[Senate Hearing 112-782]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-782
 
                 A TRAGIC ANNIVERSARY: IMPROVING SAFETY

                   AT DANGEROUS MINES ONE YEAR AFTER 

                            UPPER BIG BRANCH
=======================================================================




                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                                   ON

EXAMINING IMPROVING SAFETY AT DANGEROUS MINES ONE YEAR AFTER UPPER BIG 
                                 BRANCH

                               __________

                             MARCH 31, 2011

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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





                  U.S. GOVERNMENT PRINTING OFFICE
81-653                    WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland
JEFF BINGAMAN, New Mexico
PATTY MURRAY, Washington
BERNARD SANDERS (I), Vermont
ROBERT P. CASEY, JR., Pennsylvania
KAY R. HAGAN, North Carolina
JEFF MERKLEY, Oregon
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
SHELDON WHITEHOUSE, Rhode Island
RICHARD BLUMENTHAL, Connecticut

                                     MICHAEL B. ENZI, Wyoming
                                     LAMAR ALEXANDER, Tennessee
                                     RICHARD BURR, North Carolina
                                     JOHNNY ISAKSON, Georgia
                                     RAND PAUL, Kentucky
                                     ORRIN G. HATCH, Utah
                                     JOHN McCAIN, Arizona
                                     PAT ROBERTS, Kansas
                                     LISA MURKOWSKI, Alaska
                                     MARK KIRK, Illinois
                                       

                    Daniel E. Smith, Staff Director

                  Pamela Smith, Deputy Staff Director 

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)



                            C O N T E N T S

                               __________

                               STATEMENTS

                        THURSDAY, MARCH 31, 2011

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
    Prepared statement...........................................     3
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     4
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    31
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky.......    34
Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................    35

                            Invited Senators

Rockefeller, Hon. John D., IV, a U.S. Senator from the State of 
  West Virginia, prepared statement..............................     7
Manchin, Hon. Joe, III, a U.S. Senator from the State of West 
  Virginia.......................................................    29

                               Witnesses

Main, Joe, Assistant Secretary, U.S. Department of Labor, Mine 
  Safety and Health Administration, Arlington, VA................     9
    Prepared statement...........................................    11
Lewis, Elliot P., Assistant Inspector General, U.S. Department of 
  Labor, Office of the Inspector General, Washington, DC.........    20
    Prepared statement...........................................    21

                                 (iii)


                 A TRAGIC ANNIVERSARY: IMPROVING SAFETY


           AT DANGEROUS MINES ONE YEAR AFTER UPPER BIG BRANCH

                              ----------                              


                        THURSDAY, MARCH 31, 2011

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m. in Room 
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Enzi, Blumenthal, Isakson, Paul, 
and Manchin.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Health, Education, Labor, and 
Pensions committee will please come to order.
    Almost a year ago, this committee met in the wake of the 
worst mining accident our history has seen in decades. On April 
5, 2010, 29 miners were killed in an explosion at Massey 
Energy's Upper Big Branch Mine in West Virginia.
    One of the most devastating aspects of the disaster was the 

overwhelming sense that the explosion was not an unfortunate 
incident, but an accident waiting to happen. The mine had a 
long 
history of rampant safety violations.
    Members of this committee were rightly concerned that this 
dangerous mine had not been given more rigorous oversight, and 
that the procedures we had enacted to target mines with 
repeated 
safety violations had not been effective in putting this mine 
back on track.
    We told Mr. Joe Main, at that time, the newly-appointed 
head of the Mine Safety and Health Administration, that we 
expected him to use every tool in his arsenal to make sure a 
disaster like Upper Big Branch never happens again. Now, we are 
revisiting this 
devastating event 1 year later to explore what we've learned, 
what changes have been made, and what further reforms may be 
needed to ensure that all miners can come home safely at the 
end of their shifts.
    Much of the underlying evidence from the Upper Big Branch 
investigation cannot be released at this time, I understand, 
due to a pending criminal investigation. Nonetheless, solely 
looking at what has been publicly released so far, we already 
know why the 29 miners were killed in the explosion.
    Small methane ignitions happen frequently in mines, but 
unlike Upper Big Branch, they do not cause massive explosions. 
With properly maintained conditions, those small methane 
ignitions are relatively harmless.
    At Upper Big Branch, large quantities of coal dust, which 
were allowed to accumulate in violation of safety laws, turned 
the small ignition into a massive explosion. That is why people 
died. We also have strong reason to suspect that there were 
active efforts to 
prevent safety inspectors from doing their job at the mine. 
Last year we heard testimony from one witness, miner Jeffrey 
Harris, that safety laws were followed at Massey mines only 
when inspectors were present.
    We have also learned of at least one criminal indictment 
that's been issued accusing a high-level Massey official of 
providing 
illegal advance warnings when inspectors were about to enter a 
mine.
    Now, while obviously this is an indictment, not a 
conviction, it does lend some credence to Mr. Harris's 
testimony that ignoring safety procedures was the norm, and not 
the exception, at Upper Big Branch and at other Massey mines.
    Finally, we know that the tools in the law that are 
supposed to address situations like this, where an operator is 
repeatedly and flagrantly disregarding safety rules were not 
and they do not seem to be working. The pattern of violation 
process is supposed to 
target the worst actors. But as the Department of Labor's 
Inspector General has found, in the 32 years since Congress 
created this process, no mine has ever been placed on POV 
status, largely 
because MSHA has spent decades creating obstacles to prevent 
this process from working effectively.
    Fortunately, over the past year since Upper Big Branch, 
MSHA has taken wide-ranging efforts to find problems in our 
mine safety enforcement and to fix them. From the 
implementation of an 
aggressive impact inspection program, to an attempt to 
eradicate Black Lung disease once and for all, Assistant 
Secretary Main has taken an aggressive, comprehensive approach 
to miner safety.
    I look forward to hearing about those efforts, and how they 
will allow MSHA to function more effectively. I am also 
impressed that MSHA seems to have acted so quickly to fix the 
substantial 
problems that have often crippled the agency. Last year, for 
example, MSHA submitted a report to us and this committee on 
the 
inadequate review of citations and assessment of the gravity of 
those citations by supervisors. MSHA responded by improving its 

training program, and I intend to continue to monitor the 
effectiveness of this.
    But in this situation, as with many of the challenges 
facing our mine safety programs, I do not share the view that 
Congress is 
absolved of its responsibility to legislate as a result of 
action by the agency.
    Last year after the tragedy we began bipartisan efforts to 
explore possible mine safety legislation. Unfortunately, we 
were not able to find enough common ground at the time to move 
forward. But now, with new information about the tragedy and 
new efforts by MSHA leading the way, I hope we can restart that 
process and make real progress.
    To honor the 71 miners whose lives were lost last year, 
both at Upper Big Branch and around the country, we must 
rededicate ourselves to building a safer future for everyone 
who goes to work each day in America's mines.
    [The prepared statement of Senator Harkin follows:]

                  Prepared Statement of Senator Harkin

    Almost a year ago, this committee met in the wake of the 
worst mining accident our country has seen in decades. On April 
5, 2010, 29 miners were killed in an explosion at Massey 
Energy's Upper Big Branch mine in West Virginia. One of the 
most devastating aspects of the disaster was the overwhelming 
sense that the explosion was not an unfortunate incident, but 
an accident waiting to happen. The mine had a long history of 
rampant safety violations, and there was strong evidence that 
the operator was putting profits over workers' lives.
    Members of this committee were rightly concerned that this 
dangerous mine had not been given more rigorous oversight, and 
that the procedures we had enacted to target mines with 
repeated 
safety violations had not been effective in putting this mine 
back on track. We told Joe Main, the newly-appointed head of 
the Mine Safety and Health Administration, that we expected him 
to use every tool in his arsenal to make sure a disaster like 
Upper Big Branch never happens again.
    Now, we are revisiting this devastating event 1 year later 
to 
explore what we've learned, what changes have been made, and 
what further reforms are needed to ensure that all miners can 
come home safely at the end of their shifts.
    Much of the underlying evidence from the UBB investigation 
cannot be released at this time due to a pending criminal 
investigation. Nonetheless, solely looking at what has been 
publicly released so far, we already know why the 29 miners 
were killed in the 
explosion. Small methane ignitions happen frequently in mines, 
but unlike Upper Big Branch, they do not cause massive 
explosions. With properly maintained conditions, those small 
methane 
ignitions are relatively harmless. At UBB, large quantities of 
coal dust--which were allowed to accumulate in violation of 
safety laws--turned the small ignition into a massive 
explosion. That is why people died.
    We also have strong reason to suspect that there were 
active 
efforts to prevent safety inspectors from doing their job at 
the mine. Last year we heard testimony from one witness, miner 
Jeffrey Harris, that safety laws were followed at Massey mines 
only when inspectors were present. We have also learned of at 
least one criminal indictment that has been issued accusing a 
high-level Massey official of providing illegal advance 
warnings when inspectors were about to enter a mine. While 
obviously this is a criminal indictment, not a conviction, it 
lends credence to Mr. Harris's testimony that ignoring safety 
procedures was the norm, not the exception, at Upper Big Branch 
and other Massey mines.
    Finally we know that the tools in the law that are supposed 
to address situations like this--where an operator is 
repeatedly and flagrantly disregarding safety rules--were not 
and are not working. The pattern-of-violation process is 
supposed to target the worst 
actors. But as the Department of Labor's Inspector General has 
found, in the 32 years since Congress created this process, no 
mine has ever been placed on POV status, largely because MSHA 
has spent decades creating obstacles to prevent this process 
from 
working effectively.
    Fortunately, over the past year since Upper Big Branch, 
MSHA has taken wide-ranging efforts to find problems in our 
mine safety enforcement and to fix them. From the 
implementation of an aggressive impact inspection program to an 
attempt to eradicate Black Lung disease once and for all, 
Assistant Secretary Main has taken an aggressive, comprehensive 
approach to miner safety. I look forward to hearing about those 
efforts, and how they will allow MSHA to function more 
effectively.
    I am impressed that MSHA seems to have acted so quickly to 
fix the substantial problems that have often crippled the 
agency. Last year, for example, MSHA submitted a report to me 
on the inadequate review of citations and assessment of the 
gravity of those citations by supervisors. MSHA responded by 
improving its training program. I intend to continue to monitor 
the effectiveness of MSHA's response. But in this situation--as 
with many of the challenges facing our mine safety programs--I 
do not share the view that Congress is absolved of its 
responsibility to legislate as a result of action by the 
agency.
    Some commentators have suggested that there is a dichotomy 
in Congress between those who believe that MSHA needs expanded 
powers, and those who believe that MSHA has all the powers it 
needs but just isn't using them effectively. I think that's 
exactly the wrong way to look at the issue. The question is 
not: did or didn't MSHA have the tools to prevent Upper Big 
Branch. The question is: what do all of us need to do to 
prevent the next disaster? I have never believed that either 
MSHA needs to fix the regulatory process or we need to pass new 
mine safety legislation. That is a false choice. Instead, we 
need to both improve the regulatory structure and pass 
legislation to improve mine safety.
    With congressional oversight, MSHA has taken important 
steps to find problems and fix them. We need to ensure that 
those efforts continue. In addition, I look forward to hearing 
from the witnesses about the additional steps that Congress can 
take to improve mine safety. Almost 1 year after Upper Big 
Branch, we now have sufficient information to make intelligent 
reforms to our mine safety laws, and we shouldn't waste any 
time in doing so.
    Last year, after the tragedy, we began bipartisan efforts 
to explore possible mine safety legislation. Unfortunately, we 
were not able to find enough common ground at the time to move 
forward. But now--with new information about the tragedy and 
new efforts by MSHA leading the way--I hope we can restart that 
process and make real progress. To honor the 71 miners whose 
lives were lost last year, both at Upper Big Branch and around 
the country, we must rededicate ourselves to building a safer 
future for everyone who goes to work each day in America's 
mines.
    With that I'll turn to Senator Enzi for his opening 
statement.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman, and good morning.
    This hearing marks a very tragic anniversary. As the 
Chairman mentioned, it was a year ago today, 29 West Virginia 
miners went to work in difficult jobs to provide for their 
families and fuel our Nation's economy when they were lost in a 
single accident.
    The families of those men have had to sacrifice too much, 
but just as they have no doubt found ways to honor their loved 
one's memory over the past year, I believe the safety of mining 
in America will improve because of this accident and a life 
somewhere will be saved because of their loss.
    Since we do not yet have an official report on the cause of 
the Upper Big Branch tragedy, the Chairman has called this 
hearing to focus on general mine safety issues. I appreciate 
the appearance of Assistant Secretary Joe Main and Elliot Lewis 
from the Inspector General's Audit office to testify about this 
Administration's effort to improve mine safety.
    Frankly, some of the news coming out of the Administration 
is not encouraging. Since the accident last year we have 
learned that MSHA knew of problems at Upper Big Branch and 
failed to use the full extent of its authority to improve 
safety there. The Upper Big Branch mine was even slated to be 
put on a proposed Pattern of Violation notice for increased 
enforcement, but a computer glitch at MSHA eliminated the 
warning.
    Two Inspector General reports have highlighted major 
concerns about MSHA's dysfunctional pattern of violations 
process and concerns about the quality of training MSHA 
inspectors receive. I look forward to hearing more about those 
reports from Mr. Lewis this morning.
    I was also disturbed to read about a report sent from 
MSHA's Office of Accountability to you, Mr. Chairman, in your 
capacity as Chairman of the Labor, Health and Human Services 
Appropriations Subcommittee. That was sent on March 25, 2010. I 
read about this report in the newspaper earlier this month and 
saw that it found inadequate inspection documentation and 
citation writing in a vast majority of the field offices 
audited, as well as failure to complete required inspections in 
some mines with high methane liberation.
    The problems this report exposed are exactly the concerns I 
spoke about at last year's hearing on this accident and tried 
to address in mine safety discussions with many Senators on 
today's panel last summer. It is difficult to understand why 
this report has not been shared with the group working on mine 
safety. I understand that Chairman Kline has an outstanding 
request for all of the reports the Office of Accountability has 
produced and I will be joining him in that request today.
    My concern then, and even more so now that I have read this 
appropriations report, is that MSHA has an outsized mandate. 
The Mine Act does not allow MSHA the flexibility that the 
Occupational Safety and Health Administration, OSHA, has to 
focus on bad actors and requires a burdensome citation writing 
process for every single violation of a standard, no matter how 
minor.
    Taxpayers have spent thousands of dollars training MSHA 
inspectors to identify serious, life-threatening hazards and 
uncover malfeasance. Why do we send them around to the safest 
mines on the planet multiple times a year to write citations 
for unflushed toilets and trash can lids that are ajar?
    This is a serious question that I hope we can explore 
together.
    I visited one mine last year and the snow was falling and 
it was about a quarter of an inch, and it was quickly melting, 
but an employee was trying to shovel it. It was too wet and too 
little to sweep or to shovel. The reason they were doing it? 
Just a week before they had gotten a written citation under the 
same circumstances.
    In my home State of Wyoming, the mining industry and the 
jobs and energy it supports are critical. The industry supports 
about 43,000 jobs in Wyoming, both directly and indirectly. 
Mining jobs are good jobs that pay, on average, 86 percent 
higher than the average wage in the State. These jobs will 
never be outsourced.
    During the last 3 years, unemployment has soared to 
sustained highs we have not seen in this country since the 
Great Depression. Mining employment is one of the few areas 
where the private sector employee has seen some moderate growth 
and is not somehow dependent on Federal spending.
    Of course, the mining industry would be creating far more 
jobs if the economy was in a swifter recovery and if power from 
coal wasn't being discouraged in the United States
    In Wyoming, we work hard to keep employees safe at work. 
Mines in Wyoming have developed safety programs far beyond what 
MSHA requires. An Arch Coal operation called Black Thunder is 
the largest surface coal mine in the country and it's located 
in the Powder River Basin in Gillette, WY. This operation is 
responsible for 8 percent of the Nation's coal supply, and they 
have an excellent safety record.
    Last year they were Wyoming's safest mine and received an 
award for working more than 2 years and 6-million employee 
hours without a loss-time injury. One reason they are so 
successful is that they have implemented a safety program far 
and above anything required by MSHA. This program periodically 
pairs employees from different work groups for a shift. One of 
these employee's purpose is to observe the other and identify 
safety hazards that are observed.
    Many of the hazards are behavioral and are easily fixed 
once pointed out, explained and corrected. Employees are not 
punished for any lapses, and the observing employee has 
volunteered for the duty, although they are still paid by the 
company. The record shows that what Black Thunder is doing is 
working, but it's certainly a very different model than MSHA.
    In Wyoming we don't just mine coal. We also mine trona, 
soda ash, bentonite, and uranium, among other resources. While 
there are some common safety concerns and practices with 
underground coal, some of the hazards presented are quite 
different. These differences must be recognized, and solutions 
for one type of mining should not be blindly applied to others, 
especially when the policy adds burdensome requirements that 
will make extracting the resource more costly.
    While you can't outsource mining in Green River, WY to 
India, if the cost of extracting trona in Wyoming drives the 
price up, buyers will obtain it from mines in China, and 
hundreds of American jobs will disappear.
    Talk to almost any U.S. coal miner and you will hear that 
the industry does feel that this Administration's policies are 
threatening the industry's future. Although the basis for the 
concern goes well beyond MSHA and the subject of this hearing, 
it is worth mentioning because safety regulations won't matter 
if there aren't any jobs to keep safe.
    Although I was pleased to hear last week that the 
Administration sees a future for coal with the announcement 
that they will move forward with coal leases in the Powder 
River Basin, the President's overall energy policy seeks to 
increase prices for Americans and seeks to limit the use of 
coal.
    The President's decision to allow the EPA to regulate 
greenhouse gases under the Clean Air Act will kill jobs in 
Wyoming and throughout the country, and there are a sizeable 
number of other regulations coming down the pike that will make 
it more difficult to use coal, our Nation's cheapest, most 
abundant energy source.
    I know that many of my colleagues here today share my 
interest in keeping these jobs in America, but also making them 
safer. This goal can be achieved if we include stakeholders in 
policy discussions, if we work to find solutions that address 
their valid concerns and agree to do the possible, instead of 
holding out for political victories that will be difficult to 
achieve.
    I was honored to work with the former Chairman Kennedy, 
Senator Rockefeller, Senator Murray, and Senator Isakson to 
author the MINER Act in 2006, the first major change to the 
Mine Act in a generation. In fact, I think it was 28 years. The 
MINER Act has advanced mine safety technology across the board 
and done much to better prepare mines to deal with emergencies. 
We were able to pass it because we had the support of both 
labor and industry, Republicans and Democrats and we got their 
support by involving everyone in the process.
    I stand ready to re-engage in that process with partners 
interested in forming achievable goals, sharing information, 
consulting all affected stakeholders and reaching agreement 
rather than making political points. I believe this is the best 
way we can honor the 29 men who died on April 5th and the 42 
other miners who lost their lives at work last year.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Enzi.
    It's a long-standing policy of this committee that only the 
Chair and the Ranking Member make opening statements; however, 
we are joined today by our esteemed colleague, Senator Manchin, 
and I will obviously recognize him for questions during the 
question period, but I would ask in absence that whatever 
statement he may have be made a part of the record.
    I also know that Senator Rockefeller wanted to be here this 
morning, but was unavoidably called away. I also ask in absence 
that his statement be inserted at this point into the record.
    [The prepared statement of Senator Rockefeller follows:]

