CONSOLIDATION COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents, Coal Employment Project, United Mine Workers of America, Intervenors.
No. 86-1403.
United States Court of Appeals, District of Columbia Circuit.
Argued March 6, 1987. Decided July 24, 1987.
We do well in the law to remember the simple truths. And one such truth, uttered at the Founding, is that if men were angels, government would not be necessary. The complicated souls who are unable, for whatever reason, to live peacefully in society in obedience to law present among the most difficult challenges to governments that are obliged to deal with them consistent with constitutional constraints. Today‘s result blinks at that truth, representing a triumph of skilled lawyering over basic common sense.
This verdict is profoundly wrong.
John Longstreth, with whom Kathryn P. Broderick, Edward M. Green, Henry Chajet and Michael F. Duffy, Washington, D.C., were on brief, for amicus curiae, American Min. Congress.
Ann Rosenthal, Counsel, Appellate Litigation, Dept. of Labor, with whom Linda Leasure, Atty., Dept. of Labor, Arlington, Va., was on brief, for respondent.
Dennis Clark, with whom Michael H. Holland and Mary Lu Jordan, Washington, D.C., were on brief, for intervenor, United Mine Workers of America.
J. Davitt McAteer, Betty Jean Hall and John F. Colwell, Washington, D.C., were on brief, for intervenor, Coal Employment Project.
Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.
Dissenting opinion filed by Circuit Judge D.H. GINSBURG.
WALD, Chief Judge:
Petitioner Consolidation Coal Company (“Consol“) was issued a citation under
I. BACKGROUND
A. Statutory and Regulatory Framework
Until 1977, coal mine health and safety were regulated under the
Sections 104(d) and 104(e) provide for more severe sanctions to be applied when an operator commits a series of violations which meet certain criteria. Section 104(d) is triggered when an inspector finds that a violation is significant and substantial and “caused by an unwarrantable failure” of the mine operator to comply with a mandatory health or safety standard.
Section 104(e) imposes a similar 90-day probationary period, beginning when the Secretary notifies an operator of the existence of a pattern of significant and substantial violations. An immediate withdrawal order must be issued if another significant and substantial violation is found within the probationary period.
The mandatory standard violated by Consol is set forth in
Coal mine operators are required to take “accurate samples of the amount of respirable dust in the mine atmosphere to which each miner ... is exposed” and to submit those samples to the Secretary for analysis.
B. Prior Proceedings In This Case
Pursuant to the designated occupation sampling regulations, Consol collected five respirable dust samples in January, 1982 for the continuous miner occupation in section 026-0 of the Blacksville No. 1 Mine in Monongalia County, West Virginia.4 MSHA‘s analysis of the samples revealed respirable dust concentrations of 8.1, 6.3, 5.1, 0.7, and 0.4 mg/m3.5 Thus, the average concentration for the five samples was 4.1 mg/m3.
Based on these test results, on February 16, 1982, an MSHA inspector issued a citation under
The designation of Consol‘s violation as significant and substantial was consistent with MSHA policy guidelines adopted in response to the Commission‘s decision in Cement Division, National Gypsum Co., 3 F.M.S.H.R.C. 822 (1981). The Commission held in National Gypsum, a case involving violations of mandatory safety standards, that a violation is properly designated as significant and substantial “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Id. at 825. In a subsequent decision, Mathies Coal Co., the Commission expanded on its decision in National Gypsum, holding that
to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
6 F.M.S.H.R.C. 1, 3-4 (1984) (footnote omitted). The Commission emphasized that Mathies involved a violation of a mandatory safety standard and noted that the question of the application of National Gypsum to a mandatory health standard was pending before the Commission in this case. Id. at 3 n. 4.
MSHA is currently reviewing the application of these guidelines to violations involving mandatory health standards. Pending completion of this review, violations involving mandatory health standards which limit exposure to or require protection from harmful airborne contaminants, toxic substances or harmful physical agents should be designated as “significant and substantial.”
Id. at 3.
Consol contested the citation, admitting that it had violated the respirable dust standard, but arguing that the violation should not have been designated as significant and substantial. Following an evidentiary hearing, a Commission ALJ upheld the designation of the violation as significant and substantial. Consolidation Coal Co., 5 F.M.S.H.R.C. 378 (1983). The ALJ found, based on the medical evidence presented, that “the exposure covered by the dust samples which resulted in the citation herein in itself would neither cause nor significantly contribute to chronic bronchitis ... or coal workers’ pneumoconiosis.” Id. at 389 (emphasis in original). Nevertheless, the ALJ referred to each incident of exposure to excessive levels of respirable dust as “a drop in the bucket” and concluded that “every drop in the bucket, every two month sampling period where excessive dust is present, significantly and substantially contributes to a health hazard—the hazard of contracting chronic bronchitis or coal workers’ pneumoconiosis.” Id. at 390. The ALJ found that there was no evidence that the violation was caused by negligence on the part of Consol. He imposed a penalty of $150. Id.
The Commission affirmed the ALJ‘s decision, holding that “some departure” from the National Gypsum standard was justified in this case “because of fundamental differences between a typical safety hazard and the respirable dust exposure-related health hazard at issue.” Consolidation Coal Co., 6 F.M.S.H.R.C. 890, 895 (1986). Adapting the Mathies Coal Co. formula to the context of a health standard violation, the Commission set out the elements necessary for a finding that such a violation is significant and substantial:
(1) the underlying violation of a mandatory health standard; (2) a discrete health hazard—a measure of danger to health—contributed to by the violation; (3) a reasonable likelihood that the health hazard contributed to will result in an illness; and (4) a reasonable likelihood that the illness in question will be of a reasonably serious nature.
Id. at 897. In applying this test to the violation at issue, the Commission had no trouble in determining that the first, second, and fourth elements were met, but it acknowledged that “[t]he third element ... presents a more difficult conceptual issue.” Id. at 898. The Commission recognized that “proof of a single incident of overexposure does not, in and of itself, conclusively establish a reasonable likelihood that respiratory disease will result.” Id. (emphasis in original). It also noted, however, that the harmful effects of overexposure to respirable dust are cumulative and do not produce any symptoms until serious harm has already occurred, so that it is impossible to predict “the precise point at which the development of chronic bronchitis or pneumoconiosis will occur or is reasonably likely to occur.” Id. The Commission considered the text and legislative history of the Mine Act and concluded that the Act embodied “an unambiguous legislative declaration in favor of preventing any disability from pneumoconiosis or any other occupation-related disease.” Id. at 897. Given the insidiousness and unpredictability of the onset of respiratory disease, coupled with the fact that prevention of such disease was one of the fundamental purposes of the Mine Act, the Commission concluded that once a violation of the respirable dust standard has been proven, “a presumption arises that the third element of the signifi-
The Commission also rejected Consol‘s argument that MSHA‘s dust sampling procedures were not sufficiently accurate to support a finding that a violation of the respirable dust standard was significant and substantial. The Commission noted that “all sampling methods fall short of perfection and are designed to provide best estimates of actual conditions.” Id. at 900. It concluded that the sampling procedures adopted by MSHA, if properly applied by the mine operator, would produce results which were “reasonably representative of the mine atmosphere.” Id. at 901. Further, Consol had failed to present any persuasive evidence that the accuracy of the results was compromised in its case. Id. at 902.
