UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: UNITED MINE


97-1109a

D.C. Cir. 1999


*	*	*


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 stan- dards for
hazardous substances in underground mines, includ- ing 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. s 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 litiga-
tion, 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 juris- diction, 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. s 75.322
(1998). Concentrations in excess of permissi- ble exposure limits
(PELs) set by the agency are forbidden.  Id.1 Since the early 1970s,
those regulations have incorporat- ed 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recognizes  that those levels are "outdated," 54 Fed.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,




__________

n 1 For the sake of simplicity, we will uniformly use the phrase 
"permissible exposure limits" (PELs), although MSHA also uses 
"threshold limit values" (TLVs) to refer to the same concept. See  54
Fed. Reg. 40,950, 40,958 (Oct. 4, 1989).


(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 omni- bus rulemaking
involving a wide variety of air quality stan- dards 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


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 equip- ment. 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." Re- port 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 regula- tions to govern the approval and use
of diesel-powered equip- ment. 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 en- gines 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]xperi- ence confirms that compliance with these


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.  s 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 govern- ing emissions in
diesel exhaust. UMWA Pet. at 1, 4. Specifi- cally, it sought controls
over two components of exhaust:  gases and particulate matter. UMWA
Reply Br. at 1-2, 19- 20 (June 30, 1997). Shortly before the case was
scheduled for 




__________

n 2 For example, one rule requires mine operators to "take appro-
priate corrective action" once the concentration of carbon monoxide 
(CO) or nitrogen dioxide (NO2) exceeds half of their PELs. 30  C.F.R.
s 70.1900(c); see also id. s 75.325(j) (permitting higher  levels of
CO and NO2 if air sampling demonstrates continuous  compliance with


oral argument, the parties commenced settlement negotia- tions 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 partic- ulate 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 promul- gation. See 30 U.S.C. s 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. Accord-




__________

n 3 The UMWA originally identified three gases as components of  diesel
exhaust: CO, NO2, and nitric oxide (NO). UMWA Pet. at 2.  MSHA states
that its 1989 air quality NPRM did not propose  lowering the existing
exposure limit for NO, see MSHA Sched. at 1  n.1 (Dec. 23, 1998), a
fact which the UMWA does not contest.


ingly, 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 equip- ment 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 Watercraft  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. s
1651(a), to "compel agency action unlawfully  withheld or unreasonably
delayed," 5 U.S.C. s 706(1) (Admin- istrative Procedure Act). Although
we plainly have jurisdic- tion over such requests,4 "[m]andamus is an
extraordinary 




__________

n 4 See, e.g., Oil, Chem. & Atomic Workers Int'l Union v. Zegeer,  768
F.2d 1480, 1484-86 (D.C. Cir. 1985) (upholding judicial authority  to
review claims of unreasonable delay under the Mine Act); Tele-


remedy [and] we require similarly extraordinary circum- stances to be
present before we will interfere with an ongoing  agency process."
Community Nutrition Instit. v. Young, 773  F.2d 1356, 1361 (D.C. Cir.
1985). In exercising our equitable  powers under the All Writs Act, we
are guided by the factors  outlined in Telecommunications Research &
Action Center v.  FCC (TRAC) for assessing claims of agency delay:


(1) the time agencies take to make decisions must be  governed by a
"rule of reason"; (2) where Congress has  provided a timetable or
other indication of the speed with  which it expects the agency to
proceed in the enabling  statute, that statutory scheme may supply
content for  this rule of reason; (3) delays that might be reasonable 
in the sphere of economic regulation are less tolerable  when human
health and welfare are at stake; (4) the  court should consider the
effect of expediting delayed  action on agency activities of a higher
or competing  priority; (5) the court should also take into account
the  nature and extent of the interests prejudiced by delay;  and (6)
the court need not "find any impropriety lurking  behind agency
lassitude in order to hold that agency  action is 'unreasonably


