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



 
                           LEARNING FROM THE 
                        UPPER BIG BRANCH TRAGEDY 

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

                                HEARING

                               before the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, MARCH 27, 2012

                               __________

                           Serial No. 112-56

                               __________

  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               Robert E. Andrews, New Jersey
Todd Russell Platts, Pennsylvania    Robert C. ``Bobby'' Scott, 
Joe Wilson, South Carolina               Virginia
Virginia Foxx, North Carolina        Lynn C. Woolsey, California
Bob Goodlatte, Virginia              Ruben Hinojosa, Texas
Duncan Hunter, California            Carolyn McCarthy, New York
David P. Roe, Tennessee              John F. Tierney, Massachusetts
Glenn Thompson, Pennsylvania         Dennis J. Kucinich, Ohio
Tim Walberg, Michigan                Rush D. Holt, New Jersey
Scott DesJarlais, Tennessee          Susan A. Davis, California
Richard L. Hanna, New York           Raul M. Grijalva, Arizona
Todd Rokita, Indiana                 Timothy H. Bishop, New York
Larry Bucshon, Indiana               David Loebsack, Iowa
Trey Gowdy, South Carolina           Mazie K. Hirono, Hawaii
Lou Barletta, Pennsylvania           Jason Altmire, Pennsylvania
Kristi L. Noem, South Dakota         Marcia L. Fudge, Ohio
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on March 27, 2012...................................     1

Statement of Members:
    Kline, Hon. John, Chairman, Committee on Education and the 
      Workforce..................................................     1
        Prepared statement of....................................     3
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia, prepared statement of..........    77
    Woolsey, Hon. Lynn, a Representative in Congress from the 
      State of California........................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Kohler, Jeffery, Associate Director for Mining; Director of 
      the Office of Mine Safety and Health Research (OMSHR), 
      National Institute for Occupational Safety and Health 
      (NIOSH)....................................................    95
        Prepared statement of....................................    97
    Main, Hon. Joseph A., Assistant Secretary of Labor for Mine 
      Safety and Health..........................................     8
        Prepared statement of....................................    10
    Roberts, Cecil E., president, United Mine Workers of America.    89
        Prepared statement of....................................    91
    Shapiro, Howard L., Counsel to the Inspector General, Office 
      of Inspector General, U.S. Department of Labor.............    85
        Prepared statement of....................................    86

Additional Submissions:
    Andrews, Hon. Robert E., a Representative in Congress from 
      the State of New Jersey, chart: ``MSHA Coal Inspector 
      Staffing Levels''..........................................   112
    Assistant Secretary Main, response to questions submitted for 
      the record.................................................   124
    Mr. Miller:
        Table, ``All Citations and Orders Issued by MSHA for 
          Advance Notice''.......................................   113
        Table, ``MSHA Monthly Impact Inspection List''...........   114
        Letter, dated March 29, 2012, from Mindi Stewart.........   115
        MSHA news release, February 29, 2012, ``MSHA Announces 
          Results of January Impact Inspections''................   116
        U.S. Department of Labor News Release, March 28, 2012, 
          ``MSHA: Advance Notification of Federal Mine Inspectors 
          Still a Serious Problem''..............................   117
        Questions submitted for the record.......................   119
    Noem, Hon. Kristi L., a Representative in Congress from the 
      State of South Dakota, question submitted for the record...   124
    Mr. Rahall, prepared statement of Gary and Patty Quarles, 
      Naoma, WV..................................................   108
    Mr. Roberts, response to questions submitted for the record..   120
    Roe, Hon. David P., a Representative in Congress from the 
      State of Tennessee, hearing transcript excerpt, U.S. 
      Senate, dated May 20, 2010.................................    59
    Ms. Woolsey, federal court transcript, dated March 14, 2011..    30


                           LEARNING FROM THE
                        UPPER BIG BRANCH TRAGEDY

                              ----------                              


                        Tuesday, March 27, 2012

                     U.S. House of Representatives

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:01 a.m., in room 
2175, Rayburn House Office Building, Hon. John Kline [chairman 
of the committee] presiding.
    Present: Representatives Kline, Petri, Goodlatte, Roe, 
Walberg, DesJarlais, Rokita, Bucshon, Gowdy, Roby, Kelly, 
Miller, Kildee, Andrews, Woolsey, Tierney, Holt, Altmire, and 
Fudge.
    Also present: Representatives Capito and Rahall.
    Staff present: Katherine Bathgate, Press Assistant/New 
Media Coordinator; Casey Buboltz, Coalitions and Member 
Services Coordinator; Ed Gilroy, Director of Workforce Policy; 
Barrett Karr, Staff Director; Ryan Kearney, Legislative 
Assistant; Donald McIntosh, Professional Staff Member; Brian 
Newell, Deputy Communications Director; Krisann Pearce, General 
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce 
Policy; Linda Stevens, Chief Clerk/Assistant to the General 
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior 
Policy Advisor; Joseph Wheeler, Professional Staff Member; Kate 
Ahlgren, Minority Investigative Counsel; Aaron Albright, 
Minority Communications Director for Labor; Tylease Alli, 
Minority Clerk; Kelly Broughan, Minority Staff Assistant; 
Daniel Brown, Minority Policy Associate; Jody Calemine, 
Minority Staff Director; John D'Elia, Minority Staff Assistant; 
Waverly Gordon, Minority Fellow, Labor; Richard Miller, 
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority 
General Counsel; and Michele Varnhagen, Minority Chief Policy 
Advisor/Labor Policy Director.
    Chairman Kline. A quorum being present, the committee will 
come to order.
    Good morning, Assistant Secretary Main, thank you for being 
with us today.
    On April 5th, 2010, the people of Montcoal, West Virginia 
suffered a tragic loss. Around 3 o'clock in the afternoon, 
workers completing their shift at the Upper Big Branch Mine 
felt a strong blast of wind hit their backs.
    It was a chilly morning that a violent explosion was 
tearing through the mine, one that would kill 29 miners and 
severely injure two more.
    As a nation, we continue to mourn the men and women who 
died and keep their families in our prayers.
    Since that fateful day, the people of West Virginia have 
been searching for answers.
    How could such a catastrophic event take place? Could it 
have been prevented?
    What steps need to be taken to help ensure this kind of 
tragedy never happens again?
    As part of the federal response to the explosion, three 
teams were assembled to examine the events of Upper Big Branch: 
an MSHA investigation team to determine the cause of the 
explosion, an internal review team to examine MSHA's actions, 
and a team from the National Institute of Occupational Safety 
and Heath to conduct an independent assessment of MSHA's 
internal review.
    After examining more than 1,000 pieces of evidence, MSHA 
released its accident report last December. The report 
documents three events that facilitated the worst mining 
disaster in 40 years.
    First, worn drill bits and faulty water control in the 
mining machine created a spark or ignition. Then a buildup of 
methane gas combined with the ignition triggered an explosion. 
Finally, a massive accumulation of coal dust fueled a fire that 
quickly spread throughout the mine.
    While this explains the physical cause of the disaster, its 
real genesis lies in Massey's corporate culture that valued 
profit over safety. By engaging in the reckless disregard of 
important safety protections, Massey Energy bears the 
responsibility for the deaths of these miners.
    The investigation revealed numerous safety violations 
including keeping two sets of books and routinely providing 
advance notice to miners that inspectors were on site, all part 
of a campaign to conceal the true working conditions 
underground; disabling multi-gas detectors that could have 
alerted miners to the accumulation of methane gas; and failing 
to comply with rock dusting standards that would have contained 
the fire before it consumed the mine.
    The list of violation goes on and on. Safety was clearly 
not a priority for Massey. And 29 miners and their families 
paid the price.
    Federal prosecutors are to be commended for their efforts 
to bring justice to those who engaged in criminal activity. 
Mine operators have a legal and moral responsibility to protect 
their workers.
    Cecil Roberts, president of the United Mine Workers 
Association, whom we will hear from shortly, once noted that 95 
percent of mine operators are trying to do the right thing. Yet 
bad actors continue to jeopardize miners' safety.
    That is why we have the Mine Act and the Mine Safety and 
Health Administration. When workers are needlessly put in 
harm's way, federal enforcement must require correction action 
and hold the mine operator accountable.
    As we have learned in startling detail from internal review 
and independent assessment, regrettably this did not happen in 
Upper Big Branch. Instead, miners were forced to confront a 
failed combination of reckless safety practices and enforcement 
failures.
    On numerous occasions, inspectors identified safety 
violations, yet didn't require abatement of the hazard. Even 
more shocking are hazards that simply went unnoticed 
altogether.
    For example, in December 2009, MSHA approved a new plan to 
secure the roof of the mine. However, four subsequent 
inspections failed to cite Massey for violating the approved 
plan.
    This proved to be a critical enforcement error once a roof 
collapse altered the mine's airflow and allowed for the buildup 
of methane gas.
    Furthermore, it is difficult, almost impossible, to imagine 
enforcement personnel missing the inherent dangers of coal dust 
accumulating throughout the mine. Again, this enforcement error 
neglected a crucial safety concern that would later enhance the 
magnitude of this disaster.
    We have also learned over the last 2 years that other 
enforcement tools were either poorly used or never implemented. 
Bipartisan reforms enacted in 2006 created a new category of 
flagrant violations, yet they were never imposed against 
Massey.
    Computer glitches allowed Massey to avoid tougher 
enforcement measures. And technical support audits, including 
one that outlined concerns of methane in the mine, were never 
transmitted to the mine operator.
    Sadly, the list of enforcement lapses could go on as well. 
NIOSH states in its assessment that proper enforcement, quote--
``would have lessened the chances of, and possibly could have 
prevented, the UBB explosion.''
    There may be a number of reasons for these errors. However, 
no excuse can comfort those who lost a loved one.
    Some enforcement failures have plagued the agency for 
years, and deadly mistakes are always followed with a pledge to 
do better. Yet Upper Big Branch still happened. Tragedy 
strikes, promises are made, new laws are passed, and a broken 
enforcement regime goes on.
    Administrator Main, I hope you convince this committee, and 
the nation's miners, that this time it will be different, that 
this time, we will learn from past mistakes and keep our 
promise to do better.
    I look forward to discussing these matters further with our 
witnesses.
    I now recognize my distinguished colleague, Ms. Woolsey, 
for her opening remarks.
    [The statement of Chairman Kline follows:]

            Prepared Statement of Hon. John Kline, Chairman,
                Committee on Education and the Workforce

    Good morning, Assistant Secretary Main. Thank you for being with us 
today.
    On April 5, 2010, the people of Montcoal, West Virginia suffered a 
tragic loss. Around three o'clock in the afternoon, workers completing 
their shift at the Upper Big Branch mine felt a strong blast of wind 
hit their backs. It was a chilling warning that a violent explosion was 
tearing through the mine, one that would kill 29 miners and severely 
injure two more. As a nation, we continue to mourn the men who died and 
keep their families in our thoughts and prayers.
    Since that fateful day, the people of West Virginia have been 
searching for answers. How could such a catastrophic event take place? 
Could it have been prevented? What steps need to be taken to help 
ensure this kind of tragedy never happens again?
    As part of the federal response to the explosion, three teams were 
assembled to examine the events of Upper Big Branch: an MSHA 
investigation team to determine the cause of the explosion, an internal 
review team to examine MSHA's actions, and a team from the National 
Institute of Occupational Safety and Health to conduct an independent 
assessment of MSHA's internal review.
    After examining more than a thousand pieces of evidence, MSHA 
released its accident report last December. The report documents three 
events that facilitated the worst mining disaster in 40 years. First, 
worn drill bits and faulty water control on the mining machine created 
a spark or ignition. Then, a build-up of methane gas combined with the 
ignition triggered an explosion. Finally, a massive accumulation of 
coal dust fueled a fire that quickly spread throughout the mine.
    While this explains the physical cause of the disaster, its real 
genesis lies in Massey's corporate culture that valued profit over 
safety. By engaging in the reckless disregard of important safety 
protections, Massey Energy bears the responsibility for the deaths of 
these miners. The investigation revealed numerous safety violations, 
including:
     Keeping two sets of books and routinely providing advance 
notice to miners that inspectors were onsite, all part of a campaign to 
conceal the true working conditions underground;
     Disabling multi-gas detectors that could have alerted 
miners to the accumulation of methane gas; and
     Failing to comply with rock dusting standards that would 
have contained the fire before it consumed the mine.
    The list of violations goes on and on. Safety was clearly not a 
priority for Massey, and 29 miners and their families paid the price. 
Federal prosecutors are to be commended for their efforts to bring 
justice to those who engaged in criminal activity.
    Mine operators have a legal and moral responsibility to protect 
their workers. Cecil Roberts, president of the United Mine Workers 
Association--whom we will hear from shortly--once noted that 95 percent 
of mine operators are trying to do the right thing. Yet bad actors 
continue to jeopardize miners' safety.
    That is why we have the Mine Act and the Mine Safety and Health 
Administration. When workers are needlessly put in harm's way, federal 
enforcement must require corrective action and hold the mine operator 
accountable. As we've learned in startling detail from internal review 
and independent assessment, regrettably this did not happen at Upper 
Big Branch. Instead, miners were forced to confront a fatal combination 
of reckless safety practices and enforcement failures.
    On numerous occasions, inspectors identified safety violations yet 
didn't require abatement of the hazards. Even more shocking are hazards 
that simply went unnoticed altogether. For example, in December 2009, 
MSHA approved a new plan to secure the roof of the mine. However, four 
subsequent inspections failed to cite Massey for violating the approved 
plan. This proved to be a critical enforcement error once a roof 
collapse altered the mine's airflow and allowed for the buildup of 
methane gas.
    Furthermore, it is difficult--almost impossible--to imagine 
enforcement personnel missing the inherent dangers of coal dust 
accumulating throughout the mine. Again, this enforcement error 
neglected a crucial safety concern that would later enhance the 
magnitude of this disaster.
    We have also learned over the last two years that other 
enforcements tools were either poorly used or never implemented. 
Bipartisan reforms enacted in 2006 created a new category of flagrant 
violations, yet they were never imposed against Massey. Computer 
glitches allowed Massey to avoid tougher enforcement measures. And 
technical support audits, including one that outlined concerns with 
methane in the mine, were never transmitted to the mine operator.
    Sadly, the list of enforcement lapses could go on as well. NIOSH 
states in its assessment that proper enforcement ``would have lessened 
the chances of--and possibly could have prevented--the UBB explosion.''
    There may be a number of reasons for these errors; however, no 
excuse can comfort those who lost a loved one. Some enforcement 
failures have plagued the agency for years, and deadly mistakes are 
always followed with a pledge to do better. Yet Upper Big Branch still 
happened. Tragedy strikes, promises are made, new laws are passed, and 
a broken enforcement regime goes on.
    Secretary Main, I hope you convince this committee and the nation's 
miners that this time it will be different; that this time we will 
learn from past mistakes and keep our promise to do better.
    I will now yield to Mr. Miller, the committee's senior Democrat, 
for his opening remarks.
                                 ______
                                 
    Ms. Woolsey. Thank you, Mr. Chairman.
    Certainly, as we examine the lessons learned from the Upper 
Big Branch mine disaster, we can never lose sight that there 
are 29 families who lost their fathers, their brothers, their 
husbands, and their best friends.
    Almost 2 years ago, this committee travelled to Beckley, 
West Virginia where we heard chilling testimony from the 
families and miners about the unbelievable conditions in that 
mine.
    Most of which you listed just in your opening testimony, 
Mr. Chairman. So I won't repeat it.
    But Leo Long, a lifelong miner and grandfatherof one of the 
29 miners who lost his life, testified that day. Mr. Long said, 
``I am asking for you all to please do something for the rest 
of the coal miners that are in the mines. I pray for it every 
night, every day. If you don't do something, something like 
this is going to happen again.''
    Mr. Long, we hear your plea.
    Since that hearing, there have been four investigative 
reports on the tragedy. All found that Massey Energy caused the 
explosion by failing to comply with long established safety 
standards in mine workplaces.
    Massey failed to prevent this tragedy because it didn't 
maintain the water sprays to quench the ignition, or shore up 
the mine roof to keep the mine ventilated. And it failed to 
keep the mine rock-dusted to prevent a coal dust explosion.
    On top of Massey's failure to follow basic safety 
protections, it also engaged in a pattern of obstruction. 
Massey routinely provided advance notice of inspections which 
gave foremen time to correct hazardous conditions or stop 
production before MSHA inspectors arrived underground.
    Massey kept two sets of mine examination books. And Massey 
engaged in a pattern of intimidation by threatening miners' 
jobs if they tried to stop production to correct unsafe 
conditions.
    The Governor's Independent Panel concluded that these 
failures were the result of a culture where--and he said it--
``wrong doing became acceptable, where deviation became the 
norm.''
    Under the Mine Act, the mine operator is responsible for 
the health and safety of its miners. And if that operator 
fails, it is up to the safety agency to bend the operator back 
into line.
    But MSHA's effort was compromised at UBB. There were poor 
inspection practices and a failure to identify violations.
    There was a failure to put this mine on Pattern of 
Violations or apply maximum penalties. There was a failure to 
investigate Massey managers who may have engaged in knowing and 
willful violations. And mine plans were approved without 
resolving previous safety concerns.
    Today, Mr. Chairman, we must examine why this happened. We 
have to know what broke.
    We know that budget cuts and retirements incapacitated 
MSHA's effectiveness, particularly in the early 2000s. Then 
after three mine tragedies in 2006, Congress finally reversed 
course and provided resources to put more inspectors back into 
the mine.
    But the new inspectors didn't have the needed experience. 
And there were not enough technical specialists.
    Violations went undetected including critical violations 
highlighted in the latest NIOSH report.
    Only a few weeks before the UBB explosion in fact, MSHA 
inspectors were underground near the source of the explosion. 
But the lead inspector had only 13 months experience, and 
obviously missed a number of violations that may have prevented 
this accident in the first place.
    While MSHA definitely fell short, it was not for lack of 
trying. MSHA issued $1.3 million in penalties prior to the 
accident. The agency shut down parts of the mine 52 times in 
the previous year.
    But these citations didn't change Massey's conduct. In 
fact, rather than fixing problems, MSHA's penalties were met 
with litigation, not compliance.
    At UBB, Massey contested 92 percent of all penalties prior 
to the explosion. What is clear is that MSHA was no match for 
Massey or any other mining operation where corporate greed 
comes before the health and safety of the workers.
    Today, we recognize that the entire system failed the 
miners at Upper Big Branch. Past Congresses shouldn't have 
slashed funding for mine inspectors.MSHA needed to do a better 
job with the tools it had. And Massey exploited MSHA's 
weaknesses and those in the law and hurt their workers.
    The law should have been much stronger because that is what 
it takes when an operator has little or no regard for their 
workers.
    We are prepared to work with our colleagues to enact 
meaningful reform so that we can honor Leo Long's plea and the 
lives of our country's miners. Because, Mr. Chairman, the blood 
spilled by these miners must not be in vain and it must not be 
forgotten. And we must protect all miners from the errors that 
led to the UBB disaster.
    Mr. Chairman in closing, I want to welcome our witnesses 
that will be here today and Joe Main, as well as 
Representatives Rahall and Capito, who have a lot invested in 
our getting this right.
    I yield back.
    [The statement of Ms. Woolsey follows:]

 Prepared Statement of Hon. Lynn Woolsey, a Representative in Congress 
                      From the State of California

    Today, as we examine the lessons learned from the Upper Big Branch 
mine disaster, let us never lose sight that there are 29 families who 
lost their fathers, their brothers, their husbands and their best 
friends.
    Almost two years ago, this committee traveled to Beckley, West 
Virginia where we heard chilling testimony from the families and miners 
about the unbelievably terrible conditions in that mine.
    Leo Long, a lifelong miner and grandfather of one of the 29 miners, 
testified.
    He said: ``I'm asking for you all to please do something for the 
rest of the coal miners that's in the mines. I pray for it every night, 
every day. If you don't do something, something like this is going to 
happen again.''
    Mr. Long, we hear your plea.
    Since that hearing, there have been four investigative reports on 
this tragedy. All of them found that Massey Energy caused the explosion 
by failing to comply with long established safety standards.
    Massey failed to prevent this tragedy because:
     It didn't maintain the water sprays to quench the 
ignition;
     Or shore up the mine roof to keep the mine ventilated; and
     And it failed to keep the mine rock-dusted to prevent a 
coal dust explosion.
    On top of Massey's failure to follow basic safety protections, it 
also engaged in a pattern of obstruction.
     Massey routinely provided advance notice of inspections, 
which gave foremen time to correct hazardous conditions or stop 
production before MSHA inspectors arrived underground.
     Massey kept two sets of mine examination books;
     And, Massey engaged in a pattern of intimidation by 
threatening miner's jobs, if they tried to stop production to correct 
unsafe conditions.
    The Governor's Independent Panel concluded that these failures were 
the result of a culture where ``wrongdoing became acceptable, where 
deviation became the norm.''
    Under the Mine Act, the mine operator is responsible for the health 
and safety of its miners. And if that operator fails, it is up to the 
safety agency to bend the operator back into line.
    But MSHA's effort was compromised at UBB.
     There were poor inspection practices, and a failure to 
identify violations;
     There was a failure to put this mine on Pattern of 
Violations, or apply maximum penalties;
     There was a failure to investigate Massey managers who may 
have engaged in ``knowing and willful'' violations; and
     Mine plans were approved without resolving safety 
concerns.
    Today we must examine why this happened. What broke down?
    We know that budget cuts and retirements incapacitated MSHA's 
effectiveness, particularly in the early 2000's.
    Then, after three mine tragedies in 2006, Congress finally reversed 
course and provided resources to put more inspectors back in the mines.
    But the new inspectors didn't yet have the needed experience. And 
there were not enough technical specialists. Violations went 
undetected, including critical violations highlighted in the latest 
NIOSH report.
    Only a few weeks before the UBB explosion, MSHA inspectors were 
underground near the source of the explosion, but the lead inspector 
had only 13-months experience.
    While MSHA definitely fell short, it was not for lack of trying. 
MSHA issued $1.3 million in penalties prior to the accident. The agency 
shut down parts of the mine 52 times in the previous year.
    But these citations didn't change Massey's conduct.
    In fact, rather than fixing problems, MSHA's penalties were met 
with litigation, not compliance. At UBB, Massey contested 92 percent of 
all penalties prior to the explosion.
    What is clear is that MSHA was no match for Massey or any other 
mining operator where corporate greed comes before the health and 
safety of their workers
    Today we recognize that the entire system failed the miners at 
Upper Big Branch. Past Congresses shouldn't have slashed funding for 
mine inspectors. MSHA needed to do a better job with the tools it had. 
And Massey exploited MSHA's weaknesses and those in the law. The law 
should have been much stronger because that is what it takes when an 
operator has little or no regard for their workers.
    We are prepared to work with our colleagues to enact meaningful 
reform, so that we can honor Leo Long's plea and the lives of our 
country's miners, because Mr. Chairman, the blood spilled by these 
miners must not be in vain or forgotten, and we must protect all miners 
from the errors that led to UBB disaster.
    In closing, I want to welcome our witnesses, as well as 
Representatives Rahall and Capito.
                                 ______
                                 
    Chairman Kline. I thank the gentlelady.
    Pursuant to Committee Rule 7C, all committee 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 statements, questions for the record, and 
other extraneous material referenced during the hearing be 
submitted in the official record.
    Let me add my welcome today to our colleagues from West 
Virginia, Mrs. Capito and Mr. Rahall.
    Without objection Mrs. Capito and Mr. Rahall be permitted 
to participate in our hearing today. And I hear no objection.
    We have two distinguished panels of witnesses today. And I 
would like to begin by introducing the first panel.
    He is a panel of one, Assistant Secretary of Labor for the 
Mine Safety and Health Administration, Joe Main.
    Mr. Main has been a coal miner and mine safety advocate for 
over 40 years. He worked for the United Mine Workers of America 
in various positions from 1974 to 2002, including 22 years as 
the administrator of UMWA's Occupational Health and Safety 
Department. Prior to his nomination, he worked as a mine safety 
consultant.
    Welcome back, Mr. Main.
    Before I recognize you to provide your testimony, let me 
remind you of our quaint, but nevertheless important lighting 
system there. It is a green, yellow, red--pretty self-evident.
    We want to hear what you have to say. All of your testimony 
will be included in the record. You are free to summarize as 
you wish.
    When we get into questions, I will be asking my colleagues 
to stick to the 5-minute rule so that we can all have a chance 
to engage in the discussion and have time for the second panel.
    And with that, sir, you are recognized.

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

    Mr. Main. Thank you, Chairman Kline and Ranking Member of 
the committee, and members of their committee as well.
    I appreciate the opportunity to report on the April 5th, 
2010 disaster at the Upper Big Branch Mine that caused the 
death of 29 miners.
    MSHA's actions since then, the findings of the internal 
review into MSHA's activities before the explosion, and why 
despite our efforts to use all of our tools, legislation still 
needed to fully protect the nation's miners.
    The tragedy, which occurred a few months following my 
confirmation, was the deadliest coal mine disaster in 40 years, 
has caused unimaginable grief for the families and loved ones 
of miners, and it extends well, I think, beyond that.
    But they all should want assurance that an explosion like 
this never happens again. And that we are doing all that we can 
to keep miners safe.
    Our inquiries have been the most transparent MSHA has ever 
conducted. Throughout, we have held numerous meetings with the 
families as well as congressional and public briefings.
    On December the 6th, 2011, MSHA's action investigation team 
issued its final report. It found that the explosion was likely 
started with a methane ignition that when fueled by excessive 
amounts of coal dust transitioned into a massive coal dust 
explosion.
    The physical conditions that lead to the explosion were the 
result of a series of violations of basic safety which were 
disregarded at Upper Big Branch.
    But it was also the unlawful practices implemented by 
Massey that were at the root of the tragedy, such as advanced 
notice of MSHA inspections, intimidations of miners, and 
concealing hazards and injuries from regulators.
    While most of Massey's top management at UBB exercised 
their Fifth Amendment rights during the investigation, one 
official recently validated our investigation's findings.
    Gary May, a superintendent at the time of the explosion, 
recently testified that it was standard practice at UBB to warn 
employees underground of inspections and to fix or conceal 
hazards before inspectors could observe them.
    He also stated when he was a section boss, he would always 
spread extra rock dust and make everything look good when he 
was told an inspector was on the way.
    The Massey operation was issued 369 violations totaling 
$10.8 million in penalties. Alpha Natural Resources, which 
acquired Massey after the explosion, did not contest these 
violations and paid the penalties in full.
    MSHA also conducted internal review and released its report 
of March 6th which found that despite MSHA's District 4 
aggressive enforcement efforts, which were among the toughest 
in the nation, there were a number of deficiencies at UBB 
including MSHA's failure to identify the extent of 
noncompliance with rock dust standards along belt conveyors, 
and significant shortcomings in the operators ventilation of 
roof control plans.
    The internal review also identified deficiencies in 
District 4's adherence to MSHA's policies and procedures 
including deficiencies cited by the previous internal reviews.
    The internal review concluded that these deficiencies were 
primarily a result of budget constraints and the attrition of 
experienced staff which left District 4, and elsewhere, short-
staffed and with serious experienced deficits.
    This was particularly true with our roof control 
ventilation and other specialists.
    The internal review team also acknowledged a fact that we 
should not lose sight of. The challenges MSHA faced in 
enforcement at UBB were created by an operator that 
intentionally evaded the law and interfered with our efforts to 
enforce it.
    The internal review confirmed that the accident 
investigation team's findings that Massey, not MSHA 
enforcement, caused the explosion. We have reviewed the 
internal review's findings and have implemented a number of 
recommendations including reforms to be done before UBB. We 
know more needs to be done.
    We are also reviewing the conclusions and additional ideas 
of the NIOSH independent panel. Since UBB, MSHA has worked 
harder to use every tool at its disposal to ensure operators 
provide a safe and healthy workplace for miners. We believe our 
efforts are making a difference.
    Our most effective enforcement tools were the impact 
inspections which began immediately after the disaster.
    Since April 2010, we have conducted more than 400 impact 
inspections arriving at mines during off hours, often 
monitoring mine communications to prevent unscrupulous 
operators from giving advance notice.
    We have strengthened our Pattern of Violations process to 
make it as effective as we can under the current regulations. 
For the first time in history, MSHA has placed two mines on a 
Pattern of Violations, and has seen improvements in other mines 
subject to the POV process.
    Despite our efforts the current POV system is still flawed. 
Our proposed rule that we have announced would address flaws in 
the current rule that make it less effective than what Congress 
intended for it to be.
    MSHA has also beefed up enforcement of critical health and 
safety requirements, taking regulatory action to improve 
operator compliance; required mandatory 2-week, biannual 
training of all field office supervisors; split District 4 into 
two co-districts to better manage enforcement; reorganize the 
Office of Assessments to centralize oversight of accountable 
audits and the enhanced enforcement actions; and increased 
efforts to educate miners and protect them from discrimination.
    The majority of operators do try to obey the law. However 
as UBB and our impact inspections illustrate, there are still 
some operators who flaunt the law.
    The administrative and regulatory reforms we are 
implementing are not enough. As prior congressional hearings on 
UBB tragedy have made clear, we do need legislative reform 
without undercutting the critical provisions that have saved 
many thousands of miners from death, injury, and illness.
    The egregious problems MSHA continues to find, and the 
tactics it must use in trying to outfox--operators validate the 
administration's support for focused improvements to the Mine 
Act.
    Congress should address an equal certification processes 
and work to strengthen the criminal provisions of the Mine Act. 
We cannot tolerate employers who are knowingly risking the 
lives of workers by cutting corners on safety or providing 
advance notice of inspections.
    Congress should provide MSHA with sufficient authority to 
act quickly when the protection of miners and miners' health 
require immediate action. Legislation must ensure miners are 
fully protected from retaliation.
    As this very committee learned during the field hearing on 
the Upper Big Branch disaster in Beckley, West Virginia, miners 
were often afraid to speak out because they fear losing their 
jobs.
    I look forward to working with the committee to find the 
best way to accomplish our shared goal of providing our 
nation's miners the safety and health protections they deserve.
    And thank you, Mr. Chairman.
    [The statement of Mr. Main follows:]

