[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Proposed Rules]
[Pages 67681-67692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25678]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, 58, 70, 71, 72, 75 and 90

RIN 1219-AA48


Air Quality, Chemical Substances, and Respiratory Protection 
Standards

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Withdrawal of proposed rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is 
withdrawing the remaining phases of its 1989 ``Air Quality, Chemical 
Substances, and Respiratory Protection'' proposed rule, and is 
providing further explanation of its September 26, 2002, Federal 
Register document regarding withdrawal of the proposed rule. MSHA's 
2002 decision to withdraw the remaining phases of the proposed rule was 
based on adverse case law, a change in Agency priorities, and the 
staleness of the rulemaking record. Although the September 26, 2002, 
document was intended to withdraw the rule as of that date, the U.S. 
Court of Appeals for the District of Columbia Circuit found that the 
document provided inadequate explanation of the Agency's decision to 
terminate the rulemaking. The court ordered MSHA to either proceed with 
the Air Quality rulemaking or give a reasoned account of its decision 
not to do so. This document provides a reasoned account of MSHA's 
decision to terminate the rulemaking and to withdraw the remaining 
phases of the Air Quality rule.

DATES: The proposed rule published on August 29, 1989 (54 FR 35760) is 
withdrawn as of November 19, 2004.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director, 
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson 
Boulevard, Room 2313, Arlington, Virginia 22209-3939, 
[email protected], (202) 693-9440 (telephone), or (202) 693-9441 
(facsimile). This document is available in alternative formats, such as 
large print and electronic format, and can be accessed on MSHA's 
Internet site, http://www.msha.gov, at the ``Statutory and Regulatory 
Information'' link.

SUPPLEMENTARY INFORMATION:

A. Rulemaking Background

    On August 29, 1989, MSHA proposed a rule, 54 FR 35760, that would 
have, among other things, established permissible exposure limits 
(PELs) for substances that the Agency believed might adversely affect 
the health of miners; required control of exposure to such substances; 
prescribed methods and frequency of monitoring to evaluate exposure; 
and revised requirements for respiratory protection programs for metal 
and nonmetal mines and established similar requirements for coal mines. 
54 FR 35760, 35761 (August 29, 1989). Additionally, the proposed rule 
included provisions addressing carcinogens, asbestos construction work, 
dangerous atmospheres, medical surveillance, prohibited areas for food 
and beverages, and abrasive blasting and drill dust control. Of the 
more than 600 chemical substances for which MSHA sought to establish 
PELs, 165 of those substances would have been regulated for the first 
time. Because of the scope and complexity of the Air Quality rule, MSHA 
divided the rulemaking provisions into three groups or ``phases.'' The 
Agency set separate comment periods for each of the three groups and 
announced that it would hold three sets of public hearings, with each 
set addressing one group of the proposed rule's provisions.
    The first group of provisions included abrasive blasting and drill 
dust control; dangerous atmospheres; exposure monitoring; prohibited 
areas for food and beverages; and PELs for nitrogen dioxide, nitric 
oxide, carbon monoxide, and sulfur dioxide. Two public hearings were 
held for this group of provisions, the first on June 4, 1990, in 
Denver, Colorado, and the second on June 7, 1990, in Coraopolis, 
Pennsylvania. The comment period for this group of provisions closed on 
March 2, 1990.

[[Page 67682]]

    The second group of provisions included carcinogens; asbestos 
construction work; means of controlling exposure to hazardous 
substances; respiratory protection; and medical surveillance. Two 
public hearings were held on this group of provisions, the first on 
October 12, 1990, in Washington, DC and the second on October 19, 1990, 
in San Francisco, California. The comment period for the second group 
of provisions closed on June 29, 1990.
    The third and final group of provisions included all permissible 
exposure limits other than nitrogen dioxide, nitric oxide, carbon 
monoxide, and sulfur dioxide. Two public hearings were held on these 
PELs, the first on March 19, 1991, in Denver, Colorado, and the second 
on March 26-27, 1991, in Washington, DC. The comment period for this 
group of provisions closed on December 14, 1990. Following the public 
hearings, the rulemaking record remained open until August 30, 1991, to 
permit interested persons to submit additional statements, data, and 
information on any provision of the proposed rule.
    In 1994, MSHA adopted one provision of the proposed rule as a final 
rule. ``Air Quality: Health Standards for Abrasive Blasting and Drill 
Dust Control,'' 59 FR 8318 (February 18, 1994). For the reasons set 
forth in this document, the amount of additional work performed on the 
remainder of the proposed rule between 1994 and 2002 was somewhat 
limited.
    In September 2002, MSHA decided to withdraw the remainder of its 
Air Quality proposed rule from the Regulatory Agenda. 67 FR 60611 
(September 26, 2002). By way of explanation, the Agency said that its 
decision to withdraw the proposed rule ``was the result of changes in 
Agency priorities and the possible adverse effect * * * of the decision 
in AFL-CIO et al. v. OSHA,'' 965 F.2d 962 (11th Cir. 1992), in which 
the U.S. Court of Appeals for the Eleventh Circuit invalidated an OSHA 
rule that set new PELs for 428 toxic substances. MSHA also noted that 
it had been ``more than 13 years since the proposal was published and 
more than 12 years since the comments were received.'' 67 FR at 60611.
    The United Mine Workers of America (UMWA) petitioned the U.S. Court 
of Appeals for the District of Columbia Circuit for review of the 
Agency's decision to withdraw its proposed Air Quality rule. The Court 
concluded that the Agency's action was arbitrary and capricious because 
it failed to provide an adequate explanation for its decision. Int'l 
Union, UMWA v. MSHA, 358 F.3d 40 (D.C. Cir. 2004). The Court remanded 
the matter to MSHA and ordered that the Agency ``either proceed with 
the Air Quality rulemaking or give a reasoned account of its decision 
not to do so.'' Id. at 45. This notice provides further explanation of 
the Agency's 2002 decision to withdraw the proposed rule. The notice 
also withdraws the remaining phases of the Air Quality proposed rule 
and provides MSHA's continuing rationale for doing so.
    This notice discusses the reasons for withdrawal of the proposed 
rule in relation to two distinct periods of time. Section B of this 
notice, ``Reasons for the 2002 Decision to Withdraw the Proposed 
Rule,'' discusses the reasons underlying MSHA's September 2002 decision 
to withdraw the Air Quality proposed rule. Section C of this notice, 
``Continuing Reasons for the Withdrawal of the Proposed Rule,'' 
discusses the reasons that continue to support MSHA's decision to 
withdraw the proposed rule. The reasons set forth in Section C relate 
to the period of time following publication of the September 2002 
notice.

B. Reasons for the 2002 Decision To Withdraw the Proposed Rule

    MSHA's decision to withdraw the remaining phases of its Air Quality 
rulemaking in September 2002 was premised on three reasons:
     The adverse effect of AFL-CIO et al. v. OSHA, 965 F.2d 962 
(11th Cir. 1992),
     Changes in the Agency's priorities, and
     The staleness of the rulemaking record.
    Though the foregoing reasons represent the specific grounds upon 
which the decision was made, the limits of the Agency's resources were 
an inherent element of those reasons and necessarily contributed to 
MSHA's decision.

1. MSHA's Statutory Responsibility

    The Federal Mine Safety and Health Act of 1977 (Mine Act), 30 
U.S.C. 801 et seq., sets forth MSHA's statutory responsibility when 
promulgating mandatory standards dealing with toxic materials or 
harmful physical agents. Section 101(a)(6)(A) of the Mine Act, 30 
U.S.C. 811(a)(6)(A), states that the Secretary of Labor:

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 even if such miner has 
regular exposure to the hazards dealt with by such standard for the 
period of his working life. Development of mandatory standards under 
this subsection shall be based upon research, demonstrations, 
experiments, and such other information as may be appropriate. In 
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. Whenever practicable, the mandatory health or safety 
standard promulgated shall be expressed in terms of objective 
criteria and of the performance desired.

    Accordingly, the Mine Act imposes a threshold that the Agency must 
satisfy in promulgating mandatory health standards. Specifically, MSHA 
must ensure that it establishes standards based on the best available 
evidence, including a consideration of the latest available scientific 
data; it must ensure that a significant risk of ``material impairment'' 
of health or functional capacity will ensue if it fails to act (i.e., 
the existing exposure limit poses a significant risk of material 
impairment or functional capacity); and it must ensure that the 
standard is both economically and technologically feasible. 30 U.S.C. 
811(a)(6)(A).

