KENNECOTT GREENS
ORAL
ARGUMENT SCHEDULED FOR JANUARY 9, 2007
No.
01-1046
===================================================
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
___________________
KENNECOTT
GREENS CREEK MINING CO.,
Petitioner
v.
MINE SAFETY AND HEALTH ADMINISTRATION and
SECRETARY OF LABOR,
Respondents,
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION,
Intervenor,
Consolidated with 01-1124, 01-1146, 05-1255
05-1291, 05-1296, 05-1312, 05-1314, 06-1184,
06-1194, 06-1204, 06-1205, 06-1223, 06-1225
____________________
On Petition for Review of Final Standards
of the Secretary of Labor
___________________
FINAL
BRIEF FOR THE RESPONDENTS
___________________
HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor for
Mine Safety and Health
NATHANIEL I. SPILLER
Assistant Deputy Solicitor
EDWARD D. SIEGER
Senior Appellate Attorney
U.S. Department of Labor
200 Constitution Ave., N.W., Rm. N-2428
Washington, D.C. 20210
(202) 693-5260
=======================================================
24000317077
CERTIFICATE
AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28(a), the undersigned counsel certifies as
follows:
A. Parties, Intervenors, and Amici
Except for Georgia Mining Association, a petitioner in No. 01-1146, all
parties, intervenors, and amici appearing in this Court are listed in the Joint
Brief for Petitioners.
B. Rulings Under Review
References to the rulings at issue appear in the Joint Brief for
Petitioners.
C. Related Cases
These consolidated cases have not previously been before this Court or any
other court, and counsel is not aware of any related cases.
_________________________
EDWARD D. SIEGER
Senior Appellate Attorney
TABLE OF CONTENTS
Statement of jurisdiction
Statement of the issues
Statutes and regulations
Statement of the case:
A. Nature of the case and course of proceedings
B. Statement of facts:
1. MSHA's diesel regulations
2. Issues in the metal/nonmetal rulemakings
a.
Need for the rule: DPM's cancer risk
b.
How to measure DPM
c.
Feasibility of compliance:
i. Technological feasibility
ii. Economic feasibility
d.
Medical evaluation and transfer
Summary of argument
Argument
I. MSHA reasonably determined that DPM presents
significant risks of material health impairment
sufficient to justify the carbon-based exposure
limits set in 30 C.F.R. 57.5060(b) for underground
metal and nonmetal mines:
A. The rules address a significant risk of
material health impairment from DPM
B. MSHA reasonably chose carbon-based limits
as
surrogates for measuring DPM exposures
II. The DPM exposure limits are technologically
feasible
A.
Controls exist to meet the 160 TC limit
B. MSHA reasonably predicts that industry
can
meet the 350 TC limit by January 2007
and
the 160 TC limit by May 2008
III.
MSHA reasonably included a provision for medical
evaluation and transfer, fully complied with notice
and comment requirements, and properly rejected
industry's reliance on the Data Quality Act
A.
The medical evaluation and transfer provisions
are
reasonable protections for miners who have to
wear respirators
B.
MSHA complied with notice and comment requirements
C.
Industry lacks standing to rely on the Data Quality Act
Conclusion
Certificate of compliance
Certificate of service
Statutory and regulatory addendum:
30 U.S.C. 811
30 C.F.R.
57.5060-57.5075 (2006)
30 C.F.R.
57.5060-57.5075 (2005)
30 C.F.R.
57.5060-57.5075 (2001)
Back to Top
TABLE OF AUTHORITIES[*]
Cases:
*American
Coke & Coal Chem. Inst. v. EPA,
452 F.3d
930 (D.C. Cir. 2006)
American
Fed. of Gov't Employees v. Rumsfeld,
321 F.3d
139 (D.C. Cir. 2003)
*American
Iron & Steel Inst. v. OSHA (AISI),
939 F.2d
975 (D.C. Cir. 1991)
American
Iron & Steel Inst. v. OSHA (AISI),
182 F.3d
1261 (11th Cir. 1999)
American
Textile Mfgrs. Inst. v. Donovan,
452 U.S.
490 (1981)
*American
Trucking Ass'ns v. EPA,
283 F.3d
355 (D.C. Cir. 2002)
Building &
Constr. Trades Dep't v. Brock,
838 F.2d
1258 (D.C. Cir. 1988)
City of
Waukesha v. EPA,
320 F.3d
228 (D.C. Cir. 2003)
Husqvarna
AB v. EPA,
254 F.3d
195 (D.C. Cir. 2001)
In re
United Mine Workers,
190 F.3d
545 (D.C. Cir. 1999)
Industrial
Union Dep't v. American
Petroleum Inst.,
448 U.S.
607 (1980)
International Union, UAW v. Pendergrass,
878 F.2d
389 (D.C. Cir. 1989)
National
Indus. Sand Ass'n v. Marshall,
601 F.2d
689 (3d Cir. 1979)
*National
Mining Ass'n v. MSHA,
116 F.3d
520 (D.C. Cir. 1997)
*National
Petrochem. & Refiners Ass'n v. EPA,
287 F.3d
1130 (D.C. Cir. 2002)
New York
v. EPA,
413 F.3d
3 (D.C. Cir. 2005)
*Salt
Inst. v. Leavitt,
440 F.3d
156 (4th Cir. 2006)
Secretary
of Labor v. Asarco, Inc.,
19
F.M.S.H.R.C. 1097 (ALJ 1997),
pet.
dismissed, 20 F.M.S.H.R.C. 1001 (ALJ 1998),
pet.
dismissed, 206 F.3d 720 (6th Cir. 2000)
Secretary
of Labor v. Callanan Indus., Inc.,
5
F.M.S.H.R.C. 1900,
1983 WL
165363 (Comm'n Nov. 9, 1983)
*United
Steelworkers v. Marshall,
647 F.2d
1189 (D.C. Cir. 1980)
United
Steelworkers v. Schuylkill Metals Corp.,
828 F.2d
314 (5th Cir. 1987)
Statutes and
regulations:
American Jobs
Creation Act of 2004,
Pub. L.
No. 108-357, § 302,
118 Stat.
1418, 1463-1464
Data Quality
Act, a/k/a Information Quality Act,
Pub. L.
No. 106-554, § 515, 114 Stat.
2763,
2763A-153 (2000)
Federal Mine
Safety and Health Act of 1977,
30 U.S.C.
801 et seq.:
Section
101, 30 U.S.C. 811
Section
101(a)(2), 30 U.S.C. 811(a)(2)
Section
101(a)(6)(A), 30 U.S.C. 811(a)(6)(A)
Section
101(a)(7), 30 U.S.C. 811(a)(7)
Section
101(d), 30 U.S.C. 811(d)
30 C.F.R.:
Section
57.5005(a)
Section
57.5005(b)
Sections
57.5060-57.5075
Section
57.5060(b)
Section
57.5060(d)(1)
Section
57.5060(d)(2)
Section
57.5067
40 C.F.R.:
Section
86.007-11(a)(1)(iv)
Section
1039.1
Section
1039.102
57 Fed. Reg.
(Jan. 6, 1992):
p. 500
pp.
501-503
63 Fed. Reg.
(Apr. 9, 1998):
p. 17,492
p. 17,498
63 Fed. Reg.
(Oct. 29, 1998):
p. 58,104
p. 58,117
p. 58,125
66 Fed. Reg.
(Jan. 19, 2001):
p. 5526
p. 5527
p. 5561
p. 5589
p. 5706
p. 5707
p. 5708
p. 5709
pp.
5711-5712
p. 5712
p. 5713
p. 5716
pp.
5718-5722
p. 5719
p. 5726
p. 5729
p. 5730
p. 5734
pp.
5735-5738
pp.
5740-5744
p. 5746
pp.
5756-5758
pp.
5759-5760
p. 5763
p. 5764
pp.
5764-5811
p. 5840
p. 5842
p. 5846
p. 5848
p. 5849
p. 5851
p. 5852
p. 5853
p. 5854
p. 5855
pp.
5857-5858
p. 5859
p. 5860
p. 5861
p. 5862
p. 5863
pp.
5873-5879
p. 5887
p. 5888
p. 5889
p. 5890
p. 5894
p. 5895
p. 5907
67 Fed. Reg.
(July 18, 2002):
p. 47,296
p. 47,298
68 Fed. Reg.
(Aug. 14, 2003):
p. 48,668
p. 48,670
p. 48,671
p. 48,682
p. 48,695
70 Fed. Reg.
(June 6, 2005):
p. 32,868
p. 32,870
p. 32,871
p. 32,873
p. 32,876
p. 32,879
p. 32,883
p.
32,886-32,887
p. 32,894
p. 32,898
p. 32,899
pp.
32,900-32,915
pp.
32,910-32,914
p. 32,911
p. 32,915
p. 32,916
p. 32,917
pp.
32,918-32,919
p. 32,920
p. 32,921
pp.
32,922-32,923
p. 32,924
p. 32,927
p. 32,929
p. 32,933
p. 32,937
p. 32,939
p. 32,944
p. 32,945
p. 32,951
pp.
32,953-32,954
p. 32,956
pp.
32,957-32,958
p. 32,966
70 Fed. Reg.
(Sept. 7, 2005):
p. 53,280
p. 53,283
p. 53,284
p. 53,285
p. 53,286
p. 53,287
p. 53,288
p. 53,289
p. 53,293
71 Fed. Reg.
(May 18, 2006):
p. 28,924
pp.
28,926-28,933
p. 28,928
p. 28,933
p. 28,935
p. 28,936
p. 28,937
p. 28,938
p. 28,939
p. 28,940
p. 28,942
p. 28,943
p. 28,944
p. 28,947
p. 28,948
pp.
28,949-28,950
p. 28,953
p. 28,954
p. 28,955
p. 28,958
p. 28,961
pp.
28,963-28,964
p. 28,964
p. 28,966
p. 28,968
p. 28,972
p. 28,973
p. 28,978
p. 28,979
p. 28,981
p. 28,982
p. 28,983
p. 28,985
p. 28,986
pp.
28,987-28,988
p. 28,990
p. 28,991
p. 28,992
p. 28,997
pp.
29,000-29,006
p. 29,012
Miscellaneous:
S. Rep. No.
95-181 (1977)
Back to Top
GLOSSARY
A:BKG-[#] |
Bckground document in certified index, pt. A |
A:COMM-[#] |
Comment document in certified index, pt. A |
A:CORR-[#] |
Correspondence document in certified index, pt. A |
A:HEAR-[#] |
Hearing transcript in certified index, pt. A |
B:ACTV-[#] |
Activity document in certified index, pt. B |
B:BKG-[#] |
Background document in certified index, pt. B |
B:COMM-[#] |
Comment document in certified index, pt. B |
B:CORR-[#] |
Correspondence document in certified index, pt. B |
B:GEN-[#] |
General document in certified index, pt. B |
Document [#] |
Document in certified index, pt. C |
DPM
|
Diesel particulate matter |
EC
|
Elemental carbon |
EPA
|
Environmental Protection Agency |
HTDPF
|
High temperature disposable diesel particulate filter |
IARC |
International Agency for Research on Cancer |
MSHA
|
Mine Safety and Health Administration |
NIOSH
|
National Institute for Occupational Safety and Health |
NCI
|
National Cancer Institute |
NMA
|
National Mining Association |
NO2
|
Nitrogen dioxide |
NSSGA |
National Stone, Sand, and Gravel Association |
OC
|
Organic carbon |
OSHA
|
Occupational Safety and Health Administration |
TC
|
Total carbon |
USW
|
United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union |
ORAL ARGUMENT
SCHEDULED FOR JANUARY 9, 2007
____________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________
No. 01-1046
____________________
KENNECOTT
Back to Top
KENNECOTT
GREENS
CREEK MINING CO.,
Petitioner
v.