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

    Chairman Kline, Ranking Member Miller, and Members of the 
Committee: I appreciate the opportunity to appear here today on behalf 
of the U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) to outline for you the results of MSHA's accident investigation 
into the April 5, 2010 explosion at the Upper Big Branch (UBB) mine in 
West Virginia that needlessly took the lives of 29 miners, as well as 
the conclusions of the internal review on MSHA's activities at UBB in 
the 18 months leading up to the explosion. I also want to report on the 
actions that we have taken since the explosion and our plans for 
further actions going forward.
    The accident at UBB was the deadliest coal mine disaster this 
nation has experienced in 40 years. The explosion occurred just months 
after my appointment as Assistant Secretary, and the tragedy shook the 
very foundation of mine safety. It caused us all to take a deeper look 
at the weaknesses in the safety net expected to protect the nation's 
miners. The impact the tragedy has had on the families of the miners 
lost and the mining community is beyond measure.
    There has been an intense examination of that tragedy, and MSHA and 
the mining industry have undergone significant change as we have sought 
to find and fix deficiencies in mine safety and health. While more 
needs to be done, we have implemented a number of strategic actions 
which I believe are improving mine safety.
    The safety and health of those who work in the mines in this 
country is of great concern to President Obama, Secretary of Labor 
Hilda Solis and me. The Secretary has articulated a forward-looking 
vision of assuring ``good jobs'' for every worker in the United States, 
which includes safe and healthy workplaces, particularly in high-risk 
industries, and a voice in the workplace. At MSHA, we are guided by 
that vision.
    I arrived at MSHA in October 2009 with a clear purpose--to 
implement and enforce mine safety laws and improve health and safety 
conditions in the nation's mines so miners in this country can go to 
work, do their jobs, and return home to their families safe and healthy 
at the end of every shift. To honor the memory of the 29 miners who 
died at Upper Big Branch, as well as their families, we have redoubled 
our efforts to protect today's miners.
    Having been involved in mining since the age of 18, I have a deep 
respect for those who choose mining as a career. I have spent most of 
my life with miners, mine operators and mine safety professionals. 
Mining is critically important to our economy, and it is our collective 
responsibility to ensure effective health and safety standards are in 
place and are followed to prevent injury, illnesses and death. Most of 
the industry shares this belief and accepts its responsibility under 
the Federal Mine Safety and Health Act (Mine Act) to comply with health 
and safety standards to protect its workforce. Nevertheless, injuries, 
illnesses, and fatalities have still taken an intolerable toll on 
miners, their families, their communities and the mining industry. 
Unfortunately, at UBB, Performance Coal and Massey Energy (PCC/Massey) 
cut corners on safety and engaged in other illegal practices that 
caused the explosion and impeded MSHA's ability to fully enforce the 
Mine Act. We cannot allow this to happen again.
Upper Big Branch Accident Investigation
    On December 6, 2011, MSHA's investigation team issued the results 
of its investigation at UBB. The investigation, which lasted some 20 
months, included a comprehensive underground examination and interviews 
of nearly 270 individuals. In the course of the investigation, the team 
reviewed approximately 88,000 pages of documentary evidence, conducted 
detailed mapping of the mine, tested thousands of pieces of physical 
evidence, and commissioned outside experts to assist in examining the 
disastrous explosion. This investigation was the most transparent in 
MSHA's history. From the time of the explosion through the December 6th 
release of the accident investigation report, MSHA held 11 meetings 
with family members, and consistent with Section 7 of the Mine 
Improvement and New Emergency Response Act of 2006 (MINER Act), MSHA 
family liaisons have been in continuous contact with the families. MSHA 
also conducted two public briefings--one on June 29, 2011 and another 
on the day of the release--regarding the status and findings of the 
investigation. Leading up to the report release, MSHA continuously 
posted information on the single-source page of its website as it 
became available. On the day of the release, MSHA posted the report and 
appendices, interview transcripts, maps and other documentation related 
to the explosion. We also have held regular briefings for this 
Committee's leadership and your staff on the status of the 
investigation and our findings.
    The accident investigation determined that the 29 miners who 
perished at UBB died in a massive coal dust explosion that most likely 
started with an initial methane ignition and was fueled by excessive 
amounts of coal dust transitioning into a massive coal dust explosion. 
The physical conditions at the mine that led to the coal dust explosion 
were the result of a series of basic safety violations, which PCC/
Massey disregarded. They did not apply adequate amounts of needed rock 
dust to areas of the mine involved in the explosion, allowing float 
coal dust, coal dust and loose coal to build up to dangerous levels. 
They did not comply with the mine's approved ventilation and roof 
control plans and failed to conduct adequate on-shift, pre-shift, and 
weekly examinations. They did not maintain the longwall shearer in 
proper operating condition and failed to maintain a sufficient volume 
of air in order to dilute or dissipate methane gas present in the mine.
    The unlawful policies and practices implemented by PCC/Massey were 
at the root of this tragedy. The management of PCC/Massey engaged in 
illegal practices and procedures, including giving advance notice of 
MSHA inspections, intimidation of miners, keeping two sets of books 
that hid hazards from MSHA and others, and hiding injuries. The most 
damning information to date on PCC/Massey's unlawful practices of 
giving advance notice came to light after the accident investigation 
and internal review reports were completed.
    On February 29, 2012, the UBB mine foreman and block superintendent 
at the time of the accident, Gary May, testified at the sentencing 
hearing of Hughie Elbert Stover, UBB's security chief, who had been 
convicted in Federal court for making false statements and obstruction 
of justice and subsequently sentenced to three years in prison. For his 
part, Mr. May recently entered into a plea agreement with the 
Department of Justice (DOJ), admitting to conspiracy to give advance 
notification of mine inspections, falsify examination record books and 
alter the mine's ventilation system before Federal inspectors were able 
to inspect underground. He explained that it was standard practice at 
UBB to warn employees underground of Federal and State inspections, and 
that this advance notice of inspections was used to ``fix'' hazards 
such as coal accumulations, ventilation problems, and to apply rock 
dust to ``make everything look good.'' Through these unlawful 
practices, Mr. May testified that PCC/Massey was able to avoid 
detection of violations by Federal and State inspectors. We still do 
not have a complete picture of the appalling practices at UBB that were 
designed to hide health and safety violations from inspection agencies, 
but hope to learn more as events unfold.
    Mr. May's testimony affirms findings of the accident investigation 
team that PCC/Massey promoted and enforced a workplace culture that 
valued production over safety, including practices that allowed it to 
conduct mining operations in violation of the law by deliberately 
hiding violations from MSHA and State regulators. MSHA's findings are 
consistent with the conclusions of other reports about the tragedy, 
including the reports from the State of West Virginia, the Governor's 
Independent Panel and the United Mine Workers of America.
    Massey was cited for 12 contributory violations, nine of which were 
flagrant, and 360 non-contributory violations for total penalties of 
$10.8 million. Alpha Natural Resources (Alpha), which acquired Massey 
Energy after the explosion, did not contest these violations and paid 
the penalties in full.
    At the direction of the President, the Department of Labor has 
fully cooperated with DOJ's investigation into possible criminal 
wrongdoing at UBB. On the day the accident investigation report was 
released, DOJ announced it had reached a Non-Prosecution Agreement with 
Alpha that requires the company to make payments and expenditures 
totaling $209 million. The Agreement obligates Alpha to implement a 
number of safety improvements, including the use of coal dust 
explosibility meters to allow immediate results of the combustibility 
of mine coal dust to prevent mine explosions, atmospheric monitoring 
systems to better detect conditions in the mine atmosphere to prevent 
mine explosions, and oxygen cascading systems to help miners escape 
during mine emergencies. This Agreement, however, does not relieve any 
individual from potential criminal prosecution.
Findings of the Internal Review
    MSHA conducts an internal review of its enforcement activities 
after each mining accident that results in three or more fatalities. By 
MSHA policy, the Director of Program Evaluation and Information 
Resources (PEIR) forms the team and is responsible for overseeing the 
review. For UBB, the team primarily focused on MSHA's actions in the 18 
months leading up to the explosion, particularly in District 4, which 
had jurisdiction over UBB. Secretary Solis asked the director of the 
National Institute for Occupational Safety and Health (NIOSH), Dr. John 
Howard, to identify a team to conduct an independent analysis of MSHA's 
internal review in order to assure the transparency and accountability 
of the review. On March 22, 2012, Dr. Howard transmitted NIOSH's report 
of its independent analysis to the Secretary. We are currently 
reviewing this report, including its conclusions and ideas for agency 
action.
    I asked that the internal review team carry out a thorough 
examination of MSHA's activities at UBB. They produced the most 
comprehensive and detailed internal review report that I have ever 
seen. The team's report is the culmination of nearly two years of a 
singularly focused effort, including interviews with nearly 90 current 
and former MSHA employees and the examination of more than 12,500 pages 
of documents. The report acknowledged the challenges the agency faced 
in enforcing the Mine Act against an operator whose ``intentional 
efforts to evade well-established Mine Act provisions * * * interfered 
with MSHA's ability to identify and require abatement of hazardous 
conditions at the mine,'' and found that MSHA actions or inactions did 
not cause the explosion. The report did, however, identify a number of 
deficiencies and make recommendations for improvement. The report 
examined in depth the root causes of these shortcomings, which will 
allow the agency to permanently fix deficiencies that have been 
identified in internal reviews following other mine tragedies.
    District 4 enforcement personnel were responsible for more coal 
mines than any other coal district in the country. Nearly 30 percent of 
the nation's underground coal mines and 14 percent of surface mines and 
facilities were located in District 4. Yet, at the time of the 
explosion, District 4 had less than 20 percent of the inspectors, 
trainees and specialists in the Coal Mine Safety and Health Division. 
During the 18-month review period that was the focus of the internal 
review, District 4 was responsible for inspecting 193 underground mines 
and 242 surface mines and facilities, and issued more than 35,000 
citations and orders, which accounted for 23 percent of all violations 
and 34 percent of all unwarrantable failure violations issued at all 
coal mines nationwide. For years, unwarrantable failure citations and 
orders have been considered the toughest tool available to inspectors. 
In Fiscal Year (FY) 2009, for example, District 4 issued more 
unwarrantable failure citations at UBB than any of the other 14,600 
mines in the nation.
    While the internal review found that District 4 had one of the 
toughest enforcement records of all MSHA districts, it also identified 
a number of instances where enforcement efforts at UBB were compromised 
because established agency policies and procedures for inspections, 
investigations and mine plan reviews were not followed. Inspectors did 
not consistently identify deficiencies in the mine operator's program 
for cleaning up accumulations of loose coal, coal dust and float coal 
dust. They did not use PCC/Massey's examination books records 
effectively when determining the operator's negligence in allowing 
identified hazards to continue unabated. They did not identify the 
extent of noncompliance with rock dust standards along belt conveyors 
and did not identify significant deficiencies in the operator's 
ventilation and roof control plans. The internal review did note, 
however, that the thoroughness of District 4 inspections improved over 
the 18 months preceding the accident.
    The internal review also found that MSHA did not effectively use 
other available elevated enforcement tools. For example, in eight 
instances, District 4 inspectors did not flag certain violations as 
potentially ``flagrant,'' even though these violations met the internal 
guidance criteria for considering a violation for a flagrant 
designation. In several other instances, it did not conduct special 
investigations to determine whether PCC/Massey management had knowingly 
violated mandatory health and safety standards. Moreover, the internal 
review found that supervisors did not adequately review MSHA inspector 
documentation related to UBB inspections to identify significant 
deficiencies, or recognize that some portions of the mine had not been 
inspected. The turnover of supervisors in District 4's Mt. Hope field 
office--including untrained acting supervisors--contributed to the 
inadequate review of inspection reports. The issue of turnover also 
extended to the district manager position; between June 2003 and July 
2004, four different MSHA personnel were temporarily assigned to this 
position.
    In addition, the internal review team extended its review to areas 
unrelated to the explosion, such as respirable dust, where it found 
District 4 personnel followed a flawed policy that allowed PCC/Massey 
to manipulate MSHA procedures to avoid complying with reduced standards 
for respirable coal mine dust, and allowed the operator to 
significantly delay corrective action after such unhealthy 
overexposures were identified. We are in the process of revising this 
policy to require that reduced standards be maintained and enforced 
until sampling data shows that it is no longer necessary.
    A number of factors led to these shortcomings. For example, as the 
internal review team noted, the number of coal enforcement personnel 
had eroded to 584 by the end of FY 2005, a result of attrition and 
budget constraints. By comparison, there were 653 such personnel in FY 
2001. Following the 2006 Sago, Darby and Aracoma disasters, MSHA 
received additional funds to hire more inspectors. However, despite 
efforts to re-establish staffing levels, by the time of the UBB 
explosion, the inspection and supervisory staff was significantly 
composed of new inspectors, replacing a number of experienced 
inspectors who retired. For example, from FY 2005 to FY 2008, MSHA lost 
252 coal enforcement personnel from its ranks. Some inspectors retired, 
were recruited by industry, moved to new positions within the agency, 
or left MSHA for other reasons. As noted in testimony before this 
Committee in February 2010, when I arrived at MSHA in October of 2009, 
approximately 55 percent of Coal Mine inspectors and 38 percent of 
Metal and Nonmetal inspectors had two or fewer years of experience as 
an inspector. The budget constraints and constant loss of experienced 
personnel due to attrition adversely affected the entire agency (See: 
Chart A).
    MSHA also experienced an alarming reduction in the number of 
specialists in the coal division to assist with plan reviews and 
conduct technically specialized portions of inspections. Between FY 
2001 and FY 2006, the number of MSHA subject matter specialists in coal 
mine ventilation, roof control, electrical systems, occupational 
health, and impoundments fell from 241 to 170, a 29 percent drop (See: 
Chart B). During this same period, the number of Mechanized Mining 
Units (MMUs) in the nation rose from 834 to 1,180, a 41 percent 
increase (See: Chart C), creating a greater need for specialists in 
underground mines. In addition, in order to complete all mandatory 
inspections required under the Mine Act, specialists were being asked 
to assist with more general inspection duties. Even with this extra 
assistance from our specialists, not all mandatory inspections were 
being completed.
    Mining is a highly technical field, and new hires go through 
extensive training for up to two years and receive on-the-job training 
from a journeyman inspector. As a result, even the most experienced of 
these new inspectors had only been conducting Federal mine inspections 
for a couple of years. In addition, when new inspectors were hired 
after 2006, there were not enough experienced inspectors to mentor them 
or oversee their on-the-job training. For example, in FY 2007, one-
third of MSHA enforcement personnel nationwide and in District 4 were 
still considered trainees. Moreover, agency experience among lead 
inspectors assigned to UBB during the 18 months preceding the explosion 
ranged from 13 to 52 months. The reduction of staffing and drain of 
experienced staff during the early to mid-part of the 2000s, combined 
with the lack of experience of their replacements, had a significant 
adverse impact on the agency from which we were only beginning to 
recover at the time of the April 2010 disaster.
    Massey's deceptive and illegal actions significantly interfered 
with District 4's ability to effectively enforce the law at UBB, as 
Gary May's recent testimony revealed. Nevertheless, MSHA assumes 
responsibility for its actions and inactions at UBB and takes the 
deficiencies and recommendations outlined in the internal review report 
extremely seriously. We have already implemented many actions to 
improve enforcement, and set a timetable for implementing the internal 
review team's recommendations. We are also reviewing the regulatory 
recommendations of both the accident investigation team and the 
internal review team to determine which regulatory changes to pursue.
MSHA Actions to Improve Safety
    The tragic events of April 5th changed the lives of many people in 
varying degrees--the miners' families, their communities, miners around 
the country, and those of us at the Department of Labor dedicated to 
mine safety. President Obama said shortly after the accident that ``we 
owe [those who perished in the UBB disaster] more than prayers. We owe 
them action. We owe them accountability.'' MSHA and the Department of 
Labor have worked diligently to make good on the President's promise. 
MSHA's actions--including initiatives started both before and in 
response to Upper Big Branch--have been strategic and focused, and they 
are making a difference.
    While we will be implementing the recommended improvements 
contained in Appendix A of the UBB internal review report, I want to 
share with you some of the significant changes we have already made and 
the further actions we intend to take to ensure miners' health and 
safety.
Enforcement
    In the months after the disaster, MSHA issued new enforcement 
policies and alert bulletins addressing hazards identified after the 
explosion, such as prohibition on advance notice of MSHA inspections, 
mine ventilation and rock dusting requirements, and the rights of 
miners to report hazards without being subject to retaliation. The 
intent of these efforts was to ensure that miners and mine operators 
understand important enforcement policies, as well as strengthen agency 
enforcement in key areas related to the disaster. For instance, in 
September 2010, MSHA issued an emergency temporary standard that 
strengthened rock dusting requirements in all accessible areas of 
underground bituminous coal mines to prevent explosions. MSHA issued a 
final rule in June 2011.
    MSHA also started changing the way it does business to ensure that 
appropriate efforts are focused on operations that pose the greatest 
risk to the safety and health of miners. One of our most effective 
enforcement tools to facilitate this change is our impact inspections. 
Immediately after the disaster at UBB, we began to conduct strategic 
``impact'' inspections at coal mines with a history of underground 
conditions that indicated potential problems relating to methane 
accumulations, ventilation practices, rock dust applications and 
inadequate mine examinations. In August 2010, I issued an agency 
directive expanding impact inspections to coal and metal/nonmetal mines 
that merit increased agency attention and enforcement due to their poor 
compliance history or particular compliance concerns. As I noted in 
testimony before this Committee previously, these impact inspections 
have shaken-up even the most recalcitrant operators. MSHA has shown up 
at mines during ``off hours'', such as evenings and weekends, and has 
monitored mines' phone lines upon arrival to prevent unscrupulous 
operators from giving advance notice of the inspectors' presence. Since 
April 2010, we have conducted more than 400 impact inspections at coal 
and metal/nonmetal mines.
    While we believe these strategic inspections are making a 
difference and improving safety and health conditions in the nation's 
mines, there are still some operators who continue to flout the law and 
MSHA continues to encounter operator tactics to prevent inspectors from 
finding hazards. For example, I previously reported to you on a mine in 
Claiborne County, Tennessee, where MSHA inspectors monitored company 
phones during the evening shift and found numerous ventilation, roof 
support, and accumulation of combustible materials violations. These 
conditions potentially expose miners to mine explosions, roof falls, 
and black lung disease. MSHA issued 27 citations and 11 orders as a 
result of that inspection. In November 2010, this same mine was given 
notice of a potential pattern of violations (PPOV) of mandatory health 
or safety standards under Section 104(e) of the Mine Act. In July 2011, 
MSHA inspectors conducted a sixth impact inspection at the mine, 
seizing and monitoring mine communications to prevent advance notice of 
their arrival. MSHA issued 32 citations and orders, including eight 
closure orders for the operator's unwarrantable failure to correct 
conditions that could have prevented miners from safely evacuating the 
mine in the event of a fire, explosion or other emergency. This 
troubled mine eventually ceased operations. In another example, just 
last month, our inspectors witnessed a mine employee calling 
underground to provide advance notice of the inspection during an 
impact investigation of an underground coal mine in West Virginia.
    We have made significant improvements to another of our enforcement 
tools, the pattern of violations (POV) process, making it as effective 
as we can under current regulations. The Mine Act provides for an 
administrative process under which a mine identified to have a pattern 
of ``significant and substantial'' (S&S) violations receives closure 
orders for each S&S violation until it receives a clean inspection. In 
October 2010, we overhauled the POV process to focus on mines with the 
worst records and require operators to make significant and lasting 
safety improvements. MSHA has conducted two screenings under the 
revised criteria, and issued a total of 28 potential patterns of 
violations (PPOV) notices at 26 mines. MSHA provides a PPOV notice to 
operators to give them an opportunity to improve compliance before 
being placed on a POV. Notably, four of these PPOV notices were issued 
on the basis of agency audits revealing that mine operators under-
reported injuries; otherwise, the mines would have avoided our 
screening process. Two of the mines have been placed on a POV. Last 
year was the first time in the Mine Act's 34-year old history that MSHA 
issued POV closure orders. The POV process is open and transparent. The 
criteria we use for PPOV screenings are posted on our website, and in 
April of last year, we announced a new online tool which permits any 
mine operator, miner or member of the public to see whether a mine is 
meeting the criteria for a PPOV. Any operator can use the tool to 
monitor its compliance and implement immediate corrective actions if 
its violation history could trigger a PPOV notification.
    Despite our efforts to improve the current POV process, it is still 
flawed. On February 2, 2011, MSHA proposed a rule revising the pattern 
of violations regulations to better reflect the intent of Congress. 
Under current regulations, a POV notice can only be based on final 
orders. However, given the backlog of cases pending before the Federal 
Mine Safety Health and Review Commission (FMSHRC), discussed in more 
detail below, significant delays lasting years frequently occur before 
serious violations become final and can be considered part of a POV. In 
the meantime, miner safety and health is still at risk. The proposed 
rule would eliminate the requirement that a POV notice be based on 
final orders. In addition, it would eliminate the PPOV process, 
requiring operators, not the government, to take responsibility for 
monitoring their compliance and taking corrective action. We are 
considering the public comments we have received on the provisions of 
this proposed rule and expect a final rule to be published this spring.
    While improvements are needed, we believe that MSHA's enforcement 
efforts thus far are bringing about improvements in compliance and in 
safety and health conditions. A recent review of mines subject to the 
impact inspection program showed that violations per inspection hour 
are down 11 percent, S&S violation rates are down 18 percent, closure 
(104(d)) orders are down 38 percent, and the total lost time injury 
rate is down 18 percent. An analysis of the 14 mines completing the POV 
process under our current criteria showed similar overall improvements. 
The violation rate at those mines is down 21 percent, the total S&S 
violation rate is down 38 percent, and the rate of closure (104(d)) 
orders is down 60 percent. The lost time injury rate has dropped 39 
percent.
    There are also reductions in violations across the mining industry. 
The number of citations and orders issued by MSHA has decreased from 
over 170,000 in 2010 to about 158,000 in 2011. For underground coal 
mines, 77,000 citations and orders were issued in 2011, down from about 
80,000 in 2010. We believe the reduction in violations reflects 
increased compliance.
Training, Administration and Management
    We have undertaken a number of actions beyond the enhancements to 
our enforcement programs, some of which were included in 
recommendations by the UBB internal review. One of the programs I 
focused on when I arrived at MSHA was a new training program for all 
field office supervisors to improve oversight of the inspection program 
and consistency in enforcement of the Mine Act. With the changeover in 
agency staffing, training of front-line supervisors to foster effective 
management and consistent enforcement was critical. I first announced 
this program to the Committee in February 2010. The training, which 
field office supervisors must now take on a bi-annual basis, was 
developed just prior to the UBB disaster and includes subjects 
identified in past internal reviews and agency audits. It will also be 
updated to address the findings of the UBB internal review team. All 
coal and metal/nonmetal field office supervisors have completed this 
training for the Calendar Year (CY) 2011-2012 cycle.
    In 2010, I also required the administrators for Coal and Metal/
Nonmetal to establish a plan to review all the policies and procedures 
inspectors must follow when conducting inspections. The purpose of this 
review was to identify inefficiencies and impediments in the inspection 
process; better explain policies to mine operators and employees; and 
update existing policies to incorporate some of the past findings and 
recommendations from agency audits internal reviews, and other 
government studies and investigations. The first review phase, for Coal 
Mine Safety and Health, was completed in January 2012 and produced a 
comprehensive draft document that incorporates all identified 
inspection policies, procedures, forms, and past findings and 
recommendations for inclusion into a single inspection handbook. An 
agency task force, established in January 2012, has begun the next 
phase of reviewing and finalizing the draft, which will culminate in a 
new, comprehensive inspection handbook that lays out clear, consistent, 
and easily accessible guidance to MSHA inspectors in a format that can 
be easily updated and made available electronically. This should result 
in improved quality and consistency of inspections. Metal/Nonmetal is 
working on a parallel path with its own handbook.
    In February 2012, I directed the reinstitution of a centralized 
administrative review process for all of the agency's directives. As 
the internal review found, the agency's directives system was not 
effectively communicating agency policy to the field. We will fix that, 
starting with centralized oversight of the development and 
dissemination of directives and better controls on how they are issued 
and distributed.
    In June of 2011, we announced a new MSHA district in southern West 
Virginia. To help manage the large number of coal mining operations in 
that region, we split District 4 into two districts, creating District 
12. The split will increase line and management staff in southern West 
Virginia, providing more enforcement resources and better oversight of 
enforcement personnel.
    Also in June 2011, MSHA transferred the management and operation of 
the National Air and Dust Laboratory in West Virginia from the coal 
program to our Office of Technical Support, in response to an Inspector 
General recommendation that MSHA upgrade the lab to improve its rock 
dust analysis turnaround time. We have improved the turnaround time, 
and are taking other actions to improve and modernize the lab, which 
processes approximately 50,000 inspector rock dust samples for total 
incombustible content, and 40,000 mine gas samples per year.
    In February 2012, I announced a reorganization of MSHA to 
centralize oversight of certain cross-cutting, compliance-related 
actions. The Office of Assessments, Accountability, Special Enforcement 
and Investigations (OAASEI) will now incorporate the management, 
support, and coordination of routine and special assessments, as well 
as agency headquarters accountability functions and special enforcement 
strategies. Under this reorganization, MSHA consolidated its current 
headquarters accountability functions, as carried out by the Office of 
Accountability, within the OAASEI. As background, the Office of 
Accountability originally was created in response to internal reviews 
of the Sago, Aracoma and Darby mine disasters that were critical of 
MSHA's pre-accident enforcement activities and questioned whether 
policies intended to prevent serious mine disasters were being properly 
and effectively implemented. However, by re-establishing headquarters 
accountability functions within the OAASEI, MSHA will enhance the 
management, administrative, and analytical support for this component 
while retaining OAASEI's independence from the mine inspection program 
areas.
    This reorganization also establishes a single office within OAASEI 
for the coordination of a number of special enforcement strategies, 
including: flagrant violations, investigations of retaliation claims 
and possible criminal violations, impact inspections, the pattern of 
violations program, and the use of injunctive authority. The formation 
of OAASEI will enable MSHA to better manage and coordinate its use of 
special enforcement tools against the most serious violators of the 
Mine Act.
    Finally, as I have mentioned, in the last decade MSHA suffered 
significant attrition among its experienced personnel. As a result, we 
are exploring how to address the succession issue at MSHA.
Proactive Accident Prevention
    The UBB disaster highlighted the need to ensure that mine operators 
take seriously their obligation to find and fix the hazards in their 
mines instead of waiting for MSHA to point out problems. As I have 
stated since my first hearing before this Committee in February 2010, 
MSHA cannot be on every shift at every mine, and any effective 
enforcement regimen must require to operators to take ownership of 
health and safety at their mines. On December 27, 2010, MSHA published 
a proposed rule that would revise existing requirements for pre-shift, 
on-shift, supplemental, and weekly examinations of underground coal 
mines. The proposed rule would require that operators identify and 
correct violations of mandatory health or safety standards and review 
quarterly with mine examiners all citations and orders issued in areas 
where examinations are required. This rule would reinstate requirements 
that were in place for some 20 years following the passage of the 1969 
Mine Act. We expect the final rule to be published soon.
    We have not focused just on preventing mining disasters, but also 
on the most common causes of mining deaths, such as accidents involving 
the use of machinery and equipment. As you know, we launched our multi-
phase Rules to Live By (RLB) initiative in January 2010, to focus 
attention on the most common mining deaths and the associated safety 
standards. In particular, this initiative identifies for operators the 
standards that will be a focus of enforcement so they can take 
appropriate preventative measures. The second phase, ``Rules to Live By 
II: Preventing Catastrophic Accidents'' followed in November 2010, and 
in January of this year we announced the next phase, Rules to Live By 
III: Preventing Common Mining Deaths. RLB III highlights those safety 
standards cited as a result of at least five mining accidents and 
resulting in at least five fatalities during the 10-year period from 
January 1, 2001, to December 31, 2010.
    We believe these efforts are saving lives. Preliminary data shows 
37 miners died in work-related accidents at the nation's mines in 
2011--the second lowest since statistics have been recorded. There were 
21 coal mining and 16 metal/nonmetal mining deaths last year compared 
with 48 and 23, respectively, in 2010--which included 29 at Upper Big 
Branch. In 2009, we saw the lowest fatality numbers with 34 total 
mining deaths, of which 18 were in coal. It is also important to note 
that the mining industry finished fiscal year 2011 with the lowest 
number of mining deaths ever recorded. However, as low as the fatality 
numbers have come in recent years, we all know that one death is one 
too many; that mining deaths are preventable; and there is more that 
must be done.
Backlog of Contested Cases
    The UBB disaster underscored the need to address the backlog of 
cases at the Federal Mine Safety and Health Review Commission (FMSHRC). 
At the time of the disaster PCC/Massey was contesting 92 percent of the 
penalty dollars proposed by MSHA, adding to the backlog. In addition, 
because its cases were not being resolved in a timely fashion, the 
penalties did not have the intended deterrent effect on Massey's 
conduct. In fact, Massey had $1.3 million in pending proposed penalties 
right before the explosion. We have taken a number of actions to attack 
this problem. First, the Department is putting to use the 
appropriations that Congress provided for the Department and FMSHRC to 
reduce the backlog. These extra resources have helped us to resolve 
cases and significantly reduce the number of contested violations, from 
almost 89,000 in January 2011, to fewer than 67,000\1\ in December 
2011, a 25 percent reduction in the span of just one year.
---------------------------------------------------------------------------
    \1\ These numbers are cite violations and are based on MSHA's data. 
The numbers differ from FMSHRC data, which cites cases not violations.
---------------------------------------------------------------------------
    In January of this year, MSHA began to implement pre-assessment 
conferencing procedures. The new procedures are based on the results of 
a pilot program launched in August 2010, which evaluated the impact of 
pre-assessment conferencing on operators' decisions whether to contest 
citations. The evaluation incorporated input from industry 
stakeholders, including mine operators and miners' representatives. 
During the pilot program, operators frequently opted not to participate 
in pre-assessment conferences, but there was a high resolution rate for 
those that did.
    Each MSHA district must determine when to implement the pre-
assessment conferencing procedures based on available resources. 
Implementation may occur slowly, or not at all in some districts, until 
other backlog reduction strategies take hold and reduce caseloads to 
more manageable levels. Although no single strategy will reduce the 
backlog of contested cases before FMSHRC, MSHA believes this may help 
resolve some cases. Last year, FMSHRC instituted a rule regarding 
simplified proceedings. To further reduce the number of contested 
cases, we are also pursuing agreements, such as global and holistic 
settlements, that would settle a large number of violations at one 
time. As I noted above, Alpha agreed to withdraw many notices of 
contest from the Massey legacy companies and pay the penalties in full. 
This action alone has reduced contested violations pending at FMSHRC by 
more than 6,600.
Mine Emergency Response
    Prior to UBB, I ordered a review to identify gaps in the nation's 
mine emergency response system. During our response to the disaster, 
while I was able to witness firsthand the heroic efforts and selfless 
commitment of company, State and Federal mine rescue crews, I also saw 
first-hand several critical gaps in communications and logistics that 
remain unfixed from past emergencies.
    As I noted in earlier testimony, MSHA has made progress in this 
area, but there is more to be done. MSHA is continuing its thorough 
review of emergency plans and procedures to identify and fix gaps in 
the system. On May 7, 2012, I am convening a two-day mine rescue summit 
at the MSHA Academy in Beckley, WV. Mine rescue experts from all 
sectors of the mining community have been invited to attend. The summit 
coincides with mine rescue competitions, so those participants can 
attend the summit as well. The goal of the summit is to provide 
information from all sectors about the latest improvements in mine 
rescue, to identify remaining gaps in mine rescue response and 
preparedness, and to decide what further actions are needed to ensure a 
swift and comprehensive response from government, industry and others 
when a mine emergency happens.
    Something that should not go unnoticed is that the 2006 MINER Act 
greatly enhanced our mine rescue response to the UBB tragedy. The MINER 
Act improved the number, availability and quality of training of mine 
rescue teams. I can tell you that I and the other mine emergency 
personnel who coordinated the rescue efforts at UBB greatly appreciated 
this improvement in mine rescue team strength and preparedness.
Protecting the Rights of Miners
    The UBB tragedy crystallized the concern that more needs to be done 
to provide miners with a voice in the workplace to help ensure that 
miners are not intimidated from voicing safety concerns when they see 
poor safety practices and hazards. This was illustrated at the field 
hearing held by this Committee in Beckley, West Virginia in May of 
2010, when the UBB accident brought into public view a culture in 
mining that many of us here have witnessed for years. That is one in 
which workers are afraid to speak up about safety hazards because of 
fear of losing their jobs. Miners raising their voices about safety 
concerns will serve to make mines safer and healthier places to work.
    Having a voice in the workplace is not just a mining issue--it is a 
right that all workers have. Department of Labor Secretary Hilda Solis 
has said that her vision for the Department is ``Good Jobs for 
Everyone.'' One of the components of a good job is that it is safe, 
secure, and provides workers with a voice in the workplace. I share the 
Secretary's strong commitment to good jobs and worker voice.
    To reflect our commitment to worker voice, we are using all our 
available tools to protect miners from discrimination when they make 
complaints about dangerous conditions, or exercise other rights 
provided to them under the Mine Act. The fear of losing a job--even 
temporarily until a discrimination claim can be litigated--makes a huge 
impact on a breadwinner for a working family, and can force a miner to 
choose the care of his or her family over other safety concerns. At 
UBB, we discovered from family and friends of the deceased miners, that 
many of those miners were afraid of the conditions at UBB but needed 
their jobs to provide for their families. Between 2006 and the date of 
the UBB explosion, for instance, MSHA received only one complaint about 
the conditions at UBB.
    We have stepped up the use of our authority under the Mine Act to 
request temporary reinstatement for miners who claim unlawful discharge 
while we fully investigate the case. From October 2007 to September 
2009, the Department of Labor pursued a total of nine temporary 
reinstatement cases. By comparison, from October 2009, the month I took 
office, to September 2011, DOL sought 48 temporary reinstatements, an 
increase of more than 500 percent. For all types of Mine Act 
discrimination cases during that time period, the number of cases that 
DOL pursued rose by over 100 percent.
    MSHA also has made new efforts to educate miners about the Mine 
Act. In June 2011, we launched a campaign to inform miners of their 
rights, including the right to refuse to work in dangerous conditions, 
the right to file a complaint or report a hazard with MSHA, and the 
right to select a representative in safety and health matters. We have 
shipped over a million pieces of information, including guidebooks, 
wallet cards, flyers and other materials to our field offices, in 
English and Spanish; our inspectors and Educational Field Services 
staff are distributing them to miners. MSHA also produced an online 
guide to miner's rights and responsibilities and a training video on 
that is available on our website.
Need for Legislation
    Almost two years have passed since we lost the 29 miners at Upper 
Big Branch. We have learned much in that time. One important lesson we 
have learned is how to better use all of MSHA's available tools and 
strategies to fully enforce the Mine Act--including targeted 
enforcement, regulatory reforms and compliance assistance. The 
strategies the agency has used for its impact inspections have been 
successful. In addition, proposed regulatory actions, if implemented, 
will make operators more responsible for finding and fixing violations 
and will help us more effectively address mines with continuing 
problems. Our compliance assistance and outreach efforts also will 
ensure that operators who want to do the right thing have the tools 
they need to avoid violations and hazards.
    Despite our efforts, there are operators who continue to violate 
the law and place miners at risk. We all know MSHA cannot be at every 
mine all the time. As we are learning from the DOJ's criminal 
investigation of UBB, even when MSHA is there, a determined operator 
that intimidates miners and willfully engages in a pattern of 
subterfuge will be at least partially successful in hiding hazardous 
conditions and practices from MSHA, with potentially tragic results. We 
need to change the culture of safety in some parts of the mining 
industry, so that operators are as concerned about the safety of their 
miners when MSHA is not looking over their shoulders as when MSHA is 
there.
    In addition, the egregious problems found during some of our impact 
inspections and the extreme measures MSHA has had to take to find 
them--arriving off-shift and monitoring mine phones--validate the 
Administration's support of focused improvements to the Mine Act to 
give MSHA the tools it needs to address chronic violators that fail to 
take responsibility to operate safely and within the law.
    I hope that we can work together across the branches and political 
parties to address at least the following areas:
    Certification Procedures: Federal law does not contain 
comprehensive certification requirements or any means for revoking 
certifications of miners in the most critical safety sensitive 
positions, such as mine superintendents, mine foremen, or mine 
examiners. Legislation enabling MSHA to establish minimum 
qualifications for certification for these positions, and a 
decertification process for the failure to properly perform the 
required duties of such positions, would improve miners' performance of 
key health and safety functions, and create a strong deterrent against 
putting profits above safety. Any such legislation should also provide 
for coordination with state programs.
    Criminal Penalties: Legislation should strengthen the criminal 
provisions of the Mine Act. No mine operator should risk the lives of 
its workers by cutting corners on health and safety, but for those who 
do, we need to remove obstacles to prosecution and provide sufficient 
deterrence against endangering the lives and safety of miners. We hope 
and intend that criminal prosecutions under an enhanced Mine Act would 
continue to be rare, but we should remove legal obstacles that 
currently make cases difficult to prove. Earlier this month, for 
example, Murray Energy, a subsidiary Genwal Resources, Inc., pled 
guilty to two misdemeanor counts for its criminal conduct prior to the 
2007 Crandall Canyon mine disaster that killed eight miners and an MSHA 
inspector. In accepting the plea agreement that only required Genwal to 
pay a fine of $500,000, U.S. District Judge David Sam expressed his 
``outrage at the minuscule amount of the penalty provided by the 
federal statute.'' We hope that although new legislation would remove 
the obstacles to criminal prosecution, such prosecution would remain 
rare for the right reason: because a stronger law provides a successful 
deterrent.
    Enhanced criminal penalties should also extend to those who provide 
advance notice of MSHA inspections. At UBB, PCC/Massey used advance 
notice to warn those underground that an inspector was on the premises 
and to order miners to hide hazardous conditions. As we all know, the 
consequences of that activity were tragic.
    Even in the aftermath of UBB, there have been troubling reports of 
some operators continuing to provide advance notice of an MSHA 
inspection to hide violations and carry out other conduct that puts 
miners at serious risk. Finally, legislative reform should aid 
prosecutors in holding accountable corporate decision-makers when their 
actions demonstrate a criminal disregard for the lives of miners.
    Expanded Authority to Address Mines with Systemic Health and Safety 
Problems: The current law does not have a ``quick fix'' to the safety 
of mines like the Freedom Energy Mine, where MSHA for the first time 
ever sought an injunction for a pattern of violation under section 108 
of the Mine Act to change a culture of non-compliance that threatened 
the safety and health of the miners. While MSHA was successful in 
compelling the mine to implement additional safety and health 
protections as a result of using section 108(a)(2), the current statute 
could be simplified to help MSHA adequately protect miners. The lesson 
learned is this: the litigation process using the existing tool may be 
slower than needed to protect miners, and new legislation should 
consider language that clearly provides the Secretary of Labor with 
sufficient authority to act when she believes protecting miner safety 
and health requires immediate action.
    Whistleblower Protection: New legislation must ensure that miners 
are fully protected from retaliation for exercising their rights. 
Because MSHA cannot be in every mine during every shift, a safe mine 
requires the active involvement of miners who are informed about health 
and safety issues and can bring dangerous conditions to the attention 
of their employer or MSHA before tragedy occurs. Yet, as we heard from 
miners and family members testifying at the House Education and Labor 
Committee's May, 2010 field hearing in Beckley, West Virginia, miners 
were afraid to speak up about conditions at UBB. They knew that if they 
did, they could lose their jobs, sacrifice pay or suffer other negative 
consequences.
    The Mine Act has long sought to protect from retaliation those 
miners who come forward to report safety hazards. But it is clear that 
those protections are not sufficient and many miners lack faith and 
belief in the current system. Legislation that creates stronger 
remedies and a better process is urgently needed.
Conclusion
    Thank you for allowing me to testify before the Committee. April 5, 
2012 will be the two-year anniversary of the tragedy at Upper Big 
Branch. Along with the families, we mourn the deaths of these 29 
miners.
    Going forward, it comes down to this: MSHA cannot be at every 
mining operation every shift of every day. There could never be enough 
resources to do that, but even if there were, the law places the 
obligation of maintaining a safe and healthful workplace squarely on 
the operator's shoulders. Improved mine safety and health is a result 
of operators fully living up to their responsibilities. Taking more 
ownership means finding and fixing problems and violations of the laws 
and rules before MSHA finds them--or more importantly--before a miner 
becomes ill, is injured or is killed. Mines all across this country 
operate every day while adhering to sound health and safety programs. 
There is no reason that every mine cannot do the same.
    I look forward to working with the Committee to find the best way 
to accomplish our shared goals of preventing another mine disaster and 
providing our nation's miners the safety and health protections they 
deserve. We owe the victims of the Upper Big Branch disaster and their 
families no less.

