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


 
             H.R. 5663, MINER SAFETY AND HEALTH ACT OF 2010

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

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JULY 13, 2010

                               __________

                           Serial No. 111-72

                               __________

      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           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Joe Wilson, South Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Susan A. Davis, California           Tom Price, Georgia
Raul M. Grijalva, Arizona            Rob Bishop, Utah
Timothy H. Bishop, New York          Brett Guthrie, Kentucky
Joe Sestak, Pennsylvania             Bill Cassidy, Louisiana
David Loebsack, Iowa                 Tom McClintock, California
Mazie Hirono, Hawaii                 Duncan Hunter, California
Jason Altmire, Pennsylvania          David P. Roe, Tennessee
Phil Hare, Illinois                  Glenn Thompson, Pennsylvania
Yvette D. Clarke, New York           [Vacant]
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 July 13, 2010....................................     1

Statement of Members:
    Kline, Hon. John, Senior Republican Member, Committee on 
      Education and Labor........................................     5
        Prepared statement of....................................     7
        Additional submissions:
            Letter, dated July 12, 2010, from the American 
              Society of Safety Engineers........................   137
            Letter, dated July 13, 2010, from Associated Builders 
              and Contractors....................................   144
            Letter, dated July 13, 2010, from the Independent 
              Electrical Contractors.............................   144
            Prepared statement of the National Stone, Sand and 
              Gravel Association.................................   145
    McMorris Rodgers, Hon. Cathy, Ranking Minority Member, 
      Subcommittee on Workforce Protections......................     9
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
        Additional submissions:
            Staff report, ``Scotia Coal Mine Disaster,'' October, 
              15, 1976, House Education and Labor Committee, 
              Subcommittee on Labor Standards....................    29
            Letter, dated July 9, 2010, from the American 
              Industrial Hygiene Association.....................   114
            Letter and press release from the Appalachian 
              Citizens' Law Center, Inc..........................   117
            Letter, dated July 13, 2010, from the Building and 
              Construction Trades Department, AFL-CIO............   126
            Letter, dated July 11, 2010, from the International 
              Brotherhood of Boilermakers........................   128
            Letter, dated July 12, 2010, from Interstate Mining 
              Compact Commission.................................   130
            Prepared statement of ORC Worldwide..................   133
            Unpublished disposition, dated March 3, 1997, Peabody 
              Coal Co. v. the Federal Mine Safety and Health 
              Review Commission..................................   136
    Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce 
      Protections................................................     8

Statement of Witnesses:
    Grayson, R. Larry, George H., Jr. & Anne B. Deike chair in 
      mining engineering; professor, energy and mineral 
      engineering, Pennsylvania State University.................    61
        Prepared statement of....................................    63
        Chart: ``Safe Performance Index''........................   100
    Main, Hon. Joseph A., Assistant Secretary of Labor, Mine 
      Safety and Health Administration, U.S. Department of Labor.    10
        Prepared statement of....................................    12
    Michaels, Hon. David, Ph.D., MPH, Assistant Secretary, 
      Occupational Safety and Health Administration, U.S. 
      Department of Labor........................................    21
        Prepared statement of....................................    23
    Rhinehart, Lynn, general counsel, AFL-CIO....................    90
        Prepared statement of....................................    92
    Roberts, Cecil E., president, United Mine Workers of America.    75
        Prepared statement of....................................    77
    Smith, M. Patricia, Solicitor of Labor, U.S. Department of 
      Labor......................................................    17
        Prepared statement of....................................    19
    Snare, Jonathan L., on behalf of the Coalition of Workplace 
      Safety.....................................................    82
        Prepared statement of....................................    84
    Stewart, Stanley, coal miner, Upper Big Branch Mine..........    58
        Prepared statement of....................................    60
    Watzman, Bruce, senior vice president, National Mining 
      Association................................................    67
        Prepared statement of....................................    69


                      H.R. 5663, MINER SAFETY AND
                           HEALTH ACT OF 2010

                              ----------                              


                         Tuesday, July 13, 2010

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 3:00 p.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Woolsey, 
Tierney, Kucinich, Holt, Loebsack, Altmire, Courtney, Shea-
Porter, Chu, Kline, McMorris Rodgers, Price and Guthrie.
    Also Present: Representatives Rahall and Capito.
    Staff Present: Aaron Albright, Press Secretary; Andra 
Belknap, Press Assistant; Jody Calemine, General Counsel; Lynn 
Dondis, Labor Counsel, Subcommittee on Workforce Protections; 
Patrick Findlay, Investigative Counsel; Jose Garza, Deputy 
General Counsel; Gordon Lafer, Senior Labor Policy Advisor; 
Livia Lam, Senior Labor Policy Advisor; Sadie Marshall, Chief 
Clerk; Richard Miller, Senior Labor Policy Advisor; Revae 
Moran, Detailee, Labor; Alex Nock, Deputy Staff Director; Megan 
O'Reilly, Labor Counsel; Robert Presutti, Staff Assistant, 
Labor, James Schroll, Junior Legislative Associate, Labor; 
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff 
Director; Kirk Boyle, Minority General Counsel; Casey Buboltz, 
Minority Coalitions and Member Services Coordinator; Ed Gilroy, 
Minority Director of Workforce Policy; Angela Jones, Minority 
Executive Assistant; Barrett Karr, Minority Staff Director; 
Ryan Kearney, Minority Legislative Assistant, Molly McLaughlin 
Salmi, Minority Deputy Director of Workforce Policy; Ken 
Serafin, Minority Workforce Policy Counsel; Linda Stevens, 
Minority Chief Clerk/Assistant to the General Counsel; and 
Loren Sweatt, Minority Professional Staff Member.
    Chairman Miller. A quorum being present, the committee will 
come to order for the purposes of receiving testimony on 
legislation that has been introduced dealing with serious flaws 
in our Nation's mine safety laws. That would be H.R. 5663.
    These flaws became devastatingly obvious on April 5th, when 
a massive explosion ripped through the Upper Big Branch Mine in 
West Virginia, killing 29 miners. It is simply unacceptable for 
mine workers to die or be injured in preventable accidents. And 
it is unacceptable for some mine companies to game the mine 
laws to avoid protecting their employees. And it is 
unacceptable that mine workers across the Nation live in fear 
of their jobs if they raise safety issues at work. And it is 
unacceptable that mine workers are not given the most updated 
safety technology and training to protect their health and 
safety.
    While it will take much to determine the precise cause of 
the Upper Big Branch explosion, we already understand the 
disastrous results when mine owners operate on the margins of 
safety in order to put more coal on the belt. Further study and 
investigation isn't needed to understand the results when 
workers' voices are silenced by fear of retaliation for 
speaking out on safety problems. And we know the consequences 
of safety when a miner operator repeatedly disregards safety to 
do everything to avoid tougher oversight. The consequences are 
that miners die.
    These messages were clear when we traveled to Beckley, West 
Virginia, to hear from miners and family members who lost loved 
ones on April 5th. The testimony was chilling. What we heard 
was how an outlaw mine company valued production over the lives 
of human beings. We heard how miners would get sick because 
there wasn't enough oxygen. We heard how widespread fear and 
intimidation had paralyzed miners from demanding management fix 
serious problems. And we learned how a Federal agency lacked 
the resources and the legal authority to fix those chronic 
problems.
    In 2009 Massey's Upper Big Branch Mine was cited 515 times 
for serious violations, including 54 orders to evacuate the 
mine due to urgent safety concerns. While the mine corrected 
unsafe conditions when it was confronted by MSHA inspectors, it 
repeatedly slipped back to a pattern of noncompliance. In the 
weeks before the explosion, MSHA closed the mine seven times; 
six times for failures related to improper mine ventilation.
    Despite this pattern of serious violation there was little 
MSHA could do to get Massey to turn this operation around. The 
millions of dollars in proposed fines over the years didn't 
work. Dozens of temporary closure orders didn't work. And it 
seems complaints that miners not even getting enough air below 
didn't work.
    The Upper Big Branch Mine is a perfect example of how 
current law is inadequate, especially for those operations that 
do everything to flaunt the law.
    H.R. 5663, the Miner Safety and Health Act, will fix these 
problems that have allowed some mine owners to operate on the 
margins of safety without being held accountable. Among other 
provisions, the legislation will revamp the broken pattern of 
violation sanctions so that our Nation's most dangerous mine 
operators improve safety quickly.
    Furthermore, responding to serious concerns raised in 
Beckley, the Miner Safety and Health Act will empower workers 
to speak up about safety concerns, strengthening the 
whistleblower protections.
    The bill will eliminate incentives for owners to appeal 
violations regardless of the merits and ensure that overdue 
penalties are paid promptly.
    The bill will give MSHA additional powers to shut down the 
mine when there is a continuing threat to the health and safety 
of miners.
    Also, recognizing that some mine operations bide their time 
to retaliate against whistleblowers, the bill will ensure that 
the underground coal miners are dismissed only if the employer 
has just cause.
    Finally, the bill will guarantee that basic protections are 
available in all workplaces. Workers should have basic work 
place protection no matter if they work in a mine, extracting 
coal, or in an oil refinery handling explosive chemicals.
    In two dozen hearings over the last 3 and a half years, 
this committee has not only examined gaps in mine safety but 
also the significant shortcomings of the Occupational Safety 
and Health Act.
    I want to thank Congresswoman Woolsey for leading the 
effort to reform the Occupational Safety and Health Act.
    Your legislative work on the Workforce Protection 
Subcommittee has made a clear case for strong action. That is 
why under the legislation, all workers will have strong 
whistleblower protections, not just miners. For the second time 
in four decades, for the second time in four decades, criminal 
and civil penalties will be increased, and those penalties will 
be indexed for inflation.
    Lastly, employers will have to fix safety problems more 
quickly, even pending appeal. Unlike mine safety laws, other 
workplaces are allowed to put off fixing many hazards found 
while the violation is appealed.
    And I would like to thank all the Members of the House, 
Senate and the administration who have worked for weeks putting 
the legislation together.
    And particularly, I want to recognize the leadership of the 
United States Senator Robert C. Byrd, who was one of the coal 
miners' best allies in Washington. Senator Byrd was personally 
involved in making these decisions on this bill up to the last 
weeks of his life. Recognizing the importance of Senator Byrd's 
legacy to our Nation's miners and workers, my manager's 
amendment will change the name of the legislation to the Robert 
C. Byrd Miner Safety and Health Act of 2010.
    After the 2006 Sago and Aracoma tragedies, Senator Byrd 
said, and I quote, ``If we are truly a moral Nation, then those 
moral values must be reflected in government agencies that are 
charged with protecting the lives of our citizens.''
    And I agree.
    Finally, this bill responds to the promise I made to 
families paying the ultimate price for a job our Nation depends 
on. The promise was to do everything in my power to prevent 
similar tragedies. I believe that this bill is our best chance 
to fulfill the promise made to the families of Aracoma, Sago, 
Darby, Crandall Canyon and now Upper Big Branch.
    I thank all the witnesses for joining us today and I look 
forward to your testimony and your expertise.
    And I now recognize Congressman Kline, the senior 
Republican on the committee.
    [The statement of Mr. Miller follows:]

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

    We meet today to consider urgent legislation to address serious 
flaws in our nation's mine safety laws.
    These flaws became devastatingly obvious on April 5th when a 
massive explosion ripped through Upper Big Branch Mine in West 
Virginia, killing 29 miners.
    It is simply unacceptable for mine workers to die or be injured in 
preventable accidents.
    It is unacceptable for mine companies to game the mine laws to 
avoid protecting their employees.
    It is unacceptable that mine workers across the nation live in fear 
of their jobs if they raise safety issues at work.
    And it is unacceptable that that mine workers are not given the 
most updated safety technology and training to protect their health and 
safety.
    While it will take months to determine the precise cause of the 
Upper Big Branch explosion, we already understand the disastrous 
results when a mine owner operates on the margins of safety in order to 
put more coal on the belt.
    Further study and investigation isn't needed to understand the 
result when workers' voices are silenced by fear of retaliation for 
speaking out on safety problems.
    And, we know the consequences for safety when an operator 
repeatedly disregarded safety and do everything to avoid tougher 
oversight.
    Miners die.
    This message was clear when we travelled to Beckley, West Virginia 
to hear from miners and family of miners who lost loved ones on April 
5th. The testimony was chilling. What we heard was how an outlaw mine 
company that valued production over the lives of human beings.
    We heard how miners would get sick because there wasn't enough 
oxygen.
    We heard how widespread fear and intimidation has paralyzed miners 
from demanding management fix serious problems. And, we learned how a 
federal agency lacked the resources and legal authority to fix these 
chronic problems.
    In 2009, Massey's Upper Big Branch mine was cited 515 times for 
serious violations, including 54 orders to evacuate the mine due to 
urgent safety concerns. While the mine corrected unsafe conditions when 
confronted by MSHA inspectors, it repeatedly slipped back into a 
pattern of non-compliance.
    In the weeks before the explosion, MSHA closed the mine seven 
times, six times for failures related to improper mine ventilation. 
Despite this pattern of serious violations, there was little MSHA could 
do to get Massey to turn this operation around. The millions of dollars 
in proposed fines over the years didn't work. Dozens of temporary 
closure orders didn't work. And, it seems, complaints that miners were 
not getting enough air below didn't work either. The Upper Big Branch 
mine is the perfect example of how current law is inadequate, 
especially for those operations that do everything to flout the law.
    H.R. 5663, the Miner Safety and Health Act, will fix these problems 
that have allowed some mine owners to operate on the margins of safety 
without being held accountable.
    Among other provisions, the legislation will revamp the broken 
`pattern of violations' sanctions so that our nation's most dangerous 
mine operations are able to improve safety quickly.
    Furthermore, responding to serious concerns raised in Beckley, the 
Miner Safety and Health Act will empower workers to speak up about 
safety concerns strengthening whistleblower protections.
    The bill will eliminate incentives for owners to appeal violations 
regardless of merit and ensure overdue penalties are paid promptly.
    The bill will give MSHA additional powers to shut down a mine when 
there is a continuing threat to the health and safety of miners.
    Also, recognizing that some mine operators may bide their time to 
retaliate against whistleblowers, the bill will ensure that underground 
coal miners are dismissed if the employer has just cause.
    Finally, the bill will guarantee that basic protections are 
available in all workplaces.
    Workers should have basic workplace protections no matter if they 
work in a mine extracting coal or at an oil refinery handling explosive 
chemicals.
    In two dozen hearings over three-and-a-half years, this committee 
has not only examined gaps in mine safety, but also the significant 
shortcomings with the Occupational Safety and Health Act.
    I want to thank Congresswoman Woolsey for leading the effort to 
reform the OSH Act. Your legislative work in the Workforce Protections 
Subcommittee has made a clear case for strong action. That is why, 
under the legislation, all workers will have to strong whistleblower 
protections. Not just miners.
    For the second time in four decades, criminal and civil penalties 
will be increased and those penalties will be indexed to inflation.
    Lastly, employers will have to fix safety problems more quickly, 
even pending appeal. Unlike mine safety laws, other workplaces are 
allowed to put off fixing many hazards found while the violation is 
appealed.
    I would like to thank all those members of the House, Senate and 
the administration who have worked for weeks putting this legislation 
together.
    In particular, I want to recognize the leadership of a United 
States Senator Robert Byrd who has been one of the coal miner's best 
allies in Washington. Senator Byrd was personally involved making 
decisions on this bill up to the last week of his life.
    Recognizing the importance of Senator Byrd's legacy to our nation's 
miners and workers, I intend to change the name of the legislation to 
the Robert C. Byrd Miner Safety and Health Act of 2010.
    After the 2006 Sago and Aracoma tragedies, Senator Byrd said that 
``if we are truly a moral nation * * * [then those] moral values must 
be reflected in government agencies that are charged with protecting 
the lives of our citizens.''
    I agree.
    Finally, this bill responds to the promise I made to families 
paying the ultimate price for a job our nation depends on. That promise 
was to do everything in my power to prevent similar tragedies.
    I believe that this bill is our best chance to fulfill the promise 
made to the families of Aracoma, Sago, Darby, Crandall Canyon and Upper 
Big Branch.
    I thank all the witnesses for joining us today and I look forward 
to your testimony.
                                 ______
                                 
    Mr. Kline. Thank you, Mr. Chairman.
    And good afternoon to all our distinguished witnesses from 
inside and outside the Federal Government. This is a far-
reaching piece of legislation, and we value the multiple 
perspectives that you all bring.
    The April 5th Massey Mine explosion that took the lives of 
29 West Virginians was a mining tragedy, the likes of which our 
Nation had not seen in four decades. We all share a goal of 
preventing such a tragedy from ever happening again.
    Over the years, Congress has taken repeated steps to 
improve mine safety. Yet, as this loss reminds us, more work 
must be done to modernize our laws, toughen penalties on bad 
actors, and ensure Federal agencies are fulfilling their 
oversight and enforcement responsibilities.
    I mention my appreciation for the viewpoints represented 
here today, but I would be remiss if I did not acknowledge the 
notable absence of the Labor Department's Inspector General. As 
the agency's independent watchdog, the IG is in a unique 
position to offer unbiased analysis of MSHA's strengths and 
weaknesses in enforcing our mine safety laws.
    I am disappointed Chairman Miller declined my request to 
call the IG to testify and share his perspective on issues 
clearly relevant to any serious discussion about mine safety.
    In recent months, the IG's office has identified weaknesses 
in mine inspector training and retraining, leaving MSHA 
personnel without the up-to-date knowledge of health and safety 
standards or mining technology needed to perform their 
inspection duties. The IG's office also identified a disturbing 
failure by MSHA to enforce its ``pattern of violation'' 
authority under current law, which subjects mines with repeated 
safety violations to stricter scrutiny and tougher enforcement. 
As outlined in a June 23, 2010, alert memorandum, the IG's 
office described an internal MSHA policy that resulted in at 
least ten mines being removed from potential POV status for 
reasons ``other than appropriate consideration of the health 
and safety conditions at those mines.''
    I have corresponded with Assistant Secretary Main about 
this unacceptable breakdown in enforcement, and I look forward 
to continuing that dialogue today as we seek answers about the 
agency's enforcement practices and capabilities.
    This is a vital discussion that cannot wait, particularly 
because this committee appears to be moving quickly toward a 
vote. In fact, today we are examining legislation introduced by 
the majority as Members left Washington for the Independence 
Day work period.
    I do appreciate Chairman Miller's apparent urgency. I would 
simply urge us to act as quickly as is prudent to make the 
necessary changes to the law and its enforcement to protect 
miners.
    Unfortunately, we do not yet have all the information we 
need to identify how best to keep miners safe and crack down on 
bad actors. Three investigations in the Upper Big Branch 
explosion by MSHA, an independent Federal review commission, 
and the State of West Virginia are currently under way.
    At Congress's request, the Inspector General is conducting 
a review of MSHA policies that led to lax enforcement. The 
results, which will include recommendations for reform, are not 
expected until September.
    This committee requested and was granted extraordinary 
authority from the House of Representatives to investigate 
underground mine safety in May. An investigation is still 
ongoing.
    Instead of rushing to legislate without all the facts, I 
hope we listen to the experts who are here today and use their 
expertise, along with the eventual findings of the 
investigations I just mentioned, to enact a bill with a clear 
focus on making mines safer, period.
    One important way to do that would be to set aside H.R. 
5663's misplaced inclusion of OSHA reforms in a bill that ought 
to be squarely focused on the safety of miners underground. The 
proposed changes to the OSHA act would dramatically reshape 
workplace safety policies for virtually every private-sector 
employer in America. These provisions will drive up costs and 
litigation for employers, all of which--all of which--would 
make it more difficult to create jobs at a time when our 
economy needs them the most.
    And for all these changes proposed under the banner of 
workplace safety, the legislation does nothing to help 
employers make their workplaces safer. Once again, it is a 
punishment-only approach that ignores the importance of 
proactive prevention.
    Members on both sides of the aisle are anxious to make 
mines and miners safer. The bill before us today is a missed 
opportunity to learn the lessons from Upper Big Branch and a 
clumsy attempt to drive up workplace litigation in the name of 
safety. I hope to rectify both of these flaws before the bill 
receives a vote in this committee.
    Thank you, Mr. Chairman. I yield back.
    [The statement of Mr. Kline follows:]

   Prepared Statement of Hon. John Kline, Senior Republican Member, 
                    Committee on Education and Labor

    Thank you Chairman Miller, and good afternoon to our distinguished 
witnesses from inside and outside the federal government. This is a 
far-reaching piece of legislation, and we value the multiple 
perspectives you bring.
    The April 5th Massey mine explosion that took the lives of 29 West 
Virginians was a mining tragedy the likes of which our nation had not 
seen in four decades. We all share a goal of preventing such a tragedy 
from ever happening again.
    Over the years, Congress has taken repeated steps to improve mine 
safety. Yet as this loss reminds us, more work must be done to 
modernize our laws, toughen penalties on bad actors, and ensure federal 
agencies are fulfilling their oversight and enforcement 
responsibilities.
    I mentioned my appreciation for the viewpoints represented here 
today, but I would be remiss if I did not acknowledge the notable 
absence of the Labor Department's Inspector General. As the agency's 
independent watchdog, the IG is in a unique position to offer unbiased 
analysis of MSHA's strengths and weaknesses in enforcing our mine 
safety laws. I am disappointed Chairman Miller declined my request to 
call the IG to testify and share his perspective on issues clearly 
relevant to any serious discussion about mine safety.
    In recent months, the IG's office has identified weaknesses in mine 
inspector training and re-training, leaving MSHA personnel without the 
up-to-date knowledge of health and safety standards or mining 
technology needed to perform their inspection duties.
    The IG's office also identified a disturbing failure by MSHA to 
enforce its ``pattern of violation'' authority under current law, which 
subjects mines with repeated safety violations to stricter scrutiny and 
tougher enforcement.
    As outlined in a June 23, 2010 Alert Memorandum, the IG's office 
described an internal MSHA policy that resulted in at least 10 mines 
being removed from potential POV status for reasons--and I'm quoting--
``other than appropriate consideration of the health and safety 
conditions at those mines.''
    I have corresponded with Assistant Secretary Main about this 
unacceptable breakdown in enforcement, and I look forward to continuing 
that dialogue today as we seek answers about the agency's enforcement 
practices and capabilities.
    This is a vital discussion that cannot wait, particularly because 
this committee appears to be moving quickly toward a vote. In fact, 
today we are examining legislation introduced by the majority as 
Members left Washington for the Independence Day work period. My staff 
advises me that a committee vote on this legislation could come as 
early as this week.
    I do appreciate Chairman Miller's apparent urgency--I would simply 
urge us to act as quickly as is prudent to make the necessary changes 
to the law and its enforcement to protect miners.
    Unfortunately, we do not yet have all the information we need to 
identify how best to keep miners safe and crack down on bad actors.
     Three investigations into the Upper Big Branch explosion--
by MSHA, an independent federal review commission, and the state of 
West Virginia--are currently underway.
     At Congress's request, the Inspector General is conducting 
a review of MSHA policies that led to lax enforcement. The results, 
which will include recommendations for reform, are not expected until 
September.
     This Committee requested and was granted extraordinary 
authority from the House of Representatives to investigate underground 
mine safety in May. Our investigation is ongoing.
    Instead of rushing to legislate without all the facts, I hope we 
listen to the experts who are here today and use their expertise along 
with the eventual findings of the investigations I just mentioned to 
enact a bill with a clear focus on making mines safer, period.
    One important way to do that would be to set aside H.R. 5663's 
misplaced inclusion of OSHA reforms in a bill that ought to be squarely 
focused on the safety of miners underground.
    The proposed changes to the OSH Act would dramatically reshape 
workplace safety policies for virtually every private-sector employer 
in America. These provisions will drive up costs and litigation for 
employers--all of which would make it more difficult to create jobs at 
a time when our economy needs them most.
    And for all these changes proposed under the banner of workplace 
safety, the legislation does nothing to help employers make their 
workplaces safer. Once again, it is a punishment-only approach that 
ignores the importance of proactive prevention.
    Members on both sides of the aisle are anxious to make mines and 
miners safer. The bill before us today is a missed opportunity to learn 
the lessons from Upper Big Branch, and a clumsy attempt to drive up 
workplace litigation in the name of safety. I hope we rectify both of 
these flaws before any bill receives a vote in this committee. Thank 
you, and I yield back.
                                 ______
                                 
    Chairman Miller. Thank you.
    Without objection, we will hear opening statements from the 
chair and the ranking member of the subcommittee of 
jurisdiction, the Subcommittee on Workforce Protections.
    And I will now recognize Congresswoman Woolsey and then 
recognize Congresswoman McMorris Rodgers.
    Congresswoman Woolsey.
    Ms. Woolsey. Thank you, Mr. Chairman, and thank you for 
your leadership on miner and worker health and safety. You 
mentioned Senator Byrd's support, and I have been made aware 
that Senator Byrd, who was involved in the drafting of this 
bill, had words said at his funeral, because his family at the 
funeral asked that in lieu of flowers, contributions be made to 
help the families of the UBB disaster.
    So following in Senator Byrd's huge footsteps, H.R. 5663 is 
a truly comprehensive bill. It will make lifesaving 
improvements to benefit the hardworking men and women, who 
often perform the most dangerous work in our Nation. The 
Subcommittee on Workforce Protections has made bringing worker 
health and safety into the 21st century our very top priority. 
So, along with the full committee, we have held several 
hearings on health and safety, including two legislative 
hearings this year, on H.R. 2067, the Protecting America's 
Workers Act, PAWA, which now has about 113 co-sponsors.
    And just about three weeks ago, the subcommittee traveled 
to Middletown, Connecticut, to explore the causes and solutions 
of a February explosion at the Kleen Energy Plant, which killed 
six workers and injured at least 50 others. This recent 
accident in Middletown, as well as the tragic blast at Upper 
Big Branch Mine in West Virginia, and explosions in Washington 
State and in the Gulf involving multiple fatalities and 
injuries underscores how our Federal health and safety laws 
must be strengthened.
    This year has been a particularly tragic one for the 
American worker. And the sad truth is that these explosions 
probably, absolutely could have been prevented had employers 
put miners and workers above profits.
    Among other important provisions in H.R. 5663, it 
strengthens whistleblower laws to protect those workers and to 
protect those miners who speak out about unsafe conditions. 
Since inspectors cannot be at every single workplace every 
minute, we depend on miners and other workers to be vigilant. 
Yet when they are, they often lose their jobs or are otherwise 
retaliated against. So, Mr. Chairman, I commend you for 
inserting these protections in H.R. 5663, which also includes 
the provision to provide that miners cannot be fired except for 
good cause.
    H.R. 5663 also contains other important provisions, 
including complete overhaul of the pattern of violation section 
in the Miner Act--the Mine Act, to effectively reign in serial 
violators. And H.R. 5663 adopts from PAWA updated criminal and 
civil penalties, a family involvement provision and abatement 
during contest, some of this which is already in the Mine Act, 
fortunately.
    So, again, Mr. Chairman, thank you for your leadership. I 
look forward to hearing from our distinguished panel and these 
wonderful witnesses you brought before us today, and to work 
with you to pass this very, very important legislation.
    I yield back.
    Chairman Miller. The gentlelady yields back.
    With that, the chair would recognize the ranking member of 
the subcommittee, Congresswoman McMorris Rodgers.
    Mrs. McMorris Rodgers. Thank you, Mr. Chairman, and thank 
you for holding this important hearing today.
    I don't think any of us will ever forget the April 5th 
explosion at the Upper Big Branch Mine or the attempted 
recovery efforts that followed the weeks after. The explosion 
left our Nation deeply saddened and with many questions about 
the cause and the overall safety of the Upper Big Branch Mine 
and mines around the country.
    Since then, several investigations have ensued, including 
within this committee, looking at the underlying causes of the 
explosion and the need for changes to our mine safety 
regulations and laws.
    I am concerned that the bill we are considering today may 
be premature. We have yet to see the findings of any of these 
investigations, including by this committee.
    Let me be clear, we need to ensure that our mines are safe. 
No bad actor should go unpunished, especially when lives are at 
stake. But we need to better understand what laws are working 
within the current safety structure and which ones are not, 
including examining whether the Mine and Safety Health 
Administration was fully enforcing the current safety laws to 
the best their ability.
    I fear that the bill that we are considering today may not 
even make our mines safer, but it will negatively impact every 
employer in this Nation, making numerous unrelated changes to 
OSHA, in fact raising the cost of doing business for every 
employer in America. At a time when jobs are scarce and the 
economy is struggling, we need to do all we can to encourage 
policies that expand on economic recovery and that encourage a 
better working relationship between the safety inspectors and 
our employers, not one that is going to take scarce resources 
away from safety and put it towards litigation.
    I would like to thank our witnesses for being here, and 
look forward to hearing more from them on what we can do to 
ensure that our workplaces are safe, including those that are 
underground. And I yield back the balance of my time.
    Chairman Miller. I thank the gentlewoman. The gentlewoman 
yields back the balance of her time.
    Without objection, the committee is joined on the dais 
today by two Members of the West Virginia delegation who will 
be recognized to ask questions after the Members who are 
currently in the room, the sitting members of the committee who 
are currently in the room, have an opportunity to ask 
questions. And that is Congressman Nick Rahall and 
Congresswoman Shelley Moore Capito.
    Welcome to the committee, and thank you for your 
involvement in this unfortunate event, but we appreciate all of 
the help you and your staffs have given this committee.
    And with that, I would like to introduce our first panel of 
witnesses at this hearing.
    Our first will be Mr. Joseph Main, who is the Assistant 
Secretary of Labor for the Mine Safety and Health 
Administration. He began working in coal mines in 1967 and has 
more than 40 years of experience in mine health and safety. He 
served as Administrator of the Occupational Health and Safety 
Department of the United Mine Workers for 22 years.
    Ms. Patricia Smith is the Solicitor of Labor for the 
Department of Labor. Previously, Ms. Smith served as the New 
York State Commissioner of Labor since March 6, 2007. Prior to 
that, Ms. Smith served as Chief of the Labor Bureau of the New 
York State Attorney General's Office.
    Mr. David Michaels is the Assistant Secretary of 
Occupational Safety and Health. And before coming to OSHA in 
2009, he was a professor at George Washington University School 
of Public Health from 1998 to 2001. Mr. Michaels served as the 
Department of Energy's Assistant Secretary for Environmental 
Health and Safety.
    Welcome to the committee. We look forward to your 
testimony. As you know, your written statements will be placed 
in the record in their entirety, and you proceed in the manner 
in which you are most comfortable.
    Most of you all have experience before the committee, but 
you know, we have a lighting system here. The green light will 
go on when you begin, and a yellow light will give you a 
warning when to wrap up, and then a red light when it should 
come to an end. But we want you to convey your comments and 
important thoughts on this matter that you are most 
comfortable. Thank you.
    Mr. Main--Secretary Main, excuse me.

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

    Mr. Main. Mr. Chairman, thank you, ranking member, members 
of the committee. I appreciate the invitation to testify on 
behalf of the U.S. Department of Labor Mine Safety and Health 
Administration today about the Miner Safety and Health Act of 
2010.
    Secretary Solis and I are dedicated to safeguarding the 
health and safety of our Nation's miners, and this bill helps 
reform, will help realize that goal, and I hope the 
administration's--excuse me, and I offer the administration's 
thank you.
    Thank you, Mr. Chairman, Congresswoman Woolsey, Congressman 
Rahall and your House and Senate colleagues, especially Senator 
Harkin, Senator Rockefeller and the late Senator Byrd, for your 
work on the bill with critical provisions we have sought.
    We are all mindful of the urgency of our efforts. We have 
heard the pleas for change from the family members of miners 
lost in the Upper Big Branch Mine. I want Eddie Cook, Gary 
Quarles, Alice Peters, Steve Morgan, Clay Mullins and Goose 
Stewart and the family and friends of all the coal miners to 
know that their government is listening. We will make good on 
President Obama's promise to act before another horrific mine 
accident.
    The administration fully endorses the committee's effort to 
pass this bill this session. Simply put, this bill will save 
lives. The bill is true to the Mine Act principles that mine 
operators are responsible for the health and safety of our most 
precious resource, the miner. It promotes a culture of safety 
and will give MSHA effective new tools to hold to account mine 
operators who fail or refuse to meet their obligations.
    The most important of these new tools is the revamped 
pattern of violation system. As I have said repeatedly, the 
current system is broken. As I have said on many occasions, we 
need to fix the pattern of violation system. No mine has been 
placed on the pattern since Congress enacted the law in 1977. 
This legislation eliminates the rule that MSHA base a POV 
finding on final orders of the Federal Mine Safety and Review 
Commission orders that are issued years after the fact.
    This bill requires MSHA to act on current conditions of the 
mine and takes a remedial approach, unlike the current punitive 
system, for changing conduct of mines where noncompliance 
elevates the risk to miners.
    The bill also establishes strong protections for miners to 
take an active role in their own health and safety. Unlike 
miners MSHA is not at a mine on every shift every day. As the 
committee learned at the Beckley field hearing, many miners 
won't speak up about safety problems for fear of losing their 
jobs. Armed with the bill's new training requirements and stiff 
penalties for discrimination, we are resolved to changing that 
culture of fear.
    The bill also fixes the serious problems of advance notice 
of inspections. Inspectors cannot make effective inspections 
where unscrupulous operators break the law by getting advance 
notice of an inspection. They hide dangerous practices with 
temporary fixes until the inspectors leave.
    The bill increases criminal penalties, requires posting of 
the criminal provisions on mine property and gives MSHA 
subpoena power to uncover this illegal conduct. MSHA will work 
with the Justice Department to stamp out this unconscionable 
practice.
    The bill's preshift examination provision for underground 
coal mines advances the principle that operators take 
responsibility for preventing violations and not wait on MSHA 
to find the problems. Diligent preshift inspections and a 
communication plan to protect miners will lead to fewer 
citations and safer mines. The bill advances better technology 
for atmospheric monitoring of methane and other dangerous 
gases. That will help prevent deadly explosions and will 
provide critical information about mine conditions during mine 
rescue operations when timely information is a matter of life 
and death.
    Other important provisions expedited power to revoke mine 
plans that do not adequately protect miners and improvements to 
our certification process for safety personnel providing 
regular recertification and a revocation process for those who 
shirk their responsibilities. Solicitor Smith will discuss the 
bill's important clarification of what violations are 
significant and substantial and its improvements to the 
Secretary's investigation and injunctive powers.
    Finally, I would like to express the administration's 
support for the Protecting America's Workers Act provisions 
included in this bill. All workers deserve a safe and healthful 
work place.
    Again, I would like to thank the committee for moving this 
bill forward. I can think of no better way to honor the memory 
of Senator Byrd and the 29 miners who perished at the Upper Big 
Branch Mine than to enact safeguards to protect miners from 
another disaster. This bill is our best chance to accomplish 
this goal.
    I will be happy to answer any questions that you may have. 
Thank you.
    [The statement of Mr. Main follows:]

   Prepared Statement of Hon. Joseph A. Main, Assistant Secretary of 
 Labor, Mine Safety and Health Administration, 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), and 
on behalf of Secretary of Labor Hilda Solis, to discuss the Miner 
Safety and Health Act of 2010. Secretary Solis has been a great 
supporter of MSHA's mission and a champion of greater protections for 
all workers. I am also pleased to join the Solicitor of Labor, Patricia 
Smith, and Assistant Secretary David Michaels, who I have worked with 
closely these past months. Both are powerful advocates for stronger 
safeguards to protect the health and safety of all workers and for 
holding employers accountable.
    When I took on the mission of leading MSHA as the Assistant 
Secretary I did so with a clear purpose in mind--to implement and 
enforce the nation's mine safety laws in order to improve health and 
safety conditions in the nation's mines and enable miners to go to 
work, do their job, and return home to their families each and every 
day free of injury, illness or death. That is what my administration is 
about.
    I must acknowledge why we are here. We would not be discussing 
sweeping improvements to the Mine Act if it were not for the 29 miners 
who lost their lives at the Upper Big Branch (UBB) Mine. Since the 
disaster, I have met with the families of the victims of that tragedy 
on several occasions. My prayers go out to the families and their loved 
ones. I believe I speak for everyone here when I express my hope that 
we will all remember their profound loss as we move forward in making 
reforms that will save other mining families, other mining communities, 
from experiencing their grief.
    We saw in living detail how committed these families are to 
protecting their brethren from going through this kind of tragedy again 
when they testified at this Committee's field hearing in Beckley. They 
bravely told me and this Committee how the mining industry and our mine 
safety system had failed them. I want Eddie Cook, Gary Quarles, Alice 
Peters, Steve Morgan, Clay Mullins, and Goose Stewart to know that 
their pleas for change did not fall on deaf ears.
    When the Secretary and I met with the President shortly after the 
Upper Big Branch explosion, he made clear his personal commitment and 
that of the Administration to honor the victims of this disaster by 
ensuring justice is served on their behalf and that an accident of this 
magnitude never happens again. He told the nation ``we owe [those who 
perished in the UBB disaster] more than prayers. We owe them action. We 
owe them accountability. We owe them an assurance that when they go to 
work every day, when they enter that dark mine, they are not alone. 
They ought to know that behind them there is a company that's doing 
what it takes to protect them, and a government that is looking out for 
their safety.''
    To ensure that justice is done on their behalf, I have directed 
MSHA to conduct a thorough and comprehensive investigation into what 
caused the explosion on April 5th. I am pleased to report that this 
investigation is well underway. MSHA investigators have conducted more 
than 100 interviews with Massey employees and MSHA personnel. In 
addition, our investigative team has finally been able to reenter the 
mine safely and our physical investigation of the mine is ongoing.
    This investigation will be the most open and transparent in MSHA's 
history. We will be holding a number of public hearings, enabling 
unprecedented public participation in the investigation. Moreover, MSHA 
is conducting its investigation in a manner designed to avoid any 
interference in the Justice Department's criminal investigation.
    Today's hearing is a critical step forward in making good on the 
President's promise that this Administration would take action to 
prevent future mine accidents. The Secretary and I applaud the work of 
Congressman Miller, Chairwoman Woolsey, Congressman Rahall and their 
Senate colleagues in drafting this bill, as well as the hard work of 
their staffs. I personally appreciate the opportunity that all of you 
gave me to have worked so closely with you on this legislation. It 
closes some critical gaps in the Mine Act and establishes strong new 
protections for miners. I am proud to tell you that this Administration 
fully endorses the Committee's efforts to move this legislation this 
year and we look forward to working with you on this legislation as it 
moves through the legislative process.
    This bill rests on a solid foundation of principles. Those 
principles are:
     that every worker is entitled to come home from work 
safely at the end of a shift;
     that fatalities, injuries and illnesses can be prevented 
when employers institute and follow safety plans, prevent hazards, and 
protect workers, even in dangerous industries like mining; and,
     that the best role MSHA can play is to enforce mine 
operators' obligation to take responsibility for the safety and health 
of their workers.
    The tragic explosion at the Upper Big Branch mine revealed that the 
nation's mine safety laws are not serving these principles the way they 
should. The Miner Safety and Health Act of 2010 will bring those 
principles back to the forefront, and put the health and safety of 
miners first.
    I believe this bill really will change the culture of safety in the 
mining industry. It does not simply fix a particular hazard or practice 
that caused the last disaster, as has often been the pattern in mine 
safety reform. Instead, it gives MSHA the tools it needs either to make 
mine operators live up to their legal and moral responsibility to 
provide a safe and healthful workplace for all miners, or to step in 
with effective enforcement when operators refuse to live up to this 
responsibility and endanger miners.
    While Solicitor Smith and I look forward to discussing many aspects 
of the bill, I would like to discuss a few particular provisions I 
believe will, if enacted, save lives, help prevent mine explosions, 
help ensure that miners have a meaningful and protected voice about 
their own health and safety at work, and bring problem mine operators 
into compliance with the law.
    Among the most important provisions of this bill is its replacement 
of the Mine Act's pattern of violations (POV) provision. The bill would 
make the POV system a meaningful tool in MSHA's arsenal. When I first 
appeared before this Committee in February to testify about the backlog 
of contested cases pending before the Federal Mine Safety and Health 
Review Commission, one of the areas I identified for needed reform was 
MSHA's current pattern of violations process. The Mine Act's POV 
provision was intended to provide MSHA a powerful tool to deal with 
mine operators who demonstrated, through continued significant and 
substantial health or safety violations, a disregard for the health and 
safety of miners. Instead, the POV provision is an empty vessel--it has 
never been successfully implemented against a mine operator in the 
history of the Mine Act--and is broken by all accounts, including 
MSHA's.
    I have been working on POV reform since shortly after my 
confirmation. Last winter, and well before the explosion at Upper Big 
Branch, MSHA put its planned reform of pattern of violations 
regulations on its Spring Regulatory Agenda. This legislation will 
expedite that needed reform.
    Under current regulations, establishing an operator's pattern of 
violations simply takes too long and exposes miners to risk when MSHA 
should be acting. MSHA can only act after an operator has a number of 
violations that have become final orders of the Commission. Given the 
current backlog of Commission cases, MSHA is pursuing pattern violators 
years after the violations occurred. The Miner Safety and Health Act of 
2010 fixes this problem by eliminating the final order requirement and 
directing MSHA to identify mines with a pattern of recurring accidents, 
injuries, illnesses or citations or orders for safety or health 
violations that indicate an elevated risk to miners. This change will 
allow MSHA to use this enhanced enforcement tool looking at more recent 
violations and events rather than ones that are years old. The bill 
still provides that operators can seek an expedited review of 
withdrawal orders issued under the pattern process, but it does not 
require cases to work their way through the system before MSHA can act. 
I believe this bill will save lives and prevent injuries by enabling 
MSHA to act quickly to enforce compliance with the Mine Act at 
operations with high levels of violations.
    The bill also makes the Mine Act's pattern provisions more remedial 
than current law and more focused on forcing a change in the safety 
culture of mines that fail to establish a commitment to miner safety 
and health. Under this bill, if MSHA determines that a mine has a 
pattern of recurring citations, MSHA is authorized to require the 
operator to take particular actions tailored to the risks to which 
miners have been exposed, including additional training for miners, 
establishing a health and safety management program, and designating 
certified safety personnel at the mine to address the mine's health and 
safety problems. The bill also increases the number of workplace 
inspections for mines in pattern status and authorizes MSHA to directly 
communicate with a POV mine's workforce about conditions at the mine 
and the rights of miners under the Act.
    Under the new POV program, MSHA will have an open and transparent 
system for choosing mines that need to be put into POV status. The data 
that MSHA uses to evaluate the appropriateness of putting a mine on POV 
status will be available for the public to review and the criteria will 
be direct and comprehensible. I believe many mine operators will take 
advantage of this openness and transparency to monitor their own 
performance and change their ways before they put their miners into 
danger. Those mine operators should know whether their lack of 
compliance will necessitate putting them on POV status, before that 
happens, and they will be able to improve conditions at their mines 
before MSHA must step in to assist in remediating the conditions at the 
mine.
    I strongly believe that a safe mine requires the active involvement 
of miners who are informed about safety and health issues as well as 
their rights under the Act to demand a safe workplace. I have met with 
many mine operators, and those operators with the strongest safety and 
health cultures would agree that the participation and involvement of 
miners in safety and health is a key component of their safety records. 
However, the powerful testimony at the Committee's Beckley field 
hearing underscored that there are operators who fail or refuse to 
embrace this view.
    Miners that testified at the hearing made clear that that some 
miners are often afraid to speak up about conditions at their mines. 
Even when miners know of threats to their own safety and the safety of 
their fellow miners, they face a significant risk of losing their jobs, 
sacrificing pay, or suffering other negative consequences if they come 
forward.
    No one knows the conditions in the mines better than the miners 
themselves. Just as a traffic cop cannot be on every street corner 
catching every speeding car, MSHA inspectors cannot be in every mine, 
finding every hazard every day of the week. It is absolutely crucial 
that miners bring dangerous conditions to mine operators' and MSHA's 
attention before those conditions cause injuries, illnesses, or even 
fatalities.
    This bill establishes important protections for miners when they 
exercise their rights under the Mine Act. The Mine Act has long 
protected from retaliation miners who come forward to report safety 
hazards. We have heard loud and clear, however, that those protections 
are simply inadequate and that miners lack faith and belief in the 
current system. The Miner Safety and Health Act of 2010 makes dramatic 
changes in this area and gives MSHA the tools it needs to protect 
miners who come forward. The bill:
     Makes explicit the right of all miners to refuse to 
perform work they reasonably believe to be unsafe;
     Creates a fairer and faster process to get miners their 
jobs back if they are discriminated against for coming forward to 
complain about safety or health issues;
     Eliminates the financial disincentive for miners to report 
safety hazards that might result in the mine being shut down so the 
hazards can be fixed by guaranteeing miners pay during all safety-
related shut downs. No one should have to choose between a paycheck and 
protecting him or herself; and,
     Substantially increases penalties for mine operators who 
retaliate against miners who report safety hazards.
    MSHA will work hard to vigorously enforce these new protections. 
Part of this reform is to ensure that miners are aware of their rights. 
This bill makes strides in that direction. It requires that miners 
receive annual refresher training on their rights, including the right 
to report hazardous conditions, receive training, participate in mine 
inspections through a representative of miners, and refuse to work in 
hazardous conditions.
    The bill also includes several important provisions to require mine 
operators to find dangerous conditions in their mines before they hurt 
or kill miners and to take action to fix them. The Labor Department's 
Spring 2010 Regulatory Agenda announced our intention to use new tools 
to detect and prevent hazards to workers. Generally, DOL announced its 
intent to move towards a broad strategy that requires employers to 
understand that the burden is on them to obey the law before they are 
visited by DOL. We call this compliance strategy ``Plan/Prevent/
Protect.'' The provision on the pre-shift review of mine conditions 
advances this strategy.
    The Mine Act mandates operator pre-shift examinations for such 
hazards or violations of mandatory health or safety standards as the 
Secretary requires. These examinations are a critical component of an 
effective safety and health program for underground mines. In the ever-
changing mine environment, it is critical that hazardous conditions and 
violations be recognized and abated quickly. The provision in the bill 
is designed to ensure that all hazards and violations are communicated 
effectively so that they can be abated before anyone is hurt or killed 
by them. The result should be a reduced risk of injury, illness and 
death and should lead to fewer citations for safety and health 
violations during MSHA inspections of underground mines.
    The legislation will also help MSHA and SOL enforce the law 
successfully after inspectors cite a serious violation by clarifying 
the meaning of a significant and substantial (S&S) violation. My 
colleague, the Solicitor, will talk about this important provision in 
more detail. Let me just say that since the early 1980's, the meaning 
of an S&S violation under the Mine Act has been unreasonably restricted 
by a Commission interpretation of the law that is not consistent with 
Congressional intent or with protecting the safety and health of 
miners. The bill corrects this problem by expressly defining an S&S 
violation as one with a reasonable possibility of resulting in a 
miner's injury, illness or death.
    I will share an example of how the Commission's interpretation of 
the law restricts MSHA from doing its job. In the recent hearing to put 
Massey's Tiller Mine on a pattern of violations, the Secretary needed 
to establish that a certain number of Massey's violations were S&S in 
order to prevail. Although the Commission judge has not yet issued a 
written decision, he announced from the bench that the Secretary did 
not prevail. The judge ruled that it is not a ``significant and 
substantial'' violation of mine safety regulations to operate a piece 
of equipment with an impermissible opening into an enclosed electrical 
component in a gassy mine where combustible coal dust could be present. 
The judge interpreted the governing caselaw to require MSHA to show 
that the equipment have an existing source of electrical sparks within 
the enclosed electrical component before the violation could be 
considered ``significant and substantial.'' This is clearly wrong, 
imposing an inappropriate standard that puts miners at risk and defies 
common sense. The Mine Act is intended to protect miners, not expose 
them to needless risk before MSHA is allowed to effectively act. It 
does no good to penalize an operator with an S&S violation after miners 
have died in an explosion. This is an example of why the law needs to 
be changed and why Congress needs to ensure that when a mine operator 
allows miners to be exposed to serious hazards the law treats it as a 
serious violation.
    Now I would like to mention a preventive measure the bill adds that 
modernizes existing standards. The provision in the bill to expedite 
the process of improving atmospheric monitoring in mines will make 
operators, MSHA, state agencies and mine emergency teams better 
prepared for mine emergencies. Specifically, the provision requires the 
National Institute for Occupational Safety and Health to advance the 
research in how to better monitor the atmosphere in mines for the 
deadly threats of methane and other dangerous gases. The Secretary then 
plans to engage in rulemaking in response to NIOSH recommendations. We 
anticipate that ultimately we will be able to have real-time monitoring 
of a mine's atmosphere during a mine emergency.
    In addition, in day-to-day operations, mine operators would know 
when their miners are being put in peril as a result of a build up of 
dangerous gases. It will then be incumbent upon operators to determine 
the cause of the build up and to plan how to effectively fix the 
problem. The bottom line is that better atmospheric monitoring will 
prevent deadly explosions, fires, injuries, and fatalities and speed 
the rescue of miners in the event of emergency.
    The bill will also prevent disastrous explosions by updating the 
rock dust standards. The bill not only mandates that operators increase 
the amount of incombustible dust present in airways--the established 
method of suppressing the threat of combustible coal dust--but it also 
establishes a framework for operators to better monitor the 
explosibility of the dust present in their mines. Just as better 
atmospheric monitoring mandated by this bill will give operators the 
information they need to plan how to prevent methane and gas 
explosions, better monitoring of explosive coal dust will give 
operators the information they need to plan how to prevent a build up 
of coal dust that results in devastating propagation of explosions.
    As I mentioned at the outset, this bill includes important new 
tools to allow MSHA to step in and act quickly to protect miners at 
risk. The Solicitor will talk about the most important of these--
enhanced power for MSHA to seek an injunction. I would like to 
highlight several other provisions. First, the bill gives MSHA the 
authority to revoke mine safety plans based on material changes in the 
mine conditions or if the original plan was based on inaccurate 
information. This means that MSHA does not have to sit on the sidelines 
when it sees that conditions in the mine do not match the conditions 
described in the mine plans for roof control, ventilation and emergency 
response.
    In addition, under this bill, MSHA will play an increased role in 
ensuring the competence of those personnel in mines whose jobs are so 
critical to maintaining a safe workplace that the law requires them to 
be certified as qualified. The bill's certification provisions will 
allow MSHA and the states to reinstate accountability in mine safety 
and health. The bill requires recertification of certified personnel to 
ensure their skills are up to date, as well as a means to revoke a 
certification if someone in a certified safety position fails to carry 
out his or her responsibilities. MSHA will work with states to assure 
those who have positions of responsibility that are certified or 
qualified are doing their job, and that they lose their certification 
if they fail to carry out their responsibilities. MSHA will step in 
where gaps exist in state laws and certifications to ensure that those 
who perform certified or qualified safety jobs are qualified safety 
professionals. I pledge to work closely with my counterparts in the 
states to create a seamless certification system.
    Another important means of protecting miners at risk is through 
adequate and appropriate training. Too often the rush to produce as 
much coal as possible means cutting corners when it comes to training 
miners properly. If there is a serious accident or fatality, MSHA's 
ability to cite violations does not necessarily address the root 
problem. The ability to ensure miners have the training they need will 
improve working conditions and save lives.
    Finally, I would like to comment on a new tool given to the Justice 
Department in this bill. The bill will increase criminal penalties for 
giving advance notice of an MSHA inspection. I am sure many were 
shocked to hear the testimony at the Beckley field hearing about how 
common it is for mine operators to have advance notice of MSHA's 
inspections. This is a serious problem. MSHA recently took enforcement 
action against two Ben Bennett mines in Kentucky, Manalapan Mining 
Company's RB #5 Mine and Left Fork Mining Company's Mine #1, when 
agency inspectors caught the company tipping off the mine as the 
inspectors arrived. At other mines MSHA has attempted to prevent the 
advance notice by capturing mine phones to keep mining personnel from 
tipping off the underground mining operations. Another example is the 
Tiller Mine, a Massey operation in Virginia that MSHA recently tried, 
unsuccessfully, to make the first mine ever placed on a pattern of 
violations. According to a report in the Washington Post, miners at the 
surface routinely alert underground miners that a federal inspector is 
headed underground. Clearly, my inspectors cannot conduct effective 
inspections if unscrupulous mine operators know that the inspector is 
on the way and make quick and short-lived fixes to hazards that put 
miners at risk just to avoid enforcement actions. This bill attacks the 
problem by making it a serious crime to give advance notice of an MSHA 
inspection. Our whole enforcement system relies upon fair and accurate 
inspections--this provision will enhance the integrity of that system. 
This is also another reason why MSHA needs the power to use subpoenas 
provided under this bill. Some mine owners who operate their mines in 
violation of health and safety laws when MSHA inspectors are not 
present, and use unlawful tactics to get tipped off about pending 
inspections, should know that under this bill, we will be able to more 
effectively investigate and expose these unsafe and illegal practices 
which endanger miners.
    My colleague, Assistant Secretary Michaels, will discuss this 
significant aspect of the legislation in more detail, but I would like 
to express the Administration's strong support for including provisions 
from the Protecting America's Workers Act in this bill. All workers, 
regardless of where they work--underground in a mine, out in the ocean 
on an oil rig, or in a factory on the land--deserve a safe and 
healthful workplace.
    I had the privilege of working with Senator Robert C. Byrd 
throughout my career. Without a doubt, coal miners never had a better 
friend than Senator Byrd. He fought with his legendary tenacity to keep 
them safe and protect them from black lung disease. I can think of no 
better way to honor his memory and the memory of the 29 miners who 
perished at the Upper Big Branch mine than to prevent another disaster. 
This bill is our best chance to accomplish this goal. I look forward to 
working with the Committee as the bill moves forward. I am happy to 
answer your questions.
                                 ______
                                 
    Chairman Miller. Thank you.
    Solicitor Smith.

