FEDERAL MINE SAFETY AND HEALTH ACT OF 1977
MAY 13, 1977. -- Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed.
Mr. PERKINS, from the Committee on Education and Labor,
submitted the following
Including cost estimates of the Congressional Budget Office
[To accompany H.R. 4287]
The Committee on Education and Labor to whom was referred the bill (H.R. 4287) to promote safety and health in the industry, to prevent recurring disasters in the mining industry, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.
The amendment strikes out all after the enacting clause of the bill and inserts a new text which appears in italic type in the reported bill.
Never before have the Nation's 11,790 metal and nonmetal mines and mills and their 274,540 workers been brought together with the 5,452 coal mines and cleaning plants and their 211,871 employees under one legislative canopy. Yet the juncture is both natural and beneficial, especially to metal and nonmetal miners who have suffered in relative silence through nearly 100 catastrophies since the turn of the century, in which 5 or more miners were killed in a single accident.
Mining represents a small segment of the working population, yet the operation is of a nature that is so unique, so complex, and so hazardous as to not fit neatly under the Occupational Safety and Health Act. A miner's chances of getting killed on the job are more than eight times as great as those of a laborer in manufacturing, according to the National Safety Council. Increased emphasis by this country on coal and mineral production to meet the demand for energy, constructed facilities and manufactured goods, will cause new mines to appear and existing mines to be more thoroughly exploited. Studies have shown that accelerated emphasis on production tends to push up both fatality and injury rates among the miners.
The Education and Labor Committee has reported out the "Federal Mine Safety and Health Amendments Act of 1977" in hopes of countering this tendency and lowering the existing injury and fatality rates among all miners. This bill will rename the Federal Coal Mine Health and Safety Act of 1969 as the Federal Mine Safety and Health Act of 1977 and amend it to bring metal and nonmetal miners under its jurisdiction. The Metal and Non-Metallic Mine Safety Act of 1966 would be repealed. The Secretary responsible for the health and safety of miners will no longer be the Secretary of the Interior, but rather the Secretary of Labor, who represents an agency that puts the welfare of workers above all other considerations. The committee believes that by transferring administration of the miner health and safety program, and by upgrading legislative provisions applicable to metal and nonmetal miners through consolidation of all miners under one safety law, the Nation will be better able to meet the dual objectives of increased production of mineral and energy resources, and protection of the sacred lives of those members of our society who toil in the mines to keep our country running efficiently.
On March 3, 1891, Congress passed "An Act for the protection of the lives of miners in the Territories" (51st Congress, Chapter 564). This was the first Federal legislation governing safety standards and inspection practices in the Nation's coal mines.
The act required the President to appoint a mine inspector to make a careful and thorough inspection of each coal mine operated in the territory and report at least annually to the Secretary of the Interior on the condition of each such coal mine. Specifications regarding ventilation shafts, machinery, and safety equipment for miners were among subjects covered by the standards contained in the act. The law provided for right of entry of the inspector, and it provided for a mandatory penalty "not to exceed 500 dollars" for "any mine owner or manager who shall continue to operate a mine after failure to comply with the requirements of this act and after the expiration of the period named in the notice provided for in section four."
The first Federal law to protect the safety and health of noncoal miners was not passed for another 75 years. By that time there were nearly twice as many metal and nonmetal as coal miners, and nearly three times as many metal and nonmetal mines as coal mines.
It is not known how the number of metal and nonmetal mining fatalities compared with those among coal miners in the first half of this century, because the Department of the Interior did not require all metal and nonmetal mine operators to report fatalities until 1958. However, since 1958 a total of 3,269 metal and nonmetal miners have been killed on the job, compared with 4,471 fatalities among coal miners. In 1975, according to the National Safety Council, the death rate for all mining was more than four times as great as the average for all industries. These statistics suggest that the two sectors of the mining industry, which the National Safety Council ranks as the most hazardous of the eight major industry groupings, should merit similar amounts of congressional attention and concern.
Yet, over the years metal and nonmetal mining has not received attention equal to that imparted to coal mining. Even at present, the Federal Metal and Nonmetallic Mine Safety Act affords considerably less protection to the miners it covers than the Federal Coal Mine Health and Safety Act of 1969 does for coal miners. In addition, metal and nonmetal mine safety standards promulgated are typically more general and appear to be less stringently enforced than coal mine standards, because metal and nonmetal mining has traditionally, though inaccurately, been considered less hazardous than coal mining.
A number of reasons explain why coal miners received protective Federal health and safety legislation long before noncoal miners.
First, while coal mining produces essentially one commodity, noncoal mining produces about 70 separate minerals. The major ones are copper, gold, silver, iron, lead, zinc, and uranium for the metals; and clay, gypsum, phosphate rock, potash, and salt for the nonmetals. Because of the homogeneous nature of the product, coal miners have more rapidly united into a cohesive lobbying force than have noncoal miners.
Second, statistics distort the hazardousness of underground and even surface metal and nonmetal mining operations, as compared with the coal industry, because of differing proportions of works in the various sectors of the respective mining industries. Metal and nonmetal mining has 15 percent of its miners in underground mines, 50 percent in surface mines, and 35 percent in post-mining milling operations. Coal mining, on the other hand, has 65 percent of its workforce in underground mines, 25 percent in surface mines, and 10 percent in nonmining activities, including work in independent shops and mechanical cleaning plants. There are no major milling type operations connected with coal mining.
Because of these differing proportions of workers, although the fatality rate for underground metal and nonmetal miners in 0.54 fatalities per million manhours worked significantly above 0.37 fatalities per million manhours worked for underground coal miners, the industry fatality rate for metal and nonmetal mining is only 0.25 fatalities per million manhours worked, considerably lower than the 0.37 fatalities per million man hours worked for the entire coal industry. However, the rates published and disseminated are generally the whole industry rates. Therefore, the mass of milling operations, peculiar to the metal and nonmetal industry, and not mining operations in the true sense of the word, has tended to obscure the real dangers inherent in metal and nonmetal mining.
Third, disasters in metal and nonmetal mines are varied and diverse, both in the type of mine that attack and in the way the disasters manifest themselves. Metal and nonmetal tragedies can occur in ore mines, copper mines, salt mines, or rock quarries in such forms as floods, fires, explosions, or roof falls. However, when mass fatalities strike in the coal industry, the words "coal mine" and "explosion" leap out again and again, ringing nationally with repetitive force and cumulative impact, thereby spurring congressional action.
For example, in 1940, 257 coal miners died in four separate methane gas explosions. This provided the impetus needed to enact Federal legislation which had been pending for several years. In 1941, Congress quickly passed the Coal Mine Health and Safety Act. In December, 1951, 119 coal miners died in another explosion of naturally occurring methane gas in a coal mine in West Frankfort, Ill. The following year Congress amended and strengthened the 1941 act. Again, in November of 1968 still another methane gas explosion in a coal mine in Farmington, W. Va., killed 78 men. Within a year, Congress passed the new Federal Coal Mine Health and Safety Act of 1969.
In contrast, comprehensive metal and nonmetal mining health and safety legislation did not result from or follow soon after any one such large scale disaster, although in 1910 an explosion of a powder magazine in the Alaska Mexican gold mine in Treadwell, Alaska, claimed 37 lives. In 1917 a mine fire in the Granite Mountain copper mine in Butte, Mont., took 163 lives. In 1922, a mine fire of unknown origin in the Argonaut gold mine in Jackson, Calif., killed 47 workers. In 1924, an inrush of water into the Milford manganiferous iron ore mine in Crosby, Minn., took the lives of 41 workers. In 1926 a mine flood in the Barnes Hecker iron mine in Ishpeming, Mich., claimed 51 lives. And in 1942 a limestone quarry blast in the Sandts Eddy quarry in Allentown, Pa. killed 31.
Largely responsible for the enactment of the Metal and Nonmetallic Mine Safety Act in 1966, rather, were the results of a study made by special Mine Safety Board appointed by the Secretary of the Interior as required under Public Law 87300, passed by Congress in 1961 in the wake of mounting evidence of a continuing high rate of serious injuries and deaths in the Nation's metal and nonmetal mines.
The 18-month survey, conducted between 1961 and 1963, indicated the widespread existence of correctable hazards to life and health in high casualty rate suffered by working miners from dangerous conditions beyond their own control, and the ineffectiveness of State and local efforts to reduce mine health and safety hazards. More specifically, the House report of the bill that became the Metal and Nonmetallic Mine Safety Act states with regard to the completed study:1
On the basis of this analysis, 50.7 percent of the fatal injuries were classified as resulting "from circumstances over which the workmen had no control, but which were within the scope and range of supervisory responsibility." That is: approximately half of the 270 men killed were classified as victims of inadequate supervision, failure to provide safety devices, defective equipment, collapses of roof which supervisors permitted to be unsupported, adequate ventilation, and other hazardous environmental conditions reasonably within the power of management to prevent.
