[Senate Hearing 109-433]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-433

                  THE STATE OF MINE SAFETY AND HEALTH

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

             EXAMINING THE STATE OF MINE SAFETY AND HEALTH

                               __________

                             MARCH 2, 2006

                               __________

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                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                   MICHAEL B. ENZI, Wyoming, Chairman
JUDD GREGG, New Hampshire            EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee                CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee           TOM HARKIN, Iowa
RICHARD BURR, North Carolina         BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia              JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio                    JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada                  PATTY MURRAY, Washington
ORRIN G. HATCH, Utah                 JACK REED, Rhode Island
JEFF SESSIONS, Alabama               HILLARY RODHAM CLINTON, New York
PAT ROBERTS, Kansas
               Katherine Brunett McGuire, Staff Director
      J. Michael Myers, Minority Staff Director and Chief Counsel

















                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        THURSDAY, MARCH 2, 2006

                                                                   Page
Enzi, Hon. Michael B., Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  opening statement..............................................     4
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of 
  West Virginia, opening statement...............................     5
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York, opening statement....................................     6
Dye, David, acting assistant director, Mine Safety and Health 
  Administration; Ray McKinney, Administrator, Coal Mine Safety 
  and Health, MSHA; Dr. John Howard, Director, National Institute 
  of Occupational Safety and Health; and Dr. Jeffery Kohler, 
  associate director for Mining and Construction, NIOSH..........     7
    Prepared statements of:
        Mr. Dye..................................................     8
        Dr. Howard...............................................    15
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, opening statement...............................    19
Byrd, Hon. Robert C., a U.S. Senator from the State of West 
  Virginia, opening statement....................................    24
Peelish, Mike, senior vice president, Safety & Human Resources, 
  Foundation Coal Corporation; Michael E. Neason, American 
  Society of Safety Engineers, safety director at Hanson 
  Aggregates; Tom Novak, Ph.D., P.E., C.T. Holland Professor, 
  head of Department of Mining and Minerals Engineering, Virginia 
  Tech; and Cecil Roberts, president, United Mine Workers of 
  America........................................................    38
    Prepared statements of:
        Mr. Neason...............................................    41
        Mr. Roberts..............................................    47
        Mr. Peelish..............................................    56

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Article from the New York Times entitled ``U.S. Is Reducing 
      Safety Penalties for Mine Flaws,''.........................    30
    Response to questions of Senator Enzi by:
        Mr. Dye..................................................    76
        Mr. Roberts..............................................   101
        Mr. Novak................................................   102
        Mr. Neason...............................................   107
        Mr. Peelish..............................................   110
        Dr. Howard...............................................   114
    Response to questions of Senator Kennedy by:
        Mr. Dye..................................................    80
        Mr. Novak................................................   104
        Mr. Neason...............................................   109
        Mr. Peelish..............................................   112
        Dr. Howard...............................................   115
    Response to questions of Senator Hatch by:
        Mr. Dye..................................................    96
        Dr. Howard...............................................   119
    Response to questions of Senator Byrd by:
        Mr. Dye..................................................    98
        Mr. Roberts..............................................   102
        Dr. Howard...............................................   119



























 
                  THE STATE OF MINE SAFETY AND HEALTH

                              ----------                              


                        THURSDAY, MARCH 2, 2006

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Mike Enzi, 
chairman of the committee, presiding.
    Present: Senators Enzi, Isakson, Kennedy, Bingaman, Reed, 
and Clinton.
    Also present: Senators Byrd and Rockefeller.

                   Opening Statement of Senator Enzi

    The Chairman. I call to order this HELP Committee Oversight 
hearing on mine safety.
    Good morning and welcome to all of today's participants, 
and also we have so many people that are here to view this 
hearing that we have some overflow in the other room here. For 
what it is worth, it is being web-cam transmitted as well. That 
won't help anybody here that is a little bit crowded, but we 
know that there is a lot of interest in this and have been 
working on it very diligently with Senators Rockefeller and 
Byrd, and I understand that we do have family members of mine 
workers from West Virginia and from Alabama with us here today. 
They have, of course, been touched by the mining tragedies, and 
we welcome them to our hearing. In addition, I understand that 
we have mine workers from West Virginia and Pennsylvania and a 
number of the neighboring States. Included in them are some 
mine rescue teams that participated in the recent mine 
tragedies, and we welcome all of you to the hearing today.
    The recent tragic accidents at the Sago and Alma Mines in 
West Virginia have served to focus public attention on the 
issue on mine safety and give some legislation legs. 
Unfortunately, with so many issues on the national agenda, the 
public's focus tends to fade with time. However, the focus on 
this issue for those of us here today will not be allowed to 
fade.
    Mining and coal mining in particular is vital to our 
national and local economies and our national energy security. 
No aspect of mining is more important than protecting the 
health and safety of those whose hard work fuels the industry.
    Coming from Wyoming, which leads the Nation in the 
production of coal and where mining is a way of life, I am 
acutely aware of these issues. As the chairman of this 
committee, I am also uniquely aware of the responsibilities we 
bear in ensuring and advancing the cause of workplace safety. I 
can assure all of you that the focus of this committee will be 
on these vital issues and that it will not fade.
    We are ever so glad that Senator Rockefeller has joined us. 
He led a group of us down to West Virginia to meet with the 
families of the Sago miners who lost their lives in the tragic 
accident there, and with his leadership, we got some briefings 
before we went down from a number of mine safety and United 
Mine Workers people. It was extremely helpful in understanding 
what we saw and heard when we were down there.
    It was an intensively personal and emotional experience. 
Each of us who traveled to West Virginia in our own way 
promised those families that the loss of their loved ones would 
not be the end, but would be the beginning of the work that has 
to be done to address mine safety. I also want to sincerely 
express appreciation to Senator Isakson for all of the work 
that he has done since our trip. He, of course, was on the 
trip. He is the subcommittee chairman and has dedicated a lot 
of time and had hearings that will bear on this and has pursued 
it relentlessly, and I appreciate his efforts.
    Our commitment to improving mine safety has to be built on 
a realistic assessment of the current State of mine safety. 
Both the injury and fatality rates in mining in general and 
coal mining in particular have shown a steady downward trend. 
Last year, the total number of mine fatalities and the injury 
rate in the industry were the lowest on record. We also need to 
note that while the staff levels of MSHA have trended downward 
in recent years, that the number of mines in operation and the 
number of miners employed has witnessed a parallel trend. The 
amount of time MSHA personnel actually spend onsite inspecting 
mines has remained steady. Indeed, as contrasted with a decade 
ago, this critical onsite time has increased significantly.
    Overall, we have made strides in promoting mine safety; 
however, we can and must do better. Every miner deserves to 
return home safely at the end of the day. Even one unavoidable 
accident is too many, and we must act to reduce the safety risk 
for miners everywhere. In doing so, we must seek solutions that 
will work in the real world. The employees that work the mines 
and the operators that own them, the regulators that enforce 
the rules, and all of us that benefit from the collective 
labors have every right to expect that our actions will be 
grounded in fact and responsible judgment.
    The dialogue regarding mine safety that has developed in 
recent weeks has brought much to light and suggested both the 
pathway and promise of appropriate action. For example, the 
dialogue assisted in no small part by the recent roundtable 
held by the Employment and Workplace Safety Subcommittee 
chaired by Senator Isakson. Ranking Member Murray played a 
great role in it as well. This has taught all of us a great 
deal about the reality, promise, and current limitations of 
technology as tools for enhancing safety of miners. Beyond 
learning more about the technical specifications of individual 
pieces of equipment, we have learned valuable information about 
the appropriate approach to mine safety regulation.
    We must harness the power of technology to improve mine 
safety; however, the mining environment is not always conducive 
to the ready application of certain technologies. More 
importantly, that environment varies considerably from mine to 
mine. Thus, for example, some forms of communication technology 
that work well on the surface work hardly at all below ground. 
While others work in some mining settings, they don't work in 
others. We have also seen that a one-size-fits-all approach to 
workplace safety too often creates the unintended consequence 
of stifling innovation and delaying the implementation of 
better technology.
    Just as the perfect should never be the enemy of the good, 
the mandated should never be the enemy of innovation. All of 
this has made it clear that there are inherent limitations in 
attempting to proscribe general mandates for all mines and that 
a more individualized and risk-based approach to regulation may 
yield far better results. This means using available 
technologies to locate miners and send them communications that 
actually work in that particular mine. It also means building 
upon the current technological base and implementing these new 
technologies to continuously improve mine safety.
    There are challenges to the implementation of new and 
emerging mine safety technology that we can address by 
legislative action. We need to coordinate governmental research 
efforts that may have application in the mining environment. We 
need to enhance dedicated mine safety research efforts through 
a combination of increased funding and structural 
reorganization of the Agency tasked with that research. We need 
to speed the approval and certification process for new 
technologies by harnessing private sector resources, and we 
must overcome the problems associated with an extremely limited 
potential market by devising creative ways to stimulate private 
sector research and development in mine safety technology.
    Miners deserve the best safety equipment and technology. We 
should take all steps necessary to enhance its development and 
speed its implementation. It has become clear that the mining 
industry, like industries everywhere, is experiencing an aging 
of its workforce. In an industry in which experience is so 
critical in workplace safety, this demographic has far-reaching 
consequences. We face the loss to retirement not only of the 
miners, but of MSHA inspection personnel and mine rescue team 
members, all of whom are drawn from the ranks of miners. We 
must act to ensure that not only an adequate supply of well-
trained mining personnel, but rescue and regulatory personnel 
are there as well.
    While our goal is to avoid accidents in the first place, we 
realize that despite everyone's best efforts, there will be 
accidents in the future. Therefore, we must draw upon the 
experience of these recent tragedies to find better ways to 
respond to mining accidents so that no other family is left 
without a father, a brother, or a son.
    The best way we can honor the memory of those who have been 
lost is by protecting the safety of those that remain. We do 
this best by developing laws and regulations that enhance 
practical and innovative solutions, rather than simply enacting 
rigid rules, by developing and ensuring new technology, 
encouraging rather than discouraging its use, and by seeking 
practical approaches to mine safety that yield real-world 
results.
    The process that leads to these ends is not a simple one. 
We have already completed many of the steps along the way, and 
with today's hearing, we will complete another. As we continue 
down this road, our commitment to the miners who lost their 
lives in West Virginia this year, to the families they left 
behind, and to the miners everywhere continues as well.
    As chairman of the committee, I will work with my committee 
members as well as other interested Senators and stakeholders 
to move legislation that will move mine safety into the 21st 
century.
    I will now turn to Senator Isakson, the subcommittee 
chairman, for any comments that he might want to make and then 
to Senator Rockefeller for his leadership.

                  Opening Statement of Senator Isakson

    Senator Isakson. Well, thank you, Mr. Chairman. I will 
associate myself with all the well-thought-out remarks that you 
just made, and I want to thank Senator Rockefeller for his 
guidance and leadership when we went to West Virginia to allow 
us to see firsthand the immediate effects of that terrible 
tragedy.
    On that trip with Senator Rockefeller, Senator Enzi, and 
Senator Kennedy, as the press knows, we visited for over 2 
hours privately with the families and loved ones of the miners 
that were killed. As I left that meeting, I was handed by the 
daughter of Junior Hamner his last picture that was taken the 
day after Christmas 2005 before he died a week later in that 
mine tragedy. I promised her I would keep it as a constant 
reminder to us of our challenge which is ahead, and that is to 
help break through technologically and make what is hoped for a 
reality and make it a reality as quick as possible.
    We learned with regard to the Sago tragedy that had two 
things existed, lives could have been saved, that is two-way 
communications that are reliable and foolproof and, secondary, 
specific locators were reliable and foolproof. We had human 
intelligence, being the second team that was in the mine when 
the explosion took place. They knew where the good air was, and 
the miners that were trapped could have gotten to it, but the 
inability to communicate made it impossible and the inability 
to locate made it impossible.
    We learned in the hearing that we sponsored 2 weeks ago 
where we had experts from around the world that there are 
break-throughs. We learned that there is digital paging 
technology that goes one way, but not both ways. We learned 
there is location technology that can locate you generally, but 
not specifically. What we have learned in this country since 
John Kennedy declared that we go to the moon by the end of the 
decade and we did it is that with the right capital investment 
and the right focus and the right attitude, we can accomplish 
technologically wonderful things. It is my hope that in this 
committee, and to the extent our subcommittee has that 
responsibility, these hearings and the work we do can be a 
catalyst for the development of those things that do not exist 
to make mines safer, to make miners safer, and to make sure 
that Junior Hamner and those that have died in the past did not 
die in vane, but, in fact, from their sacrifice we learned what 
we could do better.
    So I thank you, Mr. Chairman, for the time. I look forward 
to working with you and Senator Rockefeller and others on this 
as we work toward solutions on the mine safety problem.
    The Chairman. Thank you and thank you for all your efforts 
and leadership on this.
    I will now turn to Senator Rockefeller who has been working 
with us to draft some legislation, and I appreciate that.
    Senator Rockefeller.

                Opening Statement of Senator Rockefeller

    Senator Rockefeller. Thank you, Chairman Enzi, and I will 
be brief because I am not a member of the committee. I am only 
here by virtue of your courtesy.
    I want to say very clearly that, as the family members here 
know, I was with you and Senator Isakson in the two-plus hour 
family meeting that we had. Then we talked with miners and we 
talked with MSHA and we talked with lots of different folks 
through the day. I was sitting close to Chairman Enzi and 
across from where I could see Senator Isakson very well, and it 
was very clear to me they were both stunned and moved.
    Mike Enzi comes from a coal-mining State. I am sorry to say 
that it produces more coal than West Virginia, not as good, of 
course, but more coal. He does have a couple of underground 
mines, but he said to me, ``I want to come back to West 
Virginia and go down an underground mine because I want to 
understand exactly what it is that we are talking about here.''
    Senator Isakson was also clearly moved and actually made 
the last statement, which was a powerful, emotional statement 
of commitment. You judge people by what they do. I know that, 
but you also judge them by what they say and what they feel. 
What they felt to me was very strong and very compelling and I 
think will guide all of us as we work our way through this 
legislation.
    Coal mining is just such a history of the West Virginia 
psyche. There is so much that has gone wrong. There is a lot 
that has gone right. We focus on the wrong because it is more 
important to focus on what doesn't go right than what does go 
right because you always have to be in the mode of improving 
things.
    I don't believe, Mr. Chairman, that there has been a 
hearing on mine safety since 2001. So this is the first one, I 
believe, since 2001. I may be wrong. If I am, don't tell me, 
please, right now.
    It is just indemic of what happens when there has been a 
little bit of fall-off in major tragedies. That doesn't mean 
they aren't major tragedies because an individual miner or two 
miners or three miners are killed in a accident. Those are just 
as major and we can't let up on any of those, but I am just 
very happy about the fact that in the Finance Committee we have 
already passed some legislation.
    This is more complex legislation and needs to be thought 
about carefully, and I am just very grateful to you, Mr. 
Chairman, to let me sit with both of you and Senator Clinton as 
we discuss what we have to do. Thank you, sir.
    The Chairman. Thank you.
    We are going beyond tradition here, but, Senator Clinton, 
do you have any opening comments you would like to make?

                  Opening Statement of Senator Clinton

    Senator Clinton. Just to thank you, Mr. Chairman and also 
Senator Isakson and Senator Murray, for the very informative 
roundtable that you held and, of course, Senator Rockefeller 
who has been such a great champion for West Virginia and West 
Virginians for so many years.
    We are here because this is an absolute necessity. We lost 
in the 12-month period between February of last year and 
February 17th of this year 43 coal miners, and we know from the 
roundtable that was held, and as Chairman Enzi described in his 
opening statement, there had been advances in technology. There 
are new ways of looking at mine safety that we can learn from 
and maybe borrow from other countries that have been facing 
these issues themselves.
    This is going to be a very important effort, and I know we 
have with us today coal miners from Alabama as well as West 
Virginia, from Kentucky and Pennsylvania, and I think Ohio, 
Illinois, and Virginia, and we have some of the rescue team 
members from the Sago and Alma Mines. Most importantly, we have 
some of the family members of those who died. We have widows, 
brothers and sisters, children, and others who lost their loved 
ones, and I think everyone on this committee shares the 
commitment that has been expressed that we will do whatever we 
can to try to prevent these tragedies in the future.
    There is no perfection on this Earth, we know that, but we 
can do better and we will do better in memory of the many, many 
coal miners who have given their lives over the decades so that 
our country can turn on lights and get energy, make the economy 
run, and I think it is an obligation and commitment that we all 
share.
    So, Mr. Chairman, I thank you for your usual seriousness of 
purpose in addressing this important issue.
    The Chairman. Thank you.
    Today we have with us our panel of representatives. They 
are from MSHA, the Federal Mine Safety and Health 
Administration. MSHA is charged with the enforcement of our 
Federal mine safety and health laws.
    Joining us today from MSHA are David Dye, the Acting 
Assistant Secretary for Mine Safety and Health, and Ray 
McKinney, the Administrator for Coal Mine Safety and Health. My 
understanding is that Mr. Dye will deliver MSHA's initial 
statement, but that both he and Mr. McKinney will be available 
to answer the members' questions.
    Also with us today are representatives from NIOSH, the 
National Institute of Occupational Safety and Health. NIOSH is 
the main Federal Agency responsible for conducting research and 
making recommendations in the area of occupational safety and 
health. With us today from NIOSH are Dr. John Howard, the 
Director of NIOSH, and Dr. Jeffrey Kohler, the Assistant 
Director of NIOSH for Mining and Construction. Again, it is my 
understanding that Dr. Howard will present prepared remarks on 
behalf of NIOSH and that both he and Dr. Kohler will be 
prepared to answer members' questions.
    Thank you all for being here this morning. I look forward 
to your testimony. We will begin with the initial statements 
from the witnesses, and after both agencies have provided their 
respective statements, we will proceed with any questions the 
members may have for any of the witnesses.
    Mr. Dye, we will begin with your statement.

STATEMENTS OF DAVID DYE, ACTING ASSISTANT DIRECTOR, MINE SAFETY 
 AND HEALTH ADMINISTRATION; RAY McKINNEY, ADMINISTRATOR, COAL 
   MINE SAFETY AND HEALTH, MSHA; DR. JOHN HOWARD, DIRECTOR, 
 NATIONAL INSTITUTE OF OCCUPATIONAL SAFETY AND HEALTH; AND DR. 
JEFFERY KOHLER, ASSOCIATE DIRECTOR FOR MINING AND CONSTRUCTION, 
                             NIOSH

    Mr. Dye. Thank you, Mr. Chairman.
    I am pleased to be here to appear before you today to 
discuss the work of the Mine Safety and Health Administration. 
While much attention has been focused on mine safety following 
the recent accidents in West Virginia, I assume MSHA does 
everything in its power to help the mining industry provide the 
safest, more healthful work environment possible for miners in 
this county.
    In recent years, miner fatalities and injuries have fallen 
to all-time lows. With the turn of the century, mining 
fatalities numbered in the thousands. In 1978, the first year 
under the new Mine Act, 242 miners died in mining accidents. 
Last year, there were 57 mining fatalities. In the last 5 
years, the mining industry experienced a 33 percent decrease in 
fatal accidents and a 24 percent decline in the total injury 
rate. This is an impressive record, but there is obviously room 
for improvement. One mining fatality is too many, as you said, 
Mr. Chairman.
    The accidents this year in West Virginia along with other 
recent fatalities are vivid reminders that we must continue to 
seek new and improved accident prevention measures. When 
accidents occur, we need to give miners the best possible 
chance to survive. We at MSHA continue to vigorously enforce 
the law. Last year, MSHA cited the most safety violations in 
more than 10 years. We fined violators close to $25 million 
last year. We do not take our enforcement responsibility 
lightly.
    Our primary goal is to prevent accidents, but accidents do 
occur, we respond. We are completing the accident 
investigations at Sago Mine and Alma Mine No. 1. These accident 
investigations and others we conduct this year will teach us in 
the mining community how to prevent future occurrences. This is 
what we do.
    I would like to take a moment, Mr. Chairman, as you did, to 
commend the mine rescue teams that responded to the accidents 
at the Sago Mine and Alma Mine No. 1. These teams, all the mine 
rescue teams, need to be recognized for their exceptional 
bravery, dedication, and professionalism. We have the best 
trained, best equipped, and most dedicated mine rescue teams in 
the world, and we need to maintain or even improve this 
capability.
    We need to give miners the best opportunity to survive 
fires and explosions. MSHA will soon be issuing an emergency 
temporary standard to address the requirements for all 
underground supplies of oxygen-generating breathing devices, 
training, lifelines, and accident notification requirements. We 
are working with new technology. Some of the new technology 
that MSHA has recently been investigating before Sago includes 
proximity protection devices to protect miners working near 
remote control equipment, personal continuous dust monitors 
that give real-time readouts on respirable dust levels, video 
cameras for surface equipment to eliminate blind spots and 
permissible for exploring gassy underground mines. That is just 
a partial list of the kinds of things that we have been working 
on.
    In January, MSHA published a request for information on 
underground mine rescue equipment technology. Today, we have 
received more than 70 proposals from manufacturers and 
distributors of emergency communication and tracking systems, 
and proposals continue to come in almost daily. MSHA has 
already selected several promising communication systems to 
evaluate.
    At this stage, the technology looks promising, but it must 
be further evaluated and tested before rushing into a decision 
to mandate its use in underground coal mines. To that end, in a 
cooperative effort with the West Virginia Board of Coal Mine 
Health and Safety, MSHA will conduct further field evaluations 
of these systems.
    I am also pleased to announce today that MSHA and our 
sister Agency NIOSH are co-sponsoring an international workshop 
on mine escape planning and emergency shelters, and that will 
include refuge chambers, on April 18, 2006 at the National 
Academy of Sciences here in Washington, DC. Among other things, 
representatives from NIOSH and MSHA will be discussing issues 
involving escape planning with an emphasis on evacuation as the 
first priority.
    We are also examining our civil penalty structure. For one 
thing, the Administration has proposed legislation to increase 
the maximum civil penalty for flagrant violations of mine, 
safety, and health standards, and I have personally directed a 
re-examination of the penalty amounts contained in the existing 
penalty schedule. In addition to that, MSHA recently filed two 
lawsuits in U.S. District Court for the Eastern District of 
Kentucky seeking injunctions against mine operators who have 
chronically failed to pay civil penalties assessed for 
violations of the Mine Act. The complaints ask that these 
operators be enjoined for failing to pay penalties for future 
violations of the Mine Act and to be required to post a bond 
with the court to guarantee future compliance with the law.
    Mr. Chairman, the men and women of MSHA are dedicated to 
saving lives. The men and women of MSHA consider every mining 
injury preventable. The men and women of MSHA grieve the loved 
ones of every miner who loses his life in the mines. The men 
and women of MSHA have one goal, Mr. Chairman, and that is 
sending every miner in this country home to family and friends 
safe and healthy at the end of every shift, every day.
    Thank you.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Dye follows:]
                   Prepared Statement of David G. Dye
    Mr. Chairman, I am pleased to appear before you today to discuss 
the ongoing work of the Mine Safety and Health Administration (MSHA). 
MSHA works diligently to promote mine safety and health. We want 
nothing more than to send every miner home safely at the end of every 
shift, every day.
    We have been moving closer to that goal every year. In recent 
years, the mining industry has experienced historic lows in injury and 
fatality rates. In 1978, the first year MSHA operated under the new 
Mine Act, 242 miners died in mining accidents. Last year, there were 57 
mining fatalities, 22 at coal mines and 35 at metal and nonmetal mines. 
From 2000 to 2005, the mining industry experienced a 33 percent 
decrease in fatal accidents nationwide--with coal mines seeing a 42 
percent decline. The coal mine lost-time injury rate declined one-third 
over the last 5 years. These are important and compelling statistics 
one must consider in placing current mine safety and health conditions 
in a proper perspective.
    MSHA inspectors vigorously enforce the law--with the support of the 
entire Agency, top to bottom. Last year, MSHA issued the highest number 
of citations and orders since 1994. In recent years, MSHA increased its 
use of ``withdrawal orders'' to gain compliance with the standards. 
This is a powerful enforcement tool as withdrawal orders require miners 
to be removed from the area affected by the violation, often resulting 
in disruptions to production. The number of withdrawal orders increased 
20 percent over the last 5 years when compared to the previous 5 years. 
MSHA issued more ``withdrawal orders'' in both 2004 and 2005 than in 
any year since 1994. It is important to note that any MSHA violation 
must be abated within a specified time frame before the penalty is 
assessed. In the case of withdrawal orders, the hazard must be abated 
before miners are allowed to work in the area or activity affected by 
the hazard.
    The statistics show our strong enforcement record very clearly. 
From fiscal year 2000 to fiscal year 2005:

     Total Citations and Orders issued by MSHA at all mines 
increased by 5 percent (119,183 to 125,161).
     Total Citations and Orders issued at coal mines increased 
by 19 percent (56,870 to 67,756).

    Total ``Significant and Substantial'' Citations and Orders issued 
at coal mines increased by 13 percent (23,586 to 26,717).
    MSHA enforcement personnel have significantly increased the 
issuance of withdrawal orders to coal mine operators who exhibit an 
unwarrantable failure to comply with the regulations. Unwarrantable 
failure orders are one of the most severe enforcement actions 
inspectors can take and in each of the last 2 years MSHA inspectors 
issued more such orders than in any year in the last 10 years.
    While enforcement activity and the number of miners went up from 
2000 to 2005, the number of coal mines fell. There were 2,124 coal 
mines in 2000 and 1,982 in 2005 (through the third quarter) and 108,098 
coal miners in 2000 and 112,449 in 2005 (through the third quarter). 
Clearly, MSHA inspectors continue to vigorously enforce the law--with 
the support of the entire Agency, top to bottom.
    I want to make something clear. MSHA's inspectors diligently and 
vigorously enforce the law. However, the Mine Act does not give MSHA 
the authority to preemptively close entire mines because of the number 
or frequency of violations. Nor does the Mine Act include the authority 
to close or seize a mine because of unpaid fines or penalties.
    While we are proud of our enforcement and compliance record, we 
know there is more to do. We are currently engaged in a thorough 
investigation of the recent tragic accidents at Sago and Alma Mines. We 
are determined to learn from these accidents.
    First, I want to publicly recognize the mine rescue teams who 
responded to the accidents at Sago Mine and Alma #1 Mine. These teams 
demonstrated exceptional bravery and professionalism, and they should 
be commended for their efforts, as well as for their dedication to 
their fellow miners.
    I would like to give you an update on the Sago Mine and Alma Mine 
#1 accident investigations. We have finished mapping the underground 
areas of the Sago mine and have completed nearly all of the witness 
interviews. Thus far, MSHA and representatives from the State of West 
Virginia have interviewed 46 individuals. We have completed an 
evaluation of the geology of the roof in the abandoned area of the mine 
where the explosion occurred. In conjunction with the National 
Institute for Occupational Safety and Health (NIOSH), we are developing 
a protocol to test the materials used in the Sago mine to seal the area 
where the explosion occurred. At this time we have no information that 
would suggest that the explosion is related to any conditions that MSHA 
enforcement personnel observed and cited at the mine before the 
explosion.
    We have completed the investigation of the underground areas of the 
Alma #1 mine with the exception of the immediate vicinity where the 
fire occurred. There are significant roof falls in this area that will 
have to be removed before the underground portion of the investigation 
can be completed. At this time we have interviewed 14 individuals and 
the remaining interviews should be completed within the next several 
weeks.
    As standard operating procedure, MSHA conducts an internal review 
after every major accident. We will look carefully to see if MSHA 
followed its own policies and procedures with respect to Agency 
activities prior to and during the accident. This report will be shared 
with this committee and made public. MSHA has always viewed its 
internal review process as an opportunity to take a hard and honest 
look at how we do our job and to use that information to improve how we 
do business. Past reviews have been comprehensive and objective 
examinations that resulted in responsible recommendations for 
improvement. The Government Accountability Office and the Department's 
Office of the Inspector General are also conducting independent reviews 
of various aspects of MSHA's programs.
    Despite the progress the mining industry has achieved in the area 
of health and safety, there is always room for improvement. The recent 
fatalities in West Virginia, along with other recent fatalities, are 
vivid reminders that we must continually seek new and improved accident 
prevention measures. And when accidents occur, we need to give miners 
the best possible chance to survive. I want to share some of the 
actions MSHA is currently taking in the areas of rulemaking, mining 
technology, mine rescue operations, and civil penalty assessments.
                      emergency temporary standard
    MSHA's safety and health standards are constantly being reviewed 
and adjustments made to improve them or address newly recognized 
hazards. As a direct result of the recent two West Virginia accidents, 
we will soon be issuing an Emergency Temporary Standard to improve 
safety in underground mines in the areas of: underground supplies of 
oxygen generating breathing devices, training, lifelines, and accident 
notification.
                               technology
    There has been much discussion surrounding the availability of 
technology and equipment that, if available to miners during and after 
fires and explosions, could increase their chances for survival. MSHA 
constantly searches for and evaluates emerging technologies that can be 
used to protect miners. On January 25, 2006, MSHA published in the 
Federal Register a Request for Information (RFI) on Underground Mine 
Rescue Equipment and Technology.
    MSHA is currently in the process of evaluating advanced underground 
mine communication and tracking systems. The Personal Emergency Device 
(PED) system is a one way ``through the earth'' communication system 
used in Australia, but only used in about a dozen underground mines in 
the U.S. MSHA is evaluating the PED at four different U.S. underground 
coal mines, and plans to evaluate the system at the only U.S. mine with 
a surface-mounted antenna. Information on PED performance will also be 
collected in Australian coal mines. Although the PED could send 
evacuation instructions to miners in the early stages of a fire, system 
limitations already noted in MSHA's field evaluations may seriously 
compromise the reliability or true usefulness of the PED during a U.S. 
mine emergency. These shortcomings include the vulnerability of 
commonly-installed underground antennas in the event of a fire or 
explosion, signal loss issues, range limitations, and potential 
interference with other mine communication systems.
    The Tracker Tagging System is an MSHA-approved tracking system for 
use in underground mines. A remote unit, carried by a miner, transmits 
its location to a ``beacon'' receiving unit as the miner passes the 
beacon. Tracking of miners is limited to identifying their location in 
the ``zone'' between two beacons where any given transmitter is 
located, and beacons are commonly spaced at 3,000-4,000 ft. intervals. 
While some have advocated mandating its use in underground mines in the 
U.S., little is known about the system's performance. There are no 
underground mines in the U.S. using the Tracker Tagging System. While 
it is used in several mines in Australia, it is used in just one 
underground coal mine in that country, and one coal mine in China.
    Both the Tracker Tagging system and the PED system must be further 
evaluated and their effectiveness tested before rushing into a decision 
to mandate their use in underground mines. To that end, in a 
cooperative effort with the manufacturer of both systems, MSHA and the 
West Virginia Board of Coal Mine Health and Safety will visit four 
mines in Australia this month to conduct further field evaluations of 
the two systems. The issues reported in U.S. mines regarding signal 
loss or ``shadow'' zones will be further investigated to accurately 
determine the nature of these anomalies.
    Other available communication technologies for consideration are 
actively sought through the RFI. MSHA is soliciting technical 
presentations or written comments on underground communications and 
systems for tracking underground miners and will hold a public meeting 
specifically for that purpose on March 13th at the National Press Club 
in Washington, DC. We are hopeful that the information gathered at this 
meeting, together with the conclusions drawn following the field 
evaluations of the PED and Tracker systems in both the United States 
and Australia, will help direct MSHA and all other concerned parties in 
our efforts to provide the best available communications technologies 
to miners in the event of an emergency underground.
    Furthermore, in response to the recent RFI noted above, MSHA has 
received more than 70 proposals from manufacturers and distributors of 
emergency communication and tracking systems. Additional proposals 
continue to come in on a daily basis. MSHA's Technical Support 
Directorate is currently reviewing these products and proposals and 
will assist interested manufacturers in obtaining approval for the 
equipments' use in underground mines. For our initial reviews we are 
prioritizing the emergency communications or tracking systems that do 
not rely on a wire back-bone and that have the greatest potential to 
remain functional in the event of a roof-fall, inundation, fire, or 
explosion. From the over 70 proposals received, MSHA has initially 
selected several promising communication systems to evaluate based on 
the following criteria: precise tracking and 2-way voice preferred 
capability; survivability in a fire or explosion; current availability; 
and capability of complying with MSHA requirements.
    To help expedite and standardize the evaluation of these existing 
and promising technologies, a mine communications partnership is being 
formed with membership consisting of the National Institute for 
Occupational Safety and Health (NIOSH), MSHA, the Bituminous Coal 
Operators Association (BCOA), the United Mine Workers of America 
(UMWA), the United Steelworkers, the National Mining Association (NMA), 
and the State of West Virginia. The primary goals of this partnership 
are to establish general performance expectations for mine emergency 
communications systems, establish uniform and fair criteria for testing 
and evaluating systems, and to conduct in-mine tests on systems. A 
secondary goal is to identify gap areas that should be addressed 
through research.
    The State of West Virginia, MSHA, and NIOSH are co-sponsoring the 
International Mining and Health Safety Symposium on April 20-21, 2006. 
The symposium will bring together technology developers, equipment 
manufacturers, the Federal Government, the State of West Virginia, 
organizations representing the mining community, and other countries to 
discuss the development, approval, and adoption of state-of-the-art 
technologies and mining methods. Wheeling Jesuit University will host 
the symposium at the Robert C. Byrd National Technology Transfer Center 
and the Civic Center in Wheeling, WV.
    MSHA is working with the BCOA and the NMA to jointly develop a 
template on mine rescue preparedness. This document will describe 
standardized mine emergency procedures related to mine rescue 
organization, lines of communication, and establishing lines of 
authority. In addition, MSHA has sought information from the entire 
mining community, including labor, industry, academia, and local first-
responders on improvements to mine rescue preparedness.
                       civil penalty assessments
    Assessments are civil penalties (fines) levied on mine operators, 
independent contractors working on mine property, agents of operators 
or contractors, or, in some cases, individual miners, for violating 
safety or health standards or sections of the Mine Act. The process of 
determining penalty amounts is governed by the criteria included in the 
Mine Act and Federal regulations. The penalty assessment process is 
administered by an MSHA office separate from the enforcement arms of 
the Agency to ensure the objectivity of the fines proposed for 
violations. The Office of Assessments implemented the most recent 
guidelines for proposing civil penalties in 2003.
    These penalties range from $60 to a statutory maximum of $60,000. 
The $60 fine is generally imposed for less serious, timely abated 
violations that occur in mines with low violation histories. More 
serious violations may receive a computer-generated regular formula 
assessment that assigns points based on criteria specified in the Mine 
Act. The most egregious violations may receive higher assessments with 
proposed penalty amounts determined by assigned specialists. The 
statutory maximum of $60,000 can be imposed for regular formula or 
special assessments.
    Proposed civil penalty amounts are determined using five statutory 
criteria in the Mine Act:

     the size of the operation,
     the operation's history of violations,
     the negligence of the operator,
     the gravity of the violation,
     the degree of good faith the operator exhibits in 
correcting the violation.

    A sixth statutory criterion, the ability of the operator to 
continue in business, is taken into account only after the amount of 
the fine is proposed and presented to the operator. The operator must 
provide convincing evidence of financial hardship and inability to 
continue in business. In these cases, MSHA may adjust the fine.
    If the mine operator thinks the proposed penalty is too high, the 
operator can contest the penalty. The contested penalty first goes to 
an administrative law judge of the Federal Mine Safety and Health 
Review Commission who can uphold the original penalty, vacate the 
penalty, reduce the penalty, or (in rare instances) increase the 
penalty. If the operator is dissatisfied with that result, the operator 
can ask the full Federal Mine Safety and Health Review Commission to 
hear the case. If the commission takes the case and the operator is 
dissatisfied with that result, the operator can appeal to the Court of 
Appeals. Sometimes this process takes several years. A case may 
ultimately go to the U.S. Supreme Court.
    Operators have 30 days to pay or contest their fines once they are 
assessed. If the fine is not contested, it is considered a final order 
of the commission after the 30 days. If these fines are not paid within 
30 days, MSHA begins contacting the operator and 8 percent interest 
begins to accrue. If the debt remains unpaid for 90 days, an additional 
nonpayment penalty of 6 percent begins to accrue, retroactive to the 
date the fine became final.
    Penalties are considered debts under the provisions of the Debt 
Collection Improvement Act of 1996. When a debt is delinquent more than 
180 days, MSHA refers the debt to the Department of the Treasury for 
collection. Treasury may attempt to collect the debt directly, refer 
the debt to a private collection Agency, collect the debt by offsetting 
Federal payments made to the debtor, or, ultimately, refer the debt to 
the Department of Justice for collection. If this process is 
unsuccessful, MSHA may terminate collection of the debt and report it 
to the Internal Revenue Service to be included in the company's income 
tax liability as taxable income.
    MSHA cannot close a mine if it has too many fines or does not pay 
the fines assessed. The Mine Act does not give MSHA that authority. 
MSHA is neither soft on enforcement nor soft on assessments. This 
administration stands by its assessment record. Over the last 5 years, 
MSHA proposed 21 percent more penalties at the $10,000 or higher level 
than during the previous 5 years. The total dollar value was up by 16 
percent during this same period of time.
    Approximately 6 percent of citations and orders are contested. 
Litigation at the commission or in Federal court impacts a large 
percentage of contested proposed assessments. For assessments contested 
between 1995 and 2005, 46 percent of the penalties were reduced and the 
average reduction in the penalty was 47 percent. The administration has 
already proposed legislation to increase the maximum civil penalty for 
flagrant violations from $60,000 to $220,000. Additionally, I have 
directed a re-examination of the penalty amounts and MSHA will soon 
propose rule making revisions to the penalty schedule (subject to the 
statutory $60,000 penalty cap).
    MSHA has also filed two lawsuits in February in the U.S. District 
Court for the Eastern District of Kentucky seeking injunctions against 
two separate mine operators who have chronically failed to pay assessed 
civil penalties for violations of the Mine Act. The complaints ask that 
both operators be enjoined from failing to pay penalties for future 
violations of the Mine Act and that both be required to post a bond 
with the court to guarantee future compliance with the law. MSHA is 
also evaluating other cases involving operators who have refused to pay 
civil penalties and will seek injunctions against them where 
appropriate.
    Finally, it is important to note that any MSHA violation must be 
abated within a specified time frame even before the penalty is finally 
assessed. In the case of withdrawal orders, the hazard must be abated 
before miners are allowed to work in the area or activity affected by 
the hazard.
    Every employee at MSHA is dedicated heart and soul to the Agency's 
mission. Every employee at MSHA lives and breathes for the day when 
there are no fatalities, no injuries, and no occupational illness among 
all of this country's miners. Every employee at MSHA strives every 
second of every day to reach our goal: sending every miner in this 
country home to family and friends, safe and healthy, at the end of 
every shift, every day. We will not rest until that happens. Thank you.



    The Chairman. Dr. Howard.
    Dr. Howard. Good morning, Mr. Chairman, Senator Isakson, 
Senator Rockefeller, Senator Clinton. I am pleased to be here 
with our statutory partner, MSHA.
    The focus of NIOSH research is to generate new knowledge in 
the field of occupational safety and health and to transfer 
that knowledge into practice globally. The mission of NIOSH 
safety and health programs is to prevent injuries and illnesses 
amongst our Nation's miners. Our mining program has an 
aggressive research transfer effort involving industry and 
labor workshops, mine site demonstrations and dissemination of 
print, electronic, and video information.
    One of our most effective research-to-practice tools is 
partnering with other Federal and State agencies, mine 
operators, labor, academia. These partnerships are the most 
important channel to move all research products into practice. 
We use injury and illness data, stakeholder input, and other 
mechanisms to organize our mining program into several major 
areas: The elimination of respiratory hazards, the prevention 
of noise-induced hearing loss, elimination of traumatic 
injuries including those of a cumulative nature, prevention of 
rock falls, disaster prevention and response.
    I would like to highlight this last area this morning. Our 
research in this area addresses a heirarchy: prevention, 
escape, and rescue for mine fires, explosions, and inundations. 
First, we focus on the development of design and engineering 
controls to prevent a fire, explosion, or inundation. Our 
research has led to the general use of fire prevention and 
ventilation practices throughout the industry.
    The second area, mine escape, focuses on providing 
effective training and tools to aid miners in making a 
successful escape from the mine during an emergency. Our 
training programs for self-contained self-respirators and the 
use of emergency communications are used throughout the 
industry.
    A third area, mine rescue, focuses on the development of 
training exercises for mine rescue teams and fire brigades as 
well as the development and testing of technologies to allow 
rescuers to work more quickly and more safely. Thousands of 
miners and more than 100 rescue teams have been trained by 
NIOSH in partnership with State mining agencies, mining 
companies, and labor.
    Our ongoing work includes preventing gas explosions from 
lightening strikes, preventing the propagation of explosions, 
improving response during the first 30 minutes of a mine 
emergency, training rescue teams, and launching a new pilot 
project to look at disaster prevention and response issue 
arising from the recent tragedies; but much remains to be done 
in several areas: one, to improve and harden ventilation 
systems; two, to improve seal construction and installation 
criteria; three, to develop the next general of self-contained 
self-rescue respirators; four, to improve emergency 
communication systems; five, to harden mine communications as 
well as atmospheric monitoring systems; and six, to improve 
escape training and establish application guidelines for rescue 
chambers and to examine carefully risk-management approaches.
    Recent mine disasters underscore the importance of NIOSH's 
disaster prevention research. Mining conditions are becoming 
more difficult. Mining methods are evolving. And the mining 
workforce is undergoing significant change. We are re-
evaluating the practices that made sense in the past to confirm 
their continued application to these changing mining 
conditions. There is no single solution. Each mine is different 
and requires a different mix of technologies and practices to 
address the problems at hand.
    We will continue to work with this committee together with 
our partners and stakeholders in the mining community to put 
into practice the best science to ensure a safer and healthier 
mining environment.
    I would be happy to answer any questions, Mr. Chairman. 
Thank you very much.
    The Chairman. I want to thank both of you for your 
testimony. I am sure we have quite a few questions.
    [The prepared statement of Dr. Howard follows:]
                Prepared Statement of John Howard, M.D.
                              introduction
    Good morning Mr. Chairman and other distinguished members of the 
committee. My name is John Howard, and I am the Director of the 
National Institute for Occupational Safety and Health (NIOSH), which is 
part of the Centers for Disease Control and Prevention (CDC), within 
the Department of Health and Human Services. I am accompanied by Dr. 
Jeffrey Kohler who is the NIOSH Associate Director of Mining and 
Construction. I am pleased to be here today with our sister Agency, the 
Mine Safety and Health Administration (MSHA). Our agencies work 
together toward the common goal of protecting worker safety and health.
    The focus of NIOSH research is to develop new knowledge and to 
transfer that knowledge into practice. The NIOSH Mining Program seeks 
to understand and explain through its research the underlying causes of 
diseases, injuries, and fatalities among mine workers, and works to 
develop interventions to eliminate these underlying causes. In many 
cases engineering controls, best practices and improved training 
programs are developed or improved. These have little potential for 
impact, however, until each is practiced at the mine. Towards that end, 
the NIOSH Mining Program has an aggressive technology transfer program 
encompassing workshops, stakeholder meetings, mine-level meetings, and 
the dissemination of information in print, electronic, and visual 
materials, among others. One of the most effective research-to-practice 
tools employed by the NIOSH Mining Program is the wide use of 
partnerships. These partnerships of labor, industry, Government, 
universities, and manufacturers are involved from project conception to 
completion, and provide an excellent conduit to move the research 
products into practice at the mine.
    Based on surveillance data and stakeholder input, the mining 
program, is organized in six areas.
                      respiratory hazards control
    This area is focused on the elimination of coal worker 
pneumoconiosis, silicosis, and the adverse health outcomes associated 
with exposure to diesel exhaust. The development of engineering 
controls and best practices is a major focus of this area, along with 
empowering miners with real-time dust measurement devices. NIOSH-
developed innovations to reduce exposure are found throughout the 
mining industry, and a few examples include coal and silica dust 
suppression technologies, and the diesel particulate matter filter 
selection guide.
                       noise-induced hearing loss
    This area is focused on the elimination of hearing loss resulting 
from exposures to noise. The development of engineering controls to 
reduce noise at the source is the major focus, with a secondary focus 
on training, along with the development of inexpensive devices to 
empower miners to determine their exposure in real time. Although this 
major area has only developed over the past 7 years, several NIOSH 
innovations can be found in practice, including improved noise controls 
for mining machinery and improved training tools for mineworkers.
                            traumatic injury
    This area is focused on eliminating the injuries and fatalities 
resulting from machinery and powered haulage, electricity, and falls, 
among others. The development of improved design practices, engineering 
controls, and training tools are focus areas for NIOSH researchers. 
NIOSH-developed recommendations for safer blasting have been adopted by 
the mining industry, and NIOSH developed training programs to recognize 
hazards and prevent injuries are utilized throughout the industry. 
NIOSH has recently licensed two new technologies that will reduce 
powered haulage injuries and electrical contact injuries, respectively.
                       cumulative trauma injuries
    This area is focused on elimination of musculoskeletal injuries, 
e.g., to the lower back, knees, and shoulders, and with an aging 
workforce, this is becoming an increasingly critical area. The 
identification and redesign of the workplace and work tasks is proving 
to be a successful approach in eliminating these problems, as is 
improved training. Important examples of NIOSH innovations include The 
Ergonomic Process which is being widely embraced in the coal, metal/
nonmetal, and stone industries, and the ergonomically designed shuttle 
car seat which has become a standard on nearly all shuttle cars in 
underground coal mines.
                    disaster prevention and response
    This area is focused on the prevention--escape--rescue hierarchy of 
mine disasters, e.g., fires, explosions, and inundations. This research 
focuses first on the development of design and engineering control 
interventions to prevent a fire or explosion. NIOSH developments, in 
the areas of fire prevention and ventilation are in general use 
throughout the industry. The second area of mine escape focuses on 
providing effective training and tools to aid mine workers in making a 
successful escape from the mine during an emergency. NIOSH developed 
training programs for Self Contained Self Rescuer use, and the 
Emergency Communications Triangle, are prevalent throughout the 
industry. The third area of mine rescue focuses on the development of 
training exercises for mine rescue teams and fire brigades, as well as 
the development and proving of technologies to allow rescuers to work 
more quickly and safely. Thousands of miners and more than 100 rescue 
teams have been trained by NIOSH in partnership with State agencies and 
mining companies. The Res-Q-Com communications system for mine rescue 
teams has the potential to significantly enhance communications during 
rescue. NIOSH's on-going research on the aging workforce is addressing 
some of the barriers to staffing rescue teams today.
                             ground control
    Mines are developed within the earth in the naturally occurring 
geologic structures. This area is focused on the prevention of 
unplanned rock failures since the structural integrity of the mine 
openings is essential to worker safety, the ventilation systems and 
adequacy of escape routes. The focus areas of research include defining 
rock mass behavior within specific geological and geotechnical 
conditions, such as high stress fields or interactions with surrounding 
mines; and the development of engineering controls and design 
strategies to prevent unplanned fall of ground, e.g., rock or ore. 
NIOSH-developed design practices and computer design tools are widely 
used throughout the industry. NIOSH developed or tested innovative roof 
supports are found throughout the coal industry, and Mobile Roof 
Support (MRS) is used on virtually every retreat coal mining section in 
the United States.
    Overall, important advancements have been made in mining safety and 
health, and many of these advancements can be directly related to NIOSH 
mining research and prevention activities and those of its partners. 
Nonetheless, much remains to be done. Recent mine disasters underscore 
the importance of NIOSH's disaster prevention research, and especially 
in light of specific changes. Mining conditions are becoming more 
difficult, mining methods are evolving, and the mining workforce is 
undergoing significant changes. Practices that made sense in the past 
are being reevaluated by NIOSH. There is no single solution--each mine 
is different and requires a different mix of both technologies and 
practices to address the problems at hand. NIOSH will continue to work 
together with our partners and stakeholders in the mining community to 
put into practice the best technology to ensure a safer and healthier 
work environment.
    At this time, I will be happy to respond to any questions that you 
might have.

