[Senate Hearing 109-411]
[From the U.S. Government Publishing Office]
S. Hrg. 109-411
NOMINATION OF EDWIN G. FOULKE, JR., AND RICHARD STICKLER
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
RICHARD STICKLER, OF WEST VIRGINIA, TO BE ASSISTANT SECRETARY OF LABOR
FOR MINE SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR; AND EDWIN G.
FOULKE, JR., OF SOUTH CAROLINA, TO BE ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR
__________
TUESDAY, JANUARY 31, 2006
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
MICHAEL B. ENZI, Wyoming, Chairman
JUDD GREGG, New Hampshire EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee TOM HARKIN, Iowa
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada PATTY MURRAY, Washington
ORRIN G. HATCH, Utah JACK REED, Rhode Island
JEFF SESSIONS, Alabama HILLARY RODHAM CLINTON, New York
PAT ROBERTS, Kansas
Katherine Brunett McGuire, Staff Director
J. Michael Myers, Minority Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, JANUARY 31, 2006
Page
Enzi, Hon. Michael B., Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Stickler, Richard, of West Virginia, to be Assistant Secretary of
Labor for Mine Safety and Health, U.S. Department of Labor; and
Edwin G. Foulke, Jr., of South Carolina, to be Assistant
Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor............................................ 5
Prepared statement of:
Mr. Foulke............................................... 8
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, opening statement............................... 10
Prepared statement........................................... 12
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
prepared statement............................................. 20
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
prepared statement............................................. 23
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared
statement...................................................... 30
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Letter sent to President Bush from Cecil E. Roberts, the
International President of the United Mine Workers of
America.................................................... 31
Letters of support from various organizations................ 35
Response to questions of Senator Enzi by Edwin G. Foulke, Jr. 42
Response to questions of Senator Isakson by Edwin G. Foulke,
Jr......................................................... 43
Response to questions of Senator Kennedy by Edwin G. Foulke,
Jr......................................................... 43
Response to question of Senator Bingaman by Edwin G. Foulke,
Jr......................................................... 46
Response to questions of Senator Murray by Edwin G. Foulke,
Jr......................................................... 46
Response to questions of Senator Enzi by Richard E. Stickler. 48
Response to question of Senator Isakson by Richard E.
Stickler................................................... 49
Response to questions of Senator Hatch by Richard E. Stickler 49
Response to questions of Senator Kennedy by Richard E.
Stickler................................................... 49
Response to questions of Senator Clinton by Richard E.
Stickler................................................... 52
Response to question of Senator Bingaman by Richard E.
Stickler................................................... 55
Response to questions of Senator Murray by Richard E.
Stickler................................................... 55
Questions of Senator Harkin for Richard E. Stickler.......... 57
Questions of Senator Harkin for Edwin G. Foulke, Jr.......... 58
(iii)
NOMINATION OF EDWIN G. FOULKE, JR., AND RICHARD STICKLER
----------
TUESDAY, JANUARY 31, 2006
U.S. Senate,
Committee on Health, Education, Labor and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 2:07 p.m., in
room SD-106, Dirksen Senate Office Building, Hon. Michael B.
Enzi (chairman of the committee) presiding.
Present: Senators Enzi, Isakson, DeWine, Kennedy, Murray,
Reed, and Clinton.
Opening Statement of Senator Enzi
The Chairman. I am going to call to order this hearing. We
will be joined shortly by others. Some of the policy luncheons
are finishing at about this point in time. I will go ahead and
do my opening statement, and by that time I am sure we will
have been joined by others, and that way we can stay close to
the schedule.
I would like to welcome everyone to the confirmation
hearing for Edwin Foulke to serve as Assistant Secretary of
Labor for Occupational Safety and Health, and for Richard
Stickler to serve as the Assistant Secretary of Labor for Mine
Safety and Health.
As we meet today, although the events of the recent past
will not be the subject of our hearing, it is impossible to
separate our focus on the issue of workplace and mine safety
from the tragic mine accidents in three mines in West Virginia
and Kentucky. For the past few weeks, the attention of the
Nation has been centered on these mines as we watched the
heroic efforts that were underway to try to save those who were
trapped far below the surface. We then shared in the sorrow
that the families felt as they received the news that their
loved ones had died before they were able to be rescued. Our
thoughts and prayers continue to be with all those whose lives
were forever changed by that tragedy.
The loss of those men in the darkness of that mine has
brought a great light to bear on the issue of mine safety and
the need for us to use every resource at our disposal to make
every workplace, especially our mines, safer.
A week ago last Friday, I traveled to West Virginia with
Senator Rockefeller to meet with the families of the Sago Mines
and to begin our committee's review of mine safety issues. I
was accompanied by our ranking member, Senator Kennedy; our
Employment and Workplace Safety Subcommittee chairman, Senator
Isakson; and although she was unable to come with us because of
an injury, Senator Murray, the ranking member of the Employment
and Workplace Safety Subcommittee sent her very capable staff.
Now, as we met with the families of those who had lost
husbands, sons, fathers, we were moved by their determination
and dedication to working with us to ensure that everything is
done to both prevent and better respond to accidents in the
future. Their firm resolve that a mining accident would never
leave another family without a father strengthened our own
commitment and increased our determination as a committee to
look for ways that we as legislators could be part of the
solution of this complex problem of workplace safety.
Now, I can only imagine the pain of losing a loved one
under circumstances like these, and we saw them trying to cope
with their loss. It quickly became apparent that words were
inadequate without a corresponding pledge to take action. Each
of us who traveled those miles to West Virginia in our own way
promised those families that the loss of their loved ones would
not be an end but the beginning of the work that has to be done
to address the issue of mining and workplace safety.
Today, this committee begins the task of fulfilling our own
responsibility for ensuring mine and workplace safety by
examining the plans of our Nation's principal workplace safety
officers for both the short-term and long-term change in our
mines and other dangerous work environments.
Now, our journey begins by ensuring that the Federal
positions charged with overseeing worker safety are filled with
accomplished, experienced, and visionary leaders. Fortunately,
we will not be alone in that effort. The accidents of the past
few weeks have brought together labor, industry, legislators,
and other stakeholders on the local level, the State level, and
the national level, all determined to make changes that are
needed to make our mines as safe as they can possibly be.
Now, coming from Wyoming, mining and worker safety are very
familiar to me. As a former mayor of Gillette, WY, I know well
that part of Wyoming we call ``the energy capital of the
world'' because of the deposits of coal and coalbed methane and
oil and uranium that are found there. Today, Wyoming is the
largest producer of coal in the Nation. We mine and ship an
average of 1 million tons of coal a day. Coal is vital to the
economy of my State and equally vital to the economy and energy
security of our country.
I am also familiar with workplace safety issues and
regulations from some of my employment before I ran for this
office. I was an accountant, and one of my clients suggested
that if they had a workplace safety program, they could save
money. The owner of the company said to me, ``Well, then, do
it.'' I said, ``Oh, no, no. I am the accountant. I am not a
safety person.'' He said, ``Well, you already know more about
it than anybody that works for me, so do it.'' And so I
organized a safety program and got to see the advantages of
having that happen and the difference that it can make and the
money that it can save.
Now, it is much better if it is done by true professionals,
and that is why we have true professionals before us today. But
my experience there taught me lessons I have never forgotten
about what does and does not work in an effort to make the
workplace safer. It also served to impress upon me the sincere
and genuine interest of both employers and employees in the
creation and the effort to maintain safe and healthful
workplace environments.
If history has taught us anything, it is that the advances
and innovations that have been made in other fields of science
and engineering are among the most effective means of
addressing workplace safety. That means we must investigate the
innovations that have been made by agencies like NASA and the
work being done by the Department of Homeland Security to
provide first responders to the scene of an accident with the
tools they need to immediately begin rescue efforts. At the
very least, it means using available technologies that may be
able to locate miners and send them communications. It may be
that we have the technology to do that and more, and we
certainly have the technological base upon which to build even
better tools for tomorrow.
A hearing has already been held in the Senate and
legislation has already been introduced on the State level to
promote the use of tracking devices to determine where miners
are to aid rescue efforts. In addition, there are already
personal emergency devices in use in some mines that make it
possible to deliver emergency text messages underground. In
1998, there was a mine fire in Utah, and the use of these
devices helped 45 miners escape to safety.
These devices are available now; however, we have to
improve their effectiveness so they can be used in more mines.
Then in the event of an accident, we would know exactly where
the miners are, and using these emergency devices, we could
communicate to them and let them know if there are any routes
available to them to bring them to a safe haven from which they
could be rescued.
It is unfortunate that it took the accidents at those mines
to focus our attention on these issues, but it is clear of the
need for better safety procedures that demand our action and
demand it now. It is also clear that providing and promoting
better safety procedures will produce better results for every
company in terms of production, morale, and the ability to more
effectively compete in the marketplace.
Last year, the total number of mine fatalities was the
lowest ever recorded. The injury rate in the mining industry
was also the lowest on record. Overall, that tells me that the
industry has made strides, improving and promoting workplace
safety. However, we can do better. We must look for new and
better ways to make mines and other hazardous workplaces safer
for all workers.
Legislation will surely play a role in this effort. As the
chairman of the committee, I intend to work with my committee
members, as well as other interested Senators and stakeholders,
to draft legislation very soon to provide and promote mine
safety based on the following principles:
First, we must implement laws and regulations that work in
the real world, not merely ones that score political points
inside the Beltway. In doing so, we must keep our approach to
workplace safety simple and easily understood by everyone
involved, including small businesses and their workers.
Second, we need to realize that workplace safety is a team
effort and it involves everyone on every level of the
organization. It even involves the families. There are no
adversaries in the effort to promote workplace safety. To
achieve success, we have to get everyone involved from the top
down and the bottom up. Of course, employers have to take an
active leadership role in the effort, that is, leading the best
way, by example, and it will ensure workers understand the
importance of safety by making it everyone's first and primary
responsibility.
Third, we must recognize that every worker must have every
possible tool at their disposal to increase their safety, and
that comes with the training and supervision necessary to
ensure that they are using the equipment properly and safely.
As in all things, workplace safety involves training, a
constant improving of skills, and a good basic education on
ways to avoid accidents and what to do if they occur.
Over the years, the Occupational Safety and Health Act has
helped in the promotion of workplace safety by reducing by 60
percent the number of workplace fatalities and decreasing by
more than 40 percent the rate for occupational illness and
injury. One of my primary goals upon coming to Congress was to
improve the effectiveness of Federal worker safety oversight
and not to create more bureaucracy and red tape.
Just before the holidays, I introduced three OSHA reform
bills, and each is cosponsored by five fellow members of the
HELP Committee. We believe that this legislation will improve
both OSHA and worker safety, and we look forward to moving them
this year.
At the Federal level, the Occupational Safety and Health
Administration and the Mine Safety and Health Administration
are the two bodies that Congress has charged with the primary
responsibility for ensuring and enhancing workplace safety. It
is essential to this mission that both agencies have
experienced and permanent leadership. At present, neither of
these important agencies has the benefit of such permanent
leadership.
While both agencies have been ably served by dedicated
individuals in acting capacities, the benefits of permanent
leadership cannot be understated. We now have the opportunity
to realize these benefits by the expeditious confirmation of
the two nominees appearing before this committee today. It is
an opportunity on which we must act now to provide the
leadership that is needed to begin the process of addressing
the issues of workplace safety that have come to light in the
past few weeks.
Equally essential to the permanency of the leadership at
these agencies is the experience of those who will lead them.
The committee nomination process is where we have the
opportunity to hear from the nominees and to review their
qualifications. I would urge my colleagues to wait until we
have had the chance to hear from the nominees and to review
their responses to our questions before they reach final
judgment.
We are fortunate to have two nominees who have spent their
entire working careers deeply involved and engaged in issues
that lie at the core of their respective agencies'
responsibilities. Richard Stickler, the nominee to head the
Mine Safety and Health Administration, has extensive experience
in the mining industry that spans over 37 years. Mr. Stickler
has worked as a miner, engineer, mine construction foreman,
mine shift foreman, superintendent, and manager. He left
private sector employment in 1997 to become the director of the
Pennsylvania Bureau of Deep Mine Safety, where he served for 6
years.
Now, like Mr. Stickler, Mr. Foulke's professional career
has been one of extensive involvement in workplace safety
issues. Mr. Foulke is an attorney who has specialized in the
practice of labor and employment law. He is a partner in the
firm of Jackson, Lewis, Schnitzler & Krupman, and a member of
the firm's OSHA practice group. In addition to his private
practice, Mr. Foulke served as a member of the Occupational
Safety and Health Review Commission for 6 years, 5 of which he
served as the chairman.
I look forward to hearing from both of you today.
At this point we will go ahead with the opening statements
by the two nominees. I want to thank both of you for attending.
I appreciate the cooperation you have given us on getting the
credentials together. I would mention that Mr. Foulke has
letters from Senator Graham and Senator DeMint, and he is
accompanied by his wife and his mother.
I would mention that Mr. Stickler has a letter of
recommendation from Governor Schweicker.
The Chairman. Mr. Stickler, would you like to make your
statement?
STATEMENTS OF RICHARD STICKLER, OF WEST VIRGINIA, TO BE
ASSISTANT SECRETARY OF LABOR FOR MINE SAFETY AND HEALTH, U.S.
DEPARTMENT OF LABOR; AND EDWIN G. FOULKE, JR., OF SOUTH
CAROLINA, TO BE ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL
SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR
Mr. Stickler. Mr. Chairman and members of the committee, I
would like to thank you for inviting me here today. I am
honored to be here, and I am humbled by the President's
confidence in me to lead this critical agency.
Mr. Chairman, you can read my resume to learn about my
qualifications for this job. I believe I have the background
and the experience to do this job.
But I sincerely welcome the opportunity to tell you why I
want to come out of retirement to accept this position, if
confirmed by the Senate.
Mr. Chairman, I have been an underground miner. I was in
the mines before the Federal Mine Safety and Health Act was
passed. I can attest to the fact that the mines are safer today
because of MSHA, and I am committed to this law.
I have also been a member of a mine rescue team. I have
participated in attempts to rescue miners.
In 1968, I was working underground in a mine adjacent to
the Farmington Mine when 78 miners lost their lives due to a
methane gas explosion. The sights and sounds of that experience
as well as other tragic accidents will be with me as long as I
live.
Mr. Chairman, Senator Kennedy, I know what it feels like to
lose friends and co-workers in tragic mine accidents. I have
great empathy for those at the Sago and Aracoma Mines who have
just recently felt that same loss. There is nothing worse.
As a mine superintendent and a State regulator, I know what
it is like to face the families.
Some people have asked me why I still want this job
considering the increased scrutiny that MSHA is under. They
know me well. They know I am not one for the spotlight.
But I want this job because I have ``been there.'' I
believe I have something positive to contribute to this agency
and its mission. I want nothing more than to see fatal
accidents and injuries continue to fall.
I had the opportunity over the course of my career to work
at almost every level in the mining industry. I have been a
rank-and-file miner, a foreman, and superintendent. I have
experience managing large and small mining operations,
including the largest underground coal mine in the Nation. I
have experience managing operations with various safety
challenges.
My passion for addressing these challenges by itself does
not solve safety problems. I follow an analytical approach to
identify the root causes of accidents. With others on my team,
I develop systematic solutions, set improvement goals, and
measure results.
These solutions to improve mine health and safety include
the implementation of innovative engineering, new technology,
safety training, and participative management processes. It
goes without saying that adherence to standards is also key.
I chose to leave the mining industry in 1997 to serve as
Director of the Pennsylvania Bureau of Deep Mine Safety, where
I served for 6 years. The decision to accept that position was
based on my desire to spend the remainder of my career focused
specifically on improving mine health and safety.
This is also my reason for accepting the President's
nomination to this critically important position at the
Department of Labor.
Throughout my career, I have witnessed legislative
improvements as well as increased funding for mine health and
safety, and I thank you for that. As a result, we have seen
tremendous improvement in mine health and safety, but the job
isn't done until we can prevent tragic accidents like Aracoma
and Sago Mines.
I feel indebted to the thousands of miners that I have
known, including my father and my grandfather. If I am
confirmed, I will do my best to honor the legacy of those who
have labored to provide fuel and natural resources for our
Nation. I would appreciate the chance to work with the
President, the Secretary of Labor, and the Congress to see mine
safety continue to improve in our Nation's mines.
Thank you.
The Chairman. Mr. Foulke.
Mr. Foulke. Thank you, Mr. Chairman and Senators of the
HELP Committee. I am deeply honored to appear before you
today----
The Chairman. I don't think your microphone is on. I am
sorry.
Mr. Foulke. The light is on.
The Chairman. Can you pull it a little closer to you, then?
Mr. Foulke. Can you hear me now?
The Chairman. Thank you. Yes.
Mr. Foulke. Thank you, Mr. Chairman. I am deeply honored to
appear before you today. I am also deeply honored to have been
nominated to be Assistant Secretary of Labor for Occupational
Safety and Health by President George Bush and to be supported
in my nomination by Secretary Elaine Chao. I am also grateful
to Senators Lindsey Graham and Jim DeMint for their kind
letters of support. I would also like to introduce to the
committee my wife, Wendy, and thank her publicly for being
supportive of my returning to Washington to serve our country.
Also, my mother is here, too. I think all of you know the
personal sacrifices that are associated with public service for
our spouses.
Permit me just a few minutes to take time to tell you about
myself. I attended college on a swimming scholarship at North
Carolina State University, where I graduated with honors in
political science. I graduated from Loyola University in 1978
and took my first job with a labor and employment law firm in
Greenville, SC. It was at this job that I began to work in the
area of occupational safety and health.
In October 1989, I was nominated by then-President George
Bush to be Chairman of the Occupational Safety and Health
Review Commission. I served on the Review Commission for a
little over 5 years in both the Bush and Clinton
administrations. The Review Commission is an excellent forum to
see firsthand that there are two sides to every issue and to
appreciate that the law must be fairly applied in all cases.
After leaving the Review Commission in 1995, I joined the
Jackson Lewis law firm and have headed up the firm's OSHA
practice group nationwide. I have been involved in all aspects
of the workplace safety and health law in my 20-plus years of
OSHA practice. I have worked with clients in a wide variety of
industries and handled OSHA matters in many States throughout
our great country. In my practice I have represented not only
large and medium-size companies, but also many small family-
operated businesses. Also, as Chairman of the Review
Commission, I was responsible for oversight of the day-to-day
operations of the agency.
I recognize the importance of this job to our Nation's
working men and women. Having been involved in a number of OSHA
fatality investigations, I am acutely aware of the devastating
effect such accidents have on families, as well as employers,
fellow workers, and the surrounding community. The impact of
these tragedies can never be minimized. For this reason,
injury, illness, and fatality prevention will continue to be
the top priority of OSHA if I am confirmed.
Having been involved in hundreds of OSHA inspections and
cases, I am aware of the issues OSHA personnel face in carrying
out their responsibilities. I realize the importance of
continuing to enhance the training and professionalism among
the compliance officers, and, if confirmed, I will look for
ways to encourage and reward such professionalism.
I have also heard the concerns of employers, especially
small employers, over their lack of knowledge of what is
expected of them. If confirmed, I will work to provide more
tools and assistance to all employers who lack the expertise
and the resources to have a comprehensive safety program. To
achieve this, I will continue to pursue the outreach,
education, and compliance assistance efforts instituted by my
predecessors. However, strong, fair, and effective enforcement
will still play a visible and active role in OSHA's overall
game plan, if I am confirmed.
Finally, I am aware of the desire of workers throughout our
country who want to work sure in the knowledge that they have a
safe and healthful job. If confirmed, I will devote the time
and energy to provide the assistance and information they need
in the language they understand to help them achieve this
desire.
In closing, if confirmed, I will work tirelessly to improve
the safety and health of all working individuals in America. I
want OSHA to expand its outreach and to partner with all
stakeholders working toward the common goal of substantially
reducing occupational injuries, illnesses, and fatalities. I
want to make a positive contribution in making OSHA ``the
resource'' for all employers' and workers' safety and health
needs. Finally, I want to ensure that OSHA is efficiently using
its resources to improve workplace safety and health and that
the programs and initiatives are yielding the maximum results
for workers and their employers alike.
I would like to thank the committee for allowing me this
time for these remarks, and I will be happy to answer any
questions the members of the committee may have.
[The prepared statement of Mr. Foulke follows:]
Prepared Statement of Edwin G. Foulke, Jr.