II. ANALYSIS
A. Ripeness
Before turning to the merits of this appeal, we consider the threshold issue of whether the Commission‘s designation of Consol‘s violation as significant and substantial is ripe for review. We do so not at the request of either the Secretary or the petitioner, but because our dissenting colleague has sua sponte raised the issue. At first glance, it is hard to fathom why the question of ripeness arises in this case at all. It is undisputed that the challenged policy, under which the Commission presumes that the statutory “significant and substantial” designation is appropriate for any violation of the respirable dust standard, has been squarely applied to Consol. There was nothing indefinite or conditional about the Commission‘s finding that Consol‘s violation was significant and substantial. Indeed, we have difficulty in seeing this as an appropriate case for a ripeness analysis at all, but feel compelled to go through the exercise because of the dissent‘s extensive argument that we should not reach the merits of Consol‘s challenge at all.
The ripeness inquiry requires us to consider “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). In applying the Abbott Laboratories test, the court must weigh the “interests of the challenging parties in obtaining a prompt resolution of their dispute” against “any institutional interests that either the court or the agency may have for postponing review.” State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986), cert. denied, U.S., 107 S. Ct. 1616, 94 L. Ed. 2d 800 (1987). Institutional interests in the deferral of review may be outweighed if postponing review will impose a hardship on those affected by the agency‘s action which is “immediate, direct, and significant.” State Farm, 802 F.2d at 480; see also Ciba-Geigy Corp. v. United States E.P.A., 801 F.2d 430, 439 (D.C. Cir. 1986).
The dissent does not appear to dispute that Consol has demonstrated sufficient injury resulting from the designation of its violation as significant and substantial to satisfy the
The agency action challenged here was the application of the statutory “significant and substantial” designation to a conceded violation of the respirable dust standard. Consol was directly injured by the designation of its violation as significant and substantial, over and above the injury which resulted from its having been deemed a violator. That designation not only increased the amount of the civil penalty assessed against Consol for this violation, it also became a part of Consol‘s permanent record, thereby exposing Consol to more severe sanctions for later violations. Under the law of this circuit, it is quite clear that the application of the significant and substantial designation to Consol‘s violation supplied the “‘modicum of injury’ necessary to support jurisdiction.” Meredith Corp. v. FCC, 809 F.2d 863, 868 (D.C. Cir. 1987) (quoting Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1006 (D.C. Cir. 1976)).
Section 110 of the Mine Act,
The dissent points out that the Secretary has stated, in the context of defending the use of the significant and substantial designation for violations of mandatory health standards, that “[e]ven if it were to be judicially determined that the statutory significant and substantial finding requires a higher degree of gravity than that currently utilized, that finding would not necessarily have any effect on MSHA‘s gravity evaluation for civil penalty purposes.” Brief of the Secretary of Labor at 32 n. 16 (emphasis added). The way in which the Secretary has actually exercised his discretion, however, causes us to be skeptical about that statement as supporting the dissent‘s claim that Consol suffered no injury with respect to the penalty assessed as a result of the significant and substantial finding. MSHA regulations set up a special category of civil penalty—the “single penalty assessment“—under which a penalty of $20 may be imposed “where the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time set by the inspector.”
The designation of Consol‘s violation as significant and substantial injured Consol in another way as well. The fact that a particular violation has been deemed to be significant and substantial becomes part of a mine operator‘s record and may be used against the mine operator in the determination of civil penalties for subsequent violations. One of the statutory factors the Commission is directed to consider in assessing civil penalties is the “operator‘s history of previous violations.”
Our conclusion that Consol has demonstrated sufficient injury to satisfy the
We now turn to the issue of whether Consol‘s challenge is ripe for review under the two-part test set forth in Abbott Laboratories. The “fitness for review” prong of the Abbott Laboratories test requires the court to consider two types of institutional interests in determining whether a particular challenge is fit for
All of the factors traditionally considered by courts in determining whether the “fitness for review” prong of the Abbott Laboratories test has been met point in favor of immediate review of Consol‘s claim. The Commission‘s policy with respect to the designation of respirable dust violations as significant and substantial has been fully developed in final form and unconditionally applied to Consol, so that our review poses no danger of interrupting the agency‘s decisionmaking process. See Eagle-Picher, 759 F.2d at 913 (“the principal function of the ripeness doctrine is to aid a court in ascertaining whether it should stay its hand until agency policy has crystallized“). The Secretary has never suggested that the Commission‘s application of its policy to Consol is not ripe for review, and in fact it appears that postponing review would be detrimental to the agency, leaving it uncertain as to its ability to impose the more serious sanctions available under
This case stands in sharp contrast to the typical ripeness case, however; here, the interests of both the court and the agency favor immediate review of the Commission‘s finding. Where, as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher, 759 F.2d at 918.11 It is enough that the petitioner show that it has suffered sufficient hardship to pass the
The dissent can point to no case in which the court has found that both the agency and the court have a positive interest in immediate review of the challenged agency action, but that the challenge is unripe because the petitioner has failed to show a hardship above and beyond that required for standing resulting from the action. To impose such a requirement would in effect convert the largely prudential doctrine of ripeness into an
The dissent cites cases in which this court found that the challenged agency action was “fit for review,” but nonetheless proceeded to consider the hardship prong of the Abbott Laboratories test. See diss. op. at 1094 & n. 31. All but one of these cases were pre-enforcement cases in which the challenged agency action was one that had not yet been applied to the party seeking review.13 See American Federation of Government Employees v. FLRA, 750 F.2d 143 (D.C. Cir. 1984) (petitioner seeking review of FLRA statutory interpretation); American Trucking Ass‘ns v. ICC, 747 F.2d 787 (D.C. Cir. 1984) (ICC policy statement); Alascom, Inc. v. FCC, 727 F.2d 1212 (D.C. Cir. 1984) (FCC announcement of policy); Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747 (D.C. Cir. 1984).