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                                 ______
                                 
    Chairman Kline. Thank you, Mr. Secretary.
    You mentioned in your testimony and every investigation and 
every report of the Upper Big Branch disaster has made it 
perfectly clear that Massey was operating outside the law. 
There is no question. They are officially one of the bad guys 
here.
    But you are here today representing MSHA, the agency that 
is tasked with ensuring the safety in our nation's mines. And 
that included of course, safety at the Upper Big Branch.
    So I would like to quote again from NIOSH's independent 
review where they said, ``If MSHA had engaged in timely 
enforcement of the Mine Act and applicable standards and 
regulations, it would have lessened the chances of, and 
possibly could have prevented, the Upper Big Branch 
explosion.''
    Do you agree with that statement?
    Mr. Main. You know, that is a----
    If you look at all the investigative findings thus far, and 
I believe even the NIOSH report pointed this out, that Massey 
caused this disaster.
    Having said that, I can't say for certainty that it could, 
or could not, have been preventable. I think the--you know, we 
look at all the facts that are on the table. But what I firmly 
believe, I haven't seen the facts that tell me that we could 
have taken the action necessary to have stopped that.
    There are a lot of things we should have done differently. 
There are a lot of things we could have done differently.
    But it is my firm belief, Mr. Chairman, that if an 
inspector had walked into that mine on April the 5th, found 
what was going on, they would have shut it down in a heartbeat. 
I really believe that.
    Chairman Kline. So the question sort of remains that MSHA 
had a number of opportunities, and you have seen that in the 
reports, your own investigation, and NIOSH's investigation, to 
see what was going on even though Massey was engaged in 
violation of the law.
    And this seems pretty clear to me that if MSHA had engaged 
in timely enforcement of the Mine Act and applicable standards 
and regulations, it would have lessened the chances of and 
possibly could have prevented the Upper Big Branch explosion. 
And your----
    Mr. Main. Well, I am saying basically what--and I have 
looked at a lot of the facts in this case and tried to plow 
through everything that has been developed. And I think some of 
the issues that have been raised maybe point a closer fix on 
the question you raised or the inspections that were done over 
the last inspection period.
    The question is did MSHA identify float coal dust in that 
mine that they didn't take appropriate action on?
    I mean if you look at it from that sense.
    I have found no case where they identified float coal dust 
in that mine and did not take action.
    With regard to the inspections that you referred to, the 
four inspections, actually the four inspections that took 
place, only one of them was a regular inspection.
    The others were in--I think, one case a blitz inspection 
that took place where a team of inspectors went to the mine for 
the purpose of addressing a serious ventilation problem. 
Actually issued an order upon their arrival, and spent their 
time dealing with the ventilation problem. And they had the 
mine down actually for about 3 days during the order.
    And I think the other inspection that was involved in the 
four inspections was where an inspector went up to the 
tailgate, but it was in this entry that was the return off of 
tailgate 22 was isolated from the whole tailgate entries as 
well.
    So I think there is a series of facts there that I think 
you have to look a little bit deeper at. But, you know, in 
terms of the rock dusting issue, and let me just swing back to 
that.
    I don't know if folks have had a chance to read the 
testimony of the superintendent, Gary May, who testified before 
a proceeding--a sentencing proceeding about 3 weeks ago.
    Where he admitted, as the superintendent of the mine, that 
they used advanced notice to keep MSHA from learning what the 
hazards were, what the violations were. He even said as a 
section boss, whenever MSHA would come into their mine, he 
would scatter a little bit of rock dust around basically to 
pretty it up and make it look like he had been rock dusting.
    In the areas that the inspectors were in, prior to the 
explosion, they were up on Headgate 22, which was the 
development section on the northern side of the mine. This is 
where the explosion forces was the worst in that mine that we 
found, where the fuel loading was the heaviest.
    On March the 15th, inspectors went into that section, did 
their inspection, sampled the rock dust. That rock dust went to 
the lab. And what the lab found--and this came out post-
explosion--what the lab found was at that time that section was 
basically in compliance.
    All the samples were in compliance with one which is fairly 
close.
    Now between the 15th of March and April 5th, something 
happened. And the inspectors of course, we knew was not back 
into that area. But if you look at the company's record books 
during that period, it appears that there was a lot of float 
coal dust and combustible material building up.
    If you look at the belt entry, which was for the longwall, 
which was the area that the explosion travelled through, 
inspectors went into that area on March the 15th, conducted an 
inspection, issued an order on, I believe, the tail drive of 
the belt, and had a citation on the entire belt itself, the 
whole longwall belt.
    They went back in, I believe it was on the 24th of March, 
to make their last inspection which they required the company 
clean it up and rock dust that belt. That was terminated based 
on the inspection on the 24th, I believe, of March.
    That was the last time an inspector was in that area.
    And if you look at the company record books of the float 
coal dust and the coal spillage that was occurring from the day 
of the explosion back, you are going to find there is a heavy 
listing of conditions----
    Chairman Kline [continuing]. My time has expired. And I 
know I have all of my colleagues are eager to engage in this 
conversation.
    So I am sure we will continue to pull this out.
    It is unfortunate that apparently depends on which set of 
the company's books that you were looking at, the ones that 
they cooked or the real books.
    Mr. Miller?
    Mr. Miller. Thank you very much, my apologies for coming 
late to the hearing. I want to thank Ms. Woolsey for providing 
the opening statement and sitting in the chair for that moment.
    Mr. Main, thank you very much for your leadership at MSHA. 
And thank you for your leadership in response to this tragedy, 
and rebuilding the resources in MSHA so we don't have to go 
through this again hopefully ever again.
    I want to read, you mentioned, Mr. Gary May. I want to read 
from his court transcript in a back and forth with the U.S. 
Attorney's office.
    And the question is, ``Mr. May, while you were up at Upper 
Big Branch Mine, was there a practice of providing warnings 
when MSHA inspectors were coming to the mine?''
    Answer: ``Yes.''
    Question: ``Can you tell us from beginning to end, how 
these warnings were communicated.''
    Answer: ``It would start usually with someone came through 
the guard shack. There would be a phone call and it would be 
announced over the radio. It would be, quote--'company on 
property'. From that point it would be received at the office. 
And from the office they would call underground and let them 
know that we had, quote--'company'.''
    Skipping forward in this discussion:
    Question: ``How often at Upper Big Branch Mine were the 
warnings given that inspectors were coming on the property?''
    Answer: ``A lot.''
    Question: ``Was it most of the time?''
    Answer: ``Yes.''
    Question: ``Was the Upper Big Branch Mine able to avoid 
citations from MSHA because of the practice of advance warning 
of inspections?''
    Answer: ``Yes.''
    Question: ``Did you know if it was illegal to give advice 
notice of a mine inspection?''
    Answer: ``Yes, I knew it was unlawful.''
    Question: ``Did your superiors at Upper Big Branch Mine 
know about this practice of giving advance notice to 
inspections?''
    Answer: ``Yes.''
    Question: ``Did they encourage it?''
    Answer: ``They did.''
    When asked whether he would spread rock dust when he was 
warned inspectors were coming, Mr. May answered, quote--``I 
always spread extra rock dust if I knew someone was coming to 
make everything look good,'' unquote.
    How do you conduct inspections in that kind of atmosphere?
    Mr. Main. It is almost impossible to be able to enforce the 
law when those kind of activities are in place.
    Mr. Miller. Does your report corroborate with what Mr. May 
said that this happened most of the time, all of the time on--
--
    Mr. Main. I have to give----
    Mr. Miller [continuing]. Came on the property?
    Mr. Main. Yes, I have to give our inspectors credit. 
Despite that plan, the year before this explosion, they issued 
more closure orders--of one authority closure orders at that 
mine--any mine in the United States.
    So I think that that showed the fact that we had some 
pretty aggressive inspectors. But there is a lot we didn't 
know.
    There is a lot that they did hide, I believe.
    Mr. Miller. But in this case, the discussion is really 
about a calculated interference. This was a matter of company 
policy apparently.
    That if inspectors were on the property, efforts were made 
to move them either to other parts of the operation or to shut 
down operations, or clean them up prior to letting the 
inspectors come to that part of the active mine.
    Is that correct?
    Mr. Main. I think they hid a lot of stuff from regulators, 
yes.
    Mr. Miller. Now, in the NIOSH report, it is pretty clear 
that there were procedures that just didn't fall in place in 
terms of looking at some of the report that were filed by 
inspectors and taking action on those reports.
    Is that correct?
    Mr. Main. I am sorry. I didn't----
    Mr. Miller. In the criticisms of the agency, the suggestion 
is then that some reports were made and action wasn't taken. 
They were sort of left on the shelf, if you will, for an 
extended period of time.
    Mr. Main. Yes. I don't think there is any question that 
there was things that we could have done better at Upper Big 
Branch.
    Mr. Miller. Go ahead.
    Mr. Main. But I think by the same token, what you are 
expressing here--what the agency was up against that was well 
articulated by the Superintendent May, was a challenge 
sometimes beyond the capability of any inspector, even 
experienced inspector to catch up with.
    Mr. Miller. But in your internal review, you say however--
on page 107--however, District Four did not collect rock dust 
samples in the longwall gate entry at UBB after the longwall 
began production. Nor did MSHA proceed just specifically direct 
them to do so.
    So was the guidance wrong? Or was this inspectors not doing 
their job? Or was there an improper guidance for----
    Mr. Main. There is a guidance issue. And this is something 
the report gets into
    There was a serious problem with the policies of the 
agency. There was a system that was in place up to 2002. It was 
dismantled for whatever reason.
    From that point forward, every programmer really was on 
their own to develop policies and to implement those in what 
the internal review team found was that the--I think there was 
like 199 policies that was generated from 2004 forward. And 
depending on when he was hired, he may or may not have known 
about those. And one of them dealt with rock dusting.
    Different inspectors had different instructions about how 
to do rock dust sampling in the mine.
    Mr. Miller. Thank you.
    Chairman Kline. I thank the gentleman.
    Dr. DesJarlais?
    Mr. DesJarlais. Thank you, Mr. Chairman.
    Mr. Main, one of the conditions that led to the 
catastrophic explosion at UBB was the accumulation of coal 
dust. In fact, MSHA's investigation report contained pictures 
of belts that had been rolling through coal dust.
    The NIOSH independent panel stated the mine operation did 
not and could not conceal readily observable violate conditions 
such as float dust accumulations throughout the UBB mine.
    And as Ms. Woolsey alluded to in her opening testimony, how 
can MSHA attribute the existence of these conditions to 
inspector inexperience and resource constraints?
    Mr. Main. Yes, I think--and I am looking at two pieces.
    One is the conditions that are directly involved in the 
explosion itself. And if you start with that and look at the 
area where the explosion occurred, and where the fuel was at to 
cause that explosion, we have examined three areas.
    There is something that we missed in that area that was 
part of that explosion.
    You know, what I was trying to explain is that in that 
area, I didn't see any evidence from any of the reports that I 
found that inspectors had walked by an area and did not take 
appropriate enforcement action.
    As a matter of fact, what I was pointing out is where they 
did inspect and what they did find in the critical areas.
    One area that is probably the most important is the 
question I asked myself. You know, in knowing mines is how did 
we have such an explosion right off the tailgate?
    And there was no evidence the company had any real 
methodology in their post explosion investigation of 
continually rock dusting that area.
    What we found was that the inspection was made of that area 
really happened over a 3-day period, March 9th through the 
11th. And we had a ventilation specialist in that area. We had 
an entry supervisor and a trainee in that area. And we had an 
inspector in that area.
    And it all dealt with--that was an area they went to where 
they issued an order to close down the mine because of the 
ventilation problem.
    And this was an area--and let me just give you this 
picture. When the inspector showed up to do this last 
inspection, here comes the gang of six inspectors into the 
parking lot of the Massey Energy Upper Big Branch Mine.
    And I think the word that was used was, hell storm, 
whenever more than one inspector showed up. It took an hour and 
a half for those inspectors to get up to that spot.
    And we know that just before they got to that location, at 
about--I think it was about 9:48 a.m., the company shut down 
the shearer and claimed that they had a problem.
    This is according to their records.
    It was so convenient for that to happen.
    The inspectors arrived at the area an hour and a half to 2 
hours, somewhere in that timeframe, after they showed up on the 
property, and if Mr. May's instructions that they used to get 
was correct, and the area that we are talking about where the 
rock dusting would have been visible, where they were out at 
the tailgate, is not a large area.
    The question everybody has to ask was did those inspectors 
spend 3 days in an area tramping over this and see totally 
black stuff he didn't do anything with, or was there something 
done ahead of them?
    And that is what has bothered me all the way through is how 
these inspectors could have missed that float coal dust, unless 
it wasn't there to be seen. It was masked by throwing some rock 
dust on it.
    I don't know. I mean that is--when we get to the bottom 
of----
    Mr. DesJarlais. Okay, let us talk about MSHA's internal 
review where they repeatedly cite inspector inexperience in the 
District 4 as a root cause of MSHA's deficient inspections at 
UBB.
    You know, it sounds like you are saying regardless whether 
we had experience or inexperience inspectors, this probably 
would have been missed. Yet if they were there on the day of 
the explosion, they would have caught it.
    Mr. Main. Yes, some of the conditions were bothersome that 
were identified. But in terms of the conditions that actually 
existed.
    And the $64 question is--and I think it has to be asked--
did that company do something the day that the last inspection 
was made that masked what they were doing?
    Mr. DesJarlais. Okay, I am trying to focus on----
    Mr. Main [continuing]. You know----
    Mr. DesJarlais [continuing]. The inspector inexperience. Do 
you agree that the inspectors were inexperienced?
    I mean, yes or no.
    Mr. Main. Oh, absolutely.
    Mr. DesJarlais. Okay. When do you think the MSHA inspectors 
will be adequately trained? And are they ready now?
    Mr. Main. Well, and let me talk about that, because this 
was not something that just happened overnight. I think if you 
look at both the reports. And the NIOSH report, I think, 
pointed this out as well.
    There was a severe staffing problem at MSHA that was 
created starting back around 2001, when there was a flat line 
budgeting of MSHA, which caused the agency to have to eat 
itself, so to speak, by cutting back on FTEs just to be able to 
stay at its funding's level.
    In 2004, there was a budget cut in the co-enforcement 
program that further reduced the staff.
    At the same time, you saw a major retirement take place in 
MSHA, and it was pretty overwhelming when you look at the 
numbers. I think between 2001 and 2006, there are over 1,000 
people left that agency.
    And the agency had an average of about 2,300 folks. I think 
there was 690 some out of about 1,100 that left the coal 
enforcement ranks. So you had an agency that was basically 
devastated.
    Congress made a wise decision 2006. Added new funding which 
wasn't realized until 2007 when it was able to start hiring 
back up again. But it takes 2 years to get the inspectors 
through the training programs.
    So just about the time that UBB was hitting--MSHA was 
getting its ranks back up to a level that they were able to 
start managing it.
    The problem is they had a lot of inexperience.
    If you look through that same period, managers was leaving 
out right and left. We had six different district managers 
running District 4 from 2003 to 2006. And that was at a time 
when those ventilation records sort of didn't get handled.
    And you had at the time of the explosion, management of the 
field offices that was changing out. There was three different 
managers, field office managers, two of them acting during the 
time of the last couple of inspections at UBB, so all this 
stuff caught up with the agency.
    Specialists were just wiped out to the core, where they 
were unable to keep up the specialty work.
    I knew at the first part of the review process the IR team 
found that there was two ventilation specialists in the whole 
district.
    This is a district that had over 50 Massey mines. They were 
down to two ventilation specialists.
    That ramped up to about six by the end, but there is no 
question there is an experience problem. There is no question 
that the experience losses had to do with both the budget 
constraints and the attrition of the agency that left it where 
it was at.
    Chairman Kline. The gentleman's time has expired, more than 
expired.
    Ms. Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman.
    Mr. Secretary, Federal District Judge David Sam noted 
recently at a court hearing where during the sentencing of 
Murray Energy for two Mine Act violations connected to the 
Crandall Canyon mine disaster.
    This is going to get me to a question I am going to ask 
you. That is why I am going to that.
    He said, and I quote him. He said, ``I am outraged because 
of the miniscule amount provided by the criminal statute'' in 
the sanctions and the fining these criminals from Crandall 
Canyon.
    So, Mr. Chairman, I have a copy of that. And I would ask 
unanimous consent to insert it in the transcript.
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    Chairman Kline. Without objection.
    Ms. Woolsey. Thank you.
    So the Mine Act classifies a willful violation of a 
mandatory safety standard as a misdemeanor, even when miners 
are injured or killed.
    So that is true even when making a false statement under 
the Mine Act. And that is a felony only.
    So would it make a difference, why would it make a 
difference, if instead of these weak miniscule criminal 
statutes, we had stronger felonies--whatever you call them 
under the--if we treated these endangered miners that were hurt 
and willful violations of mandatory safety standards were 
treated as a felony under the Mine Act instead of a 
misdemeanor?
    Mr. Main. I believe the judge expressed his frustration of 
his inability to take tougher action where he believes, from 
why I have read, tougher action was needed because of the 
constraints of the Mine Act.
    I think it is pretty straightforward. I think the U.S. 
Attorney's office expressed similar concerns of what they 
believe that their limitations to bring forward other actions.
    And I think it is a classic case, if you have to step back 
and take a look at to determine whether or not there are 
sufficient tools under the Mine Act to deal with circumstances 
like that.
    And I will just point back to some of the things that we 
are still finding through some of our impact inspections.
    You know, if anybody thought that advance notice of 
inspections was a piece of history, we are living in a 
different world. I mean, that is something we constantly find.
    This kind of conduct is so ongoing that it doesn't seem 
that there is enough deterrent under the Mine Act to prevent 
that from happening.
    Ms. Woolsey. Thank you for asking my convoluted--answering 
my convoluted question in a way we could understand what I was 
asking.
    Thank you very much.
    The MSHA internal review, Joe, found that in six separate 
cases managers at the Upper Big Branch Mine should have been 
investigated for willfully violating safety laws.
    Why weren't these cases investigated? And is MSHA 
conducting those investigations now?
    Mr. Main. There is about three reasons, I think, to answer 
the question why weren't they.
    In addition to the ventilation and roof control specialist 
staff, these cuts also affected special investigations 
throughout MSHA as part of our special investigations staff 
that was cut.
    And I think if you look at our testimony, I think there is 
a chart in there that shows this whole specialist dip. So there 
is a real resource problem of what the inspectors could do.
    The other problem that existed, which was raised in the 
internal review, was that around 2006, I believe it was, MSHA 
was only able to carry out about 83 percent of its inspection 
responsibilities. They were shifting people over just to do, 
you know, you know, targeted inspections at mines they couldn't 
get to.
    They were pulling off ventilation specialists and special 
investigators and others to go just try to keep the mandatory 
inspection program up because they were so short-staffed and 
couldn't keep up.
    Ms. Woolsey. Well with that in----
    Mr. Main. But that is----
    Ms. Woolsey [continuing]. With that in mind, do you agree 
with NIOSH, their independent panel recommendation, to conduct 
four complete inspections each year at underground mines as a 
way to reprioritize resources.
    I mean, would that help?
    Mr. Main. Yes, to finish up the last question. All of those 
cases were shipped off to the U.S. Attorney's Office that were 
identified.
    So those were processed.
    To answer your second question, you know, I went to work 
before there was ever a Mine Act in this country in 1967. I 
don't know if there is anybody else around here that did.
    But I remember the first time the federal inspector showed 
up at the mine. It was a game changer.
    And I can tell you from my own personal experience that the 
two and four mandatory inspection program has saved more 
miners' lives out of that Mine Act than probably any other 
single thing.
    If you look at 178 or 278 miners, I think, that was dying 
on the job in 1977 when that act was passed, we are down to--
and we hope to get even to zero--but we are down in the high 
30s to around 40 today. And I think that had a lot to do with 
protecting these miners.
    It is like taking to strip that away, I think, is like 
taking two brakes off of a car because we don't have as many 
car wrecks now. I mean, this is a fundamental piece of the 1969 
Mine Act that miners were given.
    I think, the most fundamental protection they have.
    Chairman Kline. The gentlelady's time has expired.
    Mrs. Roby?
    Mrs. Roby. Thank you, Mr. Chairman.
    Thank you, Mr. Main, for being here today, we appreciate 
you taking the opportunity to answer our questions. And I have 
a few questions about the MSHA inspectors' work, especially 
about the days and the hours that they worked, especially on 
weekends.
    And unfortunately, I would preface my set of questions by 
admitting that for the past 5 weekends one of our nation's 
miners has died in a mine, including last Friday night at the 
Shoal Creek Mine in my home state of Alabama.
    And now that MSHA's internal review found that the agency 
conducted spot inspections at the Upper Big Branch at irregular 
intervals, and that none of the inspections occurred on a 
Saturday. And the internal review also found, and I quote--
``inspectors were contractually required to begin their work 
week no later than Tuesday,'' which, quote--``limited the 
opportunities for inspecting on Fridays and Saturdays.''
    So if I understand this correctly, does this mean that 
there were no inspections on Sundays? And you know, is this 
issue of not having or having infrequent Friday and weekend 
inspections widespread?
    Mr. Main. I think to answer the question was there anything 
on Sundays. You may be correct. There may not have been. I have 
to go back and check that. But I will tell you what we have 
done.
    We have made a lot of changes since the Upper Big Branch 
tragedy. And some of them started pretty quick. And one of 
them, you know, I directed my staff, we are going to do a 
better targeting of the problem mines that are out there, and 
approach these problems differently.
    If you look at the impact inspections that we do every 
month, a lot of those are done on off shifts when they are 
least expecting MSHA to show up. And at a time for capturing 
the phones to prevent the mine operators from changing the 
conditions underground, prevent advance notice, so that is a 
tactic that we are using more readily now.
    The agencies have had to shift their personnel to address 
that. But they are.
    And you are right about the past 5 weekends. We have wound 
up, and you start wondering are we so much now on the weekends, 
we are shifting some of the, you know, some of the activities 
to a time they still don't think we are going to show up. I 
don't know.
    But in three of those, I believe, they were foremen that 
died, in these weekend deaths.
    Now, we just put alert out to the mining industry this past 
week to get them to focus on that as well. But the short answer 
is that we have changed the way we do business. We are focusing 
more time on the off shifts.
    We are plowing through both the data and the human 
information we have to figure out which mines do we really need 
to be at more often. And at times when they least expect us to 
be there.
    And I think that folks could pretty much realize that there 
is probably going to be even more weekend inspections at mines 
across the country.
    Mrs. Roby. That is good to hear.
    And I also understand that you were involved in the Jim 
Walter's mine investigation in Alabama.
    Mr. Main. Yes.
    Mrs. Roby. And during that investigation, MSHA discovered 
that the mine operator essentially kept two set of books. And--
--
    Mr. Main. There was a problem that dates back that far, 
yes.
    Mrs. Roby. Right. And so I understand that the 
investigation at Upper Big Branch also showed that Massey was 
keeping two sets of books by illegally reporting hazards in the 
coal production report.
    And so the question is given your experience at Jim 
Walter's mine in Alabama, what are you doing? And what will you 
be doing to ensure that mine operators are recording hazards in 
the official examination books rather than these, quote--``two 
sets of books?''
    Mr. Main. Yes. I would say that if I had been assistant 
secretary back in 2001, we would probably have taken a more 
aggressive action after that to not be talking about it so much 
in 2010.
    Having said that, there are a number of things that we are 
doing, and there are things that we were asking Congress to 
take a look at.
    We have pretty well made this clear to all of our 
inspectorate staff about what is going on. There is absolutely 
no problem for an operator to keep a set of books that lists 
hazards, as long as they put them in the required books.
    And that is one thing I want to make clear. What we were 
finding at Upper Big Branch was that they were listing hazards 
in their production books. They weren't in their routine books.
    This is conduct that you have to get into the books to 
find. This is conduct that--you know, we don't have the powers 
to do subpoenas, for example, to go in a demand those kind of 
records, just something to think about.
    But our inspectors are alert to the fact that this is a 
problem. We have made them totally alert to the fact that we 
need to be doing a much better job of looking at the 
examination books.
    That was a failure that we found that Upper Big Branch that 
the inspectors were not as focused on what was actually in 
those books the way they should have been.
    So with the additional attention, the notice has been given 
to the mining industry, we are using all the tools we have. But 
we could use a few more.
    Mrs. Roby. Thank you, my time has expired.
    Chairman Kline. I thank the gentlelady.
    Mr. Andrews?
    Mr. Andrews. Thank you, Mr. Chairman.
    Mr. Chairman thank you for calling this hearing and the 
seriousness which I think all the members are approaching it.
    I think for 29 of our fellow citizens we have all engaged 
in an inexcusable failure. And I would start with us.
    I think that we failed to give prosecutors the tools to 
convict people of serious offenses and have sufficient 
punishment when they do. I think it is really outrageous that 
some of these offenses that were involved in the Massey 
prosecutions were not felonies.
    And we need to fix that.
    I think we have a responsibility for not giving MSHA all of 
the tools and resources and personnel that it has needed over 
time. And I think it is our responsibility to fix that.
    Mr. Main, I know the record is still being developed. But I 
think a fair statement is that some of the inspectors from MSHA 
failed to catch things that really can't be written off for 
lack of experience or lack of personnel. They just didn't do 
their jobs very well.
    And I think there should be some consequences in those 
cases.
    And certainly at the root of this problem is absolutely 
deplorable, criminally irresponsible behavior by a mine 
operator. And I know there are vigorous prosecutions going on 
as we speak with whatever tools we have given the prosecutors.
    I think obviously our focus should be on finding out what 
happened in this senseless loss of 29 lives. But our focus also 
ought to be on preventing something like this from happening 
again.
    And one of the things I am confident that you are doing is 
to think about how you train and how you supervise and how you 
manage the people who work for you. And I will leave that to 
your discretion.
    But I do want to take a look at whether we have given this 
agency that you run the resources and the experienced personnel 
or not that we should.
    And it bears mentioning that in 2001, we had spent $122 
million to run your agency. By 2006, it was down to $117 
million, which in real dollar terms is about a 15 or 20 percent 
cut.
    And not coincidentally, and I would like that chart 
[KB1]that was just up to be back again. What happened during 
that period of time, it looks as if many of your experienced 
inspectors, which is represented by that green--by the red 
line, the declining line, that the number of experienced 
inspectors you had, the average experience dropped 
precipitously, as I understand it, from about 12 years of 
experience to about 5.
    Why were experienced people leaving the agency during that 
period of time?
    I know you weren't running it. But I am sure you have 
talked to people.
    Why were experienced people leaving the agency during that 
time?
    Mr. Main. In the period of?
    Mr. Andrews. This would be the period from say 2002 to 2006 
or 2009.
    Mr. Main. I can't speak for the motives of the folks, why 
they left. But there was a large number of employees that were 
retirement eligible.
    You know, why they decided to exercise that--I mean, that 
is something that I think you would have to ask them.
    You know, a couple of other items that you raised too. One 
is, you know, there is absolutely--could we have done better. 
There is absolutely no question about that. And we are on a 
path to really just take a step back and fix the problems in 
MSHA.
    And we are not taking the same approach that was done in 
the past internal reviews because I have said from the outset, 
if we do the same thing the last folks did----
    Mr. Andrews. Yes----
    Mr. Main [continuing]. We are going to compound the 
problem.
    Mr. Andrews. I know you are not saying--and I don't believe 
that simply spending more money on a problem like this works. 
But I sure do think that spending less, then it may exacerbate 
the problem.
    The budget that is going to be under consideration on the 
House floor probably this week, if you take the projections 
across the budget, if you prorate them, which they may or may 
not do in the appropriations process.
    If you prorate them, you would have 5.4 percent less money 
to operate on this coming year than you have right now.
    And if you prorate these for 2014, you would have 19 
percent less than you have to operate on right now.
    What impact would that have on your ability to protect 
these miners?
    Mr. Main. I think take a look at the IR report and see what 
they found, what the last impact of that was. And I think you 
could pretty----
    Mr. Andrews. What does it say?
    Mr. Main [continuing]. Pretty well predict the future. You 
cannot--if you expect to have an effective enforcement agency, 
you have got to pay for it.
    I think it is that simple.
    And I think that in terms of the lesson that have been 
learned from the Upper Big Branch is that if we could all go 
back and redo history through 2001 through 2006, we would 
probably all agree to do that.
    And having said that, I think it is a step that we don't 
want to take in the future to go down that same road.
    Mr. Andrews. Thank you, Mr. Main. Thank you, Mr. Chairman.
    Chairman Kline. I thank the gentleman.
    Dr. Roe?
    Mr. Roe. Thank you, Mr. Chairman and thank you, Mr. Main.
    And to start with, just to offer my sympathy to the 
families, obviously the 29, plus the friends, acquaintances and 
so forth of this horrible tragedy.
    And it seems to me that it was a perfect storm. It was an 
unscrupulous company that wasn't following the rules. And MSHA 
who didn't really inspect those or follow those rules very 
carefully themselves.
    It is absolutely a perfect storm had this tragedy happen.
    I agree with you, the MSHA didn't cause the explosion. They 
did not do that.
    And in reference to Mr. Andrews' chart that he just had up, 
just for the record, the chart does not show the experience 
that MSHA folks are required to have before they come to work 
for MSHA.
    Mr. Main, as you know, your agency received significant 
funding increases over the last 6 years, funding which has 
increased from $278 million in 2006 to $373 million this year, 
a 34 percent increase over 6 years.
    With respect to funding dedicated specifically to coal 
enforcement, funding levels increased from $117 million in 
fiscal year 2006 to $165 million in fiscal year 2012, a 41 
percent increase over 6 years.
    In 2010, the late Robert Byrd, Senator from West Virginia, 
said of this MSHA and the Upper Big Branch disaster, ``I am 
perplexed as to how such a tragedy on such a scale could happen 
given the significant increases in funding and in manpower for 
the MSHA that had been provided by this subcommittee.''
    Senator Byrd went on to say, ``I don't believe it was 
because of lack of funding. I don't believe that MSHA lacked 
enforcement authorities. I don't believe that.''
    Without objection, Mr. Chairman, I would like to include 
Senator Byrd's opening statement from a Senate hearing held on 
May 20th, 2010 into this records hearing.
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    Chairman Kline. Without objection.
    Mr. Roe. I thank the chairman.
    Now, Mr. Main, your agency did in fact receive increased 
funding every year for the last 6 years did it not?
    Mr. Main. Yes, but I think you had to put this thing in 
context and look at the investigation findings which--the 
agency was depleted to probably its lowest point about 2006.
    In 2006, that is when Congress made a decision to add more 
resources.
    Those resources by the time it went through the process 
things have to go through, to where the agency could start 
hiring up was in mid-2007.
    In mid-2007 as the agency started to hire, the amount of 
time it took for those inspectors to go through the training 
process was about 18 months to 2 years.
    Now keep in mind, you still have people retiring that was 
coming out of the system as well.
    But the bottom line is, you know, as far as the healthiness 
of where we are at in these later years, and having more 
stability and having more people experienced----
    Mr. Roe. Let me interrupt you just a second.
    As a physician, we have young doctors that come out that 
are fully trained. And when they are fully trained, they are 
expected to do the same job that a senior physician like I 
would do. So I don't think that is an excuse.
    When you are trained up to do the job, you ought to be--we 
can't use that as an excuse when someone does a cesarean 
section or whatever, or a cancer operation. You are either 
qualified to do it or you are not.
    Mr. Main. I do look for the older doctor myself. But that 
is okay.
    Mr. Roe. Well, let me--a second question. And I might do 
the same.
    Do you agree or disagree with the statements made by 
