Calendar No. 154
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95th CONGRESS
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SENATE
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REPORT
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1st Session
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No. 95-181
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FEDERAL MINE SAFETY AND HEALTH ACT OF 1977
MAY 16, 1977. -- Ordered to be printed.
Mr. WILLIAMS, from the Committee on Human Resources,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany H.R. 4287]
The Committee on Human Resources, to which was referred the bill (S. 717) to
promote safety and health in the mining industry to prevent recurring disasters in the mining industry, and for
other purposes, having considered the same, reports favorably thereon with an amendment and recommends
that the bill (as amended) do pass.
INTRODUCTION
The hazards involved with the mining of coal and other
materials and the need to provide for the health and safety of
the nation's miners have long been a matter of Federal law.
As early as 1865, a bill was introduced in the Congress to
create a Federal Mining Bureau. However, little was done until a
series of serious mine disasters occurred after the turn of the
century, causing public demand for Federal action to stop
excessive loss of life. In July 1910, an act of Congress
established a Bureau of Mines in the Department of the Interior
which was charged with making:
Diligent investigation of the methods of mining
especially related to the safety of miners and the
appliances best adapted to prevent accidents, the
possible improvement of
conditions under which mining operations are carried
on, the treatment of ores and other mineral substances,
the use of explosives, the prevention of accidents, and
other inquiries and technological investigations pertinent
to said industries.
This act recognized the need to attack the hazards in the
mineral industries. However, it contained a specific denial of
"any right or authority in connection with the inspection or
supervision of mines * * *" on the part of any Bureau employee.
It became apparent that the lack of inspection was a great
shortcoming of the act. Action to establish inspection authority
started in the 76th Congress when S. 2420 was introduced on May
16, 1939. The bill passed the Senate in early 1940. The House
Committee on Mines and Mining held hearings but failed to report
the bill.
When the bill was reintroduced in 1941, speedy House approval
and subsequent Senate passage produced Public Law 49, 77th
Congress. The law became known as title I of the Federal Coal
Mine Health and Safety Act. The House committee report to
accompany this legislation described the existing situation:
Investigation reveals no common standard of safety
among the States, no common regulations, and, in addition
to this, a lack of uniform enforcement of such regulations,
as are in effect. The jurisdiction of the Federal Bureau
of Mines is severely limited, and in fact it lacks
authority to enter the underground workings without
specific permission from the owners, and once inside,
upon invitation only, it has no authority to publicize
its findings or recommendations or improve or correct
conditions either directly or indirectly.
In order to supplement the work of the State agencies,
H.R. 2082, the bill under consideration, extends and
enlarges the authority of the Federal Bureau of Mines.
It is not regulatory in any sense. It merely authorizes
the Bureau, through its representatives, to make inspections
of the underground workings and publicize its findings and
recommendations. These inspections may be made annually or
when necessary, and are to be made in conjunction with the
local State agencies so that there is no usurpation of the
State authority.
The Bureau was given the authority to make inspections, yet it
was still severely handicapped in that there was no provision for
establishing safety standards for coal mines or for achieving
compliance with the standards or recommendations of the
Secretary. Steps have been taken since then to alleviate this
handicap and to create laws which would provide needed
protections to the miners of our Nation.
When the Federal Government operated a substantial portion of
the Nation's coal mines during 1946 and 1947, an agreement was
reached between the Secretary of the Interior and the Mine
Workers' president, embodying a Federal Mine Safety Code.
However, except for the brief period of time during which the
mines were operated by the Government, the Mine Safety Code
served only as a guideline to Federal inspectors and compliance
by operators was purely voluntary.
Public Law 328, 80th Congress requested that coal operators and
state mining agencies report the extent of compliance with the
Bureau of Mine recommendations. Seventeen coal mining states cooperated
fully with the request, while 2 others cooperated partially and
seven failed to cooperate in any extent. As a result of this
cooperation it was learned that there was 33 percent compliance
with the Bureau's recommendation while the act was in effect.
Because this was primarily an information gathering piece of
legislation, it lapsed after one year.
In 1951, 119 miners were killed in an explosion in West
Frankfort, Ill. The deaths of these miners led to new
legislation which was enacted in 1952 as Public Law 552, 82nd
Congress.
In signing this bill into law on July 16, 1952, President Harry
Truman commented that the law was "a significant step in the
direction of preventing the appalling toll of death and injury to
miners in underground mines."
Despite the major advances that had been made in the field of
mine safety and health, major mine disasters continued to occur.
A task force was established to investigate the mine safety
situation and to make recommendations. A report was submitted in
August, 1963. In 1966, Public Law 89376 became law, partially
fulfilling the task force recommendations. These amendments saw
to it that coal mines employing 14 or fewer persons were included
as title I mines. The Bureau was also given a new enforcement
tool, a "reinspection closing order" enabling inspectors to
prevent certain types of repeated violations by some operators.
The 1966 amendments only reached a small portion of the causes
of fatalities and accidents occurring in mines. The larger
number of such occurrences lay outside and beyond the reach of
the Federal statute, and was left by Congress to be embraced by
State laws and the Bureau of Mines Advisory Coal Mine Safety
Code.
In enacting the Federal Metal and NonMetallic Mine Safety Act
of 1966 (Public Law 89577) (herein, the Metal Act), the Congress
was still paying specific heed to the hazardous nature of the
mining industry.
The number and severity of the injuries experienced
each year by persons employed in the extractive
industries should be alarming to an America that
prides itself on its * * * concern for the welfare
of its citizens. (Sen. Report No. 1296, 89th Cong.,
2d Session, Federal Metal and NonMetallic Mine Safety
Act, p. 5)
It was this condition which the Metal Act was designed to
correct.
Similar concerns were the genesis for the Federal Coal Mine
Health and Safety Act of 1969 (Public Law 91153) (herein, the
Coal Act).
The committee determined early in its consideration
that the Nation can no longer accept the fatalistic
attitude which permeates this industry that "coal
mining is a hazardous occupation, and we cannot
change this fact." Men's lives are at stake and
those of their families who are dependent on them.
Despite the hazardous nature of this occupation,
the committee is convinced that these hazards can be
substantially reduced or eliminated. Many are due to
bad practices and a failure on the part of many, including the Federal Government,
to act vigorously years ago to change them.
(Senate Report No. 91411, 91st Cong., 1st Session,
Federal Coal Mine Health and Safety Act of 1969, p. 13)
Yet, despite this considerable Congressional attention, our
nation still experiences deaths and serious injuries in our mines
at a rate which casts shame on an advanced, industrialized
society. Every working day of the year, at least one miner is
killed and sixty-six miners suffer disabling injuries in our
nation's mines.
As disturbing is the frequency with which the nation is
experiencing tragic mining disasters. Numerous disasters in both
coal and non-coal segments of the industry underscore those areas
of inadequacy of our current law and the fact that the
enforcement and administration of our current mine health and
safety programs has failed to produce the level of protection for
our nation's miners which should be within the capacity of our
current mine safety laws.
At the Sunshine Silver Mine in Idaho, in May, 1972, 91 miners
died of carbon monoxide asphyxiation because they did not know
how to use self-rescuers or because the failure of mine
management to provide a secondary escape route trapped miners as
much as a mile underground.
At Buffalo Creek, in February, 1972, 125 persons died when a
dam burst sending a near tidal wave of murky water through the
seventeen mile long valley, while the mining enforcement agency
questioned its authority to regulate the coal mine impoundment
dam in question.
At Blacksville, in July, 1972, nine miners at work behind a
piece of equipment that caught, fire were trapped and died in the
mine because those at the scene of the fire had not been
adequately trained in emergency procedures.
At Scotia, in March, 1976 twenty three miners and three Federal
inspectors died in two explosions of accumulated methane gas when
the mine safety enforcement effort was unable to detect and
address chronic conditions of inadequate ventilation in that
mine.
Near Tower City, Pennsylvania, in February, 1977, nine miners
died when water from an underground source inundated active
workings, sending tons of water and debris coursing through the
mine.
These tragic disasters and the hundreds of deaths and serious
injuries which occur in our mine each year are testament to the
inadequacies of our current mine safety and health laws and their
past enforcement by the Department of the Interior. These
recurrences signal a pressing need for legislative improvements
in our mine safety and health programs.
It is unacceptable that years after enactment of these mine
safety laws, miners can still go into the mines without even
rudimentary training in safety. Mine operators still find it
cheaper to pay minimal civil penalties than to make the capital
investments necessary to adequately abate unsafe or unhealthy
conditions, and there is still no means by which the government
can bring habitual and chronic violators of the law into
compliance.
The 1976 Scotia disasters occurred while the Committee was
considering the inadequacies of the Metal and Coal Acts and the
enforcement of those laws. The Scotia disasters demonstrated
once again that until the Congress finally provides truly
effective mine health and safety laws and insists on responsive administration and
enforcement of those laws, this problem will continue to occur.
BACKGROUND
Currently, the protection of safety and health of our nation's
miners is provided by two separate statutes: the Metal Act and
the Coal Act. The Coal Act is considerably more comprehensive in
scope and reach than is the Metal Act. First, the Coal Act deals
with matters of miners' health and safety, while the Metal Act
deals primarily with miner safety. The Coal Act provides for
civil penalties for violations of the Act's standards, while the
Metal Act does not. The Coal Act provides for a considerably
more complex and definitive set of standards with which an
operator must comply, and all standards under the Coal Act are
mandatory. Standards under the Metal Act are not generally as
comprehensive and are often "advisory standards," failure to
comply with which would not place the mine operator in violation
of the Act. Enforcement is considerably more thorough under the
Coal Act than the Metal Act.
Enforcement of both laws is the responsibility of the United
States Department of the Interior and is currently the function
of the Mining Enforcement and Safety Administration (MESA) of
the Department. MESA is under the administrative control of an
Administrator, appointed by the President with the advice and
consent of the Senate. While this responsibility was originally
assigned to the Bureau of Mines, reaction to the Buffalo Creek,
Sunshine and Blacksville disasters, and Congressional pressure to
move mining safety and health enforcement responsibilities out of
the Interior Department, led the Interior Department, in 1973, to
establish MESA as an independent agency within the Department of
the Interior. The Bureau of Mines still retains certain
responsibilities for mine safety research under section 501 of
the Coal Act and section 6(a) of the Metal Act; and a separate
budget account number is maintained for this purpose.
The history of the Interior Department's enforcement of these
laws, either by the Bureau of Mines or by MESA, demonstrated a
basic conflict in the missions of the Department. In past years,
the Department has pursued the goal of maximizing production in
the extractive industries, which was not wholly compatible with
the need to interrupt production which is the necessary adjunct
of the enforcement scheme under the Metal and Coal Acts: even
though, in the Committee's view, over the long run, improved
health and safety promotes greater productivity through reduction
of "downtime" and improved employee morale. In addition,
lowered workers' compensation premiums which should result from
improved safety and health, can be expected to lower production
costs. On the other hand, no conflict could exist if the
responsibility for enforcing and administering the mine safety
and health laws was assigned to the Department of Labor since
that Department has as its sole duty the protection of workers
and the insuring of safe and healthful working conditions.
Under the Coal Act, underground mines must be inspected no less
frequently than four (4) times annually (Sec. 103(a) ), and no
advance warning of inspections is to be given. Unusually
hazardous mines are to be inspected even more frequently, as
often as once every five (5) working days (Sec. 103(i)). Inspectors tour the mine
and cite violations of the standards on a notice which indicates
the standards violated and, the period of time within which the
operator must rectify (abate) the violations found. The inspector
reinspects the mine after such time to insure that the violation
has been abated. (Section 104). Where an inspector notes a
condition or practice in a mine which could place miners in an
imminent danger of death or harm before such condition or
practice can be abated, the inspector is required to determine
the ares of the mine affected by such condition or practice and
order the miners in that area removed until the condition or
practice is abated (Sec. 104(a)).
The inspectors notice is subsequently forwarded to the MESA
Assessment Office where a proposed assessment of penalty for the
violation is made. Assessments are based upon the criteria set
forth in Section 109(a)(1) of the Act, to wit: the operator's
history of previous violations, the appropriateness of the
penalty to the size of the business, whether the operator was
negligent, the effect of the penalty on the operator's ability to
continue in business, the gravity of the violation, and the
demonstrated good faith of the operator. Penalty assessments
proposed are then communicated to the operator who may pay the
penalty or attempt to negotiate a settlement with officials of
the Assessment Office, or to litigate the proposed penalty before
an Administrative Law Judge of the Office of Hearings and Appeals
of the Department of the Interior. Review of the Administrative
Law Judge's decision can be had by the Board of Mine Operations
Appeals; and de novo review of the final agency action can be had
in the United States District Court (Sec. 109(a)(4)).
Under the Metal Act, inspections of underground mines must be
conducted no less frequently than once each year, with no minimum
number of inspections of surface mines specified (Sec. 4). The
Secretary may give advance warning of inspections. Inspectors
tour the mine and note conditions which are violative of the
standards promulgated under the Act. Where a condition is noted
which could cause imminent danger to miners before that condition
could be effectively abated, the inspector is authorized to issue
a closure order which, as in the Coal Act, bars miners from
working in the affected area until the condition is abated (Sec.
8(a)). Inspectors are also authorized to issue similar closure
or withdrawal orders where the violation previously "noted" has
not been abated within the time prescribed for such abatement
(Sec. 8(b)). The Act does not authorize the assessment of civil
penalties, and except for these possibilities of closure and
withdrawal orders already noted, there is no penalty provision of
the Act to induce operator compliance with the standards
promulgated under the Act. The Metal Act provides that an
operator may appeal the imposition of a closure or withdrawal
order to the Secretary, and further provides an appeal from the
Secretary's final order to the Federal Metal and NonMetallic
Mine Safety Board of Review established under Section 10 of the
Act. Perhaps indicative of the ineffectiveness of the Metal Act
is the fact that by 1975 the Board had not received a single
appeal from an adverse action of the Secretary, and the Board was
disbanded by Act of Congress.
OVERSIGHT OF MINE HEALTH AND SAFETY ENFORCEMENT
Review of the ten years of enforcement of the Metal act, and
six years of enforcement of the Coal Act, requires the Committee
to report that fatalities and disabling injuries in our nation's
mines are still unacceptably and unconscionably high. According
to the 1974 Annual Report on Occupational Safety and Health, the
incidence of work related injuries and illnesses for miners
exceeded the "all-industry" rate by about 14 percent. (Report,
at p. 50). Work related deaths showed, even more forcefully, the
inadequacies of the current mine safety and health laws and their
enforcement. According to the Report, "about one out of every
1500 mine workers and one out of every 2800 railroad workers was
killed on the job or died from work related injuries or illnesses
in 1973, compared with one out of every 4000 construction workers
and only one out of every 12,400 for all workers covered by OSHA.
" (Annual Report for 1974 on Occupational Safety and Health, at
p. 50.)
The following table of the rates of fatal and serious nonfatal
occurrences in our nation's mines since these laws became
effective evidence. The need for a legislative solution.
TABLE 1.--FATAL AND DISABLING INJURY RATES,
EXCLUDING MILLING OPERATIONS
[Per million man hours]
__________________________________________________________________
Mining
Metal/ industry
Year Coal nonmetal total
__________________________________________________________________
1966:
Fatal.......................... 1.01 0.47 0.69
Disability injury.......... 44.04 25.11 32.77
1967:
Fatal...................... .94 .46 .66
Disability injury.......... 42.53 24.13 31.91
1968:
Fatal...................... 1.42 .51 .89
Disability injury.......... 42.29 24.30 31.80
1969:
Fatal...................... .88 .49 .65
Disability injury.......... 42.95 23.60 31.66
1970:
Fatal...................... 1.05 .43 .70
Disability injury.......... 45.60 26.43 34.85
1971:
Fatal...................... .76 .42 .56
Disability injury.......... 49.82 26.42 36.37
1972:
Fatal...................... .62 .87 .74
Disability injury.......... 49.65 25.45 37.84
1973:
Fatal...................... .51 .53 .52
Disability injury.......... 43.73 24.16 33.41
]974:
Fatal...................... .48 .50 .49
Disability injury.......... 31.12 25.84 28.43
1975:
Fatal...................... .44 .35 .40
Disability injury.......... 31.78 21.97 27.33
1976:
Fatal...................... .40 .33 .36
Disability injury.......... 39.31 19.12 30.51
The Committee's oversight has taken the form of hearings on
Health and Safety in the Coal Mines (June 26, August 6, 7, 14,
and 17, 1970), the Buffalo Creek Disaster (May 3031, 1972).
Oversight on the Implementation of the Federal Coal Mine Health
and Safety Act (September 5, 1972), and the Scotia Mine Disaster
(Joint Hearings with the Education and Labor Committee of the
House) (May 7, and 13, June 16, 1976). The Committee also
conducted investigations of the Blacksville, Sunshine, Buffalo
Creek, and Scotia Disasters. In addition, at the Committee's
request, the General Accounting Office has issued reports on the
following subjects: B-170686 (May 13, 1971) Problems in
Implementation of the Federal Coal Mine Health and Safety Act of
1969; B-170866 (July 5, 1973) Follow-up on Implementations of the
Federal Coal Mine Health and Safety Act of 1969; B-170686 (Dec.
31, 1975) Improvements Still needed in Coal Mine Dust Sampling
Program and Penalty Assessments and Collections; National Bureau
of Standards Report, An Evaluation of the Accuracy of the Coal
Mine Dust Sampling Program Administered by the Department of the
Interior; B-166582 (February 12, 1976) Analysis of Closure Orders
issued under the Federal Metal and Nonmetallic Mine Safety Act
of 1966.
As a result of this oversight experience the Committee must
draw a number of conclusions about the current mine safety laws
and the enforcement and administration of those laws:
First, the Metal Act does not provide effective protection for
miners from health and safety hazards and enforcement sanctions
under that Act are insufficient to encourage compliance by
operators.
Second, enforcement of safety and health laws should be the
responsibility of agencies which are generally responsible for
the needs of workers.
Third, both the Coal and the Metal Acts do not provide means to
react quickly enough to newly manifested health hazards.
Fourth, the procedures by which safety and health standards are
made under both the Metal and the Coal Act are much too slow and
cumbersome for standards promulgated under those Acts to keep
pace with developments in a dynamic and expanding industry.
Fifth, the assessment and collective civil penalties under the
Coal Act have resulted in penalties which are much too low, and
paid much too long after the underlying violation to effectively
induce meaningful operator compliance.
Sixth, enforcement sanctions under the current laws are
insufficient to deal with chronic violators.
The Committee believes that there is great need to encourage
young people to go into the occupation of mining as the need of
our nation for the minerals and energy sources extracted from the
earth continues to increase. It is the Committee's feeling that
the duty of the Congress, if it is to encourage such employment,
is to make that employment as safe as possible. The experience
of the past ten years clearly indicates that not all that can be
done has been done to promote health and safety in our nation's
mines.
The Committee's oversight of the enforcement and administration
of the mine safety laws has demonstrated that the Department of
the Interior has been seriously deficient in past years in its
enforcement and administrative responsibilities under these statutes. S. 717
is designed and drafted to correct these deficiencies and make
the enforcement of the mine safety laws more responsible to the
demonstrated needs of our nation's miners and the mining
industry.
The Administration concurs in these findings and supports the
transfer of the mine safety and health program to the Labor
Department. Secretary of Interior Cecil D, Andrus testified
before the Labor Subcommittee, and said that "the numbers of
fatalities and serious injuries * * * are still unacceptably high
* * * and the increase in MESA issued violation notices indicates
there is still insufficient incentive for operators to correct
and prevent health and safety violations before the inspector
arrives at the mines." "[A] 11 too often the operator finds it
cheaper to pay the penalties than to strive for a violation-free
mine."
The Committee strongly believes that industry-wide compliance
with strong health and safety standards must be a basic ground
rule for increased production.
The Secretary of the Interior, stated that the improvements
which this bill makes in current laws "are absolutely necessary"
and "must not be compromised." Among these are:
one statute for both coal and metal/nonmetal mines, affording
equal protection for all miners and a common regulatory program
for all operators;
a statutory general duty for operators to provide workplaces
free from hazards likely to cause death or harm;
mandatory time schedules for standards development to
expedite the rulemaking process;
increased emphasis on development of health standards;
strengthened enforcement mechanisms;
mandatory training standards; and finally
proved procedures for assessment and collection of civil penalties.
The Secretary urged enactment of the bill at the "earliest
possible moment".
CHRONOLOGY OF THE BILL
S. 2117, and S. 1302, similar measures were introduced in the
93rd and 94th Congresses, respectively. No action was taken on
S. 2117 in the 93rd Congress. S. 1302 was favorably reported by
the then Committee on Labor and Public Welfare, but there was
insufficient time for the Senate to consider the measure prior to
adjournment sine die in October of 1976.
S. 717, the Federal Mine Safety and Health Amendments Act of
1977 was introduced by Chairman Harrison A. Williams, Jr., with
twenty-five cosponsors on February 11 (legislative day, February
1,) 1977, and was referred to the Committee on Human Resources.
The Subcommittee on Labor held hearings on the bill on March 30
and 31, and April 1, 1977. The Subcommittee heard testimony from
witnesses representing the Federal Government, unions which
represent miners, the mining industry and the general public.
Government witnesses included: Secretary of the Interior, Cecil
D. Andrus; Acting Assistant Secretary of the Interior (Energy and
Minerals), William D. Bettenberg; Administrator, Mining
Enforcement and Safety Administration, Robert E. Barrett;
Assistant Secretary of Labor (Policy, Evaluation and Research),
Arnold H. Packer; Solicitor of Labor, Carin Ann Claus; and Deputy
Solicitor of Labor, Robert B. Lagather.
Witnesses from the United Mine Workers, United Steelworkers of
America, the Oil, Chemical and Atomic Workers, and the Cement,
Lime and Gypsum workers testified on behalf of unions who
represent miners.
Industry witnesses included officers of National Coal
Association, American Mining Congress, Gypsum Association,
Association of Bituminous Contractors, National Crushed Stone
Association and Trona Mining Companies.
The public's interest was represented by witnesses from the
Center for Law and Social Policy. Additional statements for the
Record were received from the Nation.al Limestone Institute and
National Sand and Gravel Association.
The Subcommittee on Labor unanimously reported S. 717 to the
Committee on Human Resources on Wednesday, April 20, 1977, and
the Committee on Human Resources considered the measure in
Executive Session on Tuesday, May 3, 1977, and ordered S. 717
favorably reported to the Senate with amendments.
Amendments adopted in Full Committee
In Executive Session, the Committee on Human Resources agreed
to a series of amendments without objection. They are as
follows:
Section 102(a) of Section 201 is amended to require the
Secretary to the extent practicable, to promulgate separate
safety and health standards applicable to mine construction work
which is done on the surface.
Section 102(a)(3) of Section 201 is amended to permit the
Secretary of Labor to subpoena testimony and the production of
evidence in connection with the hearings held as a part of the
standard making process.
Section 102(a)(3) of Section 201 is amended by deleting
references to standard making hearings as "informal".
Section 104(f)(1) of Section 201 is amended to require the
Secretary to inspect mines upon written, specific complaints of
miners or their representatives that hazardous conditions exist
in those mines.
Section 116 of Section 201 is amended to require the Secretary
to promulgate standards dealing with the safety and health
training of mine construction workers.
Section 301 is amended to authorize the Director of the Office
of Management and Budget, in consultation with the Secretaries of
Labor and the Interior to make determinations necessary with
respect to the transfer of enforcement and administrative
responsibilities from the Interior to the Labor Department.
Section 303(a)(3) is amended to increase the appropriation
authorization for mine safety and health research to $60,000,000.
Section 303(d) is amended to increase the appropriation
authorization for state grant programs to $10,000,000, with the
proviso that at least half the sums actually appropriated shall
go to coal mining states.
A SUMMARY OF S. 717, THE FEDERAL MINE SAFETY AND HEALTH
AMENDMENTS ACT OF 1977
Protection of the safety and health of miners is presently
provided for under two statutes administered by the Department of
the Interior: The Metal Act enacted in 1966 and applicable to
mines other than coal mines and the Coal Act. The occupational
safety and health of practically all other nongovernmental
workers is provided for under the Occupational Safety and Health
Act of 1970 administered by the Department of Labor.
The basic approach taken by S. 717 is to combine protection of
all miners under a single comprehensive law the Federal Mine
Safety and Health Act of 1977 administered by the Department of
Labor, which adopts the best features of each of the three
current statutes dealing with worker health and safety. The Coal
Act is amended to make it applicable to all mines and The Metal
Act is repealed. All functions and responsibilities of the
Secretary of the Interior in the area of mine safety and health
(e.g. are transferred to the Secretary of Labor, to develop,
promulgate, and enforce safety and health standards) except for
the responsibility to administer the National Mine Health and
Safety Academy and to conduct mine safety research which is
retained by the Secretary of the Interior. The Mining Enforcement
and Safety Administration is established within the Labor
Department under a new Assistant Secretary to administer the new
Act and an independent Mine Safety and Health Review
Commission is established to review orders, citations and
penalties.