              Prepared Statement of Senator Rockefeller IV

    I would first like to thank Chairman Harkin, Ranking Member 
Enzi, Senator Murray, Senator Isakson, and all the members of 
this committee for holding this hearing today.
    We have always had a great deal of bipartisan collaboration 
on mine safety issues, and I look forward to our continued work 
on this critical issue.
    Often in Congress, tragic events like those that happened 
at the Upper Big Branch mine in Montcoal, WV receive a lot of 
attention right when they happen. Unfortunately, there is not 
always the follow through that is necessary to make sure that 
those tragedies do not happen again.
    This hearing--and the work that the committee members and 
their staffs have done over the past year--is truly a testament 
to each Senator's commitment to mine safety.
    As the members of this committee know, the safety of West 
Virginia's coal miners is extremely important to me. Their job 
is hard, it is dirty, and it is dangerous--but it is absolutely 
necessary to keep our country running.
    It is impossible to put into words how devastating the 
Upper Big Branch disaster has been to West Virginia's mining 
community. I was there with the families as they hoped and 
prayed for 29 husbands, fathers, brothers, sons, and 
grandsons--and I made a commitment that day to not rest until 
we made every improvement necessary to our mine safety laws.
    Over the past year, we have seen important improvements in 
the enforcement of our mine safety laws. The Mine Safety and 
Health Administration has:

     initiated 228 ``impact inspections'' that target 
mines with poor compliance;
     pursued, for the first time ever, injunctive 
authority to stop hazardous mining conditions;
     issued emergency rock-dusting standards to prevent 
explosions;
     proposed important revisions to the broken 
``Pattern of Violations'' process; and
     conducted more outreach to operators on safety and 
compliance standards.

    Congress has also taken steps to improve mine safety. We 
provided an additional $22 million to help reduce the backlog 
of appeals at the Federal Mine Safety and Health Review 
Commission--a backlog that has only served to delay safety.
    We also enacted into law an amendment that I offered to the 
Wall Street reform law that requires disclosure of serious 
safety violations to the Securities and Exchange Commission. 
This law makes sure that safety violations are known to 
investors and impact a company's bottom line.
    While these are important and necessary improvements, they 
are only incremental. There is much more we can and should do 
today to improve mine safety, increase accountability, make our 
enforcement more efficient, and protect miners who speak out 
about unsafe conditions.
    Even as the civil and criminal investigations into the 
Upper Big Branch disaster continue, we must remember that 
Congress' obligation to learn from these tragedies and adjust 
our laws where necessary is not put on hold.
    I have always believed that our country has a continuing 
obligation to make sure that coal miners--and all workers for 
that matter--can go to work, do their jobs, and return home 
safely to their families at the end of the day.
    I know that the Upper Big Branch families are still looking 
for answers and are still looking for action. If there is one 
message that I would like to relay to them today, it is that we 
have not forgotten the miners. I stand with them today in my 
commitment to improve mine safety for future generations.
    I thank the Chair.

    The Chairman. And, now, Mr. Joseph Main, the Assistant 
Secretary of Labor from Mine, Safety and Health Administration 
for more than 40 years, has worked to improve every aspect of 
miner health and safety, both in the United States and 
internationally.
    Mr. Main began working at coal mines in 1967, and he 
quickly became an advocate for miners' safety and health. In 
1982, he was appointed the administrator of the United Mine 
Workers of America Occupational Health and Safety Department, a 
position he held for 22 years.
    Mr. Main has extensive hands-on experience inspecting and 
evaluating mining conditions, plans, and systems and has been 
involved in a number of mine emergencies and accident 
investigations.
    We welcome Mr. Main back to the committee.
    Our second witness is Mr. Elliott Lewis, the Assistant 
Inspector General for Audit, Office of Inspector General of the 
U.S. Department of Labor.
    Prior to his current position, he served as the Deputy 
Assistant Inspector General for Audit. Before joining the 
Federal Government, he was a partner at T.R. McDowell and 
Company, CPAs in Columbia, SC from 1986 to 1991.
    Both your statements will be made a part of the record in 
their entirety.
    We'll start, of course, with Assistant Secretary Main. If 
you could sum it up in several minutes for us, we'd appreciate 
it; then we'll go to Mr. Lewis, and follow with a question 
period.
    Mr. Main, welcome back.

STATEMENT OF JOE MAIN, ASSISTANT SECRETARY, U.S. DEPARTMENT OF 
  LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, ARLINGTON, VA

    Mr. Main. Thank you, Mr. Chairman.
    Senator Enzi, Senator Manchin, I appreciate the opportunity 
to be here today to update you on mine safety and health, 
report on MSHA's actions since the April 5th explosion at the 
Upper Big Branch mine that tragically took the lives of 29 
miners, and discuss why, despite MSHA's extraordinary efforts 
in the wake of the Upper Big Branch disaster, legislation is 
still needed to fully protect our Nation's miners.
    I want to also acknowledge the families of those miners. 
They carry the heaviest burden of that tragedy, and they are 
constantly in our prayers.
    Since I last testified before Congress 11 months ago we 
have made significant progress in MSHA's investigation into the 
Upper Big Branch explosion. The underground investigation, 
which has been quite extensive, is nearing completion.
    Based on the evidence we've gathered so far, it appears 
that a low volume of methane and/or methane fuel from natural 
gas provided the fuel for the initial ignition on or near the 
face of the tailgate side of the vinyl longwall shearer, or 
cutting machine.
    Small methane ignitions are not uncommon in coal mines, but 
when proper safety measures are followed, these ignitions are 
generally controlled and extinguished.
    Our preliminary analysis shows, however, that at Upper Big 
Branch, the small ignition was not contained or quickly 
extinguished. Instead, a small methane ignition transitioned 
into a massive explosion, fueled by an accumulation of coal 
dust that propagated the blast.
    It is likely to be some time before MSHA can provide a 
final report on the Upper Big Branch disaster, but we will hold 
a briefing on June 29th in Beckley to share with the public the 
information that we have gathered during the investigation, 
including an overview of the physical evidence and summaries of 
other evidence.
    While we are continuing our investigation of Upper Big 
Branch we know already that explosions in mines are preventable 
and that a workplace culture which puts health and safety first 
will save lives and prevent tragedies.
    I have the deepest respect for those who choose mining as a 
career. I was a miner myself. Mining is critically important to 
our economy, and I believe that a commitment to safety is fully 
compatible with a thriving industry.
    Since Upper Big Branch, MSHA has worked hard to use every 
tool at its disposal to encourage operators to live up to their 
obligations, to provide a safe and healthful workplace.
    One of our most effective enforcement tools has been our 
impact inspections. From April 2010 through February 2011, MSHA 
has conducted 228 targeted impact inspections at mines with 
special concerns. We have conducted these impact inspections at 
times during off hours, taking hold of phone lines to prevent 
advance notice when covering key parts of the mine quickly 
before hazards could be hidden or covered up.
    Another important post-Upper Big Branch enforcement action 
was MSHA's decision, for the first time ever, to seek a Federal 
court injunction for a pattern of violations. Shortly after we 
filed the action, the operator announced it was permanently 
closing his mine, and agreed to a court order that ensured the 
safety of miners during the shutdown, and protected the 
livelihood of the displaced miners.
    We've also taken important actions to improve the broken 
pattern of violations program. We adopted new screening 
criteria and used new criteria for 14 mines on a potential 
pattern of violations. Some of these mines have successfully 
reduced their violations. For the few that have not, the next 
step is an evaluation by MSHA as to whether they should be 
given notices of pattern violations actions.
    MSHA has also published a proposed rule which would address 
laws in the current rules to meet the intent of the statute. 
MSHA has taken a number of other actions as well to ramp up our 
efforts. This includes regulatory actions such as the 
announcement of the Emergency Temporary Standard on rock dust, 
and a proposed rule that would revise requirements for operator 
examinations of underground mines as well as issuance of a 
number of targeted compliance guidance to the mining industry.
    Upper Big Branch also highlighted the importance of 
addressing the growing backlog at the Federal Mine Safety and 
Health Administration and we are taking several actions to 
attack the problem. MSHA cannot be in every mine all the time, 
and mine operators must find and fix hazards in conditions, 
whether or not MSHA is there. That's their responsibility. I 
believe that many mine operators want to do this and want to 
run safe mines.
    In order to assist the mine operators MSHA has undertaken 
extraordinary education and outreach effort. I have traveled 
the country speaking to miners, operators, mining organizations 
and associations, and listening to their ideas and concerns.
    We're working together to improve consistency in 
enforcement of the mining standards; implement new compliance 
programs and initiatives to improve mine safety in this 
country.
    The committee has a long history of standing up for our 
Nation's miners. I hope that you do so again, and pass new mine 
safety legislation, and quickly, as you did following the Sago 
Mine disaster.
    Since Upper Big Branch we've learned that there are 
systemic flaws in the law that only Congress can fix.
    The Administration supports legislation that gives MSHA the 
enforcement tools it needs to ensure that all mine operators 
live up to their legal and moral responsibility to provide a 
safe and healthful workplace for all miners.
    Let me mention just a few of the areas, among others, that 
merit attention:

