[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
PROTECTING THE HEALTH AND
SAFETY OF AMERICA'S MINE WORKERS
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 28, 2007
__________
Serial No. 110-17
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
-------
U.S. GOVERNMENT PRINTING OFFICE
34-100 PDF WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Ranking Minority Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Bob Inglis, South Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Timothy H. Bishop, New York Kenny Marchant, Texas
Linda T. Sanchez, California Tom Price, Georgia
John P. Sarbanes, Maryland Luis G. Fortuno, Puerto Rico
Joe Sestak, Pennsylvania Charles W. Boustany, Jr.,
David Loebsack, Iowa Louisiana
Mazie Hirono, Hawaii Virginia Foxx, North Carolina
Jason Altmire, Pennsylvania John R. ``Randy'' Kuhl, Jr., New
John A. Yarmuth, Kentucky York
Phil Hare, Illinois Rob Bishop, Utah
Yvette D. Clarke, New York David Davis, Tennessee
Joe Courtney, Connecticut Timothy Walberg, Michigan
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on March 28, 2007................................... 1
Statement of Members:
Altmire, Hon. Jason, a Representative in Congress from the
State of Pennsylvania, prepared statement of............... 63
McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
Committee on Education and Labor........................... 3
Prepared statement of.................................... 5
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Statement of Witnesses:
Dean, Jim, director, Extension and Outreach, West Virginia
University College of Engineering and Mineral Resources.... 20
Prepared statement of.................................... 22
Additional materials submitted........................... 64
Hamner, Deborah, wife of deceased miner George ``Junior''
Hamner..................................................... 28
Prepared statement of.................................... 30
Howard, Charles Scott, miner................................. 9
Prepared statement of.................................... 11
Additional remarks....................................... 12
Knisell, Chuck, miner........................................ 25
Prepared statement of.................................... 27
Lee, Melissa, wife of deceased miner Jimmy Lee............... 7
Prepared statement of.................................... 8
Oppegard, Tony, attorney at law.............................. 12
Prepared statement of.................................... 14
Roberts, Cecil, president, United Mine Workers of America.... 30
Prepared statement of.................................... 33
``Injury and Fatality Statistics by Union Status''
(table)................................................ 94
Watzman, Bruce, vice president of Safety and Health, National
Mining Association (NMA)................................... 16
Prepared statement of.................................... 17
``Mine Safety Improvements: Progress Facts'' (table)..... 95
Internet address to NMA report, ``Review of Mine Safety
Technology and Training Recommendations''.............. 95
PROTECTING THE HEALTH AND SAFETY
OF AMERICA'S MINE WORKERS
----------
Wednesday, March 28, 2007
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:30 a.m., in Room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kildee, Woolsey, McCarthy,
Kucinich, Wu, Holt, Bishop of New York, Altmire, Yarmuth, Hare,
Clarke, Shea-Porter, McKeon, Petri, Ehlers, Platts, Wilson,
Kline, Kuhl, and Heller.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
Lynn Dondis, Policy Advisor for Subcommittee on Workforce
Protections; Carlos Fenwick, Policy Advisor for Subcommittee on
Health, Employment, Labor and Pensions; Michael Gaffin, Staff
Assistant, Labor; Peter Galvin, Senior Labor Policy Advisor;
Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, General
Counsel; Thomas Kiley, Communications Director; Alex Nock,
Deputy Staff Director; Joe Novotny, Chief Clerk; Megan
O'Reilly, Labor Policy Advisor; Rachel Racusen, Deputy
Communications Director; Michele Varnhagen, Labor Policy
Director; Mark Zuckerman, Staff Director; Robert Borden,
General Counsel; Steve Forde, Communications Director; Ed
Gilroy, Director of Workforce Policy; Rob Gregg, Legislative
Assistant; Jessica Gross, Deputy Press Secretary; Victor Klatt,
Staff Director; Lindsey Mask, Director of Outreach; Jim
Paretti, Workforce Policy Counsel; Molly McLaughlin Salmi,
Deputy Director of Workforce Policy; Linda Stevens, Chief
Clerk/Assistant to the General Counsel; and Loren Sweatt,
Professional Staff Member.
Chairman Miller [presiding]. The Committee on Education and
Labor will come to order.
The purpose of this meeting this morning is to conduct a
hearing on protecting the health and safety of America's mine
workers.
I want to welcome everyone to today's hearing on protecting
the health and safety of America's mine workers.
Last year, the country was shocked by the accidents at
Sago, Aracoma Alma and Darby mines, which all came in quick
succession. In addition to the 19 coal miners killed in those
three accidents, another 28 coal miners died on the job last
year.
Many, if not most, of these 47 deaths were surely
preventable. Had the Mine Safety and Health Administration
heeded the warning signs after the accident at Brookwood,
Alabama, in 2001, for example, the miners at Sago and Darby
might well be alive today.
In 1977, recognizing it lacked the experience and the
expertise to deal with the myriad safety and health risks to
coal miners in other mines, the Congress established the Mine
Safety and Health Administration. The key question we must
examine is whether, 30 years after its creation, the agency is
adequately meeting the obligations imposed on it by the Mine
Safety and Health Act.
The recent record shows the agency has not adequately
fulfilled its obligation. Last year, the Democratic staff of
this committee issued a report that found numerous problems
with MSHA, from the way the Bush administration had stacked it
with industry insiders to the agency's failure to use its
authority to collect fines from mine operators that break the
law.
Under the Bush administration, MSHA has rolled back safety
and health rules and has shifted its focus away from enforcing
the law toward the so-called voluntary compliance assistance.
When MSHA fails to fulfill its obligation, fails to
establish and revise rules for safe and healthful mining in a
timely way, fails to ensure that each of the mine operators has
a plan that fully implements these rules or fails to enforce
these rules with trained inspectors and meaningful sanctions,
then miners' lives are put at an unacceptable risk.
This committee will hold additional hearings to give the
Bush administration an opportunity to explain its
implementation of the Mine Safety and Health Act of 1977 and
the MINER Act of 2006, and the committee will be interested to
hear the Bush administration's views on the causes of last
year's accidents, including a perspective on what else could or
should have been done to prevent them.
Of course, MSHA is not the only entity with responsibility
for the health and safety of miners. The industry bears the
responsibility, too. Mine operators who do not take the safety
of their employees seriously should not be allowed to mine coal
period.
We know that there are mines, both in this country and
abroad, that go above and beyond what is required of them to
keep their workers safe, but we also know that there are mine
operators who would rather pay their fines than change their
behavior. Rather than resist even the most basic safety
advances, the growing mining industry should work with us to
make every U.S. mine as safe as possible. Sadly, it appears
that the culture of change about which we have heard so much
has yet to take root.
The states play an important role in mine safety and
health, too. Just this year, the state of West Virginia
approved the use of five different types of underground
chambers that trapped miners can go to get oxygen, food and
water while they await rescue.
Had these chambers been installed at Sago, lives may very
well have been saved. If these chambers can help miners in West
Virginia, then they can help miners in Kentucky, Illinois,
Alabama or in other mining states.
Today, we will hear about instances where the states have
moved more swiftly than the timeframes set in the MINER Act. We
are going to hear today from loved ones of miners who were
killed on the job. We are going to hear from miners'
representatives and from the miners themselves.
I cannot emphasize enough how important it is for this
committee to hear from these witnesses. They know better than
anyone else how important it is for us to get it right. They
know better than anyone how critical it is that we do
everything in our power to ensure that miners can go home
safely at the end of their shifts.
I welcome all of our witnesses, and I thank you for taking
your time to educate us today. I promise that this committee
will work in a partnership with all of you to improve the
safety of America's mines.
With that, I would like to turn and recognize Mr. McKeon,
who is the senior Republican of the committee.
Mr. McKeon. Thank you, Mr. Chairman, and thank you for
convening this hearing.
As I look out and see miners and families of miners, it
brings back a little memory. My great-grandfather came from
Ireland, and they worked in the mines in Pennsylvania. Three of
them--I think it was three of them; the story is a little
sketchy--died of black lung disease. As bad as things are--
there are some tough conditions now--they were a lot worse
then.
But I am glad they came over. That is how I ended up in
this country.
Mr. Chairman, I want to thank you for convening this
hearing, and I welcome today's witnesses. In particular, I
would like to thank Ms. Lee and Ms. Hamner for joining us and
providing what I expect will be a moving and important personal
testimony.
I believe this hearing will build upon the mine safety
activities our committee and this Congress undertook last year.
I look forward to our continued dialogue, and I think that, as
we begin our discussion today, it is important to take a look
at where we have gone and, indeed, where we are headed next.
The most prominent mine safety activities this committee
engaged in last year occurred when our Workforce Protection
Subcommittee held a series of oversight hearings and briefings
during which we heard from federal mine safety officials, mine
workers, representatives from the mining industry and members
of the House.
An initial oversight hearing served to provide a general
overview of mine safety and health regulations from the
perspective of federal regulators, representatives of the
mining industry and those who work in mines, and another
hearing gave House members from both parties, including all
members of the West Virginia delegation, the opportunity to
share their unique perspectives on mine safety, simultaneously,
through briefings from federal Mine Health and Safety
officials, complemented the information gathered at these
hearings.
Aside from these informative hearings, however, our
oversight activities actually began months before that.
Immediately following last year's tragedy at the Sago mine, our
committee brought the U.S. Labor Department to the Hill to
detail for members and staff from both parties the events that
occurred, the Mine Safety and Health Administration's planned
response and how its investigation should proceed.
Shortly after, we worked with Representative Shelley Moore
Capito to successfully request that the department immediately
reverse an agency policy that barred public access to factual
information under the Freedom of Information Act, such as
inspector notes, until a mine safety case had been closed.
Our philosophy on this was simple: Families of miners
impacted by the tragedies, Congress and anyone with a stake in
the mining industry should have the best and quickest possible
access to meaningful facts about this case.
After these months of oversight activities, it became
abundantly clear that we needed better mining communications
technology, more modern safety practices inside U.S. mines and
improved enforcement of current mine safety laws. Each of these
needs were addressed comprehensively by the Mine Improvement
and New Emergency Response Act, otherwise known as the MINER
Act.
The bill passed the Senate without a single vote in
opposition, and it enjoyed support from two witnesses before us
today, Mr. Roberts from the United Mine Workers of America and
Mr. Watzman from the National Mining Association.
I would be remiss if I did not note that because of some
partisan wrangling by the party serving in the minority at the
time, this measure did not advance to the president's desk as
quickly as it should have. In fact, without this wrangling,
MSHA's implementation of the MINER Act would be further along
than it already is.
Nonetheless, politics aside, I was pleased to stand beside
members of both parties, as well as mine workers, their
families and industry officials last June to see this landmark
bill signed into law.
Today, more than a year after our oversight hearings on the
tragedies in West Virginia and Kentucky, we have seen progress.
MSHA has met each of its congressionally mandated deadlines to
implement the MINER Act, and similarly, labor and industry
leaders have been working in good faith to bolster mine safety
through available and ever-changing technology.
Just as my colleagues do, I am hopeful that this law can
and will be implemented just as quickly as possible, and in the
months ahead, just as we demonstrated last year, I am convinced
this committee will continue to track this issue closely and
fairly with the attention it deserves and with an eye toward
all stakeholders.
Mr. Chairman, I will be the first to admit that this is an
emotional issue. Having dealt with it as chairman of the
committee last year, I know that fact all too well. But I
believe--and I think we will see this very clearly today--that
our nation's mine workers are better off today than they were a
year ago, and it is the collective effort of all stakeholders--
employees, workers, academics, consumer advocates and
government--that has made it so.
If we allow ourselves to lose sight of this fact, then this
hearing will break with the record of action we accomplished
last year, and no one's purposes would be served.
Again, I thank you for bringing us together this morning,
and I look forward to hearing from each of our witnesses.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
Member, Committee on Education and Labor
Mr. Chairman, thank you for convening this hearing. I welcome
today's witnesses, and in particular, I'd like to thank Ms. Lee and Ms.
Hamner for joining us and providing what I expect will be moving and
important personal testimony. I believe this hearing will build upon
the mine safety activities our Committee and this Congress undertook
last year. I look forward to our continued dialogue, and I think that
as we begin our discussion today, it's important to take a look at
where we've been--and, indeed, where we're headed next.
The most prominent mine safety activities this Committee engaged in
last year occurred when our Workforce Protections Subcommittee held a
series of oversight hearings and briefings during which we heard from
federal mine safety officials, mine workers, representatives from the
mining industry, and Members of the House.
An initial oversight hearing served to provide a general overview
of mine health and safety regulations, from the perspective of federal
regulators, representatives of the mining industry, and those who work
in mines. And another hearing gave House Members from both parties--
including all Members of the West Virginia delegation--the opportunity
to share their unique perspectives on mine safety. Simultaneously,
thorough briefings from federal mine health and safety officials
complemented the information gathered at these hearings. Aside from
these informative hearings, however, our oversight activities actually
began months before that.
Immediately following last year's tragedy at the Sago Mine, our
Committee brought the U.S. Labor Department to the Hill to detail for
Members and staff from both parties the events that occurred, the Mine
Safety and Health Administration's planned response, and how its
investigation would proceed. Shortly after, we worked with
Representative Shelley Moore Capito to successfully request that the
Department immediately reverse an agency policy that barred public
access to factual information under the Freedom of Information Act,
such as inspector notes, until a mine safety case had been closed. Our
philosophy on this was simple: Families of miners impacted by the
tragedies, Congress, and anyone with a stake in the mining industry
should have the best--and quickest--possible access to meaningful facts
about this case.
After these months of oversight activities, it became abundantly
clear that we needed better mining communications technology, more
modern safety practices inside U.S. mines, and improved enforcement of
current mine safety laws. And each of these needs were addressed
comprehensively by the Mine Improvement and New Emergency Response Act,
otherwise known as the MINER Act. The bill passed the Senate without a
single vote in opposition, and it enjoyed support from two witnesses
before us today: Mr. Roberts from the United Mine Workers of America
and Mr. Watzman from the National Mining Association.
I would be remiss if I did not note that because of some partisan
wrangling by the party serving in the Minority at the time, this
measure did not advance to the President's desk as quickly as it should
have. In fact, without this wrangling, MSHA's implementation of the
MINER Act would be further along than it already is. Nonetheless,
politics aside, I was pleased to stand beside Members of both parties,
as well as mine workers, their families, and industry officials last
June to see this landmark bill signed into law.
Today, more than a year after our oversight hearings on the
tragedies in West Virginia and Kentucky, we have seen progress. MSHA
has met each of its congressionally-mandated deadlines to implement the
MINER Act, and similarly, labor and industry leaders have been working
in good faith to bolster mine safety through available--and ever-
changing--technology. Just as my colleagues do, I am hopeful that this
law can and will be implemented just as quickly as possible. And in the
months ahead, just as we demonstrated last year, I'm convinced this
Committee will continue to track this issue closely and fairly; with
the attention it deserves and with an eye toward all stakeholders.
Mr. Chairman, I'll be the first to admit that this is an emotional
issue. Having dealt with it as Chairman of this Committee last year, I
know that fact all too well. But I believe--and I think we'll see this
very clearly today--that our nation's mine workers are better off today
than they were a year ago. And it is the collective effort of all
stakeholders--employees, workers, academics, consumer advocates, and
government--that has made it so. If we allow ourselves to lose sight of
this fact, then this hearing will break with the record of action we
established last year, and no one's purposes would be served. Again, I
thank you for bringing us together this morning, and I look forward to
hearing from each of our witnesses.
______
Chairman Miller. Just so we can get all the partisan
wrangling out of the way at the beginning here, I would note
that the ``partisan wrangling'' to which Mr. McKeon referred,
which I am proud to be part of, was an attempt to try to
strengthen that legislation because of a number of shortfalls
that I and others felt that it had.
The second fact of ``partisan wrangling'' was the refusal
by the majority to hear from the families of those who died in
the mines. And we said at that time that should we have a
reversal of fortune in November that this was a hearing that
was owed to these families, and, today, we are delivering on
that promise.
Our first witness----
Mr. McKeon. Mr. Chairman?
Chairman Miller. Yes?
Mr. McKeon. If I may just shortly----
Chairman Miller. This is political wrangling.
Mr. McKeon. I totally agree with the chairman. He was
fighting to do more. I was in a position where we had a bird in
the hand. You know, sometimes we pass bills and they die in the
Senate. This bill that we did finally sign into law did pass
the Senate.
It was the majority's feeling, and many of the minority
members', that we would have liked to do more. Charlie Norwood,
who was subcommittee chairman of the committee, wanted to do
more. He has since passed away. I think we could have probably
done more, but it would have drug this thing out longer.
This is the first mining safety bill in 20 years, and while
we would have liked to do more, I think we should not have
partisan wrangling on this, and we really did not have it,
normal political wrangling. The chairman just did not want to
do more, and hopefully, we will be able to do that in this
Congress at this time.
Chairman Miller. The good news is we are going to give you
an opportunity to do more.
Mr. McKeon. Good.
Chairman Miller. Melissa Lee is a widow who lost her
husband, Jimmy D. Lee, in the Kentucky Darby mine explosion in
Harlan, Kentucky. She is the mother of four and has worked as a
small-business owner.
Charles Scott Howard is a coal miner from southeastern
Kentucky, and he has been a miner since 1979.
Tony Oppegard graduated from Notre Dame and received his
law degree at Antioch School of Law. From 1998 to 2001, he
worked for the Mine Safety and Health Administration as an
adviser to the Assistant Secretary of Labor. From 2001 to 2005,
he worked for the Kentucky Department of Mines and Minerals,
and he currently works as an attorney representing miners and
their family.
Bruce Watzman is a vice president of safety, health and
human resources for the National Mining Association. Mr.
Watzman holds a Master's degree in environmental health
management and an undergraduate degree in economics and
psychology. He has worked for the National Mining Association,
as president of the National Coal Association since 1980.
Jim Dean is currently the director of extension and
outreach in the College of Engineering and Mineral Resources at
West Virginia University. He is currently serving as chairman
of the West Virginia Mine Safety Technology Task Force. Mr.
Dean graduated from Fairmont State College and received his
Master's degree in mining engineering from West Virginia
University.
Chuck Knisell is a fourth-generation coal miner, and he
worked at several mines, including Sago mine, before the
explosion.
Debbie Hamner is the widow in the Sago mine disaster. Her
husband, George ``Junior'' Hamner, was a miner for 28 years,
and she continues to own his cattle farm.
Cecil Edward Roberts, Jr., is a sixth-generation coal miner
and has been president of the United Mine Workers of America
since 1995. He began working in the mines in 1971, served as
vice president from 1982 to 1995 and is the first president in
the history of the mine workers to serve three consecutive
terms.
Welcome to all of you. We look forward to your testimony.
Any prepared statements that you have will be placed in the
record in their entirety. When you start to speak, a green
light will go on. You will have 5 minutes, and then a yellow
light will go on, and that will suggest that you want to wrap
up your testimony so we will have time for questions.
Yes, Mr. McKeon?
Mr. McKeon. I appreciate the chairman's indulgence.
This does not happen too often, but I have a niece here
today--Erin, her husband Joe, and three of their children,
Rachel, Natalie and Justin. I just would like to honor them.
Chairman Miller. Welcome. Welcome. Thank you for being
here.
Rachel and Natalie, do you want to come up here and sit
behind here? We will make you an honorary member of the staff.
Come up here. Come on. You look at us through our eyes down
here. Feel free to leave any time you want. You are not a
prisoner.
You are, however. [Laughter.]
Welcome, and we look forward to your testimony. Thank you
so much for being here.
STATEMENT OF MELISSA LEE, WIFE OF DECEASED MINER JIMMY LEE
Ms. Lee. Thank you, Chairman Miller. It is an honor to be
here. I am glad you all invited me.
I am Melissa Lee. I am a widow from the Kentucky Darby
explosion, May 20, 2006.
That was the worst day so far of my life. At 3:39 a.m., I
received a phone call from Ralph Napier, the owner/operator of
the mine, that there had been an explosion and that my husband,
along with five other men, was still underground.
I was told to go to a local church near the mines to wait
for information about the explosion. The information did not
come quick enough. The widows, the wives, were receiving
information via telephone from other family members. They were
more informed than we were.
Paul Ledford was the only survivor. Paul and Roy Middleton
and I graduated high school together in 1988 from Evarts High
School. We were all friends.
My husband died doing an occupation that he loved. He loved
coal mining. My husband was a high school graduate from Cawood
High School. He enjoyed other things outside of mining, but
mining was what he wanted to do.
The devastation--I do not consider it an accident; it was a
devastation--has caused grief in our family. I have four small
boys that I am left raising: Hayden is 14, Brody is 12, Seth is
4, and Ross is 2. And every day these boys miss their father,
and I am left to be mother and father. It is difficult.
I closed my business after having it open only 1 year for
the fact that someone had to be there with the children and, in
the process, somebody has to keep speaking for the miners.
These men were not just coal miners. They were husbands,
fathers, grandfathers. They were men to be reckoned with.
