Require accurate and up-to-date maps showing all active workings, all worked out and abandoned areas, elevations, escapeways, adjacent mine workings, mines above and below, water pools above, and oil and gas wells in such mine;

Require a weekly examination of the volume of air entering main intakes, leaving main returns, and passing through the last open crosscut in each active entry;

Require a plan for immediate action when any mine fan stops to cut off the power and to withdraw all persons from the face workings;

Require adequate measures to prevent methane and coal dust accumulations on surface coal-handling facilities; and

Require the Secretary to assign full-time inspectors to extremely hazardous mines.

Promulgation of improved safety standards

As far back as 1938, with passage of the Federal Food, Drug, and Cosmetic Act, Congress recognized the necessity of flexibility of response. That act gave the agency responsible for its administration the freedom to develop and promulgate health and safety standards and to revise old ones as the need became apparent in accordance with prescribed procedures established by Congress. Other measures enacted during the past decade such as the Aviation Act of 1958, the National Traffic and Motor Vehicle Act of 1966, the Natural Gas Pipeline Act of 1968, and the Radiation Control for Health and Safety Act of 1968, provide this flexibility also.

The bill authorizes the Secretary to develop and promulgate improved mandatory standards applicable to coal mines subject to the act. The standards would be developed in consultation with other Federal agencies, representatives of the States, representatives of the coal mine operators and coal mine workers, and other interested persons and organizations and such advisory committees as the Secretary may appoint.

The procedures provided by the bill, however, insure the right of any interested person to object to any proposed standard and to obtain a public hearing on his objections.

TITLE III-ENFORCEMENT

The bill contains comprehensive provisions for inspection, enforcement orders, administrative and judicial review and penalties. Enforcement

Authorized representatives of the Secretary of the Interior would be required to make inspections and investigations in coal mines for the purposes of obtaining information relating to safety conditions, developing health and safety standards, determining whether an imminent danger exists in a mine, or determining whether a mine is complying with the mandatory health and safety standards. No representative (for example, inspector) of the Secretary or the Surgeon General could be refused entrance to any mine. There must be at least four inspections of underground coal mines each calendar year, in addition to spot inspections and other investigations and, most importantly, the inspector must not provide any advance notice of these inspections to the operators of mines.

The Secretary is given the authority to hold hearings and issue subpenas for the attendance and testimony of witnesses and for the production of relevant documents. In the event of a coal mine disaster, mine operators would be required to preserve any evidence which might be useful in investigating the cause of the incident; and an inspector, when present, may issue appropriate orders to insure persons' safety in the mine, and the operator of the mine must obtain the inspector's approval of any plan to recover persons or the mine or to return affected areas of the mine to normal.

If an inspector finds that an imminent danger exists in a mine, he would be required to issue an order requiring the mine operator to withdraw all workers from the section of the mine where the danger exists until it is determined by an inspector that the condition no longer exists.

If, upon any inspection, an inspector finds that there has been a violation of a mandatory health or safety standard, but the violation has not created an imminent danger, he would allow the violator a reasonable time to abate the violation. If the violation is not abated by the end of that period and if the inspector does not find that the period should be extended, he would be required to order a withdrawal of all workers from the area affected by the violation.

If an inspector finds a violation of a standard that does not cause an imminent danger, but is of such a nature as could significantly and substantially contribute to any mine hazard, and if he finds that the violation is due to an unwarrantable failure to comply with the standards, he includes the finding in the notice. During any inspection within 90 days after issuance of the notice, if an inspector finds another violation which is also due to an unwarrantable failure of the operator to comply, he must order the miners withdrawn from the

mine.

Once a withdrawal order has been issued in the case of an unwarrantable failure, the inspector must issue such an order on subsequent inspections when he finds the existence anywhere in the mine of a similar violation until such inspections disclose no similar violations. In respect to wage payments for time lost due to closure under a withdrawal order, the committee consensus was that it would not be proper to require the operator to make such payments unless the withdrawal order was based on "repeated failures" to comply with any health or safety standard. The bill accordingly makes payment provisions operative only where there have occurred at least two failures to comply with a health or safety standard. The failures do not have to relate to the same or a similar health or safety standard.

Notices and orders issued pursuant to an inspector's authority would contain detailed descriptions of the conditions or practices which caused the imminent danger or violation and would have to be promptly delivered to the mine operator involved.

Notices and orders may be modified or terminated by the inspector, subject to an appeal by the miners.

Orders of the inspectors are subject to review by the Secretary and the Secretary's decisions are subject to review in the U.S. Courts of Appeals.

In order to improve on the enforcement provisions of the 1952 Coal Mine Safety Act, and to insure speedy procedures and due process, the committee bill provides for standard, traditional ad

ministrative and judicial procedures by which operators and miners can obtain speedy review by the Secretary of orders by an inspector with immediate review of the Secretary's decision in the courts of appeals. The procedures are similar to those in other statutes granting regulatory authority to an administrative agency. The committee bill does not provide for an extra step of appellate review in a board of review prior to judicial review, as did the 1952 act.

Under the Federal Coal Mine Safety Act of 1952, there is a Coal Mine Safety Board of Review composed of two representatives of coal mine operators, two representatives of coal mine employees, and one public chairman (the most recent chairman having been a former vice president of a large coal company)..

Both the outgoing and incoming administration bills, S. 355 and S. 1300, proposed that this Board continue in existence with veto power over the Secretary in enforcement actions.

In testifying on such a Board, which on its face appears to be an industry-oriented Board, or a special interest Board, The Director of the Bureau of Mines said that the Board was "an escape valve" for the industry. In the Board's own presentation before the subcommittee of the Committee on Appropriations, it referred to itself "essentially as a buffer between the U.S. Bureau of Mines, and the coal industry."

