[Senate Hearing 108-156]
[From the U.S. Government Publishing Office]
S. Hrg. 108-156
PROPOSED MINE SAFETY AND HEALTH ADMINISTRATION RULE ON COAL DUST
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
SPECIAL HEARING
JULY 31, 2003--WASHINGTON, DC
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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COMMITTEE ON APPROPRIATIONS
TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri PATRICK J. LEAHY, Vermont
MITCH McCONNELL, Kentucky TOM HARKIN, Iowa
CONRAD BURNS, Montana BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HARRY REID, Nevada
JUDD GREGG, New Hampshire HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas MARY L. LANDRIEU, Louisiana
James W. Morhard, Staff Director
Lisa Sutherland, Deputy Staff Director
Terrence E. Sauvain, Minority Staff Director
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Subcommittee on Departments of Labor, Health and Human Services, and
Education, and Related Agencies
ARLEN SPECTER, Pennsylvania, Chairman
THAD COCHRAN, Mississippi TOM HARKIN, Iowa
JUDD GREGG, New Hampshire ERNEST F. HOLLINGS, South Carolina
LARRY CRAIG, Idaho DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas HARRY REID, Nevada
TED STEVENS, Alaska HERB KOHL, Wisconsin
MIKE DeWINE, Ohio PATTY MURRAY, Washington
RICHARD C. SHELBY, Alabama MARY L. LANDRIEU, Louisiana
Professional Staff
Bettilou Taylor
Jim Sourwine
Mark Laisch
Sudip Shrikant Parikh
Candice Rogers
Ellen Murray (Minority)
Erik Fatemi (Minority)
Adrienne Hallett (Minority)
Administrative Support
Carole Geagley
C O N T E N T S
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Page
Opening statement of Senator Arlen Specter....................... 1
Statement of David D. Lauriski, Assistant Secretary of Labor for
Mine Safety and Health, Mine Safety and Health Administration,
Department of La- bor.......................................... 1
Prepared statement........................................... 3
Statement of Joseph A. Main, administrator, Department of Health
and Safety, United Mine Workers of America..................... 5
Prepared statement........................................... 7
Statement of David A. Beerbower, vice president for safety,
Peabody Energy Corporation..................................... 11
Prepared statement........................................... 12
Questions submitted by Senator Robert C. Byrd.................... 23
PROPOSED MINE SAFETY AND HEALTH ADMINISTRATION RULE ON COAL DUST
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THURSDAY, JULY 31, 2003
U.S. Senate,
Subcommittee on Labor, Health and Human
Services, and Education, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 2:17 p.m., in room SD-192, Dirksen
Senate Office Building, Hon. Arlen Specter (chairman)
presiding.
Present: Senators Specter and Harkin.
opening statement of senator arlen specter
Senator Specter. Good afternoon, ladies and gentlemen.
Sorry to be a little bit late. We have had some complex
discussions on the energy bill which is currently pending, and
it looks as if we may have solved the problem of the energy
bill. That has occasioned just a little late start here.
We have three issues which the subcommittee is going to
take up in a moment, and all of this is in preparation for
floor action on the bill on Labor, Health and Human Services
and Education, where we have issues on overtime regulations. We
may have issues on the union financial audit matter. We may
have issues on the coal dust rules.
We are going to be functioning under very tight time
constraints, but I think we can get all of the issues covered,
and we are going to have to move along within the time
constraints of 5-minute opening statements.
STATEMENT OF DAVID D. LAURISKI, ASSISTANT SECRETARY OF
LABOR FOR MINE SAFETY AND HEALTH, MINE
SAFETY AND HEALTH ADMINISTRATION,
DEPARTMENT OF LABOR
Senator Specter. We start with Assistant Secretary for Mine
Safety from the Department of Labor, Mr. David Lauriski, who
prior to his current position served as chairman of the Coal
Mine Safety Committee for the Utah Coal Operators, a certified
mine safety professional. He attended Utah State University and
the College of Eastern Utah. Thank you for joining us, Mr.
Lauriski, and we look forward to your testimony.
Mr. Lauriski. Good afternoon, Senator Specter. I am pleased
to appear before you today to discuss two MSHA proposed rules
designed to limit miners' exposure to respirable coal mine dust
and its devastating effects.
I announced on June 24 that MSHA has stopped all work on
finalizing these proposed rules. We have recognized for some
time the need to reduce miners' risk of lung disease, improve
the coal mine dust sampling program, and restore miners'
confidence in it.
MSHA's two proposed rules in July 2000 on this same subject
as those we are discussing today, accepted public comment and
conducted public hearings. When I arrived at MSHA in May 2001,
I reviewed the state of miners' health and concluded that coal
miners continue to be exposed to excessive concentrations of
dust, and that there remains an unacceptable risk of miners
developing pneumoconiosis, or black lung disease. We are
aggressively using all the tools that the law provides
including enforcement, education and training, and technical
assistance, to address miners' health.
However, MSHA and our Nation's coal miners are working with
a respirable coal mine dust program that has not fundamentally
changed since 1980, and the current program has distinct
weaknesses that only regulatory action can affect. Since the
mid-1970's, MSHA has sought development of different kinds of
fast response, direct readout respirable dust monitors for
measuring the concentration of respirable dust. In 2001, I
found that personal dust monitors, or PDM's as they are called,
can produce a real-time readout of dust exposures, but they
were still in the development stage and not commercially
available.
With this knowledge and with the knowledge of the comments
received on the 2000 proposed rules, I determined that the
agency should repropose the proposed rule, known as plan
verification. That proposed rule would require mine operators
to verify and periodically monitor the effectiveness of their
mine ventilation plans for the purpose of limiting miners'
exposure to dust.
In consultation with the National Institute for
Occupational Safety and Health, NIOSH, I also decided that we
would seek further comment on the joint finding by NIOSH and
MSHA that the average concentration of respirable dust be
accurately measured over a single shift and reopened the record
on that as well. We did that in March of this year.
Both of these proposals were designed to reduce miners'
over-exposure to dust, thereby reducing the prevalence of black
lung. As part of this rulemaking process, we received 62
written comments on the proposals. In May, we held a series of
six public hearings to receive additional comments and drew 177
speakers and over 450 attendees.
Commenters recognized the agency's intent to create greater
protection for miners' health. However, during the hearings
representatives of both industry and miners, as well as
individual miners themselves, told us very clearly that they
preferred we wait for the results of testing of this new PDM
technology before proceeding with the rulemakings. And after
reviewing the public comments, we consulted with NIOSH and
found that the initial test results of the prototype PDM were
promising. At that point we stopped work on the rules.
MSHA is working with NIOSH to complete the in-mine tests of
the prototype PDM's. It will be necessary to successfully
complete this testing before we move on to a production model.
From what we have learned so far from the prototype testing,
the PDM is truly promising, but still not ready for regular use
by miners. Once testing of the prototype PDM has been concluded
and upon a positive finding by NIOSH and MSHA, each agency has
agreed to contribute $150,000 to purchase production type PDM's
for further testing.
Last week MSHA and NIOSH staff met to discuss the progress
of research and the requirements of future research. Next week
we are consulting with the parties involved in the in-mine
testing and the PDM manufacturer to plan for collaborative
research where production prototypes will be tested in coal
mining operations throughout the United States.
As we proceed with this testing, we believe it best serves
the mining community to leave the current rulemaking record
open. The long history of the reform of the Federal coal mine
respirable dust program contained in this extensive rulemaking
record should be preserved. Moreover, because we have extended
the comment period indefinitely, the results of the current in-
mine testing of the prototype PDM will become a part of the
public record. An open record ensures that all information
obtained during these discussions will be available to the
public. We believe that is important.
MSHA, of course, will continue to enforce the current dust
rules during the interim period while the PDM's are tested and
developed.
PREPARED STATEMENT
Mr. Chairman, my father worked underground as a coal miner
for nearly 50 years, the majority of which was at the coal
production face. He had evidence of black lung disease and
suffered from heart disease which I believe was exacerbated by
his years of mining. Improving miners' health and safety and
addressing the issues related to black lung disease are of
personal importance to me.
Again, thank you for your interest in the health and safety
of our Nation's miners and the opportunity to discuss these
important issues with you today, and I would be pleased to
answer any questions.
[The statement follows:]
Prepared Statement of Hon. David D. Lauriski
Mr. Chairman and Members of the Subcommittee: I am pleased to
appear before you today to discuss two MSHA proposed rules designed to
limit miners' exposure to respirable coal mine dust and its devastating
effects. As I announced on June 24, MSHA has stopped all work on
finalizing the proposed rules.
We have recognized for some time the need to reduce miners' risk of
disease, improve the coal mine dust sampling program, and restore
miners' confidence in it. Since the mid 1970s, MSHA has sought
development of fast-response, direct-readout respirable dust monitors
for measuring the concentration of respirable dust. An MSHA Task Group
reviewed the sampling program in 1991 and made recommendations for
improvement. The Secretary of Labor's Advisory Committee on the
Elimination of Pneumoconiosis Among Coal Workers made recommendations
in 1996. MSHA took prompt action on certain recommendations, for
example initiating a nationwide awareness program on the hazards
associated with exposure to excessive levels of respirable coal mine
and quartz dust and on ways to prevent occupational lung disease. With
NIOSH, we also implemented a special screening initiative called the
Miners' Choice Health Screening Program (Miners' Choice) as part of the
``End Black Lung Now and Forever'' campaign. Miners' Choice offered
chest x-rays for both underground and surface coal miners. Thousands of
miners participated. Other Advisory Committee recommendations required
rulemaking; in response, MSHA proposed two rules in July 2000 on the
same subject as the proposals we are discussing today, accepted public
comment, and conducted public hearings.