2. Effect of the Eleventh Circuit's Decision Vacating OSHA's Air 
Contaminants Standard

    In AFL-CIO, the U.S. Court of Appeals for the Eleventh Circuit 
vacated the Occupational Safety and Health Administration's (OSHA's) 
final omnibus Air Contaminants standard, 54 FR 2332 (January 19, 1989), 
in which OSHA sought to establish PELs for 428 toxic substances. 
Although AFL-CIO was decided under the Occupational Safety and Health 
Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., a statute with rulemaking 
provisions that differ in some ways from those of the Mine Act, the 
major holding of the Eleventh Circuit's decision appears on its face to 
apply to both OSHA and MSHA: that the Agency must make specific 
findings for each substance and each proposed PEL. The similarities 
between the Air Quality and Air Contaminants standards, and the 
Agencies' statutory provisions, each weighed heavily in favor of MSHA 
assuming a regulatory approach that was consistent with the holding of 
AFL-CIO.
    Like OSHA's Air Contaminants standard, MSHA's Air Quality proposed 
rule was intended to be a ``generic rulemaking'' in which the Agency 
would set exposure limits for hundreds of substances in a single 
rulemaking. Unlike the OSHA Air Contaminants standard, however, MSHA's 
Air Quality rule included proposed standards on eight substantive 
components in addition to the hundreds of proposed

[[Page 67683]]

PELs. The eight additional components that the Air Quality proposed 
rule addressed were: (1) Revision of existing standards on means of 
control of harmful airborne substances in mines; (2) control of dust 
generated by abrasive blasting and drilling; (3) exposure monitoring by 
mine operators; (4) hazards posed by dangerous atmospheres, including 
areas underground, silos, vats, tanks, and other confined spaces; (5) 
carcinogens; (6) asbestos construction work at mines; (7) medical 
surveillance of miners exposed to carcinogens; and (8) a respiratory 
protection program.
    Although OSHA also has standards addressing many of the above 
components, it did not attempt to promulgate those standards as part of 
its Air Contaminants rule. 29 CFR 1910.94 (abrasive blasting); 29 CFR 
1910.134 (respiratory protection); 29 CFR 1910.146 (confined space); 29 
CFR 1926.1101 (asbestos construction work); and 29 CFR part 1990 
(carcinogens policy). OSHA specifically noted in the preamble to its 
final Air Contaminants rule that:
    The final regulation is limited to consideration of revising the 
PELs. There is no consideration of the ancillary requirements which are 
typically developed as part of individual substance rulemaking but were 
not included in the original Sec.  1910.1000 standard. OSHA has 
published ANPRs for Exposure Monitoring (53 FR 32591-32595), and 
Medical Surveillance (53 FR 32595-32598), and is developing a proposal 
covering revision to the respirator provisions of the OSHA Standards. 
OSHA has issued a final rule expanding the Hazard Communication 
Standard.
    While medical surveillance, exposure monitoring and other 
industrial hygiene practices are important, OSHA is not in a position 
to develop these requirements while at the same time developing PELs 
for several hundred substances. OSHA has determined that lowering 
exposures through the development of reduced PELs is of higher priority 
because it is more effective in reducing occupational diseases and 
material impairment of health. These ancillary requirements will be 
addressed as priorities dictate. 54 FR at 2335. MSHA has similarly 
recognized a hierarchy of controls in promulgating its rules such that 
miners' exposure to harmful airborne contaminants is controlled 
principally by removal or dilution of the contaminant, with such 
ancillary protections as personal protective equipment, industrial 
hygiene practices and medical transfer used to augment the principal 
means of protection--removal of the contaminant.
    MSHA's Air Quality proposed rule included some 200 (approximately 
50%) more PELs than did OSHA's Air Contaminants standard, as well as 
the eight substantive components listed above, which OSHA's standard 
did not include. Accordingly, the scope and complexity of the Air 
Quality proposal was significantly more comprehensive and ambitious 
than was OSHA's already groundbreaking approach to addressing potential 
chemical hazards that may be found or introduced in the workplace.
    As discussed in more detail in this section, the AFL-CIO holdings 
effectively gave MSHA two choices: either ignore the decision and 
accept the likely risk that a final rule would be vacated, or try to 
comply with AFL-CIO and tie up all of the Agency's resources for years 
to come. Neither of these options was suitable to MSHA, so the Agency 
decided to withdraw the proposed rule, a reasonable course of action in 
light of the case.\1\
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    \1\ MSHA notes that even absent the holdings of AFL-CIO, 
promulgation of a final Air Quality rule would have been extremely 
costly in terms of available resources. At the time that the Agency 
proposed the rule and for some time thereafter, MSHA believed those 
costs to be manageable. In retrospect, MSHA realizes that it did not 
fully appreciate the resources needed to promulgate a rule as 
comprehensive and complex as the Air Quality rule. The demanding 
requirements imposed by the holdings of AFL-CIO, however, 
exponentially increased the demand on its resources.
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    The AFL-CIO court held that ``the PEL for each substance must be 
able to stand independently, i.e., that each PEL must be supported by 
substantial evidence in the record considered as a whole and 
accompanied by adequate explanation.'' 965 F.2d at 972. The court 
continued by stating that ``OSHA may not, by using such multi-substance 
rulemaking, ignore the requirements of the OSH Act.'' Ibid. Though 
generic rulemaking is permissible, the court noted that generic 
rulemakings are required to demonstrate the existence of something 
``common to or characteristic of a whole group or class.'' Id. at 971 
(quoting Webster's Third New International Dictionary 945 (1966)). The 
court was not persuaded that OSHA's Air Contaminants standard 
represented generic rulemaking because the rule did not address 
substances with common characteristics or impose common requirements on 
classes of substances. Instead, the court deemed the standard to be 
nothing more than ``an amalgamation of 428 unrelated substance exposure 
limits.'' Id. at 972.
    MSHA's Air Quality proposed rule was comparable to OSHA's Air 
Contaminants rule in that it did not demonstrate the existence of 
common characteristics between, or impose common requirements on, the 
hundreds of substances listed in the PEL table. Under the AFL-CIO 
holding, MSHA's Air Quality rule could be categorized by a reviewing 
court as nothing more than an amalgamation of 600+ unrelated substance 
exposure limits.
    AFL-CIO also held that the OSH Act does not permit OSHA to regulate 
any risk that it chooses. Id. at 973. Rather, the Agency may only 
regulate those risks that present a ``significant'' risk of material 
health impairment. Ibid. Thus, the court held that for each substance 
OSHA seeks to regulate, the Agency must present individual findings 
that ``a significant risk of material health impairment exists at the 
current levels of exposure to the toxic substance in question,'' id., 
and that the proposed PEL would ``prevent material impairment of 
health.'' Ibid. Finally, the Eleventh Circuit held that ``OSHA has a 
responsibility to quantify or explain, at least to some reasonable 
degree, the risk posed by each toxic substance regulated.'' Id. at 975 
(emphasis in original). Although the preamble to OSHA's Air 
Contaminants rule individually discussed each of the 428 toxic 
substances for which PELs were established, the court ultimately found 
that those discussions, and mere conclusory statements regarding risk 
reduction, fell short of the statutorily required risk assessment that 
the Agency was required to perform. Id. at 975-976.
    The holding of AFL-CIO presented MSHA with challenges it had not 
contemplated at the time the Agency proposed the Air Quality rule. Of 
the more than 600 substances for which MSHA sought to establish PELs, 
it individually discussed only about two dozen. See 54 FR 35760, 35767-
35770 (August 29, 1989). Of the two dozen or so substances that were 
discussed individually, the Agency did not present evidence that it 
believed the substances might pose a significant risk of material 
impairment of health or functional capacity, findings it would be 
required to make in order to finalize the rule. At the time the Air 
Quality rule was proposed, MSHA had not determined that each of the 
substances in the proposed rule was found on mine property, much less 
that those substances were found at levels sufficient to cause 
significant risk to miners. In this regard, the Air Quality preamble 
stated that ``[s]ome commenters objected and favored listing only 
substances found on mining property and which present a risk of a

