and we have invited Mr. Nader to testify this morning since his studies have included in great, great detail the problems of health and safety in the coal mines.

Mr. Nader, we appreciate very much your response to our invitation. STATEMENT OF RALPH NADER, AUTHOR, CONSUMER ADVOCATE

Mr. NADER. Thank you, Mr. Chairman.

Mr. Chairman, members of the Labor Subcommittee, I am grateful for the invitation to express some views on the workings of a law that thousands of miners died for and hundreds of thousands of miners and members of their families look toward for greater safety in the mines.

For decades King Coal, largely absentee owner-corporations, consumed the bodies and health of tens of thousands of miners who went underground to extract the wealth of a rich land with poor people for the dollar coffers of New York, Pittsburgh, and Chicago corporations. All the industrial genius of these corporations went toward perfecting extractive, processing, distribution, and marketing of coal.

Rendered primitive were the working conditions where their employees depleted their bodies in this country's most dangerous occupation. Occupational violence in the mines came in the form of discernible trauma (called accidents) and the creeping destruction of men's lungs through the deadly black lung disease of coal dust.

What is the level of this occupational violence for the 105,000 coal miners working underground? Let it be compared proportionately and hypothetically with Congress. If the coal miners' work casualty experience were shared by the 535 Members of Congress, over 40 Members of Congress would suffer an injury on the job each and every year. Thirty-nine of these Congressmen would suffer a temporary total disability.

By the frequencies of death experienced by coal miners in 1968, the U.S. Congress proportionately would lose every 2 years three more members by violent, traumatic death on the jobsite.

That is not all. Taking the other, major hazard in the mines-black lung disease or coal miners' pneumoconiosis-a proportionate affliction in Congress among committee chairmen would occur in over half of these senior legislators and most Congressmen would exhibit symptoms ranging from a racking cough with short breath to massive progressive fibrosis ending in death.

Extending the hypothetical a little further, the Department of Interior would be refusing to enforce the coal health and safety laws on the basis of being reluctant to incur the wrath of the Treasury Department which pays the Congressmen and wants to minimize its

costs.

Such hypothetical musings might generate some real empathy for the real situation in the coal mines and why so many coal miners are striking the booming mines. They are weary with the calculated anarchy that is rampant in the coal fields, the mockery of State safety regulation as shown in the recent McAteer report, a report by a group of West Virginia law students that was recently issued, the fraud that is Federal implementation and the continuous indifference of their union leaders. The crash of their hopes that the new law, passed in the indignant crucible of the Farmington disaster, would be different is now evident, and no more so than at the Department of Interior.

The Coal Mine Health and Safety Act was signed by the President on December 30, 1969, and given to the Department of Interior to administer and enforce. The safety features of the law were supposed to go into effect on March 30, 1970, according to the law, and the health features were to become effective June 30, 1970.

In many ways the law which passed through Congress after extensive hearings broke new ground with its specific deadlines and its meticulous attention to statutory abridgment of the customary wideopen discretion permitted regulators. The strategy of evasion, misfeasance, and malfeasance practiced by the Department of Interior, its Bureau of Mines, and other Federal officials reflects an institutional mutiny against the law they have sworn under oath to uphold.

Once again the question is raised as to whether a department should be permitted to combine a promotional, subsidy role for an industry with a safety regulatory responsibility.

Against the background of the most determined congressional mandate in coal mining history, the Department of Interior has performed the following illegal or nullifying acts:

1. Issued an illegal penalty schedule that prejudges the amount of penalties in the face of a congressional requirement to take into ac count case by case factors. This led to a lawsuit by a number of small coal operators which the Department actually encouraged. The result of the suit has been a restraining order against the penalty schedule which the Department promptly interpreted as a stay of its entire enforcement-penalty program. Interior failed to present counsel before the Federal court in Virginia that issued the injunction.

The transcript of that court proceeding shows that the coal operators were advised to bring a law suit by at least one official in the Department of the Interior and that the Justice Department attorney failed to oppose the coal operators' request for an injunction by citing section 513 of the act which prohibited such injunctions prior to a determination on the merits.

