Before: Sentelle, Randolph and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with Nos. 92-1289, 92-1290, 96-1150, 96-1155
On Petitions for Review of Orders of the Federal Mine Safety and Health Administration
Opinion for the Court filed Per Curiam. *fn1
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 rule-making.
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. Section(s) 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. Section(s) 75.313, relating to fan stoppages, and 30 C.F.R. Section(s) 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. Section(s) 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.
A.30 C.F.R. Section(s) 75.321(a)(2)-Air Quality Standards in Bleeder Entries
NMA challenges, on a number of grounds, the requirement that the oxygen level in bleeder entries remain at or above 19.5 percent. 30 C.F.R. Section(s) 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. Section(s) 801-962. The Mine Act requires an oxygen level of 19.5 percent in the "active workings" of the mine. 30 U.S.C. Section(s) 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. Section(s) 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. Section(s) 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. Section(s) 863(z)(2) (stating that bleeder systems should be maintained "to protect the active workings of the mine"); 30 C.F.R. Section(s) 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 (1984). Under Chevron, a court first asks "whether Congress has directly spoken to the precise question at issue." Id. at 842. 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. 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, 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. 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. Section(s) 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. Section(s) 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.
NMA also asserts that 30 C.F.R. Section(s) 75.321(a)(2) is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. Section(s) 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 (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 percent oxygen level for most tasks. NIOSH noted that this level includes a margin of safety. The margin is vital, according to NIOSH, because "oxygen-deficient atmospheres offer little warning of the danger." MSHA then offered two examples of mining accidents caused by inadequate oxygen supplies. The agency concluded:
Because mine examiners are required to work or travel in areas where oxygen-deficient air could occur without warning, and they normally travel and work alone, there must be a requirement that provides them the protection necessary for the performance of their duties under these conditions. It is important that the level for oxygen be established above that identified as resulting in impaired judgment because it is essential that individuals traveling in these areas remain highly alert. The hazards that can exist in bleeder entries and worked-out areas include elevated methane levels, poor footing, loose and unstable roof, and water accumulations. For this reason, the final rule adopts a minimum level of oxygen of 19.5 percent as recommended by NIOSH.
Given this extended discussion, we cannot say that the agency failed to respond to specific challenges or to justify the rule with sufficient clarity. At the same time we reject NMA's contention that the agency was required to demonstrate that an oxygen standard of 18 percent would have posed a significant risk to miners. The 19.5 percent standard is permissible even without a significant risk that miners would be endangered by oxygen levels of 18 percent. In Industrial Union Department, AFL-CIO v. Amer. Petroleum Institute, 448 U.S. 607 (1980), the Supreme Court considered a provision of OSHA that authorizes the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U.S.C. Section(s) 652(8). The Court interpreted the provision to require the agency "to make a threshold finding that ... significant risks are present and can be eliminated or lessened by a change in practices." Industrial Union, 448 U.S. at 642. We note, first, that this case arises under a differently worded statute. Section 101(a) states only that the Secretary is authorized 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. Section(s) 811(a) (emphasis added). Arguably, this language does not mandate the same risk-finding requirement as OSHA.
Even if we were to hold that MSHA was compelled by the statute to identify a significant risk posed by the existing standard, it has done so here. Contrary to the assertions of NMA's counsel at oral argument, the regulations in effect prior to this rulemaking did not impose an 18 percent oxygen requirement; they were silent on the question of air quality in bleeder entries. *fn2 At most, therefore, the agency was required to identify a significant risk associated with having no oxygen standard at all. As noted, the agency has identified a number of significant risks associated with inadequate oxygen supplies including "impairment in the ability to think and pay attention, and a reduction in coordination" as well as "adverse physiological effects." 61 Fed. Reg. 9776. The agency pointed to an instance in which a miner was asphyxiated working in an area with inadequate oxygen supplies, and another instance in which an examiner lost consciousness. Id. The determination that 19.5 percent is appropriate, as opposed to a marginally lower standard, is a technical decision entrusted to the expertise of the agency rather than the conjecture of the Court. In any case, as NMA conceded at oral argument, the Secretary was entitled to " 'err' on the side of overprotection by setting a fully adequate margin of safety." American Petroleum Institute v. Costle, 665 F.2d 1176, 1186 (D.C. Cir.), cert. denied, 455 U.S. 1034 (1982).
