availability, the operator is relieved of the burden and may rely upon the government's evidence.

Federal Coal Mine Health and Safety Act of 1969: Mandatory Safety Standards: Trailing Cable Splices

Where the evidence shows an operator made a defective permanent splice in a trailing cable in violation of 30 CFR 75.604, the Administrative Law Judge did not err by finding that a violation occurred or by holding that the defective permanent splice may not be deemed to be a permissible temporary splice.

APPEARANCES: Robert P. Reineke, Esquire, Wesley C. Marsh, Esquire, Raymond E. Davis, Esquire, for appellant, Buffalo Mining Company; Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, Mark M. Pierce, Trial Attorney, for appellee, U.S. Bureau of Mines.

OPINION BY MR. DOANE INTERIOR BOARD OF MINE OPERATIONS APPEALS

Procedural Background These cases arise under the Federal Coal Mine Health and Safety Act of 1969 (hereinafter, the (hereinafter, the "Act").1 They come to the Board as appeals from three separate decisions of an Administrative Law Judge (Judge) issued November 24, 1972, December 8, 1972, and December 4, 1972, under Docket Nos. HOPE 72-81-P, HOPE 72-65-P, and HOPE 72-150-P, respectively. The respective appeal numbers assigned are IBMA 73-18, IBMA

1 P.L. 91-173, 83 Stat. 742, 30 U.S.C. §§ 801-960.

73-22, and IBMA 73-23. The first case involves No. 5 Mine, and the other two involve the No. 8 Mine, both operated by Buffalo Mining Company (Buffalo), a whollyowned subsidiary of the Pittston Company. For convenience, we have consolidated these three appeals since several principal issues raised by Buffalo, as appellant, are common to all three. Hearings were held before the Judge on these cases on August 8-10, and 14, 1972, and oral argument was held before this Board on March 21, 1973.

In each of these cases, Buffalo moved the hearing Judge to suppress all evidence offered by the Bureau of Mines (MESA)2 to prove the cited violations of mandatory safety standards under the Act on the ground that such evidence was obtained by unlawful searches in that the inspections of the mines were conducted without first obtaining search warrants or the express consent of Buffalo.

Although not challenged in the proceedings below, Buffalo, in these appeals before the Board also challenges the validity of Departmental regulations promulgated by the Secretary in implementation of the Act on the ground that the Secretary failed to comply with sections

As of July 16, 1973, the responsibility for the administrative enforcement of the Act was transferred from the Bureau of Mines to the newly created Mining Enforcement and Safety Administration (hereinafter MESA), and it was directed that MESA be substituted for the Bureau of Mines in all proceedings, involving the Federal Coal Mine Health and Safety Act of 1969, pending before the Office of Hearings and Appeals. See 38 F.R. 18665 (July 13, 1973).

101 and 301 of the Act, and also failed to file an environmental impact statement, referred to in the National Environmental Policy Act (NEPA) and Executive Order No. 11514.1

In the proceeding docketed as HOPE 72-81-P (IBMA 73-18), Buffalo was cited for nine violations of mandatory safety standards under the Act and regulations. The Judge vacated three of these and assessed penalties for the remaining six in the total amount of $2,200.

In the proceeding docketed as HOPE 72-65-P (IBMA 73-22), four alleged violations were the subject of the hearing. One was vacated by the Judge on finding that no violation occurred, and Buffalo was assessed a total of $500 on the remaining three.

In the proceeding docketed as HOPE 72-150-P (IBMA 73-23), Buffalo was cited with one notice of violation and assessed a penalty of $200.

Buffalo appeals the validity of all ten assessments made by the Judge on both general and specific grounds (discussed, infra part III).

MESA in its briefs, opposes all the contentions of Buffalo in these appeals and requests that the argument of Buffalo relating to noncompliance with NEPA be stricken since it was not raised in the proceedings below.

3 National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq (1970).

Exec. Order No. 11514, 3 CFR 285, 42 U.S.C. § 4321 (1970).