 STATEMENT OF HON. M. PATRICIA SMITH, SOLICITOR OF LABOR, U.S. 
                      DEPARTMENT OF LABOR

    Ms. Smith. Chairman Miller, Ranking Member Kline and the 
members of the committee, for more than three decades the 
enforcement tools of the Mine Act and the Occupational Safety 
Act have played a pivotal role in cutting the number of work-
related deaths, injuries and illnesses.
    But as recent tragic events have demonstrated, all tools 
need to be periodically sharpened. The tools in the Mine Act 
and the OSHAct are no exception.
    I would like to focus today on several provisions in H.R. 
5633 that will, if enacted, sharpen our enforcement tools and 
help make our mines and other workplaces healthier and safer 
places to work.
    Under the Mine Act, an operator with significant and 
substantial violations can be subject to increasingly severe 
enforcement actions, including withdrawal orders. Although 
Congress did not define significant and substantial in 1977 
when it passed the Mine Act, MSHA and the Solicitor's Office 
believe the phrase applies to all violations that have a 
reasonable possibility of resulting in injury, illness or 
death, and excludes only violations that either present no 
hazard or violations in which the hazard is speculative or 
remote. We believe this interpretation is consistent with the 
legislative history of the Mine Act.
    Unfortunately, the Federal Mine Health and Safety Review 
Commission does not agree and has established a four-part test 
for S&S, which in our view has hampered enforcement for many 
years. Violations under the commission-imposed standard must 
rise nearly to a level of imminent danger before they are 
considered S&S. I have given several examples of these cases in 
my written testimony. Section 201 of the bill would more 
closely reflect what we believe was Congress's original intent 
by defining an S&S violation as one in which there is a 
reasonable possibility that such a violation could result in 
injury, illness or death. We support this streamlined 
definition, which we think will provide a clearer standard for 
operators, enhance mine health and safety, and reduce 
counterproductive litigation over whether a particular 
violation is indeed S&S.
    Mine safety and effective enforcement will also be enhanced 
by the bill's amendment to the Mine Act injunction relief 
provision. Section 108(a)(2) of the act authorizes the 
Secretary to ask a Federal District Court for appropriate 
relief, including a temporary or permanent injunction, if she 
believes that the operator of a mine is engaged in, quote, ``a 
pattern of violations of mandatory health or safety standards 
that constituents a continuing hazard to the health and safety 
of miners.''
    This provision has provided two difficulties. First, it 
requires the Secretary to establish a pattern, a term that 
closely echoes the term ``pattern'' in Section 104(e)'s pattern 
of violations provision, which as Assistant Secretary Main has 
described has proved difficult to apply and to enforce.
    Second, it limits the basis for the pattern to violations 
of mandatory health and safety standards. Section 203 of the 
bill addresses these issues. It replaces the term ``pattern'' 
with the phrase ``course of conduct,'' and it specifies that 
the behavior that would support injunctive relief is not 
limited merely to violations of mandatory health and safety 
standards, but it includes other things, like violations of 
orders.
    A third welcome provision in the bill is the provision 
expanding the Secretary's authority to issue subpoenas for the 
purpose of taking testimony and other evidence. Currently, that 
power is only given in conjunction with public hearings. 
Section 102 of the bill would authorize the Secretary to issue 
subpoenas in conjunction with the performance of any of her 
functions. It would also authorize MSHA representatives and 
attorneys to question individuals privately, to take an 
individual's confidential statement outside the presence of the 
operators or attorney if the individual so desires, and to 
maintain the confidentiality of that statement to the extent 
permitted by law.
    The bill also adds two new criminal provisions to the Mine 
Act and strengthens both the Mine Act's and OSHAct's current 
sanctions for criminal conduct. The bill would amend the Mine 
Act so that giving advance notice of MSHA inspections would be 
treated with the severity it deserves. Advance notice prevents 
MSHA inspectors from being able to observe the mining as it is 
actually occurring. The bill would make such conduct, which is 
currently treated as a misdemeanor, a felony.
    The bill would also provide a brand new criminal provision 
making it a felony to retaliate against any person, miner or 
nonminer, who reports unsafe conditions to MSHA. Such conduct 
would be subject to the fines set forth in the code and would 
carry a maximum prison term of ten years. This provision would 
encourage miners, their relatives and others to notify the 
government of mine safety violations by ensuring them that 
retaliation for acting would be met with effective punishment.
    Both the Mine Act and the OSHAct already contain some 
criminal provisions. However, most of these violations are 
treated as misdemeanors. Building on that foundation the bill 
would analyze all such violations by individuals, operators, 
and employers under a knowing standard and would raise the 
maximum penalties for knowing violations fourfold and make 
first-time convictions felonies rather than misdemeanors, which 
is currently the case.
    These charges, especially the prospect of a significant 
period of incarceration, we believe would focus management 
personnel on their responsibility to keep their mines safe. The 
bill would also make other important improvements to the 
OSHAct. And I will mention just two of them.
    First, it grants rights to accident victims and their 
families and other representatives. They must be notified. 
Second, the bill would allow OSHA to require prompt abatement 
of all serious hazards, even if the employer files a notice of 
contents. And Assistant Secretary Michaels' testimony will 
explain the importance of that.
    So I appreciate the opportunity to testify on this 
important legislation. As Secretary Solis said when the bill 
was introduced, there is a tremendous need for this legislation 
in order to save the lives and health of American workers in 
mines and throughout the Nation, and I look forward to your 
questions.
    [The statement of Ms. Smith follows:]

   Prepared Statement of Hon. M. Patricia Smith, Solicitor of Labor,
                        U.S. Department of Labor

    For more than three decades, the enforcement tools in the Mine Act 
and the Occupational Safety and Health (OSH) Act have played a pivotal 
role in helping cut the number of work-related injuries, illnesses, and 
deaths to historic lows. But, as recent tragic events have 
demonstrated, all tools need to be recalibrated and sharpened from time 
to time if they are to remain useful. The tools in the Mine Act and the 
OSH Act are no exception. I would like to focus my comments today on 
several provisions in H.R. 5663, the ``Miner Safety and Health Act of 
2010,'' that will, if enacted, sharpen our existing enforcement tools 
and help make our mines and other workplaces safer and healthier places 
to work.
    Under the Mine Act (the Act), an operator with ``significant and 
substantial'' (S&S) violations can be subject to increasingly severe 
enforcement actions, including withdrawal orders. Although Congress did 
not define the phrase ``significant and substantial'' in 1977 when it 
passed the Mine Act, the Mine Safety and Health Administration (MSHA) 
and the Solicitor's Office believe that the phrase applies to all 
violations that have a reasonable possibility of resulting in injury, 
illness or death, and excludes only those violations that present no 
hazard or violations in which the hazard is speculative or remote. We 
believe that our interpretation is consistent with the legislative 
history of the Act, which makes it clear that the ``S&S'' standard was 
designed to cover all but purely technical violations of the Act. 
Unfortunately, the Federal Mine Safety and Health Review Commission 
does not agree, having established a four-part definition of ``S&S'' 
that, in our view, has hampered enforcement for many years. In essence, 
violations under the Commission-imposed standard must arise nearly to 
the level of an imminent danger before they are considered significant 
and substantial.
    I'd like to give you a few examples. In a 2009 case, an underground 
coal mine operator with a gassy mine had coal and coal dust 
accumulations up to four inches deep across nearly the entire width of 
the belt entry in several locations. The mine also had random piles of 
coal dust from six to eight inches deep. However, a Commission 
administrative law judge held that the accumulations violation was not 
S&S because, at the time of the violation, there were only 
``potential'' ignition sources in the area and those potential ignition 
sources were no different from ignition sources present in all belt 
entries. He also noted that methane levels were low at that time. 
Cumberland Coal Resources, LP, 31 FMSHRC 137 (Jan. 2009) (ALJ), 
reversed in part on other grounds, 2010 WL 2149801 (May 2010).
    In another 2009 case involving an underground coal mine, an 
operator failed to hang ventilation curtains, which are used to control 
coal mine dust. This was a violation of the operator's ventilation 
plan. A Commission administrative law judge acknowledged that coal was 
being cut without any ventilation controls in place, that there was no 
air movement, and that the air was thick with suspended coal dust. Yet 
the judge found that the violation was not S&S because, at the time of 
the violation, there were no potential ignition sources and methane 
levels were low. The judge also noted that the mine had not experienced 
other coal dust ignitions. Sidney Coal Co., 31 FMSHRC 1197 (Oct. 2009) 
(ALJ).
    And we face the same challenges with other types of violations. For 
example, in a 2006 case, the Review Commission found that a violation 
of certain ``hands-on'' firefighting training requirements was not S&S 
because it was not reasonably likely that the lack of that type of 
training would lead to serious injury. The Commission ruled in this 
manner even though miners in that mine actually had died fighting a 
fire improperly. Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006).
    Section 201 of the bill would more closely reflect what we believe 
was Congress' original intent by defining an ``S&S'' violation as one 
in which there is a ``reasonable possibility that such violation could 
result in injury, illness, or death.'' We support this streamlined 
definition, which will provide a clearer standard for operators, 
inspectors, and the Commission. This new definition not only will 
enhance mine safety and health, it will help reduce counterproductive 
litigation over whether a violation is ``significant and substantial.''
    Mine safety and health, as well as swift and effective enforcement, 
will also be enhanced by the bill's amendment to the Mine Act's 
injunctive relief provision. Section 108(a)(2) of the Act [30 U.S.C. 
Sec.  818(a)(2)] authorizes the Secretary to ask a federal district 
court for appropriate relief, including a temporary or permanent 
injunction, if she believes that the operator of a mine is engaged in 
``a pattern of violation of * * * mandatory health or safety 
standards'' which, in the Secretary's judgment, constitutes a 
continuing hazard to the health or safety of miners. This provision has 
presented two difficulties. First, it requires the Secretary to 
establish ``a pattern''--a term that echoes the term ``pattern'' in 
Section 104(e)'s ``pattern of violations'' provision--which has proved 
difficult to apply and enforce. Second, it limits the bases for ``a 
pattern'' to violations of mandatory health or safety standards.
    Section 203 of the bill addresses both of these difficulties. 
First, it replaces the term ``pattern'' with the phrase ``course of 
conduct,'' which is clearer, simpler, and more reflective of the kind 
of operator behavior that the Secretary's injunction authority is 
intended to correct. Second, it specifies that the kind of behavior 
that will support injunctive relief includes, but is not limited to, 
violations of mandatory health or safety standards. We believe that 
because the bill broadens the bases on which the Secretary can seek 
injunctive relief, it will enhance her ability to obtain such relief 
when necessary to protect miners.
    A third welcome provision in the bill is the provision expanding 
the Secretary's authority to issue subpoenas for the purpose of 
obtaining testimony and other evidence. Currently, the Mine Act only 
authorizes the Secretary to issue subpoenas in connection with a public 
hearing. Section 102 of the bill would authorize the Secretary to issue 
subpoenas in connection with the performance of any of her functions 
under the Act. Section 102 would give MSHA subpoena power similar to 
OSHA's and would greatly enhance MSHA's ability to conduct effective 
inspections and investigations. Section 102 also would authorize MSHA 
representatives and attorneys to question individuals privately, to 
take an individual's confidential statement outside the presence of 
operator attorneys if the individual so desires, and to maintain the 
confidentiality of a statement to the extent permitted by law.
    The bill also adds two new criminal provisions to the Mine Act, and 
strengthens both the Mine Act's and the OSH Act's current sanctions for 
criminal conduct. The bill would amend the Mine Act so that, for the 
first time, giving advance notice of MSHA inspections would be treated 
with the severity it deserves. Advance notice prevents MSHA inspectors 
from being able to observe mining as it is actually being done. The 
bill would make such conduct--currently treated as a misdemeanor--a 
felony punishable by fines set forth in title 18, U.S. Code (the 
criminal code), and a maximum prison term of five years.
    The bill also contains a brand new criminal provision making it a 
felony to retaliate against any person--miner or non-miner--who reports 
unsafe conditions to MSHA. Such conduct would be subject to the fines 
set forth in title 18, U.S. Code, and would carry a maximum prison term 
of ten years. This provision goes well beyond traditional civil 
whistleblower sanctions that allow the Secretary to penalize those who 
discriminate against miners making safety complaints to their 
employers. It encourages miners, their relatives, and others to notify 
the government of mine safety violations by providing the assurance 
that retaliation for such activity will be met with truly effective 
punishment.
    Both the Mine Act and the OSH Act already contain some criminal 
provisions. The Mine Act's current structure sets criminal penalties 
for agents who ``knowingly'' violate the Mine Act or mandatory 
standards and for operators who willfully violate the Mine Act or 
mandatory standards. The OSH Act also allows criminal sanctions for 
employers who willfully violate OSHA standards, if those violations 
cause a worker's death, but they are treated as misdemeanors. Building 
on that foundation, the bill would analyze all such violations by 
individuals, operators, and employers under the ``knowing'' standard, 
would raise the maximum penalties for such knowing violations fourfold, 
and would make even first-time convictions felonies rather than 
misdemeanors, as is currently the case. The bill would also allow 
criminal sanctions for employers whose knowing violation of an OSHA 
standard causes or contributes to serious bodily harm to an employee. 
Maximum prison terms would be increased from one year to five years for 
first-time convictions of this new OSHA provision, and of the Mine Act 
criminal provisions, and increased from five years to ten years for 
second and subsequent convictions. For knowing violations of the OSH 
Act that cause or contribute to a worker's death, a first conviction is 
punishable by up to ten years in prison and subsequent convictions are 
punishable by up to twenty years in prison. These changes--especially 
the prospect of a significant period of incarceration and a lifetime 
felony criminal record--will, in our view, focus those in management 
positions on their personal responsibility for ensuring safety in the 
mines and other workplaces they control in a way the former penalty 
structure did not.
    The bill also makes several other important improvements to the OSH 
Act. First, it modernizes the Act's whistleblower provisions, bringing 
them in line with those of the Mine Act and other safety laws. For the 
first time, workers filing OSH Act whistleblower complaints would be 
entitled to an administrative hearing and review, instead of having to 
wait years to have their cases heard in District Court. And, like 
whistleblower complainants under the 18 other statutes administered by 
the Department, including the Mine Act, OSH Act whistleblowers would 
have the right to pursue their cases on their own behalf if the 
Department declines to take them.
    The bill also increases OSH Act civil penalties to bring their 
value back to their approximate value the last time penalties were 
raised in 1990. It also allows future inflation adjustments, correcting 
an oversight that has led to OSH Act penalties, unlike virtually all 
other Federal civil penalties, continually declining in value. We 
believe this provision will go a long way toward restoring the OSH 
Act's deterrent effect, and will make it harder for employers to treat 
OSHA penalties as simply a cost of doing business. In addition, the 
criminal penalties in this bill are based on similar provisions in the 
Clean Water Act and the Resource Conservation and Recovery Act, meaning 
that killing a person will be treated just as seriously as killing a 
lake.
    In addition, the bill, for the first time, grants rights to 
accident victims and their families or other representatives. It 
requires that victims be kept informed of the status of accident 
investigations, and any resultant enforcement actions and settlement 
negotiations. They will have the right to meet with OSHA before any 
citation is issued, to receive a copy of any citation, and to be 
notified of any notice of contest. They must also be notified of any 
legal proceedings, and will have the right to participate in those 
proceedings. They will also have the right to make a statement to the 
parties conducting any settlement negotiations, and a similar right to 
make a statement to the Commission, which the Commission must consider 
in rendering its decision. To assist in exercising these rights, the 
Secretary will have to designate a family liaison in each OSHA area 
office. We understand that none of these provisions will restore a lost 
worker to a grieving family, or restore full use of faculties to an 
injured worker. But we believe they are the least we owe these workers 
and their families.
    Finally, subject to an expedited hearing before the Commission, 
this bill will allow OSHA to require prompt abatement of all serious 
hazards, even if the employer files a notice of contest. As Assistant 
Secretary Michaels' testimony explains in greater detail, this 
provision is crucial. Currently, if an employer contests a citation for 
any reason, abatement is not required until the Commission fully 
resolves the contest, so a dangerous condition can be allowed to exist 
through years of legal delays. This bill will prevent this travesty 
from recurring.
    I appreciate the opportunity to testify on this important 
legislation. As Secretary Solis said when this bill was introduced, 
there is a tremendous need for this legislation in order to save the 
lives and health of American workers, in mines and throughout the 
nation. I look forward to working with the Committee on this 
legislation as it moves forward and to responding to any questions you 
may have.
                                 ______
                                 
    Chairman Miller. Thank you.
    Secretary Michaels.

    STATEMENT OF HON. DAVID MICHAELS, ASSISTANT SECRETARY, 
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 
                            OF LABOR

    Mr. Michaels. Thank you, Chairman Miller, Ranking Member 
Kline, members of the committee.
    Every day in this country 14 workers are killed on the job. 
Every day we encounter employers who cut corners on the safety 
and health of their workers, children who lost parents or 
parents who have lost children from workplace injuries. Workers 
are fired for voicing health and safety concerns. Companies 
subject workers to known hazards while the courts spend years 
deciding contested citations, and our Nation's workplace 
protection agencies are plagued with outdated laws, tools and 
penalties that make it difficult to deter safety and health 
violations.
    During the time that I have been assistant secretary for 
OSHA, 54 workers have been killed in explosions at the Kleen 
Energy Power Plant in Connecticut, the Tesoro Refinery in 
Washington State, the Upper Big Branch Mine in West Virginia 
and on the Deepwater Horizon oil rig. We add their names to the 
long list of recent disasters, like the explosion at the BP 
refinery in Texas, the Sago and Darby mines in West Virginia 
and Kentucky, and the Imperial Sugar Plant in Georgia, where 
dozens of works were killed and hundreds more injured.
    But only disasters make national headlines. What is not 
widely publicized are the more than 5,000 other workers killed 
on the job in America each year. These tragedies happen in 
every corner of the country, usually one at a time, far from 
the evening news and the morning headlines.
    Secretary of Labor Hilda Solis's vision for the Department 
of Labor is good jobs for everyone. Good jobs are safe jobs, 
and we want to do more than make our Nation's workplaces safe.
    I, therefore, want to congratulate you, Mr. Chairman, and 
all the co-sponsors of the Miner Safety and Health Act for 
recognizing not only that the Nation's 350,000 miners 
desperately need better protection, but that this Nation's 135 
million workers who are covered by OSHA also need better more 
up-to-date protection. The Miner Safety and Health Act makes 
critical amendments to the Occupational Safety and Health Act, 
which has not been significantly updated in 40 years.
    This legislation would increase OSHA's civil and criminal 
penalties, enhance whistleblower protections and victims rights 
and give OSHA the authority to require abatement of serious 
hazards, even if and while the employer contests citations 
issued for them.
    These provisions are strongly supported by the Obama 
administration. Safe jobs exist only when employers have 
adequate incentives to comply with OSHA's requirements. When 
the employer's voluntary efforts are not enough. Swift, certain 
and meaningful penalties provide an important incentive to do 
the right thing.
    However, OSHA's current penalties are not large enough to 
provide adequate incentives, especially for large employers. As 
a result, unscrupulous employers often consider OSHA penalties 
the cost of doing business. It is more effective--more cost 
effective to pay the minimal OSHA penalty than to correct the 
underlying health and safety problem.
    The Miner Safety and Health Act makes much needed increases 
in OSHA's civil and criminal penalties. Nothing focuses 
attention like the possibility of going to prison. This bill 
would make it a felony with up to 10 years in prison when an 
employer knowingly violates an OSHA standard which causes or 
contributes to the death of any employee.
    Good jobs are also jobs where workers' voices are an 
essential part of the conversation about creating safe 
workplaces. Since OSHA cannot be at every workplace all the 
time, we rely heavily on workers to act as our eyes and ears in 
identifying hazards. If employees fear that they will lose 
their jobs or otherwise be retaliated against for participating 
in safety and health activities, they are not likely to do so.
    The OSHAct states the worker may not be retaliated against 
for reporting injuries, illnesses or unsafe conditions. 
Unfortunately, there are serious deficiencies in this law. The 
Miner Safety and Health Act doesn't protect workers who refuse 
to perform tasks they reasonably believe could result in 
serious injury or illness to themselves or to other employees. 
The Miner Safety and Health Act would also expand the rights of 
workers and victims' families, and establish a family liaison 
in each OSHA area office to keep victims informed of the status 
of investigations and enforcement actions, and to assist 
victims in asserting their rights. This will help our 
investigations, since victims and their families are often the 
source of useful information.
    One of the most significant changes that this legislation 
makes to the OSHAct is the provision that requires abatement of 
serious, willful, and repeat hazards during the contest period. 
Currently, if an employer contests an OSHA citation, that 
employer is not obligated to correct the hazard during the 
administrative contest period, leaving workers exposed to 
serious or deadly hazards for months or even years.
    The Miner Safety and Health Act would enable OSHA to issue 
failure to abate notices to a workplace with a citation under 
contest. It is important to note that this legislation also 
safeguards the rights of employers by allowing an accelerated 
appeal to the Occupational Safety and Health Review Commission.
    Mr. Chairman, in the months that I have been at OSHA, I 
have spoken with children, spouses and parents of workers who 
have been killed on the job. The one thing they ask for is for 
our laws to have the best possible protections to prevent more 
workers from leaving their loved ones behind.
    We applaud the important work this committee has done in 
drafting the Miner Safety and Health Act, and we look forward 
to working with you on it. Thank you for inviting me to 
testify. I am happy to answer your questions.
    [The statement of Mr. Michaels follows:]

   Prepared Statement of Hon. David Michaels, Ph.D., MPH, Assistant 
    Secretary, Occupational Safety and Health Administration, U.S. 
                          Department of Labor

    Chairman Miller, Ranking Member Kline, and Members of the 
Committee, thank you for the opportunity today to discuss the Miner 
Safety and Health Act of 2010, which would bring needed reforms to our 
nation's workplace health and safety laws. Every day in this country, 
14 workers are killed on the job. Every day we encounter employers who 
put profits above the safety of their workers, children who have lost 
parents, or parents who have lost children from workplace injuries. 
Workers are fired for voicing safety and health concerns, companies 
subject workers to known hazards while the courts spend years deciding 
contested citations, and our nation's workforce protection agencies are 
plagued with outdated laws, tools, and penalties that make it difficult 
to deter safety and health violations.
    Until 1970, there was no national guarantee that workers throughout 
America would be protected from workplace hazards. In that year the 
Congress enacted a powerful and far-reaching law--the Occupational 
Safety and Health Act of 1970 (OSH Act), which created the Occupational 
Safety and Health Administration (OSHA) and provided workers with the 
rights they needed to protect their safety and health on the job.
    But today, 40 years after the Act was passed, American workers 
continue to face unacceptable hazards on the job. And while these 
hazards and working conditions have changed significantly, the law has 
not been substantially modified in those 40 years.
    During the seven months I have been the Assistant Secretary of 
OSHA, explosions at the Kleen Energy power plant in Connecticut, the 
Tesoro refinery in Washington State, the Upper Big Branch mine in West 
Virginia, and on the Deepwater Horizon offshore oil drilling platform 
in the Gulf of Mexico have killed 54 workers. We add their names to a 
long list of recent disasters, like the explosions at the BP refinery 
in Texas, Sago and Darby mines in West Virginia and Kentucky, and the 
Imperial Sugar plant in Georgia that killed dozens of workers and 
injured hundreds more. But these are only the tragedies that make 
national headlines. What is not publicized are the more than 5,000 
other workers killed on the job in America each year, the more than 4 
million who are injured, and the thousands more who will become ill or 
die in later years from present day occupational exposures. Every day 
in this country we have a Sago mine disaster, every two days an Upper 
Big Branch, and every month the loss of a fully loaded Boeing 747. 
These tragedies happen in every corner of the country, usually one at a 
time, far from the evening news and the morning headlines.
    Secretary Solis' vision for the Department of Labor is ``Good Jobs 
for Everyone.'' Good jobs are safe jobs and we must do more to make our 
nation's workplaces safer. OSHA has already taken significant steps 
toward this goal. In April, the Labor Department released its Spring 
regulatory agenda which includes a new enforcement strategy--Plan/
Prevent/Protect--an effort designed to expand and strengthen worker 
protections through a new OSHA standard that would require not just the 
best employers, but every employer to implement an Injury and Illness 
Prevention Program tailored to the actual hazards in that employer's 
workplace. Instead of waiting for an OSHA inspection or a workplace 
accident to address workplace hazards, employers would be required to 
create a plan for identifying and remediating hazards, and then to 
implement this plan.
    Essentially, through this common sense rule, also known as ``Find 
and Fix,'' we will be asking employers to find the safety and health 
hazards present in their facilities that might injure or kill workers 
and then fix those hazards. Workers, those who are most directly at 
risk, would participate in developing and implementing these workplace 
safety plans and evaluating their effectiveness in achieving 
compliance.
    While we believe this enforcement strategy will go a long way 
toward eliminating the ``catch me if you can'' mindset prevalent in 
corporate America, the workplaces of 2010 are not those of 1970 and the 
OSH Act, which has remained stagnant for 40 years, must be brought into 
the 21st century to ensure OSHA has the tools and authority to prevent 
safety and health violations.
    I therefore greatly appreciate the work of this Committee in 
proposing legislation that would significantly increase OSHA's ability 
to help protect American workers. I want to congratulate you, Mr. 
Chairman, Congresswoman Woolsey and other cosponsors of the Miner 
Safety and Health Act for recognizing not only that the nation's 
350,000 miners desperately need better protections to prevent any more 
Sago or Upper Big Branch disasters, but that this nation's 135 million 
workers in general industry who are covered by OSHA also need better, 
more up-to-date protections. Clearly, whether a worker leaves home in 
the morning on his way to a mine or on her way to a refinery or 
construction site, every worker needs and deserves equally effective 
protections.
    Title VII of the Miner Safety and Health Act provides critical 
amendments to the OSH Act that would increase OSHA's civil and criminal 
penalties, enhance whistleblower protections and victims' rights, and 
give OSHA the authority to require abatement of serious hazards even if 
and while the employer contests citations issued for them. These 
provisions, strongly supported by the Labor Department and endorsed by 
the Obama Administration, would enable OSHA to more effectively 
accomplish its mission to ``assure safe and healthful working 
conditions for working men and women.''
    Because OSHA can visit only a limited number of workplaces each 
year, we need a stronger OSH Act to leverage our resources to encourage 
compliance by employers. We need to make employers who ignore real 
hazards to their workers' safety and health think again. Federal OSHA 
and state plans combined have just over 2,200 inspectors, which 
translates to about one compliance officer for every 60,000 workers. 
OSHA needs more modern tools to ensure that employers are safeguarding 
the safety and health in our country's almost 9 million workplaces.
    Today, my testimony will focus on the Title VII provisions of the 
Miner Safety and Health Act, which address significant weaknesses in 
current OSHA law, and how this legislation would address those problems 
by bringing OSHA into the 21st century.
    Safe jobs exist only when employers have adequate incentives to 
comply with OSHA's requirements. Those incentives are affected, in 
turn, by both the magnitude and the likelihood of penalties. Swift, 
certain and meaningful penalties provide an important incentive to ``do 
the right thing.'' However, OSHA's current penalties are not large 
enough to provide adequate incentives, especially for large employers. 
Currently, serious violations--those that pose a substantial 
probability of death or serious physical harm to workers--are subject 
to a maximum civil penalty of only $7,000. Let me emphasize that--a 
violation that causes a ``substantial probability of death--or serious 
physical harm'' brings a maximum penalty of only $7,000. Willful and 
repeated violations carry a maximum penalty of only $70,000.
    Congress has increased the OSH Act's monetary penalties only once 
in 40 years despite inflation during that period. Unscrupulous 
employers often consider it more cost effective to pay the minimal OSHA 
penalty and continue to operate an unsafe workplace than to correct the 
underlying health and safety problem. The current penalties do not 
provide an adequate deterrent. This is apparent when OSHA penalties are 
compared with penalties that other agencies are allowed to assess.
    For example, in 2001 a tank full of sulfuric acid exploded at an 
oil refinery in Delaware, killing Jeff Davis, a worker at the refinery. 
His body literally dissolved in the acid. The OSHA penalty was only 
$175,000. Yet, in the same incident, thousands of dead fish and crabs 
were discovered, allowing EPA to assess a $10 million penalty for 
violating the Clean Water Act. How do we explain to Jeff Davis' wife 
Mary, and their five children, that the penalty for killing fish and 
crabs is so much higher than the penalty for killing their husband and 
father?
    Other examples abound. The Department of Agriculture is authorized 
to impose a fine of up to $140,000 on milk processors for willful 
violations of the Fluid Milk Promotion Act, which include refusal to 
pay fees and assessments to help advertise and research fluid milk 
products. The Federal Communications Commission can fine a TV or radio 
station up to $325,000 when a performer curses on air. The 
Environmental Protection Agency can impose a penalty of $270,000 for 
violations of the Clean Air Act and a penalty of $1 million for 
attempting to tamper with a public water system. Yet, the maximum civil 
penalty OSHA may impose when a hard-working man or woman is killed on 
the job--even when the death is caused by a willful violation of an 
OSHA requirement--is $70,000.
    The Miner Safety and Health Act makes much needed increases in both 
civil and criminal penalties for every type of violation of the OSH Act 
and would increase penalties for willful or repeat violations that 
involve a fatality to as much as $250,000. These increases are 
necessary to create at least the same deterrent that Congress 
originally intended when it passed the OSH Act. Simply put, OSHA 
penalties must be increased to provide a real disincentive for 
employers not to accept worker injuries and deaths as a cost of doing 
business.
    Unlike most other Federal enforcement laws, the OSH Act has been 
exempt from the Federal Civil Penalties Inflation Adjustment Act, so 
there have not even been increases in OSHA penalties for inflation. 
This has reduced the real dollar value of OSHA penalties by close to 
40%. In order to ensure that the effect of the newly increased 
penalties does not degrade in the same way, the Miner Safety and Health 
Act also provides for inflation adjustments for civil penalties based 
on increases or decreases in the Consumer Price Index (CPI).
    Criminal penalties in the OSH Act are also inadequate for deterring 
criminal wrongdoing. Under the OSH Act, criminal penalties are limited 
to those cases where a willful violation of an OSHA standard results in 
the death of a worker and to cases of false statements or 
misrepresentations. The maximum period of incarceration upon conviction 
for a violation that costs a worker's life is six months in jail, 
making these willful crimes a misdemeanor.
    The criminal penalty provisions of the OSH Act have not been 
updated since the law was enacted and are weaker than virtually every 
other safety and health or environmental law. The Clean Air Act, the 
Clean Water Act, and the Resource Conservation and Recovery Act all 
provide for criminal prosecution for knowing violations of the law, and 
for knowing endangerment that places a person in imminent danger of 
death or serious bodily harm, with penalties of up to 15 years in jail. 
There is no prerequisite in these laws for a death or serious injury to 
occur. Other federal laws provide for a 20-year maximum jail sentence 
for dealing with counterfeit obligations or money, or mail fraud; and 
for a life sentence for operating certain types of criminal financial 
enterprises. It defies logic that serious violations of the OSH Act 
that result in death or serious bodily injury are treated as lesser 
crimes than insider trading, tax crimes, customs violations and anti-
trust violations.
    It is clear that nothing focuses attention like the possibility of 
going to prison. Unscrupulous employers who knowingly refuse to comply 
with safety and health standards as an economic calculus, and cause the 
death or serious injury of a worker, will think again if there is a 
chance that they will be incarcerated for ignoring their 
responsibilities.
    The Miner Safety and Health Act would amend the criminal provisions 
of the OSH Act, as it would also amend the Federal Mine Safety and 
Health Act, to change the burden of proof from ``willfully'' to 
``knowingly.'' Specifically, Section 706 states that any employer who 
``knowingly'' violates any standard, rule, or order and that violation 
caused or contributed to the death of any employee is subject to a fine 
and not more than 10 years in prison. Most federal environmental crimes 
and most federal regulatory crime use ``knowingly,'' rather than 
``willfully.'' This would ease the burden on prosecutors by harmonizing 
these worker safety provisions with similar (or comparable or 
analogous) crimes.
    In the 1980s, we saw in Texas and California that aggressive 
criminal law enforcement procedures improved occupational safety and 
health. In Texas, the number of trenching fatalities dropped 
dramatically when one county adopted a well-publicized criminal 
prosecution effort. Los Angeles County California also mounted an 
effective criminal prosecution program during those years. In addition, 
OSHA continues to work with New York State's prosecutors on similar 
prosecutions, even as recently as the Deutsche Bank case. The Committee 
has wisely included a provision stating that nothing in the Act shall 
preclude a state or local law enforcement agency from conducting 
criminal prosecutions in accordance with its own laws.
    Good jobs are also jobs where workers' voices are an essential part 
of the conversation about creating safe workplaces. As my colleague 
Assistant Secretary Joe Main has testified, this Committee heard 
powerful testimony from the mining community at its field hearing in 
Beckley, West Virginia about how important it is for miners to be able 
to come forward and report dangerous conditions in the mine before 
tragedy strikes. It is equally important that workers in other 
dangerous industries, like oil refineries, chemical plants, and 
construction, feel that same security in coming forward.
    The OSH Act was one of the first safety and health laws to contain 
a provision--11(c)--for protecting employees from discrimination and 
retaliation when they report safety and health hazards or exercise 
other rights under the OSH Act. Since OSHA cannot be at every workplace 
at all times, we rely heavily on workers to act as OSHA's ``eyes and 
ears'' in identifying hazards at their workplaces. This protection is 
fundamental to OSHA's ability to safeguard the workforce. If employees 
fear that they will lose their jobs or otherwise be retaliated against 
for actively participating in safety and health activities, they are 
not likely to do so.
    OSHA's 11(c) provision is now 40 years old and is one of the 
weakest whistleblower provisions in any federal law. Last April you 
heard from a worker whose discrimination claim was upheld by OSHA, but 
because of weaknesses in the law, the case was never carried forward to 
litigation. At that hearing, Deputy Assistant Secretary Jordan Barab 
testified that he was outraged that in the year 2010, workers in this 
country still fear being fired or disciplined for exercising their 
rights.
    The Miner Safety and Health Act strengthens whistleblower 
protections for workers in both mining and general industries. It makes 
explicit that a worker may not be retaliated against for reporting 
injuries, illnesses or unsafe conditions to employers or to a safety 
and health committee, or for refusing to perform a task that the worker 
reasonably believes could result in serious injury or illness to the 
worker or to other employees.
    Additionally, the Act increases the existing 30-day deadline for 
filing an 11(c) complaint to 180 days, bringing 11(c) more in line with 
most of the other whistleblower statutes enforced by OSHA. Over the 
years many complainants who might otherwise have had a strong case of 
retaliation have been denied protection simply because they did not 
file within the 30-day deadline.
    The Miner Safety and Health Act's adoption of the ``contributing 
factor'' test for determining when illegal retaliation has occurred is 
also a significant improvement in 11(c). The Act would employ this same 
test for whistleblower complaints in the mining industry as well, 
making both 11(c) and the Federal Mine Safety and Health Act consistent 
with other whistleblower statutes enacted since 1989, when the 
``contributing factor'' scheme was introduced. This would enhance the 
protections afforded to America's workers and improve workplace safety 
and health.
    The private right to enforce an order is another key element of 
whistleblower protections in the Miner Safety and Health Act, and has 
been included in most other whistleblower statutes enforced by OSHA. It 
is critically important that if an employer fails to comply with an 
order providing relief, either DOL or the complainant be able to file a 
civil action for enforcement in a U.S. District Court.
    The Miner Safety and Health Act also allows complainants or 
employers to move their cases to the next stage in the administrative 
or judicial process if the reviewing entities do not make prompt 
decisions or rulings. For example, the Act would allow complainants to 
``kick out'' to a hearing before an Administrative Law Judge (ALJ) if 
the Secretary has not issued a decision within 120 days from the case 
filing, and to district court if an ALJ or the ARB has not issued a 
decision within their 90-day time limits.
    These legislative changes in the whistleblower provisions are a 
long-overdue response to deficiencies that have become apparent over 
the past four decades. In addition, the Miner Safety and Health Act 
amends section 17(j) of the OSH Act to include an employer's history of 
violations of section 11(c) as a consideration in assessing civil 
penalties. This is also a long overdue change that underscores the 
importance of preventing the chilling effect of retaliation on workers.
    The Miner Safety and Health Act also includes a section that would 
expand the rights of workers and victims' families. No one is affected 
more by a workplace tragedy than workers and their families, so we 
fully recognize and embrace their desire to be involved in the remedial 
process. Family members also provide useful information to OSHA 
inspectors about the culture and environment of a workplace and the 
events leading up to an incident that results in serious injury or 
death. The moving testimony of the families of the Upper Big Branch 
miners before this Committee in May and Jodi Thomas's testimony on the 
Kleen Energy explosion last month demonstrate how much family members 
have to offer MSHA and OSHA.
    Although it is OSHA's policy to talk to families during the 
investigation process and inform them about our citation procedures and 
settlements, we have found that some of these policies are not always 
applied consistently. The Miner Safety and Health Act would help us in 
this area by placing into law, for the first time, the right of a 
victim (injured employee or family member) to meet with OSHA, to 
receive copies of the citation at no cost, to be informed of any notice 
of contest, and to appear and make a statement during settlement 
negotiations before an agreement is made to withdraw or modify a 
citation.
    The Act also requires the Secretary to designate at least one 
employee at each OSHA area office to serve as a family liaison, similar 
to the program already in existence at MSHA. The OSHA family liaisons 
would keep victims informed of the status of investigations, 
enforcement actions, and settlement negotiations, and assist victims in 
asserting their rights. As we have seen at MSHA, the family liaisons 
have effectively enhanced victims' rights and involvement in the 
enforcement process. The last thing we want is to repeat situations 
when family members, like Miss Tonya Ford who testified before this 
Committee in April, find out about the tragic circumstances of their 
loved one's death from the media and not from OSHA. In addition to the 
helpful fixes in the Act, OSHA is also working administratively to 
incorporate suggestions we have received from victims on how to improve 
our enforcement process and better involve victims and their families.
    One of the most significant changes that the Miner Safety and 
Health Act makes to the OSH Act is the provision that requires 
abatement of serious, willful, and repeat hazards during the contest 
period. Currently, if an employer contests an OSHA citation, that 
employer is not obligated to correct the hazard during the 
administrative contest period leaving workers exposed to serious or 
deadly hazards for months or years after the hazards have been 
identified.
    The lack of any requirement for employers to abate hazards during 
the contest period also seriously undermines the effectiveness of 
OSHA's already low penalties. Largely because OSHA is pressured to 
negotiate away penalties in order to avoid employer contests and ensure 
that hazards are quickly fixed, the average current OSHA penalty is 
only around $1,000. The median initial penalty proposed for all 
investigations conducted in FY2007 of cases where a worker was killed 
was just $5,900. Clearly, OSHA can never put a price on a worker's life 
and that is not the purpose of penalties--even in fatality cases. OSHA 
must, however, be empowered to send a stronger message in cases where a 
life is needlessly lost than the message that a $5,900 penalty sends. 
By giving OSHA the authority to require abatement during contest, we 
not only ensure that workers are protected immediately but also can 
hold employers accountable for keeping a safe and healthful workplace. 
We must not forget that the stronger the message OSHA sends, the better 
the deterrence and more lives are saved.
    The Miner Safety and Health Act would enable OSHA to issue failure 
to abate notices to a workplace with a citation under contest, which 
would carry a penalty of up to $7,000 for each day the hazard goes 
uncorrected. This provision would greatly strengthen the right of 
workers in general industry to be protected from the most egregious 
workplace hazards.
    OSHA believes this protection is critical. Too often hazards remain 
uncorrected because of lengthy contest proceedings--periods that can 
last a decade or more. A recent OSHA analysis found that between FY 
1999 and FY 2009, there were 33 contested cases that had a subsequent 
fatality at the same site prior to the issuance of a final order.
    This is not the first time that this issue has been before 
Congress. During hearings on comprehensive OSHA reform in the 102nd and 
103rd Congresses, numerous examples were presented of employees being 
hurt or killed while an inspection was under contest. While those 
opposing this provision argued that employers would needlessly spend 
large sums on abatement for a citation that is later overturned, 
business representatives testified that even when there is a contest 
most employers abate hazards during the review process.
    Additionally, the State of Oregon, which operates its own safety 
and health program, requires abatement during contest for serious 
violations. This provision was included in Oregon's original statute 
and has not been revised since 1977. Although attorneys have objected 
in State legislative hearings on due process grounds, there have been 
no court challenges of this provision
    It is also important to note that the Miner Safety and Health Act 
guards the rights of employers by allowing an appeal to the 
Occupational Safety and Health Review Commission (OSHRC) regarding the 
requirement to abate during contest.
    MSHA has long had a similar provision under its current law. It is 
now time that we protect general industry workers from known hazards 
during contest, that are just as deadly, as we do for miners.
    Based on the long experience with this provision under the Mine 
Act, the GAO recommended that Congress require protection of workers 
during contests. Similarly, various environmental statutes also require 
that violations be corrected when they are identified. In weighing the 
balance between employee protection and employer contest rights, it 
seems clear that employee safety should take precedence.
    Mr. Chairman, an essential element of achieving Secretary Solis's 
goal of good jobs for everyone is to change the culture of safety in 
the American workplace. Under both the OSH Act and the Mine Act, 
employers are legally and morally responsible for the safety and health 
of their workers. The important reforms in the Miner Safety and Health 
Act go far in encouraging employers to accept this responsibility and 
giving OSHA and MSHA the tools we need to deal with employers who 
refuse.
    In the months I have been at OSHA, I have spoken with children, 
spouses and parents of workers who have been killed on the job. They do 
not care about the specifics of the legislative process or the details 
of how one law compares with another. The only thing they want; the 
only thing they ask you to do is pass laws that contain the best 
possible protections, that prevent any other workers--whether mine 
workers, refinery workers, construction workers, or hospital workers--
from losing their lives, from leaving their loved ones behind. We know 
we can provide these workers with better protections. We know we can 
prevent many of these deaths, injuries and illnesses. In a civilized 
society, this level of death and injury on the job is simply too high a 
price to pay, especially when we have it within our means to prevent 
them.
    We applaud the important work this Committee has done in drafting 
the Miner Safety and Health Act, and we look forward to working with 
you on this legislation as it advances through the legislative process. 
Thank you again for the opportunity to testify today. I am happy to 
answer your questions.
                                 ______
                                 
    Chairman Miller. Thank you very much.
    Thank you, again, all of you, for your testimony.
    When I first came to Congress, we had the Scotia Coal Mine 
disaster back in March of 1976.
    Joe, you and I have been at this about as long as anybody 
around here.
    And I was taken back this weekend looking at the report on 
the Scotia mine. The report said that, from 1970 to 1976, the 
Scotia mine had been ordered closed 110 separate times; 39 
times for imminent danger conditions. During this same period, 
some 855 notices for Federal health and safety violations were 
issued against the company. In the period of January 1974 to 
February 1976, the mine had been cited for 63 separate 
violations of Federal ventilation and methane standards. It was 
that explosion that killed 26 miners. And mine inspectors, I 
think, were included in that tragedy with the loss of life.
    [The House Committee on Education and Labor, Subcommittee 
on Labor Standards staff report, ``Scotia Coal Mine Disaster,'' 
October 15, 1976, is excerpted on the following pages. To see 
the original report in its entirety, please access the 
following Internet address:]

       http://www.access.gpo.gov/congress/house/house06cp111.html

                                 ______
                                 

                           [COMMITTEE PRINT]

                       SCOTIA COAL MINE DISASTER

                                ------                                


                          MARCH 9 AND 11, 1976

                                ------                                


                             A STAFF REPORT




                                ------                                


                    U.S. GOVERNMENT PRINTING OFFICE
                           WASHINGTON : 1976

    77&245
                    COMMITTEE ON EDUCATION AND LABOR

                  CARL D. PERKINS, Kentucky, Chairman




FRANK THOMPSON, Jr, New Jersey                           ALBERT H. QUIE, Minnesota
JOHN H. DENT, Pennsylvania                               JOHN M. ASHBROOK, Ohio
DOMINICK V. DANIELS, New Jersey                          ALPHONZO BELL, California
JOHN BRADEMAS, Indiana                                   JOHN N. ERLENBORN, Illinois
JAMES G. O'HARA, Michigan                                PETER A. PEYSER, New York
AUGUSTUS F. HAWKINS, California                          EDWIN D. ESHLEMAN, Pennsylvania
WILLIAM D. FORD, Michigan                                PETER A. PEYSER, New York
PATSY T. MINK, Hawaii (on leave)                         RONALD A. SARASIN, Connecticut
LLOYD MEEDS, Washington                                  JOHN BUCHANAN, Alabama
PHILLIP BURTON, California                               JAMES M. JEFFORDS, Vermont
JOSEPH M. GAYDOS, Pennsylvania                           LARRY PRESSLER, South Dakota
WILLIAM ``BILL'' CLAY, Missouri                          WILLIAM F. GOODLING, Pennsylvania
SHIRLEY CHISHOLM, New York                               VIRGINIA SMITH, Nebraska
MARIO BIAGGI, New York
IKE ANDREWS, North Carolina
WILLIAM LEHMAN, Florida
JAIME BENITEZ, Puerto Rico
MICHAEL BLOUIN, Iowa
ROBERT CORNELL, Wisconsin
PAUL SIMON, Illinois
EDWARD BEARD, Rhode Island
LEO ZEFERETTI, New York
GEORGE MILLER, California
RONALD MOTTL, Ohio
TIM HALL, Illinois



                    Subcommittee on Labor Standards

                  JOHN H. DENT, Pennsylvania, Chairman




DOMINICK V. DANIELS, New Jersey            JOHN N. ERLENBORN, Illinois
PHILLIP BURTON, California                 RONALD A. SARASIN, Connecticut
JOSEPH M. GAYDOS, Pennsylvania             JOHN M. ASHBROOK, Ohio
WILLIAM ``BILL'' CLAY, Missouri            ALPHONZO BELL, California
MARIO BIAGGI, New York                     WILLIAM F. GOODLING, Pennsylvania
JAIME BENITEZ, Puerto Rico                 ALBERT H. QUIE, Minnesota,
LEO ZEFERETTI, New York                                    Ex Officio
GEORGE MILLER, California
ROBERT CORNELL, Wisconsin
PAUL SIMON, Illinois
CARL D. PERKINS, Kentucky,
  Ex Officio



                                  (ii)

             *          *          *          *          *


                        Introduction and Summary

    On March 9, 1976, at 11:35 A.M., dangerous concentrations 
of methane gas accumulated in a poorly ventilated section of 
the Scotia Coal Mine and was ignited by an unknown source. The 
coal mine explosion that resulted killed 15 miners. Again, on 
March 11, 1976, at about 11:20 P.M., the same conditions 
combined in the same section of the Scotia mine to cause a 
second explosion in which another 11 men died. Thus, within a 
60-hour period, 26 men lost their lives in the bowels of the 
Scotia coal mine, located near Oven Fork, in Eastern Kentucky. 
As of this date, the bodies of the 11 men killed in the second 
explosion remain entombed in the mine.
    Why did Scotia happen? This same question was asked of the 
Farmington disaster in 1968 which claimed the lives of 78 coal 
miners; the Hyden disaster of 1970 which killed 38 miners; and 
the Itmann and Blackville disasters of 1972 in which 14 died.
    In 1969, the U.S. Congress responded to the Farmington 
disaster by enacting the Federal Coal Mine Health and Safety 
Act, which is, perhaps, the strongest such law in the world. 
Since the passage of the Federal Coal Mine Health and Safety 
Act of 1969, over 1,000 coal miners have died in mine 
explosions, roof falls, and other coal mine accidents.
    Why did Scotia happen? Since the disaster, the House 
Education and Labor Committee, under the direction of Chairman 
Carl Perkins and Labor Standards Subcommittee Chairman John H. 
Dent, has been searching for answers and insights into the 
Scotia tragedy. In conjunction with the Senate Committee on 
Labor and Public Welfare, the Committee held three days of 
public hearings in Washington, D.C. and Whitesburg, Kentucky. 
The Committee heard from Scotia widows, miners, company 
officials, outside professionals, and Federal Government 
officials. The Committee and its staff reviewed thousands of 
pages of testimony, conducted individual interviews, and 
analyzed mine inspection reports and other related documents.
    In order to inform the full Committee, and the public at-
large, as to what has been learned thus far about the Scotia 
disaster, Mr. Perkins and Mr. Dent instructed the staff to 
prepare this report. The views contained herein are those of 
the majority staff, and do not necessarily represent those of 
the Committee.
    Why did Scotia happen? While all the causal factors related 
to the disaster have yet to be conclusively determined, the 
available evidence strongly supports the following conclusions:
          1. The Scotia Coal Company, in effect, ignored the 
        requirements of the Federal Coal Mine Health and Safety 
        Act, its standards and administrative regulations;

                                  (1)
          2. The Mining Enforcement and Safety Administration 
        (MESA) failed to effectively enforce the Federal Coal 
        Mine Health and Safety Act at the mine;
          3. Ultimate responsibility for the first explosion of 
        March 9, 1976, rests with the Scotia Coal Company, but 
        responsibility for the second explosion of March 11, 
        1976, must, in the staff's opinion, rest with MESA.
    The Scotia Coal Mine, near Oven Fork, Kentucky, was known 
as one of the most dangerous mines in the United States and the 
most gassy mine in Eastern Kentucky. In addition, the Scotia 
mine had a long and chronic history of Federal coal mine health 
and safety violations. From 1970 to 1976, the Scotia mine had 
been ordered closed 110 separate times--39 times for imminent 
danger conditions. During this same period, some 855 notices 
for Federal health and safety violations had been issued 
against the company. In the period January 1974 to February 
1976, the mine had been cited for 63 separate violations of 
Federal ventilation and methane standards.
    In addition, the record contains evidence that:
         The Scotia mine's ventilation plan was 
        regularly violated and, at the time of the first 
        explosion, Scotia was in violation of its ventilation 
        plan;
         At various times, methane readings taken by 
        the company officials had registered as high as 9 
        percent;
         The required 20 minute methane monitoring 
        regulation was repeatedly violated and seldom adhered 
        to at the Scotia mine;
         Required preshift mine inspections for 
        hazardous ventilation, methane and other conditions 
        were not regularly conducted at the Scotia mine: 
        preshift inspection reports were routinely falsified; 
        and the section of the mine which exploded had not been 
        inspected prior to the shift in which the first 
        explosion occurred;
         A methane gas feeder which measured at least 5 
        percent had existed in that section of the mine which 
        exploded;
         The company's safety education and training 
        program was a sham, and no one, including the company's 
        safety inspector, could remember the last time a fire 
        or mine evacuation drill had been conducted at the 
        Scotia mine. Six of the 15 miners killed in the first 
        explosion suffocated to death.
    From the record, it is clear that the Scotia mine was a bad 
mine, a dangerous mine, a mine with a long and chronic history 
of health and safety violations. It was a mine which in our 
opinion placed production and profit before the safety and 
health of its miners. It was a mine which essentially ignored 
the law.

             *          *          *          *          *

                                Chart A

         SCOTIA COAL MINE--SUMMARY OF VIOLATION NOTICES AND CLOSURE ORDERS, MAY 13, 1970 TO MAR. 9, 1976
----------------------------------------------------------------------------------------------------------------
                                                           1970    1971    1972    1973    1974    1975    1976
----------------------------------------------------------------------------------------------------------------
Total number of violation notices issued................      79      94     156     116     103     214      92
Total number of closure orders issued...................       6      23      13      24      18      23       3
Total number of 104(a) closure orders issued (imminent         5       7       4       9       5       9       0
 danger)................................................
Total number of violation notices and closure orders....      85     117     169     140     121     237      95
----------------------------------------------------------------------------------------------------------------
Source: Mine Safety Enforcement Administration, U.S. Department of the Interior.

                                Chart B

 SCOTIA COAL MINE--SUMMARY OF SAFETY AND HEALTH VIOLATIONS, JANUARY 1974
                            to FEBRUARY 1976
------------------------------------------------------------------------
                                                     Total number of--
                                                 -----------------------
              Category of violation                             Closure
                                                  Violations    orders
------------------------------------------------------------------------
Ventilation--30 CFR, pt. 75, subpt. D...........          63          10
Electrical equipment general--30 CFR, pt. 75,             41           1
 subpt. F.......................................
Combustible materials and rock dusting--30 CFR,           86           8
 pt. 75, subpt. F...............................
Fire protection--30 CFR, pt. 75, subpt. L.......          53           3
Dust standards--30 CFR, pt. 70, subpt. B........          28           0
Trailing cables and grounding--30 CFR, pt. 75,            10           3
 subpts. G and H................................
Miscellaneous--30 CFR, pt. 75, subpt. R.........          71           4
Roof support--30 CFR, pt. 75, subpt. C..........          23           7
Mandatory safety standards, surface coal mines            28           2
 and surface work areas of underground coal
 mines--30 CFR, pt. 77..........................
Maps, hoisting and mantrips--30 CFR, pt. 75,              17           1
 subpts. M and O................................
                                                 -----------------------
      Total.....................................         420          39
------------------------------------------------------------------------
Source of data: Senate Subcommittee on Labor--Staff Study.

                                Chart C

     Scotia Coal Mine--Summary of ventilation violations, January 
                           1974&February 1976

                               Total number of times violation was cited
    Description of violation

Not enough air reaching the working face..........................    26
High methane concentration........................................     7
Approved ventilation plan not being followed......................    18
Line brattice out of position.....................................     6
Methane monitor inoperative.......................................     3
Permanent stopping was installed with incombustible material......     1
Water sprays not provided for the head drive......................     1
Fans at new returns section not equipped with a pressure gage and 
    an automatic signal device to give alarm......................     1
Tests for methane were not being taken at 20-minute intervals.....     1
Permanent brattices had not been constructed......................     2
Lost coal and coal dust...........................................     1

    Source: Mining Enforcement and Safety Administration, U.S. 
Department of Interior.

