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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 sa fety 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.

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The substance of the complaint was that the new standards were Y. 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 insnection 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.

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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 attempt ed 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. Nine 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. Thev 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 economie 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 en forced 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. KılcULLEN. 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 faetors 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

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