[Senate Hearing 110-137]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-137
 
                         PROMISES OR PROGRESS: 
                      THE MINER ACT ONE YEAR LATER

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

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

   EXAMINING THE PROGRESS OF THE MINE IMPROVEMENT AND NEW EMERGENCY 
                              RESPONSE ACT

                               __________

                              MAY 22, 2007

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                 senate


                     U.S. GOVERNMENT PRINTING OFFICE
35-852 PDF                 WASHINGTON DC:  2009
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director

            Subcommittee on Employment and Workplace Safety

                   PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut     JOHNNY ISAKSON, Georgia
TOM HARKIN, Iowa                     RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland        LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     PAT ROBERTS, Kansas
BARACK OBAMA, Illinois               WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma
EDWARD M. KENNEDY, Massachusetts     MICHAEL B. ENZI, Wyoming (ex 
(ex officio)                         officio)

                     William Kamela, Staff Director

                  Glee Smith, Minority Staff Director

                                  (ii)

  




                            C O N T E N T S

                               __________

                               STATEMENTS

                         TUESDAY, MAY 22, 2007

                                                                   Page
Murray, Hon. Patty, Chairman, Subcommittee on Employment and 
  Workplace Safety, opening statement............................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  opening statement..............................................     3
Kohler, Jeffrey, Ph.D., Associate Director for Mining, National 
  Institute for Occupational Safety and Health, Pittsburgh, 
  Pennsylvania...................................................     4
    Prepared statement...........................................     6
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  statement......................................................    15
O'Dell, Dennis, Administrator, Department of Health and Safety, 
  United Mine Workers of America, Fairfax, Virginia..............    21
    Prepared statement...........................................    24
Bessinger, S.L., Ph.D., P.E., Engineering Manager, BHP Billiton, 
  San Juan Coal Company, Waterflow, New Mexico...................    29
    Prepared statement...........................................    30
Watzman, Bruce, Vice President, Safety, Health & Human Resources, 
  National Mining Association, Washington, DC....................    37
    Prepared statement...........................................    38

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Enzi, Hon. Michael B., a U.S. Senator from the State of 
      Wyoming, prepared statement................................    47
    Letter to Senator Byrd from Richard E. Stickler..............    49
    Letter to Senator Murray from S.L. Bessinger.................    55

                                 (iii)

  


                         PROMISES OR PROGRESS: 
                      THE MINER ACT ONE YEAR LATER

                              ----------                              


                         TUESDAY, MAY 22, 2007

                                       U.S. Senate,
           Subcommittee on Employment and Workplace Safety,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:01 a.m. in 
Room SD-628, Dirksen Senate Office Building. Hon. Patty Murray, 
chairman of the subcommittee, presiding.
    Present: Senators Murray, Brown, and Isakson.
    Also Present: Senator Rockefeller IV.

                  Opening Statement of Senator Murray

    Senator Murray. This subcommittee will come to order. I 
want to welcome our witnesses and all of our guests today.
    As a country, we have a responsibility to protect the 
health and safety of Americans on the job. Last year, after the 
horrible mine accidents in West Virginia, Congress stepped 
forward and passed the MINER Act--the most comprehensive mine 
safety reforms in a generation.
    I was pleased to work on that bill with Senators Kennedy, 
Byrd, Rockefeller, Enzi, and Isakson. We held hearings, we 
heard from the experts, and we created a comprehensive system 
to address glaring holes in the safety net that miners rely on.
    The MINER Act mandates comprehensive emergency response 
plans, evacuation plans, post-accident communications, 
breathing air, training and coordination with local emergency 
responders. The MINER Act also requires flame-resistant 
lifelines, state-of-the-art two-way wireless communications, 
electronic tracking systems, more training for miners and 
safety inspectors, and higher penalties for safety violations.
    Since our law was signed, it has been up to the Bush 
administration, and specifically the Mine Safety and Health 
Administration to aggressively implement the law. Things didn't 
get off to a promising start--instead of nominating a safety 
leader to run MSHA, the Bush administration chose a status quo 
mining official. In the weeks before we passed the MINER Act, 
Richard E. Stickler told me that he could not name a single 
reform that was needed. Congress and the rest of the country 
saw things differently.
    I voted against Mr. Stickler's confirmation, because his 
background and his answers didn't demonstrate to me that he 
recognized the urgent need to fully and aggressively implement 
the MINER Act.
    Today, as we approach the first anniversary of the passage 
of the MINER Act, this subcommittee is doing its job of 
oversight. The question is, is MSHA doing its job to protect 
America's miners?
    So far, I am concerned that the slow pace of reform is 
leaving America's miners at risk. We've made progress. But MSHA 
has not moved aggressively to implement all of the provisions 
of the MINER Act. I want to share a few examples.
    We required more rescue teams. Today, we don't have them. 
We required mines to have emergency response plans. Most mines 
have yet to finish them. We called for new technical 
improvements, reliable communications, and refuge chambers. 
Those improvements are still sitting on the drawing board. We 
required mines to install oxygen supplies. In some cases, MSHA 
told mine owners they're in compliance just for ordering the 
equipment, but MSHA has not yet pushed to have those oxygen 
supplies installed.
    A rescue team that doesn't exist, an emergency plan that is 
incomplete, a radio that doesn't work, an oxygen supply that is 
not available, and a shelter that has not been built, will not 
protect miners when the next disaster strikes. We cannot wait 
for the next disaster. We need those safety components in place 
today.
    With the MINER Act, Congress gave the Bush administration 
the tools to keep America's miners safe. Nearly 1 year later, 
the Bush administration has done too little, and moved too 
slowly. I am unwilling to let that situation continue.
    We are going to hold MSHA and mine owners accountable, and 
we're not stopping just with the MINER Act. I'm working with 
Senators Kennedy, Byrd, and Rockefeller to draft new 
legislation we hope will further improve mine safety. Advances 
like proximity detectors, improved recordkeeping, and updated 
asbestos standards for mines.
    The MINER Act is an important tool to protect workers. But 
it needs to be enforced if we're going to make progress. As we 
examine what other countries, like Australia and Canada, have 
done to protect their miners, there is certainly room for real 
improvements in the health and safety protections for American 
workers. We must build on the MINER Act promises, and speed its 
implementation. We know that research, like the research that's 
being conducted by NIOSH Spokane Research Laboratory in my home 
State of Washington, is identifying new ways for us to 
understand the risks of mining, and how to better protect our 
workers.
    I remain committed to giving America's miners a workplace 
that is safe, and I want to thank our witnesses for being here 
today to share their expertise.
    This morning we will hear from Dr. Jeffrey Kohler with 
NIOSH, Dennis O'Dell from the United Mine Workers of America, 
Mr. Steve Bessinger from the San Juan Coal Company, and Bruce 
Watzman from the National Mining Association. We look forward 
to all of your testimony.
    And I will now turn to Senator Isakson for his opening 
statement, and thank him for his continued work on this 
critical issue.

                  Opening Statement of Senator Isakson

    Senator Isakson. Thank you, Chairman Murray.
    A year ago I boarded a plane with Senator Rockefeller, 
Senator Kennedy, and Senator Enzi, and we flew to West Virginia 
and to the site of the Sago Mine disaster shortly after it took 
place.
    That afternoon, we met with the families of the miners that 
were lost, and in particular, I had a brief--but significant--
encounter with the family of George ``Junior'' Hamner. His 
daughter, then 22, gave me a picture of Junior that was just 
taken right after Christmas when he'd gotten a six-point buck 
in the mountains of West Virginia. That picture remains in my 
office with me today, and will stay with me, always, because 
it's a reminder to me of why we are really here.
    I was very pleased to be one of the co-authors of the MINER 
Act, along with Senator Murray, Senator Rockefeller, Senator 
Byrd, Senator Enzi, and Senator Kennedy. And, I'm also quite 
pleased with a lot of the progress that has been made since 
that time.
    You know, one thing that needs to be understood--I ran a 
company for 33 years. The safety of my workers was the most 
important thing to me. My assets had two legs, and I didn't 
want a single one of those legs getting broken, a single one of 
those people getting hurt. And, I'm impressed with what the 
mine industry has begun doing in many areas to respond to the 
MINER Act.
    In particular, in the year since that incident took place, 
and later, the passage of the MINER Act, 86,000 new self-
contained, self-rescuers are in place, and 100,000 additional 
units are to be added. Fifty-five thousand underground coal 
miners have all gone through training and quarterly review on 
the use of the equipment, and fifty-five thousand underground 
coal miners have received training on evacuation procedures.
    All mines have submitted plans to provide post-accident 
breathable air to miners awaiting rescue, and 36 new 
underground coal mine rescue teams have either been added, or 
are in the place of being formed and trained. Those are 
positive steps forward to meet the absolute safety needs that 
we need to find.
    I also was pleased last year to conduct, along with Senator 
Murray, an intensive roundtable, where we had folks from 
Australia, and Canada and around the world, looking at the new 
technologies in terms of trying to have two-way communications 
with miners underground, and additional enhanced communication 
with miners underground.
    I am looking forward today to hearing the progress of some 
of that research, as I'm looking forward to getting a report 
from Australia in the not-too-distant future about some 
progress they have made in some of their underground 
communications.
    The most important thing of this subcommittee is the 
occupational safety, health and welfare of the employees, which 
is equally the most important thing for the employer, because 
without the employees, employers have nothing. Working 
together, there's not a problem we can't solve, and with 
American innovation, and with the pressure from this committee, 
to continue to press forward on safety, I am confident we can 
continue to improve on the passage of the legislation last 
year, and build on more safety in the future for the miners of 
America.
    And, I thank the distinguished Chair.
    Senator Murray. Thank you, Senator Isakson.
    Before we begin, I do want to advise all of our witnesses 
that your entire statements will be included in this 
committee's records. In order to allow all of our members 
adequate time to ask questions, I would ask that you keep your 
oral statements to 5 minutes.
    We are now going to turn to our first witness from the 
first panel, Dr. Jeffrey Kohler. He is the Associate Director 
for Mining at the National Institute for Occupational Safety 
and Health. Dr. Kohler is responsible for NIOSH's research 
portfolio in mining and construction, and is the past Director 
of the Pittsburgh Research Laboratory. He's also been a member 
of the mining engineering faculty at Penn State University.
    Dr. Kohler, we welcome you, and look forward to your 
testimony.

  STATEMENT OF JEFFREY KOHLER, PH.D., ASSOCIATE DIRECTOR FOR 
MINING, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, 
                    PITTSBURGH, PENNSYLVANIA

    Mr. Kohler. Thank you, and good morning, Madame Chair, and 
members of the committee.
    My name is Jeffrey Kohler, and I am the Associate Director 
for Mining and Construction, Health and Safety Research at 
NIOSH. I am pleased to provide a progress report on our 
activities related to the MINER Act, and to highlight 
opportunities to further enhance mine safety and health.
    NIOSH is conducting research on refuge alternatives, 
including their use in a comprehensive escape and rescue 
approach. We are addressing training, maintenance and section 
issues associated with chamber use, and developing test 
protocols.
    NIOSH recently completed a report entitled, ``Explosion 
Pressure Design Criteria'' for new seals in U.S. coal mines, 
and we are working in partnership with MSHA, labor and industry 
to develop practices and technologies that will address 
existing mine seals.
    The emergency supplemental appropriations 2006, provided 
$10 million to NIOSH, and these funds are expediting the 
movement of critical oxygen supply, communications, tracking 
and refuse technologies into the mining marketplace. I'd like 
to highlight three examples.
    First, a more survivable leaky feeder communication system 
is being developed, and will be deployed in the Loveridge Mine 
in West Virginia within the next 9 months. And within the next 
week, a partial system will be installed there for testing 
purposes. This system will improve wireless emergency 
communications, and will provide the backbone for significant, 
improved functionality in the future.
    Second, we are working with researchers at Fort Monmouth to 
adapt a military communication system. This Kutta System will 
work with leaky feeders, and will also function at medium 
frequency, so that if the leaky feeder is compromised in an 
explosion, communications will be maintained.
    Third, we are developing a next generation SCSR, which will 
have a docking capability. We hope to further improve this next 
generation SCSR, with a full-face mask capability.
    We must push the envelope to improve mine worker safety on 
a continuing and long-term basis. The contracts and grant 
program, and the inter-agency working group--both mandated in 
the act--will be very helpful in this regard. NIOSH has 
established a competitive grant and contract program to 
encourage development, manufacture and performance testing of 
mine safety technologies. Already, proposals have been 
submitted to advance mine seal reinforcement, wireless 
communications, and other technologies.
    NIOSH has been working with other Federal agencies to 
address mining's technology needs, and our inter-agency working 
group will provide a more formal mechanism to transfer 
technologies among Federal agencies.
    NIOSH is expanding its emphasis on safety technologies, and 
I'd like to mention two that have come to completion recently: 
the coal dust explosability meter, and the Personal Dust 
Monitor.
    Today, determining a sufficient rock dust has been used to 
prevent a coal dust explosion requires taking a sample, sending 
it to a lab, and then waiting several days for the results. The 
coal dust explosability meter, developed by NIOSH researchers, 
and jointly tested by NIOSH and MSHA, will allow an immediate 
determination.
    The Personal Dust Monitor, or PDM, provides the miners 
respirable dust exposure in real time, allowing immediate 
action to prevent exposures that could lead to Black Lung 
Disease. An exhaustive laboratory and in-mine testing program 
was recently completed, and the results demonstrated that the 
PDM is superior to the existing technology used to determine a 
miner's exposure to respirable coal dust.
    The implementation of the MINER Act of 2006 will drive 
significant improvements to mine safety, and especially in 
practices related to disaster response. However, we should not 
miss the opportunity to shift the focus to the prevention of 
disasters, injuries, and occupational illnesses.
    Some mines are already making important progress in this 
direction, and the entire mining industry should adopt a 
culture of prevention. One of several steps in this direction 
is the use of risk analysis and management.
    A regulatory structure is a prerequisite to the success of 
a risk-based approach. However, compliance with regulations 
alone may be insufficient to achieve the goal of zero harm. 
Thus, the opportunity is to build on the existing regulatory 
structure, utilizing risk-based approaches.
    In closing, NIOSH continues to work diligently to protect 
America's mine workers, and our research activities will enable 
NIOSH--together with MSHA, labor and industry, to better 
protect mine workers.
    Thank you, Madame Chair, and I would be pleased to answer 
any questions.
    [The prepared statement of Dr. Kohler follows:]

             Prepared Statement of Jeffery L. Kohler, Ph.D.

                              INTRODUCTION

    Good morning Madam Chair and other distinguished members of the 
subcommittee. My name is Jeffery Kohler, and I am the Associate 
Director for Mining and Construction Safety and Health Research at the 
National Institute for Occupational Safety and Health (NIOSH), which is 
part of the Centers for Disease Control and Prevention (CDC), within 
the Department of Health and Human Services. I am pleased to be here 
today to provide an update on our recent mine safety activities, a 
progress report on activities that have been initiated under the Mine 
Improvement and New Emergency Response Act of 2006 (MINER Act), and 
outline opportunities to further enhance mine safety and health.
    The United States is fortunate to have an abundance of mineral 
resources to power the economy, and the highly skilled men and women 
who work in the mining industry every day are our most precious 
resource. Mine safety has improved significantly over the years, and 
2005 was the best year on record. Yet, the mine disasters in 2006 and 
the double fatalities in a Maryland surface coal mine last month serve 
as painful reminders of the dangers inherent to this industry and our 
shared responsibilities to help ensure the safety and health of our 
mine workers.
    NIOSH works to eliminate occupational illnesses, injuries, and 
fatalities through its research and prevention activities. Mining 
researchers at our Pittsburgh, Spokane, and Lake Lynn Laboratories have 
a long and successful history of working in partnership with labor, 
industry, and State and Federal agencies to develop and implement 
interventions that eliminate or control mining safety hazards or reduce 
exposure to harmful physical and chemical agents. The work of NIOSH 
scientists and engineers can be found throughout American mines. This 
is evidenced by safer design practices, equipment innovations that 
improve safety or health, technology to improve mine rescue, and 
improved training programs for miners. Over the years, significant 
safety and health gains have been achieved through the collective 
efforts of labor, industry, and government. Yet, more remains to be 
done, and additional effort will be required just to maintain the 
historical gains, as changing mining conditions present new safety and 
health challenges. Our program of mining safety and health research is 
driven by a strategic plan with specific performance goals. Our plan, 
developed with extensive customer and stakeholder input, identifies 
critical needs in mining safety and health knowledge and practices, and 
establishes research priorities for addressing those needs.

                     RECENT MINE SAFETY ACTIVITIES

    NIOSH's mining research priorities address disaster prevention and 
response, traumatic injuries, cumulative trauma disorders, respiratory 
diseases, and hearing loss. The following three examples illustrate 
progress in these areas.
Personal Dust Monitor
    NIOSH researchers, working in partnership with the Mine Safety and 
Health Administration (MSHA), labor and industry, and through a 
research contract to employ novel technology, successfully miniaturized 
a mass sensor that enabled a person-wearable dust monitor (PDM) to be 
built into a miner's cap lamp. An exhaustive laboratory and in-mine 
testing program was completed in the summer of 2006. Some additional 
issues related to the accuracy and operation of the PDM were raised in 
the fall of 2006. Each of these was researched, and the potential 
concerns were found to be inconsequential. The results demonstrated 
that the PDM is superior to the existing technology used to determine a 
miner's exposure to respirable coal dust. It is accurate, precise, 
durable, and empowers miners and mine management with real-time dust-
exposure data. Access to real-time data allows for the prevention of 
overexposures that lead to the development of Coal Workers' 
Pneumoconiosis (commonly referred to as ``Black Lung'' disease). 
Current technology does not provide this key information until days or 
weeks after the exposure has occurred.
Coal Dust Explosibility Meter
    Rock dust is applied to coal mine surfaces to prevent coal dust 
explosions, and if sufficient dust is applied, an inert mixture between 
the two dusts is achieved. The percentage of inert material in the 
mixture is specified by current regulation. However, a determination of 
this percentage by an MSHA inspector or mine operator requires taking a 
sample and sending it to a distant lab for analysis, which can take 
several days. The coal dust explosibility meter developed by NIOSH and 
jointly tested by NIOSH and MSHA researchers will allow an immediate or 
real-time determination by mine operators, or MSHA inspectors, of 
whether an inert ratio has been achieved. A pre-production model is 
currently undergoing approval testing at MSHA, and commercial 
production of this lifesaving, new technology will begin as soon as it 
is approved for use in underground coal mines. NIOSH received the 
Research & Development 100 Award of 2006, recognizing the coal dust 
explosibility meter, as one of the top technological innovations of the 
year.
Diesel DPM Workshop
    NIOSH research benefits mineworkers most when it is adopted into 
practice at the mines so nearly every NIOSH project draws on the 
institute's Research to Practice initiative, which focuses on 
transferring and translating research findings, technologies, and 
information into highly effective prevention practices and products 
which are adopted in the workplace. In the fall of 2006, the Nevada 
Mining Association asked NIOSH to put together a workshop focusing on 
practical methods and technologies for the control of diesel 
particulate matter from mining equipment used in underground mines. 
NIOSH assembled a team of technical experts from its labs, the mines, 
and MSHA, and then developed and conducted a training session entitled 
``DPM Workshop--A Practical Workshop on Strategies and Technologies to 
Reduce Miners Exposures to Diesel Particulate Matter and Gases'' in 
Reno, NV, in January 2007. Attended by over 175 participants, this was 
so successful and well received that a second DPM Workshop will be 
conducted in June in conjunction with the annual Elko Mine Exposition. 
Similar workshops are being planned in the East to accommodate requests 
from the coal and stone industries.

