Section 109(a)(1) of the Federal Coal Mine Health and Safety Act
of 1969 requires the Secretary of the Interior to assess a civil
monetary penalty against a coal mine operator for each violation of
the mandatory health and safety standards prescribed by the Act and
other provisions. But under § 109(a)(3) a penalty may be assessed
only after the operator
"has been given an opportunity for a public hearing and the
Secretary has determined, by decision incorporating his findings of
fact therein, that a violation did occur, and the amount of the
penalty which is warranted. . . ."
Implementing regulations provide that assessment officers assess
a penalty based on a notice of violation issued by mine inspectors
and a penalty schedule graduated according to the seriousness of
the violation, and further provide that, if the mine operator fails
to make a timely protest against the proposed assessment and to
request adjudication, he is deemed to waive his right to protest,
including his right to formal adjudication and opportunity for
hearing, and the proposed assessment becomes the Secretary's "final
assessment." An unpaid penalty is enforceable under the Act only by
way of subsequent judicial hearing in a district court in which the
operator is entitled to a trial
de novo as to the amount
of the penalty. Petitioners sought injunctive and declaratory
relief on the ground that the summary civil penalty assessment
procedures permitted by the regulations violated the Act's
procedural requirements. The District Court upheld this contention,
ruling that the Secretary must make express findings of fact,
whether or not the operator requests a hearing. The Court of
Appeals reversed.
Held: The language of § 109(a)(3), especially when read
in light of its legislative history, requires the Secretary to make
formal findings of fact as a predicate for a penalty assessment
order only when the mine operator exercises his
Page 423 U. S. 389
statutory right to request an administrative hearing on the
factual issues relating to the penalty. Pp.
423 U. S.
397-402.
(a) The word "opportunity," as used in § 109(a)(3), would be
meaningless if the statute contemplated formal adjudicated findings
whether or not a requested evidentiary hearing is held, and, absent
a request for a hearing, the Secretary has a sufficient factual
predicate for a penalty assessment based on the reports of the
qualified inspectors who find violations; when the assessment
officers fix penalties, as the Secretary's "authorized
representatives," the operator may still have the penalty reviewed
in the district court. P.
423 U. S.
398.
(b) The requirement for a formal hearing under § 109(a)(3) is
keyed to a request, and the requirement for formal findings is
keyed to the same request. P.
423 U. S.
398.
(c) Such a reading of the statute comports with the Act's
purpose of imposing stricter coal mine regulation to prevent
accidents and disasters; the deterrent provided by monetary
sanctions is essential to that purpose, and effective enforcement
of the Act would be weakened were the Secretary required to make
findings of fact for every penalty assessment including those cases
in which the mine operator did not request a hearing, thus
indicating no disagreement with the Secretary's proposed
determination. Pp.
423 U. S.
398-399.
161 U.S.App.D.C. 68, 494 F.2d 87, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except STEVENS, J., who took no part in the
consideration or decision of the case.
Page 423 U. S. 390
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This case [
Footnote 1]
presents the question whether the Federal Coal Mine Health and
Safety Act of 1969, 83 Stat. 742, 30 U.S.C. § 801
et seq.,
requires the Secretary of the Interior to prepare a decision with
formal findings of fact before assessing a civil penalty against a
mine operator absent a request by the mine operator for an
administrative hearing, the penalty being enforceable only by way
of a subsequent judicial proceeding in which the operator is
entitled to a trial
de novo as to the amount of the
penalty.
The National Independent Coal Operators' Association sought
declaratory and injunctive relief on the ground that certain civil
penalty assessment regulations utilized by the Secretary violated
the procedural requirements of the Act. The Court of Appeals for
the District of Columbia Circuit held that the regulations did not
violate the Act. [
Footnote 2]
National Independent Coal Operators' Assn. v. Morton, 161
U.S.App.D.C. 68, 494 F.2d 987 (1974).
We granted certiorari, 420 U.S. 906 (1975), to resolve the
apparent conflict between the District of Columbia Circuit and the
Third Circuit holding in
Morton v. Delta Mining, Inc., 495
F.2d 38 (1974), reversed and remanded,
post, p.
423 U. S. 403.
Page 423 U. S. 391
(1)
The statutory provision in question, § 109(a)(3), 30 U.S.C. §
819(a)(3), is part of the enforcement scheme of the Federal Coal
Mine Health and Safety Act of 1969. The Act prescribes health and
safety standards for the protection of coal miners, Titles II and
III, 30 U.S.C. § 841
et seq.; it requires coal mine
operators and miners to comply with the standards. § 2(g)(2), 30
U.S.C. § 801(g)(2).