My husband was partially decapitated. An O2 tank
impaled through his abdomen. My husband had a closed coffin. I
was not allowed to see this face that I had for 8\1/2\ years of
my life.
Jimmy was not just my husband. He was an awesome, awesome
man. He had at his memorials or service, his personal
memorial--I do not consider it a funeral--over 1,200 people
were there--1,200 people. No one could tell me one bad thing
about my husband.
He loved what he did, and because of that, there are other
miners just like him that deserve the same benefit that my
husband was not given. My husband died at the face of the
explosion. There was methane there that caused the omega blocks
to blow out.
He died instantly, I am told. If he had had his own methane
detector, he could have taken his own reading, possibly not
doing the job that he was taken to the explosion site to do.
House Bill 207 is not just a bill; it is common sense. The
things we are asking to pass are common sense: more
inspections, methane detectors, more information and education.
These things are not things to be toyed with.
These men who still go underground every day to provide aid
and support for their family need to be taken care of. Children
need their fathers to come home. Wives need their husbands
there. Mothers need to be able to hug their sons.
Roy Middleton was the only son of Nellie and Dan Middleton.
I am asking for you all to please take this story to heart.
This has to be passed. This has to become a law.
[The statement of Ms. Lee follows:]
Prepared Statement of Melissa Lee, Wife of Deceased Miner Jimmy Lee
I am Melissa Lee, widow of Jimmy D. Lee a miner that died in the
May 20th, 2006, Kentucky Darby Mine explosion in Harlan, Kentucky.
Jimmy and I have four sons and many broken dreams. We married only
after dating a very short time. We were to celebrate our 9th
anniversary in 2006, but that did not happen.
I was given a call at 3:39 am and told there had been an explosion
and that 6 men were underground. Jimmy being one of the trapped. I was
shocked to hear that all his close coworkers were trapped as well. Roy
Middleton, Paris Thomas, Bill Petra, Cotton ``Amon'' Brock and Paul
Ledford. I made the trip to the church I was told to go to and there I
found my seat to wait.
During the wait, we were told nothing for hours. The update
information came from people not even at our waiting spot. Paul Ledford
was the first and only to be found alive. All others were dead. I was
more than heartbroken.) was beyond numb) was dead myself.
During the next weeks, I was given calls always saying if they
could help, or if I or my sons needed anything to not hesitate and
contact them. That was a joke. The widows and myself were kept on the
low end--NO information given on the explosion, just promises of help.
State police were called to stand watch over the area of the
questioning of witnesses. I was told by the state troopers that they
were to keep us away from the doors and make sure we did not make a
scene. WE heart ripped out, tear stained and drained widows. I was
appalled at these choices. We were not a threat, but grief stricken.
I found out later through the autopsy report that my darling
husband had sustained blunt force and thermal trauma to his body during
the explosion. HE had part of his skull removed, impaled by a oxygen
tank and destroyed by heat and soot. He would have never survived. He
was asked by his foreman to stay behind to do a job. THAT job took him
from his wife, sons and life. I lost my best friend, the one I wanted
to grow old with. I was looking forward to having another child with
him. He is gone.
The explosion wrecked many, many lives. It has caused to many of us
to have to remap our lives. I moved away, closed my new business,
relocated my children to different schools they do not like, I have had
to make changes in things I should have never had to change.
The bill I worked for and think will save lives of other miners is
only one of common sense. It doesn't require much but the want to have
safe mining. I have family still underground. Three of these miners
have small children just like their cousins who lost their daddy to a
terrible devastation. This will keep these men/women safe and never let
what has happened in my life happen to other wives and children.
______
Chairman Miller. Thank you very much.
Mr. Howard?
STATEMENT OF SCOTT HOWARD, MINER
Mr. Howard. My name is Charles Scott Howard. I am a
southeastern Kentucky coal miner. I am glad to be here, and I
am glad that you are all here to listen to our testimony.
I started working in 1979, in the winter of 1979, in the
mines. I have always worked non-union, except the last couple
of years I worked for a company that has just a small union.
People that work there are in the union.
I have been fired for safety complaints, fired for refusing
to do unsafe work. I was fired once for not bolting the place
without an ATRS. An ATRS supports the top so you can bolt the
places falling in, and I refused to bolt it. So I was
terminated from that job, blacklisted in that county.
I went to another county to work, and a few years later, I
come back to Harlan County and worked. I was the foreman then.
I became a foreman.
When I started in the mines, I saw how foremen manipulated
the men. So I decided to become a foreman and try to make it
better. But foremen are mistreated, too, in the mines.
I take the air reading and stuff when you start your shift
on producing coal. I went in one morning, did not have any
ventilation. So I called out, told the superintendent no
ventilation. He said, ``Well, we will get you some air.''
So I went across the section and checked my faces, checked
my curtains, make sure I had everything right so that when the
air came into the mines that I would get it to the places I
need it where they were producing coal.
So I called back out--they never sent me any air--and I
told him when he sent me air, I would send him coal out. At
10:30 that day, they asked me how much coal I would run. I
said, ``I ain't run nothing. You ain't sent me no air.'' Well,
I lost that job.
So I quit bossing.
Where I work now, we have a little old union. It is not
much, but it is better than nothing. You have a little
authority on safety. I worked Monday night. I work now, I still
work in the mines, and I go to work tomorrow.
Now I do belts and fireboss where I work. I went up to the
section. I always go up to the section and see what the men are
doing, where they are mining. They know me. They know I am a
safety advocate and that I will help them any way I can.
I went up there and they were not running, and I saw some
of the guys sitting there. I said, ``What are you all doing
down there--a safety meeting or something?'' They said, ``No.
We hit gas up here.'' I said, ``What are you doing?''
I had a spotter with me and said, ``Come on up here and
check it for us.'' So I went up there and checked. I was up
there at the start of the shift, and there was a test hole in
the top, and there was not any gas coming out at that time. A
scoop man had come down, and he thought he busted a hose on his
scoop. He heard it, so he had to find somebody with a detector.
That is why I was pushing for this rule in Kentucky, the
House Bill 207, that every coal miner have a detector because,
see, this guy, he was running a battery scoop. If he had went
on down through there and the battery lid jumped up and come
back down and arced on those batteries, he would have been
traveling under that hole.
They found 3 to 5 percent methane coming out of it, and
when we left that shift, it was still coming out.
I heard somebody say earlier that coal mining has become
safer over the years. I have worked 28 years in the mines, and
it is not safer from the first day to tomorrow when I go back
to work. Laws have been passed to make it safer, but laws do
not mean nothing when you go down, when you go to work, when
they send you back in the mines.
Outside, safety is first. When you go underground, coal is
all that matters. I have had superintendents call underground
and holler, ``I do not care if you kill every man in there, I
want coal on the belt.''
I have heard them have problems and want extra men to stay
back and try to help produce coal or get to where you can run
coal. I have heard them say how many people have to stay back.
I have heard them say, ``If Jesus Christ is there, you make him
stay too.''
Coal is all that matters and the coal operator is the only
one who has a voice, the only one to educate the miners where I
work.
Where I work, I started putting up stuff on safety issues,
laws, bills to try to be passed, stuff about this day here. The
coal operator comes in, tears it down. So I go to the union,
say, ``I want to file a grievance.'' They say, ``If you file a
grievance, they will take our board down. We would have
nothing.'' I said, ``If we do not have a voice, we have nothing
anyway.''
I would like to just know that the truth is what people
know, and to know the truth, you have to come down to where we
work and come around some of the little stores and the hollers
and find out. Reporters have come. Listen to what they write
and say, and you will know the truth, what the miner needs
today. And I want to live.
[The statement and addendum of Mr. Howard follows:]
Prepared Statement of Charles Scott Howard, Miner
My name is Charles Scott Howard and as I have said before I am a
South Eastern Kentucky Coal Miner. I am not a hillbilly, I am a
mountain man forged from an ancestry of hardworking men and women who
wake up or did wake up day after day to survive. I was raised to
believe not only in God and his Word, but that there is a standard for
a man; to work, to take care of family, respect others and to stand up
for your rights. I never dreamed of being a coal miner when I was
growing up but my family ended up back in Eastern Kentucky when I was
in the 7th grade and the best chance of a decent wage was to be a coal
miner, but I didn't want to mine coal for I had watched my grandfather
suffer from his days in the mines, he lived a bad life because of what
the mines did to him and after they pulled him out of the mines it took
him about 30 years to die and his quality of life for these years was
not much.
In the winter of 1979 I started my career in the coal industry and
still mine coal today.
I started working on what they called a Wilcox Section. It
consisted of a small miner that was propelled into the coal by two
winches mounted on each side and a man would hook a jack onto the end
of a rope and wedge the jack between the roof and floor of the mine and
the winches would pull the augers into the coal and a conveyor chain
would take the coal down the middle of the mine and dump it into
another conveyor chain of a bridge connected to the miner and to
another bridge and then to a conveyor belt that would continue on in a
series of belt lines to the surface. The Wilcox mines were called Man
killers for they were a cheap mine made to extract seams of coal as low
as 24-25 inches. All the motors on the miners had fans to keep them
cool so there was no need for water. On other miners water was needed
to cool the motors and the water was then sprayed onto the coal being
cut as it left the motors thus suppressing the fine dust made as coal
is cut, so that meant that a Wilcox man would breath all this dust for
no water was needed. I can remember breathing so much dust that my
nostrils would completely stop up with dust and the back of my throat
and tongue would be caked with coal dust and you would swallow so much
dust your stomach would burn like fire from the sulfur and iron pyrite
that filled you up and you would cough and hack till you puked. The
dust was so thick that you could not see your partner 4 foot away who
would be setting timbers if he had any which was used as a sole means
of supporting the roof. Your eyelids would collect so much dust that
the grit would keep your eyes red and so sore and when you bathed, the
dusts rings around your eyes made you look like you had eyeliner on.
With your back against the roof and your hands and knees ambulating you
around as you done your duties the loud noise from the miner and
bridges, up to 20 decibels, deafened you as you wore out your back and
knees. The steel ropes that pulled this monster around that you hoped
wouldn't crush you if it decided to walk would splinter and when you
had to grab the rope to pull off another length the strands would
pierce into your fingers and hands keeping them sore and infected. I
remember my mom looking at my hands and crying. I worked on Wilcox
sections about 7\1/2\ years before I escaped them to a better form of
mining but not before receiving my first stages of Black Lung and
injuries to my joints and not before seeing many of my fellow workers
crippled up and hearing of others being killed in other Wilcox mines in
other areas. I thanked God I had escaped this form of mining called man
killers with my life.
A solid section was the next kind of mine I worked at. This kind of
mining is very old. You simply drill holes into the face of the coal in
a certain angle and fill them full of explosives. The explosion forces
the coal out into the entries and this is scooped up and taken to a
feeder that pours the coal onto a conveyor belt that carries the coal
to the surface. After a place is cleaned up of the coal that has been
shot down, a bolter comes in and drills holes in the top on four foot
centers and places roof bolts into them to support the roof from
collapsing. Then the process of drilling starts again. This seems
simple doesn't it, but there are things to be done to make this form of
mining safe. When a hole is drilled the first stick of power to be
placed in the hole is the cap stick which is a stick of powder with a
blasting cap in it. The purpose in this is to ensure that the blasting
cap will set off every stick of powder placed in the hole. This was not
done because the caps would be ordered with different lengths of wire
to ensure they reached the end of the hole to be wired up to detonate.
This practice was not done; the operator ordered shorter cap wires
because they were cheaper so we had to put the cap in the last stick
put into the hole. Usually every stick still went off but you are still
gambling on whether they will or not. The last thing to go into the
hole was a length of stemming we called dummies. This was done to
suppress the flame produced when the explosion was set off. You guessed
it right. We didn't use dummies to save cost for the operator, which I
might add was a very small savings. I worked the graveyard shift at
that mines and we were sent to this section to work usually without a
boss so no air readings or methane checks were made. One day a mine
inspector made this section and found 8% methane, this is a very high
amount being that 10% provides for the most violent explosion. The
operator was forced to buy a cutting machine so that the minimum amount
of explosives was used to separate the coal from the seams. I quit this
place when I found out the dangers we had been working in and again
thanked God for sparing my life again.
Another kind of mines I've worked at used continuous miners. These
miners are on track similar to a bulldozer and has a cylinder on one
end filled with carbon tipped bits to cut the coal and a scoop type pan
that gathers the coal and a conveyor chain carries it thru the middle
of this machine and dumps out the other end into a form of haulage that
takes the coal to a conveyor belt and then to the surface. This form of
mining produces more coal than anything I have ever worked around. It
also produces a lot more dust.
I still work at mines that use continuous miners today and I guess
I'll finish my career at these kinds of mines.
I could tell you mining stories for hours but I've told these few
to try to let you see first hand from a coal miner the issues we face
each day in the mines. Safety is a huge responsibility. The industry
must be held responsible for they have all the power and authority to
see that safety comes first.
Black Lung is still a big problem, compensation is still a big
problem and the inspectors and government that regulates mining is a
big problem. The problem is the coal industry has put forth too much
money to hide the truth.
______
Roxana, Kentucky.
This testimony is from Charles Scott Howard, a southeastern
Kentucky coal miner. This is just a bit more of my story to those who
would lend an ear to hear the trouble and turmoil that coal miners
face.
They say there are around 300 million people in the United States
of America and about 79,000 of those citizens are coal miners, that is
surface and underground, and almost 17,000 of those are like myself,
Kentucky Coal Miners. Coal produces over half of the electricity in
this nation. Electricity is a great service to this country and its
people and so few men and women work hard and long hours to bring this
natural resource to the people of this nation. The efforts of the coal
miner make this great nation strong and keeps Americans comfortable and
going even when darkness falls. What the American Coal Miner does for
the United States also benefits the world. In the past 2 years the
United States has exported around 50 million tons a year to other
nations. What a great accomplishment so few citizens of this nation,
but not without cost.
During my career, which is not over yet, I have wore out my
shoulders, knees and other joints in my body, I have had eye injuries,
a broken nose, cuts, strains, sprains, a closed head injury, spinal
cord damage and a broken back and my lungs have been filled with coal
and rock dust. I have also been poisoned, but I have never missed a
shift of work because of these things, except the eye injury. Why you
ask, because I work to do for my family and if I were to be a worker to
miss over an injury I would be labeled as a liability.
I love my country and my fellow coal mining brother and sisters and
I hope this nation would prove to love the small percent of its
population, ``The Coal Miner,'' to do such an enormous amount of
service to the nation by giving to its coal miners what they deserve.
Give back Black Lungs Benefits and Compensation for the worn out miners
who literally give their lives for their country.
I hope to share more with you all in the future.
Thank you,
Charles ``Scott'' Howard.
______
Chairman Miller. Thank you.
Mr. Oppegard?
STATEMENT OF TONY OPPEGARD, ATTORNEY AT LAW
Mr. Oppegard. Thank you for the invitation to speak,
Chairman Miller.
Chairman Miller. Is your mike on?
Mr. Oppegard. Thanks for the invitation to speak, Chairman
Miller. You truly are the champion of the coal miner in the
U.S. Congress, and we appreciate the work you are doing.
I am going to deviate from my prepared remarks.
We have a lot of outlaw coal operators in eastern Kentucky.
What Scott is talking about is nothing unusual. It is not an
aberration. We have some good operators, but we have a lot of
operators that all they care about is getting the coal out and
they will do whatever it takes to get it out and disregard the
laws.
We have miners working right now as we speak in eastern
Kentucky this morning that are working without ventilation
curtains being hung. They are working under dangerous roofs.
They are working with electric equipment being bridged out that
is bypassing the safety features.
It is commonplace, and most of those miners are afraid to
complain, although there is a federal law granting them the
right to refuse unsafe work, because if they complain, they
will be told to get your dinner bucket and go on to the house,
which means you are fired. That is exactly what is going to
happen to most miners.
I am proud to say I was Scott Howard's attorney in that
case he was talking about. He got fired for refusing to bolt
when his ATRS would not reach the roof. That is the hydraulic
shield that goes up against the mine roof and protects the roof
bolt machine operator from roof falls. His ATRS would not reach
the roof, he said he would not bolt, and they fired him, and he
did get blacklisted.
I am proud to be Melissa Lee's attorney. I am representing
four of the Kentucky Darby families as well as the survivor.
That was another dog coal mine. There was no reason for those
miners to die, other than the fact that they were cutting
corners on safety.
The House Bill 207 that Melissa referred to was a law that
we just had passed in Kentucky. It was signed by the governor
last week. It has a lot of provisions in there that exceed the
requirements of the federal law, and those are some of the
things we would like to see this Congress pass, some similar
provisions.
They are all common-sense provisions that were based on
accidents in Kentucky in the last 2 years. They do not do so
much in terms of helping miners after a disaster. These are all
provisions that help prevent disasters in the first place, help
prevent accidents.
So let me go over a couple of them.
The first thing is in Kentucky now, we have six inspections
per year. At this time last year, we had two in underground
coal mines. In the general assembly last year, we got it up to
three. This year, we are up to six, and four of those are
complete inspections, two are electrical inspections. For the
first time in Kentucky history, we have mandated electrical
inspections.
We would like the U.S. Congress to mandate six underground
inspections per year in all coal mines in America. If you do
nothing else, that is the best thing you could do for coal
miners. The more often you have inspectors under ground, the
more likely it is that they will see unsafe conditions that
could cause an accident, either fatal or serious nonfatal, to
try to prevent those accidents from occurring.
We have been stuck on four inspections per year in the
United States for the last 30 years. You need to have the will
to protect miners, allocate the money to protect miners, go up
to bimonthly inspections. It is the best thing that you could
do.
Some of the other provisions that we have in the Kentucky
law: We are now requiring two METs, mine emergency technicians,
on every shift, one of which has to be underground at all
times. That stems from an accident in December of 2005 where we
had a miner, both of his legs were severed in a mining
accident. The MET underground panicked and did not treat him,
and he bled to death. Had there been two METs there, even one
outside, his life would have been saved.
We had two miners killed in Harlan County in August of 2005
while retreat mining, which is the most dangerous type of
mining where you are pulling the pillars that hold up the roof,
and we now have in Kentucky a 48-hour notification requirement.
Any operator who is pulling pillars has to notify the state
enforcement agency within 48 hours that we are going to pull
pillars.
The state has to document that in writing, then has to
ensure that all miners have been trained on that pillar removal
plan, because what we found through the years is that almost
all accidents on pillar sections, miners have not been trained
in the plan. They are just told to get the coal out however
they can.
We also have a requirement now in Kentucky for preshift
examinations at all surface mines. It is a basic requirements.
The federal law requires preshift examinations for hazardous
conditions at underground mines, but not at surface mines. Now
in Kentucky, we are the only state that has that requirement
for surface mines.
Finally, we have a requirement now or a provision where the
state can issue subpoenas to investigate allegations of unsafe
working conditions, regardless of whether there has been an
accident or an injury. MSHA does not have that subpoena power.
As a matter of fact, even if there is a mine disaster like the
Kentucky Darby, MSHA does not have subpoena power, unless they
convene a public hearing.
MSHA as an agency does not have the will or the guts to
hold public hearings to find out why miners were killed. They
invite witnesses and then tell them, ``You have the right to
refuse to answer any questions. You can terminate the interview
at any time.''
Now in Kentucky, even without an accidents, if we have
miners who call and say, you know, ``We were required to work
under unsafe conditions,'' the state can subpoena those miners
and investigate.
Thank you very much.
[The statement of Mr. Oppegard follows:]
Prepared Statement of Tony Oppegard, Attorney at Law
Thank you to committee for invitation & to Chairman Miller for his
commitment to protecting the safety of America's miners; champion of
the coal miner in the U.S. Congress--compare to Sen. Paul Wellstone.
Acknowledge UMWA & President Cecil Roberts, who has dedicated his
life to making the mines safer for all miners, union & non-union.
Appearing on behalf of Appalachian Citizens Law Center of
Prestonsburg, KY; non-profit law office which represents coal miners in
safety-related matters.
My background: 27 years working for coal mine safety, particularly
o/b/o miners in the non-union mines of eastern KY (not a single union
mine--average mining height of 40-48 inches); 18 years litigating
safety discrimination cases under section 105c--miners fired for
refusing unsafe work (only attorney in the nation so specializing);
2\1/2\ years for MSHA in D.C.--advisor to Davitt McAteer; 4-plus years
as mine safety prosecutor for Commonwealth of KY (appointed by Gov.
Paul Patton); 2 years private practice, specializing in mine safety
litigation; lobbying work for ACLC.
KY General Assembly recently passed HB 207, which the ACLC and the
UMWA helped draft and lobbied for--signed last week by Gov. Fletcher.
Common sense safety provisions stemming from specific KY mining
accidents.
STILLHOUSE MINING--8/3/05--Harlan County--Russell Cole and Brandon
Wilder killed during retreat mining operations (removing pillars
holding up the mine roof); investigation showed none of miners trained
in pillar removal plan.
HB 207 requires 48-hour notice to state enforcement agency before
retreat mining operations begin/resume; state must ensure miners
trained on pillar plan--should require inspector to observe retreat
mining operations.
