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National Industrial Sand Association v. Marshall

decided: May 16, 1979.

NATIONAL INDUSTRIAL SAND ASSOCIATION, A DELAWARE CORPORATION, 900 SPRING STREET, SILVER SPRING. MARYLAND; PENNSYLVANIA SAND & GRAVEL ASSOCIATION, 240 NORTH THIRD STREET, HARRISBURG, PENNSYLVANIA; NATIONAL READY MIXED CONCRETE ASSOCIATION, A PENNSYLVANIA CORPORATION, 900 SPRING STREET, SILVER SPRING, MARYLAND; PENNSYLVANIA AGGREGATES ASSOCIATION, 3509 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA; D. M. STOLTZFUS & SON, INC., TALMAGE, PENNSYLVANIA; FANWOOD CRUSHED STONE COMPANY, 141 CENTRAL AVENUE, WESTFIELD, NEW JERSEY; CENTRAL BUILDERS SUPPLY COMPANY, P.O. BOX 152, SUNBURY, PENNSYLVANIA; HARMONY SAND & GRAVEL, INC., RURAL DELIVERY ONE, BOX 163, BELVIDERE, NEW JERSEY; PIKE COUNTY SAND & GRAVEL COMPANY, 100 FOURTH STREET, HONESDALE, PENNSYLVANIA; SOUTH RIVER SAND COMPANY, P.O. BOX 196, OLD BRIDGE, NEW JERSEY; DAVID M. BURKHOLDER, INC., RURAL DELIVERY THREE, EPHRATA, PENNSYLVANIA; HASBROUCK SAND & GRAVEL, INC., RURAL DELIVERY FOUR, TITUSVILLE, PENNSYLVANIA; WEL-DON CONCRETE CORPORATION, 141 CENTRAL AVENUE, WESTFIELD, NEW JERSEY; GEORGE F. PETTINO, INC., 123 COULTER AVENUE, ARDMORE, PENNSYLVANIA; ROHRER'S QUARRY, INC., RURAL DELIVERY THREE, LITIZ, PENNSYLVANIA; DUNRITE SAND & GRAVEL COMPANY, P.O. BOX 681, VINELAND, NEW JERSEY; W. S. FREY COMPANY, 157 EAST MARKET STREET, YORK, PENNSYLVANIA; ERIE SAND & GRAVEL COMPANY, P.O. BOX 253, ERIE, PENNSYLVANIA; JESSIE S. MORIE & SON, INC., P.O. BOX 35, MAURICETOWN, NEW JERSEY; WARNER COMPANY, 1721 ARCH STREET, PHILADELPHIA, PENNSYLVANIA; NEW ENTERPRISE STONE & LIME COMPANY, NEW ENTERPRISE, PENNSYLVANIA; LOCKHART SAND COMPANY, P.O. BOX 446, VINCENTOWN, NEW JERSEY; GLACIAL SAND & GRAVEL, INC., P.O. BOX 10, KITTANNING, PENNSYLVANIA; NATIONAL LIMESTONE QUARRY, INC., P.O. BOX 397, MIDDLEBURG, PENNSYLVANIA; TRAP ROCK INDUSTRIES, INC., P.O. BOX 419, KINGSTON, NEW JERSEY; TIONESTA SAND & GRAVEL, INC., P.O. BOX 307, TIONESTA, PENNSYLVANIA, PETITIONERS; THE CHINA CLAY PRODUCERS, INTERVENOR
v.
F. RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, 200 CONSTITUTION AVENUE, N.W., WASHINGTON, D.C. 20210 AND ROBERT B. LAGATHER, ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, 4015 WILSON BOULEVARD, ARLINGTON, VIRGINIA 22203, RESPONDENTS; THE COUNCIL OF THE SOUTHERN MOUNTAINS, INC., P.O. DRAWER N., CLINTWOOD, VIRGINIA 24228, PETITIONER V. F. RAY MARSHALL, IN HIS CAPACITY AS SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, 200 CONSTITUTION AVENUE, NW, ROOM S-2018, WASHINGTON, DC 20210 AND ROBERT LAGATHER, IN HIS CAPACITY AS ASSISTANT SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, 4015 WILSON BOULEVARD, ARLINGTON, VIRGINIA 22203, RESPONDENTS; CHINA CLAY PRODUCERS, INTERVENOR



Petition for Review U.S. Department of Labor (Mine Safety & Health Administration)

Before Seitz, Chief Judge, and Hunter and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

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),*fn1 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.*fn2 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.*fn3 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.

