[Senate Hearing 110-988]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 110-988



                               BEFORE THE


                                 OF THE

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                         REVIEW OF MINE SAFETY


                             JUNE 19, 2008


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               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
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

        Ilyse Schuman, Minority Staff Director and Chief Counsel


            Subcommittee on Employment and Workplace Safety

                   PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut     ISAKSON, Georgia
TOM HARKIN, Iowa                     RICHARD BURR, North Carolina
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 C. Kamela, Staff Director

                  Glee Smith, Minority Staff Director


                            C O N T E N T S



                        THURSDAY, JUNE 19, 2008

Murray, Hon. Patty, Chairwoman, Subcommittee on Employment and 
  Workplace Safety, opening statement............................     1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  opening statement..............................................     3
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, 
  opening statement..............................................     4
Stickler, Richard E., Acting Assistant Secretary of Labor for 
  Mine Safety and Health, Washington, DC.........................     4
    Prepared statement...........................................     6
 Kohler, Jeffery, Ph.D., Associate Director for Mining and 
  Construction, National Institute for Occupational Safety and 
  Health (NIOSH), Pittsburgh, PA.................................    14
    Prepared statement...........................................    16
Rockefeller, Hon. John D. IV, a U.S. Senator from the State of 
  West Virginia..................................................    23
O'Dell, Dennis, Administrator of Occupational Health and Safety, 
  United Mine Workers of America (UMWA), Fairfax, VA.............    33
    Prepared statement...........................................    36
Watzman, Bruce, Vice President, Safety and Health, National 
  Mining Association, Washington, DC.............................    45
    Prepared statement...........................................    46

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    James L. Weeks, ScD, CIH, Consultant to the United Mine 
      Workers of America, Member of the Technical Study Panel on 
      Belt Air...................................................    56


                    TWO YEARS AFTER THE MINER ACT: 
                       HOW SAFE IS MINING TODAY?


                        THURSDAY, JUNE 19, 2008

                                       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 10:05 a.m. in 
room SD-430, Dirksen Senate Office Building, Hon. Patty Murray, 
chairman of the subcommittee, presiding.
    Present: Senators Murray, Isakson, Allard, and Rockefeller.

                  Opening Statement of Senator Murray

    Senator Murray. Good morning. This subcommittee will come 
to order.
    Before I begin my remarks, I want to thank all of our 
witnesses and guests who are here today for your testimony and 
I also want to just say that it doesn't feel like a committee 
hearing without Senator Kennedy here. He is just a huge, huge 
advocate of this issue and has worked very hard and well with 
us. I know all of you share with me that our thoughts and 
prayers are with him as he works on his recovery and we look 
forward to having him back with us with all of his energy and 
passion again soon.
    More than 2 years ago, an underground explosion in West 
Virginia Sago Mine tragically killed 12 people. It was the 
first of a series of accidents that made 2006 the deadliest 
year for coal mining in more than a decade. Those horrific 
accidents brought to light the dangers facing coal miners and 
it exposed some of the worst shortcomings in our country's mine 
safety laws.
    I'm very proud that Congress responded quickly by passing 
the most comprehensive mine safety reform in decades to help 
ensure that our miners can go to work and come home safely.
    The MINER Act, which I was pleased to help draft, addresses 
glaring holes in the safety net protecting miners. It mandates 
written emergency response plans, underground communications, 
breathable air training, increased safety inspections by the 
Mine Safety and Health Administration, and many other 
    But changing the law is only the first step. It's MSHA's 
responsibility to implement the law and it's Congress's job to 
ensure that it is being enforced and that's the purpose of this 
subcommittee hearing today.
    On the second anniversary of the MINER Act, we are here to 
see whether MSHA is doing its job. Tragically since the MINER 
Act was passed, MSHA has already been tested more than once 
with the Crandall Canyon Mine collapse in Utah which killed 9 
people last August and with the 15 deaths we have seen in coal 
mines this year, including one this week.
    MSHA has made some progress. It is collecting record 
penalties from some of the most egregious safety violators and 
the MINER Act continues to encourage new developments in 
underground communications equipment. But I am concerned that 
when it comes to many other provisions, this administration has 
been ineffective and inconsistent.
    For example, MSHA's failure to control communications with 
victims' family members after the Crandall Canyon accident 
meant that families received inaccurate and often contradictory 
information during the rescue efforts. MSHA has taken too long 
to help mine operators develop emergency response plans 
mandated by the MINER Act and as a result 2 years later, most 
mines still don't have some key provisions in place and experts 
and workers advocates have expressed concerns about MSHA's rule 
governing how abandoned areas in mines should be closed off. 
They fear that it allows too many substandard seals to remain 
in place, the very problem that led to the Sago disaster in 
    In other cases, I'm concerned that MSHA has simply failed 
to be as aggressive as it needs to be to protect our miners. As 
the Crandall Canyon Mine collapsed showed, there is an urgent 
need for underground communications and tracking systems so 
that rescuers can locate trapped miners after a disaster.
    The MINER Act requires all coal mines to install wireless 
communication systems or to install a next best alternative by 
June 15, 2009. Well, that date is growing closer and closer and 
MSHA has been slow to provide guidance on how best to meet the 
requirements for that provision.
    I fear it may be already too late to meet the deadline and 
I hope to hear from MSHA today that it has a plan to address 
those concerns.
    As I said at the beginning of my remarks, the MINER Act 
gave the Administration the tools to make significant safety 
improvements, but incomplete emergency plans and nonexistent 
radio systems won't protect miners when a disaster strikes. We 
need to see the Administration make clear progress and on the 
second anniversary of the MINER Act, I have some serious 
concerns that it's not keeping up.
    It is unacceptable to me if delays and lax enforcement of 
some of these new provisions are putting our coal miners at 
risk of injury, disability and death on the job. So I hope that 
this hearing will leave us with an accurate assessment of what 
work needs to be done and how we in Congress can help ensure 
the MINER Act provisions are being followed.
    I look forward to the testimony of all of our witnesses 
today. This morning, we will hear from Mr. Richard Stickler, 
the Acting Assistant Secretary of Labor for Mine Safety and 
Health, Dr. Jeffery Kohler with the National Institute for 
Occupational Safety and Health, and on our second panel, Mr. 
Dennis O'Dell from the United Mine Workers of America and Mr. 
Bruce Watzman from the National Mining Association.
    So again, I thank all of our witnesses for being here 
today, look forward to your testimony, and with that, I will 
turn it over to Senator Isakson who's been a great partner when 
working on this issue.

                      Statement of Senator Isakson

    Senator Isakson. Well, thank you, Senator Murray. I'm 
delighted to work with you and I share with you the prayers and 
thoughts for Senator Kennedy and his treatment for his cancer 
and we'll look forward to having him back in the committee as 
soon as he's able.
    Sago, Aracoma and Darby Mine accidents in 2006 began a new 
day in mine safety. Concerted efforts by Congress, the 
Administration, mine operators and miners has resulted in 
significant and rapid improvement in safety of mining, both at 
the surface and underground.
    I was privileged to work with Senator Murray, Senator 
Kennedy, Senator Enzi, Senator Rockefeller, and Senator Byrd in 
the passage of the MINER Act, the Mine Improvement and New 
Emergency Response Act of 2006.
    Much has improved since the events in West Virginia that 
drew the Nation's attention to coal mine safety. In 2007, the 
tally rate of deaths per 100,000 active miners for all miners 
was down 16 percent from 2006. The fatality rate for coal 
miners fell 29 percent.
    Although already on the increase prior to Sago, Aracoma and 
Darby accidents, MSHA has dramatically increased its 
enforcement efforts in both coal, metal and nonmetal mines and 
mine accidents. In 2007, the agency issued over 140,000 
citations and orders in all mines, up 13 percent from 2005.
    When divided out per miner, fines now amount to almost $200 
per miner per year. This is an increase of 172 percent since 
2005. Fines alone don't ensure safety. The cooperation and the 
concerted effort of the mine operators and the companies as 
well as the miners themselves do and we have seen some dramatic 
improvement in those areas.
    Tens of thousands of self-contained self-rescuers have been 
placed into service in underground mines. Miners are being 
trained and retrained on the donning and the use of these self-
service units and a new wave of dockable SCSRs are on their way 
to miners nationwide.
    Mines have installed lifelines in their escape ways so 
miners can find the way out of a mine, even in total darkness. 
Dozens of underground coal mines have implemented new state-of-
the-art systems to track miners while underground and to 
provide post-accident communication. New mine rescue teams have 
been added across the Nation.
    This progress does not mean we should rest on our laurels 
or should fall into the easy trap of complacency. Instead, it 
shows attention as created by the MINER Act worked and I look 
forward to continuing with Senator Murray to follow closely the 
work of MSHA and the work and the improvements within the 
industry to see to it that we go to a year where we have no 
loss of miners in any coal mine, metal or nonmetal mine, in the 
United States of America.
    Thank you, Madam Chairman.
    Senator Murray. Thank you very much, Senator Isakson.
    Senator Allard.

                      Statement of Senator Allard

    Senator Allard. Madam Chairman, I do not have a long 
statement. I'm anxious to hear what the witnesses have to say 
and I do have some questions I would like to ask.
    We are all concerned about mining accidents and certainly 
in my State of Colorado, we have our fair share of mines. It 
has been 2 years since the MINER Act was enacted into law, and 
this law has produced many changes in the mining regulations 
and employee safety rules. I am very interested in hearing the 
witnesses' testimony on how miner safety has progressed and any 
possible changes that make it difficult to improve performance. 
I appreciate the expertise of the witnesses and would like to 
thank them for appearing here today in front of the HELP 
Subcommittee on Workplace Safety and being willing to answer 
some of our questions.
    Senator Murray. Thank you very much. We will begin our 
testimony this morning with Richard Stickler.


    Mr. Stickler. Good morning, Chairwoman Murray, Senator 
Isakson and members of the subcommittee.
    I appreciate the opportunity to share the many improvements 
that we're making at the Mine Safety and Health Administration 
and to report our progress in implementing the MINER Act.
    Since arriving at MSHA, I have been focused on improving 
the way MSHA approaches the core mission of protecting our 
Nation's miners and effectively implementing the MINER Act, the 
first major change in the Federal Mine Safety and Health Act in 
nearly 30 years.
    In the last 2 years, since the MINER Act was signed into 
law, MSHA has published six final rules in the Federal 
Register, issued emergency temporary standards, and proposed 
four additional rules, including two this week for refuge 
alternatives and belt air.
    MSHA has implemented changes in policy clarifications for 
our employees and mine operators through more than 75 public 
information bulletins, program policy letters, and procedural 
instruction letters. Many of these changes are the result of 
the MINER Act, but we've also revised policies and procedures 
that are not covered by the MINER Act.
    We have concluded three major accident investigations and 
subsequent internal reviews and taken action on all 153 
recommendations derived from these reviews. We've also begun to 
implement reforms to address all the recommendations in the 
recent reports from the Department of Labor's Office of 
Inspector General and the Government Accountability Office.
    We're nearing completion of our Accident Investigation 
Report regarding Crandall Canyon and await the independent 
internal review report.
    Implementation of the MINER Act has been a top priority for 
MSHA and we have made significant progress. As a result, 
emergency response plans have been approved and being 
implemented at all underground coal mines, mine rescue training 
standards have been increased and mine emergency response plans 
have been improved.
    Our headquarters emergency response procedures have been 
updated to include the role of family liaison and primary 
communicator. The amount of penalties assessed for violations 
have been increased. The strength, design and required 
maintenance of mine seals have been improved beyond the 
requirements of the MINER Act.
    MSHA has addressed refuge alternatives and the Technical 
Study Panel recommendations on belt air by issuing proposed 
rules this week that exceed the MINER Act requirements. These 
are just some of the highlights of the MINER Act 
    I would also like to mention a few of the many improvements 
MSHA has made beyond the scope of the MINER Act. We've improved 
our hiring practice and addressed the staffing issues due to 
attrition and retirements. Since June 2006, we've hired more 
than 322 coal mine enforcement personnel, increasing our 
personnel to the highest level since 1994.
    Since the Crandall Canyon tragedy, MSHA has taken aim at 
improving safety at deep cover mines. Last August, MSHA started 
to re-examine and retreat mining plans under deep cover. We've 
conducted ground control investigations at 17 mines identified 
as operating in bump-prone conditions. We have re-engineered 
our ground control approval process and provided specific 
guidance to district managers as to what type of ground control 
plans should be referred to Tech Support for additional 
    MSHA has implemented a comprehensive approach to 
enforcement by increasing our presence at the mines, improving 
the quality of each inspection, and aggressively holding 
scofflaw operators accountable.
    In this effort, we've increased the number of inspections, 
implemented a new inspection tracking system, improved 
inspector training, and developed a computer screening process 
to better identify and deal with repeat violators.
    Last October, I announced the implementation of a 100 
percent inspection plan. This plan will mark the first time in 
the history of the agency that we will have completed 100 
percent of our mandated inspections and I'm pleased to say that 
we're on target to meet those requirements.
    Earlier this year, MSHA discovered a systematic problem 
with assessments of violations. While 99.6 percent of all 
violations have been properly assessed since 1995, less than 
\1/2\ of 1 percent were not assessed over that period.
    We've identified and fixed the two issues. The first was a 
technical issue with MSHA's computer system and the second was 
identified as a management oversight. We at MSHA continue to 
make significant progress toward improving mine safety and 
toward implementation of the MINER Act and we look forward to 
continuing this effort.
    Thank you for inviting me here today.
    [The prepared statement of Mr. Stickler follows:]
               Prepared Statement of Richard E. Stickler
    Chairwoman Murray, Senator Isakson, and other members of the 
subcommittee, thank you for the opportunity to share with you the many 
changes and enhancements we are making at the Mine Safety and Health 
Administration (MSHA) including nearing completion of our 
implementation of the Mine Improvement and New Emergency Response Act 
of 2006 (MINER Act or ``the Act'').
    Since I arrived at MSHA, I have been focused on improving the way 
MSHA approaches its core mission of protecting the safety and health of 
our Nation's miners.
    The MINER Act was the first major change to the Federal Mine Safety 
and Health Act in 30 years. In the last 2 years since the MINER Act was 
signed into law, MSHA has worked diligently to implement the act and to 
improve the overall safety and heath of our Nation's miners.
    For example, MSHA has:

     Published six final rules in the Federal Register;
     Issued an Emergency Temporary Standard;
     Proposed four additional rules.

    MSHA also has implemented changes and policy clarifications for 
MSHA employees and mine operators through more than 75 Program 
Information Bulletins (PIBs), Program Policy Letters (PPLs), or 
Procedure Instruction Letters (PILs). Many of these changes are a 
result of the MINER Act, but we have also revised policies and 
procedures that are not covered by the MINER Act.
    We have concluded three major accident investigations and related 
internal reviews. MSHA has made improvements to our inspection and 
training procedures by taking action on all 153 recommendations derived 
from these internal reviews. We are planning a follow-up meeting in 
November 2008 for all managers and supervisors in our coal division to 
review progress and to update the training they received on these 153 
items in July 2007.
    We are also nearing completion of our accident investigation 
regarding Crandall Canyon and are awaiting the accident report, as well 
as the Independent Review team's report on MSHA's actions at Crandall 
    We have improved our hiring practices to address staffing issues 
due to attrition and retirements. Since June 2006, we have hired 322 
coal enforcement personnel, and the majority of the hires made in 
fiscal years 2006 and 2007 are on track to complete their training and 
receive their AR cards by the end of this fiscal year. While the net 
increase, due to attrition, is 163 additional inspectors, the overall 
number of coal enforcement personnel is at its highest level since 
    We have strengthened and updated our citation and penalty 
structure. While the amount of penalties is not a measure of our 
success as an agency, penalties are a critical enforcement tool in 
ensuring compliance with the law and regulations.
    Nationwide, between fiscal years 2003 and 2007:

     The number of citations and orders issued to coal mine 
operators increased by 42 percent.
     The rate of citations and orders issued per coal mine 
inspection hour increased by 62 percent.
     Elevated enforcement at coal mines, including 
unwarrantable failures (high negligence) and imminent danger orders, 
increased by 98 percent.

    The ultimate measure of MSHA's success is in how well we protect 
miners from harm. While we recognize more work needs to be done, the 
trends are encouraging. The coal all-injury rate, which is the reported 
injuries per 200,000 employee work hours, declined 24 percent between 
fiscal years 2003 and 2007.
    Recently MSHA received a separate report from the Department of 
Labor's Office of Inspector General (OIG), as well as a report on 
conclusions made by the Senate Health, Education, Labor, and Pensions 
Committee, relating to the Crandall Canyon tragedy. We also received an 
unrelated report on the separate issue of Emergency Response Plans from 
the Government Accountability Office (GAO). Although it would be 
inappropriate to go into depth about the findings of the two reports on 
the Crandall Canyon accident before the official MSHA accident 
investigation team has made its report, I want to report to the 
subcommittee that MSHA has already begun to implement reforms to 
address all of the recommendations, including some reforms that were 
already in progress before receiving the reports.
    For example, MSHA has been working closely with the Department of 
the Interior's Bureau of Land Management (BLM) since September 2007 and 
developed a Memorandum of Understanding (MOU) with BLM to facilitate 
the communication of information on geological conditions or mining 
practices that impact the health and safety of miners. In response to 
the OIG and GAO reports, MSHA immediately began to create a more 
uniform and formal set of criteria for all Districts to use when 
approving roof control plans and emergency response plans.
                    implementation of the miner act
    Implementation of the MINER Act has been a top priority for MSHA 
since the act was signed into law 2 years ago. We have made significant 
progress, which I outline below by section of the act.
Section 2.--Emergency Response
    A major component of the MINER Act is the requirement for each 
underground coal mine operator to have an Emergency Response Plan 
(ERP). In March 2006, 3 months prior to the MINER Act being signed into 
law, MSHA issued an Emergency Temporary Standard (ETS) on emergency 
mine evacuation. We published subsequent guidance specifically 
addressing ERPs in October, and issued a final rule in December 2006. 
Highlights of the final rule include:

     Self-Contained Self-Rescue (SCSR) Devices: The rule 
requires coal mine operators to provide additional SCSRs for each miner 
in areas such as underground working places, on mantrips, in escape 
ways, and where out by crews work or travel. The rule also requires 
that SCSRs 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. In 
accordance with the MINER Act, lifelines must be fire-resistant by June 
15, 2009.
     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 
had to have a purchase order for these training units by April 30, 
2007, and conduct training with them within 60 days of receipt of the 
     Accident Notification: The rule requires all mine 
operators to ``immediately contact'' (i.e., at once without delay and 
within 15 minutes) MSHA after an accident.

    I am pleased to announce that ERPs have been approved and are being 
implemented for all underground coal mines as specified in the act, 
except where manufacturers of SCSRs and refuge chambers are unable to 
keep up with demand. As of June 9, 2008, there are 559 fully approved 
ERPs, and one partially approved ERP. The partially approved ERP was 
received within the last 6 months, and MSHA continues to work with mine 
operators to bring about full compliance. MSHA reviews each of these 
ERPs every 6 months and, where necessary, requires underground coal 
mine operators to implement improvements.
    In February 2007, MSHA issued guidance to mine operators about 
acceptable options for providing breathable air in underground coal 
mines. Options included:

     Drilling bore holes within 2,000 feet of the working 
sections of mines;
     Having 48 hours of breathable air located within 2,000 
feet of working sections coupled with contingency plans for drilling 
bore holes if miners are not rescued within 48 hours;
     Having 96 hours of breathable air within 2,000 feet of 
working sections or other options that provide equivalent protection.

