United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2010 Decided October 26, 2010
No. 09-1014
INTERNATIONAL UNION,
UNITED MINE WORKERS OF AMERICA,
PETITIONER
v.
MINE SAFETY AND HEALTH ADMINISTRATION, ET AL.,
RESPONDENTS
NATIONAL MINING ASSOCIATION,
INTERVENOR
On Petition for Review of a Final Rule
of the Federal Mine Safety & Health Administration
Arthur Traynor argued the cause for petitioner. With him
on the briefs were Grant Crandall and Judith Rivlin.
Edward Waldman, Attorney, U.S. Department of Labor,
argued the cause for respondents. With him on the brief was W.
Christian Schumann, Counsel.
Before: GINSBURG, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
2
ROGERS, Circuit Judge: Congress has addressed the
problems of miner safety on various occasions, the questions
here arising with respect to the Secretary of Labor’s response to
Congress’ focus on refuge alternatives for underground coal
mines. The International Union, United Mine Workers of
America (“UMWA”) petitions for review of the Refuge
Alternatives for Underground Coal Mines, 73 Fed. Reg. 80,656
(Dec. 31, 2008) (codified at 30 C.F.R. pts. 7, 75) (“Final Rule”).
The UMWA contends the provision on training violates
statutory standards and, like the refuge volume provision, is
arbitrary and capricious.
We grant the petition with respect to the training
requirement for miners and remand the Final Rule for the Mine
Safety and Health Administration (“MSHA”), acting on behalf
of the Secretary, to explain the basis for requiring “hands-on”
training only annually rather than quarterly. Although the
training provision is, as statutorily required, “consistent with”
the recommendations of the National Institute of Occupational
Safety and Health (“NIOSH”), these requirements are
nonetheless arbitrary and capricious because MSHA has not
explained the basis for them other than to state it relied upon its
“knowledge and expertise.” A conclusory statement is
inadequate when expert evidence in the rulemaking record
indicated why quarterly hands-on training was necessary and
MSHA itself had identified problems of skill degradation.
We deny the petition with respect to the provision on
minimum refuge volume per miner. The final rule was a logical
outgrowth of the proposed rule: MSHA gave interested parties
sufficient notice and opportunity for comment. The provision
also is neither arbitrary nor capricious.
3
I.
After several high-profile mine accidents involving multiple
fatalities, Congress enacted the Mine Improvement and New
Emergency Response Act of 2006, Pub. L. No. 109-236, 120
Stat. 493 (2006) (partially codified in scattered sections of 29
and 30 U.S.C.) (“MINER Act”), and instructed the Secretary to
consider expanded use of refuge alternatives in which trapped
miners can seek shelter. Section 6 created the Office of Mine
Safety and Health within NIOSH to enhance the development of
technology and to assist with research, through grants and
contractual arrangements with educational institutions and
qualifying private parties. 120 Stat. at 498-99 (codified at 29
U.S.C. § 671(h)). Section 13 designated NIOSH to provide for
the conduct of research, including field tests, and to report
within eighteen months to Congress and to the Secretaries of
Labor and Health and Human Services on research regarding
“the utility, practicality, survivability, and cost of various refuge
alternatives in an underground coal mine environment, including
commercially-available portable refuge chambers.” 120 Stat. at
504 (uncodified). The Secretary of Labor was to respond to
Congress on “the actions, if any, that [she] intends to take based
upon the [NIOSH] report, including proposing regulatory
changes, and the reasons for such actions.” Id. (emphasis
added).
In December 2007, Congress directed the Secretary to
“propose regulations . . . consistent with the recommendations
of the [NIOSH Report] . . . requiring rescue chambers, or
facilities that afford at least the same measure of protection” not
later than June 15, 2008, and to “finalize the regulations not later
than December 31, 2008.” Consolidated Appropriations Act,
2008, Pub. L. No. 110-161, § 112(b), 121 Stat. 1844, 2168
(2007) (“2008 Appropriations Act”) (emphasis added). On June
16, 2008, MSHA published a notice of proposed rulemaking
4
(“NPRM”), 73 Fed. Reg. 34,140, and, following the receipt of
comments, promulgated the Final Rule on December 31, 2008.
The UMWA petitions for review of the miner training and
refuge volume provisions in the Final Rule.
Training. The NIOSH Report to Congress made a series of
recommendations on training miners on the use of refuge
alternatives. See Office of Mine Safety & Health, NIOSH,
Research Report on Refuge Alternatives for Underground Coal
Mines at 15-16 (Dec. 2007) (“NIOSH Report”). It separately
addressed, in research, motor task training on the operation of a
refuge chamber, decision-making training on when to use a
refuge chamber, and expectations training to help miners attain
realistic expectations about what it would be like to spend four
days in a refuge chamber. See Issues Regarding Refuge
Chamber Training, NIOSH, Docket No. BKG-25 (“NIOSH
Research”). Most notably, the Report stated that “NIOSH
research indicates that motor task training, i.e., how to use
refuge alternatives, should be given quarterly, possibly in
conjunction with the mandatory mine evacuation training and
drills.” NIOSH Report at 15. The NIOSH Report also
recommended that decision-making training and expectations
training be given at the same time as the motor task training. Id.