I. THE TRAINING REGULATIONS.

Statutory authorization for the Secretary to promulgate training regulations is set forth in section 115(a) of the Mine Act:*fn4

(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,*fn5 which incorporates by reference section 4 of the Administrative Procedure Act (APA).*fn6 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).*fn7 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"*fn8 comprised the membership of the Committee.*fn9 The Advisory Committee met in a number of sessions culminating in the publication of final regulations on October 13, 1978.*fn10

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.*fn11 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.*fn12 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.*fn13 Third, new task training must be provided to experienced miners assigned to a task in which they have had no previous experience.*fn14 Fourth, eight hours of annual refresher training must be provided for all miners.*fn15 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.*fn16

Each operator is required to submit to the Mine Safety and Health Administration (MSHA) a training plan which encompasses the features described above.*fn17 All training pursuant to these plans must be provided by MSHA-approved instructors.*fn18 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.*fn19 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.*fn20 Operators are required to keep records of the training actually provided to miners.*fn21 Miners, in turn, are entitled to compensation at their regular rates of pay for the time spent in training courses.*fn22

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.*fn23 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 instruction of new surface miners in training conditions which duplicate actual working conditions, (2) fail to establish explicit guidelines for the development and use of training facilities which duplicate actual underground conditions and fail to provide objective criteria for the approval of such facilities, and (3) fail to specify adequately the required scope of instruction in miners' rights. CSM also makes the general objection that the regulations it challenges are invalid because the regulations and Supplementary Information reflect insufficient analysis of materials contained in the administrative record.

II. STANDARD OF REVIEW.

Judicial review of regulations promulgated by the Secretary is provided by section 101(d) of the Mine Act.*fn24 Left undefined by this section though, is the standard of review under which the Secretary's regulations are to be tested. This interstice has been filled by the legislative history:*fn25

In reviewing standards, the Committee intends the Court of Appeals to apply the arbitrary and capricious test, the criterion usually applied to rules issued in accordance with the procedures in section 553 of Title 5 of the United States Code. This test would require the reviewing court to scrutinize the Secretary's action to determine whether it was rational in light of the evidence before him and reasonably related to the law's purposes, and is, in the Committee's view, the appropriate test for judicial review of legislative-type proceedings involving policy judgments in areas where specific factual findings cannot always realistically be made.

As this statement indicates, and as all parties agree, the Secretary's regulations are to be reviewed in accordance with the standards prescribed by the Administrative Procedure Act.

The scope of judicial review of agency action is set forth in section 10(e) of the Administrative Procedure Act:*fn26

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observation of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Of particular relevance to review of agency rulemaking are those subsections which require that agency action be set aside when it is beyond the scope of statutory authority or when it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Indeed, these are the two grounds upon which the regulations are attacked in this case.*fn27 It is to the judicial gloss which has been placed on these subsections that we now turn.

A. Scope of Statutory Authority.

We are required by the judicial review provisions of the APA to consider whether the Secretary acted within the scope of his statutory authority. "This determination naturally begins with a delineation of the scope of the Secretary's authority and discretion."*fn28 Statutory authorization for promulgation of the regulations at issue here is quite broad. Minimum standards for health and safety training programs are set forth in the statute.*fn29 Beyond these statutory minima, the statute simply directs that "(t)he Secretary shall promulgate regulations with respect to such health and safety training programs (as are required by the Mine Act) not more than 180 days after the effective date of the Federal Mine Safety and Health Amendments Act of 1977."*fn30 No sharp constraints on the Secretary's authority are indicated by this sweeping language.*fn31 Indeed, the parties focus less upon the authority conferred on the Secretary by statute than upon the weight to be accorded the Secretary's interpretation of the Mine Act as it relates to his own authority. The petitioners contend that review concerning the scope of the Secretary's authority involves questions of law and must therefore be plenary and de novo. Not surprisingly, the Secretary rejoins that great deference must be given, as a matter of law, to his construction of the Mine Act.

We think that the weight which we should ascribe to the Secretary's interpretation of the Mine Act is aptly set forth in the Supreme Court's opinion in Udall v. Tallman, 380 U.S. 1, ...


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