[Senate Hearing 109-433]
[From the U.S. Government Publishing Office]
S. Hrg. 109-433
THE STATE OF MINE SAFETY AND HEALTH
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
EXAMINING THE STATE OF MINE SAFETY AND HEALTH
__________
MARCH 2, 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
C O N T E N T S
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STATEMENTS
THURSDAY, MARCH 2, 2006
Page
Enzi, Hon. Michael B., Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
opening statement.............................................. 4
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of
West Virginia, opening statement............................... 5
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York, opening statement.................................... 6
Dye, David, acting assistant director, Mine Safety and Health
Administration; Ray McKinney, Administrator, Coal Mine Safety
and Health, MSHA; Dr. John Howard, Director, National Institute
of Occupational Safety and Health; and Dr. Jeffery Kohler,
associate director for Mining and Construction, NIOSH.......... 7
Prepared statements of:
Mr. Dye.................................................. 8
Dr. Howard............................................... 15
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, opening statement............................... 19
Byrd, Hon. Robert C., a U.S. Senator from the State of West
Virginia, opening statement.................................... 24
Peelish, Mike, senior vice president, Safety & Human Resources,
Foundation Coal Corporation; Michael E. Neason, American
Society of Safety Engineers, safety director at Hanson
Aggregates; Tom Novak, Ph.D., P.E., C.T. Holland Professor,
head of Department of Mining and Minerals Engineering, Virginia
Tech; and Cecil Roberts, president, United Mine Workers of
America........................................................ 38
Prepared statements of:
Mr. Neason............................................... 41
Mr. Roberts.............................................. 47
Mr. Peelish.............................................. 56
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Article from the New York Times entitled ``U.S. Is Reducing
Safety Penalties for Mine Flaws,''......................... 30
Response to questions of Senator Enzi by:
Mr. Dye.................................................. 76
Mr. Roberts.............................................. 101
Mr. Novak................................................ 102
Mr. Neason............................................... 107
Mr. Peelish.............................................. 110
Dr. Howard............................................... 114
Response to questions of Senator Kennedy by:
Mr. Dye.................................................. 80
Mr. Novak................................................ 104
Mr. Neason............................................... 109
Mr. Peelish.............................................. 112
Dr. Howard............................................... 115
Response to questions of Senator Hatch by:
Mr. Dye.................................................. 96
Dr. Howard............................................... 119
Response to questions of Senator Byrd by:
Mr. Dye.................................................. 98
Mr. Roberts.............................................. 102
Dr. Howard............................................... 119
THE STATE OF MINE SAFETY AND HEALTH
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THURSDAY, MARCH 2, 2006
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Mike Enzi,
chairman of the committee, presiding.
Present: Senators Enzi, Isakson, Kennedy, Bingaman, Reed,
and Clinton.
Also present: Senators Byrd and Rockefeller.
Opening Statement of Senator Enzi
The Chairman. I call to order this HELP Committee Oversight
hearing on mine safety.
Good morning and welcome to all of today's participants,
and also we have so many people that are here to view this
hearing that we have some overflow in the other room here. For
what it is worth, it is being web-cam transmitted as well. That
won't help anybody here that is a little bit crowded, but we
know that there is a lot of interest in this and have been
working on it very diligently with Senators Rockefeller and
Byrd, and I understand that we do have family members of mine
workers from West Virginia and from Alabama with us here today.
They have, of course, been touched by the mining tragedies, and
we welcome them to our hearing. In addition, I understand that
we have mine workers from West Virginia and Pennsylvania and a
number of the neighboring States. Included in them are some
mine rescue teams that participated in the recent mine
tragedies, and we welcome all of you to the hearing today.
The recent tragic accidents at the Sago and Alma Mines in
West Virginia have served to focus public attention on the
issue on mine safety and give some legislation legs.
Unfortunately, with so many issues on the national agenda, the
public's focus tends to fade with time. However, the focus on
this issue for those of us here today will not be allowed to
fade.
Mining and coal mining in particular is vital to our
national and local economies and our national energy security.
No aspect of mining is more important than protecting the
health and safety of those whose hard work fuels the industry.
Coming from Wyoming, which leads the Nation in the
production of coal and where mining is a way of life, I am
acutely aware of these issues. As the chairman of this
committee, I am also uniquely aware of the responsibilities we
bear in ensuring and advancing the cause of workplace safety. I
can assure all of you that the focus of this committee will be
on these vital issues and that it will not fade.
We are ever so glad that Senator Rockefeller has joined us.
He led a group of us down to West Virginia to meet with the
families of the Sago miners who lost their lives in the tragic
accident there, and with his leadership, we got some briefings
before we went down from a number of mine safety and United
Mine Workers people. It was extremely helpful in understanding
what we saw and heard when we were down there.
It was an intensively personal and emotional experience.
Each of us who traveled to West Virginia in our own way
promised those families that the loss of their loved ones would
not be the end, but would be the beginning of the work that has
to be done to address mine safety. I also want to sincerely
express appreciation to Senator Isakson for all of the work
that he has done since our trip. He, of course, was on the
trip. He is the subcommittee chairman and has dedicated a lot
of time and had hearings that will bear on this and has pursued
it relentlessly, and I appreciate his efforts.
Our commitment to improving mine safety has to be built on
a realistic assessment of the current State of mine safety.
Both the injury and fatality rates in mining in general and
coal mining in particular have shown a steady downward trend.
Last year, the total number of mine fatalities and the injury
rate in the industry were the lowest on record. We also need to
note that while the staff levels of MSHA have trended downward
in recent years, that the number of mines in operation and the
number of miners employed has witnessed a parallel trend. The
amount of time MSHA personnel actually spend onsite inspecting
mines has remained steady. Indeed, as contrasted with a decade
ago, this critical onsite time has increased significantly.
Overall, we have made strides in promoting mine safety;
however, we can and must do better. Every miner deserves to
return home safely at the end of the day. Even one unavoidable
accident is too many, and we must act to reduce the safety risk
for miners everywhere. In doing so, we must seek solutions that
will work in the real world. The employees that work the mines
and the operators that own them, the regulators that enforce
the rules, and all of us that benefit from the collective
labors have every right to expect that our actions will be
grounded in fact and responsible judgment.
The dialogue regarding mine safety that has developed in
recent weeks has brought much to light and suggested both the
pathway and promise of appropriate action. For example, the
dialogue assisted in no small part by the recent roundtable
held by the Employment and Workplace Safety Subcommittee
chaired by Senator Isakson. Ranking Member Murray played a
great role in it as well. This has taught all of us a great
deal about the reality, promise, and current limitations of
technology as tools for enhancing safety of miners. Beyond
learning more about the technical specifications of individual
pieces of equipment, we have learned valuable information about
the appropriate approach to mine safety regulation.
We must harness the power of technology to improve mine
safety; however, the mining environment is not always conducive
to the ready application of certain technologies. More
importantly, that environment varies considerably from mine to
mine. Thus, for example, some forms of communication technology
that work well on the surface work hardly at all below ground.
While others work in some mining settings, they don't work in
others. We have also seen that a one-size-fits-all approach to
workplace safety too often creates the unintended consequence
of stifling innovation and delaying the implementation of
better technology.
Just as the perfect should never be the enemy of the good,
the mandated should never be the enemy of innovation. All of
this has made it clear that there are inherent limitations in
attempting to proscribe general mandates for all mines and that
a more individualized and risk-based approach to regulation may
yield far better results. This means using available
technologies to locate miners and send them communications that
actually work in that particular mine. It also means building
upon the current technological base and implementing these new
technologies to continuously improve mine safety.
There are challenges to the implementation of new and
emerging mine safety technology that we can address by
legislative action. We need to coordinate governmental research
efforts that may have application in the mining environment. We
need to enhance dedicated mine safety research efforts through
a combination of increased funding and structural
reorganization of the Agency tasked with that research. We need
to speed the approval and certification process for new
technologies by harnessing private sector resources, and we
must overcome the problems associated with an extremely limited
potential market by devising creative ways to stimulate private
sector research and development in mine safety technology.
Miners deserve the best safety equipment and technology. We
should take all steps necessary to enhance its development and
speed its implementation. It has become clear that the mining
industry, like industries everywhere, is experiencing an aging
of its workforce. In an industry in which experience is so
critical in workplace safety, this demographic has far-reaching
consequences. We face the loss to retirement not only of the
miners, but of MSHA inspection personnel and mine rescue team
members, all of whom are drawn from the ranks of miners. We
must act to ensure that not only an adequate supply of well-
trained mining personnel, but rescue and regulatory personnel
are there as well.
While our goal is to avoid accidents in the first place, we
realize that despite everyone's best efforts, there will be
accidents in the future. Therefore, we must draw upon the
experience of these recent tragedies to find better ways to
respond to mining accidents so that no other family is left
without a father, a brother, or a son.
The best way we can honor the memory of those who have been
lost is by protecting the safety of those that remain. We do
this best by developing laws and regulations that enhance
practical and innovative solutions, rather than simply enacting
rigid rules, by developing and ensuring new technology,
encouraging rather than discouraging its use, and by seeking
practical approaches to mine safety that yield real-world
results.
The process that leads to these ends is not a simple one.
We have already completed many of the steps along the way, and
with today's hearing, we will complete another. As we continue
down this road, our commitment to the miners who lost their
lives in West Virginia this year, to the families they left
behind, and to the miners everywhere continues as well.
As chairman of the committee, I will work with my committee
members as well as other interested Senators and stakeholders
to move legislation that will move mine safety into the 21st
century.
I will now turn to Senator Isakson, the subcommittee
chairman, for any comments that he might want to make and then
to Senator Rockefeller for his leadership.
Opening Statement of Senator Isakson
Senator Isakson. Well, thank you, Mr. Chairman. I will
associate myself with all the well-thought-out remarks that you
just made, and I want to thank Senator Rockefeller for his
guidance and leadership when we went to West Virginia to allow
us to see firsthand the immediate effects of that terrible
tragedy.
On that trip with Senator Rockefeller, Senator Enzi, and
Senator Kennedy, as the press knows, we visited for over 2
hours privately with the families and loved ones of the miners
that were killed. As I left that meeting, I was handed by the
daughter of Junior Hamner his last picture that was taken the
day after Christmas 2005 before he died a week later in that
mine tragedy. I promised her I would keep it as a constant
reminder to us of our challenge which is ahead, and that is to
help break through technologically and make what is hoped for a
reality and make it a reality as quick as possible.
We learned with regard to the Sago tragedy that had two
things existed, lives could have been saved, that is two-way
communications that are reliable and foolproof and, secondary,
specific locators were reliable and foolproof. We had human
intelligence, being the second team that was in the mine when
the explosion took place. They knew where the good air was, and
the miners that were trapped could have gotten to it, but the
inability to communicate made it impossible and the inability
to locate made it impossible.
We learned in the hearing that we sponsored 2 weeks ago
where we had experts from around the world that there are
break-throughs. We learned that there is digital paging
technology that goes one way, but not both ways. We learned
there is location technology that can locate you generally, but
not specifically. What we have learned in this country since
John Kennedy declared that we go to the moon by the end of the
decade and we did it is that with the right capital investment
and the right focus and the right attitude, we can accomplish
technologically wonderful things. It is my hope that in this
committee, and to the extent our subcommittee has that
responsibility, these hearings and the work we do can be a
catalyst for the development of those things that do not exist
to make mines safer, to make miners safer, and to make sure
that Junior Hamner and those that have died in the past did not
die in vane, but, in fact, from their sacrifice we learned what
we could do better.
So I thank you, Mr. Chairman, for the time. I look forward
to working with you and Senator Rockefeller and others on this
as we work toward solutions on the mine safety problem.
The Chairman. Thank you and thank you for all your efforts
and leadership on this.
I will now turn to Senator Rockefeller who has been working
with us to draft some legislation, and I appreciate that.
Senator Rockefeller.
Opening Statement of Senator Rockefeller
Senator Rockefeller. Thank you, Chairman Enzi, and I will
be brief because I am not a member of the committee. I am only
here by virtue of your courtesy.
I want to say very clearly that, as the family members here
know, I was with you and Senator Isakson in the two-plus hour
family meeting that we had. Then we talked with miners and we
talked with MSHA and we talked with lots of different folks
through the day. I was sitting close to Chairman Enzi and
across from where I could see Senator Isakson very well, and it
was very clear to me they were both stunned and moved.
Mike Enzi comes from a coal-mining State. I am sorry to say
that it produces more coal than West Virginia, not as good, of
course, but more coal. He does have a couple of underground
mines, but he said to me, ``I want to come back to West
Virginia and go down an underground mine because I want to
understand exactly what it is that we are talking about here.''
Senator Isakson was also clearly moved and actually made
the last statement, which was a powerful, emotional statement
of commitment. You judge people by what they do. I know that,
but you also judge them by what they say and what they feel.
What they felt to me was very strong and very compelling and I
think will guide all of us as we work our way through this
legislation.
Coal mining is just such a history of the West Virginia
psyche. There is so much that has gone wrong. There is a lot
that has gone right. We focus on the wrong because it is more
important to focus on what doesn't go right than what does go
right because you always have to be in the mode of improving
things.
I don't believe, Mr. Chairman, that there has been a
hearing on mine safety since 2001. So this is the first one, I
believe, since 2001. I may be wrong. If I am, don't tell me,
please, right now.
It is just indemic of what happens when there has been a
little bit of fall-off in major tragedies. That doesn't mean
they aren't major tragedies because an individual miner or two
miners or three miners are killed in a accident. Those are just
as major and we can't let up on any of those, but I am just
very happy about the fact that in the Finance Committee we have
already passed some legislation.
This is more complex legislation and needs to be thought
about carefully, and I am just very grateful to you, Mr.
Chairman, to let me sit with both of you and Senator Clinton as
we discuss what we have to do. Thank you, sir.
The Chairman. Thank you.
We are going beyond tradition here, but, Senator Clinton,
do you have any opening comments you would like to make?
Opening Statement of Senator Clinton
Senator Clinton. Just to thank you, Mr. Chairman and also
Senator Isakson and Senator Murray, for the very informative
roundtable that you held and, of course, Senator Rockefeller
who has been such a great champion for West Virginia and West
Virginians for so many years.
We are here because this is an absolute necessity. We lost
in the 12-month period between February of last year and
February 17th of this year 43 coal miners, and we know from the
roundtable that was held, and as Chairman Enzi described in his
opening statement, there had been advances in technology. There
are new ways of looking at mine safety that we can learn from
and maybe borrow from other countries that have been facing
these issues themselves.
This is going to be a very important effort, and I know we
have with us today coal miners from Alabama as well as West
Virginia, from Kentucky and Pennsylvania, and I think Ohio,
Illinois, and Virginia, and we have some of the rescue team
members from the Sago and Alma Mines. Most importantly, we have
some of the family members of those who died. We have widows,
brothers and sisters, children, and others who lost their loved
ones, and I think everyone on this committee shares the
commitment that has been expressed that we will do whatever we
can to try to prevent these tragedies in the future.
There is no perfection on this Earth, we know that, but we
can do better and we will do better in memory of the many, many
coal miners who have given their lives over the decades so that
our country can turn on lights and get energy, make the economy
run, and I think it is an obligation and commitment that we all
share.
So, Mr. Chairman, I thank you for your usual seriousness of
purpose in addressing this important issue.
The Chairman. Thank you.
Today we have with us our panel of representatives. They
are from MSHA, the Federal Mine Safety and Health
Administration. MSHA is charged with the enforcement of our
Federal mine safety and health laws.
Joining us today from MSHA are David Dye, the Acting
Assistant Secretary for Mine Safety and Health, and Ray
McKinney, the Administrator for Coal Mine Safety and Health. My
understanding is that Mr. Dye will deliver MSHA's initial
statement, but that both he and Mr. McKinney will be available
to answer the members' questions.
Also with us today are representatives from NIOSH, the
National Institute of Occupational Safety and Health. NIOSH is
the main Federal Agency responsible for conducting research and
making recommendations in the area of occupational safety and
health. With us today from NIOSH are Dr. John Howard, the
Director of NIOSH, and Dr. Jeffrey Kohler, the Assistant
Director of NIOSH for Mining and Construction. Again, it is my
understanding that Dr. Howard will present prepared remarks on
behalf of NIOSH and that both he and Dr. Kohler will be
prepared to answer members' questions.
Thank you all for being here this morning. I look forward
to your testimony. We will begin with the initial statements
from the witnesses, and after both agencies have provided their
respective statements, we will proceed with any questions the
members may have for any of the witnesses.
Mr. Dye, we will begin with your statement.
STATEMENTS OF DAVID DYE, ACTING ASSISTANT DIRECTOR, MINE SAFETY
AND HEALTH ADMINISTRATION; RAY McKINNEY, ADMINISTRATOR, COAL
MINE SAFETY AND HEALTH, MSHA; DR. JOHN HOWARD, DIRECTOR,
NATIONAL INSTITUTE OF OCCUPATIONAL SAFETY AND HEALTH; AND DR.
JEFFERY KOHLER, ASSOCIATE DIRECTOR FOR MINING AND CONSTRUCTION,
NIOSH
Mr. Dye. Thank you, Mr. Chairman.
I am pleased to be here to appear before you today to
discuss the work of the Mine Safety and Health Administration.
While much attention has been focused on mine safety following
the recent accidents in West Virginia, I assume MSHA does
everything in its power to help the mining industry provide the
safest, more healthful work environment possible for miners in
this county.
In recent years, miner fatalities and injuries have fallen
to all-time lows. With the turn of the century, mining
fatalities numbered in the thousands. In 1978, the first year
under the new Mine Act, 242 miners died in mining accidents.
Last year, there were 57 mining fatalities. In the last 5
years, the mining industry experienced a 33 percent decrease in
fatal accidents and a 24 percent decline in the total injury
rate. This is an impressive record, but there is obviously room
for improvement. One mining fatality is too many, as you said,
Mr. Chairman.
The accidents this year in West Virginia along with other
recent fatalities are vivid reminders that we must continue to
seek new and improved accident prevention measures. When
accidents occur, we need to give miners the best possible
chance to survive. We at MSHA continue to vigorously enforce
the law. Last year, MSHA cited the most safety violations in
more than 10 years. We fined violators close to $25 million
last year. We do not take our enforcement responsibility
lightly.
Our primary goal is to prevent accidents, but accidents do
occur, we respond. We are completing the accident
investigations at Sago Mine and Alma Mine No. 1. These accident
investigations and others we conduct this year will teach us in
the mining community how to prevent future occurrences. This is
what we do.
I would like to take a moment, Mr. Chairman, as you did, to
commend the mine rescue teams that responded to the accidents
at the Sago Mine and Alma Mine No. 1. These teams, all the mine
rescue teams, need to be recognized for their exceptional
bravery, dedication, and professionalism. We have the best
trained, best equipped, and most dedicated mine rescue teams in
the world, and we need to maintain or even improve this
capability.
We need to give miners the best opportunity to survive
fires and explosions. MSHA will soon be issuing an emergency
temporary standard to address the requirements for all
underground supplies of oxygen-generating breathing devices,
training, lifelines, and accident notification requirements. We
are working with new technology. Some of the new technology
that MSHA has recently been investigating before Sago includes
proximity protection devices to protect miners working near
remote control equipment, personal continuous dust monitors
that give real-time readouts on respirable dust levels, video
cameras for surface equipment to eliminate blind spots and
permissible for exploring gassy underground mines. That is just
a partial list of the kinds of things that we have been working
on.
In January, MSHA published a request for information on
underground mine rescue equipment technology. Today, we have
received more than 70 proposals from manufacturers and
distributors of emergency communication and tracking systems,
and proposals continue to come in almost daily. MSHA has
already selected several promising communication systems to
evaluate.
At this stage, the technology looks promising, but it must
be further evaluated and tested before rushing into a decision
to mandate its use in underground coal mines. To that end, in a
cooperative effort with the West Virginia Board of Coal Mine
Health and Safety, MSHA will conduct further field evaluations
of these systems.
I am also pleased to announce today that MSHA and our
sister Agency NIOSH are co-sponsoring an international workshop
on mine escape planning and emergency shelters, and that will
include refuge chambers, on April 18, 2006 at the National
Academy of Sciences here in Washington, DC. Among other things,
representatives from NIOSH and MSHA will be discussing issues
involving escape planning with an emphasis on evacuation as the
first priority.
We are also examining our civil penalty structure. For one
thing, the Administration has proposed legislation to increase
the maximum civil penalty for flagrant violations of mine,
safety, and health standards, and I have personally directed a
re-examination of the penalty amounts contained in the existing
penalty schedule. In addition to that, MSHA recently filed two
lawsuits in U.S. District Court for the Eastern District of
Kentucky seeking injunctions against mine operators who have
chronically failed to pay civil penalties assessed for
violations of the Mine Act. The complaints ask that these
operators be enjoined for failing to pay penalties for future
violations of the Mine Act and to be required to post a bond
with the court to guarantee future compliance with the law.
Mr. Chairman, the men and women of MSHA are dedicated to
saving lives. The men and women of MSHA consider every mining
injury preventable. The men and women of MSHA grieve the loved
ones of every miner who loses his life in the mines. The men
and women of MSHA have one goal, Mr. Chairman, and that is
sending every miner in this country home to family and friends
safe and healthy at the end of every shift, every day.
Thank you.
The Chairman. Thank you very much.
[The prepared statement of Mr. Dye follows:]
Prepared Statement of David G. Dye
Mr. Chairman, I am pleased to appear before you today to discuss
the ongoing work of the Mine Safety and Health Administration (MSHA).
MSHA works diligently to promote mine safety and health. We want
nothing more than to send every miner home safely at the end of every
shift, every day.
We have been moving closer to that goal every year. In recent
years, the mining industry has experienced historic lows in injury and
fatality rates. In 1978, the first year MSHA operated under the new
Mine Act, 242 miners died in mining accidents. Last year, there were 57
mining fatalities, 22 at coal mines and 35 at metal and nonmetal mines.
From 2000 to 2005, the mining industry experienced a 33 percent
decrease in fatal accidents nationwide--with coal mines seeing a 42
percent decline. The coal mine lost-time injury rate declined one-third
over the last 5 years. These are important and compelling statistics
one must consider in placing current mine safety and health conditions
in a proper perspective.
MSHA inspectors vigorously enforce the law--with the support of the
entire Agency, top to bottom. Last year, MSHA issued the highest number
of citations and orders since 1994. In recent years, MSHA increased its
use of ``withdrawal orders'' to gain compliance with the standards.
This is a powerful enforcement tool as withdrawal orders require miners
to be removed from the area affected by the violation, often resulting
in disruptions to production. The number of withdrawal orders increased
20 percent over the last 5 years when compared to the previous 5 years.
MSHA issued more ``withdrawal orders'' in both 2004 and 2005 than in
any year since 1994. It is important to note that any MSHA violation
must be abated within a specified time frame before the penalty is
assessed. In the case of withdrawal orders, the hazard must be abated
before miners are allowed to work in the area or activity affected by
the hazard.
The statistics show our strong enforcement record very clearly.
From fiscal year 2000 to fiscal year 2005:
Total Citations and Orders issued by MSHA at all mines
increased by 5 percent (119,183 to 125,161).
Total Citations and Orders issued at coal mines increased
by 19 percent (56,870 to 67,756).
Total ``Significant and Substantial'' Citations and Orders issued
at coal mines increased by 13 percent (23,586 to 26,717).
MSHA enforcement personnel have significantly increased the
issuance of withdrawal orders to coal mine operators who exhibit an
unwarrantable failure to comply with the regulations. Unwarrantable
failure orders are one of the most severe enforcement actions
inspectors can take and in each of the last 2 years MSHA inspectors
issued more such orders than in any year in the last 10 years.
While enforcement activity and the number of miners went up from
2000 to 2005, the number of coal mines fell. There were 2,124 coal
mines in 2000 and 1,982 in 2005 (through the third quarter) and 108,098
coal miners in 2000 and 112,449 in 2005 (through the third quarter).
Clearly, MSHA inspectors continue to vigorously enforce the law--with
the support of the entire Agency, top to bottom.
I want to make something clear. MSHA's inspectors diligently and
vigorously enforce the law. However, the Mine Act does not give MSHA
the authority to preemptively close entire mines because of the number
or frequency of violations. Nor does the Mine Act include the authority
to close or seize a mine because of unpaid fines or penalties.
While we are proud of our enforcement and compliance record, we
know there is more to do. We are currently engaged in a thorough
investigation of the recent tragic accidents at Sago and Alma Mines. We
are determined to learn from these accidents.
First, I want to publicly recognize the mine rescue teams who
responded to the accidents at Sago Mine and Alma #1 Mine. These teams
demonstrated exceptional bravery and professionalism, and they should
be commended for their efforts, as well as for their dedication to
their fellow miners.
I would like to give you an update on the Sago Mine and Alma Mine
#1 accident investigations. We have finished mapping the underground
areas of the Sago mine and have completed nearly all of the witness
interviews. Thus far, MSHA and representatives from the State of West
Virginia have interviewed 46 individuals. We have completed an
evaluation of the geology of the roof in the abandoned area of the mine
where the explosion occurred. In conjunction with the National
Institute for Occupational Safety and Health (NIOSH), we are developing
a protocol to test the materials used in the Sago mine to seal the area
where the explosion occurred. At this time we have no information that
would suggest that the explosion is related to any conditions that MSHA
enforcement personnel observed and cited at the mine before the
explosion.
We have completed the investigation of the underground areas of the
Alma #1 mine with the exception of the immediate vicinity where the
fire occurred. There are significant roof falls in this area that will
have to be removed before the underground portion of the investigation
can be completed. At this time we have interviewed 14 individuals and
the remaining interviews should be completed within the next several
weeks.
As standard operating procedure, MSHA conducts an internal review
after every major accident. We will look carefully to see if MSHA
followed its own policies and procedures with respect to Agency
activities prior to and during the accident. This report will be shared
with this committee and made public. MSHA has always viewed its
internal review process as an opportunity to take a hard and honest
look at how we do our job and to use that information to improve how we
do business. Past reviews have been comprehensive and objective
examinations that resulted in responsible recommendations for
improvement. The Government Accountability Office and the Department's
Office of the Inspector General are also conducting independent reviews
of various aspects of MSHA's programs.
Despite the progress the mining industry has achieved in the area
of health and safety, there is always room for improvement. The recent
fatalities in West Virginia, along with other recent fatalities, are
vivid reminders that we must continually seek new and improved accident
prevention measures. And when accidents occur, we need to give miners
the best possible chance to survive. I want to share some of the
actions MSHA is currently taking in the areas of rulemaking, mining
technology, mine rescue operations, and civil penalty assessments.
emergency temporary standard
MSHA's safety and health standards are constantly being reviewed
and adjustments made to improve them or address newly recognized
hazards. As a direct result of the recent two West Virginia accidents,
we will soon be issuing an Emergency Temporary Standard to improve
safety in underground mines in the areas of: underground supplies of
oxygen generating breathing devices, training, lifelines, and accident
notification.
technology
There has been much discussion surrounding the availability of
technology and equipment that, if available to miners during and after
fires and explosions, could increase their chances for survival. MSHA
constantly searches for and evaluates emerging technologies that can be
used to protect miners. On January 25, 2006, MSHA published in the
Federal Register a Request for Information (RFI) on Underground Mine
Rescue Equipment and Technology.
MSHA is currently in the process of evaluating advanced underground
mine communication and tracking systems. The Personal Emergency Device
(PED) system is a one way ``through the earth'' communication system
used in Australia, but only used in about a dozen underground mines in
the U.S. MSHA is evaluating the PED at four different U.S. underground
coal mines, and plans to evaluate the system at the only U.S. mine with
a surface-mounted antenna. Information on PED performance will also be
collected in Australian coal mines. Although the PED could send
evacuation instructions to miners in the early stages of a fire, system
limitations already noted in MSHA's field evaluations may seriously
compromise the reliability or true usefulness of the PED during a U.S.
mine emergency. These shortcomings include the vulnerability of
commonly-installed underground antennas in the event of a fire or
explosion, signal loss issues, range limitations, and potential
interference with other mine communication systems.
The Tracker Tagging System is an MSHA-approved tracking system for
use in underground mines. A remote unit, carried by a miner, transmits
its location to a ``beacon'' receiving unit as the miner passes the
beacon. Tracking of miners is limited to identifying their location in
the ``zone'' between two beacons where any given transmitter is
located, and beacons are commonly spaced at 3,000-4,000 ft. intervals.
While some have advocated mandating its use in underground mines in the
U.S., little is known about the system's performance. There are no
underground mines in the U.S. using the Tracker Tagging System. While
it is used in several mines in Australia, it is used in just one
underground coal mine in that country, and one coal mine in China.
Both the Tracker Tagging system and the PED system must be further
evaluated and their effectiveness tested before rushing into a decision
to mandate their use in underground mines. To that end, in a
cooperative effort with the manufacturer of both systems, MSHA and the
West Virginia Board of Coal Mine Health and Safety will visit four
mines in Australia this month to conduct further field evaluations of
the two systems. The issues reported in U.S. mines regarding signal
loss or ``shadow'' zones will be further investigated to accurately
determine the nature of these anomalies.
Other available communication technologies for consideration are
actively sought through the RFI. MSHA is soliciting technical
presentations or written comments on underground communications and
systems for tracking underground miners and will hold a public meeting
specifically for that purpose on March 13th at the National Press Club
in Washington, DC. We are hopeful that the information gathered at this
meeting, together with the conclusions drawn following the field
evaluations of the PED and Tracker systems in both the United States
and Australia, will help direct MSHA and all other concerned parties in
our efforts to provide the best available communications technologies
to miners in the event of an emergency underground.
Furthermore, in response to the recent RFI noted above, MSHA has
received more than 70 proposals from manufacturers and distributors of
emergency communication and tracking systems. Additional proposals
continue to come in on a daily basis. MSHA's Technical Support
Directorate is currently reviewing these products and proposals and
will assist interested manufacturers in obtaining approval for the
equipments' use in underground mines. For our initial reviews we are
prioritizing the emergency communications or tracking systems that do
not rely on a wire back-bone and that have the greatest potential to
remain functional in the event of a roof-fall, inundation, fire, or
explosion. From the over 70 proposals received, MSHA has initially
selected several promising communication systems to evaluate based on
the following criteria: precise tracking and 2-way voice preferred
capability; survivability in a fire or explosion; current availability;
and capability of complying with MSHA requirements.
To help expedite and standardize the evaluation of these existing
and promising technologies, a mine communications partnership is being
formed with membership consisting of the National Institute for
Occupational Safety and Health (NIOSH), MSHA, the Bituminous Coal
Operators Association (BCOA), the United Mine Workers of America
(UMWA), the United Steelworkers, the National Mining Association (NMA),
and the State of West Virginia. The primary goals of this partnership
are to establish general performance expectations for mine emergency
communications systems, establish uniform and fair criteria for testing
and evaluating systems, and to conduct in-mine tests on systems. A
secondary goal is to identify gap areas that should be addressed
through research.
The State of West Virginia, MSHA, and NIOSH are co-sponsoring the
International Mining and Health Safety Symposium on April 20-21, 2006.
The symposium will bring together technology developers, equipment
manufacturers, the Federal Government, the State of West Virginia,
organizations representing the mining community, and other countries to
discuss the development, approval, and adoption of state-of-the-art
technologies and mining methods. Wheeling Jesuit University will host
the symposium at the Robert C. Byrd National Technology Transfer Center
and the Civic Center in Wheeling, WV.
MSHA is working with the BCOA and the NMA to jointly develop a
template on mine rescue preparedness. This document will describe
standardized mine emergency procedures related to mine rescue
organization, lines of communication, and establishing lines of
authority. In addition, MSHA has sought information from the entire
mining community, including labor, industry, academia, and local first-
responders on improvements to mine rescue preparedness.
civil penalty assessments
Assessments are civil penalties (fines) levied on mine operators,
independent contractors working on mine property, agents of operators
or contractors, or, in some cases, individual miners, for violating
safety or health standards or sections of the Mine Act. The process of
determining penalty amounts is governed by the criteria included in the
Mine Act and Federal regulations. The penalty assessment process is
administered by an MSHA office separate from the enforcement arms of
the Agency to ensure the objectivity of the fines proposed for
violations. The Office of Assessments implemented the most recent
guidelines for proposing civil penalties in 2003.
These penalties range from $60 to a statutory maximum of $60,000.
The $60 fine is generally imposed for less serious, timely abated
violations that occur in mines with low violation histories. More
serious violations may receive a computer-generated regular formula
assessment that assigns points based on criteria specified in the Mine
Act. The most egregious violations may receive higher assessments with
proposed penalty amounts determined by assigned specialists. The
statutory maximum of $60,000 can be imposed for regular formula or
special assessments.
Proposed civil penalty amounts are determined using five statutory
criteria in the Mine Act:
the size of the operation,
the operation's history of violations,
the negligence of the operator,
the gravity of the violation,
the degree of good faith the operator exhibits in
correcting the violation.
A sixth statutory criterion, the ability of the operator to
continue in business, is taken into account only after the amount of
the fine is proposed and presented to the operator. The operator must
provide convincing evidence of financial hardship and inability to
continue in business. In these cases, MSHA may adjust the fine.
If the mine operator thinks the proposed penalty is too high, the
operator can contest the penalty. The contested penalty first goes to
an administrative law judge of the Federal Mine Safety and Health
Review Commission who can uphold the original penalty, vacate the
penalty, reduce the penalty, or (in rare instances) increase the
penalty. If the operator is dissatisfied with that result, the operator
can ask the full Federal Mine Safety and Health Review Commission to
hear the case. If the commission takes the case and the operator is
dissatisfied with that result, the operator can appeal to the Court of
Appeals. Sometimes this process takes several years. A case may
ultimately go to the U.S. Supreme Court.
Operators have 30 days to pay or contest their fines once they are
assessed. If the fine is not contested, it is considered a final order
of the commission after the 30 days. If these fines are not paid within
30 days, MSHA begins contacting the operator and 8 percent interest
begins to accrue. If the debt remains unpaid for 90 days, an additional
nonpayment penalty of 6 percent begins to accrue, retroactive to the
date the fine became final.
Penalties are considered debts under the provisions of the Debt
Collection Improvement Act of 1996. When a debt is delinquent more than
180 days, MSHA refers the debt to the Department of the Treasury for
collection. Treasury may attempt to collect the debt directly, refer
the debt to a private collection Agency, collect the debt by offsetting
Federal payments made to the debtor, or, ultimately, refer the debt to
the Department of Justice for collection. If this process is
unsuccessful, MSHA may terminate collection of the debt and report it
to the Internal Revenue Service to be included in the company's income
tax liability as taxable income.
MSHA cannot close a mine if it has too many fines or does not pay
the fines assessed. The Mine Act does not give MSHA that authority.
MSHA is neither soft on enforcement nor soft on assessments. This
administration stands by its assessment record. Over the last 5 years,
MSHA proposed 21 percent more penalties at the $10,000 or higher level
than during the previous 5 years. The total dollar value was up by 16
percent during this same period of time.
Approximately 6 percent of citations and orders are contested.
Litigation at the commission or in Federal court impacts a large
percentage of contested proposed assessments. For assessments contested
between 1995 and 2005, 46 percent of the penalties were reduced and the
average reduction in the penalty was 47 percent. The administration has
already proposed legislation to increase the maximum civil penalty for
flagrant violations from $60,000 to $220,000. Additionally, I have
directed a re-examination of the penalty amounts and MSHA will soon
propose rule making revisions to the penalty schedule (subject to the
statutory $60,000 penalty cap).
MSHA has also filed two lawsuits in February in the U.S. District
Court for the Eastern District of Kentucky seeking injunctions against
two separate mine operators who have chronically failed to pay assessed
civil penalties for violations of the Mine Act. The complaints ask that
both operators be enjoined from failing to pay penalties for future
violations of the Mine Act and that both be required to post a bond
with the court to guarantee future compliance with the law. MSHA is
also evaluating other cases involving operators who have refused to pay
civil penalties and will seek injunctions against them where
appropriate.
Finally, it is important to note that any MSHA violation must be
abated within a specified time frame even before the penalty is finally
assessed. In the case of withdrawal orders, the hazard must be abated
before miners are allowed to work in the area or activity affected by
the hazard.
Every employee at MSHA is dedicated heart and soul to the Agency's
mission. Every employee at MSHA lives and breathes for the day when
there are no fatalities, no injuries, and no occupational illness among
all of this country's miners. Every employee at MSHA strives every
second of every day to reach our goal: sending every miner in this
country home to family and friends, safe and healthy, at the end of
every shift, every day. We will not rest until that happens. Thank you.
The Chairman. Dr. Howard.
Dr. Howard. Good morning, Mr. Chairman, Senator Isakson,
Senator Rockefeller, Senator Clinton. I am pleased to be here
with our statutory partner, MSHA.
The focus of NIOSH research is to generate new knowledge in
the field of occupational safety and health and to transfer
that knowledge into practice globally. The mission of NIOSH
safety and health programs is to prevent injuries and illnesses
amongst our Nation's miners. Our mining program has an
aggressive research transfer effort involving industry and
labor workshops, mine site demonstrations and dissemination of
print, electronic, and video information.
One of our most effective research-to-practice tools is
partnering with other Federal and State agencies, mine
operators, labor, academia. These partnerships are the most
important channel to move all research products into practice.
We use injury and illness data, stakeholder input, and other
mechanisms to organize our mining program into several major
areas: The elimination of respiratory hazards, the prevention
of noise-induced hearing loss, elimination of traumatic
injuries including those of a cumulative nature, prevention of
rock falls, disaster prevention and response.
I would like to highlight this last area this morning. Our
research in this area addresses a heirarchy: prevention,
escape, and rescue for mine fires, explosions, and inundations.
First, we focus on the development of design and engineering
controls to prevent a fire, explosion, or inundation. Our
research has led to the general use of fire prevention and
ventilation practices throughout the industry.
The second area, mine escape, focuses on providing
effective training and tools to aid miners in making a
successful escape from the mine during an emergency. Our
training programs for self-contained self-respirators and the
use of emergency communications are used throughout the
industry.
A third area, mine rescue, focuses on the development of
training exercises for mine rescue teams and fire brigades as
well as the development and testing of technologies to allow
rescuers to work more quickly and more safely. Thousands of
miners and more than 100 rescue teams have been trained by
NIOSH in partnership with State mining agencies, mining
companies, and labor.
Our ongoing work includes preventing gas explosions from
lightening strikes, preventing the propagation of explosions,
improving response during the first 30 minutes of a mine
emergency, training rescue teams, and launching a new pilot
project to look at disaster prevention and response issue
arising from the recent tragedies; but much remains to be done
in several areas: one, to improve and harden ventilation
systems; two, to improve seal construction and installation
criteria; three, to develop the next general of self-contained
self-rescue respirators; four, to improve emergency
communication systems; five, to harden mine communications as
well as atmospheric monitoring systems; and six, to improve
escape training and establish application guidelines for rescue
chambers and to examine carefully risk-management approaches.
Recent mine disasters underscore the importance of NIOSH's
disaster prevention research. Mining conditions are becoming
more difficult. Mining methods are evolving. And the mining
workforce is undergoing significant change. We are re-
evaluating the practices that made sense in the past to confirm
their continued application to these changing mining
conditions. There is no single solution. Each mine is different
and requires a different mix of technologies and practices to
address the problems at hand.
We will continue to work with this committee together with
our partners and stakeholders in the mining community to put
into practice the best science to ensure a safer and healthier
mining environment.
I would be happy to answer any questions, Mr. Chairman.
Thank you very much.
The Chairman. I want to thank both of you for your
testimony. I am sure we have quite a few questions.
[The prepared statement of Dr. Howard follows:]
Prepared Statement of John Howard, M.D.
introduction
Good morning Mr. Chairman and other distinguished members of the
committee. My name is John Howard, and I am the Director of the
National Institute for Occupational Safety and Health (NIOSH), which is
part of the Centers for Disease Control and Prevention (CDC), within
the Department of Health and Human Services. I am accompanied by Dr.
Jeffrey Kohler who is the NIOSH Associate Director of Mining and
Construction. I am pleased to be here today with our sister Agency, the
Mine Safety and Health Administration (MSHA). Our agencies work
together toward the common goal of protecting worker safety and health.
The focus of NIOSH research is to develop new knowledge and to
transfer that knowledge into practice. The NIOSH Mining Program seeks
to understand and explain through its research the underlying causes of
diseases, injuries, and fatalities among mine workers, and works to
develop interventions to eliminate these underlying causes. In many
cases engineering controls, best practices and improved training
programs are developed or improved. These have little potential for
impact, however, until each is practiced at the mine. Towards that end,
the NIOSH Mining Program has an aggressive technology transfer program
encompassing workshops, stakeholder meetings, mine-level meetings, and
the dissemination of information in print, electronic, and visual
materials, among others. One of the most effective research-to-practice
tools employed by the NIOSH Mining Program is the wide use of
partnerships. These partnerships of labor, industry, Government,
universities, and manufacturers are involved from project conception to
completion, and provide an excellent conduit to move the research
products into practice at the mine.
Based on surveillance data and stakeholder input, the mining
program, is organized in six areas.
respiratory hazards control
This area is focused on the elimination of coal worker
pneumoconiosis, silicosis, and the adverse health outcomes associated
with exposure to diesel exhaust. The development of engineering
controls and best practices is a major focus of this area, along with
empowering miners with real-time dust measurement devices. NIOSH-
developed innovations to reduce exposure are found throughout the
mining industry, and a few examples include coal and silica dust
suppression technologies, and the diesel particulate matter filter
selection guide.
noise-induced hearing loss
This area is focused on the elimination of hearing loss resulting
from exposures to noise. The development of engineering controls to
reduce noise at the source is the major focus, with a secondary focus
on training, along with the development of inexpensive devices to
empower miners to determine their exposure in real time. Although this
major area has only developed over the past 7 years, several NIOSH
innovations can be found in practice, including improved noise controls
for mining machinery and improved training tools for mineworkers.
traumatic injury
This area is focused on eliminating the injuries and fatalities
resulting from machinery and powered haulage, electricity, and falls,
among others. The development of improved design practices, engineering
controls, and training tools are focus areas for NIOSH researchers.
NIOSH-developed recommendations for safer blasting have been adopted by
the mining industry, and NIOSH developed training programs to recognize
hazards and prevent injuries are utilized throughout the industry.
NIOSH has recently licensed two new technologies that will reduce
powered haulage injuries and electrical contact injuries, respectively.
cumulative trauma injuries
This area is focused on elimination of musculoskeletal injuries,
e.g., to the lower back, knees, and shoulders, and with an aging
workforce, this is becoming an increasingly critical area. The
identification and redesign of the workplace and work tasks is proving
to be a successful approach in eliminating these problems, as is
improved training. Important examples of NIOSH innovations include The
Ergonomic Process which is being widely embraced in the coal, metal/
nonmetal, and stone industries, and the ergonomically designed shuttle
car seat which has become a standard on nearly all shuttle cars in
underground coal mines.
disaster prevention and response
This area is focused on the prevention--escape--rescue hierarchy of
mine disasters, e.g., fires, explosions, and inundations. This research
focuses first on the development of design and engineering control
interventions to prevent a fire or explosion. NIOSH developments, in
the areas of fire prevention and ventilation are in general use
throughout the industry. The second area of mine escape focuses on
providing effective training and tools to aid mine workers in making a
successful escape from the mine during an emergency. NIOSH developed
training programs for Self Contained Self Rescuer use, and the
Emergency Communications Triangle, are prevalent throughout the
industry. The third area of mine rescue focuses on the development of
training exercises for mine rescue teams and fire brigades, as well as
the development and proving of technologies to allow rescuers to work
more quickly and safely. Thousands of miners and more than 100 rescue
teams have been trained by NIOSH in partnership with State agencies and
mining companies. The Res-Q-Com communications system for mine rescue
teams has the potential to significantly enhance communications during
rescue. NIOSH's on-going research on the aging workforce is addressing
some of the barriers to staffing rescue teams today.
ground control
Mines are developed within the earth in the naturally occurring
geologic structures. This area is focused on the prevention of
unplanned rock failures since the structural integrity of the mine
openings is essential to worker safety, the ventilation systems and
adequacy of escape routes. The focus areas of research include defining
rock mass behavior within specific geological and geotechnical
conditions, such as high stress fields or interactions with surrounding
mines; and the development of engineering controls and design
strategies to prevent unplanned fall of ground, e.g., rock or ore.