750 F.2d 70, 80 (D.C. Cir. 1984) (citations omitted).


A


Central to the UMWA's petition is the second TRAC factor  (which, as
TRAC notes, gives content to the first). The union  contends that MSHA
is in violation of the regulatory timeta- bles imposed by Congress in
the Mine Act. It relies on two  provisions of the Act as setting those
timetables. The first  requires the Secretary of Labor to act on an
advisory commit- tee's recommendation within sixty days of its
submission. 30  U.S.C. s 811(a)(2). We agree with MSHA, however, that
the  sixty-day advisory committee deadline is inapplicable here. 




__________

n communications Research & Action Ctr. v. FCC, 750 F.2d 70, 75- 77, 79
(D.C. Cir. 1984).


MSHA's advisory committee on diesel equipment recom- mended that the
agency adopt new equipment regulations, see  Advisory Comm. Report at
7-9, and "set in motion a mecha- nism whereby a diesel particulate
standard can be set," id. at  9. MSHA has acted on those
recommendations by promul- gating the diesel equipment rules and
issuing an NPRM for  diesel particulate. But the advisory committee
recommended  against using the equipment rules to set new PELs for 
gaseous emissions in diesel exhaust, deferring instead to the  ongoing
omnibus air quality rulemaking (as to which there  was no advisory
committee). See id. at 67. Hence, the sixty- day deadline is
inapplicable to the regulations at issue here.


The second timetable provision on which the UMWA relies  requires the
Secretary of Labor to promulgate final regula- tions, or to explain
her decision not to promulgate them,  within ninety days of the
certification of the record of a  hearing if one is held, or of the
close of the public comment  period if a hearing is not held. See 30
U.S.C. s 811(a)(4). At  oral argument, MSHA conceded that the
ninety-day rule does  apply to the omnibus air quality rulemaking. The
last of the  hearings in connection with that rulemaking was held on 
March 27, 1991, and the record closed in August of that year.  See 56
Fed. Reg. at 29,201. Eight years later, the agency has  taken no
action on any portion of the proposed regulations,  other than that
relating to abrasive blasting and drill dust  control.


MSHA nonetheless contends that it is not in violation of the 
ninety-day deadline because Congress intended it to have  discretion
to defer action despite that deadline. In support of  this
proposition, MSHA relies on National Congress of His- panic American
Citizens v. Usery, 554 F.2d 1196 (D.C. Cir.  1977), in which the
plaintiffs sued to compel the Occupational  Safety and Health
Administration (OSHA) to comply with the  rulemaking timetables of
section 6(b) of the Occupational  Safety and Health Act ("OSH Act").
See 29 U.S.C. s 655(b).  Rejecting the plaintiffs' claim, we found
that "traditional  agency discretion to alter priorities and defer
action" permit- ted OSHA to deviate from the statutory deadlines. 554
F.2d  at 1200. Although the government contends that the timeta-


ble provision in the Mine Act is similar to that in the OSH  Act,
critical to our holding in National Congress was section  6(g) of the
latter, which explicitly authorizes OSHA to "deter- min[e] the
priority for establishing standards" with "due  regard to the urgency
of the need for mandatory safety and  health standards for particular
industries, trades, crafts, occu- pations, businesses, workplaces or
work environments." 29  U.S.C. s 655(g); see 554 F.2d at 1199-1200. As
we subse- quently observed in Action on Smoking & Health v. Depart-
ment of Labor, 100 F.3d 991, 994 (D.C. Cir. 1996), this  provision was
"the main reason we gave for treating [the  OSH Act's deadlines] as
non-mandatory." But as MSHA  concedes, the Mine Act contains no
counterpart to section  6(g) giving it similar flexibility to set
aside statutory dead- lines. See MSHA Br. at 16.5


