International Union , United Mine Workers of America v. Department of Labor and Mine Safety and Health Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2008 Decided February 10, 2009
No. 08-1147
I NTERNATIONAL UNION , UNITED M INE WORKERS OF AMERICA ,
PETITIONER
v.
DEPARTMENT OF LABOR AND M INE SAFETY AND HEALTH
ADMINISTRATION,
RESPONDENTS
NATIONAL M INING ASSOCIATION,
I NTERVENOR
On Petition for Review of an Order of the Federal Mine
Safety & Health Administration
Judith Rivlin argued the cause for petitioner. With her on
the briefs was Grant Crandall.
Edward Waldman, Attorney, Mine Safety & Health
Administration, argued the cause for respondents. With him
on the brief was W. Christian Schumann, Counsel. Robin A.
Rosenbluth, Attorney, entered an appearance.

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Henry Chajet and Harold P. Quinn were on the brief for
intervenor.
Before: GINSBURG and KAVANAUGH , Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: In 2006, Congress
passed the MINER Act with the purpose of improving mine
safety. Pub. L. No. 109-236, 120 Stat. 493. Section 4 of the
Act requires the Secretary of Labor to issue certain regulations
concerning mine rescue teams. 30 U.S.C. § 825(e)(2). The
petitioner, United Mine Workers of America, challenges
several provisions of the final rule that the Mine Safety and
Health Administration (“MSHA”) issued pursuant to Section
4. 73 Fed. Reg. 7636/1 (Feb. 8, 2008). We hold that the final
rule is inconsistent with the Act in three respects. It allows
certain rescue teams to meet the requirements by training at
small mines annually rather than semi-annually, and allows
state employees on mine rescue teams to fulfill their
obligations with participation in only one mine rescue contest
per year and, even then, with service merely as a contest
judge. The statute permits none of these. We therefore grant
the petition with respect to those portions of the rule, and deny
it in all other respects.
* * *
The union’s first argument concerns the Act’s “small
mines provision.” 30 U.S.C. § 825(e)(2)(B)(iv). Among
other things, this provision requires that the regulations
provide “(iv) [t]hat the operator of each underground coal
mine with 36 or less employees shall — . . . (II) make
available two certified mine rescue teams whose members —

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. . . (cc) participate at least semi-annually in mine rescue
training at the underground coal mine covered by the mine
rescue team.” Id. § 825(e)(2)(B)(iv)(II)(cc). This is an
unambiguous requirement that each small mine must provide
two certified mine rescue teams that train at that mine “at least
semi-annually.” MSHA’s final rule, however, allows two
types of rescue teams—mine-site and state-sponsored teams—
to train at small mines only once a year. 30 C.F.R.
§ 49.20(b)(1), (b)(4). (The rule requires semi-annual training
for “contract” and “composite” teams. Id. § 49.20(b)(2),
(b)(3).)
MSHA’s only argument in defense of its apparent
violation of the statutory text is a creative but fruitless one. It
focuses on the last of the requirements imposed on the rescue
teams operating at small mines, which states that they must be
“comprised of individuals with a minimum of 3 years . . .
experience that shall have occurred within the 10-year period
preceding their employment on the contract mine rescue
team.” 30 U.S.C. § 825(e)(2)(B)(iv)(II)(ff). From this
provision it generates a three-step justification: (1) This last
requirement can only be met by contract teams; (2) because
the word “and” connects this requirement with the other five,
they must be read conjunctively, so that “all listed criteria
must be fulfilled,” Respondent’s Br. at 19; (3) therefore “one
can read the statutory language to mean that the six criteria
apply to members only of contract rescue teams.” Id.
Assuming arguendo that MSHA’s first two steps are
reasonable, the third does not follow. The logical implication
of the first two steps is simply that only contract teams could
meet the requirements. This would not undercut the language
requiring that each team must train at the mine at least semi-
annually.

