[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
      REDUCING THE GROWING BACKLOG OF CONTESTED MINE SAFETY CASES 

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

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 23, 2010

                               __________

                           Serial No. 111-45

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       John Kline, Minnesota,
    Chairman                           Senior Republican Member
Donald M. Payne, New Jersey          Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey        Howard P. ``Buck'' McKeon, 
Robert C. ``Bobby'' Scott, Virginia      California
Lynn C. Woolsey, California          Peter Hoekstra, Michigan
Ruben Hinojosa, Texas                Michael N. Castle, Delaware
Carolyn McCarthy, New York           Mark E. Souder, Indiana
John F. Tierney, Massachusetts       Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio             Judy Biggert, Illinois
David Wu, Oregon                     Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
    Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California

                     Mark Zuckerman, Staff Director
                 Barrett Karr, Minority Staff Director





















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 23, 2010................................     1

Statement of Members:
    Kline, Hon. John, Senior Republican Member, Committee on 
      Education and Labor:
        Letter, dated March 8, 2010, from the Industrial Minerals 
          Association-North America..............................   105
    McMorris Rodgers, Hon. Cathy, a Representative in Congress 
      from the State of Washington, prepared statement of........    54
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     4
        Questions submitted for the record.......................    54
        Additional submissions:
            Federal Mine Safety and Health Review Commission:
                Table: ``Performance Measurement Matrix, Office 
                  of Administrative Law Judges''.................    95
                Table: ``Appropriations History''................    96
                Table: ``Selected Workload Data''................    97
                Followup on MSHA ERP Stats.......................    98
                PowerPoint slides................................    99
                Table: ``Mine Operators Notified by MSHA of a 
                  Potential Pattern of Violations (POV)''........   100
            Letter, dated June 3, 2008, from the National Mining 
              Association........................................   102
    Thompson, Hon. Glenn, a Representative in Congress from the 
      State of Pennsylvania......................................     5
        Prepared statement of....................................     5
        Additional submissions:
            Statement of the National Stone, Sand & Gravel 
              Association........................................   108
            Paper, dated January 25, 2010, ``What About That Case 
              Backlog?''.........................................   109

Statement of Witnesses:
    Jordan, Hon. Mary Lu, Chairman, Federal Mine Safety and 
      Health Review Commission...................................    16
        Prepared statement of....................................    18
        Responses to questions for the record....................    55
    Main, Joseph A., Assistant Secretary of Labor for Mine Safety 
      and Health, U.S. Department of Labor.......................     7
        Prepared statement of....................................     9
        Responses to questions for the record....................    57
        Additional materials submitted:
            Chart: ``Proposed Civil Penalties v. Penalty Contest 
              Rate''.............................................    59
            Tables: FY2006-2009 assessment data..................    59
            Tables: FY2008-2010 contested penalty data...........    60
            Table: ``Number of Violations Assessed and Contested 
              by Operator FY2009''...............................    61
            Table: ``Companies Contesting Largest Number of 
              Citations''........................................    63
            Table: ``Detail Summary by Mine''....................    64
    Roberts, Cecil E., president, United Mine Workers of America.    21
        Prepared statement of....................................    22
    Watzman, Bruce, senior vice president, regulatory affairs, on 
      behalf of the National Mining Association..................    25
        Prepared statement of....................................    26
        Responses to questions for the record....................    94


                      REDUCING THE GROWING BACKLOG
                     OF CONTESTED MINE SAFETY CASES

                              ----------                              


                       Tuesday, February 23, 2010

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:00 a.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Payne, Scott, Woolsey, 
Tierney, Kucinich, Holt, Bishop of New York, Loebsack, Altmire, 
Hare, Shea-Porter, Fudge, Polis, Sablan, Titus, Platts, and 
Thompson.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Andra Belknap, Press Assistant; Jody 
Calemine, General Counsel; Lynn Dondis, Labor Counsel, 
Subcommittee on Workforce Protections; Patrick Findlay, 
Investigative Counsel; David Hartzler, Systems Administrator; 
Broderick Johnson, Staff Assistant; Gordon Lafer, Senior Labor 
Policy Advisor; Sadie Marshall, Chief Clerk; Richard Miller, 
Senior Labor Policy Advisor; Revae Moran, Detailee, Labor; Alex 
Nock, Deputy Staff Director; Meredith Regine, Junior 
Legislative Associate, Labor; James Schroll, Junior Legislative 
Associate, Labor; Michele Varnhagen, Labor Policy Director; 
Michael Zola, Chief Investigative Counsel, Oversight; Mark 
Zuckerman, Staff Director; Kirk Boyle, Minority General 
Counsel; Ed Gilroy, Minority Director of Workforce Policy; 
Richard Hoar, Minority Professional Staff Member; Ryan Murphy, 
Minority Press Secretary; Jim Paretti, Minority Workforce 
Policy Counsel; Molly McLaughlin Salmi, Minority Deputy 
Director of Workforce Policy; Linda Stevens, Minority Chief 
Clerk/Assistant to the General Counsel; and Loren Sweatt, 
Minority Professional Staff Member.
    Chairman Miller [presiding]. A quorum being present, the 
committee will come to order.
    The Education and Labor Committee meets this morning to 
examine how a growing backlog of contested mine safety cases at 
a small federal agency is putting our nation's miners at risk.
    For years, this committee has worked to protect our miners 
while on the job. We have met many family members who have 
suffered the tragic loss of a loved one. On behalf of the 
committee, I promised that we would do everything we can to 
keep miners safe. I intend to keep that promise.
    Since the tragedies like Sago, Darby, Crandall Canyon, both 
the Congress and the Mine Safety and Health Administration have 
worked to prevent similar disasters, in part by increasing 
enforcement. Inspections are up, as are citations and fines.
    This stronger emphasis on safety is saving lives and 
reducing injuries. In 2006, 76 miners died on the job. In 2009, 
that figure was reduced to 35 fatalities--still 35 deaths too 
many, but we must recognize that it is a record low.
    Despite the progress, some of the largest mining operations 
have responded by challenging these tougher sanctions at a 
staggering rate.
    When MSHA, the Mine Safety Health Administration, cites the 
mine operator for a safety violation, the owners can appeal the 
violation to the Federal Mine Safety and Health Review 
Commission.
    But with increased penalties for unsafe conditions, there 
are significant incentives for mine operators to abuse the 
appeals process.
    The mining industry trots out a litany of excuses as to why 
their members are contesting nearly every health and safety 
violation. One excuse is that MSHA has ended an informal 
practice that allowed mines to chip away at their sanctions 
behind closed doors.
    But as the industry's own testimony shows, the dramatic 
rise in mine operator appeals began the year before MSHA 
changed this policy. So the dramatic rise in appeals seem to be 
the result of something else.
    What we do know is that delays from growing appeals are 
undermining MSHA's ability to impose tougher sanctions on the 
repeat violators.
    Adjudication of appeals must be fair and timely. If cases 
are stuck for months or years in the Review Commission, MSHA 
cannot impose stronger penalties on the worst mine operators. 
As a result, miners' lives are in the cross hairs.
    MSHA tells us that 48 mines with more than 6,000 miners 
would likely face tougher sanctions if not for the holdup of 
the Review Commission.
    Mine operators can be subject to progressively steeper 
fines or even shut down if cited for multiple serious health 
and safety violations. And that is the way it should be. Mine 
operators who callously put their workers in harm's way must be 
held accountable.
    Mines that have faced these steeper penalties in the past 
have responded by cleaning up their act. Future serious 
violations were cut by 72 percent when MSHA notified mines that 
they faced a potential closures for future additional 
violations.
    However, blanket and indiscriminate appeals to the Review 
Commission allow irresponsible mine operators to avoid stiffer 
penalties. This may boost the owner's bottom line, but it 
delays--it delays and puts lives of miners at risk.
    The facts indicate that certain mine operators are abusing 
their right to challenge a violation. In 2005, before increased 
penalties took effect, mine operators appealed one in three 
fines. Today, mine operators contest two-thirds of all fines. 
And some of the largest mine operators are challenging nearly 
every citation. These appeals are clogging the system.
    In 2006, the Review Commission had a backlog of 2,100 
cases. Today, the backlog has skyrocketed to 16,000 cases. 
These 16,000 cases--and that is what it looks like here--these 
16,000 cases are awaiting adjudication.
    They are also allowing mine operators--in some cases, the 
worst operators--to escape the liability for which they are--
they are, in fact, liable and continue to put the miners in 
harm's way. And they represent $195 million in contested fines. 
And it is only growing.
    Based upon estimates provided by the Review Commission, if 
current trends and funding of the agency remain the same, the 
backlog would spiral out of control to 47,000 cases by 2020. I 
think we can see that on the chart up here, what the status quo 
portends if you have the status quo both in challenges and in 
resources available to the agency.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    This staggering case load would render the federal efforts 
to hold mine operators accountable meaningless. The Obama 
administration and Congress have already increased funding for 
the Review Commission to hire four additional administrative 
law judges, in addition to the 10 already seated.
    In this year's budget request, it has asked for four 
additional judges. This is a good start. However, more will 
have to be done to reduce the backlog in cases.
    Today we will hear from the mining industry, the Chair of 
the Review Commission, MSHA and United Mine Workers about the 
causes and the consequences of the growing number of appeals 
for possible solutions.
    It is unacceptable to let a backlog of mine safety cases 
threaten the real progress being made to protect the lives of 
those who go to work every day in our nation's mines.
    With that, I would like to recognize the senior Republican 
on the committee this morning, Mr. Thompson.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    The Education and Labor Committee meets this morning to examine how 
a growing backlog of contested mine safety cases at a small federal 
agency is putting our nation's miners at risk.
    For years, this committee has worked to protect our miners while on 
the job. We have met many family members who have suffered the tragic 
loss of a loved one. On behalf of the committee, I promised that we 
would do everything we can to keep miners safe.
    I intend to keep this promise. Since tragedies like Sago, Darby and 
Crandall Canyon, both Congress and the Mine Safety and Health 
Administration have worked to prevent similar disasters, in part by 
increasing enforcement. Inspections are up, as are citations and fines. 
This stronger emphasis on safety is saving lives and reducing injuries. 
In 2006, 76 miners died on the job. In 2009 that figure was reduced to 
35 fatalities--still 35 deaths too many, but a record low.
    Despite the progress, some of the largest mining operations have 
responded by challenging these tougher sanctions at a staggering rate. 
When MSHA cites a mine operator for a safety violation, the owners can 
appeal the violation to the Federal Mine Safety and Health Review 
Commission.
    But, with increased penalties for unsafe conditions, there are 
significant incentives for mine operators to abuse this appeals 
process.
    The mining industry trots out a litany of excuses on why their 
members are contesting nearly every health and safety violation. One 
excuse is that MSHA ended an informal practice that allowed mines to 
chip away at their sanctions behind closed doors.
    But, as the industry's own testimony shows, the dramatic rise is 
mine operators' appeals began a year before MSHA changed this policy.
    So, the dramatic rise in appeals seems to be the result of 
something else. What we do know is that delays from growing appeals are 
undermining MSHA's ability to impose tougher penalties on repeat 
violators.
    Adjudication of appeals must be fair and timely.
    If cases are stuck for months or years at the Review Commission, 
MSHA cannot impose stronger penalties for the worst mine operators. As 
a result, miners' lives are in the crosshairs. MSHA tells us that 48 
mines with more than 6,000 miners would likely face tougher sanctions 
if not for the holdup at the Review Commission.
    Mine operators can be subject to progressively steeper fines or 
even shut down if cited multiple serious health and safety violations. 
And that's the way it should be. Mine operators who callously put their 
workers in harm's way must be held accountable. Mines that have faced 
these steeper penalties in the past have responded by cleaning up their 
act. Future serious violations were cut by 72 percent when MSHA 
notified mines that they faced potential closures for additional 
violations.
    However, blanket and indiscriminate appeals to the Review 
Commission allow irresponsible mine operators to avoid these stiffer 
penalties. This may boost the owner's bottom line, but delays put the 
lives of miners at risk. The facts indicate that certain mine operators 
are abusing their right to challenge a violation.
    In 2005, before increased penalties took effect, mine operators 
appealed one in three fines.
    Today, mine operators contest two-thirds of all fines. And some of 
the largest mine owners are challenging nearly every citation. These 
appeals are clogging the system. In 2006, the Review Commission had a 
backlog of 2,100 cases. Today, the backlog has skyrocketed to 16,000 
cases. [PICK UP STACK OF CASES] The index of the 16,000 backlogged 
cases is 616 pages long and contains at least $195 million in contested 
fines. And it is only growing. Based on estimates provided by Review 
Commission, if current trends and funding for the agency remain the 
same, the backlog would spiral out of control to 47,000 cases by 2020 
as this chart shows. This staggering caseload will render federal 
efforts to hold bad mine operators accountable meaningless.
    The Obama administration and Congress have already increased 
funding for the Review Commission to hire four new administrative law 
judges, in addition to the ten already seated. And in this year's 
budget request, the administration asked for four more.
    This is a good start. However, more will have to be done to reduce 
the backlog of cases. Today, we will hear from the mining industry, the 
chair of the Review Commission, MSHA and United Mine Workers about the 
causes and consequences of the growing number of appeals, and possible 
solutions.
    It is unacceptable to let a backlog of mine safety cases threaten 
the real progress being made to protect the lives of those who go to 
work in our nation's mines.
                                 ______
                                 
    Mr. Thompson. Well, thank you, Chairman Miller.
    Thank you to the panel for coming in to be a part of this 
important hearing, and good morning to everyone.
    As lawmakers, we try and solve problems, and there is a 
tendency to believe that whatever challenges we face, the 
answer lies with more federal funding or additional rules and 
regulations. Yet we know it is a mistake to legislate a 
solution without fully understanding the challenge.
    And so before we talk about reducing the backlog of 
contested mine safety cases, I would like to spend time this 
morning examining why we are seeing an increase in contested 
citations. I would also like to understand what it means for 
the mine owner and, most importantly, for the safety of the 
miners when a citation is contested.
    For example, it is worth noting that even when a citation 
is contested, any identified safety hazards must be corrected.
    And while there may be disputes about the category in which 
a citation falls, or the financial penalties levied as a 
result, there is--these reasonable disputes should not--and 
indeed, they do not--put the safety and health of the miners at 
risk.
    Knowing that contested citations are not putting miners at 
risk, it is still reasonable for us to ask why we have seen an 
increase in the number of contested cases. One logical place to 
look is the legislative and regulatory changes that have taken 
place over the last several years.
    Of course, we know Congress acted in a bipartisan fashion 
in 2006 to increase penalties for safety violations, especially 
for those of a repeated or egregious nature. The regulations 
implementing the civil penalties of the MINER Act were 
finalized in 2007.
    Then in 2008, and again in 2009, the Mine Safety and Health 
Administration announced a series of policy changes that limit 
opportunities for mine operators to discuss citations without 
first initiating a full legal dispute of MSHA's findings.
    In other words, legislative and regulatory changes are 
forcing mine operators to formally contest citations in order 
to provide more information to MSHA. It is no wonder we have 
seen an uptick in the number of citations that are challenged.
    Is this a case of mine operators acting in bad faith? Some 
may try to make that claim today, but I would offer a different 
view. Rather, it appears mine operators are simply adapting to 
a punitive new regulatory environment that favors litigation 
and conflict over collaboration.
    Now, I hope today's hearing examines both the causes and 
the consequences of the increases in contested MSHA citations, 
and I hope this committee proceeds with caution before we 
attempt to legislate in an area where legislation and 
regulation may actually be the cause rather than the solution 
to the problem.
    Thank you, Mr. Chairman, and I yield back.
    [The statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress 
                     From the State of Pennsylvania

    Thank you Chairman Miller, and good morning.
    As lawmakers, we like to try and solve problems. There's a tendency 
to believe that whatever challenges we face, the answer lies with more 
federal funding or additional rules and regulations.
    Yet we know it is a mistake to legislate a solution without fully 
understanding the challenge. And so, before we talk about reducing the 
backlog of contested mine safety cases, I'd like to spend time this 
morning examining why we're seeing an increase in contested citations. 
I'd also like to understand what it means for the mine owner and--most 
importantly--for the safety of miners when a citation is contested.
    For example, it's worth noting that even when a citation is 
contested, any identified safety hazards must be corrected. While there 
may be disputes about the category in which a citation falls or the 
financial penalties levied as a result, these reasonable disputes 
should not--and indeed, they do not--put the safety and health of 
miners at risk.
    Knowing that contested citations are not putting miners at risk, it 
is still reasonable for us to ask why we've seen an increase in the 
number of contested cases.
    One logical place to look is the legislative and regulatory changes 
that have taken place over the last several years. Of course, we know 
Congress acted in a bipartisan fashion in 2006 to increase penalties 
for safety violations, especially for those of a repeated or egregious 
nature.
    The regulations implementing the civil penalties of the MINER Act 
were finalized in 2007. Then, in 2008 and again in 2009, the Mine 
Safety and Health Administration announced a series of policy changes 
that limit opportunities for mine operators to discuss citations 
without first initiating a full legal dispute of MSHA's findings.
    In other words, legislative and regulatory changes are forcing mine 
operators to formally contest citations in order to provide more 
information to MSHA. It's no wonder we've seen an uptick in the number 
of citations that are challenged.
    Is this a case of mine operators acting in bad faith? Some may try 
to make that claim today, but I would offer a different view. Rather it 
appears mine operators are simply adapting to a punitive new regulatory 
environment that favors litigation and conflict over collaboration.
    I hope today's hearing examines both the causes and the 
consequences of the increase in contested MSHA citations--and I hope 
this committee proceeds with caution before we attempt to legislate in 
an area where legislation and regulation may actually be the cause--
rather than the solution--to the problem. Thank you and I yield back.
                                 ______
                                 
    Chairman Miller. I thank the gentleman for his statement.
    And pursuant to committee rule 7(c), all members may submit 
an opening statement in writing which will be made part of the 
permanent record.
    And I would like to now welcome our witnesses to this 
committee hearing. Thank you for accepting our invitation to 
come and testify. I think the panel provides us the right 
parties to investigate this matter.
    I know that suggestions have been made about this system 
from both the operators and from MSHA about items that are 
under consideration for changing. We look forward to hearing 
that from you.
    Before we begin, I will say I am going to introduce you, 
and then we--in our lighting system, there will be a green 
light. You will get 5 minutes to tell us what you think are the 
most important parts of your testimony. Your written statement 
will be placed in the record in its entirety and any supporting 
documents that you have for your testimony.
    When you have 1 minute remaining, an orange light will come 
on, and we would like you to start wrapping up your testimony. 
But we want to make sure that you feel that you get to complete 
it in a coherent fashion, so that you don't think you just have 
to stop when the red light comes on when your time is up. We 
want you to present your testimony in its best light.
    Our first witness this morning will be Mr. Joe Main--who is 
the Assistant Secretary of Labor for the Mine Safety and Health 
Administration. He was confirmed by the Senate on October 21st, 
2009. He began working in coal mines in 1967 and has more than 
40 years of experience in mine health and safety.
    In 1982 he was appointed administrator of the Occupational 
Health and Safety Department of the United Mine Workers of 
America, a position he held for 22 years.
    Ms. Mary Lucille Jordan is the Chairman of the Federal Mine 
Safety and Health Review Commission, which provides 
administrative trial and appellate review for legal disputes 
arising under the Mine Act. She served as chair of the 
Commission from 1994 until 2001, and most recently as a 
Commissioner from 2001 until 2009.
    Prior to joining the Commission, Ms. Jordan served as the 
senior staff attorney for the United Mine Workers of America 
from 1977 to 1994.
    Mr. Cecil Roberts is the president of the United Mine 
Workers of America and has served in that capacity since 1995. 
After college, he worked for 6 years at the Carbon Fuels' 
Number 31 mine in Winifred, West Virginia.
    In August of 2009, Mr. Roberts was reelected to his fourth 
term as president of the union.
    Mr. Bruce Watzman is the senior vice president of 
regulatory affairs at the National Mining Association. He 
oversees public policy issues in Congress and relevant 
regulatory agencies that advance the health and safety 
performance of the U.S. mine industry and manufacturers that 
provide equipment to the industry.
    Welcome to all of you.
    And, Mr. Secretary, we are going to begin with you.

STATEMENT OF JOSEPH MAIN, ASSISTANT SECRETARY, MINE SAFETY AND 
        HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR

    Mr. Main. Thank you, Mr. Chairman. Is it on? Okay, thank 
you.
    Chairman Miller, Ranking Member, members of the committee, 
I appreciate the opportunity to appear here on behalf of the 
U.S. Department of Labor Mine Safety and Health Administration 
to discuss the backlog of contested cases pending before the 
Federal Mine Safety and Health Review Commission.
    I share your concern and have made this a top priority 
since my confirmation as the Assistant Secretary.
    To successfully tackle the backlog, it is important to 
understand why it has developed. As you know well, tragedy 
struck in 2006 at the Sago Mine, Alma #1 mine in West Virginia 
and Darby Mine in Kentucky, claiming the lives of 19 miners.
    In response, Congress enacted the MINER Act and increased 
funding of MSHA to ensure required miners' protections at all 
mines. MSHA also revised its penalty regulations in an effort 
to strengthen enforcement. As a result of these reforms, 
penalties increased, especially for serious and repeat 
violations, as did the number of violations that MSHA cited.
    Since those changes, the percentage of violations that 
operators contest before the Commission has grown dramatically, 
from 7.4 percent in 2006 to more than 25 percent today, causing 
a backlog of about 82,000 pending violations and $210 million 
in contested penalties.
    MSHA does not believe that litigating our way out of this 
backlog is the only long-term solution. And we are pursuing 
some changes within MSHA guided by several principles.
    Reform should, one, improve the implementation of the Mine 
Act and mine safety and health, simplify the system, improve 
consistency in enforcement, and reduce the contest rate. And 
those are the four principal issues that we look at.
    As we consider the backlog, we must note the tremendous 
improvement in mine safety since MSHA began--stepped up 
inspections and increased penalties. Mining deaths dropped to a 
record low in 2008 and again in--to an all-time low of 35 in 
2009.
    The number of deaths in underground coal mines last year 
fell to a record low of seven. And for an 8-month period in 
this country, we had not one single coal miner die on the job 
in underground coal mines. And I think that is historic.
    No doubt, we must find solutions to the backlog, but we 
must never sacrifice our serious commitment to enforcement and 
mine safety and health. In terms of solutions, the industry's 
responsibility for mine safety is essential.
    In most contested cases, there is no dispute a violation 
occurred. At issue is the severity of the violation. The best 
way to resolve the backlog is improved industry health and 
safety management programs. Mines with an effective compliance 
plan under rigorous inspections will receive fewer violations.
    Next, I am looking at the role of conferences for MSHA and 
mine operators to review citations. The option to hold 
conferences prior to the operators contesting the penalty seems 
to be the best approach to resolve disputes over violations 
early in the process and keep those citations out of the 
backlog.
    Opportunities also exist to resolve disputes over citations 
and orders at the time of the mine inspection, and we will 
encourage that.
    Also, we must diminish the incentives for operators who 
appear to be developing a pattern of significant and 
substantial safety violations to contest simply to delay 
enforcement.
    MSHA is announcing today its intention to review pending 
cases of operators with significant S&S citations and, where 
warranted, seek to expedite those cases so that the pattern of 
violations enforcement of the Mine Act is having the intended 
effect.
    Consistency of enforcement is another critical factor 
reducing contest rates. Consistency requires concentrating on 
review and evaluation which we are undertaking in several 
areas.
    MSHA's also considering how to implement operator or 
corporate-wide holistic settlements to reduce the backlog. A 
program of corporate-wide engagement would change the landscape 
of the contested case backlog.
    Another possible reform would incentivize operators not to 
contest. Operators currently receive a 10 percent reduction in 
proposed penalties for prompt good faith abatement of 
citations. We are reviewing whether or not additional financial 
incentives would be of value or not.
    The Commission is obviously an important partner in 
tackling the backlog. We endorse reforms under consideration to 
simplify the settlement process, expand formal settlement 
conferences by judges and simplify Commission proceedings.
    We believe the ideas presented here can reduce the current 
backlog issues and assist in preventing further backlog--cases 
in the backlog.
    I look forward to working with the committee on this, and I 
am happy to answer any questions you have.
    [The statement of Mr. Main follows:]

Prepared Statement of Joseph A. Main, Assistant Secretary of Labor for 
            Mine Safety and Health, U.S. Department of Labor

    Mr. Chairman, Mr. Ranking Member, and Members of the Committee: I 
appreciate the opportunity to appear here today on behalf of the U.S. 
Department of Labor, Mine Safety and Health Administration (MSHA) to 
discuss a matter of serious concern--the growing backlog of contested 
citations for violations of health and safety standards awaiting 
resolution by the Federal Mine Safety and Health Review Commission 
(Commission). Upon my confirmation in October of last year, I knew that 
I was facing a significant and growing backlog. Since my first day on 
the job, I have been examining the causes of the existing backlog and, 
in conjunction with the Office of the Solicitor of Labor, exploring 
solutions.
    When Congress passed the Federal Mine Safety and Health Act of 1977 
(Mine Act), it declared that ``the first priority and concern of all in 
the coal or other mining industry must be the health and safety of its 
most precious resource--the miner.'' The Mine Act recognized that 
mining in all its forms presents unique hazards for miners. The Act 
establishes health and safety standards for all mine operators to 
follow. It also mandates active oversight by MSHA through regular mine 
inspections. The Mine Act requires MSHA to inspect underground mines 
four times per year and surface mines two times per year. Congress also 
included in the Mine Act strong enforcement tools to ensure compliance 
with the safety and health standards mandated by the statute and the 
standards and regulations promulgated under it. At the same time, the 
law gives mine operators the right to contest MSHA's use of those 
strong enforcement tools, including proposed civil penalties.
    For the Mine Act to be effectively implemented the way Congress 
intended, contested penalty cases must be resolved in a timely way. 
Even though the case backlog has not affected MSHA's ability to require 
operators to abate hazardous conditions, it has severely reduced the 
deterrent value that penalties were meant to have.
Current Backlog
    To understand the backlog, it is important to look at how it has 
developed. From 2005 to 2009, the number of violations and penalties 
certainly rose, but the percentage of cases contested by the mining 
industry and the percentage of total penalties reflected in those 
contested cases rose even faster:
     In CY 2005, MSHA cited 128,000 violations and proposed 
$24.9 million in penalties. That year, mine operators contested 6% of 
the violations, accounting for 29% of the proposed penalties proposed.
     In CY 2006, MSHA cited 140,000 violations and proposed 
$35.1 million in penalties. That year operators contested 7% of 
violations representing 35% of the proposed penalties.
     In CY 2007, MSHA cited 145,000 violations and proposed 
$74.5 million penalties. Operators contested 15% of violations that 
year, which represented 54% of the penalties proposed.
     In CY 2008, 174,000 violations were cited and MSHA 
proposed $194.2 million in penalties. That year 24% of violations were 
contested by mine operators representing 69% of penalties proposed.
     In CY 2009 MSHA cited 175,000 violations and proposed 
$141.2 million in penalties. Mine operators contested 27% of violations 
representing 66% of proposed penalties.\1\
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    \1\ There is a time lag between the time a citation is issued and 
the time a penalty is proposed. If one adjusts for that lag time, 
violations cited in CY 2005 represented $28.1 million in penalties, CY 
2006 citations represented $42.8 million in penalties, CY 2007 
citations represented $129.4 million in penalties, CY 2008 citations 
represented $143.2 million in penalties, and CY 2009 citations 
represent $129.8 million in penalties.
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    As the number of contested citations grew, MSHA and the Commission 
worked to increase the number of contested citations that became final, 
but did not keep pace with the growing number of citations that were 
contested:
     In 2005, 7,200 citations were contested and 7,182 
citations became final.
     In 2006, 10,036 citations were contested and 6,071 
citations became final.
     In 2007, 19,546 citations were contested and 7,574 
citations became final.
     In 2008, 46,792 citations were contested and 13,456 
citations became final.
     In 2009, 46,526 citations were contested and 20,393 
citations became final.
    As these numbers demonstrate, the number of cases that are 
contested has significantly outpaced the rate at which cases are being 
resolved. One factor in this increase is clearly an increase in the 
number of citations MSHA has issued and the amount of penalties 
proposed. With the passage of the MINER Act and MSHA's commitment to 
conduct all statutorily mandated inspections, there has been about a 
30% increase in the number of citations issued. Strikingly, while the 
increase in citations rose 30%, the dollar value of associated 
penalties proposed in those years increased almost five-fold, from $35 
million in 2006 to an average of $167.5 million per year in 2008 and 
2009.
    The backlog cannot be explained solely by the increase in the 
number of violations MSHA has cited. The increase in the percentage of 
contested citations has grown much faster than the rate of increase in 
citations. The percentage of citations that operators contested rose 
dramatically, from 7.4% in 2006, or about 10,000 citations, to an 
average of just over 25% per year in 2008 and 2009, more than 46,000 
contested citations each year.
    The system's inability to keep pace with the rate of contested 
cases has caused a backlog of some 82,000 violations and $210 million 
in contested penalties pending before the Commission.\2\ The backlog 
includes cases where MSHA and the operator have submitted a proposed 
settlement but are awaiting Commission approval, cases yet to be 
assigned a hearing date, cases scheduled for hearing or at hearing 
before an Administrative Law Judge (ALJ), and cases before the 
Commission on review. While most mine operators do not file notices of 
contest, a few operators are contesting a large percentage of their 
violations and proposed penalties, with some operators contesting up to 
100% of the citations and proposed penalties they receive.
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    \2\ MSHA tracks contested matters before the Commission by 
citations. For each violation cited by a mine inspector an operator 
receives a citation. Multiple citations against a mine operator can be 
docketed in a single case, also called a ``docket.'' While the 
Commission typically describes the contested case backlog and MSHA the 
contested violation backlog, they are the same disputed matters. MSHA 
does not dispute the Commission's 16,000 figure.
---------------------------------------------------------------------------
    This increase in the number of contested citations has greatly 
increased the time it takes for a contested case to make its way 
through the process. For example, contested cases that became final in 
CY 2006 took an average of 374 days from the time the citation was 
issued until the time the case was resolved. In CY 2009, it took 587 
days.
    To successfully tackle the backlog, we must not only understand how 
it has developed over the past few years, it is also important to 
understand why it has developed. An examination of recent history 
provides the answers. As this Committee knows, tragedies struck the 
mining industry in 2006, starting with the mine explosion and disaster 
at the Sago Mine in West Virginia on January 2, 2006, where twelve 
miners lost their lives. It was followed by a deadly fire on January 
19, 2006 at the Alma #1 mine in West Virginia that claimed two lives. A 
few months later on May 20, 2006 a disastrous explosion occurred at the 
Darby Mine in Eastern Kentucky, claiming the lives of five more miners.
    In response, Congress enacted new legislation to improve mine 
safety and health. That legislation, the MINER Act, established a 
number of new safety requirements, including the use of enhanced mine 
communications and tracking technology, establishment of refuge areas, 
greater training of mine rescue teams, and other actions. Most relevant 
to our discussion today, the legislation also added minimum penalties 
of $2,000 for unwarrantable failure citations or orders issued under 
section 104(d)(1) and $4,000 for subsequent orders issued under 
104(d)(2) of the Mine Act. It established penalties of up to $220,000 
for newly created ``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.'' The MINER Act also established 
penalties between $5,000 and $60,000 for a mine operator who fails to 
notify MSHA in a timely manner of a death or an injury or entrapment 
with a reasonable potential for causing death.
    MSHA also exercised its regulatory authority to increase penalties 
for violations of other health and safety standards. Following the 
tragedies at Sago, Alma and Darby, MSHA's penalty structure came under 
increased scrutiny. The Agency received criticism that its penalty 
assessments were insufficient as a deterrent for mine operators to 
prevent safety and health hazards. In March of 2007, MSHA completed 
rulemaking to revise its penalty assessment tables. These regulatory 
changes increased penalty amounts for most violations, and increased 
penalties substantially for serious hazards and for repeat violators.
    Also in the wake of the Sago and Alma tragedies, Congress directed 
MSHA to enhance its inspection program. Congress increased MSHA funding 
for the specific purpose of ensuring the full compliance with the Mine 
Act's requirement that all mines receive regular annual inspections--
four complete inspections per year for all underground mines and two 
complete inspections per year for surface mines. Congress took this 
action because MSHA was not achieving these mandated responsibilities.
    MSHA used the funding to increase the number of mine inspectors. 
The result was both an increase in the number of inspections--up to 
mandated levels--and in the quality of those inspections. As a result, 
the number of inspections rose from 21,705 in CY 2007 to 23,882 in 
2008, a 10% increase, and 21,999 in CY 2009, a 1% increase from CY 2007 
levels. With the increase in inspections, the number of cited 
violations increased as well, up 20% in CY 2008 and CY 2009 from CY 
2007 levels.
    The increased funding was used to recruit additional mine 
inspectors, and pay overtime necessary to meet the 100% inspection 
mandate. It is important to note that during this period of 100% 
enforcement in 2008 and 2009, the mining industry achieved record 
improvements in mine safety. In 2008, mining deaths reached an all-time 
low of 52. That record was again broken in 2009.
    Preliminary reports show that in 2009 a record low of 35 miners 
died as a result of mine accidents. The year 2009 also marked an 
important record in coal mining. The number of deaths in underground 
coal mines fell to a record low of 7--half the number of any previous 
year on record. For the first time, the number of mining deaths at 
underground coal mines was much lower than at surface coal mines. Just 
as historic is the fact that the underground coal mining industry 
experienced a period of 8 months--from October 2008 through June of 
2009--in which no underground coal miner was killed in a mining 
accident.
    Similarly, in metal and non-metal mining, the number of deaths at 
aggregates mines--stone, sand, gravel and limestone--fell to a record 
low of 8 in 2009. Given that the majority of mining deaths in the metal 
and nonmetal mining sectors have occurred in recent years at aggregates 
facilities, this reduction is also a remarkable achievement.
Measures Moving Forward
    As we consider solutions to the backlog, we must be mindful of 
these improvements and MSHA's increased enforcement presence over the 
past few years when the industry achieved these safety records. 
However, while these safety records represent great strides forward in 
mine safety, we cannot lose sight of the fact that we continue to 
strive to prevent all miner deaths. Nor can we forget the grief and 
suffering of the families, friends and coworkers of the miners who 
died.
    It is in the best interest of all affected--miners, mine operators, 
MSHA, the Solicitor of Labor, and the Federal Mine Safety and Health 
Review Commission--to effectively reduce the current backlog of cases 
and implement measures that will improve the process for contesting 
cases going forward.
    Toward that end, MSHA and the Office of the Solicitor of Labor, 
which represents MSHA before the Commission, have given serious 
consideration to the backlog's causes and potential remedies. As a 
result, we have identified a number of structural changes that could 
help improve the contested case process. The goal of the changes under 
consideration must be both to reduce the current backlog and to reduce 
the rate of contested cases in order to prevent future backlogs.
    The changes that we implement to address these goals will be guided 
by several principles: (1) improved implementation of the Mine Act and 
mine health and safety, (2) simplification of the contested case 
process, (3) improved consistency by MSHA inspectors and supervisors, 
and (4) creation of an environment where fewer cases enter the contest 
process.
    The following is a review of the issues contributing to the backlog 
and solutions under consideration:
Industry Responsibility for Mine Safety
    The Mine Act obligates MSHA inspectors to cite violations observed. 
A review of the disposition of violations cited to mine operators 
indicates that a relatively minimal number of citations and orders are 
found completely without merit and vacated by either MSHA or the 
Commission. The percentages of assessed citations and orders vacated or 
withdrawn was 0.4% in 2006, 0.5% in 2007, 0.5% in 2008 and 0.5% in 
2009. In most of the contested cases before the Commission, the issue 
is not whether a violation of a mandatory health or safety standard 
occurred. Instead the dispute is over the gravity of the violation and 
the operator's negligence.
    Given that fact, the starting point for any analysis of the backlog 
is the obligation of mine operators to eliminate the conditions that 
lead to so many violations. With so many citations and orders issued, 
it is imperative that mine operators improve compliance. To do that, 
the mining industry must expand its health and safety management 
programs and more thoroughly and regularly identify problem areas, 
inspect mines and abate hazards in advance of MSHA inspections. If MSHA 
inspectors can inspect workplaces and find these conditions, mine 
management should be finding them as well. If mine operators would take 
greater ownership of mine safety and health, it would be beneficial for 
all involved. Workers will be safer, the number of violations will be 
reduced, and penalties will go down. Instead of paying fines to the 
government, companies can invest that money back into ensuring the 
optimum health and safety at their mining operations.
    With much lower fines in the past, some mine operators may have 
considered MSHA fines to be a cost of doing business, and abdicated 
their obligation to identify and correct hazards at their mines and 
ensure a healthy and safe workplace prior to inspections by MSHA. The 
responsibility for identifying and remedying mine hazards needs to be 
shifted from MSHA inspectors back to the mine operators.
    To encourage mine operators to take more responsibility for the 
safety and health of their workers, MSHA will evaluate ways to improve 
the use of effective mine safety and health management programs by mine 
operators, particularly those that may be subject to the application of 
the pattern of violations criteria pursuant to section 104(e) of the 
Mine Act. I firmly believe the best way to resolve the backlog problem 
is to take measures to ensure safer and healthier mines that, under 
rigorous and complete inspections, receive fewer citations and orders 
from MSHA because there are fewer violations to cite. This will require 
a collaborative approach with the mining industry.
    MSHA will also work with the mining industry to develop training 
programs and materials to aid compliance by mine operators. Some of 
those are underway. For example, I am working with the National Stone, 
Sand and Gravel Association to expand such an initiative. My goal as 
Assistant Secretary is to change the paradigm in the mining industry so 
that mine operators are more proactively preventing hazards in their 
workplaces and fixing conditions that would be cited before a mine 
inspector even enters the property.
Simplification of Citations
    In most of the contested cases before the Commission, the issue is 
not whether a violation occurred. Instead the dispute is over the 
gravity of the violation, the degree of mine operator negligence, and 
other factors. Currently, when writing a citation, a mine inspector 
determines the likelihood of injury from the violation, the severity of 
an injury if one occurred, and the number of persons affected by the 
hazardous condition, and decides whether the violation is significant 
and substantial. In addition, the inspector determines the operator's 
degree of negligence. These determinations are then used under the 
regulations to propose penalties based on statutory criteria. We are 
considering how to make the evaluation and writing of citations by 
inspectors simpler and ultimately more objective, clear and consistent. 
Any simplification would consider the effect on the number of issues 
that mine operators most often contest.
Mine Operator Conference Requests with MSHA
    Under MSHA regulations a mine operator may request a safety and 
health conference for any citation, although MSHA may exercise 
discretion whether it grants such requests. Historically, MSHA has held 
safety and health conferences when requested by the mine operator to 
discuss and resolve disputes over violations. MSHA generally grants 
these requests and determines the nature of the conference. MSHA 
considers all relevant information presented with respect to each 
citation that is conferenced. Conferences generally consist of a 
discussion of the specific findings by the inspector regarding the 
seriousness of the violation, including the degree of negligence, 
likelihood of occurrence, severity of injury or illness if injury 
occurred, and the number of miners potentially affected by the cited 
hazard. For each of these issues there are categories that have points 
assigned for each category. For example there are five degrees of 
negligence ranging from no negligence to reckless disregard, with 
progressively higher points assigned to higher degrees of negligence. 
Those points are used in a formula to propose a civil penalty amount 
for the violation. Until February 2008, MSHA held these conferences 
prior to the assessment of the civil penalty.\3\ Once the MSHA health 
and safety conferences were concluded, MSHA's Office of Assessments 
would assign a penalty, taking into consideration any revisions MSHA 
enforcement personnel made to the evaluation of the violation. This 
conferencing process resulted in the mine operator filing no penalty 
contest if they were satisfied with the results of the conference.
---------------------------------------------------------------------------
    \3\ In February 2008 MSHA suspended most health and safety 
conferences, effectively deferring discussions until after the proposed 
penalty. In March 2009 MSHA formally created an ``Enhanced Health and 
Safety Conference'' that deferred all conference requests until after a 
penalty was proposed.
---------------------------------------------------------------------------
    Disputes resolved during health and safety conferences do not 
require approval by the Commission. In addition, uncontested citations 
and orders automatically become final orders of the Commission. Some 
mine operators, however, filed contests even after participating in an 
MSHA conference. Possible reasons for this behavior include 
disagreement with MSHA's position at the conference, or a desire to 
further reduce the seriousness of the violation to lower its impact on 
the operator's violation history, which can both increase future fines 
and cause MSHA to target the operator for scrutiny as an operator with 
a potential ``pattern of violations.'' Another possible reason is that, 
with changes in penalties, operators still wished to contest penalties 
after discovering the dollar amount of the proposed assessment.
    In March 2009 MSHA implemented the Enhanced Safety and Health 
Conference, which was designed to reinstate early conferences to settle 
cases but still delayed conferencing until after a civil penalty was 
proposed and formally contested by the mine operator. This 
significantly added to the Commission's caseload because proposed 
penalties that are formally contested, even if settled, must proceed 
through the Commission process and be reviewed and approved by an ALJ.
    After a review of the conferencing process it appears that the best 
approach is to hold the MSHA health and safety conference, if requested 
by the mine operator, prior to MSHA issuing a proposed penalty 
assessment, and provide the mine operator with an estimated penalty 
amount based on the standard assessment formula. The MSHA field 
conferencing and litigation representatives (CLRs) and potentially 
other personnel would review the facts of the violation and the 
inspector's determination of negligence, likeliness of occurrence, 
etc., as before. The resolution of these cases does not require 
Commission approval unless they are later contested. MSHA will 
implement this change through policy.
    In addition to these changes, opportunities exist in the current 
system for operator and miner communication with MSHA to resolve 
disputes over citations. MSHA holds a ``closeout'' inspection meeting 
at the completion of each mine inspection to discuss the cited 
violations with the operator and any miners' representatives. This 
provides the mine operator and miners' representatives an opportunity 
to discuss the violations directly with the MSHA inspector.
    Additionally, mine management and miners' representatives are 
permitted--and encouraged--to travel on the inspections at the mine. 
MSHA is examining how to maximize the use of these processes as a tool 
to resolve factual disputes about citations that later arise in the 
litigation process.
Review of the Pattern-of-Violations Process
    We are also reviewing the current pattern of violation criteria 
contained in 30 C.F.R. Part 104. The criteria used for determining that 
an operator has a potential pattern of violations include a mine's 
history of significant and substantial (S&S) violations of a particular 
standard, history of S&S violations related to a particular hazard, and 
history of S&S violations caused by an unwarrantable failure to comply 
with health and safety standards. Once a potential pattern is found, an 
operator has a notice period to reduce the number of S&S violations at 
its mine. If the operator fails to reduce the number of violations, 
under Section 104(e) of the Mine Act, MSHA is required to first issue a 
notice that a pattern exists, and then require the withdrawal of all 
miners from any area of the mine where a significant and substantial 
violation has been cited.
    Currently, when applying the criteria for finding a potential 
pattern of violations, MSHA only considers violations that have become 
final orders of the Commission. Citations and orders that are under 
contest, no matter how egregious, are not considered when enforcing the 
pattern of violation section of the Mine Act. We believe some operators 
contesting S&S violations may be doing so because it delays the finding 
of a pattern, adding to the backlog and delaying MSHA from using this 
enhanced enforcement tool at their mines. As a result, there are 
operations that might be on a potential pattern of violations, but the 
backlog has prevented their cases from becoming final orders.
    It is important that we remove the incentive for operators with 
repeated S&S safety violations at their mine to contest violations 
simply to delay enforcement. Delay in addressing S&S hazardous 
conditions puts miners at risk, is at odds with the purpose of the Mine 
Act and mission of MSHA, and is unacceptable. MSHA is considering a 
review of the pattern of violation process to determine whether our 
current approach is the best one for providing timely protection for 
miners working at mines with high levels of S&S violations.
    MSHA will also consider whether the implementation and use of 
health and safety management programs for operators with these kinds of 
serious violations might also play a role in improving the pattern of 
violations process. Mine operators with a pattern of violations 
obviously do not maintain effective mine safety and health management 
programs; otherwise they would not have accumulated the violations that 
result in their placement on a potential pattern of violations. MSHA 
will study the use of such programs and their potential to both reduce 
the number of violations entering the system and improve mine safety 
and health.
    Even without any changes to the pattern of violation criteria, we 
believe that under the current system we can take action to reduce the 
incentive for operators with S&S violations to file contests simply to 
delay fixing a systematic pattern of serious safety and health hazards. 
MSHA is announcing today its intention to review pending cases of those 
operators with significant numbers of S&S citations, and where 
warranted, seek to expedite those cases so that the pattern of 
violations enforcement scheme of the Mine Act is given its intended 
effect and miners are not left at continued risk from delays caused by 
the backlog.
    While this backlog will not be fixed overnight, we will take these 
steps to make sure operators that should be under scrutiny for having a 
potential pattern of serious health and safety violations get that 
scrutiny. We also believe that this strategy will remove the incentive 
of operators who may choose to contest cases simply for the purpose of 
delaying a pattern of violations finding.
Consistency
    Some operators complain MSHA has not been consistent in its 
application of enforcement decisions involving health and safety 
standards, and that enforcement of the standards and evaluation of 
cited conditions varies from inspector to inspector. Consistency of 
enforcement is critical and requires constant training and review. 
Consistency in the application of the laws, rules and regulations 
enforced and administered by MSHA is an issue I have been studying 
closely. MSHA's workforce has changed significantly over the past few 
years. A substantial number of highly experienced mine inspectors have 
retired and been replaced by new inspectors. For example, about 55% of 
the current coal mine inspectors have been hired since July 2006. In 
Metal and Nonmetal, about 37% of inspectors were hired during that same 
period. Although new hires go through extensive training of up to two 
years and apprentice with a journeyman inspector before they can begin 
unsupervised inspection duties, even the most experienced of these new 
inspectors have only been conducting federal mine inspections for a 
couple of years.
    The significant turnover in MSHA's inspectorate coincided with the 
significant changes in the law brought about by the 2006 enactment of 
the MINER Act. The MINER Act required MSHA's inspectors to quickly get 
up to speed on new standards regarding mine communications and tracking 
devices, emergency response plans, sealing abandoned areas in 
underground coal mines, use of belt air to ventilate coal mines, and 
mine rescue teams and emergency refuge chambers and alternatives. As I 
mentioned earlier, MSHA also revised its penalty tables in this period, 
substantially increasing fines. These changes can create a potential 
for inconsistent application of the Mine Act--and we are evaluating how 
to maintain and improve our consistency where necessary.
    Consistency requires ongoing training and review. To help with 
consistency, MSHA is developing training programs for its supervisors 
with the goal that inspectors will be held accountable for writing 
citations based on solid facts and evidence, and based on sustainable 
legal determinations. We want to ensure that inspectors are issuing 
citations for workplace hazards that can be supported before the 
Commission. To that end, we are collaborating with the Office of the 
Solicitor in developing these training programs and course material. We 
want to ensure that inspectors are writing ``good paper,'' and are not 
issuing citations for conditions where there is no violation or where 
there is a lack of evidence to support the inspector's findings.
    Consistency also requires training of Conference Litigation 
Representatives (CLRs), the MSHA personnel who handle most of the 
contested cases in the litigation process. It is vital that CLRs 
evaluate citations under the same training and criteria as the 
inspectors who write the citations.
    Finally, we must also provide appropriate training and guidelines 
to all MSHA field supervisors, including District Managers and 
Assistant District Managers, who have significant oversight 
responsibility for MSHA's enforcement program. Once trained for 
consistency, we must ensure that MSHA personnel are also managed for 
consistency.
    With consistent training of inspectors and CLRs, and supervisory 
responsibility established in this effort as well, we hope to ensure 
inspectors write meritorious citations and develop an evidentiary 
record to support their prosecution. This improved consistency will 
give MSHA and the Office of the Solicitor stronger cases to litigate, 
which over time should help reduce the number of contested cases.
Fewer Cases in the System
    Any system of reforms will have to result in fewer cases entering 
the contest system. MSHA does not believe that litigating our way out 
of this backlog is the best long-term solution. Instead, an approach 
that includes incentives to reduce the number of contested cases while 
reducing the exposure of miners to safety and health hazards is the 
best solution, and the solution that best implements the Mine Act.
    Among the most important reforms, MSHA is considering how we might 
implement operator or corporate-wide holistic settlements to reduce the 
backlog. A review of cases currently pending before the Commission 
shows that 10 corporations and the companies within their control 
account for 39% of all contested violations currently in the backlog. A 
program of corporate-wide engagement with these companies to reduce 
contested cases while improving mine safety and health could completely 
change the landscape of the contested case backlog.
    Over the years the mining industry's approach to safety and health 
has shifted. Mining operators have switched over time to a reactive 
approach, relying on MSHA inspectors to identify safety and health 
hazards, and treating citations as a cost of doing business instead of 
having comprehensive safety and health programs of their own. MSHA is 
currently considering how the implementation of comprehensive safety 
programs approved by MSHA could serve as an incentive to reduce 
contested citations, and more importantly, as a means to improve safety 
by requiring operators to focus resources on improving safety rather 
than litigating citations.
    Additionally, we could consider providing incentives for operators 
that do not contest. Operators currently receive a 10 percent reduction 
in proposed civil penalties for prompt, good faith abatement of the 
violations cited. Prior to 2007, MSHA applied a 30% reduction for 
prompt, good faith abatement. We are reviewing whether some type of 
additional financial incentive could be implemented to reduce the 
number of contested cases. MSHA will carefully review the potential 
benefits of any such approach. A critical component of any such review 
would be an analysis of the appropriate level of reduction or discount, 
whether and how such a discount would actually reduce the number of 
contested cases, the residual effects on uncontested cases of such a 
discount, and whether certain serious violations should be excluded 
from any incentive program.
Outreach
    To complement the enforcement provisions of the Mine Act, MSHA is 
working to improve stakeholder outreach and education. MSHA recently 
launched two major initiatives to curb mining deaths and solicited the 
support and cooperation of the mining industry stakeholders. One is the 
``End Black Lung--Act Now'' campaign which is aimed at ending the black 
lung disease in coal mining. The second is the fatality prevention 
program called ``Rules to Live By,'' which targets the most common 
causes of mining deaths. These initiatives have been rolled out with 
the support of the mining industry, labor organizations and other 
stakeholders. Since my confirmation, I have met with several 
stakeholders in coal and metal--non metal industries including company 
CEO's and other executives as well as a number of industry associations 
and organizations to discuss ways to improve mine safety and health and 
compliance with the Mine Act. While these indirectly impact the 
backlog, this component of communication and education with the 
industry and other stakeholders is essential to our success as an 
agency.
Possible Commission Reforms
    In addition to what I have outlined, there are several critical 
reforms that are within the purview of the Federal Mine Safety and 
Health Review Commission (Commission). For example, we endorse reforms 
that will increase the speed with which settlements are approved. Once 
a case is contested, any settlement must be approved by the Commission. 
A part of the backlog consists of cases that MSHA and the operator have 
agreed to settle, but the settlement agreement is pending before the 
Commission awaiting approval. We endorse efforts by the Commission to 
focus on settlement approvals and simplifying the process for getting a 
settlement approved. We also think consideration should be given to 
expanding the use of settlement conferences over which a judge 
presides.
    Additionally, MSHA believes the Commission should consider the use 
of simplified trial proceedings. Currently MSHA and SOL devote 
considerable resources to the pre-trial discovery process and other 
case preparation for matters which usually settle. A simplified trial 
process for certain categories of cases would have a significant impact 
on the time and resources it takes for cases to proceed to trial. The 
Department of Labor fully endorses consideration of reforms, and is 
prepared to provide technical support to the Commission in order to 
implement these reforms as quickly as possible.
    Finally, we think it would be appropriate for the Commission to 
consider whether there are procedural reforms applicable to all types 
of cases that could streamline the process and reduce the number of 
contested cases. For example, uniform disclosures by MSHA of its 
evidence in support of a citation and by an operator of its grounds and 
supporting evidence for contesting a citation could create an incentive 
for the parties to evaluate their positions early in the process.
Conclusion
    We believe that the ideas presented here can help reduce the 
current backlog issues and assist in preventing further case backlogs 
going forward. We are hopeful that our work will allow MSHA to meet its 
statutory mandates and continue an effective enforcement program that 
provides an appropriate deterrent to mine operators while assuring that 
MSHA enforcement cases are aggressively litigated. We are committed to 
taking all necessary steps to address the backlog because it is an 
obstacle to ensuring the highest level of safety for our nation's 
miners. I look forward to working with the Committee to tackle this 
critical problem and I am happy to answer your questions.
                                 ______
                                 
    Chairman Miller. Thank you.
    Ms. Jordan?