When I arrived at MSHA in May 2001, I reviewed the state of miners'
health and concluded that coal miners continued to be exposed to
excessive concentrations of dust and that there remains an unacceptable
risk of miners developing coal workers' pneumoconiosis, or black lung
disease. I found that personal dust monitors (PDMs) were still in the
development stage and not commercially available. With this knowledge,
and with knowledge of the comment received on the 2000 proposed rules,
I determined that the Agency should repropose one of the 2000 proposals
and re-open the record on the other.
The first proposed rule, called ``Verification of Underground Coal
Mine Operators' Dust Control Plans and Compliance Sampling for
Respirable Dust,'' or ``Plan Verification,'' would require mine
operators to verify and periodically monitor the effectiveness of their
mine ventilation plans in limiting miners' exposure to dust. The second
proposal, ``Determination of Concentration of Respirable Coal Mine
Dust,'' or ``Single Sample,'' reopened the record on the joint finding
by the National Institute for Occupational Safety and Health (NIOSH)
and MSHA that the average concentration of respirable dust can be
accurately measured over a single shift. Both of these proposals were
designed with the goal of sending more miners home healthy every
working day.
As you know, the past decades have seen great strides in reducing
miners' overexposure to respirable coal mine dust and thereby lowering
the prevalence of black lung disease. The percentage of dust samples
taken by mine operators that exceeded the 2-milligram per cubic meter
standard has decreased from 54 percent in 1970 to 8 percent in 2002.
However, NIOSH and MSHA recently documented that black lung continues
to occur and everyone agrees that the current rate of black lung
disease is unacceptably high and that we need to increase our efforts
to further reduce levels of respirable dust in coal mines. We are
aggressively using all the tools that the law provides--enforcement,
education and training and technical assistance to address miners'
health. However, MSHA and our nation's coal miners are working with a
respirable coal mine dust program that has not fundamentally changed
since 1980, and the current program has distinct weaknesses that only
regulatory action can change.
One concern is the laborious and cumbersome process that is
required to identify a violation of the coal mine dust limits. MSHA is
the only worker health and safety enforcement agency that needs to take
several full-shift samples and average the results in order to identify
a violation of a health standard. This is a crucial concern because
taking an average can mask overexposures that may affect the health of
miners.
In March of this year, we published a new regulatory proposal on
plan verification and, along with NIOSH, we reopened the rulemaking
record on the use of a single sample for compliance determinations.
These proposals are designed to reduce miners' overexposure to dust,
thereby reducing the prevalence of black lung. One would require mine
operators to verify the effectiveness of their mine ventilation plans
in limiting miners' exposure to dust; the other would allow MSHA to
make compliance determinations based on a single sample, rather than an
average of multiple samples, which can mask overexposures. As you know,
the rulemaking process is designed to elicit comment from stakeholders
affected by the proposals. As part of that process, we received 62
written comments on the proposals. In May we held a series of six
public hearings to receive additional comments. These hearings were
held in Pennsylvania, West Virginia, Indiana, Kentucky, Alabama and
Colorado and drew 177 speakers and over 450 attendees.
Commenters recognized the Agency's intent to create greater
protections for miners' health. However, during the hearings,
representatives of both industry and miners, as well as individual
miners, told us very clearly that they preferred we wait for the
results of testing of new PDM technology before proceeding with the
rulemakings. A PDM is designed to produce a real-time readout of dust
exposure so that, if there is a problem, action can be taken promptly
to correct the problem and reduce the risk of miners' overexposure to
respirable dust. By deferring action on this rulemaking, we will be
able to gather data and build a consensus on identifying, developing,
and implementing the most effective technology to address this issue.
In our proposal, we provided for optional use of PDMs, should they
prove feasible and be approved for use. At the same time, we felt that
we ought to take feasible action as soon as possible to improve the
coal mine dust control program, rather than delay until completion of
the development and testing of the PDMs, since there is no certainty
regarding how long that might take to complete.
After reviewing the public comments, we consulted with NIOSH and
found that the initial test results of a prototype PDM were promising.
At that point, we suspended work on the rules. On June 24, we formally
announced that we had stopped all work on finalizing the proposals.
Should the PDM prove to be accurate and reliable, we would then examine
how the PDM could provide optimum benefit in a regulatory scheme for
controlling dust overexposures.
MSHA is working with NIOSH to complete the in-mine tests of the
prototype PDMs in mines located in Pennsylvania, West Virginia, Alabama
and Utah. It will be necessary to successfully complete this testing
before we move on to a production model. From what we have learned so
far from the prototype testing, the PDM is truly promising, but still
not ready for regular usage by miners.
Once testing of the prototype PDM has been concluded, and upon a
positive finding by NIOSH and MSHA, each agency has agreed to
contribute $150,000 to purchase production prototype PDMs for further
testing. Last week, MSHA and NIOSH staff met to discuss the progress of
the research and the requirements of future research for the production
prototype units. Next week, we are consulting with the parties involved
in the current NIOSH in-mine testing and the PDM manufacturer. We will
be getting input on plans for the next step--collaborative research
where production prototypes will be tested at coal mining operations
throughout the United States.
As we proceed with the testing, we believe it best serves the
mining community to leave the current rulemaking record open. The long
history of the reform of the Federal coal mine respirable dust program
contained in this extensive rulemaking record should be preserved. The
record contains all public comment from the July 7, 2000 and March 6,
2003 rulemaking proposals, transcripts of the 2000 and 2003 public
hearings, the 1996 recommendations of the Advisory Committee on the
Elimination of Pneumoconiosis, and other evidence relevant to the
rulemaking. Moreover, because we have extended the comment period
indefinitely, the results of the current in-mine testing of the
prototype PDMs will become a part of the public record. An open record
ensures that all information obtained during these discussions will be
available to the public. We believe that is important. The record will
remain open until a decision is made on our next step.
MSHA of course will continue to enforce the current respirable coal
dust rules during the interim period while the PDMs are tested and
developed.
Mr. Chairman, like many, I come from a coal mining family. My
father went to work underground as a coal miner in his teens in order
to help support his family. His mining career spanned nearly 50 years
of underground work, the majority of which was spent in the face of the
mine. He had evidence of black lung disease and suffered from heart
disease, which I believe was exacerbated by his years in the mines.
Improving miner safety and health and addressing the issues related to
black lung disease are of personal importance to me.
Again, thank you for your interest in the health of our Nation's
miners and the opportunity to discuss these important issues with you
today. I would be pleased to answer any questions.
Senator Specter. Well, thank you very much, Mr. Secretary.
I think that the preferable way to proceed, before
questioning you, would be to have the second panel present
their views and have the entire picture on the table. Then we
can proceed to Q&A. So if you would step down for just a
minute, I would like to call on Mr. Joseph Main and Mr. David
Beerbower to testify.
STATEMENT OF JOSEPH A. MAIN, ADMINISTRATOR, DEPARTMENT
OF HEALTH AND SAFETY, UNITED MINE WORKERS
OF AMERICA
Senator Specter. Mr. Main has been the Administrator of the
United Mine Workers of America, Department of Occupational
Health and Safety, since 1982. Since 1998, he has served on the
Centers for Disease Control and Prevention Federal Advisory
Committee on Mine Health Research. Welcome, Mr. Main. We look
forward to your testimony.
Mr. Main. Thank you, Senator. On behalf of the miners of
this country, I want to pass on their appreciation for the
hearing that is being held today. It is on a very important
issue that has a lot to do with the very lives of coal miners.
I do not know how much you have heard about the public
hearings that have been held throughout the coal fields on the
proposed rule that MSHA has issued, but I could tell you this.
After six public hearings, it was soundly rejected by coal
miners across this country. After about 200 witnesses testified
at those public hearings, there was no support for this rule.
One of the great concerns of the miners is that that rule
is still alive and well. It still sits ready, poised to have a
final rule crafted from, and it contains many provisions that
violate the Mine Act, ignore the historical record that has
been built, including hearings before your very committees in
the past to reform the black lung program. It fails miserably
to address the needs of the Nation's miners.
We urge, as one of the outcomes of this, for action to be
taken through this body to cause the withdrawal of that rule
which would harm miners in our opinion, and in its place have
the agency focus its full attention on crafting a rule that the
historical record has shown that is needed and that is
desperately wanted by coal miners, one that will reduce the
levels of coal mine dust in this country and eliminate the
unhealthy coal dust that miners breathe that give them the
black lung disease.
There is several provisions of that proposal, and I am not
going to get into them today and we do not have the time to do
that. But I am going to hit on a couple issues.
One of the core issues of this proposal that is wrongheaded
would turn on its head provisions that Congress gave miners in
the 1969 Coal Mine Act. What it would do would be to allow mine
operators to seek approval from MSHA to increase the dust
levels in the Nation's mines and use, instead of environmental
controls, respiratory controls. That we think is wrongheaded
and is a complete step backwards in terms of protecting the
Nation's miners. While doing that, under the proposals, which
are very complicated and confusing and difficult for miners or
even safety professionals to understand, but the nonetheless at
the end of the day, would serve to allow dust levels to rise in
the Nation's coal mines up to, legally, 8 milligrams of dust.
Now, that is just not germane for the mine workers saying that.
That is what is on record by the agency officials themselves.
It will also rise to a level of, according to the MSHA
officials, 9.32 milligrams before the operator could be cited
where they would be on that so-called 8 milligram standard.
How this occurs is real simple. Where we take a dust sample
at today in the mine on a section, the law says that you cannot
exceed 2 milligrams. What the plan is, is to allow operators to
submit proposals to increase the dust levels, claiming they
have exhausted their engineering controls, and in lieu of those
engineering controls, put air stream helmets on the miners.
Senator Specter. You say the law allows what precisely?