Need for a law with strong enforcement provisions was supported by evidence produced in the follow-up portion of the study:2
Reinspection of these mines indicates a somewhat lax attitude on the part of many mine operators toward hazards that had been called to their attention. More than 700 mines were inspected a second time during the course of the study. Only about half of the thousands of hazards revealed on initial inspection, and recommended for elimination in written reports given by the Bureau of Mine inspectors to the mine operators, were found to have been corrected in the interim.
The Federal Metal and Nonmetallic Mine Safety Act which resulted was hailed as landmark legislation in that it provided the first, Federal health and safety protection for non-coal miners. However, the weaknesses of the 1966 act were soon to become apparent. In the eyes of many miners' organizations the major problem from which others sprang was that responsibility for metal and nonmetal mining health and safety was given to an Assistant Secretary within the Bureau of Mines who had other responsibilities for production of the various minerals and fuels. As time passed, these groups felt that the conflicting demands being put on the Assistant Secretary for increased mineral production on one hand, and increased health and safety protection for miners on the other, were being resolved at the expense of the miners.
These feelings were reinforced as more disasters struck. In 1968, there was fire in the Cargill salt mine in Belle Isle, La. Twenty miners died of carbon monoxide poisoning. One more succumbed to a massive skull fracture. There were no survivors on that shift. Neither the cause of the fire nor the point of origin was ever determined. A complete mine inspection had never been made by officials from the Bureau of Mines prior to the fire, although partial inspections had resulted in recommendations for safety improvement, but little corrective action. Firefighting equipment was lacking and mine rescue teams were not maintained by any of the salt mining companies in the area.
Three years later, in 1971, seven miners died in succession in the Barnett Complex, an underground fluorspar -lead-zinc operation in Rosiclare, Ill., as the result of exposure to naturally occurring hydrogen sulfide gas. The gas collects where organic matter decomposes in confined spaces, and can dissolve in nearby underground water reservoirs. The fumes are released from the water as it pours out of drill holes during mining operations to locate an ore vein. The fatalities occurred because one miner, although reportedly warned by other miner, wandered into a gassy area where a replacement fan had just been installed but not turned on to clear out the poisonous air. When the first miner failed to come back, his brother went to look for him. When neither man returned, others followed in search until seven men were fatally overcome by the chemical vapors.
But it was the 1972 Sunshine silver mine fire where carbon monoxide inhalation snuffed out the lives of 91 miners in Kellogg, Idaho, that spurred the Department of the Interior response to the weaknesses inherent in the administrative setup of the safety and health program for metal and nonmetal miners.
Smoke from the smoldering fire fed by scrap timber previously used for ground support was detected around 11:40 A.M. on May 2 while the principal operating officials of the Sunshine Mining Co. were 45 miles away attending their annual stockholders' meeting. In their absence, no designated individual was in charge of the entire operation.
The Bureau of Mines' final report of the Sunshine Mine disaster lists nine major factors contributing to its severity, including delay of evacuation while company personnel searched for the fire, failure of the company officials to train their miners in self-rescue and survival techniques, or to conduct evacuation drills, and a ventilation system in the mine which contaminated the main intake airways with smoke and carbon monoxide after the fire had begun.
Subsequently, in 1973, under heavy criticism for not having promulgated and enforced sufficient lifesaving standards to protect metal and nonmetal miners from these and other disasters, the Department of the Interior pulled mining safety and health enforcement officials from the Bureau of Mines and established them as a distinct entity called the Mining Enforcement and Safety Administration (MESA) in a separate building apart from other Department of the Interior and Bureau of Mines structures. MESA, however, was retained as the responsibility of the same Assistant Secretary of the Interior who had previously overseen the safety and health enforcement operation.
Since the establishment of MESA as an independent organization within the Department of Interior, there have been no new metal and nonmetal mining disasters in which five or more miners were killed at one time. In 1975 and 1976, particularly, the nonfatal disabling injury and fatality rates for metal and nonmetal mines have shown a distinct drop over previous years.
A serious problem remains, however, when one views the safety record for metal and nonmetal mining relative to that for coal mining. For the 10year period since the Metal and Nonmetallic Mine Safety Act was passed, 1967 through 1976, the overall fatality rate for metal and nonmetal miners, including those in underground mines, surface mines (including open pit and sand and gravel mines, and stone quarries) and mills, averaged slightly over half that for coal miners, who work in underground mines, surface mines, and mechanical cleaning plants. However, for the most recent 5year period, 1972 through 1976, the average fatality rate for all metal and nonmetal miners has jumped to more than 75 percent of that for all coal miners.
More alarming is the fact that in three areas the rates for casualties among metal and nonmetal miners are surpassing those for their counterparts in coal mining. For 5 years straight, 1972 through 1976, the mining population has exceeded that for the underground coal mining sector. In 1972, 1973, and 1974, the fatality rate for surface metal and nonmetal miners has exceeded that for surface coal miners. In 2 out of the last 3 years, 1974 and 1975, the nonfatal disabling injury rates for underground metal and nonmetal miners have exceeded those for underground coal miners. These statistics are displayed on the chart below.
FATALITY AND INJURY FREQUENCY RATES IN METAL AND NONMETAL,
AND COAL UNDERGROUND AND SURFACE MINES, 1967-76
Metal and nonmetal mines Coal mines
Injury frequency rates Injury frequency rates
per million manhours per million manhours
Number Nonfatal Number Nonfatal
Year and type of mine employed Fatal disabling employed Fatal disabling
Underground ..... 37,771 0.86 41.28 103,993 1.05 47.57
Surface ......... 117,074 .33 18.48 24,699 .52 23.07
Underground ..... 34,386 1.02 41.00 98,831 1.63 46.99
Surface ......... 114,415 .35 18.93 25,071 .65 24.97
Underground ..... 33,568 .87 42.16 97,395 .95 48.77
Surface ......... 114,415 .37 18.49 25,872 .64 22.22
Underground ..... 34,014 .80 46.03 102,379 1.20 51.79
Surface ......... 113,388 .31 20.06 31,726 .58 25.60
Underground ..... 32,524 .80 48.01 97,740 .86 56.40
Surface ......... 113,000 .30 19.73 33,781 .41 26.81
Underground ..... (1) 2.10 43.31 109,396 .68 55.32
Surface ......... (1) .39 18.57 35,696 .38 24.95
Underground ..... 34,733 .74 44.76 100,843 .56 48.80
Surface ......... 127,776 .44 16.29 30,708 .28 21.14
Underground ..... 38,253 .68 44.41 113,169 .51 34.95
Surface ......... 142,709 .37 16.57 44,743 .35 16.85
Underground ..... 42,085 .56 37.90 137,060 .47 37.13
Surface ......... 146,103 .26 15.17 58,170 .36 17.86
Underground ..... 40,012 .54 33.33 135,977 .37 45.31
Surface ......... 134,013 .26 12.04 55,491 .29 19.01
1Comparable data not available.
While much attention is quite rightly focused upon the harsh safety statistics in mining, little attention has been directed at the dangerous health conditions existing in many noncoal mines. In testimony before the committee, NIOSH declared:
Metal miners extract about 50 commodities including copper, mercury, gold, silver, lead, zinc, uranium, and asbestos. These miners are exposed to perhaps an additional 50 potentially toxic substances and harmful physical agents during mining processes. Adequate information does not exist on the levels at which most of these substances are present in mines. As a group, workers in metal mines and mills are also exposed to an even wider range of pneumoconiosis-producing dusts than are coal miners. They are also exposed to a number of carcinogens, including asbestos, arsenic, uranium and beryllium.
HISTORY OF H.R. 4287 AND COMMITTEE DELIBERATION
The passage of H.R. 4287 in the 95th Congress is an attempt to bring about changes which will reduce metal and nonmetal mining fatalities and injuries--both in absolute terms and in relation to those occurring in the coal mining industry.
It corrects a major deficiency of H.R. 13555 which passed the House in the 94th Congress on July 28, 1976. H.R. 13555 upgraded the provisions of the Metal and Nonmetallic Mine Safety Act and transferred responsibility for the health and safety of the Nation's coal, as well as metal and nonmetal, miners from the Department of the Interior to the Department of Labor.
The deficiency of H.R. 13555 was that it sustained the tradition of separate legislative authorities for metal and nonmetal mine health and safety on one hand, and coal mine health and safety on the other. In doing this, it failed to meet the longstanding need for equalizing health and safety protection for all miners.
H.R. 4287 would correct this weakness. In passing it, the committee concluded that separate is not equal in providing distinct legislation for metal and nonmetal miners apart from that protecting the health and safety of coal miners.
Mr. Frank McKee, treasurer-elect of the United Steelworkers of America, emphasized the need for a single mine safety and health law:
There is absolutely no reason why miners in one segment of the mining industry should be given different statutory rights than miners in another segment of the industry.
