    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                         PROTECTING AMERICA'S WORKERS:
                             REVIEWING MINE SAFETY
                           POLICIES WITH STAKEHOLDERS

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

                                    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, OCTOBER 21, 2015

                                   __________

                               Serial No. 114-32

                                   __________

      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 October 21, 2015.................................     1

    Statement of Members:
        Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
          Protections................................................     1
            Prepared statement of....................................     4
        Wilson, Hon. Frederica S., Ranking Member, Subcommittee on
          Workforce Protections......................................     6
            Prepared statement of....................................     8
    Statement of Witnesses:
        Elliot, Mr. Ed, Director of Safety and Health, Rogers Group,
          Inc., Vincennes, IN........................................    36
            Prepared statement of....................................    38
        Kohler, Dr. Jeffrey, L., Professor and Chair of Mining
          Engineering, Pennsylvania State University, University
          Park, PA...................................................    11
            Prepared statement of....................................    13
        Sanders, Mr. Stephen A., Director, Appalachian Citizens' Law
          Center, Whitesburg, KY.....................................    16
            Prepared statement of....................................    18
        Watzman, Mr. Bruce, Senior Vice President, Regulatory
          Affairs, National Mining Association, Washington, D.C......    53
            Prepared statement of....................................    55
        Wright, Mr. Michael J., Director of Health, Safety and
          Environment, United Steelworkers, Pittsburgh, PA...........    46
            Prepared statement of....................................    48
    Additional Submissions:
        Chairman Walberg:
            Letter dated October 19, 2015, from the U.S. Department
              of Labor, Mine Safety and Health Administration........    66
        Mr. Watzman:
            Letter dated October 28, 2015, from the National Mining
              Association............................................    86
        Ms. Wilson:
            Letter dated October 30, 2015, from the U.S. Department
              of Labor, Mine Safety and Health Administration........    91

                         PROTECTING AMERICA'S WORKERS:
                             REVIEWING MINE SAFETY
                           POLICIES WITH STAKEHOLDERS

                                  ----------

                          Wednesday, October 21, 2015

                         U.S. House of Representatives

                    Committee on Education and the Workforce

                     Subcommittee on Workforce Protections

                                Washington, D.C.

                                  ----------

        The subcommittee met, pursuant to call, at 10:04 a.m., in
    Room 2261, Rayburn House Office Building. Hon. Tim Walberg
    [Chairman of the subcommittee] presiding.
        Present: Representatives Walberg, Thompson, Rokita, Brat,
    Bishop, Stefanik, Wilson, Pocan, and DeSaulnier.
        Also Present: Representatives Kline, Scott, Cartwright, and
    Courtney.
        Staff Present: Andrew Banducci, Workforce Policy Counsel;
    Janelle Belland, Coalitions and Members Services Coordinator;
    Ed Gilroy, Director of Workforce Policy; Jessica Goodman,
    Legislative Assistant; Callie Harman, Legislative Assistant;
    Christie Herman, Professional Staff Member; Tyler Hernandez,
    Press Secretary; Nancy Locke, Chief Clerk; John Martin,
    Professional Staff Member; Dominique McKay, Deputy Press
    Secretary; Brian Newell, Communications Director; Krisann
    Pearce, General Counsel; Alissa Strawcutter, Deputy Clerk;
    Juliane Sullivan, Staff Director; Loren Sweatt, Senior Policy
    Advisor; Olivia Voslow, Staff Assistant; Joseph Wheeler,
    Professional Staff Member; Tylease Alli, Minority Clerk/Intern
    and Fellow Coordinator; Christine Godinez, Minority Staff
    Assistant; Brian Kennedy, Minority General Counsel; Richard
    Miller, Minority Senior Labor Policy Advisor; Veronique
    Pluviose, Minority Civil Rights Counsel; Saloni Sharma,
    Minority Press Assistant; and Elizabeth Watson, Minority
    Director of Labor Policy.
        Chairman Walberg. Good morning. I decided to go with the
    flow here and have a new gavel this morning. Those of you at
    the table, you know what this is from a long wall scaling
    machine, and possibly a culprit in the past, but also something
    that is causing great opportunity in our coal mining industry
    as well. Forgive me if I use this today. I just have to make
    sure I release it ever so slowly with the weight that is in it.
        A quorum being present, the Committee will come to order.
    Good morning. I would like to thank you all for joining us
    today and thank our witnesses for being here to continue a
    discussion on the health and safety of American workers.
        Each day, men and women across this country work hard to
    earn a living and provide for their families. They deserve
    thanks for doing something they should do, but nevertheless
    thanks as well.
        They also deserve the security and peace of mind that comes
    from knowing their workplaces are safe and effective policies
    are in place to protect them. That is true whether an
    individual works at a desk, behind a counter, or in a mine.
        Two weeks ago we discussed the important role of the
    Occupational Safety and Health Administration and what it plays
    in that process in providing American workers the safe
    workplaces they deserve.
        Earlier this year we heard from Assistant Secretary Joe
    Main, head of the Mine Safety and Health Administration, who
    discussed the work his agency is doing to help keep miners
    safe.
        On each occasion, we urged the administration to hold bad
    actors accountable, as well as to work with employers and other
    stakeholders to identify gaps in safety and to implement
    responsible solutions. The goal is to prevent injuries and
    fatalities before they occur, and this responsible approach is
    the best way to achieve that goal.
        Today, we will hear from a number of stakeholders in the
    mining industry, including operators and labor and safety
    experts. There have been significant changes in the mining
    industry over the last several years, including the way health
    and safety policies are enforced.
        This hearing is an opportunity to hear what is working and
    what is not. As we all know, thousands of miners are employed
    by an industry that is vitally important to our nation's homes
    and businesses. I hope all levels of our governmental system
    hear that and acknowledge that.
        We also know these men and women work in an environment
    that is extremely dangerous, where some of the most basic tasks
    can be life threatening. It is hard to imagine working in a
    place where the very air you breathe is hazardous to your
    health. That is just one of the many hazards miners face.
        We have witnessed the deadly consequences that ensue when
    mine safety and health rules are not followed. Upper Big Branch
    is a painful reminder of what happened when bad actors put
    profit before safety, and a trial currently underway in West
    Virginia demonstrates the role our criminal justice system can
    play.
        Upper Big Branch is also a painful reminder of what happens
    when mine safety and health rules are not properly enforced. As
    an independent report from National Institute for Occupational
    Safety and Health noted, 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 UBB explosion.''
        In response, the agency has taken steps intended to improve
    safety, such as requiring the use of continuous personal dust
    monitors and proximity detectors, launching an impact
    inspection initiative, and changing the pattern of violations
    process.
        We have repeatedly called on MSHA to do better, and while
    we have not agreed with each action it has taken, we are
    pleased the agency is showing more of a commitment to using the
    tools it has to keep miners safe.
        Unfortunately, along with reports of effective enforcement,
    I have also heard reports of inspectors being overly aggressive
    in their citation policy. With one inspector, the majority of
    citations were found to be in error by a court. We agree that
    oversight of mine safety is imperative to worker safety, but we
    also want to ensure mines can continue to successfully operate
    and provide good jobs and security for its workers.
        We look forward to hearing from our witnesses on these and
    other actions MSHA has taken in recent years, understanding the
    state of the industry, seeing how current rules are not
    working, and discussing what we can do differently are vital to
    worker safety and job security.
        That is why we have asked you all to join us today. Each of
    you offers a different and important perspective on the
    policies in place to protect America's miners. Your views and
    expertise will help us answer a number of important questions.
        Are the policies that have been put in place in recent
    years working? If not, why not? Is enforcement more effective
    or less effective? Are there additional steps MSHA can take to
    strengthen protections?
        Your testimonies will help us ensure enforcement and
    regulatory policies serve the best interests of miners and
    their families. Again, I thank you for joining us. We look
    forward to your testimony and continuing this important
    conversation on worker safety.
        With that, I will now recognize our Ranking Member, Ms.
    Wilson, for her opening remarks.
        [The statement of Chairman Walberg follows:]

