[Senate Hearing 110-464]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-464
 
          IMPROVING MINE SAFETY: ONE YEAR AFTER SAGO AND ALMA

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


                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            SPECIAL HEARING

                   FEBRUARY 28, 2007--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations


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

                               __________




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                      COMMITTEE ON APPROPRIATIONS

                ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont            TED STEVENS, Alaska
TOM HARKIN, Iowa                     ARLEN SPECTER, Pennsylvania
BARBARA A. MIKULSKI, Maryland        PETE V. DOMENICI, New Mexico
HERB KOHL, Wisconsin                 CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             MITCH McCONNELL, Kentucky
BYRON L. DORGAN, North Dakota        RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California         JUDD GREGG, New Hampshire
RICHARD J. DURBIN, Illinois          ROBERT F. BENNETT, Utah
TIM JOHNSON, South Dakota            LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              SAM BROWNBACK, Kansas
FRANK R. LAUTENBERG, New Jersey      WAYNE ALLARD, Colorado
BEN NELSON, Nebraska                 LAMAR ALEXANDER, Tennessee
                    Charles Kieffer, Staff Director
                  Bruce Evans, Minority Staff Director
                                 ------                                

 Subcommittee on Departments of Labor, Health and Human Services, and 
                    Education, and Related Agencies

                       TOM HARKIN, Iowa, Chairman
DANIEL K. INOUYE, Hawaii             ARLEN SPECTER, Pennsylvania
HERB KOHL, Wisconsin                 THAD COCHRAN, Mississippi
PATTY MURRAY, Washington             JUDD GREGG, New Hampshire
MARY L. LANDRIEU, Louisiana          LARRY CRAIG, Idaho
RICHARD J. DURBIN, Illinois          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              TED STEVENS, Alaska
FRANK R. LAUTENBERG, New Jersey      RICHARD C. SHELBY, Alabama
ROBERT C. BYRD, West Virginia, (ex 
    officio)
                           Professional Staff
                              Ellen Murray
                              Erik Fatemi
                              Mark Laisch
                            Adrienne Hallett
                             Lisa Bernhardt
                       Bettilou Taylor (Minority)
                    Sudip Shrikant Parikh (Minority)

                         Administrative Support
                              Teri Curtin
                         Jeff Kratz (Minority)


                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening statement of Senator Tom Harkin..........................     1
Statement of Senator Robert C. Byrd..............................     3
Opening statement of Senator Arlen Specter.......................     5
Statement of Senator Patty Murray................................     7
Statement of Hon. Richard E. Stickler, Assistant Secretary, Mine 
  Safety and Health Administration, Department of Labor..........     8
    Prepared statement...........................................    10
Statement of Dr. John Howard, Director, National Institute for 
  Occupational Safety and Health, Department of Health and Human 
  Services.......................................................    14
    Prepared statement...........................................    15
Statement of Cecil Roberts, international president, United Mine 
  Workers of America, Washington, DC.............................    39
    Prepared statement...........................................    40
Statement of Bruce Watzman, vice-president, National Mining 
  Association....................................................    45
    Prepared statement...........................................    47
Statement of J. Davitt McAteer, esquire, vice president of 
  sponsored programs, Wheeling Jesuit University, Shephardstown, 
  West Virginia..................................................    50
    Prepared statement...........................................    52
Statement of Chris R. Hamilton, senior vice president, West 
  Virginia Coal Association, Charleston, West Virginia...........    55
    Prepared statement...........................................    57
Questions submitted by Senator Tom Harkin........................    70
Question submitted by Senator Robert C. Byrd.....................    80


          IMPROVING MINE SAFETY: ONE YEAR AFTER SAGO AND ALMA

                              ----------                              


                      WEDNESDAY, FEBRUARY 28, 2007

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 2:15 p.m., in room SD-124, Dirksen 
Senate Office Building, Hon. Tom Harkin (chairman) presiding.
    Present: Senators Harkin, Murray, Byrd, Specter, and 
Shelby.


                opening statement of senator tom harkin


    Senator Harkin. Good afternoon. The Appropriations 
Subcommittee on Labor, Health and Human Services, and 
Education, and Related Agencies will now come to order for this 
hearing on mine safety.
    I'm happy to convene this hearing in response to a request 
from Senator Byrd, the chairman of the full Appropriations 
Committee.
    At the outset, I want to say that Senator Byrd has no peer, 
when it comes to improving the health and the safety of our 
Nation's miners. In response to his leadership, our 
subcommittee included $302 million in the fiscal year 2007 
Joint Funding Resolution for the Mine Safety and Health 
Administration, MSHA. This amount is $24.5 million more than 
MSHA would have gotten without his efforts, and $14 million 
more than the President's budget request.
    Last year, Senator Byrd pushed for supplemental 
appropriations of $25.6 million for MSHA and $10 million for 
the National Institute for Occupational Safety and Health 
(NIOSH)--funding required to hire more coal inspectors and push 
the development of technologies that can improve the working 
conditions of miners.
    In addition, Senator Byrd led the Congress in passing the 
MINER Act, the most significant piece of mine safety 
legislation passed in the last 30 years.
    Earlier this month, Senator Byrd made an outstanding speech 
about coal mining on the Senate Floor, in which he quoted the 
great labor leader, John L. Lewis. I wondered at the time if 
the President pro tem of the Senate knew--I'm sure he does, 
because he's very knowledgeable about these things--but not a 
lot of people know that John L. Lewis was born and raised, and 
began to mine coal in the State of Iowa. Not too many people--
I've won more beers at bars with miners on that little tidbit 
of information than anything you can imagine. We have the John 
L. Lewis museum, in Lucas, Iowa--it's a wonderful museum. About 
all of the early days of coal mining in this country. At that 
time, Iowa was one of the leading coal-producing States in the 
country. A lot of the Welsh tie-ins, the Slovenes, my mother 
was an immigrant, her family came over to mine coal, that kind 
of thing.
    My father started mining coal in Iowa sometime around 1910. 
Now, of course, I wasn't born until after he'd finished--he 
worked in the mines about 23 years. Then the Depression hit. He 
tried a little bit of farming, and lost his farm in the 
Depression. Then he came back, actually, and worked a little 
bit, when the mine came back right at the beginning of World 
War II.
    But I can remember, as a little kid, my father and some of 
his buddies, his friends that all worked in the coal mines, 
sitting around, talking about it, and what it was like. As a 
little kid, listening to this, I can still remember how scary 
it was--about going down in this rickety, old elevator, how 
they would pump air, manually, pump air down into the mine. I 
still, well I had until recently, his old carbide lantern, you 
know, the old carbide lanterns they would wear. How they would 
go out, and they'd go down in the mine before the sun came up, 
and they would come up after the sun went down. My dad, and 
those guys, sometimes would go for weeks without ever seeing 
the sunshine. They lost a lot of people, working in those coal 
mines.
    Well, anyway, just an aside, I didn't mean to get into all 
that. But anyway, that just made an impression on me, growing 
up. I've just always had a feeling about miners in this 
country, and the kind of work they do, and the kind of lives 
they lead. If it weren't for the miners of this country, we 
wouldn't have the kind of society--the powered generation. The 
coal that was used to heat our homes--to make our great 
factories, our steel mills that produced all the things we used 
World War II, our electric lighting, all came from coal.
    So, it's safe to say, that on the backs of our miners, we 
built America. So I'm proud to have come from that line miners.
    Well, it's been more than 1 year since the tragedies at the 
Sago and Alma Mines. Despite all of the heightened focus on 
safety after those events, another 33 mining families lost a 
loved one during the remainder of 2006. Even after Sago and 
Alma, we did no better protecting miners. Well, this has got to 
change.
    As a son of a coal miner, my heart goes out to these 
families, as does my commitment to follow the lead of Senator 
Byrd, and try to find a way to prevent another needless loss of 
life.
    When my father started mining coal in Iowa around 1910, 
there was one fatality--at least this is what my research 
says--1 fatality for every 257 miners. In 2006, that rate was 1 
death for every 2,537 miners, so that's a pretty significant 
improvement over 100 years.
    So, we think about how far we've come, but think about how 
far we do need to go yet, with technology that can help us. 
There's no reason why we can't communicate safely and 
effectively with miners underground, after an accident. Know 
where they are through tracking technology.
    I'm disappointed that MSHA's approved only three additional 
communication and tracking systems since last year. Why is 
there not a greater sense of urgency about getting this 
technology tested and approved, and why the delay? Why haven't 
coal companies installed better communications systems that are 
currently available? The National Mining Association's report 
last year recommended that mines take this step, until new 
technologies are available.
    Well, as I've outlined, Congress has taken significant 
steps, thanks to Senator Byrd, to give the administration the 
resources and tools it needs. Well, the administration must 
respond by delivering the kind of results that mining families 
across the country expect and deserve.
    Before I call on Senator Byrd, I'd like to recognize my 
fellow Senator here, Senator Specter, for his vital role. As we 
continue--as he has so many times said--the seamless passing of 
this gavel, which has happened several times in the last 20 
years, between Senator Specter and me.
    It was under his chairmanship, last year, that this 
important supplemental appropriations was enacted, that I just 
spoke about. I can say this from both personal experience, and 
being a good friend of Senator Specter's, that he is a true 
friend to miners in Pennsylvania, and the United States. His 
legislation was crucial in forging the bipartisan MINER Act, 
which we passed last June. So, I'm flanked by two great 
supporters of our miners in this Country, and I'm proud to be 
associated with both of them.
    With that, I would turn to the chairman of our committee, 
and my great friend--a friend to all miners--Senator Byrd, from 
the State of West Virginia.


                  statement of senator robert c. byrd


    Senator Byrd. I defer to the Senator from Pennsylvania.
    Senator Specter. No, no, I defer to you, Senator Byrd. 
We're going to play Gaston and Alphonse, but I'll follow you, 
Senator Byrd.
    Senator Byrd. Thank you for schedule this hearing in 
response to my request. Last year, Senator Specter did the same 
for me in the days immediately after the Sago tragedy. I 
compliment, and thank, both of you for your courtesies, and for 
the work that you do on this subcommittee, and for our Nation's 
coal miners.
    I welcome our witnesses--Richard Stickler from MSHA, Dr. 
John Howard from NIOSH, Davitt McAteer from Wheeling Jesuit 
University, Chris Hamilton from the West Virginia Coal 
Association, Bruce Watzman from the National Coal Mining 
Association, and the one and only--the one and only--Cecil 
Roberts, from the United Mine Workers of America. Thank you for 
sharing your expertise--your knowledge--this afternoon.
    I grew up in the coal fields of Southern West Virginia. My 
dad was a coal miner. He belonged to the United Mine Workers, 
Local 5771. I married a coal miner's daughter, she's an angel 
in heaven today. My brother-in-law died of silicosis, black 
lung, and his father was killed in a slate fall, Walker Minton. 
When I speak about coal miners and their safety underground, I 
am speaking about my family. I am speaking from the heart.
    Forty-seven coal miners perished last year. Half of them, 
in West Virginia. Our Nation mourned when 12 miners perished at 
the Sago Mine in Upshur County, West Virginia. It watched in 
disbelief, as two more miners perished. They succumbed to an 
underground fire in the Alma Mine in Logan County. Logan 
County, West Virginia.
    Congressional hearings revealed that the Mine Safety and 
Health Administration, MSHA, had been lax in communications 
equipment. Emergency preparedness and mine rescue had been 
allowed to fall by the wayside. The Federal Mine Safety budget 
had been eroded. Egregious and habitual violators were getting 
away with slaps on the wrist.
    It is a tragedy whenever miners perish in the coal fields. 
It is unforgivable when those deaths could have been prevented, 
like those at Sago and Alma, last year.
    The Coal and Mine Acts are specific about the Department of 
Labor responsibility for achieving the highest degree of health 
and safety protection for the Nation's coal miners, for the 
miner. How frustrating it is to listen to the Department drone 
on about so-called ``compliance assistance initiatives'' when 
miners are dying in the coal fields? How infuriating it is to 
watch MSHA issue regulations that actually weaken statutory 
protections.
    The agency and Department charged with protecting our 
Nation's coal miners exacerbated the dangers in the coal fields 
in the years, the long years, before Sago and Alma. Good work 
and the good intentions of so many dedicated public servants at 
the Department of Labor and MSHA were undermined by their own 
political leadership.
    Last year, the Congress had to pass the MINER Act, in order 
to force the Department of Labor to do its job. In addition, 
with the support of Senators Harkin, and Specter--Senators 
Harkin and Specter have secured $36 million for MSHA to hire 
additional safety inspectors, and for NIOSH to expedite the 
hiring and the development--the hiring of men, and the 
development of the emergency safety equipment.
    The President has requested additional funds for the 
Department of Labor to continue the hiring of safety inspectors 
in the fiscal year 2008. However, the President's budget does 
not include additional funds for NIOSH. The President's budget 
does not--N-O-T--include additional funds for the development 
of the essential emergency breathing, communications equipment. 
The President's budget does not include additional funds to 
further test, and to strengthen seals. The President's budget 
does not include additional funds to develop refuge chambers. 
The President's budget does not include additional funds to 
improve mine rescue training. These omissions are glaring, 
they're inexcusable, and they must be remedied.
    Two deaths in Southern West Virginia this year, serve as a 
somber reminder that the crisis in the coal fields is not over. 
We must seek opportunities to get ahead of the dangers. We must 
ask the question, the question--the question, repeatedly, if 
necessary. What additional resources are needed to protect our 
Nation's miners?
    I look forward to hearing the answers to that question from 
our witnesses.
    Thank you, Mr. Chairman.
    Senator Harkin. Thank you, Mr. Chairman.
    Senator Specter.


               opening statement of senator arlen specter


    Senator Specter. Thank you, Mr. Chairman. It is an honor to 
appear on this panel with the distinguished senior Senator of 
the U.S. Senate, Senator Byrd, as well as my colleague, Senator 
Harkin, the chairman, and Senator Murray.
    There's nothing like being chairman of the Appropriations 
Committee. Senator Byrd commented about the $36 million he 
added in the past to, for additional inspectors, we just passed 
a continuing resolution to add an additional $24.5 million. 
Senator Byrd was elected for his 9th term last year. I'm only 
one spot away from being the senior Republican on the 
committee, and as the gavels shift back and forth, as my 
distinguished colleague Senator Harkin said, we have had shifts 
of the gavel, and it's seamless, and I look forward, one day, 
to being chairman of the Appropriations Committee.
    Senator Byrd. I look forward to being at your elbow.
    Senator Specter. Senator Byrd makes a reference to being at 
my elbow as the ranking Democrat--we would make a tremendous 
team. Anybody teamed up with Robert Byrd would make a 
tremendous team. But if, as and when I become chairman, the 
coal miners--will have an advocate--I won't say equal to--but a 
very strong advocate.
    When I chaired the subcommittee last year, again, at 
Senator Byrd's request, we had a hearing on January 23, after 
the Sago Mine incident. We had a accident at the Quecreek Mine, 
Somerset County, Pennsylvania. I convened a field hearing on 
October 21, 2002, and we have pressed very hard to get adequate 
funding.
    But, I'm distressed to note that there was a report by the 
House Committee on Education and Labor, just released 
yesterday, which came to the conclusion that the U.S. Mine 
Safety and Health Administration, ``is moving too slowly,'' to 
make needed safety improvements for the Nation's coal miners. 
That has to be corrected, that has to be acted upon.
    When Senator Byrd went through a long list of items which 
were inadequately funded, I can tell you that he and Senator 
Harkin, Senator Murray and others as well as myself, will make 
every effort to restore them, and with the chairman of the 
Appropriations Committee on board, I think we will restore 
them.
    Just a comment or two about the Assistant Secretary for 
Labor and Mine Safety and Health. We did not have the 
confirmation process concluded last year for Mr. Richard 
Stickler, but he received a recess appointment, and I want to 
put in the record a letter which I wrote to Mr. Stickler, dated 
November 1, 2006. Especially the handwritten message I wrote at 
the bottom, ``I urge you to become a forceful advocate for 
adequate mine safety funding.'' I want to put in the record Mr. 
Stickler's response to me, dated December 6, and I think in the 
vernacular, Mr. Stickler, you're on the spot. You have to 
perform. We'll be watching you very closely.
    May the record show that Mr. Stickler's nodding in the 
affirmative.
    [The information follows:]

    
    
    
    
    Senator Specter. Thank you, Mr. Chairman.
    Senator Harkin. Thank you, Senator Specter.
    Senator Murray.


                   statement of senator patty murray


    Senator Murray. Thank you very much, Mr. Chairman, for 
calling this hearing. It's an honor to be here with this panel 
today, who I know speak from their heart when it comes to this 
issue. I have another hearing I have to go to, but I did want 
to come today and speak, just quickly, about the importance of 
properly implementing and enforcing the MINER Act. Because, 
like all of us here, I was very shocked and saddened by the 
tragic events last year at Sago and Alma. Listening to the 
widows and the family members of the miners talk about the loss 
of their loved ones, really compelled me to work with all of 
you to do the best job we could do.
    I especially want to thank Senator Byrd for his work last 
year, along with Senators Kennedy, Rockefeller, and Enzi, in 
quickly putting together legislation that is the most sweeping 
changes in mine legislation in a generation, and getting that 
through the Congress and to the President's desk for a 
signature. The act requires long-overdue improvements in miner 
communications, it increased the supply and access to oxygen 
for our miners, and it better tracks their whereabouts in the 
mine. But, I think all of us know that without vigorous 
enforcement, the MINER Act--like any act--though well-
intentioned will not really have its value.
    So, I look forward, today, to hearing about the progress 
with MSHA, and NIOSH on what they've done to implement the 
MINER's Act, key safety provisions, and hope that we hear some 
really strong words about their commitment to make sure that 
that is implemented properly.
    I chair the Subcommittee on Employment and Workplace Safety 
within the HELP Committee, and I intend to work very closely 
with Chairman Kennedy--along with all of our colleagues here--
on additional oversight hearings on this matter. I want to 
really hear about whether we're doing accident preparedness and 
response plans, and whether they've been reviewed, and what the 
findings are.
    But, Mr. Chairman, I do have another hearing to go to, I 
did want to come by today because this is a critical issue, and 
I hope that we can soon report to the widows and the children 
of the 72 men who died last year in mine-related accidents, 
that we're doing everything we possibly can--and as quickly as 
we can--to prevent tragedies like that happening again in the 
future.
    So, thank you very much, Mr. Chairman, and I will submit my 
questions for the record.
    Senator Harkin. Thank you very much, Senator Murray.
    Well, we have two panels, our first panel, Mr. Richard 
Stickler, we'll recognize first, then Dr. Howard.
    Mr. Richard Stickler, appointed to serve as Assistant 
Secretary of Labor for Mine Safety and Health on October 19, 
2006. He was Director of the Pennsylvania Bureau of Deep Mine 
Safety from 1997-2003, he's a native of West Virginia. Received 
his B.A. from Fairmont State University, and certified as a 
mine safety professional by the International Society of Mine 
Safety Professionals.
    Then after that, we'll to Dr. John Howard, from NIOSH. With 
that--and again, all of you, your statements will be made a 
part of the record in there entirety, I'd ask that, if you 
could just take 5 minutes and summarize for us, we'd appreciate 
that so we have time for questions.
    Mr. Secretary, welcome to the committee, and please 
proceed.
STATEMENT OF HON. RICHARD E. STICKLER, ASSISTANT 
            SECRETARY, MINE SAFETY AND HEALTH 
            ADMINISTRATION, DEPARTMENT OF LABOR
    Mr. Stickler. Thank you. Is this on?
    Senator Harkin. Yes, sir.
    Mr. Stickler. Chairman Harkin, Chairman Byrd, Senator 
Specter, and members of this subcommittee. I'm pleased to 
appear before you today to discuss the important work of the 
Mine Safety and Health Administration, MSHA, in protecting the 
health and safety of our Nation's miners. We appreciate the 
support this committee has given MSHA.
    The President's budget request for fiscal year 2008 
underscores our commitment to advancing mine safety and health.
    Last year, Congress passed the MINER Act, the most 
significant mine safety legislation in nearly 30 years. Allow 
me to briefly list some of our actions, to date, to implement 
this act.
    MSHA's final rule in emergency mine evacuation was 
published in the Federal Register on December 8, last year. It 
addressed many provisions that were mandated in the MINER Act 
to enhance miner safety, including required catches of self-
contained self-rescuers, improved training for miners, 
installation of lifelines and escape routes, provisions for 
multi-gas detectors, and the prompt accident notification.
    All emergency response plans have been submitted to MSHA by 
the deadline of August 14, 2006. We are ensuring that these are 
reviewed, approved, and implemented in a timely manner.
    One key component of the emergency response plan, is the 
availability of post-accident breathable air. MSHA issued a 
program information bulletin February 8 of this year that 
specifies three acceptable options for meeting this 
requirement.
    Post-accident communications and tracking are required by 
the MINER Act to be in place by mid-June 2009. We have had 
contact with more than 125 parties about systems to track and/
or communicate with miners while they're underground. To date, 
we have observed the testing or demonstration of 16 systems at 
various mine sites around the country.
    The MINER Act mandates improved training, certification, 
availability, and composition requirements for underground coal 
rescue teams. We're on track for publication of this proposed 
rule in the Spring, with the final rule to be published by the 
MINER Act's deadline of December of this year.
    We have also taken action to increase civil penalties. MSHA 
has sent a draft final rule increasing penalties to the Office 
of Management and Budget, and we expect it will be approved 
shortly.
    To implement section VII of the MINER Act, MSHA has 
designated 14 family liaison personnel. Those liaisons have had 
their initial training. The National Transportation Safety 
Board and the American Red Cross has helped us train these 
individuals.
    The MINER Act requires that standards be finalized by 
December 15 of this year, for sealing of abandoned areas of 
underground coal mines, with seals that provide for an increase 
in the 20 pounds per square inch standard.
    Last year MSHA raised the standards for alternative seals 
from 20 psi to 50 psi. This is an interim step until we 
finalize the final standard.
    MSHA and NIOSH are studying seal design, and MSHA is 
developing a proposed rule that we expect to publish in the 
Federal Register this spring.
    We're pressing ahead with our recruitment, training, and 
deployment of 170 additional coal mine enforcement personnel, 
mandated by Congress, and provided for in our fiscal year 2008 
budget. Ninety have already been hired, and we're on target to 
meet our hiring goal by September of this year.
    We will use all of the tools available to us to achieve our 
goals, including tough enforcement, education and training, and 
technology. We will particularly be aggressive with those mine 
operators who habitually violate MSHA's standards, and who seem 
to view penalties as just another cost of doing business.


                           prepared statement


    Much progress has been made to improve mine safety and 
health, but yet there is still a lot of work to be done. Today, 
MSHA remains focused on our core mission--to improve safety and 
health of America's miners, and to work toward the day when 
every miner goes home safe and healthy to family and friends, 
every shift of every day.
    Thank you for allowing me to testify, I look forward to 
taking your questions.
    [The statement follows:]
             Prepared Statement of Hon. Richard E. Stickler
    Chairman Harkin, Chairman Byrd, Senator Specter, members of the 
subcommittee: I am pleased to appear before you today to discuss the 
important work of the Mine Safety and Health Administration (MSHA) in 
protecting the health and safety of our Nation's miners, and to tell 
you of our progress in implementing the Mine Improvement and New 
Emergency Response (MINER) Act of 2006.
    2006 was the worst year for coal mine fatalities in over a decade. 
I know firsthand that every fatality is devastating for miners, their 
families, and the communities they live in. Let me be very clear that 
my number one priority is to protect the health and safety of America's 
miners. Both President Bush and Secretary Chao support my efforts to 
achieve these goals.
    Everything we do at MSHA is in service of the goal of zero 
fatalities in the Nation's mines.
                  msha fiscal year 2008 budget request
    The President's 2008 Budget requests $313 million and 2,306 full-
time equivalent employees for MSHA--a 4 percent increase over the 2007 
appropriation. The Budget underscores the administration's commitment 
to strong enforcement of safety and health in our Nation's over 14,000 
mines. The Budget includes $16.6 million to retain 170 additional coal 
enforcement personnel that were initially funded in a fiscal year 2006 
emergency supplemental appropriation in the wake of the Sago, Alma, and 
Darby mine accidents. It also supports the vigorous implementation of 
new safety standards and regulations authorized in the MINER Act, which 
the President signed into law on June 15, 2006.
Implementing the MINER Act of 2006 and Initiating New Policies
    Last year, Congress passed the MINER Act--the most significant mine 
safety legislation in nearly 30 years. Implementing the provisions in 
the MINER Act is MSHA's top priority.
    I would like to take this opportunity to review the progress that 
MSHA has made in implementing this landmark legislation.
                       emergency mine evacuation
    The Department published a final rule on Emergency Mine Evacuation 
in the Federal Register on December 8, 2006. This regulation implements 
many provisions that were mandated in the MINER Act to enhance miner 
safety, including:
  --Increased availability and storage of breathing devices, Self-
        Contained Self-Rescuers (SCSRs);
  --Improved emergency evacuation drills and training;
  --Installation and maintenance of lifelines in underground coal 
        mines;
  --Immediate accident notification for all mines.
  --Installation of fire-resistant, directional lifelines; and
  --Requirement to provide multigas detectors to individual miners 
        working alone and to each group of miners.
    This rule was effective immediately, on December 8, 2006, with the 
exception of some training and equipment provisions that must 
necessarily wait for training units to be developed and made available 
and for the equipment to be manufactured and shipped to some of the 
mine operators.
    With regard to the caches of SCSRs operators are required to store 
throughout the mines, MSHA has requested manufacturers of these units 
to give priority consideration to fulfilling orders to mining 
operations starting with those that do not have two SCSRs per miner.
    I have also written letters to underground mine operators asking 
them to ensure that they have at least two SCSRs per miner at their 
mine. If they do not, I have asked them to contact the manufacturer of 
their SCSRs to request priority order consideration. In addition, I 
have asked operators to let their local MSHA District Manager know if 
they need priority order consideration so that MSHA can monitor the 
requests and assist wherever possible.
    We are following a risk-based implementation plan to ensure 
sufficient quantities of SCSRs for every underground mine operation in 
this country, and we will continue to closely monitor the situation.
                        emergency response plans
    Section 2 of the MINER Act requires underground coal mine operators 
to adopt an emergency response plan covering the evacuation of all 
individuals endangered by an emergency, and to provide for the 
maintenance of individuals trapped underground. The first priority in 
any mine accident is to evacuate everyone from the mine, if possible. 
In addition, the emergency response plan must address post-accident 
communications and tracking, post-accident breathable air, lifelines, 
training, and local coordination.
    MSHA issued Program Policy Letters providing guidance to mine 
operators to help them develop their emergency response plans. All 
plans were submitted to MSHA by the deadline of August 14, 2006. We are 
ensuring that the plans are reviewed in a timely manner, approved, and 
implemented for all underground coal mines as specified in the act.
                      post-accident breathable air
    With respect to post-accident breathable air, MSHA first issued a 
request for information (RFI) in August 2006, to solicit ideas about 
how to address the issue of post-accident breathable air (required by 
the MINER Act). The Emergency Response Plans (ERPs) must provide for 
``emergency supplies of breathable air for individuals trapped 
underground sufficient to maintain such individuals for a sustained 
period of time.''
    We evaluated the comments and determined the best approach for 
implementing this requirement is through the dissemination of a Program 
Information Bulletin (PIB) on Breathable Air. This PIB was placed on 
MSHA's website and distributed widely to the coal mining community on 
February 8, 2007.
    The major provisions of this PIB include:
    Provides the following options for Operators to meet the 
requirements for Breathable Air:
  --Establish boreholes within 2,000 feet of the working section; or
  --Provide 48 hours of breathable air located within 2,000 feet of the 
        working section of the mine with contingency arrangements to 
        drill boreholes if miners are not rescued within 48 hours; or
  --Provide 96 hours of breathable air located within 2,000 feet of the 
        working section; or
  --Other options that provide equivalent protection based on unique 
        conditions at a mine.
    Methods of Providing Breathable Air (in barricaded or other areas 
that isolate miners from contaminated air) include:
  --Drilling boreholes;
  --Air line supplied by surface positive pressure blowers; or
  --Compressed air cylinders, oxygen cylinders, or chemical oxygen 
        generators.
    We are also posting related compliance assistance materials on 
MSHA's website, including the Program Information Bulletin (PIB), a 
hazard awareness information sheet on use of compressed air and 
compressed oxygen; and information sheets on methods of providing 
breathable air, including calculations.
        post-accident communications and post-accident tracking
    In section 2, the MINER Act requires post-accident communication 
and tracking systems to be in place by mid-June of 2009. MSHA is 
reviewing all the available technology and working with NIOSH and 
manufacturers to help in the development of safe, reliable systems for 
underground coal mines. We have had contact with more than 125 parties 
about systems to track and/or communicate with miners while they are 
underground.
    To date, we have observed the testing or demonstration of 16 post-
accident communications and tracking systems at various mine sites 
around the country. Once these systems are presented to MSHA for 
approval, we will expedite the approval process to ensure that 
workable, durable and reliable systems get into the mines as quickly as 
possible.
                           mine rescue teams
    The MINER Act mandates improved training, certification, 
availability, and composition requirements for underground coal mine 
rescue teams. We currently are drafting a proposed rule to implement 
the MINER Act provisions for mine rescue teams, and are on track for 
publication in the spring. The final rule will be published by the 
Act's deadline of December 2007.
                            civil penalties
    MSHA has implemented provisions contained in the MINER Act 
mandating increased penalties for flagrant violations, unwarrantable 
failure violations, and immediate notification violations in accordance 
with the MINER Act. The penalty amounts currently being assessed 
include:
  --Failure to promptly notify MSHA of accidents--$5,000 to $60,000;
  --Unwarrantable failure violations--minimum $2,000 for the first 
        citation and $4,000 for subsequent orders; and
  --Flagrant violations--up to $220,000.
    Last October, I issued a Procedure Instruction Letter (PIL) to all 
MSHA inspectors establishing uniform, Agency-wide procedures for 
enforcement personnel to properly evaluate flagrant violations as 
defined in the MINER Act.
    MSHA included the MINER Act penalty provisions and increased civil 
penalties for other violations in our civil penalty proposed rule, 
published September 8, 2006. We held public hearings to collect input 
from miners, the mining industry, and other interested parties.
    After reviewing the hearing input and written comments from all 
interested parties, we drafted a final rule and submitted it to the 
Office of Management and Budget for their review in accordance with 
required regulatory procedures. We anticipate publication of the final 
rule on civil penalties in the Federal Register soon.
                         family liaison program
    MSHA's Family Liaison Policy has been put into place to provide for 
an MSHA liaison with families at the site of a mine disaster. A Program 
Policy Letter has been issued and 14 designated family liaison 
personnel have had their initial training sessions. The National 
Transportation Safety Board and the American Red Cross have helped 
train these individuals.
          sealing of abandoned areas in underground coal mines
    The MINER Act requires that standards be finalized by December 15, 
2007, for the sealing of abandoned areas in underground coal mines with 
seals that provide for an increase in the 20 pounds per square inch 
(psi) standard for alternative seal construction.
    Last year, MSHA raised the standard for alternative seals from 20 
psi to 50 psi. This is an interim step until we establish a final 
standard.
    MSHA and NIOSH are studying the issue, and MSHA is drafting a 
proposed rule that we expect to publish in the Federal Register this 
spring.
                   technical study panel on belt air
    Section 11 of the MINER Act requires the establishment of a 
Technical Study Panel on Belt Air. The charter governing the panel was 
published in the Federal Register on December 22, 2006. The first 
meeting of the Technical Study Panel on the utilization of belt air and 
the fire retardant properties of belt materials in underground coal 
mining took place January 9-10, 2007.
    Members of the panel are prominent and experienced mine safety and 
health professionals. As mandated in the MINER Act, two of the panel 
members were appointed by the Department of Health and Human Services, 
two by the Department of Labor, and two members were appointed by 
Congress.
    The panel will convene their next meeting in March in Pittsburgh.
    The panel will prepare and submit a report by the end of this year 
to the Secretary of Labor regarding the utilization of belt air and the 
fire retardant properties of belt materials in underground coal mines. 
This report will provide independent scientific and engineering 
recommendations.
                          refuge alternatives
    The National Institute for Occupational Safety and Health (NIOSH) 
will conduct research and field tests on refuge alternatives. By the 
end of this year, NIOSH is scheduled to report the results of the 
research to the Department of Labor. By mid-2008, the Department of 
Labor will report to Congress on the actions MSHA will take in response 
to the NIOSH report.
                              recruitment
    The Emergency Supplemental Appropriations Act of 2006 (Public Law 
109-234) provided an additional $26 million for MSHA to strengthen its 
coal enforcement program, including the hiring of coal mine inspectors 
and other enforcement personnel. MSHA is pressing ahead with 
recruitment, training and deployment of the additional 170 coal mine 
enforcement personnel. To date, 90 of the 170 staff have already been 
hired. We are on target to meet our hiring deadline of September 2007, 
for the additional 80 coal mine enforcement personnel.
    We continue to conduct recruitment drives in local communities 
around the country, and we have hired additional staff at our Mine 
Health and Safety Academy to ensure that we can properly and 
expeditiously train our new inspectors and get them out to the job 
sites where they will make a difference. I strongly believe the 
increased presence of MSHA enforcement staff at the job sites will have 
a positive impact on mine safety and health.
            reinforcing the basics of mine safety and health
    We will use all of the tools available to us to achieve our goals, 
including tough enforcement, education and training, and technology. We 
will be particularly aggressive with those mine operators who 
habitually violate MSHA standards and who also seem to view penalties 
as just another cost of doing business. We are developing a database on 
accidents so that we can more objectively analyze trends and results. 
This will help MSHA target resources and attend to areas where progress 
has not been satisfactory.
    We face the challenge of inculcating a culture of safety in an 
industry that has played a key role in America's economic growth since 
the first industrial revolution. Much progress has been made since 
passage of the seminal Mine Safety and Health Act of 1977. Today, every 
single person at MSHA remains focused on our core mission: to improve 
the safety and health of America's miners and to work toward the day 
when every miner goes home safe and healthy to family and friends, 
after every shift of every day.
    Thank you for allowing me to testify today. I look forward to 
answering your questions.

