[Senate Hearing 111-812]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-812
 
         INVESTING IN MINE SAFETY: PREVENTING ANOTHER DISASTER 

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

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                      MAY 20, 2010--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations


       Available via the World Wide Web: http://www.gpo.gov/fdsys

                               __________

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                      COMMITTEE ON APPROPRIATIONS

                   DANIEL K. INOUYE, Hawaii, Chairman
ROBERT C. BYRD, West Virginia        THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont            CHRISTOPHER S. BOND, Missouri
TOM HARKIN, Iowa                     MITCH McCONNELL, Kentucky
BARBARA A. MIKULSKI, Maryland        RICHARD C. SHELBY, Alabama
HERB KOHL, Wisconsin                 JUDD GREGG, New Hampshire
PATTY MURRAY, Washington             ROBERT F. BENNETT, Utah
BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
DIANNE FEINSTEIN, California         SAM BROWNBACK, Kansas
RICHARD J. DURBIN, Illinois          LAMAR ALEXANDER, Tennessee
TIM JOHNSON, South Dakota            SUSAN COLLINS, Maine
MARY L. LANDRIEU, Louisiana          GEORGE V. VOINOVICH, Ohio
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
FRANK R. LAUTENBERG, New Jersey
BEN NELSON, Nebraska
MARK PRYOR, Arkansas
JON TESTER, Montana
ARLEN SPECTER, Pennsylvania

                    Charles J. Houy, Staff Director
                  Bruce Evans, Minority Staff Director
                                 ------                                

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

                       TOM HARKIN, Iowa, Chairman
DANIEL K. INOUYE, Hawaii             THAD COCHRAN, Mississippi
HERB KOHL, Wisconsin                 JUDD GREGG, New Hampshire
PATTY MURRAY, Washington             KAY BAILEY HUTCHISON, Texas
MARY L. LANDRIEU, Louisiana          RICHARD C. SHELBY, Alabama
RICHARD J. DURBIN, Illinois          LAMAR ALEXANDER, Tennessee
JACK REED, Rhode Island
MARK PRYOR, Arkansas
ARLEN SPECTER, Pennsylvania
                           Professional Staff

                              Erik Fatemi
                              Mark Laisch
                            Adrienne Hallett
                             Lisa Bernhardt
                       Bettilou Taylor (Minority)
                      Sara Love Swaney (Minority)
                      Jennifer Castagna (Minority)

                         Administrative Support

                              Teri Curtin

















                            C O N T E N T S

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                                                                   Page

Opening Statement of Senator Tom Harkin..........................     1
Statement of Hon. Joseph A. Main, Assistant Secretary of Labor 
  for Mine Safety and Health, Mine Safety and Health 
  Administration, Department of Labor............................     3
    Prepared Statement of........................................     5
Statement of Hon. M. Patricia Smith, Solicitor of Labor, 
  Department of La- 
  bor............................................................    11
    Prepared Statement of........................................    13
Statement of John Howard, M.D., Director, National Institute for 
  Occupational Safety and Health, Centers for Disease Control and 
  Prevention, Department of Health and Human Services, Atlanta, 
  Georgia........................................................    15
    Prepared Statement of........................................    17
Statement of Mary Lu Jordan, Chairman, Federal Mine Safety and 
  Health Review Commission, Washington, DC.......................    22
    Prepared Statement of........................................    23
Statement of Senator Robert C. Byrd..............................    29
    Prepared Statement of........................................    30
Statement of Don L. Blankenship, Chairman and CEO, Massey Energy 
  Company, Richmond, Virginia....................................    38
    Prepared Statement of........................................    40
Statement of Cecil E. Roberts, International President, United 
  Mine Workers of America, Fairfax, Virginia.....................    44
    Prepared Statement of........................................    46
Additional Committee Questions...................................    66
Questions Submitted to Hon. Joseph A. Main.......................    66
Questions Submitted by Senator Tom Harkin........................    66
Questions Submitted to John Howard...............................    84
Questions Submitted by Senator Thad Cochran......................    84
Questions Submitted by Senator Robert C. Byrd....................    85
Letter From Patton Boggs LLP.....................................    86


         INVESTING IN MINE SAFETY: PREVENTING ANOTHER DISASTER

                              ----------                              


                         THURSDAY, MAY 20, 2010

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 2:05 p.m., in room SD-106, Dirksen 
Senate Office Building, Hon. Tom Harkin (chairman) presiding.
    Present: Senators Harkin, Byrd, and Murray.


                opening statement of senator tom harkin


    Senator Harkin. The Labor, Health, Human Services, 
Education, and Related Agencies Appropriations Subcommittee 
will now come to order.
    The tragic loss of 29 lives and the two serious injuries at 
the Upper Big Branch mine in West Virginia is what brings us 
together this afternoon. Our hearts and prayers go out to their 
families, coworkers, and friends.
    As the son of a coal miner, I feel their loss.
    While Upper Big Branch was the catalyst for this hearing, 
we understand that investigations into this disaster are under 
way, and we will not ask the witnesses to comment on anything 
that could hinder those investigations. What we will discuss is 
how we can improve the safety and health of our Nation's 
miners.
    This subcommittee has taken the lead, over the past several 
years, in adding resources to the budgets of Federal agencies 
that are charged with this critical responsibility. Much of 
that credit belongs to Senator Byrd, who asked that we hold 
this hearing and will be joining us shortly. He is a true 
champion for West Virginia and coal miners everywhere.
    Over the past 2 years, additional funding provided by this 
subcommittee has enabled the Mine Safety and Health 
Administration (MSHA), to conduct 100 percent of its required 
safety and health inspections for the only time in its history, 
resulting in record low fatality rates in the mining industry. 
In fact, in 2009, the number of fatalities in coal mines 
reached a low of 18. To put that in perspective, when my father 
was a coal miner in Iowa, there were more than 3,000 mining 
fatalities every year.
    However, as the number of inspections went up, so did the 
number of citations. And, increasingly, mine operators have 
chosen to contest those citations rather than to pay them. In 
2006, operators contested roughly 7 percent of citations. Last 
year, they contested more than 25 percent.
    As a result, the appeals process has become backlogged at 
the Federal Mine Safety and Health Review Commission (FMSHRC), 
a situation that enables repeat offenders to avoid paying 
penalties or being placed on ``pattern of violations'' status. 
That backlog needs to be reduced, and I'm here to say, it will 
be reduced.
    Last year, at the request of Senator Byrd, this 
subcommittee funded the hiring of four new judges at the 
FMSHRC. In addition, last week, the Appropriations Committee 
marked up a supplemental spending bill that includes $22 
million to help the FMSHRC and the Department of Labor (DOL) 
process more cases and modernize its operations. We will 
discuss this in more detail later in this hearing.
    We will also hear from the National Institute for 
Occupational Safety and Health (NIOSH) about the investments 
this subcommittee has made in research and technology, 
particularly regarding communications devices, the 
effectiveness of mine rescue chambers, and the state of 
research into methane gas explosions.
    And we will explore how the funding can best help create 
the culture of safety that we need to protect our Nation's 
miners.
    These efforts go hand in hand with work I'm doing to 
improve mine safety on the authorizing side, as chairman of the 
HELP Committee. I held a mine safety hearing in that Committee 
3 weeks ago and am working on legislation that will ensure that 
MSHA has the tools it needs to effectively enforce the law and 
keep our workplaces safe.
    I will keep the record open for any opening statements by 
our Ranking Member, Senator Cochran. And we'll go into our 
first panel.
    Now, let me say, at the outset, that we have a vote at 2:30 
p.m. I will have to recess the subcommittee at that time for 
several minutes while we go over to vote on the cloture vote. 
But, then we will come back and resume our hearing, shortly 
thereafter.
    We have two panels today. For our first panel I'll 
introduce all the witnesses, and then we'll open it for 
statements our first panel. Mr. Joseph Main, has served as 
Assistant Secretary of Labor for Mine, Safety, and Health since 
October 2009. Mr. Main began working in the mines in 1967; in 
1974 he began his career with the United Mine Workers of 
America (UMWA); in 1982 he was appointed the administrator of 
the UMWA Occupational Health and Safety Department--a position 
he held for 22 years.
    Ms. Patricia Smith has served as the Solicitor of Labor 
(SOL) since March of this year. Prior to becoming the SOL, Ms. 
Smith was a New York State Commissioner of Labor. And prior to 
that, Ms. Smith served as chief of the Labor Bureau in the New 
York State Attorney General's office, a position she held since 
1999.
    Dr. John Howard has served as the Director of NIOSH since 
July 2002. Prior to this, Dr. Howard was the chief of the 
Division of Occupational Safety and Health in the California 
Department of Industrial Relations.
    Ms. Mary Lu Jordan has served as chairman of the FMSHRC 
since August 2009; also served as chairman of the FMSHRC from 
1994 to 2001, and as a commissioner from 2001 to 2009.
    So, we welcome all of you. I thank you all for your written 
statements. I've gone over those beforehand. But, what I'd like 
to ask first of all, all your statements will be made a part 
for the record in their entirety. I would ask if you could 
each, as we go in line, if you could sum up, in 5 or 6 minutes, 
the main thrust of your statement, I would appreciate that. And 
then we can get into a discussion.
    So, Mr. Main, welcome I would say ``back to the 
subcommittee,'' but I guess you appeared before my other 
Committee 3 weeks ago. So, welcome to this subcommittee. Please 
proceed, Mr. Main.
STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY 
            OF LABOR FOR MINE SAFETY AND HEALTH, MINE 
            SAFETY AND HEALTH ADMINISTRATION, 
            DEPARTMENT OF LABOR
    Mr. Main. Thank you, Mr. Chairman.
    Chairman Harkin and Vice Chairman Cochran, and members of 
the subcommittee, I want to thank you for the opportunity to 
appear before the subcommittee today and speak about the 
efforts that MSHA has made in the wake of the disaster at the 
Upper Big Branch mine.
    I want, again, to express my deepest condolences to the 
families, the friends, and the coworkers of the 29 miners who 
perished in the Upper Big Branch mine on April 5. I have been 
having quite a few meetings with the families to understand 
what their concerns are. our prayers are with them.
    Some have said the Nation should expect and accept a 
certain number of fatalities every year in coal mining. We, at 
the DOL and MSHA, do not agree with that. And we believe that 
the tragedy at the Upper Big Branch mine did not have to 
happen.
    Given that this is an appropriation hearing, I understand 
that we will be discussing an increase in MSHA's budget. But, I 
want to make very clear, however, the needs are more than 
money. No matter what resources the Congress is willing and 
able to appropriate, MSHA cannot be in every mine, every day, 
on every shift, nor should it be. It is the responsibility of 
mine operators to comply with the MINE Act and mandatory health 
and safety standards to avert injury, disease, and death. And 
only when we change the culture of safety throughout the mining 
industry, and all mine operators live up to their 
responsibilities, will all miners be safe.
    The resources are critically important. The additional 
resources that the subcommittee appropriated for MSHA, in the 
wake of Sago, Darby, and Aracoma explosions and fires, made an 
important contribution to increasing mine safety in this 
country. And the additional inspectors hired meant that, for 
the first time in years, MSHA has been able to complete all its 
mandated inspections. The actions of this Congress are very 
important.
    But, we need new resources, including new enforcement tools 
to leverage the improved inspection capability into a 
meaningful deterrent for operators, like Massey, that choose 
not to take their responsibility for the safety of its miners. 
Some of the new tools we intend to use are directed at creating 
incentives for operators to improve safety practices to prevent 
fatalities and injuries. Our goal is to create a system in 
which mine operators find and fix violations and abate 
hazardous conditions. We will propose a rule to reinstitute the 
requirement for preshift examinations for violations of all 
mandatory health or safety standards. And we'll solicit 
information on requiring the use of comprehensive health and 
safety management programs.
    Improving protection for whistleblowers would be an 
important tool in identifying dangerous practices and 
violations before fatalities and injuries occur. Miners must 
feel free to identify problems and insist that they be fixed, 
without fear of reprisal.
    MSHA must also have subpoena power to obtain information 
for timely investigations. The rules and adjudicative 
procedures to compel operators to remedy hazards must be 
strengthened. These include redesigning the Pattern of 
Violations Program and reducing the backlog at the FMSHRC. We 
have begun the process of redesigning how the Pattern of 
Violations Programs will work in the future and making it more 
effective. We have asked the FMSHRC to expedite review of high 
priority cases that will help us establish pattern of 
violations status for chronic bad actors. We're also issuing 
new regulations to simplify the criteria for placing mines into 
the Pattern of Violation Program. In addition, we will address 
the backlog by making the citation process more objective and 
consistent and improving the conferencing system. My colleague, 
SOL, Patricia Smith, will describe other efforts that MSHA and 
her office are undertaking to improve the adjudication of cases 
before the FMSHRC.
    We believe that these measures will have a positive effect 
on reducing the backlog. The President has committed to 
reducing the case backlog, and we appreciate that you share 
this priority.
    We also appreciate that you recognize that, to the extent 
that funding is provided to increase the number of FMSHRC 
judges, additional resources are needed for DOL to effectively 
bring cases before these new judges. In providing those 
resources, it is important that the DOL have the flexibility to 
determine the optimal mix of SOL and MSHA staffing and 
sufficient time to train and deploy the new staff.
    MSHA also needs the flexibility to ratchet up the power of 
our enforcement tools when we are dealing with the worst of the 
worst. As the laws stand now, we have limited civil and 
criminal tools to bring chronic scofflaws to justice. I am 
gratified that the Justice Department is pursuing a serious 
criminal investigation into the events that led to the Upper 
Big Branch mine disaster. We have learned, in the wake of the 
Upper Big Branch mine disaster, that our resources--our 
resource needs are not limited to our enforcement activities. 
MSHA needs additional tools to respond to mine emergencies, 
including funding for investigations, hearings, and public 
forums examining the Upper Big Branch disaster. This will 
likely be the most extensive and costliest investigation in the 
history of MSHA, and we need to ensure that it is done well and 
does not drain resources from other critical enforcement 
activities.
    MSHA mine rescue teams must be equipped to respond quickly 
and effectively, when time is of the essence, in reaching 
possible survivors of a mine explosion, fire, or entrapment. I 
saw firsthand the need for better communications systems during 
the rescue at Upper Big Branch. MSHA also lacks the necessary 
inventory of portable testing equipment, such as gas 
chromatographs, to be able to examine a mine's atmosphere. MSHA 
must also strengthen logistical emergency response capabilities 
in the Western United States.
    Another issue is the need for MSHA to make organizational 
changes in southern West Virginia, an area with the highest 
concentration of underground coal mines in the Nation. MSHA is 
considering a plan to split district 4 into two separate 
management and administrative functions. Another critical need 
MSHA hopes to meet is human testing of refuge chambers that 
miners may need to rely on in an emergency, that was part of 
the new MINER Act.


                           prepared statement


    In closing, I appreciate the steps that the Senate 
Appropriations Committee took last week in providing 
supplemental appropriations for mine safety, and look forward 
to working in the development of your regular appropriations 
bill. We owe it to our brave miners to do everything we can to 
ensure that they come home safely at the end of every shift.
    Again, I appreciate the opportunity to appear here today, 
and look forward to working with this subcommittee.
    Thank you.
    [The statement follows:]
                  Prepared Statement of Joseph A. Main
    Chairman Harkin, Vice Chairman Cochran, and members of the 
subcommittee: Thank you for the opportunity to appear as a witness 
before this subcommittee and speak to you about the efforts of the Mine 
Safety and Health Administration (MSHA) to protect the health and 
safety of the Nation's miners. I am joined today by Solicitor of Labor 
(SOL) Patricia Smith, who will be testifying about the role of the SOL 
in enforcing the Nation's mine safety and health laws, and in 
particular about the backlog of cases pending before the Federal Mine 
Safety and Health Review Commission (FMSHRC).
    I would like to once again express my deepest condolences to the 
families, friends and co-workers of the 29 miners who perished in the 
Upper Big Branch (Upper Big Branch) mine on April 5, 2010, as well as 
the surviving miners. Our prayers are with all of them.
    The Upper Big Branch mine explosion was the worst mining disaster 
since the creation of MSHA by the Federal Mine Safety and Health Act of 
1977, and the deadliest mining disaster this Nation has experienced in 
nearly 40 years. This tragic event is a call to action. As the 
President said of the 29 miners who lost their lives on April 5, ``we 
owe them 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.''
    Every worker has a right to a safe and healthy workplace. And every 
worker has a right to go home at the end of his or her shift and to do 
so without a workplace injury or illness. Workplace fatalities--even in 
an industry like underground coal mining--are preventable. No one 
should die for a paycheck.
    Some have said this Nation should expect and accept a certain 
number of fatalities every year in coal mining. The Department of Labor 
(DOL) and the MSHA could not disagree more strongly. Explosions in coal 
mines are preventable. The tragedy at the Upper Big Branch mine did not 
have to happen. It is the failure of mine operators to comply with the 
Mine Act and mandatory health and safety standards that can and does 
lead to injury, disease and death. We believe the history of repeated 
serious violations both at this mine and others throughout this country 
demonstrates that there are operations where mine management weighs the 
costs and benefits of complying with the law, rather than making 
responsibility for the safety and health of its miners their first 
priority. I welcome the opportunity to discuss with the subcommittee 
how we can work together to change this calculus.
                       events at upper big branch
    First, I would like to share with you a short summary of what 
happened on April 5, 2010 at Performance Coal Company's Upper Big 
Branch Mine--South (Upper Big Branch) in Montcoal, West Virginia. The 
mine operator of Upper Big Branch is Massey Energy Company, whose CEO, 
Don Blankenship, will be testifying on the next panel. We know that 
there was a catastrophic explosion in the mine at a shift change at 
approximately 3 p.m. The explosion killed miners in and around two 
working sections of the mine and those traveling from the working 
sections at the end of their shifts.
    In less than 3 hours, rescue teams were underground, responding to 
the disaster. Due to the extensive damage from the explosion, however, 
the rescue teams had a difficult time proceeding in the mine. Within 10 
hours of the disaster, rescue teams had found 25 of the victims. 
Dangerous conditions in the mine delayed and hampered continuing rescue 
and recovery efforts. Mine rescue teams attempted to again enter the 
mine on April 7, 8, and 9. Each time they were forced to exit before 
the final four miners were found. Finally, on the evening of April 9, 
they were able to enter and found the final four miners. While we were 
able to recover all the victims, we are still working to ventilate the 
mine so that it is safe enough to enter the area of the explosion and 
conduct our physical investigation.
    While the cause of this specific explosion is still being 
determined, most mine explosions are caused by accumulations of 
methane, which can combine with combustible coal dust mixed with air. 
Historically, blasts of this magnitude have involved propagation from 
coal dust that becomes suspended in the air following an initial blast.
    I understand that this is an appropriations hearing and we will be 
discussing an increase in MSHA's budget, but the needs are more than 
money. No matter what level of resources the subcommittee is willing 
and able to appropriate for MSHA, MSHA cannot be in every mine, every 
day, on every shift. Nor should it. It is the mine operator's 
responsibility to provide a safe mine and to protect its miners whether 
an MSHA inspector is standing in that mine or not. Only when we change 
the culture of safety in the mining industry--and when all mine 
operators live up to their responsibilities--will all miners be safe.
    That is not to say that resources--both legal and fiscal--are not 
important. They are critically important. MSHA must have the resources 
and tools it needs to support its efforts to hold accountable mine 
operators who are not living up to their moral and legal responsibility 
to maintain a safe mine.
    The additional resources that this subcommittee appropriated for 
MSHA in the wake of the Sago and Darby explosions and the Aracoma fire 
made an important contribution to increasing mine safety. The 
additional inspectors that MSHA has hired since 2006 has meant that for 
the first time in years MSHA has been able to complete all its mandated 
inspections. We are finding more violations and requiring mine 
operators to abate them.
  enforcement at upper big branch and msha's current enforcement tools
    Since the Upper Big Branch disaster we have taken a new look at how 
we use our resources and tools and we are trying to use them as 
creatively, efficiently, and effectively as possible. For example, 
between April 19 and April 23, MSHA conducted blitz inspections at 
underground coal mines with a history of significant and/or repeat 
violations of safety standards involving mine ventilation, methane, 
failure to conduct or adequately document examinations, and/or rock 
dusting. As a result, through use of enforcement tools that permit MSHA 
to close the areas of mines affected by particular hazards, we required 
six underground mines in Kentucky to suspend production until the 
violations were corrected. At those six mines, MSHA issued 238 
citations, 55 orders, and 1 safeguard. At the mines we blitzed 
nationwide, MSHA issued 1,339 citations, 109 orders, and 6 safeguards. 
Finally, we have sued two of the six Kentucky mines for illegally 
providing advance notice of MSHA inspectors' presence at the mine.
    MSHA's history in the Upper Big Branch mine also demonstrates the 
kind of heavy presence that a beefed-up inspector corps allows MSHA to 
have at a troublesome mine. MSHA engaged in a multi-year effort to use 
the tools we had available to force Massey Energy to comply with the 
law and turn around its extensive record of serious safety and health 
violations at the Upper Big Branch mine. From 2007 until today, MSHA 
has steadily increased its enforcement presence at Upper Big Branch 
mine. In 2007, MSHA inspectors were on-site at Upper Big Branch mine a 
total of 934 hours. In 2009, inspectors were on-site at the mine for a 
total of 1,854 hours.
    During all those hours of inspections, MSHA found and issued an 
increasing number of citations for ``significant and substantial'' 
(S&S) violations of the Mine Act, including an alarming number of 
citations and orders requiring miners to be withdrawn from the mine. In 
December 2007, MSHA informed the mine it could be placed into a 
``pattern of violations'' status if it did not take steps to reduce its 
significant and substantial violations. If implemented, pattern of 
violations status would have given MSHA a powerful enforcement tool, 
enabling the agency to order the withdrawal of miners from any area 
with S&S violations until such violations were fixed. However, Massey 
was able to successfully avert these consequences by reducing the 
levels of serious violations thereby avoiding being classified in a 
``pattern of violations'' status.
    Upper Big Branch mine again experienced a significant spike in 
safety violations in 2009. MSHA issued 515 citations and orders at the 
mine in 2009 and another 124 to date in 2010. MSHA issued fines for 
these violations of nearly $1.1 million; although most of those fines 
are being contested by Massey.
    The citations MSHA has issued at Upper Big Branch have not only 
been more numerous than average, they have also been more serious. More 
than 39 percent of citations issued at Upper Big Branch in 2009 were 
for S&S violations. In some prior years, the S&S rate at Upper Big 
Branch has been 10-12 percent higher than the national average.
    In what is perhaps the most troubling statistic, in 2009, MSHA 
issued 48 withdrawal orders at the Upper Big Branch mine for repeated 
actions that violated safety and health rules. Massey failed to address 
these violations over and over again until a Federal mine inspector 
ordered it done. The mine's rate for these kinds of violations is 
nearly 19 times the national rate.
                      needed reforms and resources
    As you can see, MSHA is doing what Congress instructed it to do 
with the post-Sago increase in resources. It is inspecting mines and 
issuing citations for the violations it finds. When I came on the job 
in October, I made a commitment to do it better, more forcefully, and 
smarter. As I mentioned earlier, however, citations and orders alone 
will not solve the problems that we face. We need resources--both legal 
and fiscal--to leverage those citations and orders into a meaningful 
deterrent for operators like Massey that choose not to take 
responsibility for the safety of its miners.
    Now, I would like to share with the subcommittee what we are doing 
to make our enforcement efforts as effective as possible and what 
Congress can do to support those efforts and remove existing obstacles.
    First, I believe that we must create incentives for operators to 
improve safety practices to prevent fatalities and injuries. To achieve 
this goal, we need a system in which mine operators have programs and 
procedures in place to fix violations and abate hazardous conditions. 
Our spring regulatory agenda is focused on regulations that will 
require companies to take responsibility to find and fix problems 
before they are discovered by MSHA.
    Thus, we will be proposing a rule to reinstitute the requirement 
for pre-shift examinations for violations of mandatory safety and 
health standards in areas of underground coal mines where miners work 
or travel. I have been telling the mining industry since I became 
Assistant Secretary of Labor for MSHA that they must take more 
responsibility for the safety and health of the miners at their mines. 
That starts with fulfilling their responsibility to inspect their mines 
to make sure they are operating in compliance with the mine safety and 
health laws and regulations.
    In addition, we announced that we are moving forward to solicit 
information on requiring the use of a comprehensive health and safety 
management program in the mining industry. We believe that these 
measures will help prevent unsafe and unhealthy conditions from 
threatening workers.
    Next, we must improve our ability to identify dangerous practices 
and violations before fatalities and injuries occur. MSHA is not (and 
cannot be) in every mine, every day, on every shift. That is why it is 
so important for workers to have a voice in raising concerns with their 
employer or reporting conditions to MSHA without fear of reprisal, and 
for MSHA to have more tools to deal with mine operators who engage in 
``catch me if you can'' tactics. Just last month, concerned individuals 
demonstrated the importance of the role of workers and the public in 
addressing safety concerns, when they notified MSHA inspectors in three 
separate anonymous complaints about hazardous conditions at three 
Massey-owned coal mines in West Virginia. Especially troubling is that 
one of the complaints came just days after the explosion at Upper Big 
Branch Mine. At one mine, the anonymous complaint reported that Massey 
was unlawfully running two continuous miners on a single split of air, 
violating its MSHA-approved mining plan by removing more coal than 
authorized, and failing to report several face methane ignitions (small 
explosions) to MSHA. Another anonymous complaint at a different mine 
reported water blocking an escapeway used to evacuate the mine in 
emergencies. When MSHA made unexpected inspections in the evening, and 
in two cases captured the mine phones preventing calls underground to 
warn of the inspection, inspectors found a number of illegal mining 
practices. Those included: mining of coal several feet beyond legal 
limits; mining without air movement to prevent mine explosions and 
exposure to dust levels that can cause black lung; inadequate rock 
dusting, which is a critical protective measure to prevent coal dust 
explosions; blocking of miner escapeways by accumulated water; 
inadequate mine examinations by the mine operator; and mine roof 
conditions exposing miners to roof fall hazards. Following each 
investigation, MSHA issued several closure orders requiring the 
withdrawal of miners from designated areas of those mines until the 
hazards were abated and it issued multiple citations for serious 
violations.
    Clearly, laws protecting miners who want to come forward need to be 
strengthened. While someone came forward in these three cases, too many 
others will not or cannot out of fear of endangering their jobs and 
their families' livelihoods. A number of current and former Massey 
employees have publicly stated that miners at Upper Big Branch who 
reported hazards to the company or MSHA risked losing their jobs, 
sacrificing pay, or suffering other adverse actions. While we will 
thoroughly investigate these troubling claims, we also need to examine 
how we can change the law to put these fears to rest.
    Miners must feel free to identify problems and insist they be fixed 
without fear of reprisal. MSHA must have the tools it needs to obtain 
information for timely investigations when miners report hazardous 
conditions, as well as the tools to protect miners who are 
discriminated against for reporting such conditions or otherwise 
exercising their rights under the Mine Act. MSHA must also have 
increased tools to respond to the ``catch me if you can'' mine 
operators who blatantly disobey the law, exposing miners to injury, 
illness and death when they think or know MSHA will not be there.
    Next, we must improve the rules and adjudicative procedures to 
compel operators to remedy hazards. As you know, the President has 
committed to reducing the large and growing case backlog at the FMSHRC. 
The well-documented shortcomings of the current pattern of violations 
process and the unconscionable backlog of cases at the FMSHRC 
demonstrate that it is too easy for even the worst offenders to avoid 
the heightened enforcement status envisioned by Congress.
    Following my confirmation as Assistant Secretary of Labor for Mine 
Safety and Health, fixing the pattern of violations program became a 
top priority. Since the Upper Big Branch disaster, we have spent a 
considerable amount of time at MSHA reviewing pattern of violations, as 
well as the other tools available to MSHA to enforce the law. It has 
become clear to me that we need bold action by both MSHA and the 
Congress to solve this problem.
    The pattern of violations program has received a great deal of 
attention in the aftermath of the Upper Big Branch disaster. MSHA has 
the authority to place a mine into a ``pattern of violations'' 
category, which under current policy is based on a number of criteria 
including the number of serious violations the operator has amassed 
within a 24-month timeframe. If a mine ends up in a ``pattern of 
violations'' status, MSHA can issue withdrawal orders for every serious 
violation until each violation is fixed. The ``pattern of violations'' 
program should be one of MSHA's most serious and effective tools for 
holding bad actors, like Massey Energy, accountable, but it is not. 
MSHA's experience at the Upper Big Branch mine demonstrates the 
program's limitations under current procedures.
    Massey Energy employed a popular tactic at Upper Big Branch used by 
mines with troubling safety records to avoid potential pattern of 
violations status. Massey Energy contested large numbers of their 
significant and substantial citations. In calendar year 2009, the 
Massey Energy Company received proposed penalties that totaled in 
excess of $13.5 million, and contested $10.5 million of those 
penalties, or 78 percent. MSHA uses only final orders to establish a 
pattern of violations. It takes more than 600 days for the average 
contested citation to reach the ``final order'' stage from the day the 
citation is written. The delay is due largely to a more than 16,000 
case backlog at the FMSHRC.
    Even if an excessive contest strategy fails and a mine ends up in a 
``potential pattern of violations'' status, an operator can almost 
always avoid the ultimate ``pattern of violations'' label with 
temporary improvements in safety. The current system allows an operator 
to avoid going into a pattern of violations status if the operator 
reduces its S&S violations rate by more than 30 percent within 90 days 
or brings it below the national average for mines of similar type and 
size. Upper Big Branch mine did this in 2007 and avoided a pattern of 
violations status by reducing S&S violation rate by 30 percent, even 
though its number of S&S violations remained above the national 
average. The policies this administration inherited make it relatively 
easy for operators like Massey to avoid pattern of violations status. 
In fact, MSHA has been able to place only one mine into pattern of 
violations status since passage of the 1977 Mine Act, and that order 
was revoked when two of the violations on which it was based were 
thrown out through the contest process.
    We realize the current pattern of violations program is broken and 
must be fixed. As I said, we believe that there are two components to 
fixing the problem: (1) redesigning the program, and (2) reducing the 
FMSHRC backlog. I believe that both MSHA and the Congress have a role 
to play in addressing each component.
    MSHA has already begun the process of redesigning how the pattern 
of violations program will work in the future and making the program 
more effective. We are asking the FMSHRC to expedite its review of 
cases whose adjudication to final order status is necessary to get bad 
actor operators into pattern of violation status. In addition, in our 
regulatory agenda, we announced that we will be issuing new regulations 
to simplify the criteria for placing mines into the pattern of 
violations program. There are fundamental challenges in the pattern of 
violations program that may need legislative fixes and I look forward 
to working with the Congress on developing those.
    As it now stands, the backlog at the FMSHRC is a major impediment 
to the effective use of the pattern of violations program and to MSHA's 
ability generally to hold mine operators accountable for safety and 
health violations. As of May 5, 2010, there were approximately 16,000 
cases and 89,000 violations pending before the FMSHRC in some phase of 
the penalty contest process. There are approximately $209 million in 
contested fines pending. The average case takes more than 600 days to 
resolve from the time a violation is issued. I believe that we need 
regulatory, legislative, and budgetary action to solve this problem.
    At a hearing before the House Education and Labor Committee on 
February 23 of this year, I outlined specific measures MSHA was 
considering to address the backlog problem. I do not believe that an 
increase in litigation alone can resolve the backlog problem. That's 
why we are moving to improve the cases we bring to the FMSHRC and how 
we handle them once they are there. We will make the citation process 
more objective and consistent by simplifying the citation and penalty 
determination process and improving related training, improving the 
conferencing system, making greater use of the ``closeout'' inspection 
meeting after mine inspections, continuing to develop training programs 
and materials to aid mine operators with compliance and pursuing 
corporate-wide holistic settlements that require operators to implement 
meaningful health and safety programs.
    In addition, we look forward to working with Congress to change the 
incentives for mine operators to contest violations, such as requiring 
mine operators to put significant penalty amounts in escrow or to 
impose pre-judgment interest on penalties. We also hope that the FMSHRC 
and Congress will consider ways to simplify the FMSHRC's processes. We 
also hope that these changes will slow down the rate of cases going 
into the FMSHRC's pipeline.
    As long as it exists, the backlog diminishes the system of 
protections the Mine Act was designed to provide. It is an incentive 
for the ``business as usual'' attitude among operators who chose to 
contest violations as a cost of doing business instead of taking a 
proactive and responsible role in making their mines safer. The 
perception that a penalty can be delayed or settled on highly favorable 
terms because of the huge caseload at the FMSHRC encourages behavior 
that will cause the backlog to grow.
    To the extent that funding is provided to increase the number of 
FMSHRC judges additional resources will be needed for SOL and MSHA to 
staff the litigation and litigation support to effectively bring cases 
before these new judges. For example, if resources were provided to 
immediately increase the number of judges at the FMSHRC to 26, then the 
SOL and MSHA would require roughly an additional $26.6 million above 
the fiscal year 2010 appropriation and the President's 2011 budget 
request.
    While we believe an approach that tries only to litigate our way 
out of the backlog would be unworkable, combined with additional 
reforms, more resources for taking cases to trial would both reduce the 
backlog and enhance the effectiveness and implementation of other 
reforms. In providing those resources, it is important that the DOL 
have the flexibility to determine the optimal mix of SOL and MSHA 
staffing to scale-up FMSHRC litigation and case resolution and to 
adjust to changes in the mix of cases before the FMSHRC. And in order 
for the DOL to use new resources most effectively, we must be given 
enough time to train and deploy any new staff.
    MSHA also needs the flexibility to ratchet up the power of our 
enforcement tools when we are dealing with the worst of the worst. As 
the law stands now, we have limited civil and criminal tools to bring 
chronic scofflaws to justice. I am gratified to know that the Justice 
Department is pursuing a serious criminal investigation into the events 
that led to the Upper Big Branch mine disaster. However, this isolated 
criminal investigation, which is still in its early stages, should not 
fool us into thinking that the Mine Act's criminal and significant 
civil penalties are sufficient.
    Stronger civil and criminal penalties are needed to make sure that 
mine operators are not allowed to knowingly or persistently put the 
lives of miners at risk. These penalties should extend to individuals 
at all levels of management who make decisions about the safety of 
miners. Making these kinds of changes will serve as a powerful 
deterrent against making decisions that put miners at risk. I look 
forward to working with the Congress on developing these ideas.
            msha's operational and emergency response needs
    Improving the health and safety of miners in light of both the 
lessons highlighted and the many questions raised by the Upper Big 
Branch disaster is not limited to the area of enforcement and legal 
reform. MSHA supports the provision of resources for a number of other 
needs critical to eliminating the most immediate risks to miners and 
for ensuring that MSHA can effectively respond to mine emergencies.
    One immediate need is to find out what happened at Upper Big 
Branch. We need to know what happened in that mine on April 5, but we 
also need to understand in the broadest sense how this could have 
occurred. We anticipate the investigations, hearings and public forums 
examining the Upper Big Branch disaster and the surrounding 
circumstances will be the most extensive and the costliest 
investigation in the history of MSHA. The accident investigation team 
is gathering evidence in advance of public hearings to examine the 
cause or causes of the explosion. MSHA will also conduct a public forum 
for family members to offer their thoughts about the explosion, the 
response, the investigation, and potential reforms, as well as a town 
hall style meeting to exchange ideas about health and safety at mining 
operations and to gather recommendations. In addition, MSHA will 
conduct an internal review and will have that internal review 
independently evaluated by a team selected by the National Institute 
for Occupational Safety and Health. MSHA needs to be able to provide 
the resources for all these activities without negatively impacting its 
ability to continue its regular enforcement activities, like its 
statutory inspections.
    MSHA needs better capabilities in responding effectively in mine 
emergencies, particularly when miners are trapped underground, and has 
identified some important needs. MSHA and mine rescue teams must be 
equipped to respond as quickly and effectively as possible when time is 
of the essence in reaching possible survivors of a mine explosion, 
fire, or entrapment. I have participated in numerous mine emergency 
responses in the time I have worked in the mining industry. The Upper 
Big Branch disaster was my first as Assistant Secretary. I was at 
MSHA's mobile operations center at the Upper Big Branch mine, and saw 
firsthand the need for better communications systems to coordinate 
rescue efforts and exchange information and data while in the field. As 
in this case, mine rescues often occur in rural areas where cellular 
service does not work and time is of the essence in securing 
communication between the command center, the mine, and areas where 
boreholes are being drilled in an effort to contact trapped miners or 
improve air ventilation. MSHA also lacks the necessary inventory of 
portable testing equipment such as gas chromatographs, used to process 
air readings from a mine during an emergency, and the ability to 
transfer copies of mine maps and other technical data.
    MSHA supports funding for placing caches of essential equipment at 
all of the coal districts along with first response teams to further 
improve MSHA's response time to emergencies. MSHA also sees a strong 
need to strengthen our logistical emergency response capabilities in 
the Western United States at our Price, Utah and Denver, Colorado 
facilities with better vehicles and communication and other equipment.
    There is more to be done regarding MSHA's mine emergency response 
capability. The American people expect the Government to be responsive 
and effective in such emergencies, and, as I described above, the most 
recent tragedy revealed some areas where MSHA needs additional 
resources in order meet that expectation.
    Another issue is the need for MSHA to make organizational changes 
in southern West Virginia to ensure its existing resources get optimal 
use in an area with the highest concentration of underground coal mines 
in the Nation. Coal mine safety in southern West Virginia is covered by 
MSHA's Coal Mine Safety and Health District 4. MSHA is considering a 
plan to split district 4 into two distinct districts with separate 
management and administrative functions, and whether MSHA can better 
carry out its oversight of mine safety if it makes such a change. Of 
the Nation's 11 coal districts, district 4 has the most employees and 
the most significant workload with the smallest ratio of supervisory 
staff to line employees. Its workload is almost 50 percent higher than 
the next busiest district in many key indicators such as contested 
citations and plan approvals. In order for management to best be able 
to spot problem or potentially problematic mines and react 
responsively, it would seem that dividing this district into two 
districts of better manageable sizes would be the best approach.
    Another critical need MSHA hopes to meet is testing of the refuge 
chambers miners rely upon if trapped underground in a mine emergency. 
When Congress passed the MINER Act in 2006 after the Sago disaster it 
required underground coal mines to install what are commonly referred 
to as refuge chambers, where miners would have available breathable 
air, food, and water until help could arrive from the surface. The 
implementation of this requirement was a significant improvement in 
mine safety. However, some of the more common commercially available 
units have not been tested for human survivability. Such testing for 
survivability in extreme conditions such as heat from geothermal 
sources or a fire is a high-priority need.
                               conclusion
    I appreciate the action that the Senate Appropriations Committee 
took last week in providing supplemental appropriations and I look 
forward to working in the development of your regular appropriations 
bill to ensure that we keep the President's promise to have the Federal 
Government do everything it can to improve worker safety. Our Nation's 
brave miners go to work every day to provide electricity to our homes 
and our businesses. We owe it to them to do everything we can to ensure 
that every miner--and every worker--comes home safely at the end of 
every shift.
    Again, I appreciate the opportunity to appear here today, and look 
forward to working with the subcommittee.

