PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 98-6159 FILED
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U.S. COURT OF APPEALS
Rule No. 68372 ELEVENTH CIRCUIT
09/04/98
THOMAS K. KAHN
CLERK
NATIONAL MINING ASSOCIATION, ALABAMA COAL ASSOCIATION,
Petitioners,
versus
SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, et al.,
Respondents.
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Petition for Review of an Order
of the Mining Safety and Health Administration
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(September 4, 1998)
Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, Senior
District Judge.
_______________
* Honorable William Stafford, Senior U.S. District Judge for the
Northern District of Florida, sitting by designation.
EDMONDSON, Circuit Judge:
The National Mining Association and
the Alabama Coal Association (“NMA”)
dispute a finding of the Mining Safety
and Health Administration (“MSHA”) that
allows testing the amount of coal dust in
mines by using measurements taken
over a single shift, rather than
traditional multi-shift measurements.
NMA challenges the new sampling method
on substantive and procedural grounds.
We vacate the finding.
2
Background
One of the reasons Congress passed the
Federal Coal Mine and Safety Act (“the Coal
Act”) in 1969 was to reduce the amount of
coal dust inhaled by coal miners. The dust
was known to cause Black Lung Disease. The
Coal Act provided interim standards for
the maximum amount of coal dust
permitted in coal mines as well as
guidance on how to measure the level of
3
coal dust in a mine’s atmosphere. The
interim standards were effective until
1
the Secretaries created improved health
standards. Relevant provisions of the Coal
Act were re-enacted in the Federal Mine
Safety and Health Act of 1977 (“the Mine
Act”). See
30 U.S.C. §§ 801-962 (1994).
1
Throughout this opinion, “the Secretary”
normally means the Secretary of Labor.
MSHA is part of the Department of
Labor. Under the Coal Act, however, the
Secretaries meant the Secretary of the
Interior and Secretary of Health,
Education, and Welfare.
4
This dispute revolves around several
provisions of the Mine Act. Under
30 U.S.C.
§ 841(a) the Secretary has authority to
supersede the “interim mandatory health
and safety standards” of the Mine Act
with “improved mandatory health and
safety standards.” But the Secretary must
enact the new standards according to the
provisions of Section 811. See
30 U.S.C. §
811(a). Section 811(a)(6) is at the heart of the
current controversy. It states the
Secretary “shall set standards” that
5
adequately assure, on the basis of the “best
available evidence” that no miner will
suffer “material impairment of health”
under the new standard and that the
Secretary shall also consider the “latest
available scientific data in the field, the
feasibility of the standards, and
experience gained under this and other
health and safety laws.”
Other pertinent provisions of the
Mine Act include Section 842(b)(2) which
requires that the “average concentration”
6
of coal dust to which a miner is exposed
during each shift not exceed 2.0
milligrams per cubic meter of air (2.0
mg/m ). Average concentration is defined
3
as a concentration that
accurately represents the
atmospheric conditions with regard
to respirable dust to which each
miner . . . is exposed . . . over a
single shift only, unless [the
Secretary] finds in accordance with
. . . Section 811 . . . that such single
shift measurement will not, after
applying valid statistical techniques
to such measurement, accurately
represent such atmospheric
conditions during such shift.
7
30 U.S.C. § 842(f).
In 1971, MSHA’s predecessor, the Bureau
of Mines, proposed a finding that single-
shift sampling would not accurately
represent the atmospheric conditions of a
mine. See
36 Fed. Reg. 13286 (1971). The
proposed finding was made final in 1972.
See
37 Fed. Reg. 3833 (1972). MSHA now
wishes to rescind the 1971/72 finding and
to begin single-shift sampling.
In attempting to rescind the 1971/72
finding, MSHA published two notices in the
8
Federal Register. The first, published in
February 1994, stated MSHA’s plan to
rescind the 1971/72 finding and replace it
with a single, full-shift measurement of the
atmospheric conditions. See
59 Fed. Reg.
8357 (1994). The second, published
simultaneously, stated that citations would
be issued based on single-shift sampling.