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        Ms. Wilson. Thank you, Mr. Chair. I want to thank you for
    holding this hearing and giving us the opportunity to discuss
    how we can better protect the health and safety of miners. Our
    Ranking Member Scott, I want to thank you also for being here.
        When we discuss the health of miners, we must discuss
    finding ways to end black lung disease, and also to help those
    suffering from the disease secure the benefits they deserve.
        I was moved by the story of Steve Day, a miner, featured in
    the Center for Public Integrity's Pulitzer Prize winning
    investigation into the black lung benefit system. After 35
    years working in the coal mines and breathing in coal dust,
    Steve developed debilitating symptoms that made it impossible
    to perform even simple tasks. Instead, he was forced to spend
    his days sitting in a recliner next to the oxygen tank he
    relied on 24 hours a day.
        He was not able to even lie down to sleep next to his wife.
    To do so would overwhelm his lungs and leave him feeling as if
    he were suffocating. His wife slept restlessly in a nearby
    bedroom, jumping out of bed when he gasped for air and pounding
    him on the back until he coughed. I can only imagine the
    sleepless nights his wife spent fearful that if she should
    close her eyes for only a moment, she would wake up to hear he
    was not breathing at all.
        Steve represents the thousands of miners suffering from the
    debilitating disease that has killed 76,000 coal miners. Sadly,
    after years of decline, we have seen an alarming spike in the
    rate of black lung disease, including a ten-fold increase in
    the most severe forms of the disease.
        Black lung disease is entirely preventable. MSHA's
    respirable dust rule will reduce miner exposure to coal dust.
    Starting February 2016, mine operators must use a continuous
    personal dust monitor. This tool will allow for real time
    exposure information and give operators the ability to make the
    necessary adjustments to cut exposure faster.
        Beyond prevention, we must also ensure that miners who
    develop black lung disease get the benefits they deserve. Our
    Committee has not had a hearing on the Black Lung Benefits Act
    in almost 25 years. I am glad for this opportunity to hear from
    our witnesses about challenges faced by black lung claimants.
        Steve Day's story underscores some of those challenges.
    Although he was clearly suffering from black lung, his former
    employer used biased medical reports that led to the denial of
    his benefits claim. Sadly, it was not until Steve died at 67
    and an autopsy was performed that he was vindicated. According
    to experts, Steve suffered from one of the most severe cases of
    black lung they had ever seen.
        Miners with black lung disease fighting for their lives
    should not also have to fight against unfair tactics that
    needlessly delay or deny deserved benefits. That is why we must
    pass the Black Lung Benefits Improvement Act to provide miners
    with assistance in securing medical evidence and obtaining
    legal representation.
        Of course, we know that all mines are not coal mines.
    Today, we will also hear about safety issues in metal and non-
    metal mines. Last year, fatalities in metal/non-metal mines
    reached a seven year high. This reminds us that we must ensure
    that we have the tools we need to protect miners' safety.
        As we discussed in our April hearing, the Robert C. Byrd
    Mine Safety Protection Act provides those much needed tools.
        I want to thank our witnesses for being here today. I look
    forward to your testimony, and I yield back.
        [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
    remain 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 introduce today's witnesses. The
    first witness, Jeffery L. Kohler, Ph.D., is professor and the
    George H. and Ann B. Deike Endowed Chair of Mining Engineering
    at Penn State University. Good Big Ten school. Dr. Kohler
    recently retired from the National Institute for Occupational
    Safety and Health as the associate director for mining, Office
    of Mine Safety and Health Research.
        Mr. Kohler teaches mining engineering courses and has
    conducted research in several areas, including electrical
    systems, materials handling, ventilation, quarry engineering,
    and mining methods. Welcome.
        Steve Sanders is director for the Appalachian Citizens' Law
    Center (ACLC). Mr. Sanders founded ACLC, an organization
    representing coal miners and their families on issues of black
    lung and mine safety in 2001. Mr. Sanders has more than 20
    years of experience as a public interest lawyer in eastern
    Kentucky.
        Mr. Sanders has represented miners in whistleblower
    discrimination cases as well as black lung benefits cases.
    Welcome.
        Ed Elliott is director of safety and health at the Rogers
    Group, and is testifying on behalf of the National Stone, Sand
    and Gravel Association. Mr. Elliott has been with Rogers Group
    in various safety positions since 1985. Mr. Elliott has earned
    numerous awards including the National Stone, Sand and Gravel
    Association Safety and Health Professional of the Year for
    2002, to Aggregate Managers Magazine Ag Man of the Year for
    2004, and Kentucky Crushed Stone Association Miner of the Year
    for 2014. Welcome.
        Michael Wright is director of health, safety and
    environment at United Steelworkers. As a former United
    Steelworkers' member myself, welcome.
        Mr. Wright has been with the Steelworkers since 1984. He
    served as a representative to the Bhopal accident
    investigation. Mr. Wright is often the Steelworkers'
    representative at regulatory and congressional hearings.
    Welcome.
        Bruce Watzman is the senior vice president for regulatory
    affairs at the National Mining Association. Mr. Watzman has
    worked for the National Mining Association and its predecessor,
    the National Coal Association, since 1980.
        Mr. Watzman was recently appointed as a member of the Mine
    Safety and Health Research Advisory Committee. I welcome you.
        I will now ask our witnesses to stand, as is our
    requirement here, and raise your right hand.
        [Witnesses sworn.]
        Chairman Walberg. Thank you. You may be seated. Let the
    record reflect our witnesses each answered in the affirmative
    and you may take your seats.
        Before I recognize you to provide your testimony, let me
    briefly remind you of our lighting system, and I think most of
    you understand that. It is a traffic light. As long as it is
    green, keep going in your five minutes of testimony. When it
    hits yellow, rush through or slow down, but to the point when
    it turns red, end your comments as soon as possible to give us
    an opportunity to ask the questions, probably to respond to
    what you wanted to say anyway.
        Now for the first five minutes of testimony, I will
    recognize Dr. Jeffery Kohler.

      TESTIMONY OF DR. JEFFERY L. KOHLER, PROFESSOR AND CHAIR OF
     MINING ENGINEERING, PENNSYLVANIA STATE UNIVERSITY, UNIVERSITY
                                PARK, PA

        Dr. Kohler. Good morning, Mr. Chairman, and other
    distinguished members of the Committee. My name is Jeff Kohler,
    and I am a professor and chair of mining engineering at Penn
    State. I am pleased to be here today to provide a forward
    looking perspective on mine safety based on my experience of
    more than 40 years in mining, working in academia, government,
    and industry.
        The global economy continues to be powered by mining and
    mine products. Examples include energy sources like coal,
    construction materials that utilize iron, copper, or
    aggregates, the rare earth minerals, pharmaceuticals,
    agricultural produce, and thousands of every day items that
    depend on mining.
        The associated mining and processing operations are a
    significant driver for the economies of the producer countries,
    15 percent of the U.S. and 25 percent of the global economy,
    for example.
        Fundamental economic value and wealth are created in the
    transformation of materials from the earth's crust, and the
    welfare of the men and women who make this possible must be of
    the highest concern.
        Remarkable gains in mine safety have been made over the
    years, but more remains to be done. The goal must be to
    eliminate fatalities and further reduce injuries. Indeed, many
    mining companies have committed to the goal of zero harm and
    are to be commended for taking actions to achieve it.
        If we are to be successful on this journey to zero harm
    across all commodities and at all mines, what steps should be
    taken? We need to dispel the belief that compliance with
    regulations is sufficient to prevent adverse safety outcomes.
    Regulations provide an important base to define minimum
    performance but regulatory intervention alone will not do it.
        Engineering interventions such as new technologies and
    design practices will contribute to improved safety, but alone
    will not take us to the goal.
        Training, the third intervention of a triad, that has
    characterized the long-standing approach to improving mine
    safety, also will contribute to incremental gains. As with the
    other two intervention approaches, it has limitations.
        Instead, we should recognize that safety performance is the
    result of a complex system of organizational, managerial,
    labor, and technical components, and we must manage it
    accordingly, and involve people from every part of the mining
    enterprise.
        A framework for this is commonly known as ``a health and
    safety management system,'' and such systems have been put into
    practice in other industries and countries. The National Mining
    Association, for example, has led the development of a
    comprehensive system for mining known as ``CORESafety,'' and
    has developed materials to expedite implementation. Already,
    companies in the coal, metal/non-metal, and aggregate sectors
    have embraced CORESafety and its principles.
        The journey to zero harm with this approach at its core
    will not happen overnight, and it will not be without its
    challenges. However, in my view, this approach represents a
    game changer that will enable a change in the safety culture
    and facilitate obtainment of the goal much as has happened
    elsewhere.
        The in-place regulatory interventions will remain important
    as will enforcement of those regulations by well trained and
    equipped inspectors. Training interventions for everyone
    involved in mining will be as important as ever, but to be
    effective, we must bring our training practices and
    requirements into the twenty-first century.
        As a start, the findings of a recent National Academies'
    study on improving self escape for mine workers offers
    important insights to improve the effectiveness of training in
    general.
        The Mine Act brought new technologies into the mines, such
    as the communications and tracking systems in use throughout
    the coal industry, as well as the long awaited improvements in
    oxygen supply. The principles of human systems integration will
    allow future engineering interventions to be even more
    successful.
        Occasionally, despite the best efforts of manufacturers,
    government, and industry, technology falls short. Such is the
    case with mobile refuge chambers. Miners and mine operators
    have no confidence that these units can be deployed and
    utilized to save lives during an emergency. Rather than
    continue a facade, we should move forward with a known and
    workable alternative, the in-place shelter. While not perfect
    nor universally applicable, it represents a superior
    alternative for a majority of miners.
        Finally, I would like to underscore once more the
    importance of mining to this nation and the importance of mine
    workers' safety to mining. Also, I would note that research and
    the research products from the great mining schools in this
    country will help this vital industry to remain competitive and
    to achieve its goal of zero harm.
        Thank you.
        [The statement of Dr. Kohler follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        TESTIMONY OF STEPHEN A. SANDERS, DIRECTOR, APPALACHIAN
                  CITIZENS' LAW CENTER, WHITESBURG, KY