    Senator Harkin. Thank you very much, Mr. Stickler.
    Senator Harkin. Now, we turn to Dr. John Howard, Director 
of the National Institute for Occupational Safety and Health, 
U.S. Department of Health and Human Services in Washington.
    Dr. Howard received his Doctor of Medicine from Loyola 
University in Chicago, his Doctor of Law from the University of 
California, Los Angeles, his Master's of Law from the George 
Washington University, here in Washington.
    He is Board-certified in internal medicine and occupational 
medicine, admitted to practice medicine and law in the State of 
California and the District of Columbia.
    Then, do I understand, you're accompanied by Dr. Kohler, 
who is Director of the NIOSH Office of Mine Safety and Health--
is that correct?
    Dr. Howard. Yes, Mr. Chairman.
    Senator Harkin. Well, Dr. Howard, please proceed.
STATEMENT OF DR. JOHN HOWARD, DIRECTOR, NATIONAL 
            INSTITUTE FOR OCCUPATIONAL SAFETY AND 
            HEALTH, DEPARTMENT OF HEALTH AND HUMAN 
            SERVICES
    Dr. Howard. Thank you very much. We're very pleased to be 
here today, with our statutory partner, MSHA, to give you an 
update on the NIOSH activities at Mining Safety and Health at 
our Pittsburg, Pennsylvania, our Spokane, Washington, and our 
underground Lake Lynn laboratories, which straddle Pennsylvania 
and West Virginia. Especially, activities made possible by the 
MINER Act, and the $10 million emergency supplemental 
appropriation in 2006.
    Following enactment of the MINER Act, NIOSH developed an 
implementation plan consisting of a technical, and a contract 
acquisition phase. In the technical phase, we tested system 
prototypes in operating coal mines, and evaluated claims from 
vendors about technologies that were represented as, 
``solutions,'' for the mining industry. NIOSH met with 
representatives from industry and labor, from Federal and State 
agencies, and even as far as Australia.
    Now, we're in the contract acquisition phase where the 
statement of Work for each technology area has been developed, 
and contract solicitations have been advertised for the 
development of new technologies.
    Today, I wanted to give you a brief update a brief update 
on several of the aspects of our Disaster Prevention Research 
Program, which have been made possible, and are greatly aided 
by the MINER Act, and the supplementation.
    First, NIOSH and MSHA have been working to share 
information on mine seals. Recently, NIOSH released a draft 
report entitled, ``Explosion Pressure, Design Criteria for New 
Seals in U.S. Coal Mines.'' Once finalized, this NIOSH report 
will provide an engineering science basis for designing mine 
seals in underground coal mines.
    Second, the Kutta System, which is a subterranean, wireless 
electronic communication system for the military. NIOSH is 
providing funds to DOD to modify their existing contract to 
develop a digitally networked communication system for 
underground miners to communicate with each other, and with the 
surface, which is capable of maintaining mine-wide operational 
integrity after a fire or explosion.
    Third, the leaky feeder communications systems, which are 
currently used in underground mines, and during normal mine 
operations, they function well. But they are based on a cable 
backbone that is run throughout the mine that can be damaged in 
fire or explosion. Our goal is to develop a survivable wireless 
leaky feeder communications system, that again, is capable of 
maintaining mine-wide operational integrity, after a fire or 
explosion. Such a system will be evaluated at the Leverage 
Mine, near Fairmont, West Virginia.
    Fourth, a wireless mesh system, which is a multi-hop 
network technology that could potentially increase the 
probability of any radio being able to communicate with another 
radio in the mine, by providing multiple communication paths in 
the mine. This system will be evaluated at the Imperial Mine in 
West Virginia.
    Fifth, mine location tracking systems would be particularly 
useful in locating miners in post-disaster situations, provided 
that the system survived a fire or explosion. We are now 
evaluating various tracking systems, and one will be selected 
for development.
    Sixth, NIOSH and MSHA have a working group to share 
information and coordinate activities on refuge chambers. NIOSH 
has contracted with the National technology Transfer Center at 
Wheeling Jesuit University to conduct two pilot studies on 
refuge chambers. Additionally, we are developing a third 
contract to determine design, installation and location 
parameters for refuge chambers. Combined with our own research 
and testing, these contract results will be used to prepare a 
report to Congress on refuge alternatives, and to provide 
practical guidance on the use of refuge chambers in underground 
coal mines.
    Seventh, NIOSH and MSHA are working, together with a 
technical study panel, appointed jointly by the Congress and 
the Secretaries of Labor and Health and Human Services, to 
develop recommendation on the utilization of belt air, and the 
composition and flammability of belt materials.

                           PREPARED STATEMENT

    In closing, NIOSH continues to work diligently to protect 
America's mine workers. The MINER Act, and the emergency 
supplemental appropriation of 2006, will enable NIOSH together 
with MSHA, to better protect miners.
    Thank you, Mr. Chairman.
    [The statement follows:]
                 Prepared Statement of Dr. John Howard
                              introduction
    Good morning Mr. Chairman and other distinguished members of the 
Committee. My name is John Howard, and I am the Director of 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 accompanied by Dr. 
Jeffery Kohler, Director of the Office of Mine Safety and Health within 
NIOSH. We are pleased to be here today with our sister agency the Mine 
Safety and Health Administration (MSHA) to give you an update on 
activities that have been initiated under the MINER Act of 2006.
    The United States is fortunate to have an abundance of mineral 
resources to power the economy, and the highly skilled men and women 
who work in the mining industry everyday are our most precious 
resource. The mine disasters in 2006 and the double roof fall 
fatalities in a West Virginia coal mine last month serve as painful 
reminders of the dangers inherent to this industry, and our shared 
responsibilities to ensure the safety and health of our mineworkers.
    The Office of Mine Safety and Health Research within NIOSH works to 
eliminate occupational illnesses, injuries, and fatalities through its 
research and prevention activities. Mining researchers at our 
Pittsburgh, Spokane, and Lake Lynn Laboratories have a long and 
successful history of working in partnership with labor, industry, and 
State and Federal agencies to develop and implement interventions that 
eliminate or control mining safety hazards, or reduce exposure to 
harmful physical or chemical agents. The work of NIOSH scientists and 
engineers can be found throughout American mines. This is evidenced by 
safer design practices, equipment innovations that improve safety or 
health, technology to improve mine rescue, and improved training 
programs for miners. Over the years, significant safety and health 
gains have been achieved through the collective efforts of labor, 
industry, and government. Yet, more remains to be done, and additional 
effort will be required just to maintain the historical gains, as 
changing mining conditions present new safety and health challenges. 
Our program of mining safety and health research is driven by a 
strategic plan with specific performance goals. Our plan, developed 
with extensive customer and stakeholder input, identifies critical gaps 
in mining safety and health knowledge and practices and establishes 
research priorities for filling in those gaps.
    While it is still too soon to find visible evidence of major 
changes resulting from research in underground coal mines since the 
Sago Mine disaster, changes are underway, and may represent the most 
significant improvement in mine safety technology and mine safety 
practices in three decades. New communications and tracking 
technologies, Self Contained Self Rescuers (SCSRs), and refuge chambers 
are being developed. New and more effective training programs, 
emergency procedures, and mine safety practices are being designed 
using innovative management systems and risk analysis studies. Any one 
of these alone would improve mine safety, but in combination the effect 
is expected to be great. The funds from the emergency supplemental 
appropriation are facilitating more safety technology gains in 2 years 
than have occurred in the last few decades. The legislative mandates 
have created an unprecedented environment of partnership among labor, 
industry, and government. The safety landscape will be different and 
vastly improved within 3 years of enactment of the MINER Act, and 
important improvements are expected to continue for several years 
afterwards.
    Improving disaster prevention and response continues to be a high 
priority for NIOSH, and we have several projects to develop 
technologies and practices to prevent mine explosions, fires, and 
inundations that existed before the MINER Act was adopted and some new 
ones triggered by the tragic events of last year. A few weeks ago we 
released a draft report entitled, Explosion Pressure Design Criteria 
for New Seals in U.S. Coal Mines. Once finalized, this NIOSH report 
will provide an engineering-science basis for designing mine seals and 
will assist NIOSH and MSHA in developing new standards for seals in 
underground coal mines, in this country and around the world.
    NIOSH received the Research & Development 100 Award of 2006, 
recognizing the coal dust explosibility meter, as one of the top 
technological innovations of the year. Rock dust is applied to coal 
mine surfaces to prevent coal dust explosions. If sufficient dust is 
applied, an inert mixture between the two dusts is achieved. The 
percentage of inert material in the mixture is specified by current 
regulation. However, a determination of this percentage by an MSHA 
inspector or mine operator requires taking a sample and sending it to a 
distant lab for analysis. This can take several days. The coal dust 
explosibility meter developed and field tested by NIOSH researchers 
will allow an immediate or real-time determination by mine operators, 
or an MSHA inspector, of whether an inert ratio has been achieved. A 
pre-production model is currently undergoing approval testing at MSHA, 
and commercial production of this life-saving, new technology will 
begin as soon as it is approved for use in underground coal mines.
   new innovations--miner act of 2006 and supplemental appropriation
    Moving critical safety technologies, for example oxygen supply, 
emergency communications, and miner tracking devices, from the 
laboratory into the mine is a high priority for NIOSH, as is adapting 
technologies from other military or civilian applications to the mining 
industry's needs. In addition to the scientific challenges, there are 
economic ones as well--since mines represent a relatively small market 
for sales, the government role in research and development becomes even 
more important in bringing a promising technology to mine operators.
    The Conference Report on H.R. 4939 (109-494) Emergency Supplemental 
Appropriations Act for Defense, the Global War on Terror, and Hurricane 
Recovery provided a $10 million Emergency Supplemental Appropriation 
(ESA), that will have a very positive effect in increasing the 
availability of critical oxygen supply, communication and tracking 
technologies. The goal is to facilitate the adaptation and movement of 
these technologies from other industries or from prototype stage to 
commercialization and into the mines, as rapidly as possible, and this 
is well underway.
    First, a high level ``road map'' for success was designed, taking 
into consideration, the availability of technologies, commercial 
availability of equipment, as well as the technical and logistical 
difficulties in meeting the schedule and performance expectations of 
the MINER Act. It was determined that the plan should include 
improvements to legacy systems as well as the introduction of new 
technologies. An accurate assessment of the existing technology base 
was deemed an essential prerequisite to success. The initial challenge 
for NIOSH was to invest sufficient time in the initial analysis to 
ensure that the contract efforts are in the areas most likely to yield 
results, and move new technologies into the mines as expeditiously as 
possible.
    Our effort to award the right mix of contracts quickly consisted of 
two phases: the technical preparation phase and the contract 
acquisition phase. The technical phase consisted of significant 
engineering-science work to develop the scope of work for the 
contracts, testing of system prototypes in operating coal mines and at 
NIOSH's Lake Lynn Experimental Mine, and evaluation of claims from 
vendors on technologies that were represented as ``solutions'' for the 
mining industry. Stakeholder meetings including the NIOSH Emergency 
Communications Partnership were held periodically as well. NIOSH also 
met with Australian labor, industry, and government officials to review 
findings and the proposed approach, as well as other alternatives. 
Within three months after the engineering services agreement (ESA) was 
approved, a consensus was reached among all groups that the available 
funds were: targeting a balanced set of technologies that address the 
mining community's needs in the critical gap areas; selecting 
technology subsets that have a higher probability of success in the 
short term; and meeting the goal of the emergency supplemental 
appropriation.
    Depending on the amount of work involved, it has taken between 2 
and 5 months to complete the preliminary technical work for each 
contract. Essentially, this technical preparation phase has helped to 
ensure that the most promising and critical technologies are being 
supported under the ESA.
    We are now in the acquisition phase, where the statements of work 
for each technology area have been developed and contract solicitations 
have been advertised for the purchase of services that will lead to 
development and demonstration of new technologies to meet the intent of 
the MINER Act. The Emergency Supplemental Appropriation is subject to 
the rules and regulations for full and open competition as prescribed 
by the Federal Acquisition Regulation (FAR) Part 15. Therefore, full 
and open competition is being pursued.
    NIOSH and MSHA have a working group to share information and 
coordinate activities on refuge chambers. NIOSH has contracted with the 
National Technology Transfer Center at Wheeling Jesuit University to 
conduct two pilot studies on refuge chambers, and another contract to 
determine design, installation, and location parameters is in the 
acquisition phase. The findings of these contracts combined with our 
research and testing will be used to prepare the report to Congress on 
refuge alternatives, and to provide practical guidance to industry and 
labor on the use of refuge chambers in underground coal mines.
    The following table displays the various communication and tracking 
technology solicitation areas NIOSH is actively pursuing, and the 
respective anticipated award and completion dates.

                                TABLE 1.--COMMUNICATION AND TRACKING PROCUREMENTS
----------------------------------------------------------------------------------------------------------------
                                           Technical phase                                Projected  Completion
             Solicitation                  completion date       Anticipated award date            Date
----------------------------------------------------------------------------------------------------------------
Adaptation of the U.S. Army ``Kutta''  August 2006............  Awarded January 2007--   April 2008
 System.                                                         work in process.
Survivable Leaky Feeder..............  August 2006............  April 2007.............  August 2008
Hardened Mesh/Node System............  September 2006.........  May 2007...............  September 2008
Communications Practices.............  November 2006..........  May 2007...............  March 2008
Tracking System......................  December 2006..........  June 2007..............  December 2008
----------------------------------------------------------------------------------------------------------------

    The projected completion dates are based on historical estimates 
and projections from appropriate organizations, and are directly 
dependent on the anticipated award dates being met. It should be noted 
that a number of factors may affect award dates and therefore project 
completion, such as the number of bidders, the extent of technical 
clarification or budget clarification meetings necessary, the 
complexity of the negotiated changes, and the time allotted to prepare 
best and final offers.
    The following provides a brief description of select technologies 
to be funded.
Adaptation of the U.S. Army ``Kutta'' System
    The U.S. Army Research, Development and Engineering Command, 
Communications Electronics Research, Development and Engineering Center 
(CERDEC) currently has a contract with Kutta Consulting to design and 
develop a subterranean wireless electronic communications (SWEC) system 
for the military. There is high potential for applying this Department 
of Defense (DOD) technology to meet the mine communication and tracking 
requirements. In this procurement action, we are providing funds to the 
DOD to modify their existing contract with Kutta Consulting, to extend 
current design and development efforts to a communications system for 
underground mines. In taking this approach, we hope to build on the 
proven successes resulting from the application of state-of-art 
information and communications-electronics technologies to increase the 
safety level for the military, to achieve similar enhancements for U.S. 
mines.
    Under this contract, Kutta Consulting will develop a digitally 
networked communications system for underground miners to communicate 
with each other and with the surface. The approach is to develop a 
communication system that has a dual-mode of operation. It is 
envisioned that this system will be capable of maintaining mine-wide 
operational integrity after an emergency situation such as a mine fire 
or explosion.
Survivable Leaky Feeder System
    Leaky feeder communication systems are currently used in 
underground mines. During normal mine operations they function very 
well. However, they are based on a cable backbone that is run 
throughout the mine that can be damaged in the event of a fire, roof 
fall or explosion. If the cable is damaged, the system may no longer be 
operational.
    For this procurement action, we want the selected contractor to 
design, develop, and demonstrate a survivable wireless leaky feeder 
communications distribution system that is capable of maintaining mine 
wide operational integrity after an emergency situation such as a mine 
fire or explosion. The proposed system will be compatible with the 
leaky feeder systems and mobile radios that are commonly used in mines 
today.
Hardened Mesh/Node System
    Wireless mesh network technology is a multi-hop system in which 
devices are capable of supporting each other during transmission of 
voice and data information. They are used for commercial and public 
safety applications today. Some of the attributes that they display 
could be beneficial for use in underground mines. These include: (1) 
increased probability of any radio being able to communicate with 
another radio, by providing multiple paths for communications within 
the mesh network, and (2) peer-to-peer communications network in which 
every node is a routing relay. The mesh network is capable of 
supporting communications between members of a group within the mesh 
network without the support of external networks.
    While the introduction of wireless mesh technology in mines does 
hold potential, there are a variety of challenges that the underground 
mining environment introduces to realizing the full potential of a 
wireless mesh network, including: survivability of system components 
during catastrophic events, range limitations. For this procurement 
action, we want the selected contractor to design, adapt, construct, 
install, and evaluate wireless mesh ``peer-to-peer'' communication 
networks in an underground coal mine that address these challenges.
Mine Location Tracking System
    NIOSH has also prepared a request for the procurement of services 
to evaluate and develop mine location tracking systems. These systems 
would be particularly useful in locating miners in a post accident 
situation and respond directly to the requirements of the MINER Act.
    Our internal research and discussions with vendors have determined 
that there are several possibilities for providing for the tracking of 
miners. Therefore, our request for services has been constructed so 
that there can be several phase one awards during which the accuracy 
and feasibility of the technology can be assessed. Of the competing 
phase one awardees, one will be selected for phase two funding for the 
demonstration and development of their technology.
    As a separate initiative, NIOSH and MSHA plan to test a fully 
functional military mesh communications and location tracking system in 
an underground mine. While the form factor (back pack size) is totally 
unsuitable for a miner, it should demonstrate the maximum performance 
and accuracy achievable through one approach to mine tracking--the node 
based radio approach. This is an important input in consideration of 
future spending of funds in this area.
    Lastly, NIOSH and MSHA are working closely together with a 
technical study panel on belt air appointed by the Congress and the 
Secretaries of Labor and Health and Human Services to develop 
recommendations on the utilization of belt air and the composition and 
flammability of belt materials.
                               conclusion
    In closing, NIOSH continues to work diligently to protect the 
safety and health of mineworkers. The MINER Act and supplemental 
funding for mining research will enable us to make significant 
improvements in the areas of communication and tracking. We appreciate 
the opportunity to present our work to you and thank you for your 
continued support. We are pleased to answer any questions.

    Senator Harkin. Dr. Howard, thank you very much.
    I would like to open this round of questions by turning to 
our distinguished chairman, Chairman Byrd.
    Senator Byrd. Thank you, Mr. Chairman.
    Mr. Stickler, the State of West Virginia is preparing to 
implement several mine safety improvements. Coal operators will 
submit plans for the use of emergency shelters by April of this 
year, and submit separate plans for the use of wireless 
communications and tracking systems by July 31 of this year.
    If West Virginia is moving ahead with these safety 
improvements in communications, and emergency shelters, then 
why can they not be done just as quickly at the Federal level?
    Mr. Stickler. Well, as you know, the MINER Act established 
procedures for the evaluation of shelters, and assigned that 
responsibility to NIOSH, and NIOSH will be issuing a report by 
the end of this year. That process is ongoing, and certainly 
MSHA will look forward to receiving that information, and use 
that guidance to do the best we can to promote health and 
safety.
    Senator Byrd. When will MSHA make emergency shelters 
available to miners?
    Mr. Stickler. This is dependent upon the study that NIOSH 
is doing, and after that study's done, and a report is 
published, then MSHA would consider that information for 
rulemaking to make shelters available to miners.
    Senator Byrd. When do you think that will be? How long will 
that take?
    Mr. Stickler. Well, NIOSH's report, I understand, is due 
the end of this year. Then normally it takes about a year to do 
rulemaking after that.
    Senator Byrd. When will MSHA re-examine its rule about the 
use of belt air ventilation?
    Mr. Stickler. Well, as you know, Congress established the 
technical study panel, comprised of two members appointed by 
Congress, two members appointed by each the Secretary of the 
Department of Labor, and the Secretary of the Department of 
Health and Human Services.
    Senator Byrd. Are they all in place?
    Mr. Stickler. They're in place, they had their first 
meeting on January 9 or 10, they're scheduled for their second 
meeting in March in Pittsburgh, and they will complete their 
report by the end of this year.
    Senator Byrd. You've had the authority to address these 
issues since the 1969 Coal Act. Why does MSHA choose not to use 
that authority? Why do you need another 18 months to study the 
issues?
    Mr. Stickler. Well, sir, I think since Congress established 
the mechanism for NIOSH to conduct that study, and I think it's 
appropriate to follow that process.
    Senator Byrd. When MSHA releases its rule to increase seal 
standards this spring, how closely will those changes track the 
recommendations by NIOSH, which suggested a three-tier--T-I-E-
R--system and a standard up to 640 psi?
    Mr. Stickler. I have been working very closely with NIOSH 
on, on this. I've met with them, I've also assigned a team of 
engineers and safety specialists to address exactly what you 
said--a tier system that would identify the seal stress that 
would be required in various scenarios in an underground coal 
mine.
    Senator Byrd. How closely will those changes track the 
recommendations by NIOSH?
    Mr. Stickler. I think they will track very closely. NIOSH 
did a study, traveled around the world--really, this is the 
first time that any type of study like this has been done, and 
provided new information that, I think, is going to have a 
significant impact on mine safety--not only in this country, 
but in other countries. MSHA will certainly track NIOSH's 
recommendations very closely.
    Senator Byrd. Mr. Stickler, MSHA recently changed its 
training requirements for coal safety inspectors. In the 
materials submitted to my office, I noted from those materials 
that MSHA has eliminated from its curriculum 92 hours of safety 
training, including 6 hours related to repeat violations, 6 
hours related to roof control, 13 hours related to ventilation, 
6 hours related to accident investigations, and 6 hours related 
to 103(g) orders, which is the provision in the Coal Mine Acts 
giving a union representative the right to obtain, immediately, 
an inspection of a mine if an imminent danger exists. How can 
this subcommittee be sure that the coal safety inspectors that 
MSHA is hiring are receiving sufficient training in these 
critical areas?
    Mr. Stickler. My understanding is that, while some 
curriculum's subject matter was reduced, for other subjects, 
increases in the amount of training hours, and the net gain was 
56 hours.
    Part of the reason that the classroom training hours were 
reduced, is that some of this training has been transferred to 
the field at the District Offices to be done, some of it can be 
done via computer systems. But I had the same concerns and the 
same questions that you asked. It came to my attention, I met 
with the Director of the program that oversees the Beckley 
Academy and the training of our mine inspectors, and he assured 
me that a couple of years ago they did a survey to identify 
what knowledge and skills and information an individual needs 
to have to be a mine inspector. So, they went back, and they 
changed the curriculum, to tailor it, to make sure that they 
addressed those areas that gave the trainee, the inspector 
trainee, the skills and knowledge that they needed to do the 
job, and he has assured me that we are doing a better job 
training our inspectors today than any time in the past.
    Senator Byrd. How do you feel about that? Are you, are you, 
are you assured by that?
    Mr. Stickler. Well, this individual has many years of 
mining experience, worked underground with the miners, been in 
charge of safety, of training for MSHA for several years, and I 
have a great amount of confidence in his judgment.
    Senator Byrd. Do you feel that there's anything that's, 
really, that really needs to be done? Anything that's not up to 
your expectations?
    Mr. Stickler. In the area of training, I think we have a 
world-class training program of our inspectors. They spend, 
basically, 6 months in the classroom, and 6 months on the job, 
and they rotate back and forth, spend a couple of weeks in the 
classroom, 2 or 3 weeks out in the field, and back and forth. I 
think we're doing an outstanding job.
    I've spent quite a bit of time, since I've been with this 
job, traveling out to the districts and meeting with our mine 
inspectors, and talking with them, and getting ideas and 
comments from them, and I have not had one yet indicate to me 
that he was concerned about the amount--or she was concerned--
about the amount of training they're receiving.
    Senator Byrd. Thank you, Mr. Chairman.
    Senator Harkin. Thank you, Mr. Chairman.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Stickler, the report released by the House Education 
and Labor Committee has evaluated a number of the objectives 
that we had. It has found that the requirements have not been 
completed. For example, conveyer belts were supposed to be 
installed which could readily ignite underground fires. They 
have not been replaced with less flammable belts, although 
those less flammable belts are available. Are you familiar with 
that deficiency?
    Mr. Stickler. I'm not familiar with that deficiency, 
Senator, because, in fact, there is no deficiency there.
    The Congress set up the technical study panel to study the 
fire-resistant properties of underground conveyer belts. That's 
the Panel I mentioned earlier, they are studying two things--
belt air, and the fire resistant properties of underground 
conveyer belt material.
    That study panel will conclude their work at the end of 
this year, and based upon their recommendation, then, MSHA will 
determine what would be appropriate, based on the study and 
information we receive.
    Senator Specter. Isn't it correct, as the House committee 
has found--that there are flammable belts now in operation?
    Mr. Stickler. Yes, sir. There----
    Senator Specter. Aren't there belts which are safer, less 
flammable?
    Mr. Stickler. The belts that are in service today are 
required to be fire-resistant. They are tested by MSHA to 
determine whether or not they are fire-resistant.
    Senator Specter. Well, then let's deal with my question, 
which is a question posed by the House committee report, that 
there are less flammable belts available now--isn't that true?
    Mr. Stickler. I would, yes, I believe you could protract 
less flammable belts.
    Senator Specter. Well, if that is true, why aren't the less 
flammable belts installed now?
    Mr. Stickler. The law hasn't required a less flammable 
belt, the law has required a fire-resistant belt, and the 
specifications that belt material must pass in the test in 
order to be approved as fire-resistant.
    Senator Specter. Well, if the law requires a fire-resistant 
belt, and you could put a safer belt on, why not do that?
    Mr. Stickler. That may very well be the recommendation of 
this study panel, that they are available----
    Senator Specter. Well, wait a minute--wait a minute--why 
wait for a recommendation from a study panel, if you know that 
there is equipment which will be safer?
    Mr. Stickler. Because Congress set up the study panel to do 
an impartial, scientific evaluation of what is available, and 
whether or not it's practical to improve the fire-resistance of 
our underground conveyer belts.
    Senator Specter. But, you have authority now to put into 
operation the safest equipment which is currently available, 
don't you?
    Mr. Stickler. That would take a rule to change the fire-
resistant specifications for a conveyer belt, will take a rule, 
and it will take longer--it would take longer to do that rule, 
than it would to wait until the technical study panel does 
their work.
    Senator Specter. Well, Mr. Stickler, first I hear about a 
rule change, then I hear about a study. In the context where 
you know you could get safer belts now, it seems to me that it 
ought to be done. Are you telling me that you don't have the 
authority to do it?
    Mr. Stickler. Under the current law and rules, I do not 
have the authority to require any belts, other than what is 
specified in the Federal regulation.
    Senator Specter. Well, we will pursue that, Mr. Stickler. I 
don't think you're correct. I think you have the authority to 
do that now, and you're telling us about rule changes and about 
studies. These more flammable belts could cause an accident at 
any time.
    The House committee reported that there are electronic 
detection devices available, which can detect fires before they 
get out of control, and detect explosive gases before it is too 
late. But, those devices are not being implemented, why not?
    Mr. Stickler. Well, they're implemented in some cases. Some 
mine operators install these voluntarily, and also mine 
operators that use belt air at the face, are required by 
Federal regulation to install carbon monoxide detectors as part 
of their protection system on that belt conveyor.
    Senator Specter. Well, don't you have the authority to 
require that those electronic detection devices will be 
installed?
    Mr. Stickler. Not without a new rule. The current rule does 
not require them at all mines.
    Senator Specter. Are you trying to get a new rule, so we 
could have safer electronic detection devices?
    Mr. Stickler. I think that would certainly be a rule that I 
would like to pursue.
    Senator Specter. Well, why don't you pursue it?
    Mr. Stickler. Well, sir, I've been on the job 4 months. I 
inherited a regulatory agenda that I've been working very hard 
on, and the priorities on that agenda are those things that 
Congress mandated last June, and MSHA has been working very 
hard to do that rulemaking, and will continue to do so the rest 
of this year.
    Senator Specter. Well, the red light is on.
    Senator Harkin. Go ahead.
    Senator Specter. Senator Harkin says I should go ahead, so 
I shall. I've got a long list here.
    There are required air packs, in order to assist on 
evacuation. The House committee found that those required air 
packs are not being installed, is that true?
    Mr. Stickler. They're being installed at the rate of, 
probably about 10,000 a month. There are three manufacturers 
for these air packs, and as you know, the MINER Act, and also 
the final rule that MSHA published on December 8 requires a 
significant number of additional air packs at the underground 
mines, and the manufacturers have not been able to keep up.
    There are two manufacturers that have about 98 percent of 
the market, and they have approximately a 10 month backlog on 
order. I have worked with the manufacturers, and I sent a 
letter out to the mine operators, asking that we give priority 
to those mines that need these units the most. Starting with 
any mine that doesn't have two units per miner, and once we get 
those in place, then we'll go to three, and so on, until we get 
full implementation.
    About 20 percent of the mines are in full compliance, that 
have not only two per miner in the working section, but one on 
the man-trip, and caches of SCSR's steward in the escape way, 
traveling out of the mine.
    Senator Specter. According to the committee report, Mr. 
Stickler, MSHA has delayed in providing guidance, so that mine 
operators are not yet providing breathable air supplies 
underground, as required by law. Is that true?
    Mr. Stickler. I provided that guidance on February 8. As 
far as breathable air, the requirements and methods of 
providing breathable air.
    Senator Specter. So, the House committee is wrong when they 
say that your Department has delayed, and the mine operators 
don't know what to do on that issue.
    Mr. Stickler. Well, perhaps they wrote that before February 
8, but February 8 was when I issued the guidance.
    Senator Specter. The report came out yesterday.
    The MINER Act sought to ensure that all coal mines have 
rescue teams available who can react swiftly in emergencies. 
According to the committee report, that hasn't been 
accomplished. Are they wrong again?
    Mr. Stickler. The current regulation on mine rescue teams 
is that they have to be within 2 hours of the mine site. The 
MINER Act requires that MSHA promulgate rules that would 
require the rescue teams to be within 1 hour. MSHA has started 
to work on that rule, and we will be publishing a proposed rule 
shortly, and we will have a final rule before the end of this 
year.
    Senator Specter. The MINER Act sought to ensure that MSHA 
would keep families and the public fully and accurately 
informed about accidents. According to the committee report, 
family members continue to complain that MSHA is not fulfilling 
that requirement. Are they wrong again?
    Mr. Stickler. I have instructed our investigation team 
leaders to make sure that we maintain constant contact with the 
family members and meet with them, and provide information with 
them. If there's anyone that feels that we're not fulfilling 
that, I would certainly correct it, if they make me aware of 
it.
    Senator Specter. Well, there are more, we'll supply them 
for the record.
    [The information follows:]
   Summary of Staff Report of the House Education and Labor Committee
               emergency evacuation problems still remain
    The MINER Act sought to ensure that miners have the equipment and 
training needed to get out of the mine quickly during an emergency. 
According to the Committee staff, the required air packs necessary for 
escape are not all in place, and their reliability is uncertain. Miners 
are not yet receiving real-world training in evacuation. Adequate 
communication and tracking equipment for emergencies are still not in 
place, and will not likely be anytime soon.
           underground refuges are still not being installed
    The MINER Act sought to ensure that miners have a safe place to 
await rescue should they be unable to safely evacuate in an emergency. 
According to the Committee staff, due to delays by MSHA in providing 
guidance, mine operators are not yet providing breathable air supplies 
underground. Moreover, MSHA has not yet required mine operators to 
provide hardened shelters underground.
      qualified rescue teams are still not available at all mines
    The MINER Act sought to ensure that all coal mines have rescue 
teams available who can react swiftly in emergencies. According to 
Committee staff, this has not been accomplished.
    disaster communication with miner families and the public needs 
                               attention
    The MINER Act sought to ensure that MSHA keep families and the 
public fully and accurately informed about accidents. But today, family 
members continue to complain that MSHA is not keeping them informed 
about accident investigations affecting their loved ones.
     key hazards revealed by the 2006 tragedies remain unaddressed
    According to Committee staff, conveyor belts that can readily 
ignite underground mine fires have not been replaced with less 
flammable belts, although flame retardant belts are available. 
Electronic detection devices that can detect fires before they get out 
of control, and explosive gases before it is too late, are not 
universally required.
            tougher penalties need to be regularly assessed
    The MINER Act sought to ensure that incentives for compliance with 
MSHA requirements at mines were increased. According to Committee 
staff, MSHA has yet to issue a ``pattern of violations'' citation to a 
mine operator, has not finalized regulations to ensure that assessments 
are properly assessed, and has not addressed concerns that initial 
penalties assessed by inspectors are watered down during review.
conclusion: according to the committee staff, the promise of the miner 
                    act has not been fully realized
    The promise of the MINER Act of 2006 has not been fully realized. 
MSHA is moving too slowly. Meanwhile, miners' lives remain at risk. The 
mining industry need not wait for MSHA to act, but many mine operators 
are doing just that. MSHA and the mining industry need to do better, 
and then move on swiftly to eliminate many other critical safety and 
health risks to miners.