Nor are we persuaded by MSHA's broader claim that the  Mine Act's
deadlines are merely hortatory. See In re Barr  Labs., Inc., 930 F.2d
72, 74 (D.C. Cir. 1991) (rejecting similar  claim by FDA). Nothing
about the language of those dead- lines suggests they are anything
other than mandatory. See,  e.g., 30 U.S.C. s 811(a)(4)(B), (C)
("[T]he Secretary, within 90  days after the period for filing ...
objections has expired,  shall by rule promulgate, modify, or revoke
such mandatory  standards" or "publish his reasons" for concluding
"that a  proposed mandatory health or safety standard should not be 
promulgated....") (emphasis added). Failing to find support  in the
statutory language, MSHA points us to the following  sentence from the
Senate Report on the Mine Act: "[T]he  Committee realizes that despite
the exercise of good faith, the  Secretary may in certain cases be
unable to meet the time  limitations." S. Rep. No. 95-181, at 20




__________

n 5 It is true, as MSHA notes, that the Mine Act permits the  Secretary
to extend the comment period on a proposed rule, 30  U.S.C. s
811(a)(2); but the Secretary did not extend the period past  August
1991 and it is now closed. It is also true that the Act does  not set
a time limit on the length of hearings or specify a time  within which
the record must be certified, see id. s 811(a)(3); but  MSHA has now
ended the hearings and does not contend that the  record remains


however, must be read in context. The sentence that follows  reads:
"Failure to meet the time frames in such cases should  not be grounds
for challenging the validity of the standard."  Id. This bespeaks not
a congressional intention to give the  agency unlimited flexibility to
delay promulgation, but rather  a concern that a violation of the
deadlines not serve to  invalidate a completed rule.


This reading is supported by consideration of the passage  that
immediately precedes the sentence quoted by MSHA.  The statutory
timetable, the Committee said,


eliminates the possibility of the lengthy standard promul- gating
procedures, which have too often been experi- enced under the current
Coal and Metal Acts, by putting  a closure date on the several steps
of the process. Once  the standard promulgation procedure begins, it
is regu- lated within a specific statutory time frame. This proce-
dure should facilitate more expeditious promulgation of  standards.


Id. The Report thus makes clear that Congress did intend  the
ninety-day rule to "put[ ] a closure date" on the rulemak- ing


We also reject MSHA's claim that its breach of the dead- line is
excused by additional rulemaking requirements that  Congress has
imposed on agencies since the Mine Act was  passed in 1977, including
the Regulatory Flexibility Act of  1980 (as amended by the Small
Business Regulatory Enforce- ment Fairness Act of 1996), and the
Paperwork Reduction  Act of 1980. See 5 U.S.C. ss 601-612; 44 U.S.C.
ss 3501- 3520. Despite the increased requirements this legislation 
imposes on the agency, nothing in either of these general- purpose
statutes indicates a congressional intention to set  aside the
specific timetables of the Mine Act (or any other  statute). Nor are
we persuaded by MSHA's complaint that a  1993 executive order "makes
compliance with Section 101(a)'s  timetables virtually impossible," by
requiring agencies to  submit their rules for up to ninety days of
pre-publication  review by the Office of Management and Budget. MSHA
Br.  at 17 n.7; see Exec. Order No. 12,866, s 6(b)(2)(B), 58 Fed. 


Reg. 51,735, 51,742 (Sept. 30, 1993). Needless to say, the  President
is without authority to set aside congressional  legislation by
executive order, and the 1993 executive order  does not purport to do


