ELR Citation: ELR 20282
No(s). 00-1010 (D.C. Cir. Nov 17, 2000)

The court denies a union's request to compel the U.S. Department of Labor to promulgate an emergency temporary standard to protect mine workers from exposure to respirable coal mine dust. The court first holds that the union failed to satisfy its burden of showing that an emergency temporary standard is warranted. The department must issue an emergency temporary standard if the miners are exposed to grave danger and an emergency temporary standard is necessary to protect the miners from such danger. It is undisputed that respirable coal mine dust is a serious occupational hazard in the mining industry, but it is far from clear at this juncture what standards should be adopted to address the problem. The court next holds that it is unnecessary to reach the merits of the union's claim that the department unreasonably delayed rulemaking on respirable coal mine dust. An agency's notice of proposed rulemkaing necessarily moots a claim of unreasonable delay based on a matter that the agency proposes to regulate in that rulemaking. Here, six months after the union filed its petition to compel the department to issue an emergency temporary standard, the department issued two notices of proposed rulemaking aimed at restructuring the respirable coal mine dust program for underground coal mines. Although the union disputes the sufficiency of the manner in which the department has addressed its concerns, it would be premature for the court to consider the union's objections to the merits of the proposed rules. In the event that the department fails to promulgate, modify, or revoke the proposed standards within the statutory period, the union may file a petition for review.

Counsel for Petitioner
Judith Rivlin, Associate General Counsel
United Mine Workers of America International Union
4455 Connecticut Ave. NW, Washington DC 20008
(202) 966-8239

Counsel for Respondent
Robin A. Rosenbluth
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave. NW, Rm. N-2700, Washington DC 20210
(202) 219-6666

Before Rogers and Garland, JJ.