[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
 EVALUATING THE EFFECTIVENESS OF MSHA'S MINE SAFETY AND HEALTH PROGRAMS 

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



                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 16, 2007

                               __________

                           Serial No. 110-38

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 16, 2007.....................................     1
Statement of Members:
    Altmire, Hon. Jason, a Representative in Congress from the 
      State of Pennsylvania, prepared statement of...............    87
    Capito, Hon. Shelley Moore, a Representative in Congress from 
      the State of West Virginia.................................     9
        Prepared statement of....................................    11
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     3
        Prepared statement of....................................     5
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     6
        Prepared statement of....................................     8

Statement of Witnesses:
    Bertoni, Dan, Director, Education, Workforce and Income 
      Security Team, Government Accountability Office............    13
        Prepared statement of....................................    16
    Grayson, R. Larry, Union Pacific/Rocky Mountain Energy 
      Professor of Mining and Director, Western U.S. Mining 
      Safety & Health Training and Translation Center............    48
        Prepared statement of....................................    50
    McAteer, J. Davitt, vice president, Wheeling Jesuit 
      University.................................................    53
        Prepared statement of....................................    55
        Attachment 1: List of rules withdrawn by MSHA............    88
        Attachment 2: Sago Mine investigation memorandum for the 
          file (July 2006).......................................    94
        Internet address to the Aracoma Alma Mine report.........   100
        Internet address to the Sago Mine Disaster report........   100
    Snare, Jonathan L., Acting Solicitor, U.S. Department of 
      Labor......................................................    44
        Prepared statement of....................................    46
    Stickler, Hon. Richard E., Assistant Secretary of Labor, Mine 
      Safety and Health Administration...........................    37
        Prepared statement of....................................    38
        Responses to questions posed by Mr. Davis of Tennessee 
          and Mr. Kucinich.......................................    84


                 EVALUATING THE EFFECTIVENESS OF MSHA'S
                    MINE SAFETY AND HEALTH PROGRAMS

                              ----------                              


                        Wednesday, May 16, 2007

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:33 a.m., in Room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Woolsey, 
McCarthy, Kucinich, Wu, Bishop of New York, Sarbanes, Yarmuth, 
Hare, Clarke, McKeon, Wilson, Kline, Price of Georgia, Kuhl, 
Davis of Tennessee and Walberg.
    Staff Present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional; 
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis, 
Policy Advisor for Subcommittee on Workforce Protections; 
Michael Gaffin, Staff Assistant, Labor; Peter Galvin, Senior 
Labor Policy Advisor; Jeffrey Hancuff, Staff Assistant, Labor; 
Brian Kennedy, General Counsel; Thomas Kiley, Communications 
Director; Rachel Racusen, Deputy Communications Director; 
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff 
Director; Robert Borden, Minority General Counsel; Steve Forde, 
Minority Communications Director; Ed Gilroy, Minority Director 
of Workforce Policy; Rob Gregg, Minority Legislative Assistant; 
Richard Hoar, Minority Professional Staff Member; Victor Klatt, 
Minority Staff Director; Jim Paretti, Minority Workforce Policy 
Counsel; Molly McLaughlin Salmi, Minority Deputy Director of 
Workforce Policy; Linda Stevens, Minority Chief Clerk/Assistant 
to the General Counsel; and Loren Sweatt, Minority Professional 
Staff Member.
    Chairman Miller. The Committee on Education and Labor will 
come to order for the purpose of evaluating the effectiveness 
of MSHA's mine safety and health programs.
    At the hearing on March 28, this committee heard some very 
strong criticisms of the U.S. Department of Labor and its Mine 
Safety and Health Administration. We heard from those directly 
impacted by MSHA's work that, despite its sweeping authority, 
the agency moves at a glacial pace and often simply fails 
outright to enact meaningful and effective safety standards.
    Debbie Hamner spoke of her husband, Junior, who was killed 
in the Sago mine. She said: ``If I knew then what I knew today, 
I would have begged my husband not to work at Sago * * * 
Congress mandated explosive-proof seals, and yet MSHA approved 
the use of omega blocks at Sago * * * MSHA approved the 
ventilation system at Sago that did not push the air away from 
the seals. Therefore, when our miners tried to escape * * * 
they could not.''
    Scott Howard a miner told us that, in his 28 years 
experience in the mines, he hadn't seen any evidence it was 
safer, despite the more robust laws passed by Congress. He 
said: ``Outside [of the mine], safety is first. When you go 
underground, coal is all that matters.''
    It is obvious from the hearings that MSHA must regain the 
trust of the people who rely on the agency every day, miners 
and their families. It appears that MSHA is not acting quickly 
enough to implement the Mine Improvement and New Emergency 
Response Act that Congress passed last year. In today's 
hearing, we intend to examine why this is the case.
    In many ways, it seems that MSHA has chosen to move at a 
snail's pace when it could be acting far more aggressively. For 
example, MSHA has yet to require mine operators to install 
emergency rescue shelters in all underground mines. Just an 
hour ago, I toured one of these shelters right here on the 
grounds of the U.S. Capitol. The shelter can safely hold 35 
miners for up to 96 hours with breathable air, potable water 
and food.
    The shelter I toured was one of a half dozen such shelters 
which the State of West Virginia has approved as safe for 
underground coal mines. The National Institute for Occupational 
Safety and Health has advised us that they consider these 
shelters safe and have no plans to ask West Virginia to stop 
the deployment, to alter their requirement.
    If these shelters can help the miners of West Virginia, 
then they can help the miners in Kentucky, Illinois and Alabama 
or any other mining State. These shelters are just an example 
of how the States have acted more swiftly than MSHA to improve 
the mine safety.
    Congress established MSHA to protect the safety and health 
of miners. Congress gave the agency a lot of discretion to do 
that, and the courts have upheld that discretion time and 
again. Yet, under the current administration, we see we have 
plenty of examples where MSHA has not used its authority to 
aggressively protect miners.
    It is clear that MSHA sometimes needs a push from Congress. 
Last year's MINER Act was such a push. It did not address all 
of the lessons we learned and continue to learn from the 
tragedies at Sago, Aracoma Alma and Darby, but it was a push in 
the right direction.
    In today's hearing, we want to hear about the progress MSHA 
is making to implement that act of Congress, whether MSHA is 
being sufficiently pro-active in improving mine safety even 
beyond the MINER Act, and what tools MSHA may need to further 
carry out its mission to properly regulate and enforce the law. 
I look forward to these hearings and hearing that testimony.
    At this time, I would like to recognize Congressman McKeon, 
the senior Republican on the committee.
    [The prepared statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Good morning.
    At a hearing on March 28, this Committee heard some very strong 
criticism of the U.S. Department of Labor and its Mine Safety and 
Health Administration. We heard from those directly impacted by MSHA's 
work that, despite its sweeping authority, the agency moves at a 
glacial pace--and often simply fails or outright refuses to enact 
meaningful and effective safety standards.
    Debbie Hamner spoke of her husband Junior, who was killed at the 
Sago mine: ``If I knew then what I know today, I would have begged my 
husband not to work at Sago.* * * Congress mandated explosion-proof 
seals, yet MSHA approved the use of omega blocks at Sago * * * MSHA 
approved a ventilation plan at Sago that did not push the air away from 
the seals. Therefore when our miners tried to escape * * * they could 
not.''
    Scott Howard, a miner, told us that in his 28-year experience in 
mines, he hasn't seen any evidence that he is safer despite the more 
robust laws passed by Congress. He said: ``Outside [of the mine], 
safety is first. When you go underground, coal is all that matters.''
    It is obvious from that hearing that MSHA must regain the trust of 
the people who rely on the agency every day--miners and their families. 
It appears that MSHA is not acting quickly enough to implement the Mine 
Improvement and New Emergency Response Act that Congress passed last 
year. In today's hearing, we intend to examine why this is the case.
    In many ways, it seems that MSHA has chosen to move at a snail's 
pace when it could be acting far more aggressively.
    For example, MSHA has yet to require mine operators to install 
emergency rescue shelters in all underground mines. Just an hour ago, I 
toured one of these shelters right here on the grounds of the U.S. 
Capitol. The shelter can safely hold 35 miners for up to 96 hours, with 
breathable air, potable water, and food.
    The shelter I toured is one of one a half dozen such shelters which 
the State of West Virginia has approved as safe for underground coal 
mines. The National Institute for Occupational Safety
    and Health (NIOSH) has advised us they also consider these shelters 
safe and have no plans to ask West Virginia to stop deployment or alter 
their requirements.
    If these shelters can help miners in West Virginia, then they can 
help miners in Kentucky, Illinois, Alabama, or any other mining state. 
These shelters are just one example of how states have acted more 
swiftly than has MSHA to improve mine safety.
    Congress established MSHA to protect the safety and health of 
miners. Congress gave the agency a lot of discretion to do that, and 
the courts have upheld that discretion time and again.
    Yet under the current Administration, we have seen plenty of 
examples where MSHA has not used its authority to aggressively protect 
miners.
    It's clear that MSHA sometimes needs a push from Congress. Last 
year's MINER Act was one such push. It did not address all of the 
lessons we learned and continue to learn from the tragedies at Sago, 
Aracoma Alma, and Darby. But it was a push in the right direction.
    In today's hearing, we want to hear about the progress MSHA is 
making in implementing that Act of Congress, whether MSHA is being 
sufficiently pro-active in improving mine safety even beyond the MINER 
Act, and what tools MSHA may need to better carry out its mission to 
properly regulate and enforce the law.
    I look forward to hearing the testimony.
    Thank you.
                                 ______
                                 
    Mr. McKeon. Thank you, Mr. Chairman; and thank you for 
convening this hearing.
    I welcome today's witnesses and, in particular, Chairman 
Rahall and Congresswoman Capito for testifying and also for 
joining us shortly for our discussion with the other witnesses 
we will have before us. I welcome you both back to the 
committee room where you testified last year, along with your 
West Virginia colleague, Mr. Mollohan, and five other House 
Members, to provide feedback on the Federal response to last 
year's mine tragedies, discussed mine safety technology and 
outlined incentive initiatives to improve the safety of U.S. 
mines.
    Notably, that hearing of our Workforce Protection 
Subcommittee was the only venue in Washington which all members 
of the West Virginia delegation provided official testimony, 
testimony that helped to trigger the most dramatic mine safety 
overhaul in decades.
    Congresswoman Capito, in the days following the Sago mine 
tragedy, you helped provide valuable leadership to move the 
investigative and legislative processes ahead. In particular, I 
commend your work with my former committee colleagues, Mr. 
Norwood and Mr. Boehner, for securing a Department of Labor 
decision to reverse its policy of denying all requests under 
the Freedom of Information Act for notes taken by Mine Safety 
and Health Administration inspectors during the on-site mine 
inspections until a case has been officially closed.
    This policy change provided valuable information to 
lawmakers, the news media and, most important of all, the 
families of mine workers. In fact, just a week ago, MSHA issued 
its final accident investigation report regarding the Sago 
disaster; and I would note that without the work of 
Congresswoman Capito none of the notes gathered by MSHA 
inspectors at that mine would have been available to the public 
until these past several days.
    Mr. Stickler, I also thank you for agreeing to testify this 
morning. I am particularly eager to hear your testimony and 
answers to this panel's questions regarding MSHA's recently 
completed investigation.
    In its report, your agency concludes that lightning running 
through a metal conduit in a sealed area of the mine served as 
the source of the blast, igniting methane gas which in turn 
blew out recently constructed omega block seals. I am hopeful 
we can have an honest and open-minded conversation about what 
led to these findings. Just as importantly, I am hopeful we can 
do so in a fair and straightforward manner. Part of improving 
practices both inside a mine and investigating incidents at a 
mine is learning from past mistakes, and I hope we will do just 
that.
    Mr. Stickler, I also look forward to hearing from you about 
your agency's implementation of last year's MINER Act. As I 
understand it, MSHA has met each of its congressionally 
mandated deadlines to implement the MINER Act; and, similarly, 
labor and industry leaders have been working in good faith to 
bolster mine safety through available and ever-changing 
technology. Just as my colleagues do, I am hopeful that this 
law can and will be implemented just as quickly as possible.
    Mr. Chairman, in addition to universal bipartisan support 
in the Senate, the MINER Act enjoyed strong support from the 
Mine Workers of America, the National Mining Association and a 
bipartisan group of House Members from key mining States. In 
the months ahead, just as we have demonstrated last year, I am 
convinced this committee will continue to track this issue 
closely and fairly with an eye toward all stakeholders.
    With that, I again thank our witnesses and look forward to 
this morning's discussion.
    [The prepared statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                 Member, Education and Labor Committee

    Mr. Chairman, thank you for convening this hearing. I welcome 
today's witnesses, and in particular, I'd like to thank Congressman 
Rahall and Congresswoman Capito for testifying and also for joining us 
shortly for our discussion with the other witnesses we'll have before 
us. I welcome you both back to our Committee room, where you testified 
last year--along with your West Virginia colleague, Mr. Mollohan--and 
five other House Members--to provide feedback on the federal response 
to last year's mine tragedies, discuss mine safety technology, and 
outline initiatives to improve the safety of U.S. mines. Notably, that 
hearing of our Workforce Protections Subcommittee was the only venue in 
Washington at which all Members of the West Virginia delegation 
provided official testimony--testimony that helped to trigger the most 
dramatic mine safety overhaul in decades.
    Congresswoman Capito, in the days following the Sago Mine tragedy, 
you helped provide valuable leadership to move the investigative and 
legislative processes ahead. In particular, I commend your work with my 
former Committee colleagues, Mr. Norwood and Mr. Boehner, for securing 
a Department of Labor decision to reverse its policy of denying all 
requests under the Freedom of Information Act for notes taken by Mine 
Safety and Health Administration inspectors during on-site mine 
inspections until a case has been officially closed. This policy change 
provided valuable information to lawmakers, the news media, and--most 
important of all--the families of mine workers. In fact, just a week 
ago, MSHA issued its final accident investigation report regarding the 
Sago disaster--and I would note that without the work of Congresswoman 
Capito, none of the notes gathered by MSHA inspectors at that mine 
would have been available to the public until these past several days.
    Mr. Stickler, I also thank you for agreeing to testify this 
morning. I am particularly eager to hear your testimony and answers to 
this panel's questions regarding MSHA's recently-completed 
investigation. In its report, your agency concludes that lightning 
running through a metal conduit in a sealed area of the mine served as 
the source of the blast, igniting methane gas which in turn blew out 
recently-constructed ``omega block'' seals. I am hopeful we can have an 
honest and open-minded conversation about what led to these findings. 
Just as importantly, I am hopeful we can do so in a fair and 
straightforward manner. Part of improving practices, both inside a mine 
and in investigating incidents at a mine, is learning from past 
mistakes. I hope we will do just that.
    Mr. Stickler, I also look forward to hearing from you about your 
agency's implementation of last year's MINER Act. As I understand it, 
MSHA has met each of its congressionally-mandated deadlines to 
implement the MINER Act, and similarly, labor and industry leaders have 
been working in good faith to bolster mine safety through available--
and ever-changing--technology. Just as my colleagues do, I am hopeful 
that this law can and will be implemented just as quickly as possible.
    Mr. Chairman, in addition to universal, bipartisan support in the 
Senate, the MINER Act enjoyed strong support from: the United Mine 
Workers of America; the National Mining Association; and a bipartisan 
group of House Members from key mining states. In the months ahead, 
just as we demonstrated last year, I'm convinced this Committee will 
continue to track this issue closely and fairly--with an eye toward all 
stakeholders. With that, I again thank our witnesses and look forward 
to this morning's discussion.
                                 ______
                                 
    Chairman Miller. Thank you.
    Our first panel will be made up of Congressman Nick Rahall, 
who has been a member of the United States House of 
Representatives, representing West Virginia's Third 
Congressional District, since 1977. He is currently the 
chairman of the House Resources Committee. And Congresswoman 
Shelley Moore Capito, representing West Virginia's Second 
Congressional District since 2001.
    Welcome, both of you, to the committee. We look forward to 
your testimony; and we thank you for your leadership in the 
aftermath of these accidents and the leadership of your State, 
I think, in really showing the way to the rest of us and what 
can be done to improve the margins of safety for workers and 
for their families.
    You will both be invited to sit and participate in the 
hearing under the unanimous consent agreement. I know you have 
busy schedules, but as long as you can remain with us, you are 
more than welcome to stay and to participate.
    We will begin, Congressman Rahall, with you.

STATEMENT OF THE HON. NICK RAHALL, A REPRESENTATIVE IN CONGRESS 
                FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman. I certainly appreciate 
your leadership in having this hearing today as well as that of 
the ranking member, Mr. McKeon; and I want to thank you for 
allowing me to testifyas well.
    I think it should be noted that there are members of 
victims' families from the Sago mine with us today. We 
certainly commend Debbie Hamner and Sara Bailey for their 
courageous leadership. Every time there is a hearing or event 
here in our Nation's capital, they are here to ensure that the 
loss of their loved ones was not in vain; and I salute their 
courage and tenacity.
    We are here in large part because of the sacrifices and 
losses of the coal miners in my district and across West 
Virginia and across our Nation. We are also here because of an 
unfortunate lack of oversight for too many years by the 
Congress, the people's branch, the miners' branch, if you will, 
of our Federal Government.
    The 1969 and 1977 acts provided the Secretary of Labor with 
vast authorities to protect the health and safety of our 
miners, including those we will be talking about today. But 
somewhere along the way, probably as it lumbered along under 
the control of too many managers who were beholding to the 
industry, the agency lost sight of its priorities.
    This committee, under your leadership, Chairman Miller, is 
helping to ensure that the Mine Safety and Health 
Administration remembers who its constituency really is; and I 
commend you, Mr. Chairman, and members of this committee for 
doing just that.
    In recent weeks, we have seen the release of three weighty 
reports that resulted from MSHA's investigations into the 
disasters at Sago, Alma and Darby of last year. Each of these 
reports contains insight into how enforcement of the law proved 
inadequate and how an MSHA truly devoted to seeking better 
safety technology could have saved lives.
    Mr. Chairman, I am proud to be able to say that my home 
State of West Virginia has been a real leader in pushing for 
advances in the coal fields. The State of West Virginia is 
taking steps that will save lives and prevent harm to the 
health of those men and women who toil in an inherently 
dangerous industry that is critically important to America's 
economic prosperity and our national security. It has moved 
ahead rapidly to improve more modern communications equipment 
in emergency shelters.
    MSHA could benefit from an injection of the sense of 
urgency that has taken hold in my State. Unfortunately, MSHA 
has not committed itself to any timeline that would mandate the 
use of refuge chambers which we did visit this morning 
together; and it refuses to reconsider its rules even 
temporarily governing the use of belt air ventilation, which is 
the subject of legislation that I have introduced, H.R. 576, 
that is pending before this committee.
    When it comes to introducing new technologies, coal miners 
will undoubtedly benefit from a deliberative, well-researched 
process. But it would be shameful if that process were used as 
an excuse for further delay and inaction.
    I said well before its passage that the MINER Act was a 
good, solid start; and I commend this committee and I commend 
the administration for signing the bill into law. It set 
deadlines and improvements in emergency breathing and 
communications, lifelines, seals and rescue teams. But, as I 
said then and will say again today, it is only the beginning.
    With the new funding that the Congress has provided to 
NIOSH to expedite improvements in safety technology--and I 
emphasize this point, Mr. Chairman--Federal research can 
produce emergency breathing and communications equipment and 
refuge chambers that go beyond anything that is being required 
in West Virginia today. But the new technologies approved in my 
State are an advanced generation that we all hope will spawn 
even greater advances in the years ahead.
    We should all view mine safety as an ever-changing, always 
improving progression. So while my State is pressing operators 
to invest millions to deploy specified technologies, it is also 
asking for assurances from MSHA that those investments are not 
being made in vain.
    We are anxious for MSHA to eventually catch up. We are as 
well hoping for cooperation so that when MSHA does catch up 
with its own regulations and technology approvals, good actors 
such as we have in West Virginia will not be penalized for 
acting sooner rather than later.
    Mr. Chairman, our responsibility today is oversight. The 
Congress must continue to demand an MSHA that does its job and 
does it aggressively; and when the cameras are turned off and 
the media attention goes elsewhere, the Congress must continue 
to demand that MSHA do its job. Neither MSHA nor the State of 
West Virginia nor those of us in the Congress concerned with 
miners' health and safety can ever rest, consider the job done.
    Because the job will never be done. One-third of coal mines 
still do not have at least two SCSRs, self-rescuers, for every 
miner underground; truly wireless communications and tracking 
is still not available; emergency response plans are still not 
fully approved by MSHA; evacuation drills and training remain 
inadequate; pre-shift examinations are too often incomplete; 
and there are still too few mine rescue teams.
    What is MSHA doing to correct these inefficiencies and when 
will coal miners begin to see the difference underground? These 
are the questions that merit answers, and I am sure the 
committee will explore today.
    I thank you again, Mr. Chairman, for affording me this 
courtesy to appear before you. I commend you and members of 
this committee for your dedication to coal miners' health and 
safety, and I look forward to finding the answers to questions 
and continuing to work together for the benefit of our miners 
and their families.
    Chairman Miller. Thank you.
    [The statement of Mr. Rahall follows:]

   Prepared Statement of Hon. Nick J. Rahall II, a Representative in 
                Congress From the State of West Virginia

    I thank you, Mr. Chairman, for your courtesy in allowing me to 
testify before the Committee today.
    We are here--in large part--because of the sacrifices and losses of 
the coal miners in my district and across West Virginia.
    We are also here because of an unfortunate lack of oversight for 
too many years by the Congress--the people's branch, the miners' 
branch--of our federal government.
    The 1969 and 1977 Acts provided the Secretary of Labor with vast 
authorities to protect the health and safety of our miners--including 
those we will be talking about today.
    But somewhere along the way, probably as it lumbered along under 
the control of too many managers who were beholden to the industry, the 
agency lost sight of its priorities.
    This Committee is helping to ensure that the Mine Safety and Health 
Administration remembers who its constituency really is, and I commend 
you, Mr. Chairman, and the Members of this Committee for that.
    In recent weeks, we have seen the release of three weighty reports 
that resulted from MSHA's investigations into the disasters at Sago, 
Alma, and Darby last year.
    Each of these reports contains insight into how enforcement of the 
law proved inadequate and how an MSHA truly devoted to seeking better 
safety technology could have saved lives.
    Mr. Chairman, I am proud to be able to say that my State has been a 
real leader in pushing for advances in the coalfields.
    The State of West Virginia is taking steps that will save lives and 
prevent harm to the health of those men and women who toil in an 
inherently dangerous industry that is critically important to America's 
economic prosperity and national security.
    It has moved ahead rapidly to approve more modern communications 
equipment and emergency shelters.
    MSHA could benefit from an injection of the sense of urgency that 
has taken hold in my state. Unfortunately, MSHA has not committed 
itself to any timeline that would mandate the use of refuge chambers.
    And it refuses to reconsider its rules, even temporarily, governing 
the use of belt-air ventilation ( which is the subject of legislation I 
introduced, H.R. 576, that is pending before this committee.
    When it comes to introducing new technologies, coal miners will 
undoubtedly benefit from a deliberative, well-researched process.
    But it would be shameful if that process were used as an excuse for 
further delay and inaction.
    I said well before its passage that the MINER Act was a good solid 
start. It set deadlines for improvements in emergency breathing and 
communications, lifelines, seals, and rescue teams.
    With the new funding that the Congress has provided to NIOSH to 
expedite improvements in safety technology--and I emphasize this point, 
Mr. Chairman--federal research can produce emergency breathing and 
communications equipment and refuge chambers that go beyond anything 
that is being required in West Virginia today.
    But the new technologies approved in my State are an advanced 
generation that we all hope will spawn even greater advances in the 
years ahead. We should all view mine safety as an ever-changing, 
always-improving progression.
    So while my state is pressing operators to invest millions to 
deploy specified technologies, it is also asking for assurances from 
MSHA that those investments are not being made in vain.
    We are anxious for MSHA to eventually catch up. We are, as well, 
hoping for cooperation so that when MSHA does catch up with its own 
regulations and technology approvals, good actors will not be penalized 
for acting sooner rather than later.
    Mr. Chairman, our responsibility today is oversight. The Congress 
must continue to demand that MSHA do its job, and that it do it 
aggressively.
    And when the cameras are turned off and the media attention goes 
elsewhere, the Congress must continue to demand that MSHA do its job.
    One-third of coal mines still do not have at least two SCSRs for 
every miner underground.
    Truly wireless communications and tracking is still not available.
    Emergency response plans are still not fully approved by MSHA.
    Evacuation drills and training remain inadequate.
    Pre-shift examinations are too often incomplete.
    There are still too few mine rescue teams.
    What is MSHA doing to correct these deficiencies, and when will 
coal miners begin to see the differences underground?
    These are the questions that merit answers. I thank you again, Mr. 
Chairman, for affording me this courtesy and I look forward to finding 
the answers to these questions and continuing to work together for the 
benefit of miners and their families.
                                 ______
                                 
    Chairman Miller. Congresswoman Capito?