Interior Secretary Cecil D. Andrus affirmed this need for legislative unification in his testimony on H.R. 4287 before the Compensation, Health and Safety Subcommittee on April 1, 1977, when he said:
Industry opposition to a single law has always been voiced in terms of the need for flexibility due to differences in coal and noncoal mining. However, to the extent that there really is the need for such flexibility, it applies only to the specific occupational safety and health standards. But there is no need for variation in the actual procedure for developing standards, nor in the enforcement methods, nor in the worker rights. Those procedures and those rights can be and should be applied uniformly throughout the mining industry.
The standards themselves do vary according to applicability and need among the different mining sectors. Even now, separate vertical standards are applied to the different types of mining covered by the single Metal and Nonmetallic Act (i.e., underground, surface, and sand and gravel). It is important to emphasize that H.R. 4287 does not legislate standards, nor would it cause coal standards to be applied to noncoal mines or vice versa. The bill would, however, establish uniform procedures for developing those standards and for enforcing them, and that is exactly as it should be in order to provide all miners equal protection under the law.
There are a number of essential elements in the bill that must not be compromised including....one statute for both coal and metal and nonmetal mines, affording equal protection for all miners and a common regulatory program for all operators.
H.R. 4287 is stronger than H.R. 13555 in other ways as well. It provides for mandatory penalties to accompany citations issued for health and safety violations. H.R. 13555 provided only for permissive dollar penalties. The committee believes that mandatory penalties will provide a greater incentive for mine operators to achieve initial compliance with standards promulgated. In adopting the same mandatory penalty formula of the Coal Act, the committee recognizes no difference between a violation of a standard in a coal mine and a noncoal mine. By replacing the discretionary penalties of H.R. 13555 with mandatory penalties, H.R. 4287 eliminates the uncertainty and uneven imposition of penalties. The inducement to compliance is more pressing and the operator will be less inclined to take the chance of not being penalized. The mandatory penalty system provides a greater degree of predictability of enforcement reaction if a violation does occur.
H.R. 4287 as passed by the committee is limited version of a more comprehensive bill, coauthored by Chairman Gaydos of the Compensation, Health and Safety Subcommittee which has official jurisdiction over mine health and safety, and Chairman Dent of the Labor Standards Subcommittee, to which was temporarily ceded jurisdiction over coal mine health and safety in 1968. The original Gaydos-Dent version of H.R. 4287 would have amended a number of provisions of the Federal Coal Mine Health and Safety Act of 1969 as well as unified metal and nonmetal and coal mining health and safety under a single legislative umbrella.
As passed in its amended form, H.R. 4287 does three essential things. First, it provides the same protection to metal and nonmetal miners as is afforded coal miners under the 1969 Coal Act.
Second, it transfers all functions of the Secretary of the Interior under the Federal Coal Mine Health and Safety Act of 1969 to the Secretary of Labor.
Third, it repeals the Federal Metal and Nonmetallic Mine Safety Act.
After holding hearings on the original Gaydos-Dent bill, H.R. 4287, the committee voted out the limited version of the bill as described above. The limited version, which the committee adopted, pertained primarily to deleting basic reforms of the provisions of the 1969 Coal Act. The committee felt, however, that consolidation of the mine safety laws and transfer of the Mining Enforcement and Safety Administration from the Department of the Interior was a big step. The personnel who have been administering these laws for a number of years are now going to be under new supervision which will place greater emphasis on developing more specific standards and stringently enforcing them in order to solve the challenge of reducing the fatalities and injuries, especially in metal and nonmetal mines. The committee believes that careful application of the provisions of the Coal Act to metal and nonmetal mines will accomplish the objective efficiently. However, it should be noted that the Coal Act provisions pertaining to specific workplace safety and health standards for coal mines are not made applicable to noncoal mines. The new act distinguishes between statutory provisions which empower the Labor Department with enforcement authority to protect all miners, and statutory standards, which the Congress enacted in 1969 to correct specific workplace conditions in coal mines. It is only the statutory provisions of the Coal Act which are made applicable to all mines, and not the statutory standards. In addition, promulgated standards, which evolved through the rulemaking process of the Coal Act and the Metal and Nonmetallic Act, and which apply to specific workplace conditions, respectively, in coal and noncoal mines are not made universally applicable to all mines. Promulgated standards will retain the same scope of coverage as they did before the passage of this bill.
The committee, in deliberating over the provisions of the 1969 Coal Act, did determine that those provisions should be made applicable to all miners. The committee, during its hearing sessions in the Compensation, Health and Safety and Labor Standards Subcommittees did review the effectiveness of the rulemaking procedure, inspection function, penalty system, judicial review prerogatives, and the contested citation procedure. Many of these provisions remained untouched in H.R. 4287 as introduced. However, since Labor Standards Subcommittee has announced a desire to continue oversight hearings on the improvements in the 1969 Coal Act, as advocated by the original H.R. 4287 bill, the committee decided that at least the level of statutory protection already achieved by the 1969 Coal Act should be reaffirmed pending additional oversight hearings regarding the efficacy of the changes. The details of the bill which the committee reported out did, therefore, undergo substantial hearing, with many witnesses, including the Administration, advocating further strengthening. The committee, however, made a practical decision to suspend decision on the need for reform until the Labor Standards Subcommittee completes its review. Nevertheless, because of the concern with manifold health hazards experienced by the nation's miners, the committee did accept one substantive amendment to the 1969 Coal Act, whereby NIOSH is directed to prepare a toxic substance list of items found in the mines and to develop the necessary criteria documents and standards to be promulgated under the, rulemaking procedure of the act.
DISEASES AND HEALTH HAZARDS CONNECTED WITH METAL AND
The primary disease afflicting coal miners is coal miners' pneumoconiosis or "black lung" as it is commonly called. It is a chronic chest disease caused by the accumulation of fine coal dust particles in the lung. It can lead to severe disability and premature death. The Federal Coal Mine Health and Safety Act of 1969 provides for compensation of coal miners disabled by it, and for benefits to be paid to survivors of miners who die from it.
Metal and nonmetal miners have never been compensated for their diseases in the same way. In fact, no comprehensive, all inclusive study has ever been made of the diseases that affect metal and nonmetal miners. Nor does there exist a complete listing of the toxic substances found in metal and nonmetal mines. Yet some of the diseases and afflictions from which metal and nonmetal miners suffer have names and have been documented.
Silicosis is one of several metal and nonmetal mining diseases that are vaguely similar to coal miners' pneumoconiosis. Almost all mines contain varying proportions of a number of minerals deposited together. Silica rock, frequently in the form of quartz, or silicon dioxide, is contained to some degree in most mines.
Silicosis occurs when crystalline silica dust is inhaled and retained in the lungs, causing scar tissue to form. The inelastic scars force the lungs to work harder to provide an adequate air supply. They also block the transfer of oxygen to the blood. The first symptoms of silicosis are shortness of breath and coughing. The disease may show up on chest X-rays as a shadow on the lungs. Silica dust is much more toxic than coal dust in that considerably less silica, when inhaled, will cause silicosis than the amount of coal dust which must be inhaled before pneumoconiosis occurs. However, once silicosis is contracted, the symptoms, progression, and final outcome are similar to the pattern followed with pneumoconiosis.
The real danger with silicosis may be with surface mines more than with underground mines, because great amounts of water are used in connection with underground mining to lower the concentrations of airborne dust. Similar care is not taken in connection with surface mines. It is not known exactly how many miners suffer from silicosis. However, a 195860 study conducted jointly by the Public Health Service and the Bureau of Mines indicated that 3.4 percent of underground miners examined had X-ray evidence of silicosis. The rate may be higher among surface miners.
Asbestosis is somewhat similar to silicosis. Asbestos fibers which are inhaled cause scar tissue to build up in the lungs to the point where the miner loses lung function. The death certificates of miners suffering from asbestosis generally do not list the disease as the primary cause of death. Rather, death frequently occurs from heart attack, for asbestosis places additional strain on the heart, which must work harder to pump oxygen through the body because of impaired lung function. Asbestos fibers are commonly found in talc mines, vermiculite mines, and in some quarries, as well as in at least one large taconite mine and one underground gold mine. Altogether, asbestosis probably exists in several thousand mining operations which are currently being screened by MESA to determine the presence and concentration of asbestos fibers.
Cancer is also a threat to asbestos workers. The inhalation of asbestos fibers can cause lung cancer many years after exposure has condition shows up on X-ray films and obscures the pictures. [sic]surrounding the lungs[sic]. The prevalence of asbestosis or either of these two kinds of cancers among miners and former miners is not known.
Siderosis is a benign disease of the lungs which results from the inhalation of iron oxide. This syndrome generally exists among iron miners and millers, and welders involved in many mining and milling operations which call for welding rods containing iron. Siderosis is not known to cause or be connected with any other disease. However, it sometimes masks and is confused with other illnesses because the condition shows upon X-ray films and obscures the pictures.