[[Page 67684]]

material impairment of health or functional capacity. This proposed 
rule includes those substances which the Agency has reason to believe, 
based upon the Agency's knowledge thus far, could pose this type of 
health risk if found on mine property.'' Id. at 35765 (emphases added). 
The preamble further stated that although ``the majority of substances 
in the `TLV[supreg] Booklet' \2\ do not naturally occur in mining, they 
may be brought on mine property in the course of day-to-day operations. 
For this reason, MSHA is proposing to include most of the TLV[supreg] 
list in a table of permissible exposure limits.'' Id. at 35766 
(emphasis added.)
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    \2\ TLV[supreg] is the acronym for Threshold Limit Value. 
Threshold Limit Values are exposure guidelines recommended by the 
American Conference of Governmental Industrial Hygienists 
(ACGIH[supreg]). The ACGIH's Web site, http://www.acgih.org/TLV, 
describes Threshold Limit Values as being ``designed for use by 
industrial hygienists in making decisions regarding safe levels of 
exposure to various chemical substances and physical agents found in 
the workplace.'' MSHA's existing air quality standards incorporate 
by reference the ACGIH's 1972 (coal) and 1973 (metal and nonmetal) 
Threshold Limit Values.
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    In fact, MSHA summarized commenters' general dissatisfaction with 
the sufficiency of the evidence the Agency provided in proposing the 
rule by stating:
    Commenters generally criticized the Agency for limiting its 
discussion of specific substances on the PEL table to less than two 
dozen of the several hundred substances listed. They requested that 
MSHA give a rationale for each substance in the proposed rule, evidence 
that all are present in the mining environment, and how these chemicals 
are used. For those substances for which the Agency proposed to lower 
the PEL, commenters generally wanted MSHA to: Prove that the present 
PEL presents a significant risk to miners; quantify the extent of the 
risk; prove that risk represents a ``material impairment of health;'' 
and prove that any change in the standard is economically and 
technologically capable of being achieved.
    These commenters also requested that MSHA discuss epidemiological 
data establishing that these substances are present in concentrations 
that cause a material impairment of health or functional capacity to 
miners. They also requested MSHA to provide evidence on the feasibility 
of controlling these substances with either engineering or 
administrative controls. 56 FR 8168, 8169 (February 27, 1991).
    Like OSHA, MSHA is not statutorily authorized to regulate any risk 
it chooses; rather, section 101(a)(6)(A) of the Mine Act, 30 U.S.C. 
811(a)(6)(A), authorizes the Agency to regulate those risks which 
present a risk of material impairment of health or functional capacity. 
Because MSHA could not have reasonably promulgated a final rule which 
made a determination that each substance the Agency sought to regulate 
presented a significant risk of material impairment of health or 
functional capacity at the existing PEL, the PELs would not have been 
able to ``stand independently,'' as was required by AFL-CIO. In other 
words, if MSHA had engaged in separate rulemakings for each of the 600+ 
substances, it would have been obligated to, among other things, 
estimate or quantify the risk posed by exposure to the substance at the 
existing PEL and explain why such exposure presented a significant risk 
of material impairment to health or functional capacity. Under the 
logic of AFL-CIO, MSHA is required to make the same findings and 
explanations in its omnibus rulemakings. A persuasive argument could be 
made that like OSHA, MSHA ``is not entitled to take short-cuts with 
statutory requirements simply because it chose to combine multiple 
substances in a single rulemaking.'' 965 F.2d at 975.
    Under AFL-CIO, MSHA could not have finalized the Air Quality rule 
in the form in which it was proposed without an unanticipated and 
enormous expenditure of Agency resources. Providing a quantitative risk 
assessment for each of the more than 600 substances would have been a 
lengthy, complex, and costly process requiring MSHA to conduct a 
significant amount of additional scientific work. In fact, MSHA's 
completion of rulemaking on even one substance would have required a 
significant commitment of Agency resources. The Agency's failure to 
promulgate the Air Quality rule in accordance with AFL-CIO, however, 
would have left MSHA vulnerable to a potentially formidable legal 
challenge to the rule.
    The UMWA suggested in Int'l Union, UMWA that the availability of 
information recommending exposure limits--namely Threshold Limit Values 
(TLVs[supreg]--adopted by the American Conference of Governmental 
Industrial Hygienists (ACGIH[supreg] might enable MSHA to complete the 
Air Quality rulemaking despite the AFL-CIO decision. In fact, the 
availability of information related to ACGIH's TLVs would not 
necessarily have made the task of promulgating the Air Quality standard 
much less complex or arduous. While current TLVs would provide MSHA 
with a basis for assessing potential PELs, the Agency would still have 
been required to make an independent evaluation of whether each TLV 
would be an appropriate PEL. MSHA could not have adopted the ACGIH's 
TLVs wholesale without an independent assessment of the evidence 
supporting a PEL consistent with each TLV. This is particularly true 
because TLVs are established based exclusively on health 
considerations. ACGIH's establishment of any given TLV does not account 
for such considerations as economic or technological feasibility, both 
of which MSHA is statutorily required to consider in establishing its 
exposure standards. Therefore, an independent assessment of each of the 
600-odd substances would have to be made regardless of the TLV 
recommendations made by AGGIH. The AFL-CIO court specifically addressed 
this issue and found that although OSHA could rely on the ACGIH's 
recommendations, the Agency was not relieved of its responsibility to 
make ``detailed findings, with adequate explanations, for all statutory 
criteria.'' 965 F.2d at 984. Ultimately, MSHA bears the burden of 
proving that it has met its statutory obligation, and as such, it must 
be prepared to set forth the analysis used in its determination that a 
given PEL is based on the best available and latest scientific 
evidence, id., and that the chosen PEL is economically and 
technologically feasible.
    In 2002, when MSHA made the decision to withdraw the Air Quality 
proposed rule, it recognized that the unfavorable holding of AFL-CIO 
did not compel the Agency to withdraw the rule. Nonetheless, AFL-CIO 
left MSHA with two equally unappealing alternatives: ignore the 
decision and risk that a final rule would be vacated, or comply with 
the holdings of the decision and encumber the Agency's resources for 
the foreseeable future. MSHA recognized that had it ignored the AFL-CIO 
court decision, a circuit other than the Eleventh Circuit may have been 
disinclined to follow the holding in that case. Nevertheless, MSHA also 
knew that it could have been, and likely would have been, challenged in 
the U.S. Court of Appeals for the Eleventh Circuit, and that litigation 
in that circuit would very likely have proven fatal to the Air Quality 
rule unless MSHA made substance-specific assessments for each of the 
600+ PELs. There are numerous mine operators in the Eleventh Circuit 
and MSHA has had to defend its actions in that circuit on previous 
occasions. See Nat'l Mining Ass'n, Alabama Coal Ass'n v. U.S. 
Department of Labor, 153 F.3d 1264 (11th Cir. 1998). Even if

[[Page 67685]]

MSHA was not challenged in the Eleventh Circuit, the Agency could have 
been challenged in a circuit that would have been persuaded by the 
reasoning in AFL-CIO. Thus, while AFL-CIO did not compel the Agency to 
terminate the Air Quality rulemaking, it compelled MSHA to take into 
account the AFL-CIO holding and to make a decision about the fate of 
the rulemaking accordingly. MSHA's decision to withdraw the Air Quality 
proposed rule simply acknowledged that after the Eleventh Circuit's 
decision, it would be difficult and expensive to finalize and defend 
broad omnibus health rulemakings covering multiple substances. The 
Agency's decision also reflected its belief that the inordinate 
resources that would have been required to craft a judicially 
sustainable final rule would not have been a prudent use of Agency 
resources.
    In Int'l Union, UMWA, the UMWA mentioned that another federal 
agency had successfully promulgated a rule updating a list of toxic 
chemicals in a single rulemaking, implying that MSHA should be 
encouraged despite the holdings of AFL-CIO. In Troy Corporation v. 
Browner, 120 F.3d 277 (D.C. Cir. 1997), the U.S. Court of Appeals for 
the District of Columbia Circuit upheld an Environmental Protection 
Agency (EPA) rule adding 286 chemicals to its Toxic Release Inventory 
(TRI) pursuant to the Emergency Planning and Community Right-To-Know 
Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq. MSHA believes that Troy is 
distinguishable on at least two significant bases, thus making it less 
pertinent to MSHA's Air Quality rulemaking than AFL-CIO. First, and 
most importantly, the rulemaking provisions of the Mine Act more 
closely resemble those of the OSH Act than those of the EPCRA. The 
statutory threshold that EPA must satisfy in order to include a 
chemical on the TRI list is much lower than MSHA's and OSHA's statutory 
threshold for establishing PELs for toxic materials and harmful 
physical agents. The Troy court held that EPCRA does not obligate the 
EPA to demonstrate any ``likelihood of contact between humans and the 
chemical.'' 120 F.3d at 285-286. Conversely, MSHA's and OSHA's 
rulemaking provisions require the agencies to demonstrate, among other 
things, that the agent or contaminant at issue poses a significant risk 
of ``material impairment of health or functional capacity,'' an 
exceedingly more demanding threshold than that of the EPCRA.
    Second, the substance of the Air Quality rule more closely 
resembles OSHA's Air Contaminants rule than it does the EPA rulemaking 
adding chemicals to the TRI list. The requirements imposed on owners of 
facilities covered by section 11023 of EPCRA are more akin to the 
requirements imposed on mine operators and employers by MSHA's and 
OSHA's Hazard Communication standards than the proposed Air Quality 
standards. In that regard, the relevant EPCRA section requires 
dissemination of information only, not compliance with substantive 
exposure limits. The Air Quality proposed rule, unlike the TRI list and 
MSHA's Hazard Communication rule, included provisions requiring use of 
engineering and administrative controls to limit exposure to the 
substance, exposure monitoring, medical surveillance and transfer, and 
the use of personal protective equipment. Promulgation of comprehensive 
health rules, such as the Air Quality rule, requires a degree of 
scientific evidence and feasibility analysis that is not generally 
associated with notification or informational standards. For this 
reason, the TRI list addressed in Troy and MSHA's Air Quality rule are 
not substantively similar enough to make Troy the most appropriate case 
for comparison. Given the foregoing, MSHA believes that the grounds for 
comparing its Air Quality rulemaking to the EPA rulemaking at issue in 
Troy are unsound. MSHA's rulemaking provisions and the content of its 
Air Quality proposed rule more closely resemble those of the OSH Act 
and the Air Contaminants rulemaking, thereby making AFL-CIO a more 
germane case than Troy.