    Senator Specter. It's a little discouraging, Mr. Stickler, 
to find a House committee specifying all of these deficiencies, 
and to have your replies that they're either wrong on the 
facts, or that you need some additional rule, or that some 
manufacturer can't comply, and it all amounts to delay. Any one 
of these many factors could cause another mine disaster with 
many deaths.
    I would ask you to review their report, and give this 
subcommittee responses to what they have had to say.
    Mr. Stickler. I'll do that.
    Senator Specter. Thank you.
    [The information follows:]
  MSHA Comments on the House Committee on Education and Labor Interim 
             Staff Report--Implementation of the MINER Act
                           executive summary
    On February 27, 2007, the Chairman of the House Education and Labor 
Committee, Rep. George Miller, issued an Interim Staff Report entitled, 
Implementation of the MINER Act Is Proceeding Too Slowly. As the title 
of the report indicates, Chairman Miller believes that the Mine Safety 
and Health Administration (MSHA) is not moving quickly enough to 
implement the Mine Improvement and New Emergency Response (MINER) Act 
of 2006, which was signed by President Bush on June 15, 2006. MSHA's 
response to the report was requested by Senator Arlen Specter during an 
oversight hearing conducted by the Senate Appropriations Subcommittee 
on Labor, Health and Human Services, and Education on February 28, 
2007.
    The report concedes that MSHA is making progress towards 
implementing the key provisions of the MINER Act. The principal 
criticism appears to be that MSHA is not implementing the Act before 
the deadlines set for the agency by Congress. The key point made by the 
report is:

    ``Following a careful examination of available information, we 
conclude that while the Mine Safety and Health Administration is making 
some progress, it is moving too slowly in addressing the critical risks 
targeted by the MINER Act.''

    MSHA, however, believes that, by including these deadlines in the 
legislation, Congress made clear its intent to focus MSHA's attention 
on MINER Act implementation. Congress also recognized, by setting 
certain deadlines ahead of others, that certain MINER Act provisions 
are complex and require substantial analysis and public input prior to 
implementation. These provisions would necessitate more time.
    MSHA does not agree that the agency is falling short on 
implementing the MINER Act. There has been significant progress toward 
implementing this important statute. A summary of the provisions 
already implemented to protect miners include:
  --Requiring all coal mines to submit to MSHA their emergency response 
        plans;
  --Requiring more SCSRs devices for each miner in every underground 
        coal mine. MSHA has addressed a backlog in SCSR orders created 
        by new MINER Act requirements;
  --Requiring fire resistant evacuation life lines in all underground 
        coal mines within three years as specified in the MINER Act;
  --Mandating additional safety training and training on the use of 
        SCSRs at underground coal mines. Devices from all three SCSR 
        manufacturers are now commercially available for miners to 
        fulfill their expectations training requirements;
  --Establishing new maximum penalties for flagrant violations and new 
        minimum penalties for failure to notify and unwarrantable 
        failure violations and orders;
  --Requiring all mine operators to contact MSHA within 15 minutes of 
        an accident;
  --Requiring redundant underground to surface communications systems 
        in underground coal mines;
  --Issuing guidance to mine operators regarding emergency supplies of 
        breathable air;
  --Training 14 MSHA officials to serve as Family Liaisons; and
  --Although it was not required under the MINER Act, MSHA required the 
        use of multi-gas detectors for underground coal miners.
    In addition to these accomplishments, MSHA continues to implement 
the remaining provisions of the MINER Act, including:
        post-accident communications and post-accident tracking
    Between January 2006 and March 30, 2007, MSHA has received 39 
applications for approval of communications and tracking systems. Of 
these 39, 24 applications are being evaluated for approval, 12 are 
modifications of previously approved systems, and 3 are approvals for 
new systems. These new systems are:
  --The Kenwood portable hand held radio;
  --Marco RFID (radio frequency identification) Tracking Tag; and
  --Matrix Design Group RFID Tracking Tag.
    While none of these devices are entirely wireless, they do provide 
options that are available now for communicating in mines. Congress, in 
the MINER Act, requires that by June 2009, mine operators must adopt 
wireless communications and electronic tracking systems. MSHA is 
reviewing the available technology and working with the National 
Institute for Occupational Safety and Health (NIOSH) and manufacturers 
to help in the development of safe, reliable systems for underground 
coal mines. Between January 2006 and March 26, 2007, MSHA has received 
a total of 132 communications and tracking proposals.
                           mine rescue teams
    The MINER Act requires the Department of Labor to issue regulations 
with regard to mine rescue teams. These regulations must address 
improved training, certification, availability, and composition 
requirements for underground coal mine rescue teams. MSHA is currently 
drafting a proposed rule to implement the MINER Act provisions for mine 
rescue teams with anticipated publication in summer 2007. MSHA 
anticipates that a final rule, as mandated by Congress in the MINER 
Act, will be promulgated by December 15, 2007.
                            civil penalties
    MSHA immediately implemented the MINER Act provisions mandating a 
new maximum penalty of up to $220,000 for flagrant violations, and new 
minimum penalties for ``unwarrantable failure'' and ``failure to 
notify'' violations. Last October, MSHA issued a Procedure Instruction 
Letter (PIL) to all MSHA inspectors establishing uniform, Agency-wide 
procedures for enforcement personnel to recognize and issue flagrant 
violations as defined in the MINER Act. MSHA's Coal Mine Safety and 
Health Division is considering 13 flagrant violation citations and 
orders--a first in the Agency's history. In addition to the MINER Act 
changes, MSHA published a proposed civil penalty regulation in 
September 2006 and a final civil penalty rule, providing higher penalty 
assessments, on March 22, 2007.
          sealing of abandoned areas in underground coal mines
    Beginning on June 1, 2006, prior to passage of the MINER Act, MSHA 
took several actions to increase protection for miners. The agency 
required: a temporary moratorium on the construction of new alternative 
seals; operators to assess the atmosphere behind sealed areas of 
existing alternative seals; operators to take remedial action if the 
atmosphere behind the seal had the potential for an explosion; strength 
and construction requirements for new alternative seals; inspection and 
maintenance of existing alternative seals, including corrective action 
when necessary; and MSHA approval of new alternative seals. MSHA is 
currently reviewing all the available scientific information and 
industry practices to determine the best means of implementing the seal 
requirements of the MINER Act. Working with the National Institute for 
Occupational Safety and Health (NIOSH), MSHA is developing a proposed 
rule on mine seals and will publish the proposal in the Federal 
Register in summer 2007. A final rule, as mandated by Congress in the 
MINER Act, will be promulgated by December 15, 2007.
                   technical study panel on belt air
    Section 11 of the MINER Act established a Technical Study Panel on 
Belt Air. The purpose of this Panel is to ``provide independent 
scientific and engineering review and recommendations with respect to 
the utilization of belt air and the composition and fire retardant 
properties of belt materials in underground coal mining.'' Congress 
provided the Panel one year from the Panel's appointment to issue its 
report, and required the Department of Labor to respond to the Panel's 
report within 180 days of receiving it.
    The charter governing the Panel was published in the Federal 
Register on December 22, 2006. The first meeting of the Technical Study 
Panel took place January 9-10, 2007. Members of the Panel are prominent 
and experienced mine safety and health professionals. As mandated in 
the MINER Act, two of the Panel members were appointed by the 
Department of Health and Human Services, two by the Department of 
Labor, and two members were appointed by Congress. The Panel will 
convene its second meeting to be held March 28-30 in Pittsburgh, 
Pennsylvania.
                          refuge alternatives
    The MINER Act requires NIOSH to provide a report to the Department 
of Labor by December 2007 concerning various refuge alternatives for 
underground coal mines. The MINER Act further requires that 180 days 
after receipt of the NIOSH report, the Department of Labor will report 
to Congress on the actions MSHA will take in response to the report. 
Additionally, MSHA is currently working with state agencies, refuge 
chamber manufacturers and NIOSH, in examining the technical 
considerations for implementing refuge chambers safely. MSHA has hosted 
several informational meetings and demonstrations in which refuge 
chamber manufacturers, NIOSH, industry personnel, and state agencies 
participated.
                    msha continues to protect miners
    MSHA is meeting the requirements of both the MINER Act and the 
Federal Mine Safety and Health Act. Every day, MSHA personnel are 
inspecting mines, issuing citations, reviewing safety and health plans, 
working on regulatory initiatives, and improving both inspector and 
miner training.
    It is important to keep in mind that as MSHA implements the MINER 
Act, the agency is also working to meet its many other statutory 
obligations under the 1977 Mine Act. As you know, MSHA is required to 
inspect each surface mine at least two times a year and each 
underground mine at least four times a year. During the inspections of 
2006, MSHA issued 77,129 citations and orders in coal mines, up from 
69,124 in 2005 and 62,937 in metal and non-metal mines, up from 59,101 
in 2005. Proposed assessments in 2006 totaled $35 million, up from $25 
million in 2005.
    MSHA performs other important duties and activities, including:
  --Investigating mine accidents, complaints of discrimination filed by 
        miners, hazardous condition complaints, knowing or willful 
        violations committed by agents of mine operators, and petitions 
        for modification of mandatory safety standards;
  --Developing improved mandatory safety and health standards;
  --Proposing assessments and collecting civil penalties for violations 
        of mine safety and health standards and the Mine Act;
  --Reviewing and approving mine operators' ventilation and dust 
        control, roof control and other mine plans, and education and 
        training programs;
  --Maintaining the National Mine Health and Safety Academy to train 
        inspectors, technical support personnel, and mining industry 
        personnel;
  --Approving certain mining products for use in underground coal and 
        gassy metal and nonmetal mines to ensure they do not cause a 
        fire or explosion;
  --Providing technical assistance to mine operators;
  --Providing assistance to mine operators in improving their education 
        and training programs;
  --Cooperating with states in the development of mine safety and 
        health programs;
  --Making grants to states in which mining takes place; and
  --Overseeing rescue and recovery operations at mines nationwide.
    Additional comments on the House Education and Labor majority staff 
report are attached.
 MSHA Responses to Education and Labor Committee Staff Report on MINER 
                           Act Implementation
                     the emergency evacuation rule
    The report makes several erroneous statements about the emergency 
evacuation plans mandated by section 2 of the MINER Act.
    Charge. ``The Rules and When They Take Effect, Vary Mine by Mine.'' 
The report claims that the emergency evacuation plan required by the 
MINER Act is not being enforced with consistent criteria, thus the 
MINER Act protections ``are not being implemented.'' Furthermore, the 
report charges that ``implementation of the rules set out in the MINER 
Act is occurring only gradually in many mines,'' because of the time 
being given to operators to comply with these provisions.
    Answer. As with other required underground mine plans such as roof 
control and ventilation plans, the Emergency Response Plans (ERPs) are 
required for each mine and must be tailored to the individual mine. A 
``one size fits all'' implementation standard is neither practical nor 
in the best interests of mine safety and health, given the unique and 
various conditions that exist in each underground coal mine. MSHA 
district managers always have the latitude to request additional 
information to render an informed decision on the approval or 
disapproval of the plans, and to issue citations for violations of a 
plan as called for in the act.
    The ERP plans must address specific items required by the MINER Act 
through various options or alternatives. These variations are based on 
mine operator submissions, which take into account mine specifics and 
unique features such as mine size, overall mine design and layout, 
mining environments and other physical considerations, and mining 
methods. As various portions of the ERPs are approved by MSHA, mine 
operators are expected to fully comply with the approved components of 
the plan.
    In some instances, mine operators are given a reasonable period of 
time to implement certain portions of their approved ERPs, which is 
normally based on market availability and delivery schedules of 
materials and equipment.
    More details are provided about these instances in ensuing sections 
of this response.
    Charge. The report charges that miners are missing SCSRs and that 
the problem is ``in part due to MSHA policies.''
    Answer. MSHA does not dispute that miners are missing SCSRs. This 
deficiency is because of a large backlog of SCSR orders from SCSR 
manufacturers as result of the large increases in the numbers of SCSRs 
required by the MINER Act. Due to this backlog, operators are 
considered to have made a good faith effort in obtaining the SCSRs 
either by taking physical delivery of the SCSRs or providing a purchase 
order with a delivery date. The current shortage of SCSR units is 
approximately 90,000. MSHA is working diligently with the mining 
community to reduce this backlog and comply with the requirements of 
the MINER Act concerning SCSRs.
    Charge. ``So although the third manufacturer of SCSRs (Draeger) has 
a surplus of thousands of these lifesaving devices, miners remain 
without them.'' The report states ``. . . but of course compliance with 
this request is not required.''
    Answer. Recognizing the overwhelming preference of coal mine 
operators and of miners for units from the other two manufacturers (CSE 
and Ocenco), MSHA has asked mine operators and these two SCSR suppliers 
to cooperate and give priority in supplying SCSRs to those mines that 
do not have at least two SCSRs per miner, or to those with the worst 
shortages. MSHA is working closely with SCSR manufacturers and there is 
no evidence that manufacturers are not cooperating.
    If MSHA required operators who currently use CSE and Ocenco's in 
their mines to purchase the Draeger units as called for in the staff 
report, miners could face another set of serious safety issues. Mixing 
different types of SCSRs that use different technology or donning 
procedures could result in confusion and delay in donning and 
activating the device during an emergency situation. Therefore, MSHA 
and the United Mine Workers of America believe that it is not in the 
best interest of safety to mix SCSR types at a mine.
    Charge. The report further states that ``SCSRs have a history of 
failure'' and mentions 250 units ``manufactured in recent years being 
pulled'' by MSHA in January 2007.
    Answer. MSHA has, in fact, recalled MSA Lifesaver 60 SCSRs. MSA 
issued a recall in 2002 on these devices due to potential problems with 
the chlorate candle starters. This recall was extended to a wider range 
of manufacturing dates in 2006. MSA has received cooperation from mine 
operators to remove these devices from their inventories. These SCSRs 
are no longer being manufactured, and operators will have to replace 
these models with other types of SCSRs. Since CSE and Ocenco are the 
predominant SCSR manufacturers in the United States, this MSA recall 
had a de minimis effect on the backlog.
    The Emergency Mine Evacuation final rule requires that mine 
operators report their SCSR inventories to MSHA. This national 
inventory will constitute the first time an accurate count of SCSRs 
will be made, including manufacturer, type of model SCSR, serial 
numbers, and dates of manufacture. This inventory will serve as the 
basis for the random sampling of SCSRs. MSHA developed a computer-based 
reporting system which mine operators will be able to access from the 
MSHA website, as well as a form for reporting SCSR inventories.
    Charge. ``MSHA has declined to conduct random sampling of the SCSR 
units stocked by mine operators, nor is it required to by the MINER 
Act.''
    Answer. In the past, a true random sampling procedure for testing 
SCSRs was impossible for MSHA to implement without inventory 
information. However, it is not a true statement that SCSRs are not 
checked for reliability. For the past 26 years, MSHA has cooperated 
with NIOSH by assisting with the Long Term Field Testing (LTFT) of 
SCSRs. NIOSH has selected the numbers and types of SCSRs to be 
collected, and MSHA has assisted with mine contacts and collection. The 
selection of SCSRs was based on estimated market share by manufacturer. 
NIOSH performs the testing and writes the reports. NIOSH has recently 
published a program concept paper on its web site proposing a draft 
redesign of the mine respirator evaluation program and is seeking 
public comment on the proposal. This concept paper includes the 
methodology for selecting the random sample using the new MSHA SCSR 
inventory database mentioned above.
    Charge. The House Committee staff report also states that the large 
purchases of SCSRs--required to comply with the MINER Act--could harm 
the development of new technology to provide breathable air in 
underground mines. Specifically, the report says ``. . . since mine 
operators are currently purchasing many units of existing design to 
meet the requirements of the MINER Act, and these units have an 
official shelf life of many years, it is likely to take a new mandate 
to move new designs into place quickly.''
    Answer. The pursuit of new technology continues, as evidenced by 
MSHA's coordination with NIOSH to develop dockable and hybrid SCSRs. 
MSHA personnel also participated in the SCSR workshops, sponsored by 
both NIOSH and MSHA in 2005 and 2006, where concepts for both of these 
new types of SCSRs were developed. MSHA also has been involved in the 
evaluation of SCSR proposals through the NIOSH Request for Proposal 
(RFP) process.
    While some SCSR models have a ``service life'' of 10 years, and 
others have service lives of 15 years, operators are able to introduce 
new technology at any time. In addition, MSHA has worked with one mine 
operator and Draeger to utilize SCBAs (self-contained breathing 
apparatus) similar to those used by firefighters, with quick-fill 
connections and quick-fill stations to meet the requirements of the 
MINER Act. The SCBAs will be used in conjunction with SCSRs that will 
be carried on miners' belts and on man-trips. This will provide another 
choice for operators who currently have plans to utilize only SCSRs.
    In addition, NIOSH introduced proposed changes to their approval 
regulations for SCSRs in 2006 as specified in 42 CFR Part 84, which 
would expedite the introduction and adoption of new technology into the 
mining industry. Under this proposal, breathing and metabolic 
simulators would be used instead of man tests and the test criteria 
would be changed. In addition, NIOSH has proposed that SCSR 
manufacturers would need to meet the new criteria within 6 years from 
enactment of the new regulations.
    Charge. ``Miners are still not Receiving Adequate Evacuation 
Training,'' and expectations training in particular, because ``. . . 
requirements that mine operators provide such training will take effect 
only after MSHA certifies that the training units which can provide a 
simulated experience of using an SCSR are readily available.''
    Answer. All manufacturers have developed training devices that 
simulate both the heat and breathing resistance a miner may experience 
using an SCSR. These devices are required by the December 8, 2006, 
final rule. These training devices are now available and MSHA is 
publishing a Federal Register notice to announce their availability. 
Operators will have 30 days from publication of the notice to purchase 
the units and 60 days from receipt of the units to provide training.
    Charge. ``However, mine operators are not required to allow miners 
to actually turn on the SCSR and breathe with it. While this saves the 
cost of obtaining additional SCSRs, it also means this quarterly 
training does not provide miners with the sensation of what it is like 
to actually use an SCSR.''
    Answer. Advanced training in SCSR use during simulated mine 
evacuations is being implemented. MSHA's final rule on Emergency Mine 
Evacuation required increased self-rescuer training, including 
instruction and demonstration in the use, care, and maintenance of the 
self-rescue devices used at the mine. The final rule specifically 
requires that miners must insert the mouthpiece as part of the 
quarterly training. As part of the ERP requirements, mine operators 
must include SCSR hands-on training in donning and transferring from 
one SCSR to another for each type of SCSR carried or stored in the 
mine. Each mine operator's ERP must also provide for one of the 
quarterly drills to take place in artificial smoke or in an environment 
simulating smoke, and MSHA inspectors are checking for mine operator 
compliance with these ERP provisions.
    Charge. The report states that miners still lack good emergency 
communications systems. Specifically, the report states that ``MSHA 
could require these systems (communications systems described in the 
report) prior to 2009; it has chosen not to do so. Moreover, it (MSHA) 
has elected not to require one-way communication devices either.'' This 
section of the report concludes ``While waiting for a more perfect 
technology saves mine operators money, it places miners' lives at 
risk.''
    Answer. MSHA disagrees with the charge that MSHA is failing to 
implement these provisions because it ``saves mine operators money.'' 
MSHA is actively implementing the provisions of the MINER Act, based on 
the requirements of the Act as passed by both Houses of Congress.
    The MINER Act requires underground communication systems to be 
implemented in two stages. Stage 1 is the provision in the ERPs for 
post-accident communications by means of redundant communication 
systems with the surface. Stage 2 is the provision in the ERP for post-
accident communication between underground and surface personnel via a 
wireless two-way medium by June 15, 2009. Also, between January of 2006 
and March 26, 2007, MSHA approved 3 new tracking and communication 
systems and 12 approvals for modification to previously approved 
systems via the Revised Approval Modification Program (RAMP). While 
these are not wireless systems, they will provide more communications 
options. MSHA's foremost concern is the safety of miners. With this as 
a priority, MSHA is implementing the requirements of the MINER Act as 
specified.
    Charge. The report incorrectly states that ``many manufacturers 
already produce two-way wireless systems, and many such systems have 
been installed in mines around the world.''
    Answer. MSHA representatives have traveled to Australia and Germany 
in the last year, and NIOSH representatives have visited additional 
countries to research and evaluate the availability and functionality 
of two-way wireless systems. MSHA is unaware of any fully wireless two-
way communication system used in an underground mine anywhere in the 
world.
    The Personal Emergency Device (PED), which received a great deal of 
media and Congressional attention as a wireless solution, is a one-way 
paging system that would only be useful after a fire or explosion only 
if the required loop antenna were installed on the surface. Most U.S. 
mines install the loop antenna underground because they do not own 
surface rights or the topography is not amenable to surface 
installation. An underground loop antenna would be susceptible to 
damage in a fire or explosion. Surface antenna, depending on geology 
and depth from the surface, does not always provide dependable one-way 
communication.
    Charge. The report correctly states that MSHA must examine two-way 
communication systems to ensure they are intrinsically safe and further 
states that ``this approval process can often take 1-2 years, although 
MSHA has promised to give such wireless communication systems top 
priority.''
    Answer. Products used in underground mining have to meet 
requirements that are not needed for above ground use. The possible 
presence of methane and combustible dust along with tough environmental 
conditions impose unique demands on communications equipment. This 
equipment must also be able to withstand an explosion in order to be 
effective after an accident. Therefore, MSHA works with manufacturers 
to ensure their products can meet the unique safety and reliability 
requirements demanded by underground mining. Although the MSHA approval 
process can sometimes take 1-2 years, the turnaround time can typically 
be significantly less if the applicant provides a complete application 
package initially, and provides timely responses to MSHA requests for 
corrections or test samples. The process timeline can be further 
shortened if the product under evaluation does not require significant 
re-design to achieve compliance or if no test failures are experienced. 
MSHA has made a concerted effort to expedite all applications for 
approval of these devices.
    Charge. ``Underground Miners Still Cannot be Quickly Located.'' As 
in the previous section of the report, the charge is ``The situation 
here is similar to that for two-way wireless communication devices--
there are already approved systems that mine operators could adopt.'' 
The report further states that ``workable electronic tracking systems 
for miners have been around since the 1980s, are not very expensive . . 
. .''
    Answer. To our knowledge, the first electronic tracking device was 
approved by MSHA in 2003 and the only available MSHA-approved tracking 
technology is radio frequency identification (RFID) tags. To use an 
RFID system, the miner wears a ``tag'' that can be identified by 
various ``readers'' located in strategic locations around the mine and 
the system is only as accurate as the spacing of the readers. For 
example, if the readers are located 4,000 feet apart, you can have up 
to 4,000 feet of area where the miner's location would not be known. 
While the ``tag'' is MSHA-approved, the ``readers'' are not MSHA-
approved and therefore, are not safe for use in an explosive 
atmosphere; so miners located in these areas could not be tracked. 
Also, RFID is a wire-based system so functionality may be lost in a 
fire or explosion.
    The MINER Act establishes that no later than 3 years after the date 
of enactment, mine operator plans shall ``. . . provide for an 
electronic tracking system permitting surface personnel to determine 
the location of any persons trapped underground or set forth within the 
plan the reasons such provisions cannot be adopted.'' MSHA continues to 
review and field-test a number of emergency communications and tracking 
systems that represent the most promising technologies for application 
in underground mines. As of February 14, 2007, MSHA had observed 
testing or demonstration of 19 communications and/or tracking systems 
at various mine sites. MSHA technical personnel have met with 
representatives from 48 communication and tracking system companies. To 
date, we have had discussions with various vendors regarding 133 
different proposals for development of mine communications and tracking 
systems. We continue to work with the NIOSH Emergency Communication and 
Testing Partnership to arrange for demonstrations of additional 
systems. We are also assisting NIOSH in the review of proposals 
received in response to the Requests for Proposals (RFPs).
                          underground refuges
    Charge. ``MSHA approval of underground shelters is not required; 
there are no intrinsic safety issues.''
    Answer. The first priority in any mine accident is to evacuate 
everyone from the mine, to the greatest extent possible. The focus of 
the MINER Act is to ensure that miners are adequately trained and 
supplied so that they can safely exit a mine in case of an emergency.
    With regard to underground refuge chambers, MSHA approval for 
permissibility in mines may be required depending on whether the 
shelters use electricity; there may be safety issues when electrical 
systems are used in the refuge shelters. These need to be carefully 
reviewed to ensure that new safety hazards are not created for miners 
after these chambers are installed.
    Further, the MINER Act requires that NIOSH conduct research on 
refuge alternatives and provide its report to MSHA by December 2007 
(the MINER Act does not require NIOSH to provide technical 
specifications to MSHA). Then, the Department of Labor has 180 days to 
respond to the Congress about the report. MSHA began collecting 
technical information about refuge chambers shortly after the Sago mine 
tragedy and continues to do so. In October 2006, MSHA held a Mine 
Rescue Technologies Expo in conjunction with the annual training 
conference at the National Mine Academy in Beckley, West Virginia. The 
Expo served to exchange information on international technologies for 
refuge chambers and other safety advancements in the mining industry. 
MSHA has reviewed prototypes of inflatable stoppings or other quickly 
deployable barricade units that can be used to create a safe haven by 
isolating the trapped miners from the potentially toxic mine 
atmosphere. The study of these devices is ongoing as new products are 
developed and submitted for review.
    Charge. The report charges that MSHA did not implement the 
`breathable air' provisions of the MINER Act in a timely manner.
    Answer. On February 8, 2007, MSHA published the Program Information 
Bulletin, PIB-07-03, as a practical approach that provides options for 
implementing the requirement for breathable air. Mine operators are 
required to include a provision for ``breathable air'' in their 
emergency response plans. The MINER Act required MSHA to study the 
``breathable air'' issue and develop the appropriate response. Prior to 
issuing the PIB, MSHA sought public input by issuing a Request for 
Information (RFI) from experts and the mining community.
    Charge. Referring to the breathable air guidance provided by MSHA, 
the report says ''On February 8, 2007, following a letter from Chairman 
Miller to Secretary of Labor Elaine Chao expressing concern about this 
and several implementation delays, MSHA issued a Program Information 
Bulletin to its district managers and mine operators providing some 
guidance on these points.''
    Answer. MSHA solicited public comment and worked diligently to 
provide options for meeting this requirement.
    Charge. The staff report criticizes the breathable air PIB for not 
providing specific guidance for other safety related issues such as 
protecting oxygen tanks from roof falls, fire hazards, and storage 
concerns, the report says ``The PIB provides no specific guidance on 
this point, although there appear to be some regulations from 1971 that 
remain applicable.''
    Answer. The report does not acknowledge the PIB attachments, which 
provide storage, handling, and use information for compressed air and 
oxygen cylinders, including sketches with suggested storage racks.
    Charge. The report characterizes the ERP submission and approval 
process as follows: ``Mine operators have a month to submit plans, but 
additional delays can be expected as District Managers and operators 
ask for clarification on a variety of alternatives, and individual 
plans are likely to include long implementation timelines for whatever 
approach is ultimately agreed upon.''
    Answer. Congress included an expedited dispute resolution process 
for ERPs in the MINER Act. This expedited process was meant to resolve 
disputes quickly over plan content or a district manager's disapproval 
of a plan. If the districts manager disapproves a plan and issues a 
citation to the operator, the citation must be immediately referred to 
an administrative law judge (ALJ) of the Federal Mine Safety and Health 
Review Commission (FMSHRC). MSHA and the operator must submit all 
relevant material to the ALJ within 15 days of the date of the 
referral. The ALJ of the Federal Mine Safety and Health Review 
Commission must render a decision with respect to the plan dispute 
within 15 days of the submission of material to the judge.
                         qualified rescue teams
    Charge. ``Qualified Rescue Teams are Still not Available at All 
Underground Mines.''--The House staff report goes on to say ``Many 
rescue teams are highly qualified but may not have all the equipment 
and operational support they need to do their jobs; until MSHA 
completes these regulations and implements them, miner protection will 
not be secure.''
    Answer. The latest data indicated that there are currently 161 coal 
mine rescue teams and 152 metal and nonmetal rescue teams. These teams 
consist of company funded teams, state government funded teams, 
contract teams, and teams made up of state employees. These teams are 
all qualified, well equipped, and readily available for underground 
mine rescue. The nation's miners are well served by these mine rescue 
teams.
    MSHA is working to finish its proposed rule on mine rescue teams 
with expected publication this summer. These new regulations are 
scheduled for completion by December 15 2007, as required by the MINER 
Act.
                         disaster communication
    Charge. ``According to some of the Sago families, however, as of 
early this year they were still are not being kept well informed about 
the status of the investigation of this tragedy, and MSHA has not been 
responsive to their requests for information. . .''
    Answer. Despite the implication of the staff report, the Agency has 
completed several additional actions to fully implement Section 7 of 
the MINER Act, including:
  --A Program Policy Letter was issued on December 22, 2006, to 
        describe implementation of Section 7 of the MINER Act with 
        regard to both the Primary Communicator and the Family Liaison.
  --On the same day, the Assistant Secretaries of the Office of Public 
        Affairs and the Mine Safety and Health Administration signed a 
        protocol firmly establishing Departmental support of a Primary 
        Communicator in accident cases where multiple miners are 
        trapped, unaccounted for, or where multiple fatalities have 
        occurred.
  --Procedural instructions were issued to require the appropriate 
        application of personnel and resources to meet the obligation 
        for Family Liaison and Primary Communicator. These materials 
        are available on the MSHA website and have been released to the 
        mining community and the general public.
  --In January 2007, MSHA trained 14 employees to act as family 
        liaisons at future mine accidents where multiple miners are 
        trapped, unaccounted for, or where multiple fatalities have 
        occurred. These individuals were selected based on their 
        credentials as technical mining experts, as well as their 
        ability to perform in stressful situations and in effective 
        communications. Training was provided by experts from the 
        National Transportation Safety Board and the Red Cross--
        organizations having vast experience with grief management and 
        communications with families, media, and the public. The 14 
        employees are fully capable of filling the role of family 
        liaison. To assure the rapid availability of family liaisons, 
        additional employees will be trained in the future.
    In both the Aracoma and Darby mine accidents, the lead accident 
investigators have worked directly with family members to keep them 
informed of progress in the investigations. Also, the lead 
investigators attempted to respond to all questions and requests as 
quickly as possible. We are unaware of any outstanding complaints by 
the families of the Aracoma and Darby accident victims.
    At Sago, a family liaison was assigned after the rescue and 
recovery operations were completed. Both the assigned liaison and the 
lead accident investigator have made every effort to respond to the 
questions and requests of the Sago families in a timely manner. The 
MSHA Sago mine accident investigation team, accompanied by the 
Associate Solicitor for Mine Safety and Health, held several meetings 
with family members which were intended to keep them fully apprised on 
the progress of the investigation. Senior MSHA personnel will also meet 
with the families again when the accident investigation report is final 
and released to the public.
                               mine seals
    Charge. The report declares that ``practically all underground coal 
miners are in imminent danger'' based on a draft report from NIOSH on 
mine seals.
    Answer. The buildup of methane and the possibly improper 
installation of mine seals present a serious hazard.
    The sealing regulations that were promulgated in 1992 allowed for 
alternative seals provided they withstand a static horizontal pressure 
of 20 pounds per square inch (psi) and their method of installation and 
the material used are approved in the ventilation plan. Tests were 
conducted in the NIOSH Lake Lynn experimental mine that indicated an 
alternative seal could withstand the 20 psi test.
    However, after the mine accidents at Sago and Darby mines in 2006, 
MSHA took action to reduce the risk associated with alternative seal 
construction and increased the psi standard by 150 percent, from 20 to 
50 psi. Beginning on June 1, 2006, prior to passage of the MINER Act, 
MSHA took several actions to increase protection for miners. The agency 
required: a temporary moratorium on the construction of new alternative 
seals; operators to assess the atmosphere behind sealed areas of 
existing alternative seals; operators to take remedial action if the 
atmosphere behind the seal had the potential for an explosion; strength 
and construction requirements for new alternative seals; inspection and 
maintenance of existing alternative seals, including corrective action 
when necessary; and MSHA approval of new alternative seals. MSHA is 
considering whether other interim measures would be appropriate at this 
time.
    MSHA is constantly evaluating mine seals in a critical and 
systematic fashion. This includes an evaluation of the integrity of the 
seals as well as removing a portion of the coating on block seals to 
determine if the mine operator had constructed the seals in accordance 
with the ventilation plan requirements. The results of these efforts 
can be seen in the enforcement activities of MSHA. From January 1, 
2006, to March 6, 2007, a total of 558 seal violations were issued 
nationwide. MSHA has examined all existing seals and taken corrective 
action where necessary.
    Section 10 of the MINER Act requires that the Department of Labor 
finalize mandatory health and safety standards relating to the sealing 
of abandoned areas in underground coal mines and provide for an 
increase in the 20 psi standard, no later than December 15, 2007. MSHA 
anticipates the publication of a proposed rule on seals by summer 2007.
    On February 9, 2007, NIOSH issued a draft report on seals entitled 
``Explosion Pressure Design Criteria for New Seals in U.S. Mines'' and 
asked for public comments to be considered and evaluated before NIOSH 
produces a final report. MSHA will consider the research that NIOSH has 
completed and will continue to work with NIOSH as MSHA drafts its 
proposed rule.
                      conveyor belts and belt air
    Charge. The report does not make specific charges against MSHA with 
regard to belt air. Instead, the report states that there are proposals 
to suspend the belt air rule or outlaw the use of belt air to ventilate 
a mine. One bill would ban belt air (i.e. to return the approach to 
what it was before the Bush administration rule).
    Answer. The MINER Act provides that MSHA convene a technical study 
panel with members appointed by the Congress and the Departments of 
Labor and Health and Human Services. The Panel was duly established by 
the Department of Labor to provide independent scientific and 
engineering review and recommendations with respect to the utilization 
of belt air and the composition and fire retardant properties of belt 
materials in underground coal mines.
    MSHA convened the first meeting of the panel in January, 2007 and 
the next meeting is scheduled for March 28, 29 and 30. Within one year 
after the members' appointment, the Panel will submit a report to the 
Secretary and the Congressional Committees concerning the use of belt 
air and the composition and fire retardant properties of belt materials 
in underground coal mines. No later than 180 days after receiving the 
report, the Secretary of Labor will respond to the Congressional 
Committees by describing what actions, if any, will be taken based on 
the report, and the reasons for those actions.
    The Federal Coal Mine Health and Safety Act of 1969 and the Federal 
Mine Safety and Health Act of 1977 that superseded it, provided that 
entries used as intake and return air courses be separated from belt 
haulage entries, and that air coursed through belt entries be 
prohibited from ventilating active working places. However, technology 
improved over time and some mines submitted petitions for modification 
under section 101(c) of the Mine Act to allow the use of belt air at 
the working faces provided that certain conditions were met, including 
the use of atmospheric monitoring systems in entries to monitor 
conditions and detect combustion at the early stages of a fire.
    There were 204 petitions for modifications that were granted to 
allow the use of belt air as an additional intake air course between 
1979 and 2003. As of February 7, 2007, 45 coal mines use belt air to 
ventilate working faces.
    On April 2, 2004, MSHA issued its final ``Belt Air Rule,'' which 
eliminated the need for operators to file for petitions for 
modification. The protections under the final rule, however, are at 
least equal to those contained in the belt air petitions for 
modifications that were granted and offer the same or an increased 
level of protection to miners. In addition, all conveyor belts used in 
underground coal mines are subject to the flammability testing as 
stipulated in 30 CFR Part 18.65, which establishes the flame resistance 
testing and acceptance requirements for conveyor belt materials. MSHA 
flame resistance testing is conducted at MSHA's Approval and 
Certification Center in Triadelphia, WV.
                    detecting methane gas and fires
    Claim. The report discusses the necessity for ``electronic 
detection devices that can avoid explosions and serious fires by 
detecting for methane, carbon monoxide and smoke . . .'' and further 
states that ``until action is taken, miners' lives remain at risk.''
    Answer. MSHA took action to increase the numbers of multi-gas 
detectors in underground coal mines in the Mine Emergency Evacuation 
Rule, issued on December 8, 2006. In this rule, MSHA requires that the 
mine operator provide an MSHA-approved, handheld, multi-gas detector, 
which can measure methane, oxygen and carbon monoxide, to each group of 
miners and to each miner working alone, that at least one miner in each 
group be a qualified person and that each miner working alone be 
trained to use the detectors to take gas readings and to interpret the 
readings. Provisions are included in the Emergency Mine Evacuation 
final rule that the detector must be maintained and calibrated as 
specified by MSHA regulations.
                           penalty assessment
    Charge. The report makes several charges regarding penalties. The 
first is that ``MSHA has never actually issued a `pattern of 
violations' citation.''
    Answer. The Mine Act authorizes MSHA to issue a withdrawal order 
under certain conditions disclosed by an inspection conducted within 90 
days after a notice that the mine operator has a pattern of violations 
of mandatory standards that could have significantly and substantially 
contributed to mine hazards. MSHA has a regulation that provides for a 
letter warning mine operators that they have a potential pattern of 
violations before the statutory notice is issued. While MSHA has issued 
such letters, it has never proceeded to issue the statutory notice. 
MSHA has recently initiated the development of objective criteria to 
identify mines that may have a pattern of violations. Once this new 
criteria is in place, MSHA will issue pattern of violations notices and 
orders where warranted.
    Charge. ``MSHA does not have authority to close down entire mines; 
only sections thereof.''
    Answer. MSHA has authority to shut down an entire mine if the 
hazard being cited affects the entire mine. MSHA inspectors determine 
the extent of the area in the mine affected by an imminent danger or 
closure order and will close that area of the mine, or the entire mine, 
depending on the conditions they observe. For example, if there is a 
major ventilation problem at the mine causing high levels of methane to 
be detected, the entire mine is considered the affected area. An MSHA 
inspector would immediately close down the entire mine until the 
condition is abated.
    MSHA district managers retain the right to approve or disapprove 
ventilation, roof control, or emergency response plans at each 
underground coal mine. This authority can also be used to close a mine 
because, without an approved plan, a mine operator is not allowed to 
legally operate the mine. It is the mine operator's responsibility to 
develop and follow a plan which incorporates safe and healthful plan 
provisions.
    Charge. MSHA's approval authority regarding mine plans ``simply 
leads to negotiation over implementation.''
    Answer. The MINE Act provides the operator is entitled to adopt a 
plan and the Secretary to grant approval. The process often requires 
discussion and some refinements to the operator's proposed plan. MSHA 
disagrees with the assertion that implies that inadequate plans are 
approved. Compliance with MSHA's health and safety requirements are not 
negotiable. Mine operators must submit a plan for approval or they 
cannot operate the mine. MSHA will not approve a plan that is 
inadequate.
    MSHA proposes assessments which a mine operator may pay in full or 
contest before the Federal Mine Safety and Health Review Commission 
(Commission). The Commission has the authority to assess penalties. 
When MSHA proposes assessments it takes into account the six statutory 
criteria which also guide the Commission. These criteria are: (1) the 
operator's history of previous violations; (2) the appropriateness of 
such penalty to the size of the business of the operator charged; (3) 
whether the operator was negligent; (4) the effect on the operator's 
ability to continue in business; (5) the gravity of the violation; and, 
(6) the demonstrated good faith of the person charged in attempting to 
achieve rapid compliance after notification of a violation.
    MSHA's new civil penalty final rule was published in the Federal 
Register on March 22, 2007. The final rule will result in an across-
the-board increase in penalties; the amounts will increase more 
significantly for operators with histories of repeat violations of the 
same standard and operators whose violations involve high degrees of 
negligence or gravity. The final rule eliminates the single penalty 
assessment provision of $60 for non-significant and substantial 
violations in favor of a regular assessment. It also includes minimum 
penalties of $2,000 and $4,000, depending on whether there is a 
withdrawal order for unwarrantable failure violations. In addition, 
flagrant violations--those involving ``a reckless or repeated failure 
to make reasonable efforts to eliminate a known violation of a 
mandatory health or safety standard that substantially and proximately 
caused, or reasonably could have been expected to cause, death or 
serious bodily injury''--may receive a maximum penalty of $220,000. 
Finally, a mine operator who fails to timely notify MSHA of a death, or 
injury or entrapment with a reasonable potential to cause death, may 
face penalties between $5,000 and $60,000.
                          msha mission support
    Claim. The report states that it is ``too early to assess whether 
MSHA is properly training new inspectors.''
    Answer. Training enforcement personnel.--MSHA has revised the 
training requirements for new coal mine inspectors. In the past, entry-
level training was stretched out as much as 2 years. By hiring 
additional instructors at the Mine Academy, revising the training 
schedule, condensing time between class modules, and streamlining the 
delivery of the training curriculum, inspectors can now graduate in 
approximately 1 year with the same or better skills. Some of the 
training is now done on line or in the new inspector's home district 
and some training classes have been combined to improve the efficiency 
and effectiveness of the training program. Listed below are classes 
within the trainee curriculum.
    Orientation/Introduction to MSHA; Diversity; Effective Writing; 
Intro to Laptops; Law Regulation and Policy; Notetaking/Citations and 
Order Writing; Root Cause Analysis; Inspection Procedures; Inspectors 
Portable Application for Laptops (IPAL); Workplace Examinations; 
Longwall; Mine Maps/Gas Detecting Devices; Simulated Inspection; 
Electrical Permissibility; Diesel Permissibility; Combustible Materials 
and Rockdusting; Professionalism; Safety Talks I; Part 48 Training 
Requirements; Part 50 Reporting Requirements & Auditing; Conference 
Presentation Preparation PP; Conference Presentation; Introduction to 
Special Investigations; Noise/Respirable Dust; Interviewing Techniques; 
Mine Act 107(a)/103(g); Fire Protection; Ventilation; Accident 
Investigation; Ground Control; Part 45 Contractors; and Mine Act 
104(g)/Part 48.
    The Interim Staff Report states that ``it is important that these 
inspectors not be permitted to go out on their own until they have 
completed adequate training, as they could miss life-threatening 
hazards.'' MSHA concurs with this assessment. Currently, the trainee is 
not permitted to receive his/her authorized representative (AR) card 
until criteria have been fulfilled, including successful completion of 
Academy training modules and satisfactory evaluations of the trainee 
from the Academy Instructor, trainee's supervisor to District and Coal 
Headquarters management. In addition, the trainee must have completed 
on-the-job training and demonstrated, during supervisory- and 
inspectors-accompanied inspections, the ability to independently 
conduct periodic on-site health and safety inspections at coal mines.
    Hiring Enforcement Personnel.--With the special supplemental 
funding from Congress, MSHA is in the process of hiring an additional 
170 new coal enforcement personnel. The hiring will occur over 5 
quarters beginning in July 2006 and ending on September 30, 2007. The 
chart below shows the number of enforcement personnel hired, broken 
down by district, per quarter. To date, MSHA has filled their 
commitments through the first three quarters of the hiring plan.

