National Mining Association v. MSHA ( 2010 )

Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2010 Decided March 19, 2010
No. 08-1241
NATIONAL MINING ASSOCIATION,
PETITIONER
v.
MINE SAFETY AND HEALTH ADMINISTRATION AND
SECRETARY OF LABOR,
RESPONDENTS
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND
SERVICE WORKERS INTERNATIONAL UNION,
INTERVENOR
Consolidated with No. 09-1087
On Petitions for Review of an Order
of the Federal Mine Safety & Health Administration
Daniel W. Wolff argued the cause for petitioner National
Mining Association. With him on the briefs were Thomas C.
Means and Edward M. Green.
Henry Chajet argued the cause and filed the briefs for
petitioner Methane Awareness Resources Group.
2
Edward D. Sieger, Senior Appellate Attorney, U.S.
Department of Labor, argued the cause for respondents the
Secretary of Labor and Mine Safety and Health Administration.
With him on the brief were Deborah Greenfield, Acting Deputy
Solicitor of Labor, and W. Christian Schumann, Counsel.
Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for respondents Secretary of Health and
Human Services and National Institute for Occupational Safety
and Health. With him on the brief was Mark B. Stern, Attorney.
Dana J. Martin, Attorney, entered an appearance
Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The National Mining Association
(“NMA”) and the Methane Awareness Resources Group
(“MARG”) (hereinafter, together “industry”) petition for review
of the Mine Safety and Health Administration’s (“MSHA’s”)
decision to enforce a final exposure limit standard addressing
health risks presented by exposure of miners in metal and non-
metal underground mines to diesel particulate matter (“DPM”)
in diesel exhaust. The decision, announced May 20, 2008,
represented a change in MSHA’s earlier expressed intent to
issue a proposed rule to convert the final DPM exposure
standard from a total carbon (“TC”) to an elemental carbon
(“EC”) measurement. See Diesel Particulate Matter Exposure,
Notice of Enforcement of DPM Final Limit and Withdrawal of
Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20,
2008) (“2008 Notice”). On the same date, MSHA issued
Program Policy Letter P08-IV-01 (“2008 Policy Letter”)
describing how it intended to enforce the DPM standard.
Industry contends MSHA’s decision was arbitrary and
capricious because inadequately explained and unsupported by
scientific data, contrary to a 2002 settlement and to MSHA’s
statements to this court, and without public notice or opportunity
to comment. MARG individually challenges the failure of the
National Institute of Occupational Safety and Health (“NIOSH”)
to release a study on DPM. For the reasons that follow, we deny
3
the industry petitions and dismiss MARG’s individual
challenges for lack of jurisdiction.
I.
The Mine Act provides that MSHA shall “develop,
promulgate, and revise as may be appropriate, improved
mandatory health or safety standards for the protection of life
and prevention of injuries in coal or other mines.” 30 U.S.C.
§ 811(a). For “toxic materials or harmful physical agents,”
MSHA “shall set standards which most adequately assure on the
basis of the best available evidence that no miner will suffer
material impairment of health or functional capacity” and, “[i]n
addition to the attainment of the highest degree of health and
safety protection for the miner, other considerations shall be the
latest available scientific data in the field, the feasibility of the
standards, and experience gained under this and other health and
safety laws.” Id. § 811(a)(6)(A). A new mandatory health or
safety standard may not provide less protection to miners than
an existing mandatory standard. Id. § 811(a)(9). A person
adversely affected by a mandatory health or safety standard
promulgated under section 811 may petition for judicial review
of the standard within 60 days after the standard is promulgated.
Id. § 811(d).
Based on an assessment of the risk to miners of adverse
health effects from DPM, MSHA promulgated a rule in January
2001 limiting the airborne concentration of DPM in
underground metal and non-metal mines. See Diesel Particulate
Matter Exposure, 66 Fed. Reg. 5706 (Jan. 19, 2001) (“2001
Rule”). The 2001 Rule set both interim and final DPM
concentration standards, using TC measurements as a surrogate
for measuring DPM; the interim DPM standard was to take
effect in July 2002. Id. at 5706–07, 5726–27. The concentration
limits were expressed as the number of micrograms of TC per
cubic meter of air. After several petitions for review of the 2001
Rule were filed (including petitions by NMA and MARG),
MSHA entered into a settlement agreement in July 2002
postponing the effective date of the interim DPM standard of
400 TC from July 2002 to July 2003, and requiring MSHA to
propose an expedited rulemaking to change the DPM surrogate
4
from TC to EC; the pending petitions for review were to be
dismissed upon completion of the expedited rulemaking. See
Diesel Particulate Matter Exposure, 67 Fed. Reg. 47,296,
47,297–99 (July 18, 2002) (“2002 Settlement”).