    Senator Harkin. Thank you very much, Mr. Main.
    Now we'll turn to our Solicitor of Labor, Ms. Smith.
STATEMENT OF HON. M. PATRICIA SMITH, SOLICITOR OF 
            LABOR, DEPARTMENT OF LABOR
    Ms. Smith. Chairman Harkin, thank you for inviting me here 
today to discuss a matter of great concern to me, which is the 
role of the Solicitor's office in holding mine operators 
accountable and the resources that my office needs to do that 
job effectively.
    But, as Assistant Secretary Main testified, the problem is 
fundamentally a health and safety problem. Mine operators must 
do a better job of eliminating unsafe conditions in the first 
place. If MSHA inspectors can find violations, then mine 
operators should be able to find them also, and fix them before 
there are injuries and deaths.
    Since the 2006 passage of the MINER Act, and since MSHA's 
penalties increased in 2007, as you noted, many mine operators 
have dramatically increased their rate of penalty contests and 
citation contests. Mine health and safety is poorly served when 
the system is overwhelmed by high contest rates and cases are 
not decided promptly. But, as Assistant Secretary Main said, 
the problem can't be fixed simply by litigating out of it; 
other reforms are needed as well.
    I want to recognize and thank the subcommittee for their 
work last week in moving closer to supplemental funding for the 
DOL and the FMSHRC. We understand that a single judge can 
dispose of approximately 500 cases a year. Our own statistics 
show that, under the current litigation process, the DOL uses 
approximately 14 employees for each judge. That includes the 
Solicitor's office, attorneys, MSHA conference litigation 
representatives, and support staff. So, to the extent that the 
FMSHRC is funded for additional judges, the SOL's office and 
MSHA will need a corresponding increase in resources.
    If resources were provided to immediately increase the 
number of judges at the FMSHRC to 26, the SOL's office and MSHA 
would require, roughly, additionally, $26.6 million above the 
fiscal year 2010 appropriation and the President's 2011 year 
budget request. With any supplemental appropriation, we would 
request the flexibility to adjust the ratio of Solicitor's 
attorneys, MSHA personnel, and support staff, based on the mix 
of cases before the FMSHRC. Also, hiring, training, and 
deploying attorneys and CLRs will require time. Ideally, we 
would like any new funds to be made available over a period of 
time. That will enable us to use the funds in the most 
efficient and cost effective way possible.
    I've gone into greater detail in my written testimony 
regarding what goes into the case preparation and to explain 
why MSHA litigation is so resource intensive. But, to fix the 
backlog problem over the long run, we're going to need new 
tools, and I'd like to discuss a few of them.
    First, I'd like to note that the FMSHRC published, in the 
Federal Register this morning, a proposed rule on simplified 
case proceedings. And I fully support the concept of 
simplifying the FMSHRC's adjudicatory proceedings. I believe 
that streamlining the process in appropriate cases will help 
the Solicitor's office and MSHA use their resources more 
efficiently to resolve cases more quickly.
    In addition, we've supported a number of legislative 
reforms that would help improve the backlog and improve mine 
safety. Subpoena power in routine investigations in inspections 
is one reform that would greatly assist us. Another reform 
would clarify the proof needed to establish that a violation is 
significant and substantial. Under current FMSHRC case law, 
such a violation is difficult and resource intensive for us to 
prove. Still other reforms could provide financial 
disincentives for operators to contest cases by requiring them 
to put penalty amounts in escrow or to prepay or to pay 
prejudgment interest on final penalty amounts.
    We also support reforms in the pattern of violation 
process. MSHA's regulatory agenda includes a rulemaking to 
revise the way MSHA determines what's happening in pattern of 
violation cases.
    In the meantime, we have begun to file motions to expedite 
cases before the FMSHRC. We hope that expediting appropriate 
cases will remove another incentive that operators have to 
contest violations. And, for the first time, we're working with 
MSHA to identify appropriate cases in which to file for 
injunctive relief against mines with a pattern of violations.
    In addition, I support MHSA's plans to revise its penalty 
rules to simplify the categories on which penalties are based, 
such as the degree of operator negligence and the degree of 
gravity of the violation. By simplifying the penalty assessment 
process, we expect to see fewer issues on which MSHA and the 
operators can disagree and fewer contested citations.
    And there are some things that SOL can do to provide 
incentives not to contest cases. Operators must be dissuaded 
from contesting citations simply because they believe they can 
get their penalties reduced. In appropriate cases, we therefore 
may ask for an increase in penalties in litigation so that 
operators understand that there are significant disincentives 
for filing frivolous contests, especially in penalty cases.
    I thank you for the opportunity to testify today.
    Resources are an important part of the problem, but so are 
the other issues that I talked about.
    [The statement follows:]
                Prepared Statement of M. Patricia Smith
    Chairman Harkin, Vice Chairman Cochran, and members of the 
subcommittee: Thank you for inviting me here today to discuss a matter 
of great concern to me: the role of the Solicitor's Office in holding 
accountable those mine operators who do not live up to their moral and 
legal responsibility to ensure mine workers' safety and health and the 
resources the Solicitor's Office (SOL) needs to carry out that role 
effectively.
    This problem is, fundamentally, a safety and health problem. The 
Mine Safety and Health Administration (MSHA) cannot be present at every 
mine at all times, nor should it be. Mine operators are the ones on the 
front lines of safety and health efforts, and they must do a better job 
of eliminating unsafe conditions in the first place. If MSHA inspectors 
can find violations, then mine operators should be able to find them, 
too--and fix them before they produce worker injuries and illnesses.
    As you've heard, MSHA has used the additional funding you've 
provided during the past several years to hire more inspectors, which 
has enabled the agency to perform 100 percent of its statutorily 
mandated inspections and to conduct spot inspections and special 
emphasis programs. With more inspections, MSHA has found more 
violations and issued more citations. It also has assessed higher 
penalties as a result of statutory and regulatory penalty increases. At 
the same time, however, many mine operators have dramatically increased 
their contest rates, which has resulted in delayed adjudications and 
mounting case backlogs.
    As you know, the President has committed to reducing the large and 
growing case backlog at the Federal Mine Safety and Health Review 
Commission (FMSHRC). Miner safety and health is poorly served when the 
system is overwhelmed by high contest rates and cases are not decided 
promptly. Backlogs and delays impede justice and dilute the deterrent 
effect that Congress intended civil penalties to have. But while 
litigation may have created the backlog, it cannot, by itself, 
eliminate it. As Assistant Secretary of Labor for Mine, Safety, and 
Health, Joseph Main said, this problem can't be fixed simply by adding 
more money for lawyers, judges, and MSHA personnel to settle and 
litigate cases.
    You asked me to provide information regarding resources needed to 
support the anticipated increase in the number of administrative law 
judges of the FMSHRC. According to the FMSHRC's fiscal year 2011 budget 
request, a single judge can dispose of approximately 500 cases a year. 
Our own statistics show that, under the current litigation process, the 
Solicitor's Office utilizes approximately seven attorneys for each 
judge--and that does not include resources that MSHA expends on 
FMSHRCcases using its conference litigation representatives (CLRs).
    To the extent that the FMSHRC is funded for additional judges, the 
Solicitor's Office (SOL) and MSHA will need a corresponding increase in 
resources. For example, if resources were provided to immediately 
increase the number of judges at the FMSHRC to 26, then the SOL and 
MSHA would require roughly an additional $26.6 million above the fiscal 
year 2010 appropriation and the President's 2011 budget request. With 
any supplemental appropriation, we would request that Congress provide 
us with the flexibility to adjust the ratio of SOL attorneys and 
support staff and MSHA CLRs and support staff based on the mix of cases 
before the FMSHRC.
    While we would begin to use any new resources promptly, hiring, 
training, and deploying attorneys and CLRs will require time. Ideally, 
we would want any new funds to be made available over a period of time 
that will enable us to use the funds in the most efficient, cost-
effective way possible, or to have an understanding that any down 
payment in a supplemental appropriation would be followed by the 
resources in the regular appropriation to address what is clearly a 
multi-year process. As we begin to implement improvements in the way we 
handle FMSHRC cases, which would be designed, at least in part, to 
achieve greater efficiencies, we would hope to need fewer resources.
    Let me tell you a little about the process so that you can 
appreciate the workload involved.
    Each FMSHRC case typically involves a number of citations issued to 
an operator during a single inspection or related inspections. Each 
contested citation must be litigated separately, including the 
violation itself, any special findings, and the proposed penalty. Our 
attorneys research and investigate each item and often find it is 
necessary to consult with MSHA inspectors and experts just to 
understand the unique worksites and the technologically complex 
processes that are at issue.
    Our attorneys also prepare and file with the FMSHRC all necessary 
legal documents, including the petition, answers to notices of contest 
and motions. They also engage in settlement talks, discuss settlement 
offers with MSHA, and draft and file motions to approve settlements. 
Until a case has settled, however, our attorneys must still do all the 
things necessary to prepare for trial, including identifying, locating, 
interviewing, and evaluating witnesses--including expert witnesses--as 
well as obtaining and analyzing ventilation or roof control plans, mine 
maps, dust samples, inspector notes, and photographs.
    Discovery--which takes place outside of court and generally without 
the involvement of a judge--can be especially time-consuming. A judge's 
order setting discovery deadlines may take the judge a few minutes to 
prepare, but conducting the actual discovery--preparing 
interrogatories, requests for production of documents, and requests for 
admissions, responding to operator requests, and preparing for and 
defending depositions--can take weeks and sometimes months. Depositions 
themselves usually require costly, time-consuming travel.
    Of course trial preparation--drafting pretrial motions, preparing 
witnesses, negotiating with opposing counsel--is also resource 
intensive, and actual trials can last days and usually involve travel. 
Some trials require even larger amounts of time. For example, recently 
we went to trial on a case in which we litigated 29 separate 
significant and substantial violations in an attempt to establish that 
a Massey mine--the Tiller Mine--should be put on a pattern of 
violations. Six attorneys have worked more than 1,000 hours on that 
case, and more work may be required once a decision is issued.
    In addition to their own caseloads, SOL attorneys train CLRs and 
supervise their cases. We train MSHA inspectors in subjects such as 
evidence and courtroom procedures. And we analyze, in advance, all 
cases in which MSHA is considering individual agent liability, a 
``flagrant'' designation, or a pattern of violations designation.
    More judges may, of course, be part of the backlog solution, but 
only if they are accompanied by more CLRs and SOL attorneys--and only 
if we have enough time to train and deploy them. To fix the backlog 
problem over the long run, we will need other tools as well. I'd like 
to discuss a few of them:
  --Simplified Commission Proceedings.--I support fully the concept of 
        simplifying the Commission's adjudicatory proceedings, which 
        Chairman Jordan mentioned. Streamlining the process in 
        appropriate cases can help reduce the backlog by resolving them 
        quickly and efficiently.
  --Legislative Reforms.--We support a number of legislative reforms 
        that could help reduce the backlog and improve mine safety and 
        health. Subpoena power in routine investigations and 
        inspections is one reform that would allow us more easily to 
        obtain the evidence we need to resolve cases quickly. Another 
        reform could clarify the proof needed to establish that a 
        violation is ``significant and substantial.'' Under current 
        FMSHRC case law, such a violation is difficult and resource-
        intensive for us to prove. Still other reforms could provide 
        financial disincentives for operators to contest cases by 
        requiring them to put penalty amounts in escrow while their 
        cases are pending, or to pay pre-judgment interest on final 
        penalty amounts.
  --Revise the Pattern-of-Violations (POV) Process.--MSHA's Spring 
        Regulatory Agenda includes a rulemaking to revise the way MSHA 
        determines whether an operator has committed a pattern of 
        violations. The proposed rule would reduce the current 
        incentive for operators to contest violations in order to avoid 
        final orders that count toward a pattern of violations. MSHA 
        also is considering revising its internal policies for 
        identifying operators for a potential pattern. SOL will work 
        with MSHA to craft these new rules and policies. We also 
        believe that legislative changes to the POV process may be 
        necessary to make it more useful as a tool to address problem 
        behavior in a more timely way, and look forward to exploring 
        those changes with the Congress.
  --Develop Better Cases.--Good evidence, of course, is the key to 
        strong cases. For example, recently we worked with MSHA to 
        issue guidance that encourages inspectors to use cameras 
        wherever possible to document violations. Commonsense steps 
        like this can help reduce the number of facts at issue and lead 
        to faster case resolutions.
  --Simplify Penalties.--SOL is planning to help MSHA revise its 
        penalty rules so that the categories on which penalties are 
        based--such as the degree of operator negligence and the 
        gravity of the violation--are simpler. By simplifying the 
        penalty assessment process, we expect to see fewer issues on 
        which MSHA and operators can disagree, and fewer contested 
        citations.
  --Provide Incentives Not To Contest Cases.--Operators must be 
        dissuaded from contesting citations simply because they believe 
        they can get their penalties reduced. In some cases we 
        therefore may ask for an increase in the penalties so that 
        operators understand that there are significant disincentives 
        to filing frivolous contests, especially in serious cases.
    Thank you for the opportunity to testify here today. The time is, 
indeed, right for reform. But for reform to be truly effective and 
achieve long-term case control, we must pursue a multi-pronged 
approach. Resources are an important prong, but administrative, 
regulatory and legislative reforms are essential for long-term 
solutions. I look forward to taking your questions.

    Senator Harkin. Thank you very much, Ms. Smith.
    Now we'll turn to Dr. Howard.
    Dr. Howard.
STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL 
            INSTITUTE FOR OCCUPATIONAL SAFETY AND 
            HEALTH, CENTERS FOR DISEASE CONTROL AND 
            PREVENTION, DEPARTMENT OF HEALTH AND HUMAN 
            SERVICES
    Dr. Howard. Thank you very much, Mr. Chairman.
    On behalf of everyone who works at NIOSH, we'd also like to 
express our condolences to the families of the miners who died 
in the Upper Big Branch disaster, and to all other mining 
families who have lost, tragically, their loved ones.
    These tragic losses underscores the importance of 
preventing mine disasters, which is the ultimate goal of 
NIOSH's mine safety and health research. Since passage of the 
MINER Act in 2006, NIOSH has focused efforts in several 
different research areas, including coal dust explosion 
prevention, sealed area explosion prevention, belt fire 
prevention, deep cover retreat mining safety, improving 
communications and tracking capabilities, refuge alternatives 
during disasters, and improving respiratory protective 
equipment.
    But, a critical success factor in moving research from the 
laboratory to the mines is the ability to attract 
commercialization of the new technology. Mining, as an 
industrial enterprise, is a small economic market. Without 
regulatory incentives, the future commercialization of a new 
technology is often difficult and uncertain.
    An example of a successful commercialization of new 
technologies is the personal dust monitor (PDM). In 2006, NIOSH 
published an influential document, entitled ``Laboratory and 
Field Performance of a Continuously Measuring Personal 
Respirable Dust Monitor.'' NIOSH showed the monitor to be mine 
worthy, accurate, and a reliable realtime monitor that can 
provide miners and management with a powerful tool to prevent 
the overexposure of miners to respirable coal dust. The PDM has 
the potential to be used both for compliance and respirable 
dust sampling, and as an engineering control tool.
    A vital step in getting the PDM into daily use to protect 
miners through commercialization, though, was the initiation of 
a Federal regulation making permissible NIOSH and MSHA 
certification of the PDM for use as a compliance sampler in 
underground mines.
    Another promising technology that has the potential to save 
miners' lives from coal dust explosions, in an era when finer 
and more explosive dusts are being generated by modern mining 
methods, is the coal dust explosability meter (CDM), which 
would provide the mining industry with a means to accurately 
assess the hazard of coal dust explosability in realtime. NIOSH 
just prepared for publication a report called ``Recommendations 
for a New Rock Dusting Standard to Prevent Coal Dust Explosions 
in Intake Airways.'' NIOSH recommends a new standard, requiring 
that the total incombustible dust content by 80 percent in the 
intake airways of bituminous coal mines. NIOSH has based its 
recommendation on, one, explosion temperature thermodynamic 
limit models for coal and rock dust mixtures; two, extensive in 
mine coal dust particle size surveys; and, three, multiple 
explosion experiments at the Lake Lynn Laboratory.
    NIOSH has been aggressively pursuing commercialization of 
the CDM. Attempts to commercialize the CDM suffer from a lack 
of sufficient interest to support its manufacture because of 
the small market problem. The recent tragic events at the Upper 
Big Branch mine, however, have renewed interest in this 
technology. NIOSH has found a manufacturer with broad 
experience in commercialization of field instruments, and 
expects that the CDM will be commercially available in 2011.
    The MINER Act also established requirements for postaction 
communications and tracking. In response, NIOSH established, 
with its domestic and international partners, a comprehensive 
strategy and research program to develop new and enhanced 
existing communications and tracking technologies for 
postaccident applications in underground mines, a strategy 
designed to deliver improved postaccident functionality within 
the MINER Act timeframe while facilitating ongoing improvements 
to these platforms. The private sector developed additional 
technologies in parallel with NIOSH's efforts.
    In 2006, virtually no MSHA approved communication systems 
that met the intent of the MINER Act were commercially 
available. Today, there are a suite of postaccident 
communications and tracking technologies commercially 
available.
    While none of these are perfect, these technologies, when 
used individually or in combination, have significantly 
improved postaccident functionality for mine workers.

                           PREPARED STATEMENT

    NIOSH has also made progress in the area of sealed area 
explosion prevention, through design practices and technology 
applications. For example, under the technology development 
mandate of the MINER Act, NIOSH developed and demonstrated a 
system to extract nitrogen gas from the mine atmosphere and 
inject it into a sealed area to render it inert or extinguish a 
fire. This compact system, designed for easy transport in coal 
mines, is now commercially available.
    NIOSH continues to work diligently to protect the safety 
and health of mine workers and thanks this subcommittee for 
their support.
    Thank you very much.
    [The statement follows:]
                   Prepared Statement of John Howard
                              introduction
    Good afternoon, Mr. Chairman and other distinguished members of the 
subcommittee. My name is John Howard, and I am the Director of the 
National Institute for Occupational Safety and Health (NIOSH), part of 
the Centers for Disease Control and Prevention, within the Department 
of Health and Human Services (HHS). I am accompanied by Dr. Jeffery 
Kohler, NIOSH Associate Director of Mine Safety and Health Research and 
Director of the Office of Mine Safety and Health Research (OMSHR), 
which was permanently established by the Mine Improvement and New 
Emergency Response (MINER) Act of 2006.
    The goal of NIOSH's OMSHR is the elimination of mining fatalities, 
injuries, and illnesses through research and prevention. Collaborations 
with its stakeholders, which encompass industry, labor, and Government, 
provide a knowledgeable and diverse foundation for formulating a 
relevant research portfolio that addresses the most pressing mine 
safety and health issues of our time. So, Mr. Chairman, you can imagine 
the anguish and frustration that OMSHR, its partners, and I experienced 
when the disheartening news of the Upper Big Branch Mine explosion 
broke on April 5. While the specific causes of this latest tragedy will 
not be known until the Mine Safety and Health Administration (MSHA) 
completes its investigation, this explosion already serves as a 
poignant reminder of the need to maintain a focus on the prevention of 
mine disasters through research and safety interventions.
    A review of mine disasters over the last decade, including those at 
the Sago mine, the Darby mine, and at Crandall Canyon, reveals that no 
two mine disasters are identical. With most mine disasters, a number of 
precipitating factors occur concurrently to create conditions to cause 
a calamity. Some of these factors are within human control even if 
others are not. To consider simultaneously all permutations of factors 
that may contribute to a mine disaster is impractical; however, we know 
that eliminating one of the factors may prevent or at least mitigate 
the effects of a catastrophe. For example, a mine explosion requires a 
fuel source (such as methane or coal dust), a minimum concentration of 
oxygen to support combustion, an explosive mixture of the fuel with 
air, and an ignition source. All contributing factors do not have to be 
eliminated to prevent an explosion. In fact, an explosion can be 
avoided if any single factor is removed. The key to preventing 
catastrophes is to identify and eliminate the controllable common 
thread through technology and engineering interventions.
    I will now present an overview of NIOSH's on-going research and 
accomplishments that primarily relate the mandates of the MINER Act and 
disaster prevention. Since I have begun to address the topic of mine 
catastrophes, I will start with an overview of our disaster prevention 
projects, then move on to disaster response.
                          disaster prevention
    Coal Dust Explosion Prevention.--NIOSH will soon complete an 
important report on the explosion hazard implications of finer dusts 
that modern mining methods generate. This report of investigation, 
called ``Recommendations for a New Rock Dusting Standard to Prevent 
Coal Dust Explosions in Intake Airways,'' recommends revision to the 
current minimum requirement of 65 percent for incombustible content in 
dusts found in intake airways. The report is in the final stages of 
review.
    NIOSH is aggressively pursuing commercialization of the Coal Dust 
Explosibility Meter (CDEM). The CDEM provides the mining industry with 
a means to assess accurately and in real time the hazard of coal mine 
dust explosibility. Recent mine disasters have renewed interest in this 
technology, and NIOSH has found a manufacturing partner with broad 
experience in the manufacture and marketing of field instruments. The 
CDEM will be commercially available next year.
    Sealed Area Explosion Prevention.--The 2006 explosions at the Sago 
and Darby mines were due to the existence of explosive atmospheres 
within sealed areas of underground coal mines. Preventing this 
condition from occurring is a priority under the technology development 
mandate of the MINER Act, so NIOSH developed and demonstrated a system 
to extract nitrogen gas from the mine atmosphere and inject it into a 
sealed area to render it inert or extinguish a fire. This compact 
system, designed for easy transport in coal mines, is now commercially 
available.
    Improving Coal Mine Seals.--In 2007, NIOSH released an influential 
Information Circular called ``Explosion Pressure Design Criteria for 
New Seals in U.S. Coal Mines,'' that established a scientific basis for 
upgrading the design requirements for seals in underground coal mines. 
Since that publication, NIOSH has engaged in further research, 
including cooperative research with the Naval Research Laboratories and 
the U.S. Army Corps of Engineers, to improve methods for evaluating 
seal designs. When completed, this research will provide a sound 
engineering foundation and enhanced tools to evaluate seal designs to 
ensure they will provide adequate protection to miners.
    Belt Fire Prevention.--As directed by section 11(A) of the MINER 
Act, NIOSH initiated research in response to the report, ``Technical 
Study Panel on the Utilization of Belt Air and the Composition and Fire 
Retardant Properties of Belt Materials in Underground Coal Mining.'' 
This research has included full-scale testing of belt materials to 
validate the Belt Evaluation Laboratory Test (BELT) as a means of 
evaluating the fire resistance of belt materials. Research is 
continuing to evaluate the efficacy of current standards for water-
based suppression systems as well as alternative systems used to 
control fires over the range of belt air velocities. The research is 
also investigating new approaches in early detection of belt fires and 
improvements to mine fire modeling software to assess the potential 
impact of a fire on escape routes. NIOSH is communicating results of 
this work directly to MSHA and to mining stakeholders through industry 
conferences and publications.
    Mine Atmospheric Monitoring.--Continuous monitoring of gas 
concentrations in sealed and active gob areas (mined out areas made up 
of caved in rock) would allow mine operators to identify changing 
conditions that indicate developing gas explosion or spontaneous 
combustion hazards. However, monitoring these areas with conventional 
electronic systems can introduce an ignition source to this potentially 
hazardous area of a mine. To address this problem, NIOSH procured a 
monitoring system, used in approximately 50 coal mines internationally, 
that continuously draws air samples from the mine through a network of 
tubing to a gas analyzer on the surface. NIOSH is currently 
demonstrating this ``tube bundle system'' at a longwall coal mine to 
serve multiple research goals including:
  --assessing combustible and toxic gas concentrations in real-time in 
        the active areas of the mine;
  --monitoring for developing spontaneous combustion hazards in the 
        active longwall gob to validate modeling software developed by 
        NIOSH; and
  --documenting the mixing of gasses in a mine gob after completion of 
        the longwall panel to improve ventilation design models.
    The tube bundle system also has the potential to remain in 
operation during response to certain mine emergency events without 
increased risk to rescuers.
    Ground Control Study of Deep Cover Retreat Mining.--NIOSH 
conducted, in collaboration with the University of Utah and West 
Virginia University, a study of the recovery of coal pillars through 
retreat room and pillar mining practices in underground coal mines at 
depths greater than 1,500 feet. This study was of special interest 
following the tragedy that occurred at the Crandall Canyon Mine. NIOSH 
has investigated the safety implications of retreat room and pillar 
mining practices, with emphasis on the impact of full or partial pillar 
extraction mining and has developed recommendations and research 
requirements for addressing the safety issues of ground control under 
these mining conditions. At NIOSH's request, MSHA is reviewing this 
study, and NISOH expects that the study will soon be completed.
                           disaster response
    Contracts and Grants Program.--As mandated in section 6 of the 
MINER Act, NIOSH established a contracts and grants program that funds 
the development and adaptation of safety technologies for mining 
applications. Under this program, NIOSH has funded 29 proposals. This 
year NIOSH received an additional 38 proposals, which are undergoing 
technical review. Awards for the most meritorious proposals are 
expected this fiscal year. In addition, NIOSH established a contracts 
program for mine ventilation research and capacity building to expand 
the number of trained professionals which work in this area. The 
contracts are designed to support research, exploratory development, 
testing, or evaluations of innovations and new technologies to improve 
mine health and/or safety in the area of mine ventilation. NIOSH has 
awarded seven 5-year contracts for ventilation research to universities 
throughout the United States.
    In addition, NIOSH established an Inter-Agency Working Group to 
provide a formal means for Federal Government agencies to share 
technology that can be applied to mining safety. The working group 
includes representatives from NIOSH, MSHA, the National Aeronautics and 
Space Administration (NASA), the Naval Research Lab, the U.S. Army 
Engineering and Research Center, Sandia National Laboratory, and a 
number of additional research labs or offices within the Departments of 
Defense, Energy, and Homeland Security.
    The NIOSH Contracts and Grants Program can be divided into three 
primary areas as defined by the MINER Act: communications and tracking, 
refuge alternatives, and self-contained self-rescuers.
    Communications and Tracking.--The MINER Act established 
requirements for postaccident communications and tracking and charged 
NIOSH with developing and improving mine safety technologies. 
Furthermore, each coal mine was required to submit an emergency 
response plan, which incorporates postaccident communications and 
tracking, to MSHA within 3 years of the enactment date. In 2006, 
virtually no MSHA-approved communications and tracking systems that met 
the intent of the MINER Act were commercially available.
    In response NIOSH established with its domestic and international 
partners a comprehensive strategy and research program to develop new, 
and enhance existing, communications and tracking technologies for 
postaccident applications in underground coal mines. This strategy is 
designed to deliver improved postaccident functionality within the 
MINER Act timeframe, while facilitating continuous improvements to 
these platforms. The private sector developed additional technologies 
in parallel with NIOSH's efforts.
    NIOSH categorizes its communications research into two major 
areas--Primary Systems and Secondary Systems. Primary Systems operate 
in conventional radio bands, use small antennas that permit wearable 
transceivers with long battery life, and provide sufficient throughput 
for routine, daily mine communications. Secondary Systems operate in 
nonconventional frequency bands, use large antennas that are best 
suited for fixed or portable applications, and do not have sufficient 
throughput for everyday mine communications. Thus, Secondary Systems 
are primarily intended for emergency use.
    Primary Systems include leaky-feeder systems, which use perforated 
coaxial cables to carry radio signals, and node-based communications, 
which employ a network of nodes using a digital format. Becker/Pillar 
and Innovative Wireless/L3, respectively, developed the systems under 
NIOSH contracts. The node-based system serves a dual purpose of 
communications and tracking. Both leaky-feeder and node-based systems 
have been installed, tested, and demonstrated in underground mines and 
are now MSHA-approved and commercially available.
    Primary Systems require an in-mine infrastructure that is 
inherently vulnerable, so their survival after a catastrophic event 
depends on redundant communications paths. In nonproduction areas of a 
mine, direct paths to the surface are accessible only via shafts and 
boreholes. These alternative paths are not readily available within 
working sections; therefore, in-mine redundancy of communications 
pathways, although less effective, must be used.
    Secondary Systems include medium-frequency systems, which use the 
metallic structures within the mine to transmit signal, and through-
the-earth systems, which exploit wireless options. These systems 
require minimal infrastructure and thus have better chances for 
survival after an emergency event. A NIOSH contract awarded to Kutta/
U.S. Army produced a medium-frequency system, while contracts awarded 
to Lockheed Martin, E-Spectrum, Alertek, Teledyne Brown Engineering, 
Stolar, and Ultra Electronics are directed toward the development of 
through-the-earth systems.
    A Secondary System cannot support routine mine communications 
because of limited throughput. Though it does not provide wide-area 
coverage, it provides an alternative communications path out of the 
mine (i.e., it substitutes for a borehole in a working section). 
Ideally, a Secondary System provides a backup, emergency channel for a 
Primary Communications System.
    The medium-frequency system has been successfully tested and is in 
the MSHA approval process. Through-the-earth systems are still in the 
development stage. Although successful preliminary testing has 
occurred, the principal challenge is designing a system that can 
support two-way communications at power levels that are low enough to 
meet MSHA approval requirements. Despite the technological obstacles, 
NIOSH will continue to support advances in these critical technology 
areas.
    NIOSH is planning to perform long-term, targeted research to 
address information gaps in communications and tracking. Identified gap 
areas include the safety issues of distributed and isolated batteries 
in communication and tracking systems, performance measurement and 
estimation techniques, compatibility considerations, and 
electromagnetic signal propagation in mining environments.
    Refuge Alternatives.--In response to MINER Act mandates, NIOSH has 
successfully conducted extensive research into the utility, 
practicality, survivability, and cost of various refuge alternatives in 
an underground coal environment. This research, through both in-house 
and contract efforts, included field tests of approved and commercially 
available refuge chambers. Sharing information is an important part of 
the response to the MINER Act; thus a NIOSH-MSHA Working Group was 
established to facilitate the flow of information and to enhance NIOSH 
research efforts. NIOSH prepared a report detailing the results of this 
research and providing specific recommendations that could inform the 
regulatory process on refuge alternatives. In December 2007 NIOSH 
delivered the report to the Secretary of Labor, the Secretary of HHS, 
the Senate Committee on Health, Education, Labor, and Pensions, and the 
House Committee on Education and the Workforce.
    NIOSH has also addressed the training issues associated with refuge 
alternatives and has developed individual training products on topics 
such as the decisionmaking process of when to use a refuge chamber, 
operational guidelines for instructional materials, and how to use a 
refuge chamber. Significant work is needed in the area of expectations 
training, and NIOSH has a first module nearly completed in this area.
    State and Federal efforts resulted in the introduction of refuge 
chambers throughout the underground coal industry. However, 
alternatives to chambers such as an in-place shelter were left largely 
untouched and a range of chamber operational questions remain unknown. 
As a result, mineworker confidence in these chambers is low, and the 
value of this potentially lifesaving technology remains undetermined.
    NIOSH has evaluated international best practices in self-escape and 
mine rescue operations to identify opportunities to improve U.S. mine 
preparedness. NIOSH researchers identified the value of introducing 
improved realism in mine rescue training and the importance of 
behavioral health issues in preparing miners and rescuers for response 
to an emergency. Researchers identified the need to improve training 
facilities and to use more standardized training and procedures in 
order to improve the ability of teams from different mines to work 
together during emergencies. NIOSH has communicated these findings at a 
number of industry events and worked directly with mine rescue teams to 
initiate change.
    Self-contained Self-rescuers.--The NIOSH research and evaluation 
program for self-contained self-rescuers (SCSRs) addresses new 
technology, standards for certification, training, and testing of mine-
deployed SCSRs.
    New Escape Respirator Technology.--NIOSH awarded a contract to 
Technical Products, Inc. (TPI) in February 2007 to design and fabricate 
an oxygen-supplying SCSR with ``piggy-back'' technology to allow a 
trapped or escaping miner to replenish his oxygen supply while 
underground. The new SCSR design includes a docking port mechanism that 
allows the user to plug in additional oxygen units without opening the 
breathing circuit to the potentially poisonous atmosphere. The docking 
port requires that a second oxygen unit be plugged in before the valve 
can be repositioned to the alternate port. In addition to this docking 
capability, the escape respirator employs a new chemical technology for 
removing carbon dioxide from the exhaled breath. This new chemical 
technology will facilitate lower breathing effort by the user and be 
more capable of withstanding the rigors (shock, vibration, and rough 
handling) encountered in daily use. Other innovative materials and 
design features make the new escape respirator easier to manufacture 
and more comfortable to wear and use.
    Under the same contract, TPI also developed a new technology filter 
self-rescue respirator for use in carbon monoxide atmospheres. The new 
filter self-rescue technology uses a catalytic process to remove carbon 
monoxide, resulting in longer protection from a smaller filter than 
current filter self-rescue technology. The new filter self-rescue 
respirator can be docked with the escape respirator to provide 
protection in atmospheres where the only hazard is carbon monoxide.
    The designer and manufacturer of the new respirator technologies is 
expected to apply for NIOSH certification. In addition to the contract 
work on the docking escape respirator system, NIOSH has been working to 
increase awareness of other escape respirator technologies commercially 
available and used in other countries.
    Standards for Certification Evaluation and Testing.--On December 
10, 2008, NIOSH published in the Federal Register a proposed regulation 
for certification, evaluation, and testing of closed-circuit escape 
respirators. The proposed regulation would replace current 
certification evaluation and test requirements identified in 42 Code of 
Federal Regulations, part 84. The proposed regulation would enable 
state-of-the-art technology for both test and performance of escape 
respirators. In 2009, NIOSH held two public meetings to discuss the 
proposed regulation and opened a docket to enable interested parties to 
provide comment. NIOSH is currently reviewing the comments submitted to 
the docket and expects to submit a final rule this fiscal year.
    User Training for SCSRs.--NIOSH conducted a research project to 
evaluate the effectiveness of SCSR user training programs developed by 
NIOSH in collaboration with MSHA. In 2009, NIOSH worked with 11 mines 
and 2 mine training centers to conduct the training effectiveness 
evaluation on 461 miners. NIOSH and MSHA are now analyzing the training 
effectiveness evaluation and expect to complete the analysis this year.
    Testing of SCSRs.--In 2007, NIOSH redesigned the Long-Term Field 
Evaluation (LTFE) Program for SCSRs to change the focus from a research 
program to a respirator certification audit program. The LTFE Program 
redesign includes a valid sampling strategy to select SCSRs from mines 
for testing, uses defined evaluation performance criteria with a 
documented test protocol, and incorporates a procedure for conducting 
follow-through actions based on evaluation results. The redesigned 
protocol was peer-reviewed and discussed at two public meetings prior 
to implementation. NIOSH also established an open comment docket for 
stakeholder comments.
    In May 2009 NIOSH launched the redesigned LTFE, starting with the 
collection of SCSRs from mines following a random sampling plan using 
the MSHA SCSR inventory. As of March 2010, NIOSH had collected 259 
SCSRs from 153 mines, and had tested 173 SCSRs following the redesigned 
protocol. Collected and tested SCSRs represent respirators from each of 
the four models currently used in mining operations. Following the new 
protocol and performance criteria, one respirator model exhibited the 
same test failure on two respirators. The failures are under 
investigation to identify the cause and to determine corrective 
actions.
    Although this hearing is focusing on disaster prevention, everyday 
mine workers face a risk of injury or occupational illness. Advances in 
engineering and training interventions, developed in partnership with 
labor, industry, and Government, have made significant reductions to 
nonfatal and fatal traumatic injuries. Yet more still needs to be done 
to approach a zero harm goal. NIOSH has a balanced research portfolio 
to address injuries in areas including ground control, electrical 
safety, and materials handling. In addition to developing solutions to 
specific problems, NIOSH is examining the advantages and limitations of 
additional approaches such as improving the safety culture and 
employing risk assessment methods.
    Occupational exposures to noise and respirable dusts can result in 
unacceptable health outcomes for workers. For example, more than 70,000 
coal miners have died with black lung disease over the past 40 years. 
NIOSH has a major research focus on the development of engineering 
controls to reduce exposures to dusts and noise, and has successfully 
developed and introduced many of these into the mines. Perhaps the most 
significant event, however, is the successful implementation of the 
personal dust monitor--a technology that will, for the first time ever, 
allow mineworkers to know their exposure to coal dust in real time, 
then enabling operators to make changes to the engineering controls 
that can reduce miners' exposure. I would like to conclude by 
summarizing our work on this life-saving technology.
    Personal Dust Monitor (PDM).--In 2006, NIOSH published an 
influential document entitled, ``Laboratory and Field Performance of a 
Continuously Measuring Personal Respirable Dust Monitor.'' This 
document proves the personal dust monitor (PDM) to be a mine-worthy, 
accurate, and reliable real-time dust monitor that can provide miners 
and mine management with a powerful tool to prevent the overexposure of 
underground coal miners to respirable dust. The dust monitor is built 
into the miner's cap lamp system and provides real-time dust exposure 
data. The PDM has the potential to be used for compliance respirable 
dust sampling and as an engineering control tool. Significant progress 
has been made on advancing PDM technology into underground coal mines 
in the United States. Key developments are as follows:
  --NIOSH and MSHA jointly developed 30 CFR part 74--Certification of 
        Continuous Personal Dust Monitors. This regulation enables 
        NIOSH and MSHA to certify PDMs for use as a compliance sampler 
        in underground coal mines. The effective date of this 
        regulation is June 7, 2010. NIOSH and MSHA expect to receive 
        soon a request from the manufacturer to certify the PDM for 
        U.S. mine compliance sampling.
  --MSHA is modifying how coal mine dust is sampled under 30 CFR parts 
        70, 71, and 90, covering, respectively, dust sampling 
        procedures, dust control plans, and special sampling for miners 
        with evidence of black lung. NIOSH has been providing 
        significant technical assistance on the appropriate application 
        of the new PDM technology in underground coal mines.
  --The Personal Dust Monitor Management System software package was 
        recently developed and tested. A June 2010 release is 
        anticipated. This software collects, secures, and stores PDM 
        data in an easily accessible data base and can produce reports 
        in a variety of formats based on the needs of the end user.
    In July 2009, the PDM commercial manufacturer, Thermo Scientific, 
began commercial sale of the PDM. From an initial production run of 122 
units, 81 were sold to mining companies and are currently in use. 
Thermo Scientific has received orders for an additional 100 units from 
mining companies and is building the units. NIOSH researchers are also 
tracking the performance of these units around the United States.
                               conclusion
    In closing, NIOSH continues to work diligently to protect the 
safety and health of mine workers. The most recent mine disaster 
underscores the relevance of past NIOSH work and continued need for 
further safety and health research. NIOSH has made significant 
improvements in the areas of communication and tracking, oxygen supply, 
and refuge alternatives. Moreover, NIOSH's safety and health research 
program is addressing the critical areas identified by our customers 
and stakeholders, and through research, development, demonstration, and 
diffusion activities, NIOSH is enabling a shift to a prospective harm 
reduction culture in the mining industry. I appreciate the opportunity 
to present NIOSH's work to you and thank you for your continued 
support. I am pleased to answer any questions you may have.

