National Indus. Sand Ass'n v. Marshall, s. 78-2446
| Citation | 601 F.2d 689 |
| Decision Date | 16 May 1979 |
| Docket Number | 79-1159,Nos. 78-2446,s. 78-2446 |
| Parties | , 1979 O.S.H.D. (CCH) P 23,576 NATIONAL INDUSTRIAL SAND ASSOCIATION, a Delaware Corporation, et al., Petitioners, The China Clay Producers, Intervenor, v. F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, and Robert B. Lagather, Assistant Secretary for Mine Safety and Health Administration, United States Department of Labor, Respondents. The COUNCIL OF the SOUTHERN MOUNTAINS, INC., Petitioner, v. F. Ray MARSHALL, in his capacity as Secretary of Labor, United States Department of Labor, and Robert Lagather, in his capacity as Assistant Secretary of Labor, Mine Safety and Health Administration, Respondents, China Clay Producers, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
David S. Smith, Michael T. Heenan (argued), Kilcullen, Smith & Heenan, Washington, D. C., for petitioners National Industrial Sand.
C. Christopher Hagy, Gordon O. Pehrson, Jr. (argued), William H. Penniman, John D. Sharer, Sutherland, Asbill & Brennan, Washington, D. C., for intervenor The China Clay Producers.
Carin Ann Clauss, Sol. of Labor, Morell E. Mullins, Associate Sol., Edward P. Clair, Thomas A. Mascolino, Counsel, Washington, D. C., Manuel R. Lopez, Dennis R. McDaniel, Ronald E. Meisburg (argued), Robert C. Snashall, Jr., Attys., Washington, D. C., Alan Yamamoto, Atty., U. S. Dept. of Labor, Arlington, Va., J. Davitt McAteer (argued), L. Thomas Galloway, Center for Law and Social Policy, Washington, D. C., for petitioner The Council of the Southern Mountains, Inc.
Before SEITZ, Chief Judge, and HUNTER and GARTH, Circuit Judges.
We are presented on this appeal with challenges by mine operators and by miners to training regulations which have been promulgated by the Secretary of Labor.
Section 115 of the Federal Mine Safety and Health Act of 1977 (Mine Act), 1 requires every mine operator to have a health and safety training program for miners. Each program must be approved by the Secretary of Labor (Secretary). The Secretary is required to publish regulations governing such programs. In accordance with this requirement, regulations were published by the Secretary on October 13, 1978. 2 The training regimen established by the regulations is rigorous and generally costly, and the scope of its coverage is broad.
Judicial review of the Secretary's regulations is provided for in the Mine Act itself. 3 Two petitioners, the National Industrial Sand Association, Et al. (NISA), and the Council of the Southern Mountains, Inc. (CSM), and one intervenor, the China Clay Producers (CCP), have sought review of the training regulations in this court. Both NISA and CCP represent the interests of mine operators, and they attack certain regulations which would entail a high compliance cost for mine operators. CSM represents the interests of miners; it contends that the regulations, in certain respects, fail to protect adequately the interests of miners. All challengers contend that the offending regulations are invalid because they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and because they are in excess of the Secretary's statutory authority.
Our review of the training regulations leads us to the conclusion that they represent a reasonable and statutorily authorized exercise of the Secretary's rulemaking power. We do not consider the applicability of these regulations to the dredging industry, however, because we have determined that this issue is not properly presented for review at this time.