We conclude that Congress meant what it said. In the  words of the
Senate Report, "[w]ithin 90 days of the certifica- tion of the hearing
record (or of the close of the comment  period if no hearing is
required), the Secretary is required to  issue his final rule or to
make a determination not to issue the  proposed rule." S. Rep. No.
95-181, at 20 (emphasis added).  As the Secretary concededly has done
neither here, she is in  clear violation of the Mine Act. See Barr
Labs., 930 F.2d at  74. Indeed, even if we were to read the statute
not as  specifying an express "timetable" for decision, but as merely 
providing an "indication of the speed with which [Congress]  expects
the agency to proceed," TRAC, 750 F.2d at 80, it  would still be clear
that the agency has transgressed congres- sional expectations. The
eight-year delay here is simply not  in the same ballpark as the
ninety-day period contained in the  statute, a timetable intended to
"eliminate the possibility of  ... lengthy standard promulgating
procedures." S. Rep. No.  95-181, at 20; see also id. at 18; H.R. Rep.
No. 95-312, at 17- 18 (1977); Oil, Chem. & Atomic Workers Int'l Union
v.  Zegeer, 768 F.2d 1480, 1488 (D.C. Cir. 1985) (noting "indica-
tions in the legislative history of the Mine Act that Congress  did
not expect MSHA to tarry for years over its health and  safety


B


Our conclusion that the Secretary has violated the deadline  set forth
in the Mine Act does not end the analysis. As we  have noted before,
"[e]quitable relief, particularly mandamus,  does not necessarily
follow a finding of a [statutory] viola- tion...." Barr Labs., 930
F.2d at 74. Indeed, not even the  UMWA urges us to hold the agency
strictly to a ninety-day  deadline. Accordingly, we must continue our
analysis of the  remaining TRAC factors to determine whether mandamus
is  appropriate in this case.


The UMWA contends that the third TRAC factor, which  directs us to be
particularly wary of delay when human health  and welfare are at
stake,6 also weighs in favor of mandamus.  MSHA responds that although
the rulemaking involves hu- man health and welfare, they are not "at
stake" because it has  "no scientific data that underground coal
miners are currently  suffering a significant risk of material
impairment from over- exposure to gaseous emissions in diesel
exhaust." Thaxton  Aff. p 8.7 While the UMWA cites some (primarily
anecdotal)  evidence regarding health effects from exposure to diesel 
exhaust, see UMWA Response to MSHA Sched. at 4 (Jan. 11,  1999), that
evidence fails to distinguish between the distinct  contributions of
diesel particulate matter (which MSHA ac- knowledges as a health
concern) and the diesel exhaust gases  at issue here. Moreover, MSHA
believes that the new diesel  equipment rules, already partially in
effect and scheduled to  take full effect this November, are
substantially reducing the  levels of gaseous emissions actually
occurring in mines re- gardless of the current PELs. See Thaxton Aff.


Even without fully crediting MSHA's data and predictions,  there is no
question that in this case we have substantially  less evidence that
delay would put human health at risk than  we had in Public Citizen
Health Research Group v. Auchter,  where we ordered OSHA to issue an
NPRM setting an  exposure limit for ethylene oxide (EtO) within thirty
days.  702 F.2d 1150, 1159 (D.C. Cir. 1983). In that case, the 
district court had found, supported by "[a]mple evidence in  the
record," id. at 1157, that workers were being "subjected  to grave
health dangers from exposure to ethylene oxide 




__________

n 6 As in Barr Laboratories, 930 F.2d at 75, in this case the third 
TRAC factor overlaps with the fifth, which directs us to "take into 
account the nature and extent of the interests prejudiced by delay." 
TRAC, 750 F.2d at 80.


7 See also NCI/NIOSH Interagency Project, A Cohort Mortali- ty Study
with a Nested Case-Control Study of Lung Cancer and  Diesel Exhaust
Among Non-Metal Miners 6 (1995) ("[T]he gases  and vapors in the
diesel exhaust ... are not thought to be strong  mutagens or
carcinogens at the levels at which they occur.").


within the currently permissible range," id. at 1153. See also  In re
International Chem. Workers Union, 958 F.2d 1144,  1150 (D.C. Cir.
1992) (requiring OSHA to adhere to schedule  in light of "admittedly
serious health risks associated with the  current permissible levels
of cadmium exposure"). Not only  is there no such evidence in the
record here, the UMWA has  not even suggested that a "grave danger to
human life" arises  from exposure to diesel gases at current levels.
Auchter, 702  F.2d at 1159.