Issues Presented on Appeal

I

Whether motions of the operator to suppress the evidence of MESA to prove violations of mandatory safety standards were erroneously denied by the Administrative Law Judge where the source of such evidence was mine inspections made without search warrants or the express consent of the operator.

II

Whether the Board has authority under its delegation to determine the validity of the regulations promulgated by the Secretary to implement the Act under a charge that such regulations were not in compliance with the Act or with the National Environmental Policy Act (NEPA).

III

Whether the Administrative Law Judge erred in finding that violations of mandatory safety standards occurred or in assessing penalties with respect to the ten notices of violation involved in these appeals.

DISCUSSION

I

Search Warrant Question

Buffalo contends that the Judge on June 2, 1972, prior to hearing, erroneously denied its motion to suppress all the evidence to be offered by MESA on the alleged

violations of the Act in all three proceedings, on the ground that such evidence was the product of unreasonable searches. The denial of these motions was based on this Board's Memorandum Opinion rendered in an interlocutory appeal, Clinchfield Coal Company, 1 IBMA 70a, 79 I.D. 655, CCH Employment Safety and Health Guide par. 15,370 (1971), wherein we expressed the view that sections 103 and 108 of the Act clearly show an intent by Congress not to require either a search warrant or the express consent of the operator before conducting an inspection of a coal mine.5 An appeal of this interlocutory ruling to the Fourth Circuit Court of Appeals was dismissed May 17, 1972, on the ground that Clinchfield had not exhausted its administrative remedies. On March 30, 1973, pursuant to remand by the Circuit Court, the Administrative Law Judge issued an order following the Board's ruling.

Buffalo argues that, in the Clinchfield opinion, supra, the

5 Section 103(b)(1) of the Act provides: "For the purpose of making any inspection or investigation under this Act, the Secretary or any authorized representative of the Secretary shall have a right of entry to, upon, or through any coal mine." Among other things, section 108 of the Act provides: "The Secretary may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which a coal mine is located or in which the operator of such mine has his principal office, whenever such operator or his agent *** (d) refuses to permit the inspection of the mine, or the investigation of an accident or occupational disease occurring in, or connected with, such mine * * *."

• Pittston Company v. Board of Mine Operations Appeals, 460 F.2d 1189 (4th Cir. 1972).

Board did nothing more than decline to consider the constitutionality of section 103 of the Act, and ignored the independent issue of whether the inspectors in these inspections violated the Fourth Amendment prohibition against searches made without warrants.

Essentially, Buffalo urges that the Board accept a distinction between the constitutional applicability of legislation applied to particular facts and the constitutional validity of the Act. That is to say, Buffalo claims that we may inquire into legislative intent, express, implied, or presumed although we are not entitled to take action in opposition to the will of Congress.

In support of its contentions, Buffalo calls our attention to Professor Davis' treatise. 3 Davis, Administrative Law Treatise, section 20.04. To our knowledge, the distinction pressed upon us by Buffalo originated with Professor Davis. He cites no case authority to support his position and our research has disclosed that the existing case law suggests that the distinction is without legal significance. An administrative tribunal may not entertain constitutional questions whether they deal with general validity or with applicability to particular facts. Panitz v. District of Columbia, 72 App. D.C. 131, 112 F. 2d 39 (D.C. Cir. 1940), Public Utilities Commission of California v. United States, 355 U.S. 534 (1958). Therefore, we hold that this Board has no authority to rule on Buffalo's Fourth Amendment

claims and we affirm the Judge's ruling denying the motions to

suppress.

II

NEPA Impact Question

As a general rule, we would concur with MESA's position that an issue not raised in the proceeding at the hearing level will not be entertained by the Board on appeal. However, in these cases, to determine a jurisdictional question, the Board ordered oral argument and specifically requested the parties to argue the question of the Board's authority to determine the impact, if any, NEPA and Executive Orders issued pursuant thereto may have on the validity of the substantive regulations pertaining to mandatory health and safety standards promulgated by the Secretary under the Act.