Senator Byrd less than 2 years ago about this very tragedy and 
the actions of your agency?
    And if you disagree, why do you disagree?
    Mr. Main. No, I think--yes, I think what the senator and 
probably a lot of folks were of that belief until folks really 
had a chance--unfortunately the senator didn't get to live long 
enough to see this all the way through.
    But to see how much the agency was shorted. And how long it 
took for the money they put back in to have a real effect.
    At the time of the Upper Big Branch tragedy, of the lead 
inspectors that was at Upper Big Branch, I think five out of 
six of them was hired in this latest class of 2006 forward.
    If you look back at 2007 and look at the make-up of 
District 4 and the agency, 33 percent of District 4 and the 
agency were trainees----
    Mr. Roe. Okay. Let me ask one question before you--I think 
my time has almost expired.
    It would be egregious findings there. Could you have just 
shut this mine down? Just said, look, it is closed. It is too 
unsafe for miners to go in there.
    Mr. Main. On 48 occasions, MSHA went in that mine in 2009 
and shut them down using the full measure of the law they had. 
And the authority under the law which says that once you 
correct the problem, you can put it back to work.
    Okay. And the mine did that.
    This is an issue that has been talked about. But there is 
no silver bullet. We have asked Congress to consider that.
    We have tried to come up with ways to have a holistic way 
to deal with the mine that is seen as an immediate danger. We 
use that at the Freedom Mine.
    In 2010----
    Mr. Roe. They didn't shut down----
    Mr. Main [continuing]. It took us 3 months to get there.
    Mr. Roe. They didn't shut it down and disaster occurred. 
That is a fact.
    Chairman Kline. The gentleman's time has expired.
    Ms. Fudge?
    Ms. Fudge. Thank you very much, Mr. Chairman, and thank 
you, Mr. Assistant Secretary, for being here today.
    This may seem a little repetitive, but I want to be clear.
    The first question, Mr. Assistant Secretary, is if you look 
at MSHA's fiscal year 2013 congressional budget justification, 
it provides that MSHA is vigorously pursuing policies and 
procedures to ensure miners are aware of their rights to report 
hazards without fear of discrimination.
    Can you tell me what you were doing in that regard 
specifically?
    Mr. Main. I am sorry. I missed the last part of your 
question. I apologize.
    Ms. Fudge. It indicates that you are pursuing policies and 
procedures to ensure miners are aware of their rights to report 
hazards without fear of discrimination.
    What are you doing in that regard?
    Mr. Main. Well, there is a number of things that we have 
done. And particularly after Upper Big Branch, and particularly 
after lessons--the information from the hearing that this very 
committee held in Beckley, West Virginia.
    We developed a lot of new training programs. We are getting 
information back out to the miners. We are getting more 
information to miners about their rights which are coal 
enforcement and metal and nonmetal enforcement program do as 
they reach the miners at the mine.
    We have beefed up our response to miners who file 
complaints. We have an obligation to protect them when they do.
    We beefed up protection particularly for those who are 
fired for speaking up about the safety rights if it is a 
protected activity in the Mine Act.
    And we have considerably increased the number of cases that 
we now take to the Review Commission for temporary 
reinstatement.
    So there are a lot of things that we are doing with regard 
to the miner voice issue to--and we think this is something 
that again was part of legislative processes that was discussed 
last year and contained in some of the bills, that we really 
think is something that needs to address giving miners 
additional protections beyond what they have now.
    Ms. Fudge. And that is what I was trying to get to. To be 
sure that they do have the protections they need, because I 
think that that contributed to the problem.
    Mr. Main. The last complaint--everybody saw the numbers 
that came out of here as far as what the violation issue was.
    The last complaint we received from that mine was in 2006, 
4 years prior to the explosion. And that is a sign that we 
really need to figure out a better way to give miners a voice 
to help them.
    Ms. Fudge. Thank you.
    And the other question you touched on just briefly in--I 
think when you were talking to my colleague, Mr. Andrews.
    Do you believe that MSHA should have subpoena powers?
    And do you think that had there been subpoena powers, it 
could have changed the outcome of the Upper Big Branch case?
    Mr. Main. I can't--I don't know if it would have changed 
the history back, because I don't know how it would have been 
utilized. It would have been a tool that could have been better 
utilized.
    This is something that was in the legislation. It was 
sponsored over the last couple of years, and something that we 
supported.
    I think if you look at the history, we had a number of 
witnesses that exercised their Fifth Amendment rights during 
Upper Big Branch tragedy.
    But even to get to that spot where they could be 
subpoenaed, we had to work with and utilize the State of West 
Virginia's subpoena power to even get to that point.
    We don't have that.
    Ms. Fudge. Thank you very much.
    Mr. Chairman, I----
    Chairman Kline. Would the gentlelady yield----
    Ms. Fudge. I would yield to the ranking member.
    Mr. Miller. Absent the subpoena power and absent some kind 
of whistleblower protection, Mr. Main, what you described here 
this morning is just a continued cat and mouse game where 
people continue to warn mining companies that inspectors are on 
the property after Upper Big Branch. And they continue 
apparently to cook the books.
    And so they continue along because basically they are 
immunized against the downside of that because Congress hasn't 
given you subpoena power. And workers don't have worker 
protection.
    So we are right back where we were before.
    All of the internal reviews and the rest of that, you are 
still citing people--you just cited somebody 32 times. You had 
to grab the phones and that on warning people that the 
government is on the property.
    And in answering the question here, yes, but the books 
continue--two sets of books continue to be kept. But we can't 
get to them because we don't have the subpoena power.
    So as long as Congress is going to insulate the mine owners 
from irresponsible and illegal behavior, I don't care how many 
people we give you to staff up. You are going to be playing on 
the short end of the field.
    And that is just not acceptable. You can't sit here and 
continue to lament the 29 deaths and the deaths that went 
before them and the deaths that are continuing to come, and 
then suggest that somehow you have got to do this with the 
blindfold and one hand behind your back.
    I mean that is where--at the end of the day--that is what 
you are describing to us.
    Mr. Main. I can tell you this. With regard to the question 
that was asked about the two sets of books, we can go ask the 
mine operator to produce books. It is not required to be 
legally maintained under the Mine Act. And they can say no.
    And what we do beyond that is what we are creative enough 
to do. We do not have the ability to demand those through such 
a subpoena power.
    Chairman Kline. The gentlelady's time has expired.
    Mr. Kelly?
    Mr. Kelly. I thank you, Mr. Chairman.
    Mr. Secretary, thank you for being here. I don't think 
there is anybody on the dais today that would question the 
desire to make sure that people were safe all the time.
    And unfortunately though, change doesn't usually take place 
unless there is a tragedy or a crisis. Now if I understand 
correctly, your inspectors have to have a knowledge in your 
policies and procedures of 4,500 pages of inspection.
    Is that right?
    Mr. Main. Probably more than that. But that is probably a 
fair number.
    Mr. Kelly. Okay.
    So how would you change what you have now? And I--listen, I 
understand about spending more money. But throwing money at a 
problem----
    Mr. Main. Right----
    Mr. Kelly [continuing]. Without having a definitive plan of 
how you are going to fix it, usually isn't a fix. It is just--
--
    Mr. Main. Yes----
    Mr. Kelly [continuing]. A waste of money. What would you do 
differently?
    What could you do differently?
    Mr. Main. Well, yes, what we are doing differently--here is 
the way I view life.
    I think that what has happened--and if you look at the 
number of the past tragedies, we have taken an inspection 
procedure and process that was pretty challenging for an 
inspector to do, and as a theory I use, we expect him to do 
1,000 things, they can do 750.
    And after Sago and after Jim Walter's and after Darby, 
after Crandall Canyon, there was a number of different policies 
layered on top of that.
    I think the investigation or the internal review team came 
up with about 200 since 2004 that was layered on.
    What I said back in July of 2010, I am not doing this. I 
put together a crew to go back. We are rewriting the entire 
manual from base zero. We are cleaning out a lot of the 
controversy.
    We are making sure that all these internal reviews, and all 
these accountability audits, get placed into there in a very 
clear and straightforward way, so an inspector knows exactly 
what they are supposed to do. And we can have a greater 
clarity.
    We have held up the completion of this until we are 
finished up the internal review, because I asked our folks go 
to the root of this. We have got to figure out what all the 
problems are here if we are going to fix them.
    Mr. Kelly. Yes.
    Mr. Main. So I can tell you that we are rewriting the 
entire inspection procedures----
    Mr. Kelly. Yes.
    Mr. Main [continuing]. To clean up, you know----
    Mr. Kelly. Yes, and I understand that. I have been through 
several mines back in the area that I represent. And I have got 
to tell you, part of the problem is--and I don't know the 
experience that the people that you have going on inspecting.
    But when people get cited for having a fluorescent light 
that is not the proper height above the desk, or not having a 
cover on a trash can, or not having two sets of chocks under 
truck wheels, and things like that----
    Mr. Main. Right.
    Mr. Kelly [continuing]. You start to wonder if it is really 
a loss prevention, if it is really a tragedy prevention.
    Sometimes we get to the point where we are placing too many 
things in the same level. Obviously, if I am understanding with 
Upper Big Branch that there were 48 citations, now, I know you 
don't have subpoena power, at least I am understanding that.
    What would your next----
    Mr. Main. Well then----
    Mr. Kelly [continuing]. Place would have been. I mean, I 
can't believe that if we know something is wrong, if we know 
these people are bad actors and if the people that work for 
them----
    Mr. Main. Yes.
    Mr. Kelly [continuing]. Are complicit in hiding things from 
mine inspectors----
    Mr. Main. Right.
    Mr. Kelly [continuing]. Then I don't know how you clear 
that up.
    I mean, again, it comes down to if people don't have that 
in their heart to stand up and do it. And the question about 
what are the whistleblowers----
    Mr. Main. Right.
    Mr. Kelly [continuing]. Protections?
    Mr. Main. Right.
    Mr. Kelly. But certainly, after 48 citations, somebody 
would have been able to go to somebody in the Department of 
Justice and say, we have got a bad actor. We have got to shut 
these folks down.
    Mr. Main. Easier than it seems.
    If you look at the history of the Mine Act up until Upper 
Big Branch, I can tell you the tool of choice for this agency 
was the 104(d) orders, which allowed them to quickly go in--
this is a company that didn't pay their fines. So fining them, 
you know, $1 million a day, and by the way, one longwall 
running off of Upper Big Branch in a shift produced about $750 
or $700,000. That is $2 million a day. So if you even give them 
a flagrant--I mean, that is--run that long wall, what, a fourth 
of the day.
    This was a company that did not pay its fines. This is a 
company that challenged the law. And----
    Mr. Kelly. But----
    Mr. Main [continuing]. And----
    Mr. Kelly [continuing]. But that is my point. If you know 
this is going on and they habitually do this--you have to be 
able to go to somebody up the ladder to say, listen, we have 
got to stop this. This is a bad actor that we have got to take 
out.
    Mr. Main. Today we have instituted a number of tools to 
target that. But I am going to tell you, we are not there yet.
    The tools that we are using is these impact inspections to 
deal with mine operators before they get too far out of 
control. The potential Pattern of Violations process that 
measures their--both their safety and their compliance record 
and puts them on a program, the potential Pattern of Violation 
Program.
    Those are two tools that I think have been very effective 
post UBB.
    But I will tell you, if you are still looking for that 
magic bullet, it is not there.
    And what we did was, a mine in East Kentucky, Freedom 
Energy, that had a record similar to Upper Big Branch, we went 
after them to try to create a tool which was out of Section 108 
Injunctive Action. It took us 3 months to get there.
    You know, so I think that we need to relook at creating a 
better tool that gives us a swift ability to go in, as you say, 
if we had looked at UBB today, what could we do to go in and 
shut them down when they are that bad.
    We still have a gap to get us there. We are using the 
impacts, the 104(d)s, the other enforcement tools.
    But we are still short.
    Mr. Kelly. Okay.
    Chairman Kline. The gentleman's time has expired.
    Mr. Kildee?
    Mr. Kildee. Thank you, Mr. Chairman.
    Mr. Main, I have been serving on this committee for 36 
years trying to make safety a more important issue for our 
miners.
    When I came on this committee 36 years ago, Carl Perkins, 
whom we affectionately called, Pappy Perkins, was chairman of 
this committee.
    And we had a hearing on mining safety. And I was shocked 
what I heard then. But I am shocked 36 years later of what is 
happening.
    I could recall the--one of the representatives of the mine 
owners testify how safe, and how safety was such a high 
priority in their mines.
    And you still get that same testimony from many of the 
owners who have come here. I can't think any who didn't.
    But I can recall one time the person went so far that Pappy 
Perkins, or Carl Perkins who was such a kindly gentle person, 
finally said, when I was a child my daddy put me on the back of 
a buckboard and took me over to the next hollow for the funeral 
of my cousin who was killed with others in one of your mines.
    That is 36 years later. And I feel that we should have made 
much more progress in 36 years. We fought wars in that time. We 
spent money here and there.
    But 36 years later I still hear the same stories and the 
same attitude very often of the owners of trying to get by as 
cheap as they can so they can make greater profits.
    What area should we strengthen to make sure that their 
banality, their stupidity, is brought into rein? Stronger 
regulation, a more stringent enforcement, greater penalties, 
where would you emphasize the greatest effort of this Congress 
in working with you to make sure that these people really put 
in mind the safety of their workers?
    Mr. Main. You know, I firmly believe that there are a 
number of mine operators in this country that do manage their 
systems to have systems in place to operate under the Mine Act.
    That doesn't mean that they always are totally successful 
with that. But I believe that, you know, many mine operators 
try to do what is right.
    And I believe that there are those that just do not. And I 
think if you take a look at our impact inspection list, mines 
that have shown up on a potential Pattern of Violations, those 
are showing you some of the mines that are operating outside 
the mainstream.
    Dealing with some of those mines--and I am just going to 
start down the list.
    I do believe that there needs to be more respect of the law 
and a greater fear of the penalties that exist to deter them 
from continuing to do the conduct that we are finding with the 
advance notice, and with some of these mines still operating 
without enough curtain up to control methane that could have 
another coal mine dust explosion.
    On a regulatory front, we have the list of recommendations 
from both the--acts investigation internal review team. We are 
going to take a hard look at to figure out what it is that we 
need to do better there.
    Administratively, I am going to tell you, we are doing a 
lot of things differently here to make sure that we have the 
best inspection agency that the miners should expect and money 
could buy. And there is going to be a lot of changes that we 
have already--that has been laid out in the internal review 
reports that we are working toward to correct.
    But at the end of the day, I think that, you know, the 
legislation that has been sitting here on the Hill, that has 
different pieces to address the issues we have talked about 
today is something that this Congress needs to take a look at.
    And I think too the issue that was raised here, we have got 
to be--you cannot undercut this staff and this agency to the 
point that you are scrambling with trainees trying to just get 
into mines, let alone inspect them. And expect to have a 
competent inspection program.
    And going forward, I think that is something that we really 
have to take a good look at----
    Mr. Kildee. And I say that I really think that through the 
lord is the beginning of wisdom. And I think that put a little 
fear that the government means business, that we just don't use 
ink.
    We put our spirit, our beliefs and the dignity of every 
human being when we write those laws.
    Chairman Kline. The gentleman's time has expired.
    Mr. Walberg?
    Mr. Walberg. Thank you, Mr. Chairman and thank you, Mr. 
Main, for being here.
    I would like to highlight an issue related to miner 
training cited in the internal review that seems startling to 
me.
    Now in my getting up to speed over the course of this past 
year, I have had the opportunity to view mining operations in 
North Dakota, surface mining. And I have had the opportunity to 
go 1,200 feet below Detroit and see the salt mines, which is a 
totally different ballgame.
    Look down 1,200 feet into an iron ore operation in 
Marquette, beautiful area of our state, and then to be with you 
in your home area, in fact to see your home. But in a coal mine 
800-900 feet below and eight miles back into that longwall.
    I know that I am not a miner. And I know you are a miner. 
And you understand that.
    And I know that you weren't around leading when this all 
happened.
    But as I look at the record, Upper Big Branch was operating 
under a petition for modification to permit mining through any 
oil and gas wells. The petition was granted, according to 
record, on October 16th, 1995.
    And the mine was required to submit a training plan 60 days 
after the petition became final.
    As I understand it, that plan would have included initial 
and refresher miner training requirements, so forth and so on. 
But the internal review found that the training plan was never 
submitted. And the requirements were never part of the mine's 
training plan when the explosion occurred.
    Director Main, how did that happen?
    Mr. Main. I think if you look at--one of the things that 
you will find in this internal review that you are not going to 
find in other internal reviews is really just looking back 
through everything that we could find that was wrong here to 
get it fixed.
    I don't think there is any other internal review that 
looked back beyond a couple of years.
    That was one of the things we asked the folks to go back 
and take a harder look, they found. In 1995 apparently, they 
didn't implement the plan. I mean, I think it is pretty much 
that simple from all the----
    Mr. Walberg. Did MSHA ever demand the plan? Did you find--
--
    Mr. Main. I don't think there is--I believe that somehow in 
1995 that provision was put in a petition modification. And 
apparently we could find no follow up to require the operator 
to do what--now I don't know if there is a plan put in place or 
not by the operator. But there is none that was incorporated 
that the----
    Mr. Walberg. That MSHA knew----
    Mr. Main [continuing]. They found.
    Mr. Walberg. I guess then moving forward, we don't live in 
the past. We look at the past to plan for the future.
    But I guess my question then comes to you.
    Does MSHA intend to undertake the comprehensive review of 
all mining plans to determine that this isn't a widespread 
problem? That what happened at Upper Big Branch, and the fact 
that this training wasn't done, requirement wasn't in place, 
and MSHA apparently didn't even ask for it, I mean, is that 
widespread?
    Are we worried that there are other mines operating right 
now who have a similar situation?
    Mr. Main. Well, the problem that I think that we face as an 
agency was that there was a lot of policies and procedures that 
was put in place. And I will use that along with the plans that 
somehow a lot of communication sort of broke down somewhere in 
the back years in this agency.
    And I think there are different reasons for that. One as 
far as policies, they did centralize the whole policy review 
process.
    On the training programs, we may or may not find others 
back in those years. But what we are trying to do is start from 
fresh and just identify everything that we can. We are training 
everybody to those things.
    As a matter of fact, the findings of the internal review 
team of the things that came out of it, we have already had a 
set through with all of our District 4 and District 12 staff 
and the district managers. And we are getting----
    Mr. Walberg. But are we looking for this problem right now? 
Even as we are training for it, are we looking for it that 
there might be some ready to explode?
    Mr. Main. As far as that kind of training plan, I will tell 
you we will go back and look to see if that is something that 
we are looking at right now.
    I know we are looking at a ton of things. And I will make 
sure that that is on the list of things that we are looking at.
    But one of the things I would like to say is that when I--
this is the first committee I have testified before when I 
became assistant secretary. I will never forget that.
    It is an awesome experience for those who have never had 
it, to take your first trip to the Hill.
    And, you know, when I was here, one of the things I was 
laying out is sort of like the path that I was going to take 
with this agency. And this was about, I think, what, 2 months 
before Upper Big Branch hit. It was in February of 2010.
    And some of the things that I had talked about at that time 
was the fact that the day I took this job, 55 percent of the 
MSHA inspectors that I had had 2 years or less inspection 
experience, and 38 percent of the metal and nonmetal inspectors 
that I had had less than 2 years or less of inspection 
experience.
    And one of the things that I decided to do fairly quickly 
was to bring in every one of our field office supervisors, set 
up a training program to train them on how to be a supervisor, 
because a lot of those had left as well and a lot of them were 
new, and to be able to manage the inspection enforcement 
program.
    We had complaints about consistency. And I think rightfully 
so, that was coming from The Hill. But to figure out a way to 
get quickly those who managed our whole enforcement program 
under control.
    We had that put in place and we had to actually--was 
kicking off the first training right as UBB struck.
    The second thing is to take a look at how we are training 
our folks and how we are identifying the core--the auditing. 
Are we doing enough self-audits in this agency to find the 
things like you are talking about.
    Chairman Kline. I am sorry. The gentleman's time has 
expired.
    Mr. Tierney?
    Mr. Tierney. Thank you, Mr. Chairman.
    I will just yield my time to the ranking member.
    Mr. Miller. Secretary Main, Mr. Kelly was discussing with 
you the fact that there were 48 shutdown D2 inspections, 
shutdowns of Upper Big Branch Mine.
    There are 52 weeks in the year. Forty-eight of those 
apparently ended up with the shutting down order at some point 
in this mine.
    And then he said to you, there must be something you can 
do. And you started to lay out the idea that you could go and 
seek and injunction. Which when you did it in the case of the 
Freedom Mine, it took you about 3 months.
    If this mine continued to operate under its consistent 
pattern, that would be another 12 violations roughly, that 
warrant an unwarrantable safety hazard and justify shutting 
them down.
    So that doesn't look like a very good remedy if you are a 
miner that you are going to get to spend another 3 months in a 
mine that has this track record, while you go to see if you can 
put together enough of a finding to have an injunction.
    Mr. Main. Yes.
    Mr. Miller. So once again, we are left here because of some 
glitch in the law, some failure to get from one point to the 
other.
    The miners are left in an unsafe condition--working in an 
unsafe condition.
    Mr. Main. I am here to tell everyone that we are using all 
the tools that we can amass under that----
    Mr. Miller. That is my worry. You have used all the tools--
--
    Mr. Main [continuing]. And----
    Mr. Miller [continuing]. You still can't get to the end of 
the story where an unsafe mine is either permanently shut down 
or something happens.
    Mr. Main. There is no silver bullet that we have in the 
Mine Act----
    Mr. Miller. I don't want a silver bullet, I want an 
effective tool.
    And you have made it very clear you are working very hard 
to see how you can piece together the authorities you have 
under the law.
    But it appears to me in your response that you can't get to 
where we would need to provide that protection because you 
don't have subpoena power in the case of cooking the books. And 
you don't have enough authority to keep a mine from racking up 
48 D2 citations.
    Mr. Main. There is a point of which we lack the ability to 
go in and shut down a mine because of its overall conditions. 
We can use all the tools as identified in the law to 
selectively, and with regard to the specific issue at hand, to 
take enforcement action.
    But I think what you are describing doesn't exist.
    Mr. Miller. You issued the results of your inspections. 
This was in January. And in the release here you refer to Coal 
Creek mining.
    And you said that the agency seems--secured and monitored 
the phones during the inspection, issued 32 citations, 12 
orders which subsequently shut down the mine.
    MSHA issued an imminent danger order when an inspector 
observed a coal pile five feet high, 10 feet in diameter on 
fire approximately 23 feet away from explosive storage magazine 
outside the mine.
    Mr. Main. That is the conditions they found.
    Mr. Miller. That is the conditions they found. In that case 
when you secured the phones, did you have the finding of prior 
notice or not?
    Mr. Main. On that one, I am not sure. I would have to go 
back and take a look at.
    Mr. Rahall. Would the gentleman yield?
    Mr. Miller. But we have an inherently dangerous process 
going on here.
    And somehow we can't get to the remedy.
    Mr. Main. Yes.
    Mr. Miller. Because you just keep going through shutting 
down, opening up, shutting down, opening up, shutting down, 
opening up, and you continue to find these unwarranted hazards.
    Mr. Main. Yes.
    I believe that there is a mine that I identified in the 
testimony that I presented. It was a mine that we did a number 
of impacts inspections at. I think about seven.
    Mr. Miller. Okay.
    I will yield to Mr. Rahall.
    Mr. Rahall. Very quickly in response--to follow up on the 
gentleman's question.
    Could the operator of this mine shut it down? Could Mr. 
Blankenship have shut it down?
    Mr. Main. Mr. Blankenship could have shut this mine down 
any moment that they decided to do it. They could have decided 
not to have provided advance notice of the inspections 
underground to the mining operator, or to the mining personnel, 
so we could have had a fair view of the conditions that are 
there.
    But yes, we all have to understand, it is a mine operator's 
responsibility to run these mines safely and to have them in 
place, programs and procedures to protect the miners.
    Many of them do every day of the week. Some don't. And some 
like Upper Big Branch really the miners pay just a hell of a 
price, excuse my French, whenever they don't.
    Mr. Miller. So whatever number, but you point out, whatever 
number of shifts that mine operator, that irresponsible mine 
operator, can get in between the next shut down, in this case 
you said you thought it was worth about $700,000 a shift to run 
the longwall.
    Mr. Main. Well let me just say this----
    Chairman Kline. The gentleman's time has expired.
    Mr. Rokita?
    Mr. Rokita. Thank you, Mr. Chairman, and thank you, Mr. 
Main, for being back here today.
    I want to focus on the internal review. And it seems like 
the tone and breadth of that document almost intentionally 
focused on District 4, almost shielding headquarters from any 
culpability in this. I mean it is not until page 193 that the 
report even speaks directly to headquarter deficiencies.
    Do you have a comment on that?
    Mr. Main. Well, I think the way policy is constructed, it 
has the focus of the investigation basically starting with the 
mine and working itself back.
    And this is a process that has been in place, I think, 
since about 1992 in terms of the process for conducting----
    Mr. Rokita. Yes. The problem, I am seeing and reading in 
the report though is that with the sheer magnitude of the 
identified shortcomings, it can't be limited to just District 
4.
    And before this happens again----
    Mr. Main. Yes.
    Mr. Rokita [continuing]. Like the other tools that you said 
you are starting to use, I would advise and ask that you look 
into restructuring how you are doing these reports.
    Mr. Main. We will. I think that is a valid recommendation. 
And I think some of the findings from the report itself, some 
of their findings from the NIOSH report, really gives us an 
understanding.
    We really need to go back and retool the way that we do 
internal reviews
    Although having said that, I think that the internal review 
team was instructed to go overboard in terms of not being 
restricted to the balance of that. And really figure out what 
went wrong here.
    Mr. Rokita. Thank you.
    Also on page 66 of the report, it states, quote--``the 
decision not to pursue 1610(c) investigations at UBB was driven 
by resource considerations rather than the merits of the 
case.''
    Were you aware of this? Was headquarters aware that that 
was the reason that this happened?
    Mr. Main. Well, I doubt if they were because basically what 
happens is the district inspectors would be the ones would 
normally identify the cases. They would then transfer that 
information over to the special investigations branch.
    The special investigations branch then would assess those 
and deal with the district in terms of what their 
recommendations were.
    Mr. Rokita. So you don't know.
    Mr. Main. I don't know how far, but I just sort of believe 
that what was happening was there was determinations made about 
what they could or couldn't handle.
    And keeping in mind out of all six of those, I think it was 
a thorough review, the internal review found that six of those 
was notorious. I am not sure then on a normal day that the 
district staff would have really identified all six of those.
    But in this particular case, I am not sure that they went 
beyond the discussions between----
    Mr. Rokita. Thank you.
    This hearing focused on some short-term inexperience. And I 
want to say that on page 78 of the internal review there 
appears to be an 11-year gap between an agency requirement of 
the operator that new elements be included in the training 
plan.
    And these were never included. And the agency failed to 
notice this during an 11-year period.
    So it seems to me this is more than just near and short-
term inexperience.
    Mr. Main. Yes, I think that there is a lot of things that 
played in--it is just like the 1995 plan. I can't explain why 
that was not, you know, implemented.
    Some of the things that----
    Mr. Rokita. It just seems the headquarters and the district 
missed some of this for far too long.
    And again, I would appreciate going through--I used to 
run--I used to be a regulator. I used to be running one of--
you--not in the coal industry, but for other industries.
    Mr. Main. Yes.
    Mr. Rokita. And these would be warning signs to me to go 
back and review processes.
    Mr. Main. Yes.
    Mr. Rokita. Let me yield the rest of my time to Mr. 
Walberg.
    Mr. Main. Okay.
    Mr. Walberg. I thank the gentleman.
    Going along that train here, assuming the fact that--or 
knowing the fact that we had a bad actor and operator of that 
mine, who may indeed have covered certain things so that your 
inspectors couldn't see them, yet the internal review found 
many instances where MSHA inspectors observed serious problems, 
but did not issue a citation.
    For example, District 4 personnel inspected the tailgate 
entry of the longwall on four occasions, but never cited Massey 
for failing to install the required level of roof support.
    And on page 83, the panel concluded, and I quote--``with 
the proper quantity of air there would not have been the 
accumulation of methane, thereby eliminating the fuel sources 
for the gas explosion.''
    My question is how can we be confident inspectors are going 
to find these failures in the future?
    Mr. Main. Yes. I think with regard to both of those, I 
provided some insight of those a little bit earlier.
    On the tailgate issue, there is actually only one 
inspection that took place involving the roof supports. The 
other inspectors who were there is over a 3-day period when 
they went in and shut down--that was a--I don't know if you 
caught that part of the story or not.
    But when the inspectors arrived at the mine site with the 
carload of inspectors, went underground and issued a closure 
order over the ventilation system. And that is what they were 
there looking at. Then trying to deal--and they had the mine 
down actually for 3 days over a ventilation issue.
    So, you know, those were not all--I think there are some 
differences about what may have been in the internal review 
report and what was in the other report.
    As far as the----
    Chairman Kline. The gentleman's time has expired.
    Mr. Rahall?
    Mr. Rahall. Thank you, Mr. Chairman. I appreciate your 
courtesies and that of the ranking member in allowing me to be 
part of this panel today.
    The UBB mine does sit in my congressional district, in 
fact, in my home county. So the disaster that occurred on April 
5th, 2010 hits very close to home on multiple fronts.
    Beyond knowing with certainty, as we now do, what caused 
that tragedy, I do ask for two things of this committee.
    First, that the committee look responsibly at what the 
Congress should do to prevent another UBB. And then just do it.
    If that means legislation, and I believe it does, then 
legislation should be passed.
    I do not excuse MSHA's failures, but the Congress should 
not withhold effective lifesaving legal authorities from the 
agency as some kind of penalty. Because ultimately the only 
people penalized by that cockeyed approach will be our miners.
    Second, I ask that whatever action is taken ensures that 
bad actor company executives, and they are a very minute 
minority, who make the decisions and set the policies that lead 
to tragedies like UBB, are no longer able to hide from the law 
or to exploit the weaknesses of MSHA, as the gentlelady from 
California, Ms. Woolsey, referred to earlier.
    The families of miners are sick of watching lower level 
employees take the fall for upper management. In the case of 
UBB, investigation witnesses have testified that Massey CEO, 
Don Blankenship, and members of top management, received 
reports as often as every 30 minutes or more of every day, of 
every day of the week, about the production at that mine.
    What happened at UBB is absolutely criminal. And the 
Congress should do everything in its power to stop the 
protection, in fact the reward, of this kind of sick profit 
over people behavior.
    Indeed in response to numerous questions, especially from 
the majority side, about why MSHA didn't shut down this mine, 
Mr. Don Blankenship himself could have shut down the mine at 
any moment, quicker than any government entity or any person on 
the face of the earth.
    None of us ever want to see another disaster like UBB 
happen again.
    And with that stated, I do have a question that I would 
like to ask Mr. Main. And perhaps it is a follow up to the 
previous question.
    But investigation after investigation points to the fact 
that MSHA does need more staff. We know that it was a 
systematic problem that occurred with MSHA. You do need more 
highly trained staff, and that the existing staff is often 
spread too thin trying to address too many needs.
    In southern West Virginia, you have split the former 
District 4 largely to address these kinds of problems creating 
District 12 in June of last year. And I understand that both 
districts are--or neither district rather is fully staffed, 
though MSHA is working toward that.
    This concerns me. And I would like to know, Mr. Main, what 
MSHA is doing to ensure that both of these districts are fully 
staffed and that we have sufficient number of specialists to 
review technical issues like ventilation?
    And what resources does the agency need to make sure that 
both of these district offices are functioning at an optimal 
level and that we are able to retain employees with sufficient 
experience?
    [The statement of Mr. Rahall follows:]