Lung cancer is associated with exposure to naturally occurring radon daughters in uranium mines and mills. Radon is a gas created in the decay of uranium. Radon diffuses from the rock into the mine or mill air, attaches to airborne dust particles, and is inhaled into the lungs where it causes the cancer. MESA records indicate that 30 to 40 former uranium miners are contracting lung cancer each year from their occupational exposure. Most of them die from the disease.
Mercury poisoning can occur in milling operations where ore is liquified and then vaporized and condensed to process it for commercial use. When it vaporizes, mercury gives off poisonous fumes which may then be inhaled. Symptomatic of mercury poisoning are central nervous system disorders characterized by "the shakes", equilibrium problems, and loss of memory and incoherence in its advanced stages.
Manganese poisoning occurs among welders who are repairing rotary crusher drums used in the milling process. Manganese vapors are frequently emitted from both the welding rod and the heated welding material used to build up the crushing drum. Manganese poisoning is extremely serious and can cause permanent and irreversible central nervous system damage characterized by loss of voluntary muscle control.
Nitric oxide and nitrogen dioxide poisoning result, respectively, from the inhalation of two toxic oxides of nitrogen. These chemical configurations result from dynamite explosions and are also found in diesel exhaust. Nitric oxide, when inhaled, attaches to the hemoglobin in the blood and inhibits oxygen carriage. The symptoms of nitric oxide poisoning are similar to those connected with carbon monoxide poisoning headache, a feeling of dullness in the brain, etc. Once the miner is removed from the source of the contamination, the nitric oxide will leave the blood and is thought not to inflict permanent damage.
Exposure to nitrogen dioxide is much more serious. A miner can be exposed to nitrogen dioxide and generally not feel particularly ill at first. The gas, however, causes fluid to collect in the lungs, simulating pneumonia, and death may result within 24 to 48 hours after exposure.
Dermatitis is a big problem among miners. A lot of cases result from the practice of spraying cement on the surfaces of underground mines to make "rooms" or to stabilize the ground. Water used in the mining process collects cement dust. As miners walk through the puddles, the water and cement dust mixture may seep into their boots. Or, the water containing the cement dust may drip on them. The alkaline material in the cement causes a reaction with the skin. Salt dust from salt mines can also create dermatitis. Dermatitis generally does not result in time lost from work, and symptoms can be relieved by the use of salves.
Hearing loss is probably the most common condition among metal and nonmetal miners. MESA estimates that perhaps 25 percent of currently employed miners have a hearing impairment. The basic source of noise is drilling machinery, fans, diesel engines, and grinding and crushing equipment. Noise is one of the more difficult areas to control in mining without reverting to ear plugs.
"Beat disease" is a common name for a syndrome resulting from the use of jackhammers and other hand-held vibrating machines, and from driving heavy equipment over rough terrain. The constant vibration affects the nerves, muscles, and bone structure. Eventually it leaves permanent effects, and results in impaired movement and limb functioning, in addition to causing bursitis and other joint disorders.
Heat stress results from working in mines which are hot either because they are located in thermal areas especially in Utah and Wyoming, around mud pots, hot springs, etc., or because the mines are located deep in the ground. In southern parts of the United States, including mines in Arizona and Florida, workers in surface mines may suffer from heat stress in the summer.
Hydrogen sulfide poisoning results from inhalation of the naturally occurring gas found in the mining and chemical processing of ores. Exposure to the fumes can be fatal, as has been indicated in the previous discussion of the seven fatalities in the Barnett Complex Mine in Rosiclare, Ill. In small doses the gas irritates the eyes and causes "tightness" in the chest.
Carbon monoxide poisoning is a threat wherever combustion occurs. Carbon monoxide gas is contained in diesel exhaust and is emitted from burning or smoldering mine fires. It was responsible for most the deaths in the two mine fires previously discussed those in the Cargill Salt Mine in Belle Isle, La., and the Sunshine Silver Mine in Kellogg, Idaho.
SUMMARY OF MAJOR PROVISIONS
As mentioned previously, H.R. 4287 does three essential things:
First, it defines "mine" and adds "or other" after the word "coal" in most places where it appears in the Federal Coal Mine Health and Safety Act of 1969, thereby serving to bring metal and nonmetal mining and milling under the jurisdiction of the Coal Act.
Second, it repeals the Metal and Nonmetallic Mine Safety Act passed in 1966.
Third, it transfers the functions of the Secretary of the Interior under the Federal Coal Mine Health and Safety Act of 1969 to the Secretary of Labor. In addition, all personnel, property, records, etc., within MESA are transferred to the Department of Labor, and proceedings before the Secretary of the Interior shall continue before the Secretary of Labor.
Within the Department of Labor, the previous MESA organization from the Department of the Interior shall be placed in the Mine Safety and Health Administration, headed by an Assistant Secretary of Labor for Mine Safety and Health, who shall carry out the Secretary of Labor's functions. This transfer has been strongly supported by President Carter in an effort to consolidate all major health and safety programs in the Department of Labor, which has traditionally been responsible for the welfare of the Nation's workforce.
Other major provisions of H.R. 4287, in addition to those already in the Coal Act, are as follows:
Section 301(b) maintains the body of standards applicable to both coal and metal and nonmetal mines, respectively, until the Secretary shall issue new or revised standards. As the result of an amendment offered by Congressman Quie and accepted in full committee, all future standards shall be promulgated separately or vertically as being applicable to coal and noncoal mines respectively. However, identical standards may be appropriate for each category if the same hazard exists. Nevertheless, the formal promulgation of the identical standards must be made separately. Old standards under the Metal and Nonmetal Act are of two types: mandatory, which are enforceable; and advisory, which are merely suggestions for safe operation of mining activities.
Section 301(b), then, requires that within 60 days after the effective date of this act, the Secretary shall establish an advisory committee which shall, within 180 days after its establishment, review the advisory health and safety standards issued by the Secretary of Interior under the Federal Metal and Nonmetallic Mine Safety Act and recommend to the Secretary which of these shall be published as mandatory health and safety standards.
Through procedures outlined in the act, selected standards shall be promulgated within 115 days, broken down as follows: The Secretary has 60 days to publish recommended standards in the Federal Register. Interested persons shall then have 25 days to submit written data or comment. Finally, within 30 days after the close of the comment period, the Secretary shall promulgate the final standards by publication in the Federal Register. If he determines that a particular recommended standard will not promote the health and safety of miners, and thereby decides not to promulgate such a standard, he shall publish an explanation of his reasons in the Federal Register.
Section 304 protects the existing mine inspection force as a basis stronger enforcement of standards in metal and nonmetal mines. It does this by providing that nothing in this Act shall be construed to reduce the number of inspectors engaged in enforcement of the Federal Coal Mine Health and Safety Act of 1969, the Federal Metal and Nonmetallic Mine Safety Act, or the Occupational Safety and Health Act of 1970, as in effect prior to the effective date of this act.
Section 305 guards against the amalgamation of the Mine Safety and Health Administration with OSHA, by requiring that the President shall set forth, as separate appropriation accounts, amounts required for appropriation for mine health and safety pursuant to the Federal Mine Health and Safety Act of 1977, and for occupational safety and health pursuant to the Occupational Safety and Health Act of 1970.
SUMMARY OF CONSIDERATIONS REGARDING TRANSFER OF ADMINISTRATION
Most considerations involved in the transfer of mining safety and health enforcement from the Department of the Interior to the Department of Labor are discussed more fully in connection with other matters elsewhere in this report. The transfer provision is not new to the 95th Congress, but was incorporated into H.R. 13555 passed by the House in the 94th Congress. Below are a summary and review of the major issues connected with transfer.
CONFLICT OF MISSIONS
Inherent conflicts of interest were established with the enactment of the Federal Metal and Nonmetallic Mine Safety Act passed in 1966 and the Federal Coal Mine Health and Safety Act of 1969. With those laws, the Department of the Interior was given guardianship over the lives and welfare of the men who were carrying out the primary purpose of the Department, that of finding efficient ways of meeting the ever-increasing need and demand in this country for production of scarce energy and mineral resources.
The Department has at times admitted its own difficulty in acknowledging the priority that should be given health and safety matters. After taking much blame for not issuing and enforcing standards that would have prevented the tragic loss of 91 miners in the Sunshine Silver Mine fire in Kellogg, Idaho in 1972, Interior established MESA as an independent administration for the sole purpose of protecting miner health and safety. To a certain extent, however, the division was illusory, because the responsibility remained under the same Assistant Secretary who has responsibility for other production-oriented matters relating to energy conservation, energy and mineral resources, and oil and gas activities. The committee is convinced that only removal of health and safety responsibilities from Interior can really solve the problem.