MINE SAFETY AND HEALTH ADMINISTRATION and
SECRETARY OF LABOR,
Respondents,
and
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION,
Intervenor,
Consolidated with 01-1124, 01-1146, 05-1255
05-1291, 05-1296, 05-1312, 05-1314, 06-1184,
06-1194, 06-1204, 06-1205, 06-1223, 06-1225
____________________
On Petition for Review of Final Standards
of the Secretary of Labor
____________________
FINAL BRIEF FOR
RESPONDENTS
____________________
STATEMENT OF JURISDICTION
This Court has jurisdiction under 30 U.S.C. 811(d) to review the Mine
Safety and Health Act standards at issue. The standards were promulgated on
January 19, 2001, June 6, 2005, and May 18, 2006. 66 Fed. Reg. 5706 (2001); 70
Fed. Reg. 32,868 (2005); 71 Fed. Reg. 28,924 (2006). The petitions for review
were filed prior to the 60th day after promulgation of the relevant standards
and therefore timely under 30 U.S.C. 811(d).
STATEMENT OF THE ISSUES
1. Whether diesel particulate matter (DPM) presents sufficient risks of
material health impairment to justify the carbon-based exposure limits set
in 30 C.F.R. 57.5060(b) for underground metal and nonmetal mines.
2. Whether the Mine Safety and Health Administration (MSHA) reasonably
concluded that compliance with the exposure limits is technologically
feasible for the underground metal and nonmetal mining industry as a whole.
3. Whether MSHA reasonably provided medical evaluation and transfer rights
to miners unable to wear respirators, fully complied with notice and comment
requirements, and properly rejected industry's reliance on the Data Quality
Act.
STATUTES AND REGULATIONS
The Mine Act provision for safety and health standards, 30 U.S.C. 811,
and the 2001 DPM standard, as amended in 2005 and 2006, 30 C.F.R.
57.5060-57.5075, are included in the Statutory and Regulatory Addendum to
this brief.
Back to Top
STATEMENT OF THE CASE
A.
Nature of the case and course of proceedings
These consolidated cases challenge three successive health rules that,
together, regulate DPM exposure in underground metal and nonmetal mines. In
the 2001 rule, MSHA determined that exposure to DPM creates a significant
risk of lung cancer and other adverse health effects and that it was
feasible for industry to take steps to limit DPM exposure. Among other
things, the 2001 rule set an interim limit of 400 micrograms of total carbon
(TC), equivalent to 500 micrograms of DPM, that operators had to meet after
July 19, 2002. 66 Fed. Reg. 5907. The 2001 rule set a final limit of 160
micrograms of TC, equivalent to 200 micrograms of DPM, to be effective
January 20, 2006. Ibid.
Industry petitioners challenged the 2001 rule in Nos. 01-1046, 01-1124, and
01-1146, and the United Steelworkers (now the United Steel, Paper, Forestry
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union) intervened to defend the rule. At the request of the
parties, this Court held the cases in abeyance while the parties pursued
settlement. B:ACTV-11. Pursuant to a July 2002 partial settlement, 67 Fed.
Reg. 47,296, 47,298 (July 18, 2002), MSHA proposed revisions to the 2001
rule. 68 Fed. Reg. 48,668 (Aug. 14, 2003). In June 2005, MSHA promulgated
a final rule that, consistent with that settlement, changes the interim 400
microgram TC limit to the equivalent 308 micrograms of elemental carbon
(EC), allows operators to use respirators if engineering controls do not
reduce DPM to required limits, requires MSHA to consider economic as well as
technological feasibility in determining whether an operator qualifies for
an extension of time to meet the final DPM limit, and deletes a control plan
requirement in the 2001 rule. 70 Fed. Reg. 32,868 (June 6, 2005). Industry
groups are challenging the 2005 rule in Nos. 05-1255, 05-1291, 05-1296,
05-1312, and 05-1314.
Finally, a May 2006 rule retains the final 160 microgram TC limit set in
2001 but extends its effective date to May 20, 2008. 71 Fed. Reg. 28,924
(May 18, 2006). The 2006 rule also retains the 2005 rule's 308 EC limit as
a final limit effective May 20, 2006, lowers that limit to a 350 TC final
limit effective January 20, 2007, and requires operators to provide medical
evaluation and transfer rights to miners who have to wear respirators.
Id. at 29,012. Industry groups are challenging the May 2006 rule in Nos.
06-1184, 06-1194, 06-1204, 06-1205, 06-1223, and 06-1225. On August 15,
2006, this Court denied an industry request to stay the 160 and 350 limits
and medical evaluation and transfer provisions and ordered expedited
briefing.
Back to Top
B.
Statement of Facts
1.
MSHA's diesel regulations
In 1988, an advisory committee recommended that MSHA regulate both the
gaseous and particulate components of diesel exhaust based on the
committee's concern that diesel exhaust represents a probable risk of
causing human lung cancer. See 57 Fed. Reg. 500 (Jan. 6, 1992). In 1992,
MSHA asked for comments on DPM's health effects, sampling methods, and the
feasibility of DPM limits for the entire mining industry. 57 Fed. Reg.
501-503. After receiving comments, MSHA proposed separate rules for
underground coal mines and underground metal and nonmetal mines. 63 Fed.
Reg. 58,104 (Oct. 29, 1998); 63 Fed. Reg. 17,492 (Apr. 9, 1998). MSHA
proposed requiring coal mines to install and maintain filters, rather than
meet a DPM limit, because MSHA was concerned that coal dust could be
mistaken for DPM under methods used to measure DPM. 63 Fed. Reg. 17,498.
MSHA proposed requiring underground metal and nonmetal mines to meet a DPM
limit, rather than install and maintain filters as required in underground
coal mines. 63 Fed. Reg. 58,117, 58,125.
In January 2001, MSHA issued final rules for the underground coal and
metal/nonmetal sectors. 66 Fed. Reg. 5526 (Jan. 19, 2001); 66 Fed. Reg.
5706 (Jan. 19, 2001). The coal rule, which was not challenged and has been
in effect beginning in May 2001, relies on the same risk assessment as the
metal/nonmetal rule. Id. at 5561. The coal rule requires operators
to limit emissions from their engines, which they may do through filters or
newer, cleaner engines. Id. at 5526-5527. MSHA explained that such
a standard was not appropriate for the metal/nonmetal industry because it
would limit operators' flexibility and because MSHA lacked information on
emission rates of engines in underground metal/nonmetal mines. Id.
at 5589.
Back to Top
2.
Issues in the metal/nonmetal rulemakings
Throughout the metal/nonmetal rulemakings, MSHA has recognized and
addressed three fundamental issues: need for the rule, MSHA's ability to
measure DPM, and industry's ability to comply with the rule's requirements.
66 Fed. Reg. 5708. An additional, ancillary issue concerns respiratory
protection for miners. 71 Fed. Reg. 28,986; 70 Fed. Reg. 32,956. MSHA
initially resolved those issues based on the 2001 rulemaking record. After
the 2001 rule was challenged, and after partially successful settlement
discussions led to further rulemaking, it incorporated that record into the
2005 rulemaking record, and incorporated the 2001 and 2005 rulemaking
records into the 2006 rulemaking record. 71 Fed. Reg. 28,981; 70 Fed. Reg.
32,870. MSHA finally resolved those issues as follows:
a. Need for the rule: DPM's cancer risk
In promulgating the 2001 rule, MSHA determined from its samples in 27
underground metal and nonmetal mines, 66 Fed. Reg. 5756-5758, that
underground miners were exposed to DPM levels up to 200 times higher than in
the most heavily polluted urban areas and up to 10 times higher than the
most heavily exposed workers in other occupational groups. Id. at
5709, 5764; see id. at 5763 (Figure). Based on a peer-reviewed
analysis of numerous studies, id. at 5842, MSHA then determined that
DPM exposure causes acute health effects such as eye irritation and
respiratory ailments, chronic effects such as premature death from heart and
respiratory problems, and an increased risk of lung cancer. Id. at
5764-5811, 5854-5855. It further noted that scientific organizations and
governmental agencies, including the National Institute for Occupational
Safety and Health (NIOSH), the International Agency for Research on Cancer (IARC),
California's EPA, and the German government, have also concluded that DPM is
a probable human carcinogen or comparable category. Id. at 5840.
In analyzing the significance of the health risks, MSHA focused on lung
cancer, because MSHA was better able to quantify that risk. 66 Fed. Reg.
5848. Based on the best available studies involving miners and on MSHA's
observed levels of DPM in underground metal and nonmetal mines, MSHA
concluded that over a 45-year working life, see 30 U.S.C. 811(a)(6)(A),
miners exposed to DPM in such mines had between 2.4 times and 16.2 times the
risk of lung cancer as unexposed miners. 66 Fed. Reg. 5848-5849, 5852.
MSHA considered even the lowest estimate -- a doubling of a miner's risk --
clearly to be significant. Ibid.
MSHA also determined that the DPM rule would decrease that risk.
Relying on studies that had identified exposure-response relationships in
underground miners, MSHA estimated the excess risk of lung cancer at the
average observed level in underground metal and nonmetal mines (808
micrograms of DPM per cubic meter of air) and at the reduced levels required
by the 2001 rule (an interim limit corresponding to 500 micrograms of DPM,
and a final limit corresponding to 200 micrograms of DPM). 66 Fed. Reg.
5852. It concluded that the rule's lowest limit would significantly reduce
the observed risk. Id. at 5853 (table), 5854; see also Doc. 618 at
21-28. MSHA recognized that miners still have an excess risk of lung cancer
even at the lowest limit set by the DPM rule, but determined that a lower
limit was not feasible for industry. 66 Fed. Reg. 5854.
In the 2005 rule, MSHA concluded that more recent studies provided
additional support for its 2001 risk assessment. 70 Fed. Reg.
32,900-32,915. It also noted that in 2002 the National Toxicology Program
of the National Institutes of Health and the United States Environmental
Protection Agency (EPA) had designated diesel exhaust as a likely human
carcinogen. Id. at 32,911.
In the 2006 rule, MSHA relied on the 2001 risk assessment as updated in
2005. 71 Fed. Reg. 28,926-28,933. In particular, MSHA concluded that, even
though DPM exposure levels have fallen since 2001, 2005 exposure levels
still presented a significant risk of material adverse health effects to
exposed miners. Id. at 28,933.
Back to Top
b. How to measure DPM
DPM consists of a core of elemental carbon (EC), adsorbed organic carbons,
and sulfates. 66 Fed. Reg. 5716 (Figure II-1); see also National
Petrochem. & Refiners Ass'n v. EPA, 287 F.3d 1130, 1135 (D.C.
Cir. 2002). In 2001, MSHA determined that the only way to measure DPM
accurately for compliance purposes was to measure, as a surrogate for DPM,
the carbon portions of DPM (either EC or TC (EC plus adsorbed organic
carbons)), using the NIOSH 5040 method. 66 Fed. Reg. 5718-5722. MSHA chose
TC, based on evidence that TC is consistently 80-85% of DPM. Id. at
5719, 5726. Using the lower, 80% figure, MSHA thus required operators to
meet an interim limit of 400 micrograms of TC (corresponding to 500
micrograms of DPM) and a final limit of 160 micrograms of TC (corresponding
to 200 micrograms of DPM). Id. at 5706, 5726. MSHA recognized that
the organic carbon portion of a TC sample may include non-DPM
"interferences," such as oil mist and cigarette smoke. Id. at 5719,
5729. MSHA concluded that it could address interferences by not sampling
too close to the source of interference. Id. at 5729, 5730.
MSHA recognized that EC is not subject to those interferences and that NIOSH
had recommended EC rather than TC as a DPM surrogate. 66 Fed. Reg. 5712,
5726. MSHA was concerned, however, that the ratio of EC to TC varied
depending on a diesel engine's duty cycle, and which DPM controls were used;
in fact, some data showed that the EC to TC ratio could range from 8 to 81%.
Ibid. Because MSHA did not "at this time" know the ratio between EC
and DPM, MSHA decided to use TC rather than EC as the surrogate for DPM.