        Mr. Sanders. Thank you, Chairman Walberg, Ranking Member
    Wilson, and the other members of the subcommittee. I appreciate
    your commitment to protect the health and safety of America's
    miners.
        My name is Steve Sanders. I am an attorney, and I have been
    representing miners and widows in black lung benefits claims
    for over 25 years. I have also represented miners who were
    victims of discrimination for insisting on safe working
    conditions.
        There are three points that I want to make today. First,
    black lung is a serious problem and it continues to disable
    miners and cause deaths. New data shows that the most serious
    form of coal workers' pneumoconiosis is present at an alarming
    rate.
        MSHA's regulations reducing respirable dust levels and
    requiring continuous personal dust monitors and other measures
    to get accurate sampling of dust exposure are critical for
    protecting miners.
        Additional safety measures encouraging miners to use their
    statutory rights as a miner's representative and to be
    protected from discrimination are needed.
        Third, the black lung benefits program is a good program.
    It serves people well. But there are improvements needed to
    make it a fairer and more efficient program.
        The continuous personal dust monitor is long overdue, and
    it is necessary to fulfill the promise made nearly 50 years ago
    in the 1969 Mine Safety Act, which said that the purpose of the
    law was to provide that working conditions in mines are
    sufficiently free of respirable coal mine dust to permit a
    miner to work during his entire working life without any
    disability from pneumoconiosis or occupation-related disease.
        Coal workers' pneumoconiosis is preventable. It is caused
    by breathing minute dust particles, small invisible particles
    that get into the lung and destroy the lung tissue and cause
    fibrotic reactions. Some individuals develop a more complicated
    form of pneumoconiosis, sometimes known as progressive massive
    fibrosis.
        Recent reports from NIOSH show that in the last 15 years,
    there has been an alarming rise in the incidence of progressive
    massive fibrosis, and the disease is at the highest level since
    the early 1970s.
        The continuous personal dust monitor will allow miners to
    monitor their own exposure to dust. This is the continuous
    personal dust monitor if anyone wants to look at it (holds up
    device). It is designed so that it picks up the air where the
    miner is working and it can show on the monitor what the
    exposure is. Using that information, miners and management can
    prevent exposure to excess dust.
        I also support MSHA's new requirement that dust sampling be
    done at no less than 80 percent of average production and that
    sampling be done for the full working shift, not just for eight
    hours.
        As this dust monitor becomes a tool for miners to use to
    detect high levels of dust, it is important that miners use
    their statutory safety rights. It is important that MSHA
    strengthen the role of what is known as a ``miner's
    representative,'' and MSHA assist miners who feel they have
    been retaliated against for making safety complaints.
        In my written testimony, I discuss the cases of Scott
    Howard and Reuben Shemwell. They illustrate how some coal
    companies try to discourage miners from making safety
    complaints, and how they retaliate against miners who do make
    complaints.
        As the judge noted in Mr. Shemwell's case where the company
    sued him in state court after he had filed a protected mine
    safety complaint, ``The primary effect of the civil suit was to
    discourage future complaints from other miners.''
        The coal communities often are small populations, and that
    word goes out, if you will, that the company has responded in a
    heavy-handed manner.
        I also wanted to make a few comments about the black lung
    benefits program. It provides much needed financial support for
    disabled miners and widows, and it provides the miner with
    medical treatment for his respiratory condition, but there are
    areas that need to be improved.
        The facts in the Gary Fox case showed that some companies
    cherry picked their evidence that they showed to the pulmonary
    experts, that they submit to judges, to support their defense
    of a claim. No family should have to endure what the Fox family
    suffered.
        Any medical information that the coal company acquires
    concerning the miner's condition should be disclosed.
        I see I am running out of time. But if I could just mention
    that the other part of the bill that I think is very important
    is a provision in there to assist miners in getting attorneys
    to represent them in these claims, because they are complex
    claims, and to assist miners in obtaining sophisticated medical
    evidence to support their claims.
        Finally, there are unnecessary delays in processing these
    claims, and if the Committee could assist in seeing that
    backlog of claims pending at the Office of Administrative Law
    Judges was able to be processed in a more speedy way, it would
    be a great service to miners and their widows.
        Thank you.
        [The statement of Mr. Sanders follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you, Mr. Sanders. Mr. Elliott, I
    recognize you for your five minutes of testimony.

    TESTIMONY OF ED ELLIOTT, DIRECTOR OF SAFETY AND HEALTH, ROGERS
        GROUP, INC., VINCENNES, IN, TESTIFYING ON BEHALF OF THE
               NATIONAL STONE, SAND & GRAVEL ASSOCIATION

        Mr. Elliott. Thank you, Chairman Walberg, Ranking Member
    Wilson, and members of the Subcommittee on Workforce
    Protections.
        My name is Ed Elliott. I am the Director of Safety and
    Health for Rogers Group, Inc. Today, I am pleased to testify on
    behalf of the National Stone, Sand & Gravel Association. Rogers
    Group is the largest privately owned crushed stone producer in
    the nation, providing construction grade aggregates,
    transportation, and infrastructure construction services in 11
    states.
        The shareholders and leadership of Rogers Group, Inc. are
    committed to the safety and well-being of their employees,
    neighbors, and communities.
        The National Stone, Sand & Gravel Association is the
    world's largest mining association by product volume. NSSGA
    represents the crushed stone, sand and gravel industries, and
    its member companies produce more than 90 percent of crushed
    stone and 70 percent of the sand and gravel consumed annually
    in the United States.
        The aggregate sector has a long history of commitment to
    becoming the safest and healthy as possible in the production
    of aggregates.
        We collaborate with government agencies, most notably MSHA,
    with which NSSGA signed an alliance agreement for education and
    training 13 years ago. This has given birth to a number of
    effective compliance assistance programs such as safety alerts
    derived from MSHA injury data.
        Also, we collaborated with MSHA on the development of an
    instructional video for MSHA inspector trainees on the operator
    perspective on compliance.
        Nevertheless, we find many of MSHA's regulations overly
    burdensome without requisite benefits to health and safety. We
    believe the proposed civil penalties reform rule does not meet
    its stated goals and is likely to result in dramatic increases
    in penalty assessments.
        Additionally, we are concerned that MSHA's regulatory
    agenda calls for a rule on crystalline silica to be proposed
    next April. We believe that an objective rendering of the
    relevant scientific evidence demonstrates that the current
    permissible exposure limit, if fully complied with and
    enforced, is protective of worker health.
        MSHA is to be applauded for its good stakeholder outreach
    which has been ramped up in the past several years. Also, the
    agency has achieved important reductions in inconsistent
    enforcement by its inspectors, but improvements are still
    needed with ongoing vigilance by agency leadership.
        Regrettably, however, we believe that MSHA enforcement
    efforts have not focused as much as they should on those
    conditions of highest risk, especially in today's resource
    challenged environment. We believe that MSHA enforcement should
    focus on areas of greatest potential peril.
        The dichotomy of more expansive enforcement simultaneous to
    operator success in continuing to reduce injuries and
    fatalities risk undercutting the cost for safety and health. It
    also jeopardizes the perception of MSHA as a genuine respected
    government entity working for the common good.
        Many operators fear there is a bureaucratic push within the
    agency for inspectors to meet a quota of citations written.
    While agency leaders deny any quotas, it is difficult for
    operators to conclude anything else based on experience.
        One excellent operator last year saw around half of all
    routine inspections result in zero citations. This makes sense
    because the operator has been diligent in investing time and
    capital into clearly meeting all of MSHA's standards.
        However, what does not make sense, in 2015, inspectors have
    issued a significant increase in the number of citations
    simultaneous to the company having further improved its safety
    performance. Inspectors arrive saying in advance this will not
    be a zero citation inspection.
        I hope you understand operators cannot help but wonder if a
    decision is based on the facts or on bureaucracy based pressure
    within the agency to boost the number of citations issued.
        We believe that improvement would be achieved if MHSA would
    establish a pattern of compliance program. This would enable
    the inspectorate to grant some form of enforcement credit to
    operators for outstanding adherence to MSHA standards and
    keeping low rates of injuries.
        We support further investment in compliance assistance as
    called for in the Mine Act. Quality training materials that
    demonstrate compliant practices should become an agency point
    of emphasis.
        Also, we support revitalization of the agency's provision
    of quality compliance assistance to small mine operators.
        Mr. Chairman, we stand ready to work with MSHA in a common
    sense approach to regulation and enforcement. Further, we urge
    that MSHA seek new and innovative ways to help us achieve our
    common goal of zero injuries in a way that the limited
    resources of the Federal Government can be targeted at the most
    serious hazards.
        Thank you, and I will be happy to respond to any questions.
        [The statement of Mr. Elliott follows:]

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        Chairman Walberg. Thank you. Mr. Wright, I recognize you
    now for your five minutes of testimony.

    TESTIMONY OF MICHAEL J. WRIGHT, DIRECTOR OF HEALTH, SAFETY AND
            ENVIRONMENT, UNITED STEELWORKERS, PITTSBURGH, PA

