    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

                            MODERNIZING MINE SAFETY

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

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. House of Representatives

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                  HEARING HELD IN WASHINGTON, DC, MAY 4, 2011

                                   __________

                               Serial No. 112-19

                                   __________

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                        JOHN KLINE, Minnesota, Chairman

    Thomas E. Petri, Wisconsin           George Miller, California,
    Howard P. ``Buck'' McKeon,             Senior Democratic Member
        California                       Dale E. Kildee, Michigan
    Judy Biggert, Illinois               Donald M. Payne, New Jersey
    Todd Russell Platts, Pennsylvania    Robert E. Andrews, New Jersey
    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Virginia Foxx, North Carolina            Virginia
    Duncan Hunter, California            Lynn C. Woolsey, California
    David P. Roe, Tennessee              Ruben Hinojosa, Texas
    Glenn Thompson, Pennsylvania         Carolyn McCarthy, New York
    Tim Walberg, Michigan                John F. Tierney, Massachusetts
    Scott DesJarlais, Tennessee          Dennis J. Kucinich, Ohio
    Richard L. Hanna, New York           David Wu, Oregon
    Todd Rokita, Indiana                 Rush D. Holt, New Jersey
    Larry Bucshon, Indiana               Susan A. Davis, California
    Trey Gowdy, South Carolina           Raul M. Grijalva, Arizona
    Lou Barletta, Pennsylvania           Timothy H. Bishop, New York
    Kristi L. Noem, South Dakota         David Loebsack, Iowa
    Martha Roby, Alabama                 Mazie K. Hirono, Hawaii
    Joseph J. Heck, Nevada
    Dennis A. Ross, Florida
    Mike Kelly, Pennsylvania
    [Vacant]

                          Barrett Karr, Staff Director
                     Jody Calemine, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                        TIM WALBERG, Michigan, Chairman

    John Kline, Minnesota                Lynn C. Woolsey, California,
    Todd Rokita, Indiana                     Ranking
    Larry Bucshon, Indiana               Donald M. Payne, New Jersey
    Trey Gowdy, South Carolina           Dennis J. Kucinich, Ohio
    Kristi L. Noem, South Dakota         Timothy H. Bishop, New York
    Dennis A. Ross, Florida              Mazie K. Hirono, Hawaii
    Mike Kelly, Pennsylvania             George Miller, California
    [Vacant]
                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on May 4, 2011......................................     1

    Statement of Members:
        Walberg, Hon. Tim, chairman, Subcommittee on Workforce
          Protections................................................     1
            Prepared statement of....................................     3
            Questions submitted for the record.......................    97
        Woolsey, Hon. Lynn, ranking minority member, Subcommittee on
          Workforce Protections......................................     3
            Prepared statement of....................................     5
            Additional submission: Documents received from Tony
              Oppegard, attorney for Charles Scott Howard............    44

    Statement of Witnesses:
        Bumbico, Anthony S., vice president of safety, Arch Coal,
          Inc., on behalf of the National Mining Association.........    29
            Prepared statement of....................................    31
            Response to questions submitted for the record...........    99
        Ellis, Mark G., president, Industrial Minerals Association--
          North America..............................................    12
            Prepared statement of....................................    14
        Griesemer, Louis, on behalf of the National Stone, Sand &
          Gravel Association.........................................     6
            Prepared statement of....................................     8
        Roberts, Cecil Edward, Jr., president, United Mine Workers of
          America (UMWA).............................................    19
            Prepared statement of....................................    22

                            MODERNIZING MINE SAFETY

                                  ----------

                             Wednesday, May 4, 2011

                         U.S. House of Representatives

                     Subcommittee on Workforce Protections

                    Committee on Education and the Workforce

                                 Washington, DC

                                  ----------

        The subcommittee met, pursuant to call, at 10:03 a.m., in
    Room 2175, Rayburn House Office Building, Hon. Tim Walberg
    [chairman of the subcommittee] presiding.
        Present: Representatives Walberg, Kline, Rokita, Bucshon,
    Gowdy, Ross, Kelly, Woolsey, Payne, Kucinich, and Miller.
        Staff present: Andrew Banducci, Professional Staff Member;
    Katherine Bathgate, Press Assistant; Casey Buboltz, Coalitions
    and Member Services Coordinator; Ed Gilroy, Director of
    Workforce Policy; Benjamin Hoog, Legislative Assistant; Barrett
    Karr, Staff Director; Ryan Kearney, Legislative Assistant;
    Brian Newell, Press Secretary; Krisann Pearce, General Counsel;
    Molly McLaughlin Salmi, Deputy Director of Workforce Policy;
    Ken Serafin, Workforce Policy Counsel; Linda Stevens, Chief
    Clerk/Assistant to the General Counsel; Alissa Strawcutter,
    Deputy Clerk; Loren Sweatt, Professional Staff Member; Joseph
    Wheeler, Professional Staff Member; Aaron Albright, Minority
    Communications Director for Labor; Tylease Alli, Minority
    Hearing Clerk; Daniel Brown, Minority Staff Assistant; Jody
    Calemine, Minority Staff Director; Brian Levin, Minority New
    Media Press Assistant; Jerrica Mathis, Minority Legislative
    Fellow, Labor; Richard Miller, Minority Senior Labor Policy
    Advisor; Megan O'Reilly, Minority General Counsel; Julie
    Peller, Minority Deputy Staff Director; and Michele Varnhagen,
    Minority Chief Policy Advisor and Labor Policy Director.
        Chairman Walberg. Good morning. A quorum being present, the
    subcommittee will come to order. We welcome to the subcommittee
    each of you.
        This is our second opportunity in the 112th Congress to
    examine the safety of America's miners. The loss of life last
    month in Idaho--in an Idaho silver mine as well as the mining
    tragedy at Upper Big Branch are reminders of the need to remain
    vigilant in our efforts to promote mine safety.
        Over the last year, the Mine Safety and Health
    Administration has proposed a number of changes to mine safety,
    enforcement. Changes include reestablishing pre-shift
    examinations for safety and health violations and a new
    emergency rock dusting standard. The administration has also
    proposed significant changes to the regulations that govern
    when a mine is deemed to be in a patter of violation.
        While it has often failed exercising all the enforcement
    tools at its disposal, MSHA is to be commended for taking
    action. In fact, just last month, the administration, for the
    first time in its 40-year history, placed two mines in pattern
    of violations status. Additionally, due to the work of the
    committee and dedicated journalists, the public is finally able
    to take a look at internal audits that reveal more information
    about MSHA's enforcement procedures.
        There is still a number of questions surrounding MSHA's
    recent proposals. And we hope to get some answers today. Most
    importantly, we want to determine whether these changes will
    produce the safety results we hope to achieve. That is why the
    testimony from today's witnesses is so important.
        Our witnesses have more than 100 years of combined mine
    safety experience and the professional expertise and personal
    knowledge will help inform Congress about the current state of
    mine safety enforcement, whether MSHA, in their opinion, is on
    the right track and what other tools are needed to safeguard
    the health and well-being of miners.
        We also plan to review whether there are examples of
    federal laws or regulations hindering proactive efforts on the
    job site that may lead to better safety conditions. Washington
    cannot have all the answers. I can't believe I made that
    statement, Mr. Chairman. [Laughter.]
        But I truly believe that. And may I reiterate? Washington
    cannot have all the answers, and it should not stand in the way
    of an employer's effort to go above and beyond the law in
    providing a safe work environment. Punishment is important, but
    putting punishment before prevention is not in the best
    interests of America's workers.
        As Mr. Roberts has noted in the past, most of the mining
    industry does the right thing. Let us ensure federal policies
    hold bad actors accountable and partner with the good actors on
    behalf of worker safety.
        An example of this kind of collaborative effort is the
    successful development and deployment of coal dust
    explosibility meters, or CDM. The device developed by the
    Federal National Institute for Occupational Safety and Health
    takes real-time samples of rock dust to help determine its
    combustibility. Previously, MSHA laboratories could take weeks
    to examine a rock dust sample. Now miners have a useful tool
    on-site that immediately enhances safety.
        Advancing strong mine safety protections is a goal that we
    all share and one we must all work to achieve. Miners work
    under extreme conditions to provide the natural resources our
    nation needs. And they deserve our support.
        Policy makers, enforcement officials and mine operators
    each play an important role in helping to ensure miners go home
    to their families at the end of their shift. As I noted at our
    last mine safety hearing, workers safety is best advanced when
    we work together. And I hope we are capable of doing so.
        At this time, I would like to recognize my colleague from
    California, Lynn Woolsey, the senior Democratic member of the
    subcommittee, for opening remarks.
        [The statement of Mr. Walberg follows:]

               Prepared Statement of Hon. Tim Walberg, Chairman,
                     Subcommittee on Workforce Protections

        Good morning, and welcome to the Subcommittee on Workforce
    Protections. This is our second opportunity in the 112th Congress to
    examine the safety of America's miners. The loss of life last month in
    an Idaho silver mine, as well as the mining tragedy at Upper Big
    Branch, are reminders of the need to remain vigilant in our efforts to
    promote mine safety.
        Over the last year, the Mine Safety and Health Administration has
    proposed a number of changes to mine safety enforcement. Changes
    include reestablishing preshift examinations for safety and health
    violations and a new emergency rock dusting standard. The
    administration has also proposed significant changes to the regulations
    that govern when a mine is deemed to be in a ``pattern of violations.''
        While it has often failed exercising all the enforcement tools at
    its disposal, MSHA is to be commended for taking action. In fact, just
    last month the administration--for the first time in its 40 year
    history--placed two mines in ``pattern of violations'' status.
    Additionally, due to the work of the committee and dedicated
    journalists, the public is finally able to take a look at internal
    audits that reveal more information about MSHA's enforcement
    procedures.
        There are still a number of questions surrounding MSHA's recent
    proposals, and we hope to get some answers today. Most importantly, we
    want to determine whether these changes will produce the safety results
    we hope to achieve. That is why the testimony from today's witnesses is
    so important. Our witnesses have more than 100 years of combined mine
    safety experience, and their professional expertise and personal
    knowledge will help inform Congress about the current state of mine
    safety enforcement, whether MSHA--in their opinion--is on the right
    track, and what other tools are needed to safeguard the health and
    well-being of miners.
        We also plan to review whether there are examples of federal laws
    or regulations hindering proactive efforts on the jobsite that may lead
    to better safety conditions. Washington cannot have all the answers and
    it should not stand in the way of an employer's effort to go above and
    beyond the law in providing a safe work environment. Punishment is
    important, but putting punishment before prevention is not in the best
    interest of America's workers. As Mr. Roberts has noted in the past,
    most of the mining industry does the right thing. Let's ensure federal
    policies hold bad actors accountable, and partner with the good actors
    on behalf of worker safety.
        An example of this kind of collaborative effort is the successful
    development and deployment of coal dust explosibility meters, or CDEM.
    The device, developed by the federal National Institute for
    Occupational Safety and Health, takes real time samples of rock dust to
    help determine its combustibility. Previously, MSHA laboratories could
    take weeks to examine a rock dust sample. Now miners have a useful tool
    on site that has immediately enhanced safety.
        Advancing strong mine safety protections is a goal that we all
    share and one we must all work to achieve. Miners work under extreme
    conditions to provide the natural resources our nation needs, and they
    deserve our support. Policy makers, enforcement officials, and mine
    operators each play an important role in helping to ensure miners go
    home to their families at the end of their shift. As I noted at our
    last mine safety hearing, worker safety is best advanced when we work
    together, and I know we are capable of doing so.
        At this time, I would like to recognize my colleague from
    California, Mrs. Woolsey, the senior Democrat member of the
    Subcommittee, for her opening remarks.
                                     ______

        Ms. Woolsey. Thank you, Mr. Chairman. And thank you for
    convening this very important hearing.
        It has been 13 months since the Upper Big Branch disaster,
    yet Congress has failed to act on repeated requests from the
    Mine Safety and Health Administration, from MSHA. Miners and
    their families have asked also. And they want us to modernize
    the Mine Safety Act.
        MSHA has repeatedly asked our assistance because they need
    better tools to protect all miners. They need changes to a
    dysfunctional pattern of violations provision, stronger
    sanctions to penalize mine operators, operators who provide
    advanced notice of inspection, and basics like subpoena
    authority.
        Following MSHA's March 3rd testimony, which outlined the
    need and justification for legislation to modernize the Mine
    Act, Mr. Miller, Mr. Rahall and I reintroduced comprehensive
    mine safety legislation on April the 15th. It largely mirrors
    the Robert C. Byrd Mine Safety Protection Act that was brought
    to the floor last year. And it contains the reforms that MSHA
    has requested.
        One year ago on May 24th in Beckley, West Virginia, this
    committee heard from the governor of West Virginia and the
    families of miners who were killed at Massey's Upper Big Branch
    mine. Gary Quarles, a miner who lost his son, testified that it
    was common for Massey Energy to provide advanced notice of the
    inspections to miners underground. Under the current Mine Act,
    that is classified as criminal misdemeanor. Misdemeanors tend
    to receive scant attention from prosecutors. In fact, not one
    advanced notice violation has been criminally prosecuted since
    1977, even though MSHA inspectors have had to seize phones at
    mines to prevent tip-offs.
        MSHA has secured injunctions, but the obstruction of
    justice continues because there is so little consequence to
    flaunting the law. We look forward to hearing from our
    witnesses on whether they support strengthening this provision.
        We would also like to hear whether our witnesses think
    miners who raise concerns about safety are adequately protected
    against retaliation under existing law. In Beckley, we learned
    that miners were fearful of making safety complaints because it
    was made very clear to them that their jobs would be on the
    line if they did.
        Alice Peters, whose son-in-law, Edward Dean Jones, was
    killed in that explosion, testified that he complained at least
    seven times about ventilation problems. But his supervisors
    told him that he would lose his job if he caused the mine to
    stop production.
        He was trapped. His son had cystic fibrosis, and he needed
    the job for health insurance.
        Of course, retaliation is not confined to West Virginia. In
    2007, a miner in Kentucky showed video of leaking underground
    seals to MSHA. It took 3 years of litigation, hundreds of
    thousands of dollars in attorney fees just to get the operator
    to pull the disciplinary letter from the employee's file.
        We will be asking our witnesses whether MSHA should reform
    the badly broken pattern of violations process to provide for
    timely sanctions when any mine operator, whether it is coal,
    metal or stone, chronically violates mine safety standards. Or
    should miners continue to be endangered while serial
    recidivists appeal citations for years on end before MSHA can
    act?
        Finally, Mr. Chairman, we would like to learn if the coal
    industry is adopting modern technologies such as coal dust
    explosivity meters to help prevent disasters, and whether
    Congress needs to take action, as we did in the MINER Act, to
    speed the modernization of mine safety and bring that Act into
    the 21st century.
        I look forward to hearing from each of our witnesses. What
    a great panel we have. Thank you.
        Thank you, Mr. Chairman.
        [The statement of Ms. Woolsey follows:]

     Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member,
                     Subcommittee on Workforce Protections

        Mr. Chairman, thank you for convening this important hearing. It
    has been 13 months since the Upper Big Branch disaster, yet Congress
    has failed to act on repeated requests from the Mine Safety and Health
    Administration (MSHA), miners and their families to modernize the Mine
    Act.
        MSHA has repeatedly asked for our assistance to provide them with
    better tools to protect all miners. They need reforms to a
    dysfunctional Pattern of Violations provision. They need stronger
    sanctions to penalize mine operators who provide advance notice. And
    they need basics like subpoena authority.
        Following MSHA's March 3 testimony which outlined the need and
    justification for legislation to modernize the Mine Act, Mr. Miller,
    Mr. Rahall and I re-introduced comprehensive mine safety legislation on
    April 15. It largely mirrors the Robert C. Byrd Mine Safety Protection
    Act that was brought to the floor last year and contains reforms that
    MSHA has requested.
        One year ago, on May 24 in Beckley, West Virginia, this Committee
    heard from the Governor of West Virginia and the families of miners who
    were killed at Massey's Upper Big Branch mine. Gary Quarles, a miner
    who lost his son, testified that it was common for Massey Energy to
    provide advance notice of inspections to miners underground. Under the
    current Mine Act this is classified as a criminal misdemeanor. Since
    misdemeanors tend to receive scant attention from prosecutors, not one
    advanced notice violation has been criminally prosecuted since 1977,
    even though MSHA inspectors have had to seize phones at mines to
    prevent tip-offs.
        MSHA even secured injunctions, but the obstruction of justice
    continues because there is so little consequence to flaunting the law.
    We look forward to hearing from our witnesses on whether they support
    strengthening this provision.
        We would also like to hear whether our witnesses think miners who
    raise concerns about safety are adequately protected against
    retaliation under existing law. In Beckley, we learned that miners were
    fearful of making safety complaints because it was made clear that
    their jobs were on the line. Alice Peters, whose son-in-law Edward Dean
    Jones, was killed in the explosion, testified that he complained at
    least seven times about ventilation problems, but his supervisors told
    him that he would lose his job, if he caused the mine to stop
    production. Dean was trapped: his son had cystic fibrosis and he needed
    the job for health insurance.
        Of course, retaliation is not confined to West Virginia. In 2007, a
    miner in Kentucky showed video of leaking underground seals to MSHA. It
    took 3 years of litigation and hundreds of thousands of dollars in
    attorney fees just to get the operator to pull the disciplinary letter
    from the employee's file.
        We will be asking our witnesses whether MSHA should reform the
    badly broken Pattern of Violations process to provide for timely
    sanctions when any mine operator, whether it is coal, metal, or stone,
    chronically violates mine safety standards. Or should miners continue
    to be endangered while serial recidivists appeal citations for years on
    end before MSHA can act?
        Finally, we would like to learn if the coal industry is adopting
    modern technology such as coal dust explosivity meters to help prevent
    disasters, and whether Congress needs to take action, as we did in the
    MINER Act, to speed the modernization of mine safety.
        I look forward to hearing from each of our witnesses today. Thank
    you.
                                     ______

