Petition — Carbon Fuel Co. v. Andrus

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Supreme Court, U.S, |

{ FILBD |

|; AUG *F 1978

re je, x

IN THE ,

Supreme Court of the United States

OcToBeR TERM, 1978

No. 78-218

CaRBON Fvet Company, Petitioner,

Ceci D. ANDRUS, SECRETARY OF THE INTERIOR, and

Unitep MINE Workers or America, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

R. G. KELLY

CHARLES Q. GAGE

C, Lyncu Curisti1An, ITT

JACKSON, KELLY, Hott & O’FARRELL

P. O. Box 553

Charleston, West Virginia 25322

Larry L. ROLLER

SECRETARY AND COUNSEL

CarBoN FueL CoMPANY

Suite 1300; One Valley Square

Charleston, West Virginia 25301

Counsel for Petitioner,

Carbon Fuel Company

Pagss of Braon S. ADAMs Paintine, Inc., WasHINocTOoN, D. C.

Page

EE II 1

ee aah sakes sees sessseeccces 2

ei vcaccbecesccectevevseces 2

ConstTITUTIONAL Provision INVOLVED ................ 2

Statutory Provisions INVOLVED .................--. 3

I eke sb ccccccccsessccccvcss 5

Reasons ror GRANTING THE WRIT ...............005: 9

1. The Construction Given Section 105 of the 1969

Act by the Court of Appeals, Which Construc-

tion Prohibits Administrative Review of the

Merits of a Notice of Violation, Conflicts With

All Reported Decisions of This and Other

Courts Concerning the Scope of Review Under

Section 105, and Is Clearly Wrong .......... 9

2. The Construction Given Section 105 of the 1969

Act by the Court of Appeals, Which Construc-

tion Prohibits Administrative Review of the

Merits of a Notice of Violation, Contravenes

the Due Process Clause of the Fifth Amend-

ment to the United States Constitution ....... 12

3. This Case Involves Fundamental Constitu-

tional Issues and Significant Practical Consid-

erations Bearing Upon the Enforcement of the

1969 and 1977 Acts, Which Issues and Consid-

erations Affect the Entire Coal Industry .... 14

i CPC ER PEPE USeGdectecesccerescececccs 15

UPC C Gees dea eepecccasesccsecess la

nese ada deeccencecccccscccescs l6a

ii CITATIONS

Page

CONSTITUTION :

Sree SEWN condacusuh ks beebae se ce nee Has 2,12

Cases:

Freeman Coal Corp. 1 IBMA 1 (1970) ............. 9

Fuentes v. Shevin, 407 U.S. 67, rehearing denied, 409

ay MEE DibGAUAi vic Obs Cava bheeakanseues 13

Itmann Coal Company v. Secretary of Labor, Mine

Safety and Health Administration, Docket No.

HOPE 78-356 (May 26, 1978) ........ccccscceess 15

Kanawha Coal Co. v. Andrus, 553 F.2d 361 (4th Cir.

EELS OM IRS ITE 10

Lucas Coal Co. v. Interior Bd. of Mine Operations

Appeals, 522 F.2d 581 (3d Cir. 1975) ...........

Lucas v. Morton, 358 F. Supp. 900 (W.D. Pa. 1973) ..10,13

Miles v. District of Columbia, 510 F.2d 188 (D.C. Cir.

BY Se us 4 db ove 644s Oh ew aeET Oana ein eee 13

Monterey Coal Company v. Secretary of Labor, Mine

Safety and Health Administration, Docket No.

VINC 78-372, et al. (Jume 19, 1978) ............ 15

National Independent Coal Operators Ass’n v. Kleppe,

ee See Pe CD 606.600 sana deeds cawnceee ss 9

Peter White Coal Mining Corp. v. Seoretery of Labor,

Mine and Health Administration, Docket No.

HOPE 78-371, et al. (June 16, 1978) Shee aeeekeks 15

gn States v. Rumely, 345 U.S. 41 (1952) ........ 13

S. Steel Cor orgeegnies v. Secretary of Labor, Mine

Safety and Health Administration, Docket No.

BARB 78-424 (June 29, 1978) ...........eeeeeee 15

a eS Se

ee ae

eS ee .—

Citations Continued iii

STATUTES: —

ee se MD OEE cis Seine ew eb bide sc veeesie 2

Be Ss NE Uk vacionks a bks Aes ecce bates nan 3

Pub. L. No. 95-164, tit. II, $201, 91 Stat. 1290, 30

U.S.C.A. § 801 (Supp. 1978) ......... ccc ceceeees

ee Ses ED EE oo. ks baw te Bees opnne been te 5

Pub. L. No. 95-164, tit. II, § 201, 91 Stat. 1301, 30

U.S.C.A. §814(d) (Supp. 1978) ...........ce0s 14-15

SO UBC. S$ GEBaIE) CARTE) nc ccccescccccscss 3, 5, 10, 11

ee es ED CE iia duck Ged dad cveccdeasaes +

Pub. L. No. 95-164, tit. II, § 201, 91 Stat. 1305-06, 30

U.S.C.A. §815(d) (Supp. 1978) ........... 3, 4, 10, 15

ee ee ED kw iwevaeanadaccadnaeivuaes 7

Pub. L. No. 95-164, tit. II, § 201, 91 Stat. 1306, 30

U.S.C.A. § 816(a) (Supp. EE Klin wus vhvebekex 7

em PE ee ee 10

OTHER:

S. Rep. No. 181, 95th Cong., lst Sess. 12 (1977), [1977]

U.S. Code Cong. & Ad. News 5193, 5204 .........

ee eoica ts beucweashes caaedawawe 5

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

Carson Fvuet Company, Petitioner,

Vv.

Ceci. D. ANDRUS, SECRETARY OF THE INTERIOR, and

UnitTep Mine Workers oF AMERICA, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

Petitioner, Carbon Fuel Company, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the District of Columbia entered in this

proceeding on May 9, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet re-

ported, is attached hereto in its entirety as Appendix

A. The opinion of the Interior Board of Mine Opera-

tions Appeals of the United States Department of the

Interior, 6 IBMA 20 (1976), is attached hereto in its

entirety as Appendix B. The unreported opinion of

the administrative law judge is attached hereto in its

entirety as Appendix C.

JURISDICTION

The judgment of the Court of Appeals for the Dis-

trict of Columbia was entered on May 9, 1978. A timely

petition for rehearing was denied on May 31, 1978,

and this petition for certiorari was filled within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Is not a mine operator entitled to a review of the

merits of a notice of violation issued by a mine in-

spector alleging a failure to construct facilities prior

to (1) being forced to construct such facilities or (2)

being issued an order closing the mine for an inten-

tional failure to construct the facilities, thereby ex-

posing himself to potential criminal liability ?

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Consti-

tution provides:

‘*No person shall be held to answer for a capi-

tal, or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger ; nor shall any person be subject

for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal

ease to be a witness against himself, nor be de-

prived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.”

OM aes eat eh hs -

(ee Ba Se 0 a EE Pe tee on

rae Oe a

STATUTORY PROVISIONS INVOLVED

The Court of Appeals’ decision was based upon the

provisions of the Federal Coal Mine Health and Safety

Act of 1969 (hereinafter the ‘£1969 Act’), 30 U.S.C.

-§ 801 et seg. (1970). The 1969 Act was recently amended

by the Federal Mine Safety and Health Amendments

Act of 1977 (hereinafter the ‘‘1977 Act’’), Pub. L. No.

95-164, tit. II, § 201, 91 Stat. 1290, 30 U.S.C.A. § 801 et

seq. (Supp. 1978), which transferred jurisdiction of

mine safety and health matters to the Department of

Labor and created the independent Federal Mine Safety

and Health Review Commission to review controversies

arising under the 1977 Act. The provisions of the 1969

Act relevant herein were altered by the 1977 Act to

accommodate these changes, but no other substantive

changes were apparently made. For the convenience of

the Court, the relevant provisions of both the 1969

and 1977 Acts are reprinted below.

Section 105(a)(1) of the 1969 Act, 30 U.S.C. § 815

(a)(1) (1970) [current version at Pub. L. No. 95-164,

tit. II, § 201, 91 Stat. 1305-06, 30 U.S.C.A. §815(d)

(Supp. 1978) ], provided:

‘*(a)(1) An operator issued an order pursuant

to the provisions of section 104 of this title, or any

representative of miners in any mine affected by

such order or by any modification or termination

of such order, may apply to the Secretary [of the

Interior] for review of the order within thirty

days of receipt thereof or within thirty days of

its modification or termination. An operator issued

a notice pursuant to section 104(b) or (i) of this

title, or any representative of miners in any mine

affected by such notice, may, if he believes that the

period of time fixed in such notice for the abate-

ment of the violation is unreasonable, apply to the

Secretary for review of the notice within thirty

days of the receipt thereof. The applicant shall

send a copy of such application to the representa-

tive of miners in the affected mine, or the opera-

tor, as appropriate. Upon receipt of such applica-

tion, the Secretary shall cause such investigation

to be made as he deems appropriate. Such investi-

— shall provide an opportunity for a public

earing, at the request of the operator or the rep-

resentative of miners in such mine, to enable the

operator and the representative of miners in such

mine to present information relating to the issu-

ance and continuance of such order or the modifi-

cation or termination thereof or to the time fixed

in such notice. The filing of an application for

review under this subsection shall not operate as a

stay of any order or notice.”’

Section 105(b) of the 1969 Act, 30 U.S.C. § 815(b)

(1970) [current version at Pub. L. No. 95-164, tit. IT,

§ 201, 91 Stat. 1305-06, 30 U.S.C.A. §815(d) (Supp.

1978) ] provided:

‘*(b) Upon receiving the report of such inves-

tigation, the Secretary shall make findings of fact,

and he shall issue a written decision, incorporating

therein an order vacating, affirming, modifying,

or terminating the order, or the modification or

termination of such order, or the notice, com-

plained of and incorporate his findings therein.”’’

Sections 105(a)(1) and (b) of the 1969 Act were

amended by Section 105(d) of the 1977 Act, Pub. L.

No. 95-164, tit. II, § 201, 91 Stat. 1305-06, 30 U.S.C.A.

§815(d) (Supp. 1978), which provides:

‘*(d) If, within 30 days of receipt thereof, an

operator of a coal or other mine notifies the Sec-

retary [of Labor] that he intends to contest the

issuance or modification of an order issued under

section 104, or citation or a notification of pro-

posed assessment of a penalty issued under sub-

2 La cast hh de SP rate t Cote

section (a) or (b) of this section, or the reason-

ableness of the length of abatement time fixed in a

citation or modification thereof issued under sec-

tion 104, or any miner or representative of miners

notifies the Secretary of an intention to contest the

issuance, modification, or termination of any or-

der issued under section 104, or the reasonableness

of the length of time set for abatement by a cita-

tion or modification thereof issued under section |

104, the Secretary shall immediately advise the

Commission of such notification, and the Commis-

sion shall afford an opportunity for a hearing (in

accordance with section 554 of title 5, United

States Code, but without regard to subsection (a)

(3) of such section), and thereafter shall issue an

order, based on findings of fact, affirming, modify-

ing, or vacating the Secretary’s citation, order, or

proposed penalty, or directing other appropriate

relief. Such order shall become final 30 days after

its issuance. The rules of procedure prescribed by

the Commission shall provide affected miners or

representatives of affected miners an opportunity

to participate as parties to hearings under this

section. The Commission shall take whatever action

is necessary to expedite proceedings for hearing

appeals of orders issued under section 104.”’