Id. at 5712.
After industry groups sued to overturn the 2001 rule, MSHA, industry, and
the Steelworkers agreed to assess the interference problem through a 31-Mine
Study. 68 Fed. Reg. 48,670; B:BKG-55. Using a TC analysis, MSHA voided 61
of 464 samples because of interferences. B:BKG-55 at 16. In light of that
experience, MSHA concluded that it had no reasonable method of sampling TC
to determine DPM levels where oil mist or tobacco smoke was present. Id.
at 65, 74.
Back to Top
The 31-Mine Study also led MSHA to conclude, as had industry, that the ratio
of EC to TC is sufficiently stable for MSHA to use EC as a surrogate for DPM.
See B:BKG-54-F at 4, 17 (industry expert's conclusion that EC was about 75%
of TC for over 90% of the valid samples in the 31-Mine Study, and on average
77% of TC). MSHA therefore agreed in the July 2002 partial settlement to
propose a rule changing the surrogate from TC to EC. 67 Fed. Reg. 47,298.
As requested by commenters, including operators, B:COMM-07 at 2; B:COMM-04
at 2; B:COMM-05 at 1-2, MSHA proposed a change only for the 2001 rule's
interim limit, which had been in effect since July 20, 2002, to give MSHA an
opportunity to gather more information for a final limit. 68 Fed. Reg.
48,668.
In the 2005 rule, MSHA changed the 400 microgram TC interim limit to a 308
microgram EC limit, using a conversion factor of 1.3 (400 = 1.3 x 308). 70
Fed. Reg. 32,944. The 308 limit is based on evidence from the 31-Mine
Study, supported by NIOSH and industry, that EC on average is 77% of TC (400
x .77 = 308). Id. at 32,944-32,945; see, e.g., B:COMM-07 at
4; B:Comm-08 at 9; B:COMM-11 at 11, 14; B:COMM-35 at 1; B:COMM-36 at 2;
B:COMM-38 at 4. MSHA recognized that the EC:TC ratio can vary considerably
in specific cases, but concluded that a 308 EC limit was appropriate because
it was as protective of miners as the 400 TC limit and was feasible. 70
Fed. Reg. 32,899,; see also id. at 32,944 (EC measurement imposes
fewer sampling restrictions and is inherently more accurate); id. at
32,876 (results of MSHA's 2002 and 2003 baseline sampling of all underground
metal and nonmetal mines, while not controlling for possible interferences,
showed a 93.6% concurrence between an EC sample x 1.3 and a TC sample).
After the 2005 rule, MSHA confirmed from enforcement samples that 1.3 was
the appropriate conversion factor for the interim limit. 70 Fed. Reg.
53,287. MSHA questioned whether 1.3 was appropriate for a lower final limit
because the types of controls needed to meet the lower limits could alter
the EC:TC ratio. Ibid. MSHA requested comments on an appropriate EC
final limit, and stated its intent to propose a separate rulemaking on an EC
to TC conversion factor for the final limit. Ibid.
After receiving a range of comments, MSHA decided in May 2006 that the
record lacks sufficient evidence for a final EC limit, other than at the 308
limit. 71 Fed. Reg. 28,982-28,983. Accordingly, the 2006 rule set the
final limits at 308 micrograms of EC, effective May 18, 2006; 350 micrograms
of TC, effective January 20, 2007; and 160 micrograms of TC (the same as the
final limit set in 2001), effective May 20, 2008 (two years, four months
later than the 2001 rule's effective date). Id. at 29,012. MSHA
stated its intent to convert the TC limits to EC limits before January 20,
2007, and to use the 1.3 conversion factor for the 350 TC limit if the
rulemaking is not complete by that date. Id. at 28,983.
Back to Top
c. Feasibility of compliance
i. Technological feasibility
Issues regarding technological feasibility have been a central focus
throughout this rulemaking history. In 2001, MSHA identified a number of
actions operators could take to reduce DPM levels in their mines. To meet
the interim limit, it determined that operators could optimally use DPM
exhaust filters, environmental cabs, and ventilation. To meet the final
limit, it determined that operators could optimally use more filters and
ventilation and newer, less polluting engines. 66 Fed. Reg. 5888,
5894-5895. Other controls identified by the agency included using low
sulfur fuels, training miners on DPM controls, and maintaining equipment.
Id. at 5873-5879. MSHA relied on a peer-reviewed computer program
called the Estimator to predict that reducing DPM exposures to the
prescribed limits by the effective dates could occur with the various
controls. Id. at 5863, 5888. The most contentious issue concerned
the efficacy of ceramic filters. MSHA rejected operator arguments that
ceramic filters will not work in underground mining based on evidence that
they do work in Germany, England, and Scandinavia. Id. at 5740-5744.
To assist operators in implementing the technology, the 2001 rule provided
one and a half years before the effective date of the 400 TC limit and an
additional three and a half years before the effective date of the 160 TC
limit, during which periods compliance assistance would be available. 66
Fed Reg. 5860. The rule also provided that an individual operator could
have a single extension of up to two more years to reach the 160 limit based
on technological infeasibility. Id. at 5861.
Back to Top
In attempting to settle challenges to the 2001 rule, MSHA provided an
additional year of extensive compliance assistance before issuing citations
for violations of the 400 limit beginning July 20, 2003. 70 Fed. Reg.
32,873; 67 Fed. Reg. 47,298. As part of that assistance, MSHA took baseline
samples between October 2002 and October 2003 of each mine subject to the
rule and found no samples exceeding the 400 limit in 63% of the mines. 70
Fed. Reg. 32,879. MSHA also held meetings throughout the country, provided
information and in-mine compliance assistance, and worked with a partnership
of industry, labor and NIOSH, which was also providing information and
assistance. Id. at 32,886-32,887, 32,916-32,917. In May 2002, MSHA
and NIOSH also alerted industry to a potential nitrogen dioxide (NO2)
problem when one type of filter is used under marginal ventilation
conditions and developed a web-based, comprehensive filter selection guide
with step-by-step assistance to select appropriate filters. Id.
at 32,922-32,923; see
www.msha.gov/nioshmnmfilterselectionguide/dpmfilterguide.htm.
In the June 2005 rule, MSHA again determined that the interim limit, now
expressed as 308 EC, is technologically feasible. 70 Fed. Reg. 32,915. In
addition to the 2001 rulemaking record, MSHA relied on its compliance
assistance and enforcement experience, and on a NIOSH study, first reported
in 2004, that showed ceramic filters work in underground mines in the United
States, and NIOSH's confirmation of MSHA's determination that operators can
work through filter implementation issues. Id. at 32,916, 32,927,
32,933; see also 71 Fed. Reg. 28,961 (82% of enforcement samples between
November 2003 and January 2006 were below the interim limit). MSHA also
concluded that a newly available innovation, biodiesel fuel, is a feasible
DPM control based on in-mine testing. 70 Fed. Reg. 32,937.
Taking a cautious approach in the 2005 rule, however, MSHA expressed concern
that some mines could have difficulties implementing the controls,
particularly filters. 70 Fed. Reg. 32,915. Accordingly, MSHA modified the
2001 rule to permit operators to require miners to use respirators if
feasible engineering and administrative controls do not reduce DPM to
required levels. Id. at 32,915-32,916. MSHA also modified the 2001
rule to permit renewable extensions of time of up to one year per renewal to
meet the final limit, based on either technological or economic
infeasibility, rather than a single extension of up to two years based only
on technological feasibility concerns. Id. at 32,951. Acknowledging
that it lacked sufficient data to reduce the interim limit "at this time,"
MSHA did not lower the limit in that rulemaking. Id. at 32,916.
In September 2005, MSHA proposed to phase in the 160 final limit set by the
2001 rule to become effective January 19, 2006, through five annual
reductions between January 2007 and January 2011. 70 Fed. Reg. 53,293.
MSHA proposed this approach because it believed that operators were having
difficulty implementing filters, that mines had not replaced engines as
quickly as MSHA anticipated in 2001, and that logistical problems existed in
distributing biodiesel fuels to remote mining locations. Id. at
53,283-53,284. MSHA requested comments on those issues, id. at
53,283-53,287, and also "on whether five years is the correct timeframe,"
and whether an alternative to the annual reductions should "include an
approach such as one or two reductions." Id. at 53,288.
In the May 2006 rule, MSHA, upon a review of the cumulative rulemaking
record, chose a three-reduction approach, and accelerated the effective date
for the final limit from what had been proposed. It continued the 308 EC
(400 TC equivalent) limit already in effect and kept the first proposed
phase-in, a 350 TC limit effective in January 2007, to provide a "necessary
incentive" for operators to continue to implement DPM controls and not to
delay efforts to meet the final 160 limit. 71 Fed. Reg. 28,961. MSHA
determined that the limit is feasible because 78% of MSHA enforcement
samples between November 2003 and January 2006, targeting miners with the
highest levels of DPM exposure, are already below that limit. Ibid.
Back to Top
In requiring operators to meet the final 160 TC limit by May 20, 2008,
rather than by May 20, 2011, as proposed (three years faster than the 2005
proposal but two years and four months later than the 2001 rule's effective
date), 71 Fed. Reg. 29,012, MSHA explained that it had "more definitive
information on availability of alternative fuels and the implementation
issues" and accordingly could not "justify further delays" in implementing
the 160 limit beyond May 2008. Id. at 28,979. In particular, MSHA
relied on comments indicating greater availability of biodiesel fuel, recent
information on 2007 model year on-road engines that have DPM emissions 90%
lower than existing EPA limits, and developments in disposable filter
technologies. Id. at 28,935-28,939. MSHA explained that "these
technologies are not subject to many of the difficult implementation issues
that have slowed the adoption of some DPM controls." Id. at 28,944.
MSHA also noted that DPM filters are commercially available for all
horsepower engines typically found in metal and non-metal mines, id.
at 28,947, yet few mines used filters to control DPM exposures, id.
at 28,964. Since "[s]ome operators simply removed the controls instead of
working through these implementation issues," id. at 28,938, filters
remained an underused control despite recent advances in the technology.
ii. Economic feasibility
In 2001, MSHA determined that the annualized industry-wide cost of the DPM
rule was $25.1 million. 66 Fed. Reg. 5889. Because this cost was less than
1% of the affected mines' $3.726 billion in 1998 gross revenue, MSHA
determined that the rule was economically feasible. Id. at 5887;
Doc. 618 at 108.
In 2005, MSHA concluded that the 2005 revisions to the 2001 rule would
result in a net savings to industry. 70 Fed. Reg. 32,939. In the 2006 rule,
MSHA adjusted its cost estimates to reflect, among other things, possible
increased costs to industry of evaluating and implementing controls, and
concluded that the industry-wide cost of getting from the interim limit
currently in effect to the 160 final limit by May 20, 2008, was $8,454,853.
71 Fed. Reg. 28,958, 28,997. Because that cost is only 0.175% of industry's
$4,836,245,377 in revenue for 2004, MSHA determined that the 2006 rule was
economically feasible. Id. at 28,958.
Back to Top
d. Medical evaluation and transfer
The 2001 rule prohibited the use of respirators to achieve compliance except
when MSHA approved their use based on a mine's technological infeasibility
of meeting the final limit or during temporary inspection, maintenance, and
repair work. 66 Fed. Reg. 5707, 5857-5858. MSHA recognized that the
well-established "hierarchy of controls" concept permits the use of
respirators to achieve compliance when engineering controls are infeasible,
but concluded that, except where the rule allowed respirators, there would
be no need for them. Id. at 5862. The rule did not require
operators to provide medical examinations and transfer rights to miners
unable to wear respirators, although 30 U.S.C. 811(a)(7) requires such
protection "[w]here appropriate."
After operators challenged the 2001 rule, MSHA agreed to apply the
"hierarchy of controls" concept to permit respirators when engineering and
work practice controls were infeasible. 70 Fed. Reg. 32,868; 67 Fed. Reg.