Thereafter MSHA revised the 2001 Rule twice. In 2005,
based on scientific data showing a TC:EC ratio of 1.3:1 for
converting EC measurements to TC measurements at certain TC
concentrations, MSHA converted the interim DPM standard
from 400 TC to 308 EC. See Diesel Particulate Matter
Exposure, 70 Fed. Reg. 32,868, 32,870 (June 6, 2005) (“2005
Rule”). MSHA explained that although the scientific data
indicated this single, constant conversion factor was appropriate
at 400 TC, the data were not adequate to convert the final DPM
standard of 160 TC to an EC measurement. Id.; see also Diesel
Particulate Matter Exposure, Proposed Rule, 70 Fed. Reg.
53,280, 53,287 (Sept. 7, 2005) (“2005 Proposed Rule”). In
2006, MSHA postponed the effective date of the final DPM
standard of 160 TC from January 2006 to May 20, 2008, and set
an interim standard of 350 TC to become effective in January
2007. See Diesel Particulate Matter Exposure, 71 Fed. Reg.
28,924, 28,978 (May 18, 2006) (“2006 Rule”). MSHA
reiterated that the scientific data were not adequate for
converting the final DPM standard of 160 TC to EC and stated
that it intended to consider the TC-to-EC conversion in a
separate rulemaking. Id. at 28,976, 28,983.
In February 2007, this court upheld the 2001, 2005, and
2006 Rules setting DPM standards. In Kennecott Greens Creek
Mining Co. v. MSHA, 476 F.3d 946 (D.C. Cir. 2007), the court
rejected challenges to the sufficiency of evidence of health risk
for miners from DPM and to compliance feasibility for mine
operators, and concluded MSHA reasonably chose TC as a
surrogate for measuring DPM in view of evidence of their tight
correlation and the fact that MSHA has a reliable method for
determining the amount of TC in a sample. Id. at 955. The
court also rejected claims that MSHA was arbitrary and
capricious in not converting to EC the interim DPM standard of
350 TC and the final DPM standard of 160 TC, as MSHA had
done in 2005 for the interim DPM standard of 400 TC. The
court observed that “MSHA has clearly stated in its rules that
5
TC can still serve as a consistent and reliable surrogate for DPM
as long as samples are taken in areas away from tobacco smoke
and oil mist.” Id. at 956. The court noted MSHA had stated it
would initiate a new rulemaking regarding conversion of the
final standard from TC to EC. The court concluded:
In sum, MSHA has concluded that EC is a better proxy
for DPM than TC, but this does not automatically
render the use of TC to be arbitrary and capricious.
Even though TC sampling is more difficult than EC
sampling, MSHA has reasonably determined that TC
can still be a reliable proxy for DPM as long as
samples are taken in the proper manner. In any event,
MSHA’s rulemaking suggests that it has no intention
of using TC as a stand alone proxy.
Id.On May 20, 2008, MSHA gave public notice of its decision
to enforce the final DPM standard of 160 TC and to withdraw its
intent to propose a rule converting 160 TC to EC. 2008 Notice,
73 Fed. Reg. at 29,058–59. In the 2008 Notice, MSHA
explained that the latest available scientific evidence did not
identify a single, constant conversion factor for EC below 230
TC. Id. at 29,059. It referenced an article about a study of four
underground mines (two stone mines and two metal mines),
which stated that the correlation between TC and EC varies
below 230 TC and that the TC:EC ratio is highly variable below
160 TC. J.D. Noll et al., Relationship between Elemental
Carbon, Total Carbon, and Diesel Particulate Matter in Several
Underground Metal/Non-metal Mines, 41 Envtl. Sci. & Tech.
