                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2003

Secretary Labor v. Rothermel
Precedential or Non-Precedential: Precedential

Docket 02-2721




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                        PRECEDENTIAL

                                      Filed May 2, 2003

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                  No. 02-2721


    ELAINE L. CHAO, SECRETARY OF LABOR;
    UNITED STATES DEPARTMENT OF LABOR
                        v.
           RANDY ROTHERMEL, JR.;
             CINDY ROTHERMEL;
       D & F DEEP MINE COAL COMPANY
                     Randy Rothermel, Jr. and
                     Cindy Rothermel, individually
                     and d/b/a D&F Deep Mine
                     Coal Company,
                               Appellants

                   APPEAL FROM
      THE UNITED STATES DISTRICT COURT
  FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
               (D.C. No. 02-cv-00202)
  District Judge: The Honorable James M. Munley

           ARGUED January 22, 2003
Before: BECKER, Chief Judge, NYGAARD and AMBRO,
                  Circuit Judges.

               (Filed: May 2, 2003)
                            2


                     James P. Wallbillich, Esq. (Argued)
                     Anthony S. Odorizzi, Esq.
                     Cerullo, Datte & Wallbillich
                     450 West Market Street
                     P.O. Box 450
                     Pottsville, PA 17901
                       Counsel for Appellants
                     Jack Powasnik, Esq. (Argued)
                     United States Department of Labor
                     Office of the Solicitor
                     1100 Wilson Boulevard
                     22nd Floor
                     Arlington, VA 22209
                       Counsel for Appellees


                OPINION OF THE COURT

NYGAARD, Circuit Judge.

                            I.
  Appellants Randy Rothermel, Jr. and Cindy Rothermel
own and operate the D&F Deep Mine Coal Company, an
anthracite coal mine in Schuylkill County, Pennsylvania.
After Randy Rothermel prevented a Mine Safety and Health
Administration    (MSHA)    inspector    from   conducting
respirable dust sampling, the District Court issued a
temporary restraining order and a preliminary injunction
prohibiting Rothermel from interfering with the MSHA in
carrying out the provisions of the Federal Mine Safety and
Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 801.
Approximately two months later, Randy Rothermel again
prevented a MSHA inspector from entering the mine. The
MSHA issued a citation and an order, and the Secretary of
Labor requested a preliminary injunction and a permanent
injunction in the District Court for the Middle District of
Pennsylvania. Appellants contend on appeal that the
District Court erred by granting this permanent injunction
enjoining Appellants from interfering with the Mine Act
                                    3


inspection activities. We review questions of law de novo.
Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir. 2002), and the
District Court’s grant of a permanent injunction under an
abuse of discretion standard. Ameristeel Corp. v. Int’l Bhd.
of Teamsters, 267 F.3d 264, 267 (3d Cir. 2002). We will
affirm.

                                   II.
   Appellants’ first contention, that the MSHA’s conducting
bi-monthly respirable dust samplings under the Guidelines
is “unsupported by legal authority,” is far from the truth.
Section 103(a) gives the government ample authority. In
Consolidation Coal Co. v. Federal Mine Safety and Health
Review Comm’n, we explicitly interpreted § 103 of the Act,
and specifically the “expansive language” of § 103(a). 740
F.2d 271, 272-73 (3d Cir. 1984).1 We stated that,
     [a]s part of the overall plan, section 103 of the Act
     provides that the Secretary should make frequent
     inspections each year for the purpose of:
     ‘(1) obtaining, utilizing, and disseminating information
     relating to health and safety conditions, the causes of
     accidents, and the causes of diseases and physical
     impairments originating in such mines:
     (2) gathering information with respect to mandatory
     health or safety standards;
     (3) determining whether an imminent danger exists;
     and

1. In Consolidation Coal Co., a federal mine inspector conducted a spot
inspection at a Consolidation Coal mine. A miner representative
accompanied the inspector on his tour of the mine. After having learned
that the company failed to pay the miner representative for the time
spent on the inspection, another inspector from the Mine Administration
issued a citation for a violation of § 103(f) of the Mine Act. The company
contended that the Act’s allowance of compensation to the miner
representative applied to only “regular” and not to “spot” inspections. We
held that the Court of Appeals for the District of Columbia Circuit
correctly interpreted the Mine Act as requiring payment of compensation
to miner representatives on all inspections.
                             4