STATEMENT OF THE CASE

This action was initiated by Carbon Fuel Company

(hereinafter ‘‘the Company’’) before the Secretary

of the Interior under Section 105 of the 1969 Act

[30 U.S.C. §815]. The Company sought review of a

notice of violation issued under Section 104(b) of the

1969 Act [30 U.S.C. § 814(b)] for an alleged violation

of 30 C.F.R. § 75.1712-2, which provides:

‘*Bathhouses, change rooms, and sanitary toilet

facilities shall be in a location convenient for the

use of the miners. Where such facilities are de-

signed to serve more than one mine, they shall be

centrally located so as to be as convenient for the

use of the miners in all the mines served by such

facilities.’’

The notice of violation alleged that the bathhouse serv-

ing the No. 64-23 Drift Mine’ was inconvenient for

the miners, and gave the Company one month to abate

the alleged violation by building a convenient bath-

house. The Company’s application for review alleged

that the time fixed for abatement was unreasonable,

and that any time for abatement was unreasonable be-

cause the notice of violation was invalid.

The bathhouse in this case was constructed by the

Company in 1967 along Field’s Creek in the area of

Winifrede, Kanawha County, West Virginia. The

Company currently operates approximately six mines

in this area and several other facilities, including a

shop, supply house and cleaning plants. The bathhouse

was designed to serve all of these mines and facilities,

and was constructed at its present location because the

site is centrally located to the Company’s remaining

coal reserves in the area. In addition, the site provides

access to a good water supply, sufficient parking space

and an adequate power supply, is directly across from

the Company’s store which provides additional secur-

ity for the miners’ personal possessions stored in the

‘Production in the No, 6A-23 Drift Mine was discontinued on

July 11, 1978, as a result of current mining economics. Miners are

still employed and working in the mine, and the Company still

operates five other mines in the vicinity which are served by the

same bathhouse. All of these other mines are comparable distances

from the bathhouse, and are therefor subject to the same allegation

that the bathhouse is inconvenient. Accordingly, even if production

is not resumed in the No. 6A-23 Drift Mine in the future, the

validity of the notice of violation remains a crucial issue to the

Company’s continued operations in the area.

bathhouse, and is passed by the miners who utilize the

bathhouse facilities on their way to and from work.

Finally, the portals or openings in this area are short-

lived* because the terrain consists of ridges and val-

leys with splits in the coal seams caused by valleys cut-

ting through the seams, and the central location of the

bathhouse maintains a continuity of bathhouse facili-

ties for the men moving from opening to opening.

The United Mine Workers of America (hereinafter

‘““‘UMWA’’) and the Mining Enforcement and Safety

Administration of the Department of the Interior

(hereinafter ‘‘MESA’’), filed answers in opposition to

the Company’s application for review.

After expedited hearing, an administrative law

judge issued a decision in which he determined the

Company’s bathhouse to be convenient and held that

the notice of violation was invalid (Appendix C).

MESA and the UM VA appealed the administrative

law judge’s decision to the Interior Board of Mine

Operations Appeals (hereinafter the ‘‘Board’’), which

rendered an opinion and decision affirming the admin-

istrative law judge’s decision (Appendix B). The de-

cision of the Board was the final decision of the Secre-

tary of the Interior.

The UMWA sought review of the Board’s decision

in the Court of Appeals for the District of Columbia

pursuant to Section 106(a) of the 1969 Act [30 U.S.C.

§ 816(a) (1970) (current version at Pub. L. 95-164, tit.

II, §201, 91 Stat. 1306, 30 U.S.C.A. §816(a)(1)

(Supp. 1978))]. The Court of Appeals reversed

* During the past 20 years the Company has opened and closed

approximately 37 mines in this area. The length of operation of

these mines has ranged from 13 years to 4 months, with an average

life span of 2 years and 10 months.

the decision of the Board. In so doing, the Court of

Appeals did not discuss the merits of the notice of

violation. Instead, it ruled that a mine operator issued

a notice of violation could obtain review in a Section

105 proceeding only of the time fixed by a mine inspec-

tor for abatement of the notice, and that the Board

was without jurisdiction to determine the validity of

the notice (Appendix A, pp. 2a, 15a). In effect, the

Court of Appeals held that an operator issued a notice

of violation must either (1) correct the alleged viola-

tion prior to a determination of its validity or (2)

disregard the citation and thereby subject himself to

an order closing his mine and potential criminal lia-

bility for an intentional violation of the law.

The Court of Appeals based its decision primarily

on the legislative history of the 1969 Act, placing

greater emphasis on such history than on contrary de-

cisions and statements of this Court, the Courts of Ap-

peals for the Third and Fourth Circuits, the District

Court for the Western District of Pennsylvania and

the Board (Appendix A, pp. Lla-12a, 13a n.50).

Prior to the decision by the Court of Appeals, the

1969 Act was amended by the 1977 Act. Although the

language of the relevant provisions herein was modi-

fied by the amendments, the Court of Appeals found

nothing in the amendments to change its view of how

the 1969 Act would operate and specifically pointed out

that enforcement proceedings under the 1977 Act were

‘“‘natterned on the current Coal Act’’ (Appendix A,

pp. 2a-3a n.3, citing S. Rep. No. 181, 95th Cong., Ist

Sess. 12 (1977), [1977] U.S. Code Cong. & Ad. News

5193, 5204).

SO ee re eR

REASONS FOR GRANTING THE WRIT

1. The Construction Given Section 105 of the 1969 Act by the

Court of Appeals, Which Construction Prohibits Administrative

Review of the Merits of a Notice of Violation, Conflicts With

All Reporied Decisions of This and Other Courts Concerning

the Scope of Review Under Section 105, and Is Clearly Wrong.

In National Independent Coal Operators Ass’n v.

Kleppe, 423 U.S. 388 (1976), this Court stated:

“Under § 105, 30 U.S.C. § 815, an operator may

apply to the Secretary [of the Interior] for review

of the factual basis of any order or notice issued

under § 104, or for review of the amount of time

allowed for abatement of violations.”’

Id. at 391. No clearer statement concerning the scope

of review under Section 105 could be made, particularly

since this Court carefully delineated two types of re-

view for Section 104 notices of violation, ‘‘review of

the factual basis’’ and ‘‘review of the amount of time

allowed for abatement of violations.’’ The Court of

Appeals avoided this definitive statement of the scope

of Section 105 review by characterizing the statement

as a ‘‘casual description’’ (Appendix A, p. 13a n.50).

The resulting conflict in decisions, based upon a pre-

sumption of error on the part of this Court in a so-called

‘‘casual description,’’ warrants review and clarifi-

cation.

Such review is further warranted in light of the fact

that this Court’s construction of Section 105 is unani-

mously followed by all other reported decisions, in-

cluding those of the agency charged with administering

the 1969 Act. The Board was the first to construe Sec-

tion 105 of the 1969 Act in Freeman Coal Corp., 1

IBMA 1 (1970). In Freeman, the Board held that

Section 105 review of the reasonableness of the time

fixed for abatement of a notice of violation required

initial re.iew of the merits of the violation aileged in

the notice. The Board’s holding was based upon the

logical ‘‘proposition that any time for abatement is an

unreasonable time if no violation exists.’’ Jd. at 27.

The Board’s construction of Section 105 has been

specifically approved by the United States Courts of

Appeals for the Third and Fourth Circuits. Lucas

Coal Co. v. Interior Bd. of Mine Operations Appeals,

522 F.2d 581, 583, 587 (3d Cir. 1975) ; Kanawha Coal

Co. v. Andrus, 553 F.2d 361, 363 (4th Cir. 1977).

The United States District Court for the Western

District of Pennsylvania has also considered the scope

of review under Section 105 in Lucas v. Morton, 358

F. Supp. 900 (W.D. Pa. 1973). Lucas involved a con-

stitutional challenge to the enforcement scheme of Sec-

tion 105, and in particular, the fact that Section 105

could be read and applied to prohibit review of the

merits of notices of violation. If so read, an operator

issued an invalid notice of violation would be forced

either to undertake erroneously required abatement

action or accept a withdrawal order closing his mine

for failure to abate, before being entitled to a hearing

on the merits of the notice.’ Plaintiffs in Lucas argued

that such a construction of Section 105 deprived them

of property without due process. The district court

* After abatement of a violation, an operator is entitled to chal-

lenge the fact of violation in a civil penalty proceeding. 1969 Act

§ 109(a)(3), 30 U.S.C. §819(a)(3) (1970) [eurrent version at

Pub. L. No. 95-164, tit. II, § 201, 91 Stat. 1305-06, 30 U.S.C.A.

§ 815(d) (Supp. 1978)]. A withdrawal order issued for failure to

abate a notice of violation is subject to review in a Section 105

proceeding. 30 U.S.C. §815(a)(1) (1970) [eurrent version at

Pub. L. No. 95-164, tit. II, § 201, 91 Stat. 1305-06, 30 U.S.C.A.

§ 815(d) (Supp. 1978) }.

agreed that serious due process problems existed, but

avoided declaring Section 105 unconstitutional by con-

cluding, as was done in the cases discussed supra, that

Section 105 permitted review of the merits of a notice

of violation.

The construction given Section 105 in the aforemen-

tioned decisions is clearly supported by the language

of the 1969 Act, which provides in pertinent part:

“*(a)(1) An operator issued a notice pursuant

to Section 104(b) ... may, if he believes that the

period of time fixed in such notice for the abate-

ment of the violation is unreasonable, apply to the

Secretary for review of the notice within thirty

days of the receipt thereof... .”’

Plainly read, this language permits an operator to seek

review of a Section 104(b) notice of violation ‘‘if he

believes that the period of time fixed in such notice for

the abatement of the violation is unreasonable.’’ The

language does not limit the rationale underlying a mine

operator’s belief of unreasonableness, nor does it re-

strict the Secretary’s ‘‘review of the notice.’’ Indeed,

Section 105(b) of the 1969 Act specifically authorizes

the ‘‘vacating, affirming, modifying or terminating”’ of

notices of violation by the Secretary after review there-

of. If anything, this language makes it clear that Section

105 contemplates review of the merits of a Section

104(b) notice because such ‘‘vacating” or ‘‘terminat-

ing” can occur only after a finding by the Secretary

that the violation alleged in the notice did not exist.

2. The Construction Given Section 105 of the 1969 Act by the

Court of Appeals, Which Construction Prohibits Administrative

Review of the Merits of a Notice of Violation, Contravenes the

Due Process Clause of the Fifth Amendment to the United

States Constitution.