Were the dissent‘s gratuitous interjection of a ripeness issue into this routine enforcement case to be accommodated, the result would be a strange one, indeed. The Secretary has determined, with the approval of the Commission, that citations issued under
But ultimately the detailed factual context in which this case is presented displays most visibly the deficiencies in the dissent‘s approach. One of the arguments Consol makes is that, while respirable dust sampling techniques might be accurate enough to serve as the basis for a finding that a violation of the standard has been committed, they are not accurate enough for a finding that such a violation is significant and substantial. See Brief of Consolidation Coal Company at 19-29. This is precisely the sort of issue which is far better decided “in the context of a specific application ... than ... in the framework of [a] generalized challenge.” Toilet Goods, 387 U.S. at 164. The court stands on much firmer ground in deciding this issue on the basis of evidence about the accuracy of these particular samples rather than attempting to decide it later on the basis of allegations about the accuracy of respirable dust sampling in general. The ripeness doctrine favors postponement of review when a court believes that it would be better able to decide the case in the concrete factual context of a specific application of the challenged agency decision. See Andrade v. Lauer, 729 F.2d 1475, 1480-81 (D.C. Cir. 1984). What the dissent asks us to do is to refuse on prudential grounds to decide the issue of whether the Commission has properly presumed that all violations of the respirable dust standard are significant and substantial, even though that issue is presented to us in the fully developed factual context of a specific application of the presumption. The dissent reasons that the court might be able to decide the issue in a single across-the-board challenge without that factual context, see diss. op. at 1093 n. 27, if at some later time such a generalized challenge to the presumption were raised. The argument that a court should refuse to review a specific application of a challenged agency policy because a general
B. The Presumption That Any Violation of the Respirable Dust Standard Is Serious and Substantial
Consol challenges the Commission‘s adoption of a presumption that violations of the respirable dust standard are significant and substantial, arguing that this presumption conflicts with the Mine Act‘s overall enforcement scheme and lacks a rational basis. Consol asserts that the Mine Act requires the Commission, before it designates a violation as significant and substantial, to make a finding that the particular violation at issue poses a serious danger to miners, and that the Commission in this case has improperly substituted a presumption for that finding. Consol cites United Scenic Artists, Local 829 v. NLRB, 762 F.2d 1027 (D.C. Cir. 1985), in which this court invalidated the NLRB‘s presumption that a union charged with violating the secondary boycott provision by coercing a neutral employer had knowledge of the employer‘s neutral status. 762 F.2d 1027, 1034-35 (D.C. Cir. 1985). The court noted that “an agency is not free to ignore statutory language by creating a presumption on grounds of policy to avoid the necessity for finding that which the legislature requires to be found,” and held that, in adopting the presumption, the Board had exceeded its statutory authority. Id. at 1034-35.
We conclude that Scenic Artists is inapposite to this case, however. The determination of the likelihood of harm from a violation of an exposure-based health standard necessarily rests on generalized medical evidence concerning the effects of exposure to the harmful substance, rather than on evidence specific to a particular violation.15 Unlike the presumption in Scenic Artists, which involved a factual question of intent requiring consideration of “the actual facts and the relationships between and among the various parties,” 762 F.2d at 1035, in this case there were no “actual facts” to be considered beyond the fact that a violation of the respirable dust standard had occurred. Once the Commission had determined on the basis of medical evidence that any violation of the respirable dust standard should be considered significant and substantial, it would be meaningless to require that the same findings be made in each individual case in which a violation occurs.16
Consol also objects to the particular presumption chosen by the Commission, arguing that because the Mine Act creates a graduated enforcement scheme, with more severe penalties imposed for more severe violations, the standard for designation of a violation as significant and substantial must necessarily be higher than the 2.0 mg/m3 required for a mere violation. As we noted in our discussion of ripeness, however, the fact that a particular violation has been designated as significant and substantial, without more, does not result in the imposition of any additional sanction under the Mine Act (although it may lead to the assessment of a larger fine under MSHA regulations). Accordingly, we can-
The designation of all respirable dust violations as significant and substantial is consistent with the Secretary‘s long-standing practice in enforcing the Mine Act. Before the issuance of the National Gypsum decision in 1981, virtually all violations of mandatory health and safety standards had been designated as significant and substantial. See 8 F.M.S.H.R.C. at 895 (“Prior to the Commission‘s National Gypsum decision, the Secretary of Labor‘s enforcement policy was to regard all violations of mandatory standards as significant and substantial, except violations that were technical in nature or that posed only a remote risk of injury.“) While the Commission in National Gypsum and Mathies Coal Co. departed from its past practice with respect to the designation of violations of safety standards as significant and substantial, it reasonably concluded that violations of the respirable dust standard should continue to be designated as significant and substantial because of the “fundamental differences between a typical safety hazard and the respirable dust exposure-related health hazard at issue.” 8 F.M.S.H.R.C. at 895.
The legislative history of the Federal Mine Safety and Health Amendments Act suggests that Congress intended all except “technical violations” of mandatory standards to be considered significant and substantial. The 1977 amendments redesignated § 104(c) of the Coal Act as § 104(d) of the Mine Act without substantive change. The Commission‘s predecessor, the Interior Board of Mine Operations Appeals (“Board“), had given a broad reading to the “significant and substantial” language of § 104(c)(1) of the Coal Act:
Section 104(c)(1), it should be recalled, mandates the issuance of a notice when an inspector finds that “... a violation is of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard....” Our position now is that these words, when applied with due regard to their literal meanings, appear to bar issuance of notices under section 104(c)(1) in two categories of violations, namely, violations posing no risk of injury at all, that is to say, purely technical violations, and violations posing a source of any injury which has only a remote or speculative chance of coming to fruition. A corollary of this proposition is that a notice of violation may be issued under section 104(c)(1) without regard for the seriousness or gravity of the injury likely to result from the hazard posed by the violation, that is, an inspector need not find a risk of serious bodily harm, let alone of death.
Alabama By-Products Corp., 7 I.B.M.A. 85, 94 (1976) (emphasis in original). The Senate Report on the Mine Act, in discussing the proper interpretation of the “significant and substantial” language, noted the Alabama By-Products decision with approval: “The Board‘s holding in Alabama By-Products Corporation is consistent with the Committee‘s intention that the unwarrantable failure citation is appropriately used for all violations, whether or not they create a hazard which poses a danger to miners as long as they are not of a purely technical nature.” S. Rep. No. 181, 95th Cong., 1st Sess. 31, reprinted in 1977 U.S. Code Cong. & Admin. News 3401, 3431. The Commission‘s adoption of the presumption at issue here is consistent with congressional intent in enacting the Mine Act, and specifically with Congress‘s use of the “significant and substantial” language.
