National Min. Ass'n v. Mine Safety and Health Admin., Nos. 92-1288

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore SENTELLE, RANDOLPH and ROGERS; PER CURIAM
Citation116 F.3d 520
Parties, 1997 O.S.H.D. (CCH) P 31,369 NATIONAL MINING ASSOCIATION, Petitioner, v. MINE SAFETY AND HEALTH ADMINISTRATION and Secretary of Labor, Respondents, United Mine Workers of America, International Union, Intervenor. to 92-1290, 96-1150 and 96-1155.
Decision Date17 June 1997
Docket NumberNos. 92-1288

Page 520

116 F.3d 520
325 U.S.App.D.C. 176, 1997 O.S.H.D. (CCH) P 31,369
NATIONAL MINING ASSOCIATION, Petitioner,
v.
MINE SAFETY AND HEALTH ADMINISTRATION and Secretary of
Labor, Respondents,
United Mine Workers of America, International Union, Intervenor.
Nos. 92-1288 to 92-1290, 96-1150 and 96-1155.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 8, 1997.
Decided June 17, 1997.

Page 524

[325 U.S.App.D.C. 180] On Petitions for Review of Orders of the Federal Mine Safety and Health Administration.

Page 525

[325 U.S.App.D.C. 181] Henry Chajet, argued the cause, for petitioner National Mining Association, with whom Harold P. Quinn, Jr. and Michael F. Duffy, Washington, DC, were on the briefs.

Judith Rivlin, Washington, DC, argued the cause, for petitioner United Mine Workers of America, International Union, with whom Grant Crandall was on the briefs. Mary L. Jordan and Robert H. Stropp, Jr., entered appearances.

Jerald S. Feingold, Attorney, Arlington, VA, United States Department of Labor, argued the cause, for respondents, with whom J. Davitt McAteer, Acting Solicitor, Mount Hope, WV, W. Christian Schumann, Counsel, Washington, DC, and Edward J. Sexauer, Attorney, were on the brief.

Before SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed PER CURIAM. 1

PER CURIAM:

These consolidated cases seek review of a rulemaking of the Mine Safety and Health Administration ("MSHA"). Representatives of both the industry and the miners challenge the rulemaking on a number of grounds, only some of which merit discussion. We hold that the agency failed to give adequate notice of its intention to require preshift examinations at fixed-time intervals as opposed to on a shift-by-shift basis. As to all other issues we deny the petitions for review and uphold the agency's rulemaking.

I. Background

This case first arose as a challenge to a set of safety rules proposed by MSHA in 1988, 53 Fed.Reg. 2382 (1988), and finalized in 1992, 57 Fed.Reg. 20,868 (1992). The rulemaking was intended to "upgrade existing provisions consistent with advances in technology, eliminate unnecessary reporting and recordkeeping requirements, minimize conflicting provisions, delete irrelevant standards, simplify and consolidate existing standards, address known hazards not now covered by standards, and clarify and reorganize standards, where necessary." 53 Fed.Reg. 2382. Predecessor organizations of the National Mining Association ("NMA"), representing the industry, and the United Mine Workers of America, International Union ("UMWA" or the "Union"), representing the miners, challenged the 1992 rule in this Court. The Court stayed the effect of one provision, 30 C.F.R. § 75.321(a), which regulates air quality standards in bleeder entries. American Mining Congress v. Secretary of Labor, No.92-1288 (D.C.Cir. Nov. 10, 1992) (order). MSHA voluntarily stayed the effect of two additional provisions, 30 C.F.R. § 75.313, relating to fan stoppages, and 30 C.F.R. § 75.344(a)(1), regulating compressors. 57 Fed.Reg. 53,856 (1992). The remaining sections of the rule became effective on November 16, 1992. See 57 Fed.Reg. 34,683 (1992).

