PETITION FOR REVIEW U.S. DEPARTMENT OF LABOR; MINE SAFETY AND HEALTH ADMINISTRATION
Before Adams, Higginbotham and Van Dusen, Circuit Judges.
On June 12, 1981, Consolidation Coal Company (Consol) submitted a "Petition for Rulemaking" to the Secretary of Labor. It requested the Mine Safety and Health Administration (MSHA) to institute rulemaking procedures to amend the regulations governing the use of self-contained self-rescue devices (SCSRs), which provide oxygen to miners in the event of a mine fire or explosion. Consol desires an amendment which would approve its plans to develop an alternative SCSR capable of being worn on a miner's belt. Although MSHA has not yet acted definitively on Consol's petition for rule-making, Consol contends that this inaction is tantamount to a denial of its request, and it now asks this Court to review the agency's failure to convene new rulemaking proceedings. We conclude that we lack jurisdiction to entertain Consol's petition.
I. The Regulatory Background
Underground mine fires and explosions generate noxious gases and deplete the oxygen in the area of such fires and explosions, and thus create a danger that miners will be asphyxiated.*fn1 The initial regulations promulgated to combat this problem required mine operators to supply filter-type self-rescuers to underground miners. 35 Fed.Reg. 17890, 17892 (Nov. 20, 1970). The filter devices proved inadequate, however, because they do not generate oxygen and because in the process of converting carbon monoxide to carbon dioxide they often render the air too hot to breathe. See 43 Fed.Reg. 54241-42 (Nov. 21, 1978). In 1970 the Bureau of Mines commenced an extensive program to test oxygen-generating SCSRs. Because these devices produce their own oxygen supply, a miner can survive for a significant period of time in an atmosphere polluted by toxic gases and depleted of oxygen. During the research and testing period at least two prototype SCSRs were developed and approved. The testing efforts culminated in rulemaking proceedings and in regulations that were promulgated on November 21, 1978. 43 Fed.Reg. 54241; 30 C.F.R. § 75.1714.-1714-3. Adopted under § 101(a) of the Mine Act, 30 U.S.C. § 811, which authorizes the Secretary to issue improved mandatory safety standards for the protection of miners, the regulations require operators of underground coal mines to provide miners with an approved SCSR device capable of supplying oxygen for at least 60 minutes. The 60 minute requirement is derived from § 317(n) of the Mine Act, 30 U.S.C. § 877(n):
A self-rescue safety device approved by the secretary shall be made available to each miner by the operator which shall be adequate to protect such miner for one hour or longer.
The operator may meet the SCSR requirement by providing an approved one-hour SCSR, an approved belt-worn SCSR that provided protection of not less than ten minutes duration combined with an approved one-hour canister (known as a 10/60 device), or any other approved self-contained breathing apparatus that provides at least one hour's protection. 30 C.F.R. § 75.1714-1. See also 43 Fed.Reg. 54241. The regulations stipulate that SCSRs should be worn by miners whenever possible but also allow SCSRs to be stored under the following conditions: (1) where the wearing or carrying of an SCSR is hazardous, it may be stored no more than 25 feet from the miner; (2) where a miner works on or around equipment, the SCSR may be placed in a readily accessible location on the equipment; and (3) when the MSHA District Manager has approved an operator's proposed storage plan after considering ten specific factors and "other matters bearing on the safety of miners." See 30 C.F.R. § 75.1714-2(c), (d), (e), and (f). The 1978 regulation also established a two-year phase-in period, and set December 21, 1980 as the implementation date. This two-year period was designed to give operators sufficient time to select, order, and supply the approved SCSRs, and to enable MSHA to conduct field evaluations of the currently approved and available devices. The 1978 regulations became effective on December 21, 1978, and no party sought to challenge them.
During the phase-in period unexpected delays hampered the field testing program. In addition, it became apparent that manufacturers had not produced a sufficient quantity of SCSRs to meet the original deadline.*fn2 Consequently, in December 1980 the Assistant Secretary for Mine Safety and Health determined that it was necessary to delay the implementation date for six months, to June 21, 1981, and he revised the 1978 rule accordingly, 45 Fed.Reg. 80501.
The Council of Southern Mountains, a group representing the health and safety interests of miners and an intervenor in the present dispute, challenged the procedural validity of the six month deferral in the United States Court of Appeals for the District of Columbia Circuit. Council of Southern Mountains v. Donovan, 209 U.S. App. D.C. 318, 653 F.2d 573 (D.C. Cir. Apr. 16, 1981). The American Mining Congress, an industry representative, intervened in those proceedings, and, as part of its argument in support of the extension, assured the court that the industry fully intended to comply by June 21, 1981. Id. at 583, n.41. Reasoning that the circumstances were sufficiently exceptional to excuse the Secretary's failure to follow the notice and comment procedures of the Administrative Procedure Act, and that the extension decision was neither arbitrary nor capricious, the District of Columbia Circuit upheld the 6 month deferral. It expressed regret, however, that the crucially important effort to equip miners with SCSRs was being prolonged, and rested its decision in part on the assurances from the parties that they would faithfully comply with the new June 21 deadline.
At the time the regulations were amended in December, 1980, all affected parties were aware which SCSRs were approved and commercially available. The safety advantages as well as the potential hazards of the approved devices were also well known. In addition, operators and miners were cognizant that the available SCSRs would in most cases have to be stored in the mines, because their size and weight made them too cumbersome to wear while working. In preparation for implementing the regulations, the Secretary had commissioned a private engineering firm to prepare guidelines for the storage of SCSRs, and the third draft of these storage guidelines was widely disseminated to all affected parties in October, 1980. Indeed, the lack of final storage guidelines may have been a factor in the decision to defer implementation of the SCSR rules until June 21, 1981. See CSM v. Donovan, supra, at 583.
The final storage guidelines were issued in June, and MSHA released the last version of the field evaluation tests at the same time. The evaluation report concluded that the currently available SCSRs were safe and reliable, and that miners would be able to comply with the regulatory requirement to wear, carry, or remain within 25 feet of an SCSR while working, although storage would be the rule, rather than the exception contemplated in 1978. The report also urged the continuation of research efforts to reduce the size and weight and to enhance the wearability of the SCSRs.
In preparation for the imminent implementation date, on June 8, 1981 MSHA sent enforcement policy memoranda to its district managers, who would be responsible for monitoring compliance with the SCSR requirements. One memorandum outlines criteria for the approval of storage plans under the provisions of 30 C.F.R. § 75.1714-2. Another offers guidance on when to issue citations, and explains that because of the small number of SCSRs actually produced to date, "operators will not be issued a citation where they show a valid purchase order or other reliable evidence of having ordered approved self-contained self-rescuers on or before June 21, 1981." (Joint Appendix at 590).*fn3
As the June 21 implementation date drew near, Consol signed a letter of intent with Dr. Eliezer Kamon, a professor at Penn State University who had been studying the SCSR problem. The letter of intent, dated June 11, 1981, stated that Consol would commit $500,000 to the development of a belt-worn SCSR capable of providing a 30 minute oxygen supply, if MSHA amended or ...