Mr. Chairman and Senators on the HELP Committee, I am deeply
honored to appear before you today. I am also deeply honored to have
been nominated to be Assistant Secretary of Labor for Occupational
Safety and Health by President Bush and to be supported in my
nomination by Secretary Elaine Chao. I am grateful to Senators Lindsey
Graham and Jim DeMint for their support. I also would like to introduce
to the committee my wife, Wendy, and to thank her publicly for being so
supportive of my returning to Washington to serve our country. All of
you know the personal sacrifices that are associated with public
service for our spouses.
Permit me to take just a few minutes to tell you about myself. I
grew up in Pennsylvania just outside Philadelphia. I attended college
on a swimming scholarship at North Carolina State University in Raleigh
where I graduated with honors in political science. I graduated from
Loyola University Law School in New Orleans in 1978 and took my first
job with a labor and employment law firm representing management in
Greenville, South Carolina. It was in this job that I began work in the
area of occupational safety and health law.
In October 1989, I was nominated by President George Herbert Walker
Bush to be Chairman of the Occupational Safety and Health Review
Commission. I served on the Review Commission for 5 years in both the
Bush and Clinton administrations. The Review Commission is an excellent
forum to see first hand that there are two sides to every issue and to
appreciate that the law must be fairly applied in all cases.
After leaving the Review Commission in 1995, I joined the Jackson
Lewis law firm and have headed up the firm's OSHA practice group
nationwide. I have been involved in all aspects of workplace safety and
health law in my 20 plus years of OSHA practice. I have worked for
clients in a wide variety of industries and have handled OSHA matters
in many States throughout our great country. As a result, I have worked
not only with Federal OSHA, but also with many officials in OSHA State
plans. In my practice, I have represented not only large and medium
size companies, but also many small family operated businesses. Because
of my extensive involvement in the OSHA area, I have come to know many
of the top OSHA officials at the Federal and State levels. Also, as
Chairman of the Review Commission, I was responsible for oversight of
the day-to-day operations of the agency. All this previous experience
and my background will allow me, if confirmed, to ``hit the ground
running'' at OSHA.
I recognize the importance of this job to our Nation's working men
and women. As head of OSHA, I understand that I will be ultimately
responsible for helping to ensure as much as possible that every
employee in the United States works in a safe and healthy workplace.
Because of my years of involvement in this area, I also believe that
health and safety in the workplace has positive economic value. Fewer
injuries and illnesses mean less loss work time and greater
productivity and ability to compete in the world marketplace.
Having been involved in numerous OSHA fatality investigations, I am
acutely aware of the devastating effects such accidents have on the
families, as well as employers, fellow workers, and the surrounding
community. The impact of these tragedies cannot be minimized. For this
reason, injury, illness and fatality prevention will continue to be the
top priority of OSHA if I am confirmed.
In working to achieve this goal, I believe communication and
outreach to all stakeholders in the process is essential. At the Review
Commission, I found that the more input I received, the better the
decisions I made. In addition, it is important to have measurements in
place to determine if progress and success is being made towards the
agency's goals. To do this, I will look to set goals for programs or
initiatives that not only are achievable, but also are measured
accurately. Also, OSHA must ensure that any program initiatives or
commitments it undertakes will be adequately funded.
I also understand the importance and the inter-dependence of the
three major responsibilities of the OSHA. These are: (1) standard
setting and revision, (2) compliance assistance, and (3) enforcement.
Each of these aspects contributes to the overall success of OSHA and
the achievement of OSHA's ultimate goal of having an effective safety
and health program in every worksite in the country.
Having been involved in hundreds of OSHA inspections and cases, I
am aware of the issues OSHA personnel face in carrying out their
responsibilities. I understand the challenges OSHA compliance officers
encounter in conducting workplace inspections. I realize the importance
of continuing to enhance the training and professionalism among the
compliance officers. If confirmed, I will look for ways to encourage
and reward such professionalism.
I also have heard the concerns of employers, especially small
employers, over their lack of knowledge of what is expected of them.
Based on my experience, the vast majority of employers want to have a
safe and healthful workplace, but do not have the understanding,
processes and/or tools to accomplish this. If confirmed, I will work to
provide more tools and assistance to all employers, but especially to
the small employers who lack the expertise and resources to have a
comprehensive safety program. To achieve this, I will continue to
pursue the outreach, education and compliance assistance efforts
instituted by my predecessors. This will include expanding partnership
and voluntary programs at the local, regional and national levels.
However, strong, fair and effective enforcement will still play a
visible and active role in OSHA's overall game plan.
Finally, I am aware of the desire of workers throughout our country
who want to work sure in the knowledge they have a safe and healthful
job. If confirmed, I will devote the time and energy to provide the
assistance and information they need and in a language they understand
to help them achieve that desire.
In closing, if confirmed, I will work tirelessly to improve the
safety and health of all working individuals in America. While OSHA has
done much to improve safety and health in the United States, there is
still much that can be accomplished. I want OSHA to expand its outreach
and to partner with all stakeholders working toward the common goal of
substantially reducing all occupational injuries, illnesses and
fatalities. I want to make a positive contribution in making OSHA ``the
resource'' that all employers, especially small employers, as well as
all working men and women, are encouraged to turn to, without fear, to
receive assistance, and for answers to all their safety and health
needs. The more successful we are, the greater will be the numbers of
employers and workers who recognize that instituting a comprehensive
safety and health program not only provides tangible benefits, but will
also assist those businesses to become more competitive at local,
national and global levels. Finally, I want to help ensure that OSHA is
effectively using its resources to improve workplace safety and health
and that its programs and initiatives are yielding the maximum results
for workers and their employers alike.
I thank the committee for allowing me this time to make these
remarks. I will be happy to answer any questions the members of the
committee may have.
The Chairman. I want to thank both of you for your
statements, and I will have Senator Kennedy do his opening
statement, and then we will proceed to questions for you. We
will do 5-minute questions per person, but we will go as many
rounds as anybody has questions to ask.
Senator Kennedy.
Opening Statement of Senator Kennedy
Senator Kennedy. Well, thank you very much, Mr. Chairman. I
want to acknowledge our strong leadership on our side by
Senator Murray, who is our ranking member on this committee,
works with Senator Isakson, has taken on the real
responsibility in terms of worker safety, employment, and
training programs. So I am grateful for all that she does in
helping us better understand and try to create an atmosphere
and a climate to make sure that we are going to have the safest
working atmosphere for workers in any place in the world. There
is no reason not to have it, and I see my colleague Senator
Reed here as well, so I thank him for his attendance and
involvement and their concern about this issue.
And I thank you, Mr. Chairman, and, Senator Isakson, I
thank you for bringing us all down to West Virginia just a few
weeks ago. I will say more about this in just a moment.
I was here when we passed the OSHA legislation, and what a
difference it made for workers. You know the difference: a 75-
percent reduction in terms of fatalities of workers, from 16
out of every 100,000 workers to 4 out of every 100,000 workers.
It has been dramatic. And that is when we had very, very tough
enforcement, and the savings of lives has just been profound,
and the reduction in terms of injuries. And it has taken a
variety--it takes tough enforcement, tough inspection, and also
issuing these various safety rules and regulations.
Last year, 2004, is the first year in 10 years that rate of
fatalities went up. Deaths went up. We want to make sure we
have someone that is going to really be serious about the
enforcement of OSHA.
This administration is the first since the OSHA Act was
passed to fail to issue a single major safety standard. We know
the difficulty. Some of these standards have taken 10, 12 years
to get out, and we know the power of the various industries.
But this is the first time that we haven't had a single major
safety standard. Maybe there is a good reason for it, but I
have not heard it. We have seen the deaths go up. We have seen
the failure to have an OSHA standard on this.
The administration has refused to take really any action on
ergonomic standards. I know they have a difference with the
previous administration, but we are well beyond the Clinton
administration. We have the Academy of Sciences that has done a
review about ergonomics. We had study after study done by the
Academy of Sciences. We know that the administration took issue
with what the Clinton administration did, but we do not have
any action by this administration on ergonomics. And with the
scientific record that we have, we want to know why. We want to
know why.
We also are going to come back to the questions about the
enforcement and the penalties. Every day workers are killed.
Their employers walk away with a slap on the wrist. These are
family members who are mourned and loved.
Mike Morrison was killed in a trench cave-in last year when
the employer ignored safety rules. The employer was fined
$21,000.
Les James was the second worker killed at his company. It
ended up paying only $2,700 in fines, and another worker died
on the job 2 years later.
So we want to know what you are going to do about those
kinds of circumstances. They are troublesome and bothersome. We
congratulate you on the nomination, but this is what you are
walking into.
I want to thank as well Mr. Stickler for his willingness to
take on this challenge. It brings us back, as the Chairman
remembers, Senator Isakson, I know Senator Murray did
everything she possibly could on relatively short notice. We
are grateful to the chairman for bringing us down to West
Virginia. And I for one will never forget--and I am sure the
chairman has mentioned this, and Senator Isakson as well--the
meeting with the families there. It was just one of the most
moving meetings that I have had ever--in public life or private
life--the couple of hours that we spent there. The frustration
of the various miners that wanted to go back into the mine,
risk their own lives to try and save others. The knowledge that
these miners had about the nature of the dangers that people
were facing and the suggestions that they had. The emotions
which they reflected in describing what they perceived to be
the last hours of their husbands, their loved ones who were in
that mine, in dark and getting darker and darker and the fear
that they had and their hopes and dreams of being able to see
their children.
I think all of us who went there made the commitment that
we were going to do everything we possibly can to make sure
that we were not going to have any more mine disasters and that
we were going to do everything that we possibly can. And I am
very hopeful and will do everything I can to make sure that
those that are doing the investigations of these tragedies are
going to listen to these families. They were a source of
enormous ideas, suggestions, recommendations, and insights that
should not and must not be lost.
As we were listening down there to a number of those people
speak about the new technologies, we were listening, well, if
we have new technologies that are going to be there,
electronics that are going to follow the men around, that may
be a danger in terms of sparks, and this may make it more
dangerous in the mine. If we put oxygen down in the mines, we
are creating perhaps a new kind of hazard down there if there
is going to be some fire. And we heard--at least I did--a
number of suggestions that were made about new technologies and
new ideas, and then we kept hearing about how we couldn't do
that, it just was too dangerous.
Well, yesterday, 72 miners in Canada were saved after a
mine fire because a Canadian law requires rescue chambers where
miners have 36 hours of breathable air, they have water, they
have light, and they have supplies. And every one of those
miners came out of a deep mine where there was fire, and every
one came out alive. And it is difficult for me to be able to
talk to those families and say how can they do it in Canada and
we can't do it here. And I have to be convinced that you have
the energy, the enthusiasm, the knowledge, and the willingness
to be able to do it here, Mr. Stickler, to vote for your
confirmation.
I thank the Chair. I appreciate it.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Senator Kennedy
Today we will hear from the nominees for two major
positions at the Department of Labor. The two people before us
today are nominated to positions of the highest trust and it is
our obligation to focus closely on whether they can fulfill
that trust. Richard Stickler has been nominated to head the
Mine Safety and Health Administration, and Edwin Foulke has
been nominated to head the Occupational Safety and Health
Administration.
The recent tragedies at Sago Mine and Alma Mine in West
Virginia remind us that the safety of the Nation's workers must
be paramount. Mining continues to be extremely hazardous--it
has consistently been the first or second most dangerous
industry in the country. This year we have had 17 mine
fatalities, 15 of them in coal mines. This is already over one-
quarter of the deaths that we saw during all of last year.
Our entire Nation joins their families and their
communities in mourning these fallen miners. Mr. Chairman, I
ask for permission that a complete list of the miners who were
killed at Sago and Alma mines be included in the record today.
We have a continuing obligation to do everything we can to
protect the safety of America's workers. It's obvious that we
are not meeting that obligation today. Whoever leads MSHA in
the future can and must do better.
Two weeks ago, Senator Rockefeller hosted a visit by our
committee to West Virginia. Chairman Enzi, Subcommittee
Chairman Isakson and I met with the family members of the
miners who died in that tragic accident and with coalminers; we
met with company representatives and talked with health and
safety experts. Each of us made a sincere commitment to
improving the Nation's mine safety laws.
Our committee will hold a hearing in early March to discuss
the initial findings of the investigation into the Sago Mine
disaster. I look forward to working with my colleagues to
develop a bipartisan bill to meet our obligations to the
Nation's miners.
These recent tragedies highlight the critical role played
by MSHA. Unfortunately, the administration has often given mine
safety short shrift, seeking to reduce the coal safety
enforcement budget in 4 of the last 5 years, and cutting nearly
200 positions from it.
We need to reverse this trend, and our Nation's coal miners
deserve a nominee who can do this. We need a person of vision,
who will be an aggressive leader in strengthening MSHA and
preventing future tragedies like the two we have already
experienced.
I'm concerned that Mr. Stickler may not be that person. He
is not someone with an extensive background in safety and
health issues. His record at the Pennsylvania Bureau of Deep
Mine Safety does not show an aggressive attempt to raise
standards--in fact, it seems at times he may have sought to
loosen them. Hopefully, we will learn more today about his
record and his views about the direction MSHA should take.
There are a number of key priorities that I believe any
leader of MSHA must address.
Obviously, the first priority will be the investigation of
the Sago Mine and Alma Mine disasters. These families must be
heard--they know a great deal when it comes to protecting
miners' safety. It is incredible to me that in accident
investigations, the company is allowed to be present, miners
are allowed a representative, but the family members of a miner
who has been killed have no voice. We must find a way to bring
their knowledge and experience into the process.
We also need to combine strong standards with advances in
technology. Techniques for extracting coal and metals from the
ground have improved immensely in recent years, but the
technology for miners' oxygen self-rescue units and
communications equipment is 30 years old.
I know that MSHA is collecting information on possible
technologies over the next 60 days. But collecting information
is not enough.
We already know of better communications and miner tracking
technology from Australia--it has been available in the United
States for several years, but only a handful of mines here in
the United States are using it, despite its proven ability to
help save miners' lives. And 72 workers at a mine in Canada
were saved yesterday because Canadian mines are required to
provide adequate stores of oxygen. We need to require that up-
to-date technology and resources be applied to every mine in
the United States.
We also need to see that every mine is adequately prepared
to respond to future emergencies. When miners are trapped
underground, every minute is precious. Yet our laws and
policies do not require mine rescue teams to be onsite. All too
often it takes hours for rescuers to reach a mine, and when
they do arrive, they may not be familiar with the layout of the
mine.
We also are losing experienced miners to work on these
teams, as the Pennsylvania Mine Safety Department identified
when Mr. Stickler was its leader. Yet, incredibly, in December
2002, MSHA withdrew an initiative to improve mine rescue
capabilities from its regulatory agenda.
A critical duty of the Assistant Secretary is to enforce
mine safety laws. Many of us are concerned that the current
system does not provide a significant deterrent to mine
operators who continually violate the law. Sago Mine had an
injury rate nearly three times that of the national average and
had been cited by MSHA for over 200 safety violations in 2005.
Nearly half of these were ``serious and substantial''--meaning
that the violations had the potential to lead to serious
injury. Eighteen of the violations were so serious that they
led to partial closures of parts of the mine.
I know that President Bush has proposed raising maximum
fines for the most flagrant violations from $60,000 to
$220,000. But the minimum fines are part of the problem--they
are so low as to be toothless. It is difficult to believe that
penalties lower than traffic tickets will deter companies that
make millions of dollars in profits each year.
All of these issues must be front and center for the future
leader of MSHA. Our Nation's miners and their families deserve
no less.
We will also hear today from Mr. Ed Foulke, the nominee to
head OSHA.
We have made major progress since OSHA was first created in
1974. The fatality rate has dropped by 75 percent, and injuries
have also been drastically reduced.
But we still have a long way to go. There are still too
many workers being injured on the job. In 2004, over 5,700
workers were killed and over 4 million workers were injured or
became ill because of their jobs. Most troubling, the rate of
worker deaths on the job increased in 2004, for the first time
in over 10 years.
This week we remembered the deaths of the 7 brave
astronauts--including Christa McAuliffe--who were killed as
they sought to do their job, to extend our research into
outerspace. The whole Nation mourned them.
Yet twice that many workers are killed in this country
every day. Most of their cases do not become news stories, but
that does not make their deaths any less tragic.
There is much that needs to be done to make the Nation's
workplaces safer. The focus is on mine safety today, but
workers in other industries also face serious risks, and the
head of OSHA has a heavy responsibility to protect them.
Several priorities are clear. OSHA must complete needed
safety rules. We know that strong safety standards save lives.
Its cotton dust standards saved hundreds of thousands of
textile industry workers from brown lung. Standards also save
employers money and increase productivity. OSHA's vinyl
chloride and cotton dust standards made industry more
productive and safer for workers.
But the Bush administration is the first since the act was
passed in 1974 that has failed to issue a single major safety
standard. A number of safety standards have been delayed for
years in the Department, some of which were already in final
form when President Bush took office, but still have not been
completed.
We're still waiting for a rule to see that employers
provide needed personal safety equipment, such as hard hats and
safety gloves.
Failing to ensure that workers have such equipment is a
particular burden for low-income workers. The Congressional
Hispanic Caucus has stressed that the lack of a rule hurts
Latino and immigrant workers. Such protections are clearly
overdue.
Our health and safety laws also need to keep up with
industry changes. We need a way to quickly and effectively
determine what exposure limits to toxic chemicals are safe for
workers. Mr. Foulke himself has testified before Congress, on
behalf of the Chamber of Commerce, about the need to set new
Permissible Exposure Limits, and I look forward to hearing from
him about what he would do to see that these protections are
updated.
Ergonomics is another priority, since it's the leading
health and safety issue facing workers today. Nearly 1.5
million workers suffered ergonomic injuries last year, and over
400,000 of them lost time away from work.
Employees need strong standards to protect them from these
painful and often crippling injuries. Yet this administration
has refused to issue such a rule, relying instead on a
``Comprehensive Plan'' to address ergonomics violations.
Since the announcement of its plan, however, the Department
has issued only three sets of final industry guidelines--which
are only voluntary and leave tens of millions of workers
uncovered. The Department has brought only 17 general duty
citations for ergonomics violations. These protections are far
from comprehensive. We must do more.
In addition, OSHA's actions should reflect a serious
commitment to protecting workers' safety. Unfortunately we see
too many examples of companies getting away with slaps on the
wrist. Companies are putting millions of workers at risk in
factories, construction sites, nursing homes, and many other
workplaces every day.
Civil penalties under the law have not been increased since
1990. Every day workers are killed on the job and their
employers walk away with a slap on the wrist.
Mike Morrison was killed in a trench cave-in last year. The
company had ignored required safety precautions and was fined
$21,000. Les James plunged to his death from a window-washing
job, and the company was fined only $2,700--even though another
worker had been killed on the job 4 years before. And
tragically, another worker at that company fell to his death 2
years later.
This is a chronic problem. A December 2005 investigation by
the Kansas City Star found that in accidents in the area in
which workers were injured or died, half of the fines paid by
employers were $3,000 or less. And in multiple cases where
workers were killed, OSHA reduced the seriousness of the
citation from ``willful'' to ``unclassified,'' and fines were
likewise reduced.
Criminal penalties are also weak. Killing a worker by
willfully violating the health safety laws is punishable by a
maximum of 6 months in jail--half the length of sentences
imposed for acts like harassing a wild burro. With these
inadequate penalties, far too many cases go unprosecuted.
Because this problem is systemic and gravely serious, I've
addressed it in legislation introduced last year. The
Protecting America's Workers Act will increase civil and
criminal penalties when workers are killed or seriously
injured. It will also give family members the right to
participate in investigations and to have a voice when OSHA
negotiates with employers about reducing or adjusting fines.
Finally, OSHA must do more to protect our Nation's most
vulnerable workers. Latino and immigrant workers are at greater
risk of occupational injury or illness, because they are
concentrated in some of the most dangerous jobs in the country,
including jobs in construction, sweatshops, and landscaping.
The promise of our health and safety laws is waiting to be
fulfilled. The best way for us to honor the Nation's dedicated
working men and women is to see that the full promise of these
laws becomes a genuine reality for every working family in
every community in America. I look forward today to hearing
from Mr. Foulke about what he will do to fulfill that trust.
Sago Miners
Thomas Anderson
Alva ``Marty'' Bennett
James Bennett
Jerry Groves
George Junior Hamner
Jesse Jones
Terry Helms
David Lewis
Martin Toler, Jr.
Fred Ware, Jr.
Jackie Weaver
Marshall Winans
Surviving Miner Randal McCloy, Jr.
Alma Miners
Don Bragg
Ellery Hatfield
The Chairman. Thank you. We will now go to the rounds of
questions, and I will lead off.
That truly was a moving day that we had down there, meeting
with the families, also meeting with the miners on the crew
that were able to get out, and talking to all of them about
what kinds of things could have made a difference, should have
made a difference.