    (4) determining whether there is compliance with the
    mandatory health or safety standards.’
    30 U.S.C. § 813(a).
Id. We further explained:
    [A]lthough subsection 103(a) mandates only the
    ‘regular’ inspection, it also directs the Secretary to
    develop ‘guidelines for additional inspections.’ In
    addition to the subjects to be covered by the
    mandatory regular inspections, the Secretary is
    required to make frequent inspections to obtain
    information about ‘health and safety conditions,’ as
    well as ‘mandatory health or safety standards.’
Id. at 273. We explicitly held in Consolidation Coal that
“spot inspections of the type challenged here are authorized
by and made ‘pursuant to subsection 103(a).’ The narrow
reading urged by the company is inconsistent with the
declared intent of Congress to promote safety in the mines
and encourage miner participation in that effort.” Id.
  Here, we continue to read § 103(a) broadly, and conclude
that this legislation provides the MSHA with significant
authority to conduct bi-monthly respirable dust samplings.
  Appellants next argue that § 202 only allows “mine
operators” — not the MSHA — to conduct dust samplings.
Appellants assert that the MSHA’s authority is limited to
inspections for “obtaining compliance” where a mine
operator is no longer complying with the standards in the
Mine Act and the regulations. Brief for Appellants at 7. We
disagree.
   Section 202(g) states: “The Secretary shall cause to be
made such frequent spot inspections as he deems
appropriate of the active workings of coal mines for the
purpose of obtaining compliance with the provisions of
[Title II].” 30 U.S.C. § 842(g). Appellants stress that the
provision permits spot inspections for “obtaining”
compliance; that is, the MSHA “may only conduct spot dust
inspections to ‘obtain’ compliance, not systematic, periodic
inspections to ‘maintain’ compliance.” Brief for Appellants
at 13.
                             5


   According to this argument, since the mine never fell out
of compliance, the MSHA would not have the authority to
“obtain” compliance. This is semantic nonsense. Appellants’
argument goes nowhere for several reasons. First, the
language of § 202(g) contains no indications that it is meant
to limit § 103(a). Second, Congress could not have intended
to limit the MSHA to dust inspections only when an
operator was “out of compliance” with the dust standards.
If this were the case, the MSHA would be at the mercy of
the mine operator’s own dust sampling, without any
independent means of verifying the mine operator’s
reporting. Granting the MSHA the means to test the
accuracy of the mine operator’s sampling is consistent with
Congress’s intent to eliminate miners’ exposure to elevated
respirable dust levels.
  Appellants also argue that § 103(e) precludes these
inspections because the MSHA cannot develop guidelines
“duplicative” of those already provided. Brief for Appellants
at 8. Section 103(e) states:
    Any information obtained by the Secretary . . . under
    this chapter shall be obtained in such a manner as not
    to impose an unreasonable burden upon operators,
    especially those operating small businesses . . . .
    Unnecessary duplication of effort in obtaining
    information shall be reduced to the maximum extent
    possible.
30 U.S.C. § 813(e). Specifically, the Appellants contend that
the MSHA’s interpretation that § 103(a) authorizes the
agency to conduct respirable dust inspections duplicates
the Appellants’ own dust sampling activities. Brief for
Appellants at 15. This assertion is meritless.
  Appellants’ own dust sampling gives only the operator’s
recording of the dust levels to which miners are exposed.
The MSHA’s inspections serve as a check against
inaccurate or unreliable sampling by the mine operators.
The MSHA’s inspections also determine whether other areas
need to be monitored by the operator. In addition, the
MSHA’s inspections have other purposes, including
determining whether the operator is complying with the on-
shift examination provisions of 30 C.F.R. § 75.362(a)(2),
                              6


whether the dust control measures actually in use differ
from those stipulated in the approved plan, and whether
miners are being exposed to excessive levels of respirable
crystalline silica. Therefore, because the inspections carried
out by the MSHA have different functions and purposes
from Appellants’ testing, they are not “unnecessarily
duplicative.”
   Appellants next contend that the guidelines at issue in
this case “are invalid because they were not properly
promulgated by publication in The Federal Register.” Brief
for Appellants at 8. At the close of the preliminary
injunction hearing, the District Court found the Guidelines
did not require publication because they “do not alter or
affect the existing respirable dust standards, and they do
not place additional substantive burdens on mine operators
to    comply    with   those    standards.”   Dist.  Court.
memorandum, p.6. The issue is therefore whether these
Guidelines are exempt from the requirement of notice-and-
comment rulemaking.
   “Legislative” rules that impose new duties upon the
regulated party have the force and effect of law and must
be promulgated in accordance with the proper procedures
under the Administrative Procedures Act (APA). Beazer
East, Inc. v. EPA, 963 F.2d 603, 606 (3d Cir. 1992). The
APA requires also that general notice of the proposed
regulation be published in the Federal Register and
interested persons be given an opportunity to comment on
the proposed rule. Id. “Interpretive” rules, on the other
hand, seek only to interpret language already in properly
issued regulations. Id. If the agency is not adding or
amending language to the regulation, the rules are
interpretive. Id. Interpretive, or “procedural,” rules do not
themselves shift the rights or interests of the parties,
although they may change the way in which the parties
present themselves to the agency. Chamber of Commerce of
the United States v. U.S. Dep’t of Labor, 174 F.3d 206, 211
(D.C. Cir. 1999). Interpretive or procedural rules and
statements of policy are exempted from the notice and
comment requirement. 5 U.S.C. § 553(b)(A).
  The Coal Mine Health Inspection Procedures Handbook
sets forth inspection procedures developed by the MSHA
                                 7


