Amicus Brief — TURNER ELKHORN MINING MINING CO. et al. v. PETER J. BRENNAN AND CASPAR W. WEINBERGER (Nos. 74-1316, 74-1302)

———EEyE—E———

Suprome Cowt, U. &

} ; Wl he

IN THE

Supreme Court of the United States

OcTroBeER ‘erm, 1974

No. 74-1316

Turner E.knorn Minino Company, Er At,

Appellants,

v.

Joun T. Dun vop, SecrerTary or LABOR AND

Caspar W. WEINBERGER, SECRETARY

oF HeALYH, EpUCATION AND WELFARE,

Appellees.

On Appeal from the United States District Court for the

Eastern District of Kentucky

BRIEF OF BITUMINOUS COAL OPERATORS’

ASSOCIATION, INC., AMICUS CURIAE

a eee

Guy FARMER

WILLIAM A, GERSHUNY

Farmer, Sartey, McGuinn & FLoop

1120 Connecticut Avenue, N.W.

Washington, D.C, 20036

Attorneys for Bituminous Coal

Operators’ Association, Ine.

Paess or Byraonw S. Apams Paring, lnc., Wasuineton, D. C.

UD

TABLE OF CONTENTS

Page

IT. QUESTION PRESENTED ............ccccccccccce. 2

IT. STATEMENT OF THE CASE ..........2-cceceeccece 2

A. The Statutory Scheme ................005.. 2

B. Administration of Benefits Program ........ 5

C. Coal Mining Industry ...................... 7

Sas GN. Sc ckunsckssuhaddaudibeueeesdneles ce 11

TABLE OF CITATIONS

REGULATIONS:

30 C.F.R. Sections 70.220, 70.250, 71.107 and 71.108 .. 9

MISCELLANEOUS:

MT OE EE ie enue cdddeedeussobwatodek cecus 5

Legislative History/Federal Coal Mine Health and

of 3 eee eae 3

committee on Labor Standards, House Committee

on Education and Labor, presented February 25,

Re ee eRe ee er en 3

partment of Interior .......ccccccecccccccceces i)

U. S. Department of Labor, Monthly Labor Review

(March, 1974) p. 28-29 .......cccccccccccccccee o, 9

CasEs:

Railroad Retirement Board v. Alton R. Co., 295 US.

ee EE. 45 bd bad iued do uuce di eeeednccdeceodus 11

IN THE

Supreme Court of the United States

OcTober Term, 1974

No. 74-1316

TURNER ELKHORN MINING CoMPANY, ET AL.,

Appeliants,

v.

JoHN T. DuN Lop, Secrerary or LABOR AND

Caspar W. WEINBERGER, SECRETARY

oF HEALTH, EpuUCATION AND WELFARE,

Appellees.

—-———

On Appeal from the United States District Court for the

Eastern District of Kentucky

ee

BRIEF OF BITUMINOUS COAL OPERATORS’

ASSOCIATION, INC., AMICUS CURIAE

—_—-

The Bituminous Coal Operators’ Association, Ine.,

respectfully files this brief amicus curiae, with the

written consent of all parties, pursuant to Rule 42 of

the Rules of the Supreme Court.

2

I

QUESTION PRESENTED

This brief will address only the following issue,

while supporting appellants on the other issues present

in the case:

Whether the black lung benefits provisions of the

Federal Coal Mine Health and Safety Act of 1969, as

amended, are constitutionally permissible under the

Fifth Amendment, insofar as they impose upon indi-

vidual coal mine operators the obligation to compen-

sate ex-coal miners for occupational disabilities aris-

ing out of employment relationships which had termi-

nated prior to enactment of the legislation.

Il

STATEMENT OF THE CASE

BUOA adopts the statement of the ease as set forth

in the brief submitted by Turner Elkhorn Mining

Company, cf al., Appellants at No. 74-1316. The fol-

lowing will supplement Appellants’ statement and

briefly restate certain facts for the convenience of the

Court in its study of this brief amicus curiae.

A. The Statutory Scheme

Pneumoconiosis, which legislatively is defined as ‘‘a

chronie dust disease of the lung arising out of employ-

ment ina coal mine’’,’ was not recognized by medical

authorities in this country as a disease until the mid-

1990's, In commenting upon the legislation, Senator

Javis reviewed the history of the disease :

*T emphasize, Mr. President, that the entire

Nation shares the responsibility for this tragic

‘See. 402(b), Federal Coal Mine Tlealth and Safety Act of

1970, as amended, 30 U.S.C, 902(b).

3

situation: witness after witness who testified on

this bill stressed America’s complete insensitivity

to the problem of black lung until very reeently—

it was not until the mid-1950’s that. black lung was

recognized by responsible medieal authorities as :

disease, Britain, on the other hand, began to ree-

ognize the disease in 1984, and it became compens-

able in 1948.) In the United States, until last year,

only three States recognized black lung as a com-

pensable disease; in other States the only way

miners could reeeive compensation is if they eould

convince examining boards they had silicosis, whieh

usually was not possible.’’?

It was not until 1970 that Congress first enacted

mandatory standards for the measurement, control and

ultimate reduction of respirable dust levels in under-

ground coal mines. Title LL of the Aet was the first

federal legislation to provide for periodic sampling of

the mine atmosphere, See, 202(a), and the ultimate

reduction in the average concentration of respirable

dust in the mine atmosphere to whieh each miner in

the active workings is exposed to 2.0 milligrams or less

of respirable dust per cubie meter of air, See.

202(b)(2). This current level, which medical authori-

ties believe should prevent new incidences of pneumo-

coniosis and deter further development of disease in

existing cases,” has been achieved in virtually all coal

mines, through enormous capital expenditures and

heavy commitments of manpower and technology.

* Legislative History/Federal Coal Mine Health and Safety

Act, p. 339.

®*Statement of Andre Maisonpierre, Vice President, American

Mutual Insurance Alliance before Subcommittee on Labor Stand-

ards, House Committee on Education and Labor, presented Febru-

ary 25, 1975.

4

Similarly, it was not until 1970 that Congress first

established a program to compensate miners totally

disabled by pneumoconiosis and dependents of miners

whose death was due to pneumoconiosis. The program

consists of two parts, Part B (See. 411-415) and Part C

(See. 421-431). The former, Part B, is a federally-

financed program which provides benefits on the basis

of claims filed on or before December 31, 1973. The

latter, Part C, creates a program under which individ-

ual coal mine operators are responsible for the payment,

of benefits, beginning on or after January 1, 1974, on

the basis of claims filed on or after July 1, 1973.

Claimants under each program are aided in their

proof by certain legislated presumptions as to existence

of the disease, its causal relation to mine employment,

its totally disabling effeet and its causal relation to

the death of miners, all designed to make it much easier

for a claimant to perfect his claim:

1. If a miner with pneumoconiosis was employed

for ten years in coal mines, it will be rebuttably

presumed that the disease arose out of such em-

ployment. See. 412(a)(1).

2. If a deceased miner was employed for ten years

in coal mines and died from a respirable disease, it

will be rebuttably presumed that his death was

‘aused by pneumoconiosis. See. 412(a) (2).

4. Ifa miner is or has suffered from a chronie dust

disease of the ling which meets certain specified

medical criteria, it will be conclusively presumed

that he is totally disabled due to pneumoconiosis

or that he died of it or was totally disabled by it

when he died. See. 412(a) (3).

5

4. If a miner with a totally disabling respiratory

or pulmonary impairment was employed for fif

teen years in underground mines (or surface mines

under similar conditions), it will be rebuttably

presumed that he is totally disabled by pneumo

coniosis, or that he died of it or was totally cis

abled by it when he died. See, 412(a)(4).

part ©, the operator-funded program, is not limited

to ypliners now actively employed tn mining activities

who may become eligible subsequent to January 1,

1974. On the contrary, claimants may be eligible for

hene'fits even if the claim is based on death or disability

which occurred before enactment of the law and even

if the miner had ceased to be employed in the industry

prio? to 1970.

B. Administration of Benefits Program

Qwer 280,000 Part B claims have been allowed by

the oe ial Security Administration. Of these, 174,000

(20,000 more than the entire current work foree in

= "coal industry) were filed by coal miners and the

reminder by widows and other dependents.’

ower 51,000 Part © claims were filed through De

jber 31, 1974. Of these, 45,519 were received from

cem

mine? and the remainder from dependents.’ Initial

dete;*minations have thus far been made by the Depart-

i U" S. Department of Labor, Monthly Labor Review (March,

| p. 28-29

—-

s pirst Annual Report of Department of Labor as to admin-

I,

istrat jim of Black Lung Program, dated May 30, 1974.

6

ment of Labor in 34.5 pereent (17,688) of the filings

and of those on which initial determinations were made,

21.6 pereent (3,817) were tentatively approved as en-

titled to benefits. Of those approved involving alleged

liability of coal mine operators, * 97 pereent are being

contested by the particular coal operator upon whom

the Government has attempted to place the burden of

the entire payments.

As of July 20, 1975, less than twelve of the contested

claims have been heard and decided on their merits

by an administrative law judge. Only three involved

claimants who were employed at a coal mine subse-

quent to enactment of the law. The remainder had

left the industry prior to 1970,

‘Gordon Abney, Sr. (Docket No. 75-BLA-18) ;

age 80; last employed as miner in 1957 when leg

was amputated; compensation awarded June 13,

1975,

:Dominie C. Brisko (Docket No. 75-BLA-21) sage

69; last employed as miner in 1954; compensation

awarded April 11, 1975.

‘James Fields (Docket No. 75-BLA-9) ; age 55;

last employed underground in coal mine in 1955;

employed as coal truck driver 1955-1966 ; compen-

sation awarded April 9, 1975.

‘Abel Hamilton (Doeket No. 75-BLA-27) ;: age 45;

last employed in coal mine in 1957; other non-coal

mine employment to 1971; compensation awarded

July 9, 1975.

‘Reed Hart (Doeket No. 75-BLA-22) ; age 23; last

employed at coal mine as surveyor in 1970; other

“Where no financially responsible employer exists, benefits

are paid by the Department of Labor.

7

non-coal mine employment to 1973; compensation

awarded May 14, 1975.

-Martin Hogar’ y (Doeket No. 75-BLA 23) ;age 73;

last employed at surface mine in 1952; other non

coal mine employment to 1960; compensation

awarded May 16. 1975.

Jack Hoffman (Docket No, To

ployed at surface mine in 197

awarded June 3, 1975.

‘Nathaniel Hunter (Docket No. 75-BLA-48) ; age

89; last employed in foundry on surface at coal

mine in 1959; compensation awarded May 15, 19%.

BLA-47); age 65;

}; compensation

II.A-15); last em

,; compensation

,

‘Henning Clang (Docket No. T5

last employed at coal mine in 197

awarded June 20, 1975.

‘Boyd Shaffer (Docket No. 7 BLA-11); age 67;

last employed at coal mine in 1oo] : other non coal

mine employment to 1973; compensation awarded

1975.

‘Monroe Wallen (Docket No. 75-BLA-24) ; age 64;

last employed at coal mine in 1953; other non coal

mine employment to 1975; compen ation awarded

May 26, 1975.

C. Coal Mining Industry

The Act defines ‘‘coal mine”’’ as:

“ an area of land and all structures, facilities,

machinery, tools, equipment, shafts, slope , tunnels,

excavations, and other property, real or personal,

placed upon, under, or above the surface of such

land by any person, used in, or to be used in, or

resulting from, the work of extracting in such area

bituminous coal, lignite, or anthracite from its

natural deposits in the earth by any means or

methods and the work of preparing the coal so

extracted, and ineludes custom coal preparation

facilities,’ See. 3(h); 30 U.S.C. 802(h).

8

The term “work of preparing the eoal’’ is defined as:

*... the breaking, crushing, sizing, cleaning, wash-

ing, drying, mixing, storing, and loading of bitumi-

nous coal, lignite, or anthracite, and such other

work of preparing such coal as is usually done by

the operator of the coal mine.’ See. 301); 30 ULS.C,

8O2(i).

Included within these broad definitions are more than

4,900 underground and surface coal mines, produe-

ing from 20 tons to 30,000 tons per day of bituminous,

anthracite and lignite coal with from one to 960 em-

ployees, and coal preparation plants, many of which

are located off the mine property.

Historically, several industry characteristies have

resulted in a high level of mobility among coal miners.

One is the nature of coal mining itself, which produces

an exhaustable product. As a coal mine begins to be

worked out, the miners move on to newly opened or

existing mines, frequently operated by another mining

company, Another characteristic which contributes to

the mobility of the work foree is the geographical

clustering of large numbers of coal mines. Unlike

industries which have great latitude in locating their

manufacturing facilities, the mining industry locates

where coal is found to exist in mineable quantities and

quality in the eoal fields in a relatively few states.

Thus, a wide choice of employment at different mines

and companies is available to most coal miners, within

driving distance of their homes.

Kmployment in coal mines had declined from a high

of 690,000 workers in 1923 te 120,000 in 1970, when the

Act became effective.’ Sinee then, the number of em-

* Bureau of Labor Statisties. Department of Labor, Wage Chron-

ology Bituminous Coal Mine Operators and United Mine Workers

of America; October 1933—November 1974, p. 1 (Bulletin 1799).

9

ployees had increased to more than 150,000." Thus,

even without considering work force turnover, the num-

ber of former miners exceeds by a multiple of four the

current work force in the coal industry. There are eur-

rently more than 83,000 of these former miners on

pension under the industry pension fund,

Apart from the grossly disproportionate number of

former miners, the coal mining industry has yet another

unique characteristie—it has the oldest labor force of

any industry with the exception of the railroad indus-

try.” The coal mine labor force has a substantial per-

centage of miners 45 years of age or older, most of

whom have long work histories in the mines.

Of the current labor force in the coal industry of

more than 150,000, more than 60,000 are employed at

surface mines or at surface facilities which serve un-

derground coal mines. Surface employees are exposed

to considerably lower levels of respirable coal dust and

lower incidences of pneumoconiosis, a fact which is

reflected in the Department of Interior’s frequency of

sampling requirements, 30 C.F.R. Seetions 70.220,

70.250, 71.107 and 71.108.

Of the approximately 90,000 miners who are em-

ployed underground at underground mines, almost half

are involved in non-production activities, such as ex-

tending haulage tracks, belts, trolley wire and water

lines on haulage roads; supporting roof on haulage

roads; construction of stoppings (permanent parti-

tions); repair and maintenance of equipment; and

* 1S. Department of Interior, Bureau of Mines Mineral Year-

book (1972); monthly statistical reports, Dept. of Interior.

*US. Department of Labor, Monthly Labor Review (March,

1974) p. 29.

10

supply and haulage of equipment and material. These

employees, like surface employees, are exposed to con-

siderably lower levels of respirable coal dust than those

working at the mine face extrac‘ing the coal.

The black lung benefits provisions of the Act, how-

ever, draw no distinction between surface and under-

ground employees or production and non-production

employees. Thus the Act, which defines ‘‘miner’’ as

“any individual who is or was employed in a coal

mine,’? See, 402(d), 30 U.S.C, 902(d), permits any

former or present coal mine employee to assert a

claim and affords him the benefit of the statutory pre-

sumptions, regardless of the levels of the respirable

coal dust to which he may have been exposed.

Ill

ARGUMENT

The Black Lung Benefits Program Insofar as It Bases Liability

of Individual Coal Mining Companies on Employment Re-

lationships Which Terminated Before Enactment of the

Law, on Employment Conditions Which No Longer Exist

and on a Disease Not Then Recognized Is Constitutionally

Defective

The Black Lung benefits program, as this brief

amicus curiae will demonstrate, is a classic example of

retroactive legislation which arbitrarily creates new

obligations based on preenactment transactions having

no current or continuing effect. As such, it is violative

of the Due Process Clause of the Fifth Amendment.

The Part C program incorporates a number of im-

portant .eatures which collectively taint its validity.

it renders eligible for benefits all persons (and

also a range of widows or dependents of such

persons) who were employed in the industry at

any time in the past. In an industry currently

1]

employing approximately 150,000 persons, there

are more than half a million former employees.

Seven of the 11 claims already adjudicated by the

Labor Department involve claimants who left the

industry in the 1950's,

it provides benefits to individuals who are re

tired (and currently receiving pensions under the

industry’s pension program), or were discharged

for cause, or quit to aecept gainful employment in

other industries. Cf. Railroad Retirement Board

v. Alton Bh. Co., 295 US. 330 (1935). OF the ad

judicated claims, one involved a miner who was

disabled in 1957 following amputation of a leg;

another quit employment as a miner in 1951, but

worked in other industries for another 22 years;

another left the coal industry in 1953, and worked

in other industries until 1973; and another quit

mining in 1957, but was employed in other indus-

tries until 1971.

it establishes presumptions in aid of proof of

eligibility, without regard to whether claimant was

employed on the surface or underground at a coal

mine, or in a production or non-produetion capae

ity, or was exposed to harmful levels of respirable

coal dust. Of the 11 adjudieated cases, four in

volve claimants who worked on the surface in non-

coal producing capacities, which are recognized by

Interior Department as involving considerably

lower levels of respirable coal dust.

it imposes liability on the coal mining company

which last employed the claimant without regard

to his length of serviee with that company as com-

pared to other companies, or whether the last place

of employment was a surface or underground mine,

or whether claimant otherwise was exposed to

harmful levels of respirable dust. Thus, for ex-

ample, a coal mining company which employed a

claimant ata surface mine in 1968 and 1969 would

be liable for the total compensation claim based

12

on claimant’s exposure to high levels of respirable

coal dust for many years previously at under-

ground mines of other companies.

