The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
The above-entitled matters having been consolidated and come on for trial on the merits on December 21, 1973; the Court having considered the pleadings, the motions for permanent injunctions filed by plaintiffs in both actions; plaintiffs' memoranda in support of said motion and supporting affidavits, defendant's memorandum in opposition to said motion, the memoranda and supporting affidavits filed by plaintiffs and defendant for trial, oral argument of counsel, and all proceedings heretofore had herein, and the Court being fully advised in the premises, now makes its findings of fact and conclusions of law as follows:
2. In C.A. 2054-73, the plaintiff Association of Bituminous Contractors, Inc., is an association of construction companies that construct coal mines. The remaining 14 plaintiffs in C.A. 2054-73 are general and independent contractors who engage in the construction of coal mines.
3. Defendant Peter J. Brennan is the Secretary of the United States Department of Labor. In that capacity, he has executive responsibility for the implementation, operation and enforcement of Section 415 and Part C of Title IV of the Federal Coal Mine Health and Safety Act of 1969.
4. The statutes involved are:
(a) the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970), as amended (hereinafter cited as the Act). Title IV of the Act, 30 U.S.C. § 901 et seq., as amended, 30 U.S.C. § 901 et seq. (Supp. II, 1972), provides benefits to coal miners who are totally disabled due to pneumoconiosis, and to certain surviving dependents of coal miners whose death is due to pneumoconiosis or who are totally disabled by coal workers' pneumoconiosis at the time of their deaths (Act, Section 401); and
(b) the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq. (Supp. II, 1972), amending 30 U.S.C. § 901 et seq. (1970), which amended certain provisions of Title IV of the Act and added new provisions to that title in order to remedy certain deficiencies in Title IV and its administration.
5. "Pneumoconiosis" is defined in Section 402(b) of the Act, 30 U.S.C. § 902(b), as "a chronic dust disease of the lung arising out of employment in a coal mine." This definition is applicable to both Parts B and C of Title IV of the Act. Pneumoconiosis, sometimes called "black lung" disease, is a severely disabling and often fatal disease which once contracted, may progress to disablement without further exposure to coal dust.
"Total disability" is defined in Section 402(f) of the Act as having
the meaning given it by regulations of the Secretary of Health, Education, and Welfare except that such regulations shall provide that a miner shall be considered totally disabled when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time. Such regulations shall not provide more restrictive criteria than those applicable under Section 223(d) of the Social Security Act.
This definition of "total disability" is applicable to both Parts B and C of Title IV of the Act. The Secretary of Health, Education and Welfare has published the definition of ...