STATEMENT OF MARY LU JORDAN, CHAIRMAN, FEDERAL MINE SAFETY AND 
                    HEALTH REVIEW COMMISSION

    Mr. Chairman, Mr. Ranking Member and members of the 
committee, thank you for the opportunity to testify on the case 
backlog currently facing the Commission.
    My name is Mary Lu Jordan, and I am Chairman of the Federal 
Mine Safety and Health Review Commission.
    The Commission is an independent adjudicatory agency that 
provides trial and appellate review of the legal disputes that 
arise under the Federal Mine Safety and Health Act of 1977.
    The Commission's administrative law judges decide the cases 
at the trial level, and the five-member Commission provides the 
appellate review.
    When I became Chairman last August, I was confronted with a 
growing case load that was a dramatic departure from the trend 
that had previously existed. For example, during the 4 years 
from fiscal 2002 through 2005, the case load ranged from 
approximately 1,300 to 1,500 cases.
    In comparison, during the subsequent 4 years, from fiscal 
year 2006 through 2009, the case load climbed from 
approximately 2,700 to over 14,000 cases. Currently, there is a 
backlog of approximately 16,000.
    Comparing the new case filings during these same two 
periods is also instructive. From fiscal year 2002 to 2005, the 
annual number of new cases filed increased from about 2,100 to 
2,400.
    The figures after that paint a different picture. Case 
filings went from 3,300 new cases in fiscal year 2006 up to 
approximately 9,200 new cases in fiscal year 2009.
    The influx of new cases has led to a slower disposition. 
The vast majority of the Commission cases result in 
settlements. The settlement motions are reviewed by a judge who 
issues an order approving or disapproving the proposed 
resolution.
    The average number of days it took to dispose of these 
settlement cases increased from 178 days in fiscal 2006 to 401 
days in fiscal year 2009.
    When I became Chairman, I learned that the increase in new 
cases had created a bottleneck in case assignments. By the time 
the cases could be assigned by the chief judge, they were 
already a year old.
    With the assistance of some contract clerical help, we have 
made progress in reducing the number of cases waiting to be 
assigned. However, unclogging the assignment process meant that 
the bulge of backlogged cases would now move to the judges' 
desks.
    Judges' dockets have increased dramatically. From fiscal 
year 2004 to 2008, each judge's docket averaged 176 cases. 
Today in fiscal year 2010, the number of cases assigned to each 
judge has risen to an average of 746.
    Under our budget for fiscal year 2010, the Commission plans 
to add four new judges to our current roster of 10. We also 
plan to add four law clerks and additional clerical assistants. 
These measures will allow us to slow the rate of the growth of 
our backlog.
    The President's 2011 budget request of $13.1 million will 
allow the Commission to stop the backlog from increasing. We 
will be able to bring our total judges to 18 and plan to hire 
enough law clerks so that each judge can have the assistance of 
a clerk and share an administrative assistant.
    In addition to increased staffing, we are looking at all of 
our processes to see what we can streamline. Within the next 
few days, the Commission will publish an amendment to the 
procedural rules.
    We will require the parties to submit a draft settlement 
order when they file their motions to settle with our judges, 
and these will be required to be filed electronically.
    We are also contemplating things like a calendar call where 
judges take a bundle of cases with a particular operator, meet 
with the parties and try and resolve as many as they can.
    We are looking at whether we can simplify or even eliminate 
some of the pleadings that the parties currently file with us.
    And we are enthusiastic about looking at the possibility of 
initiating a simplified procedures process, similar to that 
used by OSHRC, wherein things like discovery and post-trial 
briefs are severely limited.
    We are keenly aware of Congress' concern that the penalty 
provisions of the Mine Act cannot operate as an effective 
deterrent if there is an unduly long period between the 
violation and the payment of the penalty.
    Indeed, the legislative history of the Mine Act that 
created the Commission emphasized that, ``to be effective and 
to induce compliance, civil penalties once proposed must be 
assessed and collected with reasonable promptness and 
efficiency.''
    Moreover, unless the case processing mechanisms operate 
efficiently, operators who dispute MSHA's interpretation of a 
standard may not know in a timely manner whether their 
practices comply with the standard or not.
    We recognize that several important enforcement provisions 
of the Mine Act depend upon a determination of an operator's 
history, and these provisions are not applicable until the 
violation becomes final, which occurs only at the completion of 
the Commission's review process. Thus, if case decisions are 
delayed, the ability of MSHA to effectively enforce the act may 
be inhibited.
    Thank you.
    [The statement of Ms. Jordan follows:]

          Prepared Statement of Hon. Mary Lu Jordan, Chairman,
            Federal Mine Safety and Health Review Commission

    Mr. Chairman, Mr. Ranking Member, and Members of the Committee: 
Thank you for the opportunity to testify on the case backlog currently 
facing the Federal Mine Safety and Health Review Commission. My name is 
Mary Lu Jordan, and I am Chairman of the Commission. On behalf of the 
Commission, I am very grateful to this Committee for its recognition of 
the increased case backlog facing our agency, and for its interest in 
identifying solutions to ensure the speedy adjudication of mine safety 
cases.
    The Federal Mine Safety and Health Review Commission is an 
independent adjudicatory agency that provides administrative trial and 
appellate review of legal disputes arising under the Federal Mine 
Safety and Health Act of 1977 (the ``Mine Act''). The majority of cases 
that come before the Commission involve civil penalties proposed by the 
Department of Labor's Mine Safety and Health Administration (``MSHA'') 
to be assessed against mine operators. The Commission is responsible 
for deciding whether the alleged violations of the Mine Act or a 
mandatory safety regulation issued by MSHA occurred, as well as the 
appropriateness of the proposed penalties. Other types of cases heard 
by the Commission include contests of MSHA orders to close a mine for 
health or safety reasons, miners' charges of discrimination based on 
their complaints regarding health or safety, and miners' requests for 
compensation after being idled by a mine closure order.
    The Commission's administrative law judges decide cases at the 
trial level. The five-member Commission provides administrative 
appellate review. Currently, we have four Commissioners. A fifth 
Commissioner has been nominated to serve by the President, and his 
nomination is pending before the Senate.
    When I became Chairman last August, I was confronted with a growing 
caseload--a dramatic departure from the steady caseload trend that 
existed during my first term as Chairman (from 1994 until 2001), and 
for the several years following when I served as a Commissioner.
    For example, during the four years from FY 2002 through FY 2005, 
the caseload ranged from approximately 1300 to 1500 cases. In 
comparison, during the subsequent four years, from FY 2006 through FY 
2009, the caseload climbed from approximately 2,700 to over 14,000 
cases. Currently, there is a backlog of approximately 16,000 cases.
    A comparison of new case filings during these same two time periods 
is also instructive. From FY 2002 to FY 2005, the annual number of 
cases filed showed only a minimal increase, going from about 2,100 to 
2,400 new cases per year. The figures after that paint a completely 
different picture, with case filings going from 3,300 new cases in FY 
2006 up to approximately 9,200 new cases in FY 2009.
    What prompted this unprecedented number of new cases? While we 
cannot answer that question with complete certainty, we believe that 
certain statutory and regulatory changes that occurred within the last 
four years have played a role in this influx of new cases.
    First, as a result of the Sago, Aracoma and Darby mine disasters in 
2006, Congress enacted the Mine Improvement and New Emergency Response 
Act of 2006 (the ``MINER Act''), which was signed into law on June 15, 
2006. The MINER Act established new and stronger civil sanctions for 
violations of the Mine Act, including minimum penalties for an 
operator's unwarrantable failure to comply with the statute or 
mandatory safety and health standards, and a new penalty for ``flagrant 
conduct'' by a mine operator.
    Second, in response to the MINER Act, MSHA in March 2007 revised 
its civil penalty regulations, which resulted in significant increases 
in the amounts of money assessed in civil penalties proposed by the 
agency. In addition, in June 2007, MSHA announced an initiative to more 
vigorously enforce the provision of the Mine Act that permits mine 
closure orders to be issued when an operator has a pattern of recurrent 
significant and substantial (``S&S'') violations at a mine. These types 
of violations generally involve more dangerous situations than other 
citations.
    While it is difficult to know with complete certainty the 
implications of these individual events on the Commission's caseload, 
we do know that the result of this influx of new cases has led to a 
slower disposition for most of our cases. The vast majority of our 
cases result in settlements. These settlements must be reviewed by a 
judge who must then issue an order approving or disapproving the 
proposed resolution. The average number of days it took to dispose of 
these cases increased from 178 days in FY 2006 to 401 days in FY 2009.
    When I became Chairman, I learned that the tremendous increase in 
new cases had created a bottleneck in the case assignment phase of our 
process. By the time cases could be assigned by the Chief Judge, they 
were already a year old. The Chief Judge and I discussed ways that the 
process could be streamlined. We realized that, as we unclogged the 
assignment process, we would need some additional clerical help to get 
the assignment orders out to the parties and to create the case files. 
We brought in temporary contractors to help the docket office 
accomplish this. Due in large part to the assistance of contract 
clerical help, we have made progress in reducing the number of cases 
waiting to be assigned to a judge.
    Unclogging the assignment phase meant that the bulge of backlogged 
cases would now move down the pipeline to the judges' desks. Judges' 
dockets have increased dramatically. From FY 2004 to FY 2008, each 
judge's docket averaged 176 cases. That number jumped to 366 cases in 
FY 2009. To date in FY 2010, the number of cases assigned to each judge 
has risen to an average of 746.
    The Commission's judges are hardworking and conscientious, and they 
are understandably concerned about the delays this increased caseload 
may cause. However, because of the number of incoming cases, some 
judges have felt the need to issue a prehearing order advising the 
parties that their case would not be set for hearing for at least a 
year.
    Under the Commission's budget for FY 2010, the Commission plans to 
add four new administrative law judges to our current roster of 10 
judges. We also plan to add four law clerks to our current staff of 
five clerks (these are law school graduates who assist the judges). We 
will also be hiring four additional clerical assistants. The Commission 
has started the competitive procurement process with GSA for additional 
space to accommodate the anticipated increase in staff for FY 2010. 
These measures will allow us to slow the rate of growth of our backlog, 
although the backlog will continue to grow throughout FY 2010. We will 
also be adopting a number of procedures that would allow the new judges 
to tackle the case backlog without significant impacting DOL or its 
Solicitor's Office, such as having current judges concentrate on 
writing decisions for hearings which have already been held and also 
having new judges focus on the backlog of settlements.
    The President's 2011 budget request of $13.105 million, 
representing a 27 percent increase, will allow the Commission to stop 
the backlog from increasing. We will be able to add four more judges, 
which will bring our total to 18. We also plan to hire nine additional 
law clerks so that each judge will have the assistance of a law clerk, 
and each judge would share an administrative assistant with another 
judge.
    But more resources are only part of the answer. In addition to 
increased staffing, we have, over the last several years, reviewed and 
are continuing to examine our entire case adjudication system to 
determine how we can streamline procedures via administrative and 
rulemaking changes. We are identifying specific points where 
unnecessary delays occur, and formulating solutions to address each of 
these problems.
    We examined our caseload and determined that approximately 20% of 
our cases involved a challenge to the underlying MSHA enforcement 
action--the issuance of a citation or order. These are commonly called 
``contest cases.'' Since an operator almost always subsequently files a 
case challenging the penalty related to that enforcement action, the 
contest case is usually subsumed into the penalty case. Consequently, 
we announced a policy in August 2007 under which the Chief 
Administrative Law Judge automatically stays each of these contest 
cases until its accompanying civil penalty is proposed by the 
Secretary. At that point, the contest case and the civil penalty case 
are consolidated and assigned to a judge. (If the operator needs an 
expedited hearing on the contest case, it can file a motion with the 
Chief Administrative Law Judge to lift the automatic stay). Because of 
our policy of staying cases, we no longer have to issue orders in the 
contest cases, which are duplicative to those filed in the parallel 
penalty proceeding.
    Because over 90% of Commission cases are ultimately settled and the 
statute requires that settlements be reviewed and approved by a judge, 
much of the Commission's resources is used to process settlement 
motions and issue orders approving settlement. Within the next few 
days, the Commission will publish an amendment to its procedural rules 
requiring the parties to submit a draft settlement order when they file 
a motion to approve settlement in most cases. The rule will require 
most of these submissions to be filed electronically. The 
implementation of this rule will reduce the amount of time that it 
takes for the Commission to dispose of settlement motions and provide 
the Commission with valuable experience in its move towards an 
electronic filing system.
    We are also contemplating a ``calendar call'' system, wherein one 
judge is assigned numerous cases from the same operator, and meets with 
the parties with a goal of settling as many cases as possible, if 
appropriate. This system was used successfully by a former Commission 
Chief Judge many years ago, and we believe the time may be ripe to 
reinstate this program.
    Revisions to our procedural rules have also been discussed with an 
eye towards streamlining the adjudication process and eliminating 
unnecessary filings. We are investigating whether we should eliminate 
the requirement that an operator file an answer to the formal penalty 
petition, which the Secretary files with the Commission. We will need 
to weigh the potential for streamlining the processing of cases against 
the potential for encouraging more cases to enter the system. We are 
also exploring ways to simplify or even eliminate the penalty petition 
that the Secretary files with the Commission.
    We are enthusiastic about initiating a ``simplified procedures'' 
process similar to the one in effect at the Occupational Safety and 
Health Review Commission. In cases placed on this track, which would be 
the simpler cases the Commission receives, discovery and post-trial 
briefs could be severely limited, and interlocutory review might be 
abolished. We have begun the research and discussion necessary to 
embark on a rulemaking regarding such a system.
    Additionally, we are considering changes to our procedures for 
those cases which will not be placed on the ``simplified procedures'' 
track. These changes would be partially based on the Federal Rules of 
Civil Procedure. They could include such things as utilizing uniform 
Pre-Hearing Orders, requiring parties to make initial disclosures of 
basic information early in the litigation process, and standardizing 
pre-trial conferences with the judge. We are also focusing on 
procedural changes that would not require DOL or mine operators to 
expend significant additional resources.
    In FY 2008, the Commission upgraded to a new electronic case 
tracking system, which provides the Commission the ability to track the 
various stages of each case that it receives. Another potential project 
involves the electronic filing of cases and case documents. The 
Commission is currently reviewing requirements for the electronic 
filing process to determine the best approach for implementing such a 
system.
    We will continue to explore modifications to our procedural rules 
and case management procedures that might enable cases to move more 
quickly through the Commission. We are committed to examining any and 
all ideas that can assist in adjudicating cases more quickly.
    We are keenly aware of Congress' concern that the penalty 
provisions of the Mine Act cannot operate as an effective deterrent if 
there is an unduly long period of time between the violation and the 
payment of a penalty. Indeed, the legislative history of the Mine Act 
emphasizes that ``[t]o be effective and to induce compliance, civil 
penalties, once proposed, must be assessed and collected with 
reasonable promptness and efficiency.'' S. Rep. No. 95-181, at 43 
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 
Legislative History of the Federal Mine Safety and Health Act of 1977, 
at 631 (1978).
    Moreover, Congress intended that the case processing mechanism 
operate efficiently so that operators who dispute MSHA's interpretation 
of a standard may obtain a speedy resolution. With a large and growing 
backlog of cases at the Commission, operators often do not know in a 
timely manner whether their practices comply with mandatory safety 
standards or violate them.
    We recognize that several important enforcement provisions of the 
Mine Act depend upon a determination of an operator's history of 
violations. These include the amount of the penalty, and possible 
withdrawal orders for a pattern of violations that could significantly 
and substantially contribute to a safety or health hazard. These 
provisions are not applicable until a violation becomes ``final,'' 
which occurs only at the completion of the Commission's review process. 
Thus, if case decisions are delayed, the ability of MSHA to effectively 
enforce the Act may be inhibited.
    Over the years this Committee has played a key role in ensuring 
miner safety. I look forward to working with you to remedy this 
problem, and thank you once again for this opportunity to testify on 
this issue.
                                 ______
                                 
    Chairman Miller. President Roberts, welcome.

             STATEMENT OF CECIL ROBERTS, PRESIDENT,
                 UNITED MINE WORKERS OF AMERICA

    Mr. Roberts. Well, thank you very much, once again, for 
having the opportunity to appear before this committee.
    Obviously, you know, it is a much better atmosphere today 
than it was in 2006, and I wanted to commend this committee for 
the actions that were taken in 2006 in the face of those 
terrible disasters at Sago and Aracoma, at Darby, and in the 
face of many widows and orphans coming here to testify in a 
very volatile situation.
    UMWA argued at that time that good laws, enforcement of 
those laws, fines for violating the laws, and more inspectors 
would drop the number of fatalities in the nation's coal mines. 
I want to point out a couple of things, if I may.
    In 2006, when we were all here trying to determine what to 
do about the tragedies that were occurring, $35 million in 
penalties were assessed, and we had 47 coal miners die in the 
nation's coal mines that year.
    In 2009, we had $141 million in penalties assessed, four 
times higher, and we had the lowest number of fatalities in 
2009 in the history of coal mining in the United States of 
America.
    That is not something that just happened. It was because of 
the actions that Congress took, looking at these fatalities and 
making a determination that the government should be a full 
partner in mine health and safety.
    That is not the first time that has happened. If you go 
back to the original 1969 Coal Mine Health and Safety Act, the 
25 years preceding that act, 12,000 coal miners died in the 
nation's coal mines--in the 25 years after the passage of that 
act, fewer than 3,000.
    So I report to the committee that I don't think there is 
any doubt that strong laws and enforcement of those laws 
protect the coal miners of the United States, which was the 
goal of this committee when we came together in 2006 in a very 
bipartisan way, and also in 1969 when Congress initially acted 
and then followed up in 1977.
    So we have higher fines, and we have enforcement, and let 
me take a moment, if I might, to commend Undersecretary Main 
for the job that he has done and Chairman Jordan for the job 
that she has done in their capacity of trying to protect the 
coal miners in the United States.
    And let's, first of all, understand that is our first 
obligation, from my perspective here. When we look at the 
number of cases and we talk about well, how do we deal with all 
these cases, which is something very appropriate, also our goal 
should be well, how do we protect the coal miners first. That 
is who we should put out front.
    And it is true that when penalties are assessed whenever 
violations are found, the operator is required to abate those 
violations. But understand, Congress' intent here when you 
wrote the 2006 law was to make sure those operators who 
continued to violate the law were dealt with.
    And if you have an operator at a particular mine or a 
series of mines who continues to violate the law, Congress 
wrote into the act a way to deal with that, and that is you 
look at the history of that particular operator, and then that 
operator may face a more serious challenge here when there is a 
pattern of violations imposed on that particular operator.
    And you can take any particular situation where--that has 
led to tragedy in the United States of America--any of those 
tragedies in 2006 that we talked about at length, perhaps the 
Crandall Canyon situation we talked about here at length in 
2007--and there were a series of violations that should have 
been dealt with or could have been dealt with.
    What has happened here is the system has been clogged to a 
certain degree here, where the pattern of violations is not 
really in the law when the system doesn't work.
    The pattern of violations was placed in here so that if a 
particular operator, a particular mine, was continually 
violating the law, there was a process for MSHA to identify 
that and MSHA to act to make sure that operator complied with 
the law. And it works.
    Whenever any operator has been--as certain operators have 
been placed on a pattern of violations, we have seen those 
operators correct the situation.
    There is a way to remedy all of this: not have any 
violations. And I know that is probably impossible, but there 
are some operators in the United States of America--let me 
commend the industry, too, while I am at it, and that probably 
is a little unusual for me in my capacity, but the industry has 
spent enormous sums of money to comply with the 2006 act.
    But we still have certain mines and we still have certain 
operators who need a more stringent enforcement mechanism 
applied, and that is why when you clog up the system with all 
of these violations and appealing all of these cases--let's 
understand something. There are some operators appealing 91 
percent of every penalty assessed them.
    Does anyone in this room today, whether sitting on this 
panel or up on the front here, or behind me, believe that all 
91 percent of those are legitimate? Of course they are not.
    So why are they doing this? Because they do not want to 
eventually have a history or a pattern here established so that 
MSHA will come down more harshly with them and make them comply 
with the laws.
    Thank you.
    [The statement of Mr. Roberts follows:]

           Prepared Statement of Cecil E. Roberts, President,
                     United Mine Workers of America

    Thank you for this opportunity to appear before your Committee. As 
President of the United Mine Workers of America (``UMWA''), I represent 
the union that has been an unwavering advocate for miners' health and 
safety for 120 years.
    This 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 and enhance 
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 each and every day.
    Today we are focusing on the difficulties confronting the Federal 
Mine Health and Safety Review Commission and the serious backlog of 
cases before the Commission. Neither the increased caseload, nor the 
Commission's growing backlog, shows any signs of abating. In fact, 
unless immediate and significant remedial action is taken to address 
this problem, the Commission's backlog will render meaningless many of 
the reforms Congress clearly intended to address with its passage of 
the MINER Act. This is because the higher penalty structure was 
intended to make penalties more meaningful, not just a cost of doing 
business.
    So what do we do to correct this problem? If Congress wants to 
realize the full benefits that it intended with the enhanced penalty 
structure in the 2006 MINER Act, then the system must be re-aligned so 
that operators are not rewarded for routinely contesting citations and 
penalties, and the Commission must be adequately funded so that it can 
handle its caseload on a timely basis.
    Since passage of the 2006 MINER Act, and the modified penalty 
structure it imposed for violations of Mine Health and Safety laws, the 
penalties MSHA assesses has increased significantly. Indeed, for 2006, 
MSHA assessed about $35 million in penalties, while for 2009 assessed 
penalties rose to about $141 million.
    At the same time that the amount of assessed penalties increased, 
so did both the number and the rate of contested cases. Most of the 
increase is attributable to the coal industry, as opposed to metal/non-
metal: for each of the five years immediately before the MINER Act 
(2000-2005), only 5-7% of coal mine civil penalties lead to cases being 
contested before the Commission, whereas for the last three years 
(2007-2009), the rate has dramatically increased to 18%, 30% and 31%, 
respectively. While an increase in contested cases was anticipated 
based on the MSHA's improved enforcement and the higher penalty 
structure the MINER Act required, the scale of that increase exceeded 
those expectations.
    The Union and coal miners hailed the passage of the MINER Act as 
the dawn of a new day to improving coal mine health and safety. 
However, those increased protections are being subverted by the huge 
contested rate that has overwhelmed the government's ability to deal 
with its caseload, and MSHA's practice of reducing assessments when 
operators contest them. While operators are entitled to their due 
process, we cannot accept the status quo whereby some operators 
continue to abuse the system such that the government is not able to 
effectively carry out the directives of the MINER Act. As it stands, 
miners' health and safety is adversely affected by the operators' high 
contested rates and the related backlog of cases at the Commission.
    The existing system rewards operators that file contests. While 
this is not a new development, with the new and higher penalty 
structure, operators have increasingly availed themselves of the 
contest procedure as a means of reducing the costs attributable to 
their mine health and safety violations. This happens in many ways. One 
example is that when contested citations are tied up in the Commission 
backlog, there is delay to the enhanced penalties that are supposed to 
apply for repeat violations. While the intent was to motivate operators 
to NOT have repeat violations, instead they are able to avoid the 
higher penalties by delaying a final order that would show the repeat 
violation. Likewise, this Administration's willingness to utilize--for 
the first time--MSHA's powerful ``pattern of violations'' enforcement 
tool becomes frustrated when citations are caught up in the 
Commission's backlog. MSHA's determination that a mine has a ``pattern 
of violations'' carries much more serious consequences, and a mine must 
have an inspection free of S & S (significant and substantial) 
violations in order to get off of the ``pattern.'' Again, having delay 
in the resolution of alleged violations diminishes MSHA's ability to 
use the full panoply of its enforcement tools. You must also recognize 
that many of these violations are quite serious--the kind of violations 
that have contributed to mine fires, explosions and the deaths of coal 
miners.
    If MSHA would identify mines that might be subjected to higher 
penalties for repeat violations or for a ``pattern,'' and the 
Commission would move these cases more quickly through a priority 
system, some of these incentives would be reduced. This, we would 
encourage.
    Another problem is that when operators challenge MSHA citations and 
proposed penalty assessments, they routinely get their penalties 
reduced. This can occur at the MSHA ``conference,'' as well as once a 
case is referred to litigation. And it's not because the citations were 
not valid in the first place, as some operators claim. Instead, the 
reductions generally occur because the mine inspector who issued the 
citation rarely can attend the conference to explain the reason for the 
citations, leaving the conferencing officer with no first-hand 
knowledge of the conditions cited. The operators, on the other hand, 
regularly send their representatives to conferences to dispute the 
validity and gravity of the citations that were issued. As a result, 
conferencing officers frequently reduce or abate citations. That the 
underlying citations are generally valid is supported by trial results: 
for penalties related to S & S and unwarrantable failure citations--the 
two most common categories--that were litigated before a Commission ALJ 
in FY 2009, only 4-11% were dismissed or withdrawn.
    If MSHA will re-instate the conference system it previously 
utilized, as we understand it is considering, we would encourage it to 
provide a better means for the inspectors to be able to support their 
citations, preferably with the inspector participating, too. We think 
it would also be helpful if an attorney from the Solicitor's Office 
would be assigned to work with conferencing officers to help them 
identify the litigation strengths and weaknesses before any adjustments 
would be made. Finally, to the extent there are agreements made at the 
conference level, it would be essential that any matters resolved at 
conference then be deemed fully and finally resolved. Settlement 
motions should be jointly submitted to the ALJs, instead of just by the 
Solicitor's office.
    For cases not resolved at conference, penalties have often been 
further reduced: not only will the Solicitor's office offer to reduce 
the penalties in order to settle, but the Commission ALJs frequently 
reduce the proposed penalties. It is extraordinarily rare for an MSHA 
attorney to seek, or a Commission Judge to impose, penalties higher 
than MSHA's Office of Assessments initially recommend. Yet there is no 
reason why this shouldn't also occur when the facts support a higher 
assessment. This should happen when, for example, it turns out that 
more miners were actually exposed to the hazard, or the gravity was 
higher than the inspector initially indicated on the citation.
    We have previously expressed concerns about the ability of mine 
operators to abuse the conference system, and our concerns about 
operator abuse have been validated insofar as the data shows that many 
operators request a conference for virtually every citation MSHA 
issues. And why shouldn't they? There is nothing to defer or penalize 
operators for doing so. In fact, internal company documents the Senate 
HELP Committee obtained during its investigation into the Crandall 
Canyon disaster established that Murray Energy purposely pursued such a 
strategy. From the contested rates of other operators, we believe that 
other companies are employing this same tactic, too. Accordingly, we 
supported MSHA's decision in early 2008 to stop routinely conferencing 
citations until after it assesses the penalty. Even without regular 
pre-penalty conferences, just some operators' action of routinely 
contesting citations and penalties constitutes the largest portion of 
the Commission's backlog.
    As of August 2009, there were 688 penalty contests that have been 
pending for at least three (3) years, 877 penalty contests pending for 
between two (2) and three (3) years, 19,864 penalty contests pending 
for one (1) to two (2) years, and 42,122 that were filed within one 
year.
    The Commission backlog has increased rapidly over the last few 
years. As the Commission's 2007-2012 Strategic Plan noted: the 
legislative and regulatory changes of the MINER Act were expected to 
increase the Commission's caseload. When that Strategic Plan was 
prepared, the Commission had already experienced a ``dramatic rise in 
the number of contest cases, * * * and expect[ed] that its workload 
will increase significantly from prior years, thus making it more 
challenging to attain the Commission's goal of timely adjudication.'' 
Regrettably, although the increased caseload was both expected and 
realized, until this year the Commission did not attempt to increase 
its cadre of ALJs to handle its growing workload. While the Commission 
has had certain time-lines for processing its cases, those no longer 
bear any relationship to reality. However, getting timely resolution of 
these disputes is critical to miners' health and safety. One possible 
tool would be to adopt procedures like the OSHA Review Commission's 
``Simplified Proceedings;'' we support having the Commission determine 
whether using such procedures would be appropriate for mine safety 
cases.
    To address the immediate problem, many more Administrative Law 
Judges will be needed, along with support staff to maximize their 
efficiency. We are pleased that the FY10 budget included funding for 4 
more ALJs, and that the President's FY 11 budget seeks funding for 18 
ALJs. However, we firmly believe that still more will be needed to 
arrest and reverse the problem. Thus, we would recommend that the 
additional ALJs (and staff) be brought on as soon as possible B through 
a supplemental authorization B so the problem doesn't get much worse 
and completely out of hand.
    Finally, with the increased rate of contested cases, MSHA also 
faces new challenges: it will need additional staff to prepare and 
defend its cases, both at conferences and at administrative hearings.
    We applaud the significantly reduced rate of fatal accidents in the 
mining industry that distinguished 2009 from other recent years, as 
well as our more distant mining history. We also support the Obama 
administration's MSHA that is focusing on enhancing enforcement to 
reduce the accident rate even further. We now urge you to work with us 
to ensure that the enhanced penalty structure Congress provided in the 
MINER Act of 2006 is not frustrated, but utilized to further improve 
miners' health and safety.
    Thank you for allowing us to address this important issue, and for 
your continued commitment to miners' health and safety.
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Watzman?

     STATEMENT OF BRUCE WATZMAN, SENIOR VICE PRESIDENT FOR 
        REGULATORY AFFAIRS, NATIONAL MINING ASSOCIATION

    Mr. Watzman. Thank you, Mr. Chairman and members of the 
committee, for the opportunity to appear today.
    Before turning to the specific topic of the hearing, we 
thought it would be appropriate to discuss the progress the 
industry continues to make to achieve the goal that all of us 
share, and that is eliminating accidents and injuries in this 
industry and what gave rise to the MINER Act that we all 
supported.
    In the last 4 years the industry has embarked on an 
aggressive, multifaceted program to foster continued 
improvement and excellence in mine safety and health 
performance. We continue to see the benefits of those efforts 
with 2009 being the safest year in the history of mining.
    Additionally and importantly, 85 percent of U.S. mines 
operated the entire year without a single lost-time accident. 
We continue to make progress, but more must be done and we 
recognize that.
    We are working with companies to foster the implementation 
of risk management processes, and we have launched a risk-based 
safety awareness campaign targeting known hazards.
    We initially focused attention on selected areas of 
mining--operations with the highest accident rates--and then 
built voluntary awareness programs around them.
    The effort began last year with three separate safety 
awareness programs highlighting the importance of staying 
alert, the dangers of moving machinery and the hazards of 
unsafe driving on mine property. The program featured a variety 
of tools that were shared and disseminated throughout the 
entire mining industry.
    Going forward, we envision a larger effort to ensure that 
best practices and procedures and information on promising 
technologies and techniques for reducing accidents on the job 
are disseminated throughout the industry.
    Mr. Chairman, as reflected in the scheduling of this 
hearing, the rate at which operators have been formally 
contesting enforcement actions continues to garner increased 
attention and scrutiny.
    Some believe this reflects an attempt by operators to 
backlog the system and delay the payment of civil penalties. 
Still others maintain that this is an expected outcome of the 
changes that MSHA has implemented since 2006, changes that 
dramatically altered the enforcement landscape.
    While honest people can disagree as to what gave rise to 
this, there is one fact that is not in dispute. These actions 
do not jeopardize miner safety and health.
    Upon issuance of a citation, the Mine Act requires the 
operator to abate the violation that gave rise to--abate the 
condition that gave rise to the violation. This requirement is 
separate and distinct from the operator's decision to challenge 
the validity of the citation.
    Importantly, from the perspective of miners' safety and 
health, the conditions that gave rise to the issuance of the 
citation have been corrected long before the operator is given 
his day in court and in spite of the outcome of the litigation.
    We believe the clear policy decisions made by the previous 
Assistant Secretary for MSHA are the major contributors to the 
dramatic increase in the Commission's case load.
    These administrative actions created an irrational process 
which increased the number of citations at the same time it 
eliminated the informal process for conferencing them, forcing 
operators into a time-consuming, expensive adjudicatory process 
that does nothing to increase miner safety.
    Appended to our testimony is a time line that documents the 
increase in safety contests and overlays MSHA's policy actions, 
and we think that there is a clear relationship between the 
two.
    Our written submittal details the actions that MSHA took 
and how these have impacted operator rights in the decision-
making process. We all recognize that there are steps that can 
be taken to improve the conditions that gave rise to the 
backlog and these can be administered and implemented 
administratively without the need for legislation.
    Many mirror the steps that were outlined in the Assistant 
Secretary's testimony this morning, and we should move 
expeditiously to see that they are implemented to address this 
situation as quickly as possible.
    Thank you, Mr. Chairman.
    [The statement of Mr. Watzman follows:]

      Prepared Statement of Bruce Watzman, Senior Vice President,
    Regulatory Affairs, on Behalf of the National Mining Association