Interior's role was brought into greater doubt by the statement of Mr. Gershuny, the Interior lawyer who was on this matter, who informed a House staff member on April 30, 1970, that he "knew the fee schedule was illegal" but that Interior had published it anyway in order to "wash out" the effect of the penalties on the coal operators.

I may add Mr. Gershuny had a ticket and was ready to go to Abingdon, Va., where the suit was brought, but was then recalled by his superior.

2. Interior has failed to date to revoke or repeal the penalty schedule which would free it to begin deploying the sanctions under the law. During this period of calculated, self-imposed paralysis, 15 miners were killed in May, 22 miners were killed in June and around 13 miners died in July.

3. Interior has not followed the spot inspection mandates of section 103 (i) which reads:

Whenever the Secretary finds that a mine liberates excessive quantities of methane or other explosive gases during its operations, or that a methane or other gas ignition or explosion has occurred in such mine which resulted in death or serious injury at any time during the previous 5 years, or that there exists in such mine other especially hazardous conditions, he shall provide a minimum of one spot inspection by his authorized representatives of all or part of such mine during every 5 working days at irregular intervals.

On May 25, 1970, the Bureau of Mines certified that over 220 mines were entitled to an inspection under 103 (i). Had the law been observed, and it was mandatory, over 3,750 spot inspections would have been made in the last 17 weeks since the act was in effect. Actually, fewer than 600 spot inspections were made during this period. In most weeks the average number of spot inspections was less than one-third and often less than one-sixth of the number required.

4. The Department testified before congressional committees and received more than an additional $7 million for "inspections, investigations and rescue work" in the fiscal year that ran from July 1, 1969 until July 1, 1970. Moreover, the budget request was almost a 100-percent increase to $16 million.

For the year that began on July 1, Interior asked for an additional 100-percent increase, another $16 million for this activity and promised in the President's own budget to increase its spot inspections from 1,632 in calendar 1969 to 13,000 in calendar 1970. Yet so far in 1970 they have completed less than 1,000 such inspections and concede that they will not finish over 3,000 before the end of this year.

5. Interior has allowed over 13,000 citations for violations to pile up without any penalties being assessed and applied to the violators. There are indications that the Department wants to use the aforementioned injunction to forgive all these citations or assess them at a trivial $1 level per violation.

6. According to the law, Interior was required to publish no later than March 2, 1970 the regulations prescribing methods for coal operators to implement their coal dust measuring requirements of the act. It took a law suit by three Congressmen on March 24, 1970 to prod Interior to publish these regulations on April 12, 1970 (others were published on March 28, 1970).

The burdens of flouting the act are mounting on the Department of the Interior. Miners have been killed in mines which should have been spot inspected but were not. Clearly, the Federal Government is exposing itself to millions of dollars of potential suits under the Federal Tort Claims Act. Spot checking is not discretionary for the designated mines; it is mandatory.

Other institutions which might have been expected to monitor the Department and its Bureau of Mines have failed. The United Mine Workers did not intervene in the legal proceedings in Virginia which led to the critical injunction. The union has not filed actions in Washington to enforce the law. Its primary activity has been verbal.

I understand that Mr. Evans thinks he is overburdened. He certainly is. He is the only full-time professional representing the United Mine Workers in the safety area in Washington, D.C. There should be at least 10 such professionals in all areas of expertise so that they can at least confront the industry on an intellectual and scientific par.

In addition, the coal mine companies have done petitioning under section 301 (c) of the new act to have the regulations or standards challenged. There is a steel petition relating to a number of complaints in mines and there is a carbon fuel petition and yet 301 permits a waiver, but only on a case by case basis. These petitions are asking for wholesale type waivers and the UMW has not entered into this administrative proceeding.

Again, apropos of the Department of Interior's brotherly fraternal secrecy with the industry, secret meetings have been held in recent weeks with the industry to initiate discussions concerning the amendment of regulations. This is repugnant to everything that Congress stands for and it has said, in enacting this coal mine health and safety act, "There is no room or justification for any secrecy.'

And in this case the minutes or the transcripts were not even provided. There was a representative from the United Mine Workers there. His role was minimal and his action was even less, apart from loud complaints verbally, not in a legal or other formal form.

