In Re United Mine Workers of America International Union

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 1998 Decided September 3, 1999

No. 97-1109

In re United Mine Workers of America
International Union,
Petitioner

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 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, 35,762

__________
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 (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 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 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.
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

__________
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 PELs).

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-

__________
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

__________
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 delayed.' "

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.

__________
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 (1977). This sentence,

__________
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 uncertified.

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 process. Id.

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 so.

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 rulemakings").

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. p 12.

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

__________
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

__________
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 priority.").

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
congressional mandate for EPA to expedite").

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

__________
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
Quality standards").

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. at 2, 9 (as corrected Jan. 13,
1999).

__________
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 discrepancy.

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 schedule would not be unreasonable.

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 U.S.C. s 811(a)(6)(A).

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 scheme.").

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. And

__________
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.