    Mr. Chairman, members of the Committee, I am Bruce Watzman, Sr. 
Vice President, Regulatory Affairs for the National Mining Association 
(NMA). Thank you for providing us this opportunity to share our 
thoughts regarding the Mine Safety and Health Administration (MSHA) and 
Federal Mine Safety and Health Review Commission (Commission) citation 
and assessment process. Before turning to the specific topic for this 
hearing, we thought it would be appropriate to discuss the progress the 
industry continues to make to achieve the goal that all of us share--
eliminating accidents and illness in the industry.
    In the last four years the industry has embarked on an aggressive, 
multi-faceted program to foster continued improvement and excellence in 
mine safety and health performance. We continue to see the benefit of 
these efforts as American mines operated all of 2009 with fewer 
fatalities than ever before. Perhaps significantly, 2009 was the second 
consecutive year of record mine safety performance, besting the 
previous record set in 2008. Additionally, 86 percent of U.S. mines 
operated the entire year without a single lost-time accident. This is 
an important indicator as fewer serious injuries typically lead to 
fewer fatalities. We continue to make progress, but recognize that 
continuous improvement is the only acceptable goal for an industry 
dedicated to excellence and to the health and safety of every worker it 
employs.
    Some are already asking what brought about this improvement, and 
how do we continue this trend. Some point to the agency's more rigorous 
enforcement, but most agree that citations alone cannot instill a 
safety culture that makes accident prevention a top priority throughout 
mining. Others point to enactment of the MINER Act but that action, 
while important, dealt largely with post-accident requirements, not 
with measures to prevent accidents.
    We believe the more convincing explanation for improved mine safety 
lies closer to home. It began with the mining community's thoughtful 
review and response to the very visible tragedies in 2006 that resulted 
in multiple fatalities. No longer did industry leaders believe that 
business-as-usual safety practices would bring every miner home safely 
after every day. Rather, they concluded that we needed to add to our 
previous safety and accident prevention process with new thinking about 
safety, as well as an even stronger commitment to safety. This began 
early in 2006 with the creation of the independent Mine Safety 
Technology and Training Commission, which was designed to study mine 
safety practices both here and abroad. The Commission concluded that a 
new safety paradigm was necessary--one based on better risk management. 
The model was simple: identify the high-risk areas of each mine, and 
then allocate safety resources and training based on those risks.
    Building on the Commission's recommendations, we've worked with 
companies to foster the implementation of risk management processes, 
and we've launched a risk-based safety awareness campaign targeting 
known hazards. We initially focused attention on selected areas of 
mining operations with the highest accident rates, and then built 
voluntary awareness programs around each one. The effort began last 
year with three separate safety awareness programs highlighting the 
importance of staying alert, the dangers of moving machinery and the 
hazards of unsafe driving. The program features a variety of tools to 
build awareness of each high-risk area. Interestingly, these match some 
of Assistant Secretary Main's concerns in his recently announced 
``Rules to Live By'' initiative.
    Going forward we envision a larger effort to ensure that best 
practices and procedures and information on promising techniques and 
technologies for reducing accidents on the job are shared throughout 
mining. For example, we're exploring how to catalogue and share the 
programs and procedures employed by the winners of the annual Sentinels 
of Safety awards--the oldest known occupational safety award 
competition, jointly sponsored by MSHA and NMA.
Enforcement Policies and Assessments
    Mr. Chairman, as reflected in the scheduling of this hearing, the 
rate at which mine operators have been formally contesting enforcement 
actions, including citations and withdrawal orders issued by MSHA has 
and continues to garner increased scrutiny. Some believe this higher 
rate reflects an attempt by some operators to backlog the adjudicatory 
system and delay the payment of civil penalties. Still, others maintain 
this is an expected outcome of the changes MSHA has implemented since 
2006--changes that have dramatically altered the enforcement landscape. 
While honest and reasonable people can disagree as to the underlying 
cause for this, one fact that is not in dispute is that these actions 
in no way jeopardize miner safety and health.
    Section 104(a) of the Federal Mine Safety and Health Act of 1977 
requires the Secretary to issue a citation to an operator when he or 
his authorized representative ``believes that an operator * * * has 
violated this Act, or any mandatory health or safety standard * * *'' 
More importantly, the section requires the inspector to ``fix a 
reasonable time for the abatement of the violation,'' and Section 
104(b) requires the inspector to issue a closure order if the operator 
fails to abate an alleged violation within the time set by the 
inspector. This requirement is distinct from an operator's decision to 
challenge the validity of the citation, and any challenge in no way 
relieves the operator's obligation to abate the condition that gave 
rise to the citation. Importantly, from the perspective of miner safety 
and health, the conditions that gave rise to issuance of the citation 
have been corrected long before the operator is given his day in court 
and in spite of the outcome from the litigation. A mine operator's duty 
to abate alleged violation, before legal review of the validity of the 
citation, stands in stark contrast with the suspension of that duty for 
all other employers who are covered by the Occupational Safety and 
Health Act and given a day-in-court before contested violations are 
abated.
    As you are well aware, the number of enforcement actions issued to 
mine operators by MSHA has risen significantly, and the penalties for 
violations have as well. The regulations upon which inspectors base 
enforcement actions are predominately comprised of performance based 
standards. These standards are interpreted using ``a reasonably prudent 
person standard.'' As a result, the interpretation of the standards is 
based on individual circumstances and can vary from inspector to 
inspector. The interpretation may also vary the between inspector and 
operator based on the facts peculiar to the alleged infraction. The 
penalty amounts assessed are not only based on the exercise of the 
inspector's enforcement discretion in alleging a violation of a 
standard, but also on the inspector's conclusions with respect to a 
number of other factors (all of which are discretionary based his or 
her interpretation of the circumstances surrounding an alleged 
violation). These factors can have a profound impact on penalty 
amounts, and include likelihood of occurrence, severity of injury, 
degree of negligence, and the, number of persons affected by the 
allegations, to mention only a few of the penalty calculation factors. 
(See Items 10 and 11 on the Mine Citation/Order form, Attachment 1).
    Beyond the interpretive differences that may exist between and 
operator and inspector, we believe that clear policy choices made by 
the previous Assistant Secretary for MSHA are the major contributors to 
the dramatic increase in the Commission's caseload. These 
administrative actions created an irrational process which increased 
the number of citations at the same time it eliminated an informal 
procedure for contesting them, forcing operators into a time-consuming, 
expensive adjudicatory process that does nothing to increase mine 
safety. The actions leading to this are detailed on the timeline 
attached to this statement (Attachment 2). In sum these are:
     The new Part 100 civil penalty rules (See attachments 3&4 
which illustrate the magnitude of these changes);
     Failure to maintain an effective ``close-out'' conference 
at the end of each inspection day;
     The loss of an effective safety and health conference 
process;
     The loss of an independent conference decision process;
     Timing and grouping of proposed assessments; and
     MSHA's heightened Pattern of Violation criteria and focus.
I. History of Enforcement Actions (The Initial System)
    Mine Safety and Health Administration regulations in 30 C.F.R. Part 
100.6 provide for an informal resolution of questions regarding 
enforcement actions. This history timeline begins with the adoption of 
the Alternative Case Resolution Initiative (ACRI).
    In 1994, during the Clinton Administration, ACRI was developed with 
MHSA and the Office of the Solicitor joining together and designating 
Conference/Litigation Representatives (CLR). The CLR was an inspector 
trained by the Solicitor to handle the informal conferences that the 
District Manager was required to conduct. (As a practical matter, the 
previous conferences were usually conducted by a field supervisor, who 
represented the District Manager.) By 2001, the CLRs were handling all 
the safety and health conferences and about 35 percent of the total 
number of cases that operators contested (the Solicitor placed limits 
on what type of cases the CLRs could handle). An MSHA Fact Sheet (95-9) 
has the following quote:
    Mine operators may also seek informal conferences following the 
issuance of the citation or order under 30 C.F.R. Part 100.6. The CLRs 
in Coal Districts and Supervisory Mine Inspectors in Metal/Nonmetal 
Districts primarily serve on behalf of the District Manager and meet 
with the operator to attempt an informal resolution of the dispute 
before a civil penalty is assessed.
    This widely recognized and highly commended program is one of the 
few times that non-lawyers have represented a Cabinet-level official in 
a legal proceeding. As of Aug. 30, 2001, MSHA has trained over 100 
enforcement personnel to act as CLRs for the ACRI program and there are 
CLRs designated in each MSHA district office. The CLRs are currently 
responsible for processing approximately 35 percent of the total number 
of cases contested by mine operators.
    MSHA and the mining community are reaping the benefits of the ACRI 
program. The CLRs efforts have reduced formal litigation, improved 
relations between MSHA and the mining community, improved 
communications between MSHA's inspectors and the legal community, and 
has permitted the dedication of legal resources to more complex and 
serious cases. (Emphasis added)
    As noted, this system worked reasonably well. Some key points as to 
why the conferences seemed to work include:
    1. The request for a safety and health conference had to be made 
within a 10-day period.
    2. Most CLRs did not require the operator to list in writing the 
arguments to be presented at the conference.
    3. Non-Significant & Substantial (non-serious) violations were 
assessed at a set dollar value regardless of the inspector evaluation. 
Few non-S & S violations ever went to conference and very few ever were 
entered in the ALJ system.
    4. In many instances the CLRs were used by the District Managers as 
``instructors of the law'' so that changes in evaluations were passed 
through the MSHA system as a teaching tool to reduce improper 
enforcement. Conversely, the same applied to operators who learned why 
a violation was appropriately evaluated in a certain manner and how its 
impact on safety could be used to train employees on preventative 
actions * * *
    5. The CLR made decisions based on the facts of the case presented 
at the safety and health conference.
    Unfortunately, despite these positive attributes, this system was 
abandoned in favor of one that has fostered the outcomes that gave rise 
to this hearing.
II. The Interim System
    Beginning early in the last decade, MSHA embarked on a ``new 
hiring'' process to replace retiring inspectors. This, combined with 
decisions made in response to criticism of the agency's failure to meet 
its statutory obligations, resulted in the issuance of countless 
enforcement actions of questionable validity. In sum the agency 
initiated several actions that, when viewed in total, wrecked the 
previous safety and health conference system and gave rise to the 
situation we find ourselves in today. The following timeline of 
administrative actions shows the evolution of today's flawed system:
            Oct. 26, 2006
     MSHA publishes the standard that is intended to be used 
for determining flagrant violations. (PIL I06-III-04 now released as 
PIL I08-III-02) Repeat history is defined as the third allegation of 
unwarrantable failure of the same standard in 15 months.
            April 27, 2007
     The new Part 100 civil penalty regulations are released. 
Assessments for violation are dramatically increased. In addition the 
single price penalty for non-serious, non-S&S violations is dropped. 
(Attachments 2 and 3 document the significance of these changes for 
hypothetical, but routinely issued violations, under the old and new 
penalty formulas).
            June 14, 2007
     MSHA issues its first list of Pattern of Violation (POV) 
mines. Two of the many selection requirements are: two elevated 
enforcement actions and 10 (surface) or 20 (underground) S &S 
violations in a 24-month period.
     Note that on Dec. 7, 2007; June 17, 2008; March 16 2009; 
and Oct. 7, 2009, additional lists of mines that were categorized as 
potential POV mines were released.
            Oct. 4, 2007
     MSHA announces the ``100 percent'' plan for meeting 
mandatory inspection requirements. CLRs, who were already postponing 
citation conferences, were now assigned to inspections.
            Feb. 4, 2008
     MSHA issues PIL I08-III-1. This PIL essentially formalizes 
the end to manager's conferences. Informally, prior to this date, and 
for most of 2007, conferences were not being scheduled. After this 
date, all the previously requested but unscheduled conferences were 
placed in the administrative system.
III. Other Informational Dates
     During the time the system for conferencing violation was 
being abandoned by MSHA the following actions were occurring in the 
field:
            2005-2008
     Enforcement Actions 69,072 174,473
     Assessed penalties $15.4 $194.3m
     Elevated enforcement actions 1905 6081
    In sum, the amount of enforcement time at the mines increased, 
resulting in more violations at the same time MSHA dropped its 
conferencing system.
    So, at the same time that the agency increased enforcement it 
initiated and published its ``Pattern of Violation'' evaluations, 
essentially terminated the informal conferencing system, transferring 
all outstanding conference requests to the Commission and forcing 
operators to follow one new path forward--a formal hearing with the 
Commission for all newly written enforcement actions.
    Essentially, the agency abandoned its 30-year history of seeking 
early, informal discussion and resolution of enforcement actions at a 
time when penalties and enforcement severity was increasing.
IV. Present System
    On March 27, 2009, MSHA published a new model for conferences. 
Rather than conducting an informal conference prior to receiving an 
assessment and filing with the Commission, the new system requires the 
operator to wait until an assessment is received and file after the 
enforcement action in question is docketed. Now all conferences will 
take place only after civil penalties are proposed and timely 
contested. This means that an operator eager to avoid litigation 
through the conference process must contest the citation, file a 
written request for a conference within 10 days, wait for a period of 
at least four to six weeks, receive the proposed penalty assessment, 
contest the penalty within 30 days of receipt and then have a 
conference within 90-days, unless an extension is requested (usually by 
MSHA).
    In short, all of the enforcement actions that in the previous 
conference system would not have reached the Commission are now 
included as part of the total number of docketed enforcement actions 
and each such case will remain on the list of contested cases until 
resolved. The delay created by MSHA's changes to the contest system 
increases the number of cases that are being challenged through the ALJ 
system, and it's likely that this number will continue to increase.
    The system also creates other bottlenecks that need to be 
addressed:
     The new system requires the operator to wait for the 
assessment and to formally contest those violations with which he 
disagrees. The Solicitor is then required to respond, and the operator 
may then be required to formally respond (generally through attorneys). 
In some districts, the CLR routinely asks for a 90-day stay so that an 
attempt to settle the case can be made, as is contemplated in the new 
conference system.
     All of the enhanced conferences require some type of legal 
paperwork to the Commission to finalize whatever agreement is reached. 
Again, the more informal pre-assessment system did not include this 
requirement. Clearly the informal system allowed for a more nimble 
system where the operator and CLR could resolve a larger amount of 
cases without burdening the Commission.
     The requirement to contest a citation(s) within 30 days of 
receipt of the penalty often results in operators' challenging all of 
the enforcement actions issued by an inspector within a docket due to 
the sheer volume and the limited time available to examine the 
allegations underlying each enforcement action and the components that 
affect penalty assessments.
Conclusion
    The conditions that gave rise to the ``back-log'' necessitating 
this hearing can be fixed administratively without legislation. 
However, doing so requires all parties to recognize that:
     All conditions affecting mine safety are abated by the 
operator within the time set by the inspector and prior to adjudication 
of the dispute.
     The convergence of increased enforcement actions, coupled 
with the unofficial and then official cessation of safety and health 
manager's conferences, set in motion a significant increase in 
litigated cases. Unfortunately, operators today have no option but the 
Commission for contesting enforcement actions. That was the unfortunate 
but inevitable result of a policy decision made by MSHA to enable CLRs 
to assist in fulfilling the prior Assistant Secretary's ``100 percent'' 
inspection plan.
     During the time conferences were unavailable (February 
2008 to March 2009) MSHA issued a policy on flagrant violation 
standards, four patterns of violation cycle letters and a new penalty 
system under Part 100. Also, we believe an evaluation of violation in 
many districts would show a pattern of increased gravity that 
subsequently increased the penalties to a point where a challenge was 
necessary. Filing for a formal hearing using attorneys and cluttering 
the ``Commission'' system is the only avenue available for an operator.
Changes Should be Made in the System
    The following are suggested changes that would help unlock the 
logjam at the ``Commission'':
     MSHA should improve the training of inspectors and 
enforcement authorities for recognizing and evaluating a violation. The 
number of enforcement actions being modified is a clear indication that 
inspectors are not being properly trained or supervised on how to 
evaluate a citation.
    While we have not seen 2009 end-of-year data, we are aware that 
information provided to the Committee illustrates that through June 
2009 a significant percent of enforcement actions and their 
accompanying assessments were being reduced via the settlement process. 
This indicates to us the need for better training and supervision of 
the inspectorate.
    Putting this into perspective, if police in your Congressional 
districts were writing traffic citations that were incorrectly 
evaluated at a fairly significant rate you would likely be question the 
training for these officers and stress the need to correct the system. 
You would not be questioning why your constituents were requesting 
hearings in traffic court. The industry situation is much the same. 
MSHA is not using the changes in evaluations as a teaching tool for 
inspectors. Frustratingly, operators are forced to re-contest many of 
the same factual situations that were originally cited or evaluated 
incorrectly and after challenge by the operator at great time and 
expense. Unfortunately, operators often endure a costly and time-
consuming adjudication process only to be re-cited or misevaluated 
again.
     Revert to the informal conference (pre-assessment). This 
conference was timelier and, because it was informal generated minimal 
paperwork compared to the more time-consuming, formal system in place 
today. Unfortunately, many current cases are now handed to counsel due 
to the requirement for a timely response to a ``Commission'' deadline.
     Provide the CLRs autonomy from the managers in their 
district. We have long advocated a different reporting scheme for the 
CLRs. Having them report, as is currently the case, to the District 
Manager introduces unnecessary conflict. MSHA should create a separate 
office where the CLR could report to a more independent review.
     Provide more realistic timeframes for operator's to 
respond to agency notices. The current 30-day response time is 
insufficient, necessitating operators to initiate enforcement action 
challenges merely to protect themselves from responding to individual 
actions because time has expired. Concurrent with this MSHA should 
reform the manner in which it bundles dockets to ensure they include 
only the enforcement actions and related proposed civil penalties from 
the same inspection.
     Mandate that the CLR and ALJ decisions be used as training 
tools for inspectors so that better evaluations are completed by 
inspectors. Having to ``re-litigate'' settled issues because 
information is not shared on a timely basis across the agency 
unnecessarily adds to the Commission backlog and drains scarce 
resources.
    Mr. Chairman thank you again for providing us the opportunity to 
appear.

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                                 ______
                                 
    Chairman Miller. Thank you. Thank you very much for all of 
your testimony.
    Mr. Watzman, you stated, I think, this morning and 
previously that you believe that the change in the conference 
policy in 2008 is the--is really the genesis for the change in 
the contesting.
    Mr. Watzman. I think that it is the combination of all the 
factors, Mr. Chairman. It was the change in the Part 100 
regulations. It was the elimination or the termination of the 
informal conference process.
    Let me give you one example to explain that. One of our 
operators had 200 conference requests pending with a conference 
officer at the time the agency decided to terminate the 
informal conference process.
    Those 200 pending requests were immediately transferred to 
the Review Commission and became part of the backlog. So I 
don't think we can point at one single factor and say that, in 
and of itself, is what caused what we confront--what we are 
experiencing today.
    Chairman Miller. Ms. Jordan, you have been on the 
Commission for some time now. When you look at the impact of 
that decision, and you look at the increased enforcement, do 
you partition this in a different fashion, or do you have a 
different comment on this?
    Ms. Jordan. The impact of the decision that Mr. Watzman 
referenced of transferring the 200 cases to the Commission?
    Chairman Miller. Well, the change in the conference policy. 
So you would have had a preliminary conference. Those now had 
to go into the formal process. You didn't get to take your 
first bite at the apple and then later go----
    Ms. Jordan. Right. Well, of course, the Commission and 
myself personally--I am not that familiar with the details of 
how the conferencing has worked. The parties engage in that 
before the matter comes to the Commission.
    I would say that to the extent there is a process out there 
that allows the parties to resolve the disputes and would 
eliminate some matters coming to our door, that would be 
helpful.
    Chairman Miller. Mr. Main? Secretary Main?
    Mr. Main. Yes, I think with the conferencing--in one of my 
old jobs----
    Chairman Miller. The mic. You have to speak--or just pull 
it closer to you, if you will, please.
    Mr. Main. Can you hear me? Yes, there is a lot of history 
with the conferencing process. I dealt with it many years ago 
and with regard to the current set of circumstances, I don't 
think there is any question that if an issue is resolved 
through the conference before it gets to the contesting stage, 
those will not be part of the backlog.
    And one of the things we recommend is to go back and look 
at that, but under a more careful process than was in place 
before.
    Chairman Miller. With all due respect, the process that was 
in place before looked a little bit like an old boys' club.
    Mr. Main. Well----
    Chairman Miller. You kind of had a set pattern here of 
penalties and a set pattern of violations, and you could deal 
them out, and then you--some moved on and some didn't. Or if 
you didn't like the--how that was dealt, you sort of got a 
second bite at the apple.
    And it seems to me that the--that was the pattern of 
enforcement that the Congress expressed concern about.
    Mr. Main. I think if you look--and I don't disagree with 
that. But I think if you look at the current process, when we 
look at the high rate of reductions in penalties, I think we 
could make the same issue with the current process.
    And I think what I have looked at is that we need a better 
system here that, at the end of the day, that we look at good 
paper coming out that never goes into the contest side from the 
MSHA side, and that we look at a system that doesn't favor a 
mine operator looking at the settlement rate and say, ``Gee, 
for 40-some cents I can send a letter into MSHA, wait 2 years, 
and get about a 47 percent rate.''
    And I think putting all those things in context, we still 
have some of that same problem with the current system. So 
looking at taking the best pieces out, creating a conferencing 
process that at the end of the day is not a Monty Hall process, 
is not a wheeler-dealer, is actually just clarifying the facts, 
and we would not look at those same set of facts in the second 
round.
    And I think that is what was going on before. There was a 
conferencing process to look at those set of facts, the quality 
of that paper, it goes back in an offer, you conference it, 
then review it again, looking at those same set of facts--to 
me, that is a little bit crazy.
    So I think that needs to get fixed, and you only have that 
one opportunity to look at that one set of facts. And if you 
don't get them resolved then, you go to the litigation process.
    Chairman Miller. Thank you.
    Let me, in my remaining time, just raise one question. The 
allegation is made here that people are--or the challenges are 
made--the contesting is made because some mine operators are 
concerned that they will end up in a pattern of violations as 
described in the law and in the regulations, so if they can 
keep the adjudication from taking place, they don't face that 
sanction.
    The experience is with operators that have faced that 
sanction that afterwards violations were cut by about 72 
percent. I mean, the sanction obviously had a huge impact on 
how they operated the mines after that event took place.
    Mr. Watzman has said that this backlog doesn't place miners 
in jeopardy. It doesn't have any impact on their health. And 
yet if you have what some--one of our reviews suggested there 
may be 40--in excess of 40 companies, with maybe 6,000 miners, 
who if the adjudications became final they could end up in a 
pattern of violations.
    So we are suggesting that perhaps this process is 
protecting those with the worst mine records and those with the 
most serious violations. That sounds like a real bad deal for 
the miners who are working in those particular mines, and they 
sort of become part of the mosaic of the total contested 
violations.
    And I am worried that we are losing our focus here, because 
we now have thousands and thousands of contests that have sort 
of created a camouflage and prohibited the worst mine operators 
from being brought to justice, if you will, and to protect the 
lives of those miners who are going--those 6,000 miners who are 
going into those mines every day.
    Mr. Main. Mr. Chairman, I don't disagree with what you say. 
I think that if you would say that the system, the way that it 
is, is not having any adverse impact on enforcement, that is 
just not true.
    To say that, you have to take Section 104 out of the Mine 
Act, which is the pattern of violations section. And it was 
designed for the purpose of getting to those operators that had 
consistently violated--serious violations in the--you know, of 
the mine--or in the mine.
    And the backlog is preventing MSHA from utilizing that tool 
of the Mining Act. And I think the consequence there is that 
mines have the ability to continue that pattern unabated unless 
we can go in and figure out a way to use the pattern.
    We believe that we need to put those cases at the head of 
the pack, to go in--regardless of what is going on with the 
backlog, and regardless of how many cases there are, we need to 
start pulling those cases out fairly quickly and moving those 
to the Commission and getting them resolved, so we can 
effectively implement Section 104 of the Mine Act.
    Chairman Miller. Because the two things can't be true. You 
can't have this dramatic reduction in violations of the worst 
operators when they are confronted with a pattern of 
violations, and the continuation of operators who quite 
possibly would qualify for that sanction continuing to just do 
business----
    Mr. Main. Yes.
    Chairman Miller [continuing]. In the usual--in the usual 
manner. Thank you.
    Mr. Thompson?
    Mr. Thompson. Thank you, Mr. Chairman.
    Once again, thanks, panel, for your testimony. As a 
grandson of a surface coal miner, I appreciate the work that 
you do.
    And, Assistant Secretary, you--your statistics--you know, 
we are here talking about the effectiveness of the MINER Act 
and all the, you know, changes since then.
    And, Mr. Roberts, I appreciate your work in terms of the 
individual safety of coal miners and, you know, it really comes 
down, in fact, on this.
    I would have to say, based on your testimony--I have heard 
that--I was very pleased to hear, Assistant Secretary, in terms 
of--you know, you laid out in terms of the decline in--the all-
time low, where we are at.
    And I think that is--obviously, I think that has to be an 
important indicator in terms of the effectiveness of what we 
have seen, and that being--and just--I appreciate that 
information that you shared.
    Mr. Watzman, one of the concerns that mine operators are 
highlighting is the need for consistency. You know, it would 
appear that everyone wants to operate by the rules, but the 
rules appear to keep changing without any explanation.
    Now, a recent article from the law firm of Dinsmore & Shohl 
outlines a problem with the change in the interpretation of 
reportable roof falls. Now, how do you believe MSHA can improve 
their communications with mine operators about changing 
interpretations?
    Mr. Watzman. Well, unfortunately, I think from the 
industry's perspective a lack of consistency has been one of 
the hallmarks of MSHA's regulatory and enforcement over time. I 
think it is recognized by everyone--and in fact, the comments 
of the Assistant Secretary this morning when he talked about 
writing good paper and not issuing bad paper is a reflection of 
that.
    We need to have better processes, better open 
communication, better dialogue and better training for all the 
parties to have an understanding of what gives rise to these 
conditions.
    MSHA over the last few years has hired hundreds of new 
inspectors. They come into the job with not the experience that 
the previous inspectorate did. They approach it differently.
    Unfortunately, we work in an area where things are not 
black and white all the time. They are often times gray. And 
there is a great amount of subjectivity introduced into this 
process.
    I think many of the steps that the Assistant Secretary 
talked about this morning will eliminate the inconsistency that 
exists across the industry and hopefully over time will lessen 
the disputes that have resulted from that.
    Mr. Thompson. Your testimony suggested that the closing 
inspection meetings have become less productive over time. 
However, MSHA points to this as one of the better ways to 
communicate disputes with citations issued.
    How can the industry and the agency work together to ensure 
that these are productive meetings that improve worker safety 
and health in the long run?
    Mr. Watzman. Well, this, again, has to do with 
communication and training, how the MSHA inspector is 
conducting his job when he is at the mine site and, quite 
honestly, how the mine operator representatives are interacting 
with the MSHA inspector.
    It doesn't advance safety and health at all if there is no 
dialogue between the parties. When an inspector completes his 
inspection, goes out to his vehicle, fills out citation forms, 
walks into the mine office and hands them to the mine 
operator's representative, that is doing nothing to advance 
miner safety and health, and that is creating a confrontational 
environment between the two.
    We need to overcome those hurdles, and I think that, you 
know, we are moving in the direction of doing just that.
    Mr. Thompson. Okay, thank you.
    Chairwoman Jordan, with the money from fiscal year 2010 
appropriations, the Commission will hire, as you mentioned in 
your testimony, four more administrative law judges, and you 
have requested additional funds for five judges in the fiscal 
2011 budget request.
    Now, at this time, the Commission has offices in Washington 
and Denver, Colorado. Do you know where the individuals that 
you are hiring will be working, and will there be equal 
placement in the west to handle the cases there?
    Ms. Jordan. Well, at this point, we would be able to place 
some in our D.C. office as we start to hire, and we will be 
adding some to the--our Denver office, which is the one you 
referred to.
    And then we will be looking at opening up an additional 
office which will probably be in the metropolitan area here. 
There are some benefits to be obtained with that decision, we 
found.
    Mr. Thompson. I mean, what criterion are you using to 
determine where the proper placement is to make sure that, you 
know, the personnel are on the ground strategically to be able 
to address this work backlog?
    Ms. Jordan. Well, we are looking at all of our procedures 
to see what we can simplify. As I indicated, we are going to 
have--and we are going to have parties file a draft order when 
they file their motions to settle, whereas now the judges--the 
Commission has to create the order when it issues the approval 
or disapproval of the settlement.
    And we are going to have these filed electronically, which 
will also allow us to start to monitor how we can expand and 
improve electronic filing processes.
    In regard to your mention about judges--you know, access by 
the west, we are looking at--we always want to provide access, 
and no matter where the judges are located, I mean, they travel 
to the parties to hold their hearings.
    Also, in the past, some judges have set up--I don't know 
what you would call it. I mean, it is kind of referred to as a 
calendar call. A couple of judges that are now retired--and we 
have been talking to them to see how they did that, and how 
effective it was--the former chief judge--to gather a lot of 
cases and go out to a location, wherever the parties were, and 
sit down.
    People were told to be ready to talk about 30, 40 cases at 
once, sat down and, you know, they really had to focus on them 
and really--we would try and resolve as many of them as they 
could. And if they didn't resolve, the judge would usually--
those they didn't resolve they would usually pass off to 
another judge so that it would be fair.
    The parties, you know, having maybe disclosed some 
information in the course of trying to settle them, wouldn't be 
going before the same decision-maker.
    And you know, on the other hand, if the judge, as he put it 
to us, you know, gave his eye roll, that kind of gave the 
attorneys there the ability to go back to their parties and 
say, ``Well, this case, you know, isn't a good one, I think we 
better resolve this.''
    And so we are--you know, we are looking at exploring that 
and, really, whatever procedures we can think of to help 
expedite matters.
    Mr. Thompson. Thank you.
    Chairman Miller. Mr. Scott?
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Ms. Jordan, you have a 16,000-case backlog. I think a more 
significant focus would be on how long it takes to actually 
resolve a case with the backlog from the time it comes in till 
the time it is settled.
    What is a reasonable time to take to resolve a case?
    Ms. Jordan. Well, you know, that really depends on the 
complexity of the case. I mean, we have some cases that, 
frankly--they are resolved before they are even assigned to a 
judge, and the parties have filed a motion to settle, and it 
gets assigned to a judge, and the judge can review those 
motions.
    On the other hand, you have cases that have many challenges 
to the underlying violation, the seriousness, the negligence, 
whether there were accidents involved, disasters, so those--you 
know, those would take a longer time.
    Mr. Scott. Well, how long are these cases taking, just a 
routine case going through--because of the backlog, how much 
time is added to the--to that because of the backlog?
    Ms. Jordan. Well, we have seen--the category of cases that 
does make up our largest category, the cases that are disposed 
of ultimately through settlement--we have seen an increase in 
time go from about 170-some-odd days 4 years ago, on average, 
to almost 400 days on average now to dispose of them.
    Mr. Scott. Okay. Now, if you had--if you wanted to hire 
more judges, that costs money, but of course you are processing 
claims, picking up funds. Would the funds collected more than 
pay for the judges?
    Ms. Jordan. Well, for instance, I mean, I guess that is one 
aspect of thinking about it. The current cases that are ready 
to be settled, where the parties have already agreed to settle 
and motions to settle are pending--the proposed penalty amounts 
in those cases, I think, is--comes to a little over $7 million.
    However, that is the amount that MSHA initially proposed. 
And usually by the time the case gets resolved and settled, it 
is a portion of that. I mean, if you applied the figure that is 
the average that MSHA settled a case in 2009, which I think is 
about 55 percent of what they originally proposed, you would be 
looking at about $4.2 million.
    Mr. Scott. Does the lack of--several people mentioned the 
lack of pre-judgment interest. What do other regulatory 
agencies like OSHA--do they have pre-judgment interest?
    Ms. Jordan. I don't know.
    Mr. Scott. Secretary Main, you indicated that you are going 
to be reinstituting the pretrial conferences. Is there any 
administrative or legislative barrier to reinstituting that?
    Mr. Main. No, there is not, and do you want me to explain a 
little bit about that one?
    Mr. Scott. Well, I think with a pretrial conference you can 
settle a lot of them without a trial, and you are not doing 
that, so they are just--apparently just going to trial. And you 
need--you are talking about reinstating the process?
    Mr. Main. Well, actually, there is a process that is in 
place that was moved to occur after the contest was filed. We 
are looking at taking that process and moving it back to a 
point prior to the contest----
    Mr. Scott. Okay. Is there any----
    Mr. Main [continuing]. Of the----
    Mr. Scott [continuing]. Legislative or regulatory barrier 
to doing that?
    Mr. Main. This was done by policy before. We expect policy 
to do it.
    Mr. Scott. Okay.
    And, Mr. Roberts, can you just talk generally about the 
safety implications of this huge backlog?
    Mr. Roberts. Yes. Thank you very much, Congressman. I 
appreciate that. I think it was touched on by Chairman Miller 
and responded to by Undersecretary Main to a degree. But let me 
just do it by example, if I could.
    Let's assume that we were all in here prior to the Sago 
explosion talking about the Sago mine and all the violations 
that had been issued there. That was a topic of this committee.
    And they had been placed, perhaps, under this more 
stringent inspection regimen--regime. There is a possibility 
that--we don't know--that Sago would not have occurred.
    Today, as we look around the country, there is a number of 
these mines that have been issued incidents, violations and 
unwarrantable failures, citations. It is true, as Mr. Watzman 
say, they have to correct those.
    But the idea of this is that you have got a repeat offender 
over and over and over again. And something needs to be done 
more stringent than every other coal mine in the United States 
faces.
    That calls into action MSHA to go in and say, ``Look, you 
are facing--understand what happens here when you are placed 
under this order. You are facing closure here if you do not 
correct this violation--these violations.''
    Seventy-two percent reduction in violations at those 
operations where that has been imposed. What is happening--that 
is not part of the law right now because all of this is tied 
up. All these incidents, violations, all these citations are 
tied up in this 16,000-case backlog. So a tool that Congress 
gave to MSHA is non-existent.
    Mr. Scott. Mr. Chairman, I just want to point out that we 
are talking about 500 cases per judge per year. And I 
understand that the new judges that we are going to get will 
keep up with the cases coming in but do nothing about the 
backlog, and the backlog, at 500 per judge, is 32 years with--
--
    Chairman Miller. Yes, we are sort of at a--we sort of ended 
up at a steady state with the backlog.
    Mr. Scott. Well, we need to chip away at that.
    Chairman Miller. Yes.
    Mr. Scott. So I think some temporary assistance may be 
appropriate. Thank you very much, Mr. Chairman.
    Chairman Miller. Thank you.
    Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman.
    Thank you all for coming.
    And you know, Mr. President, let me just--you know, you 
will have to pardon my crude artwork, because I couldn't find 
the chart. I had some folks from the industry come in. I don't 
know if you can see this, but the top is injuries going down, 
and the complaint was too many citations or visits and things.
    And when they left my office, I got to thinking, ``Well, 
wait a minute here. Less deaths and injuries, more stringent, 
you know, overviews and citations.'' So I think in--I think the 
industry was trying to make the case for me, and I should--you 
know, I thank them for that.
    But I have to tell you that it just seems to me that given 
the hearings--and you know, I was here, Mr. President, when you 
talked about the things that have happened with miners. And I 
have miners in the southern part of my district.
    And you know, I don't think any of us--any of us believe 
that it is acceptable to send miners in when it is not safe. 
But would you agree that because of the citations, 
inspections--those kinds of things have made it safer for your 
members to be able to go in and--and go to work and come home 
and be safe with their families?
    Mr. Roberts. I don't think there is any question. As I said 
in my opening statement, I think any time that Congress has 
acted, the proof is always there. You can look at the 1969 Coal 
Mine Health and Safety Act.
    You can look at what Congress did. And Congress should take 
a great deal of pride in the actions that they took in 2006. 
Injuries are down. Fatalities are down. That was what we all 
wanted when we came here in 2006.
    Mr. Hare. Mr. Watzman, when a large mining company has 
contested 88 percent, I am told, of nearly 2,600 violations in 
2009, they have advised this committee that due to the 
progressive penalty policy and the size of future penalties, it 
can ``no longer justify just taking whatever MSHA dishes out 
regardless of its legitimacy.''
    Now, let me, again, repeat that. I want to underscore 
that--regardless of the legitimacy of the claim. So in the view 
of the NMA, it--the penalties should be contested by mine 
operators regardless of legitimacy?
    Mr. Watzman. No, and I----
    Mr. Hare. Would you concur with that?
    Mr. Watzman. No, I don't, Congressman, and I--and I don't 
know the specifics of the case you are talking about, and I 
can't speak to it. But I think you have to look at the 
multitude of factors that go into play here.
    Let me give you an example. When an operator receives a--an 
assessment notice from MSHA, they have 30 days to make a 
decision as to whether or not they are going to contest that. 
They may receive 20, 30, 50 assessment notices in the form of 
one docket.
    They have 30 days to go back to the mine, to meet with 
their people, to decide on each and every one of those, ``Do we 
pay it? Do we contest it?'' Unfortunately, we are operating in 
a system today where contesting has, to some degree, become the 
default setting.
    They contest the citations. They meet that 30-day 
requirement. And then they logically go through each one of 
those and make a determination, ``Do I continue to contest that 
individual citation, or do I pay that citation?''
    So I think there is a filtering process, if you will, that 
occurs after they file the notice to contest.
    Mr. Hare. Your testimony also states--and I agree with 
you--that many mine operators do work hard to protect the 
safety of the workers that they have.
    But there have been some major mining companies that don't 
seem to be on the same page with you. Nine of 56 mine operators 
who were notified by MSHA that they would face withdrawal 
orders under a pattern of violations have been notified more 
than once, and one was notified on three separate occasions.
    So in your view, is a repeated notice of a pattern of 
violations consistent with the proactive approach of mine 
operators to protect safety of the people in these mines?
    Mr. Watzman. I think we all recognize the pattern of 
violations is in the--in the law for a very valid reason. It is 
the most severe enforcement tool that the agency has in its 
arsenal.
    But there are steps that can be taken to, and in fact, 
force action on the part of the operators even before they 
reach a point of a pattern. When an order is issued under the 
act, that requires that miners be removed from that portion of 
the mine until the condition that gave rise to the concern is 
addressed.
    So I don't want you to have the impression that because of 
this backlog no enforcement actions are taking place, nor are 
operators addressing and improving the conditions underground. 
That is just not the case.
    There are tools available to the agency. They utilize them 
routinely. And operators respond accordingly.
    Mr. Hare. Just going back, Mr. President--I don't want to 
belabor you here too much, but it says--I just want to know, on 
mine safety--has mine safety been impacted by the backlog of 
over 16,000 cases, in your opinion--of the Review Commission?
    Because I mean, what I am trying to--what I am trying to 
find out--maybe the panel can answer this. What is the absolute 
single best thing we can do if the--to protect miners being 
safe in--because this is a very difficult job, at best, to do.
    And I certainly wouldn't want to do it, to be honest with 
you. It is dangerous work.
    Mr. Roberts. Well, thank you very much for your concern for 
miners of this nation. The safety is impacted. It is impacted 
by the fact that some of these companies and some of their 
mines would be under a pattern of violations as we speak had 
they not appealed every single one of these citations, or at 
least 91 percent of them in some cases.
    If they were under a pattern of violations, they would be 
getting enhanced inspections by MSHA. They would be under an 
order that if they did not comply with the law their mine would 
be shut down.
    Because of the backlog here, that is a tool that has been 
taken out of the hands of the undersecretary here. So those 
miners who are working in those particular mines where a 
pattern of violations would have been issued otherwise are at 
greater risk than they would be had we not had this backlog of 
cases that has taken place since 2006.
    Mr. Hare. Thank you, Mr. Chairman.
    Chairman Miller. Mr. Loebsack?
    Mr. Loebsack. Thank you, Mr. Chairman. Thank you for having 
this hearing today.
    I will be, I think, pretty brief. But I do have in front of 
me--I am from Iowa, and we used to have a lot of active coal 
mines in south central Iowa. John L. Lewis has a long history, 
actually, connected to Iowa.
    I have in front of me a map that is registered mineral 
production sites, and we have a lot of clay pits. We have a lot 
of gypsum quarries, limestone, and sand and gravel pits--not 
coal mines as such.
    I want to broaden this out just a little bit, if I may, 
since I am from Iowa, and I have heard from a number of folks 
who operate quarries, limestone and other kinds of quarries.
    I want to ask Mr. Secretary--maybe you have some 
information on this. And obviously, if you can't get this to me 
today, I would like to get it from you in writing. But in 
general, can you speak at all about the rates of contest, 
notice of violations, for mines such as rock quarry, limestone, 
sand and gravel or aggregate, as opposed to coal mines?
    I understand coal mines are the focus today, but can you 
speak to those other kinds of pits and limestone and other 
kinds of pits and quarries?
    Mr. Main. Thank you. Yes, I actually met with some of your 
representatives, I think, this last week when I was out in the 
Midwest meeting with the--some of the quarry aggregate folks, 
and had some discussions about the--you know, the Mine Act and 
about the implementation of the Mine Act regulations and 
penalties.
    And you know, one of the things that I talked to them 
about, as I talk to everybody about, in the country, on how we 
fix this problem, how we move forward, is that if you look at 
the data, what it tells you is less than one-half of 1 percent 
of the violations issued by MSHA inspectors are vacated or 
thrown out.
    That means almost every violation that they issue is a 
violation, so--but I say let's start the conversation from that 
point and talk through what we really need to do to fix this 
problem. And it gets to some other discussions that have been 
here today about having improvement and compliance.
    We believe, and we are going to be moving forward in part 
of our initiatives--is to press for improved health and safety 
programs to be in place in mines, because I can tell you from 
what I see as Assistant Secretary, we are not getting the job 
done in terms of the industry obligation.
    MSHA is there as an auditor to see what the agency--or the 
operator does. It is not there to fireboss or inspect your 
mine.
    So our first mission here is to get the--a change of 
culture here in this--in this mining industry where we have the 
mining industry understanding their responsibility is to do 
examinations, to identify violations that exist, correct those 
to protect the miners.
    And that was some of the same discussions I have had with 
some of the aggregate operators throughout the country.
    And in terms of the clean paper, I think that, you know, 
one of the things that I look at is the conferencing process 
and how we can resolve this--is that there needs to be a clear 
understanding of what this paper is.
    We are going to work toward that effort, and I think we are 
pretty close to it with what we do. But I think the industry--
and that is one of the things here I want to do, is give a good 
education about what good paper is, so we can take some of this 
mystery out as we have the conferences and settle some of these 
cases before they ever get to Commission Chairman Jordan and at 
the Commission.
    We are also interested in talking about how we can improve 
mine safety programs with regard to training outreach, and we 
are doing some of those. As a matter of fact, the aggregates 
industry joined us with the Rules to Live By program that we 
just launched. And we have had discussions that--where we go.
    So I think if you look at--the first step in solving this 
problem is who has--what is the problem and who has ownership 
of that problem. The problem is we have got far too many 
citations being issued. They are being pretty well accepted as 
a citation or order by the process, with less than one-half of 
1 percent being tossed out.
    And the ownership has to start with the mining industry to 
say, ``We are going to start cleaning this up.'' And we need to 
look at ways to help facilitate that.
    Mr. Loebsack. Thank you.
    Thank you. I yield back the balance of my time, Mr. Chair. 
Thank you.
    Chairman Miller. Congresswoman Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman.
    I have a two-part question, and it is pretty much on the 
same subject, and it is--Chairwoman Jordan and any of you that 
know the answer to this, to expand on it, what are going--what 
will our challenges be in finding the appropriate number of 
judges that are talented and experienced and willing to come to 
work for the agency to handle 500 to 700 cases a year?
    Is this going to be easy as pie, or is it going to take a 
long time, or next year at this time are we going to be sitting 
here with not having accomplished very much because, guess 
what, we only hired two judges or--and prosecutors as well?
    So what major challenges will you come up against?
    Ms. Jordan. Well, speaking for the Commission, we have 
started down the road of hiring. We are interviewing. We have 
hired one judge.
    It will be challenging, but we think that we provide, I 
guess, an attractive place to have judges come work. The work 
is interesting. It is collegial. And we will, you know, just 
make all the efforts we can to get the judges on board.
    It will be challenging, but I think not impossible.
    Ms. Woolsey. Where will you find these judges? Are they all 
over the country? Are they at the universities?
    Ms. Jordan. Oh, they are all over the country. Typically, 
we hire a judge who has often been a judge for the Social 
Security Administration.
    The Social Security Administration really hires many judges 
each year off a list of people who are qualified to be hired as 
an ALJ, and that provides, I guess, so to speak, almost a 
training ground for a lot of judges. They go to work for Social 
Security as a judge, and then they go to work for other 
agencies from that position.
    And so we generally look--you know, look to the sitting 
judges there for our hiring.
    Ms. Woolsey. How long does it take to recruit this one 
judge that you have----
    Ms. Jordan. Well----
    Ms. Woolsey. Have you made an offer?
    Ms. Jordan. Yes, we have.
    Ms. Woolsey. Okay.
    Ms. Jordan. This didn't take very long. I mean, this 
individual was actually familiar with the Commission and had 
worked in a different capacity as a counsel previously and was 
currently working at another federal agency as an 
administrative law judge.
    Ms. Woolsey. So how many judges do we have to hire now and 
with the new budget?
    Ms. Jordan. Well, in 2010 we are looking at hiring four 
additional--four judges, so we are looking at three more, and 
we----
    Ms. Woolsey. And then----
    Ms. Jordan [continuing]. Are engaged in interviewing and 
our--the chief judge is very actively involved in that process.
    Ms. Woolsey. And the President's budget allows for how many 
more?
    Ms. Jordan. In 2010 it would be four, and in 2011 an 
additional four.
    Ms. Woolsey. Four?
    Ms. Jordan. Yes.
    Ms. Woolsey. I thought it went into the teens.
    Well, Secretary Main, if Congress were to provide more 
resources so that we could start working on that backlog, how 
many judges will we need and prosecutors in order to eliminate 
the backlog in, let's say, 3 years?
    Mr. Main. Yes, I think that the--Chairman Jordan probably--
in terms of the judge and staffing that is needed on the 
Commission side, probably has a better handle on that.
    What we look at is the resources that we have to have to 
get the job done. And you know, currently, you know, some of 
the discussions have been raised here today about the processes 
that may be put into place, the simplification of the hearing 
process, the OSHA-style quick trial processes, and the 
reduction of discovery of case development.
    Those things, I think, are as important as some of the 
numbers we are talking about, because depending on how the 
Commission moves forward, I think it will have an impact on how 
we have to move forward with our resources, if we get into some 
of those more limited discussions.
    We have made some adjustments in the 2011 budget for some 
increases of resources to do that both in--excuse me, the 
Solicitor of Labor and at MSHA. But it is sort of trying to 
figure out what the Commission has planned to do with the 
judges they put on, in light of these other discussions with 
trying to simplify a lot of this process.
    Ms. Woolsey. So does anybody have any idea of what it would 
cost us to eliminate the backlog, how many more judges we would 
need, 3 years, 5 years? Has anybody worked that out?
    Ms. Jordan. Well, Congresswoman, we were asked to work that 
out and provide that information. If we assume that we operated 
under the 2010 budget as granted and then the 2011 budget 
request as proposed by the President, going from there we would 
need--if we went up to 26 judges, for instance, in fiscal year 
2012, we could get the backlog down by September of 2014.
    Alternatively, looking at a more immediate intensive 
intervention, you could be considering--it would take 
additional money in 2010, for instance, to go up to 18 judges 
to hold the backlog constant, to stop from rising. That would 
require going up to 18 judges.
    And then going up to 26 judges would allow the backlog to 
go down and be eliminated in January of 2013, which would be 3 
years.
    Ms. Woolsey. Okay. Thank you very much.
    Mr. Chairman, Mr. Watzman had something.
    Mr. Watzman. Ms. Woolsey, if I might very quickly--and I 
can't, you know, talk--tell you how many judges it would take, 
but I think we should be looking beyond just the mere hiring of 
judges.
    I think, as I--as reflected in my testimony, we believe 
that because of the elimination of the pre-assessment 
conference process, because that was eliminated, many of these 
matters moved up to the Commission that would not have 
otherwise.
    As the Assistant Secretary reinstates the conference 
process, the informal conference process, I don't know if there 
is a procedure in place to have these taken from--these cases 
removed from the Commission and placed back into the informal 
conference process.
    But we need to be exploring options in addition to the 
hiring of more judges. We need to be exploring other options, 
other creative options, if you will, that will allow this 
backlog to be worked out. I think we are making a mistake if we 
focus singularly on just hiring more judges.
    Ms. Woolsey. Well, like possibly settling cases at 50 
percent of the original assessed amount, just to make it 
happen? That is not the way we should be doing this.
    I yield, Mr. Chairman.
    Chairman Miller. Mr. Payne?
    Mr. Payne. Thank you very much.
    And you know, this issue of mine safety has been with us as 
long as I can remember. As a young paper boy delivering a 
newspaper, I used to read about, you know, mine accidents.
    And John L. Lewis was the first person, other than the 
President of the United States, that I heard about because this 
issue--and of course, I don't know how many canaries died but, 
you know, we used to always see that being what happens in a 
mine. It seems kind of primitive that you had to have a canary 
to make sure that everything was all right or not all right.
    But perhaps on that issue that Ms. Woolsey raised, Mr. 
Roberts, what do you think about the response we heard from Mr. 
Watzman?
    Mr. Roberts. I think I need to make a couple points, if I 
might. I think there is a--perhaps the committee might believe 
that there is--these cases go from the mine straight up to a 
judge, and that is just not the case.
    In 2008 when the informal process was eliminated, there was 
what was known in the industry now as an enhanced conference. 
What that means is throughout the United States there are 
various MSHA districts that fall under the guidance of 
Secretary Main.
    And for instance, there is an office in Mount Hope, West 
Virginia. If an operator is issued a citation, the only 
distinction to be made right now between the informal process 
that used to be an opportunity to go down to MSHA as soon as 
the inspector cited you for something.
    Understand at the time the citation is issued, no one knows 
what the dollar and cent amount of that citation will be. That 
is determined by another branch of MSHA.
    Now the only distinction to be made is you can go now, once 
you know what the fine will be. There will be a number of 
citations issued by that MSHA inspector upon an inspection. At 
the time that you know what that dollar and cent amount is, 
kind of like getting a speeding ticket and someone tells you it 
is $100, you know and you can go down and argue you weren't 
speeding if you want to.
    You can go down to the various district offices and say, 
``I would like to have an enhanced conference.'' The time 
limits that were talked about here before can be changed to 
give you more time so this process can take place. There are 
meetings in the MSHA district offices to discuss those fines.
    In many instances, those fines are reduced. And sometimes 
those cases are settled, and sometimes they are not. The real 
problem here--and this is my view of this--is there is nothing 
to lose here. There is nothing to lose here.
    It is like you having an electric bill, a gas bill, that 
you have to pay and the utility company said, ``Take that money 
and go to Las Vegas and see how you do, and if you don't--and 
if you lose, you don't have to worry about anything other than 
the amount of money that you owed us to start with.''
    So as you go down the process, why wouldn't you appeal 
this? You have been issued a significant fine, perhaps. You can 
go through this process. And the only thing that can happen is 
that it will be reduced.
    And if you look at the statistics and try to put them 
together and understand those statistics, it works. You are 
going to get your fine reduced somewhere along the process 
here.
    So there is absolutely no reason for every coal operator 
who would choose to do so--and some don't, and they should be 
commended--to appeal this through the process and send it up to 
the Review Commission.
    The only thing that is going to happen here is you are 
going to pay less money or the same amount of money.
    Mr. Payne. You are absolutely right and, as a matter of 
fact, it seems like in law in general, in bargaining, whether 
it is plea bargaining or whatever, you know, the prosecutors 
tend to downgrade the charges in order to get a plea.
    And so you have got nothing to lose, as you mention, by 
going through--a matter of fact, in most instances, the 
reverse. You have got a lot to gain.
    I just wonder also, Mr. Roberts, the--you mention about 
repeat offenders. You know, in anything, three strikes, you are 
out. You stay in jail for life. What kind of process is there 
currently for the current repeat offenders? Do they just get 
another fine, or are they--and keep going on about their 
business?
    I mean, we find that in the meat industry. You know, if 
they send food to a school that is no good, they say, ``Oh, it 
is no good. That is bad. You shouldn't do it.'' And they keep 
getting a contract from the U.S. Department of Agriculture. 
What is it here?
    Mr. Roberts. There is a very serious process here that has 
been stymied. That process is called a pattern of violations, 
and it is a very serious situation for any co-operator at any 
mine to have a pattern of violations issued, as Mr.--I almost 
called him Joe; I better not do that--as the Undersecretary 
pointed out.
    However, you cannot be under a pattern of violations until 
you have had all of your days in court. And we currently see 
16,000 cases sitting here.
    And until those cases are determined one way or the--
another, there are mine operators right today who would be 
under a pattern of violations, more serious inspection regime, 
and they would have to go a quarter without any S&S violations, 
which are the most serious ones, to get out from under that.
    Because of this process and 16,000 cases sitting there, 
that has been taken out of the law, something Congress placed 
in the law.
    Mr. Payne. Well, my time has expired. But I really 
appreciate that, and I recall a terrific potential mine tragedy 
in South Africa where hundreds and hundreds and hundreds of 
miners were trapped, all of whom were able to be rescued, I 
think, other than one or two, by virtue of mine safety 
procedures that they had in South Africa.
    And then in 2005 and 2006 here in our country we saw the 
same kind of--on a smaller scale, with tremendous losses. And 
so to me, progress is not keeping up with where it ought to be.
    Thank you.
    Chairman Miller. Thank you.
    Mr. Polis?
    Mr. Polis. Thank you.
    My district goes right up against Lake County and Leadville 
where in 2007 they announced they were going to reopen the 
molybdenum mine. Then of course, with the global recession and 
prices decreasing in 2009 they changed that, and we hope that 
it will open at some point.
    But my question is--it was referenced in the testimony that 
the primary issue here is the backlog and that the increase in 
judges should be able to deal with the case work going forward.
    But my question is, assuming that we have a significant 
recovery in this country--and of course, that recovery will 
affect the basic prices of commodities, and our Congress has 
been very instrumental in promoting a recovery through the 
American Reinvestment Act, stimulating demand for consumer 
products, many of which have origins in the earth--what would 
be the impact in a resurgence in the mining industry and 
therefore claims on the going-forward piece, as opposed to the 
backlog piece, if we return to levels of employment in the 
industry that we have seen historically during boom times?
    Ms. Jordan. Well, we have done our calculations assuming 
that we would have 9,200 cases incoming. We have sort of looked 
at that.
    We have leveled off a bit for the last year or so, but 
under the scenario that you have described I guess it could be 
foreseeable that there would be additional mining, additional 
enforcement and additional cases coming in even higher than 
that amount.
    Mr. Polis. So is the 9,200 based on sort of the trend of 
the last few years, or are there also--do you also look at what 
could happen during kind of robust economic recoveries, you 
know, and an increase in commodity prices and growth of the 
industry?
    Ms. Jordan. We looked at it based on just the last couple 
years----
    Mr. Polis. Okay.
    Ms. Jordan [continuing]. That is what we have had coming 
in.
    Mr. Polis. So how would we be situated going forward if, in 
fact, we have a robust recovery and the numbers are, you know, 
above that? How would we be situated on the going forward 
piece?
    Ms. Jordan. Well, I think the backlog would just continue 
to grow.
    Mr. Polis. Including some of the new claims that would then 
become part of the backlog?
    Ms. Jordan. Pardon me?
    Mr. Polis. Some of the new claims would then become part of 
the backlog under that scenario?
    Ms. Jordan. Yes. Yes, they would.
    Mr. Polis. Okay.
    I yield back. Thank you.
    Chairman Miller. Thank you.
    Ms. Titus?
    Ms. Titus. Thank you, Mr. Chairman.
    I represent Nevada. And of course, Nevada is built on 
mining. We call ourselves the Silver State, but we actually 
produce 77 percent of the gold, and we are--only employ over 
12,000 people directly in mining--that is--the average job pays 
about $77,000; that is a good job--and then about 52,000 more 
people in related industries that serve mining.
    So this is a very important issue for us. And I think the 
backlog like we have does a disservice to everybody involved, 
especially for the people who actually work in the mines.
    The Nevada Association of Mining feels that the backlog can 
be attributed to several things. And one of the things you 
mentioned a little before I got here--and I would like for you 
to elaborate on it, if you don't mind--is the elimination of 
the pre-contest informal conferences.
    And they also cite the ability that they used to have which 
was to be able to discuss some of the problems with field 
office supervisors before they turned into cases.
    I understand the problem of two bites of the apple, but 
could you address a little bit what your plans are, if you are 
going to put these back in place and how you deal with that 
issue?
    Mr. Main. Yes, and let me explain what the plan is here so 
everybody would get a better appreciation for what we would 
like to do.
    As I take a look at the current process, we have cases that 
may otherwise be resolved if a conference was held to clean up 
a set of facts and be resolved without impacting the backlog--
that are now part of the backlog, because under the current 
process those cannot be reviewed until after the contest has 
been filed.
    In looking at how we fix two problems here--one is getting 
those out of the backlog, and really straightening out this 47 
percent issue that bothers me I think as much as it does about 
anybody else--is to have some firmness in about how we do that.
    I view those conferences to be nothing more than sorting 
out the facts to makes sure that the paper that the inspector 
wrote is a valid piece of paper. And if we have erroneously 
issued that paper, then we should deal with it there. And that 
conference would clean up the mystery here about the good and 
bad paper.
    I don't think there is a lot of bad paper in the process, 
but at the end of the day that is how that would work. So there 
would be a quicker opportunity for the mine operators to sit 
down. It is not to negotiate settlements. It is to look at sets 
of facts.
    And once those sets of facts are finalized, for that 
conferencing process that is over. And I think the two bites of 
the apple issue that we have been dealing with in the past was 
that process in some form would take place, and then we would 
have the conference or discussion over the same set of facts 
after that conference closed, and basically sometimes with the 
same people looking at the same set of facts.
    I think that is a little crazy myself. So if we do this as 
a one-shot deal, we clean up the errors in the paper. And if 
there is a decision by the mine operator to contest, then they 
would go into the litigation pile. We would clean up, you know, 
hopefully, both of those at the same time.
    But that is the process that we are looking at doing. And 
at the end of the day, fixing this expectation bit, as Mr. 
Roberts--or President Roberts pointed out, that you just file 
a--a matter of contest and your expectation is you are going to 
get, you know, 40-some percent cut in your fine. We got to fix 
that. We got to fix that expectation.
    The expectation is whenever we have a case that doesn't get 
resolved at those conferences that there is going to be a stiff 
response by those representing this agency and the litigation 
process and to reduce that expectation of a big discount, 
because I think that is--you know, that is something that we 
have to deal with here in fixing this.
    Ms. Titus. Could I just also ask you, when the--when these 
go for appeal and for consideration to the court, are all the 
different kinds of mines just lumped together, or you have gold 
mine cases with uranium cases, and silver, and coal and all--
does it make any sense to look at some kind of better 
organization there--that would feed cases along in the 
different areas if they didn't all have to follow the same 
patterns?
    Mr. Main. Let me tell you a conversation I have had with 
the industry. If you want to slow down that process, contest 
everything, because basically what you are going to do is you 
are going to tie up all the folks who sit down and resolve 
these.
    And I think we have got to get to a point that the number 
of contested cases we see in the ranges of 80, 90 percent--I 
think there is something else that drives that. That is bogging 
down the process to even have conferences.
    So what happens is if you bog down that process, then you 
may force the folks who are reviewing this to do a lot more 
than they would normally do at the time.
    I think there is--when I looked at the records, there was 
something like 40-plus mining companies that had contested over 
80 percent of the--of the violations that they received. And 
that does clog up more than just the backlog with the 
Commission. It clogs up MSHA's ability to actually have a--you 
know, a review of the facts that the mine operator wants to 
submit in the conferences.
    Ms. Titus. Okay.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    If I might, on a second round here, there is no question 
that this is a difficult needle to thread. I wouldn't want 
anybody to walk away from the witness table or from this 
hearing and believe that somehow the suggestion is we go back 
to the old system.
    That system was clearly found wanting by the Congress on a 
bipartisan basis, and this bill was hammered out over a 
considerable period of time with the involvement of the 
industry, with the involvement of MSHA, and the mine workers 
and other interested parties, in a conscious decision--I didn't 
actually agree with the final bill because I was worried about 
the time lines--but a conscious decision to change the previous 
system that was leading--which, you know, we had an accident 
rate and we had a system that was unacceptable, certainly to 
the miners, but also to the Congress.
    And I think that part of the burden here is shared by the 
Congress. We said we wanted a tougher system. We wanted a more 
exacting system. We wanted to make sure that violations did not 
go unreported, that there would be enough inspectors, that the 
inspection--that the undergrounds would be inspected four 
times. And that is now being complied with.
    An amazing number of citations are being issued--I mean, I 
don't know, about 15 per inspection, it looks like, per mine. I 
think the mining industry has some obligation here in terms of 
what are they doing to change the number of citations in terms 
of the operation of those mines.
    But Congress, if we want this backlog addressed, and we 
want to adhere to the policy, we are also going to have to put 
some additional resources into the Commission to make sure 
that, in fact, this can be done on a fair and timely basis.
    And I am concerned--and I think you heard from members of 
Congress--the idea that you can just sort of settle out here at 
some point at 47 percent--you know, it is sort of a better 
return on your money than junk bonds but probably safer than 
Treasuries in terms of your ability to collect it. That is not 
a situation that you want to have happen.
    And I also would want to impress upon you that--I know it 
is denied, but I think you have a conscious decision, 
collectively or independently, by those who run the risk of 
being cited for a pattern of violations here clogging up the 
system and trying to postpone that day when they have to meet 
that judgment.
    That judgment has turned out to work to the benefit in 
terms of reducing the violations of where those miners, as I 
pointed out before, work in those particular mines.
    This question of bad paper--I appreciate we have new--you 
know, we have--we are not the first agency that has turnover 
because of people retiring and all the rest of that.
    But you are talking about--in S&S penalty decisions, about 
4 percent have been withdrawn or vacated, so it can't be that 
much bad paper on the--and by the time you get to the 
Commission, it is 1 percent of the remainders that are left.
    And on the unwarrantable failures, it is about 10 percent. 
So you know, and that is pretty consistent over the last 5 or 6 
years. And so I think the idea that somehow that is driving 
this process is interesting, but I don't think it is terribly 
accurate.
    I think there is another decision-making process among the 
operators about challenging this for other reasons that I have 
made out that may have more impact on this decision.
    And again, the MINER Act anticipated increased inspections 
on a regular basis and increased enforcement and tougher 
penalties. So you know, I appreciate people don't want the 
tougher penalties. They don't want to pay more. That is the 
law, and that was well argued about the increase in those 
penalties during the development of that law.
    My having said all that doesn't make your task any easier, 
but I want to make sure that we don't start to suggest that 
somehow we want to go back--we would like to get the accident 
rate even lower this year and next year. I mean, that is the 
goal.
    And I think you are right that you have got to start to 
develop programs with the industry beyond what we have now, but 
the industry has got to take some burden.
    If you are continuing to get these kinds of citations, I 
think you have got to ask how is it that you are doing business 
where this continues. After four inspections, if you are 
continuing to get that level of citations, I think you have got 
a problem.
    Mr. Thompson?
    Mr. Thompson. Well, Mr. Chairman, thank you. Thank you for 
this hearing.
    And thank you to the panel. You know, with the safeguards 
that were put in place, we have--and I know the focus of this 
hearing was to talk about the backlog of cases.
    But frankly, when you look at the all-time records in 
subsequent years in terms of safety, I think that speaks to a 
level of effectiveness of what was put in place, and so as I 
hope going forward we see increased use of our natural 
resources and more employment, actually, and jobs in this area.
    And one time my congressional district had not just surface 
but subsurface mines. Unfortunately, that industry is almost 
extinct in much of Pennsylvania today for many reasons, and so 
I certainly hope as we look forward going forward that we could 
look at, you know, ways of doing things more efficiently and 
with keeping that--safety as our number one issue.
    So I want to just thank the panel for your testimony today 
and for joining us.
    And with that, I will yield back.
    Chairman Miller. Thank you.
    I just want to--one clarification. I think when Chairwoman 
Jordan answered the question--I think her answer was--on this 
question of pre-judgment interest, have you considered that, or 
what----
    Mr. Main. Yes.
    Chairman Miller [continuing]. What is allowed or not 
allowed?
    Mr. Main. That is something that would have to be created, 
as I understand it. And it would probably have to be created 
through legislation.
    Chairman Miller. Legislation----
    Mr. Main. Yes.
    Chairman Miller [continuing]. Would be the response to 
that.
    Mr. Main. Yes.
    Chairman Miller. Okay.
    Secondly, Chairwoman Jordan, when you responded on the 
budget request that will--for 2011, you will be at eight--will 
be up at 18 judges with that request, is that correct?
    Ms. Jordan. Yes, that is correct.
    Chairman Miller. And that sort of comes close to sort of a 
steady state in the backlog, so that is not acceptable, and 
this is--this speaks to the Congress and the administration 
putting resources into this.
    It looks to me like you have to get to somewhere around 26 
judges before you can start to make a serious dent absent these 
other--if you just take the current situation, absent the 
changes that Mr. Main has talked about, absent the changes that 
some of the industry have suggested.
    Hopefully, those can be worked out within the underlying 
law and the intent of the underlying law, but I would hope that 
also--not to be redundant of my previous remarks, but the 
industry has got to accept some of the responsibility for the 
reduction in the issuing of citations.
    Again, it is not like we have this massive rejection rate. 
And I think the Congress has got to accept the--some of the 
additional burden for the reduction of that backlog. I mean, 
you are just not going to be able to work judges to such a 
level that you can do that if you don't have the proper 
resources.
    So we all have our work to do here, and thank you very much 
for your contributions to this hearing. This is, again, a 
matter that I certainly take very seriously. We made our 
commitment as Chair of this committee and as members of this 
committee, and we expect to follow through on it, and we look 
forward to continuing to work with you.
    Thank you.
    Without objection, members will have 14 days to submit 
additional materials or questions for the hearing record.
    And without objection, the hearing is adjourned.
    [The statement of Mrs. McMorris Rodgers follows:]

