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

      THE S-MINER ACT (H.R. 2768) AND THE MINER HEALTH ENHANCEMENT ACT OF
                                2007 (H.R. 2769)

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

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, JULY 26, 2007

                                   __________

                               Serial No. 110-59

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

                         U.S. GOVERNMENT PRINTING OFFICE

    36-731 PDF                 WASHINGTON DC:  2008
    ---------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
    DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP,
    Washington, DC 20402-0001

                        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
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    LYNN C. WOOLSEY, California, Chairwoman

    Donald M. Payne, New Jersey          Joe Wilson, South Carolina,
    Timothy H. Bishop, New York            Ranking Minority Member
    Carol Shea-Porter, New Hampshire     Tom Price, Georgia
    Phil Hare, Illinois                  John Kline, Minnesota

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on July 26, 2007....................................     1

    Statement of Members:
        Kline, Hon. John, a Representative in Congress from the State
          of Minnesota, Pittsburgh Post-Gazette newspaper article....    10
        Payne, Hon. Donald M., a Representative in Congress from the
          State of New Jersey, additional materials submitted........    46
        Wilson, Hon. Joe, ranking minority member, Subcommittee on
          Workforce Protections......................................     3
            Prepared statement of....................................     7
            Letter from academic experts in mine safety and health,
              dated July, 25, 2007...................................     4
            Additional materials submitted...........................    77
        Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
          Protections................................................     1
            Additional materials submitted for the record............   106
            Various comments submitted to the committee on S-Miner,
              as introduced..........................................   115

    Statement of Witnesses:
        O'Dell, Dennis, administrator of occupation safety and
          health, United Mine Workers of America (UMWA)..............    21
            Prepared statement of....................................    23
            Letter dated July 26, 2007, from the UMWA................    76
        Stricklin, Kevin, administrator of coal mine safety and
          health, U.S. Department of Labor...........................    13
            Prepared statement of....................................    15
        Weeks, James L., Sc.D., CIH, consultant industrial hygienist
          to the United Mine Workers of America......................    25
            Prepared statement of....................................    27
        Wright, Michael J., director of health, safety and
          environment, United Steelworkers...........................    29
            Prepared statement of....................................    31

                        THE S-MINER ACT (H.R. 2768) AND
                          THE MINER HEALTH ENHANCEMENT
                            ACT OF 2007 (H.R. 2769)

                                  ----------

                            Thursday, July 26, 2007

                         U.S. House of Representatives

                     Subcommittee on Workforce Protections

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The subcommittee met, pursuant to call, at 2:03 p.m., in
    Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
    [chairwoman of the subcommittee] presiding.
        Present: Representatives Woolsey, Payne, Bishop of New
    York, Hare, Wilson, Price, Kline, and McKeon.
        Staff present: Aaron Albright, Press Secretary; Tylease
    Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
    Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
    Senior Policy Advisor for the Subcommittee on Workforce
    Protections; Michael Gaffin, Staff Assistant, Labor; Peter
    Galvin, Senior Labor Policy Advisor; Brian Kennedy, General
    Counsel; Thomas Kiley, Communications Director; Alex Nock,
    Deputy Staff Director; Joe Novotny, Chief Clerk; Michele
    Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
    Director; Robert Borden, Minority General Counsel; Cameron
    Coursen, Minority Assistant Communications Director; 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.
        Chairwoman Woolsey [presiding]. A quorum being present, the
    hearing on the S-MINER Act, H.R. 2768, and the Miner Health
    Enhancement Act, H.R. 2769, will come to order.
        Pursuant to committee rule 12(a), any member may submit an
    opening statement in writing which will be made part of the
    permanent record.
        I now recognize myself, and I will be followed by Ranking
    Member Joe Wilson, for opening statements.
        I want to thank you all for coming to the H.R. 2768 and
    H.R. 2769 Miner Health Enhancement Act hearing today. We are
    going to have votes this afternoon, so we are not going to go
    on and on. We are going to listen to you, and then get back to
    questions and answers. I thank you for coming late in the day.
    That is not always easy to do.
        Our Republican colleagues and the mining industry requested
    this hearing, and we were happy to accommodate them because all
    members of the subcommittee are aware that we have held two
    previous hearing on this important issue, and we have heard not
    only from miners, we have heard from their families and their
    representatives, but also from MSHA and the industry.
        I have met with industry representatives myself. My staff
    has been working with the industry, MSHA and other interested
    parties looking for a consensus on this particular legislation.
    They are coming to us because the health and safety of our
    miners are much too important to ignore, and much too important
    to delay.
        I am proud to be a sponsor of H.R. 2768 and H.R. 2769 with
    Chairman Representative Miller and Representative Rahall from
    West Virginia, and many members of the subcommittee. This
    legislation makes it absolutely clear to MSHA what Congress
    expects that the agency do.
        Nearly 40 years ago, Congress passed for the first time the
    health and safety legislation for miners. While mining is
    inherently dangerous, we recognized then that there was much
    government could do to reduce fatalities due to accidents and
    work-related illnesses such as black lung.
        Things have improved over the years, but they have not
    improved enough. Recently, we had a wakeup call. In the year
    2006, there were three serious mine accidents at Sago, Aracoma
    and Darby, killing 19 miners. By the time 2006 was over, 47
    miners were killed in work-related accidents. This was over
    twice the number of miners who lost their lives just the year
    before.
        Sadly, these accidents could have been prevented had mine
    operators followed the law and had MSHA vigorously enforced the
    law in its own regulations.
        Congress did act swiftly in 2006 by passing the MINER Act.
    But 1\1/2\ years later, MSHA has not done much to implement the
    mandates of that law. The miners' widows who testified before
    the full committee this spring made that very clear to us. They
    pointed out the lack of essential improvements yet to be made
    at their mines.
        And Cecil Roberts, president of the United Mine Workers,
    also gave us a sober assessment. He testified, and I am quoting
    him, ``The reality is that if Sago, Alma or Darby happened
    today, the results would very likely be the same. The men who
    should have escaped those tragedies over a year still could not
    do so today because very little progress has been made.''
        The bills that we are examining today put teeth into the
    MINER Act by tightening and supplementing current law with
    regard to detailed emergency response plans, the rescue and
    recovery incident investigation authority of MSHA, and
    penalties for those owners who break the law. But the MINER Act
    when it was passed in 2006 didn't go far enough to provide for
    the health and safety of miners, and we knew we would have to
    do more.
        These additional issues were more fully explored at the
    hearings the chairman held earlier this spring. For example,
    miners and miners' widows told us that miners are afraid to
    complain about unsafe conditions because they don't want to
    lose their jobs and they don't want to be blacklisted.
        In mining areas in West Virginia and Kentucky and other
    states, coal is king and we know that. If a miner loses his
    job, he loses the ability to make a living in his very own
    community. So this legislation also establishes an independent
    Office of Ombudsman to ensure proper attention to miner
    complaints of unsafe conditions, and to protect whistleblowers
    from retaliation.
        In addition, we heard testimony that black lung disease is
    on the rise, and is showing up in even younger workers. We
    thought we were on the way to eradicating this disabling and
    often fatal disease, since black lung is entirely preventable
    if coal mine dust is properly controlled. Other countries have
    managed to do just that.
        Obviously, we have to get a handle on this immediately.
    Today's bills revise critical health standards to respond to
    this alarming rise in black lung, and require MSHA to adopt the
    lower exposure limit recommended by the NIOSH.
        The S-MINER Act and the Miner Health Enhancement Act are
    critical to protect our miners and this hearing is very
    important. We have a very distinguished and knowledgeable panel
    of witnesses.
        And I am honored that all four of you are here. I look
    forward to your elaborating on these very important bills. I
    look forward to hearing your testimony.
        Now, I yield to the ranking member, Mr. Wilson.
        Mr. Wilson. Thank you.
        Madam Chairwoman, as we mark the first anniversary of the
    landmark MINER Act, thank you for convening this hearing on the
    legislative outlook for additional mine safety legislation in
    the 110th Congress.
        Last year in the wake of the tragic events at Sago, Alma
    and Darby, Congress and the president enacted the most
    comprehensive overhaul of mine safety laws in a generation. The
    MINER Act encourages better mining communications, technology,
    more modern safety practices inside U.S. mines, and the
    improved enforcement of current mine safety laws.
        The bill passed the Senate without a single vote in
    opposition. It sailed through the House with only token
    opposition, and enjoyed broad support from both labor and
    industry, a true rarity in anyone's estimation.
        Earlier this year in a full committee hearing, we learned
    that the Mine Safety and Health Administration, or MSHA, is on
    track to implementing each and every congressional mandate
    under the law, and throughout 2007 we have seen our nation's
    mines return to the more typical safety trend we have seen
    throughout this decade: fewer accidents, fewer injuries, and
    most importantly, fewer fatalities.
        As we begin consideration of what steps to take next, it is
    important that we have a fuller grasp of just what impact the
    MINER Act currently is having and will have in the coming
    years. The concern that new legislation may disrupt or distract
    from the implementation of last year's reforms is not an
    unfounded one.
        In fact, it is reflected in a letter sent just yesterday by
    nearly a dozen mine safety experts and academics to Chairman
    Miller and Ranking Member McKeon. I am hoping to gain
    perspectives on this concern today.
        Specifically, this letter raised the concerns with new
    legislation, writing, ``The intense workload on mine
    management, including safety professionals and ultimately the
    miners who have to do the downstream MINER Act-related work, is
    too great at this time to contemplate further legislation.''
        Madam Chairman, I ask unanimous consent that this letter be
    entered into the record.
        Chairwoman Woolsey. Without objection.
        [The letter follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Wilson. Thank you.
        Furthermore, Madam Chairwoman, I have serious concerns that
    the proposed legislation could in fact undermine the MINER Act
    in some key ways. For example, the MINER Act created an expert
    panel to weigh the current impact and future use of belt air
    inside mines.
        As a matter of fact, one of today's witnesses, Dr. James
    Weeks, sits on this panel. The proposed legislation before us,
    however, will ban belt air altogether, not even taking into
    account the expert opinions and future recommendations of Dr.
    Weeks and his panel of colleagues, which I find deeply
    troubling.
        It is also almost always a bad idea for Congress to mistake
    itself as experts, when in fact the real experts are already
    dealing with the matter and, indeed, this instance is no
    exception. Speaking of experts, Madam Chairwoman, I would be
    remiss if I did not raise a point I raised to committee
    Democrats earlier this week.
        Because the majority explicitly refused to invite the chief
    federal mining regulatory agency, MSHA, to testify during this
    legislative hearing, my Republican colleagues and I did so, as
    it is imperative to receive the agency's input on the potential
    ramifications of a second mine safety bill in less than a year.
        The point of a legislative hearing is to gather input from
    as many impacted stakeholders as possible, and heed their
    advice prior to acting on the bill. Not allowing one of those
    stakeholders to have a seat at the table not only defeats the
    purpose of the hearing, but it also raises serious questions
    about the legislation at hand, most notably: what are the
    supporters trying to hide?
        Indeed, these supporters indicate MSHA has testified before
    our committee earlier this year, which is true. But the fact
    is, that was weeks before H.R. 2768 and H.R. 2769 were
    introduced. Because committee Republicans invited a stakeholder
    typically invited by the majority through the course of
    standard practice, another stakeholder does not have a seat at
    today's table.
        Aside from MSHA, no group is more impacted by the new
    mandates than the mining industry itself. Because of the
    majority's insistence on limiting today's panel to three union-
    affiliated witnesses and one regulatory witness, there is no
    industry representative to provide input and, most critically,
    answers to our questions.
        Looking out in today's audience, I see a representative
    from the mining industry, Mr. Bruce Watzman from the National
    Mining Association. I had served on the mining council in South
    Carolina, and I know the Mining Association was very helpful in
    giving us broad information. Mr. Watzman testified before our
    panel this year as well. But similar to MSHA's testimony, that
    was weeks before the new mine safety legislation was
    introduced.
        Like the three-person labor representation and MSHA's
    representative on today's panel, this stakeholder has the right
    to be heard. Indeed, our subcommittee has the responsibility to
    hear from him and ask him difficult questions about the far-
    reaching legislation before us.
        For this reason, Madam Chairwoman, I now move that the
    subcommittee call Mr. Watzman as a witness to testify and
    answer any questions with respect to H.R. 2768 and H.R. 2769
    during today's hearing.
        [The prepared statement of Mr. Wilson follows:]

       Prepared Statement of Hon. Joe Wilson, Ranking Republican Member,
                     Subcommittee on Workforce Protections

        Madam Chairwoman, as we mark the first anniversary of the landmark
    MINER Act, thank you for convening this hearing on the legislative
    outlook for additional mine safety legislation in the 110th Congress.
    Last year, in the wake of the tragic events at Sago, Alma, and Aracoma,
    Congress and the President enacted the most comprehensive overhaul of
    mine safety laws in a generation.
        The MINER Act encourages better mining communications technology,
    more modern safety practices inside U.S. mines, and improved
    enforcement of current mine safety laws. The bill passed the Senate
    without a single vote in opposition, sailed through the House with only
    token opposition, and enjoyed broad support from both labor and
    industry--a true rarity, in anyone's estimation. Earlier this year, at
    a full committee hearing, we learned that the Mine Safety and Health
    Administration--or MSHA--is on track in implementing each and every
    congressional mandate under the law, and throughout 2007, we have seen
    our nation's mines return to the more typical safety trend we have seen
    throughout this decade--fewer accidents, fewer injuries, and most
    importantly, fewer fatalities.
        As we begin consideration of what steps to take next, it is
    important that we have a fuller grasp of just what impact the MINER Act
    currently is having and will have in the coming years. The concern that
    new legislation may disrupt or distract from the implementation of last
    year's reforms is not an unfounded one. In fact, it is reflected in a
    letter sent just yesterday by nearly a dozen mine safety experts and
    academics to Chairman Miller and Ranking Member McKeon, and I'm hoping
    to gain perspectives on this concern today.
        Specifically, this letter raised concerns with new legislation,
    writing--``The intense workload on mine management, including safety
    professionals, and ultimately the miners who have to do the downstream
    MINER Act-related work is too great at this time to contemplate further
    legislation''. Madam Chairwoman, I ask unanimous consent that this
    letter be entered into the record.
        Furthermore, Madam Chairwoman, I have serious concerns that the
    proposed legislation could--in fact--undermine the MINER Act in some
    key ways. For example, the MINER Act created an expert panel to weigh
    the current impact and future use of belt air inside mines. As a matter
    of fact, one of today's witnesses, Dr. Weeks, sits on this panel. The
    proposed legislation before us, however, will ban belt air altogether,
    not even taking into account the expert opinions and future
    recommendations of Dr. Weeks and his panel colleagues, which I find to
    be deeply troubling. It is almost always a bad idea for Congress to
    mistake itself with experts when--in fact--the real experts are already
    dealing with a matter, and, indeed, this instance is no exception.
        Speaking of experts, Madam Chairwoman, I would be remiss if I did
    not raise a point I raised to Committee Democrats earlier this week.
    Because the Majority explicitly refused to invite the chief federal
    mining regulatory agency--MSHA--to testify during this legislative
    hearing, my Republican colleagues and I did so, as it is imperative to
    receive the agency's input on the potential ramifications of a second
    mine safety bill in less than a year. The point of a legislative
    hearing is to gather input from as many impacted stakeholders as
    possible and heed their advice prior to acting on the bill. Not
    allowing one of those stakeholders to have a seat at the table not only
    defeats the purpose of the hearing, but it also raises serious
    questions about the legislation at hand--most notably, ``what are its
    supporters trying to hide?'' Indeed, these supporters indicate that
    MSHA has testified before our Committee earlier this year, which is
    true. But the fact is, that was weeks before both H.R. 2768 and H.R.
    2769 were introduced.
        Because Committee Republicans invited a stakeholder typically
    invited by the Majority through the course of standard practice,
    another stakeholder does not have a seat at today's table. Aside from
    MSHA, no group is more impacted by the new mandates more than the
    mining industry itself. And because of the Majority's insistence on
    limiting today's panel to three union-affiliated witnesses and one
    regulatory witness, there is no industry representative to provide
    input and, most critically, answer our questions.
        Looking out into today's audience, I see a representative from the
    mining industry--Mr. Bruce Watzman from the National Mining
    Association. Mr. Watzman testified before our panel this year as well,
    but--similar to MSHA's testimony--that was weeks before the new mine
    safety legislation was introduced. Like the three-person labor
    representation and MSHA's representative on today's panel, this
    stakeholder has the right to be heard. And indeed, our subcommittee has
    the responsibility to hear from him and ask him difficult questions
    about the far-reaching legislation before us.
        For this reason, Madam Chairwoman, I now move that the Subcommittee
    call Mr. Watzman as a witness to testify and answer questions with
    respect to H.R. 2768 and H.R. 2769 during today's hearing.
                                     ______

        Chairwoman Woolsey. Well, thank you, Mr. Wilson. I will
    respectfully deny your request.
        Mr. Kline. Madam Chair? Parliamentary inquiry.
        It seems to me that the ranking member's motion is entirely
    germane. Could I ask under what rule of the House, what
    authority you can deny unilaterally such a motion?
        Chairwoman Woolsey. Well, as the chair of this committee
    and as our precedent has in the past, if we have four
    witnesses, one is the minority party and the other three are
    the majority party. If we had had four and two, it would have
    been different.
        But I would like to point out that the industry
    representative has been here before us. He has certainly been
    questioned. We are open and hope to hear that we will get
    written questions and he will receive written responses.
        Mr. Kline. Thank you, Madam Chair. I don't believe that was
    the answer to the parliamentary inquiry.
        Chairwoman Woolsey. Yes, I----
        Mr. Kline. As I stated----
        Chairwoman Woolsey. Excuse me, this is my time.
        Mr. Kline. He was here before the bills were introduced.
        Chairwoman Woolsey. You are talking on my time. I either
    yield to you or I don't.
        Mr. Kline. Madam Chair, was there an answer to the
    parliamentary inquiry?
        Chairwoman Woolsey. Gentlemen, I have made my decision. I
    made it in writing. I didn't want to set something up. If we
    need more hearings, we will have more hearings, but today's
    hearing is three to one, and you chose your representative, and
    I thank you very much.
        Mr. Kline. Madam Chairman, may I strike the last word on
    the motion?
        Chairwoman Woolsey. Mr. Kline?
        Mr. Kline. Thank you, Madam Chair.
        I think the point here is that we don't have a full panel
    with all stakeholders represented. I understand that Mr. Wilson
    wrote a letter asking that MSHA be invited. You did respond.
    MSHA was not invited. The Republicans chose to make sure that
    the agency was here as a witness, but that meant that one of
    the key stakeholders is not here.
        Together, we essentially have three union representatives
    before the subcommittee this afternoon. That is despite the
    fact that according to the Energy Information Association,
    unions represent approximately 25 percent of the mine workers
    in this country today. Claiming that we are even representing a
    majority of the coal miners today is not accurate.
        Members of the National Mining Association will be the ones
    ultimately responsible for ensuring that any requirement we
    consider is implemented properly. Given the success of last
    year's MINER Act, when all the stakeholders had input, it is
    only responsible for us to again ensure that all stakeholders
    have input today.
        Agreement on the front end guarantees success at the
    implementation stage. Mine operators aggressively are
    implementing the MINER Act provisions, updating training
    programs, placing additional self-contained self-rescuers, and
    standing ready to put improved communications technology in the
    mines as soon as it has been approved by MSHA.
        Further, when the committee held our mining oversight
    hearings on March 20 and May 28, months ago, the two pieces of
    legislation before us had not been introduced. Any assertion
    that all the stakeholders who would be affected by H.R. 2768
    and H.R. 2769 have had the opportunity to present their
    concerns to the members of the committee is just not true.
        On July 22, that is just days ago, 2007, the Pittsburgh
    Post Gazette printed an editorial from Dr. Larry Grayson,
    professor of mining engineering and a witness before the
    committee earlier this year. Dr. Grayson discussed the MINER
    Act and concluded that, ``Congress has time to carefully
    consider additional health and safety issues with the
    participation of everyone involved, but all the stakeholders
    currently pursuing good-faith efforts should not be distracted
    from the urgent work before them.''
        I ask unanimous consent that this article be placed in the
    record, and further I would suggest that we heed the advice of
    Dr. Grayson to include all of the stakeholders at this witness
    table by supporting Mr. Wilson's motion.
        Chairwoman Woolsey. Without objection, your testimony will
    be set into the record.
        [The newspaper article referred to follows:]

