The opinion of the court was delivered by: John D. Bates United States District Judge
In the wake of the mining tragedies in the spring of 2006 in West Virginia and Kentucky, the United Mine Workers of America, International Union ("UMWA"), several state and federal agencies, and Congress have all considered how to increase protections for underground coal miners. Plaintiff UMWA has, in particular, raised concerns about the adequacy of regulations governing breathing devices known as "self-contained self-rescuers" ("SCSRs"), which are provided to coal miners for their protection in the event that the atmosphere is compromised, such as after a mine explosion or fire. In this present action, plaintiff seeks an injunction from the Court ordering the Mine Safety and Health Administration, and all others acting in concert with them, to require (1) immediate and periodic random checks of SCSR units in coal mines, and replacements if faulty units are discovered; (2) immediate and recurring "hands-on, in-mine emergency-like training" for all underground coal miners that includes breathing through simulated SCSRs; and (3) inventory maintenance and reporting by operators that will enable the government to respond quickly to future problems with SCSR units. Compl. at 6-7. Plaintiff has filed a motion for a preliminary injunction requesting the provision of such relief during the pendency of this action, on the ground that miners continue to be exposed to a substantial risk of injury and death absent immediate relief. Defendant has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the ground that plaintiff has failed to meet the threshold requirements for relief in the nature of mandamus and has circumvented statutory provisions that would limit any relief potentially available to a circuit court of appeals. The Court concludes that plaintiff has failed to state a claim upon which relief can be granted, and that any latent claims based on unreasonable delay by MSHA are beyond this Court's jurisdiction. Accordingly, the Court will dismiss this action and also deny plaintiff's motion for a preliminary injunction.
I. Statutory and Regulatory Background
The Federal Mine Safety and Health Act of 1977*fn1 ("Mine Act" or "Act") places regulation of the entire mining industry under a single statute, and assigns to the Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), the task of developing, promulgating and revising mandatory health and safety standards, as well as inspecting mines and enforcing such standards. See generally Oil, Chem. and Atomic Workers Int'l Union v. Zegeer, 768 F.2d 1480, 1482 (D.C. Cir. 1985) ("OCAW"). Section 101(a) of the Act directs the Secretary to promulgate "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). Section 101(b) further directs the Secretary to promulgate emergency temporary mandatory standards where she has made a determination that miners are exposed to "grave danger" under certain circumstances. Id. § 811(b). An emergency standard takes immediate effect upon publication in the Federal Register, and also serves as a proposed rule for the rulemaking proceeding authorized under section 101(a). Id. The Secretary must complete the permanent health or safety standards no later than nine months after publication of the emergency standard. Id.
Section 103(a) of the Act provides that authorized representatives of the Secretary of Labor (or the Secretary of Health and Human Services) shall make "frequent inspections and investigations" in mines each year for the purpose of, inter alia, obtaining, utilizing, and disseminating information relating to health and safety conditions and regulatory standards, determining whether an imminent danger exists, and determining compliance with the Act. Id. § 813(a). Underground coal mines must be inspected at least four times per year with respect to imminent danger and compliance determinations. Id. Moreover, "[t]he Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not limited to, the hazards found in mines subject to this chapter, and his experience under this chapter and other health and safety laws." Id.
MSHA first promulgated standards governing self-rescue units generating oxygen, commonly referred to as SCSRs, in 1978. See 43 Fed. Reg. 54241 (Nov. 21, 1978). These regulations are set forth at 30 C.F.R. §§ 75.1714 to .1714-3. Each mine operator is required to make available to each miner who goes underground an approved SCSR that is adequate to protect the person for at least one hour, and must instruct and train such person in the use and location of the device. 30 C.F.R. § 75.1714(a) and (b).*fn2
Mine operators also must provide for inspection, testing, maintenance, repair, and recordkeeping for SCSRs pursuant to 30 C.F.R. § 75.1714-3.*fn3
On March 9, 2006, MSHA promulgated an emergency standard "in response to the grave danger which miners are exposed to during underground coal mine accidents and subsequent evacuations," responding in particular to the fatalities at the Sago Mine and the Aracoma Alma No.1 Mine in West Virginia during January 2006. 71 Fed. Reg. 12252, 12253-54 (Mar. 9, 2006). The emergency standard includes requirements for immediate accident notification to MSHA by mine operators, the provision of additional SCSRs for all underground coal mines, SCSR storage and use, evacuation training, and the installation and maintenance of lifelines. Id. at 12252.
With respect to SCSRs, at least one additional SCSR that will provide protection for at least one hour must be stored for each individual underground. Id. at 12263, 12270 (codifying requirement at 30 C.F.R. § 75.1714-4(a)). "Thus, each miner or person underground will have the self-rescuer device that is traditionally carried with him or her and an additional SCSR readily accessible." Id. at 12263. In mines where two SCSRs will not provide enough oxygen for all persons to safely evacuate under emergency conditions, the operator must provide additional SCSR devices in the primary and alternate escapeways. Id. at 12264, 12270 (codifying requirement at 30 C.F.R. § 75.1714-4(c)). The emergency standard also increases the required SCSR training from once each year to at least every 90 days, and adds a requirement to provide new miners with "hands-on training" in the transfer of SCSRs. Id. at 12254-55, 12268-69 (codifying these requirements at 30 C.F.R. §§ 48.5, 48.6, 48.8, 48.11, and 75.1502). With these changes, SCSR training now must include "[h]ands-on training" in the donning, use, and transfer of SCSRs as part of quarterly mine evacuation drills, to provide a more realistic training environment. Id. at 12254-55, 12262. MSHA solicited comments on several issues related to SCSRs, including the imposition of a semi-annual SCSR inventory reporting requirement on operators, reporting requirements related to SCSR use and malfunctions, and any "alternative realistic emergency evacuation practices." Id. at 12262, 12265. Pursuant to section 101(b), by December 9, 2006, MSHA must promulgate a permanent health or safety standard on the matters covered by the ETS.
On June 15, 2006, Congress enacted the Mine Improvement and New Emergency Response Act of 2006, Pub. L. 109-236, 120 Stat. 493 (2006) ("MINER Act"), which took effect the same day. Under section 2 of the MINER Act, each underground coal mine must, within 60 days of enactment, "develop and adopt a written accident response plan that complies with this subsection with respect to each mine of the operator," which must then be submitted to MSHA for review and approval. 120 Stat. at 493-94 (to be codified at 30 U.S.C. § 876(b)(2)). In determining whether to approve a particular plan, the agency must consider all comments submitted by miners or their representatives. Id. The accident response plan must "provide for the evacuation of all individuals endangered by an emergency" and "provide for the maintenance of individuals trapped underground in the event that miners are not able to evacuate the mine."
Id. at 493. The plan also must provide for "post-accident breathable air" with respect to supplies, maintenance, and training, as follows:
(I) emergency supplies of breathable air for individuals trapped underground sufficient to maintain such individuals for a sustained period of time;
(II) . . . caches of self-rescuers providing in the aggregate no less than 2 hours per miner to be kept in escapeways from the deepest work area to the surface . . .;
(III) a maintenance schedule for checking the reliability of self rescuers, retiring older self-rescuers first, and introducing new self-rescuer technology, such as units with interchangeable air or oxygen cylinders not requiring doffing to replenish ...