Finally, Consol argues that the presumption adopted by the Commission lacks a rational basis, because short-term exposure to respirable dust can never result in a significant and substantial violation. Consol notes that Congress adopted the 2.0 mg/m3 standard on the basis of studies of the effects of long-term exposure of miners to respirable dust. See H.R. Rep. No. 563, 91st Cong., 1st Sess. 18, reprinted in 1969 U.S. Code Cong. & Admin. News 2503, 2521 (“In a dust environment below about 2.2 mg/m3, there is virtually no probability of a miner contracting pneumoconiosis ..., even
Consol‘s argument fails to consider the inherent difficulties in enforcing a health standard designed to prevent diseases caused by the cumulative effects of repeated overexposure to a harmful substance. The harmful effect of any one incident of exposure to excessive concentrations of respirable dust is negligible—as the ALJ phrased it, a “drop in the bucket.” Thus, acceptance of Consol‘s argument would mean that no single violation of the respirable dust standard could ever be designated as significant and substantial. See Reply Brief of Consolidation Coal Company and the American Mining Congress at 2. This result cannot be reconciled with congressional intent in enacting the respirable dust standard. Congress did not require that dust concentrations be maintained below 2.0 mg/m3 over the long term; it required mine operators to “continuously” maintain the concentration of respirable dust at or below that level “during each shift.”
C. The Accuracy of Respirable Dust Sampling Procedures
Consol also challenges the accuracy of the sampling procedures adopted by the Secretary to measure concentrations of respirable dust. Many of Consol‘s arguments were considered and rejected by the Tenth Circuit in American Mining Congress (“AMC“) v. Marshall, 671 F.2d 1251 (10th Cir. 1982), in which the court upheld the designated area sampling regulations promulgated in 1980. In that case, AMC did not challenge the designated occupation sampling program, which had existed before the new dust sampling regulations were promulgated and had previously been known as “high risk occupation sampling.” The court noted, however, that “the designated occupation sampling program is itself an area sampling program.” Id. at 1256. The court concluded that “[s]ince there is no perfect sampling method, the Secretary has discretion to adopt any sampling method that approximates exposure with reasonable accuracy,” and that the area sampling was “reasonably calculated to prevent excessive exposure to respirable dust.” Id.17
signed to provide only estimates of actual exposure,” the fact that Congress enacted a sampling program using that instrument “indicates that it intended some error to be tolerated in enforcement of the dust standard.” AMC v. Marshall, 671 F.2d at 1256. Further, as the Tenth Circuit noted, MSHA regulations governing dust sampling procedures include a number of provisions which “minimize variability stemming from human and mechanical error.” Id. at 1259. The regulations provide for multiple shift sampling, for example, so that compliance is determined based on the average of a number of samples taken during consecutive shifts.
Finally, Consol argues that the specific samples at issue in this case did not accurately reflect the actual mine atmosphere at the time the samples were taken.
III. CONCLUSION
The Commission‘s adoption of a presumption that violations of the respirable dust standard are significant and substantial is rational and consistent with congressional intent in enacting the respirable dust standard and the enforcement provisions of the Mine Act. In addition, the procedures used to measure concentrations of respirable dust are sufficiently accurate to support a determination that a respirable dust violation is significant and substantial. Accordingly, the petition for review is
Denied.
HARRY T. EDWARDS, Circuit Judge:
I am pleased to concur, without any reservations, in the excellent opinion of Chief Judge Wald. I write only to emphasize the point that, under the ripeness doctrine, the hardship prong of the Abbott Laboratories test is not an independent requirement divorced from the consideration of the institutional interests of the court and agency. Better Government, which I authored, surely cannot reasonably be construed to suggest such a requirement. The precedent in this circuit is clear that a litigant must demonstrate “hardship” only when necessary to outweigh institutional interests that militate in favor of deferral of review.
Indeed, it would make no sense whatsoever to compel a litigant who has a valid case or controversy, cause of action, stand-
D.H. GINSBURG, Circuit Judge, dissenting:
Consolidation Coal Co. (Consol) concedes that in February, 1982 it violated a respirable dust standard established by the
Rather than contesting the citation itself, Consol has objected to a finding, noted on the citation by the Mine Safety and Health Administration (MSHA) inspector, that the violation was one that “could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard” (i.e., was “significant and substantial“). That the finding was actually noted on the citation, though, is of no consequence in deciding this case. The Secretary had previously adopted an enforcement presumption that any violation of a respirable dust standard would be deemed “significant and substantial,” which, as shown below, means it could count toward a later citation based on a pattern of “significant and substantial” violations. The inspector‘s “significant and substantial” finding was therefore a foregone conclusion once Consol had been cited for a respirable dust violation, and by noting this finding on the citation, the inspector simply stated what everyone already knew to be the case. Thus, this appeal stands on no different footing than it would if the inspector had omitted the notation and left Consol to deduce for itself that the Secretary presumed the violation to be “significant and substantial.”
Regardless of whether it was spelled out, however, the “significant and substantial” presumption had no impact whatsoever on Consol. It is sheer speculation for the court to suggest that, but for the designation, Consol would have been fined $20 rather than $150. Furthermore, the likelihood of the Secretary relying on this violation in the future in order to establish a “pattern” of violations is virtually nil. First, the Secretary has not yet developed guidelines for determining when a “pattern” exists under
Any ripeness inquiry must set forth from Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), in which the Supreme Court stated that
the ripeness doctrine[‘s] ... basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
Id. at 148-49 (footnote omitted). See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet Goods Association, Inc., 387 U.S. 167 (1967). Although we approach ripeness questions in a “pragmatic and commonsense” manner,5 our analysis must accord with well-established principles that the court has consistently applied over the years.
Whether a claim presented to the court satisfies the prudential requirements of ripeness is a question distinct from whether an agency action is “final” for jurisdictional purposes.6 A claim is ripe if the legal issue presented is “fit” for review and the petitioner has suffered “hardship.”7 As the passage from Abbott Laboratories quoted above indicates, the “fitness” prong of the ripeness doctrine protects the interests of the agency by preventing judicial interference that would hin-
der “further policy evolution.”8 Agency interests are not the exclusive concern of the “fitness” requirement, however. Requiring that an issue be “fit” for review also serves the court‘s interest, by postponing review until the policy is applied in an adequately developed factual context, one that clearly reveals the contours of the policy and, therefore, its lawfulness.9
To be ripe for review, the agency action must also impose “hardship,” i.e., “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs.”10 There is sufficient “hardship” when the agency action either inflicts “immediate and significant” harm upon the petitioner11 or else confronts it with a “hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions.”12 The “hardship” requirement is not satisfied, however, when the petitioner complains of prospective but
II. BACKGROUND
Here Consol objects to the “significant and substantial” designation because, it contends, the respirable dust violation was “an episodic affair,” caused merely by the malfunctioning of a sampling device, and “an episodic affair at that level [of exposure] will not adversely affect the health of any miners.”15 As a result, it argues, this violation could not have been “significant and substantial.” From this Consol draws the conclusion that Congress did not intend a “single short-term violation”16 to trigger the Mine Act‘s “most severe enforcement tools”17—the Secretary‘s withdrawal authority under sections 104(d) and 104(e) of the Mine Act.18 The Administrative Law Judge, the Commission, and now the court
Under section 104(e), the only provision relevant to this case,20 a particular “significant and substantial” violation has no consequence in isolation21; it can operate only as one of a series of such violations to form a “pattern.” When the Secretary finds that a pattern of “significant and substantial” violations has occurred, he must so notify the operator.22 Thereafter, if the operator commits another “significant and substantial” violation, the Secretary must issue a withdrawal order.23
As far as the record indicates, the Secretary has issued no “pattern” notice involving the respirable dust violation before us. Furthermore, as the court omits to mention, the Secretary has not even developed a policy for determining in specific cases whether a “pattern” of violations exists. Instead, all that has happened to date is that the inspector designated the particular violation as “significant and substantial,” which constituted nothing more than an application of the presumption contained in the Secretary‘s enforcement guidelines. Thus, although the inspector did issue a citation and assess a fine under sections 104(a) and 110(a) of the Mine Act, no enforcement action has been taken under section 104(e).