  Prepared Statement of Hon. Nick J. Rahall, II, a Representative in 
                Congress From the State of West Virginia

    Thank you, Chairman Kline and Ranking Member Miller. I appreciate 
the courtesies extended to me by the Committee.
    The Upper Big Branch Mine sits in my District, in fact, in my home 
county. So the disaster that occurred on April 5, 2010, hit very close 
to home in multiple respects.
    Beyond knowing with certainty--as we now do--what caused that 
tragedy, I ask for two things.
    First, I ask that this Committee look responsibly at what the 
Congress should do to prevent another UBB, and then do it. If that 
means legislation--and I believe it does--then legislation should be 
passed. I do not excuse MSHA's failures, but the Congress should not 
withhold effective, life-saving legal authorities from the agency as 
some kind of penalty, because, ultimately, the only people penalized by 
that cockeyed approach will be our miners.
    Second, I ask that whatever action is taken ensures that bad-actor 
company executives, and they are a minority, who make the decisions and 
set the policies that lead to tragedies like UBB are no longer be able 
to hide from the law. The families of miners are sick of watching lower 
level employees take the fall for upper management.
    In the case of UBB, investigation witnesses have testified that 
Massey CEO Don Blankenship and members of top management received 
reports as often as every 30 minutes or more, every day, about the 
production at that mine.
    What happened at UBB is absolutely criminal and the Congress should 
do everything in its power to stop the protection--in fact, the 
reward--of that kind of sick ``profit-over-people'' behavior.
    Mr. Chairman, I NEVER, EVER want to see another disaster like the 
one at Upper Big Branch, and at other mines across my home state in 
recent years.
                                 ______
                                 
    Mr. Main. Thank you, Congressman.
    I think--we split the district about June, I believe, of 
last year.
    Mr. Rahall. Right.
    Mr. Main. And actually we moved into the MSHA academy, we 
are looking for office space to move into so we can expand.
    We are probably going to be taking over more and more of 
the academy space. But Kevin Stricklin is on tap to figure 
out--we have got a number that we are moving to. We are ramping 
up. We are finding space for those.
    And we still have a ways to go, as you said, to move some 
more folks in there to get where we want to be. And we are 
providing additional support from the outside to get there.
    But I would hope by within the next 3 to 4 months that we 
have that--both of those districts ramped up to where we have a 
full complement of staff.
    It is still--so this is staffing within MSHA. There are 
people bidding in from other areas coming in.
    We have moved some folks from District 4 into District 12. 
But this will be staffed up with the--I think more experienced 
folks than we had before.
    One of the benefits of the hiring in 2007-2008 was--the 
crew that we brought in was probably some of the most 
experienced mining people that we have. I think about an 
average of about 15 years mining experience.
    So that is the benefit we have as we get the procedures 
trained into them as far as the agency requirements. But we are 
moving quickly to try to get that fully staffed.
    Mr. Rahall. Okay.
    Let me ask one last question.
    Earlier you mentioned that rock dust samples were taken out 
of the UBB mine on March 15th----
    Mr. Main. Right.
    Mr. Rahall [continuing]. Taken to a lab----
    Mr. Main. Right.
    Mr. Rahall [continuing]. And that the report from that lab 
was not back until post UBB----
    Mr. Main. Right.
    Mr. Rahall [continuing]. Disaster. Why the lag time? And is 
there still a lag time in such analysis of report----
    Mr. Main. When I took this job, I got a lot of surprises. 
And one of those surprises was we had a lab that handled the 
rock dust sampling that was actually under a district, which is 
actually not a national lab, under District 4 control.
    And it was a lab that was actually one of the 
responsibilities of the district itself.
    What we did is we have pulled that lab out. It is now a 
national lab. We have staffed it up. We have put more resources 
in in terms of the sampling equipment. And we are doing much 
faster sampling now.
    One of the things that was going on with the samples was a 
bit of a delay at that time was that they were doing some 
experimental research with the CDEM device that is being 
developed to try to figure out. That is going to be a quick 
tool to be able to quick sample.
    So that was part of the delay that was involved in that.
    Mr. Rahall. Will we ever get----
    Chairman Kline. The gentleman's time has expired.
    Dr. Bucshon?
    Mr. Bucshon. Thank you, Secretary Main for being here 
today.
    And I grew up in a coal mining community. My dad was a 
United Mine Worker for 37 years. And any time a disaster like 
this happens, it hits close to home because basically everyone 
I grew up with and everyone I knew were coal miners.
    So with that, I am interested in finding out, you know, it 
says in the internal review that the abatement time for the one 
respirable dust citation was 33 days when the allowable 
standard is 7 days.
    Why is MSHA setting abatement deadlines weeks beyond what 
was allowed?
    Mr. Main. I think one of the things that we found from the 
internal review was two things.
    One is that the mining company was abusing the system, and 
that we were not doing enough to keep up with the system. And 
some of those delays I don't think should have been in place.
    I think that there was extensions----
    Mr. Bucshon. Who makes the final decision on that?
    I mean, it probably doesn't come to the secretary's 
office----
    Mr. Main. Well----
    Mr. Bucshon [continuing]. I mean, where does that--say you 
have an inspector, they are in the mine. They say this is a 
problem. It goes--run me through the track and where the buck 
stops.
    Mr. Main. Yes. There are over 14,000 mines we inspect; on 
the coal side, about 2,000. So yes, sometimes things are slow 
getting all the way to the top.
    But if you look at the administrative process, the 
inspector does the action at the mine. It goes to a field 
office supervisor who does the review. He goes up to a higher 
level supervisor, up to administrative----
    Mr. Bucshon. Can I answer----
    Mr. Main. Sure.
    Mr. Bucshon. Why does it go to a higher level supervisor?
    I mean we have known--I mean it seems to me that that may 
be part of the issue is that if you go--the more people--it is 
like we are playing telephone when you are a kid.
    I mean, the more people you have----
    Mr. Main. But----
    Mr. Bucshon [continuing]. In the system, it is going to 
leave more places where the ball can be dropped. I mean----
    I am sorry to interrupt----
    Mr. Bucshon. Yes.
    Mr. Main [continuing]. But you got up to another level of 
supervisor----
    Mr. Bucshon. Yes.
    Mr. Main [continuing]. And then--but I think, you know, 
there are different--we have a health wing and the--in the 
districts. They are responsible for oversight of the health 
issues.
    And you have an inspector who as part of their job 
inspecting deals with the occupational health issues. That 
inspector has to report to the field office supervisor, the one 
I said we just brought in----
    Mr. Bucshon. Yes.
    Mr. Main [continuing]. And trained them all.
    But also to review the health things to make sure that we 
are doing our job, there is a health supervisor that takes a 
look at the health related things, which I think is a critical 
part of our operation.
    Somehow there was a breakdown that that did not get taken 
care of the way that it should. And that is something that we 
are taking a strong look about how we revamp not only the 
supervision of our field offices, but our whole agency to make 
sure that we are fixing those kind of problems.
    But yes, there was something, I agree, that was a problem.
    Mr. Bucshon. Yes, and my point, I guess, was that I am not 
expecting every decision like these to go to the secretary of 
MSHA, you know. I mean, in every organization there has to be a 
point where the buck stops.
    And it seems to me that, you know, the more points--the 
more bureaucratic----
    Mr. Main. Right.
    Mr. Bucshon [continuing]. Your system, the more chance 
where you are going to have to lose--drop the ball.
    Now I also want to ask, NIOSH also found that MSHA 
essentially has repeated the same failures and shortcomings in 
each of the most recent mine disasters. And so my question is 
that--and I know you are taking a lot of action. And I 
appreciate that.
    But I really need to know what MSHA, you know, what 
ultimately is going to stop us from not learning from our 
mistakes----
    Mr. Main. Right.
    Mr. Bucshon [continuing]. And what is going to fix this 
problem?
    I mean if you were to identify a few things that you would 
need to ultimately fix this issue, what would that be?
    I mean, we are having--we can't continue to do the same----
    Mr. Main. Right.
    Mr. Bucshon [continuing]. Things over and over again. And 
every time have congressional hearings and say, here is where 
our mistakes were if we haven't fixed it.
    Mr. Main. And I agree with that.
    I think that is the reason that we have said as far as 
inspectors are going back and just rewriting the entire policy 
manual to clean up some of the lack of clarity, the cross 
directions that was in it, the lack of direction.
    And also to make clear the things that we found in these 
internal reviews and audits are clearly stated in these 
policies. And what we do is have a check system that is 
effective in checking those.
    I think what happened in the past, you have an accident. 
You have internal review. You would have a bunch of policies. 
You just keep piling them on to the point that the wagon, the 
wheels broke on the wagon.
    And I think that is the core of trying to fix, as a 
starting point, fix the problem. Go back and rebuild the wagon.
    Mr. Bucshon. So the internal review is good. But that is 
after it has happened.
    So what--you know, proactive--I mean there are two ways to 
manage----
    Mr. Main. Right.
    Mr. Bucshon [continuing]. Things either proactively or 
reactively.
    Mr. Main. Right.
    Mr. Bucshon. And it seems like MSHA continues to manage 
things in a reactive fashion rather than a proactive----
    Chairman Kline. The gentleman's time has expired.
    Mrs. Capito?
    Mrs. Capito. Thank you. I would like to thank the chairman 
and the ranking member for letting me participate in the 
hearing today.
    Good afternoon, or good morning still, Mr. Main.
    I thank you for your service to our country and our state 
and to the beloved miners that I know that you care about quite 
a bit.
    So I would like to also thank the committee for coming to 
Beckley. I think that was a really enlightening hearing that we 
had there.
    There is no question the mine operator put production above 
safety every single day, resulting in a huge tragedy at UBB.
    But if we go back to 2006, we had a huge tragedy in my 
district, Mr. Rahall. Unfortunately, UBB is in his district. 
Sago was in my district. We lost a lot of miners there.
    That is what this chart is all about here. Because the 
resources were really upped in terms of the numbers of 
inspectors that were hired post Sago, correct?
    I mean that was the reason----
    Mr. Main. Correct. Yes----
    Mrs. Capito [continuing]. The resources were put in.
    But then you and I attended a--and help me with my memory 
here. We attended a reception in Charleston at the Charleston 
Civic Center. I think it was at the end of 2009 where we were 
celebrating that that had been the safest year.
    Is that correct? Was it 2009?
    Mr. Main. 2009, yes it was the safest year in the entire 
mining industry.
    Mrs. Capito. And then 4--3\1/2\ months later----
    Mr. Main. Yes.
    Mrs. Capito [continuing]. The most devastating tragedy in 
40 years.
    I remember at that time you talked a lot about vehicle 
accidents and most of the lives that were lost were 
carelessness with operating the vehicles.
    I wouldn't say that you had taken your eye off the ball, 
but have you reshifted? Obviously, you have reshifted your 
resources, I would think, towards the life threatening massive 
kinds of things that could occur in a mine, and did occur on 
that tragic day.
    What have you done since then to reprioritize since that 
meeting we had in 2009?
    Mr. Main. Well, I think there were things that we were 
working on at the time that we have had a chance to get on 
track.
    One of them is our--it is a program we don't talk much, but 
the ``Rules to Live By''. I am a firm believer that really we 
really have to stay focused on the things that most apt to take 
a miner's life.
    And the Rules to Live By that I kicked off, I think, in 
January 2010 was aimed at targeting in as we do our 
inspections, and to educate the mining industry on the most 
common causes of mining deaths.
    We just launched ``Rules to Live By'' version III which dug 
a little bit deeper into the cause of fatalities and ``Rules to 
Live By II'' deals with the catastrophic kind of fatality.
    So we are paying attention as an industry to those.
    And then the last gentleman that raised the question, we do 
need to do things differently.
    And some of the things we started off right at the time we 
were speaking, as well as the thing that worried me when I took 
this job most of all, when I saw that 55 percent of my 
inspectors had 2 years or less, growing up in this mining 
industry is something that got my attention.
    And one of the places I thought we needed to start the 
quickest is to get a control over the management of our whole 
system was to bring in all of our field office supervisors, 
retrain them, make sure they knew how to manage the programs, 
make sure they knew what they need to focus on.
    And to make sure that they understood some of the 
deficiencies of these past audits and the reviews have found.
    Unfortunately, we were just starting that at the time of 
UBB. But things like that that I think are critical, and then 
taking a look back at some--a better targeting or finding out 
who the bad actors are in this industry.
    Mrs. Capito. Right. I don't mean to interrupt you, but I 
have only got 5 minutes.
    I just want to give you a chance to clarify this. It showed 
that there was a complete--excuse me--a computer glitch that 
prevented this particular mine from going into the Pattern of 
Violation which is obviously a category in which closure would 
be more readily available as an enforcement mechanism.
    I am going to give you a chance to say have you fixed this 
computer glitch?
    Mr. Main. It got fixed pretty quick. We found it. We fixed 
it.
    And we actually spent a lot of quality time with the 
Inspector General's Office, quite frankly, with a lot of help 
from them to have them look around and see if we had anything 
else that was a problem.
    This was a program that unfortunately, the Mine Act went 
into effect in 1977. This program was put in effect, I think, 
in 2007. And the folks who were putting the data in failed to, 
I guess, put in certain data--a certain category. But that was 
fixed.
    Mrs. Capito. Let me just say, finally too, in terms of the 
inexperience of inspectors, I mean, we can't fast forward the 
clock here. We can't give somebody 2 more years of experience.
    So we have got to make sure----
    Mr. Main. Right.
    Mrs. Capito [continuing]. The training and experience that 
they get right now assures those miners that are right there 
now, that they are not going to overlook or oversee.
    These two reports have shown that there were some lack of 
enforcement or lack of knowledge, or too much complexity as to 
what the actual mine inspector was actually asking to do.
    But I want to be assured when I leave this hearing today 
that the inspectors that are there now, regardless of the years 
of experience, do have this depth of experience that they need 
to have.
    Mr. Main. All right----
    Mrs. Capito. And my time is up.
    Chairman Kline. The gentlelady's time has expired.
    I want to thank Secretary Main for being with us today. 
Your patience and forthright answers are very helpful----
    Mr. Holt?
    Chairman Kline. You are recognized.
    Mr. Holt. Thank you very much, Secretary Main.
    It seems to me the key question that we come back to is 
whether there are teeth. Whether the sanctions are so minor 
that--I mean, M-I-N-O-R, that the poor performers have very 
little incentive to clean up their acts.
    What--forgive me if I am retreading ground that you have 
already been over. But it seems to me it is the key question.
    What do we need to do legislatively to strengthen the 
sanctions?
    Mr. Main. I think--I have talked about a number of this 
today. I think they are contained in legislation that was 
already reported as a body.
    And it deals with things that I think are very fundamental.
    One is, you know, giving miners better protection to be 
able--for them to be able to speak out. I believe that those 
mine operators are flaunting the law given the best tools we 
are throwing at them. And given the use of--our actions to curb 
things like advance notice that some still don't get it, that 
we need to deal with.
    Mr. Holt. But the State of West Virginia has done that, I 
guess. But this needs to be done at a federal level, I believe. 
Is that----
    Mr. Main. Yes, I think there are more tools that we need to 
effectively do our job. Yes.
    Mr. Holt. Okay.
    Well, I want to thank you for your work. Some might ask why 
would a representative from New Jersey be involved in this.
    And as I think you know, I grew up around miners. I really 
respect the work they do. And it is really criminal the way 
they have been treated.
    So I want to make sure that those who engage in criminal 
behavior are treated like criminals. And we have to make sure 
that the sanctions are real and felt.
    So I thank you very much for your work----
    Ms. Woolsey. Will the gentleman yield?
    Mr. Holt. I would be happy to yield.
    Ms. Woolsey. Thank you.
    Joe, you are about ready to leave here. Could you 
succinctly tell us what legislation we have to pass to make a 
difference to the miners? Because we can't just clear up 
bureaucracy----
    Mr. Main. Right.
    Ms. Woolsey [continuing]. Because we are going to be right 
back where we started because the bad actors are not going to 
change.
    What is missing in this picture?
    Mr. Main. Well, yes, I am going to start with one of the 
things that we have said, there are a lot of things that we can 
do better and we need to. And we are. We are----
    Ms. Woolsey. But I am talking about us.
    Mr. Main. Yes. But I am just like working up the ladder to 
the point that, there are a lot of things we are undertaking to 
fix. We are looking at regulatory improvements out of Upper Big 
Branch.
    But even with those, at the end of the day, there is still 
those things that are left that we do not think that we have A, 
the current tools to fix, nor the ability to fix them.
    And that is to figure out a way to give miners a better 
voice. That is to have a law that has respect where the 
criminal sanctions are one that really deters bad behaviors, 
that gets the bad folks acting like the good folks out there, 
ways that we can get information, and ways to make sure that we 
are fully effective--enforcing the law.
    Ms. Woolsey. So how important is subpoena power?
    Mr. Main. I would just say that in West Virginia, if it 
hadn't been for UBB, we would not have been able to even ask in 
a legal way, or demand in a legal way, people to come even 
answer questions.
    Ms. Woolsey. But we----
    Mr. Main. We had to go to West Virginia.
    Ms. Woolsey [continuing]. Do we even need to make that 
possible for you, for MSHA?
    Mr. Main. That was in the past legislation as something 
that we supported then. And I don't think anything has changed.
    Mr. Rahall. Would the gentlelady yield?
    Ms. Woolsey. Yes.
    Mr. Holt. For both I believe I have the time that I----
    Yield. Sorry.
    Ms. Woolsey. I would be happy to yield to my friend from 
West Virginia----
    Mr. Rahall [continuing]. Quick question for both 
investigations and inspections, subpoena power?
    Mr. Main. You have to be able to get the facts regardless 
of what the issue is if you want to get the facts to whether it 
is an investigation or an accident.
    Because if you don't get the questions that could be a 
problem in an investigation. You may not prevent an accident 
that you want to investigate later.
    So yes.
    Mr. Rahall. Thank you, Mr. Secretary. Thank you, Mr. 
Chairman.
    Chairman Kline. Thank the gentleman.
    And now, Mr. Secretary, thank you very much for being with 
us today. We appreciate your patience.
    We will, I will ask the second panel to come forward now 
please.
    Mr. Main. Thank you, Mr. Chairman.
    Chairman Kline. It is my pleasure to introduce our second 
distinguished panel of witnesses.
    Mr. Howard Shapiro is Counsel to the Inspector General at 
the Department of Labor. Mr. Cecil Roberts is president of the 
United Mine Workers of America. And Dr. Jeffery Kohler is a 
director in the Office of Mine Safety and Health Research with 
the National Institute for Occupational Safety and Health.
    Before I recognize each of you for your testimony, I will 
just remind you of the lights. I know all of you have been 
here.
    We have got a green light, a yellow light, and a red light. 
The green light will indicate that you have 5 minutes. The 
yellow light, you have 1 minute. And the red light we would ask 
you to wrap up your testimony.
    Your entire written testimony will be included in the 
record. So you can summarize if you would like.
    With that, we will start with Mr. Shapiro.
    You are recognized, sir.

STATEMENTS OF HOWARD SHAPIRO, COUSEL TO THE INSPECTOR GENERAL, 
U.S. DEPARTMENT OF LABOR; CECIL EDWARD ROBERTS, JR., PRESIDENT, 
 UNITED MINE WORKERS OF AMERICA; DR. JEFFERY KOHLER, DIRECTOR, 
 OFFICE OF MINE SAFETY AND HEALTH RESEARCH, NATIONAL INSTITUTE 
               FOR OCCUPATIONAL SAFETY AND HEALTH

                  STATEMENT OF HOWARD SHAPIRO

    Mr. Shapiro. Thank you, Mr. Chairman.
    I will summarize my written statement that has already been 
provided.
    Is it on now? Okay.
    Thank you, Mr. Chairman. Thank you for inviting me to 
testify this morning with respect to the OIG report on 
allegations of retaliation and intimidation related to the UBB 
accident investigation.
    In March of 2011, we received a complaint from the United 
Mine Workers of America alleging that attorneys for Performance 
Coal and the attorneys for MSHA were holding private meetings 
to discuss important issues, and that they were inappropriately 
making deals, which in some cases resulted in vacating safety 
citations and orders.
    Subsequently in April, we received a complaint from an 
attorney for Performance Coal, representing Performance Coal, 
alleging misconduct by Norman Page, who was heading up the UBB 
accident investigation for MSHA.
    What the OIG decided to do was to address both of these 
complaints by looking at five separate incidents that were 
cited in the Performance Coal complaint, one of which was also 
referenced in the UMWA complaint.
    The first incident involved MSHA's issuance of a safety 
order and citation to Dr. Christopher Schemel, who was one of 
Performance's expert consultants. And the order and citation 
would have required him to withdraw from the mine until he 
received 40 hours of new miner training.
    What we found was that Mr. Page was not the impetus for 
this action. And that he was only marginally involved in it.
    The second incident involved another order and citation, in 
this case, issued to another consultant, Dr. Pedro Reszka. And 
this order and citation required--would have required Mr. 
Reszka, or Dr. Reszka, to withdraw from the mine until such 
time as he could receive some refresher safety training.
    In this case, Performance Coal alleged that the order and 
citation were issued in retaliation for a complaint which they, 
Performance Coal, had filed regarding an incident which took 
place in the mine and involved Dr. Reszka.
    Again in this case, we found that the citation and order 
were not issued as a result of any retaliation by Mr. Page or 
anybody at MSHA. It was issued as the result of the personal 
observations of several MSHA inspectors regarding Dr. Reszka's 
conduct and behavior in the mine.
    And I would note that this was the order and citation that 
was also cited by the UMWA in their complaint to us, albeit 
from a very different perspective.
    The third incident involved a meeting between Mr. Page and 
Dr. Schemel to discuss the Reszka citation and order. And that 
took place because Dr. Reszka was a subcontractor for Dr. 
Schemel.
    During this meeting, Mr. Page allegedly threatened Dr. 
Schemel with further citations and orders, and other negative 
effects on his company, if he did not accept the citation 
issued with respect to Dr. Reszka.
    We found that Mr. Page did not intend to retaliate against 
Performance Coal or Dr. Schemel during this meeting.
    The fourth incident involved MSHA's scheduling of an 
inspection of the mine rescue station that serviced the UBB 
mine. We found that the decision to schedule the inspection by 
two District 6 inspectors who were unaware that a recent 
inspection of the rescue station had already been done by 
District 4.
    When they learned of this recent inspection, they cancelled 
the inspection that they were going to do. So again, we found 
no evidence of retaliation.
    And the fifth incident involved MSHA's issuance of another 
order banning another employee of another consultant from 
entering the mine until he received new miner training. And 
again, we found that Mr. Page was not involved in the decision 
to issue the order and citation in this case.
    So in summary, Mr. Chairman, our review of these five 
incidents did not substantiate the allegation that Mr. Page 
engaged in any sort of pattern of intimidation or retaliation, 
and nor did we find that MSHA, as an entity, engaged in such a 
pattern at Mr. Page's behest or otherwise.
    However during our review, we did identify three 
questionable management actions.
    One of these was that the ultimate decision made by 
officials from MSHA and the Office of the Solicitor to vacate 
the citation and order related to Dr. Reszka was made not based 
upon the safety merits, but rather was made to avoid an 
appearance of retaliation and to avoid possible congressional 
scrutiny.
    In response to our report, the department generally agreed 
with our findings and stated that MSHA decided to vacate the 
citation and order related to Dr. Reszka on the condition that 
he receive additional safety training, which he did.
    So in conclusion, Mr. Chairman, I would reiterate that our 
primary objective was to review the allegations against Mr. 
Page. We did not substantiate those allegations.
    And I would certainly be pleased to answer any questions 
that you may have or any other members of the committee.
    [The statement of Mr. Shapiro follows:]

   Prepared Statement of Howard L. Shapiro, Counsel to the Inspector 
     General, Office of Inspector General, u.s. Department of Labor

    Good morning, Mr. Chairman and Members of the Committee, I 
appreciate the opportunity to discuss the Office of Inspector General's 
(OIG) report of inquiry regarding allegations of retaliation and 
intimidation related to the Upper Big Branch (UBB) accident 
investigation.
    As you know, the OIG is an independent entity within the Department 
of Labor (DOL); therefore, the views expressed in my testimony are 
based on the findings of my office's work and not intended to reflect 
the Department's views.
Background
    Following the April 5, 2010, underground explosion at the UBB mine 
in West Virginia, the Mine Safety and Health Administration (MSHA) 
initiated an investigation into the causes of the accident. At the time 
of the explosion, Performance Coal Company operated the UBB mine as a 
subsidiary of Massey Energy Company.
    On March 16, 2011, the OIG received a complaint from the United 
Mine Workers of America (UMWA) alleging that the attorneys for 
Performance Coal, and the attorneys for MSHA in the DOL's Office of the 
Solicitor (SOL), were excluding other parties involved in the 
investigation by holding private meetings to discuss ``issues of 
importance to the investigation.'' The complaint also alleged that 
MSHA's attorneys in SOL were inappropriately ``making deals'' with 
Performance Coal attorneys, resulting in MSHA vacating legitimate 
safety citations and orders. In a subsequent phone call, UMWA clarified 
that this allegation had to do specifically with MSHA's attorneys in 
SOL forcing MSHA to vacate a citation and order involving Dr. Pedro 
Reszka, one of Performance Coal's expert consultants for the accident 
investigation.
    On April 29, 2011, while we were reviewing the UMWA complaint, we 
received a complaint from an attorney representing Performance Coal. 
This complaint alleged that MSHA's District 6 Manager, Norman Page, who 
was leading the accident investigation for MSHA, had engaged in 
misconduct by launching a campaign of intimidation and retaliation 
against the company's accident investigation team and, in particular, 
its expert consultants. The complaint alleged that Mr. Page had 
repeatedly ordered the withdrawal of the company's scientific experts 
from the mine without a good faith basis; attempted to intimidate the 
company's experts with retaliatory citations and orders; and threatened 
future retaliatory orders against one of the company's experts in an 
attempt to influence the expert's work product and opinions.
OIG's Review
    The OIG decided to address these two complaints by looking at five 
incidents referenced in the Performance Coal complaint, of which one 
was also referenced in the UMWA complaint, albeit from a different 
perspective. The OIG's Office of Legal Services reviewed pertinent 
documents, and conducted in-person and/or telephone interviews with 26 
individuals from MSHA, SOL, UMWA and Performance Coal Company.
    It is important to note that this review was limited to the 
specific allegations made against Mr. Page. This review did not include 
any matters related to the causes of the explosion, MSHA's inspection 
and enforcement activities at the UBB mine prior to the explosion, or 
any aspects of the accident investigation other than the five matters 
cited by Performance Coal and/or UMWA:
     The first incident involved MSHA's issuance of a citation 
and order requiring Dr. Christopher Schemel, Performance Coal's lead 
scientific consultant with respect to the UBB investigation, to 
withdraw from the mine until he received 40 hours of ``new miner'' 
training. We found that Mr. Page was not the impetus for the citation 
and order and he was only marginally involved in the matter. Other MSHA 
officials informed us that the issue of Dr. Schemel's training was not 
addressed for several months, and simply ``fell through the cracks,'' 
due to the hectic and busy atmosphere surrounding the first few months 
of the accident investigation.
     The second incident involved MSHA's issuance of a citation 
and order requiring Dr. Pedro Reszka, another scientific consultant 
hired by Performance Coal, to withdraw from the mine until such time as 
he could receive refresher safety training. Performance Coal alleged 
that the citation and order were issued in retaliation for a complaint 
which Performance Coal raised regarding an incident which occurred in 
the mine wherein a UMWA representative dislodged a piece of roofing and 
allegedly endangered Dr. Reszka's safety. We found that the citation 
and order were not issued as the result of any retaliatory intent by 
any MSHA officials. Rather, the decision to issue the citation and 
order was made independently by an MSHA inspector based on his personal 
observations of Dr. Reszka, and upon input he received from other MSHA 
inspectors who had spent time with Dr. Reszka in the mine, at a time 
when the inspector was unaware that any complaint had even been raised 
about the actions of the UMWA representative. Notably, the citation and 
order were similarly cited by the UMWA, but from the perspective of 
alleging that MSHA's attorney's in SOL were inappropriately ``making 
deals'' with Performance Coal attorneys, resulting in MSHA vacating 
legitimate safety citations and orders, including the one relating to 
Dr. Reszka.
     The third incident involved a meeting between Mr. Page and 
Dr. Schemel, who met to discuss the Reszka citation and order. During 
the meeting Mr. Page allegedly threatened Dr. Schemel with further 
citations and orders, with increased scrutiny by MSHA, and with other 
negative effects on his company, if he did not accept the citation 
issued with respect to Dr. Reszka, who was a subcontractor for Dr. 
Schemel. We did not find that Mr. Page intended to retaliate against 
Performance Coal or Dr. Schemel. Although MSHA officials and attorneys 
from the Office of the Solicitor had tentatively agreed to vacate the 
citation and order, we found that Mr. Page's contention that his 
objective was to reach a compromise between Performance Coal and the 
UMWA was credible and corroborated. In particular, Mr. Page hoped that 
such a compromise would prevent the UMWA from initiating a campaign of 
filing multiple safety complaints against Performance Coal that would 
require significant MSHA resources to investigate. Although we did 
question Mr. Page's judgment with respect to how he proceeded with this 
meeting and some of the things which he said to Dr. Schemel, we did not 
find any support for the claims of intimidation or retaliation.
     The fourth incident involved MSHA's allegedly retaliatory 
scheduling of an inspection of the mine rescue station that serviced 
the UBB mine since, according to Performance Coal, that same mine 
rescue station already had been inspected several times after the UBB 
accident by District 4 inspectors. We found that the decision to 
schedule the inspection of the mine rescue station was made by two 
District 6 MSHA inspectors at a time when neither of them knew that a 
recent inspection of the rescue station had been done by District 4 
and, when they learned of the recent inspection, they appropriately 
cancelled their own planned inspection of the rescue station.
     The fifth incident involved MSHA's issuance of an order 
banning John Montoya, an employee of another consultant hired by 
Performance Coal, from entering the mine until he completed the 40-hour 
new miner training. We found that Mr. Page was not involved in the 
decision to issue the order relating to Mr. Montoya, and we were 
therefore unable to conclude that the order was part of a pattern of 
intimidation or retaliation on Mr. Page's part, or by MSHA officials in 
general.
    In summary, our review of these five incidents did not substantiate 
the allegation that Mr. Page engaged in a campaign or pattern of 
intimidation or retaliation. Further, we found no evidence that MSHA, 
as an entity, engaged in such a campaign or pattern, at Mr. Page's 
behest or otherwise. However, during our review, we did identify three 
questionable management actions:
     We found that the ultimate decision made by officials from 
MSHA and the Office of the Solicitor to vacate the citation and order 
related to Dr. Reszka was not based on the merits, but rather was made 
to avoid an appearance of retaliation and any potential congressional 
scrutiny.
     We found that Mr. Page used poor judgment when he met with 
Dr. Schemel to discuss the Reszka citation and order, without any other 
individuals being present, and when he made statements that could have 
been perceived and/or interpreted as intimidating.
     We also found that it may have been appropriate for MSHA 
to consider other, less punitive approaches, short of issuing a 
citation and order, with respect to the order and citation issued 
against Dr. Schemel, given that MSHA allowed him to go underground in 
this mine for some three months before realizing he did not have the 
proper training.
DOL's Response
    In responding to our report, the Department indicated that the 
Office of the Solicitor had conducted its own review of the allegations 
against Mr. Page, and that its conclusions were in agreement with the 
OIG conclusions.
    Regarding the specific management actions questioned by the OIG, 
the Department stated that MSHA decided to vacate the citation and 
order related to Dr. Reszka on the condition that he receive additional 
safety training prior to returning to the mine, which he did. The 
Department stated that this result was appropriate, and therefore 
planned no further action for this finding.
    Further, the Department agreed with the OIG finding that Mr. Page 
had used poor judgment when he met with Dr. Schemel without any other 
individuals being present. The Department stated that while Mr. Page's 
actions could be viewed as imprudent, he had no intention to intimidate 
Dr. Schemel or engage in retaliation; therefore, the Department planned 
no further action for this finding.
    Regarding the citation and order related to Dr. Schemel, the 
Department stated that it could not comment on the OIG finding that 
MSHA could have considered less punitive measures to resolve this 
situation because the order and citation were still in litigation. 
However, the Department agreed to provide guidance to assure 
consistency of enforcement regarding the applicability of its training 
regulations.
Conclusion
    In conclusion, Mr. Chairman, I would reiterate that our primary 
objective was to review the allegations against Mr. Page, and we did 
not substantiate these allegations. Thank you, Mr. Chairman, for the 
opportunity to present the results of our review. I would be pleased to 
answer any questions that you or other Members of the Committee may 
have.
                                 ______
                                 
    Chairman Kline. Thank you, Mr. Shapiro.
    Mr. Roberts?