710, 715 (2007) (“Noll-Bugarski Study”); see 2008 Notice, 73
Fed. Reg. at 29,059. It also referenced a consultant’s report
advising that because the Noll-Bugarski Study showed that the
variability of the TC:EC ratio increases as DPM levels decrease,
EC measurements would not be an appropriate surrogate for
DPM at 160 TC; the report discussed four sampling strategies
for enforcing the 160 TC standard. J. Kogut, Alternative
Strategies for Enforcing a DPM Exposure Limit 1 (Sept. 2007)
(“Kogut Report”); see 2008 Notice, 73 Fed. Reg. at 29,059–60.
The 2008 Notice stated that MSHA would provide a “protocol
6
for calculating a location specific adjustment” to a miner’s
personal sample based on TC and EC measurements. 73 Fed.
Reg. at 29,059. On the same date, May 20, 2008, MSHA also
issued the 2008 Policy Letter describing how it intended to use
a miner’s personal TC sample and samples from areas of a mine
to validate whether the miner’s DPM exposure had exceeded the
160 TC standard. Industry filed petitions for review; NMA filed
a petition in this court and MARG then filed a petition in the
Fifth Circuit, which granted MSHA’s motion to transfer
MARG’s petition to this court.
II.
Industry contends that in withdrawing the promised
rulemaking and simultaneously issuing its enforcement strategy,
MSHA failed to provide an adequate explanation, relied on a
scientific article and a consultant’s report that do not address
whether identifying a TC:EC conversion factor is too difficult,
and directly contradicted what MSHA had told this court in
2007. Further, industry notes, MSHA had agreed as part of the
2002 Settlement to propose a final DPM standard that used EC
instead of TC as a DPM surrogate. In these circumstances,
industry contends that MSHA should be required to provide
notice and afford the public an opportunity to comment on the
basis for its change of position, and seeks a stay of the 160 TC
standard and a remand of MSHA’s rulemaking withdrawal and
enforcement strategy publication with instructions to MSHA to
engage in further notice-and-comment rulemaking.
This court has jurisdiction under the All Writs Act, 28
U.S.C. § 1651, to review industry’s challenge to the 2008 Notice
on the ground that MSHA was arbitrary and capricious in
deciding not to propose a rule to convert the final DPM standard
of 160 TC to EC. The All Writs Act provides that federal courts
“may issue all writs necessary or appropriate in aid of their
respective jurisdictions.” Id. § 1651(a). As this court explained
in the context of MSHA’s withdrawal of a proposed rule in
International Union, United Mine Workers of America v. U.S.
Department of Labor, 358 F.3d 40, 43 (D.C. Cir. 2004), “the
withdrawal of a proposed rule defeats this [c]ourt’s prospective
jurisdiction” because such withdrawal is similar to unreasonable
7
delay of agency action. This court’s authority to review the
withdrawal of MSHA’s published intention to propose a rule to
convert the final DPM standard of 160 TC to EC is a similar
“necessary implication” of the court’s jurisdiction to address
claims of unreasonable agency delay in order to protect the
court’s prospective jurisdiction over the final rule resulting from
the promised proposed rule. Id. Upon applying the arbitrary
and capricious standard of review, see id., we conclude MSHA
was not arbitrary and capricious in issuing the 2008 Notice.
“‘[A]n agency’s refusal to institute rulemaking proceedings
is at the high end of the range’ of levels of deference we give to
agency action under our ‘arbitrary and capricious’ review.”
Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C. Cir.
2008) (quoting Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1,
4–5 (D.C. Cir. 1987)). The 2008 Notice advised that MSHA
would enforce the final DPM standard of 160 TC and not
convert it to EC because MSHA “could not identify a single,
constant conversion factor for EC at any level below 230 TC.”
2008 Notice, 73 Fed. Reg. at 29,059. MSHA’s decision has
ample support in the record. MSHA explains that, consistent
with the efficiency requirements for instituting a rulemaking, see
Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993),
and the Mine Act’s requirement that a new mandatory health or
safety standard may not provide less protection to miners than
an existing mandatory standard, see 30 U.S.C. § 811(a)(9), it did
not institute a rulemaking to convert the DPM standard of 160
TC to EC because it lacked scientific data necessary to identify
a single, constant EC conversion factor that would ensure no
impairment of the miner protection achieved under the DPM
standard of 160 TC. In the 2005 Proposed Rule MSHA alerted
industry (and others) generally that the TC:EC conversion ratio
of 1.3 might not apply at DPM concentrations lower than 400
TC and requested comments on how to make the conversion.
