[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
PROTECTING AMERICA'S WORKERS:
AN ENFORCEMENT UPDATE FROM THE
MINE SAFETY AND HEALTH ADMINISTRATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 23, 2015
__________
Serial No. 114-11
__________
Printed for the use of the Committee on Education and the Workforce
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Ranking Member
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Joe Courtney, Connecticut
Brett Guthrie, Kentucky Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada Northern Mariana Islands
Luke Messer, Indiana Frederica S. Wilson, Florida
Bradley Byrne, Alabama Suzanne Bonamici, Oregon
David Brat, Virginia Mark Pocan, Wisconsin
Buddy Carter, Georgia Mark Takano, California
Michael D. Bishop, Michigan Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma Alma S. Adams, North Carolina
Carlos Curbelo, Florida Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia
Juliane Sullivan, Staff Director
Denise Forte, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
Duncan Hunter, California Frederica S. Wilson, Florida,
Glenn Thompson, Pennsylvania Ranking Member
Todd Rokita, Indiana Mark Pocan, Wisconsin
Dave Brat, Virginia Katherine M. Clark, Massachusetts
Michael D. Bishop, Michigan Alma S. Adams, North Carolina
Steve Russell, Oklahoma Mark DeSaulnier, California
Elise Stefanik, New York Marcia L. Fudge, Ohio
C O N T E N T S
----------
Page
Hearing held on April 23, 2015................................... 1
Statement of Members:
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Wilson, Hon. Frederica S., Ranking Member, Subcommittee on
Workforce Protections...................................... 5
Prepared statement of.................................... 7
Statement of Witnesses:
Main, Hon. Joseph A., Assistant Secretary of Labor for Mine
Safety and Health, U.S. Department of Labor, Arlington, VA. 10
Prepared statement of.................................... 13
Additional Submissions:
Assistant Secretary Main:....................................
Responses to questions submitted for the record.......... 52
Rokita, Hon. Todd, a Representative in Congress from the
State of Indiana:.......................................... 44
Stakeholder Partnership Initiative....................... 45
Scott, Hon. Robert C. ``Bobby'', Ranking Member, Committee on
Education and the Workforce:............................... 50
Questions submitted for the record....................... 51
PROTECTING AMERICA'S WORKERS: AN
ENFORCEMENT UPDATE FROM THE MINE
SAFETY AND HEALTH ADMINISTRATION
----------
Thursday, April 23, 2015
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 9:03 a.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
(Chairman of the subcommittee) presiding.
Present: Representatives Walberg, Rokita, Brat, Bishop,
Russell, Stefanik, Wilson, Pocan, Adams, and DeSaulnier.
Also present: Representatives Kline, Scott, and Courtney.
Staff present: Janelle Belland, Coalitions and Members
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Callie Harman, Staff Assistant; Christie Herman, Professional
Staff Member; Nancy Locke, Chief Clerk; John Martin,
Professional Staff Member; Zachary McHenry, Legislative
Assistant; Brian Newell, Communications Director; Krisann
Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk;
Juliane Sullivan, Staff Director; Loren Sweatt, Senior Policy
Advisor; Alexa Turner, Legislative Assistant; Joseph Wheeler,
Professional Staff Member; Tylease Alli, Minority Clerk/Intern
and Fellow Coordinator; Austin Barbera, Minority Staff
Assistant; Melissa Greenberg, Minority Labor Policy Associate;
Carolyn Hughes, Minority Senior Labor Policy Advisor; Brian
Kennedy, Minority General Counsel; Richard Miller, Minority
Senior Labor Policy Advisor; and Amy Peake, Minority Labor
Policy Advisor.
Chairman Walberg. A quorum being present, the subcommittee
will come to order.
Good morning, Assistant Secretary Main. We are very pleased
to have you with us and appreciate your attention to this
request; and it has been a little while since we have had a
chance to talk, and it is good to--well, I guess I should say
it has been a little while since we have had a chance to talk
in this forum, but I appreciated the opportunity that we had
yesterday, as well.
You have an important job to do, and we appreciate the time
you have taken to participate in this oversight hearing.
Today's hearing is timely for two important reasons. First,
in just a few days our nation will observe Workers' Memorial
Day, a time to remember the men and women who have been injured
or killed at work. It is also a time to reaffirm our commitment
to tough, responsible policies that will help protect the
health and safety of America's workers in the workplace of the
twenty-first century.
And secondly, just a few weeks ago the people of Montcoal,
West Virginia and neighbors in surrounding communities observed
the five-year anniversary of the Upper Big Branch mining
disaster. There is no doubt that the families of the 29 miners
who died live each and every day with the painful memory of
this tragic event. Our thoughts and our prayers are with these
families and every family that has lost a loved one while on
the job.
Upper Big Branch is a terrible reminder that bad actors
will look for ways to cut corners and jeopardize the well-being
of their workers despite a moral and legal obligation to make
safety the number one priority. I am pleased that those who had
a hand in the Upper Big Branch tragedy are being held
responsible. It is taking some time, but justice is being
served.
An independent report from the National Institute for
Occupational Safety and Health underscored why bad actors must
be held accountable. The report said, and I quote: ``If the
Mine Safety and Health Administration had engaged in timely
enforcement of the Mine Act and applicable standards and
regulations, it would have lessened the chances of and possibly
could have prevented the Upper Big Branch explosion.''
That is why time and again this Committee has urged MSHA to
do better and use every tool it has to keep miners safe. Under
your leadership, Assistant Secretary Main, the agency has
implemented a number of changes to its regulatory and
enforcement practices.
The purpose of today's hearing is to examine these efforts
and determine whether they serve the best interests of
America's miners. We have a lot of ground to cover in a short
period of time, including controversial changes to pattern of
violations regulations, revised standards governing exposure to
respirable coal dust, changes to the agency's citations and
penalty policies, and new rules on the use of proximity
detectors on continuous mining machines.
Clearly you have been busy, Secretary Main. As you know, we
haven't agreed on every issue, and when we haven't, we have
expressed our concerns and encouraged the agency to move in a
different direction. However, when the agency does take
responsible steps to improve health and safety enforcement, you
have and will continue to have our full support.
Both your agency and this Committee share the same goal: We
want to ensure strong enforcement policies that are in place so
that every miner returns home to his or her loved ones at the
end of their shift.
I look forward to a frank and robust discussion today and
continuing our work together to help reach that shared goal.
Again, I would like to thank you, Assistant Secretary Main,
for joining us this morning.
And I now recognize Ranking Member Wilson for her opening
remarks.
[The statement of Chairman Walberg follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Wilson. Thank you. Mr. Chairman, I want to thank you
for holding this hearing today, this very important hearing.
Assistant Secretary Main, I thank you so much for
testifying here today.
And to Deputy Assistant Secretary, Patricia Silvey, thank
you for being with us in the audience.
This month marks the five-year anniversary of the disaster
at the Upper Big Branch Mine, where 29 miners were killed in a
preventable coal dust explosion.
To the friends and families of these 29 miners, please know
that we continue to remember your loss and are committed to
taking steps to prevent tragedies like this in the future.
It has been three years since the Committee's last hearing
on mine safety. At that hearing, we heard testimony on five
investigation reports that showed the mine operator at Upper
Big Branch repeatedly violated mandatory safety standards.
Number one, they failed to maintain adequate ventilation,
which allowed flammable methane to build up. Number two, they
failed to adequately rock dust the mine, which allowed
explosive coal dust to accumulate. Number three, they also
failed to properly maintain water sprays, which would have
prevented ignition.
We also heard how the mine operator concealed its
noncompliance. They kept two sets of mine examination books:
one for management, and a sanitized version for MSHA
inspectors. Mine management also routinely warned foremen when
mine safety inspectors were on the property, giving foremen the
opportunity to conceal unsafe conditions from inspectors.
Although mine operators are ultimately responsible for
safety of miners, MSHA plays a vital role in holding mine
operators accountable.
We know that in the 18 months prior to the Upper Big Branch
explosion, MSHA issued 692 citations and orders to this mine
operator. During 2009 MSHA issued 53 withdrawal orders for
unsafe conditions--more than any other mine in the nation. But
even this was not enough.