MSHA then agreed to further review the 1992 rule and to propose revisions. With the consent of the parties the Court then stayed the petitions pending the agency's review. American Mining Congress v. Secretary of Labor, No.92-1288 (D.C.Cir. Aug. 17, 1993) (order); American Mining Congress v. Secretary of Labor, No. 92-1288 (D.C.Cir. Oct.6, 1994) (order). In 1994, the agency published a proposed rule that adopted revisions to the 1992 version. 59 Fed.Reg. 26356. The agency published a final rule in 1996. 61 Fed.Reg. 9764. NMA and UMWA petitioned this Court for review in cases that were consolidated with the earlier challenges. The Court stayed the effect of two provisions, 30 C.F.R. §§ 75.313(d)(2) and 75.321(a)(2). National Mining Assoc. v. MSHA, No. 96-1150 (D.C.Cir. June 7, 1996) (orders). The remainder of the rule became effective in June, 1996.

II. NMA's Challenges

A. 30 C.F.R. § 75.321(a)(2)--Air Quality Standards in Bleeder Entries

NMA challenges, on a number of grounds, the requirement that the oxygen

Page 526

[325 U.S.App.D.C. 182] level in bleeder entries remain at or above 19.5 percent. 30 C.F.R. § 75.321(a)(2). NMA asserts, first, that the requirement violates the Federal Mine Safety and Health Act ("Mine Act" or the "Act"), 30 U.S.C. §§ 801-962. The Mine Act requires an oxygen level of 19.5 percent in the "active workings" of the mine. 30 U.S.C. § 863(b). An "active working[ ]" is defined as "any place in a coal mine where miners are normally required to work or travel." 30 U.S.C. § 878(g)(4). A bleeder entry, which is a ventilation device used to move methane and other gases away from areas where miners work, is entered at least once a week for inspection. See 30 C.F.R. § 75.364(a). A number of administrative law judges have held that a bleeder entry is not part of the mine's active workings. See, e.g., Rochester & Pittsburgh Coal Company, 11 FMSHRC 1318, 1321 (1989); Rushton Mining Company, 11 FMSHRC 1506, 1507 (1989). See also 30 U.S.C. § 863(z)(2) (stating that bleeder systems should be maintained "to protect the active workings of the mine"); 30 C.F.R. § 75.334(b)(1) (describing bleeder systems as ventilation devices used to move methane and other gases "away from active workings."). NMA asserts that Congress's decision to provide the 19.5 percent standard only for active workings mandates a lower standard for other areas, such as the bleeder systems. The agency interprets the Act to allow for oxygen standards in any area of the mine where miners require adequate oxygen supplies.

Under the familiar rules of Chevron deference, we find nothing in the Mine Act that prohibits the regulation at issue. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, a court first asks "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. at 2781. If so, the matter is settled, "for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781-82. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute," id. at 843, 104 S.Ct. at 2781 meaning one that is "reasonable and consistent with the statute's purpose." Nuclear Information Resource Service v. NRC, 969 F.2d 1169, 1173 (D.C.Cir.1992).

We cannot say, under the first step of Chevron, that the Mine Act unambiguously prohibits the agency from applying the 19.5 percent oxygen requirement to bleeder entries. NMA's interpretation of the Act employs a version of expressio unius est exclusio alterius; because Congress explicitly mandated safety standards in some areas of the mine, the agency is prohibited from adopting regulations not specifically provided for in the statute. We do not believe that NMA's reading "give[s] effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. Quite to the contrary, we find it to be implausible. Congress frequently adopts specific safety standards and at the same time delegates the task of supplementing the standards to agency expertise. The Mine Act specifically provides that the standards specified by Congress are not exhaustive. Section 101(a) of the 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). To interpret the safety standards provided by the Act as necessarily exclusive of more extensive protections is to annul the agency's authority under Section 101(a).

Turning then to Chevron Step Two, we cannot conclude that the agency's interpretation of the Act is unreasonable. The agency has "promulgate[d] ... improved mandatory health or safety standards for the protection of life and prevention of injuries" as authorized by Section 101(a). In doing so, the agency has borrowed a standard endorsed by Congress elsewhere in the Act. See 30 U.S.C. § 863(b). The agency's interpretation appears eminently "reasonable and consistent with the statute's purpose." Nuclear Information, 969 F.2d at 1173. We therefore reject NMA's statutory challenge.

