International Union, United Mine Workers of America v. Mine Safety and Health Admin.

• Decision Date: 10 July 1987
• Docket Number: 86-1327,Nos. 86-1239,s. 86-1239
• Citation: 823 F.2d 608
• Parties: , 1987 O.S.H.D. (CCH) P 27,978 INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Kaiser Coal Corporation, Intervenor. INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Utah Power & Light Company, Mining Division, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 608

823 F.2d 608

262 U.S.App.D.C. 200, 1987 O.S.H.D. (CCH) P 27,978

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Kaiser Coal Corporation, Intervenor.

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, Petitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION, et al., Respondents, Utah Power & Light Company, Mining Division, Intervenor.

Nos. 86-1239, 86-1327.

United States Court of Appeals District of Columbia Circuit.

Argued March 17, 1987.

Decided July 10, 1987.

As Amended July 10, 1987.

Petition for Review of an Order of the Mine Safety and Health administration.

Mary Lu Jordan, with whom Michael H. Holland, Washington, D.C., was on the brief for petitioner. Earl R. Pfeffer, Washington, D.C., also entered an appearance for petitioner.

Jerald S. Feingold, Atty., Dept. of Labor, with whom Ann Rosenthal, Counsel, Appellate Litigation, Dept. of Labor, Washington, D.C., was on the brief for respondent. Cynthia L. Attwood, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for respondent.

Timothy M. Biddle for intervenor, with whom Paul W. Reidl was on the brief for intervenor, Kaiser Coal Corp. in No. 86-1239, and with whom Susan E. Chetlin, Washington, D.C., was on the brief for intervenor, Utah Power & Light Co. in No. 86-1327.

Before BORK, SILBERMAN and FRIEDMAN, ^* Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

In each of these actions the petitioner, International Union, United Mine Workers of America ("UMWA"), challenges a decision of the Mine Safety and Health Administration ("MSHA") granting indefinite interim relief from operation of a mandatory safety standard pending a decision on a petition for modification of the safety standard. We find that the court has jurisdiction to review these challenges and that the interim relief regulation at issue is in excess of the Secretary of Labor's statutory authority under section 101(c) of the Federal Mine Safety and Health Act of 1977 ("the Mine Act"). We therefore grant the petitions for review.

I.

The Mine Act is a comprehensive measure designed to regulate the mining industry. Titles II and III of the Act contain specific health and safety standards for underground coal mines. See 30 U.S.C. Secs. 841-878 (1982). One of these standards provides that "[i]n any coal mine ... the entries used as intake and return aircourses shall be separated from belt haulage entries." Id. Sec. 863(y). ¹

The Mine Act authorizes the Secretary of Labor to promulgate additional "mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines." 30 U.S.C. Sec. 811(a) (1982). It also requires the Secretary to provide, without regard to the Administrative Procedure Act, "for an emergency temporary mandatory health or safety standard ... if he determines ... that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and ... that such emergency standard is necessary to protect miners from such danger." Id. Sec. 811(b).

Section 101(c) of the Mine Act, which is central to this case, authorizes the Secretary to grant mine-specific exemptions from mandatory standards. Upon the petition of a mine operator, or the representative of the miners, "the Secretary may modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines 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." 30 U.S.C. Sec. 811(c) (1982).

Congress also addressed in section 101(c) the procedures that the Secretary must follow after a petition for modification has been filed. The Secretary must give notice of the petition and must conduct such investigation as he finds appropriate. The investigation must include an opportunity for a hearing of record upon the request of a mine operator, the representative of the miners, or other interested party. Before granting the petition, the Secretary must publish his findings and make them available to the operator or the representative of the miners. 30 U.S.C. Sec. 811(c) (1982).

Section 101(d) of the Mine Act provides that "[a]ny person who may be adversely affected by a mandatory health or safety standard promulgated under this section may, at any time prior to the sixtieth day after such standard is promulgated," obtain judicial review. 30 U.S.C. Sec. 811(d) (1982). The filing of a petition for review does not operate to stay the challenged mandatory standard. Id.

