National Min. Ass'n v. Chao

Decision Date09 August 2001
Docket NumberNo. CIV. 00-3086(EGS).,CIV. 00-3086(EGS).
Citation160 F.Supp.2d 47
PartiesNATIONAL MINING ASSOCIATION, et al., Plaintiffs, v. Elaine L. CHAO, et al., Defendants.
CourtU.S. District Court — District of Columbia

Mark E. Solomons, Michael R. Goodstein, Arter & Hadden, LLP, Washington, DC, Attorneys for Plaintiffs.

Sandra Schraibman, Gail Walker, Lisa M. Bornstein, U.S. Department of Justice, Civil Division, Washington, DC, Donald Shire, Rae Ellen James, Michael Denney, U.S. Department of Labor, Office of the Solicitor, Washington, DC, Of Counsel for Defendants.

George Cohen, Jeremiah Collins, Bredhoff & Kaiser, Washington, DC, Grant Crandall, Judith Rivlin, United Mine Workers of America, Fairfax, VA, Thomas E. Johnson, Johnson, Jones, Snelling, Gilbert & Davis, P.C., Chicago, IL, Robert F. Cohen, Jr., Cohen, Abate & Cohen, Fairmont, WV, Counsel for Intervenors.


SULLIVAN, District Judge.


Plaintiffs commenced this action for declaratory judgment and injunctive relief and request this Court to enjoin the enforcement of final regulations issued by the defendants on December 20, 2000. The regulations are published at 65 Federal Register 79920-80107 under Title IV of the Federal Coal Mine Health and Safety Act of 1969 as amended, 30 U.S.C. §§ 901-945, also known as the Black Lung Benefits Act("BLBA"). The BLBA provides benefits "to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. § 901(a).

The subject regulations are organized into four principal parts. The first part, 20 C.F.R. Part 718, sets forth the medical proof necessary to establish entitlement to black lung benefits. The second part, 20 C.F.R. Part 722, prescribes criteria for determining whether a state's workers' compensation program provides "adequate coverage," 30 U.S.C. § 931(b), and therefore provides the exclusive means of black lung recovery for miners in that state. The third part, 20 C.F.R. Part 725, sets forth the procedures for adjudicating claims. And the fourth part, 20 C.F.R. Part 726, establishes guidelines for the insurance or self-insurance obligations imposed on coal mine operators by the BLBA.

Pending before the Court are plaintiffs' motion for summary judgment and defendants' motion to dismiss or, in the alternative, for summary judgment. Also pending is intervenors' motion for summary judgment, which does not support defendants' motion to dismiss, but does support defendants' defense of the challenged regulations. The defendants and intervenors have also filed motions to strike certain affidavits attached to plaintiffs' motion for summary judgment as outside the administrative record. Plaintiffs have also filed a motion to vacate and remand the proceedings, based on plaintiffs' contention that the current administration does not support the policy choices behind the rules. Finally, the Coal Mining Compensation Rating Bureau of Pennsylvania filed a motion to appear as amicus curiae. On June 18, 2001, the Court granted plaintiffs' Motion for Partial Voluntary Dismissal of Claims. Count I paragraph 23(q), Count V paragraph 40(r), and Count VIII paragraph 52(f) of plaintiffs' amended complaint were dismissed without prejudice. Additionally, plaintiffs' did not provide any discussion or only cursory argument in their pleadings regarding several of the rules challenged in their amended complaint. Although plaintiffs' argue that they have not abandoned any claims, those for which they provide only cursory argument are deemed conceded.1 See, e.g., Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.Cir.1997).

Upon consideration of the pending motions, the points and authorities in support of and in opposition thereto, the arguments of counsel, and for the reasons set forth herein, the Court will DENY plaintiffs' motion for summary judgment and defendants' motion to dismiss the complaint on jurisdictional grounds. Further, the Court will GRANT intervenors' and defendants' motions for summary judgment defending the challenged regulations.


Plaintiffs are the National Mining Association, the national trade association for the U.S. mining industry, the Old Republic Insurance Company, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and American Mining Insurance Company, commercial insurance carriers, the Ohio Valley Coal Company, an underground coal operator, and the American Iron & Steel Institute, a trade association whose members have or had financial interests in coal mines.

Defendants are Elaine L. Chao, Secretary of Labor, and the United States Department of Labor ("DOL"). The Secretary of Labor is authorized by the BLBA to issue regulations governing the administration of the BLBA. The DOL has principal responsibility for the implementation and administration of the BLBA.

