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Justice, and Department of the Interior, and a meeting did take place the following day.
There have been meetings ever since then, and there have been hearings held by the committee. In doing so, the committee is not impugning the integrity of the Attorney General of the United States.
Mr. Carey. Being aware of that as a fact, we would have been very happy to have had you invite us to the hearing.
Mr. FEDER. I am sure you would have been.
The question in my mind, Mr. Carey, is a very simple thing. This statute enacted into law was signed by the President on December 30, 1969. The hearing on the merits in the case in Virginia is not scheduled until some time in November, almost 1 full year will have run and this statute will be under an injunction which you agree should be treated as a nationwide injunction. Mr. CAREY. I did not say I agree. I said I am inclined to agree. Don't
I put words in my mouth. I said I am inclined to agree. Don't say I agree. I didn't agree.
. Mr. FEDER. In that one year during which you are inclined to agree we should have the Department of the Interior treating this as a nationwide injunction, over 200 miners will be killed, and the question is even if it fails why didn't the United Mine Workers seek to upset that injunction in the court in Virginia with all of the legal money at its disposal ?
Mr. CAREY. For the simple reason that we intend to move at the proper time and we are going to move at the proper time.
Why do you assume the United Mine Workers would have more prestige with the Department of Justice or the Secretary of the Interior than the U.S. Congress? It seems to me the more prestigious group would be the Senate and House that passed this bill. Have they set up a meeting with the Secretary of the Interior, the Secretary of Health, Education, and Welfare and then talked to the Department of Justice and said, “We passed the statute, this thing is being flaunted, it is being defeated, it is being frustrated”? Why does the initiation not come from within your committee?
Mr. FEDER. Are you suggesting the mineworkers interest can only be protected if the Senate and House of Representatives represent the mineworkers?
Mr. CAREY. We would be in sad shape if we relied on that exclusively. Absolutely not.
Mr. FEDER. The committee was asked this morning to file a lawsuit against the Department of the Interior. Obviously, one of the factors that will be taken into consideration in accepting this recommendation or even considering the recommendation is whether the United Mine Workers intend to file a suit to enforce this law or intend to intervene to enforce this law. Do you now have any intention of intervening in the lawsuit in Virginia or filing any lawsuit on your own to enforce the statute ?
Mr. CAREY. It will be my legal opinion that any lawsuit filed at this particular time would be dismissed on the basis of the case now being tried or being litigated in Virginia, on the basis that the constitutionality of the statute is going to be challenged and a three-man court is
going to hear that. I would say that any Federal District Court judge would say, "That matter is now in litigation in Abingdon, Va., we don't have jurisdiction because of the fact it is being tried there."
Mr. MITTELMAN. Turning to another matter, Mr. Boyle, I believe there was some testimony this morning about the union personnel concerned with safety. Could you briefly sketch out the structure, the personnel of the union on international district and local basis who are concerned with safety and how the officers are set up to handle this program?
Mr. Carey. Before we conclude then may I interrupt for just a moment, I am reluctant to do this but this morning Mr. Nader in testifying made reference to the various appeals which are being taken by the coal companies under 301.
It was indicated that we have done nothing about it. In response to that I brought Mr. Charles Widman with me who has been specifically assigned to handle all matters involving mine health and safety litigation. I think he is in a position at this time to give you a résumé of the amount of work which has gone into our legal defense of the positions before the mine safety board.
I don't know how many cases—how many cases are there.
Mr. CAREY. Twelve cases at the moment and probably we can anticipate hundred and hundreds more.
Will you explain the situation where the coal companies are trying to get a general proposition of law involving all mines, not only applying to specific mines of
Senator RANDOLPH. Mr. Carey, is that by the operators, a procedure in which they think that by drawing attention to certain cases that this would be let us say a structure of a case so that it might apply over a wide area?
Mr. Carey. That is right. We take a position they can only file an appeal on one mine, the specific mine involved. They have attempted to make this broad enough to cover all kinds of mines owned by that particular company.
Mr. Widman has filed motions to strike or to dismiss in the alternative. I think he is in a better position to elaborate.
Mr. WIDMAN. I would suggest this to you, Senator. The coal companies and one Armco was mentioned this morning, Armco is the bellcow. There are 47 companies that have filed petitions under various sections of the act, five coal operators associations if you please, and if that is not enough, BCOA, the Bituminous Coal Operators Association have sought to intervene.
