"Let me ask if the men who own this mine would as unhesitatingly go down in it to win bread as the poor fellows whose lives were snuffed out. . . . What they would do for themselves they must be compelled by law to do for their workmen." -- Labor organizer John Siney at the Avondale, Pa., disaster where 110 miners died in 1869.
ELMER YOCUM was a rugged coal miner, no longer here to read this, but as the tough new economizers and regulation-slashers ready to take power in Washington, his place in history is worth remembering.
That history is a remarkable narrative of the way things sometimes work in a society that lately is billed as being weary of an intrusive government and too much regulation.
The buzzwords make fine political fodder, but they mask a sobering reality: Lives often depend on federal regulations and on the economic forces that influence the regulators.
So this is about life-and-death decisions in a small but dangerous corner of the American workplace -- the underground coal, metal and mineral mines where about 160,000 souls labor.
Back in 1969, Elmer Yocum came down from West Virginia to tell Congress about an important new device that would save lives in the mines.
That was at a time when the country was going through one of its angry paroxysms of guilt over slaughter in the mines, not long after 78 men died in an explosion at a Consolidation Coal Co. mine near Farmington, W. Va.
Congress was in the process of passing a few mine-safety laws (reforms historically come after those mass killings that draw morbid headlines) and Yocum's testimony was heard intently.
He demonstrated a breathing device, produced by the Auer Co. of West Germany, that would use a chemical, potassium superoxide, to convert a miner's breath to oxygen and provide life-support in a disaster for at least 45 minutes
December 1970: Thirty-eight men die in an explosion at the Finely Coal Co., Hyden, Ky. Oxygen devices, experts say, might have saved some.
The Auer (pronounced "hour") device, using an old principle, offered a new hope for miners trapped underground by fires and explosions. It would replace a self-rescue unit used then -- and still used today -- that only converts carbon monoxide to carbon dioxide, provides no oxygen and protects against no other toxic fumes.
If fatality statistics have any meaning, the Auer device was a guaranteed life-saver. Roughly one-fifth of all coal mining deaths are due to asphyxiation and suffocation. The 45 minutes of oxygen from an Auer unit literally would be the difference between life and death for many miners.
Following a recommendation by the National Academy of Engineers and heeding Elmer Yocum's plea on behalf of the Auer device, Congress wrote into law that oxygen-generating self-rescue units offering at least one hour's protection must be provided for each miner.
Eleven years, more than $5.3 million in federal research money and untold manhours later, the devices still are not in the mines. During that interval, 1.671 coal miners have died. Many of them roughly 334 who died of suffocation might have had a chance with the rescue device Yocum was plugging. But that gets ahead of the story.
May 1972: Ninety-one men suffocate in a fire at the Sunshine Silver Mine in Kellogg, Idaho. Oxygen devices, experts say, might have saved some.
The battle over the new self-rescues now is being fought in the U.S. Circuit Court of Appeals for the District of Columbia. The public-interest Center for Law and Social Policy, representing miners, is attempting to prevent the Labor Department from delaying any longer in ordering the devices into the mines.
Ironically, the standoff finds Labor's Mine Safety and Health Administration (MSHA) aligned with a coal industry that has argued vehemently for years that the new devices simply have not been tested adequately -- notwithstanding hundreds of successful tests and government certification of the breathing devices.
Another irony: the problem may have begun with a blooper by Congress. The 1969 law called for an hour device, even though no such animal existed. It is likely that then-sen. Jacob K. Javits (R-N.Y.), whose language became law, meant an Auer device rather than an "hours" device, an important semantic difference. The Auer, remember, could be guaranteed for only 45 minutes, so it didn't qualify. But none of the legislators or sharp lawyers they employ caught that nuance, which turned out to be critical.
Once the law was passed, the U.S. Bureau of Mines rushed out contracts for development of a one-hour breathing device. The need was fairly plain: the Auer concept had to be expanded to cover 60 minutes and the device had to be sufficiently small and light for a miner to carry about underground.
Hindsight, of course, comes easily. But no one in Congress, in the industry, in the federal bureaucracy or the United Mine Workers thought of a more logical approach -- a simple amendment of the law to put the Auer device, with its 45-minute guarantee of oxygen, in the mines immediately.
The snarl that ensued after the confusion between Auer and hour became one of those modern classics. The bureau's research was slow, expensive and discouraging. Industry objected to the potential cost and the pressure of regulation. Regulation writers took their time. Congress and the UMW paid little attention to the delays.
March 1976: Fifteen men die in an explosion at the Scotia Coal Co. mine, Ovenfork, Ky. Oygen devices, experts say, might have saved some.
But by 1977, MSHA's predecessor, the Mining Enforcement and Safety Administration, (MESA), and the National Insitute for Occupational Safety and Health (NIOSH), were convinced that a newly developed little brother of the Auer -- with a60-minute oxygen guarantee -- was ready for placement in the mines.
