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Rushton Mining Co. v. Morton

June 30, 1975

RUSHTON MINING COMPANY, PETITIONER
v.
ROGERS C. B. MORTON, SECRETARY OF THE INTERIOR, RESPONDENT, UNITED MINE WORKERS OF AMERICA, DISTRICT NO. 2, LOCAL UNION 1520, INTERVENOR



ON PETITION FOR REVIEW OF DECISIONS OF DEPARTMENT OF THE INTERIOR BOARD OF MINE OPERATIONS APPEALS.

Van Dusen, Adams and Garth, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

Having exhausted its administrative remedies, the Rushton Mining Company petitions this court, pursuant to 30 U.S.C.A. § 816(a) (1971),*fn1 to set aside two decisions of the Interior Board of Mine Operations Appeals, dated June 20 and June 27, 1974. In both decisions the Board determined that miners idled by § 814(b) withdrawal orders are entitled to partial compensation under the first two sentences of § 820(a), even if the § 814(b) orders were subsequently vacated. The petitioner believes these decisions to be inconsistent with the Federal Coal Mine and Health Safety Act of 1969, 30 U.S.C.A. § 801 et seq. (1971), and, even if consistent with that Act, to deprive the petitioner of property without due process of law. We disagree, and accordingly affirm both decisions of the Board.

Congress enacted the Mine Safety Act to protect the "most precious resource" of the mining industry, the miner. 30 U.S.C.A. § 801(a) (1971). To achieve that end, Congress directed the Secretary of the Interior to promulgate mandatory safety standards for coal mines, § 811(a). As part of the enforcement of these standards, Congress required authorized representatives of the Secretary to "make frequent inspections" of coal mines. § 813(a). If such an inspection reveals that "an imminent danger" exists, the Act requires the inspector to

". . . determine the area throughout which such danger exists, and thereupon . . . issue forthwith an order requiring the operator of the mine or his agent to cause immediately all persons, except those referred to in subsection (d) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger no longer exists."

§ 814(a). If the inspector finds a violation of a mandatory health or safety standard, which violation does not create an imminent danger, he fixes a reasonable period of time within which the mine operator must comply with the standard. The deadline may be extended, but when the inspector finds further extensions unwarranted, the Act requires him to

". . . find the extent of the area affected by the violation and . . . promptly issue an order requiring the operator of such mine or his agent to cause immediately all persons, except those referred to in subsection (d) of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that the violation has been abated."

§ 814(b).

The issuance of a § 814 order, in turn, triggers other provisions in the Act. The mine operator becomes liable under the civil penalty provisions of § 819(a)(1). Under § 820(a), the operator is also required to compensate the miners idled by the withdrawal order. The compensation is limited to the wages due the miners for the balance of the shift during which they were idled and for four hours of the next shift, if it also was idled by the order. The miners may apply to the Board of Mine Operations Appeals for such compensation, § 815; 43 C.F.R. § 4.500(a)(1) (Rev. Ed. Oct. 1, 1974), which application will be heard by an administrative law judge, id. § 4.580. Under the same provisions, the mine operator may apply to the Board to vacate, modify, or terminate the withdrawal order.

The question presented by these petitions is whether the Board may order compensation under § 820(a) for miners idled by a withdrawal order which has been vacated subsequent to such loss of work. Two separate withdrawal orders are involved.*fn2 Events leading to the first of the withdrawal orders began on September 15, 1970, when an inspector issued a § 814(b) notice of violation to the Rushton mine. He found the mine to be in violation of § 877(f)(1) and its implementing regulations, 30 C.F.R. § 75.1704-1, which require two separate and distinct escapeways from each working section of the mine. The mine had a "double compartment slope," the upper and lower decks of which were separated by incombustible materials, but the Bureau of Mines (now the Mine Enforcement and Safety Administration (MESA)) in 1970 had informally interpreted § 877(f)(1) as prohibiting the designation of the upper and lower decks of a double compartment slope as separate and distinct escape facilities. The time for abatement of the violation by construction of a man hoist facility in the intake air shaft was extended for two and one-half years, but on February 8, 1973, the inspector found that the time for abatement should no longer be extended and issued a § 814(b) withdrawal order. The order idled 29 miners, who lost $608.13 in compensable wages under § 820(a).

The union applied to the Board for the idled miners' compensation and the operator applied to the Board to vacate the withdrawal order. The administrative law judge, a member of the Hearings Division of the Office of Hearings and Appeals of the Department of the Interior, consolidated the two applications.*fn3 In a December 7, 1973, Decision and Order, he found that MESA had issued on February 15, 1973, a formal interpretation of § 877(f)(1) under which the Rushton Mine's double compartment slope became acceptable. He also found that the operator's designation of an air shaft as an escape facility on its maps, when in fact the shaft was inadequate for that purpose, was at the instigation of, and under the approval of, MESA. For these reasons, he vacated the § 814(b) notice and withdrawal orders. Nevertheless, he sustained the miners' claims for compensation of wages lost as a result of the withdrawal order on the ground that, even though the order was subsequently vacated, the inspector had acted in good faith, within the scope of his authority, and not ultra vires, in issuing the order.*fn4 The administrative law judge's compensation order was appealed to the Interior Board of Mine Operations Appeals by the operator; on June 20, 1974, the Board affirmed on the ground of its decision in United Mine Workers v. CF&I Steel Corp., 3 IBMA 187 (1974), aff'd, CF&I Steel Corp. v. Morton, 516 F.2d 868 (10th Cir. 1975).*fn4a From that decision, the petitioner timely appeals to this court.

The second withdrawal order before us was issued under § 814(b) on September 8, 1972, after the petitioner had failed to comply with a § 814(b) notice issued on September 5, and modified on September 6, which had required the petitioner to correct the torque on certain roof bolts and to install additional roof bolts. As a result of the withdrawal order, eight miners were idled, becoming entitled to $159.94 in compensation under § 820(a). Rushton appealed the withdrawal order to the subdistrict office of the Bureau of Mines, which on September 11 sent two inspectors to investigate the matter. On September 13, the original inspector issued a notice vacating his September 8 withdrawal order, commenting only that it had been "issued in error."*fn5 The union applied to the Board for the idled miners' compensation. In a February 20, 1974, decision, the administrative law judge in the Hearings Division denied the application, but his decision was reversed by the Interior Board ...


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