National Independent Coal Operators Ass'n v. Morton, Civ. A. No. 397-72.

• Decision Date: 09 March 1973
• Docket Number: Civ. A. No. 397-72.
• Citation: 357 F. Supp. 509
• Parties: NATIONAL INDEPENDENT COAL OPERATORS ASSOCIATION et al. v. Rogers C. B. MORTON, Secretary of the Interior et al.
• Court: U.S. District Court — District of Columbia

357 F. Supp. 509

NATIONAL INDEPENDENT COAL OPERATORS ASSOCIATION et al. v. Rogers C. B. MORTON, Secretary of the Interior et al.

Civ. A. No. 397-72.

United States District Court, District of Columbia.

March 9, 1973.

John L. Kilcullen, Gall, Lane, Powell & Kilcullen, Washington, D. C., for plaintiffs.

Harold H. Titus, Jr., U. S. Atty., Arnold T. Aikens, Robert M. Werdig, Jr., Asst. U. S. Attys., Washington, D. C., for defendants.

MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., District Judge.

This action involves a challenge to the procedures adopted by the Bureau of Mines, United States Department of the Interior, in assessing civil penalties for violation of health and safety standards under the Federal Coal Mine Health and Safety Act of 1969, Public Law 91-173, 30 U.S.C. § 801 et seq. Specifically, Plaintiffs claim that the Secretary and his subordinates have violated, and continue to violate, the requirements of Section 109(a)(1) and (3) of the Act, 30 U.S.C. § 819(a)(1) and (3). Subsection 109(a)(1) requires that in determining the amount of civil penalties to be assessed under the act the Secretary "shall consider" six factors: 1) the operator's history of previous violations; 2) the appropriateness of the penalty to the size of the operator's business; 3) whether the operator was negligent; 4) the effect of the penalty on the operator's ability to continue in business; 5) the gravity of the violation, and 6) the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. Subsection 109(a)(3) requires that a civil penalty shall be assessed by the Secretary

only after the person charged with a violation under this chapter has been given an opportunity for a public hearing and the Secretary has determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted. . .

This is a question of first impression as to the construction and application of these provisions. The matter is now before the Court on Defendant's Motion to Dismiss or, in the alternative, for summary judgment, and on Plaintiff's cross-motion for Summary Judgment.

At present, when a Federal Mine Inspector finds a violation of the health or safety standards of the act, a "notice of violation" is issued to the Bureau of Mines in Washington. Based solely upon that notice of violation an assessment officer prepares and issues a "Proposed Order of Assessment" which lists the penalty to be assessed and recites verbatim that the six statutory factors have been considered. Upon receipt of the Proposed Order of Assessment, which lists only the violation and the amount of the penalty assessed, the operator may file a protest against either the finding of a violation or the appropriateness of the penalty, or both. Upon protest the Assessment Officer may reconsider his initial proposed assessment in light of information and data submitted by the operator and may vacate, amend, or affirm the initial Proposed Order. Vacating the order, of course, ends the matter. If the order is either amended or affirmed the operator may then demand a public hearing, to be conducted under the Administrative Procedure Act, 5 U.S.C. § 554. If the operator does nothing in response to the Proposed Order of Assessment, after fifteen (15) working days, "he shall be deemed to have waived his right of protest, including his right of formal adjudication and opportunity for hearing, and the Proposed Assessment Order shall become the final assessment order of the Secretary of the Interior." 30 C.F.R. § 100.4(e). Part 100 of Title 30 of the Code of Federal Regulations contain the only written guidelines governing the penalty assessment process. 30 C.F.R. § 100.4(c) requires that in determining the amount of penalty to be initially proposed the assessment officer will consider all relevant circumstances including the six factors required by statute to be considered. Appendix A to Part 100 contains a penalty schedule listing suggested penalty ranges for various types of violations, albeit with a proviso that particular circumstances of a case might warrant variation from the listed schedule. There are no written guidelines within the assessment officer to guide the assessment officers in evaluation or application of the six statutory criteria for penalty assessment. When no protest is offered to a Proposed Order a form entitled "finding of fact" is inserted in the appropriate case file in the assessment office. That form recites that the assessment officer has found as fact that the cited violation did occur. From the effective date of the Act, March 30, 1970, through June 30, 1972, over 96,000 orders of assessment were issued by the Assessment Office of the Bureau of Mines.

Defendants here contend that the process by which the initial Proposed Order of Assessment is issued is "basically informal and preliminary in nature and provide(s) the coal mine operator with the opportunity to resolve the question of a civil penalty without more formal and time-consuming adjudicatory hearing procedures." (Defendants Br. at 4). The Court has difficulty with this characterization, however, for if the mine operator does nothing the Proposed Order ripens into a final order, enforceable in accord with the provisions of the statute. Under the statute, all final orders must have been prepared and issued in accord with the requirements of subsections 109(a)(1) and (3), i. e. the six statutory factors must have been considered in determination of the penalty to be assessed, the operator charged with the violation must have been given an opportunity for a public hearing, and the Secretary must have determined, by decision incorporating his findings of fact therein, that a violation did occur, and the amount of the penalty which is warranted. Bureau regulations, 30 C.F. R. § 100.4(c), recognize that the six statutorily prescribed factors must be considered even in "determining the amount of the proposed penalty." The Bureau contends that these factors are in fact considered in the initial assessment process, despite the absence of any written guidelines within the Bureau for evaluation and application of the factors and despite the absence of any record of their evaluation and application to a given case in the individual case file. In short, without any guidelines or restrictions, and without making any record, the assessment officer "considers" the factors subjectively, in a virtual vacuum. Approximately 100,000 such assessments were thus "considered" over two years. These are strong indications that the proposed order of assessment is anything but a considered determination. Since a factual issue might be raised on this point, however, it is unnecessary to pursue the point further in determining the present motions.¹

It is undisputed that the operator charged with a violation is given an opportunity for a hearing. Defendants would have the court read the statutory...