We can in fact cite situations where the requirements of the law tend toward increasing safety hazards, and relief is now being sought from these impractical requirements under section 301 (c) of the act. I might give you an example of this, Mr. Chairman.

The act requires that the quantity of air reaching the working face at all times must be 3,000 cubic feet a minute. And this requires that line curtains be put up to bring the air up to the face. In the actual working conditions of the mine where equipment is passing through, continually passing through these curtains, it has resulted in a number of accidents. We have had reports from quite a few of the members of the association that the number of accidents has greatly increased because the Bureau inspectors insist that these curtains be kept up all of the time.

Now, these are the kinds of problems that we have attempted to point out to the Bureau in the so-called secret meetings which were not at all secret, as I pointed out, but these are the kinds of problems we attempted to point out to the Bureau with the hope that they would somehow find a proper basis for dealing with the problem. We honestly feel that this requirement for continuous air at the working face is unreasonable particularly where the face might not be worked at that moment. In other words, you have a mine section with five working faces and all five of them have to be kept ventilated with 3,000 cubic feet of air although the amount of activity at any one of them may be slight or there may be no activity at a particular time. But notwithstanding that, you have to keep the curtains up. This, we say, increases safety hazards rather than decreases them.

In our opinion the major enforcement problems encountered under this new act are attributable to the fact that insufficient time was allowed by Congress for the industry to meet the new standards and we believe the effective date deadlines were much too short to permit the average small mine to introduce the necessary methods and equipment to get in compliance.

We are almost certain that experience will show that the effective dates for the new respirable dust standards are not realistic and will have to be extended. We are almost certain that the manufacturers of electric face equipment will not be able to meet the demands of the industry for such equipment within the time limits specified in the act. Another example is the respirable dust sampler. Mine operators are required under the new regulations to take samples of respirable dust at the working face and to submit them to the Bureau for testing and weighing. The samplers are not available now because the total initial output of the manufacturer of the sampling of such equipment for the first 6 months of this year was taken up entirely by the Bureau of Mines. They placed orders with the manufacturers that consumed their entire output.

Our members have had orders in for months with the manufacturers and have not been able to get the equipment and we don't know when we will be able to get the equipment, so obviously we can't comply with either the regulations or with the act itself.

We wish to emphatically deny the assertions made by some that the coal operators are not interested in safety and that they are willing to sacrifice safety for economic gain. The small independent coal mine operator is vitally interested in safety in his mine and in a great many cases he is a coal miner himself. In most cases he is a man who started

out as a coal miner and worked himself up to the point where he got a lease on some property and bought some equipment and started mining. In a great many of these cases he works in the mine himself with his men and some of these men are his relatives. They might be his sons or brothers, and he goes inside the mine and works with them. If an accident occurs in his mine, it endangers his life as well as the lives of his friends and neighbors who work with him underground. Such an accident can also cause extensive economic loss in terms of destroyed equipment and loss of production. It is, therefore, ridiculous to say that he is not interested in mine safety. The people that make these assertions just don't know what they are talking about.

Now in regard to the secret meetings, that have been referred to here, I know of no secret meetings that were held with the Bureau of Mines by any mine operators. I can't speak for all of the mine operators, but I can speak for myself. I know of no secret meetings that the independent operators had with the Bureau or any representative of the Bureau. Whatever meetings we had were attended by, not only the United Mine Workers' representatives, but by congressional staff representatives, and I believe that one of Mr. Nader's assistants was also present and was invited, I understand, to be there.

The purpose of these meetings was to simply point out to the Bureau of Mines these practical problems that have come up since the act went into effect on March 30.

In regard to the lawsuit in Abingdon, Va., the assertion has been made that the Government encouraged that lawsuit and did not oppose the lawsuit. Well, this is an absolute misrepresentation. I can state unequivocally there was no prior discussion or any meetings, or consideration of discussions with the Government representatives before this lawsuit was filed. When the lawsuit was filed, the Government representatives appeared and immediately made motions to dismiss and sought to get the case dismissed.

So, these statements that are being made are not accurate.

Senator WILLIAMS. There are two areas of concern to you and they certainly suggest concern to us, too.

