Int'l Union, United Mine Workers of Am. v. Mine Safety and Health Admin.

• Decision Date: 26 October 2010
• Docket Number: No. 09-1014,09-1014
• Citation: 626 F.3d 84,393 U.S.App.D.C. 200
• Parties: INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., Respondents National Mining Association, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

626 F.3d 84

393 U.S.App.D.C. 200

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner

v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., RespondentsNational Mining Association, Intervenor.

No. 09-1014.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 13, 2010.

Decided Oct. 26, 2010.

On Petition for Review of a Final Rule of the Federal Mine Safety & Health Administration.

Arthur Traynor argued the cause for petitioner. With him on the briefs were Grant Crandall and Judith Rivlin.

Edward Waldman, Attorney, U.S. Department of Labor, argued the cause for respondents. With him on the brief was W. Christian Schumann, Counsel.

Before: GINSBURG, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Congress has addressed the problems of miner safety on various occasions, the questions here arising with respect to the Secretary of Labor's response to Congress' focus on refuge alternatives for underground coal mines. The International Union, United Mine Workers of America ("UMWA") petitions for review of the Refuge Alternatives for Underground Coal Mines, 73 Fed.Reg. 80,656 (Dec. 31, 2008) (codified at 30 C.F.R. pts. 7, 75) ("Final Rule"). The UMWA contends the provision on training violates statutory standards and, like the refuge volume provision, is arbitrary and capricious.

We grant the petition with respect to the training requirement for miners and remand the Final Rule for the Mine Safety and Health Administration ("MSHA"), acting on behalf of the Secretary, to explain the basis for requiring "hands-on" training only annually rather than quarterly. Although the training provision is, as statutorily required, "consistent with" the recommendations of the National Institute of Occupational Safety and Health ("NIOSH"), these requirements are nonetheless arbitrary and capricious becauseMSHA has not explained the basis for them other than to state it relied upon its "knowledge and expertise." A conclusory statement is inadequate when expert evidence in the rulemaking record indicated why quarterly hands-on training was necessary and MSHA itself had identified problems of skill degradation.

We deny the petition with respect to the provision on minimum refuge volume per miner. The final rule was a logical outgrowth of the proposed rule: MSHA gave interested parties sufficient notice and opportunity for comment. The provision also is neither arbitrary nor capricious.

I.

After several high-profile mine accidents involving multiple fatalities, Congress enacted the Mine Improvement and New Emergency Response Act of 2006, Pub.L. No. 109-236, 120 Stat. 493 (2006) (partially codified in scattered sections of 29 and 30 U.S.C.) ("MINER Act"), and instructed the Secretary to consider expanded use of refuge alternatives in which trapped miners can seek shelter. Section 6 created the Office of Mine Safety and Health within NIOSH to enhance the development of technology and to assist with research, through grants and contractual arrangements with educational institutions and qualifying private parties. 120 Stat. at 498-99 (codified at 29 U.S.C. § 671(h)). Section 13 designated NIOSH to provide for the conduct of research, including field tests, and to report within eighteen months to Congress and to the Secretaries of Labor and Health and Human Services on research regarding "the utility, practicality, survivability, and cost of various refuge alternatives in an underground coal mine environment, including commercially-available portable refuge chambers." 120 Stat. at 504 (uncodified). The Secretary of Labor was to respond to Congress on "the actions, if any, that [she] intends to take based upon the [NIOSH] report, including proposing regulatory changes, and the reasons for such actions." Id. (emphasis added).

In December 2007, Congress directed the Secretary to "propose regulations ... consistent with the recommendations of the [NIOSH Report] ... requiring rescue chambers, or facilities that afford at least the same measure of protection" not later than June 15, 2008, and to "finalize the regulations not later than December 31, 2008." Consolidated Appropriations Act, 2008, Pub.L. No. 110-161, § 112(b), 121 Stat. 1844, 2168 (2007) ("2008 Appropriations Act") (emphasis added). On June 16, 2008, MSHA published a notice of proposed rulemaking ("NPRM"), 73 Fed.Reg. 34,140, and, following the receipt of comments, promulgated the Final Rule on December 31, 2008. The UMWA petitions for review of the miner training and refuge volume provisions in the Final Rule.