Since Upper Big Branch, MSHA has enacted many reforms. MSHA
is using impact inspections to target high-risk mines. MSHA has
issued final regulations for its most powerful administrative
enforcement tool, the pattern of violations sanction, which is
intended to bring serial violators into greater compliance.
MSHA has issued a final rule increasing the required amount
of rock dust to be deposited in underground mines, which will
decrease the likelihood of coal dust explosion. MSHA has also
issued a rule requiring continuous mining machines have
proximity detection devices designed to prevent crushing or
pinning miners.
The tragedy at Upper Big Branch also brought to light
weaknesses in the Mine Act. That is why yesterday I joined with
Ranking Member Bobby Scott to reintroduce the Robert C. Byrd
Mine Safety Protection Act. This bill gives MSHA the tools it
needs to provide greater protections for mine workers.
An important provision of this bill provides MSHA with
greater subpoena authority. This means that MSHA would have the
authority to compel the production of documents and witnesses
during an inspection and investigation. Unlike other laws, the
1977 Mine Act gave MSHA limited subpoena authority, forcing
MSHA to ask the few states that have subpoena authority for
their assistance.
By contrast, Congress provided expansive subpoena authority
under the OSHA to better protect worker safety. Similarly,
Congress provided subpoena authority to the Labor Department
under the Fair Labor Standards Act to ensure workers get the
wages they are due. Congress has even provided subpoena
authority to the Agriculture Department under crop promotion
laws, such as the Watermelon Research and Promotion Act; the
Pecan Promotion and Research Act; and the Popcorn Promotion,
Research, and Consumer Information Act.
I would ask that we join in a bipartisan effort to enact
legislation to provide MSHA with expanded subpoena authority.
Although it is only a piece of the Byrd bill, I hope we can
reach a compromise on this issue.
The Mine Act states that the first priority of the industry
must be the health and safety of its most precious resource:
the miner. By giving MSHA this investigative tool, we can
advance the safety of the miners. By enacting this provision,
we also respect requests from the families of deceased miners
who have asked for our help in strengthening the law.
Mr. Main, I thank you for all of your dedicated and sincere
service towards protecting workers. We are the Workforce
Protections Subcommittee, and I look forward to your testimony.
I yield back the balance of my time.
[The statement of Ms. Wilson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. I thank the gentlelady.
Pursuant to committee rule 7(c), all subcommittee members
will be permitted to submit written statements to be included
in the permanent hearing record. And without objection, the
hearing record will be open for 14 days to allow statements,
questions for the record, and other extraneous material
referenced during the hearing to be submitted in the official
hearing record.
It is now my pleasure to formally introduce today's
witness. The Honorable Joseph A. Main is the Assistant
Secretary of Mine Safety and Health at the U.S. Department of
Labor and has served in this position since 2009.
Mr. Main began working in coal mines in 1967 and quickly
became an advocate for miner safety and health. Mr. Main worked
for the United Mine Workers of America in various positions
from 1974 to 2002 and was head of the UMWA's Occupational
Health and Safety Department for 22 years.
Before he accepted President Obama's nomination, Mr. Main
worked as a mine safety consultant. His recent work focused on
research and analysis on prevention of mine accidents and
disasters; development of training programs and facilities to
prepare miners, rescue teams, and emergency responders for mine
emergencies; and international mine safety issues.
He also has had a successful record in taking the chairman
of this subcommittee into mines and bringing him out alive.
And I thank you for that.
I will now ask our witness to stand and to raise your right
hand. This is the first time you have ever had to do this. It
is a policy that we have now, and so, Secretary Main, if you
would stand?
[Witness sworn.]
Let the record reflect the witness answered in the
affirmative.
You may be seated.
Before I recognize you to provide your testimony, let me
briefly remind you of our lighting system. And you have done
this, you have mentioned to me, 25 times appeared before
Committees and subcommittees. You know the lighting system. It
is a question whether I and my colleagues know the lighting
system as well as we should.
So we will certainly give you your five minutes of time. We
won't hold you to a strict time because we want to hear what
you have to say, but we will have plenty of opportunity for
questions, as well.
And so I now recognize our witness, Assistant Secretary
Main.
TESTIMONY OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY, MINE
SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR, ARLINGTON, VA
Mr. Main. Chairman Walberg, Chairman Kline, thank you very
much for the opportunity to be here, Ranking Members Wilson,
and I believe Courtney was here a few minutes ago. I do
appreciate the opportunity to appear here today to report on
mine safety and health.
We have made progress on many fronts, particularly in the
last five years, following implementation of reforms that began
in 2010. The steps that we have taken along with the industry
are changing, I believe, the culture of safety in a positive
way.
From 2010 through 2014, 46 miners died annually. That is
half of the 96 deaths each year that we were seeing in the
1990s, when employment was roughly the same.
At the same time, industry compliance has improved. In 2014
there were 44 fatalities. Sixteen were at coal mines, which was
the lowest number ever recorded in the coal mining industry; 28
were at metal-nonmetal mines, and that was part of an
increasing trend that began back in October of 2013. These
increases are concerning, especially after years of historic
lows in mining deaths.
But we still face challenges, including reversing the
increases in metal and nonmetal deaths. We are making, I think,
significant strides.
On April 5, 2015 we observed the fifth anniversary of the
Upper Big Branch Mine explosion. Our thoughts and prayers are
with the families of the 29 miners who perished. We want them
and you to know that we are using all of our tools--
enforcement, education and training, and extensive outreach and
assistance to the mining community--to carry out our
responsibilities under the Mine Act
In 2010, MSHA revised its pattern of violations procedures
and began to conduct strategic impact inspections. The troubled
mines receiving impact inspections, or undergoing the POV
process, or both, have significantly improved their compliance.
We have stepped up enforcement in metal-nonmetal mines,
reaching out to the mining community, sharing best practices
with them and asking them to assist as we work to reverse the
trend--the recent trend of mining deaths.
MSHA's other initiatives include the End Black Lung--ACT
NOW campaign and a Rules to Live By program, which is aimed at
preventing the most common types of fatalities.
On schedule, we completed action on about 100 reforms from
reviews of MSHA's actions at the Upper Big Branch Mine. We
built accountability into MSHA's internal process and developed
a direct system to provide better oversight of agency policies.
We are improving assistance to the mining community. In
2014 MSHA combined its Educational Field Services and Small
Mines program to expand MSHA services, and we now hold
quarterly calls with industry trainers.
We use technology to assist operators who want to do the
right thing, and to support our enforcement for operators who
do not, including an online POV tool which allows an operator
to monitor whether a mine is approaching a POV. Last month we
rolled out two more tools that allow operators, MSHA, and
others to track a mine's compliance with other key safety
standards.
We want to ensure that stakeholders understand and are
aware of our initiative. MSHA's leadership and I have
crisscrossed the country to meet with them.
Our outreach has led to initiatives that address
stakeholder concerns. When the industry raised issues about
some metal and nonmetal standards, we were able to clarify
them, which has improved enforcement, mine safety, and
compliance.
We reduced MSHA's backlog of contested violations by about
70 percent from its highest levels in 2010 and revised our pre-
contest conferencing procedures, conferencing over 15,000
violations since 2012, as well.
An essential component of preventing accidents is to allow
miners to exercise their rights to report safety and health
problems. Since 2010, MSHA has filed about 185 discrimination
cases and 157 actions for temporary reinstatement to help
enforce those rights.
MSHA finalized a number of rules critical to mine safety
and health, including the recent respirable coal mine dust rule
aimed at preventing black lung.
MSHA has been conducting extensive outreach and support to
the industry and before each phase of the dust rule goes into
effect. Since phase one went into effect on August 1, 2014
through March 31, 2015 we have seen nearly a 99 percent
compliance with over 41,000 samples collected from mines by
operators at MSHA.
With the mining community, we have made needed improvements
to our mine emergency response capacity and capabilities. MSHA
has taken the lead in development of game-changing technologies
to make mine rescue safer and quicker, and we will equip our
mobile mine sites with them very soon.
The state grants program is being funded at $8.4 million at
the fiscal year 2015 budget level, and the President's request
includes funding for 2016.
With that, Mr. Chairman, just a quick oversight of what we
are doing, what the industry is doing on mine safety, and
appreciate the opportunity to answer any questions you may
have.
Thank you.
[The statement of Mr. Main follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Thank you. Thanks for your testimony.