H & D MINING--12/30/05--Harlan County--Bud Morris bled to death
when legs severed after being run over by a ram car overloaded with
coal; mine emergency technician did not treat him underground or
outside.
HB 207 requires two METs on each coal-producing shift, one of whom
must be underground at all times.
KENTUCKY DARBY--5/20/06--Harlan County--Jimmy Lee and Amon Brock
killed in methane explosion at improperly constructed seal; Roy
Middleton, Bill Petra & Paris Thomas died of carbon monoxide poisoning.
HB 207 requires operator to provide methane detectors to all outby
miners and to any group of two or more miners working together on the
section; typically, only the foreman has CH4 detector; will give miners
means to protect themselves if foreman not making his gas checks.
Law should have required mine operator to provide CH4 detector for
every miner underground--opposed by coal industry lobbyists.
Law should have required mine operator to certify that mine seals
built in accordance with seal construction plan--provision deleted
entirely when bitterly opposed by industry.
HENDRICKSON EQUIPMENT--7/18/06--Knott County--Jason Mosley, a high
wall drill operator, killed when portion of high wall collapsed on his
cab.
HB 207 requires pre-shift examinations for hazardous conditions at
surface mines (not required in federal law).
HB 207 requires recorded pre-operational checks of all equipment
(exceeds requirements of federal law).
HB 207 gives the state enforcement agency subpoena power to
investigate allegations of unsafe working conditions even if no
accident or injury has occurred (in a glaring weakness of the FMSH Act
of 1977, MSHA does not even have subpoena power to investigate a mine
disaster or any accident unless it convenes a public hearing;
therefore, witnesses are asked to attend interviews, then are told they
can refuse to answer any question & can terminate the interview at any
time).
HB 207 mandates 6 inspections per year of all underground coal
mines, 2 of which must include electrical inspections; last year at
this time, KY only mandated 2 underground inspections per year and no
electrical inspections; was increased to 3 in the 2006 session of the
General Assembly.
Two Final Points
Most important mine safety provision that Congress could enact is
requiring six inspections per year of all underground coal mines; if
you do nothing else, require bi-monthly inspections of the mines; would
substantially reduce the number of fatal and serious non-fatal
accidents; stuck on four inspections since 1977 & that is not working
(47 coal mine deaths last year, 16 in Kentucky).
With all due respect to Bruce Watzman and other high-paid industry
lobbyists, disregard their decades-old mantra that most accidents are
caused by the carelessness of coal miners and that what we therefore
need is behavior modification programs for coal miners; what we need is
behavior modification for mine operators sparked by increased mine
inspections and strict enforcement of the Mine Act, not the Bush
Administration's fairy-tale emphasis on ``compliance assistance''
(i.e., asking operators, whom the Administration refers to as its
``stakeholders'', to please comply with the law).
Will submit more detailed comments in writing.
______
Chairman Miller. Thank you.
Mr. Watzman?
STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT FOR SAFETY, HEALTH
AND HUMAN RESOURCES, NATIONAL MINING ASSOCIATION
Mr. Watzman. Thank you, Mr. Chairman and members of the
committee, for the opportunity to discuss with you what we have
done since the tragic events last year and since passage of the
MINER Act which NMA supported.
But, first, let me express again to Ms. Lee and Ms. Hammer
the condolences of the entire mining industry for their loss
and for the other families who have lost loved ones in the
mines.
What I would like to discuss today is the progress we have
made, but also the work we have left to do so that none of us
has to endure this again. As you know, in January 2006, we
established the Mine Safety Technology and Training Commission,
an independent body to study new technologies, procedures and
training techniques that can further enhance safety in our
nations underground coal mines.
The commission unanimously adopted 75 recommendations that
are both near-term and far-reaching in scope. Many of these
were endorsed by the Congress and passed in MINER Act. The
recommendations will require us to look at mining differently
and to train miners differently. Attached to my written
statement is a status report on our review and implementation
of the recommendations.
NMA supported passage of the MINER Act. The requirements
recognize that good safety practices continually evolve based
upon experience and technologic development and that every
underground mine presents a unique environment. Since passage
of the act, the industry has moved aggressively to identify
technology that will enable us to meet the mandates of the act
in as short a timeframe as possible.
While more work needs to be done to fully comply with the
act's mandates, the industry has, as reflected in the chart
attached to my statement and shown on the screens, made
significant progress. Seventy-eight thousand new self-contained
self-rescuers have been placed into service in the mines, and
100,000 additional will be placed into service in the coming
months. Miners have and will continue to receive quarterly
training on the donning and use SCSRs.
With the recent approval of expectation training units, all
miners will begin to receive training with units that imitate
the resistance and heat generation of SCSRs. Mines have
installed lifelines in both their primary and secondary
escapeways, and emergency tethers have been provided so miners
can link together during their escape from the mine.
Underground coal mines have implemented systems to track
miners while underground. They have installed redundant
communications systems, and new systems to provide post-
accident communication continue to be tested. And 36 new mine
rescue teams have been added or are in the planning stages,
even before MSHA initiate rule-making required by the act, and
this number will surely go up.
Even before passage of the act, we began working with MSHA
and NIOSH on a mine emergency communication partnership. Some
of these technologies hold great progress. However, they are
some years away from readiness for mine deployment.
Communication and safety experts agree that underground coal
mines present unique challenges to signal propagation. This is
only the beginning, just as the MINER Act is not the end, but
rather one means of reaching our desired goal to protect our
nation's miners.
To that end, we have been compelled to challenge two MSHA
actions that are outgrowths of the MINER Act because of our
legitimate concerns about the safety consequences that are
raised by these regulations.
But we have also taken several voluntary actions. We
initiated a review of existing mine rescue procedures and
developed the generic mine rescue handbook to help those
forming teams and developing mine rescue protocols. We are also
developing a protocol for communication with the media during a
crisis. The protocol will provide a framework for effective
communication and cooperation with MSHA.
Finally, Mr. Chairman, at no time in our recent history has
the expertise residing in the mining program at NIOSH been more
vital to improving safety. While NIOSH continues to develop and
implement important advances in mine safety and health,
progress has been slow due to an erosion of research funds, and
the situation is now critical.
We look forward to working with the members of this
committee and others to ensure that adequate resources required
to meet the goals of the MINER Act are available so that every
miner can return home safely to their families each and every
day.
Thank you for this time. I would be happy to answer any
questions.
[The statement of Mr. Watzman follows:]
Prepared Statement of Bruce Watzman, Vice President of Safety and
Health, National Mining Association
Good morning. My name is Bruce Watzman, and I am the vice president
of safety, health and human resources for the National Mining
Association (NMA).
NMA and its member companies appreciate the opportunity to discuss
with the committee what the industry has done since the tragic events
last year to protect the health and safety of America's mine workers.
Last year's events brought all members of the mining community
together behind a single purpose--to ensure that every miner returns
home safely to their loved ones each and every day. It is this single
purpose that has guided the actions of NMA in establishing the Mine
Safety Technology and Training Commission, supporting passage of the
MINER Act, promoting industry awareness of the law's new requirements,
and striving to find and deploy the new technologies that will improve
the protection of underground coal miners.
With that common purpose in mind, I will discuss with you today the
findings of the Mine Safety Technology and Training Commission, and
what the industry is doing to implement its recommendations; steps the
industry has taken thus far to meet the expectations of the MINER Act;
and our views on enhancing mine safety research capabilities.
Mine Safety Technology and Training Commission
In January 2006, NMA established the Mine Safety Technology and
Training Commission, an independent body, to immediately undertake a
study of new technologies, procedures and training techniques that can
further enhance safety in the nation's underground coal mines. The
commission drew upon the knowledge and experience of mine safety and
health professionals from academia, government, industry and the United
Mine Workers of America to develop a pro-active blueprint for achieving
zero fatalities and zero serious injuries in U.S. underground coal
mines. The product of the commission's deliberations is a peer-reviewed
report released in December 2006. The report has been recognized
outside the industry as a blueprint to achieve the goal of zero
fatalities and accidents. Indeed, your Committee's Interim Staff
Report, issued on February 27, 2007, recognized the importance of the
commission report to achieve this objective.
The commission unanimously adopted 75 recommendations that are both
near-term and far-reaching in scope. Many of the recommendations
endorse actions taken by Congress in passing the MINER Act. The
commission's recommendations include the areas of communications
technology, emergency preparedness, response and rescue procedures,
training, and escape and protection strategies. The central theme of
the commission's recommendations is a call for a new paradigm for
ensuring mine safety--one that focuses on a systematic and
comprehensive risk assessment-based approach toward prevention that
serves as the foundation from which all safety efforts will flow. This
new paradigm will require us to look at mining differently and to train
miners differently.
The industry is currently implementing a number of the commission's
near-term recommendations and is developing a blueprint for action on
the more far-reaching items. For example, we are discussing with NIOSH
the development of risk-based management tools and templates to assist
the industry in its implementation of the central recommendation of the
commission. The use of risk-analysis risk-management, while not a
common practice throughout the industry, is familiar to many of the
larger companies. Our goal is to create operational tools that will
help every company identify and address significant hazards before they
create situations that threaten life or property. Attached is a status
review of the commission's 75 recommendations, including the steps
necessary to implement those recommendations that are longer-term in
nature.
We share the commission's view that adoption ``* * * of a
comprehensive, risk assessment-based approach toward prevention should
significantly increase the odds of survival for miners in emergency
situations, [and] also provide a guideline for pursuing zero accidents
from all sources.'' We are mindful, however, that this is a significant
undertaking. As Professor Jim Joy, Minerals Industry Health and Safety
Center, University of Queensland, has noted in describing the
Australian mining industry's experience with implementation of a risk-
based approach, [It] ``is immense and fraught with stumbling blocks.''
Nonetheless, we are committed to the task.
MINER Act
NMA worked toward the passage of the MINER Act. We continue to
believe that its core requirements are sound. The requirements, as
implemented through Emergency Response Plans, recognize the need for a
forward-looking risk assessment, that good safety practices continually
evolve based upon experience and technological development, and that
every underground coal mine presents a unique environment and what may
work in one may not be effective or desirable in another. As the Act's
legislative history succinctly states:
The goals of optimizing safety and survivability must be
unchanging, but the manner for doing so must be practical and sensible.
S. Rep. No. 109-365 p. 3.
We believe that this passage not only aptly captures the intent of
the law, but also serves as a useful reminder to the industry and
regulators that there is often more than one way to achieve our
singular purpose to improve workplace safety.
In the months following the enactment of the MINER Act, we
endeavored to promote industry awareness and understanding of the law's
new requirements. Toward that end, NMA, in conjunction with its state
association affiliates and in cooperation with federal and state mine
safety agencies, conducted six MINER Act Workshops throughout the
country. These workshops were designed to assist the industry in
preparing their Emergency Response Plans, obtain information on the
latest technological developments for communications and tracking
systems, and assess mine rescue protocols.
Even before the enactment of the MINER Act, NMA and its members
engaged NIOSH and MSHA in a mine emergency communications partnership.
The purpose of the partnership is to evaluate current practices and
technologies, design performance criteria and protocols for testing,
and identify mines where the technologies can be tested. Our members
have volunteered their mines for testing tracking and communications
systems. Some of these technologies hold great promise; however, they
are, in our estimation, some years away from readiness for mine
application. Communications and safety experts agree that underground
coal mines present unique challenges to radio and wire signal
propagation. What works in one mine may not perform in another. As we
seek to find and deploy the best systems, we will continue in the
meantime to improve conventional systems to provide more reliable means
for tracking and communicating with miners underground.
Since passage of the MINER Act the industry has moved aggressively
to identify technology that will enable us to meet the mandates of the
Act in as short a timeframe as possible. While more work needs to be
done to fully comply with the Act's mandates the industry has, as
reflected below and in the chart that accompanies this statement, made
significant progress. To date:
78,000 new self-contained self-rescuers have been placed
into service in the last 12 months and more than 100,000 will be added
in the coming months.
All 55,000 underground coal miners have and will continue
to receive quarterly training on the donning and use of SCSR's.
With the recent approval of expectation training units,
all miners will begin to receive annual training with units that
imitate the resistance and heat generation of actual models.
Mines have installed lifelines in both their primary and
secondary escapeways and emergency tethers have been provided to permit
escaping miners to link together.
Underground coal mines have implemented systems to track
miners while underground; underground coal mines have installed
redundant communication systems, and new systems to provide post-
accident communication continue to be tested.
36 new mine rescue teams have been added or are in the
planning stages, even before MSHA initiates the rulemaking required by
the Act.
These steps and others taken beyond the requirements of the MINER
Act have resulted in a safety investment of more than $160 million for
NMA member companies alone.
These numbers simply reflect one quantifiable measurement of the
industry's commitment to the MINER Act. And it is only the beginning,
just as the MINER Act itself is not the end, but rather one means for
reaching our desired goal to protect our nation's miners.
Beyond the actions taken by the industry to comply with federal and
state rules we have undertaken several voluntary initiatives that we
would like to bring to your attention.
NMA, with the Mine Safety and Health Administration (MSHA) and the
National Institute of Occupational Safety and Health (NIOSH), initiated
a review of existing mine rescue procedures to determine if existing
practices and protocols remain operative given the structural changes
that have occurred across the industry. This effort resulted in the
development of a generic mine rescue handbook that can serve as a guide
for those forming mine rescue teams and developing mine rescue
protocols, as well as a review tool for those with established
procedures in place. This document has been distributed throughout the
mining industry to be used as a pre-event planning template that will
expedite the delivery of mine rescue services in an efficient manner,
should they be required. It is also readily available to the industry
and public on NMA's website at www.nma.org.
Working with the industry's communication specialists, NMA is
developing a protocol for communications with the media during a mining
crisis. The protocol recognizes the important role of the media in
keeping communities informed about the facts surrounding a mining
accident or fatality and the obligation of mine operators to contribute
to that understanding. The protocol will provide a framework for
effective communications and cooperation with MSHA, as envisioned by
the MINER Act.
Another challenge we face is the often conflicting regulatory
requirements imposed by MSHA and state governments. We do not have the
luxury of time to develop one system that complies with MSHA
requirements, another for one state and possibly a third or fourth for
additional states.
Unfortunately, the underground mining marketplace is not attractive
to many technology providers. In the interest of miner safety, it is
imperative that we embrace policies that encourage the broadest
possible application of technology across all underground coal regions.
Mine Safety Research
At no time in our recent history has the expertise residing at the
mining program in NIOSH been more vital to improving mine safety. The
elimination of the Bureau of Mines in 1995 was a blow to the
longstanding and renowned government leadership in mine safety and
health research. The permanent establishment through the MINER Act of
the Office of Mine Safety and Health in NIOSH will begin to restore
this important function to its former prominence. However, without
adequate resources the Office of Mine Safety and Health's leadership in
this area will suffer, and the MINER Act's expectation for the
acceleration in the pace of research and progress will be frustrated.
While NIOSH continues to develop and implement important
advancements in mine safety and health, progress has slowed due to the
erosion of research funds, and the situation is becoming critical.
Because NIOSH's budget for mine safety and health has remained
relatively flat in recent years, its purchasing power continues to
decline with the increasing cost of labor, materials and other research
costs.
As we consider how to advance the development and introduction of
new technology, we urge you to again strengthen this vital government
function and ensure funding for NIOSH is commensurate with the role
Congress intended under the MINER Act to, ``enhance the development of
new miner safety technology and technological applications and to
expedite the commercial availability and implementation of such
technology in mining environments.''
Today the industry faces important challenges. More complicated
geological conditions, advancements in technology and a new generation
of miners require the introduction of new and innovative techniques.
Our ability to further advance coal mine safety will require that
government and industry continue to harness their collective resources
to identify new technologies and practices that eliminate accidents,
illnesses and injuries in the workplace. We look forward to working
with you to ensure that the resources required to achieve this goal are
available so that every miner can return home safely each and every
day.
Thank you, and I would be happy to answer any questions.
______
Chairman Miller. Thank you very much.
Mr. Dean?
STATEMENT OF JIM DEAN, DIRECTOR OF EXTENSION AND OUTREACH, WEST
VIRGINIA UNIVERSITY COLLEGE OF ENGINEERING AND MINERAL
RESOURCES
Mr. Dean. Good morning, Mr. Chairman, members of the
committee. Thank you for the invitation to participate in
today's hearing and for your ongoing attention to the important
topic of protecting the health and safety of America's mine
workers.
I am pleased to appear before you today to report on some
of the progress that has been made in my native state of West
Virginia and what I believe are some of the remaining
challenges to the progress of implementing miner protections
that were outlined last year.
I currently chair of the West Virginia Mine Safety
Technology Task Force. This group is comprised of equal
representatives of labor and industry. The purpose of the task
force was to determine the commercial availability and
operational capabilities of SCSRs, emergency chambers, wireless
communication and tracking devices, and also consider issues
related to the implementation, compliance and enforcement of
the emergency rules defining Senate Bill 247 in West Virginia.
I have attached to my remarks the report from the task
force as well as the finalized rules that were recently
approved by the legislature this year. These documents, in my
opinion, provide the blueprint for enhancing an individual
miner's ability to survive an explosion, based on a thorough
review of existing technology, a study of past explosions and
also coupled with the past practical mining experience by its
members.
During the various task force meetings with vendors, it
became apparent that the technology to accomplish what everyone
wanted either did not exist or needed modification to address
important factors. The approach taken was to define standards
that were critical in a post-accident situation based on
existing technology and focus on a systems approach rather than
focusing on a singular device.
One example of these important factors was a 95-degree
Fahrenheit apparent temperature requirement set for emergency
chambers in West Virginia. This variable takes into account the
effect of humidity. This particular value is the point at which
a person begins to be exposed to the danger of having a heat
stroke. It makes no sense for a surviving miner to enter a
life-saving device and then suffer a heat stroke.
These standards were publicized in rule form on June the
9th, 2006. Since then, manufacturers of emergency chambers have
made significant changes to their chamber design and
construction based on suggestions from the task force as well
as their own in-house review. After a two-tiered review
process, a total of five chamber manufacturers were approved by
the state. Some mine operators have already ordered these units
prior to their planned April 15 due date for their chamber
plans.
What remains unknown is whether the chambers approved for
use in West Virginia will meet MSHA's requirements when they
are promulgated.
Based on the first summary report of SCSR inspections
issued in October of 2006 in West Virginia, which is attached,
there are a total of 10,291 SCSRs reported. State personnel
estimate of total of 24,000 to 25,000 units being reported at
the close of 2006.
In West Virginia, over $1 million of state funds have been
spent on the West Virginia office of miners health, safety and
training's mine rescue team equipment in the past year, with
over another million to be spent in the coming months as
reported by the director.
The board of Coal Mine Health and Safety last year
promulgated emergency rules, which are also attached, creating
two new state mine rescue teams and additional improvements in
equipment.
Plans for the deployment of tracking and communication
systems are due in West Virginia by July 31 of this year. MSHA
has verbally indicated in that they do not intend to accept any
system yet. We are moving forward in West Virginia and hope
that a year or so from now, MSHA does not reject the systems
that will soon be deployed in our state.
This past legislative session in West Virginia, with
operation from industry, the United Mine Workers of America and
governments, attention turned towards accident prevention in
the form of Senate Bill 68, which is awaiting the governor's
signature, which is also attached.
In summary, this legislation addresses five major areas: a
new administrative sanction that gives the director of mines
the authority to close an entire mine if the conditions are
such that would warrant that; greater review of the use of belt
air with the ultimate resolution of this issue tied to the
outcome of the recommendations of the National Technical Study
Panel convened under the U.S. DOL pursuant to the MINER Act; a
section addressing seals; continuing education for mine
foremen; and also continuing the task force.
In summary, I believe that in order for the miner
protections designed and being implemented by the state of West
Virginia to proceed as quickly as possible, there must be
cohesiveness and commonality in large part with federal
requirements being implemented after these significant state
requirements. This might be achieved through MSHA, excepting
requirements that have already been implemented and a thorough
review of the rationale with which these state requirements
were determined.
Mr. Chairman, this concludes my prepared remarks. Thank you
for the opportunity to be here today.
[The statement of Mr. Dean follows:]
Prepared Statement of Jim Dean, Director, Extension and Outreach, West
Virginia University College of Engineering and Mineral Resources
Good Morning. Mr. Chairman, Members of the Committee: Thank you for
the invitation to participate in today's hearing and for your ongoing
attention to the important topic of ``Protecting the Health and Safety
of America's Mine Workers''.
I am pleased to appear before you today to report on some of the
progress that has been made in my native state of West Virginia and
what I believe are some of the remaining challenges to the progress of
implementing miner protections that were outlined last year.
Initially, allow me to offer a little bit of background on myself.
I have been involved since 1994 in miner training with the West
Virginia University's Mining Extension Service. In mid--February 2006,
I was asked by Governor Joe Manchin of West Virginia to become the
Acting Director of the West Virginia Office of Miners Health Safety and
Training. I accepted this position as a way to try and improve miners'
safety by working to construct meaningful reform to miners' safety and
health after the passage of West Virginia Senate Bill 247 in 2006 which
required a number of measures intended to improve post incident miners
safety and served until September 21, 2006. I am currently the chairman
of the West Virginia Mine Safety Technology Task Force which was formed
in late February of 2006.