        Chairman Walberg. I thank you.
        Pursuant to committee rule 7-C, all members will be
    permitted to submit written statements to be included in the
    permanent hearing record. And without objection, the hearing
    record will remain open for 14 days to allow questions for the
    record, statements and extraneous material referenced during
    the hearing to be submitted for the official record.
        It is now my pleasure to introduce our distinguished
    witness, Louis Griesemer--and I hope I pronounced that right.
        Did I? Am I close? Okay, thank you.
        Louis Griesemer is president and CEO of Springfield
    Underground, Incorporated. Mr. Griesemer has more than 30 years
    of experience in aggregate industry. After earning his
    engineering degree from Washington University in St. Louis, he
    began working full-time for his family's aggregate business as
    safety director and mine planner. Mr. Griesemer is a past
    chairman of the National Sand, Stone, Gravel Association's
    board of directors. Mr. Griesemer is testifying today on behalf
    of National Stone, Sand and Gravel Association.
        Mark Ellis is president of the Industrial Minerals
    Association, North America, which is the principle trade
    association representing the industrial minerals industry in
    North America. Mr. Ellis has unique experiencing having served
    as an attorney with the Federal Mine Safety and Health Review
    Commission and as a senior policy adviser to the assistant
    secretary of labor at MSHA. Mr. Ellis is a graduate of the
    University of Denver College of Law and its College of Business
    Administration.
        Cecil Roberts, Jr. is president of the United Mine Workers
    of America. Mr. Roberts held a variety of jobs within the coal
    mines of West Virginia before becoming a full-time union
    activist. He was appointed to serve as a member of the West
    Virginia University Institute for Labor Studies and Research
    Advisory Board in 1996. Mr. Roberts graduated from West
    Virginia Technical College and in 1997 received an honorary
    doctorate in humanities from West Virginia University of
    Technology.
        Anthony Bumbico is vice president of safety with Arch Coal,
    Incorporated, one of the largest coal producers in the United
    States. Mr. Bumbico directs the health and safety functions for
    each of Arch's subsidiary companies, which operate in six
    states and employs over 4,700 individuals. Mr. Bumbico was an
    underground coal miner for 7 years. Mr. Bumbico is testifying
    on behalf of the National Mining Association.
        And I welcome each of you.
        We will start with Mr. Griesemer.
        Thank you for being part of our witness panel.

        STATEMENT OF LOUIS A. GRIESEMER, PRESIDENT, SPRINGFIELD
    UNDERGROUND, INC., TESTIFYING ON BEHALF OF NATIONAL STONE, SAND
                          & GRAVEL ASSOCIATION

        Mr. Griesemer. Thank you, Chairman Walberg, Ranking Member
    Woolsey and members of the subcommittee for inviting me to
    testify on behalf of the National Stone, Sand and Gravel
    Association on worker safety and health. Also, we gratefully
    acknowledge this committee's work of last summer and the work
    of dedicated staff to focus mine safety reform on areas of
    greatest risk.
        I am Louis Griesemer, president of Springfield Underground
    in Springfield, Missouri. Springfield Underground was
    established by my father in 1946. I myself am an MSHA-certified
    safety trainer and got my start in the aggregates business in
    our safety department. I know our employees personally. They
    are committed to their work. And they are committed to safety
    on the job.
        The National Stone, Sand and Gravel Association represents
    the fresh stone, sand and gravel or construction aggregates
    industries. Its member companies produce more than 90 percent
    of the crushed stone and more than 70 percent of the sand and
    gravel consumed annually in the United States. There are 10,000
    aggregates operations in the United States. And 70 percent of
    the nation's counties are home to an aggregates operation.
        The crushed stone, sand and gravel industry has long been
    committed to the safest and most helpful possible production of
    aggregates. This has resulted in the safest period in our
    sector's history. This was the 10th year in a row in which our
    sector achieved a lower injury rate than in the prior year. Our
    workplace safety enhancements have come from constant efforts
    to train and remind employees of dangers they need to avoid.
        However, it seems that MSHA is not so focused. We believe
    that MSHA should work more with us on programs that help
    instill employees' genuine respect for the precautions that
    MSHA and the companies require to ensure they return home safe
    every night. Our industry CEOs have met several times with
    MSHA's leadership in an effort to work collaboratively to
    reduce injuries, illnesses and fatalities.
        Of increasing frustration to NSSGA members, however, is
    what the aggregates industry believes is inconsistent and
    unpredictable enforcement. A review of data shows that while
    injury rates continue to fall, there has been a substantial
    increase in citations labeled significant and substantial. It
    is only sensible to ask why is this happening and how can this
    be fair. We believe a more enlightened approach would be more
    effective in achieving positive results.
        The issuance of citations for each apparent discrepancy, no
    matter how unlikely it would ever contribute to a hazard,
    heightens frustration and inhibits collaboration. After all,
    only 3 years ago did the agency for the first time complete 100
    percent of the annual two inspections of surface and four
    inspection of underground facilities mandated in the act. This
    was well after our industry had begun its decade-long string of
    yearly reductions in injury rates.
        So for some, the two inspections for surface and four for
    underground operations may be appropriate. But for others, it
    may not be the best use of resources.
        This is especially true, we believe, given the severe
    budgetary constraints on the Federal Government and the ongoing
    economic slow-down. Moreover, if MSHA's resources are limited
    or reduced, we contend that a reduction in the number of
    inspections is preferable to reductions in compliance
    assistance, training and other areas that are helping industry
    improve safety. We would be pleased to work with MSHA and
    representatives of miners to update approaches to regulation
    and enforcement of mine safety.
        Furthermore, a specific point, we believe that
    modernization would be achieved if MSHA would establish a
    pattern of compliance program, which would give some form of
    credit to operators for outstanding adherence to MSHA standards
    and keeping low injury rates. It is anticipated that this would
    help the agency streamline and improve the efficiency of the
    inspection process, thus freeing resources to be targeted at
    areas of greatest risk.
        Ideas for this include providing credit for excellent
    compliance so that future citation assessments can see
    financial costs mitigated, allowing inspectors to issue a
    notice in lieu of citation for diminimus standard and/or
    elimination of citation if immediate abatement is accomplished
    by the operator and developing guidelines for inspectors
    directing that they focus their inspection hours on the most
    troubled operations. And if MSHA is interested in safety and
    health management systems, as reflected in the impending June
    rulemaking proposal on this matter, then perhaps MSHA could at
    least provide an incentive to operators, especially small ones,
    by granting credits against other enforcement actions such as
    reduced civil penalties in the manner described above for
    abatement credits. We respectfully urge, in the effort to
    modernize mine safety, that more be done in the area of
    assisting operators in compliance, allowing optimal resources
    to be focused on the areas of greatest risk.
        Thank you. That concludes my statement. And I would be
    happy to respond to any questions.
        [The statement of Mr. Griesemer follows:]

    Prepared Statement of Louis Griesemer, on Behalf of the National Stone,
                           Sand & Gravel Association

        Thank you Chairman Walberg, Ranking Member Woolsey and Members of
    the Subcommittee for inviting me to testify on behalf of the National
    Stone, Sand & Gravel Association (NSSGA) on worker safety and health.
    Also, we gratefully acknowledge this committee's work of last summer
    and the work of dedicated staff to focus mine safety reform on areas of
    greatest risk.
        I am Louis Griesemer, president of Springfield Underground in
    Springfield, Mo. Springfield Underground was established by my father
    in 1946. My whole career has been with Springfield Underground. I,
    myself, am an MSHA-certified safety trainer and got my start in the
    aggregates business in our safety department. I know our employees
    personally. They are committed to their work and they are committed to
    safety on the job. We are proud of the accomplishments of our team and
    we look forward to improving steadily.
        MSHA is integral to our operations. We are continually in the
    process of examining and maintaining our operations for compliance.
    Training of employees is an essential part of the process. My company
    has long been committed to worker safety, health and training. It is
    part of our commitment to all who work for us. Today, I am also the
    NSSGA co-chair of the MSHA-NSSGA Alliance, which has worked for a
    decade to establish useful training and education materials to enhance
    safety and health.
    Aggregates Industry
        The National Stone, Sand & Gravel Association represents the
    crushed stone, sand and gravel--or construction aggregates--industries.
    Its member companies produce more than 90 percent of the crushed stone
    and more than 70 percent of the sand and gravel consumed annually in
    the United States. There are more than 10,000 construction aggregate
    operations nationwide. Almost every congressional district is home to a
    crushed stone, sand or gravel operation. Proximity to market is
    critical due to high transportation costs, so 70 percent of our
    nation's counties include an aggregates operation. Of particular
    relevance to this hearing, 70 percent of NSSGA members are considered
    small businesses.
    Industry's Demonstrated Commitment to Health and Safety
        The crushed stone, sand and gravel industry has long been committed
    to the safest and most healthful possible production of aggregates.
    We're very pleased that this commitment to safety and health has
    resulted in the safest period in our sector's history. In fact, last
    year, we finished with an injury incidence rate of just 2.33 injuries
    per 200,000 hours worked. This was the 10th year in a row in which our
    sector achieved a lower injury rate than in the prior year. Also, this
    was the 19th of the last 20 years of consecutive rate reductions.
    Addressing the Causes of Accidents, Injuries and Illnesses
        Our workplace safety enhancements have come from constant efforts
    to train and remind employees of dangers they need to avoid. Just as in
    construction and manufacturing industries, primary dangers stem from
    the movement of heavy equipment. Employees must be constantly vigilant.
        Not only do injury rates continue to decline in our segment of the
    industry, fatal accidents also continue to decline. Last year there
    were about 30,000 fatalities in automobile accidents on the Nation's
    highways. Comparatively, there were 23 fatal accidents at metal
    nonmetal mines; there were five fatalities among aggregates operator
    employees. While every fatal accident is a tragedy, we believe this
    reflects a remarkable level of safety controls at these workplaces.
        As to what has been primary to our success, I would say that it has
    been a constant industry-wide effort to impress upon employees the
    importance of keeping their wits about them in the workplace, and not
    taking shortcuts. In spite of such training and reminders, there are
    still problems with employee compliance. No less than half of the fatal
    accidents last year were a result of employees' disregarding the most
    fundamental precautions around heavy equipment.
        However, it seems that enforcement by MSHA is focused on everything
    but employee personal responsibility and precautions. We wish that MSHA
    would work with us more on programs that help instill in employees
    genuine respect for the precautions that MSHA and the companies
    require.
        Year in and year out, MSHA inspections focus on a wide variety of
    things, many of which cannot be shown to have a material bearing on
    accidents or accident prevention--things such as adequacy of machine
    guards in inaccessible areas, fire extinguisher inspections on spare
    fire extinguishers, electrical ground testing on office equipment, the
    condition of the outer jackets of low voltage electrical cables, and so
    on. It is not that such things are unimportant. It is just that the
    most prevalent hazards are elsewhere. As long as human nature leads
    employees to believe they can take risks without consequences, we will,
    unfortunately, continue to experience serious accidents.
        In any event, we in the stone, sand and gravel industry are
    committed to doing our part in this regard, and we believe that we
    continue to make substantial progress because of our efforts. A number
    of factors have contributed to this success. The first is leadership.
    Since 2002, we have spearheaded an effort to enlist CEOs committed to
    safety and health. Our industry-wide Safety Pledge program is the
    vehicle for this. I am pleased that more than 70 percent of our
    operator facilities, which account for more than 90 percent of industry
    employees, are headed by a CEO who has personally signed the Safety
    Pledge.
    Safety Collaboration with Government
        We have a record of collaborating with government agencies, most
    notably MSHA, with which NSSGA signed an alliance agreement. This has
    given birth to a number of effective compliance assistance programs
    such as Safety Alerts derived from MSHA injury data. Furthermore, we
    collaborated with MSHA on the development of the ``Safety Pro in a
    Box'' program in which we culled excellent training resources from the
    Mine Academy and made them available free of charge to aggregates
    operators.
        Our industry's CEOs have met several times with MSHA's leadership
    to offer to work collaboratively to reduce injuries, illnesses and
    fatalities. In these meetings, we made a number of recommendations,
    including:
         Focusing enforcement on areas of highest risk;
         Improving communications between operators and inspectors
    to improve consistency in enforcement;
         Addressing the behavior component on safety and health,
    not just conditions;
         Ensuring that the metric for assessing MSHA's success is
    focused on demonstrable safety accomplishment--rather than continual
    escalation of enforcement (which has certainly been the trend), and
         Providing aggregates-specific training for inspectors so
    that safety challenges from another sector don't inappropriately affect
    enforcement in the metal/non-metal sector.
        On the second point--concerning improved communications--we
    appreciate it when the agency properly and timely informs stakeholders
    of intended areas of enforcement concentration and actions advised for
    compliance. Two such examples are the Rules to Live By initiative, and
    planned enforcement ramp-up of the 56/57.5002 airborne contaminants
    standard.
        At Assistant Secretary Main's request, we have lent assistance on
    key initiatives. We supported the ``Rules to Live By'' fatality-
    prevention program. We also answered Mr. Main's call to disseminate
    information about stepped-up enforcement of 56/57.5002, the airborne
    contaminants standard, and widely circulated our industry's
    Occupational Health Program for compliance assistance.
        In other instances, agency interaction with industry has been
    absent. A variety of enforcement initiatives were begun without notice
    and without stakeholder consultation. An example is truck scales. They
    are built by the manufacturers with rub rails, not guardrails.
    Suddenly, MSHA is enforcing a requirement for guardrails at virtually
    every scale in the country elevated more than 16 inches off the ground.
    As a result, many operators were caught by surprise and found
    themselves being cited for things that MSHA had always deemed compliant
    in the past.
    Regulatory Burden
        Returning to MSHA, we do believe that the agency has become unduly
    reliant on trying to add regulations that, in our view, are not likely
    to make material contributions to enhancing safety and health, but
    rather will increase bureaucracy, administration and paperwork cost for
    companies. We cannot regulate our way to zero injuries.
        Furthermore, MSHA should not add regulations that only increase
    opportunities for duplicate citations with respect to ``paperwork''
    compliance obligations that already exist. The agency is preparing to
    propose a rule likely to mandate the use of ``Safety and Health
    Management Systems'' (SHMS), on top of the standards mandated by the
    Mine Act. This one-size-fits-all approach to rulemaking may also
    produce a one-size-fits-all rule for the largest to the smallest
    operators for managing their operations. Yet, operators need
    flexibility to tailor their efforts at hazard and risk reduction and
    legal compliance to the specific size and complexity of their
    facilities. Unless done properly, this could significantly add
    compliance burden with little or no benefit to safety and health.
    Companies need to be able to focus on employee safety reminders and
    training in the field, not paperwork, and not more citations to be
    dealt with to no good safety or health advantage.
    Regulation by Policy
        Another concern is the issue of fair notice with respect to MSHA
    enforcement initiatives. The fact is that many MSHA requirements are
    coming at us without the type of rulemaking we think is required. As
    indicated above, MSHA has increasingly adopted novel enforcement
    policies without giving the industry advance warning or advice. The
    operator only learns of the changed interpretation once the operator is
    issued a citation by an inspector, often an inspector who found no
    fault with the identical condition previously.
        Earlier, I mentioned the example of guardrails for truck scales
    (which involve no small expense incidentally for questionable safety
    advantage, if any). Another notable example has to do with issues of
    fall protection and safe access for mobile equipment. Operators
    purchase large haul trucks, for example, that are fully fitted out with
    ladders and other means of access by the manufacturers. However, MSHA
    is now saying that the equipment as manufactured is not safe and must
    be retrofitted by the operator.
        No other federal law requires such changes to the equipment when it
    is used in any other industry as far as we know. In mining, many
    operators have found themselves receiving citations from MSHA requiring
    them to retrofit their equipment even though they have had no prior
    notice, and even though it is perfectly lawful for the equipment
    manufacturers to sell the equipment configured just as they manufacture
    it without the features demanded by MSHA. Needless to say, not only
    have mine operators not had fair notice, they are caught completely in
    the middle on these types of issues. Changes in requirements should
    come only through notice and comment rulemaking, not unilateral policy
    changes or ``guidance'' by MSHA.
    Enforcement Issues
        Of increasing frustration to NSSGA members is what the aggregates
    industry believes is inconsistent and unpredictable enforcement.
    Sometimes it appears that we must pay a heavy price for speaking up and
    seeking fairness. MSHA is training inspectors and then auditing them in
    the field, but the result seems to be heavier, not fairer, enforcement.
        The problem is further complicated. With MSHA's problems in cross-
    training inspectors in the various sectors of its jurisdiction (pointed
    out in dozens of recently issued Accountability Office audit reports
    from 2008-10), the agency recently decided to increase reliance on
    accountability teams to double-check inspector performance. This, too,
    was often followed by harsher enforcement.
        It seems clear to us that focus on ``accountability in
    enforcement'' has resulted in not more balanced enforcement, but rather
    increased numbers and severity of citations written by MSHA for fear
    that an inspector might be found to have missed opportunities for
    alleging violations (for example, if too few citations had been issued
    at the initial inspection). This comes in the form of follow-up
    inspections by another group of inspectors, which might include the
    original inspector, area supervisor and someone from district office,
    or from another district. Again, I must stress that, while all this is
    going on, our industry quietly and steadily proceeds on its own to
    become safer and safer. A review of data shows that while injury rates
    continue to fall, there has been a substantial increase in citations
    labeled--Significant & Substantial.' It is only sensible to ask, why is
    this happening and how can it be fair?
        The agency should improve its means of training inspectors on both
    recognition of hazards, and on the burdens imposed by inappropriate
    enforcement, including undue escalation in penalty assessments. After
    all, every elevated finding in a citation by an inspector converts to
    substantial dollar increases when penalties are proposed. For example,
    a single change in finding in a single citation could raise a $2,000
    penalty for that citation to $10,000.
        Penalty assessments for stone, sand and gravel operators are up
    more than double the levels from the period before the 2006 Miner Act;
    yet, in this time, our injury rates have continued to fall. The rates
    are falling because of good safety management, not civil penalties.
    This dichotomy--of more citations and more expensive enforcement
    despite excellent industry accomplishments--risks undercutting the
    cause for safety and health as well as the perception of MSHA as a
    respected government entity working for the common good.
    Ways in Which MSHA Enforcement Can Get it Wrong
        1. MSHA inspectors cite conditions that are not hazardous.
        2. MSHA inspectors cite violations, but over-write the gravity,
    e.g., an inspector asserting that a ladder in need of minor repair is
    ``highly likely'' to cause injury versus the more practical:
    ``unlikely,'' or ``reasonably likely.''
        3. MSHA inspectors cite violations, but over-write the negligence,
    e.g., a guard fell off a piece of equipment earlier in the day, and it
    is said to constitute ``high'' negligence versus ``low.''
        4. MSHA inspectors cite violations, but over-write by labeling them
    ``significant & substantial'' (that is, the violation could reasonably
    be expected to cause an injury of a reasonably serious nature). One
    such citation was issued for a piece of trash that was blown by the
    wind to within 25 feet of an electrical installation.
        5. MSHA inspectors demand abatement that is either unnecessary or
    inappropriate, which leads to increased costs that are in no way
    justified and typically cannot be recouped if the enforcement turns out
    to be wrong. For example, at one operator's plant, an inspector
    demanded that--due to an alleged fire hazard--expensive changes be made
    to a surge tunnel because of an ostensible fear of belt slippage. The
    citation was ultimately vacated, but not before the company was forced
    to squander $10, 000 in unnecessary abatements.
        6. MSHA inspectors issue threats about future enforcement if the
    operator does not divulge every single bit of information an inspector
    is seeking, including sometimes information from company records that
    are not part of MSHA compliance.
        7. MSHA is very often unwilling to correct an inappropriate
    citation until just before a hearing so that the agency does not incur
    a judicial loss concerning a standard deemed important for the agency's
    future enforcement.
        8. There is often a sense of threat from inspectors when they
    refuse discussion.
    Ideas for Improving MSHA Regulation of Safety & Health in the Future
        We believe that there could be a more enlightened approach to
    encouraging and assisting mine operators in their efforts to secure
    worker safety other than issuance of citations for each apparent
    discrepancy, no matter how unlikely that it would ever contribute to a
    hazard. We contend that the agency should be free to focus its
    enforcement resources on areas and operations posing the greatest risk.
    We believe that consideration should be given to the issue of whether
    mandatory minimum inspections twice a year for surface facilities or
    four times a year for underground are indispensible.
        After all: only three years ago did the agency for the first time
    complete 100 percent of the mandated two inspections of surface, and
    four inspections of underground facilities mentioned in the Act. This
    was well after our industry had begun its decade-long string of annual
    reductions in injury rates. So, for some, the two inspections for
    surface and four for underground operations may be appropriate, but for
    others it may not be the best use of resources.
        I think this is especially the case given the severe budgetary
    constraints on the Federal government.
        Moreover, if MSHA's resources are limited or reduced, we prefer a
    reduction in the number of inspections rather than reductions in
    compliance assistance, training and other areas that are helping
    industry improve safety.
        We believe there is often an excessive concentration of enforcement
    on the mine operator with no emphasis on contributions to violations
    from other parties, including individual employees when they act
    contrary to training and instructions, and independent contractors that
    are realistically outside the mine operator's control. We believe that
    MSHA could take stronger actions to help induce employee and contractor
    cooperation with mine operators on achievement of safety and
    compliance.
        For the future as well as now, we support further investment in
    compliance assistance by MSHA. For instance, we support the continued
    utilization of the very successful Small Mine Office, as it has been
    structured. We also encourage new cooperative initiatives.
        Behavior-based safety is a widely accepted concept instructing that
    all who are on a worksite hold some degree of responsibility for their
    own safety and health and the safety and health of others on the
    property. In fact, there is no way our industry would have achieved the
    reductions in injuries in the past ten years had it not been for
    company-wide programs aimed at safer work. Any expert in workplace
    health and safety would support this. And, our laws and enforcement
    should recognize this, as well.
        NSSGA would be pleased to play a central role in working to achieve
    the most enlightened regulations and enforcement possible under our
    existing mine safety and health law. There is precedent for this. In
    1997, NSSGA member companies joined forces with miners' representatives
    and MSHA to develop a key training regulation so that all stone, sand
    and gravel workers would obtain critical training. This resulted in
    training mandates much more appropriate to the stone, sand and gravel
    industry. In the same manner, we would be pleased to work with MSHA and
    representatives of miners to update approaches to regulation and
    enforcement of mine safety and health generally.
        Furthermore, a specific point: we believe that modernization would
    be achieved if MSHA would establish a Pattern of Compliance Program,
    which would give some form of credit to operators for outstanding
    adherence to MSHA standards and keeping low rates of injuries. It is
    anticipated that this would help the agency streamline and make more
    efficient the inspection process, thus freeing resources to be targeted
    at areas of greatest risk. Ideas for this include:
         Providing credit for excellent compliance so that future
    citation assessments received can see financial costs mitigated (for
    example, increase the good-faith credit from 10 percent back up to 30
    percent for timely abatement);
         Allowing inspectors to issue a notice in lieu of citation
    for a de minimis hazard, and/or elimination of citation if immediate
    abatement is accomplished by the operator;
         Developing guidelines for inspectors directing that they
    focus their inspection hours on the most troubled operations (for
    example, inspectors could only spend a limited amount of time
    inspecting operations with excellent compliance record versus camping
    out at a good operation for an unduly long time);
         And if MSHA is interested in Safety and Health Management
    Systems, as reflected in the impending June rulemaking proposal on this
    matter, then perhaps MSHA could at least provide an incentive to
    operators, especially small ones, by granting credits against other
    enforcement actions, such as reduced civil penalties, in the manner
    described above for abatement credits.
    Conclusion
        NSSGA appreciates this opportunity to present new ideas for
    enhancing worker health and safety. We respectfully urge that more be
    done in the area of assisting operators in compliance, allowing optimal
    resources to be focused on the areas of greatest risk. Thank you.
                                     ______