Section 103 of the Act, 30 U.S.C. § 813, requires the Secretary
to conduct continuing surveillance of mines by inspectors. Among
the purposes of the inspections are finding imminently dangerous
conditions and violations of mandatory health or safety standards.
Section 104, 30 U.S.C. § 814, provides procedures for abating the
conditions found by the inspectors. If an imminent danger is found,
the inspector is required to issue a withdrawal order compelling
the mine operator to withdraw all persons from the danger area. If
a violation of a mandatory standard is found that is not imminently
dangerous, the inspector issues a notice to the operator fixing a
reasonable time for its abatement. If the violation is not abated
and the time for abatement is not extended, the inspector then
issues a withdrawal order. Withdrawal orders are also issued for
any "unwarrantable failure" of mine operators to comply with the
standards. The notices and orders issued contain a detailed
description of the dangerous conditions or violations and their
locations. The notices must be in writing and given promptly to the
mine operators.
Under § 105, 30 U.S.C. § 815, an operator may apply to the
Secretary for review of the factual basis of any order or notice
issued under § 104, or for review of the amount of time allowed for
abatement of violations. Upon application from a mine operator the
Secretary
Page 423 U. S. 392
makes whatever investigation he deems appropriate; an
opportunity for a public hearing is provided. Hearings are subject
to § 5 of the Administrative Procedure Act, 5 U.S.C. § 554, and
following the hearing the Secretary must make findings of fact.
Section 105 also requires that actions by the Secretary be taken
promptly because of the urgent need for prompt decision. The orders
issued by the Secretary under this section are subject to judicial
review under § 106, 30 U.S.C. § 816, by a court of appeals.
As part of the enforcement scheme, the Act requires the
Secretary to assess and collect civil penalties. Section 109(a)(1)
, 30 U.S.C. § 819(a)(1) , subjects mine operators to civil
penalties not exceeding $10,000 for each violation of a mandatory
standard or other provision of the Act. In determining the amount
of the penalty, § 109(a)(1) requires the Secretary to consider
"the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on
the operator's ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of a
violation."
The provision in question, § 109(a)(3), as noted above,
authorizes the Secretary to assess a civil penalty only after the
operator charged with a violation
"has been given an opportunity for a public hearing and the
Secretary has determined, by decision incorporating his findings of
fact therein, that a violation did occur, and the amount of the
penalty which is warranted. . . ."
Hearings under this section are to be consolidated with other
proceedings when appropriate. They must be of record
Page 423 U. S. 393
and subject to provisions of the Administrative Procedure Act, 5
U.S.C. § 554.
If the operator does not pay the penalty assessed, the Secretary
is required, pursuant to § 109(a)(4), 30 U.S.C. § 819(a)(4), to
petition for judicial enforcement of the assessment in the district
court for the district in which the mine is located. At that stage,
the court must resolve the issues relevant to the amount of the
penalty in a
de novo proceeding with a jury trial if
requested. The trial
de novo with a jury is not available
for review of issues of fact which "were or could have been
litigated" in the court of appeals under § 106. [
Footnote 3]
(2)
We are concerned in this case with the regulations the Secretary
has adopted to govern only one part of this statutory scheme: the
assessment of penalties under § 109(a)(3). When the Secretary
initially implemented the Act, he published regulations that
provided for civil penalty assessments to be determined by a
hearing examiner, with a right of appeal to a departmental appeals
board. 30 CFR pt. 301 (1971), recodified, 43 CFR § 4.540
et
seq. (1972). Nine months later, due to the large numbers of
violations charged (approximately 80,000 or more per year), the
Secretary adopted the regulations contested here. 30 CFR pt. 100
(1972). [
Footnote 4] These
regulations provide
Page 423 U. S. 394
that assessment officers assess a penalty based on a notice of
violation issued by mine inspectors and a penalty schedule
graduated according to the seriousness of the violation. [
Footnote 5] The pt. 100 procedures
follow the mandate of § 109(a)(1) as to the criteria to be applied
in determining the amount of the proposed penalty for an operator.
30 CFR § 100.4(C). [
Footnote
6]
The regulations also provide that the operators are to be
advised when they receive original or reissued proposed orders that
they have 15 working days from the receipt of the order to "protest
the proposed assessment, either partly or in its entirety." If an
operator fails to make a timely protest and request adjudication,
he is "deemed to have waived his right of protest including his
right of formal adjudication and opportunity for hearing. . . ."