             *          *          *          *          *

                                ------                                

    Chairman Miller. And the report goes on, and obviously, one 
of the responses was the idea of changing the OSHA laws, or the 
MSHA laws, and going to a pattern of violation. And now 33 
years later, we see essentially the same problem of violations 
after violations, citations after citations, dangerous and 
hazardous working conditions repeatedly created through the 
operation of mines and now culminating with the loss of 29 
miners.
    I think that makes a rather compelling case. It will make 
it for different reasons from different sides of the aisle. I 
think that the fact of the matter is, the current law isn't 
working, and the pattern of violations that existed then were 
exceeded even by the Massey mine here and the closures. I mean, 
it was closed--54 times this mine was closed. At what point 
does the benefit of the doubt go to the miner?
    And I think when we look at the changes that we are seeking 
to make, it is about not only empowering the miner, but also 
giving the miner, if you will, the edge on a safe workplace. 
Right now, the edge is against the miner. The edge clearly 
works against the miner because the process is so cumbersome or 
so threatening to the miner that the miner never gets a level 
playing field to discuss what might be wrong.
    As we heard when we were in Beckley, you can lose your job. 
You can lose your shift work. You can lose your overtime. You 
can lose all sorts of events within the mine. And so we go from 
1976 to today, and we are in the same predicament that we were 
in 1976. Now, clearly, as we documented last year, there has 
been a gaming of the existing system. I don't know if it had 
been allowed to operate on the level, whether it would have 
been better, but it hasn't, and now the same people who have 
been gaming it are suggesting that we shouldn't make any 
changes so they can continue to game it, and they will do 
something better in lieu of it.
    Joe, I would just like your comments. You have watched this 
expanding of disasters and violations and closures. I mean, 
this is not a record to be proud of as a country.
    Mr. Main. I began representing miners when I was about 19 
years old and spent a lifetime doing that to improve mine 
safety in this country. And I have looked pretty hard where we 
are today and where we came over the years. And there are a 
number of things that I think are just so compelling that we 
have to fix here.
    I think that the folks who were in Congress when it passed 
the 1977 law would be more than highly disappointed to find out 
that 33 years later, not one mine had ever been placed on the 
enforcement action of pattern of violations that they sought.
    The recent problems we have identified with the pattern of 
violation I think pales compared to the bigger problem here in 
the computer glitch that occurred in the policy of how mines 
are selected for the pattern in terms of a policy by district. 
I think those are just small parts of a larger problem.
    And I am starting off with the fact that I think the 
pattern of violations is one thing that we have to fix in this 
legislation, and we have to do it in a way that a Federal 
agency will actually implement it, unlike the Federal agencies 
over the past 33 years. As a starting point, I think that is 
something we have to fix.
    Chairman Miller. Thank you.
    Secretary Michaels, you in your testimony endorse the 
provision that requires employers to correct hazards which 
would cause serious bodily injury or death while employers are 
contesting the claims from the OSHA review commission. Would 
you provide some examples and why this is necessary?
    Mr. Michaels. Yes. The way the OSHA law works currently is 
that if an employer decides to contest the violation, they 
don't have to abate the problem until the contest is over. Now, 
most--it is worth noting that most contests are about the 
penalty. Employers don't like the penalty; they would like to 
contest it.
    The second most about the classification, is it willful or 
not?
    But the third most important is they don't want to abate 
the hazard or they don't agree with the abatement. So, in the 
period that--in between the end of the contest period, 
essentially the adjudication, nothing is done. We had a 
situation, for example, in 2007 where OSHA cited a company in 
Ohio, Republic Engineered Products, for not providing fall 
hazards ranging from 7 feet to 31 feet. And there was a 
contest. The employer contested this. Less than a year later, 
in February 2008, while this contest was still going on, a 
supervisor broke his pelvis when he fell from 13 feet from an 
unguarded location.
    OSHA felt--you know, we went in and issued new citations 
about not protecting people from fall hazards. But the first 
violations hadn't been abated yet. And that is the sort of 
problem we are trying to deal with here. When we see a problem, 
we think it should be fixed immediately.
    Now, this bill provides, as I said, protection for 
employers. They can ask for an immediate hearing, an 
accelerated hearing, in front of the review commission. If they 
really don't believe the problem exists, then we can adjudicate 
it quickly. But we can't let workers wait for months or even 
years unprotected until that contest is over.
    Chairman Miller. Thank you.
    Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    Again, thanks to the witnesses for being here and for their 
testimony.
    Secretary Main, I wanted to thank you for your prompt 
response to my letter. I sent you a letter with some questions 
dated July 1st. You responded with a letter dated July 9th. It 
is not always that we get that sort of responsiveness from 
members of this administration or any other. So thank you very 
much.
    In your response, picking up on the issue of the pattern of 
violation, you expressed a frustration in the letter that I 
think I just heard here. You said, plans, I am quoting, ``plans 
for a new POV process have been under way for many months prior 
to the IG's alert memorandum. I have identified the POV program 
as requiring evaluation and modification shortly after taking 
office,'' and so forth. And it seems to me that on both sides 
of the aisle here there is agreement that the pattern of 
violation issue needs to be addressed.
    So, again, I just want to thank you for getting back. We 
will be staying in touch with you as we go forward.
    Solicitor Smith, and in fact, all of you talked about 
felonies, the fact that this law now has a lot of felonies. In 
virtually every section, there is a new felony. And perhaps 
increased penalties should be part of this. But I am a little 
bit concerned that we may be overreaching in a couple of places 
and get some unintended consequences.
    Secretary Main, one of the new felonies is associated with 
the advance notice of a mine inspection, as I read it, and 
certainly, I think the Chairman's language and our discussions 
would recognize that we don't want somebody to send out the 
alert and have people cover up before the inspectors get there.
    On the other hand, it seems to me the way the language is 
now that you might have somebody just arranging for a union 
representative to accompany the inspector, arranging for 
transportation or something of that nature. I wouldn't think we 
would want that to be a felony. Do you see any problem with 
that language or just hang them high?
    Mr. Main. Well, I think the intent here is to hold 
accountable those who give advance notice of an inspection that 
would have its purpose to be to provide some ability for the 
enforcement action.
    Mr. Kline. Exactly. So let me interrupt because I am 
running out of time. So we want to be careful in language if we 
are going to make a law here and put it in statute that we be 
careful that we are going after the person who is doing this 
for the purpose of impeding the investigation and not for some 
other purpose. We don't want to make everybody a felon.
    Mr. Main. I think it is in our interest to make sure that 
we have a provision in place that changes the culture that 
exists today of advance notice being provided to a mine that 
undercuts the ability of the law to be enforced and miners to 
be protected.
    Mr. Kline. Moving to another subject before I run out of 
time, it was mentioned that, for the first time, we are going 
to provide a statutory definition of significant and 
substantial. And I think Solicitor Smith, in fact, mentioned 
that. Eliminate the current four-prong test and so forth.
    My question is, have we--and I guess this will probably be 
in your domain, again Secretary Main. Have you looked at what 
sort of percentage of violations would be S&S under this? I 
mean, currently now, according to the number I have here in 
front of me, it is about 36 percent of the citations are 
designated significant and substantial. And I have heard some, 
you know, sort of back-of-the-envelope calculations here that 
say we might go upwards of 90 percent. Have you looked at that? 
Do you have any idea? And if--if--this number jumps to that 
sort of percentage, wouldn't that cause you to lose focus with 
your resources and conditions that are supposed to be focused 
at these really egregious violations that threaten miner safety 
and health? Have you looked at that yet?
    Solicitor Smith, do you have the answer to that?
    Ms. Smith. We have looked at it and thought about it. I 
can't give you any statistics because we are not able to do an 
advance. But one of the things that we have been thinking about 
quite seriously is an increase in the contest rate. And we 
think that there are many provisions in this bill that will 
actually decrease the contest rate. I think this definition is 
a simpler definition. And one of the reasons we have a high 
contest rate now is because we do have a four-part definition 
which is complicated and difficult to prove.
    The second thing that we believe is that, though we do 
believe that probably the number of S&Ss will go up, that we 
believe that is actually consistent with the legislative 
history of the Mine Act, that they wanted different types of 
violations to be S&S. And I can give you one example if you 
would like of a type of a case where we think it should be S&S 
and it is not S&S right now. And that is a situation in a coal 
mine where there are high concentrations of coal dust, where 
the ventilation controls, the curtains are not being put in 
place. It is a gassy mine with a high concentration of coal 
dust. And we believe that that should be an S&S situation. The 
commission--ALJ found that because there wasn't any potential 
ignition at that moment when the inspector was there and cited 
it, that it was not S&S. Yet 5 minutes after that inspector 
left or an hour after that inspector left or a month after that 
inspector left, there could have easily been an ignition site. 
So that is why we believe that that type of a violation should 
be S&S.
    Mr. Kline. Thank you. I see my time has run out. I just 
think that we ought to be careful when we are putting things in 
statutes that we don't have an unintended consequence of making 
everything but paperwork an S&S violation, and therefore if 
everything is bad, then sort of nothing is bad.
    I yield back, Mr. Chairman.
    Chairman Miller. The gentleman yields back.
    Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman.
    Dr. Michaels, is it true that OSHA can only inspect the 
average workplace about once every 137 years?
    Mr. Michaels. There are different ways to calculate it, but 
OSHA has a relatively small number of inspectors. With our 
State partners, a little over 2,000 inspectors for 7 million or 
8 million workplaces. So, yes, it takes a long time. If we 
tried to go to every workplace, it would take us a very long 
time.
    Mr. Kildee. That is incredible. But I read it, and I 
checked with every one of the staff people up here, and they 
said that is the number. Given the lack of inspectors relative 
to the number of workplaces, what elements in this legislation 
would most help leverage your limited resources?
    Mr. Michaels. I think that is a very good question. There 
are a couple of them. The first, obviously, is whistleblower 
protection. Workers are the eyes and ears of OSHA. They have 
more on the line in terms of safety than any of us. They are 
the ones whose arms and whose lungs are in danger, so they have 
to feel free to raise issues of safety. And if they don't have 
adequate whistleblower protection, and frankly, under the 
current OSHA law, then they can't raise problems with their 
employers without the fear of losing their jobs, and they can't 
call OSHA without fear of losing their jobs. So that alone will 
have a great impact.
    I think increased penalties will also have a important 
impact, because the reason we have penalties more than anything 
else is deterrence. We obviously want to get the word out to 
employers that if you don't fix your problems before OSHA gets 
there, you will have to pay a penalty. And the larger--right 
now--I don't believe that the fines that we can impose are 
adequately large in terms of a deterrence effect. And so both 
of those will help us tremendously.
    Mr. Kildee. In many instances, OSHA hands over or contracts 
with State government to carry on the inspection. How does that 
affect your ability to do your job?
    Mr. Michaels. Well, we work in cooperation with States; 21 
States have programs where they essentially do the OSHA--they 
are the OSHA program for those States. And four additional ones 
do that only for public-sector workers. We work closely with 
them.
    The law says that they have to be at least as effective as 
Federal OSHA, and it is our job to oversee them. And there are 
some problems I know this committee has looked into with our 
ability to ensure that they do their job well, and we 
appreciate the help you have given us on this so far. But in 
those States, they are OSHA, so we have got to help them and 
support them and push them into doing as good a job as they can 
do.
    Mr. Kildee. Doesn't that create a greater burden on you? 
You have to trust a bit further away from where these laws are 
passed, that they be enforced.
    Mr. Michaels. The OSHA law essentially says, if States want 
to take on the responsibility, they should do that, and we will 
support them in doing that, and that is what we do.
    Mr. Kildee. You know, I can recall, just I will very 
quickly, I can recall a few years ago near my district, Owosso, 
Michigan, a young woman reached into the press. And when you 
reach into the press, you are supposed to hit two buttons, and 
then you put your hands in and remove. And she had done that, 
and both of her hands were totally mashed. And I can recall 
that probably changed my 13-year old daughter at that time, her 
attitude towards many things in life, how that could be 
permitted. That machine had been cited several times, and they 
never did anything to repair it. So I lost a little trust at 
that time in my OSHA.
    And I think that you have to really watch them to make sure 
that--this is a Federal law, and if we do give some of the 
responsibility to the State, to really watch them very 
carefully.
    Mr. Michaels. Yes, we agree. In fact, this committee held 
hearings on this very question following what was pretty 
clearly poor performance of OSHA in Nevada. A number of workers 
were killed, construction workers. Nevada didn't--the Nevada 
OSHA program did not follow up well. There were hearings held 
here. We started an investigation of the Nevada OSHA, which 
found some very serious problems which we issued a report 
about. We are opening up a lot--we have opened up an office in 
Las Vegas to monitor their work much more carefully.
    But out of that also came a new program where we are doing 
essentially in-depth audits of every State OSHA program, 
including Michigan, and we have just gotten the reports back. 
We are now reviewing them and will be releasing them soon. And 
hopefully that will be effective in helping to make sure that 
those State programs are effective as the Federal program.
    Mr. Kildee. Thank you very much, Dr. Michaels.
    Chairman Miller. Mr. Guthrie.
    Mr. Guthrie. Thank you, Mr. Chairman.
    Thank you for holding this meeting, and we appreciate it, 
on very serious issues that we need to address, and I 
appreciate the opportunity to be here.
    I want to look at the OSHA, in section 705 and 706. The 
bill makes significant changes to the penalty provisions of 
OSHAct: 706 would impose Federal criminal sanctions, as we 
discussed, on any company officer or director for knowing 
violations. And do you believe that this would lead to 
businesses to decide to litigate instead of settle, because if 
they settle a future action of knowing could be used and 
therefore give a backlog of cases to establish the knowing 
part?
    Mr. Michaels. I am going to defer to the Solicitor of Labor 
on this.
    Ms. Smith. When it comes to the criminal penalties, those 
cases are not litigated in front of OSHA. So what will happen 
in those situations is that if OSHA and the Solicitor's Office 
find that there are very significant cases, very significant 
violations, they will refer them to the U.S. Attorney's Office. 
And the U.S. Attorney's Office will then examine them and make 
a determination about whether or not there should be a criminal 
prosecution in those situations.
    Mr. Guthrie. It is serious, I understand. But also any just 
settlement for any other violation before it gets to the U.S. 
Attorney, the employer may not want to settle and choose to 
litigate because settling would prove a knowing and therefore 
could be used against them later if somebody decides that they 
get this to a criminal court.
    Ms. Smith. Whatever finding is made in the civil court is 
not binding in the criminal court. So the knowing standard that 
the U.S. Attorney will make will be different than a knowing 
standard that will happen at the OSHAct at the OSH level.
    Mr. Guthrie. You know, companies that have really good 
safety programs and safety records, the ones that are really 
serious about safety, have safety audit teams. They go in--and 
internal audits within their own workers and their own 
workforce.
    And do you think just the knowing--because maybe make a 
list of things we need to improve on and fix and do better, in 
terms of their overall program to make it robust and safer. 
Most major corporations have these kind of teams that do that.
    Does that affect this at all? Would it be less likely to 
have these kind of teams because of the establishment of the 
``knowing'' standard?
    Ms. Smith. I think you need to put that in perspective. 
Both the criminal penalties and the ``knowing'' standard 
actually come out of the environmental safety standards--the 
Clean Air Act, the Clean Water Act, the Resource Recovery Act. 
They have those exact same provisions. And, yet, I haven't seen 
any press reports that major companies, you know, have cut back 
on their environmental programs because of those provisions.
    What we are really trying to do with these provisions is 
make violations under these safety laws--we will call them the 
human safety laws--just as serious as violations under the 
environmental safety laws.
    And so, again, I think we have to look at those laws that 
we have taken them out of. And I, personally, haven't seen any 
reports that there are fewer environmental corporate plans 
because of these provisions.
    Mr. Guthrie. Okay. Thanks. Yeah, we are just trying to 
clarify, so thank you for that.
    And then, in section 703, it would allow OSHA inspectors to 
immediately enact changes to the workplace without OSHA showing 
an imminent threat or providing employers with a hearing or a 
judicial review of the inspector's allegation.
    I understand we discussed trying to show a pattern, but it 
does allow them, without showing an imminent threat, it puts 
the judgment on the OSHA inspector, who could be unfamiliar 
with the workplace and have authority to disrupt business 
operations before the objections of the validity of the 
citation could be heard.
    I understand your concern about the one who continues to 
object in order to prevent that from going forward. What about 
the good players in this? We are focused on the bad players. 
What about the good players who get caught in this?
    Mr. Michaels. Well, you know, it is interesting. Oregon has 
this already, and we never hear any complaints. And MSHA has 
this, as well.
    Most employers actually abate immediately. And, as I said 
before, most contests are around the level of the fine and, 
secondarily, around the classification. Many companies don't 
want to be given a willful citation, because that affects their 
ability to get, for example, municipal contracts.
    The third thing is that--and so we are not talking about a 
large number of cases, but we are talking about important ones, 
where people really are in danger. And so I am not worried 
about the companies that have good programs, because they are 
they ones who are going to want to abate immediately. This is 
really aimed at those recalcitrant employers, those employers 
who don't want to do the right thing and where people could get 
hurt.
    Mr. Guthrie. Well, I absolutely agree with you on that.
    The question is, how do you capture those without putting 
the net over people who are trying to do the right thing? I 
mean, that is the concern. I understand that. And I agree with 
you completely that the recalcitrant employers should be--as, 
obviously, we have seen in the mine before.
    Well, thank you. And I am about out of time, so I yield 
back.
    Chairman Miller. The gentleman yields back.
    Congresswoman Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman.
    Solicitor Smith, you won't be here, I don't believe--at 
least you won't be able to respond to panel two. So I am going 
to ask you to respond to some of the written testimony that we 
will be hearing on the next panel.
    Mr. Snare, in his written testimony, when he is talking 
about--he claims that the abatement-during-contest provision in 
Title VII of the Miner Safety and Health Act will, and I will 
quote him, ``eliminate OSHA and the Solicitor's Office's 
prosecutorial discretion in handling these contested cases and 
eliminate one source of potential leverage they can use to 
resolve cases with the requirement to impose immediate 
abatement.''
    You are the Solicitor's Office. How would you respond to 
that?
    Ms. Smith. Well, I mean, that may be true in the current 
system. What happens is that, if you haven't abated, you could 
say, ``Okay, now you will abate now. We will do whatever.'' 
But, frankly, I think that worker health and safety and having 
immediate abatement is far more important than the ability of 
the Solicitor's Office to wheel and deal cases.
    Ms. Woolsey. He also argues that changes in Title VII will 
strain the resources of the Solicitor's Office. How do you see 
that working? How will you handle the increased demands of your 
office?
    Ms. Smith. Well, I have to say, as the Solicitor, I am very 
concerned about the resources of my office. And there are a 
number of provisions in this bill that I think will counteract 
some of those concerns.
    First of all, there is a provision that says--for 
prejudgment interest. One of the reasons that employers contest 
is because they contest the level of the penalties, and they 
are hoping that they will get penalties reduced, because there 
is time value to money. But by requiring prejudgment interest, 
I think you are going to eliminate a certain number of those 
cases. To the extent that you have individuals who don't want 
to abate, we are going to eliminate, if this bill is passed, a 
certain number of those cases.
    The interesting thing is, unlike MSHA, where when they 
increase the penalties--and there was, as we know, a great 
increase, and there is a great backlog. The last time they 
increased the penalties in OSHA, there was only a 4 percent 
increase in the contest rate.
    And my office has already gotten together a work group to, 
sort of, deal with the fact that there may be an increase in 
the contest rate and how we are going to deal with it 
prospectively, as opposed to what unfortunately happened in the 
MSHA situation, which was that we didn't plan ahead for those 
possibilities and then we, sort of, got caught up with a big 
backlog.
    So I am not really concerned about the resource level, if 
this bill passes, in my office.
    Ms. Woolsey. Okay. Thank you very much.
    Secretary Michaels, you probably would like to respond to 
both of those questions, but I would like to ask you about the 
workers' ability to blow the whistle. Why is that important? I 
mean, how does that make things safer and improve the health of 
our workplaces?
    Mr. Michaels. Well, let me give you an example. There have 
been press reports that workers on the Deepwater Horizon said--
you know, they saw what was going on there, they said it wasn't 
safe. But they said they were scared for their jobs; they 
didn't want to say anything.
    Just think what would have happened if one of those workers 
had, you know, called a government agency and said, ``Look, 
there are some decisions being made here that are simply wrong. 
Can we stop it now?''
    You know, workers are the eyes and ears of every public 
health and environmental regulatory agency on the ground where 
the hazards are worst. And their voices are necessary to 
protect themselves and to protect the rest of us.
    OSHA has the weakest anti-retaliatory whistleblower 
protection law of any agency. OSHA actually enforces the 
whistleblower protection laws for all of the new legislation--
the patient protection bill that has just been passed by 
Congress; the financial reform bill that is going to be passed 
soon will be given to OSHA to protect workers. And all of those 
laws have much stronger provisions than the OSHA Act, because 
we were the first one, and it was written very badly 40 years 
ago. It was written in a weak way.
    And so, we and MSHA need stronger whistleblower protection 
laws because workers have to be able to protect themselves. 
They have to call us in. They have to be able to tell their 
employers, ``Here is a hazard,'' without fear of being fired.
    Ms. Woolsey. So, Secretary Main, let's follow up on this 
whistleblower issue. At our hearing in Beckley, it was very 
clear to me that the workers knew they were working in very 
unsafe conditions. So did their families.
    How are we going to be able to--we have to pass this, but 
what do we need to do then? What are our next steps so that 
they know they can count on this protection?
    Mr. Main. I think the most important thing we can do is 
pass the legislation that puts in place protections and 
vehicles to make these improvements.
    I was at the hearing in Beckley, West Virginia, as well, 
and anyone that walked away from there that didn't understand 
the real need to enhance protections for miners, to give them a 
voice, probably was on another planet, as the saying goes. 
There is a compelling case here to be made, and I just want to 
touch on that for a second, in terms of the need.
    When you have miners that go to work that leave notes for 
their families that they may not come back home from work, I 
think that is a very dire situation we have in workplaces in 
this country. And we really need to examine how we fix a 
problem like that to make sure that the message that the worker 
leaves is, ``I will see you when I get home tonight.''
    Ms. Woolsey. Yeah.
    Mr. Main. In terms of the legislation, there are a number 
of pieces that are going to be very helpful to answer the 
questions you have raised.
    One is making it clear that miners have the right to refuse 
unsafe work. I think that is a critical provision that is going 
to be in the law; giving miners the right to let their boss 
know, let MSHA know that there is an unsafe problem and put the 
obligation on the employer--which it is their employer's 
responsibility in the first place to make sure that the 
workplace is safe for those miners. But it puts an obligation 
on the employer to fix it.
    It sets protections for miners that if they are retaliated 
against for exercising that right with telling the government, 
telling their employer, that they have protections that are far 
more meaningful than today. I think the message we heard is 
that miners do not have faith that the protections that are 
contained in the current law really protect them.
    Giving miners a fair shot of having a paycheck if they do 
complain about a condition and MSHA comes in, does observe it, 
does take the enforcement action, does issue an order, instead 
of waiting months or years to get a paycheck in those cases.
    Having a provision that requires miners to, every year, be 
trained on their rights, which is contained in this new 
legislation.
    I think all of those pieces will help make the world a 
better place for miners.
    Ms. Woolsey. Okay.
    Thank you, Mr. Chairman.
    Chairman Miller. The gentlewoman yields back.
    Congresswoman McMorris Rodgers?
    Mrs. McMorris Rodgers. Thank you, Mr. Chairman.
    And thank you all for being here.
    We are all committed to making sure that we are taking 
steps to have a safe workplace, and especially as it relates to 
mine safety and the example of the Upper Big Branch Mine. I 
believe that it is important, before we just move ahead with 
legislation, that we better understand if anything in this bill 
would have actually prevented the mine disaster and what those 
complaints were and why MSHA hadn't taken action.
    But what concerns me--you know, I think we could get to an 
agreement on mine safety and the appropriate response. But also 
attached to this bill is a very broad reform of OSHA that is 
only going to increase litigation, discourage settlements, and 
create disincentives for cooperation between business owners 
and OSHA.
    And we hear from the proponents that we need swift, 
meaningful, serious penalties. And we certainly get those in 
this bill, the many new felony offenses, the increased 
penalties--first offense, from 6 months to 10 years. It is 
increased from 6 months to 10 years. Second offense is 
increased from 1 year to 20 years.
    And I really believe that a more cooperative approach, 
better communication between OSHA and employers will go a long 
way towards making our workplace safer. And I believe that we 
have seen that in recent years.
    So I want to ask the question, what evidence is there to 
suggest that this more adversarial approach is actually going 
to create a safer workplace? And how is litigation going to 
help make the workplace safer? And how are these changes going 
to impact small businesses and their ability to succeed, 
especially during a very difficult economic environment?
    Ms. Smith. Well, I am not sure I can answer all of that, 
but let me start out by trying.
    When it comes to the OSHA provisions, I think one of the 
things that this bill does is it puts the OSHA provisions 
basically on par with the MSHA provisions, in the provisions 
that it deals with, so that workers in oil refineries can have 
the same safety standards as workers in mines have.
    And I think that is one of the reasons, for instance, we 
had the immediate abatement provision. The immediate abatement 
provision has already been in MSHA. It has been in the Mine Act 
for many years. We don't, you know, hear a lot of complaints 
about immediate abatement, and we think that workers in oil 
refineries and other workplaces should have that, sort of, same 
safety rights.
    When it comes to the increase in penalties, I think Dr. 
Michaels talked about OSHA. Penalties haven't been increased in 
40 years. And for a serious violation that a worker dies in--
not a willful, but a serious violation--the maximum penalty is 
$7,000. And to the extent that you believe that penalties are a 
deterrent--and I believe that employers do pay attention, that 
most employers want to do the right thing, but sometimes, I 
mean, they need a little nudging. And a $7,000 penalty is not a 
big nudge.
    So I think that what we have seen is that most employers 
want to do the right thing, but it is very difficult to get to 
the recalcitrant employers. And that is what this bill is 
basically dealing with.
    Mr. Michaels. And if I could follow up briefly, you know, 
we have various provisions in our laws and our policies to 
protect small-business people. We reduce our penalties 
automatically for small-business people, so, in fact, that 
$7,000 penalty becomes quite a bit lower for a small business.
    But it is also important to think about fairness beyond 
even the question of deterrence. There are so many small 
businesses that do the right thing, that make the capital 
investment even during rough times to make sure their workers 
are safe. We are putting them at a competitive disadvantage if 
we are saying to the other employers, the recalcitrant 
employers, ``Don't worry, we are not going to do anything until 
someone is hurt, and then we will just give you a small fine.'' 
That is really not fair. We have to level the playing field, 
and this bill is a small attempt to do that.
    Mrs. McMorris Rodgers. One thing about our current system 
is that it protects due process by allowing the employers to 
challenge the assessments made by OSHA before requiring the 
corrective action. And it is not uncommon for those cited 
violations to be overturned or found not valid.
    If this legislation were to become law, what would happen 
if an employer is required to take a corrective action that is 
found to be warrantless? Would they have the ability to recoup 
any losses that had been incurred for errors in the 
determinations made by the OSHA inspectors?
    Mr. Michaels. You know, I don't know the figure of the 
percentage of violations that are actually overturned. It is a 
very small one. But this system builds in, essentially, an 
immediate accelerated review process. So, if the employer has 
good reason to think that the abatement requirements that OSHA 
is putting forward are not accurate or fair, they can go to the 
review commission immediately and essentially stay that. I 
think it is quite fair, and I think that does provide the 
protection that small employers need.
    Ms. Smith. And if I could add to that, even though an 
employer has to abate the unsafe condition immediately, that 
doesn't mean that they can't appeal the penalty and that they 
can't get the penalty reduced. Just because you abate doesn't 
mean that you, sort of, have to give up and you can't contest 
anything that OSHA has done.
    In the MSHA context, where you do have to abate 
immediately, you find that employers contest the penalties all 
the time. They can also contest the underlying citation, which 
would mean, if they win that, that they shouldn't have abated. 
In MSHA, it is less than a 2 percent rate where the actual 
citation is overturned, so I don't think that that is really a 
big problem.
    Mrs. McMorris Rodgers. Okay. Time is up. Thank you.
    Chairman Miller. Mr. Courtney?
    Mr. Courtney. Thank you, Mr. Chairman.
    As Congresswoman Woolsey mentioned in her opening comments, 
a couple of weeks ago this committee held a hearing in 
Middletown, Connecticut, which looked at the natural gas power 
plant explosion, the Kleen Energy plant explosion, where, 
again, we had testimony from a brother of one of the victims 
who described the misgivings that his brother had the day that 
they did a natural gas blow through the pipes, which 
manufacturers of these turbine engines are now, actually, on 
record recommending not be used. They recommend much safer 
alternatives.
    Yet it was pretty clear that the workers did not feel 
empowered to step out and say, you know, ``Why don't we 
evacuate the area when this procedure is going on?'' Again, 
there were a lot of unrelated extraneous workers who were in 
the area, and some of them were killed as a result of that 
blast.
    And it is clear--because, obviously, this isn't an MSHA 
context; it is an OSHA context--that the law contains many gaps 
in terms of protecting workers who clearly were experienced in 
the work that they were doing but weren't being given the legal 
standing to actually step out and challenge whether or not it 
was a safe workplace for them to be in. And, obviously, events 
proved that these misgivings were, unfortunately, well-founded.
    So, again, I think this committee should respond to what we 
are hearing at these field hearings as well as today's 
testimony about the fact that we need to strengthen these laws, 
not to hinder the economy but to just get us to a point where 
the mission of OSHA is actually achieved.
    I would like to ask the Solicitor about two provisions that 
you mentioned in your testimony. Number one is the modification 
of the subpoena powers, where, again, your testimony indicated 
that what we are trying to do for MSHA is really to put it on 
par with the subpoena powers in OSHA.
    I was wondering if you could actually just, kind of, maybe 
be more specific in terms of how that would actually help the 
enforcement of mine safety?
    Ms. Smith. First of all, let me tell you that giving the 
Secretary subpoena power is very common. Not only does she have 
it in OSHA, she has it under the Fair Labor Standards Act, she 
has it under the Family Medical Leave Act.
    And what that means is that, in an investigation--well, 
take the investigation right now. In the investigation, there 
are people that you want to talk to who don't necessarily want 
to talk to you voluntarily. There are papers that you need. 
There are records that you need. And without subpoena power, 
the only way that you can do it now in an investigation is in a 
public hearing.
    If you are not doing an accident investigation, if what is 
happening is you are looking into a particular citation or in 
the litigation context, you are trying to prove that a citation 
was actually substantial and significant, very often you can't 
rely upon the kindness of strangers to get your evidence. You 
basically need subpoena power.
    And so, that is what we are asking for. Again, it is very 
common to give the Secretary the subpoena power. She has it 
under OSHA, she has it under the Fair Labor Standards Act. And 
there is nothing improper with giving the Secretary subpoena 
power.
    If there is a dispute, if somehow the employer feels that 
the Secretary has subpoenaed something that they are not 
entitled to, either they do nothing and the Secretary is forced 
to go into court and get an order or they go into court and get 
an order to quash. So there are plenty of places where any 
disputes can be resolved.
    Mr. Courtney. And the notion that this provision is somehow 
jumping the gun in terms of, you know, not waiting until there 
has been, you know, a full set of findings regarding this mine 
disaster, I mean, in fact, what we are talking about is really 
just creating parity in the law----
    Ms. Smith. Creating parity, exactly.
    Mr. Courtney [continuing]. And just following existing 
precedent that, again, as you point out, extends to wide areas 
of administrative law.
    The other area that you mentioned in your testimony was on 
injunctive relief, in terms of trying to get the standards 
clarified. Again, I was wondering if you could help us, sort 
of, understand what the problem is right now and how that 
change will help, again, the goals here.
    Ms. Smith. Well, right now, the injunctive relief 
provision, which has never been used, requires that there be a 
pattern of violations. And Assistant Secretary Main discussed 
the broken pattern of violations provision. And right now, what 
we want to do is to clarify it to make sure that we are not 
required to get someone on an administrative pattern of 
violations before we can get an injunction. That is why we are 
asking Congress to change the language to ``course of 
conduct,'' which makes clear that we don't have to have an 
administrative pattern of violations, something which has never 
happened in 30 years.
    The second thing is that, right now, it limits the 
injunction power to mandatory health and safety standards, but 
think of the situation where an operator has a course of 
conduct of refusing to abate. That could be an order--or they 
have a course of conduct of refusing to withdraw miners when 
they are ordered to be withdrawn from the mines. That type of 
thing would not fit under the injunction provision right now. 
So we are asking that also to be clarified, such that not just 
mandatory health and safety, but other things would be subject 
to injunctions.
    Mr. Courtney. Thank you, Mr. Chairman.
    Chairman Miller. The gentleman's time has expired.
    Mr. Price?
    Mr. Price. Thank you, Mr. Chairman.
    Certainly, we all believe that any workplace death is a 
tragedy and any injury is unwanted by all of us.
    Secretary Michaels, you have talked a number of times 
about, quote, ``unscrupulous employers,'' unquote. Do you want 
to name any?
    Mr. Michaels. We have certainly had our problems with an 
oil company with two initials, ``BP.'' We have gone in there 
and we have said----
    Mr. Price. Anybody else?
    Mr. Michaels. No, I don't think we need to go into the 
specifics here of any one. But if you would like, I could 
certainly get you a list.
    Mr. Price. I would love to have that list.
    Mr. Michaels. Okay.
    Mr. Price. Secretary Main, after the tragedy at the Upper 
Big Branch, MSHA took action to shut down a number of mines. 
Did you have that authority to shut down the mines before the 
tragedy?
    Mr. Main. The tools that we used are tools that were used, 
actually, at Upper Big Branch, in terms of the issuing of 
orders under section 104(d) of the Mine Act, in particular. And 
those shutdowns actually involved a short period of time and 
targeted areas of the mine where the conditions, we felt, 
merited that action.
    The problem is none of those shut down a mine to hold the 
mine down in terms of what we are talking about with this 
legislation. That is what we are hoping to be able to do with 
section 108, as the Solicitor of Labor has pointed out.
    Mr. Price. But could you have shut those mines down before 
the tragedy?
    Mr. Main. We did at Upper Big Branch. I mean, there was--at 
times, I know there was a 3-day shutdown at Upper Big Branch. 
There was one that was a day and a half at Upper Big Branch.
    Mr. Price. So, when you see an imminent threat, you are 
able to shut a mine down?
    Mr. Main. Well, here is the problem, and here is a problem 
we run in to. You know, section 104(d) of the act was probably 
the most effective tool in bringing to bear the enforcement 
provisions of the Mine Act on the mine operator----
    Mr. Price. But when you see an imminent danger, you are 
able to shut a mine down, correct?
    Mr. Main. If you see an imminent danger over an issue, 
until that issue is corrected.
    Mr. Price. Okay.
    Mr. Main. But what we don't have is the----
    Mr. Price. I got you. I got you.
    Mr. Main. Okay.
    Mr. Price. Solicitor Smith, you gave an example to Ranking 
Member Kline about this awful problem that was an imminent 
danger. If that was indeed the case and you all recognized 
that, MSHA recognized that, then you could shut the mine down 
right then, couldn't you?
    Ms. Smith. No, that wouldn't be considered an imminent 
danger.
    Mr. Price. And the reason for that is?
    Ms. Smith. Because there was no ignition spark.
    What we are saying is that, even though it is not an 
imminent danger, we think it should be a significant and 
substantial violation. An imminent danger is a more 
substantial, more serious violation than a substantial and 
serious violation under the Mine Act.
    Mr. Price. I wanted to talk a little bit about the 
``knowing'' requirement, that knowing that something is 
happening exposes one to significant liability. I don't know if 
you saw the Politico this morning, this article----
    Ms. Smith. I have not.
    Mr. Price [continuing]. ``Danger on the Hill: Safety 
Hazards Abound Across Capitol Complex.'' There is a quote here, 
``Workplace safety experts say that if Congress were a private-
sector business it would be at risk for massive fines from 
government regulators.''
    Solicitor Smith, I am just interested in asking you, who in 
the House of Representatives would you deem to be an officer 
with liability for knowing the 6,300 violations?
    Ms. Smith. Now you are asking me a corporate question. I am 
not exactly--I am not well-attuned enough to the corporate laws 
of a corporation. I couldn't answer that, let alone could I 
answer it about Congress. But I am sure that there is an 
appropriate expert out there who would know the answer to who 
is a corporate officer----
    Mr. Price. Somebody who ran the House maybe? Somebody who 
ran the House?
    Ms. Smith. Well, maybe one of the lawyers who works for the 
House.
    Mr. Price. There you go.
    But let me get back to MSHA. MSHA has inspectors in 
underground mines virtually every day, correct?
    Mr. Main. Depending on the mines. We have mines that are 
very gassy mines that call for more frequent inspections.
    Mr. Price. And they are down there all the time, right?
    Mr. Main. Not every mine, no. There are 14,500 mines----
    Mr. Price. Right, but they are down in the mines all the 
time. If they know that something is a challenge and they don't 
do anything about it, are they exposed to the ``knowing'' level 
of liability--MSHA, itself?
    Ms. Smith. They would not be. They would probably be 
exposed to other Federal laws but not that one.
    Mr. Price. Well, why not?
    Ms. Smith. Because they are not----
    Mr. Price. They are the same as anybody else down there, 
right?
    Ms. Smith. Well, they could be, but they are not an 
operator or an agent.
    Mr. Price. So they don't have the criminal penalties that 
one is exposing the officers and directors of the company to; 
is that right?
    Ms. Smith. Not under this statute. I am not saying that 
they don't have it under other statutes.
    Mr. Price. Do they have criminal penalties under other 
statutes?
    Ms. Smith. I don't know the answer to that. But I don't 
know the answer ``yes,'' and I don't know the answer ``no.''
    Mr. Price. Okay. Thank you.
    I yield back.
    Chairman Miller. Ms. Chu?
    Ms. Chu. I understand that it can take an inspector an hour 
from the time that they arrive to reach the critical areas in 
the mines for inspection. Testimony from one of the mine 
workers, Jeff Harris, said that once workers knew there was an 
inspector around, they would start prepping the area so that it 
was up to code.
    And in the non-union Massey Mines, when an inspector came, 
the code words would go out, ``We have a man on the property,'' 
and those words would be radioed from the guard gates and 
relayed to all working operations in the mine, and word would 
spread pretty quickly.
    How does the mine safety bill deal with this? I know that 
there are severe penalties if there is advance notice, but is 
there a way of detecting such advance notice while it is 
happening rather than after the fact?
    Mr. Main. You know, one of the views of this legislation is 
that, for those who were bad actors in the mining industry, it 
makes them a better corporate citizen when it comes to mine 
health and safety. And I think that was intended in the 1969 
Mine Act, the 1977 act, and I think it is the hope of this act 
that, when individuals who would contemplate making those kinds 
of decisions realize the consequences, they will be less apt to 
do that.
    And giving advance notice to interfere with the inspection 
of a mine that places miners in danger is one of those things 
that we fully expect the Mine Act to send that kind of a 
message to.
    Mine operators who comply with the law every day, that take 
care of business--you know, this law was aimed at getting at 
the worst of the worst out there that are failing to comply 
with the law. But we would hope that the provisions that are 
contained in this act will change the thinking of those who 
would desire to engage in actions like that.
    Ms. Chu. And would there be a way of detecting this advance 
notice as it is happening?
    Mr. Main. Yes. I think the tools that are in--there are a 
lot of these pieces that actually fit together to help support 
the overall application of this law. And one of them is giving 
miners the opportunity to report unsafe conditions, violations 
of the law.
    One is the subpoena powers that are contained in the law, 
as well, that gives an opportunity for that information to be 
gained from those folks that would be engaging in that. And, 
you know, just a multitude of other provisions that will help, 
hopefully, change the attitude toward folks that would engage 
in those practices.
    Ms. Chu. Then let me ask about another issue, which is, 
once an inspector was known to be in the area, certain actions 
would try to cover up the situation. For instance, this same 
Jeff Harris, a West Virginia miner, testified that they would 
put up ventilation curtains, and then once the inspector left, 
they would take them down, and that some workers would point 
this out, but the inspectors would reply, ``We need to catch 
it.''
    It is good to have whistleblower protections, but would it 
be worth it to report such things, for miners to report such 
things, if it is necessary to catch it in order for some action 
to take place?
    Mr. Main. Yes, this is a practice that was not only 
reported from the Upper Big Branch Mine, but around the same 
time of the Upper Big Branch disaster, we made special 
inspections at mines in response to complaints about conditions 
at these particular mines.
    In three of these mines, we actually went to the mine, 
captured the phone to prevent a call from being made 
underground, to try to determine what the conditions were in 
real time. And the agency inspectors were able to do that. And 
they found cases, as you had described here, that was described 
at the Upper Big Branch Mine where ventilation controls were 
not in place, where mine officials were actually on-site, 
overseeing the work activities, without these kind of 
ventilation controls. Apparently, miners were working in dust, 
and the lack of controls to dilute methane from exploding.
    We are hopeful that the combination of changes that are put 
in this legislation will help curb those, giving a miner a 
voice to report them; not having a fear that something could 
happen if an operator decides that they are going to try to 
engage this these kinds of activities, such as, you know, the 
subpoena authority would have to rout out that kind of 
information; having greater penalties in terms of criminal 
application law for those who engage in knowing conduct like 
that.
    So I think collectively there are a number of pieces in 
this legislation that will help to deter that kind of conduct.
    Ms. Chu. And if the worker points this out as the inspector 
is there, is that worker protected under the whistleblower 
provisions of this law?
    Mr. Main. From everything I have read, I think absolutely, 
yes.
    Ms. Chu. Thank you. I yield back.
    Chairman Miller. Mr. Holt?
    Mr. Holt. I would be happy to yield my time to Mr. Rahall.
    Chairman Miller. Well, under the agreement we had--you were 
in the room at the time----
    Mr. Holt. Oh, okay.
    Chairman Miller [continuing]. You can ask, and then I am 
going to Mr. Rahall and Mrs. Capito at that point.
    Mr. Holt. Fine. Fine. Okay. Thank you, Mr. Chairman.
    Chairman Miller. So you can use your time now or you can 
give it to Mr. Rahall or you can do something else.
    Mr. Holt. Thank you.
    What I would like to address, then, is the safety 
technology and whether we are--I mean, enforcement is one 
thing. And, I mean, I think the points that have been raised, 
perhaps partly while I was out of the room, are important. But 
I would like to find out whether we are putting enough emphasis 
on the development of the safety technologies.
    Communication, for example, is something that we have been 
working on in New Jersey--not a mining State, but good in 
telecommunications. And we have been working on non-
interruptible communications that can work in cases of coal 
mine collapse and a dirty environment and so forth.
    And I am wondering if we need to be building into the 
legislation more support for this sort of thing.
    Mr. Main. I don't think there is any question that we could 
always use more support on technology development. And the 
mining industry has, I think, identified whenever the--the 
MINER Act was enacted in 2006. And looking at ways that can 
prod that, I think, is very beneficial for miners in this 
country.
    One of the provisions that is in the bill deals with 
beefing up the atmospheric monitoring of the conditions of the 
mines that would enable information to come very swiftly to the 
operational folks at the mine on increases of methane that 
could cause explosion; on increases of carbon monoxide--it is 
an indication that there may be a fire burning in a mine; on 
changes of airflow indicate that ventilation controls are 
damaged somewhere--to be able to get miners more quickly out of 
the mine.
    And I think, by the same token, looking at beefing up the 
technologies that are available for use during mine 
emergencies. I have been doing mine emergencies for 20-some 
years, and one of the things that inhibits our ability to 
quickly enter a mine is a lack of knowledge about the mine 
environment--the decision to send in mine rescue teams into an 
environment that could be explosive and cost them their lives. 
And one of the provisions in the legislation calls for more 
research to develop technologies that could be in use doing the 
post-accident circumstances, where you could more quickly 
understand that mine environment and more quickly get into the 
mine to rescue miners.
    So, yes, I think things like that we need to be looking at 
more proactively.
    Mr. Holt. Thank you.
    Would the other witnesses care to comment on that? No.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Mr. Rahall?
    Mr. Rahall. Thank you, Mr. Chairman. And I appreciate you 
and Ranking Member Kline for allowing me to sit with the 
committee this afternoon. And, certainly, I am happy that you 
chose to name the pending legislation after our late senior 
Senator, Robert Byrd.
    Joe, let me preface my questions by saying I understand, 
and I am sure we all do, the situation that you inherited upon 
taking over as Assistant Secretary and head of MSHA. There was 
quite a strain on budgets, as there still are. Perhaps training 
was not up to par, and safety was not stressed to the degree 
that it is today. And there was a different ideological bent 
from above, which is very important, as we all know, whether it 
is MSHA or OSHA or MMS, in the case of the oil rig disaster. 
And so you have been making quite a few changes, and we all 
appreciate that, a different emphasis, et cetera.
    You have also commented on Chairman Miller's bill and the 
manner in which you feel it will help correct a lot of the 
current deficiencies.
    The critics of the pending legislation will say that it 
unduly penalizes the good actors or that current law is 
sufficient; why not enforce current law? That is what the 
critics will say of the pending legislation. I believe you have 
answered that in a number of different responses already.
    But one of the previous questioners on the minority side 
asked you if you currently had the power to shut down a mine, 
and reference was made specifically to UBB. We all know there 
have been various lawsuits filed by the owners of that mine 
against you. We know what their strategy is. If it were not a 
serious issue, it would really be laughable, but it is a 
serious issue.
    And the question was asked if you had the power to shut 
down UBB specifically. We know that one of the lawsuits is 
challenging you on ventilation plans. We know there had been 
controversy over the adoption of the ventilation plan just days 
before this tragedy struck.
    My question is, if the owner knew there were problems with 
the ventilation plan and had serious disagreements with MSHA 
over the ventilation plan that you adopted or that you 
approved, could the owner of the mine, himself, shut the mine 
down if he felt it was unsafe due to that ventilation plan?
    Mr. Main. I think that, without question, if the operators 
of Upper Big Branch thought in their mind that the mine was 
dangerous, they could shut that mine down any time they 
desired.
    Mr. Rahall. They don't need your approval to shut down 
their mines?
    Mr. Main. They don't need our approval to shut down a mine. 
And----
    Mr. Rahall. Thank you.
    Let me ask you about--well, I believe you have commented on 
the whistleblower protection. I will skip all that.
    As you know, there have been a lot of questions by the 
current families of UBB miners as to who had access to the mine 
post-disaster, post-April 5th. They want to know names. They 
want to know the full list of who has been in that mine during 
the investigative process. And I commend you in the manner in 
which you have responded to the families. And you and Kevin 
Strickland have had these meetings, along with our State office 
of mine inspection and Davitt McAteer.
    But my question, and I guess I will get right to the bottom 
line: Why can't we make a disaster scene a crime scene, like we 
do if there is an accident on the highway or something? We rope 
it off. Nobody is allowed to come onto those premises except 
the law enforcement personnel, except those who are 
investigating the disaster.
    That question has been asked a number of times by the 
families. Could you comment on that? I know perhaps there are 
legal ramifications to it, as well as knowledge of the mine. 
But just comment on why we just cannot rope it off like a 
normal crime scene.
    Mr. Main. I think we are transitioning closer to that, 
Congressman, as we move forward. And I think the outgrowth, if 
you look back at this investigation, may push us closer to that 
kind of a model than we have now.
    There has been a historical model where, upon an accident, 
an investigation is conducted that usually involves at least 
three to four parties, depending on the representation of 
mine--the Federal agency, MSHA; the State agency; the mine 
operator; and if there is miner representatives, 
representatives of the miners. So you always have that group 
that is going to be involved in those kind of traditional 
investigations.
    Upper Big Branch is a bit hybrid from that, given the 
involvement of a Justice Department investigation, whatever 
they are doing with regard to their dealings with the disaster.
    The other thing that I think we all realize is that there 
is a lot to maintaining a mine. As we went back in, we had to 
have a lot of work done to repair damages, to make 
examinations, resources that the mine operator has that is 
necessary in the actual investigation of a mine. It is a little 
difficult to get around.
    I think the concept of the government taking over total 
control and not letting anybody in that mine is a challenging 
one since the mine operator controls the power center, the 
power cables, the ventilation of the mine, the whole nine yards 
it takes to keep a mine safely operating.
    Mr. Rahall. So MSHA would have to legally just take over 
the whole mine in order to prevent a company or any other non-
pertinent players from coming into that mine after the 
investigation--I mean, after a tragedy?
    Mr. Main. Yeah, I think you are right, but I think there 
are some real complications in trying to do that, given the 
maintenance, the inspection, the resources it takes to keep a 
mine open and that you have to be in the mine correcting and 
fixing things.
    Mr. Rahall. Thank you, Mr. Chairman.
    Chairman Miller. The gentleman's time has expired.
    Congresswoman Capito?
    Mrs. Capito. Thank you, Mr. Chairman. I would like to thank 
you and the ranking member for having the hearing and also for 
allowing me to participate.
    As all of you know, West Virginia is still mourning the 
loss of our 29 miners killed at the Upper Big Branch Mine, and 
we are still mourning the passing of our senior Senator, and 
wish to thank everybody here who are non-West Virginians, thank 
you for your good thoughts and prayers during these difficult 
times for us.
    I actually represent Sago, and during the Sago Mine 
disaster, shortly after that, we did do a mine safety act. And 
I think we found, in the process of this unfortunate accident, 
that several of the measures that we moved forward in that bill 
actually helped us in the inspections or in the rescue efforts 
and the timeliness of those. So I was very pleased to see that 
some of those measures helped. Unfortunately, we didn't get a 
good outcome, but it did help.
    I would also like to say, Secretary Main, when you were 
here in February, you mentioned several changes that needed to 
be made, a lot of which are in the chairman's bill. I would 
just like to go over four points that you mentioned: improve 
implementation of the Mine Act and mine safety and health; 
simplify the contested case process; improve consistency by 
MSHA inspectors and supervisors; and create an environment 
where fewer cases enter the contest process.
    I would like to ask about that because I am concerned--and 
this has already been asked before, but I am concerned that, 
recently, since that MINER Act, we have had, gosh, 30 percent 
more numbers of citations by MSHA, we have many more penalties, 
but also the contested case has taken 587 days when, before, it 
took 374 days. I know you are familiar with these statistics.
    My concern is--I mean, that concerns me. And we have heard 
this about a lot of mines, that it is prolong, prolong, 
prolong. Is the process that this bill puts forward going to 
perpetuate that and make it worse?
    And what provisions do you think are being made--I heard 
the Solicitor say that she thinks that the standard will be 
clearer and it could actually pull down the number of cases. 
But I think most people looking at it think it is going to 
increase the number of cases. What is your reaction to that?
    Mr. Main. I want to take the first part, and I will let 
Solicitor of Labor Smith take the second part.
    If you look at the pattern of violations--which, a lot of 
folks think that a reason that there is a contesting of the 
violations is to forestall the application of a potential 
pattern of violations, is one of the issues. The legislation 
really changes that, to the extent that we will not be looking 
at the final orders of the commission to make that 
determination. So that is one piece that I think gets, sort of, 
removed fairly quickly.
    Mrs. Capito. So you don't have to wait until the end to 
make the determination; is that correct?
    Mr. Main. Pardon?
    Mrs. Capito. You don't have to wait until the end to make 
the determination?
    Mr. Main. That is correct, based on the orders, citations 
that are issued.
    I think some of the provisions built in that stiffens the 
resolution of these cases for the commission, also helps 
disincentivize those who would be taking a shot at having a--or 
to contest the violation to get a better deal, which is one of 
the concerns I have.
    If you look at the comments that I made back in February--
and I think this is pretty close to it--that basically all it 
took was mailing a letter, costing you 44 cents, to appeal a 
penalty that has been assessed to a violation and wait a couple 
of years and get maybe a 47 percent break. There are a lot of 
provisions, I think, that are designed to undercut that--or to 
change that, to disincentivize that.
    Mrs. Capito. Okay. Thank you.
    Mr. Main. And Solicitor Smith may have some other additions 
to that.
    Ms. Smith. Well, basically, what this bill did was look at 
the incentives for why the contest rate went up so much, the 
reasons the contest rate went up so much. It wasn't just 
because there were more inspectors and more citations, but the 
actual contest rate went up dramatically.
    Mrs. Capito. Right.
    Ms. Smith. And so, as the Assistant Secretary said, one of 
the things was that individuals would contest so that there 
wouldn't be a final order for a pattern. And that is one thing 
that has been eliminated.
    Secondly, to the extent that there was a great delay, there 
is the time value of money. So prejudgment interest reduces 
that incentive to contest.
    Then, as the Assistant Secretary said, you know, there was 
a GAO report in 2007 that said the commission would often 
dramatically reduce the penalties even when they upheld the 
citation.
    Mrs. Capito. Right.
    Ms. Smith. So that has been eliminated in this bill.
    So we think that the, sort of, non-necessary reasons to 
contest have been really dealt with and that that will help the 
contest rate in the future.
    Mrs. Capito. Well, thank you.
    I see my time is up, but I would like to ask the chairman 
and the ranking member: I have worked on a solitary bill on my 
own that incorporates a lot of what you have but then some 
other suggestions based off of what Secretary Main suggested in 
March. So I would hope maybe we could work through some of 
these as you are marking up the bill. I would appreciate that.
    Chairman Miller. I would be glad to take look at it. Thank 
you.
    Mr. Altmire?
    Mr. Altmire. Secretary Main, I wanted to focus on the 
regions within MSHA. I come from western Pennsylvania. And, 
anecdotally, I hear from mining operators and miners alike 
throughout western Pennsylvania that there is a difference in 
enforcement, which results in a difference in outcomes, safety 
records within the different regions of MSHA, western 
Pennsylvania comparatively having a pretty good record. 
Anecdotally, that is what I hear.
    And I wondered, is there truth to that statement that there 
is a substantial difference in the safety records within 
regions? In your experience, which regions of the country have 
the best records of safety? Which ones need improvement? And is 
this due to a difference in enforcement within the regional 
administrators of MSHA?
    Mr. Main. I grew up in southwestern Pennsylvania, and I 
probably know a lot of the folks that you have conferred with 
in that area.
    I think, you know, as a starting point, there are some mine 
operators who take a different view about how they run mines 
than other mine operators do. And I think, as we all have 
looked at statistics and saw a number of mine operators who 
seem to chug along every day and comply with the law and have a 
good safety management program in place that is unaffected by 
the law, and that others seem to have difficulty complying with 
the law. And, to me, a lot of that is the management style.
    I would have to take a look at the different geographics of 
the country to answer your question. It is my hope that the 
mine operators in that region are some of the best in the 
country, you know, and do operate their mines as safe as they 
have the capability of doing.
    Mr. Altmire. It is not just the mine operators, because 
many mine operators, of course, operate mines within multiple 
jurisdictions, multiple regions. But it seems as though there 
are certain regions--even though mine operators operate in more 
than one region, there are certain regions that have better 
safety records than others. What is the reason for that?
    Mr. Main. Well, when we announced our plans to do the 
follow-up public hearings on the Upper Big Branch disaster, one 
of the things that we are going to be doing is holding a public 
forum to address one of the issues I think that you have 
raised, and that is the concerns that we have heard from the 
miners and from mining families about the culture of safety in 
that region and to try to do something that changes that 
culture to a more positive one.
    I think that, you know, there is an expression from miners 
and mining families in the area of the Upper Big Branch Mine 
that has raised serious concerns about the way that mine safety 
in those mines are managed and the fear that miners have and 
families have that you may not hear as much or any from some 
other regions of the country. That is something that we are 
taking a look at, with regard to the Upper Big Branch Mine.
    Mr. Altmire. And have you found, Secretary Main, that there 
is a correlation, either direct or indirect, between the number 
of citations for safety violations that are given out to a mine 
operator and the number of incidents that occur?
    Mr. Main. In cases, there is some correlation to that.
    I think, as a starting point, there are two factors that we 
would probably look at the most. That is the number of orders 
that a mine gets or receives. That is a sign that things are 
more out of control, as the saying goes, than one that would 
not be receiving a lot of orders. The second one would be a 
mine that has a large number of S&S violations.
    And we are trying to provide some parity with that 
analysis, in that a mine with 35 miners running an underground 
coal mine, let's say, with 35 miners having one or two mining 
units, compared to a mine employing 900 miners and 15 mining 
units. I mean, we have to be able to look at those comparisons 
to make those judgments.
    But, all things considered, S&S violations, orders, and 
high accident rates would be amongst things that we would look 
at to make those determinations.
    Mr. Altmire. Thank you.
    Secretary Michaels, very quickly, do you think it is 
appropriate, as we consider this bill moving forward this week, 
to have a distinction between coal mines, underground coal 
mines, which present very different challenges to surface metal 
mines and non-metal mines?
    Mr. Michaels. You know, I am not familiar with the mining 
industry because both surface mines and underground mines are 
covered by MSHA. I would defer to my colleagues on the panel 
here.
    Mr. Altmire. Secretary Main?
    Mr. Main. Yes. We have jurisdiction over all of the mines 
in the country. And I think it is very wise that Congress made 
that decision in 1977 to give all miners equal protection under 
the law.
    There are differences from one coal mine to another. There 
are differences from a coal mine to preparation plants. There 
are differences from a sand and gravel facility. There are 
differences from a cement facility. But all things considered, 
the way the law is constructed, there are different standards 
that apply to the coal side and the non-coal side to provide 
the kind of protections that, you know, we would like to have 
in place.
    And I think it is important to understand that miners that 
work at a sand and gravel facility have a right to as much 
protection as a miner does at an underground coal mine. Not to 
say that they face the same kind of consequences or conditions, 
but all those work sites, on their own, have various hazards 
that need to be dealt with. And, you know, some hazards you are 
going to find at a sand and gravel facility or at a cement 
facility is some of the same ones you are going to find at a 
coal mine.
    Mr. Altmire. Thank you.
    Chairman Miller. Thank you.
    Mr. Tierney? No questions?
    Well, thank you very much for your time and your expertise 
and your testimony. And, obviously, as we digest everything we 
are hearing today, we will get back to you. But thank you so 
much for all of your cooperation and help in drafting the 
legislation and bringing your experience to that. Thank you.
    The committee will hear from a second panel, at this point. 
We are going to swap out.
    Welcome to the committee, and thank you very much for 
agreeing to join us this afternoon.
    Mr. Stewart and Mr. Grayson, thank you. I know you have 
traveled some distance to get here, and we appreciate that very 
much.
    Let me go through the introductions of this panel for the 
audience and members of the committee.
    Mr. Stanley ``Goose'' Stewart worked as a coal miner for 34 
years and was an employee of the Upper Big Branch Mine in West 
Virginia for 15 years. He was close friends with many of those 
killed in the explosion at the mine in April. Mr. Stewart was 
on his way into the mine when the explosion occurred.
    Dr. R. Larry Grayson is a professor of energy and mineral 
engineering at Pennsylvania State University. He was the first 
associate director of the Office of Mine Safety and Health 
Research at the National Institute of Occupational Safety and 
Health. He chaired the Mine Safety Technology and Training 
Commission, established by the mining industry in 2006.
    Mr. Bruce Watzman is the senior vice president of 
regulatory affairs of the National Mining Association. He 
monitors Federal health and safety policy for the U.S. mining 
industry.
    Mr. Cecil Roberts, Jr., is the president of the United Mine 
Workers of America and has served in this capacity since 1995. 
He is a sixth-generation coal miner and serves on the Safety 
and Occupational Health Committee of the AFL-CIO.
    Mr. Jonathan Snare is a partner in the Morgan Lewis labor 
and employment practice. Mr. Snare's practice focuses on labor-
related issues, including occupational safety and health, mine 
safety and health, and whistleblower cases. During the Bush 
administration, he served as Deputy Solicitor of Labor and 
Acting Solicitor of Labor under Secretary Chao.
    Ms. Lynn Rhinehart is the general counsel to the AFL-CIO. 
She is a former aide to Senator Howard Metzenbaum of the Senate 
Labor Committee and a member of the Obama transition team for 
the National Labor Relations Board. From 2007 to 2009, she 
served as co-chair of the ABA Committee on Occupational Safety 
and Health.
    Thank you all for joining us. We look forward to your 
testimony. Again, your written statements will be included in 
the record in their entirety, and you should proceed in the 
manner in which you are most comfortable.
    Also, if you want to comment on something that you heard 
back and forth between the members of the committee and the 
witnesses, feel free to do so. That would, obviously, be 
helpful to the Members, I think, as we sort through the record 
as we go forward with this legislation.
    But welcome. And, again, thank you.
    Mr. Stewart, we going to begin with you. And welcome back 
to the committee.

