But the US Court of Appeals for the District of Columbia Circuit also ruled in the Tuesday decision that the United Mine Workers of America, which appealed aspects of the rule to the court, didn't make a case for more living space for each miner, or "volume," in its arguments.
"We are pleased that the court agreed with us with respect to the critical need for adequate training regarding the use of underground refuge chambers," UMWA spokesman Phil Smith said Tuesday.
"We are very hopeful that the Mine Safety and Health Administration under the current administration will develop rules that will lead to a higher level of training for miners. We hope miners will never have to deploy a refuge chamber in a real emergency, but its imperative that they receive an adequate level of training in the event that they do have to," he added.
A rule requiring refuge chambers for underground mines came out of the 2006 Mine Improvement and New Emergency Response Act enacted by Congress in response to a number of deadly underground mine accidents that year.
Those accidents included two in January alone--the explosion at International Coal Group's Sago mine, in which 12 miners died, and an underground mine fire at Massey Energy subsidiary Aracoma Coal's Alma No. 1mine that led to the death of two workers.
In December 2007, Congress directed the Labor Secretary to propose regulations consistent with the recommendations of the National Institute of Occupational Safety and Health requiring rescue chambers, or facilities that afford at least the same measure of protection, not later than June 15, 2008, and to finalize the regulations not later than December 31, 2008.
On June 16, 2008, MSHA published a notice of proposed rulemaking and, following the receipt of comments, promulgated the final rule on December 31, 2008. The UMWA then petitioned for review of the miner training and refuge volume provisions in the final rule.
The union argued before the court on September 13 that NIOSH recommended more frequent training in the proper deployment of the refuge chambers, contrary to what the MSHA rule stated. The UMWA said that "[t]o adequately protect miners in the post-accident situation, the training protocol must require hands-on training at least every 90 days."
UMWA SAYS 60 CUBIC FEET NOT ENOUGH SPACE
The NIOSH report also recommended, according to the appeals court's decision, "providing at least 15 square feet of unrestricted floor space and at least 85 cubic feet of unrestricted volume per miner in the refuge alternatives to enable miners to perform basic functions...However, the report advised that '[t]he values listed...should not be considered as absolute, but rather as reasonable starting points for specifications.'"
MSHA proposed and the UMWA objected to a refuge chamber providing 60 cubic feet per miner, including 15 square feet of floor space. The court denied UMWA's objection to this provision of the rule.
"We grant the petition with respect to the training requirement for miners and remand the Final Rule for MSHA to explain the basis for requiring 'hands-on' training only annually rather than quarterly," the court said.
"Although the training provision is, as statutorily required, 'consistent with' the recommendations of NIOSH, these requirements are nonetheless arbitrary and capricious because MSHA has not explained the basis for them other than to state it relied upon its 'knowledge and expertise,'" it said.
"A conclusory statement is inadequate when expert evidence in the rulemaking record indicated why quarterly hands-on training was necessary and MSHA itself had identified problems of skill degradation," it added.
On the provision for minimum refuge volume per miner, court said that "the final rule was a logical outgrowth of the proposed rule: MSHA gave interested parties sufficient notice and opportunity for comment. The provision also is neither arbitrary nor capricious."
MSHA officials did not respond to requests for comment Tuesday.
The National Mining Association, which filed as an intervenor in the case on behalf of MSHA, likewise declined comment on the decision. "This is a UMWA filing and we'll just sit this one out...at least until there's some agreed upon decision we may want to comment about later," NMA spokesman Luke Popovich said Tuesday.
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