International Union, Mine v. Mine Safety, Heal., 04-1164.

Citation407 F.3d 1250
Decision Date24 May 2005
Docket NumberNo. 04-1164.,No. 04-1165.,04-1164.,04-1165.
PartiesINTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner v. MINE SAFETY AND HEALTH ADMINISTRATION and Elaine Chao, Secretary of Labor, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Judith E. Rivlin argued the cause for petitioner International Union, United Mine Workers of America. With her on the briefs was Grant F. Crandall.

Guy W. Hensley argued the cause and filed the briefs for petitioner Jim Walter Resources, Inc.

Harold P. Quinn, Jr., Ralph H. Moore, Karen L. Johnston, and Trisha L. Culp were on the brief for amicus curiae National Mining Association in support of petitioner.

Jerald S. Feingold, Attorney, Mine Safety & Health Administration, argued the cause for respondents. With him on the brief was W. Christian Schumann, Counsel.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

Two petitions for review challenge the Secretary of Labor's promulgation of the final rule entitled "Underground Coal Mine Ventilation Safety Standards for the Use of a Belt Entry as an Intake Air Course to Ventilate Working Sections and Areas Where Mechanized Mining Equipment is Being Installed or Removed," 69 Fed.Reg. 17,480-530 (Apr. 2, 2004) (codified at 30 C.F.R. pt. 75) ("Belt Air Rule"). In No. 04-1164, the International Union, United Mine Workers of America ("the Union") contends that the Secretary, by failing to grandfather existing mine-specific health and safety protections, has promulgated a belt air standard that is contrary to the "no-less protection" requirement of section 101(a)(9) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"), 30 U.S.C. §§ 801-962 (2000). It maintains this failure compromises the Secretary's "net effects" analysis, and because some miners will lose enhanced protections they previously enjoyed, the Secretary acted arbitrarily and capriciously. Although the Union's interpretation is compatible with the Mine Act's purpose to protect the health and safety of miners, the Secretary's "net effects" analysis is consistent with the purpose, the statutory text, and the statutory scheme enacted by Congress. Accordingly, we deny the Union's petition for review.

In No. 04-1165, Jim Walter Resources, Inc. ("JWR"), a coal mining company, challenges the Secretary's promulgation of 30 C.F.R. § 75.350(a)(2), which sets a velocity cap of 500 feet per minute ("fpm"). It contends the cap is invalid because the Secretary failed to comply with the notice-and-comment requirements of the Mine Act, 30 U.S.C. § 811(a), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(b) (2000). While the Secretary purports to rely on the "logical outgrowth" doctrine, that doctrine cannot be stretched as far as the Secretary suggests. In the notice of proposed rulemaking, the Secretary stated that she was not proposing a velocity cap because empirical research indicated a cap would increase safety problems, 68 Fed.Reg. 3,936, 3,950 (Jan. 27, 2003) ("NOPR"), and she failed to give notice, with an opportunity for comment, prior to promulgating the final rule, that she was considering imposing a cap, much less a cap of 500 fpm. Accordingly, we grant JWR's petition, vacate section 75.350(a)(2) of the Belt Air Rule, and remand the matter to the Secretary.

I.

Subchapter I of the Mine Act sets forth the procedures for the Secretary to follow in developing a proposed rule for establishing a new mandatory national health and safety standard, and establishes various standards that are to be met based upon the consideration of certain factors. 30 U.S.C. § 811(a)(1)-(4). The term "mandatory health or safety standard" is defined in the Mine Act as the "interim mandatory health or safety standards established by subchapters II and III of this chapter, and the standards promulgated pursuant to subchapter I of this chapter." Id. § 802(l). In enacting the Mine Act, Congress addressed certain mine safety concerns by establishing interim mandatory national health and safety standards, to remain in effect until replaced or superceded by the Secretary. See id. §§ 841, 862-78. Section 101(a) of the Mine Act directs the Secretary of Labor 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. § 811(a). Section 101(a)(9), the "no-less protection" rule, provides that "[n]o mandatory health or safety standard promulgated under this subtitle shall reduce the protection afforded miners by an existing mandatory health or safety standard." Id. § 811(a)(9).