The Court of Appeals decision that Section 105 of

the 1969 Act prohibits review of the merits of a notice

of violation permits an inspector to enter a mine, issue

a clearly invalid notice of violation (for example, al-

leging that all of the mining equipment is in violation

of the law because it is painted yellow instead of

orange) and require that the alleged violation be cor-

rected (that is, that such equipment be painted orange)

within a specified time. The mine operator, because he

cannot seek review of the validity of the notice in a

Section 105 proceeding, is forced either to undertake

unnecessary corrective action or to await transforma-

tion of the notice into an order requiring him to with-

draw all men from the mine, which forces discontinu-

ance of mining operations. Either course of action in-

volves substantial expense, numerous wasted man

hours, and loss of coal production vital to the nation;

yet one of the alternatives must be elected, despite the

obvious invalidity of the notice of violation.

While this example may be carrying the effect of

the Court of Appeals decision to its extreme, it is

nevertheless entirely possible under its construction of

Section 105. Indeed, the merits of this case produce no

less absurd a result. In well reasoned opinions, an ad-

ministrative law judge and the Board held that the

Company’s centrally located bathhouse does not violate

the health and safety standard cited in the notice of

violation. Yet, because the Court of Appeals ruled that

such decisions improperly considered the merits of the

alleged violation, the Company must now comply with

te Ore

the “invalid” notice of violation by building an un-

necessary bathhouse or await transformation of the

notice into an order closing its mine for an intentional

failure to construct such a bathhouse, with the poten-

tial for criminal sanctions.

The due process clause of the Fifth Amendment to

the United States Constitution “requires an oppor-

tunity for a hearing before a deprivation of property

takes effect.’’ Fuentes v. Shevin, 407 U.S. 67, 88, re-

hearing denied, 409 U.S. 902 (1972). Applying this

standard in Miles v. District of Columbia, 510 F.2d 188,

192 (D.C. Cir. 1975), the Court of Appeals of the Dis-

trict of Columbia held that a building that is alleged

to be a menace to public health and safety may not be

destroyed before the owner is given ‘‘sufficient notice,

a hearing and ample opportunity to demolish the

building himself or to do what suffices to make it safe

or healthy; such a procedure is the essence of the gov-

ernmental responsibility to accord due process of law.”’

No less protection is due a mine operator issued a no-

tice alleging a violation of a mandatory health or safety

standard, especially since such notice is based upon the

unreviewed opinion of a sole mine inspector. The Court

of Appeals’ construction of Section 105, prohibiting

review of the merits of such a notice until after abate-

ment of the condition alleged to create a violation or

the issuance of a withdrawal order, denies such pro-

tection. See Lucas v. Morton, supra.

Where a statute is ambiguous and permits alterna-

tive constructions, sound rules of statutory construc-

tion require an interpretation which will avoid a dec-

laration of unconstitutionality. United States v.

Rumely, 345 U.S. 41, 45 (1952). Accordingly, Section

105 must be interpreted to permit review of the merits

of notices of violation. The alternative is a declara-

tion that the statute, insofar as it requires a mine

operator to abate a notice of violation or suffer a with-

drawal order for failure to abate before becoming

entitled to a hearing on the merits of a notice of vio-

lation, is unconstitutional.

3. This Case Involves Fundamenal Constitutional Issues and

Significant Practical Considerations Bearing Upon the Enforce-

ment of the 1969 and 1977 Acts, Which Issues and Consider-

ations Affect the Entire Coal Industry.

The Court of Appeals’ interpretation of Section 105

renders unconstitutional the enforcement scheme of

the 1969 Act. Although not specifically addressed in

the Court of Appeals’ decision, the due process issue

must be considered. Unless considered, the Company

will be required to correct a violation already deter-

mined to be invalid or await transformation of the

notice of violation into an order closing the mine for

an intentional failure to abate.

The importance of the Court of Appeals’ ruling is

not limited to this case or to the Company. The Court

of Appeals specifically acknowledged the similarity

between the review provisions of the 1969 Act and

those of the 1977 Act,‘ indicating its decision would

be no different if the 1977 Act’s review provisions

were involved (Appendix A, pp. 2a-3a n.3). Several ad-

ministrative law judges of the Federal Mine Safety

and Health Review Commission have since followed

the Court of Appeals’ decision and held that the

validity of notices of violation issued under Section

104(d) of the 1977 Act [Pub.-L. No. 95-164, tit. IT,

*The pertinent review provisions are reprinted in the ‘‘Statu-

tory Provisions Involved’’ section of this petition, supra at 3-5.

§ 201, 91 Stat. 1301, 30 U.S.C.A. § 814(d)] may not

be tested in review proceedings under Section 105(d)

of the 1977 Act [Pub. L. No. 95-164, tit. II, § 201, 91

Stat. 1305-06, 30 U.S.C.A. §815(d)]. Itmann Coal

Company v. Secretary of Labor, Mine Safety and

Health Administration, Docket No. HOPE 78-356

(May 26, 1978); Peter White Coal Mining Corp. v.

Secretary of Labor, Mine Safety and Health Admin-

istration, Docket No. HOPE 78-371, et al. (June 16,

1978) ; Monterey Coal Company v. Secretary of Labor,

Mine Safety and Health Administration, Docket No.

VINC 78-372, et al. (June 19, 1978); U. S. Steel

Corporation v. Secretary of Labor, Mine Safety and

Health Administration, Docket No. BARB 78-424

(June 29, 1978).

The Court of Appeals’ decision limiting the scope

of review under Section 105 of the 1969 Act has been

and will continue to be used as a basis for limiting

review under its counterpart in the 1977 Act. The

enforcement scheme in the 1977 Act is a matter of

great importance to the entire industry. Final resolu-

tion of the issue by this Court will avoid protracted

disputes, facilitate enforcement of the 1977 Act, and

permit continuation of the safe and efficient produc-

tion of coal needed to fulfill the goals of the nation’s

energy program.

CONCLUSION

This case involves fundamental constitutional issues

and significant practical considerations which affect

the entire coal industry. The decision oi the Court of

Appeals conflicts with all reported decisions of this

Court and other courts concerning the scope of review

under Section 105 of the 1969 Act. The Court of Ap-

peals’ decision construing Section 105 of the 1969 Act

contravenes the due process clause of the Fifth Amend-

ment to the United States Constitution.

For the reasons expressed hereinabove, the Com-

pany respectfully states that a writ of certiorari

should issue to review the judgment and opinion of

the Court of Appeals for the District of Columbia.

Respectfully submitted,

CHARLES Q. GAGE

C, LyncH CuristTIAN, III

JACKSON, Ketty, Hott & O’FaRRELL

P. O. Box 553

Charleston, West Virginia 25322

atl gegen A Pp Pp E N D I X

CARBON FUEL COMPANY '

Suite 1300; One Valley Square

Charleston, West Virginia 25301 |

Counsel for Petitioner,

Carbon Fuel Company

R. G. KeLby

August 7, 1978

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order thai corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1208

UNITED MINE WORKERS OF AMERICA, PETITIONER

CECIL D. ANDRUS, Secretary of the Interior, RESPONDENT

CARBON FUEL Co., INTERVENOR

Petition for Review of an Order of the

Board of Mine Operation Appeals of the

Department of Interior

Argued March 17, 1977 | Judgment, entered |

this date

Decided May 9, 1978 : « |

Steven B. Jacobson, with whom Harrison Combs was

on the brief, for petitioner.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

Edwin E. Huddleson, III, Attorney, Department of

Justice, with whom Rex EH. Lee, Assistant Attorney Gen-

eral, and William Kanter, Attorney, Department of Jus-

tice, were on the brief, for respondent.

Charles Q. Gage for intervenor.

Before MCGOWAN, ROBINSON and WILKEY, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

ROBINSON, Circuit Judge: Once again* we are con-

fronted by a controversy generated by ambiguity in the

Federal Coal Mine Health and Safety Act of 1969.* The

issue on this occasion is whether a mine operator served

with notice of violation of a health standard not posing

imminent danger could obtain administrative review of

the charge on the merits prior to issuance of an order

commanding withdrawal of his miners from the af-

fected area. We answer that question in the negative.

Our decision is governed by the terms of the 1969 Act

notwithstanding its displacement by new legislation in

1977,° and resultantly our opinion speaks largely to the

past.

1 See, e.g., Association of Bituminous Contractors, Inc. V.

Andrus, No. 75-1931 (D.C. Cir. Feb. 22, 1978); UMW v.

Kleppe, 174 U.S.App.D.C. 328, 582 F.2d 1403, cert. denied,

429 U.S. 858, 97 S.Ct. 157, 50 L.Ed.2d 185 (1976); Phillips

v. Interim Bd. of Mine Operations Appeals, 163 U.S.App.D.C.

104, 500 F.2d 772, (1974), cert. denied, 420 U.S. 988, 95 S.Ct.

1149, 43 L.Ed.2d 415 (1975); National Independent Coal

Operators Ass’n V. Morton, 161 U.S.App.D.C. 68, 494 F.2d

yk ieee aff'd, 423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580

men L. No. 91-1078, 83 Stat. 742, 30 U.S.C. §§ 801 et seq.

* Late last year Congress passed the Federa! Mine Safety

and Health Armendments Act of 1977, Pub. L. No. 95-164, 91

Stat. 1290, which supersedes both the Federal Coal Mine

Health and Safety Act of 1969 and the Federal Metal and

Nonmetallic Mine Safety Act of 1966, Pub. L. No. 89-577, 80

Stat. 772. By then this case had already been submitted to us

for decision, and only less than a month ago did the new legis-

lation become effective. Federal Mine Safety and Health

Amendments Act of 1977, Pub. L. No. 95-164, tit. III, § 307,

91 Stat. 1822. None of the parties contend, nor does anything

uncovered by our independent research suggest, that Congress

intended any application whatsoever of the 1977 Act to ad-

ministrative proceedings long since concluded under its 1969

predecessor, as is the situation here. See id. § 301(c). Com-

pare Swinton v. J. Frank Kelly, Inc., 180 U.S.App.D.C. 216,

218-219, 554 F.2d 1075, 1077-1078, cert. denied, 429 U.S. 820,

97 S.Ct. 67, 50 L.Ed.2d 81 (1976) with de Rodulfa v. United

States, 149 U.S.App.D.C. 154, 161, 164-167, 461 F.2d 1240,

1247, 1250-1253, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34

L.Ed. 2d 220 (1972). See also United States v. St. Louis, S. F.

& T. Ry., 270 U.S. 1, 8, 46 S.Ct. 182, 183, 70 L.Ed. 435, 437

(1926); United States Fidelity & Guar. Co. v. United States

ex rel. Struthers Wells Co., 209 U.S. 306, 315-317, 28 S.Ct. 537,

540, 52 L.Ed. 804, 807-808 (1908). And although we have no

call to construe the 1977 Act itself, our investigation uncovered

nothing in its language or legislative history that modifies our

view of how Congress contemplated that the 1969 Act would

operate on the matter here in issue. On the contrary, enforce-

ment proceedings under the new Act generally are “patterned

on the current Coal Act,” S. Rep. No. 181, 95th Cong., Ist

Sess. 12 (1977), [1977] U.S. Code Cong. & Ad. News 5193,

5204, notwithstanding that the 1977 counterparts of the rele-

vant provisions of the 1969 Act are cast in substantially

modified language. See Federal Mine Safety and Health

Amendments Act of 1977, Pub. L. No. 95-164, tit. II, § 201,

91 Stat. 1800, 1305-1306 (amending Federal Coal Mine Health

and Safety Act of 1969, §$ 104(a), (b) & 105(d)).