The referenced research stated regarding motor task training
that, by contrast with the 18 sequential steps to activate and
maintain a refuge chamber, “NIOSH testing has shown that
without repeated hands-on practice, miners quickly forget how
to physically perform [even the 6] steps [to donning a self-
contained self-rescuer [“SCSR”]].” NIOSH Research at 1. One
experiment found that a year after miners had demonstrated
proficiency only 10% of those sampled remained proficient
without additional training. By contrast, 70% of miners who
completed hands-on training quarterly remained proficient. The
NIOSH Research concluded that “there is little or no reason to
believe the operation of a refuge chamber is in any way exempt
5
from the principles that have held true for literally hundreds of
motor tasks that have been studied since the turn of the 20th
century: people learn by doing, and tend to forget over time
unless they practice.” Id. Noting that “the optimum intervals
for retraining on a refuge chamber are not known,” NIOSH
researchers suggested that a “reasonable approach . . . would be
to integrate instruction on the refuge chamber into the
emergency mine evacuation training and drills that are mandated
to be held quarterly.” Id. at 2. NIOSH researchers also warned
with regard to motor task training that “[t]rainers ought not to
rely solely on verbal or printed instructions, videos, etc.” Id.
at 1.
MSHA proposed quarterly drills and annual training.
NPRM, 73 Fed. Reg. at 34,171; see id. at 34,156-57. The
proposed quarterly drills required locating refuge alternatives
and stored SCSRs, and “reviewing the checklist” and
manufacturer-provided information on constructing, activating,
and using refuge alternatives. Id. at 34,171. The annual training
included hands-on motor task training in donning SCSRs in a
real or simulated smoke-filled environment, and constructing
and activating a refuge chamber in a simulated emergency
situation; decision-making training “emphasiz[ing] that miners
first try to evacuate the mine and that refuge alternatives are a
haven of last resort when escape is impossible”; and
expectations training in exposing miners to the expected heat
and humidity conditions in a refuge chamber, an element
considered “essential to reduc[ing] the level of panic and anxiety
associated with the use of refuge alternatives.” Id. at 34,156-57.
In comments the UMWA objected that the proposed
training provision was inconsistent with the NIOSH Report,
noting that the proposed “expectations training” is to be
performed annually instead of quarterly and that there was no
requirement for hands-on training to be conducted with an actual
6
or model refuge chamber. The UMWA stated that “[t]o
adequately protect miners in the post-accident situation, the
training protocol must require hands-on training at least every
90 days.” UMWA Comments, Docket No. COMM-11, at 15
(Aug. 15, 2008). It noted MSHA’s reference in the preamble to
data from studies in 1990-93 in which researchers from the U.S.
Bureau of Mines, the University of Kentucky, and MSHA
measured skills degradation; for example, one study had found
proficiency dropped about 80% in follow-up evaluations
conducted about 90 days after training. Id. at 14 (quoting
NPRM, 73 Fed. Reg. at 34,156/2). Yet, the UMWA concluded,
in the proposed rule MSHA “does not appear to be taking that
approach.” Id. at 15.
NIOSH did not comment specifically on the proposed
training provision, observing only that the proposed rule is
consistent with NIOSH research findings presented to Congress
in 2007, “if appropriate training is provided.” NIOSH
Comments, Docket No. COMM-20, at 2 (Aug. 18, 2008).
The Final Rule did not differ substantively from the
proposal on training for miners. See 30 C.F.R. §§ 75.1504(b)
(“Quarterly instructions review”) & (c) (“Annual expectations
training”), 73 Fed. Reg. at 80,698.
Refuge Volume. The NIOSH Report recommended
providing at least 15 square feet of unrestricted floor space and
at least 85 cubic feet of unrestricted volume per miner in the
refuge alternatives to enable miners to perform basic functions.
See NIOSH Report at 7. However, the Report advised that
“[t]he values listed . . . should not be considered as absolute, but
rather as reasonable starting points for specifications.” Id. at 5.
Beyond noting that “it may be impractical to implement viable
refuge alternatives in the few mines that operate in very low
coal, e.g. less than 36 inches,” id. at 4, the NIOSH Report did
7
not include specific recommendations on how to tailor volume
in these low-height mines.