NIOSH-developed design practices and computer design tools are widely
used throughout the industry. NIOSH developed or tested innovative roof
supports are found throughout the coal industry, and Mobile Roof
Support (MRS) is used on virtually every retreat coal mining section in
the United States.
Overall, important advancements have been made in mining safety and
health, and many of these advancements can be directly related to NIOSH
mining research and prevention activities and those of its partners.
Nonetheless, much remains to be done. Recent mine disasters underscore
the importance of NIOSH's disaster prevention research, and especially
in light of specific changes. Mining conditions are becoming more
difficult, mining methods are evolving, and the mining workforce is
undergoing significant changes. Practices that made sense in the past
are being reevaluated by NIOSH. There is no single solution--each mine
is different and requires a different mix of both technologies and
practices to address the problems at hand. NIOSH will continue to work
together with our partners and stakeholders in the mining community to
put into practice the best technology to ensure a safer and healthier
work environment.
At this time, I will be happy to respond to any questions that you
might have.
The Chairman. One of the things we are trying to do, of
course, with the mine safety technology is to make sure that
anything that we write into law is not just dealing with the
present, but also looks at the future. We want there to be a
focal point for the exchange of ideas, an incentive for people
to invent things that will serve to make more people safer in
mines.
Can you give me an idea of the process for getting
something approved once it has been invented and a little bit
of a timeframe of how that would work? Probably Dr. Kohler
would be the best to answer.
Dr. Kohler. Thank you. Are you talking about the statutory
approval of actually using the mines?
The Chairman. Yes.
Dr. Kohler. MSHA approval and certification would be.
The Chairman. OK.
Mr. Dye. Yes. Our approval, I think there is a serious
misunderstanding of our approval process. The approval process
is to ensure inherent safety of the device. So all electrical
devices, whether they be a large continuous mining machine or a
shuttle car or a hand-held communications device, anything that
uses electricity, including battery power, has to be designed
in such a way that it will not cause a spark in a gassy
environment so you won't have either a fire or an explosion. So
outside of equipment that is designed specifically for mining,
where they take that into account when they design the
equipment.
Senator Byrd. Can you speak a little louder, please?
Mr. Dye. I'm sorry. Is this better, Senator?
Senator Clinton. Is your mike on?
Mr. Dye. Yes, it is. I am sorry. I am a little horse today.
I will try to speak louder.
So when adapting equipment that wasn't specifically
designed for mining, it requires that equipment be redesigned
and a manufacturer will submit that to MSHA and we will work
with them to redesign hand-held communications equipment, that
usually requires re-designing the case, the outer case. It may
require other things. Even for a small piece of equipment like
that, is fairly expensive for manufacturers to do that.
And they send it back to us. We test it. We make further
suggestions. We test it again, if necessary, and that goes back
and forth until that device will be inherently safe inside a
mine.
The Chairman. So what would you guess is the average length
of time that it takes to do that?
Mr. Dye. Well, there have been some complaints about the
time, but that is really driven by how fast the manufacturer
makes the changes and gets back to us. For instance, we are in
the midst of approving a new hand-held walkie-talkie radio, a
wireless communications device. That has taken a bit over a
year, but that is largely because we are dealing with a
Japanese manufacturer and have to send drawings and schematics
and engineering details that go back and forth between us and
Japan, and sort of the pace of doing that is determined by the
manufacturer. So it has taken a while.
I would like to mention in connection with that, we used to
have an approved device made by Motorola. They decided not to
manufacture that anymore. We worked very hard with them to
continue to provide support for that device, which they are
doing, but they are not providing a new device. So we worked to
try to find another manufacturer that would do that, and
Kenwood is in the midst of trying to make that device
permissible.
The Chairman. Thank you. I am concerned about how advances
in technology can best be moved from the research lab to the
commercial market. Now, we have heard there has been a lot of
research done with something called piggyback oxygen systems,
and from what I understand, those systems might be safer than
supplying or catching spare self-contained self-rescuers
because the piggyback system doesn't require removing the face
mask on the oxygen operatus.
Could someone comment on that system and give any
suggestions you might have about how we can speed up or
encourage the development and commercial availability of any
new mine safety technology?
Dr. Kohler. Yes. I could comment on the point. The general
point that you raise is very critical, and that is in the
mining industry, how do we effectively move demonstrated
research concepts into the marketplace, and this has been a
chronic problem because it is a very small industry. In fact,
we find ourselves in the role of not only having to develop an
intervention and demonstrate its effectiveness, but then we
have to address a variety of other issues that would normally
be addressed by manufacturers who would be clambering to
manufacture the device for sale, but since the market is so
small, they are not clambering. They don't want to take on any
risk, and that creates a special problem for us to move that
technology from the demonstration phase to the market face.
In the case of some of the things that you mentioned and we
mentioned earlier, in Mr. Dye's remark, he mentioned the
proximity detection system, and that is a very good example.
That is a critical technology that was developed by NIOSH to
prevent mine workers from being pinched or crushed between
machinery and the confined workspace. After it was patented,
many licensing attempts were made and it has taken really years
in order to find a manufacturer who is willing to bring that
device to the market and then it has taken the efforts of MSHA
and others working in cooperation with labor and industry to
actually demonstrate it in the mine and bring it into the
workplace.
The respirator issue is another example. If we look at a
holistic solution to all of this, one would say maybe it is
time to move to the next generation of self-contained self-
rescuer. While the current generation is belt-wearable, the
miner already is wearing so many things that it is not always
practical to belt-wear it, and that creates its own issues. So
a slightly smaller and lighter next generation is very much
needed.
Second, years ago, people looked into the concept of a
dockable or piggyback type of self-rescuer. Whereas you worked
your way through the mine in an escape instead of having to
take off the self-rescuer and don a new unit, which involves
some potentially serious risks, you could simply plug in
another cartridge and keep moving.
Those ideas are there. They need to be revisited, and
Government needs to play a role in trying to move this
technology into the workplace despite the small market.
The Chairman. Thank you. My time has expired. I have a lot
more questions, but probably some of them will be covered by
others on the panel.
We have been joined by Senator Kennedy, who of course made
the trip with us and has been deeply involved in this whole
process, but has to juggle a number of committees. We are glad
you joined us. We will let you make a statement and then begin
your questioning.
Opening Statement of Senator Kennedy
Senator Kennedy. Thank you, Mr. Chairman. I remember just
hours after the Sago mine or during the Sago mine tragedy
calling our chairman at that time, and he indicated what can we
do and when can we do it and brought the committee together,
Senator Isakson and others that took that trip, Senator
Rockefeller. Senator Byrd was here preparing for that very,
very important Appropriations Committee. So I thank you for
having this hearing today.
I thank you also for extending the courtesy to Senator Byrd
and Senator Rockefeller. That is typical of you. They have
enormous interest, obviously, in their State, primarily West
Virginia, but this is an issue, obviously, that reaches a
number of other States, and there have been no two Senators who
have been more committed to the safety and security and well-
being of miners all over this country than these two Senators,
and we rely on them day in and day out for their counsel,
advice, and their leadership. We are fortunate to have them
here, and it is an unusual courtesy, Mr. Chairman, but it is
typical of the way that you run this committee.
I note and see many of our miners families that are here
that have joined us. As you mentioned, we had the good
opportunity to meet with a number of them. I found that just in
that couple of hours--I know you did as well and our
colleagues--that their insights into these issues of safety and
security and technology was enormously profound, and not just
interesting, but I thought incredibly insightful. I hope at
some time or other, those of the families that have that kind
of awareness and understanding, I hope they can have their
contribution to this record because I do think it is enormously
important and would be very, very valuable to us.
Let me just say, we have got a number of my colleagues
here, it seems we have got three basic kinds of issues. One is
the resources. Money isn't everything, but it is a clear
indication of where your priorities are, and if you are not
going to give NIOSH the kinds of resource to be able to do the
job and we have to rely on the initiatives of Senator Byrd,
Senator Specter, Senator Rockefeller to try and boost up those
figures, and you only have NIOSH able to have their equipment
to test for black lung 2 weeks out of every year, we know that
there is some problem, and we have enforcement, when we have
penalties, it is always pleaded out to be the least amount
after their fines for safety issues.
It doesn't do much good to raise the maximum penalties if
the whole tradition is to go for the minimum amount of
penalties, and that has been certainly a part of the real
tragedy over the period of the last years. So the penalties are
just sort of a matter of the cost of doing business rather than
recognizing these are real men and real women and real families
that are doing extraordinarily dangerous and difficult work. So
that is important.
I was amazed to read the fact that many of the safety and
security ideas that were in existence a number of years ago
were effectively eliminated from the requirements from MSHA and
now some of those are being reconsidered, which is useful, but
is also awfully late. I was thinking about what they did about
abandoning in 2001, for example, the emergency rules to improve
the performance of emergency oxygen devices. This was an item
MSHA proposed to enact in 1999, and like so many others, it was
removed from the Agency's agenda by Assistant Secretary
Lauriski. He was quoted recently, just 3 weeks ago, as saying
in retrospect, maybe we ought to have had the requirements for
more caches.
I think the question I would have really today, Mr. Dye, is
to ask you will the Agency have not just studies or proposals,
but really concrete final regulations to require that every
mine in the country has the best and most up-to-date technology
and practices on communications, on oxygen, on rescue teams, on
training, and keeping clear passage ways for ventilation,
escape to save miners' lives and protect their health? What
will you do to show that we value the miner's life in America
as much as they do in Australia and as much as they do in
Canada and that a miner's life is precious and must be
protected no matter how large or small the size of the mine?
Mr. Dye. I certainly agree with that sentiment. We will, of
course, and we have the responsibility to look at all of those
things, particularly the technology and to evaluate it, and we
are going to do that as quickly as possible. As soon as we do
that, we will look at what is appropriate to do in terms of
regulation with those things. Some of them, I have to say in
all candor, particularly in the communications area, have
limitations. All communications equipment has limitations. We
want to be realistic and make sure that everyone, including
yourself and the other members, understand what those things
are capable of doing and what they aren't.
I certainly have no objection and the statute contemplates
technology forcing, but we want to make sure that the
technology can be and most likely that it is going to be
improved and extended into the future.
Senator Kennedy. Well, Mr. Dye, I just want you to re-read
the excellent hearing that we had, which Senator Isakson had,
15 or 18 different leaders with different types of technology,
also those that were familiar with what was happening in
Australia, some that had also been involved in the Naval
research program, others in the private sector who have a long
life experience. You cannot listen to those presentations and
not recognize that in the areas of communication, in all of
these areas, there is new kinds of technology, new
opportunities, and new ways and paths for protection. The real
kind of issue and question is whether you are going to be
energetic enough, restless enough, tireless enough to make sure
that we are going to implement them. Are you going to give us
the assurance that if you haven't the legislative power to do
it, that you are going to come back to the Congress and make
the request of Congress for the additional kinds of authority
so that we can get these safety measures working and in order
and in place?
Mr. Dye. Yes. I mentioned in my opening statement that
since Sago we have had 70 different proposals that have come
in.
Senator Byrd. I can't hear you.
Mr. Dye. I'm sorry. I will try a little louder again,
Senator. Is that better?
Senator Byrd. Yes.
Mr. Dye. OK. We have had 70 different proposals that have
come in, and we are winnowing through those and looking at the
most promising ones. With respect to some that you mentioned,
either this week or early next week, we are sending a team to
Australia to look at a couple of those systems. We requested
from the manufacturer a complete system on the tracker system
to evaluate. We are not able to obtain it. So we are going to
Australia to look at it, and we are, in fact, taking someone
from our sister regulatory Agency in West Virginia and we are
paying for that person to go to Australia with us.
So we are moving very quickly to evaluate these things, and
I can assure you, Senator, if we find the technology that is
appropriate and looks promising at this point, we will take
action to make sure that is done.
Senator Kennedy. My time is going to expire. So what about
Canada did they require 36 hours of breathable air? Are you
going to send a team up there? Have you got all the information
that you need?
Mr. Dye. Are we talking about with respect to the rescue
chambers up there?
Senator Kennedy. Yes.
Mr. Dye. I mentioned holding a workshop here with NIOSH in
April. We are going to have people come internationally to work
on those issues.
With respect to rescue chambers, it is a little bit
different with metal/nonmetal than it is in coal. In fact, we
require rescue chambers in metal/nonmetal mines where it takes
more than an hour to get out of the mine. We have, I believe,
27 or 28 of those spread out in various parts of the country,
but you have to remember a coal mine is just fuel. You are
surrounded by fuel, unlike a metal/nonmetal mine where if you
have a fire, it is usually a piece of equipment or something
burning. Fumes and smoke come down to perhaps where you are.
Hopefully you are a little ways away from it.
Now, a coal mine, the fire can come to you and you have the
risk of an explosion. So the kind of device that you use in
this circumstance has to be considerably more robust.
Senator Kennedy. Well, what I would suggest is that you
bring in and include on your team some miners as well that have
understanding and experience.
Just, finally, would you comment about the penalties? You
saw the Times story today, the Sago Mine, over 200 safety
citations last year, almost half of which were serious and
substantial. The maximum fine the company paid was $440, less
than one-thousandth of one percent of the $110 million profit
for last year reported by the company.
Mr. Dye. Yes.
Senator Kennedy. The fines issued are notoriously low and
are often reduced. For example, the explosion at the Jim
Walters resource mine in Alabama in 2001, where 13 miners were
killed. MSHA originally issued a penalty of 435,000, but an
administrative law judge at the Mine Safety Review Commission
reduced it to a $3,000 penalty in a case where 13 miners were
killed. The Secretary is appealing this, but this shows just
how faulty the whole system is.
Mr. Dye. Well, like you said, we don't agree with the
administrative law judge and we have appealed that. Those are
very difficult cases.
Now, with Jim Walters, remember--well, I will tell you that
they had two explosions there and then they flooded the mine.
So that took a toll on the available evidence. Nonetheless,
just like you see on CSI on television, our cameras are in
there for weeks at a time gathering evidence, and we believe
that we have sufficient evidence to sustain the $430,000 that
we assessed, but we didn't make it past the administrative law
judge. We are appealing it and we will carry that as far
forward as we have to.
Senator Kennedy. Well, you didn't have the evidence for
$430,000 only evidence for $3,000?
Mr. Dye. Well, no. I don't think that is correct. I think
that is what the administrative law judgment thought. we don't
think that.
Senator Kennedy. In any event, it is illustrative of the
fact that these penalties are missing achieving the kind of
safety that I think all of us demand. We understand progress
has been made, but when we have the kind of loss of life that
we have seen, we know we can do better.
I want to thank the Chairman and thank the members of the
committee. We are in markup on the immigration bill in the
Judiciary Committee today. So I particularly appreciate the
courtesy of the chairman and the other members for letting me
ask questions.
The Chairman. We thank you for your participation and your
expression of urgency that all of us have noted is leading us
to do some nontraditional things with the committee to get this
solved as quickly as possible and to have as much input as
possible. We always thank you for your participation, and I
would now call on Senator Byrd, who also is not on the
committee, but has played a great role in the urgency that we
have been working through the problems to make sure we get some
solutions.
Senator Byrd.
Senator Byrd. Thank you, Mr. Chairman.
Mr. Dye, can you speak up a little bit?
Mr. Dye. I will certainly try, sir.
Senator Byrd. How is that?
Mr. Dye. I certainly will try.
Senator Byrd. Don't be afraid.
Mr. Dye. Oh, I am not afraid. I have a voice.
Senator Byrd. Don't get nervous.
Mr. Dye. I am not nervous.
Senator Byrd. Just speak into the mike.
Mr. Dye. I will try.
Senator Byrd. We will see.
In your testimony, you said that MSHA is doing all that is
possible to ensure the safety of miners, and from what I have
seen, you are doing what is required by the law, nothing more.
What examples at the Sago and Alma Mines can you give where
MSHA did more than what is required by the law?
Mr. Dye. Well, I am glad you asked that question. At Sago,
starting in late 2004 and 2005, when it appeared the incident
rate was going up at that mine, our staff there started
increasing their attention in that mine. They increased the
number of onsite hours that they had spent at that mine from, I
think, 405, I believe, up to about 744, about a 94 percent
increase. They issued, as you mentioned, a large number of
penalties and orders, used closure orders 18 times.
Now, if I could just mention that people sometimes fixate
on penalties. Orders, closure orders, are your biggest hammer.
Senator Byrd. Closure orders?
Mr. Dye. Yes, sir.
Senator Byrd. How often have they been used? How many have
been closed?
Mr. Dye. Well, 18 times, they have actually closed the area
affected by the violation.
Senator Byrd. Can you say that again?
Mr. Dye. The law allows you to close an area affected by a
violation, and we used that 18 times in Sago in 2005, which is
a fair bit for a mine that size.
Senator Byrd. Can you give the committee examples of the 18
times?
Mr. Dye. Oh, gosh. The particular areas of those?
Senator Byrd. What?
Mr. Dye. Well, they used them for, I believe, rock falls,
ventilation violations. There was a whole laundry list of
things, that when we find a violation that has a serious affect
on the mine and there has been a failure of the operator to
correct that, then the inspector can just close that area of
the mine until it is abated, but as soon as it has been abated,
the law allows them to re-open.
Opening Statement of Senator Byrd
Senator Byrd. Let me make my opening statement. Your
testimony lists a number of initiatives and emergency rules
that MSHA is pursuing but not yet implemented. Let us take a
look at today's Charleston Gazette, Charleston, West Virginia,
by Ken Ward.
A rule to give the Nation's coal miners additional
emergency oxygen has been delayed while the White House
continues to review it, Government officials said this week.
The United States Mine Safety and Health Administration
announced the rule February 7th, but had not put it into affect
by publishing it in the Federal Register. MSHA officials
submitted their proposal to the White House's Office of
Management and Budget on February 14th, a spokesman said. OMB,
which must sign off on the Agency rules, sent the proposal back
with comments and questions.
On Tuesday, MSHA officials submitted a revised version. Now
they are again waiting for the White House. Under growing
pressure following a series of mining accidents in West
Virginia, MSHA said it would implement the oxygen supply rule
as a temporary emergency standard when Federal law allows MSHA
to implement emergency rules only if miners are exposed to
grave danger. Since passage of the 1977 Mine Safety Act, MSHA
has used this authority only twice.
Most recently, the Agency used an emergency rule to modify
mine evacuation guidelines following the death of 13 miners at
the Jim Walter Resources No. 5 Mine in Alabama in September
2001. Details of the MSHA oxygen supply plan have not been made
public. MSHA's spokesman Dirk Fillpot would not discuss his
Agency talks with OMB about the emergency rules. ``That is all
something considered part of the deliberative process,''
Fillpot said. ``You can get the final draft once it is
completed.''
Alex Conat, a spokesman for OMB said, ``You are making a
mountain out of a molehill; this is a routine process.'' Conat
said, ``We work with agencies all the time.'' In a phone
interview, Conat refused to discuss what questions or concerns
OMB had about the MSHA rule. Later, he e-mailed a prepared
statement in which he said that MSHA did not make any changes
to the rule at OMB's request, nor did the OMB staff ask for
any. MSHA has said that its emergency rule would require
lifelines to guide miners safely out of mines and immediate
notification by operators of accidents and additional emergency
training for miners.
In West Virginia, Governor Joe Mansion has already pushed
through legislation to require mine operators to install
wireless communications and miner tracking devices in all
underground coal mines. Over the last month, industry officials
and MSHA have repeatedly questioned whether those devices will
work.
Bob Friend, an Acting Deputy Labor Secretary for MSHA,
continued that effort during a House Committee hearing
Wednesday in Washington. Friend told lawmakers that it is
difficult to operate wireless communications from the surface
to miners underground.
What about that? Difficult.
``There is a lot of ground over our mines, and it is
difficult to go through that much ground,'' he told the House
Education and Work Force Subcommittee in a hearing. Under
questioning from Representative Major Owens, Democrat of New
York, National Mining Association Lobbyist Bruce Watzman also
questioned the wireless devices.
Why can't we get our act together? Why did 21 coal miners
die this year before MSHA took the steps and initiatives in the
emergency rules that MSHA is pursuing but have not yet
implemented? Why weren't rules such as those addressing belt
air ventilation in 2004 addressed before these critical
initiatives?
Mr. Dye. Well, with respect to what you said earlier----
Senator Byrd. Speak up louder so the audience can hear you
back there.
Mr. Dye [continuing]. I share your frustration, but, in
fact it is moving through, our regulation is moving through,
relatively speaking, very fast. We expect that--I hate to
predict, but within a very few days, we expect that we will be
able to publish that emergency legislation.
Senator Byrd. How much is a very few days?
Mr. Dye. Well, you know, it is not in my control. My sense
of it is that it is almost done. Their concerns were minor
clarifications. So it shouldn't take them long.
Senator Byrd. Well, give us something better than it
shouldn't take us too long.
Mr. Dye. Well, again, that is when they clear it. So that
is beyond my control, but I don't expect that to be long.
Senator Byrd. Can't you needle them a little bit?
Mr. Dye. Well, there are others needling them, actually.
Senator Byrd. We have known about these problems since
1995. That is almost 100 years ago, 1995, isn't it?
Mr. Dye. Well, it seems like it.
Senator Byrd. You have had the opportunity to do something.
Nothing has happened. It has been 25 years since mine rescue
rules were updated. How about that? Twenty-five years, that is
almost half as long as I have been on this Earth.
It has been 25 years since mine rescue rules were updated.
It has been 15 years since communications requirements have
been updated. How much longer do we have to wait?
Mr. Dye. Well, like I said, we are moving ahead as fast as
we can go, Senator.
Senator Byrd. Well, that is not good enough. How much
longer are we going to have to wait?
Mr. Dye. For the emergency rule? Like I said, a very few
days.
Senator Byrd. When?
Mr. Dye. A very few days.
Senator Byrd. How much is a very few days?
Mr. Dye. As I said, it is not under my control, but my
sense of it is that it is going to happen shortly.
Senator Byrd. When will MSHA publish its emergency standard
on mine rescue training, accident notification, self-contained
self-rescuers, and lifelines?
Mr. Dye. As I said, as soon as it is cleared.
Senator Byrd. What?
Mr. Dye. As soon as it is cleared by OMB, it will be sent
to the Federal Register.
Senator Byrd. Today's Charleston Gazettet reports that the
White House is delaying a rule for emergency oxygen. I read
that. Why is that?
Mr. Dye. I don't sense that at all. As a spokesman said
there, it is part of the normal clearance process. All
regulations have to be reviewed by OMB. That has been in every
administration that I can remember, and they are moving very
fast on this one.
Senator Byrd. Why did MSHA not update these rules before
the Sago and Alma tragedies?
Mr. Dye. Well, I have only been here for a short time, but,
you know every--I don't know, but I have been at MSHA for a
little over a year. So I really don't have a recollection back
beyond that, but I will tell you that one of the sad but
fortunate things after a major tragedy, there is always a great
leap forward in these kinds of things, and we take advantage of
that and we are going to make some progress here.
Senator Byrd. Now, when we can expect your taking advantage
of that and making the progress?
Mr. Dye. As I said, in just a very short while, Senator.
Senator Byrd. Gee, whiz. In a short while, people are dying
in coal mines. They die in a short while too. When are you
going to get off your duff? When?
Mr. Dye. Well, I don't think I am on my duff, Senator, and
I agree with you. I understand your impatience. It is not in my
hands at the moment, but the minute that we get that back, I
will send it to the Federal Register.
Senator Byrd. Mr. Chairman, I want to thank you for what
you are doing. I want to thank Senator Kennedy and Senator
Rockefeller and Senator Clinton.
All my life, I have been with coal miners. I know the
stories. I know the tragedies. I know the weeping. I know about
the sobs and the tears that are shed. It is a tragedy that we
have to wait until coal miners are killed.
Have you ever been in a coal mine?
Mr. Dye. Yes, sir.
Senator Byrd. When?
Mr. Dye. The last time was several months ago.
Senator Byrd. Several months ago.
Well, Mr. Chairman, I will wait another round for further
questions. I am not on the committee, but you are kind to let
me ask these questions. I may have to wait a long time, but you
are a friend and a friend of the coal miners.
The Chairman. Thank you. We extended the time there, and I
appreciate your participation in this process.
Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman. I have tremendous
admiration and empathy for the position that the two Senators
from West Virginia are in. I would acknowledge, however, that
our job here is not to rewrite history, as disappointing as
parts may have been, but it is to make history by making sure
things don't happen again. And all of us had responsibility
since 1995. So there is fault to go around. I imagine that
everybody in this room that is in an elected or appointed
office has some of that responsibility.
Senator Byrd. Will the Senator yield?
Senator Isakson. Sure.
Senator Byrd. Lord Byron said, ``History with all her
volumes vast, hath but one page.''
Senator Isakson. You know, Senator, my goal in life is
before I leave the Senate to have made one speech anywhere
close to the caliber of your speeches or know quotes anywhere
close to your ability.
I notice, Mr. McKinney, that you are the administrator and
Mr. Dye is the Acting Director; is that right, Assistant Acting
Director.
Mr. McKinney. Yes, sir.
Senator Isakson. Well, without taking all 5 minutes of my
time, Mr. Dye deserves a break. I would like to see if you have
any comments regarding what Mr. Dye had to say in response to
those answers, because I believe your positions would reflect
that of the Administration. Is that not correct?
Mr. McKinney. Yes. Just to respond to why something wasn't
done beforehand, I think if you look at any time back--I have
spent 36 years in the mining industry. So I have some
understanding of it, but if you look at the 1969 Act Farmington
and Finley caused us to rethink what we do in the coal
industry. If you look at the 1977 act, Scotia brought that
about, and we have had a terrible disaster at Sago, and I think
it behooves us to sit and look at things that we need to do. I
wished I had had the foresight and I was a soothsayer and I
could have seen this coming, because I guarantee there is
nobody here that is anymore hurt about this than I am. I didn't
have that, but I think we all have to come to terms now that we
have to do something positive. We have to agree upon that and
we have to find the technology and we have to move forward.
Now, we can debate what we should have done in the past, but
that is not going to help the future.
So that is where I stand on the issue. I think there are
things we need to do technology-wise. I have served on a mine
rescue team and I understand the issues associated with
communication underground. I think it can be overcome. I think
we have to explore all avenues to do that. I think we have to
look at refuge chambers, but they have to be doable. We have to
understand exactly what we are doing with the second
explosions.
Last week, we had an explosion in Alabama, the Shoal Creek
Mine. We were very fortunate. We did the evacuation process. We
got everyone out of the coal mine, but naturally people wanted
to go back in there and we didn't allow them to. Less than 12
hours later, we had a second occurrence underground and then
another one the next day. So once you stay underground in any
kind of chamber, if you choose to do that, you are susceptible
to explosions.
So there may be technology out there and we should explore
that. If it is possible, we should make it available.
Senator Isakson. I appreciate that answer, and to that end,
Senator Clinton was kind enough to appear and be at almost all
of our 2 hour hearings that we had. We heard from experts from
around the world. I learned two things from that. First of all,
there are technologies in Australia and other parts of the
world that are being used that not only have promise, but are
performing, although 100 percent reliability in a mine
environment, depending on the type of mine, is a difficult
thing to accomplish.
To that end, Dr. Kohler, you made a comment--and I wrote it
fast so if I misquote you, you can correct it--but you asked
the rhetorical question shouldn't Government play a role in the
product development, and I think you were referring then to
product development of these emerging products that are
providing some answers to the communication questions, some
answers to the location question, some answers to the storage
question, but not the total answer. I would just ask you, being
at NIOSH--and you were at the whole hearing. You sat through
the entire hearing we had--what can Government do and what role
can it play to accelerate those product developments that have
demonstrated promise that we want to get to full productivity?
Dr. Kohler. Yes, Senator. I think there are a couple of
things. First of all, Government can help everyone to recognize
that there are some things that are in the here and now. There
are things that we can do today and we should move forward and
we should do those things today, and then we have taken care of
helping out some group of mines and mine workers.
Second, there are other technologies which would solve the
problem in cases where today's technology maybe won't meet the
bill, and those are the ones we have to focus on getting into
the marketplace. Toward that end, I think that, for example,
there are a number of concepts, some that have been on the
shelf for many years that address some of the emergency
communication issues. If Government made resources available,
those technologies could be built into prototypes. They could
be field-tested. Manufacturers could develop some confidence in
their ability to work, and then perhaps they would take the
lead and bring them to the marketplace.
Senator Isakson. I am going to take advantage, Mr.
Chairman, if you would let me ask one more question or make a
comment.
I learned a lot from the miners that met with us in West
Virginia after meeting with the families of the miners that
were lost, and I learned a lot of from the UMW gentleman that
testified on that panel the day you sat in. We had the
roundtable, and I asked him this question, and there are lots
of miners in the room, so I am sure I will be educated if I
didn't answer correctly, if it didn't reflect; but one thing I
appeared to learn from all of them is that the most important
priority for the miners is to give them a way to get out first,
that they are in control of their environment with the
opportunity to get out first is goal one. All the other things
that you do are great. Rescue teams are great, but they can't
go in if the environment won't tolerate their presence there.
We know that from Sago, because those guys went in. That second
crew, they tried to go in against what would be protocol to
save their fellow miners, but they couldn't get past the
barriers.
So I would just say as we work with all of you on these
solutions, that if that is, in fact, what the miner tells us,
that we don't forgot that empowering them to save themselves
first is job one. And the last part on that is on these
approvals that Mr. Dye was questioned on quite extensively
about various things, I have learned that potash mines are
different from coal mines and metal mines are different from
potash mines, but in this approval, are we so tied up in the
approval process that we don't allow--do we give companies that
are willing to test new equipment waivers to test in the mines,
or do we wait until we have 100 percent foolproof proof that it
works before we let anybody use it?
Can somebody answer that real briefly so I don't take too
much of Senator Clinton's time?
Mr. McKinney. Yes. There are times and situations where we
do give waivers to people to put it in the mines before we
permanently approve it, and I think that is a prudent process.
Senator Isakson. So do I.
Mr. Dye. Remember that the approval for permissibility is
only for gassy mines. There are a few metal/nonmetal gassy
mines, Trona being one of them, but most times you don't have
to go through that process to use equipment, say, in a coal
mine.
Senator Isakson. Well, I know that there are liability
issues that companies have to concern themselves with, there
are responsibilities issues you have to concern yourself with,
but it seems to me in that hearing we had the other day that if
we became catalyst for test beds of new products in the mines,
that would be an incentive for these companies to go the next
leg of development, which is why I asked the question.
Mr. Dye. Yes. In fact, we do, and Dr. Kohler mentioned
proximity detectors where we work very closely with companies
to test that and work with them.
Senator Isakson. That is what you are going to see in
Australia, by the way.
Mr. Dye. Yes.
Senator Isakson. Proximity detectors by zone is one of the
things we heard in that testimony as well.
Mr. Dye. Yes. By the way, we are going to also go look at
some rescue chambers there also.
Senator Isakson. Thank you, Mr. Chairman.
I apologize, Senator Clinton, for taking some of your time.
The Chairman. Thank you.
I will call on Senator Clinton next and then save Senator
Rockefeller for the clean-up batter on this panel.
Senator Clinton. Mr. Chairman, I would be more than happy
to yield to Senator Rockefeller.
The Chairman. That is okay.
Senator Clinton. OK. Well, I think our witnesses, obviously
this has to be a partnership within a regulatory framework. It
needs to be a partnership between the Government and the mining
companies and the miners, and it appears to me that we have not
been as aggressive in pushing safety measures and in deploying
new technology as we should have and could have been.
Mr. Chairman, I ask unanimous consent to submit for the
record the New York Times story today, ``U.S. is Reducing
Safety Penalties for Mine Flaws.''
The Chairman. Without objection.
[The New York Times story follows:]
[From The New York Times, March 2, 2006]
U.S. Is Reducing Safety Penalties For Mine Flaws
(By Ian Urbina and Andrew W. Lehren)
Craigsville, W.Va.--In its drive to foster a more cooperative
relationship with mining companies, the Bush administration has
decreased major fines for safety violations since 2001, and in nearly
half the cases, it has not collected the fines, according to a data
analysis by The New York Times.
Federal records also show that in the last 2 years the Federal mine
safety Agency has failed to hand over any delinquent cases to the
Treasury Department for further collection efforts, as is supposed to
occur after 180 days.
With the deaths of 24 miners in accidents in 2006, the enforcement
record of the Mine Safety and Health Administration has come under
sharp scrutiny, and the Agency is likely to face tough questions about
its performance at a Senate oversight hearing on Thursday.
``The Bush administration ushered in this desire to develop
cooperative ties between regulators and the mining industry,'' said
Tony Oppegard, a top official at the Agency in the Clinton
administration. ``Safety has certainly suffered as a result.''
A spokesman for the Agency, Dirk Fillpot, defended its record,
pointing out that last year the coal industry had 22 fatalities, the
lowest number in its history.
``Safety is definitely improving,'' Mr. Fillpot said.
A spokeswoman for the National Mining Association, Carol Raulston,
agreed.
``The Agency realized in recent years that you can't browbeat
operators into improved safety, and this general approach has worked,''
Ms. Raulston said. ``The tragic events of this year have given everyone
pause. But I don't think it means we want to abandon what we have found
works.''
Federal records show that fatalities across all types of mining
have stayed relatively stable. In each of the last 3 years, 55 to 57
miners have died in all areas of mining. Experts say a long-term
decline in coal mine fatalities is in part a result of growing
mechanization.
Mr. Fillpot also said delinquent cases had not moved to the
Treasury Department since 2003 because of computer problems. He could
not say when the problems would be corrected. ``Referrals from MSHA to
the Treasury Department have been impacted by technical issues on both
ends, which we are working to resolve while maintaining an aggressive
record on enforcement and collections,'' he said.
Although the Agency has recently trumpeted Congressional plans to
raise the maximum penalties, Federal records indicate that few major
fines are issued at the maximum level. In 2004, the number of major
fines issued at maximum level was 1 in 10, down from 1 in 5 in 2003.
Since 2001, the median for penalties that exceed $10,000, described
as ``major fines,'' has dropped 13 percent, to $21,800 from $25,000.
Also troubling, critics say, is that fines are regularly reduced in
negotiations between mine operators and the Agency. From 2001 to 2003,
more than two-thirds of all major fines were cut from the original
amount that the Agency proposed. Most of the more recent cases are
enmeshed in appeals, so it is impossible to know whether that trend has
continued.
``The Agency keeps talking about issuing more fines, but it doesn't
matter much,'' said Bruce Dial, a former inspector for the mine safety
Agency. ``The number of citations means nothing when the citations are
small, negotiable and most often uncollected.''
Before the January disaster at the Sago Mine near here, where 12
miners died, the operator had been cited 273 times since 2004. None of
the fines exceeded $460, roughly one-thousandth of one percent of the
$110 million net profit reported last year by the current owner of the
mine, the International Coal Group.
At a House oversight hearing on Wednesday, Agency officials
repeatedly cited the frequency of fines against Sago in the year before
the accident as proof of aggressive enforcement. Exasperated,
Representative Lynn Woolsey, Democrat of California, replied that maybe
those fines had little effect because many were for $60. That point set
off applause from audience members.
``Most fines are so small that they are seen not as deterrents but
as the cost of doing business,'' said Wes Addington, a lawyer with the
Appalachian Citizens Law Center in Prestonsburg, Ky., which handles
mine safety cases. Using Federal records, Mr. Addington released a
study in January indicating that since 1995 nearly a third of the
active underground mines in Kentucky had failed to pay their fines.
``Operators know that it's cheaper to pay the fine than to fix the
problem, ``Mr. Addington said.'' But they also know the cheapest of all
routes is to not pay at all. It's pretty galling.''
Larry Williams, who now lives in Craigsville, 50 miles east of
Charleston, knows this frustration well. In 2002, he was working with a
fellow miner, Gary Martin, in a deep mine near Rupert, 25 miles south
of here, when the roof collapsed on them. Mr. Martin died instantly,
and Mr. Williams was trapped for more than 4 hours under several
thousand pounds of rock that crushed his pelvis and both legs.
The men had been pillaring, or second mining, which involves
extracting the last remaining coal in tunnels by scraping it from the
coal pillars used to hold up the roof. This method is considered
extremely dangerous. Federal regulations aim to reduce the risk.
In this case, Federal investigators found that the regulations were
not followed. The operators were fined $165,000. Those fines have not
been paid, even though the mine owner, Midland Trail Resources, which
did not reply to requests for comment, remains in business, according
to State records.
``It makes me mad,'' said Mr. Williams, 50, who is paralyzed
through much of his right side. ``One dead and another man's life
ruined, and they pay nothing? It just doesn't make sense.''
On Feb. 14, Senator Arlen Specter, Republican of Pennsylvania,
introduced a measure to raise the maximum penalty that the mine safety
Agency can assess for failing to eliminate violations that cause death
or serious injury, to $500,000, from the current $60,000.
The law would also prohibit administrative law judges from reducing
fines for violations deemed flagrant or habitual.
Ellen Smith, editor of Mine Safety and Health News, an independent
newsletter that covers the industry, said that although the law was a
positive step, one regulation that continued to need attention allowed
fines to be lowered for smaller or financially troubled mines.
``The result of that provision is that it helps keep some habitual
offenders in business,'' Ms. Smith said.
Cecil E. Roberts, president of the United Mine Workers of America,
said changes in the law were vital but so were changes in the Agency.
``If you don't have enforcement along with a strong law, then you don't
have a law,'' Mr. Roberts said. ``The current Agency mentality is to
cooperate with mine operators rather than watchdog them, and safety
suffers as a result.''
Even when Congress passes strong safety laws, the Agency can write
regulations that work around them. In 2004, for example, after years of
pressure belts not just for moving coal but also to draw in fresh air
from outside. A law already existed preventing such safety regulations
because of concerns that in the event of a fire, the belts would carry
flames and deadly gases directly to the work area or vital evacuation
routes.
Though the investigation is not complete, many experts say this is
probably what occurred at the Aracoma Alma No. 1 Mine in Logan County,
W.Va., where a fire left two miners dead on Jan 21.
Mr. Fillpot said his Agency was revising the regulations on
imposing penalties. He also pointed to civil suits filed by the Agency
in what he said was an increasing effort to force operators to pay
millions of dollars in unpaid penalties.
``You can expect to see more of these types of efforts from us in
the coming months,'' Mr. Fillpot said.
Mr. Williams, the miner who is partly paralyzed, remains skeptical.
``All I know is the roof collapsed only days after a Federal
inspector looked right at those pillars and saw that the operator was
having us do illegal things,'' he said. ``In these mines, laws don't
matter.''
Senator Clinton. Thank you.
In reading this article and in following the issues around
mine safety, I do think we have to do a better job on enforcing
the rules we already have. That is the first order of business.
We have rules. We need to improve those rules, but let us start
with enforcing the rules that we have, and it was discouraging
to read that Federal records show that in the last 2 years,
MSHA has failed to hand over any delinquent cases to the
Treasury Department for further collection efforts as it is
supposed to occur after 180 days, and I understand that the
explanation from MSHA is that the delinquent cases weren't
turned over due to uncorrectable computer problems and that
cases have not been removed since 2003.
Is that correct, Mr. Dye.
Mr. Dye. Partially, yes. It has been a nightmare, quite
frankly. We have changed over to a new computer system. We were
not able to do that for a while as we developed our new data
base, but since, I think, May of 2005, the new computer system
that they have been using at Treasury has not been able to
receive those either.
Senator Clinton. Well, can you walk them across the street?
Mr. Dye. I wish we could. Believe me, I wish we could.
Senator Clinton. Well, I don't see any reason why you
can't. I mean, part of the challenge here is to enforce the
laws we have. What kind of message does it send? Most of the
mining companies in this country, I would assume--I certainly
don't have the experience that my dear colleague Senator Byrd
or Senator Rockefeller have, but I would assume that most of
the mining companies are obviously concerned about the safety
of their miners. Some aren't as much as we would want them to
be, but everybody needs to be pushed to do what is expected. I
mean, that is human nature.
You know, obviously if we have got 100 things to do and 10
of them are pressing, the other 90 are going to fall by the
board, and it disturbs me that you have got low fines in the
first place, small, negotiable, and often uncollected, as the
article said. Some of these fines are as low as $60. At Sago,
the operator had been cited 273 times since 2004, and none of
the fines exceeded $640. Now, that is roughly one-thousandth of
one percent of the $110 million net profit reported last year
by the owner of the mine. I don't think you are going to get
somebody's attention in a global economy if you are fining them
$640 and you don't even collect it.
So the first order of business, let us enforce the laws we
have. Second order of business, let us improve those laws and
regulations, and obviously I am concerned that we did have some
regulations that were proposed at the end of the Clinton
administration: One was regarding revised coal mine standards
on self-rescue devices in order to allow miners adequate time
to escape, because I agree with Senator Isakson. The first
order of business, get our miners to safety, get them out, give
them the tools they need to rescue themselves while we are
trying to figure out how to get there to help out.
The proposed rulemaking also called for manufacturer
expiration dates and periodic inspections to ensure the fully
functioning of these self-rescue opportunities. The standards
were withdrawn in September of 2001, and the explanation was in
light of resource constraint and changing safety and health
regulatory priorities. Now, to me, we did the work on this
proposed rulemaking. It was withdrawn in 2001. Is this one of
the rules you are going to take another look at now?
Mr. Dye. Actually, it wasn't a proposed rule. It was an
advanced notice of proposed rulemaking, which means it didn't
have a proposal. It asked questions to be answered. There was
never any proposal.
Senator Clinton. Well, but you didn't pursue that. It was
an advanced rulemaking proposal that didn't go to rulemaking.
Is that basically right?
Mr. Dye. Correct.
Senator Clinton. OK. Now, another Clinton administration
requirement withdrawn would have required mines to purchase
conveyer belts with improved flame tests and approval standards
after a year. This decision directly, the decision not to
pursue the flame-tested approved conveyer belts, that decision
contradicted a study by NIOSH 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 it is outdated, and we know the Alma accident
was in part due to a coal conveyer belt catching fire. Where do
we stand on that proposed rule or advanced notice?
Mr. Dye. That was, in fact, a proposed rule. It dated from
1992. It sat on the regulatory agenda for 8 years and was never
acted on. Since that time, there were developments in
atmospheric monitoring systems and fire suppression systems,
and we made great advancement.
Senator Clinton. And those are rules or just voluntary
efforts by the mining companies?
Mr. Dye. No. Those are rules.
Senator Clinton. But I guess part of my concern here is
that we have to do several things in this committee. No. 1, if
we have rules on the books, why aren't they being enforced? If
we need more resources, why aren't we asking for many more
resources? No. 2, what are the rules that are needed? And then
number three, obviously we are going to look for new
technologies, but I have to say that the President's budget
proposal which we received a few weeks ago includes no increase
for enforcement activities at either OSHA or MSHA, not even in
coal mining in response to the recent disasters. The
Administration has not requested more inspectors to oversee
mines and other work places and, actually, the budget when it
comes to NIOSH, Dr. Howard, would be $250 million, $36 million
less than requested last year.
So we have some very significant challenges ahead of us,
and I just want to end with this final comment: We are hear
talking about mines and the safety of our miners, but I see a
deterioration in worker safety across the board and I see a
lack of commitment to investing in the technologies that will
protect our workers.
I can't help but mention, Dr. Howard, how pleased I am that
you have now been appointed to help oversee the health
consequences to first responders, workers, and volunteers at
ground zero. One of the problems we had on 9-11 is nobody could
talk to each other. We didn't have interoperable
communications. One of the problems we have in the mines, we
don't have effective communication. In Katrina, we did not have
effective communication.