Mr. Main. The law right now says that you cannot exceed 2
milligrams of respirable dust per cubic meter of air averaged
over a shift, and that law gets turned on its head by using a
deceptive formula that allows a factor to be applied that would
allow the dust to be raised four times that level based on
approvals from MSHA to do so.
But the key here is that operators would abandon the
development of new engineering controls because the operators
would put the agency in a box to prove to me they are feasible.
They do not exist yet, for example. It is going to completely
end, we believe, over the long term the development of new dust
controls and allow by its own measure the increase of dust.
Now, the agency has argued it does not do that. That is not
in there. It is in there. Why else would you have a provision
in the law that allows you to seek to increase dust levels and
to use respirators if the intent was not to do that, because
that is the clear end result.
We urge the committee to act to end that provision as well
as other provisions of the proposed rules that is very harmful
for miners. In 1995, NIOSH issued a criteria document
recommending a number of changes to the respirable dust
program. In 1996, a U.S. Department of Labor Secretary
appointed a fellow advisory committee to come up with
recommendations to end this terrible disease, to develop
standards. Laced through these proposed rules is standard after
standard that both ignore and are contrary to the
recommendations of both of those bodies. And we urge the
attention be placed on building this continuous dust monitor,
which I just personally tested this last week in an underground
mine in Alabama. It is a terrific device and it will help
miners.
PREPARED STATEMENT
But I think there is more to the record than 5 minutes
allows us to address today. Mr. Chairman, I will just say this
in closing. I, on behalf of the miners who have come out to
these hearings, urge this body to act to cause that proposed
rule issued March 6 by MSHA to be withdrawn and removed from
further consideration. Thank you very much.
[The statement follows:]
Prepared Statement of Joseph A. Main
I appreciate the opportunity to appear here today on behalf of the
United Mine Workers of America and miners across the country to address
the ``Proposed MSHA Rules on Coal Dust'' and the coal mine respirable
coal mine dust program. Included as part of my testimony is an April
17, 2003 letter I forwarded to David Lauriski, Assistant Secretary of
Labor for MSHA. It includes extensive comments on MSHA's proposed rules
to completely overhaul the current respirable dust standards. Those
proposed rules are 30 CFR Parts 70, 75, and 90--Verification of
Underground Coal Mine Operators' Dust Control Plans and Compliance
Sampling for Respirable Dust, and 30 CFR Part 72--Determination of
Concentration of Respirable Coal Mine Dust. Those proposed rules need
to be withdrawn, and new proposals must be crafted to meet the needs of
miners.
Miners across the country were surprised and dismayed by the
proposed respirable dust rules issued by MSHA on March 6, 2003. They
are complicated, confusing and difficult to comprehend. More
importantly, they would erode the protections contained in the Federal
Mine Safety and Health Act (Mine Act). They also are contrary to
numerous recommendations of NIOSH: the NIOSH, 1995 Criteria for a
Recommenced Standard--OCCUPATIONAL EXPOSURE TO RESPIRABLE COAL MINE
DUST, as well as the 1996 Report of the Secretary of Labor's Advisory
Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers.
There is an unquestionable need to overhaul the respirable coal
mine dust program to lower the unhealthy coal mine dust levels. It has
been known for years that if miners breathe unhealthy coal mine dust,
their lungs can be destroyed and lives cut short. The unhealthy dust
causes the disease called pneumoconiosis and often referred to as the
``Black Lung'' disease has claimed the lives of tens of thousands of
miners, many who could only survive while attached to oxygen tanks
gasping for air. A study entitled ``Pneumoconiosis Prevalence Among
Working Coal Miners Examined in Federal Chest Radiograph Surveillance
Programs--United States, 1996-2002'' issued by NIOSH in April of this
year confirmed that working miners are still getting the disease. It
identified several hundred working miners afflicted with stages of the
disease based on recent chest x-rays. Most of the x-rays were taken
through the ``Miners Choice'' chest x-ray program which your committee
provided special funding for in MSHA's appropriations. That study
however did not include x-rays from many miners who work at smaller
mining operations suspected of being the most at risk.\1\ Over 1,000
miners continue to die each year from the disease. The anguish and
suffering of victims afflicted with this disease is immeasurable.
Disability and health care costs from the disease are in the tens of
billions of dollars. According to the Department of Labor, as of May
this year there were about 106,519 recipients of federal black lung
disability benefits. That does not include about 6,000 black lung
claims being paid by mine operators or miners receiving state
disability benefits not covered by the federal program.
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\1\ Funding for the ``Miners Choice'' program was unfortunately
ended by MSHA with a majority of the nation's miners not receiving the
x-rays. I urge congressional action to restore it, and to shift funding
for the program to NIOSH who is better suited to conduct the chest x-
ray program.
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The respirable dust sampling program has been wrought with
manipulation and fraud. That has been the subject of congressional
hearings, investigations and study over the years. Government records
show that in the 1990's alone, over 160 companies and/or individuals
were convicted on criminal charges of fraudulent dust sampling
practices which hid unhealthy dust levels. Given the historical record,
that may be just the tip of the iceberg. Just two months ago, a mine
operator and four company officials were convicted in federal court on
charges of violating the federal mine laws aimed at controlling coal
mine dust. According to reports, the violations occurred over a four
year period from the time the mine opened until the company was caught.
Endless complaints have been lodged by miners about manipulation of
the dust sampling program by mine operators for years as they have
called on the government to reform the respirable dust program.
However, the proposals MSHA presented for public comment both ignored
lessons learned over decades of illness and operator abuse, and
disregarded promising technological advances that the mining community
expects will present valuable ``real-time'' information which can
prevent miners' future over-exposure to the deadly dust.
MSHA's March 2003 proposals are filled with formulas, exemptions
and loopholes that are subject to unlimited interpretation. They are
wrongheaded, ill-advised and would not effect the necessary reform of
the respirable coal mine dust program.
While the recent proposals included some improvements, such as
taking a single respirable dust sample of a miner to determine
compliance, the improvements were overshadowed by numerous adverse
provisions. For example, they set the stage for allowing an increase in
respirable dust levels and would dramatically reduce compliance-
sampling in the nation's coal mines.
Congress made clear 33 years ago, with the passage of the 1969
Federal Coal Mine Health and Safety Act, that respirable coal dust in
the mine atmosphere was to be reduced to protect miners from disease.
Section 201(b) of the Mine Act states that ``. . . it is the purpose of
this title to provide, to the greatest extent possible, that the
working conditions in each underground coal mine are sufficiently free
of respirable dust concentrations in the mine atmosphere to permit each
miner the opportunity to work underground during the period of his
entire adult working life without incurring any disability from
pneumoconiosis or any other occupational-related disease during or at
the end of such period.''
The 1969 Mine Act also set the maximum dust levels that could be
allowed in the nation's coal mines. Section 202(b)(2) of the Mine Act
states that ``. . . each operator shall continuously maintain the
average concentration of respirable dust in the mine atmosphere during
each shift to which each miner in the active workings of such mine is
exposed at or below 2.0 milligrams of respirable dust per cubic meter
of air.''
The 1969 Mine Act prohibited the use of respirators as a substitute
for environmental controls. Section 202(h) of the Mine Act states that
``. . . Use of respirators shall not be substituted for environmental
control measures in the active workings . . .''
MSHA's proposals would overturn these specific protections by
allowing mine operators to exceed the maximum 2 milligram (mg/m\3\)
respirable dust standard and to replace environmental controls with
respirators. Those provisions would not only serve to increase
respirable dust in coal mines but would also interfere with the
continuing development of respirable dust controls that could contain
unhealthy coal mine dust.
In a September 10, 1997 document filed by then-General Manager of
Energy West Mining, Dave Lauriski (who is now current Assistant
Secretary of Labor for MSHA) while seeking rule making by MSHA on
broader use of respirators, Mr. Lauriski acknowledged that MSHA's
historical interpretation of the Mine Act prohibited the use of
respirators as a substitute for environmental/engineering controls. On
page 5 of that document, Lauriski stated the following: ``Nevertheless,
for years the Secretary (through the Secretary's delegates the
Assistant Secretary of Labor for Mine Safety and Health and officials
of the Mine Safety and Health Administration (`MSHA')) has taken the
policy position that, because Mine Act Sec. 202(h) states the `use of
respirators shall not be substituted for environmental control
measures,' it altogether prohibits the use of respirators (even as a
supplement to environmental controls) as a means of compliance with the
respirable dust standards of Title II of the Mine Act.'' Lauriski
disagreed with that interpretation by the government. Now that Lauriski
controls the reins at MSHA, he proposed implementing rules which
previous administrations rejected.
As for the increased respirable levels, these are not clearly
stated in the proposed rules but are apparent from the complicated
formulas, qualifiers and exemptions. Despite initial denials by agency
officials, the proposed rule would allow mine operators to increase
respirable dust levels and to exceed the 2 mg/m\3\ standard--even with
the possibility of having the average concentration of respirable dust
in the mine atmosphere of active workings approved by MSHA exceeding 9
mg/m\3\ before being considered illegal. One way for that to occur is
under Part 70.209 of the proposed rule. That proposed provision would
allow operators to (a) claim they believe they are using all feasible
environmental respirable dust controls, and then (b) file a request to
MSHA for approval to increase the dust levels exceeding the 2 mg/m\3\
including a mandate that miners must wear respiratory protection in
lieu of the environmental controls.
Definitions in Part 70.2 of the MSHA proposed rules including
Equivalent concentrations and Protection factor (pf) would be used to
establish the maximum levels of respirable to be approved when an
operator files a request to exceed the standard. Those definitions
(coupled with the previous provisions) could allow the respirable dust
levels to be increased up to a maximum of 8 mg/m\3\ at the same exact
locations measured with the same instruments the law currently
prohibits exceeding 2 mg/m\3\. Definitions in parts 70.2 including
Citation threshold value (CTV), Table 70-2 Part 70.218 and other
provisions would be used to determine when the operator would be cited.
