PETITION FOR REVIEW OF AN ORDER OF THE INTERIOR BOARD OF MINE OPERATIONS APPEALS.
Adams, Hunter and Garth, Circuit Judges.
Petitioners, pursuant to § 106(a) of the Federal Coal Mine Health and Safety Act of 1969,*fn1 seek review of an order of the Secretary of the Interior acting through the Board of Mine Operations Appeals.*fn2 Three principal issues are presented by this appeal.
First, whether the Secretary of the Interior, acting through the Board of Mine Operations Appeals, erred in interpreting § 77.410 of the Secretary's mandatory safety standards so as to require bulldozers to be equipped with back-up alarms.*fn3
Second, whether the Board erred in sustaining the issuance of a notice of violation in view of the unavailability of satisfactory equipment.
Third, whether the Board erred in deciding that certain violations of the mandatory safety standards were rendered moot by the abatement of the violations prior to hearing.
Petitioners are thirteen owners and operators of surface coal mines located in Butler, Clarion and Mercer Counties, Pennsylvania, whose mines are subject to the provisions of the Federal Coal Mine Health and Safety Act and to the mandatory safety standards*fn4 promulgated by the Secretary pursuant to the act. In 1971 and 1972 the Bureau of Mines of the Department of the Interior,*fn5 following the directives of § 104(b) of the Act,*fn6 caused to be issued and served on the petitioners twenty-nine notices of violations.
Section 104(b) requires a mine inspector finding a violation of the mandatory safety standards not creative of an imminent danger to issue to the mine operator a notice of such violation, fixing a time for its abatement. An inspector who, by contrast, finds a condition of imminent danger must order "forthwith," under section 104(a) of the Act,*fn7 that the operator withdraw all persons from the affected area.
Twenty-five of the notices received by the petitioners related to alleged violations of § 77.410 because of the failure of the mine operators to attach to mobile equipment then being used an alarm device which activated when the equipment moved in reverse. Nineteen of the twenty-five notices of violations of § 77.410 had reference to bulldozers, and were served on nine of the petitioners. The other six notices of alleged violations of § 77.410 concerned mobile equipment other than bulldozers. As to the other types of mobile equipment, the question whether a violation of § 77.410 actually occurred is not raised in the petition. The remaining four of the twenty-nine notices of violations received by petitioners during the period in question involved alleged violations of various of the Secretary's mandatory safety standards other than § 77.410. The fact of violation of the other safety standards also is not an issue before us.
As provided in § 105(a) of the Act,*fn8 petitioners filed applications for review by the Secretary of each of the twenty-nine notices both as to the fact of violation in the first instance, as well as to the reasonableness of the time fixed for abatement of the violations. An administrative law judge of the Hearings Division of the Office of Hearings and Appeals of the Department, after holding extensive prehearing conferences, consolidated the twenty-nine applications and conducted the consolidated hearings from June 20 to 22, 1972.
Prior to the hearings, twelve of the twenty-nine alleged violations had been abated: five of the nineteen notices of violations of § 77.410 applicable to bulldozers, three of the six notices of violations of § 77.410 applicable to mobile equipment other than bulldozers, and all four notices of violations of various mandatory safety standards other than the § 77.410 safety standard. An attorney for the Bureau of Mines stipulated with counsel for ...