Before ROBB, WALD and GINSBURG, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
AMERICAN MINING CONGRESS, INTERVENOR 1981.CDC.86
Petition for Review of an Order of the Mine Safety and Health administration.
In November 1978, the Mine Safety and Health Administration of the Department of Labor issued final regulations requiring coal operators to equip all underground miners with self-contained self-rescuers (SCSRs) that will provide oxygen in the event of a mine explosion or fire. *fn1 The regulations gave coal operators two years, until December 21, 1980, to order and supply the devices. Today we do not review either the propriety of the 1978 regulations or the wisdom of the initial phase-in period. *fn2 Instead we judge a more narrow question: whether on December 5, 1980, the Secretary of Labor acted reasonably when he deferred implementation of the regulations until June 21, 1981, and whether he had good cause to take that action without providing prior notice or an opportunity to comment. *fn3 While we find the notice-and-comment question very close, we conclude that, in the special circumstances presented, the Secretary had good cause to dispense with usual rulemaking procedures and that his action was otherwise reasonable. I. BACKGROUND
Each year, underground fires and explosions claim the lives of some coal miners. *fn4 Miners who are not killed by the initial explosion or spreading flames may die from inhalation of noxious gases or simple lack of oxygen. In 1969 the National Academy of Engineering concluded that asphyxiation from smoke, carbon monoxide, or carbon dioxide caused twenty-two percent of the 566 mine deaths that occurred between 1950 and 1969. *fn5 Responding to this type of information Congress in 1969 required coal mine operators to give all underground miners self-rescue devices that would protect them from poisonous gases for at least one hour. *fn6 Regulations promulgated shortly thereafter directed mine operators to supply filter-type self-rescuers to all underground miners. *fn7
Filter-type self-rescuers, however, are inadequate to the life-saving task for several reasons. They protect miners only against carbon monoxide, not against smoke, carbon dioxide, or other toxic gases. Even protection from carbon monoxide ceases if carbon monoxide levels exceed one percent of the atmosphere. At higher concentrations of carbon monoxide, the filter-type self-rescuer produces air that is too hot to inhale. *fn8 Miners react by spitting out the filter-type device and thereupon die from carbon monoxide poisoning. In addition to these problems, filter-type self-rescuers do not supply an independent source of oxygen. Therefore, even if the devices successfully protect miners from carbon monoxide, a low oxygen level may cause miners to lose consciousness and eventually perish in the contaminated mine atmosphere. *fn9
Aware of the filter-type device's limitations, the Bureau of Mines began an extensive testing program to identify a better self-rescuer. In 1977 these efforts culminated in proposed regulations requiring coal operators to equip underground miners with SCSRs rather than filter-type self-rescuers. *fn10 SCSRs contain an independent oxygen supply that lasts for an hour or more. Thus, they protect miners from all poisonous gases and give miners sufficient oxygen to attempt escape from a mine struck by a disaster. While SCSRs are much more effective than filter-type self-rescuers, the proposed rules did not contemplate an immediate switch from one device to the other. Instead, the proposed rules indicated that coal operators would have two years from the date of any final regulations to equip their miners with SCSRs. *fn11
On November 21, 1978, the Department of Labor issued final regulations requiring the use of SCSRs in coal mines. As promised in the 1977 proposed rules, coal operators were given two years, until December 21, 1980, to select, order, and supply SCSRs. 1978 Regulations, supra note 1, at 54246. During this phase-in period, MSHA pledged to field test the SCSRs. Id. at 54244. While MSHA was confident that SCSRs were "reliable and safe to use and store in underground mines," id. at 54243, the agency wanted to conduct field testing to determine how the use of SCSRs would "affect miners" in actual mining situations. Id. at 54244.
After promulgation of the final rules, MSHA promptly developed a program for field testing SCSRs. On February 28, 1979, Joseph O. Cook, MSHA Administrator for Coal Mine Safety and Health, sent Robert B. Lagather, Assistant Secretary of Labor for Mine Safety and Health, an action plan for evaluating SCSRs. The plan envisioned completion of testing well before the December 1980 deadline for implementing the regulations. *fn12
Two circumstances, however, delayed the field testing program. First, the National Institute for Occupational Safety and Health , which had to approve SCSR models before they could be used in the tests, did not approve production model SCSRs until the summer of 1980. *fn13 Second, the Joint Industry Health and Safety Committee, representing both a major coal operators' association and the United Mine Workers of America , would not recommend that their members participate in field testing until MSHA answered safety concerns about SCSRs that had surfaced early in 1980. *fn14 The Bituminous Coal Operators' Association , the major industry association represented on the Joint Committee, did not finally approve field testing in its mines until November 19, 1980. *fn15
MSHA worked diligently to overcome these roadblocks. When NIOSH approval for production model SCSRs was not forthcoming, the agency used hand-manufactured models that had been approved in 1979 for a first round of field tests. *fn16 To calm lingering fears about the safety of SCSRs, MSHA asked the Bureau of Mines to conduct an extensive study of the devices. This study was completed during the summer of 1980 and presented to the Joint Industry Health and Safety Committee the following fall. *fn17 And when BCOA continued to withhold approval for field ...