        Chairman Walberg. Thank you.
        Now, Mr. Ellis?

      STATEMENT OF MARK G. ELLIS, PRESIDENT, INDUSTRIAL MINERALS
                       ASSOCIATION--NORTH AMERICA

        Mr. Ellis. Chairman Walberg, Ranking Member Woolsey and
    members of the subcommittee----
        Chairman Walberg. Turn your mike on, please.
        Mr. Ellis. Thank you. Chairman Walberg, Ranking Member
    Woolsey, members of the subcommittee, I am Mark Ellis,
    president of the Industrial Minerals Association, North
    America, also known as IMA-NA. IMA-NA represents companies that
    extract and process a vital and beneficial group of raw
    materials known as industrial minerals. Industrial minerals are
    the fee stocks for many of the products we take for granted
    such as glass, ceramics, plastics, paper and building products.
    It is the unique chemical and physical properties imparted by
    these minerals which make them valuable.
        Mr. Chairman, thank you for inviting the industrial
    minerals industry to testify today. Our sector often is
    forgotten in the attention paid to other more familiar mined
    products. In many ways, the low profile of our industry is a
    testament to our ability to extract and process minerals using
    safe and responsible methods.
        My message to you today is three-fold. First, the safety of
    America's miners is the paramount responsibility of all who
    work in the mining industry. Second, I ask that we all spend
    some time today rethinking what initiatives will modernize mine
    safety. Finally, please recognize that not all mining is the
    same.
        The industrial minerals industry is proud of our
    contributions to reducing both the number and, more
    importantly, the rate of mining-related deaths, injuries and
    illnesses. But let us not lose sight of the fact that the
    measure of our success is the safety and health of the mining
    workforce. There is absolutely nothing more important than
    sending miners home safe and healthy at the end of each day.
        Mr. Chairman, if I were to ask you what the leading cause
    of injury is in the industrial minerals industry, what would
    you guess? Explosions, lung disease, falling rocks, or mobile
    equipment? In fact, ergonomic or musculoskeletal injuries
    represent 87% of the injuries in our industry. I can't say that
    the industrial minerals industry has eliminated all non-
    ergonomic hazards in the workplace, just as I can't say we have
    eliminated all unsafe behaviors. But our injury statistics are
    telling us something, and we are responding to that message. We
    want to address what is injuring our miners. So what have we
    done?
        We have partnered with the National Institute for
    Occupational Safety and Health, supported its research, and
    provided a variety of products to address ergonomic hazards in
    the mining industry. Our companies are responding. They are
    evaluating their workplaces for ergonomic hazards. They are
    training their mine personnel to eliminate unsafe behaviors.
    And they are installing controls. And they are preventing
    injuries, all without a single legislative or regulatory
    action.
        Yet another example of proactivity are member companies
    that mine and process 99 percent pure crystal and silica have
    developed a voluntary occupational health program that goes far
    beyond regulatory requirements, represents thousands of hours
    of work by dedicated professionals and, no doubt, is the
    primary cause for the virtual elimination of silicosis, the
    world's oldest occupational disease, from their workplaces.
        The companies do this, not because the law requires it, but
    because it is the right thing to do. This leads me to my second
    point, Mr. Chairman.
        It is time to rethink the types of initiatives that will
    modernize mine safety. We acknowledge that there have been
    recent preventable tragedies in the mining industry that only
    stand to highlight the need for continued vigilance. However,
    we believe that the mining industry is not in need of
    legislative reform and that the Mine Safety and Health
    Administration already has the statutory and regulatory
    authority it needs to compel compliance with the law by
    recalcitrant mine operators.
        This has been demonstrated recently by MSHA's utilization
    of its injunctive relief authority and its decision to finally
    begin placing mines on a pattern of violations status. MSHA
    should focus its resources and the power it already possesses
    where they are needed most.
        IMA-NA urges Congress and the Department of Labor to
    leverage the existing safety programs currently being utilized
    by the mining industry. We believe that America's miners would
    benefit greatly by implementing a program based on public-
    private partnerships, for instance, a program similar to OSHA's
    Voluntary Protection Program, and that doing so would be a more
    efficient use of MSHA's resources.
        It is important to note that not all mining is the same.
    The nonmetallic minerals sector of the mining industry simply
    does not present the same degree of hazard as other sectors. No
    fatality is acceptable, but we note that between 2003 and 2009,
    our fatality rate averaged nearly 80% less than the sector with
    the highest rate. We also should be noted that the nonmetal
    sector in the past has achieved the universally pursued goal of
    zero fatalities, most recently in 2006.
        In conclusion, modernizing mine safety is an ongoing
    activity, and the best results are achieved through
    collaboration between industry and government. Regulatory
    compliance and reasonable enforcement still is necessary.
    However, the measure of our success is not the number or the
    severity of the enforcement actions taken against mine
    operators, but the safety and health of the mining workforce.
    We also need to be prepared to recognize and acknowledge
    superior mine safety performance as readily as we condemn
    unacceptable performance.
        Thank you.
        [The statement of Mr. Ellis follows:]

                Prepared Statement of Mark G. Ellis, President,
                 Industrial Minerals Association--North America