47,298. MSHA decided that requiring medical evaluation and removal was
inappropriate for the 2005 rulemaking because operators were voluntarily
implementing such provisions and the use of respirators would be limited
under the interim limit established in 2005. 70 Fed. Reg. 32,957-32,958.
After the Steelworkers challenged the 2005 rule's failure to require medical
evaluation and transfer in No. 05-1197, MSHA sought comments on whether it
should adopt specific provisions to impose such requirements. 70 Fed. Reg.
53,289. The 2006 rule requires medical evaluation and transfer because MSHA
estimated that more miners could be required to wear respirators for longer
periods when the final limit set by the 2006 rule goes into effect. 71 Fed.
Reg. 28,990. MSHA also explained that the 2006 rulemaking record
established a need for medical evaluations because wearing a respirator
places a physiological burden on the person wearing it that could cause
illness, injury, or even death, depending on the person's medical
condition. Id. at 28,986. MSHA required transfer rights so that a
miner would give truthful information during a medical examination rather
that false information to protect his or her job. Id. at 28,990.
Back to Top
SUMMARY OF ARGUMENT
A.
MSHA met its burden, under National Mining Association v. MSHA,
116 F.3d 520, 527-528 (D.C. Cir. 1997), of establishing, "at most," a
significant risk associated with having no DPM standard at all. MSHA
determined from in-mine sampling that underground metal and nonmetal miners
were exposed to DPM levels up to 200 times higher than the most heavily
polluted urban areas and up to 10 times higher than the most heavily exposed
workers in other occupational groups. MSHA then determined from an
extensive body of scientific evidence that DPM presents a material risk of
lung cancer and other adverse health effects that is far higher than the 1
in 1000 risk that courts consider significant.
Because MSHA found a significant risk at the lowest 160 limit set by the
rules -- a limit based on feasibility -- MSHA was not required to establish
a "dose-response" relationship between DPM and adverse health effects at
various levels of exposure. Like the EPA, MSHA may regulate DPM without
waiting for research on whether clean engines create a nanoparticle health
risk. Industry's concern with NO2 is a filter-selection issue
resolvable by increased ventilation or use of a different filter. MSHA was
not required to accept an industry-retained expert's inability to find a
significant risk from DPM because MSHA's interpretation of the data is
supported by a body of reputable scientific thought that includes NIOSH,
IARC, EPA, Germany, California's EPA, and NIH.
B. MSHA reasonably chose carbon-based limits as a surrogate for DPM because
the only acceptable method that MSHA found for measuring DPM for compliance
purposes, the NIOSH 5040 method, measures only the carbon parts of DPM.
Using carbon as a surrogate was thus a rational choice and does not mean
that MSHA is regulating carbon and not DPM, a probable human carcinogen. As
in National Petrochemical & Refiners Association v. EPA, 287
F.3d 1130, 1142 (D.C. Cir. 2002), MSHA's ability to measure DPM accurately
concerns only the agency's power to find a violation and is not a basis to
upset the DPM rules. Because MSHA intends to follow an enforcement strategy
for the 350 TC limit that uses TC and EC measurements and intends further
rulemaking to convert the final 160 TC limit to an EC limit before the 160
limit's May 2008 effective date, this Court need not decide in this case
whether TC or EC is the preferable surrogate for DPM. If the Court reaches
that issue, it should conclude that MSHA can reasonably rely on either TC or
EC.
Back to Top
II.
A.
MSHA established that the DPM limits are technologically feasible by
proving a reasonable possibility, based on credible sources of information,
that a typical firm will be able to develop and install controls to meet the
limits in most of its operations. Studies in underground metal and nonmetal
mines have shown that ceramic filters, while not problem-free, can reduce
exposures to the 160 TC limit, and MSHA continues to assist operators in
properly selecting, installing, and maintaining filters. Cleaner engines can
also meet the 160 TC limit, as reasonably shown by MSHA's Estimator program,
and industry does not dispute MSHA's conclusion that buying a new engine can
pay for itself in less than three years because of fuel efficiency.
Biodiesel fuel is also effective in reducing DPM, and operators' ability to
use ventilation and environmental cabs is not as limited as industry
argues. MSHA case files show that some mines are already meeting the 160 TC
limit and that other mines can do so. The availability of respirators and
renewable extensions and operators' ability to raise feasibility issues in
enforcement proceedings also support feasibility.
B.
MSHA reasonably predicts that industry can meet the deadlines set by the
2006 rule. Industry can meet the January 2007 deadline for the 350 limit
because 78% of MSHA enforcement samples between November 2003 and January
2006 were already below that limit. The record also shows that industry can
meet the May 2008 deadline for the 160 limit. That record shows that MSHA
prudently reexamined its 2001 feasibility determination after industry
challenged the 2001 rule and adjusted its views in light of new evidence.
In 2005, MSHA proposed phasing in the 160 limit in five steps between 2007
and 2011, but based on new information, MSHA determined in 2006 that
biodiesel was more readily available and easier to use than MSHA had
predicted, that a disposable filter technology with few implementation
difficulties could be used in underground metal and nonmetal mines, and that
2007 on-road engines, which reduce DPM by 90% from current EPA limits, would
have built-in filters and could be used in mining. That information, along
with other expected advances in DPM control technology and gains expected
once industry overcomes its reluctance to try filters or work through
implementation issues, supports MSHA's conclusion that May 20, 2008 is a
realistic effective date for the final 160 TC limit and that it could not
justify a delay in that limit beyond that date.
Back to Top
III.
A. MSHA reasonably included a provision for medical evaluation and
transfer to protect miners who cannot safely wear respirators. The Mine Act
specifically authorizes such a provision, and the record supports MSHA's
conclusion that medical evaluation will prevent miners who are physically
unable to wear a respirator from doing so, and transfer rights will
encourage miners to give truthful information during an examination rather
than false information to protect their jobs. Industry's concerns with
respirators are meritless because they supported respirators in 2005,
successfully gave medical evaluations, have no basis for predicting that
large numbers of miners will have to wear respirators, and are unlikely to
be affected by the transfer provisions, which will likely apply to fewer
than five miners industry-wide at any one time.
B. MSHA complied with notice and comment requirements in promulgating
the medical evaluation and transfer provisions because MSHA's proposal
expressly asked for comments on the issue and set out the text of the
provision it was considering. MSHA's choice of a May 2008 effective date
for the 160 limit is a logical outgrowth of the proposed five step phase-in
between January 2007 and January 2011 because MSHA gave notice that it was
considering a range of options and the May 2008 date is within the range
available to MSHA and advocated in comments. MSHA's reliance on new
information concerning disposable filters and low-emission engines also
satisfies notice-and-comment requirements. MSHA's proposal asked for
information on the types and sizes of filters that industry had evaluated,
and disposable filters were one of those types. MSHA also asked for
information on industry's use of low-emission engines, which made it
perfectly predictable that MSHA could obtain new information about those
engines during the rulemaking. Industry also shows no harm from MSHA's use
of new engine information.
C. Industry lacks standing to argue that MSHA failed to comply with
the Data Quality Act. That Act directs the Office of Management and Budget
to issue guidelines to agencies concerning information that agencies
maintain and disseminate. Because the Act creates no legal rights in third
parties, industry lacks standing to challenge an agency's failure to comply
with it, as in Salt Institute v. Leavitt, 440 F.3d 156, 159
(4th Cir. 2006). Permitting judicial review would interfere with agencies'
ability to promulgate reasonable and necessary health and safety standards
under their statutory mandates.
Back to Top
ARGUMENT
This Court reviews Mine Act rules under the "arbitrary and capricious"
standard of review. National Mining Ass'n v. MSHA, 116 F.3d
520, 527 (D.C. Cir. 1997). Under that standard, the Court presumes the
validity of agency action that has a rational basis. American Trucking
Ass'ns v. EPA, 283 F.3d 355, 362 (D.C. Cir. 2002). The Court
does not judge the merits of competing expert views, and will uphold the
agency's choice between experts if it is reasonable and supported by the
record, even if the record may also support other conclusions. Ibid.
That limited review is appropriate because MSHA's rules involve "policy
judgments in areas where specific factual findings cannot always
realistically be made." S. Rep. No. 95-181, at 21 (1977).
I. MSHA REASONABLY DETERMINED THAT DPM PRESENTS SIGNIFICANT RISKS OF
MATERIAL HEALTH IMPAIRMENT SUFFICIENT TO JUSTIFY THE CARBON-BASED EXPOSURE
LIMITS SET IN 30 C.F.R. 57.5060(b) FOR UNDERGROUND METAL AND NONMETAL MINES
A.
The rules address a significant risk of material health impairment
from DPM
In promulgating
standards dealing with toxic materials or harmful physical agents, the
Secretary must "set standards which most adequately assure on the basis of
the best available evidence that no miner will suffer material impairment of
health or functional capacity even if such miner has regular exposure to the
hazards dealt with by such standard for the period of his working life." 30
U.S.C. 811(a)(6)(A). This Court has questioned whether the Secretary must
find a significant risk of material harm and has concluded that when
existing Mine Act standards do not address a health or safety issue, the
Secretary is required, "[a]t most," to identify a significant risk
associated with having no standard at all. National Mining, 116 F.3d
at 527-528. Once that risk is shown, the appropriate standard to address
the risk "is a technical decision entrusted to the expertise of the agency
rather than the conjecture of the Court." Id. at 528.
Back to Top
Before 2001, MSHA did
not regulate DPM, the non-gaseous part of diesel engine emissions. See 57
Fed. Reg. 500 (Jan. 6, 1992). Thus, the National Mining standard
applies.
MSHA's 2001 rule
easily satisfies that standard, which "at most" requires a finding of
significant risk and then gives the agency broad discretion to set the
appropriate limit. Following an advisory committee recommendation that DPM
should be regulated separately from the gaseous elements of diesel exhaust,
MSHA reasonably chose not to treat the agency's general air contaminants
standard as a sufficient regulation of DPM. See Jt. Br. 15 (contending
"pre-existing limits on diesel exhaust gases" makes DPM regulation
unnecessary); In re United Mine Workers, 190 F.3d 545, 547-548 (D.C.
Cir. 1999). Instead, MSHA reasonably determined that DPM posed a
significant risk of harm to underground miners and required regulation.
MSHA first determined
from its measurements of samples in 27 underground metal and nonmetal mines
that underground miners were exposed to DPM levels up to 200 times higher
than in the most heavily polluted urban areas and up to 10 times higher than
the most heavily exposed workers in other occupational groups. 66 Fed. Reg.
5756-5758, 5764. MSHA therefore reasonably determined that the risks to
underground miners from DPM are greater than the risks to employees in
surface mines or in other industries where DPM exposures are far lower. Id.
at 5708, 5759-5760; see Jt. Br. 21.
Back to Top
MSHA then analyzed an
extensive body of current scientific literature on the risk of DPM exposure
-- apart from possible risks from gaseous components of diesel exhaust, 66
Fed. Reg. 5734 -- and concluded that DPM presents a material risk of lung
cancer and other adverse health effects even at the lowest limit (160 TC)
set by the 2001 rule, a limit based on feasibility. Id. at
5848-5849. MSHA further concluded that the risk of lung cancer death was
between 83 and 830 per 1000 miners exposed to observed DPM levels at
underground metal and nonmetal miners over a 45-year working life. Id.
at 5854; see also Doc. 618 at 21-28. Because that risk is well above the
"one in a thousand" odds of a fatality that can be considered significant
when dealing with a toxic substance, Industrial Union Dep't v.
American Petroleum Institute, 448 U.S. 607, 556 (1980) (plurality);
International Union, UAW v. Pendergrass, 878 F.2d 389, 392 (D.C.
Cir. 1989), MSHA reasonably concluded that the risk was significant.