Prepared Statement of Hon. Cathy McMorris Rodgers, a Representative in 
                 Congress From the State of Washington

    Over the last year--and in particular over the last few months--
we've witnessed first hand the impact that regulatory burdens are 
having on the private sector. From a lack of job creation to a lack of 
credit to stagnant growth, many industries have been smothered by this 
onslaught of regulation. The mining industry is no exception.
    Increased regulations imposed on mine operators--from bureaucratic 
requirements for publication in the Federal Register to the 
requirements imposed in contested mine safety cases--are stifling an 
industry already plagued by negative publicity.
    What many forget is that the mining industry plays a critical role 
in providing greater energy security as well as economic security to 
our nation. We should be encouraging its expansion not limiting it.
    To that end, I am interested in how the 2009 Procedure Instruction 
Letter (PIL) requiring mine operators to contest a citation before 
reconciling disrupted the existing system creating the back log seen 
today at the Mine Safety and Health Review Commission (MSHRC). Further, 
I will be interested in how the Mine Safety and Health Administration 
(MSHA) intends to resolve the problems created by the PIL.
    As all the parties involved in this problem seek solutions, a first 
step should be trying to obtain additional information in a non-
adversarial setting in order to dispense with as many citations as 
possible prior to bring these before MSHRC. Reducing the backlog is a 
worth goal, but maintaining high standards for the safety and health of 
miners should be the priority and we should not lose sight of that 
priority.
                                 ______
                                 
    [Questions submitted for the record and their responses 
follow:]

                                       [Via Email],
                                             U.S. Congress,
                                 Washington, DC, February 26, 2010.
Hon. Mary Lucille Jordan, Chairman,
Federal Mine Safety and Health Review Commission, 601 New Jersey 
        Avenue, NW, Washington, DC.
    Dear Chairman Jordan: Thank you for testifying at the Committee's 
hearing, ``Reducing the Growing Backlog of Contested Mine Safety 
Cases'' held on Tuesday, February 23, 2010.
    I have a few additional questions to which I would like you to 
provide written responses for the hearing record:
    1. What is the total value of the penalties currently being 
contested by mine operators (i.e., the total dollar value of all 
penalties included in the Review Commission's backlog of approximately 
16,000 cases)?
    2. How does the current amount under contest compare to the 
aggregate amount of the Review Commission's budget since the date of 
the Review Commission was created in 1977?
    3. By what amount would the Review Commission's budget have to be 
increased annually, including the costs of additional support staff 
(such as law clerks and administrative overhead), if additional 
Administrative Law Judges (ALJs) were added to its staff as follows:
    a. If four (4) ALJs were added?
    b. If six (6) ALJs were added?
    c. If eight (8) ALJs are added?
    d. If twelve (12) ALJs are added?
    4. Has the Mine Act's objective of deterring safety violations been 
weakened because the Review Commission's backlog has delayed the 
collection of penalties and the resolution of contested cases in a 
reasonable period of time?
    Please send your written response to the Committee by COB on 
Tuesday, March 9th--the date on which the hearing record will close. If 
you have any questions, please contact the Committee at 202-225-3725. 
Once again, we greatly appreciate your testimony at this hearing.
            Sincerely,
                                   George Miller, Chairman.
                                 ______
                                 
  Federal Mine Safety and Health Review Commission,
                       601 New Jersey Ave., NW, Suite 9500,
                                     Washington, DC, March 4, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, U.S. House of Representatives, 2181 
        Rayburn House Office Building, Washington, DC.
    Dear Mr. Chairman: I very much appreciated the opportunity to 
testify at the Committee's hearing ``Reducing the Growing Backlog of 
Contested Mine Safety Cases,'' which was held on February 23, 2010. I 
am now providing responses for the hearing record to the questions 
posed in your letter to me dated February 26, 2010.
    1. What is the total value of the penalties currently being 
contested by mine operators (i.e., the total dollar value of all 
penalties included in the Review Commission's backlog of approximately 
16,000 cases)?
    The total value of the penalties currently being contested by mine 
operators is approximately $195 million. That figure represents the 
amount proposed by the Secretary.
    2. How does the current amount under contest compare to the 
aggregate amount of the Review Commission's budget since the date the 
Review Commission was created in 1977?
    The aggregate amount of the Review Commission's budget since 1978 
(the first date for which figures are available) through 2010 is $186 
million.
    3. By what amount would the Review Commission's budget have to be 
increased annually, including the costs of additional support staff 
(such as law clerks and administrative overhead), if additional 
Administrative Law Judges (ALJs) were added to its staff [assumed to be 
currently 14 judges] as follows:
    a. If four (4) ALJs were added? [for a total of 18 judges]: $ 2.747 
million
    b. If six (6) ALJs were added? [for a total of 20 judges]: $ 3.547 
million
    c. If eight (8) ALJs are added? [for a total of 22 judges]: $ 4.347 
million
    d. If twelve (12) ALJs are added? [for a total of 26 judges]: $ 
5.947 million
    4. Has the Mine Act's objective of deterring safety violations been 
weakened because the Review Commission's backlog has delayed the 
collection of penalties and the resolution of contested cases in a 
reasonable period of time?
    One of Congress' basic premises in enacting the Mine Act was that 
penalties should be collected as close in time to the violation as 
possible. To the extent this is delayed, it undermines the deterrent 
value of the penalty. Also, we recognize that several important 
enforcement provisions of the Mine Act, such as pattern of violations, 
depend upon a determination of an operator's history, and these 
provisions are not applicable until the violation becomes final, which 
occurs only at the completion of the Commission's review process. Thus, 
if case decisions are delayed, the ability of MSHA to effectively 
enforce the Act may be inhibited.
    Thank you for the opportunity to provide supplemental information 
to the hearing record.
            Sincerely,
                                            Mary Lu Jordan,
                                                          Chairman.
                                 ______
                                 
                               [Via Email and Fax],
                                             U.S. Congress,
                                 Washington, DC, February 26, 2010.
Hon. Joe Main, Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of 
        Labor, 200 Constitution Avenue, NW, Washington, DC.
    Dear Assistant Secretary Main: Thank you for testifying at the 
Committee's hearing, ``Reducing the Growing Backlog of Contested Mine 
Safety Cases'' held on Tuesday, February 23, 2010.
    I have a few additional questions to which I would like you to 
provide written responses for the hearing record:
    1. What was the Mine Safety and Health Administration's (MSHA) 
actual costs and staffing in FY 09 to support the disposition of 
contested cases before the Federal Mine Safety and Health Review 
Commission (Review Commission)? What are the expected FY 10 costs and 
staffing to support the disposition of contested cases before the 
Review Commission?
    2. What was the Department of Labor's actual costs and staffing for 
the Office of the Solicitor to work on contested MSHA cases for FY 09? 
What are the expected costs for FY 10?
    3. During the hearing, you noted that 40 companies are responsible 
for 80 percent of the citations contested. Please provide a list of 
these companies, including the name of the parent companies, the states 
in which they are located, their subsidiaries, the number of contested 
citations, and the names and types of their mines.
    4. Would MSHA support the idea of a legislative change to allow the 
agency to assess and collect pre-judgment interest from mine operators 
on penalties?
    5. In the increase provided to DOL in its FY 2010 budget for the 
Office of the Solicitor, how much of the additional funds provided will 
be used to hire new staff for the Office of the Solicitor to work on 
MSHA cases? Will this be sufficient to support the addition of 4 ALJs 
at the Review Commission as proposed in the President's budget request?
    6. In your testimony, you stated that MSHA plans to reinstate the 
pre-contest conferences with mine operators. Do you expect a reduction 
in the number of contested cases from the reinstatement of these pre-
penalty conferences over a 1 year period? What percent reduction do you 
anticipate?
    7. What kinds of contests will be reduced from pre-penalty 
contests?
    Please send your written response to the Committee by COB on 
Tuesday, March 9th--the date on which the hearing record will close. If 
you have any questions, please contact the Committee at 202-225-3725. 
Once again, we greatly appreciate your testimony at this hearing.
            Sincerely,
                                   George Miller, Chairman.
                                 ______
                                 
                               [Via Email and Fax],
                                             U.S. Congress,
                                     Washington, DC, March 5, 2010.
Hon. Joe Main, Assistant Secretary,
Occupational Safety and Health Administration, U.S. Department of 
        Labor, 200 Constitution Avenue, NW, Washington, DC.
    Dear Assistant Secretary Main: Thank you for testifying at the 
Committee's hearing, ``Reducing the Growing Backlog of Contested Mine 
Safety Cases'' held on Tuesday, February 23, 2010.
    Committee Members had additional questions for which they would 
like written responses from you for the hearing record.
    Congressman Kline asks the following questions:
    1. How many citations are in the system awaiting an enhanced safety 
and health conference?
    2. Can you provide this information by MSHA district and in date 
order with the oldest citation in the district conference backlog?
    3. When do you anticipate the backlogged cases entering the 
conference process?
    4. Has MSHA Headquarters established a benchmark time period for a 
conference to be held from a date certain once it is placed into the 
system until the conference is held?
    Please send your written response to the Committee by COB on 
Tuesday, March 9th--the date on which the hearing record will close. If 
you have any questions, please contact the Committee at 202-225-3725. 
Once again, we greatly appreciate your testimony at this hearing.
            Sincerely,
                                   George Miller, Chairman.
                                 ______
                                 

     Responses From Mr. Main to Questions Submitted for the Record

    1. What was the Mine Safety and Health Administration's (MSHA) 
actual costs and staffing in FY 09 to support the disposition of 
contested cases before the Federal Mine Safety and Health Review 
Commission (Review Commission)? What are the expected FY 10 costs and 
staffing to support the disposition of contested cases before the 
Review Commission?

    Answer: In FY 2009, MSHA spent approximately $7 million and 53 FTE 
in support of adjudicating contested cases before the Federal Mine 
Safety and Health Review Commission (Commission). With the current 
process unchanged, MSHA estimates the cost of this support to increase 
to $7.9 million and 61 FTE in FY 2010. This cost estimate is based upon 
wide array of support functions and vastly different compensation 
rates. For instance, a Conference Litigation Officer (CLR) has an 
annual cost of roughly $150,000 while the cost of an administrative 
support staffer is approximately $75,000.

    2. What was the Department of Labor's actual costs and staffing for 
the Office of the Solicitor to work on contested MSHA cases for FY 09? 
What are the expected costs for FY 10?

    Answer: The cost for the Office of the Solicitor (SOL) to handle 
work on contested MSHA cases for FY 2009 was approximately $9,600,000. 
In FY 2009, SOL utilized a total of approximately 58 FTE to handle 
contested MSHA cases. In FY 2010, based on actual data from the first 
quarter of the fiscal year, SOL estimates that it will devote 
approximately $12,100,000 to handling contested MSHA cases, using 
approximately 72 FTE.

    3. During the hearing, you noted that 40 companies are responsible 
for 80 percent of the citations contested. Please provide a list of 
these companies, including the name of the parent companies, the states 
in which they are located, their subsidiaries, the number of contested 
citations, and the names and types of their mines.

    Answer: I believe you are referring to my testimony in response to 
a question where I stated that over 40 companies have contested 80% or 
more of the violations issued to them. That data is attached. As I also 
noted in my written testimony, 10 companies are responsible for almost 
40% of all contested cases pending before the Commission. I have also 
attached a report with the requested information for the 40 companies 
with the largest number of contested citations in CY 2009, which 
includes the 10 companies I referred to in my testimony. As you can 
see, these 40 companies accounted for 57.8% of violations contested in 
CY 2009 and have contested 65.5% of proposed penalty amounts.

    4. Would MSHA support the idea of a legislative change to allow the 
agency to assess and collect pre-judgment interest from mine operators 
on penalties?

    Answer: MSHA has considered this idea but would need additional 
information about the framework and scope of contemplated legislation. 
For instance, because the vast majority of cases currently settle prior 
to trial, legislation that awarded prejudgment interest if the 
government prevails on the merits of a contested citation would only 
apply to the less than 5% of citations in which MSHA prevails at trial 
or obtains a default judgment that has not been pre-paid. Under the 
current system and with the current number of cases that proceed to 
trial, this type of legislative change would not have a significant 
impact.
    Prejudgment interest could, however, affect settlement decision-
making in that it would remove the financial incentive for an operator 
who contests a large number of meritorious citations simply to delay 
payment. It is difficult to determine the extent to which the time-
value of money is a motivating factor in an operator's behavior, or how 
prejudgment interest would affect that behavior. Currently MSHA settles 
contested cases for an average reduction greater than the amount that 
an operator would be required to pay in pre-penalty interest. 
Consequently, while prejudgment interest could reduce the financial 
incentive to contest, it would not tip the balance in favor of not 
contesting for operators who believe they can negotiate a penalty 
reduction under the current system.

    5. In the increase provided to DOL in its FY 2010 budget for the 
Office of the Solicitor, how much of the additional funds provided will 
be used to hire new staff for the Office of the Solicitor to work on 
MSHA cases? Will this be sufficient to support the additional of 4 ALJs 
at the Review Commission as proposed in the President's budget request?

    Answer: SOL estimates that approximately $2,500,000 in additional 
resources and approximately 14 additional FTE will be used to handle 
Commission cases in FY 2010. Last year, SOL provided to the Committee 
estimates of the number of FTE that would be necessitated by additional 
Commission ALJ's. However, it is important to note that those estimates 
were based on the current case handling system, which does not take 
into account any of the significant case handling and processing 
reforms and other management changes at the Commission that are being 
actively considered. Furthermore, those estimates were for all of FY 
2010. SOL cannot at this point estimate the impending increase in 
workload that will be generated in the remainder of FY 2010 by 4 
additional Commission ALJ's because of a number of variables: 1) when 
will each judge arrive, 2) whether the work pattern of the Commission 
will be redistributed so that there is more work done that does not 
require SOL involvement, 3) whether other case-processing reforms will 
be put into practice during FY 10, and 4) case processing reforms and 
other management changes that the Commission is actively considering. 
SOL will distribute its FY10 appropriated resources to handle the 
Commission-related cases.

    6. In your testimony, you stated that MSHA plans to reinstate the 
pre-contest conferences with mine operators. Do you expect a reduction 
in the number of contested cases from the reinstatement of these pre-
penalty conferences over a 1 year period? What percent reduction do you 
anticipate?

    Answer: It was not my intent to suggest that MSHA will return the 
conferencing processes of the past. MSHA does not intend to reinstate 
the pre-contest system in its previous form. At its core, the 
conferencing will have one thing in common with the previous system--it 
will occur prior to an operator being required to contest proposed 
penalties, so that resolvable cases do not needlessly enter the 
contested case backlog where settlements need to be approved by the 
Commission and take considerable time to resolve. Beyond that, the 
specific procedures are still under development based on a review of 
what has worked previously and what has not. Any new procedure will be 
subject to ongoing review and evaluation, and will be amended to 
reflect experience and maximize the effectiveness of the process.
    While we expect a reduction in the number of contested cases from 
the use of pre-penalty conferencing, it is difficult to predict a 
percentage reduction given all the possible variables introduced by the 
various reforms under consideration by both MSHA and the Commission.

    7. What kind of contests will be reduced from pre-penalty 
conferences?

    Answer: We anticipate that cases resolved in the pre-penalty 
conferencing MSHA is developing would be those in which the operator 
presents a legal position or evidence demonstrating that, in light of 
the record as a whole, the citation in question is not justified or is 
not adequately supported by evidence. Other types of pre-contest 
resolutions would be subject to guidelines MSHA plans to develop.
                                 ______
                                 
    [Additional materials submitted from Mr. Main follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        

                                COMPANIES CONTESTING LARGEST NUMBER OF CITATIONS
                                              [Calendar Year 2009]
----------------------------------------------------------------------------------------------------------------
                                                                                                        Company
                                                                                            Company     Penalty
                                                                                          Violations    Dollars
                                                                 Number of    Proposed     Contested   Contested
                            Controlling Company                 Violations     Penalty        as          as
                                                                 Contested     Amounts    Percentage  Percentage
                                                                              Contested     of All      of All
                                                                                          Violations    Dollars
                                                                                           Contested   Contested
----------------------------------------------------------------------------------------------------------------
             All Mining.......................................      46,822   $93,306,588  ..........  ..........
----------------------------------------------------------------------------------------------------------------
    C02508   Massey Energy Company............................       3,741   $10,486,334        8.0%       11.2%
    C00692   CONSOL Energy Inc................................       2,173    $7,324,052        4.6%        7.8%
    C13408   Robert E Murray..................................       1,963    $2,349,683        4.2%        2.5%
   0071611   Patriot Coal Corporation.........................       1,509    $3,530,080        3.2%        3.8%
    C15833   Peabody Energy...................................       1,322    $8,639,575        2.8%        9.3%
    C07082   Richard Gilliam..................................       1,243    $1,492,963        2.7%        1.6%
    C13562   James River Coal Company.........................       1,199    $1,603,334        2.6%        1.7%
   0041211   Alpha Natural Resources LLC......................       1,197    $1,394,723        2.6%        1.5%
    C15455   Alliance Resource Partners LP....................       1,116    $2,099,117        2.4%        2.2%
    C00015   Ben Bennett......................................         890      $450,855        1.9%        0.5%
    C04355   James C Justice II...............................         808      $951,236        1.7%        1.0%
    M00106   Cleveland-Cliffs Inc.............................         802    $1,365,155        1.7%        1.5%
    C11194   James H Booth....................................         616      $919,458        1.3%        1.0%
   0085759   Mechel Oao.......................................         524      $545,498        1.1%        0.6%
    C07485   J Clifford Forrest III...........................         506      $726,866        1.1%        0.8%
   0045307   International Coal Group Inc (ICG)...............         432    $1,994,416        0.9%        2.1%
   0069031   International Resources LLC......................         387      $836,211        0.8%        0.9%
   0059869   Coalfield Transport Inc..........................         377    $1,532,049        0.8%        1.6%
    M02063   Lafarge S A......................................         375      $797,654        0.8%        0.9%
   0041669   Wexford Capital LLC..............................         366    $1,013,846        0.8%        1.1%
    M09149   Cemex S A........................................         365      $591,368        0.8%        0.6%
    C15843   Citicorp Venture Capital Ltd.....................         362      $443,365        0.8%        0.5%
   0059129   Brody Trust......................................         358      $941,087        0.8%        1.0%
    M00004   Heidelberg Cement AG.............................         352      $690,650        0.8%        0.7%
   0066691   Armstrong Energy Corporation LLC.................         345      $529,971        0.7%        0.6%
    C15194   Douglas M Epling.................................         344      $489,002        0.7%        0.5%
   0044281   Foundation Coal Corporation......................         337    $1,250,425        0.7%        1.3%
    M06246   Barrick Gold Corp................................         287      $440,929        0.6%        0.5%
    M00165   Newmont Mining Corp..............................         278      $802,317        0.6%        0.9%
    M00452   Rogers Group Inc.................................         258      $202,248        0.6%        0.2%
    C00992   Walter Energy Incorporated.......................         250      $945,616        0.5%        1.0%
    M06982   Buzzi Unicem S P A...............................         247      $295,758        0.5%        0.3%
    M11763   Imerys S A.......................................         242      $477,250        0.5%        0.5%
    C14311   Donald Blankenberger.............................         240    $1,176,146        0.5%        1.3%
    M13214   Cementos Portland Valderrivas S A................         216      $397,432        0.5%        0.4%
   0071891   Vulcan Materials Company.........................         215      $101,309        0.5%        0.1%
    M00199   Italcementi Spa..................................         213      $200,797        0.5%        0.2%
    C00286   TECO Energy Inc..................................         211      $371,078        0.5%        0.4%
   0041055   James H Booth....................................         203      $123,742        0.4%        0.1%
   0085453   Metinvest B V....................................         203      $288,185        0.4%        0.3%
----------------------------------------------------------------------------------------------------------------
             Total for 40 Companies Contesting the Most             27,072   $60,811,780       57.8%       65.2%
              Citations.......................................
----------------------------------------------------------------------------------------------------------------


