XI. Temporary Relief Section 301.15 of the regulations (35 F.R. 5256) provides a procedure for filing applications for temporary relief, except "in the case of a notice issued under section 104 (h) or section 104 (i) of the Act." The reference to section 104 (h) is in error. Secton 105(d) of the Act provides that the exception applies to notices "issued under section 104(b) or (i)," Please advise us when this section is corrected, and when it is amended to show that such relief is not available in cases of "an order issued under section 104(a)" of the Act. XII. Notices Section 301.10 provides that an operator or miner or the miner's representative may file an application "for review of orders and notices." We believe that this provision needs clarification to assure that review of notices is limited only to the reasonableness of the time prescribed therein as is explained in the Senate's section-by-section analysis of the Conference Report (Cong. Rec., December 18, 1969, p. S. 7169) as follows: "Subsections (a), (b), and (c) establish a procedure for reviewing administratively withdrawal orders issued by an inspector, modifications or terminations of such orders by an inspector and the reasonableness of the time limits in notices, upon request made by an operator or representative of the miners. Upon making the request, the Secretary must undertake a special investigation to ascertain the facts which must include an opportunity for a public hearing pursuant to 5 U.S.C. 554." (Underlining supplied.) On December 18, 1969, when the Congress adopted the conference report, both the Department and the operators should have been certain of its provisions, but for the threat of a "veto" by the Administration which threat was not quashed until December 30, 1969, when the President signed it. Congress provided an additional delay period of 90 days before the safety standards became effective to enable the Department and the operators to adjust to the new law. This delay was only 30 days less than that recommended by the Department. Based on the Department's performance to date, twice as much time would apparently not have been enough. The Department's actions, or rather its inaction, has given the operators ammunition to wage war against the new law. It is time that the industry and the Department recognize the fact that the Congress and the public will not tolerate unsafe and unhealthful working conditions in the coal mines. Both expect, so long as the program remains in Interior, that the Department will act reasonably and responsibly to administer the law and to obtain quickly the personnel to do so. To date, Congress, the public, and, most important, the miners and many operators have been disappointed. We hope to hear from you on these vital issues by May 4, 1970. Sincerely, JOHN N. DENT, Chairman. MINES BUREAU HEALTH AND SAFETY ACTIVITIES REORGANIZED DEPARTMENT OF THE INTERIOR NEWS RELEASE OFFICE OF THE SECRETARY (For Release to PM's January 15, 1969) A reorganization of mineral industry health and safety functions within the Bureau of Mines was announced today by Secretary of the Interior Stewart L. Udall. The changed setup was described by Secretary Udall as "one result of our intensive review of the Bureau's health and safety activities," which he said had been underway for several months. Primary aims, he said, are to modernize and more effectively coordinate traditional Bureau programs in mine health and safety and related fields, and to prepare it for the assumption of even broader responsibilities. BITUMINOUS COAL OPERATORS' ASSOCIATION The Honorable Harrison A. Williams, Jr. August 5, 1970 There is also great confusion among the mine operators as to the requirements for compliance with particular provisions of the law. This is due in part to the uncertain status of the various regulations and to interpretations issued by the Department of the Interior. There is a great need for basic research as prescribed in the Act to develop many important answers to the difficult questions that confront everyone involved in the administration of the Act. Such problems as the use of bleeder systems to eliminate the methane or to provide ventilation; study of explosions and their control; speed of air passage and volume of air needed present never ending crises in the effort to improve the health and safety of the miners. There are also certain provisions in the law which, in the opinion of our safety experts who have carefully studied these provisions, need to be modified or revised in the interest of improved health and safety. Congress foresaw these possibilities when it delegated the Secretary of the Interior the authority under Section 101 of the Act and under Section 301 (c) of the Act to promulgate, revise, and modify standards in the interest of health and safety. We have urged the Secretary and we have filed these revisions and modifications. These petitions seem to be bogged down in red tape and technical legal procedures. There are in addition certain statutory requirements which cannot be effectively carried out because of the lack of available equipment, technology, and personnel. This