Because MSHA found a
significant risk even at the lowest 160 TC limit set by the rules based on
feasibility constraints, and those rules were regulating DPM for the first
time, MSHA was not required, contrary to industry's argument, to establish a
"dose-response" relationship between DPM and adverse health effects at
various levels of exposure. See Jt. Br. 21-22. Instead, MSHA only had to
establish a significant risk of having no rule at all. National Mining,
116 F.3d at 527-528; see also 66 Fed. Reg. 5842 (explaining that under the
OSH Act, see American Textile Mfgrs. Inst. v. Donovan, 452
U.S. 490, 505 n.25 (1981); Jt. Br. 22, dose-response relationship is a
sufficient but not necessary way to show significant risk). MSHA also has
evidence of an exposure-response relationship. 71 Fed. Reg. 28,928; 66 Fed.
Reg. 5842; see also Doc. 507 at 2 (NIOSH conclusion that relative risks of
cancer in a German study of underground nonmetal miners are correlated with
intensity of exposure); B:BKG-09 at 5-87 (EPA's conclusion that the
magnitude of pathological changes in the respiratory tract "is determined by
the dose delivered to the respiratory tract and is attributable to both the
carbon core and the adsorbed organic materials").
MSHA's finding of a
significant risk is also not undermined by MSHA's recognition, in 2001, that
further research was needed to determine whether newer, cleaner engines
create a health risk by generating more nanoparticles than older engines and
whether filters were the only effective way to remove nanoparticles. 66
Fed. Reg. 5735-5738; see Jt. Br. 15-16, 22. Like the EPA, MSHA may regulate
one pollutant without first "determining how that regulation would affect
the levels of all other pollutants." American Trucking, 283 F.3d at
370. Prohibiting MSHA from regulating DPM because the nanoparticle issue
needs further research would not only "hamstring the Agency," ibid.,
but would call into question the EPA's rules mandating newer, cleaner
engines, which this Court has upheld. National Petrochem. & Refiners
Ass'n v. EPA, 287 F.3d 1130, 1134 (D.C. Cir. 2002).
MSHA's finding of a
significant risk is also not undermined by the increase in NO2
during a NIOSH test of a filter at an industry mine. Jt. Br. 22. As MSHA
explained, the increase occurred because the mine used a type of filter
(platinum-coated, passively regenerating) that MSHA and NIOSH had warned
industry about, and the mine lacked sufficient ventilation. 70 Fed. Reg.
32,929; see B:GEN-8 (warning). Using other filters would avoid the problem,
B:COMM-13 at 6-7 (NIOSH), as would adequate ventilation. 70 Fed. Reg. 32,921
(discussing Kennecott's reported success, B:COMM-38 at 5, in managing NO2
through ventilation).
Finally, the inability
of an industry-retained expert to see that MSHA's rules address a
significant risk, Jt. Br. 20, does not undermine MSHA's contrary finding
because MSHA explained why it disagreed with this expert, 70 Fed. Reg.
32,910-32,914, and MSHA's interpretation of the data is "supported by a body
of reputable scientific thought." Industrial Union Dep't, 448 U.S. at
656 (plurality); see also American Trucking, 283 F.3d at 362;
Building & Constr. Trades Dep't v. Brock, 838 F.2d 1258,
1266-1267 (D.C. Cir. 1988). Peer reviewers stated that MSHA made "a
systematic and effective case for demonstrating the potential for material
impairment." B:BKG-56-A at 3. NIOSH agrees with MSHA that DPM presents a
significant risk even at the 160 TC level. Doc. 501 at 1; A:COMM-108 at 2.
IARC, EPA, Germany, California's EPA, and the National Toxicology Program of
the National Institutes of Health have also characterized DPM as at least
potentially carcinogenic. 70 Fed. Reg. 32,911; 66 Fed. Reg. 5840. The only
reasonable conclusion, as this Court recognized, is that DPM is "harmful to
the environment and human health." National Petrochem., 287 F.3d at
1134.
[1]
Back to Top
B.
MSHA reasonably chose carbon-based limits as surrogates for measuring DPM
exposures
MSHA explained when it
did its risk assessment in 2001 that it was regulating DPM, but setting
carbon-based limits as a surrogate for DPM, because MSHA could not measure
DPM directly for compliance purposes. 66 Fed. Reg. 5706, 5711-5712. That
approach is reasonable because the only acceptable method that MSHA found to
sample for compliance purposes, the NIOSH 5040 method, measures only the
carbon portions of DPM, i.e., the elemental carbon core (EC) and the
adsorbed carbons that, together with the elemental core, equals total carbon
(TC). Id. at 5718-5722 (MSHA discussion of available methods);
A:BKG-58 at 654 (industry experts recognize "growing agreement" that the
NIOSH 5040 method "is the most sensitive and specific method available" for
evaluating DPM exposures). Studies that MSHA relied on for its risk
assessment also used surrogates for DPM, including carbon-based surrogates.
See, e.g., 66 Fed. Reg. 5851 (discussing EC surrogate in Stayner and
Steenland studies and TC in Saverin study). At least two countries use
carbon-based surrogates for DPM. Id. at 5846 (EC limits for Germany);
B:COMM-13 at 32 (EC limit for Switzerland);
http://www.dieselnet.com/standards. TC and EC are also toxic materials or harmful physical agents in their own
right because each "contribute[s] to the adverse health effects of miners
caused by exposure to DPM." 71 Fed. Reg. 28,985; see also 70 Fed. Reg.
32,898; B:BKG-09 at 7-145 (EPA's conclusion that "both the particle core and
the associated organic compounds have demonstrated carcinogenic
properties").
Accordingly, there is
no merit to industry's argument that the DPM rules are "ultra vires" because
(a) they regulate TC and EC rather than DPM and (b) neither TC nor EC has
been shown to be "toxic materials" or "harmful physical agents" under 30
U.S.C. 811(a)(6)(A). Jt. Br. 14. Nor is there any merit to industry's
argument that oxides of nitrogen (NOx) are a surrogate that MSHA
can use in measuring DPM. Jt. Br. 15. Nitrous oxides are gases, not part
of DPM. See National Petrochem., 287 F.3d at 1134 (citing EPA's
separate limits for NO2 and DPM). MSHA's recognition that
"engine manufacturers" subject to the EPA rule can indirectly control DPM
emissions by controlling NOx emissions, 66 Fed. Reg. 5716; see Jt.
Br. 15, does not remotely suggest that NOx can be used to measure
DPM in a mine atmosphere. MSHA's only rationally available choice was to
decide between TC and EC as the appropriate surrogate for DPM.
In National
Petrochemical, this Court held that even if the EPA could not measure
DPM accurately, that "would not provide a basis" to upset the EPA rule
setting 2007 model-year diesel emission standards for engine manufacturers
because possible measurement error "'merely deprives the agency of the power
to find a violation of the standards, in enforcement proceedings.'"
287 F.3d at 1142 (citation omitted; court's emphasis). The same rationale
applies here. Industry's argument that MSHA cannot accurately measure DPM,
contrary to MSHA's belief that it can, means at most that MSHA may have
difficulty enforcing the DPM limits it has set. Those possibilities provide
no basis for invalidating the standards as beyond MSHA's power to regulate.
Back to Top
Moreover, National
Petrochemical recognized that "issues about the reliability of [DPM]
testing methods can be addressed at a later stage." 287 F.3d at 1142. That
rationale may apply here because, although a Mine Act health or safety
standard can be challenged only within a 60-day period after it is
promulgated, 30 U.S.C. 811(d), MSHA's expressed policy for enforcing the 350
TC limit (EC x 1.3) is set out only in the preamble, 71 Fed. Reg. 28,978,
and therefore is not a health or safety standard. See National Indus.
Sand Ass'n v. Marshall, 601 F.2d 689, 711-712 (3d Cir. 1979)
(premature to review preamble statement on how standard would apply). The
160 TC limit is part of the 2006 rule, but review of that limit may also be
premature because MSHA has stated its intent to change the limit to an EC
limit before the 160 limit becomes effective. Accordingly, the Court may
decide that issues concerning TC and EC are better reviewed later, when MSHA
attempts to enforce the 350 TC limit set by the 2006 rule or a future EC
limit corresponding to the 160 TC limit.
If the Court chooses
to address MSHA's choice of a surrogate, it should conclude that MSHA
reasonably selected EC as the surrogate for the 308 limit while keeping TC
as the surrogate for lower limits pending a rulemaking to convert the TC
limits to EC limits. As discussed above, MSHA has to use either TC or EC as
a surrogate for DPM because the only acceptable method of sampling for
compliance purposes, the NIOSH 5040 method, measures only TC and EC.
Moreover, MSHA's
choice of EC and TC surrogates in the 2006 rule is reasonable. The results
of the 31-Mine Study, NIOSH, and industry comments all support the 308 EC
limit that is currently in effect. See, e.g., B:BKG-54-F at 4
(operator's expert found that EC was on average 77% of TC in over 90% of
samples in 31-Mine Study); B:CORR-31 at 1 (NIOSH adheres to its view that TC
is 60-80% EC, based in part on two recently completed NIOSH studies);
B:COMM-11 at 11, 14 (NSSGA); B:COMM-35 at 1 (NMA); B:COMM-36 at 2 (Placer);
B:COMM-38 at 4 (Kennecott); B:COMM-40 at 8 (MARG). EC is also easier to
measure and more directly correlates with DPM than TC because a TC
measurement may include non-DPM interferences while DPM is the only source
for EC on samples taken from underground metal and nonmetal mines.
A:COMM-108 at 8 (NIOSH); 70 Fed. Reg. 32,871.
It makes no difference
that MSHA recognized some statistically significant variation in the EC to
TC ratios, Jt. Br. 17, 21. A similar issue was presented in United
Steelworkers v. Marshall, 647 F.2d 1189, 1259-1263 (D.C. Cir.
1980). There, OSHA adopted a standard that used air levels of lead as a
surrogate for regulating blood levels of lead, despite an admitted lack of
an exact correlation between air-lead and blood-lead measurements. Id.
at 1259. This Court upheld OSHA's reliance on a report that predicted a
70.7% correlation between the air and blood levels, despite evidence that
the correlation was less. Id. at 1261. The Court reasoned that in
an area of scientific uncertainty, OSHA has "broad discretion to form the
best possible solution," id. at 1259, and upheld OSHA's choice
because it was "within a 'zone of reasonableness.'" Id. at 1263
(citation omitted; court's emphasis).
That rationale applies
here. The correlation between EC and TC, at least at the 308 EC level, is
even stronger than the 70.7% correlation upheld in Steelworkers
because MSHA sampling shows a 93.6% correlation between TC measured directly
and TC measured by multiplying EC by 1.3, based on the assumption that EC is
about 77% of TC. 70 Fed. Reg. 32,876; see also id. at 53,287
(enforcement samples show that 1.3 is the most appropriate conversion
factor). Given MSHA's possible choices (EC or TC), and MSHA's wide
discretion, the choice of EC falls well within the zone of reasonableness.
TC, which is used for
the January 2007 and May 2008 limits, is also a reasonable surrogate for DPM
because TC is consistently 80-85% of DPM. 66 Fed. Reg. 5719; A:BKG-53 at 1.
The difficulty with TC, as MSHA has recognized throughout these rulemakings,
is that the organic (non-elemental) carbon portion of TC is prone to
interferences from non-DPM sources. MSHA reasonably believes that it can
account for possible interferences by not citing a sample that exceeds the
350 TC limit set to take effect on January 20, 2007, unless the sample's EC
measurement x 1.3 also exceeds the 350 limit. That belief is reasonable
because the 350 TC limit is close to the 400 TC limit, and industry agreed
that an EC x 1.3 check was appropriate at the 400 level. 67 Fed. Reg.
47,298. NIOSH has also stated that one of MSHA's concerns -- that ceramic
filters may affect the DPM:EC relationship, 70 Fed. Reg. 53,287 -- applies
only when the filters "dominate the overall ambient DPM concentrations."
A:COMM-108 at 8. Queenstake Mining, which no longer challenges the DPM
rules, also recommended using the conversion factor. A:COMM-113 at 4.
