812 F.3d 843
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 847
Henry Chajet, Avidan Meyerstein, Jackson Lewis, PC, Reston, VA, Collin O'Connor Udell, Jackson Lewis, PC, Hartford, CT, Edward M. Green, Thomas C. Means, Daniel W. Wolff, Crowell & Moring, LLP, Washington, DC, for Petitioners.
Edward Waldman, Samuel Charles Lord, U.S. Department of Labor Office of the Solicitor, Arlington, VA, for Respondents.
Petitions for Review of a Decision of the Federal Mine Safety and Health Administration.
Before WILSON, FAY and RIPPLE* , Circuit Judges.
RIPPLE, Circuit Judge:
| 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 Provision s of the New Dust Rule |
872 |
| 1. |
Mandatory use of the CPDM |
873 |
| 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 |
...