III. FITNESS FOR REVIEW
Given the facts that are before us, I believe that the validity of the “significant and substantial” finding is not “fit” for review. The Secretary‘s policy in applying section 104(e) is not only still “evolving,” it does not even exist at the present because he has not as yet determined what constitutes a “pattern” of respirable dust violations. Furthermore, as the court acknowledges,24 Consol‘s argument that Congress did not intend to authorize a withdrawal order for a one-time violation of this sort is true but it is also without significance. Congress in section 104(e) intended to authorize withdrawal orders for a “pattern” of violations, and so in order to determine whether Congress intended a section 104(e) withdrawal order in any particular circumstance—presumably a circumstance involving more than a single violation—we would have to await a finding by the Secretary that a “pattern” exists and then review that “pattern” finding. It may be that the manner in which the Secretary defines the term “pattern” will render Consol‘s argument about one-time violations irrelevant, e.g., by requiring numerous violations before a “pattern” is established.25 Because Consol‘s critique of the Secretary‘s presumption may lose all basis when “further
The necessity of further policy evolution to define the term “pattern” also implicates agency interests in favor of deferring review of the Secretary‘s presumption. The terms “pattern” and “significant and substantial” are related in section 104(e), and our premature interpretation of the latter term raises the possibility of our constricting the Secretary‘s proper discretion, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),28 when he turns to interpreting the term “pattern.”29
The court therefore errs when it states that “[t]he Commission‘s policy with respect to the designation of respirable dust violations as significant and substantial has been fully developed in final form and unconditionally applied to Consol, so that our review poses no danger of interrupting the agency‘s decisionmaking process.” Maj. op. at 1080. The term “significant and substantial” cannot be interpreted outside of its statutory context, in this case section 104(e). (This is particularly so given Consol‘s contention that Congress did not intend to authorize withdrawal orders under sections 104(d) and 104(e) for the violation before us, and that we should therefore conclude that this violation cannot be “significant and substantial.“) Until
IV. HARDSHIP TO CONSOL
Having reviewed Consol‘s section 104(e) claim to determine its “fitness” for review, the court‘s analysis then takes an unexpected turn. Instead of proceeding to determine, under the second prong of the Abbott Laboratories test, whether Consol suffered “hardship” under section 104(e) as a result of the “significant and substantial” presumption, the court simply concludes that the claim is ripe, omitting entirely any analysis of hardship. It will later show why Consol has suffered no “hardship” from the Secretary‘s presumption, but first I must address the court‘s attempt to evade application of the Abbott Laboratories test.
A. The Need to Assess “Hardship”
In explaining its rush to judgment, the court offers the sweeping principle that:
the Secretary defines the critical term in that provision—viz., “pattern” our review of his interpretation of “significant and substantial” poses a clear “danger of interrupting the agency‘s decisionmaking process” with regard to interpreting section 104(e).
In arguing that this case is fit for review, the court also contends that:
it appears that postponing review would be detrimental to the agency, leaving it uncertain as to its ability to impose the more serious sanctions available under §§ 104(d) and (e), which depends on initial findings that a violation is significant and substantial.
Maj. op. at 1080 (footnote omitted). The court offers no basis in fact for this assertion; there has been no representation by the Secretary that he has been inhibited, for example, from applying section 104(e), although five years have passed since the time of this citation and any evidence of such an inhibiting effect should have become obvious by now. Nor would one expect that the Secretary would be inhibited since, under Chevron, this court must uphold any “permissible construction” of the Mine Act that he chooses to adopt. 467 U.S. at 843, 104 S.Ct. at 2782.
For the same reason, I consider highly suspect the court‘s argument that ripeness analysis should be influenced by the belief that “postponing review would be detrimental to the agency, leaving it uncertain as to” the meaning of a statute. Under Chevron, the agency is the primary interpreter of the statute, and we must uphold any “permissible construction” thereof that it offers. Id. The centrality of the agency‘s interpretive role under Chevron only enhances the force with which the ripeness doctrine should be understood to counsel the court against interrupting the evolution of agency policy. See cases cited in note 8, supra. In this case, the Secretary has not yet interpreted the term “pattern” in section 104(e) and, as I have argued, we cannot properly review the Secretary‘s interpretation of “significant and substantial” in isolation from the term “pattern.” The court therefore turns ripeness analysis on its head when it contends that the undeveloped status of the Secretary‘s section 104(e) policy is a reason why it should now reach Consol‘s claim.
Where, as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher [v. United States EPA], 759 F.2d at 918. It is enough that the petitioner show that it has suffered sufficient hardship to pass the Article III threshold. Because we have already determined that Consol has shown sufficient hardship to satisfy the constitutional requirement, it seems obvious that “[w]e need not proceed ... to the second prong of the Abbott Laboratories test.” Eagle-Picher, 759 F.2d at 918; see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978).30
Although this passage suggests that the court is merely stating a principle of black-letter law, it is in fact announcing a novel proposition that is flatly inconsistent with numerous decisions of this court31 and, more important, with the landmark Supreme Court decisions in Abbott Laborato-
As for Eagle-Picher, it stands for far less than the court here supposes. In fact, rather than stating that no “hardship” is necessary to make ripe a claim that is otherwise “fit,” as the court today suggests, Eagle-Picher frankly acknowledged that “[i]n some of our decisions we have suggested that the court should consider ‘the hardship to the parties,’ even where the first prong of the Abbott Laboratories test is met.”36 Eagle-Picher then recognized a narrow exception to this rule for situations in which “Congress has emphatically declared a preference for immediate review,” as it had in the statute there in question by imposing a specified time period after promulgation for judicial review of regulations:
If we were to defer review in such a case merely because we could find no significant harm to the petitioner from delay, we would achieve the perverse result of postponing review to the detriment of the agency and the court and in contravention of the express preferences of Congress, in the name of a prudential doctrine that is intended to protect the institutional needs of courts and agencies.37
When properly read, the exception found in Eagle-Picher is completely inapposite to this case, because Congress in the Mine Act has not even faintly let alone “emphatically declared a preference for immediate review.”38
The court, however, in a feat of alchemy transforms the sensible and narrow excep-
The court‘s evasion of the “hardship” requirement in this case is therefore a sport, without basis in this circuit‘s law. If the court had properly proceeded to address “hardship,” furthermore, it is clear that Consol‘s claim could not have been found to be ripe. As I will show, the two injuries that the court points to in finding that Consol has standing do not satisfy the “hardship” test.