See 2005 Proposed Rule, 70 Fed. Reg. at 53,287. In response,
NMA and several mine operators agreed more scientific
research was needed, while MARG argued the DPM standard of
160 TC could not be converted to EC and should be deleted
8
from the DPM rule.1 The year after this court’s 2007 decision
in Kennecott, MSHA concluded that the latest available
scientific evidence appeared in the February 2007 Noll-Bugarski
Study, whose authors had found that the variability of the
TC:EC ratio increases below 230 TC. See 2008 Notice, 73 Fed.
Reg at 29,059. In the absence of other data MSHA thus
concluded it could not identify a single, constant TC:EC
conversion factor below 230 TC. See id. NIOSH agreed that
MSHA’s evidence did not allow identification of a constant
TC:EC conversion factor below 230 TC. In these
circumstances, MSHA could reasonably conclude it lacked a
way to convert the TC standard to EC at the 160 TC level using
a constant conversion factor.
Industry properly acknowledges that MSHA can abandon
a prior contemplated course of action if it offered an adequate
explanation. See Int’l Union, UMWA, 358 F.3d at 45. But
industry contends MSHA’s explanation was superficial,
implausible, and contrary to facts of record. Specifically NMA
maintains that neither the Noll-Bugarski Study nor the Kogut
Report support MSHA’s May 20, 2008 decision. The Noll-
Bugarski Study, as NMA suggests, was limited to the actual in-
1
The comments included NMA’s statement that “NMA must
insist that . . . the final outcome of the rulemaking to be conducted by
MSHA on a TC to EC conversion factor will result in an accurate,
scientifically supportable conversion factor.” The Stillwater Mining
Company commented that “Stillwater believes that additional research
is needed in order to determine an appropriate conversion factor.” So
too, the FMC Corporation commented that it “respectfully suggests
that MSHA wait for the NIOSH . . . study report to be issued so that
NIOSH can share their scientific determination of the potential risks
and feasibility related to DPM.” And Kennecott Greens Creek Mining
Company and its parent Kennecott Minerals Holding Company
(“KMC”) commented that they “agree with MSHA that more work is
required to develop an appropriate conversion factor from TC to EC
for the proposed phased-in final limits. . . . [I]dentifying an accurate,
scientifically supportable, and peer-reviewed conversion factor is
absolutely fundamental to KMC’s acceptance of any staggered
effective date schedule.” MARG stated that “the proposed conversion
of TC limits to EC limits is not feasible” and that it “is hopeful that
MSHA will finally correct its flawed rules, by deleting the 160 limit.”
9
mine data of only four mines, which the authors acknowledged
did not necessarily provide a good representation of all
metal/non-metal mines. See Noll-Bugarski Study, 41 Envtl. Sci.
& Tech. at 715. True enough, but this does not meet MSHA’s
point that the Noll-Bugarski Study was the latest scientific
evidence. See 2008 Notice, 73 Fed. Reg. at 29,059.
Contrary to industry’s view, there was no inconsistency
between MSHA’s position in Kennecott that it could enforce the
DPM standard of 160 TC and its statement in 2006 that to
enforce the standard it needed “to validate a TC sample result,
which cannot be done without an appropriate conversion factor
for EC at that level,” 2006 Rule, 71 Fed. Reg. at 28,976. As
MSHA states in its brief, “[i]n context, the statement addressed
MSHA’s inability to identify a practical sampling strategy that
would adequately remove organic carbon interferences,” MSHA
Resp’t Br. 21, and was not, as industry asserts, a statement that
MSHA could not enforce the DPM standard of 160 TC without
converting it to EC. The Kogut Report provided MSHA with
practical sampling strategies to enforce the DPM standard of
160 TC and thus supported MSHA’s decision to enforce this
standard. NMA misses the mark when objecting that the Kogut
Report provided no support for MSHA’s decision to enforce the
DPM standard of 160 TC because it did not address the
feasibility of finding a TC:EC conversion factor. Although
NMA claims that MSHA should have done further work on the
EC conversion instead, it was within MSHA’s discretion, given
the data available, simply to allow the 160 TC standard to take
effect under the previously promulgated rule rather than to
embark on a conversion of that standard to EC. See Prof’l
Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d
1216, 1222 (D.C. Cir. 1983).