           STATEMENT OF STANLEY STEWART, COAL MINER,
                     UPPER BIG BRANCH MINE

    Mr. Stewart. Thank you, Chairman Miller, for allowing me to 
speak here today.
    My name is Stanley Stewart. Most people know me as 
``Goose.'' I have been a coal miner for 34 years, the last 15 
with Performance Coal at the Upper Big Branch Mine in Montcoal, 
West Virginia, and I am a Massey employee.
    I was underground April 5th when UBB exploded. Luckily for 
me and my crew, we were able to escape. I am here to speak for 
my 29 brothers who did not make it out.
    This tragedy should never have happened in America today. 
The April 5th explosion was a 1920s-style explosion, and we 
should be beyond that. The only reason 400 men didn't die is 
because of the mechanization used in coal mining today.
    Something needs to be done to stop outlaw coal companies 
who blatantly disregard the laws. Many things were wrong at the 
UBB mine. Management regularly violated the law. Some examples: 
Concerning advance warning on inspector arrivals, a section 
boss would be called from outside and he would be told, ``It's 
cloudy outside,'' or, ``There's a man on the property,'' 
meaning there is an inspector outside, get things right to pass 
the inspection.
    In 2009 we were made, by Chris Blanchard, the President of 
Performance Coal, to cut coal going into our air supply. We 
mined this way for over 2,000 feet, and several months later we 
were allowed to mine the legal way. On January 4, 1997, an 
illegal air change was made during our shift. An overcast was 
knocked out, short-circuiting our air, and it caused an 
explosion. It wasn't as big as April 5th, but I thought I was a 
dead man, and I know it was covered up.
    Around 2003 or 2004, there was a bleeder that spewed 
methane in the mine. The methane readings were 5 percent at the 
power center, and at least 20 percent further back in the mine. 
We were made to sit underground for nearly an hour before 
management let us leave the mine. When we would move the 
longwall to a new face, we were always made to load coal before 
all the shields and ventilation were in place, so someone could 
call Mr. Blakenship and say we were ``in the coal.''
    In the months before the explosion, I worked on Headgate 
22. My section foreman consistently got low air readings. He 
would complain to upper management. He would be berated, told 
to go back to work or he would lose his job, and the air was 
never fixed, so he quit. The longwall worried me because of the 
constant ventilation problems, and with so much methane being 
liberated and no air moving, I knew that area was a ticking 
time bomb.
    There were at least two fireballs on the drum of the 
shearer on the longwall, according to separate reports of 
miners working those shifts. That meant methane was building in 
the area, proving ventilation problems and possible methane 
monitor problems. I have worked the longwall in dust so thick I 
couldn't see my hand in front of my face and couldn't breathe 
because of improper ventilation. I once asked the assistant 
coordinator why we didn't have proper air on the longwall. I 
was told, ``It's funny, you are the only one to say anything 
about it: My response was, ``That's because everyone is too 
afraid to lose their jobs if they say anything.''
    In my years of working for Massey, I feel they have taken 
coal mining back to the early 1900s using three principles: 
fear, intimidation, and propaganda. I know personally that 
Massey sends a safety director to the hospital to pressure 
miners hurt on the job back to work and have them sit in the 
office so their accident doesn't get listed as a ``lost time 
accident.'' This bill needs to require truthful reporting 
because with a fabricated safety record, MSHA can't target the 
right mines for a Pattern of Violation.
    In my first few years at Massey I saw more men maimed and 
killed than in my 20 years in the union. This is why the UMWA 
was formed in 1890, to protect and give miners rights. A coal 
mine is the worst place in the world to work without rights, 
and at Massey you have very little rights. You knew if you 
stood up to them you would be out of a job.
    This bill must be passed to give all miners rights. If this 
bill is passed, hopefully miners will feel they can stand up to 
the Massey empire or other rogue companies and protect 
themselves without retaliation. With the current system, a 
Pattern of Violations must be fixed so the outlaw companies 
must be made to understand that they can't continue to put 
miners' lives at risk to turn a profit. It puts teeth in the 
law. It makes retaliating against miners that report violations 
to MSHA or refuse to work in unsafe conditions subject to a 
fine, and by making retaliations subject to a criminal penalty.
    Outfits like Massey will always find a way to fire you 
regardless of the laws. That is why it is important to have 
rights to challenge any unfair firing in an underground coal 
mine. With a union you have that right. Without a union, this 
bill gives miners protection to fight firings.
    This bill must pass to keep companies honest or to make 
them pay the price. Partisanship needs to be set aside on this 
legislation because human lives are at stake. Twenty-nine 
families are suffering from this needless explosion, their 
communities are suffering from their deaths, and I myself am 
suffering.
    In closing, I simply ask you to remember what the 
Constitution says: of the people, by the people, and for the 
people. People's lives are at stake. It is very serious down in 
those mines, and those people need protection. All I ask is 
that you do the right thing and help them. Thank you.
    Chairman Miller. Thank you very much.
    [The statement of Mr. Stewart follows:]

           Prepared Statement of Stanley Stewart, Coal Miner,
                         Upper Big Branch Mine

    My name is Stanley Stewart. Most people know me as ``Goose''. I've 
been a coal miner for 34 years the last 15 years with performance coal 
at the Upper Big Branch (UBB) mine in Montcoal, West Virginia, and am a 
Massey employee.
    I was underground April 5th when UBB exploded. Luckily for me and 
my crew, we were able to escape. I'm here to speak for my 29 brothers 
who did not make it out. This tradedy should never have happened in 
America today. The April 5th explosion was a 1920s style explosion and 
we should be beyond that. The only reason 400 men weren't killed, is 
the mechinazation used in coal mining today.
    Something needs to be done to stop outlaw coal companies who 
blatently disregard the laws. Many things were wrong at Upper Big 
Branch such as low air constantly.
    Management regulary violated the law concerning advance warning on 
inspector arrivals. A section boss underground would be called from 
outside and be told, ``it's cloudy outside'' or ``there's a man on the 
property'' meaning there is an inspector outside, get things right to 
pass inspection.
     In 2009, we were made by Chris Blanchard, the president of 
performance coal, to cut coal going into our air supply. We mined this 
way for 2,000 feet and several months later we were allowed to mine the 
legal way.
     On January 4, 1997, an illegal air change was made during 
our shift. An overcast was knocked out and as a result there was an 
explosion. It wasn't as big as April 5th, but I thought I was a dead 
man and I know it was covered up.
     On July 26, 2009 our crew on the second shift was told by 
upper management to change from sweep to split air in headgate 21, 
where the long wall is now. We knocked stoppings while crews were still 
working, which can short circuit their air supply. This violated MSHA 
requirements to evacuate miners when changing the ventilation system, 
but upper management made it clear we had to do this job. I'm not sure 
if MSHA was aware of the whole situation. But it scared me and when I 
got home I wrote it down.
     On headgate 22 the tracks were never laid within \1/2\ 
mile from the mantrip to our section. We had a buggy for emergency 
transport that we used to travel from the mantrip to our section but it 
got a flat tire. It was not fixed until the inspectors wrote them up 
for it. After that we weren't allowed to ride it from the mantrip to 
the section so it wouldn't breakdown again.
     Around 2003 or 2004 there was a bleeder that spewed 
methane in the mine. The methane readings were 5% at the power center 
so it was at least 20% further back in the mine. We were made to sit 
underground for nearly an hour before management let us leave the mine.
     A young man I personally know was working at a Massey mine 
as a fireboss and was told by upper management to fix the books to 
proper air readings when the section had virtually no air. He was so 
angry he quit Massey. I would provide his name privately.
     When moving the long wall to a new face we were made to 
load coal before all the shields and ventilation were in place so 
someone could call Mr. Blakenship to say we were ``in the coal''.
     In the months before the explosion on headgate 22, my 
section foreman got consistently low air readings and complained to 
upper management. He would be berated and told to go back to work or he 
would lose his job, and the air was never fixed. He was afraid 
something would happen so he quit.
     The long wall worried me because of the constant 
ventilation problems and with so much methane being liberated and no 
air moving I felt that area was a ticking time bomb.
     There were at least 2 fireballs on the drum of the shearer 
on the long wall according to separate reports of miners working those 
shifts. That meant methane was building in that area proving 
ventilation problems. The questions I have are how could methane build 
to that point where a fireball could start? How could this happen if 
the methane dectectors had been working?
     I've worked the long wall in dust so thick I couldn't see 
my hand in front of my face and I couldn't breathe because of improper 
ventilation. I once went to the assistant coordinator and asked why we 
didn't have proper air on the long wall face. I was told ``it's funny 
you're the only one to say anything about it.'' My response was 
``that's because they are too afraid of to lose their jobs to say 
anything.''
     I've worked on the continuous miner section as a miner 
operator and more often than not the dust would be so thick I'd shut 
off the machine to let the air clear to see if the job was being done 
properly.
    In my years of working for massey I feel they have taken coal 
mining back to the early 1900s using 3 principles; fear, intimidation 
and propaganda. I know personally that Massey sends a safety director 
to the hospital to pressure miners hurt on the job to return and sit in 
the office so their accident doesn't get listed as a ``lost time 
accident''.
    I notice that one criteria for the new pattern of violation in HR 
5663 is a mine's accident and injury rates. This bill needs to do 
something to require truthful reporting because with a fabricated 
safety record, MSHA will fail to target the right mines for a pattern 
of violation.
    In my first few years at Massey I saw more men maimed and killed 
than in my 20 years in the union. This is why the UMWA was formed in 
1890; to protect and give miners rights. A coal mine is the worst place 
in the world to work with no rights and at Massey you have very little 
rights. You knew if you stood up to them you'd be out of a job.
    I wonder what will happen to me for speaking out now.
    New legislation needs to be passed to give all miners some kind of 
rights. If this bill is passed, hopefully enough miners will feel they 
can stand up to the Massey empire or any other rogue company and 
protect themselves without retaliation. There's nothing wrong with 
mining coal the right way. I did it for 20 years for Peabody Coal, a 
UMWA mine, so I know it can be done.
     The current system of pattern of violations (POV) must be 
fixed so the outlaw companies must be made to understand they can't 
continue to put miner's lives at risk to turn a profit. One big thing 
this bill fixes is keeping unsafe mines from contesting violations as a 
way to avoid being put on the POV.
     It puts teeth in the law by making it a felony and not a 
misdemeanor where there is advance notice of an inspection. It makes 
retaliating against miners who report violations to msha or refuse to 
work in unsafe conditions subject to a fine and it sends a strong 
message by making retaliation subject to criminal penalty.
     Big outfits like Massey will always find a way to fire you 
regardless of the laws. That is why it is important to have rights to 
challenge any unfair firing in an underground coal mine. With a union 
you have that right. Without a union, this bill gives miners protection 
to fight firings that are not based on ``good cause''.
     If a miner reports violations and msha shuts down a mine 
until its safe, miners get full pay. Today they only get 4 hours pay 
and the company doesn't always pay that. In my case I've not been paid 
at all when the mine was shut down or we were sent home early for 
unsafe conditions.
    This bill must pass to keep coal companies honest or to make them 
pay the price for their unscrupulous behavior. Partisanship needs to be 
set aside on this legislation because human lives are at stake.
    29 familes are suffering right now from this needless explosion, 
the communities are suffering from their deaths and I myself am 
suffering.
    In closing, I simply ask all of you to remember what the 
constitution says, ``of the people, by the people and for the people.'' 
People's lives are at stake. It's very serious down in those mines and 
those people need protection. All I ask is that you do the right thing 
and help them.
    Thank you.
                                 ______
                                 
    Chairman Miller. Mr. Grayson.

  STATEMENT OF DR. R. LARRY GRAYSON, PROFESSOR OF ENERGY AND 
       MINERAL ENGINEERING, PENNSYLVANIA STATE UNIVERSITY

    Mr. Grayson. Good afternoon, Mr. Chairman and distinguished 
members of the committee.
    As a former UMWA coal miner myself, mine superintendent, 
and manager of mine safety and health research at NIOSH, I 
really thank you for the opportunity to discuss provisions in 
H.R. 5663.
    It is agonizing that we are again at a point where a major 
underground coal disaster has shattered the lives of so many 
people, and that industry and MSHA just seem to be powerless 
from stopping these disasters. We had only one such event 
during the period of 1991 through 2000; thus, it appears it can 
be done.
    The tripartite Mine Safety Technology and Training 
Commission, which I chaired in 2006, indicated the key to 
achieving this goal includes processes that, number one, 
require major hazard-related risk management which must now 
involve the screening of mines with high risk for disasters and 
serious injuries; second, facilitate the creation of a safety 
culture of prevention of hazardous conditions that can lead to 
major hazardous events, and, I will add, serious injuries as 
well.
    It is imperative that these processes must drive adoption 
of best practices in building a culture of prevention. The 
objective is to ensure that everyone in the organization 
involved with the mine, top to bottom, performs the critical 
task of their jobs, aimed at removing threatening conditions 
with painstaking thoroughness. The same approach must be used 
in MSHA.
    The Commission noted that industry has to fundamentally 
change the management approaches and the work practices taken 
to fulfill basic safety requirements. We recognize that simple 
regulatory compliance alone is not sufficient to mitigate 
significant risk.
    Now since 2007, my graduate student and I worked on 
developing an effective and straightforward tool to analyze the 
risk of underground coal mines. The Safe Performance Index 
model contains essentially the same elements discussed in the 
new Pattern of Recurring Non Compliance or Accidents provisions 
for screening high-risk mines. The accident-related elements 
that we used include the no days-lost incidence rate, the non-
fatal days lost incidence rate and adjusted severity measure, 
where statutory charged days are added in there.
    The citation-related elements we used included the number 
of citations for 100 inspection hours, the number of S&S 
citations per 100 inspection hours, and the number of 
unwarrantable failure and imminent danger withdrawal orders per 
1,000 inspection hours. I will give some detailed results on 
the SPI modeling of an 82-mine sample in my more extensive 
written comments.
    The more salient points related to H.R. 5663 are summarized 
as follows:
    Our sample represents about 18 percent of the producing 
mines, and I am convinced that the SPI works very well at 
objectively determining high-risk mines. Similar discriminatory 
power could be achieved with an appropriate application of the 
new Pattern of Recurring Non Compliance or Accidents provisions 
of H.R. 5663. I believe the key to success depends on a 
judicious weighting of the components delineated in the 
subsection on rulemaking, as specified in paragraph (8)(B), to 
determine the threshold criteria.
    The worst-performing 10 percent of mines in our study were 
characterized by different measures. Some had a high injury 
rate and a high elevated citation rate, while others had either 
a very high injury rate or a very high elevated citation rate. 
Four MSHA potential Pattern of Violation mines were on the 
list, and one was the longwall mine.
    Three of the worst-performing eight mines got there because 
of a terrible severity measure. Two of them had good S&S and 
order rates. Thus, I reemphasize that the injury experience 
must be integrated with the citation experience in considering 
mines for pattern status.
    Regarding benchmark criteria for the 90-day evaluations, I 
suggest that the major hazard-related S&S citations and orders 
should immediately have a higher benchmark of the 25th 
percentile of the top-performing mines. A pattern mine should 
alternatively be permitted to pass the benchmark for citations 
if the S&S rate is reduced by 70 percent, provided that 
reduction of 70 percent takes the mine's S&S rate to one that 
is below the mean for the grouped mines. The target of having 
mines in the top 25th percentile set forth in the bill for 
reducing the injury rate appears appropriate.
    Regarding termination of pattern status, both the S&S rate 
and the order rate need to be considered. And the 80 percent 
reduction of the rates needs to be coupled with the caveat that 
the improved S&S and order rates should both be less than the 
mean for group mines. For injuries, the performance benchmark 
of the 25th percentile of top-performing mines is a reasonable 
challenge for trying to build a culture of prevention.
    The goal in this legislation should be to ensure that a 
low-performing mine that deserves to be placed on pattern 
status should be compelled to build a new safety culture that 
focuses day to day on preventing major hazard-related 
conditions and lost-time injuries.
    I commend the committee for inclusion of several important 
provisions: First is the independent investigation of mining 
disasters. Second is ensuring that MSHA inspects mines during 
normal operations on all shifts. I do recommend that MSHA 
inspectors should also perform a major hazard sweep at a mine 
at the beginning of a quarterly inspection. Third is allowing 
MSHA to invoke justifiable mitigating circumstances for an 
identified pattern mine.
    In closing, I do believe that the new Pattern of Recurring 
Non Compliance or Accidents provisions will be a much-needed 
improvement over the current Pattern of Violations process. The 
1-year remediation process, coupled with quarterly monitoring 
of performance, should inculcate in pattern mines adoption of 
practices and processes aimed at building a safety culture of 
prevention which is necessary to eliminate mine disasters and 
ultimately all fatalities and serious injuries.
    This concludes my oral comments. I would be happy to take 
questions.
    Chairman Miller. Thank you.
    [The statement of Mr. Grayson follows:]

 Prepared Statement of R. Larry Grayson, George H. Jr. & Anne B. Deike 
 Chair in Mining Engineering; Professor, Energy & Mineral Engineering, 
                     Pennsylvania State University

    Good afternoon Mr. Chairman and other distinguished members of the 
Committee. As a former UMWA coal miner, mine superintendent and manager 
of mine safety and health research at NIOSH, I very much thank you for 
the opportunity to discuss certain provisions in Miner Safety and 
Health Act 2010, H.R. 5663.
    It is agonizing that we are again at a point where a major 
underground coal mine disaster has shattered the lives of so many 
people, and that industry and MSHA seem powerless from stopping these 
disasters. In pursuing this legislation, our first priority must be to 
try to effectively prevent underground coal mine disasters from ever 
occurring again. We had only one such event during the period 1991-
2000, thus it appears that it can be done. At the same time, we need to 
focus on the goal of preventing all fatalities and all serious 
injuries, especially those giving full and partial disabilities. 
Eventually we want to reduce lost-time accidents at the vast majority 
of mines to zero as well.
    In my opinion, and the opinion of the tripartite Mine Safety 
Technology & Training Commission, which I chaired in 2006, the key to 
achieving these goals are setting up processes that will:
    1. Require major hazard-related risk management as the first 
priority, which now must involve the screening of mines with high risk 
for disasters and serious injuries; and
    2. Facilitate the creation of a safety culture founded on 
prevention of hazardous conditions that can lead to major-hazard 
events, fatalities or serious injuries.
    In my opinion, it is imperative that any initiative that focuses on 
these processes must also focus on driving adoption of best practices 
in building and maintaining a culture of prevention. The objective is 
to ensure that everyone in the organization involved with the mine, top 
to bottom, performs the critical tasks of their jobs, aimed at removing 
threatening conditions, with painstaking thoroughness. The same 
approach must be used in MSHA regarding its supervisors and inspectors, 
who are the last line of defense in preventing disasters.
    In its report, the Mine Safety Technology & Training Commission 
stated that ``The commission strongly believes that companies which do 
not pursue the outlined approaches aimed at fulfilling fundamental 
safety requirements should not be permitted to operate underground coal 
mines.'' In our collective minds, and in complete tri-partite 
consensus, we urged the underground coal industry to adopt the 
approaches we outlined. Our most succinct, relevant closing paragraph 
noted the following:
    In particular in order to move forward safely and productively, the 
commission believes that a number of broad issues framed by our 
recommendations deserve serious attention, and should be used to 
fundamentally change the management approaches and work practices taken 
to fulfill basic safety requirements. First and foremost, risk-based 
decision-making must be emphasized, employed, and improved in all 
aspects of design, assessment, and management. It is imperative that a 
risk-assessment-based approach be used, founded on the establishment of 
a value-based culture of prevention that focuses all employees on the 
prevention of all accidents and injuries. Importantly, every mine 
should employ a sound risk-analysis process, should conduct a risk 
analysis, and should develop a management plan to address the hazards 
and related contingencies identified by the analysis; simple regulatory 
compliance alone is not sufficient to mitigate significant risks.
    Next I will focus on a methodology to screen for high-risk mines 
that my graduate student and I worked on beginning in 2007, and which 
contains essentially the same elements discussed in the new Pattern of 
Recurring Non Compliance or Accidents provisions (Section 202, 
paragraph (e)(8)) of H.R. 5663. The accident-related elements we used 
included:
     The no days-lost incidence rate,
     The non-fatal days lost incidence rate, and
     The severity measure, calculated as the total statutory\1\ 
days charged plus restricted work days plus lost work days multiplied 
by 200,000 and the result divided by the employee hours worked.
---------------------------------------------------------------------------
    \1\&Some injuries or illnesses are of such a degree of severity 
that a standard time charge of lost workdays has been adopted by MSHA, 
called statutory days charged. For a single incident, the charge can 
range from 6000 for a fatality or full disability to a lower amount for 
a partial disability or loss of a body part.
---------------------------------------------------------------------------
    The citation-related elements we used included:
     The number of citations per 100 inspection hours,
     The number of S&S citations per 100 inspection hours, and
     The number of withdrawal orders per 1000 inspection hours.
    One of three methods we pursued for safety risk analysis, which was 
follow-up work on the risk assessment recommendation made by the Mine 
Safety Technology & Training Commission, was to develop an effective 
and straight-forward tool that any company could use to analyze the 
risk levels of its underground coal mines.
    As does paragraph (e)(8) of Section 202 relating to the new Pattern 
of Recurring Non Compliance or Accidents provisions, the Safe 
Performance Index (SPI) embraces all of the significant inputs for 
screening mines for high risk, from both the citation and injury 
perspectives. It similarly uses normalized measures. Fatalities and 
disabilities were brought into the risk calculation through use of the 
Severity Measure, because their serious nature is highlighted better 
and has more influence in determining the total risk level of a mine. 
In my opinion, we used the SPI methodology to analyze several groups of 
mines with robust results in targeting high-risk mines.
    In a recent analysis of a sample of 82 underground coal mines, the 
top-performing 10% of mines with the highest SPIs were characterized by 
low injury rates and low elevated citation rates (see Table 1). The 
following points characterize these best or safest-performing mines:
     All of them had an non-fatal days lost incidence rate 
(NFDL IR) and severity measure (SM/100) much less than the averages for 
all mines.
     All of them had a significant and substantial citation 
rate per 100 inspection hours (SS/100 IH) and withdrawal orders rate 
per 1,000 inspection hours (O/1000 IH) much less than the averages for 
all mines.
     Seven of the eight mines had no orders, including three 
longwall mines.
     Four pilot mines and four longwall mines were in the list.
     Significantly, no mines on the MSHA list of potential 
pattern of violations made the list.

                               TABLE 1.--TOP 10% SPI BESTPERFORMING MINES
----------------------------------------------------------------------------------------------------------------
              Mine ID                   SPI       NDL IR    NFDL IR     SM/100    C/100 IH  SS/100 IH  O/1000 IH
----------------------------------------------------------------------------------------------------------------
Pilot Mine 3.......................       99.8       0.00       0.00       0.00       0.57       0.00       0.00
Pilot Mine 4.......................       98.0       0.00       0.00       0.00       1.04       1.66       0.00
LW-19..............................       97.5       5.74       0.00       0.00       0.45       0.49       0.00
LW-25..............................       96.4       0.32       0.30       0.12       2.09       1.44       0.43
Pilot Mine 12......................       96.3       3.19       0.00       0.00       2.29       1.87       0.00
LW-26..............................       96.1       0.26       0.47       1.02       1.60       0.77       0.00
Pilot Mine 14......................       96.0       9.39       0.00       0.00       0.60       0.72       0.00
LW-14..............................       95.4       2.10       1.02       0.22       2.23       1.66       0.00
Scaled Averages....................  .........       3.67       3.67       3.67       3.67       3.67       3.67
----------------------------------------------------------------------------------------------------------------

    On the other hand, the worst-performing 10% of mines with the 
lowest SPIs were characterized by variable and different measures (see 
Table 2). The following points characterize these worst-performing or 
high-risk mines:
     For three of the mines, a very high rate for withdrawal 
orders per 1,000 inspection hours (O/1000 IH) got them on the list.
     For three of the mines, a very high rate for severity 
measure (SM/100) got them on the list
     The remaining two mines had four or five metrics that 
significantly exceeded the means for the metrics.
     Importantly, four MSHA potential pattern of violation 
mines were on the list, one being a longwall mine.

                            TABLE 2.--BOTTOM 10% SPI POORESTPERFORMING MINES
----------------------------------------------------------------------------------------------------------------
              Mine ID                   SPI       NDL IR    NFDL IR     SM/100    C/100 IH  SS/100 IH  O/1000 IH
----------------------------------------------------------------------------------------------------------------
MSHA List-20.......................       59.3       3.70       6.77       0.20       8.69      10.00       9.77
MSHA List-6........................       52.1      14.65       7.06       2.28       6.61      10.42       9.46
MSHA List-18.......................       42.7       1.53       1.40       0.45       5.96       5.42      23.60
LW-22..............................       41.2       3.74       6.84       5.15       5.42       3.35      17.71
Pilot Mine 29 also LW-3............       40.1       2.93       2.54      27.14       1.27       1.03       0.40
MSHA List-11 also LW-31............       33.9       3.89       4.27       1.98       5.92       7.46      23.67
LW-2...............................       32.3       2.92       4.23      29.20       2.14       1.97       0.79
MSHA List-3........................        0.0       3.46       4.65      37.29       6.57       6.75       5.46
Scaled Averages....................  .........       3.67       3.67       3.67       3.67       3.67       3.67
----------------------------------------------------------------------------------------------------------------

    The sample of 82 underground coal mines represents approximately 
18% of such active producing mines. In our SPI calculations we used all 
citation and injury data extracted from the MSHA Data Retrieval System, 
not just final orders. The rationale was to look at a one-year snapshot 
of the risk variations in underground coal mines, and to identify those 
with excess risk. I am convinced that the SPI works very well in 
objectively determining low-risk mines from high-risk mines. I believe 
ultimately that similar discriminatory power could be achieved with an 
appropriate application of the provisions of the new Pattern of 
Recurring Non Compliance or Accidents provisions (Section 202 paragraph 
(e)(8)) of H.R. 5663. In my opinion, the key for success depends on a 
judicious weighting of the components delineated in paragraph (8)(B) to 
determine the threshold criteria, which will lead to an appropriate 
screening of high-risk mines that are dangerous because of a very high 
level of serious injuries or a very high level of elevated citations, 
or high levels of both. Realizing that weighting factors will likely be 
determined through rulemaking, I emphasize, however, that the weighting 
factor applied to the Severity Measure, including statutory days 
charged for fatalities and disabilities should not be downplayed. 
Disabilities and serious injuries to miners have an overwhelming and 
inestimable impact on them and their families.
    Other very important features of H.R. 5663 concern the remediation 
of conditions and/or the injury experience of a mine placed on pattern 
status, the benchmark criteria for continuation of the remediation 
effort, and the one-year benchmark criteria for termination of pattern 
status. Related to these aspects, the Mine Safety Technology & Training 
Commission stressed the need for all underground coal mines to build a 
culture of prevention that involves all mine personnel from top to 
bottom. Our goal in this legislation is to ensure that a mine that 
deserves to be placed on pattern status should truly be involved in 
building a new safety culture that focuses day-to-day on preventing 
major hazard-related conditions and lost-time injuries. It is difficult 
to say how long this process could take for a specific mine, but most 
excellent-performing mining companies who have built such a culture 
will tell you that it is more than a year. However, these companies 
generally were not pressed as severely as they would be in pattern 
status, and were very deliberative in selecting the tools and practices 
they thought would be most effective. A one-year period in pattern 
status, in my opinion, would enhance the probability that any mine in 
such status would systematically focus its remedial efforts to ensure 
that the 90-day benchmarks would be achieved, and another withdrawal 
order would not be issued. The cumulative effect of the successive 90-
day evaluations would likely be to inculcate the processes and 
practices employed into daily work routines.
    Regarding the benchmark criteria for the 90-day evaluations, a 
pattern mine should be challenged to have high goals, but I believe 
that the first-quarter evaluation is somewhat steep for a mine that has 
a `bad' S&S citation record and which was likely chaotic in its 
approach to safety. I suggest that the challenge for the initial 90-day 
period would be to move the pattern mine to the top-performing 50th 
percentile of rates for all S&S citations but to the top-performing 
25th percentile of rates for all major hazard-related S&S citations. I 
believe that the target for reducing the injury rate is appropriate, 
primarily to significantly reduce a high Severity Measure, which would 
include statutory charges. Based on the historical evidence of the 
potential pattern of violations process, I agree that the pattern mine 
should alternatively be permitted to `pass' the benchmark for citations 
if the S&S rate is reduced by 70 percent with the caveat that the 70-
percent reduction takes the mine's S&S rate to one that is below the 
mean for mines of similar size and type. The following 90-day 
evaluations could then seek the 35th percentile for the S&S citation 
rate and injury rate, and a 70-percent reduction for the S&S citation 
rate, provided the rate is below the mean value for mines of similar 
size and type. I again suggest that major hazard-related S&S citations 
should have the higher benchmark of the 25th percentile. In the end, 
application of these benchmark criteria would logically reflect the 
intent that a culture of prevention is being built and that a pattern 
mine pursues the types of safety performances achieved by the low-risk 
mines.
    Regarding termination of pattern status for a mine, as related to 
the mine's elevated-citation performance, I examined the eight mines of 
the 82 in my database which fell in the bottom 10% of the SPIs. The 
worst-performing S&S rate among the eight mines was 10.41 per 100 
inspector hours, and an 80% reduction of that would yield a rate of 
2.08, which is 57% of the mean rate for all 82 mines. On the other hand 
when looking at orders, the worst-performing order rate was 23.67, and 
an 80% reduction would yield a rate of 4.73, which would exceed the 
mean rate for all mines by 29%. Thus I suggest that both the S&S rate 
and the order rate needs to be considered in evaluating the citation 
performance, and that the 80% reduction in the S&S and order rates 
needs to be coupled with the caveat that the improved S&S rate and 
order rate should both be less than the mean of all mines in the mine 
size and type category.
    One other important issue must be noted here, that three of eight 
mines in the bottom 10% of mines in my SPI ranking got there because of 
a terrible Severity Measure. Two of them had good S&S and order rates. 
In these three cases, the Severity Measure reflected one fatality and 
several full and partial disabilities. One mine had a total of 16,098 
total lost days, including statutory days plus restricted day and lost 
work days. In the other two mines, each of which had total lost days 
above 6,000, full disabilities were involved. Thus, I re-emphasize that 
the injury experience at mines must be integrated with the citation 
experience in considering mines for pattern status.
    The 25th percentile mine's O/100 IH rate was 0.37; however, very 
significantly 20 of the 21 mines in the upper quartile had zero orders. 
In our database, 60 mines of the 82, or 71% of them, had a mean 
performance or better. Thus getting zero orders in our database mines 
was frequent, at nearly 25%; and doing better than the mean order rate 
was highly probable, at approximately 70%.
    Switching to the accident experience, my comments will focus on 
both the number of lost-time accidents and the Severity Measure as the 
25th percentile benchmark is examined. A total of 16 mines among 82, 
nearly 20% of them, had no lost-time accidents. Further 24 of 82, over 
29%, had one or no lost-time accidents. Among them were 5 of 18 small 
mines, 1 of 6 medium-size mines, and 5 of 40 longwall (large) mines. 
Specific to the Severity Measure, 22 mines, or nearly 27%, had less 
than 10 lost work days, and similar performances were achieved for the 
Severity Measure. Thus it appears that the 25th percentile is a 
reasonable challenge, particularly since our goal is zero lost-time 
accidents as well as zero fatalities and serious injuries. This is a 
major point the Mine Safety Technology & Training Commission also 
emphasized in its report. Further, with progressive improvement 
occurring responsive to the 90-day reviews, achieving the benchmark 
level apparently would be facilitated by the monitoring.
    I would like to commend the Committee for its inclusion of several 
important provisions. First, the Mine Safety Technology & Training 
Commission also recommended that an independent investigation of mining 
disasters should be conducted. Second, it was important to ensure that 
MSHA inspects mines during normal operations on shifts other than day 
shift; I personally recommend that MSHA inspectors also perform a 
major-hazard `sweep' of a mine at the beginning of a quarterly 
inspection. Third, the Committee was insightful about allowing MSHA to 
invoke justifiable mitigating circumstances for an identified pattern 
mine, because sometimes statistics may be deceptive and also because 
some accidents occur from fast-changing conditions.
    In closing, I do believe that the new Pattern of Recurring Non 
Compliance or Accidents provisions will be a much needed improvement 
over the current Pattern of Violations process. The one-year 
remediation process coupled with quarterly monitoring of performance 
should inculcate in pattern mines adoption of practices and processes 
aimed at building a safety culture of prevention, which is necessary to 
eliminate mine disasters and ultimately all fatalities and serious 
injuries.
    This concludes my written comments.
                                 ______
                                 
    Chairman Miller. Mr. Watzman.

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

    Mr. Watzman. Thank you, Mr. Chairman. We appreciate the 
opportunity to share our views on H.R. 5663.
    As backdrop to today's discussion, it is helpful to note 
that U.S. mining operations have decreased fatal and nonfatal 
injuries by 72 percent and 64 percent, respectively, over the 
last two decades. Eighty-seven percent of all U.S. mines worked 
last year without a single lost-time injury. Those trends 
sustained our dedication to injury-free mining, and we expect 
2010 will close with more than 85 percent of all U.S. mines 
operating without a single injury.
    The tragedy at the Upper Big Branch mine in April, however, 
was an abrupt interruption to the positive trend, and has, 
appropriately, caused all of us to reexamine the adequacy of 
the industry's current safety and health practices and the 
existing statutory and regulatory authorities to achieve that 
goal.
    While there are many voluntary initiatives, technology 
advances, and innovations in miner training and safety 
awareness underway in U.S. mines today, today's hearing focuses 
on legislation to address the role and the enforcement 
authorities of the Mine Safety and Health Administration and 
the relevant rules that govern their actions, the actions of 
mining operations, and the workforce.
    In support of our shared safety and health goals, we have 
looked at the proposed legislation within the framework of the 
following principles:
    Will it improve miner safety and health, our number one 
priority?
    Does it ensure greater transparency in the regulatory, 
investigative, and enforcement process?
    Will it build upon, rather than dismantle, the positive 
features of the existing law and regulations that have 
contributed to improvements?
    Does it avoid additional layers of enforcement, penalties, 
and other actions that are already provided for under the law 
but not fully utilized?
    Does it provide penalties that are commensurate with the 
severity of the violation?
    Will it protect due process rights, and will it maintain a 
robust domestic mining industry that meets the needs of the 
American people while maximizing the safety and health of its 
workforce?
    We have used this framework to identify omissions in the 
proposal that merit attention, provisions that basically align 
with these principles and that the industry could support with 
some modification, and provisions that are counter to these 
principles. And all of these are discussed in our written 
submittal.
    Consistent with our principles, NMA supports improvements 
in the Nation's mine safety and health laws that target 
recalcitrant operators, create fair and uniform procedures for 
enforcement, provide transparency in the development and 
administration of regulatory requirements, focus resources on 
problem areas, and encourage the development and implementation 
of performance-improving processes that are outside the bounds 
of the current regulatory structure.
    We believe that before embarking upon a comprehensive 
overhaul of the Miner Act, there should be a clear-eyed 
assessment of whether fundamental components of the existing 
law are being properly and fully executed.
    As Representative Capito touched on, there are many areas 
that have been identified by the Assistant Secretary that are 
in need of attention. However, we believe that H.R. 5663 fails 
to address these fundamentals, raising real-world questions 
about its effectiveness. For example, when half the inspectors 
are new and the other half are not properly trained, as 
documented in the IG's recent report, won't adding more 
punitive and complex requirements aimed at mine operators only 
put more weight on an unstable foundation? If there is no 
strong correlation between S&S violation rates and injury 
rates, as documented in several analyses, what does this tell 
us about the effective implementation of the existing law? If 
injuries, incidents, or near misses arise more from at-risk 
behavior than from at-risk conditions, are we properly focusing 
the program at effectively allocating safety resources? If 
inconsistency in the application of the law is, as the 
Assistant Secretary has suggested, an impediment to regulatory 
certainty and compliance, won't we be better served by 
improving implementation rather than imposing more changes on 
inspectors and operators who are currently struggling to attain 
clarity, consistency, and credibility in the application of the 
safety law and regulations?
    Finally, are our shared safety objectives well served by a 
full-scale insinuation of MSHA into the complexities of mine 
management? We understand the call by members to address 
perceived shortcomings in MSHA's statutory and regulatory 
structure; indeed, we share many of these concerns with certain 
elements of MSHA's authority. However, we do not believe that 
sufficient attention has been given to the weaknesses in the 
execution of that existing authority. Absent such an 
evaluation, we believe the legislation layers harshly punitive 
and restrictive provisions over a flawed framework to the 
detriment of successful safety and health programs.
    Mr. Chairman, we remain ready to work with members of this 
committee on actions we should be taking, some of which I have 
outlined, just as we did before Congress enacted the Miner Act 
of 2006.
    Thank you. I would be happy to answer any of your 
questions.
    Chairman Miller. Thank you.
    [The statement of Mr. Watzman follows:]

      Prepared Statement of Bruce Watzman, Senior Vice President,
                      National Mining Association

    The National Mining Association (NMA) appreciates the opportunity 
to share our views on the Miner Safety and Health Act of 2010 (H.R. 
5663), legislation that has been introduced to amend the nation's mine 
safety laws.
    As backdrop to today's discussion, it is helpful to note that U.S. 
mining operations have decreased fatal and non-fatal injuries by 72 
percent and 64 percent respectively over the last two decades. Eighty-
seven percent of all U.S. mines operated without a single lost time 
injury in 2009. Those trends have sustained our dedication to injury-
free mining, and we expect 2010 to close with more than 85 percent of 
all U.S. mines operating without a single injury.
    The tragedy at the Upper Big Branch Mine in April was an abrupt 
interruption to that positive trend and has appropriately caused all of 
us to re-examine the adequacy of the industry's current safety and 
health practices and the existing statutory and regulatory authorities 
to achieve our goal. While there are many voluntary initiatives, 
technology advances and innovations in miner training and safety 
awareness underway in U.S. mines, today's hearing focuses on 
legislation to address the role and enforcement authorities of the Mine 
Safety and Health Administration (MSHA) and the relevant rules that 
govern their actions, the actions of mining operations and the 
workforce.
    In support of our shared health and safety goals, we have looked at 
the proposed legislation within the framework of the following 
principles:
     Will it improve mine safety and health--our number one 
priority;
     Does it ensure greater transparency in the regulatory, 
investigative and enforcement process;
     Will it build upon, rather than dismantle, the positive 
features of existing laws and regulations that have contributed to mine 
safety and health;
     Does it avoid additional layers of enforcement, penalties 
and other actions that are already provided for under the law, but not 
fully utilized;
     Does it provide penalties that are commensurate with the 
severity of the violation;
     Will it protect due process rights; and
     Will it maintain a robust domestic mining industry that 
meets the needs of the American people while maximizing the health and 
safety of its workforce?
    We have used this framework to identify omissions in the proposal 
that merit attention; provisions that basically align with these 
principles and ones the industry could support with some modification; 
and provisions that are counter to these principles.
    I would like, first, to turn to the omissions, which we believe 
could make significant contributions to miner safety and health:

I. Items of Omission
            A. Inspection and Enforcement Resources and Allocation
    The Committee has received testimony at earlier hearings that 
established that: (1) the Mine Safety and Health Administration's 
(MSHA) authority under existing law was adequate but often unexercised; 
and (2) improvement in the allocation and use of resources would enable 
the agency to direct attention to the places where they are most 
needed. For the most part, H.R. 5663 bypasses these fundamental issues 
and instead adds more punitive and complicated measures on top of an 
existing law the agency has not utilized to the fullest extent.
    Much attention was been devoted in prior hearings to the backlog of 
appeals of enforcement actions and penalties before the Federal Mine 
Safety and Health Review Commission (Commission). Yet, as this 
Committee has been advised in prior testimony, appeals of enforcement 
actions do not compromise the safety of miners because under the Mine 
Act, unlike most other laws, mine operators must abate violations 
before any hearing is provided or suffer closure of the mine.
    The backlog of existing appeals is symptomatic of more fundamental 
issues related to implementation of the existing law rather than a 
cause for changing the law. Testimony from the Committee's Feb. 23, 
2010, hearing identified a convergence of circumstances that have not 
only produced an increase in the number of appeals of citations and 
penalties, but also point to fundamental weaknesses in the existing 
law's implementation. There were substantial areas of agreement among 
all who testified at the February hearing on ways to address these 
circumstances.

1. Lack of Consistency in the Enforcement of the Law
    The Assistant Secretary testified that consistency in the 
application of the laws is critical to an effective mine safety program 
and requires ongoing training and review. He reported that a 
substantial number of highly experienced mine inspectors have retired, 
and almost 50 percent of the current inspectors have been hired in the 
past four years. Moreover, the Inspector General recently found that 56 
percent of the ``journeymen'' (those that have completed entry level 
training) inspectors have not completed mandated retraining, and 27 
percent do not believe the training provided is adequate for them to 
effectively perform their duties. Office of Inspector General, USDOL, 
Journeyman Mine Inspectors Do Not Receive Required Periodic Retraining 
(March 30, 2010). Specifically, the IG report found that, ``MSHA did 
not assure that its journeyman inspectors received required periodic 
retraining * * * inspectors may not possess the up-to-date knowledge of 
health and safety standards or mining technology needed to perform 
their inspection duties.''
    Fully trained and experienced inspectors are fundamental to a 
credible program. Again, as the Assistant Secretary advised the 
Committee, consistency requires effective and ongoing training at all 
levels--inspectors, District Managers and conference officers--to 
ensure inspectors ``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.'' Effective training of inspectors and 
managers is also important to assure consistency in the application of 
the law, including the characterization of any violation, because the 
criteria (e.g., likelihood and severity of possible injury, number of 
persons possibly affected, and negligence) are inherently subjective.
    Failure to address this critical component of the enforcement 
program is a shortcoming of the pending legislation. Inspector training 
programs must be improved and the delivery of training must be more 
frequent than the current requirement for two weeks training every two 
years. An effective understanding of the statutory requirements, as 
well an effective understanding of applicable interpretative case law 
are essential if the agency's enforcement is to achieve the objectives 
miners and mine operators expect. Moreover, this will reduce the number 
of citations challenged before the Commission as inspector actions 
conform to applicable case law rather than alleging statutory language 
needs to be included to justify unwarranted actions.

2. Changes in the Law & Regulations
    The significant turnover in MSHA's inspectors also coincided with 
substantial changes in the law under the MINER Act. At a time when new 
inspectors were coming on board and more than half of the experienced 
inspectors were not receiving retraining, they were all faced with an 
array of new standards they were expected to enforce. Moreover, the 
MINER Act and MSHA regulatory actions changed the civil penalty 
assessment system in terms of both the manner and amount of penalties 
for different types of citations. As the Assistant Secretary testified 
forthrightly, ``[t]hese changes can create a potential for inconsistent 
application of the Mine Act.''

3. Suspension and Revision of the Conference Process
    MSHA historically held safety and health conferences, when 
requested by mine operators, to discuss and resolve disputes over 
violations related to inspector findings. These conferences covered 
whether a violation existed or the seriousness and potential 
consequences of such violations--all factors that impact the level of 
the penalty for the violation as well as the consequences for future 
citations. The resolution of these matters often would result in no 
formal appeal being filed by the operator before the Commission. In 
February 2008, MSHA suspended the conference process for most 
violations. This had the perverse effect of pushing to the Commission 
the resolution of most of the violations and penalties that had been 
routinely resolved without any formal appeal. The process reinstated by 
MSHA a year later did little to relieve the Commission backlog because 
a conference is only provided after a penalty was assessed and after an 
operator appeals both the citation and the penalty to the Commission. 
As the chair of the Commission testified on Feb. 23, ``[t]he vast 
majority of our cases result in settlements.'' Indeed, many of these 
settlements involve the very citations and penalties that were 
previously resolved in a MSHA conference.
    The absence of a timely and meaningful conference process has not 
only contributed to and aggravated the backlog of appeals; it also has 
robbed the program of a time-proven tool that provided some assurance 
against the risk that inherently subjective factors would lead to 
arbitrary outcomes. As MSHA found in its rulemaking for the former 
conference process, ``the safety and health of miners is improved when, 
after an inspection, operators and miners or their representatives are 
afforded an ample opportunity to discuss safety and health issues with 
the MSHA District Manager or designee.'' 72 Fed. Reg. 13,624 (March 22, 
2007).
    We were not alone in recognizing the need to reinstate a 
transparent, independent conference process to address, prospectively, 
the case backlog before the Federal Mine Safety and Health Review 
Commission. The Assistant Secretary for MSHA has testified that, ``The 
option to hold conferences prior to the operator's 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.''
    Some believe this matter can be addressed by MSHA initiating 
administrative action to reinstate the conference process. We disagree. 
While it is correct that MSHA can reverse this administratively, the 
same actions that gave rise to this situation can be repeated in the 
absence of statutory conference authority. We believe that the pending 
bill should be amended to provide this authority.
            B. Inspection Activity and Resource Allocation Decisions
    The preceding discussion leads us to raise another fundamental 
question. Are we focusing our resources where they are most needed? 
Under current law, MSHA must inspect every underground mine four times 
a year and every surface mine twice per year. But this mandate does not 
translate into four days or two days of inspections annually. Rather, 
these inspections often last for weeks, months or year-round for some 
mines. Some underground mines, because of their size, not based on 
compliance history, experience 3,000-4,000 on-site inspection hours 
each year. There must be a better way to deploy the resources to where 
they are needed most.
    NMA believes it is time to consider a different way of deploying 
resources based upon safety performance. Under existing law, mine 
operators must immediately report all accidents and report quarterly 
all lost time injuries and reportable illnesses directly to MSHA. This 
has produced an extraordinary database that can be used to guide 
inspection activity and allocate inspection resources based on 
documented need and analysis related to safety performance and risks. 
It is far more likely that effective inspection activity will be based 
on documented need and analysis than on entirely subjective or 
ambiguous criteria, let alone on rote compliance with mandates of the 
Act.
    Some believe that MSHA lacks adequate resources to implement an 
effective enforcement program to focus on recalcitrant operators while 
still meeting the statutory mandates to inspect each underground mine 
four times a year and each surface mine twice yearly. We disagree. MSHA 
must be authorized and directed to utilize the information available to 
identify problem areas and allocate its inspectorate accordingly. Just 
as MSHA was able to identify 57 mines for targeted enforcement in the 
days immediately following the Upper Big Branch tragedy, so too must 
they utilize this same information to target mines that pose an 
immediate hazard to miner safety and health.
    Working together we believe a system can and must be developed that 
would refocus the number and scope of inspections based on performance 
and the adoption of verified and objectively administered performance 
goals. H.R. 5633 should be amended to provide MSHA with the authority 
to implement such a program.
            C. Plan Review
    Central to the functioning of an effective safety management 
program is the development and administration of a transparent process 
that provides for timely consideration of plans necessary to ensure the 
safety and health of miners. Unfortunately, MSHA's plan review process 
does not meet these goals.
    Today, MSHA's technical resources are challenged as operators face 
more difficult geologic conditions. As a result, plan consideration has 
become more difficult and less timely. MSHA, industry, academia and 
others are competing for the small pool of technical expertise required 
to assist in the development of mining processes and plans necessary to 
maximize resource recovery AND ensure the safety and health of the 
workforce. Imposing new punitive measures without addressing this 
fundamental need will do little to advance miner safety and health.
    At its core, the submission of plans culminates in a quasi-risk 
assessment process, the goal of which is multi-faceted. While plans are 
structured to comply with regulatory requirements, they are, in the 
broader sense, intended to foster a culture of prevention at the mine. 
Unfortunately, the lack of a defined process for the consideration of 
plans frustrates this objective and jeopardizes miner safety and 
health.
    H.R. 5663 will exacerbate this problem by expanding MSHA's 
authority without addressing the true underlying problem. Despite 
characterizations to the contrary, MSHA has the authority to revoke 
plans and has not been hesitant to do so. While this authority is cast 
in terms of plan revisions resulting from the violation of underlying 
standards or the identification of a potentially hazardous condition, 
the end result remains the same. The legislation's punitive plan 
revocation approach will worsen the plan process to the detriment of 
miner safety.
    Before we embark upon comprehensive overhaul of the Mine Act, there 
should be a clear-eyed assessment of whether fundamental components of 
the existing law are being properly and fully executed. The Assistant 
Secretary has set forth several areas that need attention: (1) improved 
implementation of the Mine Act; (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. None of these fundamental needs related to the 
implementation of the existing law are advanced by H.R. 5663.
    If half the inspectors are new and the other half are not properly 
trained, adding more punitive and complex requirements aimed at mine 
operators will only put more weight on a unstable foundation. In light 
of the information gathered at recent hearings regarding the 
substantial turnover in inspectors and the significant shortcomings in 
inspector training, maybe it is time to step back and perform an 
objective evaluation of: (1) the relationship (or correlation) between 
violation rates and injury rates at mines; (2) the source of injuries 
in terms of ``at risk'' conditions or ``at risk behaviors''; and (3) 
consistency and clarity in the application of the law.
    If there is not a strong correlation between significant and 
substantial violation rates and injury rates, what does that tell us in 
terms of the implementation of the existing law? This question was 
examined in 2003 where ICF Incorporated, in a report to the Department 
of Labor, entitled Mine Inspection Program Evaluation, stated that, 
``[t]he data indicate that the numbers and types of days lost injuries 
occurring over the past 5 to 10 years are not well correlated either 
quantitatively or qualitatively with the citations issued through 
inspection enforcement activities.
    If injuries, incidents or near misses are arising more from ``at 
risk'' behavior than''--at risk'' conditions, what does that tell us 
about the focus of the program and allocation of safety resources? And, 
if inconsistency in the application of the law is, as the Assistant 
Secretary has suggested, an impediment to regulatory certainty and 
compliance, wouldn't we be better served by focusing on improving 
implementation than foisting more changes on inspectors and operators 
struggling to attain clarity and consistency in the application of 
existing law and regulations?
    These are areas that should be examined and included as part of a 
broad effort to improve mine safety but unfortunately the pending bill 
is silent on these aspects.

II. Areas of Conceptual Agreement
    The National Mining Industry supports improvements in our nation's 
mine safety and health laws that would (1) create fair and uniform 
procedures for enforcement; (2) target recalcitrant operators; (3) 
provide for transparency in the development and administration of 
regulatory requirements; (4) provide flexibility to the government and 
mine operators to focus resources on problem areas; and (5) encourage 
the development and implementation of processes for improving 
performance that are outside the bounds of the current regulatory 
structure. While H.R. 5633 does not address all of these components 
and, in fact, moves in several areas in a direction that we feel will 
be detrimental to miner safety and health, there are selected aspects 
of the bill that move in this direction and are ones NMA could support, 
if modified.
            A. Independent Investigation Authority
    The establishment of an independent authority to investigate mine 
disasters has been debated for many years. Some have advocated the 
creation of a full-time authority along the lines of the Chemical 
Safety Board or the National Transportation Safety Board to 
investigate, report on and make recommendations for the prevention of 
future mining disasters. H.R. 5663 takes a more tailored approach by 
vesting this authority with the National Institute for Occupational 
Safety and Health, Office of Mine Safety and Health Research. Should 
such authority be granted, we support vesting this authority in NIOSH.
    We are concerned; however, that the language of the bill goes 
beyond what is necessary and will complicate an already difficult 
environment. Mine disaster investigations are tedious endeavors. The 
work of the investigative teams must be exhaustive and without 
reproach. MSHA has proven capable of undertaking such investigations, 
and their authority to do so must not be undermined. What has been 
called into question is the ability of the agency to examine its own 
actions during the period preceding and following the event. We believe 
this is the appropriate role for NIOSH.
    Rather than duplicating the investigatory activities already 
instituted by MSHA, applicable state authorities and other entities, 
NIOSH's role should focus solely on MSHA activities.
            B. Pattern of Violations
    NMA supports reform of the Pattern of Violation system. The current 
system is dysfunctional and has not served its intended purpose. 
Neither mine operators nor miners are able to navigate the current 
system. It lacks transparency, does not provide timely information, and 
is not structured to rehabilitate problem mines.
    H.R. 5663 represents a step in the right direction to correct the 
problems with the current system by looking at the mine's overall 
safety performance and not rendering POV determinations solely on the 
basis of subjective compliance determinations. We are concerned, 
however, that the provision is overly punitive and will not accomplish 
the sponsor's goal to rehabilitate problem mines. In his July 6 
response to the Inspector General's, June 23, Alert Memorandum, MSHA 
Sets Limits on the Number of Potential Pattern of Violation Mines to be 
Monitored, the Assistant Secretary stated the need for the, ``* * * 
creation of a screening system that will identify mines that 
chronically fail to implement proper health and safety controls.'' He 
went on to stress the need for the agency to, ``[f]ocus its POV 
enhanced inspection resources on those mine operators that have 
chronically failed to protect the safety and health of the miners and 
that continue to put miners at risk.''
    We support the Secretary's goal. We are, however, extremely 
concerned that under the pending legislation many of the decisions 
regarding implementation of a new POV program are vested with MSHA 
rather than proscribed in the legislation. MSHA created the 
dysfunctional system that exists today. We cannot afford to repeat that 
situation.
    We believe a workable system can be developed to properly identify 
and rehabilitate problem mines, and we look forward to working with 
this committee to develop to correct metrics to accomplish this goal.
            C. Modernizing Health and Safety Standards
    Title V of H.R. 5663 contains provisions that are, for the most 
part, applicable to underground coal mining. These provisions would 
update and expand existing requirements related to: (1) communicating 
information regarding dangerous conditions throughout the workforce; 
(2) updating rock dust standards; (3) examining the application of new 
technologies to protect miners; and (4) enhancing miner training.
    These subjects are conceptually ones the industry has long 
supported to improve miner safety and health, and NMA could support 
with slight modification.

