ELR Citation: ELR 20894
No(s). 84-1635 (D.C. Cir. Aug 2, 1985)

The court holds that the Mine Safety and Health Administration (MSHA) is not unreasonably delaying its rulemaking to tighten standards protecting miners from exposure to the radioactive decay products of radon gas. The court first holds that it may review the claim of agency delay. Since the agency has agreed to begin rulemaking, the agency's discretion not to engage in rulemaking is not at issue; the only issue is whether MSHA's rulemaking schedule is reasonable. The Federal Mine Safety and Health Amendments Act grants the courts of appeals jurisdiction to review final health or safety rules, and, read in conjunction with the All Writs Act and the Administrative Procedure Act (APA), it grants jurisdiction to review a claim of unreasonable rulemaking delay. Provisions in the Mine Act limiting the means of challenging the validity of a standard and excluding application of the APA to Mine Act orders, notices, or decisions do not bar the present review of alleged delay in rulemaking. Regarding the merits of the claim, the court holds that although the agency postponed the initiation of rulemaking for five years and now proposes to prolong the rulemaking by preparing a preproposal draft for public comment, the present two-year rulemaking schedule is reasonable. Congressional intent, the high stakes involved, and the agency's uncrowded regulatory agenda all argue for speedy rulemaking, but in light of the complexity and the agency's efforts to secure public participation, the court cannot hold circulation of a preproposal draft and the associated delay unreasonable.

Counsel for Petitioners
David C. Vladeck
Public Citizen Litigation Group
2000 P St. NW, Washington DC 20036
(202) 463-7153

Counsel for Respondents
Robert C. Seldon, Ass't U.S. Attorney
3rd St. and Constitution Ave. NW, Washington DC 20001
(202) 633-5107

Counsel for Intervenor
Anthony J. Thompson
Hamel & Park
888 16th St. NW, Washington DC 20006
(202) 835-8000

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