MSHA proposed that a refuge chamber provide 60 cubic
feet per miner, including 15 square feet of floor space. See
NPRM, 73 Fed. Reg. at 34,146. It also noted the problem of
low-height mines, explaining that “[f]or mines with lower
heights, the 60 cubic feet of space may need to be attained by
increasing the length or floor area.” Id. The NPRM noted the
NIOSH recommendation of 85/15. MSHA generally “solicit[ed]
comments on these minimum space and volume requirements,”
instructing that “[c]omments should be specific, including
alternatives, rationale, safety benefits to miners, technological
and economic feasibility, and supporting data.” Id. MSHA also
specifically “solicit[ed] comment on these proposed values for
floor space and volume, particularly in low mining heights,” id.
at 34,157, with the same instructions about comments.
The UMWA commented that 60 cubic feet was inadequate,
explaining that it was “always the intent [of Congress] to provide
not only the necessary protections for miners to sustain life while
they are inside a chamber/shelter, but to also allow miners to be
comfortable while awaiting rescue.” UMWA Comments at 9.
Such adequate volume was important, the UMWA emphasized,
to protect miners’ mental stability while trapped for up to 96
hours; it pointed to testimony at congressional hearings
recounting experiences of trapped miners and how they survived
physically and mentally in confined quarters while awaiting
rescue. The UMWA also noted that the reduced space would
subject miners to greater risk of CO2 exposure and/or excessive
heat within the chamber. In UMWA’s view, the nearly 30%
reduction from the NIOSH recommendation was without
justification and “does not make sense.” Id. at 10. In “urg[ing]
MSHA to adopt the 85 cubic foot recommendation of NIOSH to
8
all refuges,” id., UMWA stated that it would support using more
than one chamber to accommodate the space needed.
NIOSH, in turn, explained in comments on the proposed rule
that it had based its overall volume recommendation on
“published research conducted under the old civil defense
program,” pertaining to nuclear fallout shelters for families to be
used for two weeks or more, and acknowledged that those
findings are “difficult to apply . . . directly to mining
applications.” NIOSH Comments at 2. In the absence of new
information from other research studies, NIOSH stated it
supported MSHA’s proposal of 60 cubic feet.
The Final Rule adopted the proposed 60 cubic feet per miner
for refuge chambers and also included a sliding scale based on
the height of each mine allowing as little as 30 cubic feet for
refuge chambers in mines with heights ranging from 36 inches
or less to 54 inches. 30 C.F.R. §§ 7.505(a)(1), 75.1506(b)(1); 73
Fed. Reg. at 80,695, 80,698.
II.
The court reviews an agency’s interpretation of a statute that
Congress has assigned the agency to implement under the
familiar two-step analysis of Chevron, U.S.A., Inc. v. NRDC, 467
U.S. 837, 842-44 (1984). In step one, the court examines the
statute de novo, and “if the intent of Congress is clear,” then the
court’s task is at an end. Id. at 842-43. If, however, the statute
is ambiguous, then in step two the court must defer to the
agency’s interpretation unless it is “manifestly contrary to the
statute.” Id. at 844. Even where an agency’s “construction
satisfies Chevron, [the court] still must ensure that [the agency’s]
action is not otherwise arbitrary and capricious.” Nat’l Ass’n of
Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir.
2007); see 5 U.S.C. § 706. The agency must have provided a
9
“rational connection between the facts found and the choice
made” and its explanation must not “run[] counter to the
evidence before the agency, or [be] so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation and
quotation marks omitted).
A.
The UMWA contends that the training provision fails to
adhere to the statutory standards in Section 13 of the MINER Act
and the 2008 Appropriations Act that, respectively, training be
“based upon” and “consistent with” the NIOSH Report’s
recommendations with regard to the content and frequency of
training. These challenges fail.
The plain text of Section 13 of the MINER Act does not
require the Secretary to promulgate regulations “based upon” the
NIOSH Report to Congress. It provides only that “the Secretary
of Labor shall provide a response to [certain congressional
committees] containing a description of the actions, if any, that
the Secretary intends to take based upon the [NIOSH] report,
including proposing regulatory changes, and the reasons for such
actions.” 120 Stat. at 504 (emphasis added). The UMWA’s
reliance on Section 13’s purpose, structure, and legislative
history is unavailing. It suggests that Section 13 could only have
meaning if it required MSHA to take action because MSHA
already had discretionary authority to set safety standards
generally and to promulgate regulations for emergency shelters
within certain parameters under the Federal Coal Mine Health
and Safety Act of 1969, as amended by the Federal Mine Safety
and Health Act of 1977 (“Mine Acts”), see 30 U.S.C. §§ 811,
875, 957. But Section 13 still has meaning in providing MSHA
with a new reference point - the NIOSH Report - to help shape
such regulations if MSHA decided they were necessary. The
10
UMWA further suggests that Section 13 must be viewed
consistently with the general safety purposes of the Mine Acts,
see, e.g., United Mine Workers Ass’n v. MSHA, 823 F.2d 608,
617 (D.C. Cir. 1987), and the emphasis of the MINER Act on the
“key role of the [NIOSH] in advancing such technological
development,” 152 Cong. Rec. S4619 (2006) (statement of Sen.