STATEMENT OF THE HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mrs. Capito. Thank you, Chairman Miller, Ranking Member 
McKeon and members of the committee, for the opportunity to 
testify at the hearing on the effectiveness of MSHA's mine 
safety and health programs.
    It has been 17 months since the devastating month of 
January, 2006, that saw 16 miners die in West Virginia, 
including 12 at the Sago mine in my district. During this time, 
we have worked together, the congressional delegation, the 
committee and members from both sides of the aisle, to pass 
critical mine safety legislation and provide needed oversight 
to MSHA and NIOSH as they carry out their important 
responsibilities.
    It became clear immediately after Sago and Aracoma that 
many aspects of mine safety and emergency response were 
overlooked. The MINER Act addressed the obvious shortcomings in 
our response to accidents. I am pleased that MSHA has 
implemented emergency oxygen requirements pursuant to that Act 
that will ensure a 96-hour supply of emergency oxygen or its 
equivalent for all miners. Regulations for mine rescue teams 
should be completed this year.
    It is important that we monitor the work of MSHA, NIOSH and 
the required interagency working group on communications 
technology. Nearly a year has passed since the MINER Act's 
passage, and we must continue to make progress and ensure that 
the deadline for implementing two-way communications devices is 
met, if not sooner, preferably sooner.
    I am very pleased, as Congressman Rahall said, that our 
State of West Virginia has been a national leader in terms of 
beginning the process of getting rescue shelters to our miners. 
In March of this year, the State approved five types of 
shelters for use in the State's underground mines and gave mine 
operators until April 15 to submit shelter plans to the Office 
of Miners' Health, Safety and Training.
    Progress has been slower on the national level in terms of 
evaluating and approving these shelters. I understand the 
concern of some regarding blast standards for a secondary blast 
explosion and with respect to the chambers, but I also share 
MSHA's belief expressed at hearings earlier this year--or last 
year--that evacuation must be the first option for miners in an 
emergency situation.
    Nonetheless, NIOSH and MSHA must speed up their process and 
ensure that miners across the country will have access to these 
life-saving chambers as soon as possible. Again, it has been 17 
months since Sago demonstrated that evacuation is not always 
possible. West Virginia has taken steps towards ensuring our 
miners will have access to these shelters; and the rest of the 
Nation should, too.
    Many of us pledged as we worked to pass the MINER Act we 
would return to address further regulations and legislation 
necessary to prevent future accidents following the completion 
of reports of Sago and Aracoma. This hearing is a step towards 
fulfilling that commitment, and thank you for this.
    There is much we can learn from the accident reports. 
Several things I think we need to act on and swiftly address.
    First, the seals used in the Sago mine were not constructed 
properly. When the omega block seals would not have withstood 
the force of the Sago explosion that MSHA estimated at 93 psi 
even if they were properly constructed, proper installations 
could be the difference between life and death in a future 
accident. It is important that mine operators, contractors and 
MSHA focus on the proper installation of these seals.
    The MINER Act requires MSHA to update its regulations on 
sealing abandoned areas by the end of this year. I am pleased 
MSHA has acted to increase the 20 psi alternative for seals, 
but I hope the final emergency temporary standard will go 
further in addressing some of the issues we saw at Sago.
    MSHA's Sago report found that energy from a lightning 
strike travelled along an ungrounded pump cable left in a 
sealed-off area. Current regulations would not require that 
pump cable to be removed; and, indeed, it is commonplace for 
items to be left behind the seals when an area is abandoned. 
Clearly, this issue must be re-evaluated by MSHA and, if 
necessary, by this committee to ensure that items that could 
turn into conductors are not allowed to remain in a sealed 
area.
    The explosive range for methane is between 5 and 15 percent 
of the air. In a sealed area, methane will start below the 
explosive range, pass through the range and eventually become 
too highly concentrated to explode. This makes it crucial that 
companies and inspectors monitor methane levels in their 
abandoned areas, yet no regulation requires the monitoring of 
air in the sealed area. It is almost unbelievable that 1992 
MSHA regulations required a sampling tube that would allow for 
the testing of air in the sealed-off areas but failed to 
actually require that testing be carried out.
    We know today that MSHA's 1992 regulation on seals were 
wrong. This underscores the importance that MSHA get it right 
when it comes to the forthcoming regulation on seal strength 
and addressing the removal of items in sealed areas.
    The Aracoma tragedy points out the need for an increase of 
inspectors; and we have worked on that and funded that--an 
increase we have already begun--in order to catch obvious 
violations.
    I am anxiously awaiting the results of MSHA's internal 
investigation of its own actions in the lead-up to these 
accidents but in particular the one in Aracoma. MSHA inspectors 
had been at the mine just weeks before the accident and failed 
to note critical safety violations and see that they were 
addressed. We need to know why and take the necessary steps, 
whether it is updated training for inspectors or another 
solution, to ensure that all hazards, and particularly those 
with the potential to cause a loss of life, are identified.
    The MINER Act was a positive step in getting serious about 
the safety of our Nation's coal mines, as we said, when it 
passed, but it is not a stopping point. Congress must ensure 
that MSHA properly and expediently fulfills its obligations 
under the law and continues oversight to ensure that 
requirements are not diluted over time. It is important to note 
that most of the provisions of the MINER Act did not grant MSHA 
new authority. It instead required the agency to use its 
existing authority to address critical facets of mine safety 
and rescue and response. We should stand ready to legislate 
again to address issues that could prevent accidents and lead 
to safer coal mines if the agency needs additional authority or 
fails to act with necessary regulations.
    On behalf of the many miners in West Virginia who I 
represent, I want to thank you. I want to thank this committee 
for your dedication to ensuring safer mines, and I look forward 
to working with you as we continue our efforts. I look forward 
to answering any questions you might have and joining you to 
ask questions to the MSHA and thank you for the opportunity.
    [The statement of Mrs. Capito follows:]

 Prepared Statement of Hon. Shelley Moore Capito, a Representative in 
                Congress From the State of West Virginia

    Chairman Miller, Ranking Member McKeon, and Members of the 
Committee, thank you for the opportunity to testify at this hearing on 
the effectiveness of MSHA's mine safety and health programs. It has 
been 17 months since the devastating month of January 2006 that saw 16 
miners die in West Virginia--including 12 at the Sago mine in my 
district.
    During this time we have worked together--West Virginia's 
congressional delegation, this committee, and other members from both 
sides of the aisle to pass critical mine safety legislation and provide 
needed oversight to MSHA and NIOSH as they carry out their important 
responsibilities. It became clear immediately after Sago and Aracoma 
that many aspects of mine safety and emergency response were 
overlooked.
    The MINER Act addressed the obvious shortcomings in our response to 
accidents. I am pleased that MSHA has implemented emergency oxygen 
requirements pursuant to the act that will ensure a 96 hour supply of 
emergency oxygen or its equivalent for all miners. Regulations for mine 
rescue teams should be completed this year. It is important that we 
monitor the work of MSHA, NIOSH and the required interagency working 
group on communications technology. Nearly a year has passed since the 
MINER Act's passage and we must continue making progress and ensure 
that the deadline for implementing two-way communication devices in 
mines is met.
    I am very pleased that my state of West Virginia has been a 
national leader in terms of beginning the process of getting rescue 
shelters to miners. In March of this year, the state approved 5 types 
of shelters for use in the states underground mines and gave mine 
operators until April 15 to submit shelter plans to the Office of 
Miners' Health, Safety, and Training. One of these approved shelters, 
the inflatable LifeShelter was demonstrated outside prior to today's 
hearing.
    Progress has been slower on the national level in terms of 
evaluating and approving these shelters. I understand the concerns of 
some regarding blast standards for a secondary explosion with respect 
to the refuge chambers. I also share MSHA's belief--expressed at 
hearings last year during consideration of the MINER Act that 
evacuation must be the first option for miners in an emergency 
situation.
    Nonetheless, NIOSH and MSHA must speed up their process and ensure 
that miners across the country will have access to these life saving 
chambers as soon as possible. Again, it has been 17 months since Sago 
demonstrated the evacuation is not always possible. West Virginia has 
taken steps towards ensuring that our miners will have access to 
shelters, and the rest of the nation should too.
    Many of us pledged as we worked to pass the MINER ACT that we would 
return to address further regulations or legislation necessary to 
prevent future accidents following the completion of reports from the 
Sago and Aracoma accidents. This hearing is a step towards fulfilling 
that commitment, and there is much we can learn from the accident 
reports.
    Both MSHA and the West Virginia Office of Mine Safety and Training 
found that none of the safety violations at the Sago mine directly 
contributed to the explosion or its deadly result. However, clearly 
issues raised that MSHA and the mining community should learn from and 
act swiftly to address. First, the seals used in the Sago mine were not 
constructed properly. While the OMEGA block seals would not have 
withstood the force of the Sago explosion that MSHA estimates was 
greater than 93 psi, even if they were properly constructed, proper 
installation of seals could be the difference between life and death in 
a future accident. It is important that mine operators, contractors, 
and MSHA inspectors focus on the proper installation of seals.
    The MINER Act requires MSHA to update its regulations on the 
sealing of abandoned areas by the end of this year. I am pleased that 
MSHA has acted to increase the 20 psi requirement for alternative 
seals, but I hope that the final Emergency Temporary Standard will go 
further in addressing some of the issues we discovered at Sago.
    MSHA's Sago report found that energy from a lightning strike 
traveled along an ungrounded pump cable left in the sealed off area. 
Current regulations would not require that pump cable to be removed, 
and indeed it is commonplace for items to be left behind the seals when 
an area is abandoned to mining.
    Clearly this issue must be reevaluated by MSHA and if necessary, by 
this committee to ensure that items that could turn into conductors are 
not allowed to remain in sealed areas.
    The explosive range for methane is between 5 and 15 percent of the 
air. In a sealed area methane will start below the explosive range, 
pass through the range, and eventually become too highly concentrated 
for an explosion due to a lack of oxygen.
    This makes it crucial that companies and inspectors monitor methane 
levels in abandoned areas so that they know if the concentration is 
becoming inert or if the mixture is within a danger zone. Yet no 
regulation requires the monitoring of air in the sealed area. It is 
almost unbelievable that 1992 MSHA regulations required a sampling tube 
that would allow for the testing of the air in sealed off areas, but 
failed to actually require that testing be carried out.
    We know today that MSHA's 1992 regulations on seals were wrong. 
This underscores the importance that MSHA get it right when it comes to 
the forthcoming regulation on seal strength and address the removal of 
items left in the abandoned areas.
    The Aracoma tragedy points out the need for an increase in 
inspectors at MSHA--an increase we have already begun--in order to 
catch obvious violations. At Aracoma, critical stoppings between the 
No. 7 Belt Air course and the intake air course for the 2 Section that 
could have prevented smoke from entering the escapeway were not in 
place, the mine's approved ventilation plan was not followed, and 
tragically the valve that provided water to the mine's fire suppression 
system was closed.
    I am anxiously awaiting the results of MSHA's internal review of 
its own actions in the lead up to these accidents, but in particular at 
Aracoma.
    MSHA inspectors had been in the mine just weeks before the accident 
and failed to note critical safety violations and see that they were 
corrected.
    We need to know why, and take the necessary steps--whether it is 
updated training for inspectors or another solution to ensure that all 
hazards, and particularly those with the potential to cause loss of 
life are identified.
    The MINER Act was a positive start in getting serious about the 
safety of our nation's coal mines. As we said when it passed, however, 
it is not a stopping point. Congress must ensure that MSHA properly and 
expediently fulfills its obligations under the law and continues 
oversight to ensure that requirements are not diluted over time. It is 
important to note that most provisions of the MINER Act did not grant 
MSHA new authority--it instead required the agency to use its existing 
authority to address critical facets of mine rescue and response. We 
should stand ready to legislate again to address issues that could 
prevent accidents and lead to safer coal mines if the agency needs 
additional authority or fails to act with necessary regulations.
    On behalf of the many miners in West Virginia whom I represent, I 
want to thank this committee for your dedication to ensuring safer 
mines and I look forward to working with you as we continue our efforts 
to protect miners. I look forward to answering your questions and 
joining you to ask questions of MSHA witnesses.
                                 ______
                                 
    Chairman Miller. Thank you both very much for your 
testimony; and, again, if you have questions, we would invite 
you to participate and sit as part of the committee.
    We will then begin with our second panel. The first member 
of the panel is Dan Bertoni, who is the Director of the 
Education, Workforce and Income Security Team at the Government 
Accountability Office.
    Next will be Richard Stickler, who is the Assistant 
Secretary of Mine Safety and Health at the Department of Labor. 
Assistant Secretary Stickler was Director of the Pennsylvania 
Bureau of Deep Mine Safety from 1997 to 2003. He received his 
bachelor of science degree in general engineering from Fairmont 
State University in 1968 and certified as a mine safety 
professional by the International Society of Mine Safety 
Professionals.
    Next, Jonathan Snare, who is the Acting Solicitor of Labor. 
Solicitor Snare served as Acting Assistant Secretary of the 
Occupational Safety and Health Administration. He received his 
BA from the University of Virginia and law degree from 
Washington Lee University.
    Professor R. Larry Grayson has chaired the Mine Safety and 
Health Technology and Training Commission established by the 
mining industry in 2006 after the serious accidents of that 
year. Dr. Grayson is Chairman of the Department of Mining and 
Nuclear Engineering at the University of Missouri-Rolla and was 
previously in charge of mine safety work at the National 
Institute of Occupational Safety and Health and received his 
Ph.D. in engineering of mines at West Virginia University.
    J. Davitt McAteer has served in the Clinton administration 
both as Assistant Secretary of Mine Safety and Health and as 
Acting Solicitor. He was appointed by the Governor of West 
Virginia to chair the panel that investigated the causes of the 
Sago and Aracoma Alma accidents, and Mr. McAteer is vice 
president for sponsored programs at the Wheeling-Jesuit 
University in West Virginia. He graduated from West Virginia 
University and College of Law.
    Welcome to the committee. We look forward to your 
testimony. When you begin to testify, a green light will go on; 
and then, when you have a minute remaining, which will be about 
4 minutes into your testimony, a yellow light will go on and 
then a red light. But we will certainly allow you to finish 
your thoughts and the purposes of your remark.
    Congressman Rahall mentioned that we were joined by some 
family members here of the accidents. He mentioned Debbie 
Hamner and Sara Bailey who are here, but they have also been 
joined by Peggy Cohen, who is the daughter of Fred Ware who was 
killed in the accidents. We welcome them and again thank them 
for their commitment on this issue.
    Mr. Bertoni, we are going to begin with you.

 STATEMENT OF DAN BERTONI, DIRECTOR, EDUCATION, WORKFORCE AND 
     INCOME SECURITY TEAM, GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Bertoni. Thank you, Mr. Chairman, members of the 
committee. Good morning. I am pleased to be here to discuss 
worker safety issues in underground coal mining.
    The tragic accidents that occurred early last year brought 
the Nation's attention to the daily perils facing mine workers. 
In response, the Congress and the Department of Labor's Mine 
Safety and Health Administration, or MSHA, took steps to 
prevent future fatalities. The Mine Improvement and New 
Emergency Response Act of 2006 required mine operators and MSHA 
to undertake a variety of reforms to enhance emergency 
response. MSHA also implemented several new safety and health 
standards. However, additional actions are needed to further 
enhance mine safety.
    My testimony today is based on two GAO reports issued today 
and will focus on three key areas: challenges the underground 
coal mines face in preparing for mine emergencies; MSHA's role 
in miner training and other activities critical to mine safety 
and health; and how civil penalties are assessed when mine 
operators violate safety and health standards.
    In summary, underground coal mine operators reported 
challenges meeting new training and mine rescue team 
requirements. In March, 2006, MSHA directed mine operators to 
conduct emergency evacuation drills every 90 days, including 
drills that simulate actual emergency conditions such as fire 
or explosions. However, as of February, 2007, we found that 
half the mines had not yet conducted any simulation drills, 
primarily due to lack of special training facilities and the 
cost of such training.
    We also found that although MSHA had information on 
alternative tools and resources for conducting training under 
simulated conditions, such as smoke-filled mines, it was not 
being systematically shared with all mine operators.
    Mine operators also anticipate some difficulties stemming 
from the MINER Act requirement that rescue teams train at least 
annually at the mines they serve. This change could pose a 
challenge for rescue teams that serve many or all of the 
particular State's mines. For example, depending on how the 
final regulations are implemented, one official told us its 
team could be required to conduct 120 annual training exercises 
compared, to the 12 it currently conducts.
    In anticipation of the new requirements, some operators 
have begun making changes to their rescue teams, while others 
are still assessing the potential costs of training and 
equipping such teams.
    Regarding MSHA, we identified opportunities for the agency 
to improve its oversight of miner training and to take 
additional steps to ensure that it maintains a skilled cadre of 
mine inspectors. MSHA approves mine operators' training plans 
and inspects their training records but does not have 
consistent standards for certifying instructors, current 
information on instructor location or skills or any continuing 
education requirements for approved instructors to ensure that 
they update their knowledge of emerging safety and technology 
issues. MSHA also does not adequately evaluate training 
sessions or assess how well miners are learning the skills 
being taught.
    To better position itself to address future workforce 
needs, MSHA has taken steps to improve the mine inspector 
hiring process, including developing an upfront screening tool 
to assess the applicant's skills and expedite hiring. The 
agency also obtained authority to hire inspectors under a 
broader range of pay scales, thus enhancing its ability to 
obtain and retain quality staff.
    However, MSHA has not yet developed a comprehensive 
strategy to address impending retirements to ensure that it 
continues to meet its mission goal of enhancing mine safety. 
Over 40 percent of MSHA's inspectors will be eligible for 
retirement over the next 5 years, and between 32 and 47 percent 
will likely leave in their first year of eligibility. We have 
recommended that MSHA develop tactical and strategic plans with 
specific goals for mitigating the loss of seasoned and 
experienced inspectors.
    Finally, in regard to penalties, we found that, while most 
proposed penalties are paid by mine operators, a small 
percentage of cases involving more serious and higher dollar 
amounts are appealed and often substantially reduced. Between 
1996 and 2006, MSHA assessed about 500,000 penalties. About 
32,000 penalties were contested. Nearly half of those were 
ultimately reduced by about 50 percent, regardless of the level 
of gravity and negligence originally noted by MSHA inspectors.
    While MSHA uses a standard formula to calculate penalties, 
other entities involved in the appeals process use methods that 
are more subjective. Thus, in some appealed cases we reviewed, 
it was not always transparent as to how final penalty amounts 
were derived by ALJs.
    MSHA most recently restructured its penalty process in a 
way that will most likely lead to higher penalties and, 
ultimately, more appeals. Thus, going forward, it is important 
that final penalty amount decisions are transparent and contain 
all necessary information. If not, it will be difficult to 
ensure that all entities are consistently applying relevant 
factors and that the impact of penalties and ensuring miner 
safety is not diminished.
    Mr. Chairman, this concludes my statement. I am happy to 
answer any questions that you or other members of the committee 
may have. Thank you.
    Chairman Miller. Thank you.
    [The statement of Mr. Bertoni follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Chairman Miller. Mr. Stickler?

  STATEMENT OF RICHARD STICKLER, ASSISTANT SECRETARY OF MINE 
             SAFETY AND HEALTH, DEPARTMENT OF LABOR

    Mr. Stickler. Chairman Miller, Ranking Member McKeon and 
members of the committee, I am pleased to appear before you 
today to discuss the important actions of the Mine Safety and 
Health Administration in protecting the health and safety of 
the Nation's miners.
    I have been part of the mining community for more than 40 
years. My experience includes working in underground coal mines 
as well as working in and around the mining community every 
day. I know firsthand that every fatality, serious injury is 
devastating to miners, their families and the communities in 
which they live. Let me be very clear that our number one 
priority is to protect the health and safety of America's 
miners.
    MSHA began to implement new policies to protect miners even 
before Congress passed the MINER Act. For example, in March of 
2006, MSHA issued emergency temporary standards addressing many 
of the safety provisions that were ultimately included in the 
MINER Act. We were guided by three basics of mine safety: 
strict enforcement of the law; effective safety training and 
practices for miners, supervisors and managers; and the 
implementation of new technologies that can help achieve a 
safer workplace.
    On enforcement, we would use all the tools available to us 
to achieve our goals. We will be particularly aggressive with 
those mine operators who habitually violate MSHA's standards 
and who seem to view penalties as just another cost of doing 
business. On March 29 of this year, MSHA issued a $1.5 million 
penalty, the largest ever assessed to a coal operator in this 
agency's history.
    MSHA continues to move forward to both implement the MINER 
Act and to enforce provisions of the Mine Act. Over the past 14 
months, MSHA has issued an emergency temporary standard to 
improve mine safety, an emergency mine evacuation rule, a 
program information bulletin raising the required strength of 
seals from 20 psi to 50 psi, a program information bulletin on 
breathable air, a program information letter on flagrant 
violations, a rule implementing increased part 100 civil 
penalties; and we are working to finalize an ETS that will 
strengthen seal requirements.
    In addition, MSHA has trained 14 family liaisons and has 
another major rule in the regulatory process concerning mine 
rescue teams. This rule would improve the training, 
certification and the viability of mine rescue teams.
    While MSHA faces significant challenges to both replace 
enforcement personnel who are retiring and expand their 
enforcement ranks, I believe the agency will meet its goal of 
hiring 170 new enforcement personnel by the end of this fiscal 
year.
    Today, MSHA remains focused on our core mission, to improve 
mine health and safety of America's miners and work toward the 
day when every miner goes home safe and healthy to family and 
friends after every shift of every day. MSHA cannot do this 
alone. The entire mining community must also do their part to 
improve mine safety and health. Working together, we can 
achieve this important goal.
    I thank you for allowing me to testify today, and I look 
forward to answering your questions.
    Chairman Miller. Thank you.
    [The statement of Mr. Stickler follows:]

Prepared Statement of Hon. Richard E. Stickler, Assistant Secretary of 
              Labor, Mine Safety and Health Administration

