react by spitting out the filter-type device and thereupon die from carbon monoxide poisoning. In addition to these problems, filter-type self-rescuers do not supply an independent source of oxygen. Therefore, even if the devices successfully protect miners from carbon monoxide, a low oxygen level may cause miners to lose consciousness and eventually perish in the contaminated mine atmosphere. 9

Aware of the filter-type device's limitations, the Bureau of Mines began an extensive testing program to identify a better self-rescuer. In 1977 these efforts culminated in proposed regulations requiring coal operators to equip underground miners with SCSRs rather than filter-type self-rescuers. 10 SCSRs contain an independent oxygen supply that lasts for an hour or more. Thus, they protect miners from all poisonous gases and give miners sufficient oxygen to attempt escape from a mine struck by a disaster. While SCSRs are much more effective than filter-type self-rescuers, the proposed rules did not contemplate an immediate switch from one device to the other. Instead, the proposed rules indicated that coal operators would have two years from the date of any final regulations to equip their miners with SCSRs. 11

On November 21, 1978, the Department of Labor issued final regulations requiring the use of SCSRs in coal mines. As promised in the 1977 proposed rules, coal operators were given two years, until December 21, 1980, to select, order, and supply SCSRs. 1978 Regulations, supra note 1, at 54246. During this phase-in period, MSHA pledged to field test the SCSRs. Id. at 54244. While MSHA was confident that SCSRs were "reliable and safe to use and store in underground mines," id. at 54243, the agency wanted to conduct field testing to determine how the use of SCSRs would "affect miners" in actual mining situations. Id. at 54244.

After promulgation of the final rules, MSHA promptly developed a program for field testing SCSRs. On February 28, 1979, Joseph O. Cook, MSHA Administrator for Coal Mine Safety and Health, sent Robert B. Lagather, Assistant Secretary of Labor for Mine Safety and Health, an action plan for evaluating SCSRs. The plan envisioned completion of testing well before the December 1980 deadline for implementing the regulations. 12

Two circumstances, however, delayed the field testing program. First, the National Institute for Occupational Safety and Health (NIOSH), which had to approve SCSR models before they could be used in the tests, did not approve production model SCSRs until the summer of 1980. 13 Second MSHA worked diligently to overcome these roadblocks. When NIOSH approval for production model SCSRs was not forthcoming, the agency used hand-manufactured models that had been approved in 1979 for a first round of field tests. 16 To Despite delays in the field testing program, MSHA appeared determined throughout the fall of 1980 to complete field testing by December and implement the regulations on schedule. 19 On November 5, 1980, Assistant Secretary Lagather wrote to the Joint Industry Committee, noting that the Committee had already received the Bureau of Mines study, and expressed his confidence that field tests could "be started at ... affiliated mines (of Committee members) in the very near future." 20 On November 12, 1980, Robert G. Peluso, MSHA Chief of Special Projects, wrote to representatives of the two manufacturers that had received approval for their SCSRs and asked how many SCSRs they would have on hand by December 21, how many devices they could manufacture during each month after that date, and how they planned to transport finished SCSRs to customers. 21 Finally, on November 28 Although Lagather's November 28 letter implied that he planned to implement the regulations on schedule, MSHA announced a different position shortly thereafter. On December 5, 1980, MSHA published the order that gave rise to this petition for review. 23 In a few brief paragraphs, MSHA stated that since it had not completed field testing SCSRs, and since only a small number of the devices were available, 24 it had decided to defer implementation of the regulations until June 21, 1981. This order was preceded by neither notice nor a comment period; MSHA declared that "(i)n view of the imminence of the deadline and the circumstances stated above" it was "impracticable and contrary to the public interest to provide advance notice and opportunity for public comment on this amendment." December 5 Order, supra note 3, at 80502.

                the Joint Industry Health and Safety Committee, representing both a major coal operators' association and the United Mine Workers of America (UMWA), would not recommend that their members participate in field testing until MSHA answered safety concerns about SCSRs that had surfaced early in 1980.  14 The Bituminous Coal Operators' Association (BCOA), the major industry association represented on the Joint Committee, did not finally approve field testing in its mines until November 19, 1980.  15
                calm lingering fears about the safety of SCSRs, MSHA asked the Bureau of Mines to conduct an extensive study of the devices.  This study was completed during the summer of 1980 and presented to the Joint Industry Health and Safety Committee the following fall.  17 And when BCOA continued to withhold approval for field testing throughout the fall of 1980, MSHA initiated tests in mines owned by members of the National Independent Coal Operators Association (NICOA).  18
                1980, Assistant Secretary Lagather reported to BCOA that seven mines had been selected for field testing, that testing would begin December 5, 1980, and that testing at three mines would be completed by December 15.  While testing at the other four mines would not be completed until January of 1981, Lagather hoped that information from the first three tests would "provide some guidance in implementating the regulations."  22
                

The Council of the Southern Mountains (CSM), a representative of miners in Martin County, Kentucky, together with District 12 of UMWA and the Coal Employment Project, petitioned this court for review of the December 5 order. We permitted the American Mining Congress (AMC), an industry association, to intervene. Because the order deferring implementation of the regulations is now in effect, 25 we have treated ...

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