The proposed assessment order then
Page 423 U. S. 395
becomes the "final assessment order of the Secretary." 30 CFR §
100.4 (d-h). [
Footnote 7]
In any case in which an operator makes a timely request for a
formal hearing, by so indicating in his protest, or in response to
a reissued or amended proposed assessment order, the assessment
officer is required to forward the matter to the Office of the
Solicitor, Department of the Interior; a petition to assess a
penalty can then be filed by the Solicitor with the Department's
Office of Hearings and Appeals. 30 CFR § 100.4(i)(1); 43 CFR §
4.540(a). The petition is served on the operator who then has an
opportunity to answer and secure a public hearing. 30 CFR §
100.4(i)(2). A hearing
de novo is conducted and the
examiner is free to assess a different penalty. [
Footnote 8] 30 CFR § 100.4(i)(4). The Bureau
of Mines, represented by the Office of the Solicitor, has the
burden of proving the penalty by a preponderance of the evidence.
43 CFR § 4.587. The regulations provide that the hearing examiner
consider the statutory criteria. 43 CFR § 4.546.
Page 423 U. S. 396
The decision is subject to review by the Secretary's delegate,
the Board of Mine Operations Appeals. 43 CFR §§ 4.1(b)(4),
4.500(a)(2), 4.600.
Whether or not the operator requests formal adjudication, he may
obtain
de novo judicial review of the amount of the
penalty by refusing to pay it and awaiting the Secretary's
enforcement action in the district court. § 109(a)(4), 30 U.S.C. §
819(a)(4).
(3)
The National Independent Coal Operators' Association and various
operators brought suit against the Secretary in the United States
District Court for the District of Columbia to enjoin the use of
the pt. 100 regulations. The court granted the Association's motion
for summary judgment, holding that the summary procedures were not
authorized by § 109(a) of the Act.
357 F.
Supp. 509 (1973). The court noted that there were no written
guidelines within the assessment office to guide the assessment
officers in evaluating or applying the statutory criteria for
penalty assessment. The court held that the Secretary must make
express findings of fact whether or not a hearing is requested. The
court believed that requiring a mine operator to request a hearing
"would shift the initial burden to the mine operator."
Id.
at 512.
The Court of Appeals for the District of Columbia Circuit
reversed, holding that the Secretary need not render a formal
decision incorporating findings of fact; it held that, absent a
request for a hearing, the Secretary is entitled to conclude that
the operator does not dispute the proposed order, including the
factual basis of the violation. In the view of that court, a
"decision incorporating his findings of fact" with findings and
conclusions is required only if a hearing is requested and takes
place; otherwise, any findings of fact would consist of
essentially
Page 423 U. S. 397
the same information already recited in the proposed assessment
order, and would be a meaningless duplication. The court also noted
that the legislative history of the Act supports an interpretation
that the Secretary's findings are not required unless the operator
requests a hearing; however, when a hearing is requested, the
burden of proof remains with the Secretary. 161 U.S.App.D.C. 68,
494 F.2d 987 (1974).
(4)
Under the Act, a mine operator plainly has a right to notice of
violations and proposed penalties; it is equally clear that an
operator has a right to be heard, if a hearing is requested. In
this Court, the mine operators continue to urge that the Secretary
may not assess a civil penalty without making formal "findings of
fact," even though no hearing was requested as to the violation
charged and the proposed order.
Section 109(a)(3), as previously noted, provides:
"A civil penalty shall be assessed by the Secretary only after
the person charged with a violation under this Act has been given
an opportunity for a public hearing and the Secretary has
determined, by decision incorporating his findings of fact therein,
that a violation did occur, and the amount of the penalty which is
warranted. . . ."
The operators argue that a penalty assessment itself is an
adjudicatory function, and, hence, the Secretary must make a formal
"decision incorporating his findings of fact" even when an operator
has not requested a hearing on the violation issue. In short, what
they argue for is the same type of formal findings of fact that are
the usual product of the adversary hearing to which they have an
absolute right, but which was waived by failure to make a
request.
Page 423 U. S. 398
Section 109(a)(3) provides the mine operators with no more than
"an opportunity" for a hearing. The word "opportunity" would be
meaningless if the statute contemplated formal adjudicated findings
whether or not a requested evidentiary hearing is held. Absent a
request, the Secretary has a sufficient factual predicate for the
assessment of a penalty based on the reports of the trained and
experienced inspectors who find violations; when the assessment
officers fix penalties as the Secretary's "authorized
representatives," the operators may still have review of the
penalty in the district court. [
Footnote 9]
See Morton v. Whitaker, Civ. No.
74.96 (ED Ky., Jan. 14, 1975) (appeal pending in CA6).