    Chairman Miller, Ranking Member McKeon, and the Members of the 
Committee, I am pleased to appear before you today to discuss the 
actions the Mine Safety and Health Administration (MSHA) is taking to 
protect the health and safety of our nation's miners. I would also like 
to provide you a report on the significant progress MSHA is making in 
implementing the Mine Improvement and New Emergency Response (MINER) 
Act of 2006, signed by the President on June 15, 2006.
    I have been involved in the coal mining industry for more than 40 
years. My experience includes working shifts in underground coal mines 
as well as working in and around the mine site and mining community 
every day. I know firsthand that every fatality, injury, and illness is 
devastating for miners, their families, and the communities they live 
in.
Accident Investigations
    In March and April, MSHA released the results of its investigations 
of the Aracoma Alma No. 1 and Darby mining accidents of last year. MSHA 
released the results of the Sago investigation last week. The internal 
MSHA reports evaluating MSHA's activities surrounding the Aracoma, 
Darby, and Sago disasters will be released over the next month. In 
these reports, MSHA will review its policies and practices and develop 
action plans to address identified shortcomings.
MSHA Actions to Improve Mine Safety
    Following the tragedy at Sago Mine, MSHA has taken swift action to 
provide new regulatory protections for miners at the same time that it 
has increased its enforcement efforts. For example, MSHA issued an 
emergency temporary standard on March 9, 2006, addressing many of the 
safety provisions that were ultimately included in the MINER Act, such 
as increasing the number of Self-Contained Self-Rescuers (SCSRs) in 
underground coal mines, additional safety training for underground coal 
miners, and immediate notification of mine accidents applicable to all 
mines.
    In 2006, MSHA also stepped up its enforcement actions in both coal 
and metal and non-metal mines, issuing 77,129 citations and orders in 
coal mines, up nearly 12 percent from 69,124 in 2005. MSHA also 
increased the number of citations issued in metal and non-metal mines 
to 62,937, up nearly 7 percent from 59,101 the year earlier. Proposed 
assessments issued by MSHA in 2006 totaled $35 million, up 40 percent 
from $25 million in 2005.
    When the MINER Act became law, even before the publication of the 
new civil penalty regulation, MSHA began enforcing new civil penalties 
for flagrant violations, unwarrantable failures, and failure to 
immediately notify MSHA of mine accidents. MSHA has already issued the 
first ever citations for flagrant violations. Six of these, totaling 
$874,500, were assessed against R&D Coal Company for the October 23, 
2006 death of one of its employees. A flagrant violation is defined in 
the MINER Act as ``a reckless or repeated failure to make reasonable 
efforts to eliminate a known violation of a mandatory safety and health 
standard that substantially and proximately caused, or reasonably could 
have been expected to cause, death or serious bodily injury.'' MSHA 
will continue to use this important enforcement tool to bring about 
future compliance.
    MSHA also initiates special emphasis inspection programs that focus 
special enforcement activities on specific aspects of mining. For 
example, this past February and March, MSHA initiated special emphasis 
inspection programs in Coal Districts 4 in Southern West Virginia and 
District 6 in Eastern Kentucky to examine roof controls plans and roof 
support methods in mines that use retreat mining methods. In District 
4, MSHA issued 234 citations and orders during a two-week period.
    District 6 conducted a special initiative which targeted all mines 
in the district that are conducting or will conduct retreat mining. The 
purpose was to observe retreat mining practices and to ensure that 
adequate safety precautions for retreat mining were included in each 
mine's roof control plan. Between March 5 and 22, 2007, MSHA inspectors 
inspected 33 mines and issued 8 citations related specifically to roof 
control issues. Of the 33 mines involved in the initiative, 21 were 
verified to have adequate safety precautions for retreat mining, and 12 
were required to provide additional safety precautions.
    In February, MSHA also conducted a nationwide targeted Special 
Health Emphasis enforcement program to ensure operator compliance with 
the applicable respirable dust standard at specific mines during normal 
production cycles, and that ventilation and dust control parameters 
were adequate and effective in protecting miners' health at all times. 
Over 1,130 dust samples were collected from February 20th to March 3rd, 
2007 at 61 selected underground coal mines in all eleven coal 
districts. Thirty-two citations and one unwarrantable failure order for 
ventilation plan violations were issued during the health inspections, 
two citations were issued for excessive dust, and 44% of the 
enforcement actions were designated as Significant & Substantial (S&S). 
Further evaluation will be conducted to identify good and bad 
ventilation plans and practices.
Implementing the MINER Act of 2006 and Initiating New Policies
    Last year, Congress passed and the President signed the MINER Act--
the most significant mine safety legislation in nearly 30 years. The 
provisions of the MINER Act that have been implemented by MSHA include:
     The approval or partial approval of emergency response 
plans for the 466 currently active underground coal mines;
     Requiring more Self-Contained Self-Rescue (SCSR) devices 
for each miner in every underground coal mine;
     Requiring flame resistant life lines for evacuation in all 
underground coal mines;
     Mandating additional mine evacuation safety training and 
training on the use of SCSRs;
     Implementing a new maximum civil penalty of up to $220,000 
for flagrant violations, and new minimum penalties for ``unwarrantable 
failure'' and ``immediate notification'' violations.
     Requiring all mine operators to notify MSHA immediately 
after an accident;
     Installing redundant underground-to-surface communications 
systems;
     Requiring a supply of breathable air to miners who are 
trapped in underground coal mines;
     Training 14 MSHA officials to be Family Liaisons;
     Requiring post accident tracking of underground miners 
and;
     Requiring realistic ``expectations'' training for miners 
who use SCSRs.
    Keeping miners safe and healthy is MSHA's top priority. 
Implementation of the MINER Act is critical to achieving this goal, and 
I am proud of MSHA's work in this regard. I want to review with the 
Committee in detail the objectives of the MINER Act that MSHA has 
already met.
Emergency Mine Evacuation
    On December 8, 2006, the Department of Labor published its final 
rule on Emergency Mine Evacuation in the Federal Register. The final 
rule helps ensure that miners, mine operators, and MSHA will be able to 
respond quickly and effectively in the event of an emergency. The rule 
includes requirements for mine operators to provide increased 
capability for mine emergency response and evacuation; includes 
additional requirements for SCSRs and their storage; improved training 
and escape drills; lifelines, tethers, and multi-gas detectors; and 
accident notification. This final rule includes many provisions that 
MSHA initially included in the Emergency Temporary Standard issued 
March 9, 2006, and were later incorporated in the MINER Act. The 
provisions include:
     Increased numbers and storage of SCSRs;
     Improved mine emergency evacuation drills and training;
     Installation and maintenance of directional lifelines in 
underground coal mines, which must be fire resistant within three 
years; and
     Immediate accident notification for all mines.
    Once again, MSHA went beyond the requirements of the MINER Act by 
requiring mine operators to provide multi-gas detectors to miners 
working alone and to each group of miners. While this provision was not 
part of the MINER Act, MSHA believes it is important to highlight the 
addition of this requirement in our final emergency mine evacuation 
standard because, in the event of a mine emergency, it will enable 
miners to know whether there are toxic gases in the mine atmosphere.
    This rule was effective immediately on December 8, 2006, with the 
exception of certain training and equipment provisions. All provisions 
are now effective; SCSR training units for annual expectations training 
have now been developed. On March, 30 MSHA published a notice in the 
Federal Register notifying mine operators that the units were 
available. Mine operators must have had a purchase order for these 
training units by April 30 and must conduct training with them within 
60 days of receipt of the units.
    MSHA has also developed an SCSR database to enable the agency to 
locate SCSRs affected by future recalls or other approval actions, and 
to help our enforcement personnel inspect the SCSRs at the mines by 
cross checking reported inventories with units in use. In addition, 
NIOSH and MSHA will use this database to randomly select and collect 
SCSRs deployed at mines for testing in the Long Term Field Evaluation 
Program.
Emergency Response Plans
    The MINER Act requires underground coal mine operators to develop 
and adopt written Emergency Response Plans (ERPs) specific to the mines 
they operate. In accordance with the MINER Act, MSHA required operators 
to submit plans by August 14, 2006. MSHA provided operators with 
guidance related to the requirements for breathable air on February 8, 
2007. This meant that ERPs could only be partially approved. Revised 
ERPs, indicating how breathable air will be provided, were required by 
March 12, 2007. In addition to breathable air, the ERPs must address 
post-accident communications and tracking, lifelines, training, and 
local coordination.
    We are ensuring that the plans are reviewed in a timely manner, 
approved, and implemented for all underground coal mines as specified 
in the Act. As of May 8, 2007, there were 466 active underground coal 
mines. Of those, 261 have submitted ERPs that have been partially 
approved, and another 205 have been fully approved. MSHA is reviewing 
and discussing plan submissions with operators with the goal of 
providing full approval of all submitted plans in the near future.
Post-Accident Breathable Air
    With respect to post-accident breathable air, MSHA issued a Program 
Information Bulletin (PIB) on February 8, 2007, to provide guidance to 
mine operators concerning acceptable quantities and delivery methods in 
underground coal mines. This PIB was placed on MSHA's Web site and was 
distributed widely to the coal mining community.
    The PIB provides the following options for meeting the breathable 
air requirements of the MINER Act:
     Establish boreholes within 2,000 feet of the working 
section; or
     Provide forty-eight hours of breathable air located within 
2,000 feet of the working section of the mine, with contingency 
arrangements to drill boreholes if miners are not rescued within 48 
hours; or
     Provide ninety-six hours of breathable air located within 
2,000 feet of the working section; or
     Provide other options that provide equivalent protection 
based on unique conditions at a mine.
    Methods of providing breathable air (in barricaded or other areas 
that isolate miners from contaminated air) include:
     Drilling boreholes;
     Air line supplied by surface positive pressure blowers; or
     Compressed air cylinders, oxygen cylinders, or chemical 
oxygen generators; and
     Other means that provide 96 hours of breathable air.
    In addition to the PIB, we have also posted related materials on 
MSHA's website, including a hazard awareness information sheet on use 
of compressed air and compressed oxygen; information sheets on methods 
of providing breathable air, including calculations; and questions and 
answers addressing specific breathable air issues.
Post-Accident Communications and Post-Accident Tracking
    Section 2 of the MINER Act requires that each mine evacuation plan 
provide a redundant means of communications with the surface for 
persons underground. It also requires that the plan provide a means of 
tracking the pre-accident location of all underground miners. The MINER 
Act requires that mine operators adopt wireless communications and 
electronic tracking systems by June 2009.
    To comply with the requirements of Section 2, as of May 2, 2007, 
MSHA has met with representatives of 49 communication and tracking 
system companies, and observed the testing or demonstration of 20 post-
accident communications and tracking systems at various mine sites 
around the country. When these systems are presented to MSHA for 
approval, we will expedite the approval process to ensure that safe, 
durable and reliable systems get into the mines as quickly as possible. 
To date, MSHA has approved 19 systems, including four new devices. 
These new devices are:
     The Kenwood portable hand held radio;
     Marco RFID (radio frequency identification) Tracking Tag;
     Matrix Design Group RFID Tracking Tag; and
     NL Technologies Model Standalone WiFi Tracking Tag
    In order to meet the long range communications and tracking 
requirements of the MINER Act, MSHA is reviewing all the available 
technology and working with the National Institute for Occupational 
Safety and Health (NIOSH) and manufacturers to help in the development 
of safe, reliable systems for underground coal mines. MSHA's 
responsibilities are to ensure these devices do not present an 
explosion or fire hazard in the mining environment, and also verify 
that they will function underground , while NIOSH is responsible for 
researching and developing these devices. MSHA has had contact with 137 
parties about systems to track and/or communicate with miners while 
they are underground. However, as of today, there is no truly wireless 
tracking or communications system that meets the requirements of the 
MINER Act.
Mine Rescue Teams
    The MINER Act requires the Department of Labor to issue regulations 
with regard to mine rescue teams by December 2007. These regulations 
must address improved training, certification, availability, and 
composition requirements for underground coal mine rescue teams. MSHA 
is currently drafting a proposed rule to implement the MINER Act 
provisions for mine rescue teams.
Civil Penalties
    After passage of the MINER Act, MSHA promptly increased penalties 
for immediate accident notification and unwarrantable failure 
violations. On March 22, 2007, MSHA published a final rule to increase 
civil penalty amounts for mine safety and health violations; the rule 
became effective on April 23, 2007. Issuance of this rule fulfills 
another requirement of the MINER Act and demonstrates the commitment of 
MSHA to protect the safety and health of our nation's miners.
    As prescribed by the Act, the final rule:
     Establishes a maximum penalty of $220,000 for ``flagrant'' 
violations, as proposed in the President's previous budgets.
     Sets minimum penalty amounts of $2,000 and $4,000 for 
``unwarrantable failure citations and orders.''
     Imposes a minimum penalty of $5,000 (up to a maximum of 
$60,000) for failure to timely notify MSHA of a death or an injury or 
entrapment with a reasonable potential to cause death.
    Other major provisions of the final rule applicable to all mine 
operators and contractors are:
     Increases civil penalties overall--by an estimated 179 
percent using 2005 violation data--targeting the most serious safety 
and health violations with escalating penalties.
     Adds a new provision to increase penalties--
notwithstanding the severity--for operators who repeatedly violate MSHA 
standards.
     Replaces the $60 single penalty with higher formula 
assessments for non-significant and substantial (non-S&S) violations.
Family Liaison Program
    The MSHA Family Liaison Policy has been put into place to provide 
for an MSHA liaison to be with families at the site of a mine accident 
where miners are unaccounted for or there are multiple fatalities. A 
Program Policy Letter has been issued and 14 designated family liaison 
personnel have completed their initial training sessions. The National 
Transportation Safety Board and the American Red Cross have helped 
train these individuals. Three MSHA family liaisons were present in 
Barton, Maryland, to be with the families of the miners during the 
recent accident at Tri-Star Mining Company.
Sealing of Abandoned Areas in Underground Coal Mines
    The MINER Act requires MSHA to issue mandatory heath and safety 
standards relating to the sealing of abandoned areas in underground 
coal mines. The MINER Act requires the health and safety standards to 
``provide for an increase in the 20 psi standard currently set forth in 
section 75.335(a)(2) of title 30, Code of Federal Regulations.''
    As an interim step, last year MSHA issued a temporary moratorium on 
new construction of alternative seals and then raised the psi standard 
for existing and new alternative seals by 150% from 20 to 50 psi. MSHA 
also issued guidance on the design and evaluation of new seals and the 
inspection of existing seals.
    MSHA is currently drafting an emergency temporary standard which 
addresses improved seal strength, design, construction, repair and 
sampling of the atmosphere behind seals.
Technical Study Panel on Belt Air
    Section 11 of the MINER Act required MSHA to establish a Technical 
Study Panel on Belt Air. The purpose of this Panel is to ``provide 
independent scientific and engineering review and recommendations with 
respect to the utilization of belt air and the composition and fire 
retardant properties of belt materials in underground coal mining.'' 
Congress provided the Panel one year from the Panel's appointment to 
issue its report, and the Secretary of Labor is given an additional 180 
days to respond to the Panel's report.
    The charter governing the Panel was published in the Federal 
Register on December 22, 2006. The first two meetings of the Technical 
Study Panel have already taken place--the first on January 9-10, 2007 
and the other on March 28-30 in Pittsburgh, Pennsylvania. The third 
meeting is being held now in Salt Lake City, Utah, and a fourth is 
scheduled for June 20-22 in Birmingham, Alabama. Members of the Panel 
are prominent and experienced mine safety and health professionals. As 
mandated in the MINER Act, two of the Panel members were appointed by 
the Department of Health and Human Services, two by the Department of 
Labor, and two members were appointed by Congress.
Refuge Alternatives
    NIOSH is conducting research and field tests on refuge 
alternatives. By the end of this year, NIOSH is scheduled to report the 
results of the research to the Department of Labor. By mid-2008, in 
accordance with the MINER Act, the Department of Labor will report to 
Congress on the actions MSHA will take in response to the NIOSH report. 
MSHA is aware of requirements by some states for refuge chambers, and 
MSHA is accepting state approved refuge chambers as a means of 
providing breathable air.
Recruitment
    The Emergency Supplemental Appropriations Act of 2006 (P.L.109-234) 
provided an additional $25.6 million for MSHA for coal enforcement, 
including the hiring of coal mine inspectors and other enforcement 
personnel. MSHA is pressing ahead with recruitment, training and 
deployment of the additional 170 coal mine enforcement personnel funded 
by the emergency supplemental appropriation. Through the first three 
quarters of MSHA's hiring plan, 126 new enforcement personnel staff has 
been hired. While MSHA faces significant challenges to both replace the 
enforcement personnel who will likely retire this year and expand our 
enforcement ranks, I am confident that the agency will meet its goal of 
hiring 170 net new personnel. The President's FY 2008 budget request 
includes $16.6 million to maintain these enforcement staff.
    MSHA continues to conduct recruitment drives in local communities 
around the country, and we have hired additional staff at our Mine 
Health and Safety Academy to ensure that we can properly and 
expeditiously train our new inspectors and get them out to the job 
sites where they will make a difference. I believe this training is the 
best, most effective program MSHA has ever had and will enable these 
new inspectors to meet today's challenges. In the end, I strongly 
believe the increased presence of MSHA enforcement staff at the job 
sites will have a positive impact on mine safety and health.
Current Enforcement Activities
    MSHA will use all of the tools available to achieve our goal of 
safer and healthier mines, including tough enforcement, education and 
training, and technology. MSHA will be particularly aggressive with 
those mine operators who habitually violate MSHA standards and seem to 
view penalties as just another cost of doing business. In order to 
better identify these persistent repeat violators, MSHA is developing a 
database to provide for a more objective analysis of accident trends 
and enforcement results. MSHA will use the data developed from this 
database to target those operators who refuse to follow the laws and 
regulations governing mine safety and health.
    One particular tool--pattern of violations--has been in MSHA's 
arsenal for over 30 years but the agency has never used it. The Mine 
Act authorizes MSHA to issue a withdrawal order under certain 
conditions disclosed by an inspection conducted within 90 days after a 
notice that the mine operator has a pattern of violations of mandatory 
standards that could have significantly and substantially contributed 
to mine hazards. MSHA has a regulation that provides for a letter 
warning mine operators that they have a potential pattern of violations 
before the statutory notice is issued. While MSHA has issued such 
letters, it has never proceeded to issue the statutory notice. MSHA has 
recently initiated the development of objective criteria to identify 
mines that may have a pattern of violations. Once this new criteria is 
in place, MSHA will issue pattern of violations notices and orders 
where warranted. This measure is tough, but I believe it is also 
necessary in instances where the safety of miners is routinely 
jeopardized.
    MSHA will also continue to conduct focused inspections on known 
hazards, such as the program we recently completed on retreat mining. 
In addition to implementing the MINER Act, MSHA will continue to 
inspect each underground mine four times annually, and each surface 
mine twice a year, as required by statute.
Conclusion
    MSHA continues to move forward to both implement the MINER Act and 
to enforce the provisions of the Mine Act. Over the past 14 months, 
MSHA has issued--
     An Emergency Temporary Standard to improve mine safety;
     Two major regulations to implement the MINER Act;
     A Program Information Bulletin on breathable air;
     A Program Information Letter on flagrant violations; and
     Another Program Information Bulletin on seals.
    These actions have been taken to implement provisions of the MINER 
Act. In addition, two major rules to implement the MINER Act are in 
various stages of the regulatory process and should be in final form by 
the end of 2007 as mandated by Congress.
    Today, every single person at MSHA remains focused on our core 
mission: to improve the safety and health of America's miners and to 
work toward the day when every miner goes home safe and healthy to 
family and friends, after every shift of every day. MSHA cannot do this 
alone. The entire mining community--mine operators and miners 
included--must also do their part to improve mine health and safety. 
Together MSHA, mine operators and miners can achieve this important 
goal.
    Thank you for allowing me to testify today. I look forward to 
answering your questions and to working with this committee to continue 
to improve mine safety.
                                 ______
                                 
    Chairman Miller. Mr. Snare?

    STATEMENT OF JONATHAN SNARE, ACTING SOLICITOR OF LABOR, 
                      DEPARTMENT OF LABOR

    Mr. Snare. Chairman Miller, Ranking Member McKeon and 
members of the committee, I am pleased to appear before you 
today to discuss how the Office of the Solicitor supports and 
assists MSHA in its efforts to protect the health and safety of 
our Nation's miners.
    The Office of the Solicitor, or SOL as we are known around 
the Department of Labor, has a long and distinguished record of 
providing high-quality legal services to the Department and its 
client agencies. SOL is relatively unique among legal offices 
in Federal agencies because it has independent litigating 
authority under a number of Federal statutes, including the 
Mine Act.
    Enforcement is our first priority and accounts for the 
majority of SOL efforts in support of MSHA. Attorneys in our 
national and regional offices prosecute and defend MSHA 
enforcement actions and whistleblower protection cases before 
the independent Federal Mine Safety and Health Review 
Commission. We secure access to mines through injunctions when 
mine operators deny entry to MSHA inspectors, and we jointly 
refer criminal cases to the Department of Justice for 
investigation and criminal prosecution.
    In recent years, mine operators have contested an average 
of 6 percent of the total number of violations issued. We 
expect that the contest rate on MSHA citations will increase 
because of the higher civil penalties now being assessed and as 
MSHA uses all of its enforcement tools as directed by Assistant 
Secretary Stickler, including the new tools authorized by the 
MINER Act.
    Whistleblower cases under the Mine Act are also a high 
priority for SOL and MSHA. To ensure that whistleblower cases 
get the immediate attention they deserve, SOL and MSHA have 
established internal procedures that require a decision to file 
within 90 days of the complaint being filed with MSHA. 
Discharge cases are handled even faster. In appropriate cases, 
MSHA and SOL work together to take the action necessary to seek 
temporary reinstatement of a miner allegedly discharged for 
engaging in protected safety activity within a month from the 
date the miner files a complaint.
    SOL also gives high priority to any case involving 
withdrawal orders issued by MSHA inspectors when they find that 
an imminent danger exists at a mine.
    In addition to our priority enforcement cases, SOL is going 
after mine operators who refuse to pay their civil penalties.
    SOL is working closely with MSHA to consider how best to 
employ the new enforcement tools to protect the safety of 
American miners, such as the MINER Act's authority to issue 
citations for flagrant violations of mandatory safety and 
health standards.
    SOL works closely with MSHA when an inspector identifies a 
violation appropriate for a flagrant designation to make sure 
all of the legal elements are satisfied.
    SOL is also supporting Assistant Secretary Stickler's 
decision to utilize the pattern of violations provision in the 
Mine Act to ensure that this policy will meet any potential 
legal challenges. Under this provision, MSHA can issue a 
withdrawal order requiring miners to exit the mine. Even though 
this provision has been in MSHA's arsenal for over 30 years, it 
has never been used.
    SOL attorneys also provide legal support for mine accident 
investigations. In major accidents SOL will assign multiple 
attorneys to the investigation to ensure that the accident team 
has our full support and that eventual enforcement actions are 
backed up by solid evidence. For example, during the Sago 
investigation, the operator refused to allow the United Mine 
Workers of America representatives to participate in the 
underground accident investigation. SOL acted quickly on behalf 
of the UMWA to ensure that they can serve as a representative 
of the miners at Sago.
    SOL also provided support for MSHA in their investigation 
of the Aracoma accident, which resulted in a criminal referral 
to the Department of Justice and the imposition of the highest 
civil penalty against a coal mine operator in history.
    SOL attorneys also provide legal support to MSHA's 
rulemaking efforts. SOL works closely with MSHA to develop the 
emergency temporary standard and the subsequent final rule on 
emergency mine evacuations.
    In addition to the rulemakings updating the civil penalty 
regulations and the rules on seals and mine rescue mandated by 
the MINER Act, SOL has supported MSHA providing legal guidance 
and advice on the review and approval of emergency response 
plans, developing policy on implementing the Family Liaison 
Program and chartering and providing legal support on the belt 
air technical study panel.
    In assisting MSHA to achieve its regulatory objectives, SOL 
is keenly focused on making sure that these requirements 
withstand legal challenges. These efforts are particularly 
important because of the likelihood that these rules will be 
challenged in Federal court.
    SOL continues to fully support MSHA and Assistant Secretary 
Stickler's clear message of strong enforcement. The Office of 
the Solicitor is also working with MSHA to ensure timely 
completion of the congressional mandates in the MINER Act. The 
attorneys in our office take their responsibility seriously and 
are proud to do their part in protecting America's miners.
    I want to thank you again, Mr. Chairman and members of the 
committee, for the opportunity to testify; and I look forward 
to answering your questions.
    Chairman Miller. Thank you.
    [The statement of Mr. Snare follows:]

    Prepared Statement of Jonathan L. Snare, Acting Solicitor, U.S. 
                          Department of Labor

    Chairman Miller, Ranking Member McKeon, and Members of the 
Committee, I am pleased to appear before you today to affirm the 
commitment of the Office of the Solicitor to support and assist the 
Mine Safety and Health Administration (MSHA) in its efforts to improve 
and protect the health and safety of our nation's miners. We believe 
that MSHA and the attorneys in the Solicitor's Office must work hand-
in-hand to carry out MSHA's enforcement and regulatory 
responsibilities.
Role of the Office of the Solicitor
    The Office of the Solicitor, or ``SOL'' as we are known in the 
Department, has a long and distinguished record of providing high 
quality legal services to the Department of Labor and its client 
agencies. SOL is relatively unique among legal offices in federal 
agencies other than the Department of Justice (DOJ) because it has 
independent litigating authority under a number of federal statutes, 
including the Mine Act of 1977. Attorneys in our headquarters division 
and regional offices handle MSHA's enforcement litigation before the 
independent Federal Mine Safety and Health Review Commission 
(Commission) Administrative Law Judges (ALJs).
    Enforcement is our first priority and accounts for the majority of 
our efforts in support of the MSHA program. We prosecute and defend 
MSHA enforcement actions and whistleblower protection cases before the 
Commission, secure access to mines through injunctions when mine 
operators deny entry to MSHA's inspectors, and jointly refer criminal 
matters like the referral of the Aracoma violations to DOJ for 
investigation and possible criminal prosecution. SOL attorneys also 
assist MSHA by providing a broad range of legal guidance and advice on 
all aspects of our client's activities.
Regular Enforcement Responsibilities
    Following the mining accidents last year and enactment of the MINER 
Act, SOL mobilized legal resources to assist MSHA in implementing the 
new legislation, while continuing to carry out regular enforcement 
responsibilities.
    Litigating contested violations. In recent years, mine operators 
have contested an average of six percent of the total number of 
violations issued, which have ranged up to 135,000. All contested 
violations are handled by SOL attorneys or trained MSHA specialists. We 
expect that the historic contest rate of six percent will increase as a 
reaction to the increased civil penalties now being assessed and the 
full use of MSHA's enforcement tools as directed by Assistant Secretary 
Stickler.
    Litigating whistleblower complaints. SOL and MSHA have continued to 
promptly address whistleblower cases--a high priority issue for DOL and 
MSHA. During Fiscal Year 2006, MSHA received 106 complaints. As of 
early May this year, MSHA has received 59 complaints. To ensure that 
whistleblower cases get the immediate attention they deserve, SOL and 
MSHA have established internal procedures that require a decision on 
whether or not to file the case with the Commission within 90 days of 
the complaint being filed with MSHA. Discharge cases are handled even 
faster. In appropriate cases, MSHA and SOL will work together to take 
the action necessary to seek temporary reinstatement of a miner 
allegedly discharged for engaging in protected safety activity within a 
month from the date the miner files a complaint.
    Seeking injunctions to enforce withdrawal orders. We also give high 
priority to any case involving withdrawal orders issued by MSHA 
inspectors because they have found an imminent danger exists at the 
mine. While such cases are relatively rare, they can be complex (for 
example, cases involving expert testimony about mine ventilation 
plans). Although under the Mine Act, violations are corrected first 
before they are litigated, any enforcement action that stops production 
is vigorously contested before the judge. For the same reason, any case 
involving a failure to abate a violation, and thus issuance of a 
withdrawal order, also gets high priority and can result in an 
injunction action in District Court.
    Going after delinquent mine operators. In addition to our priority 
enforcement cases, we are using innovative methods to go beyond the 
standard debt collection procedures in the Debt Collection Act to 
ensure that delinquent mine operators pay their civil penalties, 
including actions to enjoin operators from failing to pay civil 
penalties. Once the court issues an order, a recalcitrant operator can 
be held in contempt if he does not pay.
Support for Accident Investigations and Criminal Referrals
    When fatal accidents occur, SOL attorneys are immediately notified 
and are prepared to give on-the-scene legal support to MSHA 
investigators. In major accidents like Sago, Aracoma, and Darby, we 
assign multiple attorneys to the investigation to ensure that the 
accident team has our full support and that eventual enforcement 
actions are backed up by solid evidence.
    For example, during the Sago investigation, after two anonymous 
miners designated the United Mine Workers of America (UMWA) as a 
representative of miners at Sago, the operator refused to allow the 
UMWA representatives to participate in the underground accident 
investigation. SOL took immediate action to obtain an injunction in 
District Court and successfully defended the injunction in the Court of 
Appeals. SOL's injunction case was filed on the same day the operator 
denied the UMWA their participation rights and the Sago investigation 
proceeded without interruption with participation by the UMWA.
    The Aracoma investigation is an example of a complex investigation 
involving both a criminal referral and the highest civil penalty 
against a coal mine operator in history.
    SOL also plays a critical role in assisting MSHA to refer potential 
criminal violations of the Mine Act to DOJ whenever they are found. 
Referrals to DOJ are done by a letter signed jointly by career MSHA and 
SOL officials.
New Enforcement Developments
    SOL works closely with MSHA to consider how best to employ new 
enforcement tools to protect the safety of American miners, such as the 
MINER Act's authority to issue citations for flagrant violations of 
mandatory safety and health standards.
    SOL advised and assisted MSHA in the development of guidelines for 
determining when a violation should be designated as ``flagrant'' and 
assessed an appropriately high penalty. Citations for flagrant 
violations are particularly useful in instances where the mine operator 
has acted recklessly or habitually violated MSHA's mandatory standards 
and view penalties as the cost of doing business. SOL works closely 
with MSHA when an inspector identifies a violation appropriate for a 
flagrant designation to make sure that all the elements are satisfied. 
Flagrant violations can result in a penalty up to $220, 000. We fully 
expect these cases to be litigated and we will defend them at the 
Commission and on appeal where necessary.
    Under the MINER Act, new minimum penalties have been implemented by 
MSHA regarding accident notification and unwarrantable failures. We 
believe that mine operators will begin to contest citations as a 
reaction to these new minimum penalties.
    Assistant Secretary Stickler's decision to utilize the pattern of 
violations provision in the Mine Act will also require careful planning 
and preparation to ensure that we can meet any legal challenge. Under 
this provision, MSHA can issue a withdrawal order requiring miners to 
exit the mine. Even though this provision has been in MSHA's arsenal 
for over 30 years, it has never been used. As Assistant Secretary 
Stickler notes in his testimony, he intends to systematically review 
the enforcement and safety records at all mines and take appropriate 
action where a pattern of violations is established. Once the power of 
this tool has been exercised, we expect that mine operators will 
vigorously contest more citations to avoid the potential of withdrawal 
orders based upon a notice of a pattern of violations.
Development and Defense of New Rules
    SOL attorneys at headquarters provide legal support to MSHA's 
rulemaking efforts. The tragic events in early 2006, particularly the 
accidents at the Sago and Aracoma mines, led MSHA to conclude that a 
more integrated approach to mine emergency response and evacuation was 
necessary. This conclusion prompted the issuance of an Emergency 
Temporary Standard (ETS) to protect miners from the grave danger 
associated with mine emergencies and evacuations. In accordance with 
the Mine Act, the ETS was effective immediately upon publication in the 
Federal Register on March 9, 2006, and served as the proposed rule. 
This was the second ETS issued by this Administration out of only three 
in MSHA's nearly 30-year history. SOL worked closely with MSHA to 
develop the ETS and the subsequent final rule on Emergency Mine 
Evacuation. Our attorneys provided legal advice and counseling on all 
aspects of the rulemaking, including the ``grave danger'' finding, the 
regulatory text, and the preamble justification for the rule.
    In addition to the larger, more intensive rulemakings including the 
update of the civil penalty regulations and the rules on seals and mine 
rescue mandated by the MINER Act, SOL has supported MSHA by providing 
legal guidance and advice on the review and approval of Emergency 
Response Plans, developing policy on implementing the Family Liaison 
Program, and chartering and providing legal support to the technical 
study panel that is reviewing the use of belt air and the composition 
and fire retardant properties of belt materials.
    In assisting MSHA in achieving its objectives through the 
development and implementation of new rules, SOL is keenly focused on 
making sure that the requirements withstand legal challenges. The 
efforts are particularly important because of the likelihood that these 
rules will be challenged, as were two of MSHA's recent initiatives.
    The first challenge was filed by the National Mining Association 
(NMA) to MSHA's final rule on emergency mine evacuations.
    The second challenge was filed also by the NMA to MSHA's February 
2007 Program Information Bulletin (PIB). This PIB stems from the MINER 
Act's requirement that underground coal mine operators adopt emergency 
response plans providing for sufficient supplies of post-accident 
breathable air. On May 7, 2007, we filed a motion to dismiss this 
challenge.
    Both challenges were filed in the D.C. Circuit Court of Appeals and 
SOL will work tirelessly to defend MSHA's action in both cases. We are 
also proud of our successful defense earlier this year of MSHA's 
rulemaking that established new standards for diesel particulate matter 
(DPM) exposure in underground metal and non-metal mines. The DPM legal 
victory resolved many questions raised by the industry regarding the 
validity of MSHA's risk assessment and the appropriate surrogate for 
measuring DPM. SOL continues to assist MSHA with legal advice 
concerning implementation of the final DPM rule and is consulted, as 
necessary, on enforcement issues.
Conclusion
    SOL continues to fully support MSHA and Assistant Secretary 
Stickler's clear message of strong enforcement. The Office of the 
Solicitor is also working with MSHA to ensure timely completion of the 
Congressional mandates in the MINER Act. The attorneys in our office 
take their responsibilities seriously and are proud to do their part in 
protecting America's workers.
                                 ______
                                 
    Chairman Miller. Mr. Grayson--Dr. Grayson.