The act provides in many of its provisions for numerous opportunities for authorized representatives of the miners to participate. This means the UMW and what has it been doing to avail itself of this important and rather unique access at various levels of the act? Virtually nothing.

The White House, the source of so much talk about law and order has done nothing about violence in the mines or crime in the mines. There has still not been a single sentence in any of Vice President Agnew's speeches concerning the depredation and exploitation_of miners' health and safety occurring over a multistate area everyday and every night throughout the year.

The White House has done nothing except to try and appoint a Director for the Bureau of Mines whose qualifications and allegiances were such that they lead to the withdrawal of the candidacy. The Bureau has been without any leadership for over 6 months in the most critical period of its history and many posts under the director's level have not been filled.

I expressed my concern in a lengthy letter to Mr. John Ehrlichman, assistant to the President, which I will submit for the record, on June 17, 1970, about the nonenforcement of the safety provisions and the delays incurred by Interior. There has been no reply nor any acknowledgement of the letter to date.

I might say this is not surprising. The White House and the Justice Department have traditionally been focusing their attention on what they call street crime or what they call the kinds of violence incurred in demonstration on the streets. This is not that kind of violence. It is a silent violence, it is a lethal violence, it is a violence that is at the worksite, it is avoidable violence, it is a legally prescribed violence without legal enforcement. It affects hundreds of thousands of miners and their families. It has been going on for years. The companies are making incredible profits and not pouring some of them back for a decent and safe working place, but it is not the kind of violence as defined within the ambit of legal concern by the present administration.

Congress has shown little significant activity with the exception of a number of statements and the aforementioned lawsuit by three Members of the House of Representatives, Congressman Dent, Congressman Burton, and Congressman Hechler. These oversight hearings are welcome and it is hoped that answers will be forthcoming from the Department and the White House.

What are the miners to do when the major governmental institutions fail them, even after a strong law is passed compared with past legislation?

Our legal system is under severe test in this case. We have always explained the lack of administrative enforcement on the basis that there are huge loopholes and gaps and weaknesses in the enabling legislation.

Here is a bill that was passed with enormous effort on the part of Senators and Representatives over the combined opposition of the steel and the coal industry and some State officials and it is a bill that is mandatory in many areas, explicit, plugging loopholes, and it is still being flouted by the Department of Interior, the Bureau of the Mines, it is not being monitored in its flouting by the White House. There is a total anarchy, institutionalized in the administrative branch of Government and I think it requires something more than a telegram of concern by any committee of Congress. I think it requires a demand for resignation, a demand for repudiation of these officials who have violated their oath of office and demand for disciplinary proceedings where such proceedings can be brought under the civil service law and other precedents.

The point here to be made is that unless these officials who flout the law, who don't enforce it, who connive with industry have something to lose in terms of their positions, their jobs, their prestige, this anarchy and this nonenforcement and this condoning of violence in the mines is going to continue unabated and Congressional hearings and telegrams and expressions of concern aren't going to do a thing except defer the conscience stricken nature of a number of concerned Members of Congress.

What are the miners to do when the major governmental institutions fail them even after a strong law is passed compared with past legislation? All they can do is to go out on wildcat strikes. This is their way of recognizing that the coal industry and the Department of Interior are outside the law, indeed are lawless.

A serious reevaluation is needed by Congress of the Department of Interior's capability to handle the job. Promotion of the coal industry and safety standards for the coal industry do not mix. They should be separated. In the meantime, however, the following is recommended: 1. A request should be made of the General Accounting Office to determine how the budgetary increases have been spent.

2. Members of Congress should go to court, if necessary, to require the Department to enforce the spot inspections section of the law.

3. Congress should ask the Justice Department to render an opinion as to whether the Federal Tort Claims Act is being violated and what the risk of massive liability suits is under the present situation. 4. The subcommittee should demand a full explanation of the shocking and willful neglect of defending the Government in the Virginia case brought by the small coal operators.

5. The subcommittee should consider amendments which would deal with improving the enforceability of the various provisions of the act in terms also of more explicit accountability on the part of culpable officials.

6. There should be an effort to compensate those miners or their next of kin for injuries incurred because the Government failed to inspect or enforce the provisions of the law.