    The Chairman. One of the things we are trying to do, of 
course, with the mine safety technology is to make sure that 
anything that we write into law is not just dealing with the 
present, but also looks at the future. We want there to be a 
focal point for the exchange of ideas, an incentive for people 
to invent things that will serve to make more people safer in 
mines.
    Can you give me an idea of the process for getting 
something approved once it has been invented and a little bit 
of a timeframe of how that would work? Probably Dr. Kohler 
would be the best to answer.
    Dr. Kohler. Thank you. Are you talking about the statutory 
approval of actually using the mines?
    The Chairman. Yes.
    Dr. Kohler. MSHA approval and certification would be.
    The Chairman. OK.
    Mr. Dye. Yes. Our approval, I think there is a serious 
misunderstanding of our approval process. The approval process 
is to ensure inherent safety of the device. So all electrical 
devices, whether they be a large continuous mining machine or a 
shuttle car or a hand-held communications device, anything that 
uses electricity, including battery power, has to be designed 
in such a way that it will not cause a spark in a gassy 
environment so you won't have either a fire or an explosion. So 
outside of equipment that is designed specifically for mining, 
where they take that into account when they design the 
equipment.
    Senator Byrd. Can you speak a little louder, please?
    Mr. Dye. I'm sorry. Is this better, Senator?
    Senator Clinton. Is your mike on?
    Mr. Dye. Yes, it is. I am sorry. I am a little horse today. 
I will try to speak louder.
    So when adapting equipment that wasn't specifically 
designed for mining, it requires that equipment be redesigned 
and a manufacturer will submit that to MSHA and we will work 
with them to redesign hand-held communications equipment, that 
usually requires re-designing the case, the outer case. It may 
require other things. Even for a small piece of equipment like 
that, is fairly expensive for manufacturers to do that.
    And they send it back to us. We test it. We make further 
suggestions. We test it again, if necessary, and that goes back 
and forth until that device will be inherently safe inside a 
mine.
    The Chairman. So what would you guess is the average length 
of time that it takes to do that?
    Mr. Dye. Well, there have been some complaints about the 
time, but that is really driven by how fast the manufacturer 
makes the changes and gets back to us. For instance, we are in 
the midst of approving a new hand-held walkie-talkie radio, a 
wireless communications device. That has taken a bit over a 
year, but that is largely because we are dealing with a 
Japanese manufacturer and have to send drawings and schematics 
and engineering details that go back and forth between us and 
Japan, and sort of the pace of doing that is determined by the 
manufacturer. So it has taken a while.
    I would like to mention in connection with that, we used to 
have an approved device made by Motorola. They decided not to 
manufacture that anymore. We worked very hard with them to 
continue to provide support for that device, which they are 
doing, but they are not providing a new device. So we worked to 
try to find another manufacturer that would do that, and 
Kenwood is in the midst of trying to make that device 
permissible.
    The Chairman. Thank you. I am concerned about how advances 
in technology can best be moved from the research lab to the 
commercial market. Now, we have heard there has been a lot of 
research done with something called piggyback oxygen systems, 
and from what I understand, those systems might be safer than 
supplying or catching spare self-contained self-rescuers 
because the piggyback system doesn't require removing the face 
mask on the oxygen operatus.
    Could someone comment on that system and give any 
suggestions you might have about how we can speed up or 
encourage the development and commercial availability of any 
new mine safety technology?
    Dr. Kohler. Yes. I could comment on the point. The general 
point that you raise is very critical, and that is in the 
mining industry, how do we effectively move demonstrated 
research concepts into the marketplace, and this has been a 
chronic problem because it is a very small industry. In fact, 
we find ourselves in the role of not only having to develop an 
intervention and demonstrate its effectiveness, but then we 
have to address a variety of other issues that would normally 
be addressed by manufacturers who would be clambering to 
manufacture the device for sale, but since the market is so 
small, they are not clambering. They don't want to take on any 
risk, and that creates a special problem for us to move that 
technology from the demonstration phase to the market face.
    In the case of some of the things that you mentioned and we 
mentioned earlier, in Mr. Dye's remark, he mentioned the 
proximity detection system, and that is a very good example. 
That is a critical technology that was developed by NIOSH to 
prevent mine workers from being pinched or crushed between 
machinery and the confined workspace. After it was patented, 
many licensing attempts were made and it has taken really years 
in order to find a manufacturer who is willing to bring that 
device to the market and then it has taken the efforts of MSHA 
and others working in cooperation with labor and industry to 
actually demonstrate it in the mine and bring it into the 
workplace.
    The respirator issue is another example. If we look at a 
holistic solution to all of this, one would say maybe it is 
time to move to the next generation of self-contained self-
rescuer. While the current generation is belt-wearable, the 
miner already is wearing so many things that it is not always 
practical to belt-wear it, and that creates its own issues. So 
a slightly smaller and lighter next generation is very much 
needed.
    Second, years ago, people looked into the concept of a 
dockable or piggyback type of self-rescuer. Whereas you worked 
your way through the mine in an escape instead of having to 
take off the self-rescuer and don a new unit, which involves 
some potentially serious risks, you could simply plug in 
another cartridge and keep moving.
    Those ideas are there. They need to be revisited, and 
Government needs to play a role in trying to move this 
technology into the workplace despite the small market.
    The Chairman. Thank you. My time has expired. I have a lot 
more questions, but probably some of them will be covered by 
others on the panel.
    We have been joined by Senator Kennedy, who of course made 
the trip with us and has been deeply involved in this whole 
process, but has to juggle a number of committees. We are glad 
you joined us. We will let you make a statement and then begin 
your questioning.

                  Opening Statement of Senator Kennedy

    Senator Kennedy. Thank you, Mr. Chairman. I remember just 
hours after the Sago mine or during the Sago mine tragedy 
calling our chairman at that time, and he indicated what can we 
do and when can we do it and brought the committee together, 
Senator Isakson and others that took that trip, Senator 
Rockefeller. Senator Byrd was here preparing for that very, 
very important Appropriations Committee. So I thank you for 
having this hearing today.
    I thank you also for extending the courtesy to Senator Byrd 
and Senator Rockefeller. That is typical of you. They have 
enormous interest, obviously, in their State, primarily West 
Virginia, but this is an issue, obviously, that reaches a 
number of other States, and there have been no two Senators who 
have been more committed to the safety and security and well-
being of miners all over this country than these two Senators, 
and we rely on them day in and day out for their counsel, 
advice, and their leadership. We are fortunate to have them 
here, and it is an unusual courtesy, Mr. Chairman, but it is 
typical of the way that you run this committee.
    I note and see many of our miners families that are here 
that have joined us. As you mentioned, we had the good 
opportunity to meet with a number of them. I found that just in 
that couple of hours--I know you did as well and our 
colleagues--that their insights into these issues of safety and 
security and technology was enormously profound, and not just 
interesting, but I thought incredibly insightful. I hope at 
some time or other, those of the families that have that kind 
of awareness and understanding, I hope they can have their 
contribution to this record because I do think it is enormously 
important and would be very, very valuable to us.
    Let me just say, we have got a number of my colleagues 
here, it seems we have got three basic kinds of issues. One is 
the resources. Money isn't everything, but it is a clear 
indication of where your priorities are, and if you are not 
going to give NIOSH the kinds of resource to be able to do the 
job and we have to rely on the initiatives of Senator Byrd, 
Senator Specter, Senator Rockefeller to try and boost up those 
figures, and you only have NIOSH able to have their equipment 
to test for black lung 2 weeks out of every year, we know that 
there is some problem, and we have enforcement, when we have 
penalties, it is always pleaded out to be the least amount 
after their fines for safety issues.
    It doesn't do much good to raise the maximum penalties if 
the whole tradition is to go for the minimum amount of 
penalties, and that has been certainly a part of the real 
tragedy over the period of the last years. So the penalties are 
just sort of a matter of the cost of doing business rather than 
recognizing these are real men and real women and real families 
that are doing extraordinarily dangerous and difficult work. So 
that is important.
    I was amazed to read the fact that many of the safety and 
security ideas that were in existence a number of years ago 
were effectively eliminated from the requirements from MSHA and 
now some of those are being reconsidered, which is useful, but 
is also awfully late. I was thinking about what they did about 
abandoning in 2001, for example, the emergency rules to improve 
the performance of emergency oxygen devices. This was an item 
MSHA proposed to enact in 1999, and like so many others, it was 
removed from the Agency's agenda by Assistant Secretary 
Lauriski. He was quoted recently, just 3 weeks ago, as saying 
in retrospect, maybe we ought to have had the requirements for 
more caches.
    I think the question I would have really today, Mr. Dye, is 
to ask you will the Agency have not just studies or proposals, 
but really concrete final regulations to require that every 
mine in the country has the best and most up-to-date technology 
and practices on communications, on oxygen, on rescue teams, on 
training, and keeping clear passage ways for ventilation, 
escape to save miners' lives and protect their health? What 
will you do to show that we value the miner's life in America 
as much as they do in Australia and as much as they do in 
Canada and that a miner's life is precious and must be 
protected no matter how large or small the size of the mine?
    Mr. Dye. I certainly agree with that sentiment. We will, of 
course, and we have the responsibility to look at all of those 
things, particularly the technology and to evaluate it, and we 
are going to do that as quickly as possible. As soon as we do 
that, we will look at what is appropriate to do in terms of 
regulation with those things. Some of them, I have to say in 
all candor, particularly in the communications area, have 
limitations. All communications equipment has limitations. We 
want to be realistic and make sure that everyone, including 
yourself and the other members, understand what those things 
are capable of doing and what they aren't.
    I certainly have no objection and the statute contemplates 
technology forcing, but we want to make sure that the 
technology can be and most likely that it is going to be 
improved and extended into the future.
    Senator Kennedy. Well, Mr. Dye, I just want you to re-read 
the excellent hearing that we had, which Senator Isakson had, 
15 or 18 different leaders with different types of technology, 
also those that were familiar with what was happening in 
Australia, some that had also been involved in the Naval 
research program, others in the private sector who have a long 
life experience. You cannot listen to those presentations and 
not recognize that in the areas of communication, in all of 
these areas, there is new kinds of technology, new 
opportunities, and new ways and paths for protection. The real 
kind of issue and question is whether you are going to be 
energetic enough, restless enough, tireless enough to make sure 
that we are going to implement them. Are you going to give us 
the assurance that if you haven't the legislative power to do 
it, that you are going to come back to the Congress and make 
the request of Congress for the additional kinds of authority 
so that we can get these safety measures working and in order 
and in place?
    Mr. Dye. Yes. I mentioned in my opening statement that 
since Sago we have had 70 different proposals that have come 
in.
    Senator Byrd. I can't hear you.
    Mr. Dye. I'm sorry. I will try a little louder again, 
Senator. Is that better?
    Senator Byrd. Yes.
    Mr. Dye. OK. We have had 70 different proposals that have 
come in, and we are winnowing through those and looking at the 
most promising ones. With respect to some that you mentioned, 
either this week or early next week, we are sending a team to 
Australia to look at a couple of those systems. We requested 
from the manufacturer a complete system on the tracker system 
to evaluate. We are not able to obtain it. So we are going to 
Australia to look at it, and we are, in fact, taking someone 
from our sister regulatory Agency in West Virginia and we are 
paying for that person to go to Australia with us.
    So we are moving very quickly to evaluate these things, and 
I can assure you, Senator, if we find the technology that is 
appropriate and looks promising at this point, we will take 
action to make sure that is done.
    Senator Kennedy. My time is going to expire. So what about 
Canada did they require 36 hours of breathable air? Are you 
going to send a team up there? Have you got all the information 
that you need?
    Mr. Dye. Are we talking about with respect to the rescue 
chambers up there?
    Senator Kennedy. Yes.
    Mr. Dye. I mentioned holding a workshop here with NIOSH in 
April. We are going to have people come internationally to work 
on those issues.
    With respect to rescue chambers, it is a little bit 
different with metal/nonmetal than it is in coal. In fact, we 
require rescue chambers in metal/nonmetal mines where it takes 
more than an hour to get out of the mine. We have, I believe, 
27 or 28 of those spread out in various parts of the country, 
but you have to remember a coal mine is just fuel. You are 
surrounded by fuel, unlike a metal/nonmetal mine where if you 
have a fire, it is usually a piece of equipment or something 
burning. Fumes and smoke come down to perhaps where you are. 
Hopefully you are a little ways away from it.
    Now, a coal mine, the fire can come to you and you have the 
risk of an explosion. So the kind of device that you use in 
this circumstance has to be considerably more robust.
    Senator Kennedy. Well, what I would suggest is that you 
bring in and include on your team some miners as well that have 
understanding and experience.
    Just, finally, would you comment about the penalties? You 
saw the Times story today, the Sago Mine, over 200 safety 
citations last year, almost half of which were serious and 
substantial. The maximum fine the company paid was $440, less 
than one-thousandth of one percent of the $110 million profit 
for last year reported by the company.
    Mr. Dye. Yes.
    Senator Kennedy. The fines issued are notoriously low and 
are often reduced. For example, the explosion at the Jim 
Walters resource mine in Alabama in 2001, where 13 miners were 
killed. MSHA originally issued a penalty of 435,000, but an 
administrative law judge at the Mine Safety Review Commission 
reduced it to a $3,000 penalty in a case where 13 miners were 
killed. The Secretary is appealing this, but this shows just 
how faulty the whole system is.
    Mr. Dye. Well, like you said, we don't agree with the 
administrative law judge and we have appealed that. Those are 
very difficult cases.
    Now, with Jim Walters, remember--well, I will tell you that 
they had two explosions there and then they flooded the mine. 
So that took a toll on the available evidence. Nonetheless, 
just like you see on CSI on television, our cameras are in 
there for weeks at a time gathering evidence, and we believe 
that we have sufficient evidence to sustain the $430,000 that 
we assessed, but we didn't make it past the administrative law 
judge. We are appealing it and we will carry that as far 
forward as we have to.
    Senator Kennedy. Well, you didn't have the evidence for 
$430,000 only evidence for $3,000?
    Mr. Dye. Well, no. I don't think that is correct. I think 
that is what the administrative law judgment thought. we don't 
think that.
    Senator Kennedy. In any event, it is illustrative of the 
fact that these penalties are missing achieving the kind of 
safety that I think all of us demand. We understand progress 
has been made, but when we have the kind of loss of life that 
we have seen, we know we can do better.
    I want to thank the Chairman and thank the members of the 
committee. We are in markup on the immigration bill in the 
Judiciary Committee today. So I particularly appreciate the 
courtesy of the chairman and the other members for letting me 
ask questions.
    The Chairman. We thank you for your participation and your 
expression of urgency that all of us have noted is leading us 
to do some nontraditional things with the committee to get this 
solved as quickly as possible and to have as much input as 
possible. We always thank you for your participation, and I 
would now call on Senator Byrd, who also is not on the 
committee, but has played a great role in the urgency that we 
have been working through the problems to make sure we get some 
solutions.
    Senator Byrd.
    Senator Byrd. Thank you, Mr. Chairman.
    Mr. Dye, can you speak up a little bit?
    Mr. Dye. I will certainly try, sir.
    Senator Byrd. How is that?
    Mr. Dye. I certainly will try.
    Senator Byrd. Don't be afraid.
    Mr. Dye. Oh, I am not afraid. I have a voice.
    Senator Byrd. Don't get nervous.
    Mr. Dye. I am not nervous.
    Senator Byrd. Just speak into the mike.
    Mr. Dye. I will try.
    Senator Byrd. We will see.
    In your testimony, you said that MSHA is doing all that is 
possible to ensure the safety of miners, and from what I have 
seen, you are doing what is required by the law, nothing more. 
What examples at the Sago and Alma Mines can you give where 
MSHA did more than what is required by the law?
    Mr. Dye. Well, I am glad you asked that question. At Sago, 
starting in late 2004 and 2005, when it appeared the incident 
rate was going up at that mine, our staff there started 
increasing their attention in that mine. They increased the 
number of onsite hours that they had spent at that mine from, I 
think, 405, I believe, up to about 744, about a 94 percent 
increase. They issued, as you mentioned, a large number of 
penalties and orders, used closure orders 18 times.
    Now, if I could just mention that people sometimes fixate 
on penalties. Orders, closure orders, are your biggest hammer.
    Senator Byrd. Closure orders?
    Mr. Dye. Yes, sir.
    Senator Byrd. How often have they been used? How many have 
been closed?
    Mr. Dye. Well, 18 times, they have actually closed the area 
affected by the violation.
    Senator Byrd. Can you say that again?
    Mr. Dye. The law allows you to close an area affected by a 
violation, and we used that 18 times in Sago in 2005, which is 
a fair bit for a mine that size.
    Senator Byrd. Can you give the committee examples of the 18 
times?
    Mr. Dye. Oh, gosh. The particular areas of those?
    Senator Byrd. What?
    Mr. Dye. Well, they used them for, I believe, rock falls, 
ventilation violations. There was a whole laundry list of 
things, that when we find a violation that has a serious affect 
on the mine and there has been a failure of the operator to 
correct that, then the inspector can just close that area of 
the mine until it is abated, but as soon as it has been abated, 
the law allows them to re-open.

                   Opening Statement of Senator Byrd

    Senator Byrd. Let me make my opening statement. Your 
testimony lists a number of initiatives and emergency rules 
that MSHA is pursuing but not yet implemented. Let us take a 
look at today's Charleston Gazette, Charleston, West Virginia, 
by Ken Ward.
    A rule to give the Nation's coal miners additional 
emergency oxygen has been delayed while the White House 
continues to review it, Government officials said this week. 
The United States Mine Safety and Health Administration 
announced the rule February 7th, but had not put it into affect 
by publishing it in the Federal Register. MSHA officials 
submitted their proposal to the White House's Office of 
Management and Budget on February 14th, a spokesman said. OMB, 
which must sign off on the Agency rules, sent the proposal back 
with comments and questions.
    On Tuesday, MSHA officials submitted a revised version. Now 
they are again waiting for the White House. Under growing 
pressure following a series of mining accidents in West 
Virginia, MSHA said it would implement the oxygen supply rule 
as a temporary emergency standard when Federal law allows MSHA 
to implement emergency rules only if miners are exposed to 
grave danger. Since passage of the 1977 Mine Safety Act, MSHA 
has used this authority only twice.
    Most recently, the Agency used an emergency rule to modify 
mine evacuation guidelines following the death of 13 miners at 
the Jim Walter Resources No. 5 Mine in Alabama in September 
2001. Details of the MSHA oxygen supply plan have not been made 
public. MSHA's spokesman Dirk Fillpot would not discuss his 
Agency talks with OMB about the emergency rules. ``That is all 
something considered part of the deliberative process,'' 
Fillpot said. ``You can get the final draft once it is 
completed.''
    Alex Conat, a spokesman for OMB said, ``You are making a 
mountain out of a molehill; this is a routine process.'' Conat 
said, ``We work with agencies all the time.'' In a phone 
interview, Conat refused to discuss what questions or concerns 
OMB had about the MSHA rule. Later, he e-mailed a prepared 
statement in which he said that MSHA did not make any changes 
to the rule at OMB's request, nor did the OMB staff ask for 
any. MSHA has said that its emergency rule would require 
lifelines to guide miners safely out of mines and immediate 
notification by operators of accidents and additional emergency 
training for miners.
    In West Virginia, Governor Joe Mansion has already pushed 
through legislation to require mine operators to install 
wireless communications and miner tracking devices in all 
underground coal mines. Over the last month, industry officials 
and MSHA have repeatedly questioned whether those devices will 
work.
    Bob Friend, an Acting Deputy Labor Secretary for MSHA, 
continued that effort during a House Committee hearing 
Wednesday in Washington. Friend told lawmakers that it is 
difficult to operate wireless communications from the surface 
to miners underground.
    What about that? Difficult.
    ``There is a lot of ground over our mines, and it is 
difficult to go through that much ground,'' he told the House 
Education and Work Force Subcommittee in a hearing. Under 
questioning from Representative Major Owens, Democrat of New 
York, National Mining Association Lobbyist Bruce Watzman also 
questioned the wireless devices.
    Why can't we get our act together? Why did 21 coal miners 
die this year before MSHA took the steps and initiatives in the 
emergency rules that MSHA is pursuing but have not yet 
implemented? Why weren't rules such as those addressing belt 
air ventilation in 2004 addressed before these critical 
initiatives?
    Mr. Dye. Well, with respect to what you said earlier----
    Senator Byrd. Speak up louder so the audience can hear you 
back there.
    Mr. Dye [continuing]. I share your frustration, but, in 
fact it is moving through, our regulation is moving through, 
relatively speaking, very fast. We expect that--I hate to 
predict, but within a very few days, we expect that we will be 
able to publish that emergency legislation.
    Senator Byrd. How much is a very few days?
    Mr. Dye. Well, you know, it is not in my control. My sense 
of it is that it is almost done. Their concerns were minor 
clarifications. So it shouldn't take them long.
    Senator Byrd. Well, give us something better than it 
shouldn't take us too long.
    Mr. Dye. Well, again, that is when they clear it. So that 
is beyond my control, but I don't expect that to be long.
    Senator Byrd. Can't you needle them a little bit?
    Mr. Dye. Well, there are others needling them, actually.
    Senator Byrd. We have known about these problems since 
1995. That is almost 100 years ago, 1995, isn't it?
    Mr. Dye. Well, it seems like it.
    Senator Byrd. You have had the opportunity to do something. 
Nothing has happened. It has been 25 years since mine rescue 
rules were updated. How about that? Twenty-five years, that is 
almost half as long as I have been on this Earth.
    It has been 25 years since mine rescue rules were updated.
    It has been 15 years since communications requirements have 
been updated. How much longer do we have to wait?
    Mr. Dye. Well, like I said, we are moving ahead as fast as 
we can go, Senator.
    Senator Byrd. Well, that is not good enough. How much 
longer are we going to have to wait?
    Mr. Dye. For the emergency rule? Like I said, a very few 
days.
    Senator Byrd. When?
    Mr. Dye. A very few days.
    Senator Byrd. How much is a very few days?
    Mr. Dye. As I said, it is not under my control, but my 
sense of it is that it is going to happen shortly.
    Senator Byrd. When will MSHA publish its emergency standard 
on mine rescue training, accident notification, self-contained 
self-rescuers, and lifelines?
    Mr. Dye. As I said, as soon as it is cleared.
    Senator Byrd. What?
    Mr. Dye. As soon as it is cleared by OMB, it will be sent 
to the Federal Register.
    Senator Byrd. Today's Charleston Gazettet reports that the 
White House is delaying a rule for emergency oxygen. I read 
that. Why is that?
    Mr. Dye. I don't sense that at all. As a spokesman said 
there, it is part of the normal clearance process. All 
regulations have to be reviewed by OMB. That has been in every 
administration that I can remember, and they are moving very 
fast on this one.
    Senator Byrd. Why did MSHA not update these rules before 
the Sago and Alma tragedies?
    Mr. Dye. Well, I have only been here for a short time, but, 
you know every--I don't know, but I have been at MSHA for a 
little over a year. So I really don't have a recollection back 
beyond that, but I will tell you that one of the sad but 
fortunate things after a major tragedy, there is always a great 
leap forward in these kinds of things, and we take advantage of 
that and we are going to make some progress here.
    Senator Byrd. Now, when we can expect your taking advantage 
of that and making the progress?
    Mr. Dye. As I said, in just a very short while, Senator.
    Senator Byrd. Gee, whiz. In a short while, people are dying 
in coal mines. They die in a short while too. When are you 
going to get off your duff? When?
    Mr. Dye. Well, I don't think I am on my duff, Senator, and 
I agree with you. I understand your impatience. It is not in my 
hands at the moment, but the minute that we get that back, I 
will send it to the Federal Register.
    Senator Byrd. Mr. Chairman, I want to thank you for what 
you are doing. I want to thank Senator Kennedy and Senator 
Rockefeller and Senator Clinton.
    All my life, I have been with coal miners. I know the 
stories. I know the tragedies. I know the weeping. I know about 
the sobs and the tears that are shed. It is a tragedy that we 
have to wait until coal miners are killed.
    Have you ever been in a coal mine?
    Mr. Dye. Yes, sir.
    Senator Byrd. When?
    Mr. Dye. The last time was several months ago.
    Senator Byrd. Several months ago.
    Well, Mr. Chairman, I will wait another round for further 
questions. I am not on the committee, but you are kind to let 
me ask these questions. I may have to wait a long time, but you 
are a friend and a friend of the coal miners.
    The Chairman. Thank you. We extended the time there, and I 
appreciate your participation in this process.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman. I have tremendous 
admiration and empathy for the position that the two Senators 
from West Virginia are in. I would acknowledge, however, that 
our job here is not to rewrite history, as disappointing as 
parts may have been, but it is to make history by making sure 
things don't happen again. And all of us had responsibility 
since 1995. So there is fault to go around. I imagine that 
everybody in this room that is in an elected or appointed 
office has some of that responsibility.
    Senator Byrd. Will the Senator yield?
    Senator Isakson. Sure.
    Senator Byrd. Lord Byron said, ``History with all her 
volumes vast, hath but one page.''
    Senator Isakson. You know, Senator, my goal in life is 
before I leave the Senate to have made one speech anywhere 
close to the caliber of your speeches or know quotes anywhere 
close to your ability.
    I notice, Mr. McKinney, that you are the administrator and 
Mr. Dye is the Acting Director; is that right, Assistant Acting 
Director.
    Mr. McKinney. Yes, sir.
    Senator Isakson. Well, without taking all 5 minutes of my 
time, Mr. Dye deserves a break. I would like to see if you have 
any comments regarding what Mr. Dye had to say in response to 
those answers, because I believe your positions would reflect 
that of the Administration. Is that not correct?
    Mr. McKinney. Yes. Just to respond to why something wasn't 
done beforehand, I think if you look at any time back--I have 
spent 36 years in the mining industry. So I have some 
understanding of it, but if you look at the 1969 Act Farmington 
and Finley caused us to rethink what we do in the coal 
industry. If you look at the 1977 act, Scotia brought that 
about, and we have had a terrible disaster at Sago, and I think 
it behooves us to sit and look at things that we need to do. I 
wished I had had the foresight and I was a soothsayer and I 
could have seen this coming, because I guarantee there is 
nobody here that is anymore hurt about this than I am. I didn't 
have that, but I think we all have to come to terms now that we 
have to do something positive. We have to agree upon that and 
we have to find the technology and we have to move forward. 
Now, we can debate what we should have done in the past, but 
that is not going to help the future.
    So that is where I stand on the issue. I think there are 
things we need to do technology-wise. I have served on a mine 
rescue team and I understand the issues associated with 
communication underground. I think it can be overcome. I think 
we have to explore all avenues to do that. I think we have to 
look at refuge chambers, but they have to be doable. We have to 
understand exactly what we are doing with the second 
explosions.
    Last week, we had an explosion in Alabama, the Shoal Creek 
Mine. We were very fortunate. We did the evacuation process. We 
got everyone out of the coal mine, but naturally people wanted 
to go back in there and we didn't allow them to. Less than 12 
hours later, we had a second occurrence underground and then 
another one the next day. So once you stay underground in any 
kind of chamber, if you choose to do that, you are susceptible 
to explosions.
    So there may be technology out there and we should explore 
that. If it is possible, we should make it available.
    Senator Isakson. I appreciate that answer, and to that end, 
Senator Clinton was kind enough to appear and be at almost all 
of our 2 hour hearings that we had. We heard from experts from 
around the world. I learned two things from that. First of all, 
there are technologies in Australia and other parts of the 
world that are being used that not only have promise, but are 
performing, although 100 percent reliability in a mine 
environment, depending on the type of mine, is a difficult 
thing to accomplish.
    To that end, Dr. Kohler, you made a comment--and I wrote it 
fast so if I misquote you, you can correct it--but you asked 
the rhetorical question shouldn't Government play a role in the 
product development, and I think you were referring then to 
product development of these emerging products that are 
providing some answers to the communication questions, some 
answers to the location question, some answers to the storage 
question, but not the total answer. I would just ask you, being 
at NIOSH--and you were at the whole hearing. You sat through 
the entire hearing we had--what can Government do and what role 
can it play to accelerate those product developments that have 
demonstrated promise that we want to get to full productivity?
    Dr. Kohler. Yes, Senator. I think there are a couple of 
things. First of all, Government can help everyone to recognize 
that there are some things that are in the here and now. There 
are things that we can do today and we should move forward and 
we should do those things today, and then we have taken care of 
helping out some group of mines and mine workers.
    Second, there are other technologies which would solve the 
problem in cases where today's technology maybe won't meet the 
bill, and those are the ones we have to focus on getting into 
the marketplace. Toward that end, I think that, for example, 
there are a number of concepts, some that have been on the 
shelf for many years that address some of the emergency 
communication issues. If Government made resources available, 
those technologies could be built into prototypes. They could 
be field-tested. Manufacturers could develop some confidence in 
their ability to work, and then perhaps they would take the 
lead and bring them to the marketplace.
    Senator Isakson. I am going to take advantage, Mr. 
Chairman, if you would let me ask one more question or make a 
comment.
    I learned a lot from the miners that met with us in West 
Virginia after meeting with the families of the miners that 
were lost, and I learned a lot of from the UMW gentleman that 
testified on that panel the day you sat in. We had the 
roundtable, and I asked him this question, and there are lots 
of miners in the room, so I am sure I will be educated if I 
didn't answer correctly, if it didn't reflect; but one thing I 
appeared to learn from all of them is that the most important 
priority for the miners is to give them a way to get out first, 
that they are in control of their environment with the 
opportunity to get out first is goal one. All the other things 
that you do are great. Rescue teams are great, but they can't 
go in if the environment won't tolerate their presence there. 
We know that from Sago, because those guys went in. That second 
crew, they tried to go in against what would be protocol to 
save their fellow miners, but they couldn't get past the 
barriers.
    So I would just say as we work with all of you on these 
solutions, that if that is, in fact, what the miner tells us, 
that we don't forgot that empowering them to save themselves 
first is job one. And the last part on that is on these 
approvals that Mr. Dye was questioned on quite extensively 
about various things, I have learned that potash mines are 
different from coal mines and metal mines are different from 
potash mines, but in this approval, are we so tied up in the 
approval process that we don't allow--do we give companies that 
are willing to test new equipment waivers to test in the mines, 
or do we wait until we have 100 percent foolproof proof that it 
works before we let anybody use it?
    Can somebody answer that real briefly so I don't take too 
much of Senator Clinton's time?
    Mr. McKinney. Yes. There are times and situations where we 
do give waivers to people to put it in the mines before we 
permanently approve it, and I think that is a prudent process.
    Senator Isakson. So do I.
    Mr. Dye. Remember that the approval for permissibility is 
only for gassy mines. There are a few metal/nonmetal gassy 
mines, Trona being one of them, but most times you don't have 
to go through that process to use equipment, say, in a coal 
mine.
    Senator Isakson. Well, I know that there are liability 
issues that companies have to concern themselves with, there 
are responsibilities issues you have to concern yourself with, 
but it seems to me in that hearing we had the other day that if 
we became catalyst for test beds of new products in the mines, 
that would be an incentive for these companies to go the next 
leg of development, which is why I asked the question.
    Mr. Dye. Yes. In fact, we do, and Dr. Kohler mentioned 
proximity detectors where we work very closely with companies 
to test that and work with them.
    Senator Isakson. That is what you are going to see in 
Australia, by the way.
    Mr. Dye. Yes.
    Senator Isakson. Proximity detectors by zone is one of the 
things we heard in that testimony as well.
    Mr. Dye. Yes. By the way, we are going to also go look at 
some rescue chambers there also.
    Senator Isakson. Thank you, Mr. Chairman.
    I apologize, Senator Clinton, for taking some of your time.
    The Chairman. Thank you.
    I will call on Senator Clinton next and then save Senator 
Rockefeller for the clean-up batter on this panel.
    Senator Clinton. Mr. Chairman, I would be more than happy 
to yield to Senator Rockefeller.
    The Chairman. That is okay.
    Senator Clinton. OK. Well, I think our witnesses, obviously 
this has to be a partnership within a regulatory framework. It 
needs to be a partnership between the Government and the mining 
companies and the miners, and it appears to me that we have not 
been as aggressive in pushing safety measures and in deploying 
new technology as we should have and could have been.
    Mr. Chairman, I ask unanimous consent to submit for the 
record the New York Times story today, ``U.S. is Reducing 
Safety Penalties for Mine Flaws.''
    The Chairman. Without objection.
    [The New York Times story follows:]

                [From The New York Times, March 2, 2006]

            U.S. Is Reducing Safety Penalties For Mine Flaws

                  (By Ian Urbina and Andrew W. Lehren)

    Craigsville, W.Va.--In its drive to foster a more cooperative 
relationship with mining companies, the Bush administration has 
decreased major fines for safety violations since 2001, and in nearly 
half the cases, it has not collected the fines, according to a data 
analysis by The New York Times.
    Federal records also show that in the last 2 years the Federal mine 
safety Agency has failed to hand over any delinquent cases to the 
Treasury Department for further collection efforts, as is supposed to 
occur after 180 days.
    With the deaths of 24 miners in accidents in 2006, the enforcement 
record of the Mine Safety and Health Administration has come under 
sharp scrutiny, and the Agency is likely to face tough questions about 
its performance at a Senate oversight hearing on Thursday.
    ``The Bush administration ushered in this desire to develop 
cooperative ties between regulators and the mining industry,'' said 
Tony Oppegard, a top official at the Agency in the Clinton 
administration. ``Safety has certainly suffered as a result.''
    A spokesman for the Agency, Dirk Fillpot, defended its record, 
pointing out that last year the coal industry had 22 fatalities, the 
lowest number in its history.
    ``Safety is definitely improving,'' Mr. Fillpot said.
    A spokeswoman for the National Mining Association, Carol Raulston, 
agreed.
    ``The Agency realized in recent years that you can't browbeat 
operators into improved safety, and this general approach has worked,'' 
Ms. Raulston said. ``The tragic events of this year have given everyone 
pause. But I don't think it means we want to abandon what we have found 
works.''
    Federal records show that fatalities across all types of mining 
have stayed relatively stable. In each of the last 3 years, 55 to 57 
miners have died in all areas of mining. Experts say a long-term 
decline in coal mine fatalities is in part a result of growing 
mechanization.
    Mr. Fillpot also said delinquent cases had not moved to the 
Treasury Department since 2003 because of computer problems. He could 
not say when the problems would be corrected. ``Referrals from MSHA to 
the Treasury Department have been impacted by technical issues on both 
ends, which we are working to resolve while maintaining an aggressive 
record on enforcement and collections,'' he said.
    Although the Agency has recently trumpeted Congressional plans to 
raise the maximum penalties, Federal records indicate that few major 
fines are issued at the maximum level. In 2004, the number of major 
fines issued at maximum level was 1 in 10, down from 1 in 5 in 2003.
    Since 2001, the median for penalties that exceed $10,000, described 
as ``major fines,'' has dropped 13 percent, to $21,800 from $25,000.
    Also troubling, critics say, is that fines are regularly reduced in 
negotiations between mine operators and the Agency. From 2001 to 2003, 
more than two-thirds of all major fines were cut from the original 
amount that the Agency proposed. Most of the more recent cases are 
enmeshed in appeals, so it is impossible to know whether that trend has 
continued.
    ``The Agency keeps talking about issuing more fines, but it doesn't 
matter much,'' said Bruce Dial, a former inspector for the mine safety 
Agency. ``The number of citations means nothing when the citations are 
small, negotiable and most often uncollected.''
    Before the January disaster at the Sago Mine near here, where 12 
miners died, the operator had been cited 273 times since 2004. None of 
the fines exceeded $460, roughly one-thousandth of one percent of the 
$110 million net profit reported last year by the current owner of the 
mine, the International Coal Group.
    At a House oversight hearing on Wednesday, Agency officials 
repeatedly cited the frequency of fines against Sago in the year before 
the accident as proof of aggressive enforcement. Exasperated, 
Representative Lynn Woolsey, Democrat of California, replied that maybe 
those fines had little effect because many were for $60. That point set 
off applause from audience members.
    ``Most fines are so small that they are seen not as deterrents but 
as the cost of doing business,'' said Wes Addington, a lawyer with the 
Appalachian Citizens Law Center in Prestonsburg, Ky., which handles 
mine safety cases. Using Federal records, Mr. Addington released a 
study in January indicating that since 1995 nearly a third of the 
active underground mines in Kentucky had failed to pay their fines.
    ``Operators know that it's cheaper to pay the fine than to fix the 
problem, ``Mr. Addington said.'' But they also know the cheapest of all 
routes is to not pay at all. It's pretty galling.''
    Larry Williams, who now lives in Craigsville, 50 miles east of 
Charleston, knows this frustration well. In 2002, he was working with a 
fellow miner, Gary Martin, in a deep mine near Rupert, 25 miles south 
of here, when the roof collapsed on them. Mr. Martin died instantly, 
and Mr. Williams was trapped for more than 4 hours under several 
thousand pounds of rock that crushed his pelvis and both legs.
    The men had been pillaring, or second mining, which involves 
extracting the last remaining coal in tunnels by scraping it from the 
coal pillars used to hold up the roof. This method is considered 
extremely dangerous. Federal regulations aim to reduce the risk.
    In this case, Federal investigators found that the regulations were 
not followed. The operators were fined $165,000. Those fines have not 
been paid, even though the mine owner, Midland Trail Resources, which 
did not reply to requests for comment, remains in business, according 
to State records.
    ``It makes me mad,'' said Mr. Williams, 50, who is paralyzed 
through much of his right side. ``One dead and another man's life 
ruined, and they pay nothing? It just doesn't make sense.''
    On Feb. 14, Senator Arlen Specter, Republican of Pennsylvania, 
introduced a measure to raise the maximum penalty that the mine safety 
Agency can assess for failing to eliminate violations that cause death 
or serious injury, to $500,000, from the current $60,000.
    The law would also prohibit administrative law judges from reducing 
fines for violations deemed flagrant or habitual.
    Ellen Smith, editor of Mine Safety and Health News, an independent 
newsletter that covers the industry, said that although the law was a 
positive step, one regulation that continued to need attention allowed 
fines to be lowered for smaller or financially troubled mines.
    ``The result of that provision is that it helps keep some habitual 
offenders in business,'' Ms. Smith said.
    Cecil E. Roberts, president of the United Mine Workers of America, 
said changes in the law were vital but so were changes in the Agency. 
``If you don't have enforcement along with a strong law, then you don't 
have a law,'' Mr. Roberts said. ``The current Agency mentality is to 
cooperate with mine operators rather than watchdog them, and safety 
suffers as a result.''
    Even when Congress passes strong safety laws, the Agency can write 
regulations that work around them. In 2004, for example, after years of 
pressure belts not just for moving coal but also to draw in fresh air 
from outside. A law already existed preventing such safety regulations 
because of concerns that in the event of a fire, the belts would carry 
flames and deadly gases directly to the work area or vital evacuation 
routes.
    Though the investigation is not complete, many experts say this is 
probably what occurred at the Aracoma Alma No. 1 Mine in Logan County, 
W.Va., where a fire left two miners dead on Jan 21.
    Mr. Fillpot said his Agency was revising the regulations on 
imposing penalties. He also pointed to civil suits filed by the Agency 
in what he said was an increasing effort to force operators to pay 
millions of dollars in unpaid penalties.
    ``You can expect to see more of these types of efforts from us in 
the coming months,'' Mr. Fillpot said.
    Mr. Williams, the miner who is partly paralyzed, remains skeptical.
    ``All I know is the roof collapsed only days after a Federal 
inspector looked right at those pillars and saw that the operator was 
having us do illegal things,'' he said. ``In these mines, laws don't 
matter.''