MESA'S POOR RECORD IN DEVELOPING METAL AND NONMETAL HEALTH AND
Regulations applicable to metal and nonmetal mining consist of a pool of standards, some mandatory and enforceable; others advisory and unenforceable. Many of the mandatory standards contain vague and undefined language. Only a handful of health standards exist, hardly scratching the surface of the list of toxic substances to which miners are exposed. The committee is convinced that transfer of administration together with the standards provisions contained in the act will increase the speed of promulgation and quality of health and safety standards issued.
TRUST OF THE LABOR DEPARTMENT; MISTRUST OF INTERIOR BY WORKERS
The Department of Labor has been the traditional agency entrusted with responsibility for overseeing the welfare of the Nation's workforce. Miners, however, have viewed themselves as being in the disadvantageous position of falling outside the jurisdiction of the Labor Department. Workers in milling operations exposed to both MESA and OSHA enforcement programs state a definite preference for OSHA enforcement as providing greater protection of their health and safety. Other union representatives have accused the Department of the Interior of siding with mine operators and following a lax enforcement policy. Mine operators add fuel to the workers' assertions by testifying about their good working relationships with MESA inspectors, and arguing vehemently against transfer. The crux of the issue as far as miners are concerned is that they regard the Department of Labor with considerably more credibility than they do the Department of the Interior.
In previous years the Interior Department's main complaint against transfer was that important safety research, which could be most efficiently carried out in conjunction with production research, would be pulled from that agency. The committee solved this problem by maintaining safety research within the Department of the Interior, and leaving it unaffected by the transfer. However, the committee bill requires that such research shall be conducted in coordination with the Secretary of Labor, since MESA has in the past complained that Interior research was not oriented enough to the enforcement responsibilities of the agency.
Although most of the overlap between MESA and OSHA with regard to dual inspection of milling operations has been alleviated by a memorandum of understanding between the two organizations, placing both administrations within the same government agency would solve the remaining problems. A provision in H.R. 4287 guards against further jurisdictional conflicts by providing that the Secretary shall give due consideration to the convenience of administration resulting from the delegation in one Assistant Secretary of all authority with respect to health and safety of miners employed at one physical establishment.
WEAKNESSES OF THE METAL AND NONMETAL ACT AND IMPROVEMENTS
MADE BY H.R. 4287
HEALTH HAZARDS PROTECTION
The fact that the word "health" is not in the title of the Federal Metal and Nonmetallic Mine Safety Act is indicative of the lack of emphasis on health protection in that law. Furthermore, the act contains no provisions specifically tailored or relating to the development of health standards. Finally, the law contains no provisions for carrying out health research projects.
Nevertheless, under the authority of the Occupational Safety and Health Act, and the research provisions in the Metal and Nonmetal Act implied in the authority to develop standards, NIOSH has conducted studies on toxic substances in metal and nonmetal mines and has developed criteria documents and recommended standards for substances found in mines including noise, asbestos silica, beryllium, inorganic arsenic, inorganic mercury, carbon monoxide, and nitrogen oxides. In many cases NIOSH has conducted its OSHA studies on the effects of these intoxicants, in the mines themselves where heavy concentrations of the contaminants occur naturally.
MESA has adopted relatively complete standards, recommending handling and control equipment and prescribing monitoring procedures, however, for only three substances, asbestos, noise, and radon daughters. Moreover, the metal and nonmetal standard for asbestos is not as stringent as the OSHA standard for asbestos exposure. However, among coal miners, where asbestos is generally found not in mining but only in the form of asbestos blankets to protect welders working in the mines, the strict OSHA standard has been adopted. The committee believes that this neglect of the health and metal and nonmetal miners by MESA is extremely unfortunate in view of the hazards presented by this disease-causing and cancer-causing mineral.
Likewise, the radon daughters gas standard controlling exposure of uranium miners was not developed by MESA itself. Despite wholesale disclosure of massive exposure of these miners, MESA officials did not take the leadership in developing and promulgating such standard. Rather, it was developed and promulgated by the Department of Labor under its Walsh-Healy authority.
Otherwise, standards applicable to metal and nonmetal mines do not exist in complete form, but are limited to a single number representing the maximum atmospheric concentration to which miners may be legally exposed. These numbers are contained in a listing published by the American Conference of Governmental Industrial Hygienists.
The Federal Mine Safety and Health Act of 1977 provides that mine health research shall be carried out by the Secretary of Health, Education, and Welfare (HEW), and that mine safety research shall be carried out by the Secretary of the Interior. As a result of the Buchanan amendment, adopted by the full committee, NIOSH is directed to develop and publish, within three years after enactment, a list of all substances found in mines which are toxic at the concentrations in which they normally occur.
It is the further intention of the committee that NIOSH place its research emphasis on lung and respiratory diseases among metal and nonmetal miners and on cancers and other illnesses suffered in higher concentrations by metal and nonmetal miners than by other members the population.
Under the new act, as previously indicated in this report, the Secretary of HEW will be authorized, in addition to conducting research, to develop full proposed standards for toxic substances found in mines, to hold hearings on them, and to direct the Secretary of Labor to promulgate the final standard. The committee intends that this procedure be used vigorously to develop a complete and comprehensive body of health standards to protect metal and nonmetal miners.
Under the Metal and Nonmetal Act there are two types of health and safety standards: mandatory which are enforceable, and advisory, behind which there is no Federal enforcement authority.
Further, under the Metal and Nonmetal Act, promulgation is extremely slow because there are no time limits set in the promulgation process, other than the 30 days' time limit for interested persons to submit data or comments on the proposed standards published in the Federal Register. There is no time limit governing when the Secretary must hold a hearing on the proposed standard other than "as soon as practicable"; and there is no limit on how long the Secretary may take, after the hearings are held on the proposal, to promulgate the final standard. Twenty two months passed after the 1972 Sunshine Mine Fire which killed 91 miners before MESA finally promulgated standard requiring that miners be provided with self-rescuer breathing apparatuses, despite the desperate need revealed by the disaster.
H.R. 4287 virtually mandates considerable upgrading of standards. It provides that the Secretary shall establish an advisory committee which shall have 180 days to review the advisory health standards in metal and nonmetal mining' and recommend as (mandatory) standards or modifications thereof, any standards which do not substantially diminish the health and safety of miners. After the committee makes its recommendations, the Secretary shall have 60 days to publish the proposal in the Federal Register. Interested persons shall have 25 days to respond with written data or comment. The Secretary then has an additional 30 days to promulgate the new standards by publication in the Federal Register. Where he determines that a proposed standard will not promote health and safety of miners, and therefore decides not to publish it, the Secretary shall publish an explanation of such determination in the Federal Register.
Otherwise, all metal and nonmetal and coal standards shall remain in effect, applicable to the coal and metal and nonmetal mines, respectively, until the Secretary issues new or revised standards in accordance with the regular promulgation procedure. This procedure differs from the procedure under the Metal and Nonmetal Act in that the Secretary must promulgate the standards within 60 days after the hearing is held. No time limit exists under the Metal and Nonmetal Act.
The chronology of events in the promulgation of a health or safety standard under the Federal Mine Safety and Health Act of 1977 is as follows:
The Secretary of HEW develops and revises proposed health standards. The Secretary of Labor then publishes in the Federal Register the proposed health standards transmitted to him by the Secretary of HEW, and the proposed safety standards developed in the Mine Safety and Health Administration. Interested persons shall be afforded at least 30 days to submit written data or comments and request a hearing. As soon as practicable after the end of the 30day period for filing objections, the Secretary shall publish a notice in the Federal Register specifying the proposed standards to which objections have been filed and a hearing requested. Promptly after this notice is published, the Secretary of HEW shall issue notice of and hold a public hearing to receive relevant evidence on health standards, or the Secretary of Labor Shall issue notice of and hold a public hearing to receive relevant evidence on safety standards. Within 60 days after the completion of the hearings, the Secretary who held the hearing shall make public his findings of fact. The Secretary of HEW shall then direct the Secretary of Labor to promulgate health standards with such modifications as he deems appropriate, or the Secretary shall promulgate, directly safety standards with such modifications as he deems appropriate.
If the Secretary of HEW or the Secretary, respectively, determines that a proposed health or safety standard should not be promulgated or should be modified, he shall within a reasonable time publish his reasons for that determination.
Under the Metal and Nonmetal Act there is no provision for a variance from a standard to be granted to mine operators. Under the Federal Mine Safety and Health Act of 1977, the Secretary may modify the application of a standard to a mine if an alternative standard will guarantee no less protection for miners, or not result in the diminution of safety to the miners.
Under the Metal and Nonmetal Act underground mines are required to be inspected at least once a year. Although MESA has recently undertaken an administrative policy of conducting four inspections a year on all underground mines, this provision becomes law with the enactment of H.R. 4287. Moreover, the law will also require "frequent" inspections of all other mines and mills each year. Under the Metal and Nonmetal Act no mention is made of how frequently these last two operations must be inspected. The committee stresses quality of inspection as well as quantity of inspection.