3. Changes in Agency Priorities

    Given the additional burden of following the Eleventh Circuit's 
requirements to finalize the Air Quality rule, MSHA believed that 
promulgating the rule would detrimentally affect its other ongoing 
rulemakings. Consequently, the Agency reassessed its rulemaking 
priorities, and ultimately decided to withdraw the Air Quality proposed 
rule. The Mine Act provides the Secretary of Labor broad discretion to 
set and change rulemaking priorities as she deems appropriate. 
Specifically, section 101(a) of the Mine Act provides the Secretary the 
discretion to ``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). Likewise, the Mine Act provides the Secretary with the 
authority to ``promulgate, modify, or revoke'' a proposed rule. 30 
U.S.C. 811(a)(4)(A). ``In the event the Secretary determines that a 
proposed mandatory health or safety standard should not be 
promulgated,'' she must ``publish h[er] reasons for h[er] 
determination.'' 30 U.S.C. 811(a)(4)(C). Int'l Union, UMWA, 358 F.3d at 
43.
    MSHA sets and changes its rulemaking priorities based, in part, on 
the resources available to it. Based on the reasoning of the 1992 AFL-
CIO decision, the Agency ultimately concluded that promulgation of even 
a significant portion of the Air Quality standard would have consumed 
all of the Agency's rulemaking resources. Prior to the demanding 
requirements imposed by the AFL-CIO decision, MSHA believed that the 
resources necessary to promulgate the Air Quality rule were manageable. 
However, the resources required to complete the standard in a manner 
that would withstand judicial scrutiny following AFL-CIO were 
unanticipated at the time that the rule was proposed.
    Even a phased approach to promulgating the more than 600 PELs, and 
the seven substantive components of the rule that remained following 
promulgation of the abrasive blasting and drill dust control rule, 
would have exhausted MSHA's rulemaking resources. This would have 
required MSHA to ignore or neglect many of its other regulatory 
responsibilities for the foreseeable future. In retrospect, MSHA 
realized that even a phased approach to promulgating the Air Quality 
rule would have overwhelmed the Agency, particularly in light of its 
other rulemaking objectives. MSHA initially grouped the rulemaking 
provisions simply to facilitate more orderly and organized public 
comment, and to more easily focus the discussions at the public 
hearings. The fact that MSHA divided the rulemaking provisions into 
three distinct groups should not have suggested that the Agency could 
more easily promulgate judicially sustainable components of the rule 
than it could promulgate a judicially sustainable rule at once in its 
entirety. Whether MSHA promulgated the rule as divided, or in its 
entirety, AFL-CIO demanded that MSHA make the same scientifically 
difficult and exacting findings.
    For several years following AFL-CIO and the 1994 promulgation of 
the abrasive blasting and drill dust control rule, MSHA continued to 
work on various provisions of the Air Quality rule. MSHA anticipated 
publishing new proposed rules for several of the provisions contained 
in the Air Quality rule, such as those addressing carcinogens and 
respiratory protection. The Agency performed work

[[Page 67686]]

accordingly. Ultimately, however, because of the changes in MSHA's 
priorities, the Agency was not able to develop drafts for either 
component. By 2002, the Agency realized the enormity and breadth of the 
rule, and the resources that it would have had to devote to finalize 
any one provision. For example, the abrasive blasting and drill dust 
control provision of the rule was only one of eight contained in the 
first group of provisions, and it took nearly five years to complete. 
As compared to the other provisions, promulgation of the abrasive 
blasting and drill dust control standard was less complicated than many 
of the other provisions would have been. Because the Agency determined 
that even a phased approach to promulgating the remainder of the Air 
Quality rule was infeasible, it decided to withdraw the rule and pursue 
other, more narrowly focused and achievable priorities.
    The Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive 
Order 12866, 58 FR 51735 (September 30, 1993), require semiannual 
publication in the Federal Register of an agenda of regulations. The 
Regulatory Flexibility Act requires the Department of Labor to publish 
a regulatory agenda in October and April of each year, listing all of 
the regulations that the Department expects to propose or promulgate 
that are likely to have a ``significant economic impact on a 
substantial number of small entities.'' 5 U.S.C. 602. In addition to a 
summary of the nature of such regulations, the Regulatory Flexibility 
Act also requires the Department to include the objectives and the 
legal basis for the issuance of the rule, and an approximate schedule 
for completing action on the rule. Id. Executive Order 12866 
supplements the above obligations and, in substance, requires agencies 
to publish an agenda listing all the regulations it expects to have 
under active consideration for promulgation, proposal, or review during 
the coming 1-year period. Executive Order 12866 also requires each 
agency, as part of the regulatory agenda, to prepare a regulatory plan 
of the most important ``significant'' regulatory actions that the 
agency reasonably expects to issue in proposed or final form in that 
fiscal year or thereafter. In essence, the regulatory plan sets forth 
an agency's highest priority regulatory actions. The Air Quality rule 
has not been included on MSHA's regulatory plan since 1994 and was not 
a priority in recent years.
    The regulatory agendas of previous Administrations were seldom 
limited to only those agenda items that the Agency could realistically 
complete within a reasonable time. These voluminous agendas promoted 
the notion that MSHA could advance scores of complicated rulemakings 
concurrently. This, however, was never the case and is not the case 
now. For example, MSHA health standards were, and still are, developed 
by ``committees'' of employees consisting of scientists, economists, 
industrial hygienists, technical support staff, enforcement/field 
personnel with expertise in the given area, regulatory specialist, and 
lawyers. Safety standards were (and still are) developed similarly, 
requiring many of the same people who worked on health standards. Thus, 
the number of MSHA employees who were, and are, available to work on a 
rulemaking project at any given time is limited. Because there were 
limited numbers of these personnel, an Air Quality rulemaking could not 
have been developed without transferring personnel from other 
rulemakings that the Secretary had determined were priorities. At the 
very least, economists, regulatory specialists, and lawyers would have 
been required to transfer from other projects, and some field personnel 
would have been required to put aside their enforcement duties while 
assisting with rulemaking. Despite the fact that Agency resources were 
directed to other, higher priority rulemaking projects, previous 
Administrations continued to list the Air Quality rule on the 
Department's regulatory agenda as an ongoing rulemaking.
    As stated above, the extensive regulatory agendas of the past were 
not only unrealistic, but fueled misconceptions about the ability of 
the Department's agencies to simultaneously develop or further vast 
numbers of concurrent rulemakings. Recognizing that this established 
practice was outdated and that it undermined the basic function of the 
Agenda, the Secretary introduced a new approach to the regulatory 
agenda, limiting it to ``only those rules for which [agencies] could 
complete the next step in the regulatory process within a 12-month 
period.'' BNA Daily Labor Report April 22, 2002 (quoting Deputy 
Secretary of Labor Cameron Findlay). Consequently, a number of 
regulations were removed from the Department's Agenda. In the fall of 
2000, for example, the Department's regulatory agenda contained some 
145 rulemaking projects. By comparison, the fall 2003 Agenda contained 
79 rules, and the spring 2004 Agenda contained 81 rulemakings. The 
Secretary's review and reprioritization of each agency's Agenda items 
was not an occurrence unique to the Department; rather, it was 
consistent with a federal agency-wide initiative intended to maintain 
sound regulatory practice. Memorandum from Andrew H. Card, Jr., 
Assistant to the President and Chief of Staff, to Heads and Acting 
Heads of Executive Departments and Agencies, January 20, 2001 (66 FR 
7702 (January 24, 2001)). The concurring opinion in Int'l Union v. 
Chao, 361 F.3d 249 (3d Cir. 2004), candidly addressed this phenomenon 
by noting that ``there is nothing obscure, and nothing suspect about 
regulatory policy changes coincident with changes in administration.'' 
Id. at 256. As the concurring opinion observed, each administration 
embraces its own priority-setting process and regulatory philosophy 
such that items considered priority by one administration may not be so 
by another administration. Id. Though MSHA has only withdrawn one other 
proposed rule from its regulatory agenda, Requirements for Approval of 
Flame-Resistant Conveyor Belts, 67 FR 46431 (July 15, 2002), the Agency 
routinely removes pre-proposal rulemakings from the Agenda. See, e.g., 
Bloodborne Pathogens, Department of Labor Unified Agenda, 60 FR 23567 
(May 8, 1995); Roof Bolting Machines, Department of Labor Unified 
Agenda, 65 FR 23056 (April 24, 2000).
    In the 13 years between proposal of the Air Quality rule in August 
1989 and the September 2002 withdrawal notice, MSHA promulgated 
approximately 50 final rules. The rules were of varying complexity. 
Though the majority of these rules were safety standards, several of 
the standards MSHA promulgated during that period either directly or 
indirectly addressed some of the health hazards which the Air Quality 
rule sought to prevent. In any event, the rules listed below consumed 
much of the Agency's rulemaking resources and constituted the Agency's 
highest rulemaking priorities as determined by the Secretary for the 
period in question.
    In 1994, MSHA promulgated the abrasive blasting and drill dust 
control provisions of the proposed Air Quality rule. 59 FR 8318 
(February 18, 1994). These standards remain effective in spite of the 
withdrawal of the remaining phases of the proposed Air Quality rule. 
The abrasive blasting and drill dust control standards are applicable 
to all metal, nonmetal, and coal mines. 30 CFR 58.610, 58.620, 72.610, 
72.620, 72.630.
    In 1996, MSHA issued final ``Safety Standards for Underground Coal 
Mine Ventilation.'' 48 FR 9764 (March 11, 1996). As noted in the 
preamble to the ventilation standard, ``the primary function of a mine 
ventilation system is