    Senator Clinton. Thank you.
    In reading this article and in following the issues around 
mine safety, I do think we have to do a better job on enforcing 
the rules we already have. That is the first order of business. 
We have rules. We need to improve those rules, but let us start 
with enforcing the rules that we have, and it was discouraging 
to read that Federal records show that in the last 2 years, 
MSHA has failed to hand over any delinquent cases to the 
Treasury Department for further collection efforts as it is 
supposed to occur after 180 days, and I understand that the 
explanation from MSHA is that the delinquent cases weren't 
turned over due to uncorrectable computer problems and that 
cases have not been removed since 2003.
    Is that correct, Mr. Dye.
    Mr. Dye. Partially, yes. It has been a nightmare, quite 
frankly. We have changed over to a new computer system. We were 
not able to do that for a while as we developed our new data 
base, but since, I think, May of 2005, the new computer system 
that they have been using at Treasury has not been able to 
receive those either.
    Senator Clinton. Well, can you walk them across the street?
    Mr. Dye. I wish we could. Believe me, I wish we could.
    Senator Clinton. Well, I don't see any reason why you 
can't. I mean, part of the challenge here is to enforce the 
laws we have. What kind of message does it send? Most of the 
mining companies in this country, I would assume--I certainly 
don't have the experience that my dear colleague Senator Byrd 
or Senator Rockefeller have, but I would assume that most of 
the mining companies are obviously concerned about the safety 
of their miners. Some aren't as much as we would want them to 
be, but everybody needs to be pushed to do what is expected. I 
mean, that is human nature.
    You know, obviously if we have got 100 things to do and 10 
of them are pressing, the other 90 are going to fall by the 
board, and it disturbs me that you have got low fines in the 
first place, small, negotiable, and often uncollected, as the 
article said. Some of these fines are as low as $60. At Sago, 
the operator had been cited 273 times since 2004, and none of 
the fines exceeded $640. Now, that is roughly one-thousandth of 
one percent of the $110 million net profit reported last year 
by the owner of the mine. I don't think you are going to get 
somebody's attention in a global economy if you are fining them 
$640 and you don't even collect it.
    So the first order of business, let us enforce the laws we 
have. Second order of business, let us improve those laws and 
regulations, and obviously I am concerned that we did have some 
regulations that were proposed at the end of the Clinton 
administration: One was regarding revised coal mine standards 
on self-rescue devices in order to allow miners adequate time 
to escape, because I agree with Senator Isakson. The first 
order of business, get our miners to safety, get them out, give 
them the tools they need to rescue themselves while we are 
trying to figure out how to get there to help out.
    The proposed rulemaking also called for manufacturer 
expiration dates and periodic inspections to ensure the fully 
functioning of these self-rescue opportunities. The standards 
were withdrawn in September of 2001, and the explanation was in 
light of resource constraint and changing safety and health 
regulatory priorities. Now, to me, we did the work on this 
proposed rulemaking. It was withdrawn in 2001. Is this one of 
the rules you are going to take another look at now?
    Mr. Dye. Actually, it wasn't a proposed rule. It was an 
advanced notice of proposed rulemaking, which means it didn't 
have a proposal. It asked questions to be answered. There was 
never any proposal.
    Senator Clinton. Well, but you didn't pursue that. It was 
an advanced rulemaking proposal that didn't go to rulemaking. 
Is that basically right?
    Mr. Dye. Correct.
    Senator Clinton. OK. Now, another Clinton administration 
requirement withdrawn would have required mines to purchase 
conveyer belts with improved flame tests and approval standards 
after a year. This decision directly, the decision not to 
pursue the flame-tested approved conveyer belts, that decision 
contradicted a study by NIOSH which highlighted the incredible 
speed of flame propagation on conveyer belts and its critical 
role in mine fires. Today's only existing standard measures 
burn time, and it is outdated, and we know the Alma accident 
was in part due to a coal conveyer belt catching fire. Where do 
we stand on that proposed rule or advanced notice?
    Mr. Dye. That was, in fact, a proposed rule. It dated from 
1992. It sat on the regulatory agenda for 8 years and was never 
acted on. Since that time, there were developments in 
atmospheric monitoring systems and fire suppression systems, 
and we made great advancement.
    Senator Clinton. And those are rules or just voluntary 
efforts by the mining companies?
    Mr. Dye. No. Those are rules.
    Senator Clinton. But I guess part of my concern here is 
that we have to do several things in this committee. No. 1, if 
we have rules on the books, why aren't they being enforced? If 
we need more resources, why aren't we asking for many more 
resources? No. 2, what are the rules that are needed? And then 
number three, obviously we are going to look for new 
technologies, but I have to say that the President's budget 
proposal which we received a few weeks ago includes no increase 
for enforcement activities at either OSHA or MSHA, not even in 
coal mining in response to the recent disasters. The 
Administration has not requested more inspectors to oversee 
mines and other work places and, actually, the budget when it 
comes to NIOSH, Dr. Howard, would be $250 million, $36 million 
less than requested last year.
    So we have some very significant challenges ahead of us, 
and I just want to end with this final comment: We are hear 
talking about mines and the safety of our miners, but I see a 
deterioration in worker safety across the board and I see a 
lack of commitment to investing in the technologies that will 
protect our workers.
    I can't help but mention, Dr. Howard, how pleased I am that 
you have now been appointed to help oversee the health 
consequences to first responders, workers, and volunteers at 
ground zero. One of the problems we had on 9-11 is nobody could 
talk to each other. We didn't have interoperable 
communications. One of the problems we have in the mines, we 
don't have effective communication. In Katrina, we did not have 
effective communication.
    We are all on notice, Mr. Chairman. We are on notice. We 
have not done what we need to do to improve communications and 
to improve worker safety and to upgrade technology and to 
enforce the rules on the books as they are. So I appreciate 
very much the chairman's commitment to working through these 
issues, and under his leadership and the leadership of our two 
great Senators from West Virginia, I stand ready to do what we 
need to do to help protect our miners and to take a broader 
look at worker safety in general.
    The Chairman. Thank you.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman.
    I want to just make one observation to the audience, and 
this is true under both Democratic and Republican 
administrations, that the gentlemen who are testifying are not 
testifying out of words and ideas which they, themselves, 
created and just came up here and gave. None of the gentlemen 
testifying can give testimony in a congressional hearing 
without the approval of the Office of Management and Budget. 
They have to go over to see if there is anything which is 
inconsistent with what their policy is. So you can see already 
an enormous conflict between OMB being overwhelmed by budget 
problems and what they will allow these gentleman to say.
    Second, I suspect that it rises higher than that. I suspect 
that it goes to the Secretary of Labor, and I don't know 
whether it goes to the White House or not, but that is an 
extremely important point for families here and miners here to 
understand. They are not free to speak what they want. That is 
why they cannot answer questions as directly as perhaps they 
might, because OMB doesn't want them to, doesn't want them to 
have to commit. Again, this is bipartisan. It works in both 
kinds of administrations.
    It is the way that Government controls what happens. Now, 
that can be good if what is happening is good. It is bad if it 
means that we can't really get to the bottom of things. So 
understand that. It is not their fault.
    Walking across the street, Mr. Dye, you could walk it 
across the hall to Secretary Chao and probably get some 
answers.
    One of the great problems in Federal Government, it strikes 
me, are people who have jobs that they have had either for a 
year or for years and they don't put themselves at risk. The 
coal miners are put at risk every day because they cannot get 
out of sorts with the chain of command, and the chain of 
command rules, therefore the philosophy of the Administration, 
be it Democratic or Republican, it rules and guides everything 
that is going on in this hearing.
    We all know that, but I wanted to say that so that you all 
would know that. If you are not hearing answers that you would 
like to hear, it may be because you wouldn't hear them under 
any event, but it may be because they can't be given.
    So I hope I have a little time left. The September 2003 GAO 
report on mine safety found that MSHA was not requiring 
mandated semi-annual inspections of ventilation and roof 
support plans. Roof supports are overwhelmingly important in 
mines. Nearly half of MSHA's districts had not completed these 
technical inspections in what I would call a timely fashion. I 
don't care what timely means; if they are not completed, they 
are not completed.
    Ventilation failures happened at Sago and Alma. The belt 
line opening at Alma and the failure of seals at Sago both were 
a fact of what took place. These must be seen as contributing 
factors to the deaths of the West Virginia miners, and I want 
to know what MSHA is doing to correct this problem.
    Mr. McKinney. Sir, I would like to answer that question. I 
was directly involved in that GAO report, and we did exactly 
what Senator Clinton said. We had a computer issue. We ran 
those inside a computer and we couldn't see them. We had 
glitches. So what we had were hard copies of each one of those 
reviews. Those reviews were done and they were documented in 
writing.
    The problem GAO had was that we didn't have any computer 
system for oversight purposes. I personally gave them copies of 
those and pointed out to them the work was done. We protected 
the miners as we were charged to. The fact that the computer 
doesn't work, I'm sorry about that, but I am more concerned 
about us getting the job done. We wrote a letter of protect 
back to those folks responding to that allegation and explained 
to them very clearly that your statement is incorrect. We did 
the work. You are right. We don't have the oversight 
capability. We are going to build a data collection system that 
will allow us to do that.
    So I sit here today telling you I understand their 
allegation. I just disagree with that allegation.
    Senator Rockefeller. So what happens from this point 
forward?
    Mr. McKinney. Well, before this, we began to build a data 
base, and they are back in the shop. I have a meeting with them 
Tuesday, and hopefully this time they will not only see the 
hard copies that prove that we did the work; they will see the 
oversight where we have got it entered into our computer 
system.
    Senator Rockefeller. You briefed me at Sago, didn't you?
    Mr. McKinney. Yes, I did.
    Senator Rockefeller. And you did a good job. I congratulate 
you for that.
    Mr. McKinney. Thank you.
    Senator Rockefeller. I want to get back to Senator 
Clinton's point, because it is really befuddling, that is I 
think the figure is every single mine infraction, the fine at 
Sago was either $60 or $270, I believe. You can correct me if 
you want. I went over 200. Now, I could not understand all of 
the infractions because I am not underground every day, but I 
could understand 100 of them, and no matter what they were and 
how much they seemed to differ in intensity or effect, the 
fines were all the same.
    Now, I agree with Senator Clinton's point, the tiny 
percentage or the fraction they represent is not an incentive, 
but why would they all come to be the same? Why would all of 
the infractions turn out to be exactly the same?
    Mr. Dye. Well, all of them have not been assessed yet.
    Senator Rockefeller. Well, I saw 200. Just deal with the 
200.
    Mr. Dye. The major ones, what they call the special 
assessment, the more egregious ones, particularly the orders, 
those have not yet been assessed and those will be much higher. 
The way that works----
    Senator Rockefeller. Wait a minute. I want to catch you on 
that, because these went back and now you are saying they will 
be higher.
    Mr. Dye [continuing]. No. No. Some of them have not yet 
been assessed.
    Senator Rockefeller. I'm sorry, but there are 200 that have 
been assessed and they have been given a numerical value of 
worth.
    Mr. Dye. Yes.
    Senator Rockefeller. Which is extraordinary low. So forget 
what hasn't been assessed. What has been assessed, how does it 
get to be that way?
    Mr. Dye. Well, there is a point system that is published in 
the Federal Register, and depending on what the inspector 
writes on the ticket, it goes in and then those are entered and 
run through a computer system, and then they are all, whatever 
they have on there, they are treated with whatever the point 
system is for that particular infraction or its gravity or its 
level of negligence. There are six things in the statute that 
you have take into account. It is statutory, and all of those 
things are applied. It is all in the Federal Register, like I 
said. It is built into a computer program and it goes through 
that and it churns it out.
    So I am not sure that they are all exactly the same, but if 
they have similar gravity, similar negligence, that sort of 
thing, it also takes into account the size of the mine. That is 
statutory criteria.
    Senator Rockefeller. What worries me about your answer, and 
I recognize, Mr. Chairman, my time is up, but what worried me 
about your answer is that what you are saying is legally 
correct, I am sure----
    Mr. Dye. Factually correct.
    Senator Rockefeller [continuing]. But there is no way that 
there can be, just the 200 that I looked at and went through 
page by page, that can come out to those two amounts, and not 
just those two amounts. Nothing varied. It was either $60 or 
$270, period, but the infractions varied enormously, and my 
real point is that, one, if the final is going to be 
predictable and, second, if they are that small, it really is, 
as has been pointed out, a cost of doing business. It is much 
easier for the company simply to pay the fine, not worry about 
having to fix the problem. You said you would shut them down 18 
times, but in sections, and I think what others are asking is 
why don't you shut the whole mine down when things get bad.
    Mr. Dye. No. We don't have an authority to do that.
    Senator Rockefeller. I understand that, and that is not my 
main question. I am referring to the 200, and there was no 
sense in that, and they were very small fines and they were not 
like putting on a fine at all. There was no behavioral 
modification inducement to the coal company, in my judgment. Do 
you want to respond?
    Mr. Dye. I am sorry?
    Senator Rockefeller. Do you want to respond?
    Mr. Dye. Yes. I will go back and look at those. I don't 
recall them being that uniform, but it is not that I don't 
believe it. I will just go back and look at them.
    The other things, can I tell some of the other things that 
we did there? Because I think it goes with everything that 
happened. Like I said, we shut down the mine or portions 
affected 18 times, which on a miner operation, a miner section, 
that could cost you $50,000 a shift. If you had a long-wall 
section, that could cost you $150,000 or more in lost revenues. 
In addition to that, Ray's staff in District 3 met 21 times 
with that company, telling them that they needed to change what 
they were doing, worked with them on that. When they had 
problems, when they weren't doing their pre-shifts right, we 
went in and retrained all of their pre-shift examiners, 
arranged for educational field service personnel to come in and 
do more training.
    At the end, it escalated up. Their CEO was scheduled on 
January 6th, unfortunately the timing, but to come in and meet 
with Ray in Washington, telling them that they really needed to 
change what they were doing. Like I said, they upped the 
inspection hours there from 405 to I think 744, something like 
that.
    Senator Rockefeller. I want to be able to have a second 
round. I don't want to wear the patience of our honorable 
chairman.
    The Chairman. Actually, in the tradition of this committee, 
we leave the record open for 10 days. We submit additional 
questions to the people that are on the panel and continue 
gathering information that way, and we have extended the round 
that we had considerably longer than we normally do; but we 
find that we get more information, actually, from the written 
questions than we do from the verbal questions. They can be 
phrased more carefully and also they get into a lot more 
detail.
    Mr. Dye. I apologize, Senator. I wasn't meaning to 
filibuster. I was trying to give additional information.
    Senator Rockefeller. I understand.
    Mr. Chairman, they do answer the questions?
    The Chairman. They do answer the questions and the 
questions and the answers become a part of the record as well.
    Senator Rockefeller. For those of us not on the committee, 
do we get to see those answers?
    The Chairman. Yes, you do.
    Senator Rockefeller. Thank you.
    Senator Byrd. Mr. Chairman, may I just say one other thing? 
MSHA had the legal authority to require better communications 
and equipment, didn't use it. It had the legal authority to 
assess tougher penalties. It didn't use that authority. Even 
today, MSHA still has not implemented these critical safety 
improvements, nor has it requested funds to replace the 217 
safety inspectors lost since 2001.
    So the case grows stronger every day for this Congress, 
starting with this committee, to adopt the West Virginia 
Delegation Mine Safety bill. We are just going to have to force 
MSHA to act.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, and I want to thank the panel, and 
you can look forward to consider additional questions, I am 
sure, and Dr. Howard and Dr. Kohler didn't get many yet, but I 
had another dozen questions that I ran out of time before, 
although I have to admit that about 10 of those are of a more 
technical nature that will require some charts and numbers.
    So thank you for your participation.
    Our second panel today is composed of nongovernment 
witnesses, all of whom have an extensive background in mining 
and mine safety and who represent much of the diversified 
constituency that deals with matters of mine safety on a daily 
basis.
    We have Dr. Tom Novak, who is the department head and 
Holland Professor of mining and minerals engineering at 
Virginia Tech in Blacksburg, Virginia. He holds an 
undergraduate degree in electrical engineering from Penn State 
University, a master's in mining engineering from the 
University of Pittsburgh, and a doctoral mining degree from 
Penn State. He is a licensed professional engineer, a fellow of 
the Institute of Electrical and Electronic Engineers as well as 
a member of the Society of Mining, Metallurgy, and Exploration 
and the American Society of Engineering Education. He is the 
author of a host of scholarly articles on various mine safety 
issues.
    The second panelist is Michael Neason, a certified mine 
safety professional and the Administrator of Mining Practice 
Specialty Group for the American Society of Safety Engineers, 
ASSE. The group is composed of over 350 safety professionals 
with extensive mine safety experience. Mike is a fifth 
generation miner himself who began his career as a utility man. 
He is currently in charge of the safety and health program at 
the Midwest Region for Hanson Aggregates, a Kentucky-based 
mining company.
    The third panelist is Mr. Cecil Roberts, the president of 
United Mine Workers of America, UMWA. UMWA has been a vocal 
advocate of mine safety for many decades. Mr. Roberts himself 
has testified before Congress on a number of occasions on a 
variety of mining and mine safety issues and has always 
provided valuable information as well as an important 
perspective on these vital issues, and, of course, he was a 
part of the briefing team for those of us who went down to the 
Sago Mine. We appreciate that.
    And Mr. Michael Peelish is appearing on behalf of the 
National Mining Association. He currently serves as the senior 
vice president for Safety and Human Resources for Foundation 
Coal Corporation. Mr. Peelish holds an undergraduate degree in 
mining engineering from West Virginia University and a law 
degree from the same institution.
    I want to welcome all of you. I look forward to hearing 
your testimony this morning, and as with the previous panel, I 
would ask that you limit your oral statements to 5 minutes or 
less. Following everyone's statements, we will begin questions 
again.
    We begin with Dr. Novak's statement.

  STATEMENTS OF MIKE PEELISH, SENIOR VICE PRESIDENT, SAFETY & 
   HUMAN RESOURCES, FOUNDATION COAL CORPORATION; MICHAEL E. 
 NEASON, AMERICAN SOCIETY OF SAFETY ENGINEERS, SAFETY DIRECTOR 
 AT HANSON AGGREGATES; DR. TOM NOVAK, C.T. HOLLAND PROFESSOR, 
HEAD OF DEPARTMENT OF MINING AND MINERALS ENGINEERING, VIRGINIA 
 TECH; CECIL ROBERTS, PRESIDENT, UNITED MINE WORKERS OF AMERICA

    Mr. Novak. Good morning, Mr. Chairman and members of the 
committee as well as guests, Senator Byrd, Senator Rockefeller. 
My name is Thomas Novak. I am the C.T. Holland Professor and 
Department Head of Mining and Minerals Engineering at Virginia 
Tech. I have been associated with the coal mining industry as a 
miner, an engineer, a researcher, educator, and consultant for 
the past 35 years, and I thank the committee for giving me the 
opportunity to address the issue of mine safety.
    The coal mining industry has made major strides to improve 
worker safety over the past decades. In the last 15 years, 
annual fatalities have dropped 76 percent from a high of 66 in 
1990 to a low of 22 in 2005. Nevertheless, the tragic events 
that occurred during the first 2 months of this year have 
caused us all to pause and to re-evaluate our commitment to 
mine safety.
    I am not here today to propose a quick fix for the problems 
of mine safety. Instead, I am here to recommend an overarching 
approach through engineering and scientific research. The U.S. 
Government's strong commitment to research and development will 
provide the most effective means for improving mine safety. 
Universities with mining engineering programs are ready to 
partner with mining companies and Government agencies to 
identify mine safety issues and to conduct interdisciplinary 
research in order to address, eliminate, or at least minimize 
safety hazards. University researchers are also prepared to 
work with manufacturers to ensure the commercialization of 
proven technologies.
    Unfortunately, Government funding for mine safety research 
has significantly decreased over the last few decades. Funding 
dropped from a high of approximately $140 million in 1979 to 
approximately $30 million in 1999 with the vast majority of 
this amount going to in-house projects and personnel at NIOSH's 
two research labs. Because of this drop in funding and the 
dismantling of the internationally-renowned U.S. Bureau of 
Mines in 1996, the United States has lost much of its expertise 
in mine safety research. As a result, centers of excellence in 
mining research have shifted to other countries such as 
Australia. The remaining technical fragments of the U.S. Bureau 
of Mines are now managed by NIOSH, operating under the Center 
for Disease Control.
    NIOSH's Office of Mine Safety and Health Research has been 
responsive to the industry's needs, but it can only do so much 
with its extremely limited contract research budget. The 
decrease in contract funding has also devastated mining 
engineering programs. In fact, only half of the programs that 
existed 20 years ago exist today. A recent study commissioned 
by the Society of Mining, Metallurgy, and Exploration, which we 
refer to as SME, estimated that 300 to 400 graduates per year 
will be needed to meet the demands of industry for the next 10 
years. At the same time, SME reports that only 69 students 
graduated last year with baccalaureate degrees in mining 
engineering. Of the dozen accredited programs, only two 
graduated more than 10 students last year. Keep in mind this is 
for an industry that provides more than half of the Nation's 
energy for electricity as well as the mineral products that are 
vital for our defense, manufacturing, civil infrastructure and 
national economy.
    These are scary statistics since highly-trained mining 
engineers will be needed to design and manage our country's 
mining operations and deal with the complex issues of safety. 
Along these same lines, over 60 percent of the mining 
engineering faculty is over the age of 50 and one-half of all 
of the faculty plan to retire within the next 10 years, thus 
mining engineering education is at a critical juncture. 
Research funding is necessary to produce the required Ph.D. 
graduates to replenish our aging faculty.
    In summary, I hope the committee will consider my 
recommendations to institute a strong Government-supported 
university research program. This program offers the best 
method for addressing mine safety issues through a three-
pronged approach which provides: one, means for in-depth 
multidisciplinary analyses and solutions to critical issues 
that confront our mining industry through collaboration with 
Government agencies, mining companies, and manufacturers; two, 
a means for producing well-qualified mining engineers who are 
trained to promote a mind-set of safety consciousness in the 
design and operation of our mines; three, a means for regaining 
our country's mine safety expertise through the training of 
future researchers and mining engineering professors who will 
ensure the sustainability of a vibrant mining engineering 
profession.
    I would further recommend that this program be administered 
through NIOSH's Office of Mine Safety and Health Research or a 
newly-created institute based upon this office rather than 
MSHA. Research and enforcement should be kept separate and MSHA 
should be permitted to totally dedicate its resources to 
enforcement.
    Mr. Chairman and members of the committee, thank you for 
your attention.
    The Chairman. Thank you.
    Mr. Neason.
    Mr. Neason. My name is Mike Neason, and I am a safety 
manager for Hanson Aggregates. I coordinate the safety and 
health programs for 35 operations in and around Kentucky. I 
grew up in a mining family in Alabama and became the fifth 
generation to work in the mines when I took my first job as a 
utility man when I was a teenager.
    Today, I am accompanied by Adele Abrams, who is ASSE's 
national representative and she is also a certified mine safety 
professional.
    On behalf of ASSE and its mine practice specialty, I would 
like to commend this committee for taking a critical look at 
mine safety and health. Like most of the Nation, our members 
were moved by the tragedies in the Appalachian coal region this 
last winter. As a result, the ASSE assembled a task force to 
address emergency preparedness and communications in mining, 
and we look forward to providing some more specific conclusions 
to this committee.
    Our members live with safety and health issues in mines 
every day, and from that vantage point, we have some general 
perceptions that we would like this committee to consider. 
First of all, as we move forward in improving safety and 
health, it is important that the general trend in declining 
fatalities and injuries and illnesses in American mines not be 
wholly overlooked in light of the recent tragedies. There are 
some things that are working very well in mining.
    One of those positive things is NIOSH. NIOSH's mining 
program has been an enthusiastic partner both with us at Hanson 
and with the ASSE. As an independent Federal Agency responsible 
for research and not enforcement, NIOSH is uniquely positioned 
to reach out to producers, to labor, to academia, or whoever is 
necessary to help solve a problem. Most importantly, they have 
earned the trust and respect of miners, and as a result, they 
have a great deal of access to this industry. The ASSE strongly 
urges this committee to avoid any proposal that would take 
resources away from NIOSH or to spread out the responsibility 
for advancing mining technology.
    Another positive thing that we have talked about a bunch 
today is that advancing technology. The effectiveness of 
utilizing advanced emergency preparedness was made absolutely 
clear with the successful rescue of the 72 potash miners in 
Canada this past January. Our task force will be evaluating 
these and other technologies and we urge both NIOSH and MSHA to 
explore the utility of other technologies developed by the 
Department of Defense, NASA, and fire service industries.
    I would also like to say a quick word about wholesale 
regulations, which everybody here so far has touched on. There 
is just a world of difference between different kinds of mines. 
Our underground limestone mines bear almost no resemblance to 
an underground coal mine, and as such, the different mining 
industries have very different risk factors that all have to be 
considered individually if you want to provide all miners with 
the highest possible level of protection. Any one-size-fits-all 
approach will require some mining segments to adopt controls 
that are inappropriate for their applications and this would 
likely divert resources away from individual safety concerns, 
exposing some miners to a potentially greater risk.
    In conclusion, from our view, MSHA doesn't lack power. 
Compared to OSHA, MSHA is nearly a day-to-day presence in 
mining. It could very well be what MSHA really needs is more 
flexibility to focus resources on some actors instead of on 
every operation to the extent that it does now. A bigger bang 
in enforcement may be needed. More resources may be needed, but 
so is a more effective use of the resources Congress has 
already given incentives for small mine operators and so are 
more cooperative efforts between MSHA, NIOSH, industry, labor, 
and organizations like the ASSE.
    I can tell you that testifying here is a very intimidating 
venue for me. I do most of my talking in maintenance shops, and 
this is a big change, but what you are doing here is very 
important to me and to the guys that I work with back home. So 
I wanted to take this opportunity to come down and contribute 
to these hearings in any way that I can.
    We are all dedicated to ensuring that every miner can go 
home safely at the end of the shift. Your attention and your 
support in this effort is very much appreciated by our industry 
and by the safety professionals I represent here today. I can 
offer you the expertise and experience of ASSE members in 
whatever way this committee needs, and I appreciate you 
including us here and I am happy to answer anything that you 
have.
    The Chairman. Thank you very much.
    [The prepared statement of Mr. Neason follows:]
                   Prepared Statement of Mike Neason
    Chairman Enzi and members of the committee, my name is Mike Neason, 
and I am a fifth generation miner and a Certified Mine Safety 
Professional. I manage safety and health for the mining operations of 
Hanson Aggregates in Kentucky and surrounding States--both surface and 
underground mining. I come before you today in my role as Administrator 
of the Mining Practice Specialty of the American Society of Safety 
Engineers (ASSE). ASSE represents more than 30,000 safety, health and 
environmental (SH+E) professionals dedicated to seeing that every 
worker has the best possible opportunity to go home healthy and safe 
from their jobs each day. The society is the largest professional 
safety organization and, founded in 1911, has been in existence the 
longest.
    ASSE's Mining Practice Specialty--one of 13 ASSE practice 
specialties covering the spectrum of safety and health professional 
interests--currently has more than 350 members. My colleague members 
are men and women on the front lines of managing mine safety and health 
in coal and metal/nonmetal mines, surface and underground, or providing 
training, auditing and consultation services to the mining industry.
    We commend the committee for looking critically at mine safety and 
health issues today, both in terms of what can be done to prevent 
another disaster such as the Sago mine catastrophe 2 months ago and 
also to discern what can be done to improve the efficiency and 
effectiveness of the Mine Safety and Health Administration (MSHA). ASSE 
shares your concern. We have established a task force to review mining 
emergency preparedness and communications in response to the recent 
tragedies. Through ASSE's alliance with MSHA as well as our partnership 
with the National Institute of Occupational Safety and Health (NIOSH), 
we intend to help encourage an effective, proactive Federal response to 
the concern many share over this Nation's commitment to mine safety and 
health.
    For today's purposes, ASSE reviewed the two pending Mine Act reform 
measures, S. 2231, introduced by Senator Robert Byrd on February 1, 
2006, and S. 2308, introduced by Senator Arlen Specter on February 16, 
2006. Our comments here are initial reactions largely to the ideas 
contained in these bills. Following the work of ASSE's task force 
examining these same issues, ASSE will be able to provide the committee 
with a more elaborate response, which we look forward to doing.
    As a preliminary matter, it is important to recognize that, while 
the loss of life in the Sago disaster was unacceptable to mine safety 
and health professionals dedicated to doing everything we can to make 
mines safe and healthy places to work, it is far from indicative of the 
overall state of mine safety and health in the United States. To the 
contrary, mine safety has drastically improved over recent decades, and 
last year marked the lowest number of fatalities in U.S. history, 
capping a general trend of declining fatalities, injuries and 
illnesses. The successes should not be overlooked based on this 
failure.
    These strides were achieved, first, through tough and effective 
enforcement of this Nation's mining laws. It should not be overlooked, 
however, the efforts of Government, State and private sector 
initiatives, often working in cooperation, also played a necessary 
role. Because of the commitment from each of these sectors, technology 
is getting better and better at engineering hazards out of mining and 
removing miners from exposure to hazards. We are now seeing greater 
computerization of mining methods having a substantial impact on our 
ability to manage the safety and health risks within mines, with a 
substantial promise that even better protections can be achieved.
         duplicating responsibility for technology advancement
    Many of the technological advances we already have in place were 
developed through the efforts of dedicated researchers at the National 
Institute for Occupational Safety and Health (NIOSH), which houses the 
former Bureau of Mines. As we indicated in a recent letter to you and 
Senator Kennedy, ASSE was extremely disappointed that a NIOSH 
representative was not permitted by his Agency--the Department of 
Health and Human Services--to participate in last month's roundtable on 
mine safety technology. NIOSH's Mine Program is already positioned to 
conduct effective intramural research, and, by expanding its already 
proactive outreach to academia and private sector resources, to support 
extramural research and develop pilot programs that can test the 
viability of new mine safety technology in real-world situations.
    With all due respect to Senator Byrd and his fully understandable 
effort to examine new approaches for protecting miners--especially 
since the unacceptable price of Sago tragedy is being paid by citizens 
of his own State--ASSE cannot support legislative proposals, as 
included in S. 2231, that would create an Office of Technology within 
MSHA or in any other way diffuse this Nation's already limited mining 
safety and health research. Any duplication of NIOSH's technology 
transfer and research infrastructure would only spread resources thin 
and most likely add a needless layer of bureaucracy that would delay 
the development and implementation of new measures to protect miners.
    Significantly, Congress originally tasked NIOSH with performing the 
research to inform MSHA regulatory decisions in the 1977 Mine Act, in 
which section 501 directs NIOSH to ``conduct such studies, research, 
experiments, and demonstrations'' necessary, among other things to 
improve working conditions and practices in coal or other mines . . . 
to prevent accidents and occupational diseases originating in the coal 
or other mining industry . . . to develop new or improved methods of 
recovering persons in coal or other mines after an accident . . . and 
to develop new or improved means and methods of communication from the 
surface to the underground area of a coal or other mine.
    The same legislation created MSHA, and the rationale for assigning 
these responsibilities to NIOSH rather than MSHA was to keep research 
independent and distinct from regulatory and enforcement influences. 
The reason for keeping these functions separate still exists. ASSE 
could not support creation of a duplicative effort within MSHA. MSHA 
should have every resource necessary to focus on enforcement and 
reaching out, not only to NIOSH, but the private sector as well to help 
ensure that its methods and the expertise of its staff keeps current 
with technological advances and incorporates ongoing change into its 
culture. A new commitment to outreach, not a new department, is not 
needed for that to occur.
    If any change is needed, it is the current administration's 
commitment to NIOSH. For Fiscal Year 2007, $5 million has been proposed 
to be taken from NIOSH, this after many of its essential capabilities 
were taken away in the name of Centers for Disease Control and 
Prevention reorganization. We urge the Senate to reject this reduction 
in commitment and increase NIOSH's resources so that NIOSH can better 
fulfill its mandate to conduct mine safety and health research, develop 
technology and provide training support materials.
                         mine safety technology
    With respect to mine safety technology, the Sago disaster has 
pointed out that gaps exist in protections for underground miners--both 
coal and metal/nonmetal. Although many mines, such as the ones that I 
oversee, go beyond compliance with MSHA's mandatory standards, others 
unfortunately adhere to the bare minimum standards, with the result 
that lives may be lost due to inadequate respiratory protection and 
technologically obsolete communication systems.
    As indicated at the February 15 Subcommittee on Employment and 
Workplace Safety hearing, the market makes readily available products 
that function in the same manner as the 1 hour Self-Contained Self-
Rescuers (SCSRs) but provide expanded protection from toxic gases that 
can be created in mine fires or present in gassy mines even without an 
accident. Promising technologies also exist for locating or 
communicating with miners underground, such as the text messaging 
technology currently being tested in approximately 140 mines throughout 
the world. We agree that redundant communications systems that can 
demonstrate effectiveness make a great deal of sense.
    However, when considering what is and may not be feasible, focus 
must be placed on post-incident functionality when electrical systems 
may not be working. We urge both NIOSH and MSHA to investigate this 
issue thoroughly and to explore the utility of technologies developed 
by the U.S. Department of Defense, the National Aeronautics and Space 
Agency, and the fire service industries post-911 for communication with 
firefighters in emergencies. Although we understand that there may be 
real promise in current communication advances, the transfer of such 
technology to the underground mining industry is very much in question. 
Neither Congress nor MSHA should rush to force solutions by assuming 
the viability of these products before in-mine tests and research can 
be conducted and such products become commercially available. At this 
point in time, there simply is no one-size-fits-all solution to 
underground mine communication, respiratory protection, or mine rescue, 
as much as we all would wish it.
    Although, as Senator Specter suggests, some mines might easily 
adopt oxygen stations that provide a 4-day supply of clean air for all 
mines in each working area of a mine, this might not be readily 
accomplished in some smaller mines such as those in the anthracite 
sector, or those with low passageways. There may, in the alternative, 
be other ways of achieving the goal more feasibly in such mines. Until 
the information is available, such regulations should not be 
congressionally mandated. While the Mine Act has historically been 
considered a ``technology forcing'' statute, there are realistic limits 
as to what can be achieved. To be truly effective, any action meant to 
improve safety--whether mines or any workplace--through technology must 
fully consider whether appropriate ``off the shelf'' technology is 
readily available before mandates are put in place.
                       incentives for technology
    Congress must also be aware that, in the metal/nonmetal sector, 
approximately 98 percent of underground mines are classified as ``small 
business entities'' under U.S. Small Business Administration criteria. 
Many coal mines especially are small business enterprises with as few 
as five employees.
    ASSE hopes the committee will consider this reality and look for 
creative solutions, such as establishing new tax incentives, giving 
operators some credit against citation penalties to encourage them to 
adopt new technology quickly, or making establishing small business 
loans for the purchase of mine rescue, communications and personal 
protective equipment. Such measures should help expedite the necessary 
protection of miners without unnecessarily diminishing the economic 
viability of these mining businesses, many of which are located in 
economically deprived areas of our Nation.
                          effective penalties
    Both legislative proposals offered by Senators Specter and Byrd 
would increase significantly penalties for violations of MSHA 
standards. ASSE fully supports strong enforcement and the role 
meaningful penalties can play in focusing an employer's attention 
toward safety and health of its workers.
    From the popular reaction to the Sago tragedy, it is apparent that 
many outside the mining industry may not be aware that MSHA already has 
more enforcement power than any other Federal Agency, including: 
mandatory quarterly inspections of all underground mines; warrantless 
search authority and automatic right of entry under Section 103(a) of 
the Mine Act; strict liability enforcement powers; mandatory civil 
penalties for all citations; and civil penalties that have been 
increased from $10,000 to $60,000 in the past decade. Under Section 
110(c) of the Mine Act, individual agents of management can be 
personally fined up to $60,000 for actions or omissions that constitute 
aggravated conduct--a power lacking in the Occupational Safety and 
Health Act covering every other industry. Moreover, the current Mine 
Act has felony criminal enforcement provisions of up to 5 years of 
incarceration, and, unlike OSHA, no injuries need occur for MSHA to 
recommend criminal prosecution by the U.S. Department of Justice.
    However much we would like to think that increases in maximum 
penalties may be appropriate, in the day-to-day reality of the mining 
industry that I work in, the heightened penalty levels of $500,000 for 
high negligence violations (compared with OSHA's $70,000 maximum), the 
$10,000 minimum penalty for ``serious'' violations--especially when 
compared with OSHA's maximum of $7,000 for similar violations--and the 
other enhanced penalties and ``user fees'' suggested in S. 2308 and S. 
2231 could very well put the average, well-meaning mine out of business 
with a single penalty.
    Moreover, as drafted, the legislation offering these increases is 
often ambiguous. For example, ``habitual violators'' would be subject 
to a minimum penalty of $20,000 for ``significant and substantial'' 
citations. However, the legislation does not define ``habitual'' and 
includes no statute of limitations after which a repeated violation 
would no longer trigger this mandatory minimum. Because MSHA does not 
``group'' violations into a single citation as OSHA commonly does, it 
is not unusual for a mine to have multiple guarding or equipment 
violations in a single inspection. If each individual citation were 
assessed at $20,000 because these triggered the ``habitual'' provision, 
most mines could not withstand the penalty burden and continue to 
operate. This area must be more critically explored before any new 
categories of penalties are created.
                        unintended consequences
    We also want to caution the committee that some provisions of the 
proposed bills, though well intended, should be reconsidered following 
this hearing to ensure that unintended consequences do not result in 
everyone's understandable eagerness to prevent another Sago from 
occurring.
    For example, provisions that would deny the Federal Mine Safety and 
Health Review Commission (FMSHRC) authority to modify penalties, or 
requiring abatement action on all citations within 24 hours--have 
critical due process implications that cannot be overlooked by this 
committee if it is to move forward an effective program of reform.
    It also appears that, while the technology provisions of the 
proposed legislation largely concentrate on underground coal mines, the 
penalty provisions would cover all categories of mines, including 
surface aggregate operations that do not involve the same level of 
hazards as do underground operations. Such action appears unwarranted 
at this time. In particular, section 7 of Sen. Byrd's bill incorporates 
the definition of ``coal mine'' from the 1977 act, which expands 
coverage to surface and underground metal/nonmetal mines and to all 
independent contractors performing any work at any mine, surface or 
underground. Congress' intent with respect to the proposed Senate 
legislation must be more clearly articulated to prevent inadvertent 
expansion of the provisions to those outside the underground coal 
mining sector.
    Other suggested provisions, such as a $100,000 minimum fine for 
failure to notify MSHA of an accident within 15 minutes, are simply 
unachievable and may result in unintended consequences in individual 
situations. In many cases, especially in small mines with few workers, 
those who would make the call to MSHA must also be involved in 
immediate rescue activities longer than this time period would allow. 
Current provisions State ``immediately,'' which the FMSHRC has 
interpreted this to mean ``2 hours or less.'' Moreover, there are 11 
categories of accidents where this 15-minute notification requirement 
would apply, as set forth in 30 CFR 50.2(h), so it could very well not 
be apparent within 15 minutes that an incident such as a mine fire or a 
nonfatal injury falls into the immediately-reportable category. 
Clearly, we all like the response to mine tragedies to be immediate, 
but 15 minutes is probably less than can be mandated effectively, 
especially given the enormity of fine for failure without regard to the 
impact of the accident. We urge the committee to work with MSHA, NIOSH 
and stakeholders to reexamine this provision in order to determine a 
more meaningful way to ensure emergency response.
    With regard to mine rescue teams, Sen. Byrd's legislation would 
direct all coal mines to have rescue teams consisting of their own 
employees. If this is to be achieved, the consequences of either closed 
mines or a market for coal that bears this cost must be understood. 
Many small mines have too few workers to field a team. This is why MSHA 
has for many years permitted mines to join together to form area rescue 
teams of highly trained personnel. This practice has been demonstrated 
to work effectively over many years and can remain as an effective 
option.
                               conclusion
    ASSE commends the committee for its consideration of these various 
issues as well as Senators Specter and Byrd for their efforts in 
defining specific solutions to issues with which we all struggle. This 
leadership is needed if we are to move forward and help prevent another 
Sago tragedy. However, we urge the committee not simply to assume a 
lack of MSHA enforcement powers or too weak penalties are the root 
cause of the failures we have seen. Along with an examination of 
penalties and more stringent requirements, the committee must consider 
other factors that may not be readily apparent.
    It could be that the most effective solution is that MSHA make 
better, smarter use of its current powers and target enforcement 
resources more directly at the proven ``bad actors'' rather than being 
required to inspect all mines in exactly the same way, regardless of 
their compliance history or safety and health performance. It may be 
appropriate, if the Mine Act is reopened, to provide the Agency with 
more flexibility in terms of these mandatory inspections so it can 
deploy its inspectors where they are most needed. More effective and 
not merely more severe enforcement may very well be the answer we all 
seek. Again, we urge the committee to work with MSHA, NIOSH and 
stakeholders, both within industry and organizations like ASSE to help 
make these determinations.
    ASSE thanks the committee for including us in your deliberations. 
We stand prepared to provide further technical assistance through our 
Mining Practice Specialty as the committee continues to explore these 
critical mine safety and health issues. We also pledge our support in 
working with MSHA and NIOSH as they look for new methodologies to 
protect miners and to improve existing standards, programs and outreach 
efforts.