has had the effect of placing mine operators in the unfortunate position of being cited for violations which they have no available means of correcting. It is not my intention in this letter to be critical either of the Congress or of the administration. We would like, however, to emphasize what we believe is the necessity for a cooperative effort on all sides to achieve a maximum program for the benefit of the coal miner. This will require a great deal of understanding and effort on the part of all the interests concerned. We would appreciate the opportunity to review the transscript of your hearings this week as soon as it is available and to make appropriate comment in writing which we would hope could be made a part of your official record. Senator WILLIAMS. Mr. Kilcullen, we appreciate your being here today and you may proceed as you desire. Do we have copies of your statement? STATEMENT OF JOHN L. KILCULLEN, COUNSEL, NATIONAL INDEPENDENT COAL OPERATORS ASSOCIATION Mr. KILCULLEN. Senator, I didn't get notice of this until yesterday afternoon or actually yesterday morning so I didn't have time to have copies made. Senator WILLIAMS. You had better bring the microphone over to you closer. Very well, proceed. Mr. KILCULLEN. Mr. Chairman and members of the committee. The National Independent Coal Operators Association (NICOA) is an association representing primarily small- and medium-size coal operators located primarily in the Appalachian coal producing regions. It is estimated that the independent segment of the industry produces about 150 million tons of coal a year or approximately one-fourth of the national output of bituminous coal. I will try to outline for the committee the problems these small mines have had in attempting to meet the new health and safety standards which have gone into effect for coal mines under the Coal Mine Health and Safety Act of 1969, and to describe the experience our members have had in connection with enforcement activities and procedures of the Bureau of Mines. The preponderant number of these mines are drift mines, that is mines located in the side of a hill or mountain above the water table, and having a horizontal entry into the mountain. Because the coal seams are above the water table, most-if not all-of the methane gas which might otherwise be present in these seams has long since escaped through cracks and fissures in the earth's surface. As a result, these mines have traditionally been classified as nongassy. During the hearings on the coal mine health and safety legislation last year, representatives of NICOA appeared and pointed out to the congressional committee that there are substantial differences between these small drift mines and the larger deep shaft mines which are hundreds of feet below the surface of the earth and urged that these differences be taken into account in formulating safety standards, ventilation requirements and electrical equipment requirements. The bill as finally adopted, however, imposed across-the-board standards on all underground mines and disregarded the differences we had attempted to point out. As anticipated, this has created serious problems for the small mines in their efforts to come into compliance with the new standards. In a great many instances the equipment necessary for strict compliance is not available for purchase, and qualified engineers and other personnel needed to perform work on underground high voltage distribution systems to conduct respirable dust surveys and to perform other functions required under the new act are not available. After the act was enacted by Congress, NICOA immediately took steps to conduct seminars to acquaint its members with the provisions of the law and also distributed a substantial quantity of educational material. However, because of limited time and limited facilities, it was not possible to reach all of the small mine operators with the educational material during the 3-month period from the date of enactment and the effective date of the safety standards which was March 30. As a result, as of March 30, 1970, there were large numbers of small coal operators who had only a fragmentary knowledge as to what was expected of them under the new law. On March 28, 1970, the Department of Interior published in the Federal Register detailed safety regulations covering 38 pages of fine print which went into effect immediately upon their publication and on March 30, the Bureau of Mines inspectors began conducting inspections, and issuing violation and penalty notices under these new regulations. Many small operators found themselves being cited for violations over which they had no control such as failure to have automatic coupling devices on shuttle cars and automatic brakes on coal hauling equipment. The fact that this equipment was not available for purchase, and that no manufacturer actually manufactured such equipment was not accepted as an excuse by the Bureau of Mines inspectors in issuing penalty notices. In this respect the inspectors were following instructions from Washington in carrying out the strict requirements of the new regulations and of the interim