Page 527

[325 U.S.App.D.C. 183] NMA also asserts that 30 C.F.R. § 75.321(a)(2) is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §§ 553, 706, because the agency failed to identify its reasons for requiring an oxygen level of 19.5 percent as opposed to the 18 percent oxygen standard favored by the industry. When regulating under Section 101(a) the agency is required, as always, to consider the relevant alternatives and identify the reasons for its preference. See Motor Vehicle Mfrs. Assoc. v. State Farm, 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983). As part of its explanation, the agency must "respond to specific challenges that are sufficiently central to its decision." International Fabricare Institute v. EPA, 972 F.2d 384, 389 (D.C.Cir.1992). Several industry commenters voiced support for an 18 percent oxygen level, often citing to a recommendation by the American Conference of Governmental Industrial Hygienists ("ACGIH"). See, e.g., Comments of AMC, BCOA, and NCA; Comments of Kerr-McGee Coal Corp. The agency specifically acknowledged these comments and defended its choice by noting that bleeder entries are examined weekly by a person traveling alone who often is required to remain in the bleeder entry for an extended period. The agency cited a study by the National Institute for Occupational Safety and Health ("NIOSH") that recommends a 19.5...

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    ...‘fairness to affected parties,’ and ‘an opportunity to develop evidence in the record.” Nat'l Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520, 530–31 (D.C.Cir.1997) (internal citations omitted). The Final Rule was adopted as proposed, and interested parties were apprised of the ba......
  • Afl-Cio v. Chao, No. CIV.A. 03-2464(GK).
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    • January 22, 2004
    ...she did not adopt wholesale the conclusions of studies submitted by Plaintiff. See Nat'l Min. Ass'n v. Mine Safety and Health Admin., 116 F.3d 520, 549 (D.C.Cir.1997) (holding that the agency did not act arbitrarily and capriciously "simply by failing to adopt the Union's recommendations").......
  • In re Section 301 Cases, 21-00052-3JP
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    ...The standard that an agency's response must meet "is not particularly demanding." Nat'l Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520, 549 (D.C. Cir. 1997) (per curiam) (quotations and citation omitted). A court will not, however, undertake a "laborious examination of the record......
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59 cases
  • Louisiana Federal Land Bank v. Farm Credit Admin., No. Civ.A.00-1582(RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 23, 2001
    ...Rule. See National Elec. Mfrs. Ass'n v. EPA, 99 F.3d 1170, 1172 (D.C.Cir. 1996); National Mining Ass'n v. Mine Safety and Health Admin., 116 F.3d 520 (D.C.Cir.1997). This Circuit has held that "while the `logical outgrowth' standard does not require the agency to assiduously lay out every d......
  • Research v. Fed. Trade Comm'n, Civil Case No. 13–1974 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 30, 2014
    ...‘fairness to affected parties,’ and ‘an opportunity to develop evidence in the record.” Nat'l Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520, 530–31 (D.C.Cir.1997) (internal citations omitted). The Final Rule was adopted as proposed, and interested parties were apprised of the ba......
  • Afl-Cio v. Chao, No. CIV.A. 03-2464(GK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 22, 2004
    ...she did not adopt wholesale the conclusions of studies submitted by Plaintiff. See Nat'l Min. Ass'n v. Mine Safety and Health Admin., 116 F.3d 520, 549 (D.C.Cir.1997) (holding that the agency did not act arbitrarily and capriciously "simply by failing to adopt the Union's recommendations").......
  • In re Section 301 Cases, 21-00052-3JP
    • United States
    • U.S. Court of International Trade
    • April 1, 2022
    ...The standard that an agency's response must meet "is not particularly demanding." Nat'l Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520, 549 (D.C. Cir. 1997) (per curiam) (quotations and citation omitted). A court will not, however, undertake a "laborious examination of the record......
  • Request a trial to view additional results
1 books & journal articles
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