Enzi); see S. Rep. No. 109-365, at 9-10 (2006). But neither of
these background principles supports the proposition that
Congress intended MSHA to adhere to the NIOSH Report as the
only way to promote safety. Contrary to the UMWA’s
suggestion, MSHA’s statement in the preamble that the Final
Rule implemented the MINER Act simply referred to provisions
to improve miner safety, namely, requiring operators to include
refuge alternatives in the emergency response plan under Section
2 of the MINER Act, 30 U.S.C. § 876.
By contrast, the plain text of the 2008 Appropriations Act
required the Secretary to promulgate regulations “consistent
with” the NIOSH Report.1 Relying on Nat’l Ass’n of
Broadcasters v. FCC, 569 F.3d 416, 421 (D.C. Cir. 2009),
MSHA interprets Section 112(b) to mean that the “consistent
with” clause applies only to MSHA’s proposed rules but not to
1
Section 112(b) of the 2008 Appropriations Act provides:
Not later than June 15, 2008, the Secretary of Labor shall
propose regulations pursuant to section 315 of the Federal
Coal Mine Health and Safety Act of 1969, consistent with the
recommendations of the National Institute for Occupational
Safety and Health pursuant to section 13 of the MINER Act
(Public Law 109-236), requiring rescue chambers, or facilities
that afford at least the same measure of protection, in
underground coal mines. The Secretary shall finalize the
regulations not later than December 31, 2008.
121 Stat. at 2168 (emphasis added).
11
its final rules, because Congress only included the “consistent
with” language in the sentence dealing with proposed rules.
However, in National Association the court held only that an
“omission is intentional where Congress has referred to
something in one subsection but not in another”; it said nothing
about a requirement stated in a single subsection. The final
sentence in Section 112(b) hints of no exception to the
“consistent with” requirement in the first sentence. Reading this
subsection not to apply to the Final Rule is contrary to the text
and structure of the subsection, which encompasses the entire
rulemaking process.
However, the court has considered terms like “based upon”
and “consistent with” to be ambiguous, prompting analysis under
Chevron Step Two, 467 U.S. at 843. As the court explained in
Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1270 (D.C.
Cir. 2004) (citing Natural Res. Def. Council, Inc. v. Daley, 209
F.3d 747, 754 (D.C. Cir. 2000)), the phrase “consistent with”
“requires not ‘exact correspondence . . . but only congruity or
compatibility.’” Id. (quoting Envtl. Def. Fund, Inc. v. EPA, 82
F.3d 451, 457 (D.C. Cir. 1996)) (ellipsis in original). In Nuclear
Energy, the Energy Policy Act required the agency to issue
standards “based upon and consistent with the findings and
recommendations of the National Academy of Sciences
[“NAS”].” Id. at 1269. The court held the regulations were not
“consistent with” the NAS’s findings because the agency had
“rejected NAS’s findings, and then went on to promulgate a
dramatically different standard, one that [NAS] had expressly
rejected.” Id. at 1270. The court concluded that the agency’s
action “so completely diverges from any realistic meaning of the
[statute] that it cannot survive scrutiny under Chevron Step
Two.” Id. (alteration in original). On the other hand, in Envtl.
Def. Fund, the court concluded the agency’s incorporation of
minor deviations from the statutory standard was reasonable.
The rule approved of plans that deviated from the statutory
12
implementation schedules in view of problems identified by the
applicant that caused the delays. The agency had explained this
modification was a “practical necessity to accommodate
uncontrollable delays.” Envtl. Def. Fund, 82 F.3d at 457
(quoting 58 Fed. Reg. at 62,197) (quotation marks omitted). So
too in Sierra Club v. EPA, 356 F.3d 296, 304-06 (D.C. Cir.
2004), the court concluded that the agency’s determination of
ozone air quality attainment was “based on” a photochemical
grid model, as required by the statute. The court rejected the
suggestion that “based on” means “the sole basis for,” id. at 306,
but stated that the phrase would not permit a determination that
“wholly abandoned the results of a model,” id. The court
concluded the statute was satisfied because the model was the
primary basis and starting point for the attainment
demonstration. The states in the Washington, D.C. metropolitan
area initially failed to demonstrate ozone air quality attainment
under the model, but the agency permissibly “adjusted the
model’s extrapolations in light of [its] concerns about the
model’s reliability and uncertainty” and determined attainment
was successfully demonstrated. Id. at 305. Under this precedent,
then, MSHA could permissibly adopt changes to the NIOSH
recommendations in response to issues raised by commentators
or the agency itself, but it could not adopt a provision that is
contrary to the NIOSH Report.
The UMWA maintains that MSHA “abandoned” the NIOSH
Report “recommendation of quarterly training consisting of both
hands-on motor skills component and expectations training.”