MSHA also argues that since its entire regulatory agenda  concerns
health and welfare issues, the third TRAC factor  cannot carry as much
weight as it otherwise might. See  Sierra Club v. Thomas, 828 F.2d
783, 798 (D.C. Cir. 1987)  (noting that third TRAC factor "can hardly
be considered  dispositive when ... virtually the entire docket of the
agency  involves issues of this type"). In the circumstances of this 
case, that argument is just another way of invoking the fourth  TRAC
factor--the need to consider the consequences of  expediting one
rulemaking on the progress of other agency  priorities--when the
agency's other priorities also involve  human health and welfare.8 As
MSHA points out, the two  gases of concern here represent only a small
fraction of the  over 600 contaminants of mine air at issue in the
omnibus air  quality rulemaking. To single out diesel exhaust gases
and  designate them for expedited treatment might well delay 
rulemaking for other contaminants that are at least as dan- gerous to
the health of the nation's miners. See generally  Action on Smoking,
100 F.3d at 994; Barr Labs., 930 F.2d at  73, 75.


Indeed, citing the fourth TRAC factor, MSHA points to two  other
contaminants, not covered by the omnibus air quality  rulemaking, that
it ranks as considerably more dangerous  than diesel exhaust gases,
and whose control is thus of higher 




__________

n 8 Accord Sierra Club, 828 F.2d at 798 ("[W]hether the public  health
and welfare will benefit or suffer from accelerating this  particular
rulemaking depends crucially upon the competing priori- ties that
consume EPA's time, since any acceleration here may  come at the
expense of delay of EPA action elsewhere.").


priority to the agency: diesel particulate matter, the subject  of a
pending rulemaking noted above, and respirable dust,  which is
associated with black lung disease and silicosis. By  contrast to
diesel exhaust gases, the agency says, data shows  that exposure to
these contaminants does materially impair  the health of miners. MSHA
Sched. at 7-8 (Dec. 23, 1998);  see also 63 Fed. Reg. at 17,538; 63
Fed. Reg. 62,000, 62,000  (Nov. 9, 1998).


The UMWA does not disagree. It is sometimes the case  with mandamus
petitions that the agency's priorities are of  little concern to the
petitioner, whose goal is simply to force  its matter to the front of
the line. See Kenneth Culp Davis &  Richard J. Pierce, Jr.,
Administrative Law Treatise s 12.3, at  225 (3d ed. 1994) (noting that
judicial enforcement of statuto- ry deadlines may "confer on the
private parties who are  potential petitioners the discretion to
determine the agency's  priorities and its allocation of resources
among the tasks that  are subject to deadlines"). Here, however, the
UMWA can- didly stated at oral argument that it could not characterize
 diesel exhaust gases as its highest priority among all mine  safety
regulations. It agreed it was possible that the diesel  equipment
rules alone may have the desired effect of reduc- ing exposure to
those gases. And it further agreed that  control of diesel particulate
matter and respirable mine dust  rank as higher priorities. We must,
therefore, take care not  to craft a remedy for MSHA's statutory
violation that could  both interfere with the agency's internal
processes and dam- age the very interests the petitioner seeks to
protect. Com- pare Auchter, 702 F.2d at 1158 ("We would hesitate to 
require [OSHA] to expedite the EtO rulemaking if such a  command would
seriously disrupt other rulemakings of higher  or competing