               [From the Pittsburgh Post-Gazette, July 22, 2007]

                            Sunday Forum: Mine Mania

       Congress should let the dust settle from last year's mine-safety
    legislation before writing some more, suggests mining engineer R. Larry
                                    Grayson

        Few countries rely on coal more than the United States, and few
    states mine more coal than Pennsylvania. As a result, ensuring the
    safety of our coal miners, especially those who work under ground, is
    among the most challenging and urgent tasks in the American workplace.
        The urgency of the task was sadly reinforced by the mine tragedies
    early last year in the coalfields of Appalachia that claimed the lives
    of 19 miners. While coal-mining communities dealt with their grief,
    mine operators, government regulators and other safety professionals
    set about determining why those fatalities occurred in light of the
    strong safety record that had characterized U.S. mining for much of the
    past decade.
        In the months following these accidents, the entire mining
    community engaged in a multi-state effort to identify practical steps
    that should be taken to prevent such tragedies from occurring again.
    Fortunately, many of the improvements suggested for mine rescue,
    technology and training were included in a comprehensive mine-safety
    law Congress passed last summer.
        The Mine Improvement and New Emergency Response Act of 2006 was
    overwhelmingly endorsed by members of Congress from both parties and
    supported by mine-safety professionals, mine operators and miners, as
    well as by occupational health professionals and developers of safety
    technology. The new mine-safety law calls on the nation's coal mines to
    adopt certain measures immediately and other procedures and safety
    technologies as soon as needed tests are completed and new equipment
    becomes commercially available.
        But barely a year into our experience with this new law--
    implementing its many provisions, ordering and installing new safety
    equipment and training miners in new safety procedures--government
    agencies, safety professionals and the miners doing the work face an
    unexpected complication that threatens to undermine the MINER Act's
    goals. Proposals now before Congress would impose entirely new
    requirements on coal-mine operators and mine inspectors that would
    greatly disrupt the important focus on implementing the emergency
    rescue provisions of the MINER Act.
        Since passage of the MINER Act, a dramatic turnaround in mining
    fatalities in 2007 appears to have put us back on track to achieve
    significant year-over-year improvements in mine safety. But without
    full implementation of the MINER Act provisions, this year's improved
    performance could prove ephemeral.
        Further experience with the MINER Act may yet determine that
    adjustments are needed. We may learn that alternative equipment and
    training procedures could yield even better results than those now in
    use. But we do not know that yet, and we won't know until we have had
    sufficient experience with the new training procedures, equipment and
    mining practices the act requires.
        The MINER Act is not perfect, but it mandates a comprehensive range
    of practices that are making a difference. Putting all of its
    provisions in place at all of the nation's 550 underground coal mines
    has been a major undertaking. Operators are trying to implement some
    provisions before federal regulators have issued regulations for them.
    Still other provisions are disputed by federal and state regulators who
    disagree on standards and specifications.
        The result has been chaos for federal and state agencies, safety
    professionals and the miners who are trying to implement the law. For
    example, to isolate abandoned mine sections that could pose safety
    hazards, one mine's workforce has been forced to build three sets of
    seals to three different specifications.
        It surprises no one that many experienced inspectors, mine managers
    and supervisors are leaving the industry, exacerbating an already
    critical shortage of mining industry personnel.
        Complying with the MINER Act is not the only challenge the industry
    faces. The mine tragedies last year also spurred many good operators to
    take voluntary steps to improve mine safety. Many of these steps were
    recommended by an independent Mine Safety Technology and Training
    Commission that I chaired last year.
        Once adopted, these voluntary measures undoubtedly will improve the
    safety of coal miners beyond the level prescribed by the MINER Act,
    thereby setting the high standard of safety performance desired by good
    people throughout the industry. Additional legislation now would not
    only intensify the chaos in the coal fields, but also would stifle
    incentives to adopt these voluntary steps, which are essential for a
    truly new paradigm of mine safety based on prevention and risk
    management.
        Let's not jeopardize the effective implementation of the MINER Act.
    Achieving the act's goals is far too important for the protection of
    miners, especially during emergencies.
        Congress has time to carefully consider additional health and
    safety issues with the participation of everyone involved, but all of
    the stakeholders currently pursuing good-faith efforts should not be
    distracted from the urgent work before them.
                                     ______

        Mr. Kline. Thank you, Madam Chair. I yield back.
        Mr. Wilson. Parliamentary inquiry?
        Chairwoman Woolsey. Excuse me. I would like to respond.
        Unfortunately, this is the advantage of being in the
    majority. I have been on this committee for the last 15 years
    and I can tell you absolutely this is the way the precedent
    says this is how we handle this. I assure you that any written
    testimony will be taken seriously, and that if there is a need
    for another hearing, we will have another hearing.
        Mr. Wilson. I have a parliamentary inquiry.
        Chairwoman Woolsey. Yes?
        Mr. Wilson. Madam Chairwoman, my motion is in order. House
    rule 11 authorizes committees and subcommittees to call
    witnesses. My motion would direct the subcommittee to call an
    additional witness, an action that is undeniably within the
    authority of the subcommittee. In addition, my motion is timely
    offered and germane to the subject matter of today's hearing.
        Under what authority is the chair refusing to consider my
    motion? It would aid my understanding if you could refer me to
    a specific House or committee rule which permits the chair to
    refuse consideration of the motion?
        Chairwoman Woolsey. The question before us is on the motion
    of Mr. Wilson.
        Those in favor, say, ``Aye.''
        Those opposed, ``No.''
        Mr. Kline. I request a recorded vote.
        Chairwoman Woolsey. We will need to get the clerk to call
    the roll. So we are going to sit around a little while.
        The clerk will call the roll.
        The Clerk. Chairwoman Woolsey?
        Chairwoman Woolsey. No.
        The Clerk. Chairwoman Woolsey votes no.
        Mr. Payne?
        [No response.]
        Mr. Bishop?
        Mr. Bishop. No.
        The Clerk. Mr. Bishop votes no.
        Ms. Shea-Porter?
        [No response.]
        Mr. Hare?
        Mr. Hare. No.
        The Clerk. Mr. Hare votes no.
        Mr. Wilson?
        Mr. Wilson. Aye.
        The Clerk. Mr. Wilson votes aye.
        Mr. Price?
        [No response.]
        Mr. Kline?
        Mr. Kline. Aye.
        The Clerk. Mr. Kline votes aye.
        Chairwoman Woolsey. The clerk will report.
        The Clerk. Madam Chair, two members vote ``yes'' and three
    members vote ``no.''
        Chairwoman Woolsey. The motion is denied.
        Now, I would like to introduce our very distinguished panel
    of witnesses here before us this afternoon.
        And welcome you all.
        For those of you who have not testified before the
    committee, let me explain our lighting system and the 5-minute
    rule. Everyone, including members, are limited to 5 minutes of
    presentation and/or questioning. So please know that when the
    green light is illuminated, you begin to speak. When you see
    the yellow light, it means you have 1 minute remaining. When
    you see the red light, it means your time has expired and you
    need to conclude your testimony.
        Be certain to turn on your microphone, otherwise we start
    yapping at you, so that would be good. No, we are not going to
    cut you off mid-sentence, so you can finish your thoughts and
    go on with that.
        So now, it is my honor to introduce the witnesses in order
    that we will hear them.
        First, Kevin Stricklin is the administrator of Coal Mine
    Safety and Health at the Mine Safety and Health Administration.
    Having been appointed to that post in April of 2007, he has
    worked for MSHA since 1980. As administrator, Mr. Stricklin
    oversees about 11 districts, which contain about 600
    underground mines and 750 surface mines. He is a graduate
    mining engineer from the University of Pittsburgh.
        Dennis O'Dell is the administrator for occupational health
    and safety at the United Mine Workers of America. He has been
    with the UMW since 1993. He is the chair of the joint industry
    committee between the UMW and the National Bituminous Coal
    Operators Association, and was appointed to the NIOSH Mine
    Safety and Health Research Advisory Committee in 2006. He was
    educated at Fairmount State College in West Virginia and
    Westland College.
        Mr. Jim Weeks is a certified industrial hygienist who has
    worked on occupational health and safety problems in the mining
    industry since 1983. He has over 50 publications in the peer-
    reviewed scientific literature and is senior editor of
    Preventing Occupational Disease and Injury, published by the
    American Public Health Association. He has served on many
    advisory committees, including a panel of the National Academy
    of Sciences to evaluate NIOSH and their mining programs, and
    the MSHA Advisory Committee on Respirable Dust. He received an
    engineering degree from the University of California-Berkeley.
    He is a doctor of sciences that he received from the Harvard
    School of Public Health.
        Michael Wright is the director of health, safety and
    environment for the United Steelworkers, and has been with the
    steelworkers since 1977. He is a former member of the
    Department of Labor's National Advisory Committee on
    Occupational Health and Safety and is a current member of EPA's
    Clean Research Advisory Committee. He was trained as an
    industrial engineer at Cornell University, and as an industrial
    hygienist at the Harvard School of Public Health.
        I welcome all four of you.
        We will begin with you, Kevin Stricklin.

    STATEMENT OF KEVIN STRICKLIN, ADMINISTRATOR OF COAL MINE SAFETY
                  AND HEALTH, U.S. DEPARTMENT OF LABOR

        Mr. Stricklin. Thank you. Chairman Woolsey, Ranking Member
    Wilson and members of the subcommittee, I am pleased to appear
    before you today to discuss H.R. 2768, the Supplemental Mine
    Improvement and Emergency Response Act of 2007, or the S-MINER
    Act.
        As you mentioned, I have 28 years of experience in mining,
    including 27 years with MSHA, where I currently serve as the
    administrator for coal mine safety and health. I am appearing
    here today before the committee to speak to the technical
    issues noted in my statement for the record. I cannot comment
    on any policy matters regarding these bills, as the
    administration has not yet completed its comprehensive review.
        Before discussing H.R. 2768, I would like to summarize
    briefly the progress that MSHA has made over the past year in
    implementing the MINER Act. Since the president signed the
    MINER Act in June of 2006, MSHA has made remarkable progress in
    implementing its provisions, including new penalties for late
    accident notifications, new penalties for unwarrantable failure
    violations, new penalties for flagrant violations, and a final
    rule to increase civil penalty amounts.
        We have also implemented a requirement to provide
    breathable air to trapped miners; a requirement that mine
    operators purchase SCSR training units and electronically
    submit their SCSR inventories to MSHA. We have put into effect
    an emergency temporary standard on mine seals that
    significantly increases the strength standard for mine seals to
    50 psi, 120 psi, and more than 120 psi when conditions exist
    that may create pressures in excess of 120 psi.
        We have also approved 22 post-accident communication and
    tracking systems, including six new devices; initiated a final
    rule to strengthen mine evacuation practices. As of today, MSHA
    has approved over 97 percent of the emergency response plans
    for the active mines. Implementing the MINER Act is a high
    priority, along with hiring and training new inspectors and
    improving enforcement of the current regulations.
        I would now like to turn to the technical analysis of H.R.
    2768. Several of the provisions in H.R. 2768 would cause
    administrative problems for MSHA. Some will be problematic to
    implement and others would actually weaken current safety and
    health standards that we administer. A few of these concerns
    would be section 4(b) concerning underground refuge.
        Mandating refuge chambers preclude other refuge options
    that may provide greater protection to miners such as boreholes
    to the surface from locations further than 1,000 feet from the
    working face. In addition, refuge chambers may not be practical
    in all underground mining situations such as underground mines
    with coal seams no higher than the table that we are sitting
    act.
        Section 4(c)(2) concerning mine seals. The legislation
    creates an incentive for mine operators to build seals at a
    lower strength level because it requires continuous mortaring
    behind all seals no matter how strong the seals are. Although
    H.R. 2868 requires mortaring behind all seals, it does not
    prescribe what actions a mine owner should take if they find an
    explosive atmosphere behind the seal.
        The requirement that mine operators sample behind mine
    seals through boreholes that were drilled from the surface also
    raises a couple of concerns. Number one, it is not always
    feasible to sample from the surface due to geologic conditions
    and surface property rights. And number two, boreholes with
    metal casings introduce other safety hazards in the sealed
    areas that may be liberating methane.
        The notification of emergency and serious incidents, this
    section of the MINER Act sets up a two-tiered system of
    notification for mine incidents. Last year, MSHA issued
    regulations requiring mine operators to notify MSHA within 15
    minutes of an incident. If this MINER Act were to be enacted,
    it would establish emergency notification procedures that are
    less stringent than the current requirements.
        In section 6(g), accident investigations, this section of
    the MINER Act raises a number of complex policies. However,
    MSHA takes its accident investigation responsibilities very
    seriously as part of our law enforcement mandate. Our accident
    reports form the basis for our civil and criminal enforcement
    actions, and must stand along as the government's authoritative
    accident report.
        Thank you for allowing me to testify today on this
    technical review of this legislation. I look forward to
    answering any questions that you may have.
        [The statement of Mr. Stricklin follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                    ------

        Chairwoman Woolsey. Thank you, Mr. Stricklin.
        Mr. O'Dell?

    STATEMENT OF DENNIS O'DELL, ADMINISTRATOR OF OCCUPATION SAFETY
                    AND HEALTH, UNITED MINE WORKERS

        Mr. O'Dell. Madam Chair and other members of the
    subcommittee, my name is Dennis O'Dell. I am currently the
    administrator of occupational health and safety for the United
    Mine Workers of America. Probably what I am more proud of is,
    prior to this, I was a natural coal miner that worked for close
    to 20 years.
        I would like to thank you for inviting me to testify before
    you today.
        This committee has an opportunity to change history by
    better protecting our nation's most valuable resource, the
    miners. Before and after the enactment of the MINER Act, the
    union has always maintained that it was a good first step for
    protecting miner safety. But we have also consistently
    expressed that Congress needed to continue to push forward with
    improvements in mine health and safety. The job is not done.
        This legislation is more than just another step in the
    right direction. It answers many of the most pressing safety
    and health needs of our miners today. This legislation is also
    especially important because it is designed to prevent
    dangerous situations from happening in the first place. The
    enhanced enforcement authority that this legislation provides
    to the Mine Safety and Health Administration will also be
    critical if the agency embraces their new authority and
    actually uses it.
        Irresponsible coal operators need to know that MSHA is
    serious about enforcing all the laws on the books. The UMWA is
    very supportive of the new respirable dust standards included
    in this legislation. We have worked long and hard to reduce the
    incidence of black lung in coalminers. This is a preventable
    disease. It has not gone away, and we believe this legislation
    will mean a giant step forward for all coal miners.
        I sit here today and I find it hard to believe that anyone
    in the mining industry would be against providing a means to
    improve safety. I have heard comments from some industry folks
    that there is no need to act. They say that based on this
    year's fatalities, the industry is back on track. I ask you: Is
    24 mine fatalities so far this year acceptable? Do you think
    the family members of these 24 miners who have died believe
    that the industry is back on track?
        You are going to hear comments like, it is too early to
    act. I ask you to do the math. From 1977 to 2006 equals 29
    years since any major changes have been made to improve miners'
    health, safety and training, and those changes came about last
    year as the original 1969 act did, and was motivated by the
    blood of the miners. I am asking you today: Should we wait
    another 29 years and let more miners die? Or should we be, as
    this new legislation suggests, proactive and prevent more
    deaths and injuries?
        The industry may try to argue that if the use of belt air
    is eliminated, many mines won't be able to operate because they
    can't control their roof. I spent many hours searching NIOSH's
    mining page looking for research and studies to support this
    statement. I have yet to find it.
        You may hear that this legislation will harm small
    operators. I am telling you today that is nonsense. Mining laws
    need to be applied to all mine operators, large and small. It
    is time to level the playing field and give all miners the same
    level of protection no matter the size of the mine or the
    number of employees an operator has on its payroll.
        I recently read this in a newspaper article, and this
    statement was from the chair of the Mine Safety Technology and
    Training Commission that was formed after the Sago and Alma
    disasters: ``Complying with the MINER Act is not the only
    challenge the industry faces. The mine tragedies last year also
    spurred many good operators to take voluntary steps to improve
    mine safety. Many of these steps were recommended by an
    independent Mine Safety and Technology Training Commission.
    Once adopted, those voluntary measures undoubtedly will improve
    the safety of coalminers beyond the level prescribed by the
    MINER Act, therefore setting the high standard of safety
    performance desired by good people throughout the industry.
    Additional legislation now would not only intensify the chaos
    in the coal fields, but would also stifle incentives to adopt
    these voluntary steps which are essential for a truly new
    paradigm of mine safety based on prevention and risk
    management.''
        Madam Chair and members of the committee, the problem with
    this statement is that these steps and measures are on a
    voluntary basis. Some of the more reputable operators were, as
    he put it, good operators may do this. This also relies on the
    use of risk management that we are now learning is not the best
    tool provided to protect miners and should never be allowed as
    a means to replace regulatory enforcement by our state and
    federal agencies.
        Others, or the bad actors/operators, are doing nothing. The
    only way that protection will be afforded across the board is
    through enforceable regulations such as those written in the
    proposed S-MINER Act. Some say it would be a burden on the
    industry and the regulators. What about the burden of the
    miners who have and continue to die? Or the family members left
    behind because of the inadequate safety provisions and
    mandatory regulations? I propose to you that the burden that
    may be placed on coal operators does not even come close to
    that.
        In 1969--and I am wrapping up--coal operators cried to
    Congress that if they were placed under the standards
    introduced in the 1969 Mine Act, the industry would fold. Yet
    we are still here today in 2007, safer than we were in 1969.
        Madam Chair, the UMWA strongly supports this legislation.
    We commend you and Representatives Miller, Rahall and others
    for introducing it, as well as those who have signed on.
        I thank you, and I will be happy to answer questions.
        [The statement of Mr. O'Dell follows:]

    Prepared Statement of Dennis O'Dell, Administrator of Occupation Safety
                        and Health, United Mine Workers

