NATIONAL MINING ASSOCIATION, Alabama Coal Association, Walter Energy, Inc., Warrior Investment Co., Inc., Petitioners, v. SECRETARY, U.S. DEPARTMENT OF LABOR, Mine Safety And Health Administration, Respondents. Murray Energy Corporation, American Energy Corporation, the Ohio Valley Coal Company, the American Coal Company, OhioAmerican Energy, Incorporated, UtahAmerican Energy, Incorporated, West Ridge Resources, Incorporated, KenAmerican Resources, Incorporated, Murray American Energy, Incorporated, the Harrison County Coal Company, the Marion County Coal Company, the Marshall County Coal Company, the Monongalia County Coal Company, the Ohio County Coal Company, Petitioners, v. Secretary of Labor, Mine Safety and Health Administration, Respondents.
Nos. 14-11942, 14-12163
United States Court of Appeals, Eleventh Circuit
Jan. 25, 2016
812 F.3d 843
Edward Waldman, Samuel Charles Lord, U.S. Department of Labor Office of the Solicitor, Arlington, VA, for Respondents.
Before WILSON, FAY and RIPPLE*, Circuit Judges.
RIPPLE, Circuit Judge:
TABLE OF CONTENTS
- I. Background.................................................................................................... 848
- A. Summary of the New Dust Rule ..................................................................... 848
- B. Positions of the Parties................................................................................ 850
- II. Legislative and Regulatory Context ................................................................... 852
- A. Early Regulation of the Mining Industry and the Coal Act ................................ 852
- B. The Mine Act ............................................................................................. 855
- C. Regulatory History Following the Mine Act...................................................... 858
- III. MSHA‘s Authority to Regulate .......................................................................... 860
- A. The Statutory Provisions ............................................................................. 860
- B. The Authority to Impose Single-Shift Sampling .............................................. 862
- C. The Authority to Enact Other Substantive Regulations .................................... 863
- IV. Substantive Challenges: The Content of the New Dust Rule.................................... 864
- A. Standard of Review ..................................................................................... 864
- B. Single-Shift Sampling .................................................................................. 866
- 1. Statutory and accuracy-related challenges ................................................. 867
- 2. Feasibility of single-shift sampling ............................................................ 871
- C. Technological Feasibility of Other Major Provisions of the New Dust Rule ................................................................................................... 872
- 1. Mandatory use of the CPDM ..................................................................... 873
* Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation.
- a. Accuracy challenges to the CPDM ...................................................... 873
- b. Assumptions underlying MSHA data and requests to supplement the record before the court ............................................................. 874
- c. Malfunction rate of the CPDM ............................................................ 876
- d. Performance at varying temperatures and humidities ............................ 877
- e. CPDM as an impediment to miners’ ability to perform work .................... 877
- f. Availability of the CPDM ................................................................... 878
- 2. The silica standards .................................................................................. 878
- 3. The cumulative effect of the New Dust Rule‘s changes .................................. 880
- D. Economic Feasibility ..................................................................................... 880
- E. Other Challenges .......................................................................................... 882
- 1. National regulation ................................................................................... 882
- 2. Use of respirators to achieve air quality standards....................................... 884
- 3. Experience under other health and safety laws............................................ 884
Conclusion ............................................................................................................... 884
On May 1, 2014, the Secretary of Labor published in the Federal Register a Final Rule for the Mine Safety and Health Administration (“MSHA“) entitled Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 79 Fed.Reg. 24,814 (codified at
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. Here, as anticipated by the statute, MSHA received the views of NIOSH on every required topic. Nothing more is required. 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.
I. Background
A. Summary of the New Dust Rule
For nearly sixty years, Congress and various federal agencies working at its behest have worked to improve safety and health standards for workers in our Nation‘s mines. A primary focus of this ef-
In 2010, MSHA, acting alone, proposed the New Dust Rule to address RCD and its known health outcomes. Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 75 Fed.Reg. 64,412 (proposed Oct. 19, 2010). In our review of an earlier and very similar regulatory attempt, National Mining Ass‘n v. Secretary of Labor, 153 F.3d 1264, 1269 (11th Cir.1998), we expressed concern that MSHA‘s effort had failed to determine the economic feasibility of single-shift sampling, the same monitoring process at issue in this case. In response to our decision, MSHA initiated a new rulemaking and, as part of that process, issued an economic analysis addressing that concern. It also opened the record for comment and extended the comment period three times, finally closing it in June 2011. After making alterations to respond to the comments received to its proposed rule, MSHA promulgated its final rule in 2014. 79 Fed.Reg. 24,814.
The New Dust Rule phases in a series of significant changes to RCD regulations over a two-year period, beginning in August 2014. The first phase saw the implementation of three basic changes: (1) 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,
In the next phase, commencing in February 2016, operators must use Continuous Personal Dust Monitors (“CPDMs“) to measure concentrations in the dustiest jobs at each section.
In the final phase, beginning in August 2016, the maximum acceptable concentration limit of RCD reduces to 1.5 milligrams per cubic meter (mg/m³).
B. Positions of the Parties
Within this context, we address the contentions of the parties. The petitioners submit that MSHA has exceeded its authority. They first maintain that, by promulgating the New Dust Rule, the Secretary of Labor has rescinded unilaterally a 1972 Joint Finding of the Secretaries of Labor and of HHS under section 202(f) of the Mine Act,
Turning to the substance of the New Dust Rule, the petitioners take issue with the sampling regime set up by that regulation. Noting that section 202(a) of the Mine Act,
The Secretary of Labor takes, as might be expected, a distinctly contrary view. He maintains that the Mine Act, through section 101(a),
Turning to the petitioners’ substantive objections, the Secretary maintains that he reasonably determined that single-shift sampling accurately represents the average concentration of respirable dust in the mine during each shift. He points out that sampling methods and technology have improved since the 1972 Joint Finding and that studies have determined that single-shift sampling meets the criterion for accuracy recommended by NIOSH. Relying on standards developed by MSHA and NIOSH, a research entity within the Department of HHS, he further maintains that CPDMs are accurate and reliable instruments for the measurement of coal dust and will be available by the designated implementation date. He rejects the argument that respirators are more effective than the new device; in his view, the statute requires mine operators to comply with air quality standards without resort to respirators. He further maintains that the cost of compliance with the New Dust Rule amounts to less than one percent of annual revenues.
Accordingly, the Secretary urges us to determine that the New Dust Rule is technologically and economically feasible.
II. Legislative and Regulatory Context
A. Early Regulation of the Mining Industry and the Coal Act
Before we analyze the specific challenges brought to us by the parties, we pause to give these submissions historical context by examining the overall statutory and regulatory scheme that governs mine health and safety issues in the United States.