    The Chairman. Mr. Roberts.
    Mr. Roberts. Thank you, Mr. Chairman for allowing me to 
speak today and thank you for your interest in coal miners 
health and safety. I have had an opportunity to be with you 
several times, and I thank you for this hearing; and to my two 
Senators from West Virginia, I want to thank them for the job 
that they are not only doing today, but they have done their 
entire careers, standing up and fighting for coal miners' 
health safety. We don't have two better friends in the world 
than the two of you, and thank you.
    I come today, and it has been mentioned that we have coal 
miners throughout the United States of America with us, which 
we bring here to this hearing. Not only do we have coal miners 
from across the United States here, we have also brought with 
us members of the mine rescue teams who risked their own 
personal safety to go in a coal mine in Sago and Alma both to 
try to rescue people they did not know. These mines were both 
nonunion, but that makes absolutely no difference to the United 
Mine Workers or to the rescue team members, and this country 
should, indeed, be very proud of these individuals, as we are.
    We also come today, Mr. Chairman, with the families from 
Sago and Alma and Jim Walter No. 5. We are here speaking with 
one clear and distinct voice. There is no division between the 
families at Sago, the families at Alma, the families at Jim 
Walter No. 5, the United Mine Workers, or the mine rescue 
teams. What I say, we believe everyone concurs with.
    We had a meeting this morning. It was interesting to see 
that the fact that the mine rescue team members that tried to 
save these loved ones for the first time met these families and 
had a conversation. That is something to behold; but we must 
say, Mr. Chairman, unlike some others who have testified, there 
is a feeling amongst all of us that there has been a failure in 
our Government to protect the coal miners in the United States 
of America, and that case can be made by the following: Why 
isn't it a fact that every coal mine in the United States of 
America has additional supplies of oxygen available to them?
    Senator Byrd. Would you say that again, Mr. Roberts?
    Mr. Roberts. Why isn't it a fact, why isn't it a law, that 
every coal mine in the United States has oxygen today as we 
come together in this meeting to talk about this? How can 
anyone with a clear conscious even debate that subject matter, 
and the truth is that MSHA has the power, has the authority, 
and has had that for many years to require that, but that has 
not happened. Thirty-seven years ago, it was discussed about 
putting safety chambers in the coal mines. Thirty-seven years 
ago, Congress suggested MSHA take a look at that. That is as 
long as Moses was on the desert if we go through 3 more years, 
and there has been absolutely no action taken with that.
    We need two-way communications in these coal mines. It 
should be noted for the record, Mr. Chairman, MSHA has already 
approved two different devices to be carried by coal miners and 
we don't need to do any additional study and research. Those 
have been approved by MSHA. The only thing that coal miners in 
this country have between them and the outside is this: a wire 
that gets burnt into, blown into, or broken into in the event 
of a fall.
    Mr. Chairman, the law is very clear. Congress wrote a law 
in 1969 that says you cannot ventilate the face with belt air, 
but the Agency charged with protecting coal miners wrote a rule 
and said that was okay, that is okay to go ahead and do that, 
contrary, Mr. Chairman, to what Congress said. I ask as we look 
at MSHA today how can MSHA write a rule contrary to the written 
law that Congress passed, and I submit to you a bold statement 
here today, Mr. Chairman. The Alma miners would be alive today 
if that law had been enforced, because what happened there is 
the belt caught on fire, and remember there was a rule pending 
for nonflammable belt rubber that was done away with, and the 
law says you cannot pass air over belt rubber and send it to 
the face.
    The widow of Mr. Bragg is with us today, and she asks 
Congress today, she asks the Government today, tell us why that 
is. The mine rescue teams call out for you today to tell us why 
we do not have more mine rescue teams. What is going to happen 
here, Mr. Chairman, before long, we are going to lose all these 
mine rescue teams underground because there is not enough of 
them, and we have been aware of this. We have known this. It 
has been public knowledge since 1995, and, Mr. Chairman, we 
need to act.
    In closing and in my opening statement, we represent a 
number of these families at Sago, and one of the families we 
represent is Mr. Hamner, and I would like to for the sake of 
all of us understanding the severity of what we are talking 
about here, is just read the note that he left for all of us. 
He wrote it to his wife. He wrote it to his daughter, and I 
heard him read this, and I must say, Mr. Chairman, it is the 
most moving thing I have ever heard. And by the way, this was 
written 8 hours and 40 minutes after the explosion. These 
miners were all alive, and I want you to think about this. They 
were moving around, trying to figure out how do we get out of 
here, what do we do, but they had not enough oxygen. They 
didn't have two-way communications to know what to do.
    Mr. Hamner says: ``Hi, Deb and Sara.'' Deb is his wife. 
Sara is his daughter. ``I am still okay. It is 2:40 p.m. I 
don't know what is going on between here and the outside. We 
don't hear any attempts at drilling or rescue. The section is 
full of smoke and fumes. So we can't escape. We are all alive 
at this time. I just want you and Sara to know I love you and 
always have. Be strong, and I hope no one else has to show you 
this note. I'm in no pain, but don't know how long the air will 
last. Tell everyone I'm thinking of them, especially Billy, 
Marian, Will, Bill, and Peg. I love you all. Junior Hamner.''
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    [The prepared statement of Mr. Roberts follows:]
                 Prepared Statement of Cecil E. Roberts
    Thank you for allowing me this opportunity to appear before your 
committee. As president of the United Mine Workers of America 
(``UMWA''), I represent the union that, for 116 years, has been an 
unwavering advocate for miners' health and safety.
    Miners' health and safety has been in the headlines for much of 
2006, but we all know that is because far too many coal miners have 
perished. Nearly as many miners died in the first 6 weeks of 2006 as 
perished in all of 2005. In the 12 month period from February 16, 2005 
to February 17, 2006, 43 coal miners died in coal mining accidents.
    With me today are people the UMWA invited to attend this hearing: 
active coal miners from the coal-mining States of Alabama, West 
Virginia, Kentucky, Pennsylvania, Ohio, Illinois, and Virginia, as well 
as UMWA members who belong to the mine rescue teams that participated 
in the rescue efforts at the Sago and Alma mines. They join me in 
urging Congress to ensure that MSHA aggressively protects miners' 
health and safety, so that they can do their jobs safely and come home 
to their families each and every day. I am also accompanied by widows, 
a fiance, brothers and sisters, and children of brave miners killed in 
recent mining tragedies in West Virginia and Alabama. They want to 
ensure that their loved ones did not die in vain, so the sadness and 
loss they are experiencing will not confront other mining families.
    We are here today to discuss and review the performance of the Mine 
Safety and Health Administration (``MSHA''). First let me say that MSHA 
is made up of many dedicated civil servants: health and safety 
professionals whose efforts we deeply appreciate. However, MSHA's top 
policymakers have not been doing their job protecting and enhancing 
miners' health and safety. This may be because so many of them were 
mine management executives before coming to MSHA; at MSHA they spend 
too much time trying to appease their friends, and too little time 
looking out for miners' interests.
    Specifically, MSHA has failed in heeding Congress' express purpose 
when it enacted the Mine Act and explicitly directed the Secretary of 
Labor ``to develop and promulgate improved mandatory health or safety 
standards to protect the health and safety of the Nation's coal or 
other miners.'' 30 U.S.C.  801(g)(1). For those of us dealing with 
miners' health and safety on a daily basis, it is apparent that MSHA 
has neglected this essential purpose of Congress. The entire country 
has now witnessed the terrible price so many families have paid for 
MSHA's inaction and misdirected efforts. It is MSHA's inaction and 
chronically misdirected efforts that are the focus of my remarks today.
    It is also important for you to know that coal mining is at record 
levels in terms of production, with far fewer miners needed to extract 
the mineral. However, as new mining methods that enhance productivity 
were being developed, MSHA has not met its challenge: not only has MSHA 
circumvented some of the most basic health and safety guidelines that 
are spelled out in the Mine Act, but the Agency has not promulgated 
rules to keep pace with record productivity and the new mining 
techniques.
    I will first review how current mine safety laws came into being; 
and then describe a number of ways in which MSHA has failed to protect 
miners' health and safety: it is not developing enough new mandatory 
standards to protect miners' health and safety, and through ``policy'' 
it is allowing operators to pursue practices that compromise--rather 
than enhance--miners' health and safety. We hope that in exercising 
your oversight responsibilities, this committee can help redirect MSHA 
so it will engage in the principal activities Congress mandated when it 
crafted the Mine Act.
                           dangers of mining
    It was shortly after 78 deaths at Farmington, West Virginia in 1968 
that Congress enacted the Coal Act in 1969; the legislation was then 
expanded to other mining industries and renamed the Mine Act in 1977. 
From its inception, Congress appreciated that the Enforcement Agency 
must be independent of the operators it regulates: at first Congress 
assigned the task to the Bureau of Mines, and then it was moved to a 
newly-created Mine Safety and Health Administration within the 
Department of Labor.
    Since the Coal Act was passed, fatalities in coal mining have 
decreased dramatically: while over 300 miners died in 1968, the year 
before the Coal Act was enacted, fewer than 100 miners have perished in 
any single year over the last 20 years. Yet, mining still remains the 
second-most dangerous industry in this country.
    Aside from the very dramatic accidents that captured the Nation's 
attention in January 2006, thousands of miners remain disabled and 
dying from black lung disease, while many other miners die in mining 
accidents every year. Most typical accidents claim the lives of one or 
two miners at a time, from roof falls, equipment failures, electrical 
problems, and other accidents. In just the first 6 weeks of 2006, in 
addition to the 12 miners who perished at the Sago mine and the two who 
died in the January 19 mine fire at Massey's Aracoma Alma No. 1 mine, 
seven other coal miners also died, one at a time.
    There are also countless near-misses that occur on a regular basis. 
Since August 2000, MSHA records show there were well over 400 mine 
fires, ignitions, explosions and inundations that far too-easily could 
have developed into significant disasters and fatalities. Many other 
incidents likely went unreported.
                           mine act purposes
    In passing the Mine Act, Congress set forth four purposes. The 
first was to establish a long list of very specific ``interim mandatory 
health and safety standards,'' as well as to direct the Secretary of 
Labor ``to develop and promulgate improved mandatory health or safety 
standards to protect the health and safety of miners.'' The other 
purposes Congress established were (a) for the Secretary to require 
operators to comply with such standards; (b) for MSHA to cooperate with 
and assist States with their own mine health and safety programs; and 
(c) to improve and expand ``research and development and programs aimed 
at preventing coal or other mine accidents and occupationally caused 
diseases in the industry.'' 30 U.S.C.  801(g). As we will show, MSHA 
has neglected the priorities Congress established; this neglect has 
been chronic.
            where mine act protections are found and evaded
    Mine safety protections may be found in the act itself, in 
regulations MSHA has promulgated, through modifications MSHA may permit 
on a case-by-case basis, and through MSHA's policies. The issue of 
``belt air'' \1\ provides an example of both how health and safety 
protections come into play, and how MSHA has allowed these protections 
to be evaded.
---------------------------------------------------------------------------
    \1\ To ventilate sections of the mine where miners work requires 
the operator to course fresh air into the mine. Under the Mine Act, 
Congress specified that intake and return airways were to be separated 
from the belts that transport coal out of a mine. 30 U.S.C.  863(y).
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    ``Belt air'' refers to air that is directed into the underground 
coal mine, and which passes through the same tunnels in which conveyor 
belts transport coal out of the mine. The tunnels, known as 
``entries,'' are costly and time consuming to develop, so if an 
operator is allowed to use belt air it can avoid building a separate 
entry for the fresh air. When belt air is used to ventilate the active 
working sections, large exhaust fans pull fresh air from outside the 
mine into and along the conveyor belt, and the air passes over and 
around the freshly-cut coal on the belt before the air can ventilate 
the inner areas of the mine where miners work. However, the belt entry 
has historically been the dirtiest and most fire-prone entry in the 
mine, and using belt air introduces a number of safety and health 
concerns, including (a) exposing miners to excessive coal dust on an 
on-going basis, and (b) enhancing hazards when fire breaks out along 
the conveyor belts, including carrying flames and deadly gases directly 
to the miners' work areas and to vital evacuation routes--dangers 
exacerbated by both the high velocity of the air fanned through the 
underground tunnels, and by the immediate availability of a fuel 
source, fresh coal.
    First, there is the Mine Act itself. In writing the Coal Act and 
the Mine Act, Congress incorporated a long list of very specific 
mandatory standards. For example, at 30 U.S.C.  863(y), Congress 
mandated that, for any mines developed after December 31, 1969, air 
that passes through belt entries ``shall not be used to ventilate 
active working places.''
    Congress also gave MSHA the authority to ``develop, promulgate and 
revise as may be appropriate, improved mandatory health or safety 
standards for the protection of life and prevention of injuries in coal 
or other mines,'' consistent with rulemaking procedures set forth in 
the Administrative Procedures Act. 30 U.S.C.  811(a). And although the 
UMWA vigorously opposed the rule, it was pursuant to its authority to 
promulgate ``improved health or safety standards'' that MSHA issued a 
new belt air rule in April, 2004. 69 Fed. Reg. 17480. MSHA's belt air 
rule superceded the prohibition Congress had written into law.
    Petitions for Modification constitute a third avenue for 
establishing the health and safety standards applicable at a mine. In 
particular, in Section 101(c) of the Mine Act, Congress authorized the 
Secretary to ``modify the application of and mandatory safety 
standard'' if she would determine ``that an alternative method of 
achieving the same result . . . exists which will at all times 
guarantee no less than the same measure of protection afforded the 
miners . . . or that the application of such standard . . . will result 
in a diminution of safety to the miners . . .'' 30 U.S.C.  811(c).
    Typically, petitions for modification are filed by operators when 
they wish to avoid some mandatory standard safety. To obtain an 
exemption, the operator submits its proposed alternative, with an 
explanation about how its proposal is intended to provide miners' with 
comparable protection.
    Over a period of many years, MSHA allowed a large number of 
operators to use belt air despite the Mine Act prohibition against it 
by use of the petitions for modifications procedure. We believe MSHA 
approved petitions for modification to allow belt air (albeit 
conditioned on the installation of equipment intended to monitor the 
mine atmosphere), because doing so enabled operators to develop fewer 
entries and thereby increase their production. In fact, when MSHA 
proposed its belt air rule in 2003, the Agency noted that it had 
already approved about 90 petitions allowing operators the right to use 
belt air! 68 Fed. Reg. 3937. For those operations that had such 
modifications in effect, MSHA had already effectively superceded the 
prohibition of belt air that Congress had written; when MSHA's final 
belt air rule took effect, it eliminated that protection for all other 
mines, too.
    The final basis for determining what standards apply comes from 
MSHA ``policies.'' MSHA maintains a Program Policy Manual in which the 
Agency explains how it interprets and applies various aspects of the 
Mine Act and regulations. Using the belt air example, before the belt 
air rule was finalized in 2004, the Policy Manual explained what 
exceptions a district manager could approve (for mines opened on or 
before March 30, 1970), and directed operators of later-opened mines to 
submit a request under the petition for modification procedures.
            the problem of too few rules, and the wrong ones
    Since the Mine Act was enacted, MSHA has promulgated relatively few 
rules. Compounding the problem of little rulemaking is that some--like 
the belt airrule that was finalized in April, 2004--not only removed 
specific protections Congress had required, but they have been directed 
at increasing productivity instead of improving miners' health and 
safety. Yet, Congress never authorized MSHA to spend taxpayer money to 
improve productivity. In promulgating regulations, MSHA is only 
supposed to issue ``improved . . . standards to protect the health and 
safety of miners.'' When it proposed the belt air rule in January 2003, 
MSHA did not even claim it would improve miners' safety. On that issue 
MSHA simply stated that the new rule would ``maintain the level of 
safety in underground mines while implementing advances in mining 
technology.'' Considering how much time and effort is consumed in most 
rulemaking efforts, \2\ to promulgate a rule that does not advance 
miners' health and safety constitutes misdirected, wasted, energy.
---------------------------------------------------------------------------
    \2\ When MSHA proposed its ventilation rule in January, 1988, the 
Agency included a provision that would have allowed the use of belt air 
so long as carbon monoxide sensors would be installed in the belt 
entry. Because this particular aspect of MSHA's proposed ventilation 
rule was met with ``widely divergent views,'' 68 Fed. reg. 3937, MSHA 
withdrew the belt air language from the ventilation rule that it 
finalized in 1992. ID. Nevertheless, MSHA decided to continue studying 
belt air as an independent matter to determine ``the conditions under 
which air in the belt entry could be safely used in the face areas of 
underground coal mines.'' Id. In pursuing this effort, MSHA did not 
suggest that allowing belt air would improve miners' health and safety.
---------------------------------------------------------------------------
    There are too many compelling issues that remain unregulated, and 
which jeopardize miners' safety every day, for MSHA to pursue rules 
that do not materially contribute to miners' health and safety. As the 
recent tragedies at the Sago and Alma No. 1 coal mines demonstrate, 
there is a serious void in the regulatory framework for underground 
miners confronting a mine emergency. While there is a lot yet to be 
determined about these accidents, the note that Sago miner George 
Junior Hamner wrote to his wife and daughter (copy attached) reveals 
that most miners survived the initial explosion at the Sago Mine. It 
also demonstrates that those miners had no information about where to 
find fresh air or about how they might have been able to exit the mine. 
In fact, miners survived for many hours, but in the end they had 
inadequate access to oxygen to survive the toxic mine atmosphere.
    Though Congress specifically suggested that the Secretary consider 
promulgating a rule requiring rescue chambers for miners to find 
shelter in an emergency, we are unaware of any substantial efforts MSHA 
has made to pursue this option since the act was written. Nevertheless, 
earlier this year just such a chamber was successfully used by, and 
saved the lives of, miners at a potash mine in Western Canada when they 
confronted a mine emergency. If they could rely on a rescue chamber to 
survive, why weren't the miners at Sago and Alma afforded that same 
opportunity?
    At the Alma mine, miners were killed after a mine fire erupted on 
the belt that was used to ventilate the mine. If belt air had not been 
permitted, and if the belts were not flammable, or if the miners had 
more oxygen, or if they had lifelines to guide them out of the smoke-
filled mine, perhaps we would have had a different outcome. Delorice 
Bragg, the widow of Don Bragg who was killed at the Alma mine fire in 
January, is here with me today to ask why unsafe practices were allowed 
to continue, and why well-known emergency safeguards were not afforded 
to her husband.
    These deficiencies in miners' health and safety are all ones MSHA 
has known about for many, many years. Most of them have been known 
since the Coal Act was passed in 1968, over 37 years ago. In fact, in 
1968 rescuers could not locate all the miners killed in the Farmington 
disaster and 19 remain entombed in that mine. After the Pyro mine 
exploded, killing 10 miners in 1989, many of these same needs were 
identified. The problems of no communications, the inability to locate 
underground miners, and insufficient self-rescuers were all noted as 
problems that confronted miners, including the 13 who were killed at 
the Jim Walters No. 5 mine on September 23, 2001. The need for these 
improvements has been talked about after too many tragedies. Long ago, 
it was time to stop talking and time to take action to implement 
changes that would help miners survive emergencies. We do not have to 
wait for 100 percent guarantees; we need to enhance a miner's chance of 
escaping an emergency, or surviving if trapped.
    It is interesting that those advocating the status quo will say 
that some of the protections we seek, like supplemental oxygen, and 
better communications, are not worth pursuing because they may be 
damaged in the event of an explosion or other emergency. However, if 
the miners survive that initial event, it is likely they will be able 
to escape or survive if they are provided additional resources. At the 
Sago Mine, miners survived for many hours and may well have been able 
to escape if they had been directed out; or they might have survived if 
they had supplemental oxygen stored nearby. At the Jim Walters mine, 
those killed had inadequate information largely because the primary 
method of communication was interrupted; if secondary communications 
(i.e., supplemental wireless devices) had been available, it is 
possible more would have survived.
    Active miners and family members of those killed at the Jim Walters 
mine testified about the need for better communications, the need to be 
able to locate miners underground, and the need for more oxygen 
supplies stored underground at hearings MSHA conducted in February, 
2003. Two of the miners who testified at MSHA's hearing in Lexington KY 
are with me today, James Blankenship and Dwight Cagle, both from 
Alabama. Transcripts from those hearings are available through MSHA's 
web page. What has resulted from those suggestions of 3 years ago? 
Nothing. Sadly, it came as no surprise to those of us interested in 
miners' health and safety when these very same problems and 
deficiencies developed at the Sago and Alma No. 1 mines; MSHA had not 
advanced any such protections in the intervening years.
    In fact, MSHA has been going backwards in providing some of these 
protections. Assistant Secretary for MSHA David Lauriski scrapped 17 
proposed rules on topics MSHA had identified as needing attention. A 
list of those withdrawn rules is attached. Among them were some of the 
protections that might have helped the miners who perished at Sago and 
Alma. Offering no explanation for its decision, on September 24, 2001 
MSHA withdrew a rule that would have imposed new procedures and 
requirements for flame-resistant conveyor belts, even though the rule 
was then close to completion. On that same day, citing ``resource 
constraints and changing safety and health regulatory priorities,'' 
MSHA withdrew its ``pre-rule'' concerning self-rescuers that had been 
among the Agency's rulemaking agenda since 1999.\3\ These rules were 
actually withdrawn the first day after the Jim Walters' No. 5 accident 
killed 13 miners.
---------------------------------------------------------------------------
    \3\ Througout the industry there have been problems with miners not 
being able to properly don the self-rescuer units in emergency 
situations. Moreover, without a rule addressing self-rescuers, 
technological advances of these breathing devices has been stymied. In 
the legislative history of the Mine Act, Congress indicated that mining 
regulations should be technology-driving, to maximize miners' 
protections. We had hoped that with the promulgation of a new rule 
addressing self-rescuers, the existing problems would be addressed, and 
technological advances encouraged. The UMWA is convinced that such a 
rule would have been the catalyst for a new generation of self-rescuer 
devices. While operators are willing to invest in new technology when 
it increases production, it appears that they are not so willing to 
invest in miners' health and safety.
---------------------------------------------------------------------------
    We note that reports of the recent coal mine disaster in Mexico 
indicated that miners had access to at least 6 hours of oxygen, and 
there were additional units available underground. If so, their oxygen 
resources far exceeded what must be provided to miners in this country.
    One year later, MSHA withdrew a pre-rule that would have addressed 
problems related to diminishing mine rescue capabilities.\4\ In the 
room with me this morning are a number of brave UMWA members who 
participated in the Sago and Alma rescue efforts. I want to publically 
thank them for their dedication and unselfishness in answering such 
emergency calls. Not once did these UMWA members hesitate when they 
were called in January, even though the miners at risk at Sago and Alma 
were not at union operations. These UMWA rescue team members are here 
today to let you know that they are concerned about the state of the 
mine rescue system, about the need for rules to compel the expansion of 
mine rescue capabilities, and the importance of having teams at each 
and every mine regardless of the mine size or location.
---------------------------------------------------------------------------
    \4\ It took 3 to 5 hours for the first rescue teams to arrive at 
Sago. That mine does not have its own rescue teams, even though MSHA 
regulations require mines to ``establish at least two mine rescue teams 
which are available at all times when miners are underground, or . . . 
make an arrangement for mine rescue services which assures that at 
least two mine rescue teams are available at all times when miners are 
underground.'' 30 C.F.R. 49.2. The regulation includes an exception 
for small and remote mines, but does not apply to the Sago mine. That 
same regulation specifies that teams ``shall be considered available 
where teams are capable of presenting themselves at the mine sites 
within a reasonable time after notification.'' Given that it took 3 to 
5 hours for the first mine rescue teams to arrive at Sago, it is 
apparent that the current system is not acceptable.
---------------------------------------------------------------------------
    The UMWA submits that every underground coal mine should have mine 
rescue capabilities onsite. These team members should be employees at 
the facility who would be acutely familiar with the mine. These 
individuals would not only be best able to carry out many of the duties 
required in these situations, but would also be uniquely qualified to 
brief additional off-site teams that may be necessary to complete the 
rescue. For even small and remote mines, MSHA should require mine 
rescue teams to be ready when disasters strike. No trapped miners 
should ever again have to wait 3 to 5 hours for rescue efforts to 
begin.
    Instead of promulgating a rule that would improve rescue teams' 
availability and capabilities, MSHA eliminated further work on rescue 
teams regulations. Meanwhile, it permits operators to expand on the 
ill-advised practice of contracting out such work. Withdrawing the 
proposed rule effectively eliminated any meaningful improvement in 
comprehensive mine rescue activity, but it also afforded some mine 
operators the opportunity to disband teams so they could increase their 
profits.
    A number of other rules at various stages of rulemaking were also 
withdrawn under the current administration. Some of the most compelling 
concern air quality, miners' exposure to airborne contaminants, and 
coal dust. The existing regulations utilize the same exposure limits 
that were in place when the Mine Act was promulgated in 1977, and they 
are widely-recognized (by MSHA and others) as being outdated and 
offering inadequate protection to miners' health. Recognizing that the 
permissible exposure limits (``PEL''s) allowed under existing 
regulations expose miners to unsafe levels of contaminants in the 
underground environment, MSHA had planned to update them. However, it 
withdrew the proposed rule in September 2002.
    Another proposed rule would have enacted recommendations emanating 
from the Secretary's 1996 Advisory Committee on the Elimination of 
Pneumoconiosis Among Coal Workers. This rule would have decreased the 
amount of respirable coal dust, in particular, to which coal miners 
could be exposed. Reducing the allowable respirable dust exposures 
would both diminish miners' likelihood of contracting black lung 
disease and it would also reduce the amount of explosive coal dust in 
the mine environment. This matter was in the pre-rule stage when it was 
withdrawn in September 2004. Unfortunately, the only efforts regarding 
coal dust that MSHA made under former Assistant Secretary Lauriski was 
a proposal that would have allowed respirable dust levels to increase 
by four fold. That proposal was met by a public outcry, including 
opposition from the halls of Congress, and Mr. Lauriski ultimately 
withdrew it.
    In September 2001, MSHA also withdrew a proposed rule that would 
have required the monitoring of respirable dust at all times. MSHA also 
stopped any plans to increase the required training and retraining of 
miners, even though the Agency identified this need back in 1998, and 
the UMWA has consistently asked for such increases out of a concern 
that current requirements are inadequate.
    MSHA dropped rulemaking efforts the Agency began in January 2001 to 
establish uniform procedures for its accident investigations; the 
failure to have such procedures has frustrated the designated miners' 
representatives from participating in the investigatory interviews that 
took place in connection with the Sago investigation. As it stands, 
MSHA itself, though it could be implicated in the accident, conducts 
the entire investigation. MSHA investigations also permit the operator 
to remain, even though the operator may be culpable for the accident.
    While the UMWA would normally be present for accident 
investigations that concern a unionized operation, at Sago which is 
nonunion, the Union has been excluded from interviews, even though a 
number of active miners as well as several family members of those 
killed have asked the UMWA to serve as their representative. A number 
of family members of miners killed in the Sago Mine disaster are with 
me here today: Amber Helms and Virginia Moore, the daughter and fiance 
of Terry Helms, Peggy Joyce Cohen, the daughter of Fred Ware, Jr., 
Cheryl Ann Meredith, the daughter of Jim Bennett, and John Groves, the 
brother of Jerry Groves. Some of these individuals specifically asked 
MSHA to give them access to the interviews, whether directly or through 
the UMWA as their designated representative. Though Richard Gates (the 
chief MSHA investigator for the Sago accident) promised them a response 
to their request before the interviews would begin again on February 
14, he did not respond to the families by then, and there has been no 
subsequent change to the interviews' procedure; those interviews have 
been completed, or nearly so.
    We believe MSHA withdrew these and other proposed rulemaking 
efforts because implementing them would have cost operators substantial 
capital-resources dedicated to miners' health and safety, instead of 
production.
                important, albeit belated, msha activity
    It is not for lack of knowledge that MSHA has failed to enact these 
needed protections. MSHA knows how to do better. The Agency itself has 
performed countless internal reviews and self-analyses; the Federal 
Government's watchdog Agency, the GAO, has given it direction, and the 
UMWA has communicated both formally and informally about how MSHA can 
and must do better.
    Indeed, on the heels of so many coal mining disasters commanding 
considerable national attention, MSHA recently began to initiate some 
potentially useful rulemaking that could improve a trapped miner's 
ability to survive a mine accident. Look to its press releases and you 
can see that by various notices the Agency issued in February, 2006, 
MSHA has indicated (1) it will aggressively assess and test 
communication and locating devices for underground mines, (2) it will 
pursue a new mine evacuation rule and will do so in an expedited, 
emergency fashion, (3) it will cosponsor an international mine safety 
symposium that will focus on new technologies and practices, and (4) it 
participated in a symposium on wireless technology. We support such 
efforts. We are cautiously optimistic that MSHA will quickly promulgate 
and implement an emergency rule that would require additional caches of 
self-rescuers and training on how miners transfer from one such unit to 
another, lifelines that could help miners evacuate, and clarification 
that an operator would need to notify MSHA of an emergency within 15 
minutes. We are also pleased to see that MSHA is now studying various 
emergency communications and tracking systems. It has invited 
manufacturers to submit information about devices that could function 
in gassy areas of underground mines.
    But we must ask, why did MSHA wait this long to pursue these 
issues? Why wasn't it looking for these solutions 10 and 20 (or more) 
years ago? Why was it expending precious resources hunting for ways 
that allow operators to use hazardous belt air to ventilate miners' 
working sections instead of protecting trapped miners? For an Agency 
with such a clear mandate as that which Congress wrote into the Mine 
Act--to protect and improve miners' health and safety, we ask you to 
consider how MSHA could have gotten so terribly misdirected.
          need for more aggressive and consistent enforcement
    MSHA has been neither aggressive nor consistent in enforcing the 
regulations that already exist. The Agency spends too much effort at 
``compliance assistance,'' and too little on enforcement.
    After the Pyro disaster in 1989, MSHA performed an internal review, 
and identified a host of Agency performance problems and deficiencies. 
More recently, the Agency performed an Internal Review of MSHA's 
actions during the period before the Jim Walters' mine explosions to 
``improve our inspection process to better protect our Nation's 
miners.'' The review again compared what MSHA actually did with what 
the Mine Act requires it to do. A number of problems were identified as 
deficiencies ``at both the district and headquarters level,'' 
deficiencies ``relevant to inspection procedures, level of enforcement, 
plan reviews, the Alternative Case Resolution Initiative and 
accountability programs, supervision and management, and headquarters 
oversight.'' The Government Accountability Office (``GAO'') also 
reviewed MSHA's performance after the Jim Walters' accident and noted 
in its report, issued in September 2003, that MSHA headquarters was not 
performing adequately in several key areas. Specifically, the GAO found 
MSHA failed to ensure violations cited to mine operators were corrected 
in a timely fashion. In fact, GAO found that of all the citations 
issued by the Agency, including those written as ``significant and 
substantial,'' despite inspector-imposed deadlines by which problems 
were to be abated, 48 percent of the time the Agency failed to follow-
up in a timely fashion to see if the operator fixed the hazards.
    Unfortunately the Agency's top managers have done little to move 
any of the necessary improvements from recommendation to reality. We 
hope that by having Congress add its voice now, along with the public's 
demand for its better performance on the heels of Sago, Alma, and the 
other tragic accidents, MSHA will finally refocus its attention.
    In addition to the subjects that are already underway for emergency 
rulemaking (more self-rescuers and training on transferring units, 
lifelines to help miners evacuate the mine, and the need to notify MSHA 
of an emergency within 15 minutes), and subjects that MSHA is also 
actively studying (emergency communications and tracking systems) all 
of which are long overdue for regulation--we urge MSHA to promulgate 
and implement rules that would materially contribute to miners' health 
and safety. Without intending to be comprehensive, the issues that we 
identify as constituting the top priorities for MSHA rulemaking 
include: reducing miners' exposure to respirable (coal) dust, updating 
permissible exposure limits for contaminants in the mine environment; 
undoing the unwise belt air rule, and requiring nonflammable belts, 
improved atmospheric monitoring systems, expanding the mine rescue team 
requirements and support, improving requirements for firefighting and 
evacuation plans, developing a nationwide emergency communications' 
system for mines, increasing training and retraining for miners, 
revising MSHA's approval and certification system for mining equipment, 
requiring secondary telephone lines in a separate entry, providing 
miners with a safer means of escape in the event of a mine fire, 
explosion, or inundation, updating and increasing fines for Mine Act 
violations, and developing uniform accident investigation procedures. 
MSHA should also determine whether the seals it tolerates are adequate 
(note that MSHA-approved seals failed at Alma although 30 U.S.C.  
303(z) of the Mine Act requires explosion-proof seals, and 30 C.F.R.  
75.334 and .335 provides that seals withstand 20 psi); the Agency also 
should study emergency safety chambers, as suggested in the Mine Act, 
at 30 U.S.C.  315.
    MSHA needs a larger budget for coal enforcement. Aside from its 
budget not keeping apace with inflation, instead of focusing on 
enforcement in recent years MSHA has redirected some of its inspectors' 
time toward ``compliance assistance.'' MSHA also needs to bolster its 
expertise, and prepare for the transition as many of its inspectors 
approach retirement.
    MSHA also has been remiss in seeking and enforcing meaningful fines 
and penalties for Mine Act violations. In February 2006 MSHA issued a 
press release to announce that it will seek to ``modernize'' the fine 
structure which has not been revisited in nearly 25 years, and ``needs 
updating to strengthen incentives for compliance.'' The Agency also 
needs to do a better job collecting the penalties it imposes. One 
fundamental problem is that MSHA compromises penalties far too often; 
whether at conferences held with the operator at MSHA's district 
offices or through negotiated settlements, MSHA collects very little in 
the way of the fines it assesses. This means that operators have little 
incentive to pay. There has developed a culture whereby operators view 
MSHA fines as little more than a nuisance, a minor cost of doing 
business. MSHA can and must do better to ensure that its fines coerce 
compliance with the Mine Act--that is what is most needed.
    Just last month, in February, 2006, MSHA initiated two injunctive 
actions against operators with large unpaid fines. This was the first 
time the Agency attempted such remedies. While we support these 
efforts, we also must ask, why has it taken this long for MSHA to put 
teeth into the enforcement side?
                               conclusion
    Coal remains a vital part of our Nation's economy and a primary 
component of our energy needs. Coal mining is again growing. More and 
more young people are entering the industry. It is still dangerous. But 
we can do a lot more than we are doing today to make it safer. Miners 
should not have to get sick, or to risk their lives just by going to 
work.
    I urge you to require MSHA to do in 2006 all that Congress demanded 
in 1969 and again in 1977. Regulations that were in the pipeline in 
2001 and 2002 should be reactivated and finalized in a timely fashion. 
New regulations to protect miners--both while on the job and when 
emergencies strike--must be promulgated. All such regulations must be 
enforced regularly and aggressively. MSHA must make these much-needed, 
and over-due improvements.
    The status quo is inadequate. The Government failed the Sago and 
Alma miners, and when it failed them it failed all miners. In enacting 
the Mine Act, Congress plainly stated: ``Congress declares that (a) the 
first priority of all in the coal or other mining industry must be the 
health and safety of its most precious resource--the miner.'' (30 
U.S.C.  801.) We take that admonition seriously; everyone else 
associated with the mining industry must re-establish miners' health 
and safety as their top priority, too. Senseless deaths and injuries 
must stop.
    I thank you for your interest in miners' safety and would be happy 
to answer your questions.

    The Chairman. Mr. Peelish.
    Mr. Peelish. Mr. Chairman and members of the committee, I 
would like to thank you for the opportunity to be here today.
    I was born in this industry in 1961 and was born in a small 
town just north of Sophia, West Virginia named Beckley. My 
father and my grandfathers were immigrant coal miners and my 
family has many coal miners on both sides of it.
    At the very outset, allow me to restate our shared support 
for the fundamental tenet of mine safety and health 
legislation, and that is our first priority and concern must be 
the safety and health of the miner. We appear before you today 
to pledge to work with Congress to ensure that out of the 
recent tragedies will emerge a stronger resolve and greater 
cooperation in pursuit of safer mines.
    The mining industry has undergone a significant 
transformation that continues at an astounding pace. Safety and 
health programs have advanced and have become embedded in the 
mining culture. The industry continues to adopt new 
technologies that advance the complementary goals of safety and 
productivity.
    Since the first oil embargo in early 1970s, the coal 
industry has answered the call to provide more coal to meet our 
Nation's energy requirements while providing a safer working 
environment for its workforce. Since 1970, coal production has 
increased by 83 percent and coal mine fatalities have decreased 
by 92 percent and today's reportable injury incident rate of 
5.6 per 100 workers gives coal mining a lower rate of 
occupational injuries than many other industries. No longer can 
coal mining be stereotyped as the most hazardous job in 
America.
    We take pride in all of these accomplishment, yet more can, 
must, and will be done.
    Today, I would like to discuss with you a threefold 
challenge: First, the principles we believe should guide our 
actions and policymakers based on our analysis of the partial 
information coming out of this year's tragic events; second, 
the need to focus on accident prevention in a changed and 
changing mining industry; and third, modernizing MSHA's 
enforcement procedures to more accurately mirror actual 
conditions in the mines rather than an inflexible adherence to 
outdated procedures.
    We have reviewed the publicly available information that 
has emerged from the events in West Virginia. In addition to 
the establishment of an independent commission of safety 
experts, we have developed an offer for the committee's 
consideration as it looks for ways to advance mine safety and 
health the following principles: first, expediting development 
and introduction of ground-penetrating communication and 
tracking technology; second, improving emergency notification; 
third, enhancing safety training and rescue capabilities; 
fourth, providing a liability shield and indemnification for 
mine rescue activities; fifth, ensuring that new requirements 
are accompanied by workable transitional timeframes; sixth, 
providing authority for mine operators to conduct mandatory 
substance abuse testing to all personnel at the mine; and 
finally, providing incentives to help companies invest in 
equipment and training needed for enhanced mine safety and 
rescue capabilities.
    Beyond the specific guiding principles discussed above, we 
direct your attention to overriding challenges. Today many coal 
mines present challenging geological conditions. As mines 
access deeper reserves, the technological limitations of 
historic control methodologies are readily apparent, presenting 
miners, mine operators, and Agency personnel with new and more 
difficult engineering challenges. To address these challenges, 
we have initiated several partnerships with the National 
Institute of Occupational Safety and Health, NIOSH, to examine 
new technologies to better protect miners' health. These 
partnerships have brought together experts to work on practical 
solutions to safety and health problems confronting the 
industry.
    I am pleased to report that the industry recently joined 
with NIOSH and others to form a partnership on mine emergency 
communications. The members of this committee and your 
colleagues on the respective Appropriations Subcommittee are 
very aware of the need to maintain a vibrant and well-funded 
mining research program within NIOSH. Recent events underscore 
this need. The Federal Government has an important role in 
technology development in order to bring safer new devices to a 
relatively small market for safety equipment. We urge your 
support to strengthen this vital Government function.
    In addition, certain structural changes in our regulatory 
approach to mine safety are necessary. Key among them is the 
need for MSHA to conduct more focused inspections and to 
enhance the quality of inspections. Many of our members who 
operate some of the safest mines in the country continue to 
have inspectors on-site during each and every operating shift. 
The misperception persists that the Mine Act-mandated four 
inspections annually for every underground mine and two 
inspections annually for every surface mine translates to only 
four inspections annually. Nothing can be further from the 
truth. MSHA statistics show that a large underground mine can 
have more than 4,000 onsite inspection hours per year. This 
means the presence of two to three inspectors each and every 
day the mine operates.
    Flexibility in inspection procedures is central to 
achieving the resource allocation determinations that are vital 
for improving the Agency safety and health programs and the 
industry's safe and health performance.
    Mr. Chairman, as we look to the future, we recognize that 
our ability to further advance coal mine safe and health will 
require an examination of the structural and technological 
hurdles that must be overcome. Further improvements will 
require us to identify potentially dangerous conditions before 
they put miners' safety or health in jeopardy as well as the 
appropriate methods to minimize the onset of dangerous 
conditions and practices. We look forward to working with you 
and your colleague as Congress considers legislation. Working 
together, we will develop programs to train and educate a new 
generation of miners so that they can have a safe and 
productive career in a noble industry vital to this country's 
energy markets and national interests.
    Thank you.
    The Chairman. Thank you.
    [The prepared statement of Mr. Peelish follows:]
                 Prepared Statement of Michael Peelish
                              introduction
    Mr. Chairman, members of the committee good morning, I am Michael 
Peelish, senior vice president, Safety and Human Resources for 
Foundation Coal Corporation and I am testifying on behalf of the 
National Mining Association. Let me begin by thanking you for this 
opportunity to have a conversation with you about miners' safety and 
health.
    Congress declared in the 1977 Mine Act that ``the first priority 
and concern of all in the coal or other mining industry must be the 
health and safety of its most precious resource--the miner.'' The 
mining industry has tried to live these words through its deeds and has 
taken on the challenges to protect its miners through both improved 
technological systems and worker safety behavioral changes and has 
successfully reduced the number of fatal injuries and the incidence 
rate for injuries dramatically since that time. But we will never be 
satisfied until every miner returns home safely at the end of each 
shift.
    Thus we should discuss our successes while recognizing there is 
much more to be accomplished. I am convinced the mining industry has 
not received the just credit for its safety success from the Congress, 
the American people, or the agencies that are charged with the 
responsibility of enforcing the Mine Act. As any good business should 
do, we must assess the ``As-Is'' state of the industry, what is the 
desired ``Future State'', and what is the process for obtaining the 
Future State. The Future State of mining, as it should be for any 
industry, is to seek Zero injuries and Zero incidences of health 
related illnesses. Now, the question presented is how do we achieve 
Zero?
                      industry safety performance
    The ``As-Is'' state of mine safety shows dramatic improvement since 
1970.
    I know this committee has seen the MSHA published data which shows 
the dramatic improvements made in safety. To summarize, from 1970 to 
2005, fatal injuries have decreased by approximately 92 percent in the 
coal industry and by approximately 75 percent in the metal/nonmetal 
industry. Please listen to me when I say these are too many, but there 
has been significant improvement. In 1978 the coal incidence rate for 
all injuries was 10.05 and the metal/nonmetal incidence rate for all 
injuries was 7.95. In 2004, the incidence rate reduced by over 50 
percent to 5.0 for coal mining and 3.55 for metal/nonmetal mining. This 
is also clearly a dramatic improvement, and an incidence rate far 
superior to many other industries, but not at the level we in the 
mining industry consider satisfactory.
    These MSHA statistics show improvement while both coal and metal/
nonmetal industries have achieved record production. How has the mining 
industry achieved this performance? I would submit these improvements 
have been achieved through industry initiated mining techniques and 
technologies and a change in culture whereby mine operators truly 
believe that safe mines are more productive mines.
    In the 1970s, roof and rib accidents were a common cause of serious 
and fatal accidents in underground mining. Improvements in mining 
techniques, such as longwall mining in underground coal mines and the 
use of automated roof drills in hardrock mining have helped mine 
operators reduce dramatically this most unforgiving type of accident. 
In surface coal and metal/nonmetal mines, better design and layout of 
haul roads and high wall management has achieved similar improvements 
in mine safety. Mine operators and equipment manufacturers have 
introduced other mining technologies such as remote controlled and 
automated equipment, roof bolting support systems, rollover protected 
operator cabs, and atmospheric monitoring systems in both industries. 
And in coal mines, improved ventilation systems were introduced by mine 
operators through the use of ventilation boreholes and bleeders shafts 
for safer gob ventilation and the list goes on.
    I have so far commented on technical improvements and these are 
clearly important. But perhaps, the most important element in improving 
safety is the relentless focus on ``safety culture.'' My current and 
former employers all practice what they preach by providing training 
well beyond what is required by the MSHA training standards. In 
Foundation Coal, safety culture starts in the board room and at the 
senior management level and cascades down to the mining operations. 
Safety performance is discussed at every board meeting, every senior 
management meeting, and most important at every shift at the mines. 
This focus has been no different since I entered this industry as a 
mining engineering student in 1979. The message in this industry is 
clear, safe mines are productive mines. Said another way, do it right 
the first time every time has been ``preached and practiced'' by my 
employers throughout my career. However, based on recent statements 
from individuals inside and outside of this industry, they would have 
you believe that ``safety is not a top priority in the mining 
industry.'' Those people obviously do not attend the regular meetings I 
attend, nor do they understand the constant message about safety to 
employees, because that claim is false. Again, our industry is not 
perfect and we strive for Zero, and that is why new opportunities 
should always be explored. This brings me to the current legislative 
proposals aimed at improving safety.
                  current legislative safety ppoposals
    The recent spate of State and Federal legislative efforts must not 
be pursued in a manner so as to miss an opportunity to do what is 
right. As Senator Byrd stated at the time of the January 23, 2006 
hearings before the Subcommittee on Labor, Health and Human Services, 
Education and Related Agencies of the Senate Committee on 
Appropriations, ``politics must never play a role in the enforcement of 
safety and health regulations.'' The mining industry could not agree 
more, but the mining industry fears the politics of safety will play a 
role if a rational approach is not utilized to assess and implement 
best practices. To do otherwise may result in the implementation of 
approaches and technology which are not the most effective or reliable. 
In this regard, I want to address some of the proposed legislative 
mandates that have recently appeared in this Congress.
    First let us look at Communications and Tracking Technologies. The 
industry members are supportive of improved mine communications. My 
company's most senior engineer with extensive experience in German and 
other international coal mines as well, had traveled to South Africa 
several months before the Sago mine tragedy to assess available 
technology. A completely fail-safe communications and tracking 
technology, however, does not exist and did not exist at the time of 
the recent mine disasters, notwithstanding what this Congress was told 
during January 23, 2006 hearings. To my knowledge, an affiliate of 
Foundation Coal installed one of the first PED systems in the U.S. coal 
mining industry in Utah. This system worked to notify miners of a mine 
fire in 1998. This system allowed a simple text message to be sent to 
the miners advising them to evacuate the mine. This early warning 
allowed miners to evacuate the mine immediately without injury. For 
this we are grateful. However, it is important that you understand the 
limitations of this system. First, the text message could only be 
communicated one way. Second, the system had shadows whereby miners 
were not always able to receive messages. Third, the system relied on 
an in-mine antenna to function. In fact, the system was lost within a 
matter of minutes after the original text message had been sent due to 
the mine fire destroying the underground circuit. After that incident, 
testing was done to see if an indestructible surface circuit could be 
installed and provide the same level of coverage. No system could be 
found that was capable of achieving this goal.
    Can improvements in communication be achieved? Emphatically the 
answer is yes. My concern is not that additional communication 
requirements will be mandated, nor is it the cost of communication 
systems. My hope is that realistic expectations of what is 
technologically achievable drive whatever requirements become either 
law or ``Best Practice'' in the industry. Also, the mining industry 
does not object to the use of tracking systems although tracking 
systems that approach the level of coverage expressed to this Congress 
during the January 23, 2006 testimony clearly do not exist. Let us 
approach this issue through sound science and not idle promises of 
equipment vendors and others who want to sell a product or state as 
fact that which is only a comment or opinion.
    Next I would like to address Adequate Supplies of Air. The industry 
promotes technology or ideas that provide ``adequate supplies of air''. 
How that objective is achieved may vary depending on individual mine 
conditions. Let us not forget however that the first and foremost 
principle in this industry, a view shared by agencies and mine workers 
alike, is to evacuate and not to barricade. Barricading is an absolute 
last resort. The ability of a last resort chamber to withstand a 
secondary explosion or fire is at best problematic. Our company, 
without an Agency mandate, installed last resort chambers in 2 western 
coal mines with exceptionally long escape distances. I am aware that 
another company with which we were formerly affiliated installed 
similar chambers in an underground molybdenum mine in the west with 
multiple mining levels and shafts. These are workable solutions and can 
provide a ``secondary'' means of safety. I say secondary means of 
safety because again the first principle is to evacuate.
    The 1969 Coal Act and the 1979 Mine Act recognized this principle 
by requiring two distinct escapeways from the mining section to the 
surface. It is not sound safety practice to encourage a false sense of 
security. In fact, when last resort chambers were inserted into the 
Mine Act, the mine rescue experts of that time period urged the Agency 
to emphasize escape and not barricading in its training. We have all 
followed this prescription for good reason--it is the right thing to 
do. I realize the recent experience in Canada with the potash mine fire 
may encourage legislators to revise the principle so as to barricade 
first, but potash does not burn.
    Further, the industry does not oppose additional self-rescuers for 
escapeway systems that require a longer time to travel through to 
safety. The industry is continuing to work hard to find a workable 
solution to these issues. Our request is that if a standard is put 
forth that it be performance based allowing for flexibility to meet the 
standard.
    There have also been proposals for revamping Mine Rescue Teams. Mr. 
Chairman, the mine rescue system is not broken, but it can be improved 
with the right leadership. At both of the mine incidents in January 
2006, mine rescue teams answered the call and for this we are all 
grateful. Changing the law unfortunately would not have changed the 
outcomes. Rather than mandate teams at every mine, Congress and the 
States should find ways to encourage mine operators to form teams of 
miners who want to be involved in mine rescue or emergency service. The 
industry's fear is that passing unrealistic mandates will create mine 
rescue teams on paper only but will not create mine rescue teams that 
have the desire to do what they are asked at the time of a mine 
emergency. Furthermore, quickly formed and inadequately trained mine 
rescue teams will discourage the willingness of well-trained teams to 
put their teams at risk when the time comes to help a neighbor in need.
    Mine rescue team members are very special people. They do not 
participate in mine rescue for either the money or the glory. They do 
it because they have the desire to help others in need. We can improve 
the mine rescue system and the industry has looked at this issue many 
times over the past decade. In the 1990s and again in 2002, summits on 
mine rescue were convened by MSHA, and ideas were discussed and plans 
were developed by mine rescue experts, industry, labor and MSHA. For 
whatever reasons, MSHA has not taken what the industry, labor, and 
Agency experts have put forth and caused positive change to occur. 
Congress should allow these experts to again wipe off the dust from the 
work that has been shelved and provide the mine rescue experts the 
confidence that what is developed will be acted upon with all 
deliberate speed. I do not come before you with the answer, but I do 
know that well intentioned rules that are developed without the input 
of the mine emergency experts would be a mistake. I know that these 
experts can develop a solution. They showed at these summits that they 
are willing to develop solutions. All they ask is for their ideas to be 
followed-up with action. Let us consider a few additional points about 
mine emergencies.
    Let us not be fooled that safety will be improved by assuming the 
answer is more mine rescue teams created through a legislative mandate. 
Individuals who understand mine emergencies know that mine rescue teams 
are the last line of defense. The industry looks at mine emergency 
preparedness in a much broader proactive sense focused on improving 
prevention, detection and first response. This Congress can provide the 
leadership for mine operators to engage in the first two levels of mine 
emergency preparedness so as to avoid the need for mine rescue and 
recovery. After prevention and detection, the first level of mine 
emergency preparedness is fire-fighting training. This involves trained 
fire-fighting personnel capable of responding in the first critical 
minutes of an emergency and the availability of fire-fighting 
equipment. The second level of mine emergency preparedness involves 
more highly trained fire fighting personnel who have undergone more 
intense training and have additional fire-fighting apparatus. The next 
level involves the mine rescue and recovery teams as we now know them.
    The mining industry has not been afraid to spend money for mine 
emergency safety if it is to serve a good purpose. Case in point is 
that my company formed the first mine rescue team at Riverton Coal 
Production in the coal industry in 15 years in 2001. It did so at the 
time when the coal market did not support such costly expenditures. It 
formed a mine rescue team not because of a legislative mandate, but 
because strong senior and operational leadership believed it was the 
right decision.
    Congress can also assist in the formation of mine rescue teams by 
providing that mine rescue personnel or operators will not be liable 
for civil damages for acts or omissions resulting from providing such 
rescue work unless such acts or omissions are the result of gross or 
willful misconduct.
    Increased Civil Penalties Are Not the Answer. Attaching significant 
civil penalties for insignificant citations will not improve safety. If 
this committee wants to penalize a bad actor, then MSHA has every tool 
in the tool bag to do so now including closure of the mine, enhanced 
civil penalties under Part 100, and criminal penalties. Further, not 
allowing an independent body to review citations and the associated 
penalties when applicable is a blatant attack on the constitutionally 
derived due process of law. To my knowledge, no other forum in this 
United States is precluded from reviewing the actions of an Agency 
through Congressional fiat. It is not good practice to allow the Agency 
which promulgates the regulations, enforces the regulations, and then 
assesses the penalties under the regulations to avoid being reviewed by 
an independent body. This is a bipartisan approach because it works 
both ways. Penalties can go up or go down. To eliminate the opportunity 
for a hearing before an independent and unbiased body is unfair. It 
would not be appropriate in any sector of the economy, be it 
transportation, agriculture, construction or any other industry with 
safety incidence rates less favorable than those achieved in the mining 
industry.
    The West Virginia Experience. This industry knows the expediency 
with which the West Virginia legislature passed legislation to address 
the actual and perceived shortcomings of safety practices. Since that 
legislation was introduced, several versions of an emergency rule have 
been issued, reissued, and are currently being finalized. These revised 
emergency rules are significantly different than the initial 
legislation. Why do you suppose that is? I would submit that once the 
industry, labor, and competent Government expertise were allowed to 
have a seat at the table, a better solution was achieved without losing 
site of the general precepts of the initial legislation. Mr. Chairman, 
this committee should learn from that experience.
    I have heard that some Senators believe we must do something 
quickly with mining legislation because ``perfect is the enemy of 
good.'' I would submit to this committee that legislation without the 
support of science and facts is exactly what we must not do. This 
committee and the American public and press should not rush to a 
judgment of this industry especially in light of the vast improvements 
the mining industry has made over the past several decades and its 
superior incidence rate over other industries. We achieve more as a 
total mining industry to solve a problem, without agendas, when we pool 
our collective efforts of industry, labor and Government 
representatives.
                           guiding principles
    Mr. Chairman, before I move into Recommendations for Reform, I 
would like to share with this committee the work of the mining industry 
CEOs whose collective experience will be invaluable to Congress as it 
discusses mine safety legislation. The CEOs of coal and metal/nonmetal 
have shown strong leadership by establishing an independent commission 
of safety experts who will examine how technology and training 
procedures can be more readily adapted for use in our mines. I am 
pleased to say that Mr. Cecil Roberts has agreed to be a member of that 
commission. Those principles include:

     Expediting development and introduction of ground 
penetrating communication and tracking technology;
     Improved emergency notification;
     Enhancing safety training and rescue capabilities;
     Providing liability shield and indemnification for mine 
rescue activities;
     Ensuring new requirements are accompanied by workable 
transitional timeframes;
     Providing authority for mine operators to conduct 
mandatory substance abuse testing of all personnel at the mine;
     Providing tax incentives to help companies invest in 
equipment and training needed for enhanced mine safety and rescue 
capabilities.

    Now, I would like to address several areas in need of reform if we 
are to achieve Zero.
                       recommendations for reform
    Mr. Chairman, as shown in the statistics, the mining industry has 
achieved tremendous success in improving its safety and health 
performance during a time of tremendous change within the industry. 
Today, the regulation of the mining industry has lost its focus and the 
inspection of the mining industry does not fulfill the primary 
principle Congress declared in the Mine Act by protecting its most 
precious resource--the miner. We understand and firmly believe the 
Federal Government has had a significant and longstanding role in 
fostering occupational safety and health in our Nation's mines, dating 
back to the passage of the Federal Coal Mine Safety Act in 1952. Before 
that the Bureau of Mines was enforcing safety and health standards at 
hardrock mines under the Federal Metal and Nonmetallic Mine Safety Act 
of 1966. Then in 1969, Congress passed the Federal Coal Mine Health and 
Safety Act. The Coal Act was amended in 1977 to include all mines in 
the United States under what is now called the Federal Mine Safety and 
Health Act of 1977 (the Mine Act).
    During the 29 year period since passage of the Mine Act the 
industry has changed dramatically. Regrettably, the same cannot be said 
of MSHA. The mining industry believes it is time to review the Mine Act 
to determine what works, what doesn't work, and what changes are needed 
to further advance miner safety and health. The recommendations which 
follow will come as no surprise to MSHA. Indeed, for many years we have 
discussed these ideas with the Agency. Yet while some gains have been 
made in the form of industry, labor and Government partnerships on key 
issues, there remains a general reluctance to adopt needed policy 
changes to reflect continued improvement in workplace conditions. While 
we must improve our vigilance against causes of major mine accidents, 
we must more intensely focus on the causes of individual fatalities and 
injuries and the potential health consequences of workplace exposures 
to harmful substances.
    To effectuate the proper balance, it is time to reevaluate the 
current regulatory and enforcement program and stop elevating form over 
substance. The resources of both Government and industry must be 
redirected toward the prevention of accidents, injuries and illnesses 
and away from issuance of insignificant violations to meet a quota. 
Decisions must be based upon sound science and recognition of the 
industry's commitment to further improving miner safety and health. The 
mining industry believes certain fundamental reforms must be 
implemented for continued improvements to miner safety and health:

     first, MSHA must base resource allocation decisions on 
documented need, rather than unexamined conformity with the directives 
contained in the Mine Act;
     second, inspections must be more focused and the quality 
of inspections must be enhanced through better inspector training and 
education;
     third, rulemaking and policy decisions must be achievable, 
authorized by and in compliance with the law and developed on the basis 
of sound science and the furthering of miner safety and health rather 
than ease of enforcement;
     last, a more cooperative, even-handed, and constructive 
climate must be fostered between MSHA and its various constituencies.

