due care, does not perform this duty with due care, and people are injured as a result.

Consequently the Claims Act gives the injured party a right to sue the Federal Government in a similar fashion that the injured party would have a right to sue any other individual or could. The ambiguities come in the area as to whether the Government's activity was ministerial or of a different order or nature, not so closely related to ministerial functions.

The beauty of the drafting of this act is that it eliminates one major loophole in the act and that is where there is a discretionary situation, where the act says: They may do this or should do this within a certain exhortory period but not a definite period.

When the act allows a discretionary performance, then it is very difficult for a complainant, an injured party or a miner to prove that the Government violated this discretionary performance.

The Health and Safety Act made a whole host of obligations mandatory. That is why the issue of practical recovery under the Federal Tort Claims Act is being raised.

Senator SCHWEIKER. You also make the statement later on in reevaluating the need of the Interior Department's capability to handle the job and say: promotion and safety do not mix.

I wonder if you would elaborate a little on that? That is in terms of what we ought to be thinking about or why it is incongruous.

Mr. NADER. Yes, in addition to what I replied to Senator Randolph who had asked that question. I think the remedy simply is to split off the two. I don't think the safety and health of the coal miner can tolerate this conflict of allegiance which is oftentimes very little of a conflict, that is a surrender in area after area.

In other words, the calculations of the industry are the factors for delay, nonenforcement, ignoring the health standards, inspections, and the like and enforcement.

I think the authority could be given to the Department of Health, Education, and Welfare or to an independent board whose sole function would be the safety and health law.

Senator SCHWEIKER. One of the problems as you have heard and I point out myself is the matter of not having a Director and one of the names that has been suggested by several of us is Dr. Walker. I am not particularly interested in your personal reactions to Dr. Walker, but I am interested in the kind of man you think ought to be heading up this agency.

I proposed this name with some others because he had an engineering and administrative background and was fairly objective in terms of not being tied into either side of the ongoing situation and I wondered if you had some thoughts as to caliber, type of man or basic requirements needed to fulfill this obviously rather difficulty position? Mr. NADER. Well, the short answer to that is we need a man who believes in law and order and I thought the Republicans had plenty of men like that. In more detail, we need a man who above all has that sensitivity and that feeling for what is happening to the health and safety of the coal miner and families in Appalachia in general. That is the single most important requirement.

That is the normal feeling, an intensity of concern coupled with the obvious qualifications of training and administrative experience perhaps, but it all depends on the individual. I can see an individual who

has a great concern about the problem with little administrative experience doing a much better job than an individual coming up through the ranks, knowing all of the tricks of bureaucracy and refuse to deploy expertise in the direction of stringent enforcement of the law.

We need a man with the usual veracities, the courage, hard work, independence, a kind of regulatory sensitivity to the byways of the industry, how to influence the industry, how to split it off against one another and accentuate the better producers and shame the lesser producers and a man with perhaps the kind of qualifications that we don't dare hope for, that is, a man who can actually activate the United Mine Workers leadership in representing the rank and file with all of their massive resources because the Bureau of Mines would have to do far less work if that great potential countervailing force of the union did the job.

In fact, Government oftentimes has to do less when private countervailing forces do their job. We would have less problems in auto safety design if the insurance industry did their job in monitoring, goading, reading and doing research in automotive safety design, but it does not occur that way.

Senator SCHWEIKER. Do you have any specific names or recommendations of where to begin, sir, for a person like that?

Mr. NADER. I don't have any.

Senator SCHWEIKER. This is a problem and that is the reason I threw a name in, we need somebody to do the job.

Mr. NADER. I don't have specific names because I have not looked for them, but I have found that the mere recommendation of a name to head a Government agency on my part eliminates further consideration.

Let us take, for example, suppose Congressman Hechler quit his post in the House of Representatives and became head of the Bureau of Mines. Do you think things would stay the same? I mean that is an example of what I mean, that kind of drive, seeing things as they

are.

Senator SCHWEIKER. I value your hypothetical comparison of Congress superimposing the disabilities and liabilities of occupational black lung fatalities and accident rates as very, very striking and I want to say I share your enthusiasm in that situation and if that situation prevailed, no doubt there would be a lot more action out of Congress than we can get at the present time.

Mr. NADER. I might add, Senator, in that respect, if the telegram is to be sent, that I might respectfully suggest that the telegram ask for a report within 2 weeks from the White House on the administration enforcement of the Coal Mine Health and Safety Act.

Senator SCHWEIKER. That is all the questions I have, Mr. Chairman. Senator WILLIAMS. I have only one observation, Mr. Nader, concerning your observation about the importance of the record being made public when the Bureau discussed amendments and we had a quasi-public situation in June. They were not public and they were not private.

I had a representative there. It was my suggestion that this particular part of the rulemaking authority be made a public proceeding which I will say they responded to and did make it a public record. I agree with you that, of course, rulemaking under the law should be

public, but the agreements and arrangements and other things you suggest should be more public than they are, is that right?