                                             DETAIL SUMMARY BY MINE
----------------------------------------------------------------------------------------------------------------
                                                            No. of        Penalty       No. of        Penalty
     Company/Mine Operator/Mine Name/Mine Type/State      Violations      Dollars     Violations      Dollars
                                                           Assessed      Assessed      Contested     Contested
----------------------------------------------------------------------------------------------------------------
Alliance Resource Partners LP...........................       3,616      $2,820,486       1,116      $2,099,117
Excel Mining Llc........................................         962        $618,506         228        $438,463
Mine No 2; Underground Coal; State--KY..................          35         $34,119          18         $30,205
Mine No 3; Underground Coal; State--KY..................         524        $290,689         114        $197,433
Preparation Plant; Facility Coal; State--KY.............          31          $9,343           3          $1,830
Van Lear Mine; Underground Coal; State--KY..............         372        $284,355          93        $208,995
Gibson County Coal LLC..................................         447        $676,180         157        $585,858
Gibson Mine; Underground Coal; State--IN................         447        $676,180         157        $585,858
Hopkins County Coal Llc.................................         438        $185,995         187        $135,431
East Volunteer; Facility Coal; State--KY................          15          $1,804           3            $452
Elk Creek Mine; Underground Coal; State--KY.............         405        $181,761         176        $133,625
Smith Mine; Surface Coal; State--KY.....................          16          $2,230           8          $1,354
West Volunteer; Surface Coal; State--KY.................           2            $200
MC Mining LLC...........................................          21          $2,892
Preparation Plant; Facility Coal; State--KY.............          21          $2,892
Mettiki Coal LLC........................................          20          $2,377
Mettiki General; Facility Coal; State--MD...............          20          $2,377
Mettiki Coal WV, LLC....................................         218         $87,390          13         $13,839
Mountain View Mine; Underground Coal; State--WV.........         218         $87,390          13         $13,839
River View Coal LLC.....................................          15          $1,981           6          $1,005
River View Facilities; Facility Coal; State--KY.........           5            $576           1            $176
River View Mine; Underground Coal; State--KY............          10          $1,405           5            $829
Tunnel Ridge, LLC.......................................           6            $839           1            $176
Tunnel Ridge Mine; Underground Coal; State--WV..........           6            $839           1            $176
Warrior Coal LLC........................................         402        $231,715         107        $144,646
Cardinal; Underground Coal; State--KY...................         386        $218,075         102        $132,269
Warrior Preparation Plant; Facility Coal; State--KY.....          16         $13,640           5         $12,377
Webster County Coal Llc.................................         675        $712,592         265        $577,746
Dotiki Mine; Underground Coal; State--KY................         675        $712,592         265        $577,746
White County Coal, LLC..................................         412        $300,019         152        $201,953
Pattiki; Underground Coal; State--IL....................         412        $300,019         152        $201,953
Alpha Natural Resources LLC.............................       3,207      $1,968,873       1,197      $1,394,723
AMFIRE Mining Company LLC...............................         323        $235,164         181        $207,405
Armstrong Co Surface; Surface Coal; State--PA...........           2          $1,126           1          $1,026
Brockway Tipple; Facility Coal; State--PA...............           1            $100
Cambria Pitt 001; Surface Coal; State--PA...............           1            $176
Clearfield Co. Strips; Surface Coal; State--PA..........           3          $1,504           1          $1,304
Clymer Prep Plant; Facility Coal; State--PA.............           2            $276
Dora 8; Underground Coal; State--PA.....................          57         $49,738          23         $43,210
Gillhouser Run Mine; Underground Coal; State--PA........          41         $20,939          21         $18,323
Madison Mine; Underground Coal; State--PA...............          98         $74,292          62         $68,448
Nolo; Underground Coal; State--PA.......................          76         $60,712          48         $51,867
Ondo Extension Mine; Underground Coal; State--PA........          41         $26,038          24         $22,964
Portage Plant; Facility Coal; State--PA.................           1            $263           1            $263
Black Dog Coal Corporation..............................          46         $13,671           8          $7,589
No 2; Underground Coal; State--VA.......................          46         $13,671           8          $7,589
Brooks Run Mining Company LLC...........................         536        $332,987         342        $307,042
Bens Creek No 1 Mine; Underground Coal; State--WV.......          59          $8,188          27          $4,124
Brooks Run Processing Plant No 1; Facility Coal; State--           5            $728           1            $176
 WV.....................................................
Cucumber Mine; Underground Coal; State--WV..............         164        $216,929         150        $214,161
Mine No 5; Underground Coal; State--WV..................          23          $4,928           4          $1,507
Poplar Ridge No 1 Deep Mine; Underground Coal; State--WV          60         $17,773          28         $14,158
Saylor Mine; Underground Coal; State--WV................          31          $3,417           6            $841
Seven Pines; Surface Coal; State--WV....................           7            $762           1            $100
War Branch No 1 Mine; Underground Coal; State--WV.......          61         $34,477          58         $33,906
Wyoming No 1; Underground Coal; State--WV...............          36          $9,777          12          $6,338
Wyoming No 2; Underground Coal; State--WV...............          90         $36,008          55         $31,731
Cobra Natural Resources LLC.............................         240        $152,091         101        $112,835
Black Bear Preparation Plant; Facility Coal; State--WV..          38          $6,509
Mountaineer Alma A Mine; Underground Coal; State--WV....         197        $143,765          98        $111,218
Plant #1; Facility Coal; State--WV......................           5          $1,817           3          $1,617
Coral Energy Services LLC...............................           1            $585           1            $585
Coral Energy; Facility Coal; State--PA..................           1            $585           1            $585
Cumberland Coal Resources, LP...........................          77         $54,902          20         $34,104
Cumberland Mine; Underground Coal; State--PA............          77         $54,902          20         $34,104
Dickenson-Russell Coal Company, LLC.....................         640        $368,023         181        $211,654
Cherokee Mine; Underground Coal; State--VA..............         238        $190,306          97        $125,198
Laurel Mountain; Underground Coal; State--VA............         230        $101,190          31         $39,833
Mc Clure River Plant; Facility Coal; State--VA..........          20          $3,751           4          $1,449
Moss #3 Plant; Facility Coal; State--VA.................          14          $2,014
Roaring Fork No 4; Underground Coal; State--VA..........         138         $70,762          49         $45,174
Emerald Coal Resources LP...............................          98         $90,629          49         $81,062
Emerald Mine No 1; Underground Coal; State--PA..........          98         $90,629          49         $81,062
Enterprise Mining Company LLC...........................         313        $158,763          43         $67,121
Big Branch West Surface Mine; Surface Coal; State--KY...          12          $2,175
Big Branch; Surface Coal; State--KY.....................           9          $1,537
Mine #8; Underground Coal; State--KY....................         158         $99,592          40         $65,566
Mine #9A; Underground Coal; State--KY...................         119         $53,113           1          $1,203
Pioneer Preparation Plant; Facility Coal; State--KY.....          12          $2,046           2            $352
Roxana Prep Plant; Facility Coal; State--KY.............           3            $300
Gallatin Materials LLC..................................           1            $100
Mississippi Lime Company--Verona Plant; Facility Stone;            1            $100
 State--KY..............................................
Herndon Processing Company LLC..........................           1            $100
Keystone No 2 Plant; Facility Coal; State--WV...........           1            $100
Kepler Processing Company LLC...........................          15          $1,748
Kepler No. 1 Prep Plant; Facility Coal; State--WV.......          15          $1,748
Kingston Mining Inc.....................................          52         $24,517          17         $18,414
Kingston No 1; Underground Coal; State--WV..............          21          $6,633           3          $3,314
Kingston No. 2; Underground Coal; State--WV.............          31         $17,884          14         $15,100
Kingston Processing Inc.................................          11          $6,197           6          $2,877
Kingston Plant; Facility Coal; State--WV................          11          $6,197           6          $2,877
Kingwood Mining Company LLC.............................          71         $50,132          29         $41,162
Whitetail Kittanning Mine; Surface Coal; State--WV......          67         $49,247          28         $40,577
Whitetail Preparation Facility; Facility Coal; State--WV           4            $885           1            $585
Litwar Processing Company, LLC..........................           4            $563           2            $363
Lick Branch Impoundment; Surface Coal; State--WV........           2            $363           2            $363
Litwar Preparation Plant; Facility Coal; State--WV......           2            $200
Paramont Coal Company Virginia, LLC.....................         429        $139,428          89         $62,920
88 Strip; Surface Coal; State--VA.......................           9          $1,753           2            $685
Deep Mine #25; Underground Coal; State--VA..............          82         $45,348           7         $14,145
Deep Mine #26; Underground Coal; State--VA..............         221         $69,445          58         $39,814
Deep Mine #35; Underground Coal; State--VA..............          69         $11,955          15          $4,809
Deep Mine 37; Underground Coal; State--VA...............          16          $3,072           6          $2,055
Deep Mine 41; Underground Coal; State--VA...............           6            $600
Lovers Gap #3; Surface Coal; State--VA..................           9          $3,112           1          $1,412
Red Onion Surface Mine; Surface Coal; State--VA.........           4          $2,475
South Fork; Surface Coal; State--VA.....................           1            $100
Toms Creek Complex; Facility Coal; State--VA............          12          $1,568
Premium Energy LLC......................................          48         $56,201          45         $55,794
Mine No 1; Surface Coal; State--WV......................          48         $56,201          45         $55,794
RAG COAL WEST INCORPORATED..............................          20          $6,283           1          $1,530
Belle Ayr Mine; Surface Coal; State--WY.................          18          $5,869           1          $1,530
Eagle Butte Mine; Surface Coal; State--WY...............           2            $414
Rivereagle Corporation..................................           1            $100
Rivereagle Corporation; Facility Coal; State--KY........           1            $100
Riverside Energy Company, LLC...........................           1            $100
Bens Creek No 1 Mine; Underground Coal; State--WV.......           1            $100
Rockspring Development Inc..............................         210        $238,623          71        $158,991
Camp Creek Mine; Underground Coal; State--WV............         201        $233,694          67        $155,158
Camp Creek Processing; Facility Coal; State--WV.........           9          $4,929           4          $3,833
Simmons Fork Mining Inc.................................           3            $452
Paynter Branch Surface Mine; Surface Coal; State--WV....           3            $452
Twin Star Mining Inc....................................          45          $7,813
No 1 Loading Dock; Facility Coal; State--VA.............          26          $4,023
No 2 Surface; Surface Coal; State--VA...................          19          $3,790
White Flame Energy, Inc.................................          21         $29,701          11         $23,275
No 9 Surface; Surface Coal; State--WV...................          21         $29,701          11         $23,275
Armstrong Energy Corporation LLC........................         538        $575,131         345        $529,971
Armstrong Coal Company, Inc.............................         538        $575,131         345        $529,971
Armstrong Prep and Dock Facility; Facility Coal; State--          10          $1,984           4          $1,384
 KY.....................................................
Big Run Mine; Underground Coal; State--KY...............         411        $549,776         305        $515,978
Eastfork Surface Mine; Surface Coal; State--KY..........           4          $1,712           1          $1,412
Midway Coal Handling Facility; Facility Coal; State--KY.          16          $1,788           4            $538
Midway Mine; Surface Coal; State--KY....................          15          $3,168           2            $568
Parkway Mine Surface Facilities; Facility Coal; State--            5            $624           3            $424
 KY.....................................................
Parkway Mine; Underground Coal; State--KY...............          77         $16,079          26          $9,667
Barrick Gold Corp.......................................         499        $608,022         287        $440,929
Barrick Gold U S Inc....................................          33         $34,420           4          $6,913
Bald Mountain Mine; Surface Metal; State--NV............          33         $34,420           4          $6,913
Barrick Goldstrike Mines Inc............................         194        $272,916         173        $240,550
Goldstrike Mine; Surface Metal; State--NV...............          72         $46,213          72         $46,213
Meikle Mine; Underground Metal; State--NV...............          84        $218,300          64        $186,034
Mill/Autoclave Operations; Facility Metal; State--NV....          34          $6,103          33          $6,003
Roaster Operations; Facility Metal; State--NV...........           4          $2,300           4          $2,300
Barrick Turquoise Ridge Incorporated....................         151        $219,035          57        $137,811
GETCHELL MINE; Underground Metal; State--NV.............           3            $300
Turquoise Ridge Mine; Underground Metal; State--NV......         148        $218,735          57        $137,811
CORTEZ JOINT VENTURE....................................          84         $67,723          42         $53,790
BARRICK CORTEZ UNDERGROUND; Underground Metal; State--NV          23          $3,891           9          $2,126
Barrick Cortez; Surface Metal; State--NV................          61         $63,832          33         $51,664
Golden Sunlight Mines Inc...............................          23          $8,704          11          $1,865
Golden Sunlight Mine Inc; Surface Metal; State--MT......          23          $8,704          11          $1,865
Homestake Mining Company of California..................          13          $5,124
Ruby Hill Mine; Surface Metal; State--NV................          13          $5,124
Pinson Mining Company...................................           1            $100
Pinson Underground; Underground Metal; State--NV........           1            $100
Ben Bennett.............................................       1,169        $483,894         890        $450,855
Left Fork Mining Co.....................................         538        $214,218         340        $190,035
Prep Plant; Facility Coal; State--KY....................          50         $14,540          41         $13,640
Straight Creek #1 Mine; Underground Coal; State--KY.....         488        $199,678         299        $176,395
Manalapan Mining........................................         631        $269,676         550        $260,820
Cm&E #3; Surface Coal; State--KY........................          31         $10,454          21          $9,454
P-1; Underground Coal; State--KY........................         190         $57,757         173         $56,040
Prep Plant; Facility Coal; State--KY....................          26          $4,008          24          $3,808
RB #10; Underground Coal; State--KY.....................          46         $13,650          40         $13,050
RB #11; Underground Coal; State--KY.....................           6            $897           6            $897
RB #12; Underground Coal; State--KY.....................         157         $69,320         140         $66,932
RB #4; Underground Coal; State--KY......................          17          $4,770          14          $4,470
RB #5; Underground Coal; State--KY......................         158        $108,820         132        $106,169
Brody Trust.............................................         533        $975,194         358        $941,087
Brody Mining LLC........................................         533        $975,194         358        $941,087
Brody Mine No 1; Underground Coal; State--WV............         533        $975,194         358        $941,087
Buzzi Unicem S P A......................................         375        $336,420         247        $295,758
Alamo Cement Company Ltd................................          13          $1,350          11          $1,150
1604 QUARRY & PLANT; Facility Stone; State--TX..........          13          $1,350          11          $1,150
Alamo Concrete Products Ltd.............................          20          $3,365          13          $2,638
Barrett Base Plt; Surface Stone; State--TX..............           4            $427
SOUTH-TEX QUARRY; Surface SandAndGravel; State--TX......           6          $1,668           6          $1,668
VARMICON QUARRY; Surface Stone; State--TX...............           5            $590           2            $290
WEIR PLANT; Surface Stone; State--TX....................           5            $680           5            $680
Buzzi Unicem USA........................................         175        $168,073         163        $164,591
Bennett's Lake Quarry; Surface Stone; State--TN.........           2          $1,080
INDEPENDENCE QUARRY & MILL; Facility Stone; State--KS...           1            $308
Selma Plant Quarry & Mill; Facility Stone; State--MO....         154        $161,063         154        $161,063
Signal Mountain Cement Co; Facility Stone; State--TN....          18          $5,622           9          $3,528
Buzzi Unicem USA (Mid-Atlantic) Inc.....................          13          $3,444
Hercules Cement LP; Facility Stone; State--PA...........          13          $3,444
Lone Star Industries Inc................................         150        $159,107          56        $126,298
Lone Star Industries; Facility Stone; State--IN.........          42         $41,333          16         $30,680
LONE STAR PRYOR PLT MILL & QY; Surface Stone; State--OK.          35         $13,531          23          $4,947
Lone Star Quarry & Mill; Facility Stone; State--MO......           6         $70,517           1         $70,000
MARYNEAL QUARRY AND MILL; Facility Stone; State--TX.....          64         $23,688          15         $10,871
Oglesby Cement Plant; Facility Stone; State--IL.........           3         $10,038           1          $9,800
VARMICON PARTNERSHIP, Ltd...............................           4          $1,081           4          $1,081
VARMICON QUARRY; Surface Stone; State--TX...............           4          $1,081           4          $1,081
Cementos Portland Valderrivas S A.......................         303        $477,163         216        $397,432
Dragon Products Company, LLC............................          90         $63,992          54         $46,744
MADAWASKA PLANT; Surface SandAndGravel; State--ME.......          16          $3,102          16          $3,102
THOMASTON CEMENT PLANT; Facility Stone; State--ME.......          74         $60,890          38         $43,642
Giant Cement Holding Co.................................         160        $342,132         153        $332,974
Giant Cement Company; Facility Stone; State--SC.........         160        $342,132         153        $332,974
Keystone Cement Company.................................          53         $71,039           9         $17,714
KEYSTONE CEMENT COMPANY; Facility Stone; State--PA......          53         $71,039           9         $17,714
Cemex S A...............................................       1,419      $1,465,826         365        $591,368
Cemex...................................................           6            $648
West Salem Aggregate; Surface SandAndGravel; State--OR..           6            $648
Cemex Puerto Rico.......................................          49        $134,993
CANTERA CANAS; Surface Stone; State--PR.................           6          $1,958
Florida Lime; Facility Stone; State--PR.................          18         $43,876
Ponce Cement Plant; Facility Stone; State--PR...........          25         $89,159
Cemex California Cement LLC.............................         130        $276,878          44        $200,084
Black Mountain Quarry; Facility Stone; State--CA........          91        $250,340          40        $194,747
Victorville Cement Plant; Facility Stone; State--CA.....          39         $26,538           4          $5,337
Cemex Construction Materials Atlantic LLC...............          30          $5,818
Bardstown Quarry; Surface Stone; State--KY..............           3            $716
Bowling Green South Quarry; Surface Stone; State--KY....           3            $338
Cumberland Quarry; Surface Stone; State--KY.............           8          $1,482
HARLAN QUARRY; Surface Stone; State--KY.................           8          $2,482
Hartford Quarry; Surface Stone; State--KY...............           2            $200
Pineville Quarry; Surface Stone; State--KY..............           6            $600
CEMEX CONSTRUCTION MATERIALS LP.........................         155         $99,816          22         $37,321
 Red Hill; Surface SandAndGravel; State--CA.............           9          $3,285
Azusa Quarry; Surface SandAndGravel; State--CA..........           6            $824
CEMEX--Paiute Pit; Surface SandAndGravel; State--NV.....          36         $35,532           9         $14,539
CEMEX--Sierra Stone Quarry; Surface SandAndGravel;                22         $25,862           8         $19,884
 State--NV..............................................
Clayton Plant; Surface Stone; State--CA.................           2            $307
Eliot Plant; Surface SandAndGravel; State--CA...........          21         $10,558
Lapis Plant; Surface SandAndGravel; State--CA...........           3          $1,771
Lemoncove Plant; Surface SandAndGravel; State--CA.......           4          $1,401
Moorpark Quarry; Surface SandAndGravel; State--CA.......           6            $627
Norman Sand Mine; Surface SandAndGravel; State--NC......          13          $4,017
Patterson Plant; Surface SandAndGravel; State--CA.......          15          $6,197           5          $2,898
Redlands Quarry; Surface SandAndGravel; State--CA.......           3            $376
Rockfield Plant; Surface SandAndGravel; State--CA.......           5          $5,067
Sunol Plant; Surface SandAndGravel; State--CA...........          10          $3,992
CEMEX Construction Materials Pacific LLC................          15          $1,909
Canby Pit; Surface Stone; State--OR.....................           3            $485
CEMEX--Sierra Stone Quarry; Surface SandAndGravel;                 6            $824
 State--NV..............................................
Everett Pit & Plant; Surface SandAndGravel; State--WA...           5            $500
Mayhew Plant; Surface SandAndGravel; State--CA..........           1            $100
CEMEX Construction Materials South LLC..................         217         $60,236          13         $18,288
CEMEX-- MCCORMICK; Surface SandAndGravel; State--AZ.....           3            $350
CEMEX--19TH AVE; Surface SandAndGravel; State--AZ.......           9          $1,719
CEMEX--59TH AVENUE; Surface SandAndGravel; State--AZ....           2            $200
CEMEX--BEELINE; Surface SandAndGravel; State--AZ........           1            $634
CEMEX--BUCKEYE; Surface SandAndGravel; State--AZ........           5            $527
CEMEX--CAMP VERDE; Surface SandAndGravel; State--AZ.....           3            $861
CEMEX--CASA GRANDE; Surface SandAndGravel; State--AZ....          14          $3,574
CEMEX--COOLIDGE; Surface SandAndGravel; State--AZ.......           7          $1,099
CEMEX--CORTARO WET; Surface SandAndGravel; State--AZ....           7          $1,961
CEMEX--GLENDALE; Surface SandAndGravel; State--AZ.......           4          $1,279
CEMEX--GLOBE/BIXBY; Surface SandAndGravel; State--AZ....           5            $517
CEMEX--GRAY MOUNTAIN; Surface Stone; State--AZ..........           2            $200
CEMEX--HWY 95; Surface SandAndGravel; State--AZ.........           8          $1,425
CEMEX--JOMAX; Surface SandAndGravel; State--AZ..........           1            $100
CEMEX--MAGUIREVILLE; Surface SandAndGravel; State--AZ...           2            $655
CEMEX--MARICOPA; Surface SandAndGravel; State--AZ.......           1            $100
CEMEX--MESA; Surface SandAndGravel; State--AZ...........           6            $688
CEMEX--NOGALES; Surface SandAndGravel; State--AZ........           3            $300
CEMEX--PIMA; Surface SandAndGravel; State--AZ...........           2            $290
CEMEX--PRESCOTT/FAIN; Surface SandAndGravel; State--AZ..          13          $3,035
CEMEX--QUEEN CREEK; Surface SandAndGravel; State--AZ....           3            $300
CEMEX--SACATON; Surface SandAndGravel; State--AZ........           3            $443
CEMEX--SHEEPHILL PLANT; Surface Stone; State--AZ........           3            $300
CEMEX--SIERRA VISTA; Surface SandAndGravel; State--AZ...           3            $327
CEMEX--SUN CITY; Surface SandAndGravel; State--AZ.......          12          $1,729
CEMEX--WEST PLANT #72; Surface SandAndGravel; State--AZ.           7          $1,008
CEMEX--WEST VALLEY; Surface SandAndGravel; State--AZ....           4            $400
CEMEX--WINKLEMAN; Surface Nonmetal; State--AZ...........           3            $362
EAST LOOP 375 SAND PLT; Surface SandAndGravel; State--TX           9          $1,916
Fort Calhoun Stone East Quarry; Surface Stone; State--NE          10          $1,396
LA LUZ PIT; Surface SandAndGravel; State--NM............           4            $490
MC KELLIGON CANYON; Surface Stone; State--TX............          35         $28,729          13         $18,288
McCombs Quarry; Surface SandAndGravel; State--TX........           9          $1,340
Rinker Materials Bullhead; Surface SandAndGravel; State--          5            $534
 AZ.....................................................
TORO QUARRY; Surface Stone; State--TX...................           5          $1,048
VADO QUARRY; Surface Stone; State--NM...................           4            $400
CEMEX INC...............................................         711        $709,027         260        $309,115
474 Sand Mine; Surface SandAndGravel; State--FL.........          13          $4,821           6          $1,853
ALICO ROAD QUARRY; Surface Stone; State--FL.............           1            $100
Balcones Plant; Facility Stone; State--TX...............           3            $424           1            $224
Balcones Quarry; Surface Stone; State--TX...............           9          $2,386
Brooksville Quarry; Surface Stone; State--FL............           2            $276
CARD SOUND QUARRY; Surface Stone; State--FL.............           4          $4,373           4          $4,373
Cemex Const Materials Atlantic, LLC; Facility Stone;               6          $2,413
 State--OH..............................................
Center Hill Mine; Surface Stone; State--FL..............          11          $1,370           4            $670
City Point Terminal; Facility Stone; State--FL..........           2            $290
Clinchfield Plant Cemex Incorporated; Facility Stone;             80         $64,512          10         $33,371
 State--GA..............................................
Davenport Sand Mine; Surface SandAndGravel; State--FL...          11          $2,202          10          $2,102
DEERFIELD SAND; Surface SandAndGravel; State--SC........           2            $216
Demopolis Plant Cemex Inc; Facility Stone; State--AL....          19         $10,894
FEC QUARRY; Surface Stone; State--FL....................          19          $4,714           7            $939
Gator Sand Mine; Surface SandAndGravel; State--FL.......           1            $100           1            $100
Inglis Quarry; Surface Stone; State--FL.................           1            $100
Jim Houk Mine #1; Underground Stone; State--PA..........          80         $60,145          25         $22,430
Knoxville Cement Plant Cemex Inc; Facility Stone; State--         84        $259,712           1         $31,988
 TN.....................................................
Kosmos Cement Battletown Quarry; Surface Stone; State--            5            $538
 KY.....................................................
KOSMOS CEMENT CO.; Facility Stone; State--KY............          12          $3,619           1            $745
Krome Quarry; Surface Stone; State--FL..................           8          $1,690           1            $334
Lake Wales Sand Mine; Surface SandAndGravel; State--FL..           1            $100           1            $100
Lyons Cement Plant Cemex Inc; Facility Stone; State--CO.          23          $2,930           3            $463
Miami Cement Plant; Facility Stone; State--FL...........         171         $99,598         157         $98,170
Odessa Cement Plant Cemex Incorporated; Facility Stone;           39         $84,040          13         $58,455
 State--TX..............................................
PALMDALE SAND MINE; Surface SandAndGravel; State--FL....          11          $1,397
Rio Colorado Materials; Surface SandAndGravel; State--TX           5            $680
S C L Quarry; Surface Stone; State--FL..................           1            $100
Tulley Mine; Surface SandAndGravel; State--FL...........           1            $100
Wampum Plant Cemex Inc.; Facility Stone; State--PA......          86         $95,187          15         $52,798
Desarrollos Multiples Insulares.........................          19        $125,928
Gravero Lirios; Surface SandAndGravel; State--PR........          19        $125,928
Florida Crushed Stone Co................................          19         $15,947           6          $5,867
Brooksville South Cement Plant; Facility Stone; State--           19         $15,947           6          $5,867
 FL.....................................................
Pacific Rock Products, LLC..............................          28         $16,681          13         $12,413
Canby Pit; Surface Stone; State--OR.....................           2            $200
English Pit; Surface SandAndGravel; State--WA...........           8          $3,428           4          $2,229
Fisher Quarry; Surface Stone; State--WA.................          14         $12,653           9         $10,184
Lewisville Pit; Surface SandAndGravel; State--WA........           3            $300
Portable Screening Plant; Surface SandAndGravel; State--           1            $100
 WA.....................................................
Rinker Materials Corp...................................           6          $2,284
Everett Pit & Plant; Surface SandAndGravel; State--WA...           2            $710
Granite Falls Quarry; Surface SandAndGravel; State--WA..           4          $1,574
Rinker Materials Of Florida Inc.........................           3            $300
474 Sand Mine; Surface SandAndGravel; State--FL.........           1            $100
Baymeadows Terminal; Surface Stone; State--FL...........           2            $200
RINKER MATERIALS WESTERN INC............................           6          $1,373
 Red Hill; Surface SandAndGravel; State--CA.............           1            $873
Cache Creek Quarry; Surface SandAndGravel; State--CA....           4            $400
Guernsey Quarry; Surface Stone; State--WY...............           1            $100
RMC Pacific Materials...................................          25         $13,988           7          $8,280
Bonny Doon Quarry; Surface Stone; State--CA.............           5          $1,938
Davenport Cement Plant; Facility Stone; State--CA.......          18         $11,850           7          $8,280
Davenport Sand Mine; Surface SandAndGravel; State--FL...           1            $100
Tulley Mine; Surface SandAndGravel; State--FL...........           1            $100
Citicorp Venture Capital Ltd............................         623        $489,000         362        $443,365
Elk Lick Energy Inc.....................................          25         $23,395          18         $22,605
Roytown Deep Mine; Underground Coal; State--PA..........          25         $23,395          18         $22,605
Pbs Coals Inc...........................................          40         $21,857          17         $16,425
Cambria Fuel Plant; Facility Coal; State--PA............           5            $674
Mine No 1; Surface Coal; State--PA......................           7         $14,599           3         $11,489
Shade Creek Plant; Facility Coal; State--PA.............          28          $6,584          14          $4,936
Quecreek Mining Inc.....................................          33         $35,904          17         $33,621
Quecreek #1 Mine; Underground Coal; State--PA...........          33         $35,904          17         $33,621
Rox Coal Inc............................................         525        $407,844         310        $370,714
Agustus; Underground Coal; State--PA....................         160        $151,245         102        $141,631
Geronimo; Underground Coal; State--PA...................          24         $19,132          11         $17,586
Horning Deep Mine; Underground Coal; State--PA..........           3            $699           1            $499
Kimberly Run; Underground Coal; State--PA...............         149         $92,178          88         $81,659
Miller Mine; Underground Coal; State--PA................          70         $57,409          34         $48,696
Quecreek #1 Mine; Underground Coal; State--PA...........          72         $45,369          47         $41,355
Roytown Deep Mine; Underground Coal; State--PA..........          47         $41,812          27         $39,288
Cleveland-Cliffs Inc....................................       1,199      $1,822,425         802      $1,365,155
Northshore Mining Company...............................         164         $26,313           3            $648
Northshore Mine; Surface Metal; State--MN...............          25          $2,922
Northshore Mining Company; Facility Metal; State--MN....         139         $23,391           3            $648
Oak Grove Resources, LLC................................         621      $1,528,735         527      $1,122,407
Concord Mine; Facility Coal; State--AL..................          34         $18,597          32         $18,397
Oak Grove Mine; Underground Coal; State--AL.............         587      $1,510,138         495      $1,104,010
Pinnacle Mining Company, LLC............................         414        $267,377         272        $242,100
Green Ridge #1 Mine; Underground Coal; State--WV........          76         $50,659          56         $47,247
Green Ridge #2; Underground Coal; State--WV.............           2            $200           2            $200
Pinnacle Mine; Underground Coal; State--WV..............         301        $211,194         201        $192,648
Pinnacle Preparation Plant; Facility Coal; State--WV....          35          $5,324          13          $2,005
Coalfield Transport Inc.................................       1,075      $1,756,684         377      $1,532,049
Big River Mining LLC....................................         676      $1,373,209         270      $1,285,385
Broad Run Mine; Underground Coal; State--WV.............         676      $1,373,209         270      $1,285,385
Clearwater Processing LLC...............................          10          $1,796           4          $1,188
Broad Run Prep Plant; Facility Coal; State--WV..........          10          $1,796           4          $1,188
Mach Mining, LLC........................................         348        $372,107         101        $244,173
Mach #1 Mine; Underground Coal; State--IL...............         348        $372,107         101        $244,173
MaRyan Mining LLC.......................................          36          $7,907
Shay #1 Mine; Underground Coal; State--IL...............          36          $7,907
M-Class Mining LLC......................................           4          $1,565           2          $1,303
MC#1 Mine; Underground Coal; State--IL..................           4          $1,565           2          $1,303
Meigs Processing LLC....................................           1            $100
Buckeye Plant; Facility Coal; State--OH.................           1            $100
CONSOL Energy Inc.......................................       6,274      $9,034,640       2,173      $7,324,052
Central Ohio Coal Company...............................           4            $400
Muskingum Mine; Surface Coal; State--OH.................           4            $400
Consol of Kentucky Inc..................................         347        $156,513          63         $76,098
Big Branch No 1 Belt Mine; Underground Coal; State--WV..          12          $2,341
Bronzite III; Underground Coal; State--WV...............          22          $4,337           1            $807
Bronzite; Underground Coal; State--WV...................          47         $25,620           5          $5,964
Jones Fork E-3; Underground Coal; State--KY.............         174         $78,851          37         $36,774
Jones Fork Prep Plant; Facility Coal; State--KY.........          14          $2,218
Miller Creek Preparation Plant #1; Facility Coal; State--         19         $13,966          10         $11,488
 WV.....................................................
Minway Surface; Surface Coal; State--WV.................           6          $1,648
MT-13/500; Surface Coal; State--WV......................          15         $21,925           9         $20,965
MT-34; Surface Coal; State--WV..........................           5          $1,109
MT-41; Underground Coal; State--WV......................          33          $4,498           1            $100
Consol Pennsylvania Coal Company........................         829      $1,113,804         278        $824,921
Bailey Mine; Underground Coal; State--PA................         528        $465,518         108        $221,531
Enlow Fork Mine; Underground Coal; State--PA............         301        $648,286         170        $603,390
Consol Pennsylvania Coal Company LLC....................          27          $9,667           5          $3,861
Bailey Mine; Underground Coal; State--PA................          22          $9,034           4          $3,753
Enlow Fork Mine; Underground Coal; State--PA............           5            $633           1            $108
Consolidation Coal Company..............................       3,649      $4,386,311       1,097      $3,321,062
Big Fork Mine; Underground Coal; State--VA..............           6            $600
Blacksville #1; Facility Coal; State--WV................           1            $100
Blacksville No 2; Underground Coal; State--WV...........         687        $535,381         216        $418,420
Buchanan Mine #1; Underground Coal; State--VA...........         843      $1,253,000         250        $879,535
Central Repair Shop; Facility Coal; State--WV...........           3            $300
Emery Mine; Underground Coal; State--UT.................         164        $238,713          72        $219,739
Ireland River Loading Facility; Facility Coal; State--WV           5            $652           2            $276
Laurel Fork Mine; Underground Coal; State--WV...........           1            $100
Loveridge No 22; Underground Coal; State--WV............         636      $1,118,904         167        $892,175
Reclamation No 061; Surface Coal; State--OH.............           1            $100
Rend Lake; Facility Coal; State--IL.....................           5          $1,213           1            $585
Robinson Run No 95; Underground Coal; State--WV.........         662        $791,370         197        $571,863
Shoemaker Mine; Underground Coal; State--WV.............         635        $445,878         192        $338,469
Eighty Four Mining Company..............................         125        $103,720          30         $61,493
Mine 84; Underground Coal; State--PA....................         125        $103,720          30         $61,493
Fola Coal Company LLC...................................         115        $101,756          27         $63,270
Bridge Fork Surface Mine No 1; Surface Coal; State--WV..           7          $2,266
Peach Orchard Prep Plant & Ld Fac; Facility Coal; State--         12          $1,734
 WV.....................................................
Surface Mine No 2; Surface Coal; State--WV..............          94         $97,556          27         $63,270
Winoc Preparation Plant; Facility Coal; State--WV.......           2            $200
Greenon Coal Company....................................           1            $100
Greenon Coal Company; Facility Coal; State--WV..........           1            $100
Island Creek Coal Company...............................           1            $100
Elk Creek Plant; Facility Coal; State--WV...............           1            $100
Keystone Coal Mining Company............................           7          $1,661
Keystone Cleaning Plant; Facility Coal; State--PA.......           7          $1,661
Little Eagle Coal Company,L.L.C.........................         107         $33,892          13         $11,168
Lick Branch Mine No 2; Underground Coal; State--WV......          11          $4,486
Little Eagle Mine No 1; Underground Coal; State--WV.....           5            $500
Rocklick Coalburg Deep Mine; Underground Coal; State--WV          91         $28,906          13         $11,168
Mc Elroy Coal Company...................................       1,021      $3,113,980         650      $2,953,800
McElroy Mine; Underground Coal; State--WV...............       1,021      $3,113,980         650      $2,953,800
Southern Ohio Coal Company..............................           1            $100
Meigs #31 Mine; Facility Coal; State--OH................           1            $100
Southern West Virginia Resources LLC....................          37         $12,336          10          $8,379
Big Branch No 1 Belt Mine; Underground Coal; State--WV..          21          $9,603          10          $8,379
Miller Creek Preparation Plant #1; Facility Coal; State--         10          $1,000
 WV.....................................................
Minway Surface; Surface Coal; State--WV.................           6          $1,733
Terry Eagle Coal Company Llc............................           3            $300
Preparation Plant No 1; Facility Coal; State--WV........           3            $300
Donald Blankenberger....................................         835      $1,711,861         240      $1,176,146
Black Panther Mining LLC................................          45         $13,541           8          $6,211
Oaktown Fuels Mine No 1; Underground Coal; State--IN....          40         $12,100           7          $5,577
Oaktown Fuels Mine No 2; Underground Coal; State--IN....           5          $1,441           1            $634
Five Star Mining Inc....................................         790      $1,698,320         232      $1,169,935
Prosperity Mine; Underground Coal; State--IN............         790      $1,698,320         232      $1,169,935
Douglas M Epling........................................         639        $619,424         344        $489,002
Legacy Resources, LLC...................................          28         $71,125          14         $56,391
Synergy Surface Mine No 1; Surface Coal; State--WV......          28         $71,125          14         $56,391
MOUNTAIN EDGE MINING, INC...............................         611        $548,299         330        $432,611
Cheylan Dock; Facility Coal; State--WV..................           1            $150
Coalburg No. 1 Mine; Underground Coal; State--WV........         222        $204,966         133        $170,562
Dorothy No 3 Mine; Underground Coal; State--WV..........         250        $241,395         159        $207,126
Sugar Maple Mine; Underground Coal; State--WV...........          73         $23,331          24          $9,253
Sweet Birch; Underground Coal; State--WV................          65         $78,457          14         $45,670
Foundation Coal Corporation.............................       1,025      $1,476,004         337      $1,250,425
Cumberland Coal Resources, LP...........................         162        $184,185          42        $151,481
Cumberland Mine; Underground Coal; State--PA............         162        $184,185          42        $151,481
Emerald Coal Resources LP...............................         232        $644,625         117        $617,855
Emerald Mine No 1; Underground Coal; State--PA..........         232        $644,625         117        $617,855
Freeport Mining, LLC....................................           1            $100
Freeport Mine; Underground Coal; State--PA..............           1            $100
Kingston Mining Inc.....................................         112         $70,902          28         $46,779
Kingston No 1; Underground Coal; State--WV..............          45         $17,452           5          $6,126
Kingston No. 2; Underground Coal; State--WV.............          67         $53,450          23         $40,653
Kingston Processing Inc.................................          19          $5,482           2          $2,335
Kingston Plant; Facility Coal; State--WV................          19          $5,482           2          $2,335
Laurel Creek Company, Inc...............................          64         $63,689
Mine No 8; Underground Coal; State--WV..................           2          $2,369
No 1; Underground Coal; State--WV.......................          31         $29,756
No 5; Underground Coal; State--WV.......................           7          $8,969
No 6; Underground Coal; State--WV.......................          24         $22,595
Odell Processing Inc....................................           4          $1,173
Dingess Processing Complex; Facility Coal; State--WV....           1            $873
Odell Processing Laurel Loadout; Facility Coal; State--            3            $300
 WV.....................................................
RAG COAL WEST INCORPORATED..............................          44         $28,267           3         $10,903
Belle Ayr Mine; Surface Coal; State--WY.................           9          $2,004
Eagle Butte Mine; Surface Coal; State--WY...............          35         $26,263           3         $10,903
Rivereagle Corporation..................................           2            $200
Rivereagle Corporation; Facility Coal; State--KY........           2            $200
Rockspring Development Inc..............................         384        $477,281         145        $421,072
Camp Creek Mine; Underground Coal; State--WV............         355        $471,354         145        $421,072
Camp Creek Processing; Facility Coal; State--WV.........          29          $5,927
Simmons Fork Mining Inc.................................           1            $100
Ewing Fork No. 1 Surface Mine; Surface Coal; State--WV..           1            $100
Heidelberg Cement AG....................................       1,429      $1,187,466         352        $690,650
Cadman (Black Diamond) Inc..............................           4          $1,048
Cadman Black Diamond; Surface SandAndGravel; State--WA..           4          $1,048
Cadman (Rock) Inc.......................................           9          $5,115
Cadman High Rock Quarry; Surface Stone; State--WA.......           5          $3,680
SKY RIVER PIT; Surface SandAndGravel; State--WA.........           4          $1,435
Cadman Inc..............................................           9          $3,884
Cadman (Redmond); Surface SandAndGravel; State--WA......           4            $599
Cadman Longview (Gold Bar) Pit; Surface SandAndGravel;             1            $100
 State--WA..............................................
North Bend; Surface Stone; State--WA....................           4          $3,185
Calaveras Materials Inc.................................          17          $4,348
Hughson Pit & Mill; Surface SandAndGravel; State--CA....           4            $978
River Rock Pit & Mill; Surface SandAndGravel; State--CA.           7          $2,669
San Andreas Plant; Surface Stone; State--CA.............           6            $701
Hanson Aggregates BMC Inc...............................         149         $54,393          52         $31,104
Berlin Plant; Surface SandAndGravel; State--NJ..........           8          $2,264           5          $1,750
Cedar Lake Plant; Surface SandAndGravel; State--NJ......           5          $1,388           2          $1,080
Dredge Thaddus Carr; Facility SandAndGravel; State--PA..           4            $400           2            $200
Lower Burrell Plant; Surface SandAndGravel; State--PA...           8          $1,299           1            $150
Newport Plant; Surface SandAndGravel; State--NJ.........          32          $7,657          20          $5,457
Ottsville Quarry; Surface Stone; State--PA..............           2            $462           1            $362
Penns Park Quarry; Surface Stone; State--PA.............           7          $3,866           5          $3,566
Rich Hill Underground Mine & Plant; Underground Stone;            16          $9,558           4          $7,448
 State--PA..............................................
Springfield Pike Mine & Plant; Underground Stone; State--         27         $13,294           2          $7,189
 PA.....................................................
Torrance Mine (UG); Underground Stone; State--PA........          11          $2,929           2            $668
Upper Township Plant; Surface SandAndGravel; State--NJ..           9          $1,440           6          $1,140
Whitney Plant (UG); Underground Stone; State--PA........          20          $9,836           2          $2,094
Hanson Aggregates Davon, LLC............................          28          $4,946           8          $2,158
AA Limestone; Surface Stone; State--KY..................           5          $1,817           1            $687
EAGLE CRUSHED STONE; Surface Stone; State--OH...........           3            $300           1            $100
HIGHLAND STONE; Surface Stone; State--OH................           8            $800           1            $100
PIKETON SAND & GRAVEL; Surface SandAndGravel; State--OH.           4            $408           1            $100
PLUM RUN STONE; Surface Stone; State--OH................           8          $1,621           4          $1,171
Hanson Aggregates Mid-Pacific, Inc......................          27          $3,988
Clayton; Surface Stone; State--CA.......................           4            $427
Marina Vista Plant; Surface SandAndGravel; State--CA....           4            $450
Oakland Marine Plant; Surface SandAndGravel; State--CA..           1            $100
Santa Margarita Quarry; Surface SandAndGravel; State--CA           5          $1,531
Sisquoc Rock Plant; Surface SandAndGravel; State--CA....          13          $1,480
Hanson Aggregates Midwest, Inc..........................         101         $18,080          22          $6,698
Angola Sand & Gravel; Surface SandAndGravel; State--IN..           3            $300
Ardmore Stone Quarry; Surface Stone; State--IN..........           4            $400
Atkins Mine; Surface Stone; State--IN...................           2            $200
Bloomville Stone Quarry; Surface Stone; State--OH.......           3            $300
Coopers Lane Mine; Surface Stone; State--IN.............           2            $200
FLEMINGSBURG QUARRY; Surface Stone; State--KY...........           8          $1,197           3            $670
Franklin Quarry & Mill; Surface Stone; State--KY........           1            $100
Harding Street Quarry--Surface; Surface Stone; State--IN           7          $1,548           5          $1,348
Harding Street Quarry-Sand & Gravel; Surface Stone;                1            $100
 State--IN..............................................
Laurel Quarry; Surface Stone; State--KY.................           9          $1,253           2            $446
Limedale Quarry; Surface Stone; State--IN...............           1            $100
Lower Huntington Quarry; Surface Stone; State--IN.......           2            $200
Milner Quarry; Surface Stone; State--IN.................           3            $300
MT. VERNON MINE & MILL; Underground Stone; State--KY....           7          $2,155
Putnamville Quarry; Surface Stone; State--IN............           3            $300
Russellville Quarry & Mill; Surface Stone; State--KY....           2          $2,229           1          $1,944
SANDUSKY QUARRY; Surface Stone; State--OH...............          11          $1,862           2            $845
Scott County Quarry; Surface Stone; State--IN...........           1            $100
SYLVANIA STONE QUARRY; Surface Stone; State--OH.........           1            $100
Tyrone Mine & Mill; Underground Stone; State--KY........           5          $1,464
Upton Quarry; Surface Stone; State--KY..................           4            $563           3            $463
Versailles Quarry; Surface Stone; State--IN.............           2            $227
Wagner Quarries; Surface Stone; State--OH...............           6            $707           4            $507
WATERVILLE STONE QUARRY; Surface Stone; State--OH.......           8          $1,675           2            $475
WOODBURN II; Surface Stone; State--IN...................           5            $500
Hanson Aggregates New York, Inc.........................          75          $9,676          12          $2,932
Clarendon; Surface SandAndGravel; State--NY.............           9            $916           2            $200
GENEVA PLANT; Surface Stone; State--NY..................           7            $754           5            $554
Honeoye Falls Plant; Surface Stone; State--NY...........           4            $400
Jamesville Plant; Surface Stone; State--NY..............           7            $700
JORDANVILLE PLANT; Surface Stone; State--NY.............           8          $1,361           2            $761
OGDENSBURG PLANT; Surface Stone; State--NY..............           4            $417
Oriskany Falls Plant; Surface Stone; State--NY..........          10          $1,534           1            $634
Phelps Mine; Surface SandAndGravel; State--NY...........           6          $1,074           1            $540
Poland Plant; Surface SandAndGravel; State--NY..........           5            $659           1            $243
Skaneateles Plant; Surface Stone; State--NY.............           6            $759
St Johnsville Plant; Surface Stone; State--NY...........           2            $217
Stafford Quarry; Surface Stone; State--NY...............           2            $385
VICTOR (P444); Surface SandAndGravel; State--NY.........           2            $200
Watertown Plant; Surface Stone; State--NY...............           3            $300
Hanson Aggregates Of Arizona, Inc.......................          39         $10,362           9          $4,100
AGUA FRIA PIT-RIVER RANCH; Surface SandAndGravel; State--          4            $400
 AZ.....................................................
Clarkdale Plant #24; Surface SandAndGravel; State--AZ...           2            $227           1            $100
Plant #35 51st Ave-Pit; Surface SandAndGravel; State--AZ           8          $4,886           3          $2,080
Yavapai Plant #22; Surface SandAndGravel; State--AZ.....          25          $4,849           5          $1,920
Hanson Aggregates Pacific Southwest Inc.................          49          $8,580           2            $351
CARROLL CANYON ROCK PLANT; Surface SandAndGravel; State--         12          $1,484
 CA.....................................................
EAGLE VALLEY QUARRY; Surface SandAndGravel; State--CA...           4            $400
EL CAJON QUARRY; Surface Stone; State--CA...............           1            $100
INLAND ROCK PLANT; Surface SandAndGravel; State--CA.....          12          $2,931
IRWINDALE ROCK PLANT; Surface SandAndGravel; State--CA..          14          $2,857           2            $351
LAKESIDE AGGREGATE PLANT; Surface SandAndGravel; State--           1            $100
 CA.....................................................
Santee Rock Plant; Surface Stone; State--CA.............           5            $708
Hanson Aggregates Pennsylvania LLC......................          34          $9,353           2            $734
Bloomsburg Quarry; Surface Stone; State--PA.............           2            $217
Curtain Gap Quarry; Surface Stone; State--PA............           1            $100
Downingtown Quarry; Surface Stone; State--PA............           4          $1,045
Glen Mills; Surface Stone; State--PA....................           5          $1,195
Lake Ariel Quarry; Surface SandAndGravel; State--PA.....           3          $1,287
Milton Plant; Surface Stone; State--PA..................           3            $300
Montoursville Sand & Gravel; Surface SandAndGravel;                1            $100
 State--PA..............................................
Oak Hall Quarry; Surface Stone; State--PA...............           2          $2,636
Pine Creek Quarry; Surface Stone; State--PA.............           8          $1,866           2            $734
SALONA PLANT; Surface Stone; State--PA..................           1            $100
Stroudsburg Quarry; Surface Stone; State--PA............           4            $507
Hanson Aggregates PMA Inc...............................           4            $799
Dredge Thaddus Carr; Facility SandAndGravel; State--PA..           1            $100
Torrance Mine (UG); Underground Stone; State--PA........           3            $699
Hanson Aggregates, LLC..................................         109         $29,376          17          $4,794
Arena Plant; Surface SandAndGravel; State--TX...........           6            $924
Brazos Plant; Surface SandAndGravel; State--TX..........           4            $400
Bridgeport Plant; Surface Stone; State--TX..............           3            $300
Bristol Sand & Gravel; Surface SandAndGravel; State--TX.           4            $400
Burnet Plant; Surface Stone; State--TX..................           1            $138
Davis Plant; Surface Stone; State--OK...................          10          $1,258           1            $100
EAGLE LAKE PLANT; Surface SandAndGravel; State--TX......           3            $317
Eagle Mills Plant; Surface SandAndGravel; State--AR.....          13          $2,411           5            $617
Honest Ridge Plant; Surface Stone; State--TX............           5            $554
LAKE BRIDGEPORT QUARRY; Surface Stone; State--TX........          11          $1,852
LITTLE RIVER PLANT; Surface SandAndGravel; State--AR....          12          $2,654           6          $1,820
Newberry Springs Plant; Surface Stone; State--CA........           3          $1,494
SERVTEX PLANT; Surface Stone; State--TX.................           7          $1,148
Spring Plant; Surface SandAndGravel; State--TX..........           1            $100
Stafford Plant; Surface SandAndGravel; State--TX........           6         $13,007           2          $1,614
WHITNEY; Surface SandAndGravel; State--TX...............          17          $1,939           1            $263
Woodlands Plant; Surface SandAndGravel; State--TX.......           3            $480           2            $380
Hanson Aggregates, Southeast............................         115         $33,614          41         $17,767
ANDERSON QUARRY; Surface Stone; State--SC...............           6            $676
Athens Quarry; Surface Stone; State--GA.................           4            $427
BREWER SAND; Surface SandAndGravel; State--SC...........           5            $734           3            $534
Crabtree Quarry; Surface Stone; State--NC...............           6          $1,187           6          $1,187
Elliott Sand & Gravel; Surface SandAndGravel; State--NC.           7          $1,116           3            $716
Fayette County Quarry; Surface Stone; State--GA.........           4            $545           1            $207
Gainesville Quarry; Surface Stone; State--GA............           6          $1,022
Gardner Quarry; Surface Stone; State--NC................          13          $3,703          13          $3,703
Habersham Quarry; Surface Stone; State--GA..............           1            $100
HOLLY SPRINGS QUARRY; Surface Stone; State--NC..........           8          $1,414           8          $1,414
JEFFERSON QUARRY; Surface Stone; State--SC..............           1            $828
Lithonia/Pine Mountain Quarry; Surface Stone; State--GA.           7          $1,196
Lowrys Quarry; Surface Stone; State--SC.................           1            $100
Marlboro Sand & Gravel; Surface SandAndGravel; State--SC           5            $645
Monroe County Quarry; Surface Stone; State--GA..........           4            $490
NEVERSON QUARRY; Surface Stone; State--NC...............           4          $1,094           2            $894
Pelham Quarry; Surface Stone; State--SC.................           4            $510           1            $176
ROCKY MOUNT QUARRY; Surface Stone; State--NC............          11          $7,783           1          $6,600
Rougemont Quarry; Surface Stone; State--NC..............           1            $100
Sandy Flat Quarry; Surface Stone; State--SC.............           4          $1,025           1            $138
Sparta Quarry; Surface Stone; State--GA.................           5          $1,478
Toccoa Quarry; Surface Stone; State--GA.................           5          $4,840
Walton Co. Quarry; Surface Stone; State--GA.............           3          $2,601           2          $2,198
Hanson Material Service.................................          71         $12,910          10          $2,330
Algonquin Sand & Gravel; Surface SandAndGravel; State--            7            $874
 IL.....................................................
Babcock Quarry; Surface Stone; State--IN................           1            $117
Fairmount Quarry; Surface Stone; State--IL..............           1            $100
Federal Quarry; Surface Stone; State--IL................           8          $2,705
Lincoln Quarry; Surface Stone; State--IL................           4            $708
Monon Quarry; Surface Stone; State--IN..................           5            $652
Morris Sand & Gravel; Surface Stone; State--IL..........           1            $100
Nokomis Quarry; Surface Stone; State--IL................          11          $1,455
Romeo Quarry; Surface Stone; State--IL..................           3          $1,069
Thornton Quarry; Surface Stone; State--IL...............          25          $4,537           9          $2,213
Ward Stone; Surface Stone; State--IN....................           5            $593           1            $117
Hanson Permanente Cement Inc............................           1            $108
Lehigh Permanente Quarry; Surface Stone; State--CA......           1            $108
Lehigh Cement Company...................................         370        $809,996         111        $525,795
EVANSVILLE PLANT; Facility Stone; State--PA.............          39         $68,792          23         $35,103
Leeds Plant; Facility Stone; State--AL..................         134        $335,365          81        $301,066
Lehigh Cement Co.; Facility Stone; State--PA............          25         $13,026
Lehigh Cement Company Mitchell; Facility Stone; State--           35         $19,654
 IN.....................................................
Mason City Plant; Facility Stone; State--IA.............         112        $360,841           5        $182,057
UNION BRIDGE MD; Facility Stone; State--MD..............          23         $12,118           2          $7,569
Waco Plant; Facility Stone; State--TX...................           2            $200
Lehigh Northeast Cement Company.........................          50         $49,433           1          $3,405
Cementon Plant & Quarry; Facility Stone; State--NY......          20         $15,044           1          $3,405
Glens Falls Plant; Facility Stone; State--NY............          28         $34,189
Glens Falls Quarry; Surface Stone; State--NY............           2            $200
Lehigh Northwest Cement Company.........................           3            $390
Lehigh Northwest Cement Company; Facility Stone; State--           3            $390
 WA.....................................................
Lehigh Southwest Cement.................................         142        $111,996          64         $88,382
Lehigh Permanente Cement Co.; Facility Stone; State--CA.          46         $47,819          24         $45,395
Lehigh Permanente Quarry; Surface Stone; State--CA......          21          $2,398           3            $424
Redding Plant; Surface Stone; State--CA.................          31         $10,154          23          $8,943
Tehachapi Plant; Facility Stone; State--CA..............          44         $51,625          14         $33,620
Mays Landing Sand & Gravel..............................           1            $190
DORCHESTER PLANT; Surface SandAndGravel; State--NJ......           1            $190
Mission Valley Rock Company.............................           9          $3,581
Sunol Plant; Surface SandAndGravel; State--CA...........           9          $3,581
U S Brick...............................................          13          $1,300           1            $100
Anson Mine; Surface Nonmetal; State--NC.................           1            $100
Caddo Plant & Pits; Surface Nonmetal; State--LA.........           1            $100           1            $100
CORUNNA PLANT; Surface Nonmetal; State--MI..............           4            $400
Gulf Mine; Surface Nonmetal; State--NC..................           1            $100
Richland County Mines; Surface Nonmetal; State--SC......           4            $400
SAMPSON MINE II; Surface Nonmetal; State--NC............           1            $100
Union Cty; Surface Nonmetal; State--NC..................           1            $100
Imerys S A..............................................         587        $603,050         242        $477,250
Celite Corp.............................................          58         $88,205          36         $73,426
Fernley Plant; Surface Nonmetal; State--NV..............           4            $476           2            $276
Kenite Plants 1 & 2; Surface Nonmetal; State--WA........           5          $3,685
Kenite Quarry; Surface Nonmetal; State--WA..............           6          $2,059
Lompoc Plant; Surface Nonmetal; State--CA...............          43         $81,985          34         $73,150
Ecca Calcium Products Inc...............................           4          $1,596
CALCIUM CARBONATE PLANT/MILL; Facility Stone; State--MD.           4          $1,596
Harborlite Corp.........................................          19          $3,038
Antonito Plant; Surface Nonmetal; State--CO.............           6            $894
No Agua Mine & Mill; Surface Nonmetal; State--NM........           5            $826
Superior Pit & Mill; Surface Nonmetal; State--AZ........           8          $1,318
Imerys Carbonates LLC...................................         124        $105,591          17         $42,004
Imerys Sylacauga Operations; Surface Stone; State--AL...         124        $105,591          17         $42,004
Imerys Clays Inc........................................          69         $25,206          21         $13,142
Deepstep Land and Mines; Surface Nonmetal; State--GA....           2            $200
Deepstep Road Plant; Surface Nonmetal; State--GA........          39         $17,972          20         $12,808
Sandersville Calcine Plant; Facility Nonmetal; State--GA          28          $7,034           1            $334
Imerys Kaolin Inc.......................................          10          $2,732
Dry Branch Plant; Facility Nonmetal; State--GA..........          10          $2,732
Imerys Marble Incorporated..............................          48         $12,689           8          $2,378
Imerys Marble Inc Mine #4; Underground Stone; State--GA.           5            $792           2            $492
Imerys Marble Inc; Surface Stone; State--AZ.............           1            $100
Imerys Marble Inc; Surface Stone; State--NY.............           3            $300
Marble Hill Plants; Facility Stone; State--GA...........          19          $7,342
New York Mine; Underground Stone; State--GA.............          11          $2,107           4            $992
Whitestone Plants; Facility Stone; State--GA............           9          $2,048           2            $894
Kentucky-Tennessee Clay Company.........................          39          $9,491          13          $6,019
Crenshaw Mine and Plant; Surface Nonmetal; State--MS....           2            $200
Gleason Mills and Mines; Facility Nonmetal; State--TN...           3            $300           1            $100
Graves County Mines; Surface Nonmetal; State--KY........           2            $200
Kentucky-Tennessee Clay Company; Surface Nonmetal;                31          $8,691          12          $5,919
 State--GA..............................................
K-T Clay Company; Surface Nonmetal; State--SC...........           1            $100
Kings Mountain Minerals, Inc............................           9            $976
Battleground Mill; Surface Nonmetal; State--NC..........           1            $100
Moss Mine & Mill; Surface Nonmetal; State--NC...........           8            $876
K-T Feldspar Corporation................................          10         $71,524           6         $71,124
K-T Feldspar Corporation; Facility Nonmetal; State--NC..          10         $71,524           6         $71,124
Mullite Company Of America..............................          81        $173,507          47        $167,404
Barbour County Mines; Surface Nonmetal; State--AL.......           1            $100
MACON COUNTY MINES; Surface Nonmetal; State--GA.........           1            $100           1            $100
MULCOA PLANT #1; Facility Nonmetal; State--GA...........          20         $61,624          15         $60,938
MULCOA PLANT NO 2; Facility Nonmetal; State--GA.........          52        $106,630          29        $103,267
PLANT 5; Surface Nonmetal; State--GA....................           7          $5,053           2          $3,099
The Feldspar Corporation................................         116        $108,495          94        $101,753
Feldspar Corp-Siloam Washing Plant; Surface Nonmetal;              1            $100
 State--GA..............................................
Plant #1; Facility Nonmetal; State--NC..................          81         $64,490          70         $62,872
The Feldspar Corporation-Main Plant; Facility Nonmetal;           32         $43,705          24         $38,881
 State--GA..............................................
Wiseman Sullins/Chalk; Surface Nonmetal; State--NC......           2            $200
International Coal Group Inc (ICG)......................       3,293      $3,478,055         432      $1,994,416
Anker WV Mining Co Inc..................................         780      $1,096,513         190        $805,314
Imperial Mine; Underground Coal; State--WV..............         146        $124,792          28         $78,140
Sago Mine; Underground Coal; State--WV..................          62         $19,289           4          $4,249
Sawmill Run Preparation Plant; Facility Coal; State--WV.          34          $6,433
Sentinel Mine; Underground Coal; State--WV..............         514        $942,506         158        $722,925
Sentinel Preparation Plant; Facility Coal; State--WV....          24          $3,493
I.C.G.HAZARD,LLC........................................         708        $969,927          58        $567,478
County Line Mine; Surface Coal; State--KY...............           1            $392
East Mac & Nellie; Surface Coal; State--KY..............          40         $14,786           3          $4,714
FIRST CREEK MINE #1; Underground Coal; State--KY........          38         $60,144           3         $54,700
Flint Ridge Mine #2; Underground Coal; State--KY........         375        $731,746          43        $442,060
Flint Ridge Mine; Underground Coal; State--KY...........          49         $79,046           3         $54,553
Flint Ridge Prep Plant; Facility Coal; State--KY........          33          $4,587
Kentucky River Loading; Facility Coal; State--KY........          29          $8,591
Middle Fork Surface; Surface Coal; State--KY............          38         $33,660           2          $8,223
Rowdy Gap Mine; Surface Coal; State--KY.................          27         $11,182           4          $3,228
Thunder Ridge Mine; Surface Coal; State--KY.............          28         $13,053
Tip Top Mine; Surface Coal; State--KY...................          29          $6,567
Vicco Mine; Surface Coal; State--KY.....................          21          $6,173
ICG ADDCAR Systems, LLC.................................          35         $11,722          16          $7,455
ADDCAR System 11 HWM Serial No 23011; Surface Coal;               11          $3,096           6          $1,527
 State--VA..............................................
ADDCAR System 16 HWM Serial No. 23016; Surface Coal;               5            $796
 State--TN..............................................
ADDCAR System 18 HWM Serial No 23018; Surface Coal;               11          $5,562           4          $4,040
 State--WY..............................................
ADDCAR Systems 13 HWM Serial No 23013; Surface Coal;               4          $1,230           2            $850
 State--KY..............................................
ADDCAR Systems 20 HWM Serial No. 23020; Surface Coal;              4          $1,038           4          $1,038
 State--IN..............................................
ICG Beckley, LLC........................................         267        $341,710          67        $198,738
Beckley Pocahontas Mine; Underground Coal; State--WV....         260        $341,010          67        $198,738
Beckley Pocahontas Plant; Facility Coal; State--WV......           7            $700
ICG East Kentucky, LLC..................................          55         $25,807
Blackberry Creek Mine; Surface Coal; State--KY..........          12          $2,832
Mount Sterling Branch; Surface Coal; State--KY..........          22         $20,169
Phelps Coal Tipple (T-2); Facility Coal; State--KY......           1            $100
Sandlick Loadout; Facility Coal; State--KY..............          18          $2,494
Taylor Deep Mine; Underground Coal; State--KY...........           2            $212
ICG Eastern LLC.........................................          20          $4,365
Birch River Mine; Surface Coal; State--WV...............          13          $3,558
Birch River Plant; Facility Coal; State--WV.............           7            $807
ICG Illinois LLC Viper Mine.............................         365        $413,792          42        $137,183
Viper Mine; Underground Coal; State--IL.................         365        $413,792          42        $137,183
ICG Knott County, LLC...................................         725        $397,189          18        $140,941
Apollo Mine; Underground Coal; State--KY................           2            $200
Calvary Mine; Underground Coal; State--KY...............         125         $56,540
Classic Mine; Underground Coal; State--KY...............         157         $64,660
Clean Energy Mine; Underground Coal; State--KY..........          19         $81,422           2         $72,090
Raven Mine #1; Underground Coal; State--KY..............         205        $133,521          15         $62,393
Raven Mine #2; Underground Coal; State--KY..............         111         $47,783           1          $6,458
Raven Prep Plant; Facility Coal; State--KY..............          11          $1,331
Slone Branch; Underground Coal; State--KY...............          76          $9,562
Supreme Energy Prep Plant; Facility Coal; State--KY.....          19          $2,170
Patriot Mining Company Inc..............................           5          $1,163
Patriot Mining Company Inc; Surface Coal; State--WV.....           2            $787
Patriot Rail & River Terminal; Facility Coal; State--WV.           3            $376
Powell Mountain Energy LLC..............................         293        $205,537          36        $132,730
Mayflower Preparation Plant; Facility Coal; State--VA...          23          $2,497
Middlesplint Mine; Underground Coal; State--VA..........           1            $100
Mine #1; Underground Coal; State--KY....................         269        $202,940          36        $132,730
Upshur Property Inc.....................................           9          $1,232
Upshur Complex; Facility Coal; State--WV................           9          $1,232
Vindex Energy Corporation...............................          31          $9,098           5          $4,577
Carlos Surface; Surface Coal; State--MD.................           2            $434
Frostburg Blend Yard; Facility Coal; State--MD..........           2            $276
Jackson Mountain; Surface Coal; State--MD...............           6          $2,829           1          $1,530
Vindex Douglas; Surface Coal; State--MD.................           9          $3,968           3          $2,784
Vindex Energy; Facility Coal; State--WV.................           8          $1,191           1            $263
Vindex Loadout; Facility Coal; State--WV................           4            $400
International Resources LLC.............................         668        $876,689         387        $836,211
Chafin Branch Coal Co LLC...............................          61         $34,152          32         $30,100
Lower Pete Branch Alma Mine; Surface Coal; State--WV....           5            $612
Snap Creek No 1 Surface; Surface Coal; State--WV........          56         $33,540          32         $30,100
Rockhouse Creek Development Corp........................         603        $841,614         353        $805,388
No 3; Underground Coal; State--WV.......................         106        $106,667          48         $96,067
No. 2; Underground Coal; State--WV......................          88         $26,850          42         $20,819
No. 3-A Mine; Underground Coal; State--WV...............          39          $7,348          20          $5,381
No. 6; Underground Coal; State--WV......................          91        $371,103          62        $367,602
No. 8; Underground Coal; State--WV......................         270        $326,286         180        $313,237
No. 9; Underground Coal; State--WV......................           9          $3,360           1          $2,282
Snap Creek Mining LLC...................................           4            $923           2            $723
No 1 Load-Out; Facility Coal; State--WV.................           4            $923           2            $723
Italcementi Spa.........................................         367        $261,359         213        $200,797
Essroc Cement Corp......................................         294        $226,373         180        $188,678
Essroc Cement; Facility Stone; State--IN................         118        $139,680         106        $128,983
Essroc Cement Corp--Bessemer PA; Facility Stone; State--          56         $17,410
 PA.....................................................
Essroc Cement Corp Plant #3; Facility Stone; State--PA..           7          $2,290           6          $1,264
Essroc Cement Corp; Facility Stone; State--IN...........          30         $18,107          20         $16,223
Essroc Cement Corp; Facility Stone; State--MI...........          17          $5,911           1          $1,657
Nazareth Plant 2; Facility Stone; State--PA.............           2            $227           2            $227
Nazareth Plant I; Facility Stone; State--PA.............          64         $42,748          45         $40,324
Essroc San Juan Inc.....................................          22         $15,612
Cantera Espinosa; Facility Stone; State--PR.............          22         $15,612
Riverton Investment Corp................................          51         $19,374          33         $12,119
Essroc Cement Corp.; Facility Stone; State--WV..........          47         $18,440          32         $11,485
Essroc Cement Corp.; Surface Stone; State--VA...........           4            $934           1            $634
J Clifford Forrest III..................................         909        $796,720         506        $726,866
Rosebud Mining Company..................................         908        $796,620         506        $726,866
Beaver Valley; Underground Coal; State--PA..............          19         $21,060          15         $20,001
Bigler Prep Plant; Facility Coal; State--PA.............           9          $1,148           1            $162
Clementine Mine; Underground Coal; State--PA............          85        $103,173          61         $98,773
Darmac No. 2 Mine; Underground Coal; State--PA..........          26         $18,456          18         $17,459
Dutch Run; Underground Coal; State--PA..................          49         $20,758          31         $18,159
Harmony Mine; Underground Coal; State--PA...............           9          $1,867           2          $1,080
Heilwood; Underground Coal; State--PA...................          60         $22,665          17         $17,457
Lady Jane Plant; Facility Coal; State--PA...............           2            $768           1            $308
Little Toby Mine; Underground Coal; State--PA...........          27        $118,748          16        $116,681
Logansport Mine; Underground Coal; State--PA............          74        $117,650          63        $114,971
Logansport Preparation Plant; Facility Coal; State--PA..          12          $2,741           4          $1,423
Lowry Mine; Underground Coal; State--PA.................          73         $40,061          37         $34,852
Maintenance Shop; Facility Coal; State--PA..............          11          $2,749           7          $2,349
Mc Ville Prep Plant; Facility Coal; State--PA...........          20         $21,762          14         $20,389
Mine 78 Preparation Plant; Facility Coal; State--PA.....           5            $945
Mine 78; Underground Coal; State--PA....................          87         $74,904          50         $69,427
Penfield Mine; Underground Coal; State--PA..............          51         $58,097          29         $54,981
Tom's Run Mine; Underground Coal; State--PA.............          81         $47,690          44         $42,396
Tracy Lynne; Underground Coal; State--PA................          39         $51,799          27         $39,005
Tusky Prep; Facility Coal; State--OH....................           9            $900
Tusky; Underground Coal; State--OH......................          98         $23,108          29         $14,568
Twin Rocks Mine; Underground Coal; State--PA............          62         $45,571          40         $42,425
Western Allegheney Energy, LLC..........................           1            $100
Knob Creek; Underground Coal; State--PA.................           1            $100
James C Justice II......................................       1,463      $1,249,416         808        $951,236
A & G Coal Corp.........................................          85         $19,526
Job #15 Surface; Surface Coal; State--VA................           1            $634
Kellyview Loadout Facility; Facility Coal; State--VA....          16          $2,367
Preacher Creek Strip; Surface Coal; State--VA...........          24          $9,016
Prep Plant #1; Facility Coal; State--VA.................          17          $2,324
Sigmon Strip #23; Surface Coal; State--VA...............           1            $100
Strip #11; Surface Coal; State--VA......................           1            $334
Strip #12; Surface Coal; State--VA......................          11          $2,499
Strip #13; Surface Coal; State--VA......................           2            $307
Strip #14; Surface Coal; State--VA......................           8          $1,545
Strip #24; Surface Coal; State--VA......................           3            $300
Strip #8; Facility Coal; State--VA......................           1            $100
Bluestone Coal Corp.....................................          27        $121,623          27        $121,623
No 6 Strip; Surface Coal; State--WV.....................           4          $2,353           4          $2,353
Pinnacle Creek Strip; Surface Coal; State--WV...........          21         $59,170          21         $59,170
Pinnacle Ridge Surface Mine; Surface Coal; State--WV....           1            $100           1            $100
Red Fox Surface Mine; Surface Coal; State--WV...........           1         $60,000           1         $60,000
Bluestone Industries Inc................................           4            $400           4            $400
Central Shop; Facility Coal; State--WV..................           4            $400           4            $400
Double Bonus Coal Company...............................          93         $46,539          43         $24,747
No 65; Underground Coal; State--WV......................          93         $46,539          43         $24,747
Dynamic Energy Inc......................................          22         $42,249          21         $42,149
Coal Mountain No 1 Surface; Surface Coal; State--WV.....          21         $42,149          21         $42,149
McDonald Fork Impoundment; Surface Coal; State--WV......           1            $100
Four Star Resources LLC.................................          16          $2,296           6          $1,296
Harlan Strip #1; Surface Coal; State--KY................          16          $2,296           6          $1,296
Frontier Coal Company...................................          85         $26,806          84         $26,706
Double Camp No. 1; Underground Coal; State--WV..........          85         $26,806          84         $26,706
Infinity Energy Incorporated............................         208        $105,452         142         $96,400
Infinity #1; Surface Coal; State--KY....................          28          $6,000          27          $5,415
Infinity #2; Surface Coal; State--KY....................           2            $619           2            $619
Infinity #3; Surface Coal; State--KY....................          41         $64,675          33         $63,173
Infinity #4; Underground Coal; State--KY................          76         $24,639          62         $22,873
Pine Mountain Prep Plant; Facility Coal; State--KY......          61          $9,519          18          $4,320
Justice Energy Inc......................................          23         $43,815          23         $43,815
Red Fox Surface Mine; Surface Coal; State--WV...........          23         $43,815          23         $43,815
Justice Highwall Mining, Inc............................           1            $392           1            $392
No 3 Miner; Surface Coal; State--WV.....................           1            $392           1            $392
Kentucky Fuel Corporation...............................          10          $1,062
Hazard Star Loadout; Facility Coal; State--KY...........          10          $1,062
Keystone Service Industries Inc.........................          38        $226,834          34        $226,434
Keystone No 1 Preparation Plant; Facility Coal; State--           38        $226,834          34        $226,434
 WV.....................................................
Liggett Mining LLC......................................         438        $343,544         245        $213,446
Liggett #1; Surface Coal; State--KY.....................          30          $7,889          15          $6,025
Liggett #3; Underground Coal; State--KY.................         121         $80,379          53         $70,270
Liggett #5; Underground Coal; State--KY.................         250        $227,897         157        $118,119
Liggett #6; Underground Coal; State--KY.................          37         $27,379          20         $19,032
M & P Services, Inc.....................................           4          $3,810           1          $3,224
Red Fox Load-Out; Facility Coal; State--WV..............           4          $3,810           1          $3,224
NuFac Mining Company, Inc...............................          26         $38,083           6         $31,389
Buckeye Mine; Underground Coal; State--WV...............          25         $37,983           6         $31,389
Nu Fac Mine; Underground Coal; State--WV................           1            $100
Pay Car Mining Inc......................................          68         $85,972          68         $85,972
No 58; Underground Coal; State--WV......................          68         $85,972          68         $85,972
Premium Coal Company Inc................................          52         $12,457           8          $2,474
#1 Surface-002 Section; Surface Coal; State--TN.........           5            $786
No 1 Surface-003 Section; Surface Coal; State--TN.......          11          $1,987           3            $672
No 1 Tipple; Facility Coal; State--TN...................          36          $9,684           5          $1,802
S & H Mining, Inc.......................................         164        $108,348          35         $15,179
S & H Mining; Underground Coal; State--TN...............         164        $108,348          35         $15,179
Sequoia Energy LLC......................................          99         $20,208          60         $15,590
Prep Plant; Facility Coal; State--KY....................          99         $20,208          60         $15,590