B. The Amount of the Fine
The court asserts that the “significant and substantial” designation “increased the amount of the civil penalty assessed against Consol for this violation” from $20 to $150.43 According to the court, the designation thus resulted in $130 worth of injury, which makes this case ripe for review. If the matter were so simple, of course, we would not be in disagreement. Upon inspection, however, the claimed harm proves illusory.
The Mine Act authorizes the Secretary to propose a civil fine of up to $10,000 for a violation of a mandatory health or safety standard.44 An operator may pay the proposed fine or contest it before the Commission. If the Commission agrees that the operator has violated the Act, it assesses the amount of the fine de novo. The Commission‘s discretion, within the statutory maximum, is limited under the Mine Act only by the list of factors to which Congress directed its consideration.45 Whether a violation is “significant and substantial” is not even one such factor, let alone determinative, of the amount of a fine below $10,000. Rather, that amount depends upon a variety of factors, of which the only one even arguably relevant here is “the
The Secretary has developed general guidelines, binding on the Commission, for determining the appropriate civil fine to propose in various circumstances. See 30 C.F.R. Part 100 (1986). Nowhere in these regulations, though, does the “significant and substantial” finding appear as a factor. Section 110.4 (30 CFR) does provide for a $20 fine “where the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time set by the inspector.” As the court notes, the first part of this standard is the same as the Secretary‘s criterion for identifying a “significant and substantial” violation. The court therefore concludes that if the “significant and substantial” designation in the citation was improper under the Mine Act, then under the regulations Consol was entitled to receive a mere $20 fine. In support of this contention, the court appears to rely exclusively on the following statement in the Secretary‘s brief: “the Secretary has ... determined that violations that are serious enough to be desig-
The court‘s reliance is misplaced and its logic flawed, however. First, as to logic: the fact that the standard in section 110.4 (CFR), which determines eligibility for a $20 fine, and the standard in sections 104(d) and 104(e) of the Mine Act,47 which determine whether a violation is “significant and substantial,” are idem sonans does not support the conclusion that we must determine whether Congress in those statutory sections authorized the Secretary to treat the respirable dust violation of section 104(a) here as “significant and substantial.” In the Mine Act, Congress defined certain violations to be “significant and substantial“; let us designate this standard “A.” In exercising his broad discretion to propose fines up to an amount of $10,000, the Secretary in his regulations announced the proposition, in substance, that some violations are so serious that they should not receive a mere $20 fine; designate this standard “C.” The Secretary then gave meaning both to “A” and to “C” by defining them similarly as those violations that are “reasonably likely to result in a reasonably serious injury or illness“; designate this standard “B.”
According to the court, since A = B and B = C, then A = C, with the effect that under the regulations a violation should receive a $20 fine unless that violation was “significant and substantial” under the Mine Act. The difficulty with reaching this result is that A = C equates a congressional standard for withdrawal orders (standard A) with the Secretary‘s standard for fines (standard C), on the basis of a bridging definition (standard B) provided by the Secretary. Whether a court‘s holding that
Second, therefore, we must address the question of the Secretary‘s intent, as to which the court relies on the following statement in the Secretary‘s brief: “the Secretary has ... determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA‘s
The “significant and substantial” designation ... does not, per se, have any effect on the size of the penalty that MSHA proposes for a violation. One of the factors MSHA must consider in proposing a penalty is the “gravity,” or seriousness of the violation. MSHA designates as significant and substantial those violations which rise to a certain level of seriousness, and the Secretary has also determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA‘s $20 minimum penalty. The two policies are distinct, however. Even if it were to be judicially determined that the statutory significant and substantial finding requires a higher degree of gravity than that currently utilized, that finding would not necessarily have any effect on MSHA‘s gravity evaluation for civil penalty purposes.50
This conclusion as to the Secretary‘s intent is buttressed by the fact that, if the Secretary had wanted to bind himself and the Commission in such a way, he could have easily done so by providing in the regulations that fines above $20 shall be assessed for “significant and substantial” violations, omitting altogether the “reasonably likely to result in a reasonably serious injury or illness” standard.51
The court has not argued, let alone shown, that in the absence of the “significant and substantial” finding Consol‘s fine, even if greater than $20, would still have been less than $150. Under the regulations, if the violation does not qualify for the $20 fine, the Secretary generally calculates the amount of the fine using an elaborate formula for quantifying the seriousness of
an evaluation of the seriousness of the violation as measured by the likelihood of the occurrence of the event against which a standard is directed, the severity of the illness or injury if the event occurred or were to occur, and the number of persons potentially affected if the event occurred or were to occur. Id. § 100.3(e). The regulation establishes “likelihood” and “severity” point values, none of which involves whether the violation is “significant and substantial” or even whether the violation is “reasonably likely to result in a reasonably serious injury or illness.”
In certain exceptional situations, the Secretary assesses fines under an alternative provision. Under 30 C.F.R. § 100.5, the Secretary may impose a “special assessment” for “some types of violations [that] may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under” subsection 100.4 or subsection 100.3. None of the eight listed categories qualifying for a “special assessment,” however, involves a determination of whether a violation is either “significant and substantial” or “reasonably likely to result in a reasonably serious injury or illness.”
In other words, whether Congress in enacting sections 104(d) and 104(e) of the Mine Act intended for a violation in the nature of Consol‘s to result in a withdrawal order (i.e., whether this violation may be presumed to be “significant and substantial“—the issue that the parties wish to litigate and the court obligingly decides) does not determine whether Consol was entitled to be fined only $20. Congress in the Mine Act granted to the Secretary (and thus to the Commission which applies his regulations) virtually unreviewable discretion in proposing fines up to $10,000, and the Secretary has not bound himself or the Commission in any way to a policy that would follow the court‘s interpretation of “significant and substantial” in determining whether a $20 fine is appropriate under 30 C.F.R. § 100.4.52
Therefore, any interpretation by this court of what Congress meant by “significant and substantial” in sections 104(d) and 104(e) will have utterly no effect on either the Secretary‘s method of assessing fines or, more importantly, on Consol‘s fine for the violation.53 Consol therefore cannot rely on the $150 fine to make the necessary ripeness showing that it suffered concrete “hardship” as a result of the “significant and substantial” designation and the Secretary‘s enforcement presumption.