        Madam Chair, Congressman Miller and other members of the
    Subcommittee, my name is Dennis O'Dell, Administrator of Occupational
    Health and Safety for the United Mine Workers of America (``UMWA''),
    the union that for 117 years has been an unwavering advocate for
    miners' health and safety. I would like to thank you for inviting me to
    testify before you today. This Committee has an opportunity to change
    history by better protecting our nations most valuable resource--the
    Miners.
        Congress has played a significant role in advancing miners' health
    and safety and I would like to express my appreciation to the
    leadership of this Committee and others for your efforts to further
    protect the health and safety of all miners. Your continued oversight
    is critical to ensuring miners will go home safely at the end of their
    shift.
        Shortly after the mining disasters in 2006, many from the mining
    community testified at various Senate and Congressional hearings about
    the inadequate protections for miners' health and safety. Congress
    answered and moved to enact the MINER Act. That law includes several
    important provisions aimed at helping miners after a mine emergency
    develops, such as the use of underground safety chambers, wireless
    communications, tracking devices, increased amounts of breathable air
    available to miners, and many other important safety protections.
        Before and after the enactment of the MINER Act, the Union has
    always maintained that it was a good first step to protecting miners
    safety, but we have also consistently expressed that Congress needs to
    continue to push forward with improvements in mine health and safety.
    The job is not done.
        The legislation introduced in Congress by Representatives George
    Miller (D-Calif.) and Nick Rahall (D-W.V.) is much more than just
    another step in the right direction, it answers many of the most
    pressing safety and health needs of miners.
        This legislation is especially important because it will help
    prevent dangerous situations from happening in the first place. For
    example, had the requirements in this legislation on seals, on belt
    flammability and on banning the use of ventilating the working faces of
    mines with belt air been in place prior to 2006, the tragic deaths at
    Sago and Aracoma very likely could have been prevented.
        The enhanced enforcement authority this new legislation provides
    the Mine Safety and Health Administration (MSHA) will also be critical
    to ensuring the safety and health of miners but, as always, only if the
    agency embraces that new authority and actually uses it. Irresponsible
    coal operators need to know that MSHA is serious about enforcing all
    the laws on the books and also enforcing the penalties for
    noncompliance.
        The UMWA is very supportive of the new respirable dust standards
    included in this legislation. We have worked long and hard to reduce
    the incidence of black lung in coal miners, yet have been consistently
    frustrated by government inaction at nearly every turn. This is a
    preventable disease that has not gone away, and we believe this
    legislation will mean a giant step forward for all coal miners.
        I find it hard to believe that anyone in the mining industry would
    be against providing a means to improve safety. I have heard comments
    from some industry folks that there is no need to act, they say that
    based on this years fatalities, the industry is back on track--I ask
    you, is twenty-four (24) mining fatalities (9 coal/15 M/NM) so far this
    year acceptable? Do you think the family members of these 24 miners who
    have died believe that the industry is back on track?
        You may hear comments like it is too early to act. I ask you to do
    the math, 1977 to 2006 equals 29 years since any major changes have
    been made to improve miners health safety and training, and this came
    about, as the original 1969 Act, by the blood of our miners--should we
    wait another 29 years and let more miners die, or should we be, as this
    new legislation suggests, proactive and prevent more deaths and
    injuries.
        The industry may try to argue that if the use of belt air is
    eliminated, many mines won't be able to operate because they can't
    control their roof. I spent many hours searching NIOSH's mining page
    looking for research and studies on the use of belt air. All I could
    find was reports associated with the hazards of the use of belt air
    with fires, respirable dust, smoke roll back, and escape hazards. I
    continued to search NIOSH's section on roof control problems and how to
    control all types of adverse roof conditions, I didn't see using 2
    entry systems and belt air as one of those remedies to control adverse
    roof conditions.
        You may hear that this legislation will harm small mine operators.
    Its time that Congress and mine enforcement agencies quit buying into
    such nonsense. Mining laws need to be applied to all mine operators,
    large and small. Its time to level the playing field and give all
    miners the same level of protection no matter the size of the mine or
    number of employees an operator has on their payroll.
        You will hear from those who oppose this bill complaints about the
    new seal requirements--for example, it has been reported in an
    interview that one mines workforce has been forced to build three sets
    of seals to three different specifications because there are three (3)
    different seal standards on the psi pressure strength ratings by which
    they are to build their seals. They, meaning the industry, claims this
    is causing chaos and confusion. They don't tell you they have been
    given the option to continuously monitor the areas behind these seals
    taking all of the guesswork out of it. We, meaning the UMWA and members
    from the Industry, have meet jointly with MSHA on how to address these
    seal construction and monitoring problems. It was my understanding that
    we were well on our way to resolving their concerns, and if not the
    UMWA stands committed to working with the Industry and MSHA to help
    resolve their concerns.
        I recently read in a newspaper article this statement from the
    chair of the Mine Safety Technology and Training Commission that was
    formed after the Sago and Alma disasters.
        ``Complying with the MINER Act is not the only challenge the
    industry faces. The mine tragedies last year also spurred many good
    operators to take voluntary steps to improve mine safety. Many of these
    steps were recommended by an independent Mine Safety Technology and
    Training Commission.''
        ``Once adopted, these voluntary measures undoubtedly will improve
    the safety of coal miners beyond the level prescribed by the MINER Act,
    thereby setting the high standard of safety performance desired by good
    people throughout the industry. Additional legislation now would not
    only intensify the chaos in the coal fields, but also would stifle
    incentives to adopt these voluntary steps, which are essential for a
    truly new paradigm of mine safety based on prevention and risk
    management''.
        The problem with this statement is that the steps and measures are
    on a voluntary basis by some of the more reputable, or as he put it
    ``good operators''. This also relies on the use of ``risk management''
    that we are learning is not the best tool provided to protecting
    miners, and should never be allowed as a means to replace regulatory
    enforcement by our State and Federal agencies. Others, or the bad
    actors/operators are doing nothing. The only way that protection will
    be afforded across the board is through enforceable regulations such as
    those written in the proposed S-Miner Act. Some would say it would be a
    burden on the industry and the regulators. What about the burden of the
    miners who have died over the years, and the family members who has
    been left behind because of inadequate safety provisions and mandatory
    regulations? I propose to you that the burden that may be placed on
    coal operators does not even come close to that.
        In 1969, coal operators cried to Congress, that if they were placed
    under what was then introduced as the 1969 Mine Act, the industry would
    fold. Yet we are still here in 2007, safer that we were prior to 1969.
    In a day and age when we rely on coal to supply the majority of our
    Nation's energy demands so that we are not dependant upon other
    countries resources, we need to continue to improve our safety record
    so that we can reach our goal of zero accidents and zero fatalities.
        Madam Chair, The UMWA strongly supports this legislation in all
    aspects, and commends you, Representatives Miller and Representative
    Rahall for introducing it, as well as all of those who have signed on
    as co-sponsors. Your continuing commitment to improving mine health and
    safety is greatly appreciated by coal miners and their families across
    America.
        I thank you and will be happy to try to answer any questions you
    may have.
                                     ______

        Chairwoman Woolsey. Thank you, Mr. O'Dell.
        Dr. Weeks?

         STATEMENT OF JAMES WEEKS, SAFETY AND HEALTH CONSULTANT

        Mr. Weeks. Chairman Woolsey and other members of the
    committee, my name is Jim Weeks. I am a consultant industrial
    hygienist, appearing today on behalf of the United Mine
    Workers.
        Congressman Wilson noted earlier that I am also a member of
    the technical study panel investigating the issue of the use of
    belt air that was mandated by the MINER Act. I should be clear
    today that I am appearing on behalf of the United Mine Workers
    and not in any way as a member of that technical study panel. I
    discussed this matter with the ethics officer at the Department
    of Labor and received those guidelines from him.
        Anyway, thanks for inviting me to testify, but more
    important, I wish to thank you for providing the leadership to
    improve the health and safety of miners.
        Mining, unfortunately, in the United States remains the
    most dangerous industry in the United States and worldwide.
    Mines in the U.S. remain the least safe of mines in advanced
    industrial countries. So there is lots of room for improvement.
        I wish to speak to two aspects of the proposed legislation.
    First, the revision of the dust standard from two milligrams to
    one milligram for a 10-hour work-shift; and second, use of the
    personal dust monitor, the PDM, for measuring exposure to
    respirable dust.
        Over the past 5 years, there have been several clusters of
    black lung cases identified among miners who started their
    mining careers well after the two milligram standard became
    effective. Many of these cases were of the more advanced form,
    progressive massive fibrosis, or PMF. This is a condition that
    is the most serious form. It allows for an automatic
    entitlement of benefits under the federal black lung program
    for total disability.
        Miners with PMF suffer and die early. There is no cure. We
    don't know the names of these miners. We don't know the mines
    where they worked. There is no specific event that caused these
    tragedies. But these cases occurred because of exposure to too
    much dust day after day after day over decades, in a kind of
    slow-motion tragedy.
        These cases resulted from systemic failure. Before black
    lung kills, it tortures its victims with breathlessness and
    suffering. These lives will not end with a bang, but with a
    whimper. These cases did not occur because we--and by ``we,'' I
    mean the entire industry and operators, the union, the mine
    workers, MSHA and NIOSH--these cases did not occur because we
    don't know how to control dust.
        Effective and feasible dust controls are well-known and are
    available throughout the industry. It was the failure to use
    these controls and the failure to enforce dust exposure limits,
    not the absence of knowledge that caused these cases.
        In 1995, NIOSH recommended that the dust standard be
    reduced from two milligrams for a work-shift to one milligram
    for a 10-hour work-shift. This recommendation was based on a
    comprehensive review of the scientific literature concerning
    coal workers' pneumoconiosis and was based on data gained for
    U.S. miners in the United States over the past 30 years.
        The previous standard was based on research done in the
    United Kingdom and had to be adapted to the present situation.
    The study is scientifically sound and was thoroughly reviewed
    by NIOSH and by external reviewers. It was also reviewed by
    MSHA's advisory committee on dust control which recommended
    that MSHA consider revising the dust standard based on the
    NIOSH criteria document.
        There are several important technicalities in the proposed
    legislation which I will just describe briefly. First, the one
    milligram limit is expressed as a 10-hour average. The current
    two milligram limit is an average over a shift. Miners now work
    longer shifts and when they do, they inhale more dust.
    Consequently, it is appropriate to adjust the exposure limit
    for shift length.
        Let me now turn to the personal dust monitor. I first
    became involved in mining dust issues in 1978. At that time,
    there was a direct-reading instrument being considered. Thirty
    years later, it is the same instrument and it is nowhere close
    to being implemented. The PDM provides real-time data at the
    time and the place where it is most useful.
        Under the current system, dust data arrives 1 to 2 weeks
    after the sample is taken. During that time, conditions change.
    It is impossible to find out what exactly might have caused an
    overexposure. But with the PDM, we can identify when and where
    and why overexposure occurred.
        One of the important benefits of the PDM is that by
    identifying dust sources in a timely manner and with precision,
    it makes it entirely feasible for mine operators to identify
    and reduce exposure to below the one milligram limit. I should
    note that--and I see my time is nearly up--but I should note
    that the union and a group of mine operators have been meeting
    over the past couple of years to try and find common ground so
    we could support the use of the PDM. We have agreed on a number
    of important areas.
        These are that MSHA should do all compliance sampling,
    which is consistent with what this legislation says; that the
    PDM should be the single approved instrument for measuring
    dust; and that MSHA should purchase the samplers and mine
    operators maintain them. There have been important changes in
    the industry over the past several years. I think the current
    technological environment allows us to take advantage of them.
        I would be happy to answer questions when we are finished.
        [The statement of Mr. Weeks follows:]

    Prepared Statement of James L. Weeks, Sc.D., CIH, Consultant Industrial
                Hygienist to the United Mine Workers of America

        Mr. Chairman and other members of the committee, my name is Jim
    Weeks, I am a consultant industrial hygienist for the United Mine
    Workers of America. Thank you for inviting me to testify concerning
    this legislation and more important, thank you for providing the
    leadership to improve the health and safety of miners. Mining,
    unfortunately, remains the most dangerous industry in the US and mines
    in the US remain the least safe of mines in other technologically and
    economically advanced countries. There is lots of room for improvement
    and this legislation should make a big difference for miners and their
    families.
        I wish to speak to two aspects of the proposed legislation: First,
    revision of the dust standard from 2.0 mg/m3 to 1.0 mg/m3 for a ten
    hour work-shift and second, use of the personal dust monitor (PDM) for
    measuring exposure to respirable dust. If both of these measures are
    adopted and implemented, we can prevent black lung.
        Over the past five years, several clusters of black lung cases have
    been identified among miners who started their mining careers well
    after the 2 mg/m3 standard became effective.(Antao et al. 2005; MMWR
    2006) Many of these cases were of the more advanced form, progressive
    massive fibrosis, the condition that allows for an automatic
    entitlement for federal black lung benefits for total disability.
    Miners with PMF suffer and die early. Medical treatment can alleviate
    some of the symptoms but there is no cure.
        We do not know the names of these miners, we do not know the mines
    where they worked, there is no specific event that caused these
    tragedies. The cases occurred because of exposure to too much dust day
    after day after day after day, for decades, in a slow motion tragedy.
    These cases resulted from systemic failures. These lives will not end
    with a bang but with a whimper. Before black lung kills, it tortures
    its victims with breathlessness and suffering. And it is all entirely
    preventable.
        They did not occur, however, because we (``We'' means the entire
    industry: operators, the Union, mine workers, MSHA, and NIOSH) do not
    know how to control dust. Effective and feasible dust controls are well
    known and available throughout the industry (Kissell FN 2003). It was
    the failure to use these controls and the failure to enforce dust
    exposure limits--not the absence of knowledge--that caused these cases.
        In 1995, NIOSH recommended that the dust standard be reduced from
    2.0 mg/m3 for a work shift to 1.0 mg/m3 for a ten hour work shift.
    (NIOSH 1995). This recommendation was based on a comprehensive review
    of the scientific literature concerning coal workers' pneumoconiosis
    (CWP) and was based on data gained for U.S. miners over the past thirty
    years. The previous standard was based on research done in the UK where
    dust concentration is measured differently and which has required
    adjustments of measurements in the US to conform to the British dust
    measurements, the so-called MRE-equivalent dust level. A standard based
    on experience with US miners and using instruments developed in the US
    is a substantial improvement.
        This study is scientifically sound and was thoroughly reviewed by
    NIOSH and by other agencies in the Centers for Disease Control and by
    an international panel of external reviewers for its validity and the
    reliability of its findings. It was reviewed also by MSHA's Advisory
    Committee on dust control which recommended that MSHA ``* * * consider
    revising the dust standard.'' based on the NIOSH Criteria Document. (p
    50-54) The principal source of hesitation on the Advisory Committee was
    whether such a limit was feasible and not whether the science was
    valid.
        There are several important technicalities in the proposed
    legislation. First, the 1 mg/m3 limit is expressed as a ten hour
    average. The current limit of 2 mg/m3 is an average over a ``shift,''
    assumed to be eight hours. That was the convention when the coal mine
    act of 1969 was adopted. Miners now work longer shifts and when they
    do, they inhale more dust. Consequently, we need to adjust the exposure
    limit so that it is proportionately lower for longer shifts to make it,
    as stated in the legislation, equivalent to 1 mg/m3 for ten hours. This
    is a common problem in industrial hygiene addressed by ``Haber's
    Rule.'' (Armstrong TWA et al. 2005)
        A second technicality is that current MSHA practice is to add an
    error factor to the exposure limit before they issue a citation for
    non-compliance. In effect, this raises the exposure limit. The reason
    they do this is so that they have a ``high degree of confidence'' that
    exposure is, in fact, above the exposure limit. The problem with this
    approach is that errors in measuring dust concentration can occur as an
    under-estimate as well as an over-estimate of true concentration. By
    only considering an over-estimates, they give the benefit of doubt to
    mine operators at the expense of miners' health. This legislation, the
    Advisory Committee, and the NIOSH Criteria Document all recommend
    against this practice (Advisory Committee 1996;NIOSH 1995).
        This is not a trivial matter. Based on dust exposure data for
    longwall sections in 2003, if MSHA issued citations for measured dust
    concentration over 2 mg/m3 rather than their Criterion Threshold Value,
    they would have issued 36% more citations than they in fact did. (Weeks
    JL 2006)
        Let me now turn to the Personal Dust Monitor (PDM). I first became
    involved in mining dust issues in mining in 1978 and the concern then
    was with a direct-reading dust instrument much like the PDM.
    Unfortunately, thirty years later, the hopes engendered by developments
    then remain unfulfilled. The PDM is a significant improvement over the
    current method for measuring dust concentration. (Volkwein JC et al.
    2004) The current method uses a battery operated pump to collect
    respirable dust on a pre-weighed filter. This filter and supporting
    data are mailed to MSHA which weighs it and reports the concentration
    back to the mine operator. This process takes one to two weeks from the
    time the sample is taken to the time the information is returned to the
    mine operator. During this time, mining advances and conditions change.
    The information is practically useless for the purpose of finding dust
    sources and controlling exposure. It is also expensive. Cost per sample
    by the PDM is approximately one tenth of the cost per sample using the
    pump and filter.
        The PDM, on the other hand, provides real-time data at the time and
    place where it is most useful. It measures dust concentration and
    displays it on a screen for the mine operator and the miner so that
    dust sources can be identified and controlled and so that the miner
    could take the necessary steps to prevent his or her own over-exposure.
    Information can be down-loaded at the end of each shift and made
    available to all. The instrument has been tested in mines and is
    reliable and accurate. The manufacturer is ready to begin production.
        One of the important benefits of the PDM is that by identifying
    dust sources in a timely manner and with precision, it makes it
    entirely feasible for mine operators to reduce exposure to below the
    proposed 1 mg/m3 exposure limit, thus removing concerns about whether
    it is feasible to reduce exposure below the 1 mg/m3 standard.
        The Union and a group of mine operators have been meeting over the
    past couple of years in order to identify some common ground so that
    that we could support the use of the PDM. We have come to agreement on
    a number of important matters. These are that the PDM should be used
    for two purposes: compliance determination and surveillance (to
    identify sources), that MSHA should do all compliance sampling
    (agreeing with the Advisory Committee), that the PDM should be the
    single approved instrument for measuring dust exposure, and that MSHA
    should purchase and mine operators should maintain these instruments.
    Remaining areas of disagreement include how to determine non-compliance
    and how to evaluate dust exposure for extended work shifts.
        There have been some important changes in the industry in recent
    years. On the negative side, fires, explosions, and respirable dust
    continue to take their toll. Work shifts have become longer. On the
    positive side, technological developments such as the PDM enable a much
    higher degree of control over dust concentrations, enabling us to
    reduce exposure and prevent black lung. The proposed legislation goes a
    long way to address these developments and I welcome it. I will be
    happy to answer any questions you have here and now or later, as these
    bills make their way through the process. Thanks again for your
    invitation.
                                 reference list
    Advisory Committee. Report of the Secretary of Labor's Advisory
            Committee on the elimination of pneumoconiosis among coal
            miners. 1-162. 1996. Washington, DC, US Department of Labor.
    Antao VC, Petsonk EL, Sokolow LZ, Wolfe AL, Pinheiro GA, Hale JM,
            Attfield MD. 2005. Rapidly progressive coal workers'
            pneumoconiosis in the United States: geographic clustering and
            other factors. Occup Environ Med 62:670-674.
    Armstrong TWA, Caldwell DJ, Verma DK. 2005. Occupational exposure
            limits: An approach and calculation aid for extended work
            schedule adjustments. J Occup Environ Med 2:600-607.
    Kissell FN. Handbook for dust control in mining. IC 9465 DHHS (NIOSH)
            2003-147. 2003. Washington, DC, Centers for Disease Control and
            Prevention. Information Circular.
    MMWR. 2006. Advanced cases of coal workers' pneumoconiosis--two
            counties, Virginia, 2006. MMWR Morb Mortal Wkly Rep 55:909-913.
    NIOSH. Criteria for a recommended standard: Occupational exposure to
            coal mine dust. National Institute for Occupational Safety and
            Health. (NIOSH) 95-106. 1995. Washington, DC, Centers for
            Disease Control and Prevention.
    Volkwein JC, Vinson RP, McWilliams LJ, Tuchman DP, and Mischler SE.
            Performance of a new personal respirable dust monitor for mine
            use. RI 9663; DHHS (NIOSH) 2004-151. 2004. Washington DC,
            Centers for Disease Control. Report of Investigation.
    Weeks JL. 2006. The Mine Safety and Health Administration's Criterion
            Threshold Value policy increases miners' risk of
            pneumoconiosis. Am J Ind Med 49:492-498.
                                     ______

        Chairwoman Woolsey. Thank you, Dr. Weeks.
        Mr. Wright?