Finally, NMA claims that the 19.5 percent standard may, in fact, increase the danger to miners by requiring hazardous changes to ventilation systems. In support, NMA relies on declarations by industry experts. We have granted the Secretary's Motion to Strike these declarations as they are not properly part of the record. See AT&T Information Systems, Inc. v. General Services Administration, 810 F.2d 1233, 1236 (D.C. Cir. 1987). Therefore, NMA's assertions on this point are rejected as speculative.
B.30 C.F.R. Section(s) 75.323-Allegedly conflicting requirements
30 C.F.R. Section(s) 75.323 requires a mine operator to take remedial action "at once" when methane levels in a working place or an intake air course reach 1.0 percent. NMA claims that the requirement that changes be made "at once" is irreconcilable with 30 C.F.R. Section(s) 75.370(d) which states that "[a]ny intentional change to the ventilation system ... that could materially affect the safety and health of the miners ... shall be submitted to and approved by the district manager before implementation." NMA asserts that a change cannot be made "at once" under Section 75.323 if prior approval is necessary under Section 75.370(d). In response to comments on this point the agency stated, MSHA knows of no case where an operator has been prohibited from [making] a necessary correction for a methane problem pending a plan approval. However, in cases where intentional changes are made which could materially affect the safety and health of miners, approval is required before resumption of normal work if the changes affect the information approved in the mine ventilation plan. MSHA recognizes that some ventilation changes take time to accomplish and interprets the phrase "at once" as meaning that the work of making the necessary change to reduce methane levels begins immediately.
61 Fed. Reg. 9777 (emphasis added). The agency's interpretation of its own regulations is entitled to deference unless it is "plainly erroneous or inconsistent with the regulation." Jersey Shore Broadcasting Corp. v. FCC, 37 F.3d 1531, 1536 (D.C. Cir. 1994). Therefore, Section 75.323 requires only that the operator immediately begin taking the necessary steps to reduce methane levels. When approval is required for a ventilation change under Section 75.370(d) the operator is required only to begin to make the necessary correction "at once" and to obtain approval before the resumption of normal work.
NMA also asserts a conflict between Section 75.323 and 30 C.F.R. Section(s) 75.324 which requires that a "person designated by the operator shall supervise any intentional change in ventilation." Section 75.324 also states that when an intentional change in the ventilation system is made "[e]lectric power shall be removed from areas affected by the ventilation change and mechanized equipment in those areas shall be shut off." NMA does not identify what conflict it perceives in the provisions, and we are unable to identify any inconsistency. Section 75.324 could require a mine operator to depower a mine before beginning ventilation changes, however, as authoritatively interpreted, Section 75.323 requires only that the act of depowering begin "at once," not that the repairs be completed immediately. 61 Fed. Reg. 9777. When Section 75.324 requires the operator to depower the plant, immediate depowering followed by the ventilation changes satisfies the requirements of Section 75.323. We therefore reject NMA's claims of conflicting agency requirements.
C.30 C.F.R. Section(s) 75.332(a)(1)-Separate Air Splits
30 C.F.R. Section(s) 75.332(a)(1) provides:
Each working section and each area where mechanized mining equipment is being installed or removed, shall be ventilated by a separate split of intake air directed by overcasts, undercasts or other permanent ventilation controls.