III. Areas Where the Pending Legislation Will Not Advance Miner Safety
    As noted earlier, NMA supports improvements in our nation's mine 
safety and health laws that would (1) create fair and uniform 
procedures for enforcement; (2) target recalcitrant operators; (3) 
provide for transparency in the development and administration of 
regulatory requirements; (4) provide flexibility to the government and 
mine operators to focus resources on problem areas; and (5) encourage 
the development and implementation of processes for improving 
performance that are outside the bounds of the current regulatory 
structure. Unfortunately, the majority of the pending legislation is 
not ``rehabilitative'' as some have contended. Rather, the bill is 
harshly punitive and restrictive, creates new disciplinary authorities 
that have little to do with miner safety, and intrudes on management 
prerogatives and labor/management practices to the detriment of overall 
management of effective safety and health programs.
    Turning to those areas that NMA believes do not align with the 
principles we have articulated, we note the following:
            A. Mine safety progress is threatened by overly punitive 
                    provisions
    Rather than affording mine operators the flexibility needed to 
structure safety programs to meet individual mine site needs, the bill 
will thwart progressive programs that have led to dramatic safety 
improvements across U.S. mining. The expansion of potential liability 
will have the unintended consequence of causing companies to pare back 
their safety programs to the bare regulatory requirements rather than 
adopting new techniques, processes and practices that have led to 
health and safety improvements in the U.S. and elsewhere.
            B. Mine safety would not be advanced by additional MSHA 
                    workforce authority
    The bill would inject MSHA, for the first time, into matters that 
are reserved for management decision-making and/or the subject of 
labor/management negotiation. The expansion of MSHA authority into 
hiring and termination decisions, mine site staffing and operational 
decisions will not advance mine safety and may expose the agency to 
liability considerations, as these actions extend beyond enforcement of 
regulatory standards into mine design and operational considerations.
            C. Mine safety and health will not be improved by penalty 
                    provisions that are not commensurate with the 
                    severity of the violations
    H.R. 5663 would increase financial penalties, establish new 
criminal penalties and restrict the ability of mine operators to 
contest inappropriate enforcement actions. These stricter enforcement 
provisions, which would apply to all mines, will not contribute to 
improved health and safety. The MINER Act and the 2006 revisions to the 
Part 100 civil penalty regulations exceeded the agency's estimated 
impact many times over. Yet the legislation proposes further increases 
in penalties, limits operator's ability to contest frivolous 
enforcement actions and places undue limitations on operators and on 
the Federal Mine Safety and Health Review Commission's authority to 
reduce unwarranted enforcement actions.
    Further, the dramatic expansion of offenses that are now deemed 
``criminal'' and the application of civil and criminal liability to 
officers, directors and agents will discourage the implementation of 
new ideas and discourage miners from accepting management positions, 
quell innovation and create a lack of experienced miner leadership over 
time.
    Finally the dramatic expansion of pay protection to include 
operator decisions that might have resulted in a closure order may 
discourage operators from closing down areas of a mine for safety 
reasons--to the detriment of miner safety.
            D. Misallocation of safety resources will weaken safety 
                    efforts and results
    H.R. 5633 will greatly expand the definition of ``significant and 
substantial'' violations. The current process for indentifying a 
violation as S&S was developed more than 20 years ago by the Federal 
Mine Safety and Health Administration under the Carter administration. 
The Commission recognized that no differentiation in the severity of 
violations led to unfocused safety efforts and set in place today's 
definitions. Returning to those old days, when roughly 90 percent of 
all citations were deemed ``significant and substantial,'' is a step in 
the wrong direction that will destabilize safety efforts and demoralize 
much of our work force.
    Miners and operators understand the current definition and process 
for designating a violation as S&S. Unfortunately, many MSHA-determined 
violations are routinely modified by AJL's. Rather than redefining S&S 
to validate incorrect designations, the focus should be on ensuring 
that inspectors receive the training necessary to correctly identify 
violative conditions and their attendant severity. Treating virtually 
every citation as S&S will shift attention away from those conditions 
and practices that have the highest potential to cause injury or 
illness and focus efforts on mere rote conformity with the regulations, 
absent any consideration of risk.
            E. Transparency is undermined by proposed rulemaking 
                    process
    Notice and comment rulemaking is fundamental to the MINER Act and 
its predecessor statutes. It serves a dual purpose: 1) It affords 
stakeholders the due process required by law by providing a reasoned 
forum that allows all interested parties to comment on proposed 
regulations; and 2) It helps governmental agencies such as MSHA collect 
the best available information so that final regulations are effective 
and fair. H.R. 5663 would circumvent this crucial rulemaking process in 
key areas--and forgo the advantages it confers--by requiring the 
Secretary to issue ``interim final rules'' that are effective upon 
issuance, in the absence of stakeholder input.
Conclusion
    Today's mine safety and health professionals face challenges far 
different from those anticipated when our nation's mine safety laws 
were first enacted. More difficult geological conditions, faster mining 
cycles and changes in the workforce introduce potential complications 
requiring new and innovative responses. Today's challenge is to analyze 
why accidents are occurring in this environment, and use that analysis 
as a basis for designing programs or techniques to manage the accident-
promoting condition or cause.
    Regrettably, the bill before the committee does not respond to many 
of these challenges and will not, in our view, accomplish our shared 
goal. Trying to force safety improvements through punitive measures 
fails to acknowledge the complexities of today's mining environment, 
and is not the answer we all seek. Acting on false perceptions of what 
is needed now will only create false perceptions of progress, not safer 
mines.
    We understand the call by members to address perceived shortcoming 
in MSHA's statutory and regulatory structure. Indeed, we share the 
concerns of others with certain elements of MSHA's authority. We do not 
believe, however, that sufficient attention has been given to the weak 
foundation upon which MSHA's regulatory authority is built and to the 
execution of that authority to warrant such sweeping legislation.
    We stand ready to work with the members of the committee on actions 
we should be taking--some of which I have outlined--just as we did 
before Congress enacted the MINER Act.
                                 ______
                                 
    Chairman Miller. Mr. Roberts.

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

    Mr. Roberts. Mr. Chairman, thank you for this opportunity 
to appear again before this committee. I appreciate the 
opportunity we have had to work together. Unfortunately, we 
have been working on a problem that is at this moment unsolved, 
and that is the fatalities we are seeing in the coal fields and 
the grief that has come to the families of the coal miners 
throughout this country.
    Ranking Member Kline, we appreciate this opportunity, and 
members of the committee, my fellow West Virginians, 
Congressman Rahall and Congresswoman Capito, I applaud your 
leadership that you have shown throughout the time of the Upper 
Big Branch tragedy, trying to comfort the families of who have 
lost loved ones.
    I want to thank this committee for naming this legislation 
after my dear friend, Senator Byrd. The last appearance he made 
in the United States Senate was on Upper Big Branch, and I had 
the opportunity and I believe I was the last witness to ever 
testify before Senator Byrd, and had the opportunity to go up 
and thank him for what he had done for coal miners. And I said 
at the time of his death, he was the best friend a coal miner 
ever had.
    I want to mention one other person here today. I want to 
applaud the courage of a coal miner who is testifying here 
today, and that is Stanley Stewart. I hope everybody on this 
committee understands the courage it takes for someone like 
Stanley to come here and testify and tell you what has gone on 
in this coal mine and what a difficult position that places him 
in. I admire him for what he has done and I have told him that 
personally.
    I want to say that these miners who lost their lives at 
Upper Big Branch, they were employees of Massey Energy, but 
they were also our friends. I knew a number of these miners, 
played ball with some of them. I knew their parents, and in 
some instances I knew their grandparents.
    I would just like you to think for a moment. There was a 
young man--and it has been mentioned here, but not dwelled upon 
very much--named Josh Snapper. You have to work 6 months in a 
coal mine to get a miner's certificate in the State of West 
Virginia. He had not yet earned a miner's certificate, but he 
knew he was working in a dangerous place. And if a 25-year-old 
miner who had not yet obtained a miner's certificate knew he 
was working in a dangerous place, didn't everybody else know 
that? Didn't the CEO of this company know that? Didn't the mine 
foreman know that? Didn't everyone know this?
    He wrote a letter to his mother. And he had a one-year-old 
baby that I had the opportunity to meet at the memorial service 
in Beckley. And he said, ``Tell my fiance, tell my baby that I 
love them. I love you, Mom.'' Those are the kind of letters we 
used to write when we were going to Vietnam and World War I and 
World War II and Korea, people going off to the Middle East to 
fight. You understand a young man writing those kind of 
letters. That is the kind of letters we are supposed to write 
going to work? This young man knew that he was in a seriously 
dangerous place, and he lost his life there. He knew he might, 
and he left a letter behind.
    Mr. Chairman, I would just say to you that some think we 
are moving too fast here. I have had to revise my testimony 
several times as I have appeared in the Senate and in the House 
because of the fatalities that continue to occur here. On 
Friday, we had the 41st fatality that happened in Illinois. 
That is just this past Friday.
    So as we ask ourselves, ``Are we moving too fast?'' maybe 
we should ask ourselves, ``Are we moving too slowly here?'' 
because miners are continuing to die in this Nation's coal 
mines and we have got to find out why.
    I want to point out something if I might; 41 miners have 
died this year in the Nation's coal mines, 31 of them in one 
place, one company. Now, we can say, ``Gee, that is just 
unfortunate that occurred.'' That is not unfortunate. There is 
something wrong here when 31 out of 41 fatalities occur at one 
company. It is not just 31 out of 41 this year; 54 fatalities 
at this one company in 10 years. And this same company comes to 
Congress and testifies that they have the safest mines in the 
country--God help us if that is true.
    We know, and there is no one up on this dais today and no 
one sitting here today knows that this is an abnormal 
occurrence. There is something drastically wrong at this 
company. Forty-one miners have lost their lives this year. We 
have failed these miners in this country when that happens, and 
we have to do something about that.
    I want to tell you what works, and I am going to simplify 
this. We have to have good laws. We have to have those laws 
obeyed. And we have to have those laws enforced by our 
government, whether it is Federal or State. And we have got to 
punish those who fail to abide by the law.
    I am going to tell you why good laws work. There is a 
perfect example of that. We just recently celebrated the 40th 
anniversary of the Mine Act. In those 40 years prior to the 
passage of the 1969 act, 32,000 coal miners died. How many: 
32,000. Forty years after the passage of the act: 3,200. So 
those who say laws don't work, the statistics say otherwise.
    Now, every time we have ever passed a law or considered a 
law, there are those who come here and say this is going to put 
us out of business. I invite you to go back and get the 
legislative history of the 1969 act, when people came in here 
and said if we have to comply with this law there won't be a 
coal mine to operate in the United States of America. I suggest 
to you that the coal industry has continued to operate, it has 
continued to prosper. Good laws, obey those laws.
    Now I am going to make a bold statement here. Most of this 
industry--and I have said as high as 95 percent--do the right 
thing. So we are not writing laws here to destroy an industry; 
we are writing laws to try to make those who will not obey the 
law comply. That is what we are trying to do. And we have to 
give MSHA the tools that they need to enforce the laws, and we 
have got to punish those who absolutely refuse, Mr. Chair, just 
refuse to comply with these laws. They turn their backs on 
them, they ignore them, they say, These laws really don't 
pertain to me. And I don't care what Congress writes, I don't 
care what Congress says, I am not complying.
    Now, you have got to come to grips with that. That is the 
truth. Now I know I am getting a little emotional here, but 
just do the research on it and see if I am telling you the 
truth. You have got to stop the lawbreakers if you want to save 
miners' lives.
    And with that, I thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    [The statement of Mr. Robert follows:]

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

    Thank you for inviting me to address the Education and Labor 
Committee about this important legislation. 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. I 
am pleased to have this opportunity to speak in support of H.R. 5663. 
It addresses some very serious problems that have been highlighted this 
year in the coal industry as well as other industries.
    This Committee plays a significant role in advancing miners' health 
and safety. We are deeply appreciative of the leadership you have shown 
in trying to protect and enhance the health and safety of all miners. 
Your continued oversight is essential. We share with you the common 
goal of wanting to ensure that all miners will go home safely and in 
good health after the workers' shifts each and every day.
    This Committee knows all too well that the status quo is 
inadequate; this year 40 coal miners have died at work--and we are 
barely half way through the year! The horrific Upper Big Branch 
disaster claimed 29 underground coal miners. But eleven other coal 
miners also died--one or two at a time. We can and must do a better job 
of protecting our nation's miners.
    I have testified before this Committee as well as before Senate 
Committees about some of the shortcomings in the existing laws and 
about problems MSHA confronts in enforcing the law. H.R. 5663 addresses 
many of the issues we have been discussing. I will review some of the 
current problems that demand attention, then speak about how the 
proposed legislation will address those problems; and I will make a few 
suggestions to further improve the proposed legislation.
    A fundamental problem MSHA confronts is how to deal with operators 
that habitually violate the law. Voicing her apparent frustration on 
this very point after yet another miner died, on July 1 Secretary of 
Labor Hilda Solis issued a press release in which she stated:
    * * * 31 of the 40 coal mine fatalities that have occurred in 2010 
have occurred at Massey mines. We have issued citations, closure 
orders, stop orders, and fines to get Massey to take its safety 
responsibility seriously. Earlier today, the U.S. Attorney in the 
Southern District of West Virginia announced four Massey supervisors 
will be charged criminally stemming from a MSHA and FBI investigation 
into the deaths of two miners at a Massey mine in 2006. But yet again, 
today we mourn the tragic loss of another miner whose safety was 
entrusted to Massey Energy (emphasis added.)
    Clearly, the status quo isn't good enough. MSHA's efforts have 
failed to motivate at least some mine operators, like Massey, to do 
what is necessary to operate their mines safely each and every day. We 
know many operators are performing much better. In fact, of the 40 coal 
fatalities in 2010, not one was at a union operation.
    Even before the Upper Big Branch disaster in April, we met here to 
discuss how the huge and growing backlog at the Federal Mine Safety and 
Review Commission (``FMSHRC'') was undermining miners' health and 
safety. While more Administrative Law Judges have been hired to deal 
with FMSHRC cases since I testified in February, there remains the 
problem of operators routinely challenging MSHA citations in an effort 
to delay resolution of their outstanding citations and orders--whether 
to delay paying the penalties or to avoid the enhanced fines that 
attach to repeat violations, or to escape the challenging Pattern of 
Violation enforcement tool MSHA has threatened to use. And though 
Congress increased fines when it passed the MINER Act of 2006, because 
citations and orders are being regularly challenged, that new fine 
structure has not served to induce better compliance.
    After a citation is fully litigated and there remains no further 
issue about an operator's obligation to pay a particular penalty, as it 
stands today a mine with unpaid fines can continue its production 
notwithstanding a lengthy delinquency. We understand that there is more 
than $27 million in unpaid fines resulting from MSHA final orders! One 
way to avoid any such delinquencies would be to require all assessed 
fines to be placed into an escrow account, as we have previously 
suggested.
    Consistent with the expectation that all fines shall be paid close 
in time to the violation, the proposed legislation provides that when 
due process procedures have been exhausted, the operator must promptly 
pay its fines. And while MSHA has claimed uncertainty about its 
authority to take action against an operator with delinquent fines, the 
legislation will give MSHA the ability to temporarily close a mine if 
fines are not paid within 180 days. We think that's fair: operators 
that work within the legal framework shouldn't have to compete against 
those who flaunt the system.
    MSHA also has been uncertain about its authority to take immediate 
action to shut down a mine when it observes violations the Agency 
believes place miners' health and safety at immediate risk. The 
proposed legislation addresses this by granting MSHA the authority to 
seek injunctive relief when it believes the operation is pursuing a 
course of conduct that jeopardizes miners' safety or health. This is 
sorely needed.
    Another shortcoming with the existing framework concerns the 
criminal penalties in the Mine Act. They have been insufficient to 
coerce the compliance we need. First, the criminal sanctions only 
amount to misdemeanors--a virtual slap on the wrist--even though the 
consequences for Mine Act violations can be deadly. We know it can be 
difficult for a government agency to convince a prosecutor to pursue a 
case for Mine Act misdemeanors. This means that some who could have 
been prosecuted under the applicable legal standards likely escaped 
criminal prosecution simply because the criminal sanctions now 
available to prosecutors are too mild.
    More importantly, the top-level people who create and maintain the 
corporate policies that put company profits ahead of workers' safety 
have been permitted to remain in power and to continue their misguided 
practices while their subordinates have to take the blame, including 
any criminal liability. We believe that CEOs and corporate Boards of 
Directors should be held accountable; they should have to take 
responsibility when systemic health and safety problems are evident 
within a company. H.R. 5663 would provide these changes: it imposes 
criminal penalties for ``knowingly'' taking actions that directly or 
indirectly hurt workers, and makes a felony any such conduct, with jail 
time increased from a one year maximum to five year maximum for a first 
offense and ten years for a second offense, and the fines increased 
from a maximum of $250,000 to $1 million, or $2 million for a second 
offense. It also makes it easier to prosecute corporate representatives 
who knowingly authorize, order, or carry out policies or practices that 
contribute to safety and health violations. We fully support these 
improvements to the criminal penalties.
    Even though the existing law requires MSHA inspections to occur 
unannounced, we have all heard stories about the many ways operators 
game the system so inspectors will not discover unsafe work practices 
or conditions. When this Committee visited Beckley for its hearing with 
Upper Big Branch families, you heard reports about the various signals 
and codes that were relayed underground (such as, ``we've got a man on 
the property'' from Gary Quarles testimony on 5.24.10) before the 
inspectors could arrive on a section, allowing managers to direct make-
shift changes to avoid getting cited. And when MSHA took over the 
communication stations upon arrival at a couple of operations in 
Kentucky during recent blitz inspections, MSHA inspectors discovered 
many more violations than had previously been discovered--violations 
that likely would have been covered- up and gone undetected if the 
special warning codes were allowed to continue. To deal with these 
issues, the proposed legislation increases the criminal penalties for 
those who give notice, and requires information about the criminal 
penalties to be posted at mines so all miners will be on notice that 
giving any kind of notice about an MSHA inspection is improper and 
constitutes a very serious violation of the Act.
    There has been a lot of discussion about the Pattern of Violation 
(``POV'') tool that MSHA has long had a right to use, but which has not 
been effectively utilized. MSHA has alerted some operators about their 
being vulnerable to being put into a Pattern and this has generally 
been successful in accomplishing some short-term improvements. This 
happens because being put onto a POV is properly perceived as being a 
dramatic event that would be hard to ever escape. However, MSHA has 
been both too hard and too easy in its prior use of the POV. It is too 
hard insofar as if any mine would actually be placed into a POV (as 
opposed to just getting a warning notice about the possibility), under 
the current scheme it would be nearly impossible for the mine to ever 
again operate; once the POV attaches miners must be withdrawn if MSHA 
finds any S&S violation. But even the most-attentive operator may not 
be able to avoid all violations all the time. For example, barometric 
pressure changes can quickly give rise to an S&S violation.
    MSHA's current POV protocol is also too easy insofar as after MSHA 
issues a POV warning notice the Agency only requires a 30% reduction in 
the short run for an operator to be relieved of the extra scrutiny. It 
is too easy for an operator to demonstrate short-term improvements 
without making the wholesale changes needed to render the mine safe on 
a long-term basis. The focus of a POV program should be to capture the 
attention of management and miners alike to affect a wholesale cultural 
change--to make everyone at the unusually hazardous operation aware of 
what may be comprehensive problems, and to make sure they learn and 
practice different and safer work practices. The improvements should be 
fully integrated so the mine operates more safely going forward on a 
long-term basis, not just long enough to get the mine off MSHA's watch 
list.
    Rather than the punitive POV model now in place, the legislation 
seeks to turn the POV into a rehabilitation program. It provides for 
MSHA to tailor any remediation to the particular operation: if MSHA 
determines that more training would be helpful, it could require that; 
if the mine would benefit from a comprehensive health and safety 
program, the Agency could mandate that one be designed and implemented. 
The legislation also mandates a doubling of the inspections while the 
operation remains in POV status, as well as a doubling of the fines 
after 180 days if adequate improvements are not accomplished. An 
operation would remain in POV status for at least one year, which 
should be long enough to ensure that the new practices are actually 
working. Finally, MSHA plans to measure a mine's success against 
objective benchmarks, properly comparing any operation to other mines 
of similar kind and size.
    The proposal also would provide more immediacy in MSHA's assessment 
of an operation: MSHA would evaluate a mine's safety record for POV 
purposes based on contemporaneous citations and orders MSHA inspectors 
would be writing, rather than measuring a mine's safety record based on 
final orders that now can take years to process. Because contested 
citations are now caught up in a very long backlog at the FMSHRC, by 
using only final orders for POV purposes (as MSHA now does) the Agency 
could be placing a mine on a POV in 2010 based on its unsafe conduct 
from 2008, because it could take that long for the underlying orders to 
become final. From a safety management point of view this doesn't make 
sense. A mine with poor safety practices in 2008 should be placed in 
the POV status in 2008--when the added scrutiny is most needed, not 
years later when the various legal challenges get resolved. Likewise, 
if management at an operation with numerous S&S citations and 
withdrawal orders in 2008 recognized it had serious problems with its 
safety practices and initiated changes that yielded significant 
improvements, under the current scheme that mine might be vulnerable to 
a POV in 2010, after its safety practices had improved.
    The POV tool is an extreme one and should be available for MSHA to 
help put an immediate end to unsafe work practices before miners get 
hurt. It is precisely when MSHA inspectors are writing an unusually 
large number of citations and orders that a mine should receive the 
extra attention POV anticipates, not years later when those citations--
if contested--finally become final orders. And because the overwhelming 
percentage of citations and orders that MSHA inspectors write are 
upheld even when contested, there is no serious issue about due process 
based on a POV process that is prompted by written citations as opposed 
to final orders. In FY 2009, only 4-11% of litigated penalties related 
to unwarrantable failure and S&S citations ended up being withdrawn or 
dismissed. With a POV program re-focused on rehabilitation rather than 
punishment, and given the small withdrawal and dismissal rate, it is 
fully consistent with the protective purposes of the Mine Act to err on 
the side of safety and accept this modest margin of error. The proposed 
legislation would make the POV program more remedial and less punitive, 
which we support. The goal must be to turn operations with the worst 
health and safety records into much safer operations, and to teach the 
miners and managers about what is required to operate safely so they 
will do so on a long-term basis.
    A related issue that also affects the POV program arises from the 
current system for accident and injury reporting. Operators are 
required to report on all accidents and injuries and to file quarterly 
reports with MSHA. However, the reporting process is now badly flawed. 
Operators go to extraordinary lengths to dissuade their employees from 
ever filing accident reports even when an injury is serious. Some would 
rather pay an employee with a broken back to perform light duty than 
have him report the injury. While we have heard stories about these 
practices for years, former Massey employee Jeff Harris testified about 
his personal knowledge of this practice when he addressed the Senate 
HELP Committee on April 27, 2010.
    To the extent that accident and injury reports constitute a factor 
used in measuring an operator's relative safety record for POV status, 
all operations should be obligated to report accidents and injuries 
pursuant to the same objective standard. This is an area where changes 
may be required for H.R. 5663. Only if accident and injury reports are 
regularly and reliably filed can we learn about dangerous mining 
practices, and about problems with equipment. If reports are not 
provided when all accidents occur, the same problems are more likely to 
recur. There is no place for subjectivity; rather, all accidents and 
injuries should be reported so the mining community can learn from our 
collective experiences. Top level mine management should also be 
required to sign off on the reports--both to ensure that the personnel 
with the power to make changes (when needed) actually know about the 
accidents at an operation, and to provide much-needed accountability.
    A strength of the proposed legislation concerns the entities from 
which MSHA would receive and maintain accident and injury data. As it 
stands today, MSHA reports do not relate the health and safety records 
of an operator's contractors to the operator itself. Yet, if an 
operator would be required to take more responsibility for those 
working on its property, that operator would be more attentive to its 
contractors' safety records and start demanding better health and 
safety performance. A disproportionately high rate of accidents is 
attributable to contractors, so this change is warranted. And while any 
operator could be demanding better compliance with mine safety laws and 
regulations, operators generally have made no effort to exercise this 
power. Imposing the legal requirement is appropriate and should effect 
better contractor compliance with Mine Act requirements.
    Miners continue to be intimidated into working in an unsafe manner, 
and this has got to change. As you heard at the Beckley, WV hearing in 
May 2010, and as Jeff Harris testified before the Senate HELP Committee 
in April 2010, miners have provided testimony about how difficult it is 
for them to raise safety concerns at a non-union mine. Even when they 
know that their work environment is dangerous, miners are reluctant to 
voice safety issues because jobs are scarce--and coal-mining jobs pay 
well. The testimony confirmed that a miner working at a non-union 
operation has good reason to fear losing his job for complaining about 
unsafe conditions. But no miner should have to choose between earning a 
good paycheck (while praying he will survive) and working safely. No 
worker should feel he is jeopardizing his family's economic security by 
raising bona fide work concerns on the job. And no miner should be told 
he needs to find another job when he tries to exercise the statutory 
right to refuse unsafe work, as coal miner Steve Morgan reported his 
21-year old son Adam Morgan was told by his boss at the Upper Big 
Branch mine before perishing in the April 5 disaster. In short, the 
anti-discrimination protections in the existing law are terribly 
important, but they don't go far enough to protect miners. H.R. 5663 
addresses this continuing problem by making sure that miners are 
specifically trained each year about their safety rights, and 
authorizing punitive damages and criminal penalties for retaliation 
against miners who blow the whistle on unsafe conditions.
    As for accident investigations, the Act requires MSHA to 
investigate all serious accidents. However, it now does so with one arm 
essentially tied behind its back. This results from the fact that MSHA 
investigative interviews are conducted on a volunteer basis. That is, 
MSHA identifies who might have helpful information and invites them to 
meet with the Agency. Any individual may decline MSHA's invitation. 
Likewise any witness can leave the interview at any time. The only 
exception lies with the public hearing option, for which MSHA has the 
power to subpoena witnesses and documents, but which has rarely been 
used. We think MSHA should have the subpoena power for all accident 
investigations, not just for a public hearing component of an accident 
investigation as is expected to occur as part of the Upper Big Branch 
investigation. By providing MSHA with the subpoena power MSHA could 
speak with anyone it thinks has relevant information to contribute and 
it would give MSHA broader authority to review records. We also think 
that granting the Agency subpoena power for inspections would better 
protect miners who may wish to speak with MSHA inspectors. The 
legislation would make these changes.
    In the aftermath of the Upper Big Branch tragedy, we urged MSHA to 
conduct a public hearing for its primary investigation for multiple 
reasons: only by doing so could it utilize its subpoena power; and we 
believe that allowing an open hearing would permit more issues to be 
more fully explored, reducing the possibility that some less popular 
but still any feasible theories about root causes would be overlooked. 
Yet, MSHA chose to conduct this investigation largely behind closed 
doors. We think that procedure creates needless problems. And while 
MSHA plans to conduct a separate investigation into its own conduct as 
it relates to the Upper Big Branch mine, such an internal investigation 
could produce issues that bear on the primary investigation. It would 
be best if all such issues would be raised, considered, and resolved at 
the same time, not sequentially. We also believe that MSHA should not 
be the one investigating its own conduct, but an independent 
investigation team should perform this analysis. The proposed 
legislation addresses this by requiring a parallel and coordinated 
investigation to be performed under the direction of NIOSH for all 
accidents involving three or more fatalities. The independent team 
would include knowledgeable participants from other interested 
entities, including employer and worker representatives. We think this 
procedure will help assure the mining community, Congress, and the 
public at large that the investigation is thorough.
    However, the proposed legislation should be adjusted to incorporate 
a role for the miners' representative to participate fully in all 
accident investigations. For some of the more recent multi-fatal 
accident investigations, even though the UMWA was designated as a 
miners' representative, the UMWA was excluded from the accident 
interviews. The miners' representatives are permitted to join in the 
underground investigation, but little more. Without being allowed to 
join the interviews, the miners' representative cannot fully represent 
the miners at the operation who have selected such a representative.
    The Upper Big Branch investigation is another current MSHA accident 
investigation in which the UMWA has been excluded from the interviews 
even though the Union has been designated as the miners' representative 
for miners at that operation. The government has claimed that the on-
going criminal investigation justifies MSHA's closed-door investigation 
and the exclusion of the miners' representative. Yet, for another 
investigation now taking place--that following the BP explosion in late 
April--there is also a parallel criminal investigation. If simultaneous 
civil and criminal investigations are feasible in that context we 
believe it should also be viable for accident investigations within 
MSHA's jurisdiction. We thus urge a change in the legislation to 
specifically provide for miners' representatives to fully participate 
in all accident investigations. After all, miners who made their 
designation have a significant interest in learning what happened, and 
they may be returning to work at the same operation. They should have a 
seat at the table in the form of their designated representative.
    There has also been a recurring problem with the process of 
designating a Section 103(f) miners' representative after a disaster 
occurs at a non-union operation. The Act does not presently provide for 
a family member to designate a miners' representative on behalf of a 
miner who is trapped or dies in a mine accident. The proposed 
legislation would change this, so that the family member may exercise 
the right to designate a miners' representative if the miner is unable 
to exercise his right due to a mine accident.
    Though we don't yet have official information from the accident 
investigation, it is generally believed that inadequate rock dusting 
exacerbated the Upper Big Branch explosion. This legislation would 
require more protective rock dust standards. To reduce the likelihood 
of dangerous coal dust explosions, the Bill also requires the use of 
technology to better monitor rock dust compliance.
    To the extent the proposed legislation anticipates MSHA rulemaking 
and authorizes the Agency to exercise new and expanded 
responsibilities, we wish to note that it will require full funding for 
these new mandates. I think we can all agree that it would be far 
better to support a pro-active MSHA than to fund yet more large-
accident investigations.
    Finally, the UMWA is in support of those provisions of the proposed 
legislation that would fall within OSHA's jurisdiction.
    Thank you for allowing me to speak about H.R. 5663; we look forward 
to working with you to pass it into law.
                                 ______
                                 
    Chairman Miller. Mr. Snare.

STATEMENT OF JONATHAN SNARE, PARTNER, MORGAN LEWIS, TESTIFYING 
        ON BEHALF OF THE COALITION FOR WORKPLACE SAFETY

    Mr. Snare. Good afternoon, Chairman Miller, Ranking Member 
Kline, and members of the committee. I appreciate the the 
opportunity to appear before you at this hearing to address a 
number of important issues raised by the proposed H.R. 5663. 
And specifically, I am going to be focusing on Title VII, the 
amendment to the Occupational Safety and Health Act.
    I am testifying today on behalf of the Coalition for 
Workplace Safety, which is comprised of associations and 
employers who believe in improving workplace safety through 
cooperation, assistance, transparency, clarity, and 
accountability. My testimony and comments are not intended to 
represent the views of my law firm, Morgan Lewis, or any of our 
clients.
    By way of background, Chairman Miller, as you have 
indicated, my legal practice is focused on labor and employment 
matters, including workplace safety and health issues. I also 
served for a number of years in several positions at the Labor 
Department, including the Acting Assistant Secretary for OSHA, 
and as the Deputy Solicitor from 2006 to 2009, and the Acting 
Solicitor.
    The coalition's concern with this proposed legislation is 
the dramatic changes to the OSH Act that are focused 
exclusively on punishing employers, which at the end of the day 
will not result in any actual real-world impact that improves 
workplace safety and health. The coalition further believes 
that this approach has unintended consequences which may 
undermine the underlying intent and goals of this bill.
    Penalties alone will not improve workplace safety. 
Remember, in many cases, penalties are imposed after the fact 
of an injury or fatality. The critical mission of OSHA is to 
assist employers to make sure that injuries and fatalities 
never occur in the first place. As such, the current focus 
should be on efforts to prevent workplace injuries and 
fatalities before they occur, not creating new methods of 
punishment after the fact.
    The coalition is further convinced that this proposed 
legislation will create greater cost, litigation, and hamper 
job creation. Especially during these challenging economic 
circumstances, the adverse impact on the ability of employers 
to create jobs is a critical factor and should be of concern to 
this committee and Congress. These proposed changes will impose 
substantial costs on businesses, particularly small businesses, 
which are struggling to create and maintain jobs.
    Let me briefly summarize our concerns with this 
legislation. The abatement of hazards in section 703 creates a 
burdensome new requirement on employers to abate any hazard 
subject of a serious willful or repeat violation. The only way 
for an employer to suspend abatement while contesting the 
citation is to file a legal action with essentially a very high 
burden of proof, similar to a temporary injunction. This is 
essentially a mini-trial on the merits of the underlying 
citation.
    The other punitive provisions include the failure to abate, 
and a pre-final order interest imposed on employers, again, 
before the adjudication of the citation on the merits.
    Abatement is more than protecting against a hazard; it is 
part of accepting responsibility for the violation. Mandating 
abatement before allowing the employer to exhaust their due 
process, adjudicative rights, is similar to asking a criminal 
or civil defendant to pay a fine or serve a sentence before a 
trial is held.
    As to the civil penalties in section 705, the increases in 
this legislation focus again on a punishment-focused approach, 
which in and of itself will not result in any improvement of 
workplace safety and health. From the employer's perspective, 
how can we not say that this bill is about punishment? 
Broadening the scope of a repeat violation in this legislation 
and the other new proposed penalties will not result, in our 
judgment, in any prevention of workplace injuries or 
fatalities. Remember, there is no evidence that higher 
penalties, civil or criminal, have any bearing or result on 
improved workplace safety and health.
    As to the criminal penalties in section 706, the expansion 
of these penalties, both by reducing the intent level to 
knowing, and creating personal culpability will yield greater 
levels of challenges.
    First, as to reducing the level of intent from the current 
``willful'' to ``knowing'' would upend decades of OSHA law 
going back to 1970, introduce tremendous uncertainty, and 
further guaranteeing substantial increases in contested cases.
    As to the criminal liability on an officer or director is 
also equally troublesome. We believe it will impose a witch 
hunt to hold corporate officers and directors liable. Expanding 
the criminal liability for an officer or director will make any 
employer's personnel unduly subject to prosecution and it will 
create a great deal of confusion. You saw that confusion in 
response to a question by Congressman Price to the Solicitor as 
to what it means and who is a corporate officer or director.
    The coalition is also concerned about the whistleblower 
requirements in section 701. I will refer and incorporate my 
comments in the written statement.
    To conclude, Mr. Chairman, the proposals in Title VII of 
H.R. 5663 would result in significant and dramatic changes to 
the OSH Act with the imposition of a more punitive civil and 
criminal penalty structure and make it harder for employers to 
exercise due process rights. We believe this legislation is 
only about the punishment of employers, the vast majority of 
whom want to do the right thing with regard to workplace safety 
and health. And this bill will do nothing to prevent workplace 
and safety injuries and fatalities.
    And as recent data made clear, with the lowest level of 
recorded injuries and fatalities, the best way to achieve a 
continued improvement on workplace safety and health is a 
proactive approach, with balance of enforcement and compliance 
assistance.
    Mr. Chairman, thank you for the opportunity to present 
these remarks, and I look forward to answering any questions.
    Chairman Miller. Thank you.
    [The statement of Mr. Snare follows:]

       Prepared Statement of Jonathan L. Snare, on behalf of the
                     Coalition of Workplace Safety

    Good afternoon Chairman Miller, Ranking Member Kline and Members of 
the Committee. My name is Jonathan Snare. I am an attorney and I am 
currently a partner with the DC office of Morgan Lewis & Bockius LLP 
law firm. I appreciate the opportunity to appear before you at this 
hearing to address a number of the important issues raised by the Miner 
Safety and Health Act (H.R. 5663), and specifically to focus on Title 
VII ``Amendments to the Occupational Safety and Health Act.'' I am 
testifying today on behalf of the Coalition of Workplace Safety (CWS) 
which is comprised of associations and employers who believe in 
improving workplace safety through cooperation, assistance, 
transparency, clarity and accountability. Members of the CWS include 
associations comprising a wide range of employers from small businesses 
to large corporations, such as U.S. Chamber of Commerce, National 
Association of Manufacturers, Associated Builders and Contractors, 
National Association of Home Builders, NFIB, American Foundry Society 
to name a few. By way of further background, I am also a member of the 
Labor Relations Committee of the U.S. Chamber of Commerce and serve on 
its OSHA Subcommittee. My testimony and comments are not intended to 
represent the views of Morgan Lewis & Bockius LLP or any of our 
clients.

Background
    As you may recall, I testified before the Subcommittee on Workforce 
Protection on March 16, 2010 on behalf of the U.S. Chamber of Commerce 
on many of these same issues. I would like to incorporate my statement 
from the hearing into the record here, and I will not repeat in detail 
my prior testimony. Instead, I will offer comment on several of the 
OSHA provisions in H.R. 5663 of concern to the CWS and its members.
    As I mentioned, I am a partner with Morgan Lewis & Bockius LLP, in 
the Labor & Employment Practice Group. My practice is focused on 
advising clients in the labor and employment field, largely in areas of 
workplace safety and health, as well as whistleblower matters, 
regulatory issues, wage and hour/FLSA, and other related matters.
    Before joining Morgan Lewis in February 2009, I served for over 
five years in several positions at the U.S. Department of Labor. Among 
those positions, I served as the Deputy Assistant Secretary for the 
Occupational Safety and Health Administration (OSHA) from December 2004 
through July 2006, as well as serving as the Acting Assistant Secretary 
for OSHA for most of that period, from January 2005 through April 2006. 
I then served as the Deputy Solicitor of Labor from July 2006 through 
January 2009 and I served as the Acting Solicitor of Labor for most of 
2007.
    Having had the privilege of running two of the Department of 
Labor's largest agencies, OSHA and the Solicitor's Office, I once had 
the responsibility of overseeing OSHA's critically important mission of 
assuring a safe and healthy workplace for every working American, and 
of the Solicitor's Office crucial role of providing legal support to 
OSHA to assist the agency in implementing the goals of its mission. In 
so doing, I believe I developed an understanding and insight on the 
many different strategies and tools that OSHA already has available to 
implement these important goals.
    The concern that the CWS has with this proposed legislation is that 
its dramatic changes to the OSH Act are focused exclusively on 
punishing employers which, at the end of the day, will not result in an 
actual ``real world'' impact that improves workplace safety and health. 
The CWS further believes that this approach has unintended consequences 
that may undermine the intent of the bill. Penalties alone will not 
improve workplace safety--remember, in most cases, penalties are 
imposed after the fact of an injury or fatality. The critical mission 
of OSHA is to assist employers to make sure these injuries and 
fatalities never occur in the first place. As such, our current focus 
should be on efforts to prevent workplace injuries and fatalities 
before they occur, not on creating new methods of the punishment after 
the fact.
    The CWS is convinced that Title VII of H.R. 5663 will create 
greater cost, litigation and hamper job creation. Especially during 
these challenging economic conditions, the adverse impact on the 
ability of employers to create jobs is a critical factor and should be 
of concern to this Committee and Congress. These proposed changes will 
impose substantial costs on businesses, particularly small businesses, 
which are struggling to create and retain jobs in this difficult time.
OSHA's wide-ranging mission and structure and why this proposed 
        legislation will not improve workplace safety and health
    The OSH Act tasked OSHA with the difficult mission ``to assure so 
far as possible * * * safe and healthful working conditions'' but it 
has always been the responsibility of the employers, not OSHA itself, 
to ensure safety and health on the jobsite. OSHA has never had the 
resources, even when the agency had its largest number of employees, to 
inspect the 7 million worksites now within its jurisdiction. When you 
take into account that federal OSHA conducts approximately 38,000 
inspections it would take the agency over 90 to 100 years to inspect 
every worksite (and this timeframe is only slightly changed with the 
announced goal of 42,500 inspections in the OSHA FY 2011 budget). 
Clearly, enforcement alone will never be able to reach every workplace 
or serve as an effective deterrent. OSHA does not have the funds, and 
will never have the funds, to hire the staff large enough to reach each 
worksite on a regular basis through enforcement.
    The only way to leverage OSHA's resources to reach the greatest 
number of worksites and have the most positive impact on workplace 
safety and health is to assist employers in their efforts to make 
workplaces safer. This approach can be achieved by using existing 
programs that offer compliance assistance, outreach, and training. 
Congress recognized this when it enacted the OSH Act. The Act's first 
section, ``the Congressional statement of findings and declaration of 
purpose and policy,'' has several paragraphs dedicated to the 
importance of OSHA's role in compliance assistance, outreach and 
training. This point also was made by the Clinton Administration's OSHA 
Assistant Secretary Joe Dear when he launched an aggressive compliance 
assistance program.
    Since the inception of the OSH Act, America's workplaces are 
becoming increasingly safer. Over the last several years the agency has 
taken an approach to utilize existing programs to assist employers. 
Partially in part to these efforts data from the Bureau of Labor 
Statistics from 1994 to 2008 shows the total recordable case rates for 
workplaces injuries and illnesses have been cut in half (improved by 
53.6 percent), and workplace fatalities are now at their lowest level 
ever. Congress should look to ways to continue these improvements 
rather than enact changes that would hinder these efforts.
    Simply put, while enforcement plays a role, the best approach to 
further improving workplace safety and health under this existing 
system and structure is a proactive approach that reaches employers 
before there is a problem and provides them with the support and 
guidance they need to protect their employees. As part of this 
approach, workplace safety and health standards and regulations need to 
be clear and understandable so employers will be able to understand 
their obligations and to implement the necessary steps to be in 
compliance. OSHA would be better served if it would focus more of its 
existing resources or additional resources it receives from Congress on 
providing the type of training, education and compliance assistance 
materials to ensure that employers clearly understand what they are 
required to do while also maintaining appropriate enforcement.
    Additionally, OSHA should also make sure its inspectors (Compliance 
Safety and Health Officers, or CSHOs) are properly trained to apply the 
OSHA standards and regulations to the actual worksite. Remember, that 
unlike MSHA which only has jurisdiction over one industry, OSHA has a 
wide ranging jurisdiction over 7 million workplaces in a vast array of 
settings in general industry, maritime and construction, and OSHA area 
offices often have the close to impossible task of enforcing against 
many different types of jobsites in their area with many different 
applicable standards and requirements. Often times, misunderstandings 
between OSHA and an employer occur because one side or the other has a 
different understanding of what exactly is required to be in compliance 
with OSHA requirements. That is usually why employers will contest OSHA 
citations and this legislation fails to take this factor into account. 
Instead, this bill focuses solely imposing more punitive requirements 
on employers and making it harder for employers to exercise their due 
process rights. It is important to mention in this discussion that most 
OSHA citations are either accepted by the employer or settled
    My experience in government service, as well as in private law 
practice, is that most employers want to do the right thing in terms of 
workplace safety and health, as most employers care about their most 
valuable resource, their employees. For the vast majority of employers, 
workplace safety and health makes sense for business and economic 
reasons, as those with safe worksites are often the most productive and 
efficient, with the lowest overhead and workers' compensation rates, 
and it makes sense because it is the right thing to do.
OSHA already has sufficient available enforcement tools and penalties 
        to impose sanctions against employers where the circumstances 
        warrant
    The CWS is of the opinion that there are already sufficient 
penalties and enforcement tools to take action against those employers. 
Under the OSH Act, there are currently five general categories of civil 
penalties available to OSHA to impose on employers: Willful; Repeat; 
Failure to Abate; Serious; and Other than Serious. Under the current 
structure, penalties for willful violations can be imposed up to 
$70,000 for each willful violation of an OSHA standard or the General 
Duty Clause. While not defined in the statute, a willful violation has 
come to mean one where the employer is established to have been aware 
of and intentionally violated these requirements or acted with reckless 
disregard or plain indifference to workplace safety. OSHA also may 
impose a civil penalty of up to $70,000 for each repeat violation, 
which is a violation of the same or substantially similar requirement 
by the same employer at the same or different facility. For serious 
violations, OSHA may impose a civil penalty up to $7000. Additionally, 
OSHA has the ability to impose instance by instance penalties (the 
egregious policy) under certain circumstances so that the agency could 
impose willful violations for each instance of conduct, for example it 
could impose a willful penalty for each employee affected. In other 
words, the agency already has the prosecutorial authority to impose 
penalties in large amounts (sometimes in the multiple of millions of 
dollars) in these cases, as we have seen.
    The agency also may impose a civil penalty of $7000 per day for a 
failure to abate a violation for each day beyond the required abatement 
date that the particular condition or hazard remains unabated. Further, 
OSHA currently has the authority to shut down an employer's operation 
if OSHA believes that there is a serious hazard, which poses an 
imminent danger to employees.
    As to potential and available criminal sanctions, the OSH Act 
provides that an employer may be subject to a criminal fine of up to 
$10,000 and six months in jail for the first willful violation 
resulting in the death of an employee, and a criminal fine of up to 
$500,000 and twelve months in jail for the second willful violation 
resulting in an employee fatality. And as I already noted in my 
testimony, OSHA did not hesitate during the previous administration to 
refer cases that met this criteria to the Department of Justice for 
review and consideration for criminal prosecution.
    I also want to make clear on behalf of the CWS that it understands 
that its members need to fully comply with their workplace safety and 
health obligations. As I previously noted, the CWS believes that all 
parties have a respective responsibility and that employers should be 
held accountable including providing the necessary training, equipment, 
resources, and management emphasis on workplace safety. The CWS does 
not condone those employers who have intentionally flouted their 
obligations to protect their employees and fail to comply with their 
workplace safety and health obligations. Those employers--a small 
minority of employers--deserve the full range of enforcement sanctions 
by OSHA depending on the particular facts of the violation in question.
CWS's specific concerns with the provisions in Title VII of the Miner 
        Safety and Health Act of 2010 (H.R. 5663)
    As I previously mentioned, these proposed changes will simply not 
achieve the desired results in terms of improving workplace safety and 
health. Further, many provisions of this legislation and these 
revisions will result in adverse consequences to OSHA in terms of the 
administration of its enforcement, and to the Solicitor's Office, which 
is charged with the responsibility of litigating contested cases.
    At its core, let me repeat a point I noted at the March 16 
hearing--these proposed changes in H.R. 5663 can be best described 
under the old adage ``bad facts make bad law.'' This effort to change 
the OSH Act with enforcement-only sanctions appears to be driven by the 
conduct of the few outlier employers who fail in their workplace safety 
and health obligations. These proposed penalty increases and other 
sanctions will do nothing to assist employers to understand their 
obligations for workplace safety and health, such as the small business 
owner who is trying to understand how to comply with applicable 
requirements. For example, how will increasing penalties help her 
design a more effective workplace safety program when she knows she is 
unlikely to see an inspection unless there is an accident or fatality? 
Increased penalties and new criminal liabilities will promote an 
adversarial relationship between employers and OSHA. As a result, 
employers will be more hesitant in proactively engaging OSHA. This 
employer is obviously better served with more outreach and compliance 
assistance materials than increased penalties. Again, the goal here is 
compliance and prevention, not sanction. This approach benefits 
employers but more importantly it benefits employees.
    Specifically, the CWS has the following concerns with these 
provisions of Title VII of H.R. 5663:
    Abatement of hazards pending contests of citations (Section 703): 
This section creates a new burdensome requirement on employers to abate 
any hazard that is the subject of a serious, willful or repeat 
violation (exempting only other-than-serious violations). The clear 
result of this new requirement will be to reduce or eliminate the 
ability of an employer to challenge a citation through the Occupational 
Safety and Health Review Commission (OSHRC) administrative process by 
requiring this immediate abatement to all of these citations. 
Importantly, immediate abatement is already available through the 
emergency shutdown mechanism when OSHA identifies an imminent hazard to 
employees (Section 13 of the OSH Act) in certain situations.
    This proposed mandatory abatement provision would substitute an 
employer's ability to suspend abatement while contesting the citation 
with a higher burden of proof akin to what is required for securing a 
temporary injunction: (i) the employer has to demonstrate a substantial 
likelihood of success of its underlying contest of the citation; (ii) 
the employer will suffer irreparable harm absent a stay of this 
requirement; and (iii) the stay of this requirement will adversely 
affect the health and safety of workers. Even more troubling, this 
proposal gives OSHA the authority to impose a civil penalty on 
employers of $7000 per day if they have not corrected the hazard after 
the citation or obtained such a stay through the OSHRC. This punitive 
new set of penalties is simply unjustified and an outrageous trampling 
of due process rights. Abatement is more than just protecting against a 
hazard; it is part of accepting responsibility for the violation. 
Mandating abatement before allowing the employer to exhaust their 
adjudicative process would be like asking a criminal or civil defendant 
to pay a fine or serve a sentence before the trial is held.
    I should also point out the potential adverse impact on the 
workload of the OSHRC with this proposal, in that employers may be 
faced with no choice but to file legal action to stay this requirement, 
which is required to have a hearing in 15 days in this legislation, 
followed by a decision in 15 days. There is also a process by which a 
party objected to the initial decision to appeal to the Commission 
itself. The implications to the Commission workload are staggering to 
imagine.
    There is another provision in this proposed legislation which will 
add another burden to employers who chose to exercise their due process 
rights of contesting OSHA citations. Section 707 imposes what is termed 
``pre-final order interest'' (essentially prejudgment interest), 
compounded daily, which begins to accrue on the date an employer 
contests any OSHA citation. This additional penalty on employers for 
OSHA citations which have not yet been adjudicated by the OSHA Review 
Commission appears to be unduly punitive, and will not result in any 
improvement of workplace safety and health; the supposed goal of H.R. 
5663. The only result of this provision will be to increase the 
difficulties for employers who choose to exercise their due process 
rights and to contest any citations they believe were incorrectly or 
wrongly imposed to the particular situation.
    In addition, this provision will eliminate OSHA and the Solicitor's 
Office prosecutorial discretion in handling these contested cases and 
eliminate one source of potential leverage that OSHA and the 
Solicitor's Office can use to resolve cases with the requirement to 
impose immediate abatement.
    The combined effect of mandatory abatement and the greater 
difficulty in getting a stay will be that the OSHA inspector who issues 
the citation will have the roles of judge and jury. This is grossly 
unjust as many OSHA inspectors are unfamiliar with the industries and 
workplaces they are inspecting. They very well may not know the best 
workplace procedures and which are actually the safest. Enhancing their 
authority as this section is a prescription for overzealous and 
improper citations.
    In sum, this provision is unduly punitive and makes it much more 
difficult for employers, particularly smaller employers who lack 
resources, to challenge certain citations, which they may believe in 
good faith are incorrect or improperly imposed by the agency in the 
first place. The end result of this requirement will not be an 
improvement in workplace safety and health. Instead, the only result of 
this onerous set of requirements will be to impose more costs and more 
burdens on employers at precisely the wrong time in this challenging 
economic environment when employers everywhere are struggling to stay 
afloat.
    Civil Penalties (Section 705): The increases in civil penalties in 
Section 705 raise the issues already mentioned about a punishment-
focused approach, which will in and of itself, not result in any 
improvement of workplace safety and health. From the employers' 
perspective, how can we not say that this bill is about punishment? If 
you have any doubt that this new legislation is about punishment of 
employers, let me cite the new provision in Section 705 that will give 
OSHA the authority to consider an employer's history of OSHA citations 
from state plan states as part of the process to determine whether a 
federal OSHA violation is a repeat violation or not. This is another 
example of a dramatic change to 40 years of OSHA practice for the sole 
purpose of punishing employers. When combined with the recent steps 
taken by OSHA to increase civil penalties and more aggressive 
enforcement, such as through the new SVEP program as well as the new 
higher penalty calculations in the OSHA Field Operations Manual, 
employers may have no choice but to consider contesting every citation 
to avoid these further punitive sanctions.
    Even now, employers have difficulty understanding what OSHA 
requires in its standards, as well as understanding its potential 
liability; these new proposed penalties and other new requirements 
(such as the immediate abatement requirement and new criminal 
sanctions) will only add to the difficulty for employers to not only 
understand what is required of them but to face a dramatic increase in 
costs, precisely at a time in our economic life, when employers can ill 
afford such sanctions.
    Criminal Penalties Section 706): These proposed changes to increase 
the criminal sanctions will do nothing positive for workplace safety 
and health. Again, these expansions of criminal sanctions--both by 
reducing the necessary intent level to ``knowing'' and creating 
personal culpability--will yield much greater levels of challenges 
instead of improvements in workplace safety.
    First, the CWS is concerned by the proposal to change the level of 
intent (mental state) necessary for criminal penalties from the current 
``willful'' to ``knowing.'' Such a change would upend decades of OSHA 
law--dating to the passage of the OSH Act in 1970 and introduce 
tremendous uncertainty, further guaranteeing substantial increases in 
contested cases. While the ``knowing'' standard is used in 
environmental statutes, it has not been the standard for OSHA criminal 
culpability. In environmental law, the term ``knowing'' has come to be 
associated with a low level of intent, almost akin to a strict 
liability standard where the party in question has to know only that a 
given activity was taking place, not that there was a violation 
occurring or that environmental laws were being broken. As there is no 
further definition in the bill of this standard, employers (and OSHA 
inspectors) will be left to guess what this means and when it should 
apply. This is a prescription for utter confusion and legal challenges 
that will be costly to both the employer and the agency.
    Further, imposing criminal liability on any ``an officer or 
director'' is equally troublesome. The CWS believes this proposal will 
result in a witch hunt to hold officers or directors responsible. 
Expanding criminal liability to any officer or director will make 
corporate personnel unduly subject to prosecution even if they 
generally have no involvement in day to day operations. All of these 
terms are vague and ambiguous as to who would fall within these 
categories. These terms are also vague as to how they would be applied 
in the legal process; do they apply only to the corporate entity or 
other legal entities such as partnerships? Does this mean that any 
limited partner or director would now be subject to potential criminal 
prosecution? How would responsibility be determined? None of these 
changes will improve workplace safety and health, and actually, this 
new requirement, if adopted, could result in adverse impacts as 
corporate employees would now fear that any decision they could make on 
the jobsite could subject them to prosecution; a safety director or E, 
H & S employee could be faced with the reality that every one of their 
decisions would be micromanaged, potentially by employees who have 
little or no expertise in safety and health. This will create a 
chilling effect on these employees trying to simply do their job, or 
even taking these jobs. Furthermore, these are the people that should 
get those jobs--the ones that care enough and know what should be done, 
but do not want to be exposed to criminal liability because of the 
actions of an employee they could not control. This could create 
uncertainty on the jobsite with a net reduction of workplace safety and 
health.
    New whistleblower requirements (Section 701): This section will add 
new requirements and create additional complicated and costly 
procedures for adjudicating whistleblower cases, without any evidence 
or justification that the existing protections available to employees 
under Section 11(c) of the OSH Act are somehow deficient. The CWS is 
also concerned with other proposals in Section 701 which are overly 
punitive on employers and will benefit no one, aside from trial 
lawyers.
    For example, this section completely eliminates any flexibility for 
an employer and employees to negotiate employment contracts or 
agreements which include an arbitration clause applicable to 
whistleblower rights. Arbitration clauses are often used as a mechanism 
for resolving disputes which is quicker and less costly than 
litigation. This section also includes broad and vague language 
prohibiting settlement of any whistleblower claims that contain 
``conditions conflicting with the rights'' protected in Section 701 
including the restriction on the complainant's right ``to future 
employment with employers other than the specific employers named in a 
complaint.'' This blanket prohibition on the ability of employers and 
whistleblower complainants to enter into settlements that make sense to 
them in the context of the particular case at hand will make it more 
difficult, at the end of the day, for the parties to settle these 
cases. The end result: more litigation and more costs on employers.
    Furthermore, this section grants employees a right to bring an 
action against their employer in federal court for no reason greater 
than the Administrative Law Judge or the review board missing a 90 day 
deadline to issue their decisions--deadlines that were predicted to be 
routinely missed by whistleblower law expert Lloyd Chin in his 
testimony to the Subcommittee on Workforce Protections on April 28.
    We also note that the new whistleblower provisions being discussed 
today allow employees to recover, against the employer, their 
attorneys' fees and costs if they are successful in getting an order 
for relief from either the Secretary or a court. Similarly, allowing 
small businesses that successfully defend themselves against an OSHA 
citation to recover their attorneys' fees has long been one of our key 
goals. Bills to permit this have passed the House with bipartisan 
support in previous Congresses. While inclusion of this idea would not 
cure the problems we see with these whistleblower provisions, we 
believe allowing small businesses the same opportunity as employees to 
recover attorney's fees is only fair.
The adverse impact of Title VII of H.R. 5663 on the OSHA contested 
        caseloads and the administration of OSHA litigation
    I would also like to reiterate an issue and concern I mentioned in 
my testimony on March 16, 2010--the potential impact of these proposed 
changes to the OSH Act on the OSHA adjudicatory process. The net result 
of these proposals to increase civil and criminal penalties; 
dramatically revise the whistleblower structure under the OSH Act; and 
require immediate abatement will cause not only employers to contest 
citations at higher rates, but will result in delays in the ultimate 
resolution of contested enforcement cases, and unduly strain the 
resources of OSHA and the Solicitor's Office.
    We do not need to look any further than the recent example of MSHA 
enforcement of the mine industry after changes to increase the 
penalties and other sanctions to get a picture of the potential 
difficulties and challenges. Indeed, this Committee held a hearing on 
this subject on February 23, 2010 and heard testimony raising these 
same concerns. As I mentioned in my testimony at the March 16, 2010 
hearing, the increased penalties under the Miner Act, combined with the 
aggressive use of existing tools, such as the Pattern of Violation 
mechanism, resulted in a dramatic increase in contest cases. For 
example, the percentage of contested MSHA violations went from just 
over 5 percent in 2005 (the year prior to the Miner Act), jumping to 
over 20 percent by 2007, and over 25 percent in 2008 and 2009.
    From personal experience I can attest to the challenges these 
increases posed for the Solicitor's Office and MSHA. During this same 
period, I was the Acting Solicitor and Deputy Solicitor and we devoted 
significant time and effort to manage the impact of these higher 
contest rates. We had to shift resources within the Solicitor's Office, 
and take other often difficult steps, to assist with this dramatic 
increase in the workload. Due to the risk of the Pattern of Violations 
and the significantly higher penalties, it was much more difficult to 
settle cases, further adding to the problem. The MSHRC also faced 
problems in that they simply did not have enough ALJs to hear all of 
the cases. Funding increases partially solved this problem but it still 
remains a huge problem and the resolution of many cases has been 
delayed for months, if not years. The current backlog of cases is 
16,000 and the caseload docket increased from 2,700 cases in FY 2006 to 
more than 14,000 cases in FY 2009.
    I think it is important for this Committee to carefully consider 
the practical real world impact of any of these proposed changes to the 
penalty structure which will have a significant impact on the 
administration of the OSHA contested caseload. While the budget 
situation at DOL is different now from the time I served, these 
proposed changes will still have what I believe to be a significant 
impact on the OSHA adjudicatory process, and I believe this Committee 
should be aware of the impact of this legislation and should take these 
concerns into account when considering this legislation.
Conclusion
    The OSHA proposals included in Title VII of the Miner Safety and 
Health Act (H.R. 5663) would result in significant and dramatic changes 
to the OSH Act, with the imposition of a more punitive civil and 
criminal penalty structure, and make it harder for employers to 
exercise due process rights to contest citations or defend against 
whistleblower complaints, without any beneficial impact on workplace 
safety and health. The CWS believes that this legislation is only about 
the punishment of employers, the vast majority of whom want to do the 
right thing in terms of workplace safety and health, and this bill will 
not prevent workplace safety and health injuries and fatalities. There 
is nothing in this proposed legislation that will provide any 
assistance to employers, and most importantly small businesses, to 
improve safety in their workplaces. Rather, this proposed legislation 
will result in higher costs and added liabilities on employers, 
including small businesses, who are struggling in this challenging 
economic time to maintain operations, expand, and trying to retain 
jobs. These increased costs will have only a detrimental impact on 
these efforts.
    The goal here, as I previously noted, is to prevent workplace 
fatalities and injuries from occurring, not merely punishing the 
employer after they occur. As recent data makes clear, with the lowest 
ever recorded level of workplace injuries and fatalities, the best way 
to achieve continuous improvements in workplace safety and health is to 
utilize a proactive approach with enforcement when appropriate, and 
offer outreach, training, and compliance assistance to that vast 
majority of employers who want to do the right thing and comply with 
their workplace safety and health obligations.
    Mr. Chairman, thank you for this opportunity to speak to you on 
these important issues, and I would now be happy to respond to any 
questions that you and the Committee may have.
                                 ______
                                 
    Chairman Miller. Ms. Rhinehart.