Now, I will recognize myself for five minutes of
questioning.
MSHA finalized the Pattern of Violation (POV) regulation on
January 23, 2013. Currently, there are two lawsuits pending
regarding the regulation and its application.
In November of 2014, an administrative law judge for the
Federal Mine Safety and Health Review Commission vacated
citations against a mine that MSHA placed in POV status. The
decision states, and I quote: ``Dismissal of the pattern notice
rested on two grounds: the Secretary's process is inconsistent
with procedural due process, and it is also inconsistent with
the expeditious resolution of pattern matters.''
Secretary Main, how do you respond to that statement?
Mr. Main. Well, you know, probably a couple things. One is,
as we all know, this is an issue in litigation and we are
paying close attention to what is going on in the litigation
process. And I need to, you know, probably not delve too much
into this, in terms of the legal issues of this report.
But I think it is important for folks to understand this,
and I think--last year we didn't have any mine that was placed
on a pattern of violation, and I think this is a standard that
should be in place across the country. There is no reason for
any mine, I believe, to be on a pattern of violation if they
follow the rules and use the tools that we have made to their
disposal.
We inspect about 13,000 to 14,000 mines a year, and the
number of mines that we are seeing that are even subject to the
pattern is so small that if you look historically, I think we
had 51 mines when we first started our screening process back
in 2010. In 2014 there was only 12 mines out of around 13,500
that even met the screening. And because of actions they took
and, I think, actions that we have taken as well, they met the
standard.
I think it is achievable. No mine should be on a pattern of
violation.
If you look at the program that has been in place, I think
this has probably been one of the biggest game-changers in
really reining in chronic violators in this country. The 51
mines that we identified back in 2010, the screening tool that
we used is the same one that we used in 2014. There was a
reduction of about 76 percent in the total number of mines that
we identified in that same screening.
And if you look at, as well, mines that have undergone
either the potential pattern of violation in the prior system
or the pattern of violations program currently, you are going
to see a dramatic drop in the violations that we are issuing at
those mines, particularly the serious violations. And one of
the greater benefits is the reduced injuries we are seeing,
cutting the injuries in half after these mines go through the
program.
So I think, you know, we are looking carefully at
litigation that is ongoing and issues that you have raised as
we move forward, but----
Chairman Walberg. Well, let me expand on that more
specifically, regarding the Pattern of Violations regulations.
Stakeholders have expressed concerns that the criteria for
placing a mine in POV status was not contained in the actual
regulation, which means MSHA can change the criteria at any
time.
You have publicly stated, and even this morning, that MSHA
would seek comments prior to changing the criteria. Future
assistant secretaries will not be bound by this statement.
So I guess the question comes, how did MSHA determine it
was not necessary to include the criteria in the regulatory
text?
Mr. Main. So the criteria that we had been using for the
screening process is basically the same criteria that we have
for the screening process now. And that is what I was referring
to when I said the screening process we used in 2014 and the
mines that were identified were--the mines in 2014 were, you
know, identified through the same screening process that we had
used.
And I understand there was, during the comment period on
the rule, an urge by some stakeholders to set a specific
standard, but I can tell you, one of the concerns that I have
in terms of changing--of setting that in stone is because of
the change of the landscape; we may wake up one morning and
say, you know, the criteria that we have established----
Chairman Walberg. But doesn't that leave some type of limbo
of concern?
Mr. Main. Well, I think if you--we are--you know, we are
staying with the same criteria that we have today--or, I mean,
that we had back in 2014.
Chairman Walberg. Well, my time is expired. Appreciate the
response.
Now I recognize Mr. Scott, Ranking Member of the full
Committee, for your five minutes of questioning.
Mr. Scott. Thank you, Mr. Chairman.
And thank you, Mr. Main, for all that you do. Your work
really means life or death for many mine workers, so we
appreciate your work.
As the Ranking Member indicated, we have introduced the
Robert C. Byrd Mine Safety Protection Act of 2015, and we would
appreciate whatever analysis that your office could give about
the provisions in that act. And if you could provide those as
soon as you have had an opportunity to review it, we would
appreciate it.
Mr. Main. Okay.
Mr. Scott. There are a couple of elements to it. One is the
issue of subpoena power.
As I understand it, the--you do not have general subpoena
power for investigations. Is that true? And why would subpoena
power be important?
Mr. Main. So under our statute we have a very, very limited
authority for subpoena power. It requires us to call for--hold
a public hearing to be able to use it. Having said that, beyond
that, we do lack subpoena authority and power.
And if you look back at the mine disaster we were
investigating back in 2010 in West Virginia, we had to rely on
the state of West Virginia to exercise their subpoena power and
authority to seek further questions of witnesses. And, you
know, across the country, you know, there are a number of
states that don't provide that opportunity for us to do that.
So yes, we have a limitation on our ability to use subpoena
authority, which, during normal investigations, we basically
don't have it.
Mr. Scott. And most other investigatory authorities do have
this power?
Mr. Main. There are a number of other agencies, and I think
the ranking member acknowledged some of those today, and I
understand there are a number of other agencies that do have
the authority.
Mr. Scott. Thank you. Now, when you find violations do you
frequently assess fines? Do you have problems collecting the
fines?
Mr. Main. So on the collection of penalties, and I know
this has been a discussion for quite some time, at MSHA we
believe we have one of the better collection rates in the--of
any federal agency. We are collecting about 90 percent of the
penalties that are final orders of the commission. And I think
out of the last five or so years we have met that, with the
exception of one year, which is--I think it is extraordinary.
Having said that, there are still mine operators that make
decisions to accrue violations that place miners at risk and do
not pay their penalties. There is a mining company--I think it
is in Tennessee--for example, that used that model, and at a
point in time they just closed the mine and moved on, racking
up several violations, and I don't think they paid a dime in
penalties. And we refer to those sometimes, as I think the
normal person would, as scofflaws.
So, you know, if you look at someone who may get speeding
tickets and throw them in the back seat and decide to move out
of the state on a given day and, you know, leave the speeding
tickets, there are mine operators that, unfortunately, do that.
Mr. Scott. What effect has the budget had on your ability
to conduct investigations and inspections?
Mr. Main. I am sorry?
Mr. Scott. What effect has the budget cuts had on your
ability to do inspections?
Mr. Main. Well, you know, I think if you go back to the
internal reviews that I spoke about and looked at what impact,
you know, stagnant budgets or budget cuts have, I think there
is a story that is in that internal review about MSHA.
When I arrived at MSHA one of the things that I was
learning about the time I was getting confirmed was that the
agency had lost so much staff that the average experience of
half the inspectors was two years or less. I am sure that was
concerning to everybody. It sure was to me.
And, you know, what had happened was I think just with the
budgeting process over the years leading up to that left MSHA
with a lot of inexperienced folks, and in particular, the mine
that was in question in West Virginia where the explosion
occurred, we had inspectors who had just received their, what
we call their authorized representative cards.
In terms of where we have been over the last few years, we
have been on, you know, somewhat of a similar cycle. But, you
know, from where I sit, I try to do everything that I can to
make sure that we have money to allocate to staff-up the agency
so I never leave another assistant secretary in a spot that I
arrived at. And I think that is something that is important for
everyone to take into consideration that, you know, an agency
like MSHA does have to have the forward-looking budgets because
it takes us about two years to train up our inspectors before
they ever get to their A.R. card. So it is, you know, it is a
concern.
Chairman Walberg. The gentleman's time is expired. I thank
the gentleman.
I now recognize my good friend, the gentleman from
Oklahoma, Mr. Russell.
Mr. Russell. Thank you, Mr. Chairman.
And thank you, sir, for being here today and all of the
service that you have provided in this field for many years.
MSHA has requested $394 million for the fiscal year 2016.
The office of coal enforcement is slated for $175 million of
that, while the metal-nonmetal has almost $94 million, although
the number of nonmetal mines is more than three times the
number of coal mines. Do you believe your budget request will
adequately address safety enforcement issues in the metal-
nonmetal sector?
Mr. Main. That is a good question, and in terms of where we
are at with our budgeting process, you know, we continue to
look at that on a constant basis. We are trying to be more
efficient at MSHA to utilize staff that we have. We actually
have received some help from the coal side to help currently
with the metal-nonmetal inspection process.