             PROGRESS UPDATE ON NIOSH MINER ACT ACTIVITIES

    NIOSH is also making progress in mine safety through the MINER Act. 
This bipartisan legislation has created an unprecedented environment of 
partnership among labor, industry, and government. The MINER Act 
mandates an increased focus on technology development, testing and 
evaluation to expand the available technologies for disaster prevention 
and response. As mandated, NIOSH is going through the process required 
to formally establish the Office of Mine Safety and Health. In the 
meantime, under my lead as Associate Director, NIOSH continues to 
coordinate mine safety and health work that occurs across multiple 
parts of the agency. In addition, NIOSH has established an interagency 
working group to provide a formal means of sharing technology that 
would have application to mine safety. The working group currently 
includes representatives from NIOSH, MSHA, the National Aeronautics and 
Space Administration (NASA), and a number of research labs or offices 
from within the Departments of Defense, Energy and Homeland Security.
    The MINER Act directs NIOSH to establish a competitive grant and 
contract program to encourage development, manufacture, performance 
testing, or investigation of related issues for new mine safety 
technologies and equipment. We believe that this can be a powerful 
vehicle for bringing technology to bear on the solution of mining 
safety and health problems. The contracts portion of this new program 
was announced on March 2007, and it will remain open until September 
2008. This offering will provide funds to conduct research, exploratory 
development, testing, or evaluations of new technologies to improve 
mine safety, or to adapt technologies from other industries, that could 
result in improved safety for mine workers (additional details are 
available at: www.cdc.gov/niosh/mining). We have received proposals for 
innovations in reinforcing existing mine seals, communications and 
tracking, and fire suppression technologies, and we are encouraged by 
the quality of the responses over the short period that the 
announcement has been open.
    The MINER Act also assigns responsibility to NIOSH to conduct 
research and field tests concerning the utility, practicality, 
survivability, and cost of various refuge alternatives. Our report will 
be submitted by December 2007. NIOSH staff began work in this area 
shortly after the passage of the act. Significant progress has been 
made to date. We have examined the use of refuge alternatives in other 
countries, collected information on practices and regulations, and 
established refuge chamber collaborations with researchers in Australia 
and South Africa. NIOSH has collected information, through a contract 
with the National Technology Transfer Center, on all refuge chamber 
applications in the United States, and we have formulated concepts for 
using refuge alternatives in escape and rescue strategies. NIOSH is 
also addressing the broader training, maintenance, and inspection 
issues associated with chamber use, as well as developing protocols for 
the testing of chambers.
    The MINER Act directs MSHA to finalize new standards for the 
sealing of abandoned areas in underground coal mines. NIOSH initiated 
an intensive effort to develop an engineering-science basis for MSHA to 
use in its development of improved safety standards for sealing of 
abandoned areas. This effort culminated last week with the release of 
NIOSH's report on ``Explosion Pressure Design Criteria for New Seals in 
U.S. Coal Mines.'' We are working closely with MSHA, labor, and 
industry to resolve technical issues related to improving the safety 
associated with existing mine seals.

   NEW INNOVATIONS--MINER ACT OF 2006 AND SUPPLEMENTAL APPROPRIATION

    Moving critical safety technologies, for example oxygen supply, 
emergency communications, and miner tracking, from the laboratory into 
the mine is a high priority for NIOSH, as is adapting technologies from 
other military or civilian applications to the mining industry's needs. 
The Emergency Supplemental Appropriations Act for Defense, the Global 
War on Terror, and Hurricane Recovery, 2006 (P.L. 109-234) provided a 
$10 million Emergency Supplemental Appropriation (ESA), that will have 
a very positive effect in increasing the availability of critical 
oxygen supply, communication and tracking technologies. The goal is to 
facilitate the adaptation and movement of these technologies from other 
industries or from prototype stage to commercialization and into the 
mines, as rapidly as possible, and this is well underway.
    Progress towards this goal has been expedited through a structured 
approach to the challenge. First, NIOSH developed a high-level ``road 
map'' for success, taking into consideration, the availability of 
technologies, commercial availability of equipment, as well as the 
technical and logistical difficulties in meeting the schedule and 
performance expectations of the MINER Act. NIOSH determined that the 
plan should include improvements to legacy systems as well as the 
introduction of new technologies. We believed that it was essential to 
begin with an accurate assessment of the existing technology base in 
order to set off on a path toward success. The initial challenge for 
NIOSH was to invest sufficient time in the early analysis to ensure 
that the contract efforts are in the areas most likely to yield results 
so that we can help move new technologies into the mines as 
expeditiously as possible.
    Our effort to quickly award the right mix of contracts consisted of 
two phases: the technical preparation phase and the contract 
acquisition phase. The technical phase consisted of significant 
engineering-science work to develop the scope of work for the 
contracts, testing of system prototypes in operating coal mines and at 
NIOSH's Lake Lynn Experimental Mine, and evaluation of claims from 
vendors on technologies that were represented as ``solutions'' for the 
mining industry. Stakeholder meetings including the NIOSH Emergency 
Communications Partnership were held periodically as well. NIOSH also 
met with Australian labor, industry, and government officials to review 
findings and the proposed approach, as well as other alternatives. 
Within 3 months after the emergency supplemental appropriation (ESA) 
was approved, a consensus was reached among all groups that NIOSH's 
plan for the available funds was appropriately focused on the 
following: targeting a balanced set of technologies that address the 
mining community's needs in the critical gap areas; selecting 
technology subsets that have a higher probability of success in the 
short term; and meeting the goal of the emergency supplemental 
appropriation.
    The technical preparation phase defined the scope of work and has 
helped to ensure that the most promising and critical technologies are 
being supported under the ESA. In the contract acquisition phase, the 
statement of work for each technology area was developed and contract 
solicitations were advertised for the purchase of services that will 
lead to development and demonstration of new technologies to meet the 
intent of the MINER Act. The ESA is subject to the rules and 
regulations for full and open competition as prescribed by the Federal 
Acquisition Regulations. The acquisition phase culminates in contract 
award, and all contracts have either been awarded or are anticipated to 
be awarded within the next month.
    Table 1 displays the various communication and tracking technology 
solicitation areas NIOSH is actively pursuing, and the respective 
anticipated award and completion dates.

                                 Table 1.--Communication & Tracking Procurements
----------------------------------------------------------------------------------------------------------------
                                           Technical Phase                                 Projected Completion
             Solicitation                  Completion Date            Award Status                 Date
----------------------------------------------------------------------------------------------------------------
Adaptation of the U.S. Army ``Kutta''  August 2006............  Awarded January 2007...  April 2008
 System.
Survivable Leaky Feeder..............  August 2006............  Awarded March 2007.....  August 2008
Hardened Mesh/Node System............  September 2006.........  Anticipated May 2007...  September 2008
Communications Guidelines............  November 2006..........  Anticipated May 2007...  March 2008
Tracking System......................  December 2006..........  Anticipated June 2007..  December 2006
----------------------------------------------------------------------------------------------------------------

    The projected completion dates are based on historical estimates 
and projections, and are directly dependent on the anticipated award 
dates being met. It should be noted that a number of factors may affect 
award dates and therefore project completion, such as the number of 
bidders, the extent of technical clarification or budget clarification 
meetings necessary, the complexity of the negotiated changes, and the 
time allotted to prepare best and final offers.
    For oxygen supplies and refuge chambers, Table 2 displays the 
various solicitation areas NIOSH is actively pursuing, and the 
respective actual or anticipated award dates. As indicated in the 
table, the initial technology survey contract work has been completed.

                                  Table 2.--Oxygen Supplies and Refuge Chambers
----------------------------------------------------------------------------------------------------------------
                                         Technical Completion                              Projected Completion
             Solicitation                        Date                 Award Status                 Date
----------------------------------------------------------------------------------------------------------------
Refuge Chambers Survey...............  July 2006..............  Awarded September 2006.  Completed
Hybrid SCSR..........................  August 2006............  Awarded February 2007..  August 2008
Dockable SCSR........................  August 2006............  Awarded February 2007..  August 2008
Refuge Chamber/Trapped Miner           October 2006...........  Awarded November 2006..  Completed
 Location--Preliminary Study.
Refuge Alternatives..................  December 2006..........  Awarded April 2007.....  November 2008
----------------------------------------------------------------------------------------------------------------

Technology Availability and Progress Summary
    The products resulting from NIOSH development efforts are expected 
to become available in 2007 and continue into 2008 and beyond. These 
solutions are focused on providing the best approaches to meet the 
challenges that the MINER Act aims to address.
    In order to move forward with our work under the act and the 
Emergency Supplemental Appropriation, NIOSH has developed a 
communications systems ``road map,'' which defines specific 
requirements based on a set of assumptions. This ``road map'' describes 
available communications technologies today and outlines viable 
technical options for upgrading those investments to provide even 
greater functionality during post-accident scenarios as the new 
technologies come online.
        next steps to continue enhancing mine safety and health
    The implementation of the MINER Act of 2006 will drive significant 
improvements to mine safety, especially in practices related to 
disaster response. An important opportunity exists today to shift the 
focus to prevention--of explosions, fires, inundations, injuries, and 
occupational illnesses. I will use two examples here to illustrate next 
steps: a change of approach using real-time dosimetry to eliminate 
Black Lung disease; and the broad-based approach of risk analysis and 
management as a vehicle to reduce harm.
    Black Lung disease continues to be a serious problem. Despite the 
progress that has been made, and the declining number of cases, between 
2000-2004 more than 4,100 men and women died from this debilitating 
lung disease. While the dust exposures leading to Black Lung can take 
years or even decades to produce their deadly results, we think it is 
time to take a different approach. Technological advancements are 
making possible real-time dosimetry. The Personal Dust Monitor (PDM), 
which I described earlier, makes it possible to measure dust exposure 
in real time, rather than waiting a week or more for the lab results of 
the current sampler. NIOSH is studying how miners use the PDM, and we 
have seen respirable dust exposure reductions of 50 percent over a 
several week period, as the face crews have acted on the information 
available from the PDM. The PDM would allow exposures to be 
automatically downloaded to a database for every working shift. Such 
data would be invaluable to lower exposures and to assure that 
exposures remain low on every shift. Thermo Fisher Scientific 
Corporation, (Franklin, MA) recently bought the rights to the PDM and 
is poised to begin commercial production of the device. The company 
estimates availability of PDMs within 4-6 months after the completion 
of all rulemaking.
    The concept of ``zero harm'' has developed over the years and has 
the objective of reaching a point where there are zero fatalities and 
serious injuries. This concept was applied in the Australian mining 
industry over a decade ago after the Moura Mine disaster, and we could 
benefit from applying those lessons in the U.S. mining industry today. 
In Australia, they began the transition from a compliance-based system 
to a more proactive risk-based system. This was highlighted in the 
report of the Mine Safety Technology and Training Commission published 
in December 2006, in which that tripartite commission clearly stated 
the necessity of establishing an objective of zero fatalities and 
serious injuries, and laid out a path to its achievement. While the 
``path'' is articulated in 75 recommendations, its vision really 
reduces to creating and enabling a culture of prevention. An important 
foundation for a culture of prevention is risk analysis and management. 
Risk analysis and management is practiced to some extent at many mines, 
and in some mines it is a fairly formal and well-developed process. 
However, the opportunity exists for it to be practiced at every mine.
    The existence of a regulatory structure and enforcement of 
regulations are prerequisites to the success of the risk-based 
approach. However, compliance with regulations alone will be 
insufficient to achieve the goal of zero harm. Thus, the opportunity is 
to complement the existing regulatory structure with a risk-based 
approach to improving safety and health. It took the Australians a 
decade to develop the robust structure that we see today, but we need 
to make a start in this country.
    We have developed a project at NIOSH to begin an industry-wide 
process. Initially, we are focusing on major or catastrophic hazards, 
such as explosions, fires, and inundations. We have conducted 
workshops, with the help of Australian experts, and we have worked with 
labor and management at nine mines, five in underground coal and four 
in underground metal/nonmetal, to conduct major hazard-risk analysis 
and management planning. These case studies are being used to prepare 
workbooks and templates for application by other mines. Additional case 
studies and workshops are in process. This will be followed by a 
national effort to educate and train the industry to utilize this 
powerful tool.

                               CONCLUSION

    In closing, NIOSH continues to work diligently to protect the 
safety and health of mineworkers. The MINER Act and supplemental 
funding for mining research are enabling us to make significant 
improvements in the areas of communication and tracking, oxygen supply, 
and refuge alternatives. Moreover, our safety and health research 
program is addressing the critical areas identified by our customers 
and stakeholders, and through our research, development, demonstration, 
and diffusion activities, we are enabling a shift to a prospective harm 
reduction culture in the mining. I appreciate the opportunity to 
present our work to you and thank you for your continued support. I am 
pleased to answer any questions you may have.

    Senator Murray. Thank you very much, Dr. Kohler.
    We have been joined by a special guest to our subcommittee 
today, who has a special interest and passion on this issue.
    Senator Rockefeller, thank you for coming today, would you 
like to make any opening statements?
    Senator Rockefeller. No. Thank you.
    Senator Murray. Thank you. We'll turn to you for questions 
in just a few minutes, but we do welcome you to our 
subcommittee today.
    Dr. Kohler, I understand that NIOSH has been working on 
testing airtight emergency shelters for use underground, and 
that the State of West Virginia has actually moved ahead and 
improved shelters for use in their mines. We know that other 
countries have already put these refuge chambers to use, and we 
know today that one of the real risks to our miners is their 
inability to survive for periods of time without clean air and 
other critical supplies. Can you share with this subcommittee 
what is the status of NIOSH's activities in this area?
    Mr. Kohler. Sure. As part of our comprehensive research and 
testing program for refuge shelters to prepare the report that 
we'll be delivering to Congress this December, we're looking at 
a wide range of refuge alternatives, including refuge chambers, 
and including other alternatives in training, testing, 
maintenance, and so forth.
    We have agreed to assist the State of West Virginia to 
perform some testing on some of their chambers. If you compare 
the current alternative, which is to barricade--you know, use 
some lumber and some plastic sheeting and some nails--the use 
of chambers is a far sophisticated and much better solution.
    While it's true that today we don't know, perhaps, every 
single thing we'd like to know about chambers, it's our belief 
that the State of West Virginia has really identified the 
critical parameters identifying those chambers, and we would 
not expect that any of our work would significantly change what 
the State of West Virginia has done.
    Senator Murray. What has caused the delay in the 
implementation of the recommended use of refuge chambers in 
coal mines?
    Mr. Kohler. You mean that was in the original 1969 Act?
    Senator Murray. Correct.
    Mr. Kohler. That actually pre-dates my time. When I was a 
mining engineering student in the early 1970's, my professors 
told me that refuge was a concept that people had put aside, 
that they were more interested in evolving escape technologies. 
And, for the 30 years beyond that, there was little action in 
this country on refuge chambers.
    Senator Murray. Why haven't you moved forward on a 
recommendation to implement?
    Mr. Kohler. We're moving with great dispatch to remove any 
technical barriers, or fill any knowledge gaps, so that refuge 
chambers can be used as soon as possible, and we fully support 
the State of West Virginia's plan to move forward.
    Senator Murray. How long before you expect that 
recommendation to come forward?
    Mr. Kohler. The final report? Well, our final report, we 
won't have everything finished until late this fall. I don't 
think that is going to significantly change what the State of 
West Virginia wants to do this summer.
    Senator Murray. Because I'm keeping that in mind, in terms 
of other mines.
    Mr. Kohler. In other mines? I see no barriers there. I 
mean, there's some risk in moving forward without completely 
knowing all of the information, but I think Mr. Rahall said it 
very well at the hearing last week. He said,

          ``When it comes to introducing new technologies, coal miners 
        will undoubtedly benefit from a deliberative, well-researched 
        process. But, it would be shameful if that process were used as 
        an excuse for further delay and inaction.''

    And, I think that there's no excuse for delay and inaction 
in moving forward with the use of the refuge chambers, but also 
with the understanding that there's additional things that we 
will learn, and we can refine that process as we go down the 
road, and we can open up, maybe, more refuge alternatives as 
well.
    Senator Murray. As you know, I am very concerned about the 
use of asbestos in the United States, and the plight of 
thousands of victims of asbestos-related exposure on the job. 
It really troubles me that MSHA has delayed its rulemaking on 
reducing the allowable limit for asbestos exposure in mines. 
Miners, as you know, are very vulnerable to asbestos disease, 
as other workers are, and they really deserve the protection of 
law. Can you share with this committee what research NIOSH has 
done to help us move to better controlling asbestos exposure in 
mines?
    Mr. Kohler. NOISH has really done a significant amount of 
research to try and identify the asbestos problem. Recently, 
they published an Asbestos Road Map, which identifies the 
remaining science issues that need to be addressed, and it has 
proposed a research plan to complete all of that work.
    Senator Murray. What are the next steps that need to be 
done?
    Mr. Kohler. I think the next steps are those outlined in 
the Asbestos Road Map which would include some additional 
epidemiological studies, and perhaps some look at control 
technologies.
    Senator Murray. Thank you.
    Senator Isakson.
    Senator Isakson. Thank you very much, Dr. Kohler. On that 
question--again, I'm not sure I know this to be true, but isn't 
it true that most of the mine companies try and stay within the 
coal seam to keep from getting naturally-occurring asbestos to 
permeate the mine?
    Mr. Kohler. That's correct. And, we do not at this time, 
have any data to suggest that there is a problem with asbestos 
bringing minerals in underground coal mining. I think metal, 
mine metal, there are other issues.
    Senator Isakson. I'm really excited because the Self-
Contained Self Rescuers in the docking system that you referred 
to, I think, is a breakthrough from the hearing that we 
conducted, the roundtable we conducted here last year. Would 
you--for the audience's benefit, and really, I think, the 
benefit of the committee--would you amplify what that actually 
allows the SCSR to do?
    Mr. Kohler. Yes, the SCSR has a limited capacity, perhaps 
upwards of 60 minutes, and so at some point, it may be 
necessary to change SCSRs. One of the more dangerous tasks in 
using an SCSR is actually taking off the SCSR and donning, or 
putting on, a new one. You know, the danger is that you would 
accidentally take in a breath of toxic air.
    The docking one allows you to put on the SCSR and then 
leave it on, and then you simply snap in and snap out 
cartridges.
    Senator Isakson. That is a great breakthrough, and really 
terrific.
    The recent results announced on the Sago Mine 
investigation, if I remember correctly, determined conclusively 
by a demonstration done by top scientists that two lightening 
strikes, four seconds apart, ended up producing an arc via an 
abandoned cable underground which caused the explosion, is that 
correct?
    Mr. Kohler. I understand that that was their finding.
    Senator Isakson. Then, just out of curiosity, that begs the 
question about lightening and grounding--are the grounding, are 
there capabilities around the coal mine to attract lightening, 
and ground it away from conduits that otherwise it might reach?
    Mr. Kohler. I think there are a couple of very important 
points. One is, that we do know how to protect mines, to some 
extent, from the adverse affects of a lightening strike, and we 
certainly need to do all of those things, many of those things 
are spelled out in the existing regulations.
    Secondly, I think that we've learned from a global 
experience that there appears to be a credible possibility of a 
lightening strike initiating a gas explosion. And that's 
something that tells us that we need to really protect our GOB 
areas, our sealed areas.
    Senator Isakson. Yes, because that's where that spark ended 
up going in the Sago case.
    To what extent is NIOSH involved in testing and improving 
any underground communication devices, and in particular, are 
there wireless communication devices that a miner can use post-
accident to communicate with the surface?
    Mr. Kohler. We are heavily involved in the research, 
development and testing, we don't certify those products, that 
rests with MSHA. We're heavily involved--under our Emergency 
Communication Partnership, which includes MSHA, industry and 
labor and manufacturers, we have tested over 40 systems, to 
date. And, I'm pleased to say that progress is being made, you 
heard me say, for example, that one of the systems funded under 
the emergency supplemental appropriation, a piece of that will 
be installed this week and next week for testing at the 
Loveridge Mine in West Virginia, the full system is expected to 
be in in about 9 months.
    The kind of systems that West Virginia is requiring in its 
mines to go in later this year, are systems which will be more 
advanced than current systems that exist in many mines. And, to 
that end, that's also a good thing.
    Senator Isakson. In your testimony, you made reference to 
working with the U.S. military to this regard, I want to 
compliment you on that, because I recall, when we had the 
roundtable I've referred to before, a couple of times, that had 
really not--that engagement hadn't taken place before, and I 
think they have a lot of technology, both the type you can talk 
about, and the type that's probably secure information. But, I 
commend you for working with them on that.
    As I understand it, though, there still is not a wireless 
two-way communication system operating, even in Australia, is 
there?
    Mr. Kohler. Not with the degree of functionality that we're 
all hoping for.
    Senator Isakson. Well, I encourage you to continue working 
with the military, I think that's the single most important 
thing so that the miners have a contact, and so the mine 
officials actually know where the miners are. That could have 
solved a lot of problems in the Sago incident.
    And, I appreciate your testimony.
    Thank you, Madame Chair.
    Senator Murray. Senator Rockefeller.
    Senator Rockefeller. Thank you, Madame Chair.
    My question will appear to be hostile, but it's not. The 
NIOSH--and I remember when I was Governor going by that 
building up at W View many times, and the reputation of NIOSH 
then, and the reputation of NIOSH, to some degree, today is a 
certain degree of separation from the realities of coal mining, 
and the realities of being a producer, or a miner, because of 
the fact that you are researchers, you're Ph.D.s.
    And, so the immediacy of what's going on inside the mine is 
in your job description, but it isn't like when there's 
political pressure, in the good sense. That is, Sago happened, 
and everybody went down there and all kinds of things did begin 
to happen.
    So, what I'm interested in, and you're talking about 
philosophically, No. 1, you're under funded, MSHA is under 
funded, MSHA has been--in my mind--somewhat less than 
impressive, I'm not concluded yet on NIOSH. But, if you're both 
under funded, which means that people are either overwhelmed, 
or their job requirements are cut, it takes away some of the 
sense of urgency, I would think. And, I have not necessarily 
associated NIOSH--in my experience in the Governorship and the 
Senate in West Virginia, with forward pushing. Forward 
thinking, yes, forward pushing, no.
    For example, the relationship with the State government. 
Relationships with State governments are very--Governors are 
very proprietary. They do what they think is the right thing to 
do, or whatever, but they just do it. And NIOSH is a factor, 
MSHA is a bigger factor because it's got a different kind of 
clout.
    But--describe to me--how would you talk about the sense of 
urgency as a result of these mine disasters, and the morale and 
the feeling within your community?
    Mr. Kohler. Yes, thank you. I appreciate the opportunity to 
change your mind about NIOSH and its sense of urgency, and the 
value that it brings to the mine.
    If you talk to our researchers at our Pittsburgh, Spokane 
and Lake Lynn laboratories, you will find that--at least for 
the past 8 or 9 years, every day, every time there's a group 
meeting or whatever, the first question is, ``What have you 
done for mine workers today?'' You know, we drive home the 
point that, when the taxpayers send us a pot of money, they 
expect value in return, they expect us to do something to 
eliminate fatalities, injuries and illnesses.
    So, every day we try and impress upon people that, yes, 
while you do your job through research and prevention 
activities, that has no meaning until you apply it to 
practice----
    Senator Rockefeller. Do you really start out with that 
question every day?
    Mr. Kohler. Every single time we're with people, we're with 
managers, or employees, we always ask that question, yes. 
Because, we need people to understand that the research that 
they do only takes on value if it's solving real problems for 
real people.
    So, I think there's a very compelling sense of urgency, and 
I would hope that our customers and stakeholders would be able 
to shed light on how they see that from their perspective.
    The disasters, last, really compounded both the problem, 
and the sense of urgency. You're correct that our resources are 
very thin, staffing is an issue because of retirements and the 
aging workforce, morale is good, because I think people see the 
purpose. They see that their work is, and can make, a 
tremendous difference.
    So, I would say that while we look forward to having the 
mandates of the MINER Act, for example, funded, so that we can 
carry them out, our ability to do good work is occurring, and 
it's occurring with the resources that we've been allocated. 
We've had to set priorities, but I think we've still been able 
to deliver good value.
    Senator Rockefeller. Thank you, Madame Chair.
    Senator Murray. Senator Brown.

