Under section 109(a) of the Act, an operator who violates any provision of the Act, except Title IV, shall be assessed a civil penalty of up to $10,000 for each violation, after an opportunity for a hearing. It also provides that, in deter mining the amount of the penalty, the Secretary (whether a hearing is held or not) "shall consider the operator's history of previous violations, the appropri ateness 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 operator charged in attempting to achieve rapid compliance after notification of a violation."

The schedule sets a fine for first violations committed by an operator in a 12 month period (a) for imminent danger violations at $500.00; (b) for unwarranted failures (which the conferees describe as a "failure of an operator to abate a violation he knew or should have known existed, or the failure to abate a violation because of lack of due diligence, or because of indifference or lack of reasonable care on the operator's part") at $100.00, and (c) for all other violations at $25.00. Miners who willfully smoke or carry smoking materials underground are charged $5.00 out of a possible $250.00. We understand that. by first violations, the Department means-violations cited in a first inspection. Violations cited in second and later inspections in such period incur a progressively greater fine.

We are strongly opposed to this illegal fee schedule or "justice of the peace" type of approach to civil penalties because:

(a) It is contrary to law. The statute requires that the above cited factors be considered when a penalty is assessed. The fee schedule is an assessment of a penalty in advance of the violation and does not consider these factors at all Thus, a negligent operator whose violation resulted in death or injury could pay his $25.00 and avoid a higher penalty when the factors are considered.

(b) It establishes the same penalty for a 500 man mine operator and for a ten man mine operator. A $25.00 penalty against a Bethlehem Steel mine is a mere slap on the wrist. Even in the case of a ten man mine, a $25.00 fine may not be appropriate.

(c) In the case of a miner, a $5.00 fine for "willfully" smoking underground in a mine endangers the lives of his fellow miners. It amounts to a mere license to smoke. We are sure that the workers themselves would support a more realistic fine where, as the law provides, there are proper proceedings instituted before the fine is assessed.

We call upon the Department (1) to rescind this fee schedule in the regula tions immediately; (2) to reassess civil penalties according to law for violations arising since April 1; and (3) to establish a policy that provides meaningful penalties for all violations consistent with the above factors.

On April 20, 1970, a House staff member talked by telephone to Assistant Solicitor Gershuny of the Department who apparently will handle litigation under the new law. Mr. Gershuny stated that he knew when he drafted the fee schedule for the Department that it was "illegal", but it was needed to “washout" some of the proceedings before the Board, since the Bureau anticipated about 25,000 violations per year. He also contended that the Act impliedly authorized the Secretary to "compromise" civil penalties once assessed.

We request a detailed explanation as to why the Department, knowing the fee schedule was illegal, published it. We understood from staff discussions with Department officials, during consideration of the civil penalty provisions proposed by it, that Bureau officials (other than inspectors) would assess the penalty subject to the right of the alleged violator to request a public hearing We, therefore, would like to know why it is necessary or desirable for the Board or a hearing examiner, who are not administrators, to assess civil penalties when a hearing is not requested.

Finally, since Congress failed to adopt the Department's civil penalty provi sions which provided for administrative compromise, and did not specifically authorize such compromise, as it did in the case of other recent statutes, we fail to see how the Department now believes from the statute and its legislative history that administrative compromises are authorized after considering the above cited factors. We would appreciate your providing us with the Department's rationale for administrative compromises.

VI. Burden of Proof

Section 301.68 of the regulations (35 F.R. 5258) states:

"In proceedings under Subparts B, C, and F of this part, the burden of proof shall be on the Bureau of Mines. In all other proceedings, the burden of proof shall be on the moving party."

Under the second sentence of the regulation, the moving party, who is the miner or his representative, has the "burden of proof" on applications for compensation or for review of discharge actions or acts of discrimination under section 110 of the Act.

We believe that this requirement is totally inconsistent with section 110(a) of the Act. It is an outrageous attempt by your Department to bail out the coal operators from enforcement of section 110 of the Act which protects the worker's salary and job status. Under section 110 (a), compensation to the miners is guaranteed for specified periods where a closure order is issued under section 104 of the Act, where a final unwarrantable failure closure order is issued, and when an operator violates or fails or refuses to comply with a section 104 closing order. Only in the case of an unwarrantable failure order is there any requirement that the order be a final one or that there be an opportunity for a hearing. In the other cases, the miners must be compensated once an order is issued, even if, on appeal, it is vacated. There is no proceeding in such cases in which the miner or his representative must prove a violation.