According to NMA, a separate split of intake air should be required only in each area where mechanized mining equipment is being removed. The agency considered the suggestion that it exempt the installation of longwall equipment from the requirement. The suggestion was rejected, as noted in the rule's preamble, because installation of longwall equipment is labor intensive and requires cutting and welding, increasing the possibility of fire or explosion. 61 Fed. Reg. 9782. This discussion indicates that the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action." Motor Vehicle Mfrs., 463 U.S. at 43. We, therefore, reject this challenge to the rule.
D.30 C.F.R. Section(s) 75.360(a)(1)-Preshift Examinations at Fixed Intervals
During preshift examinations, inspectors determine the methane and oxygen levels in a coal mine, ensure that air is flowing through the mine properly, and generally check for hazardous conditions. See 30 C.F.R. Section(s) 75.360; 30 U.S.C. Section(s) 863(d). According to MSHA, preshift examinations are "the primary means of determining the effectiveness of a mine's ventilation system and of detecting developing hazards, such as methane accumulations, water accumulations, and bad roof." 61 Fed. Reg. 9790. The regulation that went into effect in 1996 requires examinations within "3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground." 30 C.F.R. Section(s) 75.360(a)(1).
This regulation reflects a break with past practice. Beginning in 1952 with the Federal Coal Mine Safety Act, ch. 877, Section(s) 209(d)(7), 66 Stat. 692, 704 (1952), Congress required preshift examinations in "gassy" coal mines "within four hours immediately preceding the beginning of a coal-producing shift." The current statute, passed in 1969, requires preshift examinations "[w]ithin three hours immediately preceding the beginning of any shift, and before any miner in such shift enters the active workings of a coal mine." Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, Section(s) 303(d)(1), 83 Stat. 742, 768 (codified at 30 U.S.C. Section(s) 863(d)(1)).
Regulations in effect between 1970 and 1992 incorporated the statutory language, requiring preshift examinations "[w]ithin 3 hours immediately preceding the beginning of any shift." See 35 Fed. Reg. 17,890, 17,900 (1970) (codified at 30 C.F.R. Section(s) 75.303(a) (1991)). The 1988 proposed rule and the 1992 final rule similarly required that "[w]ithin 3 hours preceding the beginning of any shift ... a certified person designated by the operator shall make a preshift examination." See 53 Fed. Reg. 2419; 57 Fed. Reg. 20,922. The rule proposed in 1994 made only a slight grammatical change and read: "a certified person designated by the operator shall make a preshift examination within 3 hours preceding the beginning of any shift." 59 Fed. Reg. 26,394.
Comments submitted to MSHA during the rulemaking convinced the agency that the existing regulatory regime had become unworkable because some mines were no longer using standard eight hour shifts. See 61 Fed. Reg. 9791. If a mine used overlapping shifts beginning at two hour intervals, for example, one might suppose preshift examinations had to be conducted every two hours. To avoid such "controversies and misunderstandings," id., the agency decided to establish some "reasonable period ... after which another examination is necessary," since conditions in a mine may change rapidly, id.
NMA raises both substantive and procedural objections to the new rule.
NMA's main substantive objection is that the regulation misreads "shift" in 30 U.S.C. Section(s) 863(d)(1) to mean an eight hour period. We do not see why the agency's interpretation of "shift" is impermissible. The word certainly can bear this meaning. In many instances and in varied contexts, Congress has treated eight hours as the standard work day. See, e.g., 5 U.S.C. Section(s) 6101(a)(3)(D) (heads of federal agencies to provide that "the basic nonovertime workday may not exceed 8 hours"); 10 U.S.C. Section(s) 2431(b)(4)(B)(i) (for defense acquisition purposes, "most efficient production rate" defined with reference to eight hour shifts); 29 U.S.C. Section(s) 207(e)(7) (under Fair Labor Standards Act, "regular rate" of pay does not include premium pay for work outside "the basic, normal, or regular workday (not exceeding eight hours)"); 42 U.S.C. Section(s) 5196(j)(8) (when construction work is financed with federal funds made available to states for emergency preparedness purposes, construction workers must receive overtime for hours worked "in excess of eight hours in any workday"); 49 U.S.C. Section(s) 28301(a) (for certain railroad employees, "8 hours shall be a day's work and the standard day's work for determining  compensation"). At the least, 30 C.F.R. Section(s) 75.360(a)(1) is a reasonable interpretation of open-ended statutory language. That is enough for us to defer to the agency under the familiar principles of Chevron, 467 U.S. at 842-45.