What they are doing is taking their best cases, the way we see it now, to change the law under 301(c) which we are going to vigorously oppose, and by changing the law they are relying on section 301(c) and we will suggest to this committee that we think they are completely out of order in doing so because section 301(c) permits only a modification of a health or safety standard and not an alteration. They are seeking to amend. What is more they are trying to combine these things for suit.
We say it is the Senate's intent and I think we are at the right place to get the Senate's intent that these considerations are on a mine-tomine basis and only one company at each time must review these matters, the hearing examiner will consider mine to mine.
We have filed motions to sever, motions to strike, motions to dismiss these other companies out of the hearings and we want to get down to the specifics and we demand strict proof of what the conditions of these coal mines are.
Senator RANDOLPH. Mr. Chairman, could counsel quote the language? I think we said mine by mine. Didn't we use that language!
Mr. WIDMAN. Yes, 301(c) that is correct, Senator, on page 24 if you have the act. That is the position we are taking. I was somewhat taken aback when this was suggested that we have not filed any opposition to intervene in these 301 cases. If we have missed one it is because we have not received notice and this little fat fellow is over at the Interior Department an awful lot asking them and they are getting a little tired seeing me over there I know.
But we are going to know about them and we are going to intervene, and we have, even each and every one when we know about it.
Those are now under 301 if you please. There are many, many petitions under the 105 and 104 on notice of violations on appeal.
What position we are going to take on those can only come on a case to case basis.
We are a little disturbed about the fines, that these people are not being fined. Section 101(a) requires fines. I don't know why the bureau has not levied these fines.
Senator WILLIAMS. Are these waiver cases mostly smaller mines !
Mr. WIDMAN. No, sir; starting next week they are on Peabody, Powatan and large mines. They are not just small mines. Armco has a couple. Every coal mine in the United States, I think. There must be 12,000, 2,000 which have gotten appeals. These are matters that we are working on every day.
To suggest we are not is just being somewhat careless with the truth.
Mr. CAREY. The Secretary of Interior will reflect the opposition to what we have filed in these various matters.
Mr. MITTLEMAN. I am sorry, but I didn't get your name.
Mr. MITTLEMAN. Could you tell me the kind of staff you have to work with in terms of technical people which I assume you need to present evidence ?
Mr. WIDMAN. I will suggest this. I have one of the finest experts on the face of the earth in Lou Evans, the safety director, his assistant, his staff in the office, in the field. We have a man in each district. I think Mr. Evans knows that. These things are investigated as soon as they come into the office, they are investigated by Mr. Evans' staff
. We find out what the true configurations are at that mine. We confer with the-I can't in every case-the safety division confers with the safety committee on the condition of those coal mines.
And I will pledge to this committee now we will be prepared when we step in that hearing room.
Senator RANDOLPH. Mr. Chairman, I do want the record to reflect my feeling that I have had increasingly during the progress of the hearings today, that the passage of the act, then later the implementation of the provisions of the act, the impact of the legislative intent of the Congress, places a very heavy burden upon the Department of Interior and the Bureau of Mines and all those associated, the United Mine Workers of America, in the safety provision and other agencies of the Government in connection with the health conditions.
If this act, Mr. Chairman, is to be effective there will have to be a rethinking perhaps in the Department of Interior, and I am not attempting to blanket the criticism of the Department, but it seems to me it is very evident, increasingly so, that we need not only the personnel, gentlemen, but we must have a commitment within the Federal Government to do this job.
Nothing less than that is going to suffice.
Senator WILLIAMS. Í certainly do. I think perhaps our continuing focus of attention here might speed that commitment that you have expressed a need for.
Senator RANDOLPH. I say this advisedly from my own thinking: I don't want to be misunderstood. Perhaps we need less pointing of the finger in criticism at this person or that person or at this segment of the industry or this segment of the miner participation.
Somehow or other we have, not reluctantly, but eagerly, to try to bring all the forces together, even though mistakes and errors have been committed.
I recognize these. I think the Congress itself has shared perhaps in the failure to have moved quickly. I sense that timidity is not desirable here as we move forward. There must be this broader attempt, this stronger effort. I just want the record to reflect my thinking at this time.
I think I feel this more than I have in the past. I think it must be shared by the Congress, shared by the administration, shared by all of you who sit here as witnesses, that we move together to try to help one another in a partnership, as it were, to do this job.
Thank you, Mr. Chairman.
We will conclude today's hearing on that note and we will return tomorrow morning at 9:30.
(Whereupon, at 4:05 p.m. the subcommittee recessed, to reconvene at 9:30 a.m., Friday, August 7, 1970.)