    We are also working on a Refuge Alternatives rule, which is 
discussed later, under Section 13 of the MINER Act.
    In addition to post-accident breathable air, the ERPs must address 
post accident communications. The MINER Act requires mine operators to 
submit plans to install two-way wireless communications and electronic 
tracking systems by June 2009. In the meantime all mines have installed 
redundant communications systems as required by the MINER Act. As of 
May 28, 2008, MSHA has observed testing or demonstration of 49 
communications and/or tracking systems at various mine sites. We have 
met with representatives from 62 communications and tracking system 
companies. To date, we have had discussions with various vendors 
regarding 168 different proposals for the development of mine 
communications and tracking systems.
    MSHA is currently focusing resources on the evaluation of approval 
applications for communications and tracking technology. Since the 
beginning of 2006, we have issued 45 new or revised approvals for 
communications and tracking products. Last month, we issued a Program 
Policy Letter to establish approval guidelines for communications and 
tracking devices under the provisions of the MINER Act. We are 
currently investigating 48 approval applications for communications and 
tracking technology.
    We are continuing to work with the Communications Partnership 
Working Group sponsored jointly by the National Mining Association and 
the Bituminous Coal Operators Association to arrange for demonstrations 
of additional systems. Should technology take longer to develop, the 
MINER Act allows for alternative means of compliance if the truly 
wireless technologies, meaning that no wired component of the system 
exists underground where it may be damaged by fire or explosion, are 
not fully developed by June 2009. MSHA is working with NIOSH and plans 
to provide guidance on performance-based criteria for acceptable 
technological alternatives by January 2009.
Section 4.--Mine Rescue Teams
    On February 8, 2008, MSHA published a final rule that implements 
Section 4 of the MINER Act by addressing composition and certification 
of mine rescue teams and improving their availability and training. The 
final rule increases training, as well as improves overall mine rescue 
capability, mine emergency response time, and mine rescue team 
effectiveness. Components of the final rule include:

     Requires a person knowledgeable in mine emergency response 
to be present at each mine on each shift and receive annual emergency 
response training using an MSHA-prescribed course.
     Requires two certified mine rescue teams for each mine and 
includes criteria for certifying the qualifications of a mine rescue 
     Requires mine rescue team members to be available at the 
mine within 1 hour from the mine rescue station.
     Requires team members to participate in training at each 
mine serviced by the team (a portion of which must be conducted 
underground), and be familiar with the operations and ventilation of 
the mine.
     Requires team members to participate annually in two local 
mine rescue contests.
     Provides for four types of mine rescue teams: mine-site, 
composite, contract and state-sponsored.
     Requires annual training in smoke, simulated smoke or an 
equivalent environment.
     Increases required training from 40 to 96 hours annually.
Section 5.--Prompt Incident Notification
    MSHA addressed prompt notification in the Emergency Mine Evacuation 
rule published on December 8, 2006 and in the civil penalty regulations 
published on March 22, 2007. The new rule established a National Call 
Center with a toll free phone number for use in reporting mine 
accidents to MSHA at once without delay and within 15 minutes after an 
operator knows or should know that an accident occurred.
Section 7.--Requirement Concerning Family Liaison
    On November 1, 2006, Secretary of Labor Elaine L. Chao signed 
Secretary's Order #17-2006 directing MSHA to develop the MSHA Family 
Liaison Program. MSHA issued PPL P06-V-11 on family liaison and primary 
communicator functions on December 22, 2006 implementing Section 7 of 
the MINER Act. To date, MSHA has trained 21 family liaisons with the 
assistance of the National Transportation Safety Board and the American 
Red Cross.
    MSHA has completed an exhaustive review and updated our 
Headquarters' Mine Emergency Response Procedures. Some new procedures 
are intended to improve coordination between the Family Liaison and 
Primary Communicator in addressing the needs of a miner's family 
following a mine accident. For example, all Districts are required to 
maintain Family Liaisons who are specifically trained to assist 
families in the event of an emergency. The Family Liaisons establish a 
24-hour rotation schedule to ensure a continuing presence. They also 
coordinate with the Primary Communicator and interact with local 
officials. The Liaisons remain accessible to family members by 
telephone, cellular phone, e-mail, and conventional mail. Liaisons also 
maintain a log of all significant events.
    Additionally, each MSHA District is required to maintain Primary 
Communicators to establish contact with and brief representatives of 
miners, the mine operator, media and State agencies. Primary 
Communicators also brief the Department of Labor's Office of Public 
Affairs and likewise maintain a log of all significant events. Another 
important improvement involved the efforts of network personnel from 
our Program Evaluation and Information Resources (PEIR) division who 
have enhanced MSHA's mobile voice and data communication capabilities 
with new satellite phones and enhanced coverage.
Sections 5 & 8.--Penalties
    After passage of the MINER Act, MSHA immediately implemented 
increased penalties for late accident notification and ``unwarrantable 
failure'' violations which are characterized by a high degree of 
negligence. On October 26, 2006, MSHA issued Procedure Instruction 
Letter (PIL) NO. I06-III-4 to implement the ``flagrant'' violation 
provision of the MINER Act. On March 22, 2007, MSHA published a final 
rule to increase civil penalty amounts for all mine safety and health 
violations. This rule goes beyond the requirements of the MINER Act and 
demonstrates MSHA's commitment to strong enforcement. As of June 6, 
2008, MSHA has already assessed 53 flagrant violations, seven of which 
were assessed fines at the $220,000 maximum. These are the largest 
proposed penalties in the agency's history. These actions have resulted 
in a doubling of civil penalties issued from $35 million in calendar 
year 2006, to $75 million in calendar year 2007.
    As prescribed by the MINER 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 
$70,000) for failing to notify MSHA within 15 minutes of a death or an 
injury or entrapment with a reasonable potential to cause death.

    Other major provisions of the final rule applicable to all mine 
operators and contractors include:

     Significantly 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 
     Replaces the $60 single penalty with higher formula 
assessments for non-Significant and Substantial (non-S&S) violations.
Section 10.--Sealing of Abandoned Areas
    On April 18, 2008, MSHA published a final rule replacing the May 
22, 2007 ETS that increased protections for miners who work in 
underground coal mines with sealed off abandoned areas. Although 
Section 10 of the MINER Act gave MSHA until December 2007 to issue a 
new standard on mine seals, MSHA concluded that an emergency temporary 
standard was necessary in May 2007 to protect miners, based on MSHA's 
accident investigations of the Sago and Darby Mine explosions, in-mine 
seal evaluations, and reports on explosion testing and modeling. The 
final rule and ETS went beyond the MINER Act--which requires that the 
standard for mine seals be greater than the 20 pounds per square inch 
(psi) requirement 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 
    The final rule has a number of protections that will improve miner 
safety, including:

     Air sampling behind seals that are built to withstand less 
than 120 psi and withdrawal of miners when the atmosphere behind a seal 
is explosive.
     Removal of potential ignition sources from sealed areas. 
If insulated cables cannot be removed safely, the seal must be 
constructed to withstand at least 120 psi.
     A three-tiered approach as in the ETS, which requires 
additional seal strength where sealed atmospheres are more dangerous.
     Operator certification and recordkeeping requirements for: 
(1) sampling; (2) construction and repair of seals; and (3) training.
     Increased training for those involved in seal sampling, 
construction and repair.
     Requirements for certification of seal designs.
     Enhanced recordkeeping to demonstrate compliance.

    Seal manufacturers and mine operators have 6 months to submit 
revised seal applications and ventilation plans, respectively, to 
comply with the final rule.
Section 11.--Technical Study Panel
    Section 11 of the MINER Act requires that MSHA respond to a report 
by the Technical Study Panel (Panel), within 180 days, containing a 
description of the actions, including regulatory changes, on the 
recommendations of the Panel. The Secretary established the Panel in 
accordance with the MINER Act. The Panel conducted an independent 
scientific engineering review, and issued its report on December 20, 
2007, on the Utilization of Belt Air and the Composition and Fire 
Retardant Properties of Belt Material in Underground Coal Mining. On 
June 19, 2008, MSHA will publish in the Federal Register a proposed 
rule that implements the recommendations of the Panel.
Section 13.--Research Concerning Refuge Alternatives
    Section 13 of the MINER Act requires that MSHA respond to a 
research report by the National Institute for Occupational Safety and 
Health (NIOSH), within 180 days, containing a description of the 
actions, including proposing regulatory changes, on refuge alternatives 
in underground coal mines. NIOSH published its ``Research Report on 
Refuge Alternatives for Underground Coal Mines'' in January 2008. MSHA 
had a follow-up meeting with NIOSH on March 14, 2008. On June 16, 2008, 
MSHA published in the Federal Register a proposed rule to require that 
underground coal mines provide refuge alternatives to protect miners 
when a life-threatening event occurs that makes escape impossible. 
MSHA's proposed rule is based on the Agency's data and experience, 
recommendations from the NIOSH report, research on available and 
developing technology, and the regulations of several States.
    Under the proposed rule, a refuge alternative would provide a 
protected, secure space with an isolated atmosphere that creates a 
life-sustaining environment to protect miners and assist them with 
escape in the event of a mine emergency. The proposed rule includes 
requirements that the manufacturer or third party test a refuge 
alternative and its components, such as breathable air and air 
monitoring, prior to obtaining MSHA approval. The proposed rule allows 
the use of several types of refuge alternatives and requires that 
persons who examine refuge alternatives be trained.
Section 14.--Brookwood-Sago Mine Safety Grants
    On July 25, 2007, MSHA published a Federal Register notice 
soliciting applications for Brookwood-Sago grants. In October 2007, 
MSHA awarded approximately half a million dollars in grants to seven 
organizations to develop new training modules and best practices 
materials to improve miner training. MSHA intends to once again issue 
these grants in the next fiscal year, with the solicitation for grant 
applications to be published this summer.
    To date, MSHA has reviewed three of the grants and will continue to 
monitor the remaining four until they are completed. Those reviewed 

     Vincennes University, where a program to improve 
communications in the command center during a mine emergency was 
developed and tested. We monitored a mine emergency exercise and 
received positive feedback from participants interviewed.
     The Virginia Department of Mines, Minerals and Energy who 
developed a responsible person training program to assist in the 
training of ``responsible persons'' as required in MSHA's Mine Rescue 
Teams final rule, published earlier this year (February 8, 2008). We 
have reviewed their training materials and have determined that it 
supports our responsible person training requirement.
     Penn State University's grant program focused in part, on 
improving escape in the event of a mine emergency. MSHA recently 
participated in and monitored a town hall meeting that brought together 
experts to share mine emergency escape best practices with the mining 
               post crandall canyon ground control action
    In addition to implementing provisions of the MINER Act, MSHA has 
worked steadily to improve the safety and health of our Nation's miners 
in other ways as well. Since the Crandall Canyon tragedy, MSHA has 
taken important actions aimed at improving safety at deep cover mines. 
These actions include the following:

    Retreat Mining Plans. Last August, during the Crandall Canyon 
rescue effort we determined it was necessary to re-examine retreat 
mining plans under deep cover and mine plans in bump prone areas. We 
rescinded our approval of all retreat mining plans (other than long-
wall plans) for mines with cover depths of 1,500 feet or more in 
District 9 which has some of the deepest cover in the country. These 
mines were required to resubmit their mine plans to MSHA for re-
    Ground Control Investigations. We also conducted ground control 
investigations at 17 coal mines with identified bump prone conditions. 
These investigations were conducted by our Technical Support personnel 
beginning in August 2007 and continuing through early February 2008. 
Recommendations stemming from these investigations addressed such 
important safety protections as: mine design to improve ground 
stability; a more thorough evaluation of geologic hazards; the use of 
personal protective equipment; the installation of guards on long-wall 
face equipment; and the implementation of administrative controls to 
keep personnel out of high-risk or bump prone areas during the mining 
    Targeted Staff. In February 2008, MSHA detailed a Technical Support 
engineer to the District 9 Denver office to serve as the acting roof 
control supervisor pending selection of a new supervisor. The District 
9 roof control supervisory position was permanently filled, effective 
June, 8, 2008.
    Best Practices. In February 2008, MSHA posted on its Web site, 
www.MSHA.gov, a list of Best Practices addressing ``Ground Control for 
Deep Cover Coal Mines.''
    Ground Control Analytical Tools. To improve ground control 
analytical tools, MSHA has been working with researchers from NIOSH to 
determine how best to improve the Analysis of Retreat Mining Pillar 
Stability (ARMPS) computer program which was updated in December 2007. 
The ARMPS computer program is the most widely used program by ground 
control specialists to model and analyze pillar design during room and 
pillar retreat mining operations. MSHA recently issued a PIB concerning 
``Precautions for the use of the ARMPS computer program.'' These 
precautions will provide guidance on the proper use of the ARMPS 
    Roof Control Plan Enhancements. To further strengthen roof control 
plans submitted to MSHA, we have instituted a comprehensive, national 
checklist for all plan submissions and reviews. We are asking mine 
operators to justify and provide to us detailed information for non-
typical roof control plans and a process has been established to 
involve Technical Support in the review of non-typical and potentially 
problematic roof control plans. Our inspection personnel will visit all 
retreat mining sections at least monthly to evaluate the retreat mining 
plans and will assure that the plans are effective and that the miners 
are familiar with their plans.
    Additional Training. MSHA provided training for 60 of its employees 
in November and December 2007 on ARMPS and another commercially 
available computer modeling program for roof and pillar stability. The 
commercial software program was purchased and installed in both Coal 
Mine Safety and Health and Metal and NonMetal districts, as well as in 
MSHA headquarters, and the Triadelphia and Pittsburgh Offices of 
Technical Support. MSHA and NIOSH are coordinating additional training 
for the future.
    Re-engineered Roof Control Plan Approval Process. MSHA has 
developed a revised roof control plan approval process that includes 
specific criteria and a detailed checklist to document the steps of the 
plan review and issued guidance to District Managers for the review of 
roof control plans specifying those plans that should also be reviewed 
by Pittsburgh Tech Support.
                       comprehensive enforcement
    I believe that our recently implemented comprehensive approach to 
enforcement has greatly improved our effectiveness. This approach 
consists of increasing MSHA's presence at mine sites, improving the 
quality of each MSHA inspection, increasing the amount of penalties and 
aggressively going after scofflaw mine operators.
    Through this comprehensive enforcement effort, MSHA has:

     Increased our number of enforcement personnel;
     Implemented a new inspection tracking system;
     Improved inspector training;
     Enhanced overall inspection quality; and
     Better utilized enforcement tools to aggressively deal 
with flagrant and repeat violators.

    Since June 2006, we have hired 322 coal mine enforcement personnel. 
Once fully trained, I strongly believe the increased presence of these 
MSHA enforcement staff at the job sites will have a positive impact on 
mine safety and health.
    To make sure MSHA has an increased presence at mining operations, 
and complies with the Mine Act's requirement for mandated inspections 
of both coal and metal/nonmetal mines, last October I announced the 
launch of MSHA's 100 Percent Inspection Plan. The successful 
implementation of this plan will mark the first time in the history of 
the Agency that we have completed all of our mandated regular safety 
and health inspections of both coal and metal and nonmetal mines. The 
Plan calls for the temporary reassignment of MSHA inspectors to areas 
where they are most needed, and it provides for increased overtime and 
travel needed to complete inspections until all of our new enforcement 
personnel who were hired in 2006 and 2007 have completed their training 
and are fully certified. We have developed a monthly Key Indicator 
report to track progress in each field office and District toward 
reaching the 100 percent completion rate. Since we instituted this 
program, I am pleased to say that all mandated regular inspections for 
the first half of the year have been completed (in both coal and metal 
and nonmetal), and we are firmly on target to meet our requirements 
moving forward.
    We have also implemented changes to improve overall quality and 
oversight of our inspections. We developed a new inspection handbook 
that clearly defines all 172 items that must be inspected as part of a 
complete, regular underground mine inspection. The handbook was 
developed in response to MSHA internal reviews and also addresses 
concerns raised in a report by the OIG last November. Additionally, the 
handbook establishes documentation requirements for each item to be 
inspected, which will assist in the management and oversight of the 
    MSHA also developed an Inspection Tracking System (ITS) to 
supplement the inspection handbook. The ITS is fully integrated with 
the handbook and provides a uniform way for inspectors to document each 
item they inspect. Coal field office supervisors will be required to 
document that an inspection is thorough before it is counted as 
    MSHA has also taken steps to improve the quality of inspections by 
strengthening supervisory and managerial oversight. Steps include the 
following directives:

     Supervisors are to accompany inspectors four times per 
month to evaluate whether inspections are complete.
     Supervisors are to annually visit each producing mine to 
assess the level of enforcement.
     Assistant district managers must visit a mine at least 
monthly to ensure enforcement activity is consistent with conditions at 
the mine.
     District Managers are to visit a mine with a poor 
compliance record at least monthly. These mines have citation records 
above the national average (for their mine type and classification) for 
Significant and Substantial (S&S) violations and elevated enforcement.
     Peer reviews and supervisory reviews must include an 
inspection of belt conveyor entries.
     Eleven Key Indicator reports we developed for review of 
critical data are to be used by managers and supervisors to monitor 
inspections and enforcement. Reports are distributed monthly and 
include a completion rate report.
     Headquarters Accountability review process was revised to 
evaluate District and Field Office inspection and enforcement 
activities. Headquarters is required to conduct a minimum of four Coal 
and two Metal/Nonmetal Districts reviews per year. These reviews are 
rotated to ensure that each District is reviewed, at a minimum, every 3 
     Performance plans of all supervisors and managers were 
revised to hold them accountable for using MSHA Key Indicators to 
direct resources, monitor and improve enforcement performance and 
quality, and ensure that the completion rate of all ``complete'' 
inspections is 100 percent.

    Another component of the comprehensive enforcement approach is 
increasing penalties to a level that truly gets an operator's 
attention. Monetary fines can not be thought of as ``the cost of doing 
business.'' The ability to impose a meaningful penalty is an essential 
component of our enforcement plan. MSHA has taken several actions 
toward that end.
    We have also implemented several changes to improve our civil 
penalty payment process to streamline debt collection and make the 
process more efficient. I believe that this increased penalty structure 
will provide a greater incentive for operators to ensure that safety 
and health laws are followed, which will result in safer working 
conditions for miners.
    We continue to be particularly aggressive with those mine operators 
who repeatedly violate MSHA standards. The Mine Act authorizes MSHA to 
issue a withdrawal order for each S&S violation after the mine operator 
has been given a pattern of violations notice. MSHA has instituted this 
pattern of violations process under the Mine Act to address mines with 
an inspection history of recurrent S&S violations that show a mine 
operator's disregard for the health and safety of miners. MSHA 
developed a database and computer screening process to objectively 
identify those mines that may have a potential pattern of violations 
and has to date sent out three rounds of notices to mines that exhibit 
a potential pattern of violations. The notices identified the potential 
pattern and contained a set of criteria and timeframes the operator had 
to meet in order to not be issued a pattern of violations notice.
    The first round of notices was sent in June 2007 to eight mining 
operations. Seven of the operators met or exceeded the necessary 
criteria for reducing violation rates. They successfully and 
dramatically reduced their S&S violation rates--on average, by 50 
percent, but we strongly encourage these operators to continue to 
improve their compliance record. The eighth operator has been inactive 
since July 2007.
    In December of last year, we notified 20 additional mine operators 
that they met the criteria for potential pattern of violations. These 
mine operators all instituted corrective action plans and MSHA closely 
monitored their progress in reducing serious violations. The results 
were dramatic; with 20 mines reducing S&S violation rates an average of 
65 percent. Although MSHA regulations require an annual screening of 
mines to identify those exhibiting a potential pattern of violations, 
the agency has performed its third screening since last June. The third 
screening identified 14 coal mines with notifications to the mine 
operators delivered on June 12, 2008.
    These and other efforts to enhance enforcement under the Mine Act 
resulted in a 100 percent increase in the percent of violations 
contested by mine operators in calendar year 2007. At current contest 
rates, we expect the number of violations contested to continue to 
significantly increase. We continue to work with the Department's 
Office of the Solicitor to ensure that all these contests are handled 
thoroughly and timely, and that high priority enforcement cases 
involving flagrant violations, pattern of violations, fatal accidents 
and scofflaw operators are fully supported.
    Several months ago, MSHA discovered a systemic problem with the 
assessment of violations. While 99.6 percent of all citations have been 
properly assessed since 1995, less than \1/2\ of 1 percent were not 
assessed over this period of time. We identified two issues that led to 
the small percentage of un-assessed citations. The first was a 
technical issue with the MSHA Standardized Information System (MSIS). 
The computer system was erroneously changing the type of assessment for 
some violations from a computer-generated fine to one requiring a 
manual penalty assessment. The second was identified as management 
oversight deficiencies that, once discovered, were immediately 
    District Managers have been directed to immediately mark 
``assessment ready'' all un-assessed violations that are between 13 and 
18 months past the issue date and to monitor system reports to ensure 
that all future citations and orders are marked ``assessment ready'' 
within 11 months of the date of issuance.
    Revisions have been made to the Un-assessed Violation Report which 
is now transmitted automatically each month to District Managers, 
Administrators, Director of Assessments, Deputy Assistant Secretaries, 
and the Assistant Secretary as a Key Indicator report.
                        management and oversight
    We have also made important changes to hold ourselves to strict 
standards. MSHA's Accountability Program has been revised based on the 
internal review findings after the Sago, Aracoma, and Darby accidents 
and the findings of an August 2007 Audit by the OIG on the prior 
Accountability Program. Last June, I announced the creation of a new 
Office of Accountability (OA) that has been integrated into MSHA's 
overall Accountability Program approach and associated Handbook. The 
purpose of this office is to increase focused oversight and examination 
of existing enforcement programs within the agency. This new division 
conducts oversight reviews, including in-mine inspections, to ensure 
that management controls are in place and fully implemented to maintain 
consistent and effective enforcement policies and procedures, and to 
ensure the implementation of actions recommended as a result of MSHA 
audits and internal reviews. The Director of this office reports 
directly to the Office of the Assistant Secretary.
    The Accountability Office has already audited MSHA oversight of 
five underground coal mines in five districts and three MNM mines in 
two districts. The mines are selected through an analysis of the 
enforcement data, trends of injuries and the rate of violations written 
per day per inspector.
    The audits focused on current ``in mine'' roof control conditions 
and plan adequacy, MINER Act ERP adequacy and enforcement of ERPs. On 
site inspection of self-contained self-rescuers (SCSR) maintenance and 
storage, and miner interviews about hands-on expectations training were 
conducted. Audit subjects included documentation of complete and 
thorough inspections of both underground and surface mines, and 
assessment of the level of enforcement and MSHA management oversight.
                            other rulemaking
    In addition to the rulemaking required by the MINER Act and the 
other safety enhancements mentioned above, MSHA also issued a final 
rule on Asbestos Exposure Limits on February 29, 2008. MSHA is also 
working on a final rule addressing Mine Rescue Team Equipment and Fire 
Extinguishers in Underground Coal Mines. In addition, MSHA is working 
on a proposed rule on the Prohibition of and Testing for the Use of or 
Impairment from Alcohol and Drugs by Miners Working in Coal and Metal 
and Nonmetal Surface and Underground Mines. Finally, in an important 
non-rulemaking action, MSHA issued a notice of a practical sampling 
strategy concerning enforcement of the diesel particulate matter (DPM) 
final exposure limit at metal and nonmetal mines on May 20, 2008.
    We have made significant changes and improvements to mine safety 
over the last 2 years. We look forward to continuing our efforts to 
bring about needed reforms at MSHA. Implementing provisions of the 
MINER Act and improving MSHA's effectiveness remain my top priorities.
    Thank you for inviting me to testify today. I look forward to 
answering your questions and to working with this committee to continue 
to improve mine safety.