Since the Secretary of the Interior, originally the respond-

ent herein, had delegated his adjudicative responsibilities

under the 1969 Act to the Board of Mine Operations Appeals,

43 C.F.R. § 4.500(a) (1976), the decision of the Board is

properly the subject of this review. The 1977 Act, however,

transferred administrative review to the Federal Mine Safety

and Health Review Commission, see Federal Mine Safety and

Health Amendments Act of 1977, Pub. L. No. 95-164, tit. II,

§ 201, 91 Stat. 1805-1306 (amending Federal Coal Mine Health

and Safety Act of 1969, § 105(d), 30 U.S.C. § 815(d) (1970) );

Pursuant to the 1969 Act,‘ the Secretary of the In-

terior promulgated mandatory health and safety stand-

ards designed for the protection of coal miners.’ To

ensure compliance with those standards, the Mining En-

forcement and Safety Administration (MESA), the au-

thorized representative of the Secretary, made frequent

inspections of mines.* If a MESA inspector determined

that there was imminent danger from a breach of the

standards, he issued a withdrawal order requiring re-

moval of all miners from the imperiled area until the

hazard disappeared.’ If, on the other hand, the inspector

found disobedience of a standard but no immediate threat

to health or safety therefrom, he issued a violation notice

fixing a reasonable time for its abatement.* That period

id. tit. III, § 8301(c) (1)-(2), 91 Stat. 1818. The Secretary of

the Interior remains as respondent because the new law pro-

vides that it “shall not affect suits commenced prior to [its

effective date] and in all such suits proceedings shall be had,

appeals taken, and judgments rendered, in the same manner

and effect as if this section had not been enacted... .” Id.

tit. III, § 390(c) (4), 91 Stat. 1819. The only exception is for

suits involving investigative functions transferred to the Sec-

retary of Labor, in which case that Secretary is to be substi-

tuted as a party. Jd. Our suit, however, involves administra-

tive review functions transferred to the Federal Mine Safety

and Health Review Commission, supra, and we accordingly

deny the joint motion of the Secretary of the Interior and the

Secretary of Labor to add the Secretary of Labor as a re-

spondent. See also note 58 infra.

* Federal Coal Mine Health and Safety Act of 1969, § 101,

30 U.S.C. § 811 (1970).

* 30 C.F.R. §§ 70.100 et seg. (1976).

* Federal Coal Mine Health and Safety Act of 1969, § 108, 30

U.S.C. § 813 (1970).

"Id. § 104(a), 30 U.S.C. § 814(a) (1970).

* Id. § 104(b), 30 U.S.C. § 814(b) (1970).

could be extended, but if it was not and if the violation

persisted, a withdrawal order then followed.’ Such an

order could also emit, even without allowance for an

abatement period, when there was an “unwarrantable”

but not imminently hazardous failure to comply with the

standards.”

A mine operator aggrieved by either a notice or an

order could apply for administrative review." Any

necessary investigation was made, an opportunity for a

hearing was provided,” and review of the administra-

tive decision was available in the courts of appeals."

The Act specified civil penalties for noncompliance with

its provisions or with health or safety standards formu-

lated thereunder, as to which the operator had the

right to a trial de novo in a district court.’ In the

instance of a withdrawal order, the operator could ob-

tain both administrative and judicial review of an in-

spector’s conclusion that an imminently dangerous con-

* Id.

° Id. § 104(c), 30 U.S.C. § 814(c) (1970). The withdrawal

order could issue only after the operator had been given two

violation notices within a 90-day period and a finding had been

made for each violation that it was caused by unwarrantable

failure to comply with the Act.

"Id. §105(a), 30 U.S.C. § 815(a) (1970), quoted in text

at note 27 infra.

8 Td.

"Id. §106(a), 30 U.S.C. § 816(a) (1970).

‘* Id. § 109, 30 U.S.C. § 819 (1970).

* Id. § 109(a) (4), 830 U.S.C. § 819(a) (4) (1970). The new

Act may not be so generous. See S. Rep. No. 181, supra note

3, at 46, [1977] U.S. Code Cong. & Ad. News at 5237. Under

the 1969 Act, issues of fact that were or could have been

litigated earlier in review proceedings before a court of ap-

peals were not determinable de novo in the district court.

. 6a

dition existed.*° The pivotal question on this appeal is

whether the operator could also litigate the facts prompt-

ing a notice of violation or only the question of the

reasonableness of the time allowed for its abatement.

Carbon Fuel Company, the intervenor here, operates

several short-lived mines in the Appalachian region of

West Virginia, including one known as No. 6A, 23 Drift

Mine.” That facility is three miles distant from Carbon’s

central bathhouse, which serves a total of six mines in the

area.'"* After complaints by miners that, in contraven-

tion of the Secretary’s regulations, the bathhouse was

inconveniently located, a MESA official investigated and

issued a notice of violation giving Carbon 30 days to

abate.** Carbon resorted to administrative review, claim-

ing that the time allotted for abatement was unreason-

able and “that any period of time set for the abatement

of such invalid Notice would be unreasonable.” *

An administrative law judge ruled that he had juris-

diction not only to extend the abatement period but also

to vacate the violation notice on the merits, because, in

his words, “ ‘any time for abatement is an unreasonable

time if no violation exists.’” ** He then rejected MESA’s

** Federal Coal Mine Health and Safety Act of 1969,

§§ 105(a), 106, 30 U.S.C. §§ 815(a), 816 (1970).

** Carbon Fuel Co., No. HOPE 75-800 (administrative law

judge July 22, 1975), at 4, Joint Appendix (J. App.) 229.

8 Td.

* Td. at 4-5, J. App. 229-230.

*° Application for Review and Motion to Expedite Hearing

and Decision at 2, J. App. 6.

** Carbon Fuel Co., supra note 17, at 7, J. App. 232, quoting

Freeman Coal Mining Corp., 1 I.B.M.A. 1, 27 (1970).

contention that the bathhouse was not conveniently situ-

ated for use by those working in No. 6A, 23 Drift Mine.”

The Board of Mine Operations Appeals affirmed the

initial determination on location without any reference

to the question of its jurisdiction to dissolve the notice,

as opposed to authority merely to pass upon the reason-

sonableness of the time allowed for correction of the

alleged violation.” Petitioner, United Mine Workers of

America, then came to this court for further review,

attacking both jurisdiction and the decision on the

merits.**

III

The Federal Coal Mine Health and Safety Act of

1969 set forth in Section 105 the specifications govern-

ing administrative review of withdrawal orders and

notices of violations.** Those provisions drew some rather

large distinctions in scope between the two. The Sec-

retary was empowered to grant temporary relief from

a withdrawal order but not from the consequences of

disobeying a violation notice.” In relevant part Section

105 (a) (1) also provided:

An operator issued an order . . . or any representa-

tive of miners in any mine affected by such order

or by any modification or termination of such order,

may apply to the Secretary for review of the order.

. . . An operator issued a notice . . . or any repre-

= Id. at 7-10, J. App. 232-235.

** Carbon Fuel Co., 6 I.B.M.A. 20 (1976).

** Because of our disposition of the jurisdictional issue, we

do not reach petitioner’s contention concerning the existence

of a violation.

** Federal Coal Mine Health and Safety Act of 1969, § 105,

30 U.S.C. § 815 (1970).

°° Td.

sentative of miners in any mine affected by such

notice, may, if he believes that the period of time

fixed in such notice for abatement of the violation

is unreasonable, apply to the Secretary for review

of the notice. .. . [A]n opportunity for a public

hearing [shall be provided] at the request of the

operator or the representative of miners in such

mine, to enable the operator and the representative

of miners in such mine to present information re-

lating to the issuance and continuance of such order

or the modification or termination thereof or to the

time fixed in such notice."

If this were the sole statutory directive concerning

administrative review of orders and notices, we would

be inclined—simply on the basis of the plain language

of this section—to accept petitioner’s contention that the

only permissible challenge to a notice was one calling

into question the reasonableness of the time for abate-

ment. Section 105(a)(1) clearly differentiated with-

drawal orders and violation notices: one affected by an

order in any way could seek “review of the order,” *

while one aggrieved by a violation notice could apply

for review only “if he believe{d] that the period of time

fixed in the notice for abatement of the violation [was]

unreasonable.” * And while in the case of an order a

litigant could “present information relating to the is-

suance and continuance of such order or the modifica-

tion or termination thereof,” * in the instance of a

notice his offering was limited “to the time fixed in such

notice.” *

** Id. §105(a) (1), 30 U.S.C. § 815(a) (1) (1970).

8 Td.

= Id.

%° Td.

" Td.

Section 105, however, continued in subsection (b) in

a somewhat ambiguous fashion:

Upon receiving the report of . . . investigation, the

Secretary shall make findings of fact, and he shall

issue a written decision, incorporating therein an

order vacating, affirming, modifying, or terminating

the order, or the modification or termination of such

order, or the notice, complained of and incorporate

his findings therein.™

That, considered alone, was susceptible to a reading

empowering the Secretary to “terminat[e]” a “notice,”

an event which could logically occur only if the notice

were reviewed on the merits. Statutory provisions are

to be construed, however, not in isolation but together

with other related provisions.** So treated, Section 105

(b) could much more readily be interpreted as authoriz-

ing only such relief from orders and notices as was

consistent with the highly specific directions in Section

105(a)(1) as to the issues respectively raisable upon

challenges to the one or the other.

Since perhaps we cannot with complete safety rest

the statutory limits of administrative review upon the

statutory text alone, we turn to the legislative history

for guidance to the congressional intent,** and find that

* Id. § 105(b), 30 U.S.C. § 815(b) (1970).

** See Philbrook v. Glodgett, 421 U.S. 707, 718, 95 S.Ct. 1893,

1898, 44 L.Ed.2d 525, 532-533 (1975), citing United States v.

Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009,

1013 (1849); Kokoszka v. Belford, 417 U.S. 642, 650, 95 S.Ct.

2431, 2436, 41 L.Ed.2d 374, 381 (1974), citing Brown Vv.

Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595, 599

(1857).

* See, e.g., First Nat'l Bank v. Walker Bank & Trust Co.,

3885 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 348, 349

10a

the history is fortunately unambiguous. The precursor

of the 1969 statute, the Federal Coal Mine Safety Act

of 1952,*° while providing for administrative and ju-

dicial review of withdrawal orders, furnished no vehicle

whatsoever for review of violation notices.** Similarly,

in the legislative process leading to the 1969 Act, neither

the bill initially passed by the House*’ nor that first ap-

proved by the Senate authorized review of notices of

violation.** When, however, those bills—which in other

respects differed—left the hands of conferees on behalf

of the two chambers, the text of the review provisions

of Section 105 emerged. And the Conference Report

delineates the scope of jurisdiction afforded by the 1969

review mechanism: it “provide[d] in Section 105(a)

for review solely of the reasonableness of the time fixed

in [the] notice.” *° The legislative history thus evidences

plainly enough a congressional purpose to open up to

(1966); United Shoe Workers v. Bedell, 165 U.S.App.