under § 103(a) of the Mine Act. Specifically, the Guidelines
set forth procedures for the MSHA inspectors to follow in
determining whether there is compliance with already
existing mandatory health standards, such as dust
concentration levels, drill dust controls, and ventilation
plans. 30 C.F.R. §§ 70.100, 72.620, 75.362(a)(2). The
Handbook Guidelines do not alter the existing health
standards, and they do not place additional burdens on
mine operators to comply with those standards.2 Mine
operators must comply with the Mine Act standards
regardless of how the MSHA enforces them, or whether it
performs respirable dust inspections. These Guidelines do
not determine substantive rights, but merely outline a
uniform plan for the MSHA inspectors around the country
to effectively inspect mines.
  If the Guidelines have a substantive adverse impact on
the challenging party, they are “legislative.” FLRA v. U.S.
Dep’t of the Navy, 966 F.2d 747, 763 (3d Cir. 1992). Here,
however, there is no such impact on the Appellants. Under
the Guidelines, mine operators are simply required to
comply with the respirable dust standards. The only
additional responsibility created by the Guidelines is for the
mine operators to allow the MSHA inspectors into their
mines for inspections. This responsibility does not produce
a substantial impact on operators because the inspections
are conducted during a normal operating shift so as not to
interfere with Appellants’ production activities.
  In addition, the Guidelines are not intended to be used
by anyone other than agency employees. In Gatter v.
Veteran’s Administration, one of the elements we used to
determine whether guidelines were “interpretive” was
whether they were intended to be used by anyone other
than the agency employees. 672 F.2d 343, 347 (3d Cir.
1982) (holding agency’s internal manuals to be non-
substantive rules). Therefore, this weighs in favor of the
Guidelines as “interpretive.”

2. Appellants do not claim that the MSHA’s dust inspections impose an
unreasonable burden, and the undisputed evidence shows that they do
not.
                             8


   The Government argues that the fact that Congress used
the word “guidelines” provides evidence that Congress did
not intend to require notice-and-comment rulemaking. It is
true that, by using the term “guidelines,” Congress did not
mandate notice-and-comment rulemaking, as we might
have concluded it had done had it directed the Secretary to
issue regulations or promulgate standards. But by using
the word “guidelines,” Congress does not necessarily
indicate its intent to exempt the agency from notice-and-
comment rulemaking requirements. In some instances,
guidelines must be promulgated using notice-and-comment
rulemaking; in other instances, notice-and-comment
rulemaking is not required. Compare 13 U.S.C. §1344(b)
(provision of Clean Water Act required Administrator to
develop guidelines for permit issuance; resulting guidelines
were published at 40 C.F.R. § 230.10(a)(2)) with Better Gov’t
Ass’n v. Dept. of State, 780 F.2d 86, 89 (D.C. Cir. 1986)
(congressional subcommittee recommended that state
develop guidelines for evaluating Freedom of Information
Act waiver requests; guidelines were not promulgated using
notice-and-comment rulemaking). It is not whether
Congress uses the term “guidelines” that determines
whether the agency must proceed through notice-and-
comment rulemaking. Rather, as discussed previously in
this opinion, it is whether the resulting guidelines
constitute procedural or legislative rules.
  Therefore, because the MSHA’s respirable dust sampling
policy is a rule of agency procedure which does not impose
a new substantive burden on mine operators, and was not
intended by Congress to comprise new standards or
regulations, we hold that the Guidelines are interpretive
rules, and thus exempt from the requirements of notice-
and-comment rulemaking.
  We reject Appellants’ final attempt to prevent the MSHA
inspectors from entering their mine by concluding that the
MSHA satisfied the requirements for a permanent
injunction. A court may issue a permanent injunction
where the moving party has demonstrated that: (1) the
exercise of jurisdiction is appropriate; (2) the moving party
has actually succeeded on the merits of its claim; and (3)
the “balance of equities” favors granting injunctive relief.
                                9


Ciba-Geiby Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844
(3d Cir. 1984). Appellants assert that the Government failed
to establish the merits underlying its claim or to
demonstrate that the equities favored the granting of an
injunction. Appellants lose both of these arguments.
   First, as explained above, the Government did show that
it has actually succeeded on the merits of its claim. Second,
Appellants’ argument that the Government failed to
demonstrate that the “balance of equities” favors granting
injunctive relief is nothing but a confusing mosaic of
irrelevant    evidence.  Appellants     describe   how    the
Government was “sounding-off about Mr. Rothermel’s
alleged prior history,” Brief for Appellants at 24, and how
previous district court proceedings were “never fully
litigated” because “[t]he District Court merely issued a
preliminary injunction against Defendants pro se” [sic].
Brief for Appellants at 25.
   In fact, none of Appellants’ arguments are germane to the
issue of whether the “balance of equities” favors injunctive
relief. Rather, the District Court was correct in finding that
the balance of equities favored injunctive relief because not
only does the MSHA’s respirable dust inspections not
interfere with Appellants’ activities, but the danger resulting
from Appellants’ denial of entry to the MSHA inspectors
could be significant. Appellants’ denial of entry to the
agency inspectors results in a drain on the agency’s
resources and, more importantly, elevated dust levels would
present a danger to miners.
  In sum, and for the foregoing reasons, we will affirm.


A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