James H Booth...........................................       1,216      $1,175,530         819      $1,043,200
Apex Energy, Inc........................................         121         $42,015          43         $20,190
Apex No 1; Facility Coal; State--KY.....................          13          $1,632           8          $1,070
Apex No 2; Facility Coal; State--KY.....................           6            $662           4            $462
No 1; Surface Coal; State--KY...........................           5            $708
No 2; Surface Coal; State--KY...........................          26         $12,185           9          $5,076
No 3; Surface Coal; State--KY...........................          19          $6,232
No 7; Surface Coal; State--KY...........................           6          $2,435           3          $1,775
No 8; Surface Coal; State--KY...........................          18          $6,255           1          $1,304
No. 6; Surface Coal; State--KY..........................          28         $11,906          18         $10,503
Argus Energy WV LLC.....................................         542        $912,443         446        $831,693
Copley Trace Surface Mine; Surface Coal; State--WV......          69        $177,910          69        $177,910
Deep Mine No 7; Underground Coal; State--WV.............         191         $85,599         152         $71,728
Deep Mine No 8; Underground Coal; State--WV.............         231        $621,893         211        $575,794
Kiah Creek Preparation Plant; Facility Coal; State--WV..          30         $16,943          14          $6,261
Wayne County River Terminal; Facility Coal; State--WV...          21         $10,098
Beech Fork Processing Inc...............................          21          $3,918          12          $3,018
Prep Plant # 1; Facility Coal; State--KY................          20          $3,818          12          $3,018
Prep Plant #2; Facility Coal; State--KY.................           1            $100
C W Augering Inc........................................          25          $5,100
No 009; Surface Coal; State--KY.........................          12          $2,654
No 2; Surface Coal; State--KY...........................          13          $2,446
Coalburg Enterprises, Inc...............................          78         $18,131          35         $13,823
No 6; Underground Coal; State--KY.......................          78         $18,131          35         $13,823
Eagle Coal Company Inc..................................          62         $18,451          34         $15,445
No 20; Underground Coal; State--KY......................          36         $14,291          25         $13,123
No 24; Underground Coal; State--KY......................          17          $3,122           9          $2,322
No. 22; Underground Coal; State--KY.....................           9          $1,038
Matrix Energy LLC.......................................         286        $136,667         203        $123,742
No. 1; Underground Coal; State--KY......................         286        $136,667         203        $123,742
Mayo Resources Inc......................................          22         $20,777          19         $20,469
#5; Surface Coal; State--KY.............................          17         $15,727          15         $15,527
No 4; Surface Coal; State--KY...........................           5          $5,050           4          $4,942
Pinnacle Processing Inc.................................          59         $18,028          27         $14,820
Pevler Plant; Facility Coal; State--KY..................          59         $18,028          27         $14,820
James River Coal Company................................       3,419      $2,316,289       1,199      $1,603,334
Bell County Coal Corporation............................         314         $64,285         213         $52,377
Cabin Hollow; Underground Coal; State--TN...............          82         $18,938          44         $14,421
Coal Creek; Underground Coal; State--KY.................          19          $2,128           6            $676
Garmeda #2; Underground Coal; State--KY.................          49          $6,380          22          $3,312
Jellico #1; Underground Coal; State--KY.................          25          $7,530          24          $7,267
Moseley Spur; Underground Coal; State--KY...............          96         $23,309          91         $22,809
Preparation Plant; Facility Coal; State--KY.............          43          $6,000          26          $3,892
Bledsoe Coal Corporation................................         470        $173,159         177         $76,687
#1; Facility Coal; State--KY............................          44         $23,491          21         $12,473
Abner Branch Rider; Underground Coal; State--KY.........          59         $28,310          33         $19,144
Beechfork Mine; Underground Coal; State--KY.............         218         $80,689          82         $32,267
Clover Loadout; Facility Coal; State--KY................           7          $1,178
Dollar Branch Mine; Underground Coal; State--KY.........          81         $23,756          41         $12,803
Marion Branch; Underground Coal; State--KY..............           7            $717
No 61; Facility Coal; State--KY.........................          10          $1,391
Tantrough; Underground Coal; State--KY..................          44         $13,627
Blue Diamond Coal Company...............................       1,165        $956,721         284        $634,612
#75; Underground Coal; State--KY........................         406        $249,101          86        $136,738
#77; Underground Coal; State--KY........................         349        $423,161         113        $325,475
76 Plant; Facility Coal; State--KY......................          27          $4,604           2          $1,707
Calvary No 81; Underground Coal; State--KY..............         383        $279,855          83        $170,692
James River Coal Service Company........................          62         $19,040           8          $5,468
Bear Branch Surface; Surface Coal; State--KY............           1            $100
Buckeye Highwall Miner; Surface Coal; State--KY.........           4            $662
Buckeye Strip #1; Surface Coal; State--KY...............          18          $3,815
Hog Trough; Surface Coal; State--KY.....................          18          $8,173           8          $5,468
Lewis Creek; Surface Coal; State--KY....................           9          $4,154
Lick Branch Strip; Surface Coal; State--KY..............           4            $896
Montgomery Creek; Surface Coal; State--KY...............           8          $1,240
Leeco Inc...............................................         383        $312,856         118        $243,993
#64; Facility Coal; State--KY...........................           6            $839
#68; Underground Coal; State--KY........................         369        $310,378         118        $243,993
Jeff Tipple; Facility Coal; State--KY...................           8          $1,639
McCoy Elkhorn Coal Corporation..........................         610        $478,229         230        $384,150
Bevins Branch Preparation Plant; Facility Coal; State--           28          $7,986
 KY.....................................................
Longfork Preparation Plant; Facility Coal; State--KY....           3            $376
Mine #12; Underground Coal; State--KY...................          62         $17,643          12          $6,195
Mine #15; Underground Coal; State--KY...................         313        $334,393         159        $288,600
Mine #16; Underground Coal; State--KY...................          80         $21,946          16         $10,593
Mine #23; Underground Coal; State--KY...................         122         $57,312          41         $40,189
Mine #25; Underground Coal; State--KY...................           2         $38,573           2         $38,573
Shamrock Coal Company Incorporated......................         248        $129,796         157         $98,073
Beech Fork Coal Prep Facility; Facility Coal; State--KY.          49          $8,682
Shamrock #18 Series; Underground Coal; State--KY........         199        $121,114         157         $98,073
Triad Mining Inc........................................          72         $60,250           2         $29,629
Augusta Mine; Surface Coal; State--IN...................          12         $10,410
Flat Creek; Surface Coal; State--IN.....................           2          $1,933
Freelandville East Mine; Surface Coal; State--IN........          14          $7,380
Freelandville Mine; Surface Coal; State--IN.............          13         $35,183           1         $29,529
Hurricane Creek; Surface Coal; State--IN................          10          $2,701
Log Creek Surface; Surface Coal; State--IN..............          10          $1,093           1            $100
Patoka River; Facility Coal; State--IN..................           1            $176
South Augusta; Surface Coal; State--IN..................           7            $962
Switz City; Facility Coal; State--IN....................           3            $412
Triad Underground Mining, L.L.C.........................          95        $121,953          10         $78,345
Freelandville Underground; Underground Coal; State--IN..          95        $121,953          10         $78,345
Lafarge S A.............................................       1,153      $1,059,198         375        $797,654
Conco Western Stone Co..................................          12          $2,739
Conco Mine; Underground Stone; State--IL................          12          $2,739
Lafarge Aggregates Southeast, Inc.......................         101         $26,350          13          $5,696
BALLGROUND MINE SITE; Surface Stone; State--GA..........           6          $1,248
Calera Aggregates; Facility Stone; State--AL............           6            $873
CAVE IN ROCK QUARRY; Surface Stone; State--IL...........          11          $2,236
Citadel Quarry; Surface Stone; State--AL................           2            $227
CLAYTON COUNTY MINE SITE; Surface Stone; State--GA......           3            $445
Columbus Mine Site; Surface Stone; State--GA............          10          $5,089           4          $3,818
Cumming Mine Site; Surface Stone; State--GA.............          11          $2,043
DOUGLASVILLE MINE SITE; Surface Stone; State--GA........           8          $2,301           3            $994
FRIENDSHIP MINE SITE; Surface Stone; State--GA..........           6            $884           5            $784
Hickory Bend; Surface SandAndGravel; State--AL..........           2            $200
Honey Island Operations; Surface SandAndGravel; State--            2            $787
 LA.....................................................
Isabel Operations; Surface SandAndGravel; State--LA.....           8          $1,248
Jackson County Mine Site; Surface Stone; State--GA......           3            $300
Lakeshore Quarry; Surface Stone; State--AL..............           3            $338
LITHONA MINE SITE; Surface Stone; State--GA.............           3          $2,254
MORGAN COUNTY MINE SITE; Surface Stone; State--GA.......           6            $839
Newton County Mine Site; Surface Stone; State--GA.......           4          $1,094           1            $100
No 1 Plt & Dr Clemons; Surface SandAndGravel; State--LA.           7          $3,944
Lafarge Aux Sable, LLC..................................          16          $3,514
Aux Sable Plant; Surface SandAndGravel; State--IL.......          16          $3,514
LaFarge Building Materials Incorporated.................         360        $461,151         195        $405,945
Atlanta Plant; Facility Stone; State--GA................          10         $10,992
HARLEYVILLE MINE & PLANT; Facility Stone; State--SC.....         275        $421,663         182        $400,730
Lafarge Building Materials Incorporated; Facility Stone;          32         $14,248
 State--NY..............................................
LAFARGE ROBERTA PLANT; Facility Stone; State--AL........          42         $14,140          13          $5,215
Tulsa Plant; Facility Stone; State--OK..................           1            $108
Lafarge Fox River, Inc..................................          28         $10,180
The R S & D Mine; Underground Stone; State--IL..........          28         $10,180
Lafarge Joliet Inc......................................          11          $1,400
JS & G Underground Mine # 1 Joliet; Underground Stone;            11          $1,400
 State--IL..............................................
Lafarge Mid Atlantic, LLC...............................          11          $3,712
Chase Sand Plant; Surface SandAndGravel; State--MD......           3          $1,553
Churchville Quarry; Surface Stone; State--MD............           7          $2,059
Warfordsburg Quarry; Surface Stone; State--PA...........           1            $100
Lafarge Midwest.........................................         191        $256,381          85        $191,613
Joppa Plant; Facility Stone; State--IL..................          47         $20,386           2          $3,013
Lafarge Midwest Incorporated; Facility Stone; State--KS.         144        $235,995          83        $188,600
Lafarge North America Inc...............................         321        $264,569          62        $185,638
Alpena Plant; Facility Stone; State--MI.................          16          $2,099
Colgate Pit Yard 1; Surface SandAndGravel; State--WI....          15          $3,027
COURTNEY RIDGE PLANT; Underground Stone; State--MO......          11          $4,173
Davenport Plant; Facility Stone; State--IA..............          44         $26,151          18         $19,111
DEFIANCE PLANT; Surface Stone; State--MO................           5            $985
Elburn Sand & Gravel; Surface SandAndGravel; State--IL..          13          $1,552
Freedom Pit; Surface SandAndGravel; State--NY...........           2            $217
Jack Rabbit; Surface SandAndGravel; State--AZ...........           8          $2,649
Kentucky Road Quarry; Underground Stone; State--MO......          11          $2,688
Lafarge Bridgeton; Surface SandAndGravel; State--MO.....           1            $100
Lafarge North America; Facility Stone; State--OH........           8          $3,940
LAFARGE SUGAR CREEK PLANT; Facility Stone; State--MO....          24          $7,554
Lafarge Whitehall Plant; Facility Stone; State--PA......          19         $13,470
Marblehead Quarry; Surface Stone; State--OH.............          12          $1,880
Petersburg; Surface Stone; State--OH....................           2            $200
PETTIS QUARRY; Surface Stone; State--MO.................           1            $100
Seattle Plant; Facility Stone; State--WA................          51        $166,091          30        $156,472
Shalersville North Plant; Surface SandAndGravel; State--           1            $100           1            $100
 OH.....................................................
ST CHARLES PLANT; Surface Stone; State--MO..............           4            $563
Sugar Creek Ug Mine; Underground Stone; State--MO.......          32          $7,805          10          $1,567
Sun City Pit; Surface SandAndGravel; State--AZ..........           6          $9,768           3          $8,388
Tulsa Plant; Facility Stone; State--OK..................          32          $7,280
Wichita Sand and Gravel; Surface SandAndGravel; State--            3          $2,177
 KS.....................................................
Lafarge Southwest.......................................           5            $527
PLACITAS; Surface SandAndGravel; State--NM..............           5            $527
Lafarge West Incorporated...............................          24          $3,139
Cottonwood Pit; Surface SandAndGravel; State--CO........           4            $608
Northern Portable Plant #10; Surface SandAndGravel;                1            $100
 State--CO..............................................
Northern Portable Plant #11; Surface SandAndGravel;                1            $100
 State--CO..............................................
NORTHERN PORTABLE PLANT #14; Surface SandAndGravel;                2            $200
 State--CO..............................................
Northern Portable Plant #17; Surface SandAndGravel;                4            $524
 State--CO..............................................
Northern Portable Plant #19; Surface SandAndGravel;                1            $100
 State--CO..............................................
Northern Portable Plant #20; Surface SandAndGravel;                2            $200
 State--CO..............................................
Northern Portable Plant #21; Surface SandAndGravel;                1            $100
 State--CO..............................................
NORTHERN PORTABLE PLANT #3; Surface SandAndGravel;                 2            $599
 State--CO..............................................
Northern Portable Plant #4; Surface SandAndGravel;                 1            $100
 State--CO..............................................
Northern Portable Plant #6; Surface SandAndGravel;                 2            $208
 State--CO..............................................
Riverbend Pit; Surface SandAndGravel; State--CO.........           2            $200
SPECIFICATION AGGREGATES; Surface Stone; State--CO......           1            $100
Lafarge Western of Illinois, Inc........................          20          $5,828           1          $2,000
Sheridan Plant; Surface SandAndGravel; State--IL........          20          $5,828           1          $2,000
Presque Isle Corp.......................................          19          $4,657          15          $3,965
Stoneport; Surface Stone; State--MI.....................          19          $4,657          15          $3,965
Redland Genstar Inc.....................................          22         $10,879           3            $797
Beaver Creek Quarry; Surface Stone; State--MD...........           1            $100
Churchville Quarry; Surface Stone; State--MD............           2            $200
Frederick Quarry; Surface Stone; State--MD..............          13          $9,481           3            $797
Rockdale Quarry; Surface Stone; State--MD...............           2            $200
Texas Quarry; Surface Stone; State--MD..................           2            $250
Warfordsburg Quarry; Surface Stone; State--PA...........           2            $648
Redland Quarries Ny Inc.................................           5          $1,087
LOCKPORT QUARRY; Surface Stone; State--NY...............           5          $1,087
Utica Stone Company.....................................           7          $3,085           1          $2,000
Utica Stone Plant; Surface Stone; State--IL.............           7          $3,085           1          $2,000
Massey Energy Company...................................      10,793     $13,516,382       3,741     $10,486,334
Alex Energy, Inc........................................         241        $434,961          54        $281,321
Alex Energy Loadout; Facility Coal; State--WV...........           5            $840
Blackberry Coalburg; Underground Coal; State--WV........           3            $377
Edwight Surface Mine; Surface Coal; State--WV...........          37        $196,534          16        $110,654
Jerry Fork Eagle; Underground Coal; State--WV...........         118         $53,352          20         $15,302
No 1 Surface; Surface Coal; State--WV...................          37        $150,521           8        $139,899
North Surface Mine; Surface Coal; State--WV.............          13         $11,080
Superior Surface Mine; Surface Coal; State--WV..........          19         $16,889          10         $15,466
Trace Fork Surface Mine; Surface Coal; State--WV........           9          $5,368
Aracoma Coal Company, Inc...............................         387        $616,224         169        $577,950
Aracoma Alma Mine #1; Underground Coal; State--WV.......         308        $585,686         144        $555,495
Cedar Grove #1 Mine; Underground Coal; State--WV........          32          $5,008          10          $1,946
Dingess Processing Complex; Facility Coal; State--WV....           1            $100
Hernshaw Mine; Underground Coal; State--WV..............          43         $24,645          15         $20,509
Mine No 8; Underground Coal; State--WV..................           2            $685
No 6; Underground Coal; State--WV.......................           1            $100
Bandmill Coal Corp......................................         108        $252,490          55        $236,172
Rum Creek Preparation Plant; Facility Coal; State--WV...          89        $245,456          47        $230,626
Tower Mountain; Surface Coal; State--WV.................          19          $7,034           8          $5,546
Bent Branch Energy Co...................................       1,363        $936,515         408        $649,208
#1 Prep Plant; Facility Coal; State--KY.................          47         $22,194           6         $15,304
Bent Branch Energy Co Mine No 1; Underground Coal;                 1          $5,000           1          $5,000
 State--KY..............................................
Bent Branch Plant; Facility Coal; State--KY.............           1            $100
Fraley Branch Surface Mine; Surface Coal; State--KY.....          30         $38,963           8         $31,223
Mine #1; Underground Coal; State--KY....................         459        $393,133         154        $312,270
N0. 1; Underground Coal; State--KY......................         181         $75,961          32         $29,668
New Ridge Mining Company; Facility Coal; State--KY......           7         $10,246           1          $9,300
No 1; Underground Coal; State--KY.......................         289        $180,064          90        $107,720
Taylor Fork Energy; Underground Coal; State--KY.........         335        $208,736         116        $138,723
Transport Mine; Underground Coal; State--KY.............          13          $2,118
Coalgood Energy Company.................................         171        $219,196          16        $187,329
Coalgood Crusher/Loadout; Facility Coal; State--KY......           3            $300
Moore Processing; Facility Coal; State--KY..............           8            $800
Right Fork Splint; Surface Coal; State--KY..............          11          $1,339
Triumph Mine; Underground Coal; State--KY...............         149        $216,757          16        $187,329
Delbarton Mining Company................................          20          $5,690           3            $768
Delbarton Preparation Plant; Facility Coal; State--WV...          20          $5,690           3            $768
Elk Run Coal Co., Inc...................................         982      $1,486,208         421      $1,098,630
Black Castle Mining Co; Surface Coal; State--WV.........          96        $106,264          35         $60,758
Black King I North Portal; Underground Coal; State--WV..         176        $456,737         110        $439,743
Black Knight II; Underground Coal; State--WV............         109         $49,690          45         $40,586
Blue Pennant Transfer; Facility Coal; State--WV.........           5            $815           3            $615
Castle East Portal; Underground Coal; State--WV.........           1          $1,412
Castle Mine; Underground Coal; State--WV................         169        $224,857          48        $100,343
Chess Processing; Facility Coal; State--WV..............          20          $7,466           5          $4,438
Homer III Processing; Facility Coal; State--WV..........          11          $2,484           6          $1,865
Hunter Peerless Mine; Underground Coal; State--WV.......          35         $22,384          30         $21,884
Republic Energy; Surface Coal; State--WV................          59         $88,471          15         $36,578
Roundbottom Powellton Deep Mine; Underground Coal;               255        $510,390         106        $380,656
 State--WV..............................................
Seng Creek Powellton; Underground Coal; State--WV.......          46         $15,238          18         $11,164
Freedom Energy Mining Company...........................         725        $826,164         262        $663,439
Mine #1; Underground Coal; State--KY....................         725        $826,164         262        $663,439
Goals Coal Company......................................          28         $10,321           1            $946
Goals Preparation Plant; Facility Coal; State--WV.......          28         $10,321           1            $946
Green Valley Coal Company...............................           7          $1,091
No 1 Preparation Plant; Facility Coal; State--WV........           7          $1,091
Highland Mining Company.................................          61        $271,528          21        $235,817
Freeze Fork Surface Mine; Surface Coal; State--WV.......          44        $265,688          19        $234,647
Highland Coal Handling Facility; Underground Coal;                17          $5,840           2          $1,170
 State--WV..............................................
Independence Coal Company dba Endurance Mining..........          96        $199,729          35        $178,270
Plant No 1; Facility Coal; State--WV....................          11          $1,714           1            $100
Red Cedar Surface Mine; Surface Coal; State--WV.........          49        $169,374          26        $162,539
West Cazy Surface Mine; Surface Coal; State--WV.........          36         $28,641           8         $15,631
Independence Coal Company Inc...........................         709      $1,134,694         391        $996,391
Allegiance Mine; Underground Coal; State--WV............         263        $492,733         142        $421,863
Homer III Processing; Facility Coal; State--WV..........          10          $1,957           3            $948
Justice #1; Underground Coal; State--WV.................         306        $526,889         160        $471,887
Liberty Processing; Facility Coal; State--WV............         129        $113,015          86        $101,693
Tunnel Mine; Underground Coal; State--WV................           1            $100
Inman Energy............................................         345        $194,887         194        $167,852
Randolph Mine; Underground Coal; State--WV..............         345        $194,887         194        $167,852
Knox Creek Coal Corp....................................         752        $928,094         197        $520,094
Coal Creek Prep Plant; Facility Coal; State--VA.........          47          $9,135
Hess Creek Surface Mine; Surface Coal; State--VA........          25          $7,903
Hurricane Branch Strip #1; Surface Coal; State--VA......           4            $934
Tiller No 1; Underground Coal; State--VA................         676        $910,122         197        $520,094
Long Fork Coal Company..................................          58         $23,970          11         $16,985
Long Fork Preparation Plant; Facility Coal; State--KY...          58         $23,970          11         $16,985
Marfork Coal Company, Inc...............................         896      $1,356,283         364      $1,172,550
Allen Powellton Mine; Underground Coal; State--WV.......          98         $90,809          36         $65,610
Brushy Eagle; Underground Coal; State--WV...............          98        $145,989          37        $118,738
Coon Cedar Grove Mine; Underground Coal; State--WV......          34         $15,309          14         $13,183
Horse Creek Eagle; Underground Coal; State--WV..........         134        $219,017          60        $194,159
Marfork Processing; Facility Coal; State--WV............          23          $8,959          10          $7,016
Marsh Fork Mine; Underground Coal; State--WV............         150        $511,463          74        $474,380
Parker Peerless Mine; Underground Coal; State--WV.......         155        $174,992          64        $148,263
Slip Ridge Cedar Grove Mine; Underground Coal; State--WV         178        $176,381          64        $142,175
White Queen; Underground Coal; State--WV................          26         $13,364           5          $9,026
Martin Co. Coal Corp....................................         359        $111,850          50         $61,072
Emily Creek Energy; Underground Coal; State--KY.........          63         $38,156          12         $27,404
MTR Surface Mine; Surface Coal; State--KY...............          19          $8,462           4          $4,759
MTR Wolf Creek Mine; Surface Coal; State--KY............          17          $2,077           4            $777
Preparation Plant; Facility Coal; State--KY.............          31          $5,323           4          $1,394
Voyager #7; Underground Coal; State--KY.................         165         $49,765          21         $25,099
White Cabin #7; Underground Coal; State--KY.............          64          $8,067           5          $1,639
Omar Mining Company.....................................          26         $27,895          11         $25,760
Chesterfield Prep Plant; Facility Coal; State--WV.......          26         $27,895          11         $25,760
Peerless Eagle Coal Company.............................           6          $2,419
Lilly Fork Surface Mine; Surface Coal; State--WV........           2          $2,019
Rockcamp Impoundments 1 & 2; Facility Coal; State--WV...           4            $400
Performance Coal Company................................         502        $913,021         182        $628,873
Lower Big Branch Impoundment; Facility Coal; State--WV..           4            $434
Upper Big Branch Mine-South; Underground Coal; State--WV         495        $911,802         181        $628,288
Upper Big Branch Raw Coal Facil; Facility Coal; State--            3            $785           1            $585
 WV.....................................................
Power Mountain Coal Company.............................          40         $39,986           1            $100
Power Mountain Processing; Facility Coal; State--WV.....          40         $39,986           1            $100
Progress Coal...........................................          48        $118,351          14         $90,890
Twilight Mtr Surface Mine; Surface Coal; State--WV......          48        $118,351          14         $90,890
Rawl Sales and Processing Company Inc...................           3            $300           1            $100
Sprouse Creek Processing Company Inc; Facility Coal;               3            $300           1            $100
 State--WV..............................................
Road Fork Development Company., Inc.....................         203        $119,103          45         $81,300
Long Pole Energy; Surface Coal; State--KY...............           1          $5,000           1          $5,000
Love Branch Mine; Underground Coal; State--KY...........          13         $24,084           1         $20,700
Love Branch South; Underground Coal; State--KY..........         189         $90,019          43         $55,600
Rockhouse Energy Mining Company.........................         432        $536,456          92        $369,593
Mine #1; Underground Coal; State--KY....................         432        $536,456          92        $369,593
Rum Creek Coal Sales....................................          15          $4,775           6          $3,571
Camp Branch Mine; Surface Coal; State--WV...............          15          $4,775           6          $3,571
Spartan Mining Company, Inc.............................       1,874      $2,549,982         649      $2,122,220
Alloy Powellton; Underground Coal; State--WV............           6          $1,317           1            $499
Coalburg Extension; Underground Coal; State--WV.........           4          $1,186
Diamond Energy; Underground Coal; State--WV.............         126        $106,823          69         $97,238
Hatfield Energy Mine; Underground Coal; State--WV.......          92         $35,607          38         $28,267
Laurel Coalburg Tunnel Mine; Underground Coal; State--WV         190        $123,499          47         $85,417
Laurel Creek/Spirit Mine; Underground Coal; State--WV...           2            $276
Mammoth #2 Gas; Underground Coal; State--WV.............         134        $230,615          44        $211,619
Mammoth Coal Processing Pl & Riv Tipple; Facility Coal;           46         $19,424           7         $10,611
 State--WV..............................................
Mammoth Coal Co. Surface Mine; Surface Coal; State--WV..           9            $976
No 130 Mine; Underground Coal; State--WV................          84         $66,567          13         $37,995
Road Fork #51 Mine; Underground Coal; State--WV.........         251        $315,521          81        $247,500
Ruby Energy; Underground Coal; State--WV................         562      $1,399,193         274      $1,245,047
Shadrick 5 Block; Underground Coal; State--WV...........          60         $22,960          17         $17,499
Slabcamp; Underground Coal; State--WV...................         269        $211,617          50        $135,477
Stockton Mine; Underground Coal; State--WV..............          39         $14,401           8          $5,051
Stirrat Coal Company....................................          59         $41,130           7          $7,941
Preparation Plant; Facility Coal; State--WV.............          59         $41,130           7          $7,941
Talon Loadout Company...................................           5          $1,240           1            $392
Talon Loadout; Facility Coal; State--WV.................           5          $1,240           1            $392
Tennessee Consolidated Coal Company.....................           1            $100
Preparation Plant; Facility Coal; State--TN.............           1            $100
White Buck Coal Company.................................         271        $151,729          80        $110,800
Grassy Creek No 1; Underground Coal; State--WV..........         144         $97,414          51         $73,614
Hominy Creek Mine; Underground Coal; State--WV..........          45         $16,823          14         $11,267
Pocahontas Mine; Underground Coal; State--WV............          56         $13,574           9          $4,589
White Buck No 2; Underground Coal; State--WV............          26         $23,918           6         $21,330
Mechel Oao..............................................         545        $547,614         524        $545,498
Bluestone Coal Corp.....................................          27         $16,820          17         $15,820
Central Shop; Facility Coal; State--WV..................           6            $600
No 2 Plant; Facility Coal; State--WV....................           1            $100
No 6 Strip; Surface Coal; State--WV.....................           5            $686           4            $586
Pinnacle Creek Strip; Surface Coal; State--WV...........           1            $100
Pinnacle Ridge Surface Mine; Surface Coal; State--WV....           2            $200           1            $100
Red Fox Load-Out; Facility Coal; State--WV..............          12         $15,134          12         $15,134
Double Bonus Coal Company...............................         162         $78,953         162         $78,953
No 65; Underground Coal; State--WV......................         162         $78,953         162         $78,953
Dynamic Energy Inc......................................          31         $28,175          31         $28,175
Coal Mountain No 1 Surface; Surface Coal; State--WV.....          25         $26,908          25         $26,908
McDonald Fork Impoundment; Surface Coal; State--WV......           6          $1,267           6          $1,267
Frontier Coal Company...................................          76         $38,831          75         $38,731
Double Camp No. 1; Underground Coal; State--WV..........          76         $38,831          75         $38,731
Justice Energy Inc......................................          14         $79,008          14         $79,008
Red Fox Surface Mine; Surface Coal; State--WV...........          14         $79,008          14         $79,008
Justice Highwall Mining, Inc............................          16          $9,046          13          $8,746
No 1 Miner; Surface Coal; State--WV.....................           3            $362           3            $362
No 3 Miner; Surface Coal; State--WV.....................           3            $300
Red Fox Surface Mine; Surface Coal; State--WV...........          10          $8,384          10          $8,384
Keystone Service Industries Inc.........................           7          $1,525           7          $1,525
Keystone No 1 Preparation Plant; Facility Coal; State--            7          $1,525           7          $1,525
 WV.....................................................
M & P Services, Inc.....................................           3          $3,109           3          $3,109
Red Fox Load-Out; Facility Coal; State--WV..............           3          $3,109           3          $3,109
NuFac Mining Company, Inc...............................          24          $6,476          24          $6,476
Buckeye Mine; Underground Coal; State--WV...............          24          $6,476          24          $6,476
Pay Car Mining Inc......................................         153        $280,086         153        $280,086
No 58; Underground Coal; State--WV......................         153        $280,086         153        $280,086
Second Sterling Corp....................................          32          $5,585          25          $4,869
Keystone No 1 Preparation Plant; Facility Coal; State--           32          $5,585          25          $4,869
 WV.....................................................
Metinvest B V...........................................         883        $505,254         203        $288,185
Banner Blue Coal Company................................         285        $192,104          87        $109,118
Apple Jacks No. 7; Underground Coal; State--VA..........          62         $30,631          18         $17,499
Locust Thicket; Underground Coal; State--VA.............         116         $60,328          27         $26,337
Paw Paw Mine; Underground Coal; State--VA...............         107        $101,145          42         $65,282
Black Diamond Company...................................          21          $6,511  ..........
Wellmore #8 Prep Plant; Facility Coal; State--VA........          21          $6,511
Carter Roag Coal Company................................         111         $92,462          35         $76,150
Pleasant Hill Mine; Underground Coal; State--WV.........         110         $92,362          35         $76,150
Star Bridge Preparation Plant-Rail Load; Facility Coal;            1            $100
 State--WV..............................................
North Star One LLC......................................           5          $1,601           4          $1,501
Tommy Creek Mine No 1; Surface Coal; State--WV..........           5          $1,601           4          $1,501
Pocahontas Coal Company, LLC............................         100         $71,448          42         $53,544
Beckley No. 1 Mine; Underground Coal; State--WV.........           2          $1,265
East Gulf Preparation Plant; Facility Coal; State--WV...           6          $5,624           4          $5,374
Josephine No 2 Mine; Underground Coal; State--WV........          33         $35,712          13         $29,497
Josephine No 3 Mine; Underground Coal; State--WV........          59         $28,847          25         $18,673
Sapphire Coal Company...................................         319        $126,675          32         $41,256
Advantage No 1; Underground Coal; State--KY.............         115         $68,264          14         $26,831
Buck Creek No 1; Surface Coal; State--KY................          13          $1,799
Sandlick II; Underground Coal; State--KY................          69         $37,263          11         $13,011
Sapphire Prep Plant; Facility Coal; State--KY...........          21          $3,955
UZ No 2; Underground Coal; State--KY....................         101         $15,394           7          $1,414
Surface Minerals Company................................          25         $12,610           3          $6,616
3 Pole; Surface Coal; State--VA.........................          11          $1,325
Convict Hollow; Surface Coal; State--VA.................           3          $3,408
Huffman Fk.; Surface Coal; State--VA....................           3            $300
Jones Fork; Surface Coal; State--VA.....................           6          $6,978           3          $6,616
Mule Hollow Surface Mine; Surface Coal; State--VA.......           2            $599
Wellmore Coal Company, LLC..............................          17          $1,843
#7 Prep Plant; Facility Coal; State--VA.................           8            $800
Nora Preparation Plant; Facility Coal; State--VA........           9          $1,043
Newmont Mining Corp.....................................         601      $1,355,470         278        $802,317
Newmont Mining Corp.....................................         601      $1,355,470         278        $802,317
Deep Post; Underground Metal; State--NV.................          77        $181,511          45        $159,868
GENESIS; Surface Metal; State--NV.......................          74        $251,687          44        $245,600
Leeville; Underground Metal; State--NV..................         107        $157,749          52        $138,300
Lone Tree Mine; Surface Metal; State--NV................          37          $7,535          12          $3,961
Midas Mine; Underground Metal; State--NV................         134        $497,469          50        $103,498
Phoenix Mine; Surface Metal; State--NV..................           9          $8,929           4          $3,418
SOUTH AREA; Surface Metal; State--NV....................         103        $200,069          55        $123,181
TWIN CREEKS MINE; Surface Metal; State--NV..............          60         $50,521          16         $24,491
Patriot Coal Corporation................................       3,851      $4,475,766       1,509      $3,530,080
Apogee Coal Company LLC.................................          59         $98,828          22         $75,236
Fanco; Facility Coal; State--WV.........................           7            $700
Guyan; Surface Coal; State--WV..........................          51         $98,028          22         $75,236
Little White Oak; Facility Coal; State--WV..............           1            $100
Catenary Coal Company LLC...............................          33          $7,547           1            $540
Samples Mine Highwall Miner; Surface Coal; State--WV....           1            $100
Samples Mine; Surface Coal; State--WV...................          29          $7,130           1            $540
Toms Fork Loadout; Facility Coal; State--WV.............           3            $317
Coal Clean LLC..........................................          20          $2,163
Coal Clean LLC; Facility Coal; State--WV................          20          $2,163
Coyote Coal Company LLC.................................           1            $100           1            $100
Buffalo No. 2 Gas Deep Mine; Underground Coal; State--WV           1            $100           1            $100
Dodge Hill Mining Company LLC...........................         178        $111,283          50         $65,287
Dodge Hill Mine #1; Underground Coal; State--KY.........         178        $111,283          50         $65,287
Eastern Associated Coal Corp............................         786        $415,477         231        $265,744
Black Oak Mine; Underground Coal; State--WV.............          60         $20,283           9          $8,517
Cow Creek Coal Blending Facility; Facility Coal; State--           1            $100
 WV.....................................................
Federal No 2; Underground Coal; State--WV...............         379        $173,177         105        $115,344
Harris No 1; Underground Coal; State--WV................         298        $215,909         116        $141,620
Harris Preparation Plant; Facility Coal; State--WV......           4            $400
Matewan Tunnel; Underground Coal; State--WV.............           7            $880           1            $263
Powellton Tunnel; Underground Coal; State--WV...........           2            $212
Rocklick Preparation Plant; Facility Coal; State--WV....          21          $3,040
Wells Preparation Plant; Facility Coal; State--WV.......           6            $600
Wharton No 1 Tunnel; Underground Coal; State--WV........           8            $876
Grand Eagle Mining, Inc.................................          34          $9,197           6          $1,484
Grand Eagle Prep Plant; Facility Coal; State--KY........          23          $6,143           1            $100
Patriot Surface; Surface Coal; State--KY................          11          $3,054           5          $1,384
Highland Mining Company.................................         672        $999,350         353        $876,774
Highland 9 Mine; Underground Coal; State--KY............         672        $999,350         353        $876,774
Highwall Mining LLC.....................................          21          $8,685
Wildcat Surface Mine; Surface Coal; State--WV...........          21          $8,685
Hobet Mining LLC........................................          58         $16,135
Beth Station No 79 Prep Plant; Facility Coal; State--WV.          16          $2,264
Hill Fork Surface Mine; Surface Coal; State--WV.........          17          $3,228
Hobet 21 Surface Mine; Surface Coal; State--WV..........          25         $10,643
I O Coal Company, LLC...................................          73         $45,728           9         $17,860
Europa Mine; Underground Coal; State--WV................          73         $45,728           9         $17,860
Little Creek LLC........................................           1            $100
Little Creek Dock; Facility Coal; State--WV.............           1            $100
Midland Trail Energy LLC................................         160         $83,210          32         $22,111
BC No. 2 Deep Mine; Underground Coal; State--WV.........          10          $2,209           3            $300
Campbells Creek No 7 Mine; Underground Coal; State--WV..         136         $79,525          27         $21,535
Campbells Creek Surface Facilities; Facility Coal;                14          $1,476           2            $276
 State--WV..............................................
Ohio County Coal Company LLC............................         271        $326,261         140        $287,489
Freedom; Underground Coal; State--KY....................         271        $326,261         140        $287,489
Peabody Coal Company....................................          81         $16,442          11          $5,079
Camp 9 Prep Plant; Facility Coal; State--KY.............          81         $16,442          11          $5,079
Pine Ridge Coal Company LLC.............................         373        $644,001         136        $468,164
Big Mountain No 16; Underground Coal; State--WV.........         354        $640,859         135        $468,064
Big Mountain Preparation Plant; Facility Coal; State--WV          19          $3,142           1            $100
Pond Fork Processing Corporation........................           4            $552  ..........
Pond Fork Processing; Facility Coal; State--WV..........           4            $552  ..........
Remington, LLC..........................................         191        $213,741          60        $163,755
Deskins Mine; Underground Coal; State--WV...............          30         $28,016          12         $18,876
Stockburg No 2; Underground Coal; State--WV.............          17         $25,675           6         $21,040
Winchester Mine; Underground Coal; State--WV............         144        $160,050          42        $123,839
Rivers Edge Mining Inc..................................          98         $51,063          28         $28,547
Rivers Edge Mine; Underground Coal; State--WV...........          98         $51,063          28         $28,547
Speed Mining Inc........................................         733      $1,424,612         429      $1,251,910
American Eagle Mine; Underground Coal; State--WV........         728      $1,422,908         429      $1,251,910
Coon Hollow Tunnel Mine; Underground Coal; State--WV....           5          $1,704
Weatherby Processing Corp...............................           4          $1,291
Remington Preparation Plant; Facility Coal; State--WV...           4          $1,291
Peabody Energy..........................................       4,394     $10,900,611       1,322      $8,639,575
Big Ridge Inc...........................................         928      $2,798,215         367      $2,468,308
Willow Lake Central Preparation Plant; Facility Coal;              3            $716
 State--IL..............................................
Willow Lake Portal; Underground Coal; State--IL.........         925      $2,797,499         367      $2,468,308
Caballo Coal Company....................................          33          $7,355           1            $634
Caballo Mine; Surface Coal; State--WY...................          24          $4,531           1            $634
Rawhide Mine; Surface Coal; State--WY...................           9          $2,824
Highland Mining Company.................................           2          $6,856           2          $6,856
Highland 9 Mine; Underground Coal; State--KY............           2          $6,856           2          $6,856
Lee Ranch Coal Co Div/Peabody Nat Resources Co..........          44         $96,676           3         $72,727
El Segundo; Surface Coal; State--NM.....................          28         $23,421           2         $13,200
Lee Ranch Coal Company; Surface Coal; State--NM.........          16         $73,255           1         $59,527
Peabody Midwest Mining, LLC.............................       2,608      $6,747,716         737      $5,290,728
Air Quality #1 Mine; Underground Coal; State--IN........       1,339      $4,630,954         555      $3,960,588
Air Quality South Wash Plant; Facility Coal; State--IN..          17          $3,683          10          $2,348
Farmersburg Mine; Surface Coal; State--IN...............          41         $31,294
Francisco Mine--Underground Pit; Underground Coal;               320        $377,076          52        $212,362
 State--IN..............................................
Francisco Mine; Surface Coal; State--IN.................          20         $28,703           3         $11,559
Gateway Mine; Underground Coal; State--IL...............         555      $1,129,068          72        $727,657
Mine No.17; Underground Coal; State--KY.................           2            $998
Preparation Plant; Facility Coal; State--IL.............          15          $5,262
Riola Complex Vermilion Grove Portal; Underground Coal;           79        $377,129          16        $304,321
 State--IL..............................................
Somerville Central Mine; Surface Coal; State--IN........          55         $39,990           2          $1,660
Viking Mine--Corning Pit; Surface Coal; State--IN.......          28         $15,053           8         $11,624
Viking Mine--Knox Pit; Surface Coal; State--IN..........          48         $61,016           7         $36,545
Wildcat Hills Mine--Cottage Grove Pit; Surface Coal;               7          $7,724           4          $6,204
 State--IL..............................................
Wildcat Hills Mine--Underground; Underground Coal;                82         $39,766           8         $15,860
 State--IL..............................................
Peabody Western Coal Company............................          80        $185,684
Kayenta Mine; Surface Coal; State--AZ...................          80        $185,684
Powder River Coal, LLC..................................          82        $100,100          20         $87,926
North Antelope Rochelle Mine; Surface Coal; State--WY...          82        $100,100          20         $87,926
Twentymile Coal Company.................................         617        $958,009         192        $712,396
Foidel Creek Mine; Underground Coal; State--CO..........         617        $958,009         192        $712,396
Richard Gilliam.........................................       2,425      $1,648,057       1,243      $1,492,963
Big Laurel Mining Corporation...........................         177        $284,546         111        $277,587
Mine No 2; Underground Coal; State--VA..................         177        $284,546         111        $277,587
Bluff Spur Coal Corporation.............................         226         $61,183         119         $49,732
Marker Portal Mine; Underground Coal; State--VA.........         139         $27,219          63         $19,432
Mine No 1; Underground Coal; State--VA..................          86         $33,864          56         $30,300
Mine No 2; Underground Coal; State--VA..................           1            $100
Cave Spur Coal LLC......................................         105        $157,721          53        $149,136
Mine #1; Underground Coal; State--KY....................         105        $157,721          53        $149,136
Cloverlick Coal Company LLC.............................         104         $55,034          61         $48,407
Mine #1; Underground Coal; State--KY....................          99         $53,454          58         $47,027
Mine #3; Underground Coal; State--KY....................           5          $1,580           3          $1,380
Dorchester Enterprises, Inc.............................         185         $76,023         139         $71,396
Mine No. 4; Underground Coal; State--VA.................         185         $76,023         139         $71,396
Guest Mountain Mining Corporation.......................         211         $64,637          98         $52,998
Mine No 3; Underground Coal; State--VA..................          13          $4,864           8          $4,347
Mine No 4; Underground Coal; State--VA..................          92         $23,024          47         $18,353
Mine No 5; Underground Coal; State--VA..................         105         $36,649          43         $30,298
Mine No. 6; Underground Coal; State--VA.................           1            $100
Mill Branch Coal Corporation............................         266         $88,574         113         $72,842
Looney Creek Taggart Mine; Underground Coal; State--VA..         116         $54,962          60         $49,259
Low Splint A Mine; Underground Coal; State--VA..........          68         $16,472          29         $12,548
Mine No. 3; Underground Coal; State--VA.................          82         $17,140          24         $11,035
Nine Mile Spur LLC......................................           2            $363           2            $363
Nine Mine Spur No 7 Strip; Surface Coal; State--VA......           2            $363           2            $363
North Fork Coal Corporation.............................         395        $558,186         167        $521,938
Mine No 4; Underground Coal; State--KY..................         281        $512,486         138        $489,224
Mine No 5; Underground Coal; State--KY..................         114         $45,700          29         $32,714
Osaka Mining Corporation................................         242         $71,360         141         $60,118
Mine No. 1; Underground Coal; State--VA.................         242         $71,360         141         $60,118
Panther Mining, LLC.....................................         209        $101,253         100         $83,379
Mine #1; Underground Coal; State--KY....................         137         $68,287          71         $57,521
Panther Mine #4a; Underground Coal; State--KY...........          72         $32,966          29         $25,858
Pigeon Creek Processing Corporation.....................          30          $4,819          13          $3,012
Plant No 1; Facility Coal; State--VA....................          30          $4,819          13          $3,012
Stillhouse Mining LLC...................................         273        $124,358         126        $102,055
Mine #1; Underground Coal; State--KY....................         154         $66,690          71         $54,883
Mine #2; Underground Coal; State--KY....................         119         $57,668          55         $47,172
Robert E Murray.........................................       2,559      $2,467,043       1,963      $2,349,683
American Energy Corp....................................         313        $115,702         244        $107,221
Century Mine; Underground Coal; State--OH...............         313        $115,702         244        $107,221
Andalex Resources Inc...................................           3            $403           1            $100
Pinnacle; Underground Coal; State--UT...................           2            $227           1            $100
Wildcat Loadout; Facility Coal; State--UT...............           1            $176
Canterbury Coal Company.................................           2            $200
Cleaning Plant; Facility Coal; State--PA................           2            $200
Genwal Resources Inc....................................           4            $552
Crandall Canyon Mine; Underground Coal; State--UT.......           1            $176
South Crandall Canyon Mine; Underground Coal; State--UT.           3            $376
Kenamerican Resources Inc...............................         559        $846,080         448        $826,366
Paradise #9; Underground Coal; State--KY................         559        $846,080         448        $826,366
Ohio American Energy Incorporated.......................          17          $7,768           6          $6,668
Salt Run Mine #1; Surface Coal; State--OH...............          13          $7,368           5          $6,568
StarRidge Preparation Plant; Facility Coal; State--OH...           4            $400           1            $100
Ohio Valley Transloading Company........................           4            $760
Powhatan Transportation Center; Facility Coal; State--OH           4            $760
The American Coal Company...............................         959      $1,057,480         779      $1,011,509
Galatia Mine; Underground Coal; State--IL...............         959      $1,057,480         779      $1,011,509
The Ohio Valley Coal Company............................         372        $249,309         297        $238,130
Powhatan No. 6 Mine; Underground Coal; State--OH........         372        $249,309         297        $238,130
Utah American Energy, Inc...............................          17          $2,832           2            $352
Lila Canyon; Underground Coal; State--UT................          17          $2,832           2            $352
West Ridge Resources Inc................................         307        $185,757         186        $159,337
West Ridge Mine; Underground Coal; State--UT............         307        $185,757         186        $159,337
West Virginia Resources Inc.............................           2            $200
Cheshire Dock; Facility Coal; State--OH.................           2            $200
Rogers Group Inc........................................         582        $281,962         258        $202,248
Mid-South Stone Inc.....................................           7          $1,115           7          $1,115
Gordonsville Plant; Facility Stone; State--TN...........           7          $1,115           7          $1,115
Reostone Llc............................................          24          $4,805          20          $4,405
Gallatin Quarry; Surface Stone; State--TN...............           2            $200
Reostone LLC; Surface Stone; State--TN..................          22          $4,605          20          $4,405
Rogers Group, Inc.......................................         551        $276,042         231        $196,728
ALGOOD QUARRY; Surface Stone; State--TN.................           7            $700
Bloomington Quarry; Surface Stone; State--IN............          24         $12,041           1            $334
Bloomington Underground Mine; Underground Stone; State--           2            $667           1            $460
 IN.....................................................
Bullitt County Stone Company; Surface Stone; State--KY..           2            $200
Cabot Quarry; Surface Stone; State--AR..................          11          $1,398
Canton Quarry; Surface Stone; State--KY.................           7          $4,693           2          $4,039
Caryville Quarry; Surface Stone; State--TN..............           7            $738
Columbia Quarry; Surface Stone; State--TN...............          20          $7,649          18          $7,449
Cowan Quarry; Surface Stone; State--TN..................           1            $190
Cross Plains Quarry; Surface Stone; State--TN...........           7          $2,520           4          $2,220
Deason Quarry; Surface Stone; State--TN.................           2            $200
Farmington Quarry; Surface Stone; State--AR.............           2            $200
FAYETTEVILLE QUARRY; Surface Stone; State--TN...........           3          $4,013
Fentress Quarry; Surface Stone; State--TN...............           2            $200
Greenbrier Quarry; Surface Stone; State--AR.............          11          $1,691          11          $1,691
Hickman County Quarry; Surface Stone; State--TN.........           8          $1,483
Hillsboro Quarry and Mill; Surface Stone; State--TN.....           8          $1,400
Hopkinsville Aggregate Quarry; Surface Stone; State--KY.           1            $100
Interstate Sand & Gravel Plant; Surface SandAndGravel;             1            $100
 State--IN..............................................
Jefferson County Stone; Underground Stone; State--KY....          12          $2,265           3          $1,073
Knox County Sand & Gravel Plant; Surface SandAndGravel;            2            $200
 State--IN..............................................
Lacey's Spring; Surface Stone; State--AL................           3            $699
LaFollette Quarry; Surface Stone; State--TN.............           7          $1,149
Lawrenceburg Quarry & Mill; Surface Stone; State--TN....          47         $12,207          11          $4,886
Lewisburg Quarry; Surface Stone; State--TN..............          10          $1,767
LIBERTY QUARRY; Surface Stone; State--TN................           8          $2,313           4          $1,621
Limestone County Quarry; Surface Stone; State--AL.......           4            $450
Lowell Quarry; Surface Stone; State--AR.................           2            $307
Lynchburg Quarry; Surface Stone; State--TN..............           5          $1,150
MARION MINE & MILL; Underground Stone; State--KY........          93         $60,429          56         $53,750
MCMINNVILLE QUARRY; Surface Stone; State--TN............           5          $1,225
Mitchell Quarry; Surface Stone; State--IN...............           9          $6,361           9          $6,361
MONROE COUNTY STONE; Surface Stone; State--TN...........           4            $760
MORGAN COUNTY SAND & GRAVEL PLANT; Surface                         1            $100
 SandAndGravel; State--IN...............................
Newton County Quarry; Surface Stone; State--IN..........          12          $1,504           7          $1,004
Oak Ridge Quarry & Mill; Surface Stone; State--TN.......           4            $756
Oldham County Stone; Underground Stone; State--KY.......           7          $2,385           2          $1,445
Owen Valley Quarry; Surface Stone; State--IN............           5            $500
Portable Plant #1; Surface Stone; State--AR.............           5          $1,023           2            $599
Pottsville Quarry; Surface Stone; State--TN.............           1            $100
Princeton Mine; Underground Stone; State--KY............          58         $32,094          42         $16,382
Princeton Quarry And Mill; Surface Stone; State--KY.....           3            $300
Pulaski Quarry; Surface Stone; State--TN................          67         $94,620          54         $92,392
RGI Cumberland Mountain Sand; Surface SandAndGravel;              13          $2,272
 State--TN..............................................
Rhea County Stone; Surface Stone; State--TN.............          10          $2,225
Roane County Quarry; Surface Stone; State--TN...........           3            $508
Rutherford Quarry; Surface Stone; State--TN.............           2            $200
Shelbyville Quarry; Surface Stone; State--TN............           9          $3,968
Sieboldt Quarry; Surface Stone; State--IN...............           1            $100
Sparta Quarry; Surface Stone; State--TN.................           4            $400
Tuscumbia Quarry; Surface Stone; State--AL..............           3            $300
Wabash Gravel; Surface SandAndGravel; State--IN.........           2            $200
Whites Creek Plant & Quarry; Surface Stone; State--TN...           4          $1,022           4          $1,022
TECO Energy Inc.........................................       1,392        $763,207         211        $371,078
Clintwood Elkhorn Mining................................         154         $82,135           2            $200
Bearwallow Surface; Surface Coal; State--VA.............           4            $400
Cedar Branch No 1; Surface Coal; State--VA..............          45         $57,305
Clintwood Elkhorn II; Facility Coal; State--KY..........          22          $2,707
Clintwood Elkhorn III; Facility Coal; State--VA.........          39          $4,943           1            $100
Laurel Branch Surface; Surface Coal; State--VA..........          36         $13,703           1            $100
Millers Creek Surface; Surface Coal; State--KY..........           7          $2,977
Turkey Pen Refuse; Surface Coal; State--KY..............           1            $100
Gatliff Coal Co., Inc...................................           2          $1,404
Gatliff Surface #3; Surface Coal; State--KY.............           2          $1,404
Perry County Coal Corp..................................       1,000        $542,526         190        $303,653
E3-1; Underground Coal; State--KY.......................         213        $151,536           6         $80,264
E4-1; Underground Coal; State--KY.......................         291        $142,314          54         $70,813
E4-2; Underground Coal; State--KY.......................         465        $244,627         129        $152,476
Preparation Plant; Facility Coal; State--KY.............          27          $3,573
Upper Second Creek Portals; Surface Coal; State--KY.....           4            $476           1            $100
Premier Elkhorn Coal Co.................................         236        $137,142          19         $67,225
#14; Underground Coal; State--KY........................          75         $47,321           6         $13,488
Burke Branch Tipple; Facility Coal; State--KY...........          44          $6,634           2            $200
Job #42; Surface Coal; State--KY........................          23          $7,884
Job #45; Surface Coal; State--KY........................          20          $4,776           3            $652
Job #49; Surface Coal; State--KY........................          16         $56,050           6         $52,685
Job 54; Surface Coal; State--KY.........................           4            $400
PE 5 Underground; Underground Coal; State--KY...........          50         $13,677           2            $200
Pe Letcher County; Surface Coal; State--KY..............           1            $100
Pe Southern Pike Co; Surface Coal; State--KY............           3            $300
Vulcan Materials Company................................         809        $235,178         215        $101,309
Cal Mat Co..............................................          90         $24,754           9         $10,883
AVONDALE PLANT; Surface SandAndGravel; State--AZ........           1            $100
Azusa Rock; Surface Stone; State--CA....................           7          $1,278
Big Rock Creek; Surface SandAndGravel; State--CA........           4            $462
Carroll Canyon Plant; Surface SandAndGravel; State--CA..           1            $100
Durbin Plant; Surface SandAndGravel; State--CA..........           5            $643
LITCHFIELD PLANT; Surface SandAndGravel; State--AZ......           2            $200
MARANA PLANT; Surface SandAndGravel; State--AZ..........           5          $5,547           3          $5,347
Mission Valley Plant; Surface SandAndGravel; State--CA..           2            $200
Palmdale Plant; Surface SandAndGravel; State--CA........           3            $300
Pleasanton Plant; Surface SandAndGravel; State--CA......          10          $2,028
Reliance Plant; Surface SandAndGravel; State--CA........           6            $743           1            $100
River Rock Plant; Surface SandAndGravel; State--CA......           5            $500
San Bernardino Plant; Surface SandAndGravel; State--CA..           3          $1,131
San Emidio Plant; Surface SandAndGravel; State--CA......           6          $2,338           1            $807
Sanger Plant; Surface SandAndGravel; State--CA..........          11          $1,629
SANTO DOMINGO PUEBLO MINE; Surface SandAndGravel; State--          4          $4,683           1          $4,329
 NM.....................................................
Shakespeare Pit; Surface SandAndGravel; State--NM.......           2            $200           1            $100
Sun Valley Plant; Surface SandAndGravel; State--CA......           7          $2,072
Upland Plant; Surface SandAndGravel; State--CA..........           2            $200
VAL VISTA--CITRUS GROVE 150; Surface SandAndGravel;                2            $200           2            $200
 State--AZ..............................................
West Plant; Surface SandAndGravel; State--AZ............           1            $100
Wheeler Ridge Plant; Surface SandAndGravel; State--CA...           1            $100
Florida Rock Industries.................................         103         $22,231          64         $16,716
Astatula Sand Plant; Surface SandAndGravel; State--FL...           6            $600           2            $200
BAINBRIDGE SAND PLANT; Surface SandAndGravel; State--GA.           2            $200
Calcium Plant; Surface Stone; State--FL.................           4            $987           3            $887
Diamond Sand Plant; Surface SandAndGravel; State--FL....           2            $734
Fort Myers Mine; Surface Stone; State--FL...............           2            $352
Fort Pierce Mine; Surface Stone; State--FL..............           1            $100
Grandin Sand Plant; Surface SandAndGravel; State--FL....           2            $380           2            $380
Keuka Sand Plant; Surface SandAndGravel; State--FL......           2            $238           1            $138
Miami Quarry; Surface Stone; State--FL..................           6            $929           2            $324
POLK SAND PLANT; Surface SandAndGravel; State--FL.......           4          $1,123           3            $985
Tampa Cement Grinding Plant; Facility Stone; State--FL..          36          $8,334          32          $7,934
TAMPA SALES YARD; Facility Stone; State--FL.............          11          $2,594           4          $1,775
TSB CEMENT PLANT; Facility Stone; State--FL.............          17          $4,251          11          $3,146
Turnpike Sand; Surface SandAndGravel; State--FL.........           4            $902           3            $740
Witherspoon Sand Plant; Surface SandAndGravel; State--FL           4            $507           1            $207
TCS Materials Inc.......................................           1            $308           1            $308
Elkton Plant; Surface Stone; State--VA..................           1            $308           1            $308
Tidewater Quarries, Inc.................................           1            $100           1            $100
Augusta Plant; Surface Stone; State--VA.................           1            $100           1            $100
Triangle Rock Products Inc..............................          10          $1,759
TRP-Los Banos Plant; Surface SandAndGravel; State--CA...           6          $1,245
TRP-Sacramento Plant; Surface SandAndGravel; State--CA..           4            $514
VULCAN CONSTR. MATERIALS, L.P...........................         604        $186,026         140         $73,302
115 QUARRY; Surface Stone; State--NC....................           1            $100           1            $100
Abilene Black Lease Quarry; Surface Stone; State--TX....           5            $500
Adairsville Quarry; Surface Stone; State--GA............           3            $548           3            $548
ANDERSON QUARRY; Surface Stone; State--SC...............           2            $200
ATHENS QUARRY; Surface Stone; State--TN.................           1            $100           1            $100
Barin Quarry; Surface Stone; State--GA..................          10          $2,937           4          $1,325
Bartlett Underground Mine; Underground Stone; State--IL.           5            $858           2            $324
BARTOW QUARRY; Surface Stone; State--GA.................           5          $1,194           5          $1,194
Benton County Quarry; Surface Stone; State--TN..........          21          $5,541
BESSEMER QUARRY; Surface Stone; State--AL...............           3            $300           2            $200
BLACKSBURG QUARRY; Surface Stone; State--SC.............           5            $815
BLAIR QUARRY; Surface Stone; State--SC..................           2            $227
BLAIRSVILLE QUARRY; Surface Stone; State--GA............           2          $9,938           2          $9,938
Bolingbrook Underground; Underground Stone; State--IL...           2            $200
BOONE QUARRY; Surface Stone; State--NC..................           1            $100           1            $100
BRISTOL QUARRY; Surface Stone; State--TN................           4            $427
Brownwood Quarry; Surface Stone; State--TX..............           7          $1,086           3            $686
Cabarrus Quarry; Surface Stone; State--NC...............           1            $100           1            $100
CALERA QUARRY; Surface Stone; State--AL.................           3            $390
CENTRAL SERVICE; Facility Stone; State--NC..............           1            $100
Central; Underground Stone; State--KY...................           9          $4,514
CHATTANOOGA QUARRY; Surface Stone; State--TN............           3            $443
Cherokee Quarry; Surface Stone; State--AL...............           2            $250
CHILDERSBURG QUARRY; Surface Stone; State--AL...........           2            $288
CLARKSVILLE QUARRY; Surface Stone; State--TN............           2            $200
CLEVELAND QUARRY; Surface Stone; State--TN..............           1            $100           1            $100
COLUMBIA QUARRY; Surface Stone; State--SC...............           4            $524
Columbia Quarry; Surface Stone; State--TN...............           1            $634
Columbia Quarry; Underground Stone; State--TN...........           7          $4,854           7          $4,854
COOKEVILLE QUARRY; Surface Stone; State--TN.............           3            $300
Dahlonega Quarry; Surface Stone; State--GA..............           2            $200
DALTON QUARRY; Surface Stone; State--GA.................           2            $200
DANLEY; Surface Stone; State--TN........................           4            $400
Daugherty Plant; Surface SandAndGravel; State--IN.......           2            $234
De Kalb Quarry; Surface Stone; State--IL................           1            $100
Dickson Quarry; Surface Stone; State--TN................           1            $100
Dolcito Quarry; Surface Stone; State--AL................           4            $667
Dousman Pit; Surface SandAndGravel; State--WI...........           3            $300
DREYFUS QUARRY; Surface Stone; State--SC................           2          $2,484
East Forsyth; Surface Stone; State--NC..................           1            $138
ELKIN; Surface Stone; State--NC.........................           1            $634
Enka; Surface Stone; State--NC..........................           1            $100           1            $100
Ensley Central Services; Facility Stone; State--AL......           1            $100           1            $100
Forest Park Quarry; Surface Stone; State--GA............           4            $624           1            $100
Fort Knox Quarry; Surface Stone; State--KY..............           4            $400
Fort Payne Quarry; Surface Stone; State--AL.............           8            $876           1            $100
Francesville Quarry; Surface Stone; State--IN...........           2            $200
Franklin Quarry; Surface Stone; State--TN...............          10          $2,112
Franklin Quarry; Surface Stone; State--WI...............          20         $11,048          16         $10,598
Frederick Quarry; Surface Stone; State--MD..............           2            $200
Geronimo Creek Quarry; Surface Stone; State--TX.........           1            $100
GLENCOE QUARRY; Surface Stone; State--AL................           1            $150
GOLD HILL; Surface Stone; State--NC.....................           2            $200           2            $200
GRAHAM-VIRGINIA; Surface Stone; State--VA...............           5          $1,207           2            $702
Grand Rivers Quarry; Surface Stone; State--KY...........          17          $2,608           5          $1,087
GRAY COURT QUARRY; Surface Stone; State--SC.............           1            $150
Grayson Quarry; Surface Stone; State--GA................           6            $900
GREENWOOD QUARRY; Surface Stone; State--SC..............           1          $5,503
GRIFFIN QUARRY; Surface Stone; State--GA................           2            $200
Groesbeck Quarry; Surface Stone; State--TX..............           3            $548           2            $324
HANOVER QUARRY; Surface Stone; State--PA................           3            $300
Hardin County Quarry; Surface Stone; State--KY..........           5          $1,050
Harrison County Quarry; Surface Stone; State--IN........           2            $234
HAVRE DE GRACE QUARRY; Surface Stone; State--MD.........           2            $352
HELENA QUARRY; Surface Stone; State--AL.................           3            $300
Helotes Quarry; Surface Stone; State--TX................           5            $929           5            $929
HENDERSONVILLE; Surface Stone; State--NC................           4          $1,025           4          $1,025
Hermitage Quarry; Surface Stone; State--TN..............           3            $300
HOUSTON SALES YARD; Facility Stone; State--TX...........           1            $100
Huebner Road Quarry; Surface Stone; State--TX...........           7          $1,224
HUNTSVILLE NORTH QUARRY; Surface Stone; State--AL.......           8          $1,110           1            $100
JACK PLANT; Surface Stone; State--VA....................           6            $929
Kankakee Quarry & Mill; Surface Stone; State--IL........           2            $200
KENNESAW QUARRY; Surface Stone; State--GA...............           1            $176
KINGSPORT QUARRY; Surface Stone; State--TN..............           3            $354
Knippa Quarry; Surface Stone; State--TX.................           5          $3,607
KODAK QUARRY; Surface Stone; State--TN..................           5          $2,561           1          $2,161
La Grange Quarry; Surface Stone; State--GA..............           1            $100
LACON QUARRY; Surface Stone; State--AL..................           2            $200           1            $100
Lakeside Quarry; Surface Stone; State--SC...............          16          $3,968           1            $100
Laraway Quarry; Surface Stone; State--IL................           2            $845
LAWRENCEVILLE; Surface Stone; State--VA.................           3            $362
Lemont Underground Limestone; Underground Stone; State--          10          $2,552           4          $1,512
 IL.....................................................
Lenoir; Surface Stone; State--NC........................           1            $100           1            $100
LIBERTY QUARRY; Surface Stone; State--SC................           1            $100
LITHIA SPRINGS QUARRY; Surface Stone; State--GA.........           6         $12,205           3         $11,843
LOWELL QUARRY; Surface Stone; State--IN.................           3            $300
LYMAN QUARRY; Surface Stone; State--SC..................           7          $1,074           1            $224
MACON QUARRY; Surface Stone; State--GA..................           6            $676
Macon; Surface SandAndGravel; State--IL.................           1            $100
Madras Quarry; Surface Stone; State--GA.................           6          $1,512
MANASSAS; Surface Stone; State--VA......................           5          $3,700           1          $3,224
MARYVILLE QUARRY; Surface Stone; State--TN..............           1            $100
MAYNARDVILLE QUARRY; Surface Stone; State--TN...........          14          $6,144           3          $1,204
McCook Quarry; Surface Stone; State--IL.................          19          $5,728           8          $4,303
Midsouth Machine Service; Facility Stone; State--TN.....           1            $100
Monon Quarry; Surface Stone; State--IN..................           3            $300
MORGANTON; Surface Stone; State--NC.....................           2            $200           1            $100
MORRISTOWN QUARRY; Surface Stone; State--TN.............           2            $200
Norcross Quarry; Surface Stone; State--GA...............           3            $463
Norcross Shop; Surface Stone; State--GA.................           2            $217
NORTH QUARRY; Surface Stone; State--NC..................           1            $100
Norton Quarry; Surface Stone; State--VA.................           4            $434           1            $100
Notasulga Quarry; Surface Stone; State--AL..............           2            $200
OHATCHEE QUARRY; Surface Stone; State--AL...............           1            $138
Oshkosh Quarry; Surface Stone; State--WI................           4            $544
PACOLET QUARRY; Surface Stone; State--SC................           4          $1,374
Parsons Quarry; Surface Stone; State--TN................          13         $24,772           2          $3,881
Pineville; Surface Stone; State--NC.....................           3            $443           1            $243
PLEASANT VIEW QUARRY; Surface Stone; State--TN..........           2            $324
Pocomoke City Sand & Gravel; Surface SandAndGravel;                7          $1,002           4            $702
 State--MD..............................................
Polk County Quarry; Surface Stone; State--TN............           1            $100
PRIDE QUARRY; Surface Stone; State--AL..................          10          $1,594
Puddledock Sand & Gravel; Surface SandAndGravel; State--           2            $957
 VA.....................................................
RABUN QUARRY; Surface Stone; State--GA..................           5            $500
Racine Quarry; Surface Stone; State--WI.................           3            $534
Richard City Underground/Surface; Underground Stone;               3            $376
 State--TN..............................................
Richmond Quarry; Surface Stone; State--VA...............           6            $759           2            $216
Richmond Road; Underground Stone; State--KY.............           9          $1,974
River Road Quarry; Surface Stone; State--TN.............           1            $100
Rochester Sand & Gravel; Surface SandAndGravel; State--            3            $785           1            $585
 IL.....................................................
ROCKINGHAM; Surface Stone; State--NC....................           4          $1,173
ROCKMART QUARRY; Surface Stone; State--GA...............           2            $845           2            $845
SANDERS; Surface Stone; State--VA.......................           2            $343           1            $100
Savannah Quarry; Surface Stone; State--TN...............           8          $3,121           3          $1,851
SCOTTSBORO QUARRY; Surface Stone; State--AL.............           5            $617           1            $190
Searcy Quarry; Surface Stone; State--AR.................           4            $758           1            $334
SEVIERVILLE QUARRY; Surface Stone; State--TN............           4            $450
Shelbyville Quarry; Surface Stone; State--TN............          11          $1,805           3            $861
Shelton; Surface Stone; State--NC.......................           1            $100
Simonton Sand Plant; Surface SandAndGravel; State--TX...           3            $924           2            $824
SKIPPERS; Surface Stone; State--VA......................           1            $100
Spicewood Quarry; Surface Stone; State--TX..............           1            $100           1            $100
SPRINGFIELD QUARRY; Surface Stone; State--TN............           7          $1,395           7          $1,395
Stockbridge Quarry; Surface Stone; State--GA............           1            $162
Sussex Quarry; Surface Stone; State--WI.................           2            $200
SWISHER; Surface SandAndGravel; State--IN...............           1            $263
SYCAMORE QUARRY; Surface Stone; State--IL...............           7          $3,818
TAZEWELL QUARRY; Surface Stone; State--TN...............           7          $1,816           3            $670
Tehuacana Quarry; Surface Stone; State--TX..............           6            $650           1            $100
TRINITY QUARRY; Surface Stone; State--AL................           2            $212           1            $100
TUSCALOOSA QUARRY; Surface Stone; State--AL.............           3            $534
Tuscumbia Quarry; Surface Stone; State--AL..............           3            $300
Uvalde Quarry; Surface Stone; State--TX.................           5          $1,228
VULCAN FAB SHOP; Facility Stone; State--SC..............           2            $227
Weatherford Quarry; Surface Stone; State--TX............           5            $500           2            $200
Wilson County Quarry; Surface Stone; State--TN..........           5            $527
York Plant; Surface Stone; State--PA....................           4            $400           2            $200
Walter Energy Incorporated..............................         862      $1,205,776         250        $945,616
Jim Walter Resources, Inc...............................         833      $1,197,689         250        $945,616
Central Shop; Facility Coal; State--AL..................           5            $562
Central Supply; Facility Coal; State--AL................           4            $400
No 4 Mine; Underground Coal; State--AL..................         428        $620,857         136        $466,766
No 7 Mine; Underground Coal; State--AL..................         395        $575,770         114        $478,850
No. 3 Mine; Facility Coal; State--AL....................           1            $100
Taft Coal Sales & Associates Inc........................          13          $3,216
Choctaw Mine; Surface Coal; State--AL...................          13          $3,216
Tuscaloosa Resources, Inc...............................          16          $4,871
East Brookwood Mine; Surface Coal; State--AL............          11          $4,137
Highway 59 Mine No. 1; Surface Coal; State--AL..........           1            $100
Howton Mine; Surface Coal; State--AL....................           4            $634
Wexford Capital LLC.....................................       1,296      $1,308,115         366      $1,013,846
Cam Ohio, L.L.C.........................................         143        $119,992          25         $57,227
Hopedale Mine; Underground Coal; State--OH..............         132        $118,420          25         $57,227
Nelms Prep; Facility Coal; State--OH....................          11          $1,572
Central Appalachia Mining, LLC..........................         655        $965,793         252        $861,933
Bevins Branch #1; Surface Coal; State--KY...............          15         $21,413           3         $19,503
Calloway North; Surface Coal; State--KY.................          18          $4,057
Dorton E 3; Underground Coal; State--KY.................          24          $3,821
Grapevine South Surface Mine; Surface Coal; State--WV...          28         $11,192          14          $9,352
Jamboree Loadout; Facility Coal; State--KY..............           3            $335
Marion Branch; Surface Coal; State--KY..................          13          $6,136           1          $1,530
Mine #23; Underground Coal; State--KY...................          11          $1,977
Mine #25A; Underground Coal; State--KY..................           4          $3,632
Mine #28; Underground Coal; State--KY...................         430        $859,586         215        $820,244
Mine #30; Underground Coal; State--KY...................           5          $2,454
Mine #32; Underground Coal; State--KY...................          17          $5,251
Remining No 1; Surface Coal; State--WV..................           1            $540
Rob Fork Contour; Surface Coal; State--KY...............          14          $3,729
Rob Fork Processing; Facility Coal; State--KY...........          55         $17,514          19         $11,304
S-1 Hunts Br.; Surface Coal; State--KY..................           3         $20,700
Slate Branch; Surface Coal; State--KY...................           2            $200
Thacker Preparation Plant; Facility Coal; State--WV.....           5            $940
Three Mile Mine #1; Surface Coal; State--KY.............           7          $2,316
Clinton Stone LLC.......................................           4            $400
Clinton Stone; Facility Stone; State--OH................           4            $400
Deane Mining LLC........................................         278        $113,443          67         $66,511
Deane #1; Underground Coal; State--KY...................         129         $41,900          18         $11,067
Love Branch; Underground Coal; State--KY................         104         $59,664          40         $47,846
Mill Creek Prep Plant; Facility Coal; State--KY.........          45         $11,879           9          $7,598
McClane Canyon Mining, LLC..............................          70         $42,191
Mc Clane Canyon Mine; Underground Coal; State--CO.......          70         $42,191
Rhino Eastern LLC.......................................         134         $64,039          22         $28,175
Eagle #1; Underground Coal; State--WV...................         114         $60,536          22         $28,175
Eagle #2 Mine; Underground Coal; State--WV..............          19          $3,403
Sewell Mine No. 1; Underground Coal; State--WV..........           1            $100
Rhino Services LLC......................................           8          $1,355
Calloway South; Surface Coal; State--KY.................           8          $1,355
Sands Hill Mining LLC...................................           4            $902
Sands Hill Dock; Facility Coal; State--OH...............           1            $100
Sands Hill Strip; Surface Coal; State--OH...............           3            $802  ..........
----------------------------------------------------------------------------------------------------------------
      Grand Total.......................................      68,825     $78,835,254      27,072     $60,811,780
----------------------------------------------------------------------------------------------------------------