We are all on notice, Mr. Chairman. We are on notice. We
have not done what we need to do to improve communications and
to improve worker safety and to upgrade technology and to
enforce the rules on the books as they are. So I appreciate
very much the chairman's commitment to working through these
issues, and under his leadership and the leadership of our two
great Senators from West Virginia, I stand ready to do what we
need to do to help protect our miners and to take a broader
look at worker safety in general.
The Chairman. Thank you.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I want to just make one observation to the audience, and
this is true under both Democratic and Republican
administrations, that the gentlemen who are testifying are not
testifying out of words and ideas which they, themselves,
created and just came up here and gave. None of the gentlemen
testifying can give testimony in a congressional hearing
without the approval of the Office of Management and Budget.
They have to go over to see if there is anything which is
inconsistent with what their policy is. So you can see already
an enormous conflict between OMB being overwhelmed by budget
problems and what they will allow these gentleman to say.
Second, I suspect that it rises higher than that. I suspect
that it goes to the Secretary of Labor, and I don't know
whether it goes to the White House or not, but that is an
extremely important point for families here and miners here to
understand. They are not free to speak what they want. That is
why they cannot answer questions as directly as perhaps they
might, because OMB doesn't want them to, doesn't want them to
have to commit. Again, this is bipartisan. It works in both
kinds of administrations.
It is the way that Government controls what happens. Now,
that can be good if what is happening is good. It is bad if it
means that we can't really get to the bottom of things. So
understand that. It is not their fault.
Walking across the street, Mr. Dye, you could walk it
across the hall to Secretary Chao and probably get some
answers.
One of the great problems in Federal Government, it strikes
me, are people who have jobs that they have had either for a
year or for years and they don't put themselves at risk. The
coal miners are put at risk every day because they cannot get
out of sorts with the chain of command, and the chain of
command rules, therefore the philosophy of the Administration,
be it Democratic or Republican, it rules and guides everything
that is going on in this hearing.
We all know that, but I wanted to say that so that you all
would know that. If you are not hearing answers that you would
like to hear, it may be because you wouldn't hear them under
any event, but it may be because they can't be given.
So I hope I have a little time left. The September 2003 GAO
report on mine safety found that MSHA was not requiring
mandated semi-annual inspections of ventilation and roof
support plans. Roof supports are overwhelmingly important in
mines. Nearly half of MSHA's districts had not completed these
technical inspections in what I would call a timely fashion. I
don't care what timely means; if they are not completed, they
are not completed.
Ventilation failures happened at Sago and Alma. The belt
line opening at Alma and the failure of seals at Sago both were
a fact of what took place. These must be seen as contributing
factors to the deaths of the West Virginia miners, and I want
to know what MSHA is doing to correct this problem.
Mr. McKinney. Sir, I would like to answer that question. I
was directly involved in that GAO report, and we did exactly
what Senator Clinton said. We had a computer issue. We ran
those inside a computer and we couldn't see them. We had
glitches. So what we had were hard copies of each one of those
reviews. Those reviews were done and they were documented in
writing.
The problem GAO had was that we didn't have any computer
system for oversight purposes. I personally gave them copies of
those and pointed out to them the work was done. We protected
the miners as we were charged to. The fact that the computer
doesn't work, I'm sorry about that, but I am more concerned
about us getting the job done. We wrote a letter of protect
back to those folks responding to that allegation and explained
to them very clearly that your statement is incorrect. We did
the work. You are right. We don't have the oversight
capability. We are going to build a data collection system that
will allow us to do that.
So I sit here today telling you I understand their
allegation. I just disagree with that allegation.
Senator Rockefeller. So what happens from this point
forward?
Mr. McKinney. Well, before this, we began to build a data
base, and they are back in the shop. I have a meeting with them
Tuesday, and hopefully this time they will not only see the
hard copies that prove that we did the work; they will see the
oversight where we have got it entered into our computer
system.
Senator Rockefeller. You briefed me at Sago, didn't you?
Mr. McKinney. Yes, I did.
Senator Rockefeller. And you did a good job. I congratulate
you for that.
Mr. McKinney. Thank you.
Senator Rockefeller. I want to get back to Senator
Clinton's point, because it is really befuddling, that is I
think the figure is every single mine infraction, the fine at
Sago was either $60 or $270, I believe. You can correct me if
you want. I went over 200. Now, I could not understand all of
the infractions because I am not underground every day, but I
could understand 100 of them, and no matter what they were and
how much they seemed to differ in intensity or effect, the
fines were all the same.
Now, I agree with Senator Clinton's point, the tiny
percentage or the fraction they represent is not an incentive,
but why would they all come to be the same? Why would all of
the infractions turn out to be exactly the same?
Mr. Dye. Well, all of them have not been assessed yet.
Senator Rockefeller. Well, I saw 200. Just deal with the
200.
Mr. Dye. The major ones, what they call the special
assessment, the more egregious ones, particularly the orders,
those have not yet been assessed and those will be much higher.
The way that works----
Senator Rockefeller. Wait a minute. I want to catch you on
that, because these went back and now you are saying they will
be higher.
Mr. Dye [continuing]. No. No. Some of them have not yet
been assessed.
Senator Rockefeller. I'm sorry, but there are 200 that have
been assessed and they have been given a numerical value of
worth.
Mr. Dye. Yes.
Senator Rockefeller. Which is extraordinary low. So forget
what hasn't been assessed. What has been assessed, how does it
get to be that way?
Mr. Dye. Well, there is a point system that is published in
the Federal Register, and depending on what the inspector
writes on the ticket, it goes in and then those are entered and
run through a computer system, and then they are all, whatever
they have on there, they are treated with whatever the point
system is for that particular infraction or its gravity or its
level of negligence. There are six things in the statute that
you have take into account. It is statutory, and all of those
things are applied. It is all in the Federal Register, like I
said. It is built into a computer program and it goes through
that and it churns it out.
So I am not sure that they are all exactly the same, but if
they have similar gravity, similar negligence, that sort of
thing, it also takes into account the size of the mine. That is
statutory criteria.
Senator Rockefeller. What worries me about your answer, and
I recognize, Mr. Chairman, my time is up, but what worried me
about your answer is that what you are saying is legally
correct, I am sure----
Mr. Dye. Factually correct.
Senator Rockefeller [continuing]. But there is no way that
there can be, just the 200 that I looked at and went through
page by page, that can come out to those two amounts, and not
just those two amounts. Nothing varied. It was either $60 or
$270, period, but the infractions varied enormously, and my
real point is that, one, if the final is going to be
predictable and, second, if they are that small, it really is,
as has been pointed out, a cost of doing business. It is much
easier for the company simply to pay the fine, not worry about
having to fix the problem. You said you would shut them down 18
times, but in sections, and I think what others are asking is
why don't you shut the whole mine down when things get bad.
Mr. Dye. No. We don't have an authority to do that.
Senator Rockefeller. I understand that, and that is not my
main question. I am referring to the 200, and there was no
sense in that, and they were very small fines and they were not
like putting on a fine at all. There was no behavioral
modification inducement to the coal company, in my judgment. Do
you want to respond?
Mr. Dye. I am sorry?
Senator Rockefeller. Do you want to respond?
Mr. Dye. Yes. I will go back and look at those. I don't
recall them being that uniform, but it is not that I don't
believe it. I will just go back and look at them.
The other things, can I tell some of the other things that
we did there? Because I think it goes with everything that
happened. Like I said, we shut down the mine or portions
affected 18 times, which on a miner operation, a miner section,
that could cost you $50,000 a shift. If you had a long-wall
section, that could cost you $150,000 or more in lost revenues.
In addition to that, Ray's staff in District 3 met 21 times
with that company, telling them that they needed to change what
they were doing, worked with them on that. When they had
problems, when they weren't doing their pre-shifts right, we
went in and retrained all of their pre-shift examiners,
arranged for educational field service personnel to come in and
do more training.
At the end, it escalated up. Their CEO was scheduled on
January 6th, unfortunately the timing, but to come in and meet
with Ray in Washington, telling them that they really needed to
change what they were doing. Like I said, they upped the
inspection hours there from 405 to I think 744, something like
that.
Senator Rockefeller. I want to be able to have a second
round. I don't want to wear the patience of our honorable
chairman.
The Chairman. Actually, in the tradition of this committee,
we leave the record open for 10 days. We submit additional
questions to the people that are on the panel and continue
gathering information that way, and we have extended the round
that we had considerably longer than we normally do; but we
find that we get more information, actually, from the written
questions than we do from the verbal questions. They can be
phrased more carefully and also they get into a lot more
detail.
Mr. Dye. I apologize, Senator. I wasn't meaning to
filibuster. I was trying to give additional information.
Senator Rockefeller. I understand.
Mr. Chairman, they do answer the questions?
The Chairman. They do answer the questions and the
questions and the answers become a part of the record as well.
Senator Rockefeller. For those of us not on the committee,
do we get to see those answers?
The Chairman. Yes, you do.
Senator Rockefeller. Thank you.
Senator Byrd. Mr. Chairman, may I just say one other thing?
MSHA had the legal authority to require better communications
and equipment, didn't use it. It had the legal authority to
assess tougher penalties. It didn't use that authority. Even
today, MSHA still has not implemented these critical safety
improvements, nor has it requested funds to replace the 217
safety inspectors lost since 2001.
So the case grows stronger every day for this Congress,
starting with this committee, to adopt the West Virginia
Delegation Mine Safety bill. We are just going to have to force
MSHA to act.
Thank you, Mr. Chairman.
The Chairman. Thank you, and I want to thank the panel, and
you can look forward to consider additional questions, I am
sure, and Dr. Howard and Dr. Kohler didn't get many yet, but I
had another dozen questions that I ran out of time before,
although I have to admit that about 10 of those are of a more
technical nature that will require some charts and numbers.
So thank you for your participation.
Our second panel today is composed of nongovernment
witnesses, all of whom have an extensive background in mining
and mine safety and who represent much of the diversified
constituency that deals with matters of mine safety on a daily
basis.
We have Dr. Tom Novak, who is the department head and
Holland Professor of mining and minerals engineering at
Virginia Tech in Blacksburg, Virginia. He holds an
undergraduate degree in electrical engineering from Penn State
University, a master's in mining engineering from the
University of Pittsburgh, and a doctoral mining degree from
Penn State. He is a licensed professional engineer, a fellow of
the Institute of Electrical and Electronic Engineers as well as
a member of the Society of Mining, Metallurgy, and Exploration
and the American Society of Engineering Education. He is the
author of a host of scholarly articles on various mine safety
issues.
The second panelist is Michael Neason, a certified mine
safety professional and the Administrator of Mining Practice
Specialty Group for the American Society of Safety Engineers,
ASSE. The group is composed of over 350 safety professionals
with extensive mine safety experience. Mike is a fifth
generation miner himself who began his career as a utility man.
He is currently in charge of the safety and health program at
the Midwest Region for Hanson Aggregates, a Kentucky-based
mining company.
The third panelist is Mr. Cecil Roberts, the president of
United Mine Workers of America, UMWA. UMWA has been a vocal
advocate of mine safety for many decades. Mr. Roberts himself
has testified before Congress on a number of occasions on a
variety of mining and mine safety issues and has always
provided valuable information as well as an important
perspective on these vital issues, and, of course, he was a
part of the briefing team for those of us who went down to the
Sago Mine. We appreciate that.
And Mr. Michael Peelish is appearing on behalf of the
National Mining Association. He currently serves as the senior
vice president for Safety and Human Resources for Foundation
Coal Corporation. Mr. Peelish holds an undergraduate degree in
mining engineering from West Virginia University and a law
degree from the same institution.
I want to welcome all of you. I look forward to hearing
your testimony this morning, and as with the previous panel, I
would ask that you limit your oral statements to 5 minutes or
less. Following everyone's statements, we will begin questions
again.
We begin with Dr. Novak's statement.
STATEMENTS OF MIKE PEELISH, SENIOR VICE PRESIDENT, SAFETY &
HUMAN RESOURCES, FOUNDATION COAL CORPORATION; MICHAEL E.
NEASON, AMERICAN SOCIETY OF SAFETY ENGINEERS, SAFETY DIRECTOR
AT HANSON AGGREGATES; DR. TOM NOVAK, C.T. HOLLAND PROFESSOR,
HEAD OF DEPARTMENT OF MINING AND MINERALS ENGINEERING, VIRGINIA
TECH; CECIL ROBERTS, PRESIDENT, UNITED MINE WORKERS OF AMERICA
Mr. Novak. Good morning, Mr. Chairman and members of the
committee as well as guests, Senator Byrd, Senator Rockefeller.
My name is Thomas Novak. I am the C.T. Holland Professor and
Department Head of Mining and Minerals Engineering at Virginia
Tech. I have been associated with the coal mining industry as a
miner, an engineer, a researcher, educator, and consultant for
the past 35 years, and I thank the committee for giving me the
opportunity to address the issue of mine safety.
The coal mining industry has made major strides to improve
worker safety over the past decades. In the last 15 years,
annual fatalities have dropped 76 percent from a high of 66 in
1990 to a low of 22 in 2005. Nevertheless, the tragic events
that occurred during the first 2 months of this year have
caused us all to pause and to re-evaluate our commitment to
mine safety.
I am not here today to propose a quick fix for the problems
of mine safety. Instead, I am here to recommend an overarching
approach through engineering and scientific research. The U.S.
Government's strong commitment to research and development will
provide the most effective means for improving mine safety.
Universities with mining engineering programs are ready to
partner with mining companies and Government agencies to
identify mine safety issues and to conduct interdisciplinary
research in order to address, eliminate, or at least minimize
safety hazards. University researchers are also prepared to
work with manufacturers to ensure the commercialization of
proven technologies.
Unfortunately, Government funding for mine safety research
has significantly decreased over the last few decades. Funding
dropped from a high of approximately $140 million in 1979 to
approximately $30 million in 1999 with the vast majority of
this amount going to in-house projects and personnel at NIOSH's
two research labs. Because of this drop in funding and the
dismantling of the internationally-renowned U.S. Bureau of
Mines in 1996, the United States has lost much of its expertise
in mine safety research. As a result, centers of excellence in
mining research have shifted to other countries such as
Australia. The remaining technical fragments of the U.S. Bureau
of Mines are now managed by NIOSH, operating under the Center
for Disease Control.
NIOSH's Office of Mine Safety and Health Research has been
responsive to the industry's needs, but it can only do so much
with its extremely limited contract research budget. The
decrease in contract funding has also devastated mining
engineering programs. In fact, only half of the programs that
existed 20 years ago exist today. A recent study commissioned
by the Society of Mining, Metallurgy, and Exploration, which we
refer to as SME, estimated that 300 to 400 graduates per year
will be needed to meet the demands of industry for the next 10
years. At the same time, SME reports that only 69 students
graduated last year with baccalaureate degrees in mining
engineering. Of the dozen accredited programs, only two
graduated more than 10 students last year. Keep in mind this is
for an industry that provides more than half of the Nation's
energy for electricity as well as the mineral products that are
vital for our defense, manufacturing, civil infrastructure and
national economy.
These are scary statistics since highly-trained mining
engineers will be needed to design and manage our country's
mining operations and deal with the complex issues of safety.
Along these same lines, over 60 percent of the mining
engineering faculty is over the age of 50 and one-half of all
of the faculty plan to retire within the next 10 years, thus
mining engineering education is at a critical juncture.
Research funding is necessary to produce the required Ph.D.
graduates to replenish our aging faculty.
In summary, I hope the committee will consider my
recommendations to institute a strong Government-supported
university research program. This program offers the best
method for addressing mine safety issues through a three-
pronged approach which provides: one, means for in-depth
multidisciplinary analyses and solutions to critical issues
that confront our mining industry through collaboration with
Government agencies, mining companies, and manufacturers; two,
a means for producing well-qualified mining engineers who are
trained to promote a mind-set of safety consciousness in the
design and operation of our mines; three, a means for regaining
our country's mine safety expertise through the training of
future researchers and mining engineering professors who will
ensure the sustainability of a vibrant mining engineering
profession.
I would further recommend that this program be administered
through NIOSH's Office of Mine Safety and Health Research or a
newly-created institute based upon this office rather than
MSHA. Research and enforcement should be kept separate and MSHA
should be permitted to totally dedicate its resources to
enforcement.
Mr. Chairman and members of the committee, thank you for
your attention.
The Chairman. Thank you.
Mr. Neason.
Mr. Neason. My name is Mike Neason, and I am a safety
manager for Hanson Aggregates. I coordinate the safety and
health programs for 35 operations in and around Kentucky. I
grew up in a mining family in Alabama and became the fifth
generation to work in the mines when I took my first job as a
utility man when I was a teenager.
Today, I am accompanied by Adele Abrams, who is ASSE's
national representative and she is also a certified mine safety
professional.
On behalf of ASSE and its mine practice specialty, I would
like to commend this committee for taking a critical look at
mine safety and health. Like most of the Nation, our members
were moved by the tragedies in the Appalachian coal region this
last winter. As a result, the ASSE assembled a task force to
address emergency preparedness and communications in mining,
and we look forward to providing some more specific conclusions
to this committee.
Our members live with safety and health issues in mines
every day, and from that vantage point, we have some general
perceptions that we would like this committee to consider.
First of all, as we move forward in improving safety and
health, it is important that the general trend in declining
fatalities and injuries and illnesses in American mines not be
wholly overlooked in light of the recent tragedies. There are
some things that are working very well in mining.
One of those positive things is NIOSH. NIOSH's mining
program has been an enthusiastic partner both with us at Hanson
and with the ASSE. As an independent Federal Agency responsible
for research and not enforcement, NIOSH is uniquely positioned
to reach out to producers, to labor, to academia, or whoever is
necessary to help solve a problem. Most importantly, they have
earned the trust and respect of miners, and as a result, they
have a great deal of access to this industry. The ASSE strongly
urges this committee to avoid any proposal that would take
resources away from NIOSH or to spread out the responsibility
for advancing mining technology.
Another positive thing that we have talked about a bunch
today is that advancing technology. The effectiveness of
utilizing advanced emergency preparedness was made absolutely
clear with the successful rescue of the 72 potash miners in
Canada this past January. Our task force will be evaluating
these and other technologies and we urge both NIOSH and MSHA to
explore the utility of other technologies developed by the
Department of Defense, NASA, and fire service industries.
I would also like to say a quick word about wholesale
regulations, which everybody here so far has touched on. There
is just a world of difference between different kinds of mines.
Our underground limestone mines bear almost no resemblance to
an underground coal mine, and as such, the different mining
industries have very different risk factors that all have to be
considered individually if you want to provide all miners with
the highest possible level of protection. Any one-size-fits-all
approach will require some mining segments to adopt controls
that are inappropriate for their applications and this would
likely divert resources away from individual safety concerns,
exposing some miners to a potentially greater risk.
In conclusion, from our view, MSHA doesn't lack power.
Compared to OSHA, MSHA is nearly a day-to-day presence in
mining. It could very well be what MSHA really needs is more
flexibility to focus resources on some actors instead of on
every operation to the extent that it does now. A bigger bang
in enforcement may be needed. More resources may be needed, but
so is a more effective use of the resources Congress has
already given incentives for small mine operators and so are
more cooperative efforts between MSHA, NIOSH, industry, labor,
and organizations like the ASSE.
I can tell you that testifying here is a very intimidating
venue for me. I do most of my talking in maintenance shops, and
this is a big change, but what you are doing here is very
important to me and to the guys that I work with back home. So
I wanted to take this opportunity to come down and contribute
to these hearings in any way that I can.
We are all dedicated to ensuring that every miner can go
home safely at the end of the shift. Your attention and your
support in this effort is very much appreciated by our industry
and by the safety professionals I represent here today. I can
offer you the expertise and experience of ASSE members in
whatever way this committee needs, and I appreciate you
including us here and I am happy to answer anything that you
have.
The Chairman. Thank you very much.
[The prepared statement of Mr. Neason follows:]
Prepared Statement of Mike Neason
Chairman Enzi and members of the committee, my name is Mike Neason,
and I am a fifth generation miner and a Certified Mine Safety
Professional. I manage safety and health for the mining operations of
Hanson Aggregates in Kentucky and surrounding States--both surface and
underground mining. I come before you today in my role as Administrator
of the Mining Practice Specialty of the American Society of Safety
Engineers (ASSE). ASSE represents more than 30,000 safety, health and
environmental (SH+E) professionals dedicated to seeing that every
worker has the best possible opportunity to go home healthy and safe
from their jobs each day. The society is the largest professional
safety organization and, founded in 1911, has been in existence the
longest.
ASSE's Mining Practice Specialty--one of 13 ASSE practice
specialties covering the spectrum of safety and health professional
interests--currently has more than 350 members. My colleague members
are men and women on the front lines of managing mine safety and health
in coal and metal/nonmetal mines, surface and underground, or providing
training, auditing and consultation services to the mining industry.
We commend the committee for looking critically at mine safety and
health issues today, both in terms of what can be done to prevent
another disaster such as the Sago mine catastrophe 2 months ago and
also to discern what can be done to improve the efficiency and
effectiveness of the Mine Safety and Health Administration (MSHA). ASSE
shares your concern. We have established a task force to review mining
emergency preparedness and communications in response to the recent
tragedies. Through ASSE's alliance with MSHA as well as our partnership
with the National Institute of Occupational Safety and Health (NIOSH),
we intend to help encourage an effective, proactive Federal response to
the concern many share over this Nation's commitment to mine safety and
health.
For today's purposes, ASSE reviewed the two pending Mine Act reform
measures, S. 2231, introduced by Senator Robert Byrd on February 1,
2006, and S. 2308, introduced by Senator Arlen Specter on February 16,
2006. Our comments here are initial reactions largely to the ideas
contained in these bills. Following the work of ASSE's task force
examining these same issues, ASSE will be able to provide the committee
with a more elaborate response, which we look forward to doing.
As a preliminary matter, it is important to recognize that, while
the loss of life in the Sago disaster was unacceptable to mine safety
and health professionals dedicated to doing everything we can to make
mines safe and healthy places to work, it is far from indicative of the
overall state of mine safety and health in the United States. To the
contrary, mine safety has drastically improved over recent decades, and
last year marked the lowest number of fatalities in U.S. history,
capping a general trend of declining fatalities, injuries and
illnesses. The successes should not be overlooked based on this
failure.
These strides were achieved, first, through tough and effective
enforcement of this Nation's mining laws. It should not be overlooked,
however, the efforts of Government, State and private sector
initiatives, often working in cooperation, also played a necessary
role. Because of the commitment from each of these sectors, technology
is getting better and better at engineering hazards out of mining and
removing miners from exposure to hazards. We are now seeing greater
computerization of mining methods having a substantial impact on our
ability to manage the safety and health risks within mines, with a
substantial promise that even better protections can be achieved.
duplicating responsibility for technology advancement
Many of the technological advances we already have in place were
developed through the efforts of dedicated researchers at the National
Institute for Occupational Safety and Health (NIOSH), which houses the
former Bureau of Mines. As we indicated in a recent letter to you and
Senator Kennedy, ASSE was extremely disappointed that a NIOSH
representative was not permitted by his Agency--the Department of
Health and Human Services--to participate in last month's roundtable on
mine safety technology. NIOSH's Mine Program is already positioned to
conduct effective intramural research, and, by expanding its already
proactive outreach to academia and private sector resources, to support
extramural research and develop pilot programs that can test the
viability of new mine safety technology in real-world situations.
With all due respect to Senator Byrd and his fully understandable
effort to examine new approaches for protecting miners--especially
since the unacceptable price of Sago tragedy is being paid by citizens
of his own State--ASSE cannot support legislative proposals, as
included in S. 2231, that would create an Office of Technology within
MSHA or in any other way diffuse this Nation's already limited mining
safety and health research. Any duplication of NIOSH's technology
transfer and research infrastructure would only spread resources thin
and most likely add a needless layer of bureaucracy that would delay
the development and implementation of new measures to protect miners.
Significantly, Congress originally tasked NIOSH with performing the
research to inform MSHA regulatory decisions in the 1977 Mine Act, in
which section 501 directs NIOSH to ``conduct such studies, research,
experiments, and demonstrations'' necessary, among other things to
improve working conditions and practices in coal or other mines . . .
to prevent accidents and occupational diseases originating in the coal
or other mining industry . . . to develop new or improved methods of
recovering persons in coal or other mines after an accident . . . and
to develop new or improved means and methods of communication from the
surface to the underground area of a coal or other mine.
The same legislation created MSHA, and the rationale for assigning
these responsibilities to NIOSH rather than MSHA was to keep research
independent and distinct from regulatory and enforcement influences.
The reason for keeping these functions separate still exists. ASSE
could not support creation of a duplicative effort within MSHA. MSHA
should have every resource necessary to focus on enforcement and
reaching out, not only to NIOSH, but the private sector as well to help
ensure that its methods and the expertise of its staff keeps current
with technological advances and incorporates ongoing change into its
culture. A new commitment to outreach, not a new department, is not
needed for that to occur.
If any change is needed, it is the current administration's
commitment to NIOSH. For Fiscal Year 2007, $5 million has been proposed
to be taken from NIOSH, this after many of its essential capabilities
were taken away in the name of Centers for Disease Control and
Prevention reorganization. We urge the Senate to reject this reduction
in commitment and increase NIOSH's resources so that NIOSH can better
fulfill its mandate to conduct mine safety and health research, develop
technology and provide training support materials.
mine safety technology
With respect to mine safety technology, the Sago disaster has
pointed out that gaps exist in protections for underground miners--both
coal and metal/nonmetal. Although many mines, such as the ones that I
oversee, go beyond compliance with MSHA's mandatory standards, others
unfortunately adhere to the bare minimum standards, with the result
that lives may be lost due to inadequate respiratory protection and
technologically obsolete communication systems.
As indicated at the February 15 Subcommittee on Employment and
Workplace Safety hearing, the market makes readily available products
that function in the same manner as the 1 hour Self-Contained Self-
Rescuers (SCSRs) but provide expanded protection from toxic gases that
can be created in mine fires or present in gassy mines even without an
accident. Promising technologies also exist for locating or
communicating with miners underground, such as the text messaging
technology currently being tested in approximately 140 mines throughout
the world. We agree that redundant communications systems that can
demonstrate effectiveness make a great deal of sense.
However, when considering what is and may not be feasible, focus
must be placed on post-incident functionality when electrical systems
may not be working. We urge both NIOSH and MSHA to investigate this
issue thoroughly and to explore the utility of technologies developed
by the U.S. Department of Defense, the National Aeronautics and Space
Agency, and the fire service industries post-911 for communication with
firefighters in emergencies. Although we understand that there may be
real promise in current communication advances, the transfer of such
technology to the underground mining industry is very much in question.
Neither Congress nor MSHA should rush to force solutions by assuming
the viability of these products before in-mine tests and research can
be conducted and such products become commercially available. At this
point in time, there simply is no one-size-fits-all solution to
underground mine communication, respiratory protection, or mine rescue,
as much as we all would wish it.
Although, as Senator Specter suggests, some mines might easily
adopt oxygen stations that provide a 4-day supply of clean air for all
mines in each working area of a mine, this might not be readily
accomplished in some smaller mines such as those in the anthracite
sector, or those with low passageways. There may, in the alternative,
be other ways of achieving the goal more feasibly in such mines. Until
the information is available, such regulations should not be
congressionally mandated. While the Mine Act has historically been
considered a ``technology forcing'' statute, there are realistic limits
as to what can be achieved. To be truly effective, any action meant to
improve safety--whether mines or any workplace--through technology must
fully consider whether appropriate ``off the shelf'' technology is
readily available before mandates are put in place.
incentives for technology
Congress must also be aware that, in the metal/nonmetal sector,
approximately 98 percent of underground mines are classified as ``small
business entities'' under U.S. Small Business Administration criteria.
Many coal mines especially are small business enterprises with as few
as five employees.
ASSE hopes the committee will consider this reality and look for
creative solutions, such as establishing new tax incentives, giving
operators some credit against citation penalties to encourage them to
adopt new technology quickly, or making establishing small business
loans for the purchase of mine rescue, communications and personal
protective equipment. Such measures should help expedite the necessary
protection of miners without unnecessarily diminishing the economic
viability of these mining businesses, many of which are located in
economically deprived areas of our Nation.
effective penalties
Both legislative proposals offered by Senators Specter and Byrd
would increase significantly penalties for violations of MSHA
standards. ASSE fully supports strong enforcement and the role
meaningful penalties can play in focusing an employer's attention
toward safety and health of its workers.
From the popular reaction to the Sago tragedy, it is apparent that
many outside the mining industry may not be aware that MSHA already has
more enforcement power than any other Federal Agency, including:
mandatory quarterly inspections of all underground mines; warrantless
search authority and automatic right of entry under Section 103(a) of
the Mine Act; strict liability enforcement powers; mandatory civil
penalties for all citations; and civil penalties that have been
increased from $10,000 to $60,000 in the past decade. Under Section
110(c) of the Mine Act, individual agents of management can be
personally fined up to $60,000 for actions or omissions that constitute
aggravated conduct--a power lacking in the Occupational Safety and
Health Act covering every other industry. Moreover, the current Mine
Act has felony criminal enforcement provisions of up to 5 years of
incarceration, and, unlike OSHA, no injuries need occur for MSHA to
recommend criminal prosecution by the U.S. Department of Justice.
However much we would like to think that increases in maximum
penalties may be appropriate, in the day-to-day reality of the mining
industry that I work in, the heightened penalty levels of $500,000 for
high negligence violations (compared with OSHA's $70,000 maximum), the
$10,000 minimum penalty for ``serious'' violations--especially when
compared with OSHA's maximum of $7,000 for similar violations--and the
other enhanced penalties and ``user fees'' suggested in S. 2308 and S.
2231 could very well put the average, well-meaning mine out of business
with a single penalty.
Moreover, as drafted, the legislation offering these increases is
often ambiguous. For example, ``habitual violators'' would be subject
to a minimum penalty of $20,000 for ``significant and substantial''
citations. However, the legislation does not define ``habitual'' and
includes no statute of limitations after which a repeated violation
would no longer trigger this mandatory minimum. Because MSHA does not
``group'' violations into a single citation as OSHA commonly does, it
is not unusual for a mine to have multiple guarding or equipment
violations in a single inspection. If each individual citation were
assessed at $20,000 because these triggered the ``habitual'' provision,
most mines could not withstand the penalty burden and continue to
operate. This area must be more critically explored before any new
categories of penalties are created.
unintended consequences
We also want to caution the committee that some provisions of the
proposed bills, though well intended, should be reconsidered following
this hearing to ensure that unintended consequences do not result in
everyone's understandable eagerness to prevent another Sago from
occurring.
For example, provisions that would deny the Federal Mine Safety and
Health Review Commission (FMSHRC) authority to modify penalties, or
requiring abatement action on all citations within 24 hours--have
critical due process implications that cannot be overlooked by this
committee if it is to move forward an effective program of reform.
It also appears that, while the technology provisions of the
proposed legislation largely concentrate on underground coal mines, the
penalty provisions would cover all categories of mines, including
surface aggregate operations that do not involve the same level of
hazards as do underground operations. Such action appears unwarranted
at this time. In particular, section 7 of Sen. Byrd's bill incorporates
the definition of ``coal mine'' from the 1977 act, which expands
coverage to surface and underground metal/nonmetal mines and to all
independent contractors performing any work at any mine, surface or
underground. Congress' intent with respect to the proposed Senate
legislation must be more clearly articulated to prevent inadvertent
expansion of the provisions to those outside the underground coal
mining sector.
Other suggested provisions, such as a $100,000 minimum fine for
failure to notify MSHA of an accident within 15 minutes, are simply
unachievable and may result in unintended consequences in individual
situations. In many cases, especially in small mines with few workers,
those who would make the call to MSHA must also be involved in
immediate rescue activities longer than this time period would allow.
Current provisions State ``immediately,'' which the FMSHRC has
interpreted this to mean ``2 hours or less.'' Moreover, there are 11
categories of accidents where this 15-minute notification requirement
would apply, as set forth in 30 CFR 50.2(h), so it could very well not
be apparent within 15 minutes that an incident such as a mine fire or a
nonfatal injury falls into the immediately-reportable category.
Clearly, we all like the response to mine tragedies to be immediate,
but 15 minutes is probably less than can be mandated effectively,
especially given the enormity of fine for failure without regard to the
impact of the accident. We urge the committee to work with MSHA, NIOSH
and stakeholders to reexamine this provision in order to determine a
more meaningful way to ensure emergency response.
With regard to mine rescue teams, Sen. Byrd's legislation would
direct all coal mines to have rescue teams consisting of their own
employees. If this is to be achieved, the consequences of either closed
mines or a market for coal that bears this cost must be understood.
Many small mines have too few workers to field a team. This is why MSHA
has for many years permitted mines to join together to form area rescue
teams of highly trained personnel. This practice has been demonstrated
to work effectively over many years and can remain as an effective
option.
conclusion
ASSE commends the committee for its consideration of these various
issues as well as Senators Specter and Byrd for their efforts in
defining specific solutions to issues with which we all struggle. This
leadership is needed if we are to move forward and help prevent another
Sago tragedy. However, we urge the committee not simply to assume a
lack of MSHA enforcement powers or too weak penalties are the root
cause of the failures we have seen. Along with an examination of
penalties and more stringent requirements, the committee must consider
other factors that may not be readily apparent.
It could be that the most effective solution is that MSHA make
better, smarter use of its current powers and target enforcement
resources more directly at the proven ``bad actors'' rather than being
required to inspect all mines in exactly the same way, regardless of
their compliance history or safety and health performance. It may be
appropriate, if the Mine Act is reopened, to provide the Agency with
more flexibility in terms of these mandatory inspections so it can
deploy its inspectors where they are most needed. More effective and
not merely more severe enforcement may very well be the answer we all
seek. Again, we urge the committee to work with MSHA, NIOSH and
stakeholders, both within industry and organizations like ASSE to help
make these determinations.
ASSE thanks the committee for including us in your deliberations.
We stand prepared to provide further technical assistance through our
Mining Practice Specialty as the committee continues to explore these
critical mine safety and health issues. We also pledge our support in
working with MSHA and NIOSH as they look for new methodologies to
protect miners and to improve existing standards, programs and outreach
efforts.
The Chairman. Mr. Roberts.
Mr. Roberts. Thank you, Mr. Chairman for allowing me to
speak today and thank you for your interest in coal miners
health and safety. I have had an opportunity to be with you
several times, and I thank you for this hearing; and to my two
Senators from West Virginia, I want to thank them for the job
that they are not only doing today, but they have done their
entire careers, standing up and fighting for coal miners'
health safety. We don't have two better friends in the world
than the two of you, and thank you.
I come today, and it has been mentioned that we have coal
miners throughout the United States of America with us, which
we bring here to this hearing. Not only do we have coal miners
from across the United States here, we have also brought with
us members of the mine rescue teams who risked their own
personal safety to go in a coal mine in Sago and Alma both to
try to rescue people they did not know. These mines were both
nonunion, but that makes absolutely no difference to the United
Mine Workers or to the rescue team members, and this country
should, indeed, be very proud of these individuals, as we are.
We also come today, Mr. Chairman, with the families from
Sago and Alma and Jim Walter No. 5. We are here speaking with
one clear and distinct voice. There is no division between the
families at Sago, the families at Alma, the families at Jim
Walter No. 5, the United Mine Workers, or the mine rescue
teams. What I say, we believe everyone concurs with.
We had a meeting this morning. It was interesting to see
that the fact that the mine rescue team members that tried to
save these loved ones for the first time met these families and
had a conversation. That is something to behold; but we must
say, Mr. Chairman, unlike some others who have testified, there
is a feeling amongst all of us that there has been a failure in
our Government to protect the coal miners in the United States
of America, and that case can be made by the following: Why
isn't it a fact that every coal mine in the United States of
America has additional supplies of oxygen available to them?
Senator Byrd. Would you say that again, Mr. Roberts?
Mr. Roberts. Why isn't it a fact, why isn't it a law, that
every coal mine in the United States has oxygen today as we
come together in this meeting to talk about this? How can
anyone with a clear conscious even debate that subject matter,
and the truth is that MSHA has the power, has the authority,
and has had that for many years to require that, but that has
not happened. Thirty-seven years ago, it was discussed about
putting safety chambers in the coal mines. Thirty-seven years
ago, Congress suggested MSHA take a look at that. That is as
long as Moses was on the desert if we go through 3 more years,
and there has been absolutely no action taken with that.
We need two-way communications in these coal mines. It
should be noted for the record, Mr. Chairman, MSHA has already
approved two different devices to be carried by coal miners and
we don't need to do any additional study and research. Those
have been approved by MSHA. The only thing that coal miners in
this country have between them and the outside is this: a wire
that gets burnt into, blown into, or broken into in the event
of a fall.
Mr. Chairman, the law is very clear. Congress wrote a law
in 1969 that says you cannot ventilate the face with belt air,
but the Agency charged with protecting coal miners wrote a rule
and said that was okay, that is okay to go ahead and do that,
contrary, Mr. Chairman, to what Congress said. I ask as we look
at MSHA today how can MSHA write a rule contrary to the written
law that Congress passed, and I submit to you a bold statement
here today, Mr. Chairman. The Alma miners would be alive today
if that law had been enforced, because what happened there is
the belt caught on fire, and remember there was a rule pending
for nonflammable belt rubber that was done away with, and the
law says you cannot pass air over belt rubber and send it to
the face.
The widow of Mr. Bragg is with us today, and she asks
Congress today, she asks the Government today, tell us why that
is. The mine rescue teams call out for you today to tell us why
we do not have more mine rescue teams. What is going to happen
here, Mr. Chairman, before long, we are going to lose all these
mine rescue teams underground because there is not enough of
them, and we have been aware of this. We have known this. It
has been public knowledge since 1995, and, Mr. Chairman, we
need to act.
In closing and in my opening statement, we represent a
number of these families at Sago, and one of the families we
represent is Mr. Hamner, and I would like to for the sake of
all of us understanding the severity of what we are talking
about here, is just read the note that he left for all of us.
He wrote it to his wife. He wrote it to his daughter, and I
heard him read this, and I must say, Mr. Chairman, it is the
most moving thing I have ever heard. And by the way, this was
written 8 hours and 40 minutes after the explosion. These
miners were all alive, and I want you to think about this. They
were moving around, trying to figure out how do we get out of
here, what do we do, but they had not enough oxygen. They
didn't have two-way communications to know what to do.
Mr. Hamner says: ``Hi, Deb and Sara.'' Deb is his wife.
Sara is his daughter. ``I am still okay. It is 2:40 p.m. I
don't know what is going on between here and the outside. We
don't hear any attempts at drilling or rescue. The section is
full of smoke and fumes. So we can't escape. We are all alive
at this time. I just want you and Sara to know I love you and
always have. Be strong, and I hope no one else has to show you
this note. I'm in no pain, but don't know how long the air will
last. Tell everyone I'm thinking of them, especially Billy,
Marian, Will, Bill, and Peg. I love you all. Junior Hamner.''
Thank you, Mr. Chairman.
The Chairman. Thank you.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Cecil E. Roberts
Thank you for allowing me this opportunity to appear before your
committee. As president of the United Mine Workers of America
(``UMWA''), I represent the union that, for 116 years, has been an
unwavering advocate for miners' health and safety.
Miners' health and safety has been in the headlines for much of
2006, but we all know that is because far too many coal miners have
perished. Nearly as many miners died in the first 6 weeks of 2006 as
perished in all of 2005. In the 12 month period from February 16, 2005
to February 17, 2006, 43 coal miners died in coal mining accidents.
With me today are people the UMWA invited to attend this hearing:
active coal miners from the coal-mining States of Alabama, West
Virginia, Kentucky, Pennsylvania, Ohio, Illinois, and Virginia, as well
as UMWA members who belong to the mine rescue teams that participated
in the rescue efforts at the Sago and Alma mines. They join me in
urging Congress to ensure that MSHA aggressively protects miners'
health and safety, so that they can do their jobs safely and come home
to their families each and every day. I am also accompanied by widows,
a fiance, brothers and sisters, and children of brave miners killed in
recent mining tragedies in West Virginia and Alabama. They want to
ensure that their loved ones did not die in vain, so the sadness and
loss they are experiencing will not confront other mining families.
We are here today to discuss and review the performance of the Mine
Safety and Health Administration (``MSHA''). First let me say that MSHA
is made up of many dedicated civil servants: health and safety
professionals whose efforts we deeply appreciate. However, MSHA's top
policymakers have not been doing their job protecting and enhancing
miners' health and safety. This may be because so many of them were
mine management executives before coming to MSHA; at MSHA they spend
too much time trying to appease their friends, and too little time
looking out for miners' interests.
Specifically, MSHA has failed in heeding Congress' express purpose
when it enacted the Mine Act and explicitly directed the Secretary of
Labor ``to develop and promulgate improved mandatory health or safety
standards to protect the health and safety of the Nation's coal or
other miners.'' 30 U.S.C. 801(g)(1). For those of us dealing with
miners' health and safety on a daily basis, it is apparent that MSHA
has neglected this essential purpose of Congress. The entire country
has now witnessed the terrible price so many families have paid for
MSHA's inaction and misdirected efforts. It is MSHA's inaction and
chronically misdirected efforts that are the focus of my remarks today.
It is also important for you to know that coal mining is at record
levels in terms of production, with far fewer miners needed to extract
the mineral. However, as new mining methods that enhance productivity
were being developed, MSHA has not met its challenge: not only has MSHA
circumvented some of the most basic health and safety guidelines that
are spelled out in the Mine Act, but the Agency has not promulgated
rules to keep pace with record productivity and the new mining
techniques.
I will first review how current mine safety laws came into being;
and then describe a number of ways in which MSHA has failed to protect
miners' health and safety: it is not developing enough new mandatory
standards to protect miners' health and safety, and through ``policy''
it is allowing operators to pursue practices that compromise--rather
than enhance--miners' health and safety. We hope that in exercising
your oversight responsibilities, this committee can help redirect MSHA
so it will engage in the principal activities Congress mandated when it
crafted the Mine Act.
dangers of mining
It was shortly after 78 deaths at Farmington, West Virginia in 1968
that Congress enacted the Coal Act in 1969; the legislation was then
expanded to other mining industries and renamed the Mine Act in 1977.
From its inception, Congress appreciated that the Enforcement Agency
must be independent of the operators it regulates: at first Congress
assigned the task to the Bureau of Mines, and then it was moved to a
newly-created Mine Safety and Health Administration within the
Department of Labor.
Since the Coal Act was passed, fatalities in coal mining have
decreased dramatically: while over 300 miners died in 1968, the year
before the Coal Act was enacted, fewer than 100 miners have perished in
any single year over the last 20 years. Yet, mining still remains the
second-most dangerous industry in this country.
Aside from the very dramatic accidents that captured the Nation's
attention in January 2006, thousands of miners remain disabled and
dying from black lung disease, while many other miners die in mining
accidents every year. Most typical accidents claim the lives of one or
two miners at a time, from roof falls, equipment failures, electrical
problems, and other accidents. In just the first 6 weeks of 2006, in
addition to the 12 miners who perished at the Sago mine and the two who
died in the January 19 mine fire at Massey's Aracoma Alma No. 1 mine,
seven other coal miners also died, one at a time.
There are also countless near-misses that occur on a regular basis.
Since August 2000, MSHA records show there were well over 400 mine
fires, ignitions, explosions and inundations that far too-easily could
have developed into significant disasters and fatalities. Many other
incidents likely went unreported.
mine act purposes
In passing the Mine Act, Congress set forth four purposes. The
first was to establish a long list of very specific ``interim mandatory
health and safety standards,'' as well as to direct the Secretary of
Labor ``to develop and promulgate improved mandatory health or safety
standards to protect the health and safety of miners.'' The other
purposes Congress established were (a) for the Secretary to require
operators to comply with such standards; (b) for MSHA to cooperate with
and assist States with their own mine health and safety programs; and
(c) to improve and expand ``research and development and programs aimed
at preventing coal or other mine accidents and occupationally caused
diseases in the industry.'' 30 U.S.C. 801(g). As we will show, MSHA
has neglected the priorities Congress established; this neglect has
been chronic.
where mine act protections are found and evaded
Mine safety protections may be found in the act itself, in
regulations MSHA has promulgated, through modifications MSHA may permit
on a case-by-case basis, and through MSHA's policies. The issue of
``belt air'' \1\ provides an example of both how health and safety
protections come into play, and how MSHA has allowed these protections
to be evaded.