Industry also contends that MSHA acted arbitrarily because
its decision not to proceed with a rulemaking on converting the
160 TC standard to EC flies in the face of the rulemaking
promise MSHA made in its brief to this court in Kennecott.
However, MSHA’s brief to the court addressed several options
open to the court in disposing of the petitions in Kennecott, one
of which was to uphold the DPM standard of 160 TC, see
Kennecott, Resp’ts Br. 32–36, 2006 WL 3622119, which is what
10
the court did. This hardly indicates MSHA misled the court into
thinking the validity of the DPM standard of 160 TC was
contingent on its conversion to EC. To the extent NMA
suggests the court in Kennecott took “some comfort,” Pet’r
NMA Br. 21, that upholding the reasonableness of the final TC
standard would be of limited consequence in the long run
because MSHA had “no intention of using TC as a stand alone
proxy,” Kennecott, 476 F.3d at 956, NMA reads into the court’s
holding a qualification that is not there. The court simply
recognized that the DPM standard of 160 TC could have a
limited impact if MSHA made the EC conversion or, if MSHA
did not make the conversion, that it could be enforced with
additional sampling strategies. And the fact that MSHA
offered—and the court in Kennecott rejected—the option of
declining to rule on the final TC standard because of the
likelihood that it would be converted to EC does not render the
2008 Notice an arbitrary and capricious “withdraw[al] from a
promised action without notice and comment.” Pet’r NMA Br.
23. The analogy NMA suggests to Weaver v. U.S. Information
Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996), where an agency
adopted an interpretation of a rule that it urged upon the court
and the opposing party, and so was bound by that position in the
future unless it explained the basis for a contrary position, is
inapt.
MSHA’s “pledge” to convert 160 TC to EC, Pet’r NMA Br.
23, was conditioned on having scientific data to support a
conversion for EC at low TC levels. See 2005 Rule, 70 Fed.
Reg. at 32,870 (converting the 400 TC interim DPM standard to
308 EC but stating “evidence in the record is inadequate for
MSHA to make determinations regarding revisions to the final
DPM limit” standard of 160 TC); 2005 Proposed Rule, 70 Fed.
Reg. at 53,287 (suggesting the 1.3 TC:EC conversion factor may
not be appropriate for 160 TC and requesting comments on
using EC and TC measurements); 2006 Rule, 71 Fed. Reg. at
28,983 (concluding the DPM rulemaking record was inadequate
for converting 160 TC to EC, and stating MSHA’s intent to
consider TC and EC conversion comments in a separate 160 TC
conversion rulemaking). The record indicates that MSHA did
not have the needed data to identify a TC:EC conversion
constant at 160 TC before the final DPM standard of 160 TC
11
was to take effect in May 2008. Thus, in the 2008 Notice,
MSHA stated it had concluded “insufficient data exist to
proceed with further rulemaking to convert the DPM final limit
using a single, constant conversion factor” based on the “latest
scientific evidence” in the Noll-Bugarski Study that the TC:EC
ratio varies below 230 TC, but indicated that MSHA “will
continue to monitor and encourage research in this field.” 73
Fed. Reg. at 29,059–60.
NMA’s suggestion that MSHA’s “misrepresentations,”
Pet’r NMA Br. 22, albeit unintentional, cast a cloud over the
legitimacy of the DPM standard of 160 TC does not advance its
position. In Kennecott the court upheld the DPM standard, and
MSHA’s options for its effective enforcement improved with the
Kogut Report. Contrary to NMA’s view, MSHA in May 2008
was thus not “exactly where it was in 2006,” Pet’r NMA Br. 23,
with respect to reliable enforcement of the DPM standard of 160
TC in the absence of an EC conversion factor. Instead, what
NMA mistakenly characterizes as MSHA’s prior “commit[ment]
to an EC standard rulemaking for the final [DPM standard] as a
matter of necessity,” id. at 22, had evolved upon receipt of the
latest scientific data.
Industry is on no firmer ground in contending that the 2008
Notice’s withdrawal of MSHA’s rulemaking intent violated the
terms of the 2002 Settlement arising from challenges to the 2001
Rule. It is true that MSHA agreed in the 2002 Settlement to
propose a final DPM exposure limit that used EC as the DPM
surrogate. However, industry repudiated the 2002 Settlement
when it petitioned for review of the 2001 Rule in Kennecott.