[2]
If necessary, MSHA
could also enforce the 160 TC limit set to take effect May 20, 2008, despite
industry assertions that MSHA admitted it cannot measure TC or convert it to
an EC limit at the lower limit. Jt. Br. 10, 16-17. MSHA admitted
only that TC is not a reliable surrogate for DPM when potential
interferences such as oil mist or tobacco smoke are present. 70 Fed. Reg.
32,871, 32,894. In practical terms, this means that MSHA can enforce the 160
TC limit by sampling miners not subject to interferences. See 71 Fed. Reg.
28,966 (MSHA voided 61 of 464 samples in 31-Mine Study because of
interferences). Alternatively, MSHA could try to calculate the amount of TC
attributable to interferences and cite only when a sample exceeds the 160 TC
limit, plus an error factor, plus an amount attributable to possible
interference. See Doc. 394 at 113 (article suggesting that an adjustment
can be made for the presence of nondiesel carbon sources); Doc. 284 at 3-4 (MSHA
tests measuring amount of organic carbon from cigarettes); Doc. 285 at 4-6 (MSHA
tests measuring amount of organic carbon from oil mist). Such limitations on
MSHA's enforcement are a reason MSHA intends to convert the 160 TC limit to
an EC limit before May 20, 2008; indeed, work on developing an appropriate
conversion factor at the lower limit is already underway and will be the
subject of later rulemaking. Possible difficulties enforcing the 160 TC
limit over a year and a half from now are not a reason for the Court to
conclude that MSHA cannot accurately measure DPM for enforcement purposes,
much less that the DPM standard itself is invalid ab initio.
Back to Top
II.
THE DPM EXPOSURE LIMITS ARE TECHNOLOGICALLY FEASIBLE
To establish
technological feasibility, MSHA "must prove 'a reasonable possibility that
the typical firm will be able to develop and install engineering and work
practice controls that can meet the PEL in most of its operations.'"
American Iron & Steel Inst. v. OSHA (AISI), 939 F.2d 975, 980
(D.C. Cir. 1991) (quoting Steelworkers, 647 F.2d at 1272); see S.
Rep. No. 95-181, at 21 (1977) (Mine Act, like the Occupational Safety and
Health Act construed in Steelworkers, is technology forcing). MSHA
can do so by "'pointing to technology that is either already in use or has
been conceived and is reasonably capable of experimental refinement and
distribution within the standard's deadlines.'" AISI, 939 F.2d at
980 (quoting Steelworkers, 647 F.2d at 1272). MSHA's obligation is
thus merely to "'identify the major steps for improvement'" without having
to provide "'detailed solutions to every engineering problem.'" National
Petrochem., 287 F.3d at 1136 (citation omitted).
Technological
feasibility does not require proof that all companies subject to a standard
can comply with it. Instead, MSHA "'can impose a standard which only the
most technologically advanced plants in an industry have been able to
achieve -- even if only in some of their operations some of the time.'"
AISI, 939 F.2d at 1002 (quoting Steelworkers, 647 F.2d at 1264).
Moreover, MSHA "need not prove feasibility with 'certainty,'" and this Court
will defer to MSHA's feasibility determinations if MSHA "makes reasonable
predictions based on 'credible sources of information' (e.g., data
from existing plants and expert testimony)." Id. at 980 (quoting
Steelworkers, 647 F.2d at 1265, 1266).
MSHA fully met those
requirements by (A) identifying controls that can meet the lowest, 160 TC,
limit set by the DPM rules (as well as the interim 308 EC and 350 TC limits)
and (B) making a reasonable prediction based on the entire record that
industry as a whole will be able to meet the 160 limit by May 2008 as well
as the 350 limit effective in January 2007. Accordingly, industry's
tendentious arguments that MSHA failed to engage in "reasoned decisionmaking"
in its findings of technological feasibility must fail. Jt. Br. 25.
Back to Top
A.
Controls exist to meet the 160 TC limit
1. Throughout these
rulemakings, MSHA has identified engine filters, low-emission engines,
ventilation upgrades, environmental cabs, and alternative fuels such as
biodiesel as ways to meet the applicable DPM limits. 71 Fed. Reg. 28,938;
66 Fed. Reg. 5713, 5746. Consistent with industry's general preference for
flexible performance standards, MSHA allows operators to pick the control or
combination of controls that works best in a particular mine, although MSHA
has predicted that to meet the 160 TC limit, operators will have to use
filters and low-emission engines. See, e.g., 71 Fed. Reg. 28,936,
28,938.
Several studies have
shown that ceramic filters can meet the 160 TC limit. The Diesel Emissions
Evaluation Project in Canada (DEEP) reported a long-term soot removal of
more than 99% for both heavy-duty and light-duty vehicles at one mine,
A:BKG-46 at 259, and reductions of DPM to 50 micrograms at another mine.
A:BKG-41 at 11. A NISOH study at the Stillwater, Montana mine showed that
filters lowered EC from more than 1000 micrograms to between 149 and 15
micrograms, A:BKG-31 at 33, Table 5, and an MSHA study at the Greens Creek,
Alaska mine showed that filters reduced TC (EC x 1.3) to 139 micrograms and
lower. B:BKG-148, § 4.2.
MSHA recognizes that
operators must carefully select, install, and maintain filters for them to
work properly. MSHA has therefore provided comprehensive compliance
assistance and in February 2003 developed with NIOSH an internet-based
filter selection guide (www.msha.gov/nioshmnmfilterselectionguide/dpmfilterguide.htm)
to address filter implementation issues. 68 Fed. Reg. 48,695; 71 Fed. Reg.
28,968. These steps go well beyond MSHA's obligation merely to "'identify
the major steps for improvement'" without providing "'detailed solutions to
every engineering problem,'" National Petrochemical, 287 F.3d at 1136
(citation omitted), and support NIOSH's assessment more than three years ago
that implementation issues can be solved. B:CORR-27; see also A:COMM-108 at
5 (NIOSH adheres to that assessment). In short, what has been lacking thus
far has been industry's will, not a way to overcome obstacles to
implementation.
Cleaner engines can
also meet the 160 TC limit. The EPA Tier 1 and Tier 2 emissions standards
applicable to engines introduced into underground metal and nonmetal mines
after January 2001 require emissions of less than 0.1 grams per horsepower
hour for on-road engines and a somewhat higher range for off-road engines.
30 C.F.R. 57.5067 (Table). Engines introduced into mines before then can
have emission rates three to five times higher. See, e.g., B:BKG-55
(MSHA's Report on 31-Mine Study, Mine by Mine Analysis Using Estimator for
Mines D, H, L pt. 2, M, T); 71 Fed. Reg. 28,949-28,950 (discussion of old
Toyota pickup truck, which may not be suitable for a filter). Replacing
such engines with a Tier 1 or Tier 2 engine would therefore reduce emission
rates by 66 to 80%, which could permit compliance with the 160 TC limit,
particularly if the replaced engine has a high horsepower and runs for most
of a shift. See ibid. Replacing a dirty on-road engine with a Tier
4 engine, which is 90% cleaner than the Tier 1 or Tier 2 standards,
National Petrochemical, 287 F.3d at 1134, would be even more likely to
reduce emissions below the 160 TC limit.
Industry admits that
clean engines can reduce DPM levels, 71 Fed. Reg. 28,963-28,964; B:COMM-109
at 6, and does not dispute MSHA's conclusion that buying a new engine can
pay for itself in less than three years because of increased fuel
efficiency. 71 Fed. Reg. 28,972. Instead, industry complains about MSHA's
use of a peer-reviewed, published program called the "Estimator," B:BKG-170,
to predict the amount of reductions that will result from clean engines and
other controls. Jt. Br. 27-28. MSHA has repeatedly explained that its
Estimator predictions are based on a mine's actual data, rather than
laboratory data as claimed by industry, Jt. Br. 28, and show "good
agreement" with the DPM reductions that actually occur when controls are
installed. 71 Fed. Reg. 28,942; 70 Fed. Reg. 32,920. An industry expert has
also conceded that the Estimator's math "cannot be challenged." B:BKG-54-F,
App. B at 2. Accordingly, the Estimator is a "creditable source of
information" that bolsters MSHA's "reasonable predictions," Steelworkers,
647 F.2d at 1266, rather than a reason to second-guess MSHA's conclusion
that new engines can meet the 160 TC limit.
[3]
Back to Top
Ventilation,
environmental cabs, and biodiesel fuel are also effective tools in reaching
the 160 TC limit. See Jt. Br. 40 (agreeing that ventilation and
environmental cabs can be effective); B:BKG-166, § 7 (study reporting 69% TC
reduction with 50% biodiesel); A:BKG-31 at 34 (study reporting 26% and 48%
EC reductions with 20% biodiesel and 50% reductions with 50% biodiesel).
Mines' ability to upgrade ventilation is not as limited as industry argues
because it is an attractive option for many and perhaps most mines despite
MSHA's recognition of its impracticality for some mines. 71 Fed. Reg.
28,955. Moreover, even in multi-level metal mines, see Jt. Br. 40,
ventilation could be improved by such things as proper fan placement and
maintenance. 71 Fed. Reg. 28,954; see A:BKG-18 at 6-10 (MSHA report on
Stillwater assistance, discussing leaks in ventilation tubing and
recirculation of exhaust air because fans were in wrong positions). Cabs are
also more available than industry asserts, despite MSHA's recognition that
they may not be feasible in mines with narrow openings and low ceilings,
because they are frequently used in underground stone mines. 71 Fed. Reg.
28,953-28,954. Again, what has been lacking is a will, not a way.
Although this evidence
by itself satisfies MSHA's burden of "'pointing to technology that is either
already in use or has been conceived and is reasonably capable of
experimental refinement,'" AISI, 939 F.2d at 980 (citation omitted),
MSHA has more evidence in its case files, which show that some mines are
already meeting the 160 TC limit. See A:BKG-15 (February 9, 2006 report on
study at Martin Marietta's Sully Mine); A:-BKG-7 at 8-9 (MSHA's enforcement
sampling shows that in the last year 48.6% of samples were under the 160 TC
limit); see also A:HEAR-13 at 166 (Huber Limestone mine is under 160 TC).
The files also show that other mines can meet it. See A:BKG-3 at 5-7 (Balmat
mine could increase fan capacity and use filters and alternative fuel);
A:BKG-9 at 4 & Table 2 (Newmont Carlin East mine could use a filter on a
vehicle and increase airflow); A:BKG-10 at 5 (Hampton Mine could use filters
and replace an engine); A:BKG-11 at 4-8 (Martin Marietta Durham mine could
use alternative fuels and increase air flow); A:BKG-12 at 3 & Table 2 (Newmont
Midas mine could use filters on four haulage trucks); A:BKG-14 at 8
(Petersburg mine can use filters and increase airflow). Those files further
support the technological feasibility of the 160 TC limit. See AISI,
939 F.2d at 1006-1007.
2. Furthermore, in
its 2005 and 2006 revisions to the 2001 rule, MSHA has adopted a strategy
designed to leave no mine behind. The DPM standard permits respirators if
engineering controls do not meet the applicable limits and allows operators
to obtain renewable one-year extensions to meet the limits if they establish
that compliance is technologically or economically infeasible at a
particular mine. 71 Fed. Reg. 29,012; 70 Fed. Reg. 32,966. Those
provisions and operators' ability to raise feasibility issues in enforcement
proceedings, see Secretary of Labor v. Callanan Industries, 5
F.M.S.H.R.C. 1900, 1906-1909, 1983 WL 165363, at *4-*7 (Comm'n Nov. 9,
1983), "'greatly ease'" MSHA's burden of proving technological feasibility.
AISI, 939 F.2d at 980 (citation omitted).
[4]
Back to Top
B.