        Chairman Walberg, Ranking Member Woolsey, and Members of the
    Subcommittee: I am Mark Ellis, president of the Industrial Minerals
    Association--North America, also known as IMA-NA. I also serve as
    president of the National Industrial Sand Association (NISA) and
    executive director of the International Diatomite Producers Association
    (IDPA), two minerals trade associations that also are members of IMA-
    NA. I have more than 30 years experience addressing mine safety and
    health matters.
        IMA-NA represents companies that extract and process a vital and
    beneficial group of raw materials known as industrial minerals.
    Industrial minerals are the feed stocks for many of the products we
    take for granted, such as glass, ceramics, plastics, paper, and
    building products. It is the unique chemical and physical properties
    imparted by these minerals that make them valuable. Minerals
    represented by IMA-NA include ball clay, barite, bentonite, borates,
    calcium carbonate, diatomite, feldspar, industrial sand, kaolin,
    magnesia, mica, soda ash, talc, wollastonite and a variety of other
    minerals. IMA-NA mineral sections typically represent 75-100% of the
    North American production of these industrial minerals.
        Mr. Chairman, thank you for inviting the industrial minerals
    industry to testify today. Our sector often is forgotten in the
    attention paid to other, more familiar, mined products. In many ways,
    the low-profile of our industry is a testament to our ability to
    extract and process minerals using safe and responsible methods.
        My message to you today is fourfold. First, the safety of America's
    miners is the paramount responsibility of all who work in the mining
    industry. Second, I ask that we all spend some time today rethinking
    what initiatives will modernize mine safety. Third, embracing
    technological innovation will modernize mine safety. Finally, please
    recognize that not all mining is the same.
    Safety Is The Paramount Responsibility
        The industrial minerals industry is proud of our contributions to
    reducing both the number and, more importantly, the rate of mining-
    related deaths, injuries, and illnesses. But let us not lose sight of
    the fact that the measure of our success is the safety and health of
    the mining workforce. There is absolutely nothing more important than
    sending miners home safe and healthy at the end of each day.
        Mining presents risks unique to minerals extraction and processing
    that must be recognized and taken seriously, and anyone who does not
    affirmatively and proactively minimize these risks has no business
    operating mines. But the people you encounter in the mining industry
    generally are good, ethical individuals, who are dedicated to the
    protection of those who work in our mines and processing facilities. In
    fact, we commend all those who seek to drive fatality and injury rates
    to zero, including the U.S. Congress, employees at the Mine Safety and
    Health Administration (MSHA) and the National Institute for
    Occupational Safety and Health (NIOSH), other government officials,
    labor unions, mining communities and families, mine management, health
    and safety professionals, the media, and last but not least the miners
    themselves.
        In the 33+ years since passage of the Federal Mine Safety and
    Health Act of 1977, the mining industry (and here I am referring
    collectively to the mining industry as a whole) has made significant
    gains in reducing both the number, and more importantly, the rate of
    mining-related deaths, injuries and illnesses. The industrial minerals
    industry is proud of our contributions to this effort and the successes
    together we have achieved. But let us not lose sight of the fact that
    the measure of our success is not the number or severity of the
    enforcement actions taken against mine operators, but the safety and
    health of the mining workforce.
        Mr. Chairman, if I were to ask you what the leading cause of injury
    is in the industrial minerals industry, what would be your guess?
    Explosions, lung disease, falling rocks, or mobile equipment accidents?
    In fact, ergonomic or musculoskeletal injuries from slips, lifting,
    repetitive movement and the like represent 87% of the injuries in our
    industry.
        A basic tenet of the safety profession is to first identify the
    hazard. I can't say that the industrial minerals industry has
    eliminated all non-ergonomic hazards in the workplace, just as I can't
    say we've eliminated all unsafe behaviors, but our injury statistics
    are telling us something and we are responding to that message. We want
    to address what is injuring our miners. So what have we done?
        IMA-NA formed and ergonomics task force in 2005. We partnered with
    the National Institute for Occupational Safety and Health (NIOSH),
    supported its research, and produced a variety of products to address
    ergonomic hazards in the mining industry. Our companies are responding,
    they are evaluating their workplaces for ergonomic hazards, they are
    training mine personnel to eliminate unsafe behaviors, they are
    installing controls, and they are preventing injuries; all without a
    single legislative or regulatory action.
        Our industry has not been timid in its embrace of public-private
    partnerships. We have formed another partnership with NIOSH and MSHA to
    address dust control because minimizing the hazards associated with
    exposure to respirable dust is a major priority for our companies. This
    particular effort will culminate shortly in the publication by NIOSH of
    a definitive resource document filled with information to help the
    minerals industry to manage dust control intelligently.
        And not insignificantly, we also have maintained an Alliance with
    MSHA that has been enormously successful in achieving substantive
    results ``beyond compliance'' and which has improved the already
    outstanding safety programs of our membership. A few examples of the
    successes achieved through this alliance merit attention. Each year we
    identify and honor best-in-class companies in the industrial minerals
    industry for their safety performance. This includes not only companies
    with the best overall safety performance, but individual mining
    operations that operate without injuries in excess of 200,000
    continuous work hours. We also generate and provide an analysis of
    safety performance at each company covering each of their individual
    operations. The goal here is to ensure that senior company executives
    know not only how their company and its constituent units are
    performing on the safety front, but how they compare to companies of
    similar size. Finally, I'd like to highlight that IMA-NA and MSHA
    jointly developed ``A Practical Guide to an Occupational Health Program
    for Respirable Crystalline Silica.'' The model program is based largely
    on material developed by MSHA and the National Industrial Sand
    Association. The NISA voluntary occupational health program goes far
    beyond regulatory requirements, represents thousands of hours of work
    by dedicated professionals, and no doubt is the primary cause for the
    virtual elimination of silicosis (the world's oldest occupational
    disease) from their workplaces. The companies did this, not because the
    law requires it, but because it is the right thing to do. IMA-NA thanks
    Assistant Secretary Main and his dedicated colleagues at MSHA for their
    continuing contributions to this Alliance.
    Rethinking What Initiatives Will Modernize Mine Safety
        This leads me to my second point. Mr. Chairman, it is time to
    rethink what types of initiatives will modernize mine safety. We
    acknowledge that there have been recent preventable tragedies in the
    mining industry that only stand to highlight the need for continued
    vigilance. However, the overall safety performance of the mining
    industry may be a surprise to some. For instance between 2002 and 2009,
    the fatality rate decreased by 49%, and the total injury rate decreased
    by 32%. Further, the mining industry compares quite favorably to other
    business and industrial sectors. In 2009, the total injury rate was 3.2
    for the mining industry as a whole (based on the number of injuries per
    200,000 hours worked). This rate is half that of many other business
    and industrial sectors. In fact, the mining industry's collective
    injury rates are below the 3.9 average for business and industry as a
    whole.
        We believe that the mining industry is not in need of legislative
    reform, and that MSHA already has the statutory and regulatory
    authority it needs to compel compliance with the law by recalcitrant
    mine operators. This has been demonstrated recently by MSHA's
    utilization of its injunctive relief authority and its decision finally
    to begin placing mines on a ``pattern of violations'' status.
        Today's approach to safety relies on such concepts as ``behavior
    based safety.'' Threats and intimidation have been proven to be
    ineffective in getting ``buy-in'' on safety. And ``buy-in'' is what is
    needed because what really matters is how people act when no one is
    watching.
        The mining industry has made considerable advancements in the
    development of safe processes and controls, and any efforts to improve
    mine safety should recognize the level of sophistication in modern mine
    safety management.
        Mr. Chairman, IMA-NA believes that the best solutions to protect
    the lives of miners emerge from joint public-private partnerships as
    opposed to over-reliance on ``command-and-control'' regulatory schemes.
    It is human nature to take greater ownership in something that you
    helped to create, and collaborative programs are destined to ``get-
    things-right'' from the outset as everyone has played a role in their
    creation.
        MSHA should focus its resources and the powers it already possesses
    where they are needed most.
        As members of this subcommittee likely are aware, MSHA's statutory
    mandate covers a mining industry workforce of about 350,000 miners
    working at fewer than 15,000 mining operations. By contrast, OSHA's
    statutory mandate covers the construction, agriculture and maritime
    sectors, and general industry, with in excess of 130 million employees
    working at millions of workplaces. And both MSHA and OSHA seek to
    fulfill their statutory mandates with roughly the same number of
    federal employees. One reason it takes so many MSHA inspectors to
    fulfill the agency's statutory mandate is that the Mine Act requires
    each underground mine to be inspected in its entirety four times per
    year and each surface mine to be inspected in its entirety two times
    per year. At some larger mines, that MSHA inspector presence can become
    almost a continuing presence. And these periodic inspections are
    mandated regardless of whether the mine demonstrates an exemplary
    safety performance or an unacceptable one. While these mandatory
    federal inspections without doubt have contributed in some measure to
    the steady improvement in mine safety performance, strict adherence to
    the mandate has prevented MSHA from re-allocating scarce inspector
    resources where they are needed most.
        IMA-NA urges Congress and the Department of Labor to leverage the
    existing safety programs currently being utilized by the mining
    industry. We believe that America's miners would benefit greatly by
    implementing a program based on public-private partnerships, for
    instance a program similar to OSHA's Voluntary Protection Program
    (VPP), and that doing so would be a more efficient use of MSHA's
    resources. Since OSHA launched the VPP in 1982, more than 2,000
    worksites have been approved for VPP status. VPP sites must demonstrate
    an effective safety and health program and operations must meet
    performance-based criteria for safety and health. Because this program
    is intended to promote a cooperative approach to workplace safety, the
    support of employees is a prerequisite for acceptance into the program.
    Worksites accepted into VPP are exempt from programmed inspections, but
    are subject to inspections generated by complaints, accidents, and
    other significant events. The program has generated impressive results,
    with the average VPP worksite having injury/illness rates that are
    approximately 50% lower than industry averages.
        Instituting programs such as this will allow MSHA to hold out the
    success of VPP participants to the rest of industry as examples of the
    benefits that can be derived from successful safety and health
    programs. Recognizing resource limitations at MSHA, a VPP-type program
    would be a fiscally responsible way to help promote safety and health
    success stories, while at the same time improving efficiency by freeing
    the agency to focus its scarce inspection resources on those companies
    and operations that truly merit attention and need assistance to help
    strengthen their programs.
    Embracing Technological Innovation Will Modernize Mine Safety
        Mr. Chairman, I would be remiss if I did not at least touch on the
    subject of technological innovation when discussing modernizing mine
    safety. This committee is to be commended for the technology-forcing
    provisions included in the MINER Act. While some intractable challenges
    do not lend themselves to technical solutions, solutions that work or
    offer promise should be embraced.
        I have one example that utilizes the controlled use of compressed
    air to clean ``take home'' dust from a miner's work clothes. The
    technology was developed in collaboration between an IMA-NA member
    company, that company's workforce, and NIOSH. In essence, the
    technology involves a clothes-cleaning booth that whisks the dust from
    the clothing and safely discharges it from the work environment. It has
    potential application at both MSHA- and OSHA-regulated work sites, but
    both agencies currently have regulations on their books addressing the
    use of compressed air that restrict the introduction of this
    technology. Both agencies have expressed interest in the technology
    informally, with MSHA approving its use in a limited number of
    instances under its petition for modification procedures. However, a
    rulemaking of general application is the preferred method to make this
    innovative technology more readily available, thereby reducing workers'
    exposure to potentially harmful respirable dust.
        Another example of cutting-edge technology involves the apparatus I
    have in front of me on the witness table. The so-called ``Helmet-CAM''
    uses a hardhat-mounted video camera to capture a video of tasks
    performed by a mobile worker throughout the workday with the worker's
    respirable dust exposure also displayed in real time on the video to
    better identify areas or tasks of high exposure. Combining these two
    different forms of information together allows for the identification
    of key processes and/or tasks that significantly impact a worker's
    personal dust exposure. Once areas of high respirable dust exposure are
    determined, work practices or control technology can be developed to
    address the potential overexposure. The work practices or control
    technology then can be re-evaluated to determine its effectiveness in
    reducing the worker's dust exposure. This technology also is the result
    of a collaborative effort between an IMA-NA member company, that
    company's workforce, and NIOSH.
    Not All Mining Is The Same
        It is important to note that not all mining is the same. The
    nonmetallic minerals sector of the mining industry simply does not
    present the same degree of hazard as other sectors. No fatality is
    acceptable, but we note that between 2003 and 2009 our fatality rate
    averaged nearly 80% less than the sector with the highest rate. It also
    should be noted that the nonmetal sector in the past has achieved the
    universally pursued goal of zero fatalities, most recently in 2006. To
    maximize advances toward our common objective of safe and healthy
    miners, the focus of any reform, legislative or otherwise, must focus
    on what is needed most and where the greatest benefit can be realized.
    The same easily can be said of enforcement and compliance assistance.
    Conclusion
        Modernizing mine safety is an ongoing activity and the best results
    are achieved through collaboration between industry and government.
    Regulatory compliance and reasonable enforcement still are necessary.
    However, the measure of our success is not the number or severity of
    the enforcement actions taken against mine operators, but the safety
    and health of the mining workforce. We also need to be prepared to
    recognize and acknowledge superior mine safety performance as readily
    as we condemn unacceptable performance.

                                     ______

        Chairman Walberg. Thank you, Mr. Ellis.
        Mr. Roberts, welcome.

    STATEMENT OF CECIL EDWARD ROBERTS, JR., PRESIDENT, UNITED MINE
                       WORKERS OF AMERICA (UMWA)

        Mr. Roberts. Well, thank you for having us here today. I
    appreciate this opportunity to speak on behalf of the coal
    miners that we represent and, quite frankly, many of the coal
    miners and other miners across this country we don't represent.
        I am also here today not only as the president of United
    Mine Workers, but I am also the chairman of the Health and
    Safety Committee for the AFL-CIO. And I will be speaking, and
    in some of my prepared remarks address nonmetal mining as well
    as coal mining.
        I think for 100 years, we had no laws in this country, for
    a lack of a better way of saying it. It wasn't until 1969 that
    Congress acted and passed laws with enforcement actions by the
    government. And that was in 1969 after a terrible tragedy up at
    the Farmington Number Nine mine in West Virginia. We still go
    there every year to honor those who perished, 19 of which are
    still entombed in that mine.
        The tragedy was of such horrific nature, all of the miners
    could not be recovered. The Congress saw fit at that time, and
    I think the nation demanded, that Congress act to protect the
    coal miners of this nation. And the question would be, well,
    does legislation protect coal miners. And I think that is a
    resounding yes.
        I think the statistics are very clear with respect to that.
    If you look at the 40 years prior to the passage of the 1969
    Act, 32,000 miners died in this nation's mines, coal miners.
    Forty years after the passage of the act, less than 3,200. We
    averaged 800 fatalities a year prior to the passage of the 1969
    Act. And we have obviously done so much better.
        We passed revisions to the 1969 Act in 1977 that brought in
    metal and nonmetal for the same kinds of protections that we
    afforded coal miners in 1969. And the results were exactly the
    same. We had a two-thirds reduction in the number of fatalities
    in metal and nonmetal.
        So it is almost impossible for anyone to argue that
    Congress acting has not helped protect coal miners and all
    miners in the United States of America and continues to do so
    every single day. We also know that we never recognized black
    lung, pneumoconiosis, as an occupational disease that was
    compensable in this nation until 1969. And we also know that
    70,000 coal miners have perished in the last 40 years from this
    terrible disease.
        So I think the statistics tell us that good laws passed by
    Congress, laws obeyed and laws enforced have saved many, many
    coal miners and other miners' lives in this country. You can't
    debate that. It is impossible for anyone to argue against that.
    That is the truth.
        Some will say, ``Well, things are so much better now.''
    Laws are not written for the people who work hard and try to do
    the right thing.
        You are absolutely right, Mr. Chairman. I have said before
    the United States Senate as well as the United States House of
    Representatives that I believe that somewhere between 90 and 95
    percent of the coal industry is trying very hard to do the
    right thing. And I would assume that that goes for all of the
    mining industry.
        But we have to understand there are people out there who
    are not doing the right thing. And we cannot ignore that fact.
        And just yesterday, after 29 miners died a year ago at
    Massey Energy's Upper Big Branch mine--by the way, I lost
    friends in that. I lost neighbors in that. I have lost people I
    knew all my life, played ball with and/or their kids or their
    grandkids. So that hit home personally for some of us at the
    United Mine Workers of America.
        Just yesterday, at the Randolph mine, just yesterday, Mr.
    Chairman--this happened yesterday. MSHA did an impact
    inspection at Massey's Randolph mine and issued 20 withdrawal
    orders, miners up into the face without controlling the dust,
    dust everywhere, two different pieces of equipment operating in
    the same location, all of this in complete violation of the
    laws that this Congress has written to protect coal miners.
        If we do not have strong enforcement of the laws that
    Congress writes, Congress should not write laws because they
    are useless if they are not protecting the coal miners in this
    nation. And I applaud what MSHA has done with the impact
    inspections.
        The other thing we do--Mr. Chairman and members of the
    subcommittee, need to do a couple things. I think Congress
    should be given a lot of credit for what they did in 2006. The
    one thing that I can report to you today that if the Sago mine
    disaster had occurred yesterday, we would have had one fatality
    instead of 12 because of the actions that Congress took in
    2006.
        You took the actions to say that shelters have to be in
    mines. At the time the 2006 legislation was being debated, many
    in the industry said, well, we can't comply with this. It won't
    work. It costs too much money. But I can tell you there is a
    shelter in every single coal mine in the United States or its
    equivalent.
        And one of the things that we did find from the Upper Big
    Branch explosion, the shelter that was in place there withstood
    the explosion. Water accumulated, and it did not destroy that
    shelter. And many of the people in the industry came here and
    said, well, you know what is going to happen. If you put these
    shelters in the mines, they are going to be destroyed in
    explosions. The miners won't have any place to go.
        And unfortunately, the Upper Big Branch miners had no place
    to go. They were killed almost instantly. And if they had had
    the opportunity to live for 15 minutes, they could have saved
    their lives by making their way to one of these shelters. So I
    applaud the actions of Congress for the actions they have taken
    in 1969 and 1977, in 2006. And I look forward to following the
    action Congress takes in the future. Thank you.
        [The statement of Mr. Roberts follows:]

                                    ------

        Chairman Walberg. Thank you, Mr. Roberts.
        Mr. Bumbico, welcome.

     STATEMENT OF ANTHONY S. BUMBICO, VICE PRESIDENT, SAFETY, ARCH
        COAL, INC., TESTIFYING ON BEHALF OF THE NATIONAL MINING
                              ASSOCIATION

        Mr. Bumbico. Mr. Chairman, members of the subcommittee,
    thank you for the opportunity to testify. I am Tony Bumbico,
    vice president of safety for Arch Coal. I am appearing today on
    behalf of the National Mining Association and as a
    representative of Arch.
        Arch is our nation's second largest coal company with
    operations in six states. We have 4,700 employees at our
    underground and surface mines. In 2010, we mined over 160
    million tons of coal while achieving the lowest injury rate
    among our nation's diversified coal producers. While we are
    proud, we are not satisfied. Injuries still occur at our
    operations, and we won't be satisfied until we reach zero
    injuries.
        I began my career in 1974 as an underground miner. I was a
    member of the United Mine Workers of America and later elected
    to a position on the union's executive board. For the last 25
    years, I have performed various management functions during
    which I have always been dedicated to promoting health and
    safety.
        During my career, the coal industry has made significant
    progress. But the industry can and must continue to improve its
    safety performance. In the time I have, I want to talk about
    the efforts underway at NMA to modernize mine safety and about
    the specific efforts underway at Arch.
        In 2007, NMA initiated an effort to identify barriers to
    safe performance and to disseminate best practice materials.
    This effort began with an examination of the industry's safety
    performance. NMA has studied companies with exemplary safety
    performance and identified certain common elements.
        Effective safety processes tend to be performance-based,
    integrated into a comprehensive management system. They are
    supported by senior management and encourage employee
    involvement. In NMA's estimation, these are the elements
    necessary to modernize health and safety in the U.S. mining
    industry.
        Leadership and culture are the characteristics that have
    guided Arch's effort to modernize safety. These characteristics
    have had a positive impact on safety throughout the mining
    industry. At Arch, safety is a core value. Our goal is to reach
    the perfect zero.
        Historically, Arch's safety performance has been solid. In
    2010, for example, our total incident rate, which measures lost
    time and medical injuries, improved to 1.1. That represents a
    76 percent improvement since 1998. We didn't achieve this level
    of performance overnight.
        Our safety process, when I arrived at Arch in 2004, began
    with the requirement that each operation meet minimum corporate
    standards. These standards were set forth as safety principles
    incorporated in division safety plans adopted by each
    operation.
        In 2004, we implemented a continuous safety improvement
    process to focus on identifying and closing measurable gaps in
    safety performance. That same year, we also started conducting
    cross-operational safety audits where we have people from
    different operations evaluate the core safety processes at
    their sister mines.
        In 2006, not satisfied with our pace of improvement, we
    adopted behavior-based safety as the vehicle to drive our
    safety performance to the next level. Every Arch operation has
    implemented a BBS process using steering teams to support their
    improvement efforts. The steering teams develop a list of
    critical behaviors with the potential to contribute to
    injuries. These critical behaviors serve as the basis for a
    peer-to-peer safety observation process.
        In a nutshell, BBS is a no-name, no-blame process that
    moves beyond the use of injury trends to identify safety
    performance. BBS is about encouraging employees to avoid
    exposing themselves to risk and sharing information about the
    exposures they encounter. It teaches miners about the concept
    of safety. Understanding the concept of safety improves the
    miners' ability to recognizes risks, respond appropriately and
    helps to build an effective safety culture.
        It has been 5 years since we implemented BBS, and we are
    seeing positive trends. Out total incident rate has improved 57
    percent. Exposures have been reduced by over 120,000 peer-to-
    peer safety observations. And over 3,100 specific barriers to
    safe performance have been identified and eliminated.
        BBS has helped our employees understand the concept of
    safety. But it is not the only tool available to modernize mine
    safety. We have come to recognize that modernizing mine safety
    requires leadership, culture, training and involvement,
    characteristics that don't result from writing more safety
    rules or enforcing them more stringently.
        Mr. Chairman, in my written testimony I will also discuss
    applications of voluntary protection program to modernizing
    mine safety. But in the interest of time, I will defer on that
    issue.
        In closing, I think it is critical that we all recognize
    that to improve safety performance, we need to move beyond the
    model based strictly on enforcement. Enforcement is necessary,
    particularly with bad actors. But to truly modernize mine
    safety, we have to develop performance structures that engage
    all stakeholders in problem-solving manner.
        Thank you for the opportunity to testify. I will be happy
    to answer your questions.
        [The statement of Mr. Bumbico follows:]

      Prepared Statement of Anthony S. Bumbico, Vice President of Safety,
         Arch Coal, Inc., on behalf of the National Mining Association