See Village of Kaktovik v. Watt, 689 F.2d 222, 231 (D.C. Cir.
1982). NMA retreats from this contention in its reply,
presumably recognizing it is not in a position to bind MSHA to
a settlement NMA repudiated. MARG considers MSHA to be
still bound by the 2002 Settlement’s provision requiring
completion of the EC rulemaking before dismissal of the
pending DPM petitions, but the issues in the pending petitions
were litigated in Kennecott; even if MSHA had completed the
contemplated EC rulemaking there would be no pending
petitions to dismiss. As the court noted in Village of Kaktovik,
689 F.2d at 231, “[a] live and enforceable settlement simply
12
cannot coexist with a party’s efforts to acquire a court
determination of the very issues the settlement was supposed to
resolve without litigation.” MSHA was no longer bound by the
2002 Settlement when it issued the 2008 Notice.
NMA is mistaken when it suggests that on the basis of the
Noll-Bugarski Study, MSHA effectively “repromulgated the 160
TC standard.” Pet’r NMA Br. 19. The DPM standard of 160
TC was set to take effect on May 20, 2008 pursuant to the 2006
Rule upheld in Kennecott. See 30 C.F.R. § 57.5060(b)(3); 2006
Rule, 71 Fed. Reg. at 29,012. Absent a stay or amendment to
the 2006 Rule, the final DPM standard of 160 TC would take
effect by operation of law irrespective of the 2008 Notice and so
the 2008 Notice was not a repromulgation requiring notice and
comment under the Administrative Procedure Act (“APA”), 5
U.S.C. § 553. As the court observed in ICORE, Inc. v. FCC,
985 F.2d 1075, 1082 (D.C. Cir. 1993), an agency does not enact
a new rule when a transition rule expires or when the agency
decides not to modify a rule, states that additional study is
needed, or concludes that no new transition rule is needed.
Finally, industry contends the 2008 Notice’s withdrawal of
MSHA’s rulemaking intent was unlawful because MSHA did
not provide notice of or opportunity for comment on its action
as required by the Mine Act, 30 U.S.C. § 811(a), and the APA,
5 U.S.C. § 553. In industry’s view MSHA substituted for the
promised EC standard the 2008 Notice’s enforcement strategy,
without giving prior public notice or opportunity for comment
on either its intent to do so or the data on which it relied. NMA
contrasts this circumstance with what would have happened if
the Noll-Bugarski Study and the Kogut Report had been part of
the rulemaking record in Kennecott. It cites American Radio
Relay League, Inc. v. FCC, 524 F.3d 227, 239 (D.C. Cir. 2008),
where the court held the agency had to make public and
available for comment those studies on which it relied, including
the redacted pages on which the agency claimed not to have
relied. This contention, as framed by NMA, does not challenge
MSHA’s failure to afford notice of and opportunity to comment
on the 2008 enforcement strategy itself, but rather MSHA’s
failure to afford notice of and opportunity to comment on the
Noll-Bugarski Study and the Kogut Report before dropping the
13
idea of issuing a notice of proposed rulemaking. See Pet’r NMA
Br. 1-2, 8, 28, 30. (Although NMA states in a footnote in its
principal brief that MSHA “also promulgated, again with no
opportunity for notice and comment, a complex six-page
program policy letter,” Pet’r NMA Br. 29 n.7, this footnote
statement is not sufficient to preserve the issue. See Wash.
Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.
Cir. 1997).)
NMA contends that MSHA failed to comply with required
notice and comment procedures by withdrawing its intent to
propose a TC to EC conversion rulemaking and simultaneously
issuing an enforcement strategy for the DPM standard of 160 TC
“without giving prior notice of, and an opportunity to comment
on, their intent to do so or the data that informed that decision.”
Pet’r NMA Br. 2. However, the 2008 Notice was not subject to
APA notice and comment procedures. It neither enacted a new
rule, since the 160 TC standard would have replaced the interim
DPM standard on May 20, 2008 regardless of the 2008 Notice,
nor modified the 160 TC standard, and “[n]ot modifying a rule
is not the same as ‘formulating, amending, or repealing a rule,’
the APA definition of ‘rule making’” provided by 5 U.S.C.