Most of the requirements set forth on the state level through SB
247 are currently being implemented consistent with state compliance
schedules. For instance, plans for emergency shelters are due April
15th and plans for emergency communications and miner tracking devices
are due July 31st of this year. Although more effective, through-the-
earth communication systems are still in the design stage with limited
depth penetration being demonstrated, West Virginia has elected to move
forward with existing technologies and components designed to provide
enhanced communications during an emergency event.
Communications and safety experts agree that underground coal mines
present unique challenges to radio and wire signal propagation. Local
geology, mining conditions, and mine layout and design collectively
serve to hinder the development of a universal system suitable for all
mining operations.
The Mine Safety Technology Task Force is comprised of three
representatives selected by the United Mine Workers of America, three
representatives selected by the West Virginia Coal Association, a
technical advisor and chaired by the Director (I am currently serving
as his designee). The purpose of the Mine Safety Technology Task Force
was to determine the commercial availability, functional and
operational capabilities of self contained self rescuers (SCSRs),
emergency chambers/shelters, wireless communication devices and
tracking devices. The Task Force also considered issues related to
implementation, compliance and enforcement of the emergency rules
further defining West Virginia Senate Bill 247.
In my opinion, this group was able to lay the groundwork for
significant, workable improvements in placing SCSR caches, emergency
chambers, mine lifelines, wireless communication and tracking devices.
The resulting report from the Mine Safety Technology Task Force and the
finalized rules, recently approved by the West Virginia Legislature,
are attached as Attachment 1 and Attachment 2 respectively. These
documents, in my opinion, provide the blueprint for enhancing an
individual miner's ability to survive after an explosion based on a
thorough review of existing technology and study of past explosions
coupled with years of practical mining experience by its members. It
also contains a great deal of information on the various mine safety
technologies, their limitations and use.
During the various Task Force meetings with technology vendors, it
became apparent that the technology to accomplish what everyone wanted
either did not exist, or needed modification to address important
factors. The approach taken in West Virginia was to define standards
that were critical for the survival of a miner in a post accident
situation based on the review of existing technology and focusing on a
systems approach rather than a singular device. One example of this was
the 95 degree Fahrenheit apparent temperature requirement set for
emergency chambers.
The apparent temperature takes into account the effect of humidity.
The 95 degree value of apparent temperature is the point at which the
human body begins to be exposed to the danger of having a heat stroke.
It made no sense for a surviving miner to enter a potential life saving
device and then only suffer a heat stroke. Similar standards for
construction of emergency chambers were also developed and included in
the Task Force report and publicized in rule form on June 9, 2006.
Since that time, various existing manufacturers of emergency
chambers have made significant modifications to their chamber design
and construction based on suggestions from the Task Force, engineering
studies, simulations, and in some cases physical testing. These
manufacturers' products went through a review by a licensed
professional engineer from West Virginia and then went through a
separate review by Miners' Health Safety and Training personnel in
addition to two other engineering professors from West Virginia
University. This second review process was observed by MSHA and NIOSH
personnel.
Earlier this month, a total of five chamber manufacturers products
with varying capacity models were approved by the State (one subject to
confirmation of MSHA approval of a battery powered scrubbing system or
substitution of a non-electrical system). Some mine operators have
already ordered these units prior to the planned April 15th due date
for submittal of their chamber plans. Similarly, plans to comply with
the ``breathable air'' requirements of Section Two of the ``MINER
Act'', which could include shelters/chambers, were filed with the Mine
Safety and Health Administration (MSHA) on March 12th. In my opinion,
this 10 month turn around time for technology development is
exceptional. What remains unknown is whether the chambers approved for
use in West Virginia will meet MSHA's requirements when they are
promulgated later this year or early next year. In order for the miner
protections designed and being implemented by the State of West
Virginia, to proceed as quickly as possible there must be cohesiveness
and commonality in large part with the federal requirements being
implemented after significant state requirements.
The State of West Virginia is estimating that there will be
approximately 322 chambers needed in the state of West Virginia. The
Director has informed me that he has been told by the shelter
manufacturers that they are estimating that the chambers required for
West Virginia will be delivered within a year. I believe based on
information reviewed by the Mine Safety Technology Task Force, that the
chamber market will quickly become segregated into two or three
manufacturers, based on factors such as ease of being moved, height
requirements, simplicity of use, and other design factors. There may be
delays due to the availability of internal components such as
regulators, air cylinders, etc. This in combination with what will
happen based upon MSHA's requirements or those in other states that
require chambers or ``safe rooms'' will affect commercial availability
as demand increases.
Estimates for start up time for chamber manufacturers have varied
from a range of 6 to 10 weeks to 10 to 20 weeks to build the first few
chambers. Production estimates have also varied considerably from a
range of 1 to 2 units per week to 10 to 20 units per week due to plans
for outsourcing construction of the unit. Several of the chamber
manufacturers are estimating delivery times of 6 to 8 weeks for
internal components mentioned previously.
The West Virginia Mine Safety Technology Task Force is planning to
meet with representatives from both MSHA and NIOSH to explain its
rationale in developing the requirements enacted last year and also try
and see what new regulations are being looked at by the entities to
develop strategies for implementation in West Virginia and determine
technology issues that we should be addressing that they are not. A
sub-group of the Task Force is meeting with NIOSH this Friday.
Last year, the state of West Virginia issued a requirement for all
mine operators to report the results of their 90-day SCSR inspections.
The first reporting period ended July 31 with reports due no later than
August 15, 2006. The resulting report is attached as Attachment 3. Of
note, the report indicates that a total of 10,291 SCSRs were reported
in this first cycle. Analysis for the second reporting period is near
completion, but WV Office of Miners Health Safety and Training
personnel estimate (data is still be entered) a total of 24-25,000
units being reported or a conservative doubling in number.
In West Virginia over a million dollars of State funds have been
spent on West Virginia Office of Miners Health Safety and Training's
mine rescue team equipment in the past year, with over another million
to be spent in the coming months as reported by the Director. The Board
of Coal Mine Safety and Health (comprised of an equal number of labor
and industry members, chaired by the Director) last year promulgated
emergency rules (see Attachment 4) creating two new ``state'' mine
rescue teams, for a total of four and two separate rescue stations--one
for the northern coal fields and one for the southern regions and
requiring various equipment deemed necessary. These new teams are
designed to enhance the state's ability to respond to mine rescue
activities if that need would ever arise.
Mine rescue deadlines in the ``MINER Act'' are rapidly approaching.
It is estimated that as many as 35 new company sponsored mine rescue
teams will be created with additional teams required for smaller
operations and more may be required based on travel time. As you know,
these provisions are extensive and may have far-reaching effects on
mine rescue coverage being provided by state teams such as Kentucky.
The MINER Act was intended to enhance the current system but
unfortunately it may do just the opposite in the case of Kentucky. It
is my hope that MSHA's anticipated proposed regulations will be
flexible enough to recognize the successful delivery systems of mine
rescue.
Plans for deployment of communication and tracking systems are due
in West Virginia by July 31st of this year. MSHA has verbally indicated
that they do not intend to accept any system yet. While we know that
what we all envisioned, i.e. the ability to remotely pinpoint the
location of any miner anywhere in the mine is not available, what is
available is better than what is currently deployed. We are moving
forward in West Virginia and hope that a year or so from now MSHA does
not reject the systems that will soon be deployed in our state at a
projected cost of approximately one quarter of a billion dollars.
This past legislative session in WV, with cooperation from the
industry, labor, and government, attention turned toward accident
prevention and the need to ensure that the tragic accidents experienced
last year do not occur in the future. Senate Bill 68 has completed
legislative action and is awaiting the Governor's signature (see
Attachment 5).
Once again, I am pleased to report on the exceptional level of
cooperation among the state, the UMWA and coal operators whose
collective efforts resulted in a bill that will further enhance mine
safety in West Virginia. This legislation addresses five (5) major
areas:
1) A new administrative sanction that gives the Director of Mines
the authority to close a mine if the conditions are such that would
warrant such action. An imminent danger violation kicks-in the
``Pattern'' and potential closure of a mine. The current change
requires a mine to have a history of repeated S&S violations caused by
unwarrantable failure which demonstrates a disregard for miner health
or safety;
2) The section on belt air allows existing mines to continue to use
belt air provided the director inspects the mine's ventilation system
and ventilation equipment and finds the mine meeting the requirements
of 30CFR 75.350 (b). New mines will have to petition the director to
use belt air to ventilate working sections and the ultimate resolution
of this issue is tied to the outcome of the recommendations of the
national technical study panel convened under the US DOL pursuant to
the MINER Act;
3) The section addressing seals requires ``protocols'' for the
inspection and examination of all seals and sealed areas to be
developed by the Board of Coal Mine Health & Safety. It also requires
remediation of all Omega seals and establishes a daily exam if not
replaced. Certified engineers are required to sign off on new seal
design if they meet the ``criteria established by the director'' and
also requires the results of seal examinations to be recorded in a book
prescribed by the director;
4) SB 68 also requires continuing education for ``underground''
mine foreman fire bosses. These provisions include: (a) 8 hrs of
continuing education hours; (b) the content of the continuing education
program to include a review of all changes in state mining laws and
mine safety regulations and other subjects as determined by the Board
of Miner Training, Education and Certification; (c) empowering the
Board of Miner Training, Education and Certification to approve
alternative training programs designed by coal mine operators; (d)
providing for indefinite suspension until such individual completes a
refresher program; (e) requiring OMHST to make continuing education
programs available in regions of the state based on demand for
individuals possessing mine foreman-fire boss certifications who are
not serving in a mine foreman-fire boss capacity; and (f) providing a
procedure for out of state mine foreman-fire boss or an individual with
a suspended certificate to gain active status by completing a
retraining program developed by the Board; and
5) The Mine Safety and Technology Task Force has been codified in
state law. The nine member Task Force is charged with exploring new
mine safety technologies and related equipment and making
recommendations on their use in coal mines.
In summary, I believe that in order for the miner protections
designed and being implemented by the State of West Virginia to proceed
as quickly as possible there must be cohesiveness and commonality in
large part with the federal requirements being implemented after
significant state requirements. This might be achieved through MSHA
accepting requirements that have already been implemented and a through
review of the rationale at which state requirements were determined.
Mr. Chairman, this concludes my prepared remarks. Thank you for the
opportunity to be here today. I'd be happy to answer any questions you
have.
______
Chairman Miller. Thank you.
Mr. Knisell?
STATEMENT OF CHUCK KNISELL, MINER
Mr. Knisell. Hello, Mr. Chairman, members of the committee.
My name is Chuck Knisell. I am a fourth-generation miner from
Westover, West Virginia. I presently work at Foundation Coal
Company in southwestern Pennsylvania, and I am a member of
United Mine Workers of America, Local 2300.
I appreciate this opportunity to appear before the
committee as you are discussing what needs to be done to make
America's mines safer. I especially appreciate that you are
interested in hearing directly from a working coal miner
because I think that even though there has been renewed
awareness about mine safety over the past year, members of
Congress have been hearing a lot from industry and government
agencies like Mine Safety and Health Administration, MSHA, but
not enough from the miners themselves.
Everyone has heard the saying, ``History repeats itself.''
Through the years, that has held true in the coal industry.
Time after time, someone has to die or be seriously injured
before the public's attention is captured about the safety
conditions in America's coal mines and before laws are written
to address and adjust those conditions.
In school, we teach history to students of all ages so that
we may prevent it from repeating itself, history. As we sit
here today, I believe it is time we take a lesson from our
blood-covered mining books and show to all that we can stop
this deadly cycle in this nation's mines.
Accidents can be prevented. This is the fact that all of us
know that work in the mines and understand. Mother Nature, the
conditions in the mine, the geology of the coal seam and many
other factors can be difficult to control at times. Every mine
is different, just like a fingerprint.
But just because mines are different does not mean that the
same laws cannot apply to every mine. They can, whether you are
looking at a small operation of maybe 30 men and women or a
large operation of a thousand. Some people say that we have to
treat smaller operations differently than large ones due to the
fact that the money they make and this and that and that and
this, but the fact is the small mines get overlooked and are
allowed to do whatever they need to do in order to keep
operating and make money.
But the effect is that people are being killed in those
smaller operations year after year. The message that sends to
the miner is that as the price fluctuates of coal, so does the
price of miners' lives. The more production, the more death.
At times of higher prices, companies tend to want to
produce as much as they possibly can, putting production ahead
of safety. This is especially true in smaller mines and mines
where there is no union to make them focus on safety. They
spend less on safety so that they could put more money in their
pockets. Coal miners have seen this over and over again,
generation after generation.
This is where MSHA is supposed to come in. The agency is
supposed to put a handle on these companies to enforce safety
laws and regulations and look out for the miner, not the coal
companies. MSHA really is supposed to be the police department
of the mining industry. If they were doing their job, then it
is reasonable to ask why did the miners at Sago die and all the
rest of the miners that died in the past year.
Mr. Chairman, from one of the places I worked before, I got
my present job with Sago. I knew some of the men who were lost
there. I worked with them, and I understand the conditions that
were at that mine. In my opinion, MSHA and the mine operator,
the International Coal Group, betrayed those men.
In my opinion, if ICG had put safety in front of production
at Sago and addressed the problems they had at this mine, which
they had many, and if MSHA had been a strict enforcer of the
law, the men we lost there would still be alive today.
Congress took a big step in the right direction last year
by passing the new MINER Act. We need to continue that because
there is a lot more for us to do to protect the miners, like
myself. For one thing, it must be understood that as each year
passes, technology advances and the mine safety laws and
regulations must advance along with it.
Communication technology has advanced, but we still do not
have reliable communications in the mines in the event of a
disaster. Technology for tracking miners underground has been
around for a long time, and it is still used in other
countries, but MSHA has never required it and the operators
still never use it in the United States.
Miners should not have to wait for more of us to be killed
or injured before the government and to demand these companies
do whatever it takes to keep us safe.
Finally, I want to talk about one of the major differences
in safety in our coal mines, and that is union representation.
My first 3 years working in the mines were spent at non-union
mines in West Virginia, including Sago. The other 3 have been
at my present mine, Cumberland in Pennsylvania, which is a
union mine. The difference is between night and day.
At non-union mines, you have no voice on safety. It is
basically do it or leave. I have heard all the talk from non-
union operators about how much they care about safety, but let
me tell you as a working coal miner that is just a lot of talk,
and it really does not mean anything. They really do not care.
The miners just do not have a voice about their working
conditions in the non-union mines. I have been there. I know. I
have seen it. I have worked through it.
Chairman Miller. It is getting late, so I am going to ask
you if you can wrap up your testimony.
Mr. Knisell. Okay. I will do that. I am sorry.
Chairman Miller. Thank you. Thank you.
Mr. Knisell. Let us see. What do I want to do? How about I
just thank you? Thank you. Thank you for hearing me and letting
me run over 2 minutes. Thank you.
[The statement of Mr. Knisell follows:]
Prepared Statement of Chuck Knisell, Miner
Mr. Chairman, members of the Committee, my name is Chuck Knisell.
I'm a fourth-generation coal miner from Westover, West Virginia. I've
been working in the coal mining industry for six years. I currently
work at Foundation Coal Company's Cumberland mine in southwestern
Pennsylvania, and am a member of the United Mine Workers of America
Local Union 2300.
I appreciate this opportunity to appear before the committee as you
are discussing what needs to be done to make America's mines safer
places to work. I especially appreciate that you are interested in
hearing directly from a working coal miner, because I think that even
though there has been renewed awareness about mine safety over the last
year, members of Congress have been hearing a lot from the industry and
the government agencies like the Mine Safety and Health Administration
(MSHA), but not enough from the miners themselves.
Everyone has heard the saying that ``history repeats itself.''
Through the years, that has held true in the coal industry. Time after
time, someone has had to die or be seriously injured before the
public's attention is captured about the safety conditions in America's
coal mines, and before laws are written to address and adjust those
conditions.
In school, we teach history to students of all ages so that we may
prevent it from repeating itself. As we sit here today, I believe it is
time we take a lesson from our blood-covered mining history books and
show to all that we can act to stop the deadly cycle in our nation's
mines.
Accidents can be prevented. This is a fact that all of us who work
in the mines know and understand. Mother Nature--the conditions in a
mine, the geology of the coal seam, and many other factors--can be
difficult to control at times. Every mine is different, just like a
fingerprint. But just because mines are different, it does not mean
that the same laws cannot be applied to every mine. They can, whether
you're talking about a small operation of 30 employees or a big one of
a thousand employees.
Some people say that we've got to treat smaller operations
differently from large ones. The small mines get overlooked, or are
allowed to do whatever they want to do in order to keep operating and
make money. But the effect is that people are being killed in those
smaller operations year after year.
The message that sends to the coal miner is that as the price of
coal fluctuates, so does the price of miners' lives. At times of high
prices, companies tend to want to produce as much as they can, putting
production ahead of safety. This is especially true in smaller mines
and mines where there is no union to make them focus on safety. They
spend less on safety so they can put more in their pockets. Coal miners
have seen this over and over again, generation after generation.
This is where MSHA is supposed to come in. The agency is supposed
to put a hand on these companies to enforce safety laws and regulations
and look out for the miner. MSHA really is supposed to be the police
department of the mining industry. If they were doing their job, then
it's reasonable to ask: why did the miners at Sago die?
Mr. Chairman, one of the places I worked before I got my present
job was at Sago. I knew some of the men who were lost there. I worked
with them, and I understand the conditions that were in place at that
mine. In my opinion, MSHA and the mine's operator, the International
Coal Group, betrayed those men. If ICG had put safety in front of
production at Sago and addressed the problems they had in that mine,
and if MSHA had been a strict enforcer of the law, the men we lost
there would still be alive today.
Congress took a big step in the right direction last year by
passing the new MINER Act. We need to continue that, because there is
still a lot more to do to protect miners. For one thing, it must be
understood that as each year passes, technology advances, and the mine
safety laws and regulations must advance along with it.
Communications technology has advanced, but we still don't have
reliable communications in the mines in the event of a disaster.
Technology for tracking miners underground has been around for a long
time and is used in other countries, but MSHA has never required it in
the United States. Miners shouldn't have to wait for more of us to be
killed or injured for our government to demand of companies that they
do whatever it takes to keep us safe.
Finally, I want to talk about one of the major differences in
safety in our coal mines, and that's union representation. My first
three years working in the mines were spent at non-union mines in West
Virginia, including Sago. The other three have been at my present mine,
the Cumberland mine in Pennsylvania, which is a union mine. The
difference is like night and day.
At the non-union mines, you have no voice on safety. It's
basically, ``do it, or leave.'' I've heard all the talk from the non-
union operators about how much they care about safety, but let me tell
you as a working coal miner, that's just a lot of talk that doesn't
mean anything in reality. The miners just don't have a voice about
their working conditions in non-union mines. I've been there, I know.
I've seen it, and I've worked with it.
When someone is working in such a fragile, unstable environment
hundreds or thousands of feet below the surface of the earth, that
miner should have a voice when it comes to health and safety, and it
should be a voice that must be listened to. I have a family that I want
to come home to at the end of the day. I have a right to expect that my
workplace will be as safe and healthy as it can possibly be, and that I
can have a say in how to make it that way.
With a union presence, a miner has that voice. The company has to
respect the safety rights we have written into our contract. We also
know that a union mine is a productive mine. Statistics bear that out.
The company I work for is a good example. Foundation has union mines
and non-union mines, but the two most productive underground mines the
company has are UMWA mines. They are where our company makes money.
Management knows that, and we know that. Why they fight the union
organizing at its other mines is beyond me.
Again, I appreciate the opportunity to appear before the committee
today. You have a difficult task ahead of you as you work to improve
and strengthen our mine safety and health laws. All I ask, as a working
miner, is that you continue to hold to the declaration Congress made in
the preamble of the 1977 Mine Act, that the ``first priority of all in
the coal or other mining industry must be the health and safety of its
most precious resource--the miner.''
We miners believe Congress meant those words when they were written
30 years ago. What we want to know today is, do you still mean them,
and what will our government do to make sure they will never be
forgotten?
Thank you, and I will be happy to answer any questions I can.
______
Chairman Miller. Ms. Hamner?
Your written statement will be included in the record in
its entirety.
Mr. Dean. Okay.
STATEMENT OF DEBBIE HAMNER, WIFE OF DECEASED MINER GEORGE
``JUNIOR'' HAMNER
Ms. Hamner. I also want to thank you for inviting me here
to speak at this hearing today. I am Debbie Hammer, and this is
a picture of my husband, George ``Junior'' Hammer, who died in
the Sago mine disaster.
Junior had been a coal miner for 28 years, we had been
married for 32 years, and we have one daughter, Sarah Bailey.
Do you want to come on down? Okay.
Chairman Miller. Thank you, Sarah, for being here.
Ms. Hamner. I attended Congressman Miller's forum on
miners' health and safety last year in February after the
deaths of 47 miners last year in America. I am here today to
stress to you that our work is not done.