See
59 Fed. Reg. 8356 (1994).
Single-shift sampling -- in part -- grew
out of MSHA’s Spot Inspection Program
(“SIP”), itself designed to defeat suspected
9
tampering of dust samples by mine
operators. See
63 Fed. Reg. 5664, 5667 (1998).
After the SIP, MSHA concluded that multi-
shift sampling was inaccurate because
multi-shift sampling did not lead to
citations in places where the SIP had
shown miners to be overexposed. See
id. at
5668. The Federal Mine Safety and Health
Review Commission, however, vacated
citations issued under the SIP because of
MSHA’s failure to comply with the
rulemaking procedures in Section 811. See
10
Secretary of Labor v. Keystone Coal
Mining Corp.,
16 FMSHRC 6 (1994).
Another reason given by MSHA for
rescinding the 1971/72 finding is the
improvement in air sampling technology.
See
63 Fed. Reg. 5664, 5666 (1998). Since 1971,
significant improvements have been
made to calibration procedures, weighing
accuracy, and sampling pumps. See
id.
The accuracy of single-shift sampling is
hotly debated by the parties. NMA argues
11
that single-shift sampling is so inaccurate
that a large number of citations will be
erroneously issued to coal mine operators.
MSHA counters that single-shift
measurements are more accurate because
they tend to expose spatial or temporal
peaks in dust levels that would, under a
multi-shift measurement, be masked by
some measurements below the 2.0 mg/m
3
threshold when averaged with the peak
values. See
id. at 5689. MSHA supports this
12
conclusion by pointing out that multi-shift
measurements were always highest during
the first measured shift: it was only
after the first shift, says MSHA, that
operators had time to affect dust
production. See
id. at 5668.
Because of this debate, the period for
public comment was extended several
months, and two public hearings were held
about the notices. See, e.g.,
61 Fed. Reg. 18158
(1996). As a result of the comments, MSHA
13
defined “accurately represent[]” (as used in
30 U.S.C. § 842(f)), re-opened the comment
period, and held a public hearing on the new
definition. See
61 Fed. Reg. 10012, 10013 (1996).
In February 1998, MSHA issued the subject
of our review, the Joint Finding and
Noncompliance Determination Notice
(“the Joint Finding”) which rescinded the
1971/72 finding. See
63 Fed. Reg. 5664 (1998).
14
Discussion
NMA raises procedural objections
under the Mine Act, the Administrative
Procedure Act (“APA”), and the Regulatory
Flexibility Act (“RFA”), and substantive
objections to the Joint Finding. We will
address only the procedural objections.
A. The Mine Act
15
NMA says that the procedural
requirements of the Mine Act, in
30 U.S.C.
§ 811, were not met by MSHA’s Joint
Finding. MSHA makes two arguments in
response. First, the use of single-shift
measurements is no mandatory health
and safety standard and, therefore, does
not need to comply with Section 811. Second,
if the Joint Finding is a mandatory health
and safety standard, MSHA argues, the
Joint Finding complied with the procedural
16
requirements of Section 811. In arguing
that the Joint Notice complied with
Section 811, however, MSHA insists that
portions of Section 811 do not contain
procedural requirements.
An agency’s interpretation of its
governing statute is often given
significant deference. See Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council,
467 U.S. 837, 842-43 (1984). But, when
applying Chevron’s first step, we do not
17
need to defer when the issue is a “pure
question of statutory construction.” See
INS v. Cardoza-Fonseca,
480 U.S. 421, 446
(1987). Likewise, we need not defer to issues
beyond the agency’s expertise. See Morris
v. CFTC,
980 F.2d 1289, 1293 (9th Cir. 1992);
see also Colorado Public Utils. Comm’n v.
Harmon,
951 F.2d 1571, 1579 (10th Cir. 1991)
(not deferring on issue of preemption);
Lynch v. Lyng,
872 F.2d 718, 724 (6th Cir.
18
1989) (not deferring on issue of statute’s
effective date).