C


Although there is insufficient record evidence that a sub- stantial
health risk would result from some further delay in  promulgating the
regulation petitioner seeks, and no dispute  that the agency's
priorities are appropriate, the fact remains 


that the delay here has been substantial. Congress directed  MSHA to
use "the latest available scientific data in the field"  to set
exposure standards that will ensure "that no miner will  suffer
material impairment of health or functional capacity."  30 U.S.C. s
811(a)(6)(A). Despite that statutory mandate,  the agency's PELs are
now twenty-seven years old, promul- gated at a time when coal mines
employed diesel engines with  far less frequency. See 30 C.F.R. s
75.322; 61 Fed. Reg. at  55,412. The same scientific organization that
authored the  PELs originally incorporated by MSHA now advocates lower
 airborne concentrations for many substances, including CO  and NO2;
indeed, it advocates reducing the current PEL for  CO by half and for
NO2 by two-fifths. See American Confer- ence of Governmental
Industrial Hygienists, TLVs and BEIs:  Threshold Limit Values for
Chemical Substances & Physical  Agents and Biological Exposure Indices
23, 52 (1999) (recom- mending that PEL for CO be lowered from 50 ppm
to 25, and  that PEL for NO2 be lowered from 5 ppm to 3). MSHA has 
failed "to meet its self-declared prior deadlines" for action on  air
quality standards, TRAC, 750 F.2d at 80,9 and concedes  that its
existing standards are "outdated," 54 Fed. Reg. at  35,762. However
many priorities the agency may have, and  however modest its personnel
and budgetary resources may  be, there is a limit to how long it may
use these justifications  to excuse inaction in the face of the
congressional command to  act within ninety days. Compare Sierra Club,
828 F.2d at  797 (denying writ where "[n]o statutory deadline limits
the  duration of rulemakings.... [and there is no] generalized 


Notwithstanding the length of time by which its decision on  this issue
is overdue, the agency's briefs contained no hint of 




__________

n 9 Compare 54 Fed. Reg. at 40,958 (stating in 1989 that "[b]ecause  of
the particular importance of such standards to miners exposed to 
diesel exhaust, the Agency further intends that the air quality 
rulemaking will be final by the time that this rulemaking on ... 
diesel equipment is complete"), with 61 Fed. Reg. at 55,420 (pro-
mulgating final equipment rules in 1996 but noting that "updated 
exposure standards ... remain[ ] in the rulemaking process for Air 


a schedule for coming into compliance with the Mine Act. To  the
contrary, the agency said only that it "continues to  vigorously work
on the portion of the [air quality] rulemaking  to which [it] has
given priority." MSHA Br. at 20. Since the  portion of the rulemaking
involving diesel exhaust gases is  concededly not the agency's
priority, that statement suggest- ed that MSHA was not working
"vigorously" on the matter at  issue here. At oral argument, MSHA was
somewhat more,  but not much more, forthcoming about its plans for
issuing  revised PELs for diesel exhaust gases.10


In light of the agency's vagueness, and in order to assist us  in
determining whether to exercise our discretion to issue the  requested
writ, on December 9, 1998 we directed MSHA to  file "a definite
schedule for completing rulemaking with re- spect to the diesel
emission gases, and an explanation justify- ing that schedule." In re
United Mine Workers of America  Int'l Union, No. 97-1109, at 2 (D.C.
Cir. Dec. 9, 1998)  (unpublished order).11 In response to our order,
the agency  submitted the following schedule "for completing
rulemaking  on the gases in diesel exhaust": (1) December 1999--com-
plete data collection; (2) June 2000--complete analysis of the  data,
decide whether to proceed with rulemaking, and publish  decision not
to proceed if that is the agency's conclusion; (3)  December
2000--issue new NPRM if the agency decides to  proceed with
rulemaking; (4) December 2001--promulgate  final rule. See MSHA Sched.




__________

n 10 Although there was some equivocating, we understood agency 
counsel to state that the agency expected it would take a year to 
issue an NPRM for revised PELs for diesel exhaust gases, and  another
year to promulgate a final rule--and we so noted in our  December 1998
order. MSHA's post-argument schedule lengthens  this projection by at
least a year, without explaining or even  mentioning the


11 See International Chem. Workers, 958 F.2d at 1147 (directing  OSHA,
after oral argument, to "file a report with the court indicat- ing the
status of the proposed rule and the date by which the  agency expects
to issue a final cadmium rule"); In re United  Steelworkers of
America, 783 F.2d 1117, 1119 (D.C. Cir. 1986).