    Inspections Activity & Resource Allocation Decisions. Mr. Chairman, 
MSHA resource allocation decisions, inspector utilization 
determinations and the time allocated to individual facility 
inspections must be adjusted based on industry segment and site 
specific accident rates. MSHA should establish a mechanism to provide 
incentives to reduce the number and scope of inspections on the basis 
of performance and the adoption of voluntary performance programs. As 
you know, under the Mine Act, MSHA is required to inspect every 
underground mine 4 times per year and every surface mine twice per 
year, but the Agency also conducts thousands of what it calls ``spot'' 
inspections aimed at measuring compliance with standards governing 
specific conditions or practices. Contrary to Congressional 
expectations, the two surface mine inspections and four underground 
mine inspections do not consist of semi-annual or quarterly visits of a 
few days' duration. Rather, they can generally mean a continual 
presence at the mine throughout the year. MSHA's statistics show that a 
large underground coal mine can have as many as 4,000 onsite inspection 
hours a year. You must recognize that this level of inspection presence 
means there are 2-3 inspectors at many mines every weekday.
    If Congress wants MSHA to have a bigger impact on improving safety, 
then let us make more efficient use of its resources. Said another way, 
we need to align inspections with the first priority of the Mine Act--
protect the miner. More often than not, a mine inspector is not able to 
cite the incidence rate of a mine, but they are able to cite the number 
of citations that have been issued to that mine. Is this really what 
the framers of the Mine Act wanted?
    My experience is that a significant majority of citations are 
issued based on a subjective application of the regulations. Let me 
illustrate this point. A mine inspector is stationed at a street corner 
with a speed limit of 25 miles per hour. A vehicle passes by the street 
corner. The mine inspector does not know what speed the vehicle is 
traveling, but issues a citation in any event because the inspector 
believes the vehicle is traveling over the speed limit. Was the vehicle 
traveling at 25 or 30 or 20 miles per hour? Should the mine operator be 
subjected to increased civil penalties under these set of 
circumstances? I would say not. This is the quandary the Mine Act 
creates and the difficult position that mine operators and mine 
inspectors are placed. Now reasonable people will know if the vehicle 
is traveling at 45 or 50 miles per hour pass the street corner. There 
is not a mine operator that would disagree that this vehicle should be 
dealt with harshly. This is the reality of the mining workplace.
    Another reality of the workplace is what I will call the second-
guessing of mine operators. As an example, a mine operator will have a 
rock dust plan or an equipment cleaning plan or a haul truck tire 
maintenance plan in place that has been accepted for ``years'' by a 
particular inspector or inspector group. And more importantly the 
programs worked just fine for all those years. Then 1 day a new 
inspector or field office shows up and says what you have been doing is 
inadequate and issues a citation. Where is the fairness in that 
approach? This is not an isolated story. This is a regular problem with 
the way MSHA unevenly enforces the regulations. And the answer the 
inspector or conference officer or district manager will commonly 
provide, ``if you disagree, then appeal it.'' This is not a good 
solution because the damage is done at the instant the citation is 
issued and the mine operators are not in the business of making lawyers 
rich.
    Again, focusing on the facts and the science, there has yet to be a 
study that shows that more inspections or more citations improve the 
incidence rate of a mine. And there is good reason, it simply does not 
compute. Mr. Chairman, this committee could do a world of good if it 
modified the inspection regime to focus on the significant conditions 
and hazardous conditions that affect mine safety. MSHA should be 
mandated to modify its inspection regime to focus on the bad actors in 
the mining industry and yes there are bad actors. In my 20 years of 
experience in both the coal and metal/nonmetal sides of this business, 
the good mines are inspected more and the poor mines inspected less.
    Mr. Chairman, now let us really think out of the box. Let us make 
MSHA inspectors share the responsibility of the incidence rate at a 
mining operation. Let MSHA inspectors be judged on a mine's incidence 
rate rather than its citation per inspector day rate. This novel 
approach might cause MSHA to focus on what accounts for 90 percent of 
the accidents and injuries to miners--unsafe behaviors, not unsafe 
conditions. The industry is not abdicating its responsibility and we 
would never suggest such an idea. However, if we joined the forces of 
the mine operator and MSHA, the right behavioral change to achieve 
improved safety and health would be the outcome and the ability to 
breakthrough to Zero becomes more of a reality.
    Present inspection procedures are disruptive and time-consuming. 
They are citation oriented with little regard for addressing structural 
deficiencies in safety and health programs. This industry is so 
distracted by the actions of MSHA under the current inspection and 
enforcement scheme that it actually takes away from the safety programs 
at the mines. It hurts me to make that statement, but it is true. Mine 
operators have a huge unnecessary burden having to manage 2 or 3 or 
sometimes 4 inspectors daily and then having to manage a safety program 
with the intent of changing miners' behavior and actually improving 
safety. Further, this industry is finding it hard to find miners who 
have the qualifications and certifications to be mine foreman or 
responsible individuals because of the day-to-day distractions and 
second-guessing brought on by an Agency gone awry.
    MSHA must utilize the information available, all of which it 
compiles and maintains, to identify problem areas and allocate its 
inspectorate accordingly. MSHA collects a substantial amount of 
accident data from operators. Indeed, under MSHA's regulations mine 
operators must report all injuries and illnesses within 10 days and 
other types of accidents directly to the Agency whereas under the OSHA 
statute, thousands of workplaces need only record such injuries in a 
log that is subject to examination by OSHA inspectors, assuming, of 
course that those inspectors show up at the property. In short, MSHA 
has an extraordinary database that can be used to better manage their 
resources, but the Agency's resource allocation decisions must be based 
upon documented need and analysis, rather than in response to those who 
assert the greatest pressure on MSHA's management decisions. Given 
their repeated claims of limited resources, and the need to focus on 
problem areas while meeting their statutory inspection mandate, MSHA 
needs to streamline its inspection approach to target those conditions 
or practices which are known to contribute to injuries and illness.
    We believe it would be appropriate for MSHA to establish a 
mechanism to provide incentives to reduce the number and scope of 
inspections based on performance and the adoption of verified and 
objectively administered voluntary performance programs. Mines whose 
safety performance exceeds agreed upon industry averages need not 
receive the same degree of inspection attention as those that fail to 
meet such criteria. My former employer operated a copper smelter 
facility which applied for Voluntary Protection Program (VPP) Five Star 
recognition. I had the opportunity to view this process and was 
impressed with the rigor required before such a determination could be 
granted. It is a process that is successful and actually places greater 
responsibility on the operator to perform.
    OSHA, by virtue of its expansive jurisdiction, has had to target 
its enforcement resources in order to address those worksites and those 
conditions that need the most attention. MSHA should consider adopting 
similar targeted compliance programs which recognize those whose 
performance is exemplary and permit focused attention toward those 
whose performance does not meet well-defined criteria. Continuing to 
mandate a minimum number of rigid inspections, with no consideration of 
performance, will not move the incidence rate below the current static 
plateau.
    Of equal importance is that MSHA inspectors be trained and 
qualified to inspect the type of facilities to which they are assigned. 
The changing nature of mining and the enhancement processes used by 
certain segments, for example autoclaves and roasters, mandates that 
those charged with the responsibility of assessing compliance with the 
law and implementing regulations be thoroughly familiar with the 
processes employed. Underground coal mining is not the same as 
underground metal/nonmetal mining. To believe that an individual, 
solely by virtue of previous MSHA experience, is qualified to 
administer and enforce the Mine Act at all operations is foolhardy. 
Regrettably this is what is occurring in MSHA today. To address this 
MSHA should consider developing minimum professional development 
standards for individuals at all levels within the organization.
                               rulemaking
    Mr. Chairman, MSHA's proposed regulations should undergo scientific 
peer review, rulemaking procedures should conform to the law, and the 
Agency should be responsive to its constituencies. All too often in its 
rush to complete action on initiatives, MSHA has often relied on 
dubious scientific premises, has given short shrift to the notice and 
comment requirements of the Mine Act and the Administrative Procedure 
Act, and has steadfastly ignored serious, scientifically sound, and 
fundamental concerns expressed by operators and miners in the 
rulemaking process. This was most evident in the late 1990's. Yet there 
are those that would have you believe that because some of those rules 
were later withdrawn that somehow this was a nefarious act on the part 
of MSHA.
    Regarding those withdrawn rules, let us take a minute and look at 
some of the rules that were withdrawn and the logic behind those 
withdrawals.
    Belt Flammability--The idea of developing a new belt flammability 
standard was driven by an increase in conveyor belt fires in the 1970s 
and 1980s. While the development of repeatable test protocols and 
standards to be met by these tests were being developed other safety 
features for conveyor belt safety began to be widely used in the mining 
industry. Among these other items were better early warning fire 
detection systems and Programmable Logic Controls (PLCs) for more 
reliable belt slip and sequence protection. These combined with general 
standards of examinations and maintenance of belt systems resulted in a 
significant reduction in the number of occurrences of belt fires during 
the 1990s. This information as well as the toxic by-products caused by 
the types of chemicals needed to meet a new fire resistant test 
resulted in a logical concern that this rule as unnecessary. Safety 
professionals concluded that prevention, detection, and suppression 
were better safety systems that provided a better measure of safety.
    Respirable Coal Dust--The evolution of the Respirable Dust 
regulation withdrawal is a template for how regulations should be 
developed. The original regulations were pushed through to public 
hearings in the mid 1990s. At the public hearings, a universal 
condemnation of this proposal from both industry and labor resulted in 
the withdrawal. Both industry and labor wanted a real time monitor that 
minimized operator involvement in the actual sampling. Research was 
conducted under NIOSH and eventually a personal dust monitor of PDM was 
developed. Before these units could be field tested and a workable 
process for their use could be developed, MSHA again came out with a 
revised version of the previous regulations. Again, both industry and 
labor vigorously commented that these rules failed to meet the goals of 
protecting the miner. These rules were also withdrawn and work 
continues on developing a personal dust monitor regulation. As an 
aside, I would like to comment that much of the work on PDM development 
has been through a partnership of industry, labor, MSHA and other 
interested parties under the umbrella of NIOSH functioning as a 
``honest broker'' to determine what available technology is capable of 
accomplishing.
    SCSR's--Possibly the most misleading comments have been made 
regarding SCSR proposed changes. It was implied that the proposed rule 
would have provided a SCSR that would function for longer than 60 
minutes. The quest for a new generation of SCSRs was for a more 
ergonomically sound, i.e., a maller 1 hour unit. This rule was focused 
on designing a SCSR unit that was smaller without increasing the amount 
of air available to a miner. In essence, this was an ergonomics rule. 
Ironically, the rule missed the boat entirely. We believe the better 
approach is to provide a smaller unit with 20 to 30 minutes of air and 
then to require a plan to have more air available in stored units that 
do not have to withstand the destructibility testing of the belt-worn 
units.
    Air Quality Rules--This rule was withdrawn in 2004. MSHA's reasons 
for withdrawal acknowledge that ``it had been more than 13 years since 
the proposal was published and more than 12 years since the comments 
were received. MSHA acknowledges that the threshold limit values (TLVs) 
are more than 25 yeas old. However, at this point, MSHA cannot proceed 
without reevaluating its approach to the complex issues that this 
proposed rule addressed and developing alternatives using more current 
scientific and technical information.'' MSHA went on to state ``Such a 
comprehensive approach to rulemaking is no longer a viable means to 
address such concerns, especially in light of the Eleventh Circuit 
decision in AFL-CIO vacating a similar OSHA standard. The AFL-CIO court 
vacated OSHA's entire air contaminants rulemaking, finding that the 
Agency had not met its statutory burden in establishing the PELs for 
each of the 428 contaminants regulated by the standard.''
    Diesel Particulate Standards--These rules were proposed in 1998 and 
1999 and the rulemaking did become final for coal in 2003 and is still 
pending for metal/nonmetal. While MSHA touted its ``toolbox'' approach 
which resulted from a series of public meetings conducted to share 
ideas on methods to reduce miners' exposures, they did propose rules 
that are vastly different which makes no sense to either industry. 
However, as I earlier described when discussing PDMs, there has been a 
diesel partnership, consisting of the same groups of constituents 
working on the implementation of these rules.
    Belt Air--Regulations to allow for the use of belt air to ventilate 
the working sections was approved by the Assistant Secretary in 2003 
and has now been labeled by some as an example of a reduction in 
safety. These regulations basically put into regulation what has been 
approved in section 101(c) petitions for modification requests since 
the early 1980s. To put this into perspective, petitions had been 
granted for using belt air to ventilate working sections at over 100 
coal mines prior to this regulation being finalized. These petitions 
for modifications were granted by Assistant Secretaries working for the 
Department of Labor under both parties. There was nothing under-handed 
about this regulation being enacted. This regulation essentially 
codified the requirements of the various petitions for modification 
into one set of regulations that any operator of the industry could 
comply with if any of its mines needed additional ventilation for a 
working section.
                           policy formulation
    I agree with Mr. Cecil Roberts' statements during his testimony on 
January 23, 2006 before the Subcommittee on Labor, Health and Human 
Services, Education, and Related Agencies of the Senate Appropriations 
Committee when he said, ``Too often MSHA relies on ``policies,'' which 
are developed internally and without public comment, to circumvent the 
Mine Act. This reduction in MSHA's effectiveness didn't happen 
overnight; it has been a problem for much too long. We have been 
critical of MSHA under both Democratic and Republican 
administrations.''
    MSHA should be prohibited from rulemaking by the issuance of policy 
statements or by after the fact rationalizations during litigation. 
Section 101 of the Mine Act and the Administrative Procedure Act extend 
to the regulated community certain participatory rights in terms of a 
regulatory Agency's rulemaking process. Under the provisions of both 
statutes the public must be afforded adequate notice of, and the 
opportunity to comment on, a regulatory Agency's intended actions. 
Moreover, while the statutes extend considerable discretion to the 
regulatory body when considering comments from the public, its implied 
intent is to structure rules that are responsive to the interests of 
the public, i.e., the regulated community.
    The notice and comment requirements of administrative law are 
significant and do not serve an idle purpose: they give the public fair 
and adequate notice of proposed regulatory changes, help insure sound 
standards by permitting input into the regulatory process, and insure 
affected parties due process of law. On many occasions, however, 
because MSHA is apparently unable or unwilling to undertake a proper 
rulemaking under Section 101 of the Mine Act, it has chosen to evade 
its legal obligation by enforcing new requirements arrived at by 
administrative fiat.
    When these policy initiatives result in an enforcement action and a 
subsequent legal challenge by an operator, MSHA takes the position that 
the Mine Safety and Health Review Commission and the Courts of Appeal 
must ``defer'' to the Agency's interpretation of the Mine Act or its 
own standards as long as the interpretation is ``reasonable'' and, of 
course, reasonableness is a matter of subjective judgment. MSHA 
apparently believes that it can adopt any ``interpretation'' of a 
standard that it wishes and then argue that its interpretation should 
be granted unquestioning deference. This attitude characterized the 
single shift sampling policy, which was vacated by the 11 Circuit Court 
of Appeals during the latter part of the 1990s as well as the attempt 
by the Agency to overturn the commission's precedent by unilaterally 
changing the definition of ``significant and substantial'' as that term 
is used to describe the degree of seriousness of a safety or health 
violation as well as the reissuing of an invalidated policy defining 
the designated occupation for respirable dust sampling purposes.
    Frankly, Mr. Chairman, what concerns the mining industry more is 
when we challenge MSHA on an issue in court or in the public and win 
only to find out they will issue a policy and hammer the industry even 
harder. Way too much deference is given to this Agency and its ill-
advised principles. The true experts in this industry are mine 
operators and laborers. Yet we read decision after decision stating the 
expertise of MSHA should prevail. This is quite disheartening when most 
of the scientific research into equipment design or ventilation 
techniques is being driven by mine operators and NIOSH, not MSHA. The 
deference given MSHA by the courts has swung the pendulum to the unsafe 
side.
                          cooperative approach
    There are some in this industry that believe this ``partnership'' 
approach is like the ``fox guarding the hen house'' and that we should 
abandon this approach. I am flabbergasted by these beliefs and 
comments. What has this Government and country come to when it would 
prefer confrontation over cooperation? What are we afraid of? Are we 
afraid that the glory may be received by someone else or do we feel we 
can only show strength in conviction by always raising the rhetoric. I 
have personally participated in the diesel, noise, and respirable dust 
partnerships involving industry, labor, MSHA and the NIOSH. As you may 
know, just last week a partnership was formed under the direction of 
NIOSH on Mine Emergency Communications. I know that cooperation is 
better than confrontation. I further know that all parties have input 
and no one party is disadvantaged by these partnerships, the most 
important party being the miner. More is accomplished during these 
intense periods because the ``science flows to the top'' and directs 
the actions of the parties. Agendas do arise and over time are 
eviscerated because the parties at the table won't tolerate these 
agendas and eventually good, science-based compromise prevails. Indeed, 
we do not always agree and have honest disagreements during these 
partnerships. But more good has been accomplished over the last 5 years 
during these partnership efforts than during the confrontations of the 
1990s. Because the confrontation is less, the outcomes are more and 
better.
                               conclusion
    I have had the distinct honor of participating with the CEOs of the 
mining industry as they set forth their guiding principles regarding 
mine safety and health. These are people who have lived and worked in 
this noble industry and dedicated their lives to this noble industry. I 
urge this committee to weigh carefully the recommendations of our 
industry's leaders and give their guiding principles all due 
consideration so that any legislation resulting from this oversight 
reflects the practical and thoughtful reflections of their considerable 
experience.
    Today, mine safety and health professionals face challenges far 
different from those anticipated when the Mine Act was enacted. Today's 
challenge is to analyze why accidents are occurring at a mine, then use 
that analysis as a basis for designing programs or techniques to manage 
the accident promoting condition or cause. Where existing technology is 
not sufficient, mine operators must be afforded the flexibility to use 
all existing, nontraditional means to protect miners.
    MSHA has been, and must continue to be, a partner with industry to 
address these new concerns. This can only be accomplished through:

     the reallocation of resources, both in terms of personnel 
and budget dollars, to address legitimate problem areas that still need 
correction;
     the incorporation of flexibility to target inspection 
resources; the allocation and rededication of technical support 
services to address technical mine problems;
     the establishment of an open and equitable rulemaking 
process, that quantifies risk and benefits, abandons the penchant for 
regulating through policy and holds all parties, including MSHA, to the 
same evidentiary standards.

    Mr. Chairman, once again, on behalf of the members of the National 
Mining Association, thank you for the opportunity to give our 
perspective on this vital public policy matter. If you or the other 
members of the committee require additional information, we stand ready 
to provide it.

    The Chairman. Mr. Peelish, Mr. Novak mentioned in his 
testimony that the primary mining research division of the 
Federal Government was transferred and downgraded from when the 
Bureau of Mines was closed in 1996. Has this had a negative 
affect on the development of mining practices and technology 
that ensure the safety and health of miners?
    Mr. Peelish. Sir, I think that the Bureau of Mines did 
fundamental research in mining, and many of the advances that 
were made in mining were done through the Bureau of Mines. That 
was a great, great facility. I have had the opportunity to work 
with a German parent company that previously owned us, and the 
German model was to have much Government research done in the 
German coal mines, the DSK coal mines. That was similar to the 
Bureau of Mines model, although those mines were not owned by 
the Bureau of Mines.
    NIOSH has tried to pick up the ball and has done a good 
job, but I think the basic level of research now is much, much 
less than it previously was under the Bureau of Mines. So I 
think it has impacted, although the partners that we have 
developed in the diesel, respiral dust, noise area and now the 
mine technology have proven to be much better. The idea of 
cooperation versus confrontation has assisted us because all 
people have a voice at the table. The agendas at the table are 
quickly done away with because the science tends to flow to the 
top, and NIOSH is a good honest broker when it comes to making 
certain that the topic at hand is the protection and the safety 
and health of the miner.
    The Chairman. Thank you.
    Mr. Neason, I appreciated your comment that you are usually 
talking to mechanics.
    Mr. Neason. It is a very different place, yes.
    The Chairman. I am an accountant. I really prefer numbers 
and I don't like to speak that much. I know that many in the 
mining industry are concerned that the workforce is graying, 
growing older, and there is little influx of new miners. There 
is a lot of concern that these experienced miners will leave 
the workforce and industry will have to rely on newer, less 
experienced miners which could result in less safe and 
productive mines.
    Can you tell me a little about the demographics of the 
employees that work at your mines, and as a former miner 
yourself, do you think that there is sufficient incentive for 
new people to enter the profession, and if not, what can be 
done?
    Mr. Neason. Well, you know, it is not a real alluring 
business to a lot of young folks. There is no question about 
that.
    Senator Byrd. It is not what?
    Mr. Neason. It is not a very alluring business to young 
folks when we are talking about bringing in a younger 
demographic into mining.
    I did an annual refresher training class 2 days ago, and 
when we were going through our accident history and how we were 
doing as a company, the question immediately jumped out why are 
these kind of accidents that we are having, maintenance-related 
things, why were they occurring, and I was talking to a group 
that was pretty much made up of older employees, and they were 
just so adamant that the experience that they had is fantastic, 
but the fact of it is a lot of them are now 50 and 60 years 
old, and a lot of the work that they do is burdensome on them 
and there is not a lot of younger guys around to help them out 
with it.
    So there is absolutely an issue with the aging workforce 
that we have got, and how you bring younger folks in, I don't 
know. I took the job because my dad did it. My grand-dad did it 
and his dad did it, and it was just part of what went on in our 
family and in our community, but I think that is really the 
only pull that there is right now.
    The Chairman. Thank you. Dr. Howard in his remarks observed 
that in mining in particular, there is no single safety 
solution because each mine is different and requires a 
different mix of technologies and practices. I know his view 
reflects the concern of many about a static one-size-fits-all 
approach to safety regulation. Your comments on it, each of 
you?
    Mr. Peelish.
    Mr. Peelish. Mr. Chairman, I think the goal of the Congress 
and of MSHA is to set an objective. Because there are different 
conditions in mines, there are different needs of mines. The 
innovation will be stifled if a rigid approach is always 
adhered to. I believe that a performance standard that has 
flexibility is the proper approach to achieving ultimately the 
best and the best practices for miner safety and health. I 
would agree with that comment.
    The Chairman. Mr. Neason.
    Mr. Neason. Absolutely. In fact, when you said it in your 
opening statement, I was so relieved, because that was 90 
percent of what everybody wanted me to come up and make clear, 
is that we are all very, very different and there has to be 
flexibility in how you present an answer to a problem. We weigh 
risks all the time and make determinations on how to best make 
sure that we manage every risk to make sure everybody gets to 
go home safe every day. If a flat answer is thrown out that 
mandates we allocate a whole bunch to this area, that may not 
fit exactly what we need to take care of everybody, and you 
might end up kind of creating a culture where you are trying to 
satisfy regulators instead of make sure that everybody is as 
safe as they can possibly be.
    So having that flexibility, and MSHA understands it and 
even in what they put out, it is pretty clear that everyone 
respects the fact that a stone mine is different from a coal 
mine and a coal mine is different from a salt mine, and that is 
absolutely critical that if anything else happens, everyone 
understands that as well.
    The Chairman. Dr. Novak.
    Mr. Novak. I will add to that, that even within coal mines 
there are significant differences between mines. Every mine has 
its unique set of conditions. If you look at the depth of the 
overburden, there are some mines that may operate as low as 
less than 300 feet where other mines are over 2,000 feet. They 
each have their different conditions in terms of the gas 
contents of the coal seams that they are working with.
    So I would second or third, I guess, what the other 
panelists have just said.
    The Chairman. Mr. Roberts.
    Mr. Roberts. You probably wouldn't be surprised I disagree 
with that for the most part. First of all, let me say that I 
think the problem is that MSHA has been way too flexible, and 
it is not a problem with them not being flexible enough. Every 
coal mine in the United States is dangerous. Anyone that tells 
you they work in a safe coal mine, they don't understand what 
they are talking about. Every coal mine in this country is 
susceptible to fires, explosions. Most are susceptible to 
methane. Most mining laws that were written in 1969 took into 
consideration that the coal miner was the highest priority in 
that mine. That is what the law says today.
    Are you suggesting to me that some mines have certain 
unique characteristics? Certainly. I have been in mines where 
water was pouring through the roof and you almost needed an 
umbrella to keep from getting soaked. I have been in mines in 
Alabama that are 2,000 feet deep, and it is pretty warm in 
those mines and millions and millions of cubic feet of methane. 
You have got to pay particular attention to that. But all coal 
mines create dust. All coal mines can give you pneumoconiosis 
or black lung. All coal mines have to have the roof supported, 
and if you don't support the roof, people get killed. Every 
coal mine in this country has electrical standards that I don't 
think are certainly unique. I think every coal mine in this 
country should comply with the Federal law, and I think when we 
start down the slippery slope of we are just a little bit 
different here, one of the problems I point out, Mr. Chairman, 
is the law is very specific that every coal mine is supposed to 
have a mine rescue team. That is what Congress said. MSHA said 
that is not necessarily true. That is another area where I 
think that the rule-making authority of MSHA has to be observed 
and taken into consideration by this body and the entire 
Congress.
    When they said we don't need a mine rescue team in every 
location because of certain circumstances, we ended up with a 
situation like we had at Sago. They didn't have a mine rescue 
team. They had to get one from someplace else.
    So we have to be cautious, I think, Mr. Chairman, when we 
start down this area.
    The Chairman. Thank you, and I will have a written question 
also that will ask more about the communications devices that 
you said were already approved. I appreciate that.
    Senator Kennedy.
    Senator Kennedy. Thank you again, Mr. Chairman.
    I just want to use my time to mention some of those that 
are here, the families that are here from mines where miners 
were lost. From the Alma Mine, we have Delores Bragg and from 
the Sago Mine, Amber Helms and Virginia Moore, Paul Cranston, 
Peggy Joyce Cohen, and John Groves; and from Jim Walters, we 
have Freida Sora and two brothers, Clinton and Doug Mullins and 
Wanda Blevins and David Blevins. So I want to recognize them 
and thank them for being here.
    Mr. Roberts, just to follow up on what the chairman asked, 
in your testimony, you've indicated that with the modernization 
of the different equipment in the mines, they haven't kept pace 
with the safety and health procedures. Could you just elaborate 
on that for us, please?
    Mr. Roberts. First of all, Senator Kennedy, and you were 
out of the room, but I would have said the same without you, I 
appreciate very much your interest in coal mine health and 
safety and standing up for workers over these many, many years.
    A word of interest for the committee, I invite them to look 
at this--there was a coal miner in Poland, on Monday, that was 
lost for 111 hours, covered up, and he can only be thankful 
that he didn't mine coal in the United States because he would 
have been dead. He had one of these devices that you have seen, 
Mr. Chairman, that sends out a signal so it can be located. 
They followed that signal, uncovered the rock off of him, and 
he walked away and just had to have water and fluid and he 
lived. That would have never have happened in the United 
States. I think that is tragic that that is the case.
    I find with great interest too in Australia, for many, many 
years they have used----
    Senator Kennedy. Let me ask you do you think those devices 
should be mandatory?
    Mr. Roberts [continuing]. Absolutely.
    Senator Kennedy. What about the rest of the panel, just 
quickly, if they could answer that? Mr. Novak, could you just 
go quickly, should they be mandatory? Quickly.
    Mr. Novak. I think if they are proven effective in the job 
that they are supposed to do, then they should be mandatory. I 
don't think that we should just accept what is available there 
and install those and require the industry to install those in 
their coal mine.
    Senator Kennedy. Well, we are not talking about ineffective 
and unhelpful kinds of things.
    Mr. Novak. I am not sure we aren't. I am not sure the 
communications systems that we feel that we need in our coal 
mines are commercially available at this point.
    Senator Kennedy. Well, that is a good issue for another 
time. We are finding out that in other places, as has been 
mentioned, they have some very important break-throughs in 
terms of technology which we are not adopting.
    Mr. Novak. But in answer to your question, yes, I think 
that communication systems are critical.
    Senator Kennedy. Thank you.
    Mr. Roberts, do you want to continue?
    Mr. Roberts. Yes. I was just going to point out, Senator 
Kennedy, a couple of points if I might. I held this up, I think 
before you came in. I said this is it for communications in a 
coal mine, and it never works in an explosion. It never works 
in a fire and it never works when the top falls. So right now, 
we are talking about a coal miner having zero communications, 
and if we can improve that to 25 percent or 50 percent, then I 
think we should do it.
    The question I have is how much longer are we going to ask 
the coal miners of the United States of America to stand by and 
wait on somebody to come along and say, well, 5 years from now, 
we will get you something, 10 years from now, we will get you 
something, 20 years from now, we will get you something. I 
think that is really what we are talking about, let us delay 
and let us not do it, and let us not spend money.
    I just want to point out one thing. I get a little bit 
frustrated here. Coal companies are making enormous amounts of 
money, Mr. Chairman, and that should not go unnoticed here 
today. Coal companies are making anywhere from $50 million a 
month in some instances. Stock prices are up. Coal prices are 
up. Spend $10 million for a long wall, $150 million for a belt 
line. But you say buy something for coal miners so they can 
live, $3,500 for another bottle of oxygen, never. Let us not do 
that, too expensive, don't mandate that.
    Senator Kennedy. Well, hopefully those days are over. Let 
me just ask, and then my time is up, I will ask President 
Roberts what could we learn from the families themselves? You 
have talked to a lot of the family members. I was enormously 
impressed, I think all of us were, by particularly the personal 
kind of tragedy that they have gone through--that is obviously 
No. 1--but second, by their knowledge of the whole industry and 
the awareness of it and that obviously if it was the wives that 
were left, their husbands had talked to them. They seemed to 
have quite a considerable kind of awareness as to some of the 
challenges.
    What have you found out from talking to them?
    Mr. Roberts. Let me say this: We have known the Jim Walter 
5 families now for 5 years, and I think they would tell you the 
same thing about us. We love them dearly. We have gone through 
a lot together. We just recently met the families from Sago and 
Alma. Of course, those were two nonunion mines, but it makes no 
difference. Coal communities where people live, we care deeply 
about one another, rely on one another. Mine rescue teams 
risked their lives to save many of those UMWA members.
    What we have learned as we learned in 2001, families want 
answers, and some of the most powerful testimony that I have 
heard ever given in this Congress was given in a House hearing 
conducted by Congressman Miller when almost the entire panel 
was family members, extremely moving. They want answers. They 
want to be part of what is going on here.
    I must say to Congress, and I would ask you to consider 
this, and to Senator Specter's credit, he was somewhat amazed 
at one of the hearings I was in that the company is part of an 
investigation. The company that is being investigated, but they 
are on the team here, so to speak. MSHA who may have 
culpability, they are on the team. So we have got everyone who 
might be culpable doing the investigation.
    The families in 2001 said, ``What about us, what role do we 
play.'' You play no role. These families from Sago will tell 
you that they have gone to their Government, MSHA, and said 
would you give us some information about what is going on here, 
and they have been told basically we will provide information, 
but they have not been provided it. They are not part of 
anything that goes on here.
    I think, quite frankly, Senator, that there is a real flaw 
in the investigative process, and every family that has ever 
been involved in this will tell you exactly that. They will 
tell you what I just told you. I invite anyone, Republican or 
Democrat, in Congress to ask them the same thing, and they will 
tell you what I just told you; but I think above all, I am very 
much moved by the fact that they just don't want this to happen 
to anybody else. They have been through this. They understand 
the pain that goes with this, the sadness that goes with this, 
the sorrow.
    If I might, I was just talking to Mrs. Blevins this morning 
who lost her husband in 2001, and she was sharing a story with 
me. She said, ``I can't hardly go to the supermarket and go by 
the bakery section of the supermarket.'' She said, ``my husband 
would go by and buy every cake in the supermarket, and we would 
have this terrible debate.'' She said, ``I just don't even look 
at it anymore.'' She said, ``I don't cook anymore.'' She said, 
``why should I cook. I don't have anybody to cook for.''
    And they came up, and the most powerful testimony I heard 
was that they don't want this to happen again. They are 
petitioning their Congress for this not to happen again. They 
are petitioning Congress to take the steps necessary that this 
doesn't happen to anybody else.
    The truth of the matter is I think we can take some very 
bold steps here, and I don't know if we are ever going to be 
able to say that you will never have someone killed or injured 
in a coal mine, but we can take the steps necessary to prevent 
this type of a tragedy again. There is absolutely no doubt in 
my mind that that can be done.
    Senator Kennedy. Mr. Chairman, my time is up. Senator Byrd 
has left. He had some questions that might be submitted at the 
appropriate time. Thank you.
    The Chairman. Absolutely.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman.
    I just want to say to the audience as I said before, now 
this panel is not controlled by the Office of Management and 
Budget. They speak what is exactly on their hearts and minds, 
and I need to make that point because I might have left the 
impression that everybody who testifies works for the 
Government. That is not true.
    I take incredibly strong exception to that concept of 
mines, that there is more dangerous work than mining. Yes. I 
guess if you are a soldier in certain parts of the world, that 
might be true, but people don't understand. In fact, what 
people need to understand is probably 99.9 percent of Americans 
have never been in a coal mine. They have never been 
underground. They have absolutely no idea. Probably 95 percent 
of West Virginians or 97 percent of West Virginians have never 
been in a coal mine, because you can't go in a coal mine just 
because you would like to go visit and see.
    I mean, it is highly dangerous and it also an environment 
where it isn't just the machinery or roof bolts working or the 
chambers of ventilation. It is not a matter of that. It is all 
of this natural material. The work of higher powers is placed. 
There are so many things that are totally out of the control of 
miners that they have to deal with. It is incredibly dangerous.
    Second, I would like to ask, Mr. Peelish, in some of your 
foundation coal mines, you have refuge chambers; is that 
correct?
    Mr. Peelish. For companies that we previously owned or 
mines, Senator, for mines that we previously owned, we did, and 
it based on primarily the length of escape. The mines were deep 
into the mountain. There was long escape, and so we felt that 
that was an appropriate means.
    Senator Rockefeller. And I congratulate you for that. When 
those were available and something happened, did miners tend to 
go to the oxygen chambers, or did they tend to still try to get 
out of the mine?
    Mr. Peelish. Fortunately they were never used.
    Senator Rockefeller. So you don't know?
    Mr. Peelish. The first and always the first principle that 
we taught was to escape, to evacuate. Even in the Mine Act in 
1969 when it says the Secretary may proscribe, I would submit, 
sir, that at that time, the professionals did not believe fully 
in rescue chambers, that escape was still the primary means 
out, or the Secretary could have been told you shall require.
    Other countries, Canada does require rescue chambers. Parts 
of Australia do not. South Africa does not. Germany does not. 
So it is not a uniform approach.
    The ability to have air, as Mr. Roberts mentioned, I think 
is a standard that is an objective standard. How we get there 
and how we meet that standard could be flexible depending on 
the type of mine, depending on the length of escape. So there 
are alternatives.
    Senator Rockefeller. Thank you. Thank you, sir.
    I want to bring up the question of rescue teams, and there 
are some here. I think it occurred to Senator Kennedy and 
Chairman Enzi and myself and Senator Isakson when we talked 
with family members in Sago, which is where we all four 
gathered, that it was not just the emotion and the knowledge, 
but I absolutely believe you could have assembled some rescue 
teams right out of those family groups, and yet Sago didn't 
have its own rescue team, and the question I want to ask is 
that, I mean, you have to wait 2 hours, 6, 7, 8 hours later, 
and you have got 1 hour's worth of oxygen? I mean, the math 
doesn't add up and the death and injuries do under 
circumstances of that sort.
    Therefore, the moral question is whether or not any mine 
that is in business ought to have its own rescue teams. That is 
not the case now and many would oppose that very vigorously. I 
am asking is that not a standard that should be the cost of 
doing business in mining?
    Mr. Roberts. As far as I am concerned, Senator, it is in 
our testimony that is absolutely part of doing business. If you 
read the act, that is what it says when making an exception 
for, I believe, mines less than 35 employees, I believe is what 
the act says; but there has been a rule issued here along the 
way that says you don't have to do that.
    One of the interesting things that has come out this, if 
you recall when Mr. Hatfield came to Congress--he is the 
president of Sago--he said he was going to get his own mine 
rescue team at Sago, and he should as well as every other coal 
company in the United States of America. I would invite 
Congress at some point in time to talk to these very brave mine 
rescue team members. I took a little bit of that training when 
I was at the mine, but I don't want anyone to believe I know 
anything about it. These people dedicate time to train. They 
are coal miners for the most part. But when you come on the 
scene and you are not familiar with the coal mine yourself, you 
have got to familiarize yourself with the mine. You have got to 
look at a map. You have to understand the ventilation. You have 
to understand everything.
    If you have got your own team of people who work in that 
mine, they already possess that knowledge from the very 
beginning, and there is a chance if you have your own mine 
rescue teams that if they get underground before the 
atmospheric conditions get to the point where you can't go. 
That is one of the things that happened at Sago. As time went 
on, it got worse. It didn't get better.
    Senator Rockefeller. I would just ask of the panel is there 
any descent from that view?
    Mr. Peelish. Senator, before a mine rescue team can enter a 
mine, it just doesn't take one team. In West Virginia, it would 
take three teams.
    Senator Rockefeller. That is true.
    Mr. Peelish. To be able to go underground.
    Senator Rockefeller. As well as the inspection that takes 
place before anybody would go.
    Mr. Peelish. Yes. The first thing you have to do is assess 
the situation. To my knowledge, the Sago and Alma Mine 
disasters were not a result of the ability to not get teams 
there in a timely manner. So we do have our teams. We provide 
coverage for other people who don't have teams, but again, this 
is a voluntary endeavor. These people are very, very special 
people. They don't do it for the money or the glory. They do it 
for the fact that people have a need and they fill that need, 
and so there is a lot here that I think this mine rescue 
professionals need to address. There is a lot of work that was 
done back in the nineties and 2002, and that work needs to be 
dusted off.
    Senator Rockefeller. I am going to interrupt, because I 
have got a couple of questions and no time.
    When I was Governor of West Virginia, and it still goes on 
today, there were mine rescue team competitions and they come 
from various States, and if you think the West Virginia 
University and Pitt play each other in football and basketball, 
you ought to see the competition that goes on in those things. 
That is ferocious. But the point is that they are trained. They 
are alert, and if they are alert for a company that can easily 
afford to have them and not available--you say they weren't a 
factor in the Sago mine. I might dispute that, and I am not 
asking for an answer from you. I am just looking at you as I 
talk. I don't buy that. I just think that that ought to be a 
part of doing business. It is like wearing a 1-hour oxygen 
belt. That should not be a part of doing business, and I feel 
strongly about that.
    One more thing, Mr. Chairman, and this is a sensitive 
subject. In the legislation which we got through the Senate 
very quickly, the Senate Finance Committee very quickly, 
because it happened to have a vehicle which it could get on, we 
put in incentives for companies to start up their own mine 
rescue teams. You say why would we do that, and there is no 
clear answer to that except that something has got to happen, 
and if we can put up a small amount of incentive for smaller 
companies to do that kind of thing, then I think we should do 
it, and if it is not necessary, that will become evident in the 
long run.
    But we have something else in there, which is very 
important, and that is we have 1-800 numbers at the State and 
Federal level that can be called by miners if they see that 
there is something wrong but they are afraid to report it, and 
I am sorry, but when we talked with the families, there were an 
awful lot of people who talked about that fear of reporting 
something within the mine which they knew was not right because 
they might be worried about consequences. I think that should 
be eliminated from the fear and psychology of the miner, and 
there are a variety of ways to do that, but we have to make 
them unafraid to call the local, State mine safety or MSHA, and 
make those anonymous phone calls so that they can have 
expressed it and so then the burden passes to the recipient.
    Does anybody disagree with that kind of concept?
    Mr. Neason. No, sir.
    Mr. Peelish. Not at all.
    Mr. Novak. Not at all.
    Mr. Roberts. Absolutely not.
    Senator Rockefeller. Do you agree that it is a problem? Do 
you agree there may be some mine mistakes?
    Mr. Roberts. I know there is.
    Senator Rockefeller. Or disasters that happen because 
people didn't dare speak up?
    Mr. Roberts. Senator, you probably have heard the same 
thing I have heard in Logan County, for instance, and West 
Virginia and other parts of the country. If the company finds 
out that you have called MSHA, they are going to find a way to 
terminate you. Now, some can say that is not true, but 
certainly the miners believe that and have been led to believe 
that.
    Senator Rockefeller. Mr. Chairman, I will leave it at that 
with very strong thanks to both panels and especially to you 
sir.
    The Chairman. Thank you very much for your participation 
too, and I do want to congratulate you on that very speedy 
amendment that you got through that a number of us co-
sponsored, and it isn't easy to get things through by unanimous 
consent, but Senator Rockefeller did that. That means talking 
to a lot of people, not just 100 Senators, but a lot of staff 
too.
    Coming from a coal mining area, I am seeing the interest in 
the Nation in coal being revived. For a long time, there was a 
decrease in interest and, in fact, a lot of ridicule of coal 
and a decline in the number of mines and the number of workers, 
and the Nation finally figured out that we are running out of 
oil. We are running out of natural gas, and the one thing that 
we have in some abundance is coal, and it has enjoyed a huge 
resurgence, and I can remember when out my way, they used to 
say that a ton of coal costs less than a six-pack of beer. That 
certainly took away a lot of interest from being able to do any 
mining, and now it has escalated quite a bit from that time, 
and I know that there will be additional interest in coal and 
the Nation will need it, and of course the only way that those 
mines operate is if there are miners, and it is extremely 
essential that they feel a degree of safety.
    We are some of the people that can do that, and there 
hasn't been a major change in the mining laws since its 
inception, and we need to make some changes on that and we work 
diligently to do it, and we will want to make it so that we not 
only can get the tools that are needed for safety into the 
mines, but that we can encourage people to invent new ones and 
get those in there too. We don't want something that is so 
flexible that we have to stick with whatever is there now, 
because I think that as this industry grows, and it will grow, 
that it will become a bigger market for innovation and 
invention.
    And, of course, the people that can do some of that the 
best are the ones who are there working every day. I go back to 
Wyoming almost every weekend and tour a difficult part of 
Wyoming, and the reason I do that is so that I can talk to the 
real people, and sometimes they have a little problem with the 
Federal Government, and all I have to say is what do you think 
we ought to do about it, and I get a nice common sense answer 
out of it, and quite often we are able to do that. A lot of 
times, it doesn't even take a Federal law to do it, so that 
people are there on the ground, and I appreciate many of you 
who are here today who may have some of those common sense 
suggestions for us.
    We do have a Web site, and anyone in the audience who wants 
to share some solutions, we hope they are solutions. They can 
share problems as well, but utilize the Web site and share 
those.
    We will keep the record open for another 10 days. Anyone's 
statement from the committee that they want to submit will 
become a part of the record, and I have some questions. Most of 
them deal a little bit more with economics and numbers, and 
those don't make good hearing fodder. So I will be submitting 
those to you and I hope you will respond as quickly as 
possible.
    With that, this hearing is adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

 Reponse to Questions of Senator Enzi, Senator Kennedy, Senator Hatch, 
                    and Senator Byrd by David G. Dye
                       questions of senator enzi
    Question 1. Would you explain the manner in which the amount of a 
civil penalty is currently determined by MSHA, and what personnel are 
involved in making that decision?
    Answer 1. The amount of a civil penalty currently ranges from $60 
to $60,000. The single penalty assessment is a flat $60 and can only be 
imposed on a 104(a) citation that is not significant and substantial 
(S&S) and that is timely abated and that occurs at a mine that does not 
have an excessive history of violations.
    The regular assessment is imposed for most violations that result 
in withdrawal, S&S citations and 104(a) non-S&S citations that are not 
timely abated or that occur at a mine with an excessive violation 
history. Single penalty and regular assessments are computer-generated; 
the violation data are transmitted electronically from the issuing 
Enforcement Office to the Assessment Office. Regular assessments are 
calculated by the computer using a formula whereby penalty points are 
assigned for each of the assessment criteria (history, size, 
negligence, gravity, and good faith) according to point tables in 30 
CFR Part 100 and then converted to a dollar amount using the penalty 
conversion table, also in 30 CFR 100.
    Special assessments are reserved for those violations that are of 
such a nature or seriousness that an effective penalty cannot be 
derived by either the single penalty or regular assessment method. 
Under 30 CFR 100.5, special assessment must be considered for certain 
types of violations. Special assessment is not mandatory for any type 
of violation. However, all violations in the following categories must 
be reviewed by enforcement personnel for special assessment:

1. fatalities and serious injuries
2. unwarrantable failure to comply
3. operation of a mine in defiance of a closure order
4. denial of right of entry
5. individuals who are personally liable under section 110(c) of the 
    Mine Act
6. imminent danger
7. acts of discrimination under section 105(c) of the Mine Act
8. extraordinarily high negligence or gravity or other unique 
    aggravating circumstances

    Special assessments are individually determined by a staff of mine 
safety and health specialists (assessors) who apply each of the six 
assessment criteria to the facts and circumstances surrounding each 
violation. MSHA has published guidelines that the assessors follow. The 
special assessment review includes an analysis of the violation and 
related documents (Special Assessment Review Form, conference notes, 
inspector's notes, accident report, sketches/photographs, and relevant 
portions of plans).