                       Statement of Senator Brown

    Senator Brown. Thank you, Madame Chair.
    I appreciate this hearing. Chairmen in this institution 
call hearings for a whole lot of reasons, and I want to thank 
Chairman Murray for the hearing she did some weeks ago on 
asbestos in the tunnels around the Capitol. That hearing 
absolutely will lead to a better life for those workers in the 
mines, in the tunnels under the House and the Senate, and the 
kind of exposure to asbestos that they've been subjected to, 
and nobody cared, and she stepped up, and it really did matter. 
So, thank you for that. I hope this hearing can help yield the 
same kind of results.
    I have, for 6 or 7 years, worn on my lapel a depiction of a 
canary in a coal mine, given to me at a worker's memorial day 
some 5 or 6 years ago by the steel workers, symbolizing the 
progress we have made in all worker safety issues, and 
environmental issues, but also indicating the progress we still 
need to make. I think the legislation last year was, obviously, 
a good step.
    In my State, in Ohio, which is a coal State--not quite as 
much as the Senators from the State of West Virginia, but 
they're partly, with this legislation, partly with local 
involvement, State involvement, we have made some major 
progress, in the 11 underground coal mines, 4 underground, 
other material mines in my State. I want to pursue just one 
question, and from what Senator Isakson said about the 
communications, and I know the technology is not there for what 
we need for miners to be in touch with people above ground, but 
could you tell us within the confines of, as far as you can go 
with military issues and intelligence issues, the state of the 
technology and what NIOSH is doing, and what you see others 
doing to move forward on better technology issues, and 
advancement?
    Mr. Kohler. Yes, I think it's important we realize that 
there are things that we can do today. And, if we choose those 
things correctly, they will also propel us into the future. 
And, I think that today, for example, we can install--either 
today, or very shortly--hard-end, or more survivable leaky 
feeder systems. A leaky feeder system is a hybrid system, it is 
wireless part of the way, and then it relies on a hard-wired 
backbone to get out of the mine. If the hard-wired backbone is 
far enough from where the explosion is, it won't be 
compromised. I think, in West Virginia, many of the companies 
are considering that as one viable option, and that's a good 
option, because it advances what we have in many mines today, 
although there are some number of underground coal mines that 
are already using that technology, and have been using it for 
some time.
    But then there's the opportunity to try and build on these 
legacy systems. So, for example, the systems that would be put 
into the West Virginia mine, if the Federal definition of 
wireless becomes consistent with the State definition, then in 
a year, 2 years, as these more advanced systems come on, they 
will utilize the existing leaky feeder backbone that's already 
in place.
    The military system, for example, we're very excited about, 
because it will work with these legacy systems, it will work 
with the leaky feeder system. But, if the leaky feeder is 
compromised in an explosion or a fire, without the miner ever 
knowing it, the software-defined radio will switch to a medium 
frequency, and medium frequency is very parasitic, it will hop 
a ride on a water line, on a conveyer structure, on a wire 
corridor life line, and just find its way through the mine. And 
then when it gets close to the leaky feeder backbone that is 
not compromised, it'll jump back onto the leaky feeder 
backbone, and out of the mine. The military system will make 
that possible. And I think that represents a tremendous 
advance. It's not the perfect system, but it represents a 
tremendous increase in the protections afforded to mine 
workers.
    Senator Murray. Dr. Kohler, as you know, problems with mine 
seals have been determined to contribute to several of the coal 
mine fatalities. I know that NIOSH drafted a report for 
comments to be submitted by late March of this year, and last 
Friday issued an emergency temporary standard to strengthen the 
requirements for mine seals, requiring them to withstand up to 
50 psi of force. Can you talk a little bit about that? And what 
recommendations do you have with regard to mine seals?
    Mr. Kohler. NIOSH completed its final report now, or final 
draft on the mine seals--all of the original recommendations in 
the draft report withstood the scrutiny of the peer review 
process, although there were a number of small enhancements and 
improvements made to the report. So, the report's 
recommendations are as they stood originally.
    You're correct, also, that MSHA has issued an emergency 
temporary standard, I have not had a chance to review that 
standard, so I can't comment on it.
    Senator Murray. Are you continuing to explore the need to 
further strengthen that standard?
    Mr. Kohler. I think that we would like to look at that 
standard, their ETS, and see how it compares to our 
recommendations in our report.
    Senator Murray. A number of recent mine fatalities have 
been related to workers getting caught in operating equipment. 
It would appear that mine owners are not complying with the 
longstanding ``lock-out, tag-out'' standards. Can you talk to 
us about what NIOSH has done to address the ``lock-out, tag-
out'' challenges in our mines?
    Mr. Kohler. Yes, we've done both training interventions, 
and technology interventions. NIOSH developed, for example, a 
proximity warning system to prevent a mine worker from being 
pinched between a rock and a hard place, if you will. Small 
belt-wearable unit, if the mine worker gets too close to a 
particular piece of equipment, he gets a warning, and if he 
gets within a red zone, it actually de-energizes the equipment. 
So there are--and that technology has been patented and 
licensed and is manufactured, there are options for trying to 
attack this problem of powered haulage fatalities and injuries.
    Senator Murray. While you're here, I wanted to ask you one 
other question, it's about Black Lung disease which young 
miners are still coming down with. After three decades of focus 
on this issue, you would think that there would be better new 
technology and stronger health and safety rules.
    Can you talk to us about any changes in the coal extraction 
processes that might be contributing to the continued high rate 
of Black Lung?
    Mr. Kohler. Yes, it's a multi-faceted problem, but in the 
past 5 years, there have been over 5,000 Black Lung deaths, 
okay, and that's despite years and years of progress, despite 
the fact that the numbers are coming down, we're still seeing 
in young miners, the development of very rapidly progressing 
and very serious coal worker pneumoconiosis. This is a long-
term disease that develops over many years, and clearly we need 
a new approach.
    One opportunity that exists is with the new PDM, the 
Personal Dust Monitor. The PDM allows the mine worker to know, 
in real time, what the exposure is. We did some studies, and 
we're ongoing studies, we're looking at how miners use the PDM.
    In the most recent case, after just a couple of weeks of 
wearing the PDM, the mine workers reduced their exposure by 50 
percent, because they knew in real-time what the exposure was, 
so they were able to make changes to the controls to drop the 
dust down right then and there, rather than having to wait a 
couple of weeks to find out, when it's too late.
    Secondly, the PDM records the exposure, and that's 
downloadable to a database every day. So, it then becomes a 
tool, for mine management and engineering to use to improve 
dust control, by knowing exposures every single day, it also 
allows us to ensure that exposures are being kept low every 
single day, not just on certain designated sampling days. So, 
that's one very important technology that would be a new 
approach, and might allow us----
    Senator Murray. This is still in the testing process?
    Mr. Kohler. No, I wouldn't characterize it that way. We've 
really finished all of the testing on the PDM, and those tests 
have shown it to be more accurate, more precise, more reliable 
than the existing----
    Senator Murray. Is it voluntary, at this point?
    Mr. Kohler. It is voluntary. And it is not manufactured at 
this point, the manufacturer is waiting to see what the market 
is going to be for such a device.
    The manufacturer, Thermoscientific, has suggested just a 
week or two ago in a partnership meeting that we had with 
labor, industry, MSHA and NIOSH, that they could have the 
device available for sale in approximately 4 to 6 months, after 
all rulemaking activities related to the device are finish. So, 
this is within our reach.
    At the House hearing last week, there was also some talk of 
dust monitors, and this technology, it's been a 10-year path to 
walk to get it to where it is, but we now have a tool at our 
disposal.
    Senator Murray. OK. Thank you very much.
    Senator Isakson.
    Senator Isakson. Just one question, on mine seals. Didn't I 
understand that there's a doubling of the requirement in terms 
of the strength of those seals? Is that----
    Mr. Kohler. In the ETS? You're asking if there's a 
doubling? I have not had a chance to review it, so I don't know 
what it says.
    Senator Isakson. Would you check on that and let me know?
    Mr. Kohler. OK.
    Senator Isakson. Because I had understood they had 
increased both strength as well as testing. Testing and visual 
inspection on a required regular basis on those seals, so if 
you would find that out for me, I would appreciate it.
    Mr. Kohler. I will do that.
    Senator Murray. Senator Rockefeller, do you have any 
additional questions?
    Senator Rockefeller. I like what you said about testing 
every day on dust level samples, because that's sort of the 
opposite of TV sweeps, right? In other words, they know it's 
coming up, so they put their most horrible and gory programs 
on, to make sure that lots of people will watch. This is the 
opposite kind of philosophy. And, I like that.
    If they are being measured every day, that's the measuring 
of the miner. That means, that if the measure of the miner is 
not doing well, the consequence for the coal company should 
have some effect. There should be some consequence for them. 
That's not necessarily the case, so isn't it just in the sense 
of figuring out what the dust, what the Black Lung, so to 
speak, intake is on a daily basis, and dust levels on a daily 
basis, but there's not necessarily a relationship between that 
and what the mine has to do?
    Mr. Kohler. I can't speak as to how MSHA may make a 
consequence for what the readings are, but I can say that from 
a science and engineering application point of view, this gives 
the mine workers, and mine management, a tool that, in real 
time, they can change their environment, so that they will not 
be exposed to these concentrations of dust that can lead to 
Black Lung. And they'll be able to do this, shift after shift 
after shift.
    Senator Rockefeller. But, over the 100-year history of the 
coal mines, that has not been the case. Now, NIOSH has not been 
around to measure it on a daily basis. Do you send to the coal 
companies, on a daily basis, the measurements within their 
individual mines?
    Mr. Kohler. No, with this technology, this monitors, 
actually, part of the cap lamp, so that it's built into the 
battery, and it's built into the cap lamp. Each day--and as 
they work, they can look down and they can see what their 
exposure is, and what their projected exposure is, and they can 
act on that.
    When they leave the mine----
    Senator Rockefeller. You're talking about the miner?
    Mr. Kohler. Yes. And when they leave the mine, whatever 
value was accumulated in their monitor is downloaded to a 
database.
    Senator Rockefeller. To a database where?
    Mr. Kohler. Well, that is, could be determined, it's 
certainly at the mine. And that database could be available, it 
could be accessible to us, to others. But the very useful thing 
is that a record can be made of what the actual exposure was.
    Senator Rockefeller. No, and I very much agree with you and 
applaud you for what you're evidently doing. But, the only 
consequence that moves me, is if the data which is coming down 
which shows very irregular days, or good days, bad days, at an 
alarming level. This doesn't make much sense, but it makes my 
point. Very few Appalachians ever get to go into a coal mine, 
eventhough it's their culture, and their psychology. You have 
to either be a Governor, or Eleanor Roosevelt, or somebody else 
to get in there. And, that's for safety reasons, and that makes 
sense.
    I went in very frequently when I was a Governor, and I 
always noticed that everything was just like somebody had 
painted a new house. In other words, the walls were all dusted, 
and everything was all beautiful.
    Now, if you have a daily measurement, you can't do that. 
But, the only point of having the daily measurement is that 
there be a consequence if the daily measurement falls below an 
acceptable standard, or rises above an acceptable standard. And 
that, you say, is up to MSHA, and not up to you?
    Mr. Kohler. That is correct, I mean, as the enforcement 
agency, they----
    Senator Rockefeller. Do you and MSHA talk about that?
    Mr. Kohler. Excuse me?
    Senator Rockefeller. Do you and MSHA talk about that?
    Mr. Kohler. We talk about what exposure levels should be. 
We do not talk to them about their assessment of penalties or 
consequences, but certainly I would agree that there has to be 
a consequence for not achieving a statutory requirement.
    Senator Rockefeller. But, wouldn't that really push you 
towards talking with them about what consequences ought to be? 
Because it's not my impression that mines willingly do that. 
They do that under pressure. And, I don't have any objection to 
that, because that's the American way. And, it's been that way 
always.
    But, it does depend upon you and the database linking up 
with MSHA, and their scanty budget, and--in my judgment--
somewhat faulty, recently, those are lax attitudes towards coal 
mine safety. And then to the coal producer, himself or herself. 
In other words, the link has to follow for there to be a 
consequence, As well as, that we know about it.
    Mr. Kohler. Yes.
    Senator Rockefeller. Thank you.
    Senator Murray. Senator Brown.
    Senator Brown. I just want to followup with Senator 
Rockefeller, because I think he's exactly right. You use terms 
like, ``the data the miner collects every day,'' the exposure 
of this dust. You said the data, you used the term, ``could be 
accessible,'' the record, ``could be made''--how do we assure 
that on several levels. First, that the mine administrators 
know the level; second, that the mine regulators at MSHA know 
the level; and third, that they have that data to precipitate 
action. You have that data to collect and contribute to public 
health, if you will, by direct action, but also by studying and 
learning from it. How do we make sure that this data goes where 
it ought to, as Senator Rockefeller suggested? Rather than 
having to be pressured in any particular time, that it 
automatically--is it sort of beyond the reach, that it could be 
reported every day, is that something that makes sense? It 
sounds like it does, from the line of his questioning.
    Mr. Kohler. It could be reported every day, I mean, the 
data is available, we would certainly recommend that the data 
be examined by everybody--by regulators, by researchers, and 
certainly by mine management.
    Senator Brown. And, why isn't it?
    Mr. Kohler. Well, right now, it's not available, this 
device is not being used, yes, but it offers that opportunity, 
once it's commercialized.
    Senator Brown. What will precipitate everyone getting it? 
Who needs to make that decision, the mining companies, the 
Government? Who?
    Mr. Kohler. It would be my opinion that a regulation 
requiring its use would ensure that it would be available to 
every working section of every coal mine in this country.
    Senator Brown. Thank you.
    Senator Murray. Senator Rockefeller had one last question.
    Senator Rockefeller. Thanks, Madame Chairman.
    Following up, on Senator Brown's question--the data which 
you collect, is that turned over to coal mines, is that their 
property? And, if it's their property, is it not MSHA's 
property?
    Mr. Kohler. Strictly speaking, with these devices, we don't 
collect the data. The mine workers are actually collecting the 
data, because they are wearing the device. And when they 
download the data at their change house, or wherever each day, 
it is there, it belongs to the mining company, or whoever else 
has statutory access.
    Senator Rockefeller. So you're saying that MSHA does not 
possess that data in a way that it can use it to cause 
consequence?
    Mr. Kohler. At the moment, they don't. But if this device 
were used in the mines, there would be no reason why they could 
not establish policies about how they would access it, and how 
they would use it. And I would hope that they would do that, so 
that we could get the full benefit of this technology.
    Senator Rockefeller. Thank you.
    Senator Murray. Thank you very much, Dr. Kohler.
    We are now going to turn to our second panel. If they would 
like to come forward while I introduce them.
    We have Dennis O'Dell, he's the Administrator of Health and 
Safety for the United Mine Workers of America, he worked as an 
underground coal miner for over 20 years and a member of a mine 
rescue team.
    Steve Bessinger is the Plant Manager for BHP Billiton, San 
Juan Mine Coal Operation and Waterflow in New Mexico, and has 
worked in, and managed, mine operations for over 25 years.
    Bruce Watzman is the Vice President of Safety and Health 
for the National Mining Association. Bruce and the NMA were 
important partners in the development of key health and safety 
provisions that were included in the MINER Act.
    We look forward to hearing from all of you.
    And Mr. O'Dell, if you're ready, we'll begin with you.

STATEMENT OF DENNIS O'DELL, ADMINISTRATOR, DEPARTMENT OF HEALTH 
 AND SAFETY, UNITED MINE WORKERS OF AMERICA, FAIRFAX, VIRGINIA

    Mr. O'Dell. Thank you, Madame Chair.
    Madame Chair and members of the committee, I want to thank 
you for the opportunity for being able to appear before you 
today. As the Administrator of Occupational Health and Safety 
for the United Mine Workers of America, I represent the Union, 
that for 117 years, has been an unwavering advocate for miner's 
health and safety.
    As you heard Senator Murray say, I personally spent close 
to 20 years underground as a laborer, performing every task 
involved associated with mining coal. Twelve years as a Health 
and Safety rep for the Union, the last two as the 
Administrator--so this is my life, this is my passion, this is 
what I believe in. I'm a coal miner in a suit.
    I am thankful that Congress has played such a significant 
role in advancing miner's health and safety, and I'd like to 
express my appreciation to the leadership of this committee for 
your efforts to further 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.
    Over a year ago, shortly after the Sago and Alma disasters, 
many from the mining community testified at various Senate and 
congressional hearings about the inadequate protection for 
miner's health and safety. Following the Sago and Alma 
disasters, and after five more miners were killed on May 20th 
at the Darby Mine in Kentucky, Congress moved to enact the 
MINER Act. That law includes several important provisions aimed 
at helping miners after a mine emergency develops. It is most 
appropriate for you to consider whether the improvements 
Congress intended to accomplish through the MINER Act are being 
realized.
    Having said that, my testimony will focus attention on 
areas that MSHA needs to dedicate additional resources to fully 
implement the MINER Act, as well as other safety improvements. 
Some of the inadequacies in implementing the MINER Act may be 
linked to insufficient resources, however others can be tracked 
to the decisions made by the Agency in 2001 under then 
Assistant Secretary for Miner Health and Safety, David 
Lauriski.
    Under Lauriski, there were noticeable shift to a compliance 
system agency rather than an enforcement agency as they were 
intended to be, accompanied by withdrawal of many proposed 
regulations that, had they been passed, would have greatly 
improved the health and safety protections for miners 
throughout this Nation. Since Lauriski's departure, the Agency 
has had to do a great deal of playing catch-up to undo the 
damages that were put into place under his Administration.
    Although some changes have been made, I am sorry to report 
that MSHA's efforts over the past year will do little to change 
matters today, if a mine were to experience an explosion like 
the one at Sago or mine fires like the one at Alma. Indeed, the 
underground miners would likely fare no better than those who 
perished over 1 year ago today. Thanks to the MINER Act, we can 
presume that an incident would be reported within the initial 
15 minutes, however, there is no reason to expect that a 
sufficient number of mine rescue teams will be able to respond 
more quickly.
    There has been some growth in mine rescue teams over the 
last year, but overall, very little has been done in either 
expanding the number, or improving the proximity of, qualified 
mine rescue teams. So while some miners will be better 
protected, others won't.
    We still have some in the mining community saying that this 
can't be done. Because a weakened MSHA had allowed a relaxed 
policy on mine rescue regulations rather than enforce what the 
Mine Act had said, some small operators, who have, in the past, 
relied on State teams rather than employ their own mine rescue 
teams, are still trying to undermine the intent of the MINER 
Act. It needs to be made clear from this day forward, that all 
mining operations should employ their own mine rescue teams, so 
that all miners are protected as intended by the 2006 MINER 
Act.
    In 1969 and again in 1977, Congress mandated that 
explosion-proof seals or bulkheads be used to isolate abandoned 
or worked-out areas of the mine from active workings. However, 
in the years since, MSHA has promulgated regulations regarding 
seals that are much less protective than what Congress had 
intended. The standard was further eroded when MSHA approved 
the use of the type of seals, such as those that failed at 
Sago. These seals failed catastrophically and we all saw the 
end result, which was the death of 12 miners.
    While we applaud MSHA's recent release of their emergency 
temporary standard on seals, the UMWA has urged MSHA to require 
the construction of seals that meet the mandates of Congress 
and that they are simply to be explosion proof. We have further 
suggested in our comments to NIOSH's draft report--and intend 
to pass them on to MSHA--that all newly erected seals from this 
point forward should be continuously monitored, regardless of 
what its PSI strength is. This is the only way the operators 
will know what is exactly happening behind the seals so that 
miners can afford the 24/7 protection they deserve.
    For the most part, there is nothing in place that allows an 
operator to be able to locate trapped miners beyond the use of 
a dispatcher. The ability for a dispatcher to know exactly 
where the miners are at every moment of his or her shift is 
impossible. This method falls way short of the intent of a 
tracking device and MSHA needs to readdress how they approved 
this in their Emergency Response Plans.
    Safety chambers are not yet required, nor are safe havens 
prescribed. Eventhough chambers have been approved by some 
States, such as my own, in West Virginia, the debate still 
continues. Almost half the operators do not have a complete 
approved Emergency Response Plan as required by the MINER Act. 
Many miners caught in a disaster would likely have 1 additional 
hour of oxygen, as opposed to early 2006, so please keep in 
mind that it took more than 40 hours for the first mine rescue 
team to reach those at Sago. MSHA still allows mine operators 
to ventilate working sections with belt air and conveyor belts 
and our underground mines still have the ability to catch fire.
    Belt air was prohibited in the 1969 Act and again in 1977. 
Now, 38 years later, we have a technical study panel on the 
utilization of belt air and composition and fire retardant 
properties of belt materials in underground coal mines. It 
seems like all this group really needs to do is read what 
Congress adopted in 1977. It states under 303Y (1),

          ``In any coal mine opened after the operative date of this 
        title, the entries used as intake and return air courses shall 
        be separated from belt haulage entries, and each operator of 
        such mine shall limit the velocity of air course through belt 
        haulage entries to the amount necessary to provide an adequate 
        supply of oxygen in such entries. And to ensure that the air 
        they're in shall contain less than one volume percentum of 
        methane and--`here's the key'--such air shall not be used to 
        ventilate active working places.''