Going back to the regulations that were effective March 28 or was it March 20?

Mr. KILCULLEN. March 28 and they went into effect immediately. Senator WILLIAMS. March 28. You had 2 days of notice of the effectiveness of these regulations, am I accurate on that?

Mr. KILCULLEN. We had 2 days.

Senator WILLIAMS. Two days notice?

Mr. KILCULLEN. Well, they came out on Saturday and they were enforced on Monday. Yes; we had, well, if you got up Saturday morning and read the Federal Register you would have had 2 days notice. Senator WILLIAMS. What were the procedures prior to the notice the regulations? How did the Department handle the development of these regulations?

Mr. KILCULLEN. They had in January, I believe it was, a series of meetings in the Interior Department auditorium at which industry representatives were invited to be present, and representatives of the Bureau of Mines discussed the proposed interpretations as they referred to them. They were proposing to issue interpretations of the new standards. But there was no opportunity, certainly no formal opportunity, for industry or any representative of industry, to present their views at those meetings.

Now, subsequently, I think in February, there were, I don't know the dates, but there were two or three meetings at the Bureau which again were attended by industry representatives and again the Bureau of Mines' representatives said they were there simply to point out what they intended to issue in the way of interpretations.

Mr. O'Leary was there and he said: "We are not here to receive your views or comments, we are here to tell you what we are proposing to do. We are not here to negotiate, but we are here to tell you what we propose to do."

Now I understand, Mr. Chairman, that the regulations that were subsequently adopted were in final form and ready for publication at the time Mr. O'Leary left the Bureau, but in effect the procedure and the substance of these regulations was under his direction.

Senator WILLIAMS. But you did not receive the regulations and you were not given an opportunity to come in and make your observations on those regulations prior to the effective date?

Mr. KILCULLEN. No, sir.

Senator WILLIAMS. I understand that under the law, that there is administrative discretion to do it that way and it seemed to me that in this particular area of a new law, and, as we know, a demanding law, that perhaps it would have been wiser administrative practice to go through the more formal and complete procedures adopting these regulations rather than publishing on Saturday and having them effective on Monday. That is my observation.

In another area now, the penalty section, it was our intent, as I understand the congressional intent, to have the penalty reflect the nature of the violation in many specified ways. Indeed, the violation, the degree of violation, the size of the operator, and all of these factors were to go into an equity determination of the penalty, but I gather that has not been done either, it has been across the board, no matter what these particular circumstances that surround the individual violation. Is that your impression of the way it was administered?

Mr. KILCULLEN. That is correct, Senator. Section 609 of the act does spell out the factors that the Secretary of the Interior should take into account in assessing the penalties-the size of the mine, the past record, negligence, and so forth.

Now there are practical considerations, though, that I think have to be taken into account here. The question is: is it practical to have a full scale administrative hearing with respect to several thousand, probably 50,000 possible citations a year, many of which involve very minor infractions of the rules.

For example, some of our members have been cited for failure to have a sign on the mine office which says "office" or failure to have a glass enclosed bulletin board. Now, these are requirements of the law but they don't really affect safety in a practical sense. They are not really safety requirements.

Now, to have a full-scale hearing before an officer appointed by the Secretary of the Interior in each one of these instances, I think, would be virtually impossible. It would mean that you would need a staff of 500 to 1,000 trial examiners probably to carry out this function. I do think there is much to be said for having a shortened form of procedure, such as a sort of police court procedure where you can be cited

for a traffic violation and you can forfeit collateral instead of going into court or taking the time to go to court.

And I believe this is what the Bureau is trying to bring about in adopting a penalty schedule. We were upset by this penalty schedule because it meant that some of the small mines would find an inspector would come in and run up a string of 15 or 20 violations and many of them, as I say, which they couldn't comply with anyway, such as the automatic brakes, and the inspector would say, "Each one of these is subject to a $25 penalty." So this small operator might be hit with $200 or $250 worth of penalties.

Then the next time the inspector comes in if he finds the same things again, the penalty doubles, so it would become a tremendous burden on the small operators to impose these kinds of penalties.