Of course, one of the things that we can easily work on is
new technology, but one of the things that I was told was that
when we have new technology, it has to be approved by MSHA
before it can actually go into use. And so if we were to locate
some technology that was kind of fail-safe down in these mines,
underground mines, how long would it take MSHA to procedurally
approve it, do you think, Mr. Stickler?
Mr. Stickler. Senator, I am not familiar with the current
lag time on approving permissible equipment, but I would tell
you that I would do everything I possibly could to get it
approved and used in an expeditious manner.
The Chairman. Thank you. In reviewing your nearly 40-year
career, I did note that in addition to serving in the
supervisory and managerial positions, you also began your
career--and you mentioned this in your testimony, too--as a
coal miner, and then later was even a member of a mine rescue
team. And you served 6 years in the public sector as a
Government regulator with the Pennsylvania Bureau of Deep Mine
Safety.
Given this background, I was somewhat surprised by recent
criticism of your nomination to the effect that your experience
was somehow inadequate or that it suggested you would only
represent the interests of the mining industry, and I would
like to give you an opportunity to respond to those claims.
Mr. Stickler. Well, I think my experience is in the record
and speaks for itself as far as the positions I have held, the
jobs I have done, and the education and knowledge that I have.
But as far as enforcement of the mine safety laws, I think
a good example is the performance that I had in the State of
Pennsylvania. During the 6 years that I was director of the
Pennsylvania Bureau of Deep Mine Safety, the enforcement
actions were trending up. In other words, they were higher the
year I left than the year that I took the job.
The Chairman. Thank you.
Mr. Foulke, the biggest challenges for OSHA, as you know
from our discussions, workplace safety is a very important
issue to me and one which I have been involved in for much of
my career, and you have as well. Certainly much progress has
been made, but I believe we can do better.
What do you see as the biggest challenges for reducing
workplace injuries and fatalities? And how could OSHA address
them under your leadership?
Mr. Foulke. Senator, I think getting the information and
the tools to small employers, particularly, who don't have the
resources or the personnel to have an effective safety and
health compliance program, I think if OSHA can provide those
tools and work to get that information to the small
businesses--because, unfortunately, a lot of small businesses
as a general rule don't even belong to any type of employer
organization or association, so they really don't have the
resources from there. So if somehow OSHA can provide those
resources and tools to be able to have an effective compliance
program and to understand really what standards are applicable
to them, what best practices are out there for their particular
industry, those are the type of things that I think if we can
get that information to them, it is going to help them put
together a comprehensive safety and health program and thus
help reduce their injury and illness rates and hopefully avoid
any type of fatalities at their facilities.
The Chairman. Thank you.
Back to you, Mr. Stickler. I know that you served as a
member of a mine rescue team--I just mentioned it a few moments
ago--and you played a successful central role in the rescue of
the nine trapped miners at the Quecreek Mine. That was in
Pennsylvania. With your background, could you share your views
about how rescue operations are currently conducted and whether
these practices or procedures should be reviewed or changed?
Mr. Stickler. My experience for many years in mine rescue
has given me knowledge about the practice and the process, and
it is a team effort. It is a team, and I was a Pennsylvania
State representative on that team in the command center. Also
in the command center, there is a representative of the mine
operator. If it is a unionized mine, there will be a
representative of the employees and a representative of the
Federal agencies.
So that is a team that works to plan the strategy for the
rescue operation. They develop the plans. The plans in the
cases that I have been involved in are reduced to writing, and
all of the parties in the command center sign that agreement
before you move forward.
But the primary responsibility of the command center is to
manage the overall rescue activity, and certainly in my
experience at Quecreek, we had over 700 people involved,
volunteers mostly, in that rescue activity. And we found it
best to try not to micromanage but to delegate a lot of things
and provide input to different experts to the command center
before we made decisions.
The Chairman. Thank you. My time has expired.
Senator Kennedy.
Senator Kennedy. Why don't we go to Senator Murray, who is
the ranking member of the subcommittee. I would let her
question first, and then I would follow when it is my turn.
Senator Murray. Well, thank you, Mr. Chairman, for having
this extremely important hearing, and thank you both for being
here today. We are very interested in your answers. I know I
will have more questions to submit that I will not be able to
ask today, but it is terribly important that both of you
recognize that the lives and the health of thousands and
thousands and thousands of Americans will be in your hands, and
the philosophy that you direct these departments and agencies
with. I certainly think the mining accident made all of us much
more aware that what we enact in terms of regulations and how
we enforce those and whether they are voluntary can make the
difference in whether or not someone's life is saved or not. So
both of you are potentially heading up agencies that all of us
are really looking to, to see where they go from here.
I echo the words of Senator Kennedy, Mr. Stickler, and I
know you are an honorable man. I think I want to hear from you
where you are going to fall when it comes down to enforcing
these regulations. I know West Virginia enacted very quickly a
package of mine safety reforms, and I want to know from you,
Are you going to move forward quickly in that direction, or are
we going to hear more of the voluntary private partnership
philosophy of they will do the right thing if we just sit back
and let them? Or do you believe that we should move forward
quickly with new mine safety provisions?
Mr. Stickler. Well, I am aware that MSHA has already sent
out the notice for information regarding technology for mine
rescue or rescue devices or new technology in general. And if I
am confirmed, I would look forward to reviewing the record of
the information that comes in.
Senator Murray. Do you see yourself coming back and
encouraging us to move forward quickly on regulations to make
sure that this does not happen again?
Mr. Stickler. I think whatever it will take to prevent
these kind of tragic accidents is what I will pursue, the best
of my ability to put those in place.
Senator Murray. We do not know you well. Are you a fast-
acting, emphatic person? Or are you a person who sits back and
looks at study after study?
Mr. Stickler. Well, I am an engineer, I am analytical, but
I don't think I have ever had paralysis from analysis. I try to
get to the important points in my analysis and make appropriate
decisions, and certainly the many years that I have been a
manager requires somebody that can make decisions quickly.
Senator Murray. You have a lot of background and
experience. Do we need to update the laws that are out there?
Mr. Stickler. The Federal mine health and safety laws?
Senator Murray. Yes.
Mr. Stickler. I think generally the laws are adequate.
Since 1977, I have reviewed thousands of mine accidents and
doing accident data analysis, and in the vast majority of the
cases, the accidents could have been prevented had the law been
complied with.
Senator Murray. Do you think that was the case recently in
the mining accidents?
Mr. Stickler. Well, that accident investigation has not
concluded, and the only information I have about it is what I
have seen in the news media, and some of that may not be
correct. But my experience has been that it is very important
to complete a thorough investigation, collect all of the facts,
and analyze those to determine the root cause. Once you have
the root cause identified, then it is not that difficult to
determine what corrective action should be taken.
Senator Murray. OK. Thank you. I think that answers my
question, and I just have a minute left, and I do want to
direct a question to Mr. Foulke.
I think you know that when OSHA was chartered, it was to
assure, insofar as possible, every working man and woman in the
Nation safe and healthful working conditions. And I just have
to say that, looking at your resume and knowing that you come
from a law firm that defends corporate clients against workers,
causes me concern as to which side you are going to be on. And
so I will be listening to you, the answers to your questions as
to whether you are going to be advocating for workers. If you
could just comment real quickly, and then I have a question on
asbestos I want to ask.
Mr. Foulke. Well, Senator Murray, I would say that my
practice, especially through the Review Commission and then
since then with my current law firm, you know, has been focused
on safety and health, and that I have worked with clients not
only to abate their problems, the citations that they have
received, but also to work with them to enhance their safety
and health programs. So I think my----
Senator Murray. Do you think it should be voluntary, or do
you think that we need mandates?
Mr. Foulke. Well, Senator, I think you need both, to tell
you the truth. The act itself was set up and had a strong
enforcement provision in the act. And so enforcement clearly is
a tool that OSHA has to have, utilizing to ensure that workers
are protected. But, also, we have to have, I think, the
compliance outreach to assist employers to have programs in
place, because, really, when you look at it, enforcement in the
long run normally deals with after-the-fact when there has been
some violation or some problem has occurred.
Our goal should be to prevent any injuries and illnesses in
the future, and so I think you work with the enforcement but
also have the compliance assistance program to assist in
getting those programs in place that we never have that
problem.
Senator Murray. Mr. Chairman, if you will indulge me just
one question on asbestos, and I would like to submit my other
questions for the record. I have done a great deal of work in
the U.S. Senate on trying to ban the production and importation
of asbestos in this country and have seen the devastating
impacts. As we all know, we are now struggling with how to pay
for it. This country still allows the use of asbestos in the
industry. Do you think that OSHA should propose a ban on the
use of asbestos in the United States?
Mr. Foulke. Well, Senator, I look at it from an OSHA
perspective. We do have our asbestos standard in place, and I
think that as long as we are assuring that that standard is
being enforced, that employees and workers will not be exposed
to asbestos.
Senator Murray. So you think it is okay to have it here as
long as we are just watching our workers?
Mr. Foulke. It is my understanding that asbestos was no
longer being utilized.
Senator Murray. Asbestos is being used in this country
today.
Mr. Foulke. Well, on that issue, if the Congress was going
to be promulgating some type of standard or some type of
regulation, I would be happy to work with you on that and
provide input.
Senator Murray. Well, I will submit a number of questions
on the record. Asbestos still is imported and used in a number
of products in this country, including brakes, and we are
trying to deal with the health outcomes of that exposure. And
it seems to me the first thing we should do is ban the use of
it, and I will submit a number of questions for the record on
that issue, and several others, Mr. Chairman.
[The prepared statement of Senator Murray follows:]
Prepared Statement of Senator Murray
Mr. Chairman, thank you for calling this confirmation
hearing to review the qualifications of the President's
nominees to head the Mine Safety and Health Administration
(MSHA) and the Occupational Safety and Health Administration
(OSHA).
The recent mining disasters in West Virginia should serve
as a stark warning to all of us that we need to do more to
protect our workers on the job. MSHA and OSHA should stand at
the forefront of efforts to protect workers through new
technology and new regulations.
Instead, we have seen this administration's industry-
dominated political appointees remove numerous critical health
and safety regulations from their safety agenda.
And today it would appear we are being offered more of the
same. While I am sure Mr. Stickler and Mr. Foulke are honorable
men, their professional backgrounds give me pause. I wonder
whether a coal company executive like Mr. Stickler will
continue MSHA's policy of entering into voluntary partnerships
with his former industry colleagues, while failing to move
forward on important technological and other mine safety
improvements.
Under his industry predecessor, MSHA pulled 18 health and
safety regulations from its agenda, reduced fines, and sought
budget cuts and staff reductions at the agency. In his
testimony Mr. Stickler said the Mine Act was working just fine,
yet we know that over the last 5 years there have been over 400
fires in underground coal mines, often ignited because of
accumulations of coal dust. A regulation to reduce coal dust
was pulled from MSHA's regulatory agenda in 2002.
For the last several years, Mr. Foulke has worked for
Jackson-Lewis, which is widely known as one of the most anti-
worker law firms in the country. A lawyer with a background of
defending his corporate clients against workers who have been
injured on the job does not strike me as the best hope for
improving worker safety.
And it certainly does not square with the original language
Congress used when chartering OSHA--``to assure so far as
possible every working man and woman in the Nation safe and
healthful working conditions.''
Mr. Chairman these are the only two agencies in the Federal
Government which are explicitly chartered to protect workers on
the job. Given their professional backgrounds, I am not at all
sure these two nominees are the best candidates to fill these
two critically important jobs. The President should go back to
the drawing board and nominate individuals with health and
safety backgrounds that will put the interests of workers first
and foremost on their agendas.
We owe that to the families of the miners in West Virginia,
as well as the thousands of other workers around the country
who are injured on the job every year.
The Chairman. Thank you.
Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman.
For my edification, if there was an organizational chart of
OSHA, Mr. Foulke, are you over Mr. Stickler, or are you all
independent of one another?
Mr. Foulke. On an organizational chart, we are side by side
working to protect workers' safety and health.
Senator Isakson. OK. So you don't have veto power over him?
Mr. Foulke. No. He looks a little bit bigger than me, too.
Senator Isakson. OK. Well, then I will direct all these
questions directly to Mr. Stickler.
Mr. Stickler, I will reserve judgment on Sago until the
investigation is done. They say the most dangerous person is
Washington is a member of the Senate that just got home from a
fact-finding mission, and I fall in that category. I have
learned more about mining in the last 2 weeks than I ever
thought I would know. I traveled with Senator Kennedy, Senator
Enzi, and Senator Rockefeller to West Virginia. But I will
reserve my judgment on that incident until all the facts are in
from the investigation.
However, I want to talk about things we need to do when
accidents occur that could save the lives of miners that do not
exist now in the mines. It became apparently clear to me, in
talking to the company, the miners in general, and the
families, that the absence and inability of a mechanism to
communicate from the surface into the mine at the time of an
accident is the single most critical deterrent to safe rescue.
Would you agree with that, or am I off base?
Mr. Stickler. I agree with that. Yes, absolutely.
Senator Isakson. And then, second, it appeared to me that
if you had that communication and that ability reliably, the
second most important thing would be to be able to have some
accessibility to oxygen beyond the 1 hour that the miners carry
with them. Would that be kind of second?
Mr. Stickler. Yes, Senator. I have been involved in
developing emergency plans for mines, and in those plans of the
mines that I operated, I include spare units at the worksite as
well as positioned units strategically along the escape route
coming out of the mine. So, absolutely, you need enough oxygen
for each miner to assure that he will have a supply to come
from his work area to the surface.
Senator Isakson. I will be conducting, along with Senator
Murray, a hearing on the 15th--really, a roundtable on the 15th
of February regarding new technologies or the need for new
technologies to deal with mine accidents, to deal with mining
in general, mine accidents in particular, and we will be
looking for those things from around the world, whether it is
whatever they use in New Zealand or Canada or in some mines in
the United States. But one thing I have become aware of, it
appears that there has not been a catalyst for innovation,
either monetarily or from miners or from mine owners or from
MSHA. So I have a question for you.
Do you think MSHA, as well as being a regulatory and
enforcement agency, could find a way to be a catalyst for
invention--and you are an engineer--for example, in the
communication device in some way?
Mr. Stickler. Well, I believe so, and if I am confirmed, I
would work very closely with NIOSH. During my 6 years that I
served as Director of Pennsylvania Bureau of Deep Mine Safety,
I worked with NIOSH on a lot of their research, particularly in
the area of mine rescue. Pennsylvania mine rescue teams were
trained at NIOSH facilities, the underground coal mine research
in Pittsburgh and the stone mine down in Lake Lynn in the
southwestern part of Pennsylvania. And as an exchange, we
tested the latest technology and infrared heat-sensing
equipment and communication systems and so forth and so on. And
I would look forward to doing everything I can to advance
technology. I think technology has done more to improve health
and safety during my career than any other area.
Senator Isakson. Well, I appreciate your answer because, as
I said, I am going to hold my comments on the accident at Sago
until the investigation is done. I think that is really the way
you ought to do that. However, I sat with Senator Kennedy and
Senator Enzi and Senator Rockefeller with those families. I
noticed in your testimony you had a sentence in there that you
yourself have been one to have to visit with families that had
losses in the mines. And based on that day of testimony and
talking to everybody, it was patently clear to me that the lack
or the absence of innovation in communication and in oxygen
accessibility is the single biggest difficulty in the case of
the Sago Mine, one or both of those could have in combination
allowed us to save those miners.
I sat next to a young lady who handed me this picture. This
is a picture of Junior Hamner, who died on January 2nd in that
mine. He is her father. This is a picture of him and the eight-
point buck that he shot the day after Christmas in West
Virginia. And that young lady told me, she said, ``Mr. Isakson,
just promise me this: that my Daddy's legacy will be that
others won't die in the mines.''
I think every one of us on this committee wants to work
with you, and in turn, OSHA and the Secretary, to do everything
we can to do that. And I have a suspicion that the most
important thing we can do is be a catalyst to make the
innovation that lacks today accelerate at such a rate that
miners in mines in this country, and, for that matter, around
the world, have an ability to communicate with the surface
reliably that does not depend on wires or hardlines; and,
second, had accessibility to oxygen so that if there is an
accident and they reach it with their 1-hour device, they can
maintain themselves until CO2 levels, methane
levels, or other levels are down so the rescue teams can go in.
And if you are confirmed--and I am delighted that you have
the breadth of experience you do in mining--it is my sincere
hope you will work with us to be a catalytic agency for that
type of completion of the technology that we need so this does
not ever happen again.
And that was not a question, Mr. Chairman, but that was a
statement, and I appreciate your time.
[The prepared statement of Senator Isakson follows:]
Prepared Statement of Senator Isakson
I am pleased to welcome Mr. Richard Stickler and Mr. Edwin
Foulke to today's hearing. As Chairman of the Subcommittee on
Employment and Workplace Safety, I am eager to work with both
of you upon your confirmations.
I come to this hearing today with a heavy heart. It was
just a few days ago that I joined the chairman and ranking
member of this committee, as well as Senator Jay Rockefeller on
a visit to Upshur County, West Virginia. It was, to say the
very least, one of the most moving experiences of my life.
Before we left, Senator Rockefeller, my good friend and
colleague, told me I'd feel right at home with the people of
his State. Indeed I did. I was honored and humbled to join my
colleagues in speaking to the devoted families of the miners
who perished in the Sago Mine tragedy. We listened intently for
over 2 hours while these brave men and women shared their pain,
their grief, and their frustration. But they also shared a
hope. Their hope was that future miners will never suffer like
their loved ones did, sitting in the dark, slowly suffocating
to death on poisonous gases. One family even gave me a picture
of one of the deceased miners, which I will keep with me as a
constant reminder of our mission to ensure miners' safety.
The trip, however, was every bit as educational as it was
emotional. We heard of the need for better communications
between miners and those on the surface. We learned of the
possibility that technology will allow miners to carry more
oxygen in case of emergency. We discussed ways that mine rescue
teams could be on the scene at mine emergencies more
expediently.
All of these are important points of discussion, and I plan
to work with the chairman, ranking member and all the members
of this committee on ways we can be a catalyst for positive
change in the area of mine safety.
Mr. Stickler comes to us with a long and distinguished
history of working to ensure the safety of mines. For over 30
years, Mr. Stickler has worked deep in the mines of Appalachia.
During that time, he has held a number of positions including
manager, superintendent and shift foreman. More recently, he
spent 6 years as director of Pennsylvania's Bureau of Deep Mine
Safety. Note I said he worked in the mines . . . not in an
office in New York or Philadelphia. Mr. Stickler is a man who
for most of his adult life has wiped the coal dust off his
boots every night. This is the man we need leading the Mine
Safety and Health Administration.
If and when confirmed, Mr. Stickler will head an active,
effective, and well-funded Federal agency. Total MSHA funding
under this administration is consistently higher than it was
under the previous administration. During the fiscal years
1996-2000, MSHA funding averaged about $208 million. The Bush
administration, working closely with Congress, has increased
that figure to an average of $266 million a year during fiscal
years 2001-06.
Moreover, funding for coal mine administration alone is up
to an average of $115 million per fiscal year under the Bush
administration versus $107 million per fiscal year under the
previous administration.
Importantly, the number and nature of mines is constantly
changing, and MSHA must reflect this reality by continually
shifting funds between coal, metal, and non-metal mines. Last
year's figure of $140,000 MSHA-spent dollars per coal mine is
by far the highest in history. The same figure for 1996 is
$72,000, revealing that MSHA spending per coal mine has nearly
doubled over the past 10 years.
Enforcement of mine safety standards in this administration
is strong and getting stronger. In 2004, the last year of
available statistics, MSHA imposed $8,453 of fines per mine,
compared to only $5,649 at the end of the previous
administration. Today, an MSHA enforcement staffer oversees
only 3.39 mines, compared to an average of 3.8 mines during the
previous administration. Clearly, this agency is active and
fully engaged in the ongoing struggle to make our mines safe.
This commitment of Federal resources, combined with
intensive efforts by the mining industry to continually enhance
mine safety, resulted in 2005 being the safest year in the
history of American coal mining. Since the turn of the century,
coal mine fatalities have dropped 42 percent, and the number of
coal mine injuries has dropped 22 percent. Over the same time
period, fatalities at all mines, including metal and non-metal
mines, has dropped 33 percent, with injuries dropping 25
percent.
Just as we must examine MSHA funding and MSHA enforcement
in terms of per mine expenditures, a more true analysis of mine
safety requires noting the number of fatalities and injuries
per mine. These data, too, are promising. Since 2001, the
number of coal mine fatalities per 1,000 mines has been nearly
cut in half, from 19.6 to 11.1. Rather than deliberating over
how many office staff MSHA should have here in Washington, it
is imperative we focus on these real safety results that are so
crucial to miners' health and well-being.