We therefore agree with the Court of Appeals that the language
of the statute, especially when read in light of its legislative
history, requires the Secretary to make formal findings of fact
specified in § 109(a)(3) only when the mine operator requests a
hearing. The requirement for a formal hearing under § 109(a)(3) is
keyed to a request, and the requirement for formal findings is
keyed to the same request.
This reading of the statute plainly comports with the purpose of
the Act. Congressional attention was focused on the need for
stricter coal mine regulations by a 1968 explosion in a Farmington,
W.Va., mine which killed 78 miners, but Congress also recognized
that an inordinate number of miners lose their lives in day-to-day
accidents other than multi-disaster situations. The Act was seen as
a major step in preventing death and
Page 423 U. S. 399
injury in mines. H.R.Rep. No. 91-563, pp. 1-3 (1969). The need
for stricter regulation of coal mines was commented on by President
Truman when he signed the 1952 amendment to the Federal Coal Mine
Safety Act, 66 Stat. 692. In approving that measure into law, he
called the attention of Congress to its flaws:
"The measure contains complex procedural provisions relating to
inspections, appeals, and the postponing of orders which I believe
will make it exceedingly difficult, if not impossible, for those
charged with the administration of the act to carry out an
effective enforcement program."
Congress noted President Truman's comments when it reported the
1969 Act. S.Rep. No. 91-411, p. 5 (1969). Effective enforcement of
the Act would be weakened if the Secretary were required to make
findings of fact for every penalty assessment including those cases
in which the mine operator did not request a hearing, and thereby
indicated no disagreement with the Secretary's proposed
determination. While a protest by a mine operator may trigger an
administrative reexamination, the protest is not the equivalent of
a request for a hearing. When no request for a hearing is made, the
operator has, in effect, voluntarily defaulted and abandoned the
right to a hearing and findings of fact on the factual basis of the
violation and the penalty.
The Court of Appeals for the District of Columbia Circuit
regarded § 109 as possibly ambiguous, and turned to the legislative
history. Assuming,
arguendo, that the statute is
ambiguous, we read that history as supporting the result reached by
the Court of Appeals. The bills passed by the Senate and House each
called for hearings only if requested. The House bill provided:
"Upon written request made by an operator within thirty days
after receipt of an order assessing a
Page 423 U. S. 400
penalty under this section, the Secretary
shall afford such
operator an opportunity for a hearing and,
in accordance
with the request, determine by decision whether or not a
violation did occur or whether the amount of the penalty is
warranted or should be compromised."
H.R. 13950, 91st Cong., 1st Sess., § 109(b) (1969). (Emphasis
added.) The Senate bill read:
"An order assessing a civil penalty under this subsection shall
be issued by the Secretary only after the person against whom the
order is issued has been
given an opportunity for a
hearing and the Secretary has determined by decision incorporating
findings of fact
based on the record of such hearing
whether or not a violation did occur and the amount of the penalty,
if any, which is warranted. Section 554 of title 5 of the United
States Code shall apply to any such hearing and decision."
S. 2917, 91st Cong., 1st Sess., § 308(a)(3) (1969). (Emphasis
added.) Thus it is clear that, under both bills the requirement for
a formal decision with findings was contingent on the operator's
request for a hearing.
Both bills were referred to a Conference Committee to resolve
differences. The Conference Committee adopted the Senate version
but deleted the second italicized phrase. That change did not alter
the requirement that, if findings of fact are desired, a hearing
must be requested. The Conference Committee explained § 109 as
follows:
"
Both the Senate bill and the House amendment provided an
opportunity for a hearing in assessing such penalties, but the
Senate bill required a record hearing under 5 U.S.C. [§] 554. The
conference substitute adopts the Senate provision with the
Page 423 U. S. 401
added provision that, where appropriate, such as in the case of
an appeal from a withdrawal order, an effort should be made to
consolidate the hearings. The commencement of such proceedings,
however, shall not stay any notice or order involving a violation
of a standard."
H.R.Conf.Rep. No. 91-761, p. 71 (1969). (Emphasis added.) No
mention was made of the language deleted from the Senate bill or
the similar language contained in the House bill. A change to
require findings of fact without a request for a hearing would be a
significant matter that would not likely have escaped attention;
such a change would have called for explanation. [
Footnote 10]
The importance of § 109 in the enforcement of the Act cannot be
overstated. Section 109 provides a strong incentive for compliance
with the mandatory health and safety standards. That the violations
of the Act have been abated or miners withdrawn from the dangerous
area before § 109 comes into effect is not dispositive; if a mine
operator does not also face a monetary penalty for violations, he
has little incentive to eliminate dangers until directed to do so
by a mine inspector. The inspections may be as infrequent as four a
year. A major objective of Congress was prevention of accidents and
disasters; the deterrence provided by monetary sanctions is
essential to that objective.