From the late 19th century until the middle 20th, Congress enacted several discrete measures to increase mine safety. These measures established some minimum safety requirements, prohibited labor by children under twelve, established the Bureau of Mines in the Department of the Interior, and in 1947, authorized the development of safety regulations.6 Despite these efforts, mining, an essential occupation to the commercial health of a growing industrial society, remained one of the most dangerous occupations in the Nation. In 1967-68, the Country experienced a series of mine accidents that killed more than 500 miners. In one incident, a devastating mine explosion near Farmington, West Virginia, seventy-eight miners died. See H.R.Rep. No. 91-563, at 1 (1969).
Shortly thereafter, Congress enacted the Federal Coal Mine Health and Safety Act of 1969 (“Coal Act“), Pub.L. 91–173, 83 Stat. 742, codified as amended at
(a) the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource—the miner;
. . . [and]
(c) there is an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation‘s coal mines in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines....
Among other things, it is the purpose of this title to provide, to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentration in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working life without incurring any disability from pneumoconiosis or any other occupation-related disease during or at the end of such period.
At the time of its enactment, the Coal Act was the most comprehensive statute addressing health and safety matters in the Nation‘s mines. It set forth the most stringent requirements to date and, for the
Among the issues covered by the Coal Act was air quality, known to play a significant role in the development of the respiratory diseases common among mine workers. Specifically, section 202 of the Coal Act required coal mine operators to “take accurate samples of the amount of respirable dust in the mine atmosphere to which each miner in the active workings of such mine is exposed.”
Notably, the Coal Act became law during a period when Congress addressed more broadly matters affecting the health and safety of the Nation‘s workforce. In 1970, the year following the passage of the Coal Act, Congress enacted the Occupational Safety and Health Act (“OSH Act“), Pub.L. 91-596, 84 Stat. 1590, codified as amended at
Congress assigned primary responsibility for implementation of the Coal Act to the Secretary of the Interior. Pub.L. 91-173, § 3(a). But the Act also assigned specific responsibility to other cabinet-level Departments, including, importantly, HEW. Section 101 established the procedure by which these Departments would work together to develop the improved standards. The Secretary of the Interior had the responsibility to “develop, promulgate, and revise, as may be appropriate, improved mandatory safety standards for
For improved mandatory health standards, i.e., those items addressed substantively in Title II of the statute, and which are the principal concern of the present rule, the Coal Act required a more complicated process. In this area, the Secretary of HEW had the laboring oar and was to “develop and revise, as may be appropriate, improved mandatory health standards for the protection of life and the prevention of occupational diseases of miners.”
Although section 101 of the Coal Act provided the overarching procedural mechanism for developing improved mandatory standards, several additional provisions played supporting roles. Section 201 designated the relevant dust provisions in section 202 as interim mandatory health standards and provided that they would remain in effect “until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary [of the Interior] under the provisions of section 101 of this Act.”
The Coal Act provided that both safety standards, originating with Interior, and health standards, originating with HEW, were to “be based upon research, demonstrations, experiments, and such other information as may be appropriate.”
The Coal Act specified two separate, sequential mechanisms for determining the average dust concentration.8 For the first eighteen months after enactment, measurements were to be taken “over a number of continuous production shifts.”
Just months after the enactment of the 1969 Coal Act, the Secretary issued his first set of mandatory health standards implementing section 202. See Mandatory Health Standards—Underground Coal Mines, 35 Fed.Reg. 5,544 (Apr. 3, 1970). In 1972, the Secretaries finalized, and published in the Federal Register under the authority of both Departments, a summary Joint Finding that adoption of a single-shift testing scheme would not accurately measure the atmospheric conditions during the shift. Consequently, the multi-test averaging scheme remained in place. See Notice of Finding That a Single Shift Measurement of Respirable Dust Will Not Accurately Represent Atmospheric Conditions During Such Shift, 37 Fed.Reg. 3,833 (Feb. 23, 1972) (“1972 Joint Finding“).
B. The Mine Act
Five years later, in 1977, mining fatalities were still more than four times as great as the average in other industries. H.R.Rep. No. 95-312, at 3 (1977). Dissatisfied with progress under the Coal Act,9 Congress reenacted, amended, and consolidated the Coal Act and various other provisions of law, renaming it the Federal
The Secretary responsible for the health and safety of miners will no longer be the Secretary of the Interior, but rather the Secretary of Labor, who represents an agency that puts the welfare of workers above all other considerations. The committee believes that by transferring administration of the miner health and safety program, and by upgrading legislative provisions applicable to metal and nonmetal miners through consolidation of all miners under one safety law, the Nation will be better able to meet the dual objectives of increased production of mineral and energy resources, and protection of the sacred lives of those members of our society who toil in the mines to keep our country running efficiently.
H.R.Rep. No. 95-312, at 2 (1977) (emphasis added).
In addition to the transfer of principal authority from Interior to Labor, the Mine Act also substantially revised the general regulatory procedures. Under the Coal Act, health standards and safety standards were addressed separately. As we have noted earlier, the development of health standards specifically involved a two-step
in writing by” interested parties, including the Secretary of HHS, NIOSH, or others, the Secretary of Labor “determines that a rule should be promulgated,” he may act.
receives a recommendation, accompanied by appropriate criteria, from [NIOSH] that a rule be promulgated, modified, or revoked, the Secretary must, within 60 days after receipt thereof, refer such recommendation to an advisory committee..., or publish such as a proposed rule... or publish in the Federal Register his determination not to do so, and his reasons therefor.
Perhaps in recognition that many of the Coal Act‘s initial interim standards were either in force in the industry or already had been superseded with improved standards set by initial regulations, see generally 35 Fed.Reg. 5,544, the Mine Act itself made no substantive changes to the Coal Act‘s interim mandatory health standards.16 Within Title II, therefore, specific duties assigned under the Coal Act to the Secretary of HEW (now HHS) were preserved. Among these are a number of provisions with significance to the present case, including section 202(a),
respirable dust in the mine atmosphere.” See also
C. Regulatory History Following the Mine Act
Regulatory work under the Mine Act did not revisit immediately the single-shift is-
shift sampling. In 1996, an advisory committee created by the Department of Labor to which the NIOSH recommendation had been referred also recommended single-shift sampling. See
In 1998, the National Mining Association challenged the 1998 Joint Finding on the ground that MSHA had failed to comply with the procedural requirements of section 101 of the Mine Act,
Following the National Mining decision, MSHA and NIOSH proposed jointly to rescind the 1972 Joint Finding. See Determination of Concentration of Respirable Coal Mine Dust, 65 Fed.Reg. 42,068 (July 7, 2000). They engaged in notice-and-comment procedures and held public hearings. They twice reopened or extended the period to allow further development of the record, specifically on new technology for testing, the CPDM. The CPDM is a technology intended to replace the testing that had been in place since the original enactment of the Coal Act in 1969, namely, the Coal Mine Dust Personal Sampler Unit (“CMDPSU“). Testing with the CMDPSU required filters to be mailed away by operators to MSHA facilities for testing and introduced a delay of at least a week before samples could be processed. The CPDM, by contrast, takes continuous samples and makes them available to the mine and MSHA in real time, thus preventing possible avenues for tampering and enabling operators to implement additional, responsive air quality measures on an as-needed basis.