This schedule and the explanations the agency offers for  each of its
four phases are not facially unreasonable. First, it  would not be
unreasonable for it to take MSHA a year (until  December 1999) to
collect additional data to determine wheth- er a regulation is still
necessary. Additional data regarding  current levels of exposure to
diesel exhaust gases is required,  the agency says, because it
currently has no data that miners  are suffering material impairment
from overexposure to such  gases, and because preliminary data
suggests that the new  diesel equipment rules have significantly
lowered the amount  of such gaseous emissions. This data collection
should be  accomplished when diesel emissions are greatest, the agency
 continues, which happens only during "longwall moves" that  occur
once or twice a year. Finally, the agency states that  data collection
cannot be completed until December 1999  because the impact of the new
equipment rules will not be  fully measurable until they completely
take effect in Novem- ber 1999. As the UMWA concedes that the diesel
equipment  rules may reduce exposure to diesel exhaust gases even with
 the current PELs in place, a plan to collect data on a one- year


Second, it would not be unreasonable for MSHA to require  six months
(until June 2000) to analyze the data, to decide  whether to proceed
with rulemaking regarding diesel exhaust  gases, and to publish a
decision not to proceed if that is its  conclusion. This phase is
drawn out somewhat because the  agency's resources are primarily
devoted to other priorities,  particularly respirable mine dust and
diesel particulate mat- ter. In light of these considerations, six
months would not be  an unreasonable amount of time to evaluate what
the agency  has collected, to determine whether exhaust gases need to
be  regulated, and to determine at least preliminarily whether, as 
required under the Mine Act, a lower standard is "feasib[le]."  30


Third, if MSHA does decide to go forward, the agency's  filing provides
a justification for taking another six months  (until December 2000)
to issue a new NPRM. The agency  plans to issue a new NPRM for diesel
exhaust gases, rather  than continue with the 1989 NPRM for the
omnibus air 


quality rulemaking, in part because of the Eleventh Circuit's  decision
in AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992).  In that case, the
court invalidated omnibus OSHA regulations  that revised PELs for 428
toxic substances because the  agency failed to analyze each individual
toxin with sufficient  particularity. MSHA fears that its 1989 omnibus
NPRM  could be vulnerable for the same reason. In addition, MSHA 
notes that it is now subject to statutory rulemaking require- ments
that were not considered in 1989, see 2 U.S.C. s 1501  et seq.
(Unfunded Mandates Reform Act of 1995); 5 U.S.C.  ss 601-612 (Small
Business Regulatory Enforcement Fair- ness Act of 1996), and that any
newly-proposed PELs would  be based on data not available when it
drafted the original  NPRM. Although it might still be possible for
MSHA to go  forward on the current rulemaking record, the agency's
plan  may well shorten the overall period of delay by resolving 
issues that would otherwise become the subject of litigation.  See
Sierra Club, 828 F.2d at 798-99 ("[B]y decreasing the  risk of later
judicial invalidation and remand to the agency,  additional time spent
reviewing a rulemaking proposal before  it is adopted may well ensure
earlier, not later, implementa- tion of any eventual regulatory


Finally, it would not be unreasonable for it to take MSHA a  year
(until December 2001) to complete the fourth phase of  the schedule,
running from the issuance of the NPRM  through the promulgation of a
final rule. By way of ratio- nale, the agency states that it is
required to provide a public  comment period, that it anticipates
receiving comments from  a substantial number of interested parties,
that it will have to  analyze those comments, and that it may then
have to revise  the rule to take the comments into account. It is
difficult for  us to second-guess this projection in light of the
"host of  complex scientific and technical issues" involved in the
pro- mulgation of revised PELs. United Steelworkers, 783 F.2d at 
1120; see id. (accepting 14-month period from NPRM to final 
rulemaking as not "facially unreasonable" in light of complex 
technical issues and fact that "OSHA obviously cannot know 


at present how many comments it will receive or the nature of  those
comments").12