We conclude, as did the Court of Appeals, that the Federal Coal
Mine Health and Safety Act of 1969 does not mandate a formal
decision with findings as a predicate for a penalty assessment
order unless the mine
Page 423 U. S. 402
operator exercises his statutory right to request a hearing on
the factual issues relating to the penalty, and the judgment of the
Court of Appeals is therefore
Affirmed.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
Consolidated with No. 7521,
Kleppe v. Delta Mining, Inc.,
post, p. 403.
[
Footnote 2]
In the companion case,
supra, three mine operators in a
consolidated action raised the same challenge as a defense when the
Secretary sought judicial enforcement of assessment orders in a
suit, where, under the Act, the operators had a right to a trial
de novo as to the amount of the penalties. The Court of
Appeals for the Third Circuit noted the District of Columbia
Circuit's holding but held that the regulations were invalid for
failure to require findings of fact, rejecting the Secretary's
contention that such findings are required only when an
administrative hearing is requested by a mine operator.
[
Footnote 3]
Respondents have suggested that trial
de novo is
available on the factual basis of the violation as well as on the
amount of the penalty. The statutory scheme is less than clear on
this matter.
Compare § 106
with § 109(a).
See
Eastern Associated Coal Corp. v. Interior Bd. of Mine Operations
Appeals, 491 F.2d 277 (CA4 1974). We need not reach the issue
to dispose of this case.
[
Footnote 4]
Those regulations have been reissued, 39 Fed.Reg. 27558-27561
(1974), since these suits were initiated. The mine operators in the
companion case,
Kleppe v. Delta Mining, Inc., post, p.
423 U. S. 403,
argue that this case is moot. The case is not moot, because there
are assessments under the contested regulations awaiting
enforcement and because the new regulations also do not provide a
hearing unless one is requested.
Unless otherwise indicated, all citations to the Code of Federal
Regulations throughout this opinion are to the regulations
effective at the time this suit was initiated (Jan. 1, 1972, for 30
CFR, and Oct. 1, 1972, for 43 CFR).
[
Footnote 5]
Section 100.2(b) of the regulations states that the amount of
proposed civil penalty
"shall be within guidelines established by the Secretary
(
see Appendix A to this part) and revised periodically in
the light of experience gained under the Act. . . ."
30 CFR § 100.2(b). Appendix A, in effect at the time of this
suit, provided a range between $5,000 and $10,000 for violations
resulting in the issuance of imminent danger withdrawal orders
(under § 104(a) of the Act); a range between $1,000 and $5,000 for
violations resulting in the issuance of other withdrawal orders
(under §§ 104(b), (c), (h), and (i) of the Act); a range between
$100 and $1,000 for "serious violations"; and a range between $25
and $500 for other violations.
[
Footnote 6]
A penalty schedule with formulas for considering the six
criteria was promulgated after these suits were filed. 30 CFR §
100.3 (1975).
[
Footnote 7]
The mine operators in the companion case contend that these
orders are not final, since the regulations provide only that, the
orders become final if accepted. 30 CFR § 100.4(h). The regulations
provide that a hearing can be requested but do not specify what
happens if neither the orders are accepted nor a hearing is
requested. This contention is without merit. The order is final.
See 30 CFR § 100.4(e). The regulation is not
misleading.
[
Footnote 8]
These uncontested regulations provide that, if an operator fails
to file a preliminary statement or response to a prehearing order,
the hearing examiner can issue an order to show cause why the
proceedings should not be summarily dismissed. 43 CFR § 4.545(a).
If the operator fails to respond to such an order, the proceedings
are summarily dismissed and remanded to the assessment officer for
entry of the last proposed order of assessment (issued under 30 CFR
pt. 100) as the final assessment order of the Secretary. 43 CFR §
4.545(b).
[
Footnote 9]
At the time of the events giving rise to these actions, the Act
was enforced by the Secretary's delegate, the Bureau of Mines. The
Bureau's safety and enforcement functions have since been
transferred to a newly created Mining Enforcement and Safety
Administration, Department of the Interior. 38 Fed.Reg.
18665-18668, 18695-18696 (1973).
[
Footnote 10]
A Conference Committee does not have authority to make changes
on matters as to which both bills agree. 2 U.S.C. § 190c(a) (Sen.
Conf. Reps.); Rule XXVIII(3), Rules of the House of Representative;
and § 546, Jefferson's Manual, H.R.Doc. No. 384, 92d Cong., 2d
Sess., 526, 270-271 (1973).