The basic provisions of the bill, which would create the new
Federal Mine Safety Act are as follows:
1. Mine safety and health standards.-- All existing standards
under the Coal Act and all mandatory standards under the Metal
Act are retained under the bill. The Secretary can promulgate
new standards, if needed, but new standards in areas covered by
existing standards cannot reduce existing levels of protection.
Advisory standards under the Metal Act are to be referred to an
Advisory Committee to be empaneled within 60 days of enactment.
The Committee is to review these standards and report to the
Secretary those which warrant promulgation as new, mandatory
standards. The Secretary shall order an abbreviated rulemaking
procedure, and after a period for public comment, promulgate such
of these standards as he finds warranted as new mandatory
standards. Operators are required, under a "Duties" provision,
to provide a place of employment "free from hazards that are
likely to cause death or harm." Separate standards are to prevail
for the coal and non-coal segments of the industry, generally.
The Secretary of Labor, with the aid of advisory committees if
he so requests, may issue a proposed rule modifying or revoking
existing standards or proposing new ones. Whether based on an
Advisory Committee's recommendations or not, the Secretary starts
the rule or standard making procedure by publishing a proposed
rule or standard in the Federal Register for public and industry
comment. A hearing, if requested, is to be had, and after full
opportunity for public input, the Secretary may publish the
standard. Standards dealing with toxic substances are to be
based on the best available evidence, are to be stated to the extent practical, in terms of
objective criteria and are to be established to most adequately
assure that miners shall suffer no material impairment if
exposed to the standard level throughout their working life.
Special procedures are provided for:
Emergency Temporary Standard -- when miners are exposed to
grave danger due to toxic substances or other hazards with
immediate commencement of rulemaking proceedings for
permanent standards after Federal Register publication of
the temporary standard.
Variances from the application of standards where the
variances would provide at least as safe and healthful conditions
as compliance with the standard.
Persons adversely affected by a promulgated standard may
challenge its validity in an appropriate United States court of
appeals.
The bill requires at least four inspections each year for all
underground mines in their entirety, and at least two inspections
a year for all surface mines in their entirety, and at least one
spot inspection every 5 working days for particularly hazardous
mines.
The bill permits operators and miners or representatives to
accompany inspectors, and permits miners to request inspections
in writing if they suspect a hazardous situation exists, or to
point out hazardous conditions to an inspector. The bill permits
the Secretary to take appropriate action to protect persons and
evidence in case of an accident in a mine.
After making an inspection of a mine, an inspector will issue a
citation to the mine operator indicating any violations of the
health or safety standards or the general duty clause. In
addition to the violations, the citation specifies a time period
within which the violation must be fully abated. Within a
reasonable time after the citation, the Secretary must notify the
operator of the proposed penalty. These procedures are patterned
on the current Coal Act.
The inspector may also issue a closure order (a sanction
retained from the Coal Act) under certain prescribed
circumstances, including the presence of an imminent danger or an
operator's failure to fully abate a violation within the time
specified in the citation, or the operator's unwarranted failure
to comply with the Act's requirements or the existence of a
violation of a significant and substantial nature after the
operator has established a pattern of such violations in the
mine. The closure order closes a mine or a portion of the mine
affected by the particular condition or practice to all but
essential personnel until such time as the conditions or
practices resulting in its issuance have been abated.
Violators of the Act are also subject to a variety of civil and
criminal penalties, derived primarily from the Coal Act. Maximum
civil penalties range from $250 assessable against miners who
violate smoking-related standards to as much as $10,000 for each
violation of the Act by a mine operator and as much as $1,000 per
day for each day beyond the prescribed abatement period that a
mine operator's violation remains unabated. Imposition of civil
penalties for violations is mandatory, although the amount
assessed is based upon the gravity of the violation, the
operator's good faith, the history of violations at the mine and
the size of the mine.
The bill also grants the U.S. district court power to formulate
an appropriate remedy, including injunctive relief, to insure
that miners are afforded the Act's protections where the
Secretary can show, based on past violations or other facts, that
there is a pattern of violations of the Act's requirements which
constitute a continuing hazard to the health and safety of
miners.
A five member Mine Safety and Health Review Commission is
created as a separate entity. The Commission is empowered to act
in panels of three members. The Commission serves as the
ultimate administrative review body for disputed cases arising
under the new mine safety act. An operator or affected party or
employee representative may appeal to the Commission the issuance
of a closure order or of any proposed penalty. Miners or their
representative, or Operators may contest to the Commission a
citation issued to an operator that fixes an abatement period
they believe is unreasonable. In all such cases, the Commission
is to afford an opportunity for a hearing. Administrative Law
Judges of the Commission shall hear matters before the Commission
and issue decisions affirming, modifying or vacating the
Secretary's order, proposed penalty or extending the abatement
period set in the citation. A decision of an ALJ shall become
the final order of the Commission within 40 days unless review is
directed by the Commission. The Commission's review of a
decision of the ALJ on appeal shall be discretionary. Two
members of the Commission may authorize such review. The
Commission may also review cases on its own initiative and remand
cases to an ALJ for further proceedings where warranted.
Persons adversely affected by the Commission's final order may
obtain a review of such order in any appropriate U.S. court of
appeals. The Secretary may also obtain review or enforcement of
any final order to the Commission in an appropriate U.S. court of
appeals.
Any such review or enforcement proceeding in the court shall be
based on the record developed before the Commission and other
pleadings. No objection not argued before the Commission shall
be heard by the Court (except in extraordinary circumstances) and
findings of fact by the Commission shall be conclusive if based
upon substantial evidence in the record as a whole.
The health research functions now performed by the Bureau of
Mines with regard to mine safety and health will be transferred
to the National Institute of Occupational Safety and Health
(NIOSH), in the Department of HEW. Specifically, NIOSH is
authorized to conduct research related to the development of mine
health standards in the same way that it now performs that
function under OSHA. Safety research and operation of the mine
academy will continue to be conducted by the Secretary of the
Interior in coordination with the Secretary of Labor.
THE PROVISIONS OF S. 717
The Committee believes that it is essential that there be a
common regulatory program for all operators and equal protection
under the law for all miners. Thus, a principal feature of the
bill is the establishment of a single mine safety and health law
applicable to the entire mining industry. The Committee also
believes that the Coal Act should serve as the framework for this
approach, but recognizes that a number of changes in the Act are
essential for the establishment of such a strengthened mine
safety and health program.
TITLE I
Title I of S. 717 contains amendments to the definitions in the
Coal Act, which reflect both the broader jurisdiction of that
Act, and makes refinements which nearly seven years of experience
with the administration and enforcement of the Act have indicated
are necessary.
Thus, for example, the definition of "mine" is clarified to
include areas, both underground and on the surface, from which
minerals are extracted (except minerals extracted in liquid form
underground), and also, all private roads and areas appurtenant
thereto. Also included in the definition of "mine" are lands,
excavations, shafts, slopes, and other property, including
impoundments, retention dams, and tailings ponds. These latter
were not specifically enumerated in the definition of mine under
the Coal Act. It has always been the Committee's express
intention that these facilities be included in the definition of
mine and subject to regulation under the Act, and the Committee
here expressly enumerates these facilities within the definition
of mine in order to clarify its intent. The collapse of an
unstable dam at Buffalo Creek, West Virginia, in February of 1972
resulted in a large number of deaths, and untold hardship to
downstream residents, and the Committee is greatly concerned
that at that time, the scope of the authority of the Bureau of
Mines to regulate such structures under the Coal Act was
questioned. Finally, the structures on the surface or
underground, which are used or are to be used in or resulting
from the preparation of the extracted minerals are included in
the definition of "mine". The Committee notes that there may be
a need to resolve jurisdictional conflicts, but it is the
Committee's intention that what is considered to be a mine and to
be regulated under this Act be given the broadest possibly
interpretation, and it is the intent of this Committee that
doubts be resolved in favor of inclusion of a facility within the
coverage of the Act.
Similarly, the definition of mine "operator" is expanded to
include "any independent contractor performing services of
construction at such mine." It is the Committee's intent to
thereby include individuals or firms who are engaged in
construction at such mine, or who may be, under contract or
otherwise, engaged in the extraction process for the benefit of
the owner or lessee of the property and to make clear that the
employees of such individuals or firms are miners within the
definition of the Federal Mine Safety and Health Act of 1977. In
enforcing this Act, the Secretary should be able to issue
citations, notices, and orders, and the Commission should be able
to assess civil penalties against such independent contractors as
well as against the owner. operator, or lessee of the mine. The
Committee notes that this concept has been approved by the
federal circuit court in Bituminous Coal Operators' Assn. v.
Secretary of the Interior, 547 F2d 240 (C.A. 4, 1977).
TITLE II
Title II of S. 717 rewrites and substantially revises title I
of the Coal Act. That title contains the principal
administrative and enforcement sections of the Coal Act, and will
contain the enforcement and administrative provisions of the new
mine safety and health law. While title I of the Coal Act
contains a comprehensive administration and enforcement mechanism which has, in fact,
served as the model for subsequent occupational health and safety
legislation, including the Occupational Safety and Health Act and
this Act, seven years of Committee oversight into the
administration and enforcement of the Coal Act has demonstrated
that there is a need for certain reforms to these procedures.
Difficulties have developed in the administration and enforcement
of the Coal Act which need to be corrected, so that miners can be
afforded maximum protection.
While the noted deficiencies in the current law will be
discussed more fully below, it is useful to summarize them in
order to indicate why the Committee felt these changes were
essential. Basically, they fall into two broad areas, standard
making and penalty assessment and collection.
The standards are the key element in the statutory scheme to
afford safe and healthful working conditions for our nation's
miners. To do this, the mechanism by which standards are made
and revised must be efficient. Standards must be generated on
demonstrated needs of miners. This has not, in the past, been
the case. Although the need for standards on impoundments and
refuse piles was graphically illustrated by the Buffalo Creek
tragedy in February, 1972, such standards were not proposed under
the Coal Act until January 1974, and were not finally promulgated
and effective until November 1975, fortyfive months after the
Buffalo Creek flood. Standards for lighting requirements for
underground coal mines, which the 1969 Coal Act required the
Secretary to propose within nine months of enactment, were not
finally promulgated until October of 1976 and will not be finally
effective until April of 1978. The nearly nonexistent rate of
promulgation of improved health standards under the Coal Act has
been a great disappointment to the Committee, and demonstrates
that the procedure for promulgating health standards is of the
basic flaws in the standard making mechanism of that Act.
The assessment and collection of civil penalties under the Coal
Act has also been a great disappointment to the Committee. The
Committee firmly believes that the civil penalty is one of the
most effective mechanisms for insuring lasting and meaningful
compliance with the law. Simple comparison of the improvements
in the rates of fatal and serious nonfatal occurrences in both
the coal industry, under the civil penalty systems, and the
metal/nonmetallic industry under a system of no civil penalties
clearly indicates the effect, in terms of improved safety and
health to miners, of the civil penalty system. (See table 1,
supra.)
The civil penalty system under the Coal Act, has, since the
effective date of that Act been fraught with difficulties which
have hampered its effectiveness. The Secretary's initial penalty
assessment procedures was initially determined to be improper by
the court, and a new procedure was established. The new
procedure resulted in low initial assessments. While low penalty
assessments constitute one disturbing element of the current
civil penalty system, the Committee is equally disturbed by the
rather long period of time between citation of the initial
violation and the final payment of the penalty associated with
that violation. After the 1976 Scotia mine disaster, the Labor
Subcommittee investigated the violation history of that mine and
the assessment and payment of civil penalties. Table 2 indicates
that the period of time between citation of the violation and
payment of penalties was too long to constitute an effective
inducement to compliance.
TABLE 2.--SUMMARY SCHEDULE OF AVERAGE ASSESSMENT AND
COLLECTION TIMES FOR VIOLATIONS ON SCOTIA
MINE--l974 THROUGH THE FEB. 6,
ORDER OF ASSESSMENT
________________________________________________________________
Category of Average Average Minimum Maximum
violations days days days days
from from from from
violation violation violation violation
to to to to
assessment collection assessment assessment
________________________________________________________________
Ventilation violations,
30 CFR, pt. 75,
subpart D............. 198 270 91 413
Fire protection
violations, 30 CFR,
pt. 75, subpart I..... 181 259 114 342
Combustible materials
and rock dusting
violations, 30 CFR,
pt. 75, subpart E..... 203 272 98 345
Electrical equipment
general, 30 CFR,
pt. 75, subpart F..... 191 252 62 345
Roof support violations,
30 CFR, pt. 75,
subpart C............. 194 259 124 317
Safely standard violation
for surface work areas
of underground coal mines,
30 CFR, pt. 77........ 272 343 115 353
Trailing cable and
grounding cable
violations, 30 CFR,
pt. 75, subparts G
and H................. 225 297 62 345
Maps, hoisting and
mantrip violations,
30 CFR, pt. 75,
subparts M and 0...... 208 250 135 270
Dust standard violations,
30 CFR, pt. 70,
subpart B............. 237 267 47 750
Miscellaneous violations,
30 CFR, pt. 75,
subpart R............. 229 287 62 442
_________________________________________________________________
The Committee firmly believes that to effectively induce
compliance, the penalty must be paid by the operator in
reasonably close time proximity to the occurrence of the
underlying violation. A number of problems with the current
penalty assessment and collection system interfere with this.
Final determinations of penalties are not self-enforcing, and
operators have the right to seek judicial review of penalty
determinations, and may request a de novo trial on the issues in
the U.S. District Courts. This encourages operators who are not
predisposed to voluntarily pay assessed penalties to pursue cases
through the elaborate administrative procedure and then to seek
redress in the Courts. Since the District Courts are still
reluctant to schedule trials on these eases, and the Department
of Justice has been reluctant to pursue such cases in the courts,
the matters generally languish at that stage, and the penalties
go uncollected. In the seven years since the effective date of
the Coal Act virtually no penalties have been collected as a
result of court decisions.1
U.S. DEPARTMENT OF THE INTERlOR,
OFFICE OF THE SOLICITOR,
April 26, 1977.
Hon. GRIFFIN BELL,
Attorney General,
Washington, D.C.
DEAR MR. ATTORNEY GENERAL: As I am sure you are aware the
Mining Enforcement and Safety Administration, a component of The
Department of the Interior, is charged with enforcement of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801,
et seq. The Act provides for the imposition of civil penalties
for violation of health and safety standards. Court enforcement
of civil penalties imposed under the Act is accomplished through the appropriate United
States Attorney under the supervision and guidelines established
by the Assistant Attorney General for the Criminal Division.
It is our policy to have strong effective enforcement of the
Coal Act particularly with regard to the imposition and
collection of civil penalties and to this end we have, or are in
the process of initiating many procedural and substantive changes
to our existing methods of assessing and enforcing civil
penalties. It has been brought to my attention that at present
there are numerous civil penalty cases which have bean referred
to various United States Attorneys throughout the country that
must be characterized as "overdue" for action. I believe that
these cases represent approximately five million dollars in
penalties and that the primary backlogs are in three districts,
i.e., the Western District of Virginia, the Eastern District of
Kentucky and the Southern District of West Virginia.
It is our opinion that forceful action must be taken to aid
these districts to move these cases forward to conclusion. As
you can imagine the sheer volume of this backlog significantly
hinders our ability to conduct a strong enforcement program. On
behalf of Secretary Andrus, I would appreciate your personal
attention in working towards a resolution of this problem. If we
can be of any assistance in this regard, please let me know.
Sincerely,
________ ________,
Solicitor.
This lack of compulsion has encouraged the Department of the
Interior to accept offers of compromise on assessed penalties, on
the perhaps understandable rationalization that accepting such
compromises would enable some penalties to be collected, and
would shorten the time span between underlying violation and
payment of the penalty. The result of such compromises, is that
the initial assessments, already too low in the Committee's
estimation, are often further reduced, and the amounts actually
paid by operators for violations which are quite serious in many
cases, are a mere slap on the wrist too little to effectively
induce meaningful compliance by operators with the safety and
health requirements of the law.
The administrative and enforcement provisions of S. 717, then,
to the extent that they augment the similar provisions of the
Coal Act, do so within the concept of a comprehensive safety and
health law applicable to the entire mining industry.
Operator's duty
Under this legislation, operators would have the duty to
furnish miners places of employment which are free from
recognized hazards that are causing or likely to cause death or
harm to miners (Sec. 101 (a)). The purpose is to require the
elimination of recognized hazards that are not specifically
covered by a standard. A recognized hazard should be readily
apparent to an operator, or a hazard which though not readily
apparent, can be detected by commonly utilized tests in the
industry or used by other organizations, governmental or
nongovernmental, recognized in the fields of industrial hygiene
or industrial safety.
While this duty places the primary responsibility for providing
a safe and healthful working environment on the operator, who, of
course, ultimately has the authority to operate the mine, the
Committee recognizes that creation and maintenance of a safe and
healthful working environment is not the task of the operator
alone. If the purposes of this legislation are to be achieved,
the effort must be a joint one, involving the miner and his
representative as well as the operator. Accordingly, Subsection
(b) of Section 101 establishes the miner's duty to comply with
the Act and its requirements. It is the intention of the
Committee that this duty will foster the necessary cooperation
between miner and operators which the Committee believes must be
encouraged if the nation's mines are to be made truly safe.
Thus, while miners are required to comply with standards
insofar as they are applicable to their own actions and conduct,
except with respect to the penalty for smoking in a mine,
(Section 111(i)), neither the bill, nor current law contemplates
that citations and penalties be issued against miners. Operators
have the final responsibilities for affording safe and healthful
workplaces for miners, and therefore, have the responsibility for
developing and enforcing through appropriate disciplinary
measures, effective safety programs that could prevent employees
from engaging in unsafe and unhealthful activity.
Standard setting
S. 717 establishes procedures for the promulgation,
modification or revocation of mandatory safety and health
standards. By establishing a timetable which governs each step
of the standards promulgation procedure, it seeks to eliminate
delays in standards setting.
Section 102(a)(1) provides that the standard promulgation
procedure shall commence when the Secretary deems that there is a
demonstrated need for such a standard as a result of information
which he develops or which comes to him from other sources. While
the section mentions some possible sources of such information,
that list is not intended to be exclusive. It is the Committee's
intent that the Secretary consider recommendations for standards
which come from any source with pertinent information or
knowledge of mine safety or health, industrial hygiene, or
similar fields.
In initiating the standard promulgation procedure the Secretary
may, in his discretion, make use of an advisory committee. If
the Secretary desires to use an advisory committee, he is
obligated by the statute to give the advisory committee no more
than 180 days within which to make its recommendation (sec.
102(a)(1)), and he must publish his proposed rule in the Federal
Register within 60 days of the advisory committee's
recommendation or the reasons for his determination not to do so.
Where recommendations, accompanied by appropriate criteria, are
received from the National Institute for Occupational Safety and
Health (NIOSH), the Secretary must within 60 days commence
standards promulgation procedures. In such circumstances, he
must, within the specified time period, either refer the matter
to an advisory committee, publish a proposed standard, or publish
the reasons for a determination not to issue a proposed standard.
The Committee wishes to emphasize that the use of advisory
committees in the standard making process is discretionary. This
discretion is given to the Secretary so that he has a clear
mandate to utilize an advisory committee if he so chooses, and not to indicate that
the Committee expects the Secretary to use advisory committees in
connection with any specific standard setting.
While S. 717 does not retain the present requirement in the
Coal Act (Sec. 101(c)) for "pre-proposal consultation" with
interested parties, the bill would not preclude the Secretary
from engaging in such consultations, since the Secretary has the
clear authority and responsibility to consult with interested
parties in connection with standard making. Pre-proposal
consultation often has been a useful tool for the Secretary, and
the Committee concurs that such consultation does not require
chartering of an advisory committee under the Federal Advisory
Committee Act. Consultations may include persons of the various
interests and viewpoints, be open to the public and whenever
possible be announced in the Federal Register. Transcripts of
such meetings are not required.
After publication of a proposal in the Federal Register,
interested persons have a period of 30 days within which to file
written comments. The Committee recognizes that in certain
cases, as where a complex or highly technical proposal is
published, or when a major revision of existing standards is
undertaken, it may be desirable to extend the comment period. S.
717 provides that the Secretary may extend the comment period
upon a finding of good cause published in the Federal Register.
If a hearing is requested, the Secretary must publish a notice
of hearing within 60 days of the close of the comment period.
Any hearing must commence within 60 days after publication of the
notice of hearing.
In conducting such hearings, the Secretary is authorized to
establish procedural rules which will enable him to fulfill his
duty to develop a record necessary to fully explain the pertinent
facts and issues in the most efficient and expeditious manner
possible. It is essential that undue delay, or redundancy, or
prolixity of evidence be avoided. A transcript shall be made of
the informal hearing and is to be made available to the public.
The bill expressly provides that the standards setting hearings
be conducted in accordance with the provisions of section 553 of
title 5 of the United States Code and that the requirements of
sections 556 and 557 of that title would not be applicable. The
Committee believes that formal proceedings, involving trial-type
hearings, based on full cross-examination of witnesses and
credibility findings, with burden of proof requirements on the
agency, are completely inappropriate to the development and
promulgation of standards. Proceedings under section 553 would
serve to avoid opportunities for confusion and delays in
effectuating the Act's goals and, at the same time, provide an
adequate means for the Secretary to obtain the information
necessary to the development of standards to protect miners.
However, it is anticipated, to insure fairness, that the
Secretary will issue necessary rules to assure that all
interested parties have ample opportunity to participate in these
proceedings, including the right, limited by the need to avoid
undue delays, to make oral presentations.
The bill authorizes the Secretary to subpena witnesses and
evidence which he believes relevant and necessary in connection
with any rulemaking activity under this section: While it is anticipated that, in
most cases, the necessary information will be provided
voluntarily, this provision is intended to assure that the
Secretary has the means to obtain data which may otherwise not be
forthcoming that would assist in the development of standards.
The Committee notes that this subpena power is discretionary.
Any requirement that the Secretary is emphasis to subpena
evidence before proceeding to issue a standard is inconsistent
with the prompt, informal, legislative-type rulemaking hearings
contemplated by this Act. The Secretary is, however, empowered
to use subpoenas if he deems it necessary to responsible
rulemaking.
Within 90 days of the certification of the hearing record (or
of the close of the comment period if no hearing is requested),
the Secretary is required to issue his final rule or to make a
determination not to issue the proposed rule. Such rule or the
Secretary's determination not to issue a rule must be published
in the Federal Register with the reasons for such determination.
S. 717 eliminates the possibility of the lengthy standard
promulgating procedures, which have too often been experienced
under the current Coal and Metal Acts, by putting a closure date
on the several steps of the process. Once the standard
promulgation procedure begins, it is regulated within a specific
statutory time frame. This procedure should facilitate more
expeditious promulgation of standards. At the same time,
however, the Committee realized that despite the exercise of good
faith, the Secretary may in certain cases be unable to meet the
time limitations. Failure to meet the time frames in such cases
should not be grounds for challenging the validity of the
standard.
The Committee recognizes that it may be necessary to delay the
effective date of a mandatory health or safety standard where
existing technology or apparatus is not available to meet a
standard or in other appropriate circumstances. Sec. 102(a)(4)
(D) permits the Secretary to delay the effective date only for
such reasonable period as the secretary determines may be
necessary to insure effective compliance.
Review of Standards
S. 717 provides for review of standards in the Circuit Court.
The Committee intends that the procedures under this section
shall be the exclusive means for testing the validity of
standards and that the validity of standards shall not be subject
to collateral attacks before the Commission or in other types of
enforcement proceedings. The Committee believes that the proper
time to raise objections to a standard is at the time that the
standard is proposed and being promulgated, and it should be the
duty of all concerned parties to insure the development of the
most complete record within the administrative standards setting
procedure.
While the right to participate in the judicial review process
is not limited to those who participated in the administrative
standards setting process, the bill provides that objections that
have not been urged in the administrative rulemaking proceedings
may not be considered by the appeals court unless the failure or
neglect to raise the objection is excused because of
extraordinary circumstances.
Persons adversely affected by a standard must seek judicial
review of the validity of such standard within sixty days after
promulgation. By limiting the time within which judicial review
of promulgated standards may be sought, it is intended to give
maximum finality to mandatory standards once promulgated and
thereby increase the certainty of the government's regulations.
In reviewing standards, the Committee intends the Court of
Appeals to apply the arbitrary and capricious test, the criterion
usually applied to rules issued in accordance with the
procedures in section 553 of Title 5 of the United States Code.
