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04/16/81 Council of the Southern v. Raymond J. Donovan


April 16, 1981




Before ROBB, WALD and GINSBURG, Circuit Judges.



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 testing throughout the fall of 1980, MSHA initiated tests in mines owned by members of the National Independent Coal Operators Association . *fn18

Despite delays in the field testing program, MSHA appeared determined throughout the fall of 1980 to complete field testing by December and implement the regulations on schedule. *fn19 On November 5, 1980, Assistant Secretary Lagather wrote to the Joint Industry Committee, noting that the Committee had already received the Bureau of Mines study, and expressed his confidence that field tests could "be started at ... affiliated mines (of Committee members) in the very near future." *fn20 On November 12, 1980, Robert G. Peluso, MSHA Chief of Special Projects, wrote to representatives of the two manufacturers that had received approval for their SCSRs and asked how many SCSRs they would have on hand by December 21, how many devices they could manufacture during each month after that date, and how they planned to transport finished SCSRs to customers. *fn21 Finally, on November 28, 1980, Assistant Secretary Lagather reported to BCOA that seven mines had been selected for field testing, that testing would begin December 5, 1980, and that testing at three mines would be completed by December 15. While testing at the other four mines would not be completed until January of 1981, Lagather hoped that information from the first three tests would "provide some guidance in implementating the regulations." *fn22

Although Lagather's November 28 letter implied that he planned to implement the regulations on schedule, MSHA announced a different position shortly thereafter. On December 5, 1980, MSHA published the order that gave rise to this petition for review. *fn23 In a few brief paragraphs, MSHA stated that since it had not completed field testing SCSRs, and since only a small number of the devices were available, *fn24 it had decided to defer implementation of the regulations until June 21, 1981. This order was preceded by neither notice nor a comment period; MSHA declared that "(i)n view of the imminence of the deadline and the circumstances stated above" it was "impracticable and contrary to the public interest to provide advance notice and opportunity for public comment on this amendment." December 5 Order, supra note 3, at 80502.

The Council of the Southern Mountains , a representative of miners in Martin County, Kentucky, together with District 12 of UMWA and the Coal Employment Project, petitioned this court for review of the December 5 order. We permitted the American Mining Congress , an industry association, to intervene. Because the order deferring implementation of the regulations is now in effect, *fn25 we have treated this case on an expedited basis. We turn now to the two issues that CSM most urgently presses on appeal. *fn26 II. NOTICE AND COMMENT

Petitioners' most substantial claim is that the Secretary improperly issued the December 5 order without prior notice or an opportunity to comment. The Administrative Procedure Act requires agencies to give "general notice of proposed rule making" and to provide "interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation." 5 U.S.C. § 553(b), (c) (1976). *fn27 This notice-and-comment requirement permits interested parties to criticize projected agency action before that action is embedded in a final rule and allows the agency to benefit from the parties' suggestions. See National Tour Brokers Association v. United States, 192 U.S. App. D.C. 287, 591 F.2d 896, 902 (D.C. Cir. 1978).

At oral argument the Government did not dispute that the December 5 order was the type of agency action ordinarily subject to the notice-and-comment procedure. *fn28 The Government contends, however, that 5 U.S.C. § 553(b)excuses its failure to follow the notice-and-comment route. That subsection creates a narrow exception, applicable only when an "agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." *fn29

We recently admonished agencies that circumstances justifying reliance on this exception are "indeed rare" and will be accepted only after the court has "examine(d) closely proffered rationales justifying the elimination of public procedures." American Federation of Government Employees v. Block, 210 U.S. App. D.C. 336, 655 F.2d 1153, 1157 n.6 (D.C. Cir. 1981). We proceed, therefore, to "examine closely" both the circumstances surrounding the December 5 order and the Secretary's stated rationale for failing to follow notice-and-comment procedures before issuing that order.

The Secretary's justification for dispensing with notice and an opportunity to comment was "the imminence of the deadline " for implementing the SCSR regulations. This rationale is one that permits avoidance of APA procedures only in exceptional circumstances. Otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the eve of a statutory, judicial, or administrative deadline, then raise up the "good cause" banner and promulgate rules without following APA procedures. Because of this possibility for abuse, "the mere existence of deadlines for agency action ... (can) not in itself constitute good cause for a § 553(b)exception." United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 213 (5th Cir. 1979), quoted in American Federation of Government Employees (supra) 655 F.2d at 1158.

In this case, however, we do not believe MSHA tarried through the fall of 1980, knowing that the SCSR regulations could not be implemented on time, and then postponed the implementation date at the eleventh hour. Instead, we believe that MSHA, recognizing the life-saving importance of the SCSR rules, was determined to implement the rules on time; that the agency believed through the end of November 1980 that on-schedule implementation was possible; and that only at the beginning of December, when it truly was too late to follow notice-and-comment procedures, did the agency concede that effective implementation of the regulations would be advanced by a relatively short-term postponement. Our conclusion is based on five factors that, in combination, render this a special, possibly unique, case.

First, the circumstances that ultimately forced MSHA to postpone implementation of the regulations were beyond the agency's control. Field tests were not completed on schedule because of delays in obtaining approval for production model SCSRs and because both mine operators and miners refused to participate in the tests until MSHA answered last-minute safety concerns about SCSRs. *fn30 Sufficient supplies of SCSRs were unavailable in December 1980 because of delays in obtaining approval for production models and because of industry's failure to order the devices. *fn31 MSHA's actions caused neither of these problems.