The committee emphasizes the extreme need for health inspections as well as safety inspections. H.R. 4287 provides that the National Mine Health and Safety Academy shall be maintained as an agency in the Department of the Interior, and shall be responsible for training mine safety and health inspectors and technical support personnel of the Mine Safety and Health Administration. The committee intends that the Secretary of the Interior shall closely coordinate the efforts of the National Mine Health and Safety Academy with the Director of NIOSH, in training mine health inspectors in the recognition of health hazards in mines and in the use of measuring devices to record concentrations of toxic substances in mines.
The Metal and Nonmetal Act provides that in case of violation a health or safety standard, a notice shall be issued stating a reasonable time within which the violation shall be totally abated. H.R 4278 upgrades this provision by requiring that citations for violations of standards shall be in writing, shall describe the violation with particularity, and shall set a reasonable time for abatement. De minimus notices shall be issued instead of citations where the violation has no substantial or direct impact on safety or health.
The Metal and Nonmetal Act sets no time limits for mine operators to appeal notices to the Secretary. Sections 105 of the amended act provides that an operator must apply to the Secretary for review within 30 days of receiving a notice of violation.
Under the Metal and Nonmetal Act, no mandatory dollar penalties are issued in conjunction with notices of violations of standards. Failure to comply with a withdrawal order or failure to comply with an abatement order, however, is punishable, upon conviction, by a fine of $100 to $3,000 or by imprisonment for not more than 60 days, or both if the failure to comply could cause death or serious physical harm.
The problems resulting from this system were noted by Mr. Thomas Miechur, President of United Cement, Lime, and Gypsum Workers' International Union in his testimony before the committee on March 21, 1977, when he remarked on the increase in quantity of inspections to four per year for underground mines as a result of MESA's new administrative policy.
We have found that quantity does not make quality. We have seen hazards for which notices were issued remain uncorrected many, many months after the date for abatement has expired. We have seen that the lack of civil penalties makes effective enforcement difficult.
H.R. 4287 corrects this deficiency by providing for the following mandatory penalties for mine operators. The amounts indicated below are maximum penalties.
(1) $10,000 for violation of a safety or health standard or provision of this act;
In addition, any miner caught smoking or carrying smoking materials shall be subject to a civil penalty of $250 for each occurrence of the violation.
(2) $25,000 or imprisonment for not more than a year, or both, for willfully violating a provision of this act or health or safety standard; $50,000 or imprisonment for not more than 5 years or both for any conviction after the first conviction;
(3) $10,000 or imprisonment for not more than 6 months or both for making a false statement or certification;
It also should be pointed out that the $10,000 civil penalty provided in the bill refers to the maximum that can be assessed for a violation. Penalties approaching that amount would be used only in the most severe situations. The legislation, in fact, lists several factors to be considered in moderating the size of the penalty. These considerations are the gravity of the violation, the operator's previous record, the operator's good faith efforts for compliance, and the size of the mining operation. In other words, there are numerous avenues for mitigating the penalty. And, of course, due process remedies are available to the operators if they wish to appeal the penalties. In addition, MESA has adopted a schedule or gradation of violations to provide consistency in imposing penalties under the Coal Act. The committee recognizes that such a schedule will be equally applicable to situations in noncoal mining and should allay unwarranted misapprehensions by operators of excessively heavy fines. As matter of fact, the average penalty under the Coal Act is $200 per violation.
Withdrawal orders may be issued for only two reasons under the Metal and Nonmetal Act: imminent danger and failure to abate a violation. Withdrawal is the main remedy used to force compliance with a standard since no dollar penalties are regularly assessed in conjunction with the issuance of a notice. H.R. 4287 provides three more instances in which withdrawal orders may be issued. These, together with the penalty provisions just described offer greater flexibility in encouraging compliance.
Under the Mine Safety and Health Act of 1977 additional withdrawal orders may be issued:
(1) When an operator commits two unwarrantable failures to comply within a 90-day period;
Under the Metal and Nonmetal Act the Secretary may institute a permanent or temporary injunction whenever an operator:
(2) When an operator commits other similar violations after a previous order has been issued under (1) above;
(3) When there exist in a mine potentially dangerous conditions that cannot be abated through existing technology.
(1) Refuses to comply with an order or decision;
Under H.R. 4287, one additional instance in which an injunction may be used is added. The Secretary may also institute an injunction whenever an operator:
(2) Hinders the Secretary or the Secretary of HEW in carrying out this act;
(3) Refuses to admit representatives of the Secretary of Labor or HEW to the mine;
(4) Refuses to permit inspection or investigation of an accident or occupational disease; or
(5) Refuses to furnish information requested by the Secretary or the Secretary of HEW.
(6) Refuses to permit access to and copying of records determined to be necessary by the Secretary or the Secretary of HEW.
APPEALS TO THE SECRETARY AND JUDICIAL REVIEW
The Mine Safety and Health Act of 1977 provides for an appeal to the Secretary to review any withdrawal order issued, or any penalty assessed, pursuant to the act.
Under the Metal and Nonmetal Act a withdrawal order issued to a mine operator could be appealed to the Secretary or to the Metal and Nonmetallic Mine Safety Board of Review. Since all appeals were actually made to the Secretary, the Metal and Nonmetallic Mine Safety Board of Review was abolished by the 94th Congress for lack of any cases.
For purposes of carrying out his review functions under the Mine Safety and Health Act of 1977, the Secretary of the Interior has established an administrative review system inside the Department of the Interior (which will be transferred to the Department of Labor). This review system is housed in the Office of Hearings and Appeals, the entire adjudicatory arm of the Secretary of the Interior. Included in this office are a Hearings Division comprised of administrative law judges who hear the cases appealed to the Secretary and make a determination on them, and a three-member Board of Mine Operations Appeals to hear appeals on the decisions made by the administrative law judges.
The operator or party may appeal the decision of the Board to the appropriate circuit court of appeals, and from there to the Supreme Court.
Civil penalties are handled differently in two respects. First, for processing civil penalties, the Secretary has established an informal assessment system housed in the Office of Assessment, from which an operator may request a conference or hearing to protest a proposed penalty within the allotted time period. If an agreement cannot be reached, the operator may then file with the Office of Hearings and Appeals for review by an administrative law judge, and may appeal that decision to the Board, then to the circuit court of appeals, and then to the Supreme Court.
If, however, the operator does not contest the penalty assessed him, but rather does not pay it, the case is referred to a U.S. attorney and filed in the appropriate U.S. district court. The decision from that court is appealable to a circuit court of appeals, and from there to the Supreme Court.
Since the passage of the Occupational Safety and Health Act, a tug-of-war has resulted over the inspection of milling operations by both MESA and OSHA. Representatives of unions of mill workers testified before the committee 2 years ago that they were being inspected by both agencies, and wished to be placed under the jurisdiction of one or the other, but not both.
To a certain extent the problem was resolved by a memorandum of understanding agreed upon by MESA and OSHA. However, this year the committee heard testimony from Thomas F. Miechur, President of United Cement, Lime and Gypsum Workers' International Union to the effect that his members employed in the portland cement industry were now, without prior consultation or notice to the union, covered under MESA's definition of milling. Mr. Miechur testified on March 21, 1977 on the inferiority of the Metal and Nonmetal Act as it applied to his milling operations and the disappointment of the members that they were not still covered under the Occupational Safety and Health Act. He stated:
What did our members lose? They lost the right to a formal complaint and inspection procedure. MESA does not have that. They lost their legal right to walk around with the inspector. MESA does not have that. They lost their right to contest abatement periods. They were forced to give up specific and enforceable OSHA standards for vague standards promulgated by MESA, many of which are advisory and not mandatory.
The definition of "mine" in H.R. 4287 includes milling operation. The bill also specifies that in making a determination of what constitutes mineral milling for purposes of this act, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment.
What have our members gained? Nothing. There have been more inspections under MESA than there had been under OSHA. But we have found that quantity does not make quality.
Fatality rates in the milling operations have fluctuated between 0.12 fatalities per million manhours worked and 0.20 fatalities per million manhours worked over the last 10 years without showing any definite trend in downward direction. The committee sees a great need for increased efforts to reduce fatalities and injuries occurring in milling operations.
MINER RIGHTS AND ENTITLEMENTS
Under the Metal and Nonmetal Act, miners are provided with few rights and entitlements. They are not protected against discrimination by mine operators. They may not request an inspection when they believe that a violation of a health or safety standard exists. They have no opportunity to accompany the inspector on his rounds. They have no legislative mandate to receive pay for time they are idled when a mine is closed by a withdrawal order.
The Mine Safety and Health Act of 1977 expands their protection and increases their entitlements in the following ways:
It provides for an increase in the body of standards, especially by requiring rapid consideration and incorporation of the advisory standards under the Metal and Nonmetal Act.