    First, Congress should fix the broken POV system. There's 
only so much we can do through regulations.
    Second, Congress should revise MSHA's injunctive authority. 
We used the provision and learned that the process may be 
slower than needed to protect miners. New legislation should 
provide us sufficient authority to act as soon as we believe 
protecting line safety--miner safety and health--requires our 
immediate action.
    Third, legislation should strengthen the criminal 
provisions of the Mine Act. No mine operator should be risking 
the lives of its miners by cutting corners on health and 
safety, but for those who knowingly engage in such practices, 
we need to send them a clear message that their actions will 
not be tolerated.
    Finally, legislation must ensure miners are fully protected 
from retaliation. Miners know best the conditions in their 
mines. But as some of the surviving miners and their family 
members have reported, miners are afraid to speak out because 
they fear they will lose their jobs if they speak out.
    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.
    Thank you.
    [The prepared statement of Mr. Main follows:]
                  Prepared Statement of Joseph A. Main
    Chairman Harkin, Ranking Member Enzi, 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 
update you--nearly 1 year later--about the ongoing 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, and to report on 
the actions that we have taken since the explosion. The accident at UBB 
was the worst mining disaster since the creation of MSHA by the Federal 
Coal Mine Health and Safety Act of 1969 (Mine Act) and the deadliest 
coal mine disaster this Nation has experienced in 40 years. As a result 
of the explosion, the need to rethink how we approach mine safety and 
health to protect miners has taken on a new urgency.
    I also want to discuss why, despite MSHA's extraordinary efforts in 
the wake of the UBB disaster, legislation is still needed to fully 
protect our Nation's miners. 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 over a year ago with a clear purpose--to 
implement and enforce the Nation's 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. We owe it to the memory of the 
29 miners who died at Upper Big Branch and to the families that they 
left behind to rededicate ourselves to protecting 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. I 
think we can all agree that mining is critically important to our 
economy, and I believe most understand our collective responsibility to 
ensure that effective health and safety standards are in place and are 
followed to prevent injury, illnesses and death.
    I know that it is possible for a mine to be a safe place to work 
for miners and a profitable business for operators. Most of the 
industry shares this belief and makes the commitment to safety because 
it is not only the right thing to do, but the smart thing to do as 
well. Injuries, illnesses, and fatalities have for too long taken a 
toll on miners, their families, their communities and the mining 
industry.
    We also understand that MSHA's effective enforcement of the law 
should create a level playing field, so that operators who play by the 
rules and provide safe mine conditions do not have to compete against 
operators who cut corners on safety.
    While enforcement is the major tool at our disposal to secure 
compliance with the Mine Act and health and safety standards, MSHA will 
continue to partner with the industry to ensure that miners are safe 
and healthy and that the industry and those who derive their livelihood 
from the industry--especially those who play by the rules--continue to 
thrive.
                     upper big branch investigation
    Since I last testified before this committee in April 2010, MSHA 
has made significant progress in its investigation of the explosion. I 
would like to first provide a brief overview of the investigation and 
then give you an update on what we have learned so far.
    The investigation team was named just after the explosion, but 
there was a delay in getting the team members underground due to 
unstable conditions and the need to provide a safe working environment 
for the investigators. The investigative team began its physical 
inspection at the end of June 2010. The underground investigation--
which has been extensive--is nearing completion. MSHA has conducted 
more than 260 witness interviews and has dedicated 108 enforcement 
personnel to the investigation. This includes 10 mine dust survey 
teams, 7 mapping teams, 3 electrical teams, 1 ventilation team, 1 
geology team, 1 flames and forces team, 1 evidence collection team, and 
1 inspection activities team. In addition, 45 technical support 
personnel are performing testing and other technical activities related 
to the investigation. Our investigative teams have combed through every 
inch of the accessible parts of the mine. To date, more than 2,000 
pieces of evidence have been collected and tested, including equipment, 
and gas, dust and other samples. While there still is more work to be 
done, MSHA is committed to completing the investigation in as timely a 
manner as possible.
    I want to note for the committee that while MSHA is investigating 
the cause of the accident and how to prevent future, similar accidents, 
the Department of Justice (DOJ) also opened its own investigation into 
possible criminal wrongdoing almost immediately after the explosion. 
The U.S. Attorney for the southern district of West Virginia requested 
that MSHA delay its announced public hearings and the release of 
witness transcripts so as not to jeopardize the separate criminal 
inquiry by DOJ. MSHA has honored that request in recognition of the 
President's instruction for the Department of Labor to work with DOJ to 
ensure that every tool in the Federal Government is available in the 
investigation of the accident. That criminal investigation is ongoing 
and, on March 1, the U.S. Attorney issued the first indictment related 
to the disaster. He indicted the head of Security at Performance Coal, 
a Massey subsidiary, for obstructing justice and making false 
statements about his role in giving advance notice of underground 
inspections at the mine. We will continue to support DOJ as they work 
to bring those who violated the law to justice.
    Since the outset, MSHA has been conducting one of the most 
transparent accident investigations in the history of the Agency. The 
investigation is long and complex and, we have been releasing 
information as soon as we are able, including in response to numerous 
requests under the Freedom of Information Act (FOIA). It is important, 
however, that we give the investigation team the ability to collect and 
analyze data and other evidence before we disseminate the information 
to the public. Within this framework, we have established an ``Upper 
Big Branch Single Source Page'' on our Web site at: http://
www.msha.gov/PerformanceCoal/PerformanceCoal.asp to post as much 
information as we can to keep the public informed about the accident. 
We are continually reviewing our disclosures and pending requests for 
information to determine what additional information we can release and 
post to our Web site. As with past investigations, MSHA cannot 
prematurely release information or documents vital to the 
investigation.
    In addition, we have honored our commitment to the families to keep 
them as informed as we can about the findings of the accident 
investigation team to date. It is critical to them that the team 
conducts a thorough investigation and determines what caused the deaths 
of their loved ones. To the extent that we have been able to release 
information, my colleagues and I have met with the families of the 
victims on a number of occasions to bring them up to date on the status 
of the investigation. The last family briefing was on January 18, 2011, 
when we met with the families for almost four hours. The Solicitor of 
Labor, M. Patricia Smith, joined us at this briefing. In addition, 
consistent with Section 7 of the Mine Improvement and New Emergency 
Response Act of 2006 (MINER Act), MSHA family liaisons are in 
continuous contact with the families.
    To continue to be as transparent as possible, MSHA will hold a 
briefing on June 29, 2011, to share with the public information 
gathered during the investigation of the explosion at the Upper Big 
Branch mine in Raleigh County, WV. The briefing coincides with the 1 
year anniversary of the start of the underground investigation at the 
Upper Big Branch Mine and will be held at MSHA's Health and Safety Mine 
Academy in Beckley, WV. Although the underground investigation and 
interviews are still ongoing, by June, MSHA investigators will be able 
to compile additional relevant evidence in order to provide a 
substantive presentation to the public.
    We know that for the families, the past year has been incredibly 
difficult and that the investigation is taking more time to finish than 
we had originally thought. The families have been very much in our 
hearts and prayers as we work to conclude this complex investigation as 
quickly as possible.
    We also have held regular briefings for the committee leadership 
and your staff on the status of the investigation and our preliminary 
findings.
    When I testified last April, the investigation team had just been 
selected, and there was little I could tell you about what caused the 
explosion at Upper Big Branch. In the intervening months, we have 
learned a tremendous amount. Based on the evidence that the team has 
gathered to date, it appears that a low volume of methane and/or 
methane fuel from natural gas provided the fuel for the initial 
ignition on or near the face of the tailgate side of the longwall 
shearer, or cutting machine. Small methane ignitions are not uncommon 
in coal mines, but when proper safety measures are followed, these 
ignitions are generally controlled or extinguished by proper 
ventilation and safety equipment on the longwall shearer, such as 
mining bits and water sprayers.
    The evidence to date shows, however, that at Upper Big Branch, the 
small ignition was not contained or quickly extinguished. The analysis 
also indicates that a small methane ignition transitioned into a 
massive explosion, fueled by an accumulation of coal dust that 
propagated the blast.
    While the investigation is not complete, and it is likely to be 
several months before MSHA is able to issue a report, we do know 
already that explosions in mines are preventable. Most importantly, we 
know that a workplace culture that puts health and safety first will 
save lives and prevent tragedy.
                 msha's actions after upper big branch
    The tragic events of April 5th at the Upper Big Branch mine changed 
the lives of many people--the miners' families, their communities, 
miners around the country, and those of us at the Department of Labor 
dedicated to mine safety. When the Secretary and I sat with the 
families on those fateful days following the explosion, waiting for 
news of their loved ones, we committed to them that MSHA would act 
boldly to prevent another similar disaster. President Obama reiterated 
that promise when shortly after the accident he told the Nation that 
``we owe [those who perished in the UBB disaster] more than prayers. We 
owe them action. We owe them accountability.''
    The MSHA team has pulled together and worked hard to make good on 
the President's promise. We are using every tool at our disposal, 
including ramped-up enforcement, targeted upgrades in our regulations, 
and education and outreach.
    One of our most effective enforcement tools has been our impact 
inspections. After the disaster at the Upper Big Branch mine, MSHA 
began to conduct strategic ``impact'' inspections at coal and metal and 
nonmetal mines that needed greater attention. From April 2010 through 
February 2011, MSHA conducted 228 impact inspections at mines with 
special concerns. These inspections are ongoing. Targeted mines are 
those that could be at risk of explosion, mines with poor compliance 
histories or histories of accidents or fatalities, or mines with other 
warning signs, such as efforts to cover up violations, hotline 
complaints or mines with poor examination procedures. MSHA has also 
conducted inspections at mines with recurring problems dealing with 
adverse physical conditions or that have a poor safety culture.
    From testimony by Jeffrey Harris--a former Massey employee who had 
spent time at UBB in 2006--before this committee last April, and again 
from witnesses at a field hearing conducted by the House Education and 
Workforce Committee in May 2010, we heard the different ways in which 
operators would use their knowledge of our inspection methods to hide 
the violations they were committing. For example, Mr. Harris testified 
that miners at UBB were ordered to put up ventilation curtains when 
inspectors were in the mine, but to take them down as soon as the 
inspectors left.
    Therefore, MSHA has conducted these impact inspections in a way 
that has shaken up even the most recalcitrant operators. MSHA has shown 
up at their mines during ``off hours,'' such as evenings and weekends. 
In some cases, MSHA has taken hold of the mines' phone lines upon 
arrival to prevent unscrupulous operators from giving advance notice of 
the inspectors' presence at the mine. Our inspectors have gone into 
those mines in force, with sufficient personnel to cover the key parts 
of the mine quickly before hazards could be hidden or covered up.
    The results of the impact inspections have been significant. MSHA 
inspectors have issued more than 4,200 citations and 396 orders for 
violations of mine safety and health laws, rules and regulations during 
these targeted inspections--and miners are safer because we conducted 
those inspections. Some of the conditions and violations MSHA found 
during impact inspections are quite disturbing.
    For example, in July 2010, MSHA inspectors commandeered company 
phones during the evening shift at a mine in Claiborne County, TN, to 
prevent surface personnel from notifying workers underground of MSHA's 
presence on the property. Inspectors found numerous ventilation, roof 
support and accumulation of combustible materials violations. These 
types of conditions potentially expose miners to mine explosions and 
black lung disease. The operator was also mining into an area without 
necessary roof support, placing miners at further risk from roof falls. 
In all, MSHA issued 27 citations and 11 orders as a result of that 
inspection.
    Unfortunately, the mine operator did not get the message. MSHA has 
now conducted four impact inspections at the mine, based on its ongoing 
compliance problems and apparent disregard for the law, and in November 
2010, the mine was issued a potential pattern of violations notice. 
During the December 2010 impact inspection--after the potential pattern 
of violations letter went out--inspectors issued four orders for 
substantial accumulations of combustible coal dust of up to 24 inches 
in depth covering extensive areas where miners work and travel, and for 
not properly maintaining a lifeline in the mine's secondary escapeway. 
Coal and rock dust on the lifeline and reflective markers would have 
made it more difficult for miners to escape to the surface in the event 
of an emergency. During the next regular safety and health inspection 
at the mine on January 19, 2011, MSHA found more violations for 
accumulations of combustible materials, not maintaining proper 
clearance on a belt line and inadequately supported ribs--these 
violations required equipment to be shut down, which effectively closed 
the mine to production, except for maintenance personnel. The mine has 
made improvements, but only after MSHA placed it in MSHA's pattern of 
violations program.
    During another impact inspection in September 2010 at a mine in 
Boone County, WV, MSHA inspectors arrived in the middle of the evening 
shift and prevented calls to warn those working underground. Inspectors 
found that the mine was making illegal deep cuts into the coal seam. In 
addition, many areas of the working section were without adequate 
ventilation while these excessive cuts were being taken, exposing 
miners to the risk of explosion and black lung. The inspection revealed 
that air readings were not being taken during the work shift and that 
mine ventilation was being short-circuited. In one particular area, 
suspended coal dust was so thick it was difficult to see the massive 
continuous mining machine in operation nearby. Again, these are 
conditions that can also result in explosions and cause black lung. The 
inspector issued 11 closure orders during that inspection.
    Another important post-UBB enforcement action was MSHA's decision--
for the first time since the passage of the Mine Act--to seek a Federal 
court injunction under the Mine Act's ``pattern of violation'' 
injunction section. We filed the injunction action against Massey 
Energy's Freedom Energy Mining Company's No. 1 mine located in Pike 
County, KY. The mine had a pattern of violations of mandatory safety 
and health standards, which in our view, constituted a continuing 
hazard to the health and safety of the miners working at the mine. From 
July 2008 to June 2010, MSHA had issued 1,952 citations and 81 orders 
to the company for violating critical standards including improper 
ventilation, failure to support the mine roof, failure to clean up 
combustible materials, failure to maintain electrical equipment, and 
failure to conduct the necessary examination of work areas.
    Shortly after we filed the action, the operator announced it was 
permanently closing its mine and moving the miners to other mines it 
owned in the area. It agreed to a court order that ensured the safety 
of miners during the shutdown process and protected the livelihood of 
the displaced miners.
    MSHA has also evaluated other mines for possible injunctive relief, 
and we will continue to use this remedy when mines are engaged in a 
pattern of violations and miners are faced with continuing hazards to 
their safety and health. Yet despite a successful result in the case 
against Freedom Energy, that case demonstrates that injunctive court 
actions will not always proceed quickly or result in instant relief.
    MSHA has also issued new enforcement policies and alert bulletins 
addressing specific hazards or problems to ensure that miners and mine 
operators understand important enforcement policies. We have addressed 
topics such as the prohibition on advance notice of MSHA inspections, 
mine ventilation requirements that protect against mine explosions and 
the right of miners to report hazards without being subject to 
retaliation.
    I have said that the pattern of violations, or POV process, is 
broken and MSHA is committed to fixing it. In the provision's 33-year-
old history, no mine has ever been subject to the full measure of the 
law contemplated by Congress. While we were reviewing the POV process 
prior to the UBB disaster, the incident heightened the urgency of 
moving forward with reforms. Therefore, in October 2010, we put new 
screening criteria in place for the POV program. This was a critical 
first step in reforming the current POV program to give the Agency an 
effective enforcement tool to address mines that repeatedly violate 
safety and health standards. Notifications of potential pattern of 
violations have been sent to 14 mines using these new screening 
criteria and procedures. To date, nine of these mines have completed 
their evaluation period. Eight mines met their improvement goals for 
reducing serious violations, and two mines did not. The two mines that 
did not meet their goals now have the opportunity to submit a response 
to MSHA's evaluation report, and after review MSHA will determine in 
each case whether the mine will be given notice of a pattern of 
violations. Additional mines are still under review for potential 
pattern of violation actions.
    The next step in fixing the broken POV program was the proposed 
revisions to the existing regulation. As promised, on February 2, 2011, 
we published a proposed rule on POV, which would revise the existing 
regulation to reflect the intent of Congress when it wrote the POV 
provisions, such as not limiting MSHA to looking at enforcement actions 
that have resulted in final orders and eliminating the potential POV 
process. MSHA also accelerated other regulatory actions after UBB. 
Comments on this proposal are due April 4, and I would welcome any 
comments you might have for the rulemaking record. A public hearing 
will be scheduled on the proposed rule.
    On September 23, 2010, MSHA issued an Emergency Temporary Standard 
on increasing the incombustible content of combined coal dust, rock 
dust and other dust in coal mines to minimize the potential for coal 
dust explosions. This ETS is based on research findings and 
recommendations by the National Institute for Occupational Safety and 
Health (NIOSH), within the Department of Health and Human Services. As 
discussed above, we strongly believe that coal dust played a role in 
the UBB disaster.
    The UBB disaster highlighted the need to ensure that mine operators 
take seriously their obligation to find and fix the hazards in their 
mines, even when MSHA is not looking over their shoulders. On December 
27, 2010, therefore, MSHA published a proposed rule that would revise 
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 with mine examiners on a quarterly basis 
all citations and orders issued in areas where examinations are 
required. This rule would re-
instate requirements in place for about 20 years following the passage 
of the 1969 Mine Act.
    The UBB disaster also enhanced the urgency of our need to address 
the backlog of cases at the Federal Mine Safety and Health Review 
Commission (FMSHRC). We have taken a number of actions to attack this 
problem. First, we are being good stewards of the supplemental 
appropriations that Congress provided for the Department and FMSHRC to 
reduce the backlog. The extra resources are helping us to resolve 
cases, and we continue to explore ways in which we can reduce the 
number of contested cases.
    Last fall, I also launched a pre-contest conferencing pilot program 
in 3 MSHA districts. The pilot program allows the mining industry to 
meet on the local level with MSHA to resolve differences over citations 
and orders before they are contested and add to the backlog. We are 
currently assessing the pilot program to determine how we can improve 
consistency and implement the conferencing program throughout MSHA to 
provide opportunities to resolve disputes before citations and orders 
are contested. Just last month, MSHA held a stakeholder meeting with 
representatives from the coal and metal and non-metal industries and 
labor to discuss the pilot project and share ideas for an effective 
pre-contest process. Although it is too early to see the impact, I 
believe an effective pre-contest conference program could be an 
important tool in resolving disputed violations so they do not become 
part of the backlog.
    Finally, the UBB disaster reinforced my concerns about MSHA's mine 
emergency response capabilities. I had already ordered a review to 
identify gaps in the system before UBB. Sadly, I saw many of those gaps 
first hand at the UBB site, such as inadequate communications and 
emergency equipment coordination.
    MSHA has made major progress in this area. MSHA's new state-of-the 
art mobile command center based in Pittsburgh is in service and nearing 
full operational capability. The mobile command will improve MSHA's 
capacity to provide better communications, advice and guidance during a 
mine rescue and recovery. At the UBB site, I had difficulty 
communicating with the Department's headquarters, and even with MSHA 
emergency response staff who were in the vicinity of the mine. Our new 
mobile command should help correct these difficulties. In addition, 
MSHA is updating its technology, developing standard operating 
procedures and implementing more comprehensive command and control 
training for the MSHA district personnel that would be responding to 
mine emergencies.
    As a result of these improvements, we are better able to respond to 
and manage mine emergencies, but as MSHA continues its thorough review 
of emergency plans and procedures to identify and fix gaps in the 
system, we know that more needs to be done. For example, some mine 
operators do not have available mine emergency equipment and are not 
prepared to quickly respond to emergencies. We are working with the 
mining industry, State agencies, drilling companies and others to 
identify areas for improvement in overall mine emergency response and 
equipment needs.
    Something that should not go unnoticed is that the 2006 MINER Act 
greatly enhanced our mine rescue response to the Upper Big Branch 
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 Upper Big 
Branch greatly appreciated this improvement in mine rescue team 
strength and preparedness.
             education, outreach and compliance assistance
    As I said at the outset, I believe that most mine operators want to 
run safe mines. In order to reach and assist these mine operators, MSHA 
has ramped up its education, compliance assistance and outreach.
    First, we have made it a priority to educate mine operators, 
contractors, miners, trainers and others about how to prevent injuries 
and fatalities in mines. Let's remember that it was not just the Upper 
Big Branch disaster that led to mining deaths in 2010. In addition to 
the 29 miners who died at UBB, 42 other miners died on the job last 
year for a total of 71 miners, compared to 34 in 2009. And most of 
these non-UBB related deaths are the types that are recurring in the 
mining industry.
    Despite the attention paid to coal mine fatalities in the media, 
more miners have died at metal/nonmetal mines than in coal mines, even 
though the fatality rate is lower for those individuals. From 1990 
through 2010, and not including black lung-related deaths, 838 miners 
perished in metal/nonmetal mines as compared to 820 miners who died at 
coal mines. Additionally, over 80 percent of the metal/nonmetal 
fatalities occurred at surface mines, and a majority of the fatalities 
were at mines with 20 or fewer employees. I have spoken to members of 
the mining industry and those who train miners about the causes of 
these accidents and the practices that can prevent them. We know how to 
prevent these deaths, but more must be done to put that knowledge to 
work.
    One way to put that knowledge to work is to ensure that the 
industry is more proactive about safety. Operators should have 
effective safety and health management systems in place, because these 
are the best vehicles for establishing a culture of safety in mining 
workplaces. Well-designed safety and health systems should be developed 
with everyone in the company involved--from the CEO to the miners. If 
properly implemented, these systems ensure that operators routinely 
find and fix hazards in their mines instead of waiting for MSHA to find 
them. If MSHA can identify problems in a mine, so can a mine operator. 
We have begun the process of involving our stakeholders in our plans to 
move forward by already holding three public meetings on the efficacy 
of an MSHA safety and health program standard.
    We also have had several successful, targeted education campaigns 
last year. For example, in early 2010, we launched a new program called 
``Rules to Live By.'' This is a fatality prevention initiative focusing 
on 13 frequently cited standards in metal and nonmetal mining and 11 
frequently cited standards in coal mining that most commonly caused or 
contributed to fatal accidents over a 10-year period. This effort 
combines education and outreach on the front end, followed by enhanced 
enforcement by MSHA.
    In November 2010, we initiated a second phase of ``Rules to Live 
By'' focusing on 9 coal safety standards aimed at preventing other 
catastrophic accidents. We have posted on the MSHA Web site information 
on the ``Rules to Live By'' initiative and the training module used to 
instruct inspectors on how to handle enforcement of the targeted 
standards to allow the mining industry to have access to the training. 
This program will also improve our consistency in enforcing standards.
    Also in 2010, we initiated a resource page on our Web site for the 
metal and nonmetal industry that includes a ``Compliance and Updates'' 
section. And just this year, MSHA released ``Safety Pro in a Box,'' a 
resource intended to provide meaningful compliance assistance to small 
and new operators in the aggregates industry. This safety tool box, 
which provides helpful compliance guides, was suggested by the National 
Stone, Sand and Gravel Association (NSSGA) and developed with the 
association's assistance.
    Quality training is another important component in making our mines 
safer. Mine operators and contractors need to train miners and mine 
supervisors on the conditions that lead to deaths and injuries, as well 
as on measures to prevent them. This is an industry in transition as 
new miners are replacing the aging workforce. MSHA is working with the 
mining industry to help ensure that education, training and knowledge 
transfer keep pace with that transition and does not undercut health 
and safety gains made over the years.
    Moreover, to promote better understanding of the mining industry's 
concerns with MSHA's enforcement program and to improve mine safety and 
health, MSHA has entered into alliances with a number of mining 
associations, including the NSSGA, the Industrial Minerals Association-
North America and the Portland Cement Association. MSHA's Administrator 
for Metal and Nonmetal and I have met frequently with these groups and 
with many State aggregate associations across the country about their 
concerns.
    MSHA is also teaming up with the Interstate Mining Compact 
Commission, an organization which represents State mining agencies, to 
coordinate a Federal and State effort that promotes a culture of safety 
and encourages mine operators to live up to their responsibilities to 
provide safe and healthful workplaces, to fully comply with State and 
Federal requirements and to provide effective training for their 
miners.
    One important outgrowth of our outreach to our stakeholders is 
MSHA's renewed attention to improving consistency in the citations 
issued by MSHA's inspectors. To address the concerns that we have heard 
about consistency, we've taken several steps including a review of 
enforcement actions to ensure that MSHA policies and procedures are 
followed; a review of agency inspection procedures; field inspection 
audits to improve inspections; training of Conference Litigation 
Representatives (CLRs); and mandatory, comprehensive, refresher 
training for all inspectors. In 2010, we developed a new 2-week 
training program for all MSHA field office supervisors to improve the 
quality and consistency of enforcement. As previously noted, we are 
working on establishing an effective pre-contest citation and order 
conference procedure that will provide earlier opportunities to resolve 
disputes. We also hope that the conferences will serve as learning 
experiences for both operators and MSHA personnel so that discrepancies 
in citations can be corrected going forward.
                         eradicating black lung
    On the health front, MSHA continues to move forward on its ``End 
Black Lung--Act Now!'' initiative, which is a comprehensive strategy to 
fulfill the promise made 40 years ago with the passage of the 1969 
Federal Coal Mine Health and Safety Act to eradicate Black Lung. 
According to NIOSH, in the past decade, thousands of miners have died 
from Black Lung disease. Black Lung still kills hundreds of former coal 
miners each year and severely impairs the lives of many more; there are 
alarming indications that it is on the rise, even in younger miners.
    In December 2009, we launched Phase I of the initiative, which 
includes education, outreach and enforcement. In October 2010, we 
launched Phase II by publishing a proposed rule, which would address 
shortcomings in the sampling process; lower the existing exposure 
limits for respirable dust; take advantage of new technology for 
measuring exposure--the continuous personal dust monitor; and expand 
medical surveillance, so that miners can take proactive steps to reduce 
hazardous exposures and better manage their health. As required by the 
Mine Act, we have addressed economical and technological feasibility in 
our proposed rule. On February 15, MSHA concluded a series of public 
hearings held across the country on this proposed rule, and we are 
encouraging all interested parties to submit comments by May 2, 2011.
                          need for legislation
    This committee has a long history of standing up for our Nation's 
miners. It has never subscribed to the myth that mining fatalities are 
an inevitable aspect of the business. I am asking you to again stand up 
for miners and pass new and needed mine safety legislation.
    Almost 1 year has passed since we lost those 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 
largely successful. In addition, proposed regulatory actions, if 
implemented, will make operators more responsible for finding and 
fixing violations and will highlight those mines with continuing 
problems. Our extraordinary 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.
    To make MSHA truly effective in cracking down on serial violators 
who seem indifferent to miners' health and safety, MSHA needs 
additional tools that only Congress can provide. We need to change the 
culture of safety in some parts of the mining industry, so that they 
are as concerned about the safety of their miners when MSHA is not 
looking over their shoulders as when MSHA is there--because MSHA cannot 
be there all the time. The Administration supports legislation that 
gives MSHA the enforcement tools it needs to ensure that all mine 
operators live up to their legal and moral responsibility to provide a 
safe and healthful workplace for all miners.
    I hope that we can work together across the aisle and across the 
branches to address at least the following areas:
    Pattern of Violations: There is a reason that no Administration--
Democratic or Republican--has figured out how to effectively apply the 
current statutory POV program. It is broken and can be improved only so 
much through regulation. For example, under some circumstances, the POV 
provisions of the existing Mine Act could potentially put some mines in 
POV status indefinitely while, under other circumstances, it would be 
insufficient to ensure long-term change. While we believe we are making 
significant improvements to the POV program within the confines of the 
current statute, changes to the law that provide MSHA the tools to 
engage in a long-term, more remedial approach with chronic violators 
would be a significant improvement to current law.
    Injunctive Relief: The current law does not have a ``quick fix'' to 
ensure the immediate safety of miners at 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 under section 108(a)(2), the 
current statute could be simplified to help MSHA in making its case. 
The lesson learned is this: the litigation process under the existing 
law is time consuming and does not adequately 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.
    Criminal Penalties: Legislation should strengthen the criminal 
provisions of the Mine Act. No mine operators should be risking the 
lives of their workers by cutting corners on health and safety, but for 
those who would engage in such a practice, we need to put new weight on 
the side of protecting the lives of miners. We hope and intend that 
criminal prosecutions under an enhanced Mine Act would continue to be 
rare. Now they are rare, however, because of the serious obstacles to 
successful prosecutions. We hope that with new legislation they will be 
rare because a more serious law will provide a successful deterrent.
    These enhanced criminal penalties should also extend to those who 
provide advance notice of MSHA inspections. In the aftermath of UBB, 
there were troubling reports of some operators providing advance notice 
of an MSHA inspection in order to hide violations and conduct that put 
miners at serious risk. This is an intolerable evasion of the law that 
is all too common. Increasing existing criminal penalties for these 
tactics would send a clear message that this behavior will not be 
tolerated.
    Whistleblower Protection: New legislation must ensure miners are 
fully protected from retaliation for exercising their rights. Because 
MSHA cannot be in every mine, finding every hazard every day of the 
week, 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 these 
conditions cause an injury, illness or death. Yet, as we heard from 
miners and family members testifying at the House Education and Labor 
Committee's field hearing in Beckley last year, miners were afraid to 
speak up about conditions at Upper Big Branch. 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 a fairer and 
faster process is urgently needed.
                               conclusion
    Thank you for allowing me to testify before the committee. This 
coming Tuesday is the 1-year anniversary of the tragedy at Upper Big 
Branch. Along with the families, we mourn the deaths of these 29 
miners. I know their loved ones want answers about what happened on 
that day, and so do I. The team is moving forward with the 
investigation.
    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.