    Question 2. Do you believe that the delay between the assessment of 
an MSHA fine and its collection encourages operators to be non-
compliant with the act?
    And, are there any suggestions you might have about ways to shorten 
the time between assessment and collection and still preserve the 
parties' right to due process?
    Answer 2. This question assumes lengthy delays between the date 
MSHA proposes an assessment and the date the penalty is paid. Most 
operators pay their civil penalties voluntarily and within a reasonable 
amount of time. Over the last 5 years, 94 percent of the civil 
penalties MSHA assessed were uncontested. On average, the payments for 
uncontested cases are received within 2 months after the violator 
receives the penalty assessment. Contested citations can take many 
months to litigate and a number of penalties go unpaid.
    MSHA experienced problems with referring delinquent civil penalties 
to the Treasury Department after deploying a new computer system and 
operating procedures in 2003. This resulted in the manual referral of 
only a very few unpaid penalties to Treasury for collection in 2004 and 
2005. The Agency has resumed electronic referrals of delinquent debt to 
Treasury. The first electronic referral since 2003 was sent to Treasury 
on March 17, 2006 and the backlog of Treasury referrals was virtually 
eliminated by the end of fiscal year 2006. We have implemented new 
procedures to expedite ongoing delinquent debt referrals to Treasury so 
that all available delinquencies are referred within the timeframes 
stipulated in the Debt Collection Improvement Act of 1996.
    To help streamline the civil penalty payment process, MSHA plans to 
develop an electronic payment/contest option for use by mine operators. 
This approach will reduce the overall time for payments to reach MSHA 
and also shorten the time to process contested cases.

    Question 3. Could you give us a sense of the percentage of mines 
that currently use contract or co-op rescue teams; and what problems 
might be faced by small mines in fielding their own rescue teams?
    Answer 3. There are approximately 646 underground coal mines. There 
are approximately 140 coal mine rescue teams. Eighteen of these are 
contract teams, or about 13 percent. Approximately 97 underground coal 
mines use contract or co-op rescue teams. This equates to approximately 
15 percent of all underground coal mines. Small mines, mines with fewer 
than 20 employees, are hampered by the number of personnel available 
and the economic cost of supplying equipment to support these teams. 
Such equipment includes breathing apparatus, spare parts, testing and 
maintenance supplies, cap lamps, personal safety equipment, gas 
detectors, communications equipment, a compressor, medical grade 
oxygen, and CO2 scrubber chemicals. Team members must attend monthly or 
bi-monthly training sessions, which take them away from their normal 
mining duties.
    MSHA is implementing requirements in the MINER Act related to mine 
rescue teams.

    Question 4. How many hours of training are required to become a 
qualified rescue team member, and how long does that typically take 
someone to complete? Can you describe the physical demands of this 
service?
    Answer 4. Each mine rescue team member must have a minimum of 20 
hours of initial training. This initial training typically takes 3-4 
days to complete. Among other things, the training develops familiarity 
with the breathing apparatus they will use, and the actual use of the 
breathing apparatus for several hours. Besides the initial training, 
each team member must participate in 40 hours of refresher (hands-on) 
training annually. The physical demands required for mine rescue 
personnel are severe. The breathing apparatus alone weighs 
approximately 34 pounds. Other equipment that must be carried includes 
gas monitors, communications devices, and personal protection 
equipment. The physical requirements for mine rescue team members are 
listed in 30 CFR 49.7. Each team member must pass a mine rescue 
physical exam annually. In actual operations, team members can 
experience extreme temperatures, potential heat stress, psychological 
stress, must often carry heavy weights, and often travel long distances 
on foot or by crawling through water and mud.

    Question 5. Is MSHA conducting more or fewer inspections than 5 
years ago? Is the agency completing all the inspections it's required 
to do under the Mine Act?
    Answer 5. In both metal/nonmetal and coal enforcement, MSHA is 
conducting more inspections than 5 years ago, and has increased its 
mandated inspection completion rate since 2000.
    Metal and nonmetal (MNM). In fiscal year 2005, MNM completed 16,123 
required inspections, versus 13,252 in fiscal year 2000.
    In fiscal year 2005, MNM completed 87.7 percent of its required 
inspections; in fiscal year 2000, MNM completed 73.7 percent of its 
required inspections.
    Coal Mine Safety and Health (CMS&H). In 2005, CMS&H conducted 5,053 
mandatory inspections, versus 4,947 in 2000. Also in 2005, an 
additional 155 regular health and safety inspections above the 
statutory requirements of the Mine Act, were completed, compared to 144 
in 2000.
    CMS&H has improved its required regulatory inspection completion 
rate from 98.3 percent in 2000 to 99.6 percent in 2005.

    Question 6. A great deal of the criticism of your agency concerns 
the funding that has been kept relatively flat during the last several 
years and the number of employees has declined. Statistically, the 
number of mines and miners under your authority has actually declined 
during those same years. But I have noted that the number hours MSHA 
inspectors spend onsite inspecting coal mines has not decreased, in 
fact it increased significantly at the early part of this decade and 
has remained steady. How can MSHA use it resources to accomplish its 
mission more effectively?
    Answer 6. MSHA is constantly searching for ways to reduce 
inefficient and duplicative processes that draw resources away from its 
core mission of protecting the health and safety of miners. MSHA has 
reduced overhead costs and administrative and support staff to provide 
additional resources to its front-line staff. Additionally, MSHA is 
evaluating all non-enforcement positions as they become vacant and 
approving replacements only if there is no suitable alternative. The 
resources made available from vacated positions determined non-mission 
critical are used to support other key functions.
    For example, MSHA reorganized travel areas for inspectors by 
assigning them to inspect mines all within a specific geographic area. 
This maximized their onsite time while eliminating excess travel time 
to mine sites. Also, inspectors have been instructed to issue citations 
and terminate them if violations are immediately abated before the 
inspection is closed out. This allows mine companies to abate the 
hazardous condition immediately, and avoids having the inspector make a 
return trip to the mine at a later date to terminate the citation. All 
inspectors have the latest laptop computer technology, which allows 
them to download mine histories and mine profiles long before they 
travel to the mine site. They no longer have to check the mine files in 
the field office; they may do so at any time while they are traveling. 
MSHA will use funds included in the fiscal year 2006 Emergency 
Supplemental Appropriations Act for Defense, Global War on Terror, and 
Hurricane Recovery for increased enforcement personnel and equipment.

    Question 7. What are a miner's options under the Mine Act when 
encountering unsafe conditions?
    Answer 7. The miner can complain about the unsafe condition or 
practice to company officials, supervisors, or to the miners' 
representative. Complaining about a hazardous condition is an activity 
protected by Section 105(c) of the Mine Act. If the mine operator 
retaliates in response to the safety complaint, the miner has the 
option of making a discrimination complaint.
    The miner can complain to MSHA directly about the hazardous 
conditions. MSHA has many avenues to receive such complaints, including 
an anonymous ``hotline'' number, which will be followed up by an 
inspection. In addition, miners can make safety complaints to an 
inspector during or before an inspection either directly or through 
their walk-around representative. If a miner believes these conditions 
violate the Mine Act or its standards or present an imminent danger, 
they can make a written complaint under section 103(g) of the Mine Act, 
and an immediate inspection of the reported conditions will be made 
under section 103 (g). The miner's identity will not be disclosed to 
the mine operator, but the nature of the complaint will be provided. 
This type of complaint is also an activity protected by Section 105 (c) 
of the Mine Act.
    The miner can refuse to work in a hazardous condition that he 
reasonably believes may present a hazard to himself or others. The 
miner will be required to make reasonable efforts to communicate the 
reason for the work refusal to his employer before doing so. Such work 
refusal is also considered by the Secretary and the reviewing Courts to 
be an activity protected by Section 105(c) of the Mine Act so long as 
the miner had an objective good faith belief that the condition posed a 
safety hazard to himself or others.
    Discrimination Complaint Process. A miner has 60 days to file a 
complaint of discrimination with the Secretary of Labor. The Secretary 
has 120 days to investigate the complaint and decide if it has 
sufficient merit to be pursued. If the Secretary finds that there has 
been retaliation for the making of a complaint or a work refusal, the 
Secretary can bring the discrimination case on the miner's behalf and 
can seek a civil penalty. If the Secretary does not believe that there 
was a violation, the miner has 30 days to proceed on his own before the 
independent Mine Safety and Health Review Commission. The 
discrimination complaint process allows the Secretary of Labor to seek 
temporary reinstatement of a miner who has lost his job if he engaged 
in protected activity. The temporary reinstatement lasts until the 
investigation is completed including the course of litigation should 
the Secretary determine the case has merit after investigation.

    Question 8. Explain MSHA's Accident Investigation Process 
especially as to rights of families and limitations on family rights.
    Answer 8. MSHA's accident investigation procedures are fully set 
out in the agency Accident Investigation Handbook, which is available 
on the Web site in the FOIA Reading room. There are two procedures: one 
for normal accident investigations and another for major accident 
investigations. The fundamental steps in each are the same, but the 
time expended and the application of resources is much greater in a 
major accident investigation. Usually the primary tool of an accident 
investigation is a thorough review of the on-scene accident site. In 
addition, relevant materials involved in the accident, such as broken 
cables, brakes etc., may be sent for additional laboratory analysis. 
The mine operator and the representative of miners, if there is one, 
are full participants in this civil process designed to find out the 
causes and contributing factors in the accident so that similar 
accidents may be prevented in the future and to determine if any 
violations of Federal safety standards were involved in or contributed 
to the accident. The process also includes a statement taken of 
relevant witnesses. Prior to a recent change in policy, the operator 
and the miner's representative would be involved in that questioning 
process unless their participation was deemed harmful to that process 
or unless the participation of only the mine operator would create an 
appearance of unfairness. At Sago and Aracoma Alma, all of the 
questioning has been done by and in the presence of government 
investigators alone. MSHA has found that the public hearing process 
inhibits testimony as many witnesses decline to testify or do not 
testify fully. That is why we tried to the greatest extent possible to 
have completed our interviews before the public hearing takes place. 
Consistent with past practice, general investigatory techniques, and 
fairness, the investigators do permit each witness to be accompanied by 
a personal representative of their choosing.
    Families of deceased or injured miners have not been participants 
in accident investigations under the Mine Act or, to our knowledge, to 
most industrial accident investigations. The participation of family 
representatives presents an additional element of emotion and cross-
purposes that can make it more difficult for the miner being 
interviewed to give a full and accurate statement to investigators. In 
addition, potential safety issues and possible violations are going to 
be identified during the investigatory interviews. Premature discussion 
of those issues greatly impairs additional investigation and also 
raises issues, which have not yet been fully explored, to premature 
prominence and indeed can delay and impede finding the real causes of 
the accident. In order to perform its investigation responsibilities 
under the Mine Act effectively and accurately, MSHA evaluates all 
interviews taken, physical items obtained, tests performed, and mine 
observations made before releasing any conclusions about the causes or 
contributing causes of an accident to the families and the public.
    As part of its investigation process, MSHA does keep families 
informed of the investigation progress and listens to any comments and 
answers any questions family members may have. MSHA had meetings with 
the families of the Sago mine victims on March 9 and April 13. The 
families were given early access to the transcripts at the private 
informational meeting held on Thursday April 13. The witness statements 
were made part of the public record on May 2-4, 2006, at the joint 
public hearing. The families had a limited participatory role in being 
able to pose questions to the Chair to be asked of witnesses at the 
hearing. When the investigation is complete, MSHA will provide each 
family a personal copy of accident investigation materials.
    Please be assured that MSHA and the State of West Virginia are 
conducting a thorough and professional investigation into the Sago Mine 
Accident that includes the public hearing held on May 2-4, 2006. 
Prevention of such tragedies is our highest priority and the goal of 
the dedicated professionals in the agency. MSHA is implementing the 
requirement in the MINER Act concerning the establishment of family 
liaisons.

    Question 9. It has been mentioned here today that several notices 
of proposed rulemaking were withdrawn by the Mine Safety and Health 
Administration over the past 6 years. Can you explain what these were 
and why they were withdrawn?
    Answer 9. MSHA withdrew two proposed rules during the past 6 years:
    (1) Flame-Resistant Conveyor Belts
    This proposed rule was published in 1992 and was initially 
withdrawn from the regulatory agenda in March of 1994. It was 
reinstated on the regulatory agenda in the fall of 1994 and removed a 
second time in 2002. Improved technology associated with atmospheric 
monitoring systems and fire suppression systems has greatly reduced the 
need for increasing the flame-resistance of conveyor belt material 
beyond the current requirements for flame-retardants. Further, in the 
last 25 years all miners have been able to escape from fires that 
started in the conveyor belt entry. We are implementing the provision 
in the MINER Act related to flame-resistant conveyor belts.
    (2) Air Quality, Chemical Substances, and Respiratory Protection
    This proposed omnibus rule was published in 1989 and withdrawn from 
the regulatory agenda on September 26, 2002. The proposed rule had not 
been actively worked on for many years prior to the decision to 
withdraw it. The decision to withdraw this proposed rule was based on 
adverse case law, the staleness of the rulemaking record, and the 
quantity of resources that would have to be redirected from higher 
priority rulemakings, including diesel particulate matter, respirable 
coal mine dust, and asbestos, if the agency were to restart the 
proposed rule process (which would be necessary). While the agency 
withdrawal was challenged by the UMWA in Federal court on procedural 
grounds, the final statement of withdrawal was not challenged and 
therefore went into effect.
                      questions of senator kennedy
    Question 1. Since President Bush took office in 2001, MSHA has 
removed at least 17 mine safety items from its regulatory agenda, 
including items on mine rescue teams, breathing devices, escape routes, 
miner training, belt flammability, and investigation and hearing 
procedures. MSHA is charged with protecting the health and safety of 
the Nation's miners and the industry remains extremely dangerous, with 
30 to 40 miners killed each year. For the years 2006, 2007, and 2008, 
please list: (1) the mine safety and health standards for which MSHA 
expects to issue a notice of proposed rulemaking; and (2) the mine 
safety and health standards for which MSHA expects to issue a final 
rule. Also, please indicate which of these standards is economically 
significant (i.e., having a cost impact of more than $100 million a 
year).
    Answer 1. The following chart indicates MSHA's projected 
rulemakings for 2006-2008. None of these standards is projected to be 
economically significant. In addition to the anticipated rules in the 
chart, several new rulemakings are typically added each year in 
response to newly identified problems, emerging technologies, etc. 
Thus, the actual number of proposed and final rules may increase in 
2007 and 2008.




    Question 2. For the period of 1990-2005, please provide a list of 
final safety and health standards issued by MSHA, and indicate the year 
of issuance and whether the rule was designated as an economically 
significant rule.
    Answer 2. The chart below provides a list of MSHA's final safety 
and health rules for the period 1990-2005. None of the rules was 
economically significant. (DFR stands for Direct Final Rule; TA stands 
for Technical Amendment; IFR stands for Interim Final Rule; ETS stands 
for Emergency Temporary Standard.)




    Question 3. The Alma Mine fire has focused attention on the use of 
conveyor belt air to ventilate working areas of mines. In 2004, MSHA 
issued a regulation permitting the widespread use of belt air to 
ventilate working areas of the mine. West Virginia Governor Manchin has 
called for a prohibition on this practice. Do you intend to rescind the 
rule that permits the use of belt air in mine ventilation plans? When? 
If not, why not?
    Answer 3. The investigation at the Alma No. 1 mine is ongoing, and 
we cannot be certain of its complete findings. However, from our 
preliminary investigation it is clear that the use of belt air as 
specified in Federal safety standards did not contribute to the 
severity of the accident.
    The Aracoma Alma No. 1 belt air petition for modification was 
approved by the Agency in 2000 and contained routine requirements. The 
final belt air rule actually increased miner protection at Alma No.1 by 
including various requirements that were not included in the granted 
petition. For example, all sensors used must be listed by a Nationally 
Recognized Testing Laboratory, such as Underwriter's Lab; the trunk 
lines for the communication system and the AMS must be installed in 
separate entries; CO sensors must be installed in the intake 
escapeways; point-feeds must be monitored; and all outby (away from 
fire) sensors must automatically notify sections of alarms.
    The Belt Air Standard was adopted after years of experience using 
belt air via petitions for modifications in many underground mines. 
Given that history and what we know of the Alma Mine Fire, there is no 
basis to conclude that the final rule needs to be rescinded or in some 
way restricted. The safe use of belt air has been established over more 
than 25 years of experience granting petitions for modification 
allowing mines to use belt air safely to ventilate places where miners 
work as long as appropriate safety requirements are followed. The 
rulemaking itself started in 1983 and was finalized in 2004. There was 
appropriate notice and comment throughout the history of this 
rulemaking. The United Mine Workers of America contested the safety of 
the belt air rule in International Union, United Mine Workers of 
America v. Mine Safety and Health Administration, 407 F.3d 1250 (D.C. 
Cir. 2005). The decision by the U.S. Court of Appeals for the D.C. 
Circuit affirmed our position that MSHA did not violate section 
101(a)(9) of the Mine Act, which states that ``No mandatory health or 
safety standard promulgated under this title [Title 30] shall reduce 
the protection afforded miners by an existing mandatory health or 
safety standard.''
    The use of belt air helps ventilate places where miners work, 
reducing dangerous methane concentrations. There are also certain 
ground control advantages realized by being able to limit the number of 
development entries. These include reducing the probability of roof 
falls and rib outbursts. A recent analysis of accident and injury data 
under the prior case-by-case-approvals and MSHA's rule reveals that 
there has never been a fatality attributed to fire or air contaminants 
being carried by belt air to the face of a coal mine.

    Question 4. MSHA under President Bush withdrew a proposed rule on 
flame-resistant conveyor belts that followed years of research on the 
belt flammability and the spread of belt fires. As the Alma Mine fire 
is believed to have started on its conveyor belt, does MSHA plan on 
reinstituting rulemaking on flame-resistant conveyor belts? What is 
MSHA's timetable for such a rule?
    Answer 4. This proposed rule was published in 1992 and was 
initially withdrawn from the regulatory agenda in March of 1994. It was 
reinstated on the regulatory agenda in the fall of 1994 and removed a 
second time in 2002. Improved technology associated with atmospheric 
monitoring systems and fire suppression systems has greatly reduced the 
need for increasing the flame-resistance of conveyor belt material 
beyond the current requirements for flame-retardants. Further, in the 
last 25 years all miners have been able to escape from fires that 
started in the conveyor belt entry. We are implementing the provision 
in the MINER Act related to flame-resistant conveyor belts.
    As noted earlier, our preliminary investigation of the Alma mine 
accident has found that the use of belt air as specified in Federal 
safety standards did not cause or contribute to the severity of the 
accident. Unless specific findings of the Alma Mine accident 
investigation or other investigatory findings indicate that belt 
flammability either caused or increased the severity of the accident, 
it is unlikely that the agency would elect to change the Belt Air rule. 
However, please note that even with flame-resistant belting, fires can 
still spread along the belt line. For example, fires can break out at 
transfer points along the belt line, at drives and take-ups, from belt 
misalignment where friction is created, and from accumulation of 
combustible material along the belt line. It is critically important to 
provide an atmospheric monitoring system along the belt line, as 
required both by the Belt Air rule and by petitions to use belt air 
granted before the Belt Air rule to provide early warning of these 
fires so they can be adequately controlled. It is also important for 
the mine operator to maintain adequate housekeeping procedures to 
reduce accumulation of combustible material along the belt line.

    Question 5. At a February 4, 2003 public hearing in Lexington, 
Kentucky on MSHA's Emergency Temporary Standard on emergency evacuation 
procedures issued in response to the September 2001 Jim Walter 
Resources disaster, an Agency representative remarked, ``MSHA gave this 
rule its best . . . We feel like this is a very strong rule. One of the 
strongest the agency has ever produced.'' Is the new emergency 
regulation regarding hands-on evacuation training and the use of 
directional lifelines going to be MSHA's only new rulemaking to address 
emergency evacuation procedures or, in light of the Sago and Alma Mine 
disasters, and recent evacuation problems at the Shoal Creek Mine in 
Alabama, does MSHA plan to initiate new additional rulemaking on 
evacuation procedures? If so, will MSHA revisit concerns raised during 
the public comment period in 2003?
    Answer 5. In addition to items currently on the regulatory agenda, 
MSHA is implementing the requirement in the MINER Act that each 
underground coal mine have an approved mine emergency response plan. 
The recent mine accidents revealed several inadequacies in the 
organization of the response of mine operators during a mine emergency. 
An approved plan would address the need for mine operators and other 
responders to consistently respond to emergencies in a logical and 
well-thought-out way, in a climate where tensions are high and pressure 
for immediate action is great. By dealing with topics such as lines of 
authority, internal and external communication, mine rescue team 
interaction, etc., MSHA expects that rescues will be improved and lives 
saved. In undertaking this new initiative, MSHA will pay particular 
attention to the findings of the Sago, Alma, and Shoal Creek accident 
investigations and to the concerns raised in public comments on the 
2002 ETS following the Jim Walter Resources disaster. The approved plan 
would also address the specific requirements in the MINER Act.

    Question 6. Diesel fume exposure greatly increases the risk of 
heart disease, lung cancer and other serious illnesses. MSHA has 
suggested that it may delay full implementation of a final regulation 
limiting miners' exposure to diesel fumes, which was scheduled to take 
effect in January 2006, for as much as another 5 years. Does MSHA plan 
to require full compliance with its regulation on diesel particulate 
matter? What date will be set as the deadline for full compliance?
    Answer 6. On May 18, 2006, MSHA published a final rule, ``Diesel 
Particulate Matter Exposure of Underground Metal and Nonmetal Miners.'' 
The final rule phased in the DPM final limit of 160 micrograms of total 
carbon (TC) per cubic meter of air (160TC ug/m\3\) over a 2-
year period, based on technological feasibility information in the 
rulemaking record. On May 20, 2006, the initial final limit of 308 
micrograms of elemental carbon (EC) (308EC ug/m\3\) became 
effective. On January 20, 2007, the DPM limit will be reduced to a TC 
limit of 350TC ug/m3. The final limit of 160TC 
ug/m\3\ will become effective on May 20, 2008. Mine operators must 
continue to use engineering and administrative controls, supplemented 
by respiratory protection when needed, to reduce miners' exposures to 
the prescribed limits. The DPM final rule includes new requirements for 
medical evaluation of miners who must wear respirators and the transfer 
of miners with no loss of pay who are medically unable to wear 
respirators. As with the existing DPM limit, MSHA will enforce the 
final limits as permissible exposure limits (PEL).

    Question 7. The Sago and Alma Mine tragedies raised concerns about 
the procedures used in the investigation of mine accidents. The Mine 
Safety Act and MSHA regulations do not provide for the participation of 
victims' family members in mine accident investigations. Will MSHA 
institute policies or rulemakings to ensure the full participation from 
the outset of victim family members in mine safety investigation? Will 
MSHA propose a rule to ensure that witnesses feel free to speak 
candidly to investigators? What will MSHA do to protect witnesses to 
accident investigations and miners who report safety hazards from 
retaliation?
    Answer 7. MSHA and the State of West Virginia are conducting a 
thorough and professional investigation that includes the public 
hearing in Buckhannon, West Virginia, held on May 2-4, 2006. We 
recognize that the families, the mining community, and the public need 
to know the progress and direction of the Sago Mine Accident 
Investigation and the public hearing helped to fulfill that purpose. To 
ensure that all parties have their participation rights protected in 
the course of this investigation, the Department of Labor took the 
extraordinary step of securing an injunction to permit the United Mine 
Workers of America (UMWA) to participate in the underground, physical 
inspection of the mine after the UMWA recently filed as a 
representative of miners on behalf of two anonymous miners at the Sago 
Mine.
    MSHA and the State are interviewing witnesses in a closed-door 
interview setting. Experience has shown that this interview process 
produces the best possible record. Conducting interviews in private, 
rather than in a public hearing, has served the investigative process 
well throughout the agency's history. Indeed, the only time MSHA 
invoked its public hearing authority was in a 1999 accident 
investigation involving a Kaiser Alumina Plant in Louisiana. MSHA found 
that the public hearing process inhibited testimony as many management 
witnesses declined to testify, citing their 5th Amendment right to 
avoid self-incrimination.
    That is why we feel it is important to complete our interviews 
before the public hearing takes place.
    Interview participants are contacted prior to the interviews and 
are apprised of their rights to have a confidential interview (which 
would treat the miner as a government informant and the government 
would not disclose his name or information until required by law to do 
so), or participate in the standard closed interview and their right to 
be accompanied by a personal representative. The company is not 
participating in the interviews.
    The interviews are conducted in a private closed session, but are 
not kept secret indefinitely. At the conclusion of all the interviews, 
transcripts of the interviews will be made public and copies will be 
delivered to the families. We released the transcripts of the Sago 
accident investigation interviews before the public hearing, which 
began on May 2. In addition, the MSHA investigators have met and will 
continue to meet with the families to explain the status of the 
investigation and what will happen next in the investigation process. 
MSHA also solicits any information the families may have that could 
assist the investigators.
    Family members do not participate in the onsite investigation or 
the witness interviews. The State agency, the company and 
representative of miners at the mine do participate in the onsite 
investigation but the Federal and State investigators have conducted 
questioning alone. The goal of the accident investigation is to 
determine the causes and contributing factors to the accident and to 
determine what violations contributed to the cause or severity of the 
accident. This is important and vital work, and it is sensitive work. 
We believe the families and the rest of the mining community will 
benefit from the best professional accident investigation report we can 
produce.
    MSHA has a cadre of professional accident investigators who follow 
the agency Accident Investigation Handbook in the conduct of accident 
investigations. We have several avenues to assemble information. We 
often find that the on-scene findings greatly assist in determining 
which witness accounts are accurate. Any person who wishes may request 
to make a confidential statement. If MSHA determines that a 
confidential statement is appropriate, that person will be interviewed 
solely by MSHA at an off-site location such as his or her home and the 
statement will not be released with the other statements at the close 
of the investigation. Any person who believes he or she has been 
discharged or discriminated against because he or she cooperated with 
an MSHA investigation of any type is entitled to file a complaint of 
discrimination with the Secretary within 90 days of the offending 
conduct under Section 105(c) of the Act.

    Question 8. The Sago Mine inspection reports posted on MSHA's Web 
site reveal that in the majority of instances, the inspector determined 
that only one person was endangered by a safety violation. Isn't this a 
narrow interpretation of the breadth of the danger caused by these 
violations? Doesn't this narrow interpretation dramatically reduce the 
fines assessed against coal operators? Don't violations for 
obstructions to escape paths and the accumulation of combustible 
materials necessarily affect more than one miner?
    Answer 8. MSHA, as part of every major accident investigation, 
conducts an internal review to determine if agency performance was up 
to par and looks at ways to improve performance. The internal review 
will examine that issue and present its findings and it would be 
inappropriate to comment specifically until the investigation is 
completed. It can be said that determinations of the number of miners 
most likely to be affected is a subjective evaluation of the issuing 
inspector based on the totality of the circumstances present for that 
violation. Review of the Sago Mine's past accidents indicates a large 
number of slip and fall hazards attributed to excess accumulations on 
the mine floor and such accidents would typically most likely involve 
one person. Again, the answer to your question will be a specific area 
of inquiry in the Sago Internal Review.

    Question 9. MSHA's penalty structure factors the ability of a 
company to remain in business into its fine assessments. Isn't the 
purpose of the Mine Act and MSHA Regulations, first and foremost, to 
protect the health and safety of miners? Shouldn't business concerns be 
wholly separate from the standards for safety in our mines? Isn't the 
effect of this policy to allow unsafe mines to remain in operation 
because of financial hardship? It seems clear that the assessment at 
Sago of fines that were less than one-thousandth of the company's 
yearly profits did not provide a disincentive for the company to 
continue violating the Mine Act. If business interests are incorporated 
into the safety standards, shouldn't MSHA also factor into the penalty 
structure the level of penalty necessary to influence the behavior of a 
financially healthy mine?
    Answer 9. The Mine Act provides the six statutory criteria for 
penalty assessments, one of which is the ability of the operator to 
continue in business. MSHA has never taken the position that one 
criterion--such as the ability to pay and continue in business--is more 
important than consideration of the other five criteria. Sago did not 
receive any penalty reductions based on ability to continue in 
business. In fact, MSHA procedural rules assume that the operator can 
pay the proposed civil penalty and place the burden on the operator to 
raise the issue of ability to continue in business and to present 
evidence of that claim for MSHA to review. MSHA developed and on 
September 8, 2006 issued a proposed rule to update and improve the 
civil penalty assessment process. The proposal implements civil penalty 
provisions in the MINER Act, increases penalties, and streamlines 
assessment procedures.

    Question 10. MSHA fined the Jim Walter Resources (JWR) Mine in 
Alabama $435,000 for infractions associated with the explosion and fire 
that killed 13 miners but an administrative judge reduced these fines 
to $3,000. Are you concerned about the ability and frequency with which 
the Review Commission (Commission) reduces MSHA fines? Do you believe 
that the Assistant Secretary for Mine Safety should have the authority 
to set these fines and make them stick?
    Answer 10. We were concerned about the decision in this case, and 
where legally possible have appealed the legal rulings. We recently 
received a decision on appeal remanding the case back to the 
Administrative Law Judge for further proceedings. We hope to prevail on 
those issues, but if necessary, may take an additional appeal after the 
Administrative Law Judge issues his additional rulings.
    The Agency vigorously pursued its case against JWR. We alleged that 
certain violations existed and we sought an order imposing a civil 
penalty. The law entitles the operator to his day in court and to 
demand the Secretary prove her allegations. In the JWR case, the ALJ 
held that we did not meet our burden and dismissed the violations and 
with them the proposed penalty. The case was difficult to establish in 
that MSHA's burden was to show that the conditions we found after the 
investigation, in fact, existed prior to the first of two explosions 
and were not impacted by the eventual flooding of the mine to 
extinguish any potential fire. The ALJ held that we did not meet our 
burden of showing that volative conditions pre-existed the first 
explosion. Again, where legally possible, this decision has been 
appealed.

    Question 11. The Mine Act requires that ``mine rescue teams shall 
be available for rescue and recovery work to each underground coal or 
other mine in the event of an emergency.'' MSHA regulations permit 
rescue teams to be within 2 hours travel time and to be secured by 
contract. Does MSHA plan to require onsite mine rescue teams?
    Answer 11. MSHA is implementing the requirements for mine rescue 
teams in the Miner Act.

    Question 12. For the calendar year 2001 through the present, please 
provide copies of all original inspection reports, including any notes, 
draft inspection reports, or amendments to the report that reflect 
changes to or reconsideration of the inspectors assessments for the 
Alma Aracoma Mine.
    Answer 12. We are providing CD's of the requested information for 
calendar years 2003 through 2005, and including the period January 9 to 
February 24, 2006. Information from 2001 and 2002 is located in the 
National Archives. We will transmit this information as soon as it is 
available.

    Question 13. Australia and some U.S. metal and non-metal mines use 
Personal Emergency Devices (PEDs) that allow people outside the mine to 
send messages to miners deep underground. Even though these devices 
helped save the lives of 46 miners trapped by fire at the Willow Creek 
Mine in Utah in 1998, only a handful of U.S. mines use them. Would you 
recommend that we require these devices in America's mines?
    Answer 13. The PED system could potentially improve the state of 
communications currently available underground. In some cases, however, 
we believe that there are technological improvements on the near-term 
horizon that would provide greater benefits in an emergency. For 
example, MSHA is currently investigating and field testing several two-
way wireless communication technologies. We anticipate that state-of-
the-art systems will soon be developed and available for America's 
mines, expanding beyond but still inclusive of the PED technology. MSHA 
is also implementing requirements in the MINER Act related to 
communication systems.
    MSHA has investigated PED installations in both the U.S. and 
Australia, and identified limitations to the potential performance of 
the system in an emergency. Based on these findings, we believe that 
making use of this specific device mandatory would be problematic at 
this time. The system's performance is predicated on the installation 
of a large loop antenna. For the system to operate during an emergency, 
the loop antenna must be installed on the surface. Some mines may have 
too much overburden or not own the property rights, making surface 
installation impractical. If the loop antenna is installed underground, 
it most likely would be damaged in a fire or explosion, rendering the 
system inoperable. Our evaluation of the PED has also revealed 
performance concerns regarding ``shadow zones.'' We have found that 
there are certain places in underground mines where there is no signal 
received by the PED. We found that the system does not receive a signal 
inside of transport vehicles, near large metal objects or in remote 
areas of the mine. Additionally, the PED is a one-way paging system 
meaning that there is no way the message sender can receive 
confirmation that the message has been received.

    Question 14. Some mines use tracking systems where each miner wears 
a device that sends signals to computerized beacons placed throughout 
the mine. Such a device is reported to have saved the life of a Polish 
miner who was recently trapped for over 100 hours. Do you think we 
should require the use of such devices in mines?
    Answer 14. There is only one such device that is currently MSHA-
approved--meaning safe to bring into a mine--and that is the Mine Site 
Technologies Tracker IV Tracking System. In Australia, the system has 
successfully been used for personnel and vehicle monitoring in a number 
of metal mines, and it has just been installed into one underground 
coal mine. There are no current installations of the Tracker IV system 
at underground mines in the United States. If proposed for use in 
emergencies, the Tracker IV and the majority of other commercially 
available tracking systems have significant limitations regarding 
reliability and range that should be considered carefully prior to 
mandating the use of such technology. The operation of these devices 
depends on the installation of a wire antenna underground to provide 
the signal to the mine surface. That wire backbone would likely be 
compromised in a fire or explosion rendering tracking of the miners 
after such an event impossible.
    In addition, these tracking systems depend on the installation of 
readers (also called ``beacons'') underground. The range of these 
beacons is 500 ft. or less, and they are typically spaced in the mine 
at 3000 ft. intervals. Miners wear individual transmitters, so their 
position is known when their transmitter passes beacon A, but then not 
again until it passes beacon B. Therefore, tracking of personnel is 
limited to identifying their location within the ``zone'' between two 
beacons. If the system is disrupted in an emergency and personnel need 
to be located, this limitation would create a potential search window 
of over \1/2\ mile. The system can only register which beacon last 
recorded the wearer of the device. It could not precisely locate that 
person. As currently designed, the only benefit of the system in an 
emergency is that it could provide the last known recorded location of 
a miner prior to any fire or explosion.
    Because of these limitations, MSHA does not feel that mandating the 
Tracker IV is advisable; there are other real-time tracking 
technologies we are currently evaluating that can locate based on 
signal strength, and could provide a far closer approximation of a 
trapped miner's location. MSHA is also implementing requirements in the 
MINER Act related to tracking technology.

    Question 15. At the hearing, you expressed concern about the 
effectiveness of the communications and tracking technology currently 
available. In light of the fact that the failure to use these 
technologies poses serious obstacles to the safe rescue of miners in 
the case of an accident, do you think that we should require the use of 
such devices in mines, even if they are not 100 percent effective?
    Answer 15. MSHA does not believe that mandating the use of these 
products is the right approach to improving mine emergency response 
because of the aforementioned limitations. MSHA is currently working 
with manufacturers of other more promising and state-of-the-art 
emergency communication and tracking technologies to evaluate their 
capabilities and to expedite those proven to function underground into 
the mining industry. To that end, MSHA solicited proposals for 
solutions to the emergency communication and tracking technology 
deficiency in the mining industry and in response to that solicitation 
has received more than 80 proposals. We have evaluated those proposals 
and selected 7 that represented the most advanced technologies and have 
initiated underground field testing of these systems. The selected 
systems have the capability of providing two-way voice communications 
and/or precision tracking capability. These systems do not rely on a 
wire installed underground for their operation. Upon completion of the 
field testing, MSHA will assist the manufacturers in obtaining MSHA 
approval for such systems, as appropriate. MSHA is implementing MINER 
Act requirements related to these technologies.

    Question 16. Do you have a process in place to regularly confer 
with mine safety regulators in other countries, particularly in Canada 
and Australia, about their health and safety standards and 
technological innovations?
    Answer 16. MSHA regularly maintains contact with mine safety and 
health professionals worldwide, primarily by participation on voluntary 
consensus standard committees, interactions at conferences, and though 
affiliations with professional technical organizations. Maintaining 
this network of professional contacts is one important way that MSHA's 
Technical Support both monitors technological changes in mining and 
mining equipment and learns of innovations that may have applications 
in the mining sector. Activities that have had the most benefit in this 
regard include:

     MSHA Technical Support personnel are active in 
international and domestic professional societies, such as AIHA, ASA, 
IEEE, ISRP, NFPA, and SME; in conformance with the NTTA Act, MSHA also 
participates on committees to develop voluntary consensus standards, 
including ANSI, ASME, ASTM and others.
     MSHA engineers are currently evaluating the International 
Electrotechnical Commission's (IEC) standards for Electrical Apparatus 
for Explosive Gas Atmospheres to determine whether they are (or 
modifiable to be) equivalent to MSHA product approval requirements. The 
IEC is a worldwide organization for standardization comprising all 
national electrotechnical committees.
     Technical Support engineers also collaborated with an 
Australian manufacturer who converted a jet engine that operated on 
diesel fuel for use to extinguish mine fires. With the onsite 
assistance of the Australian team, MSHA used this technology 
successfully to help recover an underground U.S. coal miner during a 
mine fire.
     MSHA actively participates in the quadrennial 
International Mine Ventilation Conference held in various countries 
including Canada and Australia. MSHA submits technical papers and 
provides conference-planning guidance.
     MSHA also actively participates in the biennial 
International Mine Rescue Conference that has been held in different 
countries including Poland, South Africa and Australia. MSHA recently 
sent technical experts in response to requests for mine rescue and 
recovery aid and assistance by the Chilean and Mexican governments.
     MSHA attends and participates in technical conferences 
where the international mining community regularly discusses issues 
regarding ground control, longwall mining, health concerns, and other 
mining topics.
     MSHA personnel have hosted many international delegations 
involved in mining from China, Australia, the United Kingdom, and many 
others, and have assisted in providing specialized training. 
Regulations, policies, procedures, and technical ideas are discussed 
during these meetings.

    Question 17. The Sago Mine had an injury rate nearly three times 
the national average and was cited for over 200 safety violations in 
2005, yet 89 of these fines were for the minimum amount of $60, the 
fines averaged only $156, and the largest paid fine was $440. During 
the first 5 years of the Bush Administration, MSHA has imposed the 
maximum fine less than one-third as often as during the last 5 years of 
the Clinton Administration. Does MSHA support mandatory minimum 
penalties for egregious and repeat violations, like those in Senator 
Specter's proposed legislation? Does MSHA support mandatory minimum 
penalties for violations that result in death or serious bodily injury? 
Using the Specter bill as a guideline, how would MSHA recommend these 
fines be set?
    Answer 17. MSHA supports higher penalties. On September 8, 2006, 
MSHA issued a proposed rule that will make appropriate revisions to the 
penalty schedule in 30 CFR Part 100 and implement penalty provisions in 
the MINER Act. MSHA believes that these actions will result in 
appropriate civil penalties for all violations, including flagrant 
violations.
    Where appropriate, MSHA would invoke the provision in the MINER 
Act, which allows the Secretary to close a mine when the operator fails 
to pay a civil penalty within 30 days of the date on which the penalty 
became a final order of the Federal Mine Safety and Health Review 
Commission until that civil penalty has been paid.
    MSHA wishes to clarify the status of the fines levied against the 
Sago Mine for violations cited in calendar year 2005. MSHA proposed 
civil penalties totaling over $130,000 for these violations, an average 
of $657 each. The fines ranged from a low of $60 for violations that 
automatically qualify for the minimum single penalty to a high of 
$9,600.
    There are several reasons why the frequency with which MSHA 
proposes the maximum civil penalty has declined. The factor 
contributing most importantly to the decline is the concurrent 
reduction in fatal accidents.
    The maximum civil penalty allowed is generally reserved for the 
most egregious violations that often are cited as a result of fatal 
accidents. The number of fatalities declined 28 percent between the 5-
year period ending in 2000 and the 5-year period ending in 2005.

    Question 18. For each calendar year 1990-2005, for coal and MINM 
enforcement, please provide:

     The number of citations that were significant and 
substantial, the total initial penalties assessed for significant and 
substantial citations, the total final penalties assessed for 
significant and substantial citations, and the total amount of 
penalties collected for these significant and substantial violations.
    Answer. See Table A below.

     The number of citations that were for non-significant and 
substantial violations, the total initial penalties assessed for these 
citations, the total final penalties assessed for these citations, and 
the total amount of penalties collected for these citations.
    Answer. See Table A below.

     The number of incidents resulting in one or more coal or 
M/NM fatalities, the number of coal and M/NM fatalities, the total 
initial penalties assessed for citations issued as a result of 
investigations into these fatalities, the total final penalties 
assessed for these citations, and the total amount of penalties 
collected for these citations.
    Answer. See Table B below.

     The number of orders of withdrawal issued by Coal and M/
NM.
    Answer. See Table C below.

     The number of violations resulting from an unwarrantable 
failure issued by Coal and M/NM.
    Answer. See Table C below.

     The number of cases referred to the Department of Justice 
for criminal prosecution under the Mine Safety and Health Act, and the 
number of these cases subsequently prosecuted by the Department of 
Justice.
    Answer. See Table D below.

     The number of discrimination complaints filed under 
section 105(c), the number of these complaints investigated by MSHA, 
and the number of such complaints where MSHA filed a complaint with the 
Mine Safety and Health Review Commission.
    Answer. See Table D below.

     The number of FTE's for coal and M/NM inspectors, and the 
number of these positions that were filled or occupied.
    Answer.

 
------------------------------------------------------------------------
                                     Coal Inspectors*   M/NM Inspectors
------------------------------------------------------------------------
1990..............................                806                354
1991..............................                847                341
1992..............................                865                345
1993..............................                848                352
1994..............................                797                343
1995..............................                756                318
1996..............................                690                289
1997..............................                634                272
1998..............................                615                287
1999..............................                631                318
2000..............................                660                305
2001..............................                653                326
2002..............................                605                339
2003..............................                621                365
2004..............................                579                371
2005                                              584                357
------------------------------------------------------------------------

    * It is noteworthy that the coal mine inspector's average workload 
has declined. The number of coal mines has decreased 26 percent over 
the last 10 years but the number of coal mine inspectors declined only 
15 percent during that time. In the late nineties, there were 3.8 coal 
mines for each inspector. Since 2000, that workload has been reduced to 
3.4 coal mines for each inspector.
    In addition, the M/NM mine inspector's average workload has also 
declined. The number of M/NM mines has increased 16 percent over the 
last 10 years while the number of M/NM mine inspectors increased by 24 
percent during that time. In the late nineties, there were 39 M/NM 
mines for each inspector. Since 2000, that workload has declined to 36 
M/NM mines for each inspector. This change has allowed MSHA to complete 
a higher percentage of its required inspections.



                       questions of senator hatch
    Question 1. Legislation has been introduced to prohibit the use of 
belt air for ventilation. In my home State of Utah, many underground 
mines utilize belt conveyors for ventilation purposes. What are the 
safety benefits of using belt air ventilation in underground coal 
mines?
     The use of air in the belt entry to ventilate the working 
face, with appropriate conditions attached, provides a safe mining 
environment that facilitates and promotes the use of technologically 
advanced, early-warning fire-detection systems.
     Since the MSHA belt air regulations mandate the use of an 
atmospheric monitoring system with belt air, mines that use belt air 
have improved fire detection capabilities relative to those mines using 
point-type heat sensors. Total ventilation capacity increases. The 
increased ventilation can lower dangerous methane concentrations (as 
well as dilute respirable coal mine dust), thereby increasing safety.
     There are also certain ground control advantages realized 
by being able to limit the number of development entries. This reduces 
the probability of roof falls and rib outbursts.
     The use of belt air is an alternative for mine operators 
who choose to implement it. Before the regulation was in place, the use 
of belt air was permitted only after MSHA granted a petition for 
modification requesting the use of belt air.
     MSHA began granting petitions for modification to permit 
the use of belt air for this purpose in 1980. Sixty-seven petitions 
were approved between 1993 and 2001, each with a specific finding that 
the practice was safe. An additional 27 were approved between 2001 and 
the publication of the Belt Air rule in 2004, which included the major 
stipulations of previously granted petitions and rendered those 
petitions invalid with the application of a nationwide rule.
     The final belt air rule increased miner protection by 
including various requirements that were NOT included in all the 
petitions. For example, all sensors used must be listed by a Nationally 
Recognized Testing Laboratory, such as Underwriter's Lab; the trunk 
lines for the communication system and the AMS must be installed in 
separate entries; CO sensors must be installed in the intake 
escapeways; sensor spacing must be reduced to 1,000 ft. (versus older 
petition requirements of 2,000 ft. for some mines); alert and alarm 
levels for many mines were reduced from 10 and 15 ppm to 5 and 10 ppm; 
point-feeds have increased protection by requiring monitoring of the 
point-feeds; notification of sections has been improved by requiring 
all outby (away from fire) sensors to automatically notify sections of 
alarms; and lifelines are required when returns are used as alternate 
escapeways.
    Question 1 (continued). If belt air ventilation systems were 
prohibited, how many mines would have to cease operating?
    Answer 1 (continued). The prohibition of belt air ventilation 
systems would impact all 41 mines that are currently using belt air to 
ventilate a working section of the mine. It is difficult to quantify 
the number of mines that would cease operations. Mines that are heavily 
gassy (such as those in Virginia and Alabama), or are operating with 
low profit margins, would be most impacted. Mines that have begun 
operations since the promulgation of the belt air regulation would also 
be heavily impacted.
    The impact in the most severe cases could require development of 
new entries that are extremely costly. Other cases would require very 
costly increases in ventilation capacity. In some cases, the mine 
operator may choose to absorb the impact of additional costs and 
continue operations, albeit in less safe conditions, without the use of 
belt air for ventilation. In other cases, the mine operator may choose 
to operate at reduced capacity or productivity, or cease operations 
altogether. Both coal production and employment would be affected. 
Mines designed to use belt air would need to be redesigned in order to 
decrease the hazards associated with high methane liberation and 
respirable coal mine dust or those miners would face increased risk 
from those hazards. MSHA does not support such an unwarranted overall 
decrease in mine safety. The Belt Air Rule has been determined to be 
properly promulgated as a safe rule, which increases mine safety. In 
conjunction with the National Institute for Occupational Safety and 
Health, MSHA will implement provisions in the MINER Act related to the 
use of belt air in underground coal mines.