STATEMENT OF LARRY GRAYSON, CHAIRMAN, DEPARTMENT OF MINING AND 
       NUCLEAR ENGINEERING, UNIVERSITY OF MISSOURI-ROLLA

    Mr. Grayson. Good morning, Mr. Chairman and distinguished 
members of the committee. My name is Larry Grayson. I am a 
Professor of Mining and Engineering at the University of 
Missouri-Rolla and also Director of the Mine Safety Center. I 
thank you for the opportunity to address the committee today 
concerning mine safety and the effectiveness of MSHA's mine 
safety programs.
    My insights on these topics----
    Chairman Miller. Dr. Grayson, is your microphone on?
    Thank you.
    Mr. Grayson. My insights on these topics have been 
sharpened by last year's coal mine tragedies and through 
interaction with mine safety experts who served on the 
Independent Mine Safety Technology and Training Commission. The 
Commission report made recommendations on various technologies, 
strategies, procedures and training and recommended that risk-
based design and management of major hazards should be done by 
every underground coal mine in the U.S. to prevent emergencies. 
We also noted that all mine personnel must be involved in 
establishing a culture of prevention.
    MSHA has had a major role in improving miner safety. MSHA 
inspectors provide extra sets of eyes to spot problems, and 
well-trained inspectors are adept at finding more insidious-
type problems. We have owe a great debt of gratitude to our 
mine inspectors, and our day-in-and-day-out efforts are 
critical.
    MSHA's internal policies and practices change as key 
personnel change. Consistency of enforcement is sometimes 
problematic among districts, mines and even inspectors. The 
current attrition of experienced inspectors will only 
exacerbate the situation unless close attention is paid and 
proactive action is taken to minimize the effects.
    A lack of attention to details by MSHA is highlighted by 
the Jim Walters Resources No. 5 Mine disaster in 2001 when 13 
miners died. The mine received 41 percent of all citations from 
January, 1999, until the explosions occurred on September 23; 
and they were on ventilation, accumulation of combustible 
materials and rock dusting and, finally, roof control. A 
significant percentage of them were S&S. Five withdrawal orders 
were issued on ventilation and eight on combustible materials 
and rock dusting. Three ignitions occurred between August 30 
and September 19, while only one occurred in 2000. Each of 
these critical areas was related to the explosions, and there 
was significant evidence the greater MSHA scrutiny was 
justified.
    This case study emphasizes the value of risk analysis and 
implementation of actions to mitigate or eliminate a sequence 
of events from causing a disaster. No coal mine fire and 
explosions fatalities occurred from 1993 through 1999. However, 
seven explosions occurred in sealed areas during that time. The 
causes were deciphered but next steps were not taken to deal 
with the conditions under which seals were compromised and to 
examine how to prevent damage from such explosions.
    We paid the price for the lack of scrutiny in 2006. Sound 
risk analyses of these situations would have detected and 
addressed the vulnerabilities, and a plan aimed at prevention 
could have been started in 1996 following three or four of 
these events. It is MSHA's responsibility to initiate such 
scrutiny and any follow-up action.
    Many mines do not perform at an acceptable level of safety. 
It is appropriate to target high-risk mines deserving 
heightened scrutiny and concomitant enforcement without 
sacrificing adequate inspections of all mines. However, such 
targeting must be objective, risk-analysis based and designed 
to address major hazards in high-risk mines quickly.
    Investigations of incidents with four or more fatalities 
should not be managed by MSHA. An independent investigative 
board should conduct those investigations.
    MSHA should accelerate the acceptance of technology and 
equipment approved according to high international standards 
for permissibility and intrinsic safety. The liability issues 
should be removed quickly to facilitate this.
    Moving new technology into mines is not generally an easy 
task. We must ensure that the technology will work and not fail 
in times of critical need. Miners must be assured that they 
will be protected as advertised and will never again be in 
situations that expose false expectations about technology. The 
key is to identify needs early and pursue new technology 
proactively.
    In my written comments I have shared details on a research 
project that illustrates the problem of moving too quickly to 
demonstrate a new technology for monitoring coal mine dust 
exposures. It has taken over 6 years since I left NIOSH to 
reach success for the technology, but soon we will be able to 
rely on the accuracy, the robustness and utility of the 
personal dust monitor to protect miners from dust diseases.
    I admire our coal miners deeply, and I affirm that we must 
provide them a workplace that will protect their lives and 
livelihoods. Our Nation needs courageous men and women willing 
to meet the challenges of coal mining. Let us remove the life-
threatening vulnerabilities that have been identified, look 
proactively for those yet unidentified and build a risk-
analysis-based culture of prevention that will address the 
major threats.
    I will try to answer any questions you may have.
    Chairman Miller. Thank you.
    [The statement of Larry Grayson follows:]

 Prepared Statement of R. Larry Grayson, Union Pacific/Rocky Mountain 
 Energy Professor of Mining and Director, Western U.S. Mining Safety & 
                 Health Training and Translation Center

    Good morning Mr. Chairman and other distinguished members of the 
Committee. My name is Larry Grayson. I am the Union Pacific/Rocky 
Mountain Energy Professor of Mining at the University or Missouri-Rolla 
and Director of the Western U.S. Mining Safety & Health Training and 
Translation Center. Having been a coal miner myself for nine years, I 
very much appreciate the opportunity to address the Committee today 
concerning mine health and safety issues and the effectiveness of 
MSHA's mine safety and health programs.
    Based on my experience in underground coal mining, as a professor 
who focuses on mine health and safety issues, and as a former Associate 
Director of mine health and safety research in NIOSH, I am here 
hopefully to help you evaluate the effectiveness of MSHA's mine safety 
and health programs. My insights on this topic have been sharpened 
dramatically in the last year since the mine tragedies at the Sago, 
Aracoma/Alma, and Darby mines compromised a dramatic legacy of 
improvements in mine safety. These insights were particularly honed 
through my interaction with mine safety and emergency response experts 
who served on the independent Mine Safety Technology & Training 
Commission (hereafter referred to as the Commission), which was boldly 
established by the National Mining Association.
    During the course of the study, it became clear to the Commission 
that the mine safety record regarding underground coal mine fatalities 
resulting from fires and explosions dramatically changed from the 
period 1993-1999, when no such fatalities occurred, to the period 2000-
2006, when the awful toll increased to 37. This latter number comprises 
40% of such fatalities over the past 23 years, and returned the 
incident rate to over 6 per year, nearly the same rate during the 
period 1984-1992. No single factor can account for the dramatic rise, 
but rather myriad parameters led to it.
    The Commission's initial focus was on making recommendations to 
increase the chances of miners to survive mine emergencies. 
Accordingly, in the report \1\ recommendations were made relative to 
communications technology, emergency response and mine rescue 
procedures, training for preparedness, and escape and protection 
strategies; however, the Commission noted the need for a fundamental 
change in the way mines address their major hazards. In this respect 
the Commission recommended that risk-based design and management of 
major hazards are necessary processes for underground coal mines to 
effectively prevent mine emergency situations. History and experience 
clearly indicate, in numerous situations and conditions encountered, 
that often minimum compliance with regulations is not sufficient to 
deal with major hazards such as fires and explosions. The Commission 
noted further that the level of risk from such hazards is mine 
specific, and interventions to effectively mitigate or eliminate the 
threats of such major hazards must be determined by a thorough risk 
analysis leading to a management plan implementing the interventions. 
This process should be done by every underground coal mine in the U.S., 
because of the significant threats, and management must involve all 
workers in preventing accidents and injuries. Establishing a culture of 
prevention is necessary for us to achieve the goal of zero fatalities.
---------------------------------------------------------------------------
    \1\ The Commission report can be found at: http://
www.coalminingsafety.org
---------------------------------------------------------------------------
    I will now focus on MSHA and give my assessment of the agency's 
effectiveness in improving mine safety and health in the U.S. First 
without doubt the agency has played a major role over the past 37 years 
in improving the safety of miners. Statistics bear this out. MSHA 
inspectors provide 'extra sets of eyes' to help spot problems in a 
mine, and I have personally regarded their efforts as very helpful. 
Some underground coal mines can be very expansive spatially, comprised 
of extensive infrastructure spread throughout miles and miles of 
tunnels, both of which can deteriorate over time. Good examinations by 
mine examiners can help spot developing problems, especially the more 
visible ones, but many other problems develop much more insidiously, 
and well trained inspectors are adept at finding such insidious 
problems earlier. We owe a great debt of gratitude to our mine 
inspectorate, and their day-in and day-out efforts are critical.
    The focus of MSHA's internal policies and practices does change 
over time, particularly as key personnel change. Consistency of 
enforcement, including the assignment of the S&S designation, is 
sometimes problematic among districts, mines, and inspectors. The 
current attrition and loss of experienced inspectors will only 
exacerbate this situation, unless close attention is given and 
proactive action is taken to minimize the effects. The scrutiny of mine 
inspectors is critical to ensure the overall safety of mine operations, 
just as is the scrutiny of mine examiners at their mines. Lack of 
attention to details can spell disaster, as we have seen from last 
year's tragedies.
    An example of this lack of attention to detail by mine managers is 
manifested by the situation that developed at Jim Walter Resources Mine 
No. 5 in 2001, when 13 miners died. An analysis of violations and 
reportable accidents for that mine shows that a number of leading 
indicators of potential disaster did exist. Specifically, the mine had 
only one reportable ignition in 2000. The first ignition at the mine in 
2001 occurred on May 17th, and then a second occurred on August 30. 
This was not particularly noteworthy in an experienced miners' mind. 
However, two additional ignitions occurred in September, just prior to 
the explosions on September 23rd. The latter two ignitions in quick 
succession following the one on August 30th should have rung a clarion 
call for immediate scrutiny of potential for danger.
    To carry the example farther regarding lack of appropriate 
attention to details by MSHA, the Jim Walter Resources No. 5 Mine 
received 1,489 citations from January 1999 until the explosions 
occurred in 2001. Of these, citations for ventilation (329), 
accumulation of combustible materials and rock dusting (288), and roof 
control (112) accounted for 49% of the total. The percent of them that 
were designated as S&S were 14.6%, 19.8%, and 64.3%, respectively. Over 
the same period, five withdrawal orders were issued concerning 
ventilation, eight relative to combustible materials and rock dusting, 
and one regarding roof control. Importantly, each of these critical 
areas was related to the explosions that occurred on September 23rd and 
the spatial extent of destruction.
    There was significant evidence, in my opinion, that greater 
scrutiny of the safety performance at the Jim Walter Resources No. 5 
Mine was justified. The sequence of events involving unsafe conditions 
and unsafe acts could have been interrupted, thereby preventing the 
fatalities. Unsafe conditions included the bad roof area, the occluded 
methane, the local explosion, disrupted ventilation, and accumulation 
of methane from the face areas toward the mouth of the section. Unsafe 
acts included leaving the charger near the bad-roof area, allowing the 
miners to stay in the mine after the first explosion, not removing the 
power from the haulage block system, and allowing the miners to return 
to the area of the first explosion. A simple action to move the charger 
away from a high-risk, bad-roof area could have interrupted the 
sequence of events and prevented the explosions. This case study shows 
the distinct value of analyzing high-risk situations and then taking 
action to mitigate or eliminate a potential sequence of activities from 
reaching fruition.
    I also believe that there were many warnings of potential disaster 
involving sealed, abandoned areas of mines. As I noted earlier, there 
were no fatalities because of fires and explosions from 1993 through 
1999, and we all thought that the trend would continue. However, during 
this period there were seven incidents of explosions in sealed, 
abandoned areas in mines. We were fortunate that the incidents did not 
result in fatalities, but simply ignoring what was happening was, in 
retrospect, not wise. I know work was done to decipher the causes of 
these explosions, and we understood the reasons, but we didn't go the 
next step to deal with the conditions under which seals were 
compromised and to prevent damage from such explosions. Very 
tragically, we paid the price for the lack of scrutiny in 2006. I am 
convinced that a systematic approach to risk analysis of these 
situations would have detected the vulnerabilities, and a game plan 
toward prevention could have been started in 1996 after three or four 
of these events occurred. In my opinion, it is the responsibility of 
MSHA to initiate such scrutiny and follow-up action.
    Many mines do not perform at an acceptable level of safety. It is 
appropriate, in my thinking, to target high-risk mines deserving 
heightened scrutiny and concomitant enforcement without sacrificing 
adequate inspection of all mines. However, such targeting must be 
objective and based on a sound risk-analysis process, fair to all types 
of operations, and designed to address major hazards quickly. I believe 
MSHA is headed in this direction, and I urge the agency to do it 
soundly and fairly. The U.S. mining industry should be the global 
leader in mine safety and health.
    As we have become painfully aware from the tragedies in 2006, it is 
critical that a technology scan be done periodically to continuous seek 
improvement of the level of protection of miners to a higher level, 
thereby increasing their odds of survival dramatically in an emergency. 
It is imperative that this be done proactively, and it is recommended 
that an independent group of safety experts, including some from non-
mining disciplines, should comprise a technology committee charged to 
do this. The agency to which the committee reports does not matter, as 
long as the committee functions independently.
    Investigations of incidents with four or more fatalities should not 
be managed by MSHA, in my opinion. There will be an innate conflict of 
interest in some cases, and in other cases MSHA needs the separation 
from unpopular conclusions in order to preserve the perception of 
objectivity. It is in the agency's best interest to have an 
investigative board established, so that investigation can be done 
independent of the agency's influence.
    The time has arrived for MSHA to accelerate the approval and 
certification of technology and equipment approved according to high 
international standards for permissibility and intrinsic safety. The 
agency knows which standards meet or exceed their own standards, and 
liability issues should be removed quickly to facilitate this.
    As this point I am obligated to note that moving identified 
technology toward implementation in mines is not generally an easy 
task. We cannot allow the adoption of new technology without ensuring 
that it will work in the underground coal mine environment and not fail 
in times of critical need. Miners must be assured that they will be 
protected 'as advertised' and will never again be in situations that 
reveal false expectations about technology. The key is to identify 
needs early and pursue new technology proactively. From my own 
experience, I can share a technology research project that will 
illustrate the problem of trying to move too quickly to implement a new 
technology.
    When I first joined NIOSH in 1997, an ongoing multi-year project 
was the development of a machine-mounted, continuous, respirable dust 
monitor (MMCRDM). The targeted technology for eventual implementation 
was the tapered-element oscillating microbalance (TEOM). The technology 
was used in other industries to monitor dust or particulate matter 
accurately, and it was selected as the best technology for innovative 
application in measuring respirable coal mine dust levels continuously. 
After about 5 years of research, the developer of the MMCRDM was able 
to demonstrate its accuracy in a housing that was appropriate for 
application in an underground coal mine. The next step was to test the 
new technology for accuracy against the dust sampling device commonly 
used for compliance purposes by MSHA and mine operators. Eventually and 
reasonably quickly, the accuracy was confirmed. The next step was to 
test the ability of the new technology to withstand the rigors of the 
underground mining environment. Lab testing was the first step in doing 
this, according to a partnership-based research protocol, where the 
machine would be subjected to vibration and water droplet levels 
expected in coal mines. In this stage, any problems detected would 
result in modification of the machine to improve its robustness. 
Following success in this stage, in-mine testing of a prototype or a 
few prototypes would be done next, to validate the robustness in the 
mine environment. Unfortunately the machine was moved too quickly to 
the in-mine testing stage, bypassing the planned lab testing and early 
field testing, and multiple units failed miserably upon implementation 
for demonstration purposes. The technology now forms the basis for the 
personal dust monitor (PDM), which is near final approval following 
successful field research. It has taken over six years to reach this 
stage after I left NIOSH, but we will be able to rely on the accuracy, 
robustness, and utility of the PDM to protect miners from dust diseases 
of the lungs.
    I would be remiss if I did not speak on MSHA's behalf concerning 
the impediments the agency faces in moving technology, procedures, 
policies, and rulemaking along more quickly. The U.S. government was 
established originally with an intricate system of checks and balances 
placed on its activities, involving each branch of government. In 
rulemaking, the process requires input from stakeholders. The 
stakeholders also have access to legal challenges when strong 
disagreements on direction occur. This intricate, balanced system 
ensures that prudent laws, regulations, and decisions are achieved in 
the end, while involving those most impacted by the proposed measures. 
Implementation of many provisions of the MINER Act must also undergo 
this process of public input and interaction with MSHA to move the laws 
into rules. Although it is very frustrating that the desired 
protections are not yet in place, and danger from fires and explosions 
still exist for underground coal miners, MSHA has been following the 
required process for most provisions. Why certain provisions of the 
MINER Act were not pursued in the past or not done more quickly is 
problematic, for example, concerning development of seal construction 
criteria in light of past explosions in abandoned areas and evaluation 
of the protections afforded by rescue chambers.
    Finally, I admire our coal miners more than I can say, and I affirm 
that we must provide them a workplace, in often threatening conditions, 
that will protect their lives and livelihoods while also assuring a 
retirement free from disability. Our nation has a growing dependence on 
a tremendous natural resource, which will provide stability in our 
continued economic development, and we need courageous young men and 
women to step up to meet the challenges of coal mining. Let us remove 
the life-threatening vulnerabilities that have been identified in 2006, 
look proactively for those yet unidentified, and build a risk analysis-
based culture of prevention that will not leave any stone unturned to 
address the major threats.
    I appreciate the opportunity to address you, and I will try to 
answer any questions you may have.
                                 ______
                                 
    Chairman Miller. Mr. McAteer.

 STATEMENT OF J. DAVITT McATEER, VICE PRESIDENT FOR SPONSORED 
              PROGRAMS, WHEELING-JESUIT UNIVERSITY

    Mr. McAteer. Chairman Miller, Ranking Member McKeon and 
members of the committee, my name is Davitt McAteer; and I 
thank you for this opportunity to present my views about MSHA.
    From 1994 to 2000, I served as the agency's Assistant 
Secretary and also served for a time as the Acting Solicitor of 
Labor. I have been involved in mine safety and health issues 
since 1968, following the tragic Farmington, West Virginia, 
mine disaster.
    Following the disaster at Sago and Aracoma Alma, Governor 
Joe Manchin of West Virginia asked me to lead an investigative 
panel into the causes of those disasters. In July and November 
of last year I produced reports into those disasters, and I 
submitted a copy of those reports for the record today.
    Following the disasters of 2006, the families of the Sago, 
Aracoma Alma and Kentucky Darby victims, this committee and the 
American public asked the question, why hasn't the Federal 
Government acted to bring about changes in health and safety 
protections afforded miners? And why aren't new communications 
systems, seals, rescue chambers and improved SCSRs been placed 
in the mines?
    While the answer is complex, the bottom line is this, 
miners still lack a wireless, durable phone system; 14,000 
alternative seals have not been strengthened; and rescue 
chambers have still not been installed.
    Those looking beyond the 2006 tragedies are also mystified 
that MSHA's regulations to protect miners from black lung is 
nearly 30 years old, its asbestos standard is 20 times less 
protected than OSHA's, and its rules on mine rescue teams are 
seriously outdated. The list of unfulfilled promises to miners 
goes on and on.
    During the past 6 years, this administration has terminated 
multiple regulatory undertakings, including important rules on 
SCSR's mine rescue teams and black lung prevention.
    There is no doubt that the administration's regulatory 
philosophy plays an important role in whether regulations are 
issued and the type of regulations pursued, but that is not the 
only factor it plays. If congressional oversight focuses 
exclusively on politics, it will miss a tremendous opportunity 
to address a serious problem that exists beyond the resident of 
the White House.
    Before being appointed to MSHA in 1994, I was one of the 
agency's harshest critics. When I started the job, I had high 
expectations in the form of new protective standards; and 
during my tenure we finalized a dozen significant regulations. 
Some of these had been initiated by my predecessor and others 
were commenced and completed during my term.
    Despite my determination to issue rules and the commitment 
of MSHA's talented engineers and scientists, I am only modestly 
satisfied with our regulatory accomplishments. In my case, the 
faults did not fall with the agency's lack of commitment to 
miner safety or unwillingness to regulate.
    MSHA is a small agency within a large Federal bureaucracy. 
Its mission is only one of many within the Department of Labor, 
and it does not operate in a vacuum. Promulgating workplace 
safety standards is a process fraught with obstacles. It was a 
problem when I was at MSHA, and it will be a problem for the 
next administration.
    Some of the roadblocks were of the administration's own 
making and some were created by my fellow lawyers exploiting 
the regulatory system. When a rule is controversial, and most 
are, it will take 4 to 6 years to complete. In the worst of 
cases, the procedural maneuverings obstruct the process; and 
those rules are never completed. This unfinished business of 
protecting miners is the result of a broken rule making system.
    Interest groups who have a stake in avoiding or postponing 
new workplace safety rules have the financial resources to bog 
the system down. There are numerous examples of this in MSHA's 
history. But one of the most troubling to me is the mining 
industry's efforts to obstruct MSHA's plan to correct the 
manner in which miners' exposure to coal dust is measured.
    One of my highest priorities was attempting to transform 
MSHA's regulations to eliminate black lung disease once and for 
all. Our efforts were comprehensive, and one small part 
included dismantling the dust monitoring scheme put into place 
by the U.S. Bureau of Mines in 1971. Under this outdated 
policy, miners exposed to coal dust are calculated based upon 
an average of multiple samples. You may have two or three dusty 
jobs in a coal mine, and the agency is required to average 
those miners' exposure with samples collected from less dusty 
jobs. More times than not, the average will be less than the 
enforceable limit, meaning the mine operator does not receive 
an MSHA citation, and the inspector cannot compel the mine 
operator to correct the problem.
    Beginning in 1991, we attempted to change this policy, but 
an unfavorable decision by the MSHA Review Commission forced us 
to engage in a formal rulemaking. We sought to officially 
revoke the sampling average policy and replace it with the 
safeguard of a single-shift dust sample. After a 4-year 
rulemaking process with multiple public hearings, we issued a 
joint rulemaking with NIOSH. The mining industry challenged our 
rule, arguing that we failed to conduct the proper rulemaking. 
Their challenge was upheld by the Court of Appeals. We were 
forced to begin another rulemaking to revoke this harmful 
policy. Regrettably, the rule was not finished before I left; 
and, today, the 1971 averaging scheme remains in effect.
    I described in my written testimony three hazardous 
situations faced by miners in which practical solutions exist 
today. Those are the presence or absence of proximity 
detectors, hardened cabs on bulldozers, and backup cameras on 
large haulage trucks. These are circumstances that kill miners 
day in and day out over the years. We have solutions, and 
because of the nature of the regulatory system, we can't get 
those solutions to be put in place.
    I submit that the current regulatory system is broken, and 
we need to find a new approach to protecting miners' health and 
safety. I would suggest the four items for your consideration:
    First, we need a full public analysis of accident, 
injuries, illnesses and near misses, if you would, a national 
report to Congress on health and safety related to best 
practice. That is, what has been done right within an industry, 
as well as deficiencies in protecting miners.
    These best practices could then become a norm to help 
establish the ``duty of care'' against which an individual 
company could be judged. Even absent a specific regulation, 
mine operators would be on notice that protections exist and 
are available; and they have a duty to act whether or not a 
specific regulation is in place.
    Second, the establishment of a duty of care responsibility 
for each mine operator. The duty of care would require a 
thorough process of hazard identification, risk assessment and 
risk control and would be coupled with the regulatory system, 
not replacement for the regulatory system. This model has been 
successfully adopted in several countries, including Australia 
and Canada.
    Third, incorporating mine safety and health into the 
production of mining equipment, production equipment. This is 
akin to requiring for the installation of safety equipment on 
automobiles as part of the automobile manufacturers' 
responsibility and not the responsibility of the automobile 
driver.
    For example, longwall mining machines cost in excess of $50 
million and are unparalleled in their ability to mine millions 
of tons of coal. Yet few, if any, safety and health features 
are designed into this equipment.
    Chairman Miller. Mr. McAteer, I am going to ask you if you 
can wrap it up.
    Mr. McAteer. I am sorry. I will wrap it up.
    Fourth is permitting a quasi regulatory requirement agreed 
upon by all parties as part of the duty of care; and, finally, 
for Congress to follow the model established in the landmark 
1969 Coal Act to instruct the industry directly on what is 
expected of them.
    With these changes I believe we could improve the 
protections for miners and also avoid the Sago, Aracoma and 
Kentucky Darby type accidents. Thank you, sir.
    [The statement of Mr. McAteer follows:]

  Prepared Statement of J. Davitt McAteer, Vice President of Wheeling 
                           Jesuit University