It protects the health and safety of miners by requiring at least four inspections of underground mines each year.
It implements a system of mandatory penalties for violations cited and for other situations in which an operator fails to comply with provisions of this act.
It provides for informing miners on the results of an inspection by mandating that notices of violations cited by an inspector be posted at the office bulletin board where they are easily visible, and that copies of notices, orders, etc. shall be mailed to miners' representatives.
It provides that a representative of the miners may accompany the inspector at the time of any inspection.
It provides that whenever a representative of the miners has reasonable grounds to believe that a health or safety standard violation or imminent danger exists, he may obtain an immediate inspection by giving notice in writing to his authorized representative of the Mine Safety and Health Administration.
It provides for the education of miners with regards to standards applicable to the mines by requiring that the Secretary send a copy of every proposed standard or regulation at the time of publication in the Federal Register to a representative of the miners at each mine. In addition, a copy shall be posted on the bulletin board by the operator.
It provides that metal and nonmetal miners idled by a withdrawal order will receive their regular compensation for the balance of the shift during which idlement occurs. Workers on the following shift will receive pay for four hours of work if the order is not terminated. If the mine is closed because of failure of the operator to comply, miners idled will receive their regular rates of pay for one week or until the mine is reopened, whichever is shorter.
It prohibits discrimination against miners for filing a safety complaint or exercising statutory rights under this act. The Secretary, after determining that there is probable cause for the miner's complaint, shall arrange for an investigation. Appeal from the Secretary's decision shall go to the Board, and from there to the courts.
It provides that withdrawal orders may be issued in several instances, in addition to those provided for in the Metal and Nonmetal Act, to protect miners from conditions that are unsafe and unhealthful.
Finally, it provides that in case of a mine accident, an authorized representative of the Secretary, when present, may issue such safety orders as he deems appropriate.
OPERATOR RIGHTS AND ENTITLEMENTS
The Metal and Nonmetal Act contains virtually no specific protections for mine operators. The adoption of H.R. 4287 introduces a number of entitlements.
First, mine operators are permitted to apply for and obtain variances from a standard if they can convince the Secretary that an alternative method will guarantee no less protection for the miners.
Second, every mine operator is entitled to receive a copy of every proposed standard or regulation at the time of publication in the Federal Register. This gives him immediate notification of a proposal and affords him time to submit written data or comments and request hearing within the 30day time limit incorporated into the act.
The committee believes that H.R. 4287 upgrades the administration of miner health and safety in a number of ways. As indicated previously, under the Metal and Nonmetal Act and the Coal Act, the conflict has always existed within the Department of the Interior, between the goal of production of mine commodities on one hand, and the responsibility for health and safety of miners on the other. Transfer of mine safety enforcement responsibility to the Department of Labor will solve this conflict.
Under the Metal and Nonmetal Act mine operators are not required to report commencement of a mining operation. Under H.R. 4287, each operator of a mine shall file with the Secretary the name and address of the mine and the person who controls or operates the mine.
A fear expressed by miners and other groups has been that if mining safety and enforcement responsibilities are transferred to the Department of Labor, the former MESA operation will become buried in OSHA. To guard against this happening, the committee. has placed the former MESA group under a separate Assistant Secretary for Mine Safety and Health who shall be head of the Mine Safety and Health Administration, which shall be on a par with the Occupational Safety and Health Administration, also headed by its own Assistant Secretary. To further guard against mingling of funds, H.R. 4287 requires that separate budgets shall be included in the President's budget for the Mine Safety and Health Administration and for the Occupational Safety and Health Administration.
EFFECT ON STATE LAWS
Under the Metal and Nonmetal Act States are encouraged to develop and enforce their own State plans meeting Federal requirements. Six States have State plans currently in effect. These are Arizona, Colorado, North Carolina, New Mexico, Utah, and Virginia. Under the Metal and Nonmetal Act the Secretary delegates his authority to States with approved plans to carry out his functions.
Because State plans are not funded under the Metal and Nonmetal Act, but are entirely self-supported, Federal funds would not be removed from these plans with the repeal of the Metal and Nonmetal Act. As a result, these State plans would be expected to continue in conjunction with Federal enforcement under H.R. 4287. It would be a dual system which encourages State participation while at the same time not relinquishing Federal enforcement. However, the Federal law would supersede any State law in conflict with it. State laws providing more stringent standards than exist under the Federal law, however, would not be held in conflict with the act.
On May 4, 1977, the full Committee on Education and Labor voted 19 to 9 to report the bill for House consideration.
INFLATIONARY IMPACT STATEMENT
Although there may be some initial cost because operators need to comply with more effective health and safety standards, the savings over the longer period from reduced workers' compensation premiums and other costs resulting from death and injury of miners, including lost work days, are expected to offset these costs. Furthermore, the resources that are siphoned off to pay for workers' compensation benefits and medical expenses can be made available for more productive use.
REQUIREMENTS OF RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES
With respect to the matters covered by this bill, the Committee on Government Operations has not submitted oversight findings and recommendations to the Committee on Education and Labor, and other than this report and the hearings previously described therein, there have been no oversight findings and recommendations by the Committee on Education and Labor, The Subcommittee on Labor Standards has announced its intentions to conduct oversight hearings into the Federal Coal Mine Health and Safety Act of 1969.
CONGRESS OF THE UNITED STATES,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., May 10, 1977.
Hon. CARL D. PERKINS,
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 H.R. 4287, the Federal Mine Health and Safety Act of 1977.
Chairman, Committee on Education and Labor, U.S. House of Representatives, Washington, D.C.
Should the committee so desire, we would be pleased to provide further details on the attached cost estimate.
ROBERT A. LEVINE,
(For Alice M. Rivlin, Director).
CONGRESSIONAL BUDGET OFFICE
1. Bill number: H.R. 4287.
2. Bill title: Federal Mine Health and Safety Act of 1977.
3. Bill purpose: H.R. 4287 repeals the Federal Metal and Nonmetallic Mine Safety Act and amends the Federal Coal Mine Health and Safety Act of 1969 to include all mines, coal, and other. In addition, H.R. 4287 provides for the following:
A. Transfer of functions for Mine Enforcement and Safety Administration from the Department of the Interior into the Department of Labor; and
4. Cost estimate:
[In millions of dollars; fiscal years]
B. Establishment of an Office of the Assistant Secretary of Labor for Mine Safety and Health.
1978 1979 1980 1981 1982
Budget authority ...................... 4.7 5.1 5.4 5.7 6.0
Offsetting receipts .................... -2.0 -6.0 12.0 -18.0 -20.0
Net costs or savings ................... 2.7 -.9 6.6 12.3 -14.0
5. Basis for estimate: The cost estimate 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, the Mine Enforcement and Safety Administration (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.
In addition, the appeals process, currently conducted by the Department of the Interior's Office of Hearings and Appeals, 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 a total cost of $1.5 million.
Out-year personnel costs are inflated by CBO projections for General Schedule pay increases. Also, the estimate assumes that costs for fiscal year 1978 are based upon a full year of activities.
Because of the increased activity in assessment of civil penalties, MESA estimates that $20 million will be assessed against metal and nonmetallic mine operators per year (approximately 130,000 violations at $150 each). The amount of off-setting receipts into the U.S. Treasury from payments of fines is calculated on the basis of a collection rate of 10 percent the first year, 20 percent the second year, 30 percent the third and fourth years, and 10 percent the fifth 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.
9. Estimate approved by:
SECTION-BY-SECTION SUMMARY OF H.R. 4287 (MR. GAYDOS)
(For James L. Blum,
Assistant Director for Budget Analysis).
"FEDERAL MINE SAFETY AND HEALTH AMENDMENTS ACT OF 1977"
TITLE I -- AMENDMENTS TO THE GENERAL PROVISIONS OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969
SECTION 101 -- SHORT TITLE
This section renames the Federal Coal Mine Health and Safety Act of 1969 (hereafter referred to as the Coal Act) as the "Federal Mine Safety and Health Act of 1977".
SECTION 102 -- DEFINITIONS AND APPLICABILITY
Section 102(a)(1) amends section 2 of the Coal Act relating to findings and purpose by inserting "or other" immediately after "coal" wherever it appears.
Section 102(a)(2) amends section 2(g)(1) of the Coal Act by striking out "the Interior" and inserting "Labor" where it designates the Secretary to develop and promulgate mandatory safety and health standards.
Section 102(b)(1) amends the definition of "Secretary" generally as used in the Coal Act, to imply the Secretary of Labor rather than the Secretary of the Interior.
Section 102(b)(2) amends the definition of "Mine" to read "coal or other mine" and to include (1) an area of land from which minerals are extracted in non-liquid form, or if in liquid form are extracted with workers underground; (2) private ways and roads appurtenant to such area; and (3) lands, passageways, facilities, etc., to be used in or resulting from the work of extracting minerals, including custom coal preparation facilities and milling operations except property used in the milling of source minerals defined in the Atomic Energy Act of 1954, as amended. This subsection further provides that in making a determination as to what constitutes milling operations, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment.
