Appeals court upholds 2014 coal dust rule issued by MSHA

A three-judge panel at the U.S. Eleventh Circuit Court of Appeals on Jan. 25 ruled for the U.S. Mine Safety and Health Administration in an appeal filed by coal industry groups over a rule limiting coal dust exposure for coal miners.

In May 2014, the U.S. Secretary of Labor, who oversees MSHA, had published in the Federal Register a final rule entitled “Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors.” Two separate groups representing the coal industry then brought pre-enforcement challenges in the Courts of Appeals for the Sixth and Eleventh Circuits. The Panel on Multidistrict Litigation consolidated the challenges in the Eleventh Circuit.

The petitioners, including the National Mining Association and the Alabama Coal Association, first challenge the authority of MSHA, an agency within the Department of Labor, to issue the rule under the Federal Mine Safety and Health Act of 1977 (Mine Act). Specifically, the petitioners argued that, on many of the subjects covered by the rule, MSHA is required to act in concert with the Secretary of Health and Human Services (HHS) and her designee, the National Institute for Occupational Safety and Health (NIOSH).

Second, the petitioners challenge the substance of the rule, raising a variety of detailed objections.

“On the first challenge, we now conclude that, consistent with the plain language of the statute and with the earlier precedent of this court, the statute as amended clearly evinces a congressional intent that, although it must consider the advice of NIOSH, MSHA has the sole responsibility to issue regulations covering the subjects addressed by this rule,” said the Jan. 25 ruling. “Here, as anticipated by the statute, MSHA received the views of NIOSH on every required topic. Nothing more is required.”

The court order added: “With respect to the second challenge, we conclude that MSHA’s decades-long effort, culminating in the publication of this rule, adequately took into account the scientific evidence of record and arrived at conclusions which, given MSHA’s expertise, are worthy of deference. We therefore deny the petitions for review.”

The challenged dust rule phases in a series of significant changes to respirable dust regulations over a two-year period, beginning in August 2014. The first phase saw the implementation of three basic changes: mine operators began to take air quality samples over the entire shift of a miner rather than over a maximum of eight hours, or a miner’s shift, if shorter; mine operators were required to take samples over a “normal production shift,” now defined as one in which the amount of material produced is “at least equal to 80 percent of the average production recorded by the operator for the most recent 30 production shifts” rather than one where production was only required to be at least 50 percent of the average of the prior five bimonthly samples; and for the first time, compliance determinations would be based on Excessive Concentration Values.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.