Those standards could allow a mine to have respirable dust levels reach
9.32 mg/m\3\ before MSHA would cite the operator, even though the
current law prohibits dust levels exceeding 2 mg/m\3\. In other words,
the law does not permit this to occur.
An exchange between Joe Main, Administrator of Occupational Health
and Safety for the United Mine Workers of America, and MSHA official
Bob Thaxton, who was presiding over the May 6, 2003 public hearing on
the proposed dust rules, sheds more light on these proposals:
Mr. Main. Okay. And in this mine that I talked about, let's say
that you have this factor of four, you're at a mine environment
measured the same way we do now, reading 8 milligrams----
Mr. Nichols. Let's deal with that 8 milligrams. Did you tell Joe
that mine operators could go to 8 milligrams?
Mr. Thaxton. What we talked about, Joe, is that there is no 8
milligrams actually specified in the rule.
Mr. Main. That's right.
Mr. Thaxton. We said it's a protection factor that would be
assigned could, theoretically, allow somebody to go up to a maximum of
8 milligrams.
Mr. Main. When I asked you the specific question, Bob, okay, how
much dust, when you do that formula, that factor of four, how much dust
would you be actually measuring?
Mr. Thaxton. That's why I said----
Mr. Main. It could go up to what?
Mr. Thaxton. It could go up to a maximum of 8 milligrams.
The proposals also would substantially reduce compliance sampling.
The agency plans, through Agency policy, to reduce current compliance
sampling by as much as 90 percent. Compliance sampling would be reduced
to one shift a year in the vast outby areas of coal mines and as little
as three shifts a year on coal producing sections.
The proposals also ignored the extensive efforts by labor,
industry, and NIOSH, which were working cooperatively toward
development of a revolutionary ``continuous sampling'' device that
could change the landscape of the respirable dust sampling program. The
parties had supported development of along sought continuous dust
sampling device, with one that is now housed in a miner's cap light
battery compartment, that would--for the first time--provide accurate
and instantaneous information on the dust levels miners are exposed to
on a continuous basis. We were working to develop a strategy for
reforming the respirable dust program centered around the revolutionary
continuous monitoring device which could also address a number of
needed reforms. The particular device, called the PDM-1 (personal dust
monitor) has already undergone extensive development and testing and
has proved to measure dust as accurately as the dust sampling devices
currently in use.
Years of work, considerable taxpayer dollars, and the tremendous
efforts of the NIOSH research laboratory in Bruceton, Pennsylvania led
to the development of the PDM-1. By being housed inside the cap light
battery, it can be comfortably worn by miners. And unlike the current
dust samplers, the PDM-1 could provide miners instant and constant
information on dust levels they are exposed to on each shift--every
day; they also allow for a downloading of the dust data--even to MSHA--
at the end of the shift. It allows miners to project dust exposures for
the remainder of the shift and can lead to instant changes in dust
controls, thereby preventing overexposure to unhealthy dust. This
device would empower both miners and operators with accurate levels of
respirable dust so miners can be protected from unhealthy respirable
coal mine dust. The device can also be used for compliance sampling as
well as dust control verification on a daily basis.
The parties had anticipated that the PDM-1 device would be the
centerpiece of any revised respirable dust sampling program. MSHA
surprised the parties involved in the development of the continuous
dust monitor--even though it was proving to work accurately--and issued
the March 6, 2003 proposals just as NIOSH was preparing for the last
round of scheduled in-mine testing of the continuous dust sampling
devices. Not only is continuous dust monitoring not the centerpiece of
the MSHA proposals, but it is only mentioned as a suggestion which
operators may choose to utilize. That was despite the Agency's promises
to miners over the years to get such a needed device in the nation's
coal mines to protect miners from the unhealthy dust that has stricken
tens of thousands of miners.
MSHA's proposals also disregarded an extensive public record on
reforming the respirable coal mine dust program including the comments
on the respirable dust rules proposed by MSHA in 2000 that was soundly
rejected by both labor and industry. The 2003 proposals were from
flawed proposals which both labor and industry had demanded be
withdrawn in 2000. During the public hearing held by MSHA on May 6,
2003, John Gallick, a company safety manager for RAG Emerald Resources,
Emerald #1 Mine in Pennsylvania summed up the frustrations of both
labor and industry with the following statement: ``First let me say
that this rule appears to closely parallel the previous proposed rules
that were soundly rejected by all the stakeholders. I cannot understand
why MSHA has not listened to the stakeholders, and actually attempted
to develop a rule that the stakeholders could support.''
Miners from across the country attended the six public hearings
held throughout the coal fields to respond to the rules proposed by
MSHA earlier this year. When the public hearings ended one fact was
certain--the Agency proposals were soundly rejected. Despite
overwhelming demands for withdrawal of these rules, however, the Agency
refused to scrap them. Instead, it simply extended the comment period,
but adhered to the proposals as published in March 2003. This leaves
the highly-flawed proposals in place, from which final rules might
still be crafted. However, MSHA's proposals are so flawed that they
must be tossed out.
I urge this Committee to take action that would require MSHA to
withdraw the March 6, 2003 proposed dust rules and cause MSHA to go
back to the drawing board and draft new rules, rules that would address
the needs of the nation's miners to protect them from disease resulting
from unhealthy coal mine dust that has already claimed the lives of
tens of thousands of miners.
Such new proposals should include increased respirable dust
sampling--in particular mandating requirements for continuous dust
sampling devices in all underground coal mines; decreasing the
respirable dust levels in coal mines; sampling the miners' full shift
of work, with no margin of error added before operators will be cited
when unhealthy dust levels are identified. Compliance sampling also
needs to be required by regulation and in a way that would bring about
long overdue credibility to the respirable-dust program. Meaningful
miners' participation in the dust sampling program is also essential
for there to be confidence in the troubled respirable dust sampling
program.
It is imperative that among other improvements, the respirable dust
levels in coal mines are lowered and that sampling of the dust is
increased to assure miners are protected from disease. It is imperative
that the respirable dust regulatory program provide confidence that
coal mine dust is controlled to healthy levels so miners will not
suffer disease.
Senator Specter. Thank you, Mr. Main.
STATEMENT OF DAVID A. BEERBOWER, VICE PRESIDENT FOR
SAFETY, PEABODY ENERGY CORPORATION
Senator Specter. We now turn to Mr. David Beerbower, Vice
President for Safety, Peabody Energy Corporation, St. Louis,
Missouri. Thank you for joining us today, Mr. Beerbower, and
the floor is yours.
Mr. Beerbower. Thank you, Mr. Chairman. I am here
representing in my capacity as Vice Chairman of the National
Mining Association's Health and Safety Committee. I would also
note that I am the Chairman of the Health and Safety Committee
at the Bituminous Coal Operators of America, and we are
partnered with the United Mine Workers in several initiatives
together for safety and health.
I think it is important, as we talk about the issues here
today, that we really not focus all of our attention on the
debate about these rules, but I would rather focus on what we
envision--and I think the United Mine Workers and MSHA agree
with this--that the PDM could be the cornerstone for a vast new
paradigm in the way that we have looked at dust control and the
way that miners can control their exposures to dust.
In public testimony, we have put our comments into the
rulemaking process, and that is a matter of the record.
Suffice it to say, though, that we do support the Assistant
Secretary's decision to announce on the 24th of June that he
was suspending the current rulemaking to permit an ongoing
evaluation of the PDM. That evaluation will be completed prior
to closure of the rulemaking record and completion of that
regulatory initiative.
Simply put, we envision the PDM to be the centerpiece upon
which this new program should be built. On the week of June
23rd, we tested this device at one of our mines in southern
West Virginia, and I had the pleasure of being present during
some of that testing and did wear one of these devices. I was
amazed at the capabilities of this device, although there are
certain shortcomings that need to be worked on in the software
and in the hardware. I believe those are manageable and ones
that we need to move forward with if we are going to have this
device available to miners.
The good news about this device is it does show a miner
exactly what he is exposed to in real time on a personal basis
so that if he or she determines that they are being over-
exposed or they are in an area that needs some additional
controls, they can take immediate action to prevent any over-
exposure above the 2 milligram standard. This PDM represents a
technological breakthrough that permits extended real-time
assessment of respirable dust concentrations and will enable
real-time corrective actions to prevent those over-exposures.
We commend MSHA and NIOSH for their continued support and
commitment to purchase 25 production models of the prototypes
following completion of this initial round of testing. The 25
units will permit broader testing in different applications to
ensure the integrity, practicality and feasibility of these
units. This final step is an integral element of the validation
process and will enable the parties, labor, industry, and
Government, to then consider a deployment strategy upon which
new regulations can be based.
Beyond the PDM, we have shared with MSHA on several
occasions what we believe to be a background for a new dust
paradigm. Our recommendations were contained in a series of
letters that provided an outline for a new respirable coal dust
sampling program that we believed then would enhance the
protections afforded to miners against the potential health
consequences of excessive dust.
However, the potential that the PDM offers has moved us
beyond our thinking that we had in 1996. If this potential
proves to be feasible, we see the PDM being the keystone of a
new respirable dust regulation that will enable us to prevent
over-exposures.
PREPARED STATEMENT
Mr. Chairman, protecting miners from over-exposures to
respirable dust remains a complex and challenging issue, and it
is one that we are committed to as operators and as an
association. There are many factors that play into this. Mine
design, geology, and equipment are important variables in
designing an effective dust control plan. I believe we are on
the verge of having a tool that holds significant promise to
assist us in fulfilling our ultimate goal, the elimination of
workers' pneumoconiosis.
Thank you for the opportunity to speak here.