This administrative action resulted in the promulgation of two rules. First, in 2010, following notice-and-comment procedures, MSHA promulgated new regulations concerning standards for approval of CPDMs. See Coal Mine Dust Sampling Devices, 75 Fed.Reg. 17,512 (Apr. 6, 2010) (codified at
Also in 2010, MSHA, acting alone, proposed the present, comprehensive New Dust Rule. 75 Fed.Reg. 64,412. It issued an economic analysis to address our concerns in National Mining that it had failed to determine the economic feasibility of single-shift sampling. It also opened the record for comment and extended the comment period three times, finally closing it in June 2011. MSHA promulgated its final rule in 2014, with alterations made in response to the comments received to its proposed rule. 79 Fed.Reg. 24,814.
III. MSHA‘s Authority to Regulate
With this background in mind, we now turn to the precise issues presented for our review. We first address whether MSHA acted in accordance with the statute when it promulgated the New Dust Rule under its own authority rather than with the joint participation of NIOSH in the promulgation process. At the outset, we note the narrowness of this question: no one maintains that NIOSH has not participated in, or does not agree with, the determinations made by MSHA. Indeed, it is clear that NIOSH has been proposing many of the same revisions for decades. As counsel for the petitioners told us at oral argument, the question here concerns only the formal process of promulgation and NIOSH‘s failure to sign on the dotted line.
A. The Statutory Provisions
In assessing the contention that the New Dust Rule is infirm simply because of the absence of a joint promulgation by the MSHA and NIOSH, we begin with the language of the statutory sections at issue. Section 101 of the Mine Act provides:
The Secretary [of Labor] shall by rule in accordance with procedures set forth
in this section and in accordance with section 553 of Title 5 (without regard to any reference in such section to sections 556 and 557 of such title), develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.
The next section that concerns us is section 202, which provides, in pertinent part:
(a) Samples; procedures; transmittal; notice of excess concentration; periodic reports to Secretary [of Labor]; contents
Each operator of a coal mine shall take accurate samples of the amount of respirable dust in the mine atmosphere to which each miner in the active workings of such mine is exposed. Such samples shall be taken by any device approved by the Secretary [of Labor] and the Secretary of [HHS] and in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretaries shall prescribe in the Federal Register within sixty days from December 30, 1969 and from time to time thereafter. Such samples shall be transmitted to the Secretary [of Labor] in a manner established by him, and analyzed and recorded by him in a manner that will assure application of the provisions of section 814(i) of this title when the applicable limit on the concentration of respirable dust required to be maintained under this section is exceeded....
....
(d) Promulgation of new standards; procedures
Beginning six months after the operative date of this subchapter and from time to time thereafter, the Secretary of [HHS] shall establish, in accordance with the provisions of section 811 of this title, a schedule reducing the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings is exposed below the levels established in this section to a level of personal exposure which will prevent new incidences of respiratory disease and the further development of such disease in any person. Such schedule shall specify the minimum time necessary to achieve such levels taking into consideration present and future advancements in technology to reach these levels.
(e) Concentration of respirable dust
References to concentrations of respirable dust in this subchapter mean the average concentration of respirable dust measured with a device approved by the Secretary [of Labor] and the Secretary of [HHS].
(f) Average concentration
For the purpose of this subchapter, the term “average concentration” means a determination which accurately represents the atmospheric conditions with regard to respirable dust to which each miner in the active workings of a mine is exposed (1) as measured, during the 18 month period following December 30, 1969, over a number of continuous production shifts to be determined by the Secretary [of Labor] and the Secretary of [HHS], and (2) as measured thereafter, over a single shift only, unless the Secretary [of Labor] and the Secretary
of [HHS] find, in accordance with the provisions of section 811 of this title, that such single shift measurement will not, after applying valid statistical techniques to such measurement, accurately represent such atmospheric conditions during such shift.
The question before us is whether these statutory provisions, read in concert, require joint promulgation of the New Dust Rule or permit the approach taken by MSHA in this case—joint participation in development of the substantive standards, but promulgation by MSHA alone.
B. The Authority to Impose Single-Shift Sampling
In our previous decision, National Mining Ass‘n, 153 F.3d 1264, we examined a jointly promulgated regulation by MSHA and NIOSH in which the agencies had tried to accomplish single-shift sampling under section 202(f),
It is clearly the law of this circuit that the transition to a single-shift sampling regime is a matter to be promulgated by MSHA alone. In holding squarely that this matter is governed by section 101,
the burden borne by the party advocating the abandonment of an established precedent is greater where [we are] asked to overrule a point of statutory construction. Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.
Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989), superseded in part on other grounds by statute, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071; see also Halliburton Co. v. Erica P.
John Fund, Inc. v. United States, — U.S. —, 134 S.Ct. 2398, 2411, 189 L.Ed.2d 339 (2014).C. The Authority to Enact Other Substantive Regulations
We next examine whether the provisions of the New Dust Rule not addressed in section 202(f),
The petitioners invite our attention generally to section 202,
In National Mining, we focused on section 201 of the Mine Act,
The provisions of sections 842 through 846 of this title and the applicable provisions of section 878 of this title shall be interim mandatory health standards applicable to all underground coal mines until superseded in whole or in part by improved mandatory health standards promulgated by the Secretary [of Labor] under the provisions of section 811 of this title, and shall be enforced in the same manner and to the same extent as any mandatory health standard promulgated under the provisions of section 811 of this title. Any orders issued in the enforcement of the interim standards set forth in this subchapter shall be subject to review as provided in subchapter I of this chapter.
Notably, our analysis of section 202(f),
Use of single-shift measurements by MSHA is a health and safety standard. Mandatory health and safety standard is defined, in
§ 802(l) as “the interim mandatory health or safety standards” between§ 841 and§ 846 . Section 842(f) is the basis for single-shift sampling. Furthermore,§ 841(a) refers to§§ 842 -846 as “interim mandatory health standards.” At a minimum, therefore,§ 842(f) is an interim mandatory health standard.§ 841(a) continues, however, to say that the interim mandatory healthstandards of §§ 842 -846 are effective “until superseded in whole or in part by improved mandatory health standards.” Single-shift sampling supersedes multi-shift sampling, which was based on§ 842(f) . Single-shift sampling, therefore, is an “improved mandatory health standard.” According to§ 841(a) , any new standard must be “promulgated ... under the provisions of Section 811.”