    We as miners are most appreciative that Congress has worked 
towards increasing MSHA's budget, so more mine inspectors can 
inspect mines to ensure compliance with the Mine Act, yet we 
just recently found out that MSHA is trying to eliminate their 
support staff and replace them with contractors under the A76 
Budget Competitive Outsourcing Initiative.
    This would be a huge blow to the support staff of our 
Nation's inspectors, further crippling their ability to do 
their job effectively and efficiently. This could also open the 
door as a tool, next, to replace our inspectors. The use of 
contractors within MSHA has already been proven to undercut 
miner's protection when MSHA's hotline, a toll-free number used 
by miners to call in hazardous complaints, was staffed with 
contractors.
    Senator Murray. Mr. O'Dell, if you could summarize the last 
of your comment. Sir, we want to make sure we have time for 
questions.
    Mr. O'Dell. Yes, Ma'am.
    We need to take this a step further, if I may. There's a 
few things that I'd like to list that we need to move on and 
address. Miners are still dying from Black Lung. The use of the 
device you heard Dr. Kohler talk about, Personal Dust Monitor, 
could be very helpful, but there's many obstacles that need to 
be overcome before this is implemented into the mining 
industry. With the development of PDM, we also need to look at 
a new standard for dust and silica. Miners should be provided 
with gas detectors so that they'll know the atmosphere they're 
working in. Atmospheric monitors should be required in the 
mines, so that miners know what's going on in their surrounding 
areas.
    We need to push new developments of the SCSRs. We need to 
actively pursue improved communication systems, stronger 
ventilation controls, a new rock dust standard, equipment 
manufacturers need to be held more to how they build this 
equipment so that they're less noisy, so the hearing loss can 
go down, and proximity devices should be required.
    This would be a good start to bring us up to where we need 
to be in the 21st Century. Miners deserve these kind of 
protections and we hope that, with your help, we can get these 
kind of protections. We expect MSHA to demonstrate a commitment 
to enforcing the MINER Act and we look forward to working with 
everybody in the mining industry to make this happen.
    Thank you and I'll be happy to answer any questions.
    [The prepared statement of Mr. O'Dell follows:]

                  Prepared Statement of Dennis O'Dell

    Thank you for allowing me this opportunity to appear before your 
committee. As Administrator of Occupational Health and Safety for the 
United Mine Workers of America (``UMWA''), I represent the union that 
for 117 years has been an unwavering advocate for miners' health and 
safety.
    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 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.
    Over a year ago, shortly after the Sago and Alma disasters, many 
from the mining community testified at various Senate and Congressional 
hearings about inadequate protection for miners' health and safety. 
Following the Sago and Alma disasters and after five more miners were 
killed on May 20, 2006 at the Darby Mine in Kentucky, Congress moved to 
enact the MINER Act. That law includes several important provisions 
aimed at helping miners after a mine emergency develops. It is most 
appropriate for you to consider whether the improvements Congress 
intended to accomplish through the MINER Act are being realized. The 
Union supports MSHA's efforts to require substantially more oxygen for 
every miner. The emergency mine evacuation rule also contains a number 
of important improvements. Having said that, my testimony will focus 
attention on areas that MSHA needs to dedicate additional resources to 
fully implement the MINER Act.
    Some of the inadequacies in implementing the MINER Act may be 
linked to insufficient resources. However, others can be tracked to 
decisions made by the Agency. In 2001, then Assistant Secretary for 
Mine Health and Safety David Lauriski told members of the National 
Mining Association that MSHA would ``collaborate more with mine 
operators on regulatory initiatives'' and become ``less confrontational 
with mine operators in an effort to provide companies with better 
compliance assistance.'' At a meeting with mine operators in Hindman, 
Kentucky, he bragged about his diminutive regulatory agenda. He noted, 
``If you've seen it you noticed it's quite a bit shorter than some past 
agendas.'' These policy statements were accompanied by a withdrawal of 
many proposed regulations by MSHA and a noticeable shift to compliance 
assistance. These compliance assistance programs divert precious 
resources away from enforcement. Perhaps most tragically and in many 
cases, MSHA has ignored the mandate of Congress by adopting regulations 
and policies that place miners at greater risk.

                    MINE INSPECTORS/MINE INSPECTIONS

    The Agency is experiencing great difficulty in fulfilling the 
mandatory inspections required under the Mine Act. The Union is 
convinced that the hiring and training of more MSHA inspectors must be 
a top and continuing priority. The Agency must have a full complement 
of properly trained personnel if it is to perform its primary job of 
enforcing the Mine Act. The ranks of the inspectors have been 
diminished over the years and we can expect further reductions as more 
of MSHA's long-time inspectors leave the profession as they reach 
retirement age. GAO identified this anticipated problem in 2003, yet 
GAO reports again in 2007 that MSHA still does not have a plan in place 
to address the anticipated retirements of its inspectors. Inspector 
positions must be filled by hiring qualified individuals from all 
segments of the industry, including rank and file miners. Current and 
new inspectors must all be outfitted with state-of-the-art equipment 
for personal protection and to perform their inspection duties. 
Sufficient monies must be allocated to ensure this equipment is readily 
available to these inspectors.
    As the number of inspectors have decreased, MSHA's field office 
specialists including ventilation specialists and its electrical and 
roof control support staff have been forced to carry out routine mine 
inspections. These specialists must be returned to their areas of 
expertise. The only way to accomplish this is to hire an adequate 
number of inspectors that will permit the specialists to focus on the 
job they are trained to do. In addition, the Agency must move 
immediately to train a sufficient number of inspectors to perform these 
technical tasks in the future.
    Congress must also ensure that funding levels at the Mine Academy 
in Beckley, WV remain sufficient to meet future training needs for mine 
inspectors. This facility is used to train mine inspectors and also 
offers comprehensive training for miners and other health and safety 
experts.

                                 SEALS

    In 1969 and again in 1977 Congress mandated that ``explosion proof 
seals or bulkheads'' be used to isolate abandoned or worked out areas 
of the mine from active workings. However, in the years since, MSHA has 
promulgated regulations regarding seals that are much less protective 
than what Congress mandated. The standard was further eroded when MSHA 
approved the use of Omega Block type seals such as those that were used 
at Sago. These Omega Block seals catastrophically failed as a result of 
the explosion at Sago and contributed to the deaths of all 12 miners.
    While we applaud MSHA's recent release of their Emergency Temporary 
Standard on seals, the UMWA urges MSHA to require the construction of 
seals that meet the mandates of Congress in that they are to be 
explosion proof. We have further suggested in our comments to NIOSH's 
draft report that all newly erected seals from this point forward be 
continuously monitored regardless of its psi strength.

                              REGULATIONS

    The UMWA believes that MSHA should adopt an aggressive regulatory 
agenda to address important issues in addition to those contained in 
the MINER Act, including:

     1. Improved Atmospheric Monitoring Systems
     2. Develop a Nationwide Emergency Communication System
     3. Revise MSHA's Approval and Certification Process for Equipment 
Approval
     4. Occupational Exposure to Coal Mine Dust (lowering exposure 
limits)
     5. Collection of Civil Penalties (mandatory mine closures for non-
payment)
     6.  Air Quality Chemical Substances and Respiratory Protection 
Standards (update personal exposure limits)
     7. Surface Haulage (truck, haul road, train and loadout safety)
     8. Respirable Crystalline Silica Standard (reducing quartz 
standard)
     9. Requirements for Approval of Flame Resistant Conveyor Belts
    10. Confined Spaces (tight quartered work areas)
    11. Training and Retraining of Miners (revision of Part 48)
    12. Surge and Storage Piles (dozer/feeder safety surface)
    13. Escapeways and Refuges
    14. Accident Investigation Hearing Procedures (make them public)
    15. Verification of Surface Coal Mine Dust Control Plans
    16.  Continuous Monitoring of Respirable Coal Mine Dust in 
Underground Coal Mines
    17. Modify Conferencing Process (Appeals of Citations)
    18.  Underground Coal Mining, Self-Contained Self-Rescuer Service 
Life Approval and Training

                       RECORDING FATAL ACCIDENTS

    Recently MSHA issued new guidelines for determining what 
constitutes a mine-related fatality. The ``Fatal Injury Guideline 
Matrix'' narrows the scope of what the Agency will define as a fatal 
accident chargeable to the mine operator. This will allow the Agency to 
report numbers that are artificially low and possibly skew the actual 
health and safety record of the mine and the industry. In addition, 
fatals not listed as mine-related will not get the same scrutiny as a 
chargeable accident. Without the formal investigation process, lessons 
learned will not be available to prevent similar events in the future.
    The Union also disagrees with the committee established by the 
Agency to review deaths where chargeability is in question. The 
committee is made up of upper-level MSHA employees and not open to 
other agencies, organizations or the public. This type of structure 
does not lend itself to a fair unbiased review of the situation.

                    IMPLEMENTATION OF THE MINER ACT

    In the MINER Act, Congress mandated timelines for its 
implementation. In some cases MSHA has failed to meet these deadlines. 
The Union urges Congress to allocate adequate funding to MSHA so it can 
fully implement this act within the time frames set by Congress.
    The Emergency Mine Evacuation Rule, which is separate from the 
MINER Act but ties into the self-contained self-rescuers (SCSRs) 
requirements, was finalized and made effective December 8, 2006. 
However, miners working underground today do not have all the 
protections that the Rule addresses. MSHA deems the operator to be in 
compliance with the Rule if it has placed an order for additional 
SCSRs. Although the Rule requires increased availability and storage of 
SCSRs, there is a backlog of orders for these life-sustaining units. 
The Union is extremely frustrated that more than a year after the Sago 
and Alma disasters many miners only have 1 additional hour of oxygen. 
In light of this backlog, the Union supports MSHA's approach to make 
the additional oxygen units equally available to all miners. In 
reality, it will still take a number of years before miners receive the 
protections mandated by Congress. Miners cannot wait for another mine 
disaster to occur to drive new technology; therefore, the Union 
strongly urges the development and approval of the next generation 
SCSR.
    Moreover, the finality of this emergency response and evacuation 
rule is somewhat uncertain as the National Mining Association (NMA) 
filed a court challenge. The Union is not certain which aspects of the 
rule NMA is contesting, but it is certain that such legal maneuvers 
delays the protections Congress mandated only last year.
    Congress understood the importance of requiring that mine operators 
have comprehensive emergency response plans at all their operations. 
The MINER Act permitted operators a 60-day period to prepare these 
plans and submit them to the Agency for review and approval. However, 
many of the mine emergency response plans that operators submitted were 
grossly inadequate and not worthy of approval. We are now beyond the 
deadline established by Congress. While we commend MSHA for not 
approving these faulty plans, we do believe it must be more aggressive 
and apply more pressure on the operators to get these plans completed. 
Unless MSHA takes decisive action and resolves all the remaining 
issues, miners will not get the mine emergency response improvements 
that Congress intended.
    Further, the mine emergency response plans are to be reviewed and 
re-approved by MSHA every 6 months. We are already beyond the original 
plan due date. If those first plans are not yet approved and fully 
implemented, how can we expect MSHA to handle these semi-annual 
reviews? Perhaps MSHA needs more manpower to handle this task, but 
whatever the answer, until every operation has an approved plan in 
place, miners are not getting the protections Congress intended.
    Very little has changed in the last year concerning the ability to 
communicate with and locate trapped miners. While we have learned more 
about this technology and understand that much is available, very few 
operators have taken advantage of it. Communication systems and 
tracking devices are areas that MSHA must pursue more aggressively. 
Current communication and tracking technology, including one-way text 
messaging and two-way wireless systems, some of which are available 
now, must be immediately installed in all mines. Any system that can 
increase the ability for miners to escape a mine emergency, even if it 
is limited in scope, must be utilized. The Federal Government, through 
NIOSH and MSHA, must fund and direct continued studies and research to 
develop the next generation of tracking and communication devices. As 
this newer technology becomes available, mine operators must be 
required to upgrade existing systems at all its operations.
    We are also troubled by MSHA's failure to undertake action to 
facilitate the creation and training of additional mine rescue teams. 
Congress in the MINER Act clearly outlined its intent regarding the 
need for additional mine rescue teams. In addition, the language 
clearly defines how this is to be applied at both large and small 
mines. While Congress allowed MSHA 18 months in which to prepare, 
finalize, and give effect to rules that increase and enhance mine 
rescue team requirements, so far MSHA has not adequately addressed this 
need. The need is real and it is immediate. In the not-too-distant 
future MSHA will need additional funding to certify that mine rescue 
teams are qualified as contemplated by the MINER Act.
    Over the past 20 years MSHA and some operators have weakened the 
intent of the current regulations regarding mine rescue protections. 
The existing mine rescue team structure is spread too thin. It takes a 
lot of time and much practice for any mine rescue team to function 
well. The UMWA has training facilities and is willing to provide mine 
rescue training and first responder training if we receive the 
necessary funding. Miners cannot afford to wait any longer for the 
training of new teams to begin.

                     COLLECTION OF CIVIL PENALTIES

    In the MINER Act, Congress charged MSHA with revising and enhancing 
its penalty structure. The Agency needs to do a much better job of 
tracking and collecting the fines it imposes and it should escalate the 
pressure when an operator refuses to pay a final penalty.
    Last year MSHA blamed computer problems on its inability to track 
fines; we understand that it still faces some technological challenges. 
If that is the case, then MSHA needs to fix the problem. When fines go 
unpaid it not only gives an unfair competitive advantage to the 
delinquent operator, but that operator's disregard for the mine health 
and safety laws and regulations imposes excessive risk on its 
employees. Moreover, the fine system itself is not working well. 
Indeed, GAO reported that almost half of the fines that underground 
coal operators challenge are compromised, and that of those contested 
the fine is typically cut by about 50 percent!
    To the extent that MSHA takes the position that it cannot close an 
operation for having substantial unpaid fines, we submit that Congress 
should grant the Agency such authority. MSHA's top personnel claim that 
if it had that authority the Agency would exercise it to close 
operators who refuse to pay their fines. We would welcome that.

                              MSHA HOTLINE

    The Union has complained for some time that the current hotline 
system miners use to report hazardous conditions is ineffective. 
Recently, a member of the UMWA called the 800 number listed on MSHA's 
Web site to report a problem at the mine where he worked and was 
frustrated by problems he encountered. The individual who answered the 
call, a contract employee, did not have any knowledge of mining, making 
it extremely difficult for the miner to convey the message. Further, 
the individual at the call center was not remotely familiar with MSHA's 
District structure and was therefore uncertain which office should 
receive the complaint.
    The Union has stressed on many occasions that the MSHA hotline 
should be staffed 24 hours a day, 7 days a week by MSHA personnel with 
an understanding of the mining industry and the Agency. The current 
practice of contracting this work out to call centers lessens miners' 
health and safety.

                                BELT-AIR

    In keeping with the mandates of Congress in the 1969 Coal Act and 
the 1977 Mine Act, which strictly prohibits the use of belt-air to 
ventilate working places, the Union has historically been opposed to 
the use of belt-air to ventilate the working places. The 2006 Alma 
disaster is a reminder that there is no safe way to ventilate working 
sections using belt-air. This mine fire was intensified by air from the 
belt entry and the contaminated air was dumped onto miners working 
near-by. In addition, conveyor belts used in the mining industry must 
be made of non-flammable material.
    In the MINER Act, Congress directed that there be created a 
Technical Study Panel to provide independent scientific and engineering 
review and recommendations with respect to belt air and belt materials. 
The Study Panel is then to issue a report to the Secretaries of Labor 
and Health and Human Services, as well as the Senate Committee on 
Health, Education, Labor, and Pensions, and the House Committee on 
Education and Labor. While this Technical Study Panel has been 
constituted and has begun meeting, we harbor reservations about its 
administration. Congress was silent as to its administration, but MSHA 
staff is providing the support personnel. If its first meetings are any 
indication, MSHA seems more invested in defending the belt air 
decisions it has already made than simply servicing the Study Panel. 
Congress assigned this Study Panel to offer an ``independent'' review 
and recommendations and we hope it can overcome MSHA's bias in favor of 
belt air.

   FUNDING FOR ADDITIONAL PROGRAMS AND HEALTH AND SAFETY PROTECTIONS

    The Union would urge Congress to adequately fund other agencies and 
programs that advance the Health and Safety of the Nation's miners. 
These include:

     Pittsburgh Research Center
     Lake Lynn Facility
      Appalachian Laboratory for Occupational Health and Safety 
in Morgantown, WV
     Approval and Certification Center
     Personal Dust Monitors (PDM)
     Colorado School of Mines

                               CONCLUSION

    Although some changes have been made, I am sorry to report that 
MSHA's efforts over the past year would do little to change matters 
today if a mine were to experience an explosion like the one at Sago, 
or a mine fire like the one at Alma; indeed the underground miners 
would likely fair no better than those who perished over 1 year ago. 
Thanks to the MINER Act, we can presume that any incident would be 
reported within the initial 15 minutes. However, there is no reason to 
expect that a sufficient number of mine rescue teams would be able to 
respond more quickly. There has been some growth in mine rescue teams 
over the last year but very little overall progress, in either 
expanding the number or improving the proximity of qualified mine 
rescue teams has taken place across the board. So while some miners 
will be better protected, others won't. We still have some in the 
mining community saying that it can't be done. Because a weakened MSHA 
had allowed a relaxed policy on mine rescue regulations rather than 
enforce the Mine Act, some small operators who have in the past, relied 
on State teams rather than employ their own, are still trying to 
undermine the intent of the MINER Act. It needs to be made clear from 
this day forward that all mining operations will employee their own 
mine rescue teams so that all miners are protected as intended by the 
2006 MINER Act.
    For the most part there is nothing in place that allows an operator 
to be able to locate trapped miners beyond the use of a dispatcher. The 
ability for a dispatcher to know exactly where the miners are at every 
moment of his or her shift is impossible. This approved method falls 
way short of the intent of a tracking device and MSHA needs to re-
address the approved Emergency Response Plans to fix this.
    Safety chambers are not yet required, nor are safe havens 
prescribed. Eventhough chambers have been approved by some States such 
as West Virginia, the debate continues. Almost half of the operators do 
not have a complete approved emergency response plan as required by the 
MINER Act. Many miners caught in a disaster would likely have 1 
additional hour of oxygen as opposed to early 2006, but please remember 
that it took more than 40 hours for the first mine rescue teams to 
reach the miners at Sago.
    MSHA still allows mine operators to ventilate working sections with 
belt-air, and conveyor belts in our underground mines still have the 
ability to catch fire. The use of belt air was prohibited in the Mine 
Act. Thirty-eight years later we have a Technical Study Panel on the 
Utilization of Belt Air and the Composition and Fire Retardant 
Properties of Belt Materials in Underground Coal Mining. Seems like all 
this group needs to do is read what Congress adopted in 1969 and again 
in 1977. It states under 303(y) (1):

          ``In any coal mine opened after the operative date of this 
        title, the entries used as intake and return aircourses shall 
        be separated from belt haulage entries, and each operator of 
        such mine shall limit the velocity of the air coursed through 
        belt haulage entries to the amount necessary to provide an 
        adequate supply of oxygen in such entries, and to insure that 
        the air therein shall contain less than 1.0 volume per centum 
        of methane, and such air shall not be used to ventilate active 
        working places.''

