Contentions of the Parties

Associated contends (1) that the Judge failed to make specific findings and to state reasons for his findings and conclusions on all of the material issues of fact, law, and discretion presented on the record; (2) that it did not violate section 303 (g) of the Act as found by the Judge; and (3) that the Bureau failed to establish the occurrence of the remaining violations by a preponderance of the evidence.

The Bureau contends that the Judge properly found that the violations occurred and that he satisfied

the requirements of the Administrative Procedure Act (APA).2

Issues Presented on Appeal

I

Does the Judge's decision comport with the requirements of section 557 of the APA?

II

Did the Judge err in determining that Associated violated section 303 (g) of the Act?

1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970).

25 U.S.C.A. § 557.

III

Did the Bureau sustain its bur

six statutory criteria. Analyzing the decision as it is presently consti

lations of the Act?

Discussion of the Issues

I

The Board finds from reading the Judge's decision that it clearly fails to meet the following minimum requirements for an initial or recommended decision as set forth in section 557 of the APA:

*** All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of

(A) findings and conclusions, and the reasons or basis therefor, on all material issues of fact, law, or discretion presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.

by the Judge under "Findings of Fact" amount to three conclusions of law, four "basic" findings of fact, and only one "ultimate" finding of fact, i.e., "(7) The Respondent made a good faith effort to achieve rapid compliance after being informed of the violations." (Judge's decision, hereinafter Dec. 3.)

With respect to the Judge's four "Conclusions of Law" (Dec. 4), the first two are simply background statements; the third, that the Act has been violated, is a correct conclusion of law, but is without direct support in the findings of fact; and the fourth is a mere recitation of a statutory provision.

Under the caption "Civil Penalty" (Dec. 4), the Judge discussed but made no findings as to the ability of the operator to continue in business. In the same section, the Judge unnecessarily repeated three basic findings of fact, referring to them as "extenuating circumstances" without demonstrating their relevance to the decision. Finally, under the subtitle "Application of Assessment" (Dec. 4), the Judge stated with respect to the six criteria in section 109 (a) (1) of

4 The Judge erred by failing to clearly apply the presumption expressed in Hall Coal Company, Inc., 1 IBMA 175, 179, 79 I.D. 668, 672, 2 CCH Employment Safety and Health Guide par. 15,380, at p. 20,548 (1972):

"The evidence of whether a penalty will affect the ability of the operator to stay in business is, of course, peculiarly under the operator's control. There is, therefore, a presumption that the operator will not be so affected in the absence of contrary evidence."

the Act: "*** [A]ll evidence in the record bearing on the criterion [sic] have been considered." The Judge then proceeded to make ultimate findings of fact on some, but not all, of the criteria with respect to 11 alleged violations, and assigned amounts of penalty presumably based thereon. However, no basic findings or reasons for the ultimate findings of negligence or gravity were set out.5

Under the same subtitle, "Application of Assessment," the Judge vacated two notices in summary fashion, i.e., without stating any reasons for his findings of "No violation." The Board finds that the Judge again erred by taking dispositive action on a material aspect of this case based on an improperly stated conclusion of law and without showing supporting findings and reasons.6

In the adjudication of every notice of violation, the Judge must

The Judge speaks of a "serious" violation, which the Board believes is a reference to "gravity" in section 109 (a)(1) of the Act. • See Bell Lines Inc. v. U.S., 263 F. Supp. 40 (D.C.W.Va. 1967), at 46:

* * [T]he requirements of the Administrative Procedure Act are fundamental to due process and *** all administrative decisions shall include such findings and conclusions as are reasonably necessary to intelligently inform the parties involved of the purport thereof, as well as the reasons therefor..."

In USV Pharmaceutical Corp. v. Secretary of HEW, 466 F.2d 455, 462 (D.C. Cir. 1972), it was stated:

make findings of fact, which, when compared with the relevant statutory or regulatory criteria, should lead him to a conclusion of law, i.e., the Act was or was not violated. If the Judge's conclusion is that a violation of the Act occurred, he must then make ultimate findings of fact on each of the six statutory criteria in section 109 (a) (1) and state reasons for each finding to properly determine the amount of the penalty warranted. When relying on specific testimony of a witness, citations to the transcript of the hearing may be one acceptable method of showing the reason (s) for making a required finding. These are requisites for an adequate understanding of the decision by the parties and for a meaningful administrative review by the Board if an appeal is taken."

As a general rule, the Board will not remand an initial decision by an Administrative Law Judge simply because findings of fact and conclusions of law are mislabeled or unlabeled; however, where these requisites are obfuscated or absent,

7 "In discussing the necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be (4) from this finding the decision will follow by the application of the statutory criterion. * *" Saginaw Broadcasting Co. v. F.O.C., 68 App. D.C. 282, 287, 96 F.2d 554, 559, cert. denied, Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 S. Ct. 72, 83 L. Ed. 391 (1938).

II

The Judge erred in holding that a violation of section 303 (g) of the Act occurred. The Bureau Inspector admitted and the Board finds that Associated was taking air measurements, but was failing to record the specific readings (Transcript of Hearing, hereinafter Tr. 64) as of November 5, 1970.

The Board has held in Robert G. Lawson Coal Company, 1 IBMA 115, 121, 79 I.D. 657, 2 CCH Employment Safety and Health Guide par. 15,374 at p. 20,536 (1972);

(6) Notice of Violation 4 GWH (7/27/ 70) charges a violation of section 303 (g) for the failure of Lawson to take weekly air readings at the main return and for failure to record weekly air readings. Section 303 (g) requires that:

*** A record of such measurements shall be recorded in ink or indelible pencil in a book approved by the Secretary ***" (Italics added.)

Lawson correctly contends that the Secretary did not promulgate regulations concerning approved recording books until November 1970. See 30 CFR 75.1803 (35 F.R. 17890, Nov. 20, 1970). Since no recording book had been approved by the Secretary at the time of the inspection of Lawson's mine, the Bureau cannot properly charge Lawson with a failure to record the weekly air readings. Furthermore, Lawson's statement that he was making the air readings required by section 303 (g) is unrefuted. The burden is upon the Bureau to prove that a violation did occur and since the record does not indicate the basis for the inspector's allegation we find that the Bureau has failed to prove a violation by a preponderance of the evidence. Therefore,

Notice No. 4 GWH (7/27/70) is VACATED.

We hold that Lawson, supra, controls the determination of the issue in the instant case. Therefore, the judge's decision must be reversed with respect to Notice of Violation 2 RGN (Exhibit 10), which is hereby vacated.

III

With respect to the remaining violations, including those which the Judge vacated, we conclude that the decision is too incomplete for the Board to determine how the Judge reached his result; therefore, a remand of this matter is necessary. The Board leaves to the Judge for reconsideration and redetermination whether the Bureau sustained its burden of proving each of the violations and the amount of the civil penalty warranted for each. In the course of making his redeterminations, the Judge should observe the principles set forth in I, supra.

ORDER

WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43) CFR 4.1 (4)), IT IS HEREBY ORDERED that: (a) the Judge's decision with respect to Notice of Violation 2 RGN (Exhibit 10) IS REVERSED and the Notice IS VACATED, and (b) the remainder of this proceeding IS RE

MANDED for a new decision in accordance with the views expressed herein to include: