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Law360 (July 16, 2020, 11:42 PM EDT ) The D.C. Circuit on Thursday rejected a bid from a coalition of mining and steel unions to make the Mine Safety and Health Administration issue a rule requiring employers to protect miners from COVID-19, deferring to the agency's stance that a rule isn't needed.
Noting its "highly deferential" standard of review, the panel could not determine, at this time, that MSHA's determination is unreasonable but it noted that "in view of the ever developing situation with COVID-19," the coalition of workers could renew its petition if the existing procedures prove inadequate.
"The MSHA has determined that its existing mandatory safety and health standards, coupled with other regulatory tools, are sufficiently broad to allow it to require mine operators to take steps specific at each mine to abate a variety of health hazards, including COVID-19," the panel noted. "The MSHA has assured the court that it views its existing standards as imposing COVID-related duties on mine operators and that it is issuing citations with respect to COVID-related violations."
United Mine Workers of America International Union unsuccessfully petitioned the agency in March to issue an emergency standard, detailing the unique risks miners face like working closely together underground and other occupational diseases that could "greatly exacerbate the severity of the symptoms related to COVID-19."
"We have been asking MSHA to step up and do its job to protect America's miners from the beginning of this pandemic," Mine Workers International President Cecil E. Roberts said in a statement. "But so far, the agency has refused. You would think that those who are charged with keeping miners safe would want to actually do so."
In denying the petition, the agency said miners faced risks no different from other Americans, an assertion the unions said has no factual basis.
In June, the coalition told the D.C. Circuit that the agency's refusal to issue an emergency safety standard is an "abuse of agency discretion."
The agency disregarded its obligation under the Federal Mine Safety and Health Act to implement mandatory safety measures to protect miners "exposed to a grave danger" when it only issued nonbinding safety recommendations instead, the United Mine Workers of America International Union said in the petition for a writ of mandamus.
"The situation confronting miners is urgent," and most miners' designation as essential workers only heightens the need for an emergency temporary standard as stay-at-home orders are lifted across the country, the union said.
"In the face of a health emergency causing more deaths in less time than any workplace catastrophe since the passage of the Mine Act, MSHA's refusal to issue an ETS constitutes an abuse of agency discretion so blatant and of 'such magnitude' as to amount to a clear 'abdication of statutory responsibility,'" the petition said.
The United Steelworkers, which also joined the petition, wanted an expedited order giving the agency and the U.S. Department of Labor 30 days to issue an emergency rule.
The DOL said in a statement Thursday that it was "pleased" with the decision.
"MSHA will continue to evaluate the developing situation with COVID-19, enforce the law, and offer guidance to mine operators and miners to keep America's mines safe," the statement said.
The United Mine Workers of America is represented by Mark J. Murphy of Mooney Green Saindon Murphy & Welch PC.
The United Steelworkers are represented by Susan J. Eckert and Joseph M. Santarella Jr. of Santarella & Eckert LLC.
The government is represented by Emily Toler Scott of the U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and Health.
The case is In re: United Mine Workers of America et al. v. Mine Safety and Health Administration et al., case number unavailable, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Additional reporting by Braden Campbell and Kevin Stawicki. Editing by Michael Watanabe.
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