      STATEMENT OF MICHAEL WRIGHT, DIRECTOR OF HEALTH, SAFETY AND
                    ENVIRONMENT, UNITED STEELWORKERS

        Mr. Wright. Madam Chair, thanks for the opportunity to
    testify. My name is Michael Wright. I am the director of the
    health safety and environment department of the Steelworkers
    Union. We represent 850,000 workers in North America, including
    the majority of unionized metal and nonmetal miners in the
    United States and Canada.
        Dennis O'Dell and Jim Weeks talked about the need for this
    legislation in coal mining. Indeed, much of the MINER Act and
    much of H.R. 2768 is focused on underground coal mines. That is
    appropriate, given the terrible death toll in underground coal
    mines last year.
        However, MSHA's jurisdiction extends to many mines beyond
    coal and to surface mines as well. In 2004, there were 51,000
    workers in underground mines, although many of them worked in
    surface operations like hoists and prep plants. There were
    151,000 workers in surface mines. Coal accounts for about one-
    third of our nation's miners, 73,000 out of a total of 220,000.
        Last year, there were almost twice as many deaths in coal
    mining as in metal and nonmetal operations, 47 versus 25. But
    in 2005, the year previous, 35 metal and nonmetal miners died,
    as against 22 coal miners. So far this year, that pattern is
    repeating with 15 deaths in metal and nonmetal, and 9 in coal.
        Deaths in metal and nonmetal mining are as varied as the
    operations themselves. My written testimony gives several
    recent examples, all for mines organized by our union. I will
    summarize them: a miner killed in an underground limestone mine
    when a farm-type tractor that never should have been allowed
    underground, flipped over and crushed him; two miners killed in
    the same surface iron mine in six months--one by electrocution,
    one when a number of defective bolts on a stabilizer snapped
    off, causing a large mobile drill to tip over; one worker who
    was sprayed with toxic and corrosive hydrogen fluoride in an
    operation you might not think of as a mine--an aluminum
    refinery.
        Over the past few years, metal and nonmetal miners have
    also died in rock bursts, roof falls, falls from height, fires,
    explosions, drownings, and in many other ways.
        Some of the provisions of the S-MINER Act would make a big
    difference, particularly the language on the pattern of
    violations, unpaid penalties, and penalty assessment, as well
    as the ombudsman. We need this bill just as much in metal/
    nonmetal as we do in coal.
        Miners also die from occupational illnesses, and not just
    black lung. We now have 58 confirmed cases of mesothelioma
    among miners on the Iron Range in Minnesota. Mesothelioma is of
    course caused by asbestos exposure. That is a rate double the
    rate expected for the general population. MSHA's asbestos
    standard is still where OSHA's was 20 years ago--20 times
    higher than the current OSHA standard. That is a fact that the
    Miner Health Enhancement Act would quickly correct.
        Workers in cement plants regulated by MSHA are exposed to
    hexavalent chromium, a potent carcinogen, at a level more than
    10 times higher than the current OSHA standard. We have
    actually challenged that current OSHA standard in court as
    being lethally inadequate. We think it should be five times
    lower. That is where the NIOSH recommended the exposure limits
    as it should be. H.R. 2769 would make that level the law.
        The MSHA hazard communications standard discriminates
    against miners by denying them information that has to be
    disclosed to their brothers and sisters in general industry. It
    is absurd that OSHA and MSHA have different rules governing
    what health information a worker is entitled to. H.R. 2769
    would fix that as well.
        In my written testimony, there are some suggestions for
    fine-tuning both bills and I hope you give those suggestions
    some consideration. But the most important thing is that we
    need this legislation. The mine operators and their trade
    association would have it otherwise. ``Let's not act too
    quickly,'' they say, ``let's wait.'' Well, perhaps they can
    afford to. Our nation's miners cannot.
        Let me make one other point for those who think that
    Congress did enough with the MINER Act and we don't need to act
    now. How do you say to an iron miner, exposed to 20 times the
    level of asbestos that OSHA would allow, not to worry about
    that, because last year we required that more self-contained
    self-rescuers be required in coal mines? How do you tell a
    cement plant worker exposed to hexavalent chromium that she
    shouldn't worry about that, because last year we fixed another
    problem that she doesn't have? Every miner deserves protection.
        So thank you, Madam Chair and the cosponsors and all the
    members of the committee for your attention to this important
    issue.
        [The statement of Mr. Wright follows:]

    Prepared Statement of Michael J. Wright, Director of Health, Safety and
                        Environment, United Steelworkers

        Madam Chair, Congressman Miller and other members of the
    Subcommittee, my name is Michael Wright. I am the Director of Health,
    Safety and Environment for the United Steelworkers, a union
    representing 850,000 workers in North America, including the majority
    of unionized metal and non-metal miners in the United States and
    Canada.
        Last year, I had the honor of testifying at the February 13
    Congressional Forum on Mine Safety and Health convened by Congressman
    Miller. Let me say what a pleasure it is to be here today, at an actual
    Congressional hearing considering mine safety--a hearing examining what
    more we should do after the passage of the MINER Act and the new MSHA
    rules that resulted from it. Let me also express our gratitude to
    Congressman Miller, Congresswoman Woolsey, and all the members of the
    committee who helped pass that legislation and who continue to support
    safe working conditions, not just for miners, but for all Americans.
        Dennis O'Dell and Jim Weeks have talked about the need for this
    legislation in coal mining. Indeed, most of the MINER Act and much of
    H.R. 2768 is focused on underground coal mines. That is appropriate,
    given the terrible death toll in underground coal mines last year.
    However MSHA's jurisdiction extends to many mines beyond coal, and to
    surface mines as well. In 2004, there were 51,000 workers at
    underground mines, although many of them worked in surface operations
    like hoists and prep plants. There were 151,000 workers in surface
    mines. Coal accounts for about a third of our nation's miners--73,000
    out of a total of 222,000. Last year there were almost twice as many
    deaths in coal mining as in metal and non-metal operations (47 vs. 25),
    but in 2005, 35 metal/non-metal miners died as against 22 coal miners.
    So far this year, that pattern is repeating, with 15 deaths in metal/
    non-metal and 9 in coal.
        Deaths in metal and non-metal mines are as varied as the operations
    themselves. Let me give just a few examples, all from mines organized
    by our union. On January 31, 2005, David Wilson died at the Carmuse
    Corporation underground limestone mine in Butler, Kentucky, when the
    tractor he was operating flipped over and crushed him. The tractor had
    ridden up on a pillar. The front wheels were set very close together,
    so the tractor turned over easily. It also had no roll-over protection.
        On October 11, 2006, Andrew Reed was electrocuted at the Cleveland
    Cliffs United Taconite mine in Eveleth, Minnesota. He was a supervisor
    doing electrical troubleshooting.
        On January 2 of this year, John Dorton was killed at the Alcoa
    alumina refinery in Point Comfort, Texas. He was hit with a sudden
    release of hydrogen fluoride while he was cleaning out a valve. The
    company had not supplied the right protective equipment; nor was the
    valve cleaning operation sufficient to prevent the release. That plant
    is not a mine in the traditional sense, but because it processes
    minerals it is rightly under MSHA's jurisdiction.
        On April 18 of this year, Deane Driscoll died at same United
    Taconite mine in Eveleth, Minnesota where Andrew Reed died six months
    earlier. He was operating a large mobile drill when several bolts
    snapped off a stabilizing cylinder, one by one, each failure leading to
    the next, causing the drill to tip and ejecting him from the cab. We do
    not yet know why the bolts failed, but they were either poorly designed
    or defective in their manufacture.
        Over the past few years, metal/nonmetal miners have also died in
    rock bursts, roof falls, fires, falls from height, in explosions and in
    many other ways. These deaths normally occur one at a time. They do not
    make the national news. But taken together, the toll is far greater
    than the toll from disasters like Sago. Of course, in the long run even
    more miners die from health hazards like coal dust, silica and diesel
    exhaust, and those deaths do not appear in the official statistics.
        Some of the changes over the past year will make a real difference.
    The new penalty structure gives MSHA increased authority to punish
    chronic violators, although the S-MINER Act would make further
    improvements. Immediate notification of accidents allows MSHA to better
    control an accident scene, and to help ensure that the problem does not
    spread further. After years of controversy, the metal/nonmetal diesel
    standard is finally in place, and should be free from further court
    challenges. Your committee facilitated many of these changes, either
    directly through the MINER Act, or by just keeping the heat on the
    Department of Labor.
        But more is needed. The S-MINER and the Miner Health Enhancement
    Acts would be great steps forward, and we are enthusiastic supporters
    of both. At the same time, both could benefit from some fine-tuning.
    Let me discuss three aspects of the bills in particular.
        First, we believe that many of the provisions of the MINER Act and
    the S-MINER Bill, designed to protect miners in emergency situations,
    should be extended to metal/nonmetal mines. We certainly support the
    advisory committee required by Section 4(j) of H.R. 2768, but some
    things could be done now. One example is the use of flame-resistant
    conveyor belts. Belt fires are less risky in metal/nonmetal mines,
    since the belts generally carry non-flammable materials. But belt fires
    are still a potential hazard, and there is no reason to allow inferior
    belts in any mine.
        We also believe that self-contained self-rescuers should be
    required in most underground metal/nonmetal mines. It is ironic that
    much of the impetus for SCSRs came from the 1972 disaster at the
    Sunshine Mine near Kellogg, Idaho--a silver mine--where an underground
    fire killed 91 miners, all from carbon monoxide poisoning. Most of them
    were members of our union. Some of the factors that led to the fire
    have been eliminated by MSHA regulations, but 45% of the mine fires
    reported to MSHA between 1991 and 2000 occurred in metal/nonmetal
    mines.\1\ There are plenty of combustible materials in such mines--
    belts, fuels for mobile equipment and mobile equipment itself,\2\ old
    timbers,\3\ methane, combustible ores like gilsonite and other
    materials. The January 2006 fire in a Saskatchewan potash mine, which
    forced 72 miners into a refuge chamber for 28 hours because of toxic
    gases and smoke, started in some plastic piping. In short, there is no
    reason why Congress should not require MSHA to initiate prompt
    rulemaking extending the protection of SCSRs to underground metal/
    nonmetal miners.
    ---------------------------------------------------------------------------
        \1\ Ronald S. Conti, ``Responders to Underground Mine Fires,''
    NIOSH Pittsburgh Research Laboratory.
        \2\ Forty-six percent of metal/nonmetal fires in the study cited
    above involved mobile equipment.
        \3\ Old timbers were a major cause of the Sunshine Mine fire, and
    more recently, a February 8, 2001 fire at the Homestake Gold Mine in
    Lead, SD, which required the evacuation of 37 miners.
    ---------------------------------------------------------------------------
        Second, let me comment briefly on the role of the Chemical Safety
    and Hazard Investigation Board, as contained in Section 6(g)(3) of H.R
    2768. We are great fans of the CSB; they have done a superb job in
    recent investigations, especially the investigation of the March 23,
    2005 disaster at BP's Texas City Refinery, of which this Committee is
    well aware. The CSB could be quite useful in the investigations of
    chemical accidents, like the fatal hydrogen fluoride release at Alcoa
    Point Comfort which I mentioned earlier. But they have no expertise in
    mine issues like roof falls or belt fires. The CSB is needed outside of
    mining, because OSHA typically does not do accident investigations
    beyond what is needed to determine compliance. Nor does OSHA issue
    accident reports. MSHA, however, does. And in our experience, MSHA's
    accident reports are excellent, concentrating on root causes well
    beyond mere compliance issues. The USW represents most of the unionized
    workers in chemical plants and oil refineries. That is where we need
    the CSB, not in duplicating what MSHA already does well.
        Nevertheless, there should be a limited role for the CSB in mining.
    First, MSHA should have the ability to ask the CSB for help in the
    areas of its expertise, such as where dangerous chemicals are involved,
    or in explosions. Second, the CSB should have the power to initiate its
    own independent investigations in chemical safety matters in mining. It
    can be argued that the CSB already has that authority, but the S-MINER
    Act could clarify it.
        Third, and turning to H.R. 2769, we applaud the bill's authors,
    Congressmen Miller and Rahall, for addressing the issues of air
    contaminants, asbestos and hazard communication. As the bill
    recognizes, the MSHA air contaminant standards are badly out of date.
    We agree that the NIOSH Recommended Exposure Limits provide the best
    list through which the new and more protective permissible exposure
    limits could be established quickly. However, there are two problems
    with this approach which will have to be overcome. Many of the
    carcinogens referenced by NIOSH do not have quantitative PELs. Instead,
    they are simply designated as carcinogens, with the implication that
    they be controlled to the lowest feasible level. Two examples are
    cadmium and welding fumes. ``Lowest feasible level'' works fine as a
    recommendation, but it lacks the specificity required for a regulation.
    One solution would to be to default to the consensus standards
    established by the American Conference of Governmental Industrial
    Hygienists where a numeric REL does not exist. After all, the ACGIH
    threshold limit values were the basis for the first set of MSHA and
    OSHA air contaminant standards.
        The other problem is potentially more serious. Many of the NIOSH
    RELs were adopted without a consideration of technological feasibility,
    particularly in mining. It would be nice to set standards solely on the
    basis of health effects, but up until now the laws governing OSHA, MSHA
    and hazardous air pollutants under EPA have always recognized that
    standards must be not only protective, but must be feasible as well.
    Therefore, we would suggest a slight modification of H.R. 2769 which
    would give MSHA the discretion (but not the requirement) to modify the
    PEL through notice and comment rulemaking if the Agency determines that
    the NIOSH REL may be infeasible in mining.
        We support Section 4 of the bill, on asbestos, with one addition.
    MSHA should certainly adopt the OSHA standard for asbestos, but should
    be free to add additional provisions. For example, MSHA might wish to
    include additional asbestiform minerals to the coverage of the
    standard, or work practices applicable to mining.
        Finally, we fully support Section 5, which would require MSHA to go
    back to the October 2000 Interim Final Rule on Hazard Communication in
    lieu of the June 2002 final rule. Under the interim final rule,
    suppliers had to update material safety data sheets whenever the ACGIH
    or recognized international organizations like the International Agency
    for Research on Cancer updated their recommendations. Under the final
    rule, suppliers can now withhold that information from users.
        We've talked to chemical suppliers who think this change was
    brainless. They have no intention of writing different MSDSs for OSHA
    and MSHA jurisdictions. I have also talked to two tort lawyers who,
    when they stopped laughing, said how stupid this change really was.
    Imagine a case where a worker or consumer was harmed by product labeled
    under the MSHA rules. Suppose it became known that, not only had the
    supplier failed to disclose the latest information to the user, but had
    even lobbied the government for the right to cover it up. The liability
    would be enormous. For the good--not only of miners--but for the
    industry itself, Congress should reverse this absurdity.
        Again let me express our support for both the bills before you. The
    handful of changes we recommend are minor; we believe they could be
    made easily.
        Thank you again, Madam Chair for the opportunity to testify and for
    your efforts on behalf of miners and all working Americans.
                                     ______