Pet’r Br. 27. With the exception of quarterly task training in the
non-emergency task of proper transportation of the refuge
alternatives and components, 30 C.F.R. § 75.1504(b)(9), the
UMWA considers the much more limited quarterly training in
the Final Rule to “amount[] to nothing more than a paper review
of procedures that operators could meet by handing miners a
13
stack of documents. See 30 C.F.R. 75.1504(b)(6) and (8).” Pet’r
Br. 27.
The training provision in the Final Rule, 30 C.F.R.
§ 75.1504, does not abandon training requirements even though
it does not provide for quarterly hands-on training; such training
is required annually. MSHA’s suggestion that the Final Rule
could ignore NIOSH’s recommendations on training because
“Congress’ mandate to NIOSH did not extend to training” is not
well taken. Resp’t Br. 18. In laying out guidelines for training,
NIOSH acted within its statutory mandate under Section 13(a) of
the MINER Act to conduct research on the “utility, practicality,
survivability, and cost” of alternative refuge chambers, 120 Stat.
at 504. NIOSH could reasonably determine that this purpose
included research on training, which it “assessed to be critical to
the successful use of refuge alternatives,” NIOSH Report at 4.
More persuasively MSHA maintains that the Final Rule did
not abandon or supplant the NIOSH training recommendation
but accepted it with modification. It views the requirement for
annual hands-on training, 30 C.F.R. § 75.1504(c)2, as “consistent
2
Subsection 75.1504(c), “Annual expectations training,” provides:
Over the course of each year, each miner shall participate in
expectations training that includes the following:
(1) Donning and transferring SCSRs in smoke,
simulated smoke, or an equivalent environment.
(2) Breathing through a realistic SCSR training unit
that provides the sensation of SCSR airflow
resistance and heat.
(3) Deployment and use of refuge alternatives similar
to those in use at the mine, including –
(i) Deployment and operation of component
systems;
(ii) Instruction on when to use refuge
14
with” the NIOSH Report because it “diverged from the
recommendation only with regard to the frequency of the
training.” Resp’t Br. 19. MSHA notes that the NIOSH Report
recommended motor task, decision-making skills, and
expectations training be required and be given quarterly.
However, in comments NIOSH stated that “[t]he proposed rule
is consistent with the NIOSH findings as presented in its research
report to Congress . . . if appropriate training is provided.”
NIOSH Comments at 2. Unlike its comments on refuge volume
provision, NIOSH made no specific comment on the differences
between its recommendation and the training provision. MSHA
suggests it thus “is fair to conclude” that NIOSH would have
commented on any differences it perceived to be significant.
Resp’t Br. 20.
In the Final Rule MSHA did not exclude hands-on training
among the requirements but determined annual training sufficed.
Such a modification comes within our precedent interpreting the
“consistent with” mandate. It is true that the NIOSH Report
stated its “research indicated motor-task training, i.e., how to use
refuge alternatives, should be given quarterly,” NIOSH Report
at 15, but it did not foreclose the possibility of requiring annual
training. See id.; Nuclear Energy Inst., 373 F.3d at 1270. And
while 30 C.F.R. § 75.1504(c) does not expressly reference the
expectations training as described in the NIOSH Research, the
preamble to the Final Rule explains that the training provision
offers a comprehensive approach for mine evacuation training
and drills that includes deploying and using a refuge chamber
alternatives during a mine emergency,
emphasizing that it is the last resort when
escape is impossible.
(4) A miner shall participate in expectations training
within one quarter of being employed at the mine.
30 C.F.R. § 75.1504(c); 73 Red. Reg. at 80,698.
15
under simulated emergency conditions, albeit not for four days,
see 73 Fed. Reg. at 80,680.
The training provision is nonetheless arbitrary and
capricious because, as the UMWA contends, it defies the expert
record evidence and is unexplained. MSHA has not explained
the basis for rejecting quarterly hands-on motor skills, decision-
making, and expectations training, other than to state it relied
upon its “knowledge and expertise,” id. at 80,681. It does not
identify what this knowledge and expertise is, nor point to a
study or comparison of non-hands-on training. Its conclusory
statement is unsupported by the rulemaking record. The NIOSH
Report and Research emphasized the importance of quarterly
hands-on training, referencing, for example, a NIOSH study that
found that after 90 days miners’ ability to accomplish a six-step
process for donning SCSRs had severely deteriorated, a problem
that would be more severe in the case of the eighteen-step
process needed for operation of refuge alternatives, see NIOSH
Research at 1. NIOSH warned that “[t]rainers ought not to rely
solely on verbal or printed instructions, videos, etc.” Id. In the
Final Rule MSHA did not permit trainers to rely “solely” on such
materials, but while acknowledging “problems related to skill
degradation in emergency evacuations of mines,” 73 Fed. Reg.
at 80,680, it offered no analysis for its conclusion that such
problems were adequately addressed with annual hands-on motor
task training. Similarly, MSHA provides no explanation for
concluding the needs for decision-making and expectations
training as described in the NIOSH Research are otherwise met
by annual training.