    Senator Murray. Thank you very much.
    Mr. Kohler.


    Mr. Kohler. Good morning, Madam Chair and other members of 
the subcommittee. My name is Jeffery Kohler, and I am the 
Director of the NIOSH Office of Mine Safety and Health 
    I am pleased to be here today to report on NIOSH's progress 
under the MINER Act and the Emergency Supplemental 
Appropriations Acts of 2006 and 2007 which have provided 
funding to NIOSH to facilitate the development and diffusion of 
mine safety technology.
    To fulfill the mandates of this legislation, we have 
established an ongoing contracts and grants program and have 
made significant progress in the development of critical safety 
technologies for underground coal mine refuge alternatives, 
oxygen supply, and communications.
    NIOSH has completed research on testing the utility 
practicality, survivability and cost of refuge alternatives. 
This report, which has been submitted to Congress, concluded 
that refuge alternatives have the potential to save the lives 
of miners if they are part of a comprehensive escape and rescue 
plan and if appropriate training is provided.
    NIOSH has also made significant progress in the area of 
oxygen supply. The next generation self-contained self-rescuer 
has been developed and tested and 125 units are scheduled for 
delivery to NIOSH's Certification Laboratory later this summer. 
The manufacturer is estimating commercial availability around 
the first quarter of 2009.
    This new SCSR represents the first significant advancement 
of oxygen supply technology for mining in more than 30 years 
and it will not be the last.
    Significant progress is also being demonstrated in post-
accident communications. Although it is unlikely that any 
single system will meet the requirements for most mines, one or 
more technologies can be combined within a mine to ensure 
adequate post-accident coverage and functionality.
    Research results to date strongly indicate that the 
building blocks for achieving survivable post-accident 
communication systems will be available for implementation by 
June 2009. This building block approach, as presented in the 
NIOSH Communications Roadmap, will also serve as a platform on 
which future advancements in technology can be added.
    Now I would like to highlight three examples of progress in 
post-accident communications. First, we have funded the 
development of an enhanced leaky feeder system which allows 
continued communications, even in the event that a system, a 
section of the system has been damaged. MSHA permissibility 
approvals have been granted and a mine-wide system is being 
installed in the Loveridge Mine in West Virginia, and I will be 
pleased to invite members and staff to attend an in-mine 
demonstration of this system which is planned for next month.
    Second, we are developing a survivable mesh-based system 
and an evaluation of the prototype system at the Sentinel Mine 
is scheduled for the end of this month. The system incorporates 
a variety of design features to provide a high level of 
survivability in an underground coal mining environment. MSHA 
is currently working with the manufacturer in the approval 
process of this system.
    Third, NIOSH is working with the U.S. Army to modify the 
Kutta system, a wireless communications system originally 
developed for the military that has enormous potential as a 
post-disaster communications system in mines. Once the 
modifications are complete, the system will allow underground 
miners to communicate with each other independent of the 
infrastructure as well as to the surface under post-accident 
    In the fiscal year 2008 Appropriations bill, NIOSH was 
directed to conduct a study on the recovery of coal pillars 
through retreat room and pillar mining practices under deep 
cover and to submit a report on the study findings to Congress 
within 2 years. We initiated that project in January and we are 
collaborating with MSHA, West Virginia University and the 
University of Utah in our research efforts.
    Funding was also provided to restore projects focused on 
other critical mining safety and health problems, including 
respirable dust control, ground control, and explosion 
prevention. Methane and coal dust explosions are under 
investigation at our Lakeland Experimental Mine as we seek 
improved methods and technologies to prevent or mitigate these 
potentially catastrophic events. These projects are developing 
a range of engineering, training and technology interventions.
    In conclusion, I'd like to say, the MINER Act and 
Supplemental funding 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 critical areas identified by Congress and mining 
stakeholders. NIOSH appreciates the opportunity to present its 
work to you and thanks you for your continued support.
    I am pleased to answer any questions that you may have.
    [The prepared statement of Mr. Kohler follows:]
              Prepared Statement of Jeffery Kohler, Ph.D.
    Good morning Madam Chair and other distinguished members of the 
subcommittee. My name is Jeffery Kohler and I am the Associate Director 
for Mine 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 report on NIOSH's progress under 
the Mine Improvement and New Emergency Response Act of 2006 (MINER Act) 
(P.L. 109-236) and the related supplemental appropriations that 
Congress provided to facilitate the development and diffusion of 
critical safety technologies in underground coal mines. In previous 
hearings and briefings we have discussed the challenges of bringing 
improved communications, tracking, oxygen supply, and other 
technologies to bear on improved mine safety. On March 14, 2008, I met 
with Richard Stickler, Acting Assistant Secretary for Mine Safety and 
Health, and we agreed to develop guidance that can be provided to the 
mining community by January 2009 on performance-based criteria for 
acceptable communications technological alternatives. Today, I would 
like to focus on our progress and the new technologies that NIOSH has 
developed to make mines safer, and better equip miners to safely escape 
from a fire, explosion, or other catastrophic event.
                   niosh mandates under the miner act
Office of Mine Safety and Health
    NIOSH has completed or implemented all of its mandates under the 
MINER Act. Specifically, we have established the Office of Mine Safety 
and Health Research as required by section 6(A)(H). As authorized by 
the act, the Office is strengthening NIOSH's focus on evaluating safety 
and health technologies, while maintaining a balanced research program 
to address overall mine safety and health issues.
Research Contracts
    We have established an on-going contracts and grants program to 
fund the development and adaptation of safety technologies for mining 
applications, as mandated in section 6 of the Act. Under this program 
we have evaluated 62 proposals, and of those, 13 were of sufficient 
merit to warrant funding under the guidelines of this program, and we 
are excited about their prospects. Two examples are:

     the development of a spray-on liner to significantly 
strengthen mine seals, a process that is being adapted from a current 
military application; and
     the development of a through-the-earth \1\ two-way voice 
communications system, which is based on a technology developed by the 
    \1\ A ``through-the-earth'' communications system is one with a 
signal that propagates through the layers of the earth between an 
underground transceiver and a transceiver on the surface.
Interagency Working Group
    We established an on-going Interagency Working Group consisting of 
a broad range of Federal agencies with an interest in technology, as 
directed by section 6 (a)(h)(3)(C) of the MINER Act. Although no 
technologies have been identified for direct transfer to mining, 
several benefits of this collaboration among Federal agencies are 
occurring. Notable examples included the following:

     NASA and the Naval Research Lab have provided valuable 
input into our work on refuge chambers;
     the U.S. Army Communications-Electronics Research, 
Development and Engineering Center (CERDEC) is working with us on 
adapting communications and tracking technologies; and
     we are working with the Department of Energy's geothermal 
research program at Sandia National Lab to examine the possible 
adaptation of rescue drilling technology.
Refuge Alternatives
    We completed research and testing on refuge alternatives, and 
submitted a report to the Senate Committee on Health, Education, Labor, 
and Pensions and the House Committee on Education and Labor addressing 
the utility, practicality, survivability and cost of refuge 
alternatives. We also conducted testing on refuge chambers at our Lake 
Lynn Experimental Mine. This report to the two committees provides a 
scientific basis for the Mine Safety and Health Administration (MSHA) 
on the use of refuge alternatives in underground coal mines. The report 
concluded that refuge alternatives have the potential for saving the 
lives of mine workers if they are part of a comprehensive escape and 
rescue plan, and if appropriate training is provided. Moreover, the 
report stated that the benefits of refuge alternatives and the 
specification of specific alternatives are sufficiently known to merit 
their commercialization and deployment in underground coal mines. We 
are continuing to work with MSHA, labor, industry, and manufacturers to 
facilitate the implementation of refuge alternatives in the underground 
coal industry.
                 emergency supplemental appropriations
    The Emergency Supplemental Appropriations Act (ESA) for Defense, 
the Global War on Terror, and Hurricane Recovery, 2006 (P.L. 109-234) 
($10 million) and the Emergency Supplemental Appropriations Act for 
U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007 (P.L. 110-28) ($13 million) 
provided a total of $23 million to NIOSH to facilitate the development 
and diffusion of mine safety technology, including necessary repairs 
and improvements to leased laboratories, among other purposes. To 
fulfill the mandates of the ESAs and the MINER Act, we have designed 
research across several related but different tracks, and administered 
contracts and awarded funds to outside partners with resources and 
expertise that complement ours. We have moved ahead with a sense of 
urgency while doing everything we can to assure high-quality research. 
Moreover, to ensure success, we have applied our scientific know-how 
and our detailed knowledge of the underground mine environment, and 
persistence in working through the technical questions that always 
arise in scientific studies. Now, less than 2 years into this 3-year 
effort, we are able to report significant progress, which will ensure 
that improved technologies will be available as intended by Congress. 
Notable accomplishments-to-date are summarized as follows.
Oxygen Supply
    NIOSH developed the conceptual design for the ``next generation'' 
self-contained self rescuer (SCSR), which was developed and tested 
under NIOSH's research contracts program. The contractor is scheduled 
to deliver 125 units to NIOSH's certification laboratory late this 
summer. The manufacturer is estimating commercial availability in the 
fourth quarter of 2008 or the first quarter of 2009, with a first year 
production capacity of between 2,000 and 4,000 units. This new SCSR 
represents the first significant advance in oxygen supply technology in 
more than 30 years. Although this unit provides performance 
enhancements over current models, the significant advancement is that 
it is ``dockable.'' As such, fresh oxygen canisters can be easily 
exchanged without the need to don a new mouth piece and nose clip. This 
feature eliminates the dangerous act of attempting to don a fresh SCSR 
under very stressful conditions in a potentially poisonous environment.
Post-Accident Communications Technology
    Research results to date strongly indicate that the technological 
building blocks for achieving survivable post-accident communications 
systems for most mines will be available for implementation by June 
2009, as required by the MINER Act. Although it is unlikely that any 
single system or technology will meet the requirements for most mines, 
a combination of technologies in any given mine should ensure adequate 
post-accident coverage and functionality. Moreover, this ``building 
block'' approach, as presented in the NIOSH communications roadmap, 
will serve as a platform on which future advancements in technology can 
be added.
    NIOSH work to date indicates that the emergency communication plan 
for each mine will need to be tailored to that mine's requirements, and 
it is likely that the plan will employ some combination of enhanced 
leaky feeder, mesh, and/or medium frequency wireless systems. The post-
accident coverage and functionality provided by these systems could be 
further enhanced as technology permits with the addition of through-
the-earth two-way voice systems, interoperability of systems for 
increased redundancy, and improved methods for protecting the 
communications infrastructure from damage. These enhancements are not 
currently available, but could become available over the next few 
years. However, significant progress is already being demonstrated in 
the area of post-accident communications, and much of this progress was 
facilitated by the funds provided through the supplemental 
appropriations. Three significant examples are provided below.
Leaky Feeder System
    Under contract to NIOSH, an enhanced leaky feeder system has been 
developed, which allows continued communications even in the event that 
a section of the system is damaged or destroyed. This system is 
compliant with MSHA permissibility requirements, and final approval is 
pending. A mine-wide demonstration system is being installed in the 
Loveridge Mine in West Virginia. The system includes bi-directional 
redundancy in the main haulage areas and parallel leaky feeder systems 
in the working sections to ensure a very high level of survivability in 
the event of mine explosions. Backup battery power systems that can 
keep the system operational from 8 to 96 hours after a power failure 
are included in the design as well.
    We have also evaluated methods to expand coverage throughout the 
mine, and to physically harden the system against explosive forces. 
Testing to date has shown that burying leaky feeder cable may be an 
effective way of preventing leaky feeder cable from being damaged. Such 
extreme measures of protection may be desired in potentially vulnerable 
locations such as those adjacent to sealed areas of the mine.
Mesh System
    Under another contract we are developing a survivable mesh-based 
system, \2\ and we are scheduled to evaluate a prototype system at the 
Sentinel mine at the end of this month. The system incorporates a 
variety of design features to provide a high level of survivability in 
an underground coal mining environment, and the initial system design 
has been submitted to MSHA for approval.
    \2\ A mesh-based system uses a network of wireless modems (called 
nodes) that are placed throughout a mine. The signal ``hops'' from node 
to node, permitting two-way communication to be sent and received. In 
the event of a mine accident, if one or more nodes fail, the network 
can reconfigure itself and create a new path for communication signals 
using nodes that are still functional.
    The survivability of a mesh system is highly dependent on the range 
of the mesh nodes and the ability of the system to reconfigure itself 
under the circumstances that might be required in a mine disaster. The 
NIOSH mesh development is intended to maximize the survivability of the 
system by ensuring that:

     the nodes have maximum range for a given amount of 
transmit power, thus minimizing the number of nodes, power supplies, 
and batteries required;
     the system can automatically support alternate 
communications paths;
     the handsets can support direct communications between 
them (known as ``peer to peer'' communications);
     the handsets can act as repeaters for communications to 
mesh nodes; and
     the system uses low-bit-rate voice communications for 
future interoperability with medium frequency or through-the-earth 

    We are working with MSHA and other stakeholders to examine 
potential safety issues associated with battery backup supplies that 
will be required with post-accident communication systems.
Medium Frequency System
    NIOSH is working with the U.S. Army CERDEC to modify the Kutta 
medium frequency communications system for use in underground coal 
mines. Medium frequency systems have an enormous potential as emergency 
communications systems in a post-disaster scenario. We have 
demonstrated that medium frequency radios have a range in underground 
coal mines of over 2 miles through ``parasitic propagation.'' This is a 
characteristic of the radio energy that allows the energy to couple on 
to metallic structures in the mine, and be received anywhere along the 
path of the structure.
    There are several advantages of the medium frequency systems. 
First, active radio elements (radio transmitters or amplifiers) can be 
spaced a mile or more apart, which means far fewer active elements than 
are required with leaky feeder or mesh systems thereby reducing 
potentially vulnerable infrastructure. Second, the parasitic radio 
propagation paths can be highly survivable, and do not require power. 
Power lines for instance may be damaged, but could still support medium 
frequency communications. Additionally, recent NIOSH tests have shown 
that a buried wire can provide an excellent propagation path with no 
observable degradation of the radio signal. Lastly, the medium 
frequency system is being designed to be interoperable with existing 
MSHA-approved UHF/VHF handsets that are used with leaky feeder systems; 
this will provide substantial flexibility in designing practical and 
cost-effective systems. Interoperability with future systems such as 
mesh systems and through-the-earth systems will be considered as these 
products become available in the market place.
    Initial pre-production models of the analog point-to-point medium 
frequency products will be received this month, and the delivery of the 
digital multi-hop products are expected in August. The system design 
has been submitted to MSHA for approval.
Technical Study Panel
    We participated in the Technical Study Panel on the Utilization of 
Belt Air and the Composition and Fire Retardant Properties of Belt 
Materials in Underground Coal Mining, as directed by Section 11(A) of 
the Act. This Panel was administered by MSHA, and NIOSH provided 
technical support. The Study Panel's report recommended additional 
research in the areas of development of guidelines for improved 
escapeway design in various ventilation situations, ways to reduce air 
leakage through ventilation controls and use of booster fans in 
underground coal mining operations. We have initiated a project to 
address these knowledge gaps identified by the Panel, and expect to 
have results over the next few years.
             fiscal year 2008 appropriations act activities
    NIOSH has been directed to conduct a study on the recovery of coal 
pillars through retreat room and pillar mining practices in underground 
coal mines at depths greater than 1,500 feet, and to submit a report on 
the study findings to Congress within 2 years. We initiated this 
project in January, and are making progress. Two scoping meetings have 
been held with researchers from West Virginia University and the 
University of Utah. MSHA Tech Support is collaborating with us, and we 
have had technical meetings with them. Last month, NIOSH researchers 
made underground mine visits to collect information for use on this 
    Funding provided as part of the fiscal year 2008 appropriation is 
also being used to restore projects focused on other critical mining 
safety and health problems, including respirable dust control, ground 
control, and explosion prevention. Methane and coal dust explosions are 
under investigation at our Lake Lynn Experimental Mine, as we seek 
improved methods and technologies to prevent or mitigate these 
potentially catastrophic events. Many of these projects are developing 
a range of interventions including engineering, training, and 
    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 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, Mr. Kohler.
    Mr. Stickler, the mine safety standards that we passed here 
in Congress are only going to make miners safer if MSHA 
vigorously implements them and I recognize, as you stated 
today, that MSHA has made some progress in implementing the 
MINER Act, but there have been serious questions raised about 
the competence of MSHA to really effectively carry out its 
    We learned in February, for example, that thousands of 
violations were never assessed a penalty and that failure has 
given some of our mine operators with serious safety problems 
essentially a free pass, even in fatality cases.
    The Inspector General recently revealed that MSHA has not 
been conducting all the required safety inspections in 
underground coal mines. A recent GAO report found problems with 
the implementation of the MINER Act. The guidance that is 
provided to mine operators in emergency response plans, they 
said, the requirements were too vague, the approval of the 
plans was delayed, and different districts were applying 
different standards. That was the GAO.
    And significantly, the HELP Committee's investigation of 
the Crandall Canyon disaster brought to light some really 
serious weaknesses in MSHA's ability to protect miners from 
even the most dangerous and ill-conceived plans.
    So this morning, you've come before us, you've talked a lot 
about the new regulations that MSHA has issued to the MINER 
Act, but given MSHA's performance and some of these reports and 
indications, I'm concerned about how these new regulations will 
be implemented and how they will be enforced.
    Can you give us as a committee some assurance that we're 
going to have more aggressive performance from the MSHA?
    Mr. Stickler. Senator, we've made significant improvement 
in all those areas you mentioned. We have implemented the 
recommendations and those that we have not yet implemented, we 
have an action plan and target dates, milestones to bring about 
that implementation.
    For example, as I mentioned earlier, we've completely re-
engineered the ground control approval review and approval 
process. We sent out directives to our district managers giving 
guidance on which ground control plans will be required to be 
sent to Tech Support for additional review.
    We've developed national checklists that covers every 
specific item that should be included in the ground control 
plan. The reviewers will be required to check those items off 
and sign the checklist. That will progress through the approval 
process and each person that reviews will be required to sign 
off and date the checklist.
    The checklist includes all of the specific items that are 
included in the Federal regulations as well as best practices 
for having the very best ground control plans. There are 
separate checklists for different parts of the ground control 
plan, whether it be a retreat mining plan or a deep cut plan 
and so forth and so on.
    In the area of inspections, as I mentioned, last October we 
implemented a plan that would guarantee that we make 100 
percent of our required inspections.
    Senator Murray. Are you following that plan?
    Mr. Stickler. Since that time, we have worked approximately 
30,000 man hours per quarter. We have completed all of the 
required inspections to date and we're on track to complete the 
year with 100 percent of our inspections which will be the 
first time in the history of the agency that 100 percent of the 
inspections have been completed.
    Senator Murray. Well, OK. In November 2007, you announced 
the establishment of what you call the Office of Accountability 
to provide some better focus and oversight. Has that helped 
your performance?
    I'm particularly interested, in fact, in the impact it had 
on correcting the problems the GAO found in its April report 
with the emergency response plans.
    Mr. Stickler. Yes, we've filled the position as Director of 
the Office of Accountability in November and added two 
additional staff to that office. Those individuals have been 
conducting audits across the country. They generally spend 1 
week out in the field doing audits and a week back in the 
office writing their report and doing data mining to identify 
where they should conduct their audits.
    Senator Murray. Are those reports that go on a shelf or 
what do you do with them?
    Mr. Stickler. Those reports are issued to all the 
responsible levels of management, from myself down through the 
Deputy Assistant Secretary, the Administrator for Coal Mine 
Health and Safety or for Metal/Non-Metal, and the district 
managers. They're available for anyone to review.
    There's an action plan developed to address the 
deficiencies that the Office of Accountability identifies. We 
maintain a spreadsheet on our computer system where the people 
responsible for making those corrective actions go into the 
computer system and log in the action that they've taken, the 
date that they've completed it. That's maintained on a computer 
server in our national office and many of the managers review 
that on a regular basis to stay up to date and make sure that 
corrective actions are being implemented.
    We also plan to do follow-up mini audits where we found 
deficiencies. The Office of Accountability will go back and 
make mini audits to check specifically on those things that the 
districts have said they have improved.
    Senator Murray. So they're taken with seriousness?
    Mr. Stickler. Yes, they absolutely are.
    Senator Murray. OK. I am out of time for the moment, and I 
will turn to Senator Isakson.
    Senator Isakson. Mr. Stickler, I want to, first of all, 
echo one of the things from your testimony about the 
coordination and accountability and work you're doing with your 
    I personally had issue with Georgia and worked with you 
recently and have seen a great attention to consistency within 
the inspectors, communication between the inspectors and 
replacements as you have those that are lost.
    I want to commend you on what you're doing on that and 
those personnel.
    In the Office of Inspector General's report following the 
Crandall Canyon incident, the Office of Inspector General 
judged your agency to be, and I put this in quotes, 
``negligent.'' Do you have a response to that?
    Mr. Stickler. Well, we don't believe that the deficiencies 
that were included and spelled out in the Office of Inspector 
General's report rise to the level of negligence.
    Many of the criticisms that the report had for MSHA related 
to items that had not been established in the past as practices 
or procedures. For example, we were criticized for not checking 
with the Bureau of Land Management and there's never been a 
policy or procedure to do that.
    We were criticized for not checking with seismologists on 
the seismic activity and again there was no policy or procedure 
to do that in the past.
    So some of the things that the Inspector General 
recommended--if those standards had been established and our 
inspectors and our staff had not been following the standards, 
then I think it would be appropriate to say that we were 
negligent, but whenever you hold people to a standard that 
hasn't been communicated to them--it has not been a practice in 
the past.
    The procedures that MSHA has followed for approving, 
reviewing and approving ground control plans has evolved over 
the last 30 years, and as we've seen the need to upgrade and 
refine those plans, that's been done.
    Now certainly, after the Crandall Canyon tragedy, we 
recognized that we should improve our review and the 
documentation of that review and we've taken action to bring 
that about.
    Senator Isakson. Thank you. Mr. Kohler, in all my 30 years 
in public office, I don't know anything that's had a more 
profound effect on me than the day I went to the Sago Mine with 
Senator Kennedy, Senator Enzi, and Senator Rockefeller and 
visited with the families of the miners that were lost. So I've 
taken a particular interest in that particular incident and the 
things that tragically happened there.
    In your testimony and talking about the SCSRs, it seems 
like that addresses one of the major shortcomings in terms of 
these self-rescuers and it's a great improvement. As I remember 
from Sago, the oxygen self-rescuers they had at the time were 
limited to like an hour or two.
    Can you tell me about this new development and the dockable 
system as to what time would be available now?
    Mr. Kohler. Sure. You know, there are two major 
improvements, I think, that show up in this new generation.
    Most important is the dockable and what that really means 
is that you can cache spare canisters and you can pop the 
canister into the unit without having to undo the mouthpiece or 
the nose clip and that's a very dangerous operation if you 
switch SCSRs to take one mouthpiece out, open up a canister, 
put another one in. So this eliminates that and that 
effectively means that you can store these things and you can 
have them available.
    Second, there are certain performance enhancements. The 
bottled oxygen rather than the chemical-bed generation which 
will probably provide increased functionality for the person 
using it.
    I think in total, the dockable SCSR is really a tremendous 
advancement over the existing SCSR.
    Senator Isakson. And it's now been approved and ready for 
production, is that not correct?
    Mr. Kohler. It has not been officially certified. The 125 
units will be delivered later this summer to the Certification 
Lab where they will have to pass NIOSH's official certification 
    The prototype units were delivered and they passed the 
test, so we would expect these to do so as well, but until that 
happens they're not certified for use.
    Senator Isakson. Second major problem at the Sago Mine 
disaster was the inability to communicate post-accident, and 
you recite three technologies that you're working on and refer 
to a demonstration at the Loveridge Mine next month?
    Mr. Kohler. Yes.
    Senator Isakson. Let us know when that demonstration is. I 
don't know whether Senator Murray would like to, but if we 
could make it work, I would like to see.
    Is it the leaky feeder system? Is that what you're going to 
    Mr. Kohler. Yes, and also our hope is to have one or more 
other technologies there to show as well.
    Loveridge is actually the test bed for the full leaky 
feeder system, but we hope to demonstrate perhaps a portion of 
the Kutta system or the medium frequency system there as well.
    Senator Isakson. Well, if that test proves successful and 
implementation takes place, then what you've done on the self-
rescuers and communication as a reaction to the MINER Act and 
the Sago Mine will move us light years ahead from where we were 
in terms of mine safety for miners. I commend you.
    Mr. Kohler. Thank you.
    Senator Murray. Senator Rockefeller has joined us and we 
appreciate all the work you've done on this issue. Welcome.

