Reliable Coal Corporation v. Morton, 72-1477.

• Decision Date: 03 May 1973
• Docket Number: No. 72-1477.,72-1477.
• Citation: 478 F.2d 257
• Parties: RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.2d 257 (1973)

RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents.

No. 72-1477.

United States Court of Appeals, Fourth Circuit.

Argued December 8, 1972.

Decided May 3, 1973.

Brooks E. Smith, Kingwood, W. Va. (Dailey & Smith, Kingwood, W. Va., on brief), for petitioner.

Michael Kimmel, Atty., U. S. Dept. of Justice, Civil Div. (Harlington Wood, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., U. S. Dept. of Justice, Civil Div., J. Philip Smith, Asst. Sol., U. S. Dept. of Interior, on brief), for respondents.

Charles L. Widman, Atty., International Union, United Mine Workers of America (Edward L. Carey, and Willard P. Owens, Washington, D. C., on brief), for respondent, International Union, United Mine Workers of America.

Before BUTZNER, FIELD and WIDENER, Circuit Judges.

FIELD, Circuit Judge:

Reliable Coal Corporation seeks review of a decision of the Board of Mine Operations Appeals which affirmed the Hearing Examiner in denying Reliable's petitions to modify certain mandatory safety standards contained in Sections 303(d)(1) and 303(l) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 863(d) (1) and 863(l). Additionally, petitioner complains of the Board's determination that review of the reasonableness of time for abating a violation of Section 303(d) (1) was rendered moot upon Reliable's compliance with the standard.¹ Jurisdiction for this review is based upon Section 106, 30 U.S.C. § 816.

Under Section 301(c) of the Act, 30 U.S.C. § 861(c), the Secretary may, upon petition by an operator or the representative of miners, modify the application of any mandatory safety standard to a mine if he 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 * * * by such standard" or that "the application of such standard to such mine will result in a diminution of safety to the miners."

Asserting that its Kanes Creek Mine was entitled to modification of the mandatory standards of Section 303(l) under both criteria of Section 301(c), Reliable filed its initial petition for modification on January 5, 1971. On January 7, 1971, a preshift inspection resulted in the issuance of an abatement order for violating Section 303(d)(1) of the Act to take effect January 22, 1971.² Subsequent to this order Reliable filed separate petitions challenging the reasonableness of time of the order as well as the application of Section 303(d) (1) on the basis that it was in compliance with the standard by an alternative method that attains the same result and assures no less than the same measure of protection to the miners. These petitions were consolidated for hearing by the Examiner.

In both instances, the modifications sought by Reliable pertain to testing devices used to detect methane in a mine. Section 303(d) (1) requires the use of a methane detector³ to check for accumulations of methane within three hours immediately preceding the beginning of the shift. In lieu of the detector, Reliable would test with a permissible flame safety lamp, a device commonly used for this purpose prior to the 1969 Act.⁴ Section 303(l) requires as an additional methane detecting device that a methane monitor⁵ be installed on any electric face cutting equipment, continuous miner, longwall face equipment, and loading machine, except that no monitor is required to be installed on the equipment prior to the date such equipment is required to be permissible⁶ under Section 305(a), 30 U.S.C. § 865(a).⁷ Reliable seeks to avoid the mandate of this provision of the Act by making what it terms "continuous routine periodic checks" with a methane detector or permissible flame safety lamp. The Examiner, whose decision was affirmed by the Board, concluded that neither of the modifications proposed by Reliable would meet the requirements of Section 301(c) that they guarantee the same measure of protection to the miners as the mandatory standards. In reaching this conclusion, the Examiner rejected Reliable's argument that he should determine whether the Kanes Creek Mine is not gassy or potentially gassy. While permitting evidence on this question at the hearing, he concluded that the Act abolished the gassy/nongassy distinction and therefore it was unnecessary for him to make a factual finding relative to the potential for methane accumulations in Reliable's Kanes Creek Mine.