[The statement follows:]
Prepared Statement of David Beerbower
Thank you, Mr. Chairman and Members of the Subcommittee. I am David
Beerbower, Vice President of Safety for Peabody Energy Corporation. I'm
appearing today in my capacity as Vice Chairman of the National Mining
Association Safety and Health Committee. I would note that I also serve
as Chairman of the Safety Committee for the Bituminous Coal Operators
Association, which partners with the United Mine Workers in a joint,
Safety and Training Committee. I have been involved in my present
capacity for 12 years and have worked in various operating positions in
underground coal mines during my 34 year career with the industry.
Before I turn to the specifics of the Mine Safety and Health
Administration's (MSHA) respirable coal mine dust program a few words
about NMA and the importance of mining to our everyday lives--a fact
overlooked by most Americans. NMA represents the producers of energy,
industrial and agricultural minerals. NMA members produce the majority
of coal, copper, gold, lead and zinc produced in the United States.
Without their products the words read here could not have been
produced. Before hardware and software, you must have earth ware--the
minerals that form the foundation on which the U.S. economy is built.
The ink that forms the words you read is derived from minerals. The
light by which you read may be produced by a tungsten filament fueled
by electricity transmitted through copper wire and generated from the
burning of coal which produced nearly 56 percent of our nation's
electricity.
Yet, despite its indispensable contribution to American commerce,
mining is a business subject to the often perverse whims of both
geology and economics. Still, to the industry's credit, technological
ingenuity, better training, improved engineering methods and
conscientious safety awareness by miners, mine operators and equipment
manufacturers has enabled the industry to achieve commendable safety
and health improvements.
Recently much attention has been focused on a recent regulatory
initiative by the Mine Safety and Health Administration to revise the
existing regulations governing how coal operators sample for and
protect miners from exposure to respirable coal mine dust. This issue
is of paramount importance to the industry as we share a common goal
with MSHA and the coal miners themselves--the total elimination of coal
workers pneumoconiosis.
Since enactment of the Mine Act we've seen a dramatic decline in
respirable coal dust levels. The statutory limit of 2.0 mg/m\3\ which
became effective in 1972, three years following passage of the Act, has
improved the conditions to which miners are exposed. In 1969 the
average dust concentration was 7.7 mg/m\3\. Today we find, based upon
the results of sampling conducted by both operators and MSHA, average
dust levels of 1.1 mg/m\3\, well below the statutory limit, but problem
areas still exist. Today some operations have reached the technological
limitations of traditional engineering and environmental controls and
in those cases interim measures are needed to protect miner's health
while new control technologies are explored.
It is not our intent today to get into a debate about the benefits
or shortcomings of MSHA's recent regulatory initiative. Rather, we want
to share our views of what we envision a new dust sampling program
would encompass. Our public testimony on the proposed rule is part of
the rulemaking record and is available. Suffice it to say that we
support the Assistant Secretary's decision announced June 24 to suspend
the rulemaking to permit on-going evaluation of new dust sampling
technology, the Personal Dust Monitor (PDM). The evaluation will be
completed prior to closure of the rulemaking record and completion of
the regulatory initiative.
Simply put, we envision the PDM to be the centerpiece upon which
the new program is built. Never before have we had within our grasp a
tool to empower miners and mine operators to initiate intervention
actions based upon the results of real-time sampling. We say this
recognizing that testing of the PDM has not been completed and that the
tests conducted to date indicate that manageable design changes and
software modifications are necessary before production prototypes are
manufactured. But even with this we are excited about the prospect for
this technology and how dramatic a difference it can make.
During the week of June 23 we tested the PDM at our Harris No. 1
mine located in Southern West Virginia. I was present for a portion of
the testing and wore one of the devices during my time underground. The
device exceeded my expectations and enabled us, in the short time it
was in use, to detect conditions affecting dust levels that might have
otherwise gone unnoticed. Of great importance, we were able to take
immediate remedial action to reduce the dust levels. Contrast this to
the current system where we collect samples, mail them to MSHA's
laboratory for analysis and obtain the sample results 2 to 3 weeks
later after we've mined through a problem area.
Mr. Chairman the PDM represents a technological breakthrough that
permits extended real-time assessment of respirable dust concentrations
that will enable real-time corrective actions to prevent overexposures.
At long last we have within our reach a tool that will provide
personal, real-time sampling results so that miners and operators can
take corrective actions when needed.
The path we've followed to get to this point has been long and
arduous. It began more than ten years ago when a decision was made to
explore the possibility of taking existing proprietary technology, the
Tapered Element Oscillating Microbalance (TEOM), and adapt it for use
in the underground environment. This decision gave rise to the
development of a cumbersome machine mounted device which proved that
the TEOM technology could work underground. It was then decided to
explore the possibility of miniaturizing the technology so that miners
could have a personal tool to provide them with real-time sampling
results. Regrettably, decisions made by the previous Administration's
Assistant Secretary delayed, by months if not years, our reaching the
important milestone that has been reached today.
We commend MSHA and NIOSH, the National Institute for Occupational
Safety and Health, for their continued support and commitment to
purchase 25 production prototypes following completion of this initial
round of testing. The 25 units will permit broader testing in different
applications to ensure the integrity, practicality and feasibility of
the units. This final step is an integral element of the validation
process and will enable the parties, labor, industry and government to
then consider a deployment strategy upon which new regulations can be
based.
Beyond the PDM we have shared with MSHA, on several occasions
dating back to 1996, our views on a wholesale revision of the existing
dust program. Our recommendations were contained in a series of letters
that provided an outline for a new respirable coal mine dust sampling
program that we believed then would enhance the protections afforded
miners against the potential health consequences where excessive dust
concentrations are encountered.
However, the potential that the PDM offers has moved us beyond our
thinking of 1996. If this potential proves to be feasible we see the
PDM being the cornerstone of a new respirable dust regulation that will
enable us to prevent overexposure to respirable dust on a real-time
rather than after the fact basis.
Mr. Chairman protecting miners from exposure to respirable coal
mine dust remains a complex and challenging issue. There is no one
simple solution. Mine design, geology and equipment are important
variables in designing a dust control program, and these are mine
specific. Thankfully we are, I believe, on the verge of having a tool
that holds significant promise to assist us in fulfilling our goal--
elimination of coal workers pneumoconiosis.
Thank you for this opportunity. I'd be happy to try to answer any
questions you might have.
Senator Specter. Thank you very much, Mr. Beerbower.
Mr. Lauriski, would you step back to the table so we can
have an analysis three ways on what we are doing here?
When the Federal statute, the Federal Mine Safety and
Health Act of 1977, as amended in 1995, provides that the
miners shall be exposed at or below 2.0 milligrams of
respirable dust per cubic meter of air, how do we move, Mr.
Lauriski to your testimony on up to 8 milligrams?
Mr. Lauriski. Senator, I never testified that we would go
up to 8 milligrams. In fact, this rule does not allow miners to
be exposed to 8 milligrams of dust, and I am going to point to
two things.
Senator Specter. But where does the 8 milligrams come in
then?
Mr. Lauriski. Well, Mr. Main, in his analysis of what this
rule says, believes that the protection factors that we have
assigned devices that can be used to protect miners would allow
the miners to be exposed to milligrams up to 8. That is not
true.
Senator Specter. What would the miners be exposed to?
Mr. Lauriski. They would be exposed, depending upon the
protection factor to a divisor of 4 into the actual milligrams
that were in the air. That would be their actual----
Senator Specter. How many milligrams?
Mr. Lauriski. They would divide the actual mine environment
by the protection factor that was afforded. It can range from a
protection factor of 2 up to a protection factor of 4. That is
based upon all the science that has been done on these devices.
Senator Specter. Well, how many milligrams of coal dust
would they then be exposed to?
Mr. Lauriski. It would depend on what the mine atmosphere
was. Let us assume that the mine atmosphere was 2 milligrams on
the outside of this device. Their actual exposure using these
protection factors, if you used a protection factor of 4, it
would be .5 milligrams per cubic meter of air.
Now, these devices that Mr. Main talks about that we have
incorporated into this rule were first incorporated into the
proposed rule of July of 2000, before I arrived here, Senator,
and they recognized the value that these devices have in
protecting miners' health. We brought that rule forward into
this proposed rule of 2003 because they have the ability to
protect miners. Many miners use these across the country today.
These devices do not substitute for engineering or
environmental controls. They are to be used only as a
supplement to those controls, and that is very clear in our
proposed rule.
I would also say that, one, I cannot override what the
statute says.
But two, I would direct you to our proposed rule where it
talks about, in section 7100, where it says: ``each operator
must continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to
which each miner in the active workings of each mine is exposed
at or below 2 milligrams per cubic meter of air.''
Senator, we have not advocated, nor do I advocate, the
allowance of exposing miners to any concentration above 2
milligrams, and we have not attempted to do that. What we have
attempted to do is to leave the hierarchy of controls in place
and provide miners with a supplement to protect their health
from the debilitating effects of black lung.
Senator Specter. Mr. Lauriski, precisely why was the new
rule suspended?
Mr. Lauriski. We stopped work on this new rule for two
reasons. One, we heard very clearly during the public process,
the public comment period, about the potential of these devices
here. This is the PDM. Hearing that comment and knowing that we
had some favorable results from the first round of testing, I
made the conscious decision that we should then suspend further
work on this rule, giving us the time and the opportunity to
work with NIOSH to see how this device can best be used in a
regulatory environment for miners.
Senator Specter. You say the first results were positive?
Mr. Lauriski. Yes, sir.
Senator Specter. Then why was it that you suspended the
rule?
Mr. Lauriski. We did not suspend the rule. We left the
rulemaking record open. We simply stopped work on the rule. We
extended the comment period indefinitely.