And probably going forward into the future with the
changing landscape on the coal side, we probably will be doing
more of that to help supplement our work. We are looking at
training models to help us more efficiently do that. But as
these changes occur in the mining industry, trying to be a more
versatile agency.
The one thing that I have looked at is trying to keep our
authorized representative staffing levels up at MSHA, because
it takes us 18 months to two years to replace someone who loses
that. So part of what we will be doing is looking at how we can
use more efficiencies in having, as I say, on the coal side
some help placed over to metal-nonmetal with training that is
going to go with that to keep our staff levels up.
And I think if you look back at the report that came out of
Upper Big Branch and where there was a loss, and it was both
the coal and the metal-nonmetal side, as far as AR's that had
to be--you know, took a couple years to get ramped back up. You
can appreciate why we are trying to do that kind of a balance.
Mr. Russell. Well, I appreciate that. And with your long
safety experience and observation of many of these issues over
the years, you have highlighted an initiative to prevent
fatalities in mining called Rules to Live By in speeches and
public announcements. Can you describe what those are and how
it is impacting the culture of the mining community?
Mr. Main. Sure. The first program I actually launched when
I arrived at MSHA in 2009 was the End Black Lung--ACT NOW
campaign, and that was to deal with the disease that we are
seeing on the coal side. In general, I believe that we need to
have a focus.
There are a lot of regulations that the industry has to
look at, at MSHA has to look at to see they are in place, and
what I felt that we needed was a focus on the core standards
that were most commonly found following investigations of
mining deaths. Let's make sure that we are looking at the top
end.
So we took a look at mining deaths over a several-year
period--I think the first one was for about nine or 10 years--
and identified the standards that were connected with the most
common causes of mining deaths. And we launched--I think it was
around February--the Rules to Live By.
We brought in the mining associations, the NSSGA, different
state organizations that were--associations we work with, labor
organizations--and walked them through the program. And there
was a change also made with this as we kicked it off is that I
started to develop the training model that--the training we
were giving our inspectors to implement this program, we gave
the same training program to the industry. I think it is still
on our website.
But it was to get a focus of the top standards that was
linked to the most common mining deaths in the country.
We, in about two years later, updated that, adding another
component that dealt with catastrophic-type violations that
were or could lead to mine explosions or disasters, and that
became Rules to Live By II. And then we took another sweep, a
10-year look back--it was about two years ago--of the mining
deaths that were most commonly identified, again, and we came
out with Rules to Live By III, which actually included a lot of
surface standards.
So we recently launched a tool. About two months ago we had
our stakeholders in and created a tool where every mine in the
country can now punch in their I.D. number and see where they
stack up in terms of compliance with those Rules to Live By
standards, and it is a sort of like a green light, red light.
If your text is green you are on the better half of the
industry; if you are on the red you have work to do.
And I know that the NSSGA just held a webinar to help--and
they have been working with us as well as other associations to
really focus attention on it. But the bottom line is, these are
the standards that are most often cited when we have mining
deaths.
Mr. Russell. Well, thank you. And speaking of red lights, I
am out of time. And thank you, sir.
And thank you, Mr. Chairman.
Chairman Walberg. Thank the gentleman.
Now I recognize the Ranking Member, the gentlelady from
Florida.
Ms. Wilson. Thank you, Mr. Chair.
Mr. Main, you have so eloquently described how subpoena
power would help, but that is just a small part of the Robert
C. Byrd Mine Safety Protection Act that was filed--reintroduced
yesterday.
Since it is named after such an important senator--we
called him the miner's senator--Robert C. Byrd, I wonder if you
can reiterate to us today what provisions would be the most
helpful, other than subpoena power, to MSHA in protecting
miners, the workers.
Mr. Main. Well, I think, you know, I have testified before
a number of committees since the Upper Big Branch tragedy and
when the bill was--the previous legislation was being crafted
or had been introduced and noted there was--there are a number
of issues that would be helpful to provide MSHA with greater
tools and improve mine safety.
We talked about the scofflaw issue a bit ago, and that is
something that has been discussed a lot publicly, and it is an
issue that if we had a better tool to deal with that it would
help us rein in mines that decide that they do not want to pay
their penalties quicker.
I think there is a judge in Utah following litigation over
a disaster that happened there in 2008 that probably best
described frustration from that level over the weakness in our
criminal penalty process of holding folks more accountable. And
I think the statement by the judge--and I don't want to say it
because I will probably get it wrong, but I think there was
clear frustration from his voice about the lack of tools that
the judge had in his particular tool bag to deal with the
issues that were of criminal nature that was brought before
him. I think that is something that, you know, does strike a
need.
You know, one of the things that--I think we have, as far
as the reporting system with mine operators in this country, a
pretty good one. I think there was realization that not
everybody fully complies with it. But when it comes to
contractors, I think there is a weakness there.
And this is one where it would be helpful for us to have
more information--more valid information--about, you know,
contractor man hours and injuries at a worksite. And I am going
to give you a bit of a reason why that is probably even more
important.
If you look at the fatalities that we have been talking
about that have occurred over the last 30 or--about the last 18
months, we are up to about 42 mining deaths now. A large number
of those was contractors--I think actually 10 of the deaths.
We had, in 2012, the lowest number of contractors ever to
die on the job at five. In 2013 we had four, which became the
lowest. In 2014--I think it was eight contractor deaths out of
the 28 that occurred.
And, you know, and there is a concern that the recent rise
that we have seen in the mining deaths, if you look at where
most are--you know, what is the top line of those, if you look
at the 38 there is I think 10 supervisors, 10 were contractors,
about 11 or 12 were miners or laborers, and I think there are
about 10 of those that was truck drivers. You are talking about
three-fourths of them.
But the contractor issue that is on the rise there has us
concerned. And I am not sure we know what we need to know about
how many is really out there, you know, and all the information
about their injuries. So that would be another issue.
Ms. Wilson. That would be another issue. Well, thank you so
much.
In your remaining 20 months, what are your top priorities
for improving protections for our miners?
Mr. Main. Well, you know, I think there is--for folks who
know what I have done for the last five and a half years--and
that is really spending quality time out at mines, out with our
stakeholders, having a lot of discussions with them, still
trying to figure out what is it we can do more so that every
miner has a chance to go to work and really go home free of
injury and illness every day. And, you know, the kind of things
that we are doing--I am going to give you some examples of our
stakeholder outreach that I think has been--and we are still
trying to flesh out more.
In 2010 we identified, of course, the top-cited standard in
the metal-nonmetal sector was guarding. We launched a program
piloted with the industry. Actually NSSGA provided mines for us
to go out and do actual video shots of what a guarding should
actually look like or be.
We put it together. We piloted it with a number of the
stakeholders, state associations, put it in place, and since
2010 we have dropped the number of citations that we are
issuing on orders 43 percent on guarding in this country. It is
an effort that we collectively worked together with them.
We have put together a similar effort on fall protection to
reduce the number of violations and injuries and illnesses from
falls, and we have basically adopted, in part, the OSHA
standard, which was something supported by both labor and
industry. We have seen a improvement in number of citations we
are issuing in that direction.
My view is to keep plowing away at fixing things like
proximity detection. Miners getting crushed in underground coal
mines is replacing, really, falls of roof as a leading cause.
We just implemented the standard for continuous miners that
stops this huge piece of machinery in this confined space from
crushing a miner when a miner gets too close.
We have worked with the industry to get us where we are at.
As a matter of fact, I announced that rule at the Gibson Mine
arm-in-arm with Alliance Resources, who was a pioneer to help
us get that rule prepared. I think we had 80-some pieces of
their continuous mining equipment equipped with these proximity
detection devices.
And we are now looking forward to moving on to other pieces
of equipment that are on a mining section like scoops, coal-
haulers, and we are well ahead of the day with that, with the
mining industry having I think somewhere around 160 pieces of
equipment now equipped with that life-saving device.
Chairman Walberg. Time is expired, but we look forward to
hearing more of those successes, as well, and appreciate that.
Ms. Wilson. Thank you.
Chairman Walberg. Thank the gentlelady.
I now recognize the gentleman from Michigan, Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chair.
Thank you very much for your testimony this morning. I
appreciate your comments and your insight.
The coal mining industry has seen substantial change over
the past 10 years. The number of coal mines--working coal
mines--in this country has sharply declined.