§ 551(5). See ICORE, 985 F.2d at 1082. In addition, MSHA’s
statement in the 2006 Rule that it intended to propose a
rulemaking to convert the 160 TC standard to EC is similar to
the comment in a rulemaking by the agency in ICORE that
further study was needed. The court in ICORE held that “[a]n
agency statement in one rulemaking, that a pending study may
generate need for another, neither initiates a second rulemaking
nor cancels the timetable adopted in the first rulemaking.” Id.
Nor did MSHA adopt a new rule when it concluded in the 2008
Notice that no EC conversion was needed for the 160 TC
standard. Id. NMA’s reliance on rulemaking precedent such as
American Radio Relay League, 524 F.3d 227, in maintaining
that MSHA had to disclose critical factual data, is thus
inapposite. Moreover MSHA, while claiming on appeal that it
was not legally obligated to disclose the data, notes that the
Noll-Bugarski Study was published and made available on
NIOSH’s website, and that in April 2009 MSHA released the
unredacted Kogut Report as well. See Resp’t MSHA Br. 13 n.2
& 26 n.3; Pet’r NMA Br. 9 n.3.
14
III.
MARG individually contends this court should order
NIOSH to comply with the Federal Advisory Committee Act
(“FACA”), 5 U.S.C. app. 2, and prior court orders by providing
Congress, MARG, and intervenor union with information
involving NIOSH’s study. It also individually contends this
court should order NIOSH to release its study to MSHA and the
public, and should remand the instant case to MSHA with
instructions to reopen the DPM rulemaking, add the NIOSH
study to the rulemaking record, and consider this study in
promulgating final DPM rules. To accomplish this goal, MARG
has joined NIOSH and its parent the U.S. Department of Health
and Human Services (“HHS”) as respondents. We must dismiss
these requests for lack of jurisdiction.
First, NIOSH and HHS are not proper respondents for two
reasons. Under the Mine Act, petitions for review are
authorized to the extent they challenge the validity of a U.S.
Department of Labor mandatory health or safety standard
promulgated pursuant to the Mine Act. 30 U.S.C. § 811(d).
Although NIOSH is authorized by 29 U.S.C. § 671(c)(1) to
“develop and establish recommended occupational safety and
health standards,” this provision is not part of the Mine Act.
The Mine Act references NIOSH and HHS as providers of
information to MSHA, see 30 U.S.C. § 811(a)(1), but it does not
provide a basis for naming respondents other than the agency
that promulgated the challenged standard. Under section 811(d),
a petition challenging a MSHA standard may be filed only if the
petitioner is adversely affected by a mandatory Department of
Labor health or safety standard promulgated pursuant to section
811 and the petition is challenging the validity of that standard.
In a similar situation, the court held in Bangor Hydro-
Electric Co. v. FERC, 78 F.3d 659, 661–62 (D.C. Cir. 1996),
that although the U.S. Department of the Interior was authorized
to participate in and have its views made part of a FERC order,
only FERC was a proper respondent where the Federal Power
Act, 16 U.S.C. § 825l(b), provided for review of a petition filed
by a person aggrieved by the order issued by FERC and asking
that the FERC order be modified or set aside. Similarly, as
15
NIOSH suggests, only Department of Labor entities can be
proper respondents to a petition filed pursuant to the Mine Act,
30 U.S.C. § 811(d). Cf. Oil, Chem. & Atomic Workers Local
Union No. 6-418 v. NLRB, 694 F.2d 1289, 1298 (D.C. Cir.
1982). Although MARG asserts NIOSH is a proper respondent
because the validity of MSHA’s DPM rule depends on the
information MSHA considered, the contents of the rulemaking
record must be resolved in litigation with MSHA itself. Statutes
such as the Mine Act and the Federal Power Act authorizing
rulemaking contributions by other agencies do not thereby make
the other agencies parties in a subsequent judicial challenge.
See, e.g., Bangor Hydro-Elec., 78 F.3d at 662. If MARG
prevailed here, the result would be a remand to MSHA. Thus,
consistent with our precedent, only MSHA and its parent, the
Department of Labor, are proper respondents. NIOSH and HHS
are powerless to rescind a mandatory health or safety standard
promulgated by MSHA, and their participation as respondents
serves no meaningful purpose.