    STATEMENT OF LYNN RHINEHART, GENERAL COUNSEL, AMERICAN 
   FEDERATION OF LABOR, CONGRESS OF INDUSTRIAL ORGANIZATIONS

    Ms. Rhinehart. Thank you, Mr. Chairman, Ranking Member 
Kline, and members of the committee, both for holding this 
hearing and for inviting me to testify here today. We really 
appreciate the committee's continued efforts to promote worker 
safety and health, including the introduction of the Miner 
Safety and Health Act last week.
    Clearly, we still have major problems in the mines with 
getting mine operators to pay attention to worker safety 
problems that need to be addressed. President Roberts and Mr. 
Stewart have eloquently spoken to these issues. We fully 
support the mine workers on these points. But the problem isn't 
limited to mines, and that is the fundamental point that I want 
to speak to here today.
    Just as the Mine Act needs to be strengthened to get mine 
operators to pay attention to safety and put safety before 
profits, so does the main law protecting worker safety and 
health, the Occupational Safety and Health Act of 1970. The OSH 
Act is a good law, it has saved lives, it has prevented 
injuries, but it has serious shortcomings and it is woefully 
out of date. Other than a civil penalty increase in 1990, the 
law has never been updated or strengthened in 40 years since 
its passage. It has fallen behind the Mine Act, and it has 
fallen behind environmental laws designed to protect us from 
harm from contaminated air, from contaminated water, from 
unsafe mines. But the OSH Act has fallen far behind.
    Now, some would say the law is actually fine and that the 
problem that we face is just with a few bad actors out there. 
We disagree. This is a systemic problem that needs to be fixed. 
We still have more than 5,200 workers dying on the job each 
year, an average of 14 workers each and every day. Millions of 
workers are injured each year. OSHA has issued thousands of 
citations for violations of the OSH Act in connection with 
those fatalities that I just referenced. This is not a matter 
of just happenstance, things happen; these are violations of 
the law that lead to worker fatalities and injuries, and it is 
a systemic problem that needs to be addressed.
    The average penalty for violating the OSHA law, a serious 
violation of the law that carries a substantial risk of death 
or serious injury is $965. Even in cases where workers are 
killed, the average penalty is about $5,000. This is not enough 
to get employers to pay attention to safety and make 
investments in safety on the front end. It is too easy to write 
penalties like this off as just a cost of doing business.
    The criminal penalty provisions in the OSH Act are even 
weaker. As you know, the maximum penalty under the law for 
willful violations of the law that result in a worker fatality 
is just six months in jail, which is a misdemeanor. And it also 
carries a $250,000 fine.
    The penalties for polluting the environment or harassing 
protected wildlife on public lands are higher than the 
penalties for violating the OSHA law and killing workers. 
Because the penalties are so weak, the Department of Justice 
rarely prosecutes cases under the OSH Act. One telling 
statistic, the Department of Justice brought four times more 
criminal cases last year for violations of the environmental 
laws than have been brought in the entire 40-year history of 
the OSH Act; four times more cases in 1 year than in 40 years 
under the OSH Act because the criminal penalty provisions are 
just so weak.
    Now we have heard today that the bill is too punitive and 
what we need is more compliance assistance and cooperation; 
that penalties have nothing to do with promoting safety. But 
when OSHA only has enough inspectors to inspect workplaces once 
over 137 years, on average--which is the case now--you have to 
have strong penalties when violations are found if the system 
is to work. Otherwise, the law just does not provide an 
adequate incentive for employers to comply with the law and 
protect workers. The penalties, in our view, have everything to 
do with bringing about greater compliance and prevention of 
problems before tragedies occur, and they are just too weak 
right now to make that happen.
    We have heard today about the importance of strong 
whistleblower protections and about making sure that workers 
are protected when they speak out about job hazards. The 
whistleblower protections in the OSH Act are the weakest of any 
of the 17 whistleblower laws enforced by OSHA. They are out of 
the mainstream of whistleblower protections passed by Congress 
over the past number of years, signed into law by both 
Republican and Democratic Presidents.
    The details of these weaknesses are contained in my written 
statement which is submitted for the record. Suffice it to say, 
the whistleblower protections in the OSH Act are woefully out 
of date and really do not provide workers with recourse when 
they suffer discrimination for raising job hazards or 
exercising their rights under the law. They have 30 days to 
bring their case forward. They are dependent on the Secretary 
of Labor bringing their case. If the Secretary doesn't act, 
workers are out of luck; they have no private right of action. 
This is completely out of the mainstream of whistleblower 
protection laws.
    So if we are serious about our commitment to worker safety 
and health, and this committee clearly is, and if we are 
serious about wanting to prevent deaths and injuries on the 
job, we need to strengthen the OSHA law and provide meaningful 
penalties that will bring about greater compliance before 
fatalities and injuries occur. We need to strengthen 
protections against retaliation for workers who raise job 
hazards. We need to get employers to correct hazards more 
quickly, and not use the litigation process before the OSHA 
Review Commission to stall abatement and leave workers at risk. 
And that is what the Miner Safety and Health Act would do.
    If I may take just 20 seconds to make one more comment 
about the concerns that have been expressed here today about 
this bill costing employers money, and that not being a good 
idea at a time when the economy is really struggling. We are 
for jobs, we are all for jobs, we are all for safe jobs. When 
you think about the costs here, you need to think about the 
costs of workplace fatalities, injuries and illnesses. They are 
enormously expensive, not just in human terms--which those 
costs are incalculable, you cannot bring a loved one back--but 
the financial costs of injuries and illnesses are $50 billion a 
year. So we submit that preventing those injuries, preventing 
those fatalities and eliminating those costs is actually good 
for the bottom line and good for the economy.
    So we strongly support this legislation and the OSH Act 
provisions in it and urge its prompt adoption. Thank you.
    Chairman Miller. Thank you very much. Thank you to all of 
you for your testimony.
    [The statement of Ms. Rhinehart follows:]

     Prepared Statement of Lynn Rhinehart, General Counsel, AFL&CIO

    Thank you for the opportunity to testify today in support of H.R. 
5663, the Miner Safety and Health Act of 2010. On behalf of the AFL-
CIO, a federation of 56 national and international unions representing 
more than 11.5 million working women and men across the United States, 
I want to convey our strong support for this legislation and to urge 
that it be enacted into law without delay. We appreciate the Committee 
holding this hearing, and its steadfast efforts to strengthen the job 
safety laws and protect worker safety and health.
    Stronger safety and health protections for America's workers--its 
miners and other working men and women--are urgently needed. Forty 
years after the passage of the Occupational Safety and Health Act and 
the Coal Mine Health and Safety Act, the sad fact is that too many 
workers are still being killed, injured, and diseased on the job. 
Tragedies like the recent blast at Massey's Upper Big Branch mine, 
where 29 workers died, the explosions at the Tesoro Refinery in 
Washington State and the Kleen Energy plant in Connecticut, which 
claimed 13 more lives, and the recent explosion on the BP/Transocean 
Deepwater Horizon oil rig in April, which killed 11 workers, are vivid 
and painful illustrations of the need for stronger measures to protect 
workers' lives. But these fatalities are just the tip of the iceberg. 
In 2008, more than 5,200 workers were killed on the job by job 
hazards--an average of 14 workers each and every day. Millions of 
workers suffered injuries. The devastation and hardship these 
fatalities and injuries cause to workers and their families are 
incalculable. The direct cost of these injuries to employers in terms 
of medical and lost wage payments is more than $52 billion each year. 
When indirect costs such as lost productivity are added in, the annual 
costs skyrocket to $156-312 billion.\1\ Clearly, more needs to be done 
to reduce this toll and bring about greater attention to worker safety 
and health.
---------------------------------------------------------------------------
    \1\&AFL-CIO, Death on the Job: The Toll of Neglect (April 2010) 
(citing data from Liberty Mutual Insurance).
---------------------------------------------------------------------------
    In his testimony, United Mine Workers of America President Cecil 
Roberts has described why the improvements in H.R. 5663 are needed to 
bring about stronger safety and health protections for our nation's 
miners. The AFL-CIO strongly supports these measures and the reforms 
sought by the Mine Workers. My testimony will focus on the provisions 
of H.R. 5663 that amend the Occupational Safety and Health Act of 1970 
(OSH Act), our nation's primary worker safety law.
    There is no question that the OSH Act has made a tremendous 
difference in bringing greater attention to workplace safety and in 
preventing countless fatalities, injuries, and illnesses. But since its 
passage 40 years ago, the law has never been significantly updated or 
strengthened, and as a result, the law is woefully out of date. The OSH 
Act's penalties are weak compared to other laws, the government's 
enforcement tools are limited, and protections for workers who raise 
job safety concerns are inadequate and far weaker than the anti-
retaliation provisions of numerous other laws. The law simply does not 
provide a sufficient deterrent against employers who would cut corners 
on safety and put workers in harm's way.
    H.R. 5663 would address several major shortcomings in the OSH Act 
by (1) strengthening both the civil and criminal penalty provisions in 
the law, (2) improving anti-discrimination protections for workers who 
raise job safety concerns or otherwise exercise their rights under the 
OSH Act, (3) requiring employers to fix hazards to ensure that workers 
are protected while litigation over citations is pending, and (4) 
giving victims and family members more rights to participate in the 
enforcement process. These provisions, which are drawn from the 
Protecting America's Workers Act (PAWA), H.R. 2067--legislation that 
has been introduced in the last several Congresses and has already been 
the subject of numerous Congressional hearings--will greatly improve 
worker protections by updating and strengthening key provisions of the 
law. PAWA contains other important measures to address shortcomings in 
the OSH Act and improve worker safety and health, such as extending 
OSHA coverage to millions of state and local public employees who are 
not (and have never been) covered by the law, and enhancing worker and 
union rights in the enforcement process. We continue to support the 
additional measures contained in PAWA, and we urge their adoption.
    I will now address each of the four major OSH Act provisions in 
H.R. 5663.
1. Stronger Civil and Criminal Penalties for Violations of the Law
    The OSH Act gives employers the responsibility to comply with 
health and safety standards and protect workers from harm. Because 
OSHA's inspection and enforcement resources are so limited, the system 
largely relies on employers taking their responsibilities seriously and 
complying on their own. Unlike the Mine Act, there are no mandatory 
inspections under the OSH Act, even for the most dangerous industries 
or workplaces. At current funding levels, federal OSHA only has enough 
inspectors to inspect each of the nation's 8 million workplaces once 
every 137 years.
    Given how infrequently inspections occur, in order to provide a 
strong incentive for employers to comply with the law and deter 
violations, it is essential that there be strong enforcement when 
workplaces are inspected and violations are found. But that is simply 
not the case. Current OSHA penalties are too low to deter violations. 
The average penalty for a serious violation of the law--defined as a 
violation that poses a substantial probability of death or serious 
physical harm to workers--was just $965 in FY 2009. The statute 
authorizes up to $7,000 for these violations.
    Even in cases of worker fatalities, the median initial total 
penalty in FY 2009 was a paltry $6,750, with the median penalty after 
settlement just $5,000. Many of these are fatalities caused by well-
recognized hazards: trench cave-ins, failure to lock-out dangerous 
equipment, and lack of machine guarding. To cite just a few examples:
     In January 2009, Andrew Keller was killed in a trench 
cave-in in Freyburg, Ohio. Keller was 22 years old. The company, 
Tumbusch Construction, was cited for three serious violations and 
penalized $6,300. The penalties were later reduced to $4,500. Six 
months later, in June 2009, OSHA found similar violations at another 
jobsite of Tumbusch Construction. This time the company was cited for 
both serious and willful violations with a total of $53,800 in 
penalties proposed. The company has contested the violations.
     A July 2009 fatality case in Batesville, Texas, where one 
worker was killed and two workers injured when natural gas was ignited 
during oxygen/acetylene cutting on a natural gas pipeline. The 
employer--L&J Roustabout, Inc.--was cited for three serious violations 
with $3,000 in penalties. The case was settled for $1,500.
     In August 2009, Andrea Taylor, age 28, was killed on the 
job at Affordable Electric in Lamar, South Carolina. South Carolina 
OSHA cited the company for five serious violations of electrical and 
lock-out standards with a proposed penalty of $6,600. In an October 
2009 settlement, three of the violations were dropped and the penalties 
were reduced to $1,400.
     In August 2009, at SMC, Inc. in Odessa, Texas, a worker 
was caught in the shaft of a milling machine and killed. The company 
was cited for one serious violation. The $2,500 proposed penalty was 
reduced at settlement to $2,000.
    These are not meaningful penalties--they are a slap on the wrist. 
Penalties of this sort are clearly not sufficient to change employer 
behavior, improve workplace conditions, or deter future violations.
    The OSH Act's civil penalties were last increased by Congress in 
1990 (the only time they have ever been raised). Unlike all other 
federal enforcement agencies (except the IRS), the OSH Act is exempt 
from the Federal Civil Penalties Inflation Adjustment Act, so there 
have not even been increases in OSHA penalties for inflation, which has 
reduced the real dollar value of OSHA penalties by about 40 percent. 
For OSHA penalties to have the same value as they did in 1990, they 
would have to be increased to $11,600 for a serious violation and to 
$116,000 for a willful violation of the law.
    H.R. 5663 would strengthen the civil penalty provisions in the OSH 
Act in several ways. First, the bill would increase civil penalties to 
account for inflation since the last increase, and would index 
penalties to inflation in the future. Second, the legislation would add 
a mandatory minimum penalty of $20,000 ($10,000 for employers of 25 or 
fewer employees) for violations that involve a fatality, and authorize 
penalties of up to $50,000 for these violations. These provisions would 
merely update the OSH Act's civil penalty provisions for inflation and 
ensure that at least a minimum penalty is assessed when the violation 
leads to a worker fatality. Third, the legislation would make clear 
that an employer's history of violations in states with state OSHA 
plans would be considered by the Secretary of Labor in deciding whether 
to issue a citation for a ``repeat'' violation, which carries higher 
penalties. These are modest measures, but they are much needed and long 
overdue.
Criminal Penalties
    The criminal penalty provisions of the OSH Act are exceedingly 
narrow and weak. Under the OSH Act, criminal penalties for violations 
of the law are limited to cases where a willful violation results in a 
worker's death, and even then, the maximum jail term is six months--a 
misdemeanor. (The Act also authorizes prosecutions for false statements 
and for giving advance notice of an OSHA inspection, with a maximum six 
month jail term for each).
    By contrast, both the Coal Mine Health and Safety Act and 
environmental laws authorize prosecutions with more significant 
penalties for knowing violations of the law, and they do not require 
that a fatality or other harm occur as a precondition of prosecution. 
The environmental laws also authorize prosecutions for ``knowing 
endangerment''--knowing violations of the law that put others at 
imminent danger of death or serious harm--which carry far greater 
penalties (15 years) than does the OSH Act (6 months for willful 
violations that cause a fatality). Compare, e.g., 42 U.S.C. 6928(e) and 
(f) (knowing endangerment under the Clean Air Act) and 33 U.S.C. 
1319(c)(3) and (6) (knowing endangerment under the Clean Water Act) 
with 29 U.S.C. 666(e) (OSH Act). The six month maximum penalty under 
the OSH Act for willful violations that result in a worker fatality are 
even weaker than the one-year maximum penalty under the Wild Free-
Roaming Horses and Burros Act for maliciously harassing a wild horse or 
burro on public lands. 16 U.S.C. 1338. My point here is not in any way 
to denigrate strong criminal enforcement provisions for violations of 
wildlife and environmental protection laws, but rather to say that the 
weakness of the OSH Act's penalties when compared to these laws sends a 
terrible message about the value the law places on workers' lives, and 
undermines strong and credible enforcement of the job safety law.
    Because the OSH Act's criminal penalty provisions are so weak, very 
few cases are prosecuted by the Department of Justice. Given its 
limited resources, DOJ understandably focuses on prosecuting felonies 
with meaningful sanctions, not misdemeanors. As best as we can tell 
from available records, in the 40 years since the passage of the OSH 
Act, only 79 cases have been prosecuted under the OSH Act, with 
defendants serving a total of 89 months in jail. By comparison, in FY 
2009 alone, there were 387 criminal enforcement cases initiated under 
federal environmental laws and 200 defendants charged, resulting in 76 
years of jail time and $96 million in penalties. In other words, there 
were more prosecutions, penalties, and jail time in one year for 
violations of environmental laws than have occurred for violations of 
the OSH Act in OSHA's entire 40-year history.
    To illustrate this disparity between the criminal provisions of the 
OSH Act and environmental laws, take the prosecution of BP after an 
explosion at its Texas City, Texas oil refinery in 2005. That explosion 
killed 15 workers and injured 170 others. OSHA issued citations and 
civil penalties against BP, and settled for $21 million. (OSHA recently 
announced the largest fine in OSHA's history against BP for the 
company's failure to abate hazards as promised in the earlier 
settlement).\2\ The Justice Department prosecuted BP, and BP pleaded 
guilty and agreed to a $50 million fine, not to violations of the OSH 
Act but for violations of the Clean Air Act. The OSH Act and its 
misdemeanor penalty was simply not part of the equation.
---------------------------------------------------------------------------
    \2\&Steven Greenhouse, ``BP to Challenge Fine for Refinery Blast'', 
N.Y. Times, (October 31, 2009)
---------------------------------------------------------------------------
    H.R. 5663 would begin to correct this disparity and bring the OSH 
Act's criminal provisions more in line with other laws. It is important 
to point out that even as amended by H.R. 5663, the OSH Act's 
provisions would still be narrower and weaker than the Mine Act and 
environmental laws. Under H.R. 5663, criminal violations of the OSH Act 
would be made a felony, instead of a misdemeanor, and maximum jail 
terms would be increased to 10 years. Criminal prosecution would be 
authorized for knowing violations that lead to serious bodily harm, in 
addition to those that lead to deaths. Corporate officers and directors 
could be held personally criminally liable for violations, as is the 
case under the Mine Act and the environmental laws. These provisions 
would begin to make the criminal provisions of the OSH Act a more 
meaningful deterrent to violations that cause death or serious harm. 
These reforms are sorely needed and are long overdue.
2. Improved Anti-Retaliation Protections
    There is universal agreement about the importance of workers being 
involved in addressing safety and health hazards at the workplace. 
Workers see first-hand the hazards posed by their jobs and their 
workplaces, and they are an important source of ideas for addressing 
these hazards. But in order for workers to feel secure in bringing 
hazards to their employer's attention, they must have confidence that 
they will not lose their jobs or face other types of retaliation for 
doing so. All too often, fear of retaliation for ``rocking the boat'' 
leads workers to stay quiet about job hazards, sometimes with tragic 
results, as we saw with the Massey mine explosion in April.\3\
---------------------------------------------------------------------------
    \3\&Dan Barry, et al., ``2 Mines Show How Safety Practices Vary 
Widely'', N.Y. Times (April 22, 2010). See also Peter Kilborn, ``In 
Aftermath of Deadly Fire, a Poor Town Struggles Back,'' N.Y. Times 
(Nov. 25, 1991) (workers at the Imperial Food chicken processing plant, 
where 25 workers died in a fire, did not raise safety complaints 
because they feared losing their jobs).
---------------------------------------------------------------------------
    Unfortunately, the anti-retaliation protections under the OSH Act 
for workers who raise job safety concerns or exercise their other 
rights under the law are woefully inadequate and fall far short of the 
protections offered under many other anti-retaliation laws--including, 
ironically enough, laws enforced by OSHA. The U.S. Government 
Accountability Office (GAO) surveyed seventeen whistleblower statutes 
enforced by OSHA and found that the OSH Act contains much weaker 
whistleblower provisions than these other federal laws.\4\
---------------------------------------------------------------------------
    \4\&Government Accountability Office, Whistleblower Protection 
Program: Better Data and Improved Oversight Would Help Ensure Program 
Quality and Consistency 50-65 (Jan. 2009).
---------------------------------------------------------------------------
    Four weaknesses are particularly problematic: (1) the OSH Act's 
short statute of limitations for filing whistleblower complaints (30 
days); (2) the absence of preliminary reinstatement while cases are 
proceeding through the system; (3) the lack of an administrative 
process for hearing cases; and (4) the absence of a private right of 
action for workers to pursue their own cases before the agency or in 
federal court in situations where the Secretary of Labor fails or 
chooses not to act, which all too often is the case.\5\ These statutory 
shortcomings leave workers with little or no recourse when they face 
retaliation for reporting hazards or injuries or exercising their other 
rights under the law. This undermines the OSH Act's encouragement of 
full and active worker involvement in workplace safety and health.
---------------------------------------------------------------------------
    \5\&According to data provided by OSHA, in FY 2009, federal OSHA 
received 1,280 section 11(c) discrimination complaints, and completed 
action on 1,173 cases. Only 15 of these cases were recommended for 
litigation and another 246 settled. Eight hundred thirty-four of these 
cases were dismissed by the agency, of which 104 were appealed by 
complainants to the OSHA National Office. Of these 10 were remanded 
back to the regions for rehearing. Of the cases that are found 
meritorious by investigators, few are actually litigated by the 
Solicitor of Labor (SOL). In FY 2009, four of the 15 case recommended 
for litigation went to court. Since FY 1996, only 32 lawsuits were 
filed out of 467 cases referred by OSHA to SOL for litigation.
---------------------------------------------------------------------------
    H.R. 5663 would correct these shortcomings and bring the OSH Act's 
anti-retaliation provisions into the mainstream of other whistleblower 
laws. The bill extends the statute of limitations for filing complaints 
from 30 days to 180 days, putting the OSH Act on par with the Surface 
Transportation Act and other major anti-retaliation laws. The bill 
establishes an administrative process for handling retaliation cases, 
similar to other whistleblower laws, so that the Secretary of Labor is 
not required to go to court to pursue these cases but can handle them 
administratively. The bill establishes timeframes for processing cases, 
and gives workers the right to pursue their cases before an 
administrative law judge or court if the Secretary of Labor delays 
action or chooses not to pursue the case. The bill makes clear that the 
anti-retaliation protections apply to the reporting of an injury or 
illness, which is important given the chronic underreporting problem 
and the prevalence of employer practices and policies to discourage 
reporting.\6\ And, H.R. 5663 codifies workers' right to refuse 
hazardous work, a long-established right that was upheld by the U.S. 
Supreme Court decades ago. Whirlpool Corp. v. Marshall, 445 U.S. 1 
(1980).
---------------------------------------------------------------------------
    \6\&See GAO, Workplace Safety and Health: Enhancing OSHA's Records 
Audit Process Could Improve the Accuracy of Worker Injury and Illness 
Data (Oct. 2009).
---------------------------------------------------------------------------
    Workers who raise safety and health concerns or report injuries 
should be protected against retaliation for doing so. H.R. 5663 will 
update and strengthen the anti-retaliation provisions in the OSH Act 
and bring these protections up to par with other anti-retaliation laws. 
Again, this is a much-needed change that is long overdue.
3. Abatement of Hazards During Litigation
    Under the OSH Act, when OSHA issues a citation to an employer, OSHA 
sets a date by which the employer must correct the violation, i.e., 
correct the problem that led to the citation. The vast majority of 
employers fix the problem and do not challenge OSHA's citation. But if 
the employer does challenge the citation, the abatement period is 
tolled while the case is pending, which can take years. In the 
meantime, unless the employer decides to correct the problem on its 
own, workers continue to be exposed to the hazard, putting them at risk 
of harm.
    Under the Mine Act, mine operators are required to abate violations 
even if they challenge the citation itself. The same is true under the 
state OSHA program in the state of Oregon. To our knowledge, these 
provisions have worked smoothly, and employers have been able to comply 
with these requirements without significant hardship.
    H.R. 5663 would incorporate this abatement requirement into the OSH 
Act. Except for violations that are designated ``other than serious,'' 
the period for abating the hazard would begin to run upon issuance of 
the citation, and would not be tolled in situations where an employer 
decided to challenge the citation before the Occupational Safety and 
Health Review Commission. This provision will better assure that 
workers are protected from hazards while litigation is ongoing.
    The legislation provides a safety valve for those situations where 
employers believe the abatement requirement would cause great hardship. 
H.R. 5663 establishes an expedited procedure through which employers 
may seek a stay of the abatement requirement before the Review 
Commission. The Commission is authorized to stay the abatement 
requirement in those instances where employers are able to demonstrate 
a substantial likelihood that they will succeed in challenging the 
citation, that worker health and safety will not suffer in the interim, 
and that the employer will suffer irreparable harm absent a stay. These 
factors are comparable to the factors for obtaining a stay under the 
Federal Rules of Civil Procedure. They provide a fair and expedited 
process for employers to have their day in court, while ensuring that 
workers are protected from possible harm.
    Amending the OSH Act to require employers to abate hazards during 
litigation is a significant improvement over the current law. This 
provision will enhance worker protections while providing employers due 
process to seek a stay in appropriate circumstances. We strongly 
support this provision and urge its adoption.
4. Victims and Family Members Rights
    H.R. 5663 enhances the right of victims and family members to 
participate in the OSHA enforcement process. Victims and family members 
would have the right to meet with OSHA investigators, receive copies of 
any citations, and to be heard before any settlement is reached. We 
believe these measures are important and appropriate. Victims and 
family members have a keen interest in the OSHA proceedings surrounding 
workplace injuries and fatalities, and they deserve information and the 
right to be heard.
Conclusion
    The improvements to the OSH Act in H.R. 5663 are urgently needed to 
strengthen the job safety law and protect workers from harm. The bill 
will help deter violations of the law, bring about greater compliance, 
and better protect workers who expose job hazards and exercise their 
rights. We urge the Committee and the Congress to approve the 
legislation without delay. Again, thank you for the opportunity to 
testify today. I would be happy to respond to any questions.

  FEDERAL OSHA AND STATE OSHA PLAN INSPECTION/ENFORCEMENT ACTIVITY, FY
                                  2009
------------------------------------------------------------------------
                                        Federal OSHA     State plan OSHA
------------------------------------------------------------------------
Inspections.........................            39,057            61,310
    Safety..........................            33,256            48,221
    Health..........................             5,801            13,089
    Complaints......................             6,675             8,612
    Programmed......................            24,336            39,676
    Construction....................            23,952            26,245
    Maritime........................               338                47
    Manufacturing...................             7,312             9,998
    Other...........................             7,455            25,020
Employees Covered by Inspections....         1,332,583         3,011,179
Average Case Hours/Inspection:
    Safety..........................              18.5              16.1
    Health..........................              34.8              27.0
Violations--Total...................            87,491           129,289
    Willful.........................               395               171
    Repeat..........................             2,750             2,046
    Serious.........................            67,439            55,090
    Unclassified....................                10                14
    Other...........................            16,697            71,456
    FTA.............................               200               512
Penalties--Total ($)................        94,981,842        59,778,046
    Willful.........................        13,537,230         3,466,130
    Repeat..........................        10,644,022         3,594,205
    Serious.........................        65,072,944        43,018,854
    Unclassified....................           128,000           131,500
    Other...........................         3,907,648         7,390,658
    FTA.............................         1,691,998         2,176,699
Average Penalty/Violation ($).......             1,086               462
    Willful.........................            34,271            20,270
    Repeat..........................             3,871             1,757
    Serious.........................               965               781
    Unclassified....................            12,800             9,393
    Other...........................               234               103
    FTA.............................             8,460             4,251
Percent Inspections with Citations                7.1%             13.1%
 Contested..........................
------------------------------------------------------------------------
Source: OSHA IMIS Inspection Reports, FY 20097,i1,s50,9,9,9,9,9,9
Alabama.............................                20           298,010
Alaska..............................                 5            21,900
Arizona.............................                17           164,995
Arkansas............................                15           166,675
California..........................               160         1,640,385
Colorado............................                11           278,400
Connecticut.........................                 8            42,475
Delaware............................                 3            42,040
Florida.............................                81           643,166
Georgia.............................                43           376,205
Hawaii..............................                 6            28,625
Idaho...............................                 5            54,350
Illinois............................                52           129,315
Indiana.............................                42           172,913
Iowa................................                21           246,900
Kansas..............................                12           178,550
Kentucky............................                31           125,275
Louisiana...........................                48            99,215
Maine...............................                 6            14,160
Maryland............................                20            90,676
Massachusetts.......................                23           148,200
Michigan............................                28           142,090
Minnesota...........................                14           260,600
Mississippi.........................                14           106,360
Missouri............................                20           117,125
Montana.............................                 5            13,000
Nebraska............................                16           312,737
Nevada..............................                11            93,100
New Hampshire.......................                 3             3,500
New Jersey..........................                39           201,567
New Mexico..........................                 6            23,200
New York............................                53           625,632
North Carolina......................                54           171,245
North Dakota........................                 4            27,962
Ohio................................                39           134,895
Oklahoma............................                25           281,150
Oregon..............................                25            79,250
Pennsylvania........................                43           262,315
Rhode Island........................                 4             7,900
South Carolina......................                17            13,745
South Dakota........................                 3             7,605
Tennessee...........................                42           195,920
Texas...............................               167         1,562,851
Utah................................                14            21,600
Vermont.............................                 2             5,250
Virginia............................                36           678,652
Washington..........................                32            77,625
West Virginia.......................                10           242,880
Wisconsin...........................                23           110,045
Wyoming.............................                 8            33,156
                                     -----------------------------------
  National Median State Plan States.  ................  ................
  National Median Federal States....  ................  ................
                                     -----------------------------------
    Total or National Average\4\....             1,450        11,118,267
\1\OSHA IMIS Fatality Inspection Reports, FY 2009. Report was
  issued on January 7, 2010.
\2\Median initial and median current penalties on FY 2009
  fatality investigations provided by OSHA on April 14, 2010.
\3\Under the OSHAct, states may operate their own OSHA programs.
  Connecticut, Illinois, New Jersey and New York have state programs
  covering state and local employees only. Twenty-one states and one
  territory have state OSHA programs covering both public-and private-
  sector workers.
\4\National average is per fatality investigation for all
  federal OSHA and state OSHA plan states combined. Federal OSHA average
  is $8,152 per fatality investigation; state plan OSHA states average
  is $7,032 per fatality investigation.


                                COMPARISON OF ANTIRETALIATION PROVISIONS
----------------------------------------------------------------------------------------------------------------
                                                                                                   Right to get
                           Statute                                Statute of      Preliminary     hearing before
                                                                 limitations     reinstatement     ALJ or court
----------------------------------------------------------------------------------------------------------------
Federal Railroad Safety Act (amended 2007)...................        180 days              Yes              Yes
Consumer Product Safety Improvement Act (2008)...............        180 days              Yes              Yes
Surface Transportation Assistance Act (1982, amended 2007)...        180 days              Yes              Yes
Aviation Investment And Reform Act (2000)....................         90 days              Yes              Yes
Sarbanes-Oxley (2002)........................................         90 days              Yes              Yes
Patient Protection and Affordable Care Act (2010)............        180 days              Yes              Yes
Clean Air Act (1977).........................................         30 days              Yes              Yes
Mine Safety and Health Act (1977)............................         60 days              Yes              Yes
OSH Act (1970)...............................................         30 days               No               No
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 
    Chairman Miller. Mr. Stewart, again, thank you. Mr. Roberts 
referred to your courage.
    I made the statement at the end of the hearing in Beckley 
that this is an official oversight hearing, this is a 
continuation of our investigation, and that people ought to 
understand that any actions of intimidation are an action 
against obstructing the official duties of this congressional 
committee. But thank you very much for being here.
    I was always mystified when I first started working in my 
home town. I grew up in a refinery town, and there used to be a 
big clock out in front, or a big calendar, and there were 
always accident-free days. When I got inside the refinery over 
a number of years, working there in the summer and after school 
and different times, I was always amazed when you would see 
people get just crushed, and the next day I would look at the 
clock to see if it was up there that we lost a day here. And I 
would say, ``What happened to that guy?'' And they would say, 
``He is here, he is on site.'' They had him show up. They got 
him to the county hospital, and he is back on site, but he 
isn't on our team anymore because he can't walk or whatever.
    So I always thought that was a little bit misleading, but I 
always look at it when I visit the different refineries, and 
they are still doing it. But thank you for being here.
    It just amazes me, there is nothing corporations fear more 
than shareholders with power or workers with power. They just 
can't get over the idea that maybe--they keep talking about 
their obligation to the shareholders and their care for their 
workers, and yet they just don't want them to have any power, 
not even to be able to stop an unsafe workplace.
    Mr. Grayson, let me ask you a question here. As I look 
through your data and your Safe Performance Index, when I look 
at the longwall mines, and I think there were 40 longwall 
mines, is this the universe of longwall mines? Are there more?
    Mr. Grayson. Yes, sir, that is correct. There were 40 
longwall mines that were active. There are two others in--and 
one that was not yet active.
    Chairman Miller. So of the active ones in 2009, a quarter 
of them essentially had no withdrawal orders at all during that 
calendar year.
    Mr. Grayson. That is approximately correct, yes, about a 
quarter.
    Chairman Miller. And when you get down to number 22, before 
you get to six withdrawal orders.
    Mr. Grayson. Number 22.
    Chairman Miller. I think it is 23. Shoal Creek, is it? You 
get down to Shoal Creek, which I think had five, and the next 
one has six. And then you get down to the bottom of this 40, 
and you get 56 withdrawal orders in one calendar year, and that 
is the Massey mine. So one thing, apparently it is possible to 
operate a mine without a withdrawal order.
    Mr. Grayson. Oh, yeah.
    Chairman Miller. A quarter of them are doing that, and we 
are dealing with a substantially small number.
    Mr. Grayson. Of all the 82 mines, 20 of 21 did not have an 
order of the top 25 percent. Of the top 25 percent mines, 21 of 
them out of 84 is what it was because there were two duplicate 
mines, but 20 out of 21 had no orders.
    Chairman Miller. And your Safe Performance Index is 
designed to provide intensity levels as to the seriousness of 
these various incidents; is that correct? I am oversimplifying, 
I am sorry.
    Mr. Grayson. Yes. The two highest weighting factors are on 
severity measure, which includes the statutory charges for 
fatalities and disabilities. But the highest weight also goes 
to the orders.
    Chairman Miller. And you think that would help us, as 
opposed to the current Patterns of Violation, exactly how?
    [The information follows:]
    
    
    Mr. Grayson. Well, on there, we are getting to the root of 
the problem that everyone has alluded to. And that is, it is a 
very serious thing to take away the opportunities for 
fatalities as well. So focusing on a mine that has high injury 
rates and/or high days that are lost is imperative to take care 
of that part of the safety culture. And then the other part of 
it is, of course--is the orders, which are the most severe, if 
you will, of the conditions that are being found and cited. And 
then S&S would follow after that.
    Chairman Miller. And so you think that would give a more 
accurate picture of what is going on in the mines overall.
    Mr. Grayson. Yes, sir. I think we need both of those.
    Chairman Miller. Thank you.
    Mr. Watzman, you said that you are concerned about this, or 
you oppose the provisions in this mine where operators pay 
miners their full wages if an operator closes an unsafe mine 
area in anticipation of a forthcoming MSHA closure order.
    Mr. Watzman. Our concern there, Mr. Chairman, is that it 
will detract from operators taking preemptive action to address 
safety conditions in the mine.
    Chairman Miller. You have a list of operators that would 
not close an unsafe area if they had to pay the workers in that 
area?
    Mr. Watzman. No. I think operators would close an unsafe 
area of the mine. In fact, they do that today.
    Chairman Miller. So then which is it? This is a problem or 
it isn't?
    Mr. Watzman. It is a problem, Mr. Chairman.
    Chairman Miller. For what operators?
    Mr. Watzman. You have to look at the totality of the 
legislation. I don't think the current staff----
    Chairman Miller. Well, let's look at this provision for a 
second. Is it a problem or isn't it a problem.
    Mr. Watzman. I am going to speak to this provision if I 
could.
    The current law sets limits on the period of time under 
which a miner must be paid when there is a safety violation 
when there is an order issued. It is defined in the statute. 
The legislation that you have introduced and is before the 
committee creates an open-ended situation where the operator 
doesn't always control the outcome of that situation. The 
operator has to work with the Federal Mine Safety and Health 
Administration to have that order lifted, and there are no 
controls we have over the actions of the Mine Safety and Health 
Administration. So during the pendency of our discussions with 
the agency, we have to continue to pay miners in perpetuity, 
and that is a problem for us.
    Chairman Miller. And the operator has the ability in a 
large mine to continue to mine coal, because that area may be 
closed, but not prevent the operation of the mine; but the 
worker who has been exposed to an unsafe work area, he just 
subsidizes that with his loss of wages.
    Mr. Watzman. Well, that is not always the case, Mr. 
Chairman. It depends on how the order is written. The order may 
apply to a particular area of a mine or it may apply to its 
entirety.
    Chairman Miller. I understand that. I am making the point 
that the operator may not necessarily--the damage to the miner 
may be more severe than the damage to the operator here, but 
the miner may not have created the unsafe working condition.
    Mr. Watzman. Well, I agree with you, but what we want to do 
is prevent the damage from either one----
    Chairman Miller. I would still like a list where that is a 
problem, where they might not close an unsafe area because they 
might have to pay workers. I would like to see the names of the 
individuals.
    Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman. Thanks again to our 
witnesses.
    Mr. Stewart, I thank you. You gave very compelling 
testimony in West Virginia and you are here again today. You 
certainly outlined an unacceptable and untenable situation.
    That brings me to Mr. Roberts' quote when he was talking 
about the 41 fatalities. I believe you said, sir, that ``we 
have got to find out why,'' and I couldn't agree with you more. 
We have at least three investigations going on, and we do have 
to find out why.
    Now, Professor Grayson, I want to thank you for your 
research in the development of the Safe Performance Index. I 
think that is very, very helpful to us. And I hope anything 
that goes forward as we continue to work with this legislation 
will include that. It really is very, very impressive work.
    Mr. Watzman, I am going to sort of turn to you and Mr. 
Snare here for just a minute about section 403--I know I have 
to kind of dig around in here--403, the Underground Coal Miner 
Employment Standard. It says, ``In general, an operator of an 
underground coal mine may not discharge or constructively 
discharge a miner who is paid on an hourly basis and employed 
in an underground coal mine without reasonable job-related 
grounds based on a failure to satisfactorily''--and so forth, 
that section of the bill.
    This does appear to create a brand new employment standard, 
not for all mine workers, but just for underground coal 
operations. And that sort of raises the obvious question of why 
this provision singles out underground coal miners from 
protection while excluding all other workers in the mine 
industry.
    But it really bothers me a little bit that this provision 
nullifies the at-will employment doctrine that is an important 
component of all of our Federal labor laws.
    Do you have any comments about these provisions and what 
this may mean for mine operators?
    Mr. Watzman. Mr. Kline, we share your concern as to the 
impact this has on the at-will employment doctrine. Quite 
honestly, we don't know why this is here. We don't see the 
necessity for creating a special category of protection for 
underground coal miners as opposed to the rest of the 
workforce. This is one that we hope over time to be able to 
have further discussion with the authors of the bill to 
understand the necessity, the need for this, and hopefully work 
with them to try to come to a resolution once we better 
understand the need.
    Mr. Kline. Okay. Thank you.
    I had a follow-on question for Mr. Snare, but instead I am 
going to pick up on the Politico article that ran this morning, 
``Danger on the Hill,'' the one Dr. Price referred to. And the 
article says, ``Workplace safety experts say that if Congress 
were a private sector business it would be at risk for a 
massive fine from government regulators.''
    My question is, under 5663, the language that we are 
looking at here, does it appear to you that OSHA would have the 
ability to shut down the entire congressional complex in order 
to achieve abatement if it were to apply to Congress?
    Mr. Snare. Well, Congressman Kline, I think your question 
really illustrates the problems and concerns generally that we 
have raised with this particular bill. I mean, what is the way 
that is going to force Congress to address these particular 
issues? There were 6,300 hazards--I saw the same article--a 
quarter of which were involving life-threatening or potential 
fatalities. What is the best way at the end of the day to 
resolve those hazards and make the job site safer? It is to 
work in a cooperative spirit in some kind of way to set up a 
mechanism by which to resolve it cooperatively, or to come in 
with litigation, issue an immediate abatement order and 
essentially then put the onus to somehow try to shut down 
Congress.
    You heard the questions from Congressman Price to Solicitor 
Smith as to who they are going to go after in terms of an 
officer or director. There are all sorts of problems with this. 
And again, it is a recipe for confusion in my judgment.
    Mr. Kline. Thank you. I am sure that there are probably 
millions of Americans who would applaud shutting down the 
entire complex, and maybe some of us on some given days. But it 
does raise sort of an interesting question if you look at this 
in the context of other businesses, you can shut down an entire 
complex over this.
    Mr. Chairman, I know we are running out of time and we have 
some members who would still like to ask questions, so I will 
yield back the balance of my time.
    I am sorry, did you have a comment.
    Ms. Rhinehart. I was just hoping that I could just make a 
comment in response to both of your points.
    Mr. Kline. Absolutely.
    Ms. Rhinehart. The first, in regard to the just cause 
provision that the legislation puts in place for underground 
coal miners and the fact that that changes the at-will 
employment situation, that is right. And Congress does that all 
the time when Congress decides that there is an important 
public policy reason behind that, when it decides that workers 
need be to protected in a different way than the at-will 
standard. So that is not unusual that Congress makes a 
determination----
    Mr. Kline. That doesn't necessarily mean it is right for 
this. That was my question to Mr. Snare.
    Ms. Rhinehart. I wouldn't say it is right, but it is 
certainly not unprecedented. Congress does that all the time.
    And in terms of OSHA shutting down Congress, the point in 
the legislation is to require employers to fix hazards, not to 
have OSHA shut down businesses. The point is on fixing the 
hazards. So the legislation applies----
    Mr. Kline. Well, thank you. If I can just interrupt for a 
minute. There is a provision, though, for shutting them down. 
So I realize that it is somewhat of an absurd example that was 
brought forth in Politico, but it does underscore the point 
that you can shut down a complex, and shutting down Congress is 
kind of another issue. I yield back.
    Chairman Miller. Ms. Woolsey.
    Ms. Woolsey. So some of you will be pleased to know that 
the enlarged PAWA bill actually covers all public employees, so 
that would be the step before including congressional offices. 
While congressional offices are covered by national labor 
relations and all other wage and hour laws now, so we can go 
the next step, and we will one of these days.
    Mr. Snare, tell me, who is the coalition? What is it made 
of? Who are these people, by name, who actually believe--
believe--that during bad economic times that our workers are 
expendable, that we don't need to protect them from hazards and 
death and poor working conditions? And also, part of it is that 
these workers, the coalition, do they believe that a 1900s-type 
of operation of mines is the way to take care of workers? I 
mean, who are these people? Can you give us a list of them?
    Mr. Snare. I am happy to, Congresswoman Woolsey, and also 
raise an issue with the premise of your question.
    The Coalition for Workplace Safety--you can go to our Web 
site--is not mysterious. There is a wide variety of trade 
associations representing small businesses, large businesses. 
Examples would include the Chamber of Commerce, Associated 
Builders and Contractors, the Retail Industry Leaders 
Association. I could name you--there are probably 30 or 40, and 
I would be happy to supplement the list representing almost 
every business in America, both large and small. It is not just 
large corporations; it would probably be single 
proprietorships. And again, to the premise of your question as 
to how they regard workers, the Coalition for Workplace 
Safety----
    Ms. Woolsey. Okay, fine. But do they know that you come 
here in front of us and say that during tough economic 
challenges, that you don't have to take care of your workers?
    Mr. Snare. That is not what I said, Congresswoman, either 
in my oral statement or in my written statement.
    Ms. Woolsey. Well, you did. You said that if we do it 
right, that workers are going to lose their jobs.
    Mr. Snare. We are merely raising the issue of the costs for 
impact, Congresswoman.
    Ms. Woolsey. Mr. Roberts, I have a question for you. For 
all of my understanding of things, why isn't every single miner 
a member of your union?
    Mr. Roberts. I would be glad to support that legislation.
    Ms. Woolsey. What are the operators doing that keep them 
from having--is something happening that keeps them from being 
able to unionize?
    Mr. Roberts. I would, just by way of example, use the Upper 
Big Branch mine, if I might. Those miners had three attempts to 
join a union there. The first vote that was held there was a 
tied vote, and unions lose on all ties. But not only is the CEO 
of this company a violator of every health and safety law 
imaginable--and every environmental law, by the way, he has had 
some of the worst environmental situations in the history of 
mining--he is also a very willful violator of the labor laws in 
this country.
    At the first vote at Upper Big Branch that ended up in a 
tie, he made it clear to those workers, your choice here is not 
whether you are union or not, your choice here is if you vote 
for the union, I am shutting this mine down. So he gave the 
workers a choice of having a job or not having a job. And we 
see that frequently, but very much so with this particular 
company that has had such a terrible health and safety record.
    Ms. Woolsey. So, Mr. Stewart, ``Goose,'' I would like you 
to speak to this question of mine.
    Mr. Stewart. Okay. I was there during those organizing 
drives. And Mr. Roberts is correct. The CEO, Mr. Blankenship--
he practically lived at that mine--had closed-door meetings 
with the employers--the union does not have that right. He 
would have diagrams and he would explain, here you get all 
these things from Massey, over here you get nothing from the 
union. He would make it look like they were going to starve if 
they voted a union in.
    Plus they would give out extraordinary bonuses. They would 
take his men on trips to Dollywood, Busch Gardens, other 
places. I never participated, I want to make that clear. And he 
would threaten to shut the mine down. I would try to tell those 
guys, ``He can't shut this mine down, that is not up to him,'' 
but they believed these things. And he would hammer into them 
day after day. And he would get enough of them convinced--
because they would look up to him like a father figure is what 
I thought--and they would say, ``Oh, he is right, he wouldn't 
lie to me.'' So he would sway enough votes to stop them from 
voting in the UMWA. So that is part of how an organizing drive 
works in the world of Massey.
    Ms. Woolsey. I have used all my time. May I ask one more 
question?
    Chairman Miller. Finish your question.
    Ms. Woolsey. All right, just quickly. So following the 
accident, do the workers still believe Mr. Blakenship is the 
good father?
    Mr. Stewart. No, ma'am, I personally don't think so; at 
least a lot of them that did before don't. But I know for a 
fact, since the accident, they still blatantly flaunt the laws.
    I know of one boy personally, he has already quit a Massey 
mine and went to a UMWA mine--there happens to be jobs 
available now. That hasn't always been the case. You either 
worked for them if you had a job or you didn't work. And so 
they abused that fear part. Yet this boy was getting low air 
ratings on the section in which he was working--same thing we 
got at UBB all the time--and he was told to put it in the fire 
boss book as correct, and he refused to do it. So he quit. He 
was able to secure another job.
    But things like that, that is just another example of how 
they just blatantly flaunt the law.
    Ms. Woolsey. Thank you so much for your honesty with us.
    Chairman Miller. Mr. Guthrie.
    Mr. Guthrie. Thank you, Mr. Chairman. I will be real brief, 
and then I am going to yield real quick.
    I think Ms. Rhinehart said $965 is the top fine for a 
fatality. And I agree, I think we need to look at that. But I 
also don't think that it was implied that businesses calculate 
$965 versus the life of somebody working when you put them in 
unsafe positions based on a low fine. I don't think businesses 
go out every day and try to put people into bad positions.
    The other one is, Mr. Roberts, you said if you want to stop 
the lawbreakers--which is true, you just listed a whole set of 
laws that Massey, you said, has violated--which I am taking 
your word for it--and there are also 31 or 41 fatalities. So 
the questions we are really asking and we are trying to sort 
out here is, we have this incident that happened, it is a 
tragedy, where laws are on the books not enforced; and if not, 
let's enforce those, because not only did this law look at this 
mine, it also expands other things at OSHA.
    But I am going to yield to my friend from West Virginia 
because we are almost out of time.
    Mrs. Capito. Thank you.
    I would like to ask Mr. Grayson, in your testimony, you 
talked about we need to facilitate the creation of a safety 
culture of prevention of hazardous conditions. A safety culture 
being across the board, not just the operator, but the miners 
themselves, the enforcement, MSHA and others that enforce the 
laws.
    From what you have heard today, we have had a lot of 
emphasis on Patterns of Violations and addressing how to create 
this culture of safety. In your opinion, does this bill 
adequately address the other issues; for instance, individual 
miner training of MSHA inspectors, and all the things that 
there have been some questions about that you probably use as 
your risk assessment as well?
    Mr. Grayson. Honestly, I can't address that one, especially 
about the training MSHA inspectors. That is an internal 
problem, obviously, that they have to solve, and I think they 
probably will solve it, but that is kind of a distinct issue. 
And the culture it is looking at is building a culture of 
safety, but it is a preventive-type culture. And I do see this 
process of remediation, once you have been identified as a 
high-risk mine, building that kind of a culture over a period 
of four quarters, those valuation points.
    Mrs. Capito. Thank you.
    Mr. Roberts, Mr. Rahall asked an interesting question in 
the last panel about the inspection site of an explosion 
turning into like a police scene and excluding anybody except 
the inspectors who are on the team to actually do the 
investigations.
    Now, you actually went into the Upper Big Branch mine. I 
would like to know, A, what you learned and your impression of 
what he posited out there? But the other thing, it has been 
kind of the topic of conversation in West Virginia, who should 
be participating in these inspections, who should be allowed 
in? What is your opinion on that?
    Mr. Roberts. Well, I think you have two possibilities to 
look at there, Congresswoman Capito. One is what the
    current law says, and whether or not we would want to go to 
something similar to what Congressman Rahall is suggesting.
    The current law allows for the miners themselves to 
determine a representative. And it is over and above whether it 
is a union mine or non-union mine. The miners at Upper Big 
Branch after this explosion designated the UMWA to be their 
representative. The law allows us as their representative to be 
a full participant in this investigation, or at least we think 
the law says that, which clearly allows us to go underground 
with the Federal and State inspectors and do everything and 
anything that they are doing.
    I was listed, by the way--it is one of the things that Mr. 
Blakenship failed to mention in his attack on allowing me to go 
underground. I would mention that I have had 39 years' 
experience in this business, been in probably as many coal 
mines as just about anybody has. So to suggest that Cecil 
Roberts shouldn't go in this mine, I was listed as one of the 
representatives when that was given to MSHA, so I could be up 
there every day if I wanted to and go into this mine every day 
with the Federal and State inspectors.
    And by the way, it was his idea to allow, as he called--I 
forget how he termed it--for others to go in this mine, he 
wanted to go. And then at the last minute his public relations 
people decided it was better to say we shouldn't allow anybody 
in the mine. He didn't go. Even his own people thought he was 
coming the day I was there.
    So the law currently says that representative miners 
clearly can be a full participant in the investigation, which I 
took advantage of that. Whether or not we could ever get to the 
point where we could make this MSHA making the mine over, I 
think they actually have, I believe, the authority to do that 
if they elected to do it. But the problem they have is obvious, 
that they would have to bring people in there to run the 
ventilation, they would have to bring people in there to make 
sure the electricity was on--I am talking about the government 
would. That inhibits going to a police state. And that is the 
problem with that approach.
    Mrs. Capito. Well, I think the bottom line for you and for 
me and everybody in this room is we want the answers, we want 
accurate answers to address this problem. So thank you very 
much.
    Mr. Guthrie. Thank you, I yield back.
    Chairman Miller. Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman. And thank you again for 
holding these hearings.
    Professor Grayson and Counsel Rhinehart, you have presented 
a very effective use of statistics. And Mr. Roberts, you bring 
the history of mining and mine regulation alive.
    Thank you for excellent testimony. And your powerful story 
about the young yet not yet certified miner is a story everyone 
in this country should hear.
    As someone who grew up in West Virginia and was raised 
with, from my earliest memory, admiration for the courage and 
the work ethic of miners, I have to tell you, Mr. Stewart, 
Goose, you are an embodiment of courage. Thank you for what you 
do, but especially thank you for what you have done today. Not 
easy, I am sure.
    With that, let me yield any remaining time to my colleague 
from West Virginia, Mr. Rahall.
    Mr. Rahall. I thank the gentleman for yielding.
    Let me just follow up and commend Mr. Stewart, as well, for 
your courage and taking the time, being with us today.
    In your testimony, you said it so well. You said, ``This 
bill must pass to keep coal companies honest or to make them 
pay the price for their unscrupulous behavior.'' Here is the 
most important line: ``Partisanship needs to be set aside on 
this legislation because human lives are at stake.''
    You said that, Goose. Thank you for saying that. Because it 
is often a fear in this contentious election year that these 
efforts may morph into a political exercise, those harshly 
against it, knowing that they have the party of ``no'' in the 
other body to stop whatever may pass this body. And I hope that 
is not the case. We owe more to the miners who perished at UBB 
than to use this issue as any political talking point.
    So I hope, Mr. Watzman, Mr. Roberts, UMWA and NMA will 
remain engaged with this committee, remain engaged with the 
staff of this committee who worked so long and hard on this 
bill, who have been on the scene, who were on the scene the 
morning after UBB happened, who have the knowledge, the 
expertise, have been around in the agencies and been around 
this Hill for decades. Let's put it that way.
    I hope you will remain engaged with them, resist the 
inertia that too often comes in election years to retreat into 
partisan corners, or each Member offer their own proposal, 
pitting one Member's proposal against another. I hope we don't 
get into that. And I hope you will agree that you will help us 
do that work together.
    I am not saying every point in this bill, every part of 
this bill is perfect. I am not saying that at all. But I do 
think it is the vehicle that we need to be engaged with. And I 
would hope all parties would allow us that opportunity.
    Let me ask a specific question and allow both of you, since 
I mentioned your names, to comment on my initial point. But 
anyway, I appreciate the concern, especially you, Mr. Watzman, 
have about the good actor operates and not being penalized by 
the provisions of this particular bill.
    But my question is, what about the good actors who are 
penalized when bad actors break the law, cut corners, and are 
allowed to get away with it?
    I heard it this past weekend. I was at a mine site in my 
district this past weekend where safety violations are few and 
far between, and they are inspected by the same inspectors as 
the other guy where the disaster occurred, just down the road 
from the UBB.
    So should we just be turning a blind eye to those bad 
actors who allow miners to die for the sake of their own 
competitive advantage in the market?
    Mr. Watzman. Thank you, Congressman. And I think the short 
answer is absolutely not. We should not be turning a blind eye 
to that. The law should be enforced, and it should be enforced 
to its fullest extent. We shouldn't condone the actions of 
anybody who is intentionally violating the law.
    It is a very strong law. The agency has the tools, and we 
encourage them to use those tools. Mine safety should not 
create a competitive advantage for one operator as opposed to 
another. That is something that we have never talked and argued 
for, nor will we ever. Mine safety should come first and 
foremost.
    And to your earlier point, let me assure you that we will 
be engaged. We have met with your staff, we have met with the 
committee staff. I think we have had good, open, honest 
discussions about the legislation. My statement identifies 
areas where we think there are areas of agreement with some 
wordsmithing around the edges.
    I mean, the pattern-of-violation system, as it currently 
exists, does not work for anybody. It doesn't work for the 
miners, it doesn't work for the mine operators, it doesn't work 
for the agency. It is not transparent. No one understands it. 
No one knows how you work your way through it, how you get off 
it.
    So there are areas where we think that there can be 
agreement. And we pledge to work with you and the other members 
of this committee to reach that agreement.
    Mr. Rahall. Thank you.
    Cecil?
    Mr. Roberts. Well, you have our commitment, Congressman, to 
work to find acceptable resolution to any problems that might 
exist here.
    But to answer your question about these operators who are 
cutting corners and putting their miners at risk, selling their 
coal cheaper into the marketplace, one of two things will 
happen here: Either the operators who are investing heavily in 
health and safety and protecting their workers and spending 
money on mine rescue and safety programs are going to have to 
quit spending that money to compete with these people over 
here, or we are going to raise these people up.
    That is the choice that Congress faces here today, in my 
opinion: We are either going to have to bring these people up 
to this standard here, or everybody is going to fall right 
here. Because you can't ask people to try to stay in business, 
they won't be able to, so as long as more and more people are 
allowed to compete on this basis.
    Mr. Rahall. Mr. Snare, let me ask you one quick last 
question. Should any worker in the United States of America 
today have to put their life in jeopardy to earn a livelihood?
    Mr. Snare. No, Congressman.
    Mr. Rahall. Thank you.
    Chairman Miller. Mr. Altmire?
    Mr. Altmire. Thank you, Mr. Chairman.
    Mr. Watzman, I talked during the first panel, you may have 
heard, about the regional enforcement with regard to MSHA. And 
I was wondering, in your experience, do you see a difference in 
the strength of enforcement among different regions?
    Mr. Watzman. I don't think it is so much a question of the 
strength of enforcement. It is a difference in terms of 
application of the standards and how a particular inspector 
within a region or a field office supervisor or a district 
manager interprets the regulatory requirements, as opposed to 
those same individuals in a different region. I mean, you see 
variability across the MSHA districts, where one will have a 
very high S&S rate for the operations under their purview, and 
another one will have an S&S rate that is significantly lower.
    So I think it is more an interpretive question. Many of 
these regulations are subjective. I mean, we don't work in a 
black-and-white environment; much of it is gradients of gray. 
And it is the interpretation of the individual as to whether or 
not a violative condition exists.
    Mr. Altmire. Thank you.
    Professor Grayson, in your work with the commission that 
you chaired, what were your findings on that?
    Mr. Grayson. We had 72 recommendations altogether, but the 
heart of entire document was that we need to build a culture of 
prevention and do everything right from top to bottom. 
Everybody in critical tasks must perform them well. Just like 
Mr. Stewart is saying. I mean, it has to be done.
    Once you do that, your S&S citations, your order rates, 
your injuries all go down, and the productivity can be 
maintained.
    Mr. Altmire. Did you find--you talked earlier about the top 
performing mines. 
    Mr. Grayson. That was not part of that commission. All we 
did is look at the----
    Mr. Altmire. Well, I understand that. But in your 
experience, is there a regional cluster of top-performing 
mines? Is there a disparity that exists?
    Mr. Grayson. I did not try to regionalize that. But, from 
the analysis I did do, it looked like--without doing the 
statistics on it, it looked like the western mines tended to be 
performing better in general, I mean, the top level.
    Mr. Altmire. Uh-huh. And was the reverse true anywhere in 
the country, where there was a region that had more work to do 
than others?
    Mr. Grayson. As I recall, it probably was southern West 
Virginia, eastern Kentucky.
    Mr. Altmire. And I would ask Professor Grayson and then Mr. 
Watzman and any other panel members who may want to comment, do 
you believe that there is a relationship between profits and 
safety, so that if you are more or less safe as a mine, that 
that is going to inversely affect your profits?
    Mr. Grayson. I have done a research study in the past and 
did not use profits but rather productivity, so tons per 
employee hour. And what we found in that study--and it was a 
pretty good-sized study--there was a direct negative 
correlation for higher productivity and lower severity measure 
in the large mines and very large mines. It wouldn't wash out 
statistically in medium-sized mines, 50 to 100. And in the 
small mines, as the productivity went up, the severity measure 
also went up. So, the more production, the less safe.
    Mr. Altmire. Mr. Watzman?
    Mr. Watzman. Well, I think the age-old saying goes that a 
safe mine is a productive mine, and that is shown time and time 
again. Safety violations unfortunately have the potential to 
lead to accidents, which leads to shutdowns of the operation, 
whether it is the operation in its entirety or a particular 
portion of the mine. So I think that there is a general 
understanding that a productive mine is a safe mine.
    Mr. Altmire. Mr. Roberts, did you want to comment?
    Mr. Roberts. I would tend to agree--well, in fact, I 
wouldn't tend to agree--I absolutely agree that you can look at 
some of the most profitable companies in this country, like 
CONSOL, for example, in your area. They have some of the most 
profitable coal mines in the United States of America. They 
invest heavily in health and safety. They have invested heavily 
in mine rescue teams. They have invested heavily in making 
their mines safe. And they are one of the most profitable 
companies in the country.
    Mr. Altmire. All right.
    Anyone else on the panel? Ms. Rhinehart?
    Ms. Rhinehart. I would just add that, in terms of the 
workplaces that are covered by the Occupational Safety and 
Health Act, that the same is true, that the good companies that 
invest in safety have lower injury, illness, and fatality 
records and lower costs related to those injuries and 
fatalities relative to other workplaces. And so it is a good 
investment.
    Mr. Snare. Congressman, I can also, just again, just echo 
Ms. Rhinehart's comments. And during my tenure at the Labor 
Department, it was our understanding at the sites that I would 
visit, employers that I would visit, those who made the 
necessary investments in safety and health were also more 
productive.
    The key is, how do you get to that point, and what are the 
best methodologies? Is it providing the necessary assistance so 
an employer understands their obligation? That is part of the 
debate we are having today.
    But, again, I think the bottom-line premise to your 
question is, you know, a safe workplace is going to be a 
productive workplace, generally.
    Mr. Altmire. Professor Grayson?
    Mr. Grayson. Yeah, one last comment, and that is relating 
to the study I described to you. The small mines, so 50 or 
fewer employees, tend not to have a resident safety person. 
They have someone who travels around. Whereas large mines have 
maybe multiple safety people. They tend to have inferior 
equipment rather than new equipment. They can't afford that, as 
well, either. And they tend to work in tougher conditions, and 
there is a general cultural difference, too, in those small 
mines from the large mines. Not all of them, but----
    Mr. Altmire. Thank you.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Mr. Kline?
    Mr. Kline. No questions. I just want to thank the 
witnesses.
    Chairman Miller. Thank you.
    I want to thank you very much for coming here, but I would 
like to make a couple of--oh, excuse me. Mr. Holt?
    Mr. Holt. Thank you, Mr. Chairman.
    I would like to ask Mr. Roberts, considering the 
importance--I mean, it is statistically clear that organized 
union mines are different in the numbers. I am wondering 
whether you think the whistleblower provisions of this 
legislation are good enough, considering that some mines, many 
miners are working in nonunionized conditions.
    Mr. Roberts. Well, I am reminded of what Eleanor Roosevelt 
said in the 1930s after visiting a coal mine--she was in 
Wheeling, West Virginia, and went across the river to Ohio and 
went in a coal mine in the 1930s. She came out, and she said, 
``There are only two ways to protect miners in this country, 
and that is legislation or unionization. It is one of the two 
or both in combination.''
    I think that the whistleblower protections in this is a 
bold step forward by this Congress if they pass this 
legislation, and I think it goes a long ways. But there is 
still--there is a culture that exists also in certain parts, 
particularly southern West Virginia and in eastern Kentucky, 
that no one can protect you from Don Blankenship, the CEO of 
Massey.
    Now, that is their fear. You may keep your job at a 
protector mine, but mines have finite lives, some 2 years, some 
10 years, some 20 years. But once that mine works out, even if 
you keep your job there, are you going to be hired by Massey at 
the next mine? The fear is you won't be, and that is the end of 
your career.
    Mr. Holt. Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Just on that point, Cecil, I think people say, well, why 
isn't this in this law? I mean, I appreciate the doctrine ``at 
will.'' I don't know where the doctrine came from, but the fact 
of the matter is, if the doctrine ``at will'' puts you in 
danger, you may want to think about changing that doctrine.
    And, Mr. Stewart, in your testimony, you said, ``I worked 
along wall in dust so thick I couldn't see my hand in front of 
my face. I couldn't breathe because of the improper 
ventilation. I once went to the assistant coordinator and asked 
him why we didn't have proper air on the long wall face. I was 
told, `It is funny, you are the only one to say anything about 
it.' My response was, `That is because they are too afraid to 
lose their jobs to say anything.'&''
    Later in your testimony, you tell us that, ``big outfits 
like Massey will always find way to fire you, regardless of the 
laws. That is why it is important to have the rights to 
challenge an unfair firing in an underground coal mine. With 
the union, you have that right. Without a union, the bills give 
the miners protection to fight firings that are not based on 
good cause.''
    So if the employers have it their way, you couldn't be 
fired in their mine for raising safety issues, but you could be 
fired for no reason. It is just a question of the time lag 
here. Nobody fires you on the spot.
    Mr. Stewart. Right.
    Chairman Miller. They just catch up with you later. Another 
day, another week, another circumstance, a different part of 
the mine, you are gone. And everybody knows why you are gone.
    Mr. Stewart. Exactly. And they use what they call ``writing 
a man up,'' for little or nothing or things they normally 
wouldn't write. They write you up a couple times, they got 
their paperwork, and then the next time he is gone. And if he 
tries to fight it, they say, ``Look, this man has been written 
up, he has not been performing properly, poor work 
performance,'' and he is gone, you know, regardless.
    I mean, I seen them fire a guy--they went to the section, 
Chris Blanchard, in fact, and asked him questions. One question 
was how many buggies he had loaded. He was a miner operator, 
and a good one. The boy said he didn't know how many. I ran a 
miner; I never knew how many buggies I loaded. I don't try to 
count them. You are concentrating on your job. Anyway, he fired 
him, said ``lack of interest in his job.''
    Chairman Miller. That is quite possible.
    But let me just say this. And I don't want Members to get 
too far away from what took place in Beckley. When you 
testified, you stunned not only the members of this committee 
and people who are pretty darn familiar with coal mining as to 
the discussions about retaliation and intimidation and about 
warning that the inspectors were coming on to the property.
    But I just wanted for the record, again, recall for the 
members of the committee that your testimony was corroborated 
by Eddie Cook, who was the uncle of Adam Morgan; by Gary 
Quarles, who was the father of Gary Wayne Quarles; of Alice 
Peters, who was the mother-in-law of Edward Dean Jones; of 
Steve Morgan, who was the father of Adam Morgan; and Clay 
Mullins, who was the brother of Rex Mullins--all who died in 
this accident, all who testified about the problems of 
intimidation and the fear in their relatives that died here 
about raising these safety issues with an outfit like Massey.
    And so we ought not to forget that. The idea that somehow 
it is sacrosanct that Massey can fire anybody for no reason at 
all, that somehow that protects these miners, their families, 
is just blown away by this testimony. And I think it is 
important that we understand that.
    And, Mr. Grayson, I want to thank you for your index. We 
looked at it very carefully. And we hope to some extent this 
legislation mirrors what you are trying to do and trying to 
point out.
    Because with all due respect to the culture--I have been 
involved with British Petroleum for many, many years. When I 
was chair of the Resources Committee, my service on the 
Resources Committee--Mr. Rahall knows about this--I have had 
more executives come into my office over the many years telling 
me how they are going to change the culture, and then something 
blows up, somebody gets killed, a spill happens, all over the 
United States of America.
    They can't change the culture because they really don't 
have any benchmarks. They don't know what is going on in that 
place. And plus, they have a problem: All they want to do is 
cut costs. Three independent commissions.
    And so this idea that good actors--you know, it wasn't 
very, very long, not long at all, before the CEO of a major oil 
company, who is out there in deepwater, said, ``We don't 
operate that way.'' I said, ``Well, you had better 
differentiate yourself, because you are about to pay the 
price.'' And sure as hell, that is going on.
    And so, with what this country saw unfold, they now want to 
know what is the safety factor, what is the culture, if you 
will.
    Now, those operators are all telling us how BP operates, 
and it is not consistent, it is not consistent on costs, it is 
not consistent on reporting, it is not consistent on worker 
protection. They have brought me their posters and said, 
``Well, anybody can pull the switch at any time to shut this 
place down.'' Well, apparently they couldn't right before the 
BP accident, because they were afraid of losing their job, and 
jobs are hard to come by.
    And so, it is easy to talk about, ``Well, we are just going 
to improve the culture.'' These laws on the books, they didn't 
improve the culture of Mr. Massey's operation, Mr. 
Blankenship's operation at Massey. But yet we know when you 
change the laws, you can change behavior. Look at driving under 
the influence, look at seatbelts. Education, combined with 
rational penalties, penalties that people are fearful of, 
behavior changes.
    So I think we have a good beginning with this draft of this 
legislation. And I want to thank you for your testimony. But 
these are critical issues, and these are critical issues that 
reflect a very complex and an inherently dangerous place. There 
is a reason why we address coal mines in this area.
    But we look forward to continuing to work with you as we 
craft this legislation. We would like to move it soon. But we 
are certainly open--I have read all of your testimony before 
coming to this hearing, and I have a lot of underlines and a 
lot of questions. So we will pour through that.
    Without objection, Members will have 14 days to submit 
additional material and questions for the hearing record, which 
I think I have another one on intimidation.
    Thank you. The committee stands adjourned.
    [Additional submissions of Mr. Miller follow:]

