Unions Challenge Reduced Mining Regulations

In 2009 Massey Energy had been issued 515 citations by the Mine Safety and Health Administration (MSHA) for safety violations at its Upper Big Branch coal mine located in West Virginia that was owned and operated by Massey Energy.

So, the next year, after a tragic mine explosion caused by methane gas that killed 29 miners at the Big Branch Mine, the MSHA was criticized for not doing enough to bring the mine into compliance when it issued a flagrant violation to Massey Energy and fined them $200,000.  The MSHA played an important role in protecting miners then and now. 

No-Less-Protection Standard

The MHSA, housed within the United States Dept. of Labor, has as its primary duty the setting of health and safety standards for mining operations.  The regulatory authority of MHSA is found in 30 U.S.C. § 811(a)(9) and provides a unique standard that guides any regulation it produces.  The legislation states “…no mandatory health or safety standard…shall reduce the protection afforded miners by an existing mandatory health or safety standard.”  This is intended to protect miners by requiring that any new regulations must not weaken or lessen the safeguards put in place by previous regulations. 

The Obama Administration Standard Rule

In 2017, the Obama Administration promulgated regulations that added new requirements to the existing regulations, including language that examination of the workplace conditions would take place “before miners begin work” and that operators “promptly notify miners” of adverse conditions found, record any “adverse conditions” found, and record subsequent corrective action taken.

The Trump Administration’s Amendment to The Standard Rule

After President Trump was elected in 2018, he appointed a former --- then retired --mine official, David Zatezalo, as the new chief of the MHSA. Under Zatezalo’s tenure new regulations were promulgated that sought to amend the 2017 Standards, which had only been actually implemented for three weeks before the 2018 Amendments were issued.

The 2018 Amendments made two substantive changes to the regulations: 1) it permitted workplace exams to occur either before work began or as miners began work and 2) it exempted from the recordkeeping requirements those conditions that the operation had promptly corrected.

Unions Challenge The New Rules In Litigation

Two large unions challenged the Final Rule in the United States Court of Appeals for the District of Columbia Circuit.  The unions were the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union; and the AFL-CIO-CLC and United Mine Workers International Union.

Oral Arguments Held On March 12, 2019 & The Decision Was Issued On June 11, 2019

Judge Karen Henderson, writing for the majority, distilled the case to this:  “We are called upon to decide whether MSHA explained adequately how the amendments to the 2017 Standard comply with the no-less-protection standard.”

The Judge gave a detailed background on the MSHA and the 2017 Standard and its 2018 Amendment.  She then proceeded to answer the question she posed with an analysis of the new Amendment and whether it met the no-less-protection standard. 

The Mine Act requires MSHA to “state the basis for its conclusion” that a new health or safety standard satisfies the no-less-protection standard.  The statement is subject to review under the Administrative Procedures Act (APA). MHSA must also show that it engaged in reasoned decision-making. The review by the Court under the APA is always deferential to the agency and “presumes the validity of agency action.”

The 2018 Amendments gives mine operators the option to conduct examinations as miners begin work in an area. It also modifies the record keeping requirement to mandate that a “record shall contain the . . . description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly.  The new rule allows mine operators to not record promptly corrected conditions.

Court Rules For The Unions

However, the Court found the new 2018 Amendment to be arbitrary and capricious and ordered it to be vacated.  The Court also ordered MSHA to implement the 2017 Standard. It found that on its face the new rules appear to increase miners’ exposure to health and safety risks.

The MSHA claimed that the no-less-protection standard is satisfied because under the 2018 Amendment, as under the 2017 Standard, adverse conditions will be “identified and miner notifications provided before miners are potentially exposed to conditions.”

The Court found that the explanation problematic because it doesn’t allow for notification to miners before exposure to dangerous work conditions.  They allow miners to work in areas before the examination is completed potentially exposing them to adverse conditions before they are discovered.

The Court said the explanation offered by MSHA relies on a non-existent notification and therefore the new rules are arbitrary and capricious for a second reason.  They could also not be reconciled with factual findings that MSHA has made in support of the 2017 standard.

The Court said the position MSHA took in 2018 was in exact opposite to the position it had assumed in 2017 regarding examining work areas and notifying miners to adverse conditions.  MSHA also gave no explanation for the changed position.

Prior to the 2017 rules, from 1979 to 2017, MSHA’s safety standards allowed operators to conduct an examination anytime during the miner’s shift.  This flexibility created a great degree of variability in how safety programs were operated.  The 2017 Standards were introduced to “reduce the variability in how operators conduct examinations of working places and thereby improve miners’ safety and health.”   The 2018 Amendment brought that same variability back thus ignoring its previous findings that increased variability does not improve miners’ safety.   The Court agreed with the petitioners that MSHA failed to explain how the 2018 Amendments complied with the no-less-protection standard.

The Record Keeping Requirement

The Court found that under the no-less-protection standard, MSHA had to adequately explain why the 2018 Amendment was equal to or exceeded the record keeping requirements of the 2017 Standard. MSHA concluded that a “recording exception for adverse conditions that are corrected promptly…will yield as much or more safety benefits because it encourages prompt correction of adverse conditions.”

The “unsupported explanation” didn’t withstand the Court’s scrutiny.  This was not a satisfactory explanation for them and lacked a rational connection between the facts found and the choices made” citing State Farm Mut. Auto. Ins. Co. , 463 U.S. at 43 (1962). They found the 2018 Amendment with regards to recordkeeping at best “specious.” 

Because MSHA could not offer up an adequate explanation, the Court found this change in the safety standards also arbitrary and capricious. There was no reasoned explanation for either the examination and recordkeeping requirements of the 2018 Amendments and therefore didn’t meet the no-less-protection standard.

Writing for the majority, Judge Henderson concluded, ”The 2018 Amendment is therefore ultra vires and unenforceable.” The Court then vacated the 2018 Amendments and ordered MSHA to reinstate the 2017 Standard in order to avoid confusion.

Judge Katsas Dissents

Noting several instances when the Court paid deference to agency actions, Judge Katsas, appointed by President Trump, wrote an eight-page dissenting opinion. He stated that MSHA explained the second change but not the first. He wrote that he believed that the MSHA adequately explained why the 2018 Amendment regarding recording is consistent with the no-less-protection rule.


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