Because deciding if MSHA must address
the requirements of Section 811(a)(6) is a
question of pure statutory construction,
we need not defer to MSHA’s
interpretation. We conclude that MSHA’s
various interpretations of Section
811(a)(6) -- as we shall explain -- are
incorrect.
19
Use of single-shift measurements by
MSHA is a health and safety standard.
Mandatory health and safety standard is
defined, in Section 802(l) as “the interim
mandatory health or safety standards”
between Section 841 and Section 846.
Section 842(f) is the basis for single-shift
sampling. Furthermore, Section 841(a)
refers to Sections 842-846 as “interim
mandatory health standards.” At a
minimum, therefore, Section 842(f) is an
20
interim mandatory health standard.
Section 841(a) continues, however, to say
that the interim mandatory health
standards of Sections 842-846 are
effective “until superseded in whole or in
part by improved mandatory health
standards.” Single-shift sampling
supersedes multi-shift sampling, which was
based on Section 842(f). Single-shift
sampling, therefore, is an “improved
mandatory health standard.” See United
21
Mine Workers v. Dole,
870 F.2d 662, 671
(D.C. Cir. 1989) (the term “mandatory
standard” includes standards adopted to
replace an existing mandatory standard);
id. at 672 (concluding Section 811(a)(9) is a
mandatory standard). According to
Section 841(a), any new standard must be
“promulgated . . . under the provisions of
2
Section 811.”
2
MSHA argues that not all the
provisions of Sections 842-846 can
require rulemaking in accordance with
Section 811. But, Section 841 makes no
distinction between the provisions in
22
The reasoning of the Federal Mine
Safety and Health Review Commission (“the
Commission”) in Secretary of Labor v.
Keystone Coal Mining Corp.,
16 FMSHRC 6, 13
(1994) supports our conclusion that MSHA’s
new sampling method is a mandatory
Sections 842-846 when it requires the
Secretary to comply with Section 811
requirements. Also, Section 842(f) is
distinct from the other provisions in
that it contains an explicit
requirement for the Secretary to comply
with Section 811 procedures. See
30 U.S.C. §
842(f). Still, these provisions are not at
issue today, and we do not decide if
Section 811 requirements apply to them.
23
health standard. In Keystone, the
Commission rejected MSHA’s argument
that single-shift measurements did not
require following Section 811 procedures.
Section 842(f), said the Commission,
explicitly requires MSHA to follow Section
811 procedures if the Secretary decides not
to use single-shift measurements. This
intent -- to use Section 811 procedures if
rejecting single-shift measurements --
“bespeaks an equal intent that, once such a
24
finding is made, it may be rescinded only”
by following Section 811 procedures.
Id.
MSHA next argues that it did comply
with Section 811, but that MSHA must only
comply with the procedure-setting portions
of Section 811. MSHA says Section 811(a)(6)
3
contains no procedure-setting provisions.
3
In the alternative, MSHA argues that
the 2.0 mg/m standard encompasses the
3
Section 811(a)(6) requirements. In other
words, MSHA argues that, so long as they
do not alter the 2.0 mg/m standard,
3
then the improved mandatory health
standard is automatically feasible, does
not materially impair miners’ health,
and is based on the best available
25
We think MSHA’s interpretation is
incorrect.
The plain language of Sections 842(f)
and 841(a) requires mandatory health or
safety standards to be made “under” or “in
accordance with” the “provisions of section
811.” No restriction suggests that MSHA
must comply only with the procedures in
Section 811. Where Congress sought to refer
scientific evidence. The plain language of
Section 841(a), however, states that
Section 811 standards apply to Sections
“842 through 846.”
30 U.S.C. § 841(a)
(emphasis added).
26
only to the procedural aspects of Section 811,
it did so clearly. See
29 U.S.C. § 811(b)(2) (“A
temporary mandatory health or safety
standard shall be effective until superseded
by a mandatory standard promulgated in
accordance with the procedures prescribed
in [Section 811(a)(3)].”) (emphasis added).