                                                      July 9, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Chairman Miller: The American Industrial Hygiene Association 
(AIHA) would like to take this opportunity to provide comments on your 
legislation, HR 5663, known as the ``Miner Safety and Health Act of 
2010. AIHA commends you and the cosponsors of this legislation for your 
continued interest in the health and safety of miners and workers in 
other workplaces, an issue that impacts every family in America. We are 
aware that any legislation amending the Mine Safety and Health Act and 
the Occupational Safety and Health Act will undergo considerable 
discussion. It is our hope that our comments will assist in these 
efforts.
    AIHA is the premier association serving the needs of professionals 
involved in occupational and environmental health and safety. We 
represent members practicing industrial hygiene in industry, 
government, labor, academic institutions, and independent 
organizations. AIHA and our members are committed to protecting and 
improving worker health and safety, and the health, safety and well-
being of everyone in our communities. One of AIHA's goals is to bring 
``sound science'' and the benefit of our collective professional 
experience as practicing industrial hygienists to the public policy 
process directed at improving regulatory protections for worker health 
and safety.
    It is unfortunate that one of the reasons for introduction of this 
legislation is the tragedy that occurred at the Upper Big Branch coal 
mine where 29 workers lost their lives. It is just as tragic that 11 
workers were lost in the Deepwater Horizon oil rig explosion in the 
Gulf of Mexico and that just over 5,000 worker deaths are reported each 
year in the United States. The number of worker fatalities shows us the 
need to put our full attention and resources behind efforts to protect 
each and every worker.
    AIHA is aware that the major focus of HR 5663 is to amend the Mine 
Safety and Health Act and provide major reform in response to serious 
health and safety concerns raised by miners and their families. As you 
stated ``these reforms would provide stronger oversight to ensure that 
employers comply with the law, empower workers to speak up about safety 
concerns and give the Department of Labor the tools it needs to ensure 
that all workers go home safely at the end of the day''.
    While AIHA is supportive of your efforts to reform the Mine Safety 
and Health (MSH) Act, we are also pleased you have included within HR 
5663 some of the major reform measures proposed for the Occupational 
Safety and Health (OSH) Act. Many of these reforms were found in HR 
2067, the Protecting America's Worker Act. Introduction of HR 5663 is 
another in a long line of legislative measures that attempts to provide 
the Mine Safety and Health Administration (MSHA) and the Occupational 
Safety and Health Administration (OSHA) with a fresh look at various 
issues.
    With this in mind, AIHA would like to provide the following 
comments:
Reforms to the Mine Safety and Health Act
    The responsibilities of AIHA members fall predominately under the 
rules and regulations of the Occupational Safety and Health Act, yet we 
have numerous members who work within the context of mine worker safety 
and health. In addition, AIHA members work to protect the safety and 
health of all workers, so our interest in proposals to reform the Mine 
Safety and Health Act is of importance.
    In reviewing the mine reform provisions of HR 5663, AIHA offers our 
support for the following reforms to miner health and safety:
     Making Mines with Serious and Repeated Violations Safe--
Criteria for `pattern of violations' sanctions should be revamped to 
ensure that the nation's most dangerous mine operations improve safety 
dramatically.
     Ensuring Irresponsible Operators are Held Accountable--
Maximum criminal and civil penalties should be increased and operators 
should be required to pay penalties in a timely manner.
     Giving MSHA Better Enforcement Tools--MSHA should be given 
the authority to subpoena documents and solicit testimony. The agency 
should be allowed to seek a court order to close a mine when there is a 
continuing threat to the health and safety of miners. MSHA should 
require more training of miners in unsafe mines.
     Protecting Miners Who Speak out on Unsafe Conditions--
Protections for workers who speak out about unsafe conditions should be 
strengthened and should guarantee that miners wouldn't lose pay for 
safety-related closures. Miners should be provided protection from 
dismissal unless the employer has just cause. Miners should also 
receive protections allowing them to speak freely during 
investigations.
     Updating Mine Safety Standards to Prevent Explosions: 
Outdated standards need to be updated and new standards on issues such 
as combustible dust need to be considered. New monitoring technology 
needs to be promoted.
     Increasing MSHA's Accountability--MSHA must assure 
independent investigation of the most serious accidents, require that 
mine personnel are well qualified, and ensure that inspections are 
comprehensive and well targeted.
Title VII--HR 5663 Amendments to the Occupational Safety and Health Act
    Over the course of the last fifteen years there have been numerous 
attempts to amend the Occupational Safety and Health Act. Other than a 
very few minor amendments, nearly every attempt ended in failure 
because of the inability of labor, industry and other stakeholders to 
reach an agreement on the kind of changes necessary and how best to 
make those changes. The result has been the continuation of an agency 
agenda that has become nearly impossible to complete. A lack of 
adequate funding, a shortage of personnel and a standard-setting 
process that many believe is ``broken'' has resulted in a view by most 
employees and employers, as well as occupational safety and health 
professionals, of an agency that was losing its focus in an attempt to 
protect workers. It is our hope that the proposed changes in HR 5663 
will alter this view.
    Inclusion of several reform proposals in HR 5663 is another in a 
long line of legislative measures that attempts to provide the agency 
with a fresh look at various issues. With this in mind, AIHA would like 
to provide several comments on the provisions of HR 5663 that would 
amend the Occupational Safety and Health Act.
           section 701. enhanced protection from retaliation
    AIHA supports efforts to provide whistleblower protections to 
employees reporting any injury, illness, or unsafe condition to the 
employer. For those employees who report such conditions, employees 
should not face retaliation nor should an employee be required to 
perform any employer work if the employee has a reasonable apprehension 
that performing such duties would result in serious injury to, or 
serious impairment of the health of the employee or other employees.
  section 703. correction of serious, willful, or repeated violations 
               pending contest and procedures for a stay
    AIHA supports efforts to protect workers by requiring correction of 
a hazard during such time that a citation for a serious, willful, or 
repeated violation has been filed yet is being contested by the 
employer.
    However, for those employers who file a notice of contest of the 
citation and request a stay of correction of the hazard, AIHA supports 
language that would provide the employer with the means to demonstrate 
likelihood of success on its contest to the citation, the employer will 
suffer irreparable harm absent a stay, or a stay will adversely affect 
the health and safety of workers.
                      section 705. civil penalties
                    section 706. criminal penalties
    There continues to be much debate on whether or not civil and 
criminal penalties are adequate to deter health and safety violations. 
While most employers are ``doing the right thing'' with investment in 
healthy and safe workplaces, there are still too many who avoid this 
investment in their workers because they feel the investment is not 
worth the cost. It is these employers who must be educated about the 
benefits of providing a safe and healthy workplace, and if education 
does not affect their decision-making behavior, they must be held 
accountable for making decisions that injure, kill, or sicken workers.
    For many, the minimal penalties for health and safety violations 
are a small price to pay and do not affect their decision making. It's 
just a small cost of doing business.
    Over the course of the last ten years, there have been numerous 
bipartisan legislative proposals to amend the OSH Act to increase the 
penalty provisions, both civil and criminal, for those who violate OSHA 
rules and regulations that result in serious injury or a workplace 
fatality. While these proposals have not made their way into law, it 
goes without saying that the sponsors of these measures all had the 
same goal--to assure the health and safety of every worker.
    In a position statement and white paper first adopted by AIHA more 
than ten years ago, AIHA stated that ``OSHA penalties, including 
criminal penalties, are woefully inadequate and should be at least as 
stringent as penalties for violations of environmental laws.'' AIHA's 
position on this issue has not changed over the years.
    Amending the OSH Act to address the issue of civil and criminal 
penalties is long overdue. AIHA supports increasing the penalties for 
both civil and criminal penalties.
    Civil Penalties. AIHA supports the increase in civil penalties as 
outlined in HR 5663.
    In addition, AIHA supports language in HR 5663 that considers the 
employer's history of violations and would provide for additional 
monetary increases in civil penalties if a willful or repeated 
violation caused or contributed to the death of an employee.
    Criminal Penalties. Under the ``Protecting America's Worker Act'' 
(PAWA, HR 2067), an employer could not be convicted under the criminal 
law unless that employer has acted ``willfully'' and such willful act 
caused the death or serious injury to a worker. This would require 
proof that an employer knew not only that its actions were wrong, but 
that they were unlawful as well. This ``willful'' standard is not a 
familiar one in the criminal law context and the norm is to require a 
``knowing'' standard of proof in which an actor knows that his or her 
conduct was wrong. Under this standard, employers cannot escape 
liability by claiming that they did not know what the law required. 
Note: under either standard a prosecutor would still have to prove that 
an actor is guilty beyond a reasonable doubt.
    AIHA is pleased that proposed language in HR 5663 would change a 
``willful'' act to ``any employer who knowingly violates''. AIHA 
supports this change.
    Another proposed change in HR 5663 as compared to PAWA would alter 
the definition of an employer who would be subject to criminal 
penalties from ``any responsible corporate officer'' to new language 
stating ``any officer or director''. Under current law, only a 
corporation or sole proprietor can be liable for criminal penalties. 
The language in HR 5663 broadens this definition so high-level 
officials (individuals) who act criminally can be prosecuted. This 
change clarifies that the criminal penalties can reach up to the higher 
levels of a company, providing that an officer or director who has 
engaged in criminal conduct that causes the death or serious injury to 
a worker can be prosecuted.
    Finally, AIHA supports language that would increase a criminal 
penalty violation from a misdemeanor, resulting in minimal penalties, 
to a felony.
    Consistent and substantial penalties are one of society's primary 
means to deliver some measure of justice and improve conditions that 
affect public health and worker health and safety. However, 
criminalizing willful violations through changes in the regulations 
must be carefully considered and applied. The standard of evidence for 
willful violations will have to be higher than it is today and OSHA and 
MSHA inspectors will need increased training and skill development to 
meet the level of evidence required.
    AIHA supports OSHA's efforts to ensure compliance officers achieve 
professional certification as CIHs and CSPs. A similar effort is needed 
of MSHA inspectors. Establishing criminal violations needs to be based 
on the weight of evidence collected and evaluated by health and safety 
professionals using a variety of information sources, both quantitative 
and qualitative. It is essential that the regulatory process provide 
for carefully considering the complex conditions affecting risks in the 
workplace and the determination of risk at a given point in time.
Conclusion
    AIHA applauds your efforts and sincerely hopes you will be 
successful in your endeavor to advance the cause of worker health and 
safety. We hope the input we have provided will be of benefit to you 
during the upcoming discussions and debate on MSHA and OSHA and the 
efforts to protect workers.
    AIHA offers our full assistance to Congress, OSHA, MSHA, and others 
to deliver the standards, regulations, compliance assistance and 
enforcement necessary to help achieve our mutual goal to provide 
workers and communities a healthy and safe environment and the 
prevention of occupational disease and injury.
    Should you require additional information about AIHA or if we can 
be of any further assistance to you, please contact me.
            Sincerely,
                         Michael T. Brandt, DrPH, CIH, PMP,
                                                     AIHA President
                                 ______
                                 
                    Appalachian Citizens' Law Center, Inc.,
                                                    Whitesburg, KY.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Chairman Miller: We are writing regarding the Miner Safety and 
Health Act of 2010. As attorneys at the Appalachian Citizens' Law 
Center we regularly advise and represent miners in the eastern Kentucky 
area on safety and health matters, including complaints of 
discrimination in retaliation for making safety complaints. We also 
represent miners on claims for black lung benefits. The proposed bill 
contains many substantial improvements to the present law. We 
overwhelmingly support the bill. However, there are a few areas where 
we would like to see improvements. In this letter we will specifically 
explain our support for certain provisions of the bill and ask for a 
few additional changes.
Independent Accident Investigations
    Section 101(b)(2) of the bill requires an independent investigation 
of all mine accidents involving the death of three or more miners, 
conducted by team appointed by the Secretary of Health and Human 
Services and chaired by a NIOSH representative. The provision does not 
require public hearings; it leaves that decision to the hearing panel. 
For many years MSHA has had the authority to hold public hearings but 
it has not used that authority. We support this section and would like 
to see the panel directed to hold a hearing unless there is a 
compelling reason not to hold a public hearing.
Subpoena Authority
    Section 102 explicitly grants to the Secretary power to issue 
subpoenas for the attendance and testimony of witnesses and the 
production of information. This provision is overdue as subpoena power 
is currently only available if a public hearing is called. For far too 
long accident investigations have been seriously hindered because 
investigators must rely upon voluntary interviews.
Designation of Miner Representative
    We support extending the right to designate a miners' 
representative to relatives of trapped miners and to miners unable to 
work due to a mine accident. This is a sensible provision that protects 
the right to designate a miners' representative for miners that are 
trapped or injured. Miners in the most vulnerable situations shouldn't 
have to relinquish any of their rights under the Act because they are 
involved in a mine accident.
    We also believe that Section 103 should require each mine to have 
non-management representatives of miners and that a miners' 
representative must travel with MSHA inspectors during each inspection. 
Upon being designated as the miners' representative, the individual 
miner should receive one hour additional training in miner's rights 
from MSHA.
Conflict of Interest in the Representation of Miners
    We support amending current Section 103(a) to prohibit an attorney 
from representing or purporting to represent both an operator and any 
other individual during an inspection, investigation or litigation, 
unless the individual knowingly and voluntarily waives all actual 
conflicts of interest resulting from the representation. Too often an 
attorney will purport to represent both the operator and hourly miners 
without clear indication that the hourly miners have waived any 
conflict of interest that may exist. The result is miners can be 
advised and directed based upon the best interest of the operator 
rather than upon their own individual interest. Allowing this scenario 
to continue only invites miner intimidation during inspections, 
investigations and litigation under the Act.
Pattern of Recurring Noncompliance or Accidents
    We support the overhaul of the Pattern of Violations provision in 
the Mine Act. In response to the Scotia Mine Disaster in Letcher 
County, Kentucky, which killed 23 miners and 3 mine inspectors in 1976, 
Congress sought to address chronic and repeat violators and prevent 
operators from continually piling up citations for dangerous 
conditions. The result was section 104(e) of the Mine Act which 
substantially increased the penalties for any operator that has a 
``pattern of violations.''&\1\ The Legislative history reveals that 
Congress believed the ``pattern of violations'' provision would be a 
strong enforcement tool to go after the worst violators:
    Section [104(e)] provides a new sanction which requires the 
issuance of a withdrawal order to an operator who has an established 
pattern of health and safety violations which are of such a nature as 
could significantly and substantially contribute to the cause and 
effect of mine health and safety hazards. The need for such a provision 
was forcefully demonstrated during the investigation by the 
Subcommittee on Labor of the Scotia mine disaster. * * * That 
investigation showed that the Scotia mine, as well as other mines, had 
an inspection history of recurrent violations, some of which were 
tragically related to the disasters, which the existing enforcement 
scheme was unable to address. The Committee's intention is to provide 
an effective enforcement tool to protect miners when the operator 
demonstrates his disregard for the health and safety of miners through 
an established pattern of violations.\2\
    They also believed it would send a strong signal:
    The Committee believes that this additional sequence and closure 
sanction is necessary to deal with continuing violations of the Act's 
standards. The Committee views the [104(e)(1)] notice as indicating to 
both the mine operator and the Secretary that there exists at that mine 
a serious safety and health management problem, one which permits 
continued violations of safety and health standards. The existence of 
such a pattern, should signal to both the operator and the Secretary 
that there is a need to restore the mine to effective safe and 
healthful conditions and that the mere abatement of violations as they 
are cited is insufficient.\3\ (emphasis added).
    Finally, they felt the provision provided flexibility, so a rigid 
standard wouldn't constrain the agency's use of the provision:
    It is the Committee's intention to grant the Secretary in Section 
[104(e)(4)] broad discretion in establishing criteria for determining 
when a pattern of violations exists. * * * The Committee intends that 
the criteria make clear that a pattern may be established by violations 
of different standards, as well as by violations of a particular 
standards. Moreover * * * pattern does not necessarily mean a 
prescribed number of violations of predetermined standards. * * * As 
experience with this provision increases, the Secretary may find it 
necessary to modify the criteria, and the Committee intends that the 
Secretary continually evaluate the criteria, for this purpose.
    Yet, thirty-three (33) years and more than a dozen mine disasters 
later, MSHA apparently has never issued a ``pattern of violations'' 
under the Mine Act. Thus, we support the proposed changes to the 
``Pattern'' provision. We believe that requiring a remediation plan, 
quarterly benchmarks, added inspections, training, and reporting is a 
logical and fair framework for both holding chronic violators 
accountable and significantly improving health and safety conditions in 
these problem mines.
Injunctive Authority
    We support allowing the Secretary to seek injunctive relief for ``a 
course of conduct that in the judgment of the Secretary constitutes a 
continuing hazard to the health or safety of miners, including 
violations of this Act or of mandatory health and safety standards or 
regulations under this Act.'' This provision can be used to stop an 
operator from allowing conditions to continuously deteriorate and close 
a mine before a mine disaster occurs. For example, the proposed 
provision might prevent a mine disaster like the one at Scotia, where 
the mine operated with continuing hazards that eventually led to two 
explosions and 26 deaths. Under the proposed provision, an injunction 
could be sought and granted in such a case, and miners could be 
withdrawn from the mine.
Civil Penalties
    We support the increased civil penalties, including increased 
penalties for ``Pattern'' violators and for retaliation. These 
increases will help discourage repeated violations and discourage 
retaliation against miners that engage in protected activity. As the 
Senate Committee noted in 1977, ``the civil penalty is one of the most 
effective mechanisms for insuring lasting and meaningful compliance 
with the law. * * * To be successful in the objective of including 
effective and meaningful compliance, a penalty should be of an amount 
which is sufficient to make it more economical for an operator to 
comply with the Act's requirements than it is to pay the penalties 
assessed and continue to operate while not in compliance.''&\4\
Criminal Penalties
    We support the increases in current criminal penalties in Section 
303. For far too long, no genuine deterrent was available for those 
that knowingly engage in conduct that results in serious safety or 
health violations and endangers miners. Additionally, we welcome the 
new criminal penalty in 303(b) for those who retaliate against 
informants as a significant deterrent against such actions. In turn, 
this will empower miners to raise safety and health issues at their 
mines with a decreased fear of reprisal.
    However, we implore that in addition to representatives of the 
Secretary and law enforcement officers, it should also be illegal in 
303(b) to retaliate against a person for providing information to a 
State agency charged with administering State laws relating to coal 
mine health and safety. This prevents, for example, the inconsistency 
of criminalizing retaliation against a miner for providing information 
to a federal mining inspector but not to a state mining inspector. 
Finally, we fully support the criminal penalties in Section 303 (c)(1) 
for giving an advance notice of an inspection. Our office often hears 
from miners about companies that avoid citations on the working section 
because they receive advance notice that an inspector is on the mine 
property and are then able to stop production and/or rectify illegal 
conditions before the inspector arrives.
Withdrawal Orders Following Failure to Pay
    We emphatically support proposed Section 110(l)(2), which allows 
the Secretary to issue a withdrawal order to mines that do not pay 
their civil penalties within 180 days. As the Senate Committee noted in 
1977, ``to be effective and to induce compliance, civil penalties, once 
proposed, must be assessed and collected with reasonable promptness and 
efficiency.''&\5\
    Our office produced a study in 2006 detailing the staggering number 
of unpaid fines in Kentucky.\6\ We found:
    In a review of underground coal mines in Kentucky, MSHA has allowed 
mines to operate unimpeded for years while accumulating millions of 
dollars in unpaid fines. Of Kentucky's 297 underground coal mines that 
MSHA lists in some stage of activity, or not ``abandoned,'' ninety-
seven, or approximately one-third, have years in which they paid little 
to none of the fines MSHA imposed. In the years reviewed since 1995, 
these mines have over 18,000 unpaid citations (over 8,000 of which were 
``significant and substantial'') totaling over $4.1 million in unpaid 
fines. Fourteen mines have paid only 10 to 35 percent of MSHA's 
penalties. Thirty mines have paid less than 10 percent of the fines due 
and the remaining fifty-three mines have paid nothing.
    Proposed Section 110(l)(2) would put an end to what has been 
essentially a voluntary system of fine payment and collection. No 
longer would undercapitalized operations be allowed to operate for 
years and eventually close without ever paying any of their delinquent 
fines. These operations have boldly ignored the law and rendered 
meaningless one of the most important enforcement tools for ensuring 
the safety of America's miners.
Protection from Retaliation
    Section 401 amends Section 105(c), adding to current protections 
for miners from retaliation. We enthusiastically support many of the 
additional protections including more time in which to file a 
complaint, a more sensible burden of proof for the miner, and logically 
allowing a miner to recoup his costs and expenses if he prevails in his 
claim. Too often, miners are unaware of the current statutory filing 
period and it expires before they file their claim.\7\ A 180-day filing 
period is reasonable and would prevent the dismissal of otherwise valid 
discrimination claims.
    However, we are concerned that the proposed Section 105(c) as 
written would not protect miners from retaliation in cases where an 
operator mistakenly believes that the miner filed a complaint or 
engaged in protected activity. The Federal Mine Safety and Health 
Review Commission (``Commission'') has long held that adverse action 
taken against a miner because of the mistaken suspicion or belief that 
the miner had engaged in protected activity nonetheless violates 
Sec. 105(c). Moses v. Whitley Development Corporation, 4 FMSHRC 1475 
(1982). This protection should continue in any new mine safety 
legislation.
    We support the proposed Section 105(c)(B), which would codify long-
standing Commission precedent that protects a miner from discharge or 
other forms of discrimination for refusing to perform a job assignment 
that the miner reasonably and in good faith believes to be unsafe. 
Gilbert v. Federal Mine Safety & Health Review Commission, 866 F.2d 
1433 (D.C. Cir. 1989); Simpson v. Federal Mine Safety & Health Review 
Commission, 842 F.2d 453 (D.C. Cir. 1988); Secretary of Labor on behalf 
of Robinette v. United Castle Coal Co., supra; Secretary of Labor on 
behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126 (1982).
    The Commission has previously explained the meaning and purpose of 
the good faith requirement as follows:
    ``Good faith belief simply means honest belief that a hazard 
exists. The basic purpose of this requirement is to remove from the 
Act's protection work refusals involving fraud or other forms of 
deception [such as] lying about the existence of an alleged hazard, 
deliberately causing one, or otherwise acting in bad fath * * *'' 
Robinette at 810.
    The burden of proving good faith rests with the complaining miner. 
However, the miner need not demonstrate an absence of bad faith. 
Gilbert v. Federal Mine Safety & Health Review Commission, supra; 
Secretary of Labor on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 
993 (1983). In considering whether a miner's fear was reasonable, the 
perception of a safety hazard must be viewed from the miner's 
perspective at the time of the work refusal. Secretary of Labor on 
behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529 (1983); Haro 
v. Magma Copper Co., 4 FMSHRC 1935 (1982).
    To be accorded the protection of the Act, the miner need not 
objectively prove that an actual hazard existed. Secretary of Labor on 
behalf of Hogan & Ventura v. Emerald Mines Corp., 8 FMSHRC 1066 (1986); 
Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 
516 (1984); Liggett Industries, Inc. v. Federal Mine Safety & Health 
Review Commission, 923 F.2d 150 (10th Cir. 1991). Nor must the miner 
prove a violation of a mandatory safety standard. Secretary of Labor on 
behalf of Robinette v. United Castle Coal Co., supra. In fact, the 
Commission has stressed that the miner's perception of a safety hazard 
need only be a reasonable one:
    ``[T]he `reasonable person' standard * * * lends itself to the 
interpretation that there is only one reasonable perception of any 
given hazard -that of the `reasonable person'. But the reasonable 
person is never there. Clearly reasonable minds can differ, 
particularly in a mine setting where conditions for observation and 
reaction will not be clinically aseptic.'' Robinette at 812, n.15.
    When reasonably possible, a miner refusing unsafe work should 
ordinarily communicate, or at least attempt to communicate, to some 
representative of the operator, his belief in the safety or health 
hazard at issue. Simpson v. Federal Mine Safety & Health Review 
Commission, supra; Gilbert v. Federal Mine Safety & Health Review 
Commission, supra; Secretary of Labor on behalf of Dunmire & Estle v. 
Northern Coal Co., supra.\8\
    The Commission has emphasized that it's ``purpose is promoting 
safety, and [it] will evaluate communication issues in a common sense, 
not legalistic, manner. Simple, brief communication will suffice * * 
*'' Secretary of Labor on behalf of Dunmire & Estle at 134. According 
to the Commission, the key to evaluating communication issues is what 
the ``plain meaning of [the words] would convey to any reasonable 
miner''. Id.\9\
Pre-Shift Review of Mine Conditions
    We support amending Section 303(d) of the Act to direct 
implementation of a program to ensure that every miner entering the 
mine is made aware of the current conditions of the mine, including 
hazardous conditions, health or safety violations, and the general 
conditions of the miner's assigned working area. Our office hears 
complaints from miners that hazardous conditions are too frequently not 
communicated to the oncoming shift of miners entering the mine. We also 
support the verbal communication requirement to the oncoming agent 
(e.g. mine foremen or mine examiners) of the mine's condition, 
including hazardous conditions or violations of the Act. Although this 
should be standard practice at every mine, miners still lose their 
lives due to a lack of communication, between shifts, of hazardous 
conditions in the mine.
Technology Related to Respirable Dust
    Section 504 of the bill requires the Secretary to promulgate 
regulations within two years, requiring operators ``to provide coal 
miners with the maximum feasible protection from respirable dust, 
including coal and silica dust, through environmental controls.'' We 
are concerned that this section is vague and unenforceable. The words 
``maximum feasible'' are subject to a fact-intensive determination. We 
prefer an objective standard.
    Black lung is not a disease of the past; it continues to be a 
serious problem for miners. It causes disability and death. The disease 
is also latent and progressive. The harmful dust is minute and may be 
invisible. Consequently younger miners may not believe that are 
endangering their health when they work in excessive dust. Black lung 
is also preventable--if the excessive respirable dust is eliminated the 
disease will be eliminated. X-ray surveillance is showing an increase 
in simple coal workers' pneumoconiosis and in progressive massive 
fibrosis. In 1995 NIOSH issued a Recommended Standard advising the 
respirable dust limits in coal mines be reduced to 1 mg/cubic meter. 
This bill should require nothing less than the 1995 Recommended 
Standard. We suggest that the language be changed and that within one 
year after enactment the Secretary be required to promulgate final 
regulations that require operators to reduce respirable dust to no more 
than 1 mg/cubic meter and to further require that operators provide 
coal miners with the maximum feasible protection from respirable dust.
Refresher Training on Miner Rights and Responsibilities
    Section 505 adds an hour of miners' rights training to the yearly 
refresher training already required. This is certainly welcomed and 
long overdue. Congress envisioned a robust program to train the 
nation's miners in the duties of their occupations, which includes 
thorough training of miners as to their statutory rights. But, the 
present program has systemic shortcomings.\10\ The result is that a 
large number of miners do not have a thorough understanding of their 
statutory rights and as a consequence they are unable to exercise such 
rights.
    Training miners as to their statutory rights is an integral part of 
the Mine Act's requirements for health and safety training. For 
example, for new underground miners:
    Such training shall include instruction in the statutory rights of 
miners and their representatives under this Act, use of the self-rescue 
device and use of respiratory devices, hazard recognition, escapeways, 
walk around training, emergency procedures, basic ventilation, basic 
roof control, electrical hazards, first aid, and the health and safety 
aspects of the task to which he will be assigned.\11\ (emphasis added).
    Similarly, for new surface miners, Such training shall include 
instruction in the statutory rights of miners and their representatives 
under this Act, use of the self-rescue device where appropriate and use 
of respiratory devices where appropriate, hazard recognition, emergency 
procedures, electrical hazards, first aid, walk around training and the 
health and safety aspects of the task to which he will be assigned.\12\ 
(emphasis added).
    However, the Mine Act did not require miners' rights training 
during miners' annual refresher training. Thus, MSHA requires statutory 
rights training primarily only for new miners. This obviously presents 
a problem, because even if new miners received the most dynamic 
statutory rights training, such knowledge fades over time. A miner may 
not need to exercise his or her statutory rights until several years 
into a mining career. At that juncture, if such miners have had 
relevant training only at the outset of their careers, they often do 
not know their statutory rights well and cannot protect themselves. An 
obvious solution to this dilemma is to require statutory rights 
training in annual refresher training. Thankfully, the proposed 
amendment to Section 115(a)(3) cures this significant failure to 
require any follow-up miners' rights training by requiring it during 
annual refresher training.
    In passing the Mine Act, Congress realized that miners must play a 
crucial role in maintaining a safe and healthy workplace:
    If our national mine safety and health program is to be truly 
effective, miners will have to play an active part in the enforcement 
of the Act. The Committee is cognizant that if miners are to be 
encouraged to be active in matters of safety and health, they must be 
protected against any possible discrimination which they might suffer 
as a result of their participation.\13\
    Because miners know the day-to-day work conditions as well as or 
better than anyone, obviously they should be encouraged to insist on 
maintaining a safe and healthy workplace. They are in a unique position 
to monitor workplace conditions when inspectors are absent. However, in 
our experience many miners do not know that they can, under the law, 
voice concerns about workplace health and safety, refuse to perform 
unsafe work, review and give input to many aspects of an operator's 
plans for mining, or speak with MSHA inspectors and investigators 
without retaliation. Many miners do not realize that they may designate 
a representative to perform numerous functions under the Mine Act, and 
that such a representative need not necessarily be affiliated with a 
labor union.
    We also applaud the proposed change in the methods by which miners 
receive statutory rights training. Operators and management personnel 
should not be permitted to provide any of the required statutory rights 
training to miners. There is simply too great a conflict of interest to 
permit mine operators to conduct statutory rights training. Operators 
have incentive to downplay the expansiveness and importance of these 
rights, the key role which Congress envisioned miners playing in 
regulation of the workplace, and the particulars of how miners can most 
effectively and fairly exercise such rights in the face of operator 
obstinacy and wrongdoing. Instead, miners should receive statutory 
rights training only from trainers who are independent of mine 
operators and Section 505 provides this necessary independence.
    The additional training is necessary to inform miners of their 
statutory rights under the Act, which include, but are not limited to:
    Protection against discrimination for exercising any rights under 
the Mine Act How-to's of naming a miners' representative for the 
various functions a representative can serve under the Mine Act and its 
implementing regulations
    Participation in inspections Reporting and notifying inspectors of 
violations and imminent dangers, and requesting inspections
    Pay for being idled by withdrawal order Contesting enforcement 
actions Participation in investigations where dangerous conditions 
cannot be corrected with existing technology
    Review of imminent danger orders Participation in cases before 
Federal Mine Safety Health Review Commission that affect the miner
    Part 48 training rights, including:
     Training during working hours
     Pay while receiving training
     Receiving training records from operator
     Protection from discrimination and loss of pay for lack of 
training
     Review of all types of Part 48 training plans
    Free examinations to ascertain exposure to toxic materials or 
harmful agents Request of Department of Health and Human Services to 
study/research substance in mine environment for toxicity, or whether 
physical agents/equipment within mine are dangerous
    Availability of chest x-rays free of charge, including explanation 
of intervals when such x-rays are to be made available
    Transfer to less dusty atmosphere upon black lung diagnosis Review 
and comment upon/objection to proposed standards, including legal 
challenges to proposed standards
    Request to modify application of a certain safety standard at a 
mine, and participation in MSHA's decision when operator requests such 
a modification
    Right to access information (recordings, findings, reports, 
citations, notices, orders, etc.) within MSHA and Department of Health 
and Human Resources
    Observation of operator's monitoring of miner's exposure to toxics 
and other harmful agents, and access to records of exposure and 
information about operator abatement in cases of overexposure
    Access to operator's accident records and reports Notice of MSHA 
proposed civil penalty levied against operator Operator posting of MSHA 
orders, citations, notices, etc., as well as receipt of same by miners' 
representative
    Review of roof control plan and instruction in revision to such 
plan Review of mine map illustrating roof falls Notification of and 
instruction on escape from area where ground failure prevents travel 
out of the section through the tailgate side of a longwall section
    Review of records of examinations and reports (pre-shift 
examinations, weekly examinations for hazardous conditions, weekly 
ventilation examinations, daily reports of mine foremen and assistant 
mine foremen)
    Review of records of electrical examinations and maps showing 
stationary electrical installations
    Review of underground mine maps
    Operator's notification of submission of new ventilation plan or 
revision to existing ventilation plan, review of existing ventilation 
plan, comment upon proposed ventilation plan and any proposed 
revisions, and instruction from operator on ventilation plan's 
provisions
    Review of records of examination of main mine fan Review of records 
of examination of methane monitors Review of records of torque/tension 
tests for roof bolts Review of records of tests of ATRS roof support/
structural capacity Special instruction when rehabilitating areas with 
unsupported roof Operator posting of escapeway maps and notification of 
changes to escapeways Participation in escapeway drills Posting and 
explanation of procedures to follow when mining into inaccessible areas 
Review of records of diesel equipment fire suppression systems, fuel 
transportation units, and underground fuel storage facilities, as well 
as records of maintenance of diesel equipment and training records of 
those operating diesel equipment
    Review and comment upon emergency response plans Any other rights 
set forth in either statute or regulation
    This additional training will highlight to miners that they are 
expected to exercise their statutory rights. A more informed and 
empowered miner workforce would decrease the odds that conditions in a 
mine could deteriorate to the point that a mine disaster could occur.
Authority to Mandate Additional Training
    We support amending Section 115 of the Act to allow the Secretary 
to order additional training if a serious or fatal accident has 
occurred at the mine, the mine's accident and injury rates, citations 
or withdrawal orders are above average and if it would benefit the 
health and safety of miners at the mine. This is a common sense 
provision that allows training to be mandated when safety or health 
deficiencies have been proven at the mine.
Black Lung Medical Reports
    Section 603 is a needed addition to the black lung benefits claims 
practice. Coal mine operators who are named as the responsible operator 
on a black lung claim (and the operator's insurance carrier) by law are 
allowed to require the miner to submit to two pulmonary evaluations 
performed by doctors of the operator's choosing. Such evaluations 
typically consist of obtaining a patient history, conducting a physical 
examination, and obtaining a pulmonary function test, an x-ray and an 
arterial blood gas test. In some cases operators defending against a 
claim have sent miners to be evaluated and have either not obtained a 
written report from the examining physician (after no doubt being 
informed verbally and deciding for litigation reasons not to have the 
report submitted in writing) or have obtained a report but not provided 
the complete report to the miner. The miner should be informed as to 
the complete results of the evaluation and the diagnoses and 
conclusions of the examining physician.
    Thank you for your consideration of our comments. If we can answer 
any questions or provide further information please contact us. We 
truly appreciate your efforts on behalf of working and disabled miners 
and their families.
            Sincerely,
                       Stephen A. Sanders, Deputy Director,
                                  Appalachian Citizens' Law Center.
                                endnotes
    \1\&30 U.S.C. Sec.  814(e).
    \2\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
    \3\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
    \4\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
    \5\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
    \6\&We have attached a copy of the study to this letter. See ``U.S. 
is Reducing Safety Penalties for Mine Flaws,'' The New York Times, 
March 2, 2006, pg. A1.
    \7\&For example, a 180 day filing period would avoid a situation 
like in Fulmer v. Mettiki Coal Corp, where the miner's claim was 
dismissed although he asserted that he visited MSHA within 60 days, but 
was not informed of the time limit for filing. Disturbingly in this 
case, further appointments with MSHA were rescheduled until Fulmer was 
finally asked if his discrimination investigation could be ``put off 
until after hunting season and the holidays.'' See http://
www.fmshrc.gov/decisions/alj/yk2007-52.pdf.
    \8\&The Commission has stated that ``[i]f possible, the 
communication should ordinarily be made before the work refusal, but 
depending on circumstances, may also be made reasonably soon after the 
refusal''. Northern Coal Co. at 133.
    \9\&Even where it is reasonably possible for the miner to 
communicate his safety concerns to the operator, unusual circumstances 
-such as futility -may excuse a failure to communicate. Northern Coal 
Co. at 133; Simpson at 459-460.
    \10\&The portion of our letter regarding miners' rights training 
was a part of a Petition for Rulemaking submitted to MSHA in 2008. We 
asked MSHA to increase the frequency and quality of miners' rights 
training as they are able under their rulemaking authority. MSHA denied 
the Petition in full. For example, in response to a request that all 
miners be provided with a copy of MSHA's ``A Guide To Miners' Rights 
and Responsibilities Under the Federal Mine Safety and Health Act of 
1977,'' the agency stated that the handbook ``is available to miners on 
MSHA's website.'' April 8, 2008 Letter from Acting Assistant Secretary, 
Richard E. Stickler. Anyone who had ever viewed MSHA's complicated 
website would understand that this was essentially non-responsive. As 
of today's letter, access to information on miners' rights isn't noted 
on MSHA's homepage, despite the inclusion of over 130 other topic 
headings.
    \11\&30 U.S.C. Sec.  825(a)(1).
    \12\&30 U.S.C. Sec.  825(a)(2).
    \13\&S. Rep. No. 95-181, 95Cong. 1st Sess. 36 (1977)
                                 ______
                                 
                           FOR IMMEDIATE RELEASE: January 26, 2006.