Statutory authorization for the Secretary to promulgate training regulations is set forth in section 115(a) of the Mine Act: 4
(a) Each operator of a coal or other mine shall have a health and safety training program which shall be approved by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training programs not more than 180 days after the effective date of the Federal Mine Safety and Health Amendments Act of 1977. Each training program approved by the Secretary shall provide as a minimum that
(1) new miners having no underground mining experience shall receive no less than 40 hours of training if they are to work underground. Such training shall include instruction in the statutory rights of miners and their representatives under this chapter, use of the self-rescue device and use of respiratory devices, hazard recognition, escapeways, walk around training, emergency procedures, basic ventilation, basic roof control, electrical hazards, first aid, and the health and safety aspects of the task to which he will be assigned;
(2) new miners having no surface mining experience shall receive no less than 24 hours of training if they are to work on the surface. Such training shall include instruction in the statutory rights of miners and their representatives under this chapter, use of the self-rescue device where appropriate and use of respiratory devices where appropriate, hazard recognition, emergency procedures, electrical hazards, first aid, walk around training and the health and safety aspects of the task to which he will be assigned;
(3) all miners shall receive no less than eight hours of refresher training no less frequently than once each 12 months, except that miners already employed on the effective date of the Federal Mine Safety and Health Amendments Act of 1977 shall receive this refresher training no more than 90 days after the date of approval of the training plan required by this section;
(4) any miner who is reassigned to a new task in which he has had no previous work experience shall receive training in accordance with a training plan approved by the Secretary under this subsection in the safety and health aspects specific to that task prior to performing that task;
(5) any training required by paragraphs (1), (2) or (4) shall include a period of training as closely related as is practicable to the work in which the miner is to be engaged.
Procedures for promulgation of the Secretary's regulations are set forth in section 101 of the Mine Act, 5 which incorporates by reference section 4 of the Administrative Procedure Act (APA). 6 This section of the APA prescribes notice and comment procedures for informal rulemaking. In accordance with these procedures, the Secretary developed a set of draft regulations designed to implement section 115 of the Mine Act. These draft regulations were then submitted for review to an Advisory Committee composed pursuant to section 102(c). 7 Representatives from three groups "labor," "industry," and those "individuals who have no economic interests in the coal or other mining industry, and who are not operators, miners, or officers or employees of the Federal Government or any State or local government" 8 comprised the membership of the Committee. 9 The Advisory Committee met in a number of sessions culminating in the publication of final regulations on October 13, 1978. 10
As finally promulgated, the regulations contain separate subparts with different substantive requirements and implementation schedules applicable to underground miners and to miners working at surface mines and surface areas of underground mines. 11 This categorization was designed to accommodate basic differences in the conditions under which underground and surface miners worked. The operators of both surface and underground mines, however, are required to provide five different types of training. First, training must be provided for all new miners who have no previous experience. 12 Some of this new miner training must be provided before the newly hired miners are assigned work duties. Second, training must be provided for newly employed experienced miners. 13 Third, new task training must be provided to experienced miners assigned to a task in which they have had no previous experience. 14 Fourth, eight hours of annual refresher training must be provided for all miners. 15 Fifth, hazard training instruction in the recognition of basic mine hazards must be provided to a certain category of persons defined as miners who are not directly involved in traditional mining activities. 16
Each operator is required to submit to the Mine Safety and Health Administration (MSHA) a training plan which encompasses the features described above. 17 All training pursuant to these plans must be provided by MSHA-approved instructors. 18 The Secretary contemplates that operators may provide this training individually, or may combine in cooperative ventures or avail themselves of governmental or private institutional facilities in order to provide the training in a more efficient manner. 19 For purposes of the training regulations, the term "operator" is defined in such a way that mining companies will be required to provide training to certain employees of independent contractors performing services for the mining companies. 20 Operators are required to keep records of the training actually provided to miners. 21 Miners, in turn, are entitled to compensation at their regular rates of pay for the time spent in training courses. 22
Dissatisfaction with these regulations was focussed on the definition of "operator" and on various substantive requirements for the training programs. NISA challenged those regulations which (1) require operators to train nonemployees and persons not directly engaged in the mining process, (2) require operators to provide training only with MSHA-approved instructors, and (3) direct the provision of prework assignment training. 23 It also seeks to challenge a statement contained in the Supplementary Information published with the regulations which indicates that the Secretary intends to apply the training regulations to the dredging industry.
CSM objects to the regulations insofar as they (1) fail to require...
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