    We are most appreciative that Congress has worked towards 
increasing MSHA's budget so more mine inspectors can inspect mines to 
ensure compliance with the Mine Act, yet we just recently found out 
that MSHA is trying to eliminate their secretarial staff and replace 
them with contractors under the A-76 Budget Competitive Outsourcing 
Initiative. This would be a huge blow to the support staff of our 
Nations inspectors further crippling their ability to do their job 
effectively and efficiently. This could also open the door as a tool to 
next replace our Inspectors. The use of contractors within MSHA has 
already been proven to undercut miners protection when the MSHA 
Hotline, a toll free number used by miners to call in hazardous 
conditions or complaints, was staffed with contractors. Miners' calls 
never received the proper attention. Calls went unanswered. Unsafe 
conditions at the mine went un-addressed, and to this day, miners still 
continue to have problems with the Hotline call center.

    1. We also need to take the next step in being more proactive in 
our approach to miners protection. Miners need to have the best tools 
available, not only from a production standpoint, but better health 
protections as well. Miners are still dying from Black Lung. The use of 
a new device called a Personal Dust Monitor can be a very helpful tool 
in keeping miners from being overexposed to high levels of dust 
concentrations.
    2. With the development of the PDM we also need to explore a new 
dust standard that would reduce the miners level of exposure to coal 
dust and silica.
    3. Miners should be provided multi-gas detectors to alert them to 
the mine atmosphere they are working in.
    4. Atmospheric monitoring systems should be mandated at all mines 
to alert miners if any dangers occur throughout the entire mine, not 
just in the area they are working.
    5. We need to push the development of a new self-rescuer that will 
last longer and be more user-friendly when switching from one to 
another if necessary during escape.
    6. We need to actively pursue improved communication systems. I was 
made aware this week that wireless technology does exist but hasn't 
been explored to the extent it should.
    7. Stronger ventilation controls should be required that are used 
to separate our fresh air escapeways that miners have to travel in the 
event of a mine fire.
    8. A new rock dust standard should be put in place that would 
decrease the amount of coal dust that is currently allowed to 
accumulate on the mine roof, ribs, and floor.
    9. Equipment manufacturers should be made to design less noisy 
mining machinery, which would help reduce hearing loss.

    This would be a good start. If we do these things then maybe we can 
bring our safety standards up to the 21st century. There are other 
recommendations we have listed in our Sago report, which has already 
been made available to you. The report can also be seen on our Web site 
at UMWA.org.
    We expect MSHA to demonstrate a commitment to enforcing the Mine 
Act and to improving miners' health and safety so that our industry 
will never again experience another mine disaster like Sago or Alma. 
New technology is progressing on a daily basis and the UMWA urges MSHA 
to require mine operators to employ these technologies as they become 
available. This will greatly improve miners health and safety 
protections, which is long overdue.
    Again thank you and I will be happy to answer any questions that 
you may have.

    Senator Murray. Thank you very much, Mr. O'Dell.
    Dr. Bessinger.

 STATEMENT OF S.L. BESSINGER, Ph.D., PE, ENGINEERING MANAGER, 
             BHP BILLITON, SAN JUAN COAL COMPANY, 
                     WATERFLOW, NEW MEXICO

    Mr. Bessinger. Good morning, Madame Chair and distinguished 
members of the subcommittee. My name is Dr. Steve Bessinger and 
I'm a mining engineer and the Engineering Manager for BHP 
Billiton, San Juan Coal Company in New Mexico.
    On behalf of my company, thank you for inviting us to 
participate in the subcommittee's oversight hearing concerning 
the MINER Act. We hope that your invitation to participate is 
in recognition of our tireless efforts on safety at San Juan 
Mine.
    Our total commitment to safe production can be summarized 
by a single concept, and that is zero harm. This is a principle 
that each of us at BHP Billiton live by every day. We believe 
that our safety program is among the strongest in the industry. 
However, we work to improve our performance on a continuing 
basis.
    San Juan Mine is a part of BHP Billiton's New Mexico coal 
operations. BHP Billiton is the world's largest diversified 
natural resources company and the New Mexico operations are 
composed of the Navajo Mine, a surface coal mine located on the 
Navajo Reservation, and the San Juan Mine, an underground 
longwall operation. Here is a picture of what our longwall 
equipment looks like installed underground.
    We employ over 1,000 people, of whom 65 percent are Native 
Americans. Our mines are essential to the electricity supply of 
California, Arizona, New Mexico, Utah, and Colorado. Because of 
BHP Billiton's focused risk assessment approach to safety, we 
were already doing most of what the MINER Act requires. Prior 
to startup of the underground mine at San Juan, we performed an 
extensive, site-specific risk assessment, which identified 
risks unique to our mine and some common to other coal mines.
    In the proactive manner, mitigation strategies were then 
developed and implemented to manage the risks consistent with 
our zero-harm objective. Nevertheless, it's been a significant 
challenge to meet the requirements of the act in the timeframe 
provided, not to mention the associated cost.
    In some cases, technology has been a challenge, such as the 
mandate for wireless, through-the-earth communications, and 
personnel tracking. Technology is adapting and developing, but 
is relatively slow because the incentive to developers is 
limited. With only 466 operating underground coal mines in the 
country, the market for such technology is small compared to 
other markets where technology develops quickly, such as mobile 
phone and personal computing technology. The technology 
developed for mining is also expensive because the embedded 
development cost must be covered over a relatively small number 
of units, compared to high-volume markets.
    One of the best and fundamental requirements of the MINER 
Act are the emergency response plans, which we call ERPs. These 
require us to provide for the evacuation of miners should a 
mine emergency occur and provide for sustenance of miners if 
they're unable to escape. Here's a photo of one of our 
permanent underground escape shelters currently existing in our 
mine. After 8 months of diligent work, we're proud to tell you 
that our ERP has been approved and we believe it to be the 
first in the Nation.
    The theme common of the MINER Act is the need to stimulate 
research and development for mining industry needs. More needs 
exist, including the needs for research and development related 
to monitoring of mine atmospheres, prevention of gas 
explosions, mine seals, roof control, next generation self-
rescuers, and wireless communication technology.
    In conclusion, I'd like to invite the subcommittee members 
to visit BHP Billiton's New Mexico operations. Our thousand-
strong team would be glad to host you on visits to San Juan 
Navajo Mine. Thank you for the opportunity to participate in 
this hearing.
    [The prepared statement of Dr. Bessinger follows:]

           Prepared Statement of S. L. Bessinger, Ph.D., P.E.

                              INTRODUCTION

    Good morning Madame Chair and distinguished members of the 
subcommittee. My name is Steve Bessinger and I am the Engineering 
Manager for San Juan Coal Company, a 100-percent-owned subsidiary of 
BHP Billiton. On behalf of BHP Billiton, thank you for inviting us to 
participate in the subcommittee's oversight hearing concerning the Mine 
Improvement and New Emergency Response Act of 2006 or the ``MINER 
Act.''
    To begin, we strongly support the goals and purposes of the MINER 
Act. At the heart of the new law, in our view, is the requirement for a 
mine-specific accident response plan. It has been no small task to meet 
the immediate mandates of those requirements, and we have more 
challenges awaiting us over the next several years as the milestone 
dates of the act arise (for example the wireless communication and 
tracking requirements).
    For us the other most important thrust of the MINER Act is a 
strengthening of the Federal Government's capabilities regarding mine 
safety research. This re-invigorated research program should help the 
industry meet both MINER Act research needs as well as other mine 
safety problems. Our statement addresses these two critical issues in 
more detail below.
    An overriding commitment to the safety of our employees and 
contractors is fundamental to BHP Billiton's strategy and is deployed 
through all its operations. For many years we have worked tirelessly 
towards our goals and to address the challenges presented in this area. 
Before its enactment on June 15, 2006, our safety program already 
incorporated a number of the MINER Act's principles. However, although 
the MINER Act contains much that is familiar to us, its requirements 
have presented, and continue to pose significant demands. We believe 
that our company is on schedule with MINER Act compliance.

              BHP BILLITON SAN JUAN UNDERGROUND COAL MINE

    By way of brief introduction, the San Juan Underground Coal Mine is 
part of BHP Billiton's New Mexico Coal Operations. BHP Billiton is the 
world's largest diversified natural resources company. We have more 
than 100 operations in approximately 25 countries throughout North and 
South America, Africa, Asia, and Australia. Around 7 percent, or 2,660 
of our employees globally are located in North America, with the 
majority of these within the Unites States. As well as our coal 
operations in New Mexico, we have petroleum activities in the Gulf of 
Mexico, the headquarters for our global petroleum business is located 
in Houston, Texas, and part of our copper business operates in Arizona.
    Our New Mexico Coal Operations are located in the Four Corners area 
of northwestern New Mexico. We currently have two operating coal mines: 
(1) the Navajo Mine, a large surface coal mine located within the 
boundaries of the Navajo Reservation; and (2) the San Juan Mine, an 
underground longwall operation. About 65 percent of our salaried and 
hourly workforce of 1,000 employees is comprised of Native Americans. 
At both mines our miners are represented by Local 953 of the 
International Union of Operating Engineers. The two mines produced 
approximately 16.5 million tons of coal in 2006. The Navajo Mine is the 
sole supplier of fuel to the Four Corners Generating Station operated 
by Arizona Public Service (``APS''); and the San Juan Mine is the sole 
supplier of fuel for the San Juan Generating Station operated by Public 
Service of New Mexico (``PNM''). These power plants furnish electricity 
to New Mexico, Colorado, Utah, Arizona, and California. Our New Mexico 
Operations had a 2006 payroll of $77 million, and we purchased 
equipment, services, materials, and supplies worth $156 million. In 
2006, our New Mexico Operations paid State, local, Tribal and Federal 
taxes and royalties totaling almost $118 million, plus State and 
Federal payroll income taxes and State Corporate Income tax.
    Historically the San Juan Mine had been a surface coal mine, but as 
its surface mineable reserves became depleted we began to develop an 
underground longwall mine in 2000. Underground mining commenced in 
February 2001 and full production capacity was reached in early 2004. 
There are sufficient coal reserves to meet our contractual commitments 
to at least 2017. Because of a scarcity of experienced underground and 
surface miners, it was necessary for us to recruit and train a 
workforce of nearly 80 percent inexperienced miners for the underground 
workforce. For example, as you can see from the attached picture 
(Attachment 1), we actually constructed a portion of the longwall 
machine on the surface, about one fifth of its installed size, a total 
of three football fields in length when complete. We trained our miners 
on it until they became comfortable with their tasks. As the Senators 
may know, the longwall method of mining is the safest and most 
productive method of underground coal mining techniques. Longwall 
mining is highly productive because of its focus on a systems approach 
to mining and the use of advanced technology (See the photos in 
Attachments 2 and 3). A unique safety aspect of our mine amongst other 
U.S. mines deserves a brief explanation: that is, we use what is called 
a bleederless longwall ventilation system as a control to suppress the 
natural tendency of our coal seam to spontaneously combust. This 
includes the use of a nitrogen injection system to manage oxygen 
content to safe levels. This helps to minimize the risk of an explosion 
or a spontaneous combustion heating event. The spontaneous combustion 
characteristic of our coal is a relatively unusual circumstance, not 
found at most underground coal mines in the United States.

     BHP BILLITON SAN JUAN COAL COMPANY'S SAFETY AND HEALTH PROGRAM

    From the outset of the Mine's development, our approach to safety 
and health has been grounded upon a systematic risk-based analysis 
program focused on the specific characteristics of our mine. This is 
consistent with the 2006 recommendations of the National Mining 
Association's Mine Safety Technology and Training Commission, chaired 
by Professor Larry Grayson. BHP Billiton fully supports those 
recommendations. More specifically, we implemented a program comprised 
of detailed safety process components and a safety process matrix to 
address identified risks. It involves all of our hourly and salaried 
employees, as well as contract miners and equipment service 
representatives. This embraces BHP Billiton's Fatal Risk Control 
Protocols that are mandatory at each site around the world. Each 
operation within BHP Billiton has access to best practices that have 
been tested, modified and documented in more than 100 operations within 
the Group. But the key is that this common methodology also allows us 
to identify risks posed by each mine and manage those specifically, 
rather than manage every mine the same. Some of our success might also 
be attributed to our behavioral-based safety programs amongst 
management, employees and contractors. One example was our Stop-Look-
Assess-Manage (``SLAM'') process which was recently embraced by MSHA. 
Our bottom line is that at any BHP Billiton site, we seek to create a 
mindset and an environment where people believe it is possible to work 
injury-free and everyone understands they are empowered to manage safe 
production by stopping work at any time they feel the activity is 
unsafe. This occurs regardless of where they are in the world, what 
role they undertake, or in which business they work. We call this 
objective Zero Harm.
    Our program at the San Juan Mine is designed to ensure we comply 
with the requirements of the Federal Mine Safety and Health Act of 
1977, as amended by the MINER Act. But rather than just targeting 
compliance, we bring known best practices to bear to manage our 
assessed risks. San Juan's personnel engage in regular dialogue with 
our BHP Billiton colleagues and other experts in the United States, 
Australia, South Africa and around the world.
    When all is said and done, we are very pleased there have been no 
fatalities in the history of the San Juan Coal Company. While our 
injury rate for 2006 was 3.26 versus the national average of 4.88, we 
will not be satisfied with anything less than a continuation of our 
first quarter 2007 results which were 0.00. We recognize this is a 
journey and not a destination. In all of our operations it is critical 
that we are vigilant in identifying new, emerging or changing risks, 
and managing those risks in a way that is appropriate for each site. 
This must continue to be the case because there is always room for 
further improvement. Please let me take this opportunity to invite you, 
Madame Chair, and members of the subcommittee to visit our mines. All 
1,000 members of our New Mexico Coal team are proud of our operations 
and we would be very pleased to provide you with a tour of our New 
Mexico Operations.

  BHP BILLITON SUPPORTS THE MINE SAFETY AND HEALTH ACTIVITIES OF THE 
      NATIONAL MINING ASSOCIATION AND THE MINE SAFETY AND HEALTH 
                             ADMINISTRATION

    BHP Billiton is a member of the National Mining Association 
(``NMA''). Like NMA, we are strong supporters of the goals and intent 
of the MINER Act. We work closely with MSHA on the ground as a 
stakeholder in our safety process. Indeed, we engage in healthy debate 
and consultation with MSHA on various issues, many of which are above 
and beyond compliance issues. In this way MSHA is an important partner 
in our success.

                             THE MINER ACT

    We support the MINER Act's spotlight on mine emergency 
preparedness. In fact, because of BHP Billiton's focused risk 
assessment approach to safety, we were already carrying out a good deal 
of what the MINER Act now requires. Prior to the MINER Act, we had 
constructed three escape shelters in our underground workings. Their 
purpose is to facilitate the coordinated evacuation of miners or to 
sustain them if they become trapped underground. The shelters are 
supplied with fresh air from the surface by a bore hole, ventilated at 
a minimum rate of 90 CFM; and they are equipped with food, water, first 
aid supplies, and a separate communication system to the surface 
through the bore hole. Photos of these escape shelters are attached as 
Attachments 4, 5 and 6 to my statement. As for self contained self 
rescuers (``SCSRs''), prior to the MINER Act we had 475 1-hour devices 
in our system to cover a typical work shift having approximately 50 
miners underground. We have been actively involved with MSHA and NIOSH 
in the approval of the use of Self Contained Breathing Apparatus 
``SCBA'' as an alternative to existing approved escape breathing 
devices, to be delivered mid-2007. San Juan has also used the Personal 
Emergency Device, (PED) and three other communication systems 
underground for several years. Our approach to the use of escape 
shelters, communications systems and SCSRs provided us with a running 
start to compliance with the MINER Act requirements for a written 
accident response plan or emergency response plan (``ERP''), as we 
discuss below.

  BHP BILLITON SAN JUAN'S WRITTEN ACCIDENT RESPONSE PLAN OR EMERGENCY 
                        RESPONSE PLAN (``ERP'')

    To begin, the MINER Act requires that approved ERPs shall----

     Afford miners a level of safety protection at least 
consistent with existing law;
     Reflect the most recent credible scientific research;
     Be technologically feasible;
     Make use of current commercially available technology; and
     Account for the specific physical characteristics of the 
particular mine.

    This last criterion especially is an endorsement of the mine 
specific risk assessment used by BHP Billiton.
    We are proud to report to you that as of April 16, 2007, our San 
Juan Mine has an MSHA-approved ERP. We understand that this was the 
first approved ERP in the Nation. The ERP approval process took about 8 
months from start to finish. As the subcommittee knows, approved ERPs 
must be reviewed by MSHA at least every 6 months, and no later than 
mid-2009 every ERP must provide for post-accident communications 
between underground and surface personnel via a wireless two-way 
medium, as well as provide for an electronic tracking system permitting 
surface personnel to determine the location of any persons trapped 
underground. These are daunting tasks given present technology.
    For now, however, our approved ERP includes: a redundant means of 
communication with the surface for persons underground; a tracking 
system that allows us to know the current or the immediately pre-
accident location of all underground personnel; sufficient caches of 
SCSRs for the evacuation and escape of our underground workforce; 
emergency supplies of breathable air for individuals trapped 
underground sufficient to maintain them for a sustained period of time; 
post-accident lifelines; and the other required components of ERPs.
    With particular regard to post-accident breathable air for trapped 
miners, we have constructed two more permanent escape shelters; and we 
are in the process of purchasing four pre-fabricated portable refuge 
chambers (one of the six varieties of chambers approved by the State of 
West Virginia). We appreciate the opportunity to be involved in the 
development of the NIOSH refuge chamber study.

         MINER ACT STRENGTHENING OF MINING RESEARCH ACTIVITIES

    As noted at the beginning of this statement, we are very pleased 
that the MINER Act has strengthened the Nation's mining research 
capabilities through creation and funding of a permanent Office of Mine 
Safety and Health within NIOSH. Madame Chair, and members of the 
subcommittee, in the long-term, this will be one of the most important 
life-saving accomplishments of the MINER Act. Recent events highlight 
the need for increased and sustained funding to support basic research, 
and development of technology that the industry needs to continue to 
improve the safety of our industry. The MINER Act is a start in the 
revival of this key component of what is now recognized to be a 
strategically important and economically critical industry for our 
country's safety, security, and well-being.
    Early this month, a BHP Billiton representative was present at the 
meeting of the statutorily established Mine Safety and Health Research 
Advisory Committee (MSHRAC) in Pittsburgh, Pennsylvania. That Advisory 
Committee is charged pursuant to Section 102 of the Federal Mine Safety 
and Health Act of 1977, with advising both MSHA and NIOSH on matters 
involving mine safety and health research. We were pleased that MSHRAC 
heard and discussed excellent presentations from NIOSH about its MINER 
Act research activities dealing with communications and tracking, 
refuge chambers, mine seals, behavioral research on escape, development 
of improved SCSRs, and other important projects. In short, progress is 
being made in mine safety research as a result of the MINER Act.

          SEALING OF ABANDONED AREAS IN UNDERGROUND COAL MINES

    The MINER Act Section 10 requires MSHA to raise the required 
strength level of materials sealing off abandoned areas in underground 
coal mines.
    We understand that MSHA will be publishing shortly an ``emergency 
temporary standard,'' on mine seals. We support this process, but have 
filed a mine specific Petition for modification to the Agency's current 
standards for the construction of alternative mine seals in accordance 
with our risk-based approach.
    We filed this Petition because we strongly believe that the 
application of the current standard presents a diminution of safety for 
our miners. A number of 2006 safety incidents were a direct result of 
materials handling. In lieu thereof, we have offered an alternative 
method that will at all times provide an equal or higher degree of 
safety as that provided by the existing standard. This alternative is 
an upgraded seal design and construction procedure for MSHA's 
consideration, which includes a procedure for monitoring and sampling 
of the atmospheres behind our seals. This procedure includes an action 
plan which, when necessary would require evacuation of the mine. We 
sincerely hope that publication of the emergency temporary standard 
will result in MSHA approval of our proposed system of construction and 
monitoring of our seals.