        Mr. Chairman and members of the Subcommittee, thank you for the
    opportunity to testify. I am Tony Bumbico, Vice President of Safety for
    Arch Coal, Inc. (Arch). I am appearing today on behalf of the National
    Mining Association (NMA) and as a representative of Arch.
        Arch Coal is our nation's second largest coal company with
    operations in six (6) states. We have 4700 employees at our underground
    and surface coal mines, preparation plants and ancillary facilities in
    Colorado, Kentucky, Utah, Virginia, West Virginia, and Wyoming. In 2010
    the Arch Coal subsidiaries mined over 160 million tons of coal that was
    shipped to domestic power plants in 39 states for electric generation
    and to international customers on four continents.
        The coal produced by our subsidiaries represents 15% of domestic
    production and 7% of the coal used for domestic energy generation. We
    are proud of the fact that our operations accomplished this while
    achieving the lowest reportable injury rates among our nation's
    diversified coal producers. While we're proud of this accomplishment,
    we are not satisfied. Injuries still occur at our operations. As a
    company we have more to accomplish and will not be satisfied until we
    reach our goal of zero injuries.
        I began my career in 1974 as an underground coal miner in West
    Virginia. I was a member of the United Mine Workers of America, and was
    later elected to a position on the International Union's Executive
    Board, a position I held for six years. Following my tenure with the
    UMWA, I worked the next 25 years in various safety, human resources,
    and operations positions in the coal industry. While I've worn many
    different hats, I've always dedicated my career to promoting health and
    safety. During my career, the coal industry has made significant
    progress in this area. I'm a firm believer, however, that the industry
    can and must continue to improve its safety performance.
        Before talking about Arch's specific efforts to modernize safety,
    I'd like to talk more broadly about the efforts to improve safety
    performance that are underway at the National Mining Association.
        In 2007, NMA initiated an effort to examine the barriers to
    improved safety performance and to disseminate best-practice materials
    across the industry. This effort began with an examination of the
    industry's safety performance. While most people would agree that
    notable progress has been made over the last two decades, the industry
    has not reached its goal of zero fatalities and injuries. Moreover, it
    appears that the reduction in fatalities has reached a plateau.
        Improving safety performance at our current pace is not acceptable.
    As a result, NMA has initiated an effort that will complement what's
    been accomplished and challenge the industry to take a more aggressive
    path to modernize and improve safety performance.
        NMA has studied, and continues to study, the safety practices of
    companies and industries from around the world that have exemplary
    safety performance. Successful safety processes all have certain common
    elements. They are integrated into an effective management system, are
    supported by senior management; involve their employees in the safety
    process; are reinforced by the organization's culture, and in return,
    support the culture.
        These elements are common to successful safety and health processes
    across all industries. In NMA's estimation, these are the elements
    necessary to modernize health and safety in the U.S. mining industry.
        Exemplary safety performers view adherence with regulatory
    requirements as the starting point, not as the finish. They recognize
    the limitation of enforcement as a means to improve performance. While
    compliance with the law is necessary and important, there are more
    effective ways to improve safety performance.
        To be effective, a safety system should be specifically designed to
    meet the unique needs of an organization. The design must consider the
    organization's culture, and its workforce. When designing a
    performance-based safety system it's important to remember that ``one
    size does not fit all.''
        In many respects overly proscriptive regulatory requirements can
    inhibit the ability of companies to respond proactively to health and
    safety issues. Often, the time spent dealing with bureaucratic
    requirements steals precious time that could be spent eliminating a
    barrier to safe performance. Enforcement is an important safety tool,
    but its ability to improve performance is limited. Quite simply, there
    are more effective ways to improve safety performance.
        One key thing we've come to realize is that risk-based safety and
    health management systems that involve employees are more likely to
    move safety performance to the next level. Experience shows that ``safe
    behavior'' doesn't occur in a vacuum, it's shaped by leadership and
    culture. These are characteristics that are taught and nurtured, not
    legislated.
    Arch Coal's Safety Process
        Leadership and culture are the characteristics that have guided
    Arch's efforts to modernize safety. We've had some success developing a
    strong safety culture by applying the concepts of leadership, employee
    involvement, and problem-solving to health and safety issues.
        At Arch, safety is a core value. It's integral to who we are. Our
    goal is to reach the Perfect Zero and we think this goal is achievable.
    Historically, Arch's safety performance has been solid. In 2010, our
    Total Incident Rate, which measures Lost Time and Medical Injuries
    improved to 1.10. That represents a 76% improvement since 1998. Over
    time, the Arch mines have performed well below the industry average. In
    fact, our five-year average is 72% better than the coal industry
    average. (Safety performance charts are attached.)

        (Note: An incident rate is a means of normalizing injury rates so
    that different size organizations can be compared. It is calculated by
    multiplying the number of incidents times 200,000 hours and dividing
    that number by the hours worked by employees at that site. The 200,000
    hours in the calculation represents the number of hours 100 people
    normally work in the course of a year).
        We didn't achieve this level of performance overnight. Our safety
    process was constructed in layers. The building blocks were put in
    place over time. I'll take a few minutes to discuss each of these
    components. They include:
         Division Safety Plans
         Cross Operational Audits
         Safety Improvement Process
         Behavioral Based Safety Process
    Division Safety Plans
        When I arrived at Arch seven years ago, they had a solid safety
    foundation in place. The center piece of their process was a
    requirement that each operation meet minimum corporate safety
    standards. These standards were set forth as safety principles. These
    principles were incorporated in Division Safety Plans adopted by each
    operation. Over time, our operations have built on that foundation.
        For example, each Arch operation must actively demonstrate a strong
    visible management commitment to safety; a working safety policy with a
    goal of Zero Injuries; and integrate their safety process into their
    organization. They must also establish line organization responsibility
    for safety; establish challenging safety goals and objectives; and
    require high standards of safety performance.
        Each Arch operation must also employ supportive safety
    professionals; conduct comprehensive injury/incident investigations;
    and provide employees ongoing safety training. Other examples of our
    core principles include progressive motivation; effective two-way
    communication; and comprehensive safety audits.
    Safety Improvement Plans (SIP)
        In 2004, Arch implemented a continuous safety improvement process.
    This is a systems-based, goal-oriented process that follows an annual
    cycle. It focuses our operations on identifying and closing measurable
    gaps in safety performance. The SIP process focuses on measurable
    results.
        Every year, each Arch operation develops a Safety Improvement Plan
    (SIP). Our operations analyze key safety performance metrics and
    establish between three and five improvement targets. Each SIP
    identifies what types of improvement interventions they plan to
    implement to achieve their targets. Our corporate safety professionals
    visit with them at the beginning and mid-way through each year to
    discuss their strategies and progress. At the end of the year, we
    evaluate what they've accomplished and start the process all over
    again.
    Cross Operational Safety Audits
        We also started conducting cross operational safety audits in 2004.
    Our cross operational audits supplement the safety audit process
    already in place at each operation. The concept is really quite simple.
    We take people from Mines A, B, & C and go to Mine D to evaluate its
    safety process. We use the audit to evaluate the health of a mine's
    Division Safety Plan; Safety Improvement Plan; and Behavior-Based
    Safety Process. We also use the audit to review their core safety
    processes.
        Our Cross Operational Audits are not intended to be ``wall-to-
    wall'' inspections. They are designed to obtain a ``snapshot'' of how
    the mine solves health and safety problems, and to evaluate what their
    employees know about health, safety, and injury prevention.
        Arch conducts four to five cross-operational safety audits per
    year. We attempt to emphasize constructive feedback. One of our primary
    objectives is to identify and share best practices. In addition, our
    Cross Operational Audit Process helps us to maintain our health and
    safety standards. It also serves as an employee development vehicle;
    and encourages employee involvement. Most importantly, it helps Arch
    visibly demonstrate its commitment to safety.
    Other Key Safety Processes
        I won't go into as much detail, but I'll mention a few other
    processes we've implemented to maintain our focus on continually
    improving safety performance, to address specific risks, and to build
    our safety culture.
        Arch holds an annual safety summit for key managers, safety
    professionals and hourly employees active in our safety process. This
    event has grown to include nearly 100 internal safety leaders. This is
    our annual opportunity to recognize safety accomplishments and
    establish new performance objectives.
        We also sponsor annual safety workshops to provide developmental
    opportunities for our safety professionals. In addition, we have
    designed and implemented specific health and safety processes to
    address performance issues related to contractor safety; emergency
    preparedness; crisis communications; and explosives safety.
        Behavior-Based Safety (BBS)
        The processes I've mentioned were all in place by 2006. They'd
    helped us improve, but we weren't satisfied. We felt we were having too
    many injuries and that our safety performance had reached a plateau. In
    fact our Total Incident Rate increased from 1.80 in 2005 to 2.57 in
    2006.
        As a company, we believed that one injury was one too many and we
    were confident we could improve. That's why we decided to adopt a
    Behavior Based Safety (BBS) process. It's the vehicle we chose to drive
    our safety performance to the next level.
        Since 2006, every Arch operation has implemented a BBS process. BBS
    is a safety improvement process that starts with analyzing the ``safe''
    and ``at-risk'' behaviors involved in the daily tasks employees
    perform. Each Arch site has assigned a Management Sponsor, appointed a
    Facilitator, and established a Steering Team to support their BBS
    process.
        The Steering Team normally consists of hourly employees. It starts
    by developing a list of ``critical behaviors'' with the potential to
    contribute to safety related incidents. This list of ``critical
    behaviors'' serves as the basis for a peer-to-peer safety observation
    process.
        The Steering Team trains observers on how to use the critical
    behavior checklists to identify exposures that may lead to injuries.
    The observers provide their peers with feedback on whether behaviors
    are ``safe'' or ``at-risk.'' The data gathered during the observation
    process is entered into tracking software to help identify ``at-risk''
    trends and barriers to safe performance. This trend information is used
    to solve safety problems, identify improvement opportunities, and
    remove barriers to safe performance.
        The BBS process implemented by Arch was designed by Behavioral
    Science Technology, Inc. (BST). While there are other BBS processes
    available, we chose BST because it was a systems-based improvement
    process that focused on the entire organization's leadership and
    culture.
        Arch initiated the BBS process at our mines by conducting a
    comprehensive organizational assessment. The assessment analyzed key
    organizational dimensions that predict safety performance. The
    leadership team at each of our mines also participated in an evaluation
    and coaching process. Training was conducted to teach supervisors how
    to support the process, and employees were trained in data collection
    and problem-solving techniques.
        The Arch operations have effectively implemented BBS. Now our focus
    is on sustaining the processes. We're attempting to do this by
    integrating BBS into our traditional safety process and our culture.
    We're also taking every opportunity to demonstrate visible safety
    leadership.
        In a nutshell, BBS moves beyond the use of injury trends to measure
    safety performance and identify improvement opportunities. Injury
    trends are not predictive. They don't necessarily reflect the risks
    employees are exposed to because people are often lucky. They take
    shortcuts and get away with it. This leads to complacency. Before you
    know it they assume they can take the shortcut and not get hurt because
    (as the refrain goes) ``we've always done it that way before.''
        Instead of relying solely on injury trends as the primary safety
    indicator, BBS focuses on identifying and reducing ``at risk
    behaviors'' and reinforcing ``safe behaviors.'' The process helps to
    identify risk-related exposures and barriers to safe performance that
    can potentially cause injury. Basically, employees are encouraged to
    not take the chance of exposing themselves to risk, and to share
    information about the exposures they encounter.
        Is Arch's BBS process working? We think so. It's been five years
    since we started this process and we're seeing positive trends in a
    number of key areas.
         Our Total Incident Rate has improved 57% from 2.57 in 2006
    to 1.10 in 2010.
         Exposures have been reduced by 119,477 peer-to-peer safety
    observations.
         Safe behaviors are being reinforced by our 2,714 trained
    observers.
         Over 3,160 specific barriers to safe performance have been
    identified and eliminated.
         Our safety culture has been strengthened by making contact
    with 151,498 employees during the observation process.
         Our BBS Facilitators and Steering Team members have
    developed into a new core of safety leaders.
        Ultimately BBS has made our safety culture and process stronger. It
    has helped by involving more employees in the safety process; improved
    communication flow within our organization; and upgrading the problem-
    solving skills of our employees. Here's what some of our facilitators
    said at a recent meeting about the BBS process:
         The process involves the workforce and empowers them to be
    self-directed in improving safety.
         The process holds employees accountable for their own
    safety performance.
         BBS empowers people to change in a positive way.
         BBS provides a format for structured problem-solving that
    can be applied to all areas, not just safety.
    The Concept of Safety
        Arch's BBS process is working because it teaches miners about the
    ``concept of safety.'' Most major mine operators know the critical
    competencies miners need to reduce the risk of injury or illness.
    Miners need training in basic health and safety regulations, the
    technical skills they need to do their job, and emergency/escape
    preparedness skills. Most major mining companies address these
    competencies fairly well.
        In my opinion, the biggest challenge we face in the mining industry
    is helping miners to understand the ``concept of safety'' and integrate
    them into an effective safety culture. Effective safety performance
    requires two key things. You have to improve the ability of miners to
    recognize and respond appropriately to hazards; and you have to
    convince them your company is serious about safety.
        Understanding the concept of safety improves a miner's ability to
    recognize risks and respond appropriately. This is made more complex
    because mines aren't assembly lines. They are dynamic ever-changing
    environments with conditions and risks that change rapidly. Miners have
    to be able to safely adapt to a changing environment.
        What this means is that--unlike a controlled environment--you can't
    rely on rote learning techniques or prescriptive safety rules to ensure
    safe performance. That's why writing more safety rules and enforcing
    them more stringently is not an effective way to improve safety
    performance in coal mines.
        You have to provide miners with higher level analytical and
    problem-solving skills. In terms of hazards, miners need to be capable
    of thinking at a conceptual level. They need to have the ability to
    recognize new exposures as conditions change. Safe miners are effective
    risk identifiers, decision-makers, and problem solvers. Involvement in
    BBS has helped our employees improve these skills. By focusing our
    employees on critical behaviors, BBS is increasing their understanding
    of the ``concept of safety.''
        I'd like to turn to baseball to illustrate this point. Ted Williams
    was one of the most prolific hitters in baseball. He once said that * *
    *
        ``A hitter just can't go up there and swing. He's got to think.
    Listen (he said) when I played I knew the parks, the mounds, the
    batter's box, the backgrounds. I studied the pitcher. I knew what was
    going on at the plate. It used to kill me to strike out, but when I
    struck out I knew what got me and what I was going to do about it.''
        Ted Williams was an effective hitter because he understood the
    ``concept'' of hitting. He understood the mental, as well as the
    physical, aspects of his trade. Ted Williams understood the critical
    behaviors that contributed to his success on the baseball field. That's
    why he was a master of his craft.
        BBS is helping our employees ``master'' the concept of safety. A
    master is one who has superior skill or knowledge. An individual or
    team with the knowledge and skills to solve problems and creatively
    eliminate barriers to safe performance. Regulations don't develop
    masters. Masters are shaped by leadership, culture, training and
    involvement.
    Voluntary Protection Program
        We have found that performance-oriented, systems-based safety
    processes that involve employees help drive safety performance. Along
    this same line of thought, we believe safety performance would also be
    enhanced if MSHA adopted a program for mine safety modeled on the very
    successful Voluntary Protection Program (VPP) administered by the
    Occupational Safety and Health Administration (OSHA). The VPP, created
    in 1982, allows those employers who meet performance-based health and
    safety criteria to be removed from programmed inspection lists. OSHA
    will not issue citations for standards violations that are promptly
    corrected so long as the worksite continues to exceed the VPP
    standards. The VPP promotes a cooperative approach to workplace safety.
    Employee support and involvement is a prerequisite for acceptance into
    the VPP.
        It's important to note that the VPP complements OSHA's enforcement
    activity, it does not replace it. MSHA could tailor a program in the
    same manner. VPP allows OSHA to focus its inspection resources on
    higher-risk worksites and would permit MSHA to do the same. This will
    become an increasingly important consideration as OSHA and MSHA alike
    are compelled to render resource allocation decisions in a time of
    budgetary limitations.
        Once a worksite is accepted into the VPP program, it must prepare a
    self-evaluation annually to be submitted to OSHA along with injury and
    health rates. All compliance standards and worksites remain subject to
    OSHA inspections generated by complaints, accidents or other
    significant events. Because VPP participants develop and implement
    systems to prevent employee injuries and illnesses, the average VPP
    worksite has a lost workday incidence rate at least 50 percent below
    the average for its industry.
        Since its inception, the VPP has steadily expanded the number of
    worksites participating in the program. They are located in every state
    and cover more than one million employees. In addition, since 1992,
    states have started their own VPP programs. Today hundreds of worksites
    participate in State VPP programs. In 1997, recognition of the
    program's success resulted in it being expanded to allow federal
    worksites to participate.
        To improve and modernize mine safety, we need to operate more
    effectively. To improve safety performance, we need to move beyond a
    model based strictly on enforcement. Enforcement is necessary,
    particularly with regard to ``bad actors,'' but to truly modernize mine
    safety we have to develop performance structures that engage all
    stakeholders in a problem-solving manner.
        Performance structures based on risk-based approaches that
    establish higher standards, engage employees, and encourage cooperation
    simply make sense. If MSHA were to adopt a VPP-type process it would
    move the industry in that direction.
    Closing
        Mr. Chairman, thank you for the opportunity to testify. I would be
    happy to answer any questions.
                                     ______