    Senator Harkin. Thank you, Dr. Howard.
    Now we turn to Ms. Jordan.
STATEMENT OF MARY LU JORDAN, CHAIRMAN, FEDERAL MINE 
            SAFETY AND HEALTH REVIEW COMMISSION, 
            WASHINGTON, DC
    Ms. Jordan. Thank you for the opportunity to testify on the 
backlog currently facing the FMSHRC.
    The need to eliminate this backlog has taken on even more 
crucial significance since the tragic explosion at the Upper 
Big Branch mine on April 5. All of us at the FMSHRC are 
profoundly saddened by the deaths of the miners there, and our 
thoughts are with their families, friends, and the surviving 
miners.
    The FMSHRC currently has more than 16,000 pending cases at 
the judge level. This is a marked departure from our historical 
caseload figures. During the 4 years from fiscal year 2002 
through 2005, the annual caseload ranged from approximately 
1,300 to 1,500 cases. In comparison, during the subsequent 4 
years, the caseload climbed from 2,700 to more than 14,000.
    Due to the backlog, the age of the cases that the FMSHRC 
decides has increased. For example, in fiscal year 2008, 72 
percent of the cases were decided by administrative law judges 
within 1 year, 23 percent were decided within 1 to 2 years, and 
5 percent of the cases were more than 2 years old by the time 
they were issued.
    So far, in fiscal year 2010, cases under 1 year of age 
constituted only 20 percent of the dispositions, 62 percent 
were from 1 to 2 years old, and 13 percent of the decided cases 
were more than 2 years old. We expect this lengthening trend to 
continue as long as an extensive case backlog remains.
    The current backlog has significant ramifications. Several 
important enforcement provisions of the MINE Act depend upon 
the determination of an operator's history of violations. That 
history is based on violations that are final, which occurs 
only at the completion of the FMSHRC's review process. Thus, if 
case decisions are delayed, MSHA's ability to effectively 
enforce the Act is inhibited.
    We have, pursuant to our $10.3 million budget appropriation 
for fiscal year 2010, added four new administrative law judges 
to our previous roster of 10. We also added four new law clerks 
to assist the judges. If funding remains just at this 2010 
level, we predict a case backlog of approximately 18,200 cases 
by the end of the fiscal year. The President's 2011 budget 
request of $13.1 million would allow us to add 4 more judges, 
for a total of 18, and would permit us to stem the growth in 
the backlog.
    As you know, the President has committed to reducing the 
backlog. There are different ways to meet this goal. For 
example, immediately increasing the number of administrative 
law judges to 26 would cost roughly an additional $5.3 million 
above the fiscal year 2010 appropriation and the President's 
2011 budget. At this level, we estimate that, assuming our 
current case intake level remains constant, we could reduce the 
number of FMSHRC cases--number of cases in the FMSHRC's 
backlog--to less than 9,200 within 3 years.
    If supplemental funding is provided, we recognize that we 
would need to hire new judges quickly. Yet, at the same time, 
if and when the backlog is reduced to an acceptable level, we 
may not need as many judges. We have identified two methods to 
achieve these goals. First, we have formally requested the 
Office of Personnel Management to ask other agencies to 
temporarily loan administrative law judges to us. Second, we 
plan to recruit senior administrative law judges, judges who 
have retired from Federal service, to work for the FMSHRC for a 
limited period of time.
    In addition to increased staffing, we're examining our 
entire case adjudication system to determine how we can 
streamline procedures. On April 27, the FMSHRC published an 
amendment to its procedural rules. It requires the parties to 
submit a draft settlement order with their motion, and requires 
almost all of these submissions to be filed electronically.
    Today the Federal Register published our proposed rule 
initiating the simplified procedures process, similar to the 
one in effect at the Occupational Safety and Health Review 
Commission. Parties whose cases are placed in this track would 
be subject to mandatory exchange of information and early 
prehearing conferences.

                           PREPARED STATEMENT

    Finally, it's important to note that both the significant 
increase in the numbers of FMSHRC judges, as well as some of 
the changes we are proposing in our administrative and 
rulemaking areas, will impact MSHA and the SOL. We are 
committed to working cooperatively with them to ensure that 
adjudication under the MINE Act may once again proceed swiftly.
    Over the years, this subcommittee has played a key role in 
ensuring that we receive sufficient funds to protect miner 
safety. I look forward to working with you to identify the 
resources needed to address the backlog. And thank you, once 
again, for this opportunity to testify on the issue.
    [The statement follows:]
                  Prepared Statement of Mary Lu Jordan
    Chairman Harkin, Senator Cochran, and members of the subcommittee: 
Thank you for the opportunity to testify on the case backlog currently 
facing the Federal Mine Safety and Health Review Commission (FMSHRC). 
My name is Mary Lu Jordan, and I am Chairman of the FMSHRC. On behalf 
of the FMSHRC, I want to thank the subcommittee for its interest in 
identifying the resources needed to ensure the speedy adjudication of 
mine safety cases by eliminating the FMSHRC's current case backlog.
    Of course the need to eliminate the backlog has taken on even more 
crucial significance since the tragic explosion at the Upper Big Branch 
mine on April 5, 2010. All of us at the FMSHRC are profoundly saddened 
by the deaths of the miners there, and our thoughts are with their 
families, friends, and the surviving miners.
    FMSHRC is an independent adjudicatory agency that provides 
administrative trial and appellate review of legal disputes arising 
under the Federal Mine Safety and Health Act of 1977 (Mine Act). The 
FMSHRC's administrative law judges decide cases at the trial level. The 
five-member FMSHRCprovides administrative appellate review. Currently, 
we have a full complement of commissioners, as our fifth member, 
Patrick Nakamura, was sworn in at the beginning of this month.
    The majority of cases that come before the FMSHRC involve civil 
penalties proposed by the Department of Labor's Mine Safety and Health 
Administration (MSHA) to be assessed against mine operators. The 
FMSHRC's administrative law judges are responsible for deciding whether 
the alleged violations of the Mine Act or a mandatory safety or health 
standard or regulation issued by MSHA occurred, as well as the 
appropriateness of the proposed penalties. To determine the penalty, 
the judges must make findings on a number of issues, including the 
seriousness of the violation and the negligence of the operator. Other 
types of cases heard by the FMSHRC's administrative law judges include 
contests of MSHA orders to close a mine for health or safety reasons, 
miners' charges of discrimination based on their complaints regarding 
health or safety, and miners' requests for compensation after being 
idled by a mine closure order.
    Since the day I became Chairman of the FMSHRC, again, last August, 
I have been working with my staff to address our case backlog. As of 
April 30 of this year, we had a backlog of 16,580 cases. (As I 
mentioned previously, most of these are penalty contests, although 
approximately 20 percent of them are contests of underlying citations, 
which typically are stayed and then consolidated with the related 
penalty cases). In that backlog of pending cases are 9,650 cases (58 
percent) under 1 year of age, 5,346 cases (32 percent) that are 1-2 
years of age, and 1,584 cases (nearly 10 percent) older 2 years of age. 
This significant case backlog is a marked departure from our historical 
caseload figures.
    For example, during the 4 years from fiscal year 2002 through 
fiscal year 2005, the annual caseload ranged from approximately 1,300 
to 1,500 cases. In comparison, during the subsequent 4 years, from 
fiscal year 2006 through fiscal year 2009, the caseload climbed from 
approximately 2,700 to more than 14,000 cases.
    A comparison of new case filings during these same two time periods 
is also very instructive. From fiscal year 2002 to fiscal year 2005, 
the annual number of cases filed showed only a minimal increase, going 
from about 2,100 to 2,400 new cases per year. The figures after that 
paint a completely different picture, with case filings going from 
3,300 new cases in fiscal year 2006 up to approximately 9,200 new cases 
in fiscal year 2009.
    Due to the backlog, the age of cases that the FMSHRC decides has 
increased. For example, in fiscal year 2008, 72 percent of the cases 
were decided by administrative law judges within 1 year, 23 percent 
were decided within 1-2 years, and 5 percent of the cases were more 
than 2 years old by the time they were issued. In fiscal year 2010 (as 
of April 30), cases under 1 year of age constituted 25 percent of 
decided Commission cases, 62 percent were from 1-2 years old, and 13 
percent of decided cases were older than 2 years. We expect this 
lengthening trend to continue as long as an extensive case backlog 
remains. The attached graph shows the dramatic increase in the average 
number of days it took our judges to dispose of cases between fiscal 
year 2001 and the first 7 months of fiscal year 2010.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Moreover, our judges' dockets have increased dramatically. We 
assigned more cases, which moved the bulk of the backlogged cases to 
our judges' desks. From fiscal year 2004 to fiscal year 2008, each 
judge's docket averaged 176 cases. That number jumped to 366 cases in 
fiscal year 2009. As of April 30, 2010 (before our new judges were 
hired), the number of cases assigned to each judge was, on average, 
601.
    The FMSHRC's current case backlog has significant ramifications. 
When Congress passed the Mine Act, it expressed concern that the 
penalty provisions of the Act cannot operate as an effective deterrent 
if there is an unduly long period of time between the violation and the 
payment of a penalty. The legislative history of the Mine Act 
emphasizes that ``. . . [t]o be effective and to induce compliance, 
civil penalties, once proposed, must be assessed and collected with 
reasonable promptness and efficiency.'' S. Rep. No. 95-181, at 43 
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 
Legislative History of the Federal Mine Safety and Health Act of 1977, 
at 631 (1978).
    Furthermore, an issue frequently raised since the explosion in West 
Virginia is that several important enforcement provisions of the Mine 
Act depend upon a determination of an operator's history of violations. 
Penalties are calculated based, in part, on the operator's history of 
violations. Moreover, MSHA's ability to issue a withdrawal order 
because of a pattern of violations under section 105(e) of the Mine Act 
is not applicable under MSHA's regulations, 30 CFR 104.3(b), until a 
violation becomes ``final'' which occurs only at the completion of the 
FMSHRC's review process. Thus, if case decisions are delayed, MSHA's 
ability to effectively enforce the act is inhibited.
    In addition, Congress intended that the case processing mechanism 
operate efficiently so that operators who dispute MSHA's interpretation 
of a standard may obtain a speedy resolution. With a large and growing 
backlog of cases at the FMSHRC, operators often do not know in a timely 
manner whether their practices comply with mandatory safety or health 
standards or violate them.
    Today, I want to update you on steps we have taken to reduce this 
backlog, and on the work that remains to be done. Mindful of the recent 
mine disaster, we are determined to speed up our case processing to 
afford prompt, effective adjudication to the parties who appear before 
us.
    In terms of our actions to date, we have, pursuant to our $10.358 
million budget appropriation for fiscal year 2010, added 4 new 
administrative law judges to our previous roster of 10 judges. Three 
have already joined the FMSHRC and the fourth will arrive next week. 
Under that appropriation, we also added four new law clerks to our 
current staff of five clerks to assist our judges.
    If our funding remains at this level with this staffing (14 judges, 
9 law clerks, and 9 legal assistants) for the rest of fiscal year 2010, 
we project a case backlog of approximately 18,200 cases by the end of 
this fiscal year. Thus, this level of funding would permit the backlog 
to grow. However, the President's 2011 budget request of $13.105 
million, representing a 27 percent increase over our fiscal year 2010 
appropriation, would stem the growth in the backlog, once the new 
judges are trained and gain experience under the Mine Act. We would be 
able to add four more judges, which would bring our total to 18. We 
also could hire nine additional law clerks so that each judge would 
have the assistance of a law clerk, and each judge would share an 
administrative assistant with another judge.
    As you know, the President has committed to reducing the backlog. 
There are different ways to meet this goal. For example, immediately 
increasing the number of administrative law judges to 26 would cost 
roughly an additional $5.3 million above the fiscal year 2010 
appropriation and the President's 2011 budget. At this level, we 
estimate that, assuming our current case intake levels remain constant, 
we could reduce the number of cases in the FMSHRC's backlog to less 
than 9,200 within 3 years. Additionally, policy and process changes 
under consideration by the Commission--some of which I will discuss 
later--could allow us to more quickly reduce the backlog and case 
processing time.
    If supplemental funding is provided, we recognize that we would 
need to hire new judges quickly. Yet at the same time, if and when the 
backlog is reduced to an acceptable level, we may not need as many 
judges. We have identified two methods to achieve these goals: first, 
we have formally requested the Office of Personnel Management to ask 
other agencies to temporarily loan administrative law judges to us. As 
of right now, the Office of Personnel Management has approved three 
judges who could work for us on a temporary and intermittent basis. 
Second, we would recruit senior administrative law judges--judges who 
have retired from Federal service--to work for the FMSHRC for a limited 
period of time.
    In addition, we are mindful of the training needs of new judges, 
particularly those with no Mine Act experience. To that end, we have 
initiated a training program in which our senior judges assist the 
newly hired judges in learning about FMSHRC case adjudication and 
procedures. Also, by expanding the number of law clerks, we will 
provide additional support for our judges.
    But more resources are only part of the answer. In addition to 
increased staffing, we are continuing to examine our entire case 
adjudication system to determine how we can streamline procedures via 
administrative and rulemaking changes.
    For instance, because more than 90 percent of FMSHRC cases are 
ultimately settled, we have looked at ways to make that process more 
efficient, as much of the FMSHRC's resources are used to process 
settlement motions and issue orders approving settlement. Until 
recently, the parties filed a motion to approve settlement, but the 
FMSHRC's judges drafted the settlement order in each settled case. On 
April 27, 2010, the FMSHRC published an amendment to its procedural 
rules requiring the parties to submit a draft settlement order with 
their motion to approve settlement. 75 Fed. Reg. 21987. Furthermore, 
the rule requires almost all of these submissions to be filed 
electronically. These changes should reduce the resources expended by 
the FMSHRC judges in resolving settlement motions.
    We are also initiating a ``simplified procedures'' process similar 
to the one in effect at the Occupational Safety and Health Review 
Commission. The rules for cases placed on this track, which would be 
the simpler cases the FMSHRC receives, would provide for mandatory 
early disclosure of information and documents by the parties, and early 
prehearing conferences with a judge. Additionally, discovery and post-
trial briefs would be severely limited, and interlocutory review is 
abolished. We submitted this proposed rule to the Federal Register on 
May 11, 2010 for notice and comment.
    In fiscal year 2008, the FMSHRC instituted a new electronic case 
tracking system, which allows us to more efficiently track the various 
stages of each case that we receive. Another ongoing project involves 
the electronic filing of cases and case documents. The FMSHRC is 
currently reviewing requirements for the electronic filing process to 
determine the best approach for implementing such a system. One of our 
commissioners is currently leading the project team working on this 
endeavor. The team's initial work has been to visit and survey other 
adjudicative agencies which have electronic filing systems in place in 
order to gather information about how long it would take to institute 
such a system and the costs involved.
    Finally, it is important to note that both a significant increase 
in the number of FMSHRC judges (with the concomitant increase in the 
number of cases decided) and some of the changes we are proposing in 
our administrative and rulemaking arenas will impact MSHA and the 
Office of the Solicitor. We are committed to working cooperatively with 
them to ensure that adjudication under the Mine Act may, once again, 
proceed swiftly.
    We will continue to explore modifications to our procedural rules 
and case management procedures that might enable cases to move more 
quickly through the FMSHRC. We are committed to examining any and all 
ideas that can assist in adjudicating cases more rapidly.
    Over the years this subcommittee has played a key role in ensuring 
that we receive sufficient funds to protect miner safety. I look 
forward to working with you to remedy the problem of our case backlog 
and in identifying the resources needed to address it and thank you 
once again for this opportunity to testify on this issue.

    Senator Harkin. Thank you very much, Ms. Jordan.
    Well, I note that the first bells have rung for the vote. I 
will wait until the second set well, a little bit before I 
recess.
    I did want to, thank you all for your testimonies and for 
all of the good work that you all do in your various 
capacities.
    But, I want to get to the heart of something here, Mr. Main 
and Ms. Smith. It just seems to me, from all I have read and 
the info that our committee's looked at, that, under the 
current system, there seems to be every incentive for an 
operator to challenge just about every citation issued. They 
can take advantage of the long delays, put off paying any fines 
well into the future. Often these fines are substantially 
reduced, as a result of the contest process, even when the 
violations are fully supported by the evidence.
    So, what can we do? What would you suggest to this 
subcommittee that we have to do, legislatively? Now, we can put 
additional money into hiring more judges, but I'm not certain 
that's going to do the job. They're just going to have more 
cases filed. I have two questions.
    One question, Mr. Main, for you. We saw the increase in the 
number of citations in the last few years, and the backlog. Why 
is that happening? Why are we getting more and more citations? 
I thought mines were getting safer. I thought we had new 
technologies. And yet, it seems we're getting more violations, 
more citations.
    And, Ms. Smith, if you could follow up on that, what should 
we do here to break that trend, rather than just hiring more 
judges? Is there something, legislatively, that we need to do?
    So, Mr. Main, why this huge increase in citations?
    Mr. Main. Thank you, Mr. Chairman.
    When I became the Assistant Secretary in October, that was 
a question that I raised, myself, and started looking into the 
history of the application of the MINE Act. And if you look at 
the progress of enforcement following the new MINER Act and 
other regulations and other activity that took place, which was 
the funding of additional inspectors that increased, I think, 
increases by about 20 percent of the number of inspectors on 
the ground, I think that had some impact with the additional 
inspections that took place.
    But, I also was really bothered by the fact that, you know, 
there was an increase of violations being cited. And I took a 
look at the a benchmark, to try to figure out why, because I 
heard the concerns about consistency and, you know, the new 
inspections and or new inspectors. I took a look at the 
statistics to see, are we citing actual violations? And what I 
found was that, on an average in 2008, 2009, it's about 175,000 
violations were issued to the mining industry. And less than 
one half of 1 percent, in the last year I looked at, of the 
violations that were issued were vacated, which is almost 
nothing. So, that meant that, basically, at least what had been 
through that process, those violations were violations.
    And I think, before we get into the type of violations, we 
have to stop there and say, ``We've got a problem here. And 
what we need to do is have the mining industry take ownership 
of these mines, beef up their safety departments, get in there 
and start inspecting these mines and correcting these 
conditions.''
    And if you fast forward to the Upper Big Branch mine, with 
the number of violations that we were finding in the Upper Big 
Branch mine last year, I think that was the solution to the 
problem was for the mine operator to hire up their safety staff 
and get in there and get these violations cleaned up.
    So, I'm bothered by the number, and I think the number's 
pretty solid.
    Senator Harkin. Before I turn to you, Ms. Smith, then, 
obviously, there are some mines that are very safe?
    Mr. Main. Yes.
    Senator Harkin. Hardly ever get violations, hardly ever 
have any accidents. Well, I hate to get in the position of 
saying, ``A coal mine is a coal mine is coal mine.'' Obviously, 
they differ, in terms of shaft sizes and depths and horizontal 
runs and a lot of different factors that go into that. But, you 
would think that we would have some standards based upon the 
success of certain mines, and make that applicable to all the 
mines.
    Mr. Main. I believe that mines that have a better safety 
management program have a better safety culture, have a better 
safety record. And believe that mines that lack those, don't. 
If we look at Upper Big Branch last year we find that it had 48 
unwarrantable failure orders issued--the most in the country. 
There are mines that operated last year with no unwarrantable 
failure violations issued. So, I think that you have to 
question the safety management programs that are in some of 
these mines.
    Senator Harkin. Okay. So, Ms. Smith, what should we be 
doing, what can we do?
    Ms. Smith. Well, Senator, I think that the answer to your 
question is a combination of administrative, regulatory, and 
legislative fixes. And on the legislative side, what we have to 
do is, basically, remove the penalties, I mean the incentives, 
to contest the penalties and the citations.
    One of the things that we would propose is prejudgment 
interest, because some operators will contest because they want 
the time value of money, and it delays the payment of the 
money; we need to reduce that. Some operators will contest 
because it delays the final order.
    And the history of a mine operator's citations is relevant 
to a number of things. It's relevant to the future penalties, 
because that's one of the things that go into the penalties. 
It's also relevant to pattern of violations. So, we have to 
look at the final order issue and see if we can take away that 
incentive.
    So, I think, ultimately, it's taking away the incentives to 
contest that will help reduce it, and those are two legislative 
things.
    But, again, they have to be done along with regulatory 
fixes, along with administrative fixes. There is just no silver 
bullet to fix this backlog problem.
    Senator Harkin. Well, we probably thought, when we passed 
the MINER Act, that we had taken care of a lot of this stuff. 
And now it just keeps happening, and even worse.
    Ms. Smith. I think that, you know, this is something about 
the law of unintended consequences. We're now going to get a 
second chance to look at that and try to fix that.
    Senator Harkin. Well, I can guarantee you, we are going to 
take a look at it. And we are going to do something to fix it. 
We just need to know, from the experts, just what course of 
action you think we ought to take.
    Now, I see we're on the second bell, so--Dr. Howard, Ms. 
Jordan--I'm going to recess the subcommittee now, and go over 
and vote. And I will return, hopefully within the next 10 to 15 
minutes.
    We'll stand in recess for just a few minutes.
    The subcommittee will resume its sitting.
    We have been joined by the individual that I have admired 
so much for his leadership in so many areas, especially this 
Appropriations Committee, and his leadership in fighting so 
hard for our miners in this country. I can say this without any 
hesitation whatsoever. No one has done more for miners in this 
country than Senator Robert C. Byrd, of West Virginia. No one. 
And it's just an honor to have him here today, because I know 
how deeply Senator Byrd cares about his people in West 
Virginia, and how he cares about miners everywhere. I've often 
said that I have such a great affinity for him because we both 
have coal miner's blood in our veins, and we care very deeply 
about it.
    And so, it's just a great honor to have you here, Senator 
Byrd. And I will yield to you for whatever statement and 
questions you might have for this panel.

                  STATEMENT OF SENATOR ROBERT C. BYRD

    Senator Byrd. Thank you, Mr. Chairman.
    I very much appreciate your holding this hearing. You and 
your staff, Senator, have been very gracious in accommodating 
my request for supplemental funding and for this oversight 
hearing in the wake of the terrible tragedy that took the lives 
of 29 coal miners in the coal fields of southern West Virginia.
    Nearly 2 months after that horrific explosion, I am 
perplexed--let me spell that--P-E-R-P-L-E-X-E-D--perplexed as 
to how such a tragedy on such a scale could happen, given the 
significant increases in funding and in manpower for the MSHA 
that have been provided by this subcommittee.
    Congress has authorized the most aggressive miner 
protection laws in the history of the world--history of the 
universe. But, such laws aren't worth a dime if the enforcement 
agency is not vigorous about demanding safety in the mines.
    These laws are also jeopardized when the miners themselves 
are not incorporated into the heart of the inspection and 
enforcement process, as Congress intended for them to be. Now's 
the time--long past the time--to cast off the fears, the 
cronyism, and other encumbrances that have shackled coal miners 
and MSHA in the past.
    Assistant Secretary Main and his team at the MSHA still 
have much to explain regarding this tragedy at Upper Big Branch 
that happened on their watch their watch. I don't believe it 
was because of a lack of funding. I don't believe that MSHA 
lacked--L-A-C-K-E-D--lacked enforcement authorities. I don't 
believe that.
    Massey Energy officials, who bear the ultimate, final 
responsibility for the health and safety of their workers, 
still have much to explain to the country and to the families 
of the miners who perished. I cannot fathom how an American 
business could practice such disgraceful health and safety 
policies while at the same time boasting about its commitment 
to safety of its workers. I can't understand that.
    The Upper Big Branch mine had an alarming record of 
withdrawal orders. Now, where on Earth--where was the 
commensurate effort to improve safety and health? Where was it?
    Presently, there are several ongoing investigations, 
including an ongoing criminal investigation an ongoing criminal 
investigation. Perhaps, so just maybe these will provide some 
solace and comfort to the families who are looking for 
accountability.

                           PREPARED STATEMENT

    Let us also hope that his hearing will provide information 
on the Government and company officials who should be held 
accountable and lead us to some additional steps that may be 
taken to avoid such horrific, such terrible loss of life in the 
future.
    [The statement follows:]
              Prepared Statement of Senator Robert C. Byrd
    Mr. Chairman, I very much appreciate your holding this hearing. You 
and your staff have been very gracious in accommodating my requests for 
supplemental funding and for this oversight hearing, in the wake of the 
terrible tragedy that took the lives of 29 miners in the coal fields of 
southern West Virginia.
    Nearly 2 months after that horrific explosion, I am perplexed as to 
how such a tragedy, on such a scale, could happen, given the 
significant increases in funding and manpower for the Mine Safety and 
Health Administration (MSHA), which have been provided by this 
subcommittee.
    In recent weeks, MSHA has announced so-called inspection blitzes. 
MSHA has announced new rules concerning preshift examinations and 
pattern violators, and has displayed a new-found willingness to use 
injunctive relief to close dangerous mines. It is tragic that miners 
had to perish in order to precipitate such enforcement. The Congress 
has authorized the most aggressive miner protection laws in the history 
of the world, but such laws are useless if the enforcement agency is 
not vigorous about demanding safety in the mines.
    These laws are also jeopardized when the miners themselves are not 
incorporated into the heart of the inspection and enforcement process--
as Congress has intended them to be. Now is the time--in fact, long 
past the time--to cast off the fears, cronyism, and other encumbrances 
that have shackled coal miners and MSHA in the past.
    Assistant Secretary Main, and his team at MSHA, still have much to 
explain regarding this tragedy at Upper Big Branch (UBB) mine, which 
happened on their watch. I do not believe it was because of a lack of 
funding. I do not believe that MSHA lacked enforcement authorities.
    Massey Energy officials, who bear the ultimate responsibility for 
the health and safety of their workers, still have much to explain to 
the country and to the families of the miners who perished.
    I cannot fathom how an American business could practice such 
disgraceful health and safety policies while simultaneously boasting 
about its commitment to the safety of its workers.
    The UBB mine had an alarming record of withdrawal orders--where was 
the commensurate effort to improve safety and health?
    Presently there are several ongoing investigations, including an 
ongoing criminal investigation. Perhaps these will provide some solace 
to the families who are looking for accountability. Let us also hope 
that this hearing will provide information on the Government and 
company officials who should be held accountable, and lead us to some 
additional steps which may be taken to avoid such horrific loss of life 
in the future.