MSHA points to no comments advocating against the
quarterly hands-on standard. The preamble to the Final Rule
noted only that while some commentators opposed training or
wanted to limit the type of training, “some expressed concern
that all aspects of deploying and maintaining a refuge alternative
16
be covered during hands-on training and that this hands-on
training should occur every 90 days,” id. MSHA did not resolve
these commentators’ objections but, in the next sentence of the
preamble simply repeated its view, based on its knowledge and
experience, that “expectations training” would be helpful.
MSHA’s failure to address these comments, or at best its attempt
to address them in a conclusory manner, is fatal to its defense of
the training provision. See AT&T Wireless Servs., Inc. v. FCC,
270 F.3d 959, 968 (D.C. Cir. 2001). Nat’l Mining Ass’n v.
MSHA, 116 F.3d 520 (D.C. Cir. 1997), on which MSHA relies
for the proposition that a rule may be supported solely by the
agency’s expertise, does not absolve MSHA from providing a
reasoned explanation for its decision only to require annual
hands-on training. In that case the Secretary provided a
“reasoned explanation” by explaining what the “[a]gency
experience” was and how it informed the determination. Id. at
546-47. The Final Rule does neither. And while at oral
argument counsel for MSHA attempted to rectify this deficiency
by explaining MSHA’s determination, when Congress has
delegated “a determination of policy or judgment . . . [to] the
agency alone,” SEC v. Chenery Corp., 318 U.S. 80, 88 (1943),
“the courts may not accept appellate counsel’s post hoc
rationalizations for agency action,” State Farm, 463 U.S. at 50.
Removing from the preamble the expert evidence clarifying the
type of training required, while retaining the conclusion that
frequent and effective training is necessary, does not absolve
MSHA from the obligation to explain its reasoning for rejecting
such evidence. “Conclusory explanations for matters involving
a central factual dispute where there is considerable evidence in
conflict do not suffice to meet the deferential standards of our
review.” AT&T Wireless Servs., 270 F.3d at 968.
Accordingly, we remand but do not vacate the Final Rule for
MSHA to provide an explanation of the training provision, see
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d
17
146, 150 (D.C. Cir. 1993), or, absent record evidence to support
MSHA’s conclusion, to reopen the record, and afford interested
parties an opportunity to comment, see Am. Radio Relay League,
Inc. v. FCC, 524 F.3d 227, 242 (D.C. Cir. 2008).
B.
The UMWA challenges the refuge volume requirement as
arbitrary and capricious on several grounds.3 It contends the
requirement is not a logical outgrowth of the proposed rule,
specifically maintaining that it was not afforded an opportunity
to submit comments regarding the mental well-being of miners
in “coffin-sized spaces,” or about “larger persons,” i.e., “a mildly
obese miner,” or the ability to perform basic survival tasks.
A final rule is a logical outgrowth of the proposed rule “only
if interested parties should not have anticipated that the change
was possible, and thus reasonably should have filed their
comments on the subject during the notice-and-comment
period.” Int’l Union, United Mine Workers of Am. v. MSHA, 407
F.3d 1250, 1259 (D.C. Cir. 2005) (internal quotations omitted).
However, “a final rule will be deemed to be the logical
outgrowth of a proposed rule if a new round of notice and
comment would not provide commentators with their first
occasion to offer new and different criticisms which the agency
might find convincing.” Fertilizer Inst. v. EPA, 935 F.2d 1303,
1311 (D.C. Cir. 1991) (citation and internal quotation marks
omitted). Notice of the agency’s intention is crucial to “ensure
that agency regulations are tested via exposure to diverse public
comment, . . . to ensure fairness to affected parties, and . . . to
give affected parties an opportunity to develop evidence in the
3
Acknowledging in its reply brief that NIOSH’s volume
recommendation was qualified, the UMWA concedes that its statutory
objections based on Section 13 of the MINER Act and the 2008
Appropriations Act are no longer viable.
18
record to support their objections to the rule and thereby enhance
the quality of judicial review.” Int’l Union, 407 F.3d at 1259.
Thus, in Int’l Union, 407 F.3d at 1259, the court held that a
proposed rule providing for a minimum air velocity did not put
parties on notice that the maximum air velocity might be
regulated. In Shell Oil Co. v. EPA, 950 F.2d 741, 751-52 (D.C.