    Good Morning. My name is Davitt McAteer and I wish to thank you for 
this opportunity to appear before you today. I am the Vice President of 
Wheeling Jesuit University where I am responsible for research efforts 
at the National Technology Transfer Center (NTTC) and Center for 
Educational Technologies (CET).
    In addition, during the past year and one-half, I conducted 
investigations into the Sago and Aracoma/Alma No. 1 Mine disasters in 
West Virginia at the request of West Virginia Governor, Joe Manchin, 
III, and in July and November of 2006, issued reports on those 
disasters, a copy of each I submit for the record.
    From 1994 to 2000, I served as Assistant Secretary of the United 
States Department of Labor for the Mine Safety and Health 
Administration (MSHA) and also served as Acting Solicitor for the 
United States Department of Labor from February, 1996 to December, 
1997.
    I have been involved in mine safety and health issues since 1968 
when, following the Farmington Mine disaster in November of 1968, I 
conducted a study and produced a report and book entitled Coal Mine 
Safety and Health--A Case Study of West Virginia.
    I come here today to attempt to address questions concerning 
efforts to improve health and safety in United States for mine workers, 
but also to propose possible solutions to long standing problems facing 
the Mine Health and Safety Administration and other regulatory 
agencies.
    Following the disasters of early 2006--the families of the Sago, 
Aracoma/Alma and Kentucky, Darby victims, this committee and the 
American public asked the question of ``Why hasn't the Federal 
Government acted to bring about changes in the health and safety 
protections afforded miners, specifically why aren't new Communication 
Systems, Seals, Rescue Chambers and improved SCSRs been placed in the 
mines?''
    While the answer is complex, the bottom line is that miners still 
lack wireless and/or protected phone systems, the 14,000 alternative 
seals have not been strengthened, rescue chambers are not yet installed 
in United States mines, increased numbers of improved SCSRs are not yet 
available to miners and the mine rescue system, although improved, is 
not equipped as it should be for the 21st Century. We should, however, 
note that much has been accomplished in terms of improved training of 
miners on SCSRs, testing of new communication systems, approval by West 
Virginia of rescue chambers, monitoring of existing seals, a moratorium 
on alternative seal construction, and a proposal to strengthen the 
seals which MSHA's forthcoming Emergency Temporary Standard will 
address.
    Still, those looking beyond the recent tragedies are mystified that 
MSHA's regulations to protect miners from black lung and silicosis are 
nearly 30 years old, its exposure limit for asbestos is 20 times less 
protective than OSHA's standard, and its rules on mine rescue teams are 
seriously outdated. The list of unfulfilled promises to miners goes on 
and on.
    There are reasons to suggest that in the past, MSHA officials have 
been unwilling to issue much needed rules, or did not assemble the 
necessary resources to get the job done in a timely way. Without a 
doubt, during the past six years the Administration has terminated and 
cancelled multiple regulatory undertakings (See Attachment 11), 
however, since Sago, Aracoma/Alma, and Kentucky Darby as well as since 
the passage of the Miner Act and as a result of this Congress's 
oversight, the agency has stepped up its efforts to promulgate 
regulations, especially those related to disaster relief.
    There is no doubt that an Administration's regulatory philosophy 
plays an important role in whether regulations are issued and in the 
type of regulations pursued. But, that is not the only factor in play; 
if congressional oversight focuses exclusively on politics, it will 
miss a tremendous opportunity to address a serious problem that extends 
beyond the resident of the White House.
    As the Assistant Secretary for Mine Safety and Health from 1994 
until the end of 2000, I devoted significant agency resources into the 
development of new MSHA rules to protect miners. I came to the agency 
with a history of being one of its toughest critics, and I had high 
expectations in the form of new protective health and safety standards.
    From the time I was confirmed by the U.S. Senate (February 1994) 
until January 19, 2001, there were a dozen or so final rules issued by 
MSHA.2 My predecessor initiated some of these projects (e.g., Hazard 
Communication; Safety Standards for Explosives at Metal/Non-Metal 
Mines; First--Aid at Metal/Non-Metal Mines) and we completed them while 
I was Assistant Secretary. Others were new rules commenced and 
finalized during my tenure (e.g. Preventing Hearing Loss/Noise 
Standard; Safety Standards for Underground Coal Mine Ventilation; 
Training for Stone, Sand and Gravel Miners/Part 46). A team of talented 
MSHA engineers, industrial hygienists and analysts, would be pulled 
together to work on each new rule, and typically this assignment was in 
addition to their regular duties in an MSHA field office. These skilled 
and determined individuals worked diligently to develop sound, 
evidence-based and cost-effective regulations designed to prevent 
miners from suffering injuries, illnesses and death. Despite my 
determination to issue protective rules and the devotion of MSHA's 
staff, I am only modestly satisfied with the number of regulatory 
improvements made during my tenure. In our case, the fault does not lie 
with the Agency's lack of commitment to miners' health and safety, or 
an unwillingness to regulate.
    MSHA is a small agency within a large federal bureaucracy. MSHA's 
mission is only one of many within the Department of Labor, and the 
highest priorities of MSHA's Assistant Secretary may just be one of 
many for the Secretary of Labor. MSHA is not an independent agency, and 
it does not operate in a vacuum. But let us put this regulatory 
promulgation problem into context--this is not just a problem for this 
Administration. It was a problem when I was Acting Solicitor and 
Assistant Secretary for MSHA and it will be a problem for next 
Administrations to come.
    During my tenure, we found similar obstacles and road blocks, some 
of which were the Administration's own making, some created by the 
Federal Courts and some created by my fellow lawyers exploiting the 
regulatory system and Federal Courts.
    In the best of circumstances, promulgating a new health or safety 
standard takes 2-3 years to complete. However, when the rule was 
substantial and/or controversial, it can take 4, 6, 8 or more years 
from start to finish. In the worst of cases, the procedural maneuvering 
completely obstructs the process, and those rules are never completed. 
This ``unfinished business'' of protecting workers' health and safety 
is the result of a broken rulemaking system. Equally troubling was this 
Administration's decision mentioned above to drop about a dozen 
regulatory projects that were in the queue, including important rules 
on SCSRs, mine rescue teams, and black lung prevention.
    As currently structured, MSHA's system (like OSHA's) is unable to 
address, in a timely manner, long-standing hazards faced by workers let 
alone new emerging risks. The public policy considerations embodied in 
the Federal Administrative Procedure Act, Presidential Executive Order 
12866, the Paperwork Reduction Act of 1995, the Information Quality Act 
of 2001, and their amendments and implementation documents3 as well as 
other requirements have suffocated the public health and precautionary 
values embodied in the statutes governing, among others, MSHA4 and 
OSHA5. The harsh reality is that those interest groups, which have a 
stake in avoiding or postponing new workplace rules, have the financial 
resources and political clout to impede and/or bog down the current 
rulemaking system. There are numerous examples of this in MSHA's 
history, but one of the most troubling to me is the mining industry's 
efforts to obstruct MSHA's efforts to correct a deadly flaw in the 
manner in which miners' exposure to coal mine dust is measured.
    When I was Assistant Secretary, one of my highest priorities was 
transforming MSHA's regulations on coal mine dust to eliminate black 
lung disease once and for all for U.S. coal miners. Our efforts were 
wide-ranging and comprehensive and some required changes in long-
standing regulations. One of the keys to the effort was dismantling a 
dust monitoring scheme put in place by the U.S. Bureau of Mines (BOM) 
in 1971, which mandated that miners' exposure to coal mine dust would 
be calculated as the average of multiple samples. In order for an MSHA 
inspector to issue a citation for excessive coal mine dust, the average 
of the samples has to exceed the exposure limit, plus an error factor.
    As is well known, the average of multiple data points does not 
accurately reflect the value of any one of the individual data points. 
Likewise, when you have two or three dusty jobs in a coal mine (e.g., 
roof bolters, continuous miner operator) and you average these workers' 
dust exposure samples with samples collected from less-dusty jobs, more 
times than not, the average will be less than the permissible exposure 
limit. The result: the mine operator does not receive an MSHA citation, 
and MSHA cannot compel the mine operator to correct the respirable dust 
problem, leaving miners, in particular a subgroup of miners, exposed to 
elevated levels of deadly coal dust.
    Beginning in 1991, MSHA attempted to change its enforcement policy 
to eliminate the averaging of dust samples. After an unfavorable 
decision by the Federal Mine Safety and Health Review Commission, MSHA 
and NIOSH jointly engaged in a notice-and-comment rulemaking to revoke 
officially the BOM's 1971 ``sample averaging'' policy, and provide 
miners the health protection afforded by a single-shift dust sample.6,7 
In addition, an Advisory Committee of industry, labor, public health 
scientists and academics was constituted in November 1995 and issued 
its report and recommendations in November 1996. After a lengthy public 
comment period, which was reopened several times, and multiple public 
hearings, a rule revoking the ``averaging'' policy was published in 
early February 1998,8 after a 4-year public process. The mining 
industry challenged the rule,9 arguing on procedural grounds that MSHA 
failed to conduct a proper rulemaking. In September 1998 the U.S. Court 
of Appeals for the 11th Circuit ruled in favor of the mining industry, 
and we were forced to begin the rulemaking process again. To this day, 
the rule remains as it was since 1971, in effect exposing a known set 
of miners to dust levels which we know will result in black lung 
disease.
    As part of this comprehensive effort, we pursued with NIOSH, the 
development and testing of a continuous dust monitoring system. That 
effort allowed the introduction in several coal mines the initial, 
first-generation machine-mounted continuous dust monitor, which proved 
the concept that real-time continuous dust sampling was possible. These 
in-mine tests led to the development of the second and now third 
generations of continuous dust monitors, which are person-wearable 
units. Tragically, this equipment has not yet been mandated or 
implemented into U.S. coal mines. While black lung disease has been 
virtually eliminated in Australia, a recent NIOSH analysis points to 
the ongoing incidence of new cases of coal workers pneumoconiosis among 
U.S. miners.10 We have the knowledge of how to eliminate it. We have 
the means to eliminate it. What is lacking is the will at both the 
governmental and industry levels. It is a shame on the mining industry 
and on the United States' mining community that we have not eliminated 
black lung disease.
    MSHA, like its sister-agency OSHA, finds itself hidebound by a 
multi-layered system which slows the process, and thus, the 
implementation of much-needed worker protections. Agency staff and 
senior officials in MSHA, and indeed miners and mine operators 
themselves, know of longstanding hazards faced today by mine workers 
that are causing injuries, illnesses and death for which remedies 
exist. In fact many of the hazards encountered by miners today, are not 
new, some are the same hazards faced by their fathers and even 
grandfathers. More troubling, is that for many, if not all of these 
dangers, a remedy exists to reduce or eliminate miners' risk of harm, 
but is not being put in place.
    The mechanical and procedural requirements relating to dates of 
publication, public comments, record opening, request for additional 
time for public comment, etc. add months to the process. This is not to 
suggest that each of the notice and public hearing requirements are 
lacking in merit or not worthwhile; the facts are that the system has 
become overloaded. The search for alternative ways to eliminate these 
risks and dangers must be expanded.
    Two alternatives contained in the Mine Act ``negotiated 
regulations'' and ``advisory committees'' have generally failed. 
Negotiated regulations have proven to be, almost without exception, an 
ineffective path to successful rulemaking in large part because they 
can be stopped at any step of the process by any involved party. 
Objections sometimes come after years of effort, meaning one interest 
group, either industry or labor, can torpedo the whole effort.
    The Act also contains an ``advisory'' committee option which 
because of the two tiered requirements, first requiring equal 
membership of labor and industry, plus a requirement that a majority of 
committee members be unrelated economically to the mining industry, has 
proved not only difficult to fulfill but has resulted in a near 
impossibility to create a committee which can successfully report out 
an agreed upon set of recommendations. Even when a committee can agree 
on recommendations, MSHA must still then proceed with the normal 
rulemaking process.
    But let us turn to examples of known safety and health risks which 
we can virtually all agree are causing death, injury and illness for 
miners. These are problems for which solutions or answers exist, but 
which, because of the cumbersome regulatory process or interest group 
opposition slows the promulgation of regulatory remedies. We rarely 
create a new way to kill miners, and in the following three examples, 
solutions have existed for years but the Federal government has been 
unable to promulgate protective new rules:
    1. Proximity detectors can automatically turn off remote-controlled 
mining equipment when it gets too close to miners. The problem of 
putting mining equipment operators under unstable roof was solved by 
allowing them to operate the equipment remotely. Currently a number of 
equipment operators are killed every year when they are crushed by 
moving equipment underground. Yet despite the fact that devices exist 
which prevent these deaths, they are not in wide spread use in mines 
and no regulations have been promulgated requiring their use.
    2. Hardened cabs on bulldozers that are used on surge piles can 
save lives. When a bulldozer falls into a void on a surge pile, the 
bulldozer and the miner operating the dozer are covered over with the 
coal or ore. It can take hours to remove the equipment and operator 
from the surge pile, but if the windows on the dozer don't break and 
the miner has enough oxygen inside the cab, he can survive. Every year, 
there are documented lives saved using this technology, but it is not 
required by regulation. A number of companies have installed this 
equipment but a significant portion of the industry has not retrofitted 
their cab windshields to strengthen them.
    3. Back-up cameras on trucks and haulage vehicles at large surface 
mines can save lives of miners who otherwise are at risk of being 
crushed when the big trucks back up over miners or smaller trucks. 
These large haulage trucks cost a fortune, but inexpensive camera 
systems which are currently available, are not required by MSHA. In the 
late 90s, I initiated a voluntary program to encourage operators to 
install them, and sadly that program has languished in the last several 
years.
    Because of the recent mining tragedies, disaster-related 
regulations have been placed front and center and correctly so. 
However, this emphasis insures that the hazards described in the three 
examples above will not be addressed and more miners will needlessly 
perish from well-recognized hazards. I propose the following shift in 
regulatory philosophy with respect to mine safety and health problems 
and solutions.
    The critical point is that the regulatory process is broken and 
cannot be relied on to quickly address real needs for improvements and 
fast moving changes in the modern workplace. Congress and the 
regulatory agencies themselves, under the current regulatory framework, 
cannot efficiently legislate or request solutions to every one of these 
workplace hazards--issue by issue. We need to find a new approach to 
protecting miners' health and safety. Below I have outlined four steps 
to achieve this new approach.
    First, we need a full public analysis of accident, injuries, 
illnesses, and near misses, and possible solutions. If you will, a 
National Report to Congress on Health & Safety, and Best Practices. The 
Report will annually assess how MSHA, as well as other agencies, are 
doing in achieving their core mission of saving lives and preventing 
injuries and illnesses, such as in the case of MSHA and OSHA, or 
improving environmental quality, in the case of the EPA. This Report 
would also describe Best Practices in a particular industry, that is, 
what is being done right, as well as deficiencies.
    These best practices then would become the norm to help establish 
the ``Duty of Care'' against which an individual company's efforts 
would be judged. Even absent a specific regulatory requirement, mine 
operators would be ``on notice'' that protections exist and are 
available, and they have a duty to act, whether or not a specific 
regulation is in place.
    The federal agencies themselves are in the best position to 
assemble and analyze the data and should be held accountable for what 
they do with it. It may be that some things are appropriate for a 
general regulation and this Report would be invaluable in setting 
priorities. Congressional oversight and public scrutiny is the key. 
Thus, some issues can be addressed through existing mechanisms like our 
powerful private insurance system and traditional methods of corporate 
accountability. And the power of Congress and the press should not be 
overlooked as another means to effect change, but a yardstick is 
necessary to measure performance and the annual Report would give us a 
yardstick based on factual data and the analysis of trends.
    Secondly, the current regulatory scheme should be blended with the 
establishment of a Duty of Care responsibility on the part of each 
operator. Broadly stated, the duty of care requires a risk management 
approach on the part of each mine manager, including a thorough process 
of hazard identification, risk assessment and risk control.
    This duty of care approach should be coupled with regulations, not 
a replacement of the regulatory scheme. This model has been 
successfully adopted in several countries including Australia and 
Canada.
    At my request and as part of the Sago mine disaster investigation, 
a memorandum entitled ``Thinking Out-Side-The Box: The Proposed Blended 
Duty of Care and Safety Case Model for Regulation in the Coal mining 
Industry of Australia'' was prepared by Suzanne M. Weise, Esquire and 
Professor Patrick C. McGinley (West Virginia University College of 
Law), which I submit for the record (See Attachment 2).
    This Memorandum describes the generally applicable ``duty of care'' 
standard of Australian law and a proposal to amend to the existing coal 
mine safety regulatory regime a ``safety case'' approach found to be 
successful when applied occupational health and safety regulation of 
other industries in Australia. Relevant to the post-Sago search for 
ways to improve mine safety is the active involvement of mine managers 
in developing mine-site specific approaches to reduction of health and 
safety hazards.
    The Memorandum concludes that in light of the criticism of post-
Sago regulatory and administrative proposals addressing perceived 
shortcomings of the existing statutory and regulatory regime, critics 
and regulatory change proponents should welcome the opportunity to 
review and critique out-side-the-box approaches. The duty of care/
safety case regime has been successfully utilized in Australia to 
address workplace health and safety issues relating to hazardous waste 
and off-shore petroleum industries. Australian authorities are 
examining the safety case approach to determine its potential 
applicability to that nation's coal mines. The safety case approach is 
one way that site-specific considerations may be given appropriate 
attention as critics of post-Sago remedial proposals demand. At the 
very least, those critics and other interested parties should begin to 
explore new approaches to protect the health and safety of the nation's 
miners.
    As the Memorandum indicates, a duty of care model might have 
limited application in the United States, especially given the 
differences in production and number of mines in operation (i.e., 
Australia with 100,000,000 tons of coal produced annually v. the United 
States, with 1.2 billion tons produced) but some model which mandates 
operators to actually engage in the identification of risks and the 
elimination of them, as part of their ongoing mining responsibilities. 
These risk assessment requirements would be in addition to the safety 
and health regulations required of industry by federal and state 
agencies. The establishment of legal responsibility for the failure to 
comply with the ``duty of care'' might help resolve the ``thorny 
regulatory issues which tend to be frozen by ossified conventional 
analysis.''11
    The outcome at Sago might have been significantly different if the 
operator viewed it as his responsibility for managing what was going on 
behind the seals, rather than the ``seal it and forget it'' approach 
which ICG management followed.
    Moreover a third solution is to shift responsibility for 
incorporating safety and health remedies into the production cycle, 
that is, away from the regulatory agencies and onto the mine machinery 
manufacturers. This is akin to requirements for the installation of 
safety equipment on automobiles is part of the automobile 
manufacturers' responsibility, and not the responsibility of the 
automobile driver.
    For example, longwall mining machines cost in excess of $50 million 
and are unparalleled in their ability to mine millions of tons of coal. 
Yet, few if any, safety and health features are designed into this 
equipment. There are no locations to store self- rescuers (SCSRs) but 
instead, miners continue to have to strap these bulky boxes onto their 
belts. Likewise, and perhaps most disastrously, this longwall equipment 
is not engineered or designed to capture the tons of coal dust created 
as an integral part of this high speed powerful cutting machine. 
Instead, miners who are stationed along the 100+ yards of the longwall 
machine are inhaling coal dust, after the fact efforts to control the 
dust with water sprays and shields are only partially effective at 
best. Moreover, there is significant lost energy as the coal dust is 
blown into the mined out workings. A vacuum system which captures the 
coal dust could both capture that energy (the coal dust), and 
dramatically reduce miner's risk of developing black lung and of a 
coal-mine dust explosion.
    Similarly proximity detectors are not being built into mining 
equipment purchased today by mine operators. Video cameras providing 
side and rear viewing for haulage truck drivers sitting 25 feet off the 
ground, are not standard on all equipment, nor are harden cabs with air 
supply systems. Despite being technologically available, these common 
sense protections are not designed into new pieces of equipment sold to 
the mining industry.
    The development of health and safety equipment used by the mining 
industry has been historically on a separate design and marketing track 
from coal production equipment. Over the decades, the approach has been 
to add protections and safeguards to the miners--and often as stop gaps 
to the hazards, such as respirators, hearing protectors, and SCSRs, 
etc.--rather than to eliminate the problem and make the protection part 
of the production equipment. This disjointed approach, which segregates 
development of the production equipment from the installation of safety 
and health equipment, must change.
    Fourth, innovative ways to regulate must be explored. Simplified 
quasi requirements agreed upon by all the parties could be made part of 
the duty of care model and failure to comply would open the operator to 
litigation if he/she failed to adopt the industry adopted preventative 
methods and norms.
    Moreover, Congress could follow the model adopted in the landmark 
1969 Coal Act, and instruct the industry directly on what is expected 
for miners' safety and health in the law, rather than directing MSHA to 
regulate. In a regulatory system that is broken and incapable of 
rapidly and effectively addressing the many hazards still faced by U.S. 
miners, direct Congressional intervention such as was done in 1969 in 
adopting dust standards at 2.0 mg3, may be justified, and would not be 
unprecedented.
    Finally, industry is not prohibited from adopting voluntary 
standards and joining in voluntary education and training efforts. Two 
models which we undertook included: a Comprehension Dust and Noise 
Training and Sampling Program for stone, sand and gravel operations, 
and the national campaign to eliminate silicosis.
    Under existing Metal/Non-Metal Mine regulations, operators are 
required to monitor levels of air contaminants and noise, as frequently 
as necessary, to ensure that their engineering controls are working 
properly. At these kinds of miners, many mine operators do not 
routinely conduct this monitoring, but instead rely on , MSHA 
inspectors, who make inspections twice a year, to monitoring the dust 
and noise at their workplaces. In essence, some operators rely on MSHA 
to be their industrial hygienist, although MSHA is only on-site twice 
per year.
    Under an agreement signed with the National Stone, Sand and Gravel 
Association, MSHA provided used dust- and noise-monitoring equipment to 
mine operators, and provided multi-day training to miners or 
supervisors so that these small operations would conduct their own 
exposures samples for these two health hazards. By learning to 
monitoring the mine environment as part of their routine production 
cycle, these miners and operators could assess for themselves whether 
their engineering controls were working properly.
    The second example was MSHA's national campaign to eliminate 
silicosis. It involved the identification of a problem (i.e., excess 
exposure to respirable crystalline silica) especially in Metal/Non 
Metal mines; education--providing information on the need for having 
and maintaining effective dust controls; and enforcement targeted to 
the training, controls and most importantly, levels of exposure. This 
comprehensive model involved both industry and labor and was 
successful, at least during my tenure, on highlighting the risks from 
silicosis.
    The changes proposed here would, if adopted in part, address the 
risks identified at the Sago, Aracoma/Alma, and Kentucky Darby mines 
and would hopefully protect miners from the types of disastrous 
consequences which occurred in 2006. But they would also address the 
long term problems which have hampered the agency from addressing 
ongoing existing problems.
    Finally, these changes could help reestablish the United States as 
the safest mining industry in the world.
                                endnotes
    \1\ Attached Chart prepared under the direction of Suzanne M. Weise 
and Professor Patrick C. McGinley (West Virginia University College of 
Law).
    \2\ Self-contained self-rescuer approval process, joint rule by 
MSHA and NIOSH, (60 Federal Register 30398, June 8, 1995); First-Aid at 
MNM Mines, (61 Federal Register 50432, September 26, 1996); Explosives 
at MNM Mines, (61 Federal Register 36790, July 12, 1996);
    Safety standards for diesel equipment in coal mines, (61 Federal 
Register 55412, October 25, 1996); Tuition fee waiver at MSHA's Academy 
in Beckley, WV, (62 Federal Register 60984, November 13, 1997); Civil 
penalties (63 Federal Register 20032, April 22, 1998); Training 
requirements for experienced miners, 63 Federal Register 53750, October 
6, 1998); Changes to operator's daily inspection reports at surface 
coal mines, (63 Federal Register 58612, October 30, 1998); Training for 
sand, gravel and stone miners (Part 46), (64 Federal Register 53080, 
September 30, 1999); Coal mine ventilation, (64 Federal Register 45165, 
August 19, 1999); Protecting miners from hearing loss, noise standard, 
(64 Federal Register 49548, September 13, 1999); Hazard communication 
(interim final rule), (65 Federal Register 59048, October 3, 2000); 
Diesel particulate matter protection for coal miners, (66 Federal 
Register 5526, January 19, 2001); Diesel particulate matter protection 
for metal and nonmetal miners, (66 Federal Register 5706, January 19, 
2001)
    \3\ E.g. Presidential Review of Agency Rulemaking by OIRA 
(September 2001); OMB Circular A-4, New Guidelines for the Conduct of 
Regulatory Analysis (March 2004); OMB's Benefit-Cost Methods and 
Lifesaving Rule (May 2003); Information Quality Bulletin for Peer 
Review (December 2004); OMB Bulletin for Good Guidance Practices 
(January 2007)
    \4\ Federal Mine Safety and Health Act of 1977
    \5\ Occupational Safety and Health Act of 1970.
    \6\ MSHA noted that single-shift air samples are part of standard 
industrial hygiene practice and the air monitoring approach used for 
all other workplace air contaminants sample by MSHA and OSHA. This 
anomaly of ``averaging samples'' only exists at U.S. coal mines.
    \7\ The proposed rule was published on February 18, 1994 (59 
Federal Register 8357).
    \8\ The final rule was published on February 3, 1998 (63 Federal 
Register 5687)
    \9\ That is, the National Mining Association and the Alabama Coal 
Association.
    \10\ Centers for Disease Control and Prevention. Advanced Cases of 
Coal Workers' Pneumoconiosis--Two Counties, Virginia, 2006, 55(33): 
909-913, (August 25, 2006).
    \11\ ``Thinking Out-Side-The Box: The Proposed Blended Duty of Care 
and Safety Case Model for Regulation in the Coal Mining Industry of 
Australia.'' Memorandum prepared at the request of J. Davitt McAteer, 
Special Advisor to West Virginia Governor, Joe Manchin, III, for the 
Sago Mine disaster investigation by Suzanne M. Weise, Esquire and 
Professor Patrick C. McGinley (West Virginia University College of 
Law).
                                 ______
                                 