I am wondering if you might comment on the impact that has
had on the industry itself, and also reflect a little bit about
how it has impacted MSHA and number of inspectors you have, and
what may be going on inside MSHA to respond to the number of
mine closures in this country.
Mr. Main. It is an issue that has all of our attention
without question at MSHA. And our role in life is to make sure
whatever mines are operating on a daily basis that we are
implementing the Mine Act there in the ways that Congress had
intended for us to do.
If you look at the boom and bust periods in the coal
industry, it is a term that has been stated quite a lot. Pretty
steep this time, there is no question about it.
So as an agency, what we have to be able to do is have a
staffing in place to make sure that we are out conducting the
inspections that we need to carry out the Mine Act. And what
that means in areas where we have lost mines, that we need to
be--we need to understand that and be able to make adjustments
in our inspection applications.
In line with some of the things we talked about this
morning where there has been some flat-line budgets that has--
and it affects every federal agency, not just us--it has made
some--a difference in the funding that we have available, which
is not the same as it was. I think our budget is about $3
million over what it was in 2012, and with inflationary costs.
So the short message is that we are shifting our resources
to areas where they are in need. As of late, coal has been out
providing support to the metal-nonmetal industry, with the
increase of fatalities.
You know, we all look at where the market may go and try to
adjust to that, as others do. But, you know, from the
standpoint, yes, there is reduction on the coal side and we are
trying to make all the adjustments we can to keep up with that.
As a matter of fact, our average inspection hours, which I
look at, has stayed pretty standard from 2012, 2013, 2014, so I
know the amount of times, at least the data we are pulling in,
that we are spending at mines is staying pretty much the same.
Mr. Bishop. Thank you, sir.
Let me switch gears real quick. I have a limited amount of
time.
Very interested and grateful for--appreciate your focus on
safety. One of those areas of interest in this category has to
do with refuge chambers, and I am wondering if you might be
able to share with us exactly what that is and also address the
concerns raised by the National Institute of Occupational
Safety and Health regarding heat generation and purging noxious
air in those refuge chambers.
Mr. Main. So one of the acts of Congress in the passage of
the 2006 MINER Act was to put into motion greater protections
for miners during mine emergencies, and the outgrowth of that
was the creation of standards that--and provisions under the
MINER Act itself to require refuge--alternative to refuge units
to be placed in coal mines--underground coal mines for miners.
These were standards that were basically set back in, oh, I
guess about 2007, 2008, and have basically been in place since
then, as far as the design and use of refuge alternatives.
NIOSH is taking a look at some different factors. The heat
temperature is one of those, and there are a few other issues,
as well, that they are looking at.
About two years ago I issued a request for information to
really take a--just a thorough look at our whole refuge
alternative standards. Is there a better model that we can
build? What could we do differently here? And not only that, to
deal as well with miners' escape.
I have been in a number of mine emergencies myself, going
back to Wilberg, which was--we lost 27 miners in a fire. Took
us a year to find the last miner that was lost.
The Greenwich, Homer City mine explosions, where miners
were lost. Unfortunately, they didn't survive.
We all know the case of Sago and miners who tried to build
a temporary barricade that didn't work, and by the time MSHA
arrived it was too late. I set a course in 2010 to overhaul our
mine emergency response program so we can get to those miners
quicker if that happens again.
And with the initiative that I have launched to really just
take a hard look at what systems we need to have in place--
refuge alternatives. We just closed the record on that I think
April 2, and that is one of my plans.
What do I expect to do before I get out of here, working
with industry and everybody, is try to come up with a better
model so we have miners with the best protections. But that is
a very live issue.
Chairman Walberg. I thank the gentleman. Gentleman's time
is expired.
I now recognize the gentleman from Wisconsin, Mr. Pocan.
Mr. Pocan. Thank you, Mr. Chairman.
And thank you, Mr. Main, not only for your work with MSHA,
but really your lifelong commitment to mining and to the
workers. You know, I know from our conversations you started
very young in life working in the mines, and here you are
making sure that all those workers can get home to their
families every single night, and we really appreciate that
commitment.
I want to ask--you talked just a little bit about the
situation in Utah. I would just like to ask a little bit more
about that--back in August 2007, when six miners were killed
inside the Crandall Canyon Mine and then three more would-be
rescuers, including an MSHA employee, were killed--crushed 10
days later. Following criminal referrals from this Committee
and the Department of Labor, the U.S. attorney eventually
charged a Murray Energy subsidiary with two misdemeanors and
assessed a $250,000 fine for each, which was the maximum
available under the Mine Act.
And I think the judge you referred to was U.S. Federal
District Judge David Sam, who was actually appointed under
President Reagan, who said during sentencing that he was
outraged because of the miniscule amount provided by the
criminal statute in this matter.
So I guess my question specifically is if a knowing and
willful violation of the mandatory safety standard that causes
the death or injury of a miner is a mere misdemeanor under the
Mine Act, however if you make a false statement it is actually
a felony under the Mine Act, does it make sense that killing a
worker is a mere misdemeanor, however lying about the matter is
a felony? And is there adequate deterrence in that current law?
Mr. Main. Two things. I want to first say that my heroes
are those who say, ``I want to volunteer to be a mine
rescuer.'' And at Crandall Canyon there were those that were
engaged in that that lost their lives. And if you understood
what mine rescue really involved, I think we would all be
taking our hats off in a thankful way.
With regard to that protector issue, I think, you know--and
I go back to this: I think the judge looked at the case that he
had before him. He looked at the circumstances he had. He
looked at the Mine Act, of which he had to be controlled by in
the decisions he made, and found it inadequate.
And I think that that speaks louder than anything that I
could say with regard to the limitations of the Mine Act. A
judge was faced with making a decision and felt that he
couldn't do what he wanted to do.
Mr. Pocan. So, you know, in the Robert C. Byrd Mine Safety
Act those penalties are increased. Have you had a chance to
look at that? And what is your opinion on that?
Mr. Main. So, you know, I think the need to have additional
tools in our tool bag to deter folks from making decisions that
has a judge like the judge in Utah having to render a
decision--it is what we really need to do.
Mr. Pocan. Thank you.
Black lung has taken the lives of about 76,000 miners since
1968. Your agency just issued some new health standards in this
area, yet some mine operators have sued to try to block the
implementation of these.
Are the mine operators able to comply with the new
requirements? And have mine operators gamed the system by
underreporting miner exposures to coal dust that caused this
disease?
Mr. Main. You know, I have to say this: The reason that one
of my first actions as assistant secretary was to launch the
End Black Lung--ACT NOW campaign was to rid an industry of a
disease that I think has long passed its time for action to be
taken.
And I am a believer that miners are still getting this
disease. And just look at the miners whose autopsies were
reviewed by the medical examiner in West Virginia that found 17
out of those 24 of those miners, I believe, was the number that
was diagnosed with pneumoconiosis, some as few as five years'
mining experience.
This is a disease that, in regards to what Joe may say or
someone else, if you look at the 76,000 deaths, as I understand
it, those came from death certificates collected, filled out by
physicians and medical examiners across the country that CDC's
NIOSH collects. So there is some, I think, independence here
about, you know, the depth of this disease. It is one that
without question I think we all need to come to terms with.
We proposed a rule as part of our End Black Lung--ACT NOW
campaign that was aimed directly at changing the way that we
make sure that we have dust under control in the mines, because
if you look at that data, it says that that wasn't happening,
okay?
And I think the good news is that in phase one, which we
spent a lot of time out working with the mining industry--I
know Kevin Stricklin, who is behind me, and his staff ran from
one end of this country to the other to work with any mine
operator to get them ready for the phase one of the rule. And
the great news out of that is after 41,000-plus samples, half
by MSHA, half by the mine operators, we have pretty close to 99
percent compliance. And I think that speaks highly of both
the--this rule being able to be effectively put in place and
with the industry really stepping up to the plate to implement
it.
I will tell you this, though: The first part of the End
Black Lung--ACT NOW campaign was really education and outreach.
It was beefing up the enforcement of what we had.
And since we put that in place in 2009, every year we were
able to drop the dust levels in coal mines and the dust
dislocations to historical levels every year. We were able to
get in place better dust control systems that were in place
more often than they ever had been before.
This is making sure, these next steps, that we keep them
there and rid the disease.