                               CONCLUSION

    In closing, we very much appreciate having been invited to 
participate in this hearing. An overriding commitment to the safety of 
our employees and contractors is fundamental to BHP Billiton's strategy 
and our own personal dedication to safety. Our initiatives towards Zero 
Harm are built upon our risk management approach, Fatal Risk Control 
Protocols, our adoption of best practices world-wide, and our use of 
behavioral-based safety, all focused to our site-specific 
circumstances.
    We support the spirit and goals of the MINER Act and the potential 
benefits that will be realized from increased funding into mining 
research and development.
    Thank you again for your interest in our miners' safety. BHP 
Billiton stands ready and willing to advise and assist you in this 
critically important issue and we look forward to you visiting us in 
New Mexico. 













    Senator Murray. Thank you, Dr. Bessinger.
    Mr. Watzman.

 STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY, HEALTH & 
 HUMAN RESOURCES, NATIONAL MINING ASSOCIATION, WASHINGTON, DC.

    Mr. Watzman. Thank you Madame Chair, Senator Isakson, and 
Senator Rockefeller.
    And especially, thank you Senator Rockefeller, for your 
continued interest in this issue, your continued interest in 
the use of coal as an energy source for our country, and the 
health of the industry.
    We appreciate the opportunity to appear before you to talk 
about the industry's actions to implement the MINER Act, the 
challenges we face, our views on enhancing mine safety research 
and the role of technology, and the findings of the independent 
Mine Safety Technology and Training Commission, and what we're 
doing to implement those.
    Since passage of the MINER Act, which NMA aggressively 
supported, we've been moving aggressively to meet the mandates 
of the act. Senator Isakson touched upon many of the 
accomplishments. There's a chart that's appended to my 
testimony that further delineates those, but let me touch upon 
one or two.
    With the recent approval of expectation training units, we 
are now going to be training each miner annually on units that 
imitate the breathing resistance and heat that they will 
experience when and if they have to don an SCSR. This is a tool 
that has never been available in the past and will be valuable 
to the miners.
    We've installed lifelines in both the primary and secondary 
escape ways and emergency tethers are provided in the event 
that miners have to link to one another in the event of an 
emergency escape. And all miners have submitted plans now to 
provide 96 hours of post-accident breathable air to sustain 
miners that are unable to escape and await rescue. And I would 
note, that the vast majority of these are meeting the 
requirement, by using refuge chambers that may or may not 
ultimately be approved by MSHA, and that's a problem for the 
industry today.
    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. These numbers 
simply reflect one quantifiable measurement of the industry's 
commitment to the MINER Act and there's more to be done. We've 
undertaken several voluntary initiatives outside the MINER Act. 
We established with MSHA and NIOSH a review committee to review 
existing mine rescue procedures. And this resulted in the 
development of a generic mine rescue handbook that has been 
shared throughout the industry for those that are forming new 
mine rescue teams and developing mine rescue protocols. 
Additionally, we're working with industry communications 
specialists to develop protocols for communications with the 
media and families in the event of an emergency.
    But we do face impediments to continue the improvement. Dr. 
Kohler talked about the mine emergency communication 
partnership that has been formed. We participate in that. It 
has been very valuable. The purpose of the partnership is to 
evaluate technologies for use in underground mines. What we 
have found, is that what may work in one application will not 
necessarily work in another, so we have hurdles to overcome.
    Similarly, we're working with NIOSH in the development of 
the new SCSR and we have been an active participant in the 
development of the Personal Dust Monitor, something that we 
support.
    Another impediment or challenge that we face is the often 
conflicting regulatory requirements imposed by MSHA and State 
governments that I alluded to earlier. We don't have the luxury 
of time to develop one technology that complies with MSHA 
requirements, another for one State, and possibly another for a 
third or fourth State.
    Dr. Bessinger talked about the small marketplace that we 
provide to manufacturers. That is a very real problem for us. 
Many manufacturers opt not to bring their products to the 
mining marketplace, and this is the importance of NIOSH today. 
They fill that void in the development of technology and, in 
our view, at no time in recent history has the expertise 
residing in NIOSH been more vital to improving mine safety.
    While NIOSH continues to develop and implement advances in 
mine safety, progress has been slowed due to the erosion of 
research funds. We thank you for your support of this critical 
government function and urge you to, again, ensure that funding 
that is commensurate with the role intended by Congress under 
the MINER Act.
    Finally, the path to future improvement--as you know, in 
January 2006, NMA appointed an independent commission to 
immediately undertake a study of new technologies, procedures, 
and training techniques that can further enhance safety in 
underground coal mines. The Commission unanimously adopted 75 
recommendations that are both near-term and far-term in nature.
    Many of the recommendations endorsed actions taken by 
Congress in implementing the MINER Act and many are being 
implemented now by the industry. The central theme of the 
Commission's recommendations is a call for a new approach that 
focuses on a systematic and comprehensive risk assessment-based 
model toward prevention. This won't be easy, but we're 
committed to the task and we're working with NIOSH to develop 
tools and templates to disseminate throughout the industry, so 
that everyone can bring this into their safety program. It is 
time that we renew our efforts on prevention, and risk 
assessment is an integral part of that.
    Madame Chair, we look forward to working with you and 
members of this committee and members not in this committee who 
have a keen interest in mine safety, as we continue our 
collective efforts towards improvement. Thank you and I'd be 
happy to answer any questions you have.
    [The prepared statement of Mr. Watzman follows:]

                  Prepared Statement of Bruce Watzman

    Good morning. My name is Bruce Watzman, and I am the vice president 
of safety, health and human resources for the National Mining 
Association (NMA).
    NMA and its member companies appreciate the opportunity to discuss 
with the subcommittee the industry's actions to implement the Mine 
Improvement and New Emergency Response Act of 2006, which NMA 
supported; what remains to be accomplished; the impediments that we 
face; our views on enhancing mine safety research capabilities and the 
role of technology to advance miner safety and health; and the findings 
of the independent Mine Safety Technology and Training Commission and 
what the industry is doing to implement its recommendations.

                               MINER ACT

    NMA worked toward the passage of the MINER Act. We continue to 
believe that its core requirements are sound. The requirements, as 
implemented through Emergency Response Plans, recognize the need for a 
forward-looking risk assessment, that good safety practices continually 
evolve based upon experience and technological development, and that 
every underground coal mine presents a unique environment and what may 
work in one may not be effective or desirable in another. As the act's 
legislative history succinctly states: ``The goals of optimizing safety 
and survivability must be unchanging, but the manner for doing so must 
be practical and sensible.''--S. Rep. No. 109-365 p. 3.
    We believe that this passage not only aptly captures the intent of 
the law, but also serves as a useful reminder to the industry and 
regulators that there is often more than one way to achieve our 
singular purpose to improve workplace safety.
    Since passage of the MINER Act the industry has moved aggressively 
to identify technology that will enable us to meet the mandates of the 
act in as short a timeframe as possible. While more work needs to be 
done to fully comply with the act's mandates, the industry has, as 
reflected below and in the chart that accompanies this statement, made 
significant progress. To date:

     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 escapeways 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 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.
    These numbers simply reflect one quantifiable measurement of the 
industry's commitment to the MINER Act. And it is only the beginning. 
Just as the MINER Act itself is not the end, but rather one means for 
reaching our desired goal to protect our Nation's miners.
    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.
    The purpose of the partnership is to evaluate current practices and 
technologies, design performance criteria and protocols for testing, 
and identify mines where the technologies can be tested. Our members 
have volunteered their mines for testing tracking and communications 
systems. Some of these technologies hold great promise; however, they 
are, in our estimation, some years away from readiness for mine 
application.
    Communications and safety experts agree that underground coal mines 
present unique challenges to radio and wire signal propagation. What 
works in one mine may not perform in another. As we seek to find and 
deploy the best systems, we will continue in the meantime to improve 
conventional systems to provide more reliable means for tracking and 
communicating with miners underground.
    Beyond the actions taken by the industry to comply with Federal and 
State rules we have undertaken several voluntary initiatives that we 
would like to bring to your attention.
    The industry along with MSHA and NIOSH initiated a review of 
existing mine rescue procedures to determine if existing practices and 
protocols remain operative given the structural changes that have 
occurred across the industry. This effort resulted in the development 
of a generic mine rescue handbook that can serve as a guide for those 
forming mine rescue teams and developing mine rescue protocols, as well 
as a review tool for those with established procedures in place. This 
document has been distributed throughout the mining industry to be used 
as a pre-event planning template that will expedite the delivery of 
mine rescue services in an efficient manner, should they be required. 
It is also readily available to the industry and public on NMA's Web 
site at www.nma.org.
    Working with the industry's communication specialists, NMA is 
developing a protocol for communications with the media during a mining 
crisis. The protocol recognizes the important role of the media in 
keeping communities informed about the facts surrounding a mining 
accident or fatality and the obligation of mine operators to contribute 
to that understanding. The protocol will provide a framework for 
effective communications and cooperation with MSHA, as envisioned by 
the MINER Act.
    Another challenge we face is the often conflicting regulatory 
requirements imposed by MSHA and State governments. We do not have the 
luxury of time to develop one system that complies with MSHA 
requirements, another for one State and possibly a third or fourth for 
additional States.
    Unfortunately, the underground mining marketplace is not attractive 
to many technology providers. In the interest of miner safety, it is 
imperative that we embrace policies that encourage the broadest 
possible application of technology across all underground coal regions.

                          MINE SAFETY RESEARCH

    At no time in our recent history has the expertise residing at 
NIOSH's mining program been more vital to improving mine safety. The 
elimination of the Bureau of Mines in 1995 was a blow to the 
longstanding and renowned government leadership in mine safety and 
health research. The permanent establishment through the MINER Act of 
NIOSH's Office of Mine Safety and Health will begin to restore this 
important function to its former prominence. However, without adequate 
resources, the Office of Mine Safety and Health's leadership in this 
area will suffer, and the MINER Act's expectation for the acceleration 
in the pace of research and progress will be frustrated.
    While NIOSH continues to develop and implement important 
advancements in mine safety and health, progress has slowed due to the 
erosion of research funds, and the situation is becoming critical. 
Because NIOSH's budget for mine safety and health has remained 
relatively flat in recent years, its purchasing power continues to 
decline with the increasing cost of labor, materials and other research 
costs.
    As we consider how to advance the development and introduction of 
new technology, we urge you to again strengthen this vital government 
function and ensure funding for NIOSH is commensurate with the role 
Congress intended under the MINER Act to ``enhance the development of 
new miner safety technology and technological applications and to 
expedite the commercial availability and implementation of such 
technology in mining environments.''

      MINE SAFETY TECHNOLOGY AND TRAINING COMMISSION--THE PATH TO 
                           FUTURE IMPROVEMENT

    In January 2006, NMA established the Mine Safety Technology and 
Training Commission, an independent body, to immediately undertake a 
study of new technologies, procedures and training techniques that can 
further enhance safety in the Nation's underground coal mines. The 
commission drew upon the knowledge and experience of mine safety and 
health professionals from academia, government, industry and the United 
Mine Workers of America to develop a pro-active blueprint for achieving 
zero fatalities and zero serious injuries in U.S. underground coal 
mines. The product of the commission's deliberations is a peer-reviewed 
report that was released in December 2006. The report has been 
recognized outside the industry as a blueprint to achieve the goal of 
zero fatalities and accidents.
    The commission unanimously adopted 75 recommendations that are both 
near-term and far-reaching in scope. Many of the recommendations 
endorse actions taken by Congress in passing the MINER Act. The 
commission's recommendations cover communications technology; emergency 
preparedness; response and rescue procedures; training; and escape and 
protection strategies.
    The central theme of the commission's recommendations is a call for 
a new paradigm for ensuring mine safety--one that focuses on a 
systematic and comprehensive risk assessment-based approach toward 
prevention that serves as the foundation from which all safety efforts 
will flow. This new approach will require us to look at mining 
differently and to train miners differently.
    The industry is currently implementing a number of the commission's 
near-term recommendations and is developing a blueprint for action on 
the more far-reaching items. For example, we are discussing with NIOSH 
the development of risk-based management tools and templates to assist 
the industry in its implementation of the central recommendation of the 
commission. The use of risk-analysis risk-management, while not a 
common practice throughout the industry, is familiar to many of the 
larger companies. Our goal is to create operational tools that will 
help every company identify and address significant hazards before they 
create situations that threaten life or property. While having systems 
and practices in place to aid miners in the event of an emergency is 
important, it is equally, if not, more important that we renew our 
attention on prevention and risk-assessment as an integral part of this 
effort.
    We share the commission's view that adoption ``. . . of a 
comprehensive, risk assessment-based approach toward prevention should 
significantly increase the odds of survival for miners in emergency 
situations, [and] also provide a guideline for pursuing zero accidents 
from all sources.'' We are mindful, however, that this is a significant 
undertaking. As Professor Jim Joy of the University of Queensland, 
Minerals Industry Health and Safety Center, has described the 
Australian mining industry's experience with implementation of a risk-
based approach, as ``immense and fraught with stumbling blocks.'' 
Nonetheless, we are committed to the task.
    Today the industry faces important challenges. More complicated 
geological conditions, advancements in technology and a new generation 
of miners require the introduction of new and innovative techniques. 
Our ability to further advance coal mine safety will require that 
government and industry continue to harness their collective resources 
to identify new technologies and practices that eliminate accidents, 
illnesses and injuries in the workplace.
    We look forward to working with you to ensure that the resources 
required to achieve this goal are available so that every miner can 
return home safely each and every day.
    Thank you. I would be happy to answer any questions.

    Senator Murray. Thank you very much, all three of you, for 
your excellent testimony.
    Mr. O'Dell, let me start with you. A few months ago, we 
heard from Mr. David McAteer, former MSHA Administrator, a 
recognized authority on mine safety, and he testified at a 
Senate Appropriations hearing and said, ``Unfortunately, for 
the average miner underground today, not much has improved from 
the day-to-day safety and health standpoint.'' A few months 
have now passed since that hearing. I would like to ask you, 
what has the average miner seen in changes since we passed the 
MINER Act?
    Mr. O'Dell. They've probably seen the addition of a self-
rescuer, one more than they had before, some mines may see 
additional lifelines. We used lifelines when I worked in the 
coal mine. I happened to work for a progressive company, at the 
time they used lifelines, so miners will see additional 
lifelines in different entries, so they'll see some of those 
changes.
    They will have been trained a little more than what they 
had received before. And that's all well and good, and I think 
it's important that we've made those steps. But the real 
question is, if a disaster were to occur, would we be able to 
get to those miners in a timely fashion?
    Senator Murray. So, what's missing?
    Mr. O'Dell. I don't think, across the board, we have the 
number of mine rescue teams that we need, that is necessary to 
rescue them, if necessary. I don't think we have in place the 
communications, I don't think we've addressed all the seal 
issues yet, that will be protective.
    Senator Murray. What about the emergency response plans--
Dr. Bessinger said they had one, do you know of any other mines 
with their emergency plans in place yet?
    Mr. O'Dell. We heard there are about half of those that 
have been approved, but there's still, the other half that 
haven't been completely approved, so----
    Senator Murray. And the mine rescue teams, that was an 
important part of the MINER Act, as well. Do you know where 
MSHA is on their rulemaking on the mine rescue teams?
    Mr. O'Dell. I can't answer that.
    Senator Murray. Dr. Bessinger, I really appreciate your 
being here today. Your company seems to have taken sort of a 
risk-
adverse approach to protecting workers. Why have you done that?
    Mr. Bessinger. Well, I think our approach is one that is a 
product of our cumulative corporate experience, and BHP 
Billiton, being the largest diversified natural resource 
company has over 100 installations in 25 different countries, 
and we endeavor to apply the best practices of any of those 
installations, where applicable, at any of the other 
installations.
    Risk assessment happens to be one of those techniques. And 
through the application of risk assessment, we've identified 
many of the needs that were only subsequently identified, and 
we've been able to proactively respond to those. You know, 
prior to them being required.
    Senator Murray. You did do them prior to being required--
does that affect your profitability?
    Mr. Bessinger. Well, there's certainly been a cost impact 
associated with compliance, eventhough we did many of the 
initiatives prior to their requirement, we believe that over 
about a 2-year period, it's going to cost us in the 
neighborhood of $9.5 million to comply. Above and beyond what 
we already did.
    Senator Murray. Mr. Watzman, can you talk about the 
reactions from mine operators to the increased spine structure 
that was passed in the MINER Act?
    Mr. Watzman. Beyond MINER Act, MSHA has now finalized 
regulations that dramatically increase the civil penalties that 
can be written.
    There was a fundamental difference in philosophy, in the 
view of the operators, as opposed to those promoting increased 
penalties. There was a belief on the part of some that 
penalties are an inducement to cause one to do the right thing. 
That is something that the industry disagrees with. We believe 
that you run a safe mine, because we have seen, time and time 
again, that a safe mine is a productive mine. Those are not 
competing goals, those are complimentary goals. There was all 
of the inducement necessary today for operators to run safe 
operations, and the vast majority of them do so.
    One of the more interesting statistics is there are 
approximately 14,000 mines across the country--both in coal, 
and metal/non-metal operations. And I think that the number 
MSHA will use--and they can provide it or I can get it for you, 
if you would like--that somewhere in the range of 9,000 or 
10,000 of those mines operated last year without a single lost-
time accident. Those mines understand that they're not 
conflicting goals. If you are going to produce a product in 
this industry, you're going to run the mine safely. And in so 
doing, you're going to reduce your number of citations that are 
issued.
    Senator Murray. Senator Isakson, I'm out of time.
    Senator Isakson. Mr. O'Dell, it's good to see you again, 
thank you for your testimony.
    The recent report issued on the findings of the Sago Mine 
disaster, did the mine workers or yourself have any comment on 
those findings?
    Mr. O'Dell. We believe that, if you look at the overall 
picture, there were a lot of things that failed leading up to 
the disaster. And, I think that's where we, and the agencies, 
agree. We disagree on what caused the explosion, we put that in 
our report, we don't believe lightening was the cause, but if 
it was the cause, then there needs to be things put in place to 
protect miners in the event that ever happened.
    But, the bottom is that we, the State and the Federal 
agencies have all agreed, there were a lot of failures that 
occurred leading up to that, and we need to address those, such 
as the seals, ventilation controls, proper training of miners, 
SCSRs and those things.
    Senator Isakson. Mr. Watzman, your comment on that?
    Mr. Watzman. We did not prepare an independent report. We 
have reviewed the reports of both the company, the State, and 
MSHA, and recognize that there are some conflicting conclusions 
in all of them, but there are areas of agreement.
    Like Mr. O'Dell, many of those have been addressed by the 
MINER Act, and the actions that MSHA is taking, in terms of 
increasing the number of SCSRs that are provided underground, 
increasing the training for miners on how to use and don an 
SCSR, making that quarterly training now, more frequent drills 
on evacuation training, frequency of understanding of escape 
ways, both primary and secondary, so while we didn't prepare 
our report, and if there are conflicts, we are in agreement 
that there are issues that we--labor, and the Government--
support to prevent this in the event that there's another 
occurrence like this.
    Senator Isakson. Dr. Bessinger, I commend you and your 
company on your attention to safety in the interest of your 
miners and your company.
    On the underground chamber that you were referring to, or 
that was referred to in the testimony, I think you showed a 
picture of that.
    Mr. Bessinger. Yes.
    Senator Isakson. Do you have surface access for--do you own 
the land above the chambers, where you can access the surface, 
directly?
    Mr. Bessinger. No, we actually don't own the land, that 
land is BLM land. We have access to that land, we don't 
actually own it.
    Senator Isakson. The reason I ask that is, in West 
Virginia--the Senator from West Virginia can correct me--most 
coal mines run under houses, roads, shopping centers, 
privately-owned land, and are accessible by mineral rights, 
which does not provide the type of access that you get, either 
through ownership or the Bureau of Land Management's 
permission, so every--as we promote that, and I really commend 
you for doing it--I wish everybody had the access to being able 
to drill straight down so that you could have fresh air come 
in, have control over that land.
    Mr. O'Dell, on the Self-Contained Self-Rescuers and the 
docking system I heard the previous witness testify to--it 
sounded to me like that development would have changed the 
survivability time for the Sago miners, am I correct on that?
    Mr. O'Dell. We actually spoke about that with Dr. Kohler at 
our last MSHA meeting of the committee. And, the units that 
they're looking at now very possibly could have helped those 
miners survive. There were some problems with that, that we 
asked them to look into, as far as caking on the bottom, 
because there are chemicals involved, and so after we find out 
if that's going to be a problem or not, we'll see if we can----
    Senator Isakson. Very promising development, though, I 
think.
    Mr. O'Dell. Yes.
    Senator Isakson. I was very excited to hear that, having 
dealt with Senator Rockefeller and Senator Byrd, and the 
tragedy of that one disaster--that, and the ability to 
communicate in that particular accident were the two most 
profound things that need to be addressed, at least the Self-
Contained Self-Rescuers docking device sounds like a real 
breakthrough in terms of that.
    Mr. O'Dell. If I may add, if I could--if you want to find 
out what miners are thinking, do like I do. When this job gets 
to the point that my head gets filled up with too much of the 
bureaucracy and the red tape, I go back to where I used to 
work, and I sit down on the miner, and I mine coal with my 
buddies and put roof bolts in, if I was on the longwall, I cut 
coal with a shear, pull shields in, shovel some coal on the 
belt. And some of the things we talk about are some of the 
things you're asking right now.
    And when we talk about self-rescuers, miners are 
encouraged, but part of the problem is, they see what 
firefighters, and mine rescue team personnel have, when they 
come to a mine site. And they have a full-faced mask that they 
place on, and they're getting full oxygen, they're getting real 
oxygen, rather than having to rely on a chemically-generated 
piece of equipment.
    So they ask, how come we can't get that kind of protection 
as miners? And so we passed that along to the agencies to look 
into that, as well. They can help you speak better because you 
don't have anything in your mouth.
    Senator Isakson. My time is up, thank you, Madame Chairman.
    Senator Murray. Senator Rockefeller.
    Senator Rockefeller. Thank you.
    Dr. Bessinger, you said something which was interesting to 
me, and is conflicting. You put down the phrase ``culture of 
safety'' and that's very easy to say. It has not generally been 
the practice of mining throughout the United States, 
underground mining, in particular. But, nevertheless, you say 
that. If you say that, couldn't you just say that companies are 
following the rules and regulations that exist on the books, 
and therefore you would be practicing the culture of safety, or 
zero harm?
    Mr. Bessinger. Well----
    Senator Rockefeller. I think you would have to agree that 
the legislation which is on the books, didn't need further 
changing.
    Mr. Bessinger. Well, I think--thank you for that question--
I would actually characterize that just a little bit 
differently.
    There has been a culture of compliance, where a company's 
efforts, an operator's efforts are focused at compliance with 
laws and regulations that are on the books. And then there is a 
safety culture, where we all focus on the concept of zero harm. 
Obviously, we always comply with the laws and regulations of 
any jurisdiction in which we operate, but at the same time, we 
go above and beyond that with this safety culture leading to 
zero harm, and that involves the risk assessment and that 
involves site-specific considerations for any given mine, its 
unique concerns to address the safety issues that might appear.
    Senator Rockefeller. That's just confusing to me, I don't 
understand that. The zero harm, again--catchy, good. You're 
happy to present that to us. But, if you compare yourself--I 
don't know which of the two of you were talking about--do you 
have a lot of coal mines overseas?
    Mr. Bessinger. We have 100 operations through BHP 
Billiton----
    Senator Rockefeller. All right, well now, I'm just really 
curious about that, because everything I've seen of coal mines 
being run overseas, maybe not by you, is according to a 
standard which we would have not approved of 50 years ago. Is 
your standard of running over there--coal mines--exactly the 
same as your standard here, assuming that the standard here is 
sufficient? Is there no difference? Are they run exactly the 
same way?
    Mr. Bessinger. There is much overlap, I'm not sure I would 
go so far as to say they're identical in every respect, because 
from geographic location to location, the needs of complying 
with the rules and regulations of any jurisdiction are 
different, and we certainly comply in any jurisdiction where we 
operate----
    Senator Rockefeller. Can I just interrupt? Do you, Mr. 
Watzman, and do you, Dr. Bessinger, believe in climate change, 
and that we're going to have to do something about it in the 
next 10 or 15 years--do you believe in it?
    Mr. Bessinger. I'm not sure that I have an informed opinion 
about that.
    Senator Rockefeller. Well, then let me ask you this--you 
may not--if you haven't, that's interesting, if you're in the 
coal business, you ought to have done quite a lot of reading on 
that. But, let me just pose this question to you--let's 
supposing that you're not sure that the science is right, but 
you're not sure that the science is wrong. Are you willing to 
bet the farm on the fact that the science is wrong? What I'm 
asking you is, in that, virtually all science says that that is 
a problem, and it's a problem that we have to solve very 
quickly, and it's a problem which will make all other problems 
that we're dealing with in this, and other places around the 
world, very marginal in importance, that means that all of a 
sudden there's going to be a tremendous emphasis on energy 
independence, getting away from oil, and mining a whole lot 
more coal--that ought to be good news to you. Very, very good 
news to you, because most of the coal in the East has declined 
in its volume, the coal in the West, because people got there 
before the Industrial Revolution is later--it's still there. 
The quality of the coal is still good, but it doesn't make any 
difference, it can still be made very effective.
    Now, if you're faced with something like that, and you're 
talking about zero harm, I'm confused about how you face the 
future. You, Mr. Watzman, admitted no mistakes. You didn't 
really give any sense at all that coal mines could be doing 
something more than they're doing. And one of the things that--
and correct me if I need to be corrected--but one of the 
things, it seems to me, in dialogues of this sort, which are 
not under oath, but which have the effect of being under oath, 
insofar as we're concerned, that if people who--and this 
applies to the United Mine Workers, too, because the United 
Mine Workers is not always perfect--that you tell us what we 
need to know, not what you want us to hear.
    This is always my worry, about when you're getting told--if 
it's in the Government, you know it's not what they believe, 
because the OMB has to approve every single word of every 
single testimony that they say, so it's kind of a kabuki dance. 
With you, it shouldn't be--here we're talking about life and 
death, we're talking about probable global climate change 
legislation coming out of this Congress over the next number of 
years, which are going to provide you with the greatest benefit 
that you ever had in your life.
    And, what I have to have some confidence in is that you're 
going to be able to deal with that--all of a sudden, a 
tremendous influence on mining coal, which can be done cleanly, 
and as cleanly as atomic energy, in fact, sequestration, other 
carbon dioxide control methods that you can do it safely, that 
you will do it safely, I have to know that.
    Mr. Bessinger. Well, I certainly have no reservation about 
making the commitment that coal can be mined safely, and that 
were there to be future expansion of coal mining in the United 
States that it certainly would be done safely and legally, in 
full recognition of all of the relevant laws.
    Senator Rockefeller. In other words, your point is, if it's 
done under the existing laws, under the existing regulatory 
bodies, that's, in a sense, zero harm?
    Mr. Bessinger. Our version of zero harm is different than 
that, our version of zero harm transcends the simple need for 
compliance, and actually aspires to a higher goal.
    Senator Rockefeller. I know, you said that, and I wasn't 
really quite sure what you meant by that.
    Mr. Bessinger. Well, what it means is that we use our 
safety processes that we've developed elsewhere throughout our 
company to achieve performance that exceeds that that would be 
achieved by compliance acts alone.
    Senator Rockefeller. Well, whatever that means, Madame 
Chairman, I thank you for allowing me to sit----
    Senator Murray. Absolutely.
    Senator Rockefeller [continuing]. At your hearing, and I 
thank the distinguished Senator from Georgia who, is not as 
familiar with coal, but he is a rock-solid doer of good. After 
his visit to West Virginia.
    Senator Murray. Thank you very much, Senator Rockefeller. I 
don't have any additional questions, Senator Isakson, do you?
    Senator Isakson. No. Thank you.
    Senator Murray. With that, then, we will conclude this 
hearing, I want to thank all of our witnesses, and I would like 
to ask unanimous consent for the hearing record to remain open 
for 7 days for any additional materials.
    With that, this committee is adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Senator Enzi