This test would require the reviewing court to scrutinize the
Secretary's action to determine whether it was rational in light
of the evidence before him and reasonably related to the law's
purposes, and is, in the Committee's view, the appropriate test
for judicial review of legislative-type proceedings involving
policy judgments in areas where specific factual findings cannot
always realistically be made.
Toxic materials and harmful physical agents
The bill also provides for the promulgation of standards
dealing with toxic substances, and harmful physical agents.
Section 102(a)(5)(A) of the bill requires that standards dealing
with toxic materials and harmful physical agents shall most
adequately assure, on the basis of the best available evidence,
that no miner will suffer material impairment of health or
functional capacity even if such miner has regular exposure to
hazards dealt with by such standard for the period of his working
life. The Secretary's authority under this section includes not
only the promulgation of standards covering individual substances
but also standards covering classes or groups of substances. The
Committee believes that "generic" standards of this kind may
often provide more effective protection to miners. The committee
believes that the overriding consideration in setting health
standards dealing with toxic substances and harmful physical
agents must be the protection of the health of miners.
This section further provides that "other considerations" in
the setting of health standards are "the latest available
scientific data in the field, the feasibility of the standards,
and experience gained under this and other health and safety
laws." While feasibility of the standard may be taken into
consideration with respect to engineering controls, this factor
should have a substantially less significant role. Thus, the
Secretary may appropriately consider the state of the engineering
art in industry at the time the standard is promulgated.
However, as circuit courts of appeals have recognized,
occupational safety and health statutes should be viewed as
"technology-forcing" legislation, and a proposed health standard
should not be rejected as infeasible "when the necessary
technology looms on today's horizon". (AFL-CIO v. Brennan, 530
F. 2d 109) (CA 3 1975); Society of Plastics Industry v. OSHA, 509
F. 2d 1301 (CA 2) cert. den. 427 992 (1975).
Similarly, information on the economic impact of a health
standard which is provided to the Secretary of Labor at a hearing
or during the public comment period, may be given weight by the
Secretary. In adopting the language of section 102(a) (5) (A),
the Committee wishes to emphasize that it rejects the view that
cost benefit ratios alone may be the basis for depriving miners
of the health protection which the law was intended to insure. The Committee concurs with the
judicial constitution that standards may be economically feasible
even though from the standpoint of employers, they are
"financially burdensome and affect profit margins adversely"
(I.U.D. v. Hodgson 499 F. 2d 647 (D.C. Cir. 1974)). Where
substantial financial outlays are needed in order to allow
industry to reach the permissible limits necessary to protect
miners, other regulatory strategies are available to accommodate
economic feasibility and health considerations. These strategies
could include delaying implementation of certain provisions or
requirements of standards in order to allow sufficient time for
engineering controls to be put in place or a delay in the
effective date of the standard.
Section 102(a)(5)(B) of the bill requires the Secretary of
Health, Education and Welfare to study toxic materials or harmful
physical agents found in mines and determine those which are
potentially toxic at the concentrations in which they are used or
found in a mine. The Secretary of HEW must submit a list of such
determinations to the Secretary within 18 months from the date of
enactment and on a continuing basis thereafter. As soon as
possible after preparing the list, the Secretary of HEW must
develop pertinent criteria regarding any such substances
determined to be toxic or any such physical agents and shall
submit such to the Secretary as developed. Within 60 days of
receipt of any such criteria, the Secretary must commence
rulemaking proceedings for any toxic material or harmful physical
agent not adequately covered by existing regulations, pursuant to
the provisions of Sec. 102(a) or publish his determination not to
do so.
Labels or other forms of warnings; medical examinations
Section 102(a)(6) of the bill requires that a standard that is
promulgated must prescribe the use of labels or other opprobriate
forms of warning to insure, as necessary, that miners are
apprised of all hazards to which they are exposed, relevant
symptoms and appropriate emergency treatment, and proper
conditions and precautions of safe use or exposure. While labels
are useful in apprising miners of the hazards to which they are
exposed, in many circumstances other forms of warning may be
equally or more effective. It is not intended that labels be
prescribed indiscriminately, because as labels proliferate, their
effectiveness will be diminished. The Secretary, in determining
the most effective means of apprising miners of hazards, should
bear in mind the diminished effectiveness that may result from
excess labelling, and should consider other means of informing
miners of hazards, such as safety and health training or
requiring periodic briefings of miners.
Section 102(a)(6) of the bill requires the Secretary to include
in health standards, where appropriate, the requirement that
miners be given periodic medical examinations. The Committee
intends that the operator must bear the cost of providing such
medical examinations or tests. Such medical examinations are
intended to be for the benefit of miners, and are for the
purpose both of testing the adequacy of the standard and testing
whether the miner has been subjected to material impairment of
health or functional capacity as a result of exposure to the
substance or hazard. As such, the medical examinations are a
key aspect of the health standards. To encourage miners to take
such medical examinations, this section requires the Secretary to
issue appropriate standards requiring that miners who, as a result of these
examinations, are determined to have suffered material impairment
of health or functional capacity as a result of exposures be
reassigned to positions where they will not be so exposed; and
that they continue to receive compensation at no less than the
regular rate for miners in the classification such miner held
immediately prior to transfer. This "regular rate" is to include
any subsequent salary increase received by miners in the
classification such miners held immediately prior to transfer.
These requirements would be enforced through the issuance of
appropriate citations, orders and penalties under sections 105
and 106. In addition, under section 106(c), it would be unlawful
for an operator to discriminate against a miner who is the
subject of medical examination and potential transfer under the
provisions of a standard issued under this section.
Special standards making
S. 717 also makes provision for special standard promulgation
to deal with situations resulting from the combination of
existing laws into a single law and from extraordinary
circumstances.
a. Existing mandatory standards.-- Existing mandatory standards
under both the Coal and the Metal Act are carried over and become
mandatory standards under S. 717 until such time as they may be
amended, modified or revoked by the Secretary. As is the case
under the Coal Act, S. 717 requires that all new or revised
standards promulgated by the Secretary must afford the same level
of protection which is provided by current standards.
b. Existing advisory standards under the Metal Act.-- Because
advisory standards are inconsistent with the enforcement scheme
envisioned by the bill, section 301(b) (2) of S. 717 provides a
special procedure for study of the existing advisory standards
under the Metal Act. Within 60 days of enactment, the Secretary
shall establish an Advisory Committee to review the current
advisory standards and to recommend, within 180 days, which of
the advisory standards should be promulgated as new mandatory
standards. A special abbreviated rulemaking procedure is
provided for such promulgation. All health and safety standards
contemplated by S. 717 are to be mandatory standards. The bill
uses the phrase "mandatory health and safety standard" because
this is a defined term under the Coal Act and this bill. The use
of the term "mandatory standard" should not be interpreted to
mean that there also will be non-mandatory standards.
c. Emergency temporary standards.-- Section 102(b) of the bill
authorizes the Secretary to issue emergency temporary standards
in situations of grave danger to miners, without first going
through the statutory rulemaking procedures. Three points
concerning this provision bear emphasis.
First, this provision is designed to allow the Secretary to
react quickly to grave dangers which threaten miners before those
dangers manifest themselves in serious or fatal injuries or
illnesses. The Committee emphasizes that these provisions should
not be interpreted as suggesting that a record of fatalities or
serious injuries is necessary before an emergency temporary
standard can be issued. Disasters, fatalities, and disabilities
are the very things this provision is designed to prevent. The
Committee, therefore intends that emergency
temporary standards should be issued under this section when the
Secretary determines that miners are exposed to a working
environment which contains dangers with the potential to
threaten human life, health and safety and there is no adequate
enforceable safety or health standard to protect them against
that potential. Waiting until those dangers manifest themselves
as fatalities or disabling injuries or illnesses, frustrates the
purpose of the provision.
Second, this provision does not exclude any particular classes
of grave dangers from those for which an emergency temporary
standard is available. For example, it is intended that
emergency temporary standards be issued in response to grave
dangers that are of novel as well as of longstanding causes; or
of dangers that result from conditions whose harmful potential
has just been discovered, or from those to which large numbers of
miners are being newly exposed. To exclude any kind of grave
danger would contradict the basic purpose of emergency temporary
standards protecting miners from grave dangers. That a danger
has gone unremedied should not be a bar to issuing an emergency
standard. Indeed, if such is the case, the need for prompt
action is that much more pressing.
Third, once the Secretary has identified a grave danger that
threatens miners the Committee expects the Secretary to issue an
emergency temporary standard as quickly as possible, not
necessarily waiting until he can investigate how well that grave
danger is being managed or controlled in particular mines.
The Committee fully realizes the serious nature of permitting
the Secretary to issue an enforceable standard without hearings
and other means of more precisely determining in advance the
myriad ramifications of his actions. These provisions do not
require the Secretary to prove the existence of a grave danger as
a matter of record evidence prior to taking action, but permit
him to take immediate action as a matter of preventive policy.
In short, the Committee realizes the need to act quickly where,
in the judgment of the Secretary, a grave danger to miners
exists. To strike a balance between these two considerations,
the bill permits the emergency temporary standard to remain in
effect for only tone months.
After the emergency temporary standard is issued, the Secretary
shall initiate the rule making process pursuant to Sec. 102(a) in
which all views can be carefully considered in connection with
the issuance of a permanent standard.
(d) Safety and Health Standards for More Construction
Workers.-- The Committee recognizes that in some instances the
health and safety standards applicable to mining operations may
not adequately address the hazards faced by workers engaged in
mine construction. For this reason, Section 102(a) (7) requires
the Secretary, to the extent practicable, to promulgate standards
which will apply to mine construction activity which takes place
on the surface in a separate section of the regulations, so that
mine construction workers and contractors and inspectors will
have them available in one place for ready reference. These
should include all mining standards which could be applicable to
construction activity as well as other standards, such as OSHA
standards, which may also be applicable to mine construction
hazards. The requirement that standards be separately
promulgated does not relieve construction operators from complying with the
requirements of the Act generally, including the general duty
clause.
The Committee believes that construction workers engaged in
underground construction are generally exposed to the same
hazards as are underground miners. For this reason, the bill
does not require the promulgation of separate standards for
underground construction, as the Committee believes that it would
be extraordinarily difficult for the Secretary to determine which
of the mandatory health and safety standards applicable to
underground mining activity would or would not apply to
underground construction work as well.
The committee notes that in addition to mandatory standards
applicable to all operators, operators are also subject to the
requirement set out in the various mine by mine compliance plans
required by statute or regulation. The requirements of these
plans are enforceable as if they were mandatory standards. Such
individually tailored plans, with a nucleus of commonly accepted
practices, are the best method of regulating such complex and
potentially multifaceted problems as ventilation, roof control
and the like. The Committee notes with approval that individual
mine plan adoption and implementation procedures have been
sustained by the federal Court of Appeals for the District of
Columbia circuit (Ziegler Coal Company v. Secretary of the
Interior, 536 F. 2d 398, (1976). Thus, the Committee fully
expects the individual mine plan technique to continue to be
utilized by the Secretary in appropriate circumstances. The
Committee cautions that while the operator proposes a plan and is
entitled, as are the miners and representatives of miners to
further consultation with the Secretary over revisions, the
Secretary must independently exercise his judgment with respect
to the content of such plans in connection with his final
approval of the plan. The operator and the representative of
miners are entitled to full and prompt judicial review of plan
contents, under Section 102(f).
Variances from standards
S. 717 provides that, variances from existing standards may be
granted by the Secretary in two circumstances:
(1) A variance may be granted for the performance of research
in connection with safety or health matters (Sec. 102(c)); and
(2) a variance may be granted in cases where the Secretary finds
that alternative means of performing the work exist which are as
safe and healthful as would be afforded if the standard were in
effect, or that the application of the standard at a particular
mine would diminish the health or safety of the miners (Sec.
102(d)).
In all cases, it is the Committee's expectation that such
variances not be granted unless the petitioner can clearly
demonstrate that miners who work under such variances will be
exposed to no greater risks than they would be exposed to had no
such variance been granted. The Committee's intention is that in
all such cases, the working conditions be no less safe and
healthful than those contemplated by the standard. It is the
Committee's intention that the affected miners and the public be
notified of the Secretary's decision to grant research variances.
It is further the Committee's intention that miners and their
representatives be informed of the application for variances by
appropriate means in addition to the requirement of publication
in the Federal Register and afforded an opportunity to participate fully
in any proceeding which could result in the granting of a
variance under Section 102(d), and provision is made that any
interested party shall be afforded an opportunity for a public
hearing on the issue. The language of Section 102(d) is based on
Section 301(c) of the Coal Act, and it is the Committee's
intention that variances will be granted under this section on a
case-by-case, mine-by-mine basis. Section 102(e) also retains
the prohibition on granting variances for the mandatory health
standards promulgated under title II of the Coal Act prior to the
effective date of this Act. However, variances may be granted
for mandatory health standards promulgated after the effective
date of this Act.
INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING
Purpose and advance notice
Frequent inspections and investigations are authorized under
Section 104 for a variety of purposes, such as determining
whether or not there is compliance with mandatory safety and
health standards or with any requirement of the Act, including
the general duty requirements of Section 101; and to assist the
Secretary in developing improved standards or procedures.
Moreover, it is important that, except for inspections by the
Secretary of Health, Education, and Welfare, no advance notice of
an inspection be given to any person.
Number of inspections
Section 104(a) would require that the Secretary of Labor
conduct at least four inspections a year of each underground mine
in its entirety and two inspections a year of each surface mine
in its entirety. The present Coal Act requires a minimum of four
such inspections per year of underground mines and the Metal Act
requires only one such inspection annually. White this provision
sets a minimum number of inspections, the Committee notes that
the bill also requires the Secretary to increase the number of
inspections required based on guidelines which he develops. It
is expected that should the Secretary require additional
resources to meet this inspection burden, such re sources would
be made available through the normal appropriations process.
The bill also authorizes the Secretary to establish special
inspection schedules for mines which liberate more than 200,000
cubic feet of methane or other explosive gases per day.
The Department of the Interior, under the Coal Act,
administratively defined "excessive quantities" of explosive
gases as one million cubic feet liberated with a twenty-four hour
period, which, at this time, includes 57 mines. During
consideration of S. 1302 in the 94th Congress, the Committee
discussed whether this administrative definition subjected a
sufficient number of mines to the more frequent inspection
schedule. It was noted, for instance, that the Scotia Mine,
which liberated about 240,000 cubic feet of methane per day, was
not, under the Department's guidelines, subject to the more
frequent inspection requirements of this section, despite the
fact that that mine was the gassiest mine in the district in
which it was located.
The provision in Sec. 104(h) requires inspection once each ten
days of mines liberating 500,000 cubic feet of such gasses per
day, which is consistent with current MESA administrative
practices; and inspection once each 15 days for mines liberating
200,000 cubic feet of such gasses per day. The Committee
believes strongly that such measures will insure that mines which
liberate more than 200,000 cubic feet of methane or other
explosive gasses during a twenty-four hour period are given
adequate attention and impose a reasonable inspection burden on
the Secretary. These mines must be inspected frequently enough
to insure that explosions such as the ones which occurred at the
Scotia Mine can be averted through assiduous inspection.
Right of entry
Section 104(a) authorizes the Secretary of Labor and the
Secretary of Health, Education, and Welfare to enter upon, or
through any mine for the purpose of making any inspection or
investigation under this Act. This is intended to be an absolute
right of entry without need to obtain a warrant. The Committee
notes with approval the decision of the three-judge Federal Court
in Youghiogheny & Ohio Coal Company v. Morton, 364 F. Supp. 45
(S.D. Ohio 1973) which holds the parallel provision of the Coal
Act permitting unannounced warrantless inspection of coal mines
constitutional. Safety conditions in the mining industry have
been pervasively regulated by Federal and State law. The
Committee intends to grant a broad right-of-entry to the
Secretaries or their authorized representatives to make
inspections and investigations of all mines under this Act
without first obtaining a warrant. This intention is based upon
the determination by legislation. The Committee notes that
despite the progress made in improving the working conditions of
the nation's miners under present regulatory authority, mining
continues to be one of the nation's most hazardous occupations.
Indeed, in view of the notorious ease with which many safety or
health hazards may be concealed if advance warning of inspection
is obtained, a warrant requirement would seriously undercut this
Act's objectives.
The Committee has specifically adopted the prohibition on
advance notice of inspections which is currently the rule under
the Coal Act, and rejects the provision of the Metal Act which
permits such advance notice.
Taking of testimony
Section 104(b) gives to the Secretary of Labor the authority to
issue subpoenas for the attendance and testimony of witnesses and
the production of evidence under oath. This authority is limited
to investigations, and not inspections. Implicit in the
authority to require testimony and the production of evidence
under oath is the authority for the Secretary of Labor or his
authorized representative to administer oaths for purposes of
this provision.
Recordkeeping
The bill in Section 104(c)(1) gives the Secretaries broad
authority to prescribe recordkeeping requirements which are
necessary to the enforcement of the Act or for developing
improved safety and health standards.
A concurrent right of access by the Secretaries to these
records is also given. Regulations may additionally require
operators to themselves conduct periodic inspections of mines,
to include, but not, limited to firebossing, preshaft
inspections, or methane and dust monitoring.
Section 104(c)(4) of the bill contains separate requirements
concerning the reporting, recording and investigating of
accidents and of death or injuries. Such investigations shall
be made and records kept whether or not the accident results in
injury or death. Every accident must be investigated by an
operator both to determine its cause and to ascertain the means
to prevent recurrence. This provision reasserts the Committee's
view that the primary responsibility for mine safety and health
is the operator's and requires the operator to maintain a
continuing program for mine safety and health. Such accidents
may forewarn mine operators of potential hazards, and they should
thus be investigated, and remedial action should be taken
regardless of whether actual injuries occurred. The operator is
required to keep a record of his actions to prevent recurrence of
similar accidents. These records are available for inspection by
interested persons.
Section 104(d) provides that the Secretary, in promulgating
regulations regarding the keeping of records, and in other means
of obtaining information, do so in a manner which minimizes the
burden on operators consistent with his need to efficiently and
effectively perform his enforcement responsibilities. It is the
Committee's intention, however, that in trying to minimize the
record keeping burden on operators, the Secretary bear in mind
that the primary objective of the Act is the assurance of the
health and safety of miners. The bill therefore places this
requirement on the Secretary, and the Secretary's determinations
are to be final. In this respect, the Committee recognizes that
adequate investigation of accidents by operators assists
operators to develop responsive and responsible in-house safety
and health programs. Further, it is not the intention of the
Committee to distinguish mines by their size with respect to the
applicability or enforcement of mandatory health and safety
standards.
The right of miners and miners' representatives to accompany
inspectors
Section 104(e) contains a provision based on that in the Coal
Act, requiring that representatives of the operator and miners be
permitted to accompany inspectors in order to assist in
conducting a full inspection. It is not intended, however, that
the absence of such participation vitiate any citations and
penalties issued as a result of an inspection. The opportunity
to participate in pre or post-inspection conferences has also
been provided. Presence of a representative of miners at opening
conference helps miners to know what the concerns and focus of
the inspector will be, and attendance at closing conference will
enable miners to be fully apprised of the results of the
inspection. It is the Committee's view that such participation
will enable miners to understand the safety and health
requirements of the Act and will enhance miner safety and health
awareness. To encourage such miner participation it is the
Committee's intention that the miner who participates in such
inspection and conferences be fully compensated by the operator
for time thus spent. To provide for other than full compensation
would be inconsistent with the purpose of the Act and would
unfairly penalize the miner for assisting the inspector in
performing his duties. The Committee also recognizes that in
some circumstances, the miners, the operator or the inspector may
benefit from the participation of more than one representative of
miners in such inspection or conferences, and this section
authorizes the inspector to permit additional representatives to
participate.
Accidents
The unpredictability of accidents in mines and uncertainty as
to the circumstances surrounding them requires that the Secretary
or his authorized representative be permitted to exercise broad
discretion in order to protect the life or to insure the safety
of any person. The grant of authority in Section 104(i) to take
appropriate actions and in Section 104(j) to issue orders is
intended to provide the Secretary with flexibility in responding
to accident situations, including the issuance of withdrawal
orders. Further, the circumstances surrounding the accident may
be such that an order necessary to preserve evidence may be
appropriate. It is intended that by preventing possible
destruction of evidence, the Secretary may be better able to
determine the cause of the accident and thereby prevent the
future occurrence of a similar accident.
Inspection on the request of miners
S. 717 carries over an important right granted to miners under
the Coal Act, the right to request inspections by the Secretary
of mines which the miners have reasonable grounds to believe to
be dangerous. The provision, Section 104(f) (1) expands the
protection which is currently offered only to representatives of
miners under the Coal Act. The provision makes clear that any
representative of miners, or any individual miner may request
such an inspection. Such requests must be in writing, signed by
the miner or miners' representative, and must specify the alleged
violation or imminent danger situation which is believed to
exist. Under this provision the Secretary shall conduct an
inspection upon receipt of such a request, and serve upon the
mine operator a copy of the request no later than the time of
inspection. The Committee is aware of the need to protect miners
against possible discrimination because they file complaints, and
accordingly, the Section requires that the name of the person
filing the complaint and the names of any miners referred to in
the complaint not appear on the copy of the complaint which is
served on the mine operator. While other provisions of the bill
carefully protect miners who are discriminated against because
they exercise their rights under the Act, the Committee feels
that strict confidentiality of complainants under Section 104(f)
(1) is absolutely essential.
To assure that complaints are being responded to, the section
requires that upon completion of any inspection and determination
that the violation or danger alleged does not exist, the
Secretary must inform the complainant.
While Section 104(f)(1) requires that such complaints be
written, and signed by the complaining party, the Committee does
not intend to preclude the Secretary's response to unwritten or
unsigned complaints. The Committee notes that MESA currently
maintains an inward WATS line (an "800" number) for the express
purpose of receiving complaints about hazardous conditions in mines. The Secretary
must respond to appropriate complaints under Section 104(f) (1),
but he need not necessarily follow up on complaints that do not
meet the requirements of that section.
Finally, Section 104(f) (2) permits miners or their
representatives to notify inspectors of suspected violations or
hazards which they believe may exist in the mine while the
inspector is at the mine premises.
Both of these provisions are based on the Committee's firm
belief that mine safety and health will generally improve to the
extent that miners themselves are aware of mining hazards and
play an integral part in the enforcement of the mine safety and
health standards.
Citations and orders
Section 105(a) provides that if, upon inspection or
investigation the Secretary or his representative believes an
operator has violated this Act or any standard, rule, order or
regulation promulgated pursuant to this Act, he shall with
reasonable promptness issue a citation to the operator. There
may be occasions where a citation will be delayed because of the
complexity of issues raised by the violations, because of a
protracted accident investigation, or for other legitimate
reasons. For this reason, section 105(a) provides that the
issuance of a citation with reasonable promptness is not a
jurisdictional prerequisite to any enforcement action.
Citations shall describe with particularity the nature of the
violation, and fix a reasonable time for the violation's
abatement.
The Committee believe that rapid abatement of violations is
essential for the protection of miners. A violation of a
standard which continues unabated constitutes a potential threat
to the health and safety of miners. Therefore, if the violation
is not eliminated by abatement in the specified period of time,
the miners should be withdrawn from the area affected by the
violation until the violation is abated. Section 105(b) provides
the Secretary with such authority upon a determination that the
violation has not been totally abated within the original or
subsequently extended abatement period, and that the abatement
period should not be further extended.
The Committee intends that withdrawal orders shall be issued
when there has been a failure to abate violations within the time
specified in the citation. A withdrawal order is properly issued
under this section if an inspector finds during the same or
subsequent inspection of the mine that an operator has failed to
abate a violation. For example, if a citation is issued with an
abatement period of one hour, and the violation is not abated in
that time, the authorized representative shall issue a withdrawal
order under this section when he follows up on the citation,
whether such follow-up is on the same or a subsequent inspection.
Operators may seek Commission review of such withdrawal orders
for failure to abate under section 106. In the case of failure
to abate pursuant to the requirements of a citation, the
Secretary may propose daily penalties of up to $1,000 per day
under section 111(b).
Unwarranted failure closure orders
Section 105(c) contains another sanction, carried over from the
Coal Act but not present in the Metal Act; the unwarranted
failure closure order. Like the failure to abate closure order of
section 105(b), the unwarranted failure order recognizes that the
law should not tolerate miners continuing to work in the face of
hazards resulting from conditions violative of the Act which the
operator knew of or should have known of and had not corrected.
The "unwarrantable failure" remedy first found its way into
coal mine safety law with the Federal Coal Mine Safety Act
Amendments of 1965.
