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COUNCIL OF THE SOUTHERN MOUNTAINS, INC. v. DONOVAN

May 19, 1981

COUNCIL OF the SOUTHERN MOUNTAINS, INC., et al., Plaintiffs,
v.
Ray DONOVAN, Defendant, Peabody Coal Company, et al., Intervenors-Defendants



The opinion of the court was delivered by: GREENE

This is an action under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (the Act), in which plaintiffs, who are authorized representatives of miners under the Act, allege that the Secretary of Labor has failed to carry out certain of his obligations under the statute. More specifically, plaintiffs seek a judgment declaring that the Secretary is failing to issue or to cause to be issued citations and closure orders to mine operators in all situations in which section 104(d) of the Act, 30 U.S.C. § 814(d), requires them to be issued. Plaintiffs also seek injunctive relief, requiring the Secretary to issue the proper citations and orders. *fn1" The action is now before the Court on motions for summary judgment by defendant and defendants-intervenors. *fn2" Because this Court lacks jurisdiction under the statutory review scheme provided by the Act, and because the controversy is not ripe for judicial resolution, it will grant the motions for summary judgment and dismiss the complaint.

 I

 Insofar as relevant here, the law contemplates two different types of citations for violations of mandatory health or safety standards.

 Section 104(a), 30 U.S.C. § 814(a), provides that

 
If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this chapter has violated this chapter, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this chapter, he shall, with reasonable promptness, issue a citation to the operator.

 A section 104(a) citation also fixes a reasonable time for the abatement of the violation. If upon a follow-up inspection, the violation has not been abated within the time fixed in the citation (and the inspector determines that time should not be extended), an order is issued requiring that all persons be withdrawn from the areas of the mine affected by the violation. Section 104(b), 30 U.S.C. § 814(b).

 Another type of citation is that authorized by section 104(d)(1), 30 U.S.C. § 814(d)(1), which states that

 
If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation ... to be withdrawn from, and to be prohibited from entering (the affected area).

 There are two prime differences between a citation under section 104(a) and a citation under section 104(d). First, a § 104(a) citation is required to be issued if the mine inspector believes that the mine operator has violated the health and safety standards, whereas a § 104(d) citation is required to be issued if the inspector (a) finds a violation and (b) makes findings of "significant and substantial hazard" and of "unwarrantable failure" on the part of the mine operator. *fn3" Second, while upon issuance of a section 104(a) citation the mine will not be shut down if the violation is corrected during the time fixed by that citation, when a section 104(d) citation is issued the mine is required automatically to be shut down if a second violation caused by an "unwarrantable failure" to comply with standards is found during the same or subsequent inspections. Obviously, then, section 104(d) is the far more efficacious yet drastic remedy.

 The basic claim made by plaintiffs is that in the period between May 30, 1978 and April 4, 1979, the Secretary issued fewer than 1,800 section 104(d) citations, while making the requisite findings for the issuance of such citations in over 70,000 instances. These section 104(d) findings, it is said, were made in the process of determining the amount of civil penalty to be assessed to mine operators who had received section 104(a) citations.

 The procedural framework in which these determinations were made operates as follows. The Federal Mine Safety and Health Review Commission, *fn4" is authorized to assess various penalties, *fn5" based on proposals made by the Secretary, and taking into consideration a number of factors, including whether the operator was negligent and the gravity of the violation. *fn6" In preparation for making a proposed assessment under this section, a member of the Assessment Office of the Mine Safety and Health Administration examines the report of the inspector who issued the original citation and on the basis of that report he makes his own findings, including findings as to the negligence of the operator and the gravity of the cited violation. See 30 C.F.R. Part 100.

 Plaintiffs claim that the portions of the assessor's report dealing with operator negligence and gravity of violation substantially correspond to the 104(d) findings of "significant and substantial hazard" and "unwarrantable failure." If that be true, they argue, whenever an assessor makes affirmative findings under the negligence and gravity categories in his report, then for all legal and ...


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