153 F.3d at 1267-68 (citations omitted) (emphasis in original). In short, National Mining addressed not simply the proper interpretation of
In deciding National Mining, an earlier panel of this court correctly perceived section 201,
The petitioners nevertheless contend that there is a direct conflict in the statutory language, and the “specific” language of section 202,
Accordingly, we conclude that the Mine Act envisions precisely the approach taken by the relevant agencies here and provides the Secretary of Labor, acting through MSHA, with broad regulatory authority, sufficient to authorize the New Dust Rule.
IV. Substantive Challenges: The Content of the New Dust Rule
A. Standard of Review
In addition to the procedural challenges we already have examined, the industry plaintiffs also challenge the substance of the New Dust Rule. We review the challenges under the Administrative Procedure Act, and shall “hold unlawful and set aside” any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
[U]nder this standard, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute.... The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); accord Miami-Dade Cty. v. U.S. E.P.A., 529 F.3d 1049, 1064 (11th Cir. 2008).
Many of the challenges raised in the industry briefing invite our attention to evidence that contradicts the conclusions
The Secretary [of Labor], in promulgating mandatory standards dealing with toxic materials or harmful physical agents under this subsection, shall set standards which most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life. Development of mandatory standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the miner, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the mandatory health or safety standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
Many of the specific challenges to the content of the New Dust Rule, therefore, focus on whether MSHA considered the “best available evidence” or whether MSHA demonstrated technological or economic feasibility of such standards. These statutory requirements are significant, and, as the litigation history of this regulation has shown, the failure to address them
Most importantly, the statutory requirements of section 101(a)(6)(A),
With the standard of review firmly established and MSHA‘s mandate in mind, we now turn to the particular substantive challenges raised in the briefing.
B. Single-Shift Sampling
Prior to the effective date of the New Dust Rule under review, and consistent with the 1972 Joint Finding favoring multi-shift averaging, the regulations provided:
Compliance determinations are based on the average concentration of respirable dust measured by five valid respirable dust samples taken by the operator during five consecutive normal production shifts or five normal production shifts worked on consecutive days (multi-shift samples). Compliance determinations are also based on the average of multiple measurements taken by the MSHA inspector over a single shift (multiple, single-shift samples) or on the average of multiple measurements obtained for the same occupation on multiple days (multiple-shift samples).
Under the existing program, sampling results are often not known to mine operators, miners, and MSHA for at
79 Fed.Reg. at 24,817. In the preamble to the New Dust Rule now under review, MSHA explains the changes to the former multi-shift averaging scheme:
The Secretary [of Labor] has found, in accordance with sections 101 (
30 U.S.C. 811 ) and 202(f)(2) (30 U.S.C. 842(f)(2) ) of the Mine Act, that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be accurately measured over a single shift. Accordingly, the 1972 Joint Finding, by the Secretary of the Interior and the Secretary of [HEW], on the validity of single-shift sampling is rescinded. Final § 72.800 clarifies that MSHA will make a compliance determination based on a single full-shift MSHA inspector sample.In addition, final § 72.800 clarifies that noncompliance with the respirable dust standard or the applicable respirable dust standard when quartz is present, in accordance with subchapter O, is demonstrated when a single, full-shift measurement taken by MSHA meets or exceeds the applicable [excessive concentration value].... However, as explained elsewhere in this preamble under final § 70.208(e), under the final rule, a noncompliance determination based on a single full-shift sample only applies to MSHA inspector samples and not operator samples....
... Under final § 72.800, a noncompliance determination on a single full-shift sample is only based on an MSHA inspector‘s single full-shift sample and not an operator‘s single full-shift sample. Noncompliance based on an operator‘s samples consists of either 2 or 3 operator samples (depending on where the sample is taken) or the average of all operator samples, but not both.
79 Fed.Reg. at 24,932-33 (footnote omitted).
1. Statutory and accuracy-related challenges
At the outset of their substantive challenge to the New Dust Rule, the petitioners question MSHA‘s decision to depart from a regime of multi-shift averaging to single-shift sampling to determine the atmospheric conditions in the mine relative to its RCD limits. The petitioners claim that the single-shift scheme distorts the congressional intent to limit “chronic exposure to excessive RCD, not ... short-term or episodic exposures.” Murray Energy Br. 29. They further contend that the prior multi-shift scheme “‘minimize[d] the variability associated with the result of a single shift sample or several samples on a single shift‘” and from “‘human and mechanical error.‘” Id. at 31 (quoting Am. Mining Cong. v. Marshall, 671 F.2d 1251, 1259 (10th Cir.1982)). By contrast, the New Dust Rule‘s focus on the dustiest locations in the mine violates the statutory directive to determine “the atmospheric conditions ... to which each miner ... is exposed.”
We cannot accept the petitioners’ arguments. First, the petitioners are incorrect in asserting that the statute is concerned only with chronic exposure. This subsection, 202(f) of the Mine Act,
We also see no merit in the petitioners’ contention that the single-shift sampling methodology of the New Dust Rule is inherently unreliable and therefore frustrates the purposes of the statutory scheme. In addressing the accuracy of single-shift sampling, MSHA acknowledged in its rulemaking that “all measurements of atmospheric conditions are susceptible to some degree of measurement error.” 79 Fed.Reg. at 24,934. In deciding to employ NIOSH‘s Accuracy Criterion to determine the acceptability of single-shift sampling, it selected a rule that requires samples to be within 25 percent of the actual sample 95 percent of the time. In making this decision, MSHA noted that the Accuracy Criterion “is relevant and widely recognized and accepted in the occupational health professions as providing acceptable limits for industrial hygiene measurements.” Id. To support its decision, MSHA relied upon NIOSH studies, which showed that, using either available monitoring technologies (the CPDM or the CMDPSU),24 single-shift sampling con-
In evaluating the industry petitioners’ specific objections, we first must note that the decision to use the Accuracy Criterion to evaluate the technology is not properly challenged in the present case. The regulation establishing its use to evaluate CPDM technology,
The industry petitioners also maintain that the abandonment of multi-shift sampling introduces an element of variability into the sampling methodology that eviscerates the statutory command for accuracy. By implementing the new scheme without the check provided by multi-shift sampling, reliance on samples taken from the dustiest locations is, they contend, also unfaithful to the statutory command to evaluate the conditions “to which each miner in the active workings of the mine is exposed,”
would resolve the remaining variability solely in favor of mine operators, to the detriment of the congressional purpose to protect miners from black lung disease. Congress has not mandated any accounting for variability and has given the Secretary broad discretion in enforcing the respirable dust standard. The Secretary has not abused his discretion by refusing to put the risk of the remaining error on miners.
Id. (emphasis added). Moreover, this discussion of potential issues with variability was entirely separate from the section addressing new additions to the existing sampling program, which found that MSHA‘s judgment in favor of area sampling was reasonable despite the fact that it might overestimate a given miner‘s exposure:
The Secretary has demonstrated a rational basis for the designated area sampling program: if the atmosphere in the area of a known dust generation source is in compliance with the statutory standard, then it can safely be assumed that all miners are protected from overexposure to respirable dust. This assumption is justified since no one individual constantly works next to an outby27 dust generation source over the course of an entire shift.