    The Chairman. Thank you very much, Mr. Secretary.
    Mr. Lewis, welcome to the committee. And, as I said, your 
statement will be made a part of the record. If you could sum 
it up, I would appreciate it.

STATEMENT OF ELLIOT P. LEWIS, ASSISTANT INSPECTOR GENERAL, U.S. 
     DEPARTMENT OF LABOR, OFFICE OF THE INSPECTOR GENERAL, 
                         WASHINGTON, DC

    Mr. Lewis. Good morning, Mr. Chairman and members of the 
committee. Thank you for inviting me to testify today in my 
capacity as the Assistant Inspector General for Audit at the 
Department of Labor.
    I am pleased to discuss the OIG's oversight work relative 
to the Mine Safety and Health Administration and specifically 
our report on MSHA's Pattern of Violations or POV Authority.
    POV authority is an important tool that lets MSHA take 
enhanced enforcement actions when a mine demonstrates recurring 
safety violations that could significantly and substantially 
contribute to the cause and effect of health and safety issues.
    Once MSHA notifies a mine it demonstrates a potential 
pattern of violations, the mines take immediate action to 
reduce future significant and substantial violations or face 
tougher sanctions.
    In response to a congressional request, the OIG conducted 
an audit to determine how MSHA had used its POV enforcement 
authority.
    When we completed our audit in September 2010, we concluded 
that in 32 years, MSHA never successfully exercised its POV 
authority. Specifically, our audit found that MSHA did not 
implement regulations for administering its POV authority until 
1990.
    The regulations require the use of final citations and 
orders in determining a POV; appeal a warning period, both of 
which were not required in the Mine Act.
    We also found that MSHA did not verify the implementation 
of mine operators' written POV corrective action plans.
    While MSHA District personnel reviewed and discussed with 
mine operators the plans they submitted, we found that MSHA did 
not approve, disapprove or monitor those plans.
    Our third finding was that MSHA's POV computer application, 
implemented in 2007 contained logic errors, inconsistencies 
with the stated selection criteria, and an anomaly in one of 
the spreadsheet's formulas.
    The computer application errors had the potential to 
incorrectly include mines that had not met the POV screening 
criteria, as well as to exclude mines that had met the POV 
criteria.
    We found that delays in MSHA's testing of rock dust samples 
from underground coal mines could cause critical delays in MSHA 
identifying serious safety hazards, including the risk of 
explosions.
    We found that MSHA had no performance standard for the 
timeliness of testing these samples, but established a 19-day 
standard before the completion of our audit. We subsequently 
raised concerns that a 19-day standard did not convey an 
appropriate level of urgency for completing these tests.
    Finally, we conducted several what if analyses aimed at 
demonstrating the impact of various changes to the POV model 
criteria. We found that changing certain criteria, most 
notably, the requirements to use final orders, significantly 
affected POV screening results.
    In subsequent work we found that improvements in a mine 
safety record as a result of the POV process was not always 
sustained.
    Mines receiving a potential POV notification reduced their 
rate of significant and substantial violations by an average of 
63 percent in the first subsequent inspection period. However, 
this rate declined to 51 percent after eight inspection 
periods.
    We made 10 recommendations; among these are evaluating the 
appropriateness of requirements in the POV process that were 
not included in the Mine Act, establishing guidance on the 
preparation, review, and monitoring the mine operators' POV 
corrective action plan, and reevaluating the performance 
standard for timely completion of laboratory tests of rock dust 
or any other samples that yield enforcement-related data.
    Our oversight work in the area of mine safety and health 
continues. We currently have one audit in progress to determine 
whether MSHA effectively and timely collects civil penalties 
from mine operators.
    In the near future, we plan to assess whether MSHA's 
laboratories are providing timely and quality services in 
support of MSHA's inspection and investigative 
responsibilities.
    We will also audit metal/nonmetal mandatory inspections and 
its oversight of miner training.
    Mr. Chairman, thank you for the opportunity to testify on 
our work. I would be pleased to answer any questions that you 
or any members of the committee may have.
    [The prepared statement of Mr. Lewis follows:]
                 Prepared Statement of Elliot P. Lewis
    Good morning, Mr. Chairman and members of the committee, I 
appreciate the opportunity to discuss the OIG's oversight work relative 
to the Mine Safety and Health Administration (MSHA) and specifically 
our report on MSHA's Pattern of Violations (POV) Authority. As you 
know, the Office of Inspector General (OIG) is an independent entity 
within the Department of Labor; therefore, the views expressed in my 
testimony are based on the findings and recommendations of my office's 
work and not intended to reflect the Department's position.
    As we approach the 1-year anniversary of the Upper Big Branch mine 
disaster, which took the lives of 29 miners, we are reminded of the 
incredible sacrifices that workers make every day and the Department's 
responsibility to ensure worker safety and health.
                          msha oversight work
    Over the years, the OIG has devoted significant resources to 
providing oversight of MSHA's safety and health responsibilities. For 
example, previously issued audits found that:

     MSHA's Accountability program, established to ensure that 
mine inspection responsibilities are performed effectively, was not 
well designed and needed to be strengthened.
     MSHA was not fulfilling its statutory inspections mandate 
due to resource limitations and a lack of management emphasis on 
ensuring that inspections were completed.
     MSHA did not have a rigorous, transparent review and 
approval process for roof control plans consisting of explicit criteria 
and plan evaluation factors, appropriate documentation and active 
oversight.
     MSHA did not ensure its journeyman inspectors received 
required periodic retraining, therefore the inspectors may not have had 
the up-to-date knowledge of health and safety standards or mining 
technology.