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\1\ To ventilate sections of the mine where miners work requires
the operator to course fresh air into the mine. Under the Mine Act,
Congress specified that intake and return airways were to be separated
from the belts that transport coal out of a mine. 30 U.S.C. 863(y).
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``Belt air'' refers to air that is directed into the underground
coal mine, and which passes through the same tunnels in which conveyor
belts transport coal out of the mine. The tunnels, known as
``entries,'' are costly and time consuming to develop, so if an
operator is allowed to use belt air it can avoid building a separate
entry for the fresh air. When belt air is used to ventilate the active
working sections, large exhaust fans pull fresh air from outside the
mine into and along the conveyor belt, and the air passes over and
around the freshly-cut coal on the belt before the air can ventilate
the inner areas of the mine where miners work. However, the belt entry
has historically been the dirtiest and most fire-prone entry in the
mine, and using belt air introduces a number of safety and health
concerns, including (a) exposing miners to excessive coal dust on an
on-going basis, and (b) enhancing hazards when fire breaks out along
the conveyor belts, including carrying flames and deadly gases directly
to the miners' work areas and to vital evacuation routes--dangers
exacerbated by both the high velocity of the air fanned through the
underground tunnels, and by the immediate availability of a fuel
source, fresh coal.
First, there is the Mine Act itself. In writing the Coal Act and
the Mine Act, Congress incorporated a long list of very specific
mandatory standards. For example, at 30 U.S.C. 863(y), Congress
mandated that, for any mines developed after December 31, 1969, air
that passes through belt entries ``shall not be used to ventilate
active working places.''
Congress also gave MSHA the authority to ``develop, promulgate and
revise as may be appropriate, improved mandatory health or safety
standards for the protection of life and prevention of injuries in coal
or other mines,'' consistent with rulemaking procedures set forth in
the Administrative Procedures Act. 30 U.S.C. 811(a). And although the
UMWA vigorously opposed the rule, it was pursuant to its authority to
promulgate ``improved health or safety standards'' that MSHA issued a
new belt air rule in April, 2004. 69 Fed. Reg. 17480. MSHA's belt air
rule superceded the prohibition Congress had written into law.
Petitions for Modification constitute a third avenue for
establishing the health and safety standards applicable at a mine. In
particular, in Section 101(c) of the Mine Act, Congress authorized the
Secretary to ``modify the application of and mandatory safety
standard'' if she would determine ``that an alternative method of
achieving the same result . . . exists which will at all times
guarantee no less than the same measure of protection afforded the
miners . . . or that the application of such standard . . . will result
in a diminution of safety to the miners . . .'' 30 U.S.C. 811(c).
Typically, petitions for modification are filed by operators when
they wish to avoid some mandatory standard safety. To obtain an
exemption, the operator submits its proposed alternative, with an
explanation about how its proposal is intended to provide miners' with
comparable protection.
Over a period of many years, MSHA allowed a large number of
operators to use belt air despite the Mine Act prohibition against it
by use of the petitions for modifications procedure. We believe MSHA
approved petitions for modification to allow belt air (albeit
conditioned on the installation of equipment intended to monitor the
mine atmosphere), because doing so enabled operators to develop fewer
entries and thereby increase their production. In fact, when MSHA
proposed its belt air rule in 2003, the Agency noted that it had
already approved about 90 petitions allowing operators the right to use
belt air! 68 Fed. Reg. 3937. For those operations that had such
modifications in effect, MSHA had already effectively superceded the
prohibition of belt air that Congress had written; when MSHA's final
belt air rule took effect, it eliminated that protection for all other
mines, too.
The final basis for determining what standards apply comes from
MSHA ``policies.'' MSHA maintains a Program Policy Manual in which the
Agency explains how it interprets and applies various aspects of the
Mine Act and regulations. Using the belt air example, before the belt
air rule was finalized in 2004, the Policy Manual explained what
exceptions a district manager could approve (for mines opened on or
before March 30, 1970), and directed operators of later-opened mines to
submit a request under the petition for modification procedures.
the problem of too few rules, and the wrong ones
Since the Mine Act was enacted, MSHA has promulgated relatively few
rules. Compounding the problem of little rulemaking is that some--like
the belt airrule that was finalized in April, 2004--not only removed
specific protections Congress had required, but they have been directed
at increasing productivity instead of improving miners' health and
safety. Yet, Congress never authorized MSHA to spend taxpayer money to
improve productivity. In promulgating regulations, MSHA is only
supposed to issue ``improved . . . standards to protect the health and
safety of miners.'' When it proposed the belt air rule in January 2003,
MSHA did not even claim it would improve miners' safety. On that issue
MSHA simply stated that the new rule would ``maintain the level of
safety in underground mines while implementing advances in mining
technology.'' Considering how much time and effort is consumed in most
rulemaking efforts, \2\ to promulgate a rule that does not advance
miners' health and safety constitutes misdirected, wasted, energy.
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\2\ When MSHA proposed its ventilation rule in January, 1988, the
Agency included a provision that would have allowed the use of belt air
so long as carbon monoxide sensors would be installed in the belt
entry. Because this particular aspect of MSHA's proposed ventilation
rule was met with ``widely divergent views,'' 68 Fed. reg. 3937, MSHA
withdrew the belt air language from the ventilation rule that it
finalized in 1992. ID. Nevertheless, MSHA decided to continue studying
belt air as an independent matter to determine ``the conditions under
which air in the belt entry could be safely used in the face areas of
underground coal mines.'' Id. In pursuing this effort, MSHA did not
suggest that allowing belt air would improve miners' health and safety.
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There are too many compelling issues that remain unregulated, and
which jeopardize miners' safety every day, for MSHA to pursue rules
that do not materially contribute to miners' health and safety. As the
recent tragedies at the Sago and Alma No. 1 coal mines demonstrate,
there is a serious void in the regulatory framework for underground
miners confronting a mine emergency. While there is a lot yet to be
determined about these accidents, the note that Sago miner George
Junior Hamner wrote to his wife and daughter (copy attached) reveals
that most miners survived the initial explosion at the Sago Mine. It
also demonstrates that those miners had no information about where to
find fresh air or about how they might have been able to exit the mine.
In fact, miners survived for many hours, but in the end they had
inadequate access to oxygen to survive the toxic mine atmosphere.
Though Congress specifically suggested that the Secretary consider
promulgating a rule requiring rescue chambers for miners to find
shelter in an emergency, we are unaware of any substantial efforts MSHA
has made to pursue this option since the act was written. Nevertheless,
earlier this year just such a chamber was successfully used by, and
saved the lives of, miners at a potash mine in Western Canada when they
confronted a mine emergency. If they could rely on a rescue chamber to
survive, why weren't the miners at Sago and Alma afforded that same
opportunity?
At the Alma mine, miners were killed after a mine fire erupted on
the belt that was used to ventilate the mine. If belt air had not been
permitted, and if the belts were not flammable, or if the miners had
more oxygen, or if they had lifelines to guide them out of the smoke-
filled mine, perhaps we would have had a different outcome. Delorice
Bragg, the widow of Don Bragg who was killed at the Alma mine fire in
January, is here with me today to ask why unsafe practices were allowed
to continue, and why well-known emergency safeguards were not afforded
to her husband.
These deficiencies in miners' health and safety are all ones MSHA
has known about for many, many years. Most of them have been known
since the Coal Act was passed in 1968, over 37 years ago. In fact, in
1968 rescuers could not locate all the miners killed in the Farmington
disaster and 19 remain entombed in that mine. After the Pyro mine
exploded, killing 10 miners in 1989, many of these same needs were
identified. The problems of no communications, the inability to locate
underground miners, and insufficient self-rescuers were all noted as
problems that confronted miners, including the 13 who were killed at
the Jim Walters No. 5 mine on September 23, 2001. The need for these
improvements has been talked about after too many tragedies. Long ago,
it was time to stop talking and time to take action to implement
changes that would help miners survive emergencies. We do not have to
wait for 100 percent guarantees; we need to enhance a miner's chance of
escaping an emergency, or surviving if trapped.
It is interesting that those advocating the status quo will say
that some of the protections we seek, like supplemental oxygen, and
better communications, are not worth pursuing because they may be
damaged in the event of an explosion or other emergency. However, if
the miners survive that initial event, it is likely they will be able
to escape or survive if they are provided additional resources. At the
Sago Mine, miners survived for many hours and may well have been able
to escape if they had been directed out; or they might have survived if
they had supplemental oxygen stored nearby. At the Jim Walters mine,
those killed had inadequate information largely because the primary
method of communication was interrupted; if secondary communications
(i.e., supplemental wireless devices) had been available, it is
possible more would have survived.
Active miners and family members of those killed at the Jim Walters
mine testified about the need for better communications, the need to be
able to locate miners underground, and the need for more oxygen
supplies stored underground at hearings MSHA conducted in February,
2003. Two of the miners who testified at MSHA's hearing in Lexington KY
are with me today, James Blankenship and Dwight Cagle, both from
Alabama. Transcripts from those hearings are available through MSHA's
web page. What has resulted from those suggestions of 3 years ago?
Nothing. Sadly, it came as no surprise to those of us interested in
miners' health and safety when these very same problems and
deficiencies developed at the Sago and Alma No. 1 mines; MSHA had not
advanced any such protections in the intervening years.
In fact, MSHA has been going backwards in providing some of these
protections. Assistant Secretary for MSHA David Lauriski scrapped 17
proposed rules on topics MSHA had identified as needing attention. A
list of those withdrawn rules is attached. Among them were some of the
protections that might have helped the miners who perished at Sago and
Alma. Offering no explanation for its decision, on September 24, 2001
MSHA withdrew a rule that would have imposed new procedures and
requirements for flame-resistant conveyor belts, even though the rule
was then close to completion. On that same day, citing ``resource
constraints and changing safety and health regulatory priorities,''
MSHA withdrew its ``pre-rule'' concerning self-rescuers that had been
among the Agency's rulemaking agenda since 1999.\3\ These rules were
actually withdrawn the first day after the Jim Walters' No. 5 accident
killed 13 miners.
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\3\ Througout the industry there have been problems with miners not
being able to properly don the self-rescuer units in emergency
situations. Moreover, without a rule addressing self-rescuers,
technological advances of these breathing devices has been stymied. In
the legislative history of the Mine Act, Congress indicated that mining
regulations should be technology-driving, to maximize miners'
protections. We had hoped that with the promulgation of a new rule
addressing self-rescuers, the existing problems would be addressed, and
technological advances encouraged. The UMWA is convinced that such a
rule would have been the catalyst for a new generation of self-rescuer
devices. While operators are willing to invest in new technology when
it increases production, it appears that they are not so willing to
invest in miners' health and safety.
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We note that reports of the recent coal mine disaster in Mexico
indicated that miners had access to at least 6 hours of oxygen, and
there were additional units available underground. If so, their oxygen
resources far exceeded what must be provided to miners in this country.
One year later, MSHA withdrew a pre-rule that would have addressed
problems related to diminishing mine rescue capabilities.\4\ In the
room with me this morning are a number of brave UMWA members who
participated in the Sago and Alma rescue efforts. I want to publically
thank them for their dedication and unselfishness in answering such
emergency calls. Not once did these UMWA members hesitate when they
were called in January, even though the miners at risk at Sago and Alma
were not at union operations. These UMWA rescue team members are here
today to let you know that they are concerned about the state of the
mine rescue system, about the need for rules to compel the expansion of
mine rescue capabilities, and the importance of having teams at each
and every mine regardless of the mine size or location.
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\4\ It took 3 to 5 hours for the first rescue teams to arrive at
Sago. That mine does not have its own rescue teams, even though MSHA
regulations require mines to ``establish at least two mine rescue teams
which are available at all times when miners are underground, or . . .
make an arrangement for mine rescue services which assures that at
least two mine rescue teams are available at all times when miners are
underground.'' 30 C.F.R. 49.2. The regulation includes an exception
for small and remote mines, but does not apply to the Sago mine. That
same regulation specifies that teams ``shall be considered available
where teams are capable of presenting themselves at the mine sites
within a reasonable time after notification.'' Given that it took 3 to
5 hours for the first mine rescue teams to arrive at Sago, it is
apparent that the current system is not acceptable.
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The UMWA submits that every underground coal mine should have mine
rescue capabilities onsite. These team members should be employees at
the facility who would be acutely familiar with the mine. These
individuals would not only be best able to carry out many of the duties
required in these situations, but would also be uniquely qualified to
brief additional off-site teams that may be necessary to complete the
rescue. For even small and remote mines, MSHA should require mine
rescue teams to be ready when disasters strike. No trapped miners
should ever again have to wait 3 to 5 hours for rescue efforts to
begin.
Instead of promulgating a rule that would improve rescue teams'
availability and capabilities, MSHA eliminated further work on rescue
teams regulations. Meanwhile, it permits operators to expand on the
ill-advised practice of contracting out such work. Withdrawing the
proposed rule effectively eliminated any meaningful improvement in
comprehensive mine rescue activity, but it also afforded some mine
operators the opportunity to disband teams so they could increase their
profits.
A number of other rules at various stages of rulemaking were also
withdrawn under the current administration. Some of the most compelling
concern air quality, miners' exposure to airborne contaminants, and
coal dust. The existing regulations utilize the same exposure limits
that were in place when the Mine Act was promulgated in 1977, and they
are widely-recognized (by MSHA and others) as being outdated and
offering inadequate protection to miners' health. Recognizing that the
permissible exposure limits (``PEL''s) allowed under existing
regulations expose miners to unsafe levels of contaminants in the
underground environment, MSHA had planned to update them. However, it
withdrew the proposed rule in September 2002.
Another proposed rule would have enacted recommendations emanating
from the Secretary's 1996 Advisory Committee on the Elimination of
Pneumoconiosis Among Coal Workers. This rule would have decreased the
amount of respirable coal dust, in particular, to which coal miners
could be exposed. Reducing the allowable respirable dust exposures
would both diminish miners' likelihood of contracting black lung
disease and it would also reduce the amount of explosive coal dust in
the mine environment. This matter was in the pre-rule stage when it was
withdrawn in September 2004. Unfortunately, the only efforts regarding
coal dust that MSHA made under former Assistant Secretary Lauriski was
a proposal that would have allowed respirable dust levels to increase
by four fold. That proposal was met by a public outcry, including
opposition from the halls of Congress, and Mr. Lauriski ultimately
withdrew it.
In September 2001, MSHA also withdrew a proposed rule that would
have required the monitoring of respirable dust at all times. MSHA also
stopped any plans to increase the required training and retraining of
miners, even though the Agency identified this need back in 1998, and
the UMWA has consistently asked for such increases out of a concern
that current requirements are inadequate.
MSHA dropped rulemaking efforts the Agency began in January 2001 to
establish uniform procedures for its accident investigations; the
failure to have such procedures has frustrated the designated miners'
representatives from participating in the investigatory interviews that
took place in connection with the Sago investigation. As it stands,
MSHA itself, though it could be implicated in the accident, conducts
the entire investigation. MSHA investigations also permit the operator
to remain, even though the operator may be culpable for the accident.
While the UMWA would normally be present for accident
investigations that concern a unionized operation, at Sago which is
nonunion, the Union has been excluded from interviews, even though a
number of active miners as well as several family members of those
killed have asked the UMWA to serve as their representative. A number
of family members of miners killed in the Sago Mine disaster are with
me here today: Amber Helms and Virginia Moore, the daughter and fiance
of Terry Helms, Peggy Joyce Cohen, the daughter of Fred Ware, Jr.,
Cheryl Ann Meredith, the daughter of Jim Bennett, and John Groves, the
brother of Jerry Groves. Some of these individuals specifically asked
MSHA to give them access to the interviews, whether directly or through
the UMWA as their designated representative. Though Richard Gates (the
chief MSHA investigator for the Sago accident) promised them a response
to their request before the interviews would begin again on February
14, he did not respond to the families by then, and there has been no
subsequent change to the interviews' procedure; those interviews have
been completed, or nearly so.
We believe MSHA withdrew these and other proposed rulemaking
efforts because implementing them would have cost operators substantial
capital-resources dedicated to miners' health and safety, instead of
production.
important, albeit belated, msha activity
It is not for lack of knowledge that MSHA has failed to enact these
needed protections. MSHA knows how to do better. The Agency itself has
performed countless internal reviews and self-analyses; the Federal
Government's watchdog Agency, the GAO, has given it direction, and the
UMWA has communicated both formally and informally about how MSHA can
and must do better.
Indeed, on the heels of so many coal mining disasters commanding
considerable national attention, MSHA recently began to initiate some
potentially useful rulemaking that could improve a trapped miner's
ability to survive a mine accident. Look to its press releases and you
can see that by various notices the Agency issued in February, 2006,
MSHA has indicated (1) it will aggressively assess and test
communication and locating devices for underground mines, (2) it will
pursue a new mine evacuation rule and will do so in an expedited,
emergency fashion, (3) it will cosponsor an international mine safety
symposium that will focus on new technologies and practices, and (4) it
participated in a symposium on wireless technology. We support such
efforts. We are cautiously optimistic that MSHA will quickly promulgate
and implement an emergency rule that would require additional caches of
self-rescuers and training on how miners transfer from one such unit to
another, lifelines that could help miners evacuate, and clarification
that an operator would need to notify MSHA of an emergency within 15
minutes. We are also pleased to see that MSHA is now studying various
emergency communications and tracking systems. It has invited
manufacturers to submit information about devices that could function
in gassy areas of underground mines.
But we must ask, why did MSHA wait this long to pursue these
issues? Why wasn't it looking for these solutions 10 and 20 (or more)
years ago? Why was it expending precious resources hunting for ways
that allow operators to use hazardous belt air to ventilate miners'
working sections instead of protecting trapped miners? For an Agency
with such a clear mandate as that which Congress wrote into the Mine
Act--to protect and improve miners' health and safety, we ask you to
consider how MSHA could have gotten so terribly misdirected.
need for more aggressive and consistent enforcement
MSHA has been neither aggressive nor consistent in enforcing the
regulations that already exist. The Agency spends too much effort at
``compliance assistance,'' and too little on enforcement.
After the Pyro disaster in 1989, MSHA performed an internal review,
and identified a host of Agency performance problems and deficiencies.
More recently, the Agency performed an Internal Review of MSHA's
actions during the period before the Jim Walters' mine explosions to
``improve our inspection process to better protect our Nation's
miners.'' The review again compared what MSHA actually did with what
the Mine Act requires it to do. A number of problems were identified as
deficiencies ``at both the district and headquarters level,''
deficiencies ``relevant to inspection procedures, level of enforcement,
plan reviews, the Alternative Case Resolution Initiative and
accountability programs, supervision and management, and headquarters
oversight.'' The Government Accountability Office (``GAO'') also
reviewed MSHA's performance after the Jim Walters' accident and noted
in its report, issued in September 2003, that MSHA headquarters was not
performing adequately in several key areas. Specifically, the GAO found
MSHA failed to ensure violations cited to mine operators were corrected
in a timely fashion. In fact, GAO found that of all the citations
issued by the Agency, including those written as ``significant and
substantial,'' despite inspector-imposed deadlines by which problems
were to be abated, 48 percent of the time the Agency failed to follow-
up in a timely fashion to see if the operator fixed the hazards.
Unfortunately the Agency's top managers have done little to move
any of the necessary improvements from recommendation to reality. We
hope that by having Congress add its voice now, along with the public's
demand for its better performance on the heels of Sago, Alma, and the
other tragic accidents, MSHA will finally refocus its attention.
In addition to the subjects that are already underway for emergency
rulemaking (more self-rescuers and training on transferring units,
lifelines to help miners evacuate the mine, and the need to notify MSHA
of an emergency within 15 minutes), and subjects that MSHA is also
actively studying (emergency communications and tracking systems) all
of which are long overdue for regulation--we urge MSHA to promulgate
and implement rules that would materially contribute to miners' health
and safety. Without intending to be comprehensive, the issues that we
identify as constituting the top priorities for MSHA rulemaking
include: reducing miners' exposure to respirable (coal) dust, updating
permissible exposure limits for contaminants in the mine environment;
undoing the unwise belt air rule, and requiring nonflammable belts,
improved atmospheric monitoring systems, expanding the mine rescue team
requirements and support, improving requirements for firefighting and
evacuation plans, developing a nationwide emergency communications'
system for mines, increasing training and retraining for miners,
revising MSHA's approval and certification system for mining equipment,
requiring secondary telephone lines in a separate entry, providing
miners with a safer means of escape in the event of a mine fire,
explosion, or inundation, updating and increasing fines for Mine Act
violations, and developing uniform accident investigation procedures.
MSHA should also determine whether the seals it tolerates are adequate
(note that MSHA-approved seals failed at Alma although 30 U.S.C.
303(z) of the Mine Act requires explosion-proof seals, and 30 C.F.R.
75.334 and .335 provides that seals withstand 20 psi); the Agency also
should study emergency safety chambers, as suggested in the Mine Act,
at 30 U.S.C. 315.
MSHA needs a larger budget for coal enforcement. Aside from its
budget not keeping apace with inflation, instead of focusing on
enforcement in recent years MSHA has redirected some of its inspectors'
time toward ``compliance assistance.'' MSHA also needs to bolster its
expertise, and prepare for the transition as many of its inspectors
approach retirement.
MSHA also has been remiss in seeking and enforcing meaningful fines
and penalties for Mine Act violations. In February 2006 MSHA issued a
press release to announce that it will seek to ``modernize'' the fine
structure which has not been revisited in nearly 25 years, and ``needs
updating to strengthen incentives for compliance.'' The Agency also
needs to do a better job collecting the penalties it imposes. One
fundamental problem is that MSHA compromises penalties far too often;
whether at conferences held with the operator at MSHA's district
offices or through negotiated settlements, MSHA collects very little in
the way of the fines it assesses. This means that operators have little
incentive to pay. There has developed a culture whereby operators view
MSHA fines as little more than a nuisance, a minor cost of doing
business. MSHA can and must do better to ensure that its fines coerce
compliance with the Mine Act--that is what is most needed.
Just last month, in February, 2006, MSHA initiated two injunctive
actions against operators with large unpaid fines. This was the first
time the Agency attempted such remedies. While we support these
efforts, we also must ask, why has it taken this long for MSHA to put
teeth into the enforcement side?
conclusion
Coal remains a vital part of our Nation's economy and a primary
component of our energy needs. Coal mining is again growing. More and
more young people are entering the industry. It is still dangerous. But
we can do a lot more than we are doing today to make it safer. Miners
should not have to get sick, or to risk their lives just by going to
work.
I urge you to require MSHA to do in 2006 all that Congress demanded
in 1969 and again in 1977. Regulations that were in the pipeline in
2001 and 2002 should be reactivated and finalized in a timely fashion.
New regulations to protect miners--both while on the job and when
emergencies strike--must be promulgated. All such regulations must be
enforced regularly and aggressively. MSHA must make these much-needed,
and over-due improvements.
The status quo is inadequate. The Government failed the Sago and
Alma miners, and when it failed them it failed all miners. In enacting
the Mine Act, Congress plainly stated: ``Congress declares that (a) 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; everyone else
associated with the mining industry must re-establish miners' health
and safety as their top priority, too. Senseless deaths and injuries
must stop.
I thank you for your interest in miners' safety and would be happy
to answer your questions.
The Chairman. Mr. Peelish.
Mr. Peelish. Mr. Chairman and members of the committee, I
would like to thank you for the opportunity to be here today.
I was born in this industry in 1961 and was born in a small
town just north of Sophia, West Virginia named Beckley. My
father and my grandfathers were immigrant coal miners and my
family has many coal miners on both sides of it.
At the very outset, allow me to restate our shared support
for the fundamental tenet of mine safety and health
legislation, and that is our first priority and concern must be
the safety and health of the miner. We appear before you today
to pledge to work with Congress to ensure that out of the
recent tragedies will emerge a stronger resolve and greater
cooperation in pursuit of safer mines.
The mining industry has undergone a significant
transformation that continues at an astounding pace. Safety and
health programs have advanced and have become embedded in the
mining culture. The industry continues to adopt new
technologies that advance the complementary goals of safety and
productivity.
Since the first oil embargo in early 1970s, the coal
industry has answered the call to provide more coal to meet our
Nation's energy requirements while providing a safer working
environment for its workforce. Since 1970, coal production has
increased by 83 percent and coal mine fatalities have decreased
by 92 percent and today's reportable injury incident rate of
5.6 per 100 workers gives coal mining a lower rate of
occupational injuries than many other industries. No longer can
coal mining be stereotyped as the most hazardous job in
America.
We take pride in all of these accomplishment, yet more can,
must, and will be done.
Today, I would like to discuss with you a threefold
challenge: First, the principles we believe should guide our
actions and policymakers based on our analysis of the partial
information coming out of this year's tragic events; second,
the need to focus on accident prevention in a changed and
changing mining industry; and third, modernizing MSHA's
enforcement procedures to more accurately mirror actual
conditions in the mines rather than an inflexible adherence to
outdated procedures.
We have reviewed the publicly available information that
has emerged from the events in West Virginia. In addition to
the establishment of an independent commission of safety
experts, we have developed an offer for the committee's
consideration as it looks for ways to advance mine safety and
health the following principles: first, expediting development
and introduction of ground-penetrating communication and
tracking technology; second, improving emergency notification;
third, enhancing safety training and rescue capabilities;
fourth, providing a liability shield and indemnification for
mine rescue activities; fifth, ensuring that new requirements
are accompanied by workable transitional timeframes; sixth,
providing authority for mine operators to conduct mandatory
substance abuse testing to all personnel at the mine; and
finally, providing incentives to help companies invest in
equipment and training needed for enhanced mine safety and
rescue capabilities.
Beyond the specific guiding principles discussed above, we
direct your attention to overriding challenges. Today many coal
mines present challenging geological conditions. As mines
access deeper reserves, the technological limitations of
historic control methodologies are readily apparent, presenting
miners, mine operators, and Agency personnel with new and more
difficult engineering challenges. To address these challenges,
we have initiated several partnerships with the National
Institute of Occupational Safety and Health, NIOSH, to examine
new technologies to better protect miners' health. These
partnerships have brought together experts to work on practical
solutions to safety and health problems confronting the
industry.
I am pleased to report that the industry recently joined
with NIOSH and others to form a partnership on mine emergency
communications. The members of this committee and your
colleagues on the respective Appropriations Subcommittee are
very aware of the need to maintain a vibrant and well-funded
mining research program within NIOSH. Recent events underscore
this need. The Federal Government has an important role in
technology development in order to bring safer new devices to a
relatively small market for safety equipment. We urge your
support to strengthen this vital Government function.
In addition, certain structural changes in our regulatory
approach to mine safety are necessary. Key among them is the
need for MSHA to conduct more focused inspections and to
enhance the quality of inspections. Many of our members who
operate some of the safest mines in the country continue to
have inspectors on-site during each and every operating shift.
The misperception persists that the Mine Act-mandated four
inspections annually for every underground mine and two
inspections annually for every surface mine translates to only
four inspections annually. Nothing can be further from the
truth. MSHA statistics show that a large underground mine can
have more than 4,000 onsite inspection hours per year. This
means the presence of two to three inspectors each and every
day the mine operates.
Flexibility in inspection procedures is central to
achieving the resource allocation determinations that are vital
for improving the Agency safety and health programs and the
industry's safe and health performance.
Mr. Chairman, as we look to the future, we recognize that
our ability to further advance coal mine safe and health will
require an examination of the structural and technological
hurdles that must be overcome. Further improvements will
require us to identify potentially dangerous conditions before
they put miners' safety or health in jeopardy as well as the
appropriate methods to minimize the onset of dangerous
conditions and practices. We look forward to working with you
and your colleague as Congress considers legislation. Working
together, we will develop programs to train and educate a new
generation of miners so that they can have a safe and
productive career in a noble industry vital to this country's
energy markets and national interests.
Thank you.
The Chairman. Thank you.
[The prepared statement of Mr. Peelish follows:]
Prepared Statement of Michael Peelish
introduction
Mr. Chairman, members of the committee good morning, I am Michael
Peelish, senior vice president, Safety and Human Resources for
Foundation Coal Corporation and I am testifying on behalf of the
National Mining Association. Let me begin by thanking you for this
opportunity to have a conversation with you about miners' safety and
health.
Congress declared in the 1977 Mine Act that ``the first priority
and concern of all in the coal or other mining industry must be the
health and safety of its most precious resource--the miner.'' The
mining industry has tried to live these words through its deeds and has
taken on the challenges to protect its miners through both improved
technological systems and worker safety behavioral changes and has
successfully reduced the number of fatal injuries and the incidence
rate for injuries dramatically since that time. But we will never be
satisfied until every miner returns home safely at the end of each
shift.
Thus we should discuss our successes while recognizing there is
much more to be accomplished. I am convinced the mining industry has
not received the just credit for its safety success from the Congress,
the American people, or the agencies that are charged with the
responsibility of enforcing the Mine Act. As any good business should
do, we must assess the ``As-Is'' state of the industry, what is the
desired ``Future State'', and what is the process for obtaining the
Future State. The Future State of mining, as it should be for any
industry, is to seek Zero injuries and Zero incidences of health
related illnesses. Now, the question presented is how do we achieve
Zero?
industry safety performance
The ``As-Is'' state of mine safety shows dramatic improvement since
1970.
I know this committee has seen the MSHA published data which shows
the dramatic improvements made in safety. To summarize, from 1970 to
2005, fatal injuries have decreased by approximately 92 percent in the
coal industry and by approximately 75 percent in the metal/nonmetal
industry. Please listen to me when I say these are too many, but there
has been significant improvement. In 1978 the coal incidence rate for
all injuries was 10.05 and the metal/nonmetal incidence rate for all
injuries was 7.95. In 2004, the incidence rate reduced by over 50
percent to 5.0 for coal mining and 3.55 for metal/nonmetal mining. This
is also clearly a dramatic improvement, and an incidence rate far
superior to many other industries, but not at the level we in the
mining industry consider satisfactory.
These MSHA statistics show improvement while both coal and metal/
nonmetal industries have achieved record production. How has the mining
industry achieved this performance? I would submit these improvements
have been achieved through industry initiated mining techniques and
technologies and a change in culture whereby mine operators truly
believe that safe mines are more productive mines.
In the 1970s, roof and rib accidents were a common cause of serious
and fatal accidents in underground mining. Improvements in mining
techniques, such as longwall mining in underground coal mines and the
use of automated roof drills in hardrock mining have helped mine
operators reduce dramatically this most unforgiving type of accident.
In surface coal and metal/nonmetal mines, better design and layout of
haul roads and high wall management has achieved similar improvements
in mine safety. Mine operators and equipment manufacturers have
introduced other mining technologies such as remote controlled and
automated equipment, roof bolting support systems, rollover protected
operator cabs, and atmospheric monitoring systems in both industries.
And in coal mines, improved ventilation systems were introduced by mine
operators through the use of ventilation boreholes and bleeders shafts
for safer gob ventilation and the list goes on.
I have so far commented on technical improvements and these are
clearly important. But perhaps, the most important element in improving
safety is the relentless focus on ``safety culture.'' My current and
former employers all practice what they preach by providing training
well beyond what is required by the MSHA training standards. In
Foundation Coal, safety culture starts in the board room and at the
senior management level and cascades down to the mining operations.
Safety performance is discussed at every board meeting, every senior
management meeting, and most important at every shift at the mines.
This focus has been no different since I entered this industry as a
mining engineering student in 1979. The message in this industry is
clear, safe mines are productive mines. Said another way, do it right
the first time every time has been ``preached and practiced'' by my
employers throughout my career. However, based on recent statements
from individuals inside and outside of this industry, they would have
you believe that ``safety is not a top priority in the mining
industry.'' Those people obviously do not attend the regular meetings I
attend, nor do they understand the constant message about safety to
employees, because that claim is false. Again, our industry is not
perfect and we strive for Zero, and that is why new opportunities
should always be explored. This brings me to the current legislative
proposals aimed at improving safety.
current legislative safety ppoposals
The recent spate of State and Federal legislative efforts must not
be pursued in a manner so as to miss an opportunity to do what is
right. As Senator Byrd stated at the time of the January 23, 2006
hearings before the Subcommittee on Labor, Health and Human Services,
Education and Related Agencies of the Senate Committee on
Appropriations, ``politics must never play a role in the enforcement of
safety and health regulations.'' The mining industry could not agree
more, but the mining industry fears the politics of safety will play a
role if a rational approach is not utilized to assess and implement
best practices. To do otherwise may result in the implementation of
approaches and technology which are not the most effective or reliable.
In this regard, I want to address some of the proposed legislative
mandates that have recently appeared in this Congress.
First let us look at Communications and Tracking Technologies. The
industry members are supportive of improved mine communications. My
company's most senior engineer with extensive experience in German and
other international coal mines as well, had traveled to South Africa
several months before the Sago mine tragedy to assess available
technology. A completely fail-safe communications and tracking
technology, however, does not exist and did not exist at the time of
the recent mine disasters, notwithstanding what this Congress was told
during January 23, 2006 hearings. To my knowledge, an affiliate of
Foundation Coal installed one of the first PED systems in the U.S. coal
mining industry in Utah. This system worked to notify miners of a mine
fire in 1998. This system allowed a simple text message to be sent to
the miners advising them to evacuate the mine. This early warning
allowed miners to evacuate the mine immediately without injury. For
this we are grateful. However, it is important that you understand the
limitations of this system. First, the text message could only be
communicated one way. Second, the system had shadows whereby miners
were not always able to receive messages. Third, the system relied on
an in-mine antenna to function. In fact, the system was lost within a
matter of minutes after the original text message had been sent due to
the mine fire destroying the underground circuit. After that incident,
testing was done to see if an indestructible surface circuit could be
installed and provide the same level of coverage. No system could be
found that was capable of achieving this goal.
Can improvements in communication be achieved? Emphatically the
answer is yes. My concern is not that additional communication
requirements will be mandated, nor is it the cost of communication
systems. My hope is that realistic expectations of what is
technologically achievable drive whatever requirements become either
law or ``Best Practice'' in the industry. Also, the mining industry
does not object to the use of tracking systems although tracking
systems that approach the level of coverage expressed to this Congress
during the January 23, 2006 testimony clearly do not exist. Let us
approach this issue through sound science and not idle promises of
equipment vendors and others who want to sell a product or state as
fact that which is only a comment or opinion.
Next I would like to address Adequate Supplies of Air. The industry
promotes technology or ideas that provide ``adequate supplies of air''.
How that objective is achieved may vary depending on individual mine
conditions. Let us not forget however that the first and foremost
principle in this industry, a view shared by agencies and mine workers
alike, is to evacuate and not to barricade. Barricading is an absolute
last resort. The ability of a last resort chamber to withstand a
secondary explosion or fire is at best problematic. Our company,
without an Agency mandate, installed last resort chambers in 2 western
coal mines with exceptionally long escape distances. I am aware that
another company with which we were formerly affiliated installed
similar chambers in an underground molybdenum mine in the west with
multiple mining levels and shafts. These are workable solutions and can
provide a ``secondary'' means of safety. I say secondary means of
safety because again the first principle is to evacuate.
The 1969 Coal Act and the 1979 Mine Act recognized this principle
by requiring two distinct escapeways from the mining section to the
surface. It is not sound safety practice to encourage a false sense of
security. In fact, when last resort chambers were inserted into the
Mine Act, the mine rescue experts of that time period urged the Agency
to emphasize escape and not barricading in its training. We have all
followed this prescription for good reason--it is the right thing to
do. I realize the recent experience in Canada with the potash mine fire
may encourage legislators to revise the principle so as to barricade
first, but potash does not burn.
Further, the industry does not oppose additional self-rescuers for
escapeway systems that require a longer time to travel through to
safety. The industry is continuing to work hard to find a workable
solution to these issues. Our request is that if a standard is put
forth that it be performance based allowing for flexibility to meet the
standard.
There have also been proposals for revamping Mine Rescue Teams. Mr.
Chairman, the mine rescue system is not broken, but it can be improved
with the right leadership. At both of the mine incidents in January
2006, mine rescue teams answered the call and for this we are all
grateful. Changing the law unfortunately would not have changed the
outcomes. Rather than mandate teams at every mine, Congress and the
States should find ways to encourage mine operators to form teams of
miners who want to be involved in mine rescue or emergency service. The
industry's fear is that passing unrealistic mandates will create mine
rescue teams on paper only but will not create mine rescue teams that
have the desire to do what they are asked at the time of a mine
emergency. Furthermore, quickly formed and inadequately trained mine
rescue teams will discourage the willingness of well-trained teams to
put their teams at risk when the time comes to help a neighbor in need.
Mine rescue team members are very special people. They do not
participate in mine rescue for either the money or the glory. They do
it because they have the desire to help others in need. We can improve
the mine rescue system and the industry has looked at this issue many
times over the past decade. In the 1990s and again in 2002, summits on
mine rescue were convened by MSHA, and ideas were discussed and plans
were developed by mine rescue experts, industry, labor and MSHA. For
whatever reasons, MSHA has not taken what the industry, labor, and
Agency experts have put forth and caused positive change to occur.
Congress should allow these experts to again wipe off the dust from the
work that has been shelved and provide the mine rescue experts the
confidence that what is developed will be acted upon with all
deliberate speed. I do not come before you with the answer, but I do
know that well intentioned rules that are developed without the input
of the mine emergency experts would be a mistake. I know that these
experts can develop a solution. They showed at these summits that they
are willing to develop solutions. All they ask is for their ideas to be
followed-up with action. Let us consider a few additional points about
mine emergencies.
Let us not be fooled that safety will be improved by assuming the
answer is more mine rescue teams created through a legislative mandate.
Individuals who understand mine emergencies know that mine rescue teams
are the last line of defense. The industry looks at mine emergency
preparedness in a much broader proactive sense focused on improving
prevention, detection and first response. This Congress can provide the
leadership for mine operators to engage in the first two levels of mine
emergency preparedness so as to avoid the need for mine rescue and
recovery. After prevention and detection, the first level of mine
emergency preparedness is fire-fighting training. This involves trained
fire-fighting personnel capable of responding in the first critical
minutes of an emergency and the availability of fire-fighting
equipment. The second level of mine emergency preparedness involves
more highly trained fire fighting personnel who have undergone more
intense training and have additional fire-fighting apparatus. The next
level involves the mine rescue and recovery teams as we now know them.
The mining industry has not been afraid to spend money for mine
emergency safety if it is to serve a good purpose. Case in point is
that my company formed the first mine rescue team at Riverton Coal
Production in the coal industry in 15 years in 2001. It did so at the
time when the coal market did not support such costly expenditures. It
formed a mine rescue team not because of a legislative mandate, but
because strong senior and operational leadership believed it was the
right decision.
Congress can also assist in the formation of mine rescue teams by
providing that mine rescue personnel or operators will not be liable
for civil damages for acts or omissions resulting from providing such
rescue work unless such acts or omissions are the result of gross or
willful misconduct.
Increased Civil Penalties Are Not the Answer. Attaching significant
civil penalties for insignificant citations will not improve safety. If
this committee wants to penalize a bad actor, then MSHA has every tool
in the tool bag to do so now including closure of the mine, enhanced
civil penalties under Part 100, and criminal penalties. Further, not
allowing an independent body to review citations and the associated
penalties when applicable is a blatant attack on the constitutionally
derived due process of law. To my knowledge, no other forum in this
United States is precluded from reviewing the actions of an Agency
through Congressional fiat. It is not good practice to allow the Agency
which promulgates the regulations, enforces the regulations, and then
assesses the penalties under the regulations to avoid being reviewed by
an independent body. This is a bipartisan approach because it works
both ways. Penalties can go up or go down. To eliminate the opportunity
for a hearing before an independent and unbiased body is unfair. It
would not be appropriate in any sector of the economy, be it
transportation, agriculture, construction or any other industry with
safety incidence rates less favorable than those achieved in the mining
industry.
The West Virginia Experience. This industry knows the expediency
with which the West Virginia legislature passed legislation to address
the actual and perceived shortcomings of safety practices. Since that
legislation was introduced, several versions of an emergency rule have
been issued, reissued, and are currently being finalized. These revised
emergency rules are significantly different than the initial
legislation. Why do you suppose that is? I would submit that once the
industry, labor, and competent Government expertise were allowed to
have a seat at the table, a better solution was achieved without losing
site of the general precepts of the initial legislation. Mr. Chairman,
this committee should learn from that experience.
I have heard that some Senators believe we must do something
quickly with mining legislation because ``perfect is the enemy of
good.'' I would submit to this committee that legislation without the
support of science and facts is exactly what we must not do. This
committee and the American public and press should not rush to a
judgment of this industry especially in light of the vast improvements
the mining industry has made over the past several decades and its
superior incidence rate over other industries. We achieve more as a
total mining industry to solve a problem, without agendas, when we pool
our collective efforts of industry, labor and Government
representatives.
guiding principles
Mr. Chairman, before I move into Recommendations for Reform, I
would like to share with this committee the work of the mining industry
CEOs whose collective experience will be invaluable to Congress as it
discusses mine safety legislation. The CEOs of coal and metal/nonmetal
have shown strong leadership by establishing an independent commission
of safety experts who will examine how technology and training
procedures can be more readily adapted for use in our mines. I am
pleased to say that Mr. Cecil Roberts has agreed to be a member of that
commission. Those principles include:
Expediting development and introduction of ground
penetrating communication and tracking technology;
Improved emergency notification;
Enhancing safety training and rescue capabilities;
Providing liability shield and indemnification for mine
rescue activities;
Ensuring new requirements are accompanied by workable
transitional timeframes;
Providing authority for mine operators to conduct
mandatory substance abuse testing of all personnel at the mine;
Providing tax incentives to help companies invest in
equipment and training needed for enhanced mine safety and rescue
capabilities.
Now, I would like to address several areas in need of reform if we
are to achieve Zero.
recommendations for reform
Mr. Chairman, as shown in the statistics, the mining industry has
achieved tremendous success in improving its safety and health
performance during a time of tremendous change within the industry.
Today, the regulation of the mining industry has lost its focus and the
inspection of the mining industry does not fulfill the primary
principle Congress declared in the Mine Act by protecting its most
precious resource--the miner. We understand and firmly believe the
Federal Government has had a significant and longstanding role in
fostering occupational safety and health in our Nation's mines, dating
back to the passage of the Federal Coal Mine Safety Act in 1952. Before
that the Bureau of Mines was enforcing safety and health standards at
hardrock mines under the Federal Metal and Nonmetallic Mine Safety Act
of 1966. Then in 1969, Congress passed the Federal Coal Mine Health and
Safety Act. The Coal Act was amended in 1977 to include all mines in
the United States under what is now called the Federal Mine Safety and
Health Act of 1977 (the Mine Act).
During the 29 year period since passage of the Mine Act the
industry has changed dramatically. Regrettably, the same cannot be said
of MSHA. The mining industry believes it is time to review the Mine Act
to determine what works, what doesn't work, and what changes are needed
to further advance miner safety and health. The recommendations which
follow will come as no surprise to MSHA. Indeed, for many years we have
discussed these ideas with the Agency. Yet while some gains have been
made in the form of industry, labor and Government partnerships on key
issues, there remains a general reluctance to adopt needed policy
changes to reflect continued improvement in workplace conditions. While
we must improve our vigilance against causes of major mine accidents,
we must more intensely focus on the causes of individual fatalities and
injuries and the potential health consequences of workplace exposures
to harmful substances.
To effectuate the proper balance, it is time to reevaluate the
current regulatory and enforcement program and stop elevating form over
substance. The resources of both Government and industry must be
redirected toward the prevention of accidents, injuries and illnesses
and away from issuance of insignificant violations to meet a quota.
