January 01, 2018

An Inside-Out View of Natural Resources Law

Frederick H. Turner

Discussions about natural resources law traditionally focus on regulatory developments at the Department of the Interior (DOI), Department of Commerce, and the Department of Agriculture and the implications of those developments for resource management, public health, and the environment. But these discussions tend to overlook the role played by the Department of Labor (DOL) in natural resources law and, in particular, the role of the Mine Safety and Health Administration (MSHA), which Congress established to help protect those who extract natural resources from the ground. A review of recent MSHA rulemakings and related court cases provides a glimpse of what could be described as an inside-out view of natural resources law—that is, the perspective of those who face the risk of injury and illness in the resource-extraction workplace.

MSHA was created in 1977 when Congress passed the Federal Mine Safety and Health Act (Mine Act), Pub. L. 95-164, which amended the Federal Coal Mine Safety and Health Act of 1969 (Coal Act), Pub. L. 91-173, and consolidated other provisions. Under the Coal Act, mine safety had been handled primarily by DOI while miners’ health was handled primarily by the Department of Health, Education and Welfare (the predecessor to the Department of Health and Human Services (HHS)). Congress, however, recognized a conflict in DOI’s missions, noting that in “past years, the Department has pursued the goal of maximizing production in the extractive industries, which was not wholly compatible with the need to interrupt production which is the necessary adjunct to the enforcement scheme.” S. Rep. No. 95-181, at 5 (1977). As a result, primary authority over the Mine Act was transferred to the secretary of labor, “who represents an agency that puts the welfare of workers above all other considerations.” H.R. Rep. No. 95-312, at 2 (1977). Congress also gave MSHA regulatory authority over safety and health standards. 30 U.S.C. § 811(a); 29 U.S.C. § 557a.

One of the greatest threats to the health of miners is the exposure to dusty air. In 2016, the Eleventh Circuit upheld an MSHA rule aimed at curbing pulmonary diseases caused by respirable coal dust (RCD), such as pneumoconiosis, silicosis, chronic obstructive pulmonary disease, emphysema, and chronic bronchitis. In National Mining Association v. U.S. Department of Labor, 812 F.3d 843 (11th Cir. 2016), the court addressed an industry challenge to a rule titled Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors (New Dust Rule). 79 Fed. Reg. 24,814 (May 1, 2014). The rule has three major components. First, it lowered the maximum acceptable concentration of RCD from two milligrams per cubic meter to 1.5 milligrams per cubic meter. 30 C.F.R. § 70.100(a)(2). Second, MSHA made multiple changes to how operators measure dust levels. Most importantly, the rule required measurements for single shifts rather than multishift averaging, which had left workers on certain shifts exposed to excessive levels, and required an operator to take immediate corrective action when it identified a single shift with an excessive concentration. Id. §§ 72.800, 70.206(e). Third, it required operators to use continuous personal dust monitors for the real-time measurement in the dustiest parts of the mine. Id. § 70.201.

Mining industry trade groups petitioned for review of the New Dust Rule in the Sixth and Eleventh Circuits, and the cases were consolidated in the Eleventh Circuit. The industry petitions presented two arguments. First, they maintained that MSHA exceeded its authority because it had not coordinated with HHS and the National Institute for Occupational Safety and Health. Second, they claimed that MSHA acted arbitrarily and capriciously in promulgating the rule and thus violated the Administrative Procedure Act. Nat’l Mining Ass’n, 812 F.3d at 848. The Eleventh Circuit decided the first issue based largely on the text of section 101 of the Mine Act, which states that the secretary of labor “shall by rule . . . 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. § 811(a). The court concluded that under this statutory language, the regulatory authority and responsibility “belong to the Secretary of Labor alone.” Nat’l Mining Ass’n, 812 F.3d at 861.

The Eleventh Circuit also dismissed the petitioners’ challenges to the substantive aspects of the New Dust Rule. Id. at 864–84. Petitioners had asserted, inter alia, that a sample from a single shift would not be representative of the exposure for each miner because sampling occurs in the dustiest parts of the mine. The court rejected this interpretation, stating that “[i]n light of the congressional purpose and lack of any statutory command to the contrary, it is permissible for MSHA to select a sampling scheme that resolves ambiguities in dust levels resulting from sampling issues in favor of miners’ health, even if it results in a scheme that is more aggressive in its demands on the industry.” Id. at 871. The court further found that the administrative record supported MSHA’s conclusions about the technological and economic feasibility of the rule. Here, the court did not require a cost-benefit analysis, because “Congress itself defined the basic relationship between costs and benefits, by placing the ‘benefit’ of worker health above all other considerations save those making attainment of this ‘benefit’ unachievable.” Id. at 872 (quoting Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 509 (1981)).