: it imposes total liability on individual coal min-

ing companies, rather than providing for compen-

sation under a program funded by the industry.

Thus, black lung claims based on past employment

with a company which had been engaged in mining

operations on a much larger seale necessarily would

have to be financed by that Company out of cur-

rent, albeit reduced, production.

: it imposes liability for compensation without

having first enacted legislative measures determin-

ing levels of respirable coal dust which would not

he conducive to the incidence of pneumoconiosis.

Kqually important, coal prices might have been

adjusted in accordance with sound accounting

principles to reflect the then present value of such

claims had they been reasonably anticipated.

: it imposes present liability based on a respira-

tory condition which was not recognized as an oec-

cupational disease in this country until the mid-

20's and on mine conditions which were not made

the subject of health standards until 1970. It was

not until 1970 that coal mining companies were

required to sample and take measures to reduce

respirable coal dust levels in underground coal

nunes,

These retroactive characteristics of the black lung

program alone make it perhaps unique among work-

men’s compensation programs in this country and

render it constitutionally defective, Additionally, the

economic imbalance which it creates among competing

coal producers by the discriminatory standards for

imposing liability on an individual coal company is

additional evidence that this aspect of the program

does not pass constitutional scrutiny.

: tees ee

13

As pointed out by Appellants Turner Elkhorn, the

underlying philosophy of industrial compensation is

that the economic losses of the worker are a part of

the cost of production and are reflected in the price

of the product. But by imposing unpredictable retro-

active economic burdens on the employer, the philoso-

phy is eroded and the mine owner has no way to recoup

these costs.

The black lung benefits program, insofar as it ap-

plies prospectively to occupational disabilities suffered

by workers in the employ of a coal mining company

on or after enactment of the law, incorporates more

traditional workmen’s compensation concepts. lkm-

ployers have the opportunity to take appropriate

safety measures to reduce respirable dust levels in the

working place, to monitor the physical condition of

his employees, to transfer those of his employees with

some evidence of a respiratory disfunction to less-

dusty or even dust-free occupations, and to sereen out

job applicants with existing respiratory or pulmonary

conditions. In short, each company subject to the pro-

gram is in a position prospectively only to control pro-

duction costs—and thus improve his competitive posi-

tion in the industry—by maintaining a safe and health-

ful working environment for his employees.

These economic principles are thrown into disarray,

however, by several features of the law including the

retroactive aspect of the black lung program. In this

regard employers have no control over the cost of eur-

rent and future production, insofar as a part of those

costs are based on past transactions which have no con-

tinuing effect. Current production costs and, hence, the

employer’s current competitive position in the market

bear no relation to the employer’s current working con-

14

ditions or to the size of the current work force. The em-

ployer whose coal mine meets—and even exceeds—fed-

eral respirable coal dust standards and whose work

force is free from evidence of pneumoconiosis (as evi-

denced by results of the mandatory x-rays) neverthe-

less is competitively disadvantaged by reason of his ex-

posure to claims from former employees whose employ-

ment has long since been terminated. <A typical ex-

ample illustrates the point:

Company A, engaged in the production of coal for

40 years, has a current work force of 500 employees

and produces 1 million tons per year. More than

5,000 individuals have been employed by the Com-

pany at one time or another over the years prior

to 1970. Company B, engaged in the production

of coal since only 1970, also produces 1 million

tons of coal per annum with a work foree of 500.

Company A is faced with a potential claims lia-

bility grossly disproportionate to his current work

force and current ability to meet these many ob-

ligations, since the number of claimants for which

he is made responsible easily could exceed the

number of present employees and exceed his ability

to maintain a competitive operation. Company B,

unburdened by this potential liability, except with

reference to his current work force, has the dis-

tinct competitive advantage.

When one considers that the Part C program is not

industry-funded, but rather is funded by individual

employer-operators, it becomes apparent, we submit,

that this legislation, insofar as it is based on employ-

ment relationships terminated prior to enactment of

the law, results in such arbitrary discrimination among

competing coal mining companies otherwise similarly

situated as to render it constitutionally invalid.

EP em wae

a

vr

Finally, the various legislative assumptions which

make it virtually impossible to defend against black

lung claims vastly increase the financial burden and

makes the uneven competitive effeet more pronounced,

Respectfully submitted,

Givuy FARMER

WILLIAM A, GERSHUNY

FarMeER, Suiptey, MCQUINN & FLoop

1120 Connecticut Avenne, N.W.

Washington, D.C, 20036

Attorneys for Bituminous Coal

Operators’ Association, Ine,