        Chairwoman Woolsey. Thank you, Mr. Wright, and thank you
    for calling it back to our attention that we are talking about
    all mines and all miners. Thank you very much.
        I now recognize myself for 5 minutes for questions.
        Mr. Stricklin, thank you for being here and talking to us
    again about the technical assistance that we need in these
    bills.
        I understand that the concerns you raised in your statement
    this morning are virtually the same ones you discussed at a
    meeting that you were invited to with our staffs, and I mean,
    staffs, industry representatives, and meeting with the majority
    and the minority. I appreciate you for the time and your
    investment in that.
        But today's testimony gives me an opportunity to say on
    behalf of our members that we need specific questions for
    improving this bill. We have them. We need them from you,
    because it is the obligation of my subcommittee to protect
    health and safety of the miners. I want everybody to know we
    are not going to get stalled along the way.
        So what we want to do is make it as convenient and easy as
    possible for you to join us in pressing forward on identifying
    what problems need to be addressed. So what I am asking you is
    can you and other experts from your department commit to some
    substantial time in the next week or two with our staffs on
    both sides of the aisle, and other interested parties, to work
    through these technical questions that you have identified?
        I also want to bring forward that we have heard about
    enforcement mechanisms that are just not being adhered to. They
    are being ignored. We need to bring that into the conversation
    also.
        Mr. Stricklin. We would be more than happy to do anything
    we could to meet with anybody willing to listen to us.
        Chairwoman Woolsey. All right. We will count on that. I
    think it is very, very important because we need you at the
    table, and we need those questions, and we need the discussion
    about it.
        So, Dr. Weeks, the United Kingdom, what have been the
    results of their lowering of the dust particles?
        Mr. Weeks. In the U.K.?
        Chairwoman Woolsey. In the U.K.
        Mr. Weeks. There are very few miners in the U.K. Most of
    the mines are shut down. They have had great success in
    reducing the incidence of CWP, and we have, too, in this
    country over the past several years.
        Chairwoman Woolsey. So do you think that miners should be
    obligated to undergo X-rays every few years? Upon hire, for
    one, so there is a base, and then to determine if they have
    lung diseases, and to follow, you know, their careers and if
    there are changes along the way?
        Mr. Weeks. Right now, they are required to have a chest X-
    ray when they first start their work as miners. There is a
    follow-up film I think 2 years or so after that. After that
    time period, mine operators are required to offer the films to
    miners, but miners are not obligated to take them. Many do and
    many don't.
        If the question that you are raising is should miners be
    required to take these films, the answer is clearly no, on my
    part, because it is used against them in employment. If a miner
    has a positive film for CWP, effectively he is blacklisted from
    employment in the mines. So until that problem is fixed, I
    would be reluctant to require them to take the films.
        Chairwoman Woolsey. So how would you fix that problem?
    Should not that information be confidential and locked away?
        Mr. Weeks. It is required to be confidential now. It
    doesn't always occur that way, that it is confidential. That
    part of the program is simply not very well-enforced. So there
    are breaches of confidentiality in terms of the results of
    miners' chest X-ray films. I think it is due to lack of
    enforcement. Until that is fixed, miners should have control
    over the film themselves and they can do with it what they
    will.
        Chairwoman Woolsey. So, Mr. Wright, would you like to chime
    in on this?
        Mr. Wright. I think there is a problem with requiring
    people to take medical exams under law. We do it for people
    whose jobs involve public safety, but it is not generally the
    practice to say that workers have to take medical exams for
    their own supposed protection.
        We have seen cases where--and this is not in coal mining,
    because we don't represent people in coal mining in this
    country--but we have seen cases where an employer says to a
    worker, pre-hire, you have to turn over all your medical
    records. Now, that may or may not be legal, but in fact if you
    refuse to do it, you don't get the job.
        So the current system puts miners and many other workers in
    a kind of a catch-22. If you take the exams, then get an
    adverse finding, your job prospects are probably finished.
        So unless we can solve that problem by saying people have a
    right to employment and that employers do not have a right to
    ask those questions, and that that is enforceable, we are going
    to put miners in a terrible situation.
        Chairwoman Woolsey. Right. Thank you very much. That was
    good information for me.
        Mr. Wilson?
        Mr. Wilson. Thank you, Madam Chairman.
        I would like to thank all four of you for being here today.
        But as the testimony proceeded, it was really clear to me
    there should be three parties here. You have the regulators.
    You have the representatives of the workers. But by not having
    the industry here, I think that is really wrong. The Mining
    Association has an excellent reputation of being strongly,
    obviously, in favor of health and safety of the people who work
    with them.
        Additionally, to make it worse, there were references to
    what their positions would be if they were here. That is just
    simply not right.
        So I hope in the future that we will have hearings where we
    have the regulator, the workers and the industry affected,
    particularly because I know the sincerity of the people here,
    but also the industry certainly cares about the people who work
    for them--their health and safety.
        As we proceed, Mr. Stricklin, your very thorough testimony
    discusses 16 provisions of the bill that you have technical
    concerns. Can you highlight those that you feel weaken the
    current MSHA safety and health standards, leaving the miners
    less protected? Can you also explain how the bill would impact
    the ability of the agency to write citations?
        Mr. Stricklin. A couple of the ones that we feel lessen is
    the multiple gas detector. The way that H.R. 2768 says if a
    person is going to work alone, he may have a detector with him.
    The way we enforce the regulations today, he will have a
    detector with him. It is the kind of wiggle room sometimes you
    get into when you use the word ``may'' in a regulation. It is
    tough to enforce.
        Secondly is the immediate notification part of the
    regulation. It basically gives a couple of different options--
    15 minutes and 1 hour. Right now, every accident needs to be
    reported within 15 minutes, so we feel if we go to the 15
    minutes or the 1-hour component of the new reg that it lessens
    what is in place right now.
        Mr. Wilson. Additionally, the legislation bans the use of
    belt air. Can you present situations where belt air would
    improve safety? Does this legislation take into account the
    recommendations of the belt air technical safety study panel
    that was created by the MINER Act? Has the agency identified
    any instances where the use of belt air resulted in a coal mine
    fatality?
        Mr. Stricklin. I guess our position, based on trying to
    implement the MINER Act, I would prefer to wait until Dr. Weeks
    and his group have had an opportunity to finish their panel
    work. I think that is due at the end of this year. As far as a
    fatality occurring because of a belt fire, I don't now of any.
        Mr. Wilson. Additionally, if a new type of belt were
    required, as suggested by H.R. 2768, would MSHA be required to
    deem it safe? There is a long history of increasing belt safety
    to include extensive debate over the appropriate testing of the
    subject, the belt. Can you provide an overview of this subject
    and explain how the bill would address this?
        Mr. Stricklin. All belts have a flammability rating to
    them, and there is a standard in the regulation. Anything that
    would change would have to go through our approval and
    certification center in Triadelphia, West Virginia. Basically,
    they evaluate it and they determine how quickly a belt would
    burn. Naturally, any test or any requirement in a new
    regulation would have to be tested by them to ensure that it
    met what Congress intended for it to have in the regulation.
        Mr. Wilson. And also under the provisions concerning
    inspections of the self-contained self-rescuers, how many units
    do you estimate would have to be tested annually? Wouldn't this
    greatly reduce the number of SCSRs available to protect miners?
        Mr. Stricklin. We think when the MINER Act is fully
    implemented and all the purchase orders are put in place, that
    we are going to have approximately 200,000 self-rescuers in
    place in mines. This regulation discusses 5 percent every 6
    months, which indicates in 1 year's time 20,000 SCSRs will need
    to be tested.
        Mr. Wilson. Is there personnel for that?
        Mr. Stricklin. We don't think we have the personnel to do
    that. I think another issue would be whether NIOSH has enough
    personnel, because as we get the SCSRs, we would have to give
    them to NIOSH. They would be the group of folks who would be
    testing these SCSRs.
        Mr. Wilson. Do miners themselves or the industry or others
    test the equipment?
        Mr. Stricklin. A mine operator, I guess, could possibly
    have an independent test. I think right now there are about 200
    per year that are tested. So as we would increase to 20,000,
    that is naturally a large increase from 200 per year that we
    now see. So there would have to be a lot of gearing up for
    that.
        Mr. Wilson. Thank you very much.
        Mr. Stricklin. You are welcome.
        Chairwoman Woolsey. I would like to note that because the
    ranking member had to spend part of his testimony scolding the
    chairwoman, I gave him a little more time. [Laughter.]
        Mr. Bishop? Oh, sorry.
        Mr. Hare?
        Mr. Hare. Thank you, Madam Chair. I am a lot better looking
    than Mr. Bishop anyway. [Laughter.]
        I want to thank you all for coming.
        You know, I have to say to my friend from Minnesota when he
    talked about only 20 percent of miners are organized in the
    union, I hope a couple of things. One, I hope that increases
    significantly, and I am sure that it will. But I don't think
    there is any miner from my perspective that doesn't want to be
    able to go to work and have the feeling they can come home and
    see their family, whether they belong to a union or not. So I
    appreciate the fact that you are all here today.
        Mr. O'Dell, you are, I think, our resident expert on this
    because you were a miner. I don't know if anybody on this
    committee has ever mined. I certainly haven't. So I think you
    can speak with a great deal of experience for actually being
    down in the mines and to talk about some of this stuff.
        You know, we have heard a lot about the belt air. Why do
    you think the mine operators want to use the belt air to
    ventilate the mines? Have you ever seen a valid safety reason
    for doing that?
        Mr. O'Dell. If I may, I was a rank-and-file miner at the
    time the belt air petitions started coming about. I was also
    chairman of the safety committee at the Robins mine number 95
    in Harrison County, West Virginia. The mine superintendent
    called me in and said, ``Dennis, we are getting behind on the
    development of our sections, and the only way that we can
    continue to keep up with the development of our sections is to
    reduce the headings that we drive up.''
        At the time, we had some headings, some sections that were
    eight headings, and some that were six, and some that were
    four. They wanted to reduce down to a three-entry system, plain
    and simple, because of not being able to properly manage their
    mine.
        So they started filing for a petition for modifications for
    the use of belt air. You lose headings so you had to use the
    belt entry to get air up into the section to be able to
    ventilate properly. That is my personal experience and that is
    the truth of how this whole thing came about--mismanagement on
    the operators.
        As I said before in my testimony, I have researched NIOSH's
    homepage and have not found anything about the use of belt air
    that has helped to improve miner health and safety.
        Mr. Hare. Okay. I appreciate that.
        Mr. Wright, I understand from your testimony that you, the
    steelworkers, believe that this legislation doesn't go far
    enough. Some of our Republican colleagues and MSHA and the
    industry believe we have gone too far.
        From your perspective, can you explain why you believe we
    should in fact be doing more than we have been doing on this?
        Mr. Wright. There were a couple of things that are in the
    S-MINER Act that apply to coal mines that we think should be
    seriously considered for metal/nonmetal mines as well. One of
    those is we don't like flammable belts either. Belts in metal/
    nonmetal generally don't carry flammable materials like coal,
    but a belt fire can be a pretty miserable thing. You know, you
    have basically burning rubber and in an underground
    environment, if you want a confined space, that can be a
    serious problem. And we have had some belt fires.
        The other thing we think we need ultimately is self-
    contained self-rescuers. We agree that the need in coal is
    greater currently, but we shouldn't forget that the biggest
    mine disaster in the past 40 years was an underground fire in a
    metal/nonmetal mine in Kellogg, Idaho. The Sunshine Mine in
    1972 killed 91 miners, all by carbon monoxide poisoning, and
    they all could have been saved with self-contained self-
    rescuers.
        It is ironic that it was that fire that helped not only
    create MSHA through the passage of the MSHA Act 5 years later,
    but also began to get self-contained self-rescuers into mines,
    but not into metal/nonmetal mines. A lot of the things we have
    done in metal/nonmetal make that kind of a fire less likely.
    But is it impossible? I don't think so. Forty-five percent of
    mine fires are in metal/nonmetal mines. So we would like to see
    self-contained self-rescuers there as well.
        Those are just two areas where we think that improvements
    can be made. There are other things that we think can be some
    fine-tuning in the bills, like always happens in the markup
    process. But we think on balance both bills are critically
    needed not just in coal mining, but in metal/nonmetal mining as
    well.
        Mr. Hare. I am almost out of time.
        Mr. Stricklin, just a quick question. In your professional
    opinion, why do you believe that black lung disease is on the
    rise again and being found in younger workers? What would you
    suggest that we do about it?
        Mr. Stricklin. That is a complex question. There are a lot
    of different components of it. It deals I think with
    production, the amount of production being mined; the extended
    hours of the employees. I do think we need to reevaluate the
    regulations that have been in place for over 35 years.
        As Dr. Weeks talked about, when they were implemented it
    was 8-hour days for 5 days a week, and we have changed that all
    now, as well as the production. I think a lot of that has to do
    with what we are seeing as an increase in black lung.
        Chairwoman Woolsey. All right. If the gentleman would yield
    just a second to me, I would suggest that that would be a good
    written response question that we could use on this committee.
        Mr. Kline?
        Mr. Kline. Thank you, Madam Chair.
        I thank all of the witnesses for being here. Despite our
    parliamentary discussions up here, we do welcome all of you.
        We are glad to have the union representatives here. I would
    just say again that I think we are missing a key stakeholder
    here and I wish that we had at least one representative of the
    National Mining Association, and apparently we ought to have
    the representation of the Industrial Minerals Association as
    well.
        There is an entirely new line of concerns that have been
    introduced today by Mr. Wright. I think Mr. Wright said the
    mine operators would have it otherwise, and of course we don't
    know that because there is no representative of the mine
    operators here.
        Mr. O'Dell said that industry may try to argue, or you may
    hear today that this will affect small operators, or some say
    it would be a burden--but again, we don't have any
    representative of the National Mining Association to respond to
    any of that.
        We really are trying to, I hope, come to the end of this
    process with good public policy that will enhance the safety of
    miners. We would just like to have all the stakeholders here.
        Mr. Stricklin, let's see if we can get a couple of pieces
    of this because there is some new stuff that has come up. The
    S-MINER Act requires hardening of communication equipment. Your
    statement discusses how this would adversely impact the system.
    Can you explain a little more about what hardening means and
    how can that be an adverse effect?
        Mr. Stricklin. I guess we are concerned that if we accept a
    hardened system or a leaky feeder system, that we may keep
    technology from advancing to where the MINER Act has to be in
    2009, and that was with wireless communication. We think we
    have a shot at getting to wireless communication. We are afraid
    that if we accept less than that, that the technology will
    stop.
        Secondly----
        Mr. Kline. Excuse me. And therefore miners would be less
    safe?
        Mr. Stricklin. I have been underground in probably 10 to 15
    explosion investigations. Quite frankly, after an explosion,
    there is not a whole lot left. I wouldn't expect whether this
    is a hardened line or just a leaky feeder line, it is not going
    to be there after an explosion. So I think we need to all try
    to get to this wireless communication that the MINER Act in
    2006 asked us to get to.
        Mr. Kline. Okay.
        Mr. Stricklin. Secondly, it is my understanding that by
    hardening the leaky feeder, it takes away from the electronics
    of the system as well, which means the communication won't be
    as good if you harden the line, rather than just letting the
    line lay freely in the entry.
        Mr. Kline. Thank you.
        By the way, I should say to all of you who have worked down
    in mines, my hat is off to you. I took one trip down. That was
    more than sufficient. It is an amazing, amazing job.
        Let me see if we can explore another thing here, because
    again this was new in this legislation, so I am gain going to
    come back to you, Mr. Stricklin, because of my limited time.
    H.R. 2768 would consider having the Chemical Safety Board
    brought in for mine investigations.
        As I understand it, this body has no regulatory authority,
    legal standing, or in fact mining capability. Can you, in the
    time that we have left, explain MSHA's investigation procedures
    and what impact it would have to have these additional parties
    brought into investigations?
        Mr. Stricklin. I think it makes it difficult. I guess we
    would like the ability, as we did if we go back to Sago. We
    dealt with a lightning issue. We are okay with bringing someone
    in if we need assistance. We are just concerned that if we have
    another government agency doing the investigation as well as
    us, number one, we don't think they have the expertise in
    mining.
        Number two, we don't think we have anything to hide. We are
    all career people. We do what we think is the right thing for
    the right reasons, and find the cause of the accident.
        Number three, we are concerned that if the Chemical Board
    does an investigation and finds things different than us, if we
    were to take action against a mine operator with civil or
    criminal penalty, if their report was different than ours, it
    would really taint probably what we could ultimately do.
        In addition, the Chemical Board wouldn't have the authority
    to issue any violations to the cause of the accident. So that
    would be our major concerns with that.
        Mr. Kline. Okay. I see the light is about to change. Thank
    you.
        I yield back, Madam Chair.
        Chairwoman Woolsey. Mr. Bishop?
        Mr. Bishop. Thank you, Madam Chair. Thank you very much for
    holding this hearing.
        Mr. O'Dell, in your testimony you quote the chair of the
    Mine Safety Technology and Training Commission in which he sort
    of lauds the notion of voluntary measures to improve safety,
    and suggests that legislation would stifle incentives to impose
    voluntary steps.
        I guess I am having a couple of problems with this. Number
    one, I would like to think that the law would constitute a
    pretty powerful incentive. I am just trying to understand.
        Perhaps, Mr. Stricklin, from your experience working with
    MSHA as long as you have, why is it that legislation would
    impose a restriction on good mine operators if the intent of
    the legislation is to make miners safer? And if good mine
    operators have that same goal, why would legislation be viewed
    as a disincentive to doing the right thing?
        I understand it is not your statement. I am just asking you
    from your perspective of working with this issue for a long
    time.
        Mr. Stricklin. When I look at mine operators, I don't look
    at good operators or bad operators. They are all operators, and
    they all need to comply with the regulations. So I don't see
    any difference in any operations when I look out at what I need
    to do.
        Mr. Bishop. I guess the point I am searching for is that
    there seems to be the suggestion here that the way we ought to
    be approaching this is by encouraging voluntary means to
    improve mine safety, as opposed to legislative means. I am
    struggling to understand why legislative means would be less
    effective than voluntary means.
        Mr. Stricklin. I guess we at MSHA would like to see all the
    voluntary change being made on their own, naturally. That makes
    our job a whole lot easier. I would get a lot more comfort out
    of going in and shaking someone's hand and saying they did it
    right, rather than having to issue violations. I don't have any
    incentive to issue violations. If they are there, we issue
    them.
        I think regulations just back up what really should be
    done. If a mine operator is not doing it, then it gives us the
    ability to go in and take care of business if they haven't done
    it on their own.
        Mr. Bishop. Okay. Thank you.
        My other question is for Mr. O'Dell and Dr. Weeks and Mr.
    Wright. Mr. Stricklin's testimony includes 16 areas where he
    believes our legislation is either deficient or in error or
    goes too far.
        My question to the three of you, and I know this is very
    broad: Are there any that jump off the page as particularly
    saying, you know what, he is absolutely right; we need to
    change the legislation? Or he is absolutely wrong and we need
    to set aside the objections that he has raised?
        Mr. O'Dell. If I may, I have not seen all 16 of those that
    they referred to yet. I mean, I heard him speak about a few of
    them today, but there is, let's say for example, he speaks
    about the leaky feeder system. That is actually something that
    the industry was pushing. That is something that they would
    have liked to have seen take place.
        We are not saying that that is where we need to stop. We
    are saying that is better than what miners are afforded today.
    We agree with the agency. We still need to push forward because
    we also believe that the wireless technology is something that
    is achievable, but we need to do better today than what we
    have.
        I mean, we have telephone systems in the coal mines that
    aren't much more than two tin cups with a piece of string
    behind them, virtually two mine phones with two pieces of wire
    hooked up with batteries, and that is about it. Just hardening
    the system would be a lot better than what we have today. By
    2009, we are still optimistic than we can get the wireless
    systems in the mines as well.
        There are others that I think that we are all open to, but
    I think we need to do it. Rather than sit and wait, there are
    things out there today. He spoke about the borehole cases
    coming into sample behind seals. I was part of an investigation
    a few years ago, where lightning struck the casing of a
    borehole. We saw traces that lightning hit that case and
    traveled underground and exploded behind the seals. Luckily,
    they had seals put in place that stopped that from coming out
    to harm the men. They were bulkhead seals.
        The problem with that was had the operator cut that casing
    off before they can move forward, that may not have occurred.
    So there are ways to get around that, as well. So you know, I
    agree with Mr. Stricklin on some things. I disagree with him on
    others, but to actually speak on all 16 of those, I would have
    to look at them. I will be happy to answer that.
        Mr. Bishop. Thank you.
        I see my time has expired. Thank you, Madam Chair.
        Chairwoman Woolsey. Mr. Price?
        Mr. Price. Thank you, Madam Chair.
        I want to apologize for not being here earlier for your
    statements. I had a conflict, but I understand that there were
    some interesting comments and actions that occurred.
        My previous life was as a physician. I took care of
    patients. One of the things I knew was that I needed all the
    information I could get my hands on in order to make a
    reasonable decision. So it disturbs me that apparently we have
    a panel that doesn't include a significant stakeholder or
    stakeholders in an effort to try to get all the information so
    that we have what is necessary to make appropriate
    recommendations and decisions.
        Madam Chair, I think that is important. I sincerely think
    that is important. I think we ought to make certain that the
    next hearing that we have on this issue that we have all
    stakeholders present.
        Mr. O'Dell, you have just made a comment saying that the
    industry--I think you said the industry--I think you said wants
    a leaky feeder system. How do you know that?
        Mr. O'Dell. I serve as the chair on a UMWA BCOA Committee.
    It is a joint committee in which all operators sit in and we
    sit around and we discuss the improvements and what we can come
    to agreements on safety.
        Mr. Price. Shouldn't we have the benefit of that
    information as well? Shouldn't industry be sitting right here
    with us and sharing that with us? Wouldn't that be appropriate?
        Mr. O'Dell. I can't answer that. I am a guest.
        Mr. Price. This committee takes this work very, very
    seriously. Charlie Norwood, who was a dear colleague and
    friend, represented the 10th District in Georgia, he was
    passionate about this issue. He worked for years to try to
    improve laws as they relate to mine safety.
        There were a number of things that he worked one. One of
    the things he worked for years on was bringing about MSHA and
    the MINER Act that was signed into law in June 2006. I think it
    is important that people understand and appreciate what has
    gone on since that point.
        In June of 2006, the law was signed into place and MSHA
    implements new penalties for late accident notification. In
    September, MSHA publishes proposed rules for increased civil
    penalties. In October of 2006, MSHA implements new penalties
    for flagrant violations. In December, MSHA implements a final
    rule to strengthen mine evacuation practices.
        In February of this year, MSHA issues a bulletin requiring
    breathable air for trapped miners. In March of this year, MSHA
    implements new penalties or safety and health violations. In
    May of this year, they published the emergency temporary
    standard on explosion in abandoned areas.
        They have moved in the following directions requiring all
    coal mines to submit to MSHA their emergency response plans,
    and all were submitted, requiring more self-contained self-
    rescuer devices for each miner in every underground coal mine--
    something that I know was said was a priority, that has indeed
    been required and implemented as of December of last year--
    there is a backlog, obviously, in the industry, but it is a
    requirement, requiring fire-resistant evacuation lifelines in
    all underground coal mines within 3 years as specified by the
    MINER Act; mandating additional safety training in the use of
    self-contained self-rescuers in all underground coal mines.
        There is a lot of work that has been done, a lot of good
    work that has been done. The list goes on and on. So I guess I
    would ask anybody, what additional steps have members taken in
    the mining industry to improve safety, other than the ones that
    I have mentioned, the ones that you know about, what additional
    steps have occurred?
        Mr. Wright?
        Mr. Wright. I want to make sure that I understand the
    question. Is it what additional steps should be taken or what
    additional steps----
        Mr. Price. What additional steps have been taken?
        Mr. Wright. Have been taken. Well, in metal/nonmetal
    industry, not very much. We are still very concerned about some
    of the health risks in that industry.
        Mr. Price. I need to reclaim my time for a minute. I need
    to reclaim my time because I am on yellow. I appreciate that. I
    appreciate you saying ``not very much.'' But wouldn't it be
    nice if I could turn to the industry and say, what else have
    you done? It is I think a travesty, this process that we are
    going through right now, that we don't have that kind of
    representation sitting at this table.
        That is not your fault, but this is the only opportunity
    that we have to officially state that we believe this is a
    flawed process, and a flawed process--just as a flawed process
    in the diagnosis of a patient--can't get to the right
    treatment.
        I yield back the balance of my time.
        Chairwoman Woolsey. Mr. Payne?
        Mr. Payne. Thank you very much.
        You know, you read off a whole litany of things that have
    been done, but we still had 24 miners dead. So perhaps we even
    have much further to go since with all of those things that
    were just read, you would think there would be no deaths. I
    don't know whether the fact that it is only 24 makes that list
    impressive. It is not impressive to me. If things can still be
    done, they ought to be done.
        We have heard from mine owners. We had a bunch of them
    here, or at least they were sitting in the audience, and I
    think they testified at a full committee hearing twice. So it
    is not that we haven't heard from mine owners. We hear from
    them all the time.
        Mr. Price. Will the gentleman yield?
        Mr. Payne. Absolutely.
        Mr. Price. I may be mistaken, but I don't think that we
    have heard from the industry on these bills. And I suspect you
    would agree that when comment is made about the industry, that
    they ought to be able to respond.
        Mr. Payne. Reclaiming my time, you are wrong. We have had
    the industry here and they have had an opportunity to respond.
    They have been here dealing with the mine safety, mines in
    general. They certainly didn't come here to talk about
    airplanes. So you know, they talk about mines.
        Let me just ask a couple of questions. Mr. O'Dell, you
    understand that the inspector general has objected to a
    provision in the legislation establishing the Office of
    Ombudsman. Why do you feel that this provision is necessary? Or
    why do you feel that the inspector general opposes it?
        Mr. O'Dell. If I may, sir, mining is a whole different
    world. I can tell you as a coal miner, and that is what I
    consider myself--a coal miner. When you are underground, it is
    a whole different world. In many mines which I worked in, we
    have more of a voice than some of those that work at non-
    represented mines, non-union mines. There is an intimidation
    factor. Miners need somebody that they can go to in the event
    that they need to seek help or talk to someone.
        The codeaphone that is put in place today has failed. It
    has failed drastically. This is no surprise to anybody. We have
    had miners who have used codeaphone whose identities have been
    revealed. We have had complaints called in that have not been
    acted upon in a timely manner. I am not telling you something
    that I have not talked to the agency about personally, because
    I have.
        I am not saying that they haven't tried to do things to
    improve because they have also done things to try to improve it
    as well. But I am saying the system that we have today is
    broken and it doesn't work, and this just seems like a good fix
    for all miners to be able to have an access to where they would
    have the confidence of somebody they could go to to help fix
    those problems.
        Mr. Payne. Thank you very much.
        Also, Dr. Weeks, you mentioned the two main areas that you
    would like to see proposed, and wished to speak to these:
    first, the revision of the dust standard from 2.0 to 1.0 for a
    10-hour shift; and the personal dust monitor. I just have a
    question regarding the level of dust.
        Is there any way--one of you, Mr. Wright or anyone that
    would like to answer it--is there any way that the dust levels
    can be reduced in the mines? Or is it just, you know, you are
    in the mines; you deal with dust, and there is no way to get
    around it. I mean, is there circulation or the possibility of
    that?
        Mr. Weeks. Yes. Dust can definitely be reduced. The methods
    for controlling dust in underground coal mines are very well-
    developed. It involves a combination of how you cut the coal,
    ventilation, work practices and use of water sprays. The dust
    control in metal/nonmetal mines is a different creature because
    the whole process is different. Individual processes can be
    controlled, for example drills and crushing machines and so on
    that Mike Wright would be better able to speak to.
        But it is the existence of these controls in coal mining
    that makes it possible to do better in terms of reducing dust
    exposure and preventing black lung. We need to make certain
    that they do get reduced.
        Mike, do you want to speak to that?
        Mr. Wright. Yes. Actually, the basics in an underground
    metal/nonmetal mine are not a lot different. It is basically
    ventilation and using water sprays on the drills. In the old
    days, they used to be jackleg drills which an individual miner
    would operate. These days, they tend to be jumbo drills which
    is basically a piece of mobile equipment.
        Mines also include just a wide net, so mines also include
    surface operations. We get pretty dusty conditions, for
    example, in some of the iron mines, the taconite mines and the
    surface operations where you are basically crushing the rock
    matrix. Unless you have good ventilation systems, unless you
    have wet-working in those systems, then those operations can be
    fairly dusty as well.
        But the control is pretty well-understood, and a lot of
    operators do it fairly well. Some don't. The problem with
    voluntary measures is that not everybody volunteers.
        Mr. Weeks. If I could add something to that, I just
    recently completed a review of dust exposure in metal/nonmetal
    mines. The exposure to silica in surface and underground mines
    is essentially the same. You get very high levels of exposure.
        One of the things that is missing on surface mines is that
    there is no X-ray surveillance program at all for miners in the
    metal and nonmetal sector. My concern is that we may have a
    large number of cases of silicosis among surface miners that we
    simply don't know anything about. They show up in a variety of
    ways.
        The whole program for preventing black lung in the coal
    mining industry does not exist for miners in the metal/nonmetal
    industry, and it should, in my opinion.
        Mr. Payne. [Off-mike] getting ready to do it. They found
    everything that industry wants there. I just wonder if at a
    place in Africa where there is a lot of [off-mike], is there
    any international organization that attempts to--if we have
    these problems here in the United States, I don't know what
    they are going to have in Mongolia.
        I mean, is there any national or international group that
    might be trying to promote, even from our administration,
    anyone to try to educate miners in other countries?
        Mr. Weeks. Yes, there are two groups that come to mind
    immediately. One is the International Labor Organization which
    sets standards for chest X-ray films for conducting
    surveillance for pneumoconiosis that would apply both to black
    lung and to silicosis. They are actively involved in
    disseminating information to basically everybody that they can
    get to.
        There is another group, the International Standards
    Organization, that has set standards for defining what
    respirable dust is. That is a very fine point and a
    technicality, but it actually turns out to be important. One of
    the things that the NIOSH criteria document does in
    recommending the lower exposure limit is adopt the ISO
    definition of what a respirable dust is.
        And there are a number of other international organizations
    that are active in this area as well.
        Mr. Wright. There is also a group called the International
    Federation of Chemical Energy, Mine and General Workers. That
    is an international labor body. It basically represents unions
    in those trades around the world, including mining unions. We
    actually have a fairly active program of working with that
    organization and working with miners in several different
    countries.
        I visited mines in Russia and in Poland, and members of my
    staff have visited mines in Kazakhstan, Sweden, Germany and a
    couple of other places. We have both been able to teach some of
    the techniques we use in the U.S. and we have been able to
    learn as well from really all those countries. So that kind of
    exchange is going on.
        Mr. Payne. Thank you very much.
        Yes, just to mention that there have been a number of
    letters in regard to this question about the mine owners not
    having an opportunity to have their points of view made. We
    have a copy of four letters from the different ones, the
    National Mine Association, the Iron Miners Association, the
    Industrial Minerals Association, the Detroit Salt Company.
        So I just want to let the other side know that the mine
    owners have not been shy, nor have they not known what is going
    on because they have certainly sent information to the
    committee on their point of view.
        Chairwoman Woolsey. Would the gentleman like those included
    in the record?
        Mr. Payne. I would appreciate it if they would be included
    in the record.
        Chairwoman Woolsey. Without objection.
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                    ------

