National Mining Association v. Secretary, U.S. Department of Labor
812 F.3d 843
| 11th Cir. | 2016Background
- MSHA promulgated the "New Dust Rule" (79 Fed. Reg. 24,814 (2014)) to lower respirable coal mine dust (RCD) exposures, phase in continuous personal dust monitors (CPDMs), shorten sampling to single-shift measurements, increase sampling frequency, and lower PELs to 1.5 mg/m3 (with lower values for certain areas/miners).
- Industry petitioners (National Mining Ass'n and Murray Energy groups) brought pre-enforcement challenges consolidated in this court contesting (a) MSHA’s statutory authority to promulgate the rule without joint promulgation with HHS/NIOSH and (b) the rule’s substance (accuracy of single-shift sampling, CPDM reliability, silica treatment, economic and technological feasibility).
- Statutory framework: Mine Act vests rulemaking authority in the Secretary of Labor (acting through MSHA) but requires MSHA to consider NIOSH/HHS recommendations and incorporates legacy Coal Act provisions (including a 1972 Joint Finding that had favored multi-shift averaging).
- Procedural and record history: MSHA undertook extensive notice-and-comment rulemaking, supplemented by a separate CPDM approval rule and NIOSH analyses; this followed earlier litigation (National Mining Ass’n v. Sec’y of Labor) that vacated prior agency action for inadequate feasibility analysis.
- District/agency findings: MSHA concluded single-shift sampling meets the NIOSH Accuracy Criterion, CPDMs are sufficiently accurate/reliable for compliance measurement, Excessive Concentration Values (ECVs) account for sampling uncertainty, and the rule is technologically and economically feasible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to promulgate (need for joint HHS/NIOSH promulgation) | Mine Act §202 provisions and 1972 Joint Finding require joint action by Labor and HHS for major dust rules; rescission requires joint decision. | Statutory scheme vests development/promulgation of improved mandatory health standards in the Secretary of Labor (§101/§201); MSHA must consider NIOSH but need not co-sign promulgation. | Court: MSHA has authority to promulgate the New Dust Rule alone after considering NIOSH; prior precedent (National Mining) controls that §101 governs such rulemaking. |
| Single-shift sampling accuracy and use for citations | Single-shift sampling is more variable, risks inaccurate citations, and statute requires accuracy that multi-shift averaging better achieves. | Advances in sampling tech and NIOSH Accuracy Criterion support single-shift sampling; ECVs provide margin for measurement error; statute contemplates single-shift default. | Court: MSHA reasonably found single-shift sampling "accurate" under the statutory test and NIOSH criterion; use for enforcement (with ECVs) is lawful. |
| Mandatory adoption of CPDM (technical feasibility/reliability) | CPDMs have high malfunction rates, field variability, interference, and do not measure silica; availability and ergonomic burdens make required deployment infeasible. | NIOSH and MSHA testing shows CPDM meets the Accuracy Criterion; many petitioner data flaws are explainable (field variability, status/error codes); contingency and phase-in plans exist. | Court: MSHA gave reasoned responses; reliance on NIOSH data was reasonable; agency action not arbitrary regarding CPDM feasibility. |
| Silica-related limits and measurement | New rule effectively imposes stricter silica PELs and does so without real-time silica measurement; feasibility questionable. | Rule preserves the longstanding 0.1 mg/m3 quartz limit and uses proportional RCD reductions when quartz exceeds thresholds; MSHA may use proxy/sample analysis and consider silica in future rulemaking. | Court: MSHA’s approach is consistent with prior rules and is reasonable; no new illicit PEL created and the proxy method is permissible. |
| Cumulative technological/economic feasibility | Petitioners claim MSHA failed to analyze cumulative burdens and underestimated compliance costs (production delays, replacements). | MSHA conducted extensive economic analysis, revised proposals to improve feasibility (e.g., 1.5 mg/m3 vs. 1.0 mg/m3, reduced sampling burdens, ECVs), and found costs would not threaten industry viability. | Court: MSHA met feasibility requirements and provided a reasoned economic assessment; petitioners merely invite reweighing of evidence, which court will not do. |
| Use of respirators in lieu of engineering controls | Petitioners urged allowing respirators to satisfy standards (as substitute/offset). | Statute forbids substitution of respirators for environmental controls; respirators may be used as secondary/temporary measures but not to meet air-quality standards. | Court: MSHA correctly interpreted and applied the statutory prohibition against substituting respirators for engineering/environmental controls. |
Key Cases Cited
- National Mining Ass’n v. Sec’y of Labor, 153 F.3d 1264 (11th Cir.) (prior decision requiring full §101 process for single-shift transition)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency rulemaking)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency statutory interpretation framework)
- Am. Mining Cong. v. Marshall, 671 F.2d 1251 (10th Cir. 1982) (sampling variability and multi-shift discussion; deference to MSHA methods)
- Kennecott Greens Creek Mining Co. v. MSHA, 476 F.3d 946 (D.C. Cir. 2007) (deference to agency scientific judgments on feasibility)
- Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989) (deference when specialists express conflicting scientific views)
- Color Pigments Mfrs. Ass’n v. OSHA, 16 F.3d 1157 (11th Cir. 1994) (economic feasibility standard for workplace safety rules)