Obviously, however, the recent tragedies remind us that
there is never enough that Congress, MSHA, or the mining
industry can do to ensure the safety of miners. I have met with
Mr. Stickler, and I know he understands this. I congratulate
him on his nomination and look forward to working with him in
ensuring the safety of miners nationwide.
The Chairman. Thank you.
Senator Kennedy.
Senator Kennedy. Thank you. Thank you very much. I have a
number of questions. We will try and get through them here.
First of all, even though it isn't required under MSHA, can
you give us assurance that you will talk to these families in
some setting?
Mr. Stickler. Yes, and I know that MSHA has done that in
the past. And if I am confirmed, at some point, probably at the
end of the investigation, I would sit down and review the
report with them and give them the opportunity to----
Senator Kennedy. Well, I appreciate at the end of the
investigation. I think it might be useful at some time--it is
not required in the regulations, but it seems to me in the
investigation that it would be useful to sit down with those
family members in some kind of setting to get their
recommendations.
Mr. Stickler. I understand that MSHA has made a commitment
to a public hearing.
Senator Kennedy. Well, I will get the details of that, but
it would be useful and helpful if you would give us the
assurance that you will sit down with them some time before the
end.
Mr. Stickler. Right. I would.
Senator Kennedy. You are aware that personal emergency
devices--you know, this is not a new issue, this issue of
communications. In the 1977 act, there is a whole provision on
communications, recognizing the need of it, and these personal
emergency devices, miners in Australia have developed them, the
PEDs that miners wear attached to their belt. It allows people
outside the mine to send messages to miners deep underground.
The lightweight device has been used in mines in other
countries and is available in the United States, but only a
handful of companies use them.
This is a grave disappointment given that we know they can
save lives. PEDs helped alert 46 miners in Willow Creek Mine in
Utah to evacuate before a fire engulfed their mine in 1998.
Were you aware of these devices when you were head of the
Pennsylvania Bureau of Deep Mine Safety, and did you promote
their use?
Mr. Stickler. Yes, I was aware of those, and I was involved
in some testing that was done at the Lake Lynn facility. In
conjunction with NIOSH engineers, the Bureau of Deep Mine
Safety participated in that testing. So I was aware of the
technology.
Senator Kennedy. How many mines after--did you implement
that?
Mr. Stickler. Well, unfortunately, Senator, in the State of
Pennsylvania, the Bureau of Deep Mine Safety has no rulemaking
or promulgation of rules, no authority in that area. And the
only way that I could get new technology into the mines would
be as part of a plan. If an operator was submitting a plan for
perhaps a waiver or variance, then I could improve technology
in those requirements. But as far as making rules, I had no
authority to do that.
Senator Kennedy. Well, given where the 1977 act's Section
316, talking about the areas of safety, which are completely
discretionary with the Secretary, it talks about telephone-
equal two-way communications approved by the Secretary shall be
provided between surface and each landing, main shaft, slope,
surfaces of any coal mine more than 100 feet down from the
portal.
It is difficult for me to understand. You had the hearings
then. You know what was going on in the Willow Creek Mine in
Utah. You had the hearings then.
Let me move into another area, that is, with regards to the
emergency rescue chambers. All of us want to wait to see what
the final results are going to be, but here it is in the 1977
act: The Secretary or an authorized representative of the
Secretary may prescribe to any coal mine that rescue chambers,
properly sealed, be erected in the mine to which persons may go
in an emergency. This is 1977. Canada implemented it, saving
people's lives.
Did you implement or try to get anything like that
implemented while you were the head of that division in
Pennsylvania?
Mr. Stickler. I operated under the Pennsylvania Bituminous
Coal Mine Act, which is totally different than the Federal Mine
Health and Safety Act.
Senator Kennedy. Would you implement--well, you have
studied this act. Don't you think we could go ahead with this?
You are up to be the head of this. Wouldn't you believe that
given the act itself you would want to move ahead with that?
Mr. Stickler. Yes, I think there are some mines that the
shelter areas, particularly large mines--I have worked in a
large underground mine that had an underground shelter with a
bore hole going to the surface so that compressed air could be
pumped into that shelter area and protect the miners in case
there was a fire or explosion. So I am aware of that, and there
are applications that I think it would be applicable.
Senator Kennedy. Well, there is a sense of urgency, Mr.
Stickler. You know, we talk about how we have to look over all
new kinds of technologies and evaluate them, when we have some
that have been tried and tested and have worked and saved
people's lives. We want to know if you are going to be
implementing this law, when you have these clear provisions,
whether you are going to make sure that they do it.
Let me go into this other area, and that is mine rescue
teams. The act says that within 180 days after the effective
date of the Mine Safety Act of 1977, the Secretary shall
publish regulations which will provide that mine rescue teams
shall be available for rescue and recovery in each underground
coal or other mine in the event of an emergency. That is in the
law. That is in the law now.
You recognized this problem with mine safety in your own
statement. I have your statement here, Commonwealth of
Pennsylvania, talking about membership on mine rescue teams, a
very dynamic process, many experienced with mine rescues,
retiring, no longer participating. We understand the importance
of mine rescue teams. It is in the 1977 law. This is the job
you want, you are going to. Are you giving us the assurance
that with that kind of language and authority in there you are
going to make sure that every mine is going to have a mine
rescue team?
Mr. Stickler. Well, what I did in the State of
Pennsylvania----
Senator Kennedy. Would you now, if you were approved, give
us the assurance that you will follow this and have every mine
have a mine rescue team, as provided for in this section of the
Mine Safety Act?
Mr. Stickler. No, Senator, I cannot commit to that at this
time. My experience, I have had coal mines in the State of
Pennsylvania that only had two employees. Now, how is a coal
mine with two employees going to have their own mine rescue
team? What they did----
Senator Kennedy. Where are you drawing the line then? I
don't want to spend--I am over my time. Where are you going to
draw it? At five? Will you give me the assurance that anyone
who has five, more than five miners?
Mr. Stickler. I will give you the assurance that, if I am
confirmed, I will study this and I will make the appropriate
decision for health and safety.
Senator Kennedy. Well, given what we have seen in the
recent times and days, the specific requirements under the law
and the safety provisions that we have been exposed to, not to
have someone that is going to chair this with the specific
kinds of opportunities and requirements under the law and say
you are going to study it more doesn't give me a great deal of
satisfaction. I don't know whether I am missing something. I
don't want to be unfair to you. But this is tough business.
Mr. Stickler. I think there are other ways to do mine
rescue other than requiring----
Senator Kennedy. I am not asking whether you think there
are others and I hope you will do it. I am just asking whether
you are going to enforce the law that was passed by the
Congress and signed by the President.
Mr. Stickler. Yes, I will enforce----
Senator Kennedy. Well, that is--and you are going to
enforce and make sure, as this law says, within 180 days--we
will give you after 180 days that you are in there, would be a
lot, we will publish--we will provide mine safety teams
available for rescue and recovery to each underground coal
mine. That is what the law says. I want to know if you are
going to implement it.
Mr. Stickler. Yes, I will implement the law, and the
interpretation of ``available'' has been within 2 hours of the
mine. The rescue station is to be within 2 hours of the mine,
is what the current regulation is.
Senator Kennedy. Well, that is not what the law says. Two
hours I am familiar with, and people down there at Sago think
that that cost those people's lives on it. And another place is
where they have mine rescue teams available, they say--and I do
not want to go through the history through West Virginia. So
that is something.
My time--could I just ask one further question, Mr.
Chairman? This has to do with OSHA. This is the publication of
standards. One of the standards that we have had, the final
action, the regulatory standards, the final action expected
this rule in March. This was a proposed regulation to require
employers to pay for safety equipment, such as hard hats and
gloves. Paying for this safety equiptment is particularly hard
on low-income workers, and we have had a regulation that is
supposed to be out in March this year. Are you familiar with
it?
Mr. Foulke. I am familiar that there is a regulation,
proposed regulation to have employers pay for personal
protective equipment, yes, Senator.
Senator Kennedy. And as I understand it, it is expected due
in March this year.
Mr. Foulke. I am not exactly sure of the date, yes.
Senator Kennedy. Have you got an opinion about that rule or
regulation?
Mr. Foulke. Senator, I would say I know this is something
that has been promulgated before, and actually I think the
previous rulemaking had actually talked about having PPE paid
for, and then it was for some reason dropped. I am not sure
why. But I know it is currently pending. It is one of the
standards that I am going to be looking at, if confirmed,
fairly quickly.
I would note, too, though, that there are a lot of PPE--
there are also a lot of standards that require employers to
provide PPE, and as part of that providing, it is required to
be paid for. So at least for certain amounts of personal
protective equipment, there is a requirement for it to be paid.
But this would, of course, make it across the board.
Senator Kennedy. Well, it does not sound like you are quite
on for that one regulation that I understood was going to be
put out in March.
Let me just ask finally, in the safety standards, there are
safety standards that have been delayed for years, including
the requirement, as I mentioned, personal protective,
hexavalent chromium, permissible exposure areas, and on silica.
And, in fact, the standard on hexavalent chromium is under
court order to be completed. Some of these standards have
already gone through the final rulemaking process when
President Bush took office. That was 5 years ago. We have still
not seen these vital safety standards completed. I am going to
write to you and ask you what your position is and how we will
get those done. And I hope we will get a response.
Mr. Foulke. I look forward to answering those questions.
Senator Kennedy. Thank you, and I thank our committee
members for their indulgence.
Thank you very much.
The Chairman. Thank you.
Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Stickler, based on your testimony and your background,
you clearly have a good understanding of the technologies that
are used in other countries, the technologies that have been
proposed in this country. Give us some of your comments about
where you think we are going. You heard Mr. Isakson talk to you
about oxygen and communication, obviously the two big concerns
and the big needs. What can you tell us?
Mr. Stickler. Well, like I mentioned earlier, I believe the
technology did a lot to drive safety during my career, and I
credit the Congress for that. They implemented laws that
required technology at the time in some cases that had not even
been developed. They were stretching the envelope.
Senator DeWine. But where are we going now, though?
Mr. Stickler. Well, I think the information that MSHA has
sent out to gather information about the mine rescue technology
and technology in general, I think that is a good step. I think
that needs to be looked at, and from that the game plan would
be put together to decide how to advance those technologies
that are available that would help improve mine health and
safety.
Senator DeWine. When we had a hearing several weeks ago,
the person who is acting in the position that you are proposed
to take could not give any real timeline about when that would
be. I would hope that if you are confirmed, you would set a
very firm timeline for that. Do you think you will be able to
do that?
Mr. Stickler. If I am confirmed, I will look at the
schedule and do what I can to move that as quickly as possible.
Senator DeWine. You know, I think this----
Mr. Stickler. Once I have established the timeline, which I
will do, I will get back to you.
Senator DeWine. All right. Let me ask you a question, Mr.
Foulke. You heard some comments made by Senator Kennedy in his
opening comments about the fatality rate in regard to the
workplace. Are you familiar with the trend line over the last
few years?
Mr. Foulke. Yes, Senator. I know that this past year there
was a slight increase in fatalities.
Senator DeWine. What do you attribute that to?
Mr. Foulke. I haven't really reviewed the data, although
what preliminarily I have understood it to be is that part of
the situation occurs where there has been a fairly extensive
increase in construction throughout the country. If I had to
guess, I would suspect that that is where the additional
amounts have occurred.
Senator DeWine. Can you give us any general discussion
about your philosophy about how you will approach this job?
Mr. Foulke. One of the things I would really like to do,
you know, clearly enforcement is an important issue for them,
and we are going to continue that. But I really want to see
OSHA become as proactive as possible in order to avoid and
eliminate injuries, illnesses, and fatalities. Coming in, like
I say, as I indicated earlier, enforcement is an important
tool, but a lot of times you are coming in after something has
happened. So we have to try to figure out how we can prevent
them from ever happening.
Obviously, I think the overall goal of the act is to
eliminate that we would never have to do any enforcement
because there would be no injuries or illnesses and everyone
had a safe workplace. But we need to look at how we can move
forward and trying to make sure that all employees, first of
all, are in compliance with all the safety and health standards
that are applicable to their particular business; but, second,
then, to go the next step further because, to tell you the
truth, that is just one level. The next level is having a full,
comprehensive safety and health program. I think that is where
a lot of the compliance assistance, the VPP, the Voluntary
Protection Program, all those kind of focus in on trying to
push employers or help employers go forward where they have the
best of the best safety program in place. And when you have
that--and I have worked with a lot of employers in these
programs--I found out that what they talk about first when they
have a meeting, if you really want to know when employers are
really safety and health conscious, it is when they have their
senior staff meetings and the first thing they talk about is
safety and health--not productivity, not efficiency. Safety.
And all that, it is interesting, what flows from it. If we can
get that mind-set throughout the country for all employers, we
are going to be successful in dramatically reducing injuries,
illnesses, and fatalities.
Senator DeWine. Mr. Stickler, you said in answer to a
question from this panel that you did not think any additional
laws were needed. That the laws are complied with is what needs
to happen. That would indicate that you think clearly sometimes
these laws are not complied with. Does that mean you believe
there is some enforcement problem?
Mr. Stickler. Well, I think there is a compliance problem,
and I believe that MSHA is----
Senator DeWine. Well, does that mean there is an
enforcement problem?
Mr. Stickler. I wouldn't call it an enforcement problem.
Senator DeWine. Well, what is the difference?
Mr. Stickler. Well, compliance is when you have operators--
in some cases, a small percentage of operators will try to
comply with the law when MSHA is at the job site, but that is
the only time they try to comply with the law. And that is what
I mean by a compliance problem. MSHA enforces the law when they
are at the job site, but naturally, MSHA is only at the job
site a fraction of the time.
And don't get me wrong, a large percentage of the operators
and the people in the industry do try to comply with the law.
But I am just talking about a small percentage of people that
they will only comply with the law whenever they are forced to.
Senator DeWine. My time is up. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Thank you. I would now like to submit the
statement of Senator Harkin for the record.
[The prepared statement of Senator Harkin follows:]
Prepared Statement of Senator Harkin
Like many Americans, I have been deeply saddened and
disturbed by the recent tragedies at the Sago and Aracoma mines
in West Virginia. The deaths of the 14 miners who lost their
lives in these mines are even more tragic because of the
possibility that they could have been prevented with some
simple and long-overdue improvements in mine safety regulations
and technology.
These tragedies have raised serious questions about mine
safety and the effectiveness of the Mine Safety and Health
Administration (MSHA) under this administration. Recently, MSHA
has suffered from a 1 percent across-the-board slash in
funding, resulting in a loss of $2.8 million that could have
been spent on improved air supply equipment, tracking devices
which can pinpoint the exact location of trapped miners, and
personal emergency devices which broadcast text messages to
miners. MSHA has also recently cut 183 staff positions,
lessening critical human resources needed to make MSHA more
effective at identifying mine safety violations and enforcing
the penalties for those violations.
This pattern of weakening the Mine Safety and Health
Administration is counterproductive to making the kind of
improvements that will enhance and foster greater mine safety.
I also plan to push for expediting the research into two-
way technology that would allow communication between miners
and rescuers above ground as well as improved air supply
technology which would prolong the amount of time miners can be
in areas where carbon monoxide levels are high. In addition, I
believe that fines for safety and health violations should be
increased to a level that will force coal companies to correct
them quickly.
Two hundred eight violations in the course of 1 year, at
least 40 percent of which were for ``serious and substantial''
violations, yet the amount of fines levied for these violations
amounted to only $24,374; at the time of the accident only
$14,471 had been paid; the largest single fine for any one
violation was only $440, the specific fine per incidence of
having combustible materials was only $60--these are the 2005
numbers on the Sago mine. After a December 2001 accident in an
Alabama mine, initial fines of $435,000 were reduced to $3,000.
I'm an advocate for increasing fines to levels that would force
coal companies to more quickly correct safety and health
violations and actually deter lax enforcement of mine safety
regulations.
In these times, MHSA, too, needs a strong advocate for
miners and their safety, not an advocate for industry who seeks
to figure out ways to make enforcement of mine safety and
health less onerous for the private companies that operate
mines.
The problems with lax enforcement of mine safety
regulations that have recently come to light are by no means
confined to that segment of occupational safety and health. In
the larger OSHA context, 12,800 workers are killed or injured
each day on the job. Yet, there are some in Congress proposing
legislation that will weaken safety and health protections
rather than strengthen them. The sponsors and proponents of
this legislation tout them as common sense fixes that will
alleviate some regulatory burdens without sacrificing safety
and health protections. In fact, enforcement under the
Occupational Safety and Health Act is already much weaker than
many other safety and health laws, with average penalties of
less than $900 for serious violations that pose a substantial
risk of death or serious harm. This is baffling to me. Safe
working conditions yield fewer injuries and deaths and increase
productivity. It makes little sense to fight compliance with
and work against safety regulations. OSHA needs an advocate
that will have a hallmark of his leadership, aggressive
outreach and education to businesses about how everyone
benefits when OSHA regulations are strictly enforced. Again,
the administration and the Congress need to be working together
to create and increase conditions that will foster better
worker safety, public health and environmental safeguards.
The Chairman.Senator Clinton.
Senator Clinton. Thank you, Mr. Chairman.
Mr. Chairman, I would ask unanimous consent to submit for
the record a letter sent to President Bush from Cecil E.
Roberts, the International President of the United Mine Workers
of America.
The Chairman. Without objection.
Senator Clinton. Thank you.
[The letter follows:]
United Mine Workers of America,
Fairfax, VA 22031,
January 24, 2006.
Hon. George W. Bush,
President of the United States of America,
The White House,
1600 Pennsylvania Avenue, N.W.,
Washington, D.C. 20500.
Dear President Bush: As President of the United Mine Workers of
America, the largest labor union representing coal miners in this
country, I respectfully request that you withdraw the pending
nomination of Richard Stickler to serve as Assistant Secretary of Labor
for Mine Safety and Health. We urge your immediate attention to this
matter as the Senate is scheduled to conduct a hearing on this
nomination next Tuesday, January 31.
Mr. Stickler spent the overwhelming part of his career as a coal
mine executive. That is the same background that former Assistant
Secretary Dave Lauriski brought to the Mine Safety and Health
Administration (``MSHA''), with disastrous results. The Nation's miners
cannot tolerate having another mine executive running the Agency
responsible for protecting their health and safety. For too many years,
miners have endured an Agency directed by coal mine executives. Too
often these mining executives place a priority on productivity, but
fail to focus on miners' health and safety. Too many times MSHA has not
done all that it is charged with doing to promote miners' health and
safety.
In enacting the Mine Act, Congress made it clear that miners'
health and safety is the preeminent priority of MSHA. Indeed, it
plainly stated: ``Congress declares that the first priority of all in
the coal or other mining industry must be the health and safety of its
most precious resource--the miner.'' (30 U.S.C. 801.) We take that
admonition seriously. As the most recent coal tragedies--at the Sago
Mine and then at the Alma Mine #1--dramatically revealed, coal mining
remains terribly dangerous. Miners need someone leading MSHA who makes
their health and safety his number one priority.
MSHA's internal analyses repeatedly demonstrate that the Agency is
not doing its job well enough. After explosions at a Jim Walters
Resources Mine in Alabama killed 13 miners on September 23, 2001, MSHA
investigated the company, and it investigated itself. It found both had
failed the miners in numerous ways. Yet, MSHA still has not implemented
all of its own recommendations. In 2003, the GAO issued a report on
MSHA's performance. It, too, found deficiencies in MSHA's performance;
today those same problems persist.
As a Nation, we cannot watch as more mines explode, burn, and
flood, as they so recently did at Sago, Jim Walters, Quecreek, and
Alma. Miners in this country cannot afford to have more mining
executives responsible for their health and safety. It is for that
reason that I request that you reconsider the nomination of Richard
Stickler and withdraw his nomination to be your next Assistant
Secretary of Labor for Mine Safety and Health.
Respectfully,
Cecil E. Roberts.
______
Senator Clinton. Mr. Stickler, in this letter from Mr.
Roberts to the President, he makes the point that in enacting
the Mine Act, the health and safety of miners was the
preeminent priority of MSHA. And we have had since 2001 a
number of problems with the attitude by those responsible for
enforcing the laws and by the continuing problems that have
persisted despite interventions and efforts to change
direction.
For example, after the explosion at a Jim Walters resources
mine in Alabama that killed 13 miners on September 23, 2001,
MSHA investigated the company and investigated itself. It found
both had failed the miners in numerous ways. Yet MSHA still has
not implemented all of its own recommendations. In 2003, the
GAO issued a report on MSHA's performance. It, too, found
deficiencies in MSHA's performance.