Cir. 1991), the court held that there was no logical outgrowth
where there was “a marked shift in emphasis between the
proposed regulations and the final rules” because the listing of
hazardous waste went from a “largely supplementary function”
to having a “heavy emphasis” in the regulatory scheme. By
contrast, in Nat’l Mining Ass’n v. MSHA, 512 F.3d 696, 699
(D.C. Cir. 2008), where the proposed rule requiring that “rescue
devices be provided for each miner in both the primary and the
alternative escapeways” left open the questions of where the
devices would be stored, how they would be available to miners,
and whether one common cache of devices would be sufficient
where escapeways were proximate, the court held that the rule
providing for a hardened room cache between the escapeways
was a “logical outgrowth” of the proposal.
The proposed rule identified the potential problem with
attaining 60 cubic feet of space per miner, explaining that “for
mines with lower heights, the 60 cubic feet of space may need to
be attained by increasing the length or floor area,” 73 Fed. Reg.
at 34,146. The Final Rule dealt with the problem by reducing the
volume to as little as 30 cubic feet per miner where mine heights
are 36 inches or less, 30 C.F.R. § 75.1506(b)(1). The UMWA
contends that the proposed rule contained “[t]he explicit
assurance . . . that any problem presented by lower mine heights
would be addressed by increasing the length or floor area of the
refuge chamber . . . not . . . through further reduction in the
volume requirement.” Pet’r Br. 34. However, this overlooks
MSHA’s statement that “achieving the volume per mine in
19
refuge alternatives for low coal mines could be problematic,” 73
Fed. Reg. at 34,157, and its specific call for comments on the
proposed floor space and volume requirements in low mining
heights, see id. MSHA was free to adopt a different solution in
the Final Rule, as long as it gave interested parties fair notice and
an opportunity to respond. See Crawford v. FCC, 417 F.3d
1289, 1295 (D.C. Cir. 2005).
The UMWA “does not suggest that it lacked adequate notice
that the Secretary in her [Final] Rule may have further reduced
the proposed rule’s 60 cubic feet volume requirement,” but rather
emphasizes that MSHA’s reduction of ceiling heights in low
mining areas without increasing the floor space presents a logical
outgrowth problem. Reply Br. 30. The UMWA views the
change as of the more extreme kind in Int’l Union, 407 F.3d at
1259, maintaining that MSHA, in “slash[ing] in half” the volume
requirement, Reply Br. 30, flipped the potential solution entirely.
But the court has held “a final rule represents a logical outgrowth
where the NPRM expressly asked for comments on a particular
issue or otherwise made clear that the agency was contemplating
a particular change.” CSX Transp., Inc. v. STB, 584 F.3d 1076,
1081 (D.C. Cir. 2009); see also City of Portland, Or. v. EPA, 507
F.3d 706, 715 (D.C. Cir. 2007). In some instances, the agency
had included specific questions in the NPRM; in City of
Portland, 507 F.3d at 715, the court concluded it was foreseeable
the final rule might require covering open reservoirs or treating
them for Cryptosporidium because the proposed rule asked the
commentators to address questions about the feasibility of
treating uncovered reservoirs rather than covering them and
whether there was an increased risk of Cryptosporidium in open
reservoirs. Here MSHA’s proposed rule identified the problem
of low height mines and specifically solicited detailed comments
on it.
20
The UMWA also fails to show that it was prejudiced. See
5 U.S.C. § 706; Owner-Operator Indep. Drivers Ass’n, Inc. v.
Fed. Motor Carrier Safety Admin., 494 F.3d 188, 202 (D.C. Cir.
2007). In commenting on the proposed rule, the UMWA
explicitly or implicitly conveyed its views in opposition to the
proposed reduction in refuge volume. It stated, in opposing the
reduction from 85 to 60 cubic feet, that 85 cubic feet should be
the minimum for “all refuges.” UMWA Comments at 10, 25.
Additionally, it addressed the miners’ mental well-being and the
size of miners, urging MSHA to require refuges large enough to
“provide comfort” for all miners, regardless of circumstances.
Its position was that “miners at low coal mines deserve the same
protections as those working in high seams.” Id. at 13. It also
cited the risks of elevated CO2 exposure and increased
temperatures. Id. at 10. On appeal UMWA points to no new
evidence that it would have submitted in comments. See
Fertilizer Inst., 935 F.2d at 1311; see also Owner-Operator
Indep. Drivers, 494 F.3d at 202. The UMWA states only that it
would have argued that the space was so small that it would be
infeasible for miners to perform basic life functions in such a
small space; that the openings might have been too small for
larger miners to gain entry; and that the rule could have provided
for more refuge alternatives to address fears that overlarge
refuges would be unwieldy, instead of reducing the volume per
miner. These arguments were encompassed in its comments on
miner comfort and well-being.