New and better laws are wonderful, but it is very important
that Congress oversees MSHA to ensure the improvements that you
intended with the MINER Act are being accomplished. Despite
your good intentions, I have to wonder if very little has
actually changed. I fear that the miners would fare no better
today in explosion than my husband and his coworkers did on
January 2, 2006.
The MINER Act required extra air supplies be available.
This seems so simple, yet 1 year later, many miners still only
have 1 hour. MSHA allows coal operators to be in compliance if
additional SCSRs have been ordered.
The MINER Act also required operators to submit emergency
response plan. Yet, 1 year later, many operators are not in
compliance.
I believe Sago was preventable. If I knew then what I know
today, I would have begged my husband not to work at Sago. It
is my understanding that in 1969 and again in 1977, Congress
mandated explosion-proof seals, yet MSHA approved the use of
omega blocks at Sago. Of course, they failed in the explosion.
When I had the opportunity to inspect one of these blocks,
I kicked the side. The side crumbled. How can they be
explosion-proof? I ask you to permanently ban the use of omega
blocks.
MSHA also approved secondary mining, also known as bottom
mining, at Sago, even though they said conditions were not
favorable. This created heights in many areas that were more
than 18 feet. Methane accumulated behind the seals in a greater
volume than it would have without the bottom mining. Bottom
mining is rare, and I am asking Congress to ban it. My husband
wrote in his last note to me and my daughter, ``The section is
full of smoke and fumes, so we cannot escape.''
MSHA approved a ventilation plan at Sago that did not push
the air away from the seals. Therefore, when our miners tried
to exit through the intake as escapeway, they could not. Miners
must have ventilation systems that ensure their best protection
in case they need to escape.
Our miners were forced to barricade at the face. My husband
also wrote in his note to me, ``We do not hear any attempts at
drilling or rescue.'' They took turns pounding on the roof
bolts. MSHA trains the miners that if they barricade to do
this.
But guess what? MSHA was not on the surface listening. They
did not even have the equipment available to listen. I am
asking if MSHA is not going to be there to listen, do not train
that they will be. Our miners depended on them. They were let
down.
Our Sago miners should have been able to walk out. I urge
you to see that current communication technology is installed
in all the mines, to require tracking devices that can locate
miners underground at all times, and require safety chambers in
all of our mines.
Congress must ensure funding for mine inspections and mine
inspectors. MSHA must quit reducing fines and must do a better
job of collecting fines. MSHA must have the ability to shut
down mines not in compliance.
My last request to you is please quit allowing coal
industry executives to hold high positions within MSHA. We need
your continued oversight to ensure look human life never has to
take a back seat to corporate profits.
Thank you for your hard work on miners health and safety
and your continued hard work.
Congressman Miller, if I might, I would like to introduce
two ladies that are here with us today.
Chairman Miller. Please.
Ms. Hamner. This is one Wanda Blevins and Betty Riggs. Both
these ladies lost their husbands in the Jim Walters mine
explosion in September of 2001.
Chairman Miller. Thank you. Thank you very much for joining
us here this morning and being here.
Ms. Hamner. Thank you.
[The statement of Ms. Hamner follows:]
Prepared Statement of Deborah Hamner, Wife of Deceased Miner George
``Junior'' Hamner
Good morning. Thank you for inviting me to speak at this hearing
today.
I am Deborah Hamner. My husband, George ``Junior'' Hamner died in
the Sago Mine Disaster. He had been a coal miner for about 28 years.
Junior was 54 years old. We had been married for 32 years, and have a
daughter, Sara Bailey. Junior and I have a farm where he kept cattle.
He loved the outdoors.
I attended Congressman Miller's forum on miners' health and safety
last year in February.
After the death of 47 miners last year in America, I am here today
to stress to you that our work is not done. It is very important that
Congress oversees MSHA to ensure the improvements you intended with the
``Miner Act of 2006'' are being accomplished.
Despite Congress' good intentions, I have to wonder if little has
actually changed. I fear that miners would fare no better today in an
explosion than my husband and his coworkers did on January 2, 2006.
The ``Miner Act'' required extra air supplies be available. This
seems so simple. Yet one year later, many miners still only have one
hour. MSHA allows coal companies to be in compliance if additional
SCSRs have been ordered.
The ``Miner Act'' also required operators to submit emergency
response plans. Yet one year later many operators are not in
compliance.
I believe Sago was preventable. If I knew then what I know today, I
would have begged my husband not to work at Sago. It is my
understanding that in 1969 and again in 1977 Congress mandated
``explosion proof seals,'' yet MSHA approved the use of Omega Blocks at
Sago. They failed in the explosion. When I had the opportunity to kick
one of these blocks, the side crumbled. How can they be explosion
proof? I ask you to permanently ban the use of Omega Blocks.
MSHA approved bottom mining at Sago. This created heights in many
areas that were more than 18 feet. Methane accumulated behind the seals
in a greater volume than it would have without the bottom mining.
Bottom mining is rare and I am asking Congress to ban it.
My husband wrote in his last note to me, ``the section is full of
smoke and fumes so we can't escape.'' MSHA approved a ventilation plan
at Sago that did not course the air away from the seals. Therefore,
when our miners tried to exit through the intake escapeway, they could
not. Miners must have ventilation systems that ensure their best
protection in case they need to escape.
Our Sago miners should have been able to walk out. I urge you to:
See that current communication technology is installed in
all mines;
Require tracking devices that can locate miners
underground at all times; and
Require safety chambers in all mines.
Congress must ensure funding for mine inspectors and mine
inspections. MSHA must quit reducing fines and must do a better job of
collecting fines. MSHA must have the ability to shut down mines not in
compliance.
Our last request to you is this: please quit allowing coal industry
executives to hold high positions within MSHA.
We need your continued oversight to ensure human life never has to
take a back seat to corporate profits.
Thank you for your hard work on miners' health and safety and your
continued hard work.
______
Chairman Miller. Cecil?
STATEMENT OF CECIL ROBERTS, PRESIDENT, UNITED MINE WORKERS OF
AMERICA
Mr. Roberts. Thank you very much, Mr. Chairman, not only
for this hearing today but for your continued fight on behalf
of working-class people, particularly last year when you aired
such a strong voice for the protection of miners.
And I also want to thank the entire committee for the MINER
Act last year. It is true we supported that because it was a
good first step in the direction of protecting the nation's
coal miners.
I was going to mention Mrs. Riggs and Mrs. Blevins myself.
I have known them very well since 2001, and this is David
Blevins in front of me. He has become my friend, even though I
did not know him when he was alive. Junior Hamner has become my
friend, and we have made both of these men honorary members of
the United Mine Workers in their death.
I have had the opportunity to work also with Mrs. Riggs,
and she has been a strong supporter of mine health and safety.
I want to thank the coal miners who are here today. They
traveled from West Virginia and they traveled from Pennsylvania
because they, too, are interested in protecting themselves and
seeing that they can come home every day to their loved ones.
I am reminded of what John L. Lewis, a great president of
Mine Workers, once said in about 1952 before a similar hearing.
After a horrific explosion in Illinois that killed over 100
miners, they asked each participant to introduce themselves. He
did not say he was the president of the Mine Workers. He just
said, ``My name is John Lewis, and I represent those miners who
are still alive.''
So today, as all of us gather here, whether we are members
of Congress or members of the union or families grieving and
fighting for better laws or coal miners who made their way here
today, that is our charge. How can we protect the nation's coal
miners?
Many have said that we have been highly critical of this
industry and highly critical of MSHA, and that is very true,
but I want to say on the record there are many fine men and
women at MSHA who work every day fighting to protect coal
miners and their lives and make things better and safer. There
are many industry representatives and many coal companies that
do the right thing.
What we are speaking to is that we make things better for
everybody, and that should be the charge of Congress, and that
should be the charge of the union. That should be everyone's
main concern.
I would hope and I would pray that no one in this room
thinks it is all right for any coal miner, whether they are
working in a small mine in eastern Kentucky or at the Sago mine
in northern West Virginia, or any other miner to go to work
today and not know if they have the full protection and support
of their government, to come home safely to their families.
In the United States of America, it should be something you
could expect to do. You should not fear that you cannot go to
work, make a day's earnings for your family and come home
without your family thinking that maybe you will not come home.
We join with all the families today in this hearing.
But let me just say to you, Mr. Chairman, members of the
committee, I invite you, all of you, to look at what Congress
did in 1969, and I would remind this panel that Congress
determined in 1969 that this industry was incapable of policing
itself. Congress has made that determination. You do not have
to make it. It has been made many years for you.
Unfortunately, it took a long time for Congress to come to
grips with that. Why did they come to grips with that? Well,
the nation watched the mine explode in northern West Virginia
in 1968 that killed 78 coal miners, and the nation was appalled
when they are sitting in their living rooms in California or
New York City or Chicago or in the coal fields of West
Virginia, they were appalled and said, ``This Congress has to
do something. Our government has to do more to protect the
nation's coal miners.''
They passed the 1969 Coal Mine Health and Safety Act, and
then in 1977, they passed another act that strengthened the
1969 act, and I will submit to you that you cannot look at what
is going on in this industry today without coming to this
conclusion: The intent of Congress that was written into the
law has not been the law at the coal mines itself.
You say, ``Well, what you talking about?'' I would submit
to you that Congress said that you cannot ventilate the face
with belt air. We do that every day in this nation's coal
mines. How do we do that and who gave them the authority? MSHA
took from Congress what they had written in the law and changed
it. So, today, we ventilate the face with belt air.
If you look at the law, it says that you have to build
seals that are explosion-proof. Today, you could go and kick in
the seals. Most of the seals in the United States are made out
of omega blocks, and they are not explosion-proof.
So I would submit to Congress you have your own little
agency that over the years has decided they do not yet to do
what you told them to do no. You need oversight of this agency
in the worst way.
And I am not speaking to the many fine men or women who go
out in these mines every day and the professionals who have
been there for many, many years. I am talking about the people
who make the policies that these coal miners, like Chuck
Knisell and others, have to be governed by day in and day out,
petitions for modifications that change the intent of Congress.
In 1969, Congress knew and directed the government agency
in charge of mine health and safety then to come up with
systems to put chambers in the coal mines. Now I submit to this
body today, it has been a little while since 1969, and here we
are today saying, ``Gee, this is a good idea. What if MSHA can
really get this done for us?'' You must put time restraints and
bring them in here periodically to say, ``What kind of progress
are you making here?''
If we can do these things in West Virginia and we can do
these things in Illinois, we have to require these in every
underground coal mine in the United States of America, Mr.
Chairman. That is not an expensive venture. That is not an
outrageous demand.
I submitted in our report at Sago that these men should be
alive today regardless of the ignition source that caused that
explosion, and I believed that then, and I believe that today,
and we have attached that to our report.
We would be glad to answer any question from any member of
Congress anytime or anyplace or, for that matter, anyone from
MSHA with respect to the positions that we have taken.
Thank you, Mr. Chairman.
[The statement of Mr. Roberts follows:]
Prepared Statement of Cecil Roberts, President, United Mine Workers of
America
On behalf of the United Mine Workers of America (UMWA or Union), I
would like to thank Chairman Miller (D-CA) for calling this hearing
before the Education and Labor Committee to continue the discussion
about coal mine health and safety. I would especially like to thank
Congressman Miller for his steadfast and continuing support of the
Nation's miners. Your efforts along with those of the entire West
Virginia delegation and others have been instrumental in advancing and
protecting miners' health and safety. The MINER Act passed last year,
was the first new mine health and safety bill to be enacted by Congress
in nearly 30 years. The Union believes that legislation is a good first
step, but more must be done if we are to eliminate the conditions that
led to the deaths of 47 coal miners last year.
The disasters of 2006 focused the attention of the Nation on the
mining industry. Unfortunately, as it has been in the past, it took
several mining disasters and the loss of many lives before the Nation
understood the dangers miners face daily. The tragic events of 2006,
which played out in newspapers and television nationwide, finally
forced Congress to take action. This reality is too often the case.
Almost without exception health and safety protections miners need are
ignored until a mine explosion or fire claims their lives and creates a
public outcry for change. The 1969 Coal Act was a response to an
explosion in Farmington, West Virginia on November 20, 1968, that took
the lives of 78 miners, 19 who still remain entombed in that mine.
While the Coal Act was an improvement for miners, subsequent
hearings in Congress showed that hundreds of miners continued to be
killed each year in the Nation's coal mines. This reality forced
Congress to pass the Federal Mine Safety and Health Act of 1977 (Mine
Act). This legislation enhanced protections for coal miners and created
the Mine Safety and Health Administration (MSHA) to promulgate and
enforce mining laws nationwide.
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, since 1985 fewer than 100 miners have
perished in any single year. These numbers continued to decline until
last year when 47 miners died on the job; the highest single year death
toll since 1991. While increased mechanization has meant fewer miners
are engaged in coal mining, the fatality rate has also dropped
significantly. This is commendable; but we can--and must--do much
better.
Mining is inherently dangerous and remains the second-most
dangerous industry in this country. This nation possesses the knowledge
and ability to substantially improve miners' health and safety, and to
reduce the fatality rate.
Since its inception some mine operators have resisted the authority
of MSHA to regulate the industry. In some instances they have been
successful in turning back the clock to the days before passage of the
Mine Act. Many of the mandates enacted by Congress in that legislation
have been weakened or eliminated. The use of belt-air to ventilate
working places where miners are extracting coal was strictly prohibited
by Congress, but has been approved by MSHA and is now a common practice
in the industry. The requirement for explosion-proof or bulkhead seals
to separate working areas of the mine from worked out or abandoned
areas is no longer a reality. The industry, through MSHA, has
manipulated and subverted the system Congress created to protect
miners. The law has been circumvented by MSHA by permitting the use of
alternative materials for the building of seals, as was the case at
Sago mine, where they catastrophically failed.
Unfortunately, what happened at Sago, Alma, and Darby, three
accidents that alone claimed the lives of 19 miners in 2006, should not
have come as a surprise to anyone. Indeed, the underground coal
industry has experienced tragedies, as well as near tragedies, on a
recurring basis. On September 23, 2001--two short weeks after 9-11--at
the Jim Walters Resources #5 mine in Alabama there was a terrible
series of events that echoed the Twin Towers' experience inasmuch as
numerous rescuers also perished during a heroic rescue effort. At the
Jim Walters mine, 12 of the 13 miners lost their lives in a second
explosion while trying to rescue a miner who had been immobilized by an
explosion that happened nearly an hour earlier. Communication problems
contributed to the deaths of the 12 rescuers; the rescuers were given
insufficient and faulty information about the underground conditions,
and unselfishly attempted the rescue without knowing the hazards they
faced.
Then in July 2002, 9 miners were trapped by a water inundation at
the Quecreek mine in Pennsylvania, after 9 others were able to escape.
The trapped miners were rescued 4 days later; again communication
inadequacies frustrated their rescue.
After the Jim Walters tragedy, and again after the Quecreek near-
disaster, the need for better underground communications was crystal
clear. Despite the clear lessons to be learned from these events, MSHA
made no changes to require better communications or technology to
locate trapped miners.
In 2006, the coal industry suffered a series of multi-fatal
tragedies. A total of 47 miners lost their lives last year, including
12 at the Sago mine and 2 at the Alma mine both in January and both in
West Virginia, then 5 more perished at Kentucky's Darby mine in May,
and 28 others died one or two at a time throughout the nation.
Typically miners die one or two at a time from roof falls, equipment
failures, and other accidents.
Thousands of others are still disabled and dying from black lung
disease.
There are also countless near-misses that occur on a regular basis.
In just the last few years, MSHA has recorded hundreds of mine fires,
ignitions, explosions and inundations that far too-easily could have
developed into significant disasters and fatalities; many other
incidents likely went unreported.
With better regulations, more regular and consistent enforcement,
and with support from the highest echelons of the Agency, many of these
accidents could have been prevented. Senseless deaths and injuries must
stop. Mining will probably always be a dangerous job. 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.
The sustained efforts by industry and government to erode the Mine
Act has been devastating to miners. Many of the events of 2006 are
rooted in regulations, policies, petitions for modification and
practices MSHA has instituted at the behest of mine operators. Many of
these played a role in the mining deaths of 2006. Once again, miners
were forced to wait until many of their fellow workers were killed on
the job before the public and Congress were outraged enough to take
long overdue action to better protect them.
The United Mine Workers of America has been representing coal
miners for over 117 years. We have seen the effects of lax enforcement
of mining laws by regulatory agencies and the harm that befalls miners
when mine operators view regulations with indifference. These factors
played a role in the September 23, 2001 explosions at the Jim Walter #5
Mine (JWR #5) that claimed the lives of 13 miners. The Union completed
an investigation into the JWR #5 disaster and issued a comprehensive
report, which I have included with my testimony. The Union is convinced
that had the recommendations contained in that report been promulgated
by MSHA, the disasters of 2006 would not have taken such a toll in
human life.
As you may know, the Union recently released its findings regarding
the Sago mine disaster. Since the release of our report, which is
attached to this testimony, there has been much written about the
ignition source of that explosion, and while it is important to make
that determination as we believe we have, that must not be the focus of
this tragedy. Based on our findings, no matter what the source, there
can be no doubt that every one of the 13 miners trapped by the
explosion should have survived. However, given the events that led up
to this disaster and the decisions made prior to and immediately after
it occurred by federal regulators and mine management; 12 of those
miners died. This is the unfortunate result of MSHA ignoring the
mandates of Congress outlined in the 1969 Coal Act and the 1977 Mine
Act and bowing to the wishes of the coal industry. Therefore, while the
Union understands the need to enhance miners' protections with new
legislation and regulations, we must also correct the errors of the
past and force mine operators and the Agency to strictly adhere to the
previous orders of Congress. The UMWA believes that many of the
protections Congress mandated have been taken away or watered down over
the years and only Congressional action will force the necessary
corrections to be instituted.
The UMWA concluded that conditions at the Sago mine leading up to
the disaster were the direct result of actions taken by MSHA
immediately preceding the explosion as well as years of regulations,
policies, petitions for modification and practices that weakened
miners' protections by the Agency. The Union's report identifies these
bad decisions by MSHA and the International Coal Group (ICG) created at
Sago mine including:
Use of alternative seal material;
Flawed ventilation plan;
Inadequate oxygen;
Problems with mine rescue teams;
Need for more coal mine inspectors;
Need for tracking devices;
Need for better communications systems;
Ineffective training;
Poor mining plans;
Lack of seismic equipment;
Delayed response to initial explosion; and
Lack of safety chambers or safe havens.
The Union's report of the Sago disaster demonstrates the failures
that occurred on many levels by both industry and the government
permitting this tragic accident to take the lives of 12 miners on
January 2, 2006. There is no single event that created these
conditions. The explosion and loss of life was the culmination of many
bad decisions by the mine operator and regulators. To view this
otherwise distorts the reality of the situation and restricts our
ability to correct these mistakes and oversights to ensure no miner or
miners' family will face a similar tragedy.
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.
Several years ago, the GAO focused on shortcomings in MSHA's
performance with regard to the underground coal industry. The GAO
issued its report in September 2003, two years after the Jim Walters
tragedy. In its report the GAO noted 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, the 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% of the time the Agency failed to follow-up in a
timely fashion to see if the operator fixed the hazards.
The GAO also found that MSHA collected information about accidents
and investigations, but then failed to use the information effectively
to prevent future accidents. It further found that MSHA failed to
ensure that the ventilation and roof control plans are reviewed every
six months, even though the Mine Act and applicable regulations, as
well as MSHA's long-standing policies, require that these reviews occur
on a semi-annual basis.
After MSHA completed its investigation into the Jim Walters
disaster, the Agency also performed an Internal Review of MSHA's
actions before the explosions to ``improve our inspection process to
better protect our nation's miners.'' The review 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 GAO is presently engaged in another
review of MSHA's performance and we look forward to learning what it
will find.
I would also recommend that Congress review the MSHA Internal
Review of its own actions regarding the Pyro explosion of 1989. Many of
the deficiencies noted in the 2001 GAO report, the JWR #5 report and
the UMWA Sago report sadly parallel in this Internal review completed
some 15 years ago.
Just last month, I had the privilege of testifying before the U.S.
Senate Appropriations Subcommittee on Labor, Health and Human Services,
Education and Related Agencies in an effort to explain to that
subcommittee what improvements miners have seen since the passage of
the MINER Act. Unfortunately, I had to report to that Subcommittee
then, and to this Committee today, that very little has actually
changed for rank-and-file miners since January of last year. The
reality is that if Sago, Alma or Darby happened today the results would
very likely be the same. The men who should have escaped those
tragedies over a year ago still could not do so today because little
progress has been made.