------------------------------------------------------------------------
                     Date and district                          Hired
------------------------------------------------------------------------
July 2006-September 2006:
    District 3, Bridgeport, WV.............................            3
    District 3, Morgantown, WV.............................            2
    District 4, Mt. Hope, WV...............................            6
    District 4, Mt. Carbon, WV.............................            1
    District 4, Logan, WV..................................            1
    District 4, Madison, WV................................            1
    District 4, Princeton, WV..............................            1
    District 7, Barbourville, KY...........................            4
    District 7, Hazard, KY.................................            1
    District 9, Gillette, WY...............................            1
                                                            ------------
      Total................................................           21
                                                            ============
October 2006-December 2006:
    District 2, Clearfield, PA.............................            2
    District 3, Morgantown, WV.............................            1
    District 3, St. Clairsville, OH........................            1
    District 4, Madison, WV................................            1
    District 4, Logan, WV..................................            1
    District 5, Norton, VA.................................            2
    District 5, Vansant, VA................................            2
    District 6, Whitesburg, KY.............................            2
    District 6, Martin, KY.................................            2
    District 6, Hindman, KY................................            1
    District 8, Vincennes, IN..............................            1
    District 9, Craig, CO..................................            3
    District 10, Madisonville, KY..........................            1
    District 10, Morganfield, KY...........................            1
                                                            ------------
      Total................................................           21
                                                            ============
January 2007--March 31, 2007:
    District 2, Clearfield, PA.............................            2
    District 2, Indiana, PA................................            1
    District 2, Johnstown, PA..............................            1
    District 2, Ruff Creek, PA.............................            4
    District 3, St. Clairsville, OH........................            4
    District 4, Madison, WV................................            1
    District 4, Pineville, WV..............................            1
    District 5, Norton, VA.................................            2
    District 5, Vansant, VA................................            2
    District 6, Martin, KY.................................            1
    District 7, Barbourville, KY...........................            1
    District 7, Harlan, KY.................................            3
    District 7, Hazard, KY.................................            2
    District 8, Hillsboro, IL..............................            1
    District 9, Delta, CO..................................            1
    District 9, Gillette, WY...............................            1
    District 9, Price, UT..................................            1
    District 10, Beaver Dam, KY............................            1
    District 10, Madisonville, KY..........................            1
    District 11, Bessemer, AL..............................            1
                                                            ------------
      Total................................................           32
------------------------------------------------------------------------

    In addition, MSHA's goal is to backfill retiring enforcement 
personnel. Our goal is to not only hire 170 supplemental hires by 
September 30, 2007, but to replace enforcement personnel lost to 
attrition such as retirements, at a one-to-one rate. As of March 19, 
2007, an additional 51 enforcement personnel have been hired thereby 
offsetting the vast majority of losses realized through attrition. At 
the end of fiscal year 2007, MSHA is projecting to have 757 enforcement 
personnel on board. This staffing would mark the highest level of coal 
enforcement personnel since 1994.
                               conclusion
    MSHA disagrees with the conclusion of the staff report that the 
agency [is] ``failing to self-initiate important safety improvements.'' 
It further states that MSHA ``needs to do better, and quickly move on 
to address the many other critical safety and health risks to miners 
that require prompt attention before new disasters occur.''
    MSHA is moving aggressively to implement important new safety 
improvements in the MINER Act. Since passage of the MINER Act, MSHA has 
taken the following regulatory and special emphasis enforcement 
actions:
  --Published final rule on Emergency Mine Evacuation implementing many 
        mandated provisions; final rule requires additional SCSRs, 
        improved SCSR and drill training, directional lifelines, and 
        multi-gas detectors for underground coal mines, and prompt 
        accident notification for all mines;
  --Issued final rule on civil penalties, including penalty provisions 
        in the MINER Act; final rule published March 22, 2007;
  --Issued guidance to help operators develop emergency response plans;
  --Issued guidance to operators on post-accident breathable air;
  --MSHA is considering 13 flagrant violation citations and orders, a 
        first in the Agency's history.
  --Issued policies on family liaison and primary communicator 
        positions--trained MSHA officials to be family liaisons;
  --Issued guidance to mine operators and MSHA personnel on alternative 
        seals: increased the strength requirement; improved inspection 
        and monitoring requirements; and improved approval 
        requirements;
  --Inspected all seals, requiring corrective action where necessary;
  --Evaluated testing and/or demonstration of post-accident 
        communications and tracking systems;
  --Established the Technical Study Panel on the Utilization of Belt 
        Air; held the first meeting;
  --Drafting proposed rules on mine rescue teams and sealing of 
        abandoned areas in underground coal mines;
  --Initiated a special emphasis program in two districts to help 
        identify and reduce risks to miners who are engaged in retreat 
        mining;
  --Initiated a special emphasis program to reduce health risks to 
        miners exposed to coal dust;
  --Developing a new protocol to be rolled-out soon for addressing 
        mines that exhibit a ``pattern of violations;''
  --Approved two proximity protection systems, providing improved 
        protection to miners who work underground near dangerous 
        equipment; and
  --Hired 125 new coal enforcement personnel as a result of 
        Supplemental Appropriations and plans to hire a net of 170 coal 
        enforcement personnel by September 30, 2007.
    MSHA believes that this list of accomplishments demonstrates solid 
commitment to improving safety in our Nation's mines.

    Senator Harkin. I just have one question for Dr. Howard. 
What I'm concerned about, is how we maintain an interest in new 
technology, when there hasn't been a recent disaster--thank 
God--and when we've had this massive new legislation passed. To 
get new innovations, and especially when you're not talking 
about something that is going to be widely used, where maybe an 
innovator might make a lot of money, because they sell millions 
of these units, there's just not that big of a demand out there 
for the kind of innovation, perhaps, that we're talking about.
    I'm intrigued by groups like the X-Prize Foundation that 
offer prize money for innovation. Every year, NASA offers up to 
$500,000 in the Centennial Prize Program to the first company 
or individual to solve a technology problem.
    The Defense Advance Research Project Agency--DARPA, as we 
all know--offers up $2 million in the Grand Challenge program 
to whatever company shows that their technology will solve a 
problem that DARPA has come up with. Should we do something 
like that? How about annual prize in mine safety innovation? 
Hold out a $1 million or $2 million out there, something like 
that. Have you have ever considered that?
    Dr. Howard. I think it's a great idea. Would we have the 
resources to accomplish that, we'd be happy to do that. I think 
it's a very innovative idea.
    Senator Harkin. Well, maybe we ought to think about getting 
the resources out there. Because, it just seems to me, this is 
like that kind of a situation. Where you want to encourage 
innovation, but there's not a huge market out there for it. 
But, it's a problem that needs to be solved.
    Well, we'll discuss it further with you on that. That's all 
I have, and with that, we--did you have anything else to add, 
Mr. Stickler, or Dr. Howard, or Dr. Kohler, any last things 
before we dismiss you? Time is running out, we should get our 
next panel.
    Senator Byrd. May I ask a question here?
    Senator Harkin. Oh, I'm sorry, yes.
    Senator Byrd. Dr. Howard and Mr. Stickler--last summer, the 
weekly mortality and morbidity report by the CDC noted clusters 
of rapidly progressive pneumoconiosis, black lung, among miners 
in Southwestern Virginia, and Eastern Kentucky.
    The article noted several possible reasons for the 
continuing occurrence of advanced cases of black lung. That the 
current Federal respirable dust limit is too high, and it needs 
to be lowered, or that the severity of black lung may be 
increasing because of the toxicity of the coal being mined. I 
suggest a third possible reason, namely that MSHA may not be 
enforcing the current dust laws as effectively as they should 
be. How do you explain the appearance of such aggressive cases 
of black lung?
    Dr. Howard. Senator, we are actively investigating the 
outbreak of coal workers' pneumoconiosis in relatively young 
miners in certain counties along the Kentucky, Virginia, West 
Virginia border. Like us, we're looking at those kinds of 
possibilities. But we, today, cannot tell you exactly what the 
cause is.
    We have briefed United Mine Workers, we have briefed the 
industry, we have briefed MSHA, and I think we--hopefully--can 
all work together to give you those answers, so that we know--
beyond reasonable doubt--what the issues are. We need to solve 
this problem.
    Senator Byrd. I hope you will continue to actively pursue 
that.
    Would you respond, too, Mr. Stickler?
    Mr. Stickler. I met with Dr. Howard and the folks at NIOSH 
on this, and discussed the issues and some of the concerns 
about hot-spot areas, in other words, areas where there seems 
to be a higher prevalence of black lung disease, particularly 
among young miners.
    We talked about some of the things that we can do, and one 
idea that we're going forward on is identifying the mines that 
these individuals are showing first-stage black lung, or 
pneumoconiosis, identifying the mines that they work at now, 
and in the past. MSHA plans to focus our enforcement to 
increase the enforcement at those operations, and also increase 
the amount of education and training to get people to 
understand the risk that they're taking, when they're exposed 
to coal dust.
    Senator Byrd. I compliment you, and I hope you'll continue.
    Mr. Stickler. Thank you.
    Senator Harkin. Thank you, Mr. Chairman.
    Well, I thank this panel, you're dismissed, we'll call up 
our second panel.
    Mr. Cecil Roberts, Mr. Bruce Watzman, Mr. Davitt McAteer, 
and Mr. Chris Hamilton.
    We'll start with this panel in the order that I have them 
listed here, we'll start first with Mr. Cecil Roberts, 
International President of the United Mine Workers of America.
    President Roberts is a sixth-generation coal miner, both of 
his grandfathers were killed in the mines before he was born. 
He graduated from West Virginia Technical College, where he 
also received an Honorary Doctorate in Humanities.
    Then, we'll go with, then, Mr. Watzman, Mr. McAteer, and 
Mr. Hamilton, in that order.
    Mr. Roberts, great friend, welcome to this committee, and 
please proceed.
    Again, all of your testimonies will be made a part of the 
record in their entirety. If you could just sum it up in 5 
minutes, I'd sure appreciate it.
STATEMENT OF CECIL ROBERTS, INTERNATIONAL PRESIDENT, 
            UNITED MINE WORKERS OF AMERICA, WASHINGTON, 
            DC
    Mr. Roberts. Thank you, Mr. Chairman.
    I want to thank you for conducting this hearing today, I 
know it was at the urging of my dear friend, and the coal 
miner's best friend, ever, Senator Byrd.
    I also want to thank you and Senator Specter for your 
leadership last year, when this issue came before you. I know 
that Senator Shelby came in, and I met him--unfortunately--
during the 2001 Jim Walters No. 5 disaster, and he showed great 
compassion at that time.
    I also think it would be very appropriate if I could 
express on behalf of the coal miner's of this Nation, the 
families who suffered through these disasters last year, our 
deep appreciation to all of you, for what you've done to try to 
make things better, and the coal miners of the United States of 
America. I know I speak on their behalf in expressing their 
appreciation.
    I think it would be important to note something that I 
think has been expressed here today. What would happen tomorrow 
morning in the Nation's coal mines if we had a similar 
explosion--God forbid--as we did on January 2, 2006? The truth 
of the matter is, that we would have the same types of 
problems, if this occurred tomorrow morning. Why is that?
    It is true that this MINER Act is a wonderful piece of 
legislation, and it mandates many things that we asked for at 
the time of this debate a year ago. The amount of oxygen that 
has been required by MSHA, we applaud, it's 96 hours of oxygen. 
I remind you, had the Sago miners had access to 96 hours of 
oxygen, they--at least 11 of those 12 miners--would be here 
with us today. So, that is a step forward. The problem we have 
is that all mines do not have 96 hours of oxygen underground, 
currently, because of one of the problems that was outlined by 
Mr. Stickler here, previously.
    I'm going to speak, I'm going to somewhat--as I listened to 
the testimony earlier, so that we could have a feel for where 
we find ourselves today. One of the questions that was posed 
earlier, was this question of flammable belts and ventilating 
the face with belt air. If we recall, last year we pointed out, 
in 2001 there were 17 rules that were pending in 2001 that were 
eliminated by the new administration when they took office. One 
of those rules that happened to be pending at that time, 
Senator Specter, dealt with flammable belts. So, to suggest 
that we can't do anything about flammable belts, we were well 
on the way in 2001 towards doing something with respect to 
flammable belts.
    This issue of ventilating the face with belt air, I would 
suggest to you that one of the problems that we have here that 
has taken place since 1969 is this issue of the intent of 
Congress being written into the law, and somehow we find 
ourselves here today suggesting that we need to do something 
about ventilating the face with belt air, and if you read the 
law the Congress passed in 1969, you would be hard-pressed not 
to come to the conclusion that it forbids that. That somehow, 
down through the years, we have come to this place we find 
ourselves in today. That is, we're arguing over whether or not 
it's a good practice or not, Congress knew in 1969 that that 
was not a good practice.
    So, as we come today, we would also not be able to 
communicate with miners who might find themselves on the wrong 
side of one of these explosions, and it's true, there's been a 
lot of discussion, and a lot of debate, about what type of 
communications we should have, and the development of that 
technology, and I applaud everyone's efforts at NIOSH, and MSHA 
with respect to that.