        Mr. Wright. Thank you, Mr. Chairman, and thank you, Ranking
    Member Wilson, and other distinguished members of the
    subcommittee.
        My name is Mike Wright. I am the Director of Health, Safety
    and Environment for the United Steelworkers. Our union
    represents 850,000 workers in a wide variety of industries,
    including the majority of unionized metal and non-metal miners
    in the United States and Canada. Altogether we represent more
    than 15,000 miners who work in about 138 mines in the U.S. We
    represent another 18,000 in Canada.
        I have never worked as a miner personally and do not
    consider myself to be one, but I have done safety and health
    work in several dozen mines in the United States, Canada,
    Poland, and Russia. I am also a member of NIOSH's Mine Safety
    and Health Research Advisory Committee, and for what it is
    worth, my Part 48 training is updated.
        MSHA's impact has been enormous, even if we take into
    account the decline in mining employment since 1977, the year
    the Mine Act was passed, the death rate from traumatic injury
    in our nation's mines has dropped by 77 percent. That number
    does not include the miners saved from lingering deaths from
    diseases like black lung and silicosis.
        Of course, MSHA was not the sole cause of the decline.
    Technological change, mine safety research, mine operators
    themselves, mining unions, all played a part. MSHA was the
    driving force, the catalyst for all the good things that
    happened.
        Even so, there is lots of room for improvement. We lost 45
    miners in mine accidents last year, 25 so far this year. Let me
    offer a few suggestions for improving mine safety and health.
    Most importantly, there should be no backward steps. Every year
    there are proposals to exempt a particular group of mines from
    some set of legal requirements or to cut back on inspections
    and penalties, or to shift MSHA's resources away from
    enforcement toward voluntary programs, or to reward so-called
    ``safe mines.''
        The problem is determining that a mine is truly safe and
    stays that way. Our union had some sad experience with this
    issue. On April 9, 1992, the Westray Coal Mine in Nova Scotia
    won the prestigious John T. Ryan Award given annually to the
    Canadian coal mine with the fewest injuries. Exactly one month
    later a methane and coal dust explosion killed all 26 miners
    underground at the time.
        We were working at the time to bring the mine into our
    union, and although it never reopened, we continued to
    represent the families and the remaining miners through the
    long years of inquests and hearings, and that is the worse
    mining disaster in recent Canadian history.
        Other proposals would disallow MSHA's citations for first
    violations, giving those mine operators a free pass to violate
    the law until caught. Miners, of course, get no such free pass,
    and do not spring magically back to life the first time they
    are killed, like in some video game.
        Others would give more weight to voluntary compliance. We
    are all for voluntary compliance, but the problem with
    voluntary compliance is not everybody volunteers. In fact,
    enforcement stimulates voluntary efforts. Reduce the one and
    you will reduce the other.
        What about forward steps? Let me suggest a few. First, MSHA
    enforcement is based on a rule book of mandatory standards.
    Those standards are necessary but no effective corporate safety
    program relies on passive compliance with a rule book. Instead,
    good programs actively seek out and correct workplace hazards.
        MSHA began preliminary work on a new safety and health
    program standard six years ago, but it has languished. No new
    regulation or initiative would have a greater positive impact
    on mine safety and health.
        Second, MSHA should take a careful look at the
    effectiveness of its current Part 48 training programs. The
    problem is not so much the length of the training but the
    content and especially the methodology. Too often miner
    training, especially refresher training, consists of bored
    miners watching PowerPoints or videos from equally boring
    instructors without any real interaction or discussion of the
    safety problems they encounter on the job. A full scale review
    by MSHA including experts in adult education could lead to new
    guidance, regulation if necessary, and in the end, better
    trained miners.
        Third, there should be greater collaboration between OSHA
    and MSHA. There are some hazards that overlap between the two
    agencies. We have seen too many examples where OSHA and MSHA go
    their separate ways and do not work together. That should
    change.
        Finally, let me turn to what Congress could do. The Mine
    Act is a good law but it has a few key flaws which could be
    corrected. For example, MSHA should be given subpoena
    authority. That is enjoyed by OSHA and by other Federal
    agencies. MSHA needs that to conduct investigations.
        Second, there should be a better way to collect uncollected
    fines. We think that could be done through withdrawal orders,
    but MSHA would need legislative authority to do that.
        Finally, criminal penalties need to be increased. It is
    scandalous that the penalty for killing a miner through a
    willful violation of a standard is one year in prison. To give
    a counter example, the penalty for damaging a coral reef or for
    harassing a wild burro on Federal land is five years. What
    message does it send when the Federal Government values the
    serenity of a burro over the life of a miner.
        These problems and others could be corrected by H.R. 1926,
    the Robert C. Byrd Mine Safety Protection Act of 2015,
    introduced by Representative Scott, the Ranking Member of the
    full Committee, and co-sponsored by Ranking Member Wilson, and
    many others. We urge its passage.
        Thank you.
        [The statement of Mr. Wright follows:]

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        Chairman Walberg. Thank you. I now recognize for five
    minutes of testimony, Mr. Watzman.

     TESTIMONY OF BRUCE WATZMAN, SENIOR VICE PRESIDENT, REGULATORY
         AFFAIRS, NATIONAL MINING ASSOCIATION, WASHINGTON, D.C.

        Mr. Watzman. Thank you, Mr. Chairman, Ranking Member
    Wilson, and members of the subcommittee. I appreciate the
    opportunity to be here.
        In the time I have, I want to cover two areas, what we are
    doing voluntarily to drive safety performance improvement, and
    problems with MSHA that are impediments to improvement.
        In 2011, after having concluded that the current pace of
    safety performance was not acceptable, NMA initiated
    CORESafety, a first of its kind safety and health management
    system designed specifically for U.S. mining, to take a more
    aggressive approach to improve performance.
        At the heart of CORESafety is fatality prevention and risk
    management. CORESafety is not about saving miners after
    accidents. It is about identifying at risk conditions,
    practices, and behaviors that lead to accidents in order to
    prevent them, and it is making a difference.
        In our view, risk based safety and health management
    systems are more likely to move safety performance to the next
    level. Experience shows that safe behavior does not occur in a
    vacuum. It is shaped by leadership and culture. These are
    characteristics that are taught and nurtured, not legislated or
    regulated. They are at the heart of CORESafety.
        Beyond what the industry is doing voluntarily, we are long
    past the time of debating the need to reform MSHA, to modernize
    the agency in the manner in which it conducts its business.
        Despite what some believe, impact inspections, rules to
    live by, and pattern of violations will not get us to zero
    fatalities. MSHA enforcement initiatives by focusing on
    conditions represents a reactive approach to safety that has
    had and will continue to have limited access.
        We have an opportunity to drive further improvement but not
    in the enforcement environment that exists today. Today, the
    mining industry is undergoing fundamental change, but the
    agency is wedded to a model with diminishing returns. From 2010
    through the end of 2014, the number of operating mines has
    declined precipitously.
        Yet, during this period, MSHA's budget, including the
    request for this year, is at a 12 percent increase. The reduced
    number of mines provides an opportunity to re-evaluate how MSHA
    allocates its resources and how the resources are applied.
        MSHA remains a fix to a model where today it is not
    uncommon for multiple inspectors to be on site every day. This
    is unnecessary and counterproductive, and as one might inspect,
    enforcement leads to adjudication, and this is the second area
    in need of reform, the broken citation conference process.
        Another area in need of reform is MSHA's selective
    recognition of the incorporation of new technology. The Miner
    Act established within NIOSH the Office of Mine Safety and
    Health. The office is responsible for research, development,
    and testing of new technologies and equipment designed to
    enhance mine safety and health.
        While MSHA is not bound by NIOSH's recommendations, they in
    some respects have become the technical advisor to NIOSH. In
    this regard, we are concerned that MSHA in certain instances
    prematurely promulgates regulations that impose technology
    requirements in advance of NIOSH completing the necessary
    research.
        An example will illustrate this. On September 15 of this
    year, MSHA issued a proposed rule to require operators of
    underground coal mines to equip certain pieces of equipment
    with what is known as proximity detection technology. While
    proven on an earlier category of equipment, this technology
    suffers from interference problems on the category of equipment
    covered by this proposed rule.
        Despite this and despite the fact that NIOSH has not tested
    the technology, MSHA's proposed rule requires the wholesale
    application of this where practically every application is
    unique and most are untested.
        Furthermore, this structure of the rule creates a huge
    disincentive for operators to apply the technology ahead of the
    rule.
        Similarly, we continue to face problems relative to the new
    technology required by MSHA's final coal dust rule. The
    inability to differentiate between rock dust and coal dust
    particles gives rise to a conflict between the coal dust rule
    and the agency's enhanced rock dust requirements.
        Additionally, the difference in sample compliance
    determinations using the current sampler and the new sampler
    continues to raise concerns, especially as the February 2016
    date for the phase in of the second part of the rule looms.
        Finally, it is time for MSHA to adopt the voluntary
    protection program for mining. Some will take this to mean that
    we are advocating an end to what is commonly referred to as the
    4s and 2s, the statutory requirement for inspection of all
    mines.
        Let me be clear. That is not what we are advocating.
    Rather, a VPP would provide MSHA the ability to shift its focus
    of exemplary mines, which it would determine, from an
    enforcement to a compliance assistance approach.
        In closing, let me stress that to modernize and improve
    safety performance, we need to move beyond a model based
    strictly on enforcement. Enforcement is necessary, but we have
    to develop higher standards that engage employees and encourage
    cooperation.
        CORESafety and the VPP program are positive steps that
    would move the industry in that direction.
        Thank you.
        [The statement of Mr. Watzman follows:]

