Mr. KELLEY. But you can ask for an inspector for a special inspection. Mr. MOODY. It is not provided, sir. Mr. KELLEY. Oh, yes, it is. Mr. MOODY. I beg your pardon, but I will put it this way: We do not find it. Chairman BARDEN. We have chewed on this now for a while, and let us see what it says: If such representative of the Bureau Mr. MOODY. I beg your pardon, Mr. Chairman? If such representative of the Bureau finds that any provision of section 209 is being violated and that the conditions created by such violation do not cause danger that a mine explosion, mine fire, mine inundation, or man-trip or manhoist accident will occur in such mine immediately or before the imminence of such danger can be eliminated, he shall find what would be a reasonable period of time within which such violation should be totally abated. Such findings shall contain the provisions of section 209 which he finds are being violated and a detailed description of the conditions which cause and constitute such violation. (c) (1) The period of time so found by such representative to be a reasonable period of time may be extended by a duly authorized representative of the Bureau from time to time upon the making of a special inspection to ascertain whether or not such violation has been totally abated. The Director shall promptly cause such a special inspection to be made: Now, that is at his own will and pleasure. (A) upon the expiration of such a period of time as originally fixed; And now I presume that means by the inspector. (B) upon expiration of such period of time as extended; and (C) whenever an operator of a mine, prior to the expiration of any such period of time, requests him to cause such a special inspection to be made at such mine. Upon making such a special inspection, such representative of the Bureau shall find whether or not such violation has been totally abated. If he finds that such violation has not been totally abated, he shall find whether or not such period of time as originally fixed, or as so fixed and extended, should be extended. If he finds that such period of time should be extended, he shall find what a reasonable extension would be. If he finds that such violation has not been totally abated, and if such period of time as originally fixed, or as so fixed and extended, has then expired, and if he also finds that such period of time should not be further extended, he shall also find the extent of the area of such mine which is affected by such violation. Thereupon he shall promptly make an order requiring the operator of such mine to cause all persons in such area, excepting persons referred to in paragraph (2) of this subsection, to be withdrawn from, and to be debarred from entering, such area. Such finding and order shall contain the provisions of section 209 which are being violated and a detailed description of the conditions which such representative finds cause and constitute such violation and a description of the area of such mine throughout which persons must be withdrawn and debarred. And then, as I understand it, from that comes the appeal. Mr. MOODY. I think my point, Congressman McConnell, has been shown here, that the only special inspection or the only review you have is to see whether you have carried out the order of the inspector, and not to question his order, but to only try to prove that you have done it. Now, there is no appeal, I think, from the actual violation of the regulations that he issued, and there is nothing that the chairman. read that indicates that, sir. Mr. McCONNELL. Mr. Chairman, to be sure of this from a legal standpoint, I would like to have Mr. Schorr give his opinion on this. I still am not quite clear on what has been stated here, whether what has been stated here is entirely accurate. Mr. GWINN. Is not the language quite clear that all this thing has to be done, and if it is not done, he simply extends the time and after a while all of the while the parties are admitting that they have to comply? Chairman BARDEN. It is perfectly all right to ask Mr. Schorr, but if I understand the English language, it means the inspector can go in and inspect the mine, and then he reports on his inspection, and then after he extends the time and so forth, then the Director can call for another inspection if he wants to by the same inspector, and then the mine inspector Mr. BAILEY. Would that be a special inspection, the same inspector? Chairman BARDEN. It could be. There is no limitation on it, and then the mine operator can call on the Director to have another inspection, and there is no reason why the Director of the mines could not appoint the same inspector to inspect it again. Mr. BAILEY. It is not left to the discretion of the Director; it says he shall, and it does not say he may have an inspection. Chairman BARDEN. He still can use the same mine inspector. Mr. MCCONNELL. Here is the part of the whole thing that bothers me. I found out what I am looking for. There is an order at the end of this period allowed for 209, and we will say there is an order. Mr. MOODY. Yes. Mr. MCCONNELL. And it is appealed to the Board. Mr. MOODY. That is right. Mr. McCONNELL. Pending such hearing, the applicant may file with the Board a written request that the Board