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National Mining Ass'n v. Mine Safety & Health Admin.

Citation: 40 ELR 20088
No. Nos. 08-1241, 09-1087, (D.C. Cir., 03/19/2010)

The D.C. Circuit denied industry groups’ petition for review of a Mine Safety and Health Administration (MSHA) decision to enforce a final exposure limit standard for exposure of miners in metal and non-metal underground mines to diesel particulate matter (DPM) in diesel exhaust. This decision 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 elemental carbon (EC) measurement. The court held that MSHA was not arbitrary and capricious in deciding not to propose a rule to convert the final DPM standard as, among other things, MSHA’s intent was conditioned on having scientific data to support a conversion for EC at low TC levels. The record indicates that MSHA did not have the needed data before the final DPM standard was to take effect. At the same time, MSHA’s decision was not subject to APA notice and comment procedures. MSHA neither enacted a new rule nor modified the final DPM standard, and not modifying a rule is not the same as formulating, amending, or repealing a rule. The court went on to hold that it lacked jurisdiction to address the failure of the National Institute of Occupational Safety and Health to release its study on DPM.