    Senator Harkin. Senator Byrd, thank you very much for a 
very profound statement, one that really gets to the nub of why 
we're here.
    I had opened with some questions earlier, for Mr. Main and 
Ms. Smith. If you want to pose some questions, Mr. Chairman, I 
would yield to you for any questions you might have for Mr. 
Main.
    Senator Byrd. Thank you, Mr. Chairman.
    Yes, my first question is addressed to Assistant Secretary 
Main--M-A-I-N. Given the disturbing safety record--and I mean 
disturbing safety record--and the reputation of this particular 
mine, why oh, why, oh, why did MSHA wait until after the 
tragedy to launch an inspection blitz at coal mines with a 
history I mean, a history of pattern violations?
    Senator Harkin. Mr. Main.
    Mr. Main. Senator, that's a fair question, I think, from 
this body. I think, for those to understand why we did the 
blitzes we did is to make sure darn sure we had no other Big 
Branches that existed.
    Senator Byrd. Can you understand him?
    Senator Harkin. I'm trying to listen.
    Say that again, Mr. Main.
    Mr. Main. I think that is a very fair question to be asked 
of us. And I can report why we did what we did, in terms of the 
blitzes, to make sure there were no other Upper Big Branches 
that existed with regard to conditions that pose those kind of 
threats.
    Senator Harkin. Again, let me just emphasize. Senator 
Byrd's question asked, Why did you wait until after this 
tragedy to launch this blitz of inspections, especially in a 
mine that had a pattern and a history of violations?
    Mr. Main. As we examine what we did, we're going to take a 
look, to figure out what we did or didn't do. I think that what 
was happening on the ground in West Virginia with the 
enforcement folks that were there, they were using the tools 
that they had been using constantly over the years, and a tool 
that has been somewhat useful, to a great degree, to help fix 
some of these problems; that's the 104(d) closure orders. And 
as the record reflects, that mine did receive the most closure 
orders of any mine in the United States last year. And, you 
know, there's a question, I think, on all of our minds, you 
know, What else could we have done there?
    In retrospect, you know, I think that the--there would have 
been more enforcement tools that were used, without anybody's--
without any question, at that mine. And having learned the 
lessons that we have from that experience, we don't want to do 
anything to ever repeat them again. And I think that we're 
struggling right now to figure out what tools we can grab out 
of the toolbag and create. And one of those is this 108 closure 
order--injunctive order that we're looking at to move forward. 
It's been in the MINE Act, I think, since 1969, and never 
used--and trying to find tools like that.
    We had the pattern of violations that--when we looked at 
it, it was basically a broken system. That law was passed by 
Congress after Scotia, in 1977. There hasn't been one single 
mine ever put on the pattern of violations, except for one 
mine, for a short period of time--and went to court and got 
off. That signals that we have shortcomings.
    Senator Byrd. Mr. Main.
    Mr. Main. Yes, sir.
    Senator Byrd. Why did MSHA wait until after the tragedy to 
launch an inspection blitz at mines that had a history of 
pattern violations?
    Mr. Main. Senator, the only thing I can say is that the 
agency didn't do it. That's something we have to take a look at 
and figure out--you know, that's something we'll look at and 
try to figure out what we did or didn't do.
    Senator Byrd. Assistant Secretary Main and Solicitor Smith, 
aside from the health and safety laws, what unconventional 
remedies exist to deal with a rogue--R-O-G-U-E--rogue mining 
company that has a reputation for flouting in other words, 
waving its nose at the law? You want to answer that?
    Ms. Smith. Senator, I would suggest that the criminal laws 
may be where your answer lies. And I know that we have been 
looking very carefully, and working with the U.S. Attorney, to 
see what can happen in that regard. Aside from the health and 
safety laws that you mentioned, I think that we really do have 
to look at the penal law.
    Senator Byrd. Mr. Main, I'd like to get your comment on 
that. Why--let me ask you again--why--aside from the health and 
safety laws, what unconventional remedies exist to deal with a 
rogue mining company that has a reputation for flouting the 
law?
    Mr. Main. In terms of dealing with a rogue operator and 
using the tools that we have at our disposal as a Federal 
agency, you know, there are tools that we are constantly 
developing, now, to do that. One is these blitz inspections. 
We're looking at--and I don't know if you'd call it 
``unconventional,'' but it's never been used before but--
injunctive relief to go after and shut down mines that have 
records like Upper Big Branch, that we will be shortly 
proceeding in court with. We are looking at ratcheting up all 
the current tools that we have in our toolbag, to use those 
more effectively.
    I'll tell you a little story that's bothersome here. In the 
midst of the Upper Big Branch tragedy, we had calls from miners 
from three mines that got, apparently--I wouldn't say 
``miners,'' they were anonymous calls; I should clarify that--
they got so fed up with the conditions that they were working 
in that they called MSHA. Two of them came in on March 25. One 
came in after Upper Big Branch. And miners complained about 
illegal practices, illegal mining systems, illegal ventilation, 
and coal dust in the mines that wasn't taken care of. We sent 
inspectors to those mines on the afternoon shift. And people 
should expect a bit more of this. About 8 o'clock in the 
evening, we went to two of the mines, captured the phones, went 
underground, and found illegal conditions that are unbelievable 
in the 21st century.
    We are changing our tactics. We figure that some of these 
companies have us figured out pretty well, and we've got to 
change our tactics and do things unconventionally, to be able 
to go in and catch these mines when they're violating the law. 
This was a Massey these were three Massey Energy mines. And 
these were three Massey Energy mines where the conduct that we 
found could not be considered any more that outlawish.
    We have to change the way we do business. We have to get 
some new standards in place. We have to go after those who are 
operating like this. That's the reason subpoena power, in terms 
of something we're pursuing, is important. We have to give 
these miners a voice. Some of them are scared to death to speak 
out about conditions they're stuck in. Having tools like that, 
we believe, are necessary to fix this problem.
    And I would point out, Mr. Chairman--I don't know if I 
did--one of these complaints occurred after the Upper Big 
Branch disaster.
    Senator Harkin. I will have a follow-up question, after the 
Chairman finishes, regarding why miners can't feel more free, 
as whistleblowers, to make these kind of calls.
    Senator Byrd. In his testimony, Mr. Secretary, Mr. 
Blankenship states that MSHA certified the Upper Big Branch 
mine to be in good condition--quote/unquote, ``good 
condition''--prior to the April 5 explosion. Mr. Blankenship 
says, ``MSHA officials forced--F-O-R-C-E-D--forced Massey 
engineers to accept an unsafe ventilation plan, and suggests 
that MSHA is trying to cover up its mistake in a secret 
investigation. Now, this sounds like someone is trying to blame 
your agency for the death of 29 miners. How do you respond?
    Mr. Main. Thank you, Senator.
    The first thing I'm going to say is that MSHA does not 
run--or did not run--the Upper Big Branch mine; Massey Energy 
did. They designed it. They hired the people. They conducted 
whatever examinations that they decided to conduct, whether 
that was in compliance with the law or not. But, they were the 
ones that operated the mine.
    With regard to us declaring this mine--certifying this mine 
as safe or good, MSHA does not certify mines as safe or good. 
So, I have no clue what the basis of that argument is. There is 
no doubt in my mind that the conditions in that mine were not 
good. And both our agency and others who take a look at this 
would take great issue with.
    As far as the ventilation plan is concerned, MSHA doesn't 
design ventilation plans for mines. The process is that the 
mine operator drafts the plan, submits it to MSHA for approval. 
MSHA approves or disapproves the plan.
    And let me comment on that statement about the conditions, 
starting back in September, where MSHA had some so called 
``influence'' over the crafting of Upper Big Branch's 
ventilation plan. I want to walk through just a few issues that 
happened, to help set the record straight here, and give some 
understanding of what we're talking about.
    On September 1, 2009, an inspector went into the Upper Big 
Branch mine, went back into the longwall area and found that 
the company was in the midst of a major air change. Under the 
law, when you make a major air change, you evacuate all the 
miners out of the mine. In this case, they had miners working 
on the longwall and other sections of the mine. The inspector 
also found that the air was reversed on this brandnew longwall 
that they were putting into place. That meant it was going in 
the wrong direction and was not being ventilated. There was an 
airshaft that was put in on the back side of that longwall that 
was delivering about 400,000 cubic feet of air, but for some 
reason, the mining company couldn't figure out how to make that 
air work to ventilate that longwall face. This was a mine that 
was not being operated legally, endangering miners and--I would 
say, gravely endangering miners in functioning that way. And 
the inspector did what the inspector should have done: issued a 
closure order on the mine and ordered every miner out of that 
mine until they fixed it.
    Under our process, MSHA has the tools; they find a 
violation, they issue the appropriate enforcement action. And 
whether that is a citation or a withdrawn order, MSHA orders 
the violation it to be corrected. The company decides how 
they're going to correct it, MSHA does not. But, they have to 
correct it to satisfy the order.
    In January 2010, MSHA goes back into the same longwall and 
finds that the headgate entry that ventilate not only this 
longwall, but a return off of another section, had deteriorated 
to the point it wasn't travelable. The reason it deteriorated 
is, the company didn't maintain the entry. It's that simple. 
And what happened was, the air course that was coming off of a 
second section that was required by law to be traveled, 
couldn't be traveled. MSHA issued, appropriately, an order on 
that mine, and ordered the mine to cease that activity until 
the conditions were fixed.
    This again placed the miners in grave danger in this mine, 
in my opinion. The mine operator was required to fix it. And 
the mine operator had to come up with its own options to fix 
the problem.
    But, these are the kind of conditions that we're finding. 
It's--and if the--if Massey or any other company asked MSHA to 
back off of an enforcement action because they don't like it, 
MSHA's not going to do that; we're going to enforce the law.
    Senator Harkin. Mr. Main, we'll have Mr. Blankenship on the 
next panel. I'm sure we'll get into that. I ask you to stay 
here during that period of time, after this panel is done to 
try to get to the bottom of this.
    I want to recognize Senator Murray.
    Mr. Main. Okay.
    Senator Murray. Mr. Chairman, thank you very much for 
having this hearing. I appreciate it.
    And, Ms. Smith, if I could start with you. You noted, in 
your testimony, that changes to pattern of violations process 
may be necessary to make it more useful as a tool to address 
problem behavior in a more timely way. I wanted to ask you if 
you believe that mine operators have taken advantage of the 
current pattern of violations process.
    Ms. Smith. Well, I think that one of the incentives for the 
incredibly high increase in the contest rate we've seen is that 
under the current pattern of violation standards, until there 
is a final order, a violation doesn't count against a pattern 
of violations. And we have seen, you know, a number of 
operators have avoided a pattern of violations because they 
have orders that are not final.
    Senator Murray. So, is there something we can do to change 
it so that this is taken seriously by mine operators?
    Ms. Smith. MSHA is proposing regulatory changes, and we are 
working with the subcommittee to look at statutory changes, 
also.
    Senator Murray. Okay. I look forward to seeing those.
    Ms. Jordan, in your testimony, you said that in 2008 your 
case backlog increased by 72 percent, and that, in fiscal year 
2010, cases under 1 year of age constituted 25 percent of all 
cases decided by the FMSHRC; 62 percent were 1 to 2 years old; 
and 13 percent of decided cases were more than 2 years old. Is 
there pressure on administrative law judges to close cases, due 
to the backlog?
    Ms. Jordan. Well, our judges--our productivity--we do keep 
records of how many cases are disposed of. I think that the 
judges are aware of the backlog, and I--the judges are very 
hard working and conscientious. I don't think there's pressure 
to not do a thorough job with what they need to do. But, 
they're you know, it's sort of balancing that those factors. 
There's a backlog, but--and judges--we are taking steps to, you 
know, bring on assistants for the judges, clerks, and, of 
course, bringing on more judges.
    Senator Murray. But, people are looking whether you have a 
backlog or not. And----
    Ms. Jordan. Right. We also recently implemented a 
procedural change that would help speed things along and make 
it smoother for the judges. The majority of the cases get 
disposed of by means of settlement. The parties reach a 
settlement and they file a motion to approve the settlement 
with the FMSHRC.
    Senator Murray. So, over time, I would assume that means 
fewer fines?
    Ms. Jordan. That--no, not necessarily. I mean, it--the 
parties reach a settlement and they file it with the FMSHRC. 
The FMSHRC judges review that settlement, and they are free to 
accept it or reject it. If they feel that it doesn't comply 
with the statutory criteria or if there's a departure from the 
amount of settlement that was originally proposed, the judge 
may, and sometimes does, ask--rejects the settlement and asks 
for an explanation, ``Why has the Secretary accepted--you know, 
if they initially proposed a certain amount and now they're 
settling the case at a different amount, what explains that 
difference?'' and then has required the parties to come forward 
and explain that.
    We recently--until recently, our judges, though, has to 
draft the order that got issued, approving that settlement. And 
we've eliminated that step. We've now required the parties to 
file a draft order with their motion, and to do that 
electronically. And we hope that, you know, that change will 
help expedite some of these cases, too.
    Senator Murray. Okay.
    Mr. Main, Mr. Blankenship is known to believe that Massey 
Energy mines have been disproportionately targeted for mine 
inspections and MHSA citations. Does MHSA disproportionately 
target mines or issue citation frivolously?
    Mr. Main. Senator, I don't think so. And I think that 
whenever you look at some of the conditions that are being 
cited and I just gave the recent example of three mines from 
which we have received anonymous complaints MSHA went in on the 
afternoon shift, captured the phones so they couldn't call 
underground, and found the kind of conditions described in the 
complaint. Those are the kind of things that mean that we have 
to spend more time at mines like that.
    Senator Murray. What kind of violations have you found at 
Upper Big Branch?
    Mr. Main. You know, I think there have been a range of 
violations. Of the ones we've talked about probably the most 
have been on the ventilation standards. Two of them I just 
talked about, which was finding the mine inadequately 
ventilated during inspections. There have been violations over 
combustible materials, which is coal that could cause fires and 
coal dust that could cause explosions. I think one of the 
things that we're concerned about, in this particular case, was 
excess coal dust in this mine--and we're going to check that 
out, as part of the investigation. But, these are the kind of 
conditions you worry about.
    Senator Murray. Okay. Well, Mr. Blankenship said in his 
testimony that the changes recommended in the violation plan 
made the mine less safe. Can you speak to us about why the 
Upper Big Branch was made to update its ventilation system? You 
talked through that a minute ago. I was trying to follow it. If 
you could do that again.
    Mr. Main. Yes, Senator. I--from--I'm going to say this in 
the context that we're still in the process of doing the 
investigation of the mine, and it's going to be some time 
before we get all these facts together.
    But, in terms of some critical issues that I have looked 
at, in terms of some of the paper that was issued at the mine, 
to try to get a handle on that, we found that on September 1, 
for example, when an inspector went into the mine and found 
that they were making a major air change, with miners 
underground; you don't do that. That's a violation of the law 
that exposes miners to dangers, when you're moving air around. 
They found that in the section the--one group of miners was 
working the air actually reversed, it wasn't going in its 
proper direction.
    Senator Murray. So, the ventilation wasn't working 
correctly.
    Mr. Main. It was not working. I think, to the extent that--
in that case, if it's going the wrong direction, it is just 
absolutely not working.
    And those are the kind of things that I think tend to make 
the agency concerned. And when you find that kind of attitude 
about safety, MSHA is going to be spending more time there.
    And I think if you look, historically, at that mine, the 
inspection time was doubled from 2007 to 2009. I wasn't here as 
Assistant Secretary at the time, but I think when looking back, 
there was a reason for that. And the conditions we cited were 
reflecting a reason the agency needed to be in there more.
    Senator Murray. Okay. All right. Thank you very much.
    And thank you, Mr. Chairman.
    Senator Harkin. Thank you, I just had one follow-up for Ms. 
Jordan. As you know, we just passed out of this subcommittee, 
last week, a supplemental appropriations bill. In that there is 
$3.8 million in funding for the FMSHRC. Now, I know that bill 
still has to pass the Senate. We hope to do that next week. 
Then we will get together with the House. But, sometime, 
probably within the next few weeks, that bill will be law. I 
think I can assure you that the money will be there.
    My point in bringing this up is that it seems to me there 
may be two ways that you can approach using this money. You can 
hire fewer staff and stretch it out for a longer period of 
time, or can hire more staff right now and hope that there'll 
be more money later on. I would hope that you would pursue the 
second course of action. You need personnel now. We are 
committed to making sure that the FMSHRC gets the funding that 
it needs. And we'll work to retain this funding in fiscal year 
2011, by going somewhat over the President's request. So, I 
hope I've made myself clear on that.
    Ms. Jordan. You have. Thank you, Senator.
    We, I agree with that approach. That, and we've been 
looking at just such an approach that would give us the 
flexibility, you know, to be aggressive in bringing on as much 
staff as we can.
    Senator Harkin. Very quickly, Dr. Howard, can you tell me, 
what's happened to the Lake Lynn experimental mine and why it 
hasn't been reopened.
    Dr. Howard. Yes, Senator. I can answer the first part of 
the question. The Lake Lynn experimental mine, as you know, is 
an international research for safety and health. And certainly 
in terms of dust and gas explosion research, there really is no 
other laboratory in the world that can do that kind of 
research, in addition to in-mine rescue equipment research and 
ventilation studies, et cetera. So, every day that goes by 
without us having access to that mine is a day that we 
certainly are upset about.
    The Centers for Disease Control and Prevention and the 
Department of Health and Human Services are doing the best job 
they can, in terms of real property acquisition of the mine. As 
you know, there was a roof fall, recently, that blocked the 
entrance. We've been trying to work through that issue.
    We'd like to express our appreciation to you and the rest 
of the subcommittee for the interest in reopening that mine. 
It's a difficult property acquisition. I'm not an expert in 
buildings and facilities in the Government, but it's not your 
usual surface acquisition.
    We hope that we can activate the standstill agreement and 
reopen the lease of the mine and get back in there, perhaps 
excavate another portal, so that we can work around the area 
that the roof has fallen.
    Senator Harkin. Well, I believe we have information on what 
it would cost to do that. But, you might want to follow up and 
give us an up-to-date estimate on what is required to reopen 
that mine.
    Dr. Howard. Will do.
    Senator Harkin. I thank you very much.
    I thank this entire panel. Thank you all very much, for 
being here. Thank you for your testimony and you can all be 
dismissed.
    We'll call our second panel up.
    Senator Harkin. We welcome our second panel.
    Mr. Don L. Blankenship has served as the chairman, 
president, and chief executive officer of the Massey Energy 
Company, since November of 2000. He joined a Massey subsidiary 
in 1982, earned his accounting degree from Marshall University 
in Huntington, West Virginia.
    Our second panel witness is Mr. Cecil E. Roberts. He served 
as president of the UMWA for the past 12 years. Prior to 
serving as president of the UMWA, Mr. Roberts spent 13 years as 
vice president. Mr. Roberts received his degree from West 
Virginia Technical College in 1987, and, of course, has 
testified before this subcommittee several times over the 
years. And we welcome you back here to this subcommittee.
    Mr. Blankenship and Mr. Roberts, your testimony will be 
made a part of the record in its entirety. And if you could sum 
up the main points in 5 or 7 minutes or so, we would sure 
appreciate it, so we could get into a discussion.
    Mr. Blankenship, we'll start with you. Welcome, again, to 
the subcommittee. And please proceed.
STATEMENT OF DON L. BLANKENSHIP, CHAIRMAN AND CEO, 
            MASSEY ENERGY COMPANY, RICHMOND, VIRGINIA
    Mr. Blankenship. Thank you, Mr. Chairman. I appreciate the 
opportunity to appear before the subcommittee this afternoon 
and to discuss the Upper Big Branch accident.
    No words can adequately describe the tragedy of April 5. I 
visited, personally, despite media reports, with most of the 
wives, children, parents, and family members of Massey who lost 
their lives. In these meetings, I extended to them my deepest 
sympathies and committed to do whatever I needed to do to 
attend to their needs, the needs of their--those who had lost 
their loved ones. I personally heard their expressions of grief 
and saw, in the eyes, unspeakable sorrow that they had. It's 
too late to bring back those that we lost, but we must do 
everything we can to find out what happened and to do our best 
to keep it from happening again.
    Massey strongly supports the principle that the 
investigation at Upper Big Branch must be independent, honest, 
and aggressive. Transparency is an important element of the 
process.
    Senator Byrd. Mr. Blankenship, would you speak a little 
louder?
    Mr. Blankenship. Yes, sir.
    Senator Byrd. And clearly, into the microphone.
    Mr. Blankenship. I will pull it up here and try to help 
that.
    What I was saying is, that transparency is an important 
element of the process of the investigation. Massey Energy has 
joined with other stakeholders, including UMWA, in calling on 
MSHA to conduct this investigation through a public hearing, 
rather than through closed door sessions.
    Today, I want to address Massey's overall commitment to 
safety, discuss our interactions with MSHA regarding 
inspections and appeals, and discuss ways that we can work 
together with MSHA to make mine safety and accident 
investigations more transparent.
    Let me state for the record, Massey does not place profits 
over safety. We never have and we never will. Period. From the 
day I became a member of Massey's leadership team, 20 years 
ago, I have made safety the number one priority. The result has 
been a 90 percent reduction in lost-time accidents, which has 
been better, often dramatically better, than industry average 
in 17 of the last 19 years. Our safety innovations have been 
adopted by our competitors and been praised by MSHA. In fact, 
last year, MSHA honored Massey with an unprecedented three 
Sentinels of Safety awards, the highest safety award in the 
mining industry.
    Next, I want to talk about the issue of citations and 
appeals. First and foremost, abatement is mandatory. Even if a 
citation is appealed, any deficiency must be corrected 
immediately. For most citations, the condition is corrected the 
same day. At Massey, we always fix the problem, even if we 
disagree with the punishment. Massey does not, quote, ``game 
the system,'' as some have insisted. Rather, we are exercising 
our right to due process under the system that Congress has put 
in place.
    We do not benefit from a system in which appeals are 
backlogged for months or years. And we urge Congress to 
appropriate the necessary resources that are necessary to make 
the appeal process work safely and quickly.
    At the Upper Big Branch mine, we work together with MSHA to 
address citations and to ensure that the mine remains safe. 
Between April and October 2009, 47 D orders, which are the most 
serious violations, were recorded at Upper Big Branch. That 
presented a challenge that we would not tolerate at Massey and 
did not ignore. In response, Massey convened a hazard 
elimination committee comprised of top managers, and reduced 
these violations about 80 percent. In fact, MSHA held its 
quarterly closeout meeting a few days prior to the explosion 
and determined that there was no major issues and that the mine 
was in good condition. Let me repeat, to make it clear, that, 
just days before the April 5 explosion, MSHA agreed that the 
Upper Big Branch mine had no major outstanding safety issues, 
and found the mine to be in good condition.
    At Upper Big Branch, we complied with MSHA safety orders 
even when we strenuously disagreed with them. In particular, we 
disagreed with MSHA's ventilation plan for the Upper Big Branch 
mine. Against the advice of experts, MSHA required several 
changes, since September 2009, that made the ventilation plan 
much more complex. This change significantly reduced the volume 
of fresh air to the face of the longwall mining operation. Our 
engineers resisted making the changes in one instance, to the 
point of shutting down production for 2 days, before being 
forced to agree to MSHA's changes. We opposed the changes 
because our engineers believed they made the ventilation system 
less effective, not because they were more costly or because 
they interfered with production.
    We do not know whether the ventilation system played a role 
in the explosion. And we do not know whether the modifications 
to that system, demanded by MSHA, played any role in the 
explosion. But, our disagreement with MSHA over the ventilation 
plan highlights what we believe is a fundamental flaw in the 
way this accident is being investigated. It is simply this: We 
do not think that MSHA should be permitted to investigate 
itself behind closed doors. How likely is it that MSHA will 
point the finger at themselves, if the evidence gathered in 
confidential interviews suggests that the actions their 
actions--contributed to the explosion? How do we know, if we 
don't see the evidence and if MSHA investigates in secrecy?
    Other safety agencies don't work that way. After an 
aircraft accident, the independent National Transportation 
Safety Board conducts its investigation in public. They look at 
both the airline operator and the Federal regulator. That is 
why we have called for open, public, and transparent 
investigations at Upper Big Branch.

                           PREPARED STATEMENT

    In conclusion, Mr. Chairman, Massey Energy continues to 
mourn the loss of our miners. We are caring for the families 
who lost their loved ones. And we are determined to find out 
what happened.
    At the same time, we all need to recognize the importance 
of the coal industry to the economy and to the security of the 
United States. Coal is an abundant, affordable, and reliable 
source of energy that reduces our dependence on foreign oil. 
Pointing fingers and hurling accusations does not change that 
vital role that coal plays in America's energy future. This is 
a time for industry leaders and the regulatory agencies to work 
together so that America's coal miners can be safe and can 
provide the energy that our Nation relies on.
    I'll be happy to answer your questions, whenever you're 
ready.
    [The statement follows:]
                Prepared Statement of Don L. Blankenship
    Mr. Chairman, I appreciate the opportunity to appear before the 
subcommittee this afternoon to discuss the Upper Big Branch (Upper Big 
Branch) accident that took the lives of 29 valued Massey members. April 
5 was one of the worst days of my life and in Massey Energy's history. 
But the grief we have felt since that day pales in comparison to the 
pain and loss endured by the family members who lost their husbands, 
brothers, sons, and grandsons that day. I was with the families in the 
week following the tragedy, and I have gained a profound respect for 
their faith and their love and commitment to the miners lost in the 
accident.
    I have pledged that Massey Energy will do everything that is 
humanly possible to learn the cause of the explosion so that we can 
take every measure to prevent this type of accident from happening 
again. Massey is cooperating fully with State and Federal investigators 
and is conducting its own investigation into the accident as well so we 
can discover the truth. Furthermore, Massey Energy has joined with 
other stakeholders, including the United Mine Workers, in calling on 
MSHA to conduct its investigation of the Upper Big Branch mine 
explosion in the full sunlight of day, in front of the families of the 
miners, the mining community, and the American public.
    Today, I want to address Massey's overall commitment to safety, 
discuss our interactions with MSHA regarding both inspections and 
appeals, and discuss ways that we can work together with MSHA to make 
mine safety and accident investigations more transparent.
    From the day I became a member of Massey's leadership team 20 years 
ago, I have made safety my number one priority. I felt that other 
safety programs were too reliant on slogans and signs. So I designated 
safety as S-1: Safety First.
    Massey has long been an innovator of safety enhancements and has 
introduced many safety practices that have later been adopted 
throughout the mining industry in the United States and around the 
world. Since the establishment of our S-1 safety program, the 
innovation has increased. The following is a chronology of just a few 
of these Massey innovations:
  --1993.--Massey mandates the use of reflective clothing; Massey 
        mandates use of metatarsal work boots for mining operations.
  --1994.--Massey implements seat belt policy for all mining equipment.
  --1995.--Massey designs, develops, and implements ATRS flapper pads 
        for roof bolters; Massey replaces ladders on large trucks with 
        steps to reduce falls.
  --1996.--Massey requires the use of strobe lights on underground 
        vehicles.
  --1999.--Massey installs lights on all belt line feeders; Massey adds 
        submarine safety package on stockpile dozers and loaders.
  --2000.--Massey requires the use of reflective tape on all surface 
        vehicles.
  --2002.--Massey adds submarine safety package on highwall excavators 
        and shovels; Massey implements continuous miner radio remote 
        safety precautions.
  --2003.--Massey installs safety cameras on surface haulage trucks.
  --2005.--Massey begins development of continuous miner proximity 
        protection device.
  --2007.--Massey develops self-contained foam fire-fighting car.
    Our next round of continuous miners will be the first in the world 
to have proximity devices on them that will shut down equipment if a 
coal miner is too close to them to be safe. And, we are near completion 
of a new hard hat design that we believe will be adopted by the entire 
coal industry.
    Today, Massey Energy's safety program has more than 120 rules and 
equipment enhancements that exceed legal requirements. The result has 
been a 90 percent reduction in our lost time accident rate, which has 
been better--often dramatically better--than the industry average for 
17 of the last 19 years. Our safety innovations have been adopted by 
our competitors and have been praised by MSHA. In fact, just last fall, 
MSHA honored Massey Energy with three Sentinels of Safety awards, the 
highest safety honor in the mining industry. No other mining company 
has ever matched that accomplishment.
    So let me state for the record--Massey does not place profits over 
safety. We never have, and we never will.
    No coal company can succeed over the long term without a total 
commitment to safety and a significant investment in necessary 
training, equipment and personnel. We strive to remain an industry 
leader in safety by developing new technologies and employing effective 
training programs to reduce accidents and improve safety for all of the 
hard-working men and women of Massey Energy.
    Next, I want to talk about the issue of citations and appeals. 
Massey's approach to safety is simple. First and foremost, abatement is 
mandatory. If MSHA identifies a safety violation and issues a citation, 
abatement is also mandatory. That means that even if the company 
appeals the citation, the equipment at issue, or the area of the mine 
in question, does not operate until that cited hazard is fixed. The 
large majority of violations are corrected the same day, often 
immediately. For those that require more time to correct, a deadline is 
given by the inspector. The company has no choice in the matter, and 
must follow the direction of the inspector. This is process established 
by Congress in law.
    We do appeal many of the citations, not to avoid correcting a 
problem, but because we disagree with the inspector's judgment or 
because we believe that a proposed penalty is unfair. The right to a 
fair hearing before a neutral factfinder is fundamental to our system, 
and Congress has guaranteed that coal mine operators, just like every 
other business and every individual share the right to due process of 
law. That means trial first, and punishment later, not the other way 
around. Since Congress made fundamental changes in the system in 2006, 
Massey's rate of appeals have been consistent with industry average. 
Just as important, through adjudications and settlements, the final 
penalties imposed are nearly 40 percent less than what MSHA proposed--a 
sure sign that our appeals are not frivolous nor are they taken for 
purposes of delay.
    So as you can see, Massey Energy does not ``game the system,'' as 
some have insisted. Rather, we are exercising our rights to due process 
under the system that Congress has put in place. We do not benefit from 
a system in which appeals are backlogged for months or years and we 
urge Congress to appropriate the resources necessary to make the appeal 
process work fairly and expeditiously.
    At the Upper Big Branch mine, we worked together with MSHA to 
address citations and ensure that the mine remained safe. Between April 
and October 2009, 47 D orders, which are the most serious violations, 
were recorded at Upper Big Branch. That presented a challenge that we 
would not tolerate and did not ignore. In response, Massey convened a 
Hazard Elimination Committee comprised of top managers and reduced 
these violations by 80 percent. In fact, MSHA held its quarterly close-
out meeting a few days prior to the explosion, and determined that 
there were no major issues and that the mine was in ``good condition.'' 
Let me repeat that to make it clear. Just days before the April 5 
explosion, MSHA certified that the Upper Big Branch mine had no 
outstanding major safety issues. It found the mine to be in ``good 
condition.''
    At Upper Big Branch, we complied with MSHA safety orders even when 
we strenuously disagreed with them and believed them to be detrimental 
to the health and safety of the mine. In particular, we disagreed with 
MSHA's ventilation plan for Upper Big Branch mine. Against the advice 
of our own experts, MSHA required several changes since September 2009 
that made the ventilation plan significantly more complex. This change 
in ventilation significantly reduced the volume of fresh air to the 
face of the longwall mining operation during this period. Our engineers 
resisted making the changes, in one instance to the point of shutting 
down production for 2 days, before agreeing to MSHAs ventilation plan 
changes. We opposed the changes because our own engineers believed they 
made the mine less safe, not because they were more costly or because 
they interfered with production.
    We do not know whether the ventilation system played a role in the 
explosion, and we do not know whether the modifications to that system 
demanded by MSHA played a role in the explosion.
    But our disagreement with MSHA over the ventilation plan highlights 
what we believe is a fundamental flaw in the way the investigation of 
this accident is to be investigated. It is simply this: We do not think 
that MSHA should be able to investigate itself behind closed doors. How 
likely is MSHA to point the finger at itself if the evidence gathered 
in confidential interviews suggests that its actions contributed to the 
explosion? How do we know we'll see all the evidence, or if all 
alternatives are aggressively explored if MSHA can investigate in 
secrecy?
    Other safety agencies don't work that way. After an aircraft 
accident, the independent National Transportation Safety Board conducts 
the investigation in public. They look at both the airline operator as 
well as the Federal regulator--in this case the Federal Aviation 
Administration. That is why we have called for an open, public, and 
transparent investigation into the Upper Big Branch mine accident.
    In conclusion, Mr. Chairman, Massey Energy continues to mourn the 
loss of our miners. We are caring for the families of those who lost 
their lives. And we are determined to find out what happened and make 
sure that it cannot happen again. I would be happy to answer any 
questions at this time.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Senator Harkin. Thank you very much, Mr. Blankenship.
    And we'll turn to Mr. Roberts. Again, please proceed. If 
you could sum up in 5 to 7 minutes or so, I'd appreciate it.
STATEMENT OF CECIL E. ROBERTS, INTERNATIONAL PRESIDENT, 
            UNITED MINE WORKERS OF AMERICA, FAIRFAX, 
            VIRGINIA
    Mr. Roberts. Thank you very much, Mr. Chairman.
    First of all, let me express the gratitude of the coal 
miners and this Nation for the work that this subcommittee has 
done in the past and the support that you have provided MSHA 
and others to protect the Nation's coal miners. We owe you a 
great deal of gratitude.
    And to my friend and coalminers' friend, Senator Robert C. 
Byrd, I want to say thank you for more than 40 years of 
standing up for coalminers. But, I want to pay particular 
tribute to the fact that we just recently celebrated the 40th 
anniversary of the 1969 Coal Mine Health and Safety Act. And 
for those who believe that laws don't work, I want to point out 
something, if I may. The 40 years before the passage of the 
1969 Coal Mine Health and Safety Act, 32,000 plus coalminers 
died in the Nation's mines--32,000 plus. Since the passage of 
the Act, 40 years ago, 3,200 plus miners have died. So, there's 
been a savings of 29,000 lives because Congress saw fit to act 
in 1969, and Congress saw fit to act again in 1977, and 
Congress acted again in 2006.
    So, we stand here today to thank Congress for standing up 
for the coal miners of this Nation to protect them when they go 
to work. There's not a coal miner in this country that doesn't 
have a right to go out that door with their dinner bucket, and 
kiss their wife goodbye, and their children goodbye, and say, 
``I'll see you in about 9 or 10 hours.'' That's not 
unreasonable to expect.
    I would also like to say that we mourn the loss of those 29 
coal miners at Upper Big Branch. They were Don Blankenship's 
employees. They were my friends. I knew a number of these 
people. I was raised with their families, lived right among 
them. And as--four of these miners who died were from Cabin 
Creek, where I was raised. So, we've looked into their eyes 
also, we've seen the tears of these people's eyes.
    But, there's another 23 miners we should mention right here 
today. There's been 23 other coal miners that have died in 
Massey mines in the past 10 years. At the time of the Upper Big 
Branch explosion, Massey Energy had the worst fatality rate in 
the industry. This is before the Upper Big Branch explosion. 
So, now, we have 52 miners that have been lost at Massey Energy 
in 10 years. This is unacceptable. I think that the fact that 
other Massey Energy mines have been inspected, since this 
explosion and before this explosion, in close proximity of that 
time, and been determined to be unsafe--and, quite frankly, one 
of the upper leaders of MSHA declared that this was pitiful, 
that these mines were in terrible condition. So, it's not just 
what happened at Upper Big Branch. We've got 23 other miners 
who died before the Upper Big Branch explosion. We've got the 
29 miners who died the day of the explosion. And as we gather 
here right now, the real question for all of us, whether we're 
in Congress, whether we're leading this company, whether we're 
leading this union, How are we going to protect every single 
coal miner working at Massey Energy, and for that matter, 
across this Nation?
    When I testified previously at one of the other committees, 
I said that 95 percent of the CEOs and companies in this Nation 
try to do the right thing. They put a lot of money into 
protecting their workers. They have inspections. And they have 
criteria for working in those mines. And I will tell you, as 
Don Blankenship is sitting beside me, these other CEOs would 
not have put up with this for 5 minutes. Someone would have 
done something about this.
    You asked me and the subcommittee asked, appropriately, 
before, and it asked MSHA before and it asked MSHA the last 
time I was here, Why didn't you shut these mines down? I think 
that's a proper question.
    The other question I'd like to pose is, Why didn't Don 
Blankenship shut this coal mine down? We don't have to question 
his authority. He runs this place. He could have walked up 
there and said, ``This mine is shut down. This mine's not going 
to operate another minute until we correct these problems.''
    So, we can ask MSHA this. And MSHA's got a lot of 
explaining to do with this with respect to this, also.