Further, under section 110(b) of the Act, the operator is prohibited from discharging or discriminating against a miner under the circumstances prescribed. If he violates the prohibition, he is subject to the penalty section of the Act. The Secretary must enforce this prohibition too on his own motion or on application by the miner or his representative. He does so by investigation which may or may not include a public hearing. We fail to see why the miner or his representative should bear this burden.

We believe that the last sentence of section 301.68 should either be abandoned or substantially clarified consistent with the requirements of section 110 of the Act. Please advise us when you do so.

Subpart B relates to applications for review of orders and notices, subpart C to review of notices under section 104 (h) of the Act, and subpart F to assessment of penalties. Thus, in these three proceedings the "burden of proof" is on the Bureau. Please provide us with a legal opinion from the Department's Solicitor (a) establishing the statutory authority for placing this burden on the Bureau and not on the appellant in each case; and (b) setting forth what the Solicitor considers sufficient proof in each proceeding for the Bureau to sustain this burden.

VII. Inspections

Your Department's news release of April 3, 1970, announcing the adoption of an "Interim Coal Mine Inspection Plan" quotes your statement that the Bureau has "only about 220 fully qualified coal mine inspectors now," and that 50 more have been hired and are being trained. Yet, in testimony before the House Subcommittee on Department of the Interior and related agencies, the Department's witness, Mr. Wheeler, testified that you "have about 300 coal mine inspectors at the present time." (Hearing, p. 806). Why this discrepancy?

We are concerned about the slowness of the Department's efforts to hire and train inspectors. We, therefore, would appreciate promptly receiving your response to the following questions:

1. How many inspectors will be needed to make four complete inspections a year under the Act?

2. How many inspectors will be needed to carry out inspections under section 103 (i) of the Act?

3. What is your authorized personnel ceiling on inspectors?

4. (a) Has the Department sought new increased funds and personnel authorizations in this fiscal year for inspectors?

(b) If so, how much money, and how many positions?

(c) If not, why not?

5. (a) Is the Department seeking increased funds and personnel in the fiscal year 1971 budget now before Congress for inspectors?

(b) If so, how much money, and how many positions?

6. What salaries are being offered to attract qualified people as inspectors?

7. (a) How long is the training period for inspectors?

(b) When did you begin hiring new inspectors?

In his statement before the House Subcommittee on Appropriations, Dr. Hayes stated (supra, p. 783):

"In the past the Bureau has inspected every underground coal mine twice a year and we have managed to inspect most of the large coal mines three times a year."

While we recognize that the new law has many more mandatory provisions to be enforced during an inspection than existed under the 1952 Act, many of these provisions are similar to the old voluntary Code provisions which were also enforced during those inspections. Thus, if the Bureau inspected every mine completely twice last year, as the above statement indicates, and most of the larger mines three times last year, how long will it be before the Department makes all of the inspections required by the Act for its first full year in operation? In testimony before the House Subcommittee on Appropriations, the Department's witnesses testified that the Administration cut $8.3 million from the Department's budget for Fiscal Year 1971 for the enforcement of the new Federal Coal Mine Health and Safety Act of 1969. (See hearings, supra, p. 805.) With the mandates expressed by Congress to the Department to increase its enforcement activity now, how is it possible that the Administration would apparently disregard that mandate and reduce substantially the Department's budget request in this area? What was the use intended for this sum? Did the Department appeal the cut by the Budget Bureau? If so, what was the Budget Bureau's justification for this cut?

We are also disturbed about your program of representative inspections with the stated objective of inspecting all underground coal mines by the end of June. 1970. While it is, of course, desirable to inspect all mines as soon as possible, the Congress in enacting the new law was not concerned with the volume of inspections, but with the adequacy of each inspection. The law contemplates four complete inspections, plus spot inspections. The "partial, but representative inspection" is a new concept altogether which was never previously mentioned during consideration of the new law. The Associate Director for Health and Safety describes, in his March 26, 1970 memorandum to Dr. Hayes, each of these as follows:

"1. A spot inspection, which would enable us to get into all of the mines as quickly as possible but which would not be extensive enough to be informative to the operator as to what is required throughout the entire mine;

"2. A regular inspection, which would extend throughout each mine inspected, but which would, because of the time required for each such inspection, leave some mines for a rather long time before an inspection could be made under the new law; and

"3. A partial, but representative inspection (PBR inspection), in which we would inspect enough, but only enough, of a mine to be representative of the entire mine insofar as health and safety are concerned. A PBR inspection would take longer than a spot inspection but not nearly as long, in most instances, as a regular inspection."