The question of economic feasibility is also at issue in a recent legal challenge to an MSHA rule titled Examinations of Working Places in Metal and Nonmetal Mines (Working Places Rule), 82 Fed. Reg. 7,680 (Jan. 23, 2017), which has not yet gone into effect. Standards for examining metal and nonmetal mines first were established by DOI’s Bureau of Mines in 1966 under the Federal Metal and Nonmetallic Mine Act of 1966 (MNM Act). When Congress passed the Mine Act, however, it repealed the MNM Act and the regulation of metal and nonmetal mines came under MSHA, which revised the standards in 1979. The 2017 rule would make three changes to the requirements. First, the rule would mandate that the examination be conducted before the miners begin working, which would prevent miners from being exposed to risks identified during the shift. Id. at 7,682. Second, the operator must notify the miners if they identify any conditions that may adversely affect their safety or health and begin corrective action promptly. Id. at 7,684–85. Third, the rule expanded the scope of information that had to be in the examination report. Id. at 7,685.

In March 2017, mining industry groups petitioned the Eleventh Circuit to review the Working Places Rule. Nat’l Mining Ass’n v. MSHA, No. 17-11207 (11th Cir. 2017). In their briefs, petitioners asserted that MSHA had failed to demonstrate a need for the revised standards or any significant risks associated with the existing standards, acted arbitrarily and capriciously, and underestimated the costs associated with the rule. In defense of the rule, MSHA argued that a threshold finding of significant risk was not required and noted that, even if it was required, that finding had been made because of the 122 fatalities that occurred in metal and nonmetal mines between 2010 and 2015. Citing the Eleventh Circuit’s decision in the New Dust Rule case, MSHA argued that the Mine Act does not require a cost-benefit analysis.

Although the Working Places Rule originally was scheduled to take effect in May 2017, the effective date has been delayed by MSHA. Ten days after the petition for review was filed by industry, MSHA proposed to delay the rule to July 2017 and explained the delay as an effort “to assure that mine operators and miners affected by the examinations final rule have the training and compliance assistance they need prior to the rule’s effective date.” 82 Fed. Reg. 15,173 (Mar. 27, 2017). MSHA initially extended the effective date to October 2017, but in September 2017, MSHA proposed changes to the rule, and a month later, the agency stayed the effective date to June 2018. 82 Fed. Reg. 42,757 (Sept. 12, 2017); 82 Fed. Reg. 46,411 (Oct. 5, 2017). The Eleventh Circuit subsequently granted the petitioners’ request to postpone oral argument in National Mining Association v. MSHA and to hold the case in abeyance.

The Working Places Rule is not the only rule that has been delayed since the beginning of the Trump administration. The DOL’s Occupational Safety and Health Administration also has delayed rules. For example, it extended by six months the compliance date for a recordkeeping rule aimed at tracking workplace injuries and illnesses, 82 Fed. Reg. 29,261 (June 28, 2017) and delayed by three months enforcement of a new permissible exposure limit for silica dust. https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=interpretations&p_id=31082.

The Working Places Rule is one of three MSHA rules that were placed on the Trump administration’s regulatory agenda published on July 20, 2017, but the MSHA actions that are not on the 2017 regulatory agenda can be as revealing given the administration’s goal of rolling back regulation. See Juliet Eilperin & Darla Cameron, How Trump Is Rolling Back Obama’s Legacy, Washington Post, Mar. 24, 2017 (updated July 31, 2017). For MSHA, these include the withdrawal of a rule that would have revised the process for assessing civil penalties for Mine Act violations (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201704&RIN=1219-AB72), the withdrawal of a request for information on rock dusting, ventilation, and mine examinations in the aftermath of the mine explosion at the Upper Big Branch mine (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201704&RIN=1219-AB85), and the placement of a proposal to reevaluate the standards for silica dust on to a list of long-term actions for MSHA (https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201610&RIN=1219-AB36).

This glimpse into current events in the regulation of mine safety and health is aimed at providing a different perspective on natural resources law, which usually focuses on the impacts that mining and the materials coming out of mines have on the environment and public health. An inside-out view of natural resource extraction, though, shows that miners face significant risk of injury and illness in their workplace environment. Applying this inside-out view to the history of natural resources law also demonstrates that miners’ safety and health are part of a much longer narrative of regulation at the state and federal levels and of recognition by courts of the hazards faced in mines. In 1898, for example, the Utah legislature passed and the Supreme Court upheld an eight-hour law for miners, which was aimed at limiting the exposure to the dangerous conditions of mining. Holden v. Hardy, 169 U.S. 366 (1898). The majority opinion in Holden emphasized the harm associated with labor “when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases generated by the processes of refining or smelting.” Id. at 396. The view from beneath the surface of the earth provides a more complete picture of natural resources law and shows the interconnection between occupational health and the environment.

Frederick H. Turner

Mr. Turner is an attorney in the Environment and Natural Resources Division of the U.S. Department of Justice and a member of the editorial board of Natural Resources & Environment. He may be reached at fredturner@gmail.com. The views expressed here are the author’s own and do not necessarily represent the views of the U.S. Department of Justice or the United States.