    Chairman Miller. Thank you very much. Thank you very much 
for your testimony.
    We have a vote on. I think what I will do is I will go 
ahead and start my questioning, my 5 minutes; and then when we 
come back on our side we will recognize Mr. Kildee, Mr. Hare, 
Mr. Rahall, and then go down the dais here. But there are two 
votes.
    I just warn the members, I think that the Leadership's in 
the process--three votes? The Leadership's in the process of 
tightening up the clock on the first vote. So the idea that you 
can leave here when there is zero on the clock, I think you 
will find yourself in some jeopardy at the other end. We will 
see whether that works or not.
    Thank you very much, all of you, for your testimony.
    Mr. Stickler, if I might begin with you, earlier today we 
toured a demonstration of the rescue chambers, in-place rescue 
chambers that are now approved for deployment in West Virginia. 
I think 100 of them have been ordered in West Virginia. My 
understanding is there are five or six of the models that have 
also been approved, and I think also NIOSH has removed any 
objection to their deployment. Is that correct?
    Mr. McAteer. NIOSH has provided a letter to the State of 
West Virginia suggesting that they don't see--they are not 
saying in finality, but they don't see any potential conflict 
between their approval process and the approval in West 
Virginia.
    Chairman Miller. Mr. Stickler, can you tell us where you 
are in the approval process for this?
    You know, I wrote you a letter back in March, I guess it 
was, asking for an emergency rule on this, and that was 
declined. Can you tell us where you are now?
    Mr. Stickler. As you know, the MINER Act establishes NIOSH 
to do research on refuge chambers and to issue a report by the 
end of this year. MSHA has not simply been waiting on NIOSH. We 
have been working with them. We have several working groups, 
representatives from MSHA and NIOSH working together, looking 
at significant issues regarding the testing of the refuge 
chambers, the development of a protocol for doing the test; and 
I have been told that NIOSH will likely recommend that MSHA do 
a physical test of the refuge chambers before we would provide 
any approvals.
    I believe that MSHA needs the time that's provided in the 
MINER Act to address the specific criteria that these refuge 
chambers should meet and to establish a protocol for testing 
and a facility to conduct that testing. And when we receive the 
report from NIOSH at the end of this year, then at that time we 
will move forward.
    Chairman Miller. You anticipate that would be when?
    Mr. Stickler. I would anticipate that NIOSH will complete 
their study, issue their report by the end of this year, as 
mandated in the MINER Act; and then there is 180 days in the 
MINER Act for MSHA to make a decision on what would----
    Chairman Miller. That's the middle of next year.
    Mr. Stickler. That's right.
    Chairman Miller. And what would be completed by the middle 
of next year?
    Mr. Stickler. Well, as I said, NIOSH would complete their 
study by the end of this year. That would be presented to 
Congress and the Secretary of Health and Human Services and 
Secretary of the Department of Labor. MSHA then would have 180 
days to study the information that's available and to make a 
decision on what action they would take.
    Chairman Miller. And you would make those decisions. And 
what would the timetable be after that?
    Mr. Stickler. Well, I can't project the timetable. You are 
talking after the 180 days?
    Chairman Miller. Yes.
    Mr. Stickler. I can't project that at this time.
    Chairman Miller. Well, what would the ordinary course of 
events be--how long would that take you after the 180 days?
    Mr. Stickler. Well, during the 180 days, not saying that it 
would have to take 180 days for MSHA to make a decision, but 
based on what course of action MSHA would decide to take, that 
would determine the amount of time that would be required after 
that.
    Chairman Miller. For what purpose?
    Mr. Stickler. Well, for whatever MSHA decides to do. You 
know, there are various options. You could have a regular rule. 
That's a possibility. Normally, we found that to do a rule 
takes at least a year. You know, that's something that we 
will----
    Chairman Miller. So we are talking two-and-a-half years?
    Mr. Stickler. That's a possibility, yes.
    Chairman Miller. So the situation will be what in West 
Virginia? These are going to be illegal?
    Mr. Stickler. Well, in the interim----
    Chairman Miller. Mines----
    Mr. Stickler. I think you are aware that MSHA has issued a 
policy on breathable air which requires mine operators to 
provide 96 hours of breathable----
    Chairman Miller. My understanding is--I don't know if there 
is a picture of the shelter that we toured, but--there it is--
that the shelter complies with that. That's the West Virginia 
standard, too, apparently.
    Mr. Stickler. MSHA is accepting the refuge chambers that 
West Virginia is using, and other mine operators across the 
country are looking at to provide the 96 hours breathable air.
    Chairman Miller. But you are not going to have a standard 
for two-and-a-half years.
    Mr. Stickler. For a refuge chamber. I can't tell you what 
MSHA's going to do after they receive the report from NIOSH 
other than we will study all the information available and look 
at the facts and decide and make a decision during the 180 days 
that Congress has provided for MSHA to make that decision.
    Chairman Miller. So that's a good thing we didn't say 4 or 
5 years, I guess. I don't get your sense of urgency. I am lost 
somewhere.
    Let me ask you, you mentioned in your testimony on the 
seals that you are in the process of a rule on the seals. 
Again, could you tell us where you are with that?
    Mr. Stickler. Well, we submitted that to OMB on May the 
8th; and I have a verbal confirmation that OMB has cleared that 
emergency temporary standard today. I would anticipate within a 
few days that will be published in the Federal Register.
    Chairman Miller. That will be implemented how? There is 
apparently a significant inventory of seals that may be 
improperly constructed or insufficient under what we have 
learned. What's the process of going through that inventory and 
making a determination about the replacement of each?
    Mr. Stickler. Well, back last year, MSHA issued a policy 
requiring MSHA inspectors to inspect all the underground seals. 
There are approximately 14,000 seals in underground coal mines. 
MSHA has completed that inspection. We have issued quite a few 
violations requiring seals to be repaired or replaced. At that 
time, we also required the operators to do a survey of the 
atmosphere behind the seals and to take appropriate remedial 
action based on the results of those surveys.
    Chairman Miller. So will this rule speed up that process by 
which remedial action has to be taken?
    Mr. Stickler. This rule will go beyond the process that was 
in the policy in--regarding establishing new seal strength 
standards for seals that will be built in the future, requiring 
regular monitoring of the atmosphere behind seals, and remedial 
action if the atmosphere would be at or near the explosive 
range.
    Chairman Miller. So--this is layman's terms--the work list 
will be based upon the previous inspections made. I mean, I 
assume we will go back--under this rule, go back and correct 
all of those seals.
    Mr. Stickler. The corrections to the previous--the previous 
inspections that MSHA has done, those corrections have been 
made.
    Chairman Miller. They have all been made?
    Mr. Stickler. Made as far as repairs and replacement of 
seals that we identified were not built according to standard 
or because of deterioration of the underground mining 
conditions.
    Chairman Miller. So they are all in compliance with the new 
rule?
    Mr. Stickler. Are the existing seals in compliance with the 
emergency temporary standard?
    Chairman Miller. Yes.
    Mr. Stickler. No, the emergency temporary standard will go 
beyond----
    Chairman Miller. That is my point.
    Mr. Stickler. That is why we are putting out an emergency 
temporary standard.
    Chairman Miller. So the existing seals are going to be 
compared against the emergency standard, right?
    Mr. Stickler. The existing seals, we will require 
monitoring of the atmosphere. And if the atmosphere behind the 
seals is at or near the explosive range, then remedial action 
will have to be taken. That could be replace the seal with a 
higher strength seal that would be explosion proof, withdraw 
the miners from the underground workings, or other options that 
an operator----
    Chairman Miller. The operators will provide them monitoring 
under guidance of MSHA?
    Mr. Stickler. The operators will be responsible for doing 
the monitoring, and MSHA will monitor on their quarterly 
examinations of the underground mines.
    Chairman Miller. Thank you. We will recess for the purpose 
of going for this vote.
    [Recess.]
    Mr. Kildee [presiding]. I can recall one particular hearing 
when we had a coal mine owner, at least the president of the 
company, testifying and, of course, giving the best face 
possible of his company's operations; and he told Carl Perkins, 
Chairman Perkins, that our first concern is the safety of our 
workers. And he, of course, put the best face on the safety of 
the workers. He put it on a little strong; and Carl finally 
banged the gavel and said, ``Sir, when I was 5 years old, my 
daddy put me in the back of the buckboard, took me over to the 
next holler for the funeral of my cousin, who was killed in one 
of your mines. So don't you preach to me about mine safety. I 
know about mine safety or the lack thereof.''
    I always remember that. I learned the law from Carl 
Perkins, but I also learned the morality of putting human 
beings first, and that can be done.
    If there be a mine owner who is so poor they cannot carry 
out the safety of the workers, they shouldn't be in business. I 
mean, really, when you put people down in those mines, you 
better have the wherewithal to do what's legally right and 
what's also morally right.
    That is my preaching for the day.
    Mr. Stickler--I spent 6 years in the Catholic seminary, so 
I do preach a bit once in a while.
    Mr. Stickler, your report on the Sago accident, it is not 
the first to point out that, in an explosion, the walls which 
maintained the flow of air down to where the miners are working 
and back out again can fail in an explosion. I understand that 
there are what I will call stoppings. If this happens, it not 
only destroys the ability of the miners to get air, to breathe, 
but also slows down the rescue operations, because the rescuers 
need to replace these walls as they move forward so they too 
can be in safety. What is MSHA doing to address this well-
recognized explosion hazard?
    Mr. Stickler. Well, that is primarily the thrust of the 
emergency temporary standard that we are currently working on, 
is to address the seal strength so that future seals will 
provide adequate protection for the miners and to also require 
that sealed areas be monitored and remedial action taken when 
it is indicated it is needed.
    Mr. Kildee. We are actually talking about the walls of the 
mines, aren't we? There are two things that tend to make sure 
there is adequate egress and adequate safety, the coal columns 
you leave up and then the walls. What do you do to make sure 
that those walls are adequate? What kind of inspections do you 
give for that?
    Mr. Stickler. Are you referring to the seals? Is that what 
you are----
    Mr. Kildee. No.
    Mr. Stickler. There is walls. I am not sure what you mean. 
The coal walls, the ribs or----
    Mr. Kildee. The stoppings.
    Mr. Stickler. Stoppings.
    Mr. Kildee. Yes.
    Mr. Stickler. Relation stoppings, relation controls. Those 
are required to separate the intake escapeway, fresh air 
escapeway, any belt haulage entries, track haulage entries; and 
the return air courses is where the ventilation stoppings are 
used to control the air flow and make sure the air flows where 
it's intended to be.
    Mr. Kildee. Are those inspected regularly to make sure that 
they meet at least the basic standards and specifications?
    Mr. Stickler. That is part of the quarterly inspections 
that our underground coal miners inspectors do, plus the daily 
inspections on the pre-shift examinations that the mine 
operator is required to do.
    In addition, for those areas that aren't inspected during 
the pre-shift examinations every shift, they are also required 
to conduct weekly examinations.
    Mr. Kildee. You would consider that a high priority?
    Mr. Stickler. It is a high priority to do the safety 
inspections correctly, yes.
    Mr. Kildee. And when you train--when inspectors are 
trained, they are trained in both technology and priorities. Is 
that considered one of the high priorities in their training?
    Mr. Stickler. Yes. MSHA's inspectors are very well trained.
    Mr. Kildee. Mr. Bertoni, I know you are familiar with the 
new regulations MSHA issued to adjust the way it calculates 
proposed penalty assessments. MSHA has indicated that a key 
reason for rewriting these regulations is to insure that the 
more serious violations will receive higher penalties. Yet, as 
I understand your statement, if a mine operator asks a hearing 
officer of the independent Mine Safety and Health Review 
Commission to review a proposed assessment, the hearing officer 
isn't bound to give any particular weight to how serious the 
violation may be. You think something needs to be done about 
this, and could you elaborate on that?
    Mr. Bertoni. I guess the--our main point, I guess 
initially, is that we acknowledge the increase in the penalty 
amounts that MSHA has, you know, put in place. We believe the 
point system for, say, gravity increased from 33 to 88, which 
will result in at least an initial higher penalty. And as that 
penalty or that case progresses through the appeals process, 
the individual who is doing the adjudicating at the appeals 
level must consider the six factors that need to be considered 
in terms of calculating the penalty amount.
    I guess our concern was we know that they are using the six 
statutory factors, but it is unclear how each of those factors 
are being weighted and how the end result penalty, the final 
penalty amount is being arrived at. That was just an area every 
time when we looked at these cases we came away, at least some 
of them, with some question as to how they weighed these 
particular amounts. And that was--it was not clear how these 
penalties were ultimately----
    Mr. Kildee. So there is a lack of clarity in that area 
then?
    Mr. Bertoni. In our review, we found there was a lack of 
clarity, at least in some cases, in some fairly large cases.
    Mr. Kildee. Thank you very much.
    Mr. McKeon?
    Mr. McKeon. Thank you, Mr. Chairman.
    Dr. Grayson, there has been a lot of discussion about 
refuge chambers that are used in the underground coal 
environment. Have these units been tested underground? Have 
they experienced human testing? What, in your opinion, should 
be the appropriate study protocol to test these chambers? And, 
finally, do you have any concerns about the use of these 
chambers?
    Mr. Grayson. Actually, I did participate in the approval 
process for one----
    Mr. McKeon. Is your mike on?
    Mr. Grayson. Yes, but I am probably not speaking loud 
enough. Sorry.
    I did participate as the professional engineer on one of 
those rescue chambers. What we had done is we looked at the 
criteria that are required by the State of West Virginia and 
then did various types of analyses to make sure that all of 
those things that were specified were met according to the 
analysis.
    One particular rescue chamber was placed into an explosive 
mixture and tested to make sure it could at least handle 25 psi 
overpressure. And, actually, it was around 30. That is the only 
one to my knowledge that was actually tested in an explosive 
environment.
    Again, it was an engineering type of analysis, including on 
the temperature rise and heat transfer and stuff of this 
nature. That is of concern about the miners who may be in 
there. There was a convergence of the analyses to show that the 
temperature would be maintained below 95 degrees in three 
different analyses converged among the five different chambers 
that were analyzed.
    So that gives some credence to the validity, if you will, 
of the calculations. But no man test has been done, just to 
make absolutely sure that if the miners are in there, indeed, 
the temperature will be maintained and then the oxygen-CO2 
balance would be maintained.
    Mr. McAteer. Mr. McKeon, if I might speak to that question, 
please.
    Mr. McKeon. Sure.
    Mr. McAteer. The State of West Virginia analysis of these 
devices relied in part on the U.S. Army's tests that were done 
with some of these same kind of or similar devices, as well as 
some NASA tests, and relied--and borrowed that--those tests. 
They did not undertake human testing, but in fact relied upon 
the tests that were done by those other two agencies.
    Mr. McKeon. Okay. Dr. Grayson, your testimony discusses the 
development of the machine-mounted, continuous, respirable dust 
monitor. Because the research, in layman's terms, essentially 
skipped a step, the dust monitor didn't perform in the 
underground coal environment. Can you discuss why that step was 
bypassed and what cautionary tale that tells us today about not 
skipping steps in the scientific process?
    Mr. Grayson. Yes, I can elaborate on that.
    Research for new technology that has been applied elsewhere 
but not actually tested in a mine environment does require some 
pretty good steps and protocol to make sure that once the--in 
this particular case, once the accuracy is attained, both by 
the manufacturer and then in the test chamber, then before we 
actually place these into the mine environment, where there is 
quite a bit of vibration and water droplets and things of this 
nature, we really do need to be sure that it is going to have a 
chance to survive that mine environment.
    So the protocol had called for some laboratory testing and 
then later on some in-mine testing with one or two prototypes 
to be sure that the robustness would be achieved. And then if 
we did see any problems, either in the laboratory or in the 
mine, then we could go back and modify the design so they could 
better withstand the vibration and water droplets and other 
challenges that might show up from the mine environment.
    What happened was that as soon as the prototypes--I think 
there were 10 of them altogether that were created. As soon as 
they were created, we did get some pressure to go ahead and 
move them into the mine environment and sort of do a 
demonstration, if you will. And at the same time we were doing 
the demonstration, we were kind of checking the robustness and 
see how well they would do. Unfortunately, all of the five 
monitors--I believe it was five of them; it might have been 
six--anyway, all of them were non-functional by the end of a 
month. One of them failed on the first shift and primarily 
because of water droplets.
    So even though we were able to get them in the mine, it 
then quickly became more of a development project rather than a 
research project because we violated the research protocol. And 
then at that point in time we had a parallel path, where we 
were doing the personal dust monitor and we had a partnership 
that was set up on both of these and had put together the 
protocols for the research on both of those. And the other one 
on the personal dust monitor, the protocol was followed to 
fruition. And now we are, you know, very, very soon--we have 
done all the field testing as well, and they are robust, they 
are accurate, and we will soon have those implemented.
    But the other particular technology then became pretty much 
something that industry, meaning the manufacturers, would have 
to work on with MSHA in order to get the robustness that was 
required in the mine environment, in our opinion.
    Mr. McKeon. Have those been pulled out then?
    Mr. Grayson. The machine-mounted dust monitors?
    Mr. McKeon. The ones that--no.
    Mr. Grayson. The personal dust monitors?
    Mr. McKeon. The ones you put in that failed.
    Mr. Grayson. Yeah, they had to be pulled out.
    Mr. McKeon. They are all gone?
    Mr. Grayson. Yes.
    Mr. McAteer. Mr. McKeon, if I could speak to that issue. I 
was the assistant secretary during the time these tests were 
being conducted. I was the one who urged that these devices be 
put underground and was driven, in fact, by my knowledge of a 
number of miners who have suffered from black lung disease. And 
the urgency that that gives you when you have--when you face 
the problem of seeing and continuing to see that we have in 
this country new cases of black lung disease, when other 
countries have eliminated the disease entirely.
    I am struck by two points that Dr. Grayson makes. The 
latter point that soon these devices will be underground. 
``Soon'' was now 10 years ago when they first said that soon 
they were going to have them. We still don't have those 
devices.
    Secondly, we didn't take all 10 devices underground. We 
took a sampling. It was four devices that we took underground, 
and we wanted to see them tested. The protocol was not violated 
from the standpoint of all the devices were not taken 
underground, but we said that NIOSH's approach in this matter 
lacked the urgency necessary to address this problem. I would 
do it again tomorrow. It did not slow the process down in any 
way, shape or form. It did not slow the development down. That 
development still isn't there yet today.
    Thank you.
    Mr. Kildee. The gentleman's time has expired.
    Mr. Rahall?
    Mr. Rahall. Thank you, Mr. Chairman.
    Thank each of the panelists for their expert testimony 
today and, most importantly, your commitment to coal miner 
safety.
    In response, Davitt, in response to your last comment, I 
recall that very well, and certainly commend you not only for 
those efforts but your efforts in West Virginia to insure that 
no more disasters occur in our State.
    You know, there are so many issues, all of which have been 
touched upon already by the GAO, the fines, rescue teams, the 
loss of inspectors, the process that we go through for a safety 
inspection, questions galore in each one of those areas. 
Suffice it to say, in numerous areas we have had to be 
defensive in the Congress over the last 6 years to prevent any 
degradation or raising of dust level standards, for example, in 
our mines.
    That was a roll call vote we had on the floor of the House 
many years ago. We had to scream and yell when certain 
regulations were rescinded that allowed belt entry air, for 
example, to be used as a ventilation vehicle.
    But that is not the purpose of my questions or the purpose 
of today's hearing, so far, anyway. I would like to follow up 
on Chairman George Miller's questioning, very good questioning.
    We in West Virginia are making tremendous advances. We are 
pushing ahead. We are not waiting for any deadline to be at our 
doorstep tomorrow morning or any regulation that tells us we 
have to do something. We are doing it because we are concerned 
about coal miners' health and safety. Governor Manchin has 
taken the leadership, and Davitt McAteer is following through.
    But what I want to ask you, Mr. Stickler, is, because West 
Virginia is taking such fast action, it appears it is causing 
problems for us as far as long-term Federal compliance. We have 
heard of our commitments to these refuge chambers. We have 
heard of our movement in other areas. We are moving ahead 
rapidly. It is requiring operators, many of whom are 
undertaking it very legitimately and commendably. They are 
investing millions of dollars in these new technologies. But 
they have a fear.
    And there are others who are not doing such investments 
because they are using the excuse, what if MSHA 2 years from 
now or on down the road comes up with something different and 
we get told we are bad boys then and get fined? There is that 
uncertainty, legitimate uncertainty, that operators are facing. 
They are afraid that you will come out with regulations making 
whatever technologies they invest in today obsolete down the 
road. That legitimate fear, as anybody would be afraid.
    The State is trying to get MSHA to allow operators some 
kind of cushion so that the West Virginia technologies that we 
are moving ahead on of our own volition and concern for miners' 
safety, we are looking for some type of cushion so that these 
technologies to be considered compliant for today's time and 
then newer technologies are approved by you in the future. Are 
you in any way attempting to insure our operators that they 
won't get fined or they won't be considered obsolete and all 
the investments they are making today being thrown out the 
window?
    Is there some type of commitment or some type of assurance, 
some type of process, partnering, if you will, whatever you 
want to call it, being put in place to insure operators that 
they won't be, 2 years down the road, told everything you have 
done is wrong?
    Mr. Stickler. Well, we have worked together. 
Representatives from MSHA have participated as far as some of 
the work that West Virginia did in the area of technology, the 
refuge chambers.
    We have recently met with representatives of West Virginia 
to hear some of their concerns. But, at the end of the day, 
MSHA's responsibility comes from the direction of Congress; and 
Congress has specified, for example, two-way wireless 
communication from the surface to underground miners that may 
be trapped. And I don't think that we should or could move away 
from the definition that Congress has provided and the time 
frame that Congress set to have this technology in place.
    Mr. Rahall. So it seems you are telling me that you need 
more legislative direction from Congress then, when I would say 
what we have had on the books is sufficient. It is only what is 
on the books that ought to be implemented.
    Mr. Stickler. What I am saying is we are intending to 
follow the direction that Congress provided in regard to 
requirements for technology.
    Mr. Rahall. You want us to mandate these refuge chambers?
    Mr. Stickler. I am not going to--I can only tell you that I 
am committed to implementing and following the process that 
Congress has put in place.
    Mr. Kildee. Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    I thank the witnesses for their testimony, for being here 
today, and for your commitment I think across the board to 
improve miner safety.
    I say to my colleagues, Mr. Rahall and Ms. Capito, if she 
were here, that I am not the least bit surprised that West 
Virginia is proving to be more agile, more nimble, more 
responsive than Federal bureaucracy. But that would apply in 
many cases on many subjects. It is an expectation. Federal 
bureaucracies move slowly. And I want to explore that just a 
little bit. I am not excusing it, because I share the 
frustration that everybody else has.
    I want to go back to the subject which we have talked and 
talked and talked about, and that is these shelters. I, too, 
went and visited the one that is over here on the Capitol 
grounds, and it is pretty neat. It looks like a really good 
idea to me. In fact, that is what I said to the folks over 
there.
    But it was also explained to me while I was there that 
changes are already being made to this chamber. It is being 
reoriented, it is being strengthened, thicker steel, more blast 
protection, and so forth.
    So it seems to me we are sort of caught right now in do we 
want something now--and I would think if I were a miner I would 
want something now--or do we want something better later? And 
that is the trap that we fall into in so many ways. It is like 
body armor for troops. Do we go with the best that we have? Do 
we wait another 4 or 5 years and get something better, another 
4 or 5 years after that? You would rather have something than 
nothing.
    So the question--I am just following up on Mr. Rahall--what 
is it we can do to allow the employment, deployment of these 
shelters and still provide some protection, if you will, for 
those companies that are willing to put them in?
    I don't know that we can, frankly, because I know I can 
imagine the outcry should it prove that one of these shelters 
where miners have sought refuge in is inadequate, has failed. 
There would be an outcry, unquestionably lawsuits up and down 
the street.
    But I am just sort of throwing it out for any of you. Is 
there a way that you can suggest which we can do something in 
statute or something we can do that would allow mines to employ 
what the best technology is that they have at hand today? 
Recognizing that there is going to be something better later. 
Because, whatever it is, it is going to be obsolete. There is 
just no question about it.
    Is it going object obsolete next year or 5 years from now 
or 15 or 20 years from now? What is it we can do to allow the 
employment of this technology? From anybody?
    Mr. Stickler, you are sort of on the spot here with the----
    Mr. Stickler. Well, we currently allow operators to use the 
refuge chambers that are on the market today as a way to comply 
with the 96 hours of breathable air that MSHA is requiring.
    Mr. Kline. By the way, where did we get the 96 hours? Where 
did that come from?
    Mr. Stickler. Well, that was a policy that MSHA set. We did 
research on the disasters that have occurred in the past to 
determine how long it took rescue teams to locate the miners. 
We also looked at situations such as, when you have a fire or 
explosion, particularly, how long does it take for the mine 
atmosphere to stabilize enough that you can get accurate 
measurements to safely send rescue teams into the mine? And we 
thought that the 96 hours would provide that.
    Mr. Kline. Okay. Mr. Rahall, if you would like, I will be 
happy to yield back to you. I am not sure we got to your--to 
the answer to your question. I don't know if you want to pursue 
that any further. I am trying to look for a way to make this 
work.
    Mr. Rahall. Let me commend MSHA on the 96 hours. That is 
beyond the West Virginia 48 hours, and I appreciate it. Let me 
give the rest of the panel a chance to answer the same 
question.
    Mr. Kline. All right.
    Mr. McAteer. Mr. Chairman, if I might, this has been a 
subject that we have been concerned about for some years. We 
get a piece of safety equipment, we put it in the mines, and 
then there is no progression because the industry is small in 
terms of numbers. There is not a marketplace-driven kind of 
renewal process. And it has been a concern for a number of us 
in the industry.
    Two parts to--the answer to my question is in two parts to 
you, though. One, we need to act on what we have now, 
recognizing that it is not perfect. It is not a perfect world. 
But we need to get chambers underground now.
    Then we need to continue to kind of research and to kind of 
develop--this same kind of ongoing kind of development needs to 
be done, both at--the National Research Council study, recent 
study of NIOSH's actions suggest that they need to do some 
kind--there needs to be some mechanism to try and get us to get 
newer devices on an ongoing kind of basis. There isn't such--
there is not such a program that exists today.
    Mr. Kline. Okay. I see, Mr. Chairman, my time has expired; 
and maybe Mr. Grayson wants to chime in as well, which is 
certainly fine with me. But it seems to me, with your 
indulgence, it looks like we are still in that trap. If Mine 
Safety--MSHA was to come forward and mandate this and it turns 
out they are not adequately tested and they fail, it would be a 
catastrophe.
    I yield back.
    Mr. Kildee. Thank you.
    We have two votes. Ms. Woolsey, you want to take your 5 
minutes now?
    Ms. Woolsey. I would. Thank you, Mr. Chairman.
    Mr. Kildee. The gentlelady from California, Ms. Woolsey.
    Ms. Woolsey. I want to briefly comment on the testimony. If 
I were one of the families in the audience and I was listening 
to Mr. Stickler, I would be out of my mind in frustration over 
the lack of urgency of your answers. Come on. This has been 
years. We have had deaths.
    Best technology versus future technology. Obsolescence, it 
is going to happen. But a good-faith effort has to be made to 
ensure that industry, mining industry, any industry, is doing 
the best they can at that particular time, not risking doing 
nothing in order to get the best later. That is always going to 
be moving away in front of us. And I would assume that every 
industry has budgets for upgrading for efficiency and safety 
and making things better. So the mining industry is an 
industry. Let us help them figure out how to stay current and 
keep the workers as safe as possible.
    Prevention is one tool. Certainly inspection is a great 
step. Accident reports and reviews of what happened during an 
accident is another step. Near misses, if they are reported--I 
hope they are in this industry--that is something that might 
have happened that didn't cause a huge problem but could have, 
we need to learn from that.
    And also learning from the workers. We had a mine hearing 
last month and heard testimony from these wonderful women that 
are here and the families and the widows of the miners and from 
miners themselves; and we learned that these miners and their 
families are reluctant to come forward to report health and 
safety violations in mines because of their fear of punishment, 
of being blacklisted.
    Yesterday, my subcommittee, Workforce Protection 
Subcommittee, had a hearing on private whistleblowers; and we 
had Jeffrey Wigand, who blew the whistle on big tobacco, and 
John Simon, who has a complaint about trucking violations. They 
told their stories. They were really very brave.
    And I hope you agree with me that one important element of 
mine safety is to make it possible for the miners who are there 
day in, day out to come forward to report health and safety 
violations without fear of retribution. So I would like to open 
it up and ask you each how you think we can make that process 
more open, safer, and actually learn from it as our miners come 
forward and tell us where they see safety problems. All right, 
Mr. Grayson?
    Mr. Grayson. If I may, I did want to follow up on the 
rescue chamber idea, too. I think all we need to do is think 
what would happen if a similar explosion occurred today and 
they decided, the miners decided in their own minds that they 
cannot get out? We would be where we were.
    Ms. Woolsey. Well, I don't want to go off on that other 
question----
    Mr. Grayson. I am going to go on to that, too.
    Ms. Woolsey. Okay.
    Mr. Grayson. I am going to go on that point next. I just 
wanted get that one in.
    Because, right now, they would have to build up a barricade 
again, and it would not be that great.
    Ms. Woolsey. Okay. Answer my question on how to make this 
so they are not blacklisted.
    Mr. Grayson. Well, in the commission report we did note 
that there is a minimum level of safety performance that all 
operators should follow; and we have specified in there----
    Ms. Woolsey. When they are not and the worker complains 
about it, how does that work?
    Mr. Grayson. If they do not, they should not be in the 
business. We also agreed to that as a commission.
    So, with that said, we need to be much more progressive in 
the way that we, number one, perform; and if they can't perform 
to that level they should be out of the business. And number 
two, target them. Then, using the safety statistics, violations 
included----
    Ms. Woolsey. Okay. You are not answering my question, Mr. 
Grayson. Mr. McAteer will.
    Mr. McAteer. The need for protection is profound. The Mine 
Act has the most far-reaching protection available to any 
worker in the country. The difficulty is that the workers have 
not had a--and don't have a way to get that--exercise that 
right; and the agency has not been strong enough in endorsing 
or in, A, educating and, B, in following up with those kinds of 
complaints.
    The agency has a role, and the individual miner has a role. 
The difficulty we have is that they are in remote areas, and it 
is very hard for you to get miners to come forward with claims 
and to protect them when they do.
    Mr. Kildee. We have three votes pending on the floor, and 
we apologize, but we shall return. I hope you can remain. This 
is a process around here. I have been in it for 30 years. It 
doesn't work perfectly. But if you could remain, I know Mr. 
Miller wants to come back and the other members.
    You voted already? Come take the chair.
    Mr. Payne [presiding]. Thank you very much.
    I, too, am disturbed at the lack of urgency. It seems like 
ever since I have been a little boy I have been hearing about 
mine tragedies.
    I remember the first labor leader I ever heard of was John 
L. Lewis. I mean, he was a person that was bigger than life. 
And I lived in an urban center that didn't know anything about 
mining. But it was problems then, there seems to be problems 
today, and we still seem to have a lack of urgency that we 
need.
    I wonder also about the communications. I understand that 
in the MINER Act they were talking about some kind of 
communications, wireless two-way communications. Could someone 
tell me what type of communications there are currently 
available when miners are trapped? Is there any way they can 
communicate with people outside and any more effective way that 
could be done?
    Maybe, Mr. Stickler, you might be able to bring me up to 
date on that.
    Mr. Stickler. The Mine Act regulations require----
    Mr. Payne. I can't hear you, sir.
    Mr. Stickler. The Mine Act and the regulation requires two-
way communications from the underground workings to the 
surface.
    Recently, we have required mine operators to install a 
redundant system; and that is accomplished by installing the 
communication lines in separate air courses. So if there would 
be a roof fall or a fire in one air course, a communication 
line would be protected in the second air course. But these 
systems, most of them require a hard wire, or all the ones 
underground today require a hard wire system to communicate 
from underground to the surface.
    To our knowledge, there are no purely wireless systems that 
you can communicate from the surface underground without having 
underground hard wires or antennas.
    Mr. Payne. Mr. McAteer, could you tell us what West 
Virginia is doing?
    Mr. McAteer. The present system in West Virginia, as well 
as in the country, is that we are using the cable wire system 
that has been in place for 40 years. We haven't made the 
change.
    Since Sago, there have been examinations of devices; and a 
number of those show promise. First is the leaky feeder system, 
which is, in effect, a sending a signal down that leaks, in 
effect, and can be picked up then by phones that are wirelessly 
connected to that leaking system.
    Second is dropping nodes and--putting a node system down so 
that every so often you put in a node system. That shows 
promise.
    A third system, which is from your State of New Jersey, is 
the Kutta system, which is a system that goes on a blended 
system that goes on any--I am sorry, steel or metal object and 
can in effect use a leaky feeder or use the frame of a conveyor 
belt or any one of those others. That shows tremendous promise 
as well.
    Those three systems are being tested. They are being proto-
tested in some mines and have been tested in West Virginia, and 
we expect to see some of those put in place this summer. Those 
are hopeful systems that will get us to a system that will 
provide us with some better communication. It will not be 
entirely wireless. There is some wire connected to it in some 
way. But those systems are the ones that are being looked at.
    Mr. Payne. Let me thank you very much. Since the time is 
running late, I am going to have to adjourn soon.
    There is--I understand, Mr. Holt, in your district there is 
a system being tested. Do you want to respond to that?
    Mr. Holt. Yes, Mr. Chairman, if I may.
    I come to this not just as a scientist who is interested in 
the technology that comes out of Fort Monmouth in New Jersey 
but as someone who was raised in West Virginia. I grew up 
there. My father, who many years ago as a U.S. Senator was 
known, as people from that area tell me, as one of the best 
friends the miner ever had.
    I am particularly interested in this communications because 
when you hear the stories about lost opportunities in mine 
accidents, in many cases it traces to poor communication. I am 
so pleased that last Congress we appropriated $10 million in 
emergency supplemental money for NIOSH; and there is now 
several million dollars going, as you mentioned, to the Kutta 
system and to various other wireless communication systems and 
interruptible and restorable communications systems. So I thank 
the chairman.
    Let me just finish by saying all of the discussion today 
about whether there is sufficient authority to implement the 
MINER Act rapidly are just excuses. We have got to implement 
that immediately on a fast pace.
    Thank you, Mr. Chairman.
    Mr. Payne. And I couldn't concur more.
    Let me commend the gentleman from West Virginia, Mr. 
Rahall, for the interest and concern that he has had; and I am 
sure that has had a lot to do with the speed in which West 
Virginia is moving. In this instance, the States are certainly 
moving much more quickly than we are at the Federal level, but 
this is too important to have a bureaucracy turning down.
    People's lives are at stake. We are talking about 
increasing fossil fuels. The mining industry is not going to 
get any smaller in the next immediate future. We need to act 
more swiftly.
    With that, the hearing will stand recessed until the votes 
are concluded, about 10, 15 minutes.
    [Recess.]
    Chairman Miller. Thank you, everybody, for your patience 
with these. We had a number of unexpected votes on the floor.
    I would like now to recognize Congresswoman Shelley Moore 
Capito.
    Mrs. Capito. Thank you, Mr. Chairman.
    I want to thank you all for your patience in our votes and 
recesses and all that. I know it is frustrating, but that is 
the way we live here.
    I had a couple questions. First of all, the one I am 
interested and mystified by or one of the issues is the 
communications issue. I know that there have been 137 
communications and tracking proposals, 51 applications, 19 
approved systems, 15 remodifications and only 4 new systems. 
And I read in some of our briefing papers that we remember 
Chairman Norwood when he said, if we could talk to somebody on 
the moon, why can't we talk to somebody underground in a coal 
mine?
    We want to help with these technologies and assist with the 
creation of these technologies. Where are we on this? I 
certainly hope we won't take the--I think it is 3 years 
allotted for this to seek completion of this. Can you--
anybody--or, Mr. Stickler, could you start on the status of the 
wireless technology?
    Mr. Stickler. We are looking at that. We have several 
systems that we have.
    Mrs. Capito. Hit your mic, please.
    Mr. Stickler. Is the mic on now?
    MSHA has been involved in evaluation of two-way 
communications. We have witnessed a demonstration, and we have 
tested approximately 19 different systems. All of the systems 
that we have tested to date, have been presented to us and that 
we are aware of depend on a hard-wire communications system, 
where there have not been any systems that have 100 percent 
two-way wireless that we are aware of. But we are optimistic, 
we are hopeful that the activity that is ongoing, and several 
companies are working on them, and our hope is that they will 
develop a two-way wireless system that we can communicate from 
the surface to an underground miner.
    We are trying to identify what is the next best option, and 
I think in some part it is going to be a combination of 
components from some of the best systems that are available and 
interlaying those systems on top of each other and building 
redundancy.
    Mrs. Capito. Does anybody else have a comment on that?
    Mr. McAteer. Congresswoman Capito, there are three 
conceptual processes that have led to a number of companies to 
build systems. One is where you take a telephone line and you 
feed off of that onto a wireless connection.
    A second is you put up a series of nodes, not unlike the 
satellites you now use. You place those in the ground and you 
then bank off that.
    And the third is a hybrid system that we have talked about 
a little earlier--perhaps you weren't here today--that a 
consulting group out of New Jersey has developed a medium 
frequency system that uses any, basically, metal structure in 
the mine and can communicate through that.
    None of these systems that we have today, as Mr. Stickler 
has indicated, is entirely wireless; and I don't think we will 
get to an entirely wireless system in the next couple of years. 
I think that that is a goal, but I think that, as a practical 
matter, we can get to a wireless--a system that is sufficiently 
wireless that we--given the types of explosions that we have, 
that will make us be able to--that has redundancies, that has 
an ability to shift, as you do with your own cell phone, to 
shift from one carrier to another, if one goes down. That kind 
of system will then be available to the miners in the near 
future.
    And the old maxim of the enemy is the perfect of the good, 
we need to put the good in and continue to search for the 
perfect.
    Mrs. Capito. I think one of the things at Sago which was 
extremely tragic to all of us was the fact that they were 
there. Had they had the ability to communicate, they might be 
sitting here today; and I know we all agree that that is a 
tremendous tragedy.
    I would also like to associate myself with the question 
that my colleague from West Virginia asked on the development 
of the portable chambers for air that West Virginia has 
developed and put a stamp of approval onto. I think it is 
extremely disheartening to think that our companies are 
following through on their agreement, companies are buying them 
and installing them, and for them to come in and raise a 
question for the viability I think presents a real conundrum 
for a lot of our West Virginia mining companies.
    So I would just like to say that I share his concern on 
that. I don't really have a formal question on that.
    I have two other little questions. The GAO report mentioned 
that NIOSH and MSHA don't have as good a coordinating 
relationship and need to build a memorandum of understanding. 
Certainly in terms of speed, of getting good results, this is 
something that we should move forward on; and I would like to 
ask Mr. Bertoni and Mr. Stickler, any kind of views on that?
    Mr. Bertoni. Our position is that they form a coordinating 
mechanism like an MOU, is the way it should be proceeding.
    I think in talking about a couple of these I should say 
high-stakes technology issues today, the rescue chambers and 
some other things that we talked about, I think there is 
opportunity here for them to work together, to be in early, not 
to wait for the outside parameters of what the MSHA calls them 
to do to reach some final decisions for analysis, but, in many 
cases, do some interim analyses, work together on an interim 
basis to meet some milestones, talk along the way so that they 
are in a better position sooner rather than later to make a 
determination on, say, rescue chambers.
    But, in general, yes, we believe that formal coordination 
MOU will go a long way towards ensuring that they coordinate at 
least going out into the future years, which is going to be 
substantial retirements and turnover in both these agencies 
over the next several years.
    Right now, coordination is okay. It works in many respects. 
But it is built on long-standing professional relationships 
that have built up over the years in units in MSHA, in NIOSH; 
and if those folks were to leave and retire, a more formal 
agreement with an MOU that specifies who will do what, what are 
the areas of authority, where are the areas where they overlap, 
what are the demarcations, they are going to be in a better 
position to come up with the best products and the best safety 
standards going forward.
    Mrs. Capito. Okay, if I could just ask one more question, 
Mr. Chairman; and this is one I spoke with the Sago families 
about just briefly.
    I said, if you could be up here and ask one question, what 
would you ask? And this is going to come as no surprise, I 
don't think, to anybody on the panel. But their biggest 
frustration, and I think it is a frustration shared by a lot of 
us here, is why does everything move so slowly? Why are 
decisions not made more quickly? Why are regulations that are 
put into place not enforced more rapidly or with more teeth?
    I suppose, in my opinion, there is probably not a real 
rational explanation for that. I mean, we can all say, well, 
that is the way government works, and the wheels of government 
turn slowly. But for us in West Virginia who are all mining 
families, even if we don't have somebody who mines every day, a 
slow response is an inefficient response; and in our view, at 
some points, it is a hurtful response.
    So I would give Mr. Stickler--obviously, MSHA is where we 
are looking at this--what would you say to the families? Why do 
things move so slowly?
    Mr. Stickler. If I could have just a moment, please, to go 
back to your previous question as far as the cooperation and 
working relationship between MSHA and NIOSH.
    I know that we have a very cooperative working relationship 
and a teamwork between MSHA employees and NIOSH employees. Many 
of our employees participate in work groups with NIOSH, working 
together on trying to solve some of the same problems and 
address the same issues.
    I have known Dr. Coburn for years. He is a personal friend. 
I think we have a very good relationship. I have met with NIOSH 
several times. He has been down to MSHA. I have been to the 
Pittsburgh research centers for various meetings. We are 
working on a memorandum that--an MOU that would memorialize the 
good relationship that we currently have to preserve that for 
the future.
    As far as moving quicker on items, I would have to say that 
a big part of the focus is on quality instead of quantity. We 
want to make sure that we get it right; and the process also 
includes involvement, participation, comments from outside 
groups.
    When we are in the deliberative process, we travel across 
the country. We have meetings at key locations, located in 
mining areas that have input from miners and labor and 
industry; and we respond to all of the comments and concerns 
that we get.
    That is part of why the process does get extended and takes 
a considerable amount of time, is it is an open process, it is 
transparent, it provides participation for all the 
stakeholders; and, at the end of the day, it ensures quality to 
make sure that we get it right.
    Mrs. Capito. I thank you very much.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman; and thank you all for 
waiting while we had our votes. I just wanted to talk, if I 
could, for a moment.
    In my congressional district, I have eight mines in the 
southern part of my district, west central Illinois. I would 
like to ask a couple questions about limiting fire on the 
conveyor belts and address them to Mr. Stickler.
    As we know, after the Aracoma Alma accident, the conveyor 
belts can catch fire. Years ago, the National Institute For 
Occupational Safety and Health recommended that the belts 
themselves be made more flame resistant. In fact, the current 
standard--in picking up on what my colleagues said in terms of 
moving slow--the current standard is 52 years old.
    Before your arrival, the Bush administration stopped that 
rulemaking that would have updated the standard. Now we have a 
task force that is studying this thing yet again. My question 
is, why can't that rulemaking be restarted now and a standard 
issue immediately? I don't understand what the delay has been. 
And this is, again, a standard, as I say, that is 52 years old.
    Mr. Stickler. With regard to the Aracoma accident, the fact 
that the belt that was used in it was fire resistant, what 
caused that accident and the loss of life was not the belts 
being fire resistant.
    The key thing--we cited 25 contributory violations in the 
law that contributed to that accident and the death of the 
miners. The one that was most key is the fact that the 
ventilation controls, the stoppings that separated the belt 
conveyor from the fresh air escapeway, two of those stoppings 
had been removed. So when the fire was in the belt entry, the 
smoke products and combustion went into the fresh air 
escapeway. Had those two stoppings been in place and if 
everything else had been the same at that mine, the other 24 
contributory violations still existed, and the miners would 
have been able to evacuate because there is no smoke in their 
intake escapeway.
    Mr. Hare. I understand that. I guess what my question is--
we have a standard that is 52 years old and now your agency has 
a task force that is going to study this problem again; and my 
question to you again is why are we still waiting? Why can't 
the rulemaking be restarted now and the standard issued 
immediately for this, irregardless of if this is a danger point 
and this can cause explosions or can cause people to die or to 
become injured in a mine? Why do we have a standard 52 years 
old that we are not updating and reinstituting a new standard 
on?
    Mr. Stickler. Well, Congress provided for the technical 
study panel to study the use of belt air interface and also the 
fire-resistant properties of conveyor belts. This panel was--
the charter was published in the Federal Register in December. 
They have already--they had their first meeting in January, 
their second meeting in March. They are meeting today in Salt 
Lake City, Utah. Their next meeting is in Alabama. They are 
doing extensive research to determine what would be the proper 
standards for fire-resistant conveyor belts.
    Now for us to move forward instead of waiting for their 
report, we would have to do the same research to gather the 
same data to make the same evaluation. At this stage, I think 
is important that we allow the technical study panel that 
Congress provided for, let them do their job. When we get that 
information, then we will proceed accordingly.
    Mr. Hare. Do you know approximately when that will be?
    Mr. Stickler. Their report is due to be finalized by the 
end of this year.
    Mr. Hare. I would hope that it wouldn't take any longer 
than that. Because I think, clearly, after waiting 52 years for 
a new standard, I don't think we can wait much longer.
    Just another question regarding belt air. Thanks to the 
leadership of Congressman Rahall, we know the practice of belt 
air can increase the dangers of miners to conveyor belt fire. 
Before your arrival, the administration made it easier for mine 
operators to use the approach. Do you have the authority right 
now to act to limit this practice?
    Mr. Stickler. We have the authority. But, again, I think 
the technical study panel that Congress provided for, that is 
the second thing they are looking at besides the fire-resistant 
property, is the use of belt air interface; and they will 
finish their report at the end of this year.
    I trust that their recommendations will address this issue 
properly; and my recommendation is, if we allow that process to 
proceed--and this is a panel that is comprised of six very 
skilled health and safety professionals. Two members were 
appointed by the Department of Labor, two by the Department of 
Health and Human Services and two by Congress. Many of these 
individuals are professors of mining engineering at our primary 
engineering schools across the country, and I trust that the 
work that they are doing will provide us the information we 
need to determine the proper and most protective standards for 
the use of belt air and also fire-resistant belts.
    Mr. Hare. Well, my time has expired, but let me just 
suggest to you, Mr. Stickler, that I wouldn't wait too long for 
this panel to get back. We have a lot of people in the mines. 
This is a dangerous situation for people. I don't want to have 
another hearing on why we have lost more people in the mines 
while we are waiting for a commission to get back by the end of 
the year. I would think if you have the power to do it, my 
recommendation--my strong recommendation--would be to exercise 
your authority and proceed with it.
    I would yield back.
    Mr. Stickler. Well, if I could, sir, I will just comment.
    The authority I would have would be through the process of 
implementing a new rule; and, as you know, that takes 
considerable time. The panel will conclude their study by the 
end of this year, and we will proceed accordingly.
    Chairman Miller. Thank you.
    Mr. Davis.
    Mr. Davis of Tennessee. I would like to thank the chairman 
and ranking member for holding this hearing today. I appreciate 
the seriousness and scope of this hearing.
    My question is primarily for Mr. Stickler, but anyone can 
respond.
    This week, I received a letter from an outstanding company 
from my district that has spent thousands of dollars in 
preparing a safety plan and enforcing that plan. The company 
which performs only surface mining has asked me for guidance. 
They have given me some examples that are problematic. Please 
allow me to read a few lines from their letter.
    Quote, one mission inspector has tried to issue a citation 
to a very large operator because the chairs provided for 
employees had only four legs instead of five and the inspector 
alleges that four-legged chairs tip over easily. The same 
inspector walks through the operator location and pulls the 
trash from every trash container and leaves the trash on the 
floor. He has stated on numerous occasions that he has looked 
for items that spontaneously combust such as tubes of grease. I 
will admit the oily rags, that will spontaneously combust, but 
I have never seen or heard of a tube of grease doing this, and 
if such a hazard did exist I am curious as to why the standard 
packaging for grease is made of cardboard. End quote.
    Mr. Stickler, is there a manual or set of standards that 
outline the steps required for miner safety? Or is it left up 
to individual inspectors to determine if four-legged chairs or 
finding trash in trash cans are the threat to health and safety 
of miners? Are we spending more time on filling out reports and 
finding ``gotcha'' moments than we are in actually carrying out 
the mission of MSHA, which is to protect the miners?
    Mr. Stickler. Yes, sir. We do have the inspection handbook 
for our inspectors. It is very detailed.
    To go back to the specific case that you mentioned, we 
don't have standards for how many legs are on chairs. I would 
be happy to follow up if you would provide me enough detail 
that I could follow up on that.
    But I would also like to say that we have hundreds of men 
and women that work for MSHA that work very hard every day to 
see that the right thing is done for safety. Many of these 
individuals go into coal mines that aren't as high as this 
table and crawl on their hands and knees in mud and water and 
hazardous conditions, that are dedicated to work very hard 
every day to protect the health and safety of miners. And the 
image that you projected there, I can't conceive that that is 
something that exists within our organization.
    Mr. Davis of Tennessee. I certainly appreciate you taking a 
look at this, and I will have my staff provide you with the 
letter that I quoted.
    I certainly appreciate the inspectors going out and doing 
their jobs. I hope we just don't put so much pressure through 
the media and through Congress on inspectors to the point that 
they try to find things just to be able to build a report. That 
doesn't do mine safety any good.
    What we need to do is to make sure that we have that set of 
standards, follow those standards. That way, both the employer 
and the inspector knows exactly what they are looking for.
    I appreciate your willingness to work on this for me. Thank 
you.
    Thank you.
    Chairman Miller. Thank you, Mr. Davis.
    Mr. Stickler, if I might, I just have one quick question 
and we will wrap this up. You have all been very patient with 
your time.
    In your testimony, I think you said about half of the 
emergency response plans have been fully approved. I assume 
that means half haven't been. What is the status of those that 
have not yet been approved and what is the timetable for that?
    Mr. Stickler. Well, the vast majority of plans have been 
partially approved. And we say ``partially approved'' because 
the ones that have not been fully approved, it is primarily 
because of not providing for the 96 hours of breathable air. As 
you know, we put out guidance for that in February of this 
year. I think the last number I saw was roughly 55 percent of 
the plans--emergency response plans now have been approved, 
including the 96 hours of breathable air. So operators are 
starting to respond to the requirement for breathable air.
    There is one other issue that is a little bit of a problem, 
maybe a handful of operators in regard to the size of the zones 
for the pre-accident monitoring and tracking of miners.
    As you recall, the MINER Act provides for pre-accident 
tracking so that we know where miners would be located if there 
is an explosion or fire. And most operators are doing that 
through the process of communications where they are tracking--
where you go from one area of the mine to the other, that is 
recorded.
    There is an issue with just a handful of operators on the 
size of those zones, and that process between the district 
managers and the operators is such that we notify them that it 
is unacceptable and give them time then to modify their plan. 
But particularly in the last month or so since we have come out 
with the guidance on breathable air, there has been very rapid 
progress in increasing the percentage of plans that are fully 
approved.
    Chairman Miller. So you would expect that they would be in 
compliance within 30 days, 60 days, 90 days?
    Mr. Stickler. I am reluctant to give you a time period.
    Also, I would point out that the MINER Act also provides a 
mechanism, once we have worked with the operators through 
informing them that what they have submitted is not acceptable, 
given them a chance to resubmit, once we have gone through that 
back and forth, and the next stop is to issue a violation, that 
then will go to the Federal Mine Health and Safety Review 
Commission, and a judge then will determine whether or not the 
operator's plan was sufficient or whether MSHA----
    Chairman Miller. You don't expect to go through that 
process for 45 percent of the plans do you?
    Mr. Stickler. Absolutely not. I would just take a handful.
    Chairman Miller. I understand if somebody wants to 
challenge it, but 55 percent of them have complied, as you have 
pointed out. So I am just trying to determine what is going on 
with the other half here. You know, it is kind of a basic 
benchmark in terms of the MINER Act.
    Mr. Stickler. Right. What is going on with the other half 
is the review process is continuing. This is handled by the 
district managers. We have 11 districts across the country, and 
they have specialists that review these plans, identify the 
deficiencies, write deficiency letters back to the operator, 
and that is a back-and-forth process.
    Chairman Miller. Do we have a list of those who have not 
complied? Is there a list of those who have not fully been 
approved?
    Mr. Stickler. I don't have that list with me. I am sure--
that is one of the things we are doing, is we are tracking 
regularly all the components of the MINER Act. Every 
requirement of the MINER Act is being tracked by each district. 
That is being reported in to the headquarters here in 
Arlington.
    We are monitoring the number of compliance for all the 
specific items, whether it be a multi-gas detector that we put 
in the emergency temporary standard and the final mine 
evacuation rule that was finalized in December. But there is 
about 15 items that we are tracking on a regular basis. We have 
a monthly report that shows us the status of each one of those 
specific requirements of the MINER Act.
    Chairman Miller. So, theoretically, a printout is available 
of their progress or their lack of progress?
    Mr. Stickler. Yeah, we could provide that.
    Chairman Miller. That would be helpful.
    Congressman Kucinich, did you have a question?
    Mr. Kucinich. Yes. To Mr. Stickler, the question arises, 
with respect to enforcement, have you ever shut down a mine for 
violations of health and safety?
    Mr. Stickler. Well, MSHA's law requires that the area 
affected by a violation, if it is an imminent danger, it would 
be shut down immediately. If it is a situation where an 
operator has been issued a citation and they have failed to 
abate that citation or violation, that affected area can be 
shut down immediately. It depends on the nature of the 
violation. There are some----
    Mr. Kucinich. I understand that is the law. But my question 
was, have you ever shut down a mine for a safety or a health 
violation?
    Mr. Stickler. Well, I am sure MSHA has. When you have a 
violation that would affect the entire mine, such as methane 
accumulation or improper ventilation, that withdrawal order 
that MSHA issues would affect the entire mine.
    Mr. Kucinich. Have there been mines shut down recently for 
health or safety violations?
    Mr. Stickler. I am sure there have been mines shut down.
    Mr. Kucinich. Anyone else on the panel that knows the 
answer to that?
    Mr. McAteer. Mr. Kucinich, the process--there are about a 
thousand mines a year, on average, that have a shutdown order 
on part or all of that mine to be shut down by the agency; and 
that is year in year out. That is in addition to if there is an 
imminent danger. So that does happen. But I can't say the last 
year when it has.
    Mr. Kucinich. Yeah, Mr. Chairman, I think it would be 
interesting for this committee to know how serious the 
administration has been on enforcement, how far they go to 
ensure compliance by raising the issue. Thank you.
    Chairman Miller. Thank you, Mr. Kucinich.
    If you could help us get that information, Mr. Stickler, 
that would be helpful.
    [The information follows:]
    