The Secretary has issued regulations governing the procedures used to implement the requirements of section 101(c). Upon receipt of a petition for modification, the MSHA publishes a notice of the petition in the Federal Register and interested parties have thirty days from the date of publication to file written comments. 30 C.F.R. Sec. 44.12 (1986). The MSHA then conducts an investigation and, "[a]s soon thereafter as is practicable," the appropriate Administrator, here the Administrator for Coal Mine Safety and Health, issues a proposed decision. The decision is then served on the parties and, unless a party requests a hearing, becomes final in thirty days. Id. Sec. 44.13. If a hearing is requested, the matter is referred to the Chief Administrative Law Judge for the Department of Labor and then assigned to an administrative law judge ("ALJ") for a hearing and a decision on the petition. Id. Secs. 44.15, 44.20. The proposed decision of the ALJ becomes final unless an appeal is filed with the Assistant Secretary of Labor for Mine Safety and Health ("the Assistant Secretary"). Id. Sec. 44.33(a).

The proposed decision of the Administrator is not effective pending appeal to the ALJ and the proposed decision of the ALJ is not effective pending appeal to the Assistant Secretary. 30 C.F.R. Sec. 44.50(a) (1986). A party may, however, petition for relief pending appeal of either decision. Id. Sec. 44.50(b)(1). An application which seeks to implement an Administrator's decision must be filed with the ALJ and an application which seeks to implement an ALJ's decision must be filed with the Assistant Secretary. Id. Sec. 44.50(b)(3). Relief pending appeal will be granted only if the applicant shows that "the requested relief will not adversely affect the health or safety of miners in the affected mine, and ... there is a substantial likelihood that the decision on appeal will be favorable to the applicant." Id. Sec. 44.50(b)(6). Interlocutory appeal of a decision on an application for relief pending appeal is permitted only if the ALJ or the Assistant Secretary certifies that "the ruling involves an important question of law or policy as to which there are substantial grounds for difference of opinion, and ... an immediate appeal from the ruling may materially advance termination of the proceeding." Id. Sec. 44.50(b)(4).

In addition to relief pending appeal, a party may file an application "for interim relief from enforcement of a mandatory safety standard" at any time prior to a "final departmental decision on the petition for modification." 30 C.F.R. Sec. 44.16(a) (1986). The application must be filed with and decided by the decisionmaker before whom the petition for modification is pending. Id. Sec. 44.16(b). Parties have three days from receipt of the application to file written comments. Id. Sec. 44.16(f). If the application is filed with and denied by the Administrator, the applicant may file a request with the Administrator for a hearing before an ALJ. Id. Sec. 44.16(c). The re quest is then referred to the Chief Administrative Law Judge "for hearing and decision by an administrative law judge." Id. There is no provision for a hearing upon the grant of an application for interim relief. An application for interim relief will be granted only if the applicant "clearly show[s]" that

(1) the petition seeking modification has been filed in good faith, and the applicant is not using the proceeding solely to postpone or avoid abatement; (2) the requested relief will not adversely affect the health or safety of miners in the affected mine, and (3) there is a substantial likelihood that the decision on the merits of the petition for modification will be favorable to the applicant.

Id. Sec. 44.16(e).

II.

A.

In No. 86-1239, Kaiser Coal Corporation ("Kaiser") petitioned the Secretary of Labor for modification of the mandatory safety standard that requires the separation of the return and intake aircourses from belt entries at its Upper York Canyon (Cimarron) Mine. Kaiser argued that a modification was necessary because compliance with the standard would require driving three entry tunnels which, because of ground conditions, would increase the likelihood of roof falls. Joint Appendix in No. 86-1239 ("No. 86-1239 J.A.") at 10. Kaiser asserted that use of a two-entry system would be significantly safer than the traditional three-entry system because it would improve roof stability. Id. at 10-16. Kaiser also claimed that its use of carbon monoxide monitoring systems and fire detection devices provides an alternative method of protection against the fire hazards created by using the belt entry as an aircourse. Id. at 16-18. ² In response to Kaiser's petition, the MSHA began an investigation.

Approximately two months later, on July 2, 1985, Kaiser filed an application for interim relief from the mandatory standard and requested expedited consideration of the application. No. 86-1239 J.A. at 29-36. Kaiser requested permission to utilize a two-entry system pending a decision on its petition for modification and stated the same grounds...