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Law360 (June 17, 2020, 3:47 PM EDT) -- A coalition of mining and steel unions urged the D.C. Circuit on Tuesday to make the Mine Safety and Health Administration issue a rule requiring employers to protect miners from COVID-19, saying 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" to only issue 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, wants an expedited order giving the agency and the U.S. Department of Labor 30 days to issue an emergency rule.
The new lawsuit comes just a week after the D.C. Circuit shut down the AFL-CIO's lawsuit that sought to make the DOL's workplace safety arm issue an emergency rule requiring employers to protect workers from the virus. The appeals court denied the labor federation's petition for a writ of mandamus, citing the "considerable deference" the court owes the agency.
The Mine Workers 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 Tuesday has no factual basis.
"Working in a mine is very different from working in any other workplace," Roberts said. "The air is circulated throughout the mine, meaning an airborne disease like COVID-19 can spread among workers who are far removed from one another. A six-foot social distance is meaningless in an underground environment."
Representatives for the Mine Safety and Health Administration did not immediately respond to requests for comment.
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.
Counsel information for MSHA was not immediately available.
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. Editing by Orlando Lorenzo.
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