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        Chairman Walberg. Thank you. As I listened to each of you,
    it is interesting to think about the impact of mining. I jumped
    on a Great Lakes freighter at the Port of Monroe in my district
    this past Sunday night, watching the unloading of tons of coal
    into the hopper from a Great Lakes' 1,000-foot cargo ship
    headed up through the Detroit River, Lake Sinclair, Sinclair
    River, Lake Huron, St. Mary's River, to the Soo Locks.
        All along the way, I saw either piles of aggregates,
    metallic, non-metallic, piles for steel mills and power plants
    all along the way. All the results of the mining industry.
        Each of you represent portions of that that we want to make
    sure works, so thank you for your testimony.
        Let me welcome also to our Committee a distinguished
    colleague from Pennsylvania, Congressman Cartwright. Thank you
    for joining us. Without objection, Congressman Cartwright is
    permitted to participate in our hearing today. I certainly hear
    no objections. Also, it is a delight to welcome a good friend
    and colleague, Mr. Courtney, joining us today as well.
        I recognize myself now for five minutes of questioning. Mr.
    Watzman, on September 26, the Committee requested MSHA provide
    information related to the mandatory operation of continuous
    personal dust monitors--we have evidence of one here in the
    room--in light of the potential for a new rock dust composition
    to prevent CPDMs from accurately reading coal dust in the
    atmosphere.
        Just Monday of this week, we received a letter back from
    MSHA. I will place that letter into the record, without
    objection, hearing none.
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. MSHA states ``The concerns expressed in
    the letter are unfounded.'' Mr. Watzman, I know you received a
    similar letter this week. Do you agree with MSHA's assessment
    of CPDM as it relates to changes to rock dust?
        Mr. Watzman. We do not agree with the agency. We similarly
    have reached out to the agency to try to work cooperatively
    with them. We sought their participation in undertaking studies
    underground, looking at rock dust and coal dust, and the
    possible contamination of one by the other, and up to this
    point, the agency has not been willing to participate in a
    robust peer review study with all of the stakeholders.
        We think it is a problem. We think it is something that
    needs to be studied, and hopefully that will occur before the
    February implementation date of the second phase of the rule
    where the CPDM is required.
        Chairman Walberg. What might be the reason for a problem in
    participating in that study?
        Mr. Watzman. That is left best to be answered by MSHA. We
    do not know why. We are all seeking the same goal here and the
    same objective, and that is to protect miners, and to do it in
    an accurate manner. We do not know why MSHA has been resistant
    and not willing to participate with us.
        Chairman Walberg. Mr. Elliott, MSHA is a unique agency in
    that it is required to inspect all facilities under a
    regulatory arm, at least bi-annually. NSSGA members, your
    members, will see an MSHA inspector at least twice a year if
    not four times, if I am correct. As a safety and health
    professional, what do you think would improve the interaction
    between mine operators and MSHA?
        Mr. Elliott. That is a good question. When you look at the
    circumstances in many instances where an inspector comes on-
    site, they are looking--primarily focused on regulations and
    what violations they might be able to find.
        I think by opening up a broader dialogue, as Mr. Wright
    talked about, looking at the overall safety and health program
    at a mine, that inspector could get a better idea of what is
    going on in the process of managing safety every day.
        To your point about the inspector may come one, two days,
    three days, maybe even four days in a large mine, but the rest
    of the year, they are not there. They cannot regulate how those
    miners are going to act or the operator is going to act once
    they are not there.
        I think just opening up a broader dialogue about safety as
    a whole versus just regulatory enforcement would be of great
    benefit coming from both sides.
        Chairman Walberg. A true partnership.
        Mr. Elliott. Yes, sir.
        Chairman Walberg. Dr. Kohler, you have extensive experience
    in this field, especially in the area of safety. You have been
    following the CPDM rock dust debate, I am certain. Can you
    provide additional insight about the concerns each party is
    expressing?
        Dr. Kohler. Yes, I can. First, the use of real-time
    monitoring devices represents a great opportunity to deal with
    a lot of occupational health problems that we could not deal
    with before. The advent of a technology like PDM we viewed 10
    years ago, five years ago, as being the single greatest
    opportunity to eliminate black lung because for the first time
    people would know in real time what the exposure was and they
    would be able to address that exposure.
        More recently, that vision that I and others shared to do
    that has developed a problem, and that is a conflict with the
    rock dusting practice. A few years back in NIOSH's
    investigations they determined that the amount of rock dust
    being used was not protective and the amount needed to be
    increased.
        Further, they determined that the existing standard for
    rock dust and the definition for rock dust also were in need of
    modification to make it more protective.
        The end result of this is that there has been a tremendous
    increase in the amount of rock dusting and also rock dusting
    more extensively throughout the mine.
        A few years back we looked at rock dust as a nuisance and
    we never really thought a lot about the impact of rock dust on
    something like a respirable dust sampling program. It turns out
    rock dust is a confounder. Rock dust shows up on the cassette
    in the PDM the same as coal dust does, and effectively wipes
    out the ability to know what the coal dust exposure is, which
    is the bad actor we are trying to deal with.
        There are important reasons why this needs to be resolved
    and it is essential that we resolve it through additional
    testing/experimentation, and we make an informed decision about
    how to go forward with this important technology.
        Chairman Walberg. Thank you. My time is expired. I now
    recognize the Ranking Member, Ms. Wilson, for her five minutes.
        Ms. Wilson. I yield to Mr. Scott.
        Chairman Walberg. Mr. Scott.
        Mr. Scott. Thank you, Mr. Chairman. I appreciate the
    Ranking Member asking me to be recognized first.
        Mr. Sanders, the device beside you does real-time
    monitoring. How is that different from what is going on now and
    why is that important?
        Mr. Sanders. It is important, Mr. Scott; the real-time
    monitoring enables the miner and the mine management to know
    what the level of respirable dust is in the atmosphere where
    the miner is working.
        I am not an expert on these devices but this clips to the
    miner's clothing and it actually takes in a sample of air.
        Mr. Scott. How is that different from what is going on now?
        Mr. Sanders. What is going on now, the miner is generally
    not being able to get the real-time readout, that is, the
    information is collected but then it is later processed, and
    the information comes back days or even weeks later. The
    atmosphere is continually changing, they are moving forward or
    retreating in the mine. The information that comes back may
    indicate there was a violation but it does not help us to
    correct the problem to prevent the injuries.
        Mr. Scott. Thank you. Mr. Sanders, the black lung benefits
    program is an adversarial system. In your testimony you talk
    about the fact that workers are not well represented. What
    specific proposals would you have to level the playing field so
    that workers could be better represented in this adversarial
    proceeding?
        Mr. Sanders. I think the legislation that has been
    proposed, the Black Lung Benefits Improvement Act, has a very
    good basis. What I think are the problems are partly that
    attorneys are deterred by the complexity, the need to develop
    sophisticated medical evidence with a client who has no
    resources to pay for that, and the attorney cannot be paid for
    his services by his client. Under the Federal black lung
    program, the attorney that represents the claimant gets a fee
    if the claimant is awarded benefits and if the award is upheld
    through appeals so the award is final.
        In many of these cases, I would say the average is at least
    four years before you get to that point, and in many of the
    cases, they go on longer.
        There was an article recently in the Charleston Gazette
    about a case that went on for 21 years. The attorney
    representing the miner in that claim gets no compensation
    unless the miner wins and the award is upheld.
        The Black Lung Benefits Improvement Act created a way that
    an attorney could get a partial fee through the Trust Fund if
    they are successful at various stages in the proceedings, and
    then that payment from the Black Lung Disability Trust Fund
    would eventually be paid back by the operator if the award is
    upheld. It also provides for a payment for medical expenses
    incurred by the claimant to develop the kind of sophisticated
    evidence they need to prove their case.
        Mr. Scott. Speaking of medical evidence, the Department of
    Labor has decided not to accept medical evidence from a
    particular physician whose diagnoses turn out to be somewhat
    questionable. If someone has been disadvantaged by bogus
    medical evidence, what can be done or what should be done in
    those cases?
        Mr. Sanders. In the particular case you are talking about,
    the Department of Labor determined that a particular
    radiologist's readings where he never read an x-ray to show
    complicated pneumoconiosis or progressive massive fibrosis
    despite many cases where miners died and their autopsies proved
    they had that condition. They said that any claimant whose
    claim turned on that doctor's reports would get another shot at
    it. I think that was a good result.
        I think so much of this really is a battle of medical
    experts, so it is hard to know at what point does the expert
    simply become a fraud. It is hard to remedy that, other than
    good representation in the individual claim.
        Mr. Scott. Thank you. Mr. Wright, you indicated the
    importance that safety inspectors have subpoena power. Why is
    that important?
        Mr. Wright. Because in doing especially a complicated
    investigation like Upper Big Branch, they need to be able to
    compel testimony and they need to be able to compel the
    production of documents which may not be documents that are
    normally required under the Mine Act but which are nevertheless
    relevant.
        In the Upper Big Branch investigation in particular, since
    MSHA did not have subpoena authority, it had to work through
    the state agencies and really do its investigation through the
    state, which did have that subpoena power. That worked in West
    Virginia. It would not work in Nevada, it would not work in
    Wyoming, where there is no such state power.
        It makes a lot of sense to us that since OSHA has that kind
    of authority, since many other Federal agencies have that kind
    of authority--I think the example I used in my written
    testimony was the Federal agency charged with promoting the use
    of popcorn actually has subpoena authority. MSHA does not, and
    that should be corrected.
        Mr. Scott. Thank you.
        Chairman Walberg. I thank the gentleman. I recognize now
    the gentleman from Indiana, Mr. Rokita.
        Mr. Rokita. Thank you, Chairman, I appreciate you
    organizing this hearing. I appreciate the witnesses' testimony
    this morning.
        Mr. Sanders, are you familiar with the concept of a
    voluntary protection program as used in other agencies, not
    MSHA, but in other agencies?
        Mr. Sanders. No, I am not.
        Mr. Rokita. Thank you. Mr. Wright, are you familiar with
    the concept of a voluntary protection program as used in other
    agencies?
        Mr. Wright. Yes, very familiar.
        Mr. Rokita. Do you have positive things to say about such a
    program?
        Mr. Wright. I have positive and negative things.