The law now requires four complete inspections per year. The Administration proposed three per year in its legislative proposal of March, 1969. Did the Administration contemplate PBR inspections then? If not, how did the Administration intend to comply with its own recommendation in one year?

VIII. Accidents

We would appreciate your providing us with the complete details concerning the two mine accidents of a few days ago which killed two men-one a roof fall and one an ignition—and the actions taken by the Bureau to prevent them in the future. Also, we would appreciate your providing us with the details concerning the accident at the Helen Mining Company in Homer City in Pennsylvania, including the area of the mine inspected just prior thereto, a copy of the inspection report, and an identification of the area of the mine where the accident occurred.

IX. Interior's criticism of statutory safety standards

It is inconceivable to us that a Federal agency, such as the Department of the Interior. would appear before the Appropriation Committee of the House of Representatives after Congress enacted the 1969 law and criticize various provisions of it after remaining silent on the provisions during its consideration by the legislative committee of the House. Yet. the Department's witness did just that on March 2, 1970, when he said (hearings, supra, p. 815-816) as follows:

“Mr. WHEELER. Madam Chairman, overall, I do not think anyone would have any question with the objectives and law itself. But there are a few provisions and I would like to cite one of them to you there is a provision in the law that all mine cars after a year must be provided with automatic brakes and there are no automatic brakes that can be put on mine cars.

"Mrs. HANSEN. Are they nonexistent?

"Mr. WHEELER. There are none in existence.

"Mrs. HANSEN. What are you going to do about that provision?

“Mr. WHEELER. Maybe we have some consternation in our own organization.

I think what we will have to do is to cite them as being in violation of the law, because they will be.

"Mrs. HANSEN. Is anyone in the process of developing automatic brakes?

"Mr. WHEELER. Yes, ma'am. We have met with all the car manufacturers to first find out if there are any brakes, and we found out there are none. And since then we have been talking with them as to how we can get some developed as soon as possible.

"Mrs. HANSEN. Has the Department appeared on behalf of this provision before the Education and Labor Committee?

"Mr. WHEELER. We have not gone back to them yet. We will have to after we study all the provisions of the law. We are now studying this law section by section to determine what the problem areas are. This is just one which is obvious on the face of it that I have decided to use. There are others.

"Mrs. HANSEN. Will you please insert in the record other areas of the Coal Mine Health and Safety Act which cause similar problems?

"Mr. WHEELER. Yes, ma'am."

(The information follows:)

"In addition to the matter of the act requirement for car brakes which must be resolved before March 30, 1970, there are other unresolved problems. Among these are:

"1. Sec. 315 of the Act provides that the Secretary may require that rescue chambers, properly sealed and ventilated, be erected at suitable locations in the mine. Such chambers to be equipped with first-aid materials, and adequate supply of air and self-contained breathing equipment, an independent communication system to the surface, and proper accommodations for the persons while awaiting rescue, and other equipment. Where shelters are required, there shall be an approved plan for the erection, maintenance, and revisions of such chambers and an approved training program for the use of the shelter.

"Much of the technology involved in unclear, especially in connection with an integrated standby system. A contract for the development of a total rescue and survival system should be awarded shortly and completed within a year thereafter.

"2. Section 317 (e) requires the Secretary to propose standards by December 30, 1970, under which all working places in a mine shall be illuminated by permissible lighting within 18 months after promulgation of the standards. "The nature and content of these standards is being considered in the light of practicability. Some research may be required and new permissibility standards may have to be developed. These efforts are being carried on at a rapid pace in order to meet the deadlines. It is not certain, however, that the present uncertainties can all be resolved in the available time.

"3. Section 317(j) authorizes requiring electric face equipment, including shuttle cars, be provided with canopies or cabs to protect the miners from roof falls and from rib and face rolls where the height of the coal bed permits.

