[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

                               __________

  Printed for the use of the Committee on Education and the Workforce


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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.''
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    \1\ Docket # KENT 2008-736-D
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    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\
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    \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.
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    [Whereupon, at 11:30 a.m., the subcommittee was adjourned.]

                                 
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