                           PREPARED STATEMENT

    But, the laws are written by Congress here. Those laws are 
supposed to be obeyed by this industry. Those laws are supposed 
to be enforced by MSHA. And then those people who do not 
protect the miners and follow those laws, they should be 
punished, up to and including jail. And I don't think it should 
be just the section foreman working down at Upper Big Branch. 
There is pattern here that's running completely through this 
mining industry with respect to Massey Energy. And I'm saying 
the same thing here today that I said previously, and I say it 
publicly: I believe that.
    Thank you for your time, Mr. Chairman.
    [The statement follows:]
                 Prepared Statement of Cecil E. Roberts
    Thank you for giving us this opportunity to testify before this 
Appropriations subcommittee. As President of the United Mine Workers of 
America (UMWA), I represent the union that has been an unwavering 
advocate for miners' health and safety for 120 years.
    This subcommittee plays an important role in ensuring miners' 
health and safety: adequate funding of the different Government 
agencies that contribute to miners' health and safety is essential to 
protecting our Nation's miners. We certainly appreciate your leadership 
in asking whether the various agencies with such responsibilities have 
sufficient funding, and whether additional resources are needed to 
protect miners.
    We suggest there are three separate, but related issues to consider 
about Government support: manpower; materials and equipment; and 
research and development. For each of these, there are current needs 
that would benefit from additional support. We are pleased to have this 
chance to share our thoughts about what the Government can do to better 
help protect our Nation's workers from unsafe and unhealthy work 
places.
    Before I speak to the main topic, however, I wish to take a moment 
to remember the 29 miners killed last month at Massey's Upper Big 
Branch (Upper Big Branch) mine, as well as the miner who remains 
hospitalized. Our hearts and prayers go out to all their families. Even 
though that mine was nonunion, all miners mourn when one of our own is 
killed working in a mine; our entire community has been devastated by 
this horrific tragedy.
    We believe that investigations of the Upper Big Branch tragedy will 
show that safe mining practices were not followed at that operation and 
miners were being exposed to senseless dangers. We already know that 
MSHA issued 515 citations and orders at the Upper Big Branch mine in 
2009, and another 124 so far in 2010; moreover, the paper MSHA issued 
to Upper Big Branch reflects serious health and safety violations: 39 
percent of the 2009 citations were for ``significant and substantial'' 
(S&S) violations. These violations are usually quite serious--the kind 
of violations that can contribute to mine fires, explosions and the 
deaths of coal miners. Even more troubling is the fact that for the 
Upper Big Branch mine, in calendar year 2009 MSHA issued 48 withdrawal 
orders pursuant to section 104(d)(2) of the Mine Act for S&S violations 
the operator knew or should have known constituted a hazard; as well as 
a section 107(a) withdrawal order for an imminent danger. These numbers 
far exceed industry norms. We are disturbed that these conditions were 
allowed to develop and continue and believe that a consistent and 
aggressive enforcement scheme is necessary to protect the Nation's 
miners. For in the end it's miners who pay the price when operators do 
not adhere to what the law requires. Unless operators operate mines 
consistent with legal requirements, we will continue to witness miners 
dying.
    To address some of the present shortcomings we urge the Government 
to provide support in the form of additional staffing in the key 
agencies, as well as for the purchasing of up-to-date equipment to 
better support miners' health and safety.
                                manpower
    We believe there is a need for increased staffing at MSHA, within 
the Department of Labor Solicitor's Office (SOL), at the Federal Mine 
Safety and Health Review Commission (FMSHRC), and at NIOSH for the 
Government to have a more effective mine health and safety program.
    Over the last few months, there has been an important and much-
needed focus on the huge backlog of cases at the FMSHRC. We firmly 
believe that this backlog has served to undermine some of the changes 
Congress directed in the MINER Act of 2006. This pertains directly to 
the Appropriations process insofar as more FMSHRC judges are needed to 
reduce the backlog, which, in turn, is needed to restore the enhanced 
penalty structure Congress designed through the MINER Act. While we are 
pleased that $22 million of additional funding was included in the 
supplemental budget bill that the Appropriations Committee recently 
passed to address these needs, the backlog will persist for many years 
unless the increased budget levels continue to support staff increases 
at the FMSHRC, MSHA, and the DOL's SOL.
    The FMSHRC backlog has arisen since passage of the MINER Act in 
2006, and the related increase in Mine Act penalties: for 2006, MSHA 
assessed about $35 million in penalties, while for 2009 assessed 
penalties rose to about $141 million. With the increase in penalties, 
the number and rate of contested cases also jumped. For each of the 5 
years immediately before the MINER Act (2000-2005), only 5-7 percent of 
coal mine civil penalties lead to cases being contested before the 
FMSHRC, whereas for the last 3 years (2007-2009), the rate increased to 
18 percent, 30 percent and 31 percent, respectively.
    Why is this important? Because without a meaningful structure for 
imposing and collecting the penalties, the congressional goal of 
increasing fines for Mine Act violations has not been realized. In 
fact, the higher penalty structure is being subverted by (a) the huge 
rate of contests that operators now file, overwhelming the Government's 
ability to deal with its caseload, and (b) MSHA's practice of reducing 
assessments when operators contest them.
    When operators contest the citations and penalties, there is a 
delay to their finality. This delay prevents MSHA from imposing the 
enhanced penalties that apply for repeat violations, or from placing an 
operator with numerous violations on a ``pattern of violations.'' Thus, 
while the higher penalty structure was designed to motivate operators 
to not have repeat violations, operators have been able to avoid them 
by delaying a final order that would show the repeat violation. 
Likewise, MSHA's powerful ``pattern of violations'' enforcement tool 
becomes frustrated when citations are caught up in the FMSHRC's 
backlog. MSHA's determination that a mine has a ``pattern of 
violations'' carries much more serious consequences, and a mine must 
have an inspection free of S&S violations in order to get off of the 
``pattern.''
    In short, having a significant delay in the resolution of alleged 
violations diminishes MSHA's ability to use its full arsenal of its 
enforcement tools. Yet, many of the violations caught up in the contest 
process are quite serious--the kind of violations that contribute to 
mine fires, explosions, and the deaths of coal miners.
    Another problem follows when operators challenge MSHA citations and 
proposed penalty assessments, and they routinely see their penalties 
reduced. This occurs both at the MSHA ``conference'' as well as after a 
case is referred to litigation. Reductions often occur at conferences 
when the mine inspector who issued the citation does not attend the 
conference to explain the reason for the citations, leaving the 
conferencing officer with no first-hand knowledge of the conditions 
cited. The operators, on the other hand, regularly send their 
representatives to conferences to dispute the validity and gravity of 
the citations that were issued. As a result, conferencing officers 
frequently reduce or abate citations. We encourage MSHA to provide a 
better means for the inspectors to be able to support their citations, 
preferably with the inspector participating, too. We think it would 
also be helpful if an attorney from the SOL would be assigned to work 
with conferencing officers to help them identify the litigation 
strengths and weaknesses before any adjustments would be made. This 
would require additional staffing at both MSHA and within the SOL.
    While the FMSHRC has had certain time-lines for processing its 
cases, those no longer bear any relationship to reality. However, 
getting timely resolution of these disputes is critical to miners' 
health and safety. One possible help would be for the FMSHRC to adopt 
procedures like the OSHA Review Commission's ``Simplified 
Proceedings;'' in our testimony before the House Committee on Education 
and Labor in February of this year, the Union supported having the 
FMSHRC determine whether using such procedures would be appropriate for 
mine safety cases. We are unaware of any progress the FMSHRC may have 
made in this regard since that February hearing.
    MSHA has indicated a more aggressive rulemaking agenda, which we 
support. However, such rulemaking efforts will likely require 
additional staffing, too.
    To be most effective, we also believe MSHA needs to expand its 
cadre of in-house specialists. MSHA employs experts in such critical 
issues as ventilation, electrical systems, roof control, and ground 
control. The specialists review mine plans operators submit for MSHA 
approval before operators can implement their mining plans. These 
experts are also needed to defend MSHA citations when operators 
challenge them, as well as to investigate accidents. It is essential 
that MSHA fully staff and train its specialists to ensure the Agency 
keeps pace with industry advancements. In addition, with recent and 
anticipated retirements of MSHA's specialists, the Agency must attract 
and train additional specialists to maintain its in-house expertise. It 
takes time for MSHA specialists to be able to perform the full range of 
required tasks, so this is an area that requires on-going support.
    We further recommend that MSHA affirmatively and repeatedly educate 
workers and management alike about the miners' right to work safely: 
the Mine Act includes strong worker protections, but we know all too 
well that miners, especially nonunion miners, do not exercise these 
rights. Some simply do not know or understand them, but many more are 
too intimidated to speak up. As information widely disclosed since the 
Upper Big Branch disaster has demonstrated, miners become accustomed to 
accepting the status quo: work or go home, just don't rock the boat. In 
the coalfields, good paying jobs are treasured and workers are hesitant 
to voice safety complaints for fear of getting discovered. Under the 
current law, the operator performs mine safety training and annual re-
training, but for miners' rights training that we recommend be added, 
it is imperative that MSHA do the training. In particular, we suggest 
that MSHA educate miners--hourly and management--and no less often than 
yearly: about the miners' rights to work safely; to withdraw when 
conditions are dangerous; and to phone the Government (even 
anonymously) about conditions, as well as about the criminal penalties 
that can attach if an operator interferes with the miners' exercise of 
these safety rights.
    I am attaching a letter I submitted to the Senate HELP Committee 
earlier this month, in which I explain some of the many areas requiring 
additional Agency attention to improve miners' health and safety. Some 
of the proposed changes will require legislative action while others 
can be accomplished through rulemaking or internal policy. Regardless 
of the procedure by which the various changes can be made, many will 
require additional MSHA personnel to effect the needed improvements.
                                 niosh
    In connection with our recommendations, below, for additional 
support for research and development, we believe it will be necessary 
to fund additional personnel for NIOSH to continue the valuable work it 
offers to the mining industry. Because of the very small customer base 
for the mining industry, NIOSH performs critical research and 
development for the technological advancements that improve miners' 
health and safety.
    While we are not presently aware of the particular personnel needs 
of NIOSH, we feel it is essential to miners' health and safety that 
NIOSH be well-funded.
                               equipment
    It is essential that MSHA have equipment to enforce the laws and 
regulations governing miners' health and safety, as well as the best 
equipment available to respond to mine emergencies. It currently falls 
short on both fronts.
    Lake Lynn, is an MSHA facility near Pittsburgh that is used for 
testing mining equipment. However, it has been shut down for some time 
due to structural damage of the roof that occurred while blast-testing 
seals to meet the criteria of the MINER Act. This facility is a great 
resource to miners for testing new technologies; it is also a great 
training facility for mine rescue team members. Without the Lake Lynn 
facility, the mining industry tests products at various mine sites. 
However, that is not satisfactory and we nearly lost a Jim Walters 
operation in Alabama to a mine fire while doing a test for a mine 
sealant. It could have resulted in loss of lives and a mine shutdown. 
Therefore, we urge an allocation of funds to reopen the Lake Lynn 
facility.
    The UMWA training center in Pennsylvania is another valuable 
facility for miners that is deserving of the Government's financial 
support. This center offers invaluable training for new miners, 
underground electrical training, and mine rescue teams.
    Another valuable tool for enhanced training lies with the virtual 
reality training system. We urge an allocation of funding for the 
purchase of this state-of-the-art technology that allows miners to 
experience and respond to real hazards in a safe and controlled 
setting. For example, it can show miners how best to escape a mine 
disaster, as well as how to respond to underground rib and roof 
stability problems. This technology would be especially helpful for 
mine rescue teams, but all miners would benefit from its use.
    MSHA would benefit from additional funding for improved 
communications and training within the Agency. For inspector training, 
technical support, and improved emergency response, MSHA must be able 
to communicate with its own staff quickly and efficiently. We 
understand additional funding is needed to bring the Agency's equipment 
up to today's standards.
    We also support the creation and funding of another mine emergency 
operations center, to be located in the Midwest. At the present, such 
centers are located in the East (near Pittsburgh, Pennsylvania and 
Beckley, West Virginia) and the West (Provo, Utah). However, if there 
were a mining disaster in the Midwest, where mining activities have 
been increasing, MSHA does not have equipment in reasonable proximity 
to respond quickly.
    Other equipment that would help MSHA better enforce existing laws 
and regulations as well as to best respond to mine emergencies include:
  --Coal Dust Explosibility Meters.--This is a portable device that 
        quickly measures coal and rock dust mixtures to determine 
        whether they are in the explosive range. As it now stands, 
        samples an inspector collects are sent away and take about 2 
        weeks to process. For example, it was only after the Upper Big 
        Branch mine explosion that we learned the mine had an 
        impermissible coal and rock dust mixture shortly before the 
        explosion. Having immediate information about the combustible 
        content in a mine could prevent future explosions.
  --Mine Rescue Robots.--MSHA has at least one such robot, but more 
        would be helpful for emergency responsiveness. These robots 
        operate remotely and can go where it may be unsafe for rescuers 
        to travel. The robot can provide real time data as well as 
        video to help plan a rescue effort. We understand that the cost 
        for each one is approximately $265,000.
                        research and development
    Under both the Mine Act of 1977 and the MINER Act of 2006, Congress 
anticipated that NIOSH would provide critical research and development 
of technology and materials for the mining industry. It must be fully 
funded to continually improve and enhance miners' health and safety.
    Along with MSHA, industry, and union representatives, NIOSH 
developed proximity detection technology that is expected to 
dramatically improve safety around the huge mining equipment that is 
used both underground and on the surface. Before the Upper Big Branch 
disaster, MSHA determined that about 20 percent of the fatal accidents 
in the last 5 years could have been prevented through use of proximity 
detection equipment.
    NIOSH also developed a collapsible drill steel enclosure that 
reduces roof bolting noise levels and also captures float coal dust to 
reduce its adverse health hazards, as well as a mobile manipulator that 
can lift and maneuver loads of up to 600 pounds.
    We need NIOSH to help develop the next generation of self-contained 
self-rescuers, the units miners carry for whenever a mine emergency 
disturbs the underground atmosphere turning the air toxic. Today, 
miners are unable to speak with each other while wearing a SCSR, yet 
they cannot live if they take even a breath or two of the postdisaster 
poisonous air. There is also a pressing need for research directed at 
the development of tamper-proof machine-mounted methane monitors (also 
called ``sniffers'') that will automatically cut the power to a machine 
if the sniffer is blocked, bridged or in any other way preventing 
proper methane readings; these are needed to warn miners of excessive 
concentrations of methane.
    In short, NIOSH's research and development efforts are essential to 
advancing miners' health and safety.
                               conclusion
    We rely on the Government to enforce the mine health and safety 
laws and regulations to protect miners' health and safety. The 
Government needs to have adequate resources to do so efficiently and 
effectively. It also must have up-to-date equipment that is physically 
proximate to be accessible in the event of mine emergencies. Additional 
resources are needed to accomplish these goals, and we appreciate your 
help realizing them. Thank you for allowing us to address this 
subcommittee, and for your continued commitment to workers' health and 
safety.

    Senator Harkin. Thank you Mr. Roberts.
    I will yield, for opening questions, to Senator Byrd.
    Senator Byrd. Mr. Blankenship, do I have your attention?
    Mr. Blankenship. Yes, sir.
    Senator Byrd. Do I?
    Mr. Blankenship. Yes, sir.
    Senator Byrd. We have all heard, or we've all read, about 
the number of times that Massey mines have been cited--C-I-T-E-
D--cited for safety violations in the past months plural--M-O-
N-T-H-S. And we all know of the recent carnage at Massey's 
Upper Big Branch mine. Twenty-nine men are now dead dead dead 
simply because they went to work that morning.
    I'm also concerned about the Massey record--R-E-C-O-R-D. 
Apparently, these safety violations are nothing new--nothing 
new. According to MHSA figures, during a 10 year period-1995 to 
2006--Massey mines had a total of 1998 injuries and 24 deaths--
24 deaths. Massey Mines were cited for 31,000--I'm going to 
repeat that. Massey mines were cited for 31,000 violations. 
This means that, on the average during that 10 year period, a 
miner was seriously injured every other day. There were 10 
safety violations every day--every single day at Massey mines. 
Let me add an exclamation point there. And I'll say again, 
there were 10 safety violations every day at Massey mines. And 
this is clear--I mean, as clear as the noonday sun in its 
cloudless sky--every day at Massey mines. And this is a clear 
record. A blatant--B-L-A-T-A-N-T--blatant disregard for the 
welfare and the safety of Massey miners. Shame.
    Would you care to comment?
    Mr. Blankenship. Yes, Senator. First of all, we take 
violations extremely seriously. The criteria, after the MINER 
Act, greatly changed on violations, as I think everyone 
understands. As I said, in my opening statement and in my 
submitted testimony, I've reduced the accident at rates Massey 
by 90 percent during my tenure as chairman.
    At Upper Big Branch, we didn't sit idly by. And once we 
recognized how many violations we were having, we formed a 
hazard elimination committee, and reduced citations at Upper 
Big Branch by nearly 80 percent.
    We've worked very hard with MSHA, and very hard in our own 
company, to find ways to make miners safer. We have more than 
120 rules and policies at Massey that exceed the law. We've 
been the, if you will, most significant innovator of new 
technology, including everything as simple as reflective 
clothing to as complicated as the fact that this year we will 
buy the first --the miners with proximity devices on them. 
We're developing new helmets to make it safer. We've led the 
industry in safety innovation, and we have made every attempt 
to deal with the violations--and continue to do so, and will 
continue to do so because we believe in eliminating hazards for 
our coal miners.
    Senator Byrd. Mr. Roberts, would you like to respond?
    Mr. Roberts. Yeah, let me thank you, Senator, for the 
opportunity.
    The effort to reduce the number of violations and make the 
Upper Big Branch mine safer, if you look at the first quarter 
of 2010, and take the number of violations that were issued in 
the first quarter, after Mr. Blankenship says he assigned this 
specialty team, they were on a pace--if you take the numbers 
that they were issued, the violations they were issued in the 
first quarter, and project them out for a year, 500 violations. 
Now, I would suggest that that's not a record that anyone 
should come in here and say they're proud of.
    The other thing is, they were also shut down, I believe, 
seven times for serious violations in that first quarter. That 
projects out being shut down by MSHA, the agency charged with 
enforcing the laws that Congress passed, 28 times.
    And then, I would just like to add a human element to this, 
if I might. There is evidence there that miners were scared to 
death. There was a young man named Josh Knapper--I know his 
family--25 years old. He wrote a letter to his mother, his 
fiance, and his baby, and said, ``If I die, I want you to know 
I love you.'' Now, that's the kind of letter people used to 
write going to Vietnam. And that's the kind of letter people 
write today, going off to war in the Mid East, in Afghanistan 
and Iraq. That is not the kind of letter you're supposed to 
write going to work with your dinner bucket.
    Senator Byrd. Mr. Blankenship, miners have rights under the 
law to walk away from an unsafe work environment. But, there 
are some people who say that the miners are afraid of losing 
their jobs, so don't rock the boat. How often do Massey miners 
request transfers because of safety concerns? Let me ask that 
question again. How often do Massey miners request transfer--
because of safety concerns?
    Mr. Blankenship. I don't know that we keep a statistic on 
requested transfers. I can tell you that we did a survey, I 
believe in February of this year, where we anonymously asked 
our people if they felt safe on the job, and whether they 
thought Massey's S1, which is our name for our safety program, 
made them safer than at competitor mines. And, anonymously, 93 
percent confirmed that they felt not just as safe, but safer.
    I can tell you that we take very quick action on 
individuals that violate our safety rules as we become aware of 
them. We discharge more people for failing drug tests and 
safety than we do for anything else. So, we're constantly 
trying to enforce upon people how important we consider 
violations, how important we consider safety. We've invested 
tens of millions of dollars beyond the law. We have our own 
safety manual that exceeds MSHA's standards on safety 
requirements. We're the leader in the industry.
    Our people should not feel afraid. They have an 1-800 line 
that they can call anonymously. We encourage them, through 
posters and communication, that, if they have an issue, let us 
know. You'll always have, out of 7,000 members, people that 
perhaps don't come forward, and should. But, we think we have 
as good a safety program, in that regard, as anyone in the 
industry.
    Senator Byrd. Mr. Blankenship, how many Upper Big Branch 
miners requested to be transferred because of safety concerns, 
prior to the April 5 explosion?
    Mr. Blankenship. Again, I don't know of any statistic that 
we have on how many people requested transfer out of Upper Big 
Branch. And I don't particularly know that anyone transferred, 
or asked for a transfer, for safety reasons. They may have. 
Most of our requested transfers relate to being closer to home. 
But, I don't know of anyone, personally, that asked for a 
transfer for safety reasons. But, there may well have been 
some.
    Senator Byrd. How would you handle those requests?
    Mr. Blankenship. Well, the first thing I would be 
interested in, if I had a request that came to my attention, 
that someone wanted a transfer for safety reasons, would be 
trying to figure out what safety concern they had that would 
encourage them or cause them to make such a request. And then, 
of course, to try to correct that, as well as accommodating 
anyone that feels unsafe in our coal mines.
    I would say, to the group, that we had 29 miners perish in 
this accident that had a combined 400 and some years of 
experience, and they would not put themselves, knowingly, at 
risk, in my opinion. Two of them were engineers. Several of 
them had worked at this mine for 10 or 14 years, and were very 
experienced and very well-qualified longwall miners. And I 
don't believe that they would've put themselves at risk, 
knowingly.
    Senator Byrd. Mr. Roberts, would you care to comment?
    Mr. Roberts. The one thing I can say is, I've never met a 
Massey miner, or heard of a Massey miner, that withdrew 
themselves for cause of safety. I find that, in and of itself, 
somewhat ironic.
    The one thing that we encourage Congress to consider is to 
make it a criminal violation for any supervisor or any 
management person who interferes with a person's individual 
right to withdraw themself from what position that they feel is 
unsafe. That's something that we desperately need, because it's 
our opinion that miners are very much concerned. We know that 
people there, at this mine, were worried about being killed, 
being injured. And I think that the record will reflect that 
when this investigation is completed.
    Senator Byrd. In Mr. Main's testimony, he--the Assistant 
Secretary cites--C-I-T-E-S--recent anonymous complaints that 
prompted MSHA inspections at three Massey mines in West 
Virginia. Inspectors found illegal practices that required 
withdrawal orders to be issued because of inadequate air 
movement, with the potential for explosions; blocked escape 
ways; insufficient mine examinations by the operator; and roof 
fall hazards. Now, what happened to the Massey officials who 
allowed these dangerous and illegal practices to exist?
    Mr. Blankenship. You know, I think Mr. Main was referring 
to some events at one of our mines where people had called in, 
about 1 month before the April 5 tragedy. And, in answer to 
what happened to them, all nine individuals, who were felt to 
be aware of and participating in the improver activity, were 
discharged, and as was the one individual that was cited by 
MSHA, post the April 5 accident.
    I can say only that when you have 7,000 people, as is the 
case with a lot of companies, you can't keep track of all of 
them. But, we make our very best effort, when we hire people, 
to make sure we're hiring people who will produce safely. It 
includes drug testing; it includes criminal checks; it includes 
everything as simple as being able to read, to being 
nonsmokers. So, a big part of our safety program is trying to 
make sure we've got well-qualified, well-meaning people who can 
behave safely in a coal mine. But, sometimes that doesn't work 
out.
    But, in answer to your question, all nine of those 
individuals were discharged immediately.
    Senator Byrd. Why were MSHA inspections necessary to 
correct these?
    Mr. Blankenship. Again, as is the case with Mr. Main, I and 
others can't be at the mine every day. So, there are 
violations.
    I do think that that incident, which occurred about a month 
before the April 5 tragedy, indicates that some people do call 
in. This--as I understand it from Mr. Main, and did not know 
for sure that that was the case, these people did call in that 
they felt unsafe, or that improper practices were being 
conducted, which demonstrates that they will call the 1-800 
hotline, or be whistleblowers.
    And, as I said, we took immediate and decisive action.
    Senator Byrd. Mr. Roberts, do you want to comment?
    Mr. Roberts. Yes. I think there's a distinction that--to be 
drawn here. The question that you asked Mr. Blankenship 
previously was how many miners had withdrawn themself. That 
means, you say to your foreman, ``I think I'm in a dangerous 
position here, and I want a different place to work.'' That's 
individual withdrawal rights.
    I said I had never heard of a Massey miner exercising that 
right. Mr. Blankenship, said he didn't know. That is different 
than someone picking up a telephone anonymously--obviously, 
they're calling because their name will not be revealed and 
reporting a serious situation at their particular mine, at the 
Massey Energy Company.
    I think there were three different mines that MSHA actually 
went into; one or two of those was before Upper Big Branch. And 
I think they investigated some mines after Upper Big Branch, 
and found serious violations, also.
    So, there's a distinction here. It's not the same thing. 
When someone calls anonymously, no one knows who they are. When 
someone withdraws themselves, everybody knows who they are.
    And the question you asked Mr. Blankenship, and asked me, 
was, How often is this exercised? I know of no miner ever 
exercising that right at Massey, and he has not--he does not 
have the information, or he doesn't know of any miner that ever 
withdrew themself at Massey.
    Senator Harkin. Mr. Blankenship, you say that Massey does 
not place profits over safety, never have, never will. That's 
what you said in your statement. But, in a memo from you, dated 
October 19, 2005, you told your company's deep mine 
superintendents that running coal is the top priority in the 
mines. Here's the quote, ``If any of you have been asked by 
your group presidents, your supervisors, engineers, or anyone 
else to do anything other than run coal--i.e., build overcasts, 
do construction jobs, or whatever--you need to ignore them and 
run coal. This memo is necessary only because we seem not to 
understand that the coal pays the bills,'' end quote. Doesn't 
sound like putting safety first to me.
    Mr. Blankenship. Yeah. I think that that's true if you read 
it in the sense that--but, people at Massey know that S1 is--
safety is job one. That memo was the product of a situation 
where construction work that wasn't needed for 5 years, to turn 
off other sections and so forth, was being done at a time that 
it didn't need to be done.
    And, in fact, I encourage our coal production people to 
produce coal, because, so long as they're working in the job 
that they routinely do, they're more likely to be able to do it 
safely. When you put people, who work in the face of coal mines 
and mining coal, into the business of shooting and taking down 
overcasts and doing other work that's not normal to them, 
they're more likely to get injured than if they do their normal 
work.
    That memo was quickly and poorly drafted and sent out. A 
few days later, we sent out a corrected memo to make sure no 
one misunderstood it. And, as you might imagine, in my 20 years 
at Massey, I've probably written and received hundreds of 
thousands of memos. But, I'm confident that our safety culture, 
S1, and our belief in safety, and so forth, far overshadows any 
single letter that was written at a time when were having 
people do construction work that was not necessary for a long 
period of time, and were idling production to do so.
    Senator Harkin. After the deaths of two miners in 2006 at 
the Massey controlled Aracoma mine in West Virginia, Aracoma 
agreed to plead guilty to a series of criminal violations that 
hampered miners trying to evacuate the mine after a fire had 
started--after the deaths of those two miners. In the plea 
agreement, Aracoma officials agreed with prosecutors that the 
company, quote, ``Recklessly failed to replace the stoppings or 
to provide additional ventilation controls,'' end quote, to 
protect the primary escape tunnel. Again, it just doesn't sound 
to me like putting safety first.
    Mr. Blankenship. Well, again, we do everything we can to 
get all 7,000 of our people to put safety first. And, in that 
same plea agreement, everyone agreed--in fact, the plea 
agreement makes clear--that Massey Energy, nor any of Massey's 
executives or anyone, had any knowledge of the stopping being 
left out. I had done everything that I knew I could do, in 
advance of that fire, by pointing out that we--you know, we 
needed to make sure that everything was safe.
    Obviously, a stopping appears to--at least appears--I think 
it's fairly certainly it was left out, and it did violate the 
escape way. But, certainly, none of that plea agreement says 
that Massey executives or myself knew about it; in fact, it 
says the opposite; that we clearly did not know about it.
    Senator Harkin. Mr. Blankenship, you mentioned the MSHA 
awards, the three Sentinels of Safety awards, that MSHA gave 
you last fall, if I'm not mistaken. But, I understand that none 
of these awards were for an underground coal mine, and your 
three recognized sites represent less than 2 percent of Massey 
Energy operations. So, I think it is a stretch to say that MSHA 
praised your safety record, when Upper Big Branch mine had, 
what, 48 withdrawal orders?
    Mr. Blankenship. Yes. At about that same time we were 
having those citations, slash, violations, as far as it 
representing only 2 or 3 percent of our workforce, I don't know 
that any single mine represents more than 3 or 3\1/2\ percent 
of our workforce. So, those are individual mines, Sentinels of 
Safety Awards, and it would never represent a large portion of 
the workforce.
    Senator Harkin. But, they were for your aboveground mines.
    Mr. Blankenship. Yes. They were--I think they were 
primarily for preparation plants and maybe also a surface mine.
    Senator Harkin. Well, I'm going to ask both of you this 
question. Now, we know that there are mines that have great 
safety records, very rarely have an accident, and, when they do 
have an accident, it's usually because of an individual who 
has, maybe, not followed the correct order or direction.
    But, why can't we take those mines, that have these 
excellent safety records and a culture of safety, and why 
doesn't Massey incorporate those into your mines? I mean, you 
would think that--if I was in business, in a hazardous business 
like coal mining, and I had other mines, maybe that weren't 
even--were not in my operation, were not in my company, but 
they had excellent safety records, and didn't have any 
problems, you'd think I'd want to adopt that.
    Mr. Blankenship. Well----
    Senator Harkin. And do you ever do that? Do you ever look 
what other mines are doing and say, ``They have a great safety 
record, maybe that's what we ought to be doing?''
    Mr. Blankenship. We're right on target with that. We 
volunteered, to the National Mining Association (NMA), that we 
would make our S1 Safety is Job One package, which has 120 
rules that exceed MSHA's rules, available on the Internet to 
everyone in the mining industry. And we did that.
    We also use good performing mines as templates to look at 
bad performing mines. Upper Big Branch had, like, a 5.8 NFDL 
rate in 2009. And this focus we put on it, as a result of our 
measurement and understanding of processes at the upper Massey 
level, brought that accident rate to zero in the first quarter 
of 2010, before this tragedy. So, we do use best practices. In 
fact, our S1 program is the accumulation of best practices that 
we've learned at well performing mines.
    Senator Harkin. Mr. Blankenship, I've been around long 
enough to know that you can have all kinds of fine things on 
paper, but unless they're actually executed on a daily basis, 
they don't mean much. You can have all kinds of fancy things on 
paper, but you said something earlier, to a question that 
Senator Byrd asked, and I wrote this down. ``We can't be at the 
mine daily.'' Neither MSHA or you can't be at the mine daily.
    I understand that. MSHA can't have an inspector in every 
shaft, in every mine, every minute of the day. You can't be 
there, either. That's why you have to have safety things set up 
that are self-perpetuating. You also need to have a system 
whereby, if a miner sees a violation, that miner, with all the 
protections that they have, can blow the whistle.
    Mr. Blankenship. And I couldn't agree more. In fact----
    Senator Harkin. Well--do you have a setup for a miner who 
sees a violation, that has complete anonymity, that they can 
report that violation without any fear of retribution 
whatsoever?
    Mr. Blankenship. Yes, we have an 1-800 number that they can 
call in anonymously. We tell our people----
    Senator Harkin. And where do they go to a phone to call 
that 1-800 number?
    Mr. Blankenship [continuing]. They can call it from 
anywhere. I mean, they can call it from their home, they can 
call it----
    Senator Harkin. Yeah. And then you can trace that and find 
out where that call came from.
    Mr. Blankenship. Well, I mean, I don't know that we can 
trace it. I don't know what we've got on there. But, the main 
thing is that our people are told, constantly, that they should 
never work unsafe. They sign a piece of paper, when they come 
to work for us, that they will neither work unsafe, nor 
participate in safety violations. I think we're doing pretty 
well, in that regard, by evidence of reducing from 8.0 to 0.79 
NFDL rates.
    We have tragedy on our hands, but we don't know why it 
happened. I believe there are things that the industry and MSHA 
need to do to greatly reduce the chance that would happen 
again. But, the idea that Massey or Massey's management or the 
great majority of Massey--you know, there's always somebody out 
there that does not care about safety is--untrue.
    Senator Harkin. Mr. Roberts?
    Mr. Roberts. I'd just like to point out a couple of things, 
if I might.
    One is that, not only have we experienced these 52 
fatalities, this horrendous situation at Upper Big Branch, this 
is the second disaster in 4 years at a Massey operation. And, 
quite frankly, I don't think too many companies are out there 
looking to copy what's going on at Massey and implementing that 
at their operations.
    The awards that Don talked about in his testimony, the 
Sentinel of Safety, it's true that MSHA awards that, but I 
think that's awarded jointly with the NMA, if I'm not mistaken.
    I want to speak to something that we've become aware of. 
And we raised this with Mr. Blankenship at his shareholders 
meeting, earlier this week. We have witnesses and people who 
work at Massey who tell us that, when you get when you get 
injured at Massey, or when you get to the emergency room, 
someone from human resources meets you there.
    And we've got one young man who had his finger cut off, and 
the person from human resources said to this young man, who, 
incidentally, worked at Upper Big Branch, ``You don't have to 
take time off here. You can come back to work, and we'll give 
you light duty. And that way we don't report this.''
    We also have evidence that they have at least one 
individual, that we know of, that has three broken bones in his 
back, and he's working at Massey. So, that's not a lost time 
accident at Massey.
    So, I think their statistics are borderline fraudulent 
here, when you're paying people who are hurt, and would be off 
any other coal mine in this Nation, and taking time off from 
work and getting workers comp or S&A benefits, and you're 
paying those people to come to work and say, ``Look what I've 
done.''
    And I think there's another important thing here, I--that 
is troublesome to us, is--in Mr. Blankenship's package that he 
has with the company, he gets a bonus for reducing lost time 
accidents. So, we take company money and we pay someone who's 
injured to come to work, and then Don gets a bonus because he 
reduced lost time accidents, then he gets an award from MSHA 
for this.
    Mr. Blankenship. Can I address that a little bit?
    Senator Harkin. Mr. Blankenship, you should have a chance 
to respond to that.
    Mr. Blankenship. Yeah. Contrary to what Cecil says, people 
in the industry copy us all the time. In fact, I'm interested, 
sometimes, in seeing, on television, how widely spread the 
straps are. The reflect-- or, the flappers on roof boulders 
that protect the roof boulder more than he would otherwise be 
protected, are Massey inventions that are everywhere. Red zones 
around highwall miners are everywhere. We've led the charge on 
proximity devices that we think will be everywhere.
    Many of the 120 rules that we've put in place--one of the 
most important being submarine kits that allow a dozer that 
falls down in a coal pile and gets covered up to be able to 
have lights and communication and breathing apparatuses--is a 
Massey invention that we know has saved lives, that's been 
adopted, not only by many other coal companies, but, in fact, 
by the Government itself.
    So, we've done many, many things that have been followed-up 
on by others. It's very common for companies to have light duty 
work. A guy that's going to get 60 percent of his pay to stay 
home, who has the tip of his finger cutoff, may choose that he 
wants to work as a dispatcher or something that he can 
productively do, rather than stay home. We don't require that. 
We can't require that. The law prohibits requiring that. But, 
in fact, we make that opportunity available to people who would 
want to choose to do that.
    I suspect and believe that many companies do that. I don't 
think it's a bad practice, so long as the guy can fully perform 
the job that's available for him.
    Senator Harkin. Is your mine organized? Is it represented 
by a labor union?
    Mr. Blankenship. We have very few union represented 
employees. We have probably 100, 120. This particular mine, at 
Upper Big Branch, was a former Peabody Union coal mine, that 
twice voted not to be represented by the mine workers. Many of 
the people there were still--you know, were former UMWA 
workers, but they weren't-- had not chosen to be members of the 
union at this time.
    Senator Harkin. I guess the one thing that just keeps 
nagging at me--I hear what you say about safety and all the 
things you're telling me, and I don't have an intimate 
knowledge of that, obviously; but then, when I wrote down here, 
52 miners died at Massey mines, 23 before the explosion, 29 in 
the explosion, 52 over 10 years, highest in the industry--I'm 
trying to square these two things.
    Mr. Blankenship. Well, the only thing that I can say is 
that, once you add the 29 in, it's a bad record. I feel 
terrible about it. I don't know, yet, what happened. When you 
look at the 23 we had, look at the difficult conditions--
underground conditions, and so forth--that we work in central 
Appalachia, we're about average, if you look at the number of 
fatals. We're a big producer, so absolute numbers, when you're 
producing 40 million tons a year, tend to get big, even with 
your best efforts.
    But, any fatality is unacceptable to us. There's not been a 
single fatality that we've not tried to make an improvement. 
We've had highwalls and surface mines fall on people; we've set 
up red zones with cones to prevent it. We've had people that 
were killed by a--you know, a piece of metal flap flipping up 
as they were running a car, and it would stab them; we've put 
doors on there to keep that from happening. We've had people 
that were--we've had several, as the industry has, fatalities 
where a miner operator is positioned in the--on the right side 
of the miner, and we've put up, without being required by law, 
$2 million a year worth of larger roof bolt plates, called 
``pizza pans,'' and we're the only people that I know that do 
that routinely to protect that miner.
    Cecil frequently calls that ``writing law or a policy in a 
coal miner's blood.'' We don't believe in that. But, we do 
believe in learning from accidents, and trying to do better. 
And that's what we intend to do at Upper Big Branch. And, as 
this investigation proceeds, that's my biggest objective.
    Senator Harkin. I'll have one last question, after I yield 
to Senator Byrd, and it's going to involve your comment about 
this open investigation by MSHA. So, I will return to that 
after I recognize Senator Byrd.
    Mr. Blankenship. Thank you.
    Senator Byrd. Mr. Blankenship, why, why, why so many 
fatalities at Massey mines?
    Mr. Blankenship. As I was alluding to earlier, we are 
probably about average, 23 at Massey, with, you know--I don't 
know the exact number, but call it 400 million tons during that 
period of time, would be the equivalent of, say, 50 across the 
industry, which is probably not far off the average. But, the 
issue, of course, is that mining in central Appalachia, mining 
in deep mines, mining in areas that we mine in, it's a real 
challenge. We meet that challenge as best as we're humanly 
capable of doing, and will continue to do so. We have 120 rules 
in place that exceed the law. We have invented, for another 
example, the ability to retrieve equipment from out from under 
a supportive roof, like a remote control miner, by being able 
to reactivate the tram remotely, which is another Massey 
invention.
    I could carry on here for hours about Massey inventions, 
trying to deal with the hazards of coal mining, believing that 
we have to engineer the risks out. And we have to work together 
with the Government and the company to find more opportunities 
to engineer the risks out of mining.
    Senator Byrd. Mr. Blankenship, Massey is not average. 
Massey is not average.
    Cecil, would you like to comment?
    Mr. Roberts. I've heard Don use this ``. . . 23 fatalities 
in 10 years . . .'' this is before Upper Big Branch-- as 
``about the industry average.'' And, for the life of me, I 
can't come up with another coal company that's had 23 miners in 
10 years die. And then he takes the amount of production and 
says that's how he gets to that.
    I think we have to look at the number of people who have 
been killed at a particular company, as opposed to saying, 
``Well, I mine x amount of tons, and I figured out some way to 
make that the average.'' That's not the average. That's 
unusual, it's unacceptable, and I wish Don would come to that 
conclusion, that we have to do better than this, and he has to 
do better than this.
    And then to have this terrible explosion take place at 
Upper Big Branch, on top of this--this is the worst fatality 
rate in the industry, either way you look at it. Either before 
the explosion or after the explosion, it's the worst. And I've 
just--have trouble with his calculations, here, that somehow 
this is the average. This isn't the average. This is 
deplorable, is what it is. It's not average, and it's not 
acceptable.
    Senator Byrd. Mr. Blankenship, I helped to write the laws, 
in 1969, 1977, and 2006, so I've been around awhile. Let me say 
it again. I helped to write the laws, in 1969, 1977, and 2006, 
to improve safety in our coal mines. The responsibility to 
comply with those laws is yours, Mr. Blankenship.
    How do you reconcile your assertion that safety is number 
one at Massey with the fact that your mine has had 48 
withdrawal orders, too many violations, and 52 deaths?
    Mr. Blankenship. I can tell you it's not an assertion. We 
work very hard to make safety job one at Massey. The violations 
that occurred in, essentially, the first half of 2009, when 
they came to the management's attention, we put two safety 
specialists at the mine. We formed a five person hazard 
elimination group, which also has two MSHA people, former MSHA 
people involved in it. We've met with MSHA to go over how we 
might proceed, in terms of all Massey hazards across the 
company. We worked very hard to deal with the violations at 
that coal mine, as we do at the other coal mines.
    We've spent tens of millions of dollars beyond the laws 
that you passed. I'm very appreciative of the laws that you 
have passed. I know these coal miners. I still interact with 
them. I'm probably the only major company CEO that still lives 
in the heart of them. I live at Sprigg, in Mingo County, West 
Virginia. I play basketball with them. I know their families. I 
looked them in the eye, on the night that we had to give them 
the bad news. I don't want to do it again. There's nothing that 
I can be accused of or nothing you can do to me that will make 
me want more than the feeling of having to inform family 
members of such a tragedy, to want to avoid it again.
    And I can assure you, despite what you read in the media 
many times, that Massey is very serious about dealing with 
safety violations and improving safety.
    Senator Byrd. Senator Harkin, thank you.
    Senator Harkin. Thank you, Senator Byrd.
    Senator Byrd. You have something else?
    Senator Harkin. Yes, I just have one more.
    You talk about the mine--that MSHA said the mine was in, 
quote, ``good condition.'' But, Mr. Main said that there is no 
such designation.
    Mr. Blankenship. Yeah, I was, oh, you're looking--I was 
stricken by the word ``certified.'' I would agree with Mr. 
Main, that they probably don't have a quote, ``certification'' 
of a good mine. But, it is reported to me, and I think people 
will testify that, on the closeout inspection, that MSHA 
thought that the mine had this--inspectors onsite and the 
management onsite agreed that the mine had been ``fixed,'' if 
you will, that the problems had been addressed, and they were 
appreciative of all the focus and effort that we had put into 
it.
    I had met with Mr. Main, I believe, in February 2010, just 
a couple of months before the accident, and asked the question 
of, ``What--is there anything we need to focus on, any big 
problem that you want us to deal with?'' I think that we all 
thought that we had moved this mine forward. I don't know, yet, 
because I don't know what happened, whether the violations, and 
the nature of violations, and so forth, contributed. So, we're 
anxious to find out.
    Senator Harkin. Now, one more time, Mr. Main also said that 
MSHA does not provide for plans for ventilation. They don't do 
that. Yet, you seemed to indicate, in your testimony, that MSHA 
provided some kind of plans for changing the ventilation 
system. So, then I want to get this straight. Did they provide 
you--did MSHA provide you with a planned ventilation system?
    Mr. Blankenship. I think that most people in the industry 
would agree that MSHA only approves the plan they want. An easy 
way of example for you, one of the things that Congress has 
allowed is scrubbers on continuous miners, which we all agree 
and as far as I know, no one disagrees with--the filters in--on 
continuous miners are an important part of holding down 
breathable dust. Yet, MSHA will not approve the use of 63 of 
our continuous miner scrubbers. So, therefore, we're not 
running them. That's not our plan, that's not our wish. We 
fully disagree with it. We've talked to them about it for a 
long time. We went public with the fact that they won't let us 
run the scrubbers. I offer that as evidence that they won't 
approve our ventilation plans. They force us to ventilate 
backward by not approving the plans. We prefer to ventilate on 
blowing air systems, they prefer that we ventilate on the 
exhausting air systems. The mines are not ventilated, nor are 
the scrubbers run, because MSHA won't allow it.
    Senator Harkin. Now you're in an area I don't know anything 
about, obviously.
    Mr. Blankenship. Yes, I understand.
    Senator Harkin. I don't understand all----
    Mr. Blankenship. And I apologize for that, but I----
    Senator Harkin. That's okay. All I'm saying is, What do 
other mines do? I mean, you're not a loner. We've got a lot of 
coal mines out there.
    Mr. Roberts, are you familiar with ventilation systems?
    Mr. Roberts. Somewhat. I'd let me try to pick up on where I 
think Don was going, here. But, there're two different issues.
    The scrubbers--those scrubbers are placed on continuous 
miners to remove the dust from the atmosphere. That's a health 
issue. That is so miners will not breathe excessive amounts of 
dust, and helps control the dust. Okay? It's not necessarily a 
safety issue that might that would lead to an explosion. That's 
two different things. The scrubbers, I would say, are for 
health purposes.
    Now, with respect to ventilation, every operator in the 
United States that has a coal mine, or wants to open a coal 
mine, has to submit a plan to ventilate that mine, to MSHA. 
MSHA either approves that plan or disapproves that plan.
    I don't know what Mr. Blankenship means when he says, 
``MSHA made us change our ventilation plan.'' And I'm still 
unclear about that. Those plans are the responsibility of the 
operators, and they're either approved or disapproved.
    Now, with respect--we shouldn't complicate this with the 
dust controls. That may very well be a legitimate debate, with 
respect to controlling the breathable dust. That's separate, 
distinct from ventilating the mine to keep float coal dust 
away, and also keeping methane out of the face. So, when he 
says, ``They made us change the ventilation plan,'' I'm still 
unclear exactly what he means now, and it's a little bit 
unclear of what he meant the other day. But, that's what-- the 
way the process works. He submits a plan--not necessarily him, 
but his engineers. And maybe MSHA disapproved of a particular 
plan they submitted, but MSHA doesn't come up with the plan.
    Mr. Blankenship. You know, I----
    Senator Harkin. Well, again----
    Mr. Blankenship.
    Mr. Blankenship. I consider that a play on words.
    First of all, the scrubbers can be a safety issue, because 
they will suck the methane out of the face, as well. But, I'm 
not pointing out the scrubbers as equivalent to the ventilation 
change. But, because it's a much simpler issue, and one that 
makes it clear that we don't decide what we can do, because we 
would run the scrubbers. We have, for my working lifetime at 
Massey, and they won't let us run them. So----
    Senator Harkin. I just don't understand that. But, there 
are other I keep coming back to this point--there are other 
mines----
    Mr. Blankenship. There are----
    Senator Harkin [continuing]. Just as deep as yours, just as 
big as yours, and they run ventilation systems, and I've never 
heard any problems about this.
    Mr. Blankenship. Well, you----
    Senator Harkin. So----
    Mr. Blankenship [continuing]. You could hear of problems if 
we don't allow the top industry people to have a major--a more 
major role in ventilating the coal mines. One of the big issues 
is whether you have EP points, or you don't. And I don't want 
to--I know that I could get too technical.
    But, the bottom line is that we're--when we submit the plan 
that we think is best for the ventilation of a room-and-pillar 
mine or a longwall, they deny it until we submit what they 
would like for us to have. And many times, it is not the plan 
that we prefer to have.
    Senator Harkin. I'll follow up on that with questions for 
you, but also with with-- MSHA also, on that.
    Mr. Blankenship. Thank you.
    Senator Harkin. I will send written questions, to get that 
fleshed out a little bit more.
    My last question, basically, is this; and that is, you 
talked about MSHA, you sort of alluded to the fact that they're 
investigating themselves, here, as pertains to this ventilation 
system. You mention that, and you say you don't know whether 
that played a role in the explosion--none of us know that yet--
you don't know. But, you allude to the fact that MSHA cannot be 
trusted to do this investigation, because they are kind of 
investigating themselves. Would you like to elaborate more on 
that? And, I'm going to ask Mr. Roberts, also. Are you saying 
that there should be a separate entity, other than MSHA, to do 
this investigation? And is there one that is qualified, in 
terms of mining safety, to do this kind of investigation?
    Mr. Blankenship. I think the qualifications would be very 
difficult, and I don't know that I have a particular entity in 
mind. But, you have situations, for example, where the NIOSH 
branch, that was represented up here today, seems not to agree 
with MSHA, for example, on the scrubs. But MSHA has that rule 
in place. I think that we need--as we are doing at Massey, by 
the way--go through the entire process of how our safety is set 
up, whether there's any, you know, validity at all to these 
accusations that people are afraid to call, whether there's any 
validity at all that we are understaffed. We're going through 
that entire independent review of our safety--our board is--as 
a way to make sure that we're right. We believe we're totally 
right, in terms of how we're structured and how we manage our 
safety department. I think MSHA needs to do that same thing. 
And I think companies that have a disagreement with MSHA about 
ventilation and scrubs, and so forth, need an appeal mechanism, 
where they can go and say, ``Look, this is what we want to do 
and this is what they want to do. Give us a chance to do it the 
way we think is best.'' So, I think there's room for that.
    And I don't know, in answer to your question, who exactly 
would be qualified to oversee this investigation. But, 
certainly we think it's in the best interest of the coal miner, 
the ones that I live among, to get a true, independent 
assessment of what happened here.
    Senator Harkin. Mr. Roberts, do you have any thoughts?
    Mr. Roberts. We--actually, I knew if we stood here--stayed 
here long enough, there might be something we would somewhat 
agree with. We--the UMWA asked MSHA and the DOL to conduct this 
hearing publicly. And the reason we felt that was so important 
was, number one, MSHA does not have subpoena powers in these 
closed hearings. So, what that means is, if they ask Don to 
testify, or they ask me to testify, I can either come or I can 
say, ``No, I don't want to.'' In a public hearing, the law 
gives MSHA the power to subpoena me, or subpoena Don, or 
anybody else they want to.
    In these private hearings, the miners' representative 
which, by the way, we are the miners' representative at Upper 
Big Branch, because the law is different for investigations and 
safety representatives than it is for representing people in 
collective bargaining--we have been asked, by miners at Upper 
Big Branch, to represent them in this investigation. In this 
investigation, we will not be allowed the union will not be 
allowed--to be in the room when witnesses are being 
interviewed. And we think that's not a good thing. We don't 
think it's a good thing for anyone. The families are not 
allowed to be in the room when these witnesses are being 
interviewed. If we have a public hearing, the families can be 
there, the miners' representative can be there, and anyone who 
would like to be could be there.
    Now, we've been told that the reason that they have decided 
to close these hearings is because of the Department of 
Justice's investigation. They have FBI agents--a lot of FBI 
agents in southern West Virginia, and I applaud that. But, I 
don't really see how having a public hearing, where whatever 
Massey Energy did, or whatever MSHA did, or whatever the State 
government did, could be considered, and we could learn from 
that, and we could learn immediately.
    The problem we've got here is none of us are going to see 
this evidence for a year. None of us are going to see what the 
witnesses said. But, I do want to step up, right now, and say I 
have full confidence in the Secretary of Labor, Hilda Solis. I 
think she was a fine appointment. And Joe Main worked for us 
for 30 years. And I said, in another hearing, that, before this 
is all over, people will be coming in here and saying, ``Joe 
Main is too tough on us.'' And I know that will happen, because 
he's aggressive, he has dedicated his entire life to protecting 
coal miners. And he will do that here. He will probably run the 
most thorough investigation we've ever seen. But I do think 
it's wrong to have this hearing in private, and all of us try 
to figure out traipse behind to figure out what happened. And, 
you know, I've got strong feelings about--and I've expressed 
them here today--but, I do think everyone's got a right to 
defend themselves. And I wouldn't deny that right to anyone. 
But, we're not doing that here, we're in a situation where this 
is going to be an investigation, and we're going to be part of 
it. We're going to go in the mine, when it opens, our people 
will, and we'll see what happened, with respect to where the 
explosion traveled, how much damage it did. We'll all try to 
come to an opinion with respect to that.
    But, trying to do that in isolation of knowing what the 
witnesses said, at the time this mine--right before it exploded 
there were miners who, I know personally, had to run out of 
this mine, and barely got out. We talked about the Davis family 
losing three family members. Tommy Davis, Cory Davis' dad he 
was in that mine and was running out and it blew him down. So, 
that family could have been hit with four family members, here, 
and perhaps five. There's a fifth young man in there that was 
the son of Timmy Davis. So, this could have been even worse 
than it was.
    But, we don't know--we've talked to people. Look, we talked 
to about 90 people here. But, we haven't--we're not going to be 
privy to these witnesses getting up on the stand. And MSHA--
they're not going to be subpoenaed. They don't have to come, 
and they don't have to talk. And I think that we need these 
people to be sworn in and everyone tell what they know, so we 
can get to the bottom of this and everybody know what happened 
here so there won't be any doubts about what anyone did here.
    Senator Harkin. Thank you very much.
    I know Senator Byrd had one last question.
    Senator Byrd. Thank you, Mr. Chairman.
    Mr. Blankenship, according to the news media, a major 
source of the gas buildup at the Upper Big Branch mine, may 
have come from a coal shaft that had never been properly 
sealed. According to one article, quote, ``Rags and garbage 
were used to create a poor man's sealant''--S-E-A-L-A-N-T 
``which allowed methane to permeate the mine, displacing much 
needed oxygen.''
    Mr. Blankenship. I've seen that same report, followed up on 
it. As best I can figure out, it's not the case of the hole, or 
the shaft, you're speaking of was a hole that was for the 
purpose of transporting coal from a mine above it that was no 
longer in use. And it was filled with coal and rock, and 
inspected by MSHA. And, as I understand, it was fine. There 
were, to my understanding at this point and I want to be 
careful not to rule out any source of the methane this early--
it's my understanding that it's highly unlikely that that hole, 
which was sealed with coal and rock, would have played any role 
in this explosion.
    Senator Byrd. What other irregular ventilation is allowed 
at Massey mines?
    Mr. Blankenship. Well, I don't know of any irregular 
regulation. We ventilate our mines as best we know how, to the 
extent that MSHA will allow us to ventilate that way. And then 
we do our best to, in concert with MSHA, come up with safe and 
healthy ventilation plans.
    Our mines, as you know, Senator, in central Appalachia, are 
different than they are in Pennsylvania. We have a lot of--a 
lot more overmining and undermining, and we have to be worried 
about positive and negative pressures of the air, drawing bad 
air out of other mines. And we prefer, as I said earlier, 
blowing ventilation on our miner sections. And we certainly 
prefer running our scrubbers. And we believe that there are 
many things that can be done to improve, or lessen, I should 
say, the likelihood of this type of thing happening again. And, 
in many cases, there are things that we can't do. We need to do 
a better job regulating gas wells in these regions. We need to 
do a better job of mapping, which was one of the events at Q 
Creek. There're a lot of things that need to be done that can 
only be done, if you will, by the Government or the regulatory 
agencies.
    But, as far as that hole, in particular, I don't think that 
it contributed to the explosion. But, that'll be part of the 
investigation.
    Senator Byrd. Mr. Blankenship, what recordkeeping system 
exists to corroborate your testimony?
    Mr. Blankenship. I don't know which piece of my testimony 
you're referring to, but let me say that when I saw the rate of 
violations that were occurring in 2008, post the new MINER Act 
and so forth, we enacted an effort to really well measure what 
our violations were. And we had a very difficult time, using 
the combination of our data internally and the MSHA Web site, 
figuring out what our violation count was. It took us a good 
time--a good amount of time to figure that out so we could 
apply the resources in the right place to reduce violations. 
And we did that.
    But the records on NFDL rates, the records on the what 
we've done on safety innovation and the 120 rules--and so 
forth--are all there for reviewing, if and when that is, you 
know, appropriate.
    Senator Byrd. Mr. Chairman, I want to thank Mr. Roberts and 
Mr. Blankenship for their testimony.
    Mr. Blankenship. Thank you, Senator.
    Mr. Roberts. Thank you.
    Senator Harkin. I join you, also, in thanking you both for 
being here.
    And, you know, we all know that mining is a dangerous 
occupation. Anytime you go below the ground and you're dealing 
with explosives, you're dealing with all of the things that 
face miners, it is a hazardous occupation. But, that's why, 
over the years, we've tried to do everything we can to put 
policies in place to lessen that, to make it so that--like Mr. 
Roberts said, so that people don't write letters saying, 
``Well, I hope I see you tonight.''
    Perhaps you can't get 100 percent assurance, but you can 
get 99 percent. And we've got to do everything we can to make 
sure that miners are protected from these kinds of tragedies.
    So, we'll look at what we need to do at MSHA, what we need 
to do legislatively, here to address this. We are, of course, 
like you, anxious to see the outcome of the investigation.
    I am going to talk to the SOL about what both of you said 
in open proceedings and the issuing of subpoenas in open, which 
you can't do in private. I will talk to the SOL about that and 
try to get that input, also.
    But, I just well--I feel like Senator Byrd, we just can't 
keep coming back here all the time, and having something happen 
to miners. We just can't keep doing this. I mean, I've only 
been here 25 years. And it just seems like, about every 5 
years, we've got something--we've got to come back here, miners 
have died. They've died in tragic accidents. And we say, 
``Well, we're going to fix it.'' And then something like this 
happens, the worst one in 40 years. With all of the modern 
technology we have, with all of the knowledge we've accumulated 
over the years as to safety precautions that need to be taken, 
with all that, 29 miners lose their life.
    I just don't want--we just don't want to keep coming back 
to this. We have to get in place, for miners, safety measures 
that they can rely on. And that's really the basis of what 
we're trying to do here.
    So, I appreciate your testimony. But, this subcommittee 
will not rest until we change some of these processes and 
procedures, and look at what we need to do to make sure that 
this accident, this kind of tragedy, doesn't happen again.
    I don't doubt, for a minute, Mr. Blankenship--I don't 
doubt, for one minute, that you feel badly about what happened, 
that you don't care about your people. Of course you do. And so 
does Mr. Roberts. I've known Cecil for many years. I know how 
deeply he cares about the people he represents, the UMWA.

                     ADDITIONAL COMMITTEE QUESTIONS

    Sometimes, caring is not enough. I know you care. I don't 
doubt that for a minute. But, it's looking at the policies and 
procedures that-- what is implemented. It's a culture of 
safety, and when you have hazardous conditions like that, of 
making sure that everyone understands that safety must come 
first. It must come first. Not how much coal you've produced. I 
understand you've got to make money. And I understand we need 
the coal for energy. We all know that. But, in this kind of a 
thing, safety has to be the first thing that comes first.
    And, like I said, I know you care, I know Cecil cares, and 
we all do. But, we've got to change something here to make sure 
it doesn't happen again.
    Thank you both for being here.
    Mr. Roberts. Thank you.
    Mr. Blankenship. Thank you.
    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
               Questions Submitted to Hon. Joseph A. Main
               Questions Submitted by Senator Tom Harkin
    Question. Mr. Main, I applaud the blitz inspections that you 
ordered last month. As you've said, inspectors can't be in all parts of 
every mine, every day, on every shift, so the Mine Safety and Health 
Administration (MSHA) must be smart about how it implements its 
inspection activities. How many additional ``blitz inspections'' will 
you conduct under your current budget and the 2011 budget request?
    Answer. From April 19-23, 2010, MSHA conducted impact inspections 
(``blitz inspections'') at 57 targeted underground coal mines whose 
history of underground conditions indicated a significant number of 
violations related to methane accumulations, ventilation practices, 
rock dust applications, and inadequate mine examinations. Unlike the 
statutory inspections that are conducted of the mine in its entirety, 
MSHA focused on conditions associated with an explosion, i.e., methane, 
mine ventilation, and rock dusting, and captured the phones to prevent 
advance notification of MSHA enforcement presence at the mine. MSHA 
issued 1.454 citations, closure orders and safeguards to those 57 coal 
mines. MSHA also conducted impact inspections at other coal mines and 
expanded impact inspections to include metal and nonmetal mines with 
violation histories indicating hazardous conditions where injury or 
death could result from ground control, fire protection, safe access, 
or explosives storage. During the period of May 3 through 6, MSHA 
issued 534 citations and orders to 15 metal and nonmetal mines.
    MSHA intends to conduct additional blitz inspections during the 
remainder of this fiscal year and in fiscal year 2011 on an as-needed 
basis.
    In addition to focusing on mines with violations that indicate a 
history of particular conditions, future blitz inspections will also be 
conducted in tandem with MSHA's pattern of violations program. MSHA is 
currently working on reforms to the administrative guidance on the 
pattern of violations screening criteria to better reflect the intent 
of the act. These changes can be implemented prior to the completion of 
current rulemaking and any possible legislative reforms. I have 
directed MSHA staff to evaluate how we can enhance the pattern of 
violations program with use of blitz inspections to broaden the net on 
problem mines and noncompliant operators.
    We are currently in the formative stages of planning and have not 
yet determined the scope of these inspections, the specific number we 
plan to conduct, the resources necessary to support these efforts, and 
how to utilize blitz inspections within our budget request for 2011 
while continuing to ensure that we complete all regular mine 
inspections.
    Question. Mr. Main, I have been working with the Department of 
Labor (DOL) on the issue of worker injury under-reporting in the 
context of the Occupational Safety and Health Administration. As a 
result, DOL is now doing additional work to better understand research 
that points to a potential undercount of worker injuries as reported by 
employers. Can you shed some light on this issue in the mining industry 
and actions MSHA is taking or considering to ensure that injury counts 
obtained by operators are reliable and fully representative of the 
incidence of injuries in the industry?
    Answer. MSHA requires mine operators and mining contractors to 
report all injuries and occupational illnesses which result in death, 
days away from work, or days of restricted work activity. MSHA 
inspectors periodically conduct audits to ensure that the information 
submitted to MSHA is complete and accurate. These audits include a 
review of mine tiles; interviews with management, miners, and 
representatives of miners; and a comparison of reported injuries with 
workers compensation records when they are available.
    MSHA recognizes that some mine operators under-report injuries and 
occupational illnesses. What we don't know is the extent of under-
reporting. One of the challenges to fully understanding the problem and 
identifying under-reporting is that our audit program is conducted by 
inspectors, and an increase in our audits would redirect resources from 
the other critical work of regular mine inspections. We have particular 
concerns about the completeness and accuracy of reporting by mining 
contractors. Under current regulations, contractors do not report on a 
mine-by-mine basis, making the data they provide less useful and less 
amenable to a meaningful audit. Contractors perform considerable work 
in the mining industry and information on man-hours worked is necessary 
to determine the rate of injuries, illnesses, and deaths by 
contractors.
    However, we are not waiting for legislation to attack this problem. 
To better understand the scope of the problem of under-reporting. DOL 
is launching a study of injury and illness reporting by the mining 
industry, which will lead to a better understanding of the problem, and 
ultimately to better injury and illness data. The study is being funded 
through the Departmental Management Evaluation Fund.
    MSHA will use the findings of this study to ascertain the degree to 
which operators and contractors currently report injuries and illnesses 
and determine the need for additional training, audits, and 
enforcement. Improving reporting of injuries will have a direct, 
positive impact on worker safety. In the interim, MSHA will continue to 
conduct part 50 audits and take enforcement actions whenever 
appropriate.
    Question. Would you please provide more details on the better 
operational and emergency response needs that you have identified for 
additional investments? Please explain the specific needs and 
associated costs.
    Answer. MSHA has performed a detailed assessment of the gaps in 
mine emergency response, including the response of mine operators and 
Federal and State governments. Several critical areas need to be 
improved to increase the probability of successfully rescuing miners 
during a mine emergency. MSHA provides specialized mine emergency 
response equipment and mine rescue teams to assist in mine emergencies. 
The equipment that MSHA provides includes an Incident Command Vehicle, 
Mobile Gas Chromatography Laboratory, Miner Location System, 
Communication Vehicle, Mine Rescue Robots, etc. Investments in 
technology and equipment will improve our capabilities and allow us to 
locate equipment in geographically diverse areas, significantly 
improving response time. Since actions in the first few hours of a 
rescue can dramatically improve the chance of a successful outcome, we 
arc proposing to establish equipped trailers with basic first-response 
equipment in each of our 11 coal district offices and to establish 
caches of additional supplies in 2 field locations. We are also 
proposing to establish capabilities to analyze mine gases in 4 
geographically dispersed locations. The total cost of this equipment is 
estimated at $700,000.
    In order to improve coverage, we are also proposing to add one 
equipped mobile gas laboratory and mobile engineering office in Denver, 
Colorado or Price, Utah. Currently, this equipment must be transported 
from the eastern stations. This would dramatically improve the response 
time to many mines in the Western United States. The total cost is 
estimated at $700,000.
    Continuous, secure, and rapid voice and data communications is 
critical from initial deployment to a mine emergency until the 
operation concludes. Communication between responders, rescue teams, 
and district and headquarters offices need to be constantly maintained, 
so that the best available expertise can be applied as rapidly as 
possible, and decisions are made considering all available data. Many 
mining operations are in remote areas where cellular phone coverage is 
not available, and radio communication is challenging due to extreme 
topographic conditions. Further, communication must be secure to 
prevent the dissemination of misinformation to the families of trapped 
miners and the public at large. We are proposing fully equipped 
communication vehicles for the eastern and Western United States, with 
secure communications, including phones, radios, networking 
capabilities, teleconferencing, etc. The total cost is estimated at 
$1,075,000.
    We are also proposing maintenance and upgrades to our existing Mine 
Emergency Operations fleet. This includes the Command Vehicle, 
Engineering Trailer, an electrical generator power supply vehicle, a 
trailer for mine rescue robot storage and transport, replacement of 
obsolete mine emergency operations computers, etc. The total cost is 
estimated at $705,000.
    I held a national mine emergency response conference with the 
mining industry on May 11, 2010 to address gaps in Government, 
industry, and mine rescue team response. Since it takes hours to 
transport MSHA mine emergency equipment when an emergency strikes, the 
need for the mining industry to quickly provide additional mine 
emergency resources to fill the gaps was addressed at the conference.
    Question. Also, please describe how MSHA has utilized its increased 
appropriation over the past 3 years for these purposes in terms of 
specific upgrades and expenditures.
    Answer. MSHA's appropriations increases were used for the 
following: In fiscal year 2007, MSHA purchased Self-Contained Self 
Rescuers (SCSRs) for $200,000 and two mine emergency trucks for 
approximately $560,000. In fiscal year 2008 and early fiscal year 2009, 
MSHA expended $485,000 to purchase Mine Emergency Unit equipment, 
including SCSRs, Biopacks, multigas detectors, radios, and cap lamps, 
for the Pittsburgh, Beckley, and Price rescue stations. The purchase 
upgraded outdated equipment and replaced consumables to meet the 
critical need to have supplies available wherever the MSHA coal mine 
rescue team may suddenly be asked to deploy. In fiscal year 2009 MSHA 
purchased seismic equipment including: a truck designed to carry 
seismic equipment, system recorder, software, and a computer for use 
during mine emergency response. MSHA let a contract to re-write the 
system software so that it would he usable with new operating systems. 
Cost for upgrades in fiscal year 2009 totaled $302,000.
    Question. For each of the past 5 years (including the current year 
to-date,) how much funding has been allocated from DOL using the 
authority provided in MSHA's appropriation to spend funds on the costs 
of mine rescue and survival operations in the event of a major 
disaster?
    Answer. MSHA has not received any funding from DOL under the cited 
authority in the last 5 years.
    Reviewers note: MSHA's appropriation language states ``. . . and 
any funds available to the Department of Labor may be used with the 
approval of the Secretary, to provide for the costs of mine rescue and 
survival operations in the event of a major disaster.''
    Question. How has MSHA utilized the authority provided in the 
appropriations bill to promote health and safety education and training 
in the mining community through cooperative programs with States, 
industry, and safety associations?
    Answer. MSHA promotes health and safety education through a variety 
of cooperative programs. The MSHA State Grants Program provides funds 
to assist States in mine safety-related activities as provided in 
section 503 of the Mine Act. In fiscal years 2008, 2009, and 2010, 
MSHA's annual award to States in the program was $8,441,000. The State 
grant provides health and safety training in 49 States and the Navajo 
nation. Annually, the grantees provide training to approximately 
225,000 miners. This training includes new miner and annual refresher 
training as well as specialty topics including mine rescue training.
    The Brookwood-Sago Mine Safety grant provides funds for targeted 
educational and training programs and materials exclusively developed 
for mine emergency preparedness. Since fiscal year 2007, $500,000 
annually has been made available for these grants.
    MSHA assists the Joseph A. Holmes Safety Association, a nonprofit 
association created in 1916, to promote health and safety in the mining 
industry, by providing technical assistance in coordinating efforts 
through grass roots safety and health programs and activities to the 
mining community. The organization is comprised of representatives from 
mine management and labor, State and Federal Government, academia, and 
vendors. This program recognizes exemplary safety records both 
corporately and individually and presents nationally recognized awards.
    Question. How much funding would be used under the 2010 
appropriation and 2011 request for this purpose?
    Answer. MSHA's State Grant Program will provide $8,441,000 in 
grants to the States in fiscal year 2010. The fiscal year 2011 request 
continues this amount for State grants. In addition, MSHA will provide 
$500,000 in Brookwood-Sago grants in fiscal year 2010, and is 
requesting the same amount for fiscal year 2011.
    Question. How will these activities specifically help miners report 
safety and health problems without fear of reprisal?
    Answer. A major issue for MSHA is to ensure all miners are aware of 
their rights afforded to them under the Mine Act and have the 
opportunity to exercise those rights without fear of reprisal. Upon my 
confirmation, I began a review of miners' rights protection programs 
carried out by MSHA to improve those. Our activities in this area have 
included improving inspectors' response to health and safety 
complaints, speeding up investigation and action on discrimination 
complaints filed by miners, and providing improved training to miners 
on their rights and protections afforded by the Mine Act. Currently, 
MSHA is in the process of updating existing Miners' Rights materials 
and developing new online content as well as a Miners' Rights DVD. 
These materials will be distributed to all grantees for inclusion in 
their training. As with previous initiatives, we will ask the grantees 
to utilize these materials in support of the Department's new strategic 
plan, including the ``Voice in the Workplace'' outcome goal. Since the 
grantees provide training for a large number of miners, we are 
confident that the Miners' Rights training conducted by the grantees 
will provide miners with a better understanding of their rights and 
protections. We are also making these materials available to miners and 
operators and will be distributing copies to other instructors and 
organizations who conduct miner training. We will continue to look at 
innovative ways to educate miners on their rights using MSHA-developed 
materials, including through our grantees.
    Question. Lastly, the 2010 appropriations bill encouraged MSHA to 
consider a comprehensive review of safety and health programs. Please 
describe the actions taken and planned for this review.
    Answer. The agency continues to review health and safety programs. 
To date in fiscal year 2010, personnel from MSHA's Educational Field 
Services (EFS) made 3.692 visits to mines, facilities, and training 
centers. Their main focus is to observe work practices, review, and 
evaluate training plans and programs and monitor instructors, making 
recommendations for improving miner health and safety. Also, to ensure 
MSHA-approved instructors are providing our miners with quality 
training, the EFS personnel and contractors hired to specifically 
evaluate MSHA-approved instructors have evaluated more than 776 
instructors this fiscal year.
    Also, this fiscal year the Small Mines Office (SMO), which focuses 
on mines with 5 or fewer people, has helped 1,600 small operators 
develop and maintain a safety and health program. During each SMO 
visit, specialists use a safety and health audit to show the most cited 
standards at their type of mining operation. The field specialists 
assist mine operators at mine sites to identify conditions that are out 
of compliance or those conditions or practices that require maintenance 
or management controls to ensure compliance. In addition, they explain 
miners' rights to the operators. In the fiscal year 2011 budget, MSHA 
plans to redeploy the work of the small mines office to its district 
offices to provide better geographic coverage and increased 
efficiencies in providing these services to small mines.
    To ensure operators are providing effective training MSHA will 
continue evaluating instructors and training programs.
    Question. MSHA has the authority to retain up to $1,000,000 in fees 
collected for the approval and certification of equipment and use the 
fees for the same purposes. How much was collected under this authority 
last year?
    Answer. MSHA collected a total of $1,125,000 in fees during fiscal 
year 2009. Of the total, MSHA retained $1,000,000 and used these fees 
for mine equipment certification and approval. MSHA returned the 
remaining $125,000 to the Treasury.
    Question. Could additional fee collection help support more timely 
approval and certification of mine equipment, without depressing 
interest in research and development in this field? If so, what would 
be an appropriate level for 2011?
    Answer. An expanded budget authority to retain fees could allow 
MSHA to further reduce the current backlog of approval applications and 
expedite the process for the approval and certification of equipment 
and materials. The additional authority could support infrastructure 
improvements and state-of-the-art testing of equipment to more 
efficiently conduct approval testing and quality control auditing of 
equipment and materials. The subcommittee may consider increasing the 
level of retained fee collections to $1,500,000 for fiscal year 2011.
    Question. Please indicate the current status of MSHA 
recommendations contained in DOL Inspector General reports over the 
past 4 years. For any open recommendations, please explain why they are 
not yet closed.
    Answer. The following is the status of MSHA recommendations 
contained in DOL Inspector General reports over the past 4 years.
Report 05-08-003-06-001--Crandall Canyon Mine
(Total 9 recommendations: 6 closed, 3 open)
    Rec. Establish explicit criteria and guidance fir assessing the 
quality of and potential safety risk associated with, proposed plans.
    MSHA has worked closely with the National Institute for 
Occupational Safety and Health (NIOSH) in the past to formulate a 
pillar recovery risk factor checklist. A study, which has been 
completed contains specific recommendations concerning the mining of 
barrier pillars, splitting pillars at deep cover, burst assessments, 
etc. In conjunction with the study, NIOSH has also revised the Analysis 
of Retreat Mining Pillar Stability (ARMPS) software, which will affect 
the MSHA evaluation of certain aspects of deep cover pillar plans. 
While MSHA has been briefed on certain aspects of the study and the 
changes to ARMPS, explicit criteria and guidance for assessing proposed 
plans have not been formalized due to the lack of a final NIOSH report.
    NIOSH presented a workshop on the new ARMPS software to Roof 
Control Division (RCD) personnel and Coal Mine Safety and Health 
(CMS&H) Roof Control Supervisors at the MSHA Academy. This allowed both 
MSHA enforcement and Technical Support personnel a final opportunity to 
comment on the new ARMPS software prior to its release. In our opinion, 
it is an improvement over the current version, especially in the area 
of deep cover pillar retreat mining. Once the new ARMPS software is 
released, the RCD will be in a position to establish/update criteria 
for assessing the potential safety risk associated with proposed mining 
plans. The projected completion date for the issuance of MSHA guidance 
is 60 days after the release of the new ARMPS software and the NIOSH 
report to Congress.
    Rec. Issue policy and guidance on the use of computer models, 
including appropriateness of input values and use of model results.
    MSHA has worked closely with West Virginia University (WVU) on 
computer model guidance and issued a Program Information Bulletin, 
``Precautions for the Use of the Analysis of Retreat Mining Pillar 
Stability (ARMPS) Computer Program'' (PIB P08-08). WVU is nearing 
completion on their project to develop guidelines for the use of 
LAMODEL (LAMODEL is software used for calculating stresses and 
displacements in coal mines). The end result of this WVU project will 
be the publication of a user's manual and a workbook for LAMODEL. The 
projected completion date for MSHA's policy/guidance is 60 days after 
the issuance of WVU's user's manual and workbook for LAMODEL. 
(Projected completion: July 30, 2010.)
    Rec. Establish a Memorandum of Understanding with the Bureau of 
Land Management to share inspection or other information on mine 
conditions affecting safety.
    MSHA did enter into a Memorandum of Understanding (MOU) with the 
Bureau of Land Management (BLM) April 8, 2008, to share inspection or 
other information on mine conditions affecting safety. As recommended 
by the OIG, MSHA has contacted BLM officials to discuss potential 
revisions to the MOU. Areas under discussion include extending the MOU 
to include surface coal mines and to address areas of mutual concerns 
such as subsidence monitoring, coal bed methane, ground control, etc. 
(Projected completion: August 31, 2010.)
Report 05-09-002-06-901--American Coal Company
(Total 5 recommendations: 2 closed, 3 open)
    Rec. Establish a written plan for eliminating the current backlog 
of overdue mine plan reviews and maintaining timely reviews in the 
future.
    MSHA took corrective actions to address backlogged mine plan 
reviews and maintain a timely review process. Additional guidance and 
staffing plan were issued to districts through CMS&H Memo No. HQ-09-
048-A (ORM-8). ``Complaints Received from American Coal Company 
Complaint #1: Timely Mine Plan Approval.'' Data summarizing the status 
of backlogged plan reviews (reduced by 78 percent as of February 2010) 
was provided to the OIG for their review.
    Rec. Issue a written policy or, if necessary, pursue legislation to 
establish the basis far and circumstances under which inspectors are 
not required to comply with tracking requirements of ERPs during an 
inspection.
    The General Inspection Handbook and the Hazard Condition Complaint 
Handbook (and related HCC database) will be revised to include the 
requirement that inspectors document in their notes compliance with 
CMS&H Memo No. HQ-09-049-A (ORM-8). (Projected completion: September 
30, 2010.)
    Rec. Issue written guidance to its inspectors and to mine 
operators, consistent with existing laws and regulations that clarify 
its policy regarding the proper evaluation of a bleeder system.
    MSHA has developed and drafted guidance (multiple Program Policy 
Letters (PPLs)) on ``Effective Bleeder Systems.'' Because of their 
technical nature, they are undergoing extensive Agency review. 
(Projected completion: July 30, 2010.)
Report 05-08-002-06-001--Chargeable Fatalities
(Total 7 recommendations: 3 closed, 4 open)
    Rec. Develop and implement a standard protocol for first 
responders.
    Rec. Establish and require a standard investigative protocol for 
all reported fatalities.
    Rec. Require that a chargeability determination be made only at the 
conclusion of a complete investigation and considering all pertinent 
and available evidence.
    Rec. Establish a system to assure that all facts and information 
used to reach a chargeability decision are supported by documentation.
    MSHA implemented corrective actions to address the above 
recommendations. The written protocols were also formally incorporated 
into a revision of MSHA's Accident/Illness Investigations Procedures 
Handbook. Issuance of the Handbook was delayed in order to incorporate 
additional revisions resulting from a change in the issuance of orders 
under sections 103(j) and (k) of the Mine Act, as well as formal 
bargaining with the National Council of Field Labor Locals (NCFLL). 
(Projected completion for issuance of the revised Al Handbook: July 30, 
2010.)
Report 05-08-001-06-001--Underground Inspection Mandate
(Total 7 recommendations: 6 closed, 1 open)
    Rec. Ensure policies and procedures are developed for calculating 
the regular safety and health inspection completion rate and ensuring 
the inspection data used is correct.
    MSHA implemented corrective action to address the above 
recommendation. The written protocol will also be formally incorporated 
into a revision of the Program Policy Manual (PPM), (Volume I, section 
103, Inspections, Investigations, and Recordkeeping). (Projected 
completion: September 30, 2010.)
Report 05-06-006-06-01--Hazardous Condition Complaint Program
(Total 13 recommendations: 10 closed, 3 open)
    Rec. Ensure that the expectations of timeliness for completing 
evaluations of hazardous condition complaints under the Mine Act, 30 
CFR 43, and MSHA policy are consistent and quantified in specific terms 
(e.g., number of hours).
    Rec. Ensure that the expectation of timeliness for beginning 
inspections of ``imminent danger'' allegations is quantified in 
specific terms (e.g., number of hours), and the subsequent inspections 
are started within those specific timeframes.
    A protocol has been developed to address the timeliness of both the 
evaluation of hazardous condition complaints and the investigation of 
imminent danger allegations. This written draft policy is currently 
under management review. Once finalized, it will be incorporated into 
the Hazardous Condition Complaint (HCC) Handbook. (Projected 
completion: September 30, 2010.)
    Rec. Ensure inspector notes receive appropriate supervisory review.
    MSHA implemented corrective actions to address the above 
recommendation. The written protocol will be incorporated into a 
revision of the HCC Handbook. (Projected completion: September 30. 
2010.)
    Question. This subcommittee has supported the work of the Office of 
Accountability, which provides oversight and examination of MSHA 
enforcement programs to ensure that its policies, procedures, handbooks 
and guidance are being consistently applied. What have been the major 
findings of the Accountability Office's audit activities and have the 
corrective actions that have been implemented to address these findings 
resulted in expected improvements?
    Answer. MSHA provided a report on the work and findings of the 
Office of Accountability and the corrective actions taken to the 
subcommittee in March 2010. A copy of that report is attached.
    Question. How much funding is planned to be allocated to this 
office under the 2011 budget request and how many audits would be 
supported at this resource level?
    Answer. The Office of Accountability is located in the Program 
Administration budget activity. MSHA plans to allocate approximately 
$600,000 in fiscal year 2011 for this office. MSHA is currently 
evaluating the restructuring of the agency accountability audit 
functions to assure that targeted areas are effectively audited.
    At this resource level, the Office of Accountability expects to 
conduct 24 accountability audits during fiscal year 2011.
    Question. For each of the past 5 years, please provide the number 
of technical specialists by type available for duty.
    Answer. MSHA has a wide variety of specialists, and each is a 
distinct discipline. Even between Coal, Metal and Nonmetal (MNM) and 
Technical Support, the work to be performed is very different. For this 
reason, we have reported the number of specialists for each of these 
programs separately. As of May 31, 2010, MSHA has the following 
positions in the Coal program:

                        COAL SPECIALIST POSITIONS
------------------------------------------------------------------------
                                                              Amount
------------------------------------------------------------------------
Underground:
    Electrical..........................................              59
    Health..............................................              56
    Roof control........................................              51
    Special investigation...............................              17
    Ventilation.........................................              54
Surface: Impoundment....................................              21
                                                         ---------------
      Total, coal specialist positions..................             258
------------------------------------------------------------------------

    MSHA is unable break down the number of underground coal 
specialists by expertise for past fiscal years, but can provide the 
following totals for underground and surface impoundment specialists 
for prior years:

------------------------------------------------------------------------
                                                              Surface
                                            Underground     specialists
                                            specialists    (impoundment)
------------------------------------------------------------------------
9/30/2009...............................             213  ..............
9/30/2008...............................             176              14
9/30/2007...............................             160              13
9/30/2006...............................             156              14
------------------------------------------------------------------------

    Metal and Nonmetal had specialists in the following positions as of 
September 30 of each of the following fiscal years:

                                     METAL AND NONMETAL SPECIALIST POSITIONS
----------------------------------------------------------------------------------------------------------------
                                       2006            2007            2008            2009          2010 \1\
----------------------------------------------------------------------------------------------------------------
Safety..........................               6               6               7               7               6
Health..........................               6               6               6               6               4
Industrial hygienist............               3               3               1               2               3
                                 -------------------------------------------------------------------------------
      Total.....................              15              15              14              15              13
----------------------------------------------------------------------------------------------------------------
\1\ As of May 31, 2010.

