In re: United Mine Workers of Am. Int'l Union, 97-1109

• Decision Date: 03 September 1999
• Docket Number: No. 97-1109,97-1109
• Citation: 190 F.3d 545
• Parties: (D.C. Cir. 1999) In re United Mine Workers of America International Union, Petitioner
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 545

190 F.3d 545 (D.C. Cir. 1999)

In re United Mine Workers of America International Union, Petitioner

No. 97-1109

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 1998

Decided September 3, 1999

Petition for Writ of Mandamus

Judith Rivlin argued the cause for petitioner. With her on the briefs was Grant Crandall.

Robin A. Rosenbluth, Attorney, U.S. Department of Labor, argued the cause for respondent. With her on the brief was W. Christian Schumann, Counsel.

Michael F. Duffy and Harold P. Quinn, Jr., were on the brief for intervenor National Mining Association.

Before: Wald, Tatel and Garland, Circuit Judges.

Opinion for the Court by Circuit Judge Garland.

Garland, Circuit Judge:

The United Mine Workers of America (UMWA) petitions for a writ of mandamus to compel the Mine Safety and Health Administration (MSHA) of the Department of Labor to issue final regulations controlling gaseous emissions in the exhaust of diesel engines used in underground coal mines. In 1989, MSHA issued a Notice of Proposed Rulemaking (NPRM) to update air quality standards for hazardous substances in underground mines, including such gaseous emissions. Although the comment period closed in 1991, to date MSHA has not issued a final rule.

We find that the agency's failure to conclude its rulemaking violates the express timetable set forth by Congress in the Mine Safety and Health Act of 1977, 30 U.S.C. § 811(a)(4) ("Mine Act"). However, because all parties agree that MSHA is currently working on two other rulemakings with greater significance for miners' health, we decline to issue a writ that would move diesel exhaust gases to the top of the agency's regulatory agenda. During the course of this litigation, we issued an order requiring MSHA to file a definite schedule for completing rulemaking with respect to these gases. Because the agency's response was not definite, we grant the UMWA's alternative request that we retain jurisdiction, and we direct MSHA to file a series of status reports until it takes final agency action.

I

MSHA regulations require operators of underground coal mines to test mine air for the presence of harmful gases. 30 C.F.R. § 75.322 (1998). Concentrations in excess of permissible exposure limits (PELs) set by the agency are forbidden.Id.¹ Since the early 1970s, those regulations have incorporated PELs established in 1972 by the American Conference of Governmental Industrial Hygienists. Id. MSHA recognizes that those levels are "outdated," 54 Fed. Reg. 35,760, 35,762 (Aug. 29, 1989), and concedes that its air quality standards, overall, "do not fully protect today's miners" in their present form. 63 Fed. Reg. 22,250, 22,250 (Apr. 27, 1998).

In 1983, MSHA published an Advance NPRM for an omnibus rulemaking involving a wide variety of air quality standards for underground mines, including PELs, respirator protection rules, and abrasive blasting and drill dust controls.See 48 Fed. Reg. 31,171 (July 6, 1983). In 1989, MSHA issued an NPRM that included over 600 PELs and was intended to "eliminate outdated incorporations by reference in the existing standards." 54 Fed. Reg. at 35,762. Among the 600 were PELs for diesel exhaust gases. See id. at 35,807. The record for the omnibus air quality rulemaking closed in August 1991. See 56 Fed. Reg. 29,201 (June 26, 1991). In the eight years since, the agency has neither promulgated nor rescinded the proposed PELs, and has concluded only one portion of the air quality rulemaking (relating to abrasive blasting and drill dust control). See 59 Fed. Reg. 8318 (Feb. 18, 1994).

MSHA has, however, taken other steps to protect coal miners from exposure to diesel exhaust. The most significant is the regulation of the use and maintenance of diesel equipment. In 1987, MSHA convened an advisory committee "to provide advice on the complex issues concerning the use of diesel-powered equipment in underground coal mines." Report of MSHA Advisory Comm. on Standards & Regs. for Diesel-Powered Equipment in Underground Coal Mines 1 (July 1988) [hereinafter Advisory Comm. Report]. MSHA accepted the committee's recommendation to develop regulations to govern the approval and use of diesel-powered equipment. Id. at 7-9. In 1989 the agency issued an NPRM, and in 1996 it promulgated final rules. See 61 Fed. Reg. 55,412 (Oct. 25, 1996). Among other things, the new rules require agency approval of most diesel engines; mandate that engines use low-sulfur fuel and be clean-burning; limit their gaseous emissions; and establish monitoring and ventilation requirements when they are in use. See id. at 55,412-14.Upon promulgating the rules, MSHA stated that its "[e]xperience confirms that compliance with these regulations ... produces engines that operate without excessive gaseous emissions that can be harmful to miners." Id. at 55,419. The effective dates for the rules were staggered; final compliance is scheduled for November of this year. See 30 C.F.R. § 75.1907(b), (c).