    Good morning. I want to thank Chairman Murray and Ranking 
Member Isakson for holding this important hearing. Of the many 
responsibilities with which this committee is charged, none is 
more important than the responsibility to secure the job safety 
of our Nation's workers, including those that work in the 
mining industry.
    When tragedy struck last year at the Sago Mine in the coal 
fields of West Virginia, this committee acted swiftly, and in a 
bipartisan manner, to understand what went wrong and what 
changes needed to be made in our mine safety laws. Our first 
step was to go to West Virginia, at the invitation of Senator 
Rockefeller, so that we could meet the families of the 12 
miners whose lives were lost, learn about the Sago mine 
operation and talk directly with the MSHA officials who were 
charged with enforcement in that district. On that trip with me 
were Senators Kennedy, Isakson, and Rockefeller, as well as 
Senator Murray's staff. All of us were deeply affected by what 
we saw and heard in West Virginia. We returned to Washington 
with a greater understanding of what was needed to enhance mine 
safety and with a unified sense of commitment to the task at 
hand.
    Tragically, just as we returned to Washington and began 
working on legislation, another accident occurred in West 
Virginia at the Aracoma mine. It claimed two more lives. While 
these twin tragedies were a terrible reminder of what can go 
wrong in an underground coal mine, they also served to help set 
clear priorities for legislation that would better protect 
miners both immediately, and down the road. The product of 
those legislative efforts was the MINER Act--the most 
comprehensive reform of mine safety legislation in over a 
generation. In the MINER Act we mandated that every coal mine 
develop and continuously update emergency response and 
preparedness plans that are designed to make mining accidents 
more survivable. To date, all coal mines have submitted plans, 
and a third of them are fully approved. These plans ensure that 
every mine will be using the best technology available to 
enhance surface to underground communication, to aid in the 
location of underground personnel, and to provide additional 
breathable air for miners that are trapped underground. The 
MINER Act also encourages the development of better technology, 
which is difficult to foster for such a small market. The act 
enhances the mine safety research and development efforts of 
the National Institute of Occupational Safety and Health, 
encourages private sector technology development, and speeds 
the approval of new equipment.
    Because we worked in a bipartisan manner, we were able to 
introduce this legislation and report it out of the HELP 
Committee with unanimous support by mid-May; and to unanimously 
pass the MINER Act in the Senate 1 week later. Two weeks later 
it was approved by the House with an overwhelming margin of 
support, and 1 week after that it was signed into law by the 
President. In the 109th Congress, the MINER Act was 1 of 27 
HELP Committee bills that were signed into law--a truly 
remarkable number. As in all 26 other instances, we were able 
to achieve passage of the MINER Act because we worked together 
without regard to party designation.
    Mining today is a highly specialized and technologically 
complex industry. It is also one of our most heavily regulated 
industries. Congress does not make changes to the Mine Safety 
and Health Act either frequently or lightly and that kind of 
legislative restraint is largely a good idea. Most of us in 
Congress are not engineers or scientists, mining professionals 
or technological geniuses that should be mandating specific, 
one-size-fits-all requirements for enhancing mine safety. We 
most certainly have the responsibility for setting the goals, 
and overseeing the progress, but we must rightly leave the day-
to-day task of securing those goals in the hands of experts. 
Thus, for the most part, Congress properly relies on the Mine 
Safety and Health Administration and the mining experts at the 
National Institute of Safety and Health to regulate the 
industry and adjust those regulations to changes in the 
industry and in technology. Those bodies to which Congress 
delegates such important responsibility must be subject to 
congressional oversight. Congress, for its part, however, must 
be fair and rational in the exercise of that oversight. Since 
the passage of the MINER Act, much has been accomplished in 
making our Nation's mines safer. In this respect, the 
collective efforts of miners and mine operators; and Federal 
and State regulators are to be applauded. These efforts must 
continue, and we should never be reluctant to level 
constructive criticism where it is warranted. However, we 
should not be leveling criticisms that are not grounded in fact 
or logic. For example, MSHA should not be faulted for failing 
to require the use of equipment which has not been developed or 
which is not available in the marketplace; nor, should it be 
faulted for moving too slowly on an issue when it is moving 
within the time guidelines specifically set in the MINER Act. 
This kind of criticism does little to advance the cause of mine 
safety, and suggests that those who level such criticisms are 
more concerned about partisan politics than sound policy.
    Those of us that understand mining also understand that it 
presents unique safety challenges. The problems are complex, 
the solutions varied, and the risk of unintended consequence 
substantial. In the MINER Act, we placed an emphasis on 
developing practical and individual approaches that will better 
protect miners immediately. We also mandated standards that 
will be able to evolve with technology, and to encourage the 
development of better miner-protecting technologies so that 
this industry will not be allowed to fall behind progress. Such 
approaches should continue through the regulatory process, and 
we need to foster and encourage that result.
    Thank you.

                          U.S. Department of Labor,
             Mine Safety and Health Administration,
                            Arlington, Virginia 22209-3939,
                                                       May 8, 2007.
Hon. Robert C. Byrd,
Chairman,
Committee on Appropriations,
U.S. Senate,
Washington, DC. 20510-6025.
    Dear Chairman Byrd: This is in response to your recent letter 
regarding the implementation of the Mine Improvement and New Emergency 
Response Act (MINER Act). I apologize for the delay in sending this 
response; however, we wanted to provide the most up-to-date information 
possible regarding our progress in implementing the MINER Act. Please 
see the enclosed chart of our progress to date. I assure you that 
significant progress has been made by the Mine Safety and Health 
Administration (MSHA) and that the agency is working diligently to 
fully implement the MINER Act.
    I offer the following in response to the five concerns raised in 
your letter.

     MSHA has not fully approved any Emergency Response Plans

    The MINER Act requires underground coal mine operators to develop 
and adopt written Emergency Response Plans (ERPs) specific to the mines 
they operate. In accordance with the MINER Act, MSHA required operators 
to submit plans by August 14, 2006. MSHA provided operators with 
guidance related to the requirements for breathable air on February 8, 
2007. This meant that ERPs could only be partially approved. Revised 
ERPs, indicating how breathable air will be provided were required by 
March 12, 2007. To date, 160 ERPs have been fully approved and plan 
provisions are in effect. MSHA inspectors are checking for compliance 
during inspections.
    For an ERP to be fully approved by MSHA's District Manager, the 
operator's plan needs to provide MSHA adequate assurance of a miner's 
ability to evacuate or survive an emergency. If the District Manager 
determines that an operator has failed to meet the obligation to comply 
with these requirements, the plan will not be approved by MSHA.
    MSHA has found deficiencies in some operators' ERPs in the areas of 
breathable air, redundant communication, post accident tracking, SCSR 
storage, training, and/or local coordination. MSHA is promptly 
requiring improvements to these plans. Should operators fail to submit 
improved ERPs, MSHA will take enforcement action. Specifically, 
operators will be issued a citation and the dispute concerning that 
section of the ERP will be subject to the Federal Mine Safety and 
Health Review Commission's (FMSHRC) formal dispute resolution process 
as stipulated in Section 2 of the MINER Act.

     MSHA has not approved any wireless communications and 
tracking technology for use underground

    New technologies for wireless communication and tracking are being 
developed by industry with assistance from the National Institute for 
Occupational Safety and Health (NIOSH), however no truly wireless 
systems have been submitted to MSHA for approval. It is important to 
note that, since the accidents of 2006, there has been more rapid 
development of this technology. MSHA has communicated with interested 
parties regarding 137 proposals for new communication and tracking 
technologies. We have met with 49 of these parties, and conducted field 
demonstrations of 19 systems.
    Between January 2006 and April 27, 2007, MSHA received 51 
applications for approval of communication and tracking systems. 
Thirty-four applications are currently being reviewed, and 17 have 
already been approved. Three approvals are new approvals, and 14 are 
modifications to previously approved pager phones and leaky feeder 
systems.
    Based on the number of ongoing efforts with many interested 
vendors, cooperative efforts with NIOSH and the grants issued by NIOSH 
for the development of this technology, we expect to see a significant 
increase in the number of new communication and tracking approval 
requests in the months ahead.

     Miners still do not have adequate oxygen supplies 
underground

    With implementation of the Emergency Temporary Standard for 
Emergency Mine Evacuation and the Final Emergency Mine Evacuation rule, 
the demand for SCSRs has exceeded the supply. The majority of the 
devices preferred by mine operators are made by two of three 
manufacturers. While there is a quantity of available SCSRs made by the 
third manufacturer, MSHA agrees with the United Mine Workers of America 
that mixing the types of devices in use at a mine does not promote 
safety. Due to the backlog, MSHA has accepted purchase orders with a 
delivery date from operators as a good faith effort to comply with the 
MINER Act. MSHA has asked the SCSR manufacturers to give priority 
consideration to operators who do not have two SCSRs for every miner 
when filling orders. The manufacturers have pledged to do so.

     Only 145 mine rescue teams are available to serve 481 
active underground coal mines

    Additional mine rescue teams have been formed. MSHA continues to be 
proactive in terms of offering new teams training and training 
materials, but ultimately it is the responsibility of operators to 
create new teams. Currently, there are 153 mine rescue teams available 
for response to 474 underground coal mines, and we anticipate that 
other new teams will be formed as well. These teams are qualified, 
well-equipped, and available for underground mine rescue, should the 
need arise.
    MSHA is currently drafting a rule to revise MSHA's existing 
standards for mine rescue teams for underground coal mines. The mine 
rescue team rule will strengthen training requirements and address 
composition, availability, and certification requirements for coal mine 
rescue teams. The proposed rule will be available later this spring for 
public comment. The final rule is scheduled to be issued no later than 
December 15, 2007, and we expect to meet that deadline.

     MSHA still does not ensure that underground mines have 
flame-resistant lifelines in escape ways

    The Emergency Temporary Standard for Emergency Mine Evacuation and 
the Final Emergency Mine Evacuation rule increased the demand for 
flame-resistant lifelines. Flame-resistant lifelines are required upon 
replacement of existing lifelines, no later than June 15, 2009. As the 
result of the initial demand on lifeline manufacturers and resultant 
backlog, MSHA accepted purchase orders for flame-
resistant lifelines, as a good faith effort to comply with the MINER 
Act. Manufacturers have caught up on orders of lifelines and are now 
supplying the industry with lifelines to keep pace with mines as they 
advance underground. As a result, 97 percent of the Nation's active 
underground coal mines have flame-resistant lifelines installed.
    MSHA's staff continues to work diligently toward fulfilling the 
agency's statutory responsibilities as quickly as possible. We will be 
pleased to provide regular updates regarding MINER Act implementation.
    Thank you for your commitment to improving the health and safety of 
our Nation's miners.
            Sincerely,
                                       Richard E. Stickler,
                    Assistant Secretary for Mine Safety and Health.