                    Statement of Senator Rockefeller

    Senator Rockefeller. Well, I'm obviously very grateful, 
Madam Chairman, to you and to Senator Isakson and Senator 
Kennedy and former Chairman Enzi, who've allowed me to be here, 
and even more importantly in the case of Senator Isakson 
sitting here this morning, who came to Sago and probably could 
walk all over me for the U.S. Senate. He was so popular with 
the coal miners, and even though Georgia doesn't have any coal, 
there was something about his approach and Michael Enzi's 
approach, which he does have a lot of coal, which they locked 
in on the West Virginia Sago situation. A very, very sad 
situation, something I'll never forget, and he knows that very 
    One of the things that was discussed in the plan, was the 
emergency response plan, which was wireless communications and 
I'm not sure where that stands, but I have this feeling that 
it's not going to be ready for 2009, and I have two questions 
regarding that.
    One is that the mining folks will probably say, ``well, 
they don't want to use it because something will come along''--
if you come up with something, if you have, that something will 
come along in a couple years which will be better and therefore 
they'll have to switch to that and it will be very expensive, 
all of which I consider to be irrelevant.
    I mean, then-Chairman Enzi said this is going to be a 
continuing series of obligations in mine safety and I agree 
with him on that.
    So I want to know what the situation is on wireless 
communications so miners can be tracked underground, and also 
have you or NIOSH or anybody else gone to the private sector, 
which we talked about at the last hearing I was at somewhat 
extensively; that is, to use either military or other 
technology that might be available or might be in the offing. 
That strikes me as just an incredibly important thing to do and 
I don't know if it's being done or not.
    Mr. Stickler. Well, I can address what we've done to date. 
As you know, the MINER Act requires that mine operators install 
a redundant communication system that is at least as effective 
as the telephone and I'm happy to report that all mine 
operators have installed those systems and where they did not, 
we issued violations to require the redundant systems to be 
    Senator Rockefeller. Are they wireless?
    Mr. Stickler. No, sir. The MINER Act specifies those would 
be as effective as a telephone.
    Now as far as the wireless--
    Senator Rockefeller. I need to understand that better 
because telephones are, even in office buildings such as this, 
placed at various places and not necessarily available or 
visually available if there's a lot of smoke around. I mean, 
the wireless was meant to relieve that because it would just be 
between the miner and somebody on top. So what is the 
    Mr. Stickler. Well, that's--sir, that's what the MINER Act 
    Senator Rockefeller. Is that----
    Mr. Stickler. And that's to be in place by June 2009. The 
MINER Act requires that by June 2009, mine operators will be 
required to have a plan to install two-way wireless 
    Senator Rockefeller. OK. So we're on the----
    Mr. Stickler. Congress was wise to recognize that that 
technology may not be available by June 2009 and included in 
the MINER Act a fallback provision that if the wireless 
communication is not available, then mine operators will be 
required to install the next best thing.
    Senator Rockefeller. OK. I understand.
    I understand you and I want to be--have you answered my 
question. Agreeing then that the telephone would last until 
2009, it's not very far off--is NIOSH--are you or is anybody 
reaching outside to try and get this wireless technology? 
What's the state of the wireless?
    Mr. Kohler. We have a very robust program.
    Senator Rockefeller. Any time somebody has a robust 
program, I automatically grow negative. So use a different word 
and explain it to me.
    Mr. Kohler. OK. Fair enough. We have a program reaching out 
to all branches of the military, NASA, the private sector, and 
through that program, we have identified a number of candidate 
technologies and two or three of those are being developed to 
the prototype stage.
    For example, the medium frequency system, the so-called 
Kutta system, that may be demonstrated at the Loveridge Mine 
the same time the leaky feeder is demonstrated, that is a 
military system, a system that was developed for the military, 
and we're adapting it to the mining environment.
    Likewise taking off the shelf technologies that are already 
available and enhancing them, improving their functionality so 
that they can withstand an explosion or improving the chances 
that those systems used in combination with other systems could 
also survive and be used in a post-accident mode. That has 
really been our approach, which is to try and build on 
platforms that already exist rather than completely throw 
everything out that's been learned in civilian and military 
applications and start over.
    Senator Rockefeller. OK. My time is up. I'll continue in 
the next round.
    Thank you, Madam Chairman.
    Senator Murray. Thank you very much, Senator Rockefeller.
    Senator Allard.
    Senator Allard. Thank you, Madam Chairman. I have a number 
of questions, but I thought, first, I would start out in 
Colorado. It has been over 10 years that we had a mine safety 
inspection office in Colorado that was to cover the Western 
part of the United States and that was closed.
    Would it be of benefit to re-open a Western office of some 
type? I think they thought at the time that they transferred 
those Western mine experts to a West Virginia facility but they 
did not transfer. I think that was their own personal decision 
not to move.
    So how are we as far as meeting the rules and regulations 
as they apply to Western mines?
    Mr. Stickler. In regard to the Denver office, we have a 
district office located in Denver, CO, that's responsible for 
all coal mining activity west of the Mississippi River, and I 
think you were probably referring to the Tech Support Office 
that MSHA had----
    Senator Allard. Yes.
    Mr. Stickler [continuing]. In Denver and that was closed, I 
believe, in 1997. There were close to 40 technical experts that 
worked there out of that office and you're right, the majority 
of those individuals did not elect to transfer to the facility 
in Pittsburgh or West Virginia. Many of them left MSHA, went 
into other industries, went into the mining industry. Some of 
them transferred to our Enforcement Office there in Denver.
    But there is a shortage of technical expertise in the area 
of ground control, in rock mechanics. We have recently been 
advertising to fill jobs in our Pittsburgh Tech Support Group. 
We're unable to find individuals that are qualified. I've given 
approval to advertise out in specifically the Denver, CO area, 
hoping that we could attract someone from industry or from the 
community in that area that would perhaps not want to transfer 
to Pittsburgh but would come to work for us there.
    So we are working to increase our technical expertise by 
expanding the number of ground control engineers. As we require 
more of these plans, as I mentioned earlier, we put out a 
directive to our district managers identifying ground control 
plans in areas where we've identified or they have bump-prone 
conditions or they're doing retreat mining in cover exceeding a 
thousand feet. That guidance will result in more plans now 
being sent to our technical experts in Pittsburgh and we're 
going to need to increase the number of people we have there to 
handle those plans.
    Senator Allard. OK. I also was reviewing on the Internet 
the expectmore.gov, which is a GAO evaluation of your 
performance and results. I did make a note on when they asked 
the question, is the program generally inadequate. They 
classify you as adequate which is fine, but is the program 
designed free of major flaws that would limit the program's 
effectiveness and efficiency? The answer to that was no. They 
explained the fact that your requirement having to inspect 
above surface mines twice a year and below surface mines four 
times a year has prevented you from having the flexibility you 
need so that when you have a troubled mine that you can either 
have more frequent inspections, like was mentioned earlier, I 
think, by one of the members here on the panel, that you 
weren't able to respond to that.
    You want to comment on that?
    Mr. Stickler. Well, as I mentioned earlier, the plan that 
our Administrator for Coal Mine Health and Safety developed to 
ensure that all of the mines are inspected 100 percent of the 
time requires a significant amount of overtime and I thank 
Senator Byrd and Congress for providing additional funds. It 
was approximately $10 million provided in the 2008 budget to 
cover the overtime and the travel expenses to move inspectors 
around so that we can complete the inspections 100 percent of 
the time.
    Also, we have hired 322 new coal mine enforcement 
personnel. As they move through the training program, it takes 
approximately 18 months for them to complete their training, 
but since we've started that program, we've graduated 63 new 
inspectors that are out in the field conducting inspections.
    This summer, we have five classes that will be graduating. 
That will be approximately another 70 inspectors that will be 
going into the field and certainly as we bring these new 
inspectors through their training, it's going to take some of 
the pressure off. We can reduce the overtime. By the end of 
this year, I expect we can eliminate the overtime and 
additional travel expense, and certainly it will give us 
resources to focus on addressing some other areas.
    Senator Allard. You also, on the analysis, felt that you 
couldn't do a cost-benefit analysis because of a court decision 
that was made, although the GAO felt that the court decision 
didn't necessarily prohibit you from doing a cost analysis. You 
want to explain your position on that?
    Mr. Stickler. I'm at a loss at what you mean.
    Senator Allard. Well, there was a court decision where on 
one of the questions they asked you about cost-benefit 
analyses. The court decision in the explanation from your 
agency was that it prohibited you from doing a cost-benefit 
    Mr. Stickler. Is this a GAO report that you're referring 
    Senator Allard. It is.
    Mr. Stickler. That must have been before I joined the 
agency because----
    Senator Allard. OK.
    Mr. Stickler [continuing]. There's been no activity in that 
area with the GAO since I've joined MSHA, and I'm unfamiliar 
with it.
    Senator Allard. Are you comfortable with your cost-benefit 
    Mr. Stickler. It's a lot of work. I'd say that.
    Senator Allard. I understand that, but are you getting the 
job done on cost-benefit analysis?
    Mr. Stickler. At the end of the day, we do, but like I 
said, it takes a lot of resources and it's a difficult process.
    Senator Allard. Yes. I did pick that up in there. OK. What 
I'd like to do is submit a question to you on that and we will 
get a little more detail for you so you can answer the 
    Thank you.
    Senator Murray. Thank you very much, Senator Allard, and we 
look forward to the written response on that.
    I want to go back to this wireless communications because 
the MINER Act requires wireless post-accident communications 
and tracking by June 2009. You've alluded to that several 
    We're hearing mixed messages about the approval of a 
wireless communication system and what that means because what 
we've seen so far relies on a network of hardware inside the 
    Let me start with you, Mr. Stickler. How does MSHA define 
    Mr. Stickler. We define wireless as a system that would 
survive any type of event underground, whether it be an 
inundation of water or methane gas explosion or mountain bump 
like you had at Crandall Canyon.
    Now in my view, communication systems will not be available 
to meet that definition and the MINER Act provides a fallback 
approach which will require mine operators to install 
communication systems that best meet the intent----
    Senator Murray. Right.
    Mr. Stickler [continuing]. If that definition, and as Dr. 
Kohler has mentioned, there's been development with several 
systems that I am quite sure will provide that type of 
communication and at that----
    Senator Murray. OK. I want to----
    Mr. Stickler [continuing]. Time, MSHA will require 
operators to install those systems.
    Senator Murray. So you're waiting to see what Mr. Kohler 
    Mr. Stickler. No, we're not waiting. We're working 
together. I've met with Dr. Kohler and we formed a team of 
engineers from MSHA and NIOSH to work together cooperatively to 
establish a performance criteria to identify the best 
technology to meet the two-way wireless communication 
    Senator Murray. Let me ask----
    Mr. Stickler. We'd like to have that done by January and 
send that out to the industry.
    Senator Murray. OK. Dr. Kohler, how do you define wireless?
    Mr. Kohler. Well, from the start, we took a more technical 
definition and in the global telecommunications industry, they 
recognize that all systems have some infrastructure and 
wireless is taken to mean that the user is not connected by 
wire to the infrastructure.
    So for example, when you use your cellular telephone, 
that's a wireless device in that you're not hardwired into the 
network, but yet your signal goes to a tower or another unit 
which is then hard wired and there's a network.
    So most of these systems in most cases require some 
hardwired infrastructure.
    Senator Murray. And this leaky feeder system that you're 
talking about----
    Mr. Kohler. Is a perfect example of that. It has a 
hardwired component, an infrastructure in the mine, but the 
miner is not tethered to that system. The miner has a wireless 
radio and the miner can communicate with that system.
    The medium frequency system, for example, requires some 
sort of conduction path. It could be water pipe, it could be a 
buried wire, it could be structure, but it also requires a 
    Our approach has been really very goal-oriented; that is, 
we want to have post-accident communication which is likely to 
work in most mines for most disasters, not for every single one 
that you could imagine but to do whatever we can for the most 
people by June 2009.
    Senator Murray. OK. And you're testing this next month?
    Mr. Kohler. We've already tested these systems and we're 
now installing a full-scale system.
    Senator Murray. OK. And Mr. Stickler, if they begin to 
install this, are you going to require it by June 2009 to move 
to that kind of system?
    Mr. Stickler. The MINER Act requires that by June 2009, 
mine operators have to have included in their emergency 
response plan a description of the system that they intend to 
install and we will enforce that provision of the MINER Act.
    Senator Murray. OK. Let me go to a different topic, Mr. 
Stickler, because at Crandall Canyon, MSHA, as you will well 
remember, was criticized for allowing the mine owner, Bob 
Murray, to provide families and the public with inaccurate 
information which was not good and I think we all remember that 
    Do you think that MSHA has fully complied with its charge 
to be the primary communicator now?
    Mr. Stickler. I believe we have.
    Senator Murray. Well, can you tell us what changes MSHA has 
made since the Crandall Canyon disaster to improve the 
communications and define that for us?
    Mr. Stickler. Well, toward the end of 2006, we established 
guidance on family liaisons and the primary communicator and we 
have trained 21 of MSHA's employees to serve as family liaisons 
and they're scattered across the country and if we have a 
situation like Crandall Canyon, we bring people in that can 
serve as family liaisons.
    Senator Murray. Does that define who will be talking to the 
families, who will be talking to the media?
    Mr. Stickler. The family liaisons, they will be with the 
families 24 hours a day, 7 days a week, throughout the entire 
process. They also maintain communication with the families 
during the investigation process to keep the families up to 
date during our--
    Senator Murray. Well, let me ask it in a different way. If 
there were to be a mine disaster this afternoon, do we have in 
place where every mine knows who's going to be talking to the 
families and who's going to be talking to the media and the 
rest of the country? Is that clear?
    Mr. Stickler. We have in place the MSHA personnel that will 
serve those roles.
    Senator Murray. Senator Isakson.
    Senator Isakson. Just one question, Dr. Kohler. Referring 
to what Senator Rockefeller and Senator Murray talked about on 
the wireless, it seems to me like in my definition, the 
multifrequency system is a wireless system, right?
    Mr. Kohler. Yes.
    Senator Isakson. I mean, you have--it's wireless in the 
sense there's no wire attached to the radio?
    Mr. Kohler. Right.
    Senator Isakson. This parasitic propagation term that you 
used, I'm not familiar with that, but I think it means that it 
has to be able to send that signal and attach it every now and 
then to a wire or to some metallic instrument in the mine, is 
that correct?
    Mr. Kohler. That's correct, and it's really, we believe, 
for most of the mining operations, this combination of 
technologies which will ensure a pretty high degree of 
reliability in post-accident communication.
    If one portion of the system fails, there will be this 
second system or second path that the signals can use to get 
out of the mine and in many cases, we see a combined role for 
mesh systems, leaky feeder systems, and medium frequency.
    We're also supporting the development of through the earth 
two-way systems and doing testing of those but they're probably 
a little bit beyond June, but we see this as June 2009 to get a 
dramatic increase in post-accident functionality and then we 
have a platform that we can keep building on to to get to the 
point where we all want to be with this wireless communication.
    Senator Isakson. Well, on the medium frequency system, in 
the testimony, you say that the analog pre-production product's 
going to be available this month and the digital in August.
    Mr. Kohler. Yes. And that's for testing, for taking into 
the mines, seeing how well it works, shaking it down.
    Senator Isakson. And MSHA's--it's been submitted to MSHA 
for their approval already and they're going to do the testing, 
    Mr. Kohler. They do permissibility testing, whereas when we 
do our testing in this context, we're interested in how well 
does it actually work. Is it a practical communication device? 
Can we count on it and so on?
    Senator Isakson. Mr. Stickler, is there an estimated 
timeframe it would take to do that testing?
    Mr. Stickler. Which system are you specifically----
    Senator Isakson. Medium frequency system.
    Mr. Stickler. I don't have the date on when that will be 
    Senator Isakson. Thank you very much.
    Senator Murray. Senator Rockefeller.
    Senator Rockefeller. Still on wireless. You've indicated 
that--I mean, we all agree that cell phones don't work. OK. You 
mentioned cell phones.
    But then you said we're working on a ground to miner system 
which would be wireless which would not necessarily, as I took 
your words, mean that there would have to be a big installation 
of equipment underneath which might burn up or whatever.
    But my understanding of wireless is that its main hitch is 
that it depends upon the geological formation, also how deep 
the miners are. Now, was that incorporated in your answer that 
you may be very--it's on the cusp, may be a little bit after 
June 2009, because that's a very significant statement if 
that's what you meant.
    Mr. Kohler. I meant the statement as I said it, but I need 
to further define the through the earth.
    Through the earth is a direct straight line up and so 
through the earth communication would have application perhaps 
at certain pre-determined emergency meeting spots in the mine. 
For example, at a refuge chamber, it might be very desirable to 
have such a technology.
    But that technology would most likely not be practical to 
carry with you or to wear. So we would still depend upon other 
technologies but we would add through the earth in as one more 
layer, one more means of ensuring that there would be certain 
places where communication would be more highly assured and the 
problems are exactly what you said, the different layers of the 
earth, the amount of energy required.
    Senator Rockefeller. With this complex system that Senator 
Isakson's referring to, which I don't understand, and the more 
direct system which may not be possible, when do you think such 
a wireless system that will work for miners in various 
geological and depth situations will come into existence?
    Mr. Kohler. I think that a generalized wireless 
communication system for miners for most mines, deeper mines, 
larger mines, is years and years away because there are just 
fundamental laws of physics problems that are getting in the 
way of a solution.
    Senator Rockefeller. Then you don't want to be saying some 
time after June 2009.
    Mr. Kohler. Well, for a through the earth system that I 
could put just----
    Senator Rockefeller. Then say that. Then say that.
    Mr. Kohler. That I could put a refuge----
    Senator Rockefeller. There are miners here that will have 
one reaction, as you describe it. It's another reaction and 
it's good, but it doesn't satisfy the whole thing.
    Final question, Madam Chairman, is on sealing and that's 
already been covered.
    The MINER Act required MSHA to finalize standards relating 
to the sealing of abandoned areas, hugely important matter 
obviously in Sago, too. Now, the status, as I understand it, is 
MSHA has published a final rule on April 18, 2008, setting a 
three-tiered approach for the amount of pressure that mine 
seals must be able to withstand. The rule does not clearly 
address how or if existing seals will be updated to meet the 
new standards.
    In other words, what I'm saying, that statement says 
nothing to me at all, and I want to know that you've done 
something here, that if I don't understand the standards, that 
you understand the standards, and that they're going to be 
clearly printed.
    Mr. Stickler. Well, in addition to the three-tiered 
approach for the construction of seals, we've also required 
that the atmosphere in the sealed area must be monitored in all 
cases where the seal is less than a 120 psi. So by monitoring 
that atmosphere, we can determine and know if there's a 
dangerous condition.
    If a dangerous condition explosive atmosphere exists, then 
MSHA's rule requires that the operator withdraw the miners from 
the mine. So there's protection there. We recognize that some 
of the seals that were built according to the 1992 standard at 
20 psi, some of these seals are not accessible. We can't get in 
to the areas to strengthen them, but if an operator wants to 
build a 120 psi seal in its place, then MSHA's rule does not 
require the atmosphere to be monitored because we feel that 
that's an adequate strength seal.
    But we still have the seals that are less than a 120 psi. 
We require the atmosphere to be monitored and either be made 
inert or the people have to be withdrawn from the mine.
    Senator Rockefeller. OK. Thank you.
    Senator Murray. Just as a quick follow-up to that question. 
So the new standard applies only to new seals put in place, not 
into the existing--will it not require the existing seals in 
mines to be changed or improved?
    Mr. Stickler. Well, it requires the existing sealed areas 
to be monitored on a regular basis to take measurements for 
oxygen and methane gas so that the determination can be made 
whether or not there's a dangerous condition in the sealed 
    Senator Murray. So if it can't get a new seal, it's going 
to be monitored? It's not just going to be----
    Mr. Stickler. If it's less than a 120 pounds per square 
inch, it must be monitored.
    Senator Murray. OK. One last question for you. Earlier this 
week, MSHA published a new proposed rule as required in the 
MINER Act which would require underground coal mines provide 
refuge alternatives to protect miners when a life-threatening 
event makes escape impossible.
    The proposed rule doesn't indicate how long after the rule 
is finalized that these requirements could go into effect. Can 
you tell us what the timetable is for implementing that new 
    Mr. Stickler. On the refuge alternatives, my understanding 
is that the proposed rule does have language that specifies 
that those refuge alternatives that have been approved by State 
agencies, State mine safety agencies that have been accepted by 
MSHA in the emergency response plans that we have approved, 
that the structures will be accepted for 10 years or until it's 
replaced, and the components, the chemicals for scrubbing the 
carbon dioxide and things of that nature, would be accepted for 
a period of 5 years or until those components are replaced, 
whichever is the shortest amount of time.
    Senator Murray. OK. Senator Isakson, Senator Rockefeller, 
do you have any additional questions for this panel? All right.
    Well, thank you, both of you. We do have some additional 
questions that will be submitted from the committee. We would 
appreciate your response on those as well.
    Senator Rockefeller. Madam Chairman, actually, I have----
    Senator Murray. Yes?
    Senator Rockefeller. I apologize. There's a marvelous 
phrase called ``culture of safety'' and it's marvelous because 
it's really what it's all about. It involves you and it 
involves all of us. It involves coal miners. It involves 
    It's also an extraordinarily difficult thing to do, whether 
you're dealing with the Department of Defense or the Department 
of Agriculture or the intelligence community. Changing into a 
culture of safety is such an easy phrase and virtually 
impossible to do.
    It may be possible at some mines and not at others. It may 
be impossible at all mines. Everybody wants safety. The 
billboards are plastered everywhere, all over the place.
    What are you doing about that?
    Mr. Stickler. Well, MSHA is using the tools that Congress 
has provided the agency to improve safety. A big part of what 
we do is enforcing that there's compliance with the mine safety 
laws through the Enforcement Program. Approximately 70 percent 
of our budget is dedicated toward enforcement of the mine 
safety laws.
    Senator Rockefeller. No, no. I'm not talking about that at 
all. I assume you're doing that, hope you're doing that.
    I'm talking about a culture of safety, which is within the 
brain and intuition of the mine operator, the miner and all of 
us. I'm not talking about enforcing safety standards. I'm 
talking about that particular change of attitude which, in 
fact, I think in the long-term in both big mines and small 
mines is what is the best answer of all.
    Mr. Stickler. Well, I think there's several ways to bring 
about a change in attitude and certainly enforcement in my view 
with some operators is probably the most effective way to bring 
about a change in attitude.
    Senator Rockefeller. Well, your fines are helping to do 
    Mr. Stickler. Education and training is another key part of 
our responsibility. We operate the academy in Beckley, WV. We 
devote about 11 percent of our budget toward education and 
training. We produce hundreds of thousands of instructional 
documents, DVDs, videos, hard paper documents. So education and 
training is another key ingredient.
    Senator Rockefeller. Mr. Stickler, you were doing that 
before, too. Have the videos, the booklets changed? You 
understand what I'm trying to get at. It's not very 
    Mr. Stickler. Evidently, I don't understand your question.
    Senator Rockefeller. Well, then I will wait and try it on 
somebody else.
    Mr. Kohler. We have some ongoing work in NIOSH, some 
research projects looking specifically at safety culture and 
we've been going into some underground coal mines and we're 
trying to identify what the specific actions and 
characteristics are that management takes and others take which 
lead to this change in people's behavior and in doing that, in 
talking with the miners, talking with the operators, we are, in 
fact, identifying certain steps that can be taken, and we hope 
over the next 2 or 3 years, to make this really a major focus 
of how to change safety culture in the mines.
    Senator Rockefeller. Yes. And understanding that this will 
take a long, long time, I really hope I never hear somebody say 
I don't understand what you mean, like you just did, Mr. 
Stickler, to a question that large and that profound.
    Thank you, Madam Chairman.
    Senator Murray. Thank you very much, Senator Rockefeller.
    I hope that both of our witnesses will stay to hear the 
next panel in case we have any additional questions for you.
    With that, we'll bring up our second panel and hear from 
Dennis O'Dell and Bruce Watzman.
    We will move to our second panel here. I'm having a 
competition between these two guys here, so I'll interrupt that 
and go to our panel and we will begin with Dennis O'Dell. So 
they're going to go behind my back here and do it.
    Dennis, we'll begin with you.