D.C. 118, 118, 506 F.2d 174, 179 (1974); Portland Cement

Ass’n V. Ruckelshaus, 158 U.S.App.D.C. 308, 316, 486 F.2d

375, 383, cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d

226 (1973); National Petroleum Refiners Ass’n v. FTC, 157

U.S.App.D.C. 83, 100, 482 F.2d 672, 689, cert. denied, 415 U.S.

951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1978).

35 Act of July 16, 1952, ch. 877, 66 Stat. 692.

* Id., 66 Stat. 699-702.

** S. 2917, reprinted in Senate Comm. on Labor and Public

Welfare, 94th Cong., Ist Sess., Legislative History of the

Federal Coal Mine and Safety Act of 1969, at 1402-1438

(Comm. Print 1975) (hereinafter cited as “Legislative His-

tory”).

88S. 2917, Legislative History 782-912.

°° S. 2917, Legislative History 1445-1506.

“ H.R. Rep. No. 91-761, 90th Cong., 2d Sess. 69 (1969),

Legislative History 1513 (statement of House managers)

(emphasis supplied).

lla

review only a single narrow question regarding violation

notices.

If any further indicium of that intent were necessary,

it would be found in the section-by-section analysis of

the Conference bill, which Senator Williams—one of the

sponsors of the Senate bill and a Conference Committee

manager—introduced into the Congressiona! Record dur-

ing the post-conference Senate debates. Addressing Sec-

tion 105, the analysis states:

Subsections (a), (b), and (c) establish a proce-

dure for reviewing administratively withdrawal or-

ders issued by an inspector, modifications or termi-

nations of such orders by an inspector, and the rea-

sonableness of the time limits in notices...

This passage not only confirms our understanding of the

Conference Report’s use of the word “solely,” ** but like

its progenitors it makes no reference to the possibility

that a notice could be vacated or otherwise terminated

on the merits.

Against this array of historical data, the Secretary

can point merely to an administrative interpretation by

the Board of Mine Operations Appeals to the effect that

the notice-review provisions authorize some measure of

consideration of violation notices on the merits. Several

years ago, in Freeman Coal Mining Corporation,“ the

Board, without any discernible analysis of the problem,

said:

We accept, at least for purposes of the issues

presently before us, the proposition that any time

“ Legislative History 1603 (emphasis supplied).

*2 See text supra at note 40.

«8 Supra note 21.

12a

for abatement is an unreasonable time if no violation

exists.“

While the Secretary correctly notes that courts normally

accord great weight to administrative construction of

the statute administered,** such interpretations forfeit

their entitlement to deference when they plainly conflict

“with other indicia of the proper interpretation of” the

statute.*° As we have seen, the words of Section 105

(a),"’ viewed in the strong light of the straightforward

legislative history,** argue irresistibly the other way.

Moreover, were we to read the review provisions as

the Secretary urges, we would effectively obliterate the

distinction which Section 105(a)(1) plainly made be-

tween administrative review of withdrawal orders and

of violation notices.** It would have made no sense at

** Freeman Coal Mining Corp., supra note 21, 1 I.B.M.A.

at 27. That proposition was accepted “for purposes of the

issues presently before” the Board. Jd. The Board reasoned

only that “the Act itself nowhere expressly precludes review

of the fact of violation,” id. at 28, yet the proper question

is not how much jurisdiction was precluded but how much was

conferred.

** See, e.g., Griggs V. Duke Power Co., 401 U.S. 424, 483-434,

91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165 (1971); United

States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27

L.Ed.2d 9, 12-13 (1970); Udall v. Tallman, 380 U.S. 1, 4, 85

S.Ct. 792, 795, 18 L.Ed.2d 616, 619 (1965).

** General Elec. Co. Vv. Gilbert, 429 U.S. 125, 148, 97 S.Ct.

401, 411-412, 50 L.Ed.2d 348, 858 (1976); accord, Laborers’

Local 1057 v. NLRB, —— U.S.App.D.C. ——, ——, 567 F.2d

1006, 1015 (1977) (“[w]hile we respect an administrative

agency’s interpretation of a statute that it is entrusted with

enforcing, in the end the paramount deference must be ex-

tended to Congress itself’) (footnote omitted).

** See text at notes 25-27 supra.

** See text at notes 34-42 supra.

*° See text at notes 27-31 supra.

138

all for Congress to have separately and differently ar-

ticulated the scope of review of orders and notices if they

were to be precisely the same. Particularly against the

backdrop of the legislative history, we cannot assume that

Congress intended its distinction to have no meaning.”

To be sure, the interpretation we ascribe to Section

105(a) could have worked some hardship on a mine

operator who received a notice of violation but believed

that he was in full conformity with the Act. He then

would have been compelled either to abate the condition

or to await transformation of the notice to a withdrawal

50 See American Horse Protection Ass’n V. Department of

Interior, 179 U.S.App.D.C. 246, 258, 551 F.2d 433, 440 (1977).

The Secretary also contends that the Supreme Court in

National Independent Coal Operators Ass’n V. Kleppe, supra

note 1, ruled that an operator could obtain administrative re-

view on the merits of a violation notice. All the Supreme Court

said was that “[u]nder § 105, 30 U.S.C. 815, an operator may

apply to the Secretary for review of the factual basis of any

order or notice issued under § 104, or for review of the amount

of time allowed for abatement of violations.” 423 U.S. at 391,

96 S.Ct. at 811, 46 L.Ed.2d at 584. The Court in that case

was not specifically considering the breadth of review allowed.

We are unwilling to assume that this casual description was

intended as a definitive interpretation of the scope of per-

missible review.

The Secretary also points to two decisions, Lucas v. Morton,

358 F.Supp. 900 (W.D. Pa. 1973) (3-judge court), and Lucas

Coal Co. v. Interior Bd. of Mine Operation Appeals, 522 F.2d

581 (8d Cir. 1975), and argues that they conflict with the con-

clusion we reach. To the extent that those courts differ in their

interpretation of the review provisions, we must respectfully

disagree. See also Kanawha Coal Co. v. Andrus, 553 F.2d 361,

363 (4th Cir. 1977) (noting, without criticism, “the position

of the Secretary that” administrative review extends to

“whether a violation existed . . . and whether the time for

abatement fixed by that notice was reasonable’).

l4a

order by a failure to abate, at which point he would

have finally been entitled to challenge the existence of

the violation.*’ On the other hand, a contrary construc-

tion would simply have transferred the hardship to the

miners, and with a much more emphatic impact. Since a

withdrawal order automatically removed miners from

the area of the alleged health and safety violation, even

prolonged review at that time of the order on the merits

did not leave them at peril. When, however, only a

notice had issued, review of the fact of violation would

have subjected the miners to continuing their labors—

perhaps for a substantial period—under conditions which,

though not thought to be imminently dangerous,” were

nonetheless believed to be unwholesome and in contraven-

tion of the Act’s health and safety standards.“

In any event, the decision where the hardship should

fall was one for Congress to make, and, unconstitu-

tionality aside, neither we nor the Secretary has the

prerogative to alter it. Congress made its choice clear

when, in staking out goals for the 1969 Act, it solemnly

declared that “(t]he first priority and concern of all

in the coal mining industry must be the health and

*t See Federal Coal Mine Health and Safety Act of 1969,

§ 105(a), 30 U.S.C. §815(a) (1970).

*? See id. § 104(b), 80 U.S.C. § 814(b) (1970).

* See also S. Rep. No. 181, supra note 3, at 30, [1977] U.S.

Code Cong. & Ad. News at 5222 (“‘[t]he Committee believes

that rapid abatement of violations is essential for the protec-

tion of miners’).

** See, e.g., Barnes V. Costle, ——- U.S.App.D.C. ——, ——

n.81, 561 F.2d 988, 994 n.81 (1977).

" Because no issue has been raised concerning the consti-

tutionality of the statutory scheme, we do not pass on it here.

But see Lucas v. Morton, supra note 50.

lda

safety of its most precious resource—the miner. .. .”

That priority was reflected in the Act’s review pro-

visions, which did not tolerate either temporary relief

from notices of violation or, as we now hold, review

on the merits of the violation charged while miners

continued to work in the affected area. Only when the

miners had been removed, or after the violation had

been abated and civil-penalty proceedings instituted, did

the operator become entitled to challenge the existence

of conditions allegedly trespassing upon the Act. That,

we think, was Congress’ decree, and we must respect it.

The order of the Board of Mine Operations Appeals

is reversed and the case is remanded * for further pro-

ceedings consistent with this opinion.

Reversed and remanded.

86 Federal Coal Mine Health and Safety Act of 1969, §1,

30 U.S.C. § 801(a) (1970). See also UMW Vv. Kleppe, supra

note 1, 174 U.S.App.D.C. at 380-881, 582 F.2d at 1405-1406.

51 See note 26 supra and accompanying text.

88 As we noted earlier, note 3 supra, the Board of Mine

Operations Appeals no longer exists and the Secretary of

the Interior no longer is responsible for administrative re-

view in this field, but pursuant to the new law we retained

the Secretary as respondent. Although we are thus tech-

nically remanding to the Secretary, under the 1977 Actfurther

proceedings to comply with this opinion will automatically

take place before the Federal Mine Safety and Health Review

Commission. See Federal Mine Safety and Health Amendments

Act of 1977, Pub. L. No. 95-164, tit. III, § 301(c) (3), 91 Stat.

1318.

l6a

APPENDIX B

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

INTERIOR BOARD OF MINE OPERATIONS APPEALS

4015 wILsON BOULEVARD

ARLINGTON, VIRGINIA 22203

Carson Fue, Company

IBMA 76-24 Decided February 20, 1976

Appeal by the Mining Enforcement and Safety Admin-

istration and the United Mine Workers of America from a

decision by Administrative Law Judge Forrest E. Stewart,

dated July 22, 1975, granting an Application for Review

(Docket No. HOPE 75-800) and dismissing a Petition for

Modification (Docket No. M 75-131) under the Federal

Coal Mine Health and Safety Act of 1969.

Affirmed.

Federal Coal Mine Health and Safety Act of 1969:

Mandatory Health Standards: Bathhouse and Change-

room Facilities

A violation of 30 CFR 75.1712-2, requiring that bath-

ing and change-room facilities be provided in a central

location convenient to all the miners where such fa-

cilities serve the miners of more than one mine, is

not proved when the evidence shows that the average

distance from the six mines served is 2.1 miles and

the portal of the mine farthest from such facilities is

only 1.1 miles farther than the portal of the nearest

mine.

AppeaRANCES: Thomas A. Mascolino, Assistant Solicitor,

Robert A. Cohen, Trial Attorney, for appellant Mining

inforcement and Safety Administration; Steven B. Ja-

cobson, Esq., H. John Taylor, Esq., for appellant United

17a

Mine Workers of America; Charles Q. Gage, Esq., for

~ appellee Carbon Fuel Company.