Sampling in the dustiest locations28 is and has been the applicable rule for decades and cannot seriously be challenged
While area sampling does not show a particular miner‘s dust exposure, the area sampling results will show whether miners are exposed to excessive dust concentrations. The objective of area sampling is to control the concentration of respirable dust to which miners are exposed in the workplace. In American Mining Congress v. Secretary of Labor, 671 F.2d 1251 (10th Cir.1982), the Court found that area sampling was reasonable and consistent with the Mine Act.
If placed in a fixed location, the CPDM will provide an accurate measurement of the respirable dust in the atmosphere where miners work or travel. In addition, it will provide immediate information to the miners working in that location so that the mine operator could make immediate adjustments in controls in relation to dust sources to reduce dust generation or suppress, dilute, divert, or capture the generated dust. Compared with administrative controls or respirators, well-designed engineering controls provide consistent and reliable protection to all workers because the controls are less dependent on individual human performance, supervision, or intervention to function as intended. Area sampling with the CPDM will also provide information on miners’ exposure in areas with the highest concentration of dust. This will give the mine operator and MSHA valuable data to pinpoint areas in need of improvement.
79 Fed.Reg. at 24,886.
In light of the congressional purpose and the lack of any statutory command to the contrary, it is permissible for MSHA to select a sampling scheme that resolves ambiguities in dust levels resulting from sampling issues in favor of miners’ health, even if it results in a scheme that is more aggressive in its demands on the industry. See Am. Mining Cong., 671 F.2d at 1256. MSHA‘s conclusions on this issue are reasoned, take into account prior court decisions, and serve the practical purpose of allowing immediate corrective measures in mine trouble-spots.
2. Feasibility of single-shift sampling
The petitioners next assert that MSHA failed to demonstrate that its move to single-shift sampling is technologically feasible. See NMA Br. 34-39. All of these arguments can be reduced to a simple assertion by the petitioners that single-shift sampling produces inaccurate results and will burden the industry with faulty data suggesting overexposure. We already have rejected the petitioners’ challenge to the extent that it rests on adoption of the Accuracy Criterion and do not repeat that analysis here. With respect to the remainder of the “accuracy“-related challenges to single-shift sampling, MSHA readily acknowledges that there is significant variability in coal dust concentration at places in the mine, and there are measurement differences that occur depending on the placement of the sampling device on the miner‘s body, his orientation with respect to dust-producing activities, and the like. If the device encounters different
There is neither a “perfect” or “true” concentration of dust in a particular area of the mine, nor is there is a perfect sampling method. See Am. Mining Cong., 671 F.2d at 1256 (“[M]easurement error is inherent in all sampling, [so] the very fact that Congress authorized a sampling program indicates that it intended some error to be tolerated in the enforcement of the dust standard.“); see also id. (“Since there is no perfect sampling method, the Secretary has discretion to adopt any sampling method that approximates exposure with reasonable accuracy. The Secretary is not required to impose an arguably superior sampling method as long as the one he imposes is reasonably calculated to prevent excessive exposure to respirable dust.“). MSHA‘s rule reflects knowledge of this imperfection, as well as a detailed understanding of improvements—both technological and in the standards for collection by operators—that make single-shift sampling sufficiently “accurate” as to satisfy the statutory standard. See 79 Fed.Reg. at 24,935-36.30
C. Technological Feasibility of Other Major Provisions of the New Dust Rule
The petitioners next raise a host of other feasibility challenges. Before addressing each of these, we call to mind the counsel of the Supreme Court when it interpreted a nearly identical provision of the
1. Mandatory use of the CPDM
Petitioners assert that the transition to the CPDM is not feasible. They contend that MSHA ignored record evidence of the device‘s high malfunction rate, failed to consider that its measurement methodology does not protect against inaccuracies due to oversized particles which are not respirable, failed to consider that it is not capable of silica measurement, used inaccurate assumptions to calculate its availability timeline to the industry, and reached incorrect conclusions about the ability of miners to wear the device without impeding their work. Each of these objections was raised before MSHA during the comment period of the rulemaking process, and MSHA responded to them on the merits in the preamble of the final rule. As we have noted earlier, in our review, we do not reweigh the evidence before MSHA; we simply assess whether MSHA‘s position, in light of the evidence before it, meets a threshold of reason such that it cannot be deemed arbitrary. See Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43 (“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.“); id. at 43, 103 S.Ct. at 2866-67 (noting that the reviewing court must determine whether “the agency examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made” rather than exhibiting “a clear error of judgment” (internal quotation marks omitted)).
We also note that, although the petitioners have questioned whether NIOSH had the requisite degree of formal involvement in the rulemaking process required by the statute, see supra section III (evaluating claims that HHS must co-promulgate rules), they cannot seriously challenge that MSHA acted consistently with the advice of NIOSH when making its substantive determinations. Indeed, NIOSH was directly involved both in the prior rulemaking on the CPDM technology and the actual, currently marketed commercial CPDM device. See generally 75 Fed.Reg. 17,512; see supra p. 860. Moreover, in the course of the present rulemaking, NIOSH‘s comments on the CPDM, included in the record, responded directly to many of the objections raised by the petitioners in their comments on the proposed rule. With this consideration in mind, we now turn to petitioners’ specific objections.