Buffalo argues that the failure of the Secretary to issue a detailed statement on the environmental impact of such regulations, which it alleges is required by NEPA, renders them invalid, and that this Board, under its delegation of authority from the Secretary, has jurisdiction to rule on this question.

On the other hand, MESA takes the position that this Board has never been delegated authority by the Secretary to determine the extent of applicability which NEPA may have on the promulgation of rules or regulations. Furthermore, MESA regards the invalidation of

any rule or regulation promulgated by the Secretary as beyond the jurisdiction of this Board.

None of the legal authorities cited by either party appears to conclusively resolve the issue, but we must hold with MESA. The jurisdiction of the Board is determined by its delegation from the Secretary as set forth in section 4.500 of Title 43, Code of Federal Regulations (43 CFR 4.500), which provides:

(a) The Board of Mine Operations Appeals, under the direction of a Board Chairman, is authorized to exercise, pursuant to regulations published in the FEDERAL REGISTER, the authority of the Secretary under the Federal Coal Mine Health and Safety Act of 1969 pertaining to:

(1) Applications for review of withdrawal orders; notices fixing a time for abatement of violations of mandatory health or safety standards; discharge or acts of discrimination for invoking rights under the Act, and entitlement of miners to compensation;

(2) Assessment of civil penalties for violation of mandatory health or safety standards or other provisions of the Act;

(3) Applications for temporary relief in appropriate cases;

(4) Petitions for modification of mandatory safety standards;

(5) Appeals from orders and decisions of hearing examiners; and

(6) All other appeals and review procedures cognizable by the Secretary under the Act.

(c) In the exercise of the foregoing functions the Board is authorized to cause investigations to be made, order hearings, and issue orders and notices as deemed appropriate to secure the just and prompt determination of all proceedings. Decisions of the Board on all matters within

its jurisdiction shall be final for the Department.

The foregoing delegation clearly limits the Board's authority entirely to the Secretary's adjudicatory functions of applying and interpreting the statutory provisions and regulations in the review of proceedings arising under the Act.

It is significant that the grant of this authority to the Board is made pursuant to regulations published in the Federal Register. It seems questionable to us that any administrative tribunal within an executive agency would be given the power to invalidate the very regulations from which its source of authority and jurisdiction is derived.

We have been delegated no rulemaking authority whatever. The rulemaking for the Department has been reserved entirely to the Secretary. Therefore, he may have the power to declare his own regulations invalid, or a court may do so, but Buffalo has not provided us with the citation to any persuasive legal authority showing that we have any such power. Consequently, we hold that the power to declare

This delegation of authority is identical with the Secretary's delegation to the Board in Part 211, Department of the Interior, Departmental Manual, Chapter 13, Office of Hearings and Appeals, section .6, Board of Mine Operations Appeals (cited as 211 DM 13.6).

211 DM 13.9 provides: ".9 Federal Register Documents. The Director is authorized to issue notices of proposed rule making and general notices pertaining to the functions assigned to the Office of Hearings and Appeals. Issuance of final rules for codification in the Code of Federal Regulations is reserved for Secretarial signature."

invalid the rules and regulations promulgated by the Secretary under the Act lies outside the scope of this Board's jurisdiction.

III

General Complaints

Buffalo makes several general complaints regarding the penalty assessments made by the Judge. The first of these is that the assessment structure established by the Department unfairly and unlawfully subjects an operator to higher penalties simply because he appeals the proposed assessments of the Assessment Officer in exercising his right to a public hearing.

Buffalo points out that the aggregate of all ten assessments involved here made by the Assessment Officer was $475, while as a result of the public hearing, the Judge's aggregate assessment was $2,900. This, it is contended, has the effect of deterring an operator from seeking forfor daring to exercise a legal right. mal adjudication by punishing him It is further charged that such result demonstrates vindictiveness, intimidation, and deprivation of due process and equal protection of the

law.

MESA's response to this complaint is: that the machinery established for the assessment of penalties was entirely in accord with section 109 of the Act; that the informal proposed assessments made by the Assessment Officer were subject to rejection or payment by the