Reliable's position on this review rests on the premise that Sections 301(c) and 305(a) of the 1969 Act, when read to-gether, indicate that it retained the distinction of the 1952 Federal Coal Mine Safety Act between gassy and nongassy mines. Under the prior Act, a nongassy mine, a classification based on the amount of methane detected in a mine, was subject to less stringent safety standards than those imposed on a gassy mine. See, e. g., Sections 209 (d) (5), (6), (7), (9), (10), and (11) of the 1952 Act, 66 Stat. 703. Reliable concedes that all mines are initially regulated by the same standards under the 1969 Act, but argues that the debate in Congress on the question of retaining the distinction resulted in a compromise provision, namely Section 301(c), which they feel permits an operator to obtain a modification upon a factual showing that there is no potential for gas accumulation in the operator's mine. Reliable reasons that once this is established, the mine satisfies the criteria for modification as enunciated in Section 301(c). They contend that Section 301(c) does not require a finding that the alternative method of measuring methane proposed by the operator must have the same degree of refined measurement as the statutory standard, but only that it achieve the same result. From this premise Reliable argues that since no methane exists in the Kanes Creek Mine, the alternative method will guarantee no less than the same protection since the result of using either device will be the same —a zero reading of methane. Reliable also refers to Section 305(a) (2) as an indication of Congressional intent to retain the gassy/nongassy distinction since this section extends to mines not previously classified as gassy and located above the watertable substantial grace periods within which to convert their present equipment to permissible status. Under the 1952 Act, it was primarily in regard to the requirement pertaining to the use of permissible electrical equipment that the distinction between gassy and nongassy mines was significant. In sum, based on a showing that the Kanes Creek Mine is not gassy or potentially gassy, Reliable asserts that Section 301(c) should countenance the use of a permissible flame safety lamp in lieu of a methane detector; and either of these devices in lieu of the methane monitor.

The argument is flawed in every aspect, the most conspicuous being the contention that the 1969 Act retained the distinction between gassy and nongassy mines. A review of the legislative history of the Act as contained in House Comm. on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm.Print, 91st Cong., 2d Sess. (1970) hereinafter cited as Leg. Hist., convinces us that, aside from the extension periods provided for in the Act, Congress intended to eliminate any distinction between gassy and nongassy mines. While the debate in Congress relative to Section 305(a) focused on the requirement of maintaining permissible equipment, it clearly indicates a rejection of the classification as related to all safety standards since obviously the means prescribed to detect methane provides greater protection for the miners than the mere elimination of one source of igniting the gas once its presence is discovered in a working area.

As in the case of prior coal mine legislation, the 1969 Act was precipitated by a tragic mining incident, an explosion which entombed seventy-eight coal miners in the Farmington No. 9 mine located in West Virginia.⁸Leg.Hist. at 558. Immediately, Senate and House Subcommittees conducted extensive hearings to propose new legislation designed to raise the health and safety standards of the coal mining industry and one of the major areas of concern and controversy involved the elimination of the gassy/nongassy distinction. Aside from the dust standard, no issue received as much time or attention before the Senate Subcommittee. Leg.Hist. at 222. Significantly, of the bills introduced in the Senate Hearings on S. 355, S. 467, S. 1094, S. 1178, S. 1300, and S. 1907 Before a Subcommittee of the Comm. on Labor and Public Welfare, 91st Cong. 1st. Sess. 7-447 (1969), only Senator Cook's proposal retained the distinction, id. at 283. The Committee, which during the deliberations had rejected an amendment submitted by Senator Cooper which would have retained the gassy/nongassy classification, Leg.Hist. at 35, explained in their report accompanying the composite bill S. 2917, that "they followed the recommendation of the Department of Interior that all mines be treated alike, in providing these new and additional safeguards to control methane and prevent ignitions." Leg.Hist. at 27.

During the Senate debate on the Committee Bill, Senator Cooper again introduced an amendment to retain the distinction. Leg.Hist. at 397. To accommodate the Senator's views with respect to the financial imposition on the small mines, the substitute amendment was offered which provided mines previously classified as nongassy additional time within which to comply with the requirements of procuring permissible electrical equipment. Leg.Hist. at 474-77. The amendment recognized the economic impact on the small operator if required to convert to permissible equipment on the operative date of the Act, as well as the industrial reality that manufacturers were incapable of producing the...