Intervenors are the United Mine Workers of America, a labor union, the National Black Lung Association, an advocacy group representing current and retired coal miners, Mike South, a former coal miner, a clinic that provides screening, diagnostic and other services to patients with black lung disease, and several current or prospective claimants for benefits.

I. Facts Giving Rise to this Litigation

On January 22, 1997, the DOL issued a notice of proposed revisions to the BLBA regulations. 62 Fed.Reg. 3338-3435 (Jan. 22, 1997) (Admin. Record Doc. No. 00001). The DOL allowed interested parties until March 24, 1997 to file comments. That deadline was extended twice. 64 Fed.Reg. 54966 (Oct. 8, 1999) (Admin. Record Doc. No. 00345). The comment period closed on August 21, 1997. At that time, the DOL had received almost 200 comments. The DOL also held two public hearings at which more than 50 people testified; the comments and testimony came mainly from coal mine operators, the National Mining Association, representatives of the insurance and claims-servicing industries, coal miners and their survivors, the National Black Lung Association, the United Mine Workers of America, the American Bar Association, and physicians and attorneys who practice in the field of black lung compensation. Id.

On October 8, 1999, after reviewing the comments and seeking guidance from the National Institute for Occupational Safety and Health ("NIOSH")2 (Admin. Record Doc. Nos. 00327 and 00333), the DOL issued a second notice. 64 Fed.Reg. 54966-55072 (Oct. 8, 1999) (Admin. Record Doc. No. 00345). The second notice revised some of the earlier proposed regulations and included an initial analysis under the Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq. See id. at 55006-09. The DOL allowed interested parties until December 7, 1999 to file comments. That deadline was extended to January 6, 2000. 64 Fed.Reg. 62997 (Nov. 18, 1999) (Admin. Record Doc. No. 00531). The DOL received 37 comments during the second comment period. Id.

On December 20, 2000, after considering the comments and testimony, the advice of NIOSH, and the reports of three expert consultants, the DOL issued final rules and a Final Regulatory Flexibility Analysis. 65 Fed.Reg. 79920-80107 (Dec. 20, 2000) (Admin. Record Doc. No. 01071). On January 19, 2001, the new rules went into effect. Id. at 79920.

On December 22, 2000, plaintiffs filed a complaint for declaratory and injunctive relief challenging several of the final rules. On January 26, 2001, plaintiffs filed an amended complaint, along with a motion for preliminary injunction to stay the effective date of the rules. On February 9, 2001, the Court entered a Preliminary Injunction Order with the consent of defendants and plaintiffs, and "without objection" of the intervenors.

II. Black Lung Disease

Pneumoconiosis is commonly known as "black lung disease." It is "a dreadful and insidious disease which interferes with the respiratory functions of its victims," and "slowly and progressively makes the very act of breathing more and more difficult." Curse v. Dir., OWCP, 843 F.2d 456, 457 (11th Cir.1988) (quoting 124 Cong. Rec. S2,333 (daily ed. Feb. 6, 1978) (statement of Sen. Williams)). It "affects a high percentage of American coal workers with severe, and frequently crippling, chronic respiratory impairment" caused by "longterm inhalation of coal dust." Usery v Turner Elkhorn Mining Co., 428 U.S. 1, 6, 96 S.Ct. 2882, 2888, 49 L.Ed.2d 752 (1976). As the disease advances, it may cause physical disability and ultimately "may induce death by cardiac failure, and may contribute to other causes of death." Id. at 7, 96 S.Ct. 2882.

III. Statutory and Regulatory Back ground

Under the BLBA, the administrative process begins when a miner or his survivor files a claim with the District Director in the DOL's Office of Workers' Compensation Programs ("OWCP"). The District Director investigates the claim, notifies the interested parties, and makes a preliminary determination as to whether the claimant is eligible for benefits and which mine employer should be held responsible. 20 C.F.R. §§ 725.301-725.422. Coal mine operators are primarily responsible for paying these claims. 30 U.S.C. § 932(a). However, if a mine operator responsible for a victim's disability or death cannot be identified or the responsible operator fails to pay the benefits awarded, the claim is paid from the Black Lung Disability Trust Fund ("Trust Fund"), which is financed by an excise tax on coal sales. 30 U.S.C. §§ 932, 934; 26 U.S.C. §§ 4121, 9501(d)(1).3

Either party may appeal the decision of the District Director and request a hearing before an Administrative Law Judge ("ALJ"). 20 C.F.R. §§ 725.450-725.480. The ALJ's decision may be appealed by either party to the DOL's Benefits Review Board, 20 C.F.R. § 725.481, and ultimately to the United States Court of Appeals for the circuit in which the injury occurred. 33 U.S.C. § 921(c); 20...

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