    Consistent with the committee's request, I will focus my testimony 
on the Pattern of Violations Audit that we conducted after the disaster 
at the Upper Big Branch Mine.
                      pattern of violations audit
    Last year's explosion at the Upper Big Branch Mine South in 
Montcoal, WV, raised concerns about the mine's safety record and MSHA's 
process for identifying mines with a potential pattern of violations. 
These concerns were amplified when MSHA reported that a computer error 
had omitted Upper Big Branch from the potential POV list. This omission 
precluded MSHA from (a) warning the mine operator that the mine 
demonstrated a potential pattern of violations and (b) initiating 
closer monitoring of the mine's rate of significant and substantial 
(S&S) violations.
    POV authority is an important tool that lets MSHA take enhanced 
enforcement actions when a mine demonstrates recurring safety 
violations that could significantly and substantially contribute to the 
cause and effect of health and safety issues. Once MSHA notifies a mine 
it demonstrates a potential pattern of violations, the mine must take 
immediate action to reduce future S&S violations or face tougher 
sanctions.
    In response to a congressional request, the OIG conducted an audit 
to determine how MSHA had used its POV enforcement authority. We were 
also asked to review MSHA's policy, criteria, regulations, and 
information systems regarding POV sanctions to determine whether they 
were reliable and effective in determining and sanctioning habitual 
violators.
    During the course of this audit, we became aware that MSHA had, at 
times, set arbitrary limits on the number of potential POV mines to be 
monitored in any single district. The OIG was very concerned about 10 
mines that may have been excluded for reasons other than appropriate 
consideration of the health and safety conditions at those mines. We 
immediately relayed our concerns to MSHA, which subsequently 
discontinued that policy and re-examined the safety and health 
conditions at those mines.
    We completed our audit in September 2010, and concluded that in 32 
years, MSHA had never successfully exercised its POV authority. We 
determined that successful administration of this authority had been 
hampered by a lack of leadership and priority in the Department across 
various administrations. This allowed the rulemaking process to stall, 
and fall victim to the competing interests of the industry, the 
operators, and the unions representing the miners as to how that 
authority should be administered. Specifically, our audit found that:

     MSHA did not implement regulations for administering its 
POV authority until 1990, even though it had the authority to do so 
since 1977. The regulations MSHA implemented in 1990 created 
limitations on its authority that were not present in the enabling 
legislation; specifically, requiring only the use of final citations 
and orders in determining a POV, and creating a ``potential'' POV 
warning to mine operators and a subsequent period of further evaluation 
before exercising the POV authority. This made it difficult for MSHA to 
place mines on POV status. According to MSHA officials, in the 17 years 
that followed--from 1990 until mid-2007--MSHA district offices across 
the Nation operated with limited guidance from the national office and 
performed POV analyses based on individual interpretations of 
requirements. District offices were responsible for conducting the 
required annual POV screening of mines, but never put any mine operator 
on POV status. In 2007, MSHA made its first attempt to implement a 
standard quantifiable method for screening and monitoring potential POV 
mines.
     MSHA did not verify the implementation of mine operators' 
written POV corrective action plans. POV regulations gave a mine 
operator who received a potential POV warning reasonable opportunity to 
institute a program to reduce repeated, S&S violations at the mine. The 
regulations gave mine operators an opportunity to submit a written 
corrective action plan, which would give them additional time before 
MSHA made a determination of the mine's POV status. Most mine operators 
submitted a written corrective action plan, even though regulations did 
not require them. While MSHA District personnel reviewed and discussed 
with mine operators the plans they submitted, we found that MSHA did 
not approve, disapprove or monitor these plans. In addition, the nature 
and basis of MSHA's reviews also varied based on each District 
Manager's interpretation of the POV criteria and process. As a result, 
MSHA could not demonstrate that these corrective action plans had any 
role in subsequent declines in violation rates.
     Three logic errors caused unreliable results from MSHA's 
POV computer application. MSHA's POV computer application, implemented 
in 2007 in connection with the POV model, contained logic errors, 
inconsistencies with the stated selection criteria, and an anomaly in 
the spreadsheet formulas used to identify mines having more than five 
S&S violations of the same standard. These deficiencies occurred 
because the computer application was not developed, tested, maintained, 
and documented in the disciplined and structured manner normally 
associated with major computer applications.
    To demonstrate the potential impact of these errors, we ran both 
MSHA's uncorrected program and the OIG's corrected program against a 
copy of the enforcement data as of May 10, 2010. MSHA's uncorrected 
program produced a list of 17 mines for potential POV evaluation. The 
OIG's corrected program, run against the exact same data, produced a 
list of 21 mines for potential POV evaluation. Our test results showed 
that the computer application errors had the potential to incorrectly 
include mines that had not met the POV screening criteria, as well as 
to exclude mines that had met the POV screening criteria.
     Delays in Testing Rock Dust Samples. Our audit also 
identified a lack of timeliness in MSHA's testing of rock dust samples 
from underground coal mines that could cause critical delays in MSHA 
identifying serious safety hazards including the risk of explosions.
    Mine inspectors do not currently have a way to measure rock dust 
samples on- site during an inspection; therefore, they must collect and 
send samples to MSHA's National Air and Dust Laboratory. Lab personnel 
test the samples and report the results to the mine inspector. Based on 
the reported results, the inspector determines whether a violation had 
occurred and a citation should be issued.
    According to lab personnel, fluctuating workloads and the 
laboratory's recent participation in the National Institute for 
Occupational Safety and Health (NIOSH) evaluation of a portable dust 
meter, affected how quickly rock dust samples were tested after they 
were received. During the spring and summer months, rock dust samples 
were normally tested and the results were reported to mine inspectors 
in 2-3 days. However, during fall and winter months, inspectors collect 
a higher volume of samples because cold air dries out mine surfaces and 
increases the risk of explosions. During these periods of increased 
risk and workload, it could have taken 2 or 3 weeks to test and report 
results.
    The handling of some rock dust samples from the Upper Big Branch 
mine illustrates the critical importance of completing these tests in a 
timely manner. On March 15, 2010, a mine inspector collected 14 rock 
dust samples from Upper Big Branch Mine during an inspection. Lab tests 
were not completed until 2 days after the April 5, 2010 accident. The 
results showed that one of eight samples tested (six samples contained 
too much moisture to test) did not meet regulatory standards. Based on 
these results, MSHA issued an S&S citation on April 13, 2010.
    We found that MSHA had no performance standard for the timeliness 
of testing these samples. As a result of our concerns, on July 29, 
2010, MSHA directed that rock dust samples were to be tested and the 
results reported to mine inspectors within 19 calendar days. However, 
the OIG told MSHA management that 19 days did not convey an appropriate 
level of urgency for completing tests related to safety hazards within 
a mine. MSHA is currently upgrading its National Air and Dust 
Laboratory and has indicated that the performance standard will be 
revisited when the upgrade is completed in July 2011.
     Changing certain criteria significantly affects POV 
screening. In an effort to provide information that may be helpful in 
MSHA's stated goal to revise the criteria and procedures, we conducted 
several ``what if '' analyses aimed at demonstrating the impact of 
various changes to the then-existing criteria on the number of mines 
(a) identified as having a potential pattern of violations and (b) 
meeting MSHA's improvement metrics.
    For example, eliminating the POV model's requirements for final 
orders resulted in the most significant change. This modification 
produced a list of 91 potential POV mines versus a list of 16 when only 
final orders were used.
    Furthermore, while 94 percent of potential POV mines met MSHA's 
improvement metrics within the first inspection period following 
receipt of their notification letter, fewer mines would have satisfied 
those standards if evaluated over a longer period of time. After two 
inspection cycles, 89 percent of mines still satisfied the improvement 
metrics. After three inspection periods, the success rate decreased to 
85 percent.

    After the release of our audit, we were requested by a House of 
Representatives committee to perform an expanded analysis of mines that 
had received potential POV notifications to determine the extent to 
which safety improvements were maintained over a longer period of 
time.\1\ Mines receiving a potential POV notification from MSHA reduced 
their rate of S&S violations by an average of 63 percent after one 
subsequent inspection period; but the average reduction rate declined 
to 51 percent after the 8th subsequent inspection period.
---------------------------------------------------------------------------
    \1\ OIG Report No. 05-11-002-06-001, ``Pattern of Significant and 
Substantial Violation Rate Extended Analysis,'' issued December 15, 
2010.
---------------------------------------------------------------------------
    On September 30, 2010, MSHA announced more stringent POV 
improvement provisions. MSHA currently requires mines to implement 
appropriate corrective action programs that achieve a 50 percent 
reduction in the rate of S&S violations, or a rate within the top 50 
percent for all mines of similar type and classification. Furthermore, 
mines that do not choose to implement corrective action programs need 
to meet a more stringent improvement metric--a 70 percent or more 
reduction in their S&S issuance rates or a rate within the top 35 
percent for all mines of similar type and classification.
                       pov audit recommendations
    Our POV audit contained 10 recommendations to MSHA. Specifically, 
Mr. Chairman, we recommended that MSHA:

     Evaluate the appropriateness of eliminating or modifying 
limitations in the current regulations, including the use of only final 
orders in determining a pattern of violations and the issuance of a 
warning notice prior to exercising POV authority.
     Seek stakeholders' input (e.g., miners, miner 
representatives, mine operators) in the development of POV screening 
criteria, but assure that the process, including rulemaking, is not 
stalled or improperly affected because of competing viewpoints.
     Assure that POV selection criteria are sufficiently 
transparent to allow stakeholders to reasonably determine an individual 
mine's status at any point in time.
     Assure that POV decisions are based solely on the health 
and safety conditions at each mine.
     Implement a standard process for documenting all factors--
both quantitative and non-quantitative--used to make POV decisions.
     Establish guidance on the preparation, review, and 
monitoring of mine operators' POV corrective action plans.
     Eliminate the requirement that mines be in an ``active'' 
status to be screened for a pattern of violations.
     Use system development life cycle techniques (analysis, 
design, test, implement, and maintain) to reduce the risk of errors in 
any POV-related computer application.
     Re-evaluate the performance standard for timely completion 
of laboratory tests on rock dust or any other samples that yield 
enforcement related data, including addressing workload fluctuations 
and resources needs.
     Examine its process and metrics for monitoring the 
improvement of potential POV mines to increase the likelihood that 
improvements are not temporary.
                current concerns and planned audit work
    The committee also requested that the OIG discuss any serious 
pending matters stemming from prior OIG work. We have one pending 
matter that would require legislative action. The OIG recommends a 
technical review of the existing language under Section 103(k) in the 
Mine Act to ensure that MSHA's long-standing and critically important 
authority to take whatever actions may be necessary to protect miner 
health and safety, including issuing verbal mine closure orders, is 
clear and not vulnerable to challenge.
    Mr. Chairman, our oversight work in the area of mine safety and 
health continues. We currently have one audit in progress to determine 
whether MSHA effectively and timely collects final civil penalties from 
mine operators. In the near future, we plan to assess whether MSHA's 
laboratories are providing timely and quality services in support of 
MSHA's inspection and investigative responsibilities. We will also 
audit MSHA's oversight of miner training. In addition, we plan to audit 
MSHA's Metal/Nonmetal mandatory inspections.
    Mr. Chairman, thank you for the opportunity to testify on our work. 
I would be pleased to answer any questions that you or any members of 
the committee may have.

