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STATEMENT OF W. A. "TONY" BOYLE, PRESIDENT, UNITED MINE

WORKERS OF AMERICA; ACCOMPANIED BY EDWARD CAREY, CHIEF COUNSEL, UMW; LEWIS EVANS, DIRECTOR OF SAFETY, UNITED MINE WORKERS OF AMERICA; AND LOREN KERR, M.D., DIRECTOR OF OCCUPATIONAL HEALTH, UNITED MINE WORKERS OF AMERICA

Mr. Boyle. Thank you, Mr. Chairman.

Senator PROUTY. Do you have copies of your statement available for the committee?

Mr. BOYLE. They will be. We will make them available, but we don't have them here with us right now. I am going to leave this with the reporter.

Senator PROUTY. It would be most helpful if we had them prior to the hearings as required under the committee's rules.

Mr. Carey. Unfortunately, Senator, we were not apprised of the hearing until yesterday morning, and that is the reason we are not as prepared as we should be with the statement. Were we given sufficient notice, there would have been no problem.

Mr. BOYLE. We will be glad to submit the statement. It is a brief statement.

Senator WILLIAMS. Well, we didn't have a full week of notice, of course, here, and our wire of invitations didn't go out until Tuesday. We regret, though, that we don't have these here now.

Mr. CAREY. My response was to Senator Prouty, but we would have observed the rules had we had proper time, and that is the reason I made the comment, Senator.

Senator WILLIAMS. Now I have to ask a question. What is proper time-more than 72 hours?

Mr. CAREY. Usually 48 hours.
Senator Williams. Tuesday to Thursday,
Mr. Carey. We got the telegram yesterday morning.
Senator WILLIAMS. Then the blame is on Western Union.
Mr. CAREY. I am not blaming anybody.
Senator WILLIAMS. All right; proceed.

Mr. Boyle. Mr. Chairman, the United Mine Workers of America welcomes this opportunity to appear before your committee and bring to the attention of the American people the lack of enforcement of the Federal Coal Mine Health and Safety Act of 1969. The United Mine Workers of America is gravely concerned about the lack of enforcement.

Senator, you and the members of your committee worked long and hard for many, many months last year to bring forth a strong coal mine health and safety law. True, it is not a perfect law. It has some provisions that were not as strong as the union wanted, but it is still the strongest health and safety law we have ever had on the statute books.

I know that many Members of Congress share with the United Mine Workers our vital interest in the welfare of mine workers. Surely the Congress that overwhelmingly endorsed the need for health and safety in coal mines cannot tolerate the flagrant disregard of its legislative mandate.

Mr. Lewis Evans, UMW Safety Director, on my right, and Dr. Lorin Kerr, Director of the UMW Department of Occupational Health, on my left, have been invited to appear before your committee, and they are here with me to detail to you the specific instances of lack of enforcement. However, before they begin, I would like to bring several matters to your attention.

Enforcement of a goodly portion of the law rests with the Department of Interior and the U.S. Bureau of Mines. For 5 long months the Bureau of Mines has had no director. The UMWA has begged and pleaded with the President to name a director. This period has been marked by jealousy and bickering within the Bureau while the coal miners continue to suffer and die.

We desperately need a competent and strong director with authority to make decisions and to act to see that the law is enforced in a manner consistent with its full requirements and legislative history.

On May 7 of this year, a little over a month after the law became effective, the Department of Interior reduced the fines for first violations of the act to an insignificant token level. The Federal Register of March 28 had carried the Department's initial schedule calling for fines of $500 per day for the first violation of the act that resulted in imminent danger to miners, a $100 fine for a first violation that resulted from unwarrantable failure, and a fine of $25 each for any other first violation.

On May 7 the regulations were changed by Interior to reduce the fines to $20, $4, and $1, respectively, for the first violations during the period between March 30 and September 30, 1970. Establishing these token fines created a dangerous precedent because, as we have observed, "tokenism” has continued to be the hallmark of enforcement of the law.

When we protested this reduction in fines last May, we also urged the Congress to look into the matter without delay to determine why its legislative mandate was being subverted.