    Technical Support had the following positions split between its 
Approval and Certification Center and Pittsburgh Safety and Health 
Training Center, as of September 30 of each year:

                                     TECHNICAL SUPPORT TECHNICAL SPECIALISTS
----------------------------------------------------------------------------------------------------------------
                                       2006            2007            2008            2009          2010 \1\
----------------------------------------------------------------------------------------------------------------
Electrical engineers............              21              22              20              22              22
Electronic technicians..........               1               1               1               I               1
Mechanical engineers............              15              15              14              15              15
Mining engineers................              20              19              17              16              18
Industrial engineers............               2               2               2               2               2
General engineers...............              30              28              29              32              31
Civil engineers.................              19              19              19              19              19
Chemical engineers..............               1               1               1               1               1
Fire protection engineers.......               2               2               2               3               2
Engineering technicians.........              20              18              18              20              18
Physical scientists.............              12              10              11              12              12
Physicists......................               1               1               1               1               1
Physical science technicians....               7               7               7               7               7
Chemists........................               7               7               6               4               4
Geologists......................               3               3               3               3               3
Mine safety and health special-                4               4               4               3               3
 ists...........................
Industrial hygienists...........               5               5               5               5               5
Mining equipment compliance                    5               5               5               5               5
 specialists....................
                                 -------------------------------------------------------------------------------
      Total.....................             175             169             165             171             169
----------------------------------------------------------------------------------------------------------------
\1\ As of May 31, 2010.

    Question. How does MSHA ensure that such staff are available in 
sufficient number and with appropriate skills and support to carry out 
their important functions?
    Answer. The District Manager determines the need, area of expertise 
and projected workload on an annual basis and then works with the 
Administrator, Deputy Administrator, and Management Officer on the 
skill sets and needs, justifications, and budget allocations for 
additional personnel. The program area consults with the Budget Office 
and once approved at the Administrator level, the program area submits 
the justification to the Office of the Assistant Secretary for filling 
a new position and/or backfilling another position. Once the approval 
is received from the Assistant Secretary, MSHA begins the process for 
filling the vacancy.
    In MNM, each district is approved for one specialist of each of the 
three types (Safety, Health, and Industrial Hygienist). For example, 
the Rocky Mountain and North Central Districts do not currently have 
Industrial Hygienists working full time on this work, but assign 
specialist work as an ancillary duty to qualified employees currently 
performing other functions. An annual health conference is conducted 
for review, education and planning.
    In Coal, districts submit justifications for requests to hire 
directly to headquarters. Justifications include the rationale for the 
need, i.e. backfill due to attrition and ratios of the number of mines, 
mechanized mining units (MMUs), etc., to inspector or specialist. 
Headquarters reviews the justification and approves or rejects. Most 
often, specialist positions are filled from within the current 
inspector ranks; therefore, they are already seasoned journeymen 
inspectors. Vacancies specify the discipline or expertise that the 
district is seeking. Occasionally, most often when seeking an engineer, 
a vacancy is advertised to the ``outside'', that is a non-MSHA 
employee.
    Question. What level of support for such positions is provided in 
the current budget and under the 2011 budget request?
    Answer. MSHA's fiscal year 2010 budget includes funding for the 
current staffing as well as 4 specialist vacancies in Coal, 6 vacancies 
in MNM, and 12 in Technical Support. The fiscal year 2011 budget 
request contains the same amount of funding. The total number of 
specialists in the proposed fiscal year 2011 budget are 262 specialists 
in Coal, 18 in MNM, and 181 in Technical Support.
    Question. Lastly, what are MSHA's policies and procedures for 
completing review of mining plans, such as ventilation and roof control 
plans, which afford the highest level of safety and health for miners?
    Answer. Mining plans, submitted by operators, are evaluated and 
approved on a mine-by-mine basis and take into consideration the 
specific conditions at the mine. Each Coal Mine Safety and Health 
district utilizes a checklist and other guidance materials. including 
Program Information Letters (PIL) and PPLs, which are used to review 
plans to ensure all safety and health issues are addressed before plan 
approval. The checklist provides the reviewer with the most updated 
list of factors that must be considered on a mine-by-mine basis in 
determining whether a mine plan, once implemented, will protect the 
health and safety of miners. If a District Manager finds that the 
proposed plan is deficient, the checklist is used to note the specific 
deficiencies in the operator's plan submission when a rejection letter 
is sent to the mine operator. The current checklist is used during 6-
month reviews of all mining plans to ensure that any new statutory/
regulatory requirement is added to the plan (or any new guidance is 
considered by the District Manager in light of mine-specific 
conditions) and to address plan adequacy and citation history. Plans 
that involve special reviews, such as roof control plans that are 
complex due to unusual geological conditions, receive additional review 
during the approval process. For such roof control plans, the operator 
must submit plans with additional provisions and/or data/information 
with the plan or any amendments. MSHA's Directorate of Technical 
Support, Roof Control Division also provides analytical analysis to 
assist the District Manager in determining the adequacy of all complex 
and/or nontypical plan approvals and amendments.
    For Metal and Nonmetal mines, Escape and Evacuation Plans are 
reviewed twice annually by the district offices, as required by 30 CFR 
Sec. 57.11053. Ventilation Plans are required to be updated annually by 
the mine operator. Each district office reviews the plans on an annual 
basis as required by 30 CFR Sec. 57.8520.
    Question. How are technical disputes with mine operators related to 
submitted plans resolved?
    Answer. In those situations where MSHA can no longer accept a 
provision of an approved plan, cannot approve a provision in a new 
plan, or cannot approve a proposed change to an approved plan, MSHA 
representatives will discuss the identified plan deficiency with the 
mine operator in an effort to gain consensus promptly on a modification 
to the provision so that the plan can be approved by MSHA and 
implemented by the operator. However, if the mine operator is unwilling 
to make plan modifications that MSHA believes necessary after a full 
and fair consideration to provide the requisite level of miner 
protection, and the operator adopts a deficient mine plan and/or 
evidences an intent to mine in accordance with an unacceptable plan 
provision, MSHA will issue a citation for a violation of the Mine Act. 
Unless the operator evidences bad faith in conducting mining operations 
without an approved plan, such violations generally are cited under 
section 104(a) of the Mine Act, and they do not involve unwarrantable 
failure findings.
    The following several paragraphs show how the three situations 
described above are handled.
    When MSHA determines that a plan provision is no longer adequate, 
the following plan approval revocation procedures are followed:
  --The District Manager provides written notification to the operator 
        stating that changes are needed in the plan, identifies the 
        reason(s) such changes are needed, affords the operator an 
        opportunity to meet with District personnel to discuss any 
        proposed changes, and sets a reasonable period of time for the 
        operator to submit revised plan provisions to the District.
  --If the operator fails to timely make modifications sufficient to 
        address the District Manager's concerns (or through District 
        and operator discussions the differences concerning the plan 
        cannot be resolved and the operator does not resubmit a revised 
        plan), a second written notification is sent from the District 
        Manager to the operator. The purpose of this notification is to 
        inform the operator that the District continues to be unable to 
        approve existing plan provisions for reasons identified in the 
        notification, specify a time by which suitable plan provisions 
        must be submitted by the operator to the District, and notify 
        the operator that after such time approval of the existing plan 
        will be revoked and the operator will be without the required 
        approved plan. Operating after the revocation date is a 
        violation of the standard that permits operation of a mine only 
        pursuant to an approved plan.
  --If the parties reach impasse after good-faith discussion, MSHA 
        issues a citation, which the operator may contest before an 
        Administrative Law Judge (ALJ) of the Federal Mine Safety and 
        Health Review Commission (FMSHRC). The operator can request an 
        expedited hearing. The ALJ makes a decision based on evidence 
        provided, either requiring the operator to submit a revised 
        plan for MSHA approval or finding unreasonable the District 
        Manager's decision to refuse to approve the plan as submitted. 
        Prior to resolution by the FMSHRC, the operator can abate the 
        citation and continue to mine by adopting and mining in 
        accordance with a plan that contains provisions that MSHA has 
        identified as being necessary to achieve the appropriate level 
        of miner protection.
  --With this approach, there is no need to operate in violation of the 
        mine's approved plan, and the violation would be ``technical'' 
        in nature.
    In the case of an operator-proposed change to an existing approved 
mine plan, if approval of the change is denied, the operator could 
notify the MSHA District that, as of a certain date, the mine's 
existing approved plan is no longer adopted by the operator, and that 
the operator intends to adopt the proposed change which is not 
approved. On that date, a section 104(a) citation would be issued for 
the operator's failure to have and adopt an approved plan, and the 
operator may contest the citation before a FMSHRC ALJ. Abatement would 
be achieved by the operator promptly adopting the provisions of the 
most recently approved plan for the mine. Again, there need not be any 
changes made in the actual mining procedures, and the violation would 
be ``technical'' in nature.
    The case of a new mine plan with a provision that cannot be 
approved would be handled in a similar manner. The operator would 
indicate that mining operations will begin on a particular date, using 
the plan that contains the provision which is not approved. On the date 
indicated for starting operations, a citation would be issued for 
failure to adopt and follow an approved plan, as required by the 
applicable standard, and the operator may contest the citation before a 
FMSHRC ALJ. Abatement would be achieved by the operator promptly 
adopting provisions that satisfy MSHA's previously documented concerns.
    Under each of these circumstances, once a citation is issued, the 
operator has the right to contest the violation and to present evidence 
to an ALJ regarding the reasons why the disputed plan provision should 
have been approved. Likewise, MSHA would present its reasons for 
revoking or denying approval.
    Question. According to information from DOL, roughly 95 percent of 
MSHA citations over the past 4 years have been or are expected to be 
upheld without change, including those that have gone to a hearing 
before the FMSHRC. And, Mr. Main indicated in his testimony that less 
than one-half of 1 percent of citations are vacated. However, both Mr. 
Main and Ms. Smith indicated that steps are being taken to make the 
citation process more objective and consistent, and address 
simplification of the penalty rules, which should result in fewer 
contested citations. Would you both describe the steps taken and/or 
planned and the funding required to support these activities?
    Answer. The steps MSHA is taking and/or plans include the 
following:
  --Ensuring consistency among inspectors is one of MSHA's priorities. 
        Currently, a new MSHA inspector must participate in extensive 
        classroom training for up to 18 months as well as in on-the-job 
        training with a journeyman inspector before the inspector can 
        begin unsupervised inspection duties. MSHA is auditing 
        inspector performance to improve quality and consistency. 
        Following confirmation of Assistant Secretary Main, MSHA 
        initiated a training program for all supervisors that includes 
        ``law, regulation, and policy;'' ``citation and order 
        writing;'' and ``field activity review.'' That training program 
        assures that MSHA journeyman inspectors are properly overseeing 
        on-the-job training of new inspectors.
    In addition, MSHA has recently undertaken a distance learning 
        initiative to provide additional training to entry-level and 
        journey-level inspectors. This type of training allows MSHA to 
        deliver more training at a low cost to inspectors. MSHA 
        currently has 18 distance-learning training programs available 
        for coal mine inspectors. One example is the recently released 
        ``Rules to Live By'' course. ``Rules to Live By'' training 
        focuses on 24 frequently cited standards (11 in coal mining and 
        13 in metal/nonmetal mining) associated with conditions that 
        commonly cause or contribute to fatal accidents in the mining 
        industry. Over time, the distance-learning initiative will 
        result in improved consistency in enforcement.
    MSHA will continue to review its inspector training programs, and 
        where necessary, adjust or expand training for improved 
        consistency. In addition, MSHA is evaluating the citation 
        writing process to improve simplicity and clarity, and to 
        establish a method to locate and correct any errors in the 
        citations that cause operators to file hearing requests with 
        the FMSHRC.
  --MSHA is in the process of revising the MSHA conferencing process 
        with mine operators following issuance of citations and orders 
        but prior to the actual contesting of the citation. Under the 
        current system utilized by most MSHA districts, the MSHA 
        district conferences are not held to resolve disputes until 
        after the penalty is contested which then requires approval by 
        the FMSHRC. These settlements add to the backlog of cases 
        pending before the FMSHRC. By holding the conferences prior to 
        the contesting facts in dispute the violations can be 
        immediately resolved and settled.
  --MSHA plans to revise its criteria for a proposed assessment of 
        civil penalties. Simplifying and clarifying the procedures for 
        the citation process and the assessment of civil penalties 
        should eliminate some of the areas of dispute when a citation 
        is issued, which should in turn reduce the number of contested 
        citations.
    The civil penalty regulations were last revised in 2007, and 
        adjusted for inflation in 2008. MSHA will be evaluating 
        proposed penalties to assure that they are a sufficient 
        deterrent for operators who fail to comply with safety and 
        health requirements. In most of the contested cases before the 
        FMSHRC, the issue is not whether a violation occurred. Instead 
        the dispute is over the gravity of the violation, the degree of 
        mine operator negligence, and other factors. Currently, when 
        writing a citation a mine inspector determines:
    --Among five categories the likelihood of injury from the 
            violation;
    --Among four categories the severity of an injury if one occurred;
    --The number of persons affected by the hazardous condition;
    --Whether the violation is significant and substantial; and
    --Among five categories the operator's degree of negligence.
    Once a citation is issued, MSHA issues a proposed assessed penalty. 
        MSHA's existing civil penalty regulations involve assigning 
        specified penalty points to a violation using various tables 
        that set forth the penalty criteria in the Mine Act. The total 
        points are then converted into a dollar amount using a penalty 
        conversion table. Penalties increase more significantly for 
        large mine operators, operators with a history of repeated 
        violations of the same standard, and for operators whose 
        violations involve high degrees of negligence or gravity. 
        MSHA's rulemaking process will consider how to simplify the 
        procedures regarding the issuing of citations and the 
        assignment of penalty points. MSHA has included this rulemaking 
        on the Department's spring regulatory agenda and plans to issue 
        a proposed rule in January 2011.
    MSHA does not anticipate requiring additional funding for these 
        activities.
    Question. During the hearing, both Mr. Blankenship and President 
Roberts raised concerns about how the accident investigation is to be 
conducted. I would like the Department's rationale for how it's 
planning to conduct this investigation. How will the Department ensure 
that this investigation is comprehensive and open and gets to the 
bottom of what caused this accident as quickly as possible, so we can 
avoid another mine accident?
    Answer. The investigation of the Upper Big Branch (Upper Big 
Branch) mine accident is being conducted as a coordinated investigation 
of MSHA and two investigative teams from the State of West Virginia. 
The planning of the investigative process was driven by a commitment to 
learn what caused the accident, to transparency and openness, and to 
ensure that the investigation does not impede the ongoing criminal 
investigation of the U.S. Department of Justice.
    The coordinated Government investigation will use all Federal and 
State enforcement tools that are available, including subpoenas. A 
Federal-State accident investigation team will conduct a physical 
inspection of the underground portions of the mine (with 
representatives of the miners and the mining company), collect 
documents and other physical evidence from Performance Coal Company and 
other interested persons, and conduct interviews of witnesses with 
knowledge of relevant facts. In order to facilitate the interviews, the 
State of West Virginia has agreed to issue subpoenas, and, actually, 
has issued a few subpoenas in cases where they were found it to be 
necessary. MSHA also intends to hold an unprecedented series of public 
hearings that will build on the information that is learned from 
initial investigative activities. One hearing is designed to be a fact-
finding hearing; another will explore the technical aspects of the 
theory or theories surrounding the explosion; a third hearing will be a 
public forum that offers surviving family members the opportunity to 
express their thoughts; and a fourth hearing will be a town hall 
meeting designed to promote the exchange of ideas on how to create a 
``culture of safety'' at mining operations, and gather recommendations 
for the future. Together, these activities will constitute the most 
comprehensive and open investigation in the history of MSHA, and MSHA 
will publish a detailed report of the investigative findings.
    While both Mr. Blankenship and Mr. Roberts raised concerns about 
the exclusion of their own organizations from the Government-only 
initial interviews, the implication that MSHA will be able to hide 
possible malfeasance on its part by excluding the general public 
ignores the presence and participation of the independent West Virginia 
investigators at the interviews. Members of both West Virginia 
investigative teams are present at all interviews and are given the 
opportunity to, and in fact do, question witnesses extensively.
    Question. Further, how will the internal review be thorough and 
objective, so MSHA and others understand what needs to be corrected at 
MSHA in terms of its adherence to its own policies and procedures?
    Answer. Consistent with its historical policy and practice, MSHA 
has formed an Internal Review (IR) Team to examine the agency's own 
actions before the explosion. The IR Team, which is separate from the 
Accident Investigation Team, will collect relevant documents and 
information, conduct interviews of various witnesses, and will publish 
its findings, conclusions, and recommendations.
    Question. Last, how much funding is needed to ensure that the 
investigation and internal review is thorough, objective, and open?
    Answer. MSHA estimates it will need approximately $4,500,000 to 
conduct a thorough review of the events at the Upper Big Branch mine 
disaster. This reflects the estimated total cost for the MSHA-conducted 
Accident Investigation, Internal Review, and public hearings. A recent 
comparable investigation (Sago) cost approximately $1,000,000 for the 
accident investigation and internal review. The Upper Big Branch 
investigation will be on a significantly larger scale with a greater 
number of staff detailed to both the investigation and internal review. 
In addition, the accident investigation will consist of an initial 
investigation followed by a series of public hearings, which will 
require significant preparation and will address broader issues such as 
the reluctance of miners to come forward and report hazardous 
conditions at their mines.
    Additionally, $1,000,000 is necessary for the potential independent 
investigation and critical review of MSHA processes conducted by the 
National Science Foundation or similarly esteemed organization.
    Question. How many mines have records of violations similar in 
number to the Upper Big Branch mine, and how many have a history of 
frustrating MSHA efforts to enforce compliance?
    Answer. There are 29 mines that have more Significant and 
Substantial (S&S) citations and orders than Upper Big Branch during 
fiscal year 2009-fiscal year 2010 (as of June 3, 2010). Of these 29, 4 
are Massey Energy Company mines. Some of these mines are much larger 
mines with more mining sections, producing more tons of coal and 
employing many more miners than Upper Big Branch.
    Question. What is MSHA doing immediately to address these mines?
    Answer. MSHA conducted impact inspections of coal mines whose 
history of underground conditions indicated a significant number of 
violations related to methane accumulations, ventilation practices, 
rock dust applications, and inadequate mine examinations. MSHA issued 
1,454 citations, orders, and safeguards to 57 coal mines during the 
week of April 19 through 23, 2010. Since then, we have conducted 
additional impact inspections at both coal and metal/nonmetal mines, 
and we plan to continue to target mines with compliance problems. In 
six Kentucky mines where MSHA conducted impact inspections, MSHA found 
ventilation and dust violations that affected entire mines and 
consequently issued closure orders that required the mines to be closed 
until the violations were abated.
    As I mentioned in my May 20, 2010 testimony before the 
subcommittee, MSHA is endeavoring to become less predictable with our 
inspections. Modeled after MSHA's special respirable dust emphasis 
inspections at underground coal mines, MSHA will be conducting more 
inspections during the off-shifts and increasing inspector presence at 
mines with multiple mechanized mining units. Where evidence warrants, 
enforcement personnel are ``capturing the phones'' during subsequent 
impact inspections and increasing our effectiveness by preventing 
operators from giving advance notice of our inspection activities. MSHA 
is also launching legal actions against mine operators that provide 
advance notice of inspections, such as the recent case involving two 
Kentucky coal mines.
    MSHA also plans additional ``blitz inspections'' during the 
remainder of this fiscal year and in fiscal year 2011. We are currently 
evaluating selection criteria for mines warranting targeted enforcement 
beginning in July 2010.
    In concert with DOL attorneys, we have identified mines with large 
numbers of contested violations for which we have requested expedited 
hearings before the FMSHRC and will request additional hearings when we 
find mines that would meet the criteria for being placed on a statutory 
``pattern of violations'' absent the lack of final orders from the 
FMSHRC.
    MSHA is currently providing technical assistance to Congress on 
amending the Pattern of Violation standard contained in the Mine Act 
and has announced plans to revise the Pattern of Violations regulations 
and screening criteria. MSHA will carefully craft these regulations and 
screening criteria to eliminate the existing flaws that allow mine 
operators to avoid the stricter sanctions by tying up serious 
violations in litigation.
    Question. According to news media, MSHA negotiated an agreement 
with Massey Energy in 2006 to waive filing deadlines for contesting 
citations. Is there any truth to that?
    Answer. The Department's Office of the Solicitor (SOL) negotiated 
an agreement with Massey Energy in 2006 not to oppose Massey's motions 
to reopen cases under certain conditions. Attached are the September 
2006 informal agreement and the May 2009 letter rescinding the 
agreement. Operators can contest citations, they can contest the 
penalties assessed at a later time because of those violations, or they 
can contest both. SOL entered into the agreement in 2006 to try to 
reduce the number of pre-penalty contests (i.e., contests of underlying 
citations issued before a penalty was assessed). At the time SOL 
entered into the agreement, Massey was filing a large number of 
frivolous pre-penalty contests so that, if it subsequently neglected to 
file timely contests of the penalties themselves, but won the pre-
penalty contest of the underlying citation, MSHA would not be able to 
collect the associated penalty.
    To reduce the filing of so many pre-penalty contests, and the 
resulting burden of having to litigate the underlying violation in each 
case, SOL agreed not to oppose mistake- or inadvertence-based requests 
to reopen penalties that Massey neglected to timely contest if (1) the 
reopening request was filed within a reasonable time, not to exceed a 
year, and (2) MSHA would not be prejudiced by reopening.
    At the time the agreement was entered into, SOL did not oppose, and 
the FMSHRC granted, the majority of reopening requests. In practice, 
the agreement did not significantly alter the requirements for 
reopening previously applied by MSHA and the Commission. The agreement 
did not purport to, and could not, restrict the FMSHRC's application of 
existing rules and case law to reopening requests.
    A search of SOL records establishes that, during the time the 
agreement was in effect, SOL opposed Massey reopening requests at 
approximately the same rate it opposed other reopening requests. 
Specifically, SOL opposed four reopening requests and decided not to 
oppose seven. As to reopening requests pertaining to the Upper Big 
Branch mine, SOL opposed three reopening requests and declined to 
oppose none.
    Over the following 2 years, Massey started using the agreement for 
purposes beyond what it was intended and tried to claim that there was 
a blanket agreement to not object to reopening requests. The agreement 
clearly had outlived its intended purpose, and Massey's attorneys were 
misapplying it. Accordingly, SOL formally rescinded the agreement.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Question. Were other operators offered similar waivers? Please list 
the number of exemptions granted and deadlines waived annually.
    Answer. SOL does not have authority to grant exemptions or waive 
deadlines. Only the FMSHRC can decide whether to allow an operator to 
reopen a case. SOL offered no other operators a similar agreement not 
to oppose reopening in certain specified circumstances.
    Question. Why is MSHA not issuing an Emergency Temporary Standard 
to expedite its rule-making agenda?
    Answer. MSHA has not ruled out the use of Emergency Temporary 
Standards (ETS). The Mine Act allows MSHA to issue an ETS when the 
Secretary determines that miners are exposed to grave danger from 
exposure to substances or agents determined to be toxic or physically 
harmful, or to other hazards, and that an emergency standard is 
necessary to protect miners from that danger. MSHA can only issue an 
ETS for health and safety standards promulgated under section 101 of 
the Mine Act. Because the regulation concerning Pattern of Violations 
is not a mandatory safety or health standard, this is not among the 
possible areas where an ETS would be implemented.
    Question. Why is MSHA unwilling to revisit the screening criteria 
for pattern violators outside of the formal rulemaking process?
    Answer. MSHA is not unwilling to revisit the screening criteria for 
pattern violators outside of the formal rulemaking process. Prior to 
the Upper Big Branch mine disaster, MSHA was working on new screening 
criteria within the current regulations. Following the mine disaster, 
Congress requested that the Office of the Inspector General (OIG) 
review the pattern of violation screening criteria and report 
recommendations. Realizing that the pattern of violation system was 
broken, MSHA pledged to work with the OIG to evaluate the screening 
criteria to make improvements. MSHA is also currently providing 
technical assistance on legislation affecting the pattern of violation 
standard contained in section 104(e) of the Mine Act which could lead 
to possible amendments of the statute. With that in mind, along with 
plans by MSHA to revise the pattern of violation standards, MSHA will 
continue to work on new screening criteria.
    Question. The National Institute for Occupational Safety and Health 
(NIOSH) has studied the most severe mine explosions to identify 
ignition locations and sources. NIOSH linked many fatalities to 
nonpermissible electrical equipment located in intake air courses. What 
is MSHA doing to address this and other issues raised by NIOSH?
    Answer. MSHA is interested in this research and the potential to 
increase protection to miners from explosions involving nonpermissible 
equipment. MSHA is reviewing the results to determine what improvements 
can be pursued.
    Question. MSHA and NIOSH are investigating an activation problem 
with the SR-100, which is an emergency breathing device that has been 
recalled. What is the status of the joint investigation?
    Answer. On April 30, 2009. NIOSH, MSHA, and the CSE Corporation 
(CSE), the manufacturer of the SR-100, met to discuss progress on the 
investigation. CSE advised that the engineering company could not 
replicate the leak, but suspected the threaded connection between the 
valve and the cylinder body on the start-up oxygen cylinders could be 
the cause of the problem. They suspected that the application of the 
sealant on the threads was irregular on cylinders that leaked, which 
would be a Quality Assurance (QA) problem on received cylinders from 
Afrox (a South African company). The QA problem that Afrox may have is 
a manufacturer's final inspection and test process issue. Also, CSE's 
incoming inspection QA process may have to be improved to identify the 
cylinder defects prior to final assembly. NIOSH and MSHA told CSE that 
because the root cause cannot be identified, and since the problem 
cannot be confined to any particular subset of the population of start-
up cylinders, the problem could potentially be found in any start-up 
cylinder in the field. We requested CSE to issue a second User Notice, 
notifying the industry about this, and also requested CSE to maintain 
their voluntary stop-sale, which has continued since the issuance of 
the February User Notice. When CSE has a solution, they will be allowed 
to return to production. Units in the field will need to be addressed 
either by a retrofit or replacement program.
    Question. Flow many breathing units are affected?
    Answer. There are approximately 80,000-90,000 CSE SCSRs in the 
field and a total of approximately 190,000 SCSRs from all manufactures 
in the field, according to records in the MSI IA SCSR database.
    Question. What is MSHA doing to notify miners?
    Answer. CSE issued the second User Notice the beginning of May. The 
MSHA Web site, www.dol.gov/MSHA, includes information on all User 
Notices and a training notice regarding the Manual Start of chemical 
SCSRs. All User Notices have been distributed to all underground coal 
mines. MSHA Inspectors are checking to see that miners have been 
notified at mines and have been trained in the manual start procedures.
    Question. How is MSHA ensuring that operators address the problem?
    Answer. MSHA and NIOSH jointly conducted conference calls with the 
key National Mining Association (NMA), Bituminous Coal Operators 
Association (BCOA), and United Mine Workers of America (UMWA) 
representatives to update the investigation. Inspectors have been 
instructed to check that miners have been informed about the CSE SCSR 
problem and that they have been trained in the manual start procedure. 
MSHA CMS&H and Technical Support have drafted one Procedure Instruction 
Letter (PIL) and two Program Information Bulletins (PIB). One PIB 
relates to the second User Notice distributed by CSE, disseminating the 
information across the industry. The second PIB clarifies PPL 
requirements for mine operator testing of SCSRs with a 1 percent 
sample, and reiterates procedures to follow when problems are 
discovered with any SCSR in the field. CSE is exploring retrofit 
options that potentially would have to be provided for all SR-100 SCSRs 
in the field. CSE has a second engineering company exploring the use of 
a CAT scan to determine the distribution of sealant along threaded 
connections. Weekly progress reports are being provided to NIOSH and 
MSHA.
    Question. What is the plan and timeline for reorganizing MSHA 
District 4 into two districts?
    Answer. Recently, we provided information to the Congress that 
included a proposal for $1,048,000 to begin the reorganization and 
subsequent build-out of a new District office. MSHA has been working 
with the General Services Administration (GSA) to identify potential 
locations to house the new facility in the vicinity of the existing 
Pineville, West Virginia field office. If supplemental funding is 
provided, MSHA estimates the entire process of opening a new District 
office will take between 16-24 months, depending on our ability to find 
a suitable pre-existing structure that meets space requirements. Absent 
that, GSA would enter into a lease agreement for a build-to-suit 
facility. This would push the occupancy timeline of the District's 
permanent home out to approximately 24 months. MSHA plans to hire 
between 16-18 personnel to staff the District Office. There will be no 
increase to the Coal activity's PTE ceiling; these positions will be 
realigned from other Coal districts where mining activity has 
decreased. In order to be fully staffed and operational prior to a 
permanent building being ready for occupancy, MSHA will secure 
temporary space to house employees.
    Question. Assistant Secretary Main, please describe any 
irregularities that MSHA has found on the fan charts for the Upper Big 
Branch mine?
    Answer. The accident investigation into the Upper Big Branch mine 
disaster is still ongoing. Matters such as these and how they relate to 
other evidence in the investigation are being examined by the 
investigation. Once that is concluded, we will be able to report on the 
findings.
    Question. I request that you or Dr. Howard describe whether there 
are more advanced and tamper-proof technologies for mine fan record-
keeping?
    Answer. The current 30 CFR 75.312 regulation requires the 
measurement and recording of the mine fan pressure and examination of 
the fan each day. In most cases, the fan pressure is measured by a 
mechanical recorder with a paper chart on it. Some mines utilize a 
computerized system using the mine's Atmospheric Monitoring System and 
routing the information to a centralized facility. Computerized 
monitoring systems provide the opportunity for data to be 
electronically transmitted and stored.
    Question. How can we ensure that records are accurate, and that 
MSHA receives the accurate information in time to intervene promptly on 
behalf of miners?
    Answer. Fan charts have been used for years, but other methods 
could be utilized. A system that would download data at a secure data 
collection location may provide additional information. Expanding the 
use of mine-wide atmospheric monitoring that would constantly monitor 
and identify changes in air pressures and quality such as methane, 
carbon monoxide, and oxygen levels at strategic locations in the mine 
that could trigger alerts to miners would improve miners' safety.
    Question. How can advanced technology and computerized records 
improve this process?
    Answer. Advanced technologies can improve mine safety in a number 
of ways. As noted, the use of mine-wide atmospheric monitoring systems 
can provide immediate information on problems that can lead to mine 
explosions. Technologies that monitor the mine atmosphere at strategic 
locations that can detect levels of methane, carbon monoxide, oxygen 
deficiencies, loss of ventilation pressures, reversal of air 
directions, and provide warning before they endanger miners can be 
implemented. These are sound preventative measures that can help 
protect miners.
    To help speed-up mine rescue efforts during an emergency, mine-wide 
atmospheric monitoring can be accomplished with a tube bundle system. 
In a tube bundle system, plastic sampling tubing is placed in strategic 
underground sampling locations, such as section return regulators and 
bleeder evaluation points, and is extended to a location on the surface 
of the mine. Sampling pumps located on the surface of the mine draw the 
air samples to monitoring and recording equipment. A similar method has 
long been used successfully by MSHA to sample mine atmospheres remotely 
after a mine lire or explosion. A tube bundle system has also been used 
extensively in Australian mines.
                   lake lynn experimental laboratory
    Question. Review the estimates for getting Lake Lynn reopened and 
to provide an updated estimate to the subcommittee.
    Answer. The estimated cost of repairs to the Lake Lynn Experimental 
Laboratory is $12 million pending availability of appropriations. The 
following provides an outline of the timeline and schedule of repairs 
for the Lake Lynn Experimental Laboratory based on the successful 
acquisition of property by December 30, 2010:
  --December 2010.--Acquisition of Lake Lynn facility is pending 
        approval.
  --January 2011.--Design phase for construction and repairs begins 
        assuming the Centers for Disease Control and Prevention 
        acquires purchase of Lake Lynn.
  --June 2011-2013.--Quick entry repairs completed to enable temporary 
        access through existing primary access route, until 
        construction of the two new entry portals is complete. When the 
        new portals are operational, the temporary access route will be 
        decommissioned because of the poor quality of the roof rock in 
        the area of that route. Construction of new portals is 
        complete, providing full access to the mine, pending 
        availability of appropriations.
                                 ______
                                 
                   Questions Submitted to John Howard
              Questions Submitted by Senator Thad Cochran
                  coal dust explosibility meter (cdem)
    Question. The goal of the National Institute for Occupational 
Safety and Health's (NIOSH) Office of Mine Safety and Health Research 
is the prevention and elimination of mining fatalities, injuries, and 
illnesses through research and safety interventions.
    NIOSH is currently pursuing commercialization of the CDEM, which is 
a portable device that will provide the mining industry with a means to 
assess accurately and in real time the hazard of coal mine dust 
explosibility. As it now stands, an inspector collects samples that are 
sent away and take 2 weeks to process. CDEM will not be commercially 
available until next year.
    NIOSH has also conducted research into the utility, practicality, 
survivability, and cost of refuge alternatives in an underground coal 
environment. State and Federal efforts resulted in the introduction of 
refuge chambers throughout the underground coal industry. However, 
alternatives to chambers such as an in-place shelter were left largely 
untouched and a range of chamber operational questions remain unknown.
    It my understanding that we only learned after the Upper Big Branch 
mine explosion that the mine had an impermissible coal and rock dust 
mixture shortly before the explosion. Could real-time information on 
the hazard have played a role in potentially preventing this explosion 
and future explosions?
    Answer. The ratio of coal and rock dust mixtures in underground 
coal mines provides insight into the explosibility hazard in a mine. 
Historically, samples of the dust mixture were collected and then sent 
to a laboratory for analysis, which required days or weeks for results 
to be obtained. NIOSH believes that reducing this analysis time would 
greatly improve the mining industry's ability to avoid potential 
explosion hazards. Therefore, NIOSH conducted a research study to 
develop a device capable of evaluating the ratio of coal and rock dust 
mixtures and the explosibility hazard in real-time. NIOSH achieved its 
research goals by developing the CDEM, which provides the same 
information as historical methods but within minutes of collecting the 
samples. Thus, the CDEM allows mine operators to know immediately if 
they must add more rock dust to maintain an inert mixture of rock to 
coal dust to avoid an explosion hazard. Similar to the past development 
of the methanometer, which allowed mine operators real-time knowledge 
of methane levels, the CDEM is expected to reduce the risk of 
explosions by allowing operators to identify and mitigate explosion 
risks at significantly earlier time points.
    Question. Would additional Federal resources allow for the 
commercialization of the CDEM sooner than the next year?
    Answer. NIOSH recognizes the significant benefits that the CDEM 
would provide to the underground coal mining industry by allowing 
explosion hazards to be identified and mitigated at earlier time 
points. As such, NIOSH has used its allocated funds efficaciously to 
assist in the commercialization of this device. Therefore, any 
additional Federal resources would have minimal impact on the timeframe 
for when this device becomes available to the public. However, a 
significant barrier to the commercialization of this device still 
exists. At the May 20, 2010, Mine Safety hearing, Dr. Howard indicated 
that the primary barrier to commercialization is the lack of a 
regulatory driver, given the small market share that the United States 
underground coal mining industry represents to potential manufacturers.
    Question. What can be done to increase mineworker confidence in 
refuge chambers, and to address the issue that the value of this 
potentially lifesaving technology remains undetermined?
    Answer. NIOSH conducted a number of in-house and contract research 
efforts in response to the mandates in the MINER Act and for 
preparation of the report to Congress. Specific in-house studies 
addressed such issues as the moving of refuge chambers located on 
active sections, the economic aspects of refuge chambers and in-place 
shelters, explosion pressure requirements, location, food and water 
requirements, interior space requirements, training needs, and 
simulated occupancy testing of the systems for providing breathable 
air. These data, coupled with feedback regarding refuge chambers 
already in use, have identified several critical gaps. These gaps, 
which remain a concern, involve the effectiveness of individual 
components of the technology and the ability of refuge chambers to 
function as advertised by the manufacturers. Therefore, NIOSH believes 
that the greatest impediment to increased mineworker confidence in 
refuge chambers relates to significant technology concerns rather than 
a perception issue within the industry. Until these functional issues 
are evaluated through a comprehensive research project, and the 
problems identified are addressed by the manufacturers, increased 
mineworker confidence may continue to be a concern. NIOSH is developing 
a research project to examine the major barriers to using refuge 
chambers and potential improvements to the technologies currently being 
used. The issues addressed may include, but will not be limited to, 
communications, heat and atmosphere management, scrubbing or purging of 
carbon monoxide, explosion resistance, movement and utilization, 
testing and approval processes, and training.
                                 ______
                                 