               MINER Act: Implementation Dates and Status
------------------------------------------------------------------------
            Description of Task                       Status**
------------------------------------------------------------------------
                       SEC. 2. EMERGENCY RESPONSE
------------------------------------------------------------------------
Develop and adopt an Emergency Response     MSHA issued Program Policy
 Plan (ERP) that contains provisions for     Letters P06-V-8 on 07/21/
 post-accident communications and            06; P06-V-9 on 08/04/06;
 tracking; post-accident breathable air;     P06-V-10 on 10/24/06
 lifelines; training; and local              implementing the Emergency
 coordination.                               Response Plan (ERP)
                                             provisions in section 2 of
                                             the MINER Act.
Update plans periodically.................  MSHA issued breathable air
                                             guidance on 2/8/07 in
                                             Program Information
                                             Bulletin No. P07-03.
                                            ERPs submitted to MSHA by 08/
                                             14/06.
                                            MSHA has partially approved
                                             90 percent of ERPs. Once
                                             the breathable air
                                             provisions are fully
                                             implemented, ERPs can be
                                             fully approved.
------------------------------------------------------------------------
Post-accident communications and tracking.  MSHA issued a Request for
                                             Information on 01/25/06
                                             soliciting proposals for
                                             new communication and
                                             tracking technology. MSHA
                                             is sharing results of
                                             evaluation and testing with
                                             NIOSH. MSHA is evaluating
                                             submitted proposals,
                                             assisting in arranging
                                             demonstrations, observing
                                             testing at various mine
                                             sites, meeting with
                                             communication and tracking
                                             system company
                                             representatives, and
                                             communicating with parties
                                             interested in developing a
                                             mine communication and/or
                                             tracking system.
                                            Between January 2006 and
                                             April 27, 2007, MSHA
                                             received 51 applications
                                             for approval of
                                             communication and tracking
                                             systems. Thirty-four
                                             applications are currently
                                             being reviewed, and 17 have
                                             already been approved.
                                             Three approvals are new
                                             approvals, and 14 are
                                             modifications to previously
                                             approved pager phones and
                                             leaky feeders systems.
                                            MSHA issued PIB P07-01 on 01/
                                             18/07 addressing the use of
                                             Global Positioning Systems
                                             during storms.
------------------------------------------------------------------------
Post-accident breathable air for            MSHA published an RFI on 8/
 maintenance of individuals trapped          30/06; comments received 10/
 underground.                                10/06.
                                            MSHA issued PIB P07-03 and
                                             associated compliance
                                             materials containing
                                             options for providing post-
                                             accident breathable air to
                                             underground coal miners on
                                             02/08/07.
                                            Mine operators were required
                                             to submit a portion of the
                                             ERP addressing breathable
                                             air by 3/12/07; as of May
                                             8, 2007, MSHA has fully
                                             approved 160 ERPs including
                                             breathable air provisions.
                                             The National Mining
                                             Association has challenged
                                             breathable air guidance in
                                             DC Circuit Court.
                                            Mine operators must
                                             implement breathable air
                                             provisions 60 days after
                                             MSHA approval of ERP.
------------------------------------------------------------------------
Post-accident, flame resistant,             Required in emergency mine
 directional lifelines.                      evacuation final rule
                                             published 12/08/06. The
                                             final rule requires that
                                             lifelines be made of flame-
                                             resistant material upon
                                             replacement, and that all
                                             lifelines be flame-
                                             resistant no later than
                                             June 15, 2009.
------------------------------------------------------------------------
Training program for emergency procedures.  Required in emergency mine
                                             evacuation final rule
                                             published 12/08/06.
------------------------------------------------------------------------
Local coordination and communication        Required in Emergency
 between the operators, mine rescue teams,   Response Plan.
 and local emergency response personnel.
------------------------------------------------------------------------
Emergency Response Plan approval and        Required to be submitted to
 review.                                     MSHA by 8/14/06 and every 6
                                             months thereafter.
------------------------------------------------------------------------
                        SEC. 4. MINE RESCUE TEAMS
------------------------------------------------------------------------
Provides certification, composition, and    MSHA drafting proposed rule.
 training requirements for underground       Final rule due 12/14/07.
 coal mine rescue teams.
------------------------------------------------------------------------
                  SEC. 5. PROMPT INCIDENT NOTIFICATION
------------------------------------------------------------------------
Requires operator to notify MSHA within 15  Included in Emergency Mine
 minutes of a death or an injury or          Evacuation (published on 12/
 entrapment, which has a reasonable          08/06). Civil Penalties
 potential to cause death.                   final rule published on 3/
                                             22/07; final effective 4/23/
                                             07.
                                            MINER Act penalties are
                                             currently being assessed.
------------------------------------------------------------------------
             SEC. 7. REQUIREMENT CONCERNING FAMILY LIAISONS
------------------------------------------------------------------------
MSHA to be liaison and primary              Assistant Secretary for MSHA
 communicator with families of victims and   was assigned responsibility
 primary communicator with mine operators,   for developing Family
 the press, and the public.                  Liaison Program on 11/02/
                                             06.
                                            MSHA issued PPL P06-V-11 on
                                             family liaison and primary
                                             communicator on 12/22/06
                                             implementing section 7 of
                                             the MINER Act.
                                            MSHA is developing policy to
                                             be implemented as a part of
                                             accident investigation
                                             handbook.
                                            Training completed for 14
                                             designated MSHA personnel.
------------------------------------------------------------------------
                            SEC. 8. PENALTIES
------------------------------------------------------------------------
Revise existing rule to increase minimum    MSHA issued PIL 106-111-02
 penalties for unwarrantable failure         implementing new minimum
 citations and orders; and ``flagrant''      civil penalties on 08/29/
 violations.                                 06; and 106-111-04
                                             establishing procedures for
                                             evaluating ``flagrant''
                                             violations on 10/26/06.
                                            Proposed rule published on
                                             09/08/06; Public hearings
                                             held during September and
                                             October 2006.
                                            Final rule published on 03/
                                             22/07; final rule effective
                                             04/23/07.
------------------------------------------------------------------------
                   SEC. 10. SEALING OF ABANDONED AREAS
------------------------------------------------------------------------
Requires increase of 20 psi standard for    MSHA issued PIBs
 sealing of abandoned areas in underground   establishing a temporary
 coal mines.                                 moratorium on new seal
                                             construction until the
                                             agency issued subsequent
                                             guidance for addressing
                                             alternative seals: PIB-06-
                                             11 issued 06/01/06; PIB-06-
                                             12 issued 06/12/06; PIB-06-
                                             14 issued 06/21/06; PIB-06-
                                             16 issued 07/19/06. Seal
                                             strength for alternative
                                             seals was increased to 50
                                             psi under this PIB. Final
                                             rule due 12/14/07.
                                            MSHA issued PIL 106-V-09 on
                                             08/21/06 establishing
                                             procedures for agency
                                             approval of ventilation
                                             plans that include
                                             alternative seals. MSHA has
                                             approved one plan that
                                             included alternative seals
                                             and has approved a number
                                             of others provisionally.
                                            MSHA will continue to work
                                             with NIOSH on research and
                                             testing of seals,
                                             particularly full-scale
                                             testing of seals at higher
                                             explosion pressures.
                                            NIOSH draft report issued 02/
                                             09/07. MSHA does not know
                                             when final report is due.
------------------------------------------------------------------------
                     SEC. 11. TECHNICAL STUDY PANEL
------------------------------------------------------------------------
Establish Belt Air Technical Study Panel    Belt Air Technical Study
 to provide review and recommendations on    Panel established 12/20/06.
 the use of belt air and the composition    1st meeting held on January
 and fire retardant properties of belt       9-10, 2007.
 materials in underground coal mining.      2nd meeting held on March 28-
                                             30, 2007.
                                            3rd meeting scheduled for
                                             May 16-18, 2007.
                                            Procedures and timetable
                                             established. Relevant
                                             documents posted on MSHA's
                                             Web site.
------------------------------------------------------------------------
Submit a report to the Secretaries of       Panel report due 12/20/07.
 Labor and HHS and to the Congress.
------------------------------------------------------------------------
Provide a response to Congress describing   Secretary's response due 6/
 the actions that the Secretary intends to   20/08.
 take base on the report and the reasons
 for such actions.
------------------------------------------------------------------------
            SEC. 13. RESEARCH CONCERNING REFUGE ALTERNATIVES
------------------------------------------------------------------------
Conduct research, including field tests,    MSHA will share with NIOSH
 on the utility, practicality,               data collected as a result
 survivability, and cost of refuge           of MSHA's RFI, published 01/
 alternatives in an underground coal mine    25/06, and other MSHA/NIOSH
 environment.                                public meetings, including
                                             03/13/06 meeting on mine
                                             rescue communication and
                                             tracking technology and 4/
                                             18/06 meeting on Mine
                                             Escape Planning and
                                             Emergency Shelters.
------------------------------------------------------------------------
Issue report to Congress concerning its     NIOSH report due 12/15/07.
 research results.
------------------------------------------------------------------------
Provide response to Congress describing     MSHA response due 6/15/07.
 the actions that the Secretary intends to
 take based on the report, including
 proposing regulatory changes.
------------------------------------------------------------------------
                     EMERGENCY MINE EVACUATION RULE
------------------------------------------------------------------------
MSHA issued final rule, effective           On 03/30/07, MSHA issued
 immediately, on 12/08/06 finalizing         notice on SCSR training
 emergency temporary standard providing      units which now must be
 improved protections for emergency mine     used. National Mining
 evacuation.                                 Association has challenged
                                             the final rule in the DC
                                             Circuit. SCSR training
                                             units must be purchased by
                                             April 30, 2007; operators
                                             must provide this training
                                             by June 30, 2007.
------------------------------------------------------------------------
** PIB = Program Information Bulletin.
PIL = Procedure Instruction Letter.
PPL = Program Policy Letter.
RFI = Request for Information.

                  MSHA Actions to Enhance Mine Safety
    Mine Improvement and New Emergency Response (MINER) Act: On June 
15, 2006, the President signed the MINER Act into law. MSHA's actions 
to implement the act include:

     An Emergency Temporary Standard on Mine Seals: On May 22, 
2007, MSHA published in the Federal Register an ETS to increase 
protection for miners who work in underground mines with sealed off 
abandoned areas. Although Section 10 of the MINER Act gives MSHA until 
December 2007 to issue a new standard on mine seals, MSHA has concluded 
that, based on its accident investigations of the Sago and Darby mine 
explosions, MSHA's in-mine seal evaluations, and recent reports on 
explosion testing and modeling, immediate action is necessary to 
protect miners. This ETS goes beyond the MINER Act--which requires that 
the standard on mine seals be greater than the 20 psi established in 
1992--to include requirements to strengthen the design, construction, 
maintenance and repair of seals, as well as requirements for sampling 
and controlling atmospheres behind seals.
     A Final Rule on Civil Penalties: After passage of the 
MINER Act, MSHA immediately implemented increased penalties for late 
accident notification and unwarrantable failure violations. On March 
22, 2007, MSHA published a final rule to increase civil penalty amounts 
for mine safety violations. Issuance of this rule goes beyond the 
requirements of the MINER Act and demonstrates the commitment of MSHA 
to protect the safety and health of our Nation's miners. MSHA has 
already issued 13 citations for flagrant violations, including three of 
the largest proposed penalties in the history of the agency.

    As prescribed by the act, the final rule:

          Establishes a maximum penalty of $220,000 for 
        ``flagrant'' violations, as proposed in the President's 
        previous budgets.
          Sets minimum penalty amounts of $2,000 and $4,000 for 
        ``unwarrantable failure citations and orders.
          Imposes a minimum penalty of $5,000 (up to a maximum 
        of $60,000) for failure to timely notify MSHA of a death or an 
        injury or entrapment with a reasonable potential to cause 
        death.

    Other major provisions of the final rule applicable to all mines 
and contractors:

          Increases civil penalties overall by an estimated 179 
        percent using 2005 violation data--targeting the most serious 
        safety and health violations with escalating penalties.
          Adds a new provision to increase penalties--
        notwithstanding the severity--for operators who repeatedly 
        violate MSHA standards.
          Replaces the $60 single penalty with higher formula 
        assessments for nonsignificant and substantial (non-S&S) 
        violations.

     Approval of Emergency Response Plans: MSHA is reviewing 
and approving Emergency Response Plans mine operators are required to 
implement under the Act. Plans must address post-accident 
communications, tracking, and increased air supplies for trapped 
miners.
     Mandated Post-Accident Breathable Air: On February 8, 
2007, MSHA issued a Program Information Bulletin (PIB) providing mine 
operators guidance concerning acceptable ways to fulfill the breathable 
air requirements in the MINER Act. Options for providing acceptable 
quantities of breathable air for trapped miners are:

    (1) Drilling boreholes within 2,000 feet of the working sections of 
mines;
    (2) Having 48 hours of breathable air located within 2,000 feet of 
working sections coupled with contingency plans for drilling boreholes 
if miners are not rescued within 48 hours;
    (3) Having 96 hours of breathable air within 2,000 feet of working 
sections; or
    (4) Other options that provide equivalent protection.

     Established Family Liaisons: On November 2, 2006, the 
Secretary of Labor signed an Order establishing the Family Liaison and 
Primary Communicator positions. MSHA has trained 14 family liaisons. 
The National Transportation Safety Board and the American Red Cross 
have helped train these individuals.
     Belt Air: The Belt Air and Conveyor Belt Materials 
Technical Study Panel required under the act has held three meetings: 
The first was held January 9-10, 2007 in Washington, D.C.; the second 
March 28-30 in Pittsburgh, PA; and the most recent one May 16-17 in 
Salt Lake City, UT. A fourth is scheduled for June 20-22 in Birmingham, 
AL. As required by the MINER Act, the Panel will publish its report by 
December 20, 2007.
     Refuge Alternatives: MSHA is working with NIOSH and the 
States to explore refuge alternatives for trapped miners. By the end of 
this year, NIOSH is scheduled to report the results of the research to 
the Department of Labor. By mid-2008, in accordance with the MINER Act, 
the Department of Labor will report to Congress on the actions MSHA 
will take in response to the NIOSH report. As an interim step, MSHA is 
accepting State-approved refuge chambers as a means of providing 
breathable air for trapped miners.
     Underground to Surface Communications Systems in Coal 
Mines: As of May 2, 2007, MSHA has met with representatives of 49 
communications and tracking system companies, observed the testing or 
demonstration of 20 post-accident communications and tracking systems, 
and approved 19 systems, including four new devices.
     Brookwood-Sago Grants: MSHA has identified resources in 
its fiscal year 2007 budget to develop a pilot program. MSHA expects to 
award approximately half a million dollars through this demonstration.

    Final Rule on Mine Evacuation: On December 8, 2006, MSHA issued a 
final rule to strengthen mine evacuation practices in four key areas. 
The rule was based on an Emergency Temporary Standard (ETS) issued by 
MSHA on March 9, 2006.

     Self-Contained Self Rescue (SCSR) Devices: The rule 
requires coal mine operators to provide additional SCSRs for each miner 
underground in areas such as working places, on mantrips, in 
escapeways, and where outby crews work or travel. The rule also 
requires that they be readily accessible in the event of an emergency.
     Multi-Gas Detectors: The rule goes beyond the requirements 
of the MINER Act by requiring coal mine operators to provide multi-gas 
detectors to miners working alone and to each group of miners.
     Lifelines: The rule requires coal mine operators to 
install directional lifelines in all primary and alternate escape 
routes out of the mine. Lifelines help guide miners in poor visibility 
conditions toward evacuation routes and SCSR storage locations.
     Training: The rule requires coal mine operators to conduct 
quarterly training for miners in how to don SCSRs and especially how to 
transfer from one SCSR to another at a cache location. SCSR training 
units for annual expectations training have now been developed. On 
March 30, 2007, MSHA published a notice in the Federal Register 
notifying mine operators that the units were available. Mine operators 
must have had a purchase order for these training units by April 30th 
and must conduct training with them within 60 days of receipt of the 
units.
     Accident Notification: The rule requires all mine 
operators to ``immediately contact'' MSHA after an accident within 15 
minutes of its occurrence.

    New Mine Inspectors: MSHA has hired 117 new enforcement personnel 
staff and is on schedule to hire 170 new coal mine enforcement 
personnel by September 30, 2007. Once on board, these 170 new 
enforcement personnel will provide MSHA more coal enforcement personnel 
than at any point since 1994.
    Prosecution of Bad Actors: Since February 2006, MSHA has filed five 
precedent-setting lawsuits seeking injunctions against mine operators 
who have chronically failed to pay assessed civil money penalties for 
violations of the Mine Act. Two have been settled and the others are 
nearing favorable resolution. On May 15, 2007, MSHA filed a case in the 
6th Circuit Court of Appeals to enforce payment of $146,000 in overdue 
civil penalties.
    Special Emphasis Programs: Beginning in February 2007, MSHA 
initiated special emphasis inspection programs in southern West 
Virginia and eastern Kentucky to examine roof control plans and roof 
support methods in mines that use retreat mining methods.
    Special Health Emphasis Program: In February 2007, MSHA conducted a 
nationwide targeted Special Health Emphasis enforcement program to 
ensure operator compliance with the applicable respirable dust 
standard. Over 1,130 dust samples were collected from February 20 to 
March 3, 2007, at 61 selected underground coal mines in all 11 coal 
districts. Thirty-two citations and one unwarrantable failure order for 
ventilation plan violations were issued during the health inspections, 
two citations were issued for excessive dust, and 44 percent of the 
enforcement actions were designated as Significant & Substantial (S&S).
    Pattern of Violations: MSHA has recently initiated the development 
of objective criteria to identify mines that may have a pattern of 
violations. Once this new criteria are in place, MSHA plans to issue 
pattern of violations notices and orders where warranted.
    Stand Down For Safety: During the week of April 16, 2007, MSHA 
asked metal/nonmetal mine operators to take a brief ``time-out'' to 
meet with their employees and contractors to discuss practical accident 
preventative measures. MSHA inspectors, personnel from MSHA Educational 
Field Services, and individuals from the MSHA Small Mines Office 
continue to visit mines to distribute materials that address hazard 
identification and reporting, safety gear use, job planning, job set 
up, job procedures, and tool choice. MSHA also provided operators with 
technical help investigating root causes of accidents, including 
communications issues, human factors, and supervisory procedures.
                                 ______
                                 
                                      BHP Billiton,
                                     San Juan Coal Company,
                                     Waterflow, New Mexico,
                                                     June 18, 2007.
Hon. Patty Murray, Chair,
Subcommittee on Employment and Workplace Safety,
U.S. Senate,
113 Hart Building,
Washington, DC.

    Dear madame Chair: On behalf of BHP Billiton, I want to thank you 
for the opportunity to testify at the subcommittee's hearing of May 22, 
2007 on the topic of ``Promises or Progress: The MINER Act One Year 
later.'' It was my great honor and pleasure to provide you with the 
views of BHP Billiton on this critically important topic and to provide 
you with information about our safety and health programs.
    The additional purpose of this letter is to supplement my prepared 
statement in light of questions from Senator Rockefeller about my 
comments that our program at the San Juan Underground Coal Mine is 
designed not only to ensure that we comply with the requirements of the 
Federal Mine Safety and Health Act of 1977 (as amended by the MINER 
Act), but also that they are aimed at achieving safety results beyond 
compliance with Federal mine safety regulatory requirements.
    More specifically, in my prepared statement, I said that:

          Our bottom line is that at any BHP Billiton site, we seek to 
        create a mindset and an environment where people believe it is 
        possible to work injury-free and everyone understands they are 
        empowered to manage safe production by stopping work at any 
        time they feel the activity is unsafe. This occurs regardless 
        of where they are in the world, what role they undertake, or in 
        which business they work. We call this objective Zero Harm. 
        (Emphasis added.)

    Senator Rockefeller's skeptical questions are not unusual or 
unexpected. However, we want to assure the subcommittee that Zero Harm 
is serious business for our company. Indeed, Zero Harm is part of our 
overarching Sustainable Development Policy (see www.bhpbilliton.com/
bbContentRepository/sdpolicy.pdf) aimed at creating sustainable value 
for our shareholders, employees, contractors, suppliers, customers, 
business partners, and host communities. More specifically, as you can 
see from ``Our Future State, Achieving Zero Harm in Safety,'' (see 
www.bhpbilliton.com/bbContentRepository/nmc.pdf) among the principles 
of Zero Harm is that effective safety leadership is a prerequisite for 
promotion; compliance with safety standards and procedures is absolute; 
``at risk'' behaviors are not acceptable and are addressed when 
observed; and repeat incidents are evidence of an out-of-control 
operation.
    To provide in-depth support for our goal of Zero Harm, BHP Billiton 
has developed a number of protocols, standards, and guides all of which 
are provided to our employees and are available to the public on our 
Web site, www.bhpbilliton.com. These are discussed further below, with 
specific Web site preferences. Thus, our ``Fatal Risk Control 
Protocols'' were developed through work groups made up of individuals 
from across BHP Billiton with extensive experience in operations, 
following a review of our past fatalities and significant incidents.\1\ 
The Protocols establish minimum performance expectations for managing 
the risk areas identified at leading practice levels. However, the 
existence of these Protocols does not presume coverage of all risk 
areas faced by our operations. These other risk areas are addressed 
through the risk management process that is a key element of the BHP 
Billiton ``Health, Safety, Environment and Community Management 
Standards.'' \2\
---------------------------------------------------------------------------
    \1\ See, http://www.bhpbilliton.com/bb/SustainableDevelopment/
safety/fatalRisk ControlProto
cols.jsp.
    \2\ See http://bhpbilliton.com/bbContentReportinq/docs/
PeopleandEmployment/Business Con
ductGuide.pdf.
---------------------------------------------------------------------------
    Our ``health, safety, environment and community policy'' is also an 
integral part of BHP Billiton's ``Guide to Business Conduct,'' which 
defines the basic principles of business conduct demanded of each and 
every BHP Billiton employee.\3\
---------------------------------------------------------------------------
    \3\ See http://bhpbilliton.com/bbContentReporting/docs/
PeopleandEmployment/BusinessCon
ductguide.pdf.
---------------------------------------------------------------------------
    To conclude, across BHP Billiton, our line managers are accountable 
for implementation of the standards, systems, and procedures we have in 
place to achieve Zero Harm. We are confident that these standards and 
associated systems and procedures are the right ones, and have directed 
our efforts toward the effective and consistent implementation of these 
throughout the Company.
    In sum, in our drive to achieve Zero Harm we have learned that:

     Low injury frequency rates do not necessarily mean low 
fatality rates--we cannot and should not draw any comfort from low 
injury rates in terms of our capacity to eliminate fatalities;
     Injury reduction programs alone will not prevent 
fatalities--a complementary focused effort is required on fatal risk--
this is why we have implemented our Fatal Risk Control Protocols;
     Our fatalities often have similar underlying causes;
     High near-miss reporting often correlates with declining 
injuries or fatalities--our ability to take heed of the signals from 
near-miss events is crucial to our efforts in eliminating fatalities;
     Leadership visibility in the field is vital--our current 
state of safety maturity relies heavily on leadership energy to deliver 
improved performance;
     Effective contractor management is essential; and
     Hazard identification and risk awareness are fundamental 
to success.

    With particular regard to the San Juan Underground Coal Mine and 
our New Mexico Coal Operations, please find attached our ``New Mexico 
Coal Sustainability Report--2006.'' You will see that it provides 
important information and benchmarks about how our protocols, 
standards, and guides are implemented at our New Mexico Operations.
    We sincerely hope that this supplemental information is responsive 
to the questions raised.
    Thank you again for your interest in our miners' safety. BHP 
Billiton is ready and willing to advise and assist you as you continue 
to examine mine safety issues.

            Very truly yours,
                              S. L. Bessinger, Ph.D., P.E.,
                                               Engineering Manager,
                            BHP Billiton San Juan Underground Mine.

    [Whereupon, at 11:32 a.m., the hearing was adjourned.]

                                    

      