As a personal story, a friend of mine named Mike South was
out of the mines I believe in his 50s with black lung. Got so
bad Mike and I would get from that door to that door, you might
as well take about five minutes because the oxygen in his lungs
were so depleted he couldn't breathe.
He got a double lung transplant. Called me from the
hospital just thanking God that someone gave up two lungs for
him, only just a few months later to die because it didn't
work.
Chester Flack, who is a poster child, to a certain extent,
for folks who really have this disease, he was an individual
went through the same thing that Mike did--double lung
transplant, died. The transplant didn't take.
We are really working hard with the industry and everyone
to have measures in place that really ends--rids the coal
industry of this terrible disease, and----
Chairman Walberg. I thank the gentleman.
And I now recognize the gentlelady from New York, Ms.
Stefanik.
Ms. Stefanik. Thank you, Mr. Chairman.
In May 2012, Chairman Kline wrote to you about the injury
and illness rate of mine inspectors, and in your reply to his
letter you noted latent hearing loss as one of the primary
reasons for the high incidence rate levels. In 2014, the injury
and illness incident rate for mine inspectors was 5.2 per 100
employees, whereas last year the industry average was 2.43 per
100. What is MSHA doing to protect inspectors?
Mr. Main. I am sorry, I didn't catch that last part.
Ms. Stefanik. What is MSHA doing to protect these--their
inspectors?
Mr. Main. So I think everyone probably pretty well
understands that the folks that we hire are mining veterans
that come to us from the mining industry. I am a believer in
that five-year rule in the Mine Act, that we should have at
least five years' mining experience, should be the order of the
day.
So you have some folks that come to work with us that have
already had, you know, whatever experience they have had. As a
matter of fact, that is the reason, I have to say, drills in my
left ear sort of, you know, had changed, you know, my hearing
as well.
So we have that, plus we have these mine inspectors going
back into these same conditions with exposures. We provide them
with the best protections that we can, the best guidance and
training that we can. And it is something that concerns us, as
well. I want our miners to be--our inspectors to be as safe if
not safer than the mines, you know, that they inspect.
So we are looking at a number of things to try to improve
that. But I think if you look at both the terrain that they
travel into and their backgrounds when they come to us as
inspectors that there are some issues like that we have to
address.
Ms. Stefanik. Thank you.
My second question relates to the consistency among
inspectors, which is an issue that we continue to hear from
stakeholders about. For example, one inspector may see a hazard
and prescribe abatement in order for the operator to avoid
future citations, whereas in another case another inspector
arrives and in the same work area finds faults with that
abatement and issues a different directive, requiring
additional efforts to mitigate to address those concerns.
What is being done to prevent these inconsistencies from
happening?
Mr. Main. I think if you look back--when I arrived here
there was a number of things in place. The MINER Act had just
went into effect. I think there was an escalation of
enforcement--probably the heaviest for the first time in
history on the metal-nonmetal side.
MSHA had just overhauled the penalty system that increased
penalties from, you know, levels in the $20 million range up to
the $140 million, $160 million range, in terms of the aftermath
of the disasters that happened in 2006. And, as I noted, when I
came here about half of the inspectors that was onboard at the
time had 2 years' or less inspections.
One of the very first things that we did to--and things
have--from 2010 to now I can guarantee you things have changed.
And I just talked to the industry folks out there who I just
came from California, one of my last visits, that we talked
about how much things have changed because of the actions we
have taken.
Those included setting up a training program for our front
line field supervisors that are responsible for overseeing the
inspections. We put into place, actually in May 2010, a
training program that requires every field office advisor every
two years to go through at least a week's training. We are
plowing back any inconsistency issues in that training.
We have pretty much retrained most of our inspectors on the
coal side and the metal-nonmetal side. We have rewritten the
handbooks, and I know probably more extensively on the coal
side we retrained everybody to those.
I personally am out at mine sites, out meeting with our
stakeholders across the country, and we have used that to
reconnect the dialogue between our agency and our stakeholders
out there.
I put back in place a critical piece of helping to resolve
issues, which is the pre-contest conferencing process. Went in
effect in 2012, and what this is is when a mine operator
receives a citation, instead of waiting 'til the lawyers line
up before the Review Commission, they can call up the district
office, say, ``We need to sit down; your fact is wrong here,''
and settle those before you even assign a penalty to it.
We have done 15,000 violations since that time, and about
55 percent of those have never went on to litigation as ways to
resolve it.
These meetings we have across the country in the Midwest
with about eight or 10 aggregate associations, I think I am
getting ready for my seventh trip since I have been here to go
out. We just came from Texas about two weeks ago, California a
couple weeks ago. But we are out basically on the front lines
talking to folks.
And violations are down. Penalties are down. Special
assessments are down considerably; I think they are about half
of what they were in 2010.
We know these things are working. Our efforts to continue
on with our stakeholders and meet and greet and have
discussions, have workshops, they have got us where we are at
and we are going to continue to do that.
Ms. Stefanik. Thank you for the thoughtful answers.
I yield back.
Chairman Walberg. I thank the gentlelady.
I now recognize the gentleman from Indiana, Mr. Rokita.
Mr. Rokita. I thank the chair.
Thank you, Mr. Main. Appreciate you coming back. Been
following your work now for a couple years and I have got a
couple things I want to get through.
First has to do with silica. In your 2014 regulatory agenda
you suggest that you are going to do silica rules by October
2015. Now, you don't have to abide by the Small Business
Regulatory Enforcement Act, but are you going to consider the
impact of these proposed rules on smaller mining operations?
Mr. Main. Well, I think the short answer is we are going to
consider the impact on the whole mining industry, whether it is
small or----
Mr. Rokita. But not specifically the small mines?
Mr. Main. Well, small and large. And whatever requirements
we have, we are going to follow those. But I can tell you, in
our rulemaking process we are a pretty good listener as far as
commenters from the public.
Mr. Rokita. With regard to that listening, are you taking a
look at the scientific documents that were provided to OSHA
during the comment period?
Mr. Main. I am sorry?
Mr. Rokita. The scientific documents that were provided to
OSHA during the comment period regarding your silica
regulation.
Mr. Main. So, yes, their rulemaking is separate from ours,
but I think the path that we are on is sort of looking to see
what is going on at OSHA on their standard----
Mr. Rokita. Will you commit to look at this weighing the
scientific documents?
Mr. Main. Oh, yes. I mean, you know, we are going to have--
we are going to take a good look at the, you know, the
development of the rule on the OSHA side.
Mr. Rokita. As to the scientific documents that were
provided as comments to the rule, can you take----
Mr. Main. We will take a look at all the pertinent--yes.
Mr. Rokita. Okay.
Back to small mines, you know, there have been fatalities
in the metal-nonmetal division, as you know. Your testimony
notes that the Small Mines Consultation Program was moved to
the Educational Field Services Division. Why the move, and can
you provide data demonstrating more outreach to small mines
actually has occurred with this move?
Mr. Main. Okay. So why did we do it? As I sat down and
looked at our resources that we had and how we were deploying
those resources and I started looking at our field operations,
what I found out is that we had two different staff that was in
our training wing, our EFS Field Services Division and our
Small Mines.
And our Small Mines, which was a smaller staff, was not
strategically located in places that I thought we ought to be
in the country. As a matter of fact, some of the states with a
large number of small mines, we didn't have anybody there. And
we had our EFS folks passing our Small Mines folks to go take
care of business.
So the logic is, let's make everybody a field service
trainer, which means that everybody is a small mines, you
know--has the responsibility, as well as EFS.
The other thing that happened is I had discussions--I have
met with the state associations across the country. We have had
this dialogue. It was ongoing for some time.
And so one of the components that I had added to this was
as we formed this new total service to the mining industry for
all of our folks to go out and meet with all the state
associations, the labor organizations, the state mining
associations so we could let them know what we were doing and
get feedback. And the bigger thing I have asked of them, ``We
want to leverage your resources.'' And I know Joe Casper, who
is in the audience here from NSSGA, has been in a few of these
discussions where we have----
Mr. Rokita. Do you have data? Does your office track those
meetings?
Mr. Main. Pardon?
Mr. Rokita. Do you have data that you can provide that
would demonstrate that outreach?
Mr. Main. Yes.