Neither can the UMWA show that the refuge volume
provision is arbitrary and capricious. It contends MSHA failed
adequately to explain any connection between its findings of
fact with regard to chamber volume and the choice it made of 60
cubic feet instead of the 85 cubic feet recommended in the
NIOSH Report. It also contends MSHA failed adequately to
explain its further reduction based on mine height in view of its
suggestion in the NPRM that for mines with lower heights, the
21
60 cubic feet of space may need to be attained by increasing the
length or floor area, see 73 Fed. Reg. at 34,146. It urges that the
result is “so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” State
Farm, 463 U.S. at 43. It notes that the preamble to the Final
Rule states that “[a]dequate space is needed to accommodate
larger than average persons” and sufficient space is needed to
“conduct necessary activities.” 73 Fed. Reg. at 80,665.
MSHA responds persuasively that the Secretary adopted the
volume range as a “policy determination,” Resp’t Br. 29, to
“accommodate commenters’ concerns regarding the ability to
maneuver, deploy, or use larger units in mines with low seam
heights,” 73 Fed. Reg. at 80,665. The preamble to the Final Rule
references comments (such as the UMWA’s) urging adoption of
85 cubic feet, the NIOSH comment supporting the 60 cubic feet
in the proposed rule, and comments stating that the proposed
space and volume requirements were excessive in an emergency
because persons could survive with less space; that larger refuge
alternatives were difficult to transport or may not be feasible in
all seam heights; that floor space per person is the critical
measurement, not volume; and that less space was needed
because the number of persons to be accommodated would be
less than half due to overlapping crews. See id.
The UMWA, suggesting that MSHA’s problems with low
seam “heights” could refer more directly to the problem of
moving taller chambers in low-ceilings, is incorrect in stating
that the rulemaking record is devoid of comments indicating that
refuge alternatives with wider floor areas would be difficult to
maneuver in low-seam mines. MSHA’s supplemental filing of
the rulemaking record at the court’s request includes comments
presented, for example, by Jack Kennedy Metal Products and
Buildings, Inc., that a unit with a height of 5.5 feet and width of
8 feet would require a length of 27 feet which “cannot be easily
22
towed around a corner with typical mine equipment” and that
such regulations would result in “the chambers that offer the best
protection, that is, hard chambers, . . . be[ing] eliminated.”4
Similarly, the Superintendent of Dana Mining Company LLC’s
Prime No. 1 Mine located in West Virginia commented that
“[f]or mines with approximately 40 inches or less of height, it
will become impossible to install a twenty (20) person rigid
shelter to meet the square footage requirement of the proposed
law and be able to advance the unit as the section advances,
much less get it installed initially”.5 Other comments suggested,
moreover, that the reduced volume would be sufficient for the
miners to perform necessary functions for at least 96 hours,
citing United States military requirements and mine requirements
elsewhere; that 15 cubic feet was consistent with international
standards; and that a literature review supported a 30 cubic foot
standard.6 See 73 Fed. Reg. at 80,665. Absent comments
4
Comments of Bill Kennedy, President, CEO, Jack Kennedy Metal
Products and Buildings, Inc., Docket No. COMM-1, at 5 (July 17,
2008) (“Bill Kennedy Comments”).
5
Comments of Steve Polce, Superintendent, Dana Mining Company
LLC, Docket No. COMM-13, at 2 (Aug. 15, 2008).
6
See Bill Kennedy Comments at 5 (noting reduced volume is “in line
with international standards”); Comments of Randall Harris,
Engineering Advisor, West Virginia Office of Miners Health, Safety
and Training, Docket No. COMM-4, at 35-37, 69-71 (Aug. 1, 2008)
(citing U.S. Department of Defense Human Engineering Manual and
an example of mine shelters for proposition that smaller volumes are
sufficient); Comments of Ralph Sanich, Manager, Health and Safety,
Interwest Mining Company, Docket No. COMM-8, at 4 (Aug. 13,
2008) (providing requirements from a regulation adopting another
country’s standard and relying on a report by Dr. Joel Haight, a
specialist in human factors engineering, which found 30 cubic feet to
be sufficient); Comments of Tony Bumbico, Vice President of Safety,
Arch Coal, Inc., Docket No. COMM-12, at 5 (Aug. 15, 2008) (citing,
23
beyond the UMWA’s about a further reduction in volume or the
alternative of having more smaller refuge alternatives, MSHA
made a rational choice based on the record to reduce the volume
requirement in these low-height mines.
Accordingly, we grant the petition in part and we deny the
petition in part.
for example, the U.S. Navy program on disabled submarines and
survival considerations); Comments of Bruce Watzman, National
Mining Association, Docket No. COMM-17, at 5 (Aug. 18, 2008)
(appending report by Dr. Joel Haight); Comments of John M. Gallick,
Vice President Safety and Health, Foundation Coal Corporation,
Docket No. COMM-21, at 2 (Aug. 18, 2008) (citing another country’s
standard of 6.4 square feet of floor space with no volume
requirement); Comments of Chris Hamilton, West Virginia Coal
Association, Docket No. COMM-33, at 7-8 (discussing sufficiency
another country’s lower volume standard).