Mr. NADER. It is more important in every case to get the Bureau of Mines to commit itself in writing, not to tell you just what has happened at the meeting of June 17, but to tell you in writing it will not be repeated at this kind of secret negotiation and once they have it in writing you have a standard by which to evaluate, otherwise you would have scored one victory, so to speak, gotten the information out of the June meeting but then everything else proceeds as normal with further secret meetings.

Senator WILLIAMS. Thank you.

Mr. NADER. Thank you very much.

I might ask for the record, Senator, to submit my letter to Mr. Ehrlichman, a copy of the complaint by Congressmen Hechler, O'Hara, and Burton, a copy of the letter to Secretary Walter Hickel by, again, Congressmen O'Hara, Burton, and Hechler, if those three could be

submitted for the record.

Senator WILLIAMS. We will include them. Thank you very much. (The information referred to follows:)

Mr. JOHN EHRLICHMAN,

WASHINGTON, D.C., June 17, 1970.

Assistant to the President for Domestic Affairs,
The White House,

Washington, D.C.

DEAR MR. EHRLICHMAN: I would like to request your intervention in a serious and growing problem pertaining to the administration of the Coal Mine Health and Safety Act of 1969. The President approved it on December 30, 1969. The safety features of the law then went into effect on March 30, 1970. The health features will be effective June 30.

Since enactment, coal miners, and many in Congress, have seen that Act reduced to a practical nullity because Department of Interior officials, in violation of its specific provisions, have taken a series of actions which have undermined the enacted version, delayed implementation, and stifled enforcement. Most of those administrative actions have had the effect of benefiting the coal operators. The union chiefs again are doing little to correct this situation or to protect their men.

The following examples demonstrate Interior's clear pattern of refusal to follow the terms of the Act, and also show how urgently White House intervention is now needed to require Interior to enforce these law and order mandates of the Congress :

(1) 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. The March 2nd deadline had been specifically set by Congress to assure sufficient time for the operators to comply before the effective date of the standards themselves. Interior did not publish these regulations until April 12, 1970, after three Congressmen filed suit on March 24, 1970 against Interior and HEW. In addition, the safety regulations published on March 28, 1970 failed to follow the rulemaking procedures as required by the Act. Thus, both inaction and inept actions by Interior officials have already seriously prejudiced the enforcement of the Act. Since that Act contains over two dozen other deadlines (which are decidedly necessary for the success of the Act), I urge that you create a monitoring process to insure that these deadlines are respected.

(2) When Interior did put out the required safety regulations, many of them represented, at least in the view of some Congressmen, a substantial departure from the explicit intent of Congress. Many regulations looked as if they had been drafted by coal operators to minimize costs. For example, while the new law for the first time required mine escapeways to be sufficiently open that even "disabled persons" could quickly escape the mine workings in the event of emergency, the Interior regulations substantially took away that guarantee by allowing these escapeways to be as small as the seam of coal minus any support47-135 0-71-16

ing structures. Thus while the law mandated the easy exit of disabled men even if they had to be carried by others, the regulations did not secure those rights, but allowed operators to keep escapeways less than 2.5 feet high in some cases.

The need for review of such actions is clear. Within the last few days Interior has announced the formation of a small committee to review these regulations; however, there is no indication that the reform Union forces or other parties will have a means even to preserve the limited benefits of the present regulations. I urge you to insure the integrity of any such review.

(3) The March 28, 1970 regulations promulgated by Interior put into effect a penalty schedule. This schedule was not only unnecessary but also represented a clearly illegal prejudgment of the difficult but necessary matter of assessing penalties for different law violations. This prejudgment (of the size of the penalty to be assessed) was made in the face of the Congressional language mandating that the size of penalties would be determined only on a case by case basis. Thus the operation of the schedule is necessarily inequitable to at least one segment of the industry, and normally it is unduly harsh on small coal operators while easy on large coal operators since the violations of each are penalized equally and the small operator has fewer resources with which to invoke the hearing process to challenge the penalty. Basically, the assessment of penalties can and should be on a case-by-case basis.

Interior's fee schedule, together with other acts, resulted in a law suit being filed against them by the small coal operators. Following the filing of the suit by the small operators, Interior was given one day's notice of a proposed court hearing on the operators' request for an injunction to stop enforcement of the Act, but remarkably enough, Interior failed even to appear in the Federal Court in Virginia. I request your investigation as to whether there is some better explanation for this failure than that suggested by the transcript of that Court proceeding. That transcript shows that the coal operators were advised to bring a law suit by at least one official in the Department of the Interior, and also shows that the Justice Department Attorney failed even to resist the Coal operators request for an injunction by citing section 513 of the Safety Act which is prohibited such injunctions prior to a determination on the merits. The resulting Federal Court action was to issue an injunction against the enforcement of certain parts of the Coal Act-an action which certainly would not have occurred if the government and the coal miners had been represented adequately. Even more seriously, Interior's good faith in this fee schedule matter was further brought into doubt by the statement of Mr. Gershuny, the Interior lawyer who has handled this matter, who told 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.