The reasons for this can be traced to several sources including
past decisions by MSHA that lessened the protections afforded miners by
the 1969 Coal Act and the 1977 Mine Act. As I stated before, MSHA has
not moved aggressively to implement all the provisions of the MINER
Act. MSHA is seeking to delay requiring certain improvements be
implemented until the final dates Congress established rather than
moving aggressively forward on these important issues. There appears to
be no urgency on the part of MSHA to push for new regulations any
sooner. There is also resistence on the part of some segments of the
industry to the implementation of new protections for miners. In fact,
the National Mining Association (NMA) sued MSHA over the method by
which it is requiring operators to provide additional oxygen in coal
mines. These problems must be corrected if we are to comply with the
mandates of Congress and afford miners greater protections.
The MINER Act includes several important provisions aimed at
helping miners after a mine emergency develops. It is most appropriate
for you to consider whether the improvements Congress intended to
accomplish through that legislation are being realized. The Union
supports MSHA's efforts to require substantially more oxygen for every
miner. The emergency mine evacuation rule also contains a number of
important improvements. Having said that, my testimony will focus
attention on areas that MSHA needs to focus its attention to fully
implement the MINER Act.
Some of the inadequacies in implementing the MINER Act may be
linked to insufficient resources. However, others can be tracked to
decisions made by the Agency. In 2001, then Assistant Secretary for
Mine Safety and Health, David Lauriski told members of the National
Mining Association that MSHA would, ``collaborate more with mine
operators on regulatory initiatives'' and become ``less confrontational
with mine operators, in an effort to provide companies with better
compliance assistance.'' At a meeting with mine operators in Hindman,
Kentucky, he bragged about his diminutive regulatory agenda. He noted,
``if you've seen it you noticed its quite a bit shorter than some past
agendas.'' These policy statements were accompanied by a withdrawal of
many proposed regulations by MSHA and a noticeable shift to compliance
assistance. These compliance assistance programs diverted precious
resources away from enforcement. If history has taught us one thing, it
should have taught us that the industry cannot police itself. MSHA must
shift its focus from compliance assistance to stronger enforcement.
Perhaps most tragically, in many cases, MSHA has ignored the mandates
of Congress by adopting regulations and policies that place miners at
greater risk.
Mine Inspectors/Mine Inspections
The Agency is experiencing great difficulty in fulfilling the
mandatory inspections required under the Mine Act. The Union is
convinced that the hiring and training of more MSHA inspectors must be
a top and continuing priority. The Agency must have a full complement
of properly trained personnel if it is to perform its primary job of
enforcing the Mine Act. The ranks of the inspectors have been
diminished over the years and we can expect further reductions as more
of MSHA's long-time inspectors leave the profession as they reach
retirement age. These needs can only be filled by hiring qualified
individuals from all segments of the industry, including rank and file
miners. These new inspectors must also be outfitted with state of the
art equipment for personal protection and to perform their mandated
inspection duties. Sufficient monies must be allocated to ensure this
equipment is readily available to these inspectors.
As the number of inspectors have decreased, MSHA's field office
specialists, including ventilation specialists and its electrical and
roof control support staff, have been forced to carry out routine mine
inspections. These specialists must be returned to their areas of
expertise. The only way to accomplish this is to hire an adequate
number of inspectors which will permit the specialists to focus on the
job they were trained to do. In addition, the Agency must move
immediately to train a sufficient number of inspectors to perform these
technical tasks in the future.
We certainly appreciate Senator Byrd's efforts last year to secure
to secure $25.6 million dollars to hire an additional 170 mine
inspectors. Congress still must ensure that funding levels at the Mine
Academy in Beckley, WV remain sufficient to meet future training needs
for mine inspectors. This facility is used to train mine inspectors and
also offers comprehensive training for miners and other health and
safety experts.
Seals
In 1977 Congress mandated that ``explosion proof seals or
bulkheads'' be used to isolate abandoned or worked out areas of the
mine from active workings. However, in the years since, MSHA has
promulgated regulations regarding seals that are much less protective
than what Congress mandated. The current regulation simply requires
that seals withstand static pressure of 20 pounds per square inch (psi)
in order to be approved for installation in the mine. The standard was
further eroded when MSHA approved the use of alternative seal material
including Omega Block type seals, that were used at Sago. These Omega
Block seals catastrophically failed as a result of the explosion and
contributed to the deaths of all twelve miners.
The UMWA urges MSHA to promulgate a regulation that would require
the construction of seals that meet the mandates of Congress and the
recommendations in NIOSH's draft report on mine seals.
Further, the Union recognizes that increasing seal requirements is
not sufficiently protective of miners. MSHA must promulgate regulations
that force mine operators to monitor the atmospheric conditions that
exist in sealed areas of the mine. This monitoring must be done in
enough locations behind the seals to effectively demonstrate the
conditions that exist in that area at all times. The regulation must
also require immediate action be taken by the mine operator when these
sealed areas pose a threat to the health and safety of the miners.
Regulations
As I stated previously, under David Lauriski 17 rules and
regulations that would have provided health and safety protections to
miners were withdrawn. The UMWA believes that MSHA should adopt an
aggressive regulatory agenda to address important issues in addition to
those contained in the MINER Act, including:
1. Improved Atmospheric Monitoring Systems
2. Develop a Nationwide Emergency Communication System
3. Revise MSHA's Approval and Certification Process for Equipment
Approval
4. Occupational Exposure to Coal Mine Dust (lowering exposure
limits)
5. Collection of Civil Penalties (mandatory mine closures for non-
payment)
6. Air Quality Chemical Substances and Respiratory Protection
Standards (update personal exposure limits)
7. Surface Haulage (truck, haul road, train and loadout safety)
8. Respirable Crystalline Silica Standard (reducing quartz
standard)
9. Requirements for Approval of Flame Resistant Conveyor Belts
10. Confined Spaces (tight quartered work areas)
11. Training and Retraining of Miners (revision of Part 48)
12. Surge and Storage Piles (dozer/feeder safety surface)
13. Escapeways and Refuges
14. Accident Investigation Hearing Procedures (make them public)
15. Verification of Surface Coal Mine Dust Control Plans
16. Continuous Monitoring of Respirable Coal Mine Dust in
Underground Coal Mines
17. Modify Conferencing Process (Appeals of Citations)
18. Underground Coal Mining, Self-Contained Self-Rescuer Service
Life Approval and Training.
Recording Fatal Accidents
Several weeks ago MSHA issued new guidelines for determining what
constitutes a mine related fatality. The ``Fatal Injury Guideline
Matrix'' narrows the scope of what the Agency will define as a fatal
accident, chargeable to the mine operator. This will allow the Agency
to report numbers that are artificially low and possibly skew the
actual health and safety record of the mine and the industry. In
addition, fatals not listed as mine-related will not get the same
scrutiny as a chargeable accident. Without the formal investigation
process, lessons learned will not be available to prevent similar
events in the future.
The Union also disagrees with the Committee established by the
Agency to review deaths where chargeability is in question. The
Committee is made up of upper-level MSHA employees and not open to
other agencies, organizations or the public. This type of structure
does not lend itself to a fair, unbiased review of fatal accidents.
Implementation of the MINER Act
In the MINER Act, Congress mandated timelines for its
implementation. In some cases, MSHA has failed to meet these deadlines.
The Union urges Congress to allocate adequate funding to MSHA so it can
fully implement this Act within the time frames set by Congress. In
those instances where a more expedited implementation time is possible,
as has been demonstrated in some mining states like West Virginia and
Illinois where rules for emergency shelters, emergency communications
and tracking devices, mandating SCSR inspections and belt-air issues
have been adopted, the Union urges Congress to require MSHA to do so.
Miners cannot fully benefit from the protections mandated by Congress
unless there is an urgency on the part of MSHA to move forward
aggressively with new regulations.
Emergency Mine Evacuation Rule
The Emergency Mine Evacuation Rule, which is separate from the
MINER Act but ties into the self-contained self-rescuers (SCSRs)
requirements, was finalized and made effective December 8, 2006.
However, miners working underground today do not have all the
protections that Rule addresses. MSHA deems the operator to be in
compliance with the Rule if it has placed an order for additional
SCSRs. Although the Rule requires increased availability and storage of
SCSRs, there is a backlog of orders for these life-sustaining units.
While the Union is extremely frustrated that more than a year after the
Sago and Alma disasters, many miners only have one additional hour of
oxygen, in light of this backlog, the Union supports MSHA's approach to
make the additional oxygen units equally available to all miners. In
reality, it will still take a number of years before miners receive the
protections mandated by Congress. Miners cannot wait for another mine
disaster to occur to drive new technology, therefore, the Union
strongly urges the development and approval of the next generation
SCSR. These devices must be positive pressure units with full face
masks and dockable oxygen canisters so that once they are donned it is
not necessary to remove them until the miner reaches safety.
The Rule also requires ``expectations'' training on SCSRs. This
would allow miners to experience the actual effects of donning a SCSR
and attempting an escape. The practice units would allow miners to
experience the breathing restriction and heating that SCSRs create,
without risking their safety. While MSHA claims these practice units
are not available for purchase, they are in fact available. The reason
these devices are not being used by miners today is not availability,
it is cost. Many mine operators simply do not want to spend the money
to buy them. This is unacceptable and while we commend MSHA for
promulgating a rule that is intended to be ``technology-driven,'' it
must now enforce that rule.
Moreover, the finality of this emergency response and evacuation
rule is somewhat uncertain because of the lawsuit filed by the NMA.
Such legal maneuvers will only serve to delay the protections Congress
mandated last year.
Congress understood the importance of requiring that mine operators
have comprehensive emergency response plans at all their operations.
The MINER Act permitted operators a 60 day period to prepare these
plans and submit them to the Agency for review and approval. However,
many of the mine emergency response plans that operators submitted were
grossly inadequate, and not worthy of approval. We are now over six
months beyond the deadline established by Congress. While we commend
MSHA for not approving these faulty plans, we do believe it must be
more aggressive and apply more pressure on the operators to get these
plans completed. Unless MSHA takes decisive action and resolves all the
remaining issues, miners will not get the mine emergency response
improvements that Congress intended.
Further, the mine emergency response plans are to be reviewed and
re-approved by MSHA every six months. We are already six months beyond
the original plan due date. If those first plans are not yet approved
and fully implemented, how can we expect MSHA to handle these semi-
annual reviews? Perhaps MSHA needs more manpower to handle this task,
but whatever the answer, until every operation has an approved plan in
place, miners are not getting the protections Congress intended.
Communication and Tracking
Very little has changed in the last year concerning the ability to
communicate with and locate trapped miners. While we have learned more
about this technology and understand that much is available, very few
operators have taken advantage of it. Communication systems and
tracking devices are areas that MSHA must pursue more aggressively.
Current communication and tracking technology, including one-way text
messaging and two-way wireless systems, some of which are available
now, must be immediately installed in all mines. Any system that can
increase the ability for miners to escape a mine emergency, even if it
is limited in scope is better than what miners currently have, and must
be utilized. The federal government, through NIOSH and MSHA, must fund
and direct continued studies and research to develop the next
generation of tracking and communication devices. As this newer
technology becomes available, mine operators must be required to
upgrade existing systems at all its operations.
Mine Rescue Teams
We are also troubled by MSHA's failure to undertake action to
facilitate the creation and training of additional mine rescue teams.
Congress in the MINER Act clearly outlined its intent regarding the
need for additional mine rescue teams. In addition, the language
clearly defines how this is to be applied at both large and small
mines. While Congress allowed MSHA 18 months in which to prepare,
finalize, and give effect to rules that increase and enhance mine
rescue team requirements, so far MSHA has not addressed this need. The
need is real, and it is immediate. In the not-too-distant future MSHA
will need additional funding to certify that mine rescue teams are
qualified, as contemplated by the MINER Act.
Over the past 20 years MSHA and some operators have weakened the
intent of the current regulations regarding mine rescue protections.
The existing mine rescue team structure is spread too thin. It takes a
lot of time and much practice for any mine rescue team to function
well. The UMWA has training facilities and is willing to provide mine
rescue training and first responder training if we receive the
necessary funding. Miners cannot afford to wait any longer for the
training of new teams to begin.
Civil Penalties
The Union has completed an initial review of MSHA's Criteria and
Procedures for Proposed Assessment of Civil Penalties: Final Rule,
which it issued last week. While the Agency appears to have
strengthened its approach toward operators who violate the law,
especially those who are habitual offenders, a comprehensive assessment
of the new regulation can only be made after implementation. The Union
must see if this rule will be vigorously enforced and if the Agency
intends to use the civil penalty regulation to ensure better
compliance. Enforcement will be key to its success.
In any event, the Agency must do a better job of tracking and
collecting fines once they are imposed. It should also escalate the
pressure on mine operators who become delinquent or refuse to pay a
final penalty. Finally, to the extent MSHA claims it does not have the
authority to suspend mining operations for non-payment of fines,
Congress should pass legislation to correct that problem.
MSHA Hotline
The Union has complained for some time that the current hotline
system miners use to report hazardous conditions is ineffective.
Recently, a member of the UMWA called the 800 number listed on MSHA's
website to report a problem at the mine where he worked and was
frustrated by problems he encountered. The individual who answered the
call, a contract employee, did not have any knowledge of mining, making
it extremely difficult for the miner to convey the message. Further,
the individual at the call center was not remotely familiar with MSHA's
District structure and was therefore uncertain which office should
receive the complaint.
The Union has stressed on many occasions that the MSHA hotline
should be staffed 24 hours a day, 7 days a week by MSHA personnel with
an understanding of the mining industry and the Agency. The Union has
recommended that the Agency establish a Mine Emergency Response Office
(MERO) to immediately handle problems that occur at mining operations.
The current practice of contracting this work out to call centers
lessens miners' health and safety.
Belt-Air
In keeping with the mandates of Congress in the 1969 Coal Act, and
the 1977 Mine Act, which strictly prohibits the use of belt-air to
ventilate working places, the Union has historically been opposed to
the use of belt-air to ventilate these areas. The 2006 Alma disaster is
a reminder that there is no safe way to ventilate working sections
using belt-air. This mine fire was intensified by air from the belt
entry, and the contaminated air was dumped onto miners working inby. In
addition MSHA must require that conveyor belts used in the mining
industry be made of non-flammable material. Extensive research was done
since the early 1980's by the government and mining community, but this
was another one of the rules withdrawn by Mr. Lauriski.
In the MINER Act, Congress directed that there be created a
Technical Study Panel to provide independent scientific and engineering
review and recommendations with respect to belt air and belt materials;
the Study Panel is then to issue a report to the Secretaries of Labor
and Health and Human Services, as well as the Senate Committee on
Health, Education, Labor, and Pensions, and the House Committee on
Education and Labor. While this Technical Study Panel has been
constituted and had its first meetings earlier this year, we harbor
serious reservations about its administration. Congress was silent as
to its administration, but MSHA staff is providing the support
personnel. If its first meetings are any indication, MSHA seems more
invested in defending the belt air decisions it has already made, than
simply servicing the Study Panel. Congress assigned this Study Panel to
offer an ``independent'' review and recommendations, and we hope it can
overcome MSHA's bias in favor of belt air.
Funding for Additional Programs and Health and Safety Protections
The Union would urge Congress to adequately fund other agencies and
programs that advance the Health and Safety of the nation's miners.
These include:
Pittsburgh Research Center
Spokane Research Center
Lake Lynn Facility
Appalachian Laboratory for Occupational Health and Safety in
Morgantown, WV
Approval and Certification Center
Personal Dust Monitors (PDM)
Colorado School of Mines
Conclusion
One year ago, I testified before the Senate Committee on Health,
Education, Labor and Pensions to discuss and review the performance of
MSHA and the overall state of mine health and safety. That testimony
followed the first two disasters of 2006 at the Sago and Alma mines. At
that time, I described many of the shortcomings in miners' health and
safety.
I am sorry to report that MSHA's efforts over the past year would
do little to change matters today if a mine were to experience an
explosion like the one at Sago, or a fire like the one at Alma; indeed
the underground miners would likely fair no better than those who
perished over one year ago. Thanks to the MINER Act, I can presume that
any incident would be reported within the initial 15 minutes. However,
there is no reason to expect that a sufficient number of mine rescue
teams would respond quickly. This is because the last year has seen
virtually no progress in either expanding the number or improving the
proximity of qualified mine rescue teams.
MSHA still allows mine operators to ventilate working sections with
belt-air, and non-flammable belts are still not required. Today there
are no requirements that operators provide systems that would enable
miners to communicate with the surface or vice versa. There is nothing
in place that requires an operator to be able to locate trapped miners,
and very few could do so. Safety chambers are not required, nor are
safe havens prescribed. Most operators do not have a complete approved
emergency response plan as required by the MINER Act. Many miners
caught in a disaster would likely have one additional hour of oxygen as
opposed to early 2006, but please remember that it took more than 40
hours for the first mine rescue teams to reach the miners at Sago.
We are most appreciative that Congress has worked towards
increasing MSHA's budget so more mine inspectors can inspect mines to
ensure compliance with the Mine Act. We implore MSHA to demonstrate a
similar commitment to enforcing the Mine Act and to improving miners'
health and safety so that our industry will never again experience
another mine disaster like Sago or Alma. Technology is progressing on a
daily basis and the UMWA urges MSHA to require mine operators to employ
improvements as they become available.
Miners should no longer have to wait for a tragedy to strike before
regulatory agencies and mine operators act responsibly. The blood of
miners and the tears of widows and orphans are too high a price for
adequate health and safety protections for all miners. The disregard
for workers' protections demonstrated by the mining industry and the
indifference of the Agency Congress created to protect them can no
longer be tolerated. It is time that they are forced to take a
proactive approach to protecting miners.
Congress understood prior to 1969 when it passed the Coal Act that
the coal industry could not be trusted to police itself, because miners
lives would never be considered the top priority by some mine
operators. In 1977 Congress reviewed the conditions of miners again and
determined it must create a federal agency to enforce the law it had
mandated. However, the tragic events of 2006 demonstrated that the Mine
Safety and Health Administration has not fulfilled those mandates in
many respects. It is time for the Agency to reestablish itself as the
advocate for the coal miner. The UMWA believes that only Congressional
action will ensure that happens. We cannot wait another 30 years to
improve the lives of miners and their families. With the leadership of
Congress and the assistance of the UMWA we are certain we will not have
to.
It has been said that every health and safety law has been written
with the blood of miners. When it wrote the Mine Act, Congress, in its
infinite wisdom stated that this Nation's most precious resource is the
``miner.'' This held true then and must hold true today and into the
future.
Thank you.
______
Chairman Miller. Thank you very much.
And thank you to all of you for your testimony and your
contributions here.
I think one of the positive things for me out of these
tragic accidents and the loss of the lives of these miners was
the opportunity to meet the families and to meet so many
members of your community, and in the short time that I spent
in Kentucky talking to families and relatives and the members
of the community, it was an experience that I will never
forget.
So many people from the community said that they wanted to
make every effort to see that out of the loss of these lives
and lives lost before that the federal government would listen
and take action, and it was a compelling experience, certainly
on my part.
I want to thank you, Melissa, you and Debbie and others who
have spent so much of your time, almost immediately after the
loss of your husbands, and other members of your family who
have taken their time to really push the state legislatures and
the Congress to address this issue in the fashion in which it
should have been addressed before.
I want to just publicly thank you so much for all your time
and your energy and the work that you have put into the effort,
and we will keep that faith and to thank your friends and the
members of your community who have supported you in this
effort.
I thank you for that.
Mr. Knisell in his testimony--Mr. Dean, I am going to ask
you a question here--says, ``The Congress took a big step in
the right direction last year in passing the new MINER Act,''
and I do not think there is any disagreement about that. ``We
need to continue that because there is still a lot more to do
to protect miners. For one thing, it must be understood that as
each year passes, technology advances and mine safety laws and
regulations must advance along with them.''
I think what we have seen, and what Cecil was pointing out,
is that, in many instances, the technology has advanced and we
simply have not responded to it. West Virginia seems to have
taken this issue by the horns here are and decided it is going
to move with all speed to take those technologies that have in
fact been available--some need to be modified; some need to be
advanced--to start to put them in place.
I would just like to know what kind of process that you
went through. Then you have expressed several times your
concerns of whether you are going to now be second guessed by
MSHA and maybe what you have put in place will not be allowed.
Mr. Dean. Yes, sir. If I could, I mean, this technology
task force again was comprised of three members recommended by
President Roberts with the United Mine Workers of America,
three members representing industry from within West Virginia.
During that time I chaired that particular task force, our
process was that whatever recommendations this task force made,
which, again, I have submitted for your information, had to be
unanimous, and this process went through.
There was a report generated as well as recommendations to
the director at that time at the state level--I was the acting
director--and essentially based on industry and labor
recommendations, we implemented the rules in the state of West
Virginia that provided definition around Senate Bill 247, which
the legislature passed last year.
That review process, I think, was done in a total of about
36 working days. I mean, these individuals worked very hard and
reviewed a lot of written information, met with different
technology vendors and, in my opinion, really laid that
blueprint forward. Some of that has been changed already by
MSHA, some of the rationale, and I think it is very important
to go back and take a look at that rationale on SCSRs,
chambers.
Again, right now, there are folks that are moving forward
in West Virginia with these chambers. I think some of the
recommendations made improvements in their products for our
miners, and we hope to move forward. I think there is some
concern that, you know, they may not be approved when MSHA does
whatever rule-making they are going to at whatever time.