Under appropriate circumstances, the Secretary may exempt a mine from the mandatory national health and safety standards. Section 101(c) authorizes the Secretary to modify the application of any mandatory safety standard to a particular mine upon finding 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 of such mine [and mine-specific conditions are required to ensure miner health and safety equivalent to the national standard].

Id. § 811(c).

The relevant interim belt air mandatory national standard enacted by Congress provides that:

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....

Id. § 863(y)(1). While barring use of belt air ventilation of working areas, the interim standard permitted existing mines, opened on or before March 30, 1970, that were using belt air to continue doing so upon petition for modification of the interim standard. 30 C.F.R. § 75.326 (1991). During the fifteen-year period prior to 2003, the Secretary, acting through the Mine Safety and Health Administration ("MSHA"), 29 U.S.C. § 557a (2000), had granted approximately 90 such petitions, finding, after on site inspections, that the modifications provide "the same measure of safety protection as the existing standard," 68 Fed.Reg. at 3,937, by use of "the proper installation, operation, examination, and maintenance of [atmospheric monitoring systems ("AMS")] as part of a comprehensive safety program that contains other requirements," id. Generally, MSHA noted, mine operators have requested "the use of belt air to ventilate working places dependent upon the installation of an AMS with [carbon monoxide ("CO")] sensors for early-warning fire detection in the belt entry," id. at 3,938, to comply with MSHA's regulatory requirements on automatic fire warning devices, 30 C.F.R. § 75.1103, and as a regulatory option for monitoring methane, CO, and smoke, 68 Fed.Reg. at 3,938.

In January 1988, MSHA first proposed to revise the interim air belt standard to allow air coursed through the belt entry to ventilate working places where mine operators had installed CO sensors in the belt entry. Id. at 3,937. After a series of public hearings, the Assistant Secretary for Mine Safety and Health called for a review of the safety factors associated with the use of such belt air. Id. The review culminated in the Belt Entry Ventilation Review ("BEVR") of August 1989, which concluded that ". . . directing belt entry air to the face can be at least as safe as other ventilation methods provided carbon monoxide monitors or smoke detectors are installed in the belt entry." Id. However, in light of the divergent views of industry and academia compared to those of labor representatives in response to publication of the report, 54 Fed.Reg. 35,356 (Aug. 25, 1989), no revisions were made to the interim standard. 68 Fed.Reg. at 3,937.

MSHA continued to be of the view that the interim belt air standard should be revised, and in January 1992, the Secretary appointed an Advisory Committee to make recommendations concerning the necessary conditions under which air in the belt entry could be safely used in the working areas of underground mines. Id. The Advisory Committee, following public meetings, issued a final report concluding that air in the belt entry could be safely used to ventilate working places in underground coal mines provided certain conditions are met. Id. MSHA also published this report. 57 Fed.Reg. 57,078 (Dec. 2, 1992).

Then, in January 2003, MSHA issued a NOPR, 68 Fed.Reg. at 3,936, to "allow the use of intake air passing through belt air coursers (belt air) to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines," id. According to MSHA, under the conditions set forth in the proposed rule, use of belt air "would maintain the level of safety in underground mines while implementing advances in mining technology." Id. After public hearings and receipt of comments, MSHA promulgated the final rule, permitting mines using three or more entries to use air coursed through belt entries to ventilate working areas, when used with CO monitors and AMSs for fire detection, and conforming with new mandatory safety standards as well as existing standards regarding mine-specific ventilation plans in light of the actual safety needs created by the specific circumstances at individual mines. 69 Fed.Reg. at 17,482. The preamble stated:

New technology has proven safe and...

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