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* * *
Section 4 of the MINER Act also requires rescue teams
serving both large and small mines to participate in two local
mine rescue contests each year. 30 U.S.C.
§§ 825(e)(2)(B)(iii)(I)(bb)(BB), (iv)(II)(bb). The union
challenges four aspects of MSHA’s implementation of this
requirement.
First, the union argues that the final rule violates the
requirement by allowing mine rescue team members who are
state employees with certain job duties to “substitute their
regular job experience for 50 percent of the training
requirements,” (i.e., for one of the two contests each year). 30
C.F.R. § 49.11 (table). In allowing some team members to
participate in only one contest per year, the final rule once
again directly contravenes explicit statutory language. In its
brief, MSHA does not even attempt to argue that the final rule
constitutes a plausible interpretation of the statute. It argues
instead that the experience of the state employees “is, at the
least, the functional equivalent of the training they would gain
in participating in one mine rescue team contest.”
Respondent’s Br. at 34. The statute, however, requires two
mine contests, not their functional equivalent.
The union’s second argument presents a closer question.
It suggests that MSHA also erred by allowing state employees
to fulfill the rescue contest requirement by judging a contest,
rather than participating in it as a contestant. 73 Fed. Reg.
7643/2-3. As a purely linguistic matter, it might not seem
unreasonable to say that a contest judge “participated” in a
contest. But in this particular context, we are convinced that
MSHA’s interpretation is unreasonable. This conclusion
follows from MSHA’s own understanding of the rescue
contest requirement—an understanding we believe is
compelled by the statute.

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In its analysis of the proposed rule, MSHA described
mine rescue contests as “opportunit[ies] to test the team
member’s level of knowledge and skill under simulated mine
emergency conditions.” 72 Fed. Reg. 51326/3. It noted that
the experience of “being timed, observed, and judged provides
a measure of stress” and that “[t]he ability to make correct
decisions quickly, while under stress and wearing breathing
apparatus, is a vital skill for each mine rescue team member to
develop.” Id. The same themes appeared in the analysis of
the final rule. Rescue contests “sharpen skills” and “provide[]
individuals with practical, hands-on experience.” 73 Fed.
Reg. 7641/1. MSHA describes the role of judges in terms that
focus on their contributions to the teams’ experience. The
contest judges “evaluate teams and provide a written
evaluation and score after each contest,” determining whether
each team “demonstrates acceptable skills to be certified,”
thereby allowing the team to “learn from constructive
feedback and their experiences during contests.” Id. at
7641/2. In addition, MSHA used the fact that rescue teams
would receive objective evaluation in mine contests to argue
that its approach satisfied the Act’s certification requirements.
Id. at 7643/1; see also 30 U.S.C. § 825(e)(2)(B)(ii). In
explicitly demanding experiential education, Congress can
hardly have had in mind the relatively cerebral, hands-off
activity of evaluation, no matter how instructive.
Accordingly, MSHA’s conclusion that one can participate in a
mine contest by judging is at odds with the statutory language.
The union’s remaining challenges to MSHA’s
implementation of the rescue contest requirement are without
merit. The first is the claim that MSHA improperly classifies
Mine Emergency Response Development (“MERD”)
exercises as mine rescue contests. The union has not
identified, however, any feature of a mine rescue contest that
such an exercise would lack. In a compliance guide for the
rescue team regulations, see U.S. Department of Labor, Mine