                           PREPARED STATEMENT

    But you know, we could--and this was discussed during the 
debate on the MINER Act, and when we brought the families in 
here, come up with a extra line, hard-line, going into mines at 
very little cost, while we argue over this technology. I'm very 
excited about being here today, I'm so pleased that we have not 
forgotten about this issue. It did take us awhile to get to the 
next piece of congressionally-mandated law of some 30 years--
and I said last year, I hope it's not another 30 years before 
we get to the next one. But thank all of you, for this 
opportunity on behalf of the miners, and all those that have 
been left behind by these tragedies.
    [The statement follows:]
                  Prepared Statement of Cecil Roberts
          improving mine safety: one year after sago and alma
    Thank you for allowing me this opportunity to appear before your 
Committee. As President of the United Mine Workers of America 
(``UMWA''), I represent the union that, for 117 years, has been an 
unwavering advocate for miners' health and safety.
    This entire Committee has played a significant role in advancing 
miners' health and safety. I would like to express my appreciation to 
the leadership of this Committee for your efforts to protect the health 
and safety of all miners. Your continued oversight is critical to 
ensuring miners will go home safely at the end of their shift.
    One year ago I testified about miners' health and safety shortly 
after the Sago and Alma disasters; even after those two dramatic 
tragedies occurred, 32 more coal miners were killed in 2006.
    Following the Sago and Alma disasters and after five more miners 
were killed on May 20, 2006 at the Darby Mine in Kentucky, Congress 
moved to enact the MINER Act. That law includes several important 
provisions aimed at helping miners after a mine emergency develops. It 
is most appropriate for you to consider whether the improvements 
Congress intended to accomplish through the MINER Act are being 
realized. The Union supports MSHA's efforts to require substantially 
more oxygen for every miner. The emergency mine evacuation rule also 
contains a number of important improvements. Having said that, my 
testimony will focus attention on areas that MSHA needs to dedicate 
additional resources to fully implement the MINER Act.
    Some of the inadequacies in implementing the MINER Act may be 
linked to insufficient resources. However, others can be tracked to 
decisions made by the agency. In 2001, then Assistant Secretary for 
Mine Health and Safety, David Lauriski told members of the National 
Mining Association that MSHA would, ``collaborate more with mine 
operators on regulatory initiatives'' and become ``less confrontational 
with mine operators, in an effort to provide companies with better 
compliance assistance.'' At a meeting with mine operators in Hindman, 
Kentucky, he bragged about his diminutive regulatory agenda. He noted, 
``if you've seen it you noticed its quite a bit shorter than some past 
agendas.'' These policy statements were accompanied by a withdrawal of 
many proposed regulations by MSHA and a noticeable shift to compliance 
assistance. These compliance assistance programs divert precious 
resources away from enforcement. Perhaps most tragically, in many 
cases, MSHA has ignored the mandate of Congress by adopting regulations 
and policies that place miners at greater risk.
                   mine inspectors /mine inspections
    The agency is experiencing great difficulty in fulfilling the 
mandatory inspections required under the Mine Act. The Union is 
convinced that the hiring and training of more MSHA inspectors must be 
a top and continuing priority. The agency must have a full complement 
of properly trained personnel if it is to perform its primary job of 
enforcing the Mine Act. The ranks of the inspectors have been 
diminished over the years and we can expect further reductions as more 
of MSHA's long-time inspectors leave the profession as they reach 
retirement age. These needs can only be filled by hiring qualified 
individuals from all segments of the industry, including rank and file 
miners. These new inspectors must also be outfitted with state of the 
art equipment for personal protection and to perform their inspection 
duties. Sufficient monies must be allocated to ensure this equipment is 
readily available to these inspectors.
    As the number of inspectors have decreased, MSHA's field office 
specialists, including ventilation specialists and its electrical and 
roof control support staff, have been forced to carry out routine mine 
inspections. These specialists must be returned to their areas of 
expertise. The only way to accomplish this is to hire an adequate 
number of inspectors which will permit the specialists to focus on the 
job they are trained to do. In addition, the agency must move 
immediately to train a sufficient number of inspectors to perform these 
technical tasks in the future.
    I would like to thank Senator Byrd and the other members of the 
Committee who worked to secure $25.6 million to hire an additional 170 
mine inspectors and your continuing efforts to secure future funding. 
Congress must ensure that funding levels at the Mine Academy in 
Beckley, WV remain sufficient to meet future training needs for mine 
inspectors. This facility is used to train mine inspectors and also 
offers comprehensive training for miners and other health and safety 
experts.
                                 seals
    In 1969 and again in 1977 Congress mandated that ``explosion proof 
seals or bulkheads'' be used to isolate abandoned or worked out areas 
of the mine from active workings. However, in the years since, MSHA has 
promulgated regulations regarding seals that are much less protective 
than what Congress mandated. The current regulation simply requires 
that seals withstand static pressure of 20 pounds per square inch (psi) 
in order to be approved for installation in the mine. The standard was 
further eroded when MSHA approved the use of Omega Block type seals, 
such as those that were used at Sago. These Omega Block seals 
catastrophically failed as a result of the explosion at Sago and 
contributed to the deaths of all 12 miners.
    The UMWA urges MSHA to promulgate a regulation that would require 
the construction of seals that meet the mandates of Congress and the 
recommendations in NIOSH's draft report on mine seals.
                              regulations
    The UMWA believes that MSHA should adopt an aggressive regulatory 
agenda to address important issues in addition to those contained in 
the MINER Act, including:
    1. Improved Atmospheric Monitoring Systems
    2. Develop a Nationwide Emergency Communication System
    3. Revise MSHA's Approval and Certification Process for Equipment 
Approval
    4. Occupational Exposure to Coal Mine Dust (lowering exposure 
limits)
    5. Collection of Civil Penalties (mandatory mine closures for non-
payment)
    6. Air Quality Chemical Substances and Respiratory Protection 
Standards (update personal exposure limits)
    7. Surface Haulage (truck, haul road, train and loadout safety)
    8. Respirable Crystalline Silica Standard (reducing quartz 
standard)
    9. Requirements for Approval of Flame Resistant Conveyor Belts
    10. Confined Spaces (tight quartered work areas)
    11. Training and Retraining of Miners (revision of Part 48)
    12. Surge and Storage Piles (dozer/feeder safety surface)
    13. Escapeways and Refuges
    14. Accident Investigation Hearing Procedures (make them public)
    15. Verification of Surface Coal Mine Dust Control Plans
    16. Continuous Monitoring of Respirable Coal Mine Dust in 
Underground Coal Mines
    17. Modify Conferencing Process (Appeals of Citations)
    18. Underground Coal Mining, Self-Contained Self-Rescuer Service 
Life Approval and Training.
                       recording fatal accidents
    Just last week MSHA issued new guidelines for determining what 
constitutes a mine related fatality. The ``Fatal Injury Guideline 
Matrix'' narrows the scope of what the agency will define as a fatal 
accident chargeable to the mine operator. This will allow the agency to 
report numbers that are artificially low and possibly skew the actual 
health and safety record of the mine and the industry. In addition, 
fatals not listed as mine-related will not get the same scrutiny as a 
chargeable accident. Without the formal investigation process, lessons 
learned will not be available to prevent similar events in the future.
    The Union also disagrees with the Committee established by the 
agency to review deaths where chargeability is in question. The 
Committee is made up of upper-level MSHA employees and not open to 
other agencies, organizations or the public. This type of structure 
does not lend itself to a fair, unbiased review of the situation.
                    implementation of the miner act
    In the MINER Act, Congress mandated timelines for its 
implementation. In some cases, MSHA has failed to meet these deadlines. 
The Union urges Congress to allocate adequate funding to MSHA so it can 
fully implement this Act within the timeframes set by Congress.
    The Emergency Mine Evacuation Rule, which is separate from the 
MINER Act but ties into the self-contained self-rescuers (SCSRs) 
requirements, was finalized and made effective December 8, 2006. 
However, miners working underground today do not have all the 
protections that Rule addresses. MSHA deems the operator to be in 
compliance with the Rule if it has placed an order for additional 
SCSRs. Although the Rule requires increased availability and storage of 
SCSRs, there is a backlog of orders for these life-sustaining units. 
While the Union is extremely frustrated that more than a year after the 
Sago and Alma disasters, many miners only have 1 additional hour of 
oxygen, in light of this backlog, the Union supports MSHA's approach to 
make the additional oxygen units equally available to all miners. In 
reality, it will still take a number of years before miners receive the 
protections mandated by Congress. Miners cannot wait for another mine 
disaster to occur to drive new technology, therefore, the Union 
strongly urges the development and approval of the next generation 
SCSR.
    The Rule also requires ``expectations'' training on SCSRs. This 
would allow miners to experience the actual effects of donning a unit 
and attempting an escape. The practice units would allow miners to 
experience the breathing restriction and heating that SCSRs create, 
without risking their safety. While MSHA claims these practice units 
are not available for purchase, they are in fact available. The reason 
these devices are not being used by miners today is not availability, 
it is cost. Many mine operators simply do not want to spend the money 
to buy them. This is unacceptable and while we commend MSHA for 
promulgating a rule that is intended to be ``technology-driven,'' it 
must now enforce that rule.
    Moreover, the finality of this emergency response and evacuation 
rule is somewhat uncertain as the National Mining Association (NMA) 
filed a court challenge. The Union is not certain which aspects of the 
rule NMA is contesting, but it is certain that such legal maneuvers 
delays the protections Congress mandated only last year.
    Congress understood the importance of requiring that mine operators 
have comprehensive emergency response plans at all their operations. 
The MINER Act permitted operators a 60 day period to prepare these 
plans and submit them to the agency for review and approval. However, 
many of the mine emergency response plans that operators submitted were 
grossly inadequate, and not worthy of approval. We are now over 6 
months beyond the deadline established by Congress. While we commend 
MSHA for not approving these faulty plans, we do believe it must be 
more aggressive and apply more pressure on the operators to get these 
plans completed. Unless MSHA takes decisive action and resolves all the 
remaining issues, miners will not get the mine emergency response 
improvements that Congress intended.
    Further, the mine emergency response plans are to be reviewed and 
re-approved by MSHA every 6 months. We are already 6 months beyond the 
original plan due date. If those first plans are not yet approved and 
fully implemented, how can we expect MSHA to handle these semi-annual 
reviews? Perhaps MSHA needs more manpower to handle this task, but 
whatever the answer, until every operation has an approved plan in 
place, miners are not getting the protections Congress intended.
    Very little has changed in the last year concerning the ability to 
communicate with and locate trapped miners. While we have learned more 
about this technology and understand that much is available, very few 
operators have taken advantage of it. Communication systems and 
tracking devices are areas that MSHA must pursue more aggressively. 
Current communication and tracking technology, including one-way text 
messaging and two-way wireless systems, some of which are available 
now, must be immediately installed in all mines. Any system that can 
increase the ability for miners to escape a mine emergency, even if it 
is limited in scope, must be utilized. The Federal Government, through 
NIOSH and MSHA, must fund and direct continued studies and research to 
develop the next generation of tracking and communication devices. As 
this newer technology becomes available, mine operators must be 
required to upgrade existing systems at all its operations.
    We are also troubled by MSHA's failure to undertake action to 
facilitate the creation and training of additional mine rescue teams. 
Congress in the MINER Act clearly outlined its intent regarding the 
need for additional mine rescue teams. In addition, the language 
clearly defines how this is to be applied at both large and small 
mines. While Congress allowed MSHA 18 months in which to prepare, 
finalize, and give effect to rules that increase and enhance mine 
rescue team requirements, so far MSHA has not addressed this need. The 
need is real, and it is immediate. In the not-too-distant future MSHA 
will need additional funding to certify that mine rescue teams are 
qualified, as contemplated by the MINER Act.
    Over the past 20 years MSHA and some operators have weakened the 
intent of the current regulations regarding mine rescue protections. 
The existing mine rescue team structure is spread too thin. It takes a 
lot of time and much practice for any mine rescue team to function 
well. The UMWA has training facilities and is willing to provide mine 
rescue training and first responder training if we receive the 
necessary funding. Miners cannot afford to wait any longer for the 
training of new teams to begin.
                     collection of civil penalties
    In the MINER Act, Congress charged MSHA with revising and enhancing 
its penalty structure. MSHA proposed a revised schedule, but it is not 
yet final, so it is difficult for us to comment about whether it will 
induce any better compliance by operators.
    However, even without a new fine structure, the agency needs to do 
a better job of tracking and collecting the fines it imposes, and it 
should escalate the pressure when an operator refuses to pay a final 
penalty. Last year MSHA blamed computer problems on its inability to 
track fines. We understand that it still faces some technological 
challenges. If that is the case, then MSHA needs to fix the problem. 
When fines go unpaid it not only gives an unfair competitive advantage 
to the delinquent operator, but that operator's disregard for the mine 
health and safety laws and regulations imposes excessive risk on its 
employees.
    To the extent that MSHA takes the position that it cannot close an 
operation for having substantial unpaid fines, we submit that Congress 
should grant the agency such authority. MSHA's top personnel claim that 
if it had that authority the agency would exercise it to close 
operators who refuse to pay their fines. We would welcome that.
                              msha hotline
    The Union has complained for some time that the current hotline 
system miners use to report hazardous conditions is ineffective. 
Recently, a member of the UMWA called the 800 number listed on MSHA's 
website to report a problem at the mine where he worked and was 
frustrated by problems he encountered. The individual who answered the 
call, a contract employee, did not have any knowledge of mining, making 
it extremely difficult for the miner to convey the message. Further, 
the individual at the call center was not remotely familiar with MSHA's 
District structure and was therefore uncertain which office should 
receive the complaint.
    The Union has stressed on many occasions that the MSHA hotline 
should be staffed 24 hours a day, 7 days a week by MSHA personnel with 
an understanding
    of the mining industry and the agency. The current practice of 
contracting this work out to call centers lessens miners' health and 
safety.
                                belt-air
    In keeping with the mandates of Congress in the 1969 Coal Act, and 
the 1977 Mine Act, which strictly prohibits the use of belt-air to 
ventilate working places, the Union has historically been opposed to 
the use of belt-air to ventilate the working places. The 2006 Alma 
disaster is a reminder that there is no safe way to ventilate working 
sections using belt-air. This mine fire was intensified by air from the 
belt entry, and the contaminated air was dumped onto miners working 
inby. In addition, conveyor belts used in the mining industry must be 
made of non-flammable material.
    In the MINER Act, Congress directed that there be created a 
Technical Study Panel to provide independent scientific and engineering 
review and recommendations with respect to belt air and belt materials; 
the Study Panel is then to issue a report to the Secretaries of Labor 
and Health and Human Services, as well as the Senate Committee on 
Health, Education, Labor, and Pensions, and the House Committee on 
Education and Labor. While this Technical Study Panel has been 
constituted and had its first meetings last month, we harbor 
reservations about its administration. Congress was silent as to its 
administration, but MSHA staff is providing the support personnel. If 
its first meetings are any indication, MSHA seems more invested in 
defending the belt air decisions it has already made, than simply 
servicing the Study Panel. Congress assigned this Study Panel to offer 
an ``independent'' review and recommendations, and we hope it can 
overcome MSHA's bias in favor of belt air.
   funding for additional programs and health and safety protections
    The Union would urge Congress to adequately fund other agencies and 
programs that advance the Health and Safety of the nation's miners. 
These include:
  --Pittsburgh Research Center
  --Lake Lynn Facility
  --Appalachian Laboratory for Occupational Health and Safety in 
        Morgantown, WV
  --Approval and Certification Center
  --Personal Dust Monitors (PDM)
  --Colorado School of Mines
                               conclusion
    One year ago many of you were present when I testified before the 
Senate Committee on Health, Education, Labor and Pensions to discuss 
and review the performance of MSHA and the overall state of mine health 
and safety. That testimony followed the first two disasters of 2006 at 
the Sago and Alma Mines. At that time, I described many of the 
shortcomings in miners' health and safety.
    I am sorry to report that MSHA's efforts over the past year would 
do little to change matters today if a mine were to experience an 
explosion like the one at Sago, or a mine fire like the one at Alma; 
indeed the underground miners would likely fair no better than those 
who perished over one year ago. Thanks to the MINER Act, I can presume 
that any incident would be reported within the initial 15 minutes. 
However, there is no reason to expect that a sufficient number of mine 
rescue teams would respond quickly. This is because the last year has 
seen virtually no progress in either expanding the number or improving 
the proximity of qualified mine rescue teams.
    MSHA still allows mine operators to ventilate working sections with 
belt-air, and non-flammable belts are still not required. Today there 
are no requirements that operators provide systems that would enable 
miners to communicate with the surface or vice versa. There is nothing 
in place that requires an operator to be able to locate trapped miners, 
and very few could do so. Safety chambers are not required, nor are 
safe havens prescribed. Most operators do not have a complete approved 
emergency response plan as required by the MINER Act. Many miners 
caught in a disaster would likely have one additional hour of oxygen as 
opposed to early 2006, but please remember that it took more than 40 
hours for the first mine rescue teams to reach the miners at Sago.
    We are most appreciative that Congress has worked towards 
increasing MSHA's budget so more mine inspectors can inspect mines to 
ensure compliance with the Mine Act. We implore MSHA to demonstrate a 
similar commitment to enforcing the Mine Act and to improving miners' 
health and safety so that our industry will never again experience 
another mine disaster like Sago or Alma. Technology is progressing on a 
daily basis and the UMWA urges MSHA to require mine operators to employ 
improvements as they become available.

    Senator Harkin. Thank you very much, Mr. Roberts.
    I would turn to Mr. Bruce Watzman, Vice President for 
Safety, Health and Human Resources for the National Mining 
Association. Mr. Watzman was appointed recently to the Mine 
Safety and Health Research Advisory Committee. His 
undergraduate degree is in economics and psychology, and a 
post-graduate degree in environmental health management.
    Mr. Watzman.
STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, NATIONAL 
            MINING ASSOCIATION
    Mr. Watzman. Thank you, Mr. Chairman. We appreciate the 
opportunity to discuss with you what we've done since the 
tragic events last year, and since passage of the MINER Act, 
which NMA supported.
    In January 2006, we established the Mine Safety Technology 
and Training Commission, an independent body to study new 
technologies, procedures and training techniques that can 
further enhance safety in the Nation's underground coal mines.
    The commission drew upon the knowledge and experience of 
mine safety and health professionals from academia, government, 
industry, and the United Mine Workers to develop an active 
blueprint to advance miner safety. The commission's peer review 
report was published in December 2006, and delivered to the 
National Mine Association, and that would ask that it be made a 
part of the hearing record.
    The commission unanimously adopted 75 recommendations that 
are both near-term, and far-reaching in scope. Many endorse 
actions by Congress in its passage of the MINER Act. The 
central theme of the Commission's recommendations is a call for 
a new paradigm, that focuses on a systematic and comprehensive 
risk assessment-based approach towards prevention. This will 
require us to look at mining differently, and to train miners 
differently. We're currently implementing a number of the 
commission's near-term recommendations, and developing a 
blueprint for action on the more far-reaching items.
    For example, we're discussing with NIOSH the development of 
risk-based management tools and templates to assist the 
industry in its implementation of the central recommendation. 
Our goal is to help every company identify and address 
significant hazards, before they create situations that 
threaten life or property.
    Turning to the MINER Act, which NMA supported--the 
requirements recognized the need for a forward-looking risk 
assessment, that good safety practice continually evolve based 
upon experience and technologic development, and that every 
underground coal mine presents a unique environment. 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.''
    This serves as a useful reminder to the industry and 
regulators, that there is often more than one way to achieve 
our singular purpose of improved workplace safety. Even before 
enactment of the MINER Act, we were engaged with NIOSH and MSHA 
in an emergency communication partnership, to evaluate current 
practices and technologies, and design performance criteria and 
protocols for testing. Some of these technologies hold great 
promise, however, they are some years away from readiness for 
mine application.
    Communications and safety experts agree that underground 
coal mines present unique challenges to radio and wire signal 
propagation. Another important challenge we face, is the often-
conflicting regulatory requirements imposed by MSHA and State 
governments. We do not have the luxury of time to develop one 
system that complies with MSHA requirements, another for one 
State, and possibly a third or fourth from additional States.
    Let me stress this again: Inconsistent Federal and State 
requirements and conflicting implementation deadlines threaten 
the progress we are making. It's imperative that we embrace 
policies that encourage the broadest possible application of 
technologies across all underground coal regions.
    While we grapple with these technologic challenges, we 
continue to make substantial investments in safety, equipment, 
and practices to meet the mandates of the MINER Act. We've done 
a preliminary survey of our members, and it shows that $65 
million is being spent to purchase 90,000 additional SCSRs, $19 
million in communication and tracking, $15 million for 
additional measures required under new State requirements, and 
$60 million for safety equipment, training and manpower beyond 
the mandates of the act. This is only the beginning.
    We've also undertaken several voluntary initiatives. We 
initiated a review of existing mine rescue procedures that 
resulted in the development of a generic mine rescue handbook, 
to help those forming teams, and developing their own 
protocols. We've distributed this throughout the industry, 
posted it on our website, and made it available to the public, 
and I would ask, also, that this be made a part of the record.
    [The information follows:]
    [Clerk's Note.--This material can be found at http://
www.nma.org/pdf/01110507_safety_handbook.pdf]
    Mr. Watzman. We're also developing a protocol for 
communications with the media during a mine crisis, which will 
provide a framework for effective communications in cooperation 
with MSHA.
    Finally, at no time in our recent history has the expertise 
residing at the mining program in NIOSH been more vital to 
improved mine safety. The elimination of the Bureau of Mines in 
1995 was a blow to the longstanding and renowned government 
leadership in this area. The permanent establishment through 
the MINER Act of the Office of Mine Safety and Health at NIOSH 
will begin to restore this important government function. 
However, without adequate resources, this area will suffer, and 
the MINER Act expectations for acceleration, and the pace of 
research and progress will be frustrated.
    While NIOSH continues to develop and implement important 
advances in mine safety and health, progress is slowed due to 
the erosion of funds, and the situation is becoming critical.

                           PREPARED STATEMENT

    We thank the subcommittee and Senator Byrd for the $10 
million that was provided in the supplemental last year, but 
that is just the start. We urge you to, again, strengthen this 
vital government function, to ensure that there is sufficient 
funding, and we look forward to working with you to make that 
reality. Thank you.
    [The statement follows:]
                  Prepared Statement of Bruce Watzman
    Good afternoon. My name is Bruce Watzman, and I am the vice 
president of safety, health and human resources for the National Mining 
Association (NMA).
    NMA and its member companies appreciate the opportunity to discuss 
with the subcommittee what we have done since the tragic events last 
year in West Virginia and Kentucky and since passage of the Mine 
Improvement and New Emergency Response (MINER) Act of 2006, which NMA 
supported.
    Last year's events brought all members of the mining community 
together behind a single purpose--to ensure that every miner returns 
home safely to their loved ones each and every day. It is this single 
purpose that has guided the actions of NMA in establishing the Mine 
Safety Technology and Training Commission, supporting passage of the 
MINER Act, promoting industry awareness of the law's new requirements, 
and striving to find and deploy the new technologies which will improve 
the protection of underground coal miners.
    With that common purpose in mind, I will discuss with you today the 
findings of the Mine Safety Technology and Training Commission, and 
what the industry is doing to implement its recommendations; steps the 
industry has taken thus far to meet the expectations of the MINER Act; 
and our views on enhancing mine safety research capabilities.
             mine safety technology and training commission
    In January 2006, NMA established the Mine Safety Technology and 
Training Commission, an independent body, to immediately undertake a 
study of new technologies, procedures and training techniques that can 
further enhance safety in the nation's underground coal mines. The 
commission drew upon the knowledge and experience of mine safety and 
health professionals from academia, government, industry and the United 
Mine Workers of America to develop a pro-active blueprint for achieving 
zero fatalities and zero serious injuries in U.S. underground coal 
mines. The product of the commission's deliberations is a peer-reviewed 
report released in December 2006. Mr. Chairman I would ask that the 
commission's complete report be made a part of this hearing record.
    The commission unanimously adopted 75 recommendations that are both 
near-term and far-reaching in scope. Many of the recommendations 
endorse actions taken by Congress in passing the MINER Act. The 
commission's recommendations include 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 is a call for a new paradigm for 
ensuring mine safety--one that focuses on a systematic and 
comprehensive risk assessment-based approach toward prevention that 
serves as the foundation from which all safety efforts will flow. This 
new paradigm will require us to look at mining differently and to train 
miners differently.
    The industry is currently implementing a number of the commission's 
near-term recommendations and is developing a blueprint for action on 
the more far-reaching items. For example, we are discussing with NIOSH 
the development of risk-based management tools and templates to assist 
the industry in its implementation of the central recommendation of the 
commission. The use of risk-analysis risk-management, while not a 
common practice throughout the industry, is familiar to many of the 
larger companies. Our goal is to create operational tools that will 
help every company identify and address significant hazards before they 
create situations that threaten life or property.
    We share the commission's view that adoption ``. . . of a 
comprehensive, risk assessment-based approach toward prevention should 
significantly increase the odds of survival for miners in emergency 
situations, [and] also provide a guideline for pursuing zero accidents 
from all sources.'' We are mindful, however, that this is a significant 
undertaking. As Professor Jim Joy, Minerals Industry Health and Safety 
Center, University of Queensland, has noted in describing the 
Australian mining industry's experience with implementation of a risk-
based approach, [It] ``is immense and fraught with stumbling blocks.'' 
Nonetheless, we are committed to the task.
                               miner act
    NMA worked toward the passage of the MINER Act. We continue to 
believe that its core requirements are sound. The requirements, as 
implemented through Emergency Response Plans, recognize the need for a 
forward-looking risk assessment, that good safety practices continually 
evolve based upon experience and technological development, and that 
every underground coal mine presents a unique environment and what may 
work in one may not be effective or desirable in another. As the Act's 
legislative history succinctly states:

    The goals of optimizing safety and survivability must be 
unchanging, but the manner for doing so must be practical and 
sensible.----S. Rep. No. 109-365 p. 3.

    We believe that this passage not only aptly captures the intent of 
the law, but also serves as a useful reminder to the industry and 
regulators that there is often more than one way to achieve our 
singular purpose to improve workplace safety.
    In the months following the enactment of the MINER Act, we 
endeavored to promote industry awareness and understanding of the law's 
new requirements. Toward that end, NMA, in conjunction with its state 
association affiliates, and in cooperation with federal and state mine 
safety agencies, conducted six MINER Act Workshops throughout the 
country. These workshops were designed to assist the industry in 
preparing their Emergency Response Plans, obtain information on the 
latest technological developments for communications and tracking 
systems, and assess mine rescue protocols.
    Even before the enactment of the MINER Act, NMA and its members 
engaged NIOSH and MSHA in a mine emergency communications partnership. 
The purpose of the partnership is to evaluate current practices and 
technologies, design performance criteria and protocols for testing, 
and identify mines where the technologies can be tested. Our members 
have volunteered their mines for testing tracking and communications 
systems. Some of these technologies hold great promise; however, they 
are, in our estimation, some years away from readiness for mine 
application. Communications and safety experts agree that underground 
coal mines present unique challenges to radio and wire signal 
propagation. What works in one mine may not perform in another. As we 
seek to find and deploy the best systems, we will continue in the 
meantime to improve conventional systems to provide more reliable means 
for tracking and communicating with miners underground.
    Another challenge we face is the often conflicting regulatory 
requirements imposed by MSHA and state governments. We do not have the 
luxury of time to develop one system that complies with MSHA 
requirements, another for one state and possibly a third or fourth for 
additional states. Unfortunately, the underground mining marketplace is 
not attractive to many technology providers. In the interest of miner 
safety it is imperative that we embrace policies that encourage the 
broadest possible application of technology across all underground coal 
regions.
    While we grapple with the technological challenges in these areas, 
the industry continues to move forward in making substantial 
investments in safety equipment and practices to meet the expectations 
of the MINER Act. The preliminary data from a survey of NMA members (to 
date the survey responses represent about 65 percent of all underground 
coal production) indicates actual and planned investments in the 
following areas for 2006-2007:
  --$65 million to purchase 90,000 additional self-contained self-
        rescuers (SCSRs).
  --$19 million in communication and tracking systems.
  --$15 million for additional measures required under new state 
        requirements.
  --$60 million for safety equipment, training, and manpower beyond the 
        mandates of the MINER Act.
    These numbers simply reflect one quantifiable measurement of the 
industry's commitment to the MINER Act. And it is only the beginning, 
just as the MINER Act itself is not the end, but rather one means for 
reaching our desired goal to protect our nation's miners.
    Beyond the actions taken by the industry to comply with federal and 
state rules we have undertaken several voluntary initiatives that we 
would like to bring to your attention.
    NMA, with the Mine Safety and Health Administration (MSHA) and the 
National Institute of Occupational Safety and Health (NIOSH), initiated 
a review of existing mine rescue procedures to determine if existing 
practices and protocols remain operative given the structural changes 
that have occurred across the industry. This effort resulted in the 
development of a generic mine rescue handbook that can serve as a guide 
for those forming mine rescue teams and developing mine rescue 
protocols, as well as a review tool for those with established 
procedures in place. This document has been distributed throughout the 
mining industry to be used as a pre-event planning template that will 
expedite the delivery of mine rescue services in an efficient manner, 
should they be required. It is also readily available to the industry 
and public on NMA's website at www.nma.org. With the chairman's 
permission, I would ask that a copy of the handbook be included in the 
record.
    Working with the industry's communication specialists, NMA is 
developing a protocol for communications with the media during a mining 
crisis. The protocol recognizes the important role of the media in 
keeping communities informed about the facts surrounding a mining 
accident or fatality and the obligation of mine operators to contribute 
to that understanding. The protocol will provide a framework for 
effective communications and cooperation with MSHA, as envisioned by 
the MINER Act.
                          mine safety research
    At no time in our recent history has the expertise residing at the 
mining program in NIOSH been more vital to improving mine safety. The 
elimination of the Bureau of Mines in 1995 was a blow to the 
longstanding and renowned government leadership in mine safety and 
health research. The permanent establishment through the MINER Act of 
the Office of Mine Safety and Health in NIOSH will begin to restore 
this important function to its former prominence. However, without 
adequate resources, the Office of Mine Safety and Health's leadership 
in this area will suffer and the MINER Act's expectation for the 
acceleration in the pace of research and progress will be frustrated.
    While NIOSH continues to develop and implement important 
advancements in mine safety and health, progress has slowed due to the 
erosion of research funds, and the situation is becoming critical. 
Because NIOSH's budget for mine safety and health has remained 
relatively flat in recent years, its purchasing power continues to 
decline with the increasing cost of labor, materials and other research 
costs.
    This subcommittee's efforts and Senator Byrd's leadership last year 
provided NIOSH with $10 million through the Emergency Supplemental 
Appropriation of 2006 to facilitate the development of technologies for 
rapid introduction into underground coal mines. The decisions on which 
technologies should be supported with that funding were made in 
collaboration with labor and industry under the auspices of the many 
NIOSH partnerships that have been formed.
    We urge you to again strengthen this vital government function and 
ensure funding for NIOSH is commensurate with the role Congress 
intended under the MINER Act to, ``enhance the development of new miner 
safety technology and technological applications and to expedite the 
commercial availability and implementation of such technology in mining 
environments.''
    Today's mine safety and health professionals face important 
challenges. More complicated geological conditions, advancements in 
technology and a new generation of miners require the introduction of 
new and innovative techniques. Our ability to further advance coal mine 
safety will require that government and industry continue to harness 
their collective resources to identify new technologies and practices 
that eliminate accidents, illnesses and injuries in the workplace. We 
look forward to working with you to ensure that the resources required 
to achieve this goal are available so that every miner can return home 
safely each and every day.
    Thank you, and I would be happy to answer any questions.

    Senator Harkin. Thank you, Mr. Watzman.
    Now, we'll turn to Mr. Davitt McAteer, vice president of 
sponsored programs at Wheeling Jesuit University. He is a 
former Assistant Secretary of Labor of Mine Safety and Health, 
worked as a consultant on Mine Safety and Health to former West 
Virginia Governor Wise.
    Mr. McAteer received his B.A. from Wheeling Jesuit 
University, and his J.D. from West Virginia University. Mr. 
McAteer.
STATEMENT OF J. DAVITT McATEER, ESQUIRE, VICE PRESIDENT 
            OF SPONSORED PROGRAMS, WHEELING JESUIT 
            UNIVERSITY, SHEPHARDSTOWN, WEST VIRGINIA
    Mr. McAteer. Senator Harkin, Senator Byrd, Senator Specter, 
and Senator Shelby, and members of the committee, good 
afternoon. Thank you for the invitation to come here today to 
speak before you.
    At the request of Governor Manchin, in 2006, we published 
two reports on the two disasters which occurred during that 
year, in West Virginia. Those reports, the Sago report, and the 
Aracoma/Alma report--which I asked to be made part of the 
record--identified two problems in mine safety, as relate to 
those disasters.
    [The information follows:]
    [Clerk's Note.--This report, as well as additional related 
information, is available at: www.wvgov.org and www.wju.edu]
    Mr. McAteer. First was the impact that lightening had--the 
probable impact that lightning had at the Sago Mine, and the 
second was the failure of the seals to hold, and for the 
failure of the seals to protect the miners.
    In the second case, the Aracoma/Alma case--that was an 
operator's disregard for the safety of the miners, and the 
failure of MSHA and the State agency to properly enforce the 
law.
    In April last year, we also hosted an International 
Symposium on Mine Safety and Health at Wheeling Jesuit 
University, where some 400 attendees addressed the question of, 
how might we improve safety and health technology, to better 
protect the miner? The second such symposium is scheduled for 
this year, in April.
    Further, we held a public hearing for the Sago families, in 
May 2006, at West Virginia Wesleyan College in West Buckhannon, 
West Virginia. For the first time in our history, families were 
provided an opportunity to ask questions and to give testimony, 
and to try to reach results as, to find out the results and to 
find out what caused the accidents.
    But, what I would like to address today are six critical 
factors that we identified in both of these studies, and that 
have been the subject of your conversation here today. My 
associate, Paul Miles, will be here with the charts on the 
right, and we've tried to identify those subjects, and say 
exactly where are they--where are we with regard to any, or 
each, of these items.
    With regard to communications, there has been improvement, 
there has been some steps in the positive and right direction. 
Unfortunately, that improvement has not achieved the goal that 
we want to see happen. There is technology out there--the 
Harden leaky feeder system that was mentioned earlier today, is 
a technology that exists, and can be put in the mines. That 
technology is being identified by operators, and some operators 
are taking steps to put it in. Sadly, that's not the case for 
all operators.
    Second, with regard to the most promising of the 
communications systems, is the medium-frequency radio. That 
communications system is on the horizon, and that offers the 
most promise of any of the communications that we've seen 
today.
    Sadly, and unfortunately, most miners are still using the 
old system, the phone system, the pager/phone system, and the 
trolley system to provide communications outside the mine. As 
Mr. Roberts points out, as President Roberts points out, if we 
had an accident tomorrow, we would still be stuck in the same 
situation we were in before.
    Now, let me look at the question of seals. What we need to 
do in the area of seals is we, we have not--NIOSH has put out a 
recommendation, and MSHA has suggested in its study, that 
recommendation. But, at the present time, we have 14,000 seals 
that are still in place in the mines of this country, that have 
not been improved, we have not taken the steps necessary to 
take that process.
    There has been a moratorium put on seals, using alternative 
blocks, in the State of West Virginia, and a moratorium on the 
Federal level, but the Federal level has been allowed to go 
forward, if the seal meets a 50 psi standard. Our suggestion is 
that, we need to give industry guidance on how to increase 
their seal protection today, and we need to address the 
prohibit--prohibit the use of pressure piling mining 
techniques, as was the case in Sago, and at the Darby disaster, 
where the mining was done in the bottom, allowing pressure 
piling to occur when the explosion occurs, in getting more psi 
to come back through the mine.
    With regard to SCSRs--the difficulty has been pointed out 
here by President Roberts, and by other speakers, is that we 
don't have additional SCSRs in the mines that we need them. It 
is our recommendation that a committee immediately convene a 
rapid, strategic task force, consisting of government, labor, 
manufacturing, and industry to chart out that strategic 
implementation plan to protect the most miners, in the shortest 
period of time.
    Mr. Stickler recommended, suggested that he'd sent out a 
letter of guidance to that effect, but I believe that it's 
necessary for us to form a task force to involve all of the 
parties so that we know where it is that we need to put these, 
those devices currently.
    So as one--as was also indicated, one manufacturer has 
7,000 devices sitting on their shelves, but they're not the 
device of choice, two manufacturers have backlogs of 7 to 10 
months. Our suggestion is that we look at what's available, and 
to see what steps can be taken currently.
    With regard to chambers--while the MINER Act does not 
directly require chambers, chambers are available. There are, 
in this country, 50 chambers in mines--mainly hard rock mines, 
but three chambers in coal mines. There is nothing to prevent 
the use of chambers in this mine, and in the coal mines in this 
country today, they are permitted in the 1969 Act, and those 
chambers ought to be adopted where they are commercially 
available, ought to be allowed--put in the mines, and there's 
not a necessity that the mine operators reach, wait for the 
regulation to come through.
    With regard to lightening--we believe lightening is a real 
problem. We've identified a number of accidents, in this 
country and abroad, and we suggest that a National Academy of 
Science panel be initiated, and that we look at the question 
of, how do we prevent from--in the most likely cases, and the 
most difficult cases--how do we provide protection?