The current Coal Act continues this provision in Section 104(c)
which provides that where an inspector finds a violation which,
while not causing imminent danger, could "significantly and
substantially contribute to the cause and effect of a mine safety
and health hazard" (the so-called "gravity" test), and where the
violation was the result of the operator's "unwarrantable
failure" to comply with the Act, the inspector shall so note such
findings in his notice of violations. The section further
provides that if within the same or a subsequent inspection
within 90 days the inspector finds "another violation of any
mandatory * * * standard and finds such violation to be also
caused by an unwarrantable failure of such operator to so
comply", then the inspector shall issue an order requiring all
miners to be removed from the affected area. When an order has
been issued pursuant to Section 104(c) (1), and subsequent
inspection which reveals "the existence in such mine of
violations similar to those which [triggered the 104(c) (1)
ordered]", the inspector shall promptly issue a withdrawal order
under Section 104(c) (2) on each such occurrence until an
inspection of the mine in its entirety shows "no similar
violations."
The Interior Board of Mine Operations Appeals has until
recently taken an unnecessarily and improperly strict view of the
"gravity test" and has required that the violation be so serious
as to very closely approach a situation of "imminent danger",
Eastern Associated Coal Corporation, 3 IBMA 331 (1974).
The Committee notes with approval that the Board of Mine
Operations Appeals has reinterpreted the "significant and
substantial" language in Alabama By-Products Corp., 7 IBMA 85,
and ruled that only notices for purely technical violations could
not be issued under Sec. 104(c)(1).
The Board there held that "an inspector need not find a risk of
serious bodily harm, let alone death" in order to issue a notice
under Section 104(c)(1).
The Board's holding in Alabama By-Products Corporation is
consistent with the Committee's intention that the unwarranted
failure citation is appropriately used for all violations,
whether or not they create a hazard which poses a danger to
miners as long as they are not of a purely technical nature. The
Committee assumes, however, that when "technical" violations do
pose a health or safety danger to miners, and are the result of
an "unwarranted failure" the unwarranted failure notice will be
issued.
The other decisional limitation on the use of this sanction has
been the rather narrow interpretation of the term "unwarrantable
failure".
The Board has recently reinterpreted the phrase "unwarrantable
failure to comply" to mean "the failure of an operator to abate a
condition or practice constituting a violation of a mandatory
standard it knew or should have known existed, or the failure to abate
such a condition or practice because of indifference or lack of
reasonable care." Ziegler Coal Co., 7 IBMA 280.
The Committee approves the recent decision of the Board of
Mine Operations Appeals in Ziegler Coal Co. which liberalized the
interpretation of the term "unwarrantable failure."
Finally, Section 104(c) (2) of the Coal Act provides that, the
inspection which permits the operator to revert back to Section
104(c) (1) must disclose no "similar" violations. MESA has
enforced this provision to require that the inspection must
disclose no "unwarrantable" violations, whether or not the
violations found are substantively similar to the violation upon
which the order or notice was based. This is consistent with the
Committee's intention, and Section 105(c) (2) of S. 717 has
clarified this language to specifically state that the inspection
shall disclose no "unwarranted violations.
These decisions have considerably restored the unwarrantable
failure closure order as an effective and viable enforcement
sanction, and it is for that reason that S. 717 retains this
sanction in essentially the same form in Sec. 105(c).
Pattern of violations
Section 105(d) provides a new sanction which requires the
issuance of a withdrawal order to an operator who has an
established pattern of health and safety violations which are of
such a nature as could significantly and substantially contribute
to the cause and effect of mine health and safety hazards. The
need for such a provision was forcefully demonstrated during the
investigation by the Subcommittee on Labor of the Scotia mine
disaster which occurred in March 1976 in Eastern Kentucky. That
investigation showed that the Scotia mine, as well as other
mines, had an inspection history of recurrent violations, some of
which were tragically related to the disasters, which the
existing enforcement scheme was unable to address. The
Committee's intention is to provide an effective enforcement tool
to protect miners when the operator demonstrates his disregard
for the health and safety of miners through an established
pattern of violations.
Section 105(d)(1) provides that if the compliance record of the
operator demonstrates a pattern of violation of health or safety
standards which are of a "significant and substantial" nature, he
shall be given written notice that such pattern exists. This
notice advises the operator of the determination that a pattern
exists, and that if, upon any inspection within 90 days after the
issuance of notice, any violation of a standard which is also of
a "significant and substantial" nature is found, an order of
withdrawal will be issued.
The withdrawal order will remain in effect until it has been
determined that the violation which resulted in the order has
been abated.
Once a withdrawal order has been issued under section
105(d)(1), and a subsequent inspection of the mine discloses
another violation of a nature which could significantly and
substantially contribute to the cause and effect of a safety or
health hazard, a withdrawal order shall be issued under Section
105(d)(2), and such order shall remain in effect until the
violation which gave rise to the order has been abated.
Subsequent to this, the operator is subject to the issuance of
further 105(d)(2) withdrawal orders until an inspection of the
mine in its entirety discloses no violations of any safety and health
standards which could significantly and substantially contribute
to the cause and effect of a mine health or safety hazard.
(Section 105(d)(3)).
This sequence parallels the current unwarrantable failure
sequence of the Coal Act, and the unwarranted failure sequence of
Section 105(c) of the bill. The Committee believes that this
additional sequence and closure sanction is necessary to deal
with continuing violations of the Act's standards. The Committee
views the 105(d) (1) notice as indicating to both the mine
operator and the Secretary that there exists at that mine a
serious safety and health management problem, one which permits
continued violations of safety and health standards. The
existence of such a pattern, should signal to both the operator
and the Secretary that there is a need to restore the mine to
effective safe and healthful conditions and that the mere
abatement of violations as they are cited is insufficient.
It is the Committee's intention to grant the Secretary in
Section 105(d)(4) broad discretion in establishing criteria for
determining when a pattern of violations exists.
The Secretary's criteria will necessarily have to be broad
enough to encompass the varied mining activities within the Act's
coverage. The Committee intends that the criteria make clear
that a pattern may be established by violations of different
standards, as well as by violations of a particular standards.
Moreover, while the Committee considers that a pattern is more
than an isolated violation, pattern does not necessarily mean a
prescribed number of violations of predetermined standards nor
does it presuppose any element of intent or state of mind of the
operator. As experience with this provision increases, the
Secretary may find it necessary to modify the criteria, and the
Committee intends that the Secretary continually evaluate the
criteria for this purpose.
Comparison of Section 105(c) and 105(d)
The violation which sets into motion the enforcement sequence
under Section 105(c) must be of a "significant and substantial"
nature and must be the result of the operator's "unwarranted
failure" to comply. Under Section 105(d) there is no requirement
that the violations establishing the pattern of offense be a
result of the operator's "unwarranted failure", only that they be
of a "significant and substantial" nature. The meaning of
"significant and substantial" as established under Section 105(c)
should also apply in Section 105(d).
Section 105(c)(1) provides that a citation for a violation is
issued to the operator. Under Section 105(d)(1), the operator is
given a notice of the fact that the pattern of violations has
been established. The purpose of the notice is to advise the
operator that the next violation of a "significant and
substantial" nature will result in the issuance of an order.
Both subsections contain a 90 day period after the issuance of
the citation or notice within which the order must be covered to
establish the sequence.
The order under Section 105(c)(1) or 105(c)(2) is based upon a
determination that the violation was due to the operator's
"unwarranted failure" to comply. However, under Section
105(d)(1) or 105(d)(2) the order is issued if the violation was
of a "significant and substantial" nature, irrespective of whether the violation
was the result of an "unwarranted failure" to comply.
Both Sections 105(c) and 105(d) require an inspection of the
mine in its entirety in order to break the sequence of the
issuance of orders. However, Section 105(c) requires that the
inspection must reveal no "unwarranted" violations, and under
Section 105(d) the inspection must reveal no violations of a
"significant and substantial" nature.
It is the Committee's intention that the Secretary or his
authorized representative may have both enforcement tools
available, and that they can be used simultaneously if the
situation warrants, For example, where an operator has been given
a Section 105(c) citation and a Section 105(d) notice, and
thereafter an inspection discloses a violation of a "significant
and substantial" nature and which is also "unwarranted", the
operator will be issued both an order under Section 105(c) and an
order under Section 105(d). The requirements to break the
sequence in Sections 105(c) and 105(d) differ, and are intended
to be satisfied individually.
Enforcement Procedure
The procedure for enforcement of the Act is based upon the
procedure under the Coal Act. After an inspection, the Secretary
shall within a reasonable time serve the operator by certified
mail with the proposed penalty to be assessed for any violations.
The bill requires that the representative of miners at the mine
also be served with the penalty proposal. To promote fairness to
operators and miners and encourage improved mine safety and
health generally, such penalty proposals must be forwarded to the
operator and miner representative promptly. The Committee notes,
however, that there may be circumstances, although rare, when
prompt proposal of a penalty may not be possible, and the
Committee does not expect that the failure to propose a penalty
with promptness shall vitiate any proposed penalty proceeding.
Section 106(a) requires that unless a proposed penalty is
contested to the Commission within fifteen working days of
receipt by the operator, the Secretary's proposed penalty shall
become the final order of the Commission and shall not be
reviewable by any court. Such final orders shall be enforceable
or collectable in any court under the provisions of the Act. The
Committee believes that requiring that individuals who intend to
contest a proposed penalty assessment to do so promptly furthers
the objective of the Act. Penalty matters should be finally
determined as quickly as possible. The Committee notes that
contestants are required under this provision to notify the
Commission of their intention to contest penalty proposals within
fifteen days, and that the Commission would then subsequently
schedule such matters for hearing before an Administrative Law
Judge. For this reason, the Committee does not believe that
fifteen days is an unreasonably short period of time to expect a
contestant to so notify the Commission.
Section 106(b) indicates that the Secretary is to similarly
notify operators and miners' representatives when he believes
that an operator has failed to abate a violation within the
specified abatement period. In most cases, a failure to abate
closure order will have been issued pursuant to Section 105(b).
The notice of proposed penalty to operators in such cases shall
state that a 105(b) order has been issued and
the penalty provided by Section 111(b) of the Act shall also be
proposed. This penalty shall be proposed in addition to the
penalty for the underlying violation required by Section 111(a)
of the Act.
The time limitations for notifying the Commission of the intent
to contest penalty proposals set forth in Section 106(a) shall
apply in these cases. While there is no provision for temporary
or interim relief from abatement requirements generally, Section
106(b) does authorize the Commission, under certain circumstances
designed to assure that the health and safety of miners shall not
be threatened, to grant limited or temporary relief from further
abatement requirements once the initial abatement period has run
and a failure to abate closure order has been issued under
Section 105(b).
Protection of miners against discrimination
If our national mine safety and health program is to be truly
effective, miners will have to play an active part in the
enforcement of the Act. The Committee is cognizant that if
miners are to be encouraged to be active in matters of safety and
health, they must be protected against any possible
discrimination which they might suffer as a result of their
participation. The Committee is also aware that mining often
takes place in remote sections of the country, and in places
where work in the mines offers the only real employment
opportunity.
Section 106(c) of the bill prohibits any discrimination against
a miner for exercising any right under the Act. It should also
be noted that the class protected is expanded from the current
Coal Act. The prohibition against discrimination applies to
miners, applicants for employment, and the miners'
representatives. The Committee intends that the scope of the
protected activities be broadly interpreted by the Secretary, and
intends it to include not only the filing of complaints seeking
inspection under Section 104(f) or the participation in mine
inspections under Section 104(e), but also the refusal to work in
conditions which are believed to be unsafe or unhealthful and the
refusal to comply with orders which are violative of the Act or
any standard promulgated thereunder, or the participation by a
miner or his representative in any administrative and judicial
proceeding under the Act.
The legislation protects a miner from discrimination because he
"is the subject of medical evaluation and potential transfer
under a standard published pursuant to section 102." Under
section 102, standards promulgated by the Secretary must provide;
as appropriate, that where it is determined as a result of a
physical examination that a miner may suffer material impairment
of health or functional capacity by reason of his exposure to a
hazard covered by a standard, the miner shall be removed from
such exposure and reassigned; and that the miner transferred
shall continue to receive compensation for his work at no less
than the regular rate of pay for miners in the classification the
miner held prior to transfer. The Committee intends section
106(c) to bar, as discriminatory, the termination or laying off
of a miner in such circumstances, or his transfer to another
position with compensation at less than the regular rate of pay
for the classification held by the miner prior to transfer. The
relief provided under section 106(c) is in addition to that
provided under sections 105(a) and (b) and 106 for violations of
standards.
The listing of protected rights contained in section 106(c)(1)
is intended to be illustrative and not exclusive. The wording of
section 106(c) is broader than the counterpart language in
section 110 of the Coal Act and the Committee intends section
106(c) to be construed expansively to assure that miners will not
be inhibited in any way in exercising any rights afforded by the
legislation. This section is intended to give miners, their
representatives, and applicants, the right to refuse to work in
conditions they believe to be unsafe or unhealthful and to refuse
to comply if their employers order them to violate a safety and
health standard promulgated under the law. The Committee intends
to insure the continuing vitality of the various judicial
interpretations of section 110 of the Coal Act which are
consistent with the broad protections of the bill's provisions;
See, e.g., Phillips v. IBMA, 500 F. 2d 772; Munsey v. Morton, 507
F. 2d 1202. The Committee also intends to cover within the ambit
of this protection any discrimination against a miner which is
the result of the safety training provisions of Section 116 or
the enforcement of those provisions under Section 105(f).
Whenever protected activity is in any manner a contributing
factor to the retaliatory conduct, a finding of discrimination
should be made.
It is the Committee's intention to protect miners against not
only the common forms of discrimination, such as discharge,
suspension, demotion, reduction in benefits, vacation, bonuses
and rates of pay, or changes in pay and hours of work, but also
against the more subtle forms of interference, such as promises
of benefit or threats of reprisal. It should be emphasized that
the prohibition against discrimination applies not only to the
operator but to any other person directly or indirectly involved.
The bill requires the Secretary to rigorously enforce these
rights with discrimination complaints receiving high priority.
The bill provides that a miner may, within 60 days after a
violation occurs, file a complaint with the Secretary. While
this time limit is necessary to avoid stale claims being brought,
it should not be construed strictly where the filing of a
complaint is delayed under justifiable circumstances.
Circumstances which could warrant the extension of the time limit
would include a case where the miner within the 60 day period
brings the complaint to the attention of another agency or to his
employer, or the miner fails to meet the time limit because he is
misled as to or misunderstands his rights under the Act.
The Secretary must initiate his investigation within 15 days of
receipt of the complaint, and immediately file a complaint with
the Commission, if he determines that a violation has occurred.
The Secretary is also required under section 106(c) (3) to notify
the complainant within 90 days whether a violation has occurred.
It should be emphasized, however, that these time frames are not
intended to be jurisdictional. The failure to meet any of them
should not result in the dismissal of the discrimination
proceedings; the complainant should not be prejudiced because of
the failure of the Government to meet its time obligations.
The Secretary's investigation of matters alleged in the
complaint must commence within fifteen days of receipt of the
complaint. Upon determining that the complaint appears to have
merit, the Secretary shall seek an order of the Commission temporarily reinstating the
complaining miner pending final outcome of the investigation and
complaint. The Committee feels that this temporary reinstatement
is an essential protection for complaining miners who may not be
in the financial position to suffer even a short period of
unemployment or reduced income pending the resolution of the
discrimination complaint. To further expedite the handling of
these cases, the section requires that upon completion of the
investigation and determination that the provisions of this
section have been violated, the Secretary must immediately
petition the Commission for appropriate relief.
In proceedings before the Commission brought by the Secretary,
miner, applicants, or their representatives, may present
additional evidence in their own behalf. In addition, under
section 106(c) (3), if the Secretary determines that no violation
has occurred, the complainant has the right within 30 days of
receipt of the Secretary's determination, to file an action on
his own behalf before the Commission. If the Secretary has
provided a procedure for the miner to appeal a negative
determination within the Department of Labor, the thirty-day
period will not commence until such appeal procedures have been
exhausted. Further, as mentioned above in connection with the
time for filing complaints, this thirty-day limitation may be
waived by the court in appropriate circumstances for excusable
failure to meet the requirement. The Committee also intends to
afford a complainant the right to institute an action on his own
behalf before the Commission if the Secretary, in the exercise of
his discretion, settles a case brought under section 106(c) (2)
on terms unsatisfactory to the complainant.
It is the Committee's intention that the Secretary propose, and
that the Commission require, all relief that is necessary to make
the complaining party whole and to remove the deleterious effects
of the discriminatory conduct including, but not limited to
reinstatement with full seniority rights, backpay with interest,
and recompense for any special damages sustained as a result of
the discrimination. The specified relief is only illustrative.
Thus, for example, where appropriate, the Commission should issue
broad cease and desist orders and include requirements for the
posting of notices by the operator.
Procedure to counteract dangerous conditions
Section 108(a) provides that, if upon any inspection or
investigation, the Secretary's representative finds an imminent
danger exists, he shall determine the affected area and issue a
withdrawal order barring all persons except those referred to in
section 105(b) from such area. The issuance of an order under
this subsection shall not preclude the issuance of a citation
under section 105 or the proposing of a penalty under section
111. A section 108 order shall be issued whenever an inspector
"finds that conditions or practices in such mine are such that an
imminent danger exists . . ," and the withdrawal order shall not
be lifted until "the conditions and practices which caused such
imminent danger no longer exist." If miners are to receive the
continuing protection that Congress intends inspectors and
operators must look to the underlying conditions and practices
causing an imminent danger. Section 108(a) thus requires the
operator to correct the root causes as well as the symptoms of
mine health and safety problems which give rise to the order.
The Committee disavows any notion that imminent danger can be
defined in terms of a percentage of probability that an accident
will happen; rather the concept of imminent danger requires an
examination of the potential of the risk to cause serious
physical harm at any time. It is the Committee's view that the
authority under this section is essential to the protection of
miners and should be construed expansively by inspectors and the
Commission. Since we are dealing with situations where there is
an immediate danger of death or serious physical harm. The
Committee intends that the Act give the necessary authority for
the taking of action to remove miners from risk. The Committee
points out that, although imminent danger closure orders are
subject to review by the Commission (as are all closure orders),
Section 108(e) provides that no temporary relief may be granted
by the Commission from the issuance of such an order. This
limitation on the review authority of the Commission in this
respect does not suggest a limitation on the inspector's
authority to issue such orders, but rather is consistent with the
importance of the imminent danger order as a means of protecting
miners.
The imminent danger withdrawal order is designed to afford
miners immediate protection in those situations where a condition
or practice in a mine could reasonably be expected to cause death
or serious physical harm before such condition or practice can be
abated. Since the danger is imminent, the Committee recognizes
that the withdrawal order should specify that miners must be
withdrawn immediately.
Section 108(c) requires findings and orders issued under
section 108 (a) to contain a detailed description of the
conditions which constitute an imminent danger, and that all
orders issued under this section contain a description of the
area of the mine throughout which persons must be withdrawn. The
Committee recognizes that the purpose of the detailed description
of conditions is to adequately apprise the operator of the
problem involved so that he may take appropriate steps to correct
the condition or practice. The Committee does not intend that
this requirement be a procedural pitfall for the inspector, thus
should it not be construed to invalidate orders issued under this
section.
Section 108(d) requires that each finding made and order issued
under this section be in writing, signed by the person making
them, and given promptly to the affected operator. Any order
issued pursuant to section 108(a) or (b) may be modified or
terminated by the Secretary's representative. Any order issued
under sections 108(a) or (b) shall remain in effect until
terminated by the Secretary or modified or vacated by the
Commission or the courts pursuant to sections 107(a) or 108(e).
Section 108(e) provides the mechanism by which any operator
notified of an order under this section or any miner or
representative notified of the issuance, modification, or
termination of such an order may apply to the Commission for
reinstatement, modification or vacation of that order and
requires that the Commission take appropriate action to expedite
proceedings.
lnjunctions
Section 109(a) (1) enables the Secretary to seek court
assistance to prevent activities by operators or other persons
which interfere with, hinder, or delay the Secretary or his authorized representative
in the performance of their duties under the Act. Section 109(a)
(2) creates a new enforcement tool: an injunctive-type remedy to
close mines where there have been habitual violations. This
provision is designed to enable the Secretary to deal with the
habitual or chronic violator of the Act; the operator who has
demonstrated over a period of time that other available
enforcement tools will not encourage his compliance with the
spirit and the letter of the mine safety and health law.
The history of chronic violations of the standards under the
1969 Coal Act, already alluded to in this report, caused various
members of the joint Senate-House panel investigating the Scotia
disaster to inquire about why the mine could not be closed as a
result of the habitual violations. The narrow reading of the
"unwarrantable failure" sanction made that possibility
unavailable, and MESA and Department of the Interior witnesses
before the joint panel testified that there were no statutory
provisions available which could justify a closure order for such
a situation.
Section 109 of the bill provides a new enforcement sanction
which is designed to meet this situation. The section provides
that the Secretary may seek in the District Court appropriate
relief, including injunctive relief, where the Secretary believes
that the operator of a mine "is engaged in a pattern of violation
of the health and safety standards of this Act which in the
judgment of the Secretary constitutes a continuing hazard to the
health or safety of miners." Section 109(b) provides that the
Court shall fashion an appropriate remedy for such situations,
including "such assurance or affirmative steps as it deems
necessary to assure itself that the protection afforded to miners
under this Act shall be provided by the operator."
The current scheme for enforcing the mine safety laws enables
MESA to eliminate the dangerous conditions which are observed in
the course of inspections, either by requiring the abatement of
the violation or, where warranted, by withdrawing miners from the
dangerous situation. Having taken these steps, however, there
are no current enforcement sanctions to insure continued
compliance with the Act's requirements by the operator after the
abatement of the actual violations observed. The assessment and
collection of civil penalties is intended to encourage a state of
constant compliance with the Act on the part of operators, but as
noted, the penalty system has been solely deficient in meeting
this objective.
The new provision of Section 109 of the bill is designed to
deal with this gap in enforcement. It is in essence, a means by
which the Secretary con obtain the correction of violations which
habitually occur when the inspector is not present in the mine.
The provision enables the court to infer from the repeated
discovery of violations at a mine that the operator of that mine
probably regularly permits such violations to occur at times when
the inspector is not present at the mine. When the court can
make this inference and can find that such constitutes a
continuing hazard to the miners' health and safety, the provision
gives the court the authority to fashion such remedy as it deems
fit to insure that such situation does not continue to occur at
that mine.
It is expected that the Secretary shall be able to rely on the
violation history of a mine, as demonstrated by previous
inspections, and such other evidence as the Secretary shall have to show the suspected
tendency of the operator in seeking relief under the section.
MESA has been particularly deficient in the past in using such
violation histories as a means of making inspections more
responsive to the demonstrated problems at the mine inspected.
It is the Committee's expectation that this provision will
encourage the accumulation and routine use of violation history
as an aid to inspectors in routine mine inspection.
The Committee notes that the injunctive authority for patterns
and practices of violations is similar to the pattern of
violation closure order sequence provided in section 105(d). It
is the Committee's intent that this injunctive remedy provide
further flexibility to the Secretary to deal with habitual
violators of the Act beyond the remedy available under Section
105(d). For example, in an injunction case, the Court could
exercise its authority to cover a wide range of affirmative
corrective measures, and the refusal to comply with the order of
the Court could be punishable as criminal or civil contempt.
Judicial review of Commission actions
The bill provides procedures for review or enforcement of final
orders of the Commission, both with respect to withdrawal orders
and penalty assessments by the United States Circuit Courts of
Appeals as will be explained more fully, infra, such reviews or
enforcement actions are to be record reviews, and the
determinations of the Commission shall be affirmed by the court
if supported by substantial evidence on the record as a whole.
Consistent with the Committee's intention that penalty litigation
move with no undue delay, interested parties must seek review of
Commission orders within thirty days of such orders, and if no
petition for review is filed within that time, the Secretary
should file an action for collection in the District Court order
section 111(k), or may seek enforcement of the Commission's
order. The Secretary may also seek review of the final orders of
the Commission.
Courts may grant temporary relief from any final order of the
Commission in circumstances where the temporary relief will not
adversely affect the health and safety of miners. The Committee
firmly believes that assuring the safety and health of miners
shall be the primary consideration in connection with any
proceeding for temporary relief from a closure order or abatement
requirement.
Penalties
Civil penalties are not a part of the enforcement scheme of the
Metal Act, but they have been part of the enforcement of the Coal
Act since its enactment in 1969. The purpose of such civil
penalties, of course, is not to raise revenues for the federal
treasury, but rather, is a recognition that:
[s]ince 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 provision for assessment of civil penalties
is] 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.
(S. Rep. 91411, Federal Coal Mine Health and Safety Act of 1969,
91st Cong. 1st Session, p. 39.) In short, the purpose of a civil
penalty is to induce those officials responsible for the
operation of a mine to comply with the Act and its standards.