a. Accuracy challenges to the CPDM
The petitioners assert that the devices fail to satisfy the NIOSH Accuracy Criterion more than 40 percent of the time. NIOSH reviewed the data relied on by petitioners on this issue and noted that its source was a single mine operator and that it was based on only 955 individual measurements. By contrast, NIOSH‘s own data “analyzed samples that were statistically representative of the nation‘s underground coal mining industry” and had been “collected by MSHA inspectors at approximately 20 percent of active mechanized mining units.” 79 Fed.Reg. at 24,863. NIOSH‘s comparison of the data
Moreover, the objection is based on the errant use of the Accuracy Criterion to evaluate field samples, as opposed to laboratory testing of devices—the purpose for which the Criterion was designed and its use intended. In field sample testing, “[t]he variability reported by the commenter was primarily due to large sample variability, which was due to uncontrolled variables known to exist in field samples, even when two identical samplers were placed side-by-side.” Id. Among the causes of that variability were “significant dust gradients known to exist, sampler inlet location differences, and the nature of mine ventilation.” Id. These are real-time variations in the dust measured that can be controlled in laboratory testing. The error of using field tests to assess device accuracy is laid plain by this data: the complained variations are not evidence of imprecise or unreproducible measurements due to characteristics of the device; they are actual variations in conditions, which are variable inch by inch in a mine. Viewed in this light, the petitioners are objecting to variability inherent in a sampling regime of any kind—a position flatly rejected by a statute that requires a sampling program. MSHA summarized its position on these varying analyses when it concluded, “[t]hrough years of work, NIOSH has demonstrated that the CPDM is an accurate instrument that meets the NIOSH Accuracy Criterion and, therefore, can be used as a compliance instrument.” Id.31
b. Assumptions underlying MSHA data and requests to supplement the record before the court
In a somewhat related challenge, the petitioners claim that, because of the variability present in sampling, operators would be required to “overengineer” their mines to ensure against sampling readings that, because of measurement inaccuracy, reflect noncompliance. Murray Br. 43. They contend that MSHA‘s data is based on a faulty assumption that the mines will only make the reductions necessary to achieve compliance, but will go no further. Accordingly, they contend that the data
The petitioners’ analysis is based, in substantial part, on materials that were not before MSHA; they urge us, nevertheless, to take judicial notice of them. “[T]he general rule, applicable across the board to judicial review of administrative action ... is that the court may not go outside the administrative record.” Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir. 2001) (internal quotation marks omitted). Accordingly, “[w]hen directly reviewing an agency decision or regulation, a court does not consider any evidence that was not in the record before the agency at the time that it made the decision or promulgated the regulation.” United States v. Guthrie, 50 F.3d 936, 944 (11th Cir. 1995). Though “certain circumstances may justify going beyond the administrative record,” we are “not generally empowered to do so.” See Preserve Endangered Areas of Cobb‘s History, Inc. v. United States Army Corps of Eng‘rs, 87 F.3d 1242, 1246 (11th Cir. 1996) (internal quotation marks omitted). We have acknowledged that various factors could be considered in determining the propriety of reviewing extra-record material on review of an agency rule, id. at 1246 n. 1; in practice, however, we generally have focused pointedly on whether the petitioners have made “a strong showing of bad faith or improper behavior by the agency.” See Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1262 (11th Cir. 2007) (internal quotation marks omitted). Because we conclude that the allegations of “bad faith” made by the petitioners in their submissions are not supported,32 we deny the motion for judicial notice and confine our substantive review to the record as it stood before MSHA.33 We further note, in any event,
c. Malfunction rate of the CPDM
The petitioners also submit that CPDMs have a high malfunction rate, with 35 percent of units requiring a return to the manufacturer for repair, and 12 percent returned more than once. After examining the data submitted by the petitioners, NIOSH responded that the data lacked “an appropriate experimental protocol to control” critical variables and reflected a misunderstanding by operators of the import of “error” messages. 79 Fed.Reg. at 24,863-64. MSHA describes NIOSH‘s response to the data clearly:
[T]hese commenters misunderstood the CPDM error messages received during their testing, believing that the messages indicated failure of the CPDM. The CPDM, as currently programmed, monitors its performance during sampling and registers any status conditions (errors) logged during the sample run. These messages are not indicative of a failure of the CPDM, rather they provide the user with valuable constructive feedback in real-time concerning sample validity. The frequency and type of these error messages are logged during sample collection. They will be used by MSHA to determine whether samples are valid or should be voided.
In response, in its brief, NMA states that MSHA‘s explanation, that “error” is a status code, rather than an indication of device failure, “does nothing to change the fact that CPDMs appear to malfunction 200 out of every 1,000 times.” NMA Br. 42. But that is exactly what MSHA‘s explanation resolves. The error codes do not indicate failure, therefore, failure rates based on error codes are per se invalid. To the extent that NMA is arguing that the devices give the appearance of failure, MSHA‘s explanation should suffice to assure operators that they are not, indeed, failing.
MSHA further noted that “[g]iven the limited data set, including error messages, from only five mines cited by the commenters as evidence of CPDM failure, both NIOSH and MSHA consider the cited failure rate of 41 errors per 1,000 hours to be invalid. The NIOSH published data remains the most appropriate data set to assess the failure rate of the CPDM.” 79 Fed.Reg. at 24,864. According to that data, the failure rate was lower by “an order of magnitude,” at only 4.75 per 1,000 hours. Id. Moreover, repair rates had improved quarter-to-quarter since the devices were first used in mine settings, and “repair rates are expected to improve in general due to the quality control systems required for certification” of the devices as well as “the actions taken by the manufacturer to address reported field performance.” Id. Before this court, the petitioners simply restate the data that they provided to MSHA in their comments, without addressing any of MSHA‘s reasons for rejecting that data in favor of the published results of NIOSH studies. Accordingly, the petitioners ask us to reweigh the evidence, an option that is simply not available to us under our narrow standard of review.
d. Performance at varying temperatures and humidities
The petitioners next object that data showed that the CPDM became inaccurate at high temperatures and humidities. MSHA rejected this data. The preamble noted that “[t]he differences” cited by the commenter “are below the minimum detection limit of the commercial CPDM.... Therefore, the commenter‘s conclusions, which are based on these test results, are inaccurate.” 79 Fed.Reg. at 24,864. Moreover, it was unclear whether the commenter had used the “user-selected temperature operating range to optimize performance,” and without that information, the validity of the data could not be assessed. Id. Further, the objecting commenter had used an “outdated” Department of Defense testing procedure “not designed to evaluate the accuracy and precision of airborne dust sampling instruments.” Id. Finally, the testing involved talc as a proxy for RCD, which MSHA states is “not representative of respirable coal mine dust.” Id. Again, the petitioners’ brief does not endeavor to undermine MSHA‘s reasons for rejecting the data, instead simply citing the data and claiming that MSHA “disregarded [the] evidence.” NMA Br. 41.34
On all of these questions regarding the implementation of the CPDM device, the record simply does not support the petitioners’ assertion that MSHA “disregarded evidence” in reaching its conclusions about the CPDM‘s accuracy. Instead, MSHA‘s conclusions, which essentially echo NIOSH‘s statistically valid analyses, address head-on the contrary data and explain the flaws that make it less than trustworthy. Its conclusions are supported both by data and by reasoned explanations that the petitioners have failed to challenge in substance. More to the point, the petitioners’ arguments relying on their previously submitted data, with no attempt to address the deficiencies in it identified by MSHA, provide us with no reasoned basis for finding that MSHA acted in excess of its broad statutory discretion.
e. CPDM as an impediment to miner‘s ability to perform work
The petitioners also object that use of the device is not feasible because miners
f. Availability of the CPDM
The petitioners next object that the device will not be available in time for implementation of the rule in February 2016. NMA claims that MSHA “entirely failed to consider” the availability issue, and therefore its implementation schedule is arbitrary and capricious. NMA Br. 46 (internal quotation marks omitted). However, again, the record does not support this assertion. MSHA asserts that it developed the eighteen-month phase-in in consultation with the manufacturer, but noted that if MSHA determines that there are logistical or feasibility issues concerning availability of the CPDM, MSHA will publish a notice in the Federal Register to continue to use an approved CMDPSU to conduct quarterly sampling. In addition, assuming no technological issues arise concerning the use and manufacture of CPDMs, and depending on manufacturer projections, if CPDMs are not available in sufficient quantities, MSHA will accept, as good faith evidence of compliance with the final rule, a valid, bona fide, written purchase order with a firm delivery date for the CPDMs. 79 Fed.Reg. at 24,884. Not only has MSHA considered availability and given a timeline based on available evidence, it also already has developed a contingency plan. We have no basis for finding this approach to the question arbitrary.