    
    
    
    
    
    Chairman Miller. Again, let me thank you again for your 
cooperation this morning with the committee. I think clearly 
you can hear the frustration from members of the committee 
about the urgency of this matter. I think none of us want to be 
on watch when again another group of miners are injured or lose 
their lives in these accidents.
    It was the intent I think of the authors of the MINER Act 
that this would increase the margins of safety, and I think 
that is why there is so much concern about the rate of 
implementation around this Act. I think when the authors wrote 
these emergency response plans, I assume that they believed 
that the plans would be in effect in the near future. And, you 
know, this process of negotiation in the regions, when this 
will come to completion, they will have an approved plan, 
appears it can take a very long time in different regions. I am 
very worried about that time frame, and I think that the other 
Members of Congress are, too, if that continues to drain on. 
There ought to be a point at which it cannot go beyond.
    But, again, this committee plans to stay engaged in this 
until we get it right; and I hope that we can continue to call 
on you for your expertise. But I think it is clear that the 
Members of Congress and certainly those from the most heavily 
impacted areas are looking for a different tone, a different 
timetable, a different sense of urgency than we have seen in 
the past. Because many of us believe that that led to the loss 
of life and to the actions that took place, and we don't want a 
repeat of that.
    Thank you again very much, and my apologies for all of the 
interruptions.
    The committee will stand adjourned.
    [The prepared statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 
                     From the State of Pennsylvania

