Oil, Chemical and Atomic Workers Intern. Union v. Zegeer

Decision Date02 August 1985
Docket NumberNo. 84-1635,84-1635
Citation768 F.2d 1480,248 U.S.App.D.C. 47
Parties, 15 Envtl. L. Rep. 20,894, 1984-1985 O.S.H.D. ( 27,346 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION and Public Citizen Health Research Group, Petitioners, v. David ZEGEER, Assistant Secretary of Labor, Federal Mine Safety & Health Administration, et al., Respondents, American Mining Congress, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

David C. Vladeck, Washington, D.C., with whom Alan B. Morrison and Eric R. Glitzenstein, Washington, D.C., were on brief, for petitioners.

Linda L. Leasure, Atty., Dept. of Labor, Arlington, Va., with whom Cynthia L. Attwood, Associate Sol., Arlington, Va., and Michael A. McCord, counsel for the Office of the Sol., Dept. of Labor, Washington, D.C., were on brief, for respondents.

Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., entered an appearance for respondents.

Anthony J. Thompson, Washington, D.C., with whom Charles E. Sliter, Larry A. Boggs and Henry Chajet, Washington, D.C., were on brief, for intervenor American Min. Congress.

Before GINSBURG and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case concerns the exposure of underground miners, particularly in uranium mines, to radon daughters, the radioactive decay products of radon gas. Radon daughters, free-floating or attached to dust, smoke, or fine moisture droplets, can be inhaled by miners and become lodged in nose, pharynx, or lungs; the deposited products may eventually induce respiratory cancer. Since the spring of 1980, petitioners Oil, Chemical and Atomic Workers International Union (OCAW) and Public Citizen Health Research Group (PCHRG) have pressed respondent Mine Safety and Health Administration (MSHA) to reduce the permissible levels of radon daughters to which miners may be exposed. 1 In this proceeding, OCAW and PCHRG ask us to determine whether MSHA has "improperly withheld" or "unreasonably delayed" regulatory action regarding radon daughter exposure. See 5 U.S.C. Sec. 555(b) (1982) (general requirement that agencies conclude matters before them "within a reasonable time"); id. Sec. 706(1) (authority of reviewing court to compel agency action "unreasonably delayed"). MSHA, 2 supported by intervenor American Mining Congress (AMC), 3 maintains, initially, that the standard-setting matter at issue lies entirely within the administrator's discretion and outside the province of any court to review.

We hold that MSHA's rulemaking endeavor responsive to the OCAW-PCHRG petition is subject to court review to determine whether the agency is engaged in unjustifiable delay. We find, however, that MSHA is now proceeding on a reasonable schedule in reconsidering radon daughter standards. Under the circumstances as they currently appear to us, if the agency adheres to the schedule it submitted to the court, there will be no occasion for an order requiring further expedition. Should MSHA veer from the timetable it has undertaken to follow, petitioners may renew their application for a court order requiring agency action that is not unreasonably delayed.

I. BACKGROUND

The ore in uranium and certain other mines contains radium in considerably Exposure to radon daughters is measured in working levels (WL) and working level months (WLM). A WL is a standard measurement of radon daughter concentration in the air; a WLM is equal to 173 hours' cumulative exposure at 1 WL. WL thus represents the exposure rate while WLM represents the cumulative exposure, "i.e., 1 WLM means the inhalation of air containing a radon daughter concentration of 1 WL for 173 hours." Id. at 383. Current MSHA standards set the maximum permissible single exposure to radon daughters at 1 WL and the maximum calendar year exposure at 4 WLM. See 30 C.F.R. Sec. 57.5-38 to -39 (1984).

higher than average concentrations. Radium gives off radon gas as it disintegrates. Radon, in turn, decays through a series of four "daughter" products. Radon daughters are heavy metal particulates that disintegrate at a rapid rate. Two of the four daughters release alpha radiation; this radiation, if the daughters are inhaled and deposited in the respiratory system, is capable of eventually inducing cancer. See Federal Defendants' Statement of Material Facts as to Which There Is No Genuine Dispute, Oil, Chemical & Atomic Workers International Union v. Zegeer, Civ. No. 84-0760 (D.D.C.), reprinted in Joint Appendix (J.A.) at 382-83.