        Chairwoman Woolsey. Now, for the closing remarks of Ranking
    Member Wilson.
        Mr. Wilson. Thank you, Madam Chairman.
        Indeed I appreciate, as the co-chair of the Mongolia
    Caucus, I unfortunately was not able to accompany Congressman
    Payne, but I know he did a great job in Ulan Bator. Also, I
    want to note that you gave very good information on HADA to
    promote health and safety as they develop their industry. I am
    very pleased that it is a joint South Carolina-California
    corporation, Fluor Corporation, which will be also providing
    expertise.
        Indeed, as we have discussed the issues today, I want to
    thank the chairwoman for indicating that we may get back
    together sometime to consider the issues in a committee
    meeting. I am always happy to be with this group. I would like
    to point out that particularly the offer to Mr. Stricklin,
    where you indicated in a very positive way, I thought, to go
    over the 16 provisions that he has concern about, that it might
    be very helpful to have a further hearing.
        Additionally, indeed I think it is very helpful to have
    someone here from the United Mine Workers. They were here at
    the prior hearing, and now they are here at this hearing after
    the bills have been introduced. But indeed, we have not heard
    from the Mining Association since the bills have been
    introduced.
        And I am going to be moving to include by unanimous consent
    certain statements and letters for the record, but I would
    point out that it is just so much more helpful when we can, as
    has been done today, very constructively ask questions. I think
    we have all learned in a very positive manner on different
    issues, but it is so much better that indeed we can ask
    questions and not just read some of the tomes that might be
    presented to us.
        So at this time, I would like to move unanimous consent for
    the statements from the National Mining Association, the
    International Minerals Association of North America, which may
    have already been included in the motion by Congressman Payne,
    and letters from the International Minerals Association of
    North America, the National Lime Association, the National
    Stone, Sand and Gravel Association, the Portland Cement
    Association, and the Salt Institute.
        Chairwoman Woolsey. Without objection.
        [The information follows:]

             Prepared Statement of the National Mining Association

        The National Mining Association (NMA) appreciates the opportunity
    to share our views on legislation that has been introduced to amend our
    nation's mine safety laws and the measure that was unanimously adopted
    by the Senate and overwhelming adopted by the House last year, the Mine
    Improvement and New Emergency Response Act of 2006 (MINER Act).
        NMA, as you know, worked toward the passage of the MINER Act and we
    continue to believe that its core requirements are sound. The MINER
    Act, which was endorsed by labor and industry prior to its passage
    little more than one year ago, has already contributed to significant
    success in improving safety. But much remains to be accomplished by
    both the Mine Safety and Health Administration (MSHA) and the industry
    to achieve full implementation.
        Since the MINER Act was signed into law on June 15, 2006, MSHA has
    taken aggressive action to implement its provisions. Industry has
    invested more than $250 million thus far complying with the act's
    mandates. Most importantly, mining operations are on track to return to
    year-over-year improvements in mining safety. (See below for a list of
    MINER Act accomplishments to date.)
        We believe that diverting attention and resources away from the
    critical task of fulfilling the mandates of the MINER Act because of
    the necessity to respond to an additional layer of statutory
    requirements could ultimately undermine the progress that has been made
    on miner training and other vital objectives of the act. To impose
    further legislation before the full impact of the original MINER Act
    can be comprehensively measured is premature. Consequently we urge that
    Congress defer consideration of these measures until all parties'--
    labor, industry, regulators and members of Congress--can fairly and
    independently analyze the MINER Act's impact.
        NMA also notes a similar caution shared by prominent mine
    engineering academics in their July 25, 2007 letter to the chairman and
    the ranking member of the House Committee on Education and Labor. The
    11 academics from leading schools of mine engineering warned against
    ``dramatically disrupting the very core of the industry'' with
    additional provisions at this time.
        Accompanying our statement is a critique of a number of provisions
    of the new legislation that we believe are unnecessary and possibly
    even counterproductive to our shared mission of improving mining
    safety. This statement highlights what we believe are some of the major
    flaws of the bills introduced as well as what is missing from the
    discussion.
        I. The addition of new regulatory requirements will create
    confusion and threaten continued progress on implementing the safety
    improvements required by the MINER Act.
        The S-MINER Act would create new requirements in these already
    difficult and challenging technology-forcing areas. For example, the
    bill would shorten deadlines by requiring that hardened ``leaky
    feeder'' electronic communications and tracking systems be installed in
    all underground coal mines within 120 days from the date of enactment.
    These premature changes threaten the real progress being made. If
    implemented, these new requirements may lead to the installation of
    ineffective technology. They also have the potential to strand
    significant dollars already invested by companies in safety
    improvements.
        II. The S-MINER Act circumvents notice and comment rulemaking,
    thereby preventing the development of sound safety and health standards
    and policies.
        Notice and comment rulemaking is a precept fundamental to the MINER
    Act and its predecessor statutes. The basic purpose of such rulemaking
    is to afford stakeholders the due process required by law by providing
    a reasoned forum that allows all interested parties to comment on
    proposed regulations. The process is designed to help governmental
    agencies such as MSHA collect the best available information so that
    the final regulations implemented are effective and fair. The S-MINER
    Act, and its related Miner Health Enhancement Act of 2007 (H.R. 2769),
    would circumvent this crucial rulemaking process in key areas.
        III. The S-MINER Act changes the roles and responsibilities of MSHA
    and NIOSH in a number of key respects. It also introduces into the
    safety process organizations unfamiliar with the mining industry.
        The S-MINER Act would radically change a number of key MSHA and
    NIOSH responsibilities. In our opinion, this will create regulatory
    confusion.
        The bill would turn this well-understood and effective standard-
    setting regime on its head by mandating that MSHA simply accept NIOSH
    recommendations. This would circumvent the current approval and
    certification process and would also undermine established protocols to
    ensure that products used in mines are safe.
        The bill also contains a provision requiring MSHA to contract with
    the Chemical Safety and Hazard Investigation Board to conduct ``special
    investigations'' of mine accidents. While the Board is knowledgeable
    and respected, it is unfamiliar with mining. We question whether the
    Board would have the technical knowledge capable of analyzing the
    complex hazards that are unique to this Industry.
        IV. The S-MINER Act will result in an administrative nightmare for
    MSHA and the industry.
        The S-MINER Act contains several provisions that are impractical.
    For example, it requires operators of all mines, both underground and
    surface, coal and metal/nonmetal, to notify the agency when every
    violation is abated. This would create an unnecessary burden for mine
    operators, especially since inspectors are at the mine virtually every
    day. An effective system to abate violations is already in place.
    Additionally, it would require all operators to notify MSHA of a number
    of incidents that are not likely to cause injury or are otherwise not
    life-threatening. Notifying the agency of near miss incidents or other
    events that are not clearly defined by the bill will lead to confusion,
    i.e., ``any other emergency or incident that needs to be examined to
    determine if mines are safe * * *''
        The bill would also require MSHA to randomly select and remove for
    testing five percent of the SCSR units at all underground coal mines
    every six months. This provision is ill-conceived. By removing from
    service SCSR units that are needed by working coal miners, it will
    exacerbate the existing shortage. Recognizing that the inspection
    system used in the past was flawed, MSHA recently introduced new
    quality control procedures to inventory and monitor SCSR units. These
    new procedures address the flaws and make these legislative
    requirements unnecessary.
        V. The S-MINER Act outlaws the use of belt air to ventilate the
    face at underground mines. As a result, it would severely diminish
    safety by prohibiting the use of a procedure critical to the safe
    operation of a number of underground mines.
        Belt air is critical to the development of underground coal mines
    in areas of significant overburden. In such deep mines, reducing the
    number of entries is an important precaution against the likelihood of
    dangerous roof falls and similar types of ground control events. This
    precaution, however, places a premium on the use of belt air for
    ventilating deep mines. It is also critical to ensure that a sufficient
    amount of air is available to dilute gas and dust.
        The MINER Act required MSHA to establish a Technical Study Panel to
    evaluate the use of belt air and belt flammability standards. The panel
    is in the final stages of its evaluation, and is on track to deliver
    its report to the Secretary of Labor by the end of the year, well
    within the date mandated by the MINER Act. The congressionally mandated
    panel should be permitted to complete its work and additional
    requirements related to the use of belt air should not be issued until
    the panel's report and recommendations are finalized.
        VI. The additional penalty provisions included in the S-MINER Act
    are draconian, unnecessary and unfair.
        The S-MINER Act would increase penalties, establish new
    requirements for ``pattern of violations,'' and restrict the ability of
    mine operators to contest inappropriate enforcement actions. These
    stricter enforcement provisions, which would apply to all mines, are
    unnecessary and will not contribute to improved health and safety.
        Contrary to the picture painted by the S-MINER Act, injury trends
    continue to improve. For example, within the coal industry the Total
    Reportable Incident rate over the past 10 years has improved by 45
    percent (7.90 to 4.37).
        VII. The S-MINER Act's one-size-fits-all approach fails to
    recognize that mines are unique. If enacted, this bill will result in
    many mines installing inappropriate or unnecessary technology.
        The S-MINER Act is prescriptive, as opposed to being risk-based, in
    design. It would mandate the use of technologies that may not be
    appropriate for all underground mines. Mine operators should not be
    required to introduce technology that is neither proven to be safe nor
    yet commercially available.
        The independent Technology and Training Commission, whose work is
    referenced in the summary documents that accompanied introduction of S-
    MINER Act, identified ``systematic and comprehensive risk management as
    the foundation from which all life-safety efforts emanate.'' The
    prescriptive nature of the bill ignores this independent recommendation
    and would confine MSHA and the industry to continuation of a one-size-
    fits-all approach.
        VIII. The Missing Pieces.
        Just as the S-MINER Act is burdened by the addition of premature
    requirements, it is weakened by the absence of provisions that could
    make significant contributions to mine safety.
    Substance Abuse Testing
        Neither the supplemental MINER Act nor the Miner Health Enhancement
    Act deal with the problem of substance abuse in our nation's mines.
    This glaring omission must be addressed if we are truly concerned about
    improving safety. While some companies, depending upon the jurisdiction
    within which they operate, can implement random drug and alcohol
    testing, this cannot be applied universally. Unfortunately, the absence
    of mandatory, random drug and alcohol testing creates an unacceptably
    permissive environment in which impaired individuals are free to
    endanger co-workers at facilities where random testing is prohibited by
    jurisdictional or company policy. This practice cannot be permitted to
    continue.
        All miners deserve to know that they are working in an environment
    where they need not concern themselves with safety consequences arising
    from another employee being impaired due to substance abuse. Last year
    we promoted, during consideration of the MINER Act, inclusion of
    language providing authority for mandatory, random drug testing
    throughout the industry. Unfortunately, this sensible precaution was
    opposed by some in the Senate and was not included in the bill that
    came before the House.
        Recognition of this problem is long-overdue and we ask that if a
    bill emerges from this Committee it include authority for operators to
    institute mandatory, random drug and alcohol testing programs to
    safeguard their employees.
    Mandatory Health Surveillance
        Section 7 of the S-MINER Act addresses what some believe is
    necessary to bring about further reductions in the percentage of coal
    miners developing coal workers pneumoconiosis (CWP) or black lung
    disease. We, like you, support efforts to eradicate CWP but believe the
    objective of the bill's authors will never be achieved so long as the
    x-ray surveillance program under Section 203(a) of the act remains
    voluntary.
        Recently, the National Institute of Occupational Safety and Health
    (NIOSH) reported on cases characterized as ``rapid progression'' CWP.
    The results of the NIOSH study are of concern to all of us and while we
    need to better understand the scientific basis for these
    determinations, one fact is glaringly obvious--participation in a
    mandatory x-ray surveillance program might have prevented progression
    of the disease in some of these cases.
        Since its inception, 30-40 percent of those eligible to participate
    in the NIOSH surveillance program have voluntarily elected to do so.
    Just as operators must do a better job ensuring that dust controls are
    in place and are maintained, so too must we recognize the role of
    surveillance in an overall prevention strategy.
        Eliminating black lung will not occur so long as the x-ray
    surveillance program remains voluntary. If a bill emerges from this
    committee it must make participation in the program mandatory.
    Inspection Activity & Resource Allocation Decisions
        Under the Mine Act, MSHA is required to inspect every underground
    mine four times per year and every surface mine twice per year.
    Contrary to congressional expectations, these inspections do not
    consist of semi-annual or quarterly visits of a few days' duration.
    Rather, they can, and oftentimes do, mean a continual presence at the
    mine throughout the year. MSHA's statistics show that a large
    underground coal mine can have as many as 3,000-4,000 on-site
    inspection hours a year.
        Moreover, in addition the agency also conducts thousands of what it
    calls ``spot'' inspections aimed at measuring compliance with standards
    governing specific conditions or practices.
        Under MSHA's regulations mine operators must report immediately all
    accidents and report on a quarterly basis all lost time injuries and
    reportable illnesses directly to the agency. This has resulted in the
    developed of an extraordinary database that ought to be used to guide
    inspection activity and allocate inspection resources. It is far more
    likely that inspection activity based on documented need and analysis
    ill be more effective than inspection decisions based on entirely
    subjective or ambiguous criteria or on rote compliance with mandates of
    the Act. MSHA must be authorized to utilize the information available,
    all of which it compiles and maintains, to identify problem areas and
    allocate its inspectorate accordingly.
        Working together we believe a system can and must be developed that
    would establish a mechanism to reduce the number and scope of
    inspections based on performance and the adoption of verified and
    objectively administered performance goals.
    Conclusion
        Today mine safety and health professionals face challenges far
    different from those anticipated when our nation's mine safety laws
    were first enacted. Difficult geological conditions, faster mining
    cycles and changes in the way work is conducted introduce potential
    complications whose solution requires new and innovative responses.
    Today's challenge is to analyze why accidents are occurring at a mine,
    then use that analysis as a basis for designing programs or techniques
    to manage the accident-promoting condition or cause.
        Regrettably, the bills before the committee will not accomplish our
    shared goal. Rather, their intention is to try to force improvement
    through the imposition of punitive measures that bear little
    understanding of the complexities of today's mining environment.
    Eliminating stakeholder participation in the regulatory process will
    not improve safety, applying one-size-fits all requirements will not
    improve safety nor will imposing artificial deadlines that ignore the
    need to develop technology and assure its safe use.
        We stand ready to work with the members of the committee to analyze
    what further statutory amendments are warranted once operators have
    been afforded the opportunity to fully implement the requirements of
    the MINER Act. To do otherwise is premature, unnecessary and
    unwarranted.
    MINER Act Accomplishments
        The following is a list of industry accomplishments achieved to
    date under the MINER Act and voluntarily:
         86,000 new self-contained self-rescuers (SCSR) have been
    placed into service in the last 12 months and more than 100,000 will be
    added in the coming months.
         All 55,000 underground coal miners have and will continue
    to receive quarterly training on the donning and use of SCSRs.
         With the recent approval of expectation training units,
    all miners will begin to receive annual training with units that
    imitate the resistance and heat generation of actual models.
         Mines have installed lifelines in both their primary and
    secondary escape-ways and emergency tethers have been provided to
    permit escaping miners to link together.
         Underground coal mines have implemented systems to track
    miners while underground; underground coal mines have also installed
    redundant communication systems, and new systems to provide post-
    accident communication continue to be tested.
         All 550 underground coal mines have submitted plans to
    provide post-accident breathable air to sustain miners that are unable
    to escape and await rescue.
         Thirty-six new mine rescue teams have been added or are in
    the planning stages, even before MSHA initiates the rulemaking required
    by the act.
         These steps and others taken beyond the requirements of
    the MINER Act have resulted in a safety investment of approximately
    $250 million for NMA member companies alone.
         Even before the enactment of the MINER Act, NMA and its
    members engaged the National Institute for Occupational Safety and
    Health (NIOSH) and Mine Safety and Health Administration (MSHA) in a
    mine emergency communications partnership.
         NMA members have volunteered their mines for testing
    tracking and communications systems. Some of these technologies hold
    great promise; however they are some years away from readiness for mine
    application.
                                     ______

