Zeigler Coal Co. v. Kleppe
| Decision Date | 22 April 1976 |
| Citation | 175 U.S.App.D.C. 371,536 F.2d 398 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
J. Halbert Woods, Chicago, Ill., for petitioner.
Allen H. Sachsel, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for respondent. Rex E. Lee, Asst. Atty. Gen. and Ronald R. Glancz, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D. C., were on the brief for respondent. Stephen F. Eilperin, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondent.
Steven B. Jacobson, Washington, D. C., with whom Joseph A. Yablonski, was on the brief for intervenor.
Guy Farmer and William A. Gershuny, Washington, D. C., filed a brief on behalf of Bituminous Coal Operators' Ass'n, as amicus curiae, urging reversal.
Before BAZELON, Chief Judge, WILKEY, Circuit Judge and MERHIGE, * United States District Judge for the Eastern District of Virginia.
Opinion for the Court filed by Circuit Judge WILKEY.
Petitioner is the operator of the Zeigler No. 9 Mine near Madisonville, Kentucky. The purely legal issues swirl about the enforceability of the mine's ventilation plan, which was adopted by the operator after approval and subject to periodic review by the respondent Secretary pursuant to the Federal Coal Mine Health and Safety Act. 1 This appeal of a mine inspector's withdrawal order, 2 which had the effect of closing the mine for a short period, presents a difficult and novel question of statutory construction. The language of § 104(b) 3 and other enforcement provisions limits their application to violations of "any mandatory health or safety standard." 4 The principal question thus becomes whether the notice and withdrawal provisions of § 104(b) may be invoked in response to violations of a ventilation system and methane and dust control plan, adopted by the operator pursuant to § 303(o ). 5
Setting the stage for controversy, petitioner's ventilation plan was apparently amended at the agency's suggestion on 9 November 1973. A requirement was added, to be effective 1 January 1974, that "wood used in stoppings, doors, and other ventilation controls" be treated with fire-retardant material. 6
On 25 January 1974 a Mine Enforcement Safety Administration (MESA) inspector issued a notice of violation pursuant to § 104(b), charging that three doors in the mine had not been so treated. Six days were given to abate the condition, although the total time required, once fire-retardant paint was procured, was only about four man-hours per door. On 31 January the condition had not been completely abated, and an additional day was given to comply. Again on the morning of 1 February a further extension was given until 1:45 p. m. When full compliance had not been achieved by that time, the inspector issued the order of withdrawal here under attack. Compliance was achieved and the mine was reopened at 5:45 p. m. the same day. 7
Petitioner sought review of the inspector's withdrawal order, pursuant to § 105(a) of the Act. 8 After a hearing on the merits, the Administrative Law Judge upheld the inspector's withdrawal order, rejecting Petitioner's contention that there had been no violation of a mandatory standard as required to trigger the § 104(b) provisions. 9 This is the basic legal issue in the case. On appeal to the full Interior Board of Mine Operations Appeals, this decision was affirmed. 10
On this appeal of the Board's order of affirmance, the material facts are not in dispute. Rather, the question posed is one of law, which has far-reaching importance for the future effectiveness of the statute. For, while numerous standards, regulations, and plans 11 have been promulgated in implementation of the Act, the enforcement provisions are, in general, made applicable only to violations of so-called "mandatory standards." Our construction of this mandatory standard concept, in resolving the case before us, will necessarily reflect upon the enforceability of numerous regulations and plans. We therefore deem it prudent to begin our discussion of the law governing this case with a brief overview of the operative provisions of the statute.
The Federal Coal Mine Health and Safety Act of 1969 was enacted in the wake of the 1968 Farmington, West Virginia, mine disaster, in order "to protect the health and safety of coal miners, and to combat the steady toll of life, limb, and lung, which terrorizes so many unfortunate families." 12 In pursuit of this objective, Congress moved simultaneously in two directions. It established a comprehensive set of standards, an elaborate procedure for their modification, and provisions for their enforcement, in order to assure health and safety conditions commensurate with the expanding horizons of knowledge and technology. And it also established a program of relief for victims of black lung disease and their families. It is the former set of provisions that are involved in the action before us. The standards, and their means of enforcement, were the product of a hard-fought legislative battle, whence arises most of our judicial difficulties, as we conscientiously attempt to ascertain and faithfully carry out the intent of Congress.
The part of the Act aimed at assuring the maintenance within mines of appropriate health and safety conditions, is built around the concept of the mandatory standard. The legislative history reveals two competing concerns in the minds of persons affected by the legislation, and the mandatory standard concept was adopted as a way of reconciling the apparent inconsistency. On the one hand, Congress' inability to respond rapidly to changing conditions of knowledge and technology made it desirable to create a power of amendment at the agency level. 13 On the other hand, strong fears were voiced by representatives of both industry and labor that a freely exercised power of amendment might result in an unpredictable and capricious administration of the statute, which would redound to the benefit of no one. 14
The mandatory standard concept evolved to deal with this dilemma combines a comprehensive set of "interim" mandatory standards, promulgated by Congress, 15 with elaborate consultative procedures for the formulation of additional "improved" mandatory standards. These § 101 procedures, 16 which may never be used to decrease the level of protection afforded miners under an existing standard, 17 prescribe the precise manner in which the Secretary 18 is to promulgate new mandatory standards. The most important aspect is the requirement of consultation with knowledgeable representatives of federal and state government, industry and labor. 19 This goes far beyond the usual requirements of public notice and opportunity for comment set forth in the Administrative Procedure Act, and represents the Congressional answer to the fears expressed by industry and labor of the prospect of unchecked federal administrative discretion in the field. These rather unique requirements of the Act are an important part of the ultimate legislative compromise, and must be given their due weight.
In addition to these interim and improved mandatory standards, the Act also provides for several types of promulgations that are not bound by the procedures of § 101. A substantial number of the interim standards impose requirements whose actual terms are to be set in part by action of the Secretary. 20 The statute makes clear that in setting these terms, it is the Administrative Procedure Act rather than the more stringent provisions of § 101 which governs. 21 In the case of many other interim standards, regulations have been adopted, again without resort to the § 101 procedures, which make more specific and definite requirements enunciated in the standard itself. 22 Precise definition of terms used is a common type of such regulation. Finally, various requirements pertaining to each mine have been promulgated pursuant to specific mandatory standards which require the operator to adopt plans of various types. 23 These plans appear to be developed by informal negotiations between the operator and the Secretary's representative, without any pretence of compliance with § 101.
The final important element of the statutory scheme is the enforcement machinery by which the mine operators are compelled to obey the health and safety requirements otherwise promulgated. The statute establishes three kinds of enforcement remedies withdrawal, civil fine, and criminal penalties and sets up procedures governing the application of each. It provides for remedial actions of increasing severity, as the nature of the conduct being redressed grows more serious. But except insofar as § 104(a) allows for immediate withdrawal in any instance of imminent danger, virtually all 24 of the enforcement provisions of the Act require violation of a mandatory health or safety standard to bring them into play. Section 3(1) of the Act tells us that mandatory standard "means" the interim standards set out in the Act, and any improved standards promulgated under the § 101 procedures. 25 The problem before us is to determine whether this definition, which seems to exclude all requirements neither contained in the original statute nor promulgated under § 101, renders unenforceable the term of the ventilation plan which is at issue here. 26
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