Each of these matters, even if viewed individually, raise such large questions as to the good faith of the Department of the Interior in administering this Act, that I would appreciate your assessment of these matters, and your indication as to what corrective action is being taken.

(4) To alleviate the crisis caused by the law suit, and to attempt to find explanations for the non-enforcement of the Act, the Senate and House Committee staff members who participated in the enactment of that law called for, and had. informal discussions of these matters with Interior officials on May 1 and May 14th, 1970. The transcript of these meetings, which corroborates much of what has been discussed above, also shows at least non-partisan consensus that the effect of the law suit now could be largely nullified if Interior officials were to rescind their inequitable and unnecessary penalty schedule. Moreover, specific recommendations to that effect were made by staff members of both parties. Nonetheless, over four weeks later, Interior still refuses to take that constructive action. As a result, a form of anarchy prevails in the coal fields since coal operators can and do operate in violation of the law without fear of penalty. Not surprisingly, the level of death and injury mounts daily; in April over 19 fatalities were recorded, and over 65 men have died between January 1 and May 31 of this year. I urge you to review this refusal to rescind the penalty

schedule.

(5) Section 103 (1) of the Coal Mine Health and Safety Act requires that the Secretary of Interior "provide a minimum of one spot inspection by his authorized representative of all or part of" a mine having a history of certain hazardous conditions "during every five working days."

There are, by the Interior Department's own definition of Section 103 (i). about 220 U.S. coal mines which are required to have a spot inspection every 3 working days. Yet the Interior Department's own statistics show that fewer than

20 spot inspections were actually made by the Department at these mines between April 1, 1970 and May 6, 1970, a period in which over 1000 such spot inspections should have been made. Moreover, the Department of Interior has openly admitted that it is not enforcing this section of the Act, and has no plans to do so for the next two years, in spite of the fact that they are receiving more than 12 million additional funds in President Nixon's 1970 budget as compared to 1969. Moreover, Interior officials assured the Congress that these funds were to be used to implement their responsibilities under the new legislation. In the face of this record, and the specific language of the statute itself, how can the Department of the Interior ignore this legal requirement for spot inspections?

I urge you to consider the implications for the Administration in terms of its legal liability to families of miners killed or injured in mines whch are not receiving the spot inspections guaranteed by the law.

I urgently request that you take steps to reverse this decline of administration and enforcement of an act of such importance to hundreds of thousands of miners and their families.

Sincerely,

R. NADER.

[From the Congressional Record-House, July 1, 1970]

IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION No. 861-70

AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENT, FOR ORDER IN THE NATURE OF MANDAMUS TO COMPEL DEFENDANTS TO ISSUE REGULATIONS AND FOR INJUNCTION

Philip Burton, Ken Hechler, James O'Hara, John Mendez, and all other Coal Miners, Plaintiffs, v. Walter J. Hickel, Elliott Richardson, Fred Russel, Hollis Dole, Earl Hayes, and Henry Wheeler, Defendants.

1. This is an action against the Secretaries of the Interior and Health. Education, and Welfare and their subordinates for a declaratory judgment that they failed to perform ministerial duties imposed upon them by an Act of Congress, to compel them to perform such agency action timely in the future and to enjoy the enforcement of unlawful regulations. This Court has jurisdiction under the Federal Coal Mine Health and Safety Act of 1969, P.L. 91-173, 83 Stat. 742 (1970), 5 U.S.C. Sec. 706, 28 U.S.C. Secs. 1331, 1361 and 2201.

PLAINTIFFS

2. Plaintiffs Burton, Hechler and O'Hara are members of the House of Representatives of the Congress of the United States and were sponsors of the Bill which was enacted as the Federal Coal Mine Health and Safety Act of 1969, P.L. 91-173, 83 Stat. 742. Plaintiffs Burton and O'Hara are members of the House Education and Labor Committee which reported the Bill. Plaintiff Hechler represents a Congressional District in which many coal miners live.

3. Plaintiff Mendez is a coal miner and a member of the class that the Federal Coal Mine Health and Safety Act of 1969 was intended to benefit. He brings this action on his own behalf and on behalf of all other coal miners. The class of coal miners represented by plaintiff Mendez is (1) so numerous that joinder of all members is impracticable; (2) there are questions of law or of fact common to the class; (3) the claims of the representative party are typical of the claims of the class; (4) the representative party will fairly and adequately protect the interest of the class; (5) the parties opposing the class have acted on grounds generally applicable to the class; (6) the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications; and (7) questions of law and fact common to members of the class predominate over any questions affecting only individual members so that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

DEFENDANTS

4. Defendants Secretary of the Interior and Secretary of Health, Education, and Welfare, sued in their official capacities, have the duty of enforcing the Federal Coal Mine Health and Safety Act of 1969.