MSHA reasonably predicts that industry can meet the 350 TC limit by
January 2007 and the 160 TC limit by May 2008
In 2001, MSHA
concluded that industry could meet a 160 microgram TC limit by January 2006,
although it permitted a single two-year extension for individual mines that
could prove technological infeasibility. After industry challenged the 2001
rule, MSHA reexamined that conclusion and ultimately determined after
further rulemaking and three years of experience with the 400 TC/ 308 EC
interim limit, that industry could meet the 160 TC limit by May 2008, with
renewable one-year extensions for individual mines. MSHA also set a 350 TC
limit by January 2007 as an incentive for operators to begin work
immediately to meet the 160 TC limit. There is no serious question that
industry can meet the January 2007 limit because 78% of MSHA's enforcement
samples between November 2003 and January 2006, targeting miners with the
highest DPM exposures, were already below that 350 TC limit. 71 Fed. Reg.
28,961; A:BKG-7 at 8-9. A lower, second interim level is also necessary as
an incentive given industry's lack of progress in reducing DPM until the
first interim limit became effective. 71 Fed. Reg. 28,940. We show below
that (1) MSHA followed a reasonable process in setting May 2008 as the
effective date of the 160 TC limit and (2) the record fully supports MSHA's
conclusion that it cannot "justify further delays" beyond that date. Id.
at 28,979.
1. In 2001, MSHA had
information that filters worked in Europe, see 66 Fed. Reg. 5740-5744, and a
statement from the Engine Manufacturers' Association that "[t]he same
technologies used in on-highway engines have been applied to nonroad engines
used in mining and other equipment to achieve substantial emission
reductions." Doc. 526 at 2. Assuming that 50% of engines would be replaced
in five years through normal turnover, 66 Fed. Reg. 5889-5890, MSHA
concluded that industry could feasibly meet a 400 TC limit in one and a half
years and a 160 TC limit in an additional three and a half years.
After industry
challenged the 2001 rule, MSHA reexamined that conclusion by agreeing to a
31-Mine Study with industry and the Steelworkers. After MSHA staff
concluded in March 2002 that the study supported feasibility, MSHA received
information questioning whether filters work as well as MSHA had predicted.
See Jt. Br. 30-32; B:BKG-54-A to 54-F (industry comments); B:CORR-12 (Engine
Manufacturers Ass'n); B:COMM-16 (Engine Manufacturers Ass'n). MSHA's
January 2003 final report on the 31-Mine Study acknowledged that MSHA had
limited in-mine documentation on DPM control technology and that
complications concerning implementation of controls could influence the
extent to which controls are feasible. 68 Fed. Reg. 48,671. MSHA later
obtained NIOSH's June 2003 conclusion that implementation issues could be
resolved, B:CORR-27, and the results of studies, discussed above, showing
that filters worked in underground metal and nonmetal mines, although the
process required careful selection, installation, and maintenance of the
filters.
Relying on this
updated information, MSHA concluded in the June 2005 rule that an interim
limit, converted from 400 TC to 308 EC, was feasible. MSHA was also
concerned, however, that some mines could have difficulties implementing DPM
controls, particularly filters. 70 Fed. Reg. 32,915. MSHA concluded that
the record lacked sufficient information to justify a lower standard "at
this time," i.e., in June 2005. Id. at 32,916. MSHA
accordingly set out to address when a lower limit would be justified in
light of the 160 TC limit set by the 2001 rule that, barring further
regulatory action, was scheduled to go into effect in January 2006.
Back to Top
In September 2005,
MSHA proposed to phase-in the 160 TC limit in five steps over five years,
from January 2007 to January 2011, based on MSHA's belief that industry
faced complex implementation issues, that engine replacement had been slower
than MSHA predicted, and that industry would have difficulty obtaining and
using biodiesel fuel. 70 Fed. Reg. 53,283-53,284. MSHA requested comments
on those issues, id. at 53,283-53,287, and also on the length of time
and number of steps needed to reach the 160 TC limit. Id. at 53,288.
After the September
2005 proposal, MSHA concluded that disposable filter technologies, such as
high temperature disposable particulate filters (HTDPFs) with heat
exchangers, could be used in metal and nonmetal mines. 71 Fed. Reg. 28,944,
28,947; see A:BKG-95 (October 2005 MSHA presentation, Controlling Diesel
Particulate Matter Exposures in Underground Mines, slides 38 and 48). MSHA
also learned that on-road engines for 2007, which reduce DPM by 90% from
current EPA limits, see National Petrochemical, 287 F.3d at 1134,
would have built-in filters. 71 Fed. Reg. 28,935-28,936; see
www.dieselforum.org/meet-clean-diesel/road-to-2007-technology-gallery
(linked plans of Caterpillar, Cummins, Detroit Diesel, International Truck
and Engine, and Mack Trucks). MSHA explained that "these technologies are
not subject to many of the difficult implementation issues that have slowed
the adoption of some DPM controls." 71 Fed. Reg. 28,944.
This willingness to
reexamine filter feasibility, much of it at industry's request, shows no
"unexplained and irrational changes" in MSHA's thinking (Jt. Br. 29).
Rather, as filter technology changed and more positive and negative
information about it became available, MSHA's predictions about its efficacy
in meeting the 160 TC limit changed. As with OSHA's repeated reexamination
of feasibility in AISI, MSHA's willingness to reexamine its initial
finding of feasibility was a "prudent decision to monitor the . . . impact
of the standard." 939 F.2d at 1006.
2. The record also
fully supports MSHA's conclusion, based on new information, not only about
filter technologies, but about biodiesel and new engines, that a delay in
the 160 TC limit beyond May 2008 could not be justified. 71 Fed. Reg.
28,979. After the September 2005 proposal, MSHA learned from the Biodiesel
Board that biodiesel was more readily available and easier to use than MSHA
had predicted. Id. at 28,939; A-COMM-106, at 5-6; A:BKG-73;
A:BKG-74. Biodiesel can be used in any diesel engine, and operators even
get a tax credit for using it. 71 Fed. Reg. 28,944, 28,973; see American
Jobs Creation Act of 2004, Pub. L. No. 108-357, § 302, 118 Stat. 1418,
1463-1464. The 2007 on-road engines for heavy-duty equipment with high
horsepower, see 40 C.F.R. 86.007-11(a)(1)(iv), should not have difficult
implementation issues given the Engine Manufacturers' Association's
assurance that on-road engine technologies have been applied to nonroad
engines used in mining, Doc. 526 at 2, and industry's admitted ability to
solve alleged "vibration" problems. See Jt. Br. 38 n.21 (alleged problem);
70 Fed. Reg. 32,924 (shock-absorbing mounts are a solution). HTDPFs are
well-suited to medium and smaller engines, 71 Fed. Reg. 28,944, which last
longer than the large ones, id. at 28,943, and should not have
difficult implementation issues because disposable filters are currently
being used in coal mining. 71 Fed. Reg. 28,947-28,948; see A:BKG-24 at 93;
A:HEAR-13 at 150-164. Indeed, MSHA recognized eight years ago that
disposable filters work in low exhaust-gas temperature engines used in coal
mining. 63 Fed. Reg. 58,117, 58,125.
Back to Top
Additional support for
a May 2008 deadline comes from evidence that industry has not tried
available controls but can do so if faced with a deadline. See, e.g.,
A:COMM-103 at 8 (NSSGA treats filters as a "last resort"); 71 Fed. Reg.
28,938 (some mines removed controls rather than work through implementation
issues); id. at 28,940 (industry made "little progress" until the
interim limit became effective and then implemented controls to meet that
limit). MSHA also reasonably expects further developments in DPM control by
May 2008 based on the 2008 availability of off-road engines that, although
small, reduce DPM by 95%, id. at 28,935-28,936; see 40 C.F.R. 1039.1,
1039.102, and the 2006 availability of ultra-low sulfur fuel that will
enable advanced DPM control technology that would otherwise have been
inhibited. 71 Fed. Reg. 28,939; National Petrochem., 287 F.3d at
1143-1145.
The cumulative
rulemaking record is thus replete with examples of MSHA "'pointing to
technology that is either already in use or has been conceived and is
reasonably capable of experimental refinement and distribution within the
standard's deadlines.'" AISI, 939 F.2d at 980 (quoting
Steelworkers, 647 F.2d at 1272). MSHA therefore met its burden on
feasibility.
III.
MSHA REASONABLY INCLUDED A PROVISION FOR MEDICAL EVALUATION AND
TRANSFER, FULLY COMPLIED WITH NOTICE AND COMMENT REQUIREMENTS, AND PROPERLY
REJECTED INDUSTRY'S RELIANCE ON THE DATA QUALITY ACT
As discussed above, in
2005 MSHA allowed expanded use of respirators, as industry requested, by
incorporating its long-standing "hierarchy of controls" policy into the DPM
rule. In 2006, MSHA included a medical evaluation and transfer provision to
protect miners who have to wear respirators. This Court should reject
industry's attempt to take away that protection, as well as its related
procedural arguments concerning notice-and-comment and the Data Quality
Act. See Jt. Br. 23, 37-38, 42-44.
Back to Top
A.
The medical evaluation and transfer provisions are reasonable
protections for miners who have to wear respirators
The Mine Act requires
a mandatory health or safety standard, where appropriate, to provide for
operator-paid medical examinations of miners exposed to a regulated hazard.
30 U.S.C. 811(a)(7). Where appropriate, the standard must also provide that
a miner who may suffer material impairment of health because of such
exposure shall be removed from exposure and transferred to another position
with pay protection. Ibid.
Given this clear
statutory mandate, the only issue is one of appropriateness, which is a
matter for agency discretion, and not legal authority. MSHA reasonably
determined that medical evaluation and transfer provisions are appropriate
because they protect miners who have to wear respirators. As MSHA
explained, 71 Fed. Reg. 28,986, medical evaluations are needed because
wearing a respirator places a physiological burden on the person wearing it
that could cause illness, injury, or even death, depending on the person's
medical condition. See A:HEAR-3 at 24-25; A:HEAR-2-A, 2-B, 2-C; A:COMM-108
at 7; A:COMM-117 at 21. MSHA required transfer rights so that a miner would
give truthful information during a medical examination rather than false
information to protect his or her job. 71 Fed. Reg. 28,990; see A:HEAR-3 at
39; A:COMM-117 at 22.
These inter-connected
issues of respirator usage, fitness tests, and transfer rights are not
unique to the DPM standard. See Pendergrass, 878 F.2d at 399. In
any event, industry's concerns with the dangers of respirator use (Jt. Br.
43) are meritless given industry's support for respirators in 2005,
B:COMM-40 at 9; B:COMM-43 at 4-5; B:COMM-49 at 7, and their admittedly
successful use of respirators and medical evaluations in 2006. See, e.g.,
A:HEAR-7 at 127, 130, 165; A:HEAR-13 at 69; A:COMM-118 at 10. MSHA also
reasonably concluded that fewer than 1,000 miners, industry-wide, will need
to wear respirators at any one time, 71 Fed. Reg. 28,992, and that the
number would decrease over time, id. at 28,991. This is so because,
as discussed above, industry can implement DPM controls to meet the January
2007 effective date for the 350 TC limit and the May 2008 effective date for
the 160 TC limit and thereby make respirators unnecessary.
Contrary to industry's
argument (Jt. Br. 43), the medical evaluation and transfer provisions are
consistent with MSHA respirator standards for air contaminants because the
same respirators can be used under both standards. See 30 C.F.R.
57.5005(a), (b) (air contaminants); 30 C.F.R. 57.5060(d)(1), (2) (DPM).
Industry's speculation that the transfer provisions will disrupt workforces
(Jt. Br. 44) is meritless because fewer than five miners industry-wide will
need to be transferred at any one time. See A:HEAR-13 at 53-54; A:COMM-117
at 22. Indeed, some operators supported the transfer provisions, A:COMM-113
at 6-7 (Queenstake), or found them not to be a problem. A:HEAR-13 at 69, 95
(Rogers Group).
[5]
Back to Top
B.