    Thank you, Mr. Chairman, for holding this hearing on how effective 
the Mine Safety and Health Administrations safety and health programs 
are.
    I would like to extend a warm welcome to all of the witnesses. I 
appreciate the time you took to be here today and look forward to your 
testimony.
    The tragedies at the Sago Mine in West Virginia and the Quecreek 
Mine in Pennsylvania shed light on the need for additional safety 
measures to be implemented in mines throughout this country. To its 
credit, the 109th Congress moved quickly in passing the MINER Act to 
ensure that many of the necessary safety measures were codified in law.
    I am interested in hearing how effective MSHA has been in 
implementing provisions from the MINER Act, and whether or not these 
provisions have done enough to ensure the safety of our miners.
    Thank you again, Mr. Chairman, for holding this hearing. I yield 
back the balance of my time.
                                 ______
                                 
    [Supplemental materials submitted by Mr. McAteer follow:]
    [Attachment 1: List of rules withdrawn by MSHA follow:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    [Attachment 2: Memorandum for the file follows:]

                                                         July 2006.
To: Sago Mine Investigation File

From: Suzanne Weise & Patrick McGinley

CC: Davitt McAteer

RE: Thinking Out-Side-The Box: The Proposed Blended Duty of Care and 
        Safety Case Model for Regulation in the Coal Mining Industry of 
        Australia

                            I. INTRODUCTION

    New regulatory and administrative measures have been proposed to 
address perceived shortcomings of the existing statutory and regulatory 
mine safety regime subsequent to the Sago Mine explosion. Some coal 
industry officials, regulators and other interested parties have been 
critical of these proposals on the ground that broad, generally 
applicable regulatory mandates, fail to take into account mine-specific 
circumstances and features. Such criticism asserts that regulatory 
mandates that fail to adequately address mine-specific issues are 
likely to involve excessive cost in relation to increase in miner 
safety and that they are likely to prove inefficient and or 
ineffective.
    This assertion that mine site-specific issues should be an integral 
part of any response to the regulatory inadequacies identified in the 
wake of the Sago investigation is not necessarily in conflict with the 
regulatory proposals it criticizes. On the contrary, ``outside-the-
box'' analysis might lead to new approaches blending the general 
regulatory mandate approach of recent proposals with critics' demand 
for attention to site-specific mine characteristics. Below, this 
memorandum identifies an example of ``outside-the-box'' thinking which 
might provide the impetus for resolving concerns of critics of new mine 
safety regulatory proposals. The memo does not argue for the adoption 
of the blended duty of care/safety case regulatory model proposed for 
the coal industry in Australia. Rather, the approach of the Australian 
proposal provides and example of how creative outside-the-box thinking 
may help to resolve thorny regulatory issues which tend to be frozen by 
ossified conventional analysis.
    This Memorandum describes the generally applicable ``duty of care'' 
standard of Australian law and a proposal to append to the existing 
coal mine safety regulatory regime a ``safety case'' approach found to 
be successful when applied occupational health and safety regulation of 
other industries in Australia.\1\ Relevant to the Post-Sago search for 
ways to improve mine safety is the active involvement of mine managers 
in developing mine site-specific approaches to reduction of health and 
safety hazards.
    The following discussion describe in summary form a 2005 report and 
attendant working paper made to and for the West Australian government; 
the charge of Hopkins and Wilkinson, the reports' authors, was to 
provide advice on best practice safety regulation for the mining 
industry in that State.\2,3\

                     II. DUTY OF CARE IN AUSTRALIA

    Australia is a national federation of six States and two 
Territories. Under the Australian system of government, States and 
Territories have responsibility for enacting and enforcing laws 
relating to workplace health and safety.\4\
    Each State and Territory has a principal Occupational Health and 
Safety (OHS) Act which sets out requirements for ensuring workplace 
health and safety. These requirements spell out the duties of different 
groups of people who play a role in workplace health and safety. These 
requirements are known collectively as the ``Duty of Care.'' \5\ Duty 
of care legislation ``is often described as outcome-based, performance 
based, or goal setting legislation because of its focus on outcomes.\6\ 
This duty of care standard has roots in the common law tort of 
negligence recognized in Anglo-American jurisprudence. In Australia's 
occupational health and safety law the duty of care is a component of 
statutory regime protecting workers.\7\
    Duty of care requires employers, employees and any others who may 
have an influence on hazards in a workplace to do everything 
`reasonably practicable' to protect the health and safety of 
workers.\8\ Prior to the adoption of the duty of care approach, safety 
obligations were imposed only up to the level of the mine manager and 
no duty was imposed on mine owners.\9\
    The term `reasonably practicable' under duty of care means that the 
requirements of the law vary with the degree of risk attendant a 
particular activity or work environment which must be weighed against 
the time, trouble and cost of taking measures to control the risk.\10\ 
It allows the duty holder to choose the most efficient means for 
controlling a particular risk from the range of feasible options 
preferably in accordance with the `hierarchy of control'.\11\
    The range of options falling within the scope of `reasonably 
practicable' allows employers to meet their duty of care at the lowest 
cost and require advances in technology and knowledge to be 
incorporated when efficient to do so.\12\ The duty holder must show 
that it was not reasonably practicable to do more than what was done or 
that it has have taken `reasonable precautions and exercised due 
diligence.' \13\
    Specific rights and duties flowing from the duty of care include:
     provision and maintenance of a safe plant and systems of 
work;
     safe systems of work in connection with a plant;
     a safe working environment and adequate welfare 
facilities;
     provision of information and instruction on workplace 
hazards and supervision of employees in safe work;
     monitoring the health of employees and related records 
keeping;
     employment of qualified persons to provide health and 
safety advice; and
     monitoring conditions at the workplace.
    These rights and duties are representative of employer's specific 
duties in all Australian States and Territories.
    When workplace duty of care legislation was first adopted, there 
was some concern that ``prescription'' would be abandoned and there 
would be a move toward industry self-regulation.\14\ However, 
experience has shown that the duty of care approach to occupational 
health and safety in Australia works in conjunction with statutory 
prescription rather than as a replacement.\15\ The ``broadly stated'' 
duty of care approach is ``now widely understood'' as requiring a risk 
management approach including a process of hazard identification, risk 
assessment and risk control.\16\
    As noted above, Australia's application of duty of care doctrine to 
occupational health and safety regulation involves companies in risk 
assessments regarding specific hazards and allows employers to make 
site-specific decisions as to measures needed to control identified 
risks. Discussed below in Section III is a proposal to incorporate much 
broader opportunities for coal operators to meld a mine safety 
regulatory regime to local conditions and considerations. In the Sago 
Mine context, such an approach or a derivation thereof might allow 
proponents and critics of new regulatory mandates to find common 
ground, especially as to the issue of consideration of mine-specific 
issues.

  III. PROPOSAL TO USE ``SAFETY CASES'' FOR REGULATION OF AUSTRALIA'S 
                            MINING INDUSTRY

    Hopkins and Wilkinson provide an example of how ``thinking outside-
the-box'' might resolve difficult and contentious issues relating to 
coal mine health and safety in their working paper, Safety Case 
Regulation for the Mining Industry, prepared for the Australian 
National Research Centre for Occupational Health and Safety 
Regulation.\17\ As discussed below, Hopkins and Wilkinson's paper draws 
from the Australian experience with successful ``safety case'' regimes 
applied to major hazardous waste facilities in the State of Victoria 
and the National Offshore Petroleum Safety Authority (NOPSA).\18\ Most 
relevant to Post-Sago efforts to improve mine safety in West Virginia 
and other coal producing jurisdictions is the safety case emphasis on 
careful site specific analysis of safety and health hazards. The 
suggestion that regulation and site specific health and safety issues 
are inimical is clearly debunked by the safety case approach.
    Before discussing their proposal to blend the existing mine safety 
regime including its' broad duty of care requirements, they begin their 
discussion with the proposition that safety management systems need to 
focus on the most serious hazards while not neglecting other health and 
safety risks.\19\ They opine that major accidents are usually preceded 
by indications of trouble and that safety plans must therefore identify 
these indications and specify appropriate action to be taken when they 
occur.\20\ They explain:
    [P]lans must identify trigger levels, or events, and action 
response plans, actions to be taken in response to trigger events. For 
each hazard, there are normally several trigger levels of increasing 
seriousness, with corresponding action plans, ranging up to withdrawal 
of all personnel from the mine. Mines have therefore developed 
schedules of triggers and corresponding actions and these have become 
know as TARPs (Trigger Action Response Plans).\21\
    According to Hopkins and Wilkinson, ``TARPs are the heart and soul 
of * * * principal hazard management plans.''\22\
    The working paper notes that ``in other industries the need to 
focus on the most serious hazards and the apparent failure of previous, 
(mainly prescriptive), regulatory systems * * * led to the development 
of safety case regimes.'' \23\ These regimes require operators to:
     provide a detailed description of the hazardous facility
     identify all potential major hazards and major accident 
events
     carry out a systematic assessment of the nature of such 
events and their consequences
     put in place control systems to safeguard against such 
events
     monitor the controls to ensure that they are working
     embed this control system in a comprehensive safety 
management system.\24\
    Hopkins & Wilkinson explain how safety cases differ from duty of 
care responsibilities:
    Arguably, all this is already required by the general duty of care. 
But the crucial additional feature of a safety case regime is that it 
is a licensing regime. Operators are required to make a case to the 
regulator indicating how they intend to comply with these requirements 
(hence the term ``safety case''). Regulators must ultimately accept or 
reject the safety case.\25\
    They observe that the evaluation of safety cases may be quite time 
consuming and that complex safety cases require considerable expertise 
because of the amount of detail in complex safety cases.\26\ Further, 
Hopkins and Wilkinson point out that ``once accepted by the regulator, 
all the detail in the case is enforceable.'' \27\ Safety case regimes, 
they emphasize, ``are * * * not a retreat from prescription; it is 
simply that what is prescribed is set out in the safety case rather 
than in legislation or regulations.'' \28\ The amount of detail in a 
safety case is proportionate to the complexity of the operations at the 
site and smaller mines are likely to require a much more simplified 
safety case than large mines.\29\
    A safety case regime can be resource intensive especially where 
mines require complex safety cases. The authors emphasize that a safety 
regime must be well resourced or it would likely offer no advantages 
over and above non-safety case regimes.\30\ They also address the risk 
assessment component of safety cases and respond to criticism that such 
assessment is problematic.\31\ Hopkins and Wilkinson concede that some 
criticism of how risk assessment is applied may be accurate but not 
criticism of the safety case concept itself.\32\
    For complex facilities with complicated processes, they argue, 
there is no alternative to the use of systematic hazard and risk 
assessment methodologies. Moreover, they minimize the complexity of 
safety cases observing that:
    * * * for many risks, especially for general occupational health 
and safety risks, appropriate precautions are well known. For example 
the law generally requires certain dangerous machines to have suitable 
guarding, power takeoff shafts on tractors to be covered, ladders on 
construction sites to be secured, heavy vehicles to have efficient 
brakes and so on. In other words, the risk assessment part of the 
process of managing health and safety has already been done, and the 
standards are well known and documented. * * * [I]n these 
circumstances, it is neither necessary nor desirable to carry out a 
risk assessment from scratch. The assessment process is generally a 
narrower one of checking that the standard precautions are appropriate 
in this particular case.\33\
    Hopkins and Wilkinson also examine activities of inspector carries 
in a safety case regime and the implications these have for 
staffing.\34\ They identify the most important duty is to judge if the 
company has the leadership, staff, systems and procedures to safely 
operate the facility.\35\ ``Where there are deficiencies,'' the authors 
observe, ``the regulator must have the capability to recognize these 
and develop appropriate strategies to persuade senior staff to make 
appropriate changes.''\36\ As far as enforcement in the safety case 
setting, resort is rarely made to legal options but Hopkins and 
Wilkinson confirm that regulators are expected to take formal 
enforcement action when appropriate.\37\
    Hopkins and Wilkinson recognize the difference between safety case 
situations and the traditional role of safety inspectors to check for 
compliance with specific requirements in the legislation and 
regulations. They confirm that this type of compliance monitoring 
continues to have a place in a safety case regime has its place, 
``especially if the information obtained is used to build a picture of 
how the organization health and safety systems are operating.''\38\ 
They caution that inspectors must be cautious to ``avoid concentrating 
on minutiae and missing the bigger picture.''\39\
    The working paper also emphasizes that regulatory staff must have 
personal credibility with senior company staff to have their views 
taken seriously, so the regulatory staff must possess knowledge and 
first hand experience of the industry to be regulated.\40\
    Following these observations, the working paper proposes specific 
principles of best practices regulation of which the safety case is an 
integral part.

  IV. A BEST PRACTICES SAFETY CASE REGIME PROPOSAL FOR THE AUSTRALIAN 
                             COAL INDUSTRY

    Hopkins and Wilkinson recommend consideration of the 33 principles 
\41\ in developing a safety case regime for the mining industry. These 
principles are briefly summarized below; the full statement of 
principles appearing in the working paper is attached as Appendix.
    (1) Safety case regimes should be introduced in the mining 
industry, not as a replacement of duty of care but as an addition to it 
by requiring operators to demonstrate how they intend to fulfill their 
duty of care.\42\
    (2) Safety case requirements should apply to all mines, regardless 
of size, with the understanding that the smaller and less complex the 
mine, the simpler the safety case.\43\
    (3) Safety cases should emphasize the idea of triggers to action 
and incorporate trigger action response plans where appropriate.\44\
    (4) Safety cases in the mining industry should address all risks 
including those to occupation health.\45\
    (5) Safety cases should include a detailed consideration of fatigue 
management.\46\
    (6) Mining safety cases should not normally be required to carry 
out quantitative risk analysis.\47\
    (7) The workforce and their representatives should have the right 
to be consulted I in the development of a safety case and to raise 
concerns about a safety case after it has been accepted.\48\
    (8) The safety case regime should specify guidelines for employee 
participation.\49\
    (9) Safety cases should include provision for adequate training for 
workforce and management.\50\
    (10) The development of safety case regimes within particular 
jurisdictions should be coordinated and aligned where possible.\51\
    (11) OHS should be amalgamated into a single Act, with industry 
specific regulations and codes of practice where necessary.\52\
    (12) Prosecution can be of companies and individuals. The 
repertoire of enforcement options available to inspectorates should be 
as broad as possible, and the workforce, in particular health and 
safety representatives, should have the right to request the regulator 
to initiate an investigation with a view to enforcement action, 
including prosecution.\53\
    (13) Inspectors must carry out both announced and unannounced 
inspections.\54\
    (14) Separate statutory authorities should be established to manage 
safe case regimes in the mining industry.\55\
    (15) Regulatory staff must be paid competitive salaries in order to 
recruit and retain staff of the requisite quality.\56\
    (16) There should be a single point of contact for a site within 
the inspectorate (i.e., one person should have overall responsibility 
for the site and visits it regularly).\57\
    (17) The competency and accountability of all staff required for 
the Authority should be defined.\58\
    (18) Recruitment of staff to an Authority will need to be by open 
advertisement.\59\
    (19) A comprehensive training program will need to be developed and 
implemented as part of developing an enhanced inspectorate, including 
training in the techniques of root cause analysis (designed to identify 
the systemic causes of accidents) and evidence gathering as a prelude 
to prosecution.\60\
    (20) Inspectors should be trained both in systemic accident 
analysis and in evidence gathering, particularly concerning neglect by 
senior company officers.\61\
    (21) Inspectorates should publish reports on all significant 
accidents, using the Australian Transport Safety Bureau reports as a 
model.\62\
    (22) The size and cost of a safety Authority should not be 
determined by any historical method but should be worked out from first 
principles. The assumptions upon which size is determined should be 
transparent.\63\
    (23) Government should be aware that any proposed Authority would 
cost substantially more than the present regulator and should seriously 
consider the possibility of external funding options such as imposing 
an industry levy.\64\
    (24) One-off start up costs should be paid by the government.\65\
    (25) If the decision is to fund an Authority in part or in whole 
from industry sources, the funding arrangement should not be set up on 
a fee for service basis.\66\
    (26) A proposed Authority should have an expertise based advisory 
board which should include representatives of industry, the workforce, 
unions and government.\67\
    (27) The Authority should report to parliament, through a Minister 
to be decided by government.\68\
    (28) The Authority's ways of working, systems, procedures and 
activities should be as transparent as possible.\69\
    The authors, in concluding that the safety case system should be 
the basis for the regulation of health and safety in the Australian 
mining industry, recognize that ``best practice regulation requires the 
ability to effectively monitor and audit companies safety cases as well 
as the provision of high quality advice, encouragement and stimulation 
to the industry to improve its own performance as well as effective 
enforcement and prosecution of the (revised) law, where 
appropriate.''\70\

                             V. CONCLUSION

    As noted in the introduction to this memorandum does not argue for 
the adoption of the blended duty of care/safety case regulatory model 
proposed for the coal industry in Australia. Rather, the approach of 
the Australian proposal provides and example of how creative outside-
the-box thinking may help to resolve thorny regulatory issues which 
tend to be frozen by ossified conventional analysis.
    In light of the criticism of Post-Sago regulatory and 
administrative proposals addressing perceived shortcomings of the 
existing statutory and regulatory mine safety regime critics and 
regulatory change proponents should welcome the opportunity to review 
and critique out-side-the-box approaches identified by those outside 
the current MSHA regulatory framework. The Australian duty of care/
safety case regime has been successfully utilized in Australia to 
address workplace health and safety issues relating to hazardous waste 
and off-shore petroleum industries. Australian authorities are 
examining the safety case approach to determine its' potential 
applicability to that nations' coal mines. The safety case approach is 
one way that site-specific considerations may be given appropriate 
attention as critics of Post-Sago remedial proposals demand. At the 
very least, those critics and other interested parties should begin to 
explore new approaches to protect the health and safety of the nation's 
coal miners.
                                endnotes
    \1\ Hopkins & Wilkinson, ``Working Paper 37: Safety Case Regulation 
for the Mining Industry,'' (July 2005). (Hereafter ``Hopkins & 
Wilkinson'').
    \2\ Id. at 3. The advice was provided in the first place to a Mine 
Safety Improvement Group and formed the basis of its report to 
government, delivered in April 2005. The full report is available at: 
http://www.ministers.wa.gov.au/carpenter/docs/features/
interim%20report%20stage%201%20w%20text.pdf
    The Hopkins and Wilkinson working paper discussed herein ``aims to 
extricate the advice outlined in that report from the particular 
Western Australian context and present it in a way that is of potential 
relevance to other Australian jurisdictions. The aim, then, is to 
present a model for best practice safety regulation in the mining 
industry generally.'' Id. The report and working paper do not parallel 
traditional discussions of regulatory models that focus on regulatory 
requirements to be imposed on a regulated industry. Rather, Hopkins and 
Wilkinson go further--considering both regulatory requirements and with 
the structure of the regulator.
    \3\ Id. Wilkinson and Hopkins explain their report and work paper 
devote considerable attention to regulatory structure because of its 
importance for any government seeking to set up a best practice 
regulatory regime.
    \4\ The following is a link to the State and Territory OHS 
authorities: http://www.nohsc.gov.au/OtherRelatedSites/australiansites/
    \5\ The ``duty of care'' standard of the common law tort of 
negligence (in American Jurisdictions often referred to as the 
``reasonable person'' standard) underpins the development of 
occupational health and safety regulation in Australia as well as in 
the United Kingdom.
    \6\ Id. at 3-4, note 3, citing, N Gunningham, ``The Development 
Model for best practice regulation in the mining industry of a New 
Regulatory Model for Occupational Health and Safety in the New South 
Wales Coal Industry'', October 1999. Paper available at http://
www.minerals.nsw.gov.au/legislation?p=1696#Coal at 47.
    \7\ See generally, http://www.ascc.gov.au/OHSLegalObligations/
DutyofCare/dutycare.htm
    \8\ ``Any others'' includes contractors and those who design, 
manufacture, import, supply or install plant, equipment or materials 
used in the workplace.
    \9\ Hopkins & Wilkinson, supra note 1 at 3.
    \10\ The words ``reasonably practicable'' have been the subject of 
much judicial consideration. Three general propositions are to be 
discerned from the decided cases:
     the phrase ``reasonably practicable'' means something 
narrower than ``physically possible'' or ``feasible'';
     what is ``reasonably practicable'' is to be judged on the 
basis of what was known at the relevant time;
     to determine what is ``reasonably practicable'' it is 
necessary to balance the likelihood of the risk occurring against the 
cost, time and trouble necessary to avert that risk.
    Slivak v. Lurgi, 205 CLR 304, 322 [2001] HCA 6 (citing cases in 
footnotes 36 through 39).
    \11\ The `hierarchy of control' refers to the range of feasible 
options for managing the risk to health and safety. The hierarchy 
normally ranges over the following controls: elimination of the hazard; 
its substitution with a less harmful version; its redesign; engineering 
controls; isolation of the hazard from people at the workplace; safe 
work practices; redesigning work systems; and the use of personal 
protective equipment by people at the workplace. http://
www.nohsc.gov.au/OHSLegalObligations/DutyofCare/dutycare.htm.
    \12\ http://www.nohsc.gov.au/OHSLegalObligations/DutyofCare/
dutycare.htm
    \13\ Id.
    \14\ Hopkins & Wilkinson at 4. Black's Law Dictionary (8th ed. 
2004), defines ``prescription'' as ``[t]he act of establishing 
authoritative rules.'' The term ``prescription'' used in the Australian 
Occupational Health Safety context refers to what Americans call 
``regulatory mandates.''
    \15\ Id. at 4.
    \16\ Id.
    \17\ The National Research Centre for Occupational Health and 
Safety Regulation is a research within the regulatory institutions 
network, in the Research School of Social Sciences, at the Australian 
National University. The Center is funded by the National Occupational 
Health and Safety Commission (``NOHSC''). http://ohs.anu.edu.au
    \18\ Hopkins & Wilkinson supra, note 1 at 7. The Victorian regime 
covers about 50 major hazard sites in that state. The legislation draws 
on the national standard for the regulation of major hazards, but is 
informed by major hazard regimes in Europe and goes beyond the national 
standard in various respects. The Victorian regulator is relatively 
well-resourced. It has scrutinized and commented on safety cases in 
great detail. Like the Victorian regime, the offshore petroleum safety 
case regime, largely administered by NOPSA, has detailed regulations 
and an extensive set of guidelines about how these regulatory 
requirements can be met. Moreover, NOPSA states in its Strategic Plan 
that safety cases will be checked to ensure that they are consistent 
with ``good oil field practice.''
    \19\ They base their discussion on the Queensland Coal Mining 
Safety and Health Act of 1999, which defines a principal hazard as one 
with the potential to cause multiple fatalities and requires mine 
operators to develop individual principle hazard management plans for 
each such hazard.
    \20\ Hopkins & Wilkinson supra, note 1, at 5.
    \21\ Id.
    \22\ Id.
    \23\ Id. at 5-6.
    \24\ Id. at 6.
    \25\ Id.
    \26\ Id.
    \27\ Id.
    \28\ Id.
    \29\ Id.
    \30\ The authors find evidence for this observation in the British 
rail system's safety case regime. The U.K government's administration 
of the rail safety case regime sought to minimize the role of the 
inspectors' approval of safety cases and catastrophic train accidents 
followed. They assert that this result is ``a graphic example of what 
can happen if such a regime is introduced without the other requisite 
features of good safety case regimes, namely a regulator with the 
capacity to professionally challenge safety cases, a workforce which is 
sufficiently empowered to play an active part in the process and 
finally, a belief at the working level in both the regulated and 
regulator that the safety case is a beneficial approach.''
    \31\ Id. Such criticism includes the accusation that complex risk 
assessment methodologies (particularly where quantification is 
involved) can be difficult to understand and therefore unreliable and 
that the results of quantitative risk assessments can be ``massaged'' 
to reduce risk to an acceptable level.
    \32\ Id.
    \33\ Id. at 30.
    \34\ Id. at 8-9.
    \35\ Id. at 8.
    \36\ Id.
    \37\ Id. The authors stress that ``best practice auditing by 
inspectors is not just passive compliance monitoring; it involves 
challenge. * * * Best practice inspectors are engaged not only in 
compliance monitoring; they are also investigators. We are talking here 
of proactive investigation, not just reactive investigation which 
follows an accident or so called `near miss.' ''
    \38\ Id.
    \39\ Id.
    \40\ Id.
    \41\ Id. at 9-24. Although there are 33 principles set forth in the 
paper, only those that are relevant to our inquiry here are included in 
the text.
    \42\ Id. at 10.
    \43\ Id.
    \44\ Id.
    \45\ Id. at 11.
    \46\ Id. at 11-12.
    \47\ Id. at 11-12. Safety case regimes in process industries in 
Australia often make use of quantitative risk assessment, but the 
authors did not think this may not be appropriate in mineral extraction 
operations but did not elaborate as to why.
    \48\ Id. at 12. The authors suggest that employees should have the 
right to raise problems about a safety case which become apparent after 
it has been accepted and to call inspectors to examine issues which 
arise if necessary.
    \49\ Id.
    \50\ Id. at 12-13. The authors suggest that tier-training will be 
necessary, with the level of training determined by job requirements. 
Workers will also need intensive training in risk-management principles 
and the safety case should include a provision for such training. 
Finally, training will also be required for managers.
    \51\ Id. at 13.
    \52\ Id. at 13-14.The authors notes that the UK has adopted a 
single safety Act covering all UK industry.
    \53\ Id. at 14.The authors recognize that ``the importance of 
persona liability is that it directly affects the motivations of 
decision makers who are responsible for creating the risks, in a way 
that holding companies responsible fails to do.'' Hopkins & Wilkinson, 
supra. note 1 at 14. The authors also recognize that some jurisdictions 
provide third parties with a right to prosecute when the regulatory 
agency does not. This appears to be similar to our citizen suit 
provisions under SMCRA.
    \54\ Id. at 14-15.
    \55\ Id. at 15-16.
    \56\ Id. at 16.
    \57\ Id. at 16-18.
    \58\ Id. at 18.
    \59\ Id. at 18.
    \60\ Id. at 18-19.
    \61\ Id. at 19.
    \62\ Id. at 19. See, http://www.atsb.gov.au/publications/
investigation--reports/investigation--reports.aspx.
    \63\ Id. at 20-21.
    \64\ Id. at 21.
    \65\ Id. at 22.
    \66\ Id. at 21-22.
    \67\ Id. at 22.
    \68\ Id. at 22-23.
    \69\ Id. at 23.
    \70\ Id. at 24.
                                 ______
                                 
    [Internet address to the Aracoma Alma Mine Report follows:]

   http://www.wju.edu/aracoma/AracomaAlmaMineReport--November2006.pdf

                                 ______
                                 
    [Internet address to the Sago Mine Disaster Report 
follows:]

      http://www.wju.edu/sago/SagoMineDisasterReport--July2006.pdf

                                 ______
                                 
    [Whereupon, at 1:24 p.m., the committee was adjourned.]

                                 
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