        Chairman Walberg. I thank each of you for your testimony.
    And now we will move to questions from the panel here. And I
    look forward to beginning.
        Mr. Griesemer, in your written testimony you cite examples
    of MSHA inspectors lacking consistency in their citation
    process. I personally heard many illustrations and examples of
    how an inspector will write a violation for something that
    another inspector said was acceptable only months prior. I also
    hear of inspections that result in high numbers of citations
    that go on to be found to have no merit.
        You suggest that this problem of inconsistency may stem
    from cross-training inspectors in various sectors of
    jurisdiction. Do you believe the inconsistencies found in this
    citation process result from inspectors inserting a great deal
    of subjectivity to the citation process rather than using
    objective standards?
        Mr. Griesemer. Mr. Chairman, I believe that there is an
    effort by MSHA to be consistent. But I believe there is a--let
    me give you a couple of examples. I just had a couple citations
    a week ago at our Open Pit plant in Joplin, Missouri. And I
    think they pretty much illustrate some of the issues that small
    operators like myself are dealing with.
        And one of these citations is justifiable. One of our
    stockpile truck drivers dismounted his machine after setting
    the parking brake, left the machine unattended for a couple of
    minutes and then came back. Under the rules to live by, we are
    now very focused on chocking wheels for heavy equipment like
    that. And what he did was not appropriate.
        But this is a shifting standard. I think we could say 10
    years ago, that that may not have been a citation. But today,
    we are focused on power and haulage, which is responsible for,
    I think, last year, it was seven deaths and injuries. So we
    have to raise the bar.
        And I am in agreement with that. The problem is I went out
    to that plant in the fall and instructed our miners that this
    is an initiative. This is something we have to--we have to
    comply with. We supplied the wheel chocks. We supplied the
    training. But it is still one of those patterns, those patterns
    of behavior that have to be adjusted.
        That was a 7-year employee stockpile truck driver doing his
    job and making that decision as to whether he was going to be
    off that truck long enough to chock the wheels. This resulted
    in a citation that is a significant and substantial citation
    with possibility of a fatality being highly likely.
        An instance of what will be a contested violation is we
    were cited on a maintenance truck that was located at the
    plant. The backup alarm on it was not--could not be heard above
    the surrounding noise levels. This maintenance truck had a
    backup alarm, but the inspector decided it couldn't--it wasn't
    loud enough.
        We took that back to the shop and determined that that
    backup alarm was above the 85 decibel levels that would require
    hearing protection. I don't know where to go with that kind of
    a citation because everybody is correct in that instance. It
    couldn't be heard above the ambient noise levels, but then you
    are going to require the operators to wear hearing protection.
    You are not going to hear the backup alarm.
        Chairman Walberg. Cover against it? Yes.
        Mr. Griesemer. So these are specific examples. This
    happened on April 26th of this year. These are the things that
    the small operators are having to deal with and trying to
    comply with this type of enforcement, which we feel like is not
    necessarily appropriate for our type of operations.
        We would need more help. We would suggest that rather than
    spending the resources on more inspections and heavy-handed
    enforcement, that more assistance be given to small operators
    so that we can change the behavior of our employees when there
    is this kind of raising of the bar of what is expected as far
    as safe behavior.
        Chairman Walberg. I appreciate that.
        Mr. Ellis, in your written testimony, you discuss use of
    technology, I think, that is laying in front of you here. Maybe
    you could describe that and describe why that isn't receiving
    wide usage.
        Mr. Ellis. I would be pleased to, Mr. Chairman.
        Chairman Walberg. And you have a short period of time here,
    but do the best you can.
        Mr. Ellis. Understood. This device was developed in concert
    between one of our member companies, their workforce and the
    National Institute for Occupational Safety and Health. These
    are producers of crystalline silica, which is a potential cause
    of silicosis, a deadly or disabling lung disease.
        What this device does is it combines two different
    technologies and merges them together. There is a video camera
    that is mounted to that hard hat. And the wearer of the hard
    hat then can show everything he is looking at or working on.
        Also involved in here is a sampling device that extracts
    respirable dust of a certain size, 10 micrometers or less. And
    that is fed into a particle counter, which then measures what
    that miner's exposure is.
        And so, as this person is wearing this device, eventually
    the two technologies are merged that produce a video in real-
    time that shows what the miner is doing as well as what his
    respirable dust exposure is. And it is particularly well-suited
    for people that do a variety of tasks around a mine, like
    somebody involved in maintenance where they are checking here
    and then they are moving off to another location. We can
    identify where high exposures are and then look at trying to
    modify either work practices or institute control technologies
    to control those exposures.
        Chairman Walberg. Okay. Well, I wish I had more time to
    question, but I have got to abide by my own rules, at least to
    a point here.
        So I will turn the questioning over now to the gentlelady
    from California, Ranking Member Woolsey.
        Ms. Woolsey. Thank you, Mr. Chairman. We can go around
    again, you know.
        Mr. Roberts laid it out. Safety laws and regulations have
    made a difference. And workforces are safer because of OSHA and
    MSHA, period.
        Mr. Bumbico, you supported it in your testimony. You said
    virtually the same thing. And I really respect that.
        So the question is how do we look at where we were 40 years
    ago, where do we need to be now. And what does modernizing
    mean? Because we are not in the 21st century. Ergonomics, who
    even knew the word 40 years ago when we started with this whole
    thing? So we have a lot of work to do.
        And it is very clear that employers--let us assume every
    employer here and most employers do the right thing. So the
    question is what are we going to do to protect the workers at
    the work sites where there are what we call bad actors that
    repeat and repeat and continue to do the same things over and
    over.
        Because you see, when we have voluntary compliance,
    voluntary safety, then the companies that play by the rules
    voluntarily spend more money to take care of their workers. It
    is not a level playing field then for the competition. The guys
    who don't do it, everything is cheaper for them. So that is not
    right for you, either. So the question is what do we do.
        And so, I am going to ask you first, Cecil. What is your
    response to the industry arguments that counting citations
    instead of final orders unfairly deprives them of due process?
        Mr. Roberts. I think that speaks directly to the Pattern of
    Violations. If you go back to 1989, the UMWA was concerned
    about this. And I think there is testimony on record here that
    we suggested that if you only use final orders, which means
    that this entire process has taken place on appeals--and we
    know there are 19,000 cases backed up as we speak. So let us
    think about that for a moment.
        And I hate to continue using Upper Big Branch as an
    example, but the violations that Upper Big Branch had on
    appeal, some of which are setting at the Review Commision now,
    and they had not been finally adjudicated and they may not have
    been for another year and assume that the mine had not had the
    terrible tragedy that it did. But we would still be trying to
    adjudicate some of those citations. And the very first thing
    that most in the public and most in Congress said immediately
    upon the explosion was, why didn't the government close down
    this operation.
        The way the system is working right now is that, if you
    can't get under a Pattern of Violations until the final order
    is issued, you would have had a problem in 2008. The final
    orders might have been adjudicated in 2010. You may have
    corrected the problem by 2010, but people were in jeopardy in
    2008. The system simply isn't working.
        Ms. Woolsey. They died.
        Mr. Roberts. And I think we have to decide do we want to
    protect the nation's coal miners, or do we want to have an
    opportunity for the appeal process and fairness to the coal
    industry itself? I think we have to come down on the side of
    protecting the coal miners. I think if we had Upper Big Branch
    to do over, everyone around here would agree with that.
        Ms. Woolsey. So, Mr. Bumbico----
        Mr. Bumbico. Bumbico.
        Ms. Woolsey. Bumbico?
        Mr. Bumbico. Yes.
        Ms. Woolsey. Okay, let us keep going with this. What does
    NMA have--what are their thoughts on proposals to enable MSHA
    to place bad actors on POVs? Or do they think the status quo
    works?
        Mr. Bumbico. We agree with the concept of Pattern of
    Violation and the need to ferret out operators that aren't
    playing by the rules. I think what we disagree is the method
    with which MSHA would propose to go about enforcing that.
        Ms. Woolsey. So how would you go about it?
        Mr. Bumbico. With regard to the final orders, I think I
    would call to the subcommittee's attention the fact that 20
    percent of the S&S violations that are contested end up getting
    modified. And if you look at more elevated orders like 104-Ds,
    that over 30 percent get modified. In addition, I think that
    what you are seeing within the industry right now is an influx
    of a lot of new inspectors. And in a recent survey----
        Ms. Woolsey. Well, you have got all that, the training and
    all that. We don't fund MSHA, so what are we going to do? I
    mean, if I were you, I would be sitting there saying, ``Get us
    the best inspectors we can, train them, and make sure they are
    out there. And we will support that investment.''
        Mr. Bumbico. I think the biggest fault that we had with the
    previous way the Pattern of Violation was operated is that the
    type of changes that MSHA was requesting weren't the type of
    process changes that would lead to long-term safety
    improvement.
        Ms. Woolsey. Well----
        Mr. Bumbico. They were safety awareness programs that might
    be a quick fix and lead to a short-term result. But in terms of
    long-term, continuous improvement, they weren't insisting on
    those type of changes.
        Ms. Woolsey. On short-term. But we are talking about the
    long-term Patterns of Violations that are going to eventually
    end up in a very serious situation like Massey. And that is
    what we are going--we are going after the bad actors first.
        Chairman Walberg. Thank you. Gentlelady's time is expired.
        We will move on to the chairman of the full committee, the
    gentleman from Minnesota.
        Mr. Kline. Thank you, Mr. Chairman.
        Thank you to all the witnesses for your testimony.
        Mr. Bumbico, sort of picking up the general theme here, it
    seems to me that the industry was pretty supportive of the
    Miner Act in 2006. And Mr. Roberts has indicated the union's
    support of that legislation.
        And yet, I am pretty sure that the industry has not been
    that supportive of Best Miner--or the Miner Safety and Health
    Act. Can you kind of explain why that is, why support of one
    and what is the problem with the others, as we are looking at
    what we might do in this committee and the full committee and
    Congress in light of the Upper Big Branch tragedy? What are
    your concerns? What is the difference?
        Mr. Bumbico. I think the difference is that in 2006, there
    was a pretty equal playing field and a lot of give and take on
    the various stakeholders. And in the most recent attempt to
    look at legislation, there were a number of companies that
    attempted to enter into discussions, but we weren't able to
    satisfy the concerns we had.
        And some of the concerns we had were, one, there were a
    number of items that were in that bill that, in effect, could
    have been done anyway by MSHA. And, in fact, if you look at the
    rock dust standard, if you look at the pattern of violation,
    there were a number of things there that MSHA has moved forward
    on without the need for legislation.
        In addition to that, there were some provisions in that
    bill, such as the changing definition of S&S citations, that
    would have made it extremely difficult for any violation not to
    have been an S&S. So those were issues that kind of hung up the
    process.
        I think, you know, the biggest concern that we have is that
    the average front line supervisor right now has over 300 pages
    of regulations in the code of regulations that they have to
    deal with on a day-to-day basis. I think we would be better
    served to try to improve the way that they understand and deal
    with what is on the books now than creating additional
    legislation.
        Mr. Kline. Okay, thank you. I am going to stay with you,
    Mr. Bumbico, for another question, kind of shifting and
    thinking about how different countries have different
    approaches. And Australia, for example, has a very different
    approach that I assume that you are familiar with in their risk
    management. Can you explain for all of us here the differences
    and what you like or don't like about those differences?
        Mr. Bumbico. Well, the fundamental difference is the
    difference between prescriptive regulations and a requirement
    that an operator look at the major risks and hazards that they
    have and come up with ways of dealing with them. Under the
    Australian model, those mining companies are charged with
    evaluating their major risks and coming up with procedures,
    processes that they put in place to deal with them without as
    much prescriptive regulation on the part of government.
        In the U.S., we have very detailed, prescriptive
    regulations that they deal with things one, two, three, four
    progression. And the problem with that is that when you look at
    a coal mine, a coal mine is a very dynamic, changing
    environment. And if you focus strictly on prescriptive ways to
    deal with safety, you kind of lull people into the suspicion
    that if they do a, b and c, that d is automatically going to
    result.
        I think what we have to get to here in this country is
    moving the conceptual skills of people, from the safety
    standpoint, to a higher level. We have to help miners become
    better problem solvers, risk identifiers so that they can deal
    with the changing environment that they deal with in an
    underground and a surface coal mine.
        Mr. Kline. So in Australia, for example, the mine operator
    identifies a risk, assesses a risk and develops a program to
    address them. And then who oversees that?
        Mr. Bumbico. They have oversight from the government, but
    it is more oversight on what they put in place to determine
    whether they are--you know, whether they are complying with
    that.
        Mr. Kline. Okay, thank you.
        I was going to go to Mr. Griesemer and talk about agri-
    mining and training, but in compliance with the chairman's
    rules and my ever-desperate hope that we will all comply by the
    lighting system, I will yield back.
        Chairman Walberg. Thank you for the continuing mentoring,
    Mr. Chairman. I appreciate it.
        Now we will go to the----
        Mr. Kline. [Off mike.] Mr. Miller----
        Chairman Walberg [continuing]. The gentleman from
    California, Mr. Miller.
        Mr. Miller. Thank you very much, Mr. Chairman. And thank
    you for having this hearing.
        Mr. Bumbico, in response to Chairman Kline's question, your
    difference in last year's legislation and before is that you
    say that MSHA has the authority to do this, so you don't--do
    you support their effort to go to citations versus final order?
        Mr. Bumbico. No, I don't.
        Mr. Miller. Do you support their rock dust changes?
        Mr. Bumbico. Yes, I believe that there is pretty much a
    consensus within the industry that what they have done from a
    rock dust standard standpoint is a good thing.
        Mr. Miller. What would you do about whistleblowers?
        Mr. Bumbico. Whistleblowers, I believe, at this point have
    adequate protection under the existing law.
        Mr. Miller. What happened to the person that you fired for
    showing the video of the leaking water seals?
        Mr. Bumbico. I think----
        Mr. Miller. Was that retaliation against a whistleblower?
        Mr. Bumbico. I think you are mischaracterizing what
    occurred there.
        Mr. Miller. You characterize it for me.
        Mr. Bumbico. Sure. One, I am not going to talk into great
    detail because that issue is currently matter of civil
    litigation. But I will say this: The individual questioned took
    a video camera underground and did a tape of seals that were
    leaking. Instead of calling that to the attention of mine
    management or instead of calling MSHA and complaining about the
    problem, he took the videotape and brought it to a public
    hearing to show it. And then after the fact----
        Mr. Miller. So he never addressed it prior--he never
    addressed this prior with you, the company?
        Mr. Bumbico [continuing]. The issue was dealt with. No. The
    individual questioned----
        Mr. Miller. I don't think that is what the record shows.
        Mr. Bumbico [continuing]. In fact, was not fired, as you
    characterized it, for the action in question. He was laid off
    in a reduction in force pursuant to the----
        Mr. Miller. So what is your--what is your position----
        Mr. Bumbico [continuing]. Terms of the labor agreement that
    he was working under.
        Mr. Miller. What is your position on whistleblowers?
        Mr. Bumbico. I believe whistleblowers should have a
    protective status under the--under the law. And I believe that
    they have adequate protection as it is.
        Mr. Miller. So you don't have a problem with that in the
    legislation?
        Mr. Bumbico. I had a problem with the way it was
    characterized in the legislation for the supplemental Miner
    Act.
        Mr. Miller. But you believe, as a matter of law, they
    should be protected?
        Mr. Bumbico. I do.
        Mr. Miller. Okay. You have an internal, what did you call
    it, BBC. Is that----
        Mr. Bumbico. Behavior-based safety.
        Mr. Miller. BBS. And that is an internal corporate policy?
        Mr. Bumbico. That is correct.
        Mr. Miller. And in your testimony, your measurements of
    that for us are that the--what you call the total incident rate
    from 1998 to 2010 and the lost time rate has been on the
    overall decline, overall, that you had some ups and downs, but
    basically on the decline. Is that correct?
        Mr. Bumbico. That is correct.
        Mr. Miller. So how does that sit with an average of about
    1,500 citations a year? Where do these two things--what is one
    telling us and the other is telling us?
        Mr. Bumbico. I am not sure what you are asking.
        Mr. Miller. Well, and you have the safety program that is,
    in theory, on the decline, by your measurements. And yet, you
    have been cited violations from 2005 to 2010 and running maybe
    the same rate this year of about 1,500 citations a year.
        Mr. Bumbico. Well, I think as you look at the increased
    inspector presence that we have had at our operation since
    2006, the number of inspector shifts have gone up about 20
    percent at our mines, as they have at most other mines. And to
    put that number in context, our violations per inspection day
    still only average less than .5, which, by industry standards,
    is very strong.
        Mr. Miller. But at the end of the year, you end up with
    about 1,500----
        Mr. Bumbico. I would also mention--I would also mention
    the----
        Mr. Miller. At the end of the year--let me just finish my
    sentence--you end up with about 1,500 violations.
        Mr. Bumbico. And over 4,100 inspector shifts.
        Mr. Miller. So what are those 1,500 violations telling you
    as a company?
        Mr. Bumbico. I think you have to look at each----
        Mr. Miller. That they are all wrong, or the workers' fault?
    What are they telling you?
        Mr. Bumbico. Well, in many cases, they are not correlated
    with safety issues. And I can give you a couple of examples, if
    you would like.
        Mr. Miller. Well----
        Mr. Bumbico. We had a number of violations that were----
        Mr. Miller. In many instances, they are correlated with
    safety. They are about ventilation. They are about rock dust.
    They are about the conditions in the mine. And we can argue it
    either way.
        I am just trying to determine when you look at--you have
    your indicators and you say this is a safe operation. It ought
    to be--essentially, everybody ought to adopt this in the
    industry. And yet, you still have--and those are either
    because, what, the inspectors aren't skilled enough or it is
    the workers' fault? I mean, I am just trying to determine how
    we measure the workplace.
        Mr. Bumbico. We also look at violations as indicators of
    safety performance. But we take it a step further. We look at
    whether there was an underlying safety issue related to the
    violation.
        In one instance, we had a new inspector that came into our
    Mount Laurel mine. And he had an issue with the location of an
    AMS sensor, atmospheric monitoring system sensor. He had them
    move it a couple of feet in by. And this was a system that had
    been used by MSHA as a model of how to design the system in the
    past. And not only did he issue a violation for that one belt
    head, but he also issued it for every belt in the mine.
        Mr. Miller. Now, I love the fact--I mean, I appreciate you
    love----
        Mr. Bumbico. So in many cases----
        Mr. Miller [continuing]. The question is----
        Mr. Bumbico. The manner in which they are enforcing the
    regulation----
        Mr. Miller. What does the body of 1,500 citations tell you?
    You can pick one out. I will pick one out. Let us just look at
    them and ask the question what does that tell you. Is that
    consistent with your safety program? Is it inconsistent? Does
    that tell you about modifications that have to take place? Or
    is it good enough?
        Mr. Bumbico. It is an indicator that we need to look to see
    if there is an underlying problem. That is how we deal with it.
        Mr. Miller. Thank you.
        Chairman Walberg. The gentleman's time is expired.
        Ms. Woolsey. Mr. Chairman? Mr. Chairman?
        Chairman Walberg. Yes?
        Ms. Woolsey. I would like to enter into the record, with
    unanimous consent, the Charles Scott Howard decision, the
    discrimination proceedings regarding the whistleblower issue we
    were just talking about. And, quote, in it, ``Besides Howard,
    at least one other pre-shift examiner had brought the leaking
    seals to the attention of management.''
        [The information follows:]