                   STATEMENT OF CECIL ROBERTS

    Mr. Roberts. Thank you very much, Mr. Chairman and Ranking 
Member Miller for calling this hearing.
    I want to thank all of the panel members who have 
participated in this.
    And thank you so much on behalf of the coal miners of the 
United States for Congress' concern about the health and safety 
of coal miners in the United States.
    Excuse me.
    I want to also very much thank you for remembering the 
families of the lost miners. Many of these people were my 
friends. I grew up with some of these people who lost their 
lives. And if I didn't know the miners themselves, I knew 
someone in their families.
    This morning, I would like to remember in particular the 
Davis family. Linda Davis and Charles Davis lost a son and two 
grandsons in this tragedy.
    The past 2 years have been very difficult for that family. 
And unfortunately on Friday, the funeral of Linda Davis took 
place. And I wanted to say to you, she was a wonderful lady.
    One of the things that I would recommend--people have been 
asking what can we do and what can we do? One of the first 
things I would suggest that should be bipartisan here is that 
these families get treated better when these tragedies occur.
    A miner working at a nonunion mine, or for that matter a 
union mine, can designate someone to represent them in an 
investigation. That happened at Upper Big Branch where more 
than two miners had designated the United Mine Workers to 
represent them. So we were a representative of those miners at 
Upper Big Branch.
    The families do not enjoy that right. And I have to tell 
you that that is something that is discussed very much 
throughout the coalfields and how tragic that is that the 
people who have suffered the most can't have someone 
representing them when these hearings are ongoing, and when the 
investigation itself is ongoing.
    I don't think anyone sitting in front of me believes that 
is correct, so one of the easy things that I believe that we 
can do here is correct that situation.
    We have to have three things in order for something like 
Upper Big Branch not to occur again.
    Number one, we have to have an operator who is willing to 
follow the law. The first obligation here is for the industry 
to protect these coalminers.
    Number two, we have to have an agency which fully enforces 
the law.
    And three, we have to have workers who are empowered to 
speak out for themselves.
    I want to report to you today that none of these three 
ingredients existed at Upper Big Branch.
    We know and we have heard testimony repeatedly here, that 
we had an operator who was recalcitrant and who was 
dictatorial. And it wasn't just the Upper Big Branch mine. All 
of these mines operated by Massey Energy, you could find 
similar situations.
    And in fact MSHA has found those same kinds of situations 
existing, the same dangerous conditions existing before Massey 
turned these operations over or sold them to Alpha Natural 
Resources.
    And I wanted to remind you of the famous, infamous memo 
sent out in October of 2005 by Don Blankenship, sent to all 
deep mine superintendents entitled, Running Coal. This is from 
the man--this is from the top person in this company.
    And he believed, and the miners believed, and most people 
in West Virginia believed that he was above the law. He was 
above the governor. He was above this Congress right here.
    So that you will know that is how he was perceived in 
southern West Virginia.
    ``If any of you have been asked by your group presidents, 
your supervisors, engineers or anyone else to do anything, 
anything other than run coal such as build overcasts,'' which 
happens to take ventilation to the working sections, ``do 
construction jobs or whatever, you need to ignore them and run 
coal. This memo is necessary only because we seem not to 
understand that the coal pays the bills.''
    We have consistently said that people like Don Blankenship, 
and I have called for him to be led away in chains and locked 
up in jail because that is where he deserves to be, because if 
any one person is responsible for what happened at Upper Big 
Branch it is Don Blankenship.
    Number two, what we need to do is clarify the authority of 
MSHA. We have repeatedly said well why didn't MSHA close this 
mine down?
    Well, let us clarify that authority. If we believe that 
that is what they should do, when they find circumstances like 
they found, let us clarify that authority and say, you do have 
it.
    If you want to do something for the coal miners of the 
United States of America, you stand behind whoever is running 
MSHA and say to the operators, you may choose to operate like 
Don Blankenship did, that you, the Congress of the United 
States, Republican and Democrat alike, will stand behind the 
enforcement agency of the United States and see that we do not 
see these conditions again.
    Number three, workers need to be empowered. And if you can 
do one thing before you leave this session of Congress, let us 
give the power to the coal miner himself, because as we are 
sitting in this room today, I guarantee you, that some foreman 
somewhere is telling a miner to go under unsupported top, 
telling that miner to do something that is going to get him 
hurt, telling that miner to do something that is going to get 
him killed.
    And that should be a felony. That coalminer should be able 
to say I am not doing that. I am exercising the right that 
Congress gave me. And if you continue to tell me to do 
something dangerous, you are going to jail.
    They don't have that ability today as we speak, because 
they know they will be fired. And they won't have a job. And 
they won't find another job.
    Thank you. And I will be glad to answer any questions that 
you have.
    [The statement of Mr. Roberts follows:]

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

    Thank you for the opportunity to address the House Committee on 
Education and the Workforce, Full Committee on Workforce Protections 
about Learning from the Upper Big Branch Tragedy. I am the 
International President of the United Mine Workers of America (UMWA), a 
union that has been an unwavering advocate for miners' health and 
safety for over 122 years.
    Before I speak about what we can learn from the Upper Big Branch 
tragedy, I want to acknowledge all of the families that lost a loved 
one and neighbors who lost a friend in the senseless methane/coal dust 
explosion on April 5, 2010. The 29 families all suffered a loss that we 
can never forget. The victims paid with their lives for the deliberate 
greed of Don Blankenship and his underlings.
    The UMWA has long held that three things are necessary for a safe 
and productive mine:
     An operator who is willing to follow the law.
     An agency which fully enforces the law.
     Workers who are empowered to speak out for themselves.
    None of these things happened at the non-union UBB mine.
    Don Blankenship's team pursued a game of cat and mouse with the 
Mine Safety and Health Administration (MSHA). While MSHA inspectors 
were trying to determine whether Massey was following mine health and 
safety laws and regulations, as all operators are required to do,
    Blankenship's management was regularly doing what it could to 
subvert MSHA's efforts. Every day they did that, they jeopardized the 
safety of all miners working under their control and direction. On 
April 5, 2010, the vulnerable miners at the Upper Big Branch mine fell 
victim to the needlessly dangerous and neglected mine environment.
    It is not a secret in the coalfields that some operators give 
advance notice to miners working underground of MSHA inspections. Mine 
Managers make quick and superficial adjustments to the ventilation, 
quickly rockdust the entries where an inspector would be headed or shut 
down production entirely on a working section in order to avoid being 
cited for violating MSHA's standards. Through the work of the United 
States Attorney's office in Charleston, West Virginia, we finally have 
public confirmation from one of the Massey managers who affirmatively 
engaged in such deceptive practices. Earlier this month, Upper Big 
Branch Mine Superintendent Gary May gave testimony in Hughie Elbert 
Stover's sentencing hearing about that mine's practice and system for 
providing information to miners working underground whenever federal 
and state safety inspectors were on the property, with details about 
where the inspectors would be traveling and inspecting. Stover was 
convicted and sentenced to three years in prison on February 29, 2012. 
Mr. May further explained that he acted deliberately to change 
underground mining conditions to make them temporarily appear better 
and more compliant than they had been while the mine was actively 
operating but before learning about the inspector's underground 
presence.
    We don't mean to claim that Massey and its subsidiaries had a 
monopoly on these illegal practices, but its rogue attitude had become 
an integral part of the operating culture at the Upper Big Branch mine. 
It became so bad that miners came to view the unlawful mining practices 
as the norm. Some of the more experienced miners probably knew that 
what Massey was doing was wrong, but they had to work. Tolerating 
unsafe conditions was necessary if they wanted to keep their jobs. On a 
daily basis, these miners worked in an atmosphere of fear and 
intimidation. However, there can be no question that for Don 
Blankenship and his Massey mines, production was the top priority; and 
the second priority; and the third priority * * * This is demonstrated 
by the October 19, 2005 memo Don Blankenship sent to All Deep Mine 
Superintendents entitled ``Running Coal'' which stated ``If any of you 
have been asked by your group presidents, your supervisors, engineers 
or anyone else to do anything other than run coal (i.e.--build 
overcasts, do construction jobs, or whatever), you need to ignore them 
and run coal. This memo is necessary only because we seem not to 
understand that the coal pays the bills.''
    One stark example of Massey's unlawful behavior was revealed in the 
report from MSHA's Internal Review where it described Massey's frequent 
re-staging of its continuous mining machines/mechanized mining units 
(MMU's) to avoid citations for excessive respirable dust. Cutting coal 
creates mine dust that must be both reduced and controlled through 
ventilation, water sprays and rock dust to protect miners' lungs and to 
prevent explosive coal dust accumulations. Autopsy records of the UBB 
miners who were killed in the explosion uncovered surprisingly high 
levels of black lung and other lung disease within this workforce, 
including among the youngest victims. Seeing what the Internal Review 
discovered about MSHA's ineffective enforcement of the respirable dust 
standard (30 CFR Part 70) at UBB suggests miners at this operation were 
often exposed to excessive levels of respirable dust.
    MSHA's regulations set maximum permissible respirable dust levels 
and require reductions to the dust levels depending on how much quartz 
is also present. However, as the Internal Review explained, MSHA 
District 4 allowed Massey to re-establish (that is, to increase) its 
permissible dust levels whenever it rotated its MMUs. Therefore, even 
though MSHA would establish a reduced respirable dust level for a 
certain area based on the level of respirable coal dust and the 
percentage of quartz generated by a MMU, Massey was able to avoid 
compliance with that reduced respirable dust standard simply by 
rotating out the MMU that was used to set the reduced level. With a 
different MMU in place, MSHA terminated any citation that was issued 
for excessive dust and allowed Massey to operate its replacement MMU 
with dust at the unreduced standard of 2.0 mg/m3 even though the same 
amount of quartz would have been present. This deliberate manipulation 
of the dust standard, established by the law, was the practice 
according to the Internal Review. MSHA District 4 also regularly 
allowed Massey to have abnormally long abatement periods for its dust 
citations. Massey was manipulating the law and too often MSHA District 
4 allowed the company to get away with it.
    MSHA's Internal Review outlines numerous deficiencies on the part 
of the Agency. These MSHA shortcomings, in particular MSHA District 4, 
allowed miners to remain in harm's way though the Agency should and 
could have prevented such exposures. In other words, although Massey 
failed in its duty to comply with mine safety laws and regulations, 
MSHA had a duty to utilize every enforcement tool at its disposal so 
that miners' safety would not be jeopardized. Massey made MSHA's job 
much more difficult by its subterfuge, but that doesn't excuse or 
explain MSHA's shortcomings.
    We now know that MSHA District 4 inspectors failed to:
     Inspect some areas of the mine (including in its last 
inspection, the Old No. 2 Section and the belt/return entries of 
Tailgate #22 tailgate, both areas where the explosion propagated), and 
rushed their inspections through other areas.
     Cite lack of adequate roof support controls that the roof 
control plan specified.
     Identify inadequacies in the coal and coal dust program 
including failures in the cleaning of loose coal, coal dust and float 
coal dust and the extent and duration of noncompliance with rock dust 
standards along belt conveyors.
     Use current rock dust survey procedures and to collect 
spot samples from older sections of the mine to see that UBB had the 
required incombustible content of rock dust to mine dust.
     Scrutinize the operator's examination records and require 
timely abatement of hazards cited and consider the hazards for purposes 
of determining the operator's degree of negligence.
    MSHA District 4 Supervisors, who had jurisdiction over the Upper 
Big Branch mine, did not provide effective oversight of the inspectors. 
District 4 failed to:
     Conduct 110 (c) special investigations (to determine if 
mine management knowingly violated mandatory standards) when 
established protocols indicated that would have been appropriate in six 
cases.
     Forward to MSHA's Arlington Headquarters eight violations 
that should have been considered for ``flagrant'' violations.
    Further, in reviewing mining plans for approval, experienced MSHA 
District 4 personnel made a number of mistakes, including:
     Not requiring methods in the ventilation plan that would 
mitigate methane inundations like the one that occurred in 2004.
     Not recognizing that (a) the roof control plan did not 
provide necessary pillar stability for ventilation in some areas and 
(b) the roof control plan did not include any of the required stability 
calculations to show the plan would be adequate.
    MSHA headquarters also failed to:
     Realize--due to a computer glitch--that the mine's 
violation history qualified UBB for the ``Potential Pattern of 
Violation'' list.
     Use or distribute its directives and policies effectively, 
some of which conflicted with each other. MSHA employees did not always 
understand the policies.
     Ensure that all entry-level or journeymen inspectors had 
the required training. Some of those responsible for inspecting or 
supervising inspectors at Upper Big Branch did not have all the 
required training. MSHA's own policy does not permit entry-level 
inspectors to travel by themselves, which occurred at UBB.
    The scope of internal MSHA problems ran from top to bottom. 
However, MSHA District 4 Supervisors dropped the ball by ignoring 
several red flags as I previously stated.
    The Internal Reviews following the previous five underground coal 
mine tragedies of the preceding decade (Jim Walter Resources in 2001; 
Sago, Aracoma and Darby in 2006; and Crandall Canyon in 2007) 
identified a number of problems that persisted into 2010. It is time 
that we stop talking about these problems and fix them.
    While it may be appropriate to criticize the mistakes MSHA made 
before the UBB tragedy, it would be a huge disservice to the miners who 
perished at UBB and to their families if that is all we did. Instead, 
we should think proactively and take affirmative steps to make mines 
safer.
    Immediately after the Upper Big Branch tragedy MSHA began its 
program of impact inspections, targeting operations where it has reason 
to be concerned about Mine Act compliance. MSHA captures the mine 
communications system to prevent advance warnings of inspections. 
MSHA's impact inspections have uncovered large numbers of significant 
and potentially dangerous conditions. The Agency has also gone to court 
to test its authority to seek injunctions. These techniques have been 
successful in preventing operators from continuing to operate in the 
most hazardous of conditions.
    Even a more aggressive MSHA, one that uses the array of enforcement 
tools never used before the UBB tragedy, cannot protect miners if mine 
operators continue to flaunt the law. And too many do.
    The UBB disaster serves as a stark reminder that the culture of 
production over health and safety still exists in the coalfields. Don 
Blankenship and Massey represented the worst of the coal industry. They 
flagrantly violated and ignored the law at the expense of the miners. 
Don Blankenship's philosophy cost the lives of 29 miners at UBB and 
countless others that lost their lives at Massey's mines.
    The UMWA applauds the U.S. Attorney's office for pursuing criminal 
prosecution against individuals who contributed to the April 5, 2010 
tragedy at UBB. However, allowing Don Blankenship to walk away from the 
crimes he and his underlings committed at UBB would be a gross 
miscarriage of justice. He laid out the rules under which UBB operated 
and kept a watchful eye to ensure that his policies were being 
followed. Don Blankenship should be prosecuted for his actions and I 
stand here today saying to this Committee that until corporate heads 
like Don Blankenship are held accountable for their actions, we have 
not witnessed the last senseless tragedy and loss of life in the coal 
industry.
    What is also upsetting to me is the misdemeanor plea deal that 
federal prosecutors recently reached in the 2007 deaths of nine workers 
at the Crandall Canyon Mine in Utah. Murray Energy's subsidiary, Genwal
    Resources, agreed to plead guilty to two mine safety crimes and pay 
$250,000 for each of the two criminal counts. The travesty of justice 
is that the plea agreement states that no charges will be brought 
against any Genwal mine managers or any executives. Once again, the 
real guilty parties escaped justice. I guess the cost of nine lives is 
$500,000.
    MSHA cannot be everywhere all of the time. That is why the law 
correctly charges operators with the duty of operating in a safe and 
healthful way. If an operator wants the privilege of running a coal 
mine, it must assume the obligation of doing so in a way that doesn't 
put its employees' lives in jeopardy. Yet, this doesn't always happen. 
Too often corporate greed takes precedence. We urge Congress to 
increase the penalties for egregious mine health and safety violations.
    So what else can we do to reduce the likelihood of any more coal 
mining disasters? We owe it to all miners to learn from the problems 
that led to the Upper Big Branch tragedy as well as from other 
disasters.
    What this Committee and Congress does really matters to the coal 
miners of this nation. After the Sago mine disaster and others in 2006, 
Congress required that coal operators make underground shelters 
available to protect miners who survive but cannot escape an explosion 
or mine fire. Despite the tremendous explosive forces that rocked the 
Upper Big Branch mine, a shelter near the explosion survived intact and 
could have sheltered miners if they had survived the explosion. That 
Strata shelter was under water for weeks, and yet it remained dry 
inside. Had that shelter been at the Sago mine in January 2006, eleven 
of the twelve miners killed would still be with us today. Without 
Congress advancing the issue in the 2006 MINER Act, we still would not 
have shelters underground.
    Again, through the MINER Act, Congress required significant 
improvements in tracking and communications' technology and equipment. 
Coal operators claimed it couldn't be done, or the costs were too high 
to allow them to remain in business, but Congress appreciated that 
changes were necessary and demanded that the industry implement the 
improvements. By legislating these changes, there was a flurry of 
imaginative and creative work done to develop practical equipment that 
could survive the harsh mine environment. These state of the art 
systems are in place all over the United States today.
    We appreciate that some operators are spending more money on 
equipment and technology to make the mine environment safer for miners. 
However, more improvements can be made. For example, rock dust sampling 
results are not completed in a timely fashion. The mine environment can 
become extremely explosive in a very short period of time if rock dust 
is not applied regularly. Rock dust is required to minimize the 
explosiveness of coal dust in case there is an ignition source present. 
While better and newer dust explosibility meters exist, most 
operators--as well as MSHA--are not purchasing them because they are 
not required to use them. This equipment can provide immediate, real 
time information about the incombustibility of rock dust to coal dust 
levels. Instead, the current protocol provides for the samples to be 
sent to MSHA's lab, where the Agency uses antiquated equipment to test 
the samples. It takes 2-3 weeks to return the results. I would like to 
point out that operators like Consol, Patriot and Alpha are taking 
advantage of this new technology. At Upper Big Branch, samples taken 
before the April 5 explosion showed that the mine had inadequate rock 
dust--but those sample results were not reported until after the 
disaster. We are left to wonder whether having the results in real time 
would have averted this disaster.
    The illegal practice of advance notice of safety inspections is not 
limited to Upper Big Branch but occurs at many operations. MSHA's 
recent tactic of taking control of the communications systems when 
inspectors travel to operations has demonstrated that advance notice is 
not uncommon: the kind and extent of violations found when the 
communications are taken over exceed those MSHA had previously 
discovered. Clearly, the existing penalties for advance notice are 
ineffective and should be increased to help effect compliance.
    Another area where the Mine Act should be updated concerns its 
whistleblower protections. The Mine Act was one of the first to provide 
whistleblower protections against discrimination or retaliation for 
reporting safety violations. However, these provisions are now inferior 
to recent and more-protective whistleblower provisions included in 
other statutes. Miners under the Mine Act now have only 60 days to blow 
the whistle. This window should be lengthened to give miners a better 
chance to pursue actions when they suffer discrimination or retaliation 
for exercising their health and safety rights.
    The compensation provisions in Section 111 of the Mine Act should 
also be expanded. As it now stands, miners generally can collect no 
more than one week's worth of wages when an operator's violations 
require MSHA to shut down the mine. Too often miners have to make the 
choice between putting food on the table and protecting their own 
safety. By expanding the compensation provisions, miners' health and 
safety would be better protected.
    MSHA's accident investigation procedures must also be modernized. 
The UMWA has always advocated that an independent agency should conduct 
all accident investigations much like the National Transportation 
Safety Board. Asking MSHA to critique its own actions following a 
disaster does not always lead to the most objective point of view. We 
further believe that the law should be changed to include in the 
investigation those most affected: the miners and family members of 
deceased miners. We also believe that MSHA must have the power to 
subpoena witnesses, rather than rely on voluntary interviews.
    The UMWA is not convinced that any one action by MSHA would have 
resulted in substantially better compliance on the part of Massey. It 
is clear that UBB should not have been operating at the time of the 
explosion. Had MSHA District 4 used all of the enforcement tools at 
their disposal, the disaster may have been prevented. However, no one 
should ever lose sight that Massey Energy, including Don Blankenship 
and his underlings, were mandated by law to comply with all health and 
safety standards and maintain UBB in a safe operating condition. 
Instead, the mine was operated in a manner compliant with a corporate 
policy that put production over safety. This is why I will once again 
call for the criminal prosecution of these individuals.
    The authors of the Internal Review have recommended that the 
Assistant Secretary consider rulemaking that would modify several 
health and safety standards. The recommendations are found in Appendix 
C--Recommendations for Regulatory Changes. There are 23 separate 
provisions outlined in Appendix C, all of which would improve health 
and safety protections for miners. The UMWA is in complete agreement 
with these recommendations in addition to the changes we outlined in 
our report.
    This gets me to my last point. Congress needs to act quickly to 
pass legislation that will build on the protections of the 2006 Miner 
Act. As Congress so eloquently stated in the Act: ``the first priority 
and concern of all in the coal or other mining industry must be the 
health and safety of its most precious resource--the miner.''
    In conclusion, I thank you for the chance to appear before this 
Committee and appreciate your interest and concern for miners' health 
and safety.
                                exhibits
 Internal Review of MSHA's Actions at the Upper Big Branch 
        Mine--South, Performance Coal Company, Montcoal, Raleigh 
        County, West Virginia

  U.S. Department of Labor, Mine Safety and Health Administration, 
       Program Evaluation and Information Resources, March 6, 2012.

 Industrial Homicide--Report of the Upper Big Branch Mine 
        Disaster
                                    United Mine Workers of America.

 October 19, 2005 Don Blankenship memorandum on ``Running 
        Coal''

 West Virginia House Bill 4351
                                 ______
                                 
    Chairman Kline. Thank you, sir.
    Dr. Kohler?

                  STATEMENT OF JEFFERY KOHLER

    Dr. Kohler. Good afternoon, Mr. Chairman, Ranking member, 
other members of the committee.
    My name is Jeffery Kohler and I am the associate director 
for mining at the National Institute for Occupational Safety 
and Health, and the director of NIOSH's Office of Mine Safety 
and health Research.
    I am pleased to be here today to provide a brief update on 
our activities related to the miner act and to speak to you 
about the work of an independent panel that assessed the 
process and outcomes of the Mine Safety and Health 
Administration's internal review of the UBB mine disaster.
    NIOSH continues to work with our partners in labor, 
industry and government to develop and implement practical 
solutions to mining safety and health problems.
    Our primary focus remains on prevention. And towards that 
end, we have implemented interventions to reduce respirable 
dust, to prevent roof falls, and to prevent coal dust 
explosions among others.
    For example, the Coal Dust Explosibility Meter, you know, 
became available this past June.
    Our work in the technology area has led to the 
commercialization and in-mine use of communications and medium 
frequency systems, such as the CDEM frequency system, also the 
Lockheed Martin Through-The-Earth system for post-accident 
functionality.
    Despite all of the progress, the explosion at UBB serves as 
a poignant reminder that more remains to be done. Following 
that disaster, the secretary of labor requested the director of 
NIOSH to appoint a panel of experts who would be independent of 
MSHA and DOL, to assess the processes and outcomes of MSHA's 
internal investigation.
    I was appointed to that panel. And I speak to you next 
about my role as a panel member.
    The panel's report was not reviewed or cleared by NIOSH, 
CDC, OR HHS, prior to its release.
    All mine operators must take a proactive role in ensure the 
safety of mine workers. And as the accident investigations have 
concluded, Massey Energy's highly noncompliant practices 
directly caused the explosion at the UBB mine.
    It is impossible to know how many thousands of deaths have 
been prevented through MSHA's enforcement action. Yet in those 
instances when the operator's actions have caused the disaster, 
we must understand why, learn from, and take actions to prevent 
future occurrences.
    MSHA's internal investigation team was thorough. And it 
disclosed fully every deficiency it found at MSHA's enforcement 
performance.
    A review of MSHA's internal reviews for other mine 
disasters also revealed a candid and detailed disclosure of 
shortcomings in MSHA's enforcement performance. The same or 
very similar deficiencies show up in many of these internal 
reviews. And now, as in previous internal reviews, a detailed 
set of recommendations has been put forth to fix the identified 
problems.
    No doubt, those recommendations will be helpful if 
implemented. But we do not believe, the panel does not believe, 
that only doing more of the same, more training, changes to 
handbooks, or administrative procedures and policies, will 
fully achieve the desired performance that MSHA expects.
    We believe there are underlying problems which have 
developed over the years that must be solved. The report Of 
MSHA'S internal review and the interview transcripts detail a 
workforce of inspectors, specialists, and supervisors that is 
severely overloaded and trying to accomplish a lengthy set of 
duties that is not fully doable.
    With the insights that we gained from our assessment, we 
have developed four overarching recommendations that we believe 
should be implemented.
    Our first recommendation is for a comprehensive analysis of 
the current enforcement paradigm to identify and repair any 
underlying weaknesses. Collectively, we cannot continue to do 
the same thing and expect a different and better outcome.
    As part of this recommendation, we have suggested several 
topics that we believe should be included in the comprehensive 
discussion: workforce and workforce readiness issues, 
continuing challenges in the plan approval process, and better 
use of information technologies to aid enforcement, among 
others.
    Second, we have recommended a few changes to MSHA's 
internal review policy itself to enhance the value of their 
process.
    Third, we have recommended independent oversight to ensure 
successful implementation of their recommendation.
    Finally, we have recommended technical investigations to 
support development of best practices guidelines, and to inform 
statutory or regulatory activities, in particular, improve 
monitoring explosion prevention, and ventilation practices.
    In closing, NIOSH continues to work diligently to protect 
America's mine workers. And our research activities will enable 
NIOSH together with MSHA, labor, and industry to better protect 
mine workers.
    Thank you, Mr. Chairman. And I would be pleased to answer 
any questions.
    [The statement of Dr. Kohler follows:]

 Prepared Statement of Jeffery Kohler, Associate Director for Mining; 
  Director of the Office of Mine Safety and Health Research (OMSHR), 
     National Institute for Occupational Safety and Health (NIOSH)