The decision of MESA chief Robert E. Barrett to move ahead with proposed regulations drew immediate fire from industry. Then, as now, the argument of the Bituminous Coal Operators Association and the American Mining Congress was that sufficient tests had not been conducted to assure the safety of the devices. At another point they objected that the government had not carried out an economic impact study (it turned out not to be required), causing more delay.
But Barrett, a former safety inspector, stuck to is guns. His letters to the BCOA and the AMC forcefully rejected their arguments. He proposed regulations in late 1977 and called for public comment. The industry commented at length and demanded public hearings, where again their objections were aired, and more time consumed.
July 1977: Four men die in an explosion at P & P Coal Co., St. Charles, Va. Oxygen devices, experts say, might have saved some.
Barrett weighed the comments and moved forward. A year later, in November 1978, the final regulations were published by the agency (by then it had become MSHA), giving the industry two more years until Dec. 21, 1980, to obtain one of the two approved 60-minute breathing devices. But it was agreed that more testing would go on during the two-year period.
And the two-year period would allow the manufacturers to tool up and begin producing the devices. One approved model came from Auer's American proprietor, Mine Safety Appliances Co. of Pittsburgh. The other came from the German Draeger Co., represented here by National Mine Service (NMS) of Pittsburgh.
April 1978: Five men are asphyxiated at the Pittston Co. mine, Duty, Va. Oygen devices, experts say, might have saved some.
The producers' efforts drew a curious response. Although a few coal companies bought devices before last month, most of the production found no market. As of Dec. 1, according to NIOSH, neither firm had any outstanding orders. NMS officials will give no details, but they acknowledge that they hvae "thousands" of devices in stock ready to be sold.
"The Draeger engineers are satisfied as to the dependability of these units," an NMS official said. "The company is over 100 years old; it has made different types of breathing devices since prior to 1900; they don't take their responsibility lightly."
"Despite the coal industry's questions about the reliability of the Draeger unit, it is an understatement to say it is better than the limited self-rescue unit that miners now use."
Everett Acord, safety director for the UMW, agreed: "These new units are day and night better than what the miners have now. We need to get these things into the mines now because they really are the difference between life and death."
Early industry objections over cost (a single Draeger sells for $585, but in bulk costs about one-third less) turned to new objections about reliability, performance and mode of placement of the new units in the mines.
By last fall, the BCOA and AMC had whipped up a feverish campaign to persuade MSHA to back away from the Dec. 21, 1980, effective date for the regulation.
The campaign reached a peak in November when Joseph P. Brennan, president of the BCOA, and Allen Overton, head of AMC, wrote an urgent letter to Robert B. Lagather, the assistant secretary of labor who directs MSHA. They noted "their desire that safe and effective self-contained self-rescuers be provided to underground coal miners at the earliest possible time." But they also noted deep concerns about reliability of the MSHA and NIOSH-approved units. They wanted more study and testing.
On Dec. 5, with the deadline less than three weeks away, Lagather published a notice in the Federal Register, announcing a delay of the effective date until June 21, 1981. That, he said, would allow adequate time for the remaining tests. But the suddenness of his decision left miners little time to react. The UMW, the United Steelworkers and the AFL-CIO sent appeals to Labor Secretary F. Ray Marshall, urging that Lagather be overruled. The order was allowed to stand.
At that point the Center for Law and Social Policy, acting for miners in Illinois and Central Appalachia, went to the Court of Appeals, seeking a stay of Lagather's decision. Labor Department attorneys and the AMC argued against the Center and the case remains before the court.
Everett Acord is more worried about the future than today."Industry tells me they want those devices in the mines, but they have problems with them," he said. "I wouldn't bet you that in June they'll have new problems. There's a big push now to let up on all the safety regulations because of the economic crunch. We are going to lose more coal miners if this happens. And I don't know what will happen when the Reagan administration is running the Labor Department."
J. Davitt McAteer, mine-safety expert and attorney at the Center, is more blunt. "In many areas, the issues are gray. But this one is the single most clearly drawn life-and-death issue that has faced the coal industry in at least a decade. A few companies object to these devices and the industry as a whole goes along with them. In the government there is a lack of will or desire to help these human beings. There's just no need to kill all the people we do in the mines. MSHA apparently doesn't give one happy damn about the people who die."
In the 11 years since Elmer Yocum came to Washington, however, the argument over life-saving devices has taken a subtle turn. Not even the industry any longer argues that the one-hour devices will not save lives. The dispute now is cast in other terms: reliability, durability, placement, storage.
Yocum retired from the mines after 40 years in 1978. He had been injured repeatedly and suffered from black lung disease, but he was a tough cookie. When his employer gave him a diamond pin commemorating long service, he sent it back with instructions about the orifice in which it should be lodged.
He died shortly after his retirement in an explosion in his garage. "He was upset with the whole safety picture . . . If he was here now, he'd be jumping up and down about these breathing devices," his son, William Yocum of Maidsville, W. Va., said the other day.