Today, those same problems persist. In its first few years,
the Bush administration dropped more than a dozen proposed
health and safety regulations left over from the Clinton
administration. In fact, since January 2001, Bush political
appointees at MSHA have withdrawn or delayed final action on 18
mine safety rules. Three of these rules may have had the
potential to speed the rescue and increase the chances of
survival of the 14 miners killed in the recent West Virginia
disasters.
By contrast, on Monday, January 29th, 72 Canadian potash
miners were rescued from an underground fire after being locked
down overnight in airtight chambers packed with enough oxygen,
food, and water for several days. The success of this rescue is
largely attributed to these chambers, to the extensive training
of rescue workers, and uninterrupted communications.
Now, I would assume that based on your own experience--and
I read your statement--and obviously your personal
relationships with your own family members and others in the
mining industry, you care deeply about the health and safety of
miners. Is that correct?
Mr. Stickler. I do.
Senator Clinton. If confirmed for this position, will you
take the actions that have not been taken since 2001, which
numerous outside studies as well as GAO study have consistently
found are necessary to protect the health and safety of miners
in this country?
Mr. Stickler. Senator, if I am confirmed, I would do an in-
depth analysis of the regulations or proposed regulations that
were withdrawn, and if some of those can be advanced and
justified, then I certainly will do that. I will look at the
agency itself to make evaluations where I can improve the
overall efficiency and the operation of the agency. I will
focus on trying to improve the use of the primary tools--
enforcement, technical support, and education and training.
Senator Clinton. Well, the problem with that answer, Mr.
Stickler, which is fine on the face of it, is that we have all
of this evidence going back now 5 years that changes need to be
made. So you will be coming into a situation where there is
congressional study, there is independent study, there is
reality-based experience where people in the view of many
experts have lost their lives because of failure to enforce
existing regulations and improve safety. And it is troubling, I
think, to a number of us that once again we are going to be
studying what should be self-evident, that we need improvements
in order to protect the health and safety of people who work in
the mines in this country.
One of the critical duties that you will have is to enforce
the safety laws, and that includes citing and fining employers
who fail to comply with those laws. And I am very concerned
that we have a history under the Bush administration where
consistently violations have either been overlooked or the
least amount of fines possible have been imposed.
Incredibly, the amount of fines for violations averaged
only $156, and for 89 of the numerous safety violations just in
2005, the penalties were as low as $60. And I know that the
problem is that we need an attitude of enforcement, and
although there is a proposal to increase the fines that are
available, the problem seems to be that the minimum fines are
too low and don't do enough to serve as deterrents.
Will you as Assistant Secretary re-examine the formula,
particularly in light of the safety violations at the Sago
Mine?
Mr. Stickler. Yes, I am concerned about ensuring that the
penalty fits the severity of the violation, and my opinion is
that the penalties should be increased.
Senator Clinton. Mr. Chairman, my time is up. I have a
number of other questions for both Mr. Stickler and Mr. Foulke.
If I could just convey those to you by entering them into the
record and asking that the nominees please respond in writing,
I would appreciate that.
The Chairman. Definitely.
We will leave the record open for 10 days so that people
can--but I would hope that they would submit the questions
quickly so that they have a little bit of time to answer them
so that we can get the answers in the record.
Senator Clinton. Yes.
The Chairman. I appreciate all the questions that people
have asked today, and also, there are several people out in the
audience that have helped us. Before we went to the Sago Mine,
we got a series of briefings, those of us that were going down,
so that we would have a better understanding of what we might
see and experience down there. And they were of tremendous
help. They helped us a lot with the questions and also
understanding some of the answers.
It is my opinion that there are things that can be done to
improve the mine safety and that we need to do them, and we
need to do them as quickly as possible. They are not things
that will come out of the investigation necessarily. We did
meet with the families, as we mentioned a number of times, the
families and the miners and United Mine Workers, and even the
media, and went and visited the mine site. We were not allowed
to go in the mine, of course, because that is sealed off
pending the investigation. But it was like the story of when
someone is having an intense meeting, and somebody runs through
and fires a gun a couple of times and runs out, and you start
comparing notes on what everybody saw. There was quite a
divergence of information from one meeting to the next or even
within some of the same meetings.
So, obviously, we need to have some professionalism that
can review these things with an eye to the worker and make sure
that we make these places as safe as possible. The amount of
coal this country is going to need over the next several
decades is going to be astonishing. As the amount of oil goes
down, we will have to have more coal research and find uses for
this tremendous resource that we have in this country.
The county that I come from has more BTUs in coal than
Saudi Arabia has in oil, and that is just in the upper layer.
We could go down another 400 or 500 feet and hit 3 times as
much resource. And that could all be used for some of the
energy needs that we have got, but it has to be done safely
while we are doing it, and we have to find some new uses for
it.
So I will be submitting some questions as well. I have
quite a few of them, and with some of the testimony, there are
some things that I do want you to expand on, too. And it is not
all just on mine safety.
I started working on OSHA before I ever was introduced to
some of the complexities of the mine safety laws, and that is
definitely an area where I also think that we can make some
very significant progress and protect workers from both
injuries and deaths. And I intend to do that. I know that you
have even testified before, and I have appreciated that
testimony in review of some of the things that I have been
drafting to see how that fit with your experience. And I will
have questions for both of you. As I mentioned, the record will
stay open for another 10 days.
I would ask unanimous consent that letters of support that
we have received and will receive become a matter of the record
as well.
[The letters follow:]
American Industrial Hygiene Association,
Fairfax, VA 22031,
October 3, 2005.
Hon. Michael B. Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: The American Industrial Hygiene Association
(AIHA), the premier association of occupational and environmental
health and safety professionals, wishes to take this opportunity to
comment on the confirmation of a new Assistant Secretary of Labor for
the Occupational Safety and Health Administration (OSHA). AIHA, through
its 12,000 members, has more than 60 years of commitment to the
protection of workers, their community and the environment.
AIHA is pleased to offer our endorsement of Mr. Edwin Foulke, Jr.
for the position as Assistant Secretary of Labor for OSHA.
AIHA believes Mr. Foulke is committed to the proposition that OSHA
can serve both the objectives of protecting the worker and helping
businesses to be profitable--that these objectives are complementary.
We also feel he fully understands the overlap and the interaction
between the issues of the workplace, the environment and the community.
Mr. Foulke is well known within the occupational health and safety
community because of his service on the Occupational Safety and Health
Review Commission, where he served from 1990 to 1995; and served as
Chairman of the Commission from 1990 to 1994. We are also aware that
Mr. Foulke is well respected within the business community and that
those representing labor feel he has been ``someone who would reach out
to different groups.''
His experience with all sectors, including industry and labor,
provides essential background and understanding of health and safety
issues from many perspectives. We believe the confirmation of Mr.
Foulke would assure that worker health and safety would be expertly and
effectively implemented. We are also pleased to note Mr. Foulke's past
support for efforts to update Permissible Exposure Limits within OSHA,
a view shared by both labor and industry.
The only reservation AIHA might have to this confirmation would be
the concern that Mr. Foulke does not bring any ``front-line'' health
and safety experience to the position. As some have said, ``the job of
OSHA assistant secretary is different from being on the commission.''
We are hopeful that Mr. Foulke will reach out to all sectors to better
understand the role that OSHA must fulfill if we are to reduce
fatalities, injury and illness in the workplace.
If AIHA can be of any assistance to you, please do not hesitate to
contact me.
Sincerely,
Roy M. Buchan, Dr. PH., CIH,
AIHA, President.
Steven Davis,
AIHA, Executive Director.
______
American Society of Safety Engineers,
Des Plaines, IL 60018-2187,
January 27, 2006.
Hon. Michael B. Enzi,
Chairman,
Committee on Health, Education, Labor and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: The 30,000 member safety, health and
environmental (SH&E) professionals of the American Society of Safety
Engineers (ASSE) are committed to making sure that Federal occupational
safety and health agencies are fully capable of carrying out their
responsibilities for protecting this Nation's workers from occupational
safety and health risks. When the Occupational Safety and Health
Administration (OSHA) and the Mine Safety and Health Administration
(MSHA) are given the necessary resources and appropriate leadership to
carry out their responsibilities, our members are better able to do
their work in protecting workers and, most importantly, workers better
receive the protections they deserve.
In August last year, ASSE shared with the President, you and other
Congressional leaders our concern that the Assistant Secretary of Labor
positions at both OSHA and MSHA had remained unfilled for nearly 8
months. Both agencies are staffed with capable and dedicated
professionals. But, in any organization, the people who carry out day-
to-day responsibilities deserve to know the future direction that only
affirmed leadership can provide.
Community seeks agreement in direction. MSHA needs to address
asbestos in mining, substance abuse prevention, and diesel particulate
matter in mines. OSHA also needs to provide leadership in helping this
Nation's businesses maintain their competitiveness by moving forward as
soon as possible on global harmonization of hazard communications and
by working now on the protections that may be needed to address risks
from nanotechnology, which offers a unique opportunity to address risks
before they happen.
The leadership opportunities for Mr. Foulke and Mr. Stickler are
many. As they begin to address those opportunities, we urge them to
keep in mind that ASSE's 30,000 members have expertise and experience
in every industry and across the spectrum of safety and health issues
that has already proven useful in our alliance relationships with OSHA
and MSHA.
If ASSE can be of any assistance to the committee as it considers
these nominations, we ask that you would call on us. Our hope is that
the committee's deliberations will be thoughtful but speedy given the
length of time the leadership positions at these vitally important
agencies have remained unfilled.
Sincerely,
Jack H. Dobson, Jr., CSP,
President.
______
BE&K, INC.,
Birmingham, AL 35243,
October 31, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Senator Enzi: We heartily endorse the nomination of Edwin G.
Foulke, Jr. as the Assistant Secretrary of Labor for Occupational
Safety and Health.
Our endorsement of Mr. Foulke, the former Chairman of the
Occupational Safety and Health Review Commission (OSHRC), and partner
in the law firm of Jackson Lewis LLP has been carefully considered and
is not lightly given. Mr. Foulke has been known to us for 7 years and
has worked closely with BE&K to resolve key safety and health issues.
We are very aware of his active involvement in occupational safety and
health matters. His reputation is impeccable.
We firmly believe that Mr. Foulke's lifelong commitment to the
safety and health of workers, both in construction and general
industry, along with his extensive background in the legal profession,
successful policy reviews and a history of achievement in several
leadership positions makes him the ideal head of OSHA.
BE&K recognizes the need for strong leadership in an area that is
critical to the safety and well being of employees. Mr. Foulke has
proven to us that he can take the right course of action, one that is
fair to both workers and management.
We fully support Edwin G. Foulke, Jr. for the position of Assistant
Secretary of Labor for Occupational Safety and Health and feel strongly
that he will bring effective leadership to the Occupational Safety and
Health Administration.
Sincerely,
Mike Goodrich,
BE&K, Chairman and CEO.
______
Greater Philadelphia Chamber of Commerce,
Philadelphia, PA 19102-3866,
January 30, 2006.
Hon. Elaine L. Chao,
Secretary of Labor,
U.S. Department of Labor,
Washington, D.C. 20210.
Dear Madam Secretary: I am delighted to write to you and share my
unequivocal and enthusiastic endorsement of Richard Stickler and his
nomination as U.S. Assistant Secretary of Labor for Mine Safety and
Health. As we all know, the recent mining tragedies in West Virginia
underscore the need to continue efforts to increase the safety of our
miners.
It is my belief the mining community has a tremendous ally in Mr.
Stickler. During my time as governor of the Commonwealth of
Pennsylvania, I was fortunate to have him by my side during a 77-hour
rescue effort of nine miners trapped in Quecreek, Somerset County. His
experience and tremendous understanding of the subtleties involved with
working underground made him a valuable advisor to me.
Many have called the events at Quecreek a miracle, but that miracle
was made possible through the work of our team of mine experts. Without
hesitation, I would place Mr. Stickler at the top of that figurative
list of experts. At several points during the rescue, he provided the
keen insight we needed to make life-saving decisions that were critical
to the success of our rescue operation.
Indeed, my administration and all Pennsylvania miners, were
fortunate to have his services. For that reason, and many others, I
believe Richard Stickler would be an excellent addition to your team of
leaders and Government executives.
In closing, if questions later arise, please feel free to contact
me. Thank you.
Sincerely,
Mark S. Schweiker,
President & CEO.
______
Garber & Associates,
Lansdale, PA 19446,
November 10, 2005.
Hon. Mike B. Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: As a practicing safety professional with over
15 years of field experience, I wanted to take the opportunity to
comment on President Bush's nomination of Mr. Edwin G. Foulke, Jr. for
the position of Assistant Secretary of Labor for the Occupational
Safety and Health Administration. My career has been spent actively
working on the front lines of business and industry with the chief aim
to ensure that workers are adequately protected in the workplace from
injuries and illnesses through effective adherence to applicable OSHA
regulations, safety and health management systems, and by counseling
organizations on the importance of safety in the workplace toward sound
business practices. It is this experience that permits me to make many
observations as they relate to the importance of OSHA and its leader.
I support the nomination of Mr. Edwin G. Foulke, Jr. for the
position of Assistant Secretary of Labor for the Occupational Safety
and Health Administration. In his service on the Occupational Safety
and Health Review Commission (OSHRC), Mr. Foulke demonstrated a
balanced approach toward various industry groups in his review of the
safety and health issues set before him. Mr. Foulke is well respected
in his profession and for his dedication toward advancing the mission
of OSHA. He brings a wealth of experience and will do what is right. My
professional practice has included involvement with OSHA on many
occasions and I believe that Mr. Foulke would be an asset to the
Occupational Safety and Health Administration.
In my work with the Society for Human Resource Management, it has
been my privilege to serve with Mr. Foulke on a National Workplace
Health, Safety and Security Committee and more recently on the
Workplace Health, Safety and Security Expertise Panel. It has been
through my experience in working with Mr. Foulke that I have come to
further respect his knowledge and understanding of the front line
safety and health issues facing American workers and American business.
If there is any one significant matter that I can convey to you leading
into the confirmation process, it is that I firmly believe that Mr.
Foulke clearly understands front line safety and health, an issue that
many have criticized Mr. Foulke for lacking. I can tell you from
working with Mr. Foulke that he has a firm understanding of front line
safety issues and will bring strong leadership toward advancing the
strategic management plan of OSHA.
Mr. Foulke will make an excellent Assistant Secretary of Labor for
the Occupational Safety and Health Administration. He is well qualified
for the position and will serve to protect American workers and
American business.
If I can be of assistance to you, please do not hesitate to call.
Sincerely,
John E. Garber, Jr., MS, CSP, SPHR,
Garber & Associates, President.
______
Society For Human Resource Management,
Alexandria, VA 22314-3499,
November 15, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Hon. Edward Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi and ranking member Kennedy: The position of
Assistant Secretary for Occupational Safety and Health Administration
(OSHA) has been vacant since January 2005. The nomination for this
position has been pending since September 15, 2005. Given the
importance of the OSHA to the American workplace, as well as the health
and safety issues resulting from Hurricane Katrina, the Society for
Human Resource Management (SHRM) requests that the committee act
immediately to fill the position before Congress adjourns for this
session.
Edwin G. Foulke, Jr., the nominee for this position, has a very
accomplished background in occupational health and safety issues. Mr.
Foulke has over 20 years of experience in OSHA matters, including
inspections, compliance strategies, and rulemaking. Mr. Foulke has also
served previously as Chairman of the Occupational Safety and Health
Review Commission, where he decided hundreds of cases during a period
of critical debate over OSHA's role in protecting the American
workplace. SHRM believes that Mr. Foulke would make an excellent
Assistant Secretary for OSHA, and fully supports his confirmation.
SHRM is the world's largest association devoted to human resource
management. Representing more than 200,000 individual members, the
Society's mission is both to serve human resource management
professionals and to advance the profession. Founded in 1948, SHRM
currently has more than 550 affiliated chapters and members in more
than 100 countries. Because HR professionals play a critical role in
ensuring safe workplaces, SHRM has a strong interest in seeing that
this position is filled in an expeditious manner.
Sincerely,
Susan R. Meisinger, SPHR,
President and Chief Executive Oficer.
______
Lending Tree,
Charlotte, NC 28277,
November 28, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: Please accept this letter as my support for
Edwin G. Foulke, Jr. as a nominee for the Assistant Secretary of Labor
for Occupational Safety and Health.
As the Chair of the Society for Human Resource Management (SHRM),
the world's largest professional human resources organization,
representing over 205,000 members in over 100 countries, I can tell you
Mr. Foulke has earned the respect and trust of SHRM members throughout
the country. Not only is he a knowledgeable, hardworking, and
insightful practitioner, but he has exceptional leadership skills. Most
importantly, he is a fair and just professional that is steadfast in
protecting the safety and well-being of workers.
Edwin G. Foulke, Jr. believes in the mission of the Agency to
assure the safety and health of America's workers by setting and
enforcing standards; providing training, outreach, and education;
establishing partnerships; and encouraging continual improvement in
workplace safety and health.
In the event you would like to discuss my support of Mr. Foulke's
candidacy for Assistant Secretary of Labor for Occupational Safety and
Health, please contact me.
Thanks in advance for your time and consideration.
Sincerely,
Johnny C. Taylor, Jr., J.D., SPHR,
Senior Vice President, Human Resources.
______
Mrs. Cathy D. Mueller,
Edwardsville, IL 62025,
November 7, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: It is with high honor and respect that I am
writing you recommending Mr. Edwin G. Foulke, Jr. for the position of
Assistant Secretary of Labor--OSHA.
Actively working as a manager in the profession of Safety and
Health for nearly 30 years in the aerospace, primary metals
manufacturing, and insurance sectors, I am familiar with OSHA, its
history, and requirements. Mr. Foulke is an excellent choice to provide
leadership and direction to the Agency.
Knowing Mr. Foulke for almost 10 years in a volunteer capacity as a
member and past chair of the Workplace Health, Safety, and Security
Committee for the Society for Human Resource Management (SHRM) has been
my good fortune. Mr. Foulke's leadership ability and his first hand
knowledge of OSHA and the Occupational Safety and Health Review
Commission (OSHRC) have been invaluable to our group's mission.
My interactions with Mr. Foulke, in both committee and professional
capacities, have been outstanding. I have found him to be insightful in
his understanding of OSHA and OSHRC, and value his legal opinions. His
great knowledge of OSHA and legal issues will be crucial to the
operation of the Agency.
I feel Mr. Foulke will make decisions that are in the best interest
of the safety and health of our Nations workforce.
Thank you, Senator Enzi, for allowing me the opportunity to provide
a recommendation for Mr. Foulke.
Sincerely,
Cathy D. Mueller.
______
National Roofing Contractors Association,
Rosemont, IL 60018,
November 10, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: On behalf of the National Roofing Contractors
Association (NRCA), it is my pleasure to write to you in support of the
nomination of Edwin G. Foulke, Jr. for Assistant Secretary of Labor,
Occupational Safety and Health Administration (OSHA). We have known Mr.
Foulke for 14 years and he will do an excellent job reaching out to all
stakeholders to seek improvements in workplace safety.
We first met Mr. Foulke when he was Chairman of the Occupational
Safety and Health Review Commission (OSHRC) in the administration of
former President George Herbert Walker Bush. He spoke at our national
convention in 1992 and patiently handled many complicated questions
covering a broad range of safety issues.
Mr. Foulke is currently with the law firm of Jackson Lewis LLP and
we have continued to work together as members of the Labor Relations
Committee of the U.S. Chamber of Commerce. Mr. Foulke is a dedicated
professional who co-chairs his firm's OSHA Practice Group and has
testified before Congress on behalf of the Chamber.
NRCA is an association of roofing, roof deck and waterproofing
contractors. Founded in 1886, it is one of the oldest associations in
the construction industry with 5,000 members throughout all 50 states.
We urge your support for Mr. Foulke's confirmation.
Sincerely,
William A. Good, CAE,
Executive Vice President.
______
Schottenstein Zox & Dunn,
Columbus, OH 43215,
October 28, 2005.
Hon. Mike Enzi,
Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: I have had the pleasure of knowing and working
with Edwin G. Foulke, Jr. since his term as Chairman of the
Occupational Safety and Health Review Commission. During his tenure at
OSHRC, I served as the American Bar Association's Management
chairperson of its Occupational Safety and Health Law Committee. In
that role, I worked with Mr. Foulke and my union-side co-chair, Don
Elisberg, in assisting in Mr. Foulke's organization of annual
conferences for Review Commission judges that presented balanced views
to the judges on developments in the law. Mr. Foulke's tenure as Review
Commission chairperson demonstrated his significant administrative
abilities as well as his knowledge of the law of occupational safety
and health. Since his service, I have followed his professional
representation of clients before OSHA and OSHRC.