Additionally, pursuant to Federal Rule of Appellate
Procedure 15,2 the agency to be named as a respondent to a
petition challenging an agency order is the parent agency and its
subparts that promulgated the challenged action. See Ingalls
Shipbuilding, Inc. v. Dir., Office of Workers’ Compensation
Programs, 519 U.S. 248, 267 (1997). MARG’s individual
petition challenges MSHA’s 2008 Notice and 2008 Policy
Letter, which MARG styles as a “final rule.” Pet’r MARG Br.
ii. But as Ingalls Shipbuilding makes clear, MARG properly
named only MSHA and its parent the Department of Labor as
respondents. Therefore, we dismiss NIOSH and HHS as
respondents.
Second, regarding the FACA claim, insofar as MARG seeks
enforcement of the order issued by the U.S. District Court for
the Western District of Louisiana, see MARG v. United States,
No. 96-2430 (W.D. La. June 5, 2001), its request must be
2
Federal Rule of Appellate Procedure 15(a)(2) provides that
a petition for review of an agency order “must: . . . (B) name the
agency as a respondent . . .; and (C) specify the order or part thereof
to be reviewed.”
16
directed to that court. See Baker ex rel. Thomas v. General
Motors Corp., 522 U.S. 222, 236 (1998); Peters v. Nat’l R.R.
Passenger Corp., 966 F.2d 1483, 1487–88 (D.C. Cir. 1992).
This court lacks jurisdiction.
Third, to the extent MARG maintains NIOSH has
unreasonably delayed publication of its DPM study and seeks to
compel agency action unreasonably delayed, its claim must be
brought initially in a district court (assuming it can be brought).
See Moms Against Mercury v. FDA, 483 F.3d 824, 827 (D.C.
Cir. 2007); see also Weber v. United States, 209 F.3d 756,
758–59 (D.C. Cir. 2000). The APA contains no grant of
jurisdiction. See Int’l Union, UMWA, 358 F.3d at 42. Although
a court may exercise authority under the All Writs Act, 28
U.S.C. § 1651, to issue writs of mandamus necessary to protect
its prospective jurisdiction, see Telecomms. Research & Action
Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984) (“TRAC”), this
court’s interest in protecting its future jurisdiction “does not
arise if the final agency action is not reviewable” in this court,
Moms Against Mercury, 483 F.3d at 827. MARG points to no
statute that would authorize this court to review NIOSH’s study
upon its completion. See Weber, 209 F.3d at 758–59; see also
Bennett v. Spear, 520 U.S. 154, 178 (1997). Mandamus is an
extraordinary remedy unavailable where the right to relief is not
clear or where another adequate remedy is available. See Ass’n
Flight Attendants-CWA v. Chao, 493 F.3d 155, 159 (D.C. Cir.
2007); Cmty. Nutrition Inst. v. Young, 773 F.2d 1356, 1361
(D.C. Cir. 1985). In any event, MARG’s petition did not
indicate it sought mandamus relief from NIOSH and HHS, and
MARG has not filed a separate petition for mandamus. See FED.
R. APP. P. 21(a). MARG invokes no other statute that would
allow this court to exercise jurisdiction.
MARG’s effort to have this court exercise its ancillary
jurisdiction fails. MARG points to no precedent suggesting this
court should exercise ancillary jurisdiction as to another agency
when it is exercising jurisdiction under the All Writs Act to
address MSHA’s withdrawal of its intent to issue a proposed
rule. These circumstances do not suggest this is an occasion
where “substantial considerations of fairness or efficiency
demand” the exercise of auxiliary jurisdiction. Public Citizen,
17
Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279,
1288 (D.C. Cir. 2007) (quotation marks omitted). Moreover, in
In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004), this court
cautioned that it was inappropriate to invoke mandamus “solely
on the basis that events might lead to a filing before an agency
or lower court, which might lead to an appeal to this court.” Cf.
Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 985–86 (D.C. Cir.
1997); Shell Oil Co. v. FERC, 47 F.3d 1186, 1194–95 (D.C. Cir.
1995).
Accordingly, we deny the industry petitions, and with
regard to MARG’s individual challenges, we dismiss NIOSH
and HHS as respondents, decline to exercise ancillary
jurisdiction, and dismiss for lack of jurisdiction.