Senator Specter. The information I have is that on June
24th of this year, the Mine Safety and Health Administration
announced that it would suspend the proposed rules and keep the
record open until further notice. Is that incorrect?
Mr. Lauriski. No, that is correct. We suspended work on the
rule, but kept the record open.
Senator Specter. Well, why did you suspend the proposed
rules if the testing up to that point was satisfactory?
Mr. Lauriski. Well, Senator, we did not suspend the rule.
We suspended work. There are differences. As I understand the
Administrative Procedure Act----
Senator Specter. You suspended the proposed rule.
Mr. Lauriski. No. We suspended work on the rule and kept
the record open. You suspend a rule----
Senator Specter. I just read you my information and you
said it was accurate, and that is: ``The Mine Safety and Health
Administration announced it would suspend the proposed rules
and keep the record open until further notice.''
Mr. Lauriski. Senator, I am not sure where you got that. I
could read you exactly what we said in our release.
Senator Specter. Please do.
Mr. Lauriski. All right. What we said is that: ``all
activity to finalize the proposed rules will stop, i.e., is
suspended, the work, and the record will remain open.'' This
information conveyed the practical circumstance of what the
agency intended, not the specific legal action the agency would
take when publishing a Federal Register document. And the
Federal Register document that we provided keeps the rulemaking
record open indefinitely. That allows us the opportunity to
take the information we gather from the testing of the PDM's
and to use that information from that test and incorporate it
into the rulemaking record itself.
Senator Specter. Well, why did you take the action that you
did, whatever you characterize it as a suspension of the rules
or just about the same thing which you have just said? Why did
you take that action?
Mr. Lauriski. So that we would have the time to see how
these devices were going to function in the mine and if the
prototypes worked effectively, we could then commit some
resources, dollar resources, to the purchase of additional
units and then put those units in the mine--and we are doing
this in consultation with NIOSH--production units, and best
determine how these units can be used in a regulatory fashion.
Senator Specter. Mr. Main, do you think it is possible to
use that personal dust monitor with modifications?
Mr. Main. We have long supported the development of the
continuous dust monitors. As a matter of fact, the mine workers
and miners are on record back as early as the mid-1970's
calling for its development. We support it as a continuous dust
monitor that is in the mine every day, even as MSHA promised.
If I might, I would like to take a minute just to clear the
record.
Senator Specter. I would be glad to have you do that if you
deal with my question first.
Mr. Main. Sure.
Senator Specter. And that is, do you think that this
personal dust monitor can be modified or programmed to meet the
concerns that you have?
Mr. Main. Absolutely.
Senator Specter. It can be. Okay, now proceed with your
other point.
Mr. Main. Thank you. I think the debate about the increase
of the dust did not come from Joe Main, did not come from the
mine workers. It came from a series of questions asked of MSHA
during a preliminary meeting on the rule before we ever got
into the public hearings because this rule is so complicated
and so confusing, we could not, quite frankly, understand it
nor could miners. During those exchanges, we were told that
under this formula, the mine operator could make a request to
MSHA, which there is provisions in the rule to carry out what I
am talking about, to have the dust levels increased in their
mine when they would claim that they believed that they could
not control the dust with environmental controls, that there
was not any feasible controls to do that, and at which time the
agency would then review the approval request which would in
place of--and you can call it substitute or supplement. I do
not care what you call it. It is the same thing--instead of
using engineering controls, environmental controls, could use
respirators to allow those dust levels to rise.
I would just like to take a second, if I could, to read a
part of the public record. This was an exchange that took place
between myself and some MSHA officials during the Washington
hearing, which was a follow-up to try to clarify this issue
from what the agency had already told us.
Mr. Main, which is myself. Okay, in this mine that I talked
about, let's say that you have this factor of 4. You're adding
mine environment measurement the same way we do now, reading 8
milligrams.
Mr. Nichols, who was the head of the hearing. Let me deal
with that 8 milligrams. Did you tell Joe that mine operators
could go to 8 milligrams?
Mr. Thaxton, who was one of the framers of the regulations
at the hearing. He worked for MSHA. What we talked about, Joe,
is that there is no 8 milligrams actually specified in the
rule.
Mr. Main. That's right.
Mr. Thaxton. We said it's a protection factor that could be
assigned, theoretically allow somebody to go up to a maximum of
8 milligrams.
Mr. Main. When I asked you the specific question, Bob,
okay, how much dust--when you do that formula, that factor of
4, how much dust would you be actually measuring?
Mr. Thaxton. That's why I said----
Mr. Main. It could go up to what?
Mr. Thaxton. It could go up to a maximum of 8 milligrams.
As we went on through the testimony----
Senator Specter. Mr. Main, is that your concern, that it
could go up to 8 milligrams?
Mr. Main. Well, our concern basically is this is a starting
point. Congress was right when it said the maximum dust levels
should not exceed 2 milligrams. Congress was right when they
said you have got to control that through environmental
measures. You cannot use respirators as a replacement,
substitute, or whatever else you want to now call it, to
achieve that goal.
Our fear is what this rule does is allows operators to
basically substitute engineering controls with respirators and
increase dust levels.
Senator Specter. Is it your concern that if there were 8
milligrams, that the respirators would reduce the exposure to 2
milligrams and you object to the use of the respirators?
Mr. Main. We object to the use to deal with dust by
throwing respirators on miners and increasing the dust I think
is about the short message. And I would also point out that the
particular respirator--there is a wealth of information that
shows that this particular one, although it could provide some
benefit at low dose levels, is faulty and it has been found----
Senator Specter. So you think that this respirator will not
keep the inhalable dust to the 2 milligram level.
Mr. Main. Yes, I believe that that is the case.
Senator Specter. Mr. Lauriski, do you think that is a valid
concern?
Mr. Lauriski. No, I do not, Senator.
Senator Specter. Why not?
Mr. Lauriski. I think that all the tests that have been
conducted on these devices--they have been used in this country
since about 1980. There have been numerous studies and tests
done on these. There are actually protection factors assigned
by scientific institutions that in some instances in mines,
these devices can provide as high as 94 percent efficiency.
Senator Specter. Well, let us come back to the reason you
suspended the rule.
Mr. Lauriski. Okay.
Senator Specter. Why did you suspend the rule?
Mr. Lauriski. So that we would have the ability to test
these personal dust monitors that we all agree have some
extremely valuable benefit and give us time to see how these
devices can best be used in a regulatory scheme. That would
give us valuable information to understand how we should
proceed with this proposed rulemaking.
Senator Specter. Mr. Beerbower, what is your view on this?
Do you think that these respirators provide the protection to
keep the dust below the 2 milligrams required by law?
Mr. Beerbower. Senator, we have long encouraged our miners
to wear these devices. I do believe that they do provide a
protection factor for miners exposed at any level of dust. I
think one of the reasons that the questions have been raised
about it is because when we look at the PDM and the
capabilities that it has, it is completely different in the way
that mines would approach dust control. In essence, the rules
were written based on the old method of sampling. In other
words, we would take a sample at the face. We would wait 2 to 3
weeks to get the results back from the MSHA laboratory. Those
results would be posted on the mine board, but where we were
mining at the time that sample was taken is long gone, and we
did not have the ability to take action to stop those immediate
over-exposures. However, with the PDM, we will know exactly
what they are exposed to at any time during the shift and be
able to take actions to stop that over-exposure.
Senator Specter. Mr. Lauriski, there would be a resolution
of the issue if instead of suspending, you withdrew the rule.
What is the difference, as you see it, between those two
courses of action?
Mr. Lauriski. Well, withdrawing the rule, Senator, would
really take all of the work that has gone on since about 1995-
1996 in developing the proposed rules as they are today, first
starting with the Dust Advisory Committee back in the mid-
1990's, then the development of these proposed rules by the
previous administration, and then the work that we have done
since I have been here since 2001. We think that by withdrawing
those rules, that that would be a step backwards. We think
preserving the record is very important.
Perhaps more importantly than that, Senator, is that by
keeping these rules open, we can take the information that we
gain from the additional testing of these PDM's and we can
incorporate that information into the public comment record. It
is important that we do that and that we have a full
representation of what goes on. That includes a collaboration
with all of the parties who have the same interests and share
the same interest in the use of these devices as us.
The other concern that we have is that if you withdraw
these rules and you continue to work on the PDM, what happens
theoretically if these PDM's do not function. Then you have a
withdrawn rule and you start all over again. Now, the
development of these is going to take some time yet.
Senator Specter. Well, if the personal dust monitors do not
function, then they are unsatisfactory to keep the dust at a 2
milligram level.
Mr. Lauriski. Well, they only measure the dust, Senator.
They do not provide any protection factors. They measure the
exposure level that the miner sees. They do not provide that
protection.
Senator Specter. That is what the controversy is now on the
personal dust monitors, whether they ought to be used. Right?
Mr. Lauriski. No. I think we all agree. I think all of this
table agree that this is the device that holds a lot of
promise. I think the controversy comes with these devices that
are on my right.
Senator Specter. With the powered air purified respirators?
Mr. Lauriski. That is correct.
Senator Specter. Well, what is your view there, Mr. Main?
Mr. Main. Well, on the respirators, miners need respirators
to be used the way that Congress intended and that is when a
mine operator gets out of compliance and until they get their
mine back in compliance by the law and get the engineering
standards in place, which they are under violation in that time
frame, they have to have a quality respirator.
Senator Specter. But only when the mine is out of
compliance?
Mr. Main. Basically under the law, if they are in risky
dust areas, higher dust areas, they have to be provided a
respirator. We think that is the proper way and to keep the law
in place that requires the operator to put the engineering
controls in place to get there.