                           PREPARED STATEMENT

    Last, with regard to belt air, we believe that we should 
revert to the period prior to 2000, only allow belt air after 
special consideration be given by the mine operator to come up 
with a plan that provides as safe as a rule prohibiting belt 
air, and it's only in those circumstances where the miners, 
their safety is improved by the use of belt air.
    Thank you very much.
    [The statement follows:]
                Prepared Statement of J. Davitt McAteer
    Good Afternoon Mr. Chairman, Senator Robert C. Byrd, Chairman 
Senator Tom Harkin, Senator Arlen Specter and members of the 
subcommittee, ladies and gentlemen. My name is Davitt McAteer. I am 
Vice President of Sponsored Programs at Wheeling Jesuit University and 
special advisor to West Virginia Governor Joe Manchin, III on mine 
safety matters. Thank you for this opportunity to appear today.
    In the past 14 months, three tragedies, Sago, Aracoma/Alma, and 
Kentucky Darby stunned the nation and brought the issue of miner's 
safety and health to millions on the front pages of the nation's 
newspapers and on the nightly news cast. In quick succession, first two 
then a third accident occurred, resulting in multiple deaths. The 
public was shocked that in the 21st Century, in the United States of 
America, we were seeing miners killed with such frequency. Especially 
after years of progress in reducing the numbers of men and women killed 
or injured in the mines.
    Sadly, but less noticed, deaths continued throughout the year, one 
and two at a time, miners throughout the Nation have fallen not in new 
or novel ways, but in old carbon copy-type accidents, in circumstances 
that have been seen hundreds, if not thousands, of times over the past 
one hundred plus years. In 2006, the number of fatalities in the United 
States mines amounted to 72, the highest number since 2001.
    Thus far in 2007, six miners have died working to bring coal and 
minerals out of the ground, this despite the fact that the Senate, 
along with the House of Representatives acted last year with commitment 
and dispatch to pass the Mine Improvement and New Emergency Response 
Act of 2006 (The MINER Act).
    The MINER Act, with the support of many of you, notably Senator 
Byrd, was an effort to address some of the most egregious short comings 
in the protection of miner's safety and health.
    The question that is presented to us today is--Are the Nation's 
miners safer today than they were on January 1, 2006? In the months 
since the Sago disaster, much has changed and much more is in progress; 
but unfortunately for the average miner underground today, not much has 
improved from the day-to-day safety and health standpoint. For some, 
there has been a heightened awareness of the risks as many companies 
have improved the frequency and quality of training on SCSRs, but there 
are still not enough SCSRs underground to effectively protect the 
miners or meet the requirements of the MINER Act.
    In the area of communications, there has not been a transformation 
away from the antiquated, decades old, hard line phone technology. 
Although, there is movement toward the development of both wireless and 
improved wired and wireless systems, miners still rely upon the phones 
which were in place before January 2, 2006. While numerous systems have 
been tested by MSHA and NIOSH underground, and MSHA currently has 
pending twenty-one applications of communication and tracking 
equipment, progress toward implementing new systems is moving at a slow 
pace. Although one encouraging fact is that two companies have recently 
filed for approval of systems with the state of West Virginia in 
anticipation of the July 31st deadline.
    In the matter of rescue chambers, few if any chambers have been 
installed following Sago, although I am aware of the efforts of MSHA, 
NIOSH and WVOMHS&T to identify and evaluate rescue chambers to comply 
with the upcoming West Virginia state requirements. In a recent report 
to NIOSH, more than fifty mines, including three coal mines were 
identified as having chambers installed and fifteen companies were 
identified as marketing chambers and related equipment.
    There are, in fact, a number of deadlines that are approaching, 
which will require compliance on a federal and state level. A report by 
the Wheeling Jesuit University's Mining and Industry Safety Technology 
and Training Innovation Center (``MISTTIC'') sets out the compliance 
dates for various requirements.
    Recently, on February 19, 2007, West Virginia Governor Joe Manchin 
III and I visited Consolidation Coal Company's McElroy mine with the 
UMWA safety director and were briefed by MSHA, NIOSH and the WVOMHS&T 
officials on the status of the communication technologies. As Governor 
Manchin stated afterwards, we are seeing some progress, but are not yet 
where we want and need to be.
    Progress toward improved communication systems has been aided by 
some companies who have actively engaged in research and have invested 
time and effort in testing new equipment. Sadly, others have not taken 
up the challenge and have indeed been suggesting that change is neither 
necessary nor timely.
    It is appropriate to commend the National Mining Association's Mine 
Safety Technology and Training Commission for their report published in 
December, 2006 which addressed the question of how the United States 
mining industry could improve mine safety, technology and training and 
establish the United States as the global leader. The panel, headed by 
Dr. R. Larry Grayson did an admirable job of setting out the need for 
change and developing a roadmap which would address the challenges in 
the area of safety and health equipment.
    The Commission concluded that immediately, mines should use 
hardened pager phones or leaky feeder systems, as an interim measure, 
to provide emergency communication after accidents.
    Further, they urged the implementation of hybrid communication 
systems that combine wireless communications devices and existing 
metallic infrastructure or leaky feeder backbone coupled with pipes, 
haulage track or wire lifelines. As the report stated, these systems 
are now available and would be a vast improvement over the current 
system.
    Further, the report urged MSHA and NIOSH to enhance their efforts 
to encourage the development of wireless communications in underground 
mines, including efforts to assist in developing commercial alternative 
communications and tracking systems.
    Since I appeared before this Committee last January 23, 2006, 
following the Sago and Aracoma Alma mine accidents much as transpired. 
In April, 2006, Wheeling Jesuit University hosted the first 
International Mining Health and Safety Symposium in Wheeling, West 
Virginia, sponsored by Senator Byrd, MSHA, NIOSH, the United Mine 
Workers of America, Wheeling Jesuit University and the Wheeling 
Convention and Visitors Bureau, and Wheeling Chamber of Commerce. This 
meeting brought together representatives from industry and labor, 
technology developers, legislators, and members of academia to focus on 
the future of the health and safety in the coal mining industry. The 
symposium also attracted a large number of mining experts from all over 
the world. Panels addressed questions of how to bring about 
improvements in mine safety and rescue, underground communications, and 
breathing devices. With 400 United States and international attendees, 
as well as 6,000 webcast viewers, the symposium offered an 
extraordinary opportunity to share information and focus on new 
technologies that exist in the United States and abroad.
    On April 26-27 of this year, Wheeling Jesuit will again host this 
event. Our focus will include a review of the progress made over the 
last year in such critical areas as underground mine communications, 
breathing devices, mine seals, mine refuge chambers and rescue worker 
training.
    Then on May 2, 2006, we convened a Public Hearing on the Sago Mine 
Disaster and included, as part of the hearing, panelists 
representatives of the twelve victims' families and the West Virginia 
Legislative Committees. For three days, witnesses from the Mine Safety 
& Health Administration, the West Virginia Office of Miners' Health 
Safety and Training, the International Coal Group and victim family 
members testified as to the cause and reasons for the disaster. The 
hearing was held at West Virginia Wesleyan College in Buckhannon, West 
Virginia. This was the first post-disaster hearing to involve the 
families in the process.
    On July 19, 2006, with the assistance of a remarkable staff, we 
issued the Sago Report and, on November 10, 2006, we issued the Aracoma 
Alma Report.\1\
---------------------------------------------------------------------------
    \1\ The Sago Mine Disaster Report and Aracoma/Alma #1 Mine Report 
can be found at:
    http://www.wju.edu/sago/SagoMineDisasterReport_July2006.pdf
    http://www.wju.edu/aracoma/AracomaAlmaMineReport_November2006.pdf
    http://www.wvgov.org/SagoMineDisasterJuly2006FINAL.pdf
    http://www.wvgov.org/McAteerAlma1106.pdf
---------------------------------------------------------------------------
    Those reports chronicle two separate and distinct problems in the 
mining industry in the United States. First, at Sago we found that the 
probable cause of the disaster was lightning. We also found that there 
were nine other instances of lightning or suspected lightning ignitions 
in other mines in the country over the past 13 years. One of our 
conclusions was that the mining community must deal with this issue; 
unfortunately, that has not come to pass.In the Aracoma Alma No. 1 Mine 
Fire Report, we concluded that the mine was being operated with a 
disregard for the safety of the miners. But equally troubling, we 
concluded that the MSHA inspectors and West Virginia inspectors utterly 
failed to detect this disregard for safety and failed to detect 
multiple violations of the law by Massey officials and personnel. The 
entire federal and state safety system completely collapsed and two men 
died.
    I have included for your review the Executive Summaries and 
Recommendations we made in both the Sago and Aracoma Alma Reports.
    Next, I would like to draw your attention to the five charts which 
we have prepared in an effort to describe the current status of each of 
the six critical areas:
    Seals, SCSRs, Rescue Chambers, Communications, Belt Air and 
Lightning. These charts set out the issues we are still facing in each 
area and make recommendations on what should be done.
    Both Senator Byrd and Senator Harkin have called for innovative 
approaches to make the breakthroughs which we need to protect our 
nations miners. This will take different forms with each of the 
problems areas, Rescue Chambers, Communications, SCSRs, Lightning, 
Seals and Belt Air.
    But, what we must be driven by is the need to act. We would all be 
filled with remorse if today an explosion again trapped miners and we 
had not put in place currently available equipment to communicate with 
them or to enhance their chances of rescue.
    We would also be derelict if we did not pursue and force new 
technology in areas such as wireless communications, in Seals and in 
Chambers. It is not a matter of deciding between existing technology 
currently available or waiting for improved technology which may become 
available at some point in the future. We must do both. We must 
immediately adopt technology improvements which exist today and develop 
new technology which can result in greatly enhanced protection. We must 
adopt such a two-pronged approach doing everything we can with what is 
available and forcing the technology to reach the next level--anything 
less would be irresponsible.
    Historically, the development of safety and health equipment has 
lagged behind production equipment innovations. In fact, the 
development, manufacture and introduction of safety equipment into the 
workplace has been separate from the development and implementation of 
production equipment, resulting in a two-track system.
    One result of this bifurcated system is that there is no continued 
renewal demand for improved health and safety equipment as there is 
with production equipment. Innovations in production speed, coal 
recovery or reduced expenses will drive the market for new production 
equipment. Machines which produce coal cheaper and faster will sell and 
replace slower less efficient machines. Health and safety equipment has 
no such economic motivation and, therefore, tends to remain stagnant, 
i.e., SCSRs are virtually the same models that were introduced in the 
1980s and mine phones have remained largely unchanged in the last three 
decades.
    One solution to this problem might be to incorporate safety and 
health requirements into production equipment specifications, which 
might serve as a way to renew the safety technology and cause 
innovation and advances in safety and health equipment.
    For example, SCSRs could be installed or built into equipment, 
including long walls and continuous mining machines, while phone lines 
could be built into the electrical cables which provide power for the 
long walls and continuous miners, shuttle cars, etc. Rarely are these 
cables out of commission and never for extended periods of time because 
they are critical in the production cycle. And when new production 
equipment is purchased, new safety features would be already 
incorporated. The introduction of seat belts and air bags for passenger 
cars could serve as a model for introducing safety and health equipment 
into the production equipment manufacturing cycle.
    Until such time as we incorporate safety and health equipment into 
the production process, it will remain the step-child, lagging behind 
and only added to the mining cycle.
    The men and women who mine our Nation's energy and minerals deserve 
much more. During this first decade of the 21st Century we have the 
opportunity to change the mining business both in this country and 
abroad. We must not miss this opportunity. Those who have died in the 
mines, and their families, deserve no less.
    I would be glad to attempt to answer any questions and to provide 
any additional information that may be helpful to you, thank you.

    Senator Harkin. Thank you very much, Mr. McAteer, that was 
a very lucid presentation.
    Now, Mr. Chris Hamilton, senior vice president of the West 
Virginia Coal Association, an organization he's been affiliated 
with for over 20 years. Mr. Hamilton has Mine Forman 
Certifications from West Virginia and Ohio, and received his 
undergraduate and graduate degrees from West Virginia 
University.
    Mr. Hamilton.
STATEMENT OF CHRIS R. HAMILTON, SENIOR VICE PRESIDENT, 
            WEST VIRGINIA COAL ASSOCIATION, CHARLESTON, 
            WEST VIRGINIA
    Mr. Hamilton. Thank you, Mr. Chairman. Good afternoon, 
members of the committee, Senator Byrd.
    If I may, just momentarily, echo the sentiments expressed 
by my friend Cecil Roberts--we appreciate all you do for our 
great State of West Virginia, for the coal industry, we 
appreciate your leadership, your longstanding public service, 
and most importantly, we appreciate your friendship.
    Senator Specter, Senator Shelby--thank you very much for 
the opportunity to participate in today's proceeding, and for 
your ongoing attention to the important topic of coal mine 
safety.
    I'm pleased to appear before you today to report on the 
progress we have made in my home State of West Virginia over 
the past 12 months, and to comment on the important work that 
remains. Initially, allow me to offer a couple of observations 
which serve to form the basis from which my testimony was 
constructed.
    First, as we've reported previously, West Virginia recorded 
the safest mining year in history during calendar year 2005, 
which literally ended just hours before the tragic Sago 
accident. The overall performance of this industry, our State's 
industry, which was brought into question as a result of 
several tragic accidents last year, was the culmination of many 
years whereby mine safety performance experienced gradual, but 
continual, improvement. Technological advancements in mine 
extractive techniques, combined with an extraordinarily skilled 
and experienced workforce were primarily responsible for this 
achievement.
    In fact, it was said at one of our many forums on mine 
safety held throughout this past year, that the industry was a 
victim of its own success, and consequently, became somewhat 
complacent, and as such, did not devote an equal amount of 
attention--particularly in the technology area--to post-
accident side of safety. This has now changed, which we will 
examine momentarily.
    Second, the Sago and Alma accidents will continue to serve 
as a reminder that our path forward and quest to become the 
safest mining industry in the world should never cease. I am 
pleased to report today that much work has been completed, and 
the basis for additional safeguards and worker protections is 
well developed.
    Third, as we progress throughout calendar year 2006 looking 
for ways to improve mine health and safety, and to prevent 
recurrences of the accidents which claimed human life, we 
witnessed an unprecedented level of cooperation from all 
involved parties and stakeholders from around the industry.
    Coal management workers, legislators, government leaders, 
academicians, researchers came together, and exhibited a 
tremendous desire to develop workable solutions to these 
complex and technical issues, and to achieve our shared goal of 
improving coal mine safety, so that every miner returns home 
safely, every day, to his family and to his home.
    These collective efforts culminated in two significant 
reforms of our State and Federal mine safety acts last year, we 
feel it's important to note that this same level of cooperation 
among the various stakeholders is continuing today as 
additional improvements are sought.
    Last, we pledged our support last year to work with you, 
with State and Federal governments to improve mine safety. Over 
the course of the past 12 months, the industry has kept that 
commitment, has dedicated endless resources, countless man 
hours to the many processes and forms underway designed to 
improve coal mine safety.
    We have opened up our mining operations, we've assisted the 
technical and research communities in the design, installation, 
and testing of mine communications and tracking systems, and 
other mine safety technologies.
    We reaffirm our pledge and commitment today, as we move to 
implement measures enacted last year, and to strive to develop 
a greater level of prevention, and improve mine safety. During 
this same hearing, held on January 23 last year, I mentioned 
that the State of West Virginia was on the verge of enacting 
landmark legislation to address many of the safety concerns 
identified last year in our accident investigations.
    S. 247 established requirements for the following safety 
program components, immediate accident notification systems, 
wireless communications systems, additional self-contained 
breathing apparatuses, mine emergency plans, individual 
tracking devices, lifelines, miner training, miner re-training 
programs.
    S. 247 paved the way for the Federal MINER Act, which 
contained many of the same provisions. On the administrative 
front, certain seal material has been banned from use in State 
mines, several administrative rules have been promulgated to 
implement the provisions of S. 247. The West Virginia Coal Mine 
Safety Task Force and the West Virginia Board of Coal Mine 
Health and Safety have been engaged to review the entire gamut 
of mine emergency operations post-accident procedures.
    Most of the requirements set forth on the State level, 
through S. 247, are currently being implemented consistent with 
State compliance schedules. Mine emergency shelters, or plans 
for such shelters, are due this April, plans for emergency 
communications are due in July.
    Greater numbers of SCSRs have been deployed over the past 
year, and provisions for increased breathable air units are in 
place. Moreover, every mine in our State has redesigned their 
mine rescue, and general mine preparedness plans, all miners 
have been trained and retrained in mine emergency simulations 
and procedures, and in the use of SCSRs.
    The State and industry's attention is now turned toward 
accident prevention, and the need to ensure that the tragic 
accidents experienced last year do not occur in the future. 
Toward that end, the West Virginia Office of Miner's Health 
Safety and Training, the West Virginia Board of Coal Mine 
Health and Safety, continue their joint review of the root 
causes of Sago, protections against lightening events and 
overall integrity of sealed areas, and underground mines are a 
prime focus.

                           PREPARED STATEMENT

    Mr. Chairman, that concludes my prepared text, and I'd be 
glad to respond to any questions you may have. Thank you.
    [The statement follows:]
                Prepared Statement of Chris R. Hamilton
    Mr. Chairman, members of the committee: Thank you for the 
invitation to address this committee and for placing this important 
topic ``Coal Mine Health & Safety'' on your agenda for review and 
discussion.
                              introduction
    My role and contribution to today's hearing will be defined by the 
following four key points: First, to express our heartfelt prayers for 
the families who suffered great personal loss at the Sago Mine. Our 
prayers continue for Randall McCloy's full recovery and for his wife 
and family. We now extend those prayers and our State's unique circle 
of support to the families of Don Bragg and Ellery Hatfield of the 
Aracoma Mine tragedy. The deceased miners will forever be with us as we 
implement the necessary steps to improve coal mine safety and prevent 
recurrences. We also thank the mine rescue team members, the State, 
Federal, and company officials who directed and guided their heroic and 
brave efforts at Sago, and whose performance in those dark and anxious 
hours will be analyzed for years to come. It is our hope that their 
performance will be constructively reviewed with an eye towards 
improving future rescue efforts; third, we are here as one of the 
Nation's largest trade associations to offer our pledge to work with 
you in whatever capacity you deem appropriate in the discharge of your 
important work and to direct our Association's collective attention 
towards the identification and implementation of appropriate remedial 
measures; and fourth, and subordinate to the preceding points, is the 
perceived need to preserve the integrity and future of the coal 
industry--to implement the necessary changes from the lessons learned 
from the horrific accident that brings us here today and to elevate the 
understanding and appreciation of our industry which means so much to 
West Virginia and to our Nation!
    My personal background: I have nearly 35 years of experience in the 
coal mining industry beginning in 1971 during the immediate 
implementation of the 1969 Federal Mine Health and Safety Act and over 
thirty years of experience in mine health and safety.
    I worked as an underground miner and for underground and surface 
mining companies. I have also worked for the Federal and State mine 
safety agencies as a mine safety professional and safety instructor--
certified to train and certify miners in all aspects of mining and mine 
safety including mine emergency preparedness and mine rescue 
operations.
    As Training Director for the West Virginia Department of Mines (for 
then Governor Jay Rockefeller), I was responsible for approving mine 
training facilities, mine training plans and individual mine training 
instructors.
    I possess underground Mine Foreman--Fire Boss certifications from 
WV and the State of Ohio where I worked for several years in the 
industry. I received my undergraduate and graduate degree from West 
Virginia University and have also completed many college level courses 
in mine safety, mining technology and mine industrial engineering.
    I presently serve under gubernatorial appointment on the West 
Virginia Coal Mine Health and Safety Board; the West Virginia Mine 
Safety and Technical Review Committee; The West Virginia Board of Miner 
Training Education & Certification; and, the West Virginia Diesel 
Equipment Commission.
    During my tenure on as a mine safety official, I have been involved 
in the review/investigation of serious mining accidents and practically 
every single mining death in West Virginia for the past twenty-five 
years.
    As a member of the West Virginia Board of Coal Mine Health & Safety 
(the only independent entity in West Virginia with a statutory charge 
to investigate and respond to mine accidents), I will be part of the 
State's investigation and regulatory response to the Sago and Aracoma 
accidents!
    West Virginia's coal industry is comprised of approximately 40,000 
individuals who work directly in, or around a coal mining facility and 
without exception, miners, managers, engineers and support staff along 
with our entire State have been deeply saddened by the ``Sago and 
Aracoma tragedies'' and will continue to mourn for years to follow.
    Our hearts and prayers are with the families and loved ones of the 
miners who perished in the Sago incident and we continue to pray for 
Randall McCloy's full recovery. We now extend those prayers and our 
State's unique circle of support to the families of Don Bragg and 
Ellery Hatfield of the Aracoma mine tragedy. I would observe that next 
to the immediate families of the deceased miners, nobody is saddened 
more than mine management officials over this tremendous loss. West 
Virginians share a special bond with their families, church and 
communities.
    They have an unparalleled inner strength and inner faith and no 
where is that bond more prominent than in the coal industry.
    For the record, The West Virginia Coal Association wholeheartedly 
embraces Governor Manchin's sentiments ``that no miner should ever be 
fatally injured in a West Virginia coal mine''. We also fully support 
the Governor's commitment to operate the safest mines in the world! We 
will commit the necessary resources over the months to come and will do 
everything humanly possible to achieve that shared goal!
    First and foremost, that is our commitment which we believe is 
realistic and achievable!
    We also maintain that the primary responsibility for achieving that 
goal rests firmly with those who own, operate and manage coal mining 
operations. A responsibility we not only acknowledge but aim to 
fulfill!
    These tragic events have caught the eye of practically all of 
America in the past three weeks and the media has presented an accurate 
portrayal of the courage and overall character of the men and woman who 
have selected mining as a profession. They have a passion for their 
work and they do it with great pride and an exceptional level of 
professionalism!
    Unfortunately, the events of January 2nd and those of last week 
have not accurately portrayed how technologically advanced mining has 
become and all of the progress and safety achievement that's been made 
over the past several decades. But one mining death is one too many and 
despite all the progress recorded in recent years, we now realize that 
much work remains! Particular focus is required in the post accident 
phase so that the effect of an accident can be minimized or mitigated!
    By its very nature, mining is unique (unlike any other business or 
industry) in that it is dependent on natural conditions and geology. 
Through their skills, training and hard work, miners attempt to control 
and manage the challenges of their environment--and they are good at 
it! It requires a supreme vigilance every minute of every shift.
    Undoubtedly coal mining is a dangerous occupation with unique 
hazards inherent to the workplace but I would maintain that mining is 
much safer today than what was realistically believed possible a few 
short years ago.
    New mining technologies such as longwall mining systems, remote-
controlled equipment design and mine wide atmospheric monitoring 
systems combined with the extraordinary skill & experience level of 
today's workforce has led to safer conditions and fewer accidents.
    As a relevant part of my testimony and record today, I incorporate 
a copy of the most recent ``Directory of Mines'' which is published 
annually by the West Virginia Office of Miners' Health, Safety & 
Training. It contains useful statistical information and charts the 
mine safety performance of the industry over the years.
    The ``Directory'' reflects a dramatic reduction in mining related 
deaths since passage of the 1969 Mine Safety Act when 162 fatal 
accidents were recorded to 3 for all of 2005. It also depicts a 
significant reduction in mine accidents and lost time injuries over 
this same period.
    The State's annual report also reveals that the State of West 
Virginia has one of the more comprehensive mine safety programs found 
anywhere in the country with a full complement of mine safety 
inspectors, safety officials and an extremely aggressive legislative 
and regulatory program.
    It is also noteworthy to point out that no provision exists under 
Federal law for States to acquire ``primacy'' over the administration 
of mine safety laws. Consequently, all West Virginia mines are examined 
by State and Federal inspectors throughout each and every quarter.
    The significance of the industry and the important role coal plays 
in our everyday lives, which ranges from our basic quality of life to 
national defense and national security and should also serve as a 
tribute to the men and families of Sago!
    Over the past several weeks we have heard local, regional, 
national, and international media sources all ask a similar question: 
Why do we continue to mine coal?
    Coal, and in particular, West Virginia coal, is crucial to our 
advanced society and extraordinarily quality of life. Coal continues to 
account for over fifty percent of the America's electricity. In West 
Virginia that figure is closer to 99 percent.
    Over the past several decades our State's coal industry has a 
remarkably record of safety achievement, reclamation accomplishments 
and environmental stewardship. We are coordinating proposed mine sites 
with local and State planning agencies to ensure meaningful and more 
productive development occurs.
    West Virginia is a shining example of where you can have a robust 
coal industry along with a thriving tourism industry--you can truly 
have both and I submit to you that nobody is doing it better!
    Today's industry represents a technologically advanced enterprise 
with a highly skilled and efficient workforce and has established a 
healthy presence in an international marketplace.
    West Virginia produces approximately 160 millions tons of coal 
annually. Of that total, over 105 million tons or 65 percent percent 
comes from underground mines and approximately 55 million tons of coal 
is produced from surface mines.
    West Virginia continues to lead the Nation in underground coal 
production and is second only to the State of Wyoming in overall coal 
production. West Virginia is the world's leader in Longwall mining and 
is the leading coal export State.
    All told, West Virginia coal is shipped to 23 foreign countries and 
accounts for approximately one half of the United States total export 
product leaving domestic boundaries contributing immensely to the 
United States balance of trade.
    We also have more processing plants than any other State, more 
transportation outlets and one of the more elaborate transportation 
systems and infrastructures you find anywhere in the world. It is 
comprised of rails, trucks and barges and we have the best quality and 
variety of coals found anywhere in the world.
    Due to its clean and high quality, West Virginia coal is shipped 
throughout the eastern half of the United States to 33 States to 
generate electricity for industrial and household energy and for coking 
and steel production. West Virginia has the highest quality of coal 
found anywhere in the world and we have plenty of it (Reports of our 
diminishing reserve base has been wrongly placed)! We have over 52 
billion tons of demonstrated mineable reserves or 350 years of 
production remaining at today's production levels.
    The coal industry remains vitally important to our State and its 
economy. Together, with the States electric power industry, it accounts 
for nearly 60 percent of the total State business tax collections. 
These tax dollars translate directly into important education, 
government and community services and provide a reliable revenue stream 
for many other county, local, and municipal programs.
    No other State business or industry affects so many people in so 
many different ways! It's overall impact is staggering in terms of 
employment, wages, taxes and overall economic activity.
    The State's industry is postured with an abundance of opportunity 
as the worlds thirst for low-cost, reliable energy grows on an 
incremental basis of nearly 2 percent annually. Thus, coal generally 
and West Virginia's coal particularly will continue to be a major 
player in the world wide energy mix on a going forward basis.
    A strong energy market and high demand has created an uplifting and 
positive energy around the State that most of us in the business have 
not witnessed since the 70s--And with that optimism comes the 
realization that we can do so much more if we are able to capitalize on 
todays opportunities. West Virginia Coal will be relied upon more than 
ever for industrial and household energy; domestic energy independence; 
national strategic defense; homeland security, and today's ever popular 
``coal-to-liquids'' and ``coal conversion technologies''.
    And lastly, just as all miners and mine managers have come together 
to grieve over the tragic events of the last 3 weeks, they all need to 
be part of the solution so we may effectively prevent a similar event 
in the future. They all have unique experiences and qualifications to 
contribute!
    Today, more than ever before miners, mine managers, engineers, 
research institutions and government officials need to become engaged 
to develop safer mining plans, better designed equipment and more 
effective ways to control our environment. Matters of safety, security 
and stability are shared responsibilities.
    And as the industry prepares to retrain its existing workforce 
along with the next generation of skilled miners, the ``Sago'' miners 
will be forever remembered and serve as a daily reminder of the supreme 
vigilance required in the workplace!
    Our membership has an abundance of safety, technical and 
operational expertise which has been called upon to respond to the 
challenges before us. We hereby extend those resources for your use and 
dedicate the same towards making the West Virginia Coal industry the 
safest in the world!
    I'll close by reciting the inscription on the ``The West Virginia 
Coal Miner'' statue located on the grounds of our State capital which 
captures the essence and summarizes best the importance of the coal 
miner and coal mining to West Virginia and to the Nation . . .

    ``In honor and in recognition of the men and woman who have devoted 
a career, some a lifetime, towards providing the State, Nation and 
world with low-cost, reliable household and industrial energy . . . Let 
it be said that `Coal' is the fuel that helped build the greatest 
country on earth, has protected and preserved our freedom and has 
enhanced our quality of life. God bless the West Virginia Coal Miner''

    Thank You.