                                ------                                

                                       [Via Email],
                                             U.S. Congress,
                                 Washington, DC, February 26, 2010.
Mr. Bruce Watzman, Senior Vice President for Regulatory Affairs,
National Mining Association, 101 Constitution Avenue, NW, Suite 500 
        East, Washington, DC.
    Dear Mr. Watzman: Thank you for testifying at the Committee's 
hearing, ``Reducing the Growing Backlog of Contested Mine Safety 
Cases'' held on Tuesday, February 23, 2010.
    I have three additional questions to which I would like you to 
provide a written response for the hearing record:
    1. Is it in the interest of the members of the National Mining 
Association to have a backlog of 16,000 cases at the Review Commission?
    2. In addition to the administrative reforms discussed by MSHA at 
the hearing on February 23, does the National Mining Association 
support the President's FY 11 budget request for the Review Commission 
which will add 4 more Administrative Law Judges (ALJs) for a total of 
18?
    3. Would the National Mining Association support adding funds for 
the Review Commission to hire additional ALJs above and beyond the 
President's budget request to begin the work of eliminating the backlog 
over a 3 year period?
    Please send your written response to the Committee by COB on 
Tuesday, March 9th--the date on which the hearing record will close. If 
you have any questions, please contact the Committee at 202-225-3725. 
Once again, we greatly appreciate your testimony at this hearing.
            Sincerely,
                                   George Miller, Chairman.
                                 ______
                                 
                                     Washington, DC, March 4, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, U.S. House of Representatives, 2181 
        Rayburn House Office Building, Washington, DC.
    Dear Mr. Chairman: I want to thank you again for providing the 
National Mining Association (NMA) the opportunity to testify at the 
Committee's hearing, ``Reducing the Growing Backlog of Contested Mine 
Safety Cases,'' On Feb. 26, I received your letter that contained three 
additional questions. The following are our responses.

    Question 1--Is it in the interest of members of the National Mining 
Association to have a backlog of 16,000 cases at the Review Commission?

    Response: No. Swift adjudication is better for everyone. Workers 
and certified people need to know the proper interpretation of the law. 
Two year delays result in unnecessary confusion. The industry gains 
when citation issues are postponed. Any perceived gain in penalty 
payments, involvement with a Pattern of Violation (POV) or repeat 
history is really just a postponement--not a gain. Cases that become a 
final order are used in POV and repeat violation calculations. On the 
minus side, mass docket settlements are frequent, and the mine's 
history is skewed as the violations in the final order are from a 
number of quarterly inspections, including some from the distant past, 
rather than the mine's most recent inspection history.
    Furthermore, any controversial interpretation of a regulation by an 
inspector in today's backlogged system does not get clarified in a 
timely manner. Since the industry is obligated to abate a violation--
whether the operator believes it is issued in error or not--certified 
persons and workers are left confused. By the time the issue is heard 
by an administrative law judge, the mine has most likely changed its 
practices to meet an improper interpretation, causing confusion in 
training/ retraining to suit that false interpretation.
    We believe most industry representatives would like to see the 
backlog eliminated as quickly as possible so that discussions between 
agency and industry personnel--and, where necessary, representatives of 
the Commission--deal with issues that are current and not muddied by 
historic recollection.

    Question 2--In addition to the administrative reforms discussed by 
MSHA at the hearing on February 23, does the National Mining 
Association support the President's FY 11 budget request for the Review 
Commission which will add 4 more Administrative Law Judges (ALJs) for a 
total of 18?

    Response: The National Mining Association has not taken a position 
on the President's budget request for the Review Commission. While we 
understand the basis for this request, we think solving this problem 
will require consideration of actions beyond hiring additional ALJs.
    During the course of the hearing, the Assistant Secretary for Mine 
Safety and Health identified several actions the agency is considering 
to address this situation. We look forward to discussing these with him 
and offering our ideas to address the backlog. The hiring of more ALJs 
should be considered as part of a more comprehensive strategy as we do 
not believe that it, in and of itself, will be sufficient to address 
the concerns that we collectively share regarding the current backlog.

    Question 3--Would the National Mining Association support adding 
funds for the Review Commission to hire additional ALJs above and 
beyond the President's budget request to begin the work of eliminating 
the backlog over a 3 year period?