             Questions Submitted by Senator Robert C. Byrd
                 mine safety and health administration
    Question. National Institute for Occupational Safety and Health 
(NIOSH) has studied the most severe mine explosions to identify 
ignition locations and sources. NIOSH linked many fatalities to 
nonpermissible electrical equipment located in intake air courses. What 
is MSHA doing to address this and other issues raised by NIOSH?
    Answer. NIOSH has informed Mine Safety and Health Administration 
(MSHA) that NIOSH is available to discuss the implications of the 
research referenced in this question.
                      investigation of the sr-100
    Question. MSHA and NIOSH are investigating an activation problem 
with the SR-100, which is an emergency breathing device that has been 
recalled. What is the status of the joint investigation? How many 
breathing units are affected? What is MSHA doing to notify miners? How 
is MSHA ensuring that operators address the problem?
    Answer. NIOSH has played an active role in the investigation of the 
activation problem with the SR-100 in coordination with MSHA and the 
manufacturer. NIOSH, MSHA, and the manufacturer of the product in 
question (CSE Corporation) have met on several occasions to discuss the 
activation problem. At this time, the manufacturer believes that it has 
identified the source of the problem as being the sealant on the 
threads of the connection between the valve and the cylinder body on 
the start-up oxygen cylinders. Meanwhile, the manufacturer has not been 
able to identify a subset of its units with this particular problem, 
nor has the manufacturer identified the root cause of the problem in 
the manufacturing or QA process. The manufacture has stopped production 
and sale until the problem is resolved. NIOSH has issued several 
notices for users, including miners, on this problem. The most recent 
of these is the Respirator User Notice on the CSE SR-100 Self-Contained 
Self-Rescuer activation problem issued on October 20, 2010. In this 
notice, NIOSH and MSHA inform users of the actions they are taking to 
randomly sample and test SR-100 respirators from mines to determine the 
prevalence of the problem in field-deployed units. Once this 
investigation is complete, the agencies will decide what further 
actions may be necessary. More recently, NIOSH has identified an 
additional problem with opening some of the CSE SR-100 units, and NIOSH 
and MSHA are investigating this problem. NIOSH is currently developing 
training materials for mine workers that will explain how to determine 
if their SR-100 unit is functioning, and what they should do in the 
event that their unit fails to provide oxygen.
                                ubb mine
    Question. Please describe any irregularities that MSHA has found on 
the fan charts for the Upper Big Branch mine? I request that you or Dr. 
Howard describe whether there are more advanced and tamper-proof 
technologies for mine fan record-keeping? How can we ensure that 
records are accurate, and that MSHA receives the accurate information 
in time to intervene promptly on behalf of miners? How can advanced 
technology and computerized records improve this process?
    Answer. NIOSH believes that mine-wide atmospheric monitoring is an 
advanced technology that may improve safety in that the information 
provided may be used in real-time to mitigate explosion hazards. These 
technologies may be used to identify changes in methane, ventilation 
parameters such as pressure and velocity, carbon monoxide levels, etc. 
throughout the mine. This data has great potential for detection of 
hazards that may otherwise go undetected.
                                 ______
                                 
                      Letter From Patton Boggs LLP
                                 Washington, DC, November 12, 2010.
Hon. Tom Harkin,
Chairman, Subcommittee on Labor, Health and Human Services, Education, 
        and Related Agencies, Committee on Appropriations, Room 131, 
        Dirksen Senate Office Building, Washington, D.C. 20510-6025.
Hon. Thad Cochran,
Ranking Member, Subcommittee on Labor, Health and Human Services, 
        Education, and Related Agencies, Committee on Appropriations, 
        Room 131, Dirksen Senate Office Building, Washington, D.C. 
        20510-6025.
    Dear Chairman Harkin and Ranking Member Cochran: I write on behalf 
of my client, Massey Energy Company (``Massey'' or the ``Company''), in 
response to certain questions posed by Senator Cochran and the late 
Senator Robert Byrd of West Virginia. Provided below is my best effort, 
in consultation with Massey, to answer those questions as thoroughly as 
possible in the hopes that it will be of assistance to your committee 
in its important work exploring the issue of mine safety in this 
country. If after you have had an opportunity to review our responses 
below, there is any further information that you need, we will make 
best efforts to assist you.
    For the sake of clarity and convenience, we have set out the 
questions and answers together.
                                 ______
                                 
    Senator Byrd Question Number One. You said that you have strongly 
resolved to do everything possible to prevent this type of incident 
from happening again, and we want to take you at your word. 
Nevertheless, after its 2006 mine disaster, the Aracoma Alma #1 Mine 
still, in 2007, received 100 withdrawal orders for unwarrantable 
failures to comply with the Mine Act, and 11 withdrawal orders for 
failures to abate cited violations in a timely manner. Additionally, 
you currently have several other underground mines in or near West 
Virginia that are already on track this year to have as many withdrawal 
orders as the Upper Big Branch Mine had last year. What specific 
actions will you take to reverse these trends and prevent further 
injuries, illnesses, or deaths? In this regard, I am referring to mines 
receiving repeated 104(d)(2) withdrawal orders so far this year, in the 
following quantities:
        Spartan Mining--Road Fork #51--22 orders
        Freedom Energy Mining--Mine #1--32 orders
        Inman Energy--Randolph Mine--11 orders
    Massey's Response:
    The tragedy on April 5, 2010 at Performance Coal Company's Upper 
Big Branch (``UBB'') mine deeply affected everyone at Massey; 
obviously, the greatest and most tragic impact was felt by the twenty-
nine families who lost loved ones. In the face of this disaster, Massey 
has worked tirelessly to determine the cause of this accident and has 
redoubled its efforts to ensure to the extent humanly possible that 
nothing like it ever happens again. Apart from joining the Mine Safety 
and Health Administration (``MSHA'') and the West Virginia Office of 
Miners' Health, Safety and Training (``WVOMHST'') in the current 
underground investigation of the UBB mine, Massey has reevaluated its 
safety practices and implemented an even more demanding set of safety 
measures in all of its mines. Provided below is a summary of these 
changes.
    Since Senator Byrd's question mentions the 2006 Aracoma accident, 
it is important to mention briefly the numerous safety measures 
instituted by Massey immediately afterward. Because that incident 
involved an underground fire, Massey specifically improved its methods 
of fire prevention and control; for instance, Massey retrained 
dispatchers and atmospheric monitoring system operators, including the 
dispatcher on duty at the time of the Aracoma fire. The mine's 
dispatchers are now trained in safe haulage related to ventilation 
systems, firefighting, and emergency evacuation. Massey also installed 
at Aracoma state of the art sprinkler fire-suppression systems that far 
exceed state and Federal requirements. In addition, Aracoma now has: 
(i) new fire hoses with permanent water connection and improved access; 
(ii) thermal imaging devices; (iii) updated training of its mine rescue 
teams; (iv) a mobile firefighting trailer loaded with specialized 
firefighting equipment; (v) a mobile smoke room training unit to train 
miners for difficult mine fire evacuations; and (vi) enhanced quality 
assurance testing of all self-contained self rescue (``SCSR'') devices. 
In 2007, Massey even unveiled an innovation in the field of mine 
safety: a self-contained foam fire-fighting mine car. The 2007 
withdrawal orders referenced in Senator Byrd's question were more a 
reflection of MSHA's heightened scrutiny of Aracoma in the wake of that 
accident than of conditions at the mine, and the validity of those 
orders is currently in contest. Indeed, in the same year that MSHA 
issued those withdrawal orders, Aracoma ranked among the very safest 
mines in the nation with a remarkable 0.00 nonfatal days lost 
(``NFDL'') incidence rate in 2007. Honoring that exceptional 
accomplishment, on May 9, 2008, the Joseph A. Holmes Safety Association 
presented Aracoma's Alma and Hernshaw mines with prestigious national 
Pacesetter Awards for outstanding safety achievement. Aracoma also 
earned Massey Energy Company's 2007 Bradbury Safety Award, an annual 
award recognizing Massey's safest mining operation. This stark contrast 
between the withdrawal orders and contemporaneous safety awards is 
powerful proof that MSHA's subjective enforcement actions do not always 
accurately reflect the safety condition of a mine.
    With respect to UBB, Massey already had instituted a number of 
safety measures before the accident. As a result of an increase in MSHA 
citations and orders at mines like UBB and Spartan Mining's Road Fork 
#51 mine, Massey created the Hazard Elimination Committee in 2009. The 
committee is composed of experts who review all citations, identify 
related problems, order all necessary corrective measures, and then 
work to prevent any similar lapses at either the mine in question or 
any other Massey mine. More globally, the Hazard Elimination Committee 
carefully reviews mines with a history of withdrawal orders and 
institutes corrective actions designed to ensure the safety of Massey's 
employees (whom Massey refers to as ``members''). Since the UBB 
accident, Massey separated and expanded the committee into more 
specialized units and also instituted Hazard Elimination Committees at 
the resource group level, which allows for real time solutions. The 
number of people on the committee also has grown from 20 to 50, 
ensuring that the Hazard Elimination Committee has the resources to 
fulfill its mandate. Going forward, Massey sees these committees as 
critical to creating a unified response to any systemic issues.
    Besides the Hazard Elimination Committees, Massey also has 
instituted a more robust internal audit program that closely mirrors 
MSHA's level of oversight. The Company now has multiple full-time mine 
rescue/audit teams to improve compliance through comprehensive 
auditing. Each team includes a specialist assigned to a specific area 
of focus, including ventilation, section operations, electrical 
operations, conveyor systems (belts), mapping, and administrative 
compliance. The audits entail, among other things, an inspection of 
track haulage ways, escapeways, life lines, section ventilation, 
accumulations of combustible materials, and roof support. The audit 
culminates in a report--supported with photographic documentation--that 
lists all necessary corrective measures and provides a deadline for 
correction of the problem, not unlike that which MSHA or a state agency 
might require. These working groups are founded upon the principle, 
which Massey fully embraces, that the Company, and not its regulators, 
bear primary responsibility for ensuring a safe and lawful working 
environment.
    The impact of the Hazard Elimination Committees and the new audit 
procedures already has been felt. In fact, each of the three mines 
mentioned in Senator Byrd's question have received significant 
attention from the Hazard Elimination Committee in 2010; for example, 
Freedom Energy's Mine #1 has been the subject of two recent 
comprehensive mine audits, which resulted in subsequent remedial 
measures. Provided below, is a sample of the safety-related changes 
that have resulted from Massey's new programs:
  --In response to violations issued for the installation of man doors 
        without proper signs in each adjacent entry, Massey now 
        requires that doors or stoppings be shipped to the mine for 
        installation with all necessary components bundled together, 
        including the required signage. This requirement should 
        eliminate the potential for installation of an item before 
        other necessary components have been shipped by the supplier, 
        or received by Massey.
  --Massey routinely distributes company-wide information regarding 
        certain violation trends. Massey frequently sends out notes to 
        the resource groups, with the number of violations issued for 
        repeated hazards, such as unsealed stoppings, insufficient air 
        flow at the end of line curtains, water over the ball of the 
        track rail, or the accumulation of combustible materials. These 
        communications sharpen members' focus on specific problem 
        areas.
  --Each week, Massey develops a new ventilation training quiz and 
        sends it to every underground foreman or examiner. These 
        quizzes are used to train and instruct members on all 
        applicable regulations. The 31 tests issued to date have 
        included working mine map problems, multiple choice quizzes and 
        word puzzles that require members to familiarize themselves 
        with Massey's stringent ``S-1 P-2'' (i.e. safety first, 
        production second) guidelines.
  --The Hazard Elimination Committee terminated a previous practice in 
        which mine sites would purchase 16 foot fly boards. These 
        boards, from which ventilation check curtains are hung, had 
        been used throughout the company. During an audit, it was 
        apparent that the 16 foot fly boards inadequately facilitated 
        back up curtain coverage across the 20 foot wide entries. 
        Massey now requires the installation of two ten-foot boards. In 
        combination with the Company's required 20,000 cfm of air flow 
        at the last open crosscut (11,000 cfm more than required by 
        law), Massey has reduced the number of air flow violations.
    Because the UBB mine is currently subject to an MSHA closure order 
that prohibits Massey from operating underground, it is currently 
impossible to institute the above safety measures like Massey 
successfully implemented after the Aracoma accident. Massey 
nevertheless has recently implemented a number of safety measures at 
other mines. Specifically, Massey has amended its safety protocols to 
include the following:
  --A minimum air flow of 20,000 cfm is required at the last open break 
        on all sections.
  --Freshwater and dewatering lines in belt entries must be hung from 
        roofs to avoid damage.
  --Section roof bolters shall be equipped with a Bantam-type 
        rockduster and roof bolt operators shall rockdust each cut upon 
        completion of bolting.
  --When stoppings are built and completed, the individual who builds 
        the stopping will note its integrity by initialing and dating 
        the stopping.
  --Escapeways shall be traveled twice per week (even though once per 
        week is the legal requirement). The examiner will carry a 
        device for scaling roof and ribs and lifeline accessories, such 
        as spheres, cones, hangers, reflectors, lifeline splices, and 
        mandoor and escapeway signs.
  --Each fireboss is required to leave a colored ribbon after his 
        examination; this ribbon is replaced with a different color by 
        the next fireboss, confirming that checks are made.
  --Miners will be provided with a new style of metacarpal glove that 
        is more comfortable and that provides superior hand and finger 
        protection. Metatarsal gloves were created by Massey years ago 
        and have been enhanced several times.
  --Massey produced video training tapes covering the following 
        subjects: (i) electrical hazards/lock-out surface and 
        underground; (ii) surface haulage safety; (iii) roofbolter dust 
        collection system maintenance; and (iv) continuous miner, roof 
        bolter, and general underground hazard training.
  --Mines will now perform: (i) internal rock dust sampling for 
        incombustible content; (ii) systematic gas chromatograph 
        analysis of internal ventilation air course gases, which is 
        more accurate and comprehensive than that provided by the 
        industry standard handheld units; (iii) real time testing of 
        member exposure to respirable dust through the operation of 
        personal dust monitors (nearly 30 units). Massey will use the 
        dust monitors proactively with a time study to determine dust 
        sources and to train members on best practices.
    To underscore the above commitment to safety, Massey took the 
extraordinary step of idling all of its mines on October 29, 2010 for a 
company-wide safety retraining initiative.
    Massey used this unique opportunity to review and tighten safety 
procedures at each of its mines. Massey's Chairman and CEO, Don 
Blankenship, traveled to three mines during this stand down, including 
Freedom Energy Mining's Mine #1, and helped to educate members on the 
need to follow safety protocols at each mine. Undertaking such broad-
scale training with the support of the entire company is a testament to 
Massey's commitment to safety and a signal to its members that S-1, 
safety first, is the top priority.
    Senator Byrd Question Number Three.\1\ Does it not undermine your 
commitment to safety as ``job 1'' when Massey offers bonus packages 
that are based 75 percent on productivity (i.e. number of feet per 
shift, number of tons per man-hour, reduction of cash costs per ton) 
and only 25 percent on safe performance? It is my understanding that 
Massey also has a company policy that enables it to offer incentive 
awards to any of its employees. Have any of your employees received a 
bonus or award for achieving a given performance goal related to 
productivity, without also having achieved a performance goal on 
safety? Do you offer your coal miners or other employees awards, 
bonuses, or other supplemental compensation, based on their 
productivity?
---------------------------------------------------------------------------
    \1\ We were instructed by counsel for the committee to disregard 
the second question posed by Senator Byrd.
---------------------------------------------------------------------------
    Response:
    Massey has a number of different bonus structures for its 
employees, each of which incorporates a safety component and none of 
which undermine the Company's commitment to safety. The bonus framework 
incorporates safety through clear, cognizable benchmarks that require 
low nonfatal days lost and lost time accidents. These incentives apply 
to all members, from a company president to an engineer to a roof bolt 
operator. For supervisors, the safety bonus is typically tied to the 
overall safety of the members under their care. Other members are 
rewarded based upon a formula that accounts for their own safety, their 
section's safety, and the whole mine's safety, thereby encouraging 
safety both individually and collectively.
    The Company understands that it is both improper and 
counterproductive to sacrifice safety in an attempt to increase coal 
production. Indeed, we absolutely reject the premise that the goals of 
safety and productivity compete with one another. The maxim ``a safe 
mine is a productive mine'' is a common refrain among Massey members 
or, put differently, a successful 51 Program is essential to an 
effective P-2 Program. Consequently, Massey standardizes its mining 
practices and provides detailed process guidelines for routine mining 
procedures. Massey recognized long ago that process management is 
essential to mine safety and that accidents often result from process 
exceptions. The goal is to perform every job correctly the first time 
and every time thereafter. Accordingly, Massey's ``S-1 P2'' programs 
are grounded upon the principle that mines are more productive and more 
profitable when management follows a documented regimen of safe mining 
practices. So while it is true, as mentioned in Senator Byrd's 
question, that 75 percent of some employees' bonus structure might be 
tied to cash costs per foot, production feet per shift, and linear feet 
per man hour, safety plays a critical role in determining if the bonus 
is met. As a result, members cannot meet their production goals and 
maximize their bonus by ignoring safety.
    Apart from the above bonus structure, Massey's safety compliance 
and ethics program is enhanced through its pioneering and award-winning 
``Raymond'' safety incentive program. Under the Raymond program, points 
are awarded to individuals, working teams, and specific mines for safe 
and ethical conduct, and those points may then be redeemed from a prize 
catalog that includes sporting goods, clothing, tools, electronics, 
toys, and other items. All underground members from the superintendent 
level and below are eligible to participate in the program. The Raymond 
incentive program has been recognized nationally for its creativity and 
effectiveness in promoting a culture of safety and compliance, winning 
the 2006 and 2007 Promotional Products Association International's 
Golden Pyramid Award for Employee Incentives, and the 2005 Incentive 
Marketing Association's Circle of Excellence award for Most Outstanding 
Incentive Program in the nation.
    Whether applied to the newest member or the most experienced 
president, Massey's bonus structures explicitly emphasize safety. 
Although Massey is confident that the current system does not undermine 
the Company's commitment to safety, the bonus criteria are not static, 
but rather are subject to change from year to year as Massey 
continually reevaluates its programs to ensure that they reflect the 
principles of safety first and performance second.
    Senator Byrd Question Number Four. You testified that the Upper Big 
Branch Mine was formerly operated by Peabody Energy. According to the 
Energy Information Administration, the productivity of Central 
Appalachian coal mines has declined 33 percent over the past decade. 
Major coal-mining companies (such as Peabody) have increasingly sold 
off their Central Appalachian mines. This is perhaps due to perceptions 
that increased risks and related costs outweigh diminished production 
values. Meanwhile, Massey has acquired many cast-off properties and 
coal leases, and roughly tripled the amount of reserves it controls 
during the past twenty years. For instance, it is my understanding that 
while other coal companies have gone bankrupt or left the region, 
Massey has acquired, rehabilitated, and resumed production at older 
mines, including nonproducing property in which blocks of coal had been 
left un-mined by the previous operator. You stated that your goal is to 
engineer the risks out of mining in Central Appalachia, but you also 
repeatedly acknowledged the difficult underground geologic conditions 
and risk factors of many mines in Central Appalachia today. The Upper 
Big Branch Mine Disaster presents the question as to whether Massey can 
sufficiently engineer the safety risks out of the difficult mining 
conditions in Central Appalachia. How do you respond to that question? 
Considering the nature of your acquisitions and operations, and your 
remarks about management of risks, and in light of the UBB tragedy, 
what process will Massey use to re-evaluate its previous assumptions 
and its abilities to engineer safety into its Central Appalachian 
underground coal mines?
    Massey's Response:
    Mining coal is an inherently dangerous business and has been so 
since coal was first discovered in West Virginia by John Peter Salley 
in 1742. Digging through rock thousands of feet underground in dynamic 
conditions with large elaborate machinery entails a certain amount of 
risk. As recently as 1968, these risks led to the deaths of over 150 
West Virginia coal miners and resulted in a staggering number of non-
fatal accidents. Needless to say, the risks associated with coal mining 
have decreased significantly as technology and training have improved 
over time. Although Massey is acutely aware of the perils associated 
with mining, it is nevertheless optimistic about the future of safe 
mining in Central Appalachia in light of the dramatic technological 
progress that has occurred over the last twenty years. Indeed, Massey 
has been at the forefront of the research and technological innovation 
that has advanced the cause of safety; set forth below are some 
examples of Massey's contribution:
  --Proximity devices for underground continuous miners: These devices 
        stop a continuous miner when a member comes dangerously close 
        to the equipment. The Company believes this eventually will be 
        adopted into law. Massey helped conceive the idea and is also 
        pursuing the use of proximity devices on other mobile 
        equipment.
  --First-aid sled for underground operations: These sleds are equipped 
        with a complete set of first aid supplies. They can be moved 
        underground with mining operations easily so that they are 
        readily available in an emergency.
  --Protective covers for highwall miners: Due to the proximity of the 
        highwall miner machine to highwalls, Massey installed these 
        covers to protect miners from unexpected highwall failures.
  --Canopies and NASCAR netting for underground mantrips: Although not 
        required by law, Massey equipped its mantrips with canopies and 
        netting to protect its miners from falling rock while traveling 
        underground.
  --Underground forklifts for material handling: These specially 
        adapted forklifts assist miners in the movement of supplies 
        underground. Combined with the required vendor palletizing of 
        bulk supplies, the forklifts have greatly reduced back strains 
        and other injuries.
  --Automated Temporary Roof Support (``ATRS'') Flappers: Massey 
        developed retractable folding extensions for the Automated 
        Temporary Roof Support in order to expand the supported roof 
        area during the roof bolting process. The flappers reduce the 
        likelihood that loose rock or coal will roll onto an operator's 
        feet or legs, thus providing an operator with a larger ``safe'' 
        area to perform.
  --Thermal Imaging: Massey utilizes thermal imaging to detect 
        defective circuit breakers or connections before they can start 
        fires, explosions or otherwise harm Massey members.
  --Underground maintenance vehicles: Massey developed these all-in-one 
        units, which include a crane, to assist with maintenance and 
        repairs to underground equipment.
  --Protective Clothing: Beginning in 1993, Massey required the use of 
        reflective clothing and metatarsal work boots for all mining 
        operations. The industry and much of the world subsequently 
        adopted both of these safety advances.
  --Vehicle safety: Out of a concern for the safety of those working 
        around mining vehicles, Massey implemented a seat belt policy 
        for all mining equipment, required the use of strobe lights on 
        underground vehicles, and required the use of reflective tape 
        on all surface vehicles.
  --Foam fire-fighting car: As mentioned in the answer to Senator 
        Byrd's first question, Massey developed a self-contained foam 
        firefighting car as one of the many safety-related responses to 
        the Aracoma accident in 2006.
  --Submarine kits: Dozers working near stockpiles are equipped with 
        ``submarine kits'' that protect dozer operators if the dozer 
        slips into voids in the stockpile. This device has been adopted 
        throughout the industry and has saved lives.
  --Cameras on large equipment: Large surface mining equipment has been 
        equipped with cameras that address driver blind spots, keeping 
        miners in smaller surface equipment safe.
    Although Massey clearly understands its obligation to provide a 
safe working environment for its members in Central Appalachia, MSHA 
likewise has a duty to ensure underground safety. It is for this reason 
that Massey continues to be perplexed by some Federal regulatory 
actions that strike the Company as insufficient or, in some extreme 
instances, just plain wrong. One such example is MSHA's position with 
respect to scrubbers, which are essentially dust collectors that help 
to minimize coal dust that threatens miners' lungs and that could 
potentially precipitate an explosion. Scrubbers are akin to a vacuum 
cleaner, drawing in dirty air created during the continuous mining 
process, passing that air through a filter, and eventually releasing 
the filtered air back into the mine. This is essential technology that 
has been widely used since the 1980s, making mines objectively safer 
over the last three decades. In fact, one study by the National 
Institute of Occupational Safety and Health indicated that turning off 
scrubbers could increase by as much as 12 times the level of respirable 
coal dust. In the face of this scientific data and despite industry-
wide support, however, MSHA demanded that Massey and other Central 
Appalachian mines in District 4, including UBB, idle their scrubbers. 
As a result, almost half of Massey's continuous mining equipment has 
been forced to run without using the technology best adapted to remove 
harmful coal dust from the air. Repeated efforts by Massey to open a 
dialogue with MSHA on this subject have been met with intransigence.
    This issue is particularly sensitive to Massey because the company 
believes that prohibiting scrubbers at UBB exacerbated MSHA's 
complicated ventilation plan for the mine. A properly ventilated mine 
requires the careful synchronization of various underground mechanisms; 
altering one aspect of a mine improperly can disrupt the environment in 
potentially harmful ways. As a result of MSHA's order to turn off 
scrubbers, Massey was compelled to alter UBB's ventilation system, 
further complicating MSHA's already unnecessarily complex ventilation 
plan for the mine and increasing respirable coal dust at UBB.
    Despite the above challenges, Massey continues to remain optimistic 
about the future of coal mining in Central Appalachia. Since 1742, 
there has been a steady march towards safer mines in West Virginia. 
Sometimes progress is frustratingly slow, yet the advance over time is 
undeniable. The Company, therefore, remains committed to Central 
Appalachia in the firm belief that future technological advancements 
will invariably lead to safer mines.
    Background to Senator Cochran's Questions. A recent preliminary 
report to President Obama on the mine disaster found that the Upper Big 
Branch mine experienced a significant spike in safety violations in 
2009. The Mine Safety and Health Administration (MSHA) issued 515 
citations and orders at the mine in 2009 and another 124 (as of the 
time of the report) in 2010. MSHA issued fines for these violations of 
nearly $1.1 million, though most of the fines are being contested by 
Massey. The citations MSHA has issued at Upper Big Branch have not only 
been more numerous than average, they have also been more serious. Over 
39 percent of citations issued at Upper Big Branch in 2009 were for 
``significant and substantial'' (S &S) violations. In what is perhaps 
the most troubling statistic, in 2009, MSHA issued 48 withdrawal orders 
at the Upper Big Branch Mine for repeated `significant and 
substantial'' violations that the mine operator either knew, or should 
have known, constituted a hazard. The mine's rate for these kinds of 
violations is nearly 19 times the national rate.
    Senator Cochran Question Number One. Are you aware that a recent 
preliminary report submitted to President Obama by the Mine Safety and 
Health Administration found that Massey mine's rate for repeated 
serious violations was 19 times higher than the nation average?
    Massey's Response:
    Massey is aware of the preliminary report that apparently was 
hastily prepared and provided to President Obama on April 16, 2010. 
Although it is true that UBB experienced an increase in the number of 
withdrawal orders under Section 104(d) of the Mine Act (``D orders'') 
in 2009, the report does not fairly account for the circumstances 
contributing to these orders, nor does MSHA fairly acknowledge the 
sharp decrease in citations in late 2009 and 2010, after Massey 
redoubled its efforts at UBB. Provided below is the factual background 
that places these violations in the proper context.
    The increase in overall citations and orders at UBB in 2009 is 
largely a product of increased government oversight of the mine as well 
as a higher level of coal production. It is well settled that there is 
a direct correlation between MSHA inspection hours, the volume of 
production and the number of citations that a mine receives. As MSHA 
recognized in its preliminary report: ``In 2007, MSHA spent 135 days 
inspecting the mine. By 2009 inspectors were at the mine 180 days.'' 
This 33 percent spike is the equivalent of an extra month and a half at 
the mine. At the same time, the longwall returned to UBB from Logan's 
Fork, resulting in extra production and the development of additional 
sections for the next longwall panel. The confluence of more 
inspectors, longer and more frequent inspections, and increased 
production was, therefore, likely to result in additional citations.
    Apart from increased production and inspection, the ill-conceived 
ventilation plan changes imposed by MSHA also contributed to the 
increased number of violations and orders. These arose not because the 
Company refused to comply with the new standards, but because it was 
difficult to comply with the new complex ventilation scheme, which 
complicated the routing of the returns, prevented the use of belt air 
in the face, required the maintenance of stoppings inby the longwall, 
and wasted intake air on the longwall tailgate. In fact, a review 
indicates that 53 percent of the ``D orders'' for ventilation and 24 
percent of ventilation violations received at UBB in 2009 and 2010 were 
caused directly from the complex ventilation scheme mandated by 
MSHA.\2\
---------------------------------------------------------------------------
    \2\ The data with respect to orders shows: (i) 55 ``D orders'' were 
written from 2009 through March 31, 2010; (ii) 34 of 55 ``D orders'' 
(62 percent) were issued under 30 Sec. C.F.R. 575.300, which is 
generally the ventilation section of the law; (iii) 17 of those 34 were 
for 'true' ventilation issues; and (iv) 9 of those 17 orders were 
direct results of the unfamiliar and complex ventilation scheme. The 
data with regard to the violations shows that 220 total violations were 
issued under 30 Sec. C.F.R. 575.300; of those violations, 100 (45 
percent) were for `true' ventilation issues; and 24 of those 100 were 
due to the MSHA-mandated ventilation plans.
---------------------------------------------------------------------------
    Despite these clearly identifiable precipitating factors, Massey 
was still concerned about the number of violations and sought to reduce 
them. The Company responded by installing two full-time safety 
directors at UBB in late September 2009. The additional safety 
presence, along with Massey's Hazard Elimination program, dramatically 
reduced the pace of citations issued at UBB. Indeed, although there 
were 47 ``D orders'' issued at UBB between April and mid-October 2009, 
MSHA wrote only seven from mid-October 2009 to April 2010, thus 
demonstrating the substantial progress made by the company during this 
period of time.
    In evaluating the above circumstances it is also important to note 
why the Company contested many of the citations and orders issued in 
2009 and 2010. Massey believes in good faith that these violations and 
orders, in whole or in part, lacked validity and/or failed to account 
for mitigating circumstances. Indeed, many of those referenced in the 
report are not final orders and will not become final until the review 
and adjudication process is complete. Based on past experience, we 
expect that many of these violations will be completely vacated during 
the Mine Safety and Health Review Commission process; for others, the 
severity of the offense will be reduced appropriately as mitigating 
circumstances are explained and considered by neutral factfinders.
    We hasten to add that while there are mitigating circumstances that 
explain the elevated enforcements at UBB, the Company cannot, and will 
not, simply ignore ``D Orders'' or become complacent as to the 
potential seriousness of a pattern of increased violations. 
Accordingly, and as described above, Massey established its Hazard 
Elimination Program at UBB (and throughout the Company) before the UBB 
accident to reduce both hazards and violations. The efficacy of the 
committee on UBB is evident from the precipitous drop in ``D Orders'' 
during the course of 2009 and into 2010. Massey believes that these 
measures as well as the others mentioned previously will result in a 
further decrease in the number of orders and citations company wide.
    Senator Cochran Question Number Two. Given this high rate of 
serious violations, can you please tell us what percentage the Upper 
Big Branch mine contested of its `significant and substantial'' 
citations serious violation citations for 2007, 2008, 2009, and 2010?
    Massey's Response:
    Massey does not keep statistics reflecting the number of 
Significant and Substantial (S&S) violations received at UBB that were 
contested through the Mine Safety and Health Review Commission process. 
The chart below identifies the percentage of violations that were S&S 
at UBB for the years 2006, 2007, 2008 and 2009.

----------------------------------------------------------------------------------------------------------------
                                                                  S&S violations/   District 4       National
                              Year                                      UBB           average         average
----------------------------------------------------------------------------------------------------------------
2006............................................................            47.9            40.7            38.2
2007............................................................            36.7            33.3            36.0
2008............................................................            42.1            36.1            31.9
2009............................................................            39.7            38.7            33.6
----------------------------------------------------------------------------------------------------------------

    As you can see, the rate at UBB was slightly greater than the 
District 4 and national averages; this is easily explained, however, by 
UBB's age, size, amount of producing sections, and number of employees, 
all of which are also proportionately higher than the national average.
    It is important to note that a statistic that quantifies the number 
of S&S violations contested would be rudimentary because such 
violations typically involve a higher fine than most. Industry-wide, 
the percentage of violations contested quantified by the amount of 
money at stake is significantly higher than the simple percentage of 
violations contested overall. According to statistics available on 
MSHA's website (www.msha.gov), the national average of all violations 
contested in 2009 was 27.1 percent, but the percentage of penalty 
dollars contested was 66.6 percent. Plainly, there is a direct 
correlation between the amount of a fine and the likelihood that it 
will be contested.
    Furthermore, contesting an S&S violation does not necessarily mean 
that a mine operator challenges the fact that it was significant and 
substantial. There are a number of different factual issues that an 
operator may contest, all of which are highly subjective and directly 
affect the amount of the fine. See 30 Sec. C.F.R. 5100.3(e). For 
example, the number of people potentially affected by the hazard is a 
frequent point of contention between mine operators and MSHA. As part 
of the penalty calculations, a hazard that MSHA believes would affect 
10 miners increases the penalty points by 18, while a hazard that 
affects only one miner (though still one miner too many) raises the 
penalty by one point. Id. This seventeen point differential has the 
potential to raise a single fine by over $45,000. See 30 Sec. C.F.R. 
5100.3(g).
    Other factors that go to the ``gravity'' of the offense and that 
are frequently litigated include the degree of negligence, whether the 
hazard was potentially fatal, and the likelihood that an injury or 
illness would occur. With regard to the likelihood of an accident 
occurring, by determining that an injury was ``highly likely'' to occur 
as opposed to ``reasonably likely,'' the penalty points are increased 
by ten. Id.
    Above all, it is important to remember that statistics show that 40 
percent of all appealed MSHA safety violations are later determined to 
be excessive or flatly wrong. Indeed, MSHA's initial violations are now 
routinely inflated as a position of advocacy. Consequently, it would be 
unfair to draw any negative inferences from Massey's decision to 
challenge MSHA's issuance of these highly subjective citations and 
orders. To the contrary, the remarkably high frequency of fine 
reductions or outright dismissals through the settlement and 
adjudication process demonstrate that these appeals are neither 
frivolous, taken for the purpose of delay, nor intended to overwhelm 
the appellate process.
    Senator Cochran Question Number Three. Did the Upper Big Branch 
mine contest large numbers of ``significant and substantial'' 
violations to avoid ``potential pattern of violation'' status since the 
Mine Safety and Health Administration uses only final orders to 
establish a pattern of violations?
    Massey's Response:
    In each instance, many factors--many of these the product of legal 
analysis and advice--inform the decision whether to appeal a particular 
citation. To the extent that this question seeks information that asks 
the Company to forfeit both the attorney-client privilege and the 
protections of the work product doctrine, we cannot respond. That being 
said, Massey challenges citations solely on their merits (or lack of 
merit). It does not challenge S&S citations simply to prevent its mines 
from being placed into ``potential pattern of violation'' status. As 
described in more detail above, there are myriad reasons for contesting 
an S&S violation, not the least of which is that it is an inherently 
subjective process. The results of the adjudicative and settlement 
process speak for themselves and forcefully refute the suggestion that 
appeals are taken for the purpose of delay or to avoid a ``pattern of 
violations'': Almost half of all citations are vacated or reduced 
during the Mine Safety and Health Review Commission process.
    It is also important to emphasize that Massey, like all mine 
operators, must abate every S&S violation, regardless of whether the 
Company plans to mount a challenge. A notice of contest, therefore, 
never results in the continuance of a potentially unsafe practice. By 
the time a contest is resolved, often more than a year from the 
issuance of the citation, the allegedly hazardous condition has been 
fixed and all that is in dispute is the validity of the violation and 
the severity of the fine. Simply put, Massey never exposes its members 
to any harm by contesting these violations.
                                 ______
                                 
    We reiterate that Massey is happy to assist your committee in its 
inquiry into the tragedy at UBB and mine safety in general. Massey 
believes that the committee's full engagement will lead to a greater 
appreciation of the unique challenges faced by the coal industry and, 
we hope, lead to a safer environment in which to harvest coal, which 
presently accounts for 45 percent of the country's energy. If you have 
any further questions please do not hesitate to contact me.
            Sincerely,

            [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
            
                                                  Robert D. Luskin.

                         CONCLUSION OF HEARING

    Senator Harkin. The subcommittee is recessed.
    [Whereupon, at 4:50 p.m., Thursday, May 20, the hearing was 
concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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