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Thus, the Bureau continues to have no one in its top staff on a permanent basis of Mr. Perry's or Mr. O'Leary's caliber and experience. Further, 31 of the Bu. reau's most important posts are not permanently filled, incluuding the four heads of the health and safety divisions. (See Bulletin No. 70–73.) II. Reorganization of the Bureau of Mines

The Bureau was reorganized in January, 1969, for the primary purpose of upgrading the health function of the Bureau. The overwhelming evidence that occupationally caused health problems in the coal and metals industry which are at least as serious, and possibly even more serious, than safety problems helped to bring about this change. (See attached Press Release.)

Yet, on April 1, 1970, at a time when all of the Bureau's energies and attention should have been directed at implementing the new law, a new reorganization was devised. This time, the Department has reversed its earlier decision of January, 1969, and moved once again to submerge the Bureau's health function from its once prominent, but shortlived, position to a division level subordinate to an assistant director for both health and safety. Further, it no longer treats coal mine health and metal mine health as one unit with its common problems Instead, it divides the function into two separate entities subordinate to a health and safety assistant director for coal mines and one for metal mines, Mr. Westfield and Mr. Jarrett, who have no health background.

Safefty too is downgraded from a position headed by an assistant director solely for coal mine safety and one for metal mine safety to two divisions headed by a division chief who is subject to an assistant director for both health and safety.

In addition, the reorganization appears to divorce completely the Bureau's health and safety functions and the Bureau's research functions. This, despite the fact that Congress, in the new law greatly expanded the Bureau's health and safety research function and, in sections 301 (b) and 501 (a), set forth specific priorities in this area. We fail to see how the health and safety program can be effectively carried out unless there is, as the enclosed press release emphasizes. a close relationship between those who investigate and enforce and those who research and test. A Bureau divided under two deputy directors, in our opinion, will not foster such a relationship.

Further, we believe that the reorganization will encourage an even closer, confidential relationship with industry in the research area than that now cherished by it. Such a relationship could 'well be detrimental to the miner concerned with health and safety and to the public concerned that the mineral industry meet its responsibilities to prevent the degradation of the environment In this reorganization, what efforts have been made by your Department to require greater public participation and disclosure in the Bureau's research programs as required by section 501(c) of the 'new' Act and section 102 of the National Environmental Policy Act?'

We strongly recommend that the new reorganization' be rescinded for these

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First, it is ill-conceived and designed to foster an unhealthy confidential relationship between parts of the Bureau and industry, while dismantling the Office of Mineral Industry Health which was seeking ways to curb and eliminate occupationally caused diseases, such as pneumoconiosis, in the case of coal miners, and lung cancer, in the case of uranium miners. As a matter of fact, Mr. Doyle was an outspoken advocate of tough health standards for uranium miners along the lines adopted by former Secretary of Labor Wirtz. The uranium industry, including Mr. J. Rigg of Assistant Secretary Dole's staff, has a long-history of opposing the Wirtz standard.

Second, the President's Advisory Council on Executive Reorganization is now in the process of preparing a report on the organization of the executive branch, including the Interior Department and the Bureau of Mines. In view of this, the Bureau's new reorganization should be shelved, at least, until that report is available and its recommendations fully evaluated.

We would appreciate your comments on this recommendation. III. Regulations publication

Thank you for providing copies of the proposed Coal Mine Health and Safety regulations recommended to you by Mr. O'Leary on February 27 and 28, 1970. We will compare them with the published regulations and comment thereon. where appropriate, at a later time.

In addition to the regulation which was referred to in the February 20, 1970 letter, the Interior Department has now published under the Federal Coal Mine Health and Safety Act of 1970 the following regulations and notices:

(A) Coal Mine Dust Personal Sampler Units—(35 F.R. 4326-4329) Published March 11, 1970;

(B) Mandatory Safety Standards, Underground Coal Mines—(35 F.R. 5221-5258)–Published March 28, 1970;

(C) Notice of Regulations Continued in Effect-(35 F.R. 5335–5345) Published March 31, 1970 ; and

(D) Mandatory Health Standards—Underground Coal Mines— (35 F.R. 5544_5550)-Published April 3, 1970. In the case of the mandatory safety standards, Congress specifically provided in section 301(d) of the Act that “where the provisions of sections 302 to 318, inclusive, of this title (Title III of the Act) provide that certain actions, conditions, or requirements shall be carried out as prescribed by the Secretary, or the Secretary of Health, Education and Welfare, as appropriate, the provisions of section 553 of Title 5 of the United States Code shall apply unless either Secretary otherwise provides." In publishing these final regulations, the Department did not refer to this exception to the rulemaking requirement, but found that it is "impracticable" under section 553 to have proposed rulemaking. We are distressed at this finding.

Congress, in enacting this statute, clearly recognized that the Department probably could not properly issue regulations of the magnitude found in the March 28, 1970, publication and, at the same time, provide the operators, the miners, and the public sufficient time to review and comment on them by April 1, 1971. That is the reason section 101 (j) was added to the Act. That section provides that "interpretations, regulations, and instructions” existing under the 1952 Act which are consistent with the new Act could, upon republication, continue to exist until superseded by more comprehensive regulations. In the letter of March 5, 1970, to you, it was pointed out that the Conferees expressly urged that this republication be made "as soon as possible after enactment.” Despite this congressional admonition to act quickly, the Department did not republish these until March 31, 1970. Many of the mandatory safety standards in Title III could be enforced on April 1, 1970, without the need for additional regulations immediately. In such cases, proposed rulemaking of these comprehensive regulations would have been quite proper. We would appreciate your Department advising us (a) why it was impracticable to publish such extensive regulations on March 28 without proposed rulemaking as required by section 301(d) of the Act; (b) what standards in Title III could not be enforced without implementing regulations on April 1, 1970; and (c) why it took your Department so long to develop regulations that were begun, as your April 2, 1970, press release states, in December, 1969. IV. Scope of safety regulations

The preamble to the March 28 regulations (35 F.R. 5221) states that the regulation :

"includes mandatory safety standards for underground coal mines which are set forth in Title III * *, other mandatory safety standards issued pursuant to that title and section 101(j) of the Act, and interpretations and supplementary regulations."

The publication identifies each statutory standard. It does not, however, identify these other items. Please identify each item in the publication that your Department considers to be “interpretations and supplementary regulations" and each item that it coi siders to be "other mandatory standards." Since neither Title III nor section 101 (j) of the Act authorize the issuance of such standais, we would appreciate (a) your requesting the Department's Solicitor to provide us with a legal opinion concerning the authority for such other standards, and (b) advising us why such other standards were not issued in accordance with the procedures set forth in Title I. V. Fee schedule

Section 301.50 of the regulations (33 F.R. 5257) establishes proceedings for the assessment of civil penalties to be initiated by a hearing examiner or the Appeals Board if an operator or miner fails to pay a fine to the Bureau "within 30 days after receipt of the notice of violation by the miner operator or miner" in accordance with a fee schedule in the regulation.

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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 determining 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 notifcation 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 : 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 mas 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 à more realistic fine where, as the law provides, there are proper proceedings institute before the fine is assessed.

We call upon the Department (1) to rescind this fee schedule in the regulations 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 fet 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 impliedis 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 specificalls 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 fo'lowing 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 sec

tion 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 au-

thorizations 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 a'l 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 substantia'ly 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 inspec tion" 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 insnection 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:

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