The Committee specifically rejects the suggestion that the
imposition of civil penalties be discretionary rather than
mandatory. A cursory glance at the relative improvements in
rates of fatal and serious nonfatal occurrences in the coal
industry (where civil penalties have been mandatory since 1970)
versus the non-coal segment of the industry (where there
currently is no provision for civil penalties, mandatory or
permissive) (See Table 1, supra) suggests clearly that even if
the civil penalty system under the Coal Act has not been totally
effective in implementation, the presence of the civil penalty
sanction has resulted in substantial improvements which are not
noted in the non-coal segment of the industry under the Metal
Act.
For this reason the Committee has adopted the civil penalties
as they exist in the current Coal Act.
To be successful in the objective of including effective and
meaningful compliance, a penalty should be of an amount which is
sufficient to make it more economical for a operator to comply
with the Act's requirements than it is to pay the penalties
assessed and continue to operate while not in compliance.
In overseeing the enforcement of the Coal Act the Committee has
found that civil penalty assessments are generally too low, and
when combined with the difficulties being encountered in
collection of assessed penalties (to be discussed, infra), the
effect of the current enforcement is to eliminate to a
considerable extent, the inducement to comply with the Act or the
standards, which was the intention of the civil penalty system.
Investigation of the Scotia mine disaster in Eastern Kentucky
provides but one case in point. On March 8 and 11, 1976, two
explosions of methane gas in the Scotia mine resulted in the
deaths of twenty-three (23) miners and three (3) federal mine
inspectors. Methane is a colorless, odorless, tasteless gas which
is liberated or escapes naturally in certain mines. (Although
methane liberation is most commonly associated with coal mining,
it is present in connection with the mining of other minerals
also, trona, for example.) Methane is explosive when it
constitutes between 5 percent and 15 percent of the atmosphere of
a mine, and when, while in that concentration range, it is
ignited by some ignition source. The pressure of methane in a
mine is controlled by adequate ventilation; and thus, ventilation
of a mine is important not only to provide fresh air to miners,
and to control dust accumulation, but also to sweep away
liberated methane before it can reach the range where the gas
could become explosive. In terms then of the safety of miners,
the requirement that a mine be adequately ventilated becomes one
of the more important safety standards under the Coal Act.
After the Scotia explosions, the Subcommittee on Labor
investigated the history of the enforcement of the Coal Act at
the Scotia mine, and found a rather disturbing recurrence of
citations for violations of the ventilation requirements in the
mine. In the period from January 3, 1974 until the date of the
first explosion, a total of 62 violations of the ventilation standards were noted. This large
number of the same type of violation suggests that the penalty
system, as applied at this particular mine, was in sufficient to
encourage mine management to comply with the law's requirements.
The results of that noncompliance turned out to be tragic. The
following table indicates the frequency of violation of the same
standard, and the penalties assessed for those violations at the
Scotia Mine:
TABLE 3
_________________________________________________________________
Date of CFR Type of
notice section inspec Description Assessed Collected
or order violated tion of violation penalty penalty
_________________________________________________________________
Jan. 27, 75.301 Spot Insufficient air $450 $150
1975 safety reaching last open
crosscut separating
intake air from
return air. 0.8 percent
methane detected.
Feb. 25, 75.301 ...do... Insufficient air 135 99
1976 passing through
last open crosscut.
Mar. 3, 75. 301 ...do.... Insufficient venti 250 130
1975 lation in last open
crosscut. 10,960 ft.3
of air per minute.
Mar. 13, 75.301 ...do... Insufficient venti 115 102
1975 lation of 4,480
ft.3 of air per minute
passing through last
open crosscut.
Mar. 19, 75. 301 ...do... Insufficient venti 300 135
1975 lation in the last
open crosscut.
Apr. 17, 75.301 ...do... Insufficient air 250 148
1975 passing through last
open crosscut.
Apr. 24, 75.301 Spot ......do........... 250 148
1975 health
and
safety.
May 27, 75.301 Spot Insufficient air 90 74
1975 safety passing through
the last open
crosscut. 0.3
percent methane
detected.
_________________________________________________________________
That the amount assessed and collected for such violations
actually decreased rather than increased raises serious questions
in the Committee's mind as to whether MESA was properly following
the statutory criteria for the assessment of penalties. The Coal
Act provides the criteria by which the amount of a proposed
penalty is to be determined, to wit:
the operator's history of previous violations, the
appropriateness of such penalty to the size of the
business the operator charged, whether the operator
was negligent, the effect on the operators ability
to continue in business, the gravity of the violation,
and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification
of a violation (Sec. 109(a)(1) of the Coal Act.)
Analysis of the average assessment per violation throughout the
industry for the period January, 1974 to April, 1976 indicates a
similar trend to decreasing assessment amounts.
CHART A
Average assessment per violation processed (all types)
by MESA's Assessment office from January '74 thru April '76
SOURCE: Mesa's Monthly Activity
Report Assessment Office
Note: The average value per violation could be affected by a change in
mix (the proportion of serious v. non-serious violations), as well as an actual
increase or decrease in the average value for each type of violation.
The Scotia history is not atypical. Similar review of the
inspection and penalty assessment and collections at Buffalo
Creek showed that prior to the disaster, the operator had been
assessed penalties exceeding $1.5 million, not one cent of which
had been paid by the date of the flood. Committee analysis of
inspections and assessments at Blacksville prior to the disaster
showed a similar trend: 178 of 379 violations at that mine were
of the electrical or trolley wire standards, and of $76,330
assessed, only $31,090 had been paid.
Section 111(j) of S. 717 reduces the number of criteria upon
which the amount of a penalty is to be based from the six in the
existing Coal Act to four, to wit: gravity of violation, good
faith of the person charged, the history of violations of the
operator, and the appropriateness of the penalty to the size of
the business involved. It is the intention of the Committee
that, by thus reducing the criteria to be judged, the Commission,
in assessing penalties, will pay more credence to the criteria
remaining. In evaluating the history of the operator's violations
in assessing penalties, it is the intent of the Committee that
repeated violations of the same standard, particularly within a
matter of a few inspections, should result in the substantial
increase in the amount of the penalty to be assessed. Seven or
eight violations of the same standard within a period of only a
few months should result, under the statutory criteria, in an
assessment of a penalty several times greater than the penalty
assessed for the first such violation.
To be effective and to induce compliance, civil
penalties, once proposed, must be assessed and collected with
reasonable promptness and efficiency. To achieve this objective
S. 717 contains a number of significant departures from the
present practice under the Coal Act.
The small amount of penalty collections under the current Coal
Act compared to the amount of penalties assessed, is the result
of a number of deficiencies which have complicated the
administration of the Act by the Department of the Interior and
MESA.
A brief discussion of the current procedures by which
violations are assessed and penalties collected is warranted.
The inspector forwards a copy of the violation notice or order to
the MESA assessment office. That office collects a number of
such violations into a case, and assesses a penalty. The
operator is informed of the amount of the penalty. The operator
may pay the penalty assessed, or is given the opportunity to
negotiate a settlement with the assessment officer. When the
penalty is not paid, or no compromise is reached, the Office of
the Solicitor of the Interior files a Petition for Civil Penalty
Assessment with the Office of Hearings and Appeals of the
Department, of the Interior, and the case is set for trial before
an Administrative Law Judge. The operator can, at any time prior
to the final decision of the Administrative Law Judge, negotiate
a settlement with the Solicitor. After the Administrative Law
Judge enters a decision, a review of that decision may be had by
the Board of Mine Operations Appeals of the Interior Department
which reviews are commonly de novo examinations of questions of
fact. The operator is not obligated to pay the penalty as
determined by the final order of the Secretary, and can have a de
novo trial of the case in a United States District Court.
This lengthy, and often repetitive procedure encourages
delaying the ultimate payment of civil penalties. In addition,
the opportunity to compromise assessed penalties are numerous.
Clearly, so long a delay in assessment and collection of civil
penalties does not encourage operator compliance with the Act and
its standards. The delay in the assessment and collection at
Scotia Mine serves as a case study of the deficiencies in
administration of the civil penalty program. Table 2, supra,
shows the delays in assessment and collection of civil penalties
for those penalties assessed at Scotia.
In addition to the delay in assessing and collecting penalties,
another factor which reduces the effectiveness of the civil
penalty as an enforcement tool under the Coal Act is the
compromising of the amounts of penalties actually paid. In its
investigation of the penalty collection system under the Coal
Act, the Committee learned that to a great extent the
compromising of assessed penalties does not come under public
scrutiny. Negotiations between operators and Conference Officers
of MESA are not on the record. Even after a Petition for Civil
Penalty Assessment has been filed by the Solicitor with the
Office of Hearings and Appeals, settlement efforts between the
operator and the Solicitor are not on the record, and a
settlement need not be approved by the Administrative Law Judge.
Similarly, there is considerable opportunity for off the record
settlement negotiations with representatives of the Department of
Justice while cases are pending in the district courts.
While the reduction of litigation and collection expenses may
be a reason for the compromise of assessed penalties, the
Committee strongly feels that since the penalty system is not for
the purpose of raising revenues for the Government, and is indeed
for the purpose of encouraging operator compliance with the Act's
requirements, the need to save litigation and collection expenses
should play no role in determining settlement amounts. The Committee strongly feels
that the purpose of civil penalties, convincing operators to
comply with the Act's requirements, is best served when the
process by which these penalties are assessed and collected is
carried out in public, where miners and their representatives, as
well as the Congress and other interested parties, can fully
observe the process.
To remedy this situation, Section 111(1) provides that a
penalty once proposed and contested before the Commission may not
de compromised except with the approval of the Commission.
Similarly, under Section 111(1) a penalty assessment which has
become the final order of the Commission may not be compromised
except with the approval of the Court. By imposing these
requirements, the Committee intends to assure that the abuses
involved in the unwarranted lowering of penalties as a result of
off the record negotiations are avoided. It is intended that the
Commission and the Courts will assure that the public interest is
adequately protected before approval of any reduction in
penalties.
The Committee recognizes that settlement of penalties often
serves a valid enforcement purpose. The provisions of Section
111(1) only require that such settlements be a matter of public
record and approved by the Commission or Court.
An additional difficulty encountered in connection with the
civil penalty assessment and collection system under the current
Coal Act is the provision of Section 109(a)(4) of that Act. This
section provides that when an operator fails to pay a civil
penalty within the time prescribed for such payment, the
Secretary shall seek enforcement of the penalty in the District
Court; and further provides:
[t]he court shall have jurisdiction to enter a judgment
enforcing, modifying, and enforcing as so modified, or
setting aside in whole or in part the order and decision
of the Secretary or it may remand the proceedings to the
Secretary for such further action as it may direct. The
Court shall consider de novo all relevant issues, except
issues of fact which were or could have been litigated in
review proceedings before a court of appeals under section
106 of this Act, and upon the request of the respondent,
such issues of fact which are in dispute shall be submitted
to a jury.
This right to a de novo hearing before a jury in the District
Court has had the effect of encouraging operators to require
enforcement of civil penalties in the district courts, thus
delaying still further the actual payment of the penalties
assessed. The resultant backlog of penalty cases has flooded the
district courts in the coal mining areas of the country, and the
delay engendered has seriously hampered the collection of civil
penalties.
S. 717 provides a number of means by which the method of
collecting penalties is streamlined. Section 111(j) provides
that the civil penalties are to be assessed by the Mine Safety
and Health Review Commission rather than by the Secretary as
prevails under the Coal Act (Sec. 109(a)(3)). Under the
procedures of Sec. 106(a) of S. 777, an operator must, within 15
working days after receipt of notification of civil penalty
assessment, notify the Secretary of his intention to contest the
assessed penalty. Lack of notification would result in the
proposed assessment becoming the final order of the Commission.
Where a penalty is contested the normal proceedings for the
hearing of cases by the Commission controls. A final order of
the Commission can be reviewed by the Circuit Court under the
provisions of Sec. 107(a), if within 30 days after the entering
of the Commission's final order, the operator files a request for
review with the Circuit Court. No time frames exist in the
current law. In all cases, the Commission's findings of fact are
conclusive upon the Court if supported by substantial evidence on
the record. Contentions not raised before the Commission cannot
be raised for the first time before the Court. The Secretary,
under the provisions of Sec. 107(b), may automatically obtain a
decree of the court of appeals enforcing the final order of the
Commission.
In order to facilitate the collection of civil penalties under
this Act, the Secretary has authority both under Section 109(a)
and 111(k) to obtain collection of penalties by court decree. In
any such action in the District Court, there is no right to de
novo review of the Commission's finding of violation and
assessment of penalty.
The Committee notes that the administrative assessment of civil
penalties without provision for a jury trial at any stage of the
proceeding has been upheld as constitutional by the United States
Supreme Court in Atlas Roofing Co. v. Secretary of Labor, U.S.
, 45 U.S.L.W. 4312 (March 23, 1977).
To further facilitate the prompt collection of a final order of
assessment, the Act provides for the imposition of interest at an
annual rate of eight percent to begin thirty days from the final
order of the Secretary, Commission or the Court, as is
appropriate. The Committee feels the imposition of interest will
further discourage undue delay in payment.
Sec. 113(b) of S. 717 authorizes the Solicitor of Labor to
represent the Secretary in all civil litigation except litigation
before the United States Supreme Court. The Committee believes
that keeping all enforcement responsibilities, including the
litigation responsibility, within the same department of the
Government, furthers the goal of effective enforcement.
While the bill assigns this litigation responsibility to the
Solicitor of Labor, it is the Committee's intent that in carrying
out these responsibilities, the Solicitor shall coordinate with
the Attorney General in order to resolve situations where two or
more agencies of the Federal Government may have varying
positions with respect to issues in litigation. Similarly such
coordination would be important where the issue is the
constitutionality of Federal laws, and it is the Committee's
intent that the Solicitor of Labor shall make appropriate
arrangements with the Attorney General with respect to the
participation of the latter in litigation involving such matters.
Miners entitlements resulting from closure orders
As the Committee has consistently noted, the primary objective
of this Act is to assure the maximum safety and health of miners.
For this reason, the bill provides at Section 112 that miners who
are withdrawn from a mine because of the issuance of a withdrawal
order shall receive certain compensation during periods of their
withdrawal. This provision, drawn from the Coal Act, is not
intended to be punitive, but recognizes that miners should not
lose pay because of the operator's violations, or because of an imminent danger
which was totally outside their control. It is therefore a
remedial provision which also furnishes added incentive for the
operator to comply with the law. This provision will also remove
any possible inhibition on the inspector in the issuance of
closure orders.
Administration
The bill creates a new Assistant Secretary of Labor for Mine
Safety and Health, to provide specialized treatment and
enforcement of the mine safety and health amendments.
A separate enforcement structure with separate attention to
mine safety and health problems is mandated by the very high
fatality and injury rates for the industry. At the same time,
issues which have arisen in the past, because of overlapping
jurisdiction between Interior and Labor, particularly in the area
of milling of minerals, will be easier to resolve with the
establishment of this new Assistant Secretary.
Because of the increased enforcement and administrative
responsibilities under the bill, including increased inspection,
enforcement, legal services, and administrative responsibilities,
it is anticipated that additional resources may be needed by the
Department for personnel and support services. Such resources
can be provided through the normal appropriation process as
becomes necessary.
The Mine Safety and Health Review Commission
The bill provides a right to contest orders and proposed
penalties before the Commission.
The Committee realizes that alternatives to the establishment
of a new independent reviewing body exist. For example, under
the present Coal Act, review of contested matters is an internal
function of the Secretary of the Interior who has established a
Board of Mine Operations Appeals to separate his prosecutorial
and investigative functions from his adjudicatory functions.
The Committee also recognizes that there are organizational and
administrative justifications for avoiding the establishment of
new administrative agencies. However, the Committee believes
that the considerations favoring a completely independent
adjudicatory authority outweigh these arguments.
The Committee believes that an independent Commission is
essential to provide administrative adjudication which preserves
due process and instills much more confidence in the program.
The Commission is to have five members, who shall be selected
from among those who by reason of training, education, or
experience are qualified for consideration. This qualification
is not intended to limit the selection of members to technicians.
It is the Committee's expectation that non-technicians with the
requisite administrative experience or persons whose
qualifications are based upon either formal training or practical
experience in mine safety and health or related matters would
qualify for appointment. The Chairman and members of the
Commission are to be appointed by the President, subject to
confirmation by the Senate.
The Commission is authorized to act in panels of three members,
with a majority of each panel sufficient to decide a matter.
This organization is patterned after that of the National Labor
Relations Board and is intended to give the Commission a more flexible
administrative organization in order to facilitate the efficient
processing of cases before the Commission. In this regard, the
Committee strongly believes that it is imperative that the
Commission strenuously avoid unnecessary delay in acting upon
cases.
Procedures
Under the bill, review is sought by notifying the Secretary of
an intention to contest an order, notice, or proposed penalty
within 15 days after the operator's receipt of the Secretary's
order, notice, or proposed penalty. Failure to contest within 15
days, as previously indicated, will result in the Secretary's
order, notice, or proposed penalty being deemed a final order of
the Commission not subject to review by any court or agency.
The bill provides that initial hearings of the Commission shall
be before an Administrative Law Judge. The bill makes provision
for transfer to the Commission of the Administrative Law Judges
of the Department of the Interior who are experienced in matters
of mine safety and health. Hearings before Administrative Law
Judges shall be of record. The Commission and its Law Judges are
vested with broad authority to compel the attendance of witnesses
and testimony and the production of evidence, at any stage of the
proceedings, including, but not limited to, prehearing deposition
and discovery proceedings, as well as to the hearing itself.
Affected miners or their representatives are to be afforded an
opportunity to participate in proceedings before the Commission
and its Administrative Law Judges. The Committee intends that
the Commission shall, insofar as is consistent with provisions of
the Act, develop procedures to facilitate the participation in
its proceedings of parties appearing pro se or not represented by
counsel.
The decision of an Administrative Law Judge becomes a final
decision of the Commission 40 days after its issuance, unless,
within such time, the Commission has directed review of the
decision. Petitions for review of an Administrative Law Judge's
decision must be filed within 30 days after issuance of such
decision. Review of Administrative Law Judge decisions is
discretionary with the Commission and may be granted on the
grounds that a finding or conclusion of the Judge is not
supported by substantial evidence, that the Judge's necessary
legal conclusion was erroneous, that a Judge's decision is
contrary to law or regulations or decisions of the Commission,
that a substantial question of law, policy, or discretion exists,
or that a prejudicial error of procedure was committed. The bill
further provides that the Commission may direct review of a case
on its own initiative by vote of two Commissioners, but limited
to the grounds that: (1) the decision of the Judge is contrary
to law or Commission policy, or (2) involves a novel question.
Such limitations on the right of the Commission to direct review
on its own initiative shall also apply to issues not raised by a
petition for discretionary review. Thus, where review has been
granted upon the petition of an aggrieved or adversely affected
person, the Commission shall not consider issues which have not
been raised in the petition, except on affirmative vote of two
Commissioners and on the grounds for review on its own accord
contained in section 114(d)(2)(B).
A decision of the Administrative Law Judge which is not
reviewed by the Commission becomes the final order of the
Commission and is reviewable or enforceable in the United States
Circuit Court for the circuit in which the operator is located or
the District of Columbia Circuit.
Decisions of the Commission shall be affirmed if based upon
substantial evidence of the record as a whole. See, Universal
Camera Corp. v. NLRB, 340 U.S. 474 (1950). Since the Secretary
of Labor is charged with responsibility for implementing this
Act, it is the intention of the Committee, consistent with
generally accepted precedent, that the Secretary's
interpretations of the law and regulations shall be given weight
by both the Commission and the courts.
The Committee believes that the provision of section 114(d) (2)
that matters not raised before an Administrative Law Judge may
not be raised before the Commission (except for good cause shown)
and the provision of section 107(a) that objections not raised
before the Commission cannot be raised before a reviewing court
are consistent with sound procedure and do not deny essential due
process. The Committee notes that fairness is also protected by
provisions which would permit remanding of cases for further
fact finding where warranted. It is the Committee's intention
that the Commission and Administrative Law Judges permit parties
every reasonable opportunity to adequately develop the record
within these constraints and consistent with its duty to resolve
matters under dispute in an expeditious manner.
New mandatory safety and health training standard
In testimony before the Labor Subcommittee, miners, formerly
employed at the Scotia mine, testified that they had not received
any safety training prior to being sent underground to work in
the mine. These miners testified that they did not even receive
rudimentary training in the use of the self-rescuer device which
had been provided to them. This despite the provisions of the
Coal Act that all miners be instructed in the use of the
self-rescuer. (Sec. 317(n)). It was only after those hearings
that MESA published proposed regulations providing minimum safety
training requirements for coal miners.
The Committee's investigation of the Sunshine and Blacksville
disasters disclosed similar situations. At Sunshine, 91 miners
died because they were unable to escape poisonous carbon
monoxide fumes which were the byproduct of a fire in the mine.
The miners were untrained in the use of self-rescuers which had
been provided by mine management, and had not been adequately
trained in the secondary escape routes. The miner who was
operating the manhoist by which miners were being evacuated from
the lower levels of the mine finally succumbed to the smoke and
fumes, preventing further evacuation of miners, because he did
not know how to operate the self-rescuer device which he had with
him at the time he died.
At Blacksville, a fire erupted in connection with the moving of
a piece of mining equipment. The miners on the scene had not
been trained in how to fight fires in the mine and how to react
to such a situation. Their confusion in the initial minutes
after the fire started resulted in the fire quickly spreading out
of control.
The Committee considers the presence of miners in a dangerous
mine environment who have not had even rudimentary training in
self-preservation and safety practices inexcusable; and in the
fact that regulations requiring said training have not yet been
promulgated is a serious failure in mine safety administration.
In recognition of the fact that health and safety training of
miners is essential to achieving the goals of this bill and in
recognition of the increasing number of new miners being
employed in our expanding mining industry, the Committee has
included provisions requiring the Secretary to promulgate safety
and health training regulations requiring operators to have
approved training programs.
Section 116(b) requires that the training given to miners be
given during normal working hours, that miners shall be paid at
the normal rate of pay for attending such training, and that if
the training is given away from the normal work place, miners are
to be compensated for the expenses attendant to taking such
training.
Section 116(c) requires that upon the completion of each
training program the operator shall certify that the miner
received that training, and such certification shall be on a form
approved by the Secretary, which shall conspicuously indicate
that a false certification of training shall be punishable under
section 111 (a) and (g) of the Act. The section further requires
the operator to maintain at the mine, available for inspection, a
copy of this certification, and the operator shall give a copy of
the certificate to each miner upon the completion of training,
and when the miner leaves the operator's employ.
It is not the Committee's contemplation that the Secretary be
in the business of training miners. This is clearly the
responsibility of the operator, as long as such training meets
the Act's minimum requirements.
The bill provides a special enforcement sanction in connection
with the safety training requirement. Section 105(f) of the
bill authorizes an inspector to order removed from a mine any
miner found to be at work who has not received the requisite
training under the operator's training plan, and to require that
such miner not be permitted to return until the appropriate
training had been provided. A miner so removed is to continue to
receive his compensation until he is finally trained and returned
to the mine.
The Committee has noted that construction workers are often
faced with safety and health hazards which may be different than
those which confront miners. Accordingly, Section 116(d) of the
bill requires the Secretary to promulgate safety and health
training standards for mine construction workers. It is clearly
not the intent of this provision that construction workers be
less trained in safety and health matters than other miners. But
it is the Committee's belief that it may require different
training procedures to adequately inform construction workers of
the hazards which they may confront. Further, the Secretary's
regulations concerning safety and health training for
construction workers may give appropriate consideration to
safety and health training which has been given to mine
construction workers elsewhere as long as the Secretary is
satisfied that such training realistically deals with hazards
that such workers are likely to confront in the mines.
The Committee is aware that MESA has prepared mandatory
training regulations for coal miners and that final rules are
likely to be promulgated before the effective date of this Act. To the extent
that the Secretary of the Interior's training regulations
applicable to coal mines fulfill the requirements of this
provision, they should continue in effect. If such standards
need amendment to comply with the statutory requirements of this
bill, only those deficient areas need be amended.
The Committee recognizes that some States, namely West Virginia
and Kentucky, provide pre-employment training to individuals who
may apply for jobs as miners. Such training may meet the
requirements of the standards promulgated by the Secretary, and,
assuming that such training is of sufficient quality, the
operator should not be required to duplicate State provided
training.
The Committee believes that the ready availability of mine
rescue capability in the event of an accident is a vital
protection to miners. Accordingly, Section 116(e) requires that
mine rescue teams be available for rescue work at each
underground mine, and that operators may make cooperative
arrangements to provide for the availability of mine rescue
teams.