On April 23, a group of nonunion coal operators convinced a Federal court in Abingdon, Va., to issue a temporary restraining order against enforcement of the safety regulations under the new law. The Bureau of Mines immediately withdrew its inspectors throughout the country. These small coal mine operators in Virginia alleged the law was unconstitutional and that their rights were violated by the failure of the Interior Department to allow time for them to comment before the Safety regulations became effective.

This "temporary” restraining order is still in effect, and the hearing ! on the matter was originally set for sometime next month. Incredible as it might sound, I have now been informed that the hearing has been rescheduled for sometime in November.

This litigation has certainly created serious doubt in the minds of the members of the United Mine Workers Union. Why were the regulations not published earlier than they were? How can any department of Government charged with enforcing regulations endure a delay of 7 months between the time the temporary order was issued and a hearing on the order is scheduled?

The law directs the Secretary of Health, Education, and Welfare to appoint an advisory committee on coal mine health research no later than March 30.

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Senator Prouty. Mr. Boyle, did your union intervene in any way with respect to this court case you just referred to?

Mr. CAREY. May I respond to it, Senator. In fact, we knew nothing about the hearing, and through a circuitous route we learned after the tempory restraining order was issued that a hearing had been held in Abingdon, Va. At that time, I advised Justin McCarthy, editor of the UMW Journal, who called the wire services of this Nation, and, for the first time, the wire services were alerted to the fact that a temporary restraining order had been issued by a judge in Abingdon.

If we interpret rule 24 of the Federal Rules of Civil Procedure to deny us the right to intervene, the only time you can intervene is when the court decides that the party litigants are not being adequately represented. I think it would be rather brazen on our part to suggest that the Department of Justice was inadequate to defend a statute passed by the Congress of the United States.

However, at the present time, the court has now permitted amicus curiae briefs, and we are in the process of preparing a brief defending the constitutionality of the act and intend to present it to the court as soon as it is completed.

This hearing is not set until sometime in November. We knew nothing about the hearing in August, at which time the hearing was recessed from September, first part of September, until sometime in November.

Now, that is the situation as it stands at the present time. But we have been informed unofficially that the Department of Interior is going to issue regulations in the Code of the Federal Register which we anticipate will make the hearing moot at the time it is scheduled in November 1970.

Senator Williams. Thank you, One observation: I have just been advised the National Independent Coal Operators Association have intervened in the suit. You plan to go in as amicus curiae? They have formalized their position, and this was done on July 22.

Mr. CAREY. That is correct. I see no reason for uswell, the fact we filed it today or file it in two weeks makes no difference, because the hearing is not scheduled until November 1; and if the court should decide the issue is not moot, then our brief will be before the court.

I do not suggest for one moment that the Department of Justice is incompetent or inadequate to properly represent the Congress of the United States or the Secretary of the Interior in defending the statute passed by the legislative body.

Senator WILLIAMS. Well, the opportunity is there to be an intervenor in that suit, and, of course, you object to the long delay and I can understand that, an inordinate delay; and, as I understand, the judge in this case has invited you and others to intervene.

Mr. Carey. He has not invited but permitted us. We were going to do it and be thrown out even if that was necessary, but I think I might further develop the history of this case. This case is a petition for a convening of a three-man court because the constitutionality of your statute is being challenged. That is being done to the chief justice of the Fifth Circuit, Justice Haynsworth, who took several weeks before a three-man court was convened.

Under the law, ordinarily a temporary restraining order is effective for only 10 days, but under the statute if a three-man court is being

convened to determine the constitutionality of the statute, that temporary restraining order remains in effect until such time as its finality.

Senator WILLIAMS. We will return now to your testimony, Mr. Boyle, back to the specifics of the coal mine health and safety law.

Mr. Boyle. The law directs the Secretary of Health, Education, and Welfare to appoint an advisory committee on coal mine health research no later than March 30. The Mine Workers formally protested to HEW early in June that the deadline had passed and no committee had been appointed. We reminded HEW that further delay in naming the committee could seriously threaten the criteria developed by HEW and endanger the availability of funds essential for the extensive research necessary for control and prevention of coal workers pneumoconiosis.

The law also directs the Secretary of Interior to name an advisory committee on coal mine safety research no later than March 30. Again, March 30 passed and no committee was appointed by Interior. We reminded Secretary Hickel in June of the importance of naming a committee.