2. The silica standards35
Shifting their focus from the CPDM, the petitioners challenge whether MSHA has demonstrated the feasibility of what they claim are new silica PEL (permissible exposure limit) and silica-based, reduced RCD limits. See NMA Br. 46. MSHA points out, however, that the new rule does not establish any new silica PEL. See 79 Fed.Reg. at 24,866, 24,882. Instead, it states that its new rule merely applies the rule of existing
The petitioners also object to the silica standard on feasibility, given that the new CPDM device does not measure silica. However, it is worth emphasizing that neither the newer CPDM nor the prior CMDPSU are capable of silica measurements in RCD. Neither of those devices is designed for that function. Nevertheless, as the foregoing discussion makes clear, existing rules also set silica limits, enforceable in essentially the same manner. Without a presently approved device capable of direct, real-time measurement of the silica content of RCD, MSHA has elected to reduce the potential health impact of high-silica RCD with a proxy measure: MSHA collects samples itself, with its own equipment, to determine a percentage of silica specific to a particular mine‘s atmosphere. When the level of silica in a mine‘s atmosphere crosses a threshold set by the rule (indeed, this threshold remains unchanged from prior regulations), MSHA uses a simple calculation that reduces the overall RCD limit below the generally applicable limits in direct proportion to the silica content it has observed. MSHA has identified further, and perhaps more direct, silica limits as a potential subject to be addressed in a future rulemaking. See 79 Fed.Reg. at 24,882. Even if the amendments to the rule were broad enough to give us jurisdiction over a challenge to a procedure that has been in effect for years—a doubtful proposition, at best—the history demonstrates the reasonableness of MSHA‘s current approach.38
3. The cumulative effect of the New Dust Rule‘s changes
Finally, the petitioners claim that MSHA failed to conduct a feasibility analysis that examined the cumulative effects of the proposed changes. MSHA responds that it considered extensive data from 2008-09, adjusted to reflect the new, more stringent definition of a normal production shift, in determining the ability of operators to meet the new standards. On the basis of these actual RCD measurements, MSHA concluded that the probability of compliance with the new standards was extremely high, for some areas already at 90%, and even in the very dustiest areas at 65%. It then examined each and every sample in excess of the new standard and determined on a case-by-case basis whether the operator had utilized existing controls, finding that they had not “[i]n each instance.” MSHA Br. 64; see also 79 Fed.Reg. at 24,869 (“MSHA reviewed measurements of the engineering controls in use on the day each sample was collected to assess whether using additional engineering controls would have likely reduced the dust concentration to levels at or below 1.5 mg/m³. Every survey indicated that additional control measures are available that would be likely to reduce the respirable dust concentration to 1.5 mg/m³ or less.” (emphases added)).39 This data analysis is simply not the “brush off,” Murray Energy Br. 39, that the petitioners claim. The petitioners merely ask us to reweigh the evidentiary record and credit their submissions that further use of existing engineering controls is not possible.
D. Economic Feasibility
The petitioners also contend that MSHA did not adequately evaluate the economic feasibility of the New Dust Rule. In their view, MSHA grossly underestimated the costs to the industry of compliance. NMA‘s rather cursory discussion of this topic basically suggests that the failure of MSHA‘s feasibility analysis is its
There can be no question that MSHA was required to evaluate economic feasibility of the New Dust Rule. In our review of this rule‘s predecessor, we said so emphatically. Nat‘l Mining Ass‘n, 153 F.3d at 1269. As the petitioners and MSHA agree, MSHA must “provide a reasonable assessment of the likely range of costs of its standard, and the likely effects of those costs on the industry, so as to demonstrate a reasonable likelihood that those costs will not threaten the existence or the competitive structure of an industry.” Color Pigments Mfrs. Ass‘n v. OSHA, 16 F.3d 1157, 1163 (11th Cir.1994) (emphasis omitted) (internal quotation marks omitted); see also Nat‘l Mining Ass‘n, 153 F.3d at 1268 & n. 5 (noting that rulemaking under the Mine Act requires an economic feasibility analysis analogous to that required in OSHA rulemakings). 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.
As a preliminary matter, to the extent that the petitioners’ arguments rely on their view that the Rule is not technologically feasible, those arguments are undercut by our earlier conclusion that MSHA is on solid ground with respect to the technological feasibility of operators to achieve compliance.
Turning to the matter of actual costs, we think that the record adequately supports MSHA‘s determination that the costs of compliance, while not insignificant, can hardly be characterized as so high as to threaten the existence or the competitive structure of the industry. At the outset, as the petitioners admit, MSHA certainly was not unreasonable in discounting the industry‘s analysis to the extent that it did not account for the significant changes made by MSHA to the final rule that improved feasibility and reduced the potential for noncompliance: an overall reduction in the number of required samples, an alteration in the RCD limit initially proposed of 1.0 mg/m³ limit to the 1.5 mg/m³ limit actually adopted, and the introduction of “excessive concentration values” or ECVs.40 There remains,
MSHA has addressed adequately the economic feasibility of the New Dust Rule.
E. Other Challenges
The petitioners raise several additional brief objections, including a claimed failure of MSHA to consider the “best available evidence” and the experience of other agencies in implementing other health and safety laws. See
1. National regulation
Murray Energy begins with a best-available-evidence claim that the rule irrationally regulates nationally when the incidence of CWP has lessened nationwide and has spiked only regionally. In its view, the latest scientific evidence supports the view that silica is more toxic than ordinary RCD and that cases of silicosis caused by silica exposure are mischaracterized as rapidly progressing CWP. On this point, the scope of disagreement between the parties is narrower than the petitioners suggest. There is no dispute that silica is a dangerous substance; indeed, the rule (as in prior rules) reduces the maximum RCD limits in proportion to a high presence of silica dust in a particular mine environment. The parties also agree that silica has the potential to advance the progression of CWP and to cause its own serious lung disease, silicosis. The petitioners contend, however, that the evidence demonstrates that the rise in CWP upon which the New Dust Rule is predicated is really a rise in silicosis, or perhaps a rise in a subtype of CWP in which silica is the principal factor. They claim that MSHA ignored the scientific evidence on this point.