OprInion BY CHIEF ADMINISTRATIVE J UDGE DoANE

Background

On May 22, 1975, a federal coal mine inspector issued

Notice No. 3 SAD at Carbon Fuel Company’s (Carbon)

No. 6A, 23 Drift Mine at Winifrede, West Virginia. The

notice, issued pursuant to section 104(b) of the Federal

Coal Mine Health and Safety Act of 1969 (Act),' cited

the following condition.

The bathing facilities and change rooms provided

for the use of the miners at this mine, was not con-

veniently located in that the mine is located a distance

of 4 miles from the present facilities.

The parties subsequently agreed that the 4-mile figure in

the notice was in error and that the correct distance be-

tween the bathhouse and the 6A, 23 portal is actually 3

miles.? The standard alleged to be violated, 30 CFR

75.1712-2, provides:

Bathhouses, change rooms, and sanitary toilet fa-

cilities shall be in a location convenient for the use of

the miners. Where such facilities are designed to

Serve more than one mine, they shall be centrally

located so as to be as convenient for the use of the

miners in all the mines served by such facilities.

On June 2, 1975, Carbon filed an Application for Review

of the above notice and a motion for expedited hearing. It

contended that the time set for abatement (1 month) was

unreasonable, alleged that the bathhouse facilities serving

+30 U.S.C. §§ 801-960 (1970).

* Tr. 10, Applicant Exh. 1.

18a

its 6A, 23 Drift Mine were centrally located, and that the

notice was therefore invalid. Carbon also filed a motion for

extension of time for abatement and a Petition for Modi-

fication of 30 CFR 75.1712-2.*

On June 9 and 10, 1975, an expedited hearing was held

in Charleston, West Virginia. The following evidence was

adduced at the hearing. Carbon’s 6A, 23 Drift Mine was

first opened in April 1974. It employs 41 men on two pro-

duction shifts and produces approximately 300 tons of

coal in a 24-hour period. The estimated life of the mine is

7 years. The 6A, 23 Drift Mine is one of six mines in

Carbon’s Winifrede Division. All six of the mines are

served by the single bathhouse cited in the notice of viola-

tion. The table below lists the distance in miles from each

mine to the bathhouse :*

2 BAP errrrrerrerrri es 3.0

BE. Dg a ck ccdnccaveskesaees 1.9

Si. cL aGy o hese ena eenekinchhns 2.2

SE i LE a ee Cee dé peas 2.1

EE errr rr ere 2.2

| Se 8 | BPS eTETETT TTT TTT Tee 2.2

The road from the bathhouse to the portal of the 6A, 23

Drift Mine consists of 1 mile of hard surface and 2 miles

of dirt road. All but about six of the miners pass the bath-

house on their way to and from work.° |

’The Petition for Modification was published in the Federal

facilities serving the 6A, 23 Drift Mine would at all times guaran-

tee no less than the same amount of protection afforded the miners

of this mine by the application of the above standard. It included

a list of improvements contemplated for the existing facility if the

Petition were granted.

* Applicant Exh, 1.

5 Government Exh. 2.

19a

Mining Enforcement and Safety Administration

(MESA) Inspector Sonny A. Davenport, who issued the

above notice, testified that he used his own judgment in

making the determination that the bathhouse was not con-

venient for the miners at the 6A, 23 Drift Mine. He de-

fined as ‘‘convenient’’ a situation where men could come

out of a mine, take a shower, and change clothes without

having to get into their cars and drive 3 miles (Tr. 129).

Mr. George M. Pritt, MESA Coal Mine Inspection Su-

pervisor, who directed the inspector to issue the instant

notice, testified that MESA had established no official

policy or guidelines for interpreting the terms ‘‘conve-

nient’’ and ‘‘centrally located’’ in 30 CFR 75.1712-2 (Tr.

23). He stated that the bathhouse was inconvenient with

respect to the 6A, 23 Drift Mine to the extent that a man

emerging from the mine ‘‘would be subject to at times be-

ing wet, hot, dirty, tired—he’d have in the winter time a

cold automobile to enter and drive 15 minutes before he

can arrive at a place to find the facilities for washing,

cleaning up, and put on dry, clean clothes’’ (Tr. 22). Ac-

cording to Mr. Pritt, a centrally locally bathhouse would

be one which was equidistant from all the mines it served.

He felt that the bathhouse in the instant case was “rea-

sonably convenient” (Tr. 58-59) for those mines within a

2-mile radius. On this basis, he found the bathhouse incon-

venient for the miners at the 6A, 23 Drift Mine.

The Judge in his decision observed that Mr. Pritt’s defi-

nition of ‘‘convenient’’ (a bathhouse located within 2 miles

of a mine portal) conflicted with the inspector’s definition

(a bathhouse within walking distance of a mine portal).

In view of the fact that MESA had no official guidelines

for applying the terms of this regulation, he noted that

the inspector’s interpretation of convenient was vague and

arbitrarily applied in an area where none of the mine

portals was near enough to each other so that a centrally

located bathhouse would be within walking distance. The

20a

Judge also considered the fact that most of the miners

passed the bathhouse on their way to and from work as

having a bearing on convenience and concluded that MESA

had failed to make out a prima facie case of the alleged

violation. He therefore granted the Application for Re-

view, vacated the Notice of Violation and dismissed with-

out prejudice the Petition for Modification.

Contentions of the Parties

MESA contends that the inspector’s interpretation of

the term ‘‘convenient’’ was reasonable and that the Judge

erred in rejecting it.

The UMWA contends that the Judge misinterpreted the

term ‘‘convenient’’ and that MESA correctly ‘‘drew a

line’’ between mine portals located 2 and those located 3

miles from the bathhouse.

Carbon contends that the decision of the Judge is sup-

ported by a preponderance of the evidence and should be

affirmed.

Issue

Whether the Judge erred in concluding that MESA had

failed to prove a violation of 30 CFR 75.1712-2.

Discussion

For the following reasons we think that the Judge cor-

rectly vacated the notice of violation. The subject regula-

tion does not require either that a bathhouse be located

at each mine portal or that a bathhouse be located within

walking distance where such facility serves more than one

mine. Indeed, the regulation is silent on limitations in

terms of distance. It requires a bathhouse that serves more

than one mine to be centrally located for the convenience

of all the miners. In the present record the only fact of

consequence which differentiates the 6A, 23 portal from

the other portals in the Winifrede division is that the 6A,

2la

23 portal is 8/10 of a mile farther from the bathhouse than

the next closest portal. We cannot conclude that this in-

erement in distance renders the 6A, 23 portal inconvenient

with respect to the location of the bathhovse, especially

when it is considered that most of the miners employed at

the subject mine pass the bathhouse on their way home.

We hold that under the facts of the present case the re-

quirements of comfort and convenience prescribed by the

regulation were met, and that the interpretations urged

by MESA and the UMWA exceed those requirements.

Accordingly, the Judge’s decision should be affirmed.

Order

WuHererore, pursuant to the authority delegated to the

Board of Mine Operations Appeals by the Secretary of the

Interior, (43 CFR 4.1(4)), the decision in the above-cap-

tioned proceeding IS AFFIRMED.

/s/ Daviv Doane

David Doane

Chief Administrative Judge

I concur:

/8/ Howarp J. ScHELLENBERG, JR.

Howard J. Schellenberg, Jr.

Administrative Judge

DIsTRIBUTION :

Charles Q. Gage, Esquire

Jackson, Kelly, Holt & O’Farrell

P. O. Box 553

Charleston, West Virginia 25322

Counsel for Carbon Fuel Company

22a

Steven B. Jacobson, Esquire

United Mine Workers of America

900 Fifteenth Street, N.W.

Washington, D. C. 20005

Counsel for United Mine Workers of America

H. John Taylor, Esquire

United Mine Workers of America

P. O. Box 1313

1300 Kanawha Boulevard, Kast

Charleston, West Virginia 25325

Counsel for United Mine Workers of America

Thomas A. Mascolino, Esquire

Assistant Solicitor

Office of the Solicitor

U. S. Department of the Interior

4015 Wilson Boulevard, Ballston #3

Arlington, Virginia 22203

Robert A. Cohen, Esquire

Trial Attorney

Office of the Solicitor

U. S. Department of the Interior

4015 Wilson Boulevard, Ballston #3

Arlington, Virginia 22203

Counsel for Mining Enforcement and

Safety Administration

Administrative Law Judge

Forrest E. Stewart

Mr. John Ashcraft, Director

West Virginia Department of Mines

Room E-151, State Capitol Bldg.

Charleston, West Virginia 25305

23a

APPENDIX C

UNITED STATES DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

HEARINGS DIVISION

4015 wILsON BOULEVARD

ARLINGTON, VIRGINIA 22203

July 22, 1975

CarBon Fue, Company, Petitioner

Mining ENFrorcEMENT AND SAFETY ADMINISTRATION

(MESA), Respondent

Unirep Mine Workers or America, Respondent

Application for Review

Docket No. HOPE 75-800

Notice of Violation No. 3 SAD

May 22, 1975

Petition for Modification

Docket No. M 75-131

Mine No. 6 A, 23 Drift

Decision

Appearances: Charles Q. Gage, Esq., Jackson, Kelly, Holt,

& O’Farrell, Charleston, West Virginia, for Petitioner;

Robert A. Cohen, Esq., Office of the Solicitor, Depart-

ment of the Interior, for Respondent (MESA); H.

John Taylor, Esq., United Mine Workers of America,

Charleston, West Virginia, for Respondent (UMWA).

Before: Administrative Law Judge Stewart.

24a

FacTUuAL AND ProcepurRAL BacKGROUND

The above-captioned proceedings were filed in accord-

ance with sections 105 and 301(c)* respectively of the Fed-

eral Coal Mine Health and Safety Act of 1969 (30 U.S.C.

§ 801 et seq.).

On June 2, 1975, Petitioner filed the Application for Re-

view and a Motion to Expedite Hearing.

On June 2, 1975, Petitioner concurrently filed the Peti-

tion for Modification of a Mandatory Standard and a Mo-

tion for Extension of Time for Abatement.

By Notice issued June 3, 1975, the Application for Re-

view was scheduled for expedited hearing on June 9, 1975,

in Charleston, West Virginia.

The Mining Enforcement and Safety Administration filed

on June 4, 1975, a Motion to Consolidate the above-cap-

tioned proceedings.

‘Section 105(a)(1) of the Act provides in pertinent part as

follows:

An operator issued an order pursuant to the provisions of section

104 of this title, or any representative of miners in any mine affec-

ted by such order or by any modification or termination of such

order, may apply to the Secretary for review of the order within

thirty days of receipt thereof or within thirty days of its modifica-

tion or termination. An operator issued a notice pursuant to sec-

tion 104(b) or (i) of this title, or any representative of miners in

any mine affected by such notice, may, if he believes that the period

of time fixed in such notice for the abatement of the violation is

unreasonable, apply to the Secretary for review of the notice within

thirty days of the receipt thereof. ° ° °.