[[Page 67687]]

twofold, to remove hazardous gases such as methane, and to provide 
miners with an [sic] respirable environment in areas where they are 
required to work or travel.'' Id. at 9775. Moreover, the preamble to 
the ventilation final rule states in regard to air quantity, ``[i]t is 
essential for miners' health and safety that each working face be 
ventilated by sufficient quantity of air to dilute, render harmless, 
and carry away flammable and harmful dusts and gases produced during 
mining.'' Id. at 9780. Maintaining adequate ventilation in underground 
coal mines helps to ensure that miners are not exposed to accumulations 
of hazardous gases and dusts. MSHA's ventilation standard established a 
mandatory oxygen content of 19.5% by volume in bleeder entries, and in 
areas where persons work or travel. 30 CFR 75.321. Sections 58/72.300 
of the Air Quality proposal, entitled ``Dangerous Atmospheres,'' 
proposed an equivalent mandatory oxygen content by volume for all work 
areas. 54 FR at 35817, 35840 (August 29, 1989). During the period from 
August 1989 to September 2002, MSHA also promulgated final standards 
for ``Diesel Powered Equipment.'' 61 FR 55412 (October 25, 1996). The 
diesel equipment rule requires monitoring and control of gaseous diesel 
emissions--specifically, carbon monoxide (CO) and nitrogen dioxide 
(NO2)--so that miners are protected from exposure to harmful 
levels of gaseous contaminants. 30 CFR 70.1900. In addition, the diesel 
equipment rule limits miners' exposure to harmful diesel exhaust 
contaminants by requiring Agency approval of most diesel engines (30 
CFR part 7); minimum ventilating air quantities in areas where diesel 
equipment is operated (30 CFR 75.325); the use of low-sulfur fuel (30 
CFR 75.1901); and the use of clean-burning engines (30 CFR part 7).
    The Air Quality rule proposed lowering the PELs for many of the 
gases found in diesel exhaust, including CO and NO2. Because 
the proposed Air Quality rule was to lower these PELs, the diesel 
equipment rule did not do so. Despite the fact that the CO and 
NO2 PELs were not reduced, the diesel equipment rule 
provides coal miners with a degree of protection from diesel exhaust 
gases by reducing emissions of those gases, and thereby coal miners' 
exposure to them. It should also be noted that following publication of 
the diesel equipment final rule in 1996, MSHA surveyed 23 of 26 mines 
using diesel equipment in underground coal mines, collecting over 500 
samples. MSHA determined that coal miners were not exposed to levels of 
CO and NO2 that would have exceeded the standards proposed 
by the Air Quality rule.
    Nonetheless, in March 1997, the UMWA petitioned the U.S. Court of 
Appeals for the District of Columbia Circuit for a writ of mandamus 
compelling MSHA to issue standards governing emissions in diesel 
exhaust. In re United Mine Workers of America Int'l Union, 190 F.3d 545 
(D.C. Cir. 1999). Specifically, the UMWA sought regulation of two 
components of diesel exhaust: gases and particulate matter. Following 
negotiations between MSHA and the UMWA, the parties were able to 
dispose of the particulate matter portion of the petition, as discussed 
in further detail in the paragraph below, leaving before the court only 
the portion of the petition dealing with regulation of exhaust gases. 
In this regard, the UMWA wanted final standards lowering the PELs for 
CO and NO2. With the prospect of court-ordered rulemaking 
impending, MSHA and the UMWA were able to settle the matter so as to 
avoid hindrance of Agency action on diesel particulate matter and 
respirable coal mine dust, both of which the UMWA asserted were of 
higher priority than diesel exhaust gases. Id. at 553. Consequently, 
the parties ultimately agreed to dismiss the case and to address the 
UMWA's concerns about gaseous emissions by establishing a diesel 
exhaust monitoring protocol. These procedures were incorporated into 
the Agency's directives system and are carried out by coal mine health 
inspectors during inspections. Coal Mine Health Inspection Procedures 
Handbook, Chapter 5 ``Diesel Exhaust Gas Monitoring,'' PH89-V-1(14) 
(December 2000).
    As mentioned above, the UMWA also sought regulation of diesel 
particulate matter through its mandamus petition. During the pendency 
of the suit, MSHA published a proposed rule for the regulation of 
diesel particulate matter, 63 FR 17492 (April 9, 1998), and the court 
dismissed this portion of the UMWA's petition as moot. Consequently, 
the coal and metal/nonmetal diesel particulate matter rules became 
priority rulemakings in the years between the Air Quality proposed rule 
and the September 2002 withdrawal notice.
    The final coal diesel particulate matter rule, 66 FR 5526 (January 
19, 2001), requires mine operators to restrict diesel particulate 
matter emissions from certain pieces of equipment to prescribed levels 
(30 CFR 72.500 to 72.502), and requires underground coal mine operators 
to train miners about the hazards of diesel particulate matter exposure 
(30 CFR 72.510). Most of the provisions of the final coal diesel 
particulate matter rule became effective in March 2001. Three 
provisions, however, were subject to later effective dates, two of 
which have already passed. The final provision will become effective in 
January 2005.
    Like the coal diesel particulate matter rule, the final metal/
nonmetal diesel particulate matter rule was published on January 19, 
2001. 66 FR 5706. The final rule established new health standards for 
underground metal and nonmetal miners by requiring use of approved 
equipment and low sulfur fuel, and by setting interim and final 
concentration limits for diesel particulate matter in the underground 
mining environment. Several parties, including mine operators and 
industry associations, filed petitions for review of the final rule, 
and the United Steelworkers of America intervened. The petitions were 
consolidated and are pending in the U.S. Court of Appeals for the 
District of Columbia Circuit. AngloGold (Jerritt Canyon) Corp. et al. 
v. U.S. Department of Labor, Nos. 01-1046, 01-1124, 01-1146 (D.C. Cir. 
filed Jan. 29, 2001). Pursuant to a first partial settlement agreement 
reached in response to legal challenges to the 2001 metal/nonmetal 
diesel particulate matter rule, MSHA amended portions of the final rule 
on February 27, 2002 (67 FR 9180). The revisions addressed the evidence 
and tagging provisions of the Maintenance standard, as well as the 
definition of ``introduced'' in the Engine standard. On August 14, 2003 
(68 FR 48668), pursuant to a second partial settlement agreement, MSHA 
initiated additional rulemaking to further amend the final rule. These 
revisions would revise the interim concentration limit; designate 
elemental carbon as the surrogate for measuring diesel particulate 
matter for the interim limit; apply MSHA's longstanding hierarchy of 
controls used for other exposure-based health standards, including 
engineering and administrative controls supplemented by respiratory 
protection, but prohibiting rotation of miners; and revise the 
requirements for the diesel particulate matter control plan. The legal 
challenge has been stayed pending completion of additional rulemaking 
actions.
    MSHA's final ``Occupational Exposure to Noise'' rule, 64 FR 49548 
(September 13, 1999) was another rulemaking that MSHA determined was a 
priority and to which the Agency committed considerable rulemaking 
resources. Once promulgated, the Noise rule replaced standards that 
provided