Even if the regulation departed from the literal terms of 30 U.S.C. Section(s) 863(d)(1), that would not make it invalid. Section 863 contains "interim mandatory safety standards applicable ... until superseded in whole or in part by improved mandatory safety standards promulgated by the Secretary under the provisions of section 811 of this title." 30 U.S.C. Section(s) 861(a). Section 811 authorizes the Secretary of Labor 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. Section(s) 811(a). We see no reason why we should not think of 30 C.F.R. Section(s) 75.360(a)(1) as just such an "improved mandatory safety standard" issued in light of changed circumstances in the mining industry.
NMA also claims that 30 C.F.R. Section(s) 75.360(a)(1) is infirm because evidence in the record did not support a finding that safety considerations require conducting preshift examinations at eight hour intervals (rather than, say, nine or ten hour intervals). But NMA does not contest the agency's finding that the mining industry's use of overlapping shifts and other unconventional work schedules made it desirable to clarify when preshift examinations are required. What matters is whether the agency's choice of fixed eight hour intervals was a reasonable approach to the problem, not whether it was the only approach that would ensure miner safety. NMA has not shown that using fixed time intervals is unreasonable, or that eight hours is an unreasonable choice of interval.
NMA's procedural objection is that MSHA failed to comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. Section(s) 553, as 30 U.S.C. Section(s) 811(a) required it to do. NMA argues that the 1994 proposed rule, which followed the longstanding practice of requiring preshift examinations three hours before shifts begin, provided no notice that the agency would consider abandoning that approach in favor of preshift examinations at fixed intervals. Had it received proper notice, NMA says, it would have submitted comments to the agency showing that the new regulation, in conjunction with local law in some states, demands an excessive number of preshift examinations serving no safety purpose. It is conceivable that if the agency had received such comments, it would have adjusted the final rule to take into account overlapping state law requirements.
Agencies are not limited to adopting final rules identical to proposed rules. No further notice and comment is required if a regulation is a "logical outgrowth" of the proposed rule. See, e.g., Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994). Our cases offer no precise definition of what counts as a "logical outgrowth." We ask "whether 'the purposes of notice and comment have been adequately served.' " American Water Works Ass'n v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994) (quoting Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C. Cir. 1991)). Notice was inadequate when "the interested parties could not reasonably have 'anticipated the final rulemaking from the draft [rule].' " Id. at 1275 (quoting Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C. Cir. 1992)). "[W]e inquire whether the notice given affords 'exposure to diverse public comment,' 'fairness to affected parties,' and 'an opportunity to develop evidence in the record.' " Association of Am. Railroads v. Dep't of Transp., 38 F.3d 582, 589 (D.C. Cir. 1994) (quoting Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983)).
It is clear to us that 30 C.F.R. Section(s) 75.360(a)(1) is not a "logical outgrowth" of the 1994 proposed rule. The regulation that went into effect in 1992, like the prior regulation, treated the timing of preshift examinations in the same way as the statute. In the discussion accompanying the 1992 final rule, the agency explained how it expected mine operators using overlapping shifts to comply. See 57 Fed. Reg. 20,893. The 1994 proposed rule made no substantive changes regarding when preshift examinations should occur. See 59 Fed. Reg. 26,394-95. The discussion accompanying the proposed rule dealt with preshift examinations in some detail, but the agency did not mention any problems with the timing of the examinations, and it did not express any interest in changing that aspect ...