Dog Tails, Canaries and a Diesel Ruleâs âIllegitimate Birthâ

Mining companies opposed to a health standard to protect underground miners from diesel particulate matter (DPM) finally had their day in court.  The morning proceeding featured remarks about tail-wagging dogs and coal-mine canaries, presented before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.  Industry attorneys urged the Court to vacate the exposure limits and other provisions of the Mine Safety and Health Administrationâs (MSHA) 2001 DPM rule.  From my vantage point sitting on the public gallery benches, Chief Judge Douglas H. Ginsberg, Senior Judge Harry T. Edwards and Judge David B. Sentelle seemed unimpressed by the industryâs arguments.

The court proceeding stems from a rule issued at the end of the Clinton Administration affecting workers at about 160 underground metal and nonmetal mines who are exposed to excessive levels of particulate matter (8-hour TWA exposure of 800 ug/m3) generated by diesel-powered mining equipment.  Throughout the rulemaking process, a group of mine operators claimed the rule was neither scientifically valid nor feasible. (Read more here) In the courtroom on January 9, 2007, they used the same script.  Attorneys Henry Chajet of Patton Boggs, LLP  and Thomas C. Means of Crowell & Morning LLP, representing the plaintiffs,* asserted that MSHAâs decision to use a surrogate (total carbon (TC) or elemental carbon (EC)) to assess workersâ DPM exposure was arbitrary.  They claimed that the agency was not regulating DPM, but rather TC, and thus had to provide evidence that it was a harmful physical agent.  Bemused by the attack on the DPM surrogate, Chief Judge Ginsberg asked Mr. Chajet if coal-mine canaries (used historically to detect carbon monoxide) would have to be deemed hazardous in their own right before being deemed an appropriate surrogate for bad air.  The industry attorney chuckled nervously, and that was the only response I recall to the Judgeâs canary remark.
 
Next, the industry attorneys declared that the MSHA rule is arbitrary because it is out-of-step with what OSHA, the Coast Guard, or the Federal Railroad Administration are doing.  Itâs the âtail wagging the dogâ said Mr. Chajet, because none of these other agencies have DPM regulations.  Judge Sentelle seemed annoyed by this argument, interrupting Mr. Chajet to say âthey [MSHA] are the tail and the dog as far as mine safety is concerned.â**   The Chief Judge agreed, saying âI donât know where that argument is coming fromâ because MSHA is ânot boundâ by what OSHA or other agencies are doing or have done.

Finally, Mr. Chajet tried one of the industryâs favorite criticisms about MSHAâs rule: the agency failed to wait for a NIOSH/NCI epidemiological study of diesel-exposed miners. (Read more here)  The attorney could barely finish his sentence before the Chief Judge chimed in âthereâs always going to be another study,â and with Senior Judge nodding in agreement, Judge Sentelle added, the agency would be âfrozen in placeâ if they were forced always to wait for the next study.  Under that scenario, Sentelle suggested, they would be unable to regulate anything. 

Despite the judgesâ rebuke, Mr. Chajet pressed on about the NIOSH/NCI study claiming that preliminary results concluded that the lung cancer risk to miners in the cohort was equal to that of the general population.  (He failed to mention that these âpreliminary resultsâ were prepared by the industryâs consultant and of derisory scientific value.)  Again, the judges appeared bothered by Mr. Chajetâs assertions about the scientific support for the rule, but the attorney amused them briefly at his statement's conclusion when he characterized MSHAâs rule as one that had been âgiven an illegitimate birth.â  One judge asked, âDid you say âillegitimate birth?ââ perhaps wondering like I did what an âillegitimate birthâ has to do with the legal burden required of an occupational health standard promulgated under the Federal Mine Safety and Health Act of 1970 and the Administrative Procedure Act.

Mr. Chajet shared his podium time with Thomas C. Means who attempted to make the industryâs case that the DPM rule is not economically or technologically feasible.  His evidence didnât seem to convince the three federal judges.  Mr. Means claimed that about âhalf the mines in the countryâ are not in compliance with the exposure limit.  Judge Sentelle leaned forward and interrupted politely to note for Mr. Means that the âconverse is then true,â that half the mines in the country are already in compliance.  The judges seemed puzzled by the industryâs assertion that all mines need to demonstrate they can meet the exposure limit before MSHA can determine a rule is feasible.  Judge Ginsberg reminded the industry attorneys that the Mine Act is a technology-forcing statute (as is the OSH Act.)  This means MSHA can impose requirements that may require an employer to use technology that is looming on the horizon, and may select a regulatory alternative that only the most advanced operations are meeting already.***

Edward D. Sieger, a senior appellate attorney for the U.S. Department of Labor (DOL), represented the Secretary of Labor and MSHA in the case.  In his 10-minute rebuttal, he addressed the industryâs claims about the imprecision of using carbon (total and elemental) as an exposure surrogate for DPM and their allegations about infeasibility of meeting the exposure limit.  Senior Judge Edwards pressed Sieger on the issue of carbon interferences (e.g., oil mist) which can affect the accuracy of the air samples.  The DOL attorney acknowledged that carbon interferences can potentially affect the samples, but described the methods used by agency personnel to control this possible effect.

The industry attorneys were given one last chance to convince the three federal judges that MSHAâs rule is âarbitrary and capricious.â   They focused their argument on DPM itself, insisting that it cannot be measured, and MSHAâs exposure surrogate (TC) is a substance âubiquitous on this earth.â  Mr. Chajet emphasized that âthey [MSHA] cannot measure any of this material,â hoping the judges would agree that if the substance cannot be measured, it cannot be regulated in the manner prescribed in MSHAâs rule.

A decision in the case is not expected for several months.  Meanwhile, because the court rejected the mining industryâs request for a stay of the exposure limit provisions, a more protective permissible exposure limit of 350 ug/m3 (TC) took affect on January 20, 2007.  The final limit of 160 ug/m3 (TC) is supposed to take affect in May 2008, but this may depend on the Courtâs decision in the above described case.

*Plaintiffs include the MARG Diesel Litigation Coalition, the National Mining Association, Kennecott Greens Creek Mining, Turquoise Ridge Inc., Barrick Goldstrike Mines, Inc., and the National Stone, Sand & Gravel Association.

**A transcript of the hearing is not yet available.  The quotes are based on notes taken at the hearing, and will be verified for accuracy against the official hearing transcripts when available.

***For court decisions addressing technological feasibility see: American Iron & Steel Institute v. OSHA (577 F.2d 825, 832-835, and United Steelworkers v. Marshall (647 F.2d 1189, 1266).