Lucas Coal Co. v. Interior Bd. of Mine Operations Appeals
| Citation | 522 F.2d 581 |
| Decision Date | 29 August 1975 |
| Docket Number | No. 74-1813,74-1813 |
| Parties | 1975-1976 O.S.H.D. ( 19,988 LUCAS COAL COMPANY et al., Petitioners, v. INTERIOR BOARD OF MINE OPERATIONS APPEALS et al., Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Henry J. Wallace, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for petitioners; Leo M. Stepanian, Brydon & Stepanian, Butler, Pa., of counsel.
Carla A. Hills, Asst. Atty. Gen., William Kanter, Michael Kimmel, Attys., Dept. of Justice, Washington, D. C., for respondents.
Before ADAMS, HUNTER and GARTH, Circuit Judges.
Petitioners, pursuant to § 106(a) of the Federal Coal Mine Health and Safety Act of 1969, 1 seek review of an order of the Secretary of the Interior acting through the Board of Mine Operations Appeals. 2 Three principal issues are presented by this appeal.
First, whether the Secretary of the Interior, acting through the Board of Mine Operations Appeals, erred in interpreting § 77.410 of the Secretary's mandatory safety standards so as to require bulldozers to be equipped with back-up alarms. 3
Second, whether the Board erred in sustaining the issuance of a notice of violation in view of the unavailability of satisfactory equipment.
Third, whether the Board erred in deciding that certain violations of the mandatory safety standards were rendered moot by the abatement of the violations prior to hearing.
Petitioners are thirteen owners and operators of surface coal mines located in Butler, Clarion and Mercer Counties, Pennsylvania, whose mines are subject to the provisions of the Federal Coal Mine Health and Safety Act and to the mandatory safety standards 4 promulgated by the Secretary pursuant to the act. In 1971 and 1972 the Bureau of Mines of the Department of the Interior, 5 following the directives of § 104(b) of the Act, 6 caused to be issued and served on the petitioners twenty-nine notices of violations.
Section 104(b) requires a mine inspector finding a violation of the mandatory safety standards not creative of an imminent danger to issue to the mine operator a notice of such violation, fixing a time for its abatement. An inspector who, by contrast, finds a condition of imminent danger must order "forthwith," under section 104(a) of the Act, 7 that the operator withdraw all persons from the affected area.
Twenty-five of the notices received by the petitioners related to alleged violations of § 77.410 because of the failure of the mine operators to attach to mobile equipment then being used an alarm device which activated when the equipment moved in reverse. Nineteen of the twenty-five notices of violations of § 77.410 had reference to bulldozers, and were served on nine of the petitioners. The other six notices of alleged violations of § 77.410 concerned mobile equipment other than bulldozers. As to the other types of mobile equipment, the question whether a violation of § 77.410 actually occurred is not raised in the petition. The remaining four of the twenty-nine notices of violations received by petitioners during the period in question set forth alleged violations of various of the Secretary's mandatory safety standards other than § 77.410. The fact of violation of the other safety standards also is not an issue before us.
As provided in § 105(a) of the Act, 8 petitioners filed applications for review by the Secretary of each of the twenty-nine notices both as to the fact of violation in the first instance, as well as to the reasonableness of the time fixed for abatement of the violations. An administrative law judge of the Hearings Division of the Office of Hearings and Appeals of the Department, after holding extensive prehearing conferences, consolidated the twenty-nine applications and conducted the consolidated hearings from June 20 to 22, 1972.
Prior to the hearings, twelve of the twenty-nine alleged violations had been abated: five of the nineteen notices of violations of § 77.410 applicable to bulldozers, three of the six notices of violations of § 77.410 applicable to mobile equipment other than bulldozers, and all four notices of violations of various mandatory safety standards other than the § 77.410 safety standard. An attorney for the Bureau of Mines stipulated with counsel for petitioners that the Bureau would not move to dismiss, on the ground of their abatement, the twelve abated violations.
The administrative law judge, who admitted the notices of abatement into the record, appears to have honored the stipulation. In any event, he proceeded to find against the petitioners in all but one of the twenty-nine applications for review, 9 and petitioners appealed to the Board of Mine Operations Appeals.