I completely support Mr. Foulke's nomination to head the
Occupational Safety and Health Administration as the Assistant
Secretary of Labor. He will, I am certain, provide excellent leadership
and service in this role. Should you or your staff have any inquiries
concerning my support, please do not hesitate to contact me.
Very truly yours,
Felix C. Wade.
______
Tree Care Industry Association,
Manchester, NH 03103,
February 9, 2006.
Hon. Michael B. Enzi,
Chairman,
Committee Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
Dear Chairman Enzi: I write on behalf of the Tree Care Industry
Association (TCIA, formerly the National Arborist Association) in
support of Edwin G. Foulke's nomination to the position of Assistant
Secretary of Labor for the Occupational Safety and Health
Administration and to urge that the committee move expeditiously to
schedule a vote on his nomination. I also would like to take this
opportunity to thank the chairman for holding a hearing on Mr. Foulke's
nomination and for all important work on safety and health issues you
have done in your current position as well as previous role as chair of
the Subcommittee on Employment and Workplace Safety.
TCIA is a 68 year-old trade association representing more than
2,000 commercial tree care companies and their affiliates. Our
membership is comprised of arborists engaged in residential and
commercial tree trimming, as well as line clearance tree trimmers, who
trim trees proximate to overhead wires for their utility company
customers.
TCIA is the leading advocate for safety in the industry and has a
history of working cooperatively with OSHA, its State counterparts and
other stakeholders on developing standards and educational programs
that improve safety for arborists. In fact, we recently instituted the
industry's first safety certification program--The Certified Treecare
Safety Professional (CTSP).
We strongly support the President's nomination of Mr. Foulke to
head OSHA. His record on the Occupational Health and Safety Review
Commission as well as his long history assisting companies in
developing safety programs as a private attorney speaks to his
dedication to safety and understanding of the challenges in
implementing effective workplace programs. We look forward to working
with Mr. Foulke if he is confirmed and ask the committee to move
quickly to schedule a vote and complete the next step in filling this
critical position.
Again, thank you for all your work on these important issues.
Respectfully,
Cynthia Mills, CAE,
President.
______
The Chairman. With that, I will adjourn the hearing.
[Additional material follows.]
ADDITIONAL MATERIAL
Response to Questions of Senator Enzi by Edwin G. Foulke, Jr.
Question 1. You have been practicing labor law for over 20 years,
almost as long as OSHA has been in existence. Based on your experience,
what are the most effective ways OSHA and its State plan partners can
increase workplace safety?
Answer 1. Outreach and assistance to small employers is critical if
there is to be substantial improvement in worker safety and health in
America. Having worked with many small family operated businesses, I
know their desire to have safe workplaces but the same solutions will
not work for all types and sizes of employers. Outreach and technical
assistance, however, must be part of a comprehensive program that
includes strong enforcement.
Question 2. You were chairman of the Occupational Safety and Health
Commission, which adjudicated appeals to OSHA enforcement actions, for
5 years, from 1990 to 1995. What did you learn from that experience and
how will it inform your leadership of OSHA?
Answer 2. At the Review Commission, I found that the more input I
received, the better the decisions I made. In addition, it is important
to have measurements in place to determine if progress is being made
towards the Agency's goals. To do this, I will look to set goals for
programs or initiatives that not only are achievable, but also are
measured accurately. I also learned that there are at least two sides
to every issue and that the law must be applied consistently and fairly
in all cases.
Question 3. OSHA has a very successful track record with
cooperative programs. The Voluntary Protection Program (VPP) is OSHA's
most successful partnership program. VPP members have injury and
illness rates which are more than 50 percent below the averages for
their industries. But most of the businesses that are able to
participate in VPP are larger businesses. How can we spread the
benefits of the VPP program to smaller businesses that care just as
much about their employees' safety?
Answer 3. I concur with your sense that VPP has been highly
beneficial to participating business and their employees. VPP employers
have been proactive about workplace safety plans and workers have
benefited. If I am confirmed, I will look for opportunities to allow
small businesses to avail themselves of the benefits of cooperative
programs.
Question 4. OSHA has a standard requiring clear chemical hazard
communication to employees so that they can protect themselves from
accidents and mitigate damage if an accident occurs. I have learned
both from personal experience and through my prior tenure as
subcommittee chairman for the Employment and Workplace Safety that this
information is not presented in a way that employees can quickly and
easily understand. In fact, I think the problem is so serious that
Senator Murray and I, along with Senators Gregg, Sessions, Isakson, and
Burr, have introduced legislation requiring OSHA to publish model
Material Safety Data Sheets on their Web site for employers to follow.
Do you believe making this information available should be a top
priority for OSHA?
Answer 4. I would certainly look at the current MSDS requirements
to see if they could be streamlined. It is my understanding that OSHA
is currently working on 10 model MSDSs. If I am confirmed and if
Congress directs OSHA to create model MSDSs, I will do my utmost to
ensure that the agency complies with Congress' direction.
Question 5. Drug and alcohol testing for employees working in
safety-sensitive transportation positions is currently required by
Federal law. With that exception, whether or not to test employees is
usually a matter left to the employer, who is well-positioned to
determine the risk and, in fact, bears the cost of accidents to
employees and others that may be injured. Do you believe that an
employer should be allowed to test employees for drug and alcohol use?
Answer 5. Yes, to the extent it is done in a fair and non-
discriminatory manner.
Question 6. Do you believe that most employers understand their
rights under the Occupational Safety and Health Act? If not, would you
support giving employers the right to request a written statement
explaining those rights at the closing conference post-inspection? Such
a statement would include clear and concise information on the results
of inspection, hazards found, citations issued, explanation of
employer's right to contest and procedure for doing so, Secretary's
responsibility to with regard to penalty review, and additional appeal
options.
Answer 6. Firm enforcement has to also be fair enforcement. All
employers should be informed about OSHA procedures. The goals should
always be compliance with the law and protection for workers. I believe
good communication with employers and employees advances those goals.
Question 7. It is my understanding that OSHA's current practice is
to waive the 15 day deadline for filing a ``notice of contest'' of an
OSHA citation in cases where an employer missed it by mistake,
inadvertence, surprise or excusable neglect. Do you support this
interpretation?
Answer 7. Yes.
Response to Questions of Senator Isakson by Edwin G. Foulke, Jr.
Question 1. As you know, most of today's OSHA regulations were
written in the early 1970s. In most instances, they are standards that
were written by various standard setting bodies in the 1960s and were
incorporated by reference by OSHA during the first several years of the
administration's existence. It is my understanding that many of the
1960s standards have been updated by the standards setting bodies to
reflect either new technology or re-evaluations of risk, but that OSHA
has not acted to reflect these updates in its own regulations. What
plan, if any, does OSHA have for updating these regulations?
Answer 1. I am not aware of any specific plans OSHA has for
updating consensus standards in the future, though the Agency has done
some work in this area in the recent past. If confirmed, I will
carefully examine OSHA regulations based on consensus standards to
identify where OSHA standards should be brought up to date.
Question 2. OSHA, under Secretary Henshaw, worked to make employers
more involved with creating safer management and work practices rather
than just using the mentality of enforcement and punishment. Do you see
OSHA continuing that practice under your direction?
Answer 2. I think outreach, education, and compliance assistance
should and can work hand-in-glove with strong, fair and effective
enforcement to improve workplace safety and health. Creating a ``safety
culture'' in management is one of my goals.
Question 3. Partnerships and cooperative programs created by OSHA
are an important part of bringing the employer into the safety
equation. OSHA had in place a partnership program, the OSHA Strategic
Partnership Program for Worker Safety & Health (established in 1998)
that had proven successful by a number of participants and had improved
the safety performances of those involved. This directive was changed
in February 2005 and many in the construction industry feel that these
partnership programs are no longer viable ways to work with OSHA. The
success of the past OSHA partnerships was based between local area
offices and the businesses in their jurisdiction. Under the new
directive, reporting requirements are to the national office which has
caused excessive amounts of paperwork and an inconsistent level of
information which in turn has created a disinterest in partnership
programs. How would you improve the current partnerships and
cooperative programs within OSHA, specifically for the construction
industry?
Answer 3. If I am confirmed, I will examine all of OSHA's
cooperative programs to ensure their effectiveness and their
accessibility to all employers.
Question 4. What role does technical feasibility play in OSHA's
rulemaking procedures? If stakeholders determine that a particular rule
is, in their opinion, nearly impossible to implement, how does OSHA
take that into consideration?
Answer 4. Under the OSH Act, the agency is required to write and
enforce regulations that offer the maximum level of protection for
workers that is technologically and economically feasible. Technical
and economic feasibility of a proposed rule is one of the issues
stakeholders are asked to comment on in the rulemaking process, and
rulemaking agencies are required to carefully analyze these comments in
considering rulemaking.
Response to Questions of Senator Kennedy by Edwin G. Foulke, Jr.
Question 1. As Assistant Secretary, it would be your role to show
leadership in promoting the development of safety standards. What
standards do you think most urgently need to be addressed? What
timeline would you give us for addressing them?
Answer 1. If confirmed, I will examine OSHA's regulatory program to
identify opportunities to improve worker protections. I would look at
the hazards that cause the most injuries. Are injuries occurring
because standards are unclear or outdated? Are there new industrial
processes or machines that have caused a significant number of
injuries? If I find this to be the case, I will work to address the
situation.
Question 2. Today's workers are exposed to many chemicals and
toxins that did not exist when the OSH Act was passed in 1974. Yet
Permissible Exposure Limits (PELs) have not been updated to reflect
these developments in technology. You have previously testified before
the House Education and Workforce Committee about the need to address
this problem and you proposed different approaches toward setting
permissible exposure limits, such as establishing a streamlined process
or new statutory mechanism, or setting up a specialized task force. As
Assistant Secretary what would you do to set standards for PELs quickly
and efficiently? What timeline will you set for proposing a new
process?
Answer 2. As you know, I have in the past supported efforts to
update PELs, particularly where there is consensus among stakeholders
to do so. If I am confirmed, I will carefully examine this issue to
improve protections for workers.
Question 3. Our Nation is increasingly concerned with the problem
of highly transmittable diseases, like Avian Flu. We have already had
83 deaths and 153 cases in Southeast and Central Asia. As we saw with
SARS, healthcare workers are on the front lines in any infectious
outbreak. Worker protection needs to be part of any coordinated
response to a pandemic outbreak. Yet thus far the Department of Labor
has only issued non-binding safety and health bulletins and guidance on
the dangers to poultry and healthcare workers.
The Department of Labor's Web site references CDC guidance on the
need for individual fitted respirators to protect workers from airborne
diseases. Would you support such requirements to protect all healthcare
workers against the spread of airborne diseases, including the flu and
SARS?
Answer 3. Employers should always be encouraged to provide the
greatest possible protection for their employees from workplace
hazards. I support OSHA's General Respirator standard and fit testing
requirements. I certainly intend to learn more about the avian flu, and
if confirmed I will seek input from all stakeholders in determining
what action OSHA should take.
Question 3a. What in your view is OSHA's responsibility to protect
healthcare workers and other first responders from pandemic flu and, as
Assistant Secretary of OSHA, what specific steps would you take to
ensure that these workers are protected in the event of a pandemic? Do
you have plans for the issuance of safety standards that OSHA would
follow in the event of a pandemic?
Answer 3a. If confirmed, I will carefully examine OSHA's response
to pandemic flu, consult with the Centers for Disease Control, and
recommend whatever actions are necessary to protect workers.
Question 4. From fiscal year 2000 to fiscal year 2004 the average
dollar amount of OSHA penalties has dropped by nearly 15 percent, and
the average penalty for willful violations has dropped from over
$36,000 in fiscal year 2000 to under $30,000 in fiscal year 2004. The
average number of hours spent on safety inspections has also decreased.
And, a recent series in the Kansas City Star described multiple cases
of reductions in penalties to the point where, in half of the cases
where workers were injured or killed, employers paid less than $3,000
in fines.
These numbers have real consequences for workers and their
families. As a recent letter from Michelle Lewis, whose father-in-law,
Mike, was killed in a trench cave-in, said: ``OSHA cited Mike's
employer, B&B Plumbing, with five violations. The nine-foot trench was
not inspected or secured properly before Mike and others were sent into
it. No sloping, shoring or shielding was provided, which is required by
OSHA for any trench deeper than five feet. B&B was fined $21,000 by
Federal officials. Is this a serious consequence? Will this help
employers learn to protect their employees from harm? When thinking
about my family's loss, this fine seems disproportionate and absurdly
inadequate, but nothing can bring Mike back to us. Our pain will never
go away; neither will the images of Mike's death that haunt us. I can
only hope that people will learn from Mike's death and will take every
measure imaginable to ensure the safety of workers.''
I have attached the remainder of Ms. Lewis' letter. President Bush
has supported increasing penalties for mine safety violations. What is
your position on increasing penalties under the OSH Act? What would you
do as Assistant Secretary to review OSHA's approach to citations and to
ensure that full penalties are imposed on companies when workers are
killed because of companies' violations of safety laws?
Answer 4. OSHA recently imposed a record total of $21 million in
civil money penalties in a single case against BP in connection with
the explosion at the company's Texas City refinery. OSHA has the
capability to issue large penalties when justified, and I would
continue to exercise OSHA's ability to assess high penalties for
egregious violations of the OSH Act.
Question 4a. In many cases, there is no criminal prosecution of
companies and employers whose willful negligence leads to workers'
deaths, because criminal penalties under OSHA for causing the death of
a worker are a maximum of 6 months, or 1 year in the case of a repeat
offense. Do you believe these penalties should be increased? Would you
support legislation to increase them?
Answer 4a. If confirmed, I would work with the DOL Solicitor to
refer particularly egregious cases for criminal prosecution by the
Department of Justice. I would have to review the current cases to see
if the current criminal penalties need to be increased.
Question 5. During the first Bush administration, the Labor
Department adopted a policy for issuing substantially higher penalties
for egregious violations of the OSH Act. The Department would issue
citations and penalties for each separate instance of a violation, or
each employee exposed to the hazard. In 1995, you were part of two
opinions by the Occupational Safety Health and Review Commission
(OSHRC) that rejected this policy. In Arcadian Corporation and Hartford
Roofing, the Commission ruled that the Secretary could not fine
companies for each separate violation or for each worker put at risk. I
believe the Secretary's ability to impose multiple citations is an
important tool of OSHA enforcement. What do you think needs to be done
to preserve this approach and, if confirmed, what steps would you take
to preserve this policy for egregious violations?
Answer 5. While at Review Commission, we issued several decisions
upholding OSHA's egregious policy. If confirmed, I would not hesitate
to utilize the egregious policy in appropriate cases.
Question 6. Ergonomics is the number one worker safety problem in
America today. These injuries account for more than one-third of all
workplace injuries that result in days away from work. In 2002, the
Department of Labor announced a ``Comprehensive Plan'' to address
ergonomic issues. Under this plan, however, the Department has only
issued three sets of voluntary industry guidelines, the last of which
was completed in March 2004. For what industries do you think ergonomic
guidelines should be developed? When will you propose and plan to
finalize these guidelines if confirmed?
Answer 6. Many stakeholders have worked with OSHA to develop
ergonomics guidelines; others have chosen to develop their own
independently. If confirmed, I will direct the Agency to work with any
stakeholders who wish to develop ergonomic guidelines.
Question 7. The Department pledged that as part of its
comprehensive ergonomic plan it would enforce the general duty of
employers under the OSH Act to provide a safe workplace--which includes
preventing ergonomic injuries. Yet this Department of Labor has only
issued 17 ergonomic citations since 2001. And enforcement has tapered
off drastically--with 12 citations issued in 2003, only 4 in 2004, and
one in 2005. Would you agree that OSHA has a responsibility and the
authority to enforce standards against ergonomic hazards through the
use of the general duty clause? What are your plans to increase OSHA's
enforcement efforts to address ergonomic hazards?
Answer 7. OSHA has a clear responsibility to enforce the General
Duty Clause of the OSH Act. If confirmed, I will continue to cite
employers for ergonomic hazards where action is warranted and the OSH
Act Section 5(a)(1) criteria can be met.
Question 8. One of the duties of the Assistant Secretary is to
protect our Nation's most vulnerable workers. This includes immigrant
and minority workers. I know that the Department of Labor has an
outreach initiative to immigrant workers, and I applaud its decision to
make Spanish-language safety materials available to workers. However, I
am concerned that this is simply not enough. In 2004, the most recent
year for which we have data available, the number and rate of fatal
work injuries for Latino workers increased sharply. And the fatality
rate among foreign-born workers continues to be much higher than the
national average.
Given the growing role of these workers in our workforce, this
trend is troubling. It not only highlights failures in our safety
system and added burdens to our health system--it also places all
workers at risk. In light of these statistics, what steps would you
take as the head of OSHA to reduce this trend? What regulatory
initiatives would you propose? How would you ensure that these workers
have personal protective equipment and the safety training that they
need?
Answer 8. OSHA has already undertaken significant efforts to reach
out to Hispanic workers. I support that initiative. If confirmed, I
will examine the Agency's efforts to protect Hispanic workers, and look
for ways to improve this outreach. I would also note that OSHA
regulations in general require employers to assess the nature of
hazards their employees face and ensure their employees are using
appropriate PPE to protect them from those hazards. Many OSHA standards
require the use of specific PPE in specific situations. I am aware that
OSHA is considering a PPE requirement. If confirmed, I will review the
rulemaking record on this proposal.
Question 9. A critical part of improving immigrant worker safety is
to ensure that they report unsafe working conditions to OSHA. However,
last year U.S. Immigration and Customs Enforcement agents in North
Carolina posed as OSHA workers and conducted a ``sting'' operation to
lure workers to a safety training. The ICE agents then arrested the
workers and initiated deportation proceedings against them. Although
Secretary Chao has condemned this action, ICE recently announced their
intention to continue the practice. What would you do as Assistant
Secretary to ensure that such operations do not happen again? What
would you do to counteract the damage to OSHA's credibility and to
establish OSHA as an Agency that will fight to protect immigrant
workers?
Answer 9. If confirmed, I will do everything in my power to prevent
the use of safety-related ``sting'' operations. Secretary Chao has been
very clear that the Department of Labor does not support safety-related
``sting'' operations. If confirmed I will use the authority granted to
me by the OSH Act to protect all workers.
I will continue and try to improve upon OSHA's outreach to
immigrant communities and vigorously enforce the OSH Act.
Question 10. At your hearing you said ``outreach to small
business'' would be one of your priorities. In your testimony you refer
to both enforcement and standards as being critical to the mission of
OSHA, yet you did not discuss either of these priorities in that
testimony or in your statements before the committee. Do you think that
outreach to small business is more important than these other
priorities--more important than protecting vulnerable workers or
ensuring adequate worker training? Can you identify your other
priorities?
Answer 10. I do not believe these are mutually exclusive methods
for protecting workers. I believe outreach, education, and compliance
assistance should and can work hand-in-glove with strong, fair, and
effective enforcement to improve workplace safety and health.
Question 11. When asked about enforcement, you spoke about the need
to focus on preventing injuries and illnesses before they occur. How do
you plan to accomplish this? Under President Clinton, OSHA worked on a
safety and health program rule, which would have required employers to
have a safety and health program for identifying and correcting
hazards. Would you support such a rule?
Answer 11. Outreach, education and compliance assistance are the
most effective means to prevent injuries and illnesses before they
occur. These are also the most effective means to reach the majority of
employers who wish to comply with OSHA standards and protect their
workers. Strong, fair and effective enforcement will always be needed
to reach the minority of employers who fail to comply with the law and
protect their employees.
Response to Question of Senator Bingaman by Edwin G. Foulke, Jr.
Question. There is a longstanding problem of appalling working
conditions experienced by migrant laborers that thin brush and plant
trees in our Nation's forest. This problem was most recently
illustrated in a series of graphic investigative reports in the
Sacramento Bee. Given the long history of intermittent attention to
this persistent problem, it will take a dedicated and creative effort
to develop a lasting solution. In your view, what should OSHA be doing
to improve its oversight of and outreach on this issue? Will you commit
to work closely with Congress, OSHA's sister agencies in the Department
of Labor, the USDA Forest Service, and other relevant agencies to
ensure that these workers are adequately trained and to assure their
workplace safety and health?
Answer. Yes.
Response to Questions of Senator Murray by Edwin G. Foulke, Jr.
Question 1. Do you agree that OSHA has a major responsibility to
address ergonomics hazards in U.S. workplaces?
Answer 1. Yes.