[[Page 67688]]

inadequate protection of miners' hearing and were more than 20 years 
old. MSHA estimated that under its previous noise rule, 13.4% of the 
mining population in the United States would have developed a material 
hearing impairment during their working lifetime. MSHA concluded that 
approximately 13,000 coal miners and 24,000 metal and nonmetal miners 
would have experienced noise-induced hearing loss under the prior 
standard, and that those miners would substantially benefit from the 
final rule's effect of improving miners' health and lessening the 
personal and social hardships resulting from noise-induced hearing 
loss. As will be explained in further detail in this notice, MSHA 
continues to commit resources to the implementation of this rule.
    On March 11, 2002, MSHA published safety standards for ``Electric 
Motor-Driven Mine Equipment and Accessories and High-Voltage Longwall 
Equipment Standards for Underground Coal Mines.'' 67 FR 10972. The 
final high-voltage longwall rule allows mine operators to use high-
voltage longwall systems without having to obtain a mine-specific 
petition for modification from MSHA. MSHA considered this rule a 
priority because the Agency concluded that high-voltage longwalls could 
be used safely, provided that certain conditions were met. The high-
voltage longwall rule accounted for new and improved longwall 
technology, and established increased protection from electrical 
hazards, while reducing the paperwork requirements associated with 
petitions for modification.
    During the period in question, MSHA also devoted considerable 
resources to its ``Hazard Communication'' (HazCom) rule, 67 FR 42314 
(June 21, 2002). Similar to the Toxic Release Inventory list that was 
at issue in Troy Corporation v. Browner, 120 F.3d 277 (D.C. Cir. 1997), 
MSHA's HazCom rule is an information dissemination rule that does not 
contain provisions that require use of engineering and administrative 
controls to limit exposure to chemicals, exposure monitoring, medical 
surveillance and transfer, or the use of personal protective equipment. 
However, the HazCom rule requires mine operators to evaluate the 
hazards of chemicals they produce or use and provide information to 
miners concerning chemical hazards; label containers of hazardous 
chemicals; provide access to material safety data sheets; and train 
miners about hazardous chemicals to which they might be exposed. 
Chemicals for which MSHA proposed PELs under the Air Quality proposed 
rule are subject to the HazCom requirements.
    On December 12, 2002, pursuant to its authority derived from Sec.  
101(b)(1) of the Mine Act, 30 U.S.C. 811(b)(1), MSHA issued an 
emergency temporary standard (ETS) addressing underground coal mine 
emergency evacuations, 67 FR 76658. Section 101(b)(1) of the Mine Act 
authorizes the Secretary to issue emergency temporary health or safety 
standards without regard to the mandates of the Administrative 
Procedure Act, 5 U.S.C. 553, when she determines that ``miners are 
exposed to grave danger from exposure to substances or agents 
determined to be toxic or physically harmful, or to other hazards, and 
* * * that such emergency standard is necessary to protect miners from 
such danger.'' 30 U.S.C. 811(b)(1). Emergency temporary standards 
become effective immediately upon publication in the Federal Register, 
30 U.S.C. 811(b)(1), and must be superseded by a mandatory health or 
safety standard no later than nine months after publication of the 
emergency standard. 30 U.S.C. 811(b)(3). The issuance of an emergency 
standard is an extraordinary measure provided for by the Mine Act, but 
one which MSHA employs when it determines that such a standard is 
necessary to prevent grave dangers from ``manifest[ing] themselves in 
serious or fatal injuries or illnesses.'' S. Rept. 181, 95th Cong., 1st 
Sess. 23 (1977).
    Following several fatal and non-fatal coal mine emergencies, MSHA 
determined that miners were exposed to grave danger when they remained 
underground or re-entered affected mine areas during mine emergencies 
presenting an imminent danger due to fire, explosion, or gas or water 
inundation. MSHA concluded that it was imperative to immediately 
address proper training and emergency evacuation procedures by way of 
an ETS. As required by the Mine Act, MSHA had to replace the ETS with 
final safety standards within nine months of the ETS's publication. 
Hence, MSHA published its final ``Emergency Evacuations'' rule on 
September 9, 2003 (68 FR 53037). As with the rules mentioned in the 
preceding paragraphs, MSHA deemed these rulemakings to be priorities 
and devoted rulemaking resources accordingly.
    The most recently published final rule which represented an MSHA 
rulemaking priority during the years in question is the ``belt air'' 
rule. The belt air rule was originally proposed as part of MSHA's 
rulemaking on ventilation of underground coal mines, but ultimately 
developed as an independent rulemaking following the Secretary's 
decision to further review the safety factors associated with the use 
of belt air to ventilate working places.
    On April 2, 2004, MSHA published final safety standards, 
``Underground Coal Mine Ventilation--Safety Standards for the Use of a 
Belt Entry as an Intake Air Course to Ventilate Working Sections and 
Areas Where Mechanized Mining Equipment is Being Installed or Removed'' 
(``belt air'' rule) (69 FR 17480). Prior to the effective date of the 
belt air rule, mine operators were required to obtain a petition for 
modification (30 CFR part 44) of various safety standards before they 
were allowed to use intake air passing through the belt air course to 
ventilate designated locations where miners work. In effect, the belt 
air rule incorporates the bulk of the safety requirements found in the 
most recently granted petitions for modification so that mine operators 
will no longer need to seek a mine-specific petition for modification 
before using belt air in sections of their mine with three or more 
entries. By retaining these safety requirements in the rule, miners' 
safety will be preserved.
    Though the above standards do not address all of the hazards that 
the Air Quality rule was intended to address, MSHA has promulgated 
several rules in the recent past that directly or indirectly assist in 
reducing miners' exposure to airborne contaminants. Such rules include 
those addressing diesel particulate matter, hazard communication, and 
diesel equipment. MSHA has also addressed diesel exhaust gases, which 
was proposed as part of the Air Quality rulemaking, through detailed 
procedures in its Inspection Procedures Handbook. The measure of 
protection provided to miners from these rules was not available at the 
time that the Air Quality rule was proposed. In addition, these 
standards focused on discrete health and safety hazards and reflected 
an incremental approach to regulating mine safety and health that 
appears preferable in light of AFL-CIO. After the Eleventh Circuit's 
decision, MSHA made a reasonable and reasoned decision to direct its 
resources to rulemakings that could be, and were, successfully 
completed. The decision to reprioritize the Air Quality rule was 
entirely appropriate and reflects the Secretary's authority to reassess 
and reorder priorities as necessary and as appropriate.

4. Staleness of Rulemaking Record

    In addition to changes in MSHA's rulemaking priorities, the 2002 
decision to withdraw the Air Quality proposed

[[Page 67689]]

rule was also premised on the staleness of the rulemaking record. As 
the D.C. Circuit observed, the staleness of the record is not a 
distinct reason for withdrawing the Air Quality proposed rule. Int'l 
Union, UMWA v. U.S. Department of Labor, 358 F.3d 40, 44 (February 20, 
2004). However, staleness of the record is a critical concern in 
determining the level of resources MSHA must be prepared to commit to 
the project to make it a priority, to the certain exclusion of all 
other rulemaking priorities. At the time of publication of the 
September 2002 withdrawal notice, it had been more than 13 years since 
the rule's proposal, and some 12 years since comments had been 
received. In accordance with the mandates of the Mine Act, however, 
MSHA is to consider the latest available scientific data when 
promulgating mandatory standards dealing with toxic materials or 
harmful physical agents. Since the Air Quality rule was proposed in 
1989, significant new scientific information relating to many of the 
proposed provisions had developed. Thus, MSHA would have had to 
essentially start the rulemaking process from the beginning, and 
evaluate the significance of the risk of material impairment of health, 
and all of the feasibility issues, on the latest available information.