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                    ------

        Mr. Wilson. At this time, I again appreciate having the
    hearing today. I think we have all learned a lot. I hope we
    have another hearing prior to going to markup.
        Chairwoman Woolsey. I want to thank our distinguished panel
    of witnesses for testifying here today on the technical aspects
    of H.R. 2768 and H.R. 2769. The legislation before us today
    will ensure that the provisions of the MINER Act work and will
    also add additional safeguards for miners.
        Sadly, the accidents at Sago and Aracoma, Alma and Darby
    could have been prevented; 19 miners could have been saved. As
    I stated at the beginning of the hearing, we will continue to
    work with all interested parties to make sure that these bills
    are the best, the very best that they can be. But delay for
    delay's sake is absolutely unacceptable, especially when
    miners' health and safety is at stake.
        I thank you again for coming.
        As previously ordered, members have 14 days to submit
    additional materials for the hearing record. Any members who
    wish to submit follow-up questions in writing to the witnesses
    should coordinate with majority staff within 14 days.
        Without objection, the hearing is adjourned.
        [Supplemental materials submitted for the record by Ms.
    Woolsey follow:]
                  American Society of Safety Engineers,
                                       1800 East Oakton Street,
                                   Des Plaines, IL, September 19, 2007.
    Hon. George Miller, Chairman,
    Committee on Education and Labor, U.S. House of Representatives, 2181
            Rayburn House Office Building, Washington, DC.
    RE: ASSE Comments on Mining Safety Reform Legislation (HR 2768 and HR
        2769)

        Dear Chairman Miller: On behalf of the 32,000 member safety, health
    and environmental (SH&E) professionals of the American Society of
    Safety Engineers (ASSE), we respectfully ask that you and the members
    of the Committee on Education and Labor consider the following comments
    on the two legislative initiatives aimed at improving mine safety
    currently pending before the Committee--the Supplemental Mine
    Improvement and New Emergency Response Act of 2007 (S-MINER) (H.R.
    2768) and the Miner Health Enhancement Act of 2007 (H.R. 2769).
        Our comments reflect directly the experience and expertise of
    leading safety professionals in the mine industry who are members of
    ASSE's Mine Practice Specialty. The Mine Practice Specialty is one of
    thirteen practice specialties organized to help advance common
    principles of safety, health and environmental management to protect
    workers in all workplaces. Like all Americans, our member mine safety
    professionals are deeply troubled by any death in a mine. They go to
    work each day to do all they can to prevent these tragedies. Like you
    and the Committee members, they want to make sure all that can be done
    to prevent the loss of life and injuries in this nation's mines is
    accomplished.
    Needed: An Overall Mine Industry Risk Analysis
        Most of what is proposed in HR 2768 and HR 2769 will help prevent
    loss of life and injuries. Some provisions are not realistic given the
    current capabilities of the Mine Safety and Health Administration
    (MSHA) and the National Institute for Occupational Safety and Health
    (NIOSH) and may take away from the ability of these agencies to advance
    safety in realistic ways. A few provisions, though not directly safety
    issues, challenge the due process rights of mine owners and may be
    unnecessarily overbearing for the great majority of mines that work
    safely. In that regard, it is also important to note that most mines
    are small businesses. Applying MSHA's definition for a small mine
    (fewer than 20 workers), about 56 percent were small mines in 2002.
    Using the Small Business Administration's definition (fewer than 500
    employees), 95.5 percent of mines are considered small businesses.
        Our member mine safety professionals strongly believe, however,
    that this legislation--as does the overall mine safety debate--misses a
    necessary approach to achieving safer mines. As our members see it,
    each time a mine disaster occurs, another serious mine safety problem
    comes to light that turns out to have been a known significant risk
    within the mining community. For example, underlying the specific
    failures that led to the Sago disaster was the industry's quick rush to
    opening long-closed mines due to the improving market for coal. In the
    most recent tragedy at Crandall Canyon, the mine's catastrophic failure
    may well have been impacted by flaws in the mining and roof control
    plans. When companies engage in such a meticulous process as retreat
    mining, it becomes critical to have mine plans examined and reviewed by
    experts with the requisite knowledge and experience to detect potential
    concerns. This may prove to be more an issue of inadequate support
    services and oversight than regulatory inspections.
        This nation's mines are already the most regulated workplaces in
    America. When it is estimated that OSHA would need about 24 years to
    inspect every general industry and construction workplace in America
    once, MSHA inspects each mine in this nation multiple times each year.
    No doubt, specific improvements in inspections, enforcement and an
    emphasis on improved technology and rescue capabilities are needed. We
    urge the Committee, however, also to look beyond specific fixes to
    establishing an overall approach to assessing safety and health risks
    across the mining industry that would be similar to the way a safety
    professional approaches a troubled worksite.
        When a safety professional enters a worksite, professional training
    dictates that the first task is to look throughout the workplace and
    make an assessment of the overall safety and health risks. By
    developing risk-based priorities, he is able to make the most effective
    use of his resources to address the issues that most directly put
    workers in peril. Focusing too soon on specific risks could easily
    overwhelm the crucial need for an overall understanding of the relative
    risks workers face. Once an overall assessment is accomplished, the
    safety professional will address each risk in the order of their
    relative danger to workers, with the resources available to address
    each risk in mind.
        ASSE believes that, at this time especially, the same kind of
    overall safety analysis is needed for the mine industry as a whole. We
    urge this Committee, through an amendment to this legislation, to task
    NIOSH to convene a stakeholder symposium with the specific goal of
    conducting a mine safety risk analysis for the mine industry that would
    identify the most dangerous risks and establish a hierarchal ranking of
    the severity of those risks so that the focus of mine owners, the
    resources of MSHA and NIOSH, and the actions of Congress can be
    targeted to the most dangerous risks first. Such an analysis would
    create the foundation for what safety and health professionals would
    hope could be the establishment of a risk-based approach to improving
    those key issues that have proven over the past twenty months to expose
    underground miners to the greatest peril.
        From our members' viewpoint, the majority of workplaces that fall
    under the authority of the Mine Safety and Health act of 1977 (Mine
    Act) share a risk profile that has more in common with heavy highway
    construction than with underground mining. They know that sand pits,
    quarries and other surface mining activities have maintained accident
    rates far lower than manufacturing and construction for several years.
    An industry-wide safety analysis could very well result in an
    understanding for the need for Congress to re-open the Mine Act to
    readjust the direction and scope of mine regulation so that the
    resources of MSHA especially could focus more directly on the elements
    of the industry and the risks that truly represent a clear and present
    danger to miners. Further emphasis on the broad scope of mining without
    consideration of these risks restricts MSHA from properly allocating
    and directing resources to the areas where they can do the most good.
        This suggestion represents sound loss-prevention theory practiced
    by safety and health professionals in every kind of workplace,
    especially one troubled by injuries or loss of life. Given the
    repetitive tragedies that the mine industry has faced recently, the
    same overall approach is needed. ASSE and its members stand ready to
    help this Committee develop this kind of strategy.
    Comments on S-MINER Act (HR 2768)
                Supplementing Emergency Response Plans
        ASSE greatly understand the urgency with which the provisions aimed
    at improving the chance that miners will survive a mine accident have
    been included in this bill. Each provision is worthy of further action,
    as each has the potential to save lives. Reiterating our previous
    comments, however, we urge you to amend the bill to make their
    implementation dependent on an industry-wide risk analysis to be
    conducted under the direction of NIOSH before placing these provisions
    into law. Our fear is that all these activities, if required in the
    time frames indicated, will overwhelm even the best efforts of NIOSH
    and MSHA to bring them about.
        Provisions included in this section requiring the establishment of
    an advisory committee to determine applicability of regulations to
    underground metal and nonmetal mines are consistent with ASSE's
    proposal. We hope that Congress will ensure that NIOSH plays a key role
    in this evaluation since it is best situated to understand the many
    distinctions between the coal and metal/nonmetal underground operations
    that led MSHA to create different sets of standards for these
    commodities in the first place--non-combustible ore and dusts, fewer
    gassy mine issues, natural ventilation in some mines, and differences
    in mining methods, for example.
        Clearly, some provisions included in the section Supplementing
    Emergency Response Plans are needed immediately, like ensuring that
    mines have post-accident communication systems meeting the most
    effective systems currently used, ensuring safety communications among
    personnel between mine shifts, and requiring 6-month self-rescue device
    inspections and notification. For other provisions, NIOSH and MSHA will
    find it difficult to balance the desire to meet the directions given
    here with the realities of technology and their resources. For example,
    while it is laudable that the bill tasks the National Academy of
    Sciences with a study of lightening in mining, it is doubtful that mine
    inspectors or mine owners will be able to carry out the bill's
    provisions aimed at protecting miners. Each mine will have unique
    vulnerabilities to lightening, most of which we fear will be
    undiscoverable even under the best intentions. As safety professionals,
    our members are consistent in their dedication to using whatever
    knowledge and technologies are available to protect miners. But they do
    understand the frustration of being tasked to address relatively small
    risks when more pressing, even immediate risks need to be fixed.
        Technology and mine emergency health and safety research
    priorities--ASSE cautions against an effort by Congress to set research
    agendas without the willingness to fund additional research beyond what
    NIOSH is already undertaking. Each technology the bill would require
    NIOSH to give due consideration does deserve more research. However,
    NIOSH has already undertaken what we believe is a highly competent
    review of its research priorities in mining through the National
    Occupational Research Agenda (NORA). Under NORA, a Mining Sector
    Council is already undertaking the kind of research analysis needed to
    set priorities. Congressional action should not detract from that
    effort.
                Supplementing Enforcement Authority
        Authority of inspectors--ASSE supports provisions that clarify the
    authority of MSHA and its personnel to direct rescue and recovery
    activities. In any rescue and recovery operation, a clear authority to
    take responsibility is always needed.
        Transition to a new generation of inspectors--ASSE commends
    Congress for addressing the loss of experienced mine inspectors. The
    mine safety community shares this concern, as MSHA is projected to lose
    half of its current workforce in the next two to five years. The bill's
    provisions to ensure a transition to a new generation of inspectors
    will help MSHA meet this daunting problem.
        Miner ombudsman--As written, ASSE cannot support provisions
    requiring creation of the Office of Miner Ombudsman within the
    Department of Labor (DoL). Given the discord and lack of trust that now
    exists between workers and the mining industry and MSHA, we fully
    understand the need for some assistance in representing those interests
    wanting to make mines safer and healthier for workers. However, much of
    what this position hopes to achieve is already addressed in MSHA
    regulations (some specifics?). We also do not believe that simply
    adding another position to an infrastructure for complaints, even if it
    is not working as well as it should, would guarantee the results the
    bill understandably wants to achieve. We urge you and the Committee to
    consider another approach.
        What is needed in the mining industry is less another advocate than
    someone who could help resolve the various differences that separate
    not only miners from the industry and MSHA, but also industry from
    MSHA. We urge you to consider the creation under DoL of an independent
    office for arbitration of mining conflicts. Under rules established by
    the American Arbitration Association or similar organization, such an
    office could serve as a non-mandatory middle ground to resolve issues
    beyond MSHA's failure to listen to miner complaints about mine hazards.
    Other problems plague the industry and take away from effective safety
    enforcement, including inspectors with inadequate understanding of
    their responsibilities and small business mine owners feeling helpless
    in the face of a legal process easily brought to bear by MSHA. As it
    does in other industries, arbitration could very well prove to lessen
    the costs of enforcement. If such an office were staffed with mine
    safety and health expertise, as current provisions in the bill require
    an ombudsman to be, we believe the current difficulties in identifying
    and addressing mining risks could be improved.
        Pattern of violations--While the intent of these provisions is well
    meaning, ASSE cannot support the provisions addressing pattern of
    violations. We would hope that Congressional efforts could focus on
    changes that will directly advance safety. From the experience of our
    members, MSHA already uses its pattern of violations powers and
    recently published a policy document to explain how patterns will be
    determined with more precision. A new penalty component is not
    necessary at this point, given the impact that a pattern finding will
    already have on mine operations. It would also be redundant given
    MSHA's new ``repeat violation'' penalty criterion in 30 CFR Part 100.
    MSHA added this in an effort to go beyond the dictates of the Mine
    Improvement and New Emergency Response (MINER) Act in order to heighten
    penalties for all classes of violations that indicate a pattern or
    practice of certain types of safety or health deficiencies. Consistent
    with our overall comments, we would hope that the attention of both
    Congress and MSHA could be directed to more pressing needs for
    improvement. This is not one of those areas.
        Notification of abatement--Given recent history, believing that all
    personnel need to be removed from a mine following an operator's
    failure to notify MSHA that any violation has been abated is
    understandable. However, not every violation in a mine threatens lives
    and, under current law, MSHA already is empowered to impose a $6,500
    per day penalty for failure to abate. It also may issue orders under
    Section 104(b) of the Mine Act that trigger withdrawal of miners from
    all or part of a mine under such circumstances. Also, our members
    report that MSHA inspectors are generally quick to revisit the mine to
    determine whether abatement has occurred. To ensure that this provision
    is targeted to truly threatening situations, where MSHA's resources
    should be targeted, we urge that the requirement to remove personnel
    following failure to abate be limited to citations that are significant
    and substantial.
        Failure to timely pay penalty assessments--ASSE has no position on
    provisions aimed at ensuring timely payment of penalty assessments.
    This is not directly a safety issue. Our members, however, report that
    the difficulty often appears to be the MSHA's inability to ensure that
    penalties are collected and that adequate communications exist with the
    Department of Justice to ensure enforcement. While we understand the
    frustration in Congress with the failure to correct this problem, this
    provision could very well result in the closure of an entire mine over
    non-payment of a $112 penalty. Given the administrative problems MSHA
    has demonstrated in enforcing penalty assessments, such a result may be
    too harsh.
        Penalties--The appropriateness of the various penalty provisions
    contained in the bill is beyond ASSE's expertise. In general, we do not
    take positions on what amounts are appropriate both to penalize those
    who violate safety and health laws and to ensure an employer's
    commitment to safety and health in the future. We would hope this issue
    could be the subject of research by NIOSH so that penalties can be
    constructed in a way that effectively brings about safe and healthy
    mines. Until research can provide that insight, it is difficult for our
    members to determine effective penalties.
        In general, however, penalties that fail to cause mine operators to
    protect miners adequately are too small, and penalties that cause a
    mine owner to give up a business when conditions are correctable and
    the owner has demonstrated an overall commitment to operate safely are
    too large. From ASSE's viewpoint, a safety and health professional's
    work is to protect workers and property and to help a business do well.
    Good safety has a direct and positive effect on the bottom line of any
    business, including mines. We urge you and the Committee to keep that
    fundamental principal to safety in mind when considering appropriate
    penalties.
        In that light, our members disagree with the elimination of
    criteria that consider the impact of penalties on a company's ability
    to remain in business. Small 5-person mines, for example, should not be
    faced with the same minimum penalties as multi-national corporations
    when it comes to citations. A case-by-case analysis must be retained at
    all levels of enforcement.
        Federal licensing advisory committee--ASSE applauds the inclusion
    of this provision in the bill, supports its enactment and respectfully
    asks that ASSE members be included in such an advisory committee. Many
    states already provide for licensing of certain categories of miners,
    foremen and those engaged in special activities, including blasters and
    electricians. Federal licensing could enhance portability of skills and
    give assurances to mine operators of employee competence. We urge
    inclusion of appropriately mine safety and health personnel who have
    the needed experience and have achieved appropriate accredited
    certifications such as the Certified Safety Professional (CSP),
    Certified Industrial Hygienist (CIH) or Certified Mine Professional
    (CMP). These certifications would fit well any federal licensing
    program.
                Rescue, Recovery and Incident Investigation Authority
        Emergency call center/contact information/mine location maps--ASSE
    supports provisions requiring MSHA to staff with qualified personnel a
    24/7 emergency call center as well as the detailed contact information
    of rescue and mine personnel. Requiring maps of all operating and
    abandoned mines to be maintained on the DoL website is also a positive
    step forward. We do, however, question the need to provide search
    capabilities that allow mines to be located by congressional district.
    While a small point, anything that can be done to de-politicize this
    nation's commitment to mine safety needs to be taken. The other search
    criteria are useful enough for those who might know congressional
    districts.
        Required notification of emergencies and serious incidents--ASSE
    supports provisions clarifying that certain categories of ``accidents''
    could be reported within one hour, rather than within 15 minutes. In
    our members' experience to date, the15-minute rule is already proving
    somewhat infeasible, especially for underground operations with limited
    personnel available to render assistance while also being able to
    communicate with MSHA. Perhaps Congress can revisit this issue in
    general and take testimony about the practical impact of the ``15-
    minute'' rule, especially now that MSHA's final report in the Sago case
    has indicated that the notification of MSHA was not a causal or
    indirect factor in the loss of life at that operation.
        Emergency medical response--ASSE supports provisions intended to
    improve emergency medical response capabilities following mine
    emergencies. As we have expressed with other provisions, however, we
    urge that implementation of these provisions be done in the context of
    a thoughtful analysis of all the issues impacting the survival of
    miners and the capabilities of MSHA.
        CSB--ASSE fully supports the good work of the U.S. Chemical Safety
    and Hazard Investigation Board's (CSB) efforts in helping industry
    understand and address chemical safety issues. We also understand the
    implied goal here of having for the mining industry what exists for the
    chemical industry and, with the National Traffic Safety Board (NTSB),
    for transportation--an independent authority with expertise to give
    industry unbiased assessments of accidents to help ensure they do not
    reoccur. Nevertheless, we cannot support this specific means of
    achieving that aim. CSB has specific capabilities in addressing
    chemical risks, as the NTSB does in transportation. It would only
    dilute that capability to ask it to become expert in mining. We urge
    you and the Committee to consider other alternatives, perhaps even
    establishing a separate independent agency to take on this work.
                Respirable Dust Standards
        The need to set appropriate crystalline silica and respirable coal
    dust standards is clear and long overdue. While the desire to set
    standards legislatively is attractive given the failure of OSHA and
    MSHA to move these issues forward, ASSE must be concerned with setting
    a precedent in dispensing with rulemaking, as the bill would do. ASSE's
    own proposal to update exposure limits urges use of negotiated
    rulemaking. Even under the best circumstances, setting an exposure
    limit is difficult given the litigious environment surrounding the
    safety and health field. Providing a means for all stakeholders to
    participate in a process will help disarm those who are intent on
    inhibiting any forward movement on exposure limits. In addition, the
    provision that specifies the sampling protocol is redundant and could
    cause confusion. NIOSH currently has sampling methods established for
    monitoring the respirable silica dust for both coal mines as well as
    other mines (NIOSH method 7603 and method 7500). These methods are
    effective when used in conjunction with good industrial hygiene
    practices--initial evaluation to determine those areas and operations
    to be tested, personal monitoring of representative operations for two
    individuals in the area in case of equipment malfunctioning or
    tampering, full shift sampling, and use of the specified number of
    blanks per samples collected to correct for contamination.
    Comments on Miner Health Enhancement Act of 2007 (HR 2769)
                Air Contaminants
        ASSE fully agrees that the existing health standards now enforced
    by MSHA are outdated and are in need of revision. For the metal/
    nonmetal sector, MSHA had incorporated by reference the 1973 version of
    the American Conference of Governmental Industrial Hygienists' (ACGIH)
    Threshold Limit Values and the coal sector is governed by the 1972
    TLVs. ASSE has long supported a comprehensive overhaul of both MSHA and
    OSHA permissible exposure limits (PELs) and has suggested that this be
    done through negotiated rulemaking, as discussed above. We maintain
    that this is preferable to dispensing entirely with rulemaking and
    simply adopting the existing and future NIOSH Recommended Exposure
    Limits (RELs).
        Although NIOSH is well-qualified to make recommendations on
    appropriate health standards, these provisions are legally flawed
    because it would render the Administrative Procedure Act a nullity for
    the mining industry, depriving its members of their due process rights
    to be part of the rulemaking process through notice-and-comment
    standards development, as required by federal law. A simple fix to this
    problem is appealing, but simply mandating a solution would set a
    harmful precedent for avoiding formal rulemaking on other subjects
    relative to occupational and mine safety and health. The rulemaking
    process is one of the key mechanisms for ensuring that appropriate
    technology and sound science are recognized when setting requirements
    that carry heavy civil and criminal sanctions.
                Asbestos
        With respect to provisions intended to update MSHA's asbestos
    standard, ASSE urges caution in moving forward legislatively. ASSE
    participated in the ongoing MSHA rulemaking on this subject and fully
    supported adoption of the OSHA PEL by MSHA. Since that rule is near
    completion, it would be difficult to abandon the regulatory
    administrative record that been created and substitute congressional
    fiat when dealing with the technological, scientific and geological
    issues related to sampling, analysis and mineral definitions that are
    so important when measuring asbestos in an environment containing
    naturally occurring non-asbestiform minerals. These provisions should
    be replaced with provisions mandating that MSHA complete its
    rulemaking.
                Hazard Communication
        ASSE understands the bill's intent to require MSHA to move forward
    in advancing hazard communications. However, the bill misses an
    opportunity to help the mining industry take the lead on an initiative
    that will bring it in line with the world's economy. Instead of
    requiring the agency to apply provisions of its October 2000 interim
    final rule, which was modeled on the now outdated OSHA HazCom Standard
    at 29 CFR 1910.1200, Congress should be requiring MSHA to look forward.
    The bill should require MSHA to begin revision of its HazCom standard
    (30 CFR Part 47) to adopt the Global Harmonization Standard (GHS),
    which is already under consideration by OSHA. It is critical for all
    sectors of American commerce to be able to market its products on a
    global basis. Mining cannot be left behind, and allowing it to do so
    makes little sense given the multi-national ownership of many U.S.-
    based mines.
    Conclusion
        The mining industry as a whole has made significant advances in
    mine safety since enactment of the Mine Act in 1977. Although the last
    several years have been marred by several high-profile underground coal
    mine disasters, both coal and metal/nonmetal fatalities and injury
    rates have been steadily declining. More focus in preventing deaths and
    injuries in minds is needed, however, and ASSE is committed to working
    with Congress and MSHA to further enhance mine safety and health
    through proactive initiatives and programs that can protect miners
    while also giving mine operators the tools they need to implement best
    practices and the latest technology.
        ASSE was active during consideration of the MINER bill and in the
    MSHA oversight hearings during 2006. The Administrator of ASSE's Mining
    Practice Specialty, Michael Neason, provided helpful testimony before
    the Senate Health, Education, Labor and Pensions Committee on the Sago
    tragedy from the perspective of a mine safety expert. ASSE again offers
    the expertise and experience of its members in the event that the
    Committee holds mine safety hearings. ASSE and its members are pleased
    to be able to work with Congress to achieve our mutual goal of helping
    ensure that every miner has a chance every day to go home safe and
    healthy to their families.
                Sincerely,
                                      Michael W. Thompson, CSP,
                                                             President.
                                     ______