    The Chairman. Thank you very much, Mr. Lewis.
    We'll begin now, a series of 5-minute rounds of questions.
    Mr. Main, even outside the context of the pattern of 
violations process, MSHA can get an injunction to close down 
the mine if operation of the mine poses a continuing hazard to 
mine operators.
    Like the pattern of violations, this authority had never 
been used prior to your tenure. At the hearing last year you 
heard from us about that.
    I want to give credit where credit is due. My understanding 
is that since then, MSHA has used that authority to get an 
injunction and close down a dangerous mine.
    My question is this: Can you tell us about the 
circumstances of that injunction--and you mentioned that there 
were four things that we need to do, you think, legislatively: 
The first one was fix the broken POV system. Why do we need to 
fix the pattern of violations process if MSHA has the authority 
to close the mine under a different provision?
    Mr. Main. I think starting with the first part of that, 
yes, MSHA did for the first time use the authority under 
Section 108 of the Mine Act to seek an injunction, to force a 
mine operator to change the way it was doing business, that we 
believed that was placing miners in harm's way. This particular 
mine had nearly 2,000 citations over a 2-year period; had been 
issued over 80 orders; and when we examined the conditions of 
the mine, it was very clear to us that we needed to take 
extraordinary action.
    In doing so, we found that this is not a simple process. It 
does take time. And for those that may think that we have this 
magic provision, that we can go in and shut down a mine, it 
really doesn't exist. This is, I think, one of the closest 
things that anyone's ever used to get to that point.
    What we have to do is to take a case and prove it to a 
judge that this mine merits the kind of action that we are 
requesting, and there's no guarantee about the outcomes of 
those.
    In this particular case we were lucky to have reached a 
settlement with the mine operator, and we did achieve the goal 
that we had sought, which is to force the company to put into 
place plans and programs, in addition to what regulations the 
Mine Act currently had, to improve the working conditions of 
those miners.
    In retrospect, having tried the law, we think that we need 
to look at this and discuss more legislation to try to find 
something that works swifter, where action is needed.
    The Chairman. Of course, that raised a question in my mind, 
I mean, when you--sort of like using the atom bomb. When you 
close down a mine you put a lot of miners out of work, too. 
And, so if there's things that you can do, step by step, to get 
them to fix up their violations so that the mine can continue 
to operate, it seems to me that's the best way to proceed.
    And, second, you mentioned strengthening the criminal 
aspects of the Mine Act. Could that be helpful in making these 
mine operators meet safety requirements without going to the 
extent of shutting the mine down?
    Mr. Main. What we seek to achieve is to have the mine 
operating both in compliance with the law and protecting the 
miners. And the course that we chose at the Freedom Mine that 
we talked about where the injunctive action was sought, was to 
force the company to put into place plans and protections that 
would take those miners out of harm's way.
    The intent was not to close down a mine and eliminate the 
jobs. The intent was to fix the problem. And, I think moving 
forward, as you see how we're structuring a number of our 
enforcement programs, it is designed to accomplish just that. 
And, I think that's the best approach that we need to take, is 
to be able to take immediate action, though, where action is 
necessary immediately.
    The Chairman. The last question I have before my time runs 
out is, the fourth point you had was--my own language was 
protecting whistleblowers.
    Now, we heard from Jeffery Harris last year. You mentioned 
him in your written testimony also, about his testimony, and 
others. It seems to me that as we look at it--at least as I 
look at it, whistle-blower protection for miners are outdated, 
and they don't offer the same protections as modern whistle-
blower laws like Sarbanes-Oxley, so, shouldn't miners have the 
same whistle-blower protection as the stockbrokers? And I hope 
that you have some suggestions for us because I do believe that 
this is one key area that we have to focus on. That is to 
protect people who come forward at risk of losing their jobs, 
or being laid off or other disciplinary action, so they are 
able to give us the information we need.
    So, whatever suggestions you have on that, I'd like to see 
them.
    Mr. Main. I think there is a lot of discussion in the 
legislation that was being crafted last year that had some very 
reasonable and logical outcomes to protecting miners who speak 
out, but I think that the committees from Congress who 
conducted investigations into the tragedy last year--held 
hearings, I should say--gained, I think, a wealth of 
information about what's going on in some of these mines, and 
there is real fear of these miners to speak out.
    It was just not in Upper Big Branch. If you look at the 
outcomes of some of the impact inspections--I'll give you an 
example of one in September, when we went into a mine late in 
the evening when nobody thought we would show up. We 
commandeered the phones, which is not an easy task to do.
    For the inspectors to get on a mine property pass, 
everybody has a cell phone, and a CB radio as far as the 
trucking folks go, to get on the ground, but they did, and when 
they arrived on the ground, on the mining section, they found 
that the ventilation control was not in place. And these are 
controls that are needed to prevent mine explosions, prevent 
black lung disease.
    The dust was so thick that the inspector could hardly see 
this huge continuous mining machine. You have to ask yourself 
some questions.
    This was well after Upper Big Branch. This is when we all 
understood the consequences of taking actions that have been 
identified after Upper Big Branch Mine.
    Why were the miners working in such conditions? Why 
wouldn't they speak out? What was the mine operator thinking 
about? What did he expect the ramifications for a Mine Act to 
be, to do that? I have to say that that mine, in September, was 
not the only mine where we're finding this kind of conditions; 
and that's where we have our greatest worry. What goes on in 
those mines when MSHA's not there, can't be there? What is it 
that we need to do to provide those miners who work at an 
occupation in this country, to have enough faith that they can 
speak out and cause these conditions to be corrected?
    What can we do to have those mine operators think like a 
lot of other mine operators who run mines every day, that 
respect the law?
    Those are why we think pieces of legislation are needed in 
those areas.
    The Chairman. Thank you, Mr. Secretary.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    In my opening remarks, Mr. Main, I mentioned a report that 
had been given to Chairman Harkin and the Appropriations 
Committee even prior to the Upper Big Branch that brought to 
light problems at the agency, and we learned about it through 
an article early in March. Chairman Kline, who is our 
comparable committee on the other side of the Hill, requested 
those reports, and others going back to 2007.
    Has that request been complied with?
    Mr. Main. I think our folks are in the process of complying 
with that. I think one of the central issues is that the audits 
are both performance audits and individual accountability 
audits that's tied in with that; so there's some privacy issues 
that's being addressed in terms of making sure that the 
information--we are going to provide the information, yes. Just 
making sure we do it in good proper response.
    I understood that you had requested that as well. We'll be 
more than happy to provide that.
    Senator Enzi. I have joined them in the request primarily 
because it's so late in coming. I mean, this is a report that 
went out a year ago.
    And if it went to the Chairman of the Subcommittee on 
Appropriations, it seems like you would have already vetted all 
the privacy stuff. It seems like it would have been like a 2-
day thing in the mail?
    Mr. Main. Yes, we would.
    Senator Enzi. One of the reasons I'm frustrated is because 
in every department that I'm working with I have made requests, 
and other people on the Republican side of the committee have 
made requests, and we're not getting information. And we get 
kind of frustrated.
    Mr. Main. If I may clear up here and provide some 
understanding, because the report that was provided to the 
Appropriations Committee, it was provided to both the House and 
the Senate and both the Chairman and the Ranking Minorities. 
That report is out in public.
    What is the substance of the request is all the reports 
that went into making the report. There are several of those 
reports. There is something like 60-plus reports. And that's 
what's being evaluated now to make sure that, as we provide the 
information to you, that we do it in a proper way.
    But it is forthcoming, the actual report itself, that was 
sent to both the Senate and the House. It is actually a public 
document.
    Senator Enzi. OK. Now since last June, the Charleston, WV, 
Gazette's report on its efforts to obtain MSHA records 
regarding two significant methane outbursts at the Upper Big 
Branch Mine in 2003 and 2004, and your agencies preliminarily 
indicated that extreme levels of methane buildup were likely 
the cause of the Upper Big Branch explosion.
    Why have you denied the Freedom of Information requests 
regarding documents which highlight what your agency may or may 
not have known about the pockets of methane located beneath the 
coal scene at the Upper Big Branch?
    Mr. Main. Yes, I think, again, to put things in 
perspective, I've been doing investigations for longer than I 
care to mention--a good 30 years, and I've worked MSHA jointly 
in these investigations: The Wilberg tragedy, the Jim Walter's 
mine disaster, the Greenwich explosion--a number of those. And, 
traditionally, it has been the case of the agency to conduct 
investigations, amass all the evidence and information; and 
when they conclude their evaluation, they put out a report and 
release all the information with that.
    And, on the heels of that--this goes back to, I think the 
Pyro tragedy in 1989. MSHA, on the tail end of their 
investigation issues an internal report. The differences have 
been--what we've done this time--which I think we've put out 
more information than ever has been, with the exception of the 
Sago Mine explosion, which I'm sure you're familiar with, in 
2006, and what we try to do is temper the balance of what we 
need to assure that stays within the confines of the 
investigation until the investigation pool desk has 
historically been done, and release whatever information we can 
to the public.
    The other complication we have is that starting jointly 
with our investigation, so did the Department of Justice. First 
time in history. Like I say, I've been doing this for decades. 
First time in history there's ever been such an involvement by 
the Department of Justice on the front end.
    And, to assure that we do not do anything to jeopardize 
their investigation, it has created some complications in the 
way that we proceed with our investigation. And we have assured 
the Department of Justice that as we proceed, we're not going 
to do anything that would jeopardize the investigation that 
they are conducting.
    That's the long answer, but it's how investigations have 
been traditionally----
    Senator Enzi. You realize the longer it takes for these 
documents to get out, the more that it looks like MSHA knew 
more than they did, and could have done more to prevent what 
happened; and that there's some kind of an effort to cover up 
with the whole process.
    One of the reasons people want to look at these records is, 
it's reported that Massey Energy had submitted plans and saw 
the de-gasification wells, and maybe they'd been approved and 
maybe they hadn't.
    But, without these reports regarding the previous methane 
outburst, it seems impossible to determine whether or not these 
degasification wells could have saved lives.
    So, could you provide us with more insight into these 
Massey claims?
    Mr. Main. We have set June 29 as the day that we plan to 
release what we believe is releasable in terms of information 
regarding the investigation. We think it will be in a position 
of winding up the underground investigation, be out of the 
underground shortly. We're wrapping up interviews, and we're 
reviewing just hundreds and hundreds of documents.
    It is our plan to try to amass that information and put it 
out in some context as to what it means; and keeping in mind 
whatever we do, we're going to balance that with the Justice 
Department to make sure that we don't create a problem there.
    I would remind folks, too, that if you look back at some 
historical mine disasters--we've got Jim Walter's disaster in 
2001--it is, I think, 15 months before the agency ever released 
its report and information.
    Senator Enzi. You're doing something rather incredible 
right now, and that's announcing a specific date for release of 
the thing, 3 months in the future.
    If you're that specific on it already--I mean, June 29th is 
3 months----
    Mr. Main. We've talked to our investigative team; we have 
had discussions with the other Federal agencies; we've had 
discussions with our own folks, and we feel comfortable at this 
stage that we're going to be able to produce information that 
will be of value by June 29th. And, we're working toward that.
    Senator Enzi. Pretty incredible. My time is more than up, 
sir.
    Mr. Main. All right, thanks.
    The Chairman. Senator Manchin.

                      Statement of Senator Manchin

    Senator Manchin. Thank you, Mr. Chairman. Thank you for the 
courtesy you've extended to myself and Senator Rockefeller, who 
couldn't be here today, and I have some questions later on, on 
our second round that I'll ask on his behalf.
    We're, as you know, both representing the State of West 
Virginia. As the Governor of the State of West Virginia 
previously, three of these horrible tragedies happened, which 
was Sago in 2006, Aracoma followed 3 weeks later; and then last 
year, UBB, as we came up on our 1-year anniversary. Our hearts 
are still heavy, and we're very much in contact with the 
families, whose lives have been changed forever.
    The coal miners in West Virginia--and I'm sure around the 
country--and I know that Senator Rand Paul will have the same 
feeling that I have--that they're the salt of the earth; 
they're hard workers; they're patriotic people; they provide 
for their families; they work hard; they don't ask for an awful 
lot.
    But what they do ask for is safe conditions. And, I've told 
every miner, I don't intend, in West Virginia to have one miner 
in an unsafe condition; nor should a family expect them not to 
return home safely. We've done everything humanly possible, and 
we're continuing to.
    After Sago and Aracoma, I knew immediately that we had to 
have rapid response; we had to have tracking communications; we 
had to have shelter and oxygen, because we know at Sago with 
those things, we'd have saved 12 miners.
    This was a horrific explosion; and back when I was growing 
up in Farmington, WV in 1968 was the last time we ever had any 
of these safety changes that were made.
    With all that being said, as the 1-year anniversary--again 
I say, our prayers and thoughts go out. I want to say to you, 
Mr. Main, and Mr. Stricklin, your entire group, I worked with 
you, sat with you for 5 days and 5 nights. I know the 
dedication you've committed. I'm not here to put the blame--and 
the sins of the past, and people want to make a political--the 
bottom line is, we're going to need to fix things.
    The difference is with Sago, we knew we needed a change. We 
knew we could, and we changed it in 1 day in West Virginia, 
which was unheard of. I brought Democrats and Republicans, and 
I said, this is the time to be a West Virginian. Don't worry 
about the politics. We've got to fix things and make it safer. 
We can't let a miner and the families go through what we've 
just seen.
    We changed it, and you all took it, and I commend both the 
Chairman and the Ranking Minority Member here, Mr. Enzi, for 
taking that, running and making those changes.
    What we're trying to grapple with now, I think, Mr. Main 
and Mr. Lewis, is with your audit and everything. We appreciate 
that. We don't know which way to go right now. How do we 
enforce it? It's not being enforced. How do we make the agency 
enforce it or do its job?
    I'll give you an example: We put a hotline in, in West 
Virginia. You're talking about whistle-blower and all the 
different things. Since May 7, after the explosion in April of 
last year, through June--one month, we had 16 calls to that 
hotline. I guaranteed every miner. I said, you should be 
empowered to make a call and we'll protect you. From July 2010 
through the present we've had 70 calls on our line, trying to 
make sure--and I'm sure it's led up to them. And, we've 
coordinated that with MSHA.
    What we're looking for right now is the significant and 
substantial violations. The things that causes deaths in mine 
explosions are things of this sort: ventilation. If it's not 
ventilated properly it will build up with fuel. The fuel's 
going to be basically, either methane, which ventilation will 
take care of, or coal dust, which rock dusting can take care of 
that, if it's done properly to hold that lethal powder down, if 
you will.
    Those types of violations--I can't see how we would 
tolerate at all when we have a pattern of someone that is not 
continuing to keep up--why we shouldn't be able to shut them 
down.
    What we're grappling with here, if you have the power, why 
don't you use it? Not you. Why hasn't the agency used it over 
the year? If there's a flaw, and allows basically, different 
companies to skirt that and play Lucy Goosey, then we've got to 
change that. That's what we're looking at right now.
    We're waiting for, I think, the direction. I know that 
there's--this is going in two directions: Criminal 
investigation and both the civil investigations, to see how we 
can make it better. I know I've used my time already on this, 
but I think what we're saying is--can you tell me in what 
districts the coal production has gone down or increased? And, 
is it relative to the amount of violations you've seen?
    That would probably be my first question, and I'll come 
back to my second round.
    Basically, the amount of coal being produced--the different 
districts, and does the coal production--basically, is it 
relative to the amount of violations you see?
    So, as we're pushing more coal, we're going for production. 
Are you seeing that now, disregard for safety, and just mining? 
Have you all evaluated that?
    Mr. Main. One of the things right after the Upper Big 
Branch Mine that I initiated was the Special Impact Inspection 
Program. That helped us identify mines, wherever they were, 
that were having health and safety or violation rates that were 
on the highest levels in the country.
    That was one of the criteria we used to target mine impact 
inspection. I can tell you this, even though there's a number 
of mines that are targeted in Appalachia, it's just not 
Appalachia.
    We have mines that are having difficulties figuring out how 
to comply with the health and safety standards. They're all 
over the country. A large number of those in Appalachia; a 
large number of those in District 4, MSHA District 4, 6, 7--in 
that region.
    Senator Manchin. Mr. Lewis, just very quickly, if I may, 
Mr. Chairman.
    The Chairman. Go on.
    Senator Manchin. What is the one thing, through your audit, 
that probably startled or surprised you more than anything?
    Mr. Lewis. I think in this most recent audit, where we 
looked at the POV process, was what we weren't really looking 
for, but ran into with the testing labs and not having the 
standard and how long it might take to turn around samples that 
would have a more immediate effect on the safety in the mine.
    Senator Manchin. You two have been working on that 
together?
    Mr. Main. Yes, actually, we worked quite well with the 
Inspector General's Office. And, I'll tell you something about 
the lab. It was put in, in southern West Virginia right after 
the 1969 Mine Act, and it's been in there ever since.
    One of the things that it brought to our attention was the 
need to take a look at all these pieces of infrastructure 
that's been in MSHA all these years and not been subject to an 
evaluation. And, actually, we're working to look at all of our 
labs now.
    Senator Manchin. Thank you, Mr. Chairman.
    The Chairman. Thank you. I try to keep you to 5-minute 
rounds so that everyone gets at least a chance to ask at least 
one question or two. But, we can always have a second round.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Mr. Main, thank you for being here today. 
In 2006 I went with Senators Rockefeller, Enzi, and Kennedy to 
the Sago Mine 2 days after that disaster, and a young lady by 
the name of Ms. Emmer gave me this picture which I keep with me 
every day since. That's her dad, Junior Emmer, who died in the 
Sago Mine disaster a few days after Christmas. And, she told 
me, when she gave me the picture, she said, I want you to keep 
this with you to remember this is what you're responsible to. 
Don't let this happen to any other miner in West Virginia.
    Now, I've kept it with me for that reason, because it is 
important to understand the importance of the impact of what we 
do.
    I've got a couple of questions that will sound critical, 
but I'll try to be very objective about MSHA and its operation.
    First of all, in terms of Upper Big Branch, even though 
it's been said in testimony and statements that there were 
difficulties in that mine, you never took advantage of the 
flagrant violation rule and assessed it against the Upper Big 
Branch before the explosion; yet you did it in 125 other 
instances, in other mines across the country.
    We gave you that authority after the Sago Mine disaster in 
the MINER Act. Do you know why it wasn't used in the case of 
Upper Big Branch?
    Mr. Main. Yes. Actually, we've used it 142 times--the 
number of times that the pooling has been assessed. And, that's 
something that we're taking a look at, as part of the look back 
of the portion of history prior to the Upper Big Branch 
tragedy.
    We're going to have to sort out what that means. I'll add 
in the context, too, of all of this is that one of the problems 
that I think exists is one that Congress has helped us out with 
and we need more help with our backlog issue in terms of the 
way we assess penalties and what happened to them.
    When I look at the number of mines that are contesting a 
large number of penalties that we're issuing, and I look at 
those being stacked up 2, 3, 4 years before they ever get to 
the process, I'm worried about the flagrant violations as well, 
which we have cited. The first ALG decision we announced this 
past week, the violation, I think occurred in December 2006; 
but the delay that's in this whole penalty process that is as 
much of the problem as the penalties that we are issuing. And, 
we have a terrible problem with this backlog of cases. We have 
got to get those flushed out so penalties mean something, so, 
those who are cited doesn't have the belief that they're going 
to get a huge discount as they wait.
    And, I just looked at the numbers here recently: 1,369 
mines last year contested over half of the violations they were 
cited. I mean, it gives you a trend here. Yes, we need to be 
using flagrance, I think more than what we had. We're looking 
at that, and looking back. But this whole penalty system is--
there's such a logjam here, that I really worry about that.
    Senator Isakson. I'm glad you brought that up, because let 
me make a point. This is an observation I have from my 
experience in mines in Georgia. We don't have deep earth mines 
like coal mines. We have a lot of surface mines in Kaolin 
minerals and things like that.
    We've had some difficulties with inconsistencies of MSHA 
inspections in Georgia, and in particular, inspectors. I notice 
in the I.G.'s report, there was a comment about arbitrary 
limits on the number of pattern of violations fines that were 
being levied by MSHA in terms of that.
    And, then Senator Harkin referred a minute ago--I was in 
the hearing here a year or so ago when MSHA was talking about 
having authority to close the mine when they already had the 
authority to get an injunction to close the mine and never used 
it. And, I think the Chairman mentioned they finally did use 
it.
    It seems to me like there's an inconsistency of enforcement 
in the agency which contributes to the number of complaints you 
have or number of contentions you have in terms of the fines 
that are levied.
    I do understand that there would be mine companies that 
would just challenge every one of them, or challenge the 
preponderance of them. But, in the case of my experience in 
Georgia, when I called it to the agency's attention, they found 
out they were inconsistently, in the case of one region, 
assessing fines and violations; that there is an inconsistency 
in the agency in the assessment of violations that raises the 
question, why there would be a challenge by the mines and begs 
the question, why would a terrible disaster like Upper Big 
Branch, if flagrant violation was never used when it had been 
used, as you say, in 142 other cases?
    I would just point out that inconsistency of enforcement or 
using the tools that you have may be contributing to the 
challenge that you have in other mines.
    Mr. Main. I think in response to the questions that you 
have raised, we have taken--the day that I came here, and this 
is something that we had a discussion about in my early days, 
about looking at how we improve consistency in the application 
of the Mine Act.
    I realize that half the inspectors I had the day that I 
started the job had about 2 years or less. And, we've had 
discussions about that in the past. And there is a need for us 
to put into place mechanisms to improve our overall consistency 
as we go forward.
    One of the things that it answers the audits that was 
raised. I mean, we've done audits in the past. We're going to 
continue to do audits in targeted areas to try to figure out 
where would we have some inconsistencies or need to improve 
performance. And, what we do with that information is apply 
that, to try to fix those.
    We launched a special program for training our supervisors 
this past summer. This is a 2-week training program. And one of 
the key things that it deals with is all these audits and 
internal reviews--all the findings of those, and these 
inconsistency issues.
    We've also launched late last summer, an effort to revise 
our entire mine inspection program to get that information back 
in, to trade it back in to our inspectors through the 
procedures we use.
    I just met, about a week ago, with our CLR--those are the 
staff that actually resolve the contested violations within 
MSHA--about improvements in performance.
    But, I have to say this: That at the very beginning, the 
first staff that I looked at was, are we writing paper that was 
bad? And the answer to that question in 2009 and 2010 was no. 
Less than 1 percent of the paper that we issue as a violation 
sticks as a violation. And, what that tells me is that the core 
problem here is that we need to get the industry more focused 
on finding and fixing the violations within the workplace.
    And, if we can accomplish that, what happens is that we 
cite less violations, we're citing less orders. Instead of the 
company writing checks to lawyers or to the U.S. Treasury, 
we're plowing that money right back into the mines. And, the 
miners have it best of all, because they have an improved 
health and safety program.
    What Senator Enzi was talking about, the mining company is 
far superior than what we have, as far as the standards under 
the Mine Law, that's what we strive to have in the industry. 
The different mining companies looking at those mining programs 
and making improvements.
    But, consistency is something we're working on; and we'll 
continue to work on it. I think we're making progress, but I 
think at the end of the day, there's an operator responsibility 
here we can't lose sight of, to operate the mines, to have a 
responsibility to put into place health and safety programs, 
inspect, to find and fix the conditions. If they did that, we'd 
be finding less.
    Senator Isakson. OK. Thank you.
    The Chairman. Thank you.
    Senator Paul.