Mr. Rokita. How many associations have you been to, what
your outreach visits----
Mr. Main. Yes. Well over 100 outreach visits that we have
made. And to put the onus on my whole staff that this is done
while I go out and meet with stakeholders, I sort of encourage,
``If you haven't heard from them, call them and let us know.''
I can tell you this, that I am a firm believer that if we
can leverage our resources together--because there is a number
of these associations has far more contact and communication
than we do, and we want to leverage what training resources
that they have to help us get out to the small mines who have
the----
Mr. Rokita. Yes. Do you keep track of those--these
meetings? Do you write them down?
Mr. Main. Yes. I am sure that our training----
Mr. Rokita. Could you provide----
Mr. Main. Yes.
Mr. Rokita [continuing]. The committee that?
Mr. Main. Yes.
Mr. Rokita. How long will it take you to do that?
Mr. Main. Maybe a very short period of time.
Mr. Rokita. Send us a letter.
Mr. Main. I know that the last----
Mr. Rokita. Can you do it in two weeks?
Mr. Main. I think we can do that, yes.
Mr. Rokita. Okay. I will put down two weeks then, okay?
In January, MSHA issued proposed rulemaking changing the
citation process and the assessment of civil penalties and
suggested that the proposed rule was designed to eliminate
subjectivity in the citation process. There has been
controversy around this, specifically with the Mine Safety and
Health Review Commission.
Do you think that when you assess a penalty the commission
has to abide by it?
Mr. Main. So as you see with all the rules we put out
there--proposed rules--we get input from the public, and what
we have done is put out proposed changes, and we put out the
issues that we have requested comment back on to get some
guidance. I can tell you this: Before we wrap that rule up we
will be looking hard at all the comments that came in and
making judgments that parallels both the law, our requirements,
and really the valued input of the constituents.
So I can't really--since it is in the regulatory process I
can't really talk about what we are going to do because that,
you know----
Mr. Rokita. But you are going to have lawyers assess--and I
gotta yield back--you are going to have lawyers assess the
legality of trying to enforce a separate commission to do that.
Mr. Main. Yes. We have noted a lot of comments, you know,
one way or the other.
If you go back to 2010 when I appeared before the full
Committee, I believe it was, this is something I had talked
about as far as reforms to deal with the backlog that we had.
For those that may not be aware, we had a backlog the day I
came here of about 80,000 citation orders that was contested.
That jumped up from an average that the agency was handling
from about 5,000 to 6,000 just a few years before. You can
imagine, you know, what was going on.
So we started looking at reforms: How can we both resolve
the backlog, but forward-looking make some changes that removes
litigation issues and gets us to a better process for mine
operators and for miners?
And part of this is reforms that we had from back in 2010,
and a couple simple ones, that when an inspector goes out and
looks at a mine they have to make a decision on five different
levels of negligence: no negligence, low negligence, medium
negligence, high negligence, reckless disregard. Sort of like a
yes-no reckless disregard approach is what you will see as a
proposed rule.
They have to make a determination of how many miners was
affected by that violation: one, five, 10, 20? And every one of
those added penalty points and added fines.
So when we come out with a proposal, you know, I am an old
farm kid, went to work in the mines. Yes or no. Either folks
were exposed or they weren't. And trying to do some of those
kind of things to resolve some of the--of what I thought was
unnecessary litigation issues, quite frankly.
So yes, there are a lot of moving pieces to the rule, but
we are going to really listen well to the public and making
hopefully some good determinations.
Chairman Walberg. I thank the gentleman.
I now recognize the gentleman from California, Mr.
DeSaulnier.
Mr. DeSaulnier. Mr. Chairman, I would like to yield my time
to the Ranking Member.
Chairman Walberg. Without objection.
Ms. Wilson. Thank you, Mr. DeSaulnier, for that.
Following the Upper Big Branch Mine disaster, MSHA began
impact inspections in mines with a history of safety problems.
When MSHA arrives at a mine site, one of the first actions is
to seize the phones or electronic communication.
Why does MSHA do this? Is there a problem with operators
providing a tipoff? Would stronger sanctions, such as a felony,
deter this kind of misconduct? What tools do you need to
prevent mine operators from giving tipoffs?
Mr. Main. Yes, we do that on occasion. It is just part of
our impact inspections where our enforcement folks have some
concern about advanced notice being provided to the workplace
to change the conditions before they get there and do
inspections. And I think if you look at some of the impact
inspection reports that we issue, it identifies, you know, that
concern quite well.
There have been a number of impact inspections we have done
where we have went in, say an underground coal mine, and been
able to avoid notice that we were present and got to the mining
section to find the ventilation controls not in place.
Ventilation controls are necessary to control the dust that
causes black lung; it is necessary to control methane that
liberates from the coal seam to prevent mine explosions.
Things like that have been evidenced by, you know, by our
inspections where we have had to, as we say, capture the phones
to get there.
And I think that mines that operate like that, although I
think they are fewer than what we were seeing back in 2010,
still exist. And if you look at some of the more recent
examples we have used, I know mines in Virginia and southern
West Virginia where we have found those kind of concerning
issues.
So as we look forward, what next steps could be taken as
far as other tools to remedy that, I think is something that is
very worthwhile looking at, and I think at least in the Byrd
bill there are some provisions that try to address that. One of
them is the--increasing the attention on criminal actions that
could be taken at the end of the day.
Ms. Wilson. Another point I would like to bring up during
this hearing: MSHA has accumulated or referred approximately
$72 million in delinquent fines to the Treasury Department. The
Robert C. Byrd mine safety bill that was filed yesterday gives
MSHA a new tool to address this problem. It authorizes MSHA to
issue a withdrawal order to order miners out of the mine if
fines are not paid within 180 days of a final order or a
payment plan has not been put into place.
What is your view about this approach?
Mr. Main. A tool like that, with the Wilberg mine that I
talked about earlier, would probably change the attitude of
that mine operator and it would require them to--it would put
them on notice that the violations that you accrue putting
miners in danger, you are going to be held accountable for
them, which otherwise left the mine just to rack up violations,
not pay any fines, and leave. So yes, that is a tool that would
be helpful there.
Ms. Wilson. You touched on it a bit but I would like for
you to go into detail about the inexperience of mine inspectors
and how budget cuts factor into that. And what caused this
problem that MSHA had so many inexperienced inspectors? Did
this allow violations to go undetected?
Mr. Main. So I think we are in much better shape today, as
far as the experience of our inspectors, than we were back in,
you know, 2010. And it is something that we are very concerned
about trying to shift whatever resources we can to make sure
that we keep our inspectors hired up.
If you do slip back to where we were back in 2000--probably
about 2009 would have been more difficult, and even 2010, when
I think there was a hiring that took place of about 170 coal
inspectors around 2007 that were added to the mix that were not
eligible inspectors for about two years. So if you look back
into that era, you have got to be concerned about not getting
there again.
Ms. Wilson. Thank you.
Chairman Walberg. I thank the gentlelady.
Now I recognize the gentleman from Virginia, and I guess
the representative of Assistant Secretary Main as well, Mr.
Brat.
Mr. Brat. Yes. Thanks for being here today.
I have no questions so I am going to yield back to my
Chairman. Thank you.
Mr. Main. If I could just make a comment, I live in--
north--just right on--north of Lake Anna----
Mr. Brat. Oh, very good.
Mr. Main [continuing]. So this is my congressman.
Mr. Brat. I was told and thank you for being here today.
And I yield back my time to the chairman.
Chairman Walberg. Gentleman yield to----
Mr. Brat. Yield my time to the chairman.
Chairman Walberg. I thank the gentleman.
Mr. Main, when MSHA finalized the respirable coal dust
regulation it expanded the NIOSH standards for occupational
exposure to respirable coal dust by making significant changes
to the medical surveillance program.
Did you consider implementing a mandatory medical
surveillance program? And I guess the follow up to that was,
what are some of the issues that would need to be considered
with respect to implementing such a program?
Mr. Main. So I think in the record you are going to find
that there was probably pros and cons about, you know, the
mandatory medical--is that the issue that we are----
Chairman Walberg. Yes. The mandatory medical surveillance--
--
Mr. Main. So yes, and coming from a mining culture that I
did, and with the issue of black lung benefits, and with the
issue of miners afraid that they may not get hired at mines,
there has been for years an apprehension that I have seen, you
know, outside of all this of concerns about a mandated chest x-
ray that a mine operator may get to see. And it has been an
issue that has been around for quite some time.