So we feel that although the idea is a good one, the idea of having a short form of penalty procedure, we think that it has to be worked out someway so that it cannot become ridiculous in terms of the amount of money that is being imposed, or amount of penalties imposed.

Senator WILLIAMS. We don't want to get away from, of course, the fundamental purpose and proposition that guides the administration of the law, that the health and safety of the miner himself is paramount. I can see a great deal of annoyance about some of the administrative procedures that have nothing to do with safety and health of the miner and it seems to me that the law allows a more streamlined and realistic administration, in terms of penalties. The penalty should be adjusted to the violation. The law permits that, in fact it states that.

Mr. KILCULLEN. The law does make a penalty mandatory, though, Senator.

Senator WILLIAMS. I realize that.

Mr. KILCULLEN. There is no discretion in the Secretary of Interior and in this respect this law is different than, for example, the Metal and Non-Metallic Mines Act which was adopted by Congress not too long ago.

There, there are no mandatory penalties, there are provisions for penalties, but they are not imposed mandatorily. We feel this is unduly harsh because in many of these situations, as I say, they are beyond the control of the operator.

The main point, though, I would like to make again, if I may, is that I feel that the Congress didn't allow adequate time really for the industry to get adjusted to these new requirements, to get the new equipment and to do the things that were necessary.

I know that Congress was acting under a sense of urgency and it felt that something had to be done quickly and I think or I believe everything that they did was done in good faith. But as a practical matter, I think they should have allowed us more time. Our people are not trying to violate the law. We don't want to violate the law. But it is a question of being able to do the things that are needed to get into compliance.

Senator WILLIAMS. One observation on the penalty. Of course we know it is mandatory, a penalty is mandatory, but the amount is not specified and that is where there is administrative flexibility and I hope we would have some wisdom there.

We will say, too, we certainly here as legislators in working up the law, we are mindful of the special situations of small coal mine operators, that the small coal mine operator faces and their capabilities of meeting all of the requirements. There are many special provisions in the law that are there for the special situations of the small operators. Now yours is an independent coal operator's association? Mr. KILCULLEN. Yes.

Senator WILLIAMS. And are your members considered small operators? Can you give us some idea of the size of the operations of these members of your association?

Mr. KILCULLEN. I think the average production would be somewhere about 150 tons, between 150 and 200 tons a day. I believe that any mine that produces less than 1,000 tons a day would be regarded as a small mine. I would say that practically all of the members of the association are in the category of 500 tons or less. There may be a few that are bigger, but not many.

Again, these are or many of them are just five- and six-man mines. They are in remote areas, they are up in the hills and there are small seams of coal and small leases that would not be economic for a larger operator to attempt to operate, there just is not enough coal in there and the larger operator would just, well, it would not be worth his while.

So this little fellow that has been a miner gets or accumulates a little capital and gets his brother-in-law and a couple of other fellows and they go in and open up a mine and they do observe safety, these are experienced men they do what they need to do to maintain safety. These mines are not just dog holes, as some people call them, but they are technically well prepared and well equipped mines. They have electrical equipment, electrical mining equipment. They have roof support methods and put in roof bolts and other supports. But, of course, the largest number of accidents are due to roof falls and this is the area that I think this act didn't really reach as fully as it might.

I think that Congress got off on a tangent in some respects on the question of gassy versus nongassy mines and overlooked some features that might be more fruitful in terms of safety.

We, of course, as you know, Senator, presented testimony and statistics on the number of accidents due to gas explosions in these small mines and they are so few and far between that, as Mr. O'Leary testified in 1966, the question is academic. Of course, in 1969 he changed his position on that, but he did urge Congress in 1966 not to classify these mines as gassy because he said the problem of gas ignition is academic in such mines.

We developed statistics and I think we can show that the danger to a miner from a gas explosion in these drift mines, these nongassy drift mines, is about-well, if you compare it with the danger of his driving a car on the highway, it is 16 times, or he is taking 16 times more risk driving his car on the public highway than he is in working in one of these mines. That is with respect to danger of gas ignition and gas explosions, so I say we think Congress got off the beam and concentrated so much attention on this question of "gassy" and having gas problems that they imposed regulations and restrictions here that are unnecessary and not really related to safety in these mines.