Our conclusion using the statute’s plain
meaning is supported by three additional
points. First, Section 811(a)(6) says that
MSHA shall consider the feasibility of the
27
standards. The language is not
discretionary. Second, MSHA, in more
recent rulemakings, recognizes the
requirement to address feasibility. See
63
Fed. Reg. 17492, 17558 (1998) (addressing
feasibility of proposed rule on diesel
4
engine exhaust in mines). Third, MSHA is
4
We fail to understand MSHA’s
argument that the diesel rulemaking is
inapplicable because it applies to
operators, whereas single-shift sampling
applies to MSHA inspectors. Section 811
makes no such distinction. In addition,
MSHA uses inspector sampling to cite
and fine mine operators so, in this
respect, changes to the inspector
28
reversing its prior policy on sampling.
Proper procedures are particularly
important where, as here, MSHA’s
predecessor studied and rejected single-shift
sampling.
To use single-shift measurements, then,
MSHA must follow all the provisions of
Section 811. We conclude MSHA has not done
so.
Section 811 requires notice, the
opportunity for public comment, public
sampling program do apply to operators.
29
hearings if requested, and final publication
in the Federal Register. There can be little
doubt, as detailed in the facts above, that
MSHA satisfied these requirements. But as
we have explained, MSHA must also satisfy
the requirements of Section 811(a)(6).
Therefore, MSHA must demonstrate that
the new standard (a) adequately assures
that no miner will suffer a material
impairment of health, on the basis of the
best available evidence; (b) uses the latest
30
available scientific data in the field; (c) is
5
feasible; and (d) is based on experience
gained under the Mine Act and other
health and safety laws. See
30 U.S.C. §
811(a)(6)(A).
After a review of the record, we
conclude that the record contains no
finding of economic feasibility. The
5
"Feasibility” under OSHA means
technological and economic feasibility.
See Color Pigments Mfrs. Ass’n v. OSHA,
16
F.3d 1157, 1161 (11th Cir. 1994). We believe the
Mine Act term “feasibility” includes these
concepts as well, but we do not otherwise
address the applicability of OSHA.
31
absence of a showing of economic
feasibility is not surprising because MSHA
insisted, in the Joint Finding, that “there
is no need to address feasibility.”
63 Fed.
6
Reg. 5664, 5669 (1998).
6
At oral argument, MSHA’s counsel
suggested that the Regulatory Flexibility
Analysis (discussed in note 7) contained
a study of economic feasibility. But,
“[b]urdened by the view that [Section
811(a)(6)] was advisory, MSHA neither
explored for itself nor elicited
comments” regarding the economic
feasibility of single-shift sampling.
United Mine Workers,
870 F.2d at 674.
Determining if a regulation will have a
“significant economic impact on a
substantial number of small [or large]
32
We conclude, therefore, that MSHA failed
to comply with Section 811(a)(6) of the Mine
entities,” under the RFA, is not the same
as deciding if the rule is economically
feasible.
33
7
Act. So we must vacate the Joint Finding.
7
We will address NMA’s other procedural
objections. NMA makes two challenges
under the Administrative Procedure Act.
We reject NMA’s first argument that
MSHA failed to provide notice of its plan
to apply the Joint Finding to surface
mines. MSHA’s inspector sampling
program -- the program altered by single-
shift sampling -- has applied to surface
mines since the program’s inception.
Also, MSHA referred to
30 C.F.R. § 71 --
regulating surface mines but not
underground mines -- several times
during the rulemaking. We note that
NMA submitted comments referencing
30 C.F.R. § 71. We also reject NMA’s second
argument, that MSHA relied on
undisclosed material for the Joint
Finding. The information used by MSHA
after the record closed was not new or
critical to the Joint Finding.
34
VACATED.
NMA also challenges the Joint
Finding under the Regulatory Flexibility
Act,
5 U.S.C.A. § 603 (West Supp. 1998) (“RFA”).
We reject this argument. We find the
Secretary’s certification that single-
shift sampling will not have a
“significant economic impact on a
substantial number of small entities”
meets the requirements of Section
605(b), but -- as discussed in note 6 -- does
not demonstrate the rule’s economic
feasibility.
35