    Senator Harkin. Thank you very much, Mr. Hamilton, and 
thank the entire panel.
    I will now turn for the first round of questions, to 
Senator Byrd.
    Senator Byrd. Thank you. Thank you, Mr. Chairman.
    The Sago and Alma tragedies highlighted the weaknesses in 
mine emergency preparedness. What can be done to further 
protect miners against roof falls and lightening, and other 
longstanding and recurring threats to miner safety?
    Mr. Roberts. Is that for anyone.
    Senator Byrd. We'll start with you.
    Mr. Roberts. Yes, sir.
    Senator Byrd. Yes, sir.
    Mr. Roberts. Thank you, Senator.
    One of the things I don't believe has been properly dwelled 
upon here today--for lack of a better way of saying it--the 
MINER Act recognized the need for mine rescue teams, that we 
had a terrible lack of trained people who could go into a mine 
on a very rapid notice, and hopefully rescue miners who might 
be trapped. The MINER Act calls for a period of time for MSHA 
to deal with that problem. I can say to this committee today, 
that we're in real trouble with respect to that. We see no 
progress for developing additional mine rescue teams, we are 
concerned that if we do not deal with this situation very soon, 
we will have the same type problems that we had at Sago, and I 
remind the committee, 5 hours before the mine rescue teams, the 
first one arrived at Sago--and I believe it was somewhere in 
the neighborhood of 10 hours before the first mine rescue team 
went underground--that is unacceptable, under anybody's 
evaluation. That's one thing that I would like to draw to the 
committee's attention.
    With respect to Senator Byrd's specific question about 
lightening and roof falls--there's a lot of technology that's 
being applied currently to protect miners from roof falls that 
exist out there. One of the debates that has been ongoing about 
what caused the explosion at Sago, whether it was a roof fall 
in the sealed area that ignited the methane gas, or did 
lightening somehow make its way into the mine.
    With respect to lightening itself, this would be the first 
time that any of us know of--and I don't want to misspeak here, 
but this was agreed-to, stated at the public hearing on Sago--
and I would commend the State of West Virginia for conducting 
that public hearing--that this would be the first time in the 
history of mining that lightening made its way into the coal 
mine, without a conduit of some kind, such as a gas well.
    I agree with the recommendation that this would be 
something that should be studied by the experts to determine 
how this is possible.
    With respect to roof falls in sealed areas, we--in our 
testimony--suggest we need to deal with seals, to make them 
more explosion-proof, to the extent we can, and we support 
NIOSH's preliminary recommendations to increase the psi, and 
they also have suggested the ability to more closely monitor 
the gases in those sealed areas, Senator.
    Senator Byrd. Mr. McAteer?
    Mr. McAteer. Thank you, Senator. You've asked several 
important questions.
    In the first instance, the question of communication, and 
how fast can we get the information from the mine to the 
process. I had the opportunity last week to visit the McElroy 
mine of Consolidation Coal Company in Northern West Virginia. 
They have a command center that ties in all of their large 
mines that they can have instantaneous communication, 24-hours 
a day, 7 days a week, with all of those mines, and those 
individuals are trained to be able to locate and identify State 
inspectors, Federal inspectors, company people immediately. 
That's not being done at other places, and that's a technology 
that exists, and one that's in place.
    With regard to roof falls, inside sealed areas, we think 
that's a very important concern that we have. There are two 
ways to do protections, and one is to put a seal in there that 
increases the psi, increases a likelihood that that explosion 
will be kept inside the sealed area. Those seals need to be 
increased, the psi level needs to be increased. The German 
model, which is the model that we've looked at, takes the seal 
level psi at 72. We suggest a psi level of 100, as a beginning 
process.
    The second part of this goes back to Senator Harkin's 
earlier question--how do we get innovation in? Because what we 
have in those sealed areas, is methane gas. We have, in fact, 
energy. We need to be able to capture that, and remove it, and 
use it in a safe way.
    Those three suggestions, I think, along with the National 
Academy of Science to look at the lightening, may help us get 
to where we want to be, in terms of those protections.
    Senator Byrd. Mr. Watzman?
    Mr. Watzman. Thank you, Senator.
    With regard to roof falls, and roof control, the industry, 
I think, has made significant progress. Fortunately, we don't 
have the number of fatalities that we experienced historically, 
resulting from roof falls. Unfortunately, we continue to have 
some. But, this improvement has come about due to the 
introduction of new technologies that have allowed for better 
roof control, for the requirement that operators file with 
MSHA, and MSHA enforce roof-control plans. It is an area that 
we, as an industry, continue to look at, I can tell you that 
the manufacturers of roof control equipment continue to look at 
it, and we are--we continue to explore how we can better 
stabilize the roofs.
    Lightening is a difficult issue, and it's one that is not 
new. There have been previous studies related to lightening 
strikes at coal mines. Mr. McAteer recommends the appointment, 
or the recommendation of a National Academy of Sciences study. 
That may be the proper route, but that may not. Whether we need 
further study is a question that I have in my mind.
    You have expressed concern earlier about delays in getting 
things done, that adds another increment of delay to the 
process. There may be a better process that we could all come 
up with collectively, to get to the route of the problem, and 
ways that we can address it, short of a--the need for another 
study.
    Senator Byrd. Thank you, Mr. Hamilton?
    Mr. Hamilton. Yes, sir.
    First, allow me to say that I don't think we should leave 
here today with the understanding or perception that very 
little--if anything--has been done over the course of the last 
year. Thanks in large measure to your oversight and direct 
involvement in this important issue, I can't speak for the 
entire country, but I can tell you, in the State of West 
Virginia, we are leap years ahead--right now, today--then where 
we were a year ago at this time. I beg to differ with some of 
my panelists--and I don't want to be argumentative--but we are 
so much better off today than what we were a year ago at this 
time, or a year and a month or so, at this time.
    We have installed two, three, four times the number of 
breathing apparatuses in our mines in West Virginia than what 
we had a year ago. There are more than just a couple of mining 
operations that have experimented, installed with these 
enhanced communication systems. Communication systems that were 
in coal mines, prior to this time last year, have been 
reinforced, there's been redundancy added, there's been 
duplicative systems, there's been hardening of systems and 
other protections. Miners have been trained, re-trained, re-
trained, and re-trained, on the use of self-contained breathing 
apparatuses, on evacuation procedures, on escape mechanisms, on 
mine emergency plans. We have immediate notification--we passed 
legislation in West Virginia creating two new mine rescue--
State mine rescue teams--to enhance in the overall actions 
necessary in mine rescue activities, to supplement company 
teams. We anticipate another 30 to 35 company-sponsored mine 
rescue teams in West Virginia alone. Many of those teams are 
already on board, every existing team has also experienced 
training after training simulation.
    Every miner in the State of West Virginia has gone to self-
contained breathing apparatuses, have gone through extensive 
training, and how to inspect that apparatus to ensure its 
workability and performance in the event it is ever needed. We 
have lifelines throughout every single coal mine in the State 
of West Virginia, and multiple, multiple entries.
    Some of the advanced communication technologies, such as 
those that go through the earth are not quite perfected at this 
point. All of your mine safety experts, your entire research 
community, everybody would concur with that point.
    But, we are going forward with existing technologies, 
capable of providing improved, enhanced communications, 
particularly in the event of a mine emergency situation. So, we 
feel, we are--and we have also gone through practically every 
mine, every ventilation system, repeatedly looking at these 
seals, and potential explosive environments. So, there's been a 
tremendous amount of work that's been done, and that work's 
continuing as we go forward.
    Senator Byrd. Thank you.
    Mr. Hamilton. Thank you, Mr. Chairman.
    Senator Byrd. Thank you, thank you, Mr. Chairman.
    Senator Harkin. I'll hold my questions till later.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Roberts, you've heard Mr. Hamilton saying that there 
have been enormous improvements in the year, do you agree with 
that?
    Mr. Roberts. I think, in my initial comments I said I 
thought that Congress had done a tremendous service to the coal 
miners of this country with the passage of the MINER Act. When 
it was being considered by both Houses, the UMWA went on record 
supporting it.
    We are never satisfied. That's what we're here for. We are 
to be the voice of the coal miners. I suggested--and I stand by 
that--if we had a similar situation at the Sago Mine tomorrow 
morning, do we have more mine rescue teams that would get to 
that mine within, say, 2 hours? Would we have communications in 
that mine, available to talk to those miners if that same 
explosion occurred? The answer to that, from my perspective, is 
no. That does not mean I'm being critical. I think the State of 
West Virginia, the Governor, the Republicans and the Democrats 
on both sides of the aisle have worked very hard, and probably 
led the way to try to make improvements in miner safety.
    But, we have to be honest when we come here. If we had a 
belt catch on fire tomorrow morning in the Nation's coal mine--
a flammable belt, it's a question that you posed earlier to Mr. 
Stickler--could a belt catch on fire? The answer to that is, 
absolutely, because the belts that are in existence in the 
Nation's coal mines are flammable.
    If you want to know what happened at Alma, get the report. 
There was clearly negligence, there's no question, on the 
operator's part. But what happened? You had a belt fire. One of 
the situations we're here for today is, where are we after Sago 
and Alma? Because Alma occurred right after Sago, the belt 
caught on fire. Why did those miners die? Because the 
ventilation system was disrupted and--and for all intents and 
purposes--you were ventilating the working face--you weren't 
supposed to be an evac plan. But, because of the negligence on 
the operator's part, you had the smoke, and the poisonous gases 
go forward into the intake--that's why two miners died. Could 
that happen again tomorrow? The answer to that is, yes.
    Could communications be disrupted tomorrow? Yes. That's not 
to be critical, that is to state where we are this morning, or 
this afternoon.
    Senator Specter. Mr. Roberts, when Mr. Stickler testified 
on these flammable belts, he's waiting for more rules. Your 
testimony, which followed my questioning of Mr. Stickler, was 
that pre-existing statutes give Mr. Stickler's unit adequate 
authority to improve the quality of those flammable belts, 
correct?
    Mr. Roberts. His predecessor, his predecessor, eliminated a 
rule that had been pending for some time, to deal with 
flammable belts. So, clearly, MSHA had the authority to 
implement a rule requiring flammable belts to be removed from 
the mines, and non-flammable belts to be placed in the mines.
    One of the things that I would suggest here today, if I 
may--just because Congress said, ``You've got to meet these 
deadlines by 3 years or 18 months,'' I would expect that 
Congress would have no problem if MSHA met them sooner than 
that.
    Senator Specter. Mr. Hamilton, I would appreciate it if you 
would take a look at the report by the staff of the House 
Education and Labor Committee, and give us your comments on it, 
because it is significantly at variance with the picture that 
you have portrayed. Obviously what this subcommittee wants to 
do is find out what the facts are.
    Mr. Roberts, you comment that the State of West Virginia 
has done a good job, but how about Mr. Stickler's unit? Has Mr. 
Stickler's unit done what it should have, in the intervening 
time since the enactment of the law?
    Mr. Roberts. Let me try to be as fair as I can with respect 
to that.
    Mr. Stickler has reached out for the coal industry, and 
those working in the coal industry, since this debate about 
whether he should be appointed, it's no secret, the UMWA 
opposed his appointment, and we do today. But, he's there, and 
we're going to do the best that we can, as all of us have to 
do, to work with him.
    Our problem is that we believe that we need to move more 
rapidly to protect the Nation's coal miners than we currently 
are, and that would be my position with respect to MSHA, as we 
look at it today, and he heads that agency.
    Senator Specter. Mr. Chairman, I have just one more 
question. That is directed to Mr. McAteer.
    In your testimony, you outlined a great many things that 
could be done now. What response would you have to what Mr. 
Stickler has said about the law being insufficient, or rules 
being necessary for equipment being unavailable, or time delays 
being inevitable?
    Mr. McAteer. Thank you, Senator Specter. Let me first 
clarify the record. I did not--refer to Mr. Hamilton--we did 
not say, I have not suggested that we haven't made progress 
during the year. We have made significant progress, and many 
operators are moving forward, and doing things to improve the 
process.
    But with regard to your question of whether or not the 
statute provides sufficient authority for the agency to move 
forward--yes, it does, indeed. The statute provides sufficient 
authority with regard to belt air, the statute provides 
sufficient authority with regard to belts themselves, there was 
a belt rule that was being moved forward at the time of my 
Assistant Secretaryship, and unfortunately, we didn't it 
attached either. I will tell you, rules are very difficult to 
get through.
    Let me also add, as one who sat in Mr. Stickler's chair, 
this year has been a particularly difficult year for the agency 
to try to do all of the things that they want and need to do. 
In some instances they've made some progress, but in many 
instances they haven't made the kind of progress that they 
would like to see, and that we all would like to see in the 
mining community.
    I think, your question is, does the industry need to wait 
in every instance to incorporate some of the improvements that 
are found, for example, with regard to belts? No, they don't 
need to wait for the regulations to come forward. Can the 
industry, on its own, take steps forward? We believe that they 
can. In some instances, there are some in industry that do 
that. As I mentioned with regards to the communication system, 
that's a voluntary effort on the part of the Consolidation Coal 
Company. Unfortunately, we have not moved the ball forward as 
much as we would like. Unfortunately, as President Roberts 
points out, we are not as far as we would like to be. Yes, 
we've made progress, but we're not where we want to be.
    Senator Specter. Thank you.
    Senator Harkin. Thank you.
    Mr. Roberts, you stated that the mine rescue team structure 
is spread too thin, you offer a solution, you said the United 
Mine Workers of America has training facilities that can be 
used for mine rescue team training and first responder 
training.
    How could your training facilities help solve the problem 
of too few mine rescue teams?
    Mr. Roberts. The only way, Senator, that we can get 
additional teams is to train these people. If you look at our 
testimony, we mention what you just said, and we also suggest 
that MSHA needs to be able to approve those teams on a more 
rapid basis, whether or not they had the funding to do that, 
the personnel to do that--we don't know the answer to that. But 
that's the two answers to that. These people need to be 
trained--it takes a great commitment, by the way--on behalf of 
some individual who is a coal miner to start with--to decide 
that they want to take additional training, and place 
themselves in the situation where they go into the most 
dangerous conditions known to a human being, to go underground 
when a mine has exploded, and full of poisonous gases--to be 
willing to that for your friends, and your neighbors and your 
brothers in this industry. Those people should be commended for 
their courage that they've shown in all of these disasters, by 
the way.
    I go all the way back to 2001, in Alabama, I go to the Sago 
situation, I go to Alma, I go down into the Darby mine in 
Kentucky--these people risk their lives. But, it takes enormous 
amounts of training to be able to have the skills and the 
ability to do this--that is the first step. You have to have 
the people who want to do it, and then they have to be trained. 
We're suggesting we can do that, we're not particularly hung up 
on where these people get trained, but we're offering to do 
that, and they need to be trained, and we need these people as 
quickly as possible.
    Senator Harkin. Could we offer them additional benefits and 
things like that? I mean----
    Mr. Roberts. Where we get most of our mine rescue team 
members now, Mr. Chairman, just so the committee can understand 
this, is from two places. Mostly from coal companies, and I 
must say--we've mentioned Consolidation Coal Company today with 
the leaky feeder system, we've mentioned them today about the 
central communications system, we offer--we suggest in our 
comments that we need a national communication system, so in 
the event of a disaster, we have someplace to go to locate mine 
rescue team members, locate equipment.
    If you look at every disaster we've had over the years--I 
don't care where it's been--we're scrambling around, trying to 
find drills to go drill bore holes, we're scrambling around to 
find equipment--that is absolutely absurd, Mr. Chairman. Coal 
miners deserve better than that, and we can do better than 
that.
    Senator Harkin. Yes.
    Mr. Roberts. We need a national communications system in 
place.
    But, the Consolidation Coal Company has mine rescue teams 
at every one of their mines. They spend money to train their 
miners in this area, they have the best equipment available to 
anybody in this country. The thing that happens--and I want you 
to think about this, too, Mr. Chairman--when you have a Sago 
who doesn't do this, and didn't do this, they call who? They 
call Consolidation Coal Company, and say, ``Would you send your 
team down here?'' So, they send their experienced miners who--
by they way, mine coal every day for them--and their 
experienced mine rescue team, and their equipment, down to the 
Sago mine and risk those people's lives to try to help out 
there. We'll always do that in this industry, no matter if 
you're a foreman or a union person, or a non-union person--when 
a disaster strikes in these coal fields, everybody reacts to 
it.
    But, every company should do what Consol does, and that 
should be a requirement.
    Senator Harkin. Mr. Watzman, I noticed you wanted to say 
something about this.
    Mr. Watzman. Yes, Mr. Chairman, I just wanted to be clear, 
and that we not leave the implication that the tragic outcomes 
at Sago, and Alma, and Darby and other tragedies were the 
result of the failure of the mine rescue system.
    At the Alma Mine, there were 22 mine rescue teams on site 
available for the efforts there. One of the issues that mine 
rescue teams confront, and all of my panel members are aware of 
this, is that we want to ensure that the mine rescue teams are 
not sent underground until it is safe to send them underground. 
That causes much of the delay. At Sago, there was a delay in 
the teams getting there, but when it was safe for the teams to 
go underground, there were adequate numbers of mine rescue 
teams.
    That's not to say that the system is perfect, the MINER Act 
reflects that, the MINER Act deals with mine rescue, and we 
supported the MINER Act, and those provisions. But, there is 
not a disaster looming for the industry in terms of mine rescue 
capability.
    Senator Harkin. My nephew is a miner. My nephew, he's been 
mining now for about--pretty close to 30 years, but he's out 
west, it's not coal mines, it's trona, trona mines. He's a team 
leader of a rescue team. They go to National competitions, do 
they do that for coal, too?
    Mr. Roberts. Yes.
    Senator Harkin. Do they have National competitions, and 
that type of thing?
    Mr. Roberts. Yes.
    Senator Harkin. I've often been, you know, and his team 
is--I think came in second in the Nation or something like that 
in one of these competitions. I've always been admiring him for 
that. But, but he tells me about these rescue teams, and what 
the kind of training they go through. It is pretty extensive. 
They have to continually be re-certified--is that the right 
word, or something like that, maybe? Something like that?
    Mr. Roberts. Right.
    Senator Harkin. That's the same as coal, also? As trona 
mines?
    Well, I haven't checked with him lately, but I'd offer his 
services, I'll have to check with him on that.
    Senator Shelby.
    Senator Shelby. Thank you. Mr. Chairman, I was not here for 
the first panel, I wish I had been, but we have multiple 
committees to go to.
    Mr. Roberts, you referenced my State of Alabama, and the 
disaster that happened down there, I was down there with you 
and others. Just for the record, on the afternoon of September 
23, 2001, 32 miners were working to repair drilling machines 
and hoisting tunnel supports in the No. 5 mine of Jim Walter 
Resources in Brookwood, Tuscaloosa County, my home county, of 
Alabama.
    A piece of the mine ceiling dropped on a battery charger, 
which set off a spark, igniting a pocket of methane gas. The 
explosion injured several miners, and incapacitated one, who 
was unable to move. Heroically, several miners set aside their 
own concern for safety--as they do--and rushed to his aid. As 
they moved into the tunnel, a second, larger explosion blasted 
through the mine, and killed the incapacitated miner, and his 
12 rescuers. In total, 13 men died in my State, in my home 
county of Alabama that day. This was a severe blow--not only to 
the family, the friends, but everybody in the community.
    In November 2005, I corresponded with Secretary Chao, and 
expressed my concern that an Administrative Law Judge had 
reduced the original fine--Mr. Roberts is very familiar with 
this--from the amount of $435,000, to $3,000. Earlier this 
year, I was notified that an appeal had failed. This brings 
about several questions.
    First, how does a fine get reduced by such a staggering 
amount? Second, why did the appeal fail? Third, why would the 
Mine Safety and Health Administration, Department of Labor, not 
pursue a case where 13 miners tragically died?
    Mr. Roberts, do you have an opinion?
    Mr. Roberts. I have an opinion.
    Senator Shelby. I'd like to hear it.
    Mr. Roberts. It's been well expressed.
    Senator Shelby. Because we've talked about this.
    Mr. Roberts. Yes, we have. I think we met on a ball field.
    Senator Shelby. We did, at a memorial service, where there 
was a lot of grief, to say the least, would you say?
    Mr. Roberts. That's, that's putting it very mildly, 
Senator.
    I think it should be noted for the record that 12 of those 
miners who tried to save--Junior Adams, it's amazing these 
names that, you know, when you go through this, you can 
remember--Junior Adams was the miner that was injured in the 
initial, there was two explosions.
    Senator Shelby. That's right.
    Mr. Roberts. One was very minor, injuring three miners, 
one--one, Junior Adams, could not move--one miner caught on 
fire, and rolled himself down the entryway to put himself out.
    Senator Shelby. That's right.
    Mr. Roberts. The place was full of smoke and dust, and he 
went to Junior Adams, and Junior Adams took off his light, and 
gave it to this miner who lost his in that initial explosion, 
and his name was Mike Mackey--I remember his name, too--and he 
staggered down the entryway to the foreman, and the foreman was 
so dazed that he didn't know where he was, and those two 
stumbled their way down to the track, and they let people know 
that Junior Adams was up there in the dark, injured and 
couldn't walk. Then 12 miners, Alabamans, brave coal miners in 
Alabama said, ``We're going to go get him.'' They went to get 
him, and another large, just horrendous explosion occurred, and 
killed all 13 of them. Excuse me, and we had to go down and 
talk to the families about the fact--we had sealed that mine 
for about 2 or 3 weeks, if I remember, because it was about to 
blow completely off the map.
    Senator Shelby. Mr. Roberts, share with them how deep this 
mine is? Of course, the quality of the coal is superb, but----
    Mr. Roberts. You go down, you go straight down a shaft 
about 2,000 feet, if I'm not mistaken, in Alabama is the 
deepest coal mines in North America----
    Senator Shelby. Some of the finest coal, other than West 
Virginia, right?
    Mr. Roberts. Absolutely. Some of the best metallurgical 
coal in the world.
    Senator Shelby. It is, in the world.
    Mr. Roberts. Then you get on a--once you go down to 2,000 
feet, you talk about the difficulty in rescuing people, I want 
you to think about this. These mine rescue teams went down an 
elevator after mine exploded, twice, and tried to rescue 
people, 2,000 feet down the shaft, and then went miles and 
miles and miles underground after they got there trying to find 
these miners, but the air was so contaminated, that the CO was 
completely out of kilter, the methane was about to explode 
again, there was heat and fire everywhere, and they had to come 
out. They got one of the miners out, and he unfortunately, 
died.
    Senator Shelby. Weren't these rescuers that got blown up 
volunteers, too? Some of them?
    Mr. Roberts. The rescue team members who went down after 
the mine exploded were volunteers, and they came back out. They 
went down and rescued one miner, who died the next day, but all 
of these miners who went up there to try to get Junior Adams, 
were working in a different part of the mine, and could have 
gotten out. They could have walked out, they could have rode 
out and been saved, but they chose to go risk their lives to 
get Junior Adams, and the mine exploded.
    But, I want you to think about the story we just told, and 
MSHA decided--first of all, the initial fines were ridiculously 
low. Then on a conference, I believed is where they were 
reduced down to an absurd amount. Then they were appealed to a 
Federal--I believe, an Administrative Law Judge----
    Senator Shelby. That's right.
    Mr. Roberts [continuing]. Reduced those down, and this 
Administrative Law Judge said that these 13 miners' lives was 
worth something like $4,000, I believe?
    Senator Shelby. Horrible.
    Mr. Roberts. That, that's--and in the--in our testimony 
that's written here----
    Senator Shelby. Can we impeach that guy?
    Mr. Roberts. Well, he should be. We, in our testimony----
    Senator Shelby. It is shocking. It's shocking, Tom.
    Mr. Roberts. In our testimony, we suggest that the fines, 
they need to be assessed, and fines need--listen to this, fines 
need to be collected. That's a problem that we've had for some 
time, and we suggest in our testimony that MSHA--if they do not 
have the authority now, which they say they do not have--if 
these fines go unpaid, it's the same as never been issued, they 
ought to go down, and shut these mines down, and have the 
authority to close these mines for the failure to pay those 
fines.
    I think, Senator, you're making one of the arguments that 
we've been making for years, that this is an absurd situation 
that exists in this Nation.
    Senator Shelby. Well, as you well know, in my home county 
in Alabama, it's great coal, some of the finest metallurgical 
coal in the world, deep mines, a lot of methane, big risk, we 
should so everything we can to make it as safe as we can for 
our workers, should we not?
    Mr. Roberts. Absolutely.
    Senator Shelby. In case they're trapped, we should do 
everything we can in a response team.
    Elaborate if you would, just a minute, I know the hour's 
late, on some type of an emergency respond team. You have them, 
but some kind of national--we have SWAT teams, you know, we 
have everything--the FBI has a SWAT team for real emergency, 
dealing with crime and big things. But these coal miners' lives 
are very important, to all of us.
    Mr. Roberts. I would invite the committee to, I'm sure 
most--many Members of Congress had, this is the UMWA's report 
on the Jim Walter No. 5 disaster. Many of the things that we 
talked about when this report was issued, we talked about again 
at Sago. We talked about again at Alma.
    But, let me just suggest this--there is no place in the 
United States where there's a central communications systems 
where, in the event of a mine disaster, somebody knows where 
everything is. Somebody knows where everybody is, and somebody 
can find everything that you need. Every one of these 
situations we start--and let me commend the people who have to 
go through these. I went through more of the one in Alabama 
than I cared to go through, but let me tell you--you'll never 
forget it if you ever go through one. You'll never forget it, 
until the day you die, that's when you'll forget about it.
    But let me tell you, we need a central location--you could 
take what Consolidation Coal Company does for their--and 
they're the largest underground producer in the country--you 
could take what they do to protect their mines, with respect to 
mine rescue team training, mine rescue team members, and a 
communications system where they can communicate with anyone 
and everyone that they might need in the event of an emergency, 
and we ought to have that available somewhere, in the United 
States of America, where in the event of a next disaster, 
somebody says, ``Call Morgantown, call Alabama,'' wherever we 
put this----
    Senator Shelby. Call Tuscaloosa, my hometown.
    Mr. Roberts. They'll know how to get everything and 
anything----
    Senator Shelby. That makes sense.
    Mr. Roberts. Within the matter of an hour for these 
disasters. That does not exist.
    Senator Shelby. Mr. Roberts----
    Mr. Roberts. It does not exist, and that would be 
relatively easy to develop.
    Senator Shelby. But we do it for other things--we have the 
first responders program, the chairman understands that--both 
the chairmen, Chairman Byrd and Chairman Harkin--very well, 
because we fund it, in case of terrorist attack, chemicals. But 
these ought to have some type of a coordinated, well-trained 
National response, I agree with you.
    Mr. Roberts. Amen, Senator.
    Senator Shelby. Thank you.
    Mr. Chairman, thank you for you indulgence.
    Senator Harkin. Thank you very much, Senator Shelby. Good 
line of questions.
    Senator Byrd. Thank you, Mr. Chairman.
    Senator Harkin. Well, thank you all very much. Thank this 
panel, and the previous panel. Again, I think you can sense 
that we're all very proud of our tradition of mining in this 
country. These tragedies that occur tear at all of us, and we 
just have to re-double our efforts to make sure that the MINER 
Act is fully enforced and implemented as soon as possible.

                     ADDITIONAL COMMITTEE QUESTIONS

    There will be some additional questions which will be 
submitted for your response in the record.
    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
               Questions Submitted by Senator Tom Harkin
                               technology
    Question. You mentioned that MSHA has had contact with more than 
125 parties about communications and tracking systems, but only 
observed testing and demonstration of 16 systems and approved 3. Why 
haven't you been able to test and certify more? Is this a resource 
issue? What specific steps are you taking to expedite the approval 
process for these technologies?
    Answer. While MSHA has had contact with 132 parties regarding 
communication and tracking systems, between January 2006 and March 30, 
2007, MSHA has received 39 applications for approval of communications 
and tracking systems. Of these 39 applications, 24 applications are 
currently being evaluated and 15 have already been approved. Three of 
these are new approvals for communication and tracking systems and 12 
are modifications to previously approved pager phones and leaky feeder 
systems. These are completed via the Revised Approval Modification 
Program (RAMP).
    The 16 tests referenced above were observed as non-approval related 
product demonstrations. To help advance the technology MSHA has been 
providing non-typical assistance to communication and tracking 
technology manufacturers to help them develop their systems. These in-
mine tests are designed to determine if the technology can work 
effectively in the unique mine environment and are not part of the MSHA 
approval process. The normal MSHA approval process determines whether 
or not the technology is safe and does not present a fire or explosion 
hazard.
    MSHA has assigned top priority to all communication and tracking 
approval applications.
    Question. The National Mining Association report released in 
December 2006 recommends ``that mines utilized hardened mine pager 
phones or leaky feeder systems, as an interim measure, to meet the need 
for post-incident emergency voice communications.'' How will MSHA 
support this recommendation so that communications systems are improved 
immediately?
    Answer. Various pager phones and leaky feeder systems are currently 
available and MSHA-approved for mine operators to use at their mines. 
Among the 24 communication and tracking applications currently under 
investigation at MSHA's Approval and Certification Center (A&CC), 
several are for modifications to existing approved pager phones and 
leaky feeder systems. These modifications are typically changes 
necessary to accommodate ``hardening'' of the devices so that the 
devices will be better protected to withstand explosive forces or fire. 
As mentioned above, in addition to the three new approvals that the 
MSHA A&CC issued in the previous year for communication and tracking 
systems, the A&CC also issued 12 modifications to previously approved 
pager phones and leaky feeder systems to accommodate the ``hardening'' 
changes.
    Question. At the hearing last year, I saw an Australian technology 
known as a Personal Emergency Device (PED). It was a relatively cost-
effective text message type communication device. I know that was only 
a 1-way communication system and we want 2-way, but where are we on 
that? I seem to recall that several U.S. mine operators had already 
bought the system. Has the number increased? Why not?
    Answer. MSHA has made a significant effort to assess the 
performance of the PED. MSHA visited five installations in the United 
States as well as four stallations in Australia that are using the 
device. The purpose of these visits was to evaluate the performance and 
capabilities of the PED one-way paging system. We published our 
findings about the advantages and disadvantages of these devices on the 
MSHA website. The primary concern with the performance of the PED was 
that, in order for it to function properly after an accident, the 
required loop antenna needs to be installed on the surface. However, 
unlike in Australia, most mine operators in the United States do not 
own the surface rights to their underground mine properties, which 
precludes the installation of this essential component. To use the 
system such operators must install the antenna underground, rendering 
it susceptible to an explosion or fire. Also, topography is a greater 
challenge in the United States than it is in Australia. Other important 
concerns with the PED included major interference problems, no 
confirmation from the miner that text messages are received, and 
significant ``dead zones.''
    The Mine Site Technologies PED system is a one-way paging system 
with little technical promise to be made an effective 2-way 
communication device. Some U.S. coal mine operators are not willing to 
purchase the one-way PED system when the MINER Act requires a two-way 
system. While there are companies working on two-way, through-the-earth 
voice communication, test results have shown that this technology does 
not exist at this time.
                                training
    Question. The Mine Safety Technology and Training Commission report 
recommended that MSHA better validate mine rescue team training by 
observing training in progress in addition to checking training logs. 
It also recommended that MSHA should improve the quality of training 
during approval of mine operator training plans; and address a 
significant training materials gap. Does MSHA have sufficient resources 
this year and in the fiscal year 2008 President's budget to address the 
training-related recommendations in this report? Specifically, how do 
you plan to address these recommendations?
    Answer. MSHA has sufficient funding in 2007 and under the 
President's 2008 Budget to address the training recommendations and 
implement the training requirements in the MINER Act.
    The MINER Act requirements dealing with mine rescue teams are 
currently in the rulemaking process. The MINER Act provides for 
different training requirements for large and small mines. The MINER 
Act adds a new training requirement that mine rescue team members must 
participate in two local mine rescue contests and participate in 
training at the covered mines. These additional training requirements 
complement the existing training in 30 CFR Part 49.8 (training for mine 
rescue teams) and will enhance the current system of mine rescue 
capability and result in additional protection for the nation's miners.
    Existing Part 49.8 requires 4 hours of refresher mine rescue 
training each month, or eight hours every 2 months; training sessions 
underground every 6 months; and team members to wear breathing 
apparatus for a minimum of 2 hours every 2 months.
    The new requirements for training of coal mine rescue teams include 
training sessions underground, familiarity with operations of covered 
mines, and knowledge of operation and ventilation at each covered mine. 
MSHA inspection personnel currently monitor selected mine rescue 
training, participate in Mine Emergency Readiness Drills (MERD) and 
participate in Mine Rescue Contests as contest judges. MSHA expects to 
continue this monitoring and participation.
    Pursuant to the requirements of the MINER Act, MSHA is currently 
developing regulations covering the above issues related to mine rescue 
teams, and expects to publish a proposed rule later this year.
                        emergency response plans
    Question. The MINER Act requires each mine's emergency response 
plan to be continuously reviewed, updated and re-certified by MSHA 
every 6 months. To date, how many have been reviewed and fully 
approved, and how many are pending review?
    Answer. To date, there have been 481 emergency response plans 
(ERPs) submitted for approval from active, producing underground coal 
mines. Of these ERPs submitted for approval, approximately 90 percent 
(431) have been partially approved. MSHA's guidance on ``breathable 
air'' was recently issued as PIB 07-03 on February 8, 2007. Mine 
operators had 30 days after the Program Information Bulletin (PIB) was 
issued to submit their revised ERPs for approval by MSHA. Many of these 
submissions were found to be deficient and new submissions, under 
MSHA's plan approval process will need to be reviewed. These are due to 
be sent to the MSHA District Managers on March 28, 2007.
    Question. What have been the major deficiencies identified in the 
plans that needed to be altered?
    Answer. The policy on post-accident breathable air (PIB P07-03) 
required mine operator submission of the portion of the ERP addressing 
breathable air no later than March 12, 2007. MSHA found many of the 
submissions deficient and under MSHA's plan approval process new 
submissions were due to the MSHA district managers on March 28. 
Consequently, no ERPs have been fully approved by MSHA at this time.
    Partially approved plans are those plans basically without 
breathable air. As explained above, MSHA expects to receive submissions 
of those portions by March 28. For those plans not yet partially 
approved and in the review process, two major areas of deficiencies 
have been identified by several of the districts. Questions have been 
raised by MSHA regarding post accident tracking and the areas or zones 
selected for location purposes. Some mine operators have submitted 
plans with very large zones or areas to work within that would make 
locating miners very difficult. Also, some mines have submitted plans 
with a voice recorder system to track the miners, but no provisions 
were included for monitoring the recorders during the shift worked. 
Consequently, in the event of an accident, several hours of recording 
might have to be reviewed in order determine the last known location of 
miners.
    The MINER Act requires each mine's ERP to be reviewed, updated and 
approved by MSHA every 6 months. Since the first ERP submission 
deadline of August 14, 2006, MSHA has issued additional guidance 
established by policy and regulations that require mine operators to 
revise and update their ERPs. These include the following:
  --MSHA Program Policy Letter (PPL) No. P06-V-10 Implementation of 
        Section 2 of the Mine Improvement and New Emergency Response 
        (MINER) Act of 2006, issued on October 24, 2006,
  --Emergency Mine Evacuation Final Rule, effective December 8, 2006,
  --MSHA PIB No. P07-03 Implementation of Section 2 of the MINER Act of 
        2006: Options for Providing Post-Accident Breathable Air to 
        Underground Coal Miners, issued on February 8, 2007.
    Question. What are the resources dedicated to this effort in fiscal 
year 2007 and proposed for fiscal year 2008 in dollars and FTEs?
    Answer. The Emergency Response Plans are reviewed by the district 
specialists and these district personnel will be dedicated to reviewing 
and approving these plans as needed. There is not a specific line-item 
in the budget for this activity.
    Question. How does MSHA plan to stay current with meaningful 
reviews of operator plans and enforcement of effective implementation 
of the plans?
    Answer. MSHA keeps current by tracking progress on the 
implementation of the MINER Act and the Mine Emergency Evacuation Final 
Rule nationwide and at the district level. We track this progress 
through our review of the ERP which is required every 6 months by the 
MINER Act and through regular inspection activities at the mine sites.
    When MSHA conducts an inspection, MSHA evaluates plan compliance. 
In the event non-compliance is found, appropriate enforcement action is 
taken and corrective action is required. Also, if MSHA receives a 
complaint from a concerned miner, MSHA would investigate it.
                            mine inspectors
    Question. In a Government Accountability Office (GAO) report from 
2003, GAO stated that 44 percent of underground coal mine inspectors 
would be eligible for retirement within the next 5 years. What is the 
actual record of retirements by calendar year? Does MSHA have a 
specific plan for preparing to replace these lost assets? What is it? 
How will you ensure that the new inspectors have the skills and 
experience needed to replace veteran inspectors?
    Answer. The table below shows MSHA's record of retirements of its 
enforcement personnel over the last several years.