Several of the diesel equipment rules contain requirements that depend upon PELs for diesel exhaust gases.² At the time MSHA issued its NPRM for the equipment rules in 1989, the agency anticipated that the omnibus air quality rulemaking would be completed before the final equipment rules were promulgated. 54 Fed. Reg. 40,950, 40,958 (Oct. 4, 1989). At the recommendation of its advisory committee, MSHA said it would await the conclusion of the omnibus air quality rulemaking, rather than update the PELs for the diesel exhaust gases through the equipment rulemaking. See id. ("[E]xposure limits for the gaseous contaminants in diesel exhaust should not be unique from the exposure limits set for the same contaminants generated by other mining sources such as blasting."); Advisory Comm. Report at 67 (same). By the time MSHA promulgated the final equipment rules in 1996, however, the omnibus air quality rulemaking still had not been completed. The agency nonetheless decided "not [to] adopt updated exposure standards at this time because this issue remains in the rulemaking process for Air Quality standards." 61 Fed. Reg. at 55,420. The UMWA did not challenge this or any other aspect of the equipment rules.

On March 3, 1997, the UMWA filed a petition for a writ of mandamus directing the agency to issue regulations governing emissions in diesel exhaust. UMWA Pet. at 1, 4. Specifically, it sought controls over two components of exhaust: gases and particulate matter. UMWA Reply Br. at 1-2, 1920 (June 30, 1997). Shortly before the case was scheduled fororal argument, the parties commenced settlement negotiations and requested that the case be removed from the court's argument calendar. These discussions eventually led to MSHA's publication of an NPRM for the regulation of diesel particulate matter. See 63 Fed. Reg. 17,492 (Apr. 9, 1998).That rulemaking is currently ongoing.

Citing the proposed diesel particulate regulations, as well as the final diesel equipment rules, MSHA then moved to dismiss the UMWA's petition as moot. A special panel of this court granted the motion in part, dismissing the diesel particulate portion of the petition. The panel restored the balance of the petition to the court's active docket, and directed MSHA to address the issue of gaseous emissions. In re United Mine Workers of America, Int'l Union, No. 97-1109 (D.C. Cir. June 28, 1998). The UMWA does not dispute the partial dismissal of its petition, noting that the proposed particulate rule "addresses part of what [it] seek[s]." UMWA Reply Br. at 1 (Aug. 5, 1998). Accordingly, the only matter before us is the issue of diesel exhaust gases. The two gases in question are carbon monoxide (CO) and nitrogen dioxide (NO2).³

II

We consider first the contention of the National Mining Association, intervenor in this case, that the UMWA's petition is tantamount to an untimely challenge to MSHA's 1996 diesel equipment rules. As the Association correctly observes, the Mine Act requires that petitions for review of MSHA safety or health standards must be filed within sixty days of promulgation. See 30 U.S.C. § 811(d). The UMWA did not file a challenge to MSHA's diesel equipment regulations, and its petition for a writ of mandamus was filed over two months after the sixty-day deadline for doing so had passed. Accordingly, the Association suggests that we dismiss the UMWA's petition as untimely.

But the union's petition for a writ of mandamus to compel action on the diesel exhaust PELs does not constitute a challenge to the agency's diesel equipment rules. From the outset, the agency disavowed any intention to consider new PELs for the diesel exhaust gases during its diesel equipment rulemaking, stating that the PELs would be reexamined as part of its omnibus air quality rulemaking. See 54 Fed. Reg. at 40,958. The UMWA does not take issue with that decision, or any other aspect of the diesel equipment rules. Although the PELs are plainly related to the equipment rules, since the latter incorporate them for certain equipment standards, the UMWA's challenge is to the content of the PELs and not to the agency's decision to incorporate them into the equipment rules. Indeed, had the UMWA challenged the diesel equipment rules on the ground that MSHA had failed to include revised PELs for diesel exhaust gases, we might well have denied its petition as premature. See National Mining Ass'n v. MSHA, 116 F.3d 520, 549 (D.C. Cir. 1997) ("An agency does not have to 'make progress on every front before it can make progress on any front.' ") (quoting Personal Water craft Indus. Ass'n v. Department of Commerce, 48 F.3d 540, 544 (D.C. Cir. 1995)).

Because the UMWA does not complain about what the agency has done but rather about what the agency has yet to do, we reject the suggestion that its petition is untimely and move to a consideration of the merits.

III

The UMWA seeks a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a),...