Question 2. What are your plans to protect workers from ergonomics
hazards?
Answer 2. Many stakeholders have worked with OSHA to develop
ergonomics guidelines; others have chosen to develop their own
independently. If confirmed, I will direct the agency to work with any
stakeholders who wish to develop ergonomic guidelines.
OSHA has a clear responsibility to enforce the General Duty Clause.
If confirmed, I will continue to cite employers for ergonomic hazards
where action is warranted and the OSH Act Section 5(a)(1) criteria can
be met.
Question 3. Can you describe some legislative reforms you would
like to pursue that would help to improve OSHA's enforcement record,
while also reducing the number of injuries and deaths on the job?
Answer 3. I believe OSHA's legal authority is adequate to fulfill
its mission of protecting the health and safety of American workers.
Question 4. Do you believe OSHA should seek the authority to impose
additional criminal penalties in cases where OSHA has determined that
the violation was willful in nature?
Answer 4. If confirmed, I would work with the DOL Solicitor to
refer particularly egregious cases for criminal prosecution by the
Department of Justice. I would have to review the current cases to see
if the current criminal penalties need to be increased.
Question 5. Given the $1 billion a week that we are spending as a
Nation on workplace deaths and injuries, should OSHA be doing more--for
instance through increased inspections or enforcement--to help prevent
these staggering economic and personal costs to businesses, our economy
and of course our workers and their families?
Answer 5. We must vigorously enforce the law. We must inculcate a
``culture of safety'' among employers through outreach, education, and
technical assistance efforts. In addition, we must continue to reach
out to workers themselves.
Question 6. If you are confirmed would you reaffirm OSHA's policy
expressed in their 1994 asbestos standard requirements that brake
mechanics are at risk of asbestos diseases, including cancer from their
exposure to asbestos?
Answer 6. If confirmed, I would enforce the current asbestos
standard.
Question 7. Do you believe that dust control safeguards and worker
education programs are needed--especially given the significant imports
of asbestos brake parts into the United States?
Answer 7. If confirmed, I will examine the need for additional
training requirements regarding asbestos dust exposure levels.
Question 8. Do you believe that OSHA should propose a ban on the
use of asbestos by industry?
Answer 8. It is my understanding that while OSHA has and exercises
statutory responsibility to require employers to protect workers from
workplace safety and health hazards, OSHA does not have the statutory
authority to ban the use of a substance.
Question 9. What regulatory steps and or other actions would you
contemplate to encourage the use of substitutes for asbestos in brakes
and other uses of asbestos?
Answer 9. It is my understanding that OSHA has and exercises
statutory responsibility to require employers to protect workers from
workplace safety and health hazards. While I would welcome a substitute
for asbestos, OSHA does not have the statutory authority to engage in
research or development.
Question 10. Do you believe OSHA should move forward with a warning
label survey of asbestos-containing friction products, especially from
countries like Mexico, Colombia, China, Canada and Brazil where the
volume of export of products that contain asbestos have been rising
into the United States?
Answer 10. I am not aware of any warning label survey concerning
friction products. If confirmed, I will examine the issue and confer
with other Federal agencies that may have a role to play.
Question 11. If confirmed will you support the release of a PPE
rule that says employers should pay for protective clothing for their
workers while on the job?
Answer 11. If I am confirmed, I will examine the Agency's efforts
to protect Hispanic workers, and make any changes I feel are needed. I
would also note that OSHA regulations in general require employers to
ensure that employers assess the nature of hazards their employees face
and ensure their employees are using appropriate PPE to protect them
from those hazards. Many OSHA standards require the use of specific PPE
in specific situations. I am aware that OSHA is considering a PPE
requirement. If I am confirmed, I will review the rulemaking record on
this proposal.
Response to Questions of Senator Enzi by Richard E. Stickler
Question 1. A 2003 Government Accounting Office report noted that
44 percent of MSHA inspection personnel would be eligible for
retirement in the next 5 years. If confirmed, how would you propose to
address the anticipated loss of experienced MSHA personnel?
Answer 1. It is my understanding that MSHA has already initiated
vigorous efforts to recruit new staff and already has a substantial
supply of candidates who have expressed an interest in working for
MSHA. I also understand that MSHA recruitment efforts like local job
fairs draw strong interest. I would work to continue these efforts as
well as pursue other ideas for attracting qualified applicants for
MSHA. I believe strongly that we must encourage a spirit of
professionalism and pride in this critical agency.
Question 2. Much like MSHA personnel, the mining workforce itself
is aging as well. One frequently quoted estimate is that the average
age of current mine workers is 52. What do you believe should be the
respective roles of MSHA, State mine safety and training agencies, and
the industry in making sure that mining does not suffer an ``experience
drain,'' and that we preserve the accumulated knowledge and expertise
of the mining workforce?
Answer 2. I believe we can best contribute by improving safety and
health. Prospective miners will not choose this occupation if they
believe doing so will jeopardize their safety and health. MSHA, the
States, operators, miners and other stakeholders must all work together
to ensure that new miners are adequately trained. I was recently
pleased to see that the Labor Department is supporting coal miner
safety and skills training in several States.
Question 3. Do you think that MSHA's post-accident investigatory
procedures should be modified; and, if so, how?
Answer 3. MSHA's current investigatory procedures are geared toward
finding the root cause of an accident, determining if violations of
MSHA regulations contributed to that accident, determining appropriate
citations of those violations, and assessing whether any regulatory or
policy changes could prevent a similar accident in the future. I
believe these are reasonable goals for any accident investigation. At
this time, I am not certain that any changes are needed, but I would
listen to any comments or suggestions others may have.
Question 4. In the aftermath of the two mine tragedies in West
Virginia there has been considerable discussion regarding the use of
technology to enhance mine safety, would you share with the committee
your views on the importance of safety related technology, the utility
of currently available technology, and how, if confirmed, you would
insure that the best technology is available to all miners?
Answer 4. It is critically important for MSHA and all agencies
responsible for the safety and health of miners to push the
implementation of technology that could save miners' lives. As
administrator of the Bureau of Deep Mine Safety in Pennsylvania, I
worked with the National Institute for Occupational Safety and Health
(NIOSH) to test safety technologies in realistic mine settings. I
believe the leadership of an organization like BDMS or MSHA must do
everything possible to ensure that the most effective currently
available safety technology is utilized.
Question 5. Understandably, the recent emphasis has been
underground coal mining. MSHA's jurisdiction, however, extends to other
mining operations as well, such as surface mining, metal and non-metal.
What issues do these different types of operations have in common and
what are their differences? How should this be reflected in regulatory
efforts?
Answer 5. MSHA's regulations reflect the fact that different types
of mining entail different safety and health challenges. This is
reflected in the fact that the Agency itself has two major components
for enforcement, the Coal Directorate and the Metal/Non-Metal
Directorate. The Agency has a distinct body of regulations for each of
these major sectors, as well and different regulations to cover the
unique hazards associated with surface mining as opposed to underground
mining. For example, underground coal mines have critical methane, coal
dust and roof control issues and many underground metal and non-metal
mines rely on natural ventilation. On the other hand, in some aspects
all types of mining are similar and entail similar hazards like use of
heavy equipment operating in a harsh and confined environment. MSHA's
regulatory efforts must take account of the similarities and
differences between and among the various types of mining to have an
effective regulatory regime.
Question 6. As the former head of a State mine safety agency, does
MSHA in your view coordinate well with State agencies and what if any
changes would you suggest to improve those joint efforts?
Answer 6. As the former head of a State mine safety agency, my
relationship with MSHA was positive. I worked closely with MSHA
District Managers to complement our efforts, provide consistency, and
build team work. If confirmed as head of MSHA I would continue to
promote these same positive relationships.
Question 7. Small mines have a unique set of issues and concerns,
including the practical difficulties of having rescue teams permanently
on site. Does the current system of requiring that a rescue team be on
call and able to arrive on site within 2 hours work well enough?
Answer 7. Mines, particularly small ones, tend to be found in rural
and remote locations. This can make the kind of specialized response
required in an emergency difficult. However, we must do all we can to
improve response times. I do support prompt notification of MSHA if
there is an accident and a quick response by rescue teams when they are
called upon.
Response to Question of Senator Isakson by Richard E. Stickler
Question. In 2004, the last year of available statistics, MSHA
imposed $8,450 of fines per coal mine, compared to only $5,650 per coal
mine at the end of the previous administration. In your opinion, does
the rise in the number of mine citations mean that American coal mines
are getting more dangerous or does it mean that our mines are just
being scrutinized that much better?
Answer. The statistics you cite could indicate more efficient and
effective enforcement by MSHA or it could indicate that the average
mine is larger with more hazards that would be cited in an inspection.
Given steadily falling accident and fatality rates in recent years, I
do not believe it is indicative of more dangerous mines.
Response to Questions of Senator Hatch by Richard E. Stickler
Question 1. Mr. Stickler, you have extensive experience in the
mining industry spanning 37 years. Can you think of any ways to provide
multiple hours of oxygen to miners without introducing a new
potentially explosive hazard into the mine environment?
Answer 1. Self-Contained Self-Rescuers (SCSRs) have been found to
be a safe and effective way for miners to have breathable air to allow
them to escape from a mine when the air in that mine becomes
unbreathable. As a coal mine manager, I directed the strategic storage
of SCSRs throughout the mine, even though it was not required, for the
purpose of helping miners escape in the event of a fire or explosion.
This may be a reasonable, readily available way to improve odds of
survival for miners in such a situation. However, miners should be
thoroughly trained to evacuate the mine unless escape is physically
blocked.
Question 2. Are there any Mine Safety and Health Administration
(MSHA) certified totally wireless communication systems available for
underground mines? Are there any that have been submitted for
certification?
Answer 2. I don't know of any wireless two-way communication
systems that will allow communication between the surface and
underground that are certified and are currently available. There are
one-way communication systems that allow messages to be sent from the
surface to the underground. These one-way systems have proven to work
in some U.S. underground mines.
Response to Questions of Senator Kennedy by Richard E. Stickler
Question 1. Since President Bush took office in 2001, MSHA has
removed at least 17 mine safety items from its regulatory agenda,
including items on mine rescue teams, breathing devices, escape routes,
miner training, and investigation and hearing procedures. What safety
standards would you make a priority as Assistant Secretary, by acting
upon them during 2006? What timeline would you set for implementing
other standards?
Answer 1. If I am confirmed by the Senate, I will reconsider the
regulatory proposals withdrawn from the regulatory agenda to determine
whether any should be reinstated. I will also be open to new ideas for
improving mine safety and health protections.
Question 2. The Alma Mine fire has focused attention on the use of
conveyor belt air to ventilate working areas of the mine. This practice
was largely prohibited prior to a 2004 MSHA regulation that allowed the
widespread use of such ventilation plans. West Virginia Governor
Manchin has called for a prohibition on this practice. Do you intend to
rescind the regulations that permit the use of the belt entry air to
ventilate mines? If not, why not?
Answer 2. The Alma Mine fire is still under investigation. It is
unclear at this point how that fire started. Certainly if it is shown
that use of belt air caused the fatalities, I would reevaluate the
standard.
Question 3. Exposure to high levels of diesel fumes, such as those
experienced by underground miners, greatly increases the risk of heart
disease, lung cancer and other serious illnesses. MSHA has a regulation
limiting miners' exposure to diesel fumes which was scheduled to take
effect in January 2006. However, the Agency has proposed delaying this
regulation until 2011. If confirmed as Assistant Secretary, would you
fully implement the diesel particulate matter regulation, or would you
delay this much needed standard? Why would you choose such delay, in
light of the lengthy record of evidence showing the serious health
hazards that are engendered in exposure to diesel fumes, particularly
at the level that miners are exposed?
Answer 3. I am unfamiliar with the Agency's reasons for this delay.
If confirmed, I will review the matter.
Question 4. The Mine Safety and Health Act requires that ``mine
rescue teams shall be available for rescue and recovery work to each
underground coal or other mine in the event of an emergency,'' but
regulations permit rescue teams to be within 2 hours travel time and to
be secured by contract. This interpretation leads to delay in rescue
teams' arrival and a lack of rescuers familiar with a mine's layout. As
Assistant Secretary would you require onsite mine rescue teams that are
familiar with the mine? You expressed concern at the HELP Committee
hearing that small mines should not have to comply with such a
requirement. What about larger mines, and how large do you believe a
mine should be before having to maintain an onsite rescue team?
Answer 4. We must do all we can to improve response times. The
feasibility of an on-site mine rescue team would be largely determined
by the number of employees at a mine who are willing to volunteer.
However, if confirmed, I will examine the feasibility of on-site mine
rescue teams and will also closely examine ways that we can improve
mine rescue response.
Question 5. In March 2002, as head of the Pennsylvania Bureau of
Deep Mine Safety, you stated, ``Membership on mine rescue teams has
been a very dynamic process with many experienced mine rescue members
retiring or no longer participating as team members. This loss of
experience and the lack of readily available and interested miners to
take their place has been dramatic.'' What do you plan to do about the
``dramatic'' loss of experience and availability of mine rescue
workers?
Answer 5. Mine rescue teams are voluntary organizations, and they
draw their members from the ranks of active miners. Given the mining
industry's vastly improved productivity, the pool from which mine
rescue teams are drawn is growing smaller. I believe MSHA, industry,
and organized labor can work cooperatively to encourage and recruit
miners to participate in mine rescue teams. As Director of the
Pennsylvania Bureau of Deep Mine Safety I worked hard to promote mine
rescue training and preparedness. I attended mine rescue training
exercises, where I traveled underground with the State trained teams in
smoke filled entries and participated in the evaluation of the teams
and new technology for mine rescue. I sponsored and participated in
mock mine emergency training exercises where mine rescue teams, mine
managers, miners representatives and agency personnel role-played in a
rescue plan. I supported and attended local, State and national mine
rescue competitions where I communicated and demonstrated how special I
believe mine rescue individuals are. All of this helped instill pride
and confidence in the mining community and motivated others to
participate in mine rescue. As head of MSHA I would continue to promote
mine rescue preparedness through commitment and personal example.
Question 6. The Sago and Alma mine tragedies raised concerns about
the procedures used in the investigation of mine accidents. The Mine
Safety Act permits representatives of the company and the workers to be
present during witness interviews, a practice unlike those used in
other investigations. How would you ensure that witnesses feel free to
speak candidly? How would you protect witnesses in accident
investigations from retaliation?
Answer 6. Protecting the integrity and objectivity of an
investigation is extremely important if that investigation is going to
determine the root cause of an accident and any violations that may
have occurred. I understand that a miner may request a confidential
interview, in which case no one other than Agency investigators will be
present. I support that right for miners. I would vigorously protect
the rights of miners against retaliation as well as do my best to
protect the integrity of accident investigations.
Question 7. Communications systems that warn miners or guide them
to safety above ground are of critical need. Australia uses Personnel
Emergency Devices (PEDs) that allow people outside the mine to send
messages to miners deep underground. Only a handful of U.S. mines use
them, even though they helped save the lives of 46 miners trapped by
fire at the Willow Creek Mine in Utah in 1998. Would you recommend that
we require these devices in America's mines?
Answer 7. I would recommend the use of any communication devices in
any mine where they can be used safely and effectively. The PEDS device
has provided one-way communication from the surface to underground
areas in some mines under specific conditions. I understand MSHA has
initiated a technical evaluation of existing communications systems to
determine their effectiveness and limitations. I would look forward to
reviewing the results of this evaluation to see what could be effective
and reliable in underground coal mines.
Question 8. Some mines use tracking systems where each miner wears
a device that sends signals to computerized beacons placed throughout
the mine. As Assistant Secretary, do you think we should require the
use of such devices in mines?
Answer 8. I support the development of effective communications
technology for use in coal mines. We must recognize the inherent
limitations, however, of technology that relies on placement of wires
or electronics inside a mine. MSHA has initiated a technical evaluation
of existing communication systems to determine their effectiveness and
limitations. I would look forward to reviewing the results of this
evaluation to see what could be effective and reliable in underground
coal mines.
Question 9. When you were Senior Manager of the Eagle's Nest Mine
in Van, West Virginia, its injury rate was three times the national
average. Three miners died in mines under your supervision, including
two at Mine 84 in Pennsylvania. During the time you ran the Marianna
Mine, the injury rate rose dramatically and, in 1987, was several times
higher than it had been in 1984. Do you think these safety records are
indicative of your level of care for miners' safety? How do you explain
these fatality and injury rates that were well beyond the national
norms?
Answer 9. During my career I managed numerous mining operations.
Almost all had very good safety records, and those that didn't had a
high accident rate before I was assigned to take over their management.
According to MSHA data, injury rates at the mines I managed generally
improved during my time as a mine superintendent, and injury rates at
those mines compared favorably to those at other underground coal mines
in Pennsylvania, where most of the mines I managed were located. The
injury statistics at Marianna Mine and at other Pennsylvania
underground coal mines increased between 1984 and 1987 due to an MSHA
initiative to improve reporting of injuries and accidents. At Eagles
Nest, NFDL (non-fatal days lost) rates rose during my first year there
due to my policy that accidents be properly reported in accordance with
MSHA requirements. However the NFDL rate dropped during my second and
final year. MSHA data show a decrease in injury rates at mines
regulated by the Pennsylvania Bureau of Deep Mine Safety during my
tenure as Director. The fatalities that occurred at Mine 84 are tragic
and regrettable, as are all mine fatalities. Mine safety professionals
seek to learn from these incidents to avoid them in the future. As I
noted at my confirmation hearing, I worked as a rank-and-file miner and
served as captain of a mine rescue team. My concern for the safety and
health of miners comes from first-hand experience.
Question 10. Reports by MSHA and the Pennsylvania Department of
Environment Protection blamed the Quecreek Mine accident on outdated
maps, and a Pennsylvania grand jury found that the system of regulating
underground coal mines was inadequate and antiquated. Numerous media
accounts have indicated that officials long knew that unmapped ``mine
voids'' were a problem. Were you aware of this problem and, if mapping
was such a known and serious concern, why didn't you take action to
address it?
Answer 10. Voids left by old unmapped mines have long been
recognized as a problem. The standard approach of MSHA and Pennsylvania
was to require advance drilling when maps showed that new mining was
approaching another underground mine. This requirement recognized the
potential inaccuracy in old maps but was obviously insufficient. I took
action as Director of BDMS to extend the distance at which drilling was
required. If confirmed, I would support continued efforts by MSHA and
State agencies to digitize and centralize access to mine maps.
Question 11. While you led the Pennsylvania BDMS, you granted a
number of variances to general safety requirements to individual mines.
One of the areas in which you did this was with respect to the general
requirement that mine conveyor belts be isolated. Didn't this increase
the possibility that conveyor belt air could spread fires and hazardous
fumes throughout the mine? Can you tell us why you granted such
variances?
Answer 11. The Pennsylvania Mine Act does not specifically address
the isolation of the belt entry or the use of belt entry air to
ventilate the face. Historically many mines did not isolate the belt
entry. There had been controversy and inconsistent interpretation of
this issue. After I became Director, I issued an interpretation that
required mines that did not isolate the belt entry to submit a variance
plan which included, among other safety precautions, the use of carbon
monoxide monitoring and early warning systems that were not otherwise
required by the act. The end result of this process was enhanced safety
and protection that a belt entry fire would be detected at the earliest
possible time and before a fire could reach a level that would prevent
the escape of miners.
Question 12. Budget shortages have contributed to a reduction in
the number of professionals dedicated to coal enforcement, which has
dropped from 1,233 in 2001 to 1,043 in 2005, a 15 percent reduction.
The administration's fiscal year 2007 budget request for coal
enforcement under MSHA is still 9 percent below budget levels, adjusted
for inflation, at the start of this administration. Do you think that
more coal safety enforcement staff is necessary? If so, in what jobs
specifically do you plan to add staff?
Answer 12. If I am confirmed, I will carefully examine all aspects
of the Agency's operations, including but not limited to staffing in
the Coal Directorate, to ensure the agency has adequate resources to
carry out its mission.
Question 13. MSHA fined the Jim Walters Mine in Alabama $435,000
for infractions associated with the explosion and fire that killed 13
miners but, unbelievably, an administrative judge reduced these fines
to a mere $3,000. All too often, MSHA sees penalties reduced through
appeals. Are you concerned about the ability of these review
commissions to reduce fines in this manner? Do you believe that the
Secretary should have the authority to set these fines and make them
stick?
Answer 13. I agree that the reduction of the penalty in the case of
the JWR accident was not appropriate. I understand that the Department
is appealing this reduction.
