By: Nicholas W. Scala

Mine operators still face new requirements to reduce worker exposures to coal mine dust after an Appeals Court panel rejected industry arguments that MSHA exceeded its authority and failed to show the rule’s feasibility when it was finalized two years ago.

The Eleventh Circuit Court of Appeals denied pre-enforcement petitions from two mining industry groups and several companies filed after the May 2014 issuance of the rule. The decision means, among other big changes, that MSHA can now cite employers for a worker’s single-shift overexposure  to respirable coal dust – one of the most contentious aspects of the rule.

Industry first challenged the rule in both the Eleventh and Sixth Circuits in hopes of litigating the case in favorable venue; the Courts eventually consolidated the cases in the Atlanta-based Circuit.

A three-judge panel in throwing out the challenges to the rule concluded:

“MSHA acted consistently with its statutory authority in promulgating the New Dust Rule; the statute, read as a whole, clearly delegates regulatory authority for the matters covered by the New Dust Rule to its authority alone. Substantively, MSHA’s decisions comport with the requirements of the statute and are not otherwise arbitrary, capricious, or an abuse of discretion.”

The Court opinion allows MSHA to continue with enforcement activity on a myriad of new requirements. MSHA noted in the final rule that the new regulations:

• Lower the existing exposure limits;
• Provide for full-shift sampling;
• Redefine the term “normal production shift;”
• Add reexamination and decertification requirements for persons certified to sample for dust, and maintain and calibrate sampling devices;
• Provide for single shift compliance sampling by MSHA inspectors;
• Establish sampling requirements for mine operators’ use of the Continuous Personal Dust Monitor;
• Requires operator corrective action on a single, full-shift operator sample; and
• Changes the averaging method to determine compliance on operator samples, expands requirements for medical surveillance of coal miners.

Industry had credible grounds for challenging the new regulations. In their post-final-rule petitions, the National Mining Association, Alabama Coal Association, and 16 companies in the consolidated suit challenged MSHA’s authority under the Federal Mine Safety and Health Act of 1977 to issue the rule, arguing that on many subjects covered by the rule, the Agency was required to act in concert with NIOSH before issuing the rule. They also raised detailed objections to numerous substantive parts of the rule.

The three-judge panel, however, rejected both parts of the challenge but in a discussion, referenced an earlier Eleventh Circuit opinion, also involving the National Mining Association, to re-emphasize that MSHA has to meet the economic feasibility test.

The Court noted in that 1998, the association challenged MSHA’s rescission – in concert with NIOSH – that year of a 1972 Joint Finding with NIOSH that a single-shift testing scheme would not accurately measure the atmospheric conditions during the shift.

NMA challenged the 1998 finding on the ground that MSHA had failed to comply with the procedural requirements of section 101 of the Mine Act, specifically, section 101(a)(6), that MSHA demonstrate feasibility, use the best available evidence and latest scientific data, and assure that no miner will suffer a material health impairment. MSHA responded at the time that it was not required to follow the section in order to rescind the earlier finding, and even if it was, did not have to meet specific requirements that were not “procedure-setting.”

The Court granted NMA’s petition and vacated the 1998 Joint Finding on the basis that MSHA was required to follow all of the section’s requirements to rescind the earlier finding, but had failed to demonstrate economic feasibility, making the rescission invalid.

Following that decision, MSHA and NIOSH jointly proposed rescinding the 1972 finding and went through notice and comment, public hearings, and two reopenings or extensions of the record, the latter specifically on technology for testing the Continuous Personal Dust Monitor.

MSHA later issued a rule concerning standards for approval of such devices, and NIOSH issued an approval, but the plan to rescind the 1972 Joint Finding never was completed.

Circuit Judges in the recent coal dust opinion said MSHA, in the new rulemaking, addressed the Court’s concerns in the NMA decision that the Agency had failed to determine the economic feasibility of single-shift sampling. MSHA also had reopened the record and extended the comment period three times, they noted.

While saying there was no question MSHA was required to meet the economic feasibility test in the new rule, the Court found:

“After reviewing the record, including the extensive economic analysis undertaken by MSHA and the critique of that analysis submitted by the petitioners, we must conclude that MSHA has fulfilled its responsibility and was entitled to make the conclusions that it did.”

With industry’s legal challenges dismissed, MSHA can be expected to proceed fully ahead with rigorous enforcement. Employers should also be on the lookout for more rulemaking activity in the area of coal dust, especially since OSHA just issued a new rule reducing exposure limits to crystalline silica dust, suggesting an MSHA move to adopt those limits is likely on the horizon.