Now, with regard to the personal dust samplers, we believe
that it will revolutionize the way that we do the dust sampling
program in that it will let, as Dave Beerbower stated earlier,
miners wear these every day, every shift. It is a remarkable
device. I had it on. It gives you an instantaneous notice of
dust levels increasing, lets you make automatic changes in the
dust controls.
The problem here is that the rules that is on the table--
and there is a list of them further than what I have laid out
here today that is very problematic, that are contrary to the
Mine Act. They eliminate, for example, compliance sampling.
There is no compliance sampling for sections and outby areas
left in the standards under those proposals, and they would be
reduced, even with what the Government says they are going to
do, by around 90 percent.
Example. One shift to be sampled in the outby areas of a
coal mine a year and as little as three on an operational
section. That is just outrageous.
The problem we have here is we cannot get our attention
fully focused to craft this new rule because we cannot get the
old rule off the table, and miners are fearful that this
Government is going to move forward and keep those ill-advised,
what we consider illegal provisions and put those in a final
rule. We believe there has to be a new proposal any way that
you do this. This rule is so bad, it needs to be taken off the
table. But if we are going to do the kind of things we are
talking about, it takes rule changes to do that anyway. And our
fear is why is MSHA to reluctant to pull this thing off the
table unless they plan to use those pieces.
Senator Specter. Well, why can you not do the things, as
you put it, the things you are talking about, in the interim
when the rule is suspended until a revised rule is put into
effect?
Mr. Main. Well, I think the simple problem here is that the
rule was wrongly crafted and the intent I think of the
rulemaking process is to give the public a view of the rule
that they intend to put in final stages. What we are talking
about would accomplish that, to give us a look at a proposal
and respond to that proposal that mirrors what the final rule
would be. The problem is what is on the table is they contain
so many adverse pieces that are sitting there, poised to be
tucked into any final rule, and we would all be left to
challenge it only through the courts.
Senator Specter. Mr. Beerbower, would you care to comment
about the disagreements here between Mr. Lauriski and Mr. Main?
Mr. Beerbower. Yes, sir. I think the rules proposed in
March are unacceptable to the industry also. We believe that
they will require major revision. The role of the PDM was not
anticipated to be what we now believe it can be, and therefore
that section is going to have to receive a major rewrite. I am
not an expert on the rulemaking process and we leave that up to
the agency to determine whether they can work those changes
into the current record or whether they need to repropose, but
there are major changes that need to be made.
Senator Specter. Do you think it makes any difference
whether the rule is withdrawn or whether it is suspended and
then reinstated with changes?
Mr. Beerbower. Our concern is the time frame that we are
talking about. If suspension would precipitate a quicker rule
that we could work with on the PDM, then we are in favor of
that. If reproposing would slow the process down, that would be
a detriment to the miners.
Senator Specter. Well, you are saying if it takes longer,
you would not like it, but would it take longer?
Mr. Beerbower. I do not know. I really do not know the
answer to that question.
Senator Specter. That is what I am trying to find out. If
you do not know the answer, who does?
Mr. Lauriski. I can answer that, Senator.
Senator Specter. Go ahead.
Mr. Lauriski. It would take us longer. If we withdraw this
rule, we then lose all of the information that we have
gathered, that this agency has gathered for the past 8, 9, 10
years and we would----
Senator Specter. Well, Mr. Lauriski, why is that? You have
gathered that information over 8, 9, 10 years, as you say, and
then you put a rule into effect in the year 2000. So all the
information you had gathered prior to the time you put the rule
into effect in the year 2000 you could use.
Mr. Lauriski. The rule is not effective. It is simply
proposed. And we have the record that has been established over
these many years that sits there that we can preserve.
Senator Specter. But there is nothing to stop you from
reintroducing that record, incorporating it by reference,
putting it back into a proceeding.
Mr. Lauriski. You can, but then you go through the process
of having to start all of the public processes over again.
The other thing, Senator, that I think----
Senator Specter. What public processes?
Mr. Lauriski. Through the Administrative Procedure Act, the
rulemaking act.
But if I might----
Senator Specter. Well, how long does that take?
Mr. Lauriski. Well, to develop a rule? If I were to sit
here and be optimistic, 18 to 24 months to develop a rule from
the beginning to the end.
Now, we have a rulemaking record developed. We have the
comments that are going to be preserved, but I think what is
important here is that by keeping this record open, we take the
information that we are going to learn from the testing of
these devices right here and we can fold that into the
rulemaking record itself. That will give us the ability very
quickly to make decisions on how best to use these devices in a
regulatory scheme. Certainly if that does require a major
revision to the current proposed rule, that part of the
proposed rule would have to be reproposed. There is no question
about that.
Mr. Main. Mr. Chairman, if I may. I think I may have a
solution to the problem.
Senator Specter. Go ahead, Mr. Main.
Mr. Main. I thank you, sir.
In 2003, what the agency did was basically withdrew the
2000 rule and reproposed a new rule, and we are asking for
nothing different than that. We do not care what you call it.
Okay? And if we could get a guarantee from the Secretary of
Labor's folks from MSHA that they will actually repropose a
rule that lets us look at what the actual rule will be before
we make the final decision, I think that would solve the
problem.
Senator Specter. Would you do that, Mr. Lauriski?
Mr. Lauriski. It is going to depend on the comments that we
receive, and if those comments are valid and it changes the
proposal substantially, we have a legal obligation to repropose
those rules. That is correct.
Senator Specter. What Mr. Main has just asked you is
assurances that they would have an opportunity to have input on
what you have proposed. Is that right, Mr. Main?
Mr. Main. To have a review of the proposed rule once it
comes out through its normal process.
Senator Specter. That you would have an opportunity to
comment and have input, make suggestions before it was
finalized?
Mr. Main. Similar to the process we just used. The legal
process in which they would actually just issue a reproposal
like they just did in March and----
Senator Specter. Would you agree to that, Mr. Lauriski?
Mr. Lauriski. Senator, if the information tells us that we
have a better way to approach these rules and we modify the
proposed rules in any way that substantially changes what we
have proposed, then the answer is yes. Then we have to
repropose those rules and then Mr. Main and all the miners and
everybody else has an opportunity to comment on those before
they become final.
Senator Specter. All right. I think we may be coming to
closure here. Let us see if we can work that out. I do not
think we are too far apart.
Mr. Main. One final comment.
Senator Specter. We are pretty close, Mr. Main. You want to
say something more?
Mr. Main. Just one thing. If the rule is not reproposed, we
would urge this committee to act to withdraw----
Senator Specter. You better finish this before Senator
Harkin gets here or starts to participate. Who knows what will
happen then.
They do not have too many coal mines in Iowa, do they,
Senator Harkin? I withdraw the question. Go ahead, Mr. Main.
Senator Harkin. Just a second.
I want the record to show that at one time Iowa was one of
the major coal-producing States in this Nation, more than
Pennsylvania. As a matter of fact----
Senator Specter. You may want the record to show that, but
are those facts?
Senator Harkin. It is factual. As a matter of fact, I win a
lot of free beers at bars by asking people where the great coal
mine leader, John L. Lewis, came from. Do you know, Mr. Main?
Mr. Main. Iowa.
Senator Harkin. Thank you very much. You win.
Most people think he came from West Virginia or
Pennsylvania.
Senator Specter. That is certainly relevant to what State
produces all the coal.
Mr. Main, you have the final word.
Mr. Main. Yes. I appreciate that, Senator. I would say
this. What miners in this country want is assurances that they
are going to see another proposal. Short of that, if the
Government does not provide that, we would urge this body to
act to withdraw, in any way they can, the rule that is on the
table and direct the agency, in any way they can, to issue a
rule that meets the needs of the Nation's miners. Thank you.
Senator Specter. Well, I think we are really not too far
apart, and I am hopeful we can move it together.
Senator Byrd could not be here, and he has asked me to put
these questions to you for response in the record. We will be
asking more questions for the record.
I want to go back to the Quecreek hearings which we held
last October just for a moment, Mr. Lauriski, to ask you when
you are going to release your investigative report on the
incident, since it has been more than a year since the mine
disaster at Quecreek and about 10 months since we had the
hearings last October.
Mr. Lauriski. Senator, I am not sure if you know this, but
we were asked by the U.S. attorney who you asked to investigate
the matters at Quecreek to withhold the release of our report
while they concluded their work. They have now given us the
green light.
Senator Specter. When did they give you the green light?
Mr. Lauriski. About 2 weeks ago.
Senator Specter. When will we have your report?
Mr. Lauriski. It is almost on your doorstep. We are making
a very small, minor modification to that report, and we would
hope--it is imminent.
Senator Specter. Within the next week?
Mr. Lauriski. I would hope within the next 2 weeks.
Senator Specter. Thank you very much.
Senator Harkin, do you care to ask anything here?
Senator Harkin. No.
Senator Specter. Well, I am hopeful that we can bring the
parties together here. There was action taken in the House to
prohibit any funds from being expended by the Department of
Labor on this subject and it was a 2-vote margin, 212 to 210,
and I thought our subcommittee ought to take a look at it. We
are optimistic about having the Labor-HHS Appropriations bill
on the floor starting on September 2, the day we get back, and
we wanted to be more knowledgeable on the subject. After
hearing the testimony, I am not sure we have accomplished our
mission, but we do not know any less than we did when we
started. It is fairly technical, but I repeat, I hope we can
work it out so that there is agreement between the parties.
ADDITIONAL COMMITTEE QUESTIONS
There will be some additional questions which will be
submitted for your response in the record.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Robert C. Byrd
MSHA'S PROPOSED RESPIRABLE DUST RULE
Question. Mr. Lauriski, it has been 32 days since I wrote to you
about MSHA's proposed respirable dust rule, and I have yet to receive a
response. That leaves me with a poor impression about how MSHA views
its role in communicating with the miners and their representatives in
the Congress.