------------------------------------------------------------------------
                                                            Number of
                     Calendar year                         retirements
------------------------------------------------------------------------
2003..................................................                20
2004..................................................                33
2005..................................................                60
2006..................................................                56
2007 (through February)...............................                13
------------------------------------------------------------------------

    With the supplemental funding provided in fiscal year 2006, MSHA is 
in the process of hiring an additional 170 new coal enforcement 
personnel. The hiring is occurring over five quarters beginning in July 
2006 and ending on September 30, 2007. As of March 12, 2007, here have 
been 18 job fairs held with a total of 1,240 candidates being tested.
    Additional job fairs will be held and recruiting measures taken to 
maintain MSHA's enforcement corps.
    In addition, MSHA is working to backfill retiring enforcement 
personnel so that we net 170 new enforcement personnel by the end of 
September, 2007, at which time MSHA expects to have 757 coal 
enforcement personnel on board by the end of fiscal year 2007, the 
highest number since 1994.
    MSHA will ensure that all new inspectors have the skills and 
experience to inspect mines and make mining as safe as possible. 
Currently, trainees are not permitted to receive their authorized 
representative (AR) cards until training has been completed and the 
trainee has received satisfactory evaluations from the Academy 
Instructor and the trainee's supervisor. The MSHA Coal District Manager 
and the Administrator for Coal Mine Safety and Health must approve the 
readiness of new inspectors. In addition, the trainee must have 
completed on-the-job training and demonstrated, during supervisory-and 
inspectors-accompanied inspections, the ability to independently 
conduct periodic on-site health and safety inspections at coal mines.
    Question. MSHA has been transferring specialists back to inspectors 
in order to meet mandated inspections. Please identify the number of 
FTEs of such transfers that have taken place in fiscal year 06 and thus 
far in fiscal year 2007. What has the impact been on the availability 
of assistance with ventilation, roof, electrical, health and other 
operational issues? Does the fiscal year 2008 budget provided for the 
backfilling of these transferred specialists? If so, how many FTEs are 
supported by the fiscal year 2008 budget request?
    Answer. In fiscal year 2006 and fiscal year 2007, MSHA did not 
convert any specialists to inspectors. As such, no vacancies were 
created which require backfilling. It was not necessary because we 
replace inspectors with new inspector hires and keep specialists in 
their designated positions.
    Question. Under the educational policy and development line, your 
budget proposes to fund 20 entry level inspector groups during fiscal 
year 2008. Is this training plan sufficient to replace losses?
    Answer. MSHA's training plan will accommodate training requirements 
of personnel hired to replace losses as well as the 170 new personnel. 
Of the 20 entry level inspector groups planned, 15 are for coal and 
five are for metal/nonmetal. The typical size of each coal mine 
inspector (CMI) class is 15 students; therefore 15 classes will 
accommodate all trainees. Coal Mine Safety and Health and Educational 
Policy and Development, as in the past, will continue to work in 
concert to make the necessary adjustments to ensure that the scheduling 
of CMI training classes are a top priority.
                              inspections
    Question. The MINE Act requires that all underground mines be 
comprehensively inspected 4 times per year, and that surface mines be 
inspected twice a year. How is MSHA complying with this requirement? 
What does MSHA do beyond the required inspections to address the causes 
for mining accidents and fatalities?
    Answer. MSHA places a high priority on completion of Regular Health 
and Safety Inspections (E01 code) for all mines where inspections are 
required, surface and underground. The E01 Inspections are 
comprehensive and cover all aspects of safety and health for the mine. 
MSHA tracks the rates for completion of the regular inspections to 
monitor performance and adherence to the Mine Act requirements. Beyond 
the regular inspections, MSHA conducts special emphasis inspections 
covering various areas of concern for increased enforcement focus such 
as roof control, ventilation, electrical, surface haulage and health.
    MSHA has several traditional special emphasis initiatives that are 
conducted annually. These include the summer Preventive Roof Outreach 
Program (PROP) for heightened roof hazard awareness and the Winter 
Alert initiative to emphasize underground explosion and fire hazards 
and surface area winter-related hazards. When circumstances dictate, 
MSHA conducts special emphasis initiatives to address areas of concern 
such as mine belt conveyors, slopes and shafts, roof control areas 
including retreat mining, seal evaluations, respirable dust, and 
special general mine-wide inspection saturation events to determine 
overall compliance at a single mine or at several mines simultaneously. 
For example, a special emphasis on retreat mining at 14 mines in 
District 4 yielded 217 citations, 21 orders, and one safeguard. The 
targeted enforcement effort on respirable dust at 61 mines nationwide 
discovered 32 violations for not complying with provisions of dust 
control plans.
    MSHA also utilizes non-enforcement personnel from its Technical 
Support branch for highly technical investigations involving areas of 
special expertise, and MSHA uses personnel from its Education and Field 
Services branch to monitor miner training classes for course content 
and appropriateness, monitor training instructors, assist with training 
plan approval issues and to participate in the special emphasis 
initiatives.
    Question. The MINE Act provides for the issuance of withdrawal 
orders to mine operators who exhibit a ``pattern of violations'' of 
mandatory health and safety standards that could significantly and 
substantially contribute to the cause and effect of the health and 
safety hazards. What plans does MSHA have to improve enforcement at 
mines that have a pattern of violations?
    Answer. The MINE Act authorizes MSHA to issue a withdrawal order 
under certain conditions disclosed by an inspection conducted within 90 
days after a notice that the mine operator has a pattern of violations 
of mandatory standards that could have significantly and substantially 
contributed to mine hazards. MSHA has a regulation that provides for a 
letter warning mine operators that they have a potential pattern of 
violations before the statutory notice is issued. While MSHA has issued 
such letters, it has never proceeded to issue the statutory notice. 
MSHA has recently initiated the development of objective criteria to 
identify mines that may have a pattern of violations. Once these new 
criteria are in place, MSHA will issue pattern of violations notices 
and orders where warranted. Each Significant and Substantial (S&S) 
violation requires the mine operator to withdraw miners from that area 
if the mine until that violation is abated. Once a mine operator 
receives a notice of pattern of violations, there must be an inspection 
of the mine in its entirety where no S&S violations are found in order 
for the notice of pattern of violations to be terminated. This 
enforcement tool will provide a powerful incentive for mine operators 
to comply.
    Question. How will this differ from current practices?
    Answer. Using objective criteria to determine whether mines are 
identified as having a potential pattern of violations will result in 
uniformity and consistency for each district and improve the overall 
effectiveness of this enforcement tool.
                     safety and health conferences
    Question. In fiscal year 2007 and fiscal year 2008, how much do you 
expect to spend in dollars and FTEs on Safety and Health Conferences 
conducted by conference litigation representatives? Given your 
expectation that Safety and Health Conferences will increase as a 
result of the higher assessments under the MINER Act, specifically how 
will you meet this higher demand for conferences this year and in 
fiscal year 2008?
    Answer. In fiscal year 2006, MSHA's Coal Mine Safety and Health 
(CMS&H) component conducted 1,612 safety and health conferences. 
Currently Coal has 14 full time conference litigation representatives 
(CLRs) and an additional three vacancies currently in the process of 
being filled.
    CMS&H continues to adjust hiring needs in anticipation of increased 
workloads and attrition and will continue to adjust them. CMS&H is also 
working with the Office of the Solicitor, which must also be capable of 
meeting the corresponding increase in contested cases before the 
Federal Mine Safety and Health Review Commission. This increased 
contested case load is anticipated to result from the increased 
conference case load that the CLRs are unable to resolve.
    Question. How much was spent in fiscal year 2006 for Office of 
Solicitor costs related to investigations and other work done on MSHA's 
behalf? How much do you anticipate will be needed in fiscal year 2007 
and fiscal year 2008 for such costs? How many investigations and other 
workloads will these costs support?
    Answer. In fiscal year 2006, the Office of the Solicitor (SOL) 
expended $8.267 million in support of MSHA legal enforcement, and 
experienced a pending investigative and enforcement-related caseload of 
6,228. The SOL investigative and enforcement related caseload includes 
the defense of pending safety and health citations before 
administrative law judges, before the Federal Mine Safety and Health 
Review Commission, and before the courts, as well as legal advice 
related to investigations and legal support for MSHA regulatory 
initiatives. Because of ongoing substantial increases in MSHA 
enforcement efforts and inspection FTE and the impact of the MINER Act, 
the pending MSHA enforcement caseload for SOL increased by 
approximately 60 percent between 2005 and 2006 and is expected to 
continue to increase by 20-25 percent each year over the next 2 years. 
In fiscal year 2007, based on year-to-date actual figures, SOL 
estimates expenditures for MSHA legal enforcement of $8.679 million, 
and expects the total pending caseload to increase to 7,401. The 2008 
Budget includes $11.604 million for SOL legal enforcement support of 
MSHA, and the total pending caseload is expected to increase to 9,125.
    Question. Your fiscal year 2008 budget stated that your special 
investigations program has experienced a decrease of 42 percent over 
the past 5 years. What is the appropriate number of such staff needed? 
How many FTEs does your fiscal year 2008 budget support for this 
program?
    Answer. For fiscal year 2008, we were requesting to hire 10 
additional special investigators (SIs). Currently, there are 31 
fulltime SIs and MSHA CMS&H is in the process of approving another 
seven for a total of 38. The additional 10 hires would boost that 
number to 48 in fiscal year 2008. MSHA may need to train as many as 19 
additional special investigators for CMS&H to properly staff for the 
foreseeable future. Initially, however, not all of these FTEs would 
necessarily need to be full-time since some special investigators are 
involved with collateral duties. Ultimately, this recommended number of 
trained investigators will likely be needed by CMS&H to cover 
anticipated retirements. Currently, CMS&H is balancing special 
investigators' existing workloads by sharing investigator resources 
across some districts.
                              enforcement
    Question. What is the working relationship between MSHA and the 
various mining oversight agencies at the state level? What, if any, 
obstacles exist to a cooperative and collaborative relationship between 
MSHA and the state oversight agencies?
    Answer. MSHA has a long history of cooperative relationships with 
most of the state oversight agencies for mine safety and health. MSHA 
considers the state agencies among its most important stakeholders and 
strives to partner with those groups. For example, over the years MSHA 
has conducted or participated in joint mine rescue exercises or 
competitions, has conducted problem solving meetings with individual 
states and MSHA/State summits with multiple state agencies to share 
ideas, issues and areas of concern, and to gain a better understanding 
of specific problems facing the states. On numerous occasions, MSHA and 
the state agencies have successfully conducted inspection activities 
jointly with favorable results for both.
    Obstacles to cooperative and collaborative working relationships 
can arise from time to time stemming from divergent policies or 
priorities. However, MSHA and state agencies work collaboratively to 
resolve such situations in a manner that provides optimum safety and 
health for mines. Many times the affected district manager and director 
of the state program work together to resolve these differences in the 
context of a recognition that state standards may exceed MSHA 
requirements but not diminish protections.
    Question. Last year, the Inspector General (IG) found that the coal 
mine hazardous condition complaint process needs strengthening. In 
particular, the IG found that the contractor operating the hazardous 
complaint call center did not have mining experience and utilized 
deficient call scripts. In addition, the IG found that MSHA did not 
quantify a benchmark by which the complaints or imminent danger 
allegations would be investigated. Specifically, how have you addressed 
the issues in the IG report? What is the basis for not having a 
benchmark for how quickly complaints or imminent danger allegations 
will be expected? For the past 2 years, what is the average response 
time for complaints and imminent danger allegations made to the call 
center?
    Answer. Prior to and following the publication of the Office of the 
Inspector General (OIG) report on hazardous condition complaints, MSHA 
has taken the following actions to address the issues identified in the 
September 29, 2006 report:
    (1) enhancements to the new Hazardous Condition Complaint tracking 
system for better management control and oversight of code-a-phone, on-
line E-Gov, and written complaints;
    (2) implementation of a 1-800 complaint answering service staffed 
by trained operators on a 24/7 basis;
    (3) training for MSHA personnel on imminent danger hazardous 
condition complaints, and appropriate documentation for assessment 
purposes; and
    (4) new procedures and policies to address tracking and recording 
calls, timely evaluation of complaints, other OIG findings and 
recommendations, such as complete and accurate recording of complaints 
and timely evaluation of complaints.
    The OIG recommended that MSHA establish a measure to complete 
hazard condition complaint evaluations and imminent danger complaint 
investigations. MSHA has not set benchmarks that place time constraints 
on a safety or health activity and could have a detrimental effect on 
the quality of our investigation and response. If the completion 
performance metric is too binding, the focus is on timeliness instead 
of the overall need for, scope and quality of response and could result 
in premature and uninformed decisions, minimizing the ability for MSHA 
to correct the root cause(s) of the issue.
    At this point we do not have the requested data for the past 2 
years; and, since the call center became operational on December 8, 
2006, we cannot provide the average response time for complaints and 
imminent danger allegations made to the call center for the past 2 
years. However, MSHA has designed new reports to track the issues in 
the OIG report such as response times for complaints and imminent 
danger investigations. The enhancements to the hazardous condition 
complaint system are scheduled for implementation this spring.
    Question. In your written testimony, you stated that MSHA will use 
all of the tools available to achieve your goals, including tough 
enforcement. Why does the budget for the Office of Assessments include 
no additional funding and assume that MSHA will assess fewer violations 
in fiscal year 2008 than in fiscal year 2006? How will MSHA practice 
tough enforcement, including specifically the new authority under the 
MINER Act for flagrant violations, without additional resources and 
with an expectation to assess fewer violations?
    Answer. The newly final proposed penalty schedule is intended to 
improve compliance with mine safety and health laws, and it is MSHA's 
expectation that the increased penalties will ultimately result in 
fewer violations. MSHA has already implemented the MINER Act penalty 
provisions, and this has not increased the costs of assessing the 
associated penalties.
    MSHA is also making revisions to the Civil Penalty component of its 
computer system to provide mine operators additional information on the 
status of contested, paid, and unpaid violations every month. This, 
coupled with another change to have the system automatically apply 
penalty payments, should result in fewer inquiries from the mining 
community and help keep the administrative costs associated with 
assessing and collecting civil penalties in check. When necessary, MSHA 
augments existing staff with contract support to help process the civil 
penalty paperwork. MSHA will be able to fully and vigorously enforce 
the law with the resources requested in the 2008 Budget.
    Question. Mr. Stickler, when I wrote to you on November 1, 2006, I 
had emphasized the importance for you to become a forceful advocate for 
adequate mine safety funding.
    What actions have you taken to ensure that MSHA is a forceful 
advocate for mine safety funding?
    Answer. I fully support the President's fiscal year 2008 budget 
request for $313.5 million, which I believe is a clear demonstration of 
this administration's strong commitment to mine safety. This request 
provides for 757 coal enforcement personnel--the highest number since 
1994. I believe these new inspectors will enable MSHA to aggressively 
enforce our Nation's mine safety and health laws. I also note that a 
strong enforcement program for mine safety and health also needs a 
correspondingly well funded and adequate amount of legal support to 
handle the increased workload. To this end, the President's fiscal year 
2008 Budget also requested $11.604 million for MSHA legal enforcement 
support.
    Question. Many of the provisions of the MINER Act have not been 
implemented. To what extent has inadequate funding impacted on 
implementing the act?
    Answer. MSHA has implemented, or is in the process of implementing, 
all mandated MINER Act provisions that have become due and has done so 
in accordance with MINER Act implementation dates. MSHA funding is 
adequate to meet these deadlines.
    The provisions of the MINER Act that have been implemented by MSHA 
include:
  --Reviewing emergency response plans submitted by underground coal 
        mine operators;
  --Requiring more self-contained self-rescue devices for each miner in 
        every underground coal mine;
  --Requiring flame resistant life lines for evacuation in all 
        underground coal mines;
  --Mandating additional mine evacuation safety training and training 
        on the use of SCSRs;
  --Currently drafting regulations on both Seals and Mine Rescue rules 
        that will meet the requirements of the MINER Act;
  --Establishing the penalties for flagrant and failure to notify 
        violations and increasing penalties for unwarrantable 
        violations;
  --Requiring all mine operators to notify MSHA immediately after a 
        reportable accident;
  --Installing redundant underground to surface communications systems;
  --Setting up the Technical Study Panel on belt air and conveyor 
        belting; and
  --Training 14 MSHA personnel to serve as Family Liaison and Primary 
        Communicators following mine accidents involving multiple 
        fatalities.
    Question. I understand that West Virginia and Illinois are still 
expecting to require mine operators in those States to provide wireless 
communications devices and underground shelters in just a few months. 
Why can't MSHA move ahead on those matters right now so miners in the 
rest of the country can enjoy similar protections?
    Answer. Regarding wireless communication devices, the states of 
West Virginia and Illinois have accepted a relatively broad 
interpretation of the term ``wireless.'' They intend to accept a 
``hardened'' leaky feeder system as complying with the terms of their 
state laws. The leaky feeder systems that MSHA is familiar with are not 
wireless, because portions of the leaky feeder systems are based on 
wired components. The MINER Act allowed a three year period for mines 
to comply with the requirement to provide a ``wireless two-way medium'' 
for communications presumably to allow time for truly wireless 
technology to be adapted to the underground mine environment and for 
wireless systems to obtain MSHA approval.
    As to emergency shelters, MSHA policy PIB 07-03 provided mine 
operators with a range of options for supporting miners who are trapped 
underground with breathable air adaptable for a wide variety of mining 
conditions. The PIB does not prohibit the use of refuge chambers as a 
means of providing breathable air.
    With regard to specific underground refuge shelter requirements, 
the MINER Act stipulates that NIOSH has been given until December 2007 
to provide the technical specifications for refuge chambers, on which 
MSHA's requirements may be based.
    Following the release of NIOSH's report, MSHA will respond to 
Congress describing what actions, if any, the agency intends to take 
and the reasons for such actions. MSHA is working closely with NIOSH in 
their research project.
    MSHA has hosted several informational meetings and demonstrations 
in which refuge chamber manufacturers, NIOSH, industry personnel, and 
state agencies participated. In October 2006, MSHA held a Mine Rescue 
Technologies Expo in conjunction with the annual TRAM (Training 
Resources Applied to Mining) conference at the Beckley National Mine 
Academy. This Expo served to share current worldwide refuge chamber and 
related technologies with the entire U.S. mining industry. MSHA 
recognized it to be in the best interest of the miners to act quickly, 
and, after extensive research and technical data collection, has 
published MSHA policy PIB-07-03 as a practical, immediately 
implementable approach for providing breathable air, based upon the 
requirements of the MINER Act and what is feasible under current 
technology and mining conditions.
    Question. The recent NIOSH draft report on ``mine seals'' indicates 
that workers are currently in ``grave'' danger because these walls can 
explode, regardless of what kind of material they are made from. The 
NIOSH report also suggested that the technology is there to solve this 
problem, and in many cases costs can be minimized.
    Why can't you speed up the agencies action on this critically 
important area, just as MSHA did last year when it mandated that more 
oxygen be made available to miners working underground?
    Answer. MSHA has already taken prompt interim action to increase 
protection for miners from hazards relating to sealed areas of 
underground coal mines by requiring:
    (1) a temporary moratorium on the construction of new alternative 
seals;
    (2) operators to assess the atmosphere behind existing alternative 
seals;
    (3) operators to take remedial actions if the atmosphere behind the 
sealed area has the potential for an explosion;
    (4) improvement of strength and construction specifications for new 
alternative seals;
    (5) inspection and maintenance of existing alternative seals, 
including corrective actions, when necessary; and
    (6) MSHA approval of new alternative seals. MSHA also required 
remedial action, in specific situations, where necessary. These actions 
reduced the hazards of explosions in sealed areas. MSHA is evaluating 
additional interim steps to improve safety conditions associated with 
alternative seals prior to issuance of a final standard.
    MSHA is working expeditiously to develop improved standards for 
seals so that the Agency can meet the MINER Act requirement. MSHA will 
use all information available, including technical information from 
NIOSH, to develop the new standards.
                             msha penalties
    Question. I understand OMB has been reviewing a proposal on MSHA 
penalties for some time. When your staff briefed some of us last month 
they commented on how important the increases in penalties will be in 
helping to ensure greater compliance by the mine operators.
    What is your opinion of the new fine structure under the MINER Act?
    Answer. Increases in penalties are important to helping ensure 
greater compliance by mine operators. The penalty provisions in the 
MINER Act reflect the intent of Congress to ensure greater compliance 
with MSHA's health and safety laws. MSHA fully supports these 
provisions.
    Question. Is OMB trying to weaken the rule on penalties that MSHA 
has proposed?
    Answer. No. MSHA submitted the rule to OMB in accordance with 
Executive Order 12866 as part of the normal rulemaking development 
process and published a final rule that substantially increased 
penalties.
    Question. When do you expect to move forward on this aspect of the 
law?
    Answer. MSHA's civil penalty final rule was published on March 22, 
2007, as Part IV of the Federal Register. The new rule will take effect 
on April 23, 2007. The civil penalty final rule will result in an 
across-the-board increase in penalties, with the amounts increasing 
more significantly for operators with histories of repeat violations of 
the same standard and operators with violations involving high degrees 
of negligence or gravity. The final rule eliminates the single penalty 
assessment provision of $60 for non-significant and substantial 
violations in favor of a regular assessment. It also includes minimum 
penalties of $2,000 and $4,000, depending on whether there is a 
withdrawal order, for unwarrantable failure violations. In addition, 
flagrant violations--those involving ``a reckless or repeated failure 
to make reasonable efforts to eliminate a known violation of a 
mandatory health or safety standard that substantially and proximately 
caused, or reasonably could have been expected to cause, death or 
serious bodily injury''--may receive a maximum penalty of $220,000. 
Finally, a mine operator who fails to timely notify MSHA of a death, or 
injury or entrapment with a reasonable potential to cause death, may 
face penalties between $5,000 and $60,000.
    Question. Also, MSHA can issue a ``pattern of violation'' citation 
to those mines that repeatedly ignore mine safety requirements. Yet I 
understand MSHA has never issued such a citation. What steps are you 
taking to ensure that your District Managers know they will receive 
your support for initiating such sanctions in appropriate cases?
    Answer. I believe the Pattern of Violations regulations can be a 
powerful enforcement tool, and, as my answer to Question 13 
demonstrates, MSHA is working to ensure that this enforcement tool is 
used consistently and effectively to provide miners with additional 
protections against health and safety hazards. With the assistance of 
the Solicitor's Office and district managers, MSHA staff is developing 
objective criteria to identify mines that may have a pattern of 
violations. Ultimately, based on reports from the district manager, the 
Administrator for either Coal or Metal and Nonmetal Mine Safety and 
Health decides whether the mine will be issued a notice of a pattern of 
violations.
    Question. MSHA's regulatory agenda indicates it is going to finally 
update its asbestos rule by next month. Tomorrow I will be chairing a 
hearing in my Employment and Workplace Safety Subcommittee on the re-
introduction of my bill to ban the production and importation of 
asbestos in the United States. This administration has promised to do 
something about asbestos time and again. The current MSHA rule is much 
weaker than OSHA's rule, and to make matters worse, the OSHA rule is 
itself not protective enough according to the results of the latest 
study of the residents of Libby, Montana.
    Are you in fact going to finally issue this rule?
    Answer. Yes. MSHA, however, is currently devoting most of its 
regulatory resources to developing the policies and regulations 
required by the MINER Act of 2006.
    Unlike the commercial asbestos OSHA regulates, MSHA regulates 
asbestos that develops naturally in certain rock formations. The U.S. 
mining industry does not mine or produce asbestos. MSHA's most recent 
summary asbestos sampling data (01/00-3/05) reveal that 19 full-shift 
asbestos samples at five mines, out of 812 samples at 173 mines, 
indicated a personal exposure that equaled or exceeded the OSHA 
Permissible Exposure Limit (PEL) and MSHA's proposed limit. Although 
MSHA has not issued the final rule, MSHA encouraged all five operators 
to adopt, as a company standard, the more protective OSHA PEL of 0.1 f/
cc in a letter sent to each operator. In the letter, the Agency also 
offered guidance for reducing exposures at these mines. In its sampling 
program, MSHA focuses on the mines and occupations most likely to have 
asbestos exposures.
    Question. When?
    Answer. MSHA expects to issue the asbestos rule sometime in early 
or mid 2008, after the Agency completes the MINER Act mandated 
regulatory requirements.
    Question. According to the MINER Act, mine owners were to submit 
emergency response plans to you by August 2006.
    In the past 6 months, how many have you reviewed and approved, and 
what is the status of the plans that are still outstanding?
    Answer. To date, there have been 481 Emergency Response Plans 
(ERPs) submitted for approval from active, producing underground coal 
mines. Of these ERPs submitted for approval, approximately 90 percent 
(431) have been partially approved for various provisions of the MINER 
Act, Emergency Mine Evacuation Final Rule and/or MSHA Program 
Information Bulletins (PIBs) and/or Program Policy Letters (PPLs) 
relevant to ERPs. The remainder of the ERPs are being reviewed and 
discussions are being held with the operators on some aspect of their 
plan submission.
    The guidance on post-accident breathable air (PIB P-07-03) required 
mine operator submission of the portion of the ERP addressing 
breathable air no later than March 12, 2007. Because deficiencies were 
noted in regard to many of those submissions, the breathable air 
provisions are due to be resubmitted, as part of MSHA's usual plan 
approval process, by March 28, 2007 for review by the Districts. 
Consequently, no ERPs have been fully approved by MSHA.
    Question. MSHA seems to be relying heavily on training in its 
approach to addressing safety problems in the industry. In particular, 
the MINER Act requires companies to provide training for emergency 
procedures.
    Has MSHA provided training for the new inspectors it has hired 
recently?
    Answer. Yes, all new inspectors receive extensive and intensive 
training in their job tasks. Training occurs in the classroom, mine 
simulation laboratory, and on-the-job. New inspectors must demonstrate 
proficiency in all areas of training before inspecting mines. As the 
MINER Act requirements, new regulations and policies become effective, 
they are incorporated in the inspector training programs.
    The current Entry Level Training (ELT) schedule has 58 courses with 
669 hours of training, and 9 on-line courses totaling an additional 41 
hours. There are three 4-week modules and three 3-week modules 
presented. Additionally, on-the-job training is incorporated with the 
majority of the ELT courses presented at the Academy. The last 100 coal 
enforcement personnel hired by MSHA have averaged more than 17 years 
prior mining experience.
    Question. How have you evaluated the effectiveness of the current 
safety training programs for miners, particularly the emergency 
training procedures?
    Answer. Our inspectors and field education staff have evaluated and 
continue to evaluate the effectiveness of emergency training 
procedures.
    Our inspectors evaluate training programs during their inspections. 
They check emergency plans, training records, visit classes in session, 
talk to miners about emergency procedures, observe emergency evacuation 
drills and evaluate mine rescue capability. Inspectors cite violations 
where noncompliance with requirements are found. When inspectors 
encounter issues that require more in-depth training, they may 
recommend that MSHA field education staff work with mine operators to 
improve the effectiveness of emergency training procedures.
    Field education personnel and Academy staff continue to evaluate 
the effectiveness of emergency training procedures at mines and assist 
mines with their emergency training programs.
    Field education staff conducted extensive evaluations of the 
effectiveness of emergency procedures at 60 underground coal mines in 
2006. Where deficiencies were found, recommendations were made to 
improve effectiveness. Evaluations and assistance were provided at many 
other mines with varying aspects of emergency procedures. The topics 
covered included self-contained self-rescuer (SCSR) donning, 
transferring and storage; work place examinations, escape and 
evacuation; and mine rescue and fire and explosion prevention. Field 
education staff will continue to evaluate the effectiveness of safety 
training programs for miners. Also, the Agency plans to enlist the 
assistance of several experienced contractors, for a short term, to 
work with our field education staff to evaluate safety training 
programs required by the MINER Act and to speed up advance compliance 
with emergency procedures.
    The National Mine Health and Safety Academy in Beckley, West 
Virginia, has trained and evaluated 38 mining teams in 2006 and 9 thus 
far in 2007 in varying aspects of mine emergency procedures.
                                 ______
                                 
              Question Submitted by Senator Robert C. Byrd
    Question. Last summer, the weekly morbidity and mortality report by 
the CDC noted clusters of rapidly progressive pneumoconiosis--black 
lung--among miners in Southwestern Virginia and Eastern Kentucky. The 
article noted several possible reasons for the continuing occurrence of 
advanced cases of black lung: (1) that the current federal respirable 
dust limit is too high, and needs to be lowered, or (2) that the 
severity of black lung may be increasing because of the toxicity of the 
coal being mined. I would suggest a third possible reason, that MSHA 
may not be enforcing the current dust laws as effectively as it should 
be.
    How do you explain the appearance of such aggressive cases of black 
lung?
    Answer. We anticipated this problem several years ago when we were 
trying to change the dust sampling regulations, unfortunately one 
person at the UMWA did not think we went far enough and we were 
allowing the limited use of masks in the narrow locations where the 
levels could not be held to under 2 mg. That individual is no longer at 
the union and their position has changed. Second the 2 mg level is no 
doubt too high and could be changed, but since we are not hitting it 
anyway what is the impact of dropping it down. What the current system 
does is to create the highest paying jobs at the dustiest locations and 
then by virtue of averaging five samples (one in the dusty job and four 
in the clean locations the operator meets the 2 mg standard and one 
individual is exposed to guite high standards. Also to continue to have 
the operators take samples simply defies logic no other industry in 
this country or abroad has the operator take compliance samples, 
finally the industry and this one guy said we should wait for the 
continuous dust sampler, that was in 2000, 6 years later we are still 
waiting and will be for some time but industry continues to put at risk 
a small but predictable number of miners. The solution drops the level 
to one but changes the sampling system. If you like I will forward my 
proposal for changing the dust regulations.

                         CONCLUSION OF HEARING

    Senator Harkin. I am concerned that we are not moving ahead 
rapidly enough on these new technologies, and we've got to look 
at ways of incentivizing that, and in the meantime, we have to 
use whatever existing technologies that are right out there, 
right now, to make sure that we have the highest possible level 
of assurance to every miner, that in case of one of these 
tragedies, they have the highest expectation of rescue and 
survival. Nothing less will do.
    So, I thank you very much.
    [Whereupon, at 4:25 p.m., Wednesday, February 28, the 
hearing was concluded, and the subcommittee was recessed, to 
reconvene subject to the call of the Chair.]

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