[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


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

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

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

                 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:]

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                                ------                                

    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.
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    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.
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    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.]

                                 
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