Following its earlier decision in Reliable Coal Corp., 10 the Board held that the twelve applications for review of notices of abated violations should have been dismissed by the administrative law judge, that all review of notices under § 105 must relate to a determination of the reasonableness of the time fixed for abatement, and in the case of an abated violation, there remains no appropriate issue for review under § 105(a), notwithstanding the stipulation, since a stipulation cannot create a justiciable issue where none exists. 11
The Board ratified the administrative law judge's disposition of the remaining seventeen applications, including the determination that bulldozers are mobile equipment subject to the requirements of § 77.410. Petitioners appealed, and we affirm.
The ruling that § 77.410 includes bulldozers in its coverage constitutes an interpretation of an administrative regulation that may not be set aside unless such ruling is plainly erroneous or inconsistent with the regulations. 12 Courts are obliged to accord great deference to an administrative agency's construction of the language of a statute which it administers and, even more clearly, the agency's interpretation of regulations it has drafted. 13 An agency's explication of its regulation if reasonable, therefore, is controlling despite the existence of other interpretations that may seem even more reasonable. 14
Petitioners contend that the "unambiguous" wording of § 77.410 excludes bulldozers from its coverage. They maintain that bulldozers are the most common piece of equipment used by strip miners and that the several illustrative types of mobile equipment specified in § 77.410, which is a safety standard directed to strip mining, exclude bulldozers. Accordingly, they claim, bulldozers were intentionally eliminated from the section's coverage. In addition, petitioners contend that bulldozers may be distinguished from the equipment listed in § 77.410 in that bulldozers are heavier and move more slowly. Petitioners state that the administrative law judge based his decision applying § 77.410 to bulldozers on an erroneous finding that bulldozers are a type of tractor and tractors are, by way of example, one of the kinds of equipment referred to in § 77.410.
Petitioners, however, cannot deny that bulldozers are "mobile equipment" to which the section is generally applicable. The five examples set forth in § 77.410, and preceded by the words "such as," are plainly not all-inclusive as to the section's coverage. Therefore the administrator's interpretation of § 77.410 must govern what other mobile equipment will be subject to its requirements.
The size, weight and velocity of bulldozers and their bearing on the particular safety hazard that § 77.410 was intended to correct are matters primarily for the expertise of the Board. Petitioners' contention that bulldozers are not similar to the listed equipment is lacking in merit since, as petitioners admit, standard dictionaries commonly define bulldozers as a type of tractor, and a tractor is one of the listed items of equipment illustrating the type of mobile equipment covered by § 77.410. The Bureau's A Dictionary of Mining, Mineral and Related Terms, 1968 edition, also defines bulldozers generally as tractors. The decision that a bulldozer is included in the class of equipment covered by § 77.410 is neither inconsistent with the language of the regulation nor with its safety purpose. Since we cannot say that the Board's interpretation of § 77.410 is unreasonable, we may not set it aside.
Petitioners also maintain that a reasonable interpretation of § 77.410 would not include bulldozers in its coverage because, they claim, the view by a bulldozer operator of the area behind the vehicle is not obstructed. In this regard petitioners rely on a 1971 coal mine inspection manual providing that certain vehicles, such as automobiles and jeeps, need not be equipped with a warning device required by § 77.410. They also rely on an Occupational Safety and Health Administration regulation 15 providing that certain earth-moving equipment which in contrast to automobiles and jeeps have an obstructed view to the rear be equipped with a reverse signal alarm comparable to the alarm required by § 77.410.
We need only say that there is nothing in § 77.410 which limits its coverage to vehicles with an obstructed view to the rear. Furthermore, a directive to the effect that vehicles such as automobiles and jeeps are not encompassed within the "mobile equipment" covered by § 77.410 unless their view to the rear is obstructed seems wholly consistent with the Board's interpretation of the section challenged by petitioners. Automobiles and jeeps are light-weight vehicles in a class that is distinct from mobile equipment such as trucks, tractors and graders included in § 77.410.
Even if we could agree, which we cannot, that the only reasonable interpretation of § 77.410 is that it be applied exclusively to vehicles with an obstructed view to the rear, there is evidence in the record that the operator of a bulldozer does not have a completely clear view to the rear.
Petitioners argue that the Board is bound by a prior ruling in Buffalo...
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