        Mr. Rokita. Tell us the positive.
        Mr. Wright. I think a lot of companies want to be in the
    voluntary protection program in part because--this is OSHA
    now--in part because it frees them from routine OSHA
    inspections, but it also is kind of a badge of honor.
        Mr. Rokita. Creates good competition, higher level. I
    appreciate that.
        Mr. Wright. Yes. One of the things we like about it is that
    a company that is unionized cannot be in the VPP unless the
    union agrees. There is a pretty good check on that.
        Mr. Rokita. Right. Thank you, Mr. Wright. For the benefit
    of Mr. Sanders, I would like Mr. Watzman to go into some detail
    about the voluntary protection program. I have a bill that
    several of us in Congress are on that is trying to codify that
    as an eligible use across agencies, including MSHA.
        I would like to know in particular more detail on how you
    think MSHA and therefore miners would benefit from using a VPP.
        Mr. Watzman. Thank you for the question. We think it will
    work for MSHA. We think the experience in OSHA shows that it is
    transferrable to MSHA, and MSHA can structure the program, put
    in the proper safeguards, so that if a mine falls off the wall,
    as Mike talks about, and does not maintain a certain level of
    performance, they can be removed from the program.
        Most importantly, we think it will give MSHA the ability to
    refocus how it allocates its resources and conducts its work.
    Right now, the inspection regime is very rigid. The Mine Act
    uses the phrase ``in its entirety,'' and MSHA interprets ``in
    its entirety'' in the broadest sense possible.
        There are areas of mines where hazards present themselves.
    There are other areas of mines where those hazards do not
    exist. There are mines in this country that have existed for 30
    or 40 years or more, where you travel down entries where rocks
    do not move. They have not moved in 30 years. Yet, MSHA commits
    the same resources inspecting that portion of the mine that
    they do where the hazards present themselves.
        That is what we think that would afford the agency.
        Mr. Rokita. Thank you. In fact, the VPP companies that I
    have seen in different industries, to get to that standard, to
    be let go from some of the routine inspections that Mr. Wright
    kind of described, you have to get to even higher levels of
    compliance than you would normally. Is that correct?
        Mr. Watzman. That is exactly right.
        Mr. Rokita. Thank you. Mr. Elliott, you talked about a
    pattern of compliance program. Is this the same as VPP or is
    this something different, or just as useful or another tool
    that could be in MSHA's tool box?
        Mr. Elliott. I think to your point, it is very similar and
    it would be a situation where if the mine could demonstrate
    compliance, as the VPP points to, then I think the similarities
    would be very close.
        Mr. Rokita. Anything else about a pattern of compliance
    program that works at the state level somewhere or any kind of
    model we might study further?
        Mr. Elliott. My experience has been in a number of states
    that they are more focused on coal. The crushed stone, sand and
    gravel is not the coal industry. When we look at those agencies
    that may come in and are supportive and helpful--I think the
    MSHA Small Mines Office was an example of that, where they went
    into the small operators and tried to help them understand
    compliance and tell them the ways they could be more efficient
    if they were more compliant.
        I think those are the steps where MSHA was somewhat moving
    in that direction.
        Mr. Rokita. Thank you. I yield back.
        Chairman Walberg. I thank the gentleman. Now, reading my
    script here, I recognize my Ranking Member, Ms. Wilson.
        Ms. Wilson. Thank you, Chair. Mr. Sanders, I want to
    commend you for your 25 years of commitment to representing
    coal miners and their survivors attempting to obtain black lung
    benefits.
        Can you explain to us why it is often difficult for miners
    to find legal representation for black lung benefit cases? Why
    are we seeing a spike in new cases of black lung? How do you
    think the new respirable dust rule will affect this trend?
    People are dying.
        Mr. Sanders. Yes. I think it is difficult for miners and
    widows to find representation because of the complexity of the
    claims, the bureaucratic complexity, and sophistication of the
    medical evidence. We are talking about proving disability in a
    pulmonary system and cause of disability. Those are fairly
    complex questions and require--you really have to develop some
    knowledge about that.
        In addition, because the claimant cannot pay their
    attorney, many attorneys do not want to take this kind of work
    on with the expectation that they are not going to get paid
    until the award is final, which may be several years from now.
    There is other legal work that you can do that you can get paid
    up front or you are going to get your fee soon after.
        The amount of the fee is not that high. On an individual
    claim, it is based on your services. It is based on the amount
    of time you put into the case. It is not as if you are handling
    a large fee contingency type case.
        With regard to--did you ask why are we seeing an increased
    number of cases of black lung? There is some speculation about
    that. My own opinion is that modern mining methods using
    continuous mining machines generate a great deal of really fine
    particulate, really fine coal dust and rock dust.
        In eastern Kentucky, a lot of the coal seams that they are
    mining now are separated by bands of silica rock, so when a
    continuous miner operates, it cuts into both the coal and the
    rock, and the miners are exposed to that in the air.
        I think years ago in eastern Kentucky a lot of the mining
    was done shooting the coal, and they were not creating this
    fine particulate matter, mixed coal and rock. I think that is
    part of the problem.
        Another part of the problem could be miners are working
    longer shifts consecutively so there is not time for the dust
    to clear out of their lungs before they go back to work and are
    exposed again. That is another theory that is being looked at,
    I think.
        Was there a third part to your question, Ms. Wilson? I am
    sorry.
        Ms. Wilson. Yes, I wanted to know how the continuous
    personal dust monitors would help.
        Mr. Sanders. They could help a great deal because if you
    are using this and it has this digital readout area and you can
    look at that and you can see what the exposure is where you are
    working, then you can say I do not have good quality air,
    something needs to be done.
        Mines use environmental controls to get good quality air
    into the areas where the miners are working. It could be a
    matter of changing the way the curtains are aligned or
    increasing the amount of air flow into that particular area. It
    would reduce the miners' exposure to excess respirable dust
    immediately.
        Ms. Wilson. Mr. Watzman, you suggested that MSHA was not
    cooperating with the industry, and that you had some complaints
    about the continuous personal dust monitor and the possible
    interference caused by rock dust. Can you elaborate on that for
    me so I understand exactly what you mean?
        Mr. Watzman. Yes, I can. Let me state first that we were
    involved in the development of the CPDM. We support it. We
    supported the development. We support its application and use.
        We have to make sure that we are not substituting one
    problem for another. There is little confidence in the
    technology that is used today, the gravimetric sampler. We need
    to make sure the results from the CPDM are accurate, and that
    is what is lacking today.
        When we are sampling, rock dust becomes entrained in the
    air, and the dust sampler is picking up both rock dust and
    inert dust, and we did a search and could not find any health
    studies that indicated any adverse health outcomes related to
    rock dust exposure.
        Ms. Wilson. I do not want to run out of time. We have a
    letter from the Assistant Secretary of Labor for Mine Safety
    and Health, and he says he is working with you and in
    collaboration with the mining industry to conduct in-mine
    evaluations to identify and apply best practices for managing
    rock dusting and dust sampling.
        Mr. Watzman. We wish them well on that.
        Ms. Wilson. Let's hope that is taking place and you have
    the opportunity to experience that.
        Mr. Watzman. It may be taking place episodically at
    individual mines, but I can tell you that it is not taking
    place with the industry as a whole, to the degree that we
    conducted our own sampling and provided the results to the
    agency, and have yet to have a response from the agency in
    terms of meeting with us to discuss the results we presented.
        Chairman Walberg. The gentlelady's time is expired. We will
    move on.
        Ms. Wilson. We do have a response. Perhaps it just has not
    gotten to you.
        Chairman Walberg. We look forward that all responses go to
    the right sources and we take appropriate action and save
    miners and an industry as well.
        I now recognize the gentlelady from New York, Ms. Stefanik.
        Ms. Stefanik. Thank you, Mr. Chairman. This question is for
    Mr. Watzman and Dr. Kohler. When I visited Nyco Minerals in my
    District, which is one of the few mines in the world that
    produces wollastonite, a mineral with wide commercial use for
    ceramics, brakes, clutches, and plastics, it was clear to me
    that we need to do more to support the workers that help keep
    our nation's global competitive edge.
        What can be done in your opinion to strike that intelligent
    balance between protecting these workers and making sure we do
    not curb further economic growth by stifling these companies
    with litigious regulations? I will start with you, Mr. Watzman.
        Mr. Watzman. I think it goes back to what we have touched
    upon on so many occasions here, and that is creating a
    cooperative environment where we and the agency sit down and
    address problems rather than going to our respective corners.
        Mining is a very tough business and it is a very
    challenging business today. I look at the coal industry where
    the number of mines since 2011 has dropped by 18 percent. The
    number of mines in this country has dropped overall in that
    same period by 4 percent. Yet, MSHA is getting more resources
    and is refusing to change the way they conduct their business.
        I think we all honestly have to ask ourselves the question
    is the old model working. We have been under the Mine Act for
    46 years. We have made phenomenal progress as an industry
    working with our workforce, working with regulators, but after
    46 years of one model, should we not be better than we are?
        That is really what drove us to CORESafety, to look outside
    the box, to look for a different model that is not enforcement
    oriented, but is proactive rather than reactive, identifying
    risks at the outset and engineering those to the degree you can
    out of the work environment to better protect our workers.
        Ms. Stefanik. Dr. Kohler?
        Dr. Kohler. I would say two things. First of all, I think
    that sitting down and talking, a partnership, is critical. The
    toughest problems we faced in mine safety and health in the
    past 15 years were best solved when industry, organized labor,
    MSHA, NIOSH, manufacturers, all came together, rolled up their
    sleeves and tried to solve the problems. I think we have to
    have that kind of partnership.
        Secondly, I fully support this idea of health and safety
    management systems, whether we call it CORESafety, which the
    NMA has rolled out, or implementation of VPP, I understand
    there are good and bad parts, there are good and bad actors.
        It might be appropriate for an august body like the
    National Academies to actually resolve that question and
    provide guidance on how we can implement that fully.
        Ms. Stefanik. Thank you. My next question is for Mr.
    Elliott. Following up on concerns for maintaining worker
    safety, one mine safety group in my district raised concerns
    that workers have become increasingly concerned with being held
    personally liable for accidental non-compliance. It is my
    understanding and you shared today that over the last few
    years, the number of citations given at mines has increased