                                                        March 24, 2008.
    Hon. Joe Wilson,
    U.S. House of Representatives, 212 Cannon House Office Building,
            Washington DC.
        Dear Congressman Wilson: The Miner Health Enhancement Act of 2007
    (H.R. 2769) and the Supplemental Mine Improvement and New Emergency
    Response Act (S-MINER) of 2007 (H.R. 2768) raise serious concerns for a
    broad spectrum of industries that are strongly committed to safety and
    health in mines and provide jobs and resources that contribute to
    America's homes, schools, hospitals, businesses, consumer and
    industrial products, and roads.
        The Mine Improvement and New Emergency Response (MINER) Act, which
    garnered overwhelming bi-partisan congressional support and was
    endorsed by labor and industry prior to its passage little more than
    one year ago, has already contributed to significant success in
    improving safety. But much remains to be accomplished by both the Mine
    Safety and Health Administration (MSHA) and the industry to achieve
    full implementation. Diverting attention and resources away from the
    critical task of fulfilling the mandates of the MINER Act towards an
    additional layer of statutory requirements could ultimately undermine
    the progress that has been made on miner training and other vital
    objectives of the act.
        Since the MINER Act was signed into law on June 15, 2006, MSHA has
    taken aggressive action to implement its provisions. Industry has
    invested more than $250 million thus far complying with the act's
    mandates. Most importantly, mining operations are on track to return to
    year-over-year improvements in mining safety. To impose further
    legislation at this time is premature, when the full impact of the
    original MINER Act cannot yet be comprehensively measured. Further, and
    as explained in the enclosed paper, a number of the provisions of the
    new legislation are unnecessary and could be counterproductive to our
    shared mission of improving mining safety.
        Safety is, and will continue to be, the highest priority of our
    industries. Thank you for your consideration of our concerns with the
    pending legislation.
                Sincerely,
                Industrial Minerals Association--North America,
                                     National Lime Association,
                                   National Mining Association,
                     National Stone, Sand & Gravel Association,
                                   Portland Cement Association,
                                            The Salt Institute.
                                     ______

     NIOSH Comments on Mandatory Participation in the Coal Workers' Health
      Surveillance Program, Confidentiality Issues, and Potential Special
                                  Protections

        Mandatory Participation: Medical surveillance is an important tool
    for disease prevention. Identifying sentinel cases can motivate actions
    to improve work conditions and better protect other workers. Also,
    early disease identification can lead to actions to reduce or eliminate
    dust exposure for the affected individual, hopefully improving his or
    her health outcome. Thus, on the surface, mandatory participation might
    seem like a positive step. However, the situation is more complex and
    there would be significant issues that would need to be addressed
    before instituting mandatory participation in the Coal Workers' Health
    Surveillance Program.
        Steps would need to be taken to ensure that reduction of dust
    exposure, rather than medical screening, remains the first concern. The
    most effective means for eliminating coal workers' pneumoconiosis (CWP)
    is preventing dust exposure. Simply identifying workers who already
    have disease does not address this root issue. Furthermore, removing
    workers who already have disease from exposure will not fully prevent
    disease progression, so some individuals would still experience
    symptomatic disease. Thus, the primary focus in prevention should be to
    reduce dust exposure, not screen for disease after the fact.
        There would also need to be a full understanding of how any
    mandatory federal x-ray program would impact state workers'
    compensation systems. For example, it has been our impression in at
    least one state that miners are reluctant to participate in
    surveillance and participation rates are low because participation
    might adversely impact on the ability to receive compensation for CWP.
    A miner may be required to file for compensation within a certain
    period or lose the right to file based on an x ray showing some disease
    and be paid according to the level of disease shown at that time even
    though the disease will often progress.
        In addition, any program would have to take into consideration the
    ability of miners to opt out in certain circumstances. For example,
    there are female miners in their child bearing years. Such miners might
    want to opt out of x-ray screening out of concern for adverse
    reproductive outcomes. Even a ``mandatory'' surveillance program would
    need to make allowances for such situations by providing parameters for
    miners to opt out of having x-rays.
        In addition to these issues, any mandatory surveillance program
    should also address potential interventions that may be needed as a
    result of the x-ray program. For many coal miners, work in the mining
    industry provides the best and sometimes the only option for employment
    in their localities. Mandatory surveillance would ideally need to be
    paired with programs to help miners with disease remain in the work
    force and maintain their financial status.
        A final concern is that mandating participation in x-ray
    surveillance would result in a marked increase in the human and
    financial cost of the coal workers' x-ray surveillance program.
    Significant additional resources would be needed to take on a project
    of this magnitude.
        Thus, it is not entirely clear that mandating participation in
    surveillance by miners is an optimal approach for preventing CWP.
    Furthermore, there would be significant issues and concerns about this
    approach. Also, additional interventions would need to be undertaken to
    mitigate negative impacts of mandatory surveillance.
        Confidentiality Issues: The present Act requires the mine operator
    to pay for surveillance chest films. This leads to the mine operator
    having a contract relationship with the x ray facility performing chest
    films. Depending on the billing information provided, mine operators
    often know which miners have undergone x-ray screening. This leads to
    concerns about confidentiality, especially in small work forces.
        Another area of potential concern is leak of information from
    facilities performing x-rays, especially in small communities.
        A known loss of confidentiality occurs when affected miners exert
    their rights for transfer to low dust jobs. This necessitates
    communication of their condition to mine operators. Fear of
    consequences may be one reason for the relatively low number of miners
    entitled to transfer rights who take advantage of them.
        Potential Special Protections: Given that a major concern for
    confidentiality in the current program is the financial and contractual
    relationship between mine operators and x-ray facilities, measures
    should be taken to better separate these parties. Perhaps mine
    operators could pay into a fund, with the amount based on number of
    miners employed. The fund operator could then contract with x-ray
    facilities, removing the direct link to the mine operator.
                                     ______

    Technical Assistance Comments on H.R. 2678 and H.R. 2679, Submitted for
                     the Record by Jeffery L. Kohler, Ph.D.

        The following technical assistance comments on H.R. 2678 and H.R.
    2679 are in response to a written request, which was received on July
    30, 2007, from the House Committee on Education and Labor. In that
    request, the committee asked NIOSH to provide written technical
    comments on the matters covered by the Mine Safety and Health
    Administration's (MSHA) written statement to the committee, dated July
    26, 2007, that fall within NIOSH's area of responsibility and
    expertise. The Administration has not formulated a position on the
    legislation, but these comments provide NIOSH's answers to questions of
    a technical nature that fall within NIOSH's area of responsibility and
    expertise, including post accident communications, underground refuges,
    mine seals, ventilation controls, belt air, and the self-contained
    self-rescuer (SCSR) inspection program.
    Section 4(a), Post Accident Communications:
        The National Institute for Occupational Safety and Health (NIOSH)
    shares the Mine Safety and Health Administration's (MSHA) vision of
    completely wireless systems, which do not have any vulnerable
    infrastructure within the mine, and we continue to invest in research
    leading toward such systems. Our research, however, indicates that wave
    propagation characteristics in underground coal mines, combined with
    energy limitations in an explosive environment, will prevent completely
    wireless systems in most mines for many years to come. Thus, for the
    near term, there is a need to advance emergency communications
    technology while providing a foundation for future improvements that
    will lead to the realization of our shared vision. We also accept that
    it will be impractical to develop systems that will withstand any
    disaster scenario in every location within every mine. As such, we
    believe it is prudent to employ systems that will work in most mines
    under common disaster scenarios. Our research is demonstrating a
    practical path forward in which achievable technological developments
    can be used in the short term to significantly improve emergency
    communications while providing a platform for future improvements like
    wireless systems.
        The language in the bill is consistent with our recommended
    approach. While all currently-available systems have vulnerabilities,
    we believe that systems such as the ``leaky feeder'' system and the
    ``wireless mesh'' system can be made more survivable through both
    physical and electronic improvements. While the bill uses the term
    ``hardened,'' this may suggest a focus on physical structures, but
    there are also enhancements that could be made to the system
    architecture or electronics that would make the system more survivable,
    so we suggest substituting the term ``improved'' or ``enhanced.''
    Further, at this time, standard definitions do not exist for the term
    ``hardened,'' which may lead to some confusion. We believe that the
    language of the bill as currently written would not interfere with
    current research and industry efforts to develop and implement a
    solution that is completely wireless, and consequently, we approve of
    that language, with the modification noted above.
    Section 4(b), Underground Refuges:
        We agree with MSHA on the need to allow for refuge alternatives in
    addition to refuge chambers; allowing alternatives will better balance
    the need for mines to provide refuge but also facilitate mine
    evacuations. NIOSH is investigating various refuge alternatives and
    will make specific recommendations in its report to Congress, which is
    due in December 2007. Hopefully, the language in the bill will allow a
    comprehensive use of refuge alternatives in addition to chambers. This
    will permit mine operators to choose from a suite of alternatives to
    facilitate both escape and rescue.
        NIOSH is also investigating location guidelines for refuge
    alternatives, such as the maximum distance that a chamber should be
    placed from the face. Although the distance of 1,000 feet specified in
    the bill seems reasonable for many situations, it may not be the best
    metric. For example, the distance could be based on two parameters: the
    speed at which the mineworkers would be able to travel in zero
    visibility; and the capacity of their oxygen supply. In some mines,
    this distance could be significantly greater or less than 1,000 feet.
    Again, there would be value in referencing these metrics to the
    findings of the NIOSH research effort on refuge alternatives.
    Section 4(c)(2), Mine Seals:
        NIOSH Information Circular (IC) 9500, Explosion Pressure Design
    Criteria for New Seals in U.S. Coal Mines, establishes a set of
    conditions to seal gob areas safely. Scenarios are described that
    require monitoring of the gob behind the seals, as well as those that
    do not require monitoring--the Circular explicitly recommends that, if
    a seal meets a particular strength standard (which depends on the
    configuration of the sealed area), there is no need for ongoing
    monitoring. The bill as written would require ongoing monitoring of all
    newly-sealed gob areas. That is a more stringent standard than is
    recommended by the Circular, and NIOSH does not believe such a standard
    is necessary. Further, to the extent that monitoring is to be required,
    NIOSH does not think it appropriate to include specific monitoring
    locations and procedures in legislation at this time, as additional
    research is being conducted. Additionally, NIOSH believes that the bill
    should be written to accommodate a full range of measures that could be
    used to improve safety insofar as gob explosions are concerned, rather
    than focusing solely on explosion pressure and monitoring practices.
    Section 4(c)(3), Ventilation Controls:
        Ventilation controls need to be designed to withstand the normal
    forces associated with mining and to provide improved resistance to
    overpressure from mine explosions.
        The ventilation controls should be designed and constructed of
    materials that can handle the geotechnical conditions associated with
    stress and movement of the rock masses to avoid compromising their
    performance. For a particular set of conditions, the materials used for
    the controls may have to withstand movement of the roof and floor
    rocks, which requires a material that does not break when subjected to
    squeezing. Thus, ventilation controls should be designed to meet
    specific performance standards and should not specify use of particular
    materials. This would include consideration of the amount of
    overpressure the controls could withstand to ensure that the
    ventilation system is not completely disrupted in the event of an
    explosion. This is the approach that has been adopted in Queensland,
    Australia, in stoppings and overcasts, in their Schedule 4 Ventilation
    Control Devices and Design Criteria, of Coal Mining Safety and Health
    Regulations (2001). Their stoppings, overcasts, and regulators must be
    designed to withstand an overpressure ranging from 2 psi to 5 psi
    depending on the location. Their standard includes design requirements
    such as ``fire resistant and of substantial construction'' for certain
    applications. A similar approach in the bill would result in a higher
    level of safety.
    Section 4(d), Belt Air:
        The Technical Study Panel, established by the Mine Improvement and
    New Emergency Response Act of 2006, is investigating the use of belt
    air, and is addressing the broad issues of belt flammability and the
    use of belt air. Their findings can certainly help illuminate the
    discussion around the practice. Notwithstanding, we are concerned that
    the language of the bill would not even allow the use of belt air under
    any circumstances. This could create a significant danger in at least a
    few mining districts: those in which coal bumps are a problem due to
    the heavy overburden pressures such as in Utah and deep mines with high
    methane emission rates combined with significant ground control
    problems such as in Alabama.
        A task force was assembled in 1985 to examine the complex issues of
    using two-entry longwall mining systems. Ground control ramifications,
    ventilations, and fire hazards were also reviewed. The technical team
    consisted of MSHA and U.S. Bureau of Mines staffs. Ground control
    stability in underground coal mines is influenced by several factors,
    which include geology, overburden, rock properties and in situ
    stresses, and mine design. Various combinations or these factors make
    generalized design recommendations difficult. For example, while it may
    only influence a small number of western mines in the Central Rocky
    Mountain region, the use of two-entry systems with a small yielding
    pillar has resulted in dramatic improvements in stability when extreme,
    primarily deep, mining conditions were encountered. By reducing the
    total load carried by the chain pillars, substantial reductions in
    bumps, roof falls, and floor heave have been realized. The two-entry
    gate road designs seem to limit the stress interaction and provide for
    a more stable mining environment as attested by the bump/bounce, roof
    fall, and injury/fatality history. Depth is not always the only
    consideration; different material properties of the coal, coupled with
    weaker roof and floor, have eliminated bumps in the Southern
    Appalachian region. The requirements for additional ventilation to
    remove explosive gases necessitate using multiple intake and return
    entries with only minor ground control design considerations for
    controlling the vertical stress concentrations inherent with greater
    mining depths. While these issues only affect a smaller number of
    mines, they cannot be ignored and mine-specific variances would help
    ensure safety for these special circumstances.
    Section 4(i), SCSR Inspection Program:
        The U.S. Department of Labor (DOL) is required to establish a
    program for periodic random testing of SCSRs. Testing of these devices
    is currently being done by NIOSH through its Long Term Field Evaluation
    (LTFE) Program. This is a program through which NIOSH randomly selects
    400 Self-Contained Self Rescuer (SCSR) devices from underground mines
    across the country (100 from each of the 4 types of SCSRs approved for
    use in underground mines) and removes them for testing to evaluate
    their continued functionality. NIOSH believes that its functional
    sampling schedule under the LTFE Program (http://www.cdc.gov/niosh/
    npptl/topics/respirators/ltfe/ltfe.html) has sufficient statistical
    power to ensure the functional performance of SCSRs that pass the
    manufacturers' inspection criteria. NIOSH lacks the testing capacity to
    test significantly more SCSRs in a given year. According to MSHA's
    analysis, this legislation could require the testing of about 20,000
    SCSRs per year, and this would far exceed NIOSH's capacity. Further,
    NIOSH provides new SCSRs to replace each one removed from a mine
    because NIOSH functional testing results in the destruction of each
    unit tested. Currently, NIOSH bears the replacement costs although
    under the legislation these replacement costs would be shifted to
    industry. If the 5% testing requirement under the legislation is
    limited to non-destructive visual inspection that would be less
    objectionable; however, NIOSH would defer to MSHA to make such a
    determination.
        NIOSH would defer to MSHA in determining the appropriate level of
    initial inspection verification necessary to assure miners are not
    using devices that do not pass the manufacturers' inspection criteria.
                                     ______

        [Statements and supplemental materials submitted for this
    hearing were posted at the following committee Internet
    address:]

                http://edlabor.house.gov/hearings/wp072607.shtml

        [Whereupon, at 3:37 p.m., the subcommittee was adjourned.]