Respirable Dust
Section 318 of the Federal Coal Mine Health and Safety Act of
1969 is amended by deleting subsection (k) which defines
respirable dust in terms of dust particulates 5 microns or less
in size. The new definition in subsection (e) defines respirable
dust in terms of average concentration, a method of determining
the amount of dust in a mine atmosphere on the basis of weight.
Since all devices approved by the Secretary and the Secretary of
Health, Education and Welfare measure respirable dust on the
basis of weight, other than particle size, this amendment
is necessary to make the definition of respirable dust conform to
the approved method of sampling.
TRANSFER MATTERS
General
The bill transfers all duties under the mine safety and health
laws to the Department of Labor except as otherwise expressly
provided. Under the bill, transfer of duties from the Department
of the Interior to the Department of Labor will take place
effective July 1, 1978. The Committee intends that upon
enactment, both Departments will promptly commence planning for
an orderly transition of responsibilities.
Personnel and Resources
Section 301(c) of the bill provides for the transfer to the
Department of Labor of unexpended appropriations, personnel,
property, records, obligations, and commitments.
The Committee intends that section 301(c) is to be liberally
construed in order to assure that the transfer of personnel,
resources and funds will be completed. Personnel resources, and
funds transferred shall include, but not be limited to attorneys
servicing the transferred functions, persons involved with
standard-setting, and management and administrative support
resources devoted to the transferred functions.
Personnel who are transferred to the Department of Labor are to
be transferred without reduction in classification or
compensation for a period of one year after such transfer. The
Secretary retains authority to reassign personnel pursuant to
section 301(c)(1) of the bill. In connection with such transfers
and reassignments, the Committee intends that relocation of
personnel and reductions in force should be, to the extent
possible, minimized. It is the Committee's intention that the
service of the Department of the Interior personnel transferred
to the Department of Labor under this bill will be counted as
Agency service within the Department of Labor for purposes of
seniority, salary retention, and other benefits under the Civil
Service laws, regulations and policies which are dependent upon
length of service with an Agency.
It should be noted that transfer of enforcement functions to
the Department of Labor will automatically give mine inspectors
the protection of section 1114 of title 18 of the United States
Code, which section provides protection to certain officers and
employees of the United States.
Preservation of Established Rules and Pending Proceedings
In order to further assure a smooth transfer, the bill
provides, as is customary, that all orders, decisions, rules,
regulations, permits, contracts, certificates, licenses and
privileges presently in effect and pertaining to transferred
functions shall continue in effect until modified or set aside by
authorized officials, the courts, or by operation of law.
Likewise, proceedings pertaining to transferred functions, which
proceedings are pending at the effective date of transfer shall
not be affected, except that such proceedings, to the extent
related to transferred functions, shall be continued before the
Secretary of Labor, or the Review Commission as if the bill had
not been enacted. This provision is also intended to permit
appropriate enforcement actions under this Act on the basis of
investigations or inspections commenced prior to the effective
date of the Act, when such investigations or inspections had not
yet resulted in citations, notices, or orders to an operator.
With regard to standards-setting proceedings which had
commenced but were not completed prior to the effective date of
the Act, the Committee intends that the Secretary of Labor have
the necessary flexibility to complete those proceedings
expeditiously and without subjecting the new or revised standard
to challenge on grounds of technical noncompliance with statutory
procedures unrelated to the merits of the standard itself.
Existing mandatory standards under the Coal and the Metal Acts,
that present mandatory standards will continue in effect until
superseded by the Secretary of Labor. Provision is made for
review of "advisory" standards promulgated under the Metal Act
and conversion of those standards appropriate into mandatory
standards.
Retention of safety research and training by the Department of
the Interior
It is the intent of the Committee that the Secretary of the
Interior and the Secretary of Health, Education, and Welfare,
respectively, continue to be responsible for the safety and health research
programs for both the coal and the non-coal segments of the
industry in accordance with the assignment of these
responsibilities made to each Secretary under section 501 of the
Coal Act.
Because training is a logical adjunct of research, the bill
provides that "the National Mine Health and Safety Academy" is
retained in the Department of the Interior, and is to be utilized
by the Secretaries of Labor and HEW in the performance of their
statutory and other duties relating to the training of mine
health and safety inspectors, mining personnel, and other
persons. This assists the Secretaries in performing these
functions by placing the Academy where it has most direct access
to the mining expertise, facilities and research and development
technology that are available in the Interior's Bureau of Mines
and Geologic Survey.
However, it should be noted that it is the intention of the
Committee that technological support facilities which relate to
the enforcement function, such as the statistical and analytical
computer centers and laboratories which are used for such matters
as testing and certification activities and in connection with
inspection responsibilities, are to be transferred to the
Department of Labor.
Inspector qualifications
Section 303(e)(2) establishes the qualifications of inspectors,
however, the Committee intends that persons who are qualified
only by virtue of training or education, particularly in the
field of health, should not be automatically excluded.
TABULATION OF VOTES IN COMMITTEE
Pursuant to section 133(b) of the Legislative Reorganization
Act of 1946, as amended, the following tabulation of votes in
committees is provided.
FULL COMMITTEE
Senator Randolph's motion to report the bill favorably, as
amended. (adopted 11-0)
YEAS.-- Mr. Williams, Mr. Randolph, Mr. Pell, Mr. Kennedy, Mr.
Nelson, Mr. Hathaway, Mr. Riegle, Mr. Javits, Mr. Schweiker, Mr. Stafford, and Mr. Hayawaka.
NAYS.-- None.
LABOR SUBCOMMITTEE
Senator Randolph's motion to report the bill favorably was
amended to the Committee on Human Resources. (adopted 6-0)
YEAS.-- Mr. Williams, Mr. Pell, Mr. Riegle, Mr. Javits, Mr. Schweiker, and Mr. Stafford.
NAYS.-- None.
ESTIMATE OF COSTS
In accordance with the requirements of Section 252 of the
Legislative Reorganization Act, the Committee provides the
following estimate of the costs of this bill.
No government agency has submitted to the Committee any cost
estimate by which a comparison can be made with the Committee
estimate of the cost of this legislation.
COST ESTIMATE ON S. 717 SUBMITTED TO THE COMMITTEE ON HUMAN
RESOURCES BY THE CONGRESSIONAL BUDGET OFFICE
CONGRESSIONAL BUDGET OFFICE,
U.S. CONGRESS,
Washington, D.C., May 13, 1977.
Hon. HARRISON A. WILLIAMS, Jr.,
Chairman, Committee on Human Resources,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: Pursuant to Section 403 of the
Congressional Budget Act of 1974, the Congressional Budget Office
has prepared the attached cost estimate for S. 717, the Federal
Mine Safety and Health Amendments Act of 1977.
Should the Committee so desire, we would be pleased to provide
further details on the attached cost estimate.
Sincerely,
ALICE M. RIVILIN
Director.
Attachment.
CONGRESSIONAL BUDGET OFFICE--COST ESTIMATE
1. Bill number: S. 717.
2. Bill title: Federal Mine Safety and Health Amendments Act
of 1977.
3. Bill purpose: S. 717 repeals the Federal Metal and
Nonmetallic Mine Safety Act of 1966 and amends the Federal Coal
Mine Health and Safety Act of 1969 to include all mines, coal and
other. In addition, S. 717 provides for the following:
A. Transfer of functions for the Mine Enforcement and Safety
Administration from the Department of the Interior into the
Department of Labor;
B. Establishment of advisory committees at the discretion of
the Secretary of Labor;
C. Increased number of mandatory inspections for surface
mines; and
D. Establishment of a Federal Mine Safety and Health Review
Commission.
4. Cost estimate:
[In millions of dollars]
_________________________________________________________________
Fiscal years
_____________________________________________
1978 1979 1980 1981 1982
_________________________________________________________________
Sec. 103: Advisory
Committee......... 0.025 0.105 0.110 0.100 0.100
Sect. 104: Inspections,
investigations, and
recordkeeping:
Sec. 104(a).... 2.3 10.0 10.6 11.2 11.9
Sec. 104(a).... .9 4.1 2.1 2.2 2.3
Sec. 104(c).... .25 1.1 1.2 1.3 1.4
Sec. 104(h).... .10 .48 .51 .54 .57
_____________________________________________
Total........ 3.55 15.68 14.41 15.24 16.17
Sec. 105(d):
Citations and
orders............ .10 .48 .51 .54 .57
Sec. 114: Assessment
of civil penalties
(Federal Mine Safety
and Health Review
Commission)....... 1.4 5.9 5.2 5. 5.8
Sec. 303(a)(3):
NIOSH............. .4 1.7 1.8 1.9 2.0
Sec. 303(a)(3):
Authorization:
Research........... 6.3 25 25 25 25
Sec. 303(d):
Authorization:
State grants...... 1.3 5 5 5 5
__________________________________________
Total cost......... 13.1 53.9 52 53.3 54.6
Offsetting receipts -4.0 -14.0 -20 -20.0 -20.0
__________________________________________
Total.............. 9.1 39.9 32 33.3 34.6
_________________________________________________________________
5. Basis for estimate: The projected costs associated with
Section 103 are based on experience from similar advisory
committees currently operating under the Department of Labor. It
is assumed that during the first two years, meetings will be held
more frequently in order to review and advise on standard
setting.
The cost estimate for general inspections, Section 104, assumes
mandatory inspections of a complete nature at least four (4)
times annually for all underground mines and at least two (2)
times a year for all surface mines. Presently, under the Federal
Coal Act, this requirement is being met, so that additional costs
reflect increased inspection activity only for metal and
nonmetallic mines. MESA estimates an additional 9,500
inspections or an increase of 310 positions for a total cost of
$9.3 million (310 positions x $30,000).
Section 104(a) also requires additional testing in the specific
area of potential environmental hazards, thus increasing the
weighing and analysis of dust samples. MESA estimates that this
new requirement will demand 65 new staff positions and
expenditures for necessary analysis equipment for a total cost of
$3.8 million. It is assumed that approximately 50 percent of
this amount will be purchase of equipment of a onetime basis, so
that in years after 1979 the majority of costs associated with
this subsection will be personnel costs.
Section 104(c) requires that additional health data of all
workers exposed to toxic substances and harmful physical agents
be computerized. The MESA estimate for this section is an
additional 20 positions. Along with hardware costs, the total
comes to $1 million.
Lastly, Section 104(h) requires additional spot inspections
over and above those presently performed. According to MESA,
there are 35 additional mines releasing 500,000 cubic feet of
explosive gases during a 24hour period which would require
inspections every 10 days, and 63 additional mines releasing
200,000 cubic feet of explosive gases which must be inspected
every 15 days. These new requirements will necessitate the
addition of 15 positions, for a total of $450,000.
Two additional areas that would increase expenditures if the
provisions of the Coal Act were applied to all mines are: (1)
Assessment of Civil Penalties and (2) Medical Examinations.
The cost estimate for Section 114 reflects an increase in
activity in the area of Assessment of Civil Penalties.
Currently, no such provision exists under the Federal Mine and
Nonmetallic Mine Safety Act, so the application of this provision
as under the Federal Coal Mine Health and Safety Act of 1969
would require additional personnel.
Based upon their experience related to coal violations, MESA
calculates that 130 positions would be necessary to process
130,000 violations of non-coal mine activity. Using a
per-position cost of $24,500, an additional $3.2 million is
estimated to be required in the first year.
S. 717 also includes the use of a new formula utilizing four
instead of six criteria in assessing violations. This
necessitates reprogramming existing equipment and realizing a
onetime cost of $1 million.
In addition, the appeals process, currently conducted by the
Department of the Interior's Office of Hearings and Appeals but
to be transferred under this bill to the Department of Labor,
would require another 75 positions due to the increase in
responsibility and workload. Personnel costs for this office
are estimated at $20,000 per position, or total cost of $1.5
million. It is assumed that startup and operating costs for the
Federal Mine Safety and Health Review, Commission are included in
this amount.
Under existing regulations of the Federal Coal Act, NIOSH
(National Institute of Occupational Safety and Health) through
its research is required to process medical examinations. In
MESA's opinion, the workload associated with this requirement
will increase threefold at an estimated additional cost of $1.6
million.
Finally, under Section 303(a), there is to be authorized an
additional $25 million for research; and under Section 303(d) an
additional $5 million for state grants. In each case, the
appropriation level is assumed to equal the authorization level.
Outyear personnel costs are inflated by CBO projections for
General Schedule pay increases. Also, the estimate assumes that
costs for FY 78 are based upon a quarter year of activity.
Because of the increased activity in assessment, of civil
penalties, MESA estimates that $20 million will be assessed
against metal and nonmetallic mine operators (approximately
130,000 violations at $150 each). The amount of offsetting
receipts into the U.S. Treasury from payments of fines is
calculated on the basis of a collection rate of 25 percent the
first year, 50 percent the second year, and 30 percent the third
year, based on previous experience with coal violations. It is
assumed that an additional $20 million will be assessed in each
subsequent year.
Although other provisions of the bill include the creation of
new responsibilities within the Department of Labor, these should
not generate additional costs, for they represent a one-to-one
transfer from the Department of the Interior.
6. Estimate comparison: Not Applicable.
7. Previous CBO estimate: None.
8. Estimate prepared by: Mary Plaska (225-7766).
9. Estimate approved by: Budget Analysis.
JAMES L. BLUM
Assistant Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT
Pursuant to the requirements of Section 5 of the Rule XXIX of
the Standing Rules of the Senate, the Committee makes the
following evaluation of the paper work and regulatory impact of
S. 717.
Health and safety in the mining industry is currently regulated
by two laws, the Metal and Nonmetallic Mine Safety Act and the
Federal Coal Mine Health and Safety Act of 1969. S. 717 combines
that regulation under a single statute. Additional regulatory
impact under this bill thus, is limited.
To assist the Senate in understanding the scope of the industry
affected the following information (based on 1976 figures) is
provided:
Employment
Coal Men employed
Underground ................................... 135,977
Surface ....................................... 75,894
_______
Total .................................... 211,871
Metal and nonmetal mines and mills:
Underground ................................. 40,012
Surface ..................................... 134,013
Mills ...................................... 100,515
________
Total ................................ 274,540
Grand total .......................... 486,411
Mining Operations
Number of mines
Coal:
Underground .................................... 2,337
Surface ........................................ 3,215
________
Total ................................ 5,452
______________________________________________________________
Number of Intermittent
year round or seasonal
Metal and nonmetal mining active mines mines
operations
_______________________________________________________________
Underground ...................... 629 365
Open pit ......................... 1,436 350
Crushed stone .................... 3,510 806
Sand and gravel .................. 5,368 2,450
Mills ............................ 858 75
_______________________________
Total ....................... 11,801 4,046
Grand total .................. 21,299
________________________________________________________________
The Committee estimates the cost of complying with the
provisions of this bill, for the entire mining industry, both
coal and non-coal, will be approximately $69.15 million per year.
These costs will result from operators' compliance with the
provisions of the bill requiring health and safety training of
miners, from additional inspections required by the bill, and
from salaries of miners who may exercise the right created in the
bill to participate in mine inspections. This estimate
also includes the cost of complying with standards which may
require warning labels on machinery and chemicals used in mines,
additional medical examinations of miners, and monitoring of
miner exposure to toxic substances or harmful physical agents.
The Committee believes that improved safety and health in the
industry will result in the decrease in "downtime" and improved
miner morale and increased production. The net cost to the
industry, then, should be reduced by the effect of these
improvements. The Committee cannot estimate the industry's
potential savings in this respect, but it believes they will
significantly reduce the economic impact reflected in the
estimate above.
The cost to the industry of complying with new standards which
may be promulgated by the Secretary is difficult to estimate.
The Committee believes that, in most instances, operators will be
able to comply with standards by altering existing mining
operations at minimum cost. The Committee also firmly believes
that any cost outlay necessary to comply with standards will be
made up with increased productivity and reduced compensation in
event of death, injury or disability.
The bill contemplates minimal record keeping of a personal and
private nature. The bill has provisions to assure the privacy of
the individuals. For example, Section 104(f)(1) permits miners
to request inspections and requires the Secretary to provide the
mine operator with a copy of such requests. In all such cases,
the names of the complaining miner and of individual miners named
in such complaint are not to appear on the copy presented to the
operator.
Section 102(a) (6) authorizes the Secretary to promulgate
regulations which may require the periodic medical examinations
of miners, either by the Secretary of Health, Education, and
Welfare or by the operator. Where medical examinations are
conducted by the Secretary of Health, Education and Welfare, the
results of those examinations can be available only to the
Secretaries, or on the specific permission of the miner involved,
to his personal physician. The Committee believes that such
information would be protected by the Privacy Act and would not
be releasable by the Secretaries. This requirement then should
constitute no interference with the privacy of the miners. Where
such medical examinations are provided at the operator's expense,
examination results could be available to the operator, within
the limits of the physicians' ethical considerations. In such
cases, every effort to protect miners from discrimination or
adverse action as a result of the release of his medical records
is provided. The provisions concerning medical evaluation of
miners will require additional paperwork by mine operators or
their physicians.
Section 102 permits the Secretary to include in promulgated
regulations the requirement that operators monitor and maintain
accurate records of miner exposure to toxic substances or other
harmful agents. In addition, Section 116 requires operators to
maintain accurate records of the safety and health training which
is provided to miners. Simple record keeping in connection with
this requirement is contemplated.
These records are necessary for enforcement of the training
requirement for the development of information regarding causes
and prevention of occupational accidents and illnesses, and for
identifying exposed employees so that appropriate treatment and protective
action can be provided. To the extent that accurate records in
these areas are maintained, the need for inspection and
investigation by the Secretaries of Labor and Health, Education,
and Welfare will be reduced.
The Committee believes that required paperwork should be kept
to a minimum, and toward that end, Section 104(d) cautions the
Secretaries, in imposing paperwork requirements, to do so in a
manner which will impose a minimum burden on operators, paying
special attention to those operating small businesses. The
section further provides that unnecessary duplication of effort
in connection with paperwork requirements are to be kept to a
minimum.
SECTION-BY-SECTION ANALYSIS
Title I -- Amendments to the General Provisions of the
Federal Coal Mine Health and Safety Act of 1969
Section 101--This section amends section 1 of the Federal Coal
Mine Health and Safety Act of 1969 so that it is now cited as the
"Federal Mine Safety and Health Act of 1977."
Section 102--Definitions and applicability.
Section 102(a)(1)--provides that Section 2 of the Federal Mine
Safety and Health Act of 1976 is amended by striking out "coal" wherever it appears.
Section 102(a)(2)--references to the Secretary of the Interior
to become references to the Secretary of Labor.
Section 102(b)(1)--changes the definition of "Secretary" in
section 3(a) from Secretary of the Interior to Secretary of Labor.
Section 102(b)(2)--clarifies the definition of "operator" to
include independent contractors performing services or construction at a mine.
Section 102(b)(3)--enlarges the definition of "mine" in section
3(h) to include those mines previously covered by the Federal
Metal and NonMetallic, Mine Safety Act. This definition is also
expended to include facilities for the preparation of coal,
except that the Secretary is to give due consideration to the
convenience of giving one Assistant Secretary all authority with
respect to health and safety of miners employed at one physical
establishment.
Section 102(b)(4)--expands the definitions of "operator,"
"agent," "miner," and "imminent danger" in sections 3(d), (e),
(g), and (j), respectively, to apply to all mines now covered by
the Act.
Section 102(b)(5)--amends section 3 to add a new section 3(n)
defining "Administration" which means the Mining Enforcement and
Safety Administration established under section 302 of this Act
and a new section 3(o) defining "Commission" which means the
Federal Mine Safety and Health Review Commission which is
established in the Act.
Section 102(c)--amends section 4, "Mines Subject to Act," to
include in addition to coal mines, mines newly covered by this
Act.
Section 102(d)(1)--amends section 5(c) to conform the wording
thereof to the new definition of "Secretary," but the meaning is
unchanged.
Section 102(d)(2)--includes operators and miners'
representatives of mines newly covered by this Act among those
that may ask the Interim Compliance Panel for a public hearing
under section 5(f), and changes the wording of that section to
conform to the new section number for "Judicial Review."
Title II -- Mine Safety and Health Standard Amendments
Amendments to title I
Section 202--This section amends Title I of 1969 so that it
includes:
Section 101--Duties.
Section 101(a)--establishes the duty of each mine operator to
comply with the health and safety standards, all rules
regulations, and orders promulgated under this Act and to furnish
a place of employment free from recognized hazards causing or
likely to cause death or physical harm.
Section 101(b)--establishes the duty of each miner to comply
with the health and safety standards, all rules, regulations, and
orders promulgated under this Act which are applicable to his own
conduct.
Section 102--Safety and Health Standards.
Section 102(a)--establishes that the Secretary may promulgate,
modify or revoke any health or safety standard by rule in
accordance with the provisions of section 553 of Title 5 of the
United States Code (without regard to any reference therein to
sections 556 and 557 of such title) and the following provisions.
Section 102(a)(1)--provides that the Secretary may request the
recommendations of an advisory committee appointed under section
103 whenever he determines from information submitted to him in
writing or on the basis of his own information that a rule should
be promulgated, except that when the recommendation comes from
the National Institute for Occupational Safety and Health, the
Secretary must within sixty days after receipt thereof either
commence rule making or publish in the Federal Register his
decision not to do so.
When an advisory committee is appointed, the Secretary must
provide such committee with any proposal of his own or of the
Secretary of Health, Education, and Welfare as well as any
factual information that has been developed. The advisory
committee must submit to the Secretary its recommendations within
90 days from the date of its appointment or a longer or shorter
period of time prescribed by the Secretary, but no longer than
180 days after the appointment.
Section 102(a)(2)--requires the Secretary to publish a proposed
rule in the Federal Register and afford interested persons a
period of 30 days after publication to submit written comments.
Where an advisory committee is appointed the Secretary must
publish the proposed rule within 60 days after submission of the
committee's recommendations or the expiration of the period
prescribed by the Secretary for those recommendations, if he
decides to publish such recommendations and if he decides not to
publish such recommendations, he shall publish the reason for his
determination not to.
Section 102(a)(3)--permits any interested person to file with
the Secretary written objections to the proposed rule and request
a public hearing before the expiration of the comment period
provided for in section 102(a)(2), within 60 days after the last day for filing
such objections, the Secretary shall publish in the Federal
Register a notice specifying the standard objected to and the
time and place for a hearing.
Any such hearing shall be held promptly and shall be conducted
in accordance with procedural rules or rulings which the
Secretary shall make in order to avoid unnecessary costs or
delay. The Secretary is authorized to subpena witnesses and
evidence necessary to adequately develop the record. A verbatim
transcript of all such hearings shall be made, and available to
the public.
Section 102(a)(4)--provides that within 90 days after
expiration of the comment period under section 102(a)(2) or after
certification of the record of a hearing under section 102(a)(3),
the secretary shall issue a rule or determine that a rule shall
not be issued. In order to insure that affected employers and
their employees are informed of the existence of the standard and
its requirements, an issued rule may contain a provision delaying
its effective date for a period determined by the Secretary.
Section 102(a)(5)(A)--requires the Secretary, in promulgating
standards, to set the standard which most adequately assures on
the basis of the best available evidence that miners will not
suffer, impairment of health or functional capacity, even if
regularly exposed to the hazards throughout their working lives.
Development of standards is to be based on research,
demonstration, experiment, and other appropriate information. In
addition to the attainment of the highest degree of safety and
health protection for the miner, other considerations shall be
the latest available scientific data in the field, the
feasibility of the standards and experience gained under this and
other health and safety statutes. Wherever practicable, the
standard should be expressed in terms of objective criteria and
performance desired.
Section 109(a)(5)(B)--requires the Secretary of Health,
Education and Welfare to identify toxic materials or harmful
physical agents found in mines and to within eighteen months of
enactment of these Amendments, and on a continuing basis
thereafter, determine whether those substances or agents pose a
threat to miners in the concentrations in which they are normally
found in a mine. Thereafter appropriate criteria, are to be
transmitted to the Secretary as developed who shall within sixty
days after receipt thereof, for all agents or substances not
already covered by an appropriate standard, either commence
formal standard promulgation procedures under Section 102(a)(1)
or 102(a)(2), or shall publish his determination not to do so.
Section 102(a)(6)--provides that any standard promulgated under
section 102(a) must prescribe the use of labels or other warnings
necessary to ensure that miners are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate
emergency treatment and proper conditions and precautions of safe
use or exposure. A standard, when appropriate, shall prescribe
protective equipment, control or technological procedures to be
used, and shall provide for monitoring or measuring miners'
exposure as may be necessary for the protection of the miners.