mandatory standards of the act. The act itself requires these devices, and further, requires imposition of a penalty for failure to have them regardless of any question as to the operator's fault. The act did not by its terms give the Bureau or its inspectors any latitude or discretion in this respect. The manufacturers of some of this equipment, such as trailing cables, were totally unable to meet the demand or fill the orders placed by mine operators during the 3 months period between the date of enactment and the effective date of the law. As a result, when the mine inspectors showed up and found them using trailing cables which did not meet the new standards, they issued citations and penalty notices. Even today these trailing cables are in very short supply and mine operators who have had them on order for several months cannot get definite delivery dates. When it became apparent to the small mine operators that they might be subjected to substantial monetary penalties for violations which they could not control, a feeling of alarm spread throughout the industry and a large number of small mines voluntarily ceased operations rather than continue to incur such penalties. I might say at this point that when we brought these matters to the attention of the Bureau of Mines officials here in Washington, they pointed out quite logically that they had no choice other than to enforce the interim safety standards enacted by Congress even though the means for meeting such standards might not be within the reach of the industry. Faced with the grim alternative of closing their mines or continuing to operate and incur substantial monetary penalties, a group of small coal operators decided to appeal to the courts for relief, and a suit was filed against the Secretary of the Interior in the U.S. district court in Abingdon, Va., on April 23, 1970. The substance of the complaint was that the new standards were impossible of compliance in respect to those matters where equipment and qualified personnel were not available, and that the procedures followed by the Secretary of Interior in adopting the March 28, 1970, regulations did not comply with the procedural notice requirements of section 101 of the act. The complaint also raised constitutional questions regarding the reasonableness of the action of Congress in imposing on nogassy mines the same requirement for permissible equipment imposed on gassy mines. After a hearing before the court, in which the Government attorneys vigorously opposed issuance of a restraining order, the court issued such an order to restrain the Secretary of the Interior and the Bureau of Mines from enforcing the March 28, 1970, regulations insofar as they included requirements which went beyond the interim standards adopted by the Congress and restraining the imposition of penalties for noncompliance where the operator is unable, because of nonavailability of equipment or personnel, to meet the new standards. This restraining order has not, as far as we can determine, inhibited the Bureau of Mines in carrying out its inspection and enforcement procedures. The Bureau has increased the number and frequency of its inspections of the small mines and when the inspectors find a violation, they cite the operator and give him notice that such violations subject him to a penalty under the new law. If, however, the operator can show that equipment or qualified personnel are not available to him, the inspectors are instructed to refrain from issuing a penalty notice, they do issue a violation notice, but they do not accompany it with a penalty notice. The practical effect, then, of the restraining order is that it prevents the Bureau from imposing penalties without fault, and requiring the mine operators to comply with provisions of the March 28 regulations which go beyond the statutory standards. The restraining order in no wise limits the authority of the Bureau and its inspection staff to issue closure orders for imminent danger or to proceed with assessment of monetary penalties for violations other than those involving nonavailability of equipment and personnel. We are not here, Mr. Chairman, to defend the Bureau of Mines, but I must, in honesty, point out that our members, the small mine operators, do not feel that the Bureau of Mines has been lax in its en- ! forcement of the interim standards. On the contrary, they feel that! the Bureau has been extremely zealous, and has greatly increased the stringency of its inspection methods and procedures. We know of no instances where a Bureau of Mines inspector has condoned or deliberately overlooked violations of the new standards. It is simply not true, as has been asserted here, that the Bureau of Mines has some sort of a "sweetheart" arrangement with mine operators whereby they close their eyes to conditions which are hazardous to safety and health of miners. Our members are being held to the strictest enforcement of the law and our complaint is not so much with this as as it is with respect to the fact that some features of the law are unreasonable and impractical, and contribute almost nothing to effective health and safety. |