In sum, a reasonably definite schedule along the above  lines would
represent a good faith effort by MSHA to come  into compliance with it
statutory obligations under the Mine  Act. The problem is that we
cannot fairly describe MSHA's  schedule as "reasonably definite." The
agency does not even  attempt to characterize the final promulgation
date as a  reliable estimate. See, e.g., MSHA Sched. at 13 ("[The
Secre- tary] will not be able to promulgate a final rule until at
least  December 2001.") (emphasis added). And although MSHA  appears
to characterize as firm the June 2000 date for  deciding whether to
proceed and the December 2000 date for  issuing a new NPRM,13 it
ultimately hedges even as to those  interim dates.14


To advise us that regulations will not issue until "at least  December
2001" is to provide no end-date at all. It is  unresponsive to our
order to provide a "definite schedule,"  and it offers no assurance
that the agency will remedy its  continuing violation of the Mine Act.
Accordingly, MSHA's  response is insufficient to justify its request
that we deny the  union's petition "in its entirety." MSHA Br. at 20.




__________

n 12 That said, MSHA must nonetheless be mindful of its statutory 
obligation to issue the final rule within ninety days of the
certifica- tion of the hearing record, or of the close of the public
comment  period if no hearing is held. 30 U.S.C. s 811(a)(4).


13 See MSHA Sched. at 8-9 ("If the Secretary determines [not to 
proceed], she will decide ... and will publish the reasons for that 
determination ... by June 2000.... [If] the Secretary decides  that
she will proceed with rulemaking on the gases in diesel  exhaust, she
will issue a new notice of proposed rulemaking by  December 2000.")
(emphasis added) (as corrected Jan. 13, 1999).


14 See, e.g., MSHA Sched. at 4 ("[I]t will take at least a year to 
collect a sufficient body of data...."); id. at 6 ("[I]t will take at 
least six months to review and analyze the data...."); id. at 12 
("[I]t will take at least six months from the time the Secretary 
decides to proceed ... to the time the Secretary issues a notice of 
proposed rulemaking.") (emphasis added in all parentheticals).


while the considerations recounted in Parts III(A) and III(B)  persuade
us that issuance of a writ of mandamus at this time  could do more
harm than good, we accept the UMWA's  alternative suggestion that we
retain jurisdiction of this mat- ter. UMWA Reply Br. at 8 (Aug. 5,
1998); see Monroe, 840  F.2d at 947; TRAC, 750 F.2d at 80-81; In re
Center for Auto  Safety, 703 F.2d 1346, 1354 (D.C. Cir. 1986).


IV


For the foregoing reasons, the court will retain jurisdiction  over
this case until there is a final agency disposition that  discharges
MSHA's obligations under the Mine Act. The  agency is directed to
advise the court on the date such  disposition occurs, and of the
status of this matter on each of  the following dates unless final
disposition has already oc- curred: December 31, 1999; June 30, 2000;
December 31,  2000; and December 31, 2001. Prior to final agency
action,  the UMWA may petition this court to grant additional appro-
priate relief in the event MSHA fails to adhere substantially  to a
schedule that would, as described in Part III(C), consti- tute a good
faith effort by MSHA to come into compliance  with the Mine Act. See
Monroe, 840 F.2d at 947; TRAC, 750  F.2d at 80-81; see also Zegeer,
768 F.2d at 1488 ("[I]f MSHA  should fail to act with appropriate
diligence in following the  estimates it has tendered to this court,
petitioners may invoke  our authority to direct MSHA to complete the
rulemaking  process with due dispatch.").


So ordered.