                       Statement of Senator Paul

    Senator Paul. Thank you, Mr. Chairman.
    Thank you for coming today. I, like Senator Manchin, have 
lots of miners in my State, and we are concerned about their 
safety; and our hearts do go out to families of those who lost 
loved ones at Upper Big Branch.
    That being said, every regulation doesn't save lives. And, 
there is a point or a balancing act between when a regulation 
becomes burdensome enough that our energy production is 
stifled. We have to assess the costs of regulation and whether 
they save lives, and whether some are simply burdensome on the 
production of energy.
    One of the rules that I'm concerned with is the Respirable 
Dust Rule that's being promulgated. There's evidence that we've 
been doing, actually, a pretty good job with reducing black 
lung over the years. From the passage of the Mine Act in 1969 
the prevalence of black lung has been reduced from 33 percent 
to 3 percent. I think we've been doing a good job. And do we 
always want to do better? Yes, we'd like to do better. We need 
to weigh, basically, whether or not that's going to save lives; 
whether it's going to improve health versus whether or not it's 
going to raise the cost of business.
    MSHA has estimated that it will cost $30 million for the 
entire industry. We have industry estimates saying that it 
could cost $30 million per mine. There's a bit of a discrepancy 
in what the cost will be.
    What I'd like to see from you would be the reports, the 
health reports talking about whether or not black lung is an 
increasing problem, a decreasing problem; whether or not we're 
looking at pneumoconiosis versus silicosis.
    But, the data behind the promulgation of the rule, I 
understand we've asked for them and we haven't gotten those 
reports. I'd like to see those health reports and know when we 
can be provided the data that went into determining the 
Respirable Dust Rule. Can you tell me when we can get that 
information?
    Mr. Main. I don't know that we have any standing requests 
of U.S. reports. I know that MIOSHA has standing requests for 
reports that they have issued, and we have been working, 
actually, with the mining industry to----
    Senator Paul. Can you provide the information to my office 
for the health reports and the studies that went into why we 
need to change the Respirable Dust Rule?
    Mr. Main. I can provide you the reports that we relied on 
in our rulemaking. And, just as a follow-up, I think if you 
asked any coal miner in Kentucky, West Virginia, The 
Appalachia, do you know somebody that died of black lung, the 
answer's going to be yes.
    Senator Paul. I didn't hear your first part. You said you 
can or cannot provide those reports?
    Mr. Main. Yes, if you'll give us the request, we'll provide 
you the reports.
    Senator Paul. This is going into effect May 2, and we'd 
really like to see the studies as to how you're determining the 
cost and how you're determining whether or not this is a health 
problem that needs a change in the Respirable Dust Rule.
    Mr. Main. Yes, we will provide you the reports we relied on 
in making--and I just want to note that based on MIOSHA's 
findings miners are still getting the disease; younger miners 
are getting the disease. This is a disease that has plagued the 
industry since we've mined coal.
    I think that the Chairman's father is a black lung victim 
as well.
    Senator Paul. It's been greatly on decline over the last 30 
years.
    Mr. Main. We hope to get rid of this disease. That's our 
goal.
    Senator Paul. We've been succeeding with the current rule 
in greatly declining black lung disease over the last 30 years.
    Mr. Main. There has been a decline. There's absolutely no 
question about it, but miners are still getting the disease, 
but we'll be happy to provide you with the reports that we 
relied on.
    Senator Paul. Thank you.
    The Chairman. Your time is a great example to set.
    Senator Blumenthal.