grant such temporary relief from such order as the Board may deem just and proper. Mr. MOODY. Yes. Mr. McCONNELL. Now let us assume he did nothing. Mr. MOODY. Remember, your mine is down by that time. Mr. McCONNELL. Assuming he did nothing to touch the violations, to correct it or do anything about it, and he just ignored it, and then came the order, and he goes to the Board, the order would close him down. Now, pending such hearing the applicant may file with the Board a written request that the Board grant such temporary relief from such order as the Board may deem just and proper. Now, over here on page 21, "if the proceeding is one in which the operator seeks annulment or revision of an order, made pursuant to section 203 (c)," that is an order, and he is going to ignore it, "the Board upon conclusion of the hearing shall find whether or not there was a violation of section 209 and as described in such order." Is that not an appeal from a claim that there is a violation of 209, and I claim that there is? Mr. MOODY. There is the appeal from the order, yes, but remember that you have to wait through the period of aggravation and argument with your inspector until he finally closes you down, and after you are closed down, you can finally get some relief, but you cannot get relief prior to that. Mr. McCONNELL. Between the argument with the inspector, you can appeal to the Director for a special examination on the thing. Mr. MOODY. But only on the time factor; it is very carefully written there. Mr. McCONNELL. That is on findings. Mr. MOODY. Not the way it is written. Mr. WERDEL. In the language you read, Mr. McConnell, the power of the Board was to find whether there had been a violation of section 209. Now, section 209 is short and reads as follows: Every operator of a mine, and every person who is on the premises of a mine for any reason whatsoever, shall comply with the provisions of this section, * * In other words, their power is to make an order as to whether or not you violate the order that was issued by this individual, and is not a power of appeal to determine whether or not he made a reasonable finding, and a reasonable order when he closed down the mine. Now, if you read the language starting at the top of page 14, I think that you will find where the attorney becomes very much interested, because that reads as follows: (g) The Board shall hear and determine applications filed pursuant to section 207 for annulment or revision of orders made pursuant to section 203 or section 206. The Board shall not make or cause to be made any inspection of a mine for the purpose of determining any pending application. In other words, they have no power to go back, by the express language in the bill. They have no power to go back to find any different situation of fact as said to exist by the inspector. That is expressly said there. Mr. McCONNELL. I would like to hear Mr. Schorr at that point. There is a definite difference of opinion on this thing, and I do not agree with these statements. Mr. MOODY. I do not have my attorneys here, and not to have a legal debate, of course. Chairman BARDEN. Do you want to ask Mr. Schorr about that? Mr. WERDEL. Mr. Chairman, before we do that, now, yesterday we spent all of this time here, assuming, I believe, that when a qualified man, if we were going to do anything constructive in the coal safety field, when such a man with a halo and all walked into a place and said, "This place is dangerous," he should have the power to close it down. That is without appeal, and he would be able to make his order. Now, the question is whether we want to do that, and whether we think such men exist. Mr. VELDE. I would like to ask the witness Chairman BARDEN. I never have engaged in conducting, when a witness is invited to appear and he starts his appearance, I do not think much of the policy of interrupting his statement to let him be involved in a debate with someone who has been on the witness stand. Is that not a little unusual? Mr. McCONNELL. I am willing to not ask it. I thought we were trying to clarify this thing, and I want it clarified. Chairman BARDEN. I know we are trying to clarify it. Mr. McCONNELL. I m not trying to embarrass Mr. Moody on it. I give him my word on that. I want the thing cleared. I want the operators to have opportunities to be protected here. Mr. VELDE. I would like to ask the witness if he has any suggested language which would make it possible to appeal from the finding of the inspector, and that seems to be a point of legal terminology more than anything else. If we could find some way of appealing from the finding of the dangerous condition. Mr. MOODY. I hope you will pardon me, but I am not a lawyer. Mr. VELDE. You have conferred with your lawyers. Mr. MOODY. I really am not competent in that, and it comes under lawyers' duties, and if you are, you can probably work that out. We are opposed to the legislation, of course. Mr. GWINN. If I understand your point, it is that the operator has to comply with the inspector willynilly. Mr. MOODY. That is it. Mr. GWINN. He has no appeal from the inspection to fix this and fix that. Mr. MOODY. That is correct; because when he puts it down in the book, you are in violation of a Federal