MSHA's limit of 4 WLM in any calendar year originated fourteen years ago, in 1971, when the Environmental Protection Agency (EPA) published federal radiation protection guidance regarding radon daughters. See 36 Fed.Reg. 9480 (1971). EPA's recommendations were incorporated, automatically, into regulations governing underground mines. See 30 C.F.R. Sec. 57.5-42 (1984). Thereafter, in 1976, MSHA's predecessor agency explicitly adopted the 4 WLM/year standard. 41 Fed.Reg. 23,611, 23,616-17 (1976).

MSHA became the responsible agency the next year, upon the enactment of the Federal Mine Safety and Health Amendments Act of 1977 (Mine Act), Pub.L. No. 95-164, 91 Stat. 1290 (codified as amended in scattered sections of 30 U.S.C.). This legislation placed regulation of the entire mining industry under a single statute. The Mine Act transferred from the Interior Department to the Department of Labor, acting through MSHA, the task of inspecting mines and enforcing mine health and safety standards. See 30 U.S.C. Secs. 813-820 (1982) (provisions on mine inspections, citations and penalties for noncompliance with mandatory health or safety standards and other requirements of the Act). In addition to enforcement (inspection and prosecution) functions, MSHA carries out the provisions of the Mine Act that direct the Secretary of Labor to develop, promulgate, and revise mandatory safety and health standards. See id. Sec. 811.

Charging that the current standards for radon daughter exposure afford miners inadequate protection, OCAW and PCHRG petitioned MSHA, on April 21, 1980, for immediate promulgation of an emergency temporary mandatory standard (ETMS). See id. Sec. 811(b). 4 On April 30, 1980, the Months of information gathering became years. MSHA found the problem exceedingly complex and the NIOSH reports wanting. 6 There were letter exchanges between the petitioners and Department of Labor officials in 1982 and 1983, see J.A. 13-19, but the petition seeking more protective standards received no formal response. On March 13, 1984, OCAW and PCHRG sought relief from the district court; they filed a complaint, J.A. 20, alleging that MSHA had engaged in unreasonable delay and requesting a decree ordering MSHA to "significantly reduc[e] the permissible level of exposure to radon daughters by underground miners." Id. at 25. AMC intervened in the action as a party defendant in June 1984. Hefty cross motions followed: OCAW and PCHRG sought summary judgment directing imposition of an ETMS; MSHA and AMC sought dismissal or, in the alternative, summary judgment.

                Assistant Secretary for Mine Safety and Health wrote to the petitioners noting steps taken over the preceding two years to improve the protection afforded miners exposed to radiation hazards, expressing "aware[ness] that further improvements ... may be warranted," and reporting that "[w]ith respect to the central issue of a reduction in the permissible exposure limit, MSHA will be relying heavily on input from NIOSH [the National Institute for Occupational Safety and Health], 5 which is presently engaged in an assessment of data related to the exposure of miners to radon daughters."    Letter from Robert B. Lagather to Sidney M. Wolfe, M.D., Director, PCHRG, reprinted in J.A. 5-6
                

This court's October 24, 1984, decision in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (TRAC ), intercepted the district court's consideration of the cross motions. TRAC settled a matter on which circuit precedent had been untidy; the TRAC panel held:

[W]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals.

Id. at 78-79. The district court in the instant case observed that the Mine Act provides for review of a mandatory health or safety standard, once promulgated, exclusively in the court of appeals. See 30 U.S.C. Sec. 811(d) (1982). OCAW and PCHRG sought to compel promulgation of such a standard. TRAC instructed that a complaint of that genre, charging unreasonably delayed agency action, can be aired only in a court of appeals competent to review the action once it has been taken. Following TRAC 's direction, see 750 F.2d at 79 n. 37, the district court transferred the case here, pursuant to 28 U.S.C. Sec. 1631 (1982). See Oil, Chemical & Atomic Workers International Union v. Zegeer, Civ. No. 84-0760 (D.D.C. Dec. 7, 1984) (transfer order).

Soon thereafter, MSHA announced two measures that fixed the dimensions of this case. On January 18, 1985, MSHA embarked on rulemaking. The agency issued an Advance Notice of Proposed Rulemaking (ANPR) requesting comment on a host of issues relating to the adequacy of the current standards to protect miners, in both surface and underground mines, from radiation hazards. See 50 Fed.Reg. 4144 Not only is the plea for an MSHA response to the ETMS request moot; in addition, OCAW and PCHRG have entirely relinquished their claim that an ETMS should issue on radon daughter exposure. Petitioners' Reply Brief at 2. Petitioners now confine their judicial review application to the question whether the agency is moving at too tardigrade a pace in its rulemaking proceeding....

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