Decisions must be based upon sound science and recognition of the
industry's commitment to further improving miner safety and health. The
mining industry believes certain fundamental reforms must be
implemented for continued improvements to miner safety and health:
first, MSHA must base resource allocation decisions on
documented need, rather than unexamined conformity with the directives
contained in the Mine Act;
second, inspections must be more focused and the quality
of inspections must be enhanced through better inspector training and
education;
third, rulemaking and policy decisions must be achievable,
authorized by and in compliance with the law and developed on the basis
of sound science and the furthering of miner safety and health rather
than ease of enforcement;
last, a more cooperative, even-handed, and constructive
climate must be fostered between MSHA and its various constituencies.
Inspections Activity & Resource Allocation Decisions. Mr. Chairman,
MSHA resource allocation decisions, inspector utilization
determinations and the time allocated to individual facility
inspections must be adjusted based on industry segment and site
specific accident rates. MSHA should establish a mechanism to provide
incentives to reduce the number and scope of inspections on the basis
of performance and the adoption of voluntary performance programs. As
you know, under the Mine Act, MSHA is required to inspect every
underground mine 4 times per year and every surface mine twice per
year, but the Agency also conducts thousands of what it calls ``spot''
inspections aimed at measuring compliance with standards governing
specific conditions or practices. Contrary to Congressional
expectations, the two surface mine inspections and four underground
mine inspections do not consist of semi-annual or quarterly visits of a
few days' duration. Rather, they can generally mean a continual
presence at the mine throughout the year. MSHA's statistics show that a
large underground coal mine can have as many as 4,000 onsite inspection
hours a year. You must recognize that this level of inspection presence
means there are 2-3 inspectors at many mines every weekday.
If Congress wants MSHA to have a bigger impact on improving safety,
then let us make more efficient use of its resources. Said another way,
we need to align inspections with the first priority of the Mine Act--
protect the miner. More often than not, a mine inspector is not able to
cite the incidence rate of a mine, but they are able to cite the number
of citations that have been issued to that mine. Is this really what
the framers of the Mine Act wanted?
My experience is that a significant majority of citations are
issued based on a subjective application of the regulations. Let me
illustrate this point. A mine inspector is stationed at a street corner
with a speed limit of 25 miles per hour. A vehicle passes by the street
corner. The mine inspector does not know what speed the vehicle is
traveling, but issues a citation in any event because the inspector
believes the vehicle is traveling over the speed limit. Was the vehicle
traveling at 25 or 30 or 20 miles per hour? Should the mine operator be
subjected to increased civil penalties under these set of
circumstances? I would say not. This is the quandary the Mine Act
creates and the difficult position that mine operators and mine
inspectors are placed. Now reasonable people will know if the vehicle
is traveling at 45 or 50 miles per hour pass the street corner. There
is not a mine operator that would disagree that this vehicle should be
dealt with harshly. This is the reality of the mining workplace.
Another reality of the workplace is what I will call the second-
guessing of mine operators. As an example, a mine operator will have a
rock dust plan or an equipment cleaning plan or a haul truck tire
maintenance plan in place that has been accepted for ``years'' by a
particular inspector or inspector group. And more importantly the
programs worked just fine for all those years. Then 1 day a new
inspector or field office shows up and says what you have been doing is
inadequate and issues a citation. Where is the fairness in that
approach? This is not an isolated story. This is a regular problem with
the way MSHA unevenly enforces the regulations. And the answer the
inspector or conference officer or district manager will commonly
provide, ``if you disagree, then appeal it.'' This is not a good
solution because the damage is done at the instant the citation is
issued and the mine operators are not in the business of making lawyers
rich.
Again, focusing on the facts and the science, there has yet to be a
study that shows that more inspections or more citations improve the
incidence rate of a mine. And there is good reason, it simply does not
compute. Mr. Chairman, this committee could do a world of good if it
modified the inspection regime to focus on the significant conditions
and hazardous conditions that affect mine safety. MSHA should be
mandated to modify its inspection regime to focus on the bad actors in
the mining industry and yes there are bad actors. In my 20 years of
experience in both the coal and metal/nonmetal sides of this business,
the good mines are inspected more and the poor mines inspected less.
Mr. Chairman, now let us really think out of the box. Let us make
MSHA inspectors share the responsibility of the incidence rate at a
mining operation. Let MSHA inspectors be judged on a mine's incidence
rate rather than its citation per inspector day rate. This novel
approach might cause MSHA to focus on what accounts for 90 percent of
the accidents and injuries to miners--unsafe behaviors, not unsafe
conditions. The industry is not abdicating its responsibility and we
would never suggest such an idea. However, if we joined the forces of
the mine operator and MSHA, the right behavioral change to achieve
improved safety and health would be the outcome and the ability to
breakthrough to Zero becomes more of a reality.
Present inspection procedures are disruptive and time-consuming.
They are citation oriented with little regard for addressing structural
deficiencies in safety and health programs. This industry is so
distracted by the actions of MSHA under the current inspection and
enforcement scheme that it actually takes away from the safety programs
at the mines. It hurts me to make that statement, but it is true. Mine
operators have a huge unnecessary burden having to manage 2 or 3 or
sometimes 4 inspectors daily and then having to manage a safety program
with the intent of changing miners' behavior and actually improving
safety. Further, this industry is finding it hard to find miners who
have the qualifications and certifications to be mine foreman or
responsible individuals because of the day-to-day distractions and
second-guessing brought on by an Agency gone awry.
MSHA must utilize the information available, all of which it
compiles and maintains, to identify problem areas and allocate its
inspectorate accordingly. MSHA collects a substantial amount of
accident data from operators. Indeed, under MSHA's regulations mine
operators must report all injuries and illnesses within 10 days and
other types of accidents directly to the Agency whereas under the OSHA
statute, thousands of workplaces need only record such injuries in a
log that is subject to examination by OSHA inspectors, assuming, of
course that those inspectors show up at the property. In short, MSHA
has an extraordinary database that can be used to better manage their
resources, but the Agency's resource allocation decisions must be based
upon documented need and analysis, rather than in response to those who
assert the greatest pressure on MSHA's management decisions. Given
their repeated claims of limited resources, and the need to focus on
problem areas while meeting their statutory inspection mandate, MSHA
needs to streamline its inspection approach to target those conditions
or practices which are known to contribute to injuries and illness.
We believe it would be appropriate for MSHA to establish a
mechanism to provide incentives to reduce the number and scope of
inspections based on performance and the adoption of verified and
objectively administered voluntary performance programs. Mines whose
safety performance exceeds agreed upon industry averages need not
receive the same degree of inspection attention as those that fail to
meet such criteria. My former employer operated a copper smelter
facility which applied for Voluntary Protection Program (VPP) Five Star
recognition. I had the opportunity to view this process and was
impressed with the rigor required before such a determination could be
granted. It is a process that is successful and actually places greater
responsibility on the operator to perform.
OSHA, by virtue of its expansive jurisdiction, has had to target
its enforcement resources in order to address those worksites and those
conditions that need the most attention. MSHA should consider adopting
similar targeted compliance programs which recognize those whose
performance is exemplary and permit focused attention toward those
whose performance does not meet well-defined criteria. Continuing to
mandate a minimum number of rigid inspections, with no consideration of
performance, will not move the incidence rate below the current static
plateau.
Of equal importance is that MSHA inspectors be trained and
qualified to inspect the type of facilities to which they are assigned.
The changing nature of mining and the enhancement processes used by
certain segments, for example autoclaves and roasters, mandates that
those charged with the responsibility of assessing compliance with the
law and implementing regulations be thoroughly familiar with the
processes employed. Underground coal mining is not the same as
underground metal/nonmetal mining. To believe that an individual,
solely by virtue of previous MSHA experience, is qualified to
administer and enforce the Mine Act at all operations is foolhardy.
Regrettably this is what is occurring in MSHA today. To address this
MSHA should consider developing minimum professional development
standards for individuals at all levels within the organization.
rulemaking
Mr. Chairman, MSHA's proposed regulations should undergo scientific
peer review, rulemaking procedures should conform to the law, and the
Agency should be responsive to its constituencies. All too often in its
rush to complete action on initiatives, MSHA has often relied on
dubious scientific premises, has given short shrift to the notice and
comment requirements of the Mine Act and the Administrative Procedure
Act, and has steadfastly ignored serious, scientifically sound, and
fundamental concerns expressed by operators and miners in the
rulemaking process. This was most evident in the late 1990's. Yet there
are those that would have you believe that because some of those rules
were later withdrawn that somehow this was a nefarious act on the part
of MSHA.
Regarding those withdrawn rules, let us take a minute and look at
some of the rules that were withdrawn and the logic behind those
withdrawals.
Belt Flammability--The idea of developing a new belt flammability
standard was driven by an increase in conveyor belt fires in the 1970s
and 1980s. While the development of repeatable test protocols and
standards to be met by these tests were being developed other safety
features for conveyor belt safety began to be widely used in the mining
industry. Among these other items were better early warning fire
detection systems and Programmable Logic Controls (PLCs) for more
reliable belt slip and sequence protection. These combined with general
standards of examinations and maintenance of belt systems resulted in a
significant reduction in the number of occurrences of belt fires during
the 1990s. This information as well as the toxic by-products caused by
the types of chemicals needed to meet a new fire resistant test
resulted in a logical concern that this rule as unnecessary. Safety
professionals concluded that prevention, detection, and suppression
were better safety systems that provided a better measure of safety.
Respirable Coal Dust--The evolution of the Respirable Dust
regulation withdrawal is a template for how regulations should be
developed. The original regulations were pushed through to public
hearings in the mid 1990s. At the public hearings, a universal
condemnation of this proposal from both industry and labor resulted in
the withdrawal. Both industry and labor wanted a real time monitor that
minimized operator involvement in the actual sampling. Research was
conducted under NIOSH and eventually a personal dust monitor of PDM was
developed. Before these units could be field tested and a workable
process for their use could be developed, MSHA again came out with a
revised version of the previous regulations. Again, both industry and
labor vigorously commented that these rules failed to meet the goals of
protecting the miner. These rules were also withdrawn and work
continues on developing a personal dust monitor regulation. As an
aside, I would like to comment that much of the work on PDM development
has been through a partnership of industry, labor, MSHA and other
interested parties under the umbrella of NIOSH functioning as a
``honest broker'' to determine what available technology is capable of
accomplishing.
SCSR's--Possibly the most misleading comments have been made
regarding SCSR proposed changes. It was implied that the proposed rule
would have provided a SCSR that would function for longer than 60
minutes. The quest for a new generation of SCSRs was for a more
ergonomically sound, i.e., a maller 1 hour unit. This rule was focused
on designing a SCSR unit that was smaller without increasing the amount
of air available to a miner. In essence, this was an ergonomics rule.
Ironically, the rule missed the boat entirely. We believe the better
approach is to provide a smaller unit with 20 to 30 minutes of air and
then to require a plan to have more air available in stored units that
do not have to withstand the destructibility testing of the belt-worn
units.
Air Quality Rules--This rule was withdrawn in 2004. MSHA's reasons
for withdrawal acknowledge that ``it had been more than 13 years since
the proposal was published and more than 12 years since the comments
were received. MSHA acknowledges that the threshold limit values (TLVs)
are more than 25 yeas old. However, at this point, MSHA cannot proceed
without reevaluating its approach to the complex issues that this
proposed rule addressed and developing alternatives using more current
scientific and technical information.'' MSHA went on to state ``Such a
comprehensive approach to rulemaking is no longer a viable means to
address such concerns, especially in light of the Eleventh Circuit
decision in AFL-CIO vacating a similar OSHA standard. The AFL-CIO court
vacated OSHA's entire air contaminants rulemaking, finding that the
Agency had not met its statutory burden in establishing the PELs for
each of the 428 contaminants regulated by the standard.''
Diesel Particulate Standards--These rules were proposed in 1998 and
1999 and the rulemaking did become final for coal in 2003 and is still
pending for metal/nonmetal. While MSHA touted its ``toolbox'' approach
which resulted from a series of public meetings conducted to share
ideas on methods to reduce miners' exposures, they did propose rules
that are vastly different which makes no sense to either industry.
However, as I earlier described when discussing PDMs, there has been a
diesel partnership, consisting of the same groups of constituents
working on the implementation of these rules.
Belt Air--Regulations to allow for the use of belt air to ventilate
the working sections was approved by the Assistant Secretary in 2003
and has now been labeled by some as an example of a reduction in
safety. These regulations basically put into regulation what has been
approved in section 101(c) petitions for modification requests since
the early 1980s. To put this into perspective, petitions had been
granted for using belt air to ventilate working sections at over 100
coal mines prior to this regulation being finalized. These petitions
for modifications were granted by Assistant Secretaries working for the
Department of Labor under both parties. There was nothing under-handed
about this regulation being enacted. This regulation essentially
codified the requirements of the various petitions for modification
into one set of regulations that any operator of the industry could
comply with if any of its mines needed additional ventilation for a
working section.
policy formulation
I agree with Mr. Cecil Roberts' statements during his testimony on
January 23, 2006 before the Subcommittee on Labor, Health and Human
Services, Education, and Related Agencies of the Senate Appropriations
Committee when he said, ``Too often MSHA relies on ``policies,'' which
are developed internally and without public comment, to circumvent the
Mine Act. This reduction in MSHA's effectiveness didn't happen
overnight; it has been a problem for much too long. We have been
critical of MSHA under both Democratic and Republican
administrations.''
MSHA should be prohibited from rulemaking by the issuance of policy
statements or by after the fact rationalizations during litigation.
Section 101 of the Mine Act and the Administrative Procedure Act extend
to the regulated community certain participatory rights in terms of a
regulatory Agency's rulemaking process. Under the provisions of both
statutes the public must be afforded adequate notice of, and the
opportunity to comment on, a regulatory Agency's intended actions.
Moreover, while the statutes extend considerable discretion to the
regulatory body when considering comments from the public, its implied
intent is to structure rules that are responsive to the interests of
the public, i.e., the regulated community.
The notice and comment requirements of administrative law are
significant and do not serve an idle purpose: they give the public fair
and adequate notice of proposed regulatory changes, help insure sound
standards by permitting input into the regulatory process, and insure
affected parties due process of law. On many occasions, however,
because MSHA is apparently unable or unwilling to undertake a proper
rulemaking under Section 101 of the Mine Act, it has chosen to evade
its legal obligation by enforcing new requirements arrived at by
administrative fiat.
When these policy initiatives result in an enforcement action and a
subsequent legal challenge by an operator, MSHA takes the position that
the Mine Safety and Health Review Commission and the Courts of Appeal
must ``defer'' to the Agency's interpretation of the Mine Act or its
own standards as long as the interpretation is ``reasonable'' and, of
course, reasonableness is a matter of subjective judgment. MSHA
apparently believes that it can adopt any ``interpretation'' of a
standard that it wishes and then argue that its interpretation should
be granted unquestioning deference. This attitude characterized the
single shift sampling policy, which was vacated by the 11 Circuit Court
of Appeals during the latter part of the 1990s as well as the attempt
by the Agency to overturn the commission's precedent by unilaterally
changing the definition of ``significant and substantial'' as that term
is used to describe the degree of seriousness of a safety or health
violation as well as the reissuing of an invalidated policy defining
the designated occupation for respirable dust sampling purposes.
Frankly, Mr. Chairman, what concerns the mining industry more is
when we challenge MSHA on an issue in court or in the public and win
only to find out they will issue a policy and hammer the industry even
harder. Way too much deference is given to this Agency and its ill-
advised principles. The true experts in this industry are mine
operators and laborers. Yet we read decision after decision stating the
expertise of MSHA should prevail. This is quite disheartening when most
of the scientific research into equipment design or ventilation
techniques is being driven by mine operators and NIOSH, not MSHA. The
deference given MSHA by the courts has swung the pendulum to the unsafe
side.
cooperative approach
There are some in this industry that believe this ``partnership''
approach is like the ``fox guarding the hen house'' and that we should
abandon this approach. I am flabbergasted by these beliefs and
comments. What has this Government and country come to when it would
prefer confrontation over cooperation? What are we afraid of? Are we
afraid that the glory may be received by someone else or do we feel we
can only show strength in conviction by always raising the rhetoric. I
have personally participated in the diesel, noise, and respirable dust
partnerships involving industry, labor, MSHA and the NIOSH. As you may
know, just last week a partnership was formed under the direction of
NIOSH on Mine Emergency Communications. I know that cooperation is
better than confrontation. I further know that all parties have input
and no one party is disadvantaged by these partnerships, the most
important party being the miner. More is accomplished during these
intense periods because the ``science flows to the top'' and directs
the actions of the parties. Agendas do arise and over time are
eviscerated because the parties at the table won't tolerate these
agendas and eventually good, science-based compromise prevails. Indeed,
we do not always agree and have honest disagreements during these
partnerships. But more good has been accomplished over the last 5 years
during these partnership efforts than during the confrontations of the
1990s. Because the confrontation is less, the outcomes are more and
better.
conclusion
I have had the distinct honor of participating with the CEOs of the
mining industry as they set forth their guiding principles regarding
mine safety and health. These are people who have lived and worked in
this noble industry and dedicated their lives to this noble industry. I
urge this committee to weigh carefully the recommendations of our
industry's leaders and give their guiding principles all due
consideration so that any legislation resulting from this oversight
reflects the practical and thoughtful reflections of their considerable
experience.
Today, mine safety and health professionals face challenges far
different from those anticipated when the Mine Act was enacted. Today's
challenge is to analyze why accidents are occurring at a mine, then use
that analysis as a basis for designing programs or techniques to manage
the accident promoting condition or cause. Where existing technology is
not sufficient, mine operators must be afforded the flexibility to use
all existing, nontraditional means to protect miners.
MSHA has been, and must continue to be, a partner with industry to
address these new concerns. This can only be accomplished through:
the reallocation of resources, both in terms of personnel
and budget dollars, to address legitimate problem areas that still need
correction;
the incorporation of flexibility to target inspection
resources; the allocation and rededication of technical support
services to address technical mine problems;
the establishment of an open and equitable rulemaking
process, that quantifies risk and benefits, abandons the penchant for
regulating through policy and holds all parties, including MSHA, to the
same evidentiary standards.
Mr. Chairman, once again, on behalf of the members of the National
Mining Association, thank you for the opportunity to give our
perspective on this vital public policy matter. If you or the other
members of the committee require additional information, we stand ready
to provide it.
The Chairman. Mr. Peelish, Mr. Novak mentioned in his
testimony that the primary mining research division of the
Federal Government was transferred and downgraded from when the
Bureau of Mines was closed in 1996. Has this had a negative
affect on the development of mining practices and technology
that ensure the safety and health of miners?
Mr. Peelish. Sir, I think that the Bureau of Mines did
fundamental research in mining, and many of the advances that
were made in mining were done through the Bureau of Mines. That
was a great, great facility. I have had the opportunity to work
with a German parent company that previously owned us, and the
German model was to have much Government research done in the
German coal mines, the DSK coal mines. That was similar to the
Bureau of Mines model, although those mines were not owned by
the Bureau of Mines.
NIOSH has tried to pick up the ball and has done a good
job, but I think the basic level of research now is much, much
less than it previously was under the Bureau of Mines. So I
think it has impacted, although the partners that we have
developed in the diesel, respiral dust, noise area and now the
mine technology have proven to be much better. The idea of
cooperation versus confrontation has assisted us because all
people have a voice at the table. The agendas at the table are
quickly done away with because the science tends to flow to the
top, and NIOSH is a good honest broker when it comes to making
certain that the topic at hand is the protection and the safety
and health of the miner.
The Chairman. Thank you.
Mr. Neason, I appreciated your comment that you are usually
talking to mechanics.
Mr. Neason. It is a very different place, yes.
The Chairman. I am an accountant. I really prefer numbers
and I don't like to speak that much. I know that many in the
mining industry are concerned that the workforce is graying,
growing older, and there is little influx of new miners. There
is a lot of concern that these experienced miners will leave
the workforce and industry will have to rely on newer, less
experienced miners which could result in less safe and
productive mines.
Can you tell me a little about the demographics of the
employees that work at your mines, and as a former miner
yourself, do you think that there is sufficient incentive for
new people to enter the profession, and if not, what can be
done?
Mr. Neason. Well, you know, it is not a real alluring
business to a lot of young folks. There is no question about
that.
Senator Byrd. It is not what?
Mr. Neason. It is not a very alluring business to young
folks when we are talking about bringing in a younger
demographic into mining.
I did an annual refresher training class 2 days ago, and
when we were going through our accident history and how we were
doing as a company, the question immediately jumped out why are
these kind of accidents that we are having, maintenance-related
things, why were they occurring, and I was talking to a group
that was pretty much made up of older employees, and they were
just so adamant that the experience that they had is fantastic,
but the fact of it is a lot of them are now 50 and 60 years
old, and a lot of the work that they do is burdensome on them
and there is not a lot of younger guys around to help them out
with it.
So there is absolutely an issue with the aging workforce
that we have got, and how you bring younger folks in, I don't
know. I took the job because my dad did it. My grand-dad did it
and his dad did it, and it was just part of what went on in our
family and in our community, but I think that is really the
only pull that there is right now.
The Chairman. Thank you. Dr. Howard in his remarks observed
that in mining in particular, there is no single safety
solution because each mine is different and requires a
different mix of technologies and practices. I know his view
reflects the concern of many about a static one-size-fits-all
approach to safety regulation. Your comments on it, each of
you?
Mr. Peelish.
Mr. Peelish. Mr. Chairman, I think the goal of the Congress
and of MSHA is to set an objective. Because there are different
conditions in mines, there are different needs of mines. The
innovation will be stifled if a rigid approach is always
adhered to. I believe that a performance standard that has
flexibility is the proper approach to achieving ultimately the
best and the best practices for miner safety and health. I
would agree with that comment.
The Chairman. Mr. Neason.
Mr. Neason. Absolutely. In fact, when you said it in your
opening statement, I was so relieved, because that was 90
percent of what everybody wanted me to come up and make clear,
is that we are all very, very different and there has to be
flexibility in how you present an answer to a problem. We weigh
risks all the time and make determinations on how to best make
sure that we manage every risk to make sure everybody gets to
go home safe every day. If a flat answer is thrown out that
mandates we allocate a whole bunch to this area, that may not
fit exactly what we need to take care of everybody, and you
might end up kind of creating a culture where you are trying to
satisfy regulators instead of make sure that everybody is as
safe as they can possibly be.
So having that flexibility, and MSHA understands it and
even in what they put out, it is pretty clear that everyone
respects the fact that a stone mine is different from a coal
mine and a coal mine is different from a salt mine, and that is
absolutely critical that if anything else happens, everyone
understands that as well.
The Chairman. Dr. Novak.
Mr. Novak. I will add to that, that even within coal mines
there are significant differences between mines. Every mine has
its unique set of conditions. If you look at the depth of the
overburden, there are some mines that may operate as low as
less than 300 feet where other mines are over 2,000 feet. They
each have their different conditions in terms of the gas
contents of the coal seams that they are working with.
So I would second or third, I guess, what the other
panelists have just said.
The Chairman. Mr. Roberts.
Mr. Roberts. You probably wouldn't be surprised I disagree
with that for the most part. First of all, let me say that I
think the problem is that MSHA has been way too flexible, and
it is not a problem with them not being flexible enough. Every
coal mine in the United States is dangerous. Anyone that tells
you they work in a safe coal mine, they don't understand what
they are talking about. Every coal mine in this country is
susceptible to fires, explosions. Most are susceptible to
methane. Most mining laws that were written in 1969 took into
consideration that the coal miner was the highest priority in
that mine. That is what the law says today.
Are you suggesting to me that some mines have certain
unique characteristics? Certainly. I have been in mines where
water was pouring through the roof and you almost needed an
umbrella to keep from getting soaked. I have been in mines in
Alabama that are 2,000 feet deep, and it is pretty warm in
those mines and millions and millions of cubic feet of methane.
You have got to pay particular attention to that. But all coal
mines create dust. All coal mines can give you pneumoconiosis
or black lung. All coal mines have to have the roof supported,
and if you don't support the roof, people get killed. Every
coal mine in this country has electrical standards that I don't
think are certainly unique. I think every coal mine in this
country should comply with the Federal law, and I think when we
start down the slippery slope of we are just a little bit
different here, one of the problems I point out, Mr. Chairman,
is the law is very specific that every coal mine is supposed to
have a mine rescue team. That is what Congress said. MSHA said
that is not necessarily true. That is another area where I
think that the rule-making authority of MSHA has to be observed
and taken into consideration by this body and the entire
Congress.
When they said we don't need a mine rescue team in every
location because of certain circumstances, we ended up with a
situation like we had at Sago. They didn't have a mine rescue
team. They had to get one from someplace else.
So we have to be cautious, I think, Mr. Chairman, when we
start down this area.
The Chairman. Thank you, and I will have a written question
also that will ask more about the communications devices that
you said were already approved. I appreciate that.
Senator Kennedy.
Senator Kennedy. Thank you again, Mr. Chairman.
I just want to use my time to mention some of those that
are here, the families that are here from mines where miners
were lost. From the Alma Mine, we have Delores Bragg and from
the Sago Mine, Amber Helms and Virginia Moore, Paul Cranston,
Peggy Joyce Cohen, and John Groves; and from Jim Walters, we
have Freida Sora and two brothers, Clinton and Doug Mullins and
Wanda Blevins and David Blevins. So I want to recognize them
and thank them for being here.
Mr. Roberts, just to follow up on what the chairman asked,
in your testimony, you've indicated that with the modernization
of the different equipment in the mines, they haven't kept pace
with the safety and health procedures. Could you just elaborate
on that for us, please?
Mr. Roberts. First of all, Senator Kennedy, and you were
out of the room, but I would have said the same without you, I
appreciate very much your interest in coal mine health and
safety and standing up for workers over these many, many years.
A word of interest for the committee, I invite them to look
at this--there was a coal miner in Poland, on Monday, that was
lost for 111 hours, covered up, and he can only be thankful
that he didn't mine coal in the United States because he would
have been dead. He had one of these devices that you have seen,
Mr. Chairman, that sends out a signal so it can be located.
They followed that signal, uncovered the rock off of him, and
he walked away and just had to have water and fluid and he
lived. That would have never have happened in the United
States. I think that is tragic that that is the case.
I find with great interest too in Australia, for many, many
years they have used----
Senator Kennedy. Let me ask you do you think those devices
should be mandatory?
Mr. Roberts [continuing]. Absolutely.
Senator Kennedy. What about the rest of the panel, just
quickly, if they could answer that? Mr. Novak, could you just
go quickly, should they be mandatory? Quickly.
Mr. Novak. I think if they are proven effective in the job
that they are supposed to do, then they should be mandatory. I
don't think that we should just accept what is available there
and install those and require the industry to install those in
their coal mine.
Senator Kennedy. Well, we are not talking about ineffective
and unhelpful kinds of things.
Mr. Novak. I am not sure we aren't. I am not sure the
communications systems that we feel that we need in our coal
mines are commercially available at this point.
Senator Kennedy. Well, that is a good issue for another
time. We are finding out that in other places, as has been
mentioned, they have some very important break-throughs in
terms of technology which we are not adopting.
Mr. Novak. But in answer to your question, yes, I think
that communication systems are critical.
Senator Kennedy. Thank you.
Mr. Roberts, do you want to continue?
Mr. Roberts. Yes. I was just going to point out, Senator
Kennedy, a couple of points if I might. I held this up, I think
before you came in. I said this is it for communications in a
coal mine, and it never works in an explosion. It never works
in a fire and it never works when the top falls. So right now,
we are talking about a coal miner having zero communications,
and if we can improve that to 25 percent or 50 percent, then I
think we should do it.
The question I have is how much longer are we going to ask
the coal miners of the United States of America to stand by and
wait on somebody to come along and say, well, 5 years from now,
we will get you something, 10 years from now, we will get you
something, 20 years from now, we will get you something. I
think that is really what we are talking about, let us delay
and let us not do it, and let us not spend money.
I just want to point out one thing. I get a little bit
frustrated here. Coal companies are making enormous amounts of
money, Mr. Chairman, and that should not go unnoticed here
today. Coal companies are making anywhere from $50 million a
month in some instances. Stock prices are up. Coal prices are
up. Spend $10 million for a long wall, $150 million for a belt
line. But you say buy something for coal miners so they can
live, $3,500 for another bottle of oxygen, never. Let us not do
that, too expensive, don't mandate that.
Senator Kennedy. Well, hopefully those days are over. Let
me just ask, and then my time is up, I will ask President
Roberts what could we learn from the families themselves? You
have talked to a lot of the family members. I was enormously
impressed, I think all of us were, by particularly the personal
kind of tragedy that they have gone through--that is obviously
No. 1--but second, by their knowledge of the whole industry and
the awareness of it and that obviously if it was the wives that
were left, their husbands had talked to them. They seemed to
have quite a considerable kind of awareness as to some of the
challenges.
What have you found out from talking to them?
Mr. Roberts. Let me say this: We have known the Jim Walter
5 families now for 5 years, and I think they would tell you the
same thing about us. We love them dearly. We have gone through
a lot together. We just recently met the families from Sago and
Alma. Of course, those were two nonunion mines, but it makes no
difference. Coal communities where people live, we care deeply
about one another, rely on one another. Mine rescue teams
risked their lives to save many of those UMWA members.
What we have learned as we learned in 2001, families want
answers, and some of the most powerful testimony that I have
heard ever given in this Congress was given in a House hearing
conducted by Congressman Miller when almost the entire panel
was family members, extremely moving. They want answers. They
want to be part of what is going on here.
I must say to Congress, and I would ask you to consider
this, and to Senator Specter's credit, he was somewhat amazed
at one of the hearings I was in that the company is part of an
investigation. The company that is being investigated, but they
are on the team here, so to speak. MSHA who may have
culpability, they are on the team. So we have got everyone who
might be culpable doing the investigation.
The families in 2001 said, ``What about us, what role do we
play.'' You play no role. These families from Sago will tell
you that they have gone to their Government, MSHA, and said
would you give us some information about what is going on here,
and they have been told basically we will provide information,
but they have not been provided it. They are not part of
anything that goes on here.
I think, quite frankly, Senator, that there is a real flaw
in the investigative process, and every family that has ever
been involved in this will tell you exactly that. They will
tell you what I just told you. I invite anyone, Republican or
Democrat, in Congress to ask them the same thing, and they will
tell you what I just told you; but I think above all, I am very
much moved by the fact that they just don't want this to happen
to anybody else. They have been through this. They understand
the pain that goes with this, the sadness that goes with this,
the sorrow.
If I might, I was just talking to Mrs. Blevins this morning
who lost her husband in 2001, and she was sharing a story with
me. She said, ``I can't hardly go to the supermarket and go by
the bakery section of the supermarket.'' She said, ``my husband
would go by and buy every cake in the supermarket, and we would
have this terrible debate.'' She said, ``I just don't even look
at it anymore.'' She said, ``I don't cook anymore.'' She said,
``why should I cook. I don't have anybody to cook for.''
And they came up, and the most powerful testimony I heard
was that they don't want this to happen again. They are
petitioning their Congress for this not to happen again. They
are petitioning Congress to take the steps necessary that this
doesn't happen to anybody else.
The truth of the matter is I think we can take some very
bold steps here, and I don't know if we are ever going to be
able to say that you will never have someone killed or injured
in a coal mine, but we can take the steps necessary to prevent
this type of a tragedy again. There is absolutely no doubt in
my mind that that can be done.
Senator Kennedy. Mr. Chairman, my time is up. Senator Byrd
has left. He had some questions that might be submitted at the
appropriate time. Thank you.
The Chairman. Absolutely.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I just want to say to the audience as I said before, now
this panel is not controlled by the Office of Management and
Budget. They speak what is exactly on their hearts and minds,
and I need to make that point because I might have left the
impression that everybody who testifies works for the
Government. That is not true.
I take incredibly strong exception to that concept of
mines, that there is more dangerous work than mining. Yes. I
guess if you are a soldier in certain parts of the world, that
might be true, but people don't understand. In fact, what
people need to understand is probably 99.9 percent of Americans
have never been in a coal mine. They have never been
underground. They have absolutely no idea. Probably 95 percent
of West Virginians or 97 percent of West Virginians have never
been in a coal mine, because you can't go in a coal mine just
because you would like to go visit and see.
I mean, it is highly dangerous and it also an environment
where it isn't just the machinery or roof bolts working or the
chambers of ventilation. It is not a matter of that. It is all
of this natural material. The work of higher powers is placed.
There are so many things that are totally out of the control of
miners that they have to deal with. It is incredibly dangerous.
Second, I would like to ask, Mr. Peelish, in some of your
foundation coal mines, you have refuge chambers; is that
correct?
Mr. Peelish. For companies that we previously owned or
mines, Senator, for mines that we previously owned, we did, and
it based on primarily the length of escape. The mines were deep
into the mountain. There was long escape, and so we felt that
that was an appropriate means.
Senator Rockefeller. And I congratulate you for that. When
those were available and something happened, did miners tend to
go to the oxygen chambers, or did they tend to still try to get
out of the mine?
Mr. Peelish. Fortunately they were never used.
Senator Rockefeller. So you don't know?
Mr. Peelish. The first and always the first principle that
we taught was to escape, to evacuate. Even in the Mine Act in
1969 when it says the Secretary may proscribe, I would submit,
sir, that at that time, the professionals did not believe fully
in rescue chambers, that escape was still the primary means
out, or the Secretary could have been told you shall require.
Other countries, Canada does require rescue chambers. Parts
of Australia do not. South Africa does not. Germany does not.
So it is not a uniform approach.
The ability to have air, as Mr. Roberts mentioned, I think
is a standard that is an objective standard. How we get there
and how we meet that standard could be flexible depending on
the type of mine, depending on the length of escape. So there
are alternatives.
Senator Rockefeller. Thank you. Thank you, sir.
I want to bring up the question of rescue teams, and there
are some here. I think it occurred to Senator Kennedy and
Chairman Enzi and myself and Senator Isakson when we talked
with family members in Sago, which is where we all four
gathered, that it was not just the emotion and the knowledge,
but I absolutely believe you could have assembled some rescue
teams right out of those family groups, and yet Sago didn't
have its own rescue team, and the question I want to ask is
that, I mean, you have to wait 2 hours, 6, 7, 8 hours later,
and you have got 1 hour's worth of oxygen? I mean, the math
doesn't add up and the death and injuries do under
circumstances of that sort.
Therefore, the moral question is whether or not any mine
that is in business ought to have its own rescue teams. That is
not the case now and many would oppose that very vigorously. I
am asking is that not a standard that should be the cost of
doing business in mining?
Mr. Roberts. As far as I am concerned, Senator, it is in
our testimony that is absolutely part of doing business. If you
read the act, that is what it says when making an exception
for, I believe, mines less than 35 employees, I believe is what
the act says; but there has been a rule issued here along the
way that says you don't have to do that.
One of the interesting things that has come out this, if
you recall when Mr. Hatfield came to Congress--he is the
president of Sago--he said he was going to get his own mine
rescue team at Sago, and he should as well as every other coal
company in the United States of America. I would invite
Congress at some point in time to talk to these very brave mine
rescue team members. I took a little bit of that training when
I was at the mine, but I don't want anyone to believe I know
anything about it. These people dedicate time to train. They
are coal miners for the most part. But when you come on the
scene and you are not familiar with the coal mine yourself, you
have got to familiarize yourself with the mine. You have got to
look at a map. You have to understand the ventilation. You have
to understand everything.
If you have got your own team of people who work in that
mine, they already possess that knowledge from the very
beginning, and there is a chance if you have your own mine
rescue teams that if they get underground before the
atmospheric conditions get to the point where you can't go.
That is one of the things that happened at Sago. As time went
on, it got worse. It didn't get better.
Senator Rockefeller. I would just ask of the panel is there
any descent from that view?
Mr. Peelish. Senator, before a mine rescue team can enter a
mine, it just doesn't take one team. In West Virginia, it would
take three teams.
Senator Rockefeller. That is true.
Mr. Peelish. To be able to go underground.
Senator Rockefeller. As well as the inspection that takes
place before anybody would go.
Mr. Peelish. Yes. The first thing you have to do is assess
the situation. To my knowledge, the Sago and Alma Mine
disasters were not a result of the ability to not get teams
there in a timely manner. So we do have our teams. We provide
coverage for other people who don't have teams, but again, this
is a voluntary endeavor. These people are very, very special
people. They don't do it for the money or the glory. They do it
for the fact that people have a need and they fill that need,
and so there is a lot here that I think this mine rescue
professionals need to address. There is a lot of work that was
done back in the nineties and 2002, and that work needs to be
dusted off.
Senator Rockefeller. I am going to interrupt, because I
have got a couple of questions and no time.
When I was Governor of West Virginia, and it still goes on
today, there were mine rescue team competitions and they come
from various States, and if you think the West Virginia
University and Pitt play each other in football and basketball,
you ought to see the competition that goes on in those things.
That is ferocious. But the point is that they are trained. They
are alert, and if they are alert for a company that can easily
afford to have them and not available--you say they weren't a
factor in the Sago mine. I might dispute that, and I am not
asking for an answer from you. I am just looking at you as I
talk. I don't buy that. I just think that that ought to be a
part of doing business. It is like wearing a 1-hour oxygen
belt. That should not be a part of doing business, and I feel
strongly about that.
One more thing, Mr. Chairman, and this is a sensitive
subject. In the legislation which we got through the Senate
very quickly, the Senate Finance Committee very quickly,
because it happened to have a vehicle which it could get on, we
put in incentives for companies to start up their own mine
rescue teams. You say why would we do that, and there is no
clear answer to that except that something has got to happen,
and if we can put up a small amount of incentive for smaller
companies to do that kind of thing, then I think we should do
it, and if it is not necessary, that will become evident in the
long run.
But we have something else in there, which is very
important, and that is we have 1-800 numbers at the State and
Federal level that can be called by miners if they see that
there is something wrong but they are afraid to report it, and
I am sorry, but when we talked with the families, there were an
awful lot of people who talked about that fear of reporting
something within the mine which they knew was not right because
they might be worried about consequences. I think that should
be eliminated from the fear and psychology of the miner, and
there are a variety of ways to do that, but we have to make
them unafraid to call the local, State mine safety or MSHA, and
make those anonymous phone calls so that they can have
expressed it and so then the burden passes to the recipient.
Does anybody disagree with that kind of concept?
Mr. Neason. No, sir.
Mr. Peelish. Not at all.
Mr. Novak. Not at all.
Mr. Roberts. Absolutely not.
Senator Rockefeller. Do you agree that it is a problem? Do
you agree there may be some mine mistakes?
Mr. Roberts. I know there is.
Senator Rockefeller. Or disasters that happen because
people didn't dare speak up?
Mr. Roberts. Senator, you probably have heard the same
thing I have heard in Logan County, for instance, and West
Virginia and other parts of the country. If the company finds
out that you have called MSHA, they are going to find a way to
terminate you. Now, some can say that is not true, but
certainly the miners believe that and have been led to believe
that.
Senator Rockefeller. Mr. Chairman, I will leave it at that
with very strong thanks to both panels and especially to you
sir.
The Chairman. Thank you very much for your participation
too, and I do want to congratulate you on that very speedy
amendment that you got through that a number of us co-
sponsored, and it isn't easy to get things through by unanimous
consent, but Senator Rockefeller did that. That means talking
to a lot of people, not just 100 Senators, but a lot of staff
too.
Coming from a coal mining area, I am seeing the interest in
the Nation in coal being revived. For a long time, there was a
decrease in interest and, in fact, a lot of ridicule of coal
and a decline in the number of mines and the number of workers,
and the Nation finally figured out that we are running out of
oil. We are running out of natural gas, and the one thing that
we have in some abundance is coal, and it has enjoyed a huge
resurgence, and I can remember when out my way, they used to
say that a ton of coal costs less than a six-pack of beer. That
certainly took away a lot of interest from being able to do any
mining, and now it has escalated quite a bit from that time,
and I know that there will be additional interest in coal and
the Nation will need it, and of course the only way that those
mines operate is if there are miners, and it is extremely
essential that they feel a degree of safety.
We are some of the people that can do that, and there
hasn't been a major change in the mining laws since its
inception, and we need to make some changes on that and we work
diligently to do it, and we will want to make it so that we not
only can get the tools that are needed for safety into the
mines, but that we can encourage people to invent new ones and
get those in there too. We don't want something that is so
flexible that we have to stick with whatever is there now,
because I think that as this industry grows, and it will grow,
that it will become a bigger market for innovation and
invention.
And, of course, the people that can do some of that the
best are the ones who are there working every day. I go back to
Wyoming almost every weekend and tour a difficult part of
Wyoming, and the reason I do that is so that I can talk to the
real people, and sometimes they have a little problem with the
Federal Government, and all I have to say is what do you think
we ought to do about it, and I get a nice common sense answer
out of it, and quite often we are able to do that. A lot of
times, it doesn't even take a Federal law to do it, so that
people are there on the ground, and I appreciate many of you
who are here today who may have some of those common sense
suggestions for us.
We do have a Web site, and anyone in the audience who wants
to share some solutions, we hope they are solutions. They can
share problems as well, but utilize the Web site and share
those.
We will keep the record open for another 10 days. Anyone's
statement from the committee that they want to submit will
become a part of the record, and I have some questions. Most of
them deal a little bit more with economics and numbers, and
those don't make good hearing fodder. So I will be submitting
those to you and I hope you will respond as quickly as
possible.
With that, this hearing is adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Reponse to Questions of Senator Enzi, Senator Kennedy, Senator Hatch,
and Senator Byrd by David G. Dye
questions of senator enzi
Question 1. Would you explain the manner in which the amount of a
civil penalty is currently determined by MSHA, and what personnel are
involved in making that decision?
Answer 1. The amount of a civil penalty currently ranges from $60
to $60,000. The single penalty assessment is a flat $60 and can only be
imposed on a 104(a) citation that is not significant and substantial
(S&S) and that is timely abated and that occurs at a mine that does not
have an excessive history of violations.
The regular assessment is imposed for most violations that result
in withdrawal, S&S citations and 104(a) non-S&S citations that are not
timely abated or that occur at a mine with an excessive violation
history. Single penalty and regular assessments are computer-generated;
the violation data are transmitted electronically from the issuing
Enforcement Office to the Assessment Office. Regular assessments are
calculated by the computer using a formula whereby penalty points are
assigned for each of the assessment criteria (history, size,
negligence, gravity, and good faith) according to point tables in 30
CFR Part 100 and then converted to a dollar amount using the penalty
conversion table, also in 30 CFR 100.
Special assessments are reserved for those violations that are of
such a nature or seriousness that an effective penalty cannot be
derived by either the single penalty or regular assessment method.
Under 30 CFR 100.5, special assessment must be considered for certain
types of violations. Special assessment is not mandatory for any type
of violation. However, all violations in the following categories must
be reviewed by enforcement personnel for special assessment:
1. fatalities and serious injuries
2. unwarrantable failure to comply
3. operation of a mine in defiance of a closure order
4. denial of right of entry
5. individuals who are personally liable under section 110(c) of the
Mine Act
6. imminent danger
7. acts of discrimination under section 105(c) of the Mine Act
8. extraordinarily high negligence or gravity or other unique
aggravating circumstances
Special assessments are individually determined by a staff of mine
safety and health specialists (assessors) who apply each of the six
assessment criteria to the facts and circumstances surrounding each
violation. MSHA has published guidelines that the assessors follow. The
special assessment review includes an analysis of the violation and
related documents (Special Assessment Review Form, conference notes,
inspector's notes, accident report, sketches/photographs, and relevant
portions of plans).
Question 2. Do you believe that the delay between the assessment of
an MSHA fine and its collection encourages operators to be non-
compliant with the act?
And, are there any suggestions you might have about ways to shorten
the time between assessment and collection and still preserve the
parties' right to due process?