Response to Questions of Senator Clinton by Richard E. Stickler
Question 1. In the past month alone, we have seen two tragedies
that have resulted in the deaths of 14 experienced miners. In its first
few years, the Bush administration dropped more than a dozen proposed
health and safety regulations left over from the Clinton
administration. Since January 2001, Bush political appointees at MSHA
have withdrawn or delayed final action on 18 mine safety rules. Three
of these rules may have had the potential to speed the rescue and
increase the chances of survival for the 14 miners killed in the recent
West Virginian disasters. Can you tell the committee how you would
spearhead efforts to increase safety conditions for our Nation's
miners?
Answer 1. If confirmed by the Senate, I would reconsider the
regulatory proposals dropped from the regulatory agenda to determine if
any should be reinstated.
Question 2. On September 4, 2002, the Bush administration withdrew
a Mine Rescue Team regulation specifically aimed at increasing
prevention and preparedness. The regulation proposed financial
incentives for mine operators to establish two fully trained and
equipped mine rescue teams onsite. The stated reason for the withdrawal
said, ``We have increased the number and improved the quality of the
mine rescue teams available to assist miners in life threatening
emergencies.'' MSHA logs show that the first call from the Sago Mine to
MSHA personnel at home came at approximately 8:10 a.m and it took 20
minutes to locate a MSHA representative who could respond to the
crisis. It took an additional 2 hours for this member to arrive onsite.
Given this information, what is your stance on the Federal regulation
that allows MRTs to be considered ``available'' if they are ``within 2
hours of the mine?'' Do you think this is appropriate? Do you think the
decision to withdraw the regulation I described was appropriate?
Answer 2. I am not familiar with the agency's reasons for
withdrawing this agenda item. If confirmed, I will examine ways we can
improve mine rescue response. I also believe MSHA should be promptly
notified in the event of an accident.
Question 3. In addition to delayed rescue efforts, mine-safety
experts have identified inadequate oxygen supplies as a possible factor
in the deaths of the 12 miners at Sago. Am I correct that there is
currently no MSHA requirement that coal operators store additional
oxygen units underground? Do you think there should be one?
Answer 3. As a coal mine manager, I directed the strategic storage
of SCSRs for the purpose of improving the odds that miners could have
adequate air to escape in the event of a fire or explosion. This may be
a reasonable, readily available way to improve odds of survival for
miners in such a situation. In addition, we should not lose sight of
the primary reason for oxygen units (SCSRs) underground, and that is to
escape from the mine in an emergency. This is especially critical in
underground coal mines where smoldering fires can produce large amounts
of carbon monoxide or following a methane explosion that may generate
secondary explosions.
Question 4. Under the Clinton administration, MSHA posted a
proposed rule-making regarding revised coal mines standards on self-
rescue devices in order to allow miners adequate time escape to the
surface or a safe location in case of an emergency. This proposed
rulemaking also called for manufacturer expiration dates and periodic
inspections to ensure fully functioning SCSRs. The standards were
withdrawn in September of 2001, ``in light of resource constraint and
changing safety and health regulatory priorities.'' What resource
constraints are so great that they inhibit MSHA from providing miners
with adequate SCSRs?
Answer 4. I am not familiar with the reasons for its withdrawal. I
have recently learned that MSHA is considering an Emergency Temporary
Standard on this subject. If confirmed, I will reconsider the proposal
and determine if it should be reinstated on the regulatory agenda.
Question 5. Yet another Clinton administration requirement
withdrawn by the Bush administration would have required mines to
purchase conveyer belts with improved flame test and approval standards
after 1 year. This decision directly contradicts a study by the
National Institute for Occupational Safety and Health which highlighted
the incredible speed of flame propagation on conveyer belts and its
critical role in mine fires. Today's only existing standard measures
burn time and its outdated. As we now know, the Alma accident occurred
when a coal conveyer belt caught fire. Do you support changing these
safety standards?
Answer 5. The Alma Mine fire is still under investigation. It is
unclear at this point how that fire started. If it is shown that the
use of a more fire resistant conveyor belt would have prevented the
fire I would, if confirmed, reconsider the issue of requiring improved
belting.
Question 6. On Monday, January 29, 72 Canadian potash miners were
rescued from an underground fire after being locked down overnight in
airtight chambers packed with enough oxygen, food and water for several
days. The success of this rescue is largely attributed to these
chambers, extensive training of rescue workers and uninterrupted
communication. Davitt McAteer, head of the U.S. Mine Safety and Health
Administration under former President Bill Clinton, called the Canadian
rescue success a, ``textbook recovery.'' According to McAteer, there
are no such chambers in U.S. mines, because in the late 1970s, the U.S.
Government determined there was no material strong enough to withstand
the secondary explosion. Since then, he said, the National Aeronautics
and Space Administration and the Defense Department have created
stronger materials. Are Mr. McAteer's assertions correct? If NASA and
the Department of Defense have created materials that could draw upon
the success of this recent Canadian success, would you support
constructing similar safety chambers in our mines?
Answer 6. I think refuge chambers can be effectively used and
practically employed in many situations and I believe we need to look
carefully at expanding their use in this country. I would certainly
review the information that NASA and DOD have developed about new
materials that increase the feasibility of such chambers.
Question 7. Governor Manchin and the West Virginia State
legislature took immediate action to prevent tragedies like Sago from
ever happening again. In an overwhelming showing of bi-partisan unity,
the legislature unanimously passed legislation, deliberating for just 1
day, to protect workers by improving the safety in WV's mines. This
bill takes a number of important steps--it directs the director of
Homeland Security and Emergency Management and the Office of Miners'
Health, Safety and Training to create a 24-hour, 7 day-a-week emergency
operations center operated by the Division of Emergency Services; it
requires mine operators to provide caches of self-rescue devices in
mines; it requires each and every miner underground to be equipped with
wireless emergency communication devices; and it mandates that miners
be equipped with wireless tracking devices capable of providing real-
time monitoring of the physical location of each person under ground.
The bill also creates felony criminal offenses for removing or
tampering with any of the safety devices required as part of the
legislation. Officials in Ohio, Utah, Kentucky, Illinois and
Pennsylvania are considering similar commonsense safety proposals. Do
you support a Federal bill modeled after the West Virginia proposal? If
not, what aspects of it do you oppose?
Answer 7. We should ensure that miners have adequate supplies of
breathable air to allow them to escape the mine in the event of an
accident. As a coal mine manager, I directed the strategic storage of
SCSRs for the purpose of improving the odds that miners could have
adequate air to escape in the event of a fire or explosion. I would
also support deployment of any available and effective communication
technologies that could improve communication among miners, between
miners and the surface, and miners and rescuers. I also support prompt
notification of MSHA when there is an accident.
Question 8. Senator Specter held a hearing in his Labor
Appropriations Subcommittee in which he said he would fight for Federal
legislation that would stiffen penalties against coal operators that
violate safety rules and would require that up-to-date safety equipment
be placed in mines. Senator Specter also called for an end to a
practice in which operators can reduce the fines they pay through an
appeals process, and endorsed imposing a fee on coal operators to be
used for new safety equipment. Are these ideas that make sense, from
your perspective?
Answer 8. The administration has proposed to increase the maximum
civil money penalty the Agency may impose to $220,000 for flagrant
violations, and I support this. If I am confirmed, I will do all I can
within the Mine Act to ensure that penalties assessed for violations of
the Mine Act and MSHA regulations are effective and fairly imposed. I
would also review the adequacy and effectiveness of MSHA's current
penalty structure. The right to appeal penalties is incorporated in the
Mine Act, which is Congress' prerogative to change.
Question 9. MSHA is still using data obtained in 1972 to regulate
the maximum levels of substances, such as methane, workers can be
exposed to for 8 hour periods even though technology has advanced
significantly. Do you support updating this research to ensure that the
levels of chemicals American workers are exposed to on a daily basis
are safe?
Answer 9. Yes. MSHA regulation and enforcement should always be
based on the best available science.
Question 10. Current penalties on mine violations are derived from
a formula that considers a number of factors including a mine's
financial standing, the number of violations it has incurred, etc.
According to the Washington Post: ``Two winters ago, what had been a
mediocre safety record at West Virginia's Sago Mine grew dramatically
worse. Over 23 months beginning in February 2004, two dozen miners were
hurt in a string of accidents, some of them caused by rock chunks
falling from the mine ceiling. Federal safety inspectors slapped the
mine with citations 273 times, or an average of once every 2\1/2\ days.
Despite this record, the price paid by Sago's operators was light.
Government regulators never publicly discussed shutting down the mine
and never sought criminal sanctions. The biggest single fine was $440,
about 0.0004 percent of the $110 million net profit reported last year
by the mine's current owner, International Coal Group Inc.'' Given this
abysmal oversight, do you think the formula yields appropriate
penalties on mines? Are updates necessary to ensure that penalties
serve as effective deterrents in mine maintenance?
Answer 10. The administration has proposed to increase the maximum
civil money penalty the Agency may impose to $220,000 for flagrant
violations, and I support this. If I am confirmed, I will do all I can
within the Mine Act to ensure that penalties assessed for violations of
the Mine Act and MSHA regulations are effective and fairly imposed. I
would also undertake a review of the formula for assessing penalties.
Question 11. Much of the focus in the aftermath of the tragedies in
Pennsylvania and West Virginia suggest that improved technology could
have saved miners' lives. What innovations, in your opinion, are most
necessary to implement if you take office?
Answer 11. If I am confirmed, I will do everything in my power to
ensure that miners and mine operators have access to and utilize the
best and most effective technology available to improve the safety of
miners. These may include, but may not be limited to, improvements in
breathable air supplies for miners seeking to escape from toxic
atmospheres, and improved communications among miners, between miners
and rescuers, and between miners and the surface.
Question 12. Current law mandates each miner have two separate
means of communication when underground. Despite available text
messaging technology that recently saved 45 workers in Utah, most mines
criticize this technology as it employs one-way messaging. New walkie
talkies are effective for approximately 1,000 feet. This sort of
technology could be easily implemented and holds the potential to save
lives in the event of an emergency. Why haven't these technologies been
given to miners and would you champion a proposal to ensure that they
are?
Answer 12. I would support the use of any technology that can
effectively improve communications among miners, between miners and
rescuers, and between miners and the surface. If confirmed, I would
work to develop better communications technology.
Response to Question of Senator Bingaman by Richard E. Stickler
Question. Since 1977, the Mine Safety and Health Administration
(MSHA) has investigated 21 coal mine disasters claiming 158 lives. I
understand that many of these miners were lost because rescue efforts
were hampered by cut or burned telephone cables, or trapped miners were
unable to reach these telephones. In too many instances, wired
telephone systems have contributed significantly to the loss of life,
including the recent tragedy at Sago Mine. Current MSHA regulations
only require wired telephones or trolley phone facilities. I believe
with available technologies, these tragedies could be avoided.
Would you address this issue, and, provide your opinion on whether
the Federal Government should mandate the deployment of wireless mine-
wide radio communications and tracking systems in each underground
mine.
Answer. I intend to support the deployment of technology that can
improve communication for underground miners. If such technology exists
and is effective, I would support its use and would consider a
requirement for it.
Response to Questions of Senator Murray by Richard E. Stickler
Question 1. Can you please comment on whether you think our Federal
mine safety laws also need to be swiftly updated to incorporate some of
the specific provisions enacted in West Virginia, including improved
communication and locator devices for miners, oxygen supply tanks
stationed throughout the mine and mine rescue teams that are onsite, as
opposed to 2 hours away.
Answer 1. I believe it is appropriate to ensure that miners have
adequate supplies of breathable air to allow them to escape hazardous
conditions. As a coal mine manager, I directed the strategic storage of
SCSRs for the purpose of improving the odds that miners could have
adequate air to escape in the event of a fire or explosion. I would
also support deployment of any available and effective communication
technologies that could improve communication among miners, between
miners and the surface, and miners and rescuers. And of course, I
support measures that would facilitate the earliest possible emergency
response such as the prompt notification of MSHA in the event of an
accident. If confirmed, I will examine the feasibility of onsite mine
rescue teams and will also closely examine ways that we can improve
mine rescue response.
Question 2. Do you not think there is any value in amending the law
to provide a biting minimum penalty for significant and substantial
violations?
Answer 2. The administration has proposed to increase the maximum
civil money penalty the Agency may impose to $220,000 for flagrant
violations, and I support this. If I am confirmed, I will do all I can
within the Mine Act to ensure that penalties assessed for violations of
the Mine Act and MSHA regulations are effective and fairly imposed. I
would also review the adequacy and effectiveness of MSHA's current
penalty structure.
Question 3. What about for mines with a certain number of
withdrawal orders over a period of a year?
Answer 3. If confirmed, I will examine the agency's penalty
structure to see if some linkage between closure orders and penalties
would be appropriate.
Question 4. How about amending the law to eliminate the discretion
of the Agency and the Commission to consider various adjustment factors
where the operator has a bad record or where the accident is serious?
Answer 4. As you know, MSHA penalties are assessed using six
statutory factors; among these are the operator's history of violations
and good faith in correcting hazards. If I am confirmed, I will examine
the weight given to these various statutory factors in assessing
penalties.
Question 5. What do you think of tightening up the collection
requirements so that mine operators are never tempted to become
scofflaws?
Answer 5. It is my understanding that MSHA has a regular collection
program it uses for operators whose penalties are overdue that follows
the procedures under the Debt Collection Act. MSHA recently filed a
complaint against several coal mine operators that asks that the
operators be enjoined from failing to pay penalties for future
violations of the Mine Safety and Health Act and be required to post a
bond with the court to guarantee future compliance with the law.
Question 6. It is apparently the legal position of the Department
that it can simply drop items on its regulatory agenda without public
notice if those items have not yet reached the proposed rule stage?
Would you pledge to provide public notice, and a substantive
explanation, for any item dropped from the agenda while you are
Assistant Secretary?
Answer 6. I am not familiar with the requirements of Federal law
with respect to rulemaking processes or setting the regulatory agenda,
which I would familiarize myself with if I am confirmed. I would
certainly observe all legal requirements for notice and comment.
Question 7. MSHA is currently in the process of gathering
information about certain devices used in the United States and other
countries to improve the chances of survival of underground miners
following an accident. One of these devices is a safety chamber, where
the miners can seek refuge until rescue is possible. Although many
mines have such devices, and they are considered feasible for
underground U.S. coal mines by the mining industry, a senior MSHA
official was recently quoted as saying the devices were not suitable
for such use. Can you tell this committee whether its seriously looking
at requiring U.S. mines to adopt such devices, or has the agency
already made up its mind?
Answer 7. I think refuge chambers can be effectively used and
practically employed in many situations, and I believe we need to look
carefully at expanding their use in this country. I would certainly
review the information that NASA and DOD have developed about new
materials that increase the feasibility of such chambers.
Question 8. The bill introduced recently by Senator Byrd and
Rockefeller provides that MSHA will regularly review its existing
regulations to ascertain if they should be updated in light of new
technological developments. How often do you think it would be
appropriate to conduct such a review?
Answer 8. MSHA regulation and enforcement should always be based on
the best available science. I would support periodic reviews of MSHA
regulations.
Question 9. Would you pledge to conduct such a review yourself
during your first year of office, to give the public an opportunity to
participate in such a review, and to notify the public and the Congress
of the result?
Answer 9. MSHA would be required to seek stakeholder input in any
revision of regulations. If I am confirmed I will ensure that the
process is followed. I also believe that the public is a source of
ideas. I would welcome constructive suggestions. I would commit to
beginning such a review, but finishing it may not be achievable in 1
year.
Question 10. I am greatly troubled by reports that although the
Mine Act specifically mandates certain practices, and bans others, that
MSHA has ignored those mandates in recent rulemaking actions. It has
recently been reported, for example, that the act requires the
availability of underground safety chambers, and bans the practice of
belt air. Can you comment on these specific assertions, and give this
committee your assurances that MSHA will follow the law under your
administration?
Answer 10. If I am confirmed, it is my intention to vigorously
enforce the Mine Act. As I have mentioned above, I support the use of
refuge chambers wherever it is practical to do so. It is my
understanding that for many years, MSHA has granted variances to allow
the use of belt air, and this is a common practice in mining. I would
need to look into the specific question you raise concerning apparent
inconsistencies. I assure you that I intend to follow the law.
Question 11. I want to ask you specifically about section 101(a)(9)
of the Mine Act. This provision of the law provides that:
``No mandatory health or safety standard promulgated under this
title shall reduce the protection afforded miners by an existing
mandatory health or safety standard.''
It now appears that this administration does not intend to honor
this important statutory obligation. In September 2005, MSHA proposed
delaying the implementation of an important health standard for 5 full
years notwithstanding this provision. In fact, MSHA expressly asserted
that delaying implementation for 5 more years would not violate this
provision of the statute.
Can you promise this committee that you will uphold the plain
meaning of section 101(a)(9) of the Mine Act, and that you will
personally revisit the Department's September 2005 conclusion that a
delay in implementing the final limit under this (Diesel Particulate
Matter) rule does not violate the act?
Answer 11. I am not familiar with the Agency's reasons for a 5 year
phase-in of the Diesel Particulate Matter rule. If I am confirmed, I
will review the issue, including the record of the rule and the
arguments both supporting and questioning this action.
Question 12. If your nomination is approved by this committee, will
you stop the delays and allow the final (DPM) limit to go into effect
to protect the health of miners at all the covered mines?
Answer 12. I am not familiar with the Agency's reasons for a 5 year
phase-in of the Diesel Particulate Matter rule. If I am confirmed, I
will review the issue, including the record of the rule and the
arguments both supporting and questioning this action.
Question 13. Do you think that if your nomination is approved, you
can ensure that MSHA operates in an independent manner, free of
inappropriate influence from the mining industry?
Answer 13. If I am confirmed, I pledge to perform my duties at MSHA
with honesty and integrity. I served for 6 years as the regulator for
the underground mining industry in one of the largest coal mining
States in the Nation. I believe that during that time, I conducted the
Agency's affairs with honesty and integrity. I am proud that injury
rates fell each year I ran that Agency. I have been retired since 2003
and expect to return to retirement after my service at MSHA.
Question 14. Can you provide me with specific examples of steps you
intend to take to reverse the Agency's recent trend of relying on
voluntary compliance with the industry and issuing fewer and less
significant fines, without taking any steps toward protecting the
health and safety of miners?
Answer 14. As I said at my confirmation, I believe most of the
accidents that have occurred in my memory happened because the law and
regulations were not followed. That indicates a clear need for strong,
fair, and effective enforcement. Strong enforcement can be
appropriately supplemented with outreach training and technical
assistance. I would use all these tools to prevent violations of the
law and regulations and to prevent accidents before they occur. If
confirmed, I also plan to review the agency's penalty and assessment
procedures and formula.
Questions of Senator Harkin for Richard E. Stickler
Question 1. What steps will you take to expedite the research of
two-way technology that would allow for communications between miners
and rescuers above ground in accident situations?
Question 2. How would you use your platform in this position to
influence the improvement of air supply technology that would prolong
the amount of time miners can be exposed to high levels of carbon
monoxide without suffering debilitating injury or loss of life?
Question 3. As these technologies are developed, how will you push
industry to make their use more prevalent?
Question 4. Using the Sago Mine as an example, do you believe the
fines companies have been assessed for safety and health violations in
the last year have been sufficient to encourage companies to quickly
correct those violations and deter them from lax future enforcement of
safety regulations?
Questions of Senator Harkin for Edwin G. Foulke, Jr.
Question 1. Employer Payment for Personal Protective Equipment--I
am concerned over OSHA's inaction on the regulation concerning Employer
Payment for Personal Protective Equipment (PPE). This rule, undertaken
in 1999, makes clear that employers are required to pay for equipment
that protects workers from workplace hazards that cannot otherwise be
controlled. Although the rule has been ready to go for 5 years, it has
not been issued by the Department of Labor. This is especially alarming
because the rate of worker deaths and injuries has increased among
Hispanic workers who take on a disproportionate number of jobs in the
Nation's most dangerous professions, including the construction
industry and the meatpacking industry.
The DOL has been asked repeatedly to either issue the standard or
explain why they have not. Their latest regulatory agenda (October
2005) states that expected final action will come in March 2006, a date
that has been a moving target.
Can we get a commitment from you to look into this situation and
remedy it by issuing the standard no later than March 2006? If not, why
not?
Question 2. OSHA Outreach--A lot of small business owners don't
think that OSHA does apply or should apply to them. They think that
OSHA regulations don't apply because there has been a failure to
educate them on their responsibilities under this important
legislation. They don't think OSHA should apply to them because they
don't believe adherence to OSHA is cost-effective or too burdensome.
I would like you to speak to this problem and outline how you will
remedy it.
[Whereupon, at 3:30 p.m., the committee was adjourned.]