Chairman Miller. Thank you.
If I might, Cecil, quickly, we passed the MINER Act. I
think there is a sense that more needs to be done, and I just
wondered if you--we will have a second round of questioning--
had any suggestions of where some of these gaps might be
addressed by the Congress.
Mr. Roberts. We, Mr. Chairman, made 18 specific
recommendations in our written submission to the panel. I think
if I was making some recommendations, I think if you go back
and look at the intent of Congress, it required the agency to
do certain things, but somehow those things never get done.
In----
Chairman Miller. Yes, but, I mean, according to Mr. Dean
here, the fact is it can be done. I mean, this is----
Mr. Roberts. There is no question.
Chairman Miller [continuing]. What drives us all crazy.
Mr. Roberts. It has already been done, and it has been done
in Illinois, it has been done in West Virginia. It has been
done, as my friend Mr. Oppegard pointed out, to a certain
extent in the state of Kentucky. But it just seems to me like
things are supposed to happen at MSHA as directed by Congress
and they either come out looking entirely different from my
perspective with respect to the intent of Congress where they
just do not happen.
The governmental agency was directed, Mr. Chairman, in 1969
by Congress to come up with a plan for the implementation of
safety chambers in the nation's coal mines, and here we are
today talking about MSHA coming up with a plan for the
implementation of safety chambers in the mines. That is 38
years, and that has not happened.
Chairman Miller. Well, we essentially were told that same
information even after these accidents. I mean, that is why I
am intrigued with the idea that West Virginia sort of made an
executive decision or legislative decision and executive
decision that they were going to move forward on those
chambers, and yet, even after these accidents, we were told
that this was beyond the ability and even though they were used
in other parts of the world that this was complicated and the
rest of that.
It may be, but, apparently, it is doable, and this may be
the first generation of chambers, and we may have improvements
down the road, but, at some point, you owe it to the miners to
get on with it, and that is my concern here. I think it is a
point that Mr. Knisell makes. This has to be a system of
continuous improvement and, hopefully, increasing the margins
of safety for these workers and their families.
Mr. Roberts. I think that gets to my point, Mr. Chairman. I
think there needs to be specific deadlines placed on MSHA to do
these certain things by Congress, and I think there has to be
oversight by Congress to see that those things are accomplished
because, without that, it just does not happen.
Chairman Miller. Thank you.
Mr. McKeon?
Mr. McKeon. Thank you, Mr. Chairman.
I appreciate the witnesses being here in today. I
appreciate your testimony. This has been very enlightening. I
was not around here in 1969. I have been around a little longer
than 1969.
Mr. Roberts, the point that you make is one of the big
frustrations that I feel here in Congress. We hear testimonies
like this. I serve on two committees, this committee and the
Armed Services Committee, and we pass laws. Then the regulators
write regulations trying to interpret what they think we meant
when we passed the laws, and then we expect that they will be
implemented.
I know I have seen many instances where it just does not
happen. I get very, very frustrated by that. I mean, in the
Armed Services Committee at one point, we gave direction to the
Navy to do a certain thing, and a year later, they came back
and basically said, ``No, we are not going to do it.''
I do not know what you do. You have given a good
recommendation. I think time lines would be a good thing to
look at. I think oversight, checking some of these things that
we have mandated that are not happening, I think that is a very
good thing.
It sounds like some states are moving ahead and some are
not, but it looks to me like we probably need to go further in
the law, but we also need to demand that the laws that were
passed in the past are complied with, and I think that the
chairman's passion on this issue will make sure that we move on
those areas.
Mr. Watzman, our testimony touches on the idea of risk
analysis, risk assessment and protocols to managing mines. Now
I understand that Australia currently uses this system. Can you
explain how this could be implemented in our country, and is
this a system that we should be pursuing?
Mr. Watzman. Thank you, Congressman.
Yes, you are correct. The Australian system is heavily
weighed on risk assessment. What they would tell you is that
this has been an evolutionary process. It does not happen
overnight. It takes a cultural change, both on the part of the
regulatory agencies as well as the industry itself.
We have met with the Australians through the good services
of the National Institute of Occupational Safety and Health. We
have participated with their experts in them conducting risk
assessments at volunteer mines.
What we are focusing on with NIOSH at this point is
developing templates and materials that can be shared
throughout the industry, to large and small operators alike, so
that they can begin the process of undertaking major hazard
risk assessment.
In many mines, in many companies, risk assessment is part
of the normal process already, whether it is job safety
analysis or something along those lines, but the old saying is
you must walk before you run, and what we are focusing our
attention on first and foremost is providing the tools so that
companies can undertake a major hazard risk assessment which,
if events do not turn out the way one would like, could be
catastrophic in nature.
So we are pursuing that. It is not going to happen
overnight. It is going to be a time-consuming process, but it
is one that we are dedicated to fulfill.
Mr. McKeon. Well, it is pretty obvious it is not going to
happen overnight. I mean, learning to walk before we can run,
it sounds like we are still crawling in many instances, and
from 1969 until now, we have not implemented a lot of these
things?
I agree the technology is moving forward. The comment was
made that some companies are doing very well and some just are
not. It seems to me that this crosses all kinds of industry.
You know, we have had other hearings.
You know, we have had hearings about unions, and some
companies are doing just fine, and then some, no matter what
law is passed, they are going to be kind of like Congress. You
know, some of us follow the ethics and some do not, you know.
Constantly, we are trying to catch the bad apples.
But my view of government is oversight should not be
``gotcha.'' You know, we should not be going out saying, ``Oh,
boy, you know, we can catch you.''
The purpose should be, in what we are working on today,
miner safety, okay. Government and the oversight should be
working with the miners, with their representatives, with those
who are putting up with the problems to make it safer.
Where we have companies that are working on it, fine. I
know we should pass them on the back. Those that are not, when
we catch them doing things wrong, it should be handled, and if
that does not work, they should be shut down. I mean, you know,
there just should not be acceptance of rules that were passed,
laws that were passed and 1969 not being put into force.
I mean, I am really frustrated with this, and I will be
happy to work with the chairman to move forward on this issue.
I do not have any tolerance for people that put people's lives
in jeopardy and know that they are doing it and do not follow
the law.
Chairman Miller. Thank you.
Mr. Kildee?
Mr. Kildee. Thank you very much, Mr. Chairman. Thanks for
this very important hearing here today.
My family and my city of Flint, Michigan, owe a great deal
to UMW, particularly to John L. Lewis, who formed the CIO. My
dad joined the CIO back in 1936, and it changed the quality of
life in the Kildee household and the quality of life in
Michigan. So we are very grateful for UMW.
Mr. Roberts, you mentioned a number of other safety and
health problems that need attention that are languishing
downtown. Do we need to set legislative deadlines for downtown,
and how do we penalize those people who let these things
languish and are not carrying out that which Congress has
mandated?
This is a very frustrating thing in government. We have to
have someone in charge maybe like with at least the zeal of
Frances Perkins who really believes in these things.
Mr. Roberts. I agree, and thank you very much for those
kind comments. I also agree that the CIO was a very good thing,
and there is a lot of history at the Mine Workers in Michigan,
particularly in the auto industry.
It seems to me one of the things that has come out of the
past couple of years--it started in 2001--is that we were
promised--and there are family members here who can tell you--
by the secretary of labor that this was not going to happen
again, and then 5 years later, it happens again and then it
happened again and again and again last year.
I do not think that is a coincidence that these things
happen. I think if you go back to 2001, there were 17 rules
that were pending at MSHA, and they were all withdrawn in 2001
by Mr. Lauriski when he became the undersecretary of labor.
I think one of the things that has happened here with
Congress paying as much attention to mine health and safety as
you have over the past year is it, I think you have the
attention, quite frankly, of a number of these people in these
agencies who now know that the intent of Congress is to protect
the coal miners in this nation, and they are concerned about
you bringing them up here and sitting them where I am and
asking them what is going on and what are you doing to protect
the nation's coal miners.
So I guess I would go back to the point, whether it is the
secretary of labor, whether it is the undersecretary of labor
for MSHA or some individual that is in charge of a particular
area of the country, that those people, if they are not doing
their jobs, probably need to understand that Congress is
watching, and they are going to be brought up here and have a
seat where I am, and you will ask them why they are not doing
the things that you intended.
I believe that is the power of Congress to do that, and I
think you have their attention.
Mr. Kildee. Well, this side now for the first time in 12
years does have the subpoena power, and that is enormous power.
When we pass a law, we certainly should expect the executive
branch to carry it out. When we feel that we are getting
evidence from all of you today that there has not been that
enthusiasm for carrying out all these laws that they should be
brought before us.
Then what do we do? I mean, some of them just wait out
their time and then leave. But we need some type of enforcement
mechanism, almost self-enforcement mechanism, because some will
just sit on these things forever.
Mr. Knisell, if you had to pick those who you feel would
protect you the most, would it be the federal government, the
state government, United mine workers or the coal mine
operators? [Laughter.]
Who would protect workers the most? It is probably an easy
question.
Mr. Knisell. United Mine Workers of America.
Mr. Kildee. You know, that is interesting because my dad
would agree with him. Until the UAW came along, there were all
types of sweetheart arrangements and neglect of law. So we have
to have that gone. The federal government should have strong
laws supporting labor. Collective bargaining is very, very
important.
Mr. Knisell. Absolutely.
Mr. Kildee. The Wagner Act was one of the greatest things
that this country has ever passed, and there are those who
would like to say there is no place for unions now. I think
unions must grow, and this committee has passed out a bill
recently to help unions grow. That is going to be very, very
important.
So I think you have to look at where you can find your
help. You would hope all four of those groups, right--the
federal government, the state government, the mine operators
and the union--would be on your side, but Congress has to make
sure that everyone does what they are supposed to do.
I appreciate your answer.
Thank you very much.
Mr. Knisell. You are welcome.
Chairman Miller. Mr. Kuhl?
Mr. Kuhl. I will pass.
Chairman Miller. Okay. Mr. Yarmuth?
Mr. Yarmuth. Thank you, Mr. Chairman.
I think it is very interesting that it has taken the
chairman from California, the ranking member from California,
to bring a spotlight on this issue in Congress.
Coming from a state--first of all, let me welcome my three
fellow Kentuckians; I appreciate all of your testimony and
welcome you--that is obviously directly affected by these
issues, but coming from an area of that state which has no coal
operations, it has always interested me that part of the
culture of this issue is that coal mining is usually done in an
area where it is the dominant industry, and in some cases, the
only industry and the only source of economic opportunity for
anyone, so that whenever there is a problem with those
industries, it almost by definition has to be addressed by
those outside of that area because there is too much economic
pressure inherent in the business.
If we saw similar threats or dangers in an industry that
was conducted in an urban area, we would not have to wait 38
years for dramatic action because there would be constant media
attention and constant pressure from citizens.
In this particular case, the only time we get media
attention is when there is a disaster. Fortunately or
unfortunately, we are talking about six people here, 10 people
there, 20 people there. It is easy for a country of 300 million
to kind of write that off as the cost of doing business.
Unfortunately, we see today the lives that are directly
impacted, and it is far more than the cost of doing business. I
think this election in part was a resolution of the industry.
Do we in this country ignore human life, do we ignore
damage to the environment solely because of jobs and money? I
think some of the voters this year said, ``We value lies and
the environment more than we do necessarily profits and
business.''
That is why I think this hearing is so important.
Obviously, we have a situation in which my state
potentially benefits a great deal by the pressures to have
energy independence and reliance on coal and new coal
technologies. I address this specifically to Mr. Howard and Ms.
Lee.
In terms of your regions, do you think that your regions
can ever say, ``We are going to put safety first''--and I am
not talking about you individually because I know you have--
``the environment second before the potential economic
benefit?''
Mr. Howard. Are you asking if the coal miner or the coal
company----
Mr. Yarmuth. I am talking about your parts of the country.
Can we ever break through that culture which says that we have
to put people first, we have to put the environment first
before we put profits first?
Mr. Howard. I think you should put people and the
environment first, but I do not believe the coal operator will
let you do that.
Mr. Yarmuth. What about the culture, though? What about the
society, the region?
Mr. Howard. Well, coal is the money there for everybody to
live off of. So, you know, you are going to tell a population
that you are going to take their income away?
Mr. Yarmuth. I guess my question maybe, if I can reframe
it, is: Do you think it is possible that we can ever get the
same concerns for people and the environment among the leaders
of your region, your area of the state, whether it is local
government, whether it is local chambers of commerce?
Ms. Lee. No, no. There are too many----
Mr. Yarmuth. Is that part of the problem we see?
Ms. Lee. There are too many coal operators who hold office
in Harlan County or who benefit from coal mining. There are too
many bed partners, is what I like to call them, for the fact
being one hand washes the other. ``Well, will overlook this.''
These were six men. These were 16 miners in the state of
Kentucky--16 miners in one state--in 1 year. Why do they have
to be looked over?
I have had a lot of criticism and I have had a lot of
compliments at the same time from miners.
I have moved from the state of Kentucky. I was receiving
threats by telephone to my children. My 14-year-old son wears a
dark green hoody sweatshirt to catch the bus in the morning,
and at 7 a.m., the phone rings, there is mumbo-jumbo in the
background, a man's voice says, ``You need to shut your mouth.
You need to not talk about what you know anything about. Do you
know how easy it would be for a coal truck to run off the road
and hit your son?'' Click.
There are too many people who are afraid.
I have miners who would come to my home and beep, and I
would come out, and they would say, ``You keep it up. You keep
talking because what you are doing protects us. We cannot speak
for ourselves because we fear being reprimanded.''
I cannot speak just for the county. I have been told that I
say that too much. I should not speak for the people. But I do
know that I have a 23-year-old brother who is an underground
miner in western Kentucky. He called me. He had been
underground four months and had not bothered anyone to tell me
because they know my feelings on this issue, and he said--I am
his oldest sister--``Do you know that they have recently put
locators on our belts? Do you know why, sis? Because you are
pushing for safety measures.''
Things that were overlooked beforehand are now being made
aware of. My brother and his coworkers are safer. If it is just
one human being, if it is just one female--I hate to be called
a widow. I despise the word ``Widow''--but so be it. That is
what I am, and I am an outspoken widow who will not shut up. I
want to keep men safe.
In the county, yes, I believe that you have progress and
safety. You can have this together, but it also takes people
standing up and taking responsibility for their choices--when
you purchase a material that is not even up to code and use it
on omega seals, when you are not taking in the correct
education, when you bring a miner in and you tell him to go to
an area and build a seal and he has not been educated on how to
do this properly and he has left there.
I mean, you can tell my 4-year-old to sit on the floor and
build a castle out of his blocks. It may not be the castle you
want, but that is what he did because that is all he knows how
to do. So is it right to go over and tell him, ``You did this
wrong.'' Well, it should have been my place to teach him how to
do that. So it should be with the coal operators. They need to
be made accountable for what they do in the mines.
So be it in Harlan County. We do have a lot of coal
officials who--coal operators, coal miners, coal officials,
coal owners--do hold high-ranking status in the county, and
because of that, some things are overlooked. I think that the
eyes need to be made to open up and look and pay attention.
Mr. Yarmuth. Thank you very much.
Mr. Chairman, I think this is another example of why this
is such an important thing that the federal government stay
involved in this issue and be very, very diligent and also
provide the oversight that Mr. Roberts also encouraged us to
do.
Thank you.
Chairman Miller. Thank you.
Mr. Kuhl?
Mr. Kuhl. Thank you, Mr. Chairman. I appreciate the
opportunity to participate in the hearing.
Mr. Watzman, I just want to follow up on your testimony a
little bit. You mentioned the Grayson report a couple of times
in your report. I am curious as to whether or not you can just
lend a little more information to the panel here about who sat
on this panel and what areas they represented and the kinds of
ways in which they came to the conclusions that they reached. I
would just like that background information, if you could for
me, sir.
Mr. Watzman. The commission was an independent body. No one
from the National Mining Association staff nor management
served on the commission. We reached out to Dr. Larry Grayson
at the University of Rolla, Missouri, who is well known in the
mining industry from academia, having been a miner, served in
government capacities, to chair it. He selected the members.
It was a cross-section across the industry of coal company
representatives. Mr. Roberts served on the commission. Academia
searched on the commission. Dr. Jeff Kohler from the National
Institute of Occupational Safety and Health served on the
commission.
And then there were members on it who brought a special
expertise to the commission who had no affiliation whatsoever
with the mining industry, one who had spent I believe it was
something like 30 years or more in the communications industry,
and then a professor from the University of Connecticut who was
brought in following the shuttle disaster by NASA to be part of
the review process there and look at system safety issues.
So it was a cross-section both representing the industry
and bringing mining knowledge and those outside the industry
who could bring a fresh perspective to the deliberations.
As I said earlier, there were 75 recommendations from the
commission, and all of them were adopted unanimously.
Mr. Kuhl. How did they reach those recommendations? What
process did they go through?
Mr. Watzman. They set up subcommittees of the commission
members. They were all tasked with certain subcommittees. One
looked at training, one looked at communication, and among
those committee members, they studied the issues and developed
recommendations that they then brought back to the full
commission.
Mr. Kuhl. Okay. So then they had a general discussion about
each one of these and then came up with a vote?
Mr. Watzman. It was not a voting process. It was more a
unanimous consensus process where they would discuss the issue
and reach consensus.
Mr. Kuhl. Okay. Good. Thank you.
Mr. Dean, just a couple of questions for you. Obviously,
the West Virginia task force has been very active with rescue
chambers, and it sounds as though that your initial research
found that there were a variety of shortcomings in the chambers
themselves and that that was up kind of to the industry to
resolve that.
I guess what I am really looking at is, from those
recommendations, how do you get from the technology that exists
to actual practical application in the mines themselves?
Mr. Dean. Well, again, in that process and defining those
standards, those standards first came out on June the 9th,
2006, and were publicized at that point. They were also shared
by mailing those to the chamber manufacturers that we had
talked with as a task force that had various ideas. From that
point, I mean, these people then went out and made various
engineering construction standards changes to meet our
standards.
There was thermodynamic analysis. There was finite element
analysis to make sure that they met the various standards that
we set. Those standards were again set by looking back at
various Bureau of Mines reports on construction of chambers in
shelters, and since that time, I mean, last year, that is about
a 10-month turnaround time for technology development. I mean,
I think these chamber manufacturers need to be commended as
well as the other members of the task force, I mean, by being
actively involved.
People would bring in demos of their products and ask for
suggestions, and this task force, again made up of industry and
labor representatives, made suggestions. The manufacturers took
those to heart, went out and actually made those changes.
Mr. Kuhl. Is there any off-the-shelf technology that you
can just adapt instantaneously like that in each one of the
individual mines?
Mr. Dean. In chambers?
Mr. Kuhl. Yes.
Mr. Dean. There was a rationale approach outlined in that
report by caring people in industry and representatives of
labor. These came from coal miners, people that have worked in
the mines for years, and based on what they saw of existing
technology, a workable way to make improvements based on
existing technology with slight modifications, and the result
of that is beginning to bear fruit. Again, you know, 10 months
for technology development, I think, is exceptional, and we
hope again to see those being implemented very soon in the
mines in West Virginia.
Mr. Kuhl. Thank you, Mr. Dean.
Mr. Chairman, I see my time has expired. I yield back.
Chairman Miller. Thank you.
I think the point to be made was there was no time line in
existence prior to these accidents, and in 10 months, you took
what we would have been led to believe could not happen for
years and now are at the point where you will have five
manufacturers and people can make their choices under the
standards set by the state.
Mr. Dean. Actually, that deadline of April 15 came from
this joint group as a recommendation to me and was put into the
roles that mine operators had until April 15 to do this. There
was discussion that, well, you know, if the technology is not
there, then this group, again, industry and labor jointly, go
to government and say, ``Hey, we set out a deadline of April
15. We cannot make it,'' and then it could have been extended,
but in this case, it is there.
Chairman Miller. Perhaps you could not do it for 30 years.
Mr. Watzman, if I might ask you, you were talking about the
commission with Mr. Kuhl. The commission in its conclusion
states that the commission strongly believes that companies
which do not pursue the outlined approaches aimed at fulfilling
the fundamental safety requirements should not be permitted to
operate underground coal mines. Do you agree with that?
Mr. Watzman. Yes.
Chairman Miller. How does that become implemented? Is that
a matter for the federal government to tell them, or is it a
matter for the association to tell them?
Mr. Watzman. I do not think it is a matter for the
association to tell them. What we are trying to do in the
association is make available to those who are not part of the
association and who do not have the resources to undertake new
initiatives those tools. That is part of the effort we are
undertaking on the risk assessment project with NIOSH. That was
the reason that we reviewed the mine rescue protocol.
Chairman Miller. So the federal government steps in and
tells people they cannot operate mines, that they are not
complying with these basic recommendations.
Mr. Watzman. I think the federal government should enforce
the laws that are on the books, and if they are insufficient,
then there should be new ones. That is the power that they
have.
Chairman Miller. Okay.
Ms. Shea-Porter?
Ms. Shea-Porter. Thank you, Mr. Chairman.