C. Continuing Reasons for the Withdrawal of the Proposed Rule

1. Changes in Agency Priorities

    As discussed previously, MSHA's rulemaking priorities in the years 
following the promulgation of the abrasive blasting and drill dust 
control standards made it impossible for the Agency to complete the Air 
Quality rulemaking. Moreover, since publication of the September 2002 
Air Quality withdrawal notice, MSHA's rulemaking priorities have not 
permitted it to re-propose the rule. The Agency expects that its 
rulemaking resources will be consumed by other priority rulemakings 
such that it will not be able to promulgate the Air Quality rule for 
the foreseeable future. The Department of Labor's 2003-2004 regulatory 
plan, 68 FR 72520 (December 22, 2003), identifies three high priority 
initiatives for MSHA, noting that items listed in the regulatory plan 
are those ``issues most clearly needing regulatory attention.'' Ibid. 
For MSHA, the Secretary has identified asbestos, metal/nonmetal diesel 
particulate matter, and the two coal mine dust rules as priority 
rulemakings. Ibid.
    On March 29, 2002, MSHA published an advanced notice of proposed 
rulemaking declaring its intent to initiate rulemaking on ``Measuring 
and Controlling Asbestos Exposure.'' 67 FR 15134. The Agency also held 
six public meetings between April 2002 and June 2002 to allow for early 
participation in the rulemaking process by interested parties. The 
importance of such a rulemaking is highlighted in the Department of 
Labor's Office of Inspector General's (OIG) recommendations to MSHA to 
reduce the risk of incidents similar to those that took place in Libby, 
Montana. ``Evaluation of MSHA's Handling of Inspections at the W.R. 
Grace & Company Mine in Libby, Montana.'' USDOL Office of the Inspector 
General, Office of Analysis, Complaints and Evaluations, Report No. 2E-
06-620-0002 (March 22, 2001). MSHA's Air Quality proposed rule 
recognized the importance of controlling asbestos exposure, and 
proposed a PEL consistent with then-current levels promulgated by OSHA 
in its Air Contaminants standard. In 1994, OSHA promulgated a revised 
substance-specific asbestos standard that lowered the PEL to an eight-
hour time-weighted average limit of 0.1 fiber per cubic centimeter (f/
cc) and lowered the short-term exposure limit to 1.0 f/cc as averaged 
over a sampling period of 30 minutes. 59 FR 40964 (August 10, 1994). In 
the wake of the illnesses and fatalities in Libby, Montana, MSHA's 
practice has been to encourage mine operators to comply with the 
current OSHA PEL, as MSHA's metal/nonmetal and coal asbestos exposure 
standards are some 20-fold higher than OSHA's. MSHA Program Information 
Bulletin No. P-0003, ``Potential Exposure to Airborne Asbestos on 
Mining Properties'' (March 2, 2000). For all of the above reasons, MSHA 
feels strongly that promulgating an asbestos standard must remain one 
of the Agency's top rulemaking priorities.
    As discussed elsewhere in this document in further detail, MSHA is 
in the process of finalizing the metal/ nonmetal diesel particulate 
matter rule pursuant to the litigation in AngloGold (Jerritt Canyon) 
Corp. et al., supra, and is devoting significant resources to this 
Agency priority. As MSHA is currently doing with the coal diesel 
particulate matter rule, MSHA anticipates providing training to both 
its inspectorate and stakeholders, providing compliance assistance, and 
engaging in other efforts following the promulgation of revisions to 
the final rule in order to ensure its smooth implementation. MSHA's 
implementation initiatives will require a considerable commitment of 
Agency resources and personnel.
    Additional rulemaking priorities which will consume significant 
agency resources are the respirable coal mine dust rules. MSHA's 
proposed rule for the ``Determination of Concentration of Respirable 
Coal Mine Dust'' (Single Sample) would determine that the average 
concentration of respirable dust to which each miner in the active 
workings of a coal mine is exposed can be accurately measured over a 
single shift. 65 FR 42068 (July 7, 2000). The related ``Verification of 
Underground Coal Mine Operators'' Dust Control Plans and Compliance 
Sampling for Respirable Dust'' (Plan Verification) would require mine 
operators to verify and periodically monitor, through sampling, the 
effectiveness of the dust control parameters for each mechanized mining 
unit (MMU) specified in the mine ventilation plan. 65 FR 42122 (July 7, 
2000). The Plan Verification proposed rule would significantly improve 
miners' health protection by ensuring that ventilation plans were 
verifiable and implemented, thereby limiting the exposure of individual 
miners to respirable coal mine dust. In combination, these rules would 
comprise MSHA's revised program to meet the Mine Act's Sec.  202(b)(2) 
requirement that miners' exposure to respirable coal mine dust be 
maintained at or below the applicable standard on each shift. 30 U.S.C. 
842(b)(2).
    Because of the significant public reaction and comment to these 
proposals, and while waiting for the availability of a Personal Dust 
Monitor, MSHA has indefinitely extended the comment period for these 
rules. Plan Verification, 68 FR 39881 (July 3, 2003); Single Sample, 68 
FR 47886 (August 12, 2003). MSHA is awaiting the National Institute for 
Occupational Safety and Health's (NIOSH's) development and evaluation 
of a Personal Dust Monitor, which MSHA believes could be effective in 
helping to provide a real-time read-out of dust exposure, thus helping 
to prevent the development of black lung disease in miners. In-mine 
testing and evaluation of the devices has begun and will most likely 
continue into 2005.
    Although not listed in the Department's Regulatory Plan, the 
Secretary has identified several other rulemakings for development that 
``advance the Department's goals'' and are consistent with each 
agency's ``available resources.'' Department of Labor Unified Agenda, 
68 FR 73196 (December 22, 2003). For MSHA, these rules, enumerated in 
the Department's most recent Agenda, include rulemakings on high 
voltage continuous mining machines, id. at 73213, shaft and slope 
construction worker training,

[[Page 67690]]

ibid., and electrical product approval, id. at 73214.
    On July 16, 2004, 69 FR 42812 (July 16, 2004) MSHA published a 
proposed rule, ``High-Voltage Continuous Mining Machines,'' that would 
establish design requirements for approval of high-voltage continuous 
mining machines operating in face areas of underground mines. The 
proposed rule would also establish new mandatory electrical safety 
standards for the installation, use, and maintenance of high-voltage 
continuous mining machines used in underground coal mines. These 
provisions would enable mines to utilize high-voltage continuous mining 
machines with enhanced safety protection from fire, explosion, and 
shock hazards. Existing 30 CFR 75.1002, Installation of electric 
equipment and conductors; permissibility, does not permit the use of 
high-voltage continuous mining machines in certain areas of the mine. 
Currently, mine operators must petition MSHA for a modification of the 
standard, pursuant to section 101(c) of the Mine Act, 30 U.S.C. 811(c), 
prior to using high-voltage continuous mining machines. From January 
1997 to October 2003, MSHA granted 38 petitions for the use of high-
voltage continuous mining machines. Others are currently being 
processed. MSHA is confident that promulgation of this rule will 
improve miners' safety while eliminating the need to proceed through 
the often burdensome administrative process associated with granting a 
petition to permit the use of high-voltage continuous mining machines. 
MSHA is currently holding public hearings on this proposed rule and, as 
with the other rulemakings discussed above, MSHA anticipates a 
considerable amount of resources will be committed to promulgating the 
high-voltage continuous mining machine standards.
    On July 16, 2004, 69 FR 42842, following a record of fatalities 
attributable to the lack of training received by shaft and slope 
construction workers, MSHA published a proposed rule entitled 
``Training Standard for Shaft and Slope Construction Workers at 
Underground Mines'' that would remove existing language which exempts 
shaft and slope construction workers from the requirement to receive 
Part 48 training. Under the proposal, shaft and slope construction 
workers would be treated like extraction and production miners in that 
they would be required to receive Part 48 training. This rule will help 
eliminate fatalities such as the October 4, 1991, fatality at the Gary 
No. 50 Mine in Pineville, West Virginia; the May 17, 1996, fatality at 
the Wabash Mine in Keensburg, Illinois; and the January 22, 2003, 
fatalities at the McElroy Mine in Marshall County, West Virginia.
    Finally, MSHA has determined that updating its regulations on 
electrical product approval is a priority. Part 18 of 30 CFR, entitled 
``Electric Motor-Driven Mine Equipment and Accessories,'' sets forth 
the requirements to obtain MSHA approval of electrically operated 
machines and accessories intended for use in underground mines, as well 
as other related matters, such as approval procedures, certification of 
components, and acceptance of flame-resistant hoses and conveyor belts. 
Aside from minor modifications, Part 18 has remained unchanged since 
its promulgation in 1968 under the Federal Coal Mine Safety Act of 
1952. MSHA's update of these outdated regulations will improve the 
efficiency of the approval process, recognize new technology, and add 
quality assurance provisions.
    MSHA expects that the above rulemakings will consume the majority 
of its rulemaking resources for the foreseeable future. In addition to 
the resources that will be required to promulgate the foregoing 
priority rulemakings, however, MSHA is expending resources to 
facilitate implementation of its new final rules. For example, MSHA's 
implementation of the Occupational Exposure to Noise rule is consuming 
a fair amount of the Agency's resources, including many of the same 
personnel who would be required to assist in completion of an Air 
Quality standard. In an effort to improve understanding of and 
compliance with the Noise rule, MSHA has conducted numerous stakeholder 
meetings, developed new compliance assistance documents, updated 
existing compliance assistance documents, and conducted training of 
some of its inspectorate. MSHA is in the process of providing 
stakeholder training, additional training to its inspectorate, updating 
its procedural guides, and evaluating new noise technologies. MSHA will 
continue to allocate resources to implement the Noise rule until it is 
confident that mine operators have received sufficient compliance 
assistance, miners understand their rights, and MSHA inspectors have 
received the necessary training to properly enforce the standard.
    With the January 19, 2001, promulgation of the coal diesel 
particulate matter rule, MSHA is taking efforts similar to those 
described in the preceding paragraph to ensure that its stakeholders 
understand the coal diesel particulate matter rule, and MSHA 
inspectorate are trained to properly enforce the rule. Like the Noise 
implementation efforts, MSHA anticipates that implementation of the 
coal diesel particulate matter rule will require a considerable 
commitment of Agency resources and personnel for the foreseeable 
future.
    It should also be noted that MSHA is publishing a Request for 
Information on respirable crystalline silica to determine an 
appropriate course of action in response to respirable crystalline 
silica exposures. A new respirable crystalline silica standard was also 
proposed as part of the Air Quality rule. Thus, while a comprehensive 
Air Quality rulemaking will no longer be pursued by MSHA, significant 
elements of the proposed rule continue to be addressed in incremental, 
more manageable portions by individual rulemakings. MSHA will continue 
to review information related to individual substances to determine 
whether there is evidence of significant risk. If so, MSHA will 
evaluate whether to engage in a substance-specific rulemaking.