statute, and he gives you so much time to correct it. Mr. GWINN. What good is it for him to have the right to appeal after he has gone to all of the expense of trying to comply when he wants to resist it? Mr. MOODY. It is a little late,it seems to us. Mr. McCONNELL. He can ignore the whole thing and still have a chance to come in later. Mr. KELLEY. I see no reason why there should be an appeal before an order anyhow, because if you take that procedure, then you are going to delay the closing of the mine, and then there might be an explosion in the meantime. I see no reason why that should be done, except an appeal from the order. Mr. MOODY. We have been going around this mulberry bush, we forgot this gentleman and I were inspecting a mine, and what his question was originally, I believe, sir, as to how the inspector could damage a coal operator, and what he could do not as a matter of malfeasance but just as a matter of poor judgment, and what could the operator do about it. Chairman BARDEN. Let me just read this, and I think it is perfectly clear: Whenever an operator of a mine prior to the expiration of any such period of time requests him to cause and that is request the Director a special inspection to be made at such mine and now this is when the inspector goes in there and finds the condition upon making such a special inspection, such representative of the Bureau shall find (1)—and I am supplying the (1)— whether or not such violation has been totally abated. These are the limitations on the inspector: If he finds that such violation has not been totally abated, he shall find whether or not such period of time as originally fixed or as so fixed and extended should be extended. Now, if he finds such period of time should be extended, he shall find what a reasonable extension should be. If he finds that such violation has not been totally abated-and up to now he has only been dealing with either abatement or extension of the time And if such period of time as originally fixed or as so fixed and extended has then expired, and if he also finds that such period of time should not be further 21029-52-8 * * extended, he shall also find the extent of the area of such mine which is affected by such violation. Thereupon he shall promptly make an order *. Now, if I can understand the English language, there is not any confusion in what is done there. There may be some confusion over the advisability of it. Mr. KELLEY. There is no reason for the appeal. Chairman BARDEN. I do not know about that, but the question was whether or not there was an appeal from the inspector before the order, and Mr. McConnell said that there was, and Mr. Moody said there was not, and that was the object of the argument before we got going around the mulberry bush. Mr. McCONNELL. May I ask Mr. Henderson to speak on this? He has a point to bring out. Mr. HENDERSON. Reading on page 8, line 4, the sentence Mr. Barden was just reading is within the section: Upon making such a special inspection, such representative of the Bureau shall find whether or not such violation has been totally abated. At that point, and that sentence, Mr. McConnell, if you will recall, it was intended to cover a situation where the inspector found that there was a violation, but upon the special inspection, the second inspector found that there was no violation, and of course there would not be any violation to be abated. I think that you have got the second inspector finding whether or not the violation has been totally abated, and if there was no violation, he finds that there was no violation, it will have been totally abated. He must again find that there was a violation in order for that violation to not be totally abated. Now, the appeal is only to the Director for the special inspection, which he must make upon the application of the operator at any time. after the finding is made. Chairman BARDEN. Is there anything in there that prohibits the Director of Mines from making that special investigation or inspection by the same inspector who inspected it in the first place? Mr. BAILEY. Why is it a special inspection? Chairman BARDEN. Because it is done out of the ordinary run of inspection. Mr. HENDERSON. May I answer the chairman's specific question? It is not in this section. In the review section by the Director which is the review from an order, rather than from the finding, the Director Chairman BARDEN. We are not dealing with the order. This is prior to the order. Mr. HENDERSON. The Director is required to send another inspector. Chairman BARDEN. That is after the appeal from the order. Mr. WERDEL. It seems to me, if you will yield for just a moment, and again I want to say that this morning we are on entirely different ground, here yesterday we were worried about how we were going to serve an order at 10 entrances, and place the responsibility to close the mine down on the least possible notice possible on the finding of one man that there was imminent danger. Now to be excited about the gentleman's statement that there is not appeal from anything prior to the order being made, it seems to me to be utterly ridiculous, because we have assumed in this committee that if there is imminent danger in the opinion of one man, even though |