Ms. Lee, I was very interested in your comments and the
passion that you delivered them, and I am very sorry about the
grief that all of you have experienced through this.
But I do understand what you are talking about in terms of
a culture, and I worked in a factory in the summers, and I know
that you just did not talk about it or you would be out, and I
think that is the culture there.
I wanted to, first of all, say that I do not think we can
change that culture by sitting here in Congress and passing
these laws, and we cannot change it by putting it in on the
books and asking people to enforce some. We have to change them
by reaching into your particular culture and speaking to those
who control the coal mines, those who work there.
I am going to ask you: Would it be helpful inside your
communities if we did indeed send representatives and called
town meetings and made it mandatory for people to understand
both in management, in the ownership and also the workers that
these were the rules and these were the people that you went
and spoke to and that you spoke to your fellow neighbors who
worked with you and say, ``You must do this. It is no longer
going to be because you know so-and-so who happens to be a
public official that you can wink at it and look the other way,
that you will be held accountable and you will be executed for
this.''
Would that help if we actually carried it into the towns,
and then in addition to that, held monthly or bimonthly
meetings where anybody could come and speak about the issues
that you are facing in your particular mines in your community
that was resisting this kinds of change that you have to have
inside your culture?
Ms. Lee. I am not sure if the area would even welcome that.
There is too much fear. There is too much fear in being
reprimanded.
My great-grandfather was in Harlan. My grandfather was in
the Harlan County USA. They were UMWA. They were strong-
hearted, and the people now in the area, they want to carry on.
Lots of men want to carry on with what they are doing. Miners
are proud man, proud people, and they love what they do.
To want to go in to educate an area with what can be done,
what should be done is a wonderful thought. I do not think that
it could be carried through. I do not.
Ms. Shea-Porter. What do you think would work? I mean, how
could we provide some kind of a safety shield so that you are
able to speak about these issues?
I want to praise you for your courage and all of you here
really for standing here knowing that it will be told at home
as well. You are making a difference.
But what do you think would actually help to change that
culture there? Is there a, you know, whistleblower kind of----
Ms. Lee. I am not exactly sure if there would be. You know,
that is the golden egg. That would be the winning answer. I do
not believe there is a direct way to make this a cozy, warm,
neutral spot. This has been going on for so long. This is
ongoing. As you said, this is a coal mining area. This is all
they know.
People have left. I mean, I have uncles who left and went
to Ohio and into Michigan to work in factories, but to stand
now and tell people, ``Okay. We are going to do this for you.
You can come in and speak out your piece,'' a lot of people are
not going to be brave enough to speak their piece because they
do fear being reprimanded.
I am not afraid. I am not afraid. My father and my
stepfather both are retired coal miners, and both of them have
said to me, ``You just have to be so careful because what they
can do to you.'' There is nothing that can be done to me that
has not already been done. My heart's already been broken.
I am left to raise my four sons, hence the reason I left
the state of Kentucky. I want to keep my children safe. I want
them to have the understanding that, you know, you can do this.
My oldest son is looking at it. He thinks that studying is
going to be his outlet for not going into mining.
It would be lovely if you could have people go in and speak
to the public, but if they are going to listen will be the
problem.
Ms. Shea-Porter. Well, we are grateful to the men to mine
every day to bring us this source of energy and grateful to
their families, and I hope that as time goes on and more of
these issues are aired that people will still more comfortable
and that will bring people to the point where you can do your
job and be safe.
Thank you.
Chairman Miller. Thank you.
Mr. Platts?
Mr. Platts. Thank you, Mr. Chairman.
I want to thank all the witnesses, and especially Ms. Lee
and Ms. Hamner, you and the other loved ones here today, for
your efforts here today and your courage in seeking to take
personal tragedies and to have them be turned into the public
good through improved safety for all the mine workers out there
and for their benefit and their families.
You know, I think, Mr. Roberts, you in your testimony
talked about, you know, what will come out of this and all
these efforts, is about learning from the errors, and those
workers out there that we make sure we do right by them and
have these tragedies result in some good.
I want to make sure I understood your testimony in trying
to get more familiar, as we moved the MINER Act last year and
then this hearing today, when we talked about some specific act
issues, one being the belt air issue.
Is my understanding correct that in the past, the
congressional action was basically to prohibit it with some
means of appealing that and getting some exceptions, and the
exceptions became the norm and, in essence, MSHA basically made
the exception the rule, even though Congress said that should
only be a rare exception? Is that correct from what your
testimony was?
Mr. Roberts. My reading of what Congress did in 1969 and
reiterated in 1977 was a prohibition with respect to
ventilating the working face with belt air. Certainly, others
might have a different interpretation, but I think if you read
that, it is hard to come to any other conclusion.
Let me just make a point about that particular situation.
Right after Sago, we had the Aracoma Alma disaster where two
men died. In 2001, one of the rules that was pending that was
withdrawn by the new administration was a prohibition of using
flammable belts in the mines.
Then you also have what was done in 1969, prohibition with
respect to ventilating the face with belt air. The belt caught
on fire, and the face was being ventilated because there was a
stopping out by a cross belt area. So those two men died, in my
opinion, because of failure to comply with the intent of
Congress, number one, and the second one is not to implement a
rule prohibiting flammable belts in the mines.
Had those two things been done, as one was clearly the
intent of Congress, the second should have been something done
by MSHA--there was a rule pending in 2001 that was eliminated--
those two miners would be alive today, and there is no debate
about that.
Mr. Platts. As we go forward, United Mine Workers, your
position is that we should redress both of those issues and ban
the belt air and no exceptions.
Mr. Roberts. That would be our position, and that is not a
new position. I think the industry and MSHA both would tell you
that we have been very strong on the that. There is strong
disagreement by some in the industry with our position, and
there is obviously some strong disagreement by some in MSHA
with our position, but that is not something we thought about
after the tragedy at Alma. That has been a consistent position
by the union.
Mr. Platts. The second issue about the seals on the
abandoned mines, my understanding is recently there has been a
bulletin that requires them to withstand greater pressure. Do
you think that is going to help achieve the intended protection
here, or do we need a whole different approach?
Mr. Roberts. NIOSH has come forward with some
recommendations with respect to what seals should be
constructed and the PSI content of those seals, which is
different from what MSHA has done. MSHA has banned omega blocks
and other similar materials from being used in the mines. We
wish they had done that before the Sago situation, obviously.
Most of those situations are what we would consider to be
on a positive track, but, unfortunately, they should have been
done previously. We once again believe that the intent of
Congress was, in 1969 and 1977, that when you say they have to
be explosion-proof, it is hard for us to come to grips that you
can have something that is not explosion-proof and can be
accidentally destroyed by kicking it, that that protects the
miners in the manner that Congress intended.
Mr. Platts. I want to quickly try to squeeze in one more
question here, Mr. Chairman. I know my time is running short,
too.
Mr. Howard and Mr. Knisell, from your experiences--and Ms.
Lee, you gave some very strong testimony, important testimony
about the ability of you and your fellow miners to come forward
when you see wrong and see safety violations--as best you can
say and as you are comfortable saying, how common do think it
is where someone reports a safety violation and there are
repercussions? In other words, they are punished in a minimal
way or a great way to discourage you or your fellow miners from
coming forward?
Mr. Knisell. Well, like she was saying earlier, the threat
is from the coal companies in different communities. I mean,
Harlan County, I mean, that has been a part of the mining
industry for years. You know I worked at Felipe Mine, Felipe
Development, Spruce One Mine and Sago. Now these three mines
here were owned by the same companies, okay. If you got in
trouble with one mine or a foreman did not like you or
something like that, you went to another mine.
These guys would just skip from here to here. They would
take a job bossing. They would take a job as a laborer, doing
different jobs, this and that and that and this, but they would
blacklist you if you did not cooperate with their way of
thinking.
You did not have a voice. You had no say in your safety
whatsoever, and, you know, after I actually got out of that
mine or out of those mines into the mine that I am at right now
where I have a say in my life----
Mr. Platts. And you are in a union mine now?
Mr. Knisell. Yes, sir. Yes, sir.
Chairman Miller. The gentleman's time has expired.
Ms. McCarthy?
Mrs. McCarthy. Thank you, Mr. Chairman.
I thank everybody for their testimony.
To the families that have lost someone, it has been said by
many of my colleagues on both sides of the aisles, we thank you
for your bravery.
I will say to you that a tragedy happened in my family a
number of years ago, and I decided to stand up and fight, and
that is why I am sitting here, because I did not particularly
like what the politicians were doing. So I just started
fighting and came to Congress to try and make a difference in
people's everyday lives.
So I thank you for that.
I guess, Mr. Watzman, what I would like to ask you is that,
you know, in one area, you know, you talk in your testimony--
and I have read everybody's testimony--that, you know, you want
to work to make things improved, and yet we hear from Mr.
Roberts going back to 1969 about how congress has already
passed laws that we have not really implemented.
Yet reading some background information also, I see that a
number of times you have actually sued to try to change some of
the laws that, you know, the Labor Department has tried to put
forth. Can you explain that to me?
I guess the other than that really bothers me, probably
from being a teenager, I have always heard or read about the
miners' lives, certainly black lung disease--my background is
as a nurse--and yet we are still seeing these things happening
on a daily basis, and none of you have really talked about--and
what a lot of people forget about--is how many accidents are
happening every year and how many people are injured every year
in the miners' lives and how that affects the family.
Yet representing the coal miner companies, you know, we are
not seeing from within the industry, unless the government is
forcing it, the industry taking care of those that are working
for you. I think that is something that is disgraceful in this
day and age.
So I say to the families, you have the voice, you have the
power and, yes, I was threatened to when I decided to take a
stand, said a few things and had to change my phone number a
number of times, and now I just take death threats as whatever.
It just happened last week, by the way, again.
So, I mean, these are things that, you know, if you believe
in what you are fighting for, fight for it.
We in Congress--it is embarrassing, in my opinion, because
after the cameras leave--and, hopefully, you know, this
committee will certainly go forward on trying to make
everybody's lives a lot better, but it is 3 years, 3 years, 5
years down the road that you are still going to have to have a
voice because we all get caught up in things that we are
fighting for until, all of a sudden, another tragedy happens.
Then we will all be sitting here again like, ``What
happened? Why didn't we force the oversight? Why didn't we
force what needed to be done to save lives?''
So, with that, I will go back to the original question on
the number of lawsuits that you have had to try to minimize
some of those products that the government felt that you should
be doing.
Mr. Watzman. Thank you for the question, Ms. McCarthy.
Let me start out by saying again, as I did in my statement,
we supported the MINER Act. We believed in it then; we believe
in it now. We worked hand in hand in hand with Mr. Roberts and
his organization, members of this body and the members of the
Senate, and we were proud when it passed.
As I said in my statement, we have brought two actions
against the Department of Labor Mine Safety and Health
Administration because of our legitimate concerns that certain
aspects of those raised safety consequences that we are
uncomfortable with.
Let me be more specific, if I might. MSHA issued a final
rule in December of last year. Part of that rule dealt with the
storage of self-contained self-rescuers underground, something
that we are short of underground. As I said, 78,000 have been
delivered with a backlog of more than 100,000 that have yet to
be manufactured.
What we wanted to do was have the ability to store SCSRs,
and I have to try to explain this. We have a primary and a
secondary escapeway. Oftentimes, those are adjacent. We wanted
to be able to store those in the connectors between the two
escapeways.
MSHA came out with final regulations that were so onerous
that they precluded our ability to store those in those
connections. So we are left with the alternative of storing the
self-contained self-rescuers in the very escapeways that might
be subject to an explosive force or a fire.
We do not think that is as safe an alternative as storing
them in those connectors, yet what the government came out with
was a regulation that precluded us----
Mrs. McCarthy. Taking my time back for a moment, instead of
suing, though, did you ever sit down with the regulators and
try and figure it out, you know, just across each others' desks
without going to a lawsuit which only delays things?
Mr. Watzman. We do not have that opportunity. This was done
through regulation. We filed comments during the regulatory
process.
Mrs. McCarthy. Did you come to any members of Congress and
ask them to go to bat for you?
Mr. Watzman. No, we did not.
Mrs. McCarthy. You have a number of members of Congress
that represent the different areas. They could have gone down
and, certainly, we could have reached out to those in the power
and tried to work that out just by a technical change.
Chairman Miller. The gentlewoman's----
Mr. Watzman. I appreciate that, and we will look forward to
that option.
Chairman Miller [continuing]. Time is expired.
Mr. Hare?
Mr. Hare. Thank you, Mr. Chairman.
And thank you all for coming today.
I share the disappointment and the frustration by the chair
and the ranking member, but, you know, I have been sitting here
today, and it is almost surreal.
To those of you who have lost somebody, I cannot tell you
how incredibly sorry I am for your loss. The thing that has to
frustrate you, I would think, is that you look and see that
these probably could have been prevented and should not have
happened and people's lives could have been saved, if MSHA and
other people did what they were supposed to do from the very
beginning. I think that is appalling.
I want to say to you, Mr. Howard, if you would do me a
favor, the next time that foreman suggests that you go down and
do something that could put people's lives in jeopardy, I would
kind of like to have a chat with him at his earliest possible
convenience and maybe he would like to try doing that.
You know, this is not the 1900s or the 1920s. I mean, we
are talking about you are being--I mean, what disturbs me is
listening to your testimony--told, ``It does not matter if
Jesus Christ is down there, just get down and do what you are
told to do or else.'' You know, that is shameful, but it is
dangerous and it is appalling.
I cannot find enough words, you know, but I think that type
of behavior needs to be reported, and there has to be, I would
think, some type of mechanisms in place for people that would
put miners in jeopardy knowing that they could be harmed, you
know, and there has to be repercussions for people like that in
the industry.
Let me just say to the president of UMW, you know, thank
heavens for your union because if you did not have the work on
the safety issues in your union, I wonder where we would be. We
would see a lot more people. So I commend you and all the
miners that are here.
I guess what I do not understand--and perhaps, Mr. Roberts,
you could enlighten me here--is since 1969--so we are a 38
years, if my math is correct here--since Congress has told the
folks to do things, we sit here today after 38 years, and we
are still waiting. I mean, why aren't they complying? I mean, I
know they are not, okay. I am very clear from the testimony.
What is their malfunction, as my kids would say?
Mr. Roberts. There are a number of explanations possibly
for that, and I do not want to be political here at all, but
administrations change, the leadership eventually changes, you
get new undersecretaries of labor for MSHA in charge of mine
health and safety, you get new secretaries of labor, you get a
rule-making process that is so time consuming, it is
unbelievable, you get a number of attorneys quite often, and
you get, as has been pointed out, occasionally litigation and
lawsuits.
Once again, I do not mean to paint with a broad brush, but
there are some in the industry that fight a lot of the rules
that are implemented and a lot of the regulations that Congress
and laws that that Congress comes up with. So this has been a
117-year fight for us.
It really did not start in 2001 or 1969. If you go back and
read our history, this is one of the things that prompted the
union's very existence, is to fight for people to be able to
walk out of a coal mine alive, and that is how they UMWA was
born, quite frankly.
Mr. Hare. I would like to maybe ask the two gentlemen, the
two miners that are here, from your perspective, the two or
three things that we could do to best make sure that this does
not happen again and that when you go to work every day that
you can come home to your families.
Mr. Howard. Well, I have been in court before and been sold
out. I got fired once. I told you about refusing to go with
that air.
When I went to the MSHA end filed a 105(c) that was
supposed to protect me, I got an attorney, and when the
investigator talked to me, he said, ``if you get rid of that
attorney, you will win, but if you do not, you will lose.''
Well, I would not get rid of my attorney, and I lost. The judge
said my story was unbelievable, but they believed the company.
Money rules. A lot of these judges and politicians and
government officials are bought and paid for. It is simple.
Mr. Hare. Mr. Knisell? The two or three things from----
Mr. Knisell. I was just thinking about what he just said.
Mr. Hare. So was I. It was not good thoughts either, let me
tell you.
Mr. Knisell. Can you repeat the question for me?
Mr. Hare. I just wondered from your perspective--you do
this work each and every day--the two or three things that you
would want this Congress to do to make sure you have a fair
shot of being safe and going home to your family every night.
Mr. Knisell. Well, for one thing, for someone to actually
police the police, MSHA. That is the main thing. And like Mr.
Roberts said, bring them in front of you all and make them
explain themselves.
Mr. Hare. We are going to do that.
Mr. Knisell. I remember going to--I cannot remember where
it was--maybe it was Buckhannon, maybe it was here--see Mr.
Byrd. He really lit into him. He is a great man. He is a great
man, and I am not going to go into Republican-Democrat right
now, but he is a good man. He has helped us out at, and that is
what we need. We need someone to make sure that MSHA is doing
their jobs, and MSHA is to police these coal companies.
Chairman Miller. The gentleman's time has expired.
Mr. Hare. Thank you very much, Mr. Chairman.
Chairman Miller. Ms. Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
We have our work cut out for us, and as the chair of the
Workforce Protection Subcommittee, I pledge to you to work with
the chairman and put some teeth into this.
A lot of courage up there today. I thank all of you. I do
not know how you could be here and be so brave when you have
lost a loved one, and you miners that are willing to speak up
and speak out and have been all along, thank you.
Mr. Roberts, you have been courageous for ever. I think it
takes a lot of courage for us to sit up here when we have done
virtually nothing useful until just recently on this. We are
members of Congress. I have been here 15 years. We have had a
couple of hearings, and when I was a freshman, we had one that
was really heated, but it did not go anyplace.
But, Mr. Watzman, I think you are the most courageous
person. You are sitting here talking to us, representing an
industry that until 2006 virtually did not admit that this was
a problem. Shame on you.
With these folks up here at the table with you, I think
that you, you know, deserve bravery medals for being able to
sit here and talk like this with them.
I want to know why you have an industry that waits for the
federal government to tell you how to take care of your
employees.
Mr. Watzman. Ms. Woolsey, thank you for the question.
We do not wait for the federal government, nor does the
National Mining Association represent every operator in this
industry. Recall that prior to January 2nd of 2006, the
industry had just achieved its safest year on record. The state
of West Virginia had achieved its safest year on record. We are
not satisfied with the record. We want to be sure that every
miner returns home safely every day, as I said earlier. But
we----
Ms. Woolsey. Well, then, reclaiming my time----
Mr. Watzman [continuing]. Have just come off the safest
year.
Ms. Woolsey. Reclaiming my time, I would like to know why
in your testimony you were not telling us how your association
is insisting that your industry carries them out. You talked a
lot about what we can do in the future. I want to know why the
laws that are on the books right now are not being enforced by
your industry.
Mr. Watzman. Our association does not have the ability to
police the entire industry. What we try to do is make the tools
and the resources available for those who do not otherwise have
them so that they could bring their safety of to the level of
others.
Ms. Woolsey. Okay. I am going to reclaim my time, and I
appreciate that. I appreciate that, and I would like to then
use the rest of my time asking, Mr. Roberts, will you list some
of those 18 factors that you think would improve the Mine
Safety Act.
Mr. Roberts. Yes, Madam.
Ms. Woolsey. Give us the association----
Mr. Roberts. Yes, Madam. Thank you, Congresswoman.
Most of the recommendations that we have made--and you find
those on beginning on page 9 of our written testimony--would
fall in the category of some of the rules that were terminated
in 2001. I do not know if you would like me to list all those,
but some of those having to deal with----
Ms. Woolsey. Talk about the most important ones, if you
could.
Mr. Roberts. Well, sometimes it is hard to come up with the
most important ones, but we have talk in our testimony about
atmospheric monitoring systems that detects CO and other gases.
We think there is a dire need--and we testified to this in the
United States Senate--for a nationwide emergency communications
system.
If you look at particularly Sago that occurred in January
of 2006, right after a holiday, there was a tremendous amount
of confusion and misunderstanding. I do not believe there is
too much disagreement between the industry and the union and
the agencies about that and, quite frankly, trying to gather up
the mine rescue teams that did not get there.
That first mine rescue team did not get on the property
until 4 hours after this disaster. The first mine rescue team
did not go underground until 10 hours. There was no
communications available to those miners who were trapped on
the other side.
We talked about this extensively, and we talk about that in
these recommendations. But we knew, A, how to prevent these
disasters. There are recommendations here that speak to that.
Two, we need a better way to deal with these disasters when
they occur. We need more mine rescue teams. We have known that
for years. It is not something that we just started talking
about in 2006. This was discussed going back into the mid 1990s
forward, and we still need this.
So those are all listed here, there is about 18 of them,
and it is a little hard to say one is more important than the
other, but, clearly, we need to prevent these explosions and
protect these miners from fires.
One of the things that frustrates us all with respect to
Sago is there has been too much time spent arguing about what
the ignition source was. just too much, and not enough time
examining everything surrounding this. Regardless of the
ignition source, all 12 of those miners should have walked out
of there alive.
Ms. Woolsey. Thank you very much.
Thank you, Mr. Chairman.
Chairman Miller. Ms. Clarke?
Ms. Clarke. Thank you very much, Mr. Chairman.
This is a very disturbing hