# Amicus Brief — TURNER ELKHORN MINING MINING CO. et al. v. PETER J. BRENNAN AND CASPAR W. WEINBERGER (Nos. 74-1316, 74-1302) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0343%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1975 ## Text ———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.