    Question 2. There has been a lot of discussion of wireless 
communication technology for use in underground mines. What are the 
limitations of this technology?
    Answer 2. In simple terms, the high frequency radio waves used in 
readily available above ground communication systems, such as walkie-
talkies, broadcast radio and TV, and cellular phone service, are 
blocked, absorbed, or reflected by rock strata and soil. In a mine, 
radio frequency communications are essentially line of sight down an 
entry with limited range due to absorption and reflections of the 
signals. The radio waves have very limited ability to propagate around 
a coal pillar. Communication range is also restricted by the need for 
low transmitting power levels to meet MSHA permissibility requirements 
for use in potentially explosive atmospheres. MSHA will implement 
requirements in the MINER Act related to communication systems.

    Question 3. I understand that there has been some concern about 
evacuation practices in the event of accidents like the two in West 
Virginia in January. Has the Mine Safety and Health Administration 
acted to address that problem?
    Answer 3.
     On January 25, 2006, MSHA published a Request for 
Information (RFI) on issues relevant to underground mine-rescue 
equipment and technology and is actively testing communication systems 
for use in underground coal mines. The record closed March 27.
     On March 9, 2006, MSHA published an Emergency Temporary 
Standard (ETS) that includes requirements for immediate accident 
notification applicable to all underground and surface mines; 
additional self-contained self-rescuer storage and training; additional 
evacuation training; and the installation and maintenance of lifelines 
in underground coal mines. Specifically, drills and hands-on training 
are now required to assure that miners are familiar with evacuation 
procedures as well as self-contained self-rescuers (SCSRs) donning and 
transferring procedures. This will also assure that miners are familiar 
with escape routes and locations of additional SCSRs that may be 
located in caches along the escapeways.
     On March 13, 2006, MSHA held a public meeting to receive 
comments on two specific topics covered in the RFI: technology used for 
underground communications and tracking of underground miners.
     MSHA held a joint MSHA/NIOSH workshop on mine escape 
planning and emergency shelters in Washington, D.C. on April 18, 2006.
     On April 20-21, 2006, MSHA cosponsored an International 
Mining Safety and Health Symposium in Wheeling, West Virginia, to 
develop strategies for mine safety, with a focus on state-of-the-art 
technologies.
     In addition, MSHA and others are still conducting a formal 
investigation to determine the causes of the two West Virginia mining 
accidents at the Sago and the Aracoma Alma No. 1 Mine. MSHA has also 
initiated internal reviews covering MSHA's actions at the Sago Mine and 
Aracoma Alma No. 1 Mine. MSHA and the State of West Virginia held a 
public hearing on the Sago accident May 2-4 in Buckhannon, WV.
     MSHA is implementing the requirement in the MINER Act that 
each underground coal mine operator have an approved emergency response 
plan.

    Question 4. Since the mining disasters in West Virginia, much has 
been written and said about mine safety. The Salt Lake Tribune, a major 
newspaper in Utah, recently reported that in 2004 and 2005, Utah mines 
received more than 2,600 citations, 936 of them classified as serious, 
and they paid close to $300,000 in fines. I've met with coal operators 
in Utah and I know that safety is their top concern. In fact, David 
Litvin, president of the Utah Mining Association states, ``The number 
one value in mining is to be safe.'' Do you think we need to evaluate 
the method for determining what is a significant and substantial (S&S) 
violation? For example, I've heard a mine that received an S&S 
violation for having toilet paper on the bathroom floor.
    Answer 4. Since 1984, the Federal Mine Safety and Health Review 
Commission has used the current legal test for determining whether a 
violation is significant and substantial. Under that test, a violation 
is S&S if the hazard contributed to by the violation is reasonably 
likely to result in serious injury or death. MSHA trains its inspectors 
to know when to apply the criteria to determine when a violation is 
S&S. Your question uses the example of a violation based on having 
toilet paper on the bathhouse floor. A violation based solely on that 
situation would not be S&S because the hazard contributed to by the 
violation would not be reasonably likely to result in injury.
    Under the Mine Act, the seriousness of a violation is one factor 
that must be considered in assessing a penalty. Other factors that must 
be considered are the operator's history of previous violations, the 
size of the operator, whether the operator was negligent in committing 
the violation, the effect of the penalty on the operator's ability to 
continue in business, and the good faith of the operator in abating the 
violation. A penalty for a violation that was not serious or reasonably 
likely to result in injury would not be increased based on the 
seriousness criterion. It might, however, be increased because of other 
criteria such as the operator's high negligence in committing the 
violation or the operator's large history of previous violations. In 
this way, operators who have tended to disregard miner safety are more 
likely to be deterred from committing future violations.
                       questions of senator byrd
    Question 1. Why did 21 coal miners have to die this year before 
MSHA took these steps?
    Answer 1. MSHA has always acted and will continue to act in a way 
that would protect the safety and health of our Nation's miners so that 
every miner returns home safely every day. While the events of this 
year are deeply regrettable, the lowering of the fatality and accident 
rates over the last 5 years is evidence of the industry's progress in 
meeting that goal. When a fatal accident occurs, MSHA fully 
investigates the incident to identify the root causes and prevent any 
other fatalities. Although the exact causes of the accidents in January 
have not yet been fully determined, MSHA has already taken action to 
prevent any future occurrences of similar tragedies. Under an emergency 
temporary standard, issued March 9, 2006, MSHA will require repetitive 
evacuation drills in the mine environment to familiarize miners with 
the routes needed to be followed in order to safely evacuate 
underground coal mines. Along those evacuation routes, called 
escapeways, MSHA will require lifelines and storage areas holding 
enough Self-Contained Self-Rescuer (SCSR) devices for each person 
underground to successfully evacuate the mine. Furthermore, each miner 
must have an additional SCSR available nearby on the mantrip and in the 
working area. After the investigations are complete, MSHA will assess 
whether any further actions may be needed.

    Question 1a. Why were rules, such as those addressing belt-air 
ventilation in 2004, addressed before these critical initiatives?
    Answer 1a. The safe use of belt air was established independently 
of the use of additional communications equipment and emergency rules. 
MSHA, through several Administrations, has more than 20 years of 
experience granting petitions for modification allowing mines to use 
belt air safely to ventilate places where miners work.
    MSHA began granting petitions for modification to permit the use of 
belt air for this purpose in 1980. Sixty-seven petitions were approved 
between 1993 and 2001, each with a specific finding that the practice 
was safe. An additional 27 were approved between 2001 and the 
publication of the Belt Air rule in 2004, which included the major 
stipulations of previously granted petitions and rendered those 
petitions invalid with the application of a nationwide rule.
    The advantages of using belt air to help ventilate places where 
miners work include reducing dangerous methane concentrations, the 
dilution of respirable coal mine dust, and providing increased 
protection through the use of Atmospheric Monitoring Systems that 
detect incipient fires before they ignite. There are also certain 
ground control advantages realized by being able to limit the number of 
development entries.
    The Arcoma Alma No. 1 belt air petition was approved by the Agency 
in 2000 and contained routine requirements. After the final ventilation 
rule in 1992, such petitions became fairly standardized. The final Belt 
Air Rule actually increased miner protection by including various 
requirements that were not included in the Arcoma Alma No. 1 petition. 
For example, all sensors used must be listed by a Nationally Recognized 
Testing Laboratory, such as Underwriter's Lab; the trunk lines for the 
communication system and the AMS must be installed in separate entries; 
CO sensors must be installed in the intake escapeways; point-feeds have 
increased protection by requiring monitoring of the point-feeds; and 
notification of sections has been improved by requiring all outby (away 
from fire) sensors to automatically notify sections of alarms.

    Question 2. When will MSHA publish its emergency standard on mine 
rescue training, accident notification, self-contained, self-rescuers, 
and lifelines?
    Answer 2. The Emergency Temporary Standard (ETS) was published on 
March 9, 2006.

    Question 2a. This emergency standard was announced 3 weeks ago. Why 
has it not yet been published?
    Answer 2a. The ETS was published on March 9, 2006.

    Question 2b. Today's Charleston Gazette reports that the White 
House is delaying the rule for emergency oxygen. Why is that?
    Answer 2b. The White House did not ``delay'' the rule. MSHA started 
work on this rule in late January and published it in early March.

    Question 2c. Why did MSHA not update these rules before the Sago 
and Alma tragedies?
    Answer 2c. Each mine accident is in its own way unique. Writing 
regulations for the entire industry requires careful consideration of 
common elements that are identified through objective investigation. A 
regulation must be specific to address either a safety or health 
hazard. For example, after the Jim Walters No. 5 accident in September 
2001, the Agency took action to address issues identified in the 
official accident report that appeared to be universal to underground 
coal mines: basically that one responsible party at each mine needed to 
be identified as being responsible for evacuating the mine in case of 
an accident, that only those persons identified as emergency personnel 
could reenter the mine, and that miners practice evacuation through 
drills. The recent accidents in West Virginia indicate that the Agency 
needs to go further to assure that miners receive the necessary 
evacuation training, have additional SCSR training under realistic 
conditions, and have additional equipment available (SCSRs and 
lifelines). Mine operators are also required to report accidents within 
15 minutes to the Agency.

    Question 3. When will MSHA publish new requirements for emergency 
communications and locating equipment?
    Answer 3. MSHA will publish new requirements for emergency 
communications and locating equipment when it identifies equipment (1) 
suitable for all, or a definable subset, of mines; (2) that can 
reasonably be expected to function and assist in a mine evacuation or 
mine rescue after a mine fire, explosion, or inundation; (3) that is 
acceptably reliable, accurate, provides coverage throughout the mine, 
and does not interfere with other communications systems; and (4) 
preferably has other desirable properties such as being two-way and 
capable of verifying receipt of message. MSHA's Directorate of 
Technical Support has, as part of its responsibilities, identified, 
evaluated, and approved suitable emergency communications and locating 
equipment--including the Personal Emergency Device (PED) and the 
Tracker Tagging System, both manufactured by Mine Site Technologies.
    The Technical Support Directorate is currently involved in an 
intensive search and evaluation of emergency communications and 
locating equipment capable of assisting in a mine evacuation or mine 
rescue. MSHA will implement provisions in the MINER Act related to 
emergency communications and locating equipment.

    Question 3a. MSHA announced 4 weeks ago that it was reassessing 
these requirements. Why has it not yet issued anything?
    Answer 3a. It takes time to reassess requirements for emergency 
communications and locating equipment. Candidate equipment must be 
identified, its properties must be evaluated and field-tested, and it 
must be shown to perform safely and effectively, or be modified to 
perform safely and effectively, in a mine environment. Because of the 
difficulties posed by an underground mine environment, most 
communications and locating equipment are not safe and effective in a 
mine environment, particularly after a fire, explosion, or inundation. 
Requiring unsuitable emergency communications and locating equipment 
could actually reduce miner protection. MSHA's Technical Support 
Directorate is currently engaged in a variety of activities to locate 
suitable emergency communications and tracking equipment. These include 
the following:
    On January 25, 2006, MSHA issued a Request for Information (RFI) on 
issues related to mine rescue equipment and technology. Included were 
emergency communications and tracking equipment. MSHA's Technical 
Support Directorate is reviewing comments and proposals arising from 
the RFI.
    On March 13, 2006, a public meeting was held at the National Press 
Club in Washington, D.C. MSHA specifically solicited technical 
presentations or written comments that discussed the following key 
issues raised in the recent Request for Information (RFI): 
``Underground Communications and Tracking of Underground Miners'' which 
was published in the Federal Register on January 25, 2006.
    A Mine Communications Partnership was formed, of which MSHA is a 
member. Other members are the BCOA, NIOSH, NMA, UMWA, USWA and the West 
Virginia Office of Miners' Health, Safety & Training. The primary goals 
of this Partnership are to establish general performance expectations 
for mine emergency communications systems; establish uniform and fair 
criteria for testing and evaluating systems; conduct in-mine tests on 
systems; and report the findings. A secondary goal is to identify gap 
areas that should be addressed through research. The first meeting was 
held on March 3, 2006.
    On April 18, 2006, MSHA and the National Institute for Occupational 
Safety and Health (NIOSH) co-hosted a workshop on ``Mine Escape 
Planning and Emergency Shelters'' at the National Academy of Sciences 
Auditorium in Washington, DC. Representatives from NIOSH and MSHA 
discussed issues involving escape planning with emphasis on evacuation 
as the first priority.
    On April 20-21, 2006, MSHA, NIOSH and the State of West Virginia 
cosponsored the International Mining and Health Safety Symposium. The 
Symposium was held at the Robert C. Byrd National Technology Transfer 
Center and the Civic Center in Wheeling, WV. The Symposium brought 
together technology developers, equipment manufacturers, the Federal 
Government, the State Government of West Virginia, organizations 
representing the mining industry and community, and other countries 
(e.g. Canada and Australia) to discuss the development, approval, and 
adoption of state-of-the-art technologies and mining methods.

    Question 3b. Why did MSHA not update these requirements before the 
Sago and Alma tragedies?
    Answer 3b. Long before the Sago and Alma Mine tragedies, MSHA's 
Directorate of Technical Support had been identifying, evaluating, and 
approving suitable emergency communications and locating equipment. At 
the time of the Sago and Alma Mine tragedies, safe and effective 
emergency communications and locating equipment, capable of functioning 
after a mine fire, explosion, or inundation, had not been identified 
for purposes of updating requirements.

    Question 4. According to a data analysis in today's New York Times, 
the Bush Administration has decreased major fines for safety violations 
since 2001. In nearly half of the cases, it has not collected the 
fines. The Times also reports that MSHA has failed in the last 2 years 
to hand over any delinquent cases to the Treasury Department for 
further collection efforts.
    a. Why are major fines for safety violations decreasing?
    b. Of the total amount of fines assessed by MSHA last year, how 
much has been collected?
    c. How many uncollected fines have been referred to the Treasury 
Department?
    d. How many uncollected fines have been referred to the Justice 
Department?
    e. How many uncollected fines have been reported to the IRS?
    Answer 4. The following table is useful for putting the number of 
penalties assessed at $10,000 or higher in perspective.
    a. During the period between 1993 and 2005, the number fluctuated 
widely from year-to-year, from a low of 21 in 1996 to a high of 158 in 
1998. The decline from 2004 to 2005 is more a reflection of the 
relatively large number of penalties assessed at the $10,000 or greater 
level in 2004. In 2004, MSHA proposed 156 penalties of $10,000 or more. 
The only other year in which more were proposed at this level was 1998 
with two additional $10,000+ cases.

                  Penalties Assessed at $10,000 or More
------------------------------------------------------------------------
                                       Number
            CY Assessed               Assessed    Current Penalty Totals
------------------------------------------------------------------------
1993..............................           93               $1,707,500
1994..............................           75                1,445,790
1995..............................           48                1,103,255
1996..............................           21                  448,750
1997..............................           53               1,241, 544
1998..............................          158                3,314,300
1999..............................           93                2,344,450
2000..............................          121                2,730,333
2001..............................          103                1,735,970
2002..............................          120                1,976,300
2003..............................           65                1,830,170
2004..............................          156                3,872,880
2005..............................           97                2,262,200
------------------------------------------------------------------------

    b. In 2005, MSHA proposed $24.8 million in civil penalties. As of 
July 25, 2006: these proposed assessments were reduced to $23.3 million 
through litigation; MSHA had received $16.3 million in payment; $4.2 
million was pending payment; and $2.8 million was still pending 
litigation.
    c. MSHA records indicate that, as of September 30, 2006, MSHA had 
referred $13.5 million of delinquent debt to the Treasury Department 
for collection. MSHA experienced problems with referring delinquent 
civil penalties to the Treasury Department after deploying a new 
computer system and operating procedures in 2003. This resulted in the 
manual referral of only a very few unpaid penalties to Treasury for 
collection in 2004 and 2005. MSHA and Treasury completed testing the 
electronic referral process on March 16, 2006, and MSHA resumed 
electronic delinquent debt referral to Treasury. The first electronic 
transfer since 2003 was sent to Treasury on March 17, 2006, and we 
intend to eliminate the backlog of Treasury referrals by the end of 
fiscal year 2006. We implemented new procedures to expedite ongoing 
delinquent debt referrals to Treasury so that all available 
delinquencies are referred within the timeframes stipulated in the Debt 
Collection Improvement Act of 1996. By the end of fiscal year 2006 MSHA 
had referred 96 percent of all delinquent civil penalty debt over 180 
days old to Treasury. To help streamline the civil penalty payment 
process, MSHA plans to develop an electronic payment/contest option for 
use by mine operators. This approach will reduce the overall time for 
payments to reach MSHA and also shorten the time to process contested 
cases.
    d. MSHA does not refer delinquent debt directly to the Justice 
Department. The Treasury Department directly refers debt to the Justice 
Department after the debt meets certain thresholds. MSHA began an 
initiative in 2005 to identify operators who routinely fail to pay 
their civil penalties. In February 2006, MSHA filed two precedent-
setting lawsuits in the U.S. District Court for the Eastern District of 
Kentucky seeking injunctions against mine operators who have 
chronically failed to pay assessed civil money penalties for violations 
of the Mine Act. On June 23rd, the District Court judge ruled that 
these cases can move forward.
    e. As a participant in Treasury's Cross Servicing/Offset Program, 
MSHA requests that Treasury submit the appropriate authorization (Form 
1099-C) for the IRS to treat uncollectible debt as income. Treasury 
reported approximately $250,000 of uncollectible debt in this category.

    Question 5. You have proposed that the Congress raise the maximum 
statutory penalty from $60,000 to $220,000.
    In 2005, how many times did MSHA assess the maximum statutory 
penalty at the Sago and Alma Mines?
    a. Why then is raising the statutory penalty a significant response 
to those disasters?
    b. The Sago Mine was a habitual violator, and never paid a fine 
higher than $400 in 2005. Why not impose minimum penalties for 
egregious violations to ensure that habitual violators do not get away 
with merely token penalties?
    Answer 5. MSHA did not issue any civil penalties at the maximum 
statutory level at either the Sago Mine or Alma Mine in 2005.
    The Secretary's request to raise the maximum statutory penalty from 
$60,000 to $220,000 was not a direct response to the Sago and Alma 
accidents. In fact, the Secretary proposed this increase well before 
the accidents. The President's 2004, 2005, 2006, and 2007 Budgets for 
the Department of Labor proposed raising MSHA's civil monetary 
penalties. A draft legislative proposal was developed in early 2005, 
which would amend Section 110 of the Mine Safety and Health Act to 
permit MSHA to assess a maximum civil penalty of $220,000 for certain 
``flagrant'' violations that ``. . . substantially and proximately 
caused, or reasonably could have been expected to cause, death or 
serious bodily injury.'' The bill is intended to enhance MSHA's ability 
to impose appropriate penalties in situations where mine workers' 
safety or health is endangered by flagrant violations of mine safety 
and health laws. The MINER Act, which was enacted on June 15, 2006, 
included a provision for civil penalties for flagrant violations 
similar to that proposed by the Secretary.
    MSHA is revising the civil penalty assessment procedures. This 
effort will implement civil penalty requirements in the MINER Act, and 
will increase penalties, and streamline the process.
Response to Questions of Senator Enzi and Senator Byrd by Cecil Roberts
                       questions of senator enzi
    Question 1. One thing we all seem to agree on is that miners in 
this country need to have better communications technology available to 
them. At the subcommittee roundtable that Senator Isakson and Murray 
hosted last week, it was apparent that while there is some technology 
commercially available that may allow miners in some mines to receive 
text messages, however, for the most part the communications technology 
we all dream of is not yet on the market for mining applications. Do 
you have any thoughts on what we can do to parlay the expertise and 
resources of NIOSH and MSHA and private industry to create and 
manufacture this technology?
    Answer 1. MSHA and NIOSH only recently focused on these compelling 
needs, and this constitutes a critical first step in achieving success. 
Establishing these objectives (two-way communications) as an immediate 
research goal of both MSHA and NIOSH will expedite a successful 
outcome. Awarding a specific Federal grant for this R&D may be 
warranted. From the subcommittee roundtable, we learned about a variety 
of technology which may have good application within the mining 
industry. In late April, there will be another opportunity to see 
equipment and technology that may be of interest to these Agencies in a 
forum that the State of West Virginia Office of Miners' Health, Safety 
and Training has organized. Also, these Government Agencies must learn 
from research performed and technology developed in and for other 
purposes. In particular, the Navy, NASA, and the Aviation industry face 
many challenges similar to those confronting the mining industry; NIOSH 
and MSHA should solicit information from those groups to see if they 
can shed light on technologies that can help make mining safer and mine 
emergency procedures safer and more effective.

    Question 2. Your organization has devoted resources to the issue of 
mine safety and we appreciate your efforts. We are also aware that 
NIOSH has functioned as a focal point for mine safety research. What 
has your experience with NIOSH been, and do you believe there are ways 
to enhance the research being done today?
    Answer 2. NIOSH has been a strong partner in researching and 
developing health and safety equipment and protections. However, 
because of its limited budget, NIOSH has not been able to pursue 
research on many needed improvements to miners' health and safety. 
Further, and too often, MSHA has failed to respond appropriately when 
NIOSH has made recommendations for improved protections based on its 
research. For example, NIOSH recommended reducing respirable dust 
exposures, but MSHA has not promulgated a rule to accomplish this (nor 
does it include such a rule among its rulemaking priorities). Likewise, 
MSHA has not required operators to use an electromagnetic tracking 
device that was approved for use by the Bureau of Mines in the 1970's. 
When NIOSH research leads to findings about ways to improve miners' 
health and safety, MSHA must quickly implement rules that would make 
use of NIOSH's work.

    Question 3. During your testimony you mentioned two technologies 
currently available that would assist in locating and communicating 
with miners in a postaccident setting. Which two technologies were you 
referencing?
    Answer 3. In addition to the electromagnetic tracking device from 
the 1970's, we know about the Personal Emergency Device (PED) which 
permits one-way text messaging, as well as more-limited signaling back 
by the miner who wears a PED unit. This equipment is in use in about a 
dozen underground mines in the United States, as well as in Australia. 
For tracking there is the ``Tracker IV'' system: for this the miner 
wears a transmitter that emits a unique signal that strategically-
located beacons can receive. This system has been used successfully in 
Australia. Miners in Poland also use tracking devices as we know their 
use lead to the successful rescue of a trapped miner about 2 weeks ago. 
We are also learning about other technology that is either available 
already or under development; some of this technology was discussed and 
demonstrated at a hearing MSHA conducted on Monday, March 13, 2006.
                       questions of senator byrd
    Question 1. What is your response to those who argue that we ought 
to delay passage of the West Virginia Delegation mine safety bill?
    Answer 1. Delay would be inexcusable. It has already been too long 
for these safety measures to be implemented. To the extent 
manufacturers may need time to produce the extra self-rescuers that 
will be needed to satisfy what the legislation requires, orders should 
be placed to encourage the speedy implementation.

    Question 2. What is happening with MSHA's interview process in 
regard to miners and family members being allowed to have 
representatives present?
    Answer 2. No miners' representatives or family members have been 
permitted to attend any of the MSHA/State investigative interviews; 
this is despite specific requests by both to attend and participate.
 Response to Questions of Senator Enzi and Senator Kennedy by Tom Novak
                       questions of senator enzi
    Question 1. As I am sure you are aware, much of overall regulation 
of workplace safety focuses on the elimination of potentially dangerous 
conditions. Some have criticized this approach because it does not 
adequately address the issue of human error or behavior that is often 
an element in workplace accidents. Do you have any suggestions as to 
how we might address this issue more directly, or completely?
    Answer 1. Human error or behavior results in the vast majority of 
workplace accidents. Even the most stringent safety regulations fall 
short of preventing these types of mishaps. Miners closely interact 
with machines in confined, unpredictable environments. Thus, workers, 
including supervisory personnel, must be well trained, constantly aware 
of their surroundings, and ever cognizant of the fact that their 
safety, as well as that of their coworkers, depends on their job 
performance and safety awareness. Human error can result from many 
sources, some of which include--inadequate training, complacency, low 
morale, impaired judgment from substance abuse, and poor work ethic.
    Modifying human attitudes and behavior is difficult; nonetheless, 
if success is to be achieved in this area of accident prevention, a 
safety-oriented culture must be constantly reinforced in all mine 
employees, not just the safety department. The entire workforce must be 
fully engaged in safety management. This safety-conscious mindset must 
originate at the highest levels of management, and safety first must 
become company policy, not just a slogan. Management must demonstrate 
that it will not tolerate unsafe work practices. On the other hand, 
management should provide incentives to reward employees for improving 
the safety of job functions and procedures for which they have direct 
control or responsibility, not only incentives based solely on 
statistics, such as lost time accidents. Mine workers must assume 
responsibility for their actions and behavior with respect to safety. 
At the same time, management must strive to provide the safest possible 
environment in which to work. New-miner training, annual retraining, 
task training, and safety meetings must not simply be formalities. Mine 
operators have the obligation to provide the best possible training, 
while mine workers should have to demonstrate their competency before 
being assigned to, or continuing in, their job functions.

    Question 2. One thing we all seem to agree on is that miners in 
this country need to have better communications technology available to 
them. At the subcommittee roundtable that Senator Isakson and Murray 
hosted last week, it was apparent that while there is some technology 
commercially available that may allow miners in some mines to receive 
text messages, however, for the most part the communications technology 
we all dream of is not yet on the market for mining applications. Do 
you have any thoughts on what we can do to parlay the expertise and 
resources of NIOSH and MSHA and private industry to create and 
manufacture this technology?
    Answer 2. The ideal mine communication system--one that offers two-
way, through-the-earth communications; a method for tracking the 
location of mine workers; safe operation in a potentially explosive 
environment; and robust construction to withstand a catastrophic event, 
such as a fire or explosion--unfortunately does not exist. However, 
there are some systems that meet various parts of these requirements. 
For the short term, I propose that an objective research study be 
initiated as soon as possible to evaluate the effectiveness, 
practicality, reliability, and limitations of existing products 
identified from a world-wide search. As part of this study, definitive 
recommendations would be made with respect to the application of these 
products for the various conditions found in U.S. mining operations. If 
necessary, MSHA would need to streamline its approval process for 
devices not already approved for use in U.S. mines. This would give a 
mining company the ability to select a system that best meets its 
specific conditions. The final outcome of the study would define 
realistic and achievable specifications for the development of an 
optimum communication system(s).
    In the 1970s and 1980s, the U.S. Bureau of Mines funded an 
extensive research program on mine communications and laid the 
scientific foundation for in-mine and through-the-earth communications. 
Numerous demonstration systems were successfully installed and 
evaluated during this period. However, only a few of these systems are 
still in use, and several of the hardware-producing companies are no 
longer in the mine communications business. The underlying physics 
necessary to develop communication systems has not changed in the 
ensuing years, but the technology to implement it has changed 
dramatically in methods, efficiency, cost, and size. For the long-term, 
I would suggest that NIOSH be given a budget to reestablish its 
communications research group and to fund external research contracts 
to develop the optimum mine communications system(s) defined in the 
preliminary study. This technology would then be transferred to any 
interested manufacturer for commercialization.

    Question 3. As you may know there has been some discussion 
regarding the use of so-called ``belt air'' for ventilation purposes. 
Could you give us your views on this practice, and, in particular its 
use in mines with ``high cover?''
    Answer 3. Belt conveyors in coal mines have been traditionally 
located in neutral airways. A neutral airway is an airway that must be 
isolated from intake and return airways by means of stoppings, which 
are walls constructed in the crosscuts connecting parallel airways. A 
neutral airway must be vented to a return airway, and its air quantity 
is regulated so that only a small quantity of air flows along the 
beltline, but this quantity must be sufficient to maintain oxygen 
concentrations above 19.5 percent and methane concentrations below 1.0 
percent. The purpose for keeping the belt entry isolated is to prevent 
intake air from being contaminated from smoke and/or carbon monoxide in 
the event of a fire along the belt conveyor. It should be pointed out 
that ventilation control devices, such as stoppings, are not airtight 
and that significant leakage occurs in coal-mine ventilation systems. 
Thus, the belt airways are not truly isolated.
    Keeping belt conveyors in isolated air splits worked well, and 
continues to work well, for many mining operations. However, in the 
early 1980's, the utilization of longwall mining matured in the U.S., 
and many mining operations moved to deeper coal seams with higher 
methane contents. These operations require significant increases in 
ventilation quantities in order to dilute methane concentrations to 
safe levels. The only way to achieve the increased requirement in 
intake air is through the development of an additional airway or 
through the use of the existing belt entry as an intake airway. The 
development of an additional, parallel airway is often impractical when 
developing longwall gate entries. With some longwall mines in the 
western U.S., the use of an additional gate entry creates a safety 
hazard because of the inability to maintain stable roof conditions 
caused by extreme rock pressures associated with the deep cover in 
mountainous terrain. As a result of these safety concerns, mining 
companies submitted Petitions for Modifications to MSHA to permit the 
use of belt entries as intake airways. These petitions require the mine 
operators to demonstrate that the proposed method provides the same, or 
greater, level of safety than afforded by the existing standard. 
Therefore, very stringent prerequisites for monitoring carbon monoxide 
concentrations in the belt airway were required before MSHA would 
approve the petitions. Many petitions were granted through the years, 
which allowed MSHA to evaluate the safety and effectiveness of using 
belt entries as intake airways for more than 2 decades. The positive 
safety record associated with this practice throughout the past 2 
decades has resulted in petition requirements evolving into the 
present-day regulations. An atmospheric monitoring system (AMS), which 
monitors smoke and carbon monoxide concentrations, is required if belt 
air is used to ventilate working sections. This system is capable of 
detecting smoke and CO even before a fire occurs. A sampling of the 
regulations includes the following:

     An operator, located on the surface, must constantly 
monitor and promptly respond to all AMS signals.
     Two-way voice communications must be maintained between 
the AMS operator and each working section, with other areas designated 
in the approved emergency evacuation and firefighting program.
     The AMS must automatically provide visual and audible 
signals at the designated surface location for any interruption of 
circuit continuity and any electrical malfunction of the system.
     The AMS must automatically provide visual and audible 
signals at all affected working sections when the detection level at 
any sensor reaches the alarm level.

    The regulations further specify the locations of sensors, 
maintenance, examination, testing, calibration, detection levels, and 
training of personnel.
    In contrast to these stringent requirements, mines that maintain 
belt entries as neutral splits are not required to use atmospheric 
monitoring systems. I feel that mines that utilize belt air as intake 
air in conjunction with atmospheric monitoring systems are actually as 
safe as, if not safer than, mines that isolate the belt without a 
monitoring system.
                      questions of senator kennedy
    Question 1. How can we address this shortage of people graduating 
with degrees in mining? Do you recommend requiring degrees and for our 
mine supervisors and managers like those in Australia? If so, how can 
we go about making sure that we have enough candidates who meet these 
requirements?
    Answer 1. In my testimony before the Senate Committee on Health, 
Education, Labor, and Pensions, I stated that only half of the mining-
engineering programs that existed 20 years ago exists today. There are 
two reasons for this dramatic decline--low enrollments and lack of 
research funding. Dramatic declines in enrollment coincided with the 
downturn in the U.S. mining industry, which began in the early 1980s. 
Unfortunately, a downward spiral in research funding also occurred 
during this same period. Colleges and universities do not tolerate low 
enrollments for extended periods, and research universities expect 
mining-engineering departments to maintain research programs that are 
comparable with other engineering departments. Thus, during the past 20 
years, foundering mining programs were continually closed. Even if 
existing mining programs remain open, their outlook remains dismal 
without strong research funding, which is required to produce the 
Ph.D.'s necessary to fill future professorships. The major issue is the 
sustainability of mining engineering programs.
    The bright spot is that the mining industry has recently 
experienced a remarkable turnaround, which has caused an incredible 
demand for mining engineers. All indicators signify that this demand 
will remain strong for at least the next 10 years. As a result, 
enrollments should significantly grow over the next few years. I am 
hopeful that this increase in enrollment will provide the engineers 
needed to safely design, supervise, and manage our country's mines. 
However, the lack of research funding has not changed, and mining-
engineering departments remain at risk even with strong enrollments.
    The committee cannot really address issues of enrollment, which is 
dictated by market conditions. However, the committee can help ensure 
the future of mining engineering education by supporting mine-safety 
research funding for universities. This support will contribute to mine 
safety in two separate ways. First, the support will provide the 
research necessary to find solutions to the complex issues of mine 
safety. Second, research funding will sustain the viability of mining 
engineering programs that will produce highly-trained future engineers 
to design and operate our mines safely.
    I recommend that this research be administered through NIOSH's 
Office of Mine Safety and Health Research, or a newly created institute 
based on this Office. The newly formed Mine Safety Technology and 
Training Commission (discussed in the response to the following 
question), with representatives from NIOSH, UMWA, industry, and 
academia, could be used to determine and prioritize the research needs 
of the industry.
    In response to the second part of your question, I am not willing 
to suggest that mine managers and supervisors have mining engineering 
degrees. Even though many mine managers have degrees, this requirement 
would preclude other qualified individuals from holding these 
positions. Individual States presently certify section foremen, general 
mine foremen, and chief electricians through a combination of work 
experience and written examinations. The length of experience is 
typically reduced if an applicant has a mining engineering degree. 
Therefore, at present time, I would not recommend that a degree 
requirement be implemented.

    Question 2. What recommendations would you have to improve the 
collaboration between NIOSH, academia, industry, and the UMWA on 
appropriate avenues for health and safety research?
    Answer 2. The most effective method to improve collaborations 
between NIOSH, academia, industry, and the UMWA is through the 
formation of a multifaceted committee where all stakeholders are 
represented. This has already occurred through the formation of the 
Mine Safety Technology and Training Commission. This commission 
consists of the following members:

     NIOSH--Dr. Jeffrey Kohler, Associate Director for Mining 
and Construction.
     Academia (Mining Engineering)--Dr. Larry Grayson, 
Professor and Chair, University of Missouri--Rolla and Dr. Thomas 
Novak, Professor and Department Head, Virginia Tech.
     Academia (Public Policy)--Dr. Amy Donahue, Assistant 
Professor, University of Connecticut.
     Industry (Management)--Brett Harvey, president and CEO, 
CONSOL Energy, Inc. and Anthony Bumbico, Corporate Safety Director, 
Arch Coal, Inc.
     Industry (Mine Rescue Training)--Mark Beauchamp, 
Twentymile Coal Co. and H.F. Webb, Waste Isolation Pilot Plant.
     UMWA--Cecil Roberts, president, UMWA
     Consultant--Stanley Cohn, executive vice president, 
Concepts to Operation, Inc.

    This commission will study existing and new technologies, as used 
in various industries, to determine which can improve the protection of 
underground coal miners. Through information-gathering meetings, the 
commission will examine the conditions under which various technologies 
and training procedures can significantly increase the odds of survival 
for miners in emergency situations. The commission held its first 
meeting on March 2, 2006 in Washington, DC., and its second meeting is 
scheduled for April 27, 2007 at NIOSH's Pittsburgh Research Laboratory. 
The commission plans to have a report prepared by June 30, 2006.

    Question 3. What do you expect in the future for mine 
communications? New communications systems like the PED are widely used 
in other countries like Australia, where can the United States look to 
find the most modern, effective and versatile communications systems?
    Answer 3. The ideal mine communication system--one that offers two-
way, through-the-earth communications; a method of tracking the 
location of mine workers; safe operation in a potentially explosive 
environment; and robust construction to withstand a catastrophic event, 
such as a fire or explosion--unfortunately does not exist. However, 
there are some systems that meet various parts of these requirements. 
For the short term, I propose that an objective research study be 
initiated as soon as possible to evaluate the effectiveness, 
practicality, reliability, and limitations of existing products 
identified from a world-wide search. As part of this study, definitive 
recommendations would be made with respect to the application of these 
products for the various conditions found in U.S. mining operations. If 
necessary, MSHA would need to streamline its approval process for 
devices not already approved for use in U.S. mines. This would give a 
mining company the ability to select a system that best meets its 
specific conditions. The final outcome of the study would define 
realistic and achievable specifications for the development of an 
optimum communication system(s).
    In the 1970s and 1980s, the U.S. Bureau of Mines funded an 
extensive research program on mine communications and laid the 
scientific foundation for in-mine and through-the-earth communications. 
Numerous demonstration systems were successfully installed and 
evaluated during this period. However, only a few of these systems are 
still in use, and several of the hardware-producing companies are no 
longer in the mine communications business. The underlying physics 
necessary to develop communication systems has not changed in the 
ensuing years, but the technology to implement it has changed 
dramatically in methods, efficiency, cost, and size. For the long-term, 
I would suggest that NIOSH be given a budget to reestablish its 
communications research group and to fund external research contracts 
to develop the optimum mine communications system(s) defined in the 
preliminary study. This technology would then be transferred to any 
interested manufacturer for commercialization.

    Question 4. What recommendations would you have to improve the 
ventilation of underground coal mines? Should the industry heed the 
call of West Virginia Governor Joe Manchin and abandon the practice of 
ventilating mines with conveyor belt air?
    Answer 4. I applaud Governor Manchin's quick response to the mine 
disasters that recently occurred in his State of West Virginia. When a 
disaster occurs, human nature dictates the desire to take immediate 
actions in an attempt to prevent the reoccurrence of a similar 
disaster. In a rush to implement new and well-meaning initiatives, 
however, we must be mindful not to unintentionally neglect the true 
effectiveness and associated repercussions of these initiatives. I feel 
that Governor Manchin has overreacted by calling for the abandonment of 
the practice of ventilating working sections with belt air.
    Belt conveyors in coal mines have been traditionally located in 
neutral airways, which are airways isolated from intake and return 
airways by means of stoppings constructed in the crosscuts connecting 
parallel airways. The purpose for keeping the belt entry isolated is to 
prevent intake air from being contaminated from smoke and/or carbon 
monoxide in the event of a fire along the belt conveyor. However, it 
should be noted that ventilation control devices, such as stoppings, 
are not airtight and that significant leakage occurs in coal-mine 
ventilation systems. Thus, belt airways are not truly isolated.
    Keeping belt conveyors in isolated air splits worked well, and 
continues to work well, for many mining operations. However, in the 
early 1980s, the utilization of longwall mining matured in the United 
States, and many mining operations moved to deeper coal seams with 
higher methane contents. These operations require significant increases 
in ventilation quantities in order to dilute methane concentrations to 
safe levels. The only way to accommodate the increased requirement in 
intake air is through the development of an additional airway or 
through the use of the existing belt entry as an intake airway. The 
development of an additional, parallel airway is often impractical when 
developing longwall gate entries. With some longwall mines in the 
western United States, the use of an additional gate entry creates a 
safety hazard because of the inability to maintain stable roof 
conditions caused by extreme rock pressures associated with the deep 
cover in mountainous terrain. As a result of these safety concerns, 
mining companies submitted Petitions for Modifications to MSHA to 
permit the use of belt entries as intake airways. These petitions 
require the mine operators to demonstrate that the proposed method 
provides the same, or a greater, level of safety than afforded by the 
existing standard. Therefore, very stringent prerequisites for 
monitoring carbon monoxide and smoke concentrations in the belt airway 
were required before MSHA would approve a petition. Many petitions were 
granted through the subsequent years, which allowed MSHA to evaluate 
the safety and effectiveness of using belt entries as intake airways 
for more than 2 decades. The positive safety record associated with 
this practice throughout the past 2 decades has resulted in petition 
requirements evolving into the present-day regulations. An atmospheric 
monitoring system (AMS), which monitors smoke and carbon monoxide 
concentrations, is required if belt air is used to ventilate working 
sections. This system is capable of detecting smoke and CO even before 
a fire occurs. A sampling of the regulations includes the following:

     An operator, located on the surface, must constantly 
monitor and promptly respond to all AMS signals.
     Two-way voice communications must be maintained between 
the AMS operator and each working section, with other areas designated 
in the approved emergency evacuation and firefighting program.
     The AMS must automatically provide visual and audible 
signals at the designated surface location for any interruption of 
circuit continuity and any electrical malfunction of the system.
     The AMS must automatically provide visual and audible 
signals at all affected working sections when the detection level at 
any sensor reaches the alarm level.

    The regulations further specify sensor locations, maintenance, 
examination, testing, calibration, detection levels, and training of 
personnel.
    In contrast to these stringent requirements, mines that maintain 
the belt entries as neutral splits are not required to use atmospheric 
monitoring systems. I feel that mines that utilize belt air as intake 
air in conjunction with atmospheric monitoring systems are as safe, if 
not safer, than mines that isolate the belt without a monitoring 
system.

    Question 5. Is there a way to improve the way that inactive areas 
of mines are sealed off, so methane explosions and oxygen contamination 
are minimized?
    Answer 5. The construction of a practical seal that is guaranteed 
to be airtight with changes in barometric pressure over an extended 
period is unlikely. One method to help ensure a safe environment is to 
continuously monitor the air behind the seal. However, even this method 
has its limitations since only the area in the immediate vicinity of 
the sampling point would be monitored.
    Present regulations require seals to withstand a static pressure of 
20 pounds per square inch. Preliminary information reported from 
International Coal Group's investigation of the Sago Mine explosion 
reveals that the explosion pressures greatly exceeded the 20-psi value. 
It is obvious that research into the construction and the strength of 
seals is necessary. In addition to evaluating different materials, 
various construction techniques, such as a horizontal-arch 
configuration (similar to a dam), need to be investigated to improve 
the strength of a seal. The concept of buffer zones between sealed 
areas and active workings should also be investigated, along with 
methods for keeping sealed areas inert.
       Response to Questions of Senator Enzi and Senator Kennedy 
                           by Michael Neason
                       questions of senator enzi
              American Society of Safety Engineers,
                                     Des Plaines, Illinois,
                                                    March 17, 2006.
Hon. Michael B. Enzi, Chairman,
Hon. Edward M. Kennedy,
Ranking Minority Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC.

    Dear Chairman Enzi and Senator Kennedy: On behalf of Michael 
Neason, who testified for the American Society of Safety Engineers 
(ASSE) at the Committee on Health, Education, Labor, and Pension's 
March 2, 2006 hearing on the State of Mine Safety and Health, please 
find below his direct answers to the separate questions provided by 
you. Your interest in Mr. Neason's views is greatly appreciated by ASSE 
as well as Mr. Neason, as is the overall leadership your committee is 
providing in finding better directions to making this Nation's mines 
safer workplaces.
    If Mr. Neason or ASSE can provide any additional assistance or 
further clarification, we hope that you will not hesitate to ask. 
Below, please find Mr. Neason's responses to your questions.

    Question 1. As I am sure you are aware, much of overall regulation 
of workplace safety focuses on the elimination of potentially dangerous 
conditions. Some have criticized this approach because it does not 
adequately address the issue of human error or behavior that is often 
an element in workplace accidents. Do you have any suggestions as to 
how we might address this issue more directly, or completely?
    Answer 1. Our internal trend analysis studies would certainly 
support your concern that behavior issues are often behind many of the 
injuries in mines. Nearly 80 percent of our injuries happen during 
unscheduled (or ``breakdown'') maintenance, and practically all of 
those injuries are the result of an employee taking an unnecessary 
risk.
    It has taken a great deal of work over the years to advance our 
program to the point where physical hazards are routinely identified 
and corrected before they can cause an accident. As a result of these 
efforts, our facilities are more efficient, more profitable and we are 
better able to retain good employees.
    In other words, our health and safety program has advanced 
considerably since 1977. MSHA's has not kept pace with this 
advancement. While the MSHA inspectors I have walked with seem to 
understand this reality, their responsibilities under the Mine Act 
limit their ability to focus adequately on the areas that truly need 
attention. As such, MSHA's compliance activity routinely fails to 
consider either accident trends or risk assessments. For the most part, 
the citations that are issued do not correlate with fundamental 
controls commonly acknowledged as the primary causes of most injuries.
    To address the issue, MSHA should de-emphasize the ``gotcha'' 
enforcement of broad standards in favor of emphasizing positive 
initiatives such as their ``Small Mines Office,'' ``Educational Field 
Services'' and ``S.L.A.M.'' programs. With the current focus, operators 
are encouraged to dedicate resources to satisfying regulators as 
opposed to protecting their employees.

    Question 2. How often does MSHA come to the mines you supervise? 
What is your evaluation of the efficacy of MSHA's inspection policy?
    Answer 2. In 2005, MSHA inspected the 21 mines I supervise 45 
times. We were issued a total of 38 citations with all but 5 being 
marked as ``not significant or substantial.'' Each inspection took 2 to 
3 days to complete. Essentially, MSHA dedicated over 100 inspection 
days to a solidly performing operator who maintains an incident rate 
less than half of the national average.
    The difficulty with MSHA's inspection program is that it denies 
them the flexibility to allocate resources where they are truly needed. 
There should be some means for an operator to earn a ``good performer'' 
status that would allow MSHA to inspect the facility less often or 
possibly to conduct an abbreviated inspection. This would improve miner 
safety in two ways. First, MSHA would free up resources enabling them 
to focus on operators who could benefit from greater oversight. Second, 
it would provide an incentive for well-meaning operators to tighten 
safety standards in an effort to earn their ``good performer'' status.
    There is something fundamentally wrong when a safely run quarry is 
constantly scrutinized by one Federal Agency (MSHA) while a shoddily 
maintained asphalt plant on a neighboring property has never even seen 
an OSHA inspector. While the Mine Act demonstrates that the Government 
values a quarryman's life above that of a construction worker, it is a 
tremendous disincentive to the conscientious quarry manager to bear the 
brunt of multiple annual inspections that do not correspond to saving 
lives or preventing injuries.