Section 102(b)(3) amends subsections (d), (e), (g), and (j) of the definitions section of the Coal Act (defining "operator", "agent", "miner", and "imminent danger" respectively) to insert "or other" immediately after "coal" wherever it appears.
Section 102(b)(4) further amends the definitions section (section 3) of the Coal Act to add a definition for "Administration", implying the Mine Safety and Health Administration in the Department of Labor.
Section 102(c) amends section 4 of the Coal Act, defining mines subject to the act, to insert "or other" immediately after "coal".
TITLE II -- MINE SAFETY AND HEALTH STANDARDS AMENDMENTS
SECTION 201 -- AMENDMENTS TO TITLE I
This section amends title I of the Coal Act by inserting "or other" immediately after "coal" wherever it appears. In addition, NIOSH is directed to list toxic substances found in the mines and promulgate standards thereto.
TITLE III -- MISCELLANEOUS PROVISIONS
SECTION 301 -- TRANSFER MATTERS
Section 301(a) transfers to the Secretary of Labor all functions of the Secretary of the Interior under the Coal Act and the Federal Metal and Nonmetallic Mine Safety Act (hereafter referred to as the "Metal and Nonmetal Act"), except safety research responsibilities previously assigned to the Secretary of the Interior under section 501 of the Coal Act.
Section 301(b)(1) provides that mandatory standards relating to mines issued by the Secretary of the Interior under both the Coal and Metal and Nonmetal Acts shall remain in effect, applicable to the respective mines, until the Secretary shall issue new or revised standards under the Federal Mine Safety and Health Act of 1977, applicable to coal and noncoal mines respectively.
Section 301(b)(2) provides that within 60 days after the effective date of this act the Secretary shall establish an advisory committee which shall within 180 days after the date of its establishment review the advisory health and safety standards previously issued under the Metal and Nonmetal Act and recommend to the Secretary which standards or modifications thereof, which do not substantially diminish the health and safety of miners, should be promulgated as health and safety standards under the Federal Mine Safety and Health Act of 1977. Within 60 days after the recommendations of the advisory committee, the Secretary shall publish each standard, so recommended for adoption under this act by publication in the Federal Register, and shall afford interested persons 25 days to submit written data or comment. Within 30 days after the close of the comment period, the Secretary shall promulgate by publication in the Federal Register standard based on the advisory committee recommendation with or without modification, and the data and comments received thereon, unless the Secretary determines that such standard will not promote the health and safety of miners and publishes an explanation of that determination in the Federal Register.
Section 301(b)(3) provides that all interpretations, regulations and instructions of the Secretary of the Interior or the Director of the Bureau of Mines in effect on the date of enactment and not inconsistent with any provision of or amendment to this act, shall be published in the Federal Register and shall continue in effect until modified or superseded in accordance with provisions of this act.
Section 301(c)(1) provides that all unexpended balances of appropriations, personnel, property, records, etc. which are used primarily with respect to any function here transferred, shall be transferred to the Department of Labor.
The transfer of personnel shall be without reduction in classification or compensation for 1 year after the transfer, except that the Secretary of Labor shall have full authority to assign personnel during the 1year period in order to efficiently carry out functions transferred to him under this act.
Section 301(c)(2) provides that all existing orders, effective decisions, and similar legal matters related to functions here transferred shall continue in effect until modified, terminated, superseded, or repealed by the Secretary of Labor, by any court of competent jurisdiction, or by operation of law.
Section 301(c)(3) provides that the transfer provisions shall not affect pending proceedings which were begun prior to the effective date of this act, except that proceedings involving functions transferred to the Secretary shall be continued before the Secretary of Labor.
Section 301(c)(4) provides that these transfer provisions shall not affect suits begun prior to the effective date of this act, except that suits involving functions transferred to the Secretary shall be continued by the Secretary of Labor.
Section 301(d) defines the word "function" as used in this section to include power and duty. The transfer of a function shall also be a transfer of all functions which are exercised by any officer of such agency or department.
SECTION 302 -- MINE SAFETY AND HEALTH ADMINISTRATION
Section 302(a) establishes in the Department of Labor a Mine Safety and Health Administration to be headed by an Assistant Secretary of Labor for Mine Safety and Health appointed by the President, by and with the advice and consent of the Senate. The Secretary is authorized and directed, except as specifically provided otherwise, to carry out his functions through the Mine Safety and Health Administration.
Section 302(b) amends section 5315 of title 5 of the United States Code (Administrative Procedure Act) to include in the listing of level IV of the Executive Schedule the Assistant Secretary for Mine Safety and Health.
SECTION 303 -- AMENDMENTS WITH RESPECT TO MINE SAFETY AND HEALTH ADMINISTRATION
Section 303(a)(1) amends section 501 (a) of the Coal Act, relating to research by inserting "or other" immediately after "coal" wherever it appears, and by striking out "the Secretary and" and inserting "the Secretary of the Interior and". This serves to maintain safety research functions under the Secretary of the Interior.
Section 303(a)(2) amends section 501 (b) of the Coal Act relating research and assigning health and safety research to the Secretaries of HEW and the Interior, respectively, by inserting "or other" immediately after "coal" each time it appears, and by providing that mine health activities shall be carried out through the National Institute for Occupational Safety and Health, and by providing that the health and safety research activities carried out by the two Secretaries shall be done in coordination with the Secretary of Labor.
Section 303(a)(3) inserts "or other" immediately after "coal" in section 501(d) relating to research responsibilities of the Secretary of HEW.
Section 303(b) amends section 502 of the Coal Act, providing for training and education of miners, by inserting "or other" immediately after "coal" each time it appears.
Sections 303(c) and (d) amend sections 503(a), (b), (f) and (g) of the Coal Act, providing assistance to States, by inserting "or other" immediately after "coal".
Section 303(e) amends section 505 of the Coal Act, outlining inspector qualifications and training, to provide that, to the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be so selected unless he has had at least 5 years' practical mining experience. Furthermore, in assigning mine inspectors to the individual mines, due consideration shall be given, to the extent possible, to their previous experience in the particular type of mining operations where such Inspections are to be made.
Section 303(f) amends section 506(b) pertaining to the effect of this act on State laws and standards, by inserting "or other" immediately after "coal" each time it appears.
Section 303(g) amends section 511 of the Coal Act, requiring the writing of various reports required to be submitted to Congress, by inserting "or other" immediately after "coal".
Section 303(h) amends section 502 of the Coal Act relating to training and education to add a new subsection (c) which provides that the National Mine Health and Safety Academy shall be maintained as an agency of the Department of the Interior. The Academy shall be responsible for the training of mine safety and health inspectors under section 505 of the act, and for training of technical and support personnel of the Mine Safety and Health Administration, and for any other training programs for mine inspectors, mining personnel, or other persons as the Secretaries of Labor and Interior shall designate.
In performing this function, the Academy shall have the authority to enter into cooperative educational and training agreements with educational institutions, State governments, labor organizations, and mine operators and related industries. Training shall be conducted by the Academy in accordance with curriculum needs and assignment of instructional personnel established by the user.
Furthermore, in performing its function, the National Mine Health and Safety Academy shall use the facilities and personnel of the Department of the Interior and such other personnel as shall be mutually agreed upon by the Secretaries of Labor and the Interior. The Secretary of the Interior shall, upon request by the Academy, assign to the Academy such officers and employees as the Director of the Academy deems necessary for the performance of the duties and functions of the Academy.
Finally, the Secretary of the Interior shall conduct his safety research responsibilities under section 501 of the Coal Act in coordination with the Secretary of Labor, and the Secretaries of Labor and the Interior are authorized to enter into contractual or other agreements for the performance of such safety-related research.
SECTION 304 -- SAVINGS PROVISION
This section provides that nothing contained in this act or any amendment made by this act shall be construed to reduce the number of inspectors engaged in enforcement of the Coal Act and the Metal and Nonmetal Act as in effect prior to the effective date of this act, or to reduce the number of inspectors engaged in the enforcement of the Occupational Safety and Health Act of 1970.
SECTION 305 -- BUDGET PROVISION
In the preparation of the Budget message, the President shall set forth as separate appropriation accounts amounts required for appropriation for mine health and safety pursuant to the Federal Mine Health and Safety Act of 1977 and for occupational safety and health pursuant to the Occupational Safety and Health Act of 1970.
SECTION 306 -- REPEALER
This section repeals the Federal Metal and Nonmetallic Mine Safety Act.
SECTION 307 -- EFFECTIVE DATE
The section provides that the act as amended shall take effect 90 days after the date of enactment, except that the Secretary of Labor is authorized to establish such rules and regulations as may be necessary for the efficient transfer of functions provided under this act.