Mine Safety and Health Administration
Protecting Miners' Safety and Health Since 1978
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U.S. Department of Labor Mine Safety and Health Administration Protecting Miners' Safety and Health Since 1978 | |
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Calendar No. 154
FEDERAL MINE SAFETY AND HEALTH ACT OF 1977
MAY 16, 1977. -- Ordered to be printed. Mr. WILLIAMS, from the Committee on Human Resources, REPORT together with MINORITY VIEWS [To accompany H.R. 4287] 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.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. 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. 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,
__________________________________________________________________
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;The Secretary urged enactment of the bill at the "earliest possible moment". 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: AMENDMENTS ACT OF 1977 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. 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). 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,
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. ________ ________,
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. 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. 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. 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. 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. 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. 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. Variances from standards
S. 717 provides that, variances from existing standards may be
granted by the Secretary in two circumstances:
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. 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. 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. 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. 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. 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. 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. 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). 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. 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. |