    greatly.
        How do we ensure worker safety and maintain an appropriate
    oversight system while also reforming the current challenges
    with this burdensome citation policy?
        Mr. Elliott. That is a heck of a question. If I could do
    that, I would probably be in Congress.
        Really, when we look at the circumstances around trying to
    look for people to come in this industry, it is tough today. It
    is hot, it is cold, it is dirty, it is muddy, all those things
    are involved.
        Like Mr. Watzman said about the approach of the agency,
    from maybe many, many years ago, when the Mine Act first took
    effect, there was methods that were successful at that time.
        I think today, we are in the twenty-first century, and we
    need to get greater efficiency to reach the root issues that
    are affecting the mining environment. Generations change. My
    generation is slowly but surely leaving the industry. Younger
    people are coming in who are more dynamic and more concerned
    about their safety.
        I think the agency has to look at ways to change to meet
    the changing demographics of mining.
        Ms. Stefanik. Thank you very much. I yield back.
        Chairman Walberg. I thank the gentlelady. I now recognize
    the gentleman from Wisconsin, Mr. Pocan.
        Mr. Pocan. Thank you, Mr. Chairman. Mr. Wright, I am going
    to go back to a question that Mr. Rokita asked you because I
    think you got cut off a little bit. You mentioned there were
    positives and negatives to the VPP. If there are any more
    positives you want to mention or any negatives, now is your
    chance.
        Mr. Wright. I would like to mention some of the negatives.
    The program started out, I think, very usefully, but in the
    last administration in particular, the metric for its success
    as the administration saw it was how many companies they could
    get into VPP. We saw company after company that really did not
    deserve to be there.
        One of the things that sort of taught us that was we saw a
    lot of fatalities happening in VPP companies. We went back and
    looked at what caused the fatality, and it was really in some
    cases non-compliance with standards, and in other places, it
    was a real failure to find and fix hazards that should have
    been obvious. Those companies should never have been in VPP.
        In addition, we think what drives companies into VPP--what
    drives voluntary compliance in general--is a strong enforcement
    program. We generally supported the program, but we did not
    support and would not support taking resources away from
    enforcement and putting them into VPP.
        Enforcement--there are just too many hazards out there. We
    see too many violations of law. Even with the 4s and 2s, we
    still see people dying in mines from hazards that went
    unrecognized, from hazards that may have been recognized by the
    company but they did nothing about it, and from things that may
    not be covered by the standards but are nevertheless very
    serious problems.
        Enforcement is what drives voluntary compliance. We cannot
    cut that back. VPP might be fine but not at the expense of a
    strong enforcement program.
        Mr. Pocan. Thank you. Mr. Watzman, you looked like you
    wanted to respond when Mr. Sanders was talking about why we are
    at levels back to the early 1970s with black lung. I just
    wanted to give you the chance. You had that look on your face.
        Mr. Watzman. Well, I appreciate that opportunity. I have
    said before, there is a problem in the industry with black
    lung, but it is not the problem that has been characterized in
    the public domain. It is not the problem that has been
    characterized by the agency. It is a geographic problem in a
    small area.
        What I do is I go back to the NIOSH x-ray surveillance
    program data. NIOSH conducts an x-ray surveillance program.
    They take their van around the country, and they examine miners
    who want to voluntarily participate. We wanted it to be
    mandatory, but it is still voluntary.
        When I look at Utah, for example, they conducted 500
    examinations. They expected the rate of black lung to be 4
    percent, the rate was zero. In Illinois, they expected it to be
    4 percent, it was one. In Indiana, they expected it to be 4
    percent, it was one. In Maryland, they expected it to be three,
    and it was zero.
        Mr. Pocan. Mr. Watzman, just for time reasons, that is the
    main point?
        Mr. Watzman. It is not the problem that has been
    characterized is the point I want to make.
        Mr. Pocan. I assume you would agree this is not a fair
    characterization either. In a recent phone call released during
    the criminal trial of former CEO of Massey Energy, Don
    Blankenship, he said that--these are his words--``Black lung is
    not an issue in this industry, that it is not worth the effort
    that they,'' meaning MSHA, ``puts into it.'' I assume you do
    not agree with that statement.
        Mr. Watzman. As I have said before, there is a problem but
    it is not the problem that has been characterized.
        Mr. Pocan. You do not agree with that statement?
        Mr. Watzman. I do not.
        Mr. Pocan. Thank you. Mr. Wright, in the remaining very
    little time I have left, there has been some talk about
    removing stone quarries from coverage under the Mine Act,
    putting them under OSHA. We had a hearing recently on OSHA,
    they can inspect one site every 140 years, if they get around
    to everything.
        Can you just talk a little bit about why that might be a
    problem?
        Mr. Wright. I will just give you one sentence, this is
    actually two sentences. Last year, we had 15 deaths. I am
    sorry. This year so far, we have had 15 deaths in metal and
    non-metal mines. Nine of them have been in stone, sand, and
    gravel.
        Mr. Pocan. Thank you. I yield back.
        Chairman Walberg. I thank the gentleman. I recognize the
    gentleman from Pennsylvania, Mr. Thompson.
        Mr. Thompson. Thank you, Chairman. I apologize for stepping
    out of the Committee meeting, but I was talking about coal
    while I was there.
        Chairman Walberg. Good for you.
        Mr. Thompson. And the export of some great coal that I
    think is mined in Mr. Cartwright's district that we export.
        Thanks for having this hearing. It is an incredibly
    important hearing for me personally. My grandfather was a coal
    miner, surface miner, but had black lung, diagnosed with black
    lung.
        I will just put a plug in for advocacy when folks are
    trying to advocate for whatever they are pursuing from a
    Federal perspective, use your members of Congress as advocates
    as well when you are looking at programs like that.
        Dr. Kohler, it is always great to have someone here from
    home, we are proud of your leadership and the work that you do
    at Penn State and for mining and preparing mining engineers.
        The first question is for you. I apologize if this has been
    covered already. It has to do with the use of the refuge
    alternatives in the event that a miner cannot leave in an
    emergency. These alternatives are supplied with food, water,
    breathable air, and have been required since 2009. Based on
    NIOSH concerns, MSHA has issued a request for information
    related to the use of refuge chambers.
        Can you discuss the concerns about refuge alternatives in
    underground coal mines?
        Dr. Kohler. Yes. The specific concern with respect to the
    mobile alternatives is in principle, it is a great idea, but
    given the spatial constraints in an underground coal mine,
    given the requirements, the time period in which they need to
    remain functional, given the complexity it takes to understand
    how to deploy these systems, and given a number of engineering
    problems that have surfaced over the last five or six years, it
    is clear that this technology, despite the best efforts of
    manufacturers, MSHA, NIOSH, and everyone else, is simply not
    making it. That is the reason why miners have no confidence in
    it at all.
        We have better alternatives out there. We need to get on
    with that. While it is true that the in-place shelter, for
    example, will not work in every single mine, and in some cases,
    there are distance concerns, it would serve a majority of
    miners, unlike the current technology.
        Mr. Thompson. Mining engineering obviously is a highly
    technical specialty and there is a great need for mining
    engineers in the United States. How can the industry and
    government attract students to that profession?
        Dr. Kohler. The greatest deterrent to students moving into
    the profession is the public image that the industry has. Most
    people do not realize how modern mining has become and in most
    regards, environmentally sustainable, responsible from a safety
    and health perspective. Most people do not understand the value
    of mine products in the economy. They do not understand that 15
    percent of our gross national product is tied to mining.
        To the extent that the industry can do a better job of
    marketing itself, and we like to say, we do not often have to
    convince the kids to come into mining, it is their mothers that
    present the real challenge.
        Mr. Thompson. Thank you. Mr. Watzman, over the last 10
    years, the number of coal mines operating in the country
    obviously has been sharply reduced. We have sadly watched that
    occur, as really the coal industry has been under attack.
        How many coal mine inspectors does MSHA currently employ,
    and what have the mine operators seen as a result of having
    fewer mines but the same number of inspectors.
        I would also like you to reflect on--I have an MSHA unit in
    my district. They are great people. I have gone early morning's
    before they go out, so it is a real early start. Some of the
    things I have heard from the individuals in the coal mines is
    some of the new ones coming on just do not have practical
    experience. They have a great education.
        Any reflection on how the experience as we have attrition
    have lost people who have actually worked in mining that have
    gone on to become inspectors, and now sometimes we do not have
    that practical experience today.
        Mr. Watzman. Let me start with your first question. I do
    not know the exact number, but I believe MSHA has approximately
    700, give or take a few, coal mine inspectors. That number has
    remained pretty constant for the last number of years, even
    though the number of coal mines has dropped precipitously.
        What that means is you have a greater presence of MSHA
    inspectors at the mines that remain operating in those
    districts. Let's be clear. When MSHA is on-site, that involves
    management as well. That takes away from their normal safety
    activities because they accompany MSHA as they go through the
    mines.
        There is a detrimental effect to a degree from the
    perspective of how companies manage safety at the operations.
        As I said in my testimony, it is not uncommon today in some
    of the mines, especially in Appalachian, to have four, five,
    six MSHA inspectors on-site every day the mine is operating.
    That is a dramatic change from what we saw in the past.
        You are right. As the generation has changed, inspectors
    who were better seasoned--this will change over time as this
    generation learns more about what they are doing--we are seeing
    things that were not cited in the past, that are being
    interpreted differently by this generation as they come out of
    the Academy. What they have learned is they have learned the
    book. That is what they follow. They follow 30 CFR. That is
    their gospel, if you will.
        We have seen that dynamic change. Hopefully, with time, as
    these individuals become more experienced, we will see the
    pendulum swing more back towards the middle.
        Chairman Walberg. I thank the gentleman. The gentleman's
    time has expired. I now recognize, staying with Pennsylvania,
    the gentleman from Pennsylvania, Mr. Cartwright.
        Mr. Cartwright. Thank you, Mr. Chairman. I thank you for
    having me here in the subcommittee. I also want to recognize
    Mr. Thompson, thank you for having me as well. Thank you also
    for sharing that, it was your grandfather that had black lung.
        I have an awful lot of black lung sufferers and recipients
    in my District. We can argue about the prevalence level, you
    know, the amount of black lung that is out there, but nobody
    would disagree that we want to make the process fair, and thank