Where appropriate, such standard shall prescribe the type and
frequency of medical examination
or tests which the operator shall provide, at his cost; in order
to determine whether the miner exposed to such hazards is
adversely affected by such exposure. Such standards shall
provide that where a determination is made that a miner may
suffer material impairment of health or functional capacity as a
result of exposure to it hazard covered by the standard, miners
shall be removed from such exposure and reassigned. Any miner
transferred due to such exposure shall receive compensation at
not less than the rate for miners in the classification he held
immediately prior to his transfer.
The medical examination may be furnished at the expense of the
Secretary of Health, Education, and Welfare if he determines them
to be in the nature of research. The results of such examination
or tests shall be furnished only to the Secretary, the Secretary
of Health, Education, and Welfare, and at the miner's request, to
his designated physician.
Section 102(a)(7)--requires the Secretary, to the extent
possible, to promulgate mandatory health and safety standards
applicable to mine construction activity which takes place on the
surface in a separate part of the Code of Federal Regulation.
Section 102(a)(8)--requires that in promulgating or revoking
standards or in publishing any rule under Title I the Secretary
shall not reduce the protection afforded miners below that of any
standard previously in effect.
Section 102(b)(1)--provides that where the Secretary determines
that miners are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
and that an emergency temporary standard is necessary to protect
the miners, he may promulgate an emergency standard effective
upon publication in the Federal Register without regard to the
rulemaking procedures of the Administrative Procedure Act.
Section 102(b)(2)--provides that an emergency temporary
standard shall be effective until superseded by a standard
promulgated in accordance with the procedures prescribed in
section 102(b)(3).
Section 102(b)(3)--requires the Secretary to begin a proceeding
for promulgating a standard in accordance with section 102(a)
upon publication of the emergency temporary standard. The
emergency temporary standard shall serve as the proposed rule in
such a proceeding and the Secretary shall promulgate the
permanent standard no later than nine months after publication of
the emergency temporary standard.
Section 102(c)--authorizes the Secretary to grant a variance if
he determines or the Secretary of Health, Education, and Welfare
certifies that such a variance is necessary for the operator to
participate in an experiment approved by one of the Secretaries
designed to improve techniques of safeguarding the health or
safety of the workers. Variances under this subsection shall not
be granted until the Secretary determines that such a variance
will not adversely affect the health and safety of the miners and
such miners are notified directly and by publication in the
Federal Register.
Section 102(d)--allows operators or miners' representatives to
apply to the Secretary for a variance from a standard. Affected
miners and their representative must be given notice of each such
application and an opportunity to participate in a hearing. The Secretary
shall issue a variance if he determines on the record, after
opportunity for an inspection where appropriate and a public
hearing that the operator will provide conditions as safe and
healthful as those which would prevail if he complied with the
standard. The order of variance shall prescribe the conditions
the operator must maintain and the practices he must use to the
extent they differ from the standard. Such an order may be
modified or revoked upon application by an operator, miners,
miners' representative, or by the Secretary in the manner
prescribed for its issuance.
Section 102(e)--provides that subsection (d) shall not apply
with respect to any coal health standard in effect on the
effective date of the Federal Mine Safety and Health Amendments
Act of 1977.
Section 102(f)--allows persons adversely affected by a standard
to challenge its validity within 60 days of its promulgation. In
the appropriate U.S. court of appeals. Unless ordered by the
court, such challenge shall not operate as a stay of the
standard.
Only objections which are raised during the administrative
proceedings shall be considered by the court in reviewing such
standards, unless failure to have raised such objections earlier
shall be excused by the court due to extraordinary circumstances.
The procedures of this Section shall be the exclusive means of
challenging the validity of the standards.
Section 103--Advisory Committees.
Section 103(a)--allows the Secretary to appoint advisory
committees to assist him in his standard setting functions under
section 102(a) and advise him on other health and safety matters.
Each committee may include one or more designees of the Secretary
of Health, Education, and Welfare, the National Bureau of
Standards, and the National Science Foundation, operator and
miner representatives in equal numbers, one or more
representatives of State mine inspection or safety agencies. It
may include other members qualified by knowledge and experience
who shall not exceed in number the members from Federal and State
agencies. Committee meetings must be open to the public and the
record thereof be made available to the public. No committee
member, except representatives of the operator and miners, shall
have an economic interest in any proposed rule.
Section 103(b)--provides for the compensation for committee
members from private life according to the provisions for section
3109 of title 5, United States Code for consultants or experts.
The Secretary shall pay to the States the actual costs to them of
their representatives' membership on the Committee.
Section 104--Inspections, investigators, and recordkeeping.
Section 104(a)--authorizes the Secretary or the Secretary of
Health, Education, and Welfare, or the authorized representative
of either, to make frequent inspections of mines to (1) obtain,
utilize and disseminate information relating to the health or
safety of miners, the causes of accidents, and of diseases or
impairments originating in such mines, (2) gather information
with respect to standards, (3) determine whether an imminent
danger exists, and (4) determine whether there is compliance with
the Act and its requirements. The Secretary is required to make
inspections of all underground mines
their entirety at least four times per year, and of all surface
mines in their entirety at least two times per year, and the
Secretary is authorized to establish guidelines for such
additional inspections of mines where warranted. No advance
notice of inspections is to be given.
Section 104(b)--allows the Secretary to require the attendance
and testimony of witnesses and the production of evidence under
oath in connection with investigations of accidents and other
occurrences. Witnesses will be paid the same as witnesses in
U.S. courts. The appropriate district courts, upon application
by the Secretary shall have jurisdiction over witnesses failing
to appear and may issue orders requiring such appearance.
Failure to obey such an order may be punished as contempt.
Section 104(c)(1)--requires each operator to maintain and make
available to the Secretaries such records that the Secretary, in
cooperation with the Secretary of Health, Education, and Welfare,
prescribes as appropriate for the enforcement of the Act or for
developing information regarding the causes and prevention of
occupational accidents and illnesses in the mines. Regulations
issued pursuant to this paragraph may include provisions
requiring operators to conduct periodic inspections.
Section 104(c)(2)--provides that the Secretary, in cooperation
with the Secretary of Health, Education, and Welfare, shall
require operators to maintain records of and make periodic
reports on work-related deaths, injuries, and illness except for
minor injuries requiring only first aid treatment.
Section 104(c)(3)--requires the Secretary, in cooperation with
the Secretary of Health, Education, and Welfare, to issue
regulations requiring operators to maintain records of miner
exposures to potentially toxic or harmful physical agents that
must be monitored or measured under the Act's health and safety
standards. The regulations are to give miners or their
representatives an opportunity to observe the monitoring or
measuring and to give miners and former miners access to such
records of individual exposure. Operators are to notify miners
of overexposure and shall inform overexposed miners of the
corrective action being taken.
Section 104(c)(4)--provides that all accidents except some
unintentional roof fails, shall be investigated by the operator
or his agent to determine the cause and means of preventing
recurrence. Records of accidents and investigations shall be
maintained and made available to the Secretary and the
appropriate State agency. Such records shall be open for
inspection by interested persons.
Section 104(d)--requires that information obtained under the
Act must be obtained with a minimum burden upon operators,
especially those operating small businesses. Unnecessary
duplication of efforts in obtaining information is to be reduced
as much as possible.
Section 104(e)--provides that subject to regulations issued by
the Secretary a representative of the operators and a
representative of the miners shall be given an opportunity to
accompany the inspecting official during the inspection of a mine
under section 104(a) and to participate in any pre and
post-inspection conferences at the mine site. Where there is no
authorized miner representative the inspector shall consult with
a reasonable number of miners. If he determines more than one
representative from each party would aid the inspection,
the inspector may permit each party an equal number of additional
representatives. A miner representative who is also employed by
the operator shall not lose pay for his participation in the
inspection, but only one such miner shall be authorized to be
paid pursuant to this subsection. Compliance with this
subsection shall not be a jurisdictional prerequisite to the
enforcement of any provision of this act.
Section 104(f)(1)--provides that if any miner or his
representative believes that a standard violation exists that
threatens physical harm or that an imminent danger exists, he may
request an inspection by giving written notice with his signature
to the Secretary or his authorized representative of such
violation or danger. A copy of such notice shall be provided to
the employer or his agent no later than at the time of inspection
but the name of the person giving such notice and the names of
the miners referred to therein shall be deleted.
If the Secretary determines there are reasonable grounds to
believe that a violation or danger exists, he shall make a
special inspection as soon as practicable. If the Secretary
determines that no violation or danger exists, he shall so notify
in writing the miners or their representative.
Section 104(f)(2)--provides that prior to or during any
inspection any miners or their representatives may notify the
federal inspector, in writing, of any violation of this Act or of
any imminent danger they believe exists. The Secretary shall, by
regulation, establish informal review procedures for any refusal
by an inspector to issue a citation with respect to such alleged
violation or order with respect to such danger and shall furnish
the miners or their representative requesting such review a
written statement of the reasons for his final disposition of the
case.
Section 104(g)(1)--authorizes the Secretary and the Secretary
of Health, Education, and Welfare to publish information obtained
under this section.
Section 104(g)(2)--provides that the Secretary and the
Secretary of Health, Education, and Welfare shall each prescribe
regulations necessary to carry out their responsibilities under
this Act.
Section 104(h)--requires the Secretary to provide a minimum of
one spot inspection of all or part of a mine during every 5
working days at irregular intervals, if the mine contains some
especially hazardous conditions and provides specifically for
inspection once each five days of mines liberating 1,000,000
cubic feet of explosive gases each day; once each ten days of
mines liberating 500,000 cubic feet of such gases; and once each
15 days of mines liberating 200,000 cubic feet of such gases.
Section 104(i)--provides that if there is a mine accident, the
operator shall notify the Secretary and preserve any evidence
that would aid an investigation of the cause. The Secretary may
supervise rescue and recovery activity in such mine, if such
activity is necessary, and take other appropriate action to
preserve life.
Secretary 104(j)--provides that if there is a mine accident,
and the Secretary's representative is present, he may issue
appropriate orders to insure the safety of persons in the mine,
and the operator must obtain his approval, in consultation with
appropriate State representatives,
when feasible, of any recovery plan or of any plan to return
affected areas to normal operation.
Section 105--Citations and Orders.
Section 105(a)--provides that if, upon inspection or
investigation, the Secretary or his representative believes an
operator has violated this Act or any standard, rule, order or
regulation promulgated pursuant to this Act, he shall with
reasonable promptness issue a citation to the operator. The
citation shall be written, describe with particularity the nature
of the violation, and fix a reasonable time for the violation's
abatement.
Section 105(b)--provides that, if upon any follow-up inspection
the Secretary's representative finds (1) the cited violations
have not been totally abated within the original or subsequently
extended abatement period, and (2) the abatement period should
not be further extended, he shall find the area affected by the
violation and promptly issue an order requiring the operator to
withdraw from the affected area all persons (until the
Secretary's representative determines the violation has been
abated), except the following:
(1) Any person whose presence is necessary to eliminate the
danger, in the judgment of the operator or the Secretary's
representative;
(2) Any public official whose official duties require his
presence, or
(3) Any legal or technical consultant or representative,
qualified to make mine examinations or accompanied by such a
person, and whose presence is necessary for the proper
investigation of the conditions described in the order, in the
judgment of the operator or the Secretary's representative.
Section 105(c)(1)--provides that, if the inspector finds a
violation of a standard which could significantly contribute to
the cause and effect of a mine health or safety hazard and which
was caused by an unwarranted failure of the operator to comply
with such standard, he shall issue a citation to the operator,
noting such. If within the same or any subsequent inspection
within 90 days, the inspector notes another unwarranted failure
violation, the inspector shall issue an order, closing the mine
or the affected portion of the mine to all individuals except
those designated in Subsection (b) until such violation shall be
abated.
Section 105(c)(2)--provides that once a withdrawal order has
been issued under Subsection (c)(1), another withdrawal order
shall be issued if on any subsequent inspection, an unwarranted
failure violation is cited. Any such order can be lifted when
the underlying violation has been abated; but the provisions of
Subsection (c)(1) shall only become applicable to an operator
when an inspection of the mine in its entirely indicates no
unwarranted failures.
Section 105(d)(1)--provides that if an operator has developed
a pattern of violations within a mine which are of a nature which
could significantly and substantially contribute to the cause
and effect of a mine health or safety hazard, the Secretary shall
notify the operator of the existence of such a pattern. If upon
an inspection within 90 days after the issuance of such notice,
the Secretary or his authorized representative finds any
violation of a standard which could significantly and
substantially contribute to the cause and effect of a mine safety
and health hazard, the inspector shall issue an order requiring
all individuals except those designated in Subsection (b) to be
withdrawn from the mine or the affected area. Such an order will be lifted
when the underlying violation has been abated.
Section 105(d)(2)--provides that if a withdrawal order has been
issued under Subsection (d)(1) and on any subsequent inspection
the Secretary or his authorized representative finds another
violation of a standard which could significantly and
substantially contribute to the cause and effect of a mine safety
or health hazard, he shall issue an order withdrawing all
individuals except those designated in Subsection (b) from the
mine or affected area. Such order shall remain in effect until
the underlying violation has been abated.
Section 105(d)(3)--provides that an inspection of the mine in
its entirety which discloses no violations which could
significantly and substantially contribute to the cause and
effect of a mine safety or health hazard will terminate the
pattern of violations which resulted in the issuance of the
notice under Subsection (d)(1). Subsequent such violations can
reestablish the pattern, and make the provisions of Subsections
(d)(1) and (2) applicable at that time.
Section 105(d)(4)--authorizes the Secretary to make such rules
as he deems necessary to establish the criteria for determining
the existence of a pattern of violations which could
significantly and substantially contribute to the cause and
effect of a mine safety or health hazard.
Section 105(e)--requires that during the abatement period for a
violation of the respiratory dust concentration limit, the
operation must take samples described in section 202(a) during
each production shift. The section also provides that, after a
withdrawal order has been issued for failure to abate a violation
of the respirable dust concentration limit, the Secretary, upon
request of the operator, shall provide technical assistance to
aid in reducing such dust concentrations. Those persons sent by
the Secretary may require the operator to take actions they deem
appropriate to insure the health of persons in the mine.
Section 105(f)(l)--provides that if the Secretary's
representative, while on an inspection, finds a miner employed in
a mine who has not received requisite safety training in
accordance with a safety training plan approved by the Secretary
in accordance with the provisions of section 116 of the Federal
Mine Safety and Health Act of 1977, such a miner is to be
declared a hazard to himself and others, and such miner is
required to be immediately withdrawn from the mine until the
Secretary can determine that such miner has received the
requisite training.
Section 105(f)(2)--provides that miners ordered withdrawn from
a mine as a result of not having received such training shall not
be discriminated against for such reason, and shall suffer no
loss of pay during the period until the Secretary finds that such
training has been given to the miner.
Section 105(g)--requires that each citation or order or copy
thereof issued under this section must be posted in accordance
with section 110 and as prescribed by the Secretary's
regulations.
Section 105(h)--provides that any order issued under section
105(b), (c) or (d) is effective until revoked by the Secretary or
modified or vacated by the Commission or the courts pursuant to
sections 106 or 107.
Section 106. Procedures for Enforcement.
Section 106(a)--requires the Secretary to notify within a
reasonable time an operator issued a citation or order under
section 105(a)(1) of any penalty to be assessed under section
111(a) and that the operator has 15 working days to notify the
Secretary that he wishes to contest the citation or proposed
penalty. A copy shall be furnished the miners' representative.
If the operator fails to notify the Secretary within the 15
working days that he intends to contest the citation or proposed
penalty or penalties and if no notice is filed by any miner or
miner representative within such time, the citation and penalty
or penalties as proposed shall be deemed a final order of the
Commission and not subject to review by any court or agency.
Section 106(b)(1)--provides that, if the Secretary believes an
employer has failed to correct a cited violation within the
abatement period the Secretary shall notify the operator and the
miners' representative of such failure, of the proposed penalty
under section 111 of that failure, and that the operator has 15
working days to contest the notification or proposed penalty. If
the operator does not so notify the Secretary within the 15
working days, the notification and proposed assessment shall be
deemed a final order of the Commission and not subject to review
by any court or agency.
Section 106(b)(2)--provides that the Mine Safety and Health
Review Commission may grant temporary relief from any order
issued under Section 105(b) under conditions which it may
prescribe if a hearing has been held in which all parties were
afforded an opportunity to be heard, the applicant shows
substantial likelihood that he will finally prevail on the
merits, and such relief will not adversely affect the health or
safety of miners. The Commission shall provide procedures for
expedited consideration of such cases.
Section 106(c)(1)--prohibits discharging, discriminating
against, or interfering with the exercise of statutory rights by
any miner, representative of miners or applicant for employment
because such individual filed a complaint or instituted or caused
to be instituted any proceeding under or related to this Act, or
because such miner is the subject of medical evaluations and
potential transfer pursuant to a standard issued under Section
102(a) of this Act, or testified or is about to testify in any
such proceeding, or exercised for himself or others any statutory
right afforded by this Act.
Section 106(c)(2)--authorizes any miner, representative or
miners or applicant who believes that he has been discharged or
otherwise discriminated against or interfered with by any person
in violation of this subsection to within 60 days after such
violation, file a complaint with the Secretary, who shall, within
15 days, commence appropriate investigation. If the Secretary
determines that such complaint is not frivolous he shall apply to
the Commission for temporary reinstatement of miner pending final
outcome of the complaint. If upon such investigation, the
Secretary determines there has been such violation, he shall
immediately file a complaint with the Commission proposing an
order granting appropriate relief. The Commission shall afford
an opportunity for a hearing and, based on findings of fact,
issue an order affirming, modifying, or vacating the Secretary's
proposed order or directing other appropriate relief. Such
order is final 30 days after its issuance. The Commission shall
have the authority to order all appropriate relief, including
rehiring or reinstatement of the miner to his former position
with back pay and interest, and during any hearing, the miner,
miners' representative or applicant may present evidence on his
behalf.
Section 106(c)(3)--requires the Secretary, within 90 days of
the receipt of a complaint filed under this subsection, to notify
the complaint of his determination whether a violation has
occurred. If the Secretary determines there is no violation the
complainant may file, within 30 days of such notice, before the
Commission charging discrimination under paragraph (1). The
Commission shall afford an opportunity for a hearing and
thereafter shall issue an order dismissing or sustaining the
complainant's charges and, if sustained, granting appropriate
relief. Such an order becomes final 30 days after its issuance.
When such order sustains the miner's charges, all reasonable
expenses (as determined by the Commission) incurred by the miner
related to such proceedings shall be assessed against the
violator. Proceedings under this section shall be expedited by
the Secretary and the Commission. A Commission order under this
subsection shall be subject to judicial review under section
107. Violations of paragraph (1) by any person shall be subject
to the provisions of sections 109 and 111(a).
Section 106(d)--provides that if an operator notifies the
Secretary that he intends to contest the issuance or modification
of an order or a notification, or the reasonableness of an
abatement period, or any miner or representative of miners
notifies the Secretary that he plans to so contest, the Secretary
shall immediately so advise the commission. The Commission must
then provide an opportunity for a hearing and thereafter issue an
order affirming, modifying, or vacating the Secretary's citation,
order, or proposed penalty or directing other appropriate relief.
Such an order becomes final 30 days after its issuance.
The rules of procedure prescribed by the Commission shall
provide affected miners or their representatives an opportunity
to participate as parties to Commission hearings under this
subsection. The Commission shall take whatever action is
necessary to expedite proceedings for hearing appeals of order
issued under section 105.
Section 107. Judicial Review.
Section 107(a)(1)--permits any person adversely affected or
aggrieved by an order of the Commission issued under this Act to
obtain review of such order or decision in any appropriate U.S.
Court of Appeals by filing a written petition within 30 days of
the issuance of the order. The subsection specifies those
procedures to be followed after a petition for review is filed,
including:
(1) The clerk of the courts transmits a copy of the petition to
the Commission and other parties.
(2) The Commission file in court the proceeding record pursuant
to 28 United States Code 2112 and the courts shall then have
exclusive jurisdiction.
(3) The court is authorized to enter and enforce a decree
affirming, modifying, or setting aside in whole or in part, the
Commission's order.
(4) Objections not urged before the Commission will not be
considered by the court unless the failure to urge such objection
is excused because of extraordinary circumstances. The
Commission's findings of fact shall be conclusive when supported
by substantial evidence on the record as a whole.
(5) Any party may apply for leave to adduce additional evidence
and if such evidence is material and there were reasonable
grounds for not adducing such evidence before the Commission, the
court may order the evidence taken before the Commission and made
part of the record. The Commission may then modify its findings
of fact or make new findings and shall file such findings, which
shall be conclusive if supported by substantial evidence on the
record as a whole. The Commission may modify or set aside its
original order due to such modified or new findings of fast.
(6) The judgment and decree of the court shall be final except
subject to review by the Supreme Court of the United States,
pursuant to 28 United States Code l254.
(7) Petitions filed under this subsection shall be heard
expeditiously.
Section 107(a)(2)--authorizes the court to grant temporary
relief or restraining orders, as appropriate, under conditions
which it may prescribe, if a hearing has been held at which all
parties were given the opportunity to be heard, the applicant for
such relief shows that there is a likelihood that the final
findings will be favorable to the applicant, and such temporary
or other relief will not adversely affect the health or safety of
miners.
Section 107(b)--permits the Secretary to petition an
appropriate United States Court of Appeals for review or
enforcement of the Commission's final order and, to the extent
applicable, the provisions of section 107(a) shall govern such
proceedings. If no review petition, pursuant to section 107(a)
is filed within 30 days after service of the Commission's order,
the Commission's findings of fact and order shall be conclusive
in connection with any enforcement petition filed by the
Secretary after such 30 day period. In any such case, or in the
case of a final order by the Commission under section 106(a) or
(b), the clerk of the court, unless otherwise ordered by the
court, shall enter a decree, enforcing the order and shall
transmit copies to the Secretary and operator. In any contempt
proceeding to enforce a court of appeal's decree pursuant to
section 107(a) and (b), the court of appeals may assess penalties
provided in section 111 and invoke other available remedies.
Section 108. Procedures to Counteract Dangerous Conditions.
Section 108(a)--provides that, if upon any inspection or
investigation, the Secretary's representative finds an imminent
danger exists, he shall determine the affected area and issue a
withdrawal order barring all persons except those referred to in
section 105(b) from such area. The issuance of an order under
this subsection shall not preclude the issuance of a citation
under section 105 or the proposing of a penalty under section
111.
Section 108(b)(1)--provides that, if upon any inspection, the
Secretary's representative finds (A) conditions exist which have
not resulted in an imminent danger, (B) such conditions cannot be
effectively abated with existing technology, and (C)reasonable
assurance cannot be provided that continued mining will not
result in an imminent danger, he shall determine the affected
area and issue a notice to the operator or his agent of such
conditions, and file a copy with the Secretary's and miners'
representative. Upon receipt of such copy, the Secretary shall
make appropriate investigations, including an opportunity for the
operator or miners' representative to present information
relating to such notice.
Section 108(b)(2)--provides that upon conclusion of such
investigation and an opportunity for a public hearing (when
requested by an interested party), the Secretary shall make
findings of fact and, by decision, either cancel the notice or
issue a withdrawal order barring all persons from the affected
area except those referred to in section 105(b) until the
Secretary, after a public hearing affording all interested
persons an opportunity to present their views, determines that
such conditions have been abated. Hearings under this paragraph
shall be of record and subject to 5 United States Code 554 but
without regard to subsection (a)(3) thereof.
Section 108(c)--requires findings and orders issued under
section 108(a) to contain a detailed description of the
conditions which constitute an imminent danger, and all orders
issued under this section to contain a description of the area of
the mine throughout which persons must be withdrawn.
Section 108(d)requires that each finding made and order
issued under this section be in writing, signed by the person
making them, and given promptly to the affected operator. Any
order issued pursuant to sections 108(a) or (b) may be modified
or terminated by the Secretary's representative. Any order
issued under sections 108(a) or (b) shall remain in effect until
modified or terminated by the Secretary or modified or vacated by
the Commission or the courts pursuant to sections 107(a) or
108(e).
Section 108(e)(1)--provides that any operator notified of an
order under this section or any miner representative notified of
the issuance, modification, or termination of such an order, may
apply to the Commission within ten days for its reinstatement,
modification or vacation. The Commission shall afford an
opportunity for a hearing (in accordance with 5 United States
Code 554, but without regard to subsection (a)(3) of such
section) and thereafter issue an order, based on findings of
fact, vacating, affirming, modifying, or terminating the
Secretary's order. The Commission may not grant temporary relief
from the issuance of any order under subsection 108(a).
Section 108(e)(2)--provides that the Commission shall take
appropriate action to expedite proceedings under this subsection.
Section 109. Injunctions.
Section 109(a)(1)--authorizes the Secretary to institute civil
action for relief, including a permanent or temporary injunction
or any appropriate order, in any appropriate United States
district court whenever an operator or his agent (a) violates or
does not comply with any order or decision issued under this Act
(b) hinders the Secretary or the Secretary of Health, Education,
and Welfare, or their representatives in carrying out the
provisions of the Act, (c) refuses to admit such representatives
to the mine, (d) refuses to permit
the inspection of the mine, or the investigation of an accident
or occupational disease related to such mine, (e) refuses to
furnish any information or report requested by the Secretary or
the Secretary of Health, Education, and Welfare in furtherance of
the Act's provisions, or (f) refuses to permit access to and
copying of such records as the Secretary of Health, Education,
and Welfare determine necessary in carrying out provisions of the
Act.
Section 109(a)(2)--authorizes the Secretary to institute civil
action for appropriate relief, including injunction or
restraining order where he determines that an operator is engaged
in a pattern or practice violation of the standards of the Act,
or in a similar course of violative conduct which constitutes a
continuing hazard to the health and safety of miners.
Section 109(b)--provides that each such court shall have
jurisdiction to provide appropriate relief, to include, in cases
under subsection (a)(2), requiring assurance or affirmative steps
by an operator to assure the court that miners shall be afforded
the protection of the Act. Temporary restraining orders must be
issued in accordance with rule 65 of the Federal Rules of Civil
Procedure as amended, but seven days from the date of entry shall
be the time limit when issued without notice. Except as
otherwise provided, relief granted by the court to enforce an
order under clause (a)(1) of this section is effective until
completion of all review proceedings for the order under this
title, unless prior thereto, the district court granting such
relief sets it aside or modifies it. In any action instituted
under this section to enforce an order or decision by the
Commission or the Secretary after a public hearing in accordance
with 5 United States Code 554, the Commission's or Secretary's
findings, if supported by substantial evidence on the record as a
whole, shall be conclusive.
Section 110. Postings of Notices, Orders, and Decisions.
Section 110(a)--requires that at each mine there be a mine
office and a bulletin board at such office or at or near a
conspicuous place near the mine entrance so that notices, orders,
citations, or decisions required to be posted thereon and easily
see, and protected against damage by the weather and unauthorized
removal. A copy of any notice, order, citation, or decision
required to be given to the operator must be delivered to the
mine office and immediately posted on the bulletin board, for not
less than 30 days.
Section 110(b)--requires the Secretary to mail a copy of any
notice, order, citation or decision given to an operator to the
affected miners' representative and to the State official or
agency that administers State laws relating to health or safety
in the affected mine. Such notice, order, citation, or decision
shall be available for public inspection.
Section 110(c)--provides that in order to insure prompt
compliance, the Secretary's representative may deliver any
notice, order, citation, or decision to the operator's agent who
shall immediately take appropriate measures to comply.
Section 110(d)--requires the name and address of each mine and
each person who controls or operates such mine to be filled with
the Secretary. Each operator must designate an official
responsible for health and safety at the mine and that official
shall receive copies of any notice order, citation, or decision
affecting that mine. The designation
of a health and safety official does not make him subject to any
penalty under this Act.
Section 111. Penalties.
Section 111(a)--provides that a civil penalty of up to $10,000
shall be assessed for each violation of this Act or of any
standard, rule, order, or regulation promulgated pursuant to this
Act.
Section 111(b)--provides that an operator who fails to correct
a violation cited under section 105(a) within the abatement
period may be assessed a maximum civil penalty of $1,000 for each
day the violation continues.
Section 111(c)--provides that, whenever an operator violates
any standard, rule, order, or regulation promulgated pursuant to
this Act, or provision of this Act, any director, officer, or
agent of such corporation who knowingly authorized, ordered, or
carried out such violation shall be subject to the same civil
penalties, fines, and imprisonment that may be imposed upon a
person under subsections (a), (b), (d), (e), (f).
Section 111(d)--provides that any operator who willfully
violates this Act or any standard, rule, order, or regulation
promulgated pursuant to this Act or any standard, rule, order, or
regulation promulgated pursuant to this Act shall upon conviction
be punished by a fine of not more than $25,000 or imprisonment of
not more than 1 year, or both. For any subsequent convictions,
punishment shall be a fine of not more than $50,000 or
imprisonment for not more than 5 years, or both.
Section 111(e)--requires that any person convicted of giving
advance notice of any inspection shall be punished by a fine or
not more than $1,000 or imprisonment for not more than 6 months,
or both.
Section 111(f)--provides that whoever knowingly makes false
statements, representations, or certifications in any document
filed or required to be maintained pursuant to his Act shall,
upon conviction, be punished by a fine of not more than $10,000
or by imprisonment for not more than 5 years, or both.
Section 111(g)--provides that any operator who violates any of
the posting requirements under the Act shall be assessed a civil
penalty of up to $10,000 for each violation.
Section 111(h)--provides that any miner who willfully violates
safety standards related to smoking or the carrying of smoking
materials shall be subject to a civil penalty of not more than
$250 for each violation assessed by the Commission.
Section 111(i)--provides that whoever knowingly distributes,
sells, offers for sale, introduces, or delivers in commerce any
equipment for use in a mine, which is represented as complying
with the provisions of this Act, or with any specification or
regulation of the Secretary and which does not so comply, shall
upon conviction be punished by fine or not more than $25,000 or
by imprisonment for not more than one year, or both.
Section 111(j)--authorizes the Commission to assess all civil
penalties and to issue all civil penalty closure orders provided
in this Act, giving consideration in assessing civil monetary
penalties to (a) the gravity of the violation, (b) the good faith
of the person charged, (c) the history of previous violations,
and (d) the appropriateness of the
penalty with respect to the size of business of any operator
being charged, provided that, in proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the
information available to him and shall not be required to make
findings of fact concerning the above factors.
Section 111(k)--provides that civil penalties owed under this
Act shall be paid to the Secretary for deposit into the U.S.
Treasury, and shall accrue to the United States and may be
recovered in a civil action brought in the name of the United
States in a district court of the United States. Interest at the
rate of 8 percent per annum shall accrue on civil penalties
unpaid after 30 days of final order of the Secretary, the
Commission, or the Court.
Section 111(l)--provides that no proposed penalty which has
been contested shall be compromised, mitigated, or settled except
with approval of the Commission or the Court, as appropriate.
Section 111(m)--provides that section 111 shall not apply with
respect to Title IV of the Federal Mine Safety and Health Act of
1976.
Section 112. Entitlement of Miners.
Section 112--provides that if a mine or an area of a mine is
closed by an order issued under section 104, 105, or 108, all
miners working during the shift when the order was issued who are
idled by such order shall be entitled to full compensation by the
operator at their regular rates of pay for the period they are
idled, but not more than for the balance of the shift. If the
order is not terminated before the next working shift, all miners
on that shift shall be entitled to full compensation by the
operator at their regular rates of pay for the period they are
idled, but not for more than four hours. If the closure results
from an order for failure of the operator to comply with a health
or safety standard, all miners idled by the order shall be fully
compensated by the operator at their regular rates of pay for
such time as they remain idled by the closing or for one week,
whichever is lesser after all interested parties are given an
opportunity for an expedited public hearing and after a final
order issues. When an operator fails to comply with an order
issued under section 104, 105 or 108, all miners employed at the
affected mine who would, by such order, be barred from such mine
or area thereof shall be entitled to full compensation at their
regular rates of pay, in addition to pay received for work
performed after the order was issued, for the period beginning
when the order was issued and ending when the order is complied
with, vacated, or terminated. The Commission shall have
authority to order such compensation under this section when a
miner or his representative files a complaint and after an
opportunity for a hearing subject to a 5 USC 554.
Section 113. Administrative Provisions.
Section 113(a) authorizes and direct the Secretary to
administer this Act through the Mining Enforcement and Safety
Administration, Acting through the Assistant Secretary for Mine
Safety and Health, the Secretary shall have authority to appoint,
subject to civil service laws, such officers and employees as he
deems necessary for the administration of this Act, and to
prescribe powers, duties, and responsibilities of all officers
and employees engaged in administering this act.
Section 113(b) authorizes the Solicitor of Labor to appear for
and represent the Secretary in any civil litigation brought under
this Act, except as provided in 28 U.S. Code 518(a) relating to
litigation before the Supreme Court.
Section 114. The Federal Mine Safety and Health Review
Commission.
Section 114(a) establishes the Federal Mine Safety and Health
Review Commission composed of five members, who shall be
appointed by the President with the advice and consent of the
Senate from among those who are qualified to carry out the
functions of the Commission under this Act. The President shall
designate one of the members to serve as Chairman of the
Commission.
Section 114(b) provides that the terms of the members of the
Commission shall be six years, except that the first appointees
to the Commission shall be appointed for terms of 2, 4, and 6
years; and that if the term of one of these three members shall
become vacant, the successor shall be appointed for the balance
of that term only. This section further provides the reasons for
which a member of the Commission may be removed, namely,
inefficiency, neglect of duty, or malfeasance in office.
The section gives the Chairman the responsibility for the
administrative operations of the Commission, and enables the
Commission to appoint employees necessary for the performance of
its functions and to fix their compensation under the provisions
of 5 U.S. Code Chapter 51 and Chapter 53, subchapter III.
Administrative Law Judges currently assigned to mine safety at
the Arlington, Va, office of the Department of the Interior
Office of Hearings and Appeals are automatically transferred to
the Commission on the effective date of the Act, in grade and
position and authorizes the Chief Administrative Law Judge to
elect to so transfer. The section further provides that
Administrative Law Judges associated with mine health and safety
assigned to the Western offices of the Office of Hearings and
Appeals shall have the option of transferring to the Department
of Labor, under the same conditions, or remain with the
Department of the Interior. The Commission is further authorized
to appoint such Administrative Law Judges as it deems necessary
to carry out the functions of the Commission, and the assignment,
removal and compensation of the Administrative Law Judges is to
be in accordance with 5 U.S. Code, sections 3105, 3344, 5362, and
7521.
Sec. 114(c) provides that the Commission is authorized to
delegate to any group of three of its members, any or all of the
Commission's powers. Two members shall constitute a quorum of
any such designated group.
Section 114(d)(1)--enables an Administrative Law Judge of the
Commission to hear and make determination on any proceeding
instituted before the Commission any motion in connection
therewith which is assigned to such Administrative Law Judge by
the Commission, and requires the Administrative Law Judge to make
a report of any such determination which constitutes his final
determination. The decision of an Administrative Law Judge shall
become the final order of the Commission unless directed to be
reviewed within 40
days in accordance with the rules promulgated under the
provisions of section 114(d)(2) of this Act.
Section 114(d)(2)--directs the Commission to prescribe rules of
procedures for its review of the Administrative Law Judge's
decisions in cases under this Act which shall meet the following
standards for review.
(A) Petitions for Discretionary Review (i) Within 30 days of
its issuance, any affected or aggrieved person may file a
petition for discretionary review by the Commission of an
administrative judge's decision. Such review is not a matter of
right but of the Commission's sound discretion.
(ii) Such petitions shall be filed only upon one or more to the
following grounds:
(1) A finding or conclusion of material fact is not supported
by substantial evidence.
(2) A necessary legal conclusion is erroneous.
(3) The decision is contrary to law, or to the Commission's
promulgated rules and decisions.
(4) A substantial question of law, policy, or discretion is
involved.
(5) A prejudicial error was committed in the proceedings.
(iii) Indicates some technical requirements of such petitions.
Also except for good cause shown no assignment of error shall
rely on questions of fact or law upon which the administrative
law judge has not had opportunity to pass. The Commission's
review shall be granted by an affirmative vote of two of the
Commissioners present and voting. If granted review shall be
limited to questions raised by the petitioner.
(B) Review by the Commission at its own Initiative Within 30
days after the issuance of a decision of an administrative law
judge, the Commission, by affirmative vote of two of the
Commissioners present and voting, may review such case but only
on the grounds that the decision may be contrary to law or
Commission policy or that a novel question of policy has been
presented. Such grounds shall be specifically stated in the
order to review. If a party's petition for discretionary review
has been granted, the Commission shall not raise or consider
additional issues in such review proceedings in compliance with
this paragraph.
(C) Scope of Review.--For purposes of Commission review under
paragraphs (A) and (B) of this subsection, the record shall
include (1) all matters constituting the record upon which the
decision of the administrative law judge was based, (2) rulings
upon proposed findings and conclusions, (3) the decision of the
administrative law judge, (4) any petition for discretionary
review, responses thereto, and the Commission's order for review,
and (5) briefs filed on review. No other material shall be
considered by the Commission upon review. The Commission may
remand the case to the administrative law judge or affirm, set
aside, or modify his decision or order.
Sec. 114(e)--provides that at hearings before the Commission
or its Administrative Law Judges, attendance and testimony of
witnesses and the production of book and documents may be
compelled. The Commission or Administrative Law Judge may also
compel testimony to be taken by deposition. Witnesses are to be
paid the same fees and mileage that are paid in U.S. courts.
Upon application to the appropriate district court, such court
can require a person to appear, testify or produce evidence as
ordered by the Commission or the Administrative Law Judge. Any
failure to obey such court order is punishable as contempt.
Section 115. Authorization and Appropriations.
Section 115--authorized appropriations of any moneys in the
Treasury not otherwise appropriated that may be necessary to
carry out the provisions of this title.
Section 116. Mandatory Health and Safety Training.
Section 116(a)--requires each operator to have a safety
training program which shall be approved by the Secretary, and
requires the Secretary, within 180 days of enactment of this Act,
to promulgate regulations dealing with the requirements of such
training programs, but which require not less than that:
(1) new underground miners are to receive no less than 40 hours
of training, including use of the self-rescuer and respiratory
devices, hazard recognition, escapeways, walk around training,
emergency procedures, basic ventilation and roof control
electrical hazards, first aid, and the health and safety aspects
of the particular job to which they will be assigned.
(2) new surface miners to receive no less than 24 hours of
training to include self rescue and other respiratory devices,
hazard recognition and emergency procedures, electrical hazards,
first aid, walk around training, and safety and health hazards of
the job to which they will be assigned.
(3) no less than 8 hours of refresher training annually,
except that existing miners are to receive this refresher
training within 90 days after approval of the operator's safety
training program; and
(4) training for any miner who is being reassigned to a new
task in the specific safety and health aspects of that task.
Section 116(b)--requires that the training given to miners
under this section is to be given during normal working hours,
and that miners shall be paid at the normal rate of pay for
attending such training, and that if the training is to be given
away from the normal work place, miners are to be compensated
for the expense attendant to taking such training.
Section 116(c)--requires that upon the completion of each
training program the operator shall certify that the miner
received that training, and that such certification shall be on a
form approved by the Secretary, which form shall conspicuously
indicate that false certification of training shall be punishable
under section 111(g) and (h) of the Act. The section further
requires the operator to maintain at the mine, available for
inspection, a copy of this certification, and that the operator
shall give a copy of the certificate to each miner upon
completion of the training, and when that miner shall leave the
operator's employ.
Section 116(d)--authorizes the Secretary to promulgate
appropriate safety and health training standards for miners
engaged in construction work.
Section 116(e)--requires the Secretary, within 18 days after
the effective date to publish regulations requiring that mine
rescue team capability be provided for rescue and recovery work
at each underground mine.
Section 202. Amendments with Respect to Interim Mandatory
Health Standards.
Section 202(a)--amends Section 202(e) of the Federal Coal Mine
Health and Safety Act of 1969 to provide that references to
respirable dust shall mean average concentrations of respirable
dust measured with a device approved by the Secretary of Health,
Education and Welfare.
Section 202(b)--amends Section 318 of the Federal Coal Mine
Health and Safety Act of 1969 by striking subsection (k) thereof.
Section 203--Amendments with respect to interim mandatory
safety standards for underground coal mines
Section 203--amends Section 301 of the Federal Coal Mine Health
and Safety Act of 1969 by striking subsections (c) and (d)
thereof.
Title III--Miscellaneous Provisions
Section 301. Transfer Matters.
Section 301(a)--transfers the functions of the Secretary of the
Interior under the Federal Coal Mine Health and Safety Act of
1969 as amended, except in the safety research function and the
Federal Metallic and Nonmetallic Mine Safety Act of 1966 to the
Secretary of Labor, except those expressly transferred to the
Commission by this Act.
Section 301(b)(1)--provides that the mandatory standards
relating to mines issued by the Secretary of the Interior under
the Federal Metal and Nonmetallic Mine Safety Act of 1966 and
standards and regulations under the Federal Coal Mine Health and
Safety Act of 1969 which are in effect on the date of enactment
of this Act shall remain in effect as mandatory standards
applicable to metallic and nonmetallic mines and coal mines
respectively under the Federal Mine Safety and Health Act of
1977.
Section 301(b)(2)--provides that within 60 days of enactment of
the Amendments Act of 1976, the Secretary shall establish an
advisory committee under section 103 which shall review the
advisory standards promulgated under the 1966 Metal Act, and
within 180 days recommend to the Secretary which of these
standards or any modifications thereof which does not diminish
substantially the health and safety of miners shall be
promulgated as permanent standards. The Secretary shall publish
the recommendations of the Advisory Committee within 60 days, and
afford interested persons a period of 25 days to comment. Within
30 days after the close of the comment period, the Secretary
shall publish in the Federal Register the standard he shall
adopt, as modified as a result of the comments, or if he decides
not to publish such standard, his explanation therefore.
Section 301(c)(1)--transfers to the Department of Labor or the
Commission, as appropriate, all personnel, property, records,
obligations, unexpended balances of appropriations, and
commitments which are used primarily with respect to any
transferred function under section 301(a). The transfer of
personnel pursuant to this paragraph shall be without reduction
in classification or compensation for one year after such
transfer, except that the Secretary shall have full
authority to assign personnel during such one-year period in
order to efficiently carry out functions transferred to him under
this Act.
Section 301(c)(2)--provides that all orders, decisions,
determinations, rules, regulations, permits, contracts,
certificates, licenses, and privileges (A) which have been
issued, made, granted, or allowed to become effective in the
exercise of functions which are transferred under this section by
any department or agency or any functions of which are
transferred by this section and (B) which are in effect when this
section takes effect, shall continue in effect according to their
term until modified, terminated, superseded, set aside, or
repealed by the Secretary, the Commission, any court of competent
jurisdiction, or operation of law.
Section 301(c)(3)--provides that the provisions of this section
shall not affect any proceedings pending at the time this section
takes effect before any department or agency, functions of which
are transferred by this section; except that such proceedings as
they relate to transferred functions shall be continued before
the Secretary or the Commission. Orders shall be issued in such
proceedings, appeals shall be taken therefrom, and payments shall
be made pursuant to such orders, as if this section had not been
enacted, and orders issued in any such proceedings shall continue
in effect until modified, terminated, superseded, or repealed by
the Secretary, the Commission, a court of competent jurisdiction,
or operation of law.
Section 301(c)(4)--provides that the provisions of this section
shall not affect suits commenced prior to this section's
effective date and in all such suits proceedings shall be had,
appeals taken, and judgments rendered, as if this section had not
been enacted; except that if before this section's effective
date, any department or agency (or officer thereof in his
official capacity) is a party to a suit involving functions
transferred to the Secretary, then such suit shall be continued
by the Secretary. No cause of action, and no suit action, or
other proceeding, by or against any department or agency (or
officer thereof in his official capacity), functions of which are
transferred by this section, shall abate by reason of this
section's enactment. Cause of action, suits, actions, or other
proceedings may be asserted by or against the United States or
the Secretary as appropriate and in any litigation pending when
this section takes effect, the court may at any time, on its own
motion or that of any party, enter an order which will give
effect to the provisions of this paragraph.
Section 301(d)--provides that for purposes of this section, the
term "function" includes power and duty, and the transfer of a
function of an agency or the head of a department shall also be a
transfer of all functions which are exercised by any office or
officer of such agency or department.
Section 301(e)--authorizes the Director of the Office of
Management and Budget in consultation with the Secretary and the
Secretary of the Interior to make determinations as necessary
regarding the disposition of assets, personal positions,
appropriations and the like arising from the transfer of
responsibilities between the two Departments.
Section 302. Mining Enforcement and Safety Administration.
Section 302(a)--establishes in the Labor Department a Mining
Enforcement and Safety Administration to be headed by an
Assistant Secretary of Labor for Mine Safety and Health appointed
by the President, with the Senate's advice and consent. The Secretary
is authorized and directed to carry out his functions under the
Act through the Administration except as otherwise provided.
Section 302(b)--amends 5 United States Code 5315 by adding
"[109] Assistant Secretary of Labor for Mine Safety and Health."
Section 302(c)(1)--amends 5 U.S.C. 5314 by adding "(64)
Chairman, Federal Mine Safety and Health Review Commission."
Section 302(c)(2)--amends 5 U.S.C. 5315 by adding "(109
Members, Federal Mine Safety and Health Review Commission."
Section 303. Amendments with Respect to Mine Safety and Health
Administration.
Section 303(a)(1)--applies the research provisions of section
501(a) of the Coal Act to all mines covered by this Act; and
authorizes the Secretary of the Interior to conduct safety
research. The Secretary of Health, Education and Welfare to
conduct health research.
Section 303(a)(2)--further amends Section 501(a) by
establishing authority for the Secretaries of the Interior and
Health, Education and Welfare to, upon the specific written
request of an operator or authorized representative of miners,
determine whether any substance or physical agent found in a mine
has potentially harmful effects, and to so inform the operators
and miners of such findings as soon as possible.
Section 303(a)(3)--amends section 501(b) such that research
activities relating to mine health will be carried out by the
Secretary of Health, Education, and Welfare through the National
Institute of Occupational Safety and Health, and that the
research activities relating to safety are extended to all mines
now covered by this Act, is to be performed by the Secretary of
the Interior in coordination with the Secretary.
Section 303(a)(4--details the authorities of the Secretaries
of the Interior and Health, Education, and Welfare to conduct
research.
Section 303(a)(5)--extends to all mines covered by this Act the
Secretary of Health, Education, and Welfare's authorization under
section 501(d) to conduct studies and research involving the
protection of life and prevention of diseases relating to certain
non-miners who work with or around mine products.
Section 303(a)(6)--increases the safety research appropriation
authorization to reflect the increased scope of research activity
under Section 501.
Section 303(a)(7)--amends Section 501 by requiring the
Secretary to compile accurate statistics on work injuries and
illnesses occurring in mines subject to the Federal Mine Safety
and Health Act of 1976.
Section 303(b)--extends the training and education provisions of
section 502 to all mines now covered by the Act.
Section 303(c)(1)--amends section 503(a) to authorize the
Secretary in coordination with the Secretary of Health,
Education, and Welfare, to make grants to any State in which
mining takes place.
Section 303(c)(2)--applies to the criteria for approval of
State grant applications to all mining states.
Section 303(d)(1)--expands the exchange of State and Federal
inspection reports provided for in section 503(f) to include
inspection reports of all mines covered by this Act.
Section 303(d)(2)--extends to any mining State the 80 percent
limit on State grants in any fiscal year provided for in section
503(g).
Section 303(d)(3)--increases the appropriation authorization
for such state grants to reflect the expanded State eligibility
for such grants.
Section 303(e)(1)--revises the qualifications for mine
inspectors under section 505 to include practical experience in
mining in lieu of "practical experience in the mining of coal."
Section 303(e)(2)--amends Section 505 by requiting that mine
inspectors, to the extent feasible, be qualified with at least 5
years practical mining experience with consideration in
assignments given to previous experience in the particular type
of mine to be inspected.
Section 303(f) amends section 506(b) such that any State law or
regulation providing for health and safety standards applicable
to any mine now covered by this Act and that (1) are more
stringent than Federal law, or (2) apply to any area not covered
by Federal law, shall not be held to be in conflict with this
Act.
Section 303(g)(1) amends section 511(a) such that the
Secretary's annual report shall cover health and safety relating
to all mines now covered by this Act.
Section 303(g)(2) amends section 511(b) such that the annual
report of the Secretary of Health Education, and Welfare shall
cover health matters relating to all mines covered by this Act.
Section 303(h)--amends Section 502 by adding the following new
section:
(c)(1) The National Mine Health and Safety Academy is to be
maintained as an agency of the Interior Department. The Academy
is responsible for mine safety and health inspectors' training
and technical support personnel training. The Academy is
authorized to enter into cooperative educational and training
agreements.
(c)(2) provides that the Academy shall use the facilities and
personnel of the Interior Department and other personnel as
mutually agreed upon by the Secretaries of Labor and Interior.
Officers and employees of the Academy may be appointed by the
Secretary of Interior.
CHANGES IN EXISTING LAW
In compliance with subsection (4) or rule XXIX of the Standing
Rules of the Senate, changes in existing law made by sections 1
through 9 and titles I through VI of the bill, as reported, are
shown as follows (existing law proposed to be omitted is enclosed
in black brackets; new matter printed in italic).
[The remainder of the Senate Report is not included in this
document.]
 
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