"Practical designs are under consideration and consideration is being given to determining the minimum height of the coal bed which will permit installation of such devices.

"4. Section 317(g) provides that the Secretary shall require, when technologically feasible, that devices to prevent and suppress ignitions be installed on electric face equipment.

"Research on an ignition suppression system has been carried out in the Bureau's laboratories and experimental mine for several years. We are presently concentrating on converting out basic knowledge into a commercially feasible system. Progress is being made and emphasis placed on the project; nevertheless, it is not possible to set a specific completion date."

It is obvious that the Department's witness is not very familiar with the provisions of the Act on making this criticism. None of the standards referred to in the Department's four numbered paragraphs just quoted requires action by March 30, 1970. In the case of the rescue chambers, the Department, by

47-135 0-71-17

section 315 of the Act, is given discretion to require them when the technology is available. The same is true for underground lighting and canopies and cabs. In the case of ignition suppression devices (the reference is section 317(q), not section 317 (g)), we fail to see why it is the Bureau's responsibility to convert its expriments into a "commercially feasible system." Why not make this knowledge public and let American business convert it competitively into an effective commercial system?

In regard to automatic brakes, the Act only requires them "where space permits." The Department, in its letter of July 17, 1969, to the Senate Committee on Labor and Public Welfare (Sen. Hearings-Part 5 Appendix, p. 1589, 1594) said that the provision "should be deleted at this time because in many instances it is not physically possible in the limited space underground in some mines to install and operate such automatic brakes." (Italic supplied.) Based on this comment, the Congress added "where space permits", the Department did not say, as it is now contended, that they were unavailable in all mines or that they were unavailable in all mines or that they were "nonexistent". "Where space does not permit," other devices may be used to achieve the same objective. What has the Department done to insist on such other devices?

X. Mine Closures by Operators

We are deeply concerned about the increasing number of coal mine operators in this country who are closing their mines.

A. Some are closing because of the uncertainty surrounding the Department's administration of the law. The Interior Department has contributed to this situation by its long delay in issuing regulations and republishing old ones and by eliminating any opportunity for the operators and the miners to express their views on them before they were finalized. Only a short while ago, Assistant Secretary Dole wrote, in connection with regulations for metal mines, that by publishing proposed regulations "the Bureau is following a long-established policy to afford the public an opportunity to participate in the rule-making process." He noted that "the benefits to be reaped from analysis and consideration of comments received may save considerable legal involvement later." He did not follow his own advice for coal mines.

Further, the Department is applying the statute to each mine apparently has failed to recognize that some violations, such as the failure to have a bulletin board, are not as serious as others. It has treated them equally in its fee schedule and thus caused operators to turn to closing their mines rather than pay the same penalty for all violations, regardless of their gravity.

B. Some are closing with the objective of creating a coal shortage in lieu of meeting the requirements of the Act. Many of them predicted early last year. when the legislation was being considered by Congress, that it would close many mines. Now they are apparently attempting to make their predictions come true without any sincere, good faith effort to comply with the new law.

They are using these tactics to embarrass the Congress for passing a strong health and safety law designed to protect coal miners. They are attempting to demonstrate that the Act will close mines, cause coal shortages, and eventually cause blackouts. They have not, however, even made a good faith effort to comply with the Act. Many are marginal operators whose profits are dependent on not providing safe and healthful working conditions. In some cases, one need not even go underground to find hazardous conditions. An inspector need only look at the unsafe conditions on the surface to realize that many of these operators are not safety conscious, but rather are profit and production conscious only. C. In our opinion, both of these reasons are an attempt to create a crisis in the industry to force changes in the law. We are certain that Congress will not stand for such a patent attempt to weaken the law.

Please provide us (a) with a list of the mines closed in each State by the operators since April 1. 1970; (b) the number of persons working in each; (c) the reason for closure, if known; and (d) the estimate of tons lost per day from such closures. If a mine was reopened since then, was it inspected as required by section 303(x) of the Act? If not, why not?

Also, we would appreciate your providing us (a) with a list of the mines inspected during the first three weeks of this month; (b) the number of working sections in each; (c) the working sections inspected; (d) the violations per working section; and (e) the fines assessed or paid per violation.