On the contrary, MSHA devotes several pages of the preamble to addressing objections regarding RCD concentration as a predictor of CWP rates, see 79 Fed.Reg. at 24,823, localized spikes in CWP rates, id. at 24,827-28, effects of silica on CWP and data regarding silicosis, id. at 24,828-29, and other factors influencing CWP rates, such as the variable carbon content of coal at certain mines, id. at 24,829. After reviewing the evidence cited by the petitioners as well as other evidence, MSHA concludes:
Based on all of the available evidence, MSHA believes that respirable coal mine dust has a fibrogenic effect on the development of CWP in coal miners independent of the quartz or silica content of the coal. High silica content may accelerate the progression of CWP to PMF [progressive massive fibrosis], the most severe form of CWP, but there is no evidence to suggest that the presence of silica is a necessary condition for CWP, PMF, severe emphysema, or [non-malignant respiratory disease] mortality.
Id. at 24,829-30. The record contains a wealth of not-always consistent research on this issue, and MSHA does not cite each paper or author on which the petitioners relied in their responses. Never-
The petitioners submit that MSHA merely rejected strawmen and failed to address its objections that CWP was declining and silicosis was, as a matter of epidemiology, the likelier culprit for present-day areas of concern. We cannot accept the petitioners’ contentions for two reasons: First, MSHA‘s conclusion that CWP rates can improve further with further reductions to the RCD limits is a reasoned one, supported by the historical record and the data before MSHA in the present rulemaking. Accordingly, the petitioners’ assertion that “CWP is declining under the current system, i.e., the system is working,” Murray Energy Br. 64, even if true, is irrelevant where CWP incidence has not been reduced to zero and MSHA has not completely fulfilled its mission to “protect the health ... of the Nation‘s coal or other miners.”
Secondly, MSHA‘s evaluation of the silica question is a paradigmatic example of an agency “evaluating scientific data with-
2. Use of respirators to achieve air quality standards
Next, the petitioners contend that MSHA should have accepted their proposal to allow operators to satisfy the RCD standards with the use of secondary personal controls—principally, personal respirators. MSHA counters that the statute does not permit this approach. We agree; the statute is unambiguous on this point: “Use of respirators shall not be substituted for environmental control measures in the active workings.”
3. Experience under other health and safety laws
Finally, the petitioners claim that MSHA has failed to consider “experience gained under this and other health and safety laws.”
Conclusion
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. Accordingly, we deny the petitions for review.
PETITIONS DENIED.
Notes
For the purpose of this title, the term “average concentration” means a determination which accurately represents the atmospheric conditions with regard to respirable dust to which each miner in the active workings of a mine is exposed (1) as measured, during the 18 month period following the date of enactment of this Act, over a number of continuous production shifts to be determined by the Secretary [of the Interior] and the Secretary of [HEW], and (2) as measured thereafter, over a single shift only, unless the Secretary [of the Interior] and the Secretary of [HEW] find, in accordance with the provisions of section 101 of this Act, that such single shift measurement will not, after applying valid statistical techniques to such measurement, accurately represent such atmospheric conditions during such shift.Federal Coal Mine Health and Safety Act, Pub.L. 91-173, § 202(f), 83 Stat. 742, 762-63 (1969).
The history of the Interior Department‘s enforcement of these laws, either by the Bureau of Mines or by MESA, demonstrated a basic conflict in the missions of the Department. In past years, the Department has pursued the goal of maximizing production in the extractive industries, which was not wholly compatible with the need to interrupt production which is the necessary adjunct of the enforcement scheme under the Metal and Coal Acts: even though, in the Committee‘s view, over the long-run, improved health and safety promotes greater productivity through reduction of “down-time” and improved employee morale. In addition, lowered workers’ compensation premiums which should result from improved safety and health, can be expected to lower production costs. On the other hand, no conflict could exist if the responsibility for enforcing and administering the mine safety and health laws was assigned to the Department of Labor since that Department has as its sole duty the protection of workers and the insuring of safe and healthful working conditions.
(6)(A) The Secretary [of Labor], in promulgating mandatory standards dealing with toxic materials or harmful physical agents under this subsection, shall set standards which most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life. Development of mandatory standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the miner, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the mandatory health or safety standard promulgated shall be expressed in terms of objective criteria and of the performance desired. (B) The Secretary of [HHS], as soon as possible after November 9, 1977, but in no event later than 18 months after such date and on a continuing basis thereafter, shall, for each toxic material or harmful physical agent which is used or found in a mine, determine whether such material or agent is potentially toxic at the concentrations in which it is used or found in a mine. The Secretary of [HHS] shall submit such determinations with respect to such toxic substances or harmful physical agents to the Secretary [of Labor]. Thereafter, the Secretary of [HHS] shall submit to the Secretary [of Labor] all pertinent criteria regarding any such substances determined to be toxic or any such harmful agents as such
When the respirable dust in the mine atmosphere of the active workings contains more than 5 percent quartz, the operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings is exposed at or below a concentration of respirable dust, expressed in milligrams per cubic meter of air as measured with an approved sampling device and in terms of an equivalent concentration determined in accordance with § 70.206 (Approved sampling devices; equivalent concentrations), computed by dividing the percent of quartz into the number 10.Example: The respirable dust associated with a mechanized mining unit or a designated area in a mine contains quartz in the amount of 20%. Therefore, the average concentration of respirable dust in the mine atmosphere associated with that mechanized mining unit or designated area shall be continuously maintained at or below 0.5 milligrams of respirable dust per cubic meter of air (10/20=0.5 mg/m³).
(a) Each operator shall continuously maintain the average concentration of respirable quartz dust in the mine atmosphere during each shift to which each miner in the active workings of each mine is exposed at or below 0.1 mg/m³ (100 micrograms per cubic meter or μg/m³) as measured with an approved sampling device and expressed in terms of an equivalent concentration. When the equivalent concentration of respirable quartz dust exceeds 100 μg/m³, the operator shall continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings is exposed as measured with an approved sampling device and expressed in terms of an equivalent concentration at or below the applicable dust standard. The applicable dust standard is computed by dividing the percent of quartz into the number 10. The application of this formula shall not result in an applicable dust standard that exceeds the standard established by § 70.100(a).EXAMPLE: Assume the sampled MMU or DA is on a 1.5-mg/m³ dust standard. Suppose a valid representative dust sample with an equivalent concentration of 1.12 mg/m³ contains 12.3% of quartz dust, which corresponds to a quartz concentration of 138 μg/m³. Therefore, the average concentration of respirable dust in the mine atmosphere associated with that MMU or DA shall be maintained on each shift at or below 0.8 mg/m³ (10/12.3% = 0.8 mg/m³).
MSHA constructed the ECVs to ensure that a citation is issued when the respirable dust standard is exceeded. The ECVs ensure that MSHA is 95 percent confident that the applicable respirable dust standard has been exceeded. Each ECV accounts for the margin of error between the true dust concentration measurement and the observed dust concentration measurement when using the CMDPSU or the CPDM.79 Fed.Reg. at 24,868; see also supra pp. 849-50 & note 2.