2. Impact of Resuming the Air Quality Rulemaking

    The impact of resuming the Air Quality rulemaking would be 
detrimental to MSHA's currently designated priority rulemakings. The 
resources that would be required to resume the Air Quality rulemaking 
would be enormous and would come at the expense of the rulemakings 
cited in the preceding pages. MSHA's toxic substance and harmful 
physical agent rulemakings have historically been resource-intensive 
and protracted, even when not laden with the legal uncertainties that 
encumber the Air Quality rulemaking. Because MSHA is required to 
present evidence that the existing PEL for each substance or 
contaminant exposes miners to a significant risk of material impairment 
of health or functional capacity, developing a judicially sustainable 
final rule would be a very lengthy and complex endeavor. The scientists 
that would be required to gather, review and analyze the immense amount 
of scientific data would have to be reassigned from other health 
rulemakings. The Agency has also lost a considerable degree of 
institutional knowledge relating to the proposed rule due to 
retirement. As stated elsewhere in this document, MSHA employs a 
limited number of staff assigned exclusively to rulemaking activities, 
and it is nearly impossible for these employees to advance 
simultaneously on numerous complex rulemaking fronts. Many of the same 
employees, including MSHA's economists,

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technical support specialists, standard and regulation drafting 
personnel, and lawyers are required in both health and safety 
rulemakings, and the orderly implementation of new rules. These 
employees are also engaged in assisting in the day-to-day functioning 
of the Agency by undertaking such tasks as replying to incoming 
correspondence and aiding field personnel in appropriately carrying out 
the mandates of the Mine Act. Thus, rulemaking on even one substance or 
component proposed in the Air Quality rule would require reassignment 
of personnel and resources, thus delaying completion of other rules and 
impeding implementation of new rules.

3. Use of a Non-Regulatory Approach

    At the present time, MSHA is using non-regulatory approaches to 
address the hazards miners may encounter from contact with the 
substances or contaminants that would have been regulated by the Air 
Quality rule. MSHA continues to introduce and promote educational and 
outreach campaigns to inform stakeholders about health and safety 
issues of which they should be aware. One such notable educational 
campaign is the Agency's initiative to alert miners and mine operators 
about the hazards associated with asbestos exposure. In January 2000, 
MSHA initiated comprehensive compliance assistance related to asbestos 
exposure. This compliance assistance included activities such as 
training MSHA inspectors to recognize naturally occurring asbestos and 
to sample where it is suspected; assisting in the development of clean-
up and monitoring procedures; discussing hazards of asbestos exposure 
with miners and the mine operator; providing mine operators with names 
of accredited laboratories that perform asbestos analysis; assisting in 
the implementation of a respiratory protection program; and instructing 
in recognition and avoidance of asbestos.
    In addition to the asbestos compliance assistance activities, MSHA 
maintains a practice of informing mine operators by written 
communication when an MSHA asbestos sample taken at their facility is 
found to be over the OSHA PEL of 0.1 fiber per cubic centimeter (f/cc). 
Another current MSHA practice is to encourage mine operators to comply 
with the OSHA asbestos PEL. MSHA Program Information Bulletin No. P-
0003, ``Potential Exposure to Airborne Asbestos on Mining Properties'' 
(March 2, 2000). Though MSHA has no authority to enforce the OSHA 0.1 
f/cc PEL, the Agency continues to take a proactive approach to 
educating miners and mine operators about the health risks associated 
with exposure to asbestos exceeding the 0.1 f/cc limit. MSHA continues 
to encourage miners and mine operators to take precautionary measures 
to avoid asbestos exposure.
    MSHA has posted valuable information addressing asbestos hazards in 
the mining industry on its Web site, including links to numerous 
outside resources. This information can be accessed at MSHA's source 
page for asbestos, http://www.msha.gov/asbestos/asbestos.htm.
    Consistent with its Occupational Illness and Injury Prevention 
Program, MSHA's Web site also contains information related to the 
prevention of various other health and safety illnesses and injuries. 
For example, MSHA's Web site includes health alerts that address 
substances or topics proposed in the Air Quality rule. These alerts 
include: Working with Mercury; Silica Exposure of Underground Coal 
Miners; Silica Exposure of Surface Coal Miners; Working in Confined 
Spaces; and Welding Fumes Sampling. Topic-specific health documents 
include Arsenic; Effects of Blasting on Air Quality; Carbon Monoxide; 
Hazardous Chemicals at Work; and Respiratory Protection. MSHA also 
posts on its Web site ``best practices'' developed by volunteer teams 
of stakeholders. Best practices are intended to provide practical, 
effective solutions to health and safety risks that might be found in 
the mining environment. Recent best practice recommendations address 
``Reducing Silica Exposure'' and ``Underground Air Quality.'' These 
documents can be accessed through MSHA's Web site, http://www.msha.gov.
    Given the current circumstances, MSHA believes that a non-
regulatory approach is the most appropriate manner to address the 
hazards addressed in the Air Quality proposed rule. MSHA will continue 
to assess the risks posed by the contaminants included in the Air 
Quality proposed rule, and will ascertain whether rulemaking for any 
individual contaminant is appropriate.

4. Meeting With the UMWA

    On May 5, 2004, at the request of the UMWA, MSHA and the Union met 
to discuss issues concerning Air Quality. The parties generally 
discussed whether there was a need for MSHA to more regularly assess 
and update toxic substances standards. In this regard, the parties 
discussed the Agency's capability of doing so, the resources that would 
be involved, and whether there was a suggested process for doing so. 
The parties also discussed the appropriate role of NIOSH's recommended 
exposure levels (RELs) versus the appropriate role of the ACGIH's TLVs. 
Although the UMWA did not have a specific proposal for addressing the 
outstanding issues related to Air Quality, MSHA and the UMWA agreed to 
exchange information and to further explore and deliberate options 
available to the Agency to address those outstanding issues.

D. Conclusion

    In summary, the Mine Act grants the Secretary of Labor exclusive 
authority to determine that a proposed rule should be withdrawn, so 
long as she publishes reasons for her decision not to promulgate the 
rule. With the September 2002 publication of a withdrawal notice, the 
Secretary identified three specific reasons for her determination that 
the Air Quality rulemaking should not continue: the effect of AFL-CIO, 
changes in Agency priorities, and the staleness of the rulemaking 
record. Each of these reasons was necessarily connected to the enormous 
commitment of resources that resumption of the rulemaking would 
require. The AFL-CIO holding illustrates that MSHA would have had to 
expend a substantial amount of resources to ensure that a final rule 
would not result in MSHA's susceptibility to a formidable, vigorous, 
and possibly successful legal challenge. With respect to the Agency's 
change in priorities, the Mine Act affords the Secretary broad 
authority to set and order her rulemaking priorities. The Secretary 
properly exercised that discretion by determining not to proceed with 
the Air Quality rulemaking, particularly in light of the resources that 
would be consumed by such a rulemaking.
    MSHA has also identified several reasons why it continues to devote 
its resources to current rulemaking priorities, and the determination 
that a non-regulatory approach is reasonable in light of existing 
circumstances. For the reasons stated, the Secretary has concluded that 
other rulemakings, most notably the metal/nonmetal diesel particulate 
matter, respirable coal mine dust, and asbestos rules, constitute 
MSHA's highest priorities and that the Agency's resources should be 
focused accordingly. The progress of MSHA's higher priority rulemakings 
would be stymied by the tremendous quantity of resources that would be 
redirected toward an Air Quality rulemaking.
    Although there are potentially thousands of health and safety risks 
that

[[Page 67692]]

MSHA could regulate, it must focus its resources on risks that are 
significant, that the Agency has deemed to be the highest priorities, 
and that the Secretary has found to be appropriate. If data or 
information provides evidence of a significant risk that MSHA has not 
addressed, the Agency will evaluate whether rulemaking should be 
initiated for the individual substance or agent. This document does not 
preclude any Agency action that the Secretary may find appropriate in 
the future.
    For the reasons stated herein, with the exception of provisions 
published at 59 FR 8318 (February 18, 1994), the proposed rule is 
withdrawn.

    Signed at Arlington, Virginia, this 15th day of November, 2004.
David D. Lauriski,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 04-25678 Filed 11-18-04; 8:45 am]
BILLING CODE 4510-43-P