Answer 2. This question assumes lengthy delays between the date
MSHA proposes an assessment and the date the penalty is paid. Most
operators pay their civil penalties voluntarily and within a reasonable
amount of time. Over the last 5 years, 94 percent of the civil
penalties MSHA assessed were uncontested. On average, the payments for
uncontested cases are received within 2 months after the violator
receives the penalty assessment. Contested citations can take many
months to litigate and a number of penalties go unpaid.
MSHA experienced problems with referring delinquent civil penalties
to the Treasury Department after deploying a new computer system and
operating procedures in 2003. This resulted in the manual referral of
only a very few unpaid penalties to Treasury for collection in 2004 and
2005. The Agency has resumed electronic referrals of delinquent debt to
Treasury. The first electronic referral since 2003 was sent to Treasury
on March 17, 2006 and the backlog of Treasury referrals was virtually
eliminated by the end of fiscal year 2006. We have implemented new
procedures to expedite ongoing delinquent debt referrals to Treasury so
that all available delinquencies are referred within the timeframes
stipulated in the Debt Collection Improvement Act of 1996.
To help streamline the civil penalty payment process, MSHA plans to
develop an electronic payment/contest option for use by mine operators.
This approach will reduce the overall time for payments to reach MSHA
and also shorten the time to process contested cases.
Question 3. Could you give us a sense of the percentage of mines
that currently use contract or co-op rescue teams; and what problems
might be faced by small mines in fielding their own rescue teams?
Answer 3. There are approximately 646 underground coal mines. There
are approximately 140 coal mine rescue teams. Eighteen of these are
contract teams, or about 13 percent. Approximately 97 underground coal
mines use contract or co-op rescue teams. This equates to approximately
15 percent of all underground coal mines. Small mines, mines with fewer
than 20 employees, are hampered by the number of personnel available
and the economic cost of supplying equipment to support these teams.
Such equipment includes breathing apparatus, spare parts, testing and
maintenance supplies, cap lamps, personal safety equipment, gas
detectors, communications equipment, a compressor, medical grade
oxygen, and CO2 scrubber chemicals. Team members must attend monthly or
bi-monthly training sessions, which take them away from their normal
mining duties.
MSHA is implementing requirements in the MINER Act related to mine
rescue teams.
Question 4. How many hours of training are required to become a
qualified rescue team member, and how long does that typically take
someone to complete? Can you describe the physical demands of this
service?
Answer 4. Each mine rescue team member must have a minimum of 20
hours of initial training. This initial training typically takes 3-4
days to complete. Among other things, the training develops familiarity
with the breathing apparatus they will use, and the actual use of the
breathing apparatus for several hours. Besides the initial training,
each team member must participate in 40 hours of refresher (hands-on)
training annually. The physical demands required for mine rescue
personnel are severe. The breathing apparatus alone weighs
approximately 34 pounds. Other equipment that must be carried includes
gas monitors, communications devices, and personal protection
equipment. The physical requirements for mine rescue team members are
listed in 30 CFR 49.7. Each team member must pass a mine rescue
physical exam annually. In actual operations, team members can
experience extreme temperatures, potential heat stress, psychological
stress, must often carry heavy weights, and often travel long distances
on foot or by crawling through water and mud.
Question 5. Is MSHA conducting more or fewer inspections than 5
years ago? Is the agency completing all the inspections it's required
to do under the Mine Act?
Answer 5. In both metal/nonmetal and coal enforcement, MSHA is
conducting more inspections than 5 years ago, and has increased its
mandated inspection completion rate since 2000.
Metal and nonmetal (MNM). In fiscal year 2005, MNM completed 16,123
required inspections, versus 13,252 in fiscal year 2000.
In fiscal year 2005, MNM completed 87.7 percent of its required
inspections; in fiscal year 2000, MNM completed 73.7 percent of its
required inspections.
Coal Mine Safety and Health (CMS&H). In 2005, CMS&H conducted 5,053
mandatory inspections, versus 4,947 in 2000. Also in 2005, an
additional 155 regular health and safety inspections above the
statutory requirements of the Mine Act, were completed, compared to 144
in 2000.
CMS&H has improved its required regulatory inspection completion
rate from 98.3 percent in 2000 to 99.6 percent in 2005.
Question 6. A great deal of the criticism of your agency concerns
the funding that has been kept relatively flat during the last several
years and the number of employees has declined. Statistically, the
number of mines and miners under your authority has actually declined
during those same years. But I have noted that the number hours MSHA
inspectors spend onsite inspecting coal mines has not decreased, in
fact it increased significantly at the early part of this decade and
has remained steady. How can MSHA use it resources to accomplish its
mission more effectively?
Answer 6. MSHA is constantly searching for ways to reduce
inefficient and duplicative processes that draw resources away from its
core mission of protecting the health and safety of miners. MSHA has
reduced overhead costs and administrative and support staff to provide
additional resources to its front-line staff. Additionally, MSHA is
evaluating all non-enforcement positions as they become vacant and
approving replacements only if there is no suitable alternative. The
resources made available from vacated positions determined non-mission
critical are used to support other key functions.
For example, MSHA reorganized travel areas for inspectors by
assigning them to inspect mines all within a specific geographic area.
This maximized their onsite time while eliminating excess travel time
to mine sites. Also, inspectors have been instructed to issue citations
and terminate them if violations are immediately abated before the
inspection is closed out. This allows mine companies to abate the
hazardous condition immediately, and avoids having the inspector make a
return trip to the mine at a later date to terminate the citation. All
inspectors have the latest laptop computer technology, which allows
them to download mine histories and mine profiles long before they
travel to the mine site. They no longer have to check the mine files in
the field office; they may do so at any time while they are traveling.
MSHA will use funds included in the fiscal year 2006 Emergency
Supplemental Appropriations Act for Defense, Global War on Terror, and
Hurricane Recovery for increased enforcement personnel and equipment.
Question 7. What are a miner's options under the Mine Act when
encountering unsafe conditions?
Answer 7. The miner can complain about the unsafe condition or
practice to company officials, supervisors, or to the miners'
representative. Complaining about a hazardous condition is an activity
protected by Section 105(c) of the Mine Act. If the mine operator
retaliates in response to the safety complaint, the miner has the
option of making a discrimination complaint.
The miner can complain to MSHA directly about the hazardous
conditions. MSHA has many avenues to receive such complaints, including
an anonymous ``hotline'' number, which will be followed up by an
inspection. In addition, miners can make safety complaints to an
inspector during or before an inspection either directly or through
their walk-around representative. If a miner believes these conditions
violate the Mine Act or its standards or present an imminent danger,
they can make a written complaint under section 103(g) of the Mine Act,
and an immediate inspection of the reported conditions will be made
under section 103 (g). The miner's identity will not be disclosed to
the mine operator, but the nature of the complaint will be provided.
This type of complaint is also an activity protected by Section 105 (c)
of the Mine Act.
The miner can refuse to work in a hazardous condition that he
reasonably believes may present a hazard to himself or others. The
miner will be required to make reasonable efforts to communicate the
reason for the work refusal to his employer before doing so. Such work
refusal is also considered by the Secretary and the reviewing Courts to
be an activity protected by Section 105(c) of the Mine Act so long as
the miner had an objective good faith belief that the condition posed a
safety hazard to himself or others.
Discrimination Complaint Process. A miner has 60 days to file a
complaint of discrimination with the Secretary of Labor. The Secretary
has 120 days to investigate the complaint and decide if it has
sufficient merit to be pursued. If the Secretary finds that there has
been retaliation for the making of a complaint or a work refusal, the
Secretary can bring the discrimination case on the miner's behalf and
can seek a civil penalty. If the Secretary does not believe that there
was a violation, the miner has 30 days to proceed on his own before the
independent Mine Safety and Health Review Commission. The
discrimination complaint process allows the Secretary of Labor to seek
temporary reinstatement of a miner who has lost his job if he engaged
in protected activity. The temporary reinstatement lasts until the
investigation is completed including the course of litigation should
the Secretary determine the case has merit after investigation.
Question 8. Explain MSHA's Accident Investigation Process
especially as to rights of families and limitations on family rights.
Answer 8. MSHA's accident investigation procedures are fully set
out in the agency Accident Investigation Handbook, which is available
on the Web site in the FOIA Reading room. There are two procedures: one
for normal accident investigations and another for major accident
investigations. The fundamental steps in each are the same, but the
time expended and the application of resources is much greater in a
major accident investigation. Usually the primary tool of an accident
investigation is a thorough review of the on-scene accident site. In
addition, relevant materials involved in the accident, such as broken
cables, brakes etc., may be sent for additional laboratory analysis.
The mine operator and the representative of miners, if there is one,
are full participants in this civil process designed to find out the
causes and contributing factors in the accident so that similar
accidents may be prevented in the future and to determine if any
violations of Federal safety standards were involved in or contributed
to the accident. The process also includes a statement taken of
relevant witnesses. Prior to a recent change in policy, the operator
and the miner's representative would be involved in that questioning
process unless their participation was deemed harmful to that process
or unless the participation of only the mine operator would create an
appearance of unfairness. At Sago and Aracoma Alma, all of the
questioning has been done by and in the presence of government
investigators alone. MSHA has found that the public hearing process
inhibits testimony as many witnesses decline to testify or do not
testify fully. That is why we tried to the greatest extent possible to
have completed our interviews before the public hearing takes place.
Consistent with past practice, general investigatory techniques, and
fairness, the investigators do permit each witness to be accompanied by
a personal representative of their choosing.
Families of deceased or injured miners have not been participants
in accident investigations under the Mine Act or, to our knowledge, to
most industrial accident investigations. The participation of family
representatives presents an additional element of emotion and cross-
purposes that can make it more difficult for the miner being
interviewed to give a full and accurate statement to investigators. In
addition, potential safety issues and possible violations are going to
be identified during the investigatory interviews. Premature discussion
of those issues greatly impairs additional investigation and also
raises issues, which have not yet been fully explored, to premature
prominence and indeed can delay and impede finding the real causes of
the accident. In order to perform its investigation responsibilities
under the Mine Act effectively and accurately, MSHA evaluates all
interviews taken, physical items obtained, tests performed, and mine
observations made before releasing any conclusions about the causes or
contributing causes of an accident to the families and the public.
As part of its investigation process, MSHA does keep families
informed of the investigation progress and listens to any comments and
answers any questions family members may have. MSHA had meetings with
the families of the Sago mine victims on March 9 and April 13. The
families were given early access to the transcripts at the private
informational meeting held on Thursday April 13. The witness statements
were made part of the public record on May 2-4, 2006, at the joint
public hearing. The families had a limited participatory role in being
able to pose questions to the Chair to be asked of witnesses at the
hearing. When the investigation is complete, MSHA will provide each
family a personal copy of accident investigation materials.
Please be assured that MSHA and the State of West Virginia are
conducting a thorough and professional investigation into the Sago Mine
Accident that includes the public hearing held on May 2-4, 2006.
Prevention of such tragedies is our highest priority and the goal of
the dedicated professionals in the agency. MSHA is implementing the
requirement in the MINER Act concerning the establishment of family
liaisons.
Question 9. It has been mentioned here today that several notices
of proposed rulemaking were withdrawn by the Mine Safety and Health
Administration over the past 6 years. Can you explain what these were
and why they were withdrawn?
Answer 9. MSHA withdrew two proposed rules during the past 6 years:
(1) Flame-Resistant Conveyor Belts
This proposed rule was published in 1992 and was initially
withdrawn from the regulatory agenda in March of 1994. It was
reinstated on the regulatory agenda in the fall of 1994 and removed a
second time in 2002. Improved technology associated with atmospheric
monitoring systems and fire suppression systems has greatly reduced the
need for increasing the flame-resistance of conveyor belt material
beyond the current requirements for flame-retardants. Further, in the
last 25 years all miners have been able to escape from fires that
started in the conveyor belt entry. We are implementing the provision
in the MINER Act related to flame-resistant conveyor belts.
(2) Air Quality, Chemical Substances, and Respiratory Protection
This proposed omnibus rule was published in 1989 and withdrawn from
the regulatory agenda on September 26, 2002. The proposed rule had not
been actively worked on for many years prior to the decision to
withdraw it. The decision to withdraw this proposed rule was based on
adverse case law, the staleness of the rulemaking record, and the
quantity of resources that would have to be redirected from higher
priority rulemakings, including diesel particulate matter, respirable
coal mine dust, and asbestos, if the agency were to restart the
proposed rule process (which would be necessary). While the agency
withdrawal was challenged by the UMWA in Federal court on procedural
grounds, the final statement of withdrawal was not challenged and
therefore went into effect.
questions of senator kennedy
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, belt flammability, and investigation and hearing
procedures. MSHA is charged with protecting the health and safety of
the Nation's miners and the industry remains extremely dangerous, with
30 to 40 miners killed each year. For the years 2006, 2007, and 2008,
please list: (1) the mine safety and health standards for which MSHA
expects to issue a notice of proposed rulemaking; and (2) the mine
safety and health standards for which MSHA expects to issue a final
rule. Also, please indicate which of these standards is economically
significant (i.e., having a cost impact of more than $100 million a
year).
Answer 1. The following chart indicates MSHA's projected
rulemakings for 2006-2008. None of these standards is projected to be
economically significant. In addition to the anticipated rules in the
chart, several new rulemakings are typically added each year in
response to newly identified problems, emerging technologies, etc.
Thus, the actual number of proposed and final rules may increase in
2007 and 2008.
Question 2. For the period of 1990-2005, please provide a list of
final safety and health standards issued by MSHA, and indicate the year
of issuance and whether the rule was designated as an economically
significant rule.
Answer 2. The chart below provides a list of MSHA's final safety
and health rules for the period 1990-2005. None of the rules was
economically significant. (DFR stands for Direct Final Rule; TA stands
for Technical Amendment; IFR stands for Interim Final Rule; ETS stands
for Emergency Temporary Standard.)
Question 3. The Alma Mine fire has focused attention on the use of
conveyor belt air to ventilate working areas of mines. In 2004, MSHA
issued a regulation permitting the widespread use of belt air to
ventilate working areas of the mine. West Virginia Governor Manchin has
called for a prohibition on this practice. Do you intend to rescind the
rule that permits the use of belt air in mine ventilation plans? When?
If not, why not?
Answer 3. The investigation at the Alma No. 1 mine is ongoing, and
we cannot be certain of its complete findings. However, from our
preliminary investigation it is clear that the use of belt air as
specified in Federal safety standards did not contribute to the
severity of the accident.
The Aracoma Alma No. 1 belt air petition for modification was
approved by the Agency in 2000 and contained routine requirements. The
final belt air rule actually increased miner protection at Alma No.1 by
including various requirements that were not included in the granted
petition. For example, all sensors used must be listed by a Nationally
Recognized Testing Laboratory, such as Underwriter's Lab; the trunk
lines for the communication system and the AMS must be installed in
separate entries; CO sensors must be installed in the intake
escapeways; point-feeds must be monitored; and all outby (away from
fire) sensors must automatically notify sections of alarms.
The Belt Air Standard was adopted after years of experience using
belt air via petitions for modifications in many underground mines.
Given that history and what we know of the Alma Mine Fire, there is no
basis to conclude that the final rule needs to be rescinded or in some
way restricted. The safe use of belt air has been established over more
than 25 years of experience granting petitions for modification
allowing mines to use belt air safely to ventilate places where miners
work as long as appropriate safety requirements are followed. The
rulemaking itself started in 1983 and was finalized in 2004. There was
appropriate notice and comment throughout the history of this
rulemaking. The United Mine Workers of America contested the safety of
the belt air rule in International Union, United Mine Workers of
America v. Mine Safety and Health Administration, 407 F.3d 1250 (D.C.
Cir. 2005). The decision by the U.S. Court of Appeals for the D.C.
Circuit affirmed our position that MSHA did not violate section
101(a)(9) of the Mine Act, which states that ``No mandatory health or
safety standard promulgated under this title [Title 30] shall reduce
the protection afforded miners by an existing mandatory health or
safety standard.''
The use of belt air helps ventilate places where miners work,
reducing dangerous methane concentrations. There are also certain
ground control advantages realized by being able to limit the number of
development entries. These include reducing the probability of roof
falls and rib outbursts. A recent analysis of accident and injury data
under the prior case-by-case-approvals and MSHA's rule reveals that
there has never been a fatality attributed to fire or air contaminants
being carried by belt air to the face of a coal mine.
Question 4. MSHA under President Bush withdrew a proposed rule on
flame-resistant conveyor belts that followed years of research on the
belt flammability and the spread of belt fires. As the Alma Mine fire
is believed to have started on its conveyor belt, does MSHA plan on
reinstituting rulemaking on flame-resistant conveyor belts? What is
MSHA's timetable for such a rule?
Answer 4. This proposed rule was published in 1992 and was
initially withdrawn from the regulatory agenda in March of 1994. It was
reinstated on the regulatory agenda in the fall of 1994 and removed a
second time in 2002. Improved technology associated with atmospheric
monitoring systems and fire suppression systems has greatly reduced the
need for increasing the flame-resistance of conveyor belt material
beyond the current requirements for flame-retardants. Further, in the
last 25 years all miners have been able to escape from fires that
started in the conveyor belt entry. We are implementing the provision
in the MINER Act related to flame-resistant conveyor belts.
As noted earlier, our preliminary investigation of the Alma mine
accident has found that the use of belt air as specified in Federal
safety standards did not cause or contribute to the severity of the
accident. Unless specific findings of the Alma Mine accident
investigation or other investigatory findings indicate that belt
flammability either caused or increased the severity of the accident,
it is unlikely that the agency would elect to change the Belt Air rule.
However, please note that even with flame-resistant belting, fires can
still spread along the belt line. For example, fires can break out at
transfer points along the belt line, at drives and take-ups, from belt
misalignment where friction is created, and from accumulation of
combustible material along the belt line. It is critically important to
provide an atmospheric monitoring system along the belt line, as
required both by the Belt Air rule and by petitions to use belt air
granted before the Belt Air rule to provide early warning of these
fires so they can be adequately controlled. It is also important for
the mine operator to maintain adequate housekeeping procedures to
reduce accumulation of combustible material along the belt line.
Question 5. At a February 4, 2003 public hearing in Lexington,
Kentucky on MSHA's Emergency Temporary Standard on emergency evacuation
procedures issued in response to the September 2001 Jim Walter
Resources disaster, an Agency representative remarked, ``MSHA gave this
rule its best . . . We feel like this is a very strong rule. One of the
strongest the agency has ever produced.'' Is the new emergency
regulation regarding hands-on evacuation training and the use of
directional lifelines going to be MSHA's only new rulemaking to address
emergency evacuation procedures or, in light of the Sago and Alma Mine
disasters, and recent evacuation problems at the Shoal Creek Mine in
Alabama, does MSHA plan to initiate new additional rulemaking on
evacuation procedures? If so, will MSHA revisit concerns raised during
the public comment period in 2003?
Answer 5. In addition to items currently on the regulatory agenda,
MSHA is implementing the requirement in the MINER Act that each
underground coal mine have an approved mine emergency response plan.
The recent mine accidents revealed several inadequacies in the
organization of the response of mine operators during a mine emergency.
An approved plan would address the need for mine operators and other
responders to consistently respond to emergencies in a logical and
well-thought-out way, in a climate where tensions are high and pressure
for immediate action is great. By dealing with topics such as lines of
authority, internal and external communication, mine rescue team
interaction, etc., MSHA expects that rescues will be improved and lives
saved. In undertaking this new initiative, MSHA will pay particular
attention to the findings of the Sago, Alma, and Shoal Creek accident
investigations and to the concerns raised in public comments on the
2002 ETS following the Jim Walter Resources disaster. The approved plan
would also address the specific requirements in the MINER Act.
Question 6. Diesel fume exposure greatly increases the risk of
heart disease, lung cancer and other serious illnesses. MSHA has
suggested that it may delay full implementation of a final regulation
limiting miners' exposure to diesel fumes, which was scheduled to take
effect in January 2006, for as much as another 5 years. Does MSHA plan
to require full compliance with its regulation on diesel particulate
matter? What date will be set as the deadline for full compliance?
Answer 6. On May 18, 2006, MSHA published a final rule, ``Diesel
Particulate Matter Exposure of Underground Metal and Nonmetal Miners.''
The final rule phased in the DPM final limit of 160 micrograms of total
carbon (TC) per cubic meter of air (160TC ug/m\3\) over a 2-
year period, based on technological feasibility information in the
rulemaking record. On May 20, 2006, the initial final limit of 308
micrograms of elemental carbon (EC) (308EC ug/m\3\) became
effective. On January 20, 2007, the DPM limit will be reduced to a TC
limit of 350TC ug/m3. The final limit of 160TC
ug/m\3\ will become effective on May 20, 2008. Mine operators must
continue to use engineering and administrative controls, supplemented
by respiratory protection when needed, to reduce miners' exposures to
the prescribed limits. The DPM final rule includes new requirements for
medical evaluation of miners who must wear respirators and the transfer
of miners with no loss of pay who are medically unable to wear
respirators. As with the existing DPM limit, MSHA will enforce the
final limits as permissible exposure limits (PEL).
Question 7. The Sago and Alma Mine tragedies raised concerns about
the procedures used in the investigation of mine accidents. The Mine
Safety Act and MSHA regulations do not provide for the participation of
victims' family members in mine accident investigations. Will MSHA
institute policies or rulemakings to ensure the full participation from
the outset of victim family members in mine safety investigation? Will
MSHA propose a rule to ensure that witnesses feel free to speak
candidly to investigators? What will MSHA do to protect witnesses to
accident investigations and miners who report safety hazards from
retaliation?
Answer 7. MSHA and the State of West Virginia are conducting a
thorough and professional investigation that includes the public
hearing in Buckhannon, West Virginia, held on May 2-4, 2006. We
recognize that the families, the mining community, and the public need
to know the progress and direction of the Sago Mine Accident
Investigation and the public hearing helped to fulfill that purpose. To
ensure that all parties have their participation rights protected in
the course of this investigation, the Department of Labor took the
extraordinary step of securing an injunction to permit the United Mine
Workers of America (UMWA) to participate in the underground, physical
inspection of the mine after the UMWA recently filed as a
representative of miners on behalf of two anonymous miners at the Sago
Mine.
MSHA and the State are interviewing witnesses in a closed-door
interview setting. Experience has shown that this interview process
produces the best possible record. Conducting interviews in private,
rather than in a public hearing, has served the investigative process
well throughout the agency's history. Indeed, the only time MSHA
invoked its public hearing authority was in a 1999 accident
investigation involving a Kaiser Alumina Plant in Louisiana. MSHA found
that the public hearing process inhibited testimony as many management
witnesses declined to testify, citing their 5th Amendment right to
avoid self-incrimination.
That is why we feel it is important to complete our interviews
before the public hearing takes place.
Interview participants are contacted prior to the interviews and
are apprised of their rights to have a confidential interview (which
would treat the miner as a government informant and the government
would not disclose his name or information until required by law to do
so), or participate in the standard closed interview and their right to
be accompanied by a personal representative. The company is not
participating in the interviews.
The interviews are conducted in a private closed session, but are
not kept secret indefinitely. At the conclusion of all the interviews,
transcripts of the interviews will be made public and copies will be
delivered to the families. We released the transcripts of the Sago
accident investigation interviews before the public hearing, which
began on May 2. In addition, the MSHA investigators have met and will
continue to meet with the families to explain the status of the
investigation and what will happen next in the investigation process.
MSHA also solicits any information the families may have that could
assist the investigators.
Family members do not participate in the onsite investigation or
the witness interviews. The State agency, the company and
representative of miners at the mine do participate in the onsite
investigation but the Federal and State investigators have conducted
questioning alone. The goal of the accident investigation is to
determine the causes and contributing factors to the accident and to
determine what violations contributed to the cause or severity of the
accident. This is important and vital work, and it is sensitive work.
We believe the families and the rest of the mining community will
benefit from the best professional accident investigation report we can
produce.
MSHA has a cadre of professional accident investigators who follow
the agency Accident Investigation Handbook in the conduct of accident
investigations. We have several avenues to assemble information. We
often find that the on-scene findings greatly assist in determining
which witness accounts are accurate. Any person who wishes may request
to make a confidential statement. If MSHA determines that a
confidential statement is appropriate, that person will be interviewed
solely by MSHA at an off-site location such as his or her home and the
statement will not be released with the other statements at the close
of the investigation. Any person who believes he or she has been
discharged or discriminated against because he or she cooperated with
an MSHA investigation of any type is entitled to file a complaint of
discrimination with the Secretary within 90 days of the offending
conduct under Section 105(c) of the Act.
Question 8. The Sago Mine inspection reports posted on MSHA's Web
site reveal that in the majority of instances, the inspector determined
that only one person was endangered by a safety violation. Isn't this a
narrow interpretation of the breadth of the danger caused by these
violations? Doesn't this narrow interpretation dramatically reduce the
fines assessed against coal operators? Don't violations for
obstructions to escape paths and the accumulation of combustible
materials necessarily affect more than one miner?
Answer 8. MSHA, as part of every major accident investigation,
conducts an internal review to determine if agency performance was up
to par and looks at ways to improve performance. The internal review
will examine that issue and present its findings and it would be
inappropriate to comment specifically until the investigation is
completed. It can be said that determinations of the number of miners
most likely to be affected is a subjective evaluation of the issuing
inspector based on the totality of the circumstances present for that
violation. Review of the Sago Mine's past accidents indicates a large
number of slip and fall hazards attributed to excess accumulations on
the mine floor and such accidents would typically most likely involve
one person. Again, the answer to your question will be a specific area
of inquiry in the Sago Internal Review.
Question 9. MSHA's penalty structure factors the ability of a
company to remain in business into its fine assessments. Isn't the
purpose of the Mine Act and MSHA Regulations, first and foremost, to
protect the health and safety of miners? Shouldn't business concerns be
wholly separate from the standards for safety in our mines? Isn't the
effect of this policy to allow unsafe mines to remain in operation
because of financial hardship? It seems clear that the assessment at
Sago of fines that were less than one-thousandth of the company's
yearly profits did not provide a disincentive for the company to
continue violating the Mine Act. If business interests are incorporated
into the safety standards, shouldn't MSHA also factor into the penalty
structure the level of penalty necessary to influence the behavior of a
financially healthy mine?
Answer 9. The Mine Act provides the six statutory criteria for
penalty assessments, one of which is the ability of the operator to
continue in business. MSHA has never taken the position that one
criterion--such as the ability to pay and continue in business--is more
important than consideration of the other five criteria. Sago did not
receive any penalty reductions based on ability to continue in
business. In fact, MSHA procedural rules assume that the operator can
pay the proposed civil penalty and place the burden on the operator to
raise the issue of ability to continue in business and to present
evidence of that claim for MSHA to review. MSHA developed and on
September 8, 2006 issued a proposed rule to update and improve the
civil penalty assessment process. The proposal implements civil penalty
provisions in the MINER Act, increases penalties, and streamlines
assessment procedures.
Question 10. MSHA fined the Jim Walter Resources (JWR) Mine in
Alabama $435,000 for infractions associated with the explosion and fire
that killed 13 miners but an administrative judge reduced these fines
to $3,000. Are you concerned about the ability and frequency with which
the Review Commission (Commission) reduces MSHA fines? Do you believe
that the Assistant Secretary for Mine Safety should have the authority
to set these fines and make them stick?
Answer 10. We were concerned about the decision in this case, and
where legally possible have appealed the legal rulings. We recently
received a decision on appeal remanding the case back to the
Administrative Law Judge for further proceedings. We hope to prevail on
those issues, but if necessary, may take an additional appeal after the
Administrative Law Judge issues his additional rulings.
The Agency vigorously pursued its case against JWR. We alleged that
certain violations existed and we sought an order imposing a civil
penalty. The law entitles the operator to his day in court and to
demand the Secretary prove her allegations. In the JWR case, the ALJ
held that we did not meet our burden and dismissed the violations and
with them the proposed penalty. The case was difficult to establish in
that MSHA's burden was to show that the conditions we found after the
investigation, in fact, existed prior to the first of two explosions
and were not impacted by the eventual flooding of the mine to
extinguish any potential fire. The ALJ held that we did not meet our
burden of showing that volative conditions pre-existed the first
explosion. Again, where legally possible, this decision has been
appealed.
Question 11. The Mine 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.'' MSHA regulations permit
rescue teams to be within 2 hours travel time and to be secured by
contract. Does MSHA plan to require onsite mine rescue teams?
Answer 11. MSHA is implementing the requirements for mine rescue
teams in the Miner Act.
Question 12. For the calendar year 2001 through the present, please
provide copies of all original inspection reports, including any notes,
draft inspection reports, or amendments to the report that reflect
changes to or reconsideration of the inspectors assessments for the
Alma Aracoma Mine.
Answer 12. We are providing CD's of the requested information for
calendar years 2003 through 2005, and including the period January 9 to
February 24, 2006. Information from 2001 and 2002 is located in the
National Archives. We will transmit this information as soon as it is
available.
Question 13. Australia and some U.S. metal and non-metal mines use
Personal Emergency Devices (PEDs) that allow people outside the mine to
send messages to miners deep underground. Even though these devices
helped save the lives of 46 miners trapped by fire at the Willow Creek
Mine in Utah in 1998, only a handful of U.S. mines use them. Would you
recommend that we require these devices in America's mines?
Answer 13. The PED system could potentially improve the state of
communications currently available underground. In some cases, however,
we believe that there are technological improvements on the near-term
horizon that would provide greater benefits in an emergency. For
example, MSHA is currently investigating and field testing several two-
way wireless communication technologies. We anticipate that state-of-
the-art systems will soon be developed and available for America's
mines, expanding beyond but still inclusive of the PED technology. MSHA
is also implementing requirements in the MINER Act related to
communication systems.
MSHA has investigated PED installations in both the U.S. and
Australia, and identified limitations to the potential performance of
the system in an emergency. Based on these findings, we believe that
making use of this specific device mandatory would be problematic at
this time. The system's performance is predicated on the installation
of a large loop antenna. For the system to operate during an emergency,
the loop antenna must be installed on the surface. Some mines may have
too much overburden or not own the property rights, making surface
installation impractical. If the loop antenna is installed underground,
it most likely would be damaged in a fire or explosion, rendering the
system inoperable. Our evaluation of the PED has also revealed
performance concerns regarding ``shadow zones.'' We have found that
there are certain places in underground mines where there is no signal
received by the PED. We found that the system does not receive a signal
inside of transport vehicles, near large metal objects or in remote
areas of the mine. Additionally, the PED is a one-way paging system
meaning that there is no way the message sender can receive
confirmation that the message has been received.
Question 14. Some mines use tracking systems where each miner wears
a device that sends signals to computerized beacons placed throughout
the mine. Such a device is reported to have saved the life of a Polish
miner who was recently trapped for over 100 hours. Do you think we
should require the use of such devices in mines?
Answer 14. There is only one such device that is currently MSHA-
approved--meaning safe to bring into a mine--and that is the Mine Site
Technologies Tracker IV Tracking System. In Australia, the system has
successfully been used for personnel and vehicle monitoring in a number
of metal mines, and it has just been installed into one underground
coal mine. There are no current installations of the Tracker IV system
at underground mines in the United States. If proposed for use in
emergencies, the Tracker IV and the majority of other commercially
available tracking systems have significant limitations regarding
reliability and range that should be considered carefully prior to
mandating the use of such technology. The operation of these devices
depends on the installation of a wire antenna underground to provide
the signal to the mine surface. That wire backbone would likely be
compromised in a fire or explosion rendering tracking of the miners
after such an event impossible.
In addition, these tracking systems depend on the installation of
readers (also called ``beacons'') underground. The range of these
beacons is 500 ft. or less, and they are typically spaced in the mine
at 3000 ft. intervals. Miners wear individual transmitters, so their
position is known when their transmitter passes beacon A, but then not
again until it passes beacon B. Therefore, tracking of personnel is
limited to identifying their location within the ``zone'' between two
beacons. If the system is disrupted in an emergency and personnel need
to be located, this limitation would create a potential search window
of over \1/2\ mile. The system can only register which beacon last
recorded the wearer of the device. It could not precisely locate that
person. As currently designed, the only benefit of the system in an
emergency is that it could provide the last known recorded location of
a miner prior to any fire or explosion.
Because of these limitations, MSHA does not feel that mandating the
Tracker IV is advisable; there are other real-time tracking
technologies we are currently evaluating that can locate based on
signal strength, and could provide a far closer approximation of a
trapped miner's location. MSHA is also implementing requirements in the
MINER Act related to tracking technology.
Question 15. At the hearing, you expressed concern about the
effectiveness of the communications and tracking technology currently
available. In light of the fact that the failure to use these
technologies poses serious obstacles to the safe rescue of miners in
the case of an accident, do you think that we should require the use of
such devices in mines, even if they are not 100 percent effective?
Answer 15. MSHA does not believe that mandating the use of these
products is the right approach to improving mine emergency response
because of the aforementioned limitations. MSHA is currently working
with manufacturers of other more promising and state-of-the-art
emergency communication and tracking technologies to evaluate their
capabilities and to expedite those proven to function underground into
the mining industry. To that end, MSHA solicited proposals for
solutions to the emergency communication and tracking technology
deficiency in the mining industry and in response to that solicitation
has received more than 80 proposals. We have evaluated those proposals
and selected 7 that represented the most advanced technologies and have
initiated underground field testing of these systems. The selected
systems have the capability of providing two-way voice communications
and/or precision tracking capability. These systems do not rely on a
wire installed underground for their operation. Upon completion of the
field testing, MSHA will assist the manufacturers in obtaining MSHA
approval for such systems, as appropriate. MSHA is implementing MINER
Act requirements related to these technologies.
Question 16. Do you have a process in place to regularly confer
with mine safety regulators in other countries, particularly in Canada
and Australia, about their health and safety standards and
technological innovations?
Answer 16. MSHA regularly maintains contact with mine safety and
health professionals worldwide, primarily by participation on voluntary
consensus standard committees, interactions at conferences, and though
affiliations with professional technical organizations. Maintaining
this network of professional contacts is one important way that MSHA's
Technical Support both monitors technological changes in mining and
mining equipment and learns of innovations that may have applications
in the mining sector. Activities that have had the most benefit in this
regard include:
MSHA Technical Support personnel are active in
international and domestic professional societies, such as AIHA, ASA,
IEEE, ISRP, NFPA, and SME; in conformance with the NTTA Act, MSHA also
participates on committees to develop voluntary consensus standards,
including ANSI, ASME, ASTM and others.
MSHA engineers are currently evaluating the International
Electrotechnical Commission's (IEC) standards for Electrical Apparatus
for Explosive Gas Atmospheres to determine whether they are (or
modifiable to be) equivalent to MSHA product approval requirements. The
IEC is a worldwide organization for standardization comprising all
national electrotechnical committees.
Technical Support engineers also collaborated with an
Australian manufacturer who converted a jet engine that operated on
diesel fuel for use to extinguish mine fires. With the onsite
assistance of the Australian team, MSHA used this technology
successfully to help recover an underground U.S. coal miner during a
mine fire.
MSHA actively participates in the quadrennial
International Mine Ventilation Conference held in various countries
including Canada and Australia. MSHA submits technical papers and
provides conference-planning guidance.
MSHA also actively participates in the biennial
International Mine Rescue Conference that has been held in different
countries including Poland, South Africa and Australia. MSHA recently
sent technical experts in response to requests for mine rescue and
recovery aid and assistance by the Chilean and Mexican governments.
MSHA attends and participates in technical conferences
where the international mining community regularly discusses issues
regarding ground control, longwall mining, health concerns, and other
mining topics.
MSHA personnel have hosted many international delegations
involved in mining from China, Australia, the United Kingdom, and many
others, and have assisted in providing specialized training.
Regulations, policies, procedures, and technical ideas are discussed
during these meetings.
Question 17. The Sago Mine had an injury rate nearly three times
the national average and was cited for over 200 safety violations in
2005, yet 89 of these fines were for the minimum amount of $60, the
fines averaged only $156, and the largest paid fine was $440. During
the first 5 years of the Bush Administration, MSHA has imposed the
maximum fine less than one-third as often as during the last 5 years of
the Clinton Administration. Does MSHA support mandatory minimum
penalties for egregious and repeat violations, like those in Senator
Specter's proposed legislation? Does MSHA support mandatory minimum
penalties for violations that result in death or serious bodily injury?
Using the Specter bill as a guideline, how would MSHA recommend these
fines be set?
Answer 17. MSHA supports higher penalties. On September 8, 2006,
MSHA issued a proposed rule that will make appropriate revisions to the
penalty schedule in 30 CFR Part 100 and implement penalty provisions in
the MINER Act. MSHA believes that these actions will result in
appropriate civil penalties for all violations, including flagrant
violations.
Where appropriate, MSHA would invoke the provision in the MINER
Act, which allows the Secretary to close a mine when the operator fails
to pay a civil penalty within 30 days of the date on which the penalty
became a final order of the Federal Mine Safety and Health Review
Commission until that civil penalty has been paid.
MSHA wishes to clarify the status of the fines levied against the
Sago Mine for violations cited in calendar year 2005. MSHA proposed
civil penalties totaling over $130,000 for these violations, an average
of $657 each. The fines ranged from a low of $60 for violations that
automatically qualify for the minimum single penalty to a high of
$9,600.
There are several reasons why the frequency with which MSHA
proposes the maximum civil penalty has declined. The factor
contributing most importantly to the decline is the concurrent
reduction in fatal accidents.
The maximum civil penalty allowed is generally reserved for the
most egregious violations that often are cited as a result of fatal
accidents. The number of fatalities declined 28 percent between the 5-
year period ending in 2000 and the 5-year period ending in 2005.
Question 18. For each calendar year 1990-2005, for coal and MINM
enforcement, please provide:
The number of citations that were significant and
substantial, the total initial penalties assessed for significant and
substantial citations, the total final penalties assessed for
significant and substantial citations, and the total amount of
penalties collected for these significant and substantial violations.
Answer. See Table A below.
The number of citations that were for non-significant and
substantial violations, the total initial penalties assessed for these
citations, the total final penalties assessed for these citations, and
the total amount of penalties collected for these citations.
Answer. See Table A below.
The number of incidents resulting in one or more coal or
M/NM fatalities, the number of coal and M/NM fatalities, the total
initial penalties assessed for citations issued as a result of
investigations into these fatalities, the total final penalties
assessed for these citations, and the total amount of penalties
collected for these citations.
Answer. See Table B below.
The number of orders of withdrawal issued by Coal and M/
NM.
Answer. See Table C below.
The number of violations resulting from an unwarrantable
failure issued by Coal and M/NM.
Answer. See Table C below.
The number of cases referred to the Department of Justice
for criminal prosecution under the Mine Safety and Health Act, and the
number of these cases subsequently prosecuted by the Department of
Justice.
Answer. See Table D below.
The number of discrimination complaints filed under
section 105(c), the number of these complaints investigated by MSHA,
and the number of such complaints where MSHA filed a complaint with the
Mine Safety and Health Review Commission.
Answer. See Table D below.
The number of FTE's for coal and M/NM inspectors, and the
number of these positions that were filled or occupied.
Answer.
------------------------------------------------------------------------
Coal Inspectors* M/NM Inspectors
------------------------------------------------------------------------
1990.............................. 806 354
1991.............................. 847 341
1992.............................. 865 345
1993.............................. 848 352
1994.............................. 797 343
1995.............................. 756 318
1996.............................. 690 289
1997.............................. 634 272
1998.............................. 615 287
1999.............................. 631 318
2000.............................. 660 305
2001.............................. 653 326
2002.............................. 605 339
2003.............................. 621 365
2004.............................. 579 371
2005 584 357
------------------------------------------------------------------------
* It is noteworthy that the coal mine inspector's average workload
has declined. The number of coal mines has decreased 26 percent over
the last 10 years but the number of coal mine inspectors declined only
15 percent during that time. In the late nineties, there were 3.8 coal
mines for each inspector. Since 2000, that workload has been reduced to
3.4 coal mines for each inspector.
In addition, the M/NM mine inspector's average workload has also
declined. The number of M/NM mines has increased 16 percent over the
last 10 years while the number of M/NM mine inspectors increased by 24
percent during that time. In the late nineties, there were 39 M/NM
mines for each inspector. Since 2000, that workload has declined to 36
M/NM mines for each inspector. This change has allowed MSHA to complete
a higher percentage of its required inspections.
questions of senator hatch
Question 1. Legislation has been introduced to prohibit the use of
belt air for ventilation. In my home State of Utah, many underground
mines utilize belt conveyors for ventilation purposes. What are the
safety benefits of using belt air ventilation in underground coal
mines?
The use of air in the belt entry to ventilate the working
face, with appropriate conditions attached, provides a safe mining
environment that facilitates and promotes the use of technologically
advanced, early-warning fire-detection systems.
Since the MSHA belt air regulations mandate the use of an
atmospheric monitoring system with belt air, mines that use belt air
have improved fire detection capabilities relative to those mines using
point-type heat sensors. Total ventilation capacity increases. The
increased ventilation can lower dangerous methane concentrations (as
well as dilute respirable coal mine dust), thereby increasing safety.
There are also certain ground control advantages realized
by being able to limit the number of development entries. This reduces
the probability of roof falls and rib outbursts.
The use of belt air is an alternative for mine operators
who choose to implement it. Before the regulation was in place, the use
of belt air was permitted only after MSHA granted a petition for
modification requesting the use of belt air.
MSHA began granting petitions for modification to permit
the use of belt air for this purpose in 1980. Sixty-seven petitions
were approved between 1993 and 2001, each with a specific finding that
the practice was safe. An additional 27 were approved between 2001 and
the publication of the Belt Air rule in 2004, which included the major
stipulations of previously granted petitions and rendered those
petitions invalid with the application of a nationwide rule.
The final belt air rule increased miner protection by
including various requirements that were NOT included in all the
petitions. For example, all sensors used must be listed by a Nationally
Recognized Testing Laboratory, such as Underwriter's Lab; the trunk
lines for the communication system and the AMS must be installed in
separate entries; CO sensors must be installed in the intake
escapeways; sensor spacing must be reduced to 1,000 ft. (versus older
petition requirements of 2,000 ft. for some mines); alert and alarm
levels for many mines were reduced from 10 and 15 ppm to 5 and 10 ppm;
point-feeds have increased protection by requiring monitoring of the
point-feeds; notification of sections has been improved by requiring
all outby (away from fire) sensors to automatically notify sections of
alarms; and lifelines are required when returns are used as alternate
escapeways.
Question 1 (continued). If belt air ventilation systems were
prohibited, how many mines would have to cease operating?
Answer 1 (continued). The prohibition of belt air ventilation
systems would impact all 41 mines that are currently using belt air to
ventilate a working section of the mine. It is difficult to quantify
the number of mines that would cease operations. Mines that are heavily
gassy (such as those in Virginia and Alabama), or are operating with
low profit margins, would be most impacted. Mines that have begun
operations since the promulgation of the belt air regulation would also
be heavily impacted.
The impact in the most severe cases could require development of
new entries that are extremely costly. Other cases would require very
costly increases in ventilation capacity. In some cases, the mine
operator may choose to absorb the impact of additional costs and
continue operations, albeit in less safe conditions, without the use of
belt air for ventilation. In other cases, the mine operator may choose
to operate at reduced capacity or productivity, or cease operations
altogether. Both coal production and employment would be affected.
Mines designed to use belt air would need to be redesigned in order to
decrease the hazards associated with high methane liberation and
respirable coal mine dust or those miners would face increased risk
from those hazards. MSHA does not support such an unwarranted overall
decrease in mine safety. The Belt Air Rule has been determined to be
properly promulgated as a safe rule, which increases mine safety. In
conjunction with the National Institute for Occupational Safety and
Health, MSHA will implement provisions in the MINER Act related to the
use of belt air in underground coal mines.
Question 2. There has been a lot of discussion of wireless
communication technology for use in underground mines. What are the
limitations of this technology?
