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LUCAS v. MORTON

May 15, 1973

W. A. LUCAS and A. S. Lucas, trading and doing business as Lucas Coal Company, et al., Plaintiffs,
v.
Rogers C. B. MORTON, Secretary of the Interior, et al., Defendants



The opinion of the court was delivered by: WEIS

The plaintiffs are operators of surface coal mines (strip mines) located in Western Pennsylvania at whose behest this Three-Judge Court has been convened to consider challenges to the constitutionality of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.A. ยง 801 et seq. Certain features of the Act and its administration have come under attack by the plaintiffs who allege that:

1. The statute is discriminatory because its provisions include those applicable to deep coal mines as well as strip mines;
 
2. The statutory plan of enforcement denies due process;
 
3. Inadequate training of inspectors who administer the Act has resulted in harassment and unnecessary loss to the plaintiffs.

 The named plaintiffs are all independent owners and operators of strip mines located in Butler and Mercer Counties, Pennsylvania, constituting about 40 percent of small mine operators in these areas. During 1971 they produced a total of approximately 900,000 tons of coal.

 Between October 6, 1971 and October 12, 1971, plaintiffs were served with notices of violations pursuant to Section 104(b) of the Act. These notices, which are quite similar to the usual form of citation, were based upon alleged violations of Mandatory Safety Standards for Surface Coal Mines and Surface Work Areas of Underground Coal Mines enacted by the Secretary of the Interior pursuant to authority granted by the Act. The specific notices, which plaintiffs have chosen to contest here, deal with failures to have adequate roll protection and audible backup warning devices on vehicles utilized in strip mine operations.

 Pursuant to Section 105 *fn1" of the Act, the plaintiffs filed applications for review of the notices and hearings were held before authorized agency personnel on June 20 and June 22, 1972. No decisions have yet been rendered in those cases. At the time the citations or notices were issued, departmental representatives set initial periods of not exceeding 30 days within which the violations were to be abated.

 Hearings have not been scheduled on all of the notices as yet and no "orders of withdrawal", which is the sanction for failure to abate the violation, have been issued pursuant to agreement between the parties pending the decision in this case.

 In October of 1971 Lucas Coal Company was also served with an order of withdrawal pursuant to Section 104(a) *fn2" of the Act, which requires such action when an imminent danger exists. This order was later vacated after an appeal through the administrative procedures of the Department of the Interior. The plaintiffs are not now concerned with this particular incident and do not contend that Section 104(a) is unconstitutional since it may be invoked only when danger is said to be imminent.

 The Federal Coal Mine Health and Safety Act of 1969, which became effective on March 30, 1970, was designed to promulgate and provide enforcement of mandatory health and safety standards aimed at reductions in the number of coal mine accidents and incidents of occupational disease.

 Title I of the Act establishes the procedure for preparation of health and safety standards and their publication. On May 22, 1971 pursuant to this direction there were disseminated in the Federal Registry (36 F.R. 9364-Part 3), Part 77 -- Mandatory Safety Standards, Surface Coal Mines and Work Areas of Underground Coal Mines. Revisions were published on July 15, 1971 in 36 F.R. 13142.

 The main thrust of plaintiffs' attack centers on the provisions for enforcement set out in Section 104(b) which plaintiffs claim permit the inspectors to shut down the mine by means of a withdrawal order before the operator has an opportunity to have a hearing on notice of an alleged violation. Plaintiffs assert that a withdrawal order in effect deprives them of the opportunity to mine coal, to use their property, and thus results in severe financial loss. They contend that elementary due process requires that they be given the opportunity to be heard before a penalty is inflicted upon them.


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