CHAPTER 5 THE PROTECTED RIGHTS OF A COAL MINE OPERATOR AND A COAL MINER UNDER THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969: A BRIEF PROSPECTUS

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 5
THE PROTECTED RIGHTS OF A COAL MINE OPERATOR AND A COAL MINER UNDER THE FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969: A BRIEF PROSPECTUS
Charles L. Widman
Attorney at Law
Washington, D.C.

When seventy-eight men are entrapped in an underground coal mine explosion and fire in this day of instantaneous communication, there is bound to be instantaneous public reaction.

So it was on November 20, 1968 when the Farmington Mine of the Consolidation Coal Company suffered an ignition, explosions and fires that created a literal underground inferno.

The tragic events that occurred in that West Virginia community, just about five years ago, brought about a series of reactions that have changed the American coal industry for all time.

You know, and I know, that the Farmington disaster took place in a coal mine of a well-established company, a company with great experience, great resources, modern skills and tremendous productive capacity, efficiency and technological expertise.

The public knows only that the disaster took the lives of still another seventy-eight coal miners, that wives were widowed and children made orphans.

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The public knows that it watched on television the desperate vigils of the families of the trapped men, that it witnessed the announcement of the decision to seal the mine. The public knows that it was appalled by the enormity of what it saw and heard.

The public, through the Congress of the United States, demanded once again that legal action be taken to make the Nation's coal mines safe. There were outcries of indignation in the Congress, in the press, and on television. Congressional committees went into critical critique. Hearings on newly drafted mine safety legislation were held. The words that were expressed by the many parties took many forms, but the theme was uniform:

John Corcoran,¹ chairman of the board of the National Coal Association and president of Consolidation Coal Company stated that, "In the regulatory area, we favor and will support any meaningful and constructive changes in laws and regulations that will improve coal mine safety." He went on to cite safety of the miners as the first priority, stating that, "on humanitarian grounds alone this should be self-evident."

Likewise, Stephen F. Dunn² , president of the National Coal Association, made his position clear, "At the outset...I want to state as emphatically as I can that the coal industry regards the safety and health of coal miners as paramount" and

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that "Our common objective is to make the coal mines safer."

Senator Edward M. Kennedy³ of Massachusetts acknowledged in testimony that the Senate committee, "is engaged in the most important work that Congress can perform — the saving of a human life."

And of course Woods G. Talman⁴ , chief inspector coal operations, United States Steel Corporation, after citing previous safety efforts and accomplishments, summed it up well when he said, "Progress, yes; trends, dramatic, but a building in Washington reminds us: 'The past is prologue.' Let us look to the future. Let us connect up the islands. Let us share a sense of urgency."

These espousals caused the Congress to legislatively describe the miner as the industry's most precious resource. And it was within the ambit of this purposeful pronouncement and atmosphere of need that the legislature granted succor to those whose lot it is to toil in the deep and the dark: the Federal Coal Mine Health and Safety Act of 1969 was born. Its provisions became operative on that day in December of 1969 by the signature of a President of the United States of America. It supplied a new spirit for safety.

I need not delve into basic law as to statutory interpretation, which suggests that legislation must be interpreted in light of the corrective or remedial purposes for its

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enactment. Cases in this regard are legion. These purposes are enunciated by the prevailing mood patent at the time of enactment and the evils sought to be remedied. We must never forget this fact. We, of course, hope the Act is written in terms sufficiently precise so that persons reading in good faith can understand, and likewise, and even more important, in terms sufficiently precise so that persons reading in bad faith cannot misunderstand.⁵ Be that as it may, the purposes for passage of the Act, spawned in an atmosphere and environment of need and in a mood and tone of a paragon of purpose, must prevail over all else. It must be interpreted accordingly. In this regard, to paraphrase Thoreau, everyone must step out to the cadence of the same drummer. But as is the way of human nature and normal reaction of man, induced by the ticking of time and the turning of the calendar's pages, each of us soon hears the cadence of a different drummer and we usually step out to the meter that we individually hear, however measured or far away.

But we must fully understand and never forget the legislation with which we have been left. It is said by some to be more drastic than any ever enacted, but still it seems to others to be insufficient to neutralize the perils of the pits. But again, and with the risk of being repetitious, in considering the Act's provisions we must give all benefit and resolve all doubt in favor of safety of the men in the mines.

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This should be the resolve as to any attorney, or any other persons in any way dealing with administration of the Act. I utter these words knowing full well that I cannot dictate to the legal profession. I hope the profession will listen, hear, and assume such position when planning its course in this field of mine safety. I hope that when representing a client in the area of mine safety the members of our profession will not act as mere Hessian soldiers. Our job as attorneys is not to fight an adversary as disinterested parties seeking only to avoid and evade the law. Our job in behalf of our clients is to meet the law head on; to make the law mean what its purpose states: to bring safety to the coal industry. But still blend itself to the free enterprise system under which we live and so zealously must protect. As attorneys, we must convince our clients that it is to their best interest to practice safety. We must impress on our clients, as I am sure they know, realize, and feel, that when the line is drawn between production and human life, human life must come first.

In this regard, it is reassuring to read the words of Guy Farmer⁶ , then counsel and now president of the Bituminous Coal Operators Association, when he said, "We have no intention of proposing gimmicks or procedural devices or attempt to defeat the effective administration of the law." I think, quite frankly, that the coal industry can live under this Act and can forge a policy that recognizes the imposed obligations, and can endure consistent with that free enterprise system.

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With these concepts kept keenly in mind, I want to touch upon a few of the rights guaranteed the individual coal miner by the Act, and the means at his disposal to realize them. Much has been said in the past that individual responsibility should be aroused and such responsibility maintained in the area of mine safety. There is no room for complacency in this regard, though we know that a certain callousness develops from men becoming inured due to exposure to dangers and hazards for long periods of time. We also recognize the human equation in this regard. However, the exercise of this individual responsibility has, in certain areas under the Act, become a protected activity. The Act supplies the right to the miners to exercise individual responsibility and insulates him from any acts of discrimination as a result of such activity. This insulation is broader and more encompassing than some would like to believe, yet is deemed woefully inadequate by others.

The industry, as a whole, will realize, however, that it is the prime mover for the operation of the mine and the production of coal, and, of course as the saying goes, if you dance, you must pay the piper. I'm sure that at times, as the burden of the Act comes to bear upon the industry, particularly during the production cycle, one must wonder how many times must the piper be paid for his song.

But I don't think things...