National Mining Ass'n v. Secretary of Labor

Citations: 153 F.3d 1264; 1998 CCH OSHD 31,659; 1998 U.S. App. LEXIS 21648Docket: 98-6159

Court: Court of Appeals for the Eleventh Circuit; September 4, 1998; Federal Appellate Court

Original Court Document: View Document

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The National Mining Association (NMA) and the Alabama Coal Association challenge a Mining Safety and Health Administration (MSHA) finding that permits coal dust measurement in mines using single-shift sampling instead of the traditional multi-shift method. NMA argues against this new sampling method on both substantive and procedural grounds. The Eleventh Circuit vacated the MSHA's finding.

The background includes the passage of the Federal Coal Mine and Safety Act in 1969, aimed at reducing coal dust inhalation, which causes Black Lung Disease. This act set interim standards for coal dust levels, later re-enacted in the Federal Mine Safety and Health Act of 1977 (Mine Act). Under 30 U.S.C. 841(a), the Secretary of Labor can replace interim standards with improved ones, but must do so under 30 U.S.C. 811(a), which mandates that standards ensure no material impairment of health based on the best available evidence and consider scientific data, feasibility, and experience under relevant laws.

Specifically, 30 U.S.C. 842(b)(2) requires that the average coal dust concentration for miners per shift not exceed 2.0 mg/m3, with average concentration defined as representing atmospheric conditions for each shift unless otherwise justified by the Secretary. Historically, a 1971 finding determined that single-shift sampling would not accurately represent mine conditions, a conclusion later finalized in 1972. MSHA's recent attempts to rescind this finding and implement single-shift sampling were communicated through two notices in the Federal Register in 1994, which indicated a shift towards this new measurement method as part of an effort to address sample tampering by mine operators.

Following the SIP, MSHA determined that multi-shift sampling was unreliable, as it failed to result in citations in areas where the SIP indicated miner overexposure. The Federal Mine Safety and Health Review Commission vacated citations issued under the SIP due to MSHA's noncompliance with rulemaking procedures outlined in 30 U.S.C. 811. MSHA also rescinded the 1971/72 finding, citing advancements in air sampling technology, including improvements in calibration, weighing accuracy, and sampling pumps since 1971. 

The accuracy of single-shift sampling remains contested, with the NMA claiming it leads to erroneous citations for coal mine operators, while MSHA argues that single-shift measurements are more precise as they identify peak dust levels that may be obscured in multi-shift averages. MSHA noted that multi-shift measurements were highest during the first shift, suggesting operators could later manipulate dust levels. This controversy prompted an extended public comment period and hearings, leading MSHA to redefine 'accurately represent' under 30 U.S.C. 842(f) and issue the Joint Finding and Noncompliance Determination Notice in February 1998, which rescinded the earlier finding.

NMA raised procedural objections under the Mine Act, APA, and RFA, focusing on the Mine Act's requirements in 30 U.S.C. 811. MSHA contended that single-shift measurements are not a mandatory health and safety standard or, if they are, complied with procedural requirements. However, the agency's interpretation of its governing statute is typically granted deference under the Chevron doctrine, although this deference is not required for pure statutory construction or issues outside the agency's expertise. The conclusion reached is that MSHA's interpretations of 30 U.S.C. 811(a)(6) are incorrect, asserting that the use of single-shift measurements constitutes a health and safety standard as defined in 30 U.S.C. 802(l).

Section 842(f) establishes the framework for single-shift sampling, which is categorized as an interim mandatory health standard under 841(a). This section specifies that interim standards will remain effective until they are replaced by improved mandatory health standards. Single-shift sampling is deemed an improved standard, superseding the previously used multi-shift sampling methods. Relevant case law, including United Mine Workers v. Dole, supports the interpretation that a mandatory standard encompasses any new standard meant to replace an existing one.

According to 841(a), any new standard must be created following the procedures outlined in Section 811. The Federal Mine Safety and Health Review Commission, in Secretary of Labor v. Keystone Coal Mining Corp., upheld that MSHA must adhere to 811 procedures when opting not to use single-shift measurements. This indicates a clear obligation for MSHA to follow these procedures if it decides to implement single-shift measurements.

MSHA contends that it has complied with 811, arguing that it need only follow the procedural aspects, specifically suggesting that not all provisions of 842-846 necessitate rulemaking under 811. However, 841(a) does not differentiate between these provisions regarding compliance with 811, and 842(f) explicitly mandates adherence to 811 procedures. Additionally, MSHA's argument that the 2.0 mg/m3 standard satisfies 811(a)(6) requirements is flawed, as the language of 841(a) clearly states that standards must align with 811’s provisions. 

The interpretation of 811(a)(6) as non-discretionary, recent MSHA rulemakings acknowledging feasibility requirements, and MSHA's reversal of its previous sampling policies collectively reinforce that all provisions of 811 must be observed. Thus, MSHA has not adequately followed the necessary requirements for implementing single-shift sampling, which includes public notice, comment opportunities, hearings if requested, and proper publication in the Federal Register.

MSHA has met initial requirements but must also comply with 30 U.S.C. 811(a)(6), which necessitates demonstrating that a new standard ensures no miner suffers material health impairment based on the best evidence, utilizes the latest scientific data, is feasible, and draws from experience under the Mine Act and other safety laws. The review revealed a lack of findings on economic feasibility, which aligns with MSHA's position in the Joint Finding that feasibility does not need to be addressed. Consequently, MSHA is found to have failed to comply with 811(a)(6), leading to the vacating of the Joint Finding. NMA's first challenge under the Administrative Procedure Act regarding lack of notice about surface mines is rejected, as MSHA's sampling program has consistently applied to these mines and referenced relevant regulations. NMA's second challenge, asserting reliance on undisclosed material, is also dismissed since the information used post-record closure was neither new nor critical. Additionally, NMA's challenge under the Regulatory Flexibility Act is rejected; the Secretary's certification that single-shift sampling will not significantly impact small entities satisfies Section 605(b) requirements but does not prove the rule's economic feasibility.