    Response: See response to question 2. We do not believe that 
focusing solely on the hiring of more ALJs is sufficient to eliminate 
the backlog in a timely manner. We recommend expanding the Commission's 
settlement counsel process that was established by former Commission 
Chairman Duffy and exploring mechanisms to use processes short of 
formal ALJs hearing to expedite this process.
    Thank you again for providing us the opportunity to share our 
thoughts on this important matter. We look forward to having the 
opportunity to further discuss this with you.
            Sincerely,
                                             Bruce Watzman,
                            Sr. Vice President, Regulatory Affairs.
                                 ______
                                 
    [Additional submissions of Mr. Miller follow:]

            Federal Mine Safety and Health Review Commission

       Justification of Appropriation Estimates for Committee on 
                             Appropriations

                            Fiscal Year 2011

                                           PERFORMANCE MEASUREMENT MATRIX OFFICE OF ADMINISTRATIVE LAW JUDGES
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 FY2005      FY2006     FY2007      FY2008           FY2009           FY2010     FY2011
                                                              ------------------------------------------------------------------------------------------
                                                                 Actual      Actual     Actual      Actual       Goal      Actual      Goal       Goal
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     OBJECTIVE 1: ISSUE OPINIONS IN A TIMELY MANNER
                      Average time (days) for                 73         78          89         135         81        266         95         75
                               assignment of penalty cases.
                      Average time (days) for                 27         24          29          82         35         87         40         30
                               assignment of review cases.
                              Average time (days) for                 61         53          65         123         70        214         80         60
                               assignment of all cases.
                      Percentage of decisions issued         96%        88%         69%         60%        90%        86%        65%        85%
                               within 180 days of post-
                               hearing brief.
                      Percentage of settlement               90%        96%         80%         73%        90%        61%        65%        85%
                               approvals issued within 60
                               days of settlement motion.
                              Average time (months), case        62 days    62 days     63 days    164 days         15        3.5         21         16
                               assignment to disposition.
                      Average time (months), case       121 days        N/A    128 days    291 days         12       10.5         24         18
                               receipt to disposition.
                      Percentage of cases decided            97%        98%         97%         79%        90%        92%        70%        90%
                               within 365 days of assignment.
                              Undecided cases over 365 days           18          5          71         687          0      3,738     11,500     13,000
                               of age.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Information on performance measurement is currently not available.


                     FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION APPROPRIATIONS HISTORY
----------------------------------------------------------------------------------------------------------------
                                           Budget Estimate                Senate
                 Fiscal                       House to     ------------------------------------   Appropriation
                                              Congress          Allowance         Allowance
----------------------------------------------------------------------------------------------------------------
1986....................................         3,709,000         3,815,000         3,815,000   \(1)\ 3,651,000
1987....................................         3,919,000         3,651,000         3,919,000         3,785,000
1988....................................         4,139,000         4,080,000         4,080,000   \(2)\ 3,892,000
1989....................................         4,079,000         4,079,000         4,079,000   \(3)\ 4,030,000
1990....................................         4,005,000         4,030,000         4,030,000         4,030,000
1991....................................         4,292,000         4,292,000         4,292,000   \(4)\ 4,188,509
1992....................................         4,719,000         4,357,000         4,357,000         5,143,000
1993....................................         5,830,000         5,772,000         5,772,000   \(5)\ 5,726,000
1994....................................         5,842,000         5,842,000         5,842,000         5,842,000
1995....................................         6,237,000         6,200,000         6,200,000   \(6)\ 6,189,000
1996....................................         6,467,000         6,467,000         6,200,000   \(7)\ 6,184,000
1997....................................         6,332,000         6,060,000         6,060,000   \(8)\ 6,049,000
1998....................................         6,060,000         6,060,000         6,060,000         6,060,000
1999....................................         6,060,000         6,060,000         6,060,000         6,060,000
2000....................................         6,159,000         6,060,000         6,159,000   \(9)\ 6,136,000
2001....................................         6,320,000         6,200,000         6,320,000         6,320,000
2002....................................         6,939,000         6,939,000         6,939,000  \(10)\ 6,934,000
2003....................................         7,127,000  ................  ................  \(11)\ 7,131,343
2004....................................         7,774,000         7,774,000         7,774,000  \(12)\ 7,728,133
2005....................................         7,813,000         7,813,000         7,813,000  \(13)\ 7,809,024
2006....................................         7,809,000         7,809,000         7,809,000  \(14)\ 7,730,910
2007....................................         7,576,000         7,731,000         7,731,000  \(15)\ 7,777,652
2008....................................         8,096,000         8,096,000         7,954,563         7,954,563
2009....................................         8,653,000         8,653,000         8,653,000         8,653,000
2010....................................         9,857,567         9,857,567        10,358,000  \(16)\ 10,358,00
                                                                                                               0
2011....................................        13,105,000  ................  ................  ................
----------------------------------------------------------------------------------------------------------------
\1\ Reflects reduction of $164,000 pursuant to P.L. 99-177.
\2\ Reflects reduction of $14,000 pursuant to Sec. 512 of P.L. 100-202.
\3\ Reflects reduction of $49,000 pursuant to Sec. 517 of P.L. 100-436.
\4\ Reflects reduction of $103,437 pursuant to Sec. 514(b) of P.L. 101-517 and $54 pursuant to P.L. 99-177.
\5\ Reflects reduction of $46,000 pursuant to Sec. 511 of P.L. 102-394.
\6\ Reflects reduction of $11,000 pursuant to Sec. 2007 of P.L. 104-19.
\7\ Reflects reduction of $9,000 pursuant to Sec. 513 and $7,000 pursuant to Sec. 31002 of P.L. 104-134.
\8\ Reflects reduction of $11,000 pursuant to Sec. 519 of P.L. 104-208.
\9\ Reflects reduction of $23,000 pursuant to the Consolidated Appropriations Act for 2000, P.L. 106-113.
\10\ Reflects reduction of $5,000 pursuant to Sectiom1403 of P.L. 107-206.
\11\ Reflects adjustments pursuant to the Omnibus Appropriations Act, P.L. 108-7.
\12\ Reflects reduction of $45,867 pursuant to the Consolidated Appropriations Act, P.L. 108-199.
\13\ Reflects a congressional add-on of $59,000 and a reduction of $62,976 pursuant to section 122(a) of P.L.108-
  447.
\14\ Reflects reduction of $78,090 pursuant to Title III, Chapter 8, of the Department of Defense Appropriations
  Act, P.L. 109-148.
\15\ Reflects reduction of $144,437 pursuant to Sec. 528(a) of P.L.
\16\ Reflects Senate Approved Mark-up of $500,000 pursuant of P.L.


 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION SELECTED WORKLOAD DATA
------------------------------------------------------------------------
                                   2009 Actual   2010 est.    2011 est.
------------------------------------------------------------------------
Commission Review Activities:
    Cases pending beginning of             103           95          105
     year........................
    New cases received...........          184          200          205
    Total case workload..........          287          295          310
    Cases decided................          192          190          195
    Cases pending end of year....           95          105          115
Administrative Law Judges
 Activities:
    Cases pending beginning of           9,737       14,213       18,247
     year........................
    New cases received...........        9,239        9,200        9,200
    Total case workload..........       18,976       23,413       27,447
    Cases decided................        4,766        5,166        7,750
    Cases pending end of year....       14,213       18,247       19,697
------------------------------------------------------------------------

                                 ______
                                 

                                                                                   FOLLOWUP ON MSHA ERP STATS
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Dist 01    Dist 02   Dist 03   Dist 04    Dist 05   Dist 06   Dist 07   Dist 08   Dist 09    Dist 10    Dist 11    National
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
How many mines require a plan?...................................         9        36        29        146        58        79        68        20         23        12           7         487
How many plans submitted?........................................         9        36        29        146        58        79        68        20         23        12           7         487
How many plans approved?.........................................         3        35        27        118        40        78        59         6          8        12           6         392
How many plans pending?..........................................         6         1         2         28        18         1         9        14         15         0           1          95
How many mines with tracking and communications equipment                 0         0         3         20         0         2        10         1          0        10           0          46
 installed and operational?......................................
How many mines in your district have a system completely                  0         0         3         20         0         2         8         1          0         0           0          34
 installed and operational?......................................
How many mines in your district have the areas installed and              0         0         2         66         3         1        10         4          0         6           0          92
 operational outby the tailpiece?................................
How many mines in your district are in the process of installing          0        14        16         46        11         9        13         2          5        10           2         128
 a system?.......................................................
In your district, what percentage of refuge chambers is installed    100.0%     94.0%     96.6%     100.0%     93.0%     81.0%     86.1%     95.0%     100.0%     92.0%     (*)5.0%   ..........
 and ready for operation underground?............................
Have all of the initial back orders of SCSRs needed to comply           Yes       Yes       Yes        Yes       Yes       Yes       Yes       Yes        Yes       Yes         Yes   ..........
 with the Miner Act been filled?.................................
How many of the underground coal mines have installed Refuge              2        32        28        122        46        41        46        18         19        11           3         368
 Alternatives?...................................................
If so, how many prefabricated units have been installed?.........         0        94        95        276        87        83        92        98         83        46          12         966
If so, how many units consisting of 15-psi stoppings have been            0         1         1         28         0         0         0         1          8         0           0          39
 installed?......................................................
How many mines are using pre-positioned materials (barricades)?..         0         0         2          4        12        22        29         3          3         4           6          85
If so, how many pre-positioned (barricade) units have been                0         0         2          6        20        37        62        13          6        16          25         187
 installed?......................................................
Are any mines currently out of compliance with the requirements          No        No        No         No       Yes        No        No        No         No       Yes          No   ..........
 for a refuge in coal mines?.....................................
If so, are there enforcement actions pending? At which mines?**..        No        No        No         No       Yes        No        No        No         No        No          No   ..........
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
*Note: See Details/Comments for D11 in attachment.
**If your district has mines out of compliance, provide a list of those mines to headquarters via e-mail. Also specify which of those has enforcement actions pending.Note: As new mines are advancing and older mines are retreating, the numbers in this table can change weekly.Updated as of 02/19/2010.

                                ------                                

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                ------                                


                   MINE OPERATORS NOTIFIED BY MSHA OF A POTENTIAL PATTERN OF VIOLATIONS (POV)
----------------------------------------------------------------------------------------------------------------
                         Mine Operator                  Date(s) Notified            Type of Mine       Location
----------------------------------------------------------------------------------------------------------------
      1      Blue Diamond Coal Co................     June 2007, June 2008 &                       Coal      KY
                                                                  March 2009
      2      Elk Run Coal Co.....................     June 2007 & March 2009                       Coal      WV
      3      Tilden Mining Co....................      June 2007 & June 2008                   Iron          MI
      4      Argus Energy WV, LLC................       Dec 2007 & June 2008                       Coal      WV
      5      Double Bonus Coal Co................       Dec 2007 & June 2008                       Coal      WV
      6      Independence Coal Co., Inc..........      Dec 2007 & March 2009                       Coal      WV
      7      D&C Mining Corp.....................       Dec 2007 & June 2008                       Coal      KY
      8      Excel Mining Co.....................       Dec 2007 & June 2008                       Coal      KY
      9      Rockhouse Energy Mining Co..........     June 2008 & March 2009                       Coal      KY
     10      Peachtree Ridge Mining Co...........                  June 2007                       Coal      WV
     11      Oak Grove Resources.................                  June 2007                       Coal      AL
     12      Marfork Coal Co. Inc................                   Dec 2007                       Coal      WV
     13      Performance Coal Co.................                   Dec 2007                       Coal      WV
     14      Bledsoe Coal Corp...................                   Dec 2007                       Coal      KY
     15      Bardo Mining, LLC...................                   Dec 2007                       Coal      KY
     16      Riverside Cement Co.................                  June 2007              Non-metal            CA
     17      National Coal Corp..................                   Dec 2007                       Coal      TN
     18      RB #10 Mine.........................                   Dec 2007                       Coal      KY
     19      Shamrock Coal Co....................                   Dec 2007                       Coal      KY
     20      Kosmos Cement Co....................                   Dec 2007              Non-metal          KY
     21      Left Fork Mining Co., Inc...........                  June 2007                       Coal      KY
     22      Sidney Coal.........................                   Dec 2007                       Coal      KY
     23      Black Dog Coal Corp.................                   Dec 2007                       Coal      VA
     24      Commonweath Mining, LLC.............                   Dec 2007                       Coal      VA
     25      Regent Allied Carbon Energy, Inc....                   Dec 2007                       Coal      VA
     26      Progress Coal.......................                   Dec 2007                       Coal      WV
     27      Rivers Edge Mining, Inc.............                   Dec 2007                       Coal      MO
     28      Carter Roag Coal Co.................                  June 2008                       Coal      WV
     29      NFC Mining, Inc.....................                  June 2008                       Coal      KY
     30      McElroy Coal Co.....................                   Dec 2007                       Coal      PA
     31      Carmeuse Lime and Stone, Inc........                  June 2008              Non-metal          GA
     32      Newtown Energy, Inc.................                  June 2008                       Coal      WV
     33      Conshor Mining, LLC.................                  June 2008                       Coal      KY
     34      GCC Energy, LLC.....................                  June 2008                       Coal        CO
     35      Stillhouse Mining, LLC..............                  June 2008                       Coal      KY
     36      Patriot Mining, LLC.................                  June 2008                       Coal      VA
     37      Big River Mining, LLC...............                 March 2009                       Coal      WV
     38      Stollings Trucking Co., Inc.........                 March 2009                       Coal      WV
     39      Keokee Mining, LLC..................                 March 2009                       Coal      VA
     40      Snapco, Inc.........................                 March 2009                       Coal      VA
     41      Banner Blue Coal Co.................                 March 2009                       Coal      VA
     42      Double A Mining, Inc................                 March 2009                       Coal      KY
     43      North Star Mining, Inc..............                 March 2009                       Coal      KY
     44      Century Operations, LLC.............                 March 2009                       Coal      KY
     45      Hidden Splendor Resources, Inc......                 March 2009                       Coal      UT
     46      Celite Corp.........................                 March 2009     Diatomaceous Earth            CA
     47      Newmont USA Limited.................                 March 2009                   Gold          NV
     48      Black Beauty Coal Co................                   Oct 2009                       Coal      IN
     49      McCoy Elkhorn Coal Corp.............                   Oct 2009                       Coal      KY
     50      Pleasant View Mining Co., Inc.......                   Oct 2009                       Coal      KY
     51      Doe Run Co..........................                   Oct 2009              Lead zinc          MO
     52      Knox Creek Coal Corp................                   Oct 2009                       Coal      VA
     53      Mountain Reclamation & Construction.                   Oct 2009                       Coal      WV
     54      Spartan Mining Co., Inc.............                   Oct 2009                       Coal      WV
     55      Laurel Coal Corp....................                   Oct 2009                       Coal      WV
     56      Mammoth Coal Co.....................                  Oct. 2009                       Coal      WV
----------------------------------------------------------------------------------------------------------------
Note: Patriot Coal Corporation, Pine Ridge Coal Company LLC, Big Mountain No. 16 Mine, was also notifed in Oct
  2009 but MSHA noted in its press release that the operator did not actually meet one of the published criteria
  for identifying a potential pattern and should not have been listed in the memorandum. (The company contested
  four unwarrantable failure orders that were subsequently modified to 104(a) citations as part of a settlement
  agreement. MSHA's Office of Assessments did not record these modifications in the system and the company,
  during its review of the data MSHA provided, identified the error. These violations have now been updated in
  the system to reflect the modifications per MSHA.)

                                ------                                

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                ------                                

    [Additional submission of Mr. Kline follows:]

                                                     March 8, 2010.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Minority Member,
Committee on Education and Labor, U.S. House of Representatives, 
        Washington, DC.
Re: Statement of the Industrial Minerals Association-North America 
    (IMA-NA) on the February 23, 2010 Oversight Hearing Before the 
    Committee on Education and Labor Entitled ``Reducing the Growing 
    Backlog of Contested Mine Safety Cases''

    Dear Chairman Miller and Ranking Member Kline: On behalf of the 
Industrial Minerals Association-North America (``IMA-NA''), we 
respectfully request that this letter, expressing the views of the IMA-
NA, be included in the record of the February 23, 2010 hearing before 
the Committee on Education and Labor, entitled ``Reducing the Growing 
Backlog of Contested Mine Safety Cases''. IMA-NA is the principal trade 
association representing the industrial minerals industry in North 
America (see www.ima-na.org). Industrial minerals are not coal or 
metals, but are the mineral feedstocks used by manufacturing and 
agricultural industries. The safety and health of miners employed by 
IMA-NA's member companies is their first priority and concern. The 
mining methods used to extract industrial minerals are significantly 
different than for coal or metals. IMA-NA member companies strive not 
only to comply fully with the requirements of the Federal Mine Safety 
and Health Act of 1977, but also to continuously promote, benchmark, 
and develop programs to achieve best practices in mine safety and 
health.
    IMA-NA member companies paid close attention to the February 23 
hearing, and we appreciate the Committee's focus on the important 
problem of how to go about reducing the backlog of contested mine 
safety cases pending, and continuing to grow, at the Federal Mine 
Safety and Health Review Commission (``Commission''). IMA-NA wants to 
let you and the Committee know, therefore, that we generally endorse 
the remedies to reduce the Commission's backlog proposed by Assistant 
Secretary of Labor for Mine Safety and Health, Joseph A. Main, and 
Commission Chairman Mary Lu Jordan. In the context of this general 
endorsement, IMA-NA wishes to emphasize some of those recommendations 
and augment them as follows.
MSHA Recommendations
    With regard to the Mine Safety and Health Administration (MSHA), 
IMA-NA recommends that the Agency should--
     Restore an effective ``Close-Out Conference'' system by 
requiring that MSHA inspectors meet with the mine operator at the end 
of each inspection to make sure that they explain the enforcement 
actions they have taken during that inspection and to engage in a 
dialog about those enforcement actions with the mine operator;
     Restore the MSHA conference process as it existed prior to 
the February 4, 2008 issuance of Program Instruction Letter (``PIL'') 
No. I08-III-I and the March 27, 2009 issuance of Program Information 
Bulletin (``PIB'') No. P09-05; and then hire and train additional 
Conference Litigation Representatives (``CLRs'');
     While the CLRs should continue to be housed in their 
existing space in MSHA mine safety and health district offices in order 
for them to be conveniently available to operators, representatives of 
miners, and MSHA field enforcement personnel, supervision of CLRs 
should be changed so that they report directly, and independently of 
district manager control and influence, to the Office of the Assistant 
Secretary of Labor for Mine Safety and Health at MSHA's Headquarters in 
Arlington, Virginia;
     Increase from 30 to 60 days the time an operator has to 
contest a citation or order, thereby allowing operators more time to 
analyze the underlying enforcement action, collect information and 
conduct an informal conference with the MSHA District Manager before a 
formal contest is required;
     Increase from 30 to 60 days the time an operator has to 
contest a proposed assessment of civil penalty, thereby allowing 
operators more time to analyze the underlying enforcement action and 
the proposed penalty; and
     Reform the manner in which MSHA bundles dockets to ensure 
they include only the citations/orders and related proposed civil 
penalties from the same inspection.
Commission Recommendations
    In connection with the Commission, IMA-NA recommends the following:
     Set up an expedited procedure at the Commission that would 
encourage mediation and settlement of suitable contests under the 
supervision of Commission Administrative Law Judges (``ALJs''). This 
could be accomplished by temporarily hiring lawyers skilled in 
mediation, non-lawyer mediators, retired MSHA CLRs, or other similar 
personnel; and
     Bring the Commission's reforms to localities in the mining 
regions around the country to make it convenient and cost-effective for 
the parties to settle cases. This could be implemented by having 
Commission ALJs and other involved personnel ``ride the circuit'' and/
or through the leasing of office space in central localities in mining 
regions.
    IMA-NA believes that implementation of the reforms recommended by 
Assistant Secretary Main and Chairman Jordan, along with those 
specifically identified above, will go a long way toward reducing the 
current backlog of contested cases at the Commission and the pace at 
which new contests are filed. However, there is much more to this 
backlog that can be alleviated simply by instituting the procedural 
remedies discussed above.\1\ Indeed, in his written statement, 
Assistant Secretary Main identified some of these problems including:
---------------------------------------------------------------------------
    \1\ In this regard, IMA-NA endorses and supports the written 
statement of Bruce Watzman, Senior Vice President, Regulatory Affairs, 
National Mining Association.
---------------------------------------------------------------------------
     The unprecedented increase in the number of citations and 
orders issued by MSHA in recent years, and the even larger dollar value 
of associated proposed penalties;
     The significant turnover in MSHA's inspectorate coinciding 
with the significant changes in the law brought about by the 2006 
enactment of the MINER Act; and
     Inconsistency in application of MSHA enforcement decisions 
involving health and safety standards.
    In particular regard to the consistency of MSHA enforcement 
actions, IMA-NA wants you and the Committee to clearly hear that our 
member companies regard this problem as one that must be remedied as 
quickly as possible. Failure to do so detracts from every feature of 
the safety and health programs in place at our member companies' mines, 
wastes not only our resources, but MSHA's scarce resources as well, 
and, most importantly, does a true disservice to all of our efforts to 
protect the safety and health of miners.
    IMA-NA wishes to call your particular attention to the following 
portion of Assistant Secretary Main's written statement in which he 
said:
    ``Consistency requires training and review. To help with 
consistency, MSHA is developing training programs for its supervisors 
with the goal that inspectors will be held accountable for writing 
citations based on solid facts and evidence, and based on sustainable 
legal determinations. * * *
    Consistency also requires training of * * * CLRs * * * . It is 
vital that CLRs evaluate citations under the same training and criteria 
as the inspectors who write the citations.
    Finally, we must also provide appropriate training and guidelines 
to all MSHA field supervisors, including District Managers and 
Assistant District Managers, who have significant oversight 
responsibility for MSHA's enforcement program. Once trained for 
consistency, we must ensure that MSHA personnel are also managed for 
consistency.''
    Statement of Assistant Secretary Main at 16 & 17.
    We could not agree more. IMA-NA also wishes to remind the Committee 
that there is much more to protecting the safety and health of miners 
than the enforcement of MSHA's regulations. Indeed, we believe that the 
best solutions to protect the lives of miners emerge from joint 
industry-MSHA efforts, as opposed to over-reliance on ``command-and-
control'' regulatory schemes. Without detracting for one moment from 
the need for mine operators to comply with federal mine safety and 
health requirements, collaborative programs designed to ``get-things-
right'' from the outset bring enormous value to protecting the safety 
and health of miners.
    In this regard, IMA-NA has vigorously embraced public-private 
partnerships. For instance, we have formed an Alliance with MSHA that 
has been very successful in achieving substantive results, thereby 
improving the already outstanding safety programs of our member 
companies. We also have formed partnerships with NIOSH to address 
ergonomics and dust control within the mining industry. Ergonomics has 
been identified, proactively, by our members as the number one cause of 
injury, and dust control and silicosis prevention always have been 
major priorities for IMA-NA's membership.
    We also want you and the Committee to know that IMA-NA and its 
affiliate organization, the National Industrial Sand Association 
(``NISA'') have engaged in extensive efforts to prevent the occurrence 
of silicosis in our industry. In fact, NISA has developed a silicosis 
occupational health program that we believe is the most progressive 
silicosis prevention program in the world. This program goes far beyond 
regulatory requirements, represents thousands of hours of work from 
dedicated professionals, and, no doubt, is the primary cause for the 
virtual disappearance of silicosis from the work force of participating 
member companies. In fact, at the very hour of the February 23 hearing, 
NISA was announcing the release of the latest version of this world-
class health and safety program at our annual workshop in St. Louis.
    Finally, and in light of the above positive contributions industry 
has made to the reduction in miner deaths and injuries, we find that we 
cannot allow certain statements made by the Assistant Secretary to go 
unchallenged. In particular, we reject the following:
    ``If mine operators would take greater ownership of mine safety and 
health, it would be beneficial for all involved.
    ``The responsibility for identifying and remedying mine hazards 
needs to be shifted from MSHA inspectors back to mine operators.
    ``Over the years the mining industry's approach to safety and 
health has shifted. Mining operators have switched over time to a 
reactive approach, relying on MSHA inspectors to identify safety and 
health hazards, and treating citations as a cost of doing business 
instead of having comprehensive safety and health programs of their 
own.''
    Statement of Assistant Secretary Main at 9 & 18.
    We note that the Assistant Secretary did not emphasize these points 
in his verbal comments before Congress, but that he did make the 
decision to include them in his written testimony. These statements 
simply are inaccurate, and it is wholly inappropriate to label all, or 
even most, of the mining industry in such a negative fashion. The 
statements portray an industry that is unrecognizable to the members of 
IMA-NA. We simply refuse to accept these statements as fact, and we 
regret that the leadership of the government organization tasked with 
protecting miners, and working collaboratively with industry, have seen 
fit to make these statements before Congress and the American people. 
Such statements are not accurate, instill conflict, foster wholesale 
cynicism in the entire industry, and nullify the fine work of thousands 
of safety and health professionals who rise each day with no other goal 
than promoting the welfare of their fellow miners. We strongly urge the 
Assistant Secretary to refrain from statements such as these in the 
future, and we welcome the opportunity to introduce the Assistant 
Secretary to the safety and health professionals and corporate 
leadership of many proud American companies that simply cannot be 
classified as disengaged from miner safety.
    Again, IMA-NA stands ready to work with the Committee at any time 
on mine safety and health matters.
            Sincerely,
                                             Mark G. Ellis,
                                                         President.
                                 ______
                                 
    [Additional submissions of Mr. Thompson follow:]

  Prepared Statement of the National Stone, Sand & Gravel Association

    Mr. Chairman and Members of the Committee: On behalf of the 
National Stone, Sand and Gravel Association (NSSGA), we offer this 
testimony for the hearing on ``Reducing the Growing Backlog of 
Contested Mine Safety Cases.'' NSSGA and its member companies go to 
great lengths to comply with regulations tied to worker safety and 
health. NSSGA is concerned about the delay in producers' ability to 
obtain from the Federal Mine Safety and Health Review Commission 
(FMSHRC) a timely hearing on alleged violations.
    By way of background, the U.S. Geological Survey reports that NSSGA 
is the largest mining association by product volume in the world and 
represents the crushed stone, sand and gravel--or construction 
aggregates--industries that constitute by far the largest segment of 
the mining industry in the United States. Our member companies produce 
more than 90 percent of the crushed stone and 75 percent of the sand 
and gravel consumed annually in the United States. There are more than 
10,000 construction aggregates operations nationwide. Almost every 
congressional district is home to a crushed stone, sand or gravel 
operation. Proximity to market is critical due to high transportation 
costs, so 70 percent of our nation's counties include an aggregates 
operation. Of particular relevance to this hearing is the fact that 70 
percent of NSSGA members are considered small businesses.
    We offer a number of suggestions for alleviating the case backlog 
at the Commission.
    We applaud Assistant Secretary of Labor for Mine Safety & Health 
Joseph Main for his goal of improving training for inspectors on behalf 
of enforcement consistency. We understand that a number of contests 
from aggregates companies are due to strong disagreement on the basis 
of the severity finding on a citation. Inspectors need to do a proper 
job of evaluating and clearly identifying what is ``Significant and 
Substantial'' (S&S). NSSGA hears repeated expressions of concern that 
S&S is being over-written.
    Also, we would like to see the agency communicate more proactively 
with stakeholders about agency changes in enforcement interpretations. 
Citations should not serve as first notice to stakeholders that there 
has been a change in the agency's interpretation of what is needed for 
compliance. Rather, the agency should notify all stakeholders of such 
interpretation changes before enforcement begins so that companies and 
their workforces are afforded adequate information needed for 
compliance. For example, suppose the agency changes its opinion about 
an aspect of guarding design. The agency should so inform stakeholders 
before sending out the inspectors with their new ``rulebook,'' so the 
change, the purpose of the change, and the ability to tackle and 
correct for such change can be fully understood and implemented for 
compliance in a timely manner. We urge MSHA to find ways to go beyond 
what is required and warn or advise stakeholder communities on 
particular emphasis and interpretation changes. In fact, we would urge 
that MSHA inspectors be authorized to issue warnings on infractions 
that are more or less in relation to administrative or housekeeping 
issues, not risking imminent injury. That said, we realize this may not 
be possible without statutory change.
    Additionally, we recommend that MSHA reinstitute the process of 
conferencing citations before assessment of penalties. Before it was 
changed, pre-penalty conferencing enabled operators to close out on 
inspections satisfactorily without having to add to the Commission's 
docket.
    Further, we encourage the agency to consider changes in civil 
penalty procedures hastily put in place contemporaneously with 
enactment of the MINER Act. A major concern, for example, is the 
regulatory provision specifying how an operator's history should be 
brought into calculation of civil penalties. While we understand the 
importance of a review of every company's history in reviewing 
violations for assessment, the present procedure of assigning maximum 
penalty points for a fifteen- month average of 2.1 violations per 
inspection day is having a disparate and unfair impact on many 
companies. Take a small company, for example, that in its last two 
inspections, of one day each in the previous 15 months, has a total of 
five violations for a total of two days of inspections. This will cause 
25 points to be added to this small company's civil penalty 
calculation, which can translate into very big fines. Twenty-five 
points will convert a $555 penalty to $4,099 and it will convert a 
$4,099 penalty to $30,288. There are small companies that have been 
assessed penalties as high as $200,000 in a single inspection.
    It is understandable that companies will not want a single 
underserved violation in their history and that they will do everything 
in their power to contest questionable citations. We are committed to 
the notion that operators have every right and need to contest 
citations with which they do not agree. We hasten to add that history 
is by no means the sole issue. Every undeserved subjective finding by 
an inspector will add underserved points to the company's penalty 
calculations. These are unaudited findings and they represent big money 
liability. Only by seeking review before the Federal Mine Safety and 
Health Review Commission--the agency with exclusive authority to assess 
penalties--can an operator have a voice in the process. Indeed, even 
MSHA now is telling operators that if they want a conference regarding 
a citation, they will have to contest the citation formally before the 
Commission. We have mentioned only some of the concerns of operators 
that are prompting contests, but the system as a whole is deemed unfair 
and the only avenue that operators have to bring issues to light is 
through the contest process. NSSGA would be pleased to work with MSHA 
to address this and possible solutions.
    Finally, we offer the attached article, which was published in Mine 
Safety and Health News on Jan. 25, 2010. It was authored by an NSSGA 
Manufacturers and Services Division member and discusses the background 
of the backlog, relevant legal issues and includes suggestions for 
addressing the backlog. For your information, the author is scheduled 
to participate in an Energy and Mineral Law Foundation Special 
Institute (March 23 and 24) in Washington, D.C., with attorneys from 
the Solicitor of Labor's office and Judges from the Federal Mine Safety 
and Health Review Commission. The goal of the panel is to 
constructively address civil penalty case backlog issues and how they 
might be resolved for everyone's benefit.
    Thank you for the opportunity to submit a statement for the record 
of this hearing. Further, we ask that the attached article be included 
in the record.
                                 ______
                                 

                     What About That Case Backlog?*

                          By Michael T. Heenan

    MSHA civil penalties have risen rapidly since enactment of the 
MINER Act in 2006. Total penalties in 2005 were around $25,000,000 and 
by 2008, they were almost $200,000,000. Each mine's ``history of 
violations'' can contribute enormously to accumulation of high 
penalties and also can bring about other grave enforcement in the form 
of mine closure orders. MSHA has undertaken enforcement as never before 
of ``pattern of violations'' provisions, also founded on mine history. 
If mine operators are to be fairly regulated and not unfairly 
penalized, the record on which enforcement is based better be right.
---------------------------------------------------------------------------
    *This paper previously appeared in essentially the same form as a 
``Perspectives'' column in Mine Safety and Health News, Vol. 17, No. 2, 
January 25, 2010
---------------------------------------------------------------------------
    The way the system works, it is up to the individual operators of 
mines to employ available procedures to make sure they are not 
improperly faulted or penalized. Enforcement actions that will not 
withstand legal scrutiny should be vacated. This will not happen unless 
the miner operator takes advantage of guaranteed rights of review by 
the Federal Mine Safety and Health Review Commission, the independent 
adjudicatory agency which has exclusive authority to assess penalties 
under the Federal Mine Safety and Health Act.
    Mine operators conduct their businesses under intense scrutiny with 
respect to even the most insignificant of safety considerations. They 
have developed a strong culture of safety. They take pride in their 
safety programs and want their MSHA record to reflect the success of 
their efforts. They do not want to be unfairly charged. Historically, 
many operators have taken issue with enforcement actions when the 
associated penalty was of virtually no consequence, but rightness and 
fairness were at issue. Today, operators have many more reasons to want 
to make sure that enforcement is fair in all respects.
    Today, it is not just whether there was a violation that operators 
need to be concerned about; virtually every one of the multiple 
findings in every citation has significance far beyond anything 
previously. For one thing, each written finding by an inspector 
directly affects calculation of proposed civil penalties against the 
company. It is not surprising, therefore, that with the rapid 
escalation in enforcement, there has been a substantial rise in 
requests for hearings, and there is a backlog of cases.
    A former head of the Assessment Office once commented to me: ``If 
operators are not contesting, penalties are not high enough.'' If there 
is merit to this, then penalties are apparently now ``high enough.'' 
But I think there is much more to the case backlog. And I think there 
may be more that can be done to reduce the backlog, even without 
expansion of government resources. Before discussing backlog solutions, 
I feel it is important to consider in greater depth the multitude of 
considerations pertinent to contest proceedings
Importance of Review of Inspector Discretion
    In the Mine Safety Act, Congress has developed an effective 
enforcement system and an effective review system. The combined 
approach, when properly implemented, allows operators to feel they are 
being treated as they deserve. It allows them to respect the system. An 
operator is much more motivated to comply with a respected system than 
one that is viewed as arbitrary and unfair. This is true even if 
achieving fairness proves to be an expensive proposition for the 
operator. And it is expensive. The time, effort and costs of seeking 
review of enforcement actions typically involve a greater burden 
overall on companies than MSHA penalties, but the review process has 
the desired effect all around. The government may presently feel 
burdened by the level of contests, but the government should appreciate 
that the system is working just as it should and everyone benefits.
    Under the Mine Safety Act, MSHA inspectors have a surprising level 
of discretion, which they can exercise for better or worse. Since MSHA 
enforcement is in every case rooted in actions of inspectors in the 
field, it is worth remembering that no group of people is equally 
capable, and as individuals, we are all far from perfect. Some 
inspectors have excellent judgment; others do not. Some inspectors are 
by nature perceptive and fair. Others are more interested in their own 
self-importance and sense of power when they sense their intimidating 
effect on mine personnel. Some inspectors have years of experience and 
have learned well how to apply MSHA's regulations and others have not. 
Regardless, even well intentioned inspectors make mistakes. Operators 
care about avoiding the consequences of such mistakes.
Demise of the Informal Conference Procedure
    MSHA regulations provide an ``opportunity to review with MSHA each 
citation and order issued during and inspection.'' However, the 
regulations also state: ``It is within the sole discretion of MSHA to 
grant a request for a conference and to determine the nature of the 
conference.'' For most of MSHA's existence, an operator needed only to 
alert the MSHA district office of a desire for such an informal 
conference and it was granted to review any or all citations and 
orders. It was not a hearing, but rather a request that the agency 
review its own actions. It was a thoroughly welcome and successful 
procedure. For many companies, this was all the review they felt they 
needed.
    Fairness and appropriateness of inspector enforcement actions are 
important issues, and effective review is dependent on complete 
information. Inspector citations and orders are theoretically subject 
to ongoing supervisory review, but as in all organizations, supervisors 
are naturally inclined to encourage and support inspector discretion 
unless it is exercised in a clearly inappropriate manner. More 
importantly, without operator input, supervisors have only the 
inspector's report on which to base their review and there is little 
likelihood that very many actions will be called into question 
internally. Moreover, with the current emphasis on enforcement, 
supervisors have reason to be concerned about criticism against 
themselves if they second guess harsh enforcement by an inspector. 
Consequently, there is very little self correction by the agency.
    Today, conference requests are regularly met with responses that 
say, for example: ``A conference will be scheduled after * * * 
penalties * * * have been assessed. * * * Failure to timely contest the 
proposed penalties will result in your conference request being 
cancelled.'' In other words, current MSHA policy today is to discuss 
inspector enforcement actions only in the context of formal civil 
penalty contests initiated before the Federal Mine Safety and Health 
Review Commission.
Right to Commission Determination of Propriety of Enforcement
    Although civil penalty contests were already on the rise, 
elimination of informal conference opportunities by MSHA has made 
formal contests the only reliable avenue for dialogue. The loss of an 
opportunity to speak with MSHA promptly and informally on a pre-penalty 
basis immediately after an inspection, without regard to any specific 
penalty and without the filing of formal penalty contests, is 
unfortunate. MSHA would say that the informal conference procedure was 
a casualty of the backlog due to increased contests generally. I do not 
think much thought has been given to the impetus for contests created 
precisely as a result of the unavailability of conferences. Operators 
have more reasons to talk to MSHA than just civil penalties.
    In talking about rights of review, it is important that I stress 
that MSHA has the power to propose penalties, but the power to actually 
assess penalties lies exclusively with the Federal Mine Safety and 
Health Review Commission. Congress created the Commission to decide 
enforcement cases arising under the Federal Mine Safety and Health Act 
of 1977. The Commission is authorized to review citations and orders 
separate and apart or together with proposed civil penalties. The MINER 
Act amendments of 2006 did not change the longstanding procedures of 
the 1977 Act. Commission review is available as a matter of right. With 
respect to penalty determinations, all proposed penalties are set out 
by MSHA on a form that provides space for the operator to indicate 
whether a hearing is desired on all or specific penalties.
    Mine operators may forfeit their right to have the Commission 
determine their penalties. Consistent with law, MSHA regulations state: 
``If the proposed penalty is not paid or contested within 30 days of 
receipt, the proposed penalty becomes a final order of the Commission 
and not subject to review by any court or agency.'' In other words, if 
an operator does nothing to preserve rights to Commission 
determination, or if the operator does not check the right box for 
which citations it wants to have reviewed, penalties proposed for the 
citations by MSHA will become final and unreviewable orders of the 
Commission by reason of a legal fiction.
Summary Penalty Proposals by MSHA
    In connection with Congress's authorization of the Secretary of 
Labor (acting through MSHA) to propose penalties, Congress basically 
removed from the Secretary burdens of detailed review of relevant 
facts. The law states:
    In proposing civil penalties under this Act, the Secretary may rely 
upon a summary review and shall not be required to make findings of 
fact concerning the above factors.
    In practice, the Secretary's (MSHA's) review of facts is limited. 
Penalty proposals are primarily calculated on the basis of points 
assigned to subjective and often speculative conclusions of the 
individual inspector issuing the citation. As a practical matter, 
individual inspectors are actually determining the amount of most 
proposed penalties. Each inspector finding on every citation and order, 
along with information from MSHA's files regarding size of the company 
and history of violations, constitute the sum total of what goes into a 
proposed monetary penalty calculation. With limited exceptions for 
``special assessments.'' the information provided by the inspector and 
taken from the files is summarily assessed by MSHA's civil penalty 
computer program. The penalty calculation variables for each citation 
are more numerous than the six criteria listed for Commission 
determinations under the Act. The variables include all of the 
following:
     Type of Mine or Contractor
     Production or Hours Worked
     Size of Controlling Entity
     History of Previous Violations
     Time Period during which History Calculated
     Repeat Violations per Inspection Day
     Less than six
     How many more than six
     Negligence
     None
     Low
     Moderate
     High
     Reckless Disregard
     Likelihood of Injury of Illness
     None
     Unlikely
     Reasonably Likely
     Highly Likely
     Occurred
     Gravity of Possible Injury
     No lost work days
     Lost work days or restricted duty
     Permanently Disabling
     Fatal
     Number of Persons Potentially Affected
     One
     Two
     Three
     Four
     Five
     Six
     Seven
     Eight
     Nine
     Ten or More
     Good Faith of Operator in correcting alleged violation
     Whether the Operator failed to timely abate the violation
     Whether the alleged violation was ``Significant and 
Substantial''
     Whether the alleged violation was due to ``Unwarrantable 
Failure''
     Whether the alleged violation was associated with an 
imminent danger
    Because of the subjectivity inherent in so many of the findings 
that are translated into points for penalty calculations, penalty 
amounts can vary widely--all depending on what particular subjective 
conclusions inspectors include as findings in their citations. Small 
companies can end up with a hundred thousand dollar total penalty from 
a relatively few violations over the course of a couple of inspections. 
A large company could end up with a five thousand dollar penalty for 
many more violations issued over many days. It mostly depends on the 
subjective findings of inspectors as to what is a violation and what 
findings are to be associated with a violation. In many respects, if it 
were not for Commission review, the inspector would be the judge and 
jury. Depending on temperament, the inspector could exercise power well 
outside his or her job description.
    A factor which is not part of the Secretary of Labor's calculation 
is one of the six criteria which Congress requires the Commission to 
consider in assessing any penalty. That is ``ability to continue in 
business.'' Clearly, it was not Congress's intention to drive companies 
out of business with excessive civil penalties. For small companies, 
the size of their final penalties can be the difference between 
surviving and not surviving, particularly in this difficult economy. 
Large companies, on the other hand, usually can survive because all of 
their business is not typically tied up in a single mine, but penalties 
in the hundreds of thousands of dollars per mine per year does take a 
toll on any mine.
Practical Aspects of Case Processing--How the System Really Works
    The fact is that a hearing is not needed in most cases. What is 
needed is a fair exchange of information--a dialog. Formal case 
procedures provide an opportunity for just that. Before a case proceeds 
very far, each side has to evaluate the strength of their respective 
cases. Judges direct the parties to talk to one another. Then each 
party can explain to the other what its position is on the issues in 
the case and what evidence will be introduced in support. Both sides 
will discover weaknesses in their separate cases. There will be dialog 
and a compromise may be reached. The compromise will be presented to 
the Commission administrative law judge in a motion to approve 
settlement. Generally, the motion is written and submitted by the 
government. In most cases, because good reasons are given for the 
settlement, the judge will approve it. Case closed. Further expenditure 
of resources is unnecessary. The interests of judicial economy are 
served. This really is no different from case handling in tribunals 
everywhere.
How the System Might be Improved
    MSHA has tried to improve the review system by inserting a 
conference opportunity at the front end of the formal review procedure. 
Because of the volume of cases, MSHA is relying to a great extent on 
its own employees serving as Conference and Litigation Representatives 
(CLRs) rather than attorneys from the Labor Department Solicitor's 
office. Certainly, companies have endeavored to enter into negotiations 
with CLRs or attorneys to see if issues can be resolved before the 
cases become subject to formal Commission procedures. To this end, CLRs 
typically request a ninety day extension from the Commission to see if 
the case can be settled before a formal Petition for Assessment of 
Civil Penalty is filed and the case is subject to all Commission 
formalities.
    A general trend in negotiations with MSHA is that CLRs, like 
inspectors, do not take into account what can and cannot be proved. 
Typically, they are refusing to address the issues that will be front 
and center in a trial. Instead, they assume a position of intransigence 
and rely on a percentage of operators becoming discouraged and giving 
up. Consequently, nothing gets resolved--unless the operator backs down 
and goes away. Most operators know that this is not a fair review and 
they are going to have to stay the course to protect their rights.
    Of course, the problem is not always necessarily solved when 
attorneys have the case. It can become a game of negotiations rather 
than a determination of what is right--what should be recommended to 
the judge as a resolution. As a result, neither side can get serious 
until right before trial. That is when what can be proved becomes more 
important than insisting that the inspector was right in all respects. 
This is not what operators expect when they seek review. They believe 
that if given a fair review, the validity of their position will be 
recognized and citations will be adjusted accordingly.
    Obviously, I am generalizing to make a point. In many instances, 
the negotiation process is the key to effective and efficient 
resolution. So what can enhance the effectiveness of negotiations? Here 
is my list of items for consideration.
     Reinstate the Pre-penalty Conference Process--This can 
restore MSHA's ability to promptly address issues arising in the field, 
and should help operators feel like they can get true consideration of 
their issues and concerns by the agency. When matters are resolved 
early, parties are less likely to get into a litigation stand-off.
     Reduce Discovery--Too much time and effort goes into 
discovery that serves little purpose other than to force up the cost of 
efforts to get review. If operators are willing to forego discovery, 
the government should also. (The Labor Department has made provision 
for ``Simplified Proceedings'' to expedite OSHA cases in this way.)
     Allow Elective Mini-trials--Parties could go to hearing 
with just one witness on each side and with exhibits submitted in 
advance, for example.
     Allow Simplified Written Submittals--In many cases, there 
is little disagreement as to facts, and issues can be narrowed by 
agreement of the parties. What they cannot agree on is the appropriate 
result. Judges could decide cases based on simplified submittals and 
perhaps query the parties in a telephone conference regarding any 
apparent factual differences.
     Provide for Mediation--Former solicitors, former judges 
and other attorneys may be willing to serve on a panel to mediate 
cases. The parties could share the costs. (With the substantial 
increase in penalties going into the federal Treasury, there ought to 
be a way for the government to fund its part of the bill.)
     Consider Global Settlement Conferences in which companies 
could bring all their issues to the government for fair consideration, 
without having to go through a long drawn-out piecemeal conflict 
approach.
Conclusion
    I do not presume to have the answers, but I do offer my suggestions 
as a possible starting point. There are things wrong with the current 
system that need to be fixed, or at least improved. In the meantime, 
the only way operators have a chance of getting things changed is to 
broadly contest current enforcement and the associated penalties.
    Managing Shareholder of the Washington DC office of Ogletree 
Deakins, Michael Heenan has had a long career representing companies in 
mine safety and health cases. He has authored multiple articles, 
treatise chapters and books on mine safety. His books include Safety 
and Health at Mines and MSHA--The Mine Operator and the Law. He is also 
Legal Editor of Pit & Quarry magazine.

     January 15, 2010--Michael T. Heenan, Ogletree, Deakins, 
Nash, Smoak & Stewart PC
                                 ______
                                 
    [Whereupon, at 11:34 a.m., the committee was adjourned.]

                                 
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