Training. The NIOSH Report to Congress made a series of recommendations on training miners on the use of refuge alternatives. See Office of Mine Safety & Health, NIOSH, Research Report on Refuge Alternatives for Underground Coal Mines at 15-16 (Dec.2007) ("NIOSH Report"). It separately addressed, in research, motor task training on the operation of a refuge chamber, decision-making training on when to use a refuge chamber, and expectations training to help miners attain realistic expectations about what it would be like to spend four days in a refuge chamber. See Issues Regarding Refuge Chamber Training, NIOSH, Docket No. BKG-25 ("NIOSH Research"). Most notably, the Report stated that "NIOSH research indicates that motor task training, i.e., how to use refuge alternatives, should be given quarterly, possibly in conjunction with the mandatory mineevacuation training and drills." NIOSH Report at 15. The NIOSH Report also recommended that decision-making training and expectations training be given at the same time as the motor task training. Id. The referenced research stated regarding motor task training that, by contrast with the 18 sequential steps to activate and maintain a refuge chamber, "NIOSH testing has shown that without repeated hands-on practice, miners quickly forget how to physically perform [even the 6] steps [to donning a self-contained self-rescuer ['SCSR']]." NIOSH Research at 1. One experiment found that a year after miners had demonstrated proficiency only 10% of those sampled remained proficient without additional training. By contrast, 70% of miners who completed hands-on training quarterly remained proficient. The NIOSH Research concluded that "there is little or no reason to believe the operation of a refuge chamber is in any way exempt from the principles that have held true for literally hundreds of motor tasks that have been studied since the turn of the 20th century: people learn by doing, and tend to forget over time unless they practice." Id. Noting that "the optimum intervals for retraining on a refuge chamber are not known," NIOSH researchers suggested that a "reasonable approach ... would be to integrate instruction on the refuge chamber into the emergency mine evacuation training and drills that are mandated to be held quarterly." Id. at 2. NIOSH researchers also warned with regard to motor task training that "[t]rainers ought not to rely solely on verbal or printed instructions, videos, etc." Id. at 1.

MSHA proposed quarterly drills and annual training. NPRM, 73 Fed.Reg. at 34,171; see id. at 34,156-57. The proposed quarterly drills required locating refuge alternatives and stored SCSRs, and "reviewing the checklist" and manufacturer-provided information on constructing, activating, and using refuge alternatives. Id. at 34,171. The annual training included hands-on motor task training in donning SCSRs in a real or simulated smoke-filled environment, and constructing and activating a refuge chamber in a simulated emergency situation; decision-making training "emphasiz[ing] that miners first try to evacuate the mine and that refuge alternatives are a haven of last resort when escape is impossible"; and expectations training in exposing miners to the expected heat and humidity conditions in a refuge chamber, an element considered "essential to reduc[ing] the level of panic and anxiety associated with the use of refuge alternatives." Id. at 34,156-57.

In comments the UMWA objected that the proposed training provision was inconsistent with the NIOSH Report, noting that the proposed "expectations training" is to be performed annually instead of quarterly and that there was no requirement for hands-on training to be conducted with an actual or model refuge chamber. The UMWA stated that "[t]o adequately protect miners in the post-accident situation, the training protocol must require hands-on training at least every 90 days." UMWA Comments, Docket No. COMM-11, at 15 (Aug. 15, 2008). It noted MSHA's reference in the preamble to data from studies in 1990-93 in which researchers from the U.S. Bureau of Mines, the University of Kentucky, and MSHA measured skills degradation; for example, one study had found proficiency dropped about 80% in follow-up evaluations conducted about 90 days after training. Id. at 14 (quoting NPRM, 73 Fed.Reg. at 34,156/2). Yet, the UMWA concluded, in the proposed rule MSHA "does not appear to be taking that approach." Id. at 15.

NIOSH did not comment specifically on the proposed training provision, observingonly that the proposed rule is consistent with NIOSH research findings presented to Congress in 2007, "if appropriate training is provided." NIOSH Comments, Docket No. COMM-20, at 2 (Aug. 18, 2008).

The Final Rule did not differ substantively from the proposal on training for miners. See 30 C.F.R. §§ 75.1504(b) ("Quarterly instructions review") & (c) ("Annual expectations training"), 73 Fed.Reg. at 80,698.

Refuge Volume. The NIOSH Report recommended providing at least 15 square feet of unrestricted floor space and at least 85 cubic feet of unrestricted volume per miner in the refuge alternatives to enable miners to perform basic functions. See NIOSH Report at 7. However, the Report advised that "[t]he values listed ... should not be considered as absolute, but rather as reasonable starting points for specifications." Id. at 5. Beyond noting that "it...