     Prepared Statement of Tony Oppegard, Attorney for Charles Scott Howard

        Attached are 27 entries from the preshift examination book at the
    Band Mill No. 2 mine operated by Cumberland River Coal Company (Eolia,
    Letcher County, Kentucky), which are signed by Charles Scott Howard and
    which document hazardous conditions that Mr. Howard found at the mine
    seals (``leaking water'', ``cracked'', etc.) during his daily preshift
    examinations.
        These preshift exam reports cover the period of April 19--May 24,
    2007. You will note that each exam report completed by Mr. Howard was
    countersigned by a mine foreman for CRCC, which indicates that the
    foreman had reviewed Mr. Howard's findings.
        Mr. Howard testified at his 105(c) safety discrimination trial on
    December 17, 2008, that in addition to documenting the unsafe condition
    of the mine seals on numerous occasions in the preshift exam book, he
    had also informed several CRCC foremen of these unsafe conditions.
    Those foremen were John Scarbro, Terry Mullins, Bob Kilbourne, Ronnie
    Adams, Steve Sturgill, James Turner and Eddie Niece (Transcript @ 420).
        The attached preshift exam reports, as well as the cited testimony
    of Mr. Howard--which was not rebutted at trial--clearly contradict the
    testimony of Anthony Bumbico of Arch Coal at the May 4, 2011 hearing
    ``Modernizing Mine Safety'' before the House Subcommittee on Workforce
    Protections. At that hearing, Mr. Bumbico falsely testified that Mr.
    Howard had shown the video of the leaking seals at the MSHA public
    hearing on July 12, 2007, without first informing Cumberland River Coal
    Company of the problems with the seals. Of course, that allegation is
    utterly untrue.
        It should also be noted that John Scarbro, the superintendent of
    the Band Mill No. 2 mine, admitted at the 105(c) trial that Mr. Howard
    had told him that the mine seals needed to be repaired (Transcript @
    51). That occurred months prior to Mr. Howard showing the video at the
    MSHA public hearing.
        Finally, given Mr. Scarbro's admission that the mine seals were
    leaking for a period of 3\1/2\ months before they were fully repaired
    at the end of May, 2007 (Transcript @ 54), it is clear that upper level
    mine management for CRCC was well aware of the hazardous condition of
    the seals for a substantial period of time long before Mr. Howard
    showed the video on July 12, 2007. Mr. Bumbico's implication that CRCC
    was somehow blindsided by Mr. Howard's presentation at the public
    hearing has no basis in reality.
        We would appreciate if you would enter this correspondence in the
    official hearing record so that Mr. Bumbico's inaccurate testimony does
    not go unchallenged. Please also note Mr. Howard's support for the mine
    safety bill that you have introduced. The bill's protections accorded
    to miners who speak out for safety on the job are vitally needed.
        Thank you for your consideration and for your vigorous work on
    behalf of miners' safety & health.
                                     ______

                                    ------

        Chairman Walberg. Without objection.
        Do we have a copy?
        Ms. Woolsey. Yes, there you go.
        Chairman Walberg. Okay, thank you.
        We will now move to the gentleman from Indiana, Mr. Rokita.
        Mr. Rokita. Thank you, Mr. Chairman. I appreciate you
    having this hearing and the Committee's continued interest in
    this subject matter.
        I also want to thank the witnesses.
        My first question goes to Mr. Ellis. Regarding modernizing
    mine safety, your testimony concluded by stating that, ``The
    measure of success is not the number or severity of the
    enforcement actions taken against mine operators, but the
    safety and health of the mining workforce.'' True?
        Mr. Ellis. Correct.
        Mr. Rokita. Given your background and experience with MSHA
    and the review commission, can you explain how, briefly, how
    the inspectors are evaluated, number one? And I would like to
    know if there is a quota for violations. I have several
    constituents in the district that tell me stories. But you
    could probably put some light on it. And then, is it ever
    acceptable or even conceivable for an inspector to have no
    citations from an inspection?
        Mr. Ellis. Let us go last question first.
        Mr. Rokita. Yes, it is conceivable that an inspector can go
    through an inspection and issue no citations. I mean, as has
    been discussed earlier, enforcement sometimes is a reflection
    of what the safety performance is at the company. But more than
    anything else, it focuses in on unsafe conditions.
        And that inspector may find that there are no unsafe
    conditions at that mine. And therefore, you would end up with a
    clean inspection.
        Mr. Rokita. Quick follow up--does that happen in practice?
        Mr. Ellis. No, as a matter of fact. It is in most
    situations that second set of eyes from MSHA finds something.
    And in some cases, they find more than one thing. Could I ask
    you to repeat the second part of your question or the first
    part?
        Mr. Rokita. Sure. How inspectors are genuinely evaluated.
    You know, what makes a good inspector at MSHA?
        Mr. Ellis. Well, I mean, inspectors ideally have 5 years of
    experience in industry before they come into the inspectorate
    force. And then they go through training at the Mine Health and
    Safety Academy in Beckley, West Virginia for a couple of years.
        And then they move out into the field and work out in the
    field as inspectors. And, you know, it is a process where they
    move around to different operations so they get exposed to
    different types of conditions and different types of mines.
        Mr. Rokita. In your experience now, do you have any idea
    what percentage of MSHA inspectors actually have 5 years of
    experience in the industry?
        Mr. Ellis. I don't know, but I know that when I was at the
    agency--and it is still on the cusp of it--is that MSHA has a
    very senior workforce. A lot of the inspectors are of
    retirement age and they are retiring. And the agency is
    actively trying to recruit to backfill those positions.
        And so, there is a culture shift that is going on with
    people that have had substantial experience in the industry and
    substantial experience as inspectors that are leaving. And we
    are having new people come in. And there is a learning curve
    there.
        Mr. Rokita. Thank you very much.
        Let me switch over to Mr. Griesemer for--did I pronounce
    that right? I apologize. Thank you--kind of a follow up to that
    same line of questioning, quote, unquote--``the second set of
    eyes.''
        I am getting reports that one inspector will go in to a
    place of business and pass over something, just to make the
    example simple. Something hangs on the wall or something hangs
    on a piece of equipment. And no report that anything was a
    problem. A second inspector comes by, weeks or months later,
    ``Oh, well, that has to be moved. That is not right,'' or
    whatever the situation is.
        The company then spends a good deal of money making that
    correction. Now, for the third inspection, it is the first
    inspector coming by again. ``Why did you move that? Put that
    back.'' So the non-uniformity in the inspection procedure, in
    the policies seems to be an issue.
        One area you believe MSHA could improve is its training
    inspectors in the specific requirements of your industry. I
    think that was your testimony. Can you explain how aggregates
    maybe are different from other segments of the industry?
        And is this a problem in the inspection process? Do we have
    inspectors going to different segments of the industry? And
    could that be contributing to what I just explained? And I am
    sorry, I have given you little time to respond.
        Mr. Griesemer. I would say, yes, it is all of that. I think
    the increased frequency of inspections actually contributes to
    that somewhat in that we are now seeing 100 percent of our twos
    and fours in the aggregates sector.
        And in this down economy, I have to say a lot of us small
    producers aren't even running 12 months a year. So it is
    particularly a burden for an inspector to come back.
        Nothing changes in 6 months in our operations compared to,
    like, an active--another mine, a larger mine. We may only have
    six or seven employees at a surface operation. And the number
    of inspections that they come in and they do to rotate
    inspectors. So there is this a new set of eyes and ears every
    time.
        Mr. Rokita. And that is good or bad?
        And I yield back.
        Chairman Walberg. Thank you.
        Mr. Griesemer. We think the resources could be better used
    elsewhere.
        Mr. Rokita. Thank you.
        Chairman Walberg. Turn now to the gentleman from New
    Jersey, Mr. Payne.
        Mr. Payne. Thank you very much. And I am glad that we are
    having this hearing.
        As you know, several years ago, I did go down to a mine.
    And I really have to commend workers in the mines for the
    challenge that they have. And I think they are very honorable
    and hard-working people.
        It kind of amazes me, though, that I find that sometimes
    the mine owners have sort of a kind of a lackadaisical attitude
    about the protection of these hard-working Americans who really
    put their lives on the line.
        I just have a question. And, as a matter of fact, believe
    it or not, around the world--and I have traveled to South
    Africa where the mine workers really were very active, even in
    the anti-Apartheid work, even in Zambia. The miners protested,
    where the Chinese are really running the mines and have armed
    guards. And they protested. And the mine owners even listened
    to them.
        And, of course, what we saw in Chile. So it seems I still
    get an uncomfortable feeling about the attitude, it seems,
    cavalier attitude of mine owners for these people who really
    jeopardize their lives so much.
        Let me just ask you, Mr. Roberts, about 2 weeks ago, the
    Robert C. Byrd Mine Safety Protection Act was refiled. It will
    strengthen criminal penalties, improve protection for miners'
    rights and modernize use of technology to prevent explosions in
    coal mines. How should Congress go about modernizing mine
    safety, in your opinion? And does this bill take the proper
    approach?
        Mr. Roberts. Thank you for the question. And I don't mean
    to be critical of anything that has been raised here today. But
    when we look at the situation that exists as we gather here
    today--and we know that 70,000 coal miners have died from
    pneumoconiosis in the last 40 years. And 10,000 of those died
    in the last decade.
        We know that we have seen an explosion, the worst disaster
    that we have seen in 40 years just a year ago when 29 miners
    lost their lives. We know in 2006 that we had a terrible
    explosion at Sago. A couple weeks later, miners were caught in
    a fire and died at Aracoma.
        And then we saw nine miners die, six instantly, at Crandall
    Canyon, and three trying valiantly to rescue them in 2007. And
    whether or not the most important thing that we should be
    talking about is did somebody write a citation that was
    consistent or inconsistent seems to not be speaking to the fact
    that--we know there is a coal mine right now, right now that I
    just raised that might explode and would have exploded had MSHA
    not been there. That seems to be a much greater problem, from
    my perspective, than perhaps someone feeling they got treated
    poorly.
        And I apologize if that sounds harsh. I don't mean for it
    to come across that way. But all you have to do is meet some of
    these families and talk to them and some these miners, too.
    What is the most important thing we could do? Well, we could
    modernize what we are doing, as a government.
        Let me give you a perfect example of that. The way we test
    the explosibility of coal dust, for example. You may have read
    this. MSHA took a sample from the Upper Big Branch mine. And
    the way they test those now, they send them to a lab in Mount
    Hope, West Virginia.
        They took a sample at Upper Big Branch before the
    explosion. Ten days after the explosion, sample came back, and
    it was way out of line. In fact, it was 80 percent explosible,
    I guess is the word, that they used. So that told everyone,
    once the sample came back, well, something should be done here.
        Quite frankly, those of you that know anything about coal
    mining and have been in a coal mine know you can just about
    look and see that. If you have got coal dust all over the mine,
    that is like gun powder. That is like gun powder. And it is
    more explosive than methane. Methane ignites. Methane explodes.
    Then it ignites the coal dust.
        You cannot have an explosion like you had at Upper Big
    Branch without being totally and completely out of compliance.
    And all the evidence suggests that. So we have had the samples
    come back. So we need to modernize this.
        Inspectors need to be armed with the ability to know what
    is in the atmosphere immediately and the explosive range of the
    coal dust that is there, whether there is enough rock dust on
    it. And MSHA has taken actions to try to increase those
    standards. But we need to act and act quickly and modernize the
    tools that MSHA has to determine these factors and to be able
    to deal with those when they find them.
        We should be about the business, I think, of making sure
    that we are not here next week or next year talking about this
    mine exploded in West Virginia or Kentucky and what do we need
    to do about it. And let us be honest about it. There has never
    been a law passed here, except one time, and that was 1977, and
    that was revisions to the 1969 Act.
        We would never passed the 1969 Act if we hadn't had those
    coal miners die at Farmington. We would have never acted in
    2006 if we hadn't had those miners die at Sago and Aracoma and
    then Darby. What has prompted every action by this Congress--
    not this particular Congress, but Congress itself--has been a
    terrible tragedy. And I think we can do better than that.
        Chairman Walberg. Thank you, Mr. Roberts.
        The time is expired. And I am glad I concurred with you in
    some of my opening statements on that. And I think we all
    agree. It is how we get to that point is the question.
        I turn now to the gentleman from Pennsylvania, Mr. Kelly?
        Mr. Kelly. Thank you, Mr. Chairman.
        And all the witnesses, we do appreciate you being here.
        I come from the private sector. I am an automobile dealer.
    And I think we all would agree that our main concern is making
    sure that whatever line of work you are in, you are doing, it
    is safe. And I think the danger when we have some of these
    hearings is that we get a polarization between those that
    operate a business versus those that work in these businesses.
        And coming from a situation where it is very important for
    my workers to be safe because that ensures my ability to stay
    in business--and when I look at this, I have been through
    several mines myself. And I have friends that have been from
    Western Pennsylvania. There is an inherent risk for going
    underground and working in these situations. I agree with that.
    I don't think there is any question about that.
        Then the question becomes then, okay, can you legislate
    safety? Can you legislate common sense? Can you legislate
    practical purposes that make sense for everybody?
        And I think the difficulty that we have, on this side of
    it, is how do you come up with a situation--there is a term in
    the military. It is called SLOJ, just s, l, o, j. It is a
    sudden loss of judgment where people walk into the tail rotor
    of a helicopter.
        Now, you could come up with the law says, don't walk within
    an area where the helicopter is parked. There are certain
    things, like chocking the tires on that truck, that are very
    important. In my business, you are supposed to wear a hard hat
    and safety glasses when they are working on the underside of a
    car. Nobody does it. That is the rule, but nobody does it.
        And let me ask you. Because I have watched this. And I have
    been through OSHA inspections myself. And some of it gets to
    the point of it is like a traffic violation. Well, it would be
    called a traffic violation, maybe one for speeding, where you
    were going 25 in a 15-mile zone or you were going 85 in a 50-
    mile zone. There is a big difference.
        Tell me about some of the citations, Mr. Griesemer. Because
    I have friends who were cited. And my problem with all this is
    there is no remedial purpose to this. When they do an
    inspection, to sit down where you say, you know, we found some
    problems. We think you need to address them. I mean, leaving
    the lid off a garbage container, to me, doesn't have the same
    consequences as maybe the coal dust would be.
        The distance of a fluorescent light from the top of a desk
    maybe doesn't have the same consequences of not having a safety
    room for people to go to. So if you could just walk us through
    what one of the inspections are. And do you even have the
    opportunity to fix what they found was wrong? And it is the
    inconsistency of the inspections, I think, that makes it very
    difficult come up with a policy that makes sense for all of us.
        Mr. Griesemer. Thank you, Congressman. I agree exactly with
    what you are saying. I have been doing this for over 30 years.
    There has been a big change in the way inspections have been
    performed in those--in that period of time. We used to have
    inspectors come out to the plant and they would actually give
    safety talks to our people, which we welcomed.
        And there was more compliance assistance in the early years
    than there is today. And the emphasis has changed in the last
    few years to enforcement. I see it. They write it up. And there
    is a penalty assessed.
        It is a prescriptive--somebody had mentioned that before--a
    prescriptive solution. I think we have to go--we have to engage
    everybody. We have got the CEOs, the middle managers engaged.
    We also have to engage the workers because we have to have
    their hearts and minds about safety as well.
        And I think we are not emphasizing enough there because we
    are needing--the small operators are going to have to have some
    assistance. MSHA is talking about closing the small mines
    office. And it is the compliance assistance that is going away.
    And it is the enforcement that is being emphasized over and
    over again.
        I just agree with you. I think it is the wrong way to go.
    The instance of my truck driver not chocking the wheels, I
    think you could use that as an example of we had provided the
    chocks. We had provided the training. The company had done
    everything except anticipate and tell him specifically, you get
    off that truck for 1 minute, you have to chock the wheels.
        We want them to think about that themselves. You have to
    have the worker engaged in safety before those things will
    happen.
        Mr. Kelly. Okay.
        Mr. Roberts, do you have an opportunity to sit down, then,
    with management and go over common concerns and then come up
    with common answers or solutions to it? Because I think,
    really, best practices are usually the result of, not only
    those that own the mines, but those that work in the mines.
    Does that opportunity exist? Because I think that would be
    invaluable to everyone.
        Mr. Roberts. It certainly does exist, particularly at
    unionized operations. There is a process in the contract itself
    that is called the labor/management positive change process
    where those kinds of issues are dealt with. Unionized mines
    have safety committees that work very closely with management.
        But the truth is that many of the mines in this country are
    non-union, and the workers are unrepresented. And it is
    management who dictates or decides what the health and safety
    operations will look like and what the policies will be. So,
    yes, at unionized mines there is an opportunity for this kind
    of dialogue. We do engage in it.
        In fact, we not only engage in it at the local level, at
    the mine level. We do it at the national level also.
        Mr. Kelly. Okay, thanks. Appreciate it.
        Mr. Chairman, thank you.
        Chairman Walberg. Gentleman's time is expired.
        Now we move to the gentleman from South Carolina, Mr.
    Gowdy.
        Mr. Gowdy. Thank you, Mr. Chairman. I want to thank you and
    Chairman Kline for having this important hearing.
        I also want to thank the witnesses for informing those of
    us who are not as familiar with these issues and for your
    professionalism and civility towards one another as you
    testify.
        Mr. Chairman, I was particularly interested in the
    gentleman from Indiana, Mr. Rokita's, line of questioning. And
    I would yield to him such time as I may have.
        Mr. Rokita. Thank you. And I thank the gentleman from South
    Carolina, a good friend and certainly a gentleman in every
    respect.
        Continuing on with my questioning of Mr. Ellis, please. In
    your capacity as president of the National Industrial Sand
    Association, are you following MSHA's regulatory agenda
    proposal to further regulate crystalline silica?
        Mr. Ellis. Yes.
        Mr. Rokita. Okay. Can you explain what companies are
    currently doing to prevent exposure to the silica? And do you
    believe a further reduction in the permissible exposure limit
    can be achieved?
        Mr. Ellis. Let me start out by saying crystalline silica is
    a technical name given to a substance that we are all familiar
    with, quartz or sand. And that is the substance we are talking
    about.
        But when it is in respirable size, it is potentially
    harmful to the human lung. And it causes disease. It causes
    silicosis.
        And everybody should appreciate that it is a preventable
    disease. So it is something that needs to be taken seriously.
    We can prevent that disease.
        The rulemaking that is being considered right now
    conceivably would look at whether we lower the level from what
    it currently is to whether or not we need to add additional
    provisions to the law to capture overexposures and eliminate
    them. So, yes, we are watching that rule very carefully.
        Mr. Rokita. Okay, thank you.
        And switching over to Mr. Bumbico, I appreciate your
    testimony. Using a little bit of my time, is there anything you
    want to add to Congressman Miller's line of questioning? Or do
    you feel like that was fully answered?
        Mr. Bumbico. I think what I would like to add is that it is
    very possible, very probable that the indicators we are looking
    at as to what is safe and what is not safe are the wrong
    indicators. You know, prior to the disasters that occurred in
    2006, the industry was very comfortable because the number of
    injuries had been trending down, the number of fatalities
    trending down. And I think that is what caused those disasters
    that proceeded to be such a shock because we were thinking that
    progress was being made.
        In my estimation, we are looking at the wrong thing.
    Looking at injuries, looking at regulatory compliance is
    looking backwards. And what we need to be doing is looking
    forwards. We need to be teaching people how to identify
    exposures, how to identify risks and how to deal with them.
        Mr. Rokita. Thank you.
        Mr. Miller. Will the gentleman yield?
        Mr. Rokita. Yes.
        Mr. Miller. Yes, thank you.
        On that point, I mean, that is--I was trying to get to this
    point, to some extent, maybe not exactly as you said. But I
    represent a lot of heavy industry, oil refiners, chemical
    industry, steel mills and others. And we have seen in this
    committee, and we saw the tragedies of British Petroleum at
    Texas City where all this concentration was on trips and falls
    as opposed to processes and how you are doing your job and what
    is it you should be thinking of when you have this specific job
    to do, whether it is shutting down a vessel, reworking a
    turnaround.
        And I think we are moving in that--in that direction. And,
    you know, I don't want to say that it is just a matter of trips
    and falls in the mines.
        But the real question is what is the--what is the Pattern
    of work and what is the patter of safety considerations for
    this project that we have in this vein, this type of mine, this
    operation, what have we done ahead of that. And what we are
    seeing is where industry is starting to adopt that, and many
    have, that it does seem to change the consciousness of
    everybody involved from the management to the worker in the
    sense that maybe we need additional resources or protections.
        Mr. Rokita. Thank you. Reclaiming my time.
        Mr. Miller. Thank you.
        Mr. Rokita. And assuming you asked a question, real quick,
    please.
        Mr. Bumbico. Can I respond to that?
        Mr. Rokita. Yes.
        Mr. Bumbico. I think the process I am talking about has to
    take place on two levels. You have to do a risk assessment at a
    major hazard level to look at what might cause an explosion and
    a fire and also take that down to the employee level so that
    lesser risks could be dealt with, too. And the two merge into
    one culture, if it is done effectively.
        Mr. Rokita. And then finally, Mr. Bumbico, the industry
    supported the Miner Act of 2006. That was before my time, but I
    understand that to be the case. But you did not support the S
    Miner Act and most recently, the Miner Safety and Health Act.
    Can you explain why industry has taken two different positions
    on mine safety, in less than a minute?
        Mr. Bumbico. I don't see this as taking two different
    positions. I think the positions have been consistent. I think
    in the case of the Miner Act, the parties were able to get
    together and determine what the underlying changes needed to
    be. That wasn't the case with the supplemental Miner Act.
        As I mentioned earlier, there were a number of things that
    were in the S Miner Act that could have been done anyway by
    MSHA that didn't require a new legislation to enact them. At
    the same time, there were some provisions in there, like the
    definition of what was a serious and substantial violation,
    that would have fundamentally changed enforcement and made it
    very, very difficult for the industry to comply.
        Mr. Rokita. I thank you.
        I thank the witnesses.
        Again, I yield, Chairman.
        Chairman Walberg. I thank the gentleman.
        And I also would like to, again, thank our witnesses for
    taking the time to testify before the subcommittee today. It
    has been enlightening for us. And I appreciate the perspective
    that has come across the spectrum and the questioning coming
    from the committee.
        And so, now I would take time to recognize the ranking
    member, the gentlelady from California, Ms. Woolsey.
        Ms. Woolsey. Thank you, Mr. Chairman.
        We were hoping for a second round of questions. So I will
    yield 1 minute to Congressman Payne and 1 minute to Congressman
    Miller, if they want to say----
        Mr. Payne. Well, just very quickly, maybe, Mr. Roberts, the
    characterization of the difference between the Miner Act and
    why the industry opposed it. What do you think about the S
    Miner? Was it such a radical--or was it the company wanted to
    write the act? Or what is the deal?
        Mr. Roberts. I don't see it that way at all. And, in fact,
    we supported that. We also support the Robert C. Byrd Act also.
        Mr. Payne. All right. Great.
        Ms. Woolsey. One minute? Okay, thank you.
        Thank you, Mr. Chairman.
        All this business about blaming the workers. For heaven's
    sakes, I was a human resources director for 10 years of a high-
    tech manufacturing company. It was so clear to me. Now, that is
    not coal mining. It is not, you know, rock mining. I know there
    is a difference.
        But the difference is that we knew, as employers, as the
    bosses, that it was our job to put together safety policies
    that our employees followed. If they didn't follow it, we had
    disciplinary programs in place. Because if you don't follow the
    safety rules and you are going to risk your life and anybody
    else's, that is a disciplinary problem.
        And we also had really--it doesn't sound like it when I am
    going on and on like this. But we had really good employee/
    employer relations. That makes a difference. We had a safety
    committee. We had 800 employees, so it is not like we had 12
    people.
        And, you know, you can do it. And you cannot blame the
    worker. You can't blame the worker when the worker--we had
    suggestion boxes. If the person that had those seals knew about
    the water seals or anything close to it couldn't get through
    their manager or through their bosses, they would have put it
    in the suggestion box. Somebody would have heard it and cared
    about it.
        So, you know, if you want to modernize, then these
    industries have to join the 21st century and work with their
    employees. And you want partnerships? It is the employer/
    employee partnership.
        So, Mr. Chairman, thank you. We have built a foundation
    through numerous hearings and several Congresses for overdue
    mine safety reform legislation.
        And last year under Chairman Miller's leadership, we
    brought reform legislation to the floor following consultation
    with the Upper Big Branch miners and their families and the
    mining industry, academics, state mine safety regulators, the
    inspector general and many, many others. It is not like we did
    this in a vacuum.
        Regrettably, opponents of the bill argued that it was
    premature to act before the investigations had been completed
    at Upper Big Branch. Well, this is a misleading argument
    because after conducting its investigation for over a year,
    MSHA persuasively argues that it knows enough about the
    accidents to justify making immediate changes to the Mine Act.
        So we can keep throwing challenges in the way, or we can
    prevent future accidents. That is up to us. I agree with Mr.
    Roberts. We can keep talking about this until another accident
    happens, or we can act on it.
        And I want to act on it with you, Mr. Chairman. Thank you
    very much.
        Chairman Walberg. I thank the gentlelady. And I would
    certainly concur that we want to act--that we want to act
    appropriately. We want to act with reason. And we want to act
    with common sense, though that may not be so common anymore in
    the world today.
        We want to certainly not blame workers unnecessarily. We
    would not--we don't want to blame the employers and the mine
    owners, the operators unnecessarily, either. We want to
    encourage--and I give credit to workers for good sense and for
    good experience that can expand our capabilities of moving
    forward in this area.
        And I think that is the reason for hearings like this and
    hearings that I would assure you with all good intentions of
    moving forward in the appropriate fashion, to make sure that,
    number one, we have a safe workplace for our--for our mine
    workers, but we also have a workplace for our mine workers that
    will go on with some security and that we will encourage that
    honorable profession to continue for as long as we need the
    product.
        I certainly remember my experience as a United Steel worker
    working at U.S. Steel South Works, Southside of Chicago. I
    certainly understand the impact of having union and management
    work together. I certainly understand the frustrations that
    were there at times.
        I certainly understand being a--being a steel worker
    working on a mobile platform or working on the platform related
    to the to the--to the steel heat itself and having the
    experience of coming back to a plant, fortunately, after having
    left it during a shift and not seeing the locker room there
    anymore because the heat had burned through the furnace and
    gone into the sewage system. That was not as a result of lack
    of regulation.
        That was not as a result of a desire to cut corners by the
    company. That was certainly not the result of union workers
    desiring that lack of safety to take place. And fortunately, no
    life was lost because it was between shifts. It was operator
    error, clearly, at that point. How we protect against that goes
    with good regulation, good training and, again, common sense
    and care taken by employee and employer.
        So our purpose is to move that direction. I appreciate the
    testimony we have heard today. I appreciate seeing technology
    that can be used to foster improvement in the health and safety
    of our workers. And we certainly, as a subcommittee and
    ultimately as a full committee, want to deal with that in
    appropriate fashion. I know that there is further opportunity
    for giving input.
        That has been left open at the beginning of this hearing
    here for further information to be shared. This subcommittee is
    open to that and want to have that as part of our record. So
    having said that, there being no further business, the
    committee stands adjourned.
        [Questions for the record and their responses follow:]

