Eleventh Circuit Upholds Regulation to Protect Miners’ Health

In National Mine Association v. Secretary of the Department of Labor, Nos. 14-11942, 14-12163, 2016 WL 285019 (11th Cir. Jan. 25, 2016), the Eleventh Circuit upheld, over two separate challenges, a comprehensive regulation implemented by the Mine Safety and Health Administration (MSHA) called the New Dust Rule. The New Dust Rule implements several significant changes to federal regulations regarding respirable coal dust (RCD) monitoring requirements. The goal of the regulation is to reduce health risks associated with miners working in dangerous conditions. The regulation dictates three phases in which the allowed level of RCD significantly lowers, and citations can be issued to mines failing to comply with the regulation. Within the law, MSHA imposes a significant change to regulation monitoring by implementing single-shift sampling, as opposed to a system of sampling multiple shifts throughout a week to determine compliance with regulations.

Petitioners, representing various members of the coal industry, first challenged the New Dust Rule by citing that procedurally, MSHA did not have the authority, acting alone, to implement this significant policy change. Petitioners claimed that under the Federal Mine Safety and Health Act of 1977 (the Mine Act), MSHA must act in conjunction with the Secretary for Health and Human Services and the National Institute for Occupational Safety and Health before creating a regulation. The court rejected this contention, and found under the plain reading of the Mine Act, that Congress intended for MSHA, acting on behalf of the Secretary of Labor, to have the authority to implement a regulation.

Next, petitioners challenged several aspects of the substance of the regulation. The court reviewed each of the challenged regulations with deference to MSHA’s determinations by looking at each regulation to ensure that it was not “arbitrary, capricious or an abuse of discretion.” With this standard in mind, the court considered petitioners’ challenges to different aspects of the regulations.

First, petitioners challenged the decision by MSHA to use single-shift sampling by stating that this method produces more variability and errors in sampling data. The court rejected this contention, finding that technology has significantly improved and that MSHA has properly supported the use of the single-shift sampling method. Petitioners then challenged the requirement in the regulations to use a particular machine to monitor the levels of RCD. Petitioners stated that the machine malfunctions at a high rate. The court again rejected this argument, finding that MSHA’s decision to use this monitoring machine was not arbitrary, and therefore, not a violation. Petitioners finally challenged the Rule on the grounds that MSHA failed to consider the cumulative effect of this regulatory change. The court cited the extensive data considered by MSHA, and found that MSHA properly considered the economic and practical feasibility of the New Dust Rule.

Therefore, by giving deference to the findings of MSHA, the Eleventh Circuit concluded that (1) MSHA had the proper authority to implement a regulation like The New Dust Rule; and (2) that the various substantive components of the regulations were not based on decisions that were arbitrary, capricious, or an abuse of discretion.

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