                MSHA Fails to Collect Millions in Fines
    scores of kentucky underground coal mines ignore civil penalties

                            By Wes Addington

    David G. Dye, the acting administrator of the Mine Safety and 
Health Administration (MSHA), testified before the U.S. Senate 
Subcommittee on Labor, Health and Human Services, and Education on 
Monday, January 23, 2005. Dye subsequently walked out of the hearing 
despite Sen. Arlen Specter's request for him to stay to listen to 
additional testimony and answer follow-up questions.
---------------------------------------------------------------------------
    Wes Addington is an attorney at the Appalachian Citizens Law 
Center's Mine Safety Project in Prestonsburg, Kentucky, and an Equal 
Justice Works Fellow.
---------------------------------------------------------------------------
    During the hearing, Dye noted that from 2000 to 2005, total 
citations and orders at coal mines increased by 18 percent and 
``significant and substantial'' citations and orders increased by 11 
percent. A ``significant and substantial'' violation is one that is 
reasonably likely to result in a serious injury. MSHA issued a press 
release following the hearing trumpeting Dye's comments about ``MSHA's 
aggressive enforcement record.''
    However, issuing citations is only half of the enforcement 
procedure under federal law. The system of penalty assessment and 
collection is the other half. Federal regulations instruct that any 
mine that violates a mandatory health or safety regulation ``shall be 
assessed a civil penalty.'' The regulations further explain that the 
purpose of these fines is not as punishment, but ``to maximize the 
incentives for mine operators to prevent and correct hazardous 
conditions.'' Additionally, a purpose of the civil penalty regulations 
is ``to assure the prompt and efficient processing and collection of 
penalties.''
    In a review of underground coal mines in Kentucky, MSHA has allowed 
mines to operate unimpeded for years while accumulating millions of 
dollars in unpaid fines. Of Kentucky's 297 underground coal mines that 
MSHA lists in some stage of activity, or not ``abandoned,'' ninety-
seven, or approximately one-third, have years in which they paid little 
to none of the fines MSHA imposed.* In the years reviewed since 1995, 
these mines have over 18,000 unpaid citations (over 8,000 of which were 
``significant and substantial'') totaling over $4.1 million in unpaid 
fines. Fourteen mines have paid only 10 to 35 percent of MSHA's 
penalties. Thirty mines have paid less than 10 percent of the fines due 
and the remaining fifty-three mines have paid nothing.
    [A1] In order to tout an ``aggressive enforcement record,'' MSHA 
must collect fines on unpaid citations. Congress has long agreed. In 
their 1977 report leading to the passage of the current Federal Mine 
Safety and Health Act, the United States Senate ``firmly believe[d] 
that the civil penalty is one of the most effective mechanisms for 
insuring lasting and meaningful compliance [A2][A3][A4][A5] with the 
law.'' The Senate was ``disturbed'' by the lax enforcement of the civil 
penalty system and concluded that ``the assessment and [collection of] 
civil penalties * * * have resulted in penalties which are much too 
low, and paid much too long after the underlying violation to 
effectively induce meaningful operator compliance.''
    Unfortunately, nearly thirty years after the Senate's report and 
the 1977 Act, the payment of fines assessed by MSHA is still 
essentially voluntary. Otherwise, Kentucky coal mines would not be 
allowed to operate year after year, accumulating hundreds of unpaid 
``significant and substantial'' citations. This problem is compounded 
because Kentucky mine safety regulators do not currently levy fines in 
conjunction with citations issued at the state level.
    The Senate was correct. In order ``to effectively induce 
compliance, the penalty must be paid by the operator in reasonably 
close time proximity to the occurrence of the underlying violation.'' 
Allowing penalty assessments to remain unpaid for over a decade is not 
reasonable. It's unacceptable.
    MSHA's failure to enforce their penalties for safety violations not 
only endangers coal miners, but their own personnel. MSHA inspectors 
not only have to inspect the nation's safest mines, but also the 
nation's most dangerous ones. It's a thankless job. Every day, 
inspectors travel underground to spot unsafe conditions and issue 
citations and orders, and in turn, save miners' lives. Yet, after all 
of the work and risk from inspectors in each district office, MSHA 
Headquarters in Arlington, Va., allows thousands of citations to go 
unpaid. It's a slap in the face to coal miners and coal mine 
inspectors, not an ``aggressive enforcement record.''
     Because of the sheer volume of unpaid citations I 
encountered, only Kentucky underground coal mines that are currently 
listed as ``active,'' ``temporarily idled,'' ``intermittent,'' 
currently ``non-producing,'' or ``new mine'' were reviewed. There are 
also over 300 surface or ``strip'' mines and 150 coal facilities in 
Kentucky currently in these five stages that were not reviewed.
    Over 12,000 Kentucky mines are currently listed as abandoned and 
were not reviewed. Some of these mines are truly abandoned but others 
could reopen at anytime. For example, an underground mine that has 
never paid any civil penalties, was operating in 2005, changed 
ownership, and is currently listed as abandoned.
    This review did not take into account other states' coal mines, nor 
any of the non-coal mines that MSHA regulates in their metal/non-metal 
division. Currently there are 141 non-coal mines operating in Kentucky.
    The review's sample only included mines that had a year or years in 
which they paid little or none of MSHA's fines. Thus, this is not an 
exhaustive review of unpaid citations in Kentucky's underground mines. 
Finally, MSHA's online Data Retrieval System only lists citations since 
1995.
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                  Prepared Statement of ORC Worldwide

    ORC Worldwide is a global human resources consulting firm whose 
Washington, DC office has for nearly 40 years provided a broad array of 
specialized occupational safety and health services to businesses and 
other organizations. Currently, approximately 120 leading global 
corporations in more than 20 industry sectors are members of ORC's 
Occupational Safety and Health (OSH) networks. The focus of these 
networks is to help ORC members achieve safety and health excellence by 
promoting effective occupational safety and health programs, 
benchmarking and sharing best practices, and creating new strategies 
and tools to improve safety and health performance. ORC is also an 
industry voice on national and global safety and health policy issues. 
The activities of ORC's OSH networks are based on the premise that 
providing safe and healthful working conditions is the mutual concern 
of employers, workers and government agencies and that cooperation and 
collaboration among these key stakeholders is essential to finding 
solutions to safety and health issues.
    It should be noted that companies that are members of ORC's OSH 
networks have provided information, opinion and advice to ORC in the 
development of its positions contained herein; however, these comments 
are solely those of ORC and may differ from the views and comments of 
individual member companies. ORC's comments below are exclusively 
focused on the provisions of Title VII of HR 5663 and do not extend to 
the other provisions of the legislation.
General Comments on Title VII of HR 5663
    ORC has closely followed the content and progress of the various 
OSHA reform efforts that have been introduced in Congress over the past 
few decades, culminating in this most recent bill in the House of 
Representatives, HR 5663. ORC is mindful that with the exception of a 
one-time increase in the civil penalty maximums in 1991, the 
Occupational Safety and Health (OSH) Act of 1970 has not been 
significantly amended in the nearly 40 years since its original 
enactment. As ORC observed in its White Paper issued in November 2008, 
entitled Breaking the Cycle: New Approaches to Establishing National 
Workplace Safety and Health Policy, ``the almost 40 year old Act has 
been remarkably durable in its breadth, adaptability and overall 
effectiveness as a framework for protecting workers.''
    On the other hand, ORC also noted in its White Paper that ``for the 
21st Century workplace, [the Act] has become in several significant 
ways an outdated model for protecting today's workers from occupational 
safety and health hazards.'' HR 5663, like its predecessors, would do 
little to modernize the basic framework of the OSH Act to meet the 
safety and health challenges of the 21st Century workplace and 
workforce. In addition, ideally, ORC would have liked to have seen 
Congress go beyond focusing primarily on the enforcement-related 
provisions of the Act and also seek to provide OSHA with additional 
incentives, tools and resources to assist the vast majority of 
employers that are earnestly interested in protecting their workers but 
that may lack the capacity and competencies to do so effectively.
    However, despite the limited focus and scope of HR 5663, ORC has 
concluded that with a few modifications suggested below, the proposed 
amendments to the OSH Act have the potential to afford improved 
protections to at least those workers facing the most challenging 
workplace conditions in situations where their employers may be 
resistant to providing the most essential protections and meeting even 
the most basic compliance obligations. There are, unfortunately, still 
too many employers that do not sufficiently appreciate the legal 
necessity, the moral obligation or the business benefits of assuring a 
safe and healthful workplace--for those businesses, strong enforcement 
and assurances of worker rights may be necessary to incentivize 
compliance.
Comments on Selected Provisions of Title VII
    ORC's has the following comments on specific provisions of Title 
VII:
    1. Section 701. Enhanced Protections From Retaliation. The current 
employee protections from retaliation contained in the OSH Act have not 
been updated since the passage of the OSH Act in 1970 and contain 
administrative impediments that limit their effective application. ORC 
understands the need to update these provisions to be consistent with 
improvements contained in more recent ``whistleblower'' statutes.
    The new provision, which would protect an employee from retaliation 
for, among other things, ``refusing to perform the employee's duties if 
the employee has a reasonable apprehension that performing such duties 
would result in serious injury to, or serious impairment of the health 
of, the employee or other employees,'' is a significant change from the 
current state of the law, which allows employees to refuse work when 
faced with an imminent danger of death or serious injury. While the new 
provision may certainly be appropriate in most instances, ORC notes 
that the provision's broader scope may also present the opportunity for 
potentially unwarranted claims. It is our hope that, as this section is 
implemented, oversight will be provided to ensure the suitable use of 
this protection.
    2. Section 702. Victims' Rights. In recent years, OSHA has 
gradually provided, through its administrative procedures, injured 
workers and family members of injured and deceased workers increasing 
access to compliance activities associated with the injury or fatality. 
This section of the bill would provide victims enhanced rights of 
participation in OSHA inspection and citation modification activities 
as well as proceedings before the Occupational Safety and Health Review 
Commission (Review Commission). ORC respects the appropriateness of a 
role for victims in these forums and for the most part, the bill 
appears to balance the desirability of involvement and input by the 
victims both with the legal and procedural rights of the actual parties 
to the proceedings and with the importance of not unduly delaying or 
otherwise interfering with the resolution of the matter. However, one 
new provision in the current bill--proposed section 9A(e)(2)--does 
cause some concern, namely that it may be construed to require the 
Review Commission to afford evidentiary status (``due consideration'') 
to ``information'' provided by a victim to the Review Commission, 
without the parties to the proceeding having the opportunity to provide 
appropriate rebuttal. It should be made clear that such a construction 
is not intended and that information provided by a victim may not be 
relied on as evidence.
    3. Section 703. Correction of Serious, Willful, or Repeated 
Violations Pending Contest and Procedures for a Stay. This provision 
raises the most concerns for ORC and its members. It would require the 
period set in a citation for the abatement of any violation alleged to 
be serious, willful or repeated to commence upon the receipt of the 
citation by the employer and would disallow the suspension of the time 
set for abatement, triggered under the current OSH Act by the filing of 
a notice of contest, until the final resolution of the contested 
violation. The bill would follow procedures similar to those applied 
under the Federal Mine Safety and Health Act and allow an employer 
cited for a serious, willful or repeated violation to file a motion for 
a stay of the abatement period with the Review Commission, which would 
review the stay motion on an expedited basis, applying criteria similar 
to those necessary to obtain preliminary injunctive relief in other 
legal proceedings. Specifically, the Review Commission would consider 
whether the employer has a substantial likelihood of success on the 
merits of the contested citation; whether the employer will suffer 
irreparable harm absent a stay; and whether a stay will adversely 
affect the health and safety of workers.
    ORC believes that at a bare minimum where an employer is contesting 
the appropriateness of the proposed date set for abatement or is 
denying the existence of any violation at all, the burden of getting a 
stay pending contest should be eased. Specifically, there is no reason 
to require a showing of ``irreparable harm'' to the employer, 
especially if employees are not being exposed to the alleged hazard 
through some alternative or interim action pending the resolution of 
the citation. Obtaining a stay in these circumstances should not entail 
the kind of high burden necessary to obtain preliminary injunctive 
relief.
    4. Section 705. Civil Penalties. ORC supports the proposed 
increases in civil penalty maximums, the civil penalty ``enhancements'' 
(except as discussed below) for willful and repeat violations resulting 
in the death of an employee, and the periodic inflation adjustment of 
the statutory penalty amounts. The proposed new civil penalty maximums, 
in effect, amount to a one-time cost of living ``catch-up'' over the 19 
years since the penalty amounts were last increased by Congress. It is 
important that civil penalties assessed for violations be a credible 
partial deterrent (although penalties alone are far from a sufficient 
incentive for compliance) to future violations.
    The reservation ORC has about the enhanced penalties for fatalities 
is the use of the phrase ``caused or contributed to'' the death of an 
employee in section 705(a)(1)(C). In the absence of a definition or 
clarification of the term ``contributed to,'' the agency may rely on 
meanings of the same term in other contexts, e.g., injury and illness 
recordkeeping, where even a slight contribution to an injury or illness 
by factors related to work would be deemed a sufficient basis to record 
the case. In order to justify an enhanced civil penalty of this 
magnitude, the violation should be required to have ``caused or 
directly and substantially contributed to'' the death of an employee.
    5. Section 706. Criminal Penalties. The existing limited criminal 
sanctions contained in the OSH Act have been seldom invoked and are 
nearly universally recognized as inadequate in more than one respect. 
It is entirely reasonable to regard a willful violation that causes the 
death of an employee as a felony with appropriate associated penalties. 
However, with respect to addition of the phrase ``contributed to'' as a 
basis for criminal prosecution, ORC has even greater concerns than 
those expressed above in the context of civil penalties. Once again, a 
direct and substantial ``contribution'' by the violation to the death 
(or serious bodily harm) of an employee should be required in order to 
justify criminal liability. We also believe that a clarification of the 
intention behind substituting the word ``knowingly'' in HR 5663 for 
``willfully'' in HR 2067, the Protecting America's Workers Act as 
originally introduced, is necessary. In the absence of an explanation 
of this proposed change, there is a great deal of uncertainty around 
whether the use of the word ``knowingly'' effectively lowers the 
standard of proof for the prosecutor or whether the two words are 
legally equivalent.
    Similarly, the explicit addition of ``any officer and director'' to 
the definition of ``employer'' for purposes of identifying potential 
targets for criminal prosecution, absent a clarification of intent, 
raises significant fears among business managers that they could be 
subject to prosecution for merely being somewhere in the ``chain of 
command'' or having some kind of safety and health role in the company 
but having no knowledge of, or responsibility for, an event that causes 
an employee death. Based primarily on case law developed under federal 
environmental statutes that have applied similar terms, ORC urges, at a 
minimum, report language that would make clear that the Committee 
intends to limit potential liability to corporate officials who had 
knowledge of the existence of the condition that caused the injury or 
fatality and knew or had reason to know that the condition could result 
in serious injury or death, had the authority and ability to correct, 
or cause the correction, of the condition, and knowingly failed to 
exercise his or her authority to take appropriate action to correct the 
condition.
    Finally, the proposed expansion of criminal liability to cases of 
knowing violations that cause or contribute to ``serious bodily harm'' 
to an employee raises important policy questions about the most 
effective use of already scarce OSHA resources--criminal investigations 
require substantial time and effort on the part of specially-trained 
OSHA compliance staff. However, ORC is pleased to see that the 
committee has reverted to a more limited definition of ``serious bodily 
harm'' than that contained in the first ``discussion draft'' released 
following the introduction of HR 2067.
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    [Additional submissions of Mr. Kline follow:]

              American Society of Safety Engineers,
                                   1800 East Oakton Street,
                                    Des Plaines, IL, July 12, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Chairman Miller: The American Society of Safety Engineers 
(ASSE) appreciates this opportunity to comment on your legislation, the 
Miner Safety and Health Act of 2010 (HR 5663). While we understand and 
support much of your intent to strengthen occupational safety and 
health protections for this nation's workers in very workplace, ASSE 
cannot support HR 5663 in its entirety or support the quick rush to a 
bill at this time. The bill is so wide-sweeping in attempting to move 
forward reforms to both the Federal Mine Safety and Health Act (Mine 
Act) and the Occupational Safety and Health Act (OSH Act) that we fear 
a careful analysis of the mining provisions in particular in the short 
time from its July 1 introduction to the scheduled July 13 hearing and 
possible markup of the bill does not serve the purpose of advancing 
occupational safety and health in the most thoughtful way possible.
    ASSE is particularly concerned that this rush to markup does not 
address a glaring failure of the OSH Act to provide more than 8 million 
public sector workers with the same minimal federal occupational safety 
and health protections that all other workers enjoy. To propose 
toughening the safety and health protections most workers already have 
while so many other Americans--all public servants, many of who serve 
to protect our welfare, ironically--are not protected at even current 
levels of protection is unfair to those public servants. Over the last 
several years, ASSE's members in Florida have worked with labor and 
business groups to advance protections for state, county and municipal 
workers with still more work needed to achieve that goal. So we know 
first-hand how difficult it would be to go from state to state to 
address this problem. However difficult a federal measure might be, the 
only reasonably workable fix is through an amendment to the OSH Act. 
The OSH Act will not be truly reformed until public sector workers 
receive the workplace protections they deserve.
    If this bill moves quickly forward as written, ASSE also fears that 
some very positive contributions it makes in OSH Act reform will be 
lost under the weight of opposition to Mine Act reforms that, in the 
view of our members, will make it difficult to achieve your goal of 
strengthening oversight of this nation's mines. While we urge you to 
consider more carefully the strategy of placing so much in one bill to 
be considered in such short a time, we do respect the commitment you 
have to occupational safety and health. In response to your bill, ASSE 
has developed the following comments based on the expertise and 
experience of our more than 32,000 member safety, health and 
environmental (SH&E) professionals who work with employers in every 
industry across the country and provide the leading expertise and 
experience employers rely on to protect their workers from workplace 
hazards. However these provisions move forward, we hope to work with 
you to make sure they can achieve the common goal we share in making 
sure that this nation's oversight of workplace safety and health is 
effective.
    The following section-by-section comments, beginning with the OSH 
Act reform provisions in HR 5663, also reflect our members' passion for 
the idea that whatever Congress or the Administration does to impact 
workplace safety and health must reflect their hard-won understanding 
from the job floor of how best to protect workers. We urge you to 
listen to them and work with them to make sure that your laudable goal 
of reforming the Mine Act and the OSH Act will succeed where it counts, 
in more workers returning home each day safe and healthy.
                            osh act reforms
Section 701--Enhanced Protections from Retaliation
    ASSE supports expanding federal OSH Act whistleblower protections 
to employees who report injuries, illnesses or unsafe working 
conditions on the job. Shielding workers from recrimination and 
retaliation for reporting injuries, illness or unsafe conditions, 
testifying before Congress or other bodies, refusing to violate the OSH 
Act or otherwise exercising their rights are necessary elements to 
ensuring worker participation and ownership of workplace safety and 
health. While we recognize that this system unfortunately can be abused 
for personal and workplace political issues, still, if a worker's job 
security and compensation are not adequately protected, those with 
legitimate concerns that an employer ignores will rarely be able or 
willing to risk taking needed steps to help correct risks to workplace 
safety.
Section 701(b) Prohibition of Retaliation
    ASSE supports protecting employees from workplace discrimination 
for refusing to perform a duty if the employee has a reasonable 
apprehension that performing the duty would result in serious injury or 
health impairment. A tenet of effective workplace safety and health is 
that every person in a workplace, from management to worker, must be 
committed to safety and health. Permitting workers who have a 
meaningful sense of a dangerous workplace risk to protect themselves or 
other workers is consistent with the training that our members provide 
workers and assistance they provide employers in workplaces every day.
Section 701(c) Prohibition of Retaliation Procedures
    Similarly, workplace safety and health is best served if federal 
whistleblower protections adequately shield those who in good faith are 
forced to address workplace hazards by reporting dangerous conditions 
or practices to outside authorities. For that reason, ASSE supports HR 
5663's proposed expansion of the statute of limitations from 30 to 180 
days for reporting discrimination resulting from protected activities 
concerning reporting injuries, illnesses or unsafe working conditions. 
This provision is comparable to the statutory period for safety 
whistleblower protection provided to commercial drivers under the 
Surface Transportation Assistance Act, which OSHA also enforces.
    ASSE also supports the provision that, if findings are not issued 
within 90 days of a complaint, the complainant may request a hearing. 
This private right of action is currently available under the Mine Act 
in whistleblower protection cases. Because complainants may have lost 
their jobs due to their protected activity, lengthy delays in 
concluding investigations and holding hearings can exemplify the 
saying, ``Justice delayed is justice denied.'' Our members fully 
understand the importance of these provisions. SH&E professionals 
themselves can face the kind of discrimination these provisions guard 
against for simply doing what they have a professional and ethical 
responsibility for doing
    Finally, ASSE appreciates the effort in this bill to establish a 
more reasonable process for determining the appropriateness of claims 
through the regulatory process by establishing an administrative 
appeals process. An appeals process should help limit the use of the 
federal judicial system, a concern we raised with previous versions of 
these provisions. In the end, however, ASSE cannot support provisions 
allowing complainants to seek review of an OSHA order with the U.S. 
Court of Appeals, which amounts to a private right of action for what 
Congress has determined should be a regulatory enforcement matter. The 
current system was established to avoid protracted and expensive 
litigation, which this provision would undermine. As we have said 
before, the whistleblower function at OSHA has suffered from a lack of 
adequate resources. Instead of opening the process to further 
litigation and requiring the Department of Labor to apply scarce 
resources to litigation, Congress should ensure that OSHA has the 
funding necessary to carry out this important function so claims can 
receive their due attention in a timely manner.
Section 702--Victims' rights
    The entire process of investigating and determining appropriate 
actions under the OSH Act needs to be sensitive to the impact and loss 
that a victim and victim's family has experienced, especially when 
there has been a fatality. Workers deserve to feel a level of common 
compassion from government and employers that the OSH Act should 
encourage. Not only is such an attitude the right thing to do, it is 
also the prudent thing when the process has the potential of becoming 
irrationally adversarial even when all parties are well-intended. This 
is particularly true for the provisions proposed here to facilitate 
more and better communications with victims and their families.
    Therefore, ASSE supports provisions that would permit a victim to 
meet with OSHA about the inspection or investigation before the 
decision whether or not to issue a citation is made; to receive at no 
cost copies of citations or related reports; and to be provided an 
explanation of rights of employees or their representative to 
participate in enforcement proceedings. We also support the inclusion 
in HR 5663 of a provision requiring each OSHA area office to have a 
family liaison. Having someone especially capable and, we suggest, 
trained in dealing with victims' families is a positive step forward.
    ASSE is concerned, however, that overlooked in this well meaning 
effort to increase victims' ability to state grievances in the process 
is the capability of the process to move ahead with proper attention to 
the facts of each case and the ability of all those involved to do 
their work in helping determine the appropriate outcome of 
investigations without inappropriate disruption. A victim's voice must 
be heard in this process, but a victim's personal perceptions at a 
difficult time, however legitimate, are not always consistent with the 
process of negotiating often highly technical legal issues by the 
parties involved. That is why ASSE continues to urge that an amendment 
is needed to limit the definition of ``victim'' to ``an immediate 
family member'' in subsection (g). The common definition of family 
could mean many people who do not have a close interest in the 
proceeding.
    ASSE also is concerned that, while well meaning, the provisions 
aimed at giving a victim a voice in the legal process as written in 
this bill have gone too far. We do support giving a victim the 
opportunity to appear and make a statement before the Occupational 
Safety and Health Review Commission (OSHRC), which is an environment 
structured enough to enable all parties to voice their interests in a 
productive way. Commission members, too, are the most appropriate 
audience for victims. It is with commissioners that victims' positions 
can have the most impact on the ultimate outcome in a matter. But we 
cannot support requiring that the victim, on request, be given an 
opportunity to appear and make a statement before the parties 
conducting settlement negotiations. As we have said in the past, the 
unintended consequence of this provision could be OSHA's entanglement 
in more drawn-out actions and a significant increase in OSHRC's case 
load. Since HR 5663 better serves the victim by providing an 
opportunity to appear before OSHRC directly, we urge you to delete 
subsection (c).
Section 703--Correction of Serious, Willful, or Repeated Violations 
        Pending Context and Procedures for a Stay
    ASSE greatly appreciates the effort to address concerns we had with 
similar provisions in the PAW Act that employers were not being given 
an opportunity to protect their interests in the proposed process, 
especially when a serious citation is often open to the subjective 
opinion of an inspector. That concern has been met with provisions in 
this bill to allow an employer to file with OSHRC a motion to stay a 
period for the correction of a violation designated as serious, 
willful, or repeated. That change should provide a fair balance of the 
interests while still meeting the goal of not allowing employers to 
avoid their responsibility to correct violations through legal process. 
We are pleased to support this provision.
Sections 705-706 Civil and Criminal Penalties
    ASSE has always supported appropriate and fair enforcement OSH Act 
violations and does not oppose the increased levels of civil and 
criminal penalties proposed in this legislation if, as we state below, 
certain language further explaining provisions, is included in report 
language to the bill. For most of our members' employers, their 
commitment to workplace safety and health is driven by both moral and 
business commitments that these increased penalties will not change. 
For too many other employers not similarly committed, the current 
penalties under the OSH Act are not high enough to affect their 
behavior, in our members' experience. ASSE has become increasingly 
concerned that, because of the much higher penalties the Environmental 
Protection Agency is able to impose, the commitment of some employers 
to worker safety and health may be taking a back seat to concern over 
avoiding environmental penalties. Arguably, this focus on environmental 
issues may be partially responsible for the current rush to voluntary 
sustainability among industry leaders. Appropriate levels of penalties, 
we believe, can similarly bring increased attention to worker safety 
and health issues and help lead to greater voluntary attention to the 
sustainability of this nation's workforce. Workers deserve no less.
    ASSE remains concerned, however, that this effort to increase 
enforcement capability comes at the same time the current 
Administration is moving away from what our members see as the most 
successful cooperative effort to work with employers in the Voluntary 
Protection Program. While stronger enforcement tools are needed, so too 
is an OSHA fully capable of working with employers to help ensure that 
employers are fully committed to safe and healthy workplaces and not 
simply trying to avoid penalties for meeting minimal OSHA standards. We 
should be able to expect better than minimal adherence from most of 
this nation's employers. We urge you to join us in not only supporting 
appropriate OSHA penalties but in also helping ensure that VPP can 
continue even as this effort moves forward.
    We note that ASSE's conditional support for the increased penalties 
proposed here is based on the fact that HR 5663 addresses key concerns 
we raised with similar provisions contained in the Protecting America's 
Workers Act (HR 2067). ASSE appreciates the effort to meet its 
concerns. As we more specifically say below, our goal was to better 
define how increased penalties are to be applied and to help ensure 
that the target of higher penalties are employers who do not take 
responsibility for a consistent culture of safety in their 
organizations. Our members can find themselves the lone voice in an 
organization arguing to upper management for greater resources or 
commitment to safety and health. If failures occur before they succeed, 
they should not have to answer for the failure of others to address 
known risks. ASSE does not seek protections for an SH&E professional's 
failure to fulfill professional responsibilities, but worker safety and 
health is best served by putting those responsible for an 
organization's commitment to safety and health on notice of penalties 
that can result from shirking that responsibility. While the bill does 
not go as far as we had wanted in encouraging responsibility for an 
organization's safety culture, ASSE is pleased that HR 5663 will help 
see that most SH&E professionals are not unfairly left to take 
responsibility for others in an organization who fail to make needed 
decisions to protect workers.
    ``Any officer or director''--More specifically, for purposes of 
finding a responsible party under the criminal provisions, provisions 
in HR 5663 defining an ``employer'' as ``any officer or director'' is a 
significant step forward in the right direction in encouraging 
responsibility for an organization's safety culture. However, it does 
not go far enough in making sure those responsible for an 
organization's commitment to safety and health cannot escape that 
responsibility. Better language to assign the kind of responsibility 
that can make a difference in a workplace culture requires the phrase 
to be ``any responsible officer or director.'' Our members who work in 
organizations report a vast difference between officers and directors 
who have the power to make a difference in an organization and those 
who do not. Aiming these penalties at those who do not have such 
authority does not serve the purpose of making significant change in 
employers' perception of OSHA penalties. For this reason, we urge you 
to change this language to ``any responsible officer or director.''
    Knowing--A long-standing concern of ASSE's members is the lack of 
specific definition for ``willful'' in determining criminal 
responsibility under the OSH Act. In practice, ``willful'' is 
inconsistently applied. Without a firm definition, OSHA enforcement 
personnel in the field and the regional offices are left to determine 
subjectively the level of a violation, leaving employers open to what 
can seem like selective enforcement of violations. Our members are 
concerned that too many resources, too many arguments, too much 
confusion results from what is, in practice, a term inconsistently 
applied to violations. Most importantly, ``willful'' is far too vague a 
term to be used as an appropriate benchmark for criminal prosecution.
    As we have said before, ASSE would like to be able to support the 
suggested change of ``willful'' to ``knowing'' in the OSH Act. The use 
of ``knowing'' is consistent with criminal prosecutions in general and, 
more specifically, with various environmental statutes [for example, 
the Clean Water Act, 33 USC 1319(c)(3)(B)], and its use infers the 
``mens rea'' needed to show criminal intent, which a judge or jury will 
ultimately determine whether that has been proven beyond a reasonable 
doubt. However, we still are unable to support the use of ``knowing'' 
without legislative or report language clarifying that, for the purpose 
of the OSH Act's criminal provisions, ``knowing'' reflects both a 
knowledge and awareness that the hazard, actions or conditions are 
likely to place another person in imminent danger of death or serious 
bodily injury, knowledge and awareness that the hazard, actions, or 
conditions constitute a violation of a mandatory safety or health 
standard, and that the person had the ability to take action to address 
the hazard or condition and did not. With that explanation on the 
record, we could support this provision. Without it, the use of 
``knowing'' remains too vague a term to help drive a significant change 
in the way organizations view worker safety and health, which should be 
the unwavering goal of this bill.
                           mining provisions
    Among ASSE's members are hundreds of safety and health 
professionals who work at mines and are members of the Society's Mining 
Practice Specialty. The following comments on some key provisions of 
this bill are based on their leading experience and expertise in 
protecting workers in this nation's mines.
Section 101--NIOSH/Panel Accident Investigations
    ASSE supports the provision that would create independent panels, 
headed by NIOSH, to investigate accidents involving the deaths of three 
or more individuals, or other critical accidents as warranted. This is 
consistent with the role Congress intended for NIOSH and may lead to 
better investigations that are not enforcement-driven but are conducted 
solely to determine what occurred and what needs to be done in the 
future from a mine safety and health perspective to prevent a 
recurrence. Because it is unclear how often NIOSH would be called upon 
to engage in such activities, as they are now doing in the Massey Big 
Branch investigation, it is imperative that sufficient resources be 
allocated for NIOSH so that assisting MSHA in investigating key 
incidents will not detract from the already underfunded 
responsibilities that NIOSH laudably fulfills.
Section 102--Subpoena Power
    This legislation would expand MSHA's existing subpoena power beyond 
its current capabilities, where MSHA must convene a public hearing to 
compel testimony and the production of documents prior to the issuance 
of any citations or commencement of litigation. Although OSHA has 
similar broad subpoena power, OSHA is not a strict liability statute 
and does not have warrantless search authority. OSHA also does not have 
the power already set forth in Section 108(a)(1) (E) of the Mine Act 
that permits MSHA to obtain injunctions to compel production of 
documents necessary to carry out its activities under the Act.
    From a safety and health management perspective, ASSE is concerned 
that these provisions could lead to MSHA's misuse of such broad 
subpoena power during routine inspections by engaging in ``fishing 
expeditions'' for the purpose of obtaining documents such as safety/
health audits, root cause analytical documents, and ``near miss'' 
accident reports. Any of these self-evaluative documents may record the 
existence of past hazardous conditions that have subsequently been 
addressed. However, because there is no statute of limitations for the 
issuance of MSHA citations, and in light of strict liability 
prosecution, such audit documents or incident reports could trigger 
citations regardless of whether a condition had already been adequately 
addressed and abated prior to its discovery by MSHA.
    Such prosecutions would definitely have a chilling effect on 
companies' practices of self-auditing or using independent safety and 
health professionals to proactively audit the facilities. Also impeded 
would be the current practice of documenting ``near miss'' incidents so 
that procedures can be reevaluated as needed and additional training on 
work practices provided to avoid future occurrences. This result would 
discourage these common means our members use to help mines improve 
safety and health.
    If MSHA is able to compel production of such documents through this 
expanded subpoena power, HR 5663 should also require MSHA to adopt a 
``safe harbor'' policy--as OSHA has done--wherein the results of audits 
and other self-evaluative documents will not be used to prosecute the 
company or its management as long as identified hazards that reflect 
non-compliant conditions were corrected in a timely manner prior to the 
agency's inspection of the facility.
Section 201--Significant and Substantial Violations
    ASSE cannot support making all violations presumptively significant 
and substantial as HR 5663 would require. This provision would shift 
improperly the burden of proof away from MSHA to forcing the mine 
operator to prove the non-existence of any degree of hazard, which is 
an almost insurmountable burden. It also detracts attention from truly 
serious hazards and, by doing so, makes it difficult for companies to 
learn from inspections about what are the significant issues that must 
receive priority during their daily workplace examinations. Just as 
OSHA distinguishes between ``serious'' (reasonable probability that a 
reasonable serious injury could occur) and ``other than serious'' 
violations (both recordkeeping infractions and less serious hazards 
that are unlikely to cause injury, or where there is lack of worker 
exposure), so too should MSHA retain such distinctions.
    Moreover, given the use of significant and substantial citations in 
the expanded Pattern of Violations (POV) criteria proposed in Section 
202 of the bill, making virtually every citation a trigger for POV will 
certainly encourage even more citation contests and diffuse the 
importance of a significant and substantial classification if even 
minor hazards are encompassed within this classification.
Sections 301-305--Civil and Criminal Penalties
    ASSE's comments concerning increased criminal penalties for 
``knowing'' violations of the OSH Act's standards equally apply to 
similar violations under the Mine Act, as amended. We support 
increasing criminal penalties from misdemeanors to felonies. However, 
we have observed that while the OSHA-related provisions are limited to 
prosecuting knowing violations that are related to fatal or serious 
bodily injuries, there are no such limitations under the Mine Act 
provisions. We urge Congress to apply parity and make it clear that 
criminal prosecution for knowing violations of MSHA standards should 
only occur if serious injuries or worse are involved, or individuals 
have issued false statements or falsified documents in the course of an 
inspection or investigation.
    As noted elsewhere, we also encourage Congress to make it clearer 
what constitutes ``knowing'' violations. Further, this should be more 
precise than simply being aware of a condition that MSHA believes to be 
a violation since reasonable persons can differ as to what constitutes 
a hazard or risk when dealing with the agency's subjective standards.
    Finally, this legislation would criminalize retaliation against 
``whistleblowers'' and would make such actions punishable by up to 10 
years imprisonment, which is a harsher penalty than for knowing 
violations of mandatory standards. This seems to be a punitive rather 
than a deterrent measure and is the only example we know where human 
resources-related actions such as termination, demotion, or transfer 
could result in incarceration of management if the individual suffering 
the adverse action had also engaged in protected activity under Section 
105(c) of the Mine Act. This provision should be reconsidered, in terms 
of its proportionality to the offense.
    With respect to increasing civil penalties, Congress increased MSHA 
maximum penalties to $220,000 for ``flagrant'' violations in the 2006 
MINER Act. MSHA also implemented an across-the-board increase in 2007, 
in part to implement the ``flagrant'' penalties and also the mandatory 
minimum penalties for Section 104(d) violations that were set in the 
2006 legislation. The result of the 2007 increases was an explosion of 
contested cases, resulting in the current 17,000-case backlog at the 
Federal Mine Safety & Health Review Commission (FMSHRC). We are 
concerned that a new increase, effectively doubling the maximum penalty 
(from $70,000 to $150,000) for non-flagrant significant and substantial 
citations, will have the effect of raising all penalties 
proportionately. This will increase the contest rate yet again, 
threatening the viability of the FMSHRC system and depriving both the 
mining community and MSHA of timely due process in resolving disputes. 
It needs to be noted that immediate abatement is already required for 
contested citations, unless deadlines are briefly extended to allow for 
expedited proceedings at the discretion of the FMSHRC and MSHA. So, 
contests do not, in our view, directly impact safety or health 
conditions at the mine. But dramatically increasing the delays that 
already exist may be detrimental to both sides' ability to litigate 
cases as witnesses' memories fade, individuals retire, and evidence 
becomes lost over time.
    Although Congress has included a ``pre-judgment interest'' 
provision in this legislation as a deterrent to contesting citations, 
we doubt that this will be effective in reducing contests. The stakes 
will be too high for mine operators to accept citations they dispute 
when penalties are doubled and in light of the expanded exposure to 
Pattern of Violations findings resulting from increased serious and 
significant citations, which would occur if this bill becomes law 
contemporaneously with changing the definition of S&S to make all 
violations presumptively fall into this category.
    Congress must also clarify how the pre-judgment interest will be 
applied in cases that settle before trial. Unclear is whether interest 
can be waived in the interest of settlement. Also unclear is the 
situation where citations are modified in terms of negligence or 
gravity, which would change the basic penalty under the criteria in 30 
CFR 100.3, but are not vacated entirely. Would interest be waived where 
the operator's contest had merit in terms of how a citation was 
classified, even if a violation is upheld in some form? These issues 
must be addressed before pre-judgment interest is implemented 
legislatively. ASSE also believes that the FMSHRC's de novo penalty 
powers should remain intact, and the FMSHRC should not be bound by the 
Part 100.3 criteria but should be able to increase or decrease 
penalties appropriate to the evidence presented and the FMSHRC's 
findings on a case-by-case basis.
Section 501-507--Rulemaking Provisions
    This legislation directs MSHA to engage in rulemaking on a number 
of critical issues to mine safety in underground coal, and ASSE 
supports in general these initiatives. However, we note that MSHA 
already has an ambitious rulemaking agenda that includes such things as 
strengthening of the crystalline silica standard for all mines and the 
development of an injury and illness prevention program (I2P2) 
standard. In our members' view, an I2P2 standard should be a priority 
because it will have the most significant and positive impact on 
improving a company's safety culture and ensuring adequate risk 
assessment, hazard control, employee training and empowerment, and 
evaluation of the effectiveness of safety programs and procedures. The 
I2P2 initiative should not be put on the back burner as a result of 
resource choices that would be necessary if the new rulemaking required 
by HR 5663 are put on a fast-track for MSHA's standards office. 
Therefore, if Congress believes that it is necessary to mandate the new 
rulemaking initiatives, adequate resources should be provided to MSHA's 
standards office so that the I2P2 rulemaking can also proceed in a 
timely manner.
    ASSE is somewhat baffled by the intention of Section 507, 
concerning ``certification'' of personnel. If personnel are already 
required to be certified, what is the benefit to charging fees for this 
certification in terms of safety and health? Moreover, we hesitate to 
support making activities conducted by one whose certification may have 
lapsed automatically ``flagrant'' [Section 104(d)] violations, as this 
could occur through oversight rather than through intentional 
misconduct. Congress should also more clearly delineate which 
certifications are within the scope of this provision, what the fees 
would be, and how often recertification would be required, as there are 
currently no such specifications to our knowledge in the standards 
under the Mine Act.
Conclusion
    Again, while ASSE believes a better approach would be to give 
adequate separate attention to Mine Act and OSH Act safety and health 
reforms, we respect your intention to bring about greater commitment 
among employers to worker safety and health and look forward to an 
opportunity to work with you and the Committee to make sure any reforms 
that are pursued are able to accomplish their intended goal.
            Sincerely,
                                Darryl C. Hill, Ph.D., CSP,
                                                         President.
                                 ______
                                 
                                                     July 13, 2010.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
Committee on Education and Labor, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Chairman Miller and Ranking Member Kline: On behalf of 
Associated Builders and Contractors (ABC), a national association with 
77 chapters representing 25,000 merit shop construction and 
construction--related firms with 2 million employees, we appreciate the 
opportunity to submit this statement as part of today's Full Committee 
hearing on H.R. 5663, Miner Safety and Health Act of 2010. ABC and its 
members are ardent advocates of workplace safety, which is demonstrated 
through our proven record of cooperation and collaboration with the 
Occupational Safety and Health Administration (OSHA) and dedication to 
workplace safety education and training. ABC, however, strongly opposes 
the provisions (Title VII) that would amend the Occupational Safety and 
Health Act (OSH Act) that are included within H.R. 5663.
    Over the years, ABC and its 77 chapters nationwide have had the 
privilege of building excellent working relationships with OSHA's 
national, regional and area offices. OSHA staff members have addressed 
ABC members at our annual Construction Education Conference and worked 
with our chapters to conduct safety training courses throughout the 
country. Communication between both OSHA and ABC members has increased 
understanding of workplace safety, which has contributed to the 
decrease in the number of fatalities and injuries in the construction 
industry since 1994.
    The approach taken in H.R. 5663 would strain communications and 
relations between ABC, its members and OSHA, however, by unnecessarily 
increasing the adversarial nature of the relationship between OSHA and 
employers. Specifically, H.R. 5663 changes the OSH Act's penalty scheme 
by altering the mens rea requirements for criminal liability from 
``willful'' to ``knowing'' and the broadening the definition of 
employers to ``any company officer or director.'' The bill provides no 
definition of ``knowing,'' nor does it provide any limitation or 
guidance on which ``officers or directors'' could face criminal 
charges. At the same time, H.R. 5663 would dramatically increases civil 
and criminal monetary penalties.
    These proposed changes will increase litigation, discourage 
settlements, and create disincentives for cooperation between 
employers, associations and OSHA. This will stretch and misdirect the 
resources of OSHA and other federal agencies and impose substantial 
costs on businesses at a time they can afford it least, all while doing 
nothing to prevent workplace accidents and injuries.
    ABC also opposes the provision requiring immediate abatement and 
the limits the provision imposes on an employer's ability to challenge 
a citation. This denies employers due process rights, and OSHA already 
has the authority to seek an injunction if a hazard poses an imminent 
threat.
    Lastly, H.R. 5663 contains neither support nor assistance for 
employers to help them implement better safety programs or understand 
their obligations. Such compliance assistance is particularly necessary 
to help small businesses, who often cannot afford to maintain safety 
personnel or hire consultants to guide them through complicated OSHA 
regulations.
    The construction industry is already strained with job loss, with 
unemployment over 20 percent, and adding more bureaucratic layers to an 
already burdened industry is not conducive to expedient economic 
recovery. Jobsite safety and health is a top priority for ABC, whose 
objective is to have ``zero accident'' worksites.
    In order to work towards our shared goals of healthy and safe 
workplaces, OSHA must be a resource for employers as well as an 
enforcement agency. However, we strongly believe that H.R. 5663 as 
introduced, will not improve safety but will instead create greater 
cost, litigation and hamper job creation.
            Sincerely,
                        Brewster B. Bevis, Senior Director,
          Legislative Affairs, Associated Builders and Contractors.
                                 ______
                                 
                                                     July 13, 2010.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
Committee on Education and Labor, 2181 Rayburn House Office Building, 
        Washington, DC.
    Dear Chairman Miller and Ranking Member Kline: I am writing on 
behalf of the 2,700 contractor members of the Independent Electrical 
Contractors (IEC), whose concern for the safety of their employees is 
second to none. It is unfortunate that I have to write in opposition to 
H.R. 5663, The Miner Safety and Health Act of 2010, which will not 
improve workplace safety but serve merely as a punitive tool that 
closes the proverbial barn door after the horse has already left. This 
legislation will serve to bring increased business costs and litigation 
to an industry that is already facing more than 20% unemployment, while 
providing no benefits to the hard working men and women in the 
electrical field.
    Prior to addressing IEC's concerns with H.R. 5663, I feel compelled 
to make clear to the Committee that IEC members are committed to the 
health and safety of their employees and the well-being of their 
electrical contracting businesses and customers. For that reason, IEC 
has been, and continues to be, an active participant with the 
Occupational Safety and Health Administration (OSHA) and other 
organizations in a continuing effort to promote the safe products, 
procedures, and work practices that govern our industry.
    OSHA's cooperative programs, such as the IEC/OSHA Alliance, serve 
as a valuable conduit for ensuring that the busy contractor is kept up 
to speed on the latest regulations and workplace practices. As part of 
IEC's agreement with OSHA, IEC commits to educating its members about 
OSHA regulations, as well as, relaying the best industry practices 
promoted by OSHA. An excellent example of this partnership is IEC's 
Jobsite Safety Handbook, which was produced in cooperation with OSHA, 
and provides contractors with a pocket-sized, jobsite safety guide, 
written in English and Spanish, for their supervisors and employees.
    Cooperative efforts between the government and the private sector, 
including the IEC/OSHA Alliance, are key reasons why the injury rate in 
our industry has been in a consistent and steady decline. IEC members 
believe that one injury is too many, but remain confident in consistent 
improvements in this field, and committed to ensuring that jobsite 
injuries and fatalities continue their downward trend.
    Specifically regarding Title VII of H.R. 5663, IEC is concerned 
that the legislation increases penalties and gives OSHA inspectors more 
authority over the jobsite without doing anything to actually prevent 
accidents from taking place.
    The increased criminal penalties are vague, as there is no clear 
definition of a ``knowing'' violation, nor is there any guidance or 
limitation on the ``officers and directors'' who could face criminal 
charges. The lack of clarity that accompanies this significant 
expansion of criminal liability will undoubtedly discourage settlements 
and instead increase litigation.
    Further, H.R. 5663 will give OSHA inspectors, who may not be 
experts in the construction industry generally or the electrical field 
specifically, the ability to shut down a jobsite until an employer 
makes their recommended changes. Along with denying the contractor 
their right to appeal for a review of the inspectors' decision, this 
new authority could have a substantially negative impact on a small 
business owner's ability to be competitive. When an inspector, who has 
no training or background in the construction industry, mistakenly 
orders the abatement of a jobsite, even for a few hours, they will be 
threatening the economic livelihood of that contractor and every 
employee on that site, including those who work for other employers on 
related jobs.
    Again, I would like to express our opposition to H.R. 5663 with the 
clear statement that IEC and its contractor members strongly support 
improvements to workplace safety, and we remain hopeful that 
cooperative relationships, such as the IEC/OSHA Alliance, can continue 
to contribute to a reduction in workplace injury rates.
            Thank you for your time and consideration.
                               Brian Worth, Vice President,
                                     Government and Public Affairs.
                                 ______
                                 

 Prepared Statement of the National Stone, Sand and Gravel Association

    Mr. Chairman and Members of the Committee: This testimony for the 
hearing on ``H.R. 5663, Miner Safety and Health Act of 2010'' is 
offered on behalf of the National Stone, Sand and Gravel Association 
(NSSGA).
    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% of the crushed stone and 75% of the sand and gravel 
consumed annually in the United States. Almost every congressional 
district is home to a crushed stone, sand or gravel operation. 
Proximity to market is critical due to high transportation costs thus 
70% of our nation's counties include an aggregates operation.
    Aggregates are ubiquitous and essential to the built environment. 
Currently, the construction industry is suffering the highest 
unemployment level of any industry sector--21.1%--more than double the 
national average. According to the U.S. Geological Survey, an estimated 
317 million metric tons (Mt) of total construction aggregates were 
produced and sold in the United States in the first quarter of 2010, a 
decrease of 11% compared with that of the same period of 2009. The 
estimated annual output of aggregates in 2009 was 1.92 billion metric 
tons (Gt), a 23% decrease compared with that of 2008. Companies in our 
industry have had layoffs for the first time in their history. Although 
the Reinvestment and Recovery Act has helped to keep the aggregates 
industry from falling into a deeper recession, if the stimulus funding 
runs out without an extension of the surface transportation law (the 
current extension of transportation law expires Dec. 31, 2010), more 
job losses unfortunately cannot be prevented unless home, office 
building and commercial construction soar by that time.
    We believe that introduction of H.R. 5663, ``Miner Safety and 
Health Act of 2010'' misses an opportunity for meaningful, bipartisan 
mine safety reform. Instead, H.R. 5663 proposes overly broad statutory 
changes that will adversely affect all mining, and particularly the 
aggregates production industry. We would submit that the bill's focus 
should be on requiring recalcitrant mine operators to bring their 
operations into compliance with current safety and health laws and 
practices.
    This bill includes new increases in penalties just four years after 
passage of the MINER Act in 2006. Since 2006, penalty assessments for 
aggregates operators have more than doubled to $17.4 million in 2009. 
Also, the bill establishes two new funds. The dollars required for 
these funds are dollars that will not be spent on hiring workers, and 
making needed investments in safety and health. In addition, the bill 
lacks provisions for compliance assistance, calls for several 
rulemakings and includes an unprecedented increase in the authority of 
the Secretary of Labor. We believe it is premature to grant more 
authority to a regulatory regime that President Obama recently said is 
deserving of more review before conclusion of the studies into the 
cause of the West Virginia coal mine disaster.
    NSSGA and its members continue to be committed to providing the 
safest and healthiest work environments possible. This commitment is 
demonstrated by NSSGA's work with the U.S. Mine Safety and Health 
Administration (MSHA), primarily through the MSHA-NSSGA Alliance for 
education and training. The agreement, into which MSHA entered, is said 
to be the most productive such relationship MSHA has with industry. 
Through the alliance, NSSGA has worked collaboratively to perform 
analysis on safety data, develop ``best practices'' materials, and 
communicate to members the importance of safety and health.
    This commitment has paid off. In 2009, aggregates operators 
achieved the lowest total injury incidence rate on record: just 2.46 
injuries per 200,000 hours worked. It is the ninth consecutive year in 
which aggregates operators reduced their injury rate from the previous 
year. Also, through sustained management's emphasis on safety and 
health, employee training and education, and other programs, we have 
reduced the number of aggregates operator fatalities to seven, the 
lowest number ever. While we are proud of this improvement, we will not 
rest until we have reduced the number of fatalities to zero.
    NSSGA and its members have long recognized the critical importance 
of worker safety and health and historically have devoted an enormous 
amount of effort and resources to ensuring the wellbeing of our 
employees. This unequivocal dedication to safety and MSHA compliance 
was demonstrated when the NSSGA board of directors authorized a 
company-by-company Safety Pledge campaign to cut the aggregates 
industry's national incidence rate in half. There are more than 10,400 
pits and quarries in this industry, both small and large. They have 
achieved unprecedented levels of safety, and under no circumstances do 
they pose the hazards of underground coal mines.
    While not intending to be in any way pejorative towards coal an 
essential element of the nation's energy mix, we believe that it is 
critical to point out distinct differences in the risks posed by 
aggregates operations from those posed in coal mining. For instance, 
while more than 40% of all coal mines are underground, underground 
aggregates (stone) mines constitute slightly less than one percent of 
all aggregate mines. Underground stone mines are cavernous and contain 
no methane or other flammable gases. Nor is stone dust combustible. 
Full-sized off-road equipment from dump trucks to front-end loaders is 
able to drive into underground stone mines; ventilation issues are not 
comparable to underground coal or other tunneled mines. Also, accidents 
involving the death of more than one aggregates worker at a time are 
not characteristic of our industry. They are so rare the last time 
there was a double fatality accident in the aggregates industry was 
more than a dozen years ago. According to MSHA's online records, the 
last time there was an aggregates disaster--classified by MSHA as an 
accident causing five or more fatalities--was almost 70 years ago, in 
1942. To help illustrate these and other substantial distinctions in 
mine structure, mined materials and operational methodologies, we 
invite you and your staff to tour an underground stone mine.
    We applaud the Committee's exploration of issues tied to safety in 
the nation's mines; however, we are concerned with a number of 
provisions of H.R. 5663. Fundamentally, we believe the bill misses the 
opportunity to improve the regulation and enforcement of mine safety. 
This bill seems to have been spawned exclusively by the coal disaster 
at Upper Big Branch. Yet, the safety issues confronting the aggregates 
sector are fundamentally different from those of the coal sector.
    For instance, expansion of the ``significant and substantial,'' or 
``S&S'' category, to apply in cases in which there is a reasonable 
possibility that such violation could result in any injury or illness, 
no matter how minor, is inappropriate. It unnecessarily broadens this 
important classification and eliminates the current requirement that an 
S&S violation be of a ``reasonably serious nature.'' If this were to be 
enacted, most violations would satisfy the heightened designation of 
``S&S.'' An on-going concern of ours has been that we believe that S&S 
is very inconsistently applied, and we fear a broadening of this 
powerful provision.
    Further, we think there would be an incentive to ever safer 
behavior and attentiveness as we get to lower and lower incidence rates 
if a provision could be added to the law for a ``de minims'' violation. 
An alternate solution would be to provide inspectors the discretion to 
issue a ``warning'' so that something can be abated at a timeframe 
appropriate without resulting in a citation. We believe the law has 
been lacking in this discretion and the ability to downgrade a 
violation is a must to encourage and focus inspectors, as well as 
workforces and management to concentrate on compliance, prevention and 
elimination of issues based on level of risk.
    The process of making violation of any requirement of the Act or 
regulations--no matter how minor--a felony, and reducing the threshold 
for criminal liability from ``willful'' to ``knowing,'' would be 
counter-productive. This provision would criminalize the management of 
a mine, especially mine personnel who first encounter and assess 
particular conditions or practices. It would make even minor 
housekeeping and paperwork violations criminal felonies. We contend 
that, at the least, a felony should require that the defendant have 
knowledge that his actions exposed a miner to a reasonable risk of 
serious injury or illness or death.
    Expansion of section 110(c) provisions dealing with personal 
liability of any officers, directors or agents of the company is overly 
broad. It would extend liability not only to violations authorized or 
carried out by officers but also to ``any policy or practice that 
contributed to such violation,'' without any further definition of the 
meaning of this phrase. This provision apparently would criminalize 
entirely legal policies that might be deemed to have ``contributed'' to 
a violation.
    Increases in maximum criminal and civil penalties are unwarranted 
for a sector that has continued to reduce injury and illness rates that 
have been declining for ten years (and six before passage of the MINER 
Act.) There is no evidence that current penalties--when actually 
imposed and collected--are insufficient to deter and punish improper 
behavior.
    The overhaul of the Pattern of Violations (POV) provisions is 
overly broad and will actually result in perverse consequences that 
will harm aggregates without improving safety. If a mine is placed on 
POV status, the entire mine (not just the portion with safety issues) 
would be closed down until it can comply with an MSHA remediation 
order. Penalties and inspections are doubled while a mine is on POV 
status. The legislation would allow MSHA to impose rules that base a 
finding of a POV on an unspecified combination of violations, orders, 
accidents or injuries, without identifying the degree of risk of injury 
or illness that should lead to such status. While the current POV 
program needs revision, this represents regulatory over-reach and will 
lead to unnecessary mine closures. At the very least, pattern status 
should be limited to mines where a clear pattern of violations, orders, 
or accidents indicates a significant risk to miners of serious injury 
or illness or death. The consequences of pattern status are so severe 
that they should not be imposed due to a ``pattern'' of minor 
violations that do not risk significant harm.
    NSSGA could support a well-defined system through which a sustained 
pattern of violations representing genuine risk could lead to a mine 
closure. But, we would not support the granting of authority to MSHA to 
shut down a mine without third-party review.
    Increases in penalties for retaliation against whistleblowers 
should be refined. The Mine Act currently prohibits retaliation against 
whistleblowers, and provides for compensation of miners when sections 
of the mine are closed for safety reasons. While we support a 
reasonable extension in the period of such compensation, it is 
unreasonable to require compensation for an indefinite period, 
especially if there are no means of recouping those costs in the event 
that there's a vacation of the citation that will have led to the 
closure.
    Expansion of subpoena authority to ``any functions under this Act'' 
is too open-ended. As written, there are no criteria or limitations for 
this use of subpoena power. NSSGA could support closure of a possible 
loophole, but does not support a blanket, vague extension.
    Making advance notice of inspections a federal felony is unwise. It 
is unclear what constitutes advance notice. We support enforcement 
action against anyone who attempts to subvert mine inspections. 
However, the definition of what constitutes ``advance notice'' must be 
thoughtfully defined. Confidential communication is a primary method by 
which miners protect themselves, and keeping any information completely 
confidential in the close confines of a mine or mine site is a 
challenge. For instance, it is commonplace to inform miners when 
visitors are on-site, and it may be necessary to summon certain 
managers and employees to meet with the inspectors as they arrive. Any 
number of other actions could be incorrectly interpreted as subversive; 
thus, a much improved definition is necessary to prevent well-intended 
communication among miners from being construed as inappropriate.
    Limitation on use of the same attorneys by operators and operator 
company employees for defense against alleged violations is ill-
advised. This provision injects MSHA into the attorney-client 
relationship, and is unnecessary because bar standards already prohibit 
attorneys from representing multiple clients with conflicts of 
interest, unless there is mutual consent of all parties.
    Requirement that operators include independent contractors in 
injury and illness reports is not appropriate. The Mine Act currently 
gives production operators and independent contractors equal status and 
responsibilities under the law. Yet, this requirement constitutes a 
substantial challenge administratively, as the HIPAA Act prohibits 
operators from obtaining the required health information and accident 
details on employees of independent contractors.
    If the Act is amended with such a broadening of enforcement powers, 
it may actually make the problems with the underlying statute worse, 
which we believe should focus on areas of highest risk first (save 
lives), then prevent injury or illness, and finally to assure legal 
requirements are being met. The potential for overreach, regulatory or 
enforcement misjudgment, reduction of compliance efforts on priority 
areas of highest risk and instead a very scattered focus on any and all 
issues from a broken mirror to an uncovered trashcan could result. This 
would lessen, not improve, our culture of safety.
    We appreciate the opportunity to submit this statement for the 
record of the hearing on H.R. 5663, the Miner Safety and Health Act of 
2010.
                                 ______
                                 
    [Whereupon, at 6:20 p.m., the committee was adjourned.]


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