Answer 2. In simple terms, the high frequency radio waves used in
readily available above ground communication systems, such as walkie-
talkies, broadcast radio and TV, and cellular phone service, are
blocked, absorbed, or reflected by rock strata and soil. In a mine,
radio frequency communications are essentially line of sight down an
entry with limited range due to absorption and reflections of the
signals. The radio waves have very limited ability to propagate around
a coal pillar. Communication range is also restricted by the need for
low transmitting power levels to meet MSHA permissibility requirements
for use in potentially explosive atmospheres. MSHA will implement
requirements in the MINER Act related to communication systems.
Question 3. I understand that there has been some concern about
evacuation practices in the event of accidents like the two in West
Virginia in January. Has the Mine Safety and Health Administration
acted to address that problem?
Answer 3.
On January 25, 2006, MSHA published a Request for
Information (RFI) on issues relevant to underground mine-rescue
equipment and technology and is actively testing communication systems
for use in underground coal mines. The record closed March 27.
On March 9, 2006, MSHA published an Emergency Temporary
Standard (ETS) that includes requirements for immediate accident
notification applicable to all underground and surface mines;
additional self-contained self-rescuer storage and training; additional
evacuation training; and the installation and maintenance of lifelines
in underground coal mines. Specifically, drills and hands-on training
are now required to assure that miners are familiar with evacuation
procedures as well as self-contained self-rescuers (SCSRs) donning and
transferring procedures. This will also assure that miners are familiar
with escape routes and locations of additional SCSRs that may be
located in caches along the escapeways.
On March 13, 2006, MSHA held a public meeting to receive
comments on two specific topics covered in the RFI: technology used for
underground communications and tracking of underground miners.
MSHA held a joint MSHA/NIOSH workshop on mine escape
planning and emergency shelters in Washington, D.C. on April 18, 2006.
On April 20-21, 2006, MSHA cosponsored an International
Mining Safety and Health Symposium in Wheeling, West Virginia, to
develop strategies for mine safety, with a focus on state-of-the-art
technologies.
In addition, MSHA and others are still conducting a formal
investigation to determine the causes of the two West Virginia mining
accidents at the Sago and the Aracoma Alma No. 1 Mine. MSHA has also
initiated internal reviews covering MSHA's actions at the Sago Mine and
Aracoma Alma No. 1 Mine. MSHA and the State of West Virginia held a
public hearing on the Sago accident May 2-4 in Buckhannon, WV.
MSHA is implementing the requirement in the MINER Act that
each underground coal mine operator have an approved emergency response
plan.
Question 4. Since the mining disasters in West Virginia, much has
been written and said about mine safety. The Salt Lake Tribune, a major
newspaper in Utah, recently reported that in 2004 and 2005, Utah mines
received more than 2,600 citations, 936 of them classified as serious,
and they paid close to $300,000 in fines. I've met with coal operators
in Utah and I know that safety is their top concern. In fact, David
Litvin, president of the Utah Mining Association states, ``The number
one value in mining is to be safe.'' Do you think we need to evaluate
the method for determining what is a significant and substantial (S&S)
violation? For example, I've heard a mine that received an S&S
violation for having toilet paper on the bathroom floor.
Answer 4. Since 1984, the Federal Mine Safety and Health Review
Commission has used the current legal test for determining whether a
violation is significant and substantial. Under that test, a violation
is S&S if the hazard contributed to by the violation is reasonably
likely to result in serious injury or death. MSHA trains its inspectors
to know when to apply the criteria to determine when a violation is
S&S. Your question uses the example of a violation based on having
toilet paper on the bathhouse floor. A violation based solely on that
situation would not be S&S because the hazard contributed to by the
violation would not be reasonably likely to result in injury.
Under the Mine Act, the seriousness of a violation is one factor
that must be considered in assessing a penalty. Other factors that must
be considered are the operator's history of previous violations, the
size of the operator, whether the operator was negligent in committing
the violation, the effect of the penalty on the operator's ability to
continue in business, and the good faith of the operator in abating the
violation. A penalty for a violation that was not serious or reasonably
likely to result in injury would not be increased based on the
seriousness criterion. It might, however, be increased because of other
criteria such as the operator's high negligence in committing the
violation or the operator's large history of previous violations. In
this way, operators who have tended to disregard miner safety are more
likely to be deterred from committing future violations.
questions of senator byrd
Question 1. Why did 21 coal miners have to die this year before
MSHA took these steps?
Answer 1. MSHA has always acted and will continue to act in a way
that would protect the safety and health of our Nation's miners so that
every miner returns home safely every day. While the events of this
year are deeply regrettable, the lowering of the fatality and accident
rates over the last 5 years is evidence of the industry's progress in
meeting that goal. When a fatal accident occurs, MSHA fully
investigates the incident to identify the root causes and prevent any
other fatalities. Although the exact causes of the accidents in January
have not yet been fully determined, MSHA has already taken action to
prevent any future occurrences of similar tragedies. Under an emergency
temporary standard, issued March 9, 2006, MSHA will require repetitive
evacuation drills in the mine environment to familiarize miners with
the routes needed to be followed in order to safely evacuate
underground coal mines. Along those evacuation routes, called
escapeways, MSHA will require lifelines and storage areas holding
enough Self-Contained Self-Rescuer (SCSR) devices for each person
underground to successfully evacuate the mine. Furthermore, each miner
must have an additional SCSR available nearby on the mantrip and in the
working area. After the investigations are complete, MSHA will assess
whether any further actions may be needed.
Question 1a. Why were rules, such as those addressing belt-air
ventilation in 2004, addressed before these critical initiatives?
Answer 1a. The safe use of belt air was established independently
of the use of additional communications equipment and emergency rules.
MSHA, through several Administrations, has more than 20 years of
experience granting petitions for modification allowing mines to use
belt air safely to ventilate places where miners work.
MSHA began granting petitions for modification to permit the use of
belt air for this purpose in 1980. Sixty-seven petitions were approved
between 1993 and 2001, each with a specific finding that the practice
was safe. An additional 27 were approved between 2001 and the
publication of the Belt Air rule in 2004, which included the major
stipulations of previously granted petitions and rendered those
petitions invalid with the application of a nationwide rule.
The advantages of using belt air to help ventilate places where
miners work include reducing dangerous methane concentrations, the
dilution of respirable coal mine dust, and providing increased
protection through the use of Atmospheric Monitoring Systems that
detect incipient fires before they ignite. There are also certain
ground control advantages realized by being able to limit the number of
development entries.
The Arcoma Alma No. 1 belt air petition was approved by the Agency
in 2000 and contained routine requirements. After the final ventilation
rule in 1992, such petitions became fairly standardized. The final Belt
Air Rule actually increased miner protection by including various
requirements that were not included in the Arcoma Alma No. 1 petition.
For example, all sensors used must be listed by a Nationally Recognized
Testing Laboratory, such as Underwriter's Lab; the trunk lines for the
communication system and the AMS must be installed in separate entries;
CO sensors must be installed in the intake escapeways; point-feeds have
increased protection by requiring monitoring of the point-feeds; and
notification of sections has been improved by requiring all outby (away
from fire) sensors to automatically notify sections of alarms.
Question 2. When will MSHA publish its emergency standard on mine
rescue training, accident notification, self-contained, self-rescuers,
and lifelines?
Answer 2. The Emergency Temporary Standard (ETS) was published on
March 9, 2006.
Question 2a. This emergency standard was announced 3 weeks ago. Why
has it not yet been published?
Answer 2a. The ETS was published on March 9, 2006.
Question 2b. Today's Charleston Gazette reports that the White
House is delaying the rule for emergency oxygen. Why is that?
Answer 2b. The White House did not ``delay'' the rule. MSHA started
work on this rule in late January and published it in early March.
Question 2c. Why did MSHA not update these rules before the Sago
and Alma tragedies?
Answer 2c. Each mine accident is in its own way unique. Writing
regulations for the entire industry requires careful consideration of
common elements that are identified through objective investigation. A
regulation must be specific to address either a safety or health
hazard. For example, after the Jim Walters No. 5 accident in September
2001, the Agency took action to address issues identified in the
official accident report that appeared to be universal to underground
coal mines: basically that one responsible party at each mine needed to
be identified as being responsible for evacuating the mine in case of
an accident, that only those persons identified as emergency personnel
could reenter the mine, and that miners practice evacuation through
drills. The recent accidents in West Virginia indicate that the Agency
needs to go further to assure that miners receive the necessary
evacuation training, have additional SCSR training under realistic
conditions, and have additional equipment available (SCSRs and
lifelines). Mine operators are also required to report accidents within
15 minutes to the Agency.
Question 3. When will MSHA publish new requirements for emergency
communications and locating equipment?
Answer 3. MSHA will publish new requirements for emergency
communications and locating equipment when it identifies equipment (1)
suitable for all, or a definable subset, of mines; (2) that can
reasonably be expected to function and assist in a mine evacuation or
mine rescue after a mine fire, explosion, or inundation; (3) that is
acceptably reliable, accurate, provides coverage throughout the mine,
and does not interfere with other communications systems; and (4)
preferably has other desirable properties such as being two-way and
capable of verifying receipt of message. MSHA's Directorate of
Technical Support has, as part of its responsibilities, identified,
evaluated, and approved suitable emergency communications and locating
equipment--including the Personal Emergency Device (PED) and the
Tracker Tagging System, both manufactured by Mine Site Technologies.
The Technical Support Directorate is currently involved in an
intensive search and evaluation of emergency communications and
locating equipment capable of assisting in a mine evacuation or mine
rescue. MSHA will implement provisions in the MINER Act related to
emergency communications and locating equipment.
Question 3a. MSHA announced 4 weeks ago that it was reassessing
these requirements. Why has it not yet issued anything?
Answer 3a. It takes time to reassess requirements for emergency
communications and locating equipment. Candidate equipment must be
identified, its properties must be evaluated and field-tested, and it
must be shown to perform safely and effectively, or be modified to
perform safely and effectively, in a mine environment. Because of the
difficulties posed by an underground mine environment, most
communications and locating equipment are not safe and effective in a
mine environment, particularly after a fire, explosion, or inundation.
Requiring unsuitable emergency communications and locating equipment
could actually reduce miner protection. MSHA's Technical Support
Directorate is currently engaged in a variety of activities to locate
suitable emergency communications and tracking equipment. These include
the following:
On January 25, 2006, MSHA issued a Request for Information (RFI) on
issues related to mine rescue equipment and technology. Included were
emergency communications and tracking equipment. MSHA's Technical
Support Directorate is reviewing comments and proposals arising from
the RFI.
On March 13, 2006, a public meeting was held at the National Press
Club in Washington, D.C. MSHA specifically solicited technical
presentations or written comments that discussed the following key
issues raised in the recent Request for Information (RFI):
``Underground Communications and Tracking of Underground Miners'' which
was published in the Federal Register on January 25, 2006.
A Mine Communications Partnership was formed, of which MSHA is a
member. Other members are the BCOA, NIOSH, NMA, UMWA, USWA and the West
Virginia Office of Miners' Health, Safety & Training. The primary goals
of this Partnership are to establish general performance expectations
for mine emergency communications systems; establish uniform and fair
criteria for testing and evaluating systems; conduct in-mine tests on
systems; and report the findings. A secondary goal is to identify gap
areas that should be addressed through research. The first meeting was
held on March 3, 2006.
On April 18, 2006, MSHA and the National Institute for Occupational
Safety and Health (NIOSH) co-hosted a workshop on ``Mine Escape
Planning and Emergency Shelters'' at the National Academy of Sciences
Auditorium in Washington, DC. Representatives from NIOSH and MSHA
discussed issues involving escape planning with emphasis on evacuation
as the first priority.
On April 20-21, 2006, MSHA, NIOSH and the State of West Virginia
cosponsored the International Mining and Health Safety Symposium. The
Symposium was held at the Robert C. Byrd National Technology Transfer
Center and the Civic Center in Wheeling, WV. The Symposium brought
together technology developers, equipment manufacturers, the Federal
Government, the State Government of West Virginia, organizations
representing the mining industry and community, and other countries
(e.g. Canada and Australia) to discuss the development, approval, and
adoption of state-of-the-art technologies and mining methods.
Question 3b. Why did MSHA not update these requirements before the
Sago and Alma tragedies?
Answer 3b. Long before the Sago and Alma Mine tragedies, MSHA's
Directorate of Technical Support had been identifying, evaluating, and
approving suitable emergency communications and locating equipment. At
the time of the Sago and Alma Mine tragedies, safe and effective
emergency communications and locating equipment, capable of functioning
after a mine fire, explosion, or inundation, had not been identified
for purposes of updating requirements.
Question 4. According to a data analysis in today's New York Times,
the Bush Administration has decreased major fines for safety violations
since 2001. In nearly half of the cases, it has not collected the
fines. The Times also reports that MSHA has failed in the last 2 years
to hand over any delinquent cases to the Treasury Department for
further collection efforts.
a. Why are major fines for safety violations decreasing?
b. Of the total amount of fines assessed by MSHA last year, how
much has been collected?
c. How many uncollected fines have been referred to the Treasury
Department?
d. How many uncollected fines have been referred to the Justice
Department?
e. How many uncollected fines have been reported to the IRS?
Answer 4. The following table is useful for putting the number of
penalties assessed at $10,000 or higher in perspective.
a. During the period between 1993 and 2005, the number fluctuated
widely from year-to-year, from a low of 21 in 1996 to a high of 158 in
1998. The decline from 2004 to 2005 is more a reflection of the
relatively large number of penalties assessed at the $10,000 or greater
level in 2004. In 2004, MSHA proposed 156 penalties of $10,000 or more.
The only other year in which more were proposed at this level was 1998
with two additional $10,000+ cases.
Penalties Assessed at $10,000 or More
------------------------------------------------------------------------
Number
CY Assessed Assessed Current Penalty Totals
------------------------------------------------------------------------
1993.............................. 93 $1,707,500
1994.............................. 75 1,445,790
1995.............................. 48 1,103,255
1996.............................. 21 448,750
1997.............................. 53 1,241, 544
1998.............................. 158 3,314,300
1999.............................. 93 2,344,450
2000.............................. 121 2,730,333
2001.............................. 103 1,735,970
2002.............................. 120 1,976,300
2003.............................. 65 1,830,170
2004.............................. 156 3,872,880
2005.............................. 97 2,262,200
------------------------------------------------------------------------
b. In 2005, MSHA proposed $24.8 million in civil penalties. As of
July 25, 2006: these proposed assessments were reduced to $23.3 million
through litigation; MSHA had received $16.3 million in payment; $4.2
million was pending payment; and $2.8 million was still pending
litigation.
c. MSHA records indicate that, as of September 30, 2006, MSHA had
referred $13.5 million of delinquent debt to the Treasury Department
for collection. MSHA experienced problems with referring delinquent
civil penalties to the Treasury Department after deploying a new
computer system and operating procedures in 2003. This resulted in the
manual referral of only a very few unpaid penalties to Treasury for
collection in 2004 and 2005. MSHA and Treasury completed testing the
electronic referral process on March 16, 2006, and MSHA resumed
electronic delinquent debt referral to Treasury. The first electronic
transfer since 2003 was sent to Treasury on March 17, 2006, and we
intend to eliminate the backlog of Treasury referrals by the end of
fiscal year 2006. We implemented new procedures to expedite ongoing
delinquent debt referrals to Treasury so that all available
delinquencies are referred within the timeframes stipulated in the Debt
Collection Improvement Act of 1996. By the end of fiscal year 2006 MSHA
had referred 96 percent of all delinquent civil penalty debt over 180
days old to Treasury. To help streamline the civil penalty payment
process, MSHA plans to develop an electronic payment/contest option for
use by mine operators. This approach will reduce the overall time for
payments to reach MSHA and also shorten the time to process contested
cases.
d. MSHA does not refer delinquent debt directly to the Justice
Department. The Treasury Department directly refers debt to the Justice
Department after the debt meets certain thresholds. MSHA began an
initiative in 2005 to identify operators who routinely fail to pay
their civil penalties. In February 2006, MSHA filed two precedent-
setting lawsuits in the U.S. District Court for the Eastern District of
Kentucky seeking injunctions against mine operators who have
chronically failed to pay assessed civil money penalties for violations
of the Mine Act. On June 23rd, the District Court judge ruled that
these cases can move forward.
e. As a participant in Treasury's Cross Servicing/Offset Program,
MSHA requests that Treasury submit the appropriate authorization (Form
1099-C) for the IRS to treat uncollectible debt as income. Treasury
reported approximately $250,000 of uncollectible debt in this category.
Question 5. You have proposed that the Congress raise the maximum
statutory penalty from $60,000 to $220,000.
In 2005, how many times did MSHA assess the maximum statutory
penalty at the Sago and Alma Mines?
a. Why then is raising the statutory penalty a significant response
to those disasters?
b. The Sago Mine was a habitual violator, and never paid a fine
higher than $400 in 2005. Why not impose minimum penalties for
egregious violations to ensure that habitual violators do not get away
with merely token penalties?
Answer 5. MSHA did not issue any civil penalties at the maximum
statutory level at either the Sago Mine or Alma Mine in 2005.
The Secretary's request to raise the maximum statutory penalty from
$60,000 to $220,000 was not a direct response to the Sago and Alma
accidents. In fact, the Secretary proposed this increase well before
the accidents. The President's 2004, 2005, 2006, and 2007 Budgets for
the Department of Labor proposed raising MSHA's civil monetary
penalties. A draft legislative proposal was developed in early 2005,
which would amend Section 110 of the Mine Safety and Health Act to
permit MSHA to assess a maximum civil penalty of $220,000 for certain
``flagrant'' violations that ``. . . substantially and proximately
caused, or reasonably could have been expected to cause, death or
serious bodily injury.'' The bill is intended to enhance MSHA's ability
to impose appropriate penalties in situations where mine workers'
safety or health is endangered by flagrant violations of mine safety
and health laws. The MINER Act, which was enacted on June 15, 2006,
included a provision for civil penalties for flagrant violations
similar to that proposed by the Secretary.
MSHA is revising the civil penalty assessment procedures. This
effort will implement civil penalty requirements in the MINER Act, and
will increase penalties, and streamline the process.
Response to Questions of Senator Enzi and Senator Byrd by Cecil Roberts
questions of senator enzi
Question 1. One thing we all seem to agree on is that miners in
this country need to have better communications technology available to
them. At the subcommittee roundtable that Senator Isakson and Murray
hosted last week, it was apparent that while there is some technology
commercially available that may allow miners in some mines to receive
text messages, however, for the most part the communications technology
we all dream of is not yet on the market for mining applications. Do
you have any thoughts on what we can do to parlay the expertise and
resources of NIOSH and MSHA and private industry to create and
manufacture this technology?
Answer 1. MSHA and NIOSH only recently focused on these compelling
needs, and this constitutes a critical first step in achieving success.
Establishing these objectives (two-way communications) as an immediate
research goal of both MSHA and NIOSH will expedite a successful
outcome. Awarding a specific Federal grant for this R&D may be
warranted. From the subcommittee roundtable, we learned about a variety
of technology which may have good application within the mining
industry. In late April, there will be another opportunity to see
equipment and technology that may be of interest to these Agencies in a
forum that the State of West Virginia Office of Miners' Health, Safety
and Training has organized. Also, these Government Agencies must learn
from research performed and technology developed in and for other
purposes. In particular, the Navy, NASA, and the Aviation industry face
many challenges similar to those confronting the mining industry; NIOSH
and MSHA should solicit information from those groups to see if they
can shed light on technologies that can help make mining safer and mine
emergency procedures safer and more effective.
Question 2. Your organization has devoted resources to the issue of
mine safety and we appreciate your efforts. We are also aware that
NIOSH has functioned as a focal point for mine safety research. What
has your experience with NIOSH been, and do you believe there are ways
to enhance the research being done today?
Answer 2. NIOSH has been a strong partner in researching and
developing health and safety equipment and protections. However,
because of its limited budget, NIOSH has not been able to pursue
research on many needed improvements to miners' health and safety.
Further, and too often, MSHA has failed to respond appropriately when
NIOSH has made recommendations for improved protections based on its
research. For example, NIOSH recommended reducing respirable dust
exposures, but MSHA has not promulgated a rule to accomplish this (nor
does it include such a rule among its rulemaking priorities). Likewise,
MSHA has not required operators to use an electromagnetic tracking
device that was approved for use by the Bureau of Mines in the 1970's.
When NIOSH research leads to findings about ways to improve miners'
health and safety, MSHA must quickly implement rules that would make
use of NIOSH's work.
Question 3. During your testimony you mentioned two technologies
currently available that would assist in locating and communicating
with miners in a postaccident setting. Which two technologies were you
referencing?
Answer 3. In addition to the electromagnetic tracking device from
the 1970's, we know about the Personal Emergency Device (PED) which
permits one-way text messaging, as well as more-limited signaling back
by the miner who wears a PED unit. This equipment is in use in about a
dozen underground mines in the United States, as well as in Australia.
For tracking there is the ``Tracker IV'' system: for this the miner
wears a transmitter that emits a unique signal that strategically-
located beacons can receive. This system has been used successfully in
Australia. Miners in Poland also use tracking devices as we know their
use lead to the successful rescue of a trapped miner about 2 weeks ago.
We are also learning about other technology that is either available
already or under development; some of this technology was discussed and
demonstrated at a hearing MSHA conducted on Monday, March 13, 2006.
questions of senator byrd
Question 1. What is your response to those who argue that we ought
to delay passage of the West Virginia Delegation mine safety bill?
Answer 1. Delay would be inexcusable. It has already been too long
for these safety measures to be implemented. To the extent
manufacturers may need time to produce the extra self-rescuers that
will be needed to satisfy what the legislation requires, orders should
be placed to encourage the speedy implementation.
Question 2. What is happening with MSHA's interview process in
regard to miners and family members being allowed to have
representatives present?
Answer 2. No miners' representatives or family members have been
permitted to attend any of the MSHA/State investigative interviews;
this is despite specific requests by both to attend and participate.
Response to Questions of Senator Enzi and Senator Kennedy by Tom Novak
questions of senator enzi
Question 1. As I am sure you are aware, much of overall regulation
of workplace safety focuses on the elimination of potentially dangerous
conditions. Some have criticized this approach because it does not
adequately address the issue of human error or behavior that is often
an element in workplace accidents. Do you have any suggestions as to
how we might address this issue more directly, or completely?
Answer 1. Human error or behavior results in the vast majority of
workplace accidents. Even the most stringent safety regulations fall
short of preventing these types of mishaps. Miners closely interact
with machines in confined, unpredictable environments. Thus, workers,
including supervisory personnel, must be well trained, constantly aware
of their surroundings, and ever cognizant of the fact that their
safety, as well as that of their coworkers, depends on their job
performance and safety awareness. Human error can result from many
sources, some of which include--inadequate training, complacency, low
morale, impaired judgment from substance abuse, and poor work ethic.
Modifying human attitudes and behavior is difficult; nonetheless,
if success is to be achieved in this area of accident prevention, a
safety-oriented culture must be constantly reinforced in all mine
employees, not just the safety department. The entire workforce must be
fully engaged in safety management. This safety-conscious mindset must
originate at the highest levels of management, and safety first must
become company policy, not just a slogan. Management must demonstrate
that it will not tolerate unsafe work practices. On the other hand,
management should provide incentives to reward employees for improving
the safety of job functions and procedures for which they have direct
control or responsibility, not only incentives based solely on
statistics, such as lost time accidents. Mine workers must assume
responsibility for their actions and behavior with respect to safety.
At the same time, management must strive to provide the safest possible
environment in which to work. New-miner training, annual retraining,
task training, and safety meetings must not simply be formalities. Mine
operators have the obligation to provide the best possible training,
while mine workers should have to demonstrate their competency before
being assigned to, or continuing in, their job functions.
Question 2. One thing we all seem to agree on is that miners in
this country need to have better communications technology available to
them. At the subcommittee roundtable that Senator Isakson and Murray
hosted last week, it was apparent that while there is some technology
commercially available that may allow miners in some mines to receive
text messages, however, for the most part the communications technology
we all dream of is not yet on the market for mining applications. Do
you have any thoughts on what we can do to parlay the expertise and
resources of NIOSH and MSHA and private industry to create and
manufacture this technology?
Answer 2. The ideal mine communication system--one that offers two-
way, through-the-earth communications; a method for tracking the
location of mine workers; safe operation in a potentially explosive
environment; and robust construction to withstand a catastrophic event,
such as a fire or explosion--unfortunately does not exist. However,
there are some systems that meet various parts of these requirements.
For the short term, I propose that an objective research study be
initiated as soon as possible to evaluate the effectiveness,
practicality, reliability, and limitations of existing products
identified from a world-wide search. As part of this study, definitive
recommendations would be made with respect to the application of these
products for the various conditions found in U.S. mining operations. If
necessary, MSHA would need to streamline its approval process for
devices not already approved for use in U.S. mines. This would give a
mining company the ability to select a system that best meets its
specific conditions. The final outcome of the study would define
realistic and achievable specifications for the development of an
optimum communication system(s).
In the 1970s and 1980s, the U.S. Bureau of Mines funded an
extensive research program on mine communications and laid the
scientific foundation for in-mine and through-the-earth communications.
Numerous demonstration systems were successfully installed and
evaluated during this period. However, only a few of these systems are
still in use, and several of the hardware-producing companies are no
longer in the mine communications business. The underlying physics
necessary to develop communication systems has not changed in the
ensuing years, but the technology to implement it has changed
dramatically in methods, efficiency, cost, and size. For the long-term,
I would suggest that NIOSH be given a budget to reestablish its
communications research group and to fund external research contracts
to develop the optimum mine communications system(s) defined in the
preliminary study. This technology would then be transferred to any
interested manufacturer for commercialization.
Question 3. As you may know there has been some discussion
regarding the use of so-called ``belt air'' for ventilation purposes.
Could you give us your views on this practice, and, in particular its
use in mines with ``high cover?''
Answer 3. Belt conveyors in coal mines have been traditionally
located in neutral airways. A neutral airway is an airway that must be
isolated from intake and return airways by means of stoppings, which
are walls constructed in the crosscuts connecting parallel airways. A
neutral airway must be vented to a return airway, and its air quantity
is regulated so that only a small quantity of air flows along the
beltline, but this quantity must be sufficient to maintain oxygen
concentrations above 19.5 percent and methane concentrations below 1.0
percent. The purpose for keeping the belt entry isolated is to prevent
intake air from being contaminated from smoke and/or carbon monoxide in
the event of a fire along the belt conveyor. It should be pointed out
that ventilation control devices, such as stoppings, are not airtight
and that significant leakage occurs in coal-mine ventilation systems.
Thus, the belt airways are not truly isolated.
Keeping belt conveyors in isolated air splits worked well, and
continues to work well, for many mining operations. However, in the
early 1980's, the utilization of longwall mining matured in the U.S.,
and many mining operations moved to deeper coal seams with higher
methane contents. These operations require significant increases in
ventilation quantities in order to dilute methane concentrations to
safe levels. The only way to achieve the increased requirement in
intake air is through the development of an additional airway or
through the use of the existing belt entry as an intake airway. The
development of an additional, parallel airway is often impractical when
developing longwall gate entries. With some longwall mines in the
western U.S., the use of an additional gate entry creates a safety
hazard because of the inability to maintain stable roof conditions
caused by extreme rock pressures associated with the deep cover in
mountainous terrain. As a result of these safety concerns, mining
companies submitted Petitions for Modifications to MSHA to permit the
use of belt entries as intake airways. These petitions require the mine
operators to demonstrate that the proposed method provides the same, or
greater, level of safety than afforded by the existing standard.
Therefore, very stringent prerequisites for monitoring carbon monoxide
concentrations in the belt airway were required before MSHA would
approve the petitions. Many petitions were granted through the years,
which allowed MSHA to evaluate the safety and effectiveness of using
belt entries as intake airways for more than 2 decades. The positive
safety record associated with this practice throughout the past 2
decades has resulted in petition requirements evolving into the
present-day regulations. An atmospheric monitoring system (AMS), which
monitors smoke and carbon monoxide concentrations, is required if belt
air is used to ventilate working sections. This system is capable of
detecting smoke and CO even before a fire occurs. A sampling of the
regulations includes the following:
An operator, located on the surface, must constantly
monitor and promptly respond to all AMS signals.
Two-way voice communications must be maintained between
the AMS operator and each working section, with other areas designated
in the approved emergency evacuation and firefighting program.
The AMS must automatically provide visual and audible
signals at the designated surface location for any interruption of
circuit continuity and any electrical malfunction of the system.
The AMS must automatically provide visual and audible
signals at all affected working sections when the detection level at
any sensor reaches the alarm level.
The regulations further specify the locations of sensors,
maintenance, examination, testing, calibration, detection levels, and
training of personnel.
In contrast to these stringent requirements, mines that maintain
belt entries as neutral splits are not required to use atmospheric
monitoring systems. I feel that mines that utilize belt air as intake
air in conjunction with atmospheric monitoring systems are actually as
safe as, if not safer than, mines that isolate the belt without a
monitoring system.
questions of senator kennedy
Question 1. How can we address this shortage of people graduating
with degrees in mining? Do you recommend requiring degrees and for our
mine supervisors and managers like those in Australia? If so, how can
we go about making sure that we have enough candidates who meet these
requirements?
Answer 1. In my testimony before the Senate Committee on Health,
Education, Labor, and Pensions, I stated that only half of the mining-
engineering programs that existed 20 years ago exists today. There are
two reasons for this dramatic decline--low enrollments and lack of
research funding. Dramatic declines in enrollment coincided with the
downturn in the U.S. mining industry, which began in the early 1980s.
Unfortunately, a downward spiral in research funding also occurred
during this same period. Colleges and universities do not tolerate low
enrollments for extended periods, and research universities expect
mining-engineering departments to maintain research programs that are
comparable with other engineering departments. Thus, during the past 20
years, foundering mining programs were continually closed. Even if
existing mining programs remain open, their outlook remains dismal
without strong research funding, which is required to produce the
Ph.D.'s necessary to fill future professorships. The major issue is the
sustainability of mining engineering programs.
The bright spot is that the mining industry has recently
experienced a remarkable turnaround, which has caused an incredible
demand for mining engineers. All indicators signify that this demand
will remain strong for at least the next 10 years. As a result,
enrollments should significantly grow over the next few years. I am
hopeful that this increase in enrollment will provide the engineers
needed to safely design, supervise, and manage our country's mines.
However, the lack of research funding has not changed, and mining-
engineering departments remain at risk even with strong enrollments.
The committee cannot really address issues of enrollment, which is
dictated by market conditions. However, the committee can help ensure
the future of mining engineering education by supporting mine-safety
research funding for universities. This support will contribute to mine
safety in two separate ways. First, the support will provide the
research necessary to find solutions to the complex issues of mine
safety. Second, research funding will sustain the viability of mining
engineering programs that will produce highly-trained future engineers
to design and operate our mines safely.
I recommend that this research be administered through NIOSH's
Office of Mine Safety and Health Research, or a newly created institute
based on this Office. The newly formed Mine Safety Technology and
Training Commission (discussed in the response to the following
question), with representatives from NIOSH, UMWA, industry, and
academia, could be used to determine and prioritize the research needs
of the industry.
In response to the second part of your question, I am not willing
to suggest that mine managers and supervisors have mining engineering
degrees. Even though many mine managers have degrees, this requirement
would preclude other qualified individuals from holding these
positions. Individual States presently certify section foremen, general
mine foremen, and chief electricians through a combination of work
experience and written examinations. The length of experience is
typically reduced if an applicant has a mining engineering degree.
Therefore, at present time, I would not recommend that a degree
requirement be implemented.
Question 2. What recommendations would you have to improve the
collaboration between NIOSH, academia, industry, and the UMWA on
appropriate avenues for health and safety research?
Answer 2. The most effective method to improve collaborations
between NIOSH, academia, industry, and the UMWA is through the
formation of a multifaceted committee where all stakeholders are
represented. This has already occurred through the formation of the
Mine Safety Technology and Training Commission. This commission
consists of the following members:
NIOSH--Dr. Jeffrey Kohler, Associate Director for Mining
and Construction.
Academia (Mining Engineering)--Dr. Larry Grayson,
Professor and Chair, University of Missouri--Rolla and Dr. Thomas
Novak, Professor and Department Head, Virginia Tech.
Academia (Public Policy)--Dr. Amy Donahue, Assistant
Professor, University of Connecticut.
Industry (Management)--Brett Harvey, president and CEO,
CONSOL Energy, Inc. and Anthony Bumbico, Corporate Safety Director,
Arch Coal, Inc.
Industry (Mine Rescue Training)--Mark Beauchamp,
Twentymile Coal Co. and H.F. Webb, Waste Isolation Pilot Plant.
UMWA--Cecil Roberts, president, UMWA
Consultant--Stanley Cohn, executive vice president,
Concepts to Operation, Inc.
This commission will study existing and new technologies, as used
in various industries, to determine which can improve the protection of
underground coal miners. Through information-gathering meetings, the
commission will examine the conditions under which various technologies
and training procedures can significantly increase the odds of survival
for miners in emergency situations. The commission held its first
meeting on March 2, 2006 in Washington, DC., and its second meeting is
scheduled for April 27, 2007 at NIOSH's Pittsburgh Research Laboratory.
The commission plans to have a report prepared by June 30, 2006.
Question 3. What do you expect in the future for mine
communications? New communications systems like the PED are widely used
in other countries like Australia, where can the United States look to
find the most modern, effective and versatile communications systems?
Answer 3. The ideal mine communication system--one that offers two-
way, through-the-earth communications; a method of tracking the
location of mine workers; safe operation in a potentially explosive
environment; and robust construction to withstand a catastrophic event,
such as a fire or explosion--unfortunately does not exist. However,
there are some systems that meet various parts of these requirements.
For the short term, I propose that an objective research study be
initiated as soon as possible to evaluate the effectiveness,
practicality, reliability, and limitations of existing products
identified from a world-wide search. As part of this study, definitive
recommendations would be made with respect to the application of these
products for the various conditions found in U.S. mining operations. If
necessary, MSHA would need to streamline its approval process for
devices not already approved for use in U.S. mines. This would give a
mining company the ability to select a system that best meets its
specific conditions. The final outcome of the study would define
realistic and achievable specifications for the development of an
optimum communication system(s).
In the 1970s and 1980s, the U.S. Bureau of Mines funded an
extensive research program on mine communications and laid the
scientific foundation for in-mine and through-the-earth communications.
Numerous demonstration systems were successfully installed and
evaluated during this period. However, only a few of these systems are
still in use, and several of the hardware-producing companies are no
longer in the mine communications business. The underlying physics
necessary to develop communication systems has not changed in the
ensuing years, but the technology to implement it has changed
dramatically in methods, efficiency, cost, and size. For the long-term,
I would suggest that NIOSH be given a budget to reestablish its
communications research group and to fund external research contracts
to develop the optimum mine communications system(s) defined in the
preliminary study. This technology would then be transferred to any
interested manufacturer for commercialization.
Question 4. What recommendations would you have to improve the
ventilation of underground coal mines? Should the industry heed the
call of West Virginia Governor Joe Manchin and abandon the practice of
ventilating mines with conveyor belt air?
Answer 4. I applaud Governor Manchin's quick response to the mine
disasters that recently occurred in his State of West Virginia. When a
disaster occurs, human nature dictates the desire to take immediate
actions in an attempt to prevent the reoccurrence of a similar
disaster. In a rush to implement new and well-meaning initiatives,
however, we must be mindful not to unintentionally neglect the true
effectiveness and associated repercussions of these initiatives. I feel
that Governor Manchin has overreacted by calling for the abandonment of
the practice of ventilating working sections with belt air.
Belt conveyors in coal mines have been traditionally located in
neutral airways, which are airways isolated from intake and return
airways by means of stoppings constructed in the crosscuts connecting
parallel airways. The purpose for keeping the belt entry isolated is to
prevent intake air from being contaminated from smoke and/or carbon
monoxide in the event of a fire along the belt conveyor. However, it
should be noted that ventilation control devices, such as stoppings,
are not airtight and that significant leakage occurs in coal-mine
ventilation systems. Thus, belt airways are not truly isolated.
Keeping belt conveyors in isolated air splits worked well, and
continues to work well, for many mining operations. However, in the
early 1980s, the utilization of longwall mining matured in the United
States, and many mining operations moved to deeper coal seams with
higher methane contents. These operations require significant increases
in ventilation quantities in order to dilute methane concentrations to
safe levels. The only way to accommodate the increased requirement in
intake air is through the development of an additional airway or
through the use of the existing belt entry as an intake airway. The
development of an additional, parallel airway is often impractical when
developing longwall gate entries. With some longwall mines in the
western United States, the use of an additional gate entry creates a
safety hazard because of the inability to maintain stable roof
conditions caused by extreme rock pressures associated with the deep
cover in mountainous terrain. As a result of these safety concerns,
mining companies submitted Petitions for Modifications to MSHA to
permit the use of belt entries as intake airways. These petitions
require the mine operators to demonstrate that the proposed method
provides the same, or a greater, level of safety than afforded by the
existing standard. Therefore, very stringent prerequisites for
monitoring carbon monoxide and smoke concentrations in the belt airway
were required before MSHA would approve a petition. Many petitions were
granted through the subsequent years, which allowed MSHA to evaluate
the safety and effectiveness of using belt entries as intake airways
for more than 2 decades. The positive safety record associated with
this practice throughout the past 2 decades has resulted in petition
requirements evolving into the present-day regulations. An atmospheric
monitoring system (AMS), which monitors smoke and carbon monoxide
concentrations, is required if belt air is used to ventilate working
sections. This system is capable of detecting smoke and CO even before
a fire occurs. A sampling of the regulations includes the following:
An operator, located on the surface, must constantly
monitor and promptly respond to all AMS signals.
Two-way voice communications must be maintained between
the AMS operator and each working section, with other areas designated
in the approved emergency evacuation and firefighting program.
The AMS must automatically provide visual and audible
signals at the designated surface location for any interruption of
circuit continuity and any electrical malfunction of the system.
The AMS must automatically provide visual and audible
signals at all affected working sections when the detection level at
any sensor reaches the alarm level.
The regulations further specify sensor locations, maintenance,
examination, testing, calibration, detection levels, and training of
personnel.
In contrast to these stringent requirements, mines that maintain
the belt entries as neutral splits are not required to use atmospheric
monitoring systems. I feel that mines that utilize belt air as intake
air in conjunction with atmospheric monitoring systems are as safe, if
not safer, than mines that isolate the belt without a monitoring
system.
Question 5. Is there a way to improve the way that inactive areas
of mines are sealed off, so methane explosions and oxygen contamination
are minimized?
Answer 5. The construction of a practical seal that is guaranteed
to be airtight with changes in barometric pressure over an extended
period is unlikely. One method to help ensure a safe environment is to
continuously monitor the air behind the seal. However, even this method
has its limitations since only the area in the immediate vicinity of
the sampling point would be monitored.
Present regulations require seals to withstand a static pressure of
20 pounds per square inch. Preliminary information reported from
International Coal Group's investigation of the Sago Mine explosion
reveals that the explosion pressures greatly exceeded the 20-psi value.
It is obvious that research into the construction and the strength of
seals is necessary. In addition to evaluating different materials,
various construction techniques, such as a horizontal-arch
configuration (similar to a dam), need to be investigated to improve
the strength of a seal. The concept of buffer zones between sealed
areas and active workings should also be investigated, along with
methods for keeping sealed areas inert.
Response to Questions of Senator Enzi and Senator Kennedy
by Michael Neason
questions of senator enzi
American Society of Safety Engineers,
Des Plaines, Illinois,
March 17, 2006.
Hon. Michael B. Enzi, Chairman,
Hon. Edward M. Kennedy,
Ranking Minority Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC.
Dear Chairman Enzi and Senator Kennedy: On behalf of Michael
Neason, who testified for the American Society of Safety Engineers
(ASSE) at the Committee on Health, Education, Labor, and Pension's
March 2, 2006 hearing on the State of Mine Safety and Health, please
find below his direct answers to the separate questions provided by
you. Your interest in Mr. Neason's views is greatly appreciated by ASSE
as well as Mr. Neason, as is the overall leadership your committee is
providing in finding better directions to making this Nation's mines
safer workplaces.
If Mr. Neason or ASSE can provide any additional assistance or
further clarification, we hope that you will not hesitate to ask.
Below, please find Mr. Neason's responses to your questions.
Question 1. As I am sure you are aware, much of overall regulation
of workplace safety focuses on the elimination of potentially dangerous
conditions. Some have criticized this approach because it does not
adequately address the issue of human error or behavior that is often
an element in workplace accidents. Do you have any suggestions as to
how we might address this issue more directly, or completely?
Answer 1. Our internal trend analysis studies would certainly
support your concern that behavior issues are often behind many of the
injuries in mines. Nearly 80 percent of our injuries happen during
unscheduled (or ``breakdown'') maintenance, and practically all of
those injuries are the result of an employee taking an unnecessary
risk.
It has taken a great deal of work over the years to advance our
program to the point where physical hazards are routinely identified
and corrected before they can cause an accident. As a result of these
efforts, our facilities are more efficient, more profitable and we are
better able to retain good employees.
In other words, our health and safety program has advanced
considerably since 1977. MSHA's has not kept pace with this
advancement. While the MSHA inspectors I have walked with seem to
understand this reality, their responsibilities under the Mine Act
limit their ability to focus adequately on the areas that truly need
attention. As such, MSHA's compliance activity routinely fails to
consider either accident trends or risk assessments. For the most part,
the citations that are issued do not correlate with fundamental
controls commonly acknowledged as the primary causes of most injuries.
To address the issue, MSHA should de-emphasize the ``gotcha''
enforcement of broad standards in favor of emphasizing positive
initiatives such as their ``Small Mines Office,'' ``Educational Field
Services'' and ``S.L.A.M.'' programs. With the current focus, operators
are encouraged to dedicate resources to satisfying regulators as
opposed to protecting their employees.
Question 2. How often does MSHA come to the mines you supervise?
What is your evaluation of the efficacy of MSHA's inspection policy?
Answer 2. In 2005, MSHA inspected the 21 mines I supervise 45
times. We were issued a total of 38 citations with all but 5 being
marked as ``not significant or substantial.'' Each inspection took 2 to
3 days to complete. Essentially, MSHA dedicated over 100 inspection
days to a solidly performing operator who maintains an incident rate
less than half of the national average.
The difficulty with MSHA's inspection program is that it denies
them the flexibility to allocate resources where they are truly needed.
There should be some means for an operator to earn a ``good performer''
status that would allow MSHA to inspect the facility less often or
possibly to conduct an abbreviated inspection. This would improve miner
safety in two ways. First, MSHA would free up resources enabling them
to focus on operators who could benefit from greater oversight. Second,
it would provide an incentive for well-meaning operators to tighten
safety standards in an effort to earn their ``good performer'' status.
There is something fundamentally wrong when a safely run quarry is
constantly scrutinized by one Federal Agency (MSHA) while a shoddily
maintained asphalt plant on a neighboring property has never even seen
an OSHA inspector. While the Mine Act demonstrates that the Government
values a quarryman's life above that of a construction worker, it is a
tremendous disincentive to the conscientious quarry manager to bear the
brunt of multiple annual inspections that do not correspond to saving
lives or preventing injuries.
Question 3. One thing we all seem to agree on is that miners in
this country need to have better communications technology available to
them. At the subcommittee roundtable that Senator Isakson and Murray
hosted last week, it was apparent that while there is some technology
commercially available that may allow miners in some mines to receive
text messages, however, for the most part the communications technology
we all dream of is not yet on the market for mining applications. Do
you have any thoughts on what we can do to parlay the expertise and
resources of NIOSH and MSHA and private industry to create and
manufacture this technology?
Answer 3. I would like to believe that this issue is somewhat more
complicated than a simple matter of ``supply and demand,'' but it most
likely is not. With all of the pressure to have instant and effective
communications equipment for all miners in all mines, we have to
prudently determine the most appropriate way to create the demand for
technology that will actually improve safety in each application.