I urge you to withdraw this seriously flawed rule. It is only one
in a series of proposals by this Administration that have eroded the
trust of miners in the one agency of the federal government charged
with protecting their health and safety.
Last Saturday, a 27-year-old worker was electrocuted in a Raleigh
County coal mine, the sixth West Virginia coal miner to die on the job
so far this year. While MSHA touts its safety record, it is ignoring a
series of accidents and near-fatalities that are occurring in Alabama,
Kentucky, Illinois, and Pennsylvania. This year's national fatality
rate is already well above where it was at this time last year.
And, yet, astonishingly, MSHA supports a $5 million cut in its own
coal enforcement budget, as proposed by the President, when it already
lacks the resources it needs to properly inspect our nation's mines.
And now MSHA refuses to withdraw its coal dust rule which has
undermined its credibility with miners even further.
Mr. Lauriski, what does this Administration think it is gaining by
promoting policies that risk the lives of America's miners?
Answer. Please accept my apology for the delay in responding to
your June 25, 2003 letter concerning the respirable dust proposed
rules.\1\
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\1\ MSHA responded to your June 25 letter on August 13, 2003.
---------------------------------------------------------------------------
During the six public hearings we held on the proposed respirable
dust rules in May of this year, MSHA learned of the promise shown in
the initial testing by NIOSH of the prototype Personal Dust Monitor
(PDM) and its possible use to assist in the elimination of black lung
disease. A PDM is designed to produce a real-time read-out of dust
exposure. As a result, on June 24, I announced MSHA would stop all work
on finalizing the proposed rules. We have extended the comment period
on the proposals indefinitely so that the results of the current in-
mine testing of the experimental prototype PDMs will become a part of
the public record.
MSHA is working with the National Institute for Occupational Safety
and Health (NIOSH) to complete the in-mine tests of the prototype PDMs
in mines located in Pennsylvania, West Virginia, Alabama and Utah. If
these initial tests are successful, MSHA and NIOSH will purchase
production prototype models of the unit for further testing. As we
proceed with the testing, we believe it is essential to leave the
current rulemaking record intact and that we add to it the results of
the PDM testing so we can determine how the PDMs might fit into a
regulatory scheme.\2\
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\2\ Subsequent to the hearing, MSHA convened a meeting of
stakeholders in order to provide a forum for obtaining and exchanging
information about the direction of future research on the PDM. At the
August 5, 2003 meeting, staff from NIOSH and the manufacturer of the
device reported that the device performed successfully during the
initial in-mine tests. Consequently, MSHA and NIOSH each committed
$150,000 to purchase production prototype PDMs. These devices are
scheduled for delivery in May 2004.
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As we work to improve miners' health, we are also emphasizing
miners' safety. Any illness or injury is one too many. A great number
of MSHA employees have worked in mines for many years and feel a deep
sense of loss when accidents occur that cause injury, illness or death.
As you know, our staff conducts detailed formal investigations of each
fatal accident in an effort to prevent a recurrence. They study the
scene of the accident, review records at the mine, conduct various
tests, as needed, and interview people who may be able to help put
together a complete picture of how the accident occurred. We then
prepare a report of our findings and share it with the mining industry
across the country to prevent similar accidents in the future.
Accidents, whether fatal or non-fatal, present learning
opportunities. MSHA defines an accident to include not only incidents
that produce injuries, illnesses or deaths, but other unplanned
incidents not resulting in personal harm, such as mine fires,
entrapments, inundations, ignitions, and roof falls. Mine operators
must report these incidents immediately and MSHA investigates many of
them to learn how and why the event occurred. MSHA may use the lessons
learned to develop hazard alerts or other educational materials for
distribution and discussion at mines to prevent similar future
accidents.
MSHA certainly is not ignoring accidents. While the number of
fatalities at coal mines is higher than it was last year at this time,
it remains lower than at this time in 1999. We have increased our
efforts to reduce serious accidents and to raise the mining community's
awareness of recent accident trends and related potential hazards. MSHA
is:
--Finalizing an Emergency Temporary Standard (ETS) to protect
underground coal miners from grave dangers such as mine fires,
explosions, and gas or water inundation emergencies. The recent
deaths of 14 miners at two underground coal mines demonstrate
the need for this standard, and it is only the second ETS
issued under the Mine Act. The Emergency Evacuation Standard
assures that proper training and mine emergency evacuation
procedures are in place.
--Taking action to alert the mining industry of the inundation hazard
such as that which caused the entrapment of nine miners at the
Quecreek Mine. After fully investigating the cause of that
accident, MSHA reviewed plans of underground mines operating
near abandoned works, and worked with mine operators to provide
additional protective measures where needed. MSHA is working to
improve the availability and accuracy of mine maps with
improved technology.
--Operating a Tri-State Initiative group that focuses on the
geographic area which historically has accounted for a large
number of mining fatalities, i.e., Virginia, West Virginia and
Kentucky.
--Providing special emphasis on assistance to small operations that
may not have the technical and safety resources of larger
operations through a new Office of Small Mines Safety and
Health Compliance Assistance.
--Conducting special emphasis initiatives in which all available
personnel contact miners and mine operators to reduce accidents
and injuries.
--Issuing hazard alerts and other materials designed to focus the
attention of miners and operators on current trends and
occurrences through expanded distribution channels.
--Investigating and providing information on ``near misses'' and how
to prevent them.
--Expanding the safety information and materials available on the
website. These materials can be used by operators and miners in
safety meetings and training sessions to improve the safety
environment at the mine.
--Continuing to conduct inspections mandated by the Mine Safety and
Health Act of 1977. In 2002, our rate of completion of
mandatory inspections was at the highest level in several
years.
In addition, MSHA has updated and reissued policies and procedures
that were identified internally as needing improvement. It is to MSHA's
credit that accident follow-up activities result in local or national
improvements as they may be appropriate.
Most recently, MSHA has initiated a nationwide outreach program
designed to raise the awareness of accident causation and prevention
among the miners, and to encourage all employees of mining companies
and contractors to identify hazards and use safe job procedures. MSHA
is using all available staff, including education and training
specialists and technical experts, as well as enforcement personnel, to
conduct these contacts at our nation's coal mines. The major two-week
initiative began on Monday, July 28, 2003, and will include on-site
visits to every surface and underground mine in the nation.
MSHA will not reduce its enforcement efforts in fiscal year 2004.
The President's budget request does not propose a decrease in inspector
positions below the fiscal year 2003 enacted level. While the fiscal
year 2004 budget request for the Coal activity is $5 million less than
the fiscal year 2003 enacted level, this decrease is the result of the
transfer of 19 information technology FTE to a newly created budget
activity that will consolidate MSHA's information technology resources.
In previous budgets, the cross-cutting services provided by the
Directorate of Program Evaluation and Information Resources were funded
by drawing resources from each of the budget activities. There is no
effect on the Coal program enforcement or any of its activities.
NATIONAL MINE HEALTH AND SAFETY ACADEMY
Question. Mr. Lauriski, I wrote a letter to you last month, to
which I still have not received a response, about Jack Spadaro,
Superintendent of the National Mine Health and Safety Academy in
Beckley, West Virginia, who was placed on administrative leave by the
Mine Safety and Health Administration (MSHA) last Spring.
I have no personal knowledge of the circumstances of his
suspension. But, The Courier-Journal of Louisville, Kentucky, and other
publications have speculated that Mr. Spadaro's suspension may have
been retaliatory. Mr. Spadaro has been a regular critic of MSHA. He has
earned a reputation as a whistle blower.
The Washington Post this week reported that hundreds of whistle
blower complaints about waste, fraud, and abuse in this Administration
are going unexamined, with the backlog of cases more than doubling in
the past 18 months.
Mr. Lauriski, this Administration is swiftly developing a bad
reputation for its treatment of federal employees who tell the truth
about questionable practices in their agencies. The treatment of Mr.
Spadaro's case has only contributed to the growing sense among many
miners and MSHA employees that the agency is interested in protecting
something other than the health and safety of miners. And the failure
to respond to the letters of Members of Congress only makes matters
worse.
Can you explain to this Subcommittee exactly what your priorities
are at MSHA because, frankly, it doesn't seem to be the health and
safety of miners.
Answer. I responded to your letter on July 21. As I stated in the
letter, Mr. Spadaro was placed on administrative leave with pay on June
4, 2003. Because this is a personnel matter, it would be inappropriate
for me to provide any additional information about Mr. Spadaro at this
time.
My priority is the health and safety of miners. My goal is to see
the mining industry in this country achieve new levels in health
protection for miners just as it has broken all records in safety.
After several years of relative stagnation, the number of mine
fatalities dropped to a new record-low of 72 in 2001 and then to 67
last year. This amounts to a 21 percent decrease in fatalities from the
period 2000 to 2002 at all mines. Injuries also are on the decline and
for the same period, total injuries at all mines have decreased 18
percent. Additionally, total inspections, investigations and site
visits increased from 61,094 in 2000 to 87,957 in 2002.
I have put into place a system that promotes safety as a value.
After arriving at MSHA, I developed a management plan to guide the
Agency in a new proactive direction that makes sure we get maximum
benefit from our resources. As we have implemented the plan, we have
set specific goals to reduce injuries and illnesses and have
experienced the results I just cited. We have enhanced training and
education for both our own staff and for miners and mine operators and
compliance assistance is now a part of everything we do. It is through
programs such as these that we will see fewer injuries and illnesses.
I am committed to improving the health and safety of our nation's
miners. When I accepted this position, I pledged to uphold the law
protecting miners. I have done so and I will continue to do so.
CONCLUSION OF HEARING
Senator Specter. Thank you all very much for being here.
That concludes our hearing.
[Whereupon, at 3:02 p.m., Thursday, July 31, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]