                    Statement of Senator Blumenthal

    Senator Blumenthal. Thank you, Mr. Chairman, and thank you 
for having this hearing which focuses on one of the Nation's 
major workplace safety tragedies. And, I must say, Connecticut 
has no coal mines, but I'm here because the principles and 
values and the mistakes made can inform all of us. Every family 
has a right to expect a worker who leaves in the morning come 
back at the end of the day, and anytime in the workplace that 
there's a tragedy of the kind that happened here, it reflects 
on our Nation as a whole.
    I want to thank you, and the Mine Safety Health 
Administration for its self-reflection over the past year to 
increase the effectiveness of current safety requirements, and, 
Mr. Lewis, the work that you've done in looking into possible 
improvements.
    I want to say that my colleagues, Senator Manchin and 
Senator Rockefeller have been extraordinarily responsible and 
responsive to the particular issues raised in this tragedy.
    And, I want to ask: After any worker safety tragedy of this 
kind, and any mining accident, miners' families continue to 
suffer, as they have here--29 families wanting to know what 
happened in the Upper Big Branch tragedy.
    Has the Mine Safety and Health Administration been keeping 
those families informed about the ongoing investigations by 
both your department and by other branches of the government, 
such as the Department of Justice?
    Mr. Main. I can speak to the Mine Safety and Health 
Administration. I can tell you that we have had a family 
liaison that works with them. We've had, I think, seven family-
briefing meetings on our investigative findings on what was 
releasable, what we could share with them since the tragedy.
    But, I would also like to share with you: We had 71 other 
miners that died last year. We have mines in virtually every 
State in the United States, and one of the things that probably 
gets lost in the shuffle here is that, if you look at the last 
two decades, most of the mining deaths have been at non-coal 
mines. I'm talking about metal mines, sand and gravel mines; 
and when we've taken a look at the data, we find some of the 
largest number of deaths at surface facilities and some of the 
smaller facilities that occur.
    And, in each of these deaths, we have assigned a family 
liaison to work with the families. It is something that we 
believe in as an agency; I personally believe in. I work with 
the grieving families all my life. But that's something that we 
do.
    Senator Blumenthal. Do you think that the system of liaison 
and information can be improved; and what, specifically would 
you do to improve it?
    Mr. Main. Yes, I think we can. I grew up as a farm kid; 
went to work in the mines, and I believed in the find it and 
fix it mentality that has taken me through all my life. 
Families pay the biggest price for all of these, whether it's a 
single accident that happened in Iowa or the tragedy in West 
Virginia. And, whatever we can do to both make their life 
easier and provide them what we can to help ease their pain and 
to bring closure, we owe it to them.
    Yes, we're always looking to see what we can do better. I 
will also say this, that Senator Manchin mentioned: We all 
spent a lot of time with the families right after the tragedy 
occurred during the week-long rescue and recovery operation; 
and the pain and grief that you see in the eyes of those 
families is something that I think that all of us that make the 
decisions ought to see, as Senator Manchin has pointed out, 
because you really understand the consequences of failure in 
mine safety in this country.
    Senator Blumenthal. As I mentioned, we don't have any coal 
mines in Connecticut, but we have had similar kinds of 
tragedies, and we've seen families experience the same kind of 
grief in construction accidents, in an energy plant tragedy 
that occurred very recently.
    And, I wonder if you feel that the families would be 
justified, in this instance, if they were dissatisfied with the 
level of information that's been provided.
    Mr. Main. You can never provide enough information to the 
families; and I'm going to start from that equation. If I was 
there as, say the father, the son, the wife, the brother, the 
sister of the miner who lost their life, I would be asking 
every question of everybody to get an answer.
    And, to that extent, I think that's what drives us to try 
to figure out ways that we can accomplish that. Our event on 
June 29 will, as much as we can along those lines, be able to 
answer the questions. They want to know what went wrong; why 
did this happen, and we owe them that answer.
    Senator Blumenthal. Thank you. My time has expired, but I 
may have some more questions if there is follow up.
    Thank you.
    The Chairman. We'll get a second round here of 5 minutes 
each.
    I'm glad you brought this up, Secretary Main, about the 
number of fatalities. I think we have to be constantly reminded 
of what a dangerous occupation this is. From 1990 through 2010, 
if I'm not mistaken, that's 20 years, not including black lung 
deaths, 838 miners perished in metal and nonmetal mines 
compared to 820 miners who died at coal mines. So, 1,638 miners 
died in 20 years. That's really kind of shocking when you think 
about it.
    Now, the injury rate--I don't have the data on that, but I 
can get that, but that's also extremely high.
    My point is, to back up what you just said, but some people 
say, well, there ought to be different rules for different 
types of mines. Surface mine's different than deep coal mining; 
krona mining is probably different than coal mining. And while 
I think it probably does make some sense to have different 
rules for different types of mines, there are some rules that, 
I think, would cover all mines.
    For example, it doesn't really make sense to have one set 
of rules for a whistleblower at an underground coal mine and 
another for a whistleblower at a silver mine or gold mine or 
krona mine.
    I just wanted to make that point, that I think there are 
some standard rules that can apply to all, but there may be 
some in which we would have to look at different rules for 
different types of mines.
    Mr. Main, I wanted to get to this issue of backlog. Because 
of what you're going after to reduce this backlog, are you 
saying that somehow that is preventing or slowing down your 
ability to conduct the kind of investigations and to issue the 
kinds of citations that might be needed on a day-by-day basis 
right now because you're working so much on the backlog?
    Mr. Main. There is no question that the backlog is taking 
up a certain amount of resources, in MSHA, in the Solicitor of 
Labor's Office; and there is a belief in my mind that there 
is--some operators, I think, take the easy route of, if you 
issue me a citation, I'm going to contest it.
    If you look at the history, they can expect about 2 years 
before it ever gets to resolution.
    The Chairman. If it's contested.
    Mr. Main. If it's contested. And, I think that does have 
some impact on how some of the miners view the penalties. And 
if mines that operate a short time decide by the time they ever 
get to me, I'm going to be out of here--do I believe there's 
mines that operate like that? Yes, I do. Do I believe that some 
mines have calculated the cost of fines, the cost of doing 
business, by keeping their money in their own pocket for 2, 3, 
4 years? Yes, I think there's a lot of things that adversely 
affect the overall enforcement system.
    I can tell you this: that our backlog dollars that Congress 
so gratefully gave us to help fix this, runs out in July.
    The Chairman. Did Congress not provide additional funding 
to reduce that backlog?
    Mr. Main. Congress, yes, through July of this year. And, 
the Senate Appropriations, on its bill, had added money to 
that. But, as we now stand, funding ends in July.
    The Chairman. Do we have information--not in this 
committee, but the Appropriations Committee on how much we 
would need to continue to reduce that backlog in a timely 
manner?
    Mr. Main. Yes. I think we have a request in fiscal year 
2012 that outlines the moneys needed; and I think the gap money 
is somewhere around $3 million to get from July to October 1.
    The Chairman. OK. Thank you.
    Mr. Main. And I think around $23 million was in the Omnibus 
bill, but there's a specific amount in the fiscal year 2012 
appropriations.
    The Chairman. That joint plan was to reduce it in 3\1/2\ 
years. If you continue to get the additional funding, is that 
still----
    Mr. Main. I think as we move forward we look at where 
history's at, I will tell you, when we started this discussion, 
it was in February of--January, February 2010. The moneys was 
appropriated in July, and after Upper Big Branch, as everybody 
knows, my agency started to increase the enforcement intensity 
in the mining industry.
    You had some mine operators that contested the actions that 
we have taken. I think we've seen an incline since July 5th as 
far as more contested cases. And, I think we've tackled around 
1,900 cases as a result of the backlog activity that we've 
taken.
    The hope is, as we move forward with applying the tools, 
that we are having the industry take greater ownership, looking 
forward to, hopefully, some legislative opportunities here, 
that we think that there's going to be a changed attitude in 
the mining industry that has us citing less violations as we go 
forward.
    But we're not there quite yet.
    The Chairman. Thank you, Secretary Main.
    Senator Enzi.
    Senator Enzi. Thank you again, Mr. Chairman.
    I want to congratulate you on completing 100 percent of 
MSHA's required inspections in 2010 and noted that that marked 
the third year that MSHA has achieved that--2008, 2009, but I 
noted in your March 25, 2010 Office of Accountability Report to 
Chairman Harkin at the subcommittee that 4 of 19 field offices 
audited failed to complete section 103(i) periodic spot 
inspections required by statute for mines that liberate high 
amounts of methane gas in 2009.
    How was MSHA able to achieve 100 percent of mandated 
inspections in 2009 if these required spot inspections weren't 
done?
    Mr. Main. Starting with the spot inspections first, MSHA 
does about 6,000 spot inspections of mines based on the 103(i) 
spot inspection program, and from what I understand there were 
four locations--or four different spot inspections--missed out 
of that 4,000.
    The other thing that I understand is the cause of the find 
and fix actions that we take, that that message was reinforced 
throughout the industry, or throughout the agency, and we have 
been completing the inspections.
    When we claim 100 percent inspection, it's based on a 
general inspection of a mine; and that's not to say that 
everything--we don't live in a perfect world. We wished that we 
did, but with all the pieces that we inspect, to get 100 
percent, there's some quality improvements we could always 
make.
    Senator Enzi. Now, mines with high methane liberation have 
a higher explosion risk, and that's why they're targeted for 
these 103(i) inspections. Do you think it's more important for 
an MSHA inspector to inspect every inch of a three-employee 
gravel pit that has had no loss time accidents for a decade and 
never had a methane explosion, than to complete spot 
inspections for mines with high risk of methane explosions?
    Mr. Main. I think you have to put it in context. I've done 
mine inspections all my life. I've been in gravel pits; I've 
been in coal mines; I've been in silver mines. And, there's two 
things that I've learned about this Mine Act--I went to work 
before there ever was a Mine Act in 1967. I remember the first 
day a Federal inspector ever arrived where I was. It was one of 
the best days of my life. If you look at how effective the Mine 
Act has been; if you go back to 1978, whenever the metal/
nonmetal--1966 metal/nonmetal Mine Act was joined to the 1969 
Mine Act, we had about 200 plus, about 280 deaths that year.
    We have been able to achieve such great reductions, and 
particularly on the metal/nonmetal side as a result of the 
implementation of that act, the 2006 Miner Act, the adding on 
of inspectors to the point that the last 2 years a metal/
nonmetal has been two of the most historically low years in the 
history of mine safety.
    So, pulling inspectors off of those, you risk a reeling 
back of the successes that you've made. And, I think that 
Congress and this agency, the mining industry, needs to have 
the recognition of how all those pieces of legislation, 
regulations came together to provide us with the safest 2 years 
in the history of mining.
    Senator Enzi. Now, was UBB scheduled for 103(i) spot 
inspection; and were those completed?
    Mr. Main. They were scheduled for those. As far as, were 
they all completed, that's something that will be assessed. 
Actually, there was no audits that involved Upper Big Branch in 
the ones that we have been talking about here this morning.
    I want to put those audits in perspective: MSHA's been 
auditing agency performance since probably its creation in May 
1969, it is a function that the agency has to do--to go out and 
look at how its performance is to carry out the Mine Act.
    If we don't find problems, somebody's going to be worried 
that we're not looking in the right places, so we try to target 
to find the right areas where we had concern.
    And, it's the same thing with the IG audits that are done. 
Those are targeted in particular areas to help us be a better 
agency.
    We're hopeful that all the audits that we've been talking 
about were helpful to make improvements to the agency going 
forward.
    Senator Enzi. How many times has MSHA inspected large 
underground mines and issued zero significant and substantial 
citations; or is it even possible?
    Mr. Main. Yes. We have some mines in this country that are 
very large. I know one in northern West Virginia, up in the 
Senator's area, the McElroy Mine. I think it's probably the 
largest underground mine that we have in this country, two 
sections--or two long mines; employs close to 1,000 miners; and 
they have a vast area. And, we take that into consideration 
when we look at how mines are.
    We have some mines that are very small, and we take the 
smallest gravel pit. But, yes, there are mines that have 
inspections that do not receive S&S violations, both from the 
coal side and on the non-coal side.
    One of the other things, too is that we look at what we do 
and how we have applied the law. We issue the 14 potential 
patterns of violation notices to those non-coal mines; one of 
them was a surface cement plant in the southeast. And, this was 
something that may surprise folks, but it showed up on the list 
as having problems that we needed to take exceptional action 
in. That mine has successfully lowered its S&S rate; is now off 
the potential pattern of violation and sent us a letter 
basically thanking us for showing them how to have a better 
safety program; and they fully intend to do a better job from 
here out.
    My safety covers more than coal; and we try to use our 
tools to target the areas where the problems are where we need 
them the most.
    Senator Enzi. I have a number of other questions, but I'll 
submit them since my time has expired.
    The Chairman. Thanks, Senator Enzi.
    Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman.
    As I mentioned, just for the record, we have no underground 
coal mines in Connecticut, but we do find that whistleblowers 
are frequently a source of extraordinarily important 
information in preventing, as well as investigating and 
prosecuting these kinds of tragedies.
    I know that at the field hearing in Beckley, one of the 
problems raised by the miners was their fear of retaliation or 
retribution.
    I wonder what the Mine Safety and Health Administration has 
done to empower miners to come forward and report unsafe 
conditions before they cause this kind of tragedy?
    Mr. Main. Through how we train our inspectors to be out 
talking to miners to let them know their rights; we have our 
training department--we, being MSHA--do updated information to 
get out to the miners; we try to send messages, is what I say, 
publically, as the head of MSHA, what I expect, and what I 
expected is that mine operators listen to miners, and that 
miners have the right to speak out; and the way that we respond 
to discrimination complaints, where miners do speak out.
    We are going after the largest number of temporary 
restraining orders to get--or not a TR--it's an order that puts 
a miner back to work while their case is being processed; and 
we let the mining industry know about our actions to do that. 
But, there's more that we need to do to make the miners feel 
comfortable with all that we do, to give them more legal 
powers.
    Senator Blumenthal. And, what would you do? And, I guess 
that's a question also for Mr. Lewis, because your report does 
not specifically make recommendations with respect to 
whistleblower protection, but I do feel it is important for 
both of you to focus on.
    If I could ask that question of you, Mr. Main, and then ask 
Mr. Lewis to answer it as well.
    Mr. Main. I would say simply that there is a lot of 
discussion about this and the development of legislation last 
year for a new mining act. There is a lot of good provisions in 
that, we should take a look at, that aims at providing miners 
with a greater voice, a greater amount of protection, and more 
penalties for those that take action against the miners; and we 
support moving forward with those.
    Senator Blumenthal. Mr. Lewis.
    Mr. Lewis. That's something that we have not specifically 
looked at, at this point in MSHA, but we could certainly do so. 
We have looked at their hotline process for receiving 
complaints and made recommendations over that in the past and 
how it's operated.
    Senator Blumenthal. Let me make a suggestion, Mr. Lewis, 
that you do look at it very closely, because in forestalling or 
improving the kinds of conditions that the miners know best--
they're on the scene; they're in the mines, just as workers at 
a construction site or at an energy plant can see and feel 
danger before it occurs, they need to be empowered, and 
absolutely protected against retaliation, not just that 
objectively it won't occur, but, in fact, in their perception 
that there is no intimidation.
    I know that you share my feeling that they should be 
protected, and I know you've made that clear, Mr. Main, in what 
you've said.
    To the extent both of you can give us some more specific 
recommendations in that regard, I would certainly appreciate 
it.
    Let me ask just one last question, if I may, Mr. Chairman, 
in the minute I have.
    Mr. Lewis, do you feel that there has been adequate follow 
up on the recommendations you've made?
    Mr. Lewis. On all of the recommendations that the agency 
has certainly been responsive and receptive. We know there's 
action on all of them. There are some things remaining to be 
done but I know there is work underway on every recommendation 
we've made. We've had a good working relationship with MSHA 
over the last 5 years.
    Senator Blumenthal. And, if you could pick an area where 
there has been either inadequate response, or delay, what would 
it be?
    Mr. Lewis. I wouldn't characterize it as inadequate 
response or delay. There are some things that are not going to 
be done overnight, as I mentioned earlier. One of our 
significant concerns was the testing labs, and we know that 
there is a lot that they are looking at there, but we are 
anxious for them to re-evaluate that standard.
    But, we know they're going to have to do some things, and 
to get themselves in a position to be able to do that more 
timely.
    Senator Blumenthal. Mr. Main.
    Mr. Main. Yes. If I could make a follow up on it. The lab 
is one thing that, like I said, that was put in there in about 
1970. It hasn't changed much since 1970. We agree it needed 
overhaul. We've actually made certain changes, and we have some 
requests in fiscal year 2012 to help fix that.
    A couple other issues: One of them is as to the 
recommendation that was made by the Inspector General that we 
have a change in legislation, how we issue 103(k) orders 
because of a language issue that was brought up after the 
Crandall Canyon disaster, finding that MSHA does not have the 
legal authority to issue a verbal 103(k) over the phone. That's 
a real problem. And, that's a recommendation that's in the 
legislative package.
    And, there's recommendations made, as well, that we 
eliminate the final orders in the pattern of violations 
process, and our proposed rule covers that.
    I think that yes, we have agreed with all the 
recommendations since I've been here that we have received, and 
we're looking, honestly, to fix those, and haven't been as yet, 
completed.
    Senator Blumenthal. Thank you very much, and thank you for 
your constructive work on this issue.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Blumenthal.
    Senator Manchin.
    Senator Manchin. Thank you, Mr. Chairman.
    In the State of West Virginia we have our own inspection, 
as you know, our own health safety and training office. And, 
what I hear a lot from both the miners themselves and operators 
is that there are two inspections going on; and one might 
contradict the other; and they get very confused. I've even had 
miners tell me that. They've said, ``We're told to do one thing 
one way and then either the State or the Federal follows up and 
they're looking for something different.'' And, it's so 
confusing that it creates maybe an unsafe condition when we're 
both intending to create a safer condition.
    What I would ask--I found a lack of sharing information. I 
know that, from the Federal and our State in West Virginia--and 
I'm sure other States might have the same concern--they are not 
sharing what they should be. We don't know if they are 
coordinating inspections. If we're required to do four 
inspections a year, and the feds are required; so you have the 
State doing four and the feds doing four, are they coordinating 
those so they will be at intervals and sharing that information 
so it would be much more constructive than detrimental to the 
operation, and, to really, the safety?
    Mr. Main. I think the answer to that--this is going to be 
an answer broader than the State of West Virginia----
    Senator Manchin. I know. I know.
    Mr. Main. We have about 20 coal States.
    Senator Manchin. Do most States have their own--I know Utah 
did not. Does Utah now have their own mine department?
    Mr. Main. Yes. There is probably about six or seven States 
that do, but I have been working to organize all the State 
agencies. As a matter of fact we're set to meet in the month of 
May to seal a memorandum of understanding. It is an 
organization that represents State agencies, and we pull in all 
the State mine safety agencies.
    In that meeting we're pulling together all of our district 
managers on the coal sites throughout the United States after 
they will be hooked up with all the State agency heads. This is 
something we've already accomplished one time. And it is to do 
exactly what you're talking about. We want to bring to bear 
better coordination between State and Federal agencies and the 
work that they do and the work that we do, and we're hopeful, 
to, as a result of all of that, increase that communication 
coordination.
    Senator Manchin. Let me just give you this, what I'm 
finding out. There is such little resource out there with the 
people that have the expertise, and we're both in the same pool 
of workforce, trying to--who's going to pay more to get that 
inspector to work for Federal or for State.
    Do you believe that it's time to have truly one agency 
doing training and one agency doing inspections? Everyone's 
trying to do everything and I'm sometimes finding out we're not 
doing either one as well as we could or should.
    Mr. Main. I have been a proponent of the continuation of 
State agencies. I think they serve as an enforcement agency. I 
think they serve a valuable purpose in protecting the lives of 
miners. I think that we can improve over all, by having greater 
coordination between the State agencies and MSHA and accomplish 
a lot better goal of consistency of how we manage our resources 
at the mine site.
    Senator Manchin. Who has primacy? If I have State law, and 
I've got our inspectors--and we're going out there because we 
live there. That's us. We're right there every day. Do we have 
primacy over that, or basically does the Federal have primacy?
    Mr. Main. If there is a conflict there is a Federal primacy 
that is applied, but generally the way that a lot of the State 
laws are constructed, they are constructed in the Mine Act, 
which was after a lot of the State agencies took place----
    Senator Manchin. Has MSHA ever considered basically taking 
the lead role on, basically, teaching the safety end of it, and 
maybe the States taking a lead on the inspection end of it to 
make sure that we're enforcing it?
    Mr. Main. Let me just say this as a Federal employee who 
works for the Federal Government, I do not see it, probably as 
in my best interest to step into the State authority issues and 
let the States make their own determinations. Only thing I can 
say is that throughout my working career I have seen the value 
of both agencies, in these----
    Senator Manchin. The only thing I would ask for, if you 
would, give me a breakdown of how you're coordinating, because 
I know, before, we weren't sharing. We didn't know what to look 
for. The people would come to me as Governor, and they'd say, 
we're going in and we're looking at this and we're seeing it. 
You all might have gone in a week earlier, or maybe a day 
earlier and looked at something different.
    We could help each other a lot more if we were sharing 
that, and if you had a serious violation, whether it be 
ventilation or rock dust or something, and we're going to come 
in and in intervals quicker than your interval; we could be 
looking for what you've been already identifying.
    That's what I really saw, Joe, then we get the best bang 
for our buck.
    Mr. Main. I truly agree with you, and that's the aim of 
working with this State organization where we can do it, not 
just in West Virginia, but throughout the country to help 
improve that--I agree with that.
    Senator Manchin. Thank you Mr. Chairman.
    The Chairman. I think that concludes our testimony this 
morning. I thank you both very, very much, and thank you, Mr. 
Main, for your great leadership down there. I can assure you 
that we're going to have to fight very hard on the 
Appropriations end to make sure that we can continue to get the 
extra additional money to reduce the backlog. I'm afraid that 
if that's not done, one or the other is going to suffer--either 
we won't reduce the backlog in the 3 years that we've set or we 
won't be able to do the onsite inspections and things that we 
need right now.
    But I think what Senator Manchin just mentioned is 
something I think we're going to have to look at. I can discuss 
that with Senator Enzi as we develop this legislation--the 
coordination between State and Federal, and who's responsible 
for what. I don't know a lot about that, and I've got to find 
out about that, and I'm just wondering if there is something 
that needs to be put in legislation to better mediate.
    Senator Manchin. Mr. Chairman, what has happened over the--
and I think that Senator Enzi will say the same, because coming 
from a large mining State, is the confusion. Everybody--let's 
say that the miners themselves, and the operator really want to 
do it, but they get confused, or they have been confused in 
past, of, OK, who has the primacy, and if we're doing this by 
what the State's telling us. And if the coordination. And you 
might have it required by law. I think we're four inspections a 
year.
    Mr. Main, what's your requirement? How many do you require?
    Mr. Main. Four.
    Senator Manchin. Four.
    Mr. Main. And, I don't round.
    Senator Manchin. That's a total of eight. Let's say if we 
both come the same month, four times, that means 8 months might 
get done with nothing.
    If we knew we were coordinating, and we were rotating this, 
we could almost have a much more--and sharing the information 
on what to look for. That's what I saw. That's way before you 
all come in and way before all this happened, I'd been getting 
those complaints clear back in 2005 and 2006.
    The Chairman. Mr. Main, do you have one thing to----
    Mr. Main. I would say this: I think that when we're talking 
about the Appalachian coal fields and realize what we have, I 
think we have to be very careful about any illumination of 
enforcement activities.
    I totally agree with the Senators, that we do need to do 
better coordination.
    Senator Manchin. Let me make it very clear, I do not, under 
any circumstances, think that we should eliminate it. We'll 
make sure it's effective and efficient; and if we're both doing 
it, let's do it so we can improve it.
    Mr. Main. And we agree with that, and that's the reason 
I've been working to get the State agencies together. And it's 
not only on underground coal mines, it's like we inspect 
impoundments all over the country. We have an issue with our 
surface impoundments, and how best we can do that.
    We have State agencies that do that. We have some 
obligations that--there are a number of things that would be 
helpful for us to coordinate.
    The Chairman. Thank you all very much.
    The record will remain open for 10 days for further 
statements, questions submitted by Senators; and with that, 
the----
    Senator Manchin. Mr. Chairman, if I may say, on behalf of 
myself and Senator Rockefeller, we want to thank you for the 
courtesy you've extended to us.
    The Chairman. Absolutely.
    Senator Manchin. We're not a member of your committee. 
You've allowed us to come in and sit and participate.
    The Chairman. Senator Enzi.
    Senator Manchin. Senator Enzi, thank you so much, my 
friend. I appreciate it.
    Senator Enzi. My pleasure.
    Senator Manchin. Thank you.
    The Chairman. Thank you all very much. The committee will 
stand adjourned.

    [Whereupon, at 11:38 a.m., the hearing was adjourned.]

                                   

      