In this era when communications products are actively being
developed, it makes the most sense to provide a positive incentive for
mines to experiment with technology, or perhaps a highly managed set of
pilot projects through a cooperative effort between NIOSH and MSHA. I
am afraid that the effect of a regulatory standard mandating the use of
advanced communication equipment would be to encourage operators to
adopt the cheapest system that would meet the minimum requirements.
This would stifle the development process and leave the miners to rely
on sub-standard equipment. Better to first encourage experimentation.
Then, once this practical experimentation yields a pool of options that
have proven successful in a variety of applications, we could consider
mandating systems with specific elements of functionality.
questions of senator kennedy
Question 1. Since your testimony acknowledges that some mines have
inadequate breathing protections and obsolete communications systems,
while other mines go beyond what is required, shouldn't we require all
mines to aim high and meet a high standard for safety?
Answer 1. As a safety professional, I wholeheartedly agree that all
employers should be required to meet a high standard for safety. The
trouble with this particular problem is that there is no existing
technology that can fundamentally perform to the degree necessary to
satisfy any meaningful standard that would be written.
As I indicated above, I fear that a regulatory standard at this
point might actually be counter-productive. If we require operators to
implement underdeveloped communications technology, they will be
inclined to select the most cost effective option that meets the
broadest interpretation of the standard. At that point, the demand for
the technology drops off and development will stall. It might be more
prudent to begin with positive incentives for operators to implement
advanced communications systems. This will have the effect of driving
the demand for such systems, which will, in turn, encourage both
competition and technological advancement. Once proven systems are
identified, a more effective standard can be written that will provide
a higher level of protection to miners.
Question 2. With regard to your suggestion that onsite rescue team
and 15-minute accident notification requirements may be unachievable
for small mines, wouldn't you agree that the life of a miner is equally
valuable, whether he works in a small mine or a large mine? Do you have
suggestions about how we can help small mines comply with strong safety
protections without exposing their miners to greater risk?
Answer 2. As many of the mining operations I oversee employ less
than 12 people, I appreciate your sentiment that miners deserve the
same level of protection whatever the size of their mine.
The 15-minute notification requirement, however, is unworkable no
matter the size of the operation. MSHA is not a first responder and the
first critical moments after an accident should not become even more
complicated than it already is with a reporting requirement that
detracts from immediate response and care or miners.
In regard to onsite mine rescue teams, it is important to recognize
the key element that makes these teams so special. That is the fact
that every team member is a dedicated volunteer who willingly risks his
personal safety to rescue another miner in a very hazardous
environment. Small operations may not have six able-bodied employees
who are willing to accept such a risk, much less endure the harsh
physical requirements of the job.
As such, the current consortium option actually offers the best
possible response in the event of an emergency. To improve the
response, however, I would suggest a provision that mandates any group
exercising this option to hold practical rescue training exercises in
each mine they will cover. Further, I support the idea of reducing the
current requirement of locating teams within 2 hours ground travel to
require teams to locate within 1 hour of the mine to which they are
responding.
Question 3. In countries such as Australia, mine operators are
required to perform a detailed and rigorous risk analysis before they
begin operations. Is this kind of risk analysis done in any of the
mines you are familiar with? Should this kind of comprehensive and
continuing risk analysis be required in American mines?
Answer 3. I am admittedly not familiar with the Australian
requirement referred to in the question. In the United States, however,
MSHA enforces several different standards that require the examination
of working places, ground conditions, tools and mobile equipment each
shift and again as conditions warrant.
Risk assessments themselves are very detailed and structured
exercises that give tremendous insight on the best allocation of
resources to provide the highest level of protection for an
organization's employees, the public and the environment. Progressive
companies employ this technique at measured intervals to ensure that
their controls are still appropriate. My company, Hanson Aggregates,
employs a formalized risk assessment program for our mining operations.
The Job Safety Analysis (JSA) may be a more appropriate tool to use
in addition to the examinations already required. This is a technique
for identifying each step of a job and addressing the potential hazard
of each step. MSHA is currently promoting a form of this in their
``S.L.A.M.'' campaign, which encourages miners to Stop, Look, Analyze &
Manage hazards.
Question 4. With regard to your concern that different mines and
industries face different health and safety risks, wouldn't you agree
that in an accident in any underground mine, in order to ensure the
safety of the miners, miners must be able to communicate with rescuers,
be located, have sufficient oxygen, and have access to either an area
of refuge or an escape route?
Answer 4. More importantly, it is critical to first have a warning
system to alert miners that they should evacuate the mine or implement
the proper emergency response plan. Beyond that step, all mines will
have very different needs that will be primarily dictated by their
ventilation and egress.
While it is true that the safety assurances presented in the
question are important in some entrapment scenarios, the degree to
which they would be needed and the means by which they should be
provided are still very different. Miners in a 36-inch coal seam will
have an immediate need for breathable air that miners in a 36-foot high
stone mine will most likely not have. Those who work in single leveled
horizontal mines will not have the complex escape issues that miners in
a vertical shafted multiple level facility will. Mandating controls
that do not fit individual applications will have a negative impact on
safety.
Again, thank you for including Mr. Neason in the March 2 hearing.
If there is anything ASSE can do to support the committee's efforts, we
trust your staff will not hesitate to ask.
Sincerely,
David L. Heidorn, JD,
Manager of Government Affairs and Policy.
______
Response to Questions of Senator Enzi and Senator Kennedy
by Michael Peelish
questions of senator enzi
Question 1. As I am sure you are aware, much of overall regulation
of workplace safety focuses on the elimination of potentially dangerous
conditions. Some have criticized this approach because it does not
adequately address the issue of human error or behavior that is often
an element in workplace accidents. Do you have any suggestions as to
how we might address this issue more directly, or completely?
Answer 1. While MSHA and the industry cannot abdicate their
responsibility to control potentially hazardous conditions, a strong
focus must be paid to development of the individual employee's safety
consciousness and individual accountability for workplace safety.
Research has shown that changing behaviors will reduce serious injuries
and fatalities. DuPont, a world leader in safety, estimates that 90
percent of all accidents are caused by unsafe acts. With the dynamic
and changing face of this industry's workforce, instilling these basic
principles in our newer employees is especially critical at this
juncture.
To change behaviors requires a more systematic approach to
workplace safety and health. For instance, management must install a
methodical approach to reviewing the mechanisms of injuries in planning
work tasks. For any task, there will be risks. If a plan is developed
to address those risks before the job is started, then the probability
of injury is reduced. The mechanism of injury can be eliminated or
barriers constructed to prohibit the mechanism from causing injury. How
can this be done? For some operators, systematic approaches are already
incorporated in the work tasks. However, this is not true for many
operators because they do not have the skills or competencies to
address these issues. Requiring operators to have a more behavioral-
based safety program is paramount versus the current reactive programs
concerned with compliance. Current Part 48 safety training does not
address behavioral-based safety training. Part 48 could be revised to
eliminate repetitive and wasteful training to require operators to
train its miners in behavioral-based safety training. For instance:
Redefine what should be required for hazard training;
Revamp annual refresher training to be performance based
versus the current mundane prescriptive training;
Revise task training to address more of the behavioral
safety performance and less of the ``paper chase'' safety training
required for each task or piece of equipment. Now, task training is a
regulation used to second-guess an operator during a postaccident
review;
Revamp how contractors are hazard trained at a mine based
on the tasks a contractor is performing such as mine laborer,
specialized skill sets for specific jobs performed such as seal
construction or roof gluing, and/or work functions such as tire
maintenance or drilling and blasting.
Each of these tasks requires a different type of training versus
the one-size fits all training currently mandated by the regulation.
The other aspect to improving behaviors is accountability at the
miner, management, and MSHA levels. The accountability of miners and
management is management's prerogative. The accountability of MSHA can
only be achieved based on the improved incidence rates at mines.
In the mid-1990's, Foundation Coal's predecessor was involved in a
MSHA and industry ``informal partnership'' effort to reduce surface
haulage accidents. The approach taken by a small team was to create
best practices. In all, the team developed 20 or so best practice cards
involving large truck blind spots, lighting on waste dumps, seat belt
use, and dumping on waste dumps. These laminated cards were shared
primarily with small operators who did not have the resources to create
such programs on their own. In some cases, better technology was part
of the solution. The bottom line was that valuable information was
available to operators.
Another approach is the SLAM (Stop-Look-Analyze-Manage) program
initiated by MSHA last year which was developed in a mine formerly
owned by Foundation Coal's parent in Australia and which focuses on
individual's taking responsibility and accountability for risks
assessments. Similar programs are in place elsewhere in the industry.
The SLAM program was well-intended, however, this program has not taken
off because MSHA's approach is to focus on the mine not on the miner.
Intuitively, many folks within MSHA believe in behavioral safety
training, however, the Mine Act does not permit MSHA to effectively
follow through on this concept. For instance, MSHA is obligated to
inspect every roof bolting machine for compliance but it is not
obligated to observe any roof bolter for safe work performance. If
prevention of injuries is the Agency's objective, it must be allowed to
direct its resources and attention to innovative approaches that
increase the likelihood of reducing accidents rather than remaining
wedded to the conventional inspection regime.
Question 2. You are a lawyer as well as a mining engineer. One of
the proposals that have been put before this committee would prohibit
the Mine Safety and Health Review Commission from ``decreasing'' any
civil penalties for ``flagrant'' or ``habitual'' violations. Does this
provision raise any concerns with regard to the Constitutional right to
due process in your mind?
Answer 2. Such a proposal strikes me as at odds with fundamental
notions of fairness and due process. It removes any opportunity for
operators to a fair and meaningful hearing on whether the proposed
penalty is supported by the underlying facts of a citation issued by
MSHA. In short, operators would have no right to a hearing on matters
related to the proposed sanction associated with an alleged citation,
i.e., the civil penalty. Such an approach would make civil penalties,
in certain cases, ``unreviewable'' at the request of the operator, yet
remain subject to increase at MSHA's request or upon the commission's
own initiative.
The very notion that sanctions proposed by an Agency are insulated
from review by an independent tribunal is, as far as we are aware,
unprecedented. For all practical purposes, this approach simply
deprives a charged party with the right to be heard and present
evidence on whether the alleged conduct ever took place and whether,
even if it did, the conduct amounted to a violation of the Mine Act.
Although we have grave doubts that it would pass constitutional muster,
proponents of this approach would be hard pressed in justifying that
such an unusually harsh and unfair administrative review process should
only apply to safety and health laws or the mining industry.
Question 3. One thing we all seem to agree on is that miners in
this country need to have better communications technology available to
them. At the subcommittee roundtable that Senator Isakson and Murray
hosted last week, it was apparent that while there is some technology
commercially available that may allow miners in some mines to receive
text messages, however, for the most part the communications technology
we all dream of is not yet on the market for mining applications. Do
you have any thoughts on what we can do to parlay the expertise and
resources of NIOSH and MSHA and private industry to create and
manufacture this technology?
Answer 3. There may be many methods with the potential to be
further developed into systems which may someday enhance communications
systems for miners. In all practical day to day communication systems
presently available, both power for the system and the system backbone
must be inside the mine. These systems work well for daily activities
and for all but the most catastrophic incidents such as occurred at
Sago. To work on a system that will provide some type of communications
capability in that type of event is a technological challenge. Let us
not forget the Paredo concept and basic risk assessment. We may be able
to develop a system that will provide communications to most miners in
most emergencies, whereas, it may be totally impractical to develop a
system that provides communications to all miners in all emergencies.
This process of reviewing emergencies communications has started
through the NIOSH sponsored Mine Emergency Communication partnership.
This partnership has the governmental, industry and labor expertise to
move forward. However, what it needs are the resources to evaluate
possible technologies currently offered by commercial companies and/or
maintained by other agencies such as the Department of Defense and
NASA. Then because the market place is so small, the concepts of
incentives or subsidies must be considered. To develop new technologies
is not in the best interests of manufacturers if the market place is
less than several thousand underground mines.
Question 4. During today's hearing we discussed a number of
existing and adaptable technologies and equipment which would aid in
postaccident rescue, but we did not discuss the cost of this
technology. Can you estimate how much it would cost to install these
respective technologies and equipment, including communication devices,
locator devices, additional oxygen equipment and refuge chambers?
Answer 4. This is a difficult question at this stage of the
process. Foundation Coal has done a quick assessment based on the West
Virginia law considering additional self-contained-self-rescuers and
safety chambers for 3 large mines and 5 small mines and the estimated
cost is approaching $9.0 million. This does not include communications
or tracking systems which will most likely exceed this cost figure.
Because the West Virginia law is so prescriptive, the mine operator is
not allowed to innovate on how it provides, for instance, additional
supplies of air. Rather, it has been told what it shall provide and how
to provide it. Again, prescriptive regulation increases costs
unnecessarily.
Congress was told that a communications system such as the PED
system could be installed for as little as $25,000. This system for a
moderate size mine is more likely to exceed $400,000 in equipment,
installation costs and maintenance upkeep.
Further, tracking devices were stated to be $25 per device. The
costs associated with the backbone needed to operate these trackers,
transponders power suppliers, etc., will approach the levels mentioned
for the PED systems and will not meet the goals of full mine coverage
that are being discussed by various groups--locating all miners at all
times.
questions of senator kennedy
Question 1. As Foundation Coal has mines that use the PED
communications systems, doesn't it make sense to require the use of PED
messaging in all mines as part of an array of overlapping
communications devices while we await the development of better and
more versatile systems?
Answer 1. As noted in National Mining Association's written
testimony, Foundation Coal used the PED system effectively in Utah in
1998 for initial one-way communication which was lost within minutes
after the initial text message was sent. Since then, Foundation Coal
has installed the PED system in two mines in West Virginia but because
it was unreliable in those mines, it was removed from the mines. As Dr.
Novak stated in his testimony before the committee, to place a
technology in a mine that does not work is not sound safety practice. I
would agree.
There is another practical issue that needs consideration. That is
mines with a PED system have an in-mine antenna that has the same
issues in an explosion as any other in-mine system. While certain
manufacturers promote systems without underground communications
relays, these systems are unproven in underground coal mine
environments and were not promoted by these suppliers for U.S.
underground mining applications until the recent tragic events. Other
manufacturers have a history of failing to support their systems or, in
the case of PED, advised operators that a surface antenna was not
recommended for their underground mining operations.
Redundant communications systems are found in most mining
complexes. Foundation Coal operates mines with two communication
systems--a phone system and an in-mine ``Leaky Feeder'' antenna that
provide two-way communications via hand held radios. To mandate
Foundation Coal mines add a PED system would in all likelihood result
in the decision to limit support of the leaky feeder system.
I believe that there may be more effective ways to provide sound
day-to-day communications in mines that will provide communications for
all but the most catastrophic event. That is why the industry is
participating in the NIOSH-sponsored partnership formed to review mine
emergency communications.
The National Mining Association member companies applaud Congress'
interest in improved mine communication. We encourage the Congress to
provide incentives to manufacturers, operators, and the agencies to
develop better communication devices. We caution, however, against
providing a monopoly through the mandate of one technology, however
artfully marketed, that will not provide an answer to the issue of
paramount importance at this time--improved ``emergency'' mine
communications.
Question 2. Do you agree that mine companies should be required to
repeatedly update their oxygen, safety training, and communications
equipment and procedures used in mines so they reflect the newest
available technology? If we fail to require continuing updates, don't
we run the risk of finding ourselves where we are now with mine safety
technology that has failed to keep pace with changes in the industry
and increased production?
Answer 2. There is an assumption in your question that the industry
had not been updating its technology, equipment, and procedures. A
variety of effective, mine worthy communications systems are utilized
in the United States, which have served us well. Many mines have caches
of oxygen self-rescuer units available in caches underground in excess
of legal requirements. Acting in a proactive manner, mines have
installed early warning fire detection systems on conveyor belts and
other key locations and mines continue to install the latest PLC
systems that provide more reliable ``fault'' detection for systems
including conveyor belt systems. Also, many mines have installed the
proximity shutdown devices on continuous miners to eliminate crushing
accidents. And the list goes on. Safety training and safety systems
have also been continually improved. Many mines have been implementing
more rigorous fire fighting training. Also, many operators have
implemented safety processes including Safe Behavior Reinforcement
programs.
Can we do more? Yes, there is always new technology or ideas that
when proven reliable the industry will willingly implement. The NIOSH/
Industry partnership leading the development of the personal dust
monitor is an excellent example.
We assert, however, that safety training will play a key role in
the improvement of mine safety in this decade. Nationwide we see a
dynamic change in our workforce as a new generation of miners enters
and the stable pool of experienced miners retires. The agencies should
be encouraged to devote their efforts to this key area and adequate
resources should be provided by the Congress to assure this new
generation of miners is provided with the necessary safety training
before entering the workplace.
Question 3. In countries such as Australia, mine operators are
required to perform a detailed and rigorous risk analysis before they
begin operations. Does Foundation Coal do something similar in its
mines? Should this kind of comprehensive and continuing risk analysis
be required in American mines?
Answer 3. Foundation Coal does perform risk assessments to varying
degrees at its mining operations depending on the nature of the
operations, e.g., continuous miner versus longwall or thick seam versus
thin seam. This process is a sound safety practice and should be
implemented at all mines. These assessments can range from an in-depth
review of ventilation, respirable dust control, roof control systems
and shield sizing before making a longwall system change, to a more
basic assessment of machine design and modifications to provide a work
platform for a dozer. Many of the risk assessments that are completed
do not follow a planned risk assessment program.
Also, Australia has essentially eliminated its in-mine inspection
program in deference to the risk assessment approach. The Australian
culture is built on the risk assessment process and miners are familiar
with how it works. The current United States regulatory scheme however,
does not give credit to the mine operator for doing risk assessments.
If MSHA were to require such a rigorous risk assessment, then its
mission must change from being a compliance only Agency to a risk
assessment Agency. Too much time is wasted by operators trying to deal
with deminimis issues rather than doing what is suggested by your
question.
Response to Questions of Senator Enzi, Senator Kennedy, Senator Hatch,
and Senator Byrd by John Howard
questions of senator enzi
Question 1. In addition to conducting research, I understand that
NIOSH often functions as the focal point for the exchange of ideas on
mine safety among the many stakeholders. Could you give us an idea of
how that process works, and if you believe there are ways that it can
be strengthened or improved even more?
Answer 1. The underlying causes of mining safety and health
problems may be well understood, but developing practical and effective
solutions can be quite difficult. Sometimes the solution to one problem
may actually exacerbate another problem, and so trade-offs must be
determined and acceptable solutions crafted. Mine workers and mine
operators bring unique expertise into the nature of the problems and
the efficacy of solutions. Often manufacturers and others can
contribute as well. When combined with NIOSH's scientific and
engineering expertise, this group of customers, stakeholders, and
researchers brings a critical collection of knowledge and experience to
bear on mining safety and health problems. Often times, these groups
are called together to examine very specific parts of a problem or
proposed solution, and afterwards there is no continuing collaboration.
In some cases, however, the problem is so large or widespread, complex,
and perhaps controversial, that a more formal and longer term
collaboration is indicated. We refer to these as ``Partnerships.''
Partnerships are integral to the NIOSH Mining Program. They
facilitate advances in the safety and health of U.S. mine workers.
Input from customers and stakeholder groups, which have inherent
knowledge and concern about the health and safety of miners, helps in
framing the problem and the possible solutions for which NIOSH research
is required. Collaborative research with our partners provides in-kind
contributions, such as equipment and test mine sites, to conduct
research. As mentioned previously, the partners often add expertise or
specialized experience to the research team, which is beneficial to the
research experiments and analysis and interpretation of the results.
This added expertise increases the likelihood that workable solutions
will be developed more quickly. Once solutions are demonstrated, the
existing Partnership then facilitates a more rapid and complete
transfer of knowledge and products to the mines. Some of the partners
that provide input are:
Labor
United Mine Workers of America (UMWA);
United Steelworkers of America (USWA);
International Union of Operating Engineers (IUOE).
Industry
Bituminous Coal Operators' Association (BCOA);
National Mining Association (NMA);
National Stone, Sand and Gravel Association (NSSGA);
Industrial Minerals Association-North America (IMA-NA);
Northwest Mining Association (NWMA).
In addition, a number of State organizations, universities,
manufacturers, and Government Agencies participate in research
partnerships.
Overall we are pleased with the use of partnerships. Partnerships,
though, to be truly effective are like business relationships--they
need to be nurtured.
For additional examples of our research partners, please visit the
mining evidence package for the NAS (National Academy of Sciences)
review at (http:www.cdc.gov/niosh/nas/mining/whatdoes-
partnerships.htm).
Question 2. Currently, NIOSH exchanges research data through
professional and academic channels already; however, I would be
interested in whether you believe this kind of valuable information
exchange might benefit from an additional formal or structured process?
Answer 2. NIOSH researchers participate actively in professional
society meetings, publish in cross-disciplinary journals, and take
other steps to become knowledgeable about problems and solutions in
related applications. In some cases, practices or technologies from a
nonmining application are adopted or modified to meet a mining need. In
other cases, mining developed practices are transferred to other
sectors where they are adopted or utilized in a similar fashion.
Overall, this process has worked satisfactorily. Nonetheless, the
recent focus on mine-disaster issues, including the roundtable
discussion conducted by the Senate subcommittee, has revealed
opportunities to improve this process.
Questions of Senator Kennedy
Question 1. Provide a breakdown of overall NIOSH (or predecessor
Agency) funding levels from 1990 through the present, including a
breakdown of the funds specifically designated for the Institute's mine
safety program.
Answer 1. The mine safety and health functions of the former Bureau
of Mines transferred to NIOSH in 1997. $31,913,000 transferred to NIOSH
to support the mining operations in Pittsburgh, Pennsylvania, Spokane,
Washington and Lake Lynn, West Virginia. Congress appropriated an
additional $5 million to support these operations in 2005.
The following table outlines total dollars spent by NIOSH on
mining-related research since 1997. In addition to funding appropriated
to NIOSH specifically for these activities, NIOSH also invests other
occupational safety and health dollars into high priority mining
research. NIOSH does not hold the official budget records for the
mining program prior to its transfer from the Bureau of Mines in 1996.
NIOSH Mining Earmark Fiscal Year 1999-Fiscal Year 2006
------------------------------------------------------------------------
Funding ($ in
Fiscal Year thousands)
------------------------------------------------------------------------
2006.................................................... $37,948
2005.................................................... $37,960
2004.................................................... $33,863
2003.................................................... $36,111
2002.................................................... $39,886
2001.................................................... $39,354
2000.................................................... $36,678
1999.................................................... $35,620
1998.................................................... $33,934
1997.................................................... $32,063
------------------------------------------------------------------------
Question 2. Describe how funding levels have affected the
Institute's ability to conduct studies, research, and testing of mine
safety equipment and processes, including a list of any specific
initiatives that the Institute has canceled, curtailed or abandoned
because of insufficient funding over the last 10 years.
Answer 2. NIOSH has had to target its mine safety and health
research activities toward the most urgent research needs identified in
collaboration with our customers and stakeholders.
Examples of specific areas that were not fully funded include:
1. Explosion prevention research.
2. Research to develop technology to remotely install mine seals
during mine fires.
3. Blasting and explosives safety research.
4. Technology development of promising concepts.
5. Investigation of Methane Control Issues in Underground Mines.
Question 3. Describe any equipment or facilities that the Institute
has failed to maintain or modernize because of funding shortages. Is it
true that the Institute operates a mobile chest x-ray van but can only
afford to use it for 2 weeks out of the year?
Answer 3. The Mine Roof Simulator, which is used to test mine
support systems, has not had a major overhaul and upgrading of its
computer systems since it was constructed almost 30 years ago. It is
the only facility in the United States capable of conducting test of
new and innovative roof support technology.
Large-scale fire and explosion prevention and mine rescue research
is conducted at the Lake Lynn Laboratory and Experimental Mines, which
is a leased facility. Efforts to maintain and modernize have been
limited because the lease is set to expire in September 2008. This is
the only facility in the United States for conducting explosion
prevention research.
Other facilities that have been identified as needing maintenance
and modernization include the Coal Face Methane Control Laboratory, the
Longwall Dust Gallery, and the Pittsburgh facility.
As far as the mobile chest x-ray unit, we are able to use the van
more than 2 weeks out of a year. In 2006, NIOSH received funding to
operate a mobile chest x-ray unit that will visit a minimum of two
regional areas per year (time spent at a location will vary based upon
the number workers to be screened, etc.). These regions have been
designated through surveillance data as areas of high prevalence for
coal workers' pneumoconiosis. This project builds upon the mandates set
forth by The Federal Coal Mine Health and Safety Act, which directed
NIOSH to study the causes and consequences of the coal-related
respiratory disease. In cooperation with the Mine Safety and Health
Administration (MSHA), CDC-NIOSH is carrying out a program for early
detection and prevention of coal workers' pneumoconiosis (CWP) that
exceeds mandated requirements--the Enhanced Coal Workers' Health
Surveillance Program (ECWHSP).
MSHA initiated a pilot x-ray screening program (Miners' Choice
Health Screening) in fiscal year 2000. It extended screening to surface
coal miners and covered all costs of chest x-rays obtained under the
program. NIOSH supported the program by evaluating chest x-rays and
mailing results to miners. The Miner's Choice Health Screening program
detected pneumoconiosis in previously unscreened surface miners and
increased overall participation in mandated screening of underground
coal miners. MSHA's Miner's Choice program ended several years ago, but
its goals of increasing the availability of health screening and
participation by both underground and surface coal miners will now be
addressed by the ECWHSP, which is based in NIOSH and being conducted in
collaboration with MSHA.
The Enhanced program has the following goals: (1) implement an
outreach program to increase awareness and knowledge of CWP; (2) survey
health and mining conditions in areas with reports of CWP among young
or short tenure miners and/or rapidly progressive disease; (3) evaluate
the representativeness of the prior participants in the CWHSP, and
implement a statistical sampling strategy that will provide valid
estimates, including confidence limits, of the health and economic
burden of dust-related disease from the U.S. coal mining industry; (4)
investigate potentially remediable causative or contributing factors
for lung disease in current underground coal mines.
Question 4a. Has NIOSH done studies on the effectiveness of
different types of mine seals?
Answer 4a. The Bureau of Mines in the 1990's and now NIOSH have
conducted studies on the effectiveness of mine seals. The primary
purpose was to determine whether they met the 20 psi standard of 30 CFR
75.335 so that MSHA could determine their suitability for underground
coal mine use. In some cases, tests were conducted at higher pressures
to determine the ultimate strength of the seals. Upon request by MSHA,
NIOSH tests each new mine seal design subject to the requirements of 30
CFR 75.335 before MSHA can deem the design suitable for underground
coal mine use. In addition to the standard explosion test, NIOSH has
developed alternative testing methods for mine seals under hydrostatic
loading.
Question 4b. Does NIOSH have an opinion about the increased use of
foam--like Omega blocks, rather than traditional concrete, to seal
inactive areas of mines?
Answer 4b. Seal manufacturers design mine seals to meet the
requirements of 30 CFR 75.335. Before seal designs can be approved as
part of a mine ventilation plan, NIOSH tests these designs subject to
the static load requirements of 30 CFR 75.335. NIOSH does not form an
opinion about the suitability of different materials that manufacturers
use to construct various types of seals.
Question 4c. Do you believe that a 20 psi standard is sufficient to
withstand a major force explosion?
Answer 4c. The 20 psi standard proposed by MSHA is discussed in the
Federal Register, vol. 57, no. 95, p. 20887, May 15, 1992. The 20 psi
standard refers to U.S. Bureau of Mines Report of Investigations No.
7581 (1971). This report states that ``bulkheads may be considered
``explosion proof '' when they withstand a static load of 20 psig
provided that the area to be sealed contains sufficient incombustible
to abate the explosion hazard . . .'' It also states that ``gas-air
exchanges between sealed and open portions of a mine must be controlled
. . .'' The object of these requirements is to limit the possible
volume of flammable gases that can participate in an explosion. The 20-
psi standard may not be sufficient if these requirements are not met.
Given a mounting body of evidence, mines may not be able to satisfy all
of the requirements on which the 20 psi standard was established.
Therefore, we believe it is prudent to prepare research experiments to
reexamine the 20 psi standard.
Question 4d. Has NIOSH done any studies regarding the effectiveness
of the 20 psi standard since adopting it in 1992?
Answer 4d. NIOSH has examined all MSHA reports about major mine
explosions including the cases in which seals have been destroyed.
NIOSH Technology News No. 489 (2001) states that, ``if a large
flammable gas volume exists in the mined-out area, the resulting
explosion pressure can be greater than 20 psi.'' This finding was based
on MSHA Accident Investigation Report, Non-Injury explosion, Oak Grove
Mine, July 9, 1997, which states that ``the propagating forces of the
explosion that destroyed the No. 29 seal were estimated to be greater
than 20 psi.''
References
Weiss E.S., Cashdollar K.L., Mutton I.V.S., Kohli D.R., Slivensky W.A.
1999. Evaluation of reinforced cementitious seals. Pittsburgh,
PA: U.S. Department of Health and Human Services, National
Institute for Occupational Safety and Health, Pittsburgh
Research Laboratory, RI 9647, 35 pp.
Sapko M.J., Weiss E.S., Cashdollar K.L., Greninger N.B. 1999. Overview
of NIOSH's Mine Seal Research. Paper in Proceedings of the 28th
International Conference of Safety in Mines Research
Institutes, (Sinaia, Romania, June 7-11, 1999), v. 1, pp. 71-
85.
Weiss E.S., Cashdollar K.L., and Sapko M.J. 2002. Evaluation of
Explosion Resistant Seals, Stoppings, and Overcast for
Ventilation Control in Underground Coal Mining. NIOSH,
Pittsburgh Research Laboratory, RI 9659, 48 pp.
Sapko M.J., Weiss E.S., Trackemas J.D., Stephan C.R. 2003. Designs for
rapid in-situ sealing. In: Proceedings of the 2003 SME Annual
Meeting, Cincinnati, OH, February 24-28.
Sapko M.J., Weiss E.S., and Harteis S.P. 2005. Methods for evaluating
explosion resistant ventilation structures. In: Proceedings of
the Eighth International Mine Ventilation Congress, The
Australasian Institute of Mining and Metallurgy, Brisbane,
Australia, July 6-8, 2005, pp. 211-219.
Scott, D.S. and Stephan, C.R., MSHA Accident Investigation Report, Non-
Injury explosion, Oak Grove Mine, July 9, 1997.
NIOSH Technology News No. 489 (2001), Reducing the Danger of Explosions
in Sealed Areas (Gobs) in Mines.
Stephan, C.R., Construction of Seals in Underground Coal Mines, MSHA
Report No. 06-213-90 (1990).
Mitchell, D.W., US Bureau of Mines Report of Investigations No. 7581,
Explosion-Proof Bulkheads (1971).
Question 5a. Describe the role of NIOSH in past proposals to
redesign the standard for emergency breathing devices, or SCSRs?
Answer 5a. Although MSHA and NIOSH are co-approvers for respirators
used in mining, NIOSH is responsible for maintaining or revising those
parts of 42 C.F.R. 84 which apply to emergency breathing apparatus,
including SCSRs.
Question 5b. What, if any, recommendations did NIOSH make during
the MSHA rulemaking process, or at any other time?
Answer 5b. In response to a MSHA request for information, RIN 1219-
AB44 dated January 20th 2006, NIOSH provided information proposing that
MSHA maintain the requirement that SCSRs rated for 1 hour duration be
maintained and that MSHA consider the number of 1 hour SCSRs that are
required to be provided for each miner. Both of these recommendations
are in the MSHA emergency standard.
In the NIOSH response to the MSHA request for information NIOSH
recommended that MSHA implement a mandatory registration program for
SCSRs. In the emergency rule MSHA did not implement registration but
solicited information on the appropriateness of collecting certain
information concerning the inventory of SCSRs in mines.
In another comment to the MSHA request for information NIOSH
suggested that more emphasis should be placed on inspection of SCSRs.
In the emergency rule MSHA does provide for more frequent training on
the use, care and maintenance of SCSRs.
SCSR Draft Standard
Also, since 2001, NIOSH has been working on draft standards for
Closed-Circuit Emergency Respirators (CCERs), a class of respirators
that includes SCSRs.
In 2005, as part of that process, NIOSH met twice with MSHA to
review and discuss the new standard.
SCSR Research
In the MSHA request for information, MSHA asked whether there are
more effective technology to protect miners than the SCSRs currently
available?
NIOSH responded potentially yes and described two technologies
worthy of further research. These are:
Hybrid System--a combination of an SCSR with an air
purifying respirator. Prototypes of this type of respirator were
discussed at NIOSH/MSHA sponsored Self-Contained Self-Rescuers
Breathing System Workshops (June and December 2005) held in
conjunctions with the National Technology Transfer Center (NTTC) of
Wheeling Jesuit University.
Dockable (piggyback) SCSR--Additional units would be
connected (snapped) to the initial SCSR thus eliminating the need to
make multiple donnings and would have similar benefits as a hybrid
system. This type of units is allowable under interpretations of
current MSHA regulations (30 C.F.R. Part 75.1714) which permits a 10/60
respirator.
Question 5c. How did MSHA respond to any recommendations made by
NIOSH?
Answer 5c. See comments to question 2 above. In response to the
NIOSH comments to the MSHA request for information, MSHA adopted two
NIOSH recommendations:
A. NIOSH recommended that the requirement for 1 hour rated SCSRs be
retained. MSHA retained the 1-hour rated SCSRs as recommended.
B. NIOSH recommended that MSHA determine the number of 1 hour SCSRs
that are provided for each miner. MSHA supported this recommendation.
MSHA is working with NIOSH on the proposed CCER standard.
Question 6. Provide any studies, opinions, or recommendations that
NIOSH has made with respect to mine conveyor belt flammability.
Describe if and how any recommendations were conveyed to MSHA and how
MSHA responded to the Institute's recommendations.
Answer 6. In the late 1980s, the U.S. Bureau of Mines, now NIOSH,
conducted a study, in cooperation with the MSHA Approval and
Certification Center, Triadelphia, WV, on the flammability of conveyor
belting. The study assessed the flammability behavior of conveyor
belting in a large-scale gallery test. The large-scale test results
were utilized to develop an improved laboratory-scale ventilated tunnel
fire test for flame-resistant belting (Belt Evaluation Laboratory
Test).\1\ \2\ The Bureau also prepared and submitted to MSHA fire
testing procedures and construction drawings for the Belt Evaluation
Laboratory Test in March, 1989.\3\
The Bureau of Mines presented the study findings at a public
meeting on MSHA's Conveyor Belt Flammability Program held on March 15,
1989, at the MSHA Approval and Certification Center.\4\ MSHA also
initiated a voluntary program by which belt manufacturers could submit
conveyor belt samples, free of charge, to be tested by the Bureau with
the new procedure.\5\ The Bureau constructed a test apparatus for MSHA
that was installed at its Approval and Certification Center and the
majority of the submitted samples under this interim testing program
were tested there by MSHA personnel.
MSHA published a proposed rule ``Requirements for Approval of
Flame-Resistant Conveyor Belts'' in the Federal Register on December
24, 1992.\6\ The proposed rule would have replaced the current small-
scale test procedure for approval of flame-resistant conveyor belting
used in underground coal mines with the more stringent Belt Evaluation
Laboratory Test. A public Hearing on ``Requirements for Approval of
Flame-Resistant Conveyor Belts'' was conducted by MSHA in Washington,
PA, on May 2, 1995. At this hearing, the Bureau of Mines presented a
statement \7\ that included the following:
``Conveyor belts that pass the proposed new test have improved fire
resistance and are much less likely to spread flame, which also reduces
the potential for a serious toxic hazard. The use of the improved fire-
resistant conveyor belts in mines would significantly reduce the risk
of severe belt fires. Based on these findings, the Bureau of Mines
recommends that the proposed new laboratory-scale test procedure for
approval of flame-resistant conveyor belts be adopted.''
The rule making process continued for several years and the
proposed rule reached the final rulemaking stage. On July 15, 2002,
MSHA announced in the Federal Register that the proposed rule
``Requirements for Approval of Flame Resistant Conveyor Belts'' was
withdrawn and presented its reasons for withdrawal.\8\
References
1. Lazzara, C.P. and F.J. Perzak, Conveyor Belt Flammability
Studies, Proceedings of the 21st Annual Institute on Coal Mining
Health, Safety, and Research, 1990, pp 119-129.
2. New Flammability Test for Conveyor Belting. Bureau of Mines
Technology News 377, March 1991.
3. Fire Testing Procedures and Construction Drawings for the Belt
Evaluation Laboratory Test, Bureau of Mines, March 1989.
4. Minutes of Public Meeting on MSHA's Conveyor Belt Flammability
Program, Mine Safety and Health Administration, Approval and
Certification Center, Triadelphia, WV, March 15, 1989.
5. MSHA letter dated February 9, 1989.
6. Requirements for Approval of Flame-Resistant Conveyor Belts,
Federal Register, Vol. 57, No. 248, Thursday, December 24, 1992,
Proposed Rules, 61524-61535.
7. U.S. Bureau of Mines Statement at the MSHA Public Hearing on
``Requirements for Approval of Flame-Resistant Conveyor Belts'', May 2,
1995, Washington PA.
8. Requirements for Approval of Flame-Resistant Conveyor Belts,
Federal Register, Vol. 67, No 135, Monday, July 15, 2002, Proposed
Rules, 46431-46432.
questions of senator hatch
Question 1. What is the annual budget for mining research at the
National Institute of Occupational Safety and Health (NIOSH)? Does this
program have its own line item in the budget?
Answer 1. The total budget for mine safety and health research at
NIOSH is $38 million. Of this amount, $31 million is used to support
research at the Pittsburgh and Spokane Research Laboratories where the
safety and health programs from the former Bureau of Mines are located.
The remainder of these funds supports health-related research in
respiratory disease studies, a component of the NIOSH program focused
on mining exposures causing occupational diseases, and the facility
costs for the Pittsburgh and Spokane operations. In the CDC budget,
occupational safety and health has its own line item, of which mining
is a component.
Question 2. It is my understanding that NIOSH inherited mining
research programs when the Bureau of Mines was eliminated in 1995. Do
you recall what annual budget for the Bureau of Mines was before it was
eliminated? How has the decrease in funding affected mine safety
research?
Answer 2. In 1994, the last full year of operation before closure
preparation was underway, the Bureau of Mines' spent $54.9 million,
excluding facility operating costs, on mining safety and health
research. In 1997, when the program was transferred to NIOSH, NIOSH
received $32 million, to continue the Bureau's mining safety and health
program, including facility costs associated with this program. In
fiscal year 2006, the budget is $38 million and the request for fiscal
year 2007 remains level.
With this funding level, NIOSH has targeted its mine safety and
health research activities toward the most urgent research needs
identified in collaboration with our customers and stakeholders.
questions of senator byrd
Question 1. What has NIOSH done with its $31 million annual budget
for mine safety?
Answer 1. Note: $32 million transferred from DOE to NIOSH to
support the mine safety and health functions of the former Bureau of
Mines. In fiscal year 2005, the total budget for mine safety and health
research at NIOSH was $38 million.
NIOSH's research and prevention activities have contributed to a
reduction in fatalities, injuries and occupational disease's in the
Nation's miners. Examples to illustrate the breadth and the general
types of NIOSH's contributions are:
Engineering Controls: NIOSH develops technology to reduce or
eliminate a specific hazard in the mine. Specific examples include:
Reducing the noise on continuous mining machines using
coated flight bars;
Improved seat design for low-seam shuttle cars;
Mobile roof supports for retreat room and pillar mines;
Control of horizontal stress in mine roofs to reduce rock
fall injuries and fatalities;
Ventilation technology for large-opening stone mines;
Methods to manage methane gas in underground coal mines.
Monitoring/Measurement: NIOSH develops measurement or monitoring
technol-
ogy to satisfy a critical safety or health need: Specific examples
include:
A real-time wearable personal dust monitor to empower
miners to reduce respirable dust exposure without having to wait for a
laboratory to return measurement results to them.
A coal dust explosibility meter to provide a direct
assessment of the potential explosibility of a coal and rock dust
mixture, to prevent dust explosions.
Training Miners: NIOSH develops training materials to allow miners
to perform their tasks safely, and NIOSH training packages have been
used by hundreds of thousands of miners. Specific examples include:
Electrical safety training to reduce overhead power line
injuries;
Interactive problem solving stories;
Mine training videos;
Western Train-The-Trainer Forum.
Training Rescuers: We train mine rescue teams and fire brigades at
our facilities, and also conduct onsite training for mine workers and
mine operators. Examples include:
Realistic training for mine emergency responders at our
NIOSH experimental mines;
Computer-based training simulation to prevent loss of life
during mine emergencies.
Best Practices: NIOSH identifies effective practices for removing
safety or health hazards, documents those practices, and then
disseminates them throughout the mining industry. Specific examples
include:
Reducing work-related musculoskeletal disorders in mining
in partnership with Bridger Coal Company;
System safety best practices to reduce injuries due to
malfunctioning computerized mining systems.
Engineering Guidelines: NIOSH develops design models and tools to
help safety professionals design safer and healthier mines. Examples
are:
Guidelines for reducing the probability of carbon monoxide
poisonings associated with trench blasting;
Guidelines for the safe use of waste motor oil in ANFO;
Guidance for applying proximity warning systems to surface
mining equipment;
Design guidelines for safe highwall mining systems;
Guidelines for coal pillar recovery.
Test Criteria: NIOSH develops criteria for testing materials and
products to ensure that they satisfy certain safety or health
objectives. Specific examples are:
Transfer of explosions and fire expertise and test
procedures to industry;
Testing of flammability of noise control materials;
Testing of flammability of conveyor belt materials.
Testing: NIOSH conducts a limited amount of testing in those cases
where it is uniquely able to do so. Examples include:
Testing of roof support devices at our mine roof simulator
facility;
Testing of explosives at the request of MSHA for
determination of the cause of accidents.
Scientific Foundation for Rulemaking: NIOSH conducts research to
provide a basis for regulations that will protect the safety and health
of miners, when requested by MSHA. Examples include:
Revision of the final MSHA rule on the interim diesel
particulate matter standard for underground metal/nonmetal mines;
MSHA high-voltage longwall regulations;
Proposed MSHA regulation to improve high-voltage
continuous miner electrical safety.
We conduct extensive research in the mines, and have conducted
onsite work at mines in nearly every State; we complement this in-mine
research effort with a robust experimental program at our unique mining
laboratories; and we have an aggressive program to transfer our
research into practice. Since we do not operate the mines or
manufacture the equipment used in the mines, our ability to transfer
our research to practice depends on the cooperation of others. We
depend upon the private sector to commercialize certain technologies,
the mining companies to employ our best practices, guidelines and
control technologies, and MSHA to adapt our findings into regulations
or to disseminate our findings in their compliance assistance
activities. We do not leave this transfer to chance. We form
partnerships with labor, industry, and Government organizations and
take other steps to improve the implementation of our work at the mine
level.
Question 2. What new equipment has been introduced into the mines
because of the work of NIOSH?
Answer 2. Evidence of NIOSH's impact is present throughout the
mines, as illustrated in the previous paragraphs. The introduction of
new equipment as an outcome of our research activities is one of
several mechanisms NIOSH has to impact safety and health in the mines.
Specific examples for underground coal would include: the mobile roof
supports used in nearly every coal mine pillaring operation; the
innovative roof supports that reduce roof falls; improved mine rescue
technology including directional lifelines, inflatable seals, and
rescue team communication systems; dust suppression sprays of the
shearer and the flooded bed scrubber on continuous miners that reduce
exposure to respirable dust, as well as a wide range of other dust
suppression technologies; the shuttle car seat that reduces lower back
injuries; and the quieter continuous miner conveyor chain that reduces
noise levels. Two recent equipment innovations that are ready to begin
transfer to the mine are the real-time personal dust monitor and the
coal dust explosibility meter. A more detailed description of the
impact of NIOSH's mining program is given in Chapter 3 of the mining
evidence package for the NAS review at (http://www.cdc.gov/niosh/nas/
mining/).
[Whereupon, at 12:40 p.m., the committee was adjourned.]