I think in a record there was expression of folks that we
should have this as a mandatory requirement. There was
recommendations that it should not be. At the end of the day, I
chose to leave the law where it was at.
Chairman Walberg. Okay.
Take a little bit of time--and it is impressive, the amount
of time you and Kevin and your team have spent going out to
stakeholders, going out to the mines, meeting with people. Just
talk a little bit about what you have seen on the other side
of--well, not on the other side of ledgering--cooperation with
the industry itself and the stakeholders, specifically mine
operators, mine owners, in developing best case--best practices
in the mining operation, working with their miners who, you
know, as I have had an opportunity to meet with miners myself,
impressive that every day they go to work and do a job that
many of us wouldn't do, and yet they enjoy doing it. They want
to do that. That is their life.
Talk to us a little bit about what you have seen in
industry as best practices, what they are attempting to roll up
their sleeves and bring about mine safety.
Mr. Main. So about every mine I go to--and I spend a lot of
time at mines; that is my favorite place with this job--but if
you just go out and see where the rubber is meeting the road
and what is going on, I think it plays into this narrative that
the statistics tells us that we are seeing a cultural change of
improvement in mine safety.
I was at the--we took Secretary of Labor Perez to the
Cumberland Mine in Pennsylvania, sit down and talk to folks.
This was a mine that has been able to operate steadily in the
Pittsburgh Seam, and they attribute their labor management, you
know, dialogue and communications and working together as their
success story.
The next day we were at the Emerald Mine looking more at
the technological changes at that mine. It is a sister mine to
Cumberland. And we got to see one of the most innovative rock
dusting systems that the miners working for management created,
and may be on my website soon; they just sent it to me so I
could show it.
I saw probably some of the best state-of-the-art dust
controls on the long wall that was designed by the miners that
worked on that long wall, in conjunction with management, with
the manufacturer, I think, in Germany, that they were able to
develop that has them not worried about, you know, the MSHA
dust standard because of the work they have done.
I was just at two quarries out in California about two
weeks ago, one of them been in operation since--for 100 years.
And I believe this was the one that as far back, we could never
find they had a lost-time accident. I went to another quarry
that afternoon and had, I think, one since 2004.
I said, ``What is your secret of success here?'' They
empower the workers, have a good dialogue with the workers, and
our training is minimal training to them, in terms of how they
train folks up.
I was at a coal mine in Alabama, one of the deepest in the
country, the Jim Walter No. 7 mine, a few months ago. And when
you look at transfer points in coal mines where the coal comes
and dumps, you have a lot of spillage, you have a lot of dust.
This was one of the cleanest ones I ever seen.
They reengineered their whole transfer point to where it is
worker friendly--you don't have to take a shovel in; you could
take a water hose--and the way they designed it to--I mean,
these are the kind of things--the Leeds cement plant I was in
Alabama, 100-year-old cement plant on its last leg, had all
kinds of safety and injury problems. New management came in,
management, the Steelworkers who represented the workers there,
got together with our local MSHA office. And when I was there I
got to see the benefits of a success story where that 100-year-
old cement plant was able to go from the bottom of the barrel,
about ready to not be around anymore in this economy, to one of
the better plants that the company had.
So, you know, there are a lot of things that are going on
out there that we are trying to get these best practices sort
of like embedded through the industry. And, of course, the one
of the proximity detection, if it wasn't for companies like
Alliance, CONSOL, that spent the energy and money to build our
proximity system to where it is at, we probably would have a
more difficult time putting those rules in.
Chairman Walberg. Well, I appreciate that and your
testimony. Thanks for taking the time to join us here. It has
been a good update, and I am sure we have other questions, but
that will come at a time.
I now recognize my colleague and ranking member, Ms.
Wilson, for her closing statement.
Ms. Wilson. Thank you, Mr. Chair.
Very, very quickly, Mr. Chairman, I want to thank you again
for holding this hearing and giving all of us an opportunity to
hear about the reforms MSHA is undertaking and how we here in
Congress can support MSHA in its efforts to increase mine
safety. This was very enlightening to me, and I appreciate all
of your testimony, Honorable Mr. Main.
I also want to thank our witness, Assistant Secretary Joe
Main, for his testimony today, which I just did.
You were fantabulous. This is new to me, and I really
learned a lot just hearing your testimony and begin exposed to
all of the questions today. I feel we are on the right track
and I look forward to working with you in the future.
As we have heard, since the tragedy of Upper Big Branch
MHSA has taken substantial steps to better protect the safety
of our miners, and that is what our committee is all about.
These reforms include beginning monthly impact inspections and
finalizing rules that prevent black lung disease and crushing
injuries.
We applaud the work that has been done and the reforms that
have been made. Last year, fatalities in coal mining dropped to
16, the lowest levels in years.
However, we cannot forget that the preventable tragedy in
Upper Big Branch took place a year after mine fatalities also
hit record lows. We also cannot forget that last year metal-
nonmetal mining fatalities reached a seven-year high.
This reminds us that we must continue to be diligent. We
here in Congress must ensure MSHA has the tools and funding it
needs to check the mine operators that disregard the safety of
miners. We are the Workforce Protections Subcommittee.
And the Robert C. Byrd Mine Safety Protection Act provides
MSHA with those much-needed tools, including expanded subpoena
power.
I hope, Chairman Walberg, that you and I can discuss
legislation that gives MSHA expanded subpoena power. I look
forward to working with you on this issue, and I yield back the
balance of my time. Thank you.
Chairman Walberg. I thank the gentlelady. And we will
certainly continue to work together in the best way possible
where we meet necessary concerns.
Again, Assistant Secretary Main, thank you for the work you
do. Thanks for paying attention to our concerns, answering
questions.
And thank you for being out amongst the field. I know you
enjoy being there, and that is a good thing.
I think our concerns today are the fact that yes, we do, as
has been mentioned by my colleague, we have a record now of
success. We have safety that has been offered.
The 16 deaths--or the 38 deaths, I guess, that you
mentioned, last year cannot be discounted. And yet, the
continued improvement that we have seen in the last several
years has evidenced something that we ought to applaud and
celebrate and build upon.
I would just encourage continued working with the mining
industry themselves on pattern of violation issues of concern,
making sure that the clarity is there. I mean, the efforts that
have been undertaken to deal with proximity detector
regulations I think has shown how important and valuable and
productive it is in working hand-in-hand with the industry
itself.
We have heard support from the industry on what has gone on
there. I think that support is offered and will continue as you
expand proximity detectors in other equipment and machine
operations.
Having stood next to and between the wall and the
continuous mining machine, which is an awesome machine, from my
uneducated evaluation, I can see why there is a need there. And
yet, to hear that industry is producing and developing that is
something that says that there has to continue being a teamwork
aspect.
Training and best practices--having been on site at some of
the industry-provided training centers, that can be helpful not
only for mining operations in this nation but also worldwide.
The impact that could have, again, comes from the private
sector and working in partnership--public--federal government
working with the private sector. I think that can be extremely
positive.
And then the funding area. As we look at the funds that
have been used for the coal mining operations and the decrease
in coal mining operations, which personally I would like to see
that slide stop because there are jobs and there are people
that depend upon those mining operations, and I think energy in
our country and the world depend upon that, as well.
Yet, we have seen dollars go there that could have gone to
the metal-nonmetal operations, and I appreciate the testimony
you have given about reconsidering and looking at that and
shifting dollars to meet those needs.
So I guess in conclusion I would say I think from what I
have heard today versus what I heard several years ago, there
have been successes. There have been improvements. And that
continues.
The concern that I will continue to express--maybe not so
much a concern, but a direction from this subcommittee--is to
make sure that we work hand in hand, a partnership with
business and industry as well as with the regulator to make
sure it is a partnership that promotes success and long-term
growth in this industry.
Having said that, I thank you again.
I thank my colleagues for your attention to this hearing.
And with no other concerns that come before the Committee
at this time, it is adjourned.
[Additional submission by Mr. Rokita follows:]
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[Questions submitted for the record and their responses
follow:]
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[Whereupon, at 10:31 a.m., the subcommittee was adjourned.]