MSHA complied with
notice and comment requirements
An agency satisfies
notice-and-comment requirements so long as its final rule is a logical
outgrowth of the rule it originally proposed. American Coke & Coal Chems.
Inst. v. EPA, 452 F.3d 930, 938 (D.C. Cir. 2006). A final rule
that differs from a proposal is a logical outgrowth "[i]f interested parties
'should have anticipated' that the change was possible, and thus reasonably
should have filed their comments on the subject during the
notice-and-comment period." Id. at 938-939 (citation omitted).
MSHA's 2006 medical
evaluation and transfer provisions are a logical outgrowth of the September
2005 proposed rule because MSHA expressly asked for comments on whether to
include a medical evaluation and transfer provision and set out the text of
the provision it was considering. 70 Fed. Reg. 53,289; see also 30 U.S.C.
811(a)(2) (MSHA shall include text of proposed rule). Industry also
extensively commented on the proposal. See 71 Fed. Reg. 28,987-28,988. The
medical evaluation and transfer provisions therefore easily satisfy the
logical outgrowth test, see United Steelworkers v. Schuylkill
Metals Corp., 828 F.2d 314, 317-318 (5th Cir. 1987), and this Court
should disregard industry's extra-record declarations (Jt. Br. 43-44)
addressing the issue. National Mining, 116 F.3d at 528; 30 U.S.C.
811(d).
MSHA's choice of a May
2008 effective date for the 160 limit is also a logical outgrowth of the
proposed five-step phase-in between January 2007 and January 2011. MSHA's
proposal requested comments on whether five years was the correct time
frame, whether a one- or two-step phase-in was appropriate, and whether the
160 TC limit in the 2001 rule should be repealed or reduced. 70 Fed. Reg.
53,280, 53,285. Industry was therefore on notice that MSHA was considering
a range of options, which included not amending the 2001 rule, thereby
making the 160 limit effective on May 18, 2006, see New York v.
EPA, 413 F.3d 3, 44 (D.C. Cir. 2005), repealing the limit, or having a
two-step phase-in. See also A:COMM-117 at 26 (Steelworkers wanted July 20,
2006 as latest 160 TC effective date). Industry also presented comments
showing they fully understood that MSHA could consider a range of options.
See A:COMM-112 at 11-12 (keep 308 EC as final limit or adopt two-step,
eight-year phase-in); A:COMM-109 at 9 (five-year, two-step phase-in);
A:COMM-110 at 21-22 (cannot meet 160 TC limit by May 2006 or at any other
date, so phase-in question is "moot"); A:COMM-118 at 8 (have "two or three"
step phase-in). Therefore, the phased-in final limit, which falls in the
middle of the range of options for which MSHA had given notice, also easily
satisfies the logical outgrowth test. See City of Waukesha v. EPA,
320 F.3d 228, 245-247 (D.C. Cir. 2003) (30 microgram limit is logical
outgrowth of proposed 20, 40, and 80 microgram limits); Husqvarna AB
v. EPA, 254 F.3d 195, 199, 203 (D.C. Cir. 2001) (four-year phase-in
is logical outgrowth of proposed five-year phase-in).
Finally, industry
should have anticipated that MSHA could consider new information about the
practicality of filters and availability of low-emission engines in
selecting the May 2008 effective date. MSHA asked for information on "what
types and sizes of [filters] have been evaluated" and "any other data
related to in-mine experiences with [filters] on underground metal and
nonmetal mining equipment." 70 Fed. Reg. 53,283. It was no secret that
HTDPFs were one type of filter under evaluation because MSHA stated in 2003
that it was evaluating HTDPFs, 68 Fed. Reg. 48,682, MSHA had listed HTDPFs
on the filter-selection webpage that it told industry to consult, 70 Fed.
Reg. 32,883, and NIOSH had tested an HTDPF at Stillwater's mine. Id.
at 32,927; A:BKG-31 at 28. Industry also commented on HTDPFs. A:HEAR-7 at
55-56, 100; A:COMM-110 at 10.
Industry also should
have anticipated that MSHA might obtain new information about EPA Tier 4
engines because MSHA asked for comments on industry's use of "low DPM
emitting engines," including the EPA Tier 1 and Tier 2 engines already in
effect, to assess whether MSHA's 2001 predictions on engine use were
accurate. 70 Fed. Reg. 53,284. Industry was also aware that new EPA
requirements were set to take effect. A:HEAR-13 at 101-102; see National
Petrochem., 287 F.3d at 1134 (Tier 4 requirements were set in 2001). As
in American Coke, it was "'perfectly predictable'" that MSHA could
obtain new data about low-emission engines, "'either submitted by the public
with comments or collected by the agency in a continuing effort to give the
regulations a more accurate foundation.'" 452 F.3d at 939 (citation
omitted).
[6]
Back to Top
C.
Industry lacks
standing to rely on the Data Quality Act
In American Federation of
Government Employees v. Rumsfeld, 321 F.3d 139, 142-145 (D.C.
Cir. 2003), this Court rejected a private party's attempt to enforce
occupational safety and health requirements for lack of prudential
standing. The same rationale applies to industry's attempt to enforce the
Data Quality Act, also known as the Information Quality Act. Jt. Br. 23.
The Data Quality Act is an appropriations rider that directs the Office of
Management and Budget (OMB) to issue guidelines to agencies concerning
information that agencies maintain and disseminate. Pub. L. No. 106-554, §
515, 114 Stat. 2763, 2763A-153 (2000). Because the Act, by its terms,
"creates no legal rights in any third parties," industry lacks standing to
complain about alleged Data Quality Act violations. Salt Inst. v.
Leavitt, 440 F.3d 156, 159 (4th Cir. 2006). Thus, although MSHA
believes that it fully complied with the Data Quality Act, see 71 Fed. Reg.
29,000-29,006, and that OMB's clearance of the DPM rules indicates OMB's
concurrence, the Court should not address the merits of industry's Data
Quality challenge. Judicial review of Data Quality Act issues would
interfere with agencies' ability to promulgate reasonable and necessary
health and safety standards under their statutory mandates.
CONCLUSION
The petitions for review should be denied.
Respectfully submitted.
HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor for
Mine Safety and Health
NATHANIEL I. SPILLER
Assistant Deputy Solicitor
____________________________
EDWARD D. SIEGER
Senior Appellate Attorney
U.S. Department of Labor
200 Constitution Ave., N.W.
Room N-2428
Washington, D.C. 20210
(202) 693-5260
DECEMBER 2006
Back to Top
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7), and Circuit Rule 32, I hereby certify
that the Final Brief for Respondents is monospaced, has 10.5 or fewer
characters per inch and contains ______ words as determined by the Microsoft
Word software system used to prepare the brief.
______
EDWARD D. SIEGER
CERTIFICATE OF SERVICE
I hereby
certify that on this 6th day of December 2006, one copy of Respondents'
final brief was served by electronic delivery and two copies were served by
first class mail on the following counsel of record:
Thomas
C. Means
Edward
M. Green
Daniel
Wolff
Crowell
& Moring LLP
1001
Pennsylvania Ave., N.W.
Washington, DC 20004 |
John K.
McDonald
Jackson
& Kelly PLLC
2401
Pennsylvania Ave., N.W.
Suite
400
Washington, DC 20037
|
Henry
Chajet
David
Farber
John
Austin
Patton
Boggs LLP
2550 M
Street, N.W.
Washington, DC 20037 |
Harold
P. Quinn, Jr.
National Mining Ass'n
101
Constitution Ave., N.W.
Suite
500 East
Washington, DC 20001 |
Michael
T. Heenan
Margaret S. Lopez
William
K. Doran
Ogletree, Deakins, Nash,
Smoak
& Steward, P.C.
2400 N
St., N.W., Fifth Floor
Washington, DC 20037
|
Randy
S. Rabinowitz
Attorney at Law
3426
Meridian Ave., N.
Seattle, WA 98103
|
Laura
E. Beverage
Jackson
Kelly PLLC
1099
18th St., N.W.
Suite
2150
Denver,
CO 80202
|
Paul
Whitehead
Daniel
M. Kovalik
Assistant General Counsel
United
Steelworkers of Am.
Five
Gateway Center
Pittsburgh, PA 15222
|
__________________________
EDWARD D. SIEGER
Senior Appellate Attorney
Back to Top
Footnotes:
[*]
Authorities upon
which we chiefly rely are marked with asterisks.
[1]
Industry incorrectly
states (Jt. Br. 19) that the record has no evidence that underground
metal/nonmetal miners have suffered material health impairment from DPM.
See B:BKG-38 (Saverin study); Doc. 7 (attachment to NIOSH comments). NIOSH
also told MSHA more than seven years ago not to delay rulemaking until
completion of an ongoing NIOSH/NCI study of metal and nonmetal miners. Doc.
501 at 2; see Jt. Br. 4.
[2]
MSHA is also developing an
error factor to account for sample variations at the 350 level, which may
differ from the error factor MSHA used at the 400 level. 71 Fed. Reg.
28,978. Among other things, an error factor addresses concerns that the
normal OSHA and MSHA use of a single sample to determine compliance may not
accurately measure a miner's exposure. 63 Fed. Reg. 58,117; Secretary of
Labor v. Asarco, Inc., 19 F.M.S.H.R.C. 1097, 1130-1136 (ALJ
1997), pet. dismissed, 20 F.M.S.H.R.C. 1001 (1998), pet. dismissed, 206 F.3d
720 (6th Cir. 2000).
[3]
Industry also makes the
nonsensical argument (Jt. Br. 29) that the Estimator is speculative because
it was designed for measuring "ambient air" and MSHA changed the 2001 rule
from an "ambient DPM" standard to a permissible exposure limit (PEL). The
2001 rule set a concentration limit rather than a PEL because MSHA intended
to use area and occupational samples as well as personal samples to enforce
it. The 2005 and 2006 limits are PELs because MSHA agreed with industry not
to use area or occupational samples. That change in how MSHA measures
ambient air is irrelevant to the Estimator's predictions on the effect of
controls in reducing DPM.
[4]
Industry suggests (Jt. Br.
33) that in 2005 when MSHA adopted the respirator provision, it inexplicably
"abandoned" the 2001 rule's prohibition against the use of respirators and
administrative controls. Industry fails to mention, however, that it
supported these compliance-easing changes, see B:COMM-40 at 9; B:COMM-43 at
4-5; B:COMM-49 at 7, and that they were made to be consistent with the
hierarchy of controls that MSHA and OSHA apply under other standards. See,
e.g., 70 Fed. Reg. 32,918-32,919; AISI v. OSHA, 182
F.3d 1261, 1267 (11th Cir. 1999). MSHA also clarified that the 2001 rule's
unique definition of "administrative controls" as rotation of miners, 66
Fed. Reg. 5859, permits administrative controls that do not involve rotation
of miners, but kept the rotation prohibition. 70 Fed. Reg. 32,953-32,954.
[5]
Based on the improper use of a
declaration that is not in the rulemaking record, industry also argues that
medical examinations and transfers will be required to protect against DPM
exposure hazards that may no longer exist in that workplace. Jt. Br. 43.
Nothing in the DPM rule requires that result, and MSHA's September 2006
Compliance Guide, Q&A 109, states that a miner who was overexposed does not
have to wear a respirator while working in an area of the mine where he is
not overexposed, assuming that the operator is not rotating jobs. See
www.msha.gov/REGS/COMPLIAN/Guides/MNMDPM/MNMdpmcompguide.pdf
.
[6]
Industry also fails to show
required harm. 452 F.2d at 939, 940. Industry does not dispute that engine
manufacturers will meet Tier 4 requirements with filters built into engines,
as MSHA learned, but simply wants to argue that on-road technology is not
transferable to in-mine applications, Jt. Br. 38, contrary to the conclusion
of MSHA and the Engine Manufacturers Association that it is. 71 Fed. Reg.
28,936; 66 Fed. Reg. 5895; Doc. 526 at 2.
| |
|