To put an "escape valve," "buffer" Board of this character over the Secretary would weaken any possibility for effective enforcement of a health and safety statute. As noted by one of the most eminent professors of administrative practice and procedure, Prof. Louis L. Jaffe, Harvard Law School:

The process precisely inverts what should be the proper sequence. There might be some warrant for an initial industry judgment prior to a final decision by the public officer, but it is difficult to see what legitimate interest is served by subjecting the Secretary's judgment to the final decision of an industry board.

The most effective enforcement can be expected if the cabinet level official charged with responsibility for the health and safety of coal miners is given the authority and responsibility for enforcing this law. Speedy due process will best be protected by immediate appeals of his decisions to the Federal courts of appeals.

In addition, by abolishing the Board, the minimum annual expense of $150,000 can be avoided.

The bill authorizes both the Secretary and the courts to enjoin temporarily an inspector's withdrawal order. However, the committee believes it is necessary, in order to protect the health and safety of the miners to carefully circumscribe that authority. Therefore, the bill provides that in no event may a withdrawal order be temporarily enjoined if it is based on an imminent danger finding. Other withdrawal orders may be temporarily enjoined, but only if the operator can demonstrate that there is a substantial likelihood that he will succeed on the merits, and if he can demonstrate further that temporarily enjoining the order will not have an adverse effect on the health and safety of the miners.

During its deliberations, the committee was mindful of one instance in which a court temporarily enjoined a withdrawal order. The following morning, the mine exploded, killing five miners.

Furthermore, the committee adopted a provision which prohibits courts from temporarily enjoining the statutory standards. This will insure that the statutory standards will continue to protect the health and safety of miners, during any proceeding in which their validity is challenged, until the issue of validity is determined on the merits. Penalties

Since the basic business judgments which dictate the method of operation of a coal mine are made directly or indirectly by persons at various levels of corporate structure, the committee believed it necessary to place the responsibility for compliance with the act and the regulations, as well as the liability for violations on those who control or supervise the operation of coal mines as well as on those who operate them.

Both civil and criminal penalties are provided with criminal penalties attaching to willful violations. Fines up to $50,000 and imprisonment for between 1 and 5 years are prescribed for any individual corporate director, officer or employee who is responsible for the criminal conduct. Fines up to $50,000 are also prescribed for the corporate entity.

In addition, the committee adopted an amendment which authorizes a civil penalty of up to $1,000 on any miner guilty of endangering the lives of his fellow miners by smoking in the mine.

TITLES IV AND V-RESEARCH

The Department of the Interior estimates that within 3 years the administrative cost for coal mine safety, including health and safety research, will attain a level of at least $30 million annually, and remain there for the foreseeable years. Interior expects this $30 million plateau to be reached even if no new legislation is enacted.

These prospective costs are about three times greater than the current level of expenditures. In fiscal year 1969, for example, only $11 million was appropriated for the Bureau of Mines health and safety program for all mineral industries; less than $2 million of these funds was for health and safety research. Therefore, in absolute arithmetical terms, for health and safety for coal mines alone, the Department contemplates an additional need of at least $19 million a year.

There is no doubt that comprehensive and costly health and safety research is necessary. Nonetheless, the cost problem presented here squarely raises the question of who should pay; the already overburdened taxpayer or the industry whose inattention and failure to address itself adequately to health and safety is primarily responsible for the serious health and safety problems confronting the Nation's coal miners.

To assure that the industry itself bears in some measure the increased costs eaused by the health and safety problems, title V of the committee bill establishes a coal mine health and safety research trust fund in the Treasury. Under this title, there would be a research assessment on each ton of coal sold or used, beginning with 1 cent in the first year, and increasing a penny a year until it reaches a level of 4 cents per ton in the fourth year. This research assessment is expected to yield, by the fourth year, a minimum of $20 million annually for health and safety research.

It should be made clear that the research assessment should be not viewed as a method of full funding for this legislation. It simply assures that a contribution will be made by the coal industry to the costs of a large effort necessitated by its health and safety problem.

INTERIOR DEPARTMENT OPPOSES RESEARCH ASSESSMENT

The Department of the Interior opposes the research assessment. As stated in a May 22 letter from Under Secretary Train, the Department's position is:

We recognize that there is a need for more health and safety research for this industry, but we doubt that a system which taxes the production of coal and earmarks the revenues for health and safety research is the most appropriate method to supply this need.

Experience has shown to us that coal mining, indeed all mining, is a complex system, all parts of which must be considered simultaneously-health, safety, productivity, environmental control, and so forth. The effect of some improved mining technique on productivity cannot be considered apart from its effect on the health and safety of the miner or on its effect on environmental pollution. Our research program must therefore, be designed to study the entire mining operation. The proposed user tax, in contrast, would tend to separate the health and safety function into a separate category which would be artificial.

Under the bill, the levy would apply to all coal mining firms without regard for the method of mining or for their past safety record. The question you have asked raises the issue whether such a tax should be established on only one commodity or one industry.

For example, other dangerous industries, such as the nuclear industry which is a competitor of the coal industry, are not required to pay directly for health and safety research. The proposal might tend to confine the entire research and development effort to the Government. The future research and development effort should, in our opinion, not be carried out by the Government alone. Industry should be encouraged to assume, on an industrywide basis, a greater role in this

area.

Further, we believe that tax on the coal industry for health and safety research and development purposes should not be imposed without thorough study of its impact on the industry and the consideration of alternative approaches. To our knowledge, this has not been done to date.

For the above reasons, it is our view at this time that a tax should not be imposed in the coal industry for health and safety research and development purposes.

NEED FOR RESEARCH ASSESSMENT

The basis of the Department's position is narrow and does not reflect adequate concern for the public equities. A fair balance of the public interest requires careful attention to the question of the indus