C. The “Pattern” Issue
It is also clear, and the court does not argue otherwise, that Consol suffered no “hardship” under section 104(e) as a result of the Secretary‘s presumption that the respirable dust violation for which it was cited was “significant and substantial.”54 It is of course undisputed that Consol suffered no immediate penalty under section 104(e).55 Nor did the presumption confront Consol with a “hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions.”56 The presumption itself posed no “hard choice” because (1) the violation, which Consol concedes occurred, was already un-
compliance, and that is far from this case.58 We consequently do not address a situation in which the disputed agency action (here the “significant and substantial” presumption) affected Consol‘s “primary conduct”59 either by deterring it from engaging in profitable activity or by compelling it to undertake costly compliance measures.60
Furthermore, even though a single “significant and substantial” violation is “an important first step in a chain of events” leading to enforcement under section 104(e), any number of contingencies “may interrupt the chain.”61 Consol will be harmed as a result of the Secretary‘s presumption that this violation was “significant and substantial” if and only if (1) Consol commits further “significant and substantial” violations for which it is cited, (2) the Secretary then makes a finding that the series of violations constitutes a “pattern” within the meaning of section 104(e), and (3) after being notified that a “pattern” exists, Consol commits still another “significant and substantial” violation. Only after all these events transpire will the Secretary order withdrawal. The likelihood that the particular violation in this case, which occurred over five years ago, will ever form part of a “pattern” finding is therefore virtually nil, and would certainly be far too hypothetical to justify judicial re-
Finally, whatever hypothetical harm may come to pass can be fully averted by review when and if the Secretary issues a “pattern” notice or a withdrawal order.63 In this respect, the instant case differs not at all from previous decisions by this court in which we have postponed to a more appropriate time review of concededly “final agency action” that imposed no present hardship.64 Given the availability of adequate relief at a later time, when the issue is presented in the context of an actual “pattern” finding to which the Secretary has applied a stated policy for implementing section 104(e), this issue is clearly not ripe for review now.65
V. CONCLUSION
This rationale offered by this court (per Scalia, J.) for dismissing another recent case as unripe applies equally well, indeed perfectly, to the instant case. I cannot improve upon it, so I will simply restate it:
[The ripeness doctrine] protect[s] us from adjudicating matters that are not sufficiently “fleshed out” that we may see the concrete effects and implications of what we do ... [and it] protect[s] us from adjudicating matters that in fact
make no difference and are a waste of our resources.... [T]he prematurity [in this case] is such that—whether or not constitutional limits are exceeded, and whether or not the agency objects—our own ability to decide intelligently, and our own confidence that we are expending resources in resolving a dispute that has substance, are proximately affected.... In these circumstances, we would be foolhardy to proceed, even absent objection, in a case that does not meet the Abbott Laboratories standard.66
The issue in the case before us is not “fit for review” and Consol has suffered no “hardship.” Because “[n]o roving preview function has been assigned to courts in the federal system,”67 this petition should have been dismissed. I therefore dissent.
Notes
The court notes correctly, however, maj. op. at 1081, that some of this court‘s opinions have broadly suggested that sufficient hardship may “outweigh any institutional interests in the deferral of review.” Better Government Ass‘n v. Department of State, 780 F.2d 86, 92 (D.C. Cir. 1986). See State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d at 479-80; Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 940; Eagle-Picher Industries v. United States EPA, 759 F.2d at 915 & n. 15; Public Citizen Health Research Group v. Com‘r FDA, 740 F.2d 21, 31 (D.C. Cir. 1984); Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 618; Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 672 (D.C. Cir. 1978); New York Stock Exchange v. Bloom, 562 F.2d 736, 740-41 (D.C. Cir. 1976), cert. denied sub nom. New York Stock Exchange v. Heimann, 435 U.S. 942, 98 S. Ct. 1520, 55 L. Ed. 2d 538 (1978); Continental Air Lines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C. Cir. 1974) (en banc). This assertion, which has always been dicta, seems highly problematic; first, it is unlikely that the legal issues will be unfit for review when significant hardship has been imposed (I am aware of no such instance); and second, if a case is truly unfit for review, then review is improper, as a matter of law, notwithstanding the hardship imposed. Cf. Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 243 (D.C. Cir.), cert. denied, 449 U.S. 1061, 101 S. Ct. 784, 66 L. Ed. 2d 604 (1980).
Alternatively, the dissent asserts that review of each prior finding that a violation was significant and substantial would be unnecessary, because the issue could be addressed in one across-the-board challenge to the presumption, “when properly presented in a section 104(e) case.” Diss. op. at 1093 n. 27. The argument that we should postpone review of a specific application of the challenged presumption presented, as it is here, in a fully developed factual context, because we might at some later date be faced with a generalized challenge to the presumption, runs directly contrary to the purposes underlying the ripeness doctrine. One of the premises on which that doctrine rests is that courts are better able to decide issues presented in the context of a concrete application of the challenged agency action, rather than in a gen- See Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524 (“judicial appraisal of [an issue] is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of [a] generalized challenge“); Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 941-42; Reynolds Metal Co. v. FERC, 777 F.2d 760, 762 (D.C.Cir.1985); American Trucking Ass‘n, Inc. v. ICC, 747 F.2d at 789-90; South Carolina Electric & Gas Co. v. ICC, 734 F.2d 1541, 1546 (D.C.Cir.1984); Air New Zealand Ltd. v. CAB, 726 F.2d at 837; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 620; Diamond Shamrock Corp. v. Costle, 580 F.2d at 674.
This case does not involve a pre-enforcement challenge, however; Consol has already been found to have committed a significant and substantial violation of the respirable dust standard. The labeling of Consol as a “significant and substantial” violator and its consequent ineligibility for the $20 minimum penalty result from agency action that has already occurred, not from agency action that may or may not occur in the future, as in the pre-enforcement cases. Indeed, the dissent concedes that “there was enforcement under section 104(a) when the Secretary issued a citation to Consol for violation of a respirable dust standard.” See diss. op. at 1100 n. 55. Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524.
Neither Better Government nor Capitol Technical Services held, as the dissent seems to suggest, that the hardship prong of the Abbott Laboratories test is an independent requirement divorced from the consideration of the institutional interests of the court and agency. In fact, the court in Better Government specifically stated that a showing of hardship is required “[i]n order to outweigh any institutional interests in the deferral of review.” 780 F.2d at 92. The mere discussion of the existence of hardship to the parties in these cases is in no way the equivalent of a holding that hardship beyond that necessary for
In some of our decisions we have suggested that the court should consider “the hardship to the parties,” even where the first prong of the Abbott Laboratories test is met. [citing three of the cases cited by the dissent in this case] In none of these cases, however, did we explicitly find that both the agency and the court had a positive interest in immediate review.