Here it is August, and to this date neither HEW nor Interior has named advisory committees. This deliberate foot-dragging is intolerable. How can we have faith that these two departments are carrying out Congress' mandate with this sorry record facing us?

Finally, in desperation over the lack of enforcement, we decided to appeal to the President himself. We pointed out that the present attempts of the Interior Department to hide behind legal roadblocks could not continue. We reminded him that after all he had signed the law. We asked for a director of the Bureau of Mines. But still no action.

In some instances we seem to be worse off now than before the law became effective. The Social Security Administration has interpreted the black lung compensation section in such a manner that it led the State of Pennsylvania to amend its occupational disease law. Pennsylvania has stopped payment from its general funds of the $100 monthly payment to victims of pneumoconiosis. The interpretation of the Social Security Administration flies in the face of the meaning of the law as intended by the Congress.

This is the last point I will make, and I want to go into this in some detail because this committee is in a position to take action to help the victims of black lung in Pennsylvania.

The Joint House-Senate Conference Committee on the coal mine health and safety bill clearly stated that where State benefit payments are made from State general revenues, they are not deductible from Federal black lung compensation payments. The conference intent is made clear by the following language:

Benefit payments under State programs funded by general revenues are not included in the maintenance of effort in the House amendment for the reason that they are not considered to be workmen's compensation, unemployment compensation or disability insurance as such programs are generally understood within the context of this benefit program.

The Social Security Administration has chosen to ignore this language although the House amendment was included in the act as signed by the President. The Administration instead informed the State of Pennsylvania that it would deduct $100 of the $144 Federal black lung payment due under the law if State payments continued. Pennsylvania has obliged by amending its law and depriving miners permanently disabled and unable to work of State benefits.

Black lung victims can barely subsist on the $144 Federal benefit, and the Social Security Administration ruling condemns some 27,000 victims in Pennsylvania to abject poverty. This bureaucratic ruling is an inhuman interpretation of the intent and meaning of that section of the Federal Coal Mine Health and Safety Act dealing with black lung benefits.

In rescinding its State law, the Pennsylvania Legislature noted that it was acting because of "Federal administrative interpretation” and that "State amending legislation must be so written to protect the recipient's right to receive both State and Federal payments in the event that any future action of Congress, Federal executive departments or the courts should change the administrative interpretation.” The legislature further stated that “it is also the purpose and intent of this act to protect the continued and future eligibility of present recipients of State payments under the Pennsylvania Occupational Disease laws."

As written, Pennsylvania law now makes it mandatory to reinstitute State benefits at any time Federal law is changed by Congress, court rulings, or administrative interpretation.

As a matter of justice and humanity to 27,000 Pennsylvania miners who now suffer the living death of black lung, the United Mine Workers of America has called upon the Commissioner of Social Security to reinterpret the law in a manner consistent with the clear intent of the Congress. The UMW intends to seek legislation in all coal States to permit both Federal and State benefits for coal miners suffering from black lung. We earnestly solicit the help and support of this committee in seeking to have the Commissioner of Social Security change his administrative interpretation.

Thank you, Mr. Chairman, for the opportunity to appear before this committee.

Senator WILLIAMS. Thank you very much, Mr. Boyle.

You heard my opening statement, and the failure this year to respond to the need for regular inspections is of great concern here. The statistical analysis, to me, is appalling, on the lack of inspection in the mines. This is one part of the law that is crystal clear. If there is any ambiguity about the part you were just talking about, the social security interpretation, all of that, there can be no ambiguity about our legislative demand for inspections.

I just wonder what has been done by you at the international level and your local officials to move in under the section of the law that would apply here, section 103, to demand these inspections within the mines.

Mr. BOYLE. Mr. Chairman, I will be happy to respond to that by telling you I have with me the safety director, who, in the 2212 or 23 years I have been in Washington, has made more trips to the Bureau of Mines and the Department of the Interior than any other safety director we have had, and he is quite familiar with the roadblocks he has been running into with inspectors down there, more so than I am. I would like you to hear from Mr. Evans.

Senator WILLIAMS. Thank you, Mr. Evans.

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