Nat'l Mining Ass'n v. United Steel Workers

• Decision Date: 22 January 2021
• Docket Number: No. 17-11207,17-11207
• Citation: 985 F.3d 1309
• Parties: NATIONAL MINING ASSOCIATION, National Stone, Sand & Gravel Association, et al., Petitioners, v. UNITED STEEL WORKERS, United Mine Workers of America, International Union, Intervenors, U.S. Department of Labor, Mine Safety and Health Administration, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

985 F.3d 1309

NATIONAL MINING ASSOCIATION, National Stone, Sand & Gravel Association, et al., Petitioners,

v. UNITED STEEL WORKERS, United Mine Workers of America, International Union, Intervenors,U.S. Department of Labor, Mine Safety and Health Administration, Respondents.

No. 17-11207

United States Court of Appeals, Eleventh Circuit.

January 22, 2021

Arthur M. Wolfson, Patrick Wayne Dennison, Ralph Henry Moore, II, Fisher & Phillips, LLP, Pittsburgh, PA, Ross Jared Watzman, Jackson Kelly, PLLC, Denver, CO, for Petitioners.

Susan J. Eckert, Santarella Eckert LLC, Littleton, CO, for Intervenors United Steelworkers and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO-CLC.

Timothy J. Baker, United Mine Workers of America, Triangle, VA, for Intervenor United Mine Workers of America, International Union.

Emily Toler Scott, Edward Waldman, April Nelson, Walter Christian Schumann, U.S. Department of Labor, Division of Mine Safety and Health, Arlington, VA, Edward Hugler, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondent U.S. Department of Labor.

Emily Toler Scott, Edward Waldman, April Nelson, Patricia Silvey, U.S. Department of Labor, Division of Mine Safety and Health, Arlington, VA, for Respondent Mine Safety and Health Administration.

Petition for Review of a Decision of the Federal Mine Safety and Health Administration, Agency No. MSHA-2014-0030

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Petitioners National Mining Association, National Stone, Sand & Gravel Association, Portland Cement Association, American Iron & Steel Institute, Georgia Mining Association, and Georgia Construction Aggregate Association (collectively, "petitioners") have filed a petition for review of Respondents United States Secretary of Labor and Mine Safety and Health Administration's ("MSHA" or the "Agency") final rule entitled " Examinations of Working Places in Metal and Nonmetal Mines" (the "Final Rule"). 82 Fed. Reg. 7680-95 (Jan. 23, 2017) (to be codified in 30 C.F.R. pts. 56 & 57). Petitioners raise a number of challenges to the Final Rule under the Administrative Procedure Act ( 5 U.S.C. § 551 et seq. ) and the Constitution. After careful review, we deny the petition for review.

I. BACKGROUND

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Mine Act"), regulates the nation's metal and nonmetal mines and promotes miner health and safety. The 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." 30 U.S.C. § 811(a). The Secretary administers the Act through MSHA.

In 1969, MSHA's predecessor agency, the Mining Enforcement and Safety Administration, promulgated advisory standards pursuant to the Mine Act's predecessor statutes, the Federal Coal Mine Health and Safety Act of 1969 and the Federal Metal and Nonmetallic Mine Safety Act of 1966. The Mine Act gave the Secretary the option to either revoke or make mandatory the then-existing advisory standards. 30 U.S.C. § 961(b). MSHA made the standards mandatory. Until the Final Rule was promulgated, those standards’ language had remained unchanged since 1979.

The relevant 1979 standards required that:

• a competent person designated by a mine's operator examine each working place at least once each shift for conditions that may adversely affect safety or health;

• the mine operator promptly initiate appropriate action to correct such conditions; and

• the operator keep records of such examinations for one year and make them available for review by the Secretary or his authorized representative.

30 C.F.R. §§ 56.18002, 57.18002.¹

In June 2016, MSHA published a proposal to revise the above standards. 82 Fed. Reg. at 7681. After six months, during which MSHA held four public hearings and received 73 written comments, MSHA promulgated the Final Rule. The Final Rule requires that:

• an examination of working places be conducted at least once per shift before miners begin work in an area (the "examination requirement");

• the operator promptly notify miners in any affected areas of any conditions found that may adversely affect their safety and health and promptly initiate appropriate action to correct such conditions (the "notification requirement"); and

• a record of the examination be made before the end of the shift that includes the examiners’ name, date of examination, areas examined, conditions found that may adversely affect miners’ health and safety, and date of corrective action taken (the "recording requirement").

82 Fed. Reg. at 7695.

The Final Rule plainly enhances mine operators’ obligations with an aim toward augmenting miner safety. The 1979 standard required one examination of each working place per shift; the more stringent Final Rule requires that the examination occur before each shift. The 1979 standard required prompt corrective action; the Final Rule requires that mine operators notify miners of any adverse conditions as well. And the 1979 standard required records of mine examinations; the Final Rule requires more thorough records.²

The petitioners are various non-profit mining trade associations. They timely filed a petition for review of the Final Rule in this Court under 30 U.S.C. § 811(d), which vests jurisdiction over a challenge to mandatory health or safety standards promulgated by MSHA in the United States Court of Appeals for the District of Columbia Circuit or the circuit where the petitioner resides or has its principal place of business. Petitioners raised a number of challenges to the Final Rule under the Administrative Procedure Act, principally contending (1) that it was not issued in accordance with applicable law because MSHA failed to make the necessary finding of significant risk that would be eliminated or lessened by the Final Rule; (2) that MSHA failed to demonstrate that the Final Rule constituted an improvement over the preexisting standards; and (3) that the Final Rule was arbitrary and capricious. 5 U.S.C. § 706(2)(A), (C). We address these arguments in turn in Parts II, III and IV, and then address in Part V several other arguments of petitioners.³

II. PETITIONERS’ ARGUMENT THAT THE MINE ACT, LIKE THE OSH ACT, REQUIRES A THRESHOLD FINDING OF SIGNIFICANT RISK OF INJURIES UNDER THE PREEXISTING STANDARDS

Petitioners first argue that MSHA failed to make the necessary threshold finding of significant risk under the preexisting standards, and that, therefore, the Final Rule was not issued in accordance with applicable law, as required by the APA. 5 U.S.C. § 706(2)(A) ; see, e.g., Nat'l Mining Ass'n v. Sec'y of Labor, 153 F.3d 1264, 1269 (11th Cir. 1998) (vacating an MSHA rule because the Agency did not make the required finding of feasibility necessary to promulgate the rule). The Mine Act authorizes the Secretary 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." 30 U.S.C. § 811(a). Petitioners specifically argue that the Mine Act's language requires a threshold finding that a current standard presents a "significant risk" to miners that will be eliminated or lessened by the new standard.

Petitioners analogize the Mine Act to the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C. § 651 et seq. The OSH Act authorizes promulgation of "occupational safety and health standards," which it defines as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. §§ 652(8), 655(b) (emphasis added). In Industrial Union Department, AFL-CIO v. American Petroleum Institute, commonly referred to as the Benzene case, the Supreme Court interpreted this language as requiring the Secretary to "make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices." 448 U.S. 607, 642, 100 S. Ct. 2844, 2864, 65 L.Ed.2d 1010 (1980) (plurality opinion).

Petitioners contend that the Mine Act ought to be interpreted in the same way, arguing that the Act imposes a requirement on MSHA to find (1) that "significant risks" are present under existing rules and (2) that new standards are necessary to eliminate those risks. Neither of these requirements have been met, say petitioners. They argue that because the mining industry is perhaps the safest it has ever been, and because MSHA has not shown that the dangers still present in mining are associated with the 1979 examination standards, MSHA cannot show that its changes to those standards will eliminate any existing risks.

We do not agree that the Mine Act imposes a requirement that MSHA makes a threshold finding that such a "significant risk" exists before regulating a particular aspect of mine operations. A review of the Supreme Court's decision in the Benzene case is instructive. There, the Court reviewed the OSH Act's requirement that Occupational Safety and Health Administration ("OSHA")-promulgated standards be "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. § 652(8) (emphasis added). OSHA had promulgated a standard designating the maximum exposure limit to the toxic substance benzene. The previous standard had been 10 parts per million. Construing its mandate as authorizing standards to produce a virtually risk-free workplace to the extent possible, OSHA proposed a rule reducing the maximum exposure limit to 1 part per million. The Court held that, while OSHA's 10 parts per million limit was amply justified, there...