759 F.2d at 918 (emphasis added).
The cases cited by our dissenting colleague as those in which this court has “postponed to a more appropriate time review of concededly ‘final agency action’ that imposed no present hardship,” see diss. op. at 1101 & n. 64, also involve institutional concerns favoring deferral of review. See Northern Natural Gas Co. v. FERC, 780 F.2d 59, 63 (D.C. Cir.) (challenge to condition which would not be applied until after petitioner‘s next rate case was unripe where court could not determine validity of condition outside context of future ratemaking order), reh‘g en banc granted and opinion vacated in other part, 780 F.2d 64 (D.C. Cir. 1985); Air New Zealand Limited v. Civil Aeronautics Board, 726 F.2d 832, 837-38 (D.C. Cir. 1984) (petitioner‘s challenge to condition providing for possible future termination of its authority to operate air service was unripe until condition actually applied); Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C. Cir. 1978) (possible hardship to petitioners outweighed by court‘s interest in “postponing review until these issues arise in a more concrete and final form“). See National Latino Media Coalition v. FCC, 816 F.2d 785, 790 (D.C.Cir.1987); State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d at 480-82; Hastings v. Judicial Conference of United States, 770 F.2d 1093, 1100-02 (D.C.Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 3272, 91 L.Ed.2d 562 (1986); Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 749-50; Alascom, Inc. v. FCC, 727 F.2d at 1220; Air New Zealand Ltd. v. CAB, 726 F.2d at 837-38; Arkansas Power & Light Co. v. ICC, 725 F.2d at 725-26; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d at 148-49; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 623-24.
The court here simply piles one unsupportable assertion upon another. First, the court assumes that in a pattern case our review of the Secretary‘s presumption that any respirable dust violation is “significant and substantial” would require us to engage in individualized factual review of each prior finding. Given the presumptive nature of the Secretary‘s enforcement policy, however, such individualized review would not be necessary. In deciding whether the presumption violates the Mine Act, the individual facts of each such violation would be irrelevant to our analysis because the Secretary disavows any reliance upon them. We therefore need to address this issue only once, either now or when properly presented in a section 104(e) case, and that one resolution will apply to all the violations that the Secretary claims, in a later case, constitute a pattern. Cf. American Trucking Ass‘n, Inc. v. ICC, 747 F.2d at 790.
Second, once we upheld the Secretary‘s enforcement presumption, the only relevant question of fact would be whether respirable dust violations did occur as alleged by the Secretary. Because an operator may immediately contest whether a respirable dust standard has been violated (as Consol chose not to do in this case), all the relevant factual questions will have been litigated when the violation was first charged. If review of a subsequent “pattern” finding ever became necessary, the fact that a violation of a respirable dust standard occurred at a particular place and time will be a matter of official record; the proof will therefore be documentary. (The court attempts to rely on Consol‘s contention concerning the accuracy of the samples to show that individualized factual review will be necessary. This argument amounts to no more than (1) the testing device is too unreliable to support the Secretary‘s presumptive reliance on its results, or (2) the device malfunctioned in this case, and thus the dust standard was not in fact violated. The former contention depends not on the particulars of any one violation, but on the general accuracy of the device, and the latter contention, as I have stated, may be litigated at the time of the citation. Here, Consol has conceded that the standard was violated.)
The ripeness test of “hardship” imposes the additional requirements that the injury be “immediate and significant” and that subsequent proceedings cannot remedy it. Supra at 1091-1092.
The Commission shall have authority to assess all civil penalties provided in this chapter. In assessing civil monetary penalties, the Commission shall 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 person charged in attempting to achieve rapid compliance after notification of a violation. In proposing civil penalties under this chapter, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning the above factors.
In so arguing, the court confuses correlation with causality, just as does the person who, noticing that fires are more severe when more firemen are present, deduces that the way to diminish fire damage is to have fewer firemen. In our case, instead of there being a causal relationship between “significant and substantial” designations and fines of more than $20, any 1:1 correlation (assuming that it does exist) appears to result from the Secretary‘s determining first whether a violation is “reasonably likely” etc., and from a positive answer reaching two separate conclusions: (1) to assess more than a $20 fine for that violation and, (2) if a “pattern” of similar violations develops, to treat such violations as “significant and substantial” for the purpose of deciding when a withdrawal order is necessary under section 104(e) of the Mine Act.
If this accurately explains the correlation (and I conclude that it does, see text infra), this appeal is not ripe for review, because the complained-of harm (viz. the fine above $20) will not be redressed by this court ruling that the Secretary violates the Mine Act when he presumes that all respirable dust violations are “significant and substantial.” Simply put, such a ruling would have no bearing on the Secretary‘s separate conclusion that violations that are “reasonable likely” etc. should be fined more than $20. Consequently, in Consol‘s case, the only relief that would follow from such a ruling would be that this non-“significant and substantial” violation could not later form part of a “pattern” of such violations under section 104(e). The $150 fine, however, would be unaffected. Because the relief sought by Consol will not redress the fine, Consol may not rely upon that fine to show that the propriety of the Secretary‘s enforcement presumption is an issue now ripe for review, nor even, as the court would, that Consol has standing to object to the presumption. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).
Even though the “pre-enforcement” distinction does not play any part in the court‘s analysis, I note that the contention that Consol‘s appeal “does not involve a pre-enforcement challenge” is simply wrong, and results from the court‘s failure to distinguish between enforcement under section 104(a) (issuance of citation) and under section 104(e) (issuance of “pattern” finding and subsequent withdrawal order). In this case, there was enforcement under section 104(a) when the Secretary issued a citation to Consol for violation of a respirable dust standard. Consol could seek immediate review of that citation on the ground that the violation did not occur, but that section 104(a) enforcement is irrelevant with respect to Consol‘s challenge to the “significant and substantial” designation placed on the citation by the MSHA inspector.
For the court‘s distinction to be of any moment there would have to be enforcement under section 104(e). The designation, however, does not constitute “enforcement.” As I have shown, the designation did not cause the fine to be increased, and the violation has not yet formed part of a “pattern” under section 104(e). Furthermore, as I have stated above, supra at 1089, the designation was a foregone conclusion given the Secretary‘s presumption that any respirable dust violation is “significant and substantial.” Consequently, if the Secretary‘s presumption were “squarely applied to Consol” as the court believes, maj. op. at 1077, then it would have “squarely applied” regardless of whether the inspector omitted the notation, because whether a violation may later form part of a “pattern” under section 104(e) does not depend upon whether the citation states that the violation is “significant and substantial.” The Secretary‘s presumption was therefore “applied” in this case to the same extent as were the unripe preliminary determinations in the cases cited infra note 64, which the court vainly attempts to distinguish. See maj. op. at 1082 n. 13.
As a matter of common sense, Consol‘s appeal involves not the specific violation before us, but merely the Secretary‘s presumptive interpretation of the statutory phrase “significant and substantial.” To review the presumption at this stage, when no “pattern” finding has been made, is no different than reviewing it immediately upon its initial announcement by the Secretary. Since this would be comparable to the situation in the Abbott Laboratories trilogy, where petitioners sought review of regulations prior to their enforcement, Consol‘s appeal is as much “pre-enforcement” as were those appeals.