    Question 3. One thing we all seem to agree on is that miners in 
this country need to have better communications technology available to 
them. At the subcommittee roundtable that Senator Isakson and Murray 
hosted last week, it was apparent that while there is some technology 
commercially available that may allow miners in some mines to receive 
text messages, however, for the most part the communications technology 
we all dream of is not yet on the market for mining applications. Do 
you have any thoughts on what we can do to parlay the expertise and 
resources of NIOSH and MSHA and private industry to create and 
manufacture this technology?
    Answer 3. I would like to believe that this issue is somewhat more 
complicated than a simple matter of ``supply and demand,'' but it most 
likely is not. With all of the pressure to have instant and effective 
communications equipment for all miners in all mines, we have to 
prudently determine the most appropriate way to create the demand for 
technology that will actually improve safety in each application.
    In this era when communications products are actively being 
developed, it makes the most sense to provide a positive incentive for 
mines to experiment with technology, or perhaps a highly managed set of 
pilot projects through a cooperative effort between NIOSH and MSHA. I 
am afraid that the effect of a regulatory standard mandating the use of 
advanced communication equipment would be to encourage operators to 
adopt the cheapest system that would meet the minimum requirements. 
This would stifle the development process and leave the miners to rely 
on sub-standard equipment. Better to first encourage experimentation. 
Then, once this practical experimentation yields a pool of options that 
have proven successful in a variety of applications, we could consider 
mandating systems with specific elements of functionality.
                      questions of senator kennedy
    Question 1. Since your testimony acknowledges that some mines have 
inadequate breathing protections and obsolete communications systems, 
while other mines go beyond what is required, shouldn't we require all 
mines to aim high and meet a high standard for safety?
    Answer 1. As a safety professional, I wholeheartedly agree that all 
employers should be required to meet a high standard for safety. The 
trouble with this particular problem is that there is no existing 
technology that can fundamentally perform to the degree necessary to 
satisfy any meaningful standard that would be written.
    As I indicated above, I fear that a regulatory standard at this 
point might actually be counter-productive. If we require operators to 
implement underdeveloped communications technology, they will be 
inclined to select the most cost effective option that meets the 
broadest interpretation of the standard. At that point, the demand for 
the technology drops off and development will stall. It might be more 
prudent to begin with positive incentives for operators to implement 
advanced communications systems. This will have the effect of driving 
the demand for such systems, which will, in turn, encourage both 
competition and technological advancement. Once proven systems are 
identified, a more effective standard can be written that will provide 
a higher level of protection to miners.

    Question 2. With regard to your suggestion that onsite rescue team 
and 15-minute accident notification requirements may be unachievable 
for small mines, wouldn't you agree that the life of a miner is equally 
valuable, whether he works in a small mine or a large mine? Do you have 
suggestions about how we can help small mines comply with strong safety 
protections without exposing their miners to greater risk?
    Answer 2. As many of the mining operations I oversee employ less 
than 12 people, I appreciate your sentiment that miners deserve the 
same level of protection whatever the size of their mine.
    The 15-minute notification requirement, however, is unworkable no 
matter the size of the operation. MSHA is not a first responder and the 
first critical moments after an accident should not become even more 
complicated than it already is with a reporting requirement that 
detracts from immediate response and care or miners.
    In regard to onsite mine rescue teams, it is important to recognize 
the key element that makes these teams so special. That is the fact 
that every team member is a dedicated volunteer who willingly risks his 
personal safety to rescue another miner in a very hazardous 
environment. Small operations may not have six able-bodied employees 
who are willing to accept such a risk, much less endure the harsh 
physical requirements of the job.
    As such, the current consortium option actually offers the best 
possible response in the event of an emergency. To improve the 
response, however, I would suggest a provision that mandates any group 
exercising this option to hold practical rescue training exercises in 
each mine they will cover. Further, I support the idea of reducing the 
current requirement of locating teams within 2 hours ground travel to 
require teams to locate within 1 hour of the mine to which they are 
responding.

    Question 3. In countries such as Australia, mine operators are 
required to perform a detailed and rigorous risk analysis before they 
begin operations. Is this kind of risk analysis done in any of the 
mines you are familiar with? Should this kind of comprehensive and 
continuing risk analysis be required in American mines?
    Answer 3. I am admittedly not familiar with the Australian 
requirement referred to in the question. In the United States, however, 
MSHA enforces several different standards that require the examination 
of working places, ground conditions, tools and mobile equipment each 
shift and again as conditions warrant.
    Risk assessments themselves are very detailed and structured 
exercises that give tremendous insight on the best allocation of 
resources to provide the highest level of protection for an 
organization's employees, the public and the environment. Progressive 
companies employ this technique at measured intervals to ensure that 
their controls are still appropriate. My company, Hanson Aggregates, 
employs a formalized risk assessment program for our mining operations.
    The Job Safety Analysis (JSA) may be a more appropriate tool to use 
in addition to the examinations already required. This is a technique 
for identifying each step of a job and addressing the potential hazard 
of each step. MSHA is currently promoting a form of this in their 
``S.L.A.M.'' campaign, which encourages miners to Stop, Look, Analyze & 
Manage hazards.

    Question 4. With regard to your concern that different mines and 
industries face different health and safety risks, wouldn't you agree 
that in an accident in any underground mine, in order to ensure the 
safety of the miners, miners must be able to communicate with rescuers, 
be located, have sufficient oxygen, and have access to either an area 
of refuge or an escape route?
    Answer 4. More importantly, it is critical to first have a warning 
system to alert miners that they should evacuate the mine or implement 
the proper emergency response plan. Beyond that step, all mines will 
have very different needs that will be primarily dictated by their 
ventilation and egress.
    While it is true that the safety assurances presented in the 
question are important in some entrapment scenarios, the degree to 
which they would be needed and the means by which they should be 
provided are still very different. Miners in a 36-inch coal seam will 
have an immediate need for breathable air that miners in a 36-foot high 
stone mine will most likely not have. Those who work in single leveled 
horizontal mines will not have the complex escape issues that miners in 
a vertical shafted multiple level facility will. Mandating controls 
that do not fit individual applications will have a negative impact on 
safety.
    Again, thank you for including Mr. Neason in the March 2 hearing. 
If there is anything ASSE can do to support the committee's efforts, we 
trust your staff will not hesitate to ask.
            Sincerely,
                                      David L. Heidorn, JD,
                          Manager of Government Affairs and Policy.
                                 ______
                                 
       Response to Questions of Senator Enzi and Senator Kennedy 
                           by Michael Peelish
                       questions of senator enzi
    Question 1. As I am sure you are aware, much of overall regulation 
of workplace safety focuses on the elimination of potentially dangerous 
conditions. Some have criticized this approach because it does not 
adequately address the issue of human error or behavior that is often 
an element in workplace accidents. Do you have any suggestions as to 
how we might address this issue more directly, or completely?
    Answer 1. While MSHA and the industry cannot abdicate their 
responsibility to control potentially hazardous conditions, a strong 
focus must be paid to development of the individual employee's safety 
consciousness and individual accountability for workplace safety. 
Research has shown that changing behaviors will reduce serious injuries 
and fatalities. DuPont, a world leader in safety, estimates that 90 
percent of all accidents are caused by unsafe acts. With the dynamic 
and changing face of this industry's workforce, instilling these basic 
principles in our newer employees is especially critical at this 
juncture.
    To change behaviors requires a more systematic approach to 
workplace safety and health. For instance, management must install a 
methodical approach to reviewing the mechanisms of injuries in planning 
work tasks. For any task, there will be risks. If a plan is developed 
to address those risks before the job is started, then the probability 
of injury is reduced. The mechanism of injury can be eliminated or 
barriers constructed to prohibit the mechanism from causing injury. How 
can this be done? For some operators, systematic approaches are already 
incorporated in the work tasks. However, this is not true for many 
operators because they do not have the skills or competencies to 
address these issues. Requiring operators to have a more behavioral-
based safety program is paramount versus the current reactive programs 
concerned with compliance. Current Part 48 safety training does not 
address behavioral-based safety training. Part 48 could be revised to 
eliminate repetitive and wasteful training to require operators to 
train its miners in behavioral-based safety training. For instance:

     Redefine what should be required for hazard training;
     Revamp annual refresher training to be performance based 
versus the current mundane prescriptive training;
     Revise task training to address more of the behavioral 
safety performance and less of the ``paper chase'' safety training 
required for each task or piece of equipment. Now, task training is a 
regulation used to second-guess an operator during a postaccident 
review;
     Revamp how contractors are hazard trained at a mine based 
on the tasks a contractor is performing such as mine laborer, 
specialized skill sets for specific jobs performed such as seal 
construction or roof gluing, and/or work functions such as tire 
maintenance or drilling and blasting.

    Each of these tasks requires a different type of training versus 
the one-size fits all training currently mandated by the regulation.
    The other aspect to improving behaviors is accountability at the 
miner, management, and MSHA levels. The accountability of miners and 
management is management's prerogative. The accountability of MSHA can 
only be achieved based on the improved incidence rates at mines.
    In the mid-1990's, Foundation Coal's predecessor was involved in a 
MSHA and industry ``informal partnership'' effort to reduce surface 
haulage accidents. The approach taken by a small team was to create 
best practices. In all, the team developed 20 or so best practice cards 
involving large truck blind spots, lighting on waste dumps, seat belt 
use, and dumping on waste dumps. These laminated cards were shared 
primarily with small operators who did not have the resources to create 
such programs on their own. In some cases, better technology was part 
of the solution. The bottom line was that valuable information was 
available to operators.
    Another approach is the SLAM (Stop-Look-Analyze-Manage) program 
initiated by MSHA last year which was developed in a mine formerly 
owned by Foundation Coal's parent in Australia and which focuses on 
individual's taking responsibility and accountability for risks 
assessments. Similar programs are in place elsewhere in the industry. 
The SLAM program was well-intended, however, this program has not taken 
off because MSHA's approach is to focus on the mine not on the miner. 
Intuitively, many folks within MSHA believe in behavioral safety 
training, however, the Mine Act does not permit MSHA to effectively 
follow through on this concept. For instance, MSHA is obligated to 
inspect every roof bolting machine for compliance but it is not 
obligated to observe any roof bolter for safe work performance. If 
prevention of injuries is the Agency's objective, it must be allowed to 
direct its resources and attention to innovative approaches that 
increase the likelihood of reducing accidents rather than remaining 
wedded to the conventional inspection regime.

    Question 2. You are a lawyer as well as a mining engineer. One of 
the proposals that have been put before this committee would prohibit 
the Mine Safety and Health Review Commission from ``decreasing'' any 
civil penalties for ``flagrant'' or ``habitual'' violations. Does this 
provision raise any concerns with regard to the Constitutional right to 
due process in your mind?
    Answer 2. Such a proposal strikes me as at odds with fundamental 
notions of fairness and due process. It removes any opportunity for 
operators to a fair and meaningful hearing on whether the proposed 
penalty is supported by the underlying facts of a citation issued by 
MSHA. In short, operators would have no right to a hearing on matters 
related to the proposed sanction associated with an alleged citation, 
i.e., the civil penalty. Such an approach would make civil penalties, 
in certain cases, ``unreviewable'' at the request of the operator, yet 
remain subject to increase at MSHA's request or upon the commission's 
own initiative.
    The very notion that sanctions proposed by an Agency are insulated 
from review by an independent tribunal is, as far as we are aware, 
unprecedented. For all practical purposes, this approach simply 
deprives a charged party with the right to be heard and present 
evidence on whether the alleged conduct ever took place and whether, 
even if it did, the conduct amounted to a violation of the Mine Act. 
Although we have grave doubts that it would pass constitutional muster, 
proponents of this approach would be hard pressed in justifying that 
such an unusually harsh and unfair administrative review process should 
only apply to safety and health laws or the mining industry.

    Question 3. One thing we all seem to agree on is that miners in 
this country need to have better communications technology available to 
them. At the subcommittee roundtable that Senator Isakson and Murray 
hosted last week, it was apparent that while there is some technology 
commercially available that may allow miners in some mines to receive 
text messages, however, for the most part the communications technology 
we all dream of is not yet on the market for mining applications. Do 
you have any thoughts on what we can do to parlay the expertise and 
resources of NIOSH and MSHA and private industry to create and 
manufacture this technology?
    Answer 3. There may be many methods with the potential to be 
further developed into systems which may someday enhance communications 
systems for miners. In all practical day to day communication systems 
presently available, both power for the system and the system backbone 
must be inside the mine. These systems work well for daily activities 
and for all but the most catastrophic incidents such as occurred at 
Sago. To work on a system that will provide some type of communications 
capability in that type of event is a technological challenge. Let us 
not forget the Paredo concept and basic risk assessment. We may be able 
to develop a system that will provide communications to most miners in 
most emergencies, whereas, it may be totally impractical to develop a 
system that provides communications to all miners in all emergencies.
    This process of reviewing emergencies communications has started 
through the NIOSH sponsored Mine Emergency Communication partnership. 
This partnership has the governmental, industry and labor expertise to 
move forward. However, what it needs are the resources to evaluate 
possible technologies currently offered by commercial companies and/or 
maintained by other agencies such as the Department of Defense and 
NASA. Then because the market place is so small, the concepts of 
incentives or subsidies must be considered. To develop new technologies 
is not in the best interests of manufacturers if the market place is 
less than several thousand underground mines.

    Question 4. During today's hearing we discussed a number of 
existing and adaptable technologies and equipment which would aid in 
postaccident rescue, but we did not discuss the cost of this 
technology. Can you estimate how much it would cost to install these 
respective technologies and equipment, including communication devices, 
locator devices, additional oxygen equipment and refuge chambers?
    Answer 4. This is a difficult question at this stage of the 
process. Foundation Coal has done a quick assessment based on the West 
Virginia law considering additional self-contained-self-rescuers and 
safety chambers for 3 large mines and 5 small mines and the estimated 
cost is approaching $9.0 million. This does not include communications 
or tracking systems which will most likely exceed this cost figure. 
Because the West Virginia law is so prescriptive, the mine operator is 
not allowed to innovate on how it provides, for instance, additional 
supplies of air. Rather, it has been told what it shall provide and how 
to provide it. Again, prescriptive regulation increases costs 
unnecessarily.
    Congress was told that a communications system such as the PED 
system could be installed for as little as $25,000. This system for a 
moderate size mine is more likely to exceed $400,000 in equipment, 
installation costs and maintenance upkeep.
    Further, tracking devices were stated to be $25 per device. The 
costs associated with the backbone needed to operate these trackers, 
transponders power suppliers, etc., will approach the levels mentioned 
for the PED systems and will not meet the goals of full mine coverage 
that are being discussed by various groups--locating all miners at all 
times.
                      questions of senator kennedy
    Question 1. As Foundation Coal has mines that use the PED 
communications systems, doesn't it make sense to require the use of PED 
messaging in all mines as part of an array of overlapping 
communications devices while we await the development of better and 
more versatile systems?
    Answer 1. As noted in National Mining Association's written 
testimony, Foundation Coal used the PED system effectively in Utah in 
1998 for initial one-way communication which was lost within minutes 
after the initial text message was sent. Since then, Foundation Coal 
has installed the PED system in two mines in West Virginia but because 
it was unreliable in those mines, it was removed from the mines. As Dr. 
Novak stated in his testimony before the committee, to place a 
technology in a mine that does not work is not sound safety practice. I 
would agree.
    There is another practical issue that needs consideration. That is 
mines with a PED system have an in-mine antenna that has the same 
issues in an explosion as any other in-mine system. While certain 
manufacturers promote systems without underground communications 
relays, these systems are unproven in underground coal mine 
environments and were not promoted by these suppliers for U.S. 
underground mining applications until the recent tragic events. Other 
manufacturers have a history of failing to support their systems or, in 
the case of PED, advised operators that a surface antenna was not 
recommended for their underground mining operations.
    Redundant communications systems are found in most mining 
complexes. Foundation Coal operates mines with two communication 
systems--a phone system and an in-mine ``Leaky Feeder'' antenna that 
provide two-way communications via hand held radios. To mandate 
Foundation Coal mines add a PED system would in all likelihood result 
in the decision to limit support of the leaky feeder system.
    I believe that there may be more effective ways to provide sound 
day-to-day communications in mines that will provide communications for 
all but the most catastrophic event. That is why the industry is 
participating in the NIOSH-sponsored partnership formed to review mine 
emergency communications.
    The National Mining Association member companies applaud Congress' 
interest in improved mine communication. We encourage the Congress to 
provide incentives to manufacturers, operators, and the agencies to 
develop better communication devices. We caution, however, against 
providing a monopoly through the mandate of one technology, however 
artfully marketed, that will not provide an answer to the issue of 
paramount importance at this time--improved ``emergency'' mine 
communications.

    Question 2. Do you agree that mine companies should be required to 
repeatedly update their oxygen, safety training, and communications 
equipment and procedures used in mines so they reflect the newest 
available technology? If we fail to require continuing updates, don't 
we run the risk of finding ourselves where we are now with mine safety 
technology that has failed to keep pace with changes in the industry 
and increased production?
    Answer 2. There is an assumption in your question that the industry 
had not been updating its technology, equipment, and procedures. A 
variety of effective, mine worthy communications systems are utilized 
in the United States, which have served us well. Many mines have caches 
of oxygen self-rescuer units available in caches underground in excess 
of legal requirements. Acting in a proactive manner, mines have 
installed early warning fire detection systems on conveyor belts and 
other key locations and mines continue to install the latest PLC 
systems that provide more reliable ``fault'' detection for systems 
including conveyor belt systems. Also, many mines have installed the 
proximity shutdown devices on continuous miners to eliminate crushing 
accidents. And the list goes on. Safety training and safety systems 
have also been continually improved. Many mines have been implementing 
more rigorous fire fighting training. Also, many operators have 
implemented safety processes including Safe Behavior Reinforcement 
programs.
    Can we do more? Yes, there is always new technology or ideas that 
when proven reliable the industry will willingly implement. The NIOSH/
Industry partnership leading the development of the personal dust 
monitor is an excellent example.
    We assert, however, that safety training will play a key role in 
the improvement of mine safety in this decade. Nationwide we see a 
dynamic change in our workforce as a new generation of miners enters 
and the stable pool of experienced miners retires. The agencies should 
be encouraged to devote their efforts to this key area and adequate 
resources should be provided by the Congress to assure this new 
generation of miners is provided with the necessary safety training 
before entering the workplace.

    Question 3. In countries such as Australia, mine operators are 
required to perform a detailed and rigorous risk analysis before they 
begin operations. Does Foundation Coal do something similar in its 
mines? Should this kind of comprehensive and continuing risk analysis 
be required in American mines?
    Answer 3. Foundation Coal does perform risk assessments to varying 
degrees at its mining operations depending on the nature of the 
operations, e.g., continuous miner versus longwall or thick seam versus 
thin seam. This process is a sound safety practice and should be 
implemented at all mines. These assessments can range from an in-depth 
review of ventilation, respirable dust control, roof control systems 
and shield sizing before making a longwall system change, to a more 
basic assessment of machine design and modifications to provide a work 
platform for a dozer. Many of the risk assessments that are completed 
do not follow a planned risk assessment program.
    Also, Australia has essentially eliminated its in-mine inspection 
program in deference to the risk assessment approach. The Australian 
culture is built on the risk assessment process and miners are familiar 
with how it works. The current United States regulatory scheme however, 
does not give credit to the mine operator for doing risk assessments. 
If MSHA were to require such a rigorous risk assessment, then its 
mission must change from being a compliance only Agency to a risk 
assessment Agency. Too much time is wasted by operators trying to deal 
with deminimis issues rather than doing what is suggested by your 
question.
Response to Questions of Senator Enzi, Senator Kennedy, Senator Hatch, 
                    and Senator Byrd by John Howard
                       questions of senator enzi
    Question 1. In addition to conducting research, I understand that 
NIOSH often functions as the focal point for the exchange of ideas on 
mine safety among the many stakeholders. Could you give us an idea of 
how that process works, and if you believe there are ways that it can 
be strengthened or improved even more?
    Answer 1. The underlying causes of mining safety and health 
problems may be well understood, but developing practical and effective 
solutions can be quite difficult. Sometimes the solution to one problem 
may actually exacerbate another problem, and so trade-offs must be 
determined and acceptable solutions crafted. Mine workers and mine 
operators bring unique expertise into the nature of the problems and 
the efficacy of solutions. Often manufacturers and others can 
contribute as well. When combined with NIOSH's scientific and 
engineering expertise, this group of customers, stakeholders, and 
researchers brings a critical collection of knowledge and experience to 
bear on mining safety and health problems. Often times, these groups 
are called together to examine very specific parts of a problem or 
proposed solution, and afterwards there is no continuing collaboration. 
In some cases, however, the problem is so large or widespread, complex, 
and perhaps controversial, that a more formal and longer term 
collaboration is indicated. We refer to these as ``Partnerships.''
    Partnerships are integral to the NIOSH Mining Program. They 
facilitate advances in the safety and health of U.S. mine workers. 
Input from customers and stakeholder groups, which have inherent 
knowledge and concern about the health and safety of miners, helps in 
framing the problem and the possible solutions for which NIOSH research 
is required. Collaborative research with our partners provides in-kind 
contributions, such as equipment and test mine sites, to conduct 
research. As mentioned previously, the partners often add expertise or 
specialized experience to the research team, which is beneficial to the 
research experiments and analysis and interpretation of the results. 
This added expertise increases the likelihood that workable solutions 
will be developed more quickly. Once solutions are demonstrated, the 
existing Partnership then facilitates a more rapid and complete 
transfer of knowledge and products to the mines. Some of the partners 
that provide input are:
Labor
     United Mine Workers of America (UMWA);
     United Steelworkers of America (USWA);
     International Union of Operating Engineers (IUOE).
Industry
     Bituminous Coal Operators' Association (BCOA);
     National Mining Association (NMA);
     National Stone, Sand and Gravel Association (NSSGA);
     Industrial Minerals Association-North America (IMA-NA);
     Northwest Mining Association (NWMA).

    In addition, a number of State organizations, universities, 
manufacturers, and Government Agencies participate in research 
partnerships.
    Overall we are pleased with the use of partnerships. Partnerships, 
though, to be truly effective are like business relationships--they 
need to be nurtured.
    For additional examples of our research partners, please visit the 
mining evidence package for the NAS (National Academy of Sciences) 
review at (http:www.cdc.gov/niosh/nas/mining/whatdoes-
partnerships.htm).

    Question 2. Currently, NIOSH exchanges research data through 
professional and academic channels already; however, I would be 
interested in whether you believe this kind of valuable information 
exchange might benefit from an additional formal or structured process?
    Answer 2. NIOSH researchers participate actively in professional 
society meetings, publish in cross-disciplinary journals, and take 
other steps to become knowledgeable about problems and solutions in 
related applications. In some cases, practices or technologies from a 
nonmining application are adopted or modified to meet a mining need. In 
other cases, mining developed practices are transferred to other 
sectors where they are adopted or utilized in a similar fashion. 
Overall, this process has worked satisfactorily. Nonetheless, the 
recent focus on mine-disaster issues, including the roundtable 
discussion conducted by the Senate subcommittee, has revealed 
opportunities to improve this process.
                      Questions of Senator Kennedy
    Question 1. Provide a breakdown of overall NIOSH (or predecessor 
Agency) funding levels from 1990 through the present, including a 
breakdown of the funds specifically designated for the Institute's mine 
safety program.
    Answer 1. The mine safety and health functions of the former Bureau 
of Mines transferred to NIOSH in 1997. $31,913,000 transferred to NIOSH 
to support the mining operations in Pittsburgh, Pennsylvania, Spokane, 
Washington and Lake Lynn, West Virginia. Congress appropriated an 
additional $5 million to support these operations in 2005.
    The following table outlines total dollars spent by NIOSH on 
mining-related research since 1997. In addition to funding appropriated 
to NIOSH specifically for these activities, NIOSH also invests other 
occupational safety and health dollars into high priority mining 
research. NIOSH does not hold the official budget records for the 
mining program prior to its transfer from the Bureau of Mines in 1996.

         NIOSH Mining Earmark Fiscal Year 1999-Fiscal Year 2006
------------------------------------------------------------------------
                                                          Funding  ($ in
                       Fiscal Year                          thousands)
------------------------------------------------------------------------
2006....................................................       $37,948
2005....................................................       $37,960
2004....................................................       $33,863
2003....................................................       $36,111
2002....................................................       $39,886
2001....................................................       $39,354
2000....................................................       $36,678
1999....................................................       $35,620
1998....................................................       $33,934
1997....................................................       $32,063
------------------------------------------------------------------------


    Question 2. Describe how funding levels have affected the 
Institute's ability to conduct studies, research, and testing of mine 
safety equipment and processes, including a list of any specific 
initiatives that the Institute has canceled, curtailed or abandoned 
because of insufficient funding over the last 10 years.
    Answer 2. NIOSH has had to target its mine safety and health 
research activities toward the most urgent research needs identified in 
collaboration with our customers and stakeholders.
    Examples of specific areas that were not fully funded include:

    1. Explosion prevention research.
    2. Research to develop technology to remotely install mine seals 
during mine fires.
    3. Blasting and explosives safety research.
    4. Technology development of promising concepts.
    5. Investigation of Methane Control Issues in Underground Mines.

    Question 3. Describe any equipment or facilities that the Institute 
has failed to maintain or modernize because of funding shortages. Is it 
true that the Institute operates a mobile chest x-ray van but can only 
afford to use it for 2 weeks out of the year?
    Answer 3. The Mine Roof Simulator, which is used to test mine 
support systems, has not had a major overhaul and upgrading of its 
computer systems since it was constructed almost 30 years ago. It is 
the only facility in the United States capable of conducting test of 
new and innovative roof support technology.
    Large-scale fire and explosion prevention and mine rescue research 
is conducted at the Lake Lynn Laboratory and Experimental Mines, which 
is a leased facility. Efforts to maintain and modernize have been 
limited because the lease is set to expire in September 2008. This is 
the only facility in the United States for conducting explosion 
prevention research.
    Other facilities that have been identified as needing maintenance 
and modernization include the Coal Face Methane Control Laboratory, the 
Longwall Dust Gallery, and the Pittsburgh facility.
    As far as the mobile chest x-ray unit, we are able to use the van 
more than 2 weeks out of a year. In 2006, NIOSH received funding to 
operate a mobile chest x-ray unit that will visit a minimum of two 
regional areas per year (time spent at a location will vary based upon 
the number workers to be screened, etc.). These regions have been 
designated through surveillance data as areas of high prevalence for 
coal workers' pneumoconiosis. This project builds upon the mandates set 
forth by The Federal Coal Mine Health and Safety Act, which directed 
NIOSH to study the causes and consequences of the coal-related 
respiratory disease. In cooperation with the Mine Safety and Health 
Administration (MSHA), CDC-NIOSH is carrying out a program for early 
detection and prevention of coal workers' pneumoconiosis (CWP) that 
exceeds mandated requirements--the Enhanced Coal Workers' Health 
Surveillance Program (ECWHSP).
    MSHA initiated a pilot x-ray screening program (Miners' Choice 
Health Screening) in fiscal year 2000. It extended screening to surface 
coal miners and covered all costs of chest x-rays obtained under the 
program. NIOSH supported the program by evaluating chest x-rays and 
mailing results to miners. The Miner's Choice Health Screening program 
detected pneumoconiosis in previously unscreened surface miners and 
increased overall participation in mandated screening of underground 
coal miners. MSHA's Miner's Choice program ended several years ago, but 
its goals of increasing the availability of health screening and 
participation by both underground and surface coal miners will now be 
addressed by the ECWHSP, which is based in NIOSH and being conducted in 
collaboration with MSHA.
    The Enhanced program has the following goals: (1) implement an 
outreach program to increase awareness and knowledge of CWP; (2) survey 
health and mining conditions in areas with reports of CWP among young 
or short tenure miners and/or rapidly progressive disease; (3) evaluate 
the representativeness of the prior participants in the CWHSP, and 
implement a statistical sampling strategy that will provide valid 
estimates, including confidence limits, of the health and economic 
burden of dust-related disease from the U.S. coal mining industry; (4) 
investigate potentially remediable causative or contributing factors 
for lung disease in current underground coal mines.

    Question 4a. Has NIOSH done studies on the effectiveness of 
different types of mine seals?
    Answer 4a. The Bureau of Mines in the 1990's and now NIOSH have 
conducted studies on the effectiveness of mine seals. The primary 
purpose was to determine whether they met the 20 psi standard of 30 CFR 
75.335 so that MSHA could determine their suitability for underground 
coal mine use. In some cases, tests were conducted at higher pressures 
to determine the ultimate strength of the seals. Upon request by MSHA, 
NIOSH tests each new mine seal design subject to the requirements of 30 
CFR 75.335 before MSHA can deem the design suitable for underground 
coal mine use. In addition to the standard explosion test, NIOSH has 
developed alternative testing methods for mine seals under hydrostatic 
loading.

    Question 4b. Does NIOSH have an opinion about the increased use of 
foam--like Omega blocks, rather than traditional concrete, to seal 
inactive areas of mines?
    Answer 4b. Seal manufacturers design mine seals to meet the 
requirements of 30 CFR 75.335. Before seal designs can be approved as 
part of a mine ventilation plan, NIOSH tests these designs subject to 
the static load requirements of 30 CFR 75.335. NIOSH does not form an 
opinion about the suitability of different materials that manufacturers 
use to construct various types of seals.

    Question 4c. Do you believe that a 20 psi standard is sufficient to 
withstand a major force explosion?
    Answer 4c. The 20 psi standard proposed by MSHA is discussed in the 
Federal Register, vol. 57, no. 95, p. 20887, May 15, 1992. The 20 psi 
standard refers to U.S. Bureau of Mines Report of Investigations No. 
7581 (1971). This report states that ``bulkheads may be considered 
``explosion proof '' when they withstand a static load of 20 psig 
provided that the area to be sealed contains sufficient incombustible 
to abate the explosion hazard . . .'' It also states that ``gas-air 
exchanges between sealed and open portions of a mine must be controlled 
. . .'' The object of these requirements is to limit the possible 
volume of flammable gases that can participate in an explosion. The 20-
psi standard may not be sufficient if these requirements are not met. 
Given a mounting body of evidence, mines may not be able to satisfy all 
of the requirements on which the 20 psi standard was established. 
Therefore, we believe it is prudent to prepare research experiments to 
reexamine the 20 psi standard.

    Question 4d. Has NIOSH done any studies regarding the effectiveness 
of the 20 psi standard since adopting it in 1992?
    Answer 4d. NIOSH has examined all MSHA reports about major mine 
explosions including the cases in which seals have been destroyed. 
NIOSH Technology News No. 489 (2001) states that, ``if a large 
flammable gas volume exists in the mined-out area, the resulting 
explosion pressure can be greater than 20 psi.'' This finding was based 
on MSHA Accident Investigation Report, Non-Injury explosion, Oak Grove 
Mine, July 9, 1997, which states that ``the propagating forces of the 
explosion that destroyed the No. 29 seal were estimated to be greater 
than 20 psi.''

References

Weiss E.S., Cashdollar K.L., Mutton I.V.S., Kohli D.R., Slivensky W.A. 
        1999. Evaluation of reinforced cementitious seals. Pittsburgh, 
        PA: U.S. Department of Health and Human Services, National 
        Institute for Occupational Safety and Health, Pittsburgh 
        Research Laboratory, RI 9647, 35 pp.
Sapko M.J., Weiss E.S., Cashdollar K.L., Greninger N.B. 1999. Overview 
        of NIOSH's Mine Seal Research. Paper in Proceedings of the 28th 
        International Conference of Safety in Mines Research 
        Institutes, (Sinaia, Romania, June 7-11, 1999), v. 1, pp. 71-
        85.
Weiss E.S., Cashdollar K.L., and Sapko M.J. 2002. Evaluation of 
        Explosion Resistant Seals, Stoppings, and Overcast for 
        Ventilation Control in Underground Coal Mining. NIOSH, 
        Pittsburgh Research Laboratory, RI 9659, 48 pp.
Sapko M.J., Weiss E.S., Trackemas J.D., Stephan C.R. 2003. Designs for 
        rapid in-situ sealing. In: Proceedings of the 2003 SME Annual 
        Meeting, Cincinnati, OH, February 24-28.
Sapko M.J., Weiss E.S., and Harteis S.P. 2005. Methods for evaluating 
        explosion resistant ventilation structures. In: Proceedings of 
        the Eighth International Mine Ventilation Congress, The 
        Australasian Institute of Mining and Metallurgy, Brisbane, 
        Australia, July 6-8, 2005, pp. 211-219.
Scott, D.S. and Stephan, C.R., MSHA Accident Investigation Report, Non-
        Injury explosion, Oak Grove Mine, July 9, 1997.
NIOSH Technology News No. 489 (2001), Reducing the Danger of Explosions 
        in Sealed Areas (Gobs) in Mines.
Stephan, C.R., Construction of Seals in Underground Coal Mines, MSHA 
        Report No. 06-213-90 (1990).
Mitchell, D.W., US Bureau of Mines Report of Investigations No. 7581, 
        Explosion-Proof Bulkheads (1971).

    Question 5a. Describe the role of NIOSH in past proposals to 
redesign the standard for emergency breathing devices, or SCSRs?
    Answer 5a. Although MSHA and NIOSH are co-approvers for respirators 
used in mining, NIOSH is responsible for maintaining or revising those 
parts of 42 C.F.R. 84 which apply to emergency breathing apparatus, 
including SCSRs.

    Question 5b. What, if any, recommendations did NIOSH make during 
the MSHA rulemaking process, or at any other time?
    Answer 5b. In response to a MSHA request for information, RIN 1219-
AB44 dated January 20th 2006, NIOSH provided information proposing that 
MSHA maintain the requirement that SCSRs rated for 1 hour duration be 
maintained and that MSHA consider the number of 1 hour SCSRs that are 
required to be provided for each miner. Both of these recommendations 
are in the MSHA emergency standard.
    In the NIOSH response to the MSHA request for information NIOSH 
recommended that MSHA implement a mandatory registration program for 
SCSRs. In the emergency rule MSHA did not implement registration but 
solicited information on the appropriateness of collecting certain 
information concerning the inventory of SCSRs in mines.
    In another comment to the MSHA request for information NIOSH 
suggested that more emphasis should be placed on inspection of SCSRs. 
In the emergency rule MSHA does provide for more frequent training on 
the use, care and maintenance of SCSRs.
SCSR Draft Standard
    Also, since 2001, NIOSH has been working on draft standards for 
Closed-Circuit Emergency Respirators (CCERs), a class of respirators 
that includes SCSRs.
    In 2005, as part of that process, NIOSH met twice with MSHA to 
review and discuss the new standard.
SCSR Research
    In the MSHA request for information, MSHA asked whether there are 
more effective technology to protect miners than the SCSRs currently 
available?
    NIOSH responded potentially yes and described two technologies 
worthy of further research. These are:

     Hybrid System--a combination of an SCSR with an air 
purifying respirator. Prototypes of this type of respirator were 
discussed at NIOSH/MSHA sponsored Self-Contained Self-Rescuers 
Breathing System Workshops (June and December 2005) held in 
conjunctions with the National Technology Transfer Center (NTTC) of 
Wheeling Jesuit University.
     Dockable (piggyback) SCSR--Additional units would be 
connected (snapped) to the initial SCSR thus eliminating the need to 
make multiple donnings and would have similar benefits as a hybrid 
system. This type of units is allowable under interpretations of 
current MSHA regulations (30 C.F.R. Part 75.1714) which permits a 10/60 
respirator.

    Question 5c. How did MSHA respond to any recommendations made by 
NIOSH?
    Answer 5c. See comments to question 2 above. In response to the 
NIOSH comments to the MSHA request for information, MSHA adopted two 
NIOSH recommendations:

    A. NIOSH recommended that the requirement for 1 hour rated SCSRs be 
retained. MSHA retained the 1-hour rated SCSRs as recommended.
    B. NIOSH recommended that MSHA determine the number of 1 hour SCSRs 
that are provided for each miner. MSHA supported this recommendation.

    MSHA is working with NIOSH on the proposed CCER standard.

    Question 6. Provide any studies, opinions, or recommendations that 
NIOSH has made with respect to mine conveyor belt flammability. 
Describe if and how any recommendations were conveyed to MSHA and how 
MSHA responded to the Institute's recommendations.
    Answer 6. In the late 1980s, the U.S. Bureau of Mines, now NIOSH, 
conducted a study, in cooperation with the MSHA Approval and 
Certification Center, Triadelphia, WV, on the flammability of conveyor 
belting. The study assessed the flammability behavior of conveyor 
belting in a large-scale gallery test. The large-scale test results 
were utilized to develop an improved laboratory-scale ventilated tunnel 
fire test for flame-resistant belting (Belt Evaluation Laboratory 
Test).\1\ \2\ The Bureau also prepared and submitted to MSHA fire 
testing procedures and construction drawings for the Belt Evaluation 
Laboratory Test in March, 1989.\3\
    The Bureau of Mines presented the study findings at a public 
meeting on MSHA's Conveyor Belt Flammability Program held on March 15, 
1989, at the MSHA Approval and Certification Center.\4\ MSHA also 
initiated a voluntary program by which belt manufacturers could submit 
conveyor belt samples, free of charge, to be tested by the Bureau with 
the new procedure.\5\ The Bureau constructed a test apparatus for MSHA 
that was installed at its Approval and Certification Center and the 
majority of the submitted samples under this interim testing program 
were tested there by MSHA personnel.
    MSHA published a proposed rule ``Requirements for Approval of 
Flame-Resistant Conveyor Belts'' in the Federal Register on December 
24, 1992.\6\ The proposed rule would have replaced the current small-
scale test procedure for approval of flame-resistant conveyor belting 
used in underground coal mines with the more stringent Belt Evaluation 
Laboratory Test. A public Hearing on ``Requirements for Approval of 
Flame-Resistant Conveyor Belts'' was conducted by MSHA in Washington, 
PA, on May 2, 1995. At this hearing, the Bureau of Mines presented a 
statement \7\ that included the following:
    ``Conveyor belts that pass the proposed new test have improved fire 
resistance and are much less likely to spread flame, which also reduces 
the potential for a serious toxic hazard. The use of the improved fire-
resistant conveyor belts in mines would significantly reduce the risk 
of severe belt fires. Based on these findings, the Bureau of Mines 
recommends that the proposed new laboratory-scale test procedure for 
approval of flame-resistant conveyor belts be adopted.''
    The rule making process continued for several years and the 
proposed rule reached the final rulemaking stage. On July 15, 2002, 
MSHA announced in the Federal Register that the proposed rule 
``Requirements for Approval of Flame Resistant Conveyor Belts'' was 
withdrawn and presented its reasons for withdrawal.\8\

References

    1. Lazzara, C.P. and F.J. Perzak, Conveyor Belt Flammability 
Studies, Proceedings of the 21st Annual Institute on Coal Mining 
Health, Safety, and Research, 1990, pp 119-129.
    2. New Flammability Test for Conveyor Belting. Bureau of Mines 
Technology News 377, March 1991.
    3. Fire Testing Procedures and Construction Drawings for the Belt 
Evaluation Laboratory Test, Bureau of Mines, March 1989.
    4. Minutes of Public Meeting on MSHA's Conveyor Belt Flammability 
Program, Mine Safety and Health Administration, Approval and 
Certification Center, Triadelphia, WV, March 15, 1989.
    5. MSHA letter dated February 9, 1989.
    6. Requirements for Approval of Flame-Resistant Conveyor Belts, 
Federal Register, Vol. 57, No. 248, Thursday, December 24, 1992, 
Proposed Rules, 61524-61535.
    7. U.S. Bureau of Mines Statement at the MSHA Public Hearing on 
``Requirements for Approval of Flame-Resistant Conveyor Belts'', May 2, 
1995, Washington PA.
    8. Requirements for Approval of Flame-Resistant Conveyor Belts, 
Federal Register, Vol. 67, No 135, Monday, July 15, 2002, Proposed 
Rules, 46431-46432.
                       questions of senator hatch
    Question 1. What is the annual budget for mining research at the 
National Institute of Occupational Safety and Health (NIOSH)? Does this 
program have its own line item in the budget?
    Answer 1. The total budget for mine safety and health research at 
NIOSH is $38 million. Of this amount, $31 million is used to support 
research at the Pittsburgh and Spokane Research Laboratories where the 
safety and health programs from the former Bureau of Mines are located. 
The remainder of these funds supports health-related research in 
respiratory disease studies, a component of the NIOSH program focused 
on mining exposures causing occupational diseases, and the facility 
costs for the Pittsburgh and Spokane operations. In the CDC budget, 
occupational safety and health has its own line item, of which mining 
is a component.

    Question 2. It is my understanding that NIOSH inherited mining 
research programs when the Bureau of Mines was eliminated in 1995. Do 
you recall what annual budget for the Bureau of Mines was before it was 
eliminated? How has the decrease in funding affected mine safety 
research?
    Answer 2. In 1994, the last full year of operation before closure 
preparation was underway, the Bureau of Mines' spent $54.9 million, 
excluding facility operating costs, on mining safety and health 
research. In 1997, when the program was transferred to NIOSH, NIOSH 
received $32 million, to continue the Bureau's mining safety and health 
program, including facility costs associated with this program. In 
fiscal year 2006, the budget is $38 million and the request for fiscal 
year 2007 remains level.
    With this funding level, NIOSH has targeted its mine safety and 
health research activities toward the most urgent research needs 
identified in collaboration with our customers and stakeholders.
                       questions of senator byrd
    Question 1. What has NIOSH done with its $31 million annual budget 
for mine safety?
    Answer 1. Note: $32 million transferred from DOE to NIOSH to 
support the mine safety and health functions of the former Bureau of 
Mines. In fiscal year 2005, the total budget for mine safety and health 
research at NIOSH was $38 million.
    NIOSH's research and prevention activities have contributed to a 
reduction in fatalities, injuries and occupational disease's in the 
Nation's miners. Examples to illustrate the breadth and the general 
types of NIOSH's contributions are:
    Engineering Controls: NIOSH develops technology to reduce or 
eliminate a specific hazard in the mine. Specific examples include:

     Reducing the noise on continuous mining machines using 
coated flight bars;
     Improved seat design for low-seam shuttle cars;
     Mobile roof supports for retreat room and pillar mines;
     Control of horizontal stress in mine roofs to reduce rock 
fall injuries and fatalities;
     Ventilation technology for large-opening stone mines;
     Methods to manage methane gas in underground coal mines.

    Monitoring/Measurement: NIOSH develops measurement or monitoring 
technol-
ogy to satisfy a critical safety or health need: Specific examples 
include:

     A real-time wearable personal dust monitor to empower 
miners to reduce respirable dust exposure without having to wait for a 
laboratory to return measurement results to them.
     A coal dust explosibility meter to provide a direct 
assessment of the potential explosibility of a coal and rock dust 
mixture, to prevent dust explosions.

    Training Miners: NIOSH develops training materials to allow miners 
to perform their tasks safely, and NIOSH training packages have been 
used by hundreds of thousands of miners. Specific examples include:

     Electrical safety training to reduce overhead power line 
injuries;
     Interactive problem solving stories;
     Mine training videos;
     Western Train-The-Trainer Forum.

    Training Rescuers: We train mine rescue teams and fire brigades at 
our facilities, and also conduct onsite training for mine workers and 
mine operators. Examples include:

     Realistic training for mine emergency responders at our 
NIOSH experimental mines;
     Computer-based training simulation to prevent loss of life 
during mine emergencies.

    Best Practices: NIOSH identifies effective practices for removing 
safety or health hazards, documents those practices, and then 
disseminates them throughout the mining industry. Specific examples 
include:

     Reducing work-related musculoskeletal disorders in mining 
in partnership with Bridger Coal Company;
     System safety best practices to reduce injuries due to 
malfunctioning computerized mining systems.

    Engineering Guidelines: NIOSH develops design models and tools to 
help safety professionals design safer and healthier mines. Examples 
are:

     Guidelines for reducing the probability of carbon monoxide 
poisonings associated with trench blasting;
     Guidelines for the safe use of waste motor oil in ANFO;
     Guidance for applying proximity warning systems to surface 
mining equipment;
     Design guidelines for safe highwall mining systems;
     Guidelines for coal pillar recovery.

    Test Criteria: NIOSH develops criteria for testing materials and 
products to ensure that they satisfy certain safety or health 
objectives. Specific examples are:

     Transfer of explosions and fire expertise and test 
procedures to industry;
     Testing of flammability of noise control materials;
     Testing of flammability of conveyor belt materials.

    Testing: NIOSH conducts a limited amount of testing in those cases 
where it is uniquely able to do so. Examples include:

     Testing of roof support devices at our mine roof simulator 
facility;
     Testing of explosives at the request of MSHA for 
determination of the cause of accidents.

    Scientific Foundation for Rulemaking: NIOSH conducts research to 
provide a basis for regulations that will protect the safety and health 
of miners, when requested by MSHA. Examples include:

     Revision of the final MSHA rule on the interim diesel 
particulate matter standard for underground metal/nonmetal mines;
     MSHA high-voltage longwall regulations;
     Proposed MSHA regulation to improve high-voltage 
continuous miner electrical safety.

    We conduct extensive research in the mines, and have conducted 
onsite work at mines in nearly every State; we complement this in-mine 
research effort with a robust experimental program at our unique mining 
laboratories; and we have an aggressive program to transfer our 
research into practice. Since we do not operate the mines or 
manufacture the equipment used in the mines, our ability to transfer 
our research to practice depends on the cooperation of others. We 
depend upon the private sector to commercialize certain technologies, 
the mining companies to employ our best practices, guidelines and 
control technologies, and MSHA to adapt our findings into regulations 
or to disseminate our findings in their compliance assistance 
activities. We do not leave this transfer to chance. We form 
partnerships with labor, industry, and Government organizations and 
take other steps to improve the implementation of our work at the mine 
level.

    Question 2. What new equipment has been introduced into the mines 
because of the work of NIOSH?
    Answer 2. Evidence of NIOSH's impact is present throughout the 
mines, as illustrated in the previous paragraphs. The introduction of 
new equipment as an outcome of our research activities is one of 
several mechanisms NIOSH has to impact safety and health in the mines. 
Specific examples for underground coal would include: the mobile roof 
supports used in nearly every coal mine pillaring operation; the 
innovative roof supports that reduce roof falls; improved mine rescue 
technology including directional lifelines, inflatable seals, and 
rescue team communication systems; dust suppression sprays of the 
shearer and the flooded bed scrubber on continuous miners that reduce 
exposure to respirable dust, as well as a wide range of other dust 
suppression technologies; the shuttle car seat that reduces lower back 
injuries; and the quieter continuous miner conveyor chain that reduces 
noise levels. Two recent equipment innovations that are ready to begin 
transfer to the mine are the real-time personal dust monitor and the 
coal dust explosibility meter. A more detailed description of the 
impact of NIOSH's mining program is given in Chapter 3 of the mining 
evidence package for the NAS review at (http://www.cdc.gov/niosh/nas/
mining/).

    [Whereupon, at 12:40 p.m., the committee was adjourned.]

                                    

      
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