    Good morning Mr. Chairman and other distinguished Members of the 
Committee. My name is Jeffery Kohler, and I am the Associate Director 
for Mining and the Director of the Office of Mine Safety and Health 
Research (OMSHR) at the National Institute for Occupational Safety and 
Health (NIOSH), which is part of the Centers for Disease Control and 
Prevention (CDC), within the Department of Health and Human Services.
    NIOSH continues to develop and deploy new practices and 
technologies that make mines safer and help miners remain healthy. Some 
of these have been described to you in the past, when they were in the 
developmental stage. Today, I will give you an update on a few of them, 
and I will tell you about newer projects that are currently underway.
    The MINER Act of 2006 (P.L. 109-236) placed a special emphasis on 
the development, adaptation, and transfer of technologies to improve 
safety and health in the mining industry. New technologies to improve 
the post-accident survivability of miners, envisioned after the Sago 
Mine disaster in 2006, are commercially available today, and many have 
been deployed in the industry. Many of these were made possible through 
the work of NIOSH and because of the support provided by the Congress.
    Ongoing partnerships with labor, industry, and government continue 
to facilitate the development of practical solutions to challenging and 
pervasive mining safety and health problems, and today I will tell you 
about one such effort. I will also speak to you about the work of the 
Independent Panel that assessed the process and outcomes of the Mine 
Safety and Health Administration's (MSHA) Internal Review of the Upper 
Big Branch Mine disaster. I was appointed to serve as the Executive 
Secretary of the panel.
    NIOSH's mining research priorities address disaster prevention and 
response, traumatic injuries, cumulative trauma disorders, respiratory 
diseases, and hearing loss. In the area of disaster prevention, rock 
dust is applied to coal mine surfaces to prevent coal dust explosions, 
but to be effective, it must be applied in sufficient quantity to 
achieve an 80% or greater ratio of incombustible material. A laboratory 
test is the only way to determine whether the coal dust is no longer 
explosive. Historically, a sample was collected, sent to a laboratory 
for testing, and then the result was reported--usually a week or more 
later. Over the years, NIOSH developed and has attempted to 
commercialize a Coal Dust Explosibility Meter (CDEM). The CDEM is an 
instrument used to assess the explosibility of coal dust in real-time. 
In June 2011, a commercial manufacturer began production of the CDEM. 
This commercialization was preceded by extensive in-mine testing 
throughout the United States, which demonstrated the utility and 
accuracy of the device. Presently, some mine operators are beginning to 
use the CDEM to assess the explosion hazard and make adjustments in 
real time. NIOSH has drafted a report entitled ``Coal Dust 
Explosibility Meter Evaluation and Recommendations for Application'' 
and is planning to finalize it soon.
    The personal dust monitor (PDM) is not only commercially available 
but is now certified in accordance with 30 CFR Part 74 (Coal Mine Dust 
Sampling Devices) as an approved dust sampling device--a prerequisite 
to its use in compliance monitoring. This device represents a 
significant advancement in the campaign to eliminate coal worker 
pneumoconiosis (black lung disease). Already some operators have begun 
to use this device, and limited NIOSH studies to date find that when 
empowered with this technology, miners will use it to reduce their 
exposure to respirable dust.
    The reduction of respirable dust in the production environment is 
as important as ever, and NIOSH has developed a best practices handbook 
and conducted several ``train-the-trainer'' workshops to disseminate 
these practices throughout the industry. At the same time, our 
scientists and engineers are studying new and potentially more 
effective technologies for further reducing respirable dust levels. The 
``canopy air curtain'' for use on roof bolters, for example, envelops 
the operator inside a ``canopy'' of filtered air. If the in-mine trials 
are as successful as those in the laboratory, it will eliminate one of 
the highest respirable dust exposures.
    Equipping miners with the knowledge, skills, and technology to 
escape successfully during mine emergencies is a continuing priority. 
NIOSH has developed training and technology in this area, and recently, 
we funded the National Academies to conduct a comprehensive analysis of 
self-escape in the context of mining safety. They will examine judgment 
and decision making under conditions of stress and uncertainty, 
essential competencies for escape, training methods to impart the 
skills needed to plan and execute an escape, and technologies that 
could improve the chances of self-escape, among others.
    A few months ago, NIOSH researchers conducted a workshop with 
industry, labor, and government stakeholders from the metal/nonmetal 
and coal sectors to identify training successes and gaps, and to set 
priorities for improvement over the next five years. Recently, a set of 
training programs on the use of refuge chambers was completed. We are 
also seeking more effective ways to train miners, and over the past 
year we have adapted a 360-degree virtual reality theatre that we 
observed being used in Australia to train mine rescue teams. Building 
on their work, we are already developing advanced training simulations 
that will allow teams of miners to interact simultaneously. One of our 
initial efforts is focusing on means to train miners more effectively 
to escape under emergency conditions.
    Of course, practices to prevent emergencies in the first place 
should be everyone's priority, and toward that end, NIOSH researchers 
have developed improved techniques to prevent mine explosions and roof 
falls, and we will continue to conduct research in priority areas such 
as methane flows into and out of gob areas of active longwall panels 
(mined out areas made up of caved in rock).
    Since the passage of the MINER Act, NIOSH has awarded 94 technology 
development and research contracts, targeting innovations in 
communications and tracking, escape, rescue, sensory systems to improve 
hazard recognition, and prevention efforts with an emphasis in mine 
explosion prevention and fire suppression.
    These efforts have produced several technological advancements that 
have significantly improved post-accident survivability, provided a 
framework to enhance detection of hazardous conditions as they develop, 
and aided in fundamental understanding of mechanisms that contribute to 
disastrous events, which are leading to enhanced intervention 
technologies and strategies to prevent their occurrence.
    Prior to the MINER Act, communication in most underground mines was 
equivalent to a simple, land-line-style telephone system that was 
highly vulnerable to disruption due to local and large-scale mine 
catastrophes, such as explosions and ground falls. All mines now have 
installed some form of primary wireless, two-way communication, 
reaching to all locations within the mine with sufficient redundancy to 
enhance survivability in local-scale mine disasters. Secondary systems 
which require much less infrastructure have also been developed to 
enhance survivability in large-scale mine disasters. Commercially 
available systems include the medium frequency system and the Through-
the-Earth (TTE) systems. ``Gateways'' have been developed to allow 
interoperability among these systems, and this provides for greatly 
improved post-accident survivability and functionality, even when parts 
of systems have been compromised.
    Collaborations with the Navy, the National Aeronautics and Space 
Administration (NASA), the National Institute of Standards and 
Technology (NIST), and the Department of Energy (DOE), among others, 
are being used to leverage taxpayer investments in one agency to the 
solution of problems in another. Similarly, working collaborations are 
underway with mining safety and health agencies in other countries. For 
example, the Safety in Mines Testing and Research Station (SIMTARS), a 
mining safety agency in Queensland, Australia, and NIOSH are jointly 
developing a mine escape vehicle, which incorporates enhanced breathing 
capacity, communication, and guidance into a conventional mine 
transport vehicle. A prototype has been designed and built to provide 
life-support functions for 10 to 12 miners, operate in an oxygen-
deficient, low- or no-visibility atmosphere, and travel at speeds 
faster than miners can walk out of a mine. Underground field trials of 
the prototype vehicle will occur later this fiscal year.
    There are many examples to illustrate the mine safety and health 
improvements that are attributable to the research, development, and 
translating activities of NIOSH, as well as to the collaborations of 
NIOSH with MSHA and labor and industry partners. It is impossible to 
quantify how many disasters have been prevented and how many lives have 
been saved as result of the work of NIOSH and its partners at MSHA, 
labor, and industry. On the other hand, when something goes terribly 
wrong, the human cost is all too apparent--and then there is a 
responsibility to understand what went wrong and what needs to be done 
to ensure that it never happens again.
    Following the explosion at Performance Coal Company's Upper Big 
Branch Mine South (UBB), which resulted in the death of 29 miners and 
serious injuries to two other miners, Hilda Solis, Secretary of the 
U.S. Department of Labor, requested that the Director of NIOSH identify 
a panel of individuals with relevant experience to conduct an 
independent assessment of the MSHA Internal Review (MSHA IR). Secretary 
Solis asked the UBB Independent Panel to assess the MSHA IR Team's 
processes, conclusions, and recommendations.
    Dr. John Howard, the Director of NIOSH, appointed four experts in 
areas relevant to the MSHA IR Review and MSHA's UBB enforcement 
activities to serve on the independent panel. Members of the 
independent panel included Lewis Wade, Ph.D., (Chair); myself 
(Executive Secretary); Michael Sapko, M.S; and Alison Morantz, Ph.D., 
J.D. Susan Moore, Ph.D., of the NIOSH Office of Mining Safety and 
Health Research served as staff assistant and Recording Secretary. The 
Assessment produced is not a NIOSH publication. The views expressed by 
the
    Panel members are their own professional views and not necessarily 
those of NIOSH, CDC or HHS.
    In April 2010, Joseph Main, Assistant Secretary of Labor for Mine 
Safety and Health, instructed MSHA's Director of Program Evaluation and 
Information Resources (PEIR) to assemble a team to conduct an internal 
review of MSHA enforcement activities at UBB in accordance with 
applicable MSHA policy and procedures. The PEIR Director assembled a 
group of MSHA employees without current enforcement responsibilities in 
Coal Mine Safety and Health District 4 to serve on the MSHA IR Team.
    Over a period of nearly two years, the MSHA IR Team reviewed 
thousands of pages of records on enforcement activities (including 
ventilation and roof control plans, correspondence files, handbooks, 
policy manuals, and enforcement inspectors' notes) and interviewed 87 
MSHA employees.
    In June 2010, the independent panel met with the MSHA IR Team for 
the first time. Over the ensuing 18 months, seven follow-up meetings 
took place via conference call between the MSHA IR Team and the 
independent panel. At each of these meetings, the MSHA IR Team briefed 
the independent panel on its progress and consulted with the panel on 
specific methods being used to examine discrete aspects of MSHA's 
actions or inactions prior to the UBB explosion. Meanwhile, the 
independent panel periodically asked the MSHA IR Team to provide it 
with specific documents, including prior MSHA Internal Review Reports, 
Internal Policy and Procedures, and the Ventilation Plan Approval 
Handbook. The independent panel analyzed all materials that it received 
from the MSHA IR Team, including reports from internal reviews that 
MSHA had conducted in the wake of earlier mine disasters from 2001 
onwards.
    On January 11, 2012, the MSHA IR Team provided NIOSH with a draft 
report and requested the independent panel's views about the report. On 
February 3, 2012, the independent panel conveyed its comments to the 
MSHA IR Team. On February 23, 2012, the MSHA IR Team provided its final 
IR report to the independent panel.
    MSHA's Administrative Policy and Procedures Manual, Volume III, 
Section 1200, entitled ``Internal Review Policy and Procedures,'' 
establishes the objectives, responsibilities, and procedures for 
conducting an internal review of an incident in an underground mine 
resulting in three or more fatalities. The independent panel assessed 
the MSHA IR process, conclusions and recommendations against this 
policy.
    The independent panel prepared a report that summarizes its 
assessments of MSHA's Internal Review, and specifically the processes 
it used, its conclusions, and its recommendations. Further, the 
independent panel report provides a set of recommendations that it 
believes will lead to a lasting improvement in MSHA's enforcement 
performance.
    I appreciate the opportunity to testify this morning and thank you 
for your continued support. I am pleased to answer any questions you 
may have.
                                 ______
                                 
    Chairman Kline. Thank you, Dr. Kohler.
    Thanks to all three of you.
    Dr. Kohler, it looks to me like you have got something next 
to you on the table there. That I would--from here the Coal 
Dust Explosability Meter, I think.
    Is that ready for prime time?
    Dr. Kohler. Yes it is.
    Chairman Kline. Excellent. So you believe it can be used as 
a compliance tool right now.
    Dr. Kohler. That is correct.
    Chairman Kline. I just wanted to give you the opportunity 
to raise it up. I----
    Dr. Kohler. Yes.
    Chairman Kline. Well, you brought such a nice device there 
and I just hate for it to sit on the table.
    Thank you. Thank you very much.
    Again, Dr. Kohler, West Virginia, as so many 
investigations--West Virginia's UBB report made a 
recommendation to NIOSH to further study active and passive 
barriers.
    Can you explain what those are? Describe NIOSH's previous 
work in this area, and what you need to complete this study.
    Dr. Kohler. Yes. Active and passive barriers serve as 
secondary means of quenching an explosion once it has started.
    Active and passive barriers would offer the opportunity to 
be placed in certain strategic locations, for example in 
certain belt entries, so that if the other mechanisms failed 
and there were a dust explosion, the barriers would most likely 
quench that explosion.
    In order to implement these barriers, there are a few 
remaining questions, some experiments that need to be done. And 
as the State of West Virginia recommended, there is some 
additional research that we need to build on the work that we 
did several years ago.
    At our Lake Lynn Experimental Mine, for example, that 
facility has the ability to do the kind of work that needs to 
be done to verify and to provide the best practices for 
applying active and passive barriers.
    Chairman Kline. Okay. I am not sure I understand fully what 
you need to complete the study. But thank you for the answer.
    I want to pick up on something I talked about earlier and 
we have been sort of stepping around this all day.
    NIOSH's independent review stresses that MSHA's internal 
review perhaps failed to address the broader more important 
issue, that is, quote--``would a more effective enforcement 
effort,'' by MSHA, ``have prevented the UBB explosion?''
    Looking beyond the specifics of this question for the 
moment, how do you believe MSHA could best understand the 
underlying issues concerning its involvement in Upper Big 
Branch?
    Dr. Kohler. I think the panel believes that there are a 
number of underlying systemic issues in terms of the workforce, 
workforce readiness, the expectations placed on the inspectors, 
a wide range of issues that need to be examined.
    It is simply not a matter of improving training for 
inspectors or simply a matter of rewriting books and handbooks. 
But rather trying to probe more deeply into why these things 
persist in event after event.
    Chairman Kline. Did NIOSH provide experts to MSHA during 
the accident investigation?
    Dr. Kohler. Yes. The agency provided some technical 
analyses, some laboratory work, and advice.
    Chairman Kline. So they were onsite or not onsite or a 
mixture?
    Dr. Kohler. Not on site.
    Chairman Kline. So they were just there to answer 
questions?
    Dr. Kohler. Or to conduct laboratory work at the Burson 
facility.
    Chairman Kline. I am just keeping with you here, Dr. 
Kohler. I am sure we are going to get to everybody else here in 
a minute.
    We were talking about mining technology a lot, ever since I 
have been on this committee. We talked about communications 
devices and safe chambers and so forth.
    One thing that has been discussed is foam rock dusting. Can 
you explain what that is and is it ready?
    Dr. Kohler. I can't speak specifically to whether or not it 
is ready. There is certainly some experimental validation that 
needs to be done before it could be applied in the mines to 
meet regulatory requirements.
    It is a newer process of applying rock dust, so that it 
adheres better to the walls of the coal without producing 
respirable dust downwind.
    It is a new process that is being advocated as an 
improvement. And I think that it--pending further study, it may 
represent an important improvement.
    Chairman Kline. Okay. Thank you very much.
    I see my time is about to expire.
    Mr. Miller?
    Mr. Miller. Thank you.
    Mr. Kohler, one of your recommendations, I believe, is to 
reevaluate the requirement of quarterly inspections of all 
mines.
    Is that correct?
    Dr. Kohler. Not exactly. No. We are not recommending that.
    The recommendation was to look more broadly at our current 
enforcement expectation or model, and to put on the table some 
ideas to begin that discussion.
    We suggested seven or eight topics. One of which is the 
number of inspections.
    The transcripts and the internal review detail a workforce 
stretched so thin that it is very difficult for them to be 
successful in their work. And so----
    Mr. Miller. By successful you mean effective?
    Dr. Kohler. Yes. And so if the resource is ineffective, 
then it begs the question how are we allocating the resources?
    Is it important? Should we be doing more or less of it?
    Mr. Miller. President Roberts, have you looked at those 
recommendations?
    Mr. Roberts. Yes, I have.
    Mr. Miller. Your opinion?
    Mr. Roberts. As some of the recommendations--and I am glad 
Dr. Kohler clarified the one on the quarterly inspections. We 
feel that those fours and twos, as they are referred to in the 
industry, are extremely important.
    Some of the other recommendations appear to be saying let 
us give more responsibility to the coal operators and mine 
management and take some of that responsibility away from MSHA.
    We would be totally opposed to that.
    And I think if we can just point to pre-1969 when that 
existed, and I would remind this panel if you go back the 40 
years preceding the 1969 Act and do the analysis of what 
happened to the 40 years after, you will find that 30,000 some 
miners lost their lives before the passage of the Mine Act. And 
less than 3,000 lost their lives 40 years afterwards.
    So we would have to say that legislation that was passed by 
Congress has saved a lot of lives. And the things that you do 
here are important.
    Mr. Miller. But in terms of this relooking at the 
inspection regime, you don't have a problem with that. In a 
sense, I assume what you are trying to determine is what is 
effective and what isn't effective. And what could be changed 
to make it more effective.
    Because obviously, you know, the record is replete with a 
series of inspections where we just end up doing more 
inspections and finding the violations over and over again.
    I mean that is the problem you heard discussed here 
earlier.
    What is the next step after that?
    But are we using the mine inspector's time in the best 
interest of creating a safer workplace?
    Dr. Kohler. Yes, and also asking the question, what can we 
do to change the fact that in internal investigation after 
internal investigation, we see a similar pattern of 
deficiency----
    Mr. Miller. Are the mine workers are part of that 
discussion?
    Mr. Roberts. The most recent recommendations or suggestions 
by the panel, no.
    Mr. Miller. Well, what happens to the follow on to this? Is 
that all internal?
    Dr. Kohler. In terms of a follow on, we are hoping that 
someone will constitute a group of people----
    Mr. Miller. Okay, so that hasn't been determined yet, 
whether----
    Dr. Kohler. No. not at all. We simply.
    Mr. Miller [continuing]. Bring in the industry. You bring 
in the mine workers and others to discuss.
    Dr. Kohler. We said that this body should include labor, 
industry, academia, government.
    Mr. Miller. President Roberts, before I run out of time 
here, three or four of us have asked the question when you have 
a bad actor, how do you get rid of the bad actor because we 
have been unable to do that to date?
    We get into a lot of penalties. We get into a lot of 
citations. We get into a lot of court actions back and forth.
    But we don't get rid of the bad actor. And the pattern 
appears to continue until there is a tragedy.
    So how do we do that?
    Mr. Roberts. I would suggest to you that the government 
charged with protecting the miners does not possess the tools 
to achieve the goals that everyone up here seems to be 
interested in achieving.
    That is if you have a Massey Energy and you have someone 
like Don Blankenship running a number of mines that are 
extremely dangerous, how do you stop that?
    Well, number one, the penalties, criminal penalties under 
the Mine Act are ridiculously low. We just saw that at Crandall 
Canyon where $500,000 for two criminal acts is all they had to 
pay. That is not even a half a day's work for production on a 
longwall.
    So the penalties are extremely low. No one is going to pay 
particular attention to that.
    I think there needs to be more severe penalties. And I 
think those penalties have to go up the ladder higher than they 
do currently.
    When we put mine foremen in jail, the person who told them 
the mine foreman what to do is still walking around free and 
clear. So we have to be able to go up the ladder, all the way 
up to the chief executive of the company if that is who is 
making these decisions and putting others at risk.
    Mr. Miller. But that is beyond a misdemeanor.
    Mr. Roberts. Oh, absolutely. That has got to be a felony. 
And it has got to be written into the law. And it doesn't exist 
right now.
    Mr. Miller. Thank you.
    Mr. Walberg [presiding]. The gentleman's time has expired.
    I recognize myself.
    Mr. Shapiro, thanks for being here.
    Your written testimony notes that OIG found Mr. Page the 
leader of MSHA's investigation team, who have used, and I 
quote--``poor judgment,'' in dealing with some of Massey's 
representatives, and that he, quote--``made statements that 
could have been perceived or interpreted as intimidating,'' 
significant statement there.
    First, can you please explain what Mr. Page said that could 
have been perceived as intimidating?
    Mr. Shapiro. Well, Mr. Page, when he discussed this matter 
with Dr. Schemel, had brought up the possibility that if the 
order was not vacated--the order that involved Dr. Reszka--if 
that order was not vacated, that there was a possibility that 
complaints would be filed against his company, against Dr. 
Schemel, against his company; that these complaints would have 
to be investigated by MSHA; that these complaints could end up 
leaving a black mark upon his reputation in the industry.
    At one point Mr. Page referred to a picture that he had 
gotten reportedly from the UMWA. And Dr. Schemel believed that 
that was a picture of--might have been a picture of him, and so 
all of this was the sort of dialogue that went on that led Dr. 
Schemel--led us to conclude that he--Dr. Schemel could have 
perceived that he was being intimidated if he did not agree to 
vacate the safety order that involved Dr. Reszka.
    As we explained inn our report, it appeared that Mr. Page 
was trying to legitimately broker a deal and try to please all 
the parties, the parties here being Performance, and the UMW, 
and MSHA.
    Because Mr. Page was legitimately concerned--and several 
people told us this, even people with Performance--legitimately 
concerned that the accident investigation would be impeded if 
MSHA had to investigate all types of safety complaints, whether 
they came from UMWA or anywhere else.
    Because they statutorily have to investigate all of these 
complaints, Mr. Page's primary objective was to complete this 
investigation, the accident investigation.
    So that was the scenario in which we concluded that there 
could have been at least a perception of intimidation by Dr. 
Schemel. But we did not conclude that that was Mr. Page's 
intent in that connotation----
    Mr. Walberg. Well, I guess in light of all that, secondly, 
can you explain your understanding of why Mr. Page was in a 
position where he was having closed door meetings with Massey's 
representatives, and making comments that could have been 
perceived as intimidating?
    Mr. Shapiro. Well, I am not sure I can answer for MSHA to 
say why he was in that position. What we were told was that an 
agreement had been reached between the Performance attorneys 
and the MSHA attorneys to vacate the order and citation of Dr. 
Reszka receive the training.
    But Mr. Page was concerned that if that occurred, if the 
order and citation were vacated, that there maybe this flurry 
of complaints that he would have to investigate, that MSHA 
would have to investigate. And therefore impede the 
investigation.
    And Mr. Page asked if I could try to sit down with Dr. 
Schemel and work this out. And that led to this meeting. He was 
advised by officials in MSHA, yes, why don't you see what you 
can do.
    Mr. Walberg. But it appears that that then indeed could 
have taken away from Mr. Page's ability to conduct the 
investigation of the explosion.
    Would you agree or wouldn't you?
    Mr. Shapiro. I am sorry. That what could have taken away?
    Mr. Walberg. That it could have taken away. These 
activities he was involved with took away from Mr. Page's 
ability to conduct investigation of the explosion.
    Mr. Shapiro. I am still not sure which activities you are 
referring to, sir.
    Mr. Walberg. The activities of Massey--being with Massey, 
involved in the closed door meetings, the intimidation 
perception that was there.
    Mr. Shapiro. Frankly, I am not sure how I see how the 
meeting itself would have taken away from his----
    Mr. Walberg. Okay.
    Mr. Shapiro [continuing]. His role as the head of the 
accident investigation.
    What he was concerned about was that complaints would be 
filed. And those complaints, those safety complaints, would 
have to be investigated and they would impede the 
investigation.
    It wasn't the meeting itself----
    Mr. Walberg. Okay.
    Mr. Shapiro [continuing]. That was the real concern.
    Mr. Walberg. I appreciate that. I think that is what--with 
lack of art--I was trying to get at there.
    Thank you very much.
    My time has expired.
    Ms. Woolsey?
    Ms. Woolsey. Thank you very much.
    So Mr. Roberts, it appears that MSHA doesn't have the power 
they need to stop the bad actors. Workers--that doesn't even 
appear--it is certain they don't.
    And workers are unable to work within their company, at 
their jobsite, and when they are the ones that know if there is 
a danger, they can't identify these hazards. They can't do 
anything about them without fear of losing their jobs.
    And Congress hasn't, as of this moment anyway, done 
anything to change this.
    Will you tell us from your perspective, as a representative 
of these workers, why don't they just walk off the job?
    Mr. Roberts. If they walk off the job, Congresswoman, they 
are going to be fired.
    And in the case--if you go back to prior to Massey selling 
these operations to Alpha, most of the mines in southern West 
Virginia were Massey mines.
    And so it is not just a matter if you were terminated at 
mine A, you just went down to mine B and got a job. You ran 
into the same employer at mine B, mine C, mine D, mine E. And 
you probably would never work in southern West Virginia again. 
You would probably have to leave the area to find a job in the 
mining industry.
    Ms. Woolsey. So----
    Mr. Roberts. It is a more sophisticated form of 
blackballing.
    Ms. Woolsey. Right. And one of the--I think we all remember 
when we were at Beckley, one of the mothers of one of the 
miners who had lost his life, she said he would come home every 
night and it was like he was unbelievable that he could drive 
home. Because by the time he got through with his day in the 
mine, the oxygen in his blood was so contaminated that he would 
flop down on the sofa and pass out.
    And she would say to him, ``Son, why don't you first go to 
your management.'' ``I can't.'' ``Then why do you keep this 
job?''
    And he said, ``Mother, there are no other jobs. And this 
is--I will--I am risking my life and I know it for this job.''
    OSHA would not allow--Dr. Kohler, OSHA would not allow an 
employer to retaliate against an employee who pointed out a 
hazard in the worksite.
    Why do you think the miners have to put up with that?
    What do we need to do to change that? Let me ask you that.
    That I guess----
    Mr. Roberts. Well, I can answer----
    Ms. Woolsey. All right----
    Mr. Roberts [continuing]. That if you would like.
    Ms. Woolsey. All right.
    Mr. Roberts. First of all I think technically the law 
supposedly protects miners. But there is the law and there is 
reality.
    Miners in southern West Virginia do not believe, or did not 
believe particularly when Don Blankenship was running these 
mines, that anybody could protect them.
    They didn't believe the governor could. They didn't believe 
this Congress could. They didn't think the president of the 
United States could keep their job or protect them from Don 
Blankenship.
    And you have to understand the type of individual this was 
who--he visited these mines. He flaunted his power and 
authority. And he was retaliatory. And he had a long, long 
history of that.
    So what you have to do if you want to prevent this in the 
future, we don't have many of these type people. I am just----
    Ms. Woolsey. I know that----
    Mr. Roberts [continuing]. I want to make sure that we are 
clear on that. Most operators don't act like this.
    Ms. Woolsey. Right.
    Mr. Roberts. But you are going to have those type people 
from time to time, and you have to protect these miners from 
them. And you have to write it in the law that the people who 
put miners in unsafe conditions, it is jail time.
    Ms. Woolsey. So had you been sitting in Secretary Main's 
seat, what would you have said we need to do?
    Mr. Roberts. Had I been sitting in Secretary Main's--let 
me--we have publicly said that this mine should have been 
closed. And there has been a debate about these situations for 
30 years now, whether MSHA really has the authority or not.
    And we said that this mine should have been closed. We 
think there could have been enough of paperwork and things, 
maybe going to court or whatever, but as has been pointed out, 
would have taken a long time.
    We need to grant whoever the assistant secretary is that 
authority. So we don't have this again.
    Because I don't think it is clear in the law that they have 
this kind of authority.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Thank you, Mr. Roberts.
    Mr. Walberg. I recognize Dr. Bucshon.
    Mr. Bucshon. Thank you.
    Dr. Kohler, NIOSH's independent panel found three critical 
events that led to the Upper Big Branch tragedy. And friction 
at the ignition at the longwall shearer--ignition of 
accumulated methane gas and then the explosion of float coal 
dust.
    Can you kind of walk us through each one of those and find 
out--and give me a kind of a synopsis of where MSHA's 
involvement and actions in respect to these, had they been done 
properly, could have prevented this?
    First let us just take friction ignition at the longwall 
shearer. Describe what that is briefly. And then tell us what 
could have been done.
    Dr. Kohler. As the cutting drum is rotating, the cutting 
drum has cutting picks on it. And those picks tear into the 
coal and to the roof rock.
    When those picks in particular strike harder roof rock, you 
create some heat. And if the bits are dull or broken, you can 
create quite a bit of heat, and you can leave up a thermal 
smear which indeed can become hot enough to ignite methane. And 
when that occurs, it is known as a frictional ignition.
    So one question: was there anything that could have been 
done to have previously detected, through enforcement action, 
to prevent the cutting drum from being in the condition it was 
found in where there were broken and missing cutter bits, and 
also in operative water sprays?
    And the panel in looking at the findings in the internal 
review decided that no, there was nothing that MSHA could have 
done in an enforcement sense to ensure that a frictional 
ignition would not have occurred.
    Mr. Bucshon. Okay, how about the methane gas?
    Okay, so let me just tell you the background. Like I said 
before, my dad was a coal miner. The last job that he had 
before he retired was as a--basically he walked around and 
checked the coal mine for methane and air quality and all that.
    He was the examiner. And so I know a little bit about that.
    What could have been done about that?
    Dr. Kohler. All right, so based on the findings of the 
accident investigations, there was an accumulation of methane 
which then ignited, probably from this frictional ignition. And 
the question is----
    Mr. Bucshon. Was that a bigger problem in the coal mine 
with their ventilation--with the way they controlled the 
airflow through their mine? I mean specifically why there was 
any accumulation.
    Were they not putting up the appropriate things to direct 
the air the way it needed to be, because I mean that is a 
bigger issue, right?
    Dr. Kohler. That is a bigger issue. And the panel I served 
on did not redo any part of the accident investigation. We 
simply used the facts that they gleaned.
    So there was an excess amount of methane that had 
accumulated. A very effective way to reduce accumulations of 
methane is through ventilating, proper ventilating air.
    There was not proper ventilating air according to the 
investigations; one of the reasons that there was improper 
ventilating air down in that area of the mine was because of a 
partial blockage in the tailgate entry from a roof fall.
    Mr. Bucshon. Now I can--sorry to interrupt, but I can tell 
you my dad, I have talked to him about this type of situation. 
As an examiner if he would have come in a previous shift and 
saw that that was improper, he would have reported that up and 
that would have been corrected, or the shift, the next shift 
couldn't come down that coal mine.
    So why--did you find out why that happened?
    Dr. Kohler. Yes. I can't speak to why the operator's 
preshift examination or the operator's personnel didn't detect 
and doing anything about that----
    Mr. Bucshon. Well, I guess my argument is they probably 
did. And the question is where--did you find where that--I 
mean, I can't imagine the examiner or whatever you call him 
today, would have not reported that. And say, hey, there is, 
you know, we don't--I mean it is pretty simple. You holdup an 
air flow meter, right, and it tells you whether the air is 
moving and which direction and----
    Dr. Kohler. Or a visual inspection. The MSHA's internal 
investigation revealed that that portion of the tailgate had 
been visited, inspected four times. And that would have been an 
opportunity to notice that there were missing supplemental roof 
supports.
    If those roof supports had been in place, it is less likely 
that there would have been such a roof fall that blocked the 
air.
    Mr. Bucshon. So I guess my final question is--and this will 
be something that--and I am not implying any impropriety 
anywhere along the line.
    But was there any evidence anywhere along the line for 
financial incentive of anyone in this process other than the 
operator, not to correct these problems?
    I mean, or that if there were problems were identified 
financial incentive not to report them properly?
    Dr. Kohler. There was nothing that we found in the internal 
review report that would suggest that.
    Mr. Bucshon. And as a follow up, do you think based on what 
MSHA--well it seems my time has expired. So I will yield back.
    Thank you.
    Mr. Walberg. Thanks for being observant.
    The gentleman from West Virginia, Mr. Rahall.
    Mr. Rahall. Thank you, Mr. Chairman.
    I thank the panel for their testimony you had this morning 
as well as you, Mr. Roberts, President Roberts, for all that 
you do for our nation's coal miners.
    I agree with you that one of the critical voices or perhaps 
you didn't say this, but I am, that's missing from today's 
hearing are those of the families of the UBB miners.
    For that reason, I would like to read a part of a statement 
that was sent to the committee by Gary and Patty Quarles, the 
parents of Gary Wayne Quarles, I am sorry, who perished at UBB. 
And then perhaps get your thoughts on it.
    Quote--``Something is going to have to be changed that 
these people that are in charge of running these mines need to 
be accountable. This is going to keep happening because our 
laws say we will protect you to these companies, not the 
miners. How many more will go unpunished because of out of date 
laws that go back to 1969? This state was afraid to touch 
Blankenship, so he was let go with however he wanted to run 
this company. My son and 28 others were just at work. They had 
no one protecting them. Please don't let their deaths be in 
vain. And let another family be destroyed.''
    This is from Mr. Quarles' letter. And I would ask unanimous 
consent that his entire letter be made a part of the record, if 
not now, at the proper time.
    [The information follows:]

        Prepared Statement of Gary and Patty Quarles, Naoma, WV

    We are the parents of Gary Wayne Quarles. He was one of the miners 
that was killed in the UBB explosion.
    Something is going to have to be changed that these people that are 
in charge of running these mines need to be accountable. When there is 
criminal conduct, they should get charged for a felony not a 
misdemeanor. This is going to keep happening, because our laws say we 
will protect you to these companies--not the miners.
    How many more will go unpunished because of out of date laws that 
go back to 1969?
    If MSHA or the state finds problems at the mines, then give them 
time to fix them. But when MSHA or the state comes back and 
unwarrantable violations remain, then there needs to be a punishment to 
the boss for not getting it fixed, and the punishment that we think 
should be, is by losing his underground papers. If that doesn't work, 
then pull the permits for the mine.
    This state was afraid to touch Blankenship, so he was let go with 
however he wanted to run this company.
    My son and 28 others was just at work. They had no one protecting 
them.
    Please don't let their deaths be in Vain! And let another family be 
destroyed.
    There was a boss at UBB, Dean Jones, that wanted to bring his crew 
out, not once but several times because they had no air.
    He was told if you do, then bring your bucket and look for another 
job.
    This man and his crew stayed because he needed his job, even if his 
life was in danger.
    Because of these men being threatened, they are now dead.
    Something also needs to protect these guys for calling someone for 
help, because there is no help out there because they are afraid of it 
getting to the company and being fired.
    We asked you to change the law to get miners protection, but it was 
shot down fast. It's up to all of you.
                                 ______
                                 