                                                 U.S. Congress,
                                          Washington, DC, May 13, 2011.
    Hon. Tim Walberg, Chairman,
    Subcommittee on Workforce Protections, Committee on Education and the
            Workforce, 2181 Rayburn House Office Building, Washington, DC.
        Dear Chairman Walberg: As part of the hearing record, we ask that
    you seek written clarification from a witness, Anthony Bumbico of Arch
    Coal, about statements that he made during the ``Modernizing Mine
    Safety'' hearing on Wednesday, May 4, 2011.
        Witnesses before the Committee have the duty to provide truthful
    testimony, and the Committee must take care to ensure the integrity of
    its proceedings and the accuracy of the record we collect. For these
    reasons, Mr. Bumbico's testimony, on behalf of both Arch Coal and the
    National Mining Association, is of concern.
        Specifically, Mr. Bumbico's testimony appears to be contradicted by
    a final decision and order of the Federal Mine Safety and Health Review
    Commission (FMSHRC) regarding unlawful retaliation against Charles
    Scott Howard, an employee of Arch Coal's subsidiary, Cumberland River
    Coal Company (CRCC), following his multiple disclosures to management,
    and subsequent release of a videotape that documented a number of seals
    leaking water at the company's Band Mill No. 2 mine in Letcher County,
    Kentucky, at an MSHA public hearing.
        Defective seals present a potentially lethal risk for miners
    because if they break, they could lead to flooding and inundation.
    Pursuant to Sec. 303(d)(1) of the Mine Act, the preshift examiner must
    ``examine seals * * * to determine whether they are functioning
    properly'' and must note any violations of law or hazardous conditions
    in the preshift examination report. It is a requirement that mine
    management must countersign each pre-shift examination report, which
    provides acknowledgement that management has read the preshift
    examination report.
        Below is the transcript of the relevant questions and answers from
    the May 4 hearing:

              ``Mr. Miller. What happened to the person that you fired for
            showing the video of the leaking water seals?
              Mr. Bumbico. I think----
              Mr.Miller. Was that retaliation against a whistleblower?
              Mr. Bumbico. I think you are mischaracterizing what occurred
            there.
              Mr. Miller. You characterize it for me.
              Mr. Bumbico. Sure. One, I am not going to talk into great
            detail because that issue is currently matter of civil
            litigation. But I will say this: The individual questioned took
            a video camera underground and did a tape of seals that were
            leaking. Instead of calling that to the attention of mine
            management or instead of calling MSHA and complaining about the
            problem, he took the videotape and brought it to a public
            hearing to show it. And then after the fact----
              Mr. Miller. So he never addressed it prior--he never
            addressed this prior with you, the company?
              Mr. Bumbico [continuing]. The issue was dealt with. No. The
            individual questioned----
              Mr. Miller. I don't think that is what the record shows.''

        Indeed, there is substantial evidence which contradicts the
    underlined portion of Mr. Bumbico's testimony.
        1. The August 13, 2010, FMSHRC decision in Charles Scott Howard v.
    Cumberland River Coal Company \1\ stated that Mr. Howard notified
    management on many occasions, as did others, about the leaking seals.
    The opinion states: ``During the performance of his duties in March and
    April 2007, Howard noted in the examination book that numerous seals at
    Band Mill were `leaking water.' Howard also expressed his concern over
    the condition of the seals to many mine foremen, including John
    Scarbro, Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner.''
    ---------------------------------------------------------------------------
        \1\ Docket # KENT 2008-736-D
    ---------------------------------------------------------------------------
        2. Also according to documents included in the hearing record, in
    his capacity as a preshift examiner, Mr. Howard documented in the
    preshift examination book on 11 separate occasions that the seals were
    leaking, as well as the fact that parts of the seals were cracked. John
    Scarbro, the mine superintendent, admitted under oath during the FMSHRC
    trial that Mr. Howard had informed management of the leaking seals
    within the mine. The trial transcript, which is a public document,
    states: \2\
    ---------------------------------------------------------------------------
        \2\ Trial Transcript, December 16, 2008, pp. 51

              Mr. Oppegard (attorney for Mr. Howard): ``Now, prior to Mr.
            Howard showing the video at a public hearing, he had been
            documenting in the pre-shift book that you had seals in the
            Band Mill Number Two Mine that were leaking water, had he
            not?''
              Mr. Scarbro (Mine Superintendent): ``Yes sir.''
              Mr. Oppegard (attorney for Mr. Howard): ``And in fact, Mr.
            Howard had told you that those seals needed to be repaired, did
            he not?''
              Mr. Scarbro: ``Yes sir.''

        As I previously stated, witnesses before our Committee have a duty
    to provide truthful testimony. Given the questionable testimony
    provided by Mr. Bumbico, its inconsistency with other official records,
    and its relevance to oversight as well as pending and future
    legislation, we ask that you submit these questions to Mr. Bumbico in
    order to clarify the record:
        1. Prior to videotaping the leaking mine seals, did Mr. Howard call
    the leaking seals to the attention of management? Yes or no?
        2. Did John Scarbro, the mine superintendent, receive notification
    of the leaking seals? Yes or no?
        3. FMSHRC's August 10, 2010, Decision and Order in Charles Scott
    Howard v.Cumberland River Coal Company stated that management personnel
    including Terry Mullins, Bob Kilbourne, Ronnie Adams and James Turner
    were also notified of leaking seals by Mr. Howard. Is this statement
    correct? Yes or No?
        4. Is your testimony factually correct that Mr. Howard, ``instead
    of calling that to the attention of mine management or instead of
    calling MSHA and complaining about the problem, he took the video tape
    and brought it to a public hearing to show it.'' Yes or no?
        5. Did Arch or its subsidiary CRCC, appeal the FMSHRC August 10,
    2010,
        Decision and Order in this discrimination proceeding? If not, is
    this judgment final?
        This Committee has the obligation to maintain the integrity of its
    proceedings. If there is any question about the reliability of
    testimony, whether due to potential conflicts or otherwise, the
    Committee should give serious consideration to the administration of
    oaths to witnesses prior to their testimony.
        Thank you in advance for ensuring the witness's answers to the
    above questions are included in the hearing record.
                Sincerely,
                       George Miller, Senior Democratic Member,
                              Committee on Education and the Workforce.
                        Lynn Woolsey, Senior Democratic Member,
                                 Subcommittee on Workforce Protections.
                                     ______

                                    ------

        [Whereupon, at 11:30 a.m., the subcommittee was adjourned.]