Second, MSHA acted diligently both to initiate field testing and to overcome the hurdles created by other parties. The agency developed an action plan for field tests early in 1979. *fn32 It did not dawdle at the outset and then attempt a rush in the final months. When roadblocks threatened to hold up the field testing program, MSHA reacted resourcefully. It completed some field tests with hand-manufactured SCSRs, *fn33 requested a comprehensive Bureau of Mines study on the safety of SCSRs, *fn34 and performed some field tests in mines that were not owned by members of the resistant BCOA. *fn35

Third, the record strongly indicates that, even in November 1980, MSHA intended to implement the regulations on schedule. During the first half of that month a MSHA official wrote to the two manufacturers of approved SCSRs and asked how they intended to transport SCSRs to customers, how many of the devices they would have on hand by December 21, and how many units could be produced each month after that date. *fn36 Moreover, once it finally received industry's tardy approval for field testing on November 19, MSHA made immediate plans to complete as many of the tests as possible by December 15. *fn37 And Assistant Secretary Lagather, writing to BCOA about these planned tests, indicated that the regulations indeed would be implemented on December 21. *fn38 There is nothing in the record that shows MSHA wavering over the implementation date until the December 5 order itself issued.

Fourth, when the Secretary did postpone the implementation date, he deferred implementation for a relatively short time. If a rule ranks as a substantive regulation, *fn39 the limited nature of the rule cannot in itself justify a failure to follow notice and comment procedures. We have recognized, however, that "(t)he more expansive the regulatory reach of (agency) rules, ... the greater the necessity for public comment." American Federation of Government Employees (supra) 655 F.2d at 1156. Conversely, the limited scope of the December 5 order influences our finding that the Secretary possessed good cause to dispense with prior notice and comment.

Finally, Government counsel assured this court at oral argument that field testing has been completed, that an evaluation of the tests should be available shortly, and that implementation of the regulations on June 21 of this year is fully anticipated. While these assurances were made after the December 5 order, they contribute substantially to our impression that MSHA has followed a persistent course toward implementation of the regulations without unnecessary delay. Absent these assurances, we might have entertained some doubt about MSHA's good faith intention, throughout the fall of 1980, to implement the regulations on schedule. And were we not convinced of that determination, we could not excuse MSHA's eleventh hour decision to defer implementation without affording interested parties prior notice or an opportunity to comment.

These five factors, taken together, persuade us that the Secretary had good cause to dispense with notice and comment before issuing his December 5 order. We emphasize again, however, that this is an extremely close case. Nothing in this decision diminishes the force of our repeated admonition that "it should be clear beyond contradiction or cavil that Congress expected, and the courts have held, that the various exceptions to the notice-and-comment provisions of section 553 will be narrowly construed and only reluctantly countenanced." New Jersey v. United States Environmental Protection Agency, 200 U.S. App. D.C. 174, 626 F.2d 1038, 1045 (D.C. Cir. 1980). We recognize an exception to that rule in this case, but we do so guardedly, based on the totality of the special circumstances presented. *fn40 III. ARBITRARY AND CAPRICIOUS

Petitioners also contest the reasonableness of the Secretary's decision to postpone implementation of the regulations. In contrast to the borderline question the notice-and-comment issue presents, we have scant difficulty concluding that the Secretary's action was reasonable. During the phase-in period numerous parties, including both coal operators and miners, questioned the safety of SCSRs. Against this background the Secretary reasonably determined that field testing should be finished before the regulations were implemented. Completion of the field tests would help the Secretary satisfy any genuine safety concerns raised by parties governed by the regulations; in addition, the test results would enhance his effort to assure the cooperation of all affected parties when SCSRs were finally introduced into the mines. *fn41

The unavailability of SCSRs, *fn42 moreover, is a factor relevant to our consideration of the Secretary's decision to delay implementation. While the Government clarified at oral argument that unavailability of the devices was not an "independent justification" for the deferral, the fact that very few miners would have received SCSRs by December 21 fortified the Secretary's decision to delay implementation of the regulations. *fn43 As the Government now points out, the unavailability of SCSRs rendered less severe the practical consequences of the Secretary's decision to defer implementation until field testing was complete.

Finally, we note a point stressed by Government counsel in briefing and arguing this case. As the December deadline approached, MSHA found that guidelines on the storage of SCSRs and the training of miners had not been completed. *fn44 While the Secretary did not rely on this problem in his published notice of deferral, the lack of finished guidelines on these important matters was a factor that could reasonably have influenced the Secretary's decision to defer implementation.

We regret that the long effort to equip miners with safe, oxygen-generating rescue devices has been prolonged an additional six months. We do not believe, however, that MSHA has been insensitive to the health and safety of underground miners. Satisfactory deployment of SCSRs will demand the cooperation of both coal operators and miners. To assure that cooperation, and to reassure the concerned parties that SCSRs would not introduce additional dangers into the hazardous mine environment, MSHA reasonably decided to postpone implementation of the SCSR regulations from December 21, 1980, to June 21, 1981.


Since we find the Secretary's December 5 order neither procedurally infirm nor arbitrary and capricious, that order is


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