• Federal Appeals Court Hears Challenge against Mine Safety Agency Coal Dust Regulation
  • March 30, 2015 | Authors: Henry Chajet; Avidan Meyerstein
  • Law Firm: Jackson Lewis P.C. - Reston Office
  • The National Mining Association and others in the industry have sued the Mine Safety and Health Administration to halt implementation of massive changes to MSHA’s coal mine dust regulations. The regulations, published on May 1, 2014, are scheduled to become fully effective by August 2016.

    On March 17, 2015, a three-judge panel of the U.S. Eleventh Circuit Court of Appeals in Jacksonville, Florida, heard oral argument in the lawsuit. National Mining Association, et al. v. MSHA, et al. The challengers, represented Jackson Lewis shareholder Henry Chajet, questioned whether the changes are legally valid and supported by scientific evidence. Chajet focused the court on the provisions of the 1977 Mine Act that require rulemaking by the National Institute for Occupational Safety and Health (“NIOSH”), part of the Centers for Disease Control and Prevention within the Department of Health and Human Services, and not by MSHA alone, as occurred in this proceeding. He was joined at oral argument by counsel for Murray Energy who argued that the science in the record did not support the MSHA rule. The Circuit in 1998 had overturned a 1998 MSHA dust rule based on the agency’s improper rulemaking procedure and its failure to demonstrate feasibility.

    When the MSHA rule becomes fully effective, new, unproven continuous read out samplers will be mandated, along with a reduction in the permissible exposure limit (1.5mg/mg3). Enforcement based on single shift samples, an expansion of sampling requirements, and immediate corrective action mandates, among other changes, will also take place. Industry members and legal experts predict a significant increase in enforcement actions and interruptions in mining unless the new rules are overturned.

    No date has been set for a decision.