    Mr. Walberg. Without objection.
    Mr. Rahall. Thank you.
    ``There was a boss at UBB by the name of Dean Jones, who 
perished, that wanted to bring his crew out. Not once, but 
several times because they had no air. He was told if you do 
so, then bring your bucket and look for another job. This man 
and his crew stayed because he needed his job, even if his life 
was in danger. Because of these men being threatened, they are 
now dead.''
    So I know you have touched upon this already, President 
Roberts in response to an earlier question. And I know Ms. 
Woolsey brought up the situation where there are no other jobs 
and how these coal miners really need the good pay that is 
associated with working in our underground mines.
    But there is still something missing here when there is 
that production factor put over the people factor, and over the 
safety factor.
    Perhaps if--and as I said, I know you have already 
commented on the gist of this letter.
    But could you relate to us what the inspections are like in 
a union versus a nonunion mine.
    Mr. Roberts. Thank you very much, and thank you for your 
interest in health and safety for so many years, Congressman.
    I would just like to follow up on the Edward Dean Jones. I 
met his widow at the time we released our report. She is a very 
young person.
    And Mr. Jones did keep his men off the section because he 
didn't think it was safe. And for that, he was told he would be 
discharged if he didn't go up on the section and work in an 
unsafe area.
    If this management had listened to him, maybe we would have 
more people alive today. And maybe this wouldn't have happened.
    So we have good people everywhere trying to do the right 
thing. If we just gave them a little more authority and a 
little more power.
    But there is a world of difference between an inspection in 
a union mine and a nonunion mine; there are three minimum 
health and safety committee representatives of the United Mine 
Workers at every union mine.
    They travel with the federal inspectors. They travel with 
the state inspectors. And they have filed reports on their own.
    They inspect the mines themselves at least four times a 
year. And some places they inspect an entire mine every month.
    So there is another set of eyes that being a representative 
to workers in all the union mines. And that is not true at most 
nonunion mines.
    The protections that they have at the nonunion mines are to 
federal inspectors, in some instances, the state inspectors. So 
it is a world of difference.
    Mr. Rahall. Thank you for that response.
    Dr. Kohler, let me ask you.
    Do you feel that you have sufficient personnel at NIOSH and 
experienced personnel? And if so, how do you keep them with 
you?
    Dr. Kohler. Yes, the workforce challenge is spread across 
the mining industry. They are not just confined to MSHA.
    We experience them at NIOSH. The universities, the 
operators, everyone is struggling to hire and recruit talented 
personnel into mining.
    Just to give you an example, MSHA and NIOSH both compete 
for entry level mining engineers. A mining engineering student 
coming out of WVU or Virginia Tech, or University of Kentucky 
for example, starts somewhere around $65,000 to $70,000 a year.
    We can offer that same graduating student $33,000 a year. 
Now, it is easy to see the difficulty we have in competing.
    It is a big, big problem.
    Mr. Rahall. How do you suggest we remedy it besides more 
pay?
    Dr. Kohler. Yes, I think that if we want to be able to 
recruit and retain competent people, we have to have 
compensation schedules which don't necessarily match those 
available outside of the government. But they have to close the 
gap.
    Mr. Rahall. We will never be able to--the public sector 
would never be able to compete with the private sector.
    Dr. Kohler. Not fully. But if we are serious about 
recruiting and retaining quality people in these key positions, 
something has to be examined and action taken.
    Mr. Rahall. Thank you.
    Thank you, Mr. Chairman.
    Mr. Walberg. I thank the gentleman.
    I now recognize the ranking member on Workforce 
Protections, Ms. Woolsey.
    Ms. Woolsey. Thank you, for closing remarks, no doubt?
    Mr. Walberg. Yes, please. Thank you.
    Ms. Woolsey. Thank you.
    Well, it is clear that today we recognize that the entire 
system failed the miners at Upper Big Branch. Past Congresses 
should not have slashed funding for mine inspectors.
    MSHA needed to do a better job. We, the bureaucracy 
obviously needs to be scrubbed, to bring it into the 21st 
century, but they didn't do anything on purpose.
    And Massey exploited MSHA's weaknesses in the law. And they 
hurt the workers.
    This is the 21st century. Together in a bipartisan way, Mr. 
Chairman, and it is your subcommittee that I am honored to be 
the ranking member of,We have to put our heads together. We 
have to ensure that we move into the 21st century, that we 
enact meaningful reform.
    Otherwise, we are not going to be honoring the lives or the 
deaths of the 29 workers who spilled their blood in Upper Big 
Branch. And we cannot let them be forgotten.
    They should have taught us a lesson. If they didn't, then 
we are dumber than nails. And we won't go forward. We will just 
keep spinning in a circle talking about it until the next 
disaster occurs.
    I don't want that to happen. So let us work together so 
that it doesn't.
    I yield back.
    Mr. Walberg. I thank the gentlelady. And certainly there is 
a commitment to work toward fostering better results, better 
safety.
    The Mine Act, as you know, declares, and I quote from it, 
``The first priority and concern of all in the coal or other 
mining industry must be the health and safety of its most 
precious resource, the miner.''
    And I think in this room we understand that. There may be 
differences of opinion and perception of facts in the way we 
look at facts.
    Certainly, we have seen evidence today that the funding 
issue has continued to increase. Now, how that has worked out, 
there may be question how we use it.
    What bureaucratic problems we put in the way. What things 
we neglect to encourage more.
    In the opportunities we have had to visit mines together, 
we have seen some best practices that are very useful in 
promoting health and safety for workers, as well as promoting 
economic stability for the mine itself. And I think we need to 
capitalize on those things.
    I appreciate the panel here in front of me, as well as 
Director Main, Secretary Main, in being in front of us this 
morning as well.
    The questions that were brought up, comments that were 
made, are helpful to making a final--I take that back--not a 
final conclusion, but an ongoing conclusion of how we move 
forward.
    In making sure that this extremely important industry, with 
people who do things that--I have already indicated to you I am 
not a miner. I don't intend to be--other than mining for ways 
of encouraging the mining industry, and those that work in it, 
to foster a situation that moves our country forward.
    That comes by carefully looking at the problems, looking 
for solutions, and looking for ways that we can be as little--
as in the sense of being intrusive in the industry, but also 
doing the proper oversight that makes sure that we all move 
forward with safety and security.
    I think the testimonies given today, the comments made, 
will assist us in doing exactly what my ranking member said in 
working out a suitable agreement in the not too distant future.
    Having said that, there being no further business, the 
committee stands adjourned.
    [Additional submission of Mr. Andrews follows:]

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    [Additional submissions of Mr. Miller follow:]

                           ALL CITATIONS AND ORDERS ISSUED BY MSHA FOR ADVANCE NOTICE
                                         [April 1, 2010-April 12, 2012]
----------------------------------------------------------------------------------------------------------------
                                                                                Operator/Contractor    Violator
           Coal or MNM              Mine ID      Mine Name     Controller Name          Name             Type
----------------------------------------------------------------------------------------------------------------
Coal............................    4608384   Seng Creek       Alpha Natural    Elk Run Coal         Operator
                                               Powellton        Resources, Inc   Company Inc
Coal............................    4202074   Horizon Mine     America West     Hidden Splendor      Operator
                                                                Resources, Inc   Resources Inc
Coal............................    1518522   Classic Mine     Arch Coal Inc    ICG Knott County     Operator
                                                                                 LLC
Coal............................    1518771   RB #12           Ben Bennett      Manalapan Mining     Operator
                                                                                 Co., Inc
Coal............................    1512564   Straight Creek   Ben Bennett      Left Fork Mining Co  Operator
                                               #1 Mine                           Inc
Coal............................    1518547   Onton #9         Chester M        Advent Mining LLC    Operator
                                                                Thomas
Coal............................    3609549   Kimberly Run     Citicorp         RoxCoal, Inc         Operator
                                                                Venture
                                                                Capital Ltd
Coal............................    4609136   Broad Run Mine   Coalfield        Big River Mining     Operator
                                                                Transport Inc    LLC
Coal............................    4404856   Buchanan Mine    CONSOL Energy    Consolidation Coal   Operator
                                               #1               Inc              Company
MNM.............................    5400201   PROCAN           Efrain S         Productos De         Operator
                                                                Daleccio         Cantera Inc
Coal............................    3609326   4 West Mine      GenPower         Dana Mining Company  Operator
                                                                Holdings LP;     of Pennsylvania
                                                                James L          LLC
                                                                Laurita Jr
Coal............................    3609371   Mine 78          J Clifford       Rosebud Mining       Operator
                                                                Forrest III      Company
Coal............................    3608603   Tracy Lynne      J Clifford       Rosebud Mining       Operator
                                                                Forrest III      Company
Coal............................    1517903   Mine No.17       Jack H Ealy      K and D Mining Inc   Operator
Coal............................    4407275   Wilson #2        James C Justice  Virginia Fuel        Operator
                                                                II               Corporation
Coal............................    1517478   #75              James River      Blue Diamond Coal    Operator
                                                                Coal Company     Company
Coal............................    4608812   Upper Cedar      Joe Valis        Glen Alum            Operator
                                               Grove No 4                        Operations, LLC
Coal............................    4609172   Mountaineer      John B Preece    West Virginia Mine   Operator
                                               Pocahontas                        Power, Inc
                                               Mine No 1
MNM.............................    0504875   Crusher #4       John L Ary       A & S Construction   Operator
                                                                                 Co
Coal............................    1512602   Highsplint       Joseph T         Harlan Cumberland    Operator
                                               Preparation      Bennett          Coal Company LLC
                                               Plant
Coal............................    1519455   Highsplint       Joseph T         Dixie Fuel Company   Operator
                                               Strip #2 Dixie   Bennett          LLC
                                               25
Coal............................    4609244   Randolph Mine    Massey Energy    Inman Energy         Operator
                                                                Company
Coal............................    4608436   Upper Big        Massey Energy    Performance Coal     Operator
                                               Branch Mine-     Company          Company
                                               South
Coal............................    1502057   Advantage #1     Metinvest B V    Sapphire Coal        Operator
                                                                                 Company
Coal............................    4608878   Affinity Mine    Metinvest B V    Affinity Coal        Operator
                                                                                 Company, LLC
Coal............................    1517610   No 3             Minerva Ruth     MRM Mining Inc       Operator
                                                                Mead
Coal............................    4609201   Eagle #2 Mine    N/A              Appalachian          Contractor
                                                                                 Security Inc
Coal............................    4609187   No 2 Deep Mine   N/A              Ft Division Lst      Contractor
                                                                                 Trucking
Coal............................    4609073   Sugar Maple      N/A              J & N Trucking       Contractor
                                               Mine
Coal............................    4607908   Big Mountain No  Patriot Coal     Pine Ridge Coal      Operator
                                               16               Corporation      Company LLC
Coal............................    4609073   Sugar Maple      Patriot Coal     Gateway Eagle Coal   Operator
                                               Mine             Corporation      Company, LLC
Coal............................    4609201   Eagle #2 Mine    Patriot Coal     Rhino Eastern LLC    Operator
                                                                Corporation;
                                                                Rhino Resource
                                                                Partners LP
Coal............................    1518911   Mine #28         Rhino Resource   CAM Mining LLC       Operator
                                                                Partners LP
Coal............................    4608570   Coalburg No 2    Richard H        Rio Group, Inc       Operator
                                               Mine             Abraham
Coal............................    4406499   Dominion No 7    Sunoco, Inc      Dominion Coal        Operator
                                                                                 Corporation
Coal............................    4406868   No 6             Susie A Smith;   A B & J Coal         Operator
                                                                Elmer Fuller     Company, Inc
----------------------------------------------------------------------------------------------------------------
Source: MSHA.

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                                         Orgas, WV, March 29, 2012.
Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
Education and Workforce Committee, U.S. House of Representatives, 
        Washington DC 20515.
    Dear Chairman Kline and Ranking Member Miller: This letter is 
submitted to the Committee with respect to the hearing entitled 
``Learning From the Upper Big Branch Tragedy'' on March 27, 2012.
    Bear with me a moment and imagine that the following happens:
    I gather all of Congress into a room and tell you that your offices 
are being moved from the Capitol Complex. I am the new boss and this is 
what I would explain to you about your new workplace:
    ``Your new office is not like where you work now.
    First, there is a chance that an odorless gas might leak into your 
new office and it could kill you, but, just in case, I will give you a 
breathing apparatus designed to save you IF you locate it in time. One 
person will have a device that reads the levels of this gas and the 
oxygen levels but that device will only work IF he or she is actually 
using it. Let's not forget that they will be keeping records in two 
separate books, but that's just between us right?
    Next, there is a slim chance that the walls could cave in or the 
roof could collapse, but that's so remote that we won't worry about it. 
In fact, just part of the roof could cave in, but please don't concern 
yourself with that either.
    Now I know it sounds bad, but really, it's dark in there so you 
won't have to see the walls buckling and you should feel safe. I will 
provide a light for you so that you can do your job, and please ignore 
the sounds of things falling because it will only distract you from 
your job.
    No one is claustrophobic or afraid of the dark, right? And bugs, 
snakes and rats don't bother you either correct?
    Oh, and let me tell you this too, there is a chance that there 
could be an explosion. Don't get excited, I don't want to alarm you. 
That rarely happens and if it does, well, there is usually time to get 
most of you out of the building before you get trapped or die. An 
explosion is rare and is usually in a confined area of the building, so 
you could be in a pretty safe area and not be affected at all! In fact, 
you will probably be safe enough to go to the funerals of your friends. 
But you can only go to these funerals on your ``off'' time. You aren't 
allowed to go if it happens during your normal work hours.
    Now most importantly, if you should happen to see something that is 
unsafe and could endanger your life, please don't tell anyone! If you 
do, you will be fired. Your life is forfeit to me and my company. You 
just aren't as important as me as my profits. I can always find another 
person to fill your job, so if you don't like how I'm running things, 
you can just grab your jacket and leave. I'll pay you more than your 
contemporaries, but I'm not buying your loyalty or your silence. I know 
you can't work for anyone else and make this kind of money. Go ahead--
try and survive and support your family without this job and this 
paycheck. Not that it's all about money, right?''
    I know this sounds like a poorly written script for a B-Movie. And 
it's too weird to be fiction, isn't it?
    I doubt there is even one member of Congress who would even think 
about working in the environment described above and yet they want 
every coal miner to work in these conditions and under the threat of 
silence. If it's too good for the members of Congress, why is it 
expected and allowed for coal miners?
    And do you want to know what's worse? Knowing that the person you 
love is going into that situation every day, every shift and while 
there, they are demeaned and devalued and that black rock is more 
important than their safety and their life.
    What makes this worse yet is that some members of Congress are very 
aware of this because they are sitting in Congress simply because Mr. 
Blankenship ``donated them into office''. I hope you are ashamed--you 
know who you are. I hope you never know the fear that a spouse feels 
when they watch their loved one leave the house to begin a shift in a 
mine. It paralyzes the soul and yet there is NOTHING any spouse can do 
but pray for their loved one's safety.
    When April 5, 2010 exploded into my life (pun intended), I needed 
my husband to hold me while I shook uncontrollably, comfort me, to tell 
me things would be ok and to give me mental strength when I thought I 
would snap. But he couldn't do that because he was at that mine, dying 
on the inside and changing into a man who is tortured every single day 
he is alive.
    I have watched an active, healthy outdoorsman disappear into 
himself and disconnect with the world and stop doing the things that 
made him happy. I've watched him stop caring about himself, stop caring 
about hunting and fishing, stop caring about his kids, me, stop caring 
about his life. I do my best to comfort him when he awakes from 
nightmares or breaks down when he's assaulted by memories of that day.
    Massey Energy killed the man I love on a level that most people 
don't understand. His body is here, but he is not the same man. He's 
changed simply because the poorly written script from above wasn't 
fiction for him. This was his reality every day and it killed his 
spirit.
    I want to ask Congress why it is okay that conditions are allowed 
to be this way. Why can't Congress see it's not Democrat against 
Republican? Isn't it your job? Weren't you elected, in part, to protect 
Americans?
    Stop looking to each other and pointing fingers to distract the 
public from the real situation that occurred at Upper Big Branch Mine 
April 5, 2010. Massey Energy ignored the laws. Mr. Blankenship 
flagrantly flaunted his power and did as he pleased to insure huge 
profits and put lives in danger for that profit.
    It's time for our Congress, and that's everybody's Congress--we 
voted for you, to unite and regain your power to make stronger laws to 
protect miners who put their lives in danger every shift produce coal 
for the American economy.
    Let's be honest, Massey imploded due to their own self-important 
leader, but Congress needs to take on the role of leaders again. You 
need to make the changes you were elected to make to keep AMERICANS 
safe. It's too late for my husband, it's too late for the 29 men who 
died April 5, 2010, it's too late for the countless family members who 
lost someone in the mines. But it's not too late for the men and women 
who are working now and it's not too late for future miners many of 
whom are our children.
    My husband begged you to put aside partisanship to make changes 
when he spoke before Congress and I'm begging you now to follow through 
on the promises you made to the American people to work together for 
the safety of American workers, most particularly miners.
                                             Mindi Stewart,
                    wife of UBB Survivor Stanley ``Goose'' Stewart.
                                 ______
                                 

                    MSHA News Release, Feb. 29, 2012

          MSHA Announces Results of January Impact Inspections

    Arlington, VA--The U.S. Department of Labor's Mine Safety and 
Health Administration today announced that federal inspectors issued 
253 citations, orders and safeguards during special impact inspections 
conducted at 12 coal mines and four metal/nonmetal mines last month. 
The coal mines were issued 171 citations, 15 orders and two safeguards, 
while the metal/nonmetal operations were issued 64 citations and one 
order.
    These inspections, which began in force in April 2010 following the 
explosion at the Upper Big Branch Mine, involve mines that merit 
increased agency attention and enforcement due to their poor compliance 
history or particular compliance concerns, including high numbers of 
violations or closure orders; frequent hazard complaints or hotline 
calls; plan compliance issues; inadequate workplace examinations; a 
high number of accidents, injuries or illnesses; fatalities; and 
adverse conditions such as increased methane liberation, faulty roof 
conditions and inadequate ventilation.
    As an example from last month, on Jan. 13, an impact inspection was 
conducted during the second shift at Perry County Coal Corp.'s E4-1 
Mine in Perry County, Ky. The inspection team, which captured and 
monitored the phones to prevent advance notice of its arrival, issued 
35 citations and three orders. The mine's last impact inspection, 
conducted in May 2011, had resulted in 27 citations and one order.
    Following January's inspection, the mine was issued unwarrantable 
failure orders for noncompliance with the ventilation plan by failing 
to maintain a sufficient air volume at the end of the wing curtain when 
more than 18 inches of rock is being mined. (A wing curtain is a piece 
of flame-resistant brattice cloth used to direct air current to 
temporarily ventilate faces, seals or other areas of the mine.) This 
violation exposed miners to the risk of silicosis, black lung and a 
potential explosion. The mine operator also failed to control draw rock 
that extended from 32 crosscuts outby to the working face 
(approximately 2,080 feet), which exposed miners to the risk of being 
struck, injured or killed by pieces of falling roof. The mine operator 
further failed to maintain a scoop in permissible condition so that it 
was not a potential ignition source for explosive gasses as well as to 
conduct an adequate weekly examination of the same scoop.
    Inspectors also found that the primary and secondary escapeways, 
along with required lifelines, were improperly maintained, which could 
severely hamper miners' efforts to evacuate the mine in the event of an 
emergency.
    As a second example from last month, on the same day, MSHA 
conducted an impact inspection during the second shift at K and D 
Mining Inc.'s Mine No. 17 in Harlan County, Ky. The inspection team, 
which captured and monitored the mine phones, issued 21 citations and 
seven orders. The last impact inspection conducted at this mine had 
occurred in August 2010, resulting in 14 citations and six orders.
    During January's visit, inspectors observed eight conditions that 
were the result of unwarrantable failures by the mine operator. Six 
involved failure to maintain the conveyer belts in safe operating 
condition and accumulation of combustible materials along the belt 
lines. Two belt lines were found to have missing or stuck rollers, 
causing friction and creating the potential for an ignition. 
Accumulations of combustible material were found along three belt 
lines, which are required to be examined at each shift.
    Two 104(d) withdrawal orders were issued for the mine operator's 
failure to conduct an adequate exam of the section power center, which 
was found to be improperly maintained. Inspectors found evidence of 
severe arcing between receptacles on the power center, as well as on 
the male plugs of electrical equipment.
    The mine operator also failed to comply with the roof control plan, 
according to inspectors. They observed a hill seam (rock fissure) that 
was tied in with several stress cracks. The hill seam and stress cracks 
extended across the pillar line for a distance of approximately 115 
feet. The mine operator had not installed additional support as 
required by the roof control plan.
    ``While the impact inspection program has resulted in improved 
compliance in mines across the country, the seriousness of the 
violations found at these two operations demonstrates why targeted 
enforcement continues to be necessary to protect the health and safety 
of miners,'' said Joseph A. Main, assistant secretary of labor for mine 
safety and health.
    Since April 2010, MSHA has conducted 403 impact inspections, which 
have resulted in a total of 7,162 citations, 718 orders and 26 
safeguards.

    Editor's note: A spreadsheet containing the results of impact 
inspections in January 2012 accompanies this news release.
                                 ______
                                 

         U.S. Department of Labor News Release, March 28, 2012

         MSHA: Advance Notification of Federal Mine Inspectors
                        Still a Serious Problem

    Arlington, VA--Despite stepped-up enforcement efforts over the past 
two years by the U.S. Department of Labor's Mine Safety and Health 
Administration, some mine operators continue to tip off their employees 
when federal inspectors arrive to carry out an inspection. The Federal 
Mine Safety and Health Act of 1977 specifically prohibits providing 
advance notice of inspections conducted by MSHA.
    There have been several recent instances in which MSHA has been 
able to detect the occurrence of advance notice. For example, on March 
22, agency inspectors responded to a hazard complaint call about 
conditions at Gateway Eagle Coal Co. LLC's Sugar Maple Mine in Boone 
County, W.Va. A truck driver with J&N Trucking reportedly alerted mine 
personnel by citizens band radio of the inspectors' arrival. The 
inspection turned up 14 violations for advance notification, 
accumulations of combustible material, and inadequate preshift and on-
shift examinations, as well as a failure to comply with the current 
ventilation plan, maintain the lifeline, maintain permissibility of 
mobile equipment and maintain fire fighting equipment.
    As a second example, during a Feb. 29 inspection at Rhino Eastern 
LLC's Eagle No. 2 Mine in Wyoming County, W.Va., a dispatcher's 
decision to shut down the belts prompted a call from the section 
foreman about his actions. The dispatcher responded that an MSHA 
inspector was at the mine. During this inspection, three citations were 
issued for failure to comply with the roof control and ventilation 
plans. In addition, a citation was issued to Applachian Security, a 
contractor, for providing advance notification of the MSHA inspection. 
Rhino Eastern's Eagle No. 1 Mine was placed on potential pattern of 
violations status in November 2010 and again in August 2011 after a 
miner was killed in a rib collapse, and the mine's compliance record 
deteriorated.
    A third example is from Feb. 13, when the dispatcher for Metinvest 
B V's Affinity Mine in Raleigh County, W.Va., notified the belt foreman 
over the mine telephone that federal and state inspectors were headed 
underground. The mine operator was issued a citation and, to abate it, 
MSHA required that all certified foremen and dispatchers be trained in 
the requirements of the Mine Act regarding advance notification, and 
that a notice be conspicuously posted in the mine office to ensure 
future compliance with the Mine Act.
    ``Providing advance notice of an inspection is illegal,'' said 
Joseph A. Main, assistant secretary of labor for mine safety and 
health. ``It can obscure actual mining conditions by giving mine 
employees the opportunity to alter working conditions, thereby 
inhibiting the effectiveness of MSHA inspections. Furthermore, it 
appears that current penalties are not sufficient to deter this type of 
conduct.''
    Upper Big Branch Mine superintendent Gary May recently entered into 
a plea agreement with the U.S. Department of Justice, admitting to 
conspiracy to give advance notification of mine inspections, falsify 
examination of record books and alter the mine's ventilation system 
before federal inspectors were able to inspect underground. May 
testified that, through these unlawful practices, the mine operator was 
able to avoid detection of violations by federal and state inspectors.
    ``Despite the attention to the issue that has resulted from the 
Upper Big Branch investigation and recent testimony from Gary May, 
advance notice continues to occur too often in the coalfields,'' said 
Main. ``Upper Big Branch is a tragic reminder that operators and miners 
alike need to understand advance notice can prevent inspectors from 
finding hazards that can claim miners' lives.''
                                 ______
                                 
    [Questions submitted for the record and their responses 
follow:]

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  Assistant Secretary Main's Response to Questions Submitted for the 
                                 Record

                   question from representative noem
    1. Assistant Secretary Main, in October 2011 you stated that the 
Mine Safety and Health Administration (MSHA) was working with the 
Federal Railway Administration (FRA) on a Memorandum of Agreement (MOA) 
to clarify jurisdictional issues for operators when a railroad carrier 
enters mine property or has facilities and equipment on mine property. 
What is the status of the MOA?

    Mr. Main: MSHA expects to execute an MOA with the FRA over the next 
couple of months. We know that an agreement between the two agencies is 
of great interest to many members of Congress; please be assured that 
MSHA is working diligently with the FRA to finalize an MOA that 
properly reflects the jurisdictional authority of each agency, as 
defined by our respective governing statutes.
                  questions from ranking member miller
    2. According to the MSHA Upper Big Branch (UBB) Internal Review, a 
lack of inspector experience allowed violations at the mine to go 
undetected. You testified that more than half of MSHA's inspectors were 
hired after 2006, and due to the lack of staff, MSHA District 4 (which 
covers southern West Virginia) employed only 2 ventilation specialists 
at times during the 18 month period prior to the UBB explosion. The 
average experience level for enforcement personnel dropped from 12 
years to only 5 years between FY 2005 and FY 2010. In light of MSHA's 
findings in the Internal Review and the consequences of an experience 
gap, please address each of the following:
    A. Please provide the number of mine inspectors, supervisors and 
technical specialists MSHA estimates will be eligible to retire during 
FY 2013 and FY 2014.

    Mr. Main: In FY 2013, 350 Coal and Metal Non Metal inspectors, 51 
engineers (technical specialists) and 146 supervisors will be eligible 
for retirement. Our estimates for FY2014--432 Coal and Metal Non Metal 
inspectors, 62 engineers and 166 supervisors--include the FY 2013 
numbers. However, based on historical attrition data, MSHA expects that 
only about 20 percent of the employees who are eligible to retire 
actually retire in the year they become eligible.

    B. What steps is MSHA taking in succession planning, including with 
respect to identifying future resource requirements, to ensure that the 
agency does not have a shortage of trained enforcement personnel and 
technical specialists as its more experienced and older personnel 
retire. When will MSHA's succession plan be completed?

    Mr. Main: MSHA has been engaged in planning for the Agency's future 
for a number of months. This planning has included a consideration of 
the UBB Internal Review Report's findings on MSHA's staffing 
deficiencies. The draft FY 2012-2016 Succession Management Plan goes 
beyond a succession planning approach that focuses on simply replacing 
individuals, and instead engages in broad, integrated succession 
planning and management efforts that focus on strengthening both 
current and future organizational capacity. The draft plan uses a 
systematic approach to filling our mission-critical occupations and key 
leadership positions over the next several years.
    The plan includes a detailed workforce analysis to project levels 
of attrition in our enforcement programs looking out five years. In 
addition, in order to find gaps in our workforce, managers in each 
program identified trends likely to affect their programs' delivery of 
services, and we reviewed data describing the competencies that our 
workforce needs to address. The draft plan is in the final stages of 
review and we anticipate a summer 2012 completion.

    C. Do personnel rules allow MSHA mine inspectors to earn more than 
MSHA technical specialists (such as engineers), because unlike 
technical specialist mine inspectors are able to earn overtime pay and 
engineers do not? What can MSHA do to more effectively compete with 
private industry which can lure and hire away from MSHA experienced 
ventilation and roof control engineers because they can afford more pay 
and better benefits. What retention tools are available to MSHA? Are 
there gaps in these tools MSHA needs to solve this problem?

    Mr. Main: Mine Inspectors are generally entitled to standard 
overtime compensation under the Fair Labor Standards Act, while 
engineers generally are not. The U.S. Office of Personnel Management 
(OPM) administers the provisions of the Fair Labor Standards Act with 
respect to Federal employees. A non-exempt determination for engineers 
therefore may require coordination with OPM. We are in discussions 
within the Department of Labor to determine our options for a possible 
non-exempt determination for specific engineering positions within 
MSHA.
    MSHA is expanding its recruitment efforts at various universities 
and colleges, including engineering schools, to attract potential 
candidates. This collaborative effort between MSHA's Human Resources 
Department, Office of Diversity and Equal Opportunity, and program 
areas will enhance the ability to attract and retain a diverse and 
highly qualified pool of candidates to fill mission-critical 
occupations. In the past, MSHA has not taken full advantage of the 
recruitment and retention tools at its disposal. However, MSHA is now 
increasing its utilization of recruitment and retention incentives--
such as relocation incentives and recruitment and location bonuses--
that Congress provided to enable the Federal agencies to address 
exceptional needs to recruit, retain, and relocate essential employees 
for critical positions. MSHA also has the ability to offer students 
loan repayments and intends to use this tool in our efforts to recruit 
those still in school.

    3. Between 2006 and 2010, contested citations in District 4 rose 
from 339 to 19,618, according to the Internal Review. Because the 
District 4 office was understaffed, it was unable to manage this 
increased paper flow, and filing deadlines were sometimes missed. 
Missed MSHA deadlines led to additional litigation. In light of the 
Internal Review's findings and concerns about the staffing level of 
MSHA's District 4 operations, please address each of the following:
    A. Are District 4 and the newly created District 12 staffed 
adequately at this time to manage the flow of enforcement-related 
paperwork and meet filing deadlines? If not, what additional resources 
are needed?

    Mr. Main: The UBB disaster underscored the need to address the 
growing backlog of contested cases at the Federal Mine Safety and 
Health Review Commission (FMSHRC), especially those cases in District 
4. I cannot overstate the importance of the continued funding that 
Congress is providing DOL to resolve this backlog.
    MSHA has made a number of changes that are also helping in managing 
contested cases. In June, 2011, MSHA split District 4 into four 
separate districts. This has enabled us to divide the caseload among 
those districts and increase the size of our staff handling these 
cases. As of March 31, 2012, District 4 had four Conference Litigation 
Representatives (CLRs) and two clerks; District 12 had two CLRs and two 
clerks. There is currently an opening for another CLR in District 12. 
MSHA has already selected a candidate to take that position and is in 
the final stages of hiring that individual. Once this position is 
filled, MSHA will have twice as many CLRs in the Southern West Virginia 
area as it did in the months leading up to UBB.
    In addition, MSHA has hired two full-time coordinators located in 
Headquarters to manage the Alternative Case Resolution (ACR) program in 
the Districts. The coordinators have been identifying districts with 
the greatest backlogs, allowing us to transfer a significant number of 
cases in these districts to the backlog project. In April and the first 
part of May, Districts 4 and 12 will have transferred 250 cases. 
Finally, Alpha Natural Resources has withdrawn its contest of over 
4,416 violations (754 cases) involving legacy Massey companies pending 
in Districts 4 and 12, and paid over $15 million in assessed penalties 
(the full amount assessed). As a result of these actions, District 4 
and District 12 have the current ability to manage the flow of 
enforcement-related paperwork and meet filing deadlines. Without the 
continuation of backlog funding from Congress, it is unlikely that 
District 4 and 12 would be able to manage their case load.

    B. Do any other MSHA Districts have staff shortages that impair 
their ability to manage the flow of enforcement-related paperwork and 
meet filing deadlines? If so, which Districts are impacted?

    Mr. Main: At their current staffing levels, and because they have 
also been able to transfer cases to the backlog project, the other MSHA 
districts are able at this time to manage the flow of enforcement-
related paperwork and meet filing deadlines. Any reduction in funding 
or staffing levels would seriously compromise the Districts' ability to 
meet their deadlines. Continuing the funding provided through Congress 
is essential and allows MSHA to maintain proper staffing of CLRs and 
support staff to effectively address the contested cases.

    4. Does the Robert C. Byrd Mine Safety Protection Act (H.R. 1579) 
meet MSHA's stated need for additional enforcement authority and tools 
to prevent mine disasters such as the Upper Big Branch tragedy? If not, 
what additional tools are needed?

    Mr. Main: As I testified at the March 27, 2012 hearing, since the 
tragedy at UBB, MSHA has learned how to better use all of its available 
tools and strategies to fully enforce the Mine Act--including targeted 
enforcement, regulatory reforms and compliance assistance. Since April, 
2010, MSHA has conducted over 420 impact inspections of mines that 
merit increased agency attention and enforcement due to their poor 
compliance history or particular compliance concerns. During many of 
these inspections, MSHA monitored the phones so that those underground 
cannot be notified to clean up hazards before MSHA inspectors have an 
opportunity to observe them. Sadly, we are finding that there are still 
operators who continue to flout the law and put miners at risk.
    MSHA cannot be at every mine all the time, and as we have learned 
from various investigations into UBB, even when MSHA is present at a 
mine, a determined operator that intimidates miners and willfully 
engages in a pattern of subterfuge will be at least partially 
successful in hiding hazardous conditions and practices from MSHA, with 
potentially tragic results. We need to change the culture of safety in 
some parts of the mining industry, so that operators are as concerned 
about the safety of their miners when MSHA is not looking over their 
shoulders as when MSHA is there.
    The Robert C. Byrd Mine Safety Protection Act contains provisions 
that address these gaps in MSHA's enforcement powers.
    Upon request by members of Congress, including members of this 
Committee, we have provided and will continue to provide technical 
assistance for this and other mining legislation. It is imperative that 
Congress enact legislation that gives MSHA the additional tools it 
needs to improve the health and safety of all the nation's miners.
                                 ______
                                 

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [Editor's Note: As of September 26, 2012, there has been no 
response to questions submitted from Dr. Kohler.]
    [Whereupon, at 12:52 p.m., the committee was adjourned.]

                                 
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