Section 301(¢c) provides in pertinent part:

Upon petition by the operator or the representative of miners,

the Secretary may modify the application of any mandatory safety

standard to a mine if the Secretary determines that an alternative

method of achieving the result of such standard exists which will

at all times guarantee no less than the same measure of protection

afforded the miners of such mine by such standard, or that the

application of such standard to such mine will result in a diminu-

tion of safety to the miners in such mine.

- ne

SSS

25a

On June 9, 1975, the United Mine Workers of America

filed an answer to the Application for Review in which it

admitted the issuance of the Notice of Violation but denied

all other allegations contained in Petitioner’s Application.

The UMWA concurrently, on June 9, 1975, filed an answer

to the Petition for Modification.

An expedited hearing was commenced in Charleston,

West Virginia on June 9, 1975. Witnesses were called on

June 9 and 10, 1975, by MESA, the Carbon Fuel Company

and the UMWA.

On June 11, 1975, MESA filed an answer to the Applica-

tion for Review wherein it stated that ‘‘said Notice was

properly issued pursuant to the provisions of Section

104(b) of [the Act] and that the time fixed in said Notice

for the Abatement of the violation is reasonable. MESA

further denies all other allegations contained in the subject

Application for Review. Wuererore, the Mining Enforce-

ment and Safety Administration prays that the Application

filed herein be dismissed.’’

The Petition for Modification was published in the Fed-

eral Register on June 17, 1975, 40 Fed. Reg. 25609,

On June 19, 1975, MESA filed a Motion to Dismiss the

Petition for Modification on the ground that the standard,

30 CFR 75.1712-2, is not subject to modification in a Section

301(c) proceeding since it is a mandatory health standard,

citing Cimmaron Coal Company, Docket No. M 74-27, decid-

ed January 14, 1974.

By Notice issued June 23, 1975, the above-captioned pro-

ceedings were scheduled for a prehearing conference on

June 25, 1975, in Charleston, West Virginia. All parties

were represented at the prehearing conference where it was

agreed that the proceeding involving the Petition for Modi-

fication of a Mandatory Standard would be postponed and

the Application for Review expedited. The time limits for

filing briefs and proposed findings and conclusions were set

26a

and these documents were filed by Carbon Fuel Co. and

MESA on July 8 and 9, 1975, respectively. At the prehear-

ing conference the parties advised that the period for abate-

ment had been extended to July 25, 1975.

Section 30 CFR § 75.1712-2 provides:

Bathhouses, change rooms and sanitary toilet facili-

ties shall be in a location convenient for the use of the

miners. Where such facilities are designed to serve

more than one mine, they shall be centrally located so

as to be as convenient for the use of the miners in all

mines served by such facilities.

II. Issur

Whether Petitioner’s bathhouse facility for Mine No. 6A,

23 Drift, located near Winifrede, West Virginia, is cen-

trally located so as to be convenient for the use of the min-

ers at the mine within the meaning of 30 CFR 75.1712-21

III. Finpincs anp Conclusions

Carbon Fuel Company is the operator of several mines

in the area of Winifrede, Kanawha County, West Virginia.

The mining in this area is similar to mining in other areas

of the Appalachian Region in that the terrain in this region

consists of ridges and valleys with splits in the coal seams

caused by the valley cutting through the seams (Tr. 179).

The terrain in this region results in the opening of a num-

ber of mines with a short life to mine ‘‘islands of coal’’

(Tr. 163). This is true with respect to Carbon’s opera*ions

in the Winifrede area and is also true for other operators

in the region.

Carbon operates several mines and other facilities in the

Winifrede area, including Mine No. 6; Mine No. 6A, 23

Drift; Mine No. 31 and No. 31—2 Drift; the Morton (No.

34) Mine; No. 38 (Strip) Mine; and Mine No. 45. Other

facilities include a shop, supply house and cleaning plants

(Carbon Ex. 1).

27a

The 6A, 23 Drift Mine was first opened in April 1974, as

part of the No. 6 Mine. It has held the separate designation

of No. 6A, 23 Drift since April, 1975. The mine employs 41

men on two production shifts and produces approximately

300 tons of coal in a 24 hour period (Tr. 9). The nearest

bathhouse facility to the portal of No. 6A Mine is located

three miles away on Winifrede Road (Tr. 10). The road

from the bathhouse of the 6A portal consists of one mile of

hardtop surface road and two miles of dirt road (Tr. 11).

According to MESA’s witness, George Martin Pritt, a

Federal Coal Mine Inspection Supervisor, the question of

whether the bathhouse facilities were centrally located or

convenient for the miners’ use was never raised in connec-

tion with the portal now known as the No. 6A Mine, 23

Drift from the time that the mine was opened in April, 1974

until February, 1975 (Tr. 51). The question arose, accord-

ing to UMWA’s witness Fitchue L. Philyaw, Regional

Safety Coordinator for the UMWA, in late January or

early February when he responded to a complaint from

some of the miners on the third shift who had found the

bathhouse facilities dirty when they arrived, the dirt and

mud having been left by the day shift workers who had de-

parted earlier (Tr. 113). When Mr. Philyaw, UMWA, ar-

rived to personally investigate the complaints, he learned

that the miners were not working on that particular day

(Tr. 113). Mr. Philyaw testified that, in answer to his

question put to some miners standing outside the bathhouse

whether the allegedly dirty conditions were responsible for

the miners not being worked, some of them said, “No. The

main thing it is the road is so bad we can’t get to the

mine” (Tr. 114). Mr. Philyaw further testified that

‘*{s]ome of them [said], ‘if we had a bathhouse and you

would get off your fanny and start enforcing the law like

you should we could stop a lot of this.’ I [Philyaw] said,

‘What do you want?’ They responded ‘We want a bath-

house’ ’’ (Tr. 114). Thereafter Mr. Philyaw filed an official

complaint (Gov’t Exhibit #1) wherein it was stated that

28a

‘‘the present bath house . . . is not centrally located’’ and

that a bath house... at each individual mine ... would be

much more convenient (emphasis added) for the men.’’ Mr.

Philyaw testified that two or three days thereafter the

president of the local union, Mr. Lester Kincaid, had called

him and had asked about the procedure required to ‘‘work

out some kind of deal up here,’’ interpreted by Mr. Philyaw

to mean a withdrawal of the complaint (Tr. 114). There-

after Mr. Kincaid again called Mr. Philyaw and said,

‘‘We’ve changed our minds. We want a bathhouse’’ (Tr.

115). In response to the complaint, Inspection Supervisor

George M. Pritt, between February 19 and 24, 1975, made

an investigation of the location of the bathhouse facilities at

the applicant’s Winifrede Mine complex. Inspector Pritt,

visited the bathhouse facilities and portals in question,

spoke to both the company officials and the miners and made

a determination of the approximate distances involved. In

his report submitted on February 26, 1975, (Gov’t Exhibit

+2) Inspector Pritt stated in pertinent part:

The Nos. 13, 25, and 23 drift portals serving the No.

6 mine [subsequently redesignated as the No. 6A Mine

with respect to the No. 23 drift] are distances of 8 and

4 miles from the bathhouse facilities; therefore these

facilities are not centrally located so as to be con-

venient for the use of miners at this time.

On February 24, 1974, Inspector Sonny A. Davenport

issued a 104(b) notice of violation at the Carbon Fuel’s No.

6 Mine, for violation of 30 CFR 75.1712-2. On March 14,

1975, Carbon Fuel applied for a waiver of the requirements

of 75.1712-2 pursuant to 30 CFR §§ 75.1712-4 and 75.1712-5

(Gov’t Exhibit #4) which application was denied by letter

submitted to the company on April 17, 1975, from James

Krese, District Manager of the Mining Enforcement and

Safety Administration (Gov’t Exhibit #4(a)). On May 6,

1975, Inspector Davenport modified his original notice to

exclude the No. 6A Mine, since it was no longer part of the

29a

No. 6 Mine. Inspector Davenport returned to the mine on

May 22, 1975, and issued notice No. 3 S.A.D. (Gov’t Exhibit

#5) giving the operator until June 23, 1975, to abate the

condition.

During the hearing there was testimony as to the mean-

ing or interpretation definition of ‘‘convenient’’ and ‘‘cen-

trally located’’ and as to the elements or factors considered

in making a determination whether a bathhouse was in com-

pliance with the requirements,

With respect to this determination, George M. Pritt, tes-

tified that MESA had established no guidelines for use in

this area (Tr. 23). Moreover, Mr. Pritt stated that he had

received no guidance from his supervisor, Mr. Weekley, the

Subdistrict Manager (Tr. 65) and that he was not aware

of any changes made in his report by persons at a higher

level (Tr. 66).

Mr. Pritt indicated that the distance and driving time

between the bathhouse and the mine portal concerned went

into his interpretation (emphasis added) of the meaning of

‘‘convenient’’ (Tr. 20, 22). Mr. Pritt stated that the actual

distance from the 23 Drift to the bathhouse was three miles

and not the four miles stated and relied upon in his earlier

investigation report and two Notices of Violation issued

subsequently (Gov’t Exhibits #2, #5, Tr. 22). Mr. Pritt

distinguished between ‘‘completely convenient,’’ ‘‘reason-

ably convenient,’’ and ‘‘inconvenient,’’ saying that he inter-

preted the present situation as ‘‘inconvenient to the extent

that a man leaving the mine portal at this particular place

would be subject to at times being wet, hot, dirty, tired—

he’d have in the winter time a cold automobile to enter and

drive fifteen minutes before he can arrive at a place to find

facilities for washing, cleaning up, and put on dry, clean

clothes’’ (Tr. 21-2).

Little or no help was given to Inspector Davenport by

MESA guidelines, case law, or the legislative history of the

Act. Therefore, the Inspector turned to his own experience

30a

as a miner and the assistance of his supervisor, Inspector

Pritt (MESA’s Brief, 4, Tr. 132). Inspector Davenport

stated that he used his own independent judgment in mak-

ing a determination, that the location of bathhouse facili-

ties were not convenient to the miners at the 6A portal

(Tr. 128). He defined (emphasis added) ‘‘convenient’’, ‘‘as

enabling a man to come out of the mine, take a shower and

change clothes without having to get in his car and drive

three miles’’ (Tr. 129). He relied on Inspector Pritt’s orig-

inal investigation, (emphasis added), and then made his

own determination as to whether the violation existed (Tr.

129), although he did acknowledge the direction by Mr.

Pritt for its issuance (Tr. 140). Among the factors he con-

sidered were: the distance from the bathhouse to the 6A

portal, the time it took to travel that distance, the muddy

and wet condition of the miners’ clothes and the health and

safety factors involved (Tr. 126, 131).

