(dissenting).
I would grant the stay and assign the appeal for an expedited hearing at our October, 1974 Session.
Fifty-one mining companies petitioned the Secretary, under the provisions of Section 301(c) of the Act, to modify the interim mandatory safety standards of the Act contained in Section 305(a)(2).
Section 301(c) of the Act provides as follows:
(c) Upon petition by the operator or the representative of miners, the Secretary may modify the application of any mandatory safety standard to a mine if the Secretary determines that an alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard, or that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. Upon receipt of such petition the Secretary shall publish notice thereof and give notice to the operator or the representative of miners in the affected mine, as appropriate, and shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing, at the request of such operator or representative or other interested party, to enable the operator and the representative of miners in such mine or other interested party to present information relating to the modification of such standard. The Secretary shall issue a decision incorporating his findings of fact therein, and send a copy thereof to the operator or the representative of the miners, as appropriate. Any such hearing shall be of record and shall be subject to section 554 of Title 5. 30 U.S.C. § 861(c).
The Secretary gave the required notice of the filing of the petition, but he did not provide an opportunity for a public hearing to enable the mine operators to present information relating to the modification of the standard.
An Administrative Judge summarily granted a motion to dismiss without taking any evidence; he adopted no findings of fact. His order was affirmed in an administrative appeal.
In Reliable Coal Corp. v. Morton, 478 F.2d 257 (4th Cir. 1973), relied on by the Secretary, the hearing examiner permitted evidence to be offered at the hearing but made no factual findings.
In my opinion, before resorting to the drastic closing of all fifty-one of these mines, the Secretary was required to conform to the procedural requirements of the Act, the regulations adopted pursuant thereto, and the requirements of the Administrative Procedure Act. These requirements were designed to afford due process of law in administrative proceedings.
There is a substantial question whether the Secretary complied with the procedural requirements of the Act so as to afford due process of law to the mine owners. This substantial question should be explored in depth in this appeal and the mines ought not to be closed until the mine owners have had an opportunity to be heard and to offer evidence in support of their petition.