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Safety and Health Administration, Mine Rescue Teams; Final
Rule: Questions and Answers, 9-11 (Apr. 2008), the Secretary
has paraphrased the regulatory requirements for regular mine
contests as seven criteria, and has promulgated the identical
criteria for MERD exercises. These requirements include the
use of MSHA-recognized rules; a minimum of three teams
competing; one or more problems with a determined winner;
and evaluation by judges. Id. The union points to no feature
of the governing regulation, 30 C.F.R. § 49.60, that is not
replicated for MERD exercises. MSHA’s interpretation is
clearly reasonable.
The union further objects to MSHA’s provision that a
contest “[h]as one or more problems conducted on one or
more days.” Id. § 49.60(a)(4). According to the union, this
means that a single two-day contest could meet the two
contest requirement. Petitioner’s Br. at 23. But nothing in the
statute precludes a rule allowing two contests’ being held on
consecutive days. It is reasonable for MSHA to allow for that
possibility, provided that each of the contests meets all of the
statutory requirements.
* * *
The union also challenges MSHA’s implementation of
the Act’s certification and training requirements. Both of
these challenges fail. With respect to certification, the Act
requires MSHA to “establish, and update every 5 years
thereafter, criteria to certify the qualifications of mine rescue
teams.” 30 U.S.C. § 825(e)(2)(B)(ii). The union claims that
MSHA violated those instructions by vesting the certification
obligation in mine operators, rather than handling certification
itself. 30 C.F.R. § 49.50(a). But the Act merely requires
MSHA to establish the certification criteria; it does not
specify who is to determine whether particular mine rescue

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teams have met the criteria. MSHA’s choice was reasonable,
and consistent with Congress’s statement that mine operators
“have the primary responsibility to prevent the existence of
[unsafe and unhealthful] conditions and practices” at their
mines. 30 U.S.C. § 801(e).
In its reply brief, the union attempts to morph this claim
into an argument regarding the adequacy of the certification
criteria themselves. But it has forfeited that distinct argument
by failing to advance it in its opening brief. Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
The union’s argument concerning the on-site training
requirement is equally unavailing. The MINER Act requires
mine rescue teams to train at the underground coal mine
covered by the team; the frequency of the training varies by
type of team. 30 U.S.C. § 825(e)(2)(B)(iii)(I)(bb)(CC),
(II)(bb)(BB), (II)(bb)(CC)(aaa), (iv)(II)(cc). In implementing
these provisions, MSHA required that “a portion of the
training must be conducted underground,” 30 C.F.R.
§ 49.20(d), but declined to specify any minimum time to be
spent underground. 73 Fed. Reg. 7641/1. The union contends
that this decision is arbitrary and capricious. But the statute
does not speak to how much time has to be spent
underground, and MSHA sensibly observed that “the amount
of time required to familiarize teams with a particular mine
will vary” and that “teams may need more time to become
familiar with complex mines and newer team members may
require more time to achieve this familiarity.” Id. In light of
these considerations, MSHA decided not to impose a set
minimum of underground time at each mine. Id. We see
nothing arbitrary or capricious about this reasoning.

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* * *
Finally, the union notes that the MINER Act requires the
regulations to be “finalized and in effect” within 18 months of
the Act’s enactment, 30 U.S.C. § 825(e)(2)(A), which means
they were to be in place by December 2007. In fact, MSHA
issued the final rule only in February 2008, with staggered
implementation provisions that delayed full compliance until
February 2009. 73 Fed. Reg. 7636/1. Now, as a result of our
remand, MSHA will have to take further action. The union,
anticipating at least some measure of substantive victory,
urges us, in light of “the statutory timetable showing that
Congress intended speedy action, and the Agency’s initial
failure to meet its mandated schedule,” Petitioner’s Br. at 32-
33, to impose a scheduling order and to retain jurisdiction.
See Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70,
79-81 (D.C. Cir. 1984).
We know of no case, however, where a court has taken an
agency’s failure to meet a statutory deadline (itself not
automatically indicative of unreasonable delay, see id. at 80)
as a springboard for imposing time limits on a remand. The
final rule, though delayed, has now been issued; the
modifications required by this opinion, obviously, have not
yet been delayed. We have no reason to assume that MSHA
will not proceed expeditiously. We therefore decline to
impose a scheduling order or to retain jurisdiction.
* * *
In sum, the final rule violates the Act by allowing certain
teams to train at their mines annually rather than semi-
annually, and by allowing certain state employees to substitute
their job duties for one of the two required rescue contests and
to meet the contest requirement by serving as a judge.

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Accordingly, we vacate those portions of the rule and remand
to MSHA for further consideration. We deny the petition in
all other respects.
So ordered.

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