11th Circuit Rebuffs|Big Coal on Safety Issue

     (CN) – The 11th Circuit refused the coal industry’s request to review the Mine Safety and Health Administration’s final rules on coal dust, which can cause lung disease and explosions.
     Congress enacted the Coal Mine Health and Safety Act in 1969, after a series of accidents that killed more than 500 workers. To reduce the progressive respiratory diseases that affect coal miners, the act established a maximum acceptable level of coal dust at 3 milligrams per cubic meter and required operators to take accurate samples of coal dust in mines.
     Inhaling coal dust can cause silicosis, emphysema, bronchitis, and pneumoconiosis, or black lung disease.
     In May 2014, the Mine Safety and Health Administration, a branch of the Department of Labor, promulgated a final rule to limit miners’ exposure to coal dust. Among other things, the rule requires mine operators to take air quality samples over an entire shift, and bases compliance on excessive concentration values, measurements of respiratory coal dust “so high that … they demonstrate with 95 percent certainty that the true concentration of RCD [respirable coal dust] exceeded the allowable limit,” according to the 11th Circuit’s Monday ruling.
     Starting in February, operators will have to monitor dust concentration at the dustiest jobs and take 30 samples per quarter. Citations will be issued if three or more samples meet the excessive concentration value.
     The rule’s final phase, which takes effect in August, lowers the maximum acceptable concentration limit of coal dust to 1.50 mg per cubic meter and 1.0 mg per cubic meter near air intakes.
     Two groups representing the coal industry challenged the rule, saying that it improperly relies on single-shift sample results rather than multi-shift averaging, which they said would increase the likelihood of inaccurate results
     They also objected that the secretary of Labor had unilaterally rescinded a 1972 joint finding of the secretaries of Labor and Health and Human Services, which the industry says is permissible only by joint rulemaking of the secretaries.
     The secretary of Labor said she need not consult Health and Human Services when promulgating new regulations and defended the use of single-shift sampling, saying new methods and technology have made single-shift sampling as accurate and reliable as multi-shift samples.
     The three-judge panel on the 11th Circuit refused to review the rule and upheld it.
     The language of the Mine Act clearly grants regulatory authority to the secretary of Labor, and by extension to the Mine Safety and Health Administration to promulgate the new dust rule, the panel wrote.
     Many of the industry’s challenges boiled down to whether the administration relied on the best available science and whether it showed that the sampling methods were economically and technologically feasible.
     But the administration is statutorily tasked with prioritizing miners’ health and safety above all other considerations, so it need not balance feasibility with that goal, the court ruled.
     As for relying on the best available science, the administration supported the move from multi-shift to single-shift sampling with plenty of evidence that the latter is just as reliable and accurate as the former, the ruling states.
     Arguments that samples taken from the dustiest places in the mine are inherently inaccurate fail, because the practice has gone on for decades. Since miners work and travel through a mine’s dustiest areas, “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 of the industry. 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,” Judge Kenneth Ripple, sitting by designation, wrote for the panel.
     The coal industry’s objections to the allegedly variable accuracy of the monitoring devices also fail because “the complained variations are not evidence of imprecise or irreproducible 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 any sampling regime of any kind – a position flatly rejected by a statute that requires a sampling program,” the ruling states. (Emphasis in ruling.)
     Nor was the panel impressed by contentions about the devices’ performance, which they said were founded upon old data that the administration had debunked as deficient.
     Claims that costs of compliance would unfairly burden the industry fell short because the industry’s analysis did not account for the changes the administration made to the final rule. Though the parties may disagree about the costs of compliance, the record indicates that such costs, “while not insignificant, can hardly be characterized as so high as to threaten the existence or the competitive nature of the industry,” Ripple wrote.
     The judge pointed out that many repairs can be made during a shift, and even if a mine must be closed to correct a violation, the coal is still there and can be mined later.
     Arguments that the administration should have focused on silica exposure instead of coal dust because the rate of black lung is in decline is a red herring, because the incidence of that disease has not been reduced to zero. Moreover, the administration is well within its statutory authority to dedicate this rulemaking to coal dust and promulgate a separate rule for silicosis, which it intends to do, the court said.
     “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,” Ripple wrote.
     Judges Charles Wilson and Peter Fay joined Ripple on the panel.
     A spokesman for the National Mine Association called the decision “disappointing” on several fronts.
     “First, the court deferred to MSHA’s definition of the problem – something we disagree with,” the spokesman said in an email. “As we have said, this rule was a solution in search of a problem and the court, rather than addressing this, chose to accept MSHA’s definition of the problem.”
     The government has not return an email seeking comment.

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