Mr. Pritt’s understanding of the word ‘‘central’’ was

that the distances from the portals to the bathhouse would

be equal (Tr. 23). Mr. Pritt stated that although there were

no guidelines on this particular point, he made a determi-

nation that the bathhouse would be reasonably convenient

for those mine portals located within a two-mile radius

thereof (Tr. 23) and, on this basis, he found in the course

of his investigation that the bathhouse facilities were rea-

sonably convenient for the use of the miners who enter the

portals serving the No. 31, the No. 34 (Morton) mines, and

the 31-2 drift, located at a distance of 2.1, 1.9, and 2.2 miles

respectively (Tr. 57). On this same basis, the mine in the

instant case, 23 Drift—located .8 miles farther away from

the bathhouse facilities (3.0 miles in all, Applicant’s Exhibit

#1, Tr. 54), was found in the investigation report to be in-

convenient for the use of the miners.

There was testimony that all but six of the miners at the

No. 6 Mine [including the 23 Drift, now part of the No. 6A

Mine] pass by the bathhouse (Gov’t Exhibit # 2, Tr. 54).

' Bla

Other roads which miners might use in traveling to and

from work intersect with the paved road coming from the

bathhouse at a distance of one mile (Tr. 48).

Mr. F.itt testified that the bathhouse facilities included,

by his rough count, approximately 250 baskets plus a com-

bination of 29 lockers and baskets (Tr. 14), but he later

indicated that he would not dispute a total of 350 baskets

plus the combination of 29 (Tr. 49). Government Exhibit

No. 4 indicates that 23 Drift employs a total of 32 persons,

however, testimony was given that indicates a total of 41

persons (Tr. 9). There was conflicting testimony as to the

total number of miners who might use the bathhouse, rang-

ing from approximately 268 (Tr. 173) to over 500 (Tr. 13).

Although there was testimony given on the elements or

factors (including life of the mine (Tr. 70), distance from

the existing bathhouse (Tr. 77), number of miners em-

ployed and on which shifts (Tr. 28), cost of a new facility

(Tr. 77), additional compensation in lieu of bathhouse (Tr.

28, 69), and availability of water (Tr. 77)) which would be

considered in determining whether or not a waiver would

be granted pursuant to 30 CFR §§ 75.1712-4 and -5, such

discussion is not entirely germane to the threshold issue of

whether the bathhouse was centrally located so as to be

convenient for the use of the miners and derivatively,

whether the Notice of Violation was validly issued.

Based on the foregoing testimony and the exhibits intro-

duced into evidence, I find that the Mining Enforcement

and Safety Administration has failed to make out a prima

facie case of a violation of 30 CFR 75.1712-2 and that the

Notice of Violation No. 3 SAD, May 22, 1975 (Gov’t Ex-

hibit #5), was improperly issued.

In Freeman Coal Mining Corporation, 1 IBMA 1 (1970)

at pages 27 and 28, the Board of Mine Operations Appeals

stated :

* * * We accept, at least for the purposes of the

issues presently before us, the proposition that any

32a

time for abatement is an unreasonable time if no vio-

lation exists. Hence, the truth of the Bureau’s allega-

tions of violation, and the legal sufficiency of the facts

claimed to constitute a violation, may be challenged by

an applicant seeking review of a section 104(b) notice.

The interpretation of ‘‘centrally located’’ as it is used in

the regulation, while certainly involving the notion of rea-

sonably uniform distance between a bathhouse and any

mine portal which such facility is intended to serve, also

includes the concept of centrality with respect to the travel

route that the miners take in going to and from work since

the balance of the provision adds ‘‘so as to be convenient

for the use of the miners in all the mines served by such

facilities.’’ That this is a necessary consideration can be

shown in a hypothetical situation where the bathhouse

would be equidistant from several mines, yet the miners’

homes or the road leading to them would be on the side of

the mines that was opposite from the bathhouse. In such a

situation the miners would all have to pass the area where

the mines were located to go to the bathhouse and then in

essence backtrack to get to the mines, repeating the dupli-

cative process at the end of the shift. In the instant case,

the evidence indicates that all but six of the miners working

at the No. 6 Mine (which includes the after-designated No.

6A Mine) pass the bathhouse on the way to and from work

(Gov’t Exhibit #2).

Based on the evidence adduced at the hearing, I find the

inspector’s interpretations of ‘‘convenient for the use of

the miners’’ to be vague and arbitrarily applied.

Both of MESA’s witnesses stated that they had no guide-

lines to assist in the interpretation of the language of the

Regulation (Tr. 23, 132).

Mr. Pritt, one of MESA’s witnesses, testified that dis-

tance was a consideration in his interpretation of ‘‘con-

venient’’ (Tr. 20, 22), yet the evidence indicates that the

33a

initial investigation report (Gov’t Exhibit #2) as well as

both the initial Notice of Violation No. 1 SAD, February 24,

1975 and the notice involved in the present proceeding, No-

tice No. 3 SAD, May 22, 1975, (Gov’t Exhibit #5), issued

because No. 6 Mine, 23 Drift was redesignated as the No.

6A Mine (Tr. 30), all used the erroneous figure of four

miles instead of three miles as the distance from the bath-

house to the 23 Drift (Tr. 22). I do not intend to hold that

the demarcation between convenient and inconvenient oc-

curs at a precise mileage figure.

Mr. Davenport, MESA’s other witness, testified that he

interpreted ‘‘convenient’’ as ‘‘enabling a man to come out

of the mine, take a shower and change clothes without hav-

ing to get in his car and drive three miles’’ (Tr. 129). This

interpretation renders meaningless the provision in the

Regulation permitting one facility to serve more than one

mine when coupled together with the experience of his su-

pervisor, Mr. Pritt, which recalls no situation in which two

mine portals were within walking distance (Tr. 98).

Mr. Pritt’s interpretation that a bathhouse located 2.2

miles from a mine portal is convenient for those miners

(Tr. 57) directly conflicts with Mr. Davenport’s interpreta-

tion that a bathhouse is inconvenient if the miners who

would use it have to drive to get to it (Tr. 151).

There was testimony that driving time was a factor in

the interpretation of ‘‘convenient’’, yet estimates of the

driving time ranged from seven and 15 minutes (Tr. 48,

11).

The safety of the miners while driving down from the

portal to the bathhouse was given as a factor affected by

the location of the bathing facilities in that in the cold

weather a miner was liable to go over the bank or run into

someone (Tr. 118, 131, 151), yet there was testimony that

there is no knowledge of any accidents occurring on the

road (Tr. 178) and that the bathhhouse’s present location

made it possible for the miners to ride together in some-

34a

one’s car to and from the mine, resulting in a reduction of

traffic on the dirt road which is also used to truck coal (Tr.

180). It is difficult to perceive how the cited hypothetical

danger of going over a bank or running into someone in

cold weather could be eliminated by a centrally located bath-

house.

In discussing the present location of the bathhouse with

respect to the health of the miners at the 23 Drift, Mr.

Pritt admitted that he had no data which might show a cor-

relation between distance from the portal to the bathhouse

and the miners’ health nor did he have any data which

compared the health of the miners in 23 Drift with that of

the miners working in mines situated closer to the bath-

house (Tr. 102). With respect to the health and safety

factors involved, Mr. Davenport stated he never used bath-

ing facilities at any of the mines after conducting an inspec-

tion, inspections that usually lasted four to five hours un-

derground per day (Tr. 136), before returning to Mont-

gomery, West Virginia, one hour’s driving time from the

present area (Tr. 137).

Mr. Philyaw’s initial complaint (Gov’t Exhibit #1)

stated that it would be ‘‘much more convenient for the

men’’ if a bathhouse were to be placed at each individual

mine. The fact that such an arrangement would obviously

be more comfortable does not indicate inconvenience under

the terms of the regulation and in fact the language of the

regulation precludes such a finding. The possibility of dif-

fering interpretations by inspections is illustrated by Su-

pervisor Pritt’s distinctions between absolutely convenient,

reasonably convenient, and inconvenient. This flexible but

vague approach to the matter is completely at variance

with Inspector Davenport’s approach that the bathhouse

must be located within walking distance (Tr. 151).

It is clear from the language of the Regulation that it

was not intended that there must be a separate bathhouse

for each mine if the bathhouse meets the specified criteria.

35a

The last sentence of the Regulation provides that where

such facilities are designed to serve more than one mine,

they shall be centrally located so as to be convenient for

the use of the miners in all of the mines served by such

facilities.

It is established by the evidence that none of the mine

portals in this area were near enough to each other so that

the miners could walk to a centrally located bathhouse and

there was no evidence in the record to indicate that the

miners could ordinarily do so in other mines in different

areas. Such facilities are not required by the Regulation if

they meet the other specified criteria.

In this case there seems to be little difference in the de-

gree of convenience between the mine 2.2 miles from the

bathhouse and the mine 3 miles from the bathhouse. In both

instances the bad roads from the mines must be traveled in

order to get to the improved road leading to the bathhouse.

Once the improved road is reached and the car is heated,

the additional .8 of a mile should make little difference in

time or convenience.

The interpretation of ‘‘convenient’’ includes more than

just consideration of distance and driving time. It also in-

cludes the elements of comfort and stability or continuity

in working habits or patterns as well as safety or protec-

tion of the individual’s personal effects. Applicant’s wit-

ness, Mr. Lewis N. Thomas, Jr., Senior Vice President for

Operations, testified that the present bathhouse was con-

structed with the element of continuity in mind—that the

miners could continue to use the facilities as active opera-

tions progressed in the area surrounding the bathhouse

(Tr. 160, 165). Mr. Thomas also stated that consideration

was given to the protection of personal belongings when the

bathhouse was situated across the road from the ‘‘company

store’’ (Tr. 163).

The severn! briefs and proposed findings filed by the

parties to these proceedings have been carefully reviewed.

36a

To the extent that these post-hearing documents are in-

consistent with the findings and conclusions set forth herein,

they are rejected.

Since I find that there was no violation of 30 CFR

75.1712-2 the Petition for Modification of a Mandatory

Standard thus becomes moot and will be dismissed without

prejudice. Under this decision MESA’s motions to consoli-

date the proceedings and to dismiss the Petition for Modi-

fication because 30 CFR 75.1712-2 is not a mandatory safety

standard become meaningless.

Order

Accordingly, Ir Is OrpErep THat

(1) the Application for Review is Granted and the No-

tice of Violation No. 3 SAD, dated May 22, 1975, is hereby

VacaTED, and

(2) the Petition for Modification in the above-captioned

proceedings is Dismissep without prejudice.

/s/ Forrest E. Stewart

Forrest E. Stewart

Administrative Law Judge

Issued: July 22, 1975

37a

Distribution:

Robert A. Cohen, Trial Attorney, Office of the Solicitor,

U.S. Department of the Interior, 800 North Quincy

Street, Arlington, Virginia 22203

Charles Q. Gage, Jackson, Kelly, Holt & O’Farrell,

P.O. Box 553, Charleston, West Virginia 25322 (Cer-

tified Mail)

H. John Taylor, Esq., United Mine Workers of Amer-

ica, P.O. Box 1313, 1300 Kanawha Boulevard, East,

Charleston, West Virginia 25325 (Certified Mail)

Steven B. Jacobson, Esq., United Mine Workers of

America, 900 Fifteenth Street, N.W., Washington,

D.C. 20005 (Certified Mail)

Assistant Administrator, Mine Health and Safety,

MESA, U.S. Department of the Interior

Standard Distribution

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.