    you for nodding in agreement, Mr. Watzman. I appreciate that.
        I am moving this microphone as far away as I can.
        Chairman Walberg. It may be black lung in the system. I am
    not sure.
        Mr. Cartwright. Mr. Sanders, a Pulitzer Prize winning
    investigation by the Center for Public Integrity found that
    doctors at Johns Hopkins who were hired to help coal companies
    fight black lung disease----
        Chairman Walberg. I wish we were more accommodating to a
    member who joins this Committee. My apologies. We are not
    taking your time away for that.
        Mr. Cartwright. Thank you. I appreciate that, Mr. Chairman.
    This Pulitzer Prize winning study found that doctors at Johns
    Hopkins in Baltimore who were hired to help coal companies
    fight against black lung claims have systematically
    misdiagnosed miners with black lung as having other non-
    compensable diseases, thus preventing those miners from
    accessing benefits.
        It is not a funny situation. The report found that more
    than 1,500 black lung claims since the year 2000 were handled--
    --
        Chairman Walberg. If you would like to join us up here, we
    have not had that problem. Let's try that. I know it can be
    irritating when you have that going in your own ear. This makes
    us wish for our new Committee chambers, right?
        Mr. Cartwright. My first day and I get to be on the upper
    dais, pretty good.
        Chairman Walberg. This is a great subcommittee.
        Mr. Cartwright. Thank you, Mr. Chair. We are talking about
    Johns Hopkins and how they had a doctor who misdiagnosed black
    lung disease. His name was Dr. Paul Wheeler. The investigation
    revealed that in more than 1,500 black lung claims since the
    year 2000, Wheeler had never once in more than 3,400 x-ray
    readings interpreted an x-ray as positive for complicated black
    lung, a condition that would presumptively entitle somebody to
    black lung benefits, but many other doctors in autopsy results
    revealed the presence of the disease.
        In response to this Pulitzer Prize winning investigation,
    Johns Hopkins suspended the program to their credit.
        My question to you is what should be done to remedy this
    situation for miners or their survivors? Mr. Sanders?
        Mr. Sanders. I think that the miners or survivors whose
    claims contained evidence from Dr. Wheeler or the other
    radiologists at Johns Hopkins should be reviewed. That is they
    should have an opportunity to have their case readjudicated
    without the questionable evidence.
        Mr. Cartwright. Even more troubling to me, Dr. Wheeler was
    certified by NIOSH to classify lung x-ray readings. He had to
    pass a rigorous test and become a so-called ``B Reader.'' You
    are familiar with that term?
        Mr. Sanders. Yes.
        Mr. Cartwright. He had to be re-tested every four years,
    and he apparently read the x-rays correctly on the NIOSH test,
    but he chose to under read x-rays in litigation. What should be
    done about that?
        Mr. Sanders. That is a very difficult question. NIOSH has
    operated the B Reader program as a way of classifying x-rays in
    what is called the ILO system for pneumoconiosis for some time.
    It is supposed to provide us with a good quality reading, not
    just for evidence purposes in black lung benefits claims, but
    actually it is useful for epidemiological studies.
        I think there needs to be some type of a quality assurance
    program, and NIOSH has to investigate questionable B Reader
    practices, and suspend or terminate the person's B Reader
    status as a result of their investigation. They have to have
    that authority.
        Mr. Cartwright. That makes sense. Mr. Sanders, this
    investigative series also revealed something that was even
    maybe more disappointing. It showed that coal company lawyers
    withheld medical evidence from claimants and their counsel
    where evidence proved that the miners had black lung.
        My question for you: is it true that coal companies have
    fought claims by cherry picking medical reports to support
    their defensive claims and withholding medical reports that
    would corroborate the presence of compensable black lung
    disease?
        Mr. Sanders. That is true. In the written materials, I
    discussed the case of Gary Fox, and if you look, it is a
    reported decision from the Court of Appeals. If you look at the
    facts of that case, it corroborates it, absolutely, not only
    did they withhold evidence from the adjudicator, but they
    cherry picked the evidence that they sent to pulmonary
    specialists. Then when they got the report from the pulmonary
    specialists, they submitted that as evidence. They really had
    skewed the record in Mr. Fox's case, and it has happened in
    other cases. Hopefully, it is not very common.
        Mr. Cartwright. Mr. Sanders, the GAO, the Government
    Accountability Office, has reported that many black lung
    claimants are without the necessary medical and legal resources
    to secure benefits, and you have discussed that here today.
        Given the adversarial nature of black lung proceedings, DOL
    says only 30 percent of miners have legal representative where
    they file a claim. The coal companies always have lawyers, do
    they not?
        Mr. Sanders. Yes, they do.
        Mr. Cartwright. Why are so few miners represented by
    counsel? Are there obstacles beyond the ones you have already
    discussed to securing legal representation?
        Mr. Sanders. You know, there is a limited number of
    attorneys frankly that are willing to take these kinds of cases
    on. I am pretty familiar with most of the ones that are in the
    region of the country that I live in. They are just not very
    many of us.
        Mr. Cartwright. Let me ask you this. I filed--I am the
    author last month of the Black Lung Benefits Improvement Act of
    2015, and I am proud to say I have original co-sponsors,
    Ranking Member Wilson and Representative Scott, on the bill.
    Are you familiar with that bill?
        Mr. Sanders. I am.
        Mr. Cartwright. Do you believe it remedies many of the
    situations you and I have been discussing here today?
        Mr. Sanders. I do. Earlier, we talked particularly about
    representation, the opportunity for an attorney if they are
    representing a claimant to get compensation for their time
    during the course of the adjudication. I think that would be
    very helpful.
        I think also the opportunity to get reimbursement for
    medical expenses so you could better develop the evidence that
    proved the claimant is entitled to black lung benefits. I think
    those are very important provisions.
        Mr. Cartwright. I thank Mr. Sanders, and thank you, Mr.
    Chairman. I am sorry I broke your PA system. I yield back.
        Chairman Walberg. We will find an attorney.
        Thank you for participating, and thank you to the panel,
    appreciate the work all of you do for the industry, for
    individuals, for the economy, and all that goes with it.
        Now we have time for closing, and I recognize the Ranking
    Member, Ms. Wilson, for her closing comments.
        Ms. Wilson. First of all, I would like to thank the
    witnesses for being here today. I would like to thank Chairman
    Walberg for holding this hearing. I appreciate the conversation
    from the members of the Committee.
        This is very emotional for me. I just cannot even imagine,
    in fact, I am planning a trip to a mine, because I want to see.
    I am from Miami, Florida. I have never experienced this.
        In the recent news, we have heard some questions about
    whether black lung disease is worth MSHA's efforts.
        One cannot possibly look at the steep rise in the rates of
    the disease and conclude black lung is not worth MSHA's
    efforts. One cannot hear Steve Day's heart breaking story and
    stories of other men and women who have suffered from this
    incurable disease and conclude black lung is not worth MSHA's
    efforts.
        One cannot think about Steve Day's widow and the thousands
    of widows she represents and conclude black lung is not worth
    MSHA's efforts.
        Mining is one of the most dangerous jobs in America, and
    the men and women who take on this work deserve MSHA's reasoned
    efforts to protect them against this horrible disease. Black
    lung disease is man-made, and we have the power to end it.
        More than a year after MSHA's new respirable dust standards
    went into effect, sampling results showed that coal operators
    are complying with the rule and miners are better protected.
    The upcoming phases of the rule do even more to protect miners.
        Most coal operators are deeply committed to the health of
    their employees and recognize their responsibility to care for
    those former employees with the disease. Unfortunately, some
    coal operators refuse to live up to that responsibility,
    choosing instead to use the medical and legal system to deny
    miners their deserved benefits.
        Steve Day's story brings to life the heart breaking
    consequences of unfair tactics designed to release coal mine
    operators of their responsibility to afflicted miners.
        I thank the witnesses again today for being here and
    helping us better understand the obstacles claimants face in
    securing their benefits. We have to do better.
        Mr. Chairman, I know that you are just as committed as I am
    to protecting miners' health. I hope we can find common ground
    and work to pass provisions in the Black Lung Benefits
    Improvement Act.
        I also want to thank the witnesses for their discussion on
    the legislative reforms needed to improve the Mine Act. As
    mentioned during our April meeting, I hope we can work together
    on needed improvements to the Mine Act. Thank you, and I yield
    back.
        Chairman Walberg. I thank the gentlelady. I appreciate
    those remarks. I think we do certainly agree that this is an
    industry across the board, whether it be coal mining--I had the
    privilege of going down into underground mining operators on
    several occasions, including once with Mr. Main. In fact, we
    drove past his house, boyhood home, on the way to that mine. We
    saw families who have had their lives affected in a positive
    way from having mining operations there for generations, and a
    continuous operation.
        We also have had the opportunity to meet miner families who
    have now lost their occupation. There is that challenge we have
    as well.
        I have had the opportunity to be in surface mining
    operations in North Dakota, in the Upper Peninsula of Michigan,
    with coal, with metallic/non-metallic mines, also to be under
    the City of Detroit in its salt mines, a totally different
    operation, with gas powered Gators running around in that mine,
    not like you would find in a coal mine.
        It is a diverse industry, and it is an industry that needs
    to work cooperatively with the regulator, but vice versa as
    well. There has to be a partnership. I do not know how in the
    world it can be moved forward in safety factors as well as the
    continuity needed for providing a secure industry without a
    partnership relationship, that a regulator looks to the best
    practices of the industry, and the industry makes sure its
    operations with as much as possible compliance from everyone in
    the industry, works together and to ferret out the bad actors,
    that thankfully are far and few between.
        When we look back at the impact of Upper Big Branch, for
    instance, and now the industry that has taken over that and is
    struggling with the economy because of the challenges brought
    on by a bad actor, we need to make sure that we do not just
    step in with regulation, but we do it right.
        That is what I think this testimony has given today from
    all sides of the ledger to help us as we move forward, but move
    forward with a purpose in mind, individuals, miners, families,
    and operators remain as the central focus for success in the
    industry, and ultimately success for what they produce in the
    lives of the rest of us.
        Thanks again for the Committee members, the staff, as well
    as those who have given testimony today for making this, I
    believe, a valuable hearing.
        There being no further agenda for the Committee, with the
    bit in hand, I declare it adjourned.
        [Additional submission by Mr. Watzman follows:]
        [Additional submission by Ms. Wilson follows:]

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        [Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

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