                          FAIRFAX, VA

    Mr. O'Dell. Thank you, Madam Chairman, Senator Isakson, 
Senator Rockefeller.
    I'd like to thank you on behalf of all the members of the 
United Mine Workers of America for holding another important 
meeting on workplace safety for miners.
    The Union is pleased to share its perspective regarding 
what has and has not occurred concerning coal mine safety since 
the passage of the MINER Act some 2 years ago. We very much 
appreciate your interest in protecting the Nation's miners and 
their families. We are also pleased that you understand the 
need for continued oversight of the Federal agencies charged 
with protecting the health and safety of all miners.
    I would also like to go on record today thanking Senator 
Kennedy for the recent report issued by the Health, Education, 
Labor, and Pensions Committee regarding the Crandall Canyon 
Mine disaster, as well as offer our thoughts and prayers to him 
and his family for his recently discovered illness. We know the 
Senator is a fighter and will be back soon in full stride.
    This committee's report uncovered a very disturbing story 
with much insight and facts, the story of the extent to which 
some operators will violate the laws and ignore the health and 
safety of our miners while using its influence to maximize 
their profits.
    The report indicated that the operator at Crandall Canyon 
overlooked the needs of miners and coerced the Federal Mine 
Safety and Health Administrator into abdicating its 
responsibility to protect those workers, thus causing the 
tragedy that led to the loss of those miners.
    The senseless act only reinforces what miners have said for 
years and that is, that every coal mine health and safety law 
in this country is written in coal miner's blood. Despite the 
existing laws governing miners' health and safety, miners 
continue to die at an alarming rate. Already this year, we have 
had 15 miners killed. This is far too many.
    It's imperative that further improvements are made in our 
laws and regulations so that no more miners risk their life 
simply because they work at a mining operation.
    I come out of the coal fields, having been an underground 
coal miner for nearly 19 years. From there, I was appointed as 
an international health and safety representative in the field, 
and in 2005, was appointed as the administrator for Health and 
Safety for the United Mine Workers. That gives me to date 30+ 
years experience in the coal mining industry.
    I only say this to you so that you will know that I've 
lived the majority of my life as a coal miner. One of the 
hardest things I think I've ever had to learn from working as a 
coal miner on a day-to-day basis to where I am now as an 
administrator for Health and Safety for the United Mine Workers 
is that safety regulations are not passed simply because it 
makes sense and they save lives but that there's a cost factor 
involved, whether it be the cost of someone's life or it has to 
be economically feasible for the operator. I just wonder how 
much is a life worth? What does it really cost?
    This was a disappointment for me to learn and it's still 
hard for me to understand.
    The other thing that's tough to understand is that the 
passage of laws aren't the same for small operators as they are 
for large operators. That's something that we need to get 
fixed. Let me, if I can, give you an example of what I'm trying 
to lay out.
    On February 7, 2008, MSHA issued its criteria for 
procedures for proposed assessment of civil penalties in the 
final rule. The rule became effective March 10, 2008. The 
intent of it was to have MSHA revise its penalty assessment 
program in such a way that it would force all mine operators to 
comply with the MINER Act and regulations.
    But what the agency did, contrary to this directive, 
they've offered a plan that separates the assessment program 
into several different schemes. The agency's proposal will 
permit small operators to avoid appropriate fines for violating 
the law while holding large mine operators to a much higher 
standard and penalty.
    The bottom line is based on the size and ability to pay, 
small operators could be exempt from certain fines that large 
operators are not exempt, creating not only an unfair advantage 
but weakening the protection for those miners at these smaller 
    It's our belief that miners deserve the same protection 
whether they work at a mine that employs 5 miners or 500. This 
needs to be corrected.
    Now let me talk about the conferencing of citations, if I 
may. The Union previously expressed concerns about the ability 
of mine operators to abuse the conference system. Our concerns 
were validated by MSHA's reporting in that press conference on 
June 16, just a few days ago, that there are around 200 
operators that have contested 100 percent of their citations.
    Internal company documents obtained during the Health 
Committee investigation of the Crandall Canyon disaster prove 
this to be a deliberate strategy of that mine operator and it's 
apparent from the press conference from MSHA that other 
operators employ this tactic as well.
    We believe that MSHA's taken some important first steps in 
addressing this issue when they issued a procedural instruction 
letter to address the conferencing system but so far it has not 
slowed the operators down in jamming up the system.
    Let me touch on a few things that we think has been 
positive. An outgrowth of the MINER Act, the Technical Study 
Panel on the Utilization of Belt Air and Composition and Fire 
Retardant Properties of Belt Materials in Underground Coal 
Mining, after completing their analysis, issued 20 consensus 
recommendations to the Secretary for consideration.
    The Union is generally pleased with the work of the panel 
and would credit it with compiling extensive documentation and 
testimony on the subject and using that information to 
recommend important improvements in mine health and safety.
    We believe that MSHA should follow suit and adopt the 
recommendations into the final rule. So far, we see some hints 
of watering those recommendations down. We need to accept those 
    Another area is the hiring of inspectors which you heard 
Mr. Stickler talk about prior to me.
    They've said that with the increased number of inspectors, 
they are able to get all the mine inspections completed in the 
time period mandated by the MINER Act which is four times a 
year or four quarters on underground mines and two on the 
    Yesterday, I spoke with some miners in Pennsylvania and one 
of the things that they were complaining about is the way 
MSHA's accomplishing this. What they're doing is they're 
sending a large number of inspectors into a coal mine at the 
last minute of the last days of that quarter to finish that 
    So if the inspection period ends on Friday, you may have on 
Thursday and Friday six or seven Federal mine inspectors there, 
some from, say, Pennsylvania, for example, inspectors from 
Ohio, West Virginia, Kentucky, maybe from the anthracite, and 
they're doing a run-through to try to get that inspection done 
so that they can say they meet the mandate to finish the 
inspections by the end of the quarter.
    I honestly don't believe this is what Congress intended. I 
think the operators are equally upset with this because they 
have to provide manpower to travel with these inspectors. This 
is something that needs to be addressed and it's something that 
needs to be fixed.
    The other thing that miners are complaining about is that 
these inspections are only--the majority of these inspections 
are only done on day shift. We need to get these inspectors out 
there on the midnight shifts, on the afternoon shifts, when all 
the other activities are taking place as well.
    On a positive note, the MINER Act has had a positive effect 
on the pattern of violations when MSHA chooses to use it. Using 
the standard as a routine tool to induce compliance will have a 
beneficial impact on the health and safety of miners.
    We still have much work to do on the sealing of abandoned 
and worked-out areas, as you touched on with the panel previous 
to us. We need to look into that. Although some steps have been 
taken to improve it, we need to do better.
    Having dedicated the better part of my career to improving 
miners' health and safety, I have investigated far too many 
tragedies, visited many injured miners and consoled many 
grieving family members. We can appreciate the improvements 
that have been made in the last 2 years, but so much more is 
needed to be done. Our job is not yet completed.
    It's time for bolder action and bigger steps. MSHA must be 
convinced or directed to implement all the provisions of the 
MINER Act as Congress has mandated and the Senate should pass 
and encourage the passage of the S-MINER Act that was passed by 
the House.
    In closing, on behalf of all coal miners, I would like to 
thank you again for what you've done. Many in this industry had 
hoped by now that your interest would have died off. There are 
folks within MSHA pulling their hair out because you're 
pressing them to do a better job and to be accountable. Others 
in MSHA are glad to get your support so that they can finally 
do their job. NIOSH is feeling pressure and an increased 
workload to find the best solution with the limited budget and 
a quick timeline, but those within NIOSH that truly have the 
miners' best interests at hand will rise to the occasion.
    To be very honest, there are many operators in this 
industry that were hoping you would have just gone away by now 
and had no further hearings so that the chance of the passage 
of the MINER Act 2 would die and the mandates of the MINER Act 
that you've already passed could be watered down.
    As a representative of the miners, I thank you for keeping 
your continued interest alive. As a coal miner, I thank you as 
well so that maybe more of us won't have to die.
    Thank you.
    [The prepared statement of Mr. O'Dell follows:]
                  Prepared Statement of Dennis O'Dell
            Coal Mine Health and Safety in the United States
    Madam Chairman and members of this Subcommittee on Employment and 
Workplace Safety, I would like to thank you on behalf of all the 
members of the United Mine Workers of America (UMWA or Union) for 
holding this very important hearing. We are eager to share the UMWA's 
perspective regarding what has--and has not--occurred concerning coal 
mine health and safety since the MINER act passed some 2 years ago. We 
appreciate your interest in protecting the Nation's miners and their 
families. We are also pleased that you appreciate the need for 
continued oversight of the Federal agencies charged with the 
responsibility to protect the health and safety of all miners.
    It is said that ``Every coal mine health and safety law in this 
country is written in coal miners' blood.'' Despite the existing laws 
governing miners' health and safety, miners continue to die at alarming 
rates. Already this year, we have lost 14 coal miners. This is far too 
many. We need to further improve our laws and regulations so that no 
miner will be killed just because he goes to work at a coal operation.
    It took the Jim Walters Resources disaster of September 2001, and 
the Sago, Aracoma and Darby disasters of 2006 to achieve the post-
accident improvements contained in the Mine Improvement and New 
Emergency Response Act of 2006 (MINER Act). We hope that Congress will 
appreciate that lessons learned from the Crandall Canyon disaster 
demonstrate that it is imperative to enact further legislation to 
protect miners, such as the pending S-MINER Act.
    We must learn from tragedies and near misses alike. We should take 
corrective action. However, as two recent investigative reports 
demonstrate, MSHA is not doing a good enough job protecting miners. The 
U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP) 
Report and the Department of Labor's (DOL) Office of Inspector 
General's (OIG) Report regarding MSHA's actions and inactions at the 
Crandall Canyon mine last August both show internal problems at the 
Agency. I commend Senator Kennedy and the entire HELP Committee and the 
DOL's OIG on their Reports and would like to make both Reports a part 
of this record. From these reports it is evident that MSHA is incapable 
of policing itself.
    When Congress passed the MINER Act, it constituted the first 
Federal mining law enacted in almost 30 years. While it offers miners a 
better chance of surviving and escaping a fire, explosion, innundation 
or mine entrapment, in order for it to be most useful to miners it must 
be effectively codified in regulations by MSHA. As investigators 
outside of MSHA have discovered, MSHA continues to make dire mistakes, 
at the expense of miners' safety.
                     crandall canyon mine disaster
Report Released by the Health, Education, Labor, and Pensions Committee
                             Edward M. Kennedy, Chairman
    First, let me thank Chairman Kennedy on the record for the recent 
Report issued by the Health, Education, Labor, and Pensions Committee 
regarding the Crandall Canyon mine disaster. That Report is insightful 
and factual.
    It shows the extent to which some operators violate and ignore 
health and safety laws. The Report indicates that the operator at 
Crandall Canyon overlooked the needs of miners and coerced the Federal 
Mine Safety and Health Administration into abdicating its 
responsibility to protect those workers. Indeed, it demonstrates that 
this operator systematically used its influence when it could to 
maximize profit.
    As the Report illustrates, that operator made multiple attacks on a 
system designed in many cases to be slow and methodical. The disaster 
was partly attributable to the operator's deliberate intimidation of 
MSHA inspectors and supervisors, but also to a misguided desire on the 
part of some agents of MSHA to appease the operator by reducing 
enforcement in return for favors. The Company strategically challenged 
most citations, thereby overwhelming an already overtaxed program. 
Further, Bob Murray's words and tactics, and those of his surrogates, 
were well-known and documented by the Agency and by the industry: his 
established way of doing business is to intimidate, threaten, peddle 
his influence when he can.
    Regrettably, the disaster at Crandall Canyon was clearly 
preventable. We now know that Bob Murray had prior knowledge of 
problems that were being experienced at the mine--even though he later 
denied that to the press and families. Let me say on behalf of the UMWA 
that we concur with the Report that, ``. . . miners were exposed to 
unnecessary and extreme risks. The mine operator and MSHA must be held 
accountable for their failures of diligence, care and oversight.''
Report of U.S. Department of Labor, Office of Inspector General--Office 
        of Audit
    Just 25 days after Chairman Kennedy's committee issued its report, 
the Office of Inspector General (OIG) of the U.S. Department of Labor 
issued its own report on findings regarding MSHA's involvement in 
approving the roof control plan, and then assuring the operator's 
compliance with the approved plan leading up to the Crandall Canyon 
disaster. The OIG investigation also considered some of the post-
accident rescue and non-rescue activities. The OIG report found that:

          ``MSHA was negligent in carrying out its responsibilities to 
        protect the safety of miners. Specifically, MSHA could not show 
        that it made the right decision in approving the Crandall 
        Canyon mine roof control plan or that the process was free from 
        undue influence by the mine operator. MSHA did not have a 
        rigorous, transparent review and approval process for roof 
        control plans consisting of explicit criteria and plan 
        evaluation factors, appropriate documentation, and active 
        oversight and supervision by Headquarters and District 9 
        management. Further, MSHA did not ensure that subsequent 
        inspections assessed compliance with, and the effectiveness of, 
        approved plans in continuing to protect miners. MSHA and mine 
        operator officials worked together to develop rescue plans 
        related to the August 2007 tragedy with MSHA exercising final 
        approval authority over all activities. MSHA, however, lacked 
        guidance on appropriate non-
        rescue activities.''

    The OIG found the Agency was complacent in enforcing the Mine Act. 
Moreover, it identified several instances where MSHA personnel ignored 
its established protocol and modified a Federal regulation to allow the 
plan to be approved, and then remain in place even after learning about 
material facts that should have caused it to reconsider. An MSHA 
supervisor, after meeting with company officials, was found to have 
ignored the assessment by an employee under his direction that the roof 
control plan proposed at Crandall Canyon was not safe and should be 
    The OIG Report not only reinforces the findings of the HELP 
Committee, but it also validates what the UMWA has been saying for 
quite some time: In recent years, the Mine Safety and Health 
Administration has ceased to be the enforcer of the Nation's mining 
laws and the protector of miners. Instead it is more concerned with 
increasing operators' production and growing their bottom lines. This 
was never what Congress intended when it enacted our mining laws, 
whether in 1969, 1977 or in 2006. The Agency needs to return to its 
fundamental purpose: that is, to protect the health and safety of 
    Like the HELP Committee Report, the OIG Report underscores the need 
to create an independent body to investigate mining accidents and 
disasters. The UMWA has been calling for an independent investigative 
body for decades. For the record: MSHA has clearly demonstrated time 
and time again its inability to police itself. The UMWA is once again 
recommending the establishment of an independent body to conduct post-
accident investigations.
                     assessment of civil penalties
    On February 7, 2008, MSHA issued its Criteria and Procedures for 
Proposed Assessment of Civil Penalties; Final Rule, 30 CFR Part 100. 
The rule became effective March 10, 2008.
    The intent of Congress was to have MSHA revise its penalty 
assessment program in such a way that it would force all mine operators 
to comply with the Mine Act and regulations. The Agency, contrary to 
this directive, has offered a plan that separates the assessment 
program into several different and inequitably applied schemes. The 
Agency's proposal will permit small mine operators to avoid appropriate 
fines for violating the law, while holding large mine operators to much 
higher standards and penalties. The Agency also proposes tolerating a 
more relaxed set of criteria at metal/non-metal operations. This 
approach does not enhance the health and safety protections for the 
Nation's miners and will not force large segments of the industry, that 
obviously need additional inducements, to take necessary action to 
comply with the law.
    Rather than adopt an approach that forces across-the-board 
compliance, the Agency--while incrementally increasing the initial 
civil penalty--mitigates the overall effect of this increase by 
applying an outdated and failed litmus test to determine what operators 
are actually assessed. However, the criteria will in practice reduce 
the penalties to some of the most dangerous operations. These 
mitigating circumstances include:

    (1) The appropriateness of the penalty for the size of the business 
of the operator charged;
    (2) The operator's history of previous violations;
    (3) Whether the operator was negligent;
    (4) The gravity of the violation;
    (5) The demonstrated good faith of the operator charged in 
attempting to achieve rapid compliance after a notification of a 
violation; and
    (6) The effect of the penalty on the operator's ability to continue 
in business.

    If a small mine operator is unable to financially comply with 
mandatory health and safety standards, then they should not be in 
business. Coal miners are exposed to enough inherent dangers without 
also tolerating an operator's noncompliance due to a financially 
precarious operating budget. We would hope that the Agency is not 
saying that miners employed at small mines should be afforded fewer 
health and safety protections than those afforded to miners at larger 
mines. If so, this essentially gives smaller operations the license to 
kill and maim.
    Some of these standards should have been eliminated when MSHA 
drafted its new regulation. The Union believes the Agency's 30 years of 
experience in gathering information on mine operator violations and 
assessing penalties is sufficient to apply the mandate of Congress in a 
far more targeted manner.
    MSHA should be able to determine what operations require special 
attention. The Agency is aware that small mine operators generally do 
not offer their miners the same level of protection as do larger 
operations. While MSHA has identified some of these areas of special 
concern, such as by initiating the tri-State initiative and the small-
mine department, it should also use this knowledge to more effectively 
protect miners employed at small mines. Giving small mine operators a 
break in the penalty scheme is not the answer.
    The Agency must consider if the potential for a penalty is 
sufficient to force an employer to correct an existing problem prior to 
the arrival of an inspector. In particular, at small operations--that 
do not usually receive frequent inspections--management simply will not 
be induced to take a proactive approach to health and safety based on 
this rule. In real terms, will this cause the small operator to replace 
a worn tire when it becomes hazardous without intervention by the 
Agency? Or will it permit them to continue to operate the hazardous 
equipment because the ultimate fine will be $100 and a new tire costs 
$20,000? The penalty must fit the violation and in some instances that 
requires greater enforcement sanctions by MSHA.
    The Union believes the baseline penalty for all citations of a 
similar nature should be identical without regard to any mitigating 
factors, especially mine size. After all, a miner is a miner. The 
Agency should therefore consider increasing the size of the penalty 
based on the immediate conditions of the violation. The appropriate 
criteria should include:

    (a) The operator's previous violation history (over the past 24 
    (b) The degree of operator negligence;
    (c) The gravity of the violation; and
    (d) The number of persons who were or would have been affected/
injured by the condition had it been permitted to continue to exist.

    There should be no circumstances or factors that are permitted to 
mitigate the amount of the assessment. This must include giving no 
consideration to the size of the penalty in reference to the size of 
the operator, any demonstration of good faith to correct a cited 
condition or the affect on the operator's ability to continue in 
business. Non-compliance at small mines is not a new problem. It has 
existed for well over 30 years. Miners are being injured and dying at 
these operations in disproportionate numbers, and MSHA needs to act 
    Miners at all operations, no matter what the size, deserve the same 
protection under the law. There can be no special circumstances that 
would permit any violation to be viewed as less severe based on 
unrelated and outdated criteria. The Union would recommend that 
Congress direct the Agency to correct these flaws in the current 
                         pattern of violations
    The decision by MSHA to exercise its authority under 30 CFR Part 
104, Pattern of Violations, represents an important step in achieving 
greater compliance. This regulation identifies mine operators who have, 
``established a pattern of significant and substantial (S&S) violations 
at the mine.'' Using this standard as a routine tool to induce 
compliance will have a beneficial impact on health and safety.
    Whereas MSHA previously failed to use this power, it has begun to 
take advantage of this compliance tool to progressively increase 
pressure on operators and force them to address health and safety 
problems at their operations. The operators thus have significant 
control over the severity of their own regulatory penalty. Operators 
who move to correct hazardous conditions are removed from the pattern 
system. Operators who seek to continue the status quo or resist the 
Agency's attempt to force compliance will suffer increasing regulatory 
intervention by MSHA. Ultimately, operators who refuse to voluntarily 
follow the law will be issued orders to withdraw all miners from the 
affected area until the Agency is satisfied that the condition has been 
corrected. This type of enforcement, while rare, is necessary and 
appropriate in some cases.
    The Union is pleased to see that MSHA has finally decided to use 
this available tool to increase pressure on mine operators who 
habitually violate the law.
                          flagrant violations
    Section 8(b) of the MINER Act states that, ``Violations under this 
section that are deemed flagrant may be assessed a civil penalty of not 
more than $220,000.'' The act defines flagrant to mean, ``. . . 
reckless or repeated failure to make reasonable efforts to eliminate a 
known violation of a mandatory health or safety standard that 
substantially or approximately caused, or reasonably could have been 
expected to cause death or serious bodily injury . . . ''
    The UMWA is pleased to see that MSHA has been exercising this new 
authority to apply enforcement leverage to uncooperative operators. We 
encourage MSHA to continue to use the ``flagrant'' power and to do so 
in a consistent and even-handed manner to effectively protect the 
health and safety of all miners.
    We only wonder how it was that Crandall Canyon has escaped this 
enforcement tool!
                       conferencing of citations
    The Union previously expressed concerns about the ability of mine 
operators to abuse the conference system. Our concerns were validated 
insofar as many operators were overwhelming the process by requesting a 
conference for almost every citation issued by the Agency. Internal 
company documents obtained during the HELP Committee investigation of 
the Crandall Canyon disaster proved this to be a deliberate strategy of 
that mine operator. It is apparent that other operators employ this 
tactic, too.
    This ``plan of action'' by operators created several problems 
within the Agency. The sheer volume of citations conferencing officers 
were approving for hearings limited the Agency's ability to prepare and 
defend the citations. In most cases, the mine inspector who issued the 
citation was unable to attend the conference to explain the reason for 
the citation, leaving the conferencing officer with no first-hand 
knowledge of the conditions cited. As a result, most of the citations 
that went before the officer were reduced or abated. In reality, by 
overloading the system, the mine operator could reduce or eliminate its 
liability and therefore the amount of the civil penalty. This problem 
has existed for many years and should have been addressed previously.
    We believe that MSHA has taken an important first step--albeit 
belatedly--in addressing this issue. On February 4, 2008, Kevin 
Stricklin, Administrator for Coal Mine Safety and Health, and Felix 
Quintana, Administrator for Metal and Non-metal Safety and Health, 
issued Procedural Instruction Letter (PIL) No. 108-III-1 to adjust the 
conferencing system. The PIL generally limits conferences to 
unwarrantable failure and high negligence violations, albeit with a 
window for other challenges when appropriate. This should prevent the 
operator abuse that previously plagued the system.
                             closure orders
    MSHA needs to understand that greater compliance pressure must be 
placed on some operators in the industry. History has shown that as 
long as production continues, some mine operators do not feel compelled 
to comply with health and safety laws or correct outstanding 
violations. The Union has long urged MSHA to require the cessation of 
all production work and the withdrawal of miners, except those needed 
to correct the hazardous condition(s). This approach will force rogue 
operators to comply with the law and encourage a culture more focused 
on health and safety.
    The Union believes that the Agency has had this authority under 
section 104 of the act; we recently learned that MSHA plans to exercise 
this authority when needed to coerce compliance. While we feel this is 
long overdue, we nevertheless appreciate this new direction.
                                belt air
    An outgrowth of the MINER Act, the Technical Study Panel on the 
Utilization of Belt Air and the Composition and Fire Retardant 
Properties of Belt Materials in Underground Coal Mining (Panel or TSP) 
began its work in January 2007. In the following 18 months, the TSP 
held various meetings around the country and toured several mining 
operations to gather relevant information. On December 18, 2007, after 
completing their analysis, the Panel issued 20 consensus 
recommendations to the Secretary for consideration.
    The Union is generally pleased with the work of the Panel and would 
credit it with compiling extensive documentation and testimony on the 
subject and using that information to recommend important improvements 
in mine health and safety.
    The Union still believes that use of belt air is generally unsafe 
for numerous reasons, many of which the Panel identified and noted as 
being unsafe. Though the Panel failed to recommend the banning of belt 
air, it determined that for certain operations, based on geology, depth 
of coal seam and methane gas liberation, the use of belt air can be 
justified so long as other protections are provided. Indeed, the Panel 
suggested that protections beyond those currently required by MSHA's 
belt air rule be added whenever belt air is approved.
    The Panel indicated that the 2004 belt air rule that MSHA 
promulgated--over strong UMWA objection--is not sufficiently protective 
of miners. It also expressly noted that most current mining operations 
do not require the use of belt air and, absent a demonstrated 
enhancement of safety, should not be permitted to use it.
    The Union believes that MSHA should begin the process of 
promulgating a new belt air rule. This rulemaking process should be 
expedited and follow the recommendations of the TSP. Also because of 
pressure from mine operators on MSHA District personnel, the Agency 
must take steps to see that the Headquarters staff oversees all 
requests for the use of belt air.
                           belt flammability
    The question of belt flammability has been a concern of the UMWA 
and other health and safety organizations for at least a few decades. 
Attempts to promulgate a rule with regard to flame-resistant belts 
began in the early 1980s, but such a rule was never completed. Then in 
2002, the Assistant Secretary for Mine Safety and Health, David 
Lauriski, a former coal mining executive, removed the ``belt 
flammability rule'' and 16 other then-pending regulations from further 
consideration. Failing to develop a protective rule on belt 
flammability was costly when a belt fire at Massey Energy's Aracoma 
Alma No. 1 Mine claimed the lives of two miners on January 19, 2006.
    The TSP that considered belt air also analyzed belt flammability 
and urged MSHA to immediately re-propose and implement the rule that 
was previously proposed but withdrawn in 2002--Requirements for 
Approval of Flame-Resistant Conveyor Belts.
    There was also consensus among the members of the Panel that all 
mines, regardless of whether they use belt air or not, should be 
required to install belts that meet the new flame-resistant 
requirements. The Panel also recommended that operators install 
additional fire detection hardware and software to current atmospheric 
monitoring systems (AMS) in order to use belt air. The Panel further 
recommended the use of smoke detectors in conjunction with CO sensors 
and suggested that MSHA consider other gas detection devices, too. 
Further, all AMS records in any mines using belt air should be reviewed 
by MSHA inspectors during regular inspections to determine the number 
and nature of all false alarms.
    The Union is convinced that a belt flammability rule is long 
overdue. The Union urges MSHA to begin the process of promulgating a 
new belt flammability rule. This rulemaking process should be expedited 
and follow the recommendations of the TSP.
                 sealing of abandoned/worked-out areas
    In May 2007, MSHA issued the Final Rule: Sealing of Abandoned 
Areas, 30 CFR Part 75 Sec. 335, Sec. 336, Sec. 337, Sec. 338 and 
Sec. 371. The Union is generally pleased with most of the requirements 
in that rule and thanks MSHA personnel and support staff for their hard 
work on behalf of the Nation's miners. The Union believes that some of 
its recommendations that MSHA failed to include in the rule are still 
necessary and should be pursued by the Agency.
    In particular, we believe that all seals, no matter what the static 
or dynamic pressure rating, should be equipped with devices to monitor 
the atmosphere it is designed to separate from the active workings. 
This monitoring should be done through a combination of surface 
boreholes and seal sampling tubes (at least two sampling tubes should 
be placed in the highest seal in each bank of seals constructed). This 
approach would permit mine operators, miners and the regulatory 
agencies to be aware of the atmospheric conditions in the sealed area. 
We believe that this monitoring scheme would be more protective of 
    The UMWA also believes that MSHA should re-consider whether to 
restrict some materials from being used to construct seals. The use of 
some materials, such as Omega Blocks and wood, have no place in seal 
construction at underground mining operations. They do not offer the 
necessary protections outlined in the Mine Act and should be prohibited 
for such applications. The ineffectiveness of Omega Block seals was 
witnessed firsthand at Sago.
                     communication/tracking devices
    The UMWA is pleased that MSHA, with the assistance of the National 
Institute for Occupational Safety and Health (NIOSH), is in the process 
of evaluating and testing several communications systems for in-mine 
use. Likewise we are pleased that MSHA has agreed to expedite the 
approval process for all such devices. Based on the current status of 
these devices, we agree with the Agencies' dedication of significant 
resources toward developing a two-way wireless communication system. We 
also agree with their assessment that development of the system is the 
most technically challenging, and that once it is completed a tracking 
system can easily ``piggy-back'' onto the existing communication 
    There has been some progress with respect to wireless technology 
for underground mining application. However, despite recent 
announcements that a wireless tracking system has been approved by 
MSHA's Approval and Certification Center (A&CC), it must be pointed out 
that the approved system is not entirely wireless. The Mine Tracer 
Miner Location Monitoring System made by Venture Design Services, Inc. 
uses infrared RIF readers placed at specific locations in mine entries 
to track miners who are wearing a transponder as they pass the reader. 
It is capable of transmitting this information wirelessly for several 
thousand feet, provided the readers are installed in a line-of-sight 
configuration. However, the information is transmitted to a 
distribution box that requires a hard wire connection from the 
underground to the surface.
    While these advances are important, we need to continue to pursue 
truly wireless technology if we are to achieve the mandates of the 
MINER Act and offer miners the best chance of rescue in an emergency 
situation. To reach this goal, it is critical that Congress allocate 
sufficient dedicated funds to both MSHA and NIOSH to complete this 
important task.
                    mine inspectors/mine inspections
    Approximately 273 individuals were hired into inspector positions, 
and the first hires have nearly completed their initial training.
    This does not solve MSHA's long-term problem. Like the entire 
mining community, much of the current inspectorate will reach 
retirement age in the next 5 years. The General Accounting Office 
recently estimated that approximately 41 percent of those eligible (154 
inspectors) will leave the Agency by 2012. Thus, it is imperative for 
MSHA to regularly and continuously hire inspector trainees.
    An additional benefit of planning for substantial retirements will 
result in the return of MSHA's ventilation, roof control, electrical 
and other specialists to their primary assignments--carefully reviewing 
and addressing mining plans submitted by the operators--rather than 
serving as fill-in inspectors.
    In addition to the issues already raised during my testimony, the 
UMWA also believes that MSHA must adopt an aggressive regulatory agenda 
to address these other important issues to enhance health and safety 
protections for miners:

    1. Improve atmospheric monitoring systems (note the Technical Study 
Panel addressed this issue);
    2. Develop a nationwide emergency communication system;
    3. Reduce miners' occupational exposure to coal mine respirable 
    4. Update air quality chemical substance and respiratory protection 
    5. Promulgate a rule on confined spaces;
    6. Promulgate a rule on surge and storage piles;
    7. Reduce respirable crystalline silica exposures;
    8. Provide for verification of surface coal mine dust standards; 
    9. Promulgate a rule on requiring continuous monitoring of coal 
mine respirable dust in underground coal mines.
                     independent investigative body
    The UMWA has been advocating the creation of an independent 
investigative body, much like the National Transportation Safety Board 
or Chemical Safety Board, to investigate post-accident mine tragedies. 
Recent events in the Nation's coal fields have only reinforced the need 
for such a board.
    For many years, we have realized that mine operators cannot be 
trusted to police themselves. In 1969, 1977, and again in 2006, 
Congress reached this inescapable conclusion. While MSHA was created to 
protect miners, in recent years we have witnessed the Agency cower to 
industry pressure. Too often it concerns itself about the potential 
cost of issuing new or improved regulations and enforcing existing 
laws, rather than focusing on protecting miners. The two Crandall 
Canyon reports cited earlier in my testimony demonstrate problems 
internal to the Agency.
    MSHA must be required to return to its core mission and offer 
comprehensive and strict enforcement of the Nation's mining laws. 
Further, the Agency does not possess the ability to conduct thorough 
and independent investigations into its own conduct and the role it 
plays in mine disasters and near misses. It can no more conduct an 
impartial investigation into its own contribution to a mining disaster 
than could the operator of the affected mine.
    Therefore, it is extremely important for the long-term survival of 
the Agency and ultimately the health and safety of miners across the 
country that a truly independent body be assigned a key role in 
investigating MSHA's and the operators' role in such horrific events. 
Failure to do so will inevitably lead to more death and sorrow in the 
Nation's coal fields.
                            program funding
    Based on the mandates of Congress, it is imperative that increased 
and sustained funding be available if we are to offer miners the 
greatest protection possible. The Union would, therefore, also 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 Experimental Mine and Facility;
      Appalachian Laboratory for Occupational Health and 
Safety, Morgantown, WV;
      MSHA's Approval and Certification Center;
      Personal Dust Monitors (PDM); and
      Colorado School of Mines.
                    supplemental miner act (s-miner)
    In 2006, having witnessed back-to-back tragedies at Sago, Aracoma 
and Darby, Congress determined that something was very wrong with coal 
mine health and safety. The passage of the MINER Act of 2006 helped re-
direct MSHA to its core mission, at least concerning the post-accident 
events. However, as already provided in this testimony, and the HELP 
and OIG Reports very well articulate, we have much more to do before 
many of the identified problems are corrected and the many needs not 
addressed by the MINER Act are acted upon legislatively. The S-MINER 
Act, which your colleagues in the House passed last year, provides an 
excellent means for fixing remaining shortfalls in miners' health and 
    At the time of the signing of the MINER Act, we hailed it as an 
important first step in addressing the hazards and dangerous conditions 
miners face daily. We still believe that once fully implemented as 
Congress intended, it will be very beneficial to miners who find 
themselves attempting to survive or escape a mine disaster. But that 
was not enough. Now is the time to move forward with additional 
legislation to help prevent such disasters from occurring in the first 
    The time has come to move forward with the S-MINER Act. This 
legislation that was passed out of the U.S. House of Representatives on 
January 16, 2008 is the first measure since the passage of the 1977 
Mine Act aimed at preventing accidents and disasters. There can be no 
doubt that such a law is long overdue.
    While we have discussed some of the health and safety enhancements 
still needed and which are contained in the S-MINER Act, it is 
important to review that proposed legislation as an integrated whole. 
If enacted, the S-MINER Act would offer greater protection to miners 

     Requiring a communication system, at least as effective as 
a leaky feeder system, be installed in all mines within 120 days of 
enactment of the legislation; also mine operators would need to upgrade 
to better systems as the technology becomes available.
     Requiring mobile emergency shelters within 500 feet of the 
working face in all working sections within 60 days.
     Seals.--All seals designed to withstand less than 240 psi 
would be monitored:

        1.  Through at least one seal in each bank of seals.
        2.  Through surface boreholes.
        3.  Within 1 year, monitoring would be done by a continuous 
        4.  Applicable to metal/non-metal mines.

     Ventilation Controls.--Within 1 year all stoppings in 
sections other than pillar sections would:

        1.  Be constructed of solid blocks, laid wet, sealed with 
        bonding agent on at least the intake side.
        2.  Pillar sections may use hollow blocks and bonding agent.

     Flame-Resistant Belts.--By December 31, 2012 all belts 
would have to meet the flame-resistant requirements recommended by 
NIOSH. Shall apply to metal/non-metal mines.
     Belt Air.--By June 20, 2008 MSHA would have to revise its 
regulations and approve the use of belt-air only by the 101(c) petition 
process. Petitions would have to demonstrate significant safety 
constraints requiring their use and the operator would have to agree to 
MSHA's requirements for such usage. Mines currently using belt air 
could continue for currently developed areas.
     Communications.--Pre-Shift Review of Conditions

    1.  Upon exiting the mine, the foreman, examiner or other agent of 
the operator would have to meet with their cross-shift and verbally 
communicate the conditions in the mine.
    2.  The incoming foreman, examiners or other agents would have to 
communicate this information with all members of the crew.

     Atmospheric Monitoring.--All areas where miners work or 
travel would have a continuous atmospheric monitoring system installed.
     All miners working alone for any part of a shift would be 
equipped with a device to measure levels of methane, oxygen and carbon-
     The National Academy of Science would undertake a study of 
lightning and offer recommendations to the Secretary to better protect 
miners, with the study to be completed within 1 year.
     Barrier Reduction and Pillar Recovery.--Special internal 
plan review process for operations engaging in such work at depths 
greater than 1,500 feet or at a mine with a history of bumps.

          Operator would have to have an approved plan.
          Operator would have to notify MSHA one week before 
        beginning such mining.
          MSHA would respond to notice in writing.

                  to ensure all miners engaged in such work are 
                  to witness such work to ensure it is done 
                  could stop such mining at any time for safety 

          National Academy of Science.--Would study the issue 
        and make recommendations if necessary.

     SCSR Random Testing Program

          NIOSH would conduct annual random sampling of SCSRs 
        in the field and determine the number to be sampled annually.
          Operators would be responsible to purchase 
        replacement units.

     MSHA Approval Center Priorities

    1. Next generation SCSR.
    2. Wireless communications.

     NIOSH Research Priorities for Next 5 years

    1. Next generation SCSR.
    2. Battery technology for communication and Personal Dust Monitor.
    3. Advancing mine rescue team technology.
    4. Improved ventilation controls.
    5. Development of a mine-wide monitoring system.

     MSHA's Inspection Force

    1. Creation of Master Inspector Position (increased responsibility 
and pay).
    2. Lifting the employment limits to train new inspectors before 
current ones retire; bar to be lifted for 5 years.
    3. If new inspectors cannot be hired in adequate numbers, retired 
inspectors could be employed on a contract basis.

     Creation of the Office of Ombudsman Within Office of 
Inspector General.

    1. Appointed by the President.
    2. Approved by the Senate.
    3. Handles confidential complaints of miners, family members and 
    4. Toll free phone number and internet site for contact.
    5. Tracks injuries, illness and violations.
    6. Monitors Secretary of Labor's efforts on behalf of miners.

     Pattern of Violations
    1. Clarifies how to determine a pattern of violation.
    2. Sets criteria for removal from pattern of violation status.
    3. Fines for pattern from $50,000 to $250,000.
    4. Withdrawal of miners from the entire mine when deemed necessary. 
No other work shall be performed during this time except to correct 
outstanding violations.

     Failure to Pay Penalty in a Timely Manner

    1. If no notice of contest is filed in 30 days, the citation is 
considered final and not subject to appeal.
    2. MSHA may cease production at the operation for failure to pay 

     Factors for Assessing Penalties

    1. Assessment will be based on the size of the operator, not the 
size of the mine.
    2. The ability for the operator to stay in business will no longer 
be factored in.

     105(c) discrimination penalties will be $10,000 to 
$100,000 for each occurrence.
     107(a) imminent danger citation requires immediate 
withdrawal of all miners until the condition is corrected.
     Establishment of a new Emergency Call Center manned 24/7 
by people with mining knowledge.
     Creation of a Mine Map Repository at the DOL and a Web 
site for public access.
    Having dedicated the better part of my career to improving miners' 
health and safety, I have investigated many tragedies, visited many 
injured miners, and consoled many grieving family members. We can 
appreciate the improvements that have been made in the last 2 years, 
but so much more is needed.
    Our job is not yet completed. The tendency to move down the path of 
least resistance, even at the expense of miners' lives, still surfaces 
at times. The mine operator mentality by MSHA's top officials can still 
be witnessed in the drafting of regulations. MSHA still allows mine 
operators to ventilate working sections with belt air, and non-
flammable belts are still not required. Today there are no fully-
reliable systems that would enable miners to communicate with the 
surface or vice versa in the event of an emergency. Many operators 
would not be able to locate their trapped miners. This is unacceptable.
    It is time for bolder action and bigger steps. MSHA must be 
convinced or directed to implement all the provisions of the MINER Act, 
as Congress mandated. And the Senate should pass the S-MINER Act. These 
are the keys to protecting the Nation's miners. As members of this 
committee and of Congress are in the best position to insist that MSHA 
utilize all the tools you have given the Agency.
    Madam Chairman and members of the committee, we thank you for your 
help and interest in improving miners' health and safety.

    Senator Murray. Thank you very much. We're not going 
    Mr. Watzman.


    Mr. Watzman. Thank you, Senator Murray, Senator Isakson, 
Senator Rockefeller.
    We appreciate the opportunity to appear before you again to 
discuss efforts to improve mine safety and the progress made 
since passage of the MINER Act.
    Since passage of the act, the industry's moved aggressively 
to identify technology that satisfies the law's requirements as 
quickly as possible. We continue to make substantial 
investments in new safety equipment and practices to meet the 
expectations of the act.
    We began a process shortly after the passage of the act to 
survey our members who produce approximately 65 percent of the 
underground coal to document the success that they're making in 
meeting the mandates of the act and there's a chart appended to 
my written statement for your review, but let me touch upon a 
couple of them.
    Since passage of the act, 150,000 new SCSRs have been 
brought into the mines and 45,000 more will be brought into the 
mines as they're produced. Fifty-five million dollars has 
already been spent on communication and tracking technology and 
that number will grow as MSHA issues guidance on what is an 
acceptable system.
    Nine hundred and seven hardened rescue chambers are 
ordered, of which two hundred have been delivered to the mines 
and that occurred in advance of the proposed rule that MSHA 
issued earlier this week. Forty-five new mine rescue teams have 
been established and more are on the way.
    These numbers simply are one quantifiable measurement of 
our commitment to the MINER Act. All told, we estimate that the 
underground coal mining industry has committed more than $500 
million to comply with the MINER Act requirements and this is 
only the beginning.
    Beyond the actions that we've taken to comply with Federal 
and State rules, we have and continue to undertake several 
voluntary initiatives. We produced a Guide to Management of 
Mine Sites Emergency Preparedness Activities and we 
disseminated that throughout the industry.
    Recently, we completed a protocol for crisis communication 
with family members and the media which we'd like to submit for 
the record. Similarly, this has been disseminated throughout 
the industry and is available on the NMA Web site, and we 
continue to work with NIOSH to develop risk-based management 
tools and templates to instill, as you said, Senator 
Rockefeller, a culture of prevention at all mining operations.
    These activities will be a focal point of Mine Expo 
International which NMA will sponsor later this year. This 
quadrennial gathering of mining experts from around the world 
will showcase new safety technologies and the technical 
sessions and accompanying workshops will highlight new 
techniques and applications to expedite implementation of 
safety technology and the transfer of that technology 
    Madam Chairman, we've accomplished much in the short 
timeframe but more work needs to be done. As you highlighted 
earlier, this year we've experienced 15 coal mine fatalities, 
each of which are tragic and unique. We've looked at these and 
have been unable to identify any trends or commonalities across 
them and will continue to examine what we can do as a mining 
community to end this.
    We appreciate your continued interest and the interest of 
the members of this subcommittee to miner safety and health and 
especially your support for funding to develop the technology 
and tools that will prevent future mine accidents.
    Thank you, and I'd be happy to answer any questions.
    [The prepared statement of Mr. Watzman follows:]
                  Prepared Statement of Bruce Watzman*
    Thank you Madam Chairman. My name is Bruce Watzman, and I am the 
vice president of safety, health and human resources for the National 
Mining Association (NMA).
    * The National Mining Association's (NMA) Media and Community 
Crisis Communication Planning Template included with this statement may 
be found at the following Web site: www
    NMA and its member companies appreciate the opportunity to again 
discuss with the subcommittee the industry's progress in implementing 
the Mine Improvement and New Emergency Response (MINER) Act of 2006, 
the challenges that remain and voluntary steps we are initiating to 
exceed the expectations of the MINE Act.
    Our objective remains, as it has been all along, to ensure that 
every miner returns home safely to their loved ones every day. It is 
this single purpose that has guided the actions of NMA as we strive to 
find and deploy the new technologies and techniques that will improve 
the protection of underground coal miners.
                               miner act
    NMA supported the MINER Act and we continue to believe that its 
core requirements are sound. The requirements 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.
    The industry continues to make substantial investments in safety 
equipment and practices to meet the expectations of the MINER Act. 
Survey data of NMA members, representing about 65 percent of all 
underground coal production, indicate actual and planned investments in 
the following areas for 2007-2008:

     $70 million to purchase 150,000 additional self-contained 
self-rescuers (SCSRs) and training units.
     $55 million in communication and tracking systems.
     $53 million for facilities to maintain trapped miners (752 
in total).
     $70 million to enhance the integrity of seals.
     $19 million to establish and equip 45 new mine rescue 
     $60 million for safety equipment, training, and manpower 
beyond the mandates of the MINER Act.

    These numbers simply reflect one quantifiable measurement of our 
commitment to the MINER Act. All told we estimate that all of 
underground coal mining has committed more than $500 million to comply 
with the MINER Act requirements. This 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.
                           voluntary actions
    Beyond the actions we've taken to comply with Federal and State 
rules we have and continue to undertake several voluntary initiatives 
to enhance miner safety.
    In 2006 NMA established the Mine Safety Technology and Training 
Commission (MSTTC) to undertake a study of new technologies, procedures 
and training techniques that can further enhance safety in the Nation's 
underground coal mines.
    The commission's report contains unanimously adopted 75 
recommendations that address the areas of communications technology, 
emergency preparedness, response and rescue procedures, training, and 
escape and protection strategies. The central theme of the commission's 
recommendations focuses on a systematic and comprehensive risk 
assessment-based approach toward prevention.
    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 working with the 
National Institute for Occupational Safety and Health (NIOSH) to 
develop risk-based management tools and templates to assist us in 
implementing the central recommendation of the commission. The use of 
risk-analysis/risk-management, while not a common practice throughout 
the underground coal mining 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. The effort builds upon a 
series of pilot projects undertaken last year to introduce and examine 
the use of risk assessment at 10 underground mines.
    Risk assessment and management are well-established practices that 
are employed in many industrial settings. Our goal is to formalize this 
process for use throughout mining so that we can identify, eliminate 
and manage conditions or practices that have the greatest potential to 
cause injury. In so doing we hope to develop a system that recognizes 
the MSTTC objective to foster an approach that is ``founded on the 
establishment of a value-based culture of prevention that focuses all 
employees on the prevention of all accidents and injuries.''
    Working with representatives of the Mine Safety and Health 
Administration (MSHA) and NIOSH, we 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 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.
    Working with the industry's communication specialists and outside 
experts we have developed 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 provides a framework for 
effective communications and cooperation with MSHA, as envisioned by 
the MINER Act and is being widely disseminated throughout the industry.
    These activities will be a focal point at MINExpo 
International2008, which NMA will sponsor later this year. This 
quadrennial gathering of mining experts from around the world will 
showcase new safety technologies and the technical sessions and 
accompanying workshops will highlight new techniques and applications 
to expedite technology transfer.
                    creating a culture of prevention
    We have so far commented on technical improvements and these are 
clearly important. But perhaps the most important element in improving 
safety is the relentless focus on a ``culture of prevention.'' For 
successful companies a culture of prevention exists at every level of 
the organization. In those companies with outstanding safety 
performance, accident prevention is emphasized at every meeting, at 
every shift at the mines and is an integral part of the business model. 
This is a common theme among the winners of the annual Sentinels of 
Safety award.
    In its 2006 report, Improving Mine Safety Technology and Training: 
Establishing U.S. Global Leadership, the MSTT stated that:

          Compliance is an important aspect of prevention, but it is 
        more important to realize that it is only a starting point in a 
        more comprehensive process of risk management.
          A critical action to ensure success of the process for any 
        company is the creation of a ``culture of prevention'' that 
        focuses all employees on the prevention of all accidents and 
        injuries. . . . In essence the process moves the organization 
        from a culture of reaction to a culture of prevention. Rather 
        than responding to an accident or injury that has occurred, the 
        company proactively addresses perceived potential problem areas 
        before they occur.

    To achieve these goals we will be working with recognized experts 
to develop a safety management system that encourages integration of 
safety and accident prevention into the entire suite of business 
management systems. Again, building upon pilot work cooperatively 
conducted with NIOSH, we will use MINExpo to showcase the results of 
this work and to provide the tools for all companies to embrace this as 
part of their normal operating practice.
    Our objective is prevention of accidents, injuries and illnesses 
and reinforcing a culture of prevention. Decisions will be based upon 
sound science, recognizing technologic limits, where they exist. By 
developing risk-based safety priorities we will identify and focus 
resources on conditions that most directly place miners in potential 
peril. Our goal is to foster industry-wide partnerships among coal 
companies and equipment and service supply providers for the research, 
development and commercialization of new practices and technology that 
will raise the performance bar industry-wide.
    Madam Chairman we have accomplished much, but more work remains. 
With your help and the vital support you provide to the mining research 
program at NIOSH we will achieve our shared goal--to ensure that every 
miner returns home safely to their loved ones every day.
    On behalf of the members of the National Mining Association, thank 
you for the opportunity to give our perspective on this vital public 
policy matter.
    I would be happy to answer any questions.

      NMA--Mine Safety Improvements: Progress Facts Since Feb. 2006
Self-contained self-rescuers..............  More than 150,000 new SCSRs
                                             placed into service;
                                            45,000 additional units to
                                             be added.
SCSR training.............................  All underground coal miners
                                             have and will continue to
                                             receive quarterly training;
                                            More than 20,000 training
                                             units have been delivered
                                             and more than 50,000
                                             additional units are
                                             expected annually.
Emergency evacuation training.............  All underground coal miners
                                             have received training on
                                             evacuation procedures.
Evacuation aids...........................  Underground coal mines have
                                             installed lifelines;
                                            Additional SCSR caches have
                                             been placed at fixed
                                             distances in escape ways;
                                            Emergency tethers provided
                                             to link miners together.
Locating trapped miners...................  Underground coal mines have
                                             implemented systems to
                                             track miners while they are
                                             in the mine;
                                            New systems are being tested
                                             and approved for in-mine
                                            Pre-accident tracking
                                             appears doable; more R&D
                                             needed on post-accident
                                             tracking systems.
Post-accident communication...............  Underground coal mines have
                                             installed redundant
                                             communication systems in
                                             separate entries;
                                            Continuing research with
                                             NIOSH and manufacturers on
                                             the development and
                                             approval of wire-less
Sealing of abandoned areas................  Operators required to
                                             install seals more than
                                             double the strength of
                                             those previously installed.
                                            Operators have evaluated
                                             existing seals and
                                             corrected any defects
                                            Seals are being examined
                                             visually on a weekly basis.
Breathable air............................  All mines have approved
                                             plans to provide post-
                                             accident breathable air to
                                             miners awaiting rescue.
                                            907 refuge facilities
                                             ordered and being
Rescue teams..............................  45 new underground coal mine
                                             rescue teams have been
                                             added or are planned.

    Senator Murray. Thank you very much to both of you.
    Let me start with Mr. O'Dell. I'm just curious what you're 
hearing from your members as far as MSHA's compliance and 
implementation of the MINER Act. Do they say the mines are 
safer than they were 2 years ago? Are they seeing changes on 
the ground that they're conscious and aware of ?
    Mr. O'Dell. They are. They have seen improvements as far as 
some of the protections. I guess part of the frustration is 
that other parts of the MINER Act that were supposed to be 
implemented by this time haven't yet kicked in.
    It's going to be a learning process for all of us. We're a 
tough bunch of people that are kind of stubborn to change 
sometimes and so although we appreciate much of what has been 
done, we also have to adjust and be able to learn how to 
utilize those tools to benefit.
    Senator Murray. Let me go to one of the topics we talked 
about before which was the seals and Secretary Stickler talked 
about the MSHA's final rule on seals, and I understand from 
your written testimony that you have some concerns about that 
    You mentioned the use of certain materials, such as wood 
and omega blocks, being troublesome. Can you talk a little bit 
about that, maybe what your recommendations are for improving 
that rule?
    Mr. O'Dell. Yes. A few weeks ago, we found out that there 
was a seal that had been installed and it wasn't installed 
properly and we sit back and we think, you know, after all the 
concentration that's been placed on how important it is to 
place new seals into the coal mine, we had a seal that was put 
into place that wasn't mixed properly and----
    Senator Murray. This is the new one?
    Mr. O'Dell. Brand-new one. There was some internal 
combustion that took place within the seal itself. It got very 
hot. Thank God an examiner came by and felt the heat and 
identified it before anything happened.
    We need to do a better job on monitoring these seals. We've 
got a lot of old seals out there that we have to make sure that 
we continue to monitor those and what's going on behind those 
areas. I think we're putting a good tool into place. We just 
can't be so careless as to how we approach it.
    Senator Murray. Mr. Watzman, we talked about the wireless 
technologies quite a bit in the previous panel and this June 
2009 deadline.
    What are your members telling you about this requirement 
and what they're saying?
    Mr. Watzman. Well, our members aren't clear what the 
requirement is and that's what's causing heartburn today, if 
you will. There is not clear guidance. We've heard what Mr. 
Stickler said regarding what they envision as wireless 
    We don't believe by 2009 that, as Dr. Kohler said, that we 
will get to true wireless through the earth technology that 
will allow you or enable you to communicate throughout the mine 
from a single point on the surface. It may be workable when you 
have a refuge chamber or a hardened area underground where you 
can go point to point, but our members are still awaiting the 
clear guidance and direction for them so that they can begin to 
make the purchasing decisions so that they can be in compliance 
by June 2009 or shortly thereafter.
    Senator Murray. OK. You heard Mr. O'Dell's testimony a few 
minutes ago. We heard earlier Secretary Stickler this week 
report that more than 200 mine operators are automatically 
appealing 100 percent of their citations in an effort to bog 
down the system.
    I wanted to ask you if you know if this is an organized 
effort by mine operators.
    Mr. Watzman. Clearly, I don't know if it's an organized 
effort, and I would be very surprised if it is. We predicted, 
Senator, in large part that this is what would happen and it 
happens because of two changes that MSHA made.
    Historically, and Mr. O'Dell talked about the conference 
process, the conference process was after citations were 
written. It was an opportunity for MSHA, the inspector, and the 
mine operator to sit down in a nonjudicial manner to talk 
through the citations, talk about the facts of the citations 
and the details, to see if the citation is valid, whether it 
should be vacated, whether it should be downgraded, if you 
    The agency issued a policy last year that dramatically 
restricted the ability of operators to meet with the agency in 
that informal setting. So what they've had to do is they've had 
to take those citations that were worked out through the 
conference process and formally contest the validity of those 
before the Federal Mine Safety and Health Review Commission. So 
that's one element.
    The second element is that MSHA changed the rules governing 
civil penalties. They increased the significance of repeat 
violations. So violations of a de minimis nature that may have 
been paid by the operator in the past and are now counted 
toward their history. So they've had to make a determination as 
to whether or not they should merely pay the fine or whether 
they should contest the validity of that for fear that it will 
be counted in their history. That history is a point system in 
the way MSHA issues citations, and as your points go up, the 
value or the amount of the penalty increases.
    So they've increased the history. So it's the two elements 
that we believe has led to some of this. I'm unfamiliar with 
the particulars on why a company chooses one course of action 
or another course of action, but this is what we had predicted 
would occur as a result of these two actions by the agency.
    Senator Murray. Mr. O'Dell, do you want to comment on that 
at all?
    Mr. O'Dell. Let me tell you, I think it's funny. I used to 
travel with inspectors and coal operators and so after we would 
do our travel, do our inspection, we'd go outside and we'd talk 
about the citations. We would talk about it, not only during 
the time the inspection takes place but after we got outside, 
it had a pre-conference and we'd sit and we'd talk about why we 
thought it should or shouldn't be a good citation.
    I always thought that should be the end of the discussion. 
You know, the operator has an opportunity to contest it with 
the inspector, the inspector that was there, with the operator 
representative who was there, and with the miners' rep who was 
there. I mean that's the three people that observed what 
happened. That's the place where it should take place.
    This thing's got too far out of hand. I think the 
conferencing system is broke because you get too many other 
people involved that don't know what's going on. The 
inspector's not even allowed to attend the conference, to 
defend the actions that he took while he was inspecting the 
coal mine, and I think some operators, I'm not saying all--by 
the way, Bruce, thanks for calling me, Mr. O'Dell. It's usually 
some other term of endearment you address me by.
    But I think that there are other ways to do that and not 
the way we're doing it now. The system is completely screwed 
up. It needs to be fixed badly, and I do think they take 
advantage of it, the operators.
    Senator Murray. OK. Thank you for those comments.
    Senator Isakson.
    Senator Isakson. Thank you, Madam Chairman, and I apologize 
to both our witnesses. I'm going to have to go to the Floor 
after my questions and so I'm not walking out on you because I 
want to leave, I've got to get over on the Housing bill.
    OK. Something's got to give. Now I read Page 5, Mr. O'Dell, 
and Mitigating Circumstance Number 2, which I think if I read 
it right, you were referring to the operator's history of 
previous violations as being something MSHA's using to mitigate 
a fine that it might apply and then Mr. Watzman just got 
through saying that they're using history of de minimis 
violations to impact the fine that is levied.
    So one of--which one's going on?
    Mr. Watzman. I'm right, he's wrong.
    Senator Isakson. What is going on?
    Mr. O'Dell. We actually think that the history is more 
short term. They're looking at it short term. We think they 
should go back further and look at a longer history than what 
they do observe.
    Bruce says that he thinks it's been cut from what it was 
before. So I think it's important that you look at that 
history, but I think they need to look at the longer-term 
history. You can tell a lot about an operator by going back and 
seeing what they've done over the last 3-5 years.
    Senator Isakson. Well, I want to follow up on what Senator 
Murray said. I am concerned with--I mean, the number of appeals 
have gone through the roof. In fact, in many cases, it's 100 
percent of all fines levied and that does ball up the system, 
and Mr. O'Dell, you imply in Item 6 on Page 5 that ``the effect 
of the penalty on the operator's ability to continue in 
business is actually a mitigating circumstance that MSHA 
considers,'' is that correct?
    Mr. O'Dell. Yes, sir.
    Senator Isakson. Where is that--where do you find--is that 
an opinion or is that an actual mitigating circumstance?
    Mr. O'Dell. That's an opinion from us.
    Senator Isakson. OK. Well, on that question, Mr. Watzman, 
as a representative of the Mine Association, do you know of any 
circumstance where the ability of a mine operator to pay 
actually affected MSHA as to whether or not they levied a fine 
or not?
    Mr. Watzman. No, I'm not aware of any situation where 
that's applied.
    Senator Isakson. Well, my last comment before I have to go. 
Senator Rockefeller made a very insightful statement in the 
form of a question to Mr. Stickler and I want to say to both of 
you that having run a business and then also having been an 
employee of a business, the culture of safety is a 
responsibility of both the owner and operator as well as the 
organization of the labor that worked there.
    The best owner in the world in a safety detail is no good 
if the people that are employed are not practicing the 
disciplines that are required of them to be safe and vice 
versa. If the employees are working hard to be safe but the 
company's looking the other way, you're not going to have 
    So Senator Rockefeller made a very insightful statement 
that a culture of safety in the worker and in the mine operator 
is going to do more to save lives and eliminate problems than 
any volume of laws that we could pass but the laws are designed 
to encourage a culture of safety, either by fines getting the 
attention of the operator or redundant practices of the 
rebreathing systems and things like that of the workers, making 
sure they know how to operate in the event of that tragic 
    So I want to commend the Senator for bringing that term up 
because it is the best thing we could possibly do and hopefully 
the MINER Act is contributing to motivate both the worker and 
the operator to a culture of safety and a culture of 
prevention, as you referred to, Mr. Watzman.
    Thank you very much to both of you.
    Mr. O'Dell. Senator Isakson----
    Senator Isakson. Yes, sir?
    Mr. O'Dell [continuing]. The question you asked about that 
No. 6, the effect of the penalty on the operator's ability to 
continue in business, I just pulled that page up and looked at 
it again.
    I actually think that if you go to the guidelines on how 
MSHA conducts the business on this, that that's part of the 
criteria that they take into effect. I'll have to go back. I'll 
do some more research on that, but I believe it's actually in 
the criteria that they take.
    Senator Isakson. Would you please send me that, if it is or 
if it isn't, and let me know? I would appreciate it very much.
    Mr. O'Dell. Yes, sir.
    Senator Isakson. Thank you, Madam Chairman.
    Senator Murray. Thank you, Senator Isakson.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Madam Chairman. I'm just 
fascinated by this. We're going to challenge everything and 
they do challenge everything and that's the opposite of what 
leads to the culture of safety. That's where you decide you're 
going to contest everything because you're put on this earth by 
God to be enemies on anything which affects the bottom line 
and, by golly, you're going to follow that out.
    Now I just remember 20-25 years ago in West Virginia, 30 
years ago, you remember this, there wasn't a day that I picked 
up the newspaper, local newspaper in which there wasn't a 
temporary restraining order by a court brought by a company or 
by a union or whatever in which they were saying, ``we're going 
to strike'' or ``we're just going to fight this to the death.'' 
I don't know who it was, I've always speculated it was some 
Bobby Brown clone or somebody, somebody who'd grown up--the way 
the coal companies are run now by sort of Wall Street types--
and it used to be that the Bob Quinns, the people who'd come up 
as miners and fire bosses and safety people, through the mining 
system, they then ran the companies and so there was a much 
different way of looking at mining.
    But all of a sudden, you just didn't see any more TROs for 
about 15 or 20 years and it was never explained, but I know 
what happened and that is, that representatives of both sides 
said this is not a really intelligent way to approach the 
production of coal and keeping peace and each progressing our 
own purposes and so they decided that they were going to take 
every problem that came up that led to all these temporary 
restraining orders and just work them out at the face of the 
    So the operators and the coal miners and the 
representatives met at the face of the mine, underground, not 
readily accessible to the press, who would have no way of 
finding their way down there, and they worked the problems out 
because there they were face to face, surrounded by coal mining 
machinery, then much less sophisticated, and they worked them 
out and there were no more TROs. I'm hearing that and then I'm 
listening to you two, and particularly you, sir. You've got to 
challenge everything while at the same time you don't know of 
any mines that have been put out of business by this, and I'm 
just saying where is that process now? Where's that kind of 
    That's the culture of safety and it seems to me--you know, 
I'm a total carpet-bagger on this committee. I don't even 
belong here, but I'm not on it, but I'll tell you what, I'm 
going to volunteer Patty Murray and myself to come down there 
and negotiate those things if you all can't do it on this 
particular subject. I haven't actually checked with the 
Chairman, so I can't speak for her, but, I mean, it's enraging 
to hear this, fighting everything, and we've got a crisis, 
people dying.
    I'll just put that on the record. I'm not asking for an 
answer. That might be later but not now.
    Second, I was fascinated by what you said, Mr. O'Dell, 
about--because there have been increases in MSHA and NIOSH's 
budget, thanks to Patty Murray and Senator Byrd, in recent 
years. You said this very, very interesting thing about people 
who are dying to be able to do their jobs but can't because 
they're buried somewhere or they're precluded by rules and 
regulations or by written things that can't be worked out and 
all of the very worst dreams come true, bad dreams come true of 
what is called bureaucracy or--and again it's not unique to 
you, it's all over government, it's everywhere.
    The CIA fired a whole bunch of people very recently for a 
very good reason, but, boy, did that take a long time for 
something which they had done wrong and so institutions have to 
be able to allow the people who want to do the work to do the 
work and I was just very interested that you said that and I 
wondered, although I'm now 11 seconds over time, if you could 
elaborate a bit on that.
    The best people who want to do their jobs, who joined for 
the right reason, that's what public service is all about, you 
want to help people, you don't do it for the pay, that's for 
sure. So you want to do the right thing, but you're precluded 
by doing the right thing by sets of rules and regulations, the 
attitude of an administration or whatever it might be, but you 
want to break out and have a chance. Do people just kind of 
give up on that after a while? I mean, do they lose their 
morale and their sense of elan, push, aggressiveness, when they 
see that it's not working, the good ones?
    Mr. O'Dell. If I may? Yes, they do. Let me give you a 
perfect example.
    Mine inspectors that travel underground every day inspect 
coal mines, I have the utmost respect for them. You know, a lot 
of them are my good friends, but there are times because of the 
way the system is when we talked about the conferencing of the 
citations, these inspectors go underground, they try to write 
good citations which they do, and they try to do the job to 
enforce--the only thing the coal miners ask them to do is to 
enforce the law and they go and they do that.
    But at the end of the day, their work, they get their legs 
cut out from underneath of them because of this conferencing 
process that this whole thing goes through. This coal mine 
inspector writes a citation that may be vacated. It may be the 
fine reduced or whatever, but it's different than what he saw 
when he was there and then this coal mine inspector has to go 
before his supervisor and that supervisor's going to judge what 
he does. He's going to evaluate what kind of--and if he has X 
number of citations that have been vacated or reduced, his 
supervisor's going to think he's not doing his job and he'll 
get a poor evaluation and that beats that inspector down and so 
then that inspector who come out like a cowboy with guns on 
both hips just kind of doesn't want to rock the boat, he wants 
to keep everybody happy.
    That happens. That's the reality. That really happens. 
People don't want to hear it. NIOSH--people don't want to talk 
about what's going on with NIOSH. They have a good group of 
people in coal, but they have a budget that on the front page, 
the budget looks very good, but there's this administrative 
cost that CDC takes out and people are going to pass out when I 
say this but it's a thing that nobody likes to talk about. They 
take this large amount of money out which reduces the amount of 
money that they're allowed to use for what its full purpose was 
to begin with and so they know that what they thought they had 
to be able to operate with, they have less and they're under a 
timeline and it's just, you know, some of that takes place.
    It's tough. We still have good people in NIOSH. We still 
have good people in MSHA, I believe that. We have a lot of good 
coal miners. We have a lot of good operators out there today, 
too, as well, and Senator, I remember what went on in West 
Virginia and what you're talking about. I was a student of 
yours at Wesleyan. Right after that, I went to Fairmont State, 
finished up, and went to work in the coal mines. I worked 
midnight shift while I went to school and that's what we did. 
We talked at the face. How can we work this out? How can we 
take care of business? What does it take for us to do what we 
got to do?
    We realized--we got smarter that it wasn't smart business 
for us to be in one barricade and the operator be in another 
barricade and shoot at each other. We realized for us to be 
successful and to be able to go forward, we were going to have 
to work together and we do that, Bruce and I, we joke about it 
with each other, Dave Young from BCLA, we all--there's a group 
of us that sit down and we try to work these issues out.
    So we are actually doing that. We're trying to make it a 
better place for everybody. I don't know if it made sense, what 
I said.
    Senator Rockefeller. It does. Thank you. Thank you, Madam 
Chairman, and I apologize again for going over.
    Senator Murray. Absolutely not a problem. You can carpetbag 
any time on this topic.
    I don't have any other questions. Senator Rockefeller, do 
    Well, I want to thank all of our witnesses today. We will 
leave the hearing record open for 10 days for any additional 
questions and responses, and with that, this hearing of the 
subcommittee is adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

   Prepared Statement of James L. Weeks, ScD, CIH, Consultant to the 
United Mine Workers of America, Member of the Technical Study Panel on 
                                Belt Air
    Senator Murray and other members of the committee, thank you for 
holding this hearing and for the opportunity to discuss the work of the 
Technical Study Panel on Belt Air and other important issues concerning 
miners' health and safety. I want to discuss some recommendations that 
were made by the Technical Study Panel and bring to your attention some 
recent developments concerning black lung.
                   technical study panel--highlights
    First, the technical study panel recommendations. Altogether, we 
made 20 recommendations covering a variety of topics but I wish to 
focus on two of them: first, that MSHA revise and re-propose a rule 
requiring mine operators to use flame resistant conveyor belts and, 
second, that mines that use belt air be held to a higher standard.
Adopt the BELT Test
    It is important to give some historical background to this 
recommendation. The Mine Act prohibits the use of belt air as an 
interim standard. The reason is that conveyor belts are a relatively 
common source of fires--15 percent to 20 percent of all fires are belt 
fires. If the belt entry is used to provide fresh air to the face and 
if there is a fire in the belt entry, the smoke will go directly to the 
face area, threatening workers, and the belt entry itself will become 
unavailable as an escape route. In addition, the concentration of 
respirable dust in the belt entry is higher than it is in other entries 
used for intake air and this poses some problems controlling respirable 
    Following numerous petitions from mine operators MSHA promulgated 
its rule permitting belt air to be used for face ventilation. In order 
to compensate for the risk of smoke from a belt fire going to the face, 
it required operators to install an Atmospheric Monitoring Systems to 
provide early warning of a fire. The AMS is a valuable tool but its 
principal weakness is that it only detects fires; it does not prevent 
them. And it was not because feasible and effective means of fire 
prevention were not available.
    From 1970 to 1999, there were about a hundred belt fires. Every one 
of them occurred with conveyor belt material that had been ``approved'' 
by MSHA as flame resistant. The test protocol, the so-called 2-G test 
that MSHA used had been in place since about 1955. One thing we expect 
from testing materials for flammability is that those materials not 
burn. By this measure, the 2-G test is a failure. Its shortcomings had 
been recognized since about 1967. Consequently, the Bureau of Mines and 
later NIOSH, often with MSHA's participation, developed a new test 
protocol, the so-called Belt Evaluation Laboratory Test (BELT) that was 
more rigorous, more in line with international standards, and more 
closely replicated in-mine conditions.
    MSHA initiated a rulemaking to adopt this test in 1992, determined 
it was feasible in 1999, but withdrew its proposal in 2002. MSHA gave 
as its rationale for removing the proposed rule that the frequency of 
belt fires had decreased. The number of belt fires had decreased but so 
has the number of mines and, it follows, the number of belts. The 
number of belt fires per thousand mines has not decreased at all.
    The Study Panel recommends that MSHA renew this rulemaking 
(Recommendation #1). This is the third time a committee has made this 
recommendation. MSHA's internal Belt Entry Ventilation Review committee 
and the Belt Air Advisory Committee both made the same recommendation. 
This would improve the belt air rule by preventing fires in addition to 
detecting them. And if applied to all belts, it would help prevent belt 
fires regardless of whether the operator was using belt air.
Adopt the Drum Friction Test
    Related to this recommendation, the Study Panel also recommended 
(Recommendation #2)--in a somewhat mangled way that only committee 
compromises can do--that MSHA include a drum friction test in its 
testing and approval of belts. Friction is a common source of belt 
ignition but it is not part of the BELT test protocol. The drum 
friction test is designed to test whether a belt will ignite when 
subjected to friction. Other coal mining countries in the developed 
economies use a drum friction test.
Hold Mines That Use Belt Air to a Higher Standard
    We also recommended (Recommendations #6 and #7) that mines that use 
belt air should be ``held to a higher standard.'' The Report says, ``. 
. . belt air is sound in some situations,'' (p. 66) implying there are 
other situations when it is not sound. The report goes on to mention 
two specific conditions under which a valid argument could be used. We 
visited mines where these conditions existed. Very deep mines, for 
example, have significant roof control problems and using belt air 
allows them to reduce the number of entries and thereby improve roof 
control. Some other mines have significant problems with gas and for 
them, using belt air allows them to get more air into the mine to 
dilute and remove gas. There is a tradeoff between one safety problem 
and another. If an operator cannot balance the hazard created by using 
belt air by bringing another hazard under control, it is not a good 
practice. This is how it is in the report:

          ``In mines outside these two categories [deep mines and gassy 
        mines], it is not always obvious that belt air should be used. 
        The reason for this conclusion is very simple. The use of belt 
        air in the working section allows combustion products produced 
        by fires or explosions in the belt entry to reach the working 
        section. If using belt air in the working section does not 
        reduce or eliminate other conditions deemed to be more 
        hazardous, there is no justification for using [it] belt air in 
        the working section. The Technical Study Panel therefore 
        suggests that the process for granting permission to use belt 
        air in the working section become part of the ventilation plan 
        review. In addition the Panel recommends that the MSHA District 
        Manager be charged with the responsibility of carefully 
        scrutinizing each plan for using belt air in the working 
        section and denying those that do not have evidence of a safer 
        mining environment than not using belt air at the face. In 
        addition, the Panel recommends that the District Manager be 
        charged with delivering a decision on the ventilation plan 
        within 6 months.'' (p. 66-67)
          The Panel did not give a blanket endorsement for using belt 
               the prevalence of black lung is increasing
    Now I would like to turn to a second topic, black lung. For the 
past 30 years, the prevalence of black lung has gone down. However, the 
most recent data from NIOSH shows that the prevalence of black lung, 
from 2000 to 2005, has doubled compared to the period from 1990-1995. 
This is a very disturbing trend.
    Why is it happening? It is not because we do not have feasible and 
effective controls. The obvious reason is that miners are breathing too 
much dust. But this merely begs the question: How? There are several 
theories--none validated. Perhaps the 2 mg/m\3\ standard is inadequate. 
Perhaps there is lack of compliance. The two explanations that make the 
most sense to me are that miners are working longer shifts and they are 
being exposed to more quartz dust.
    In 1980, miners worked about 1,700 hours per year. Hours steadily 
increased over the next two decades so that by 2000 they were working 
close to 2,200 hours per year. If they work longer shifts, they inhale 
more dust. Longer shifts also reduce the time between shifts that is 
needed for lungs to remove dust. Meanwhile, MSHA is enforcing, by 
regulation, (30 CFR 70.201(b)) only 8 hours per shift. They should, in 
my opinion, measure dust concentration for an entire shift and make a 
proportional reduction in the exposure limit in order to make it 
equivalent to 2 mg/m\3\ for 8 hours.
    Miners may also be exposed to more quartz dust. Quartz is the most 
common form of silica and, milligram for milligram, is much more toxic 
than is coal dust. It is present in most rock strata that surrounds 
coal seams. Exposure occurs to roof bolters, when thinner seams are 
mined, and in other ways. With thin seams, miners cut more roof and 
more bottom--where the quartz is. More could be done--without 
rulemaking--to control miners' exposure to quartz.
    But whatever the exact cause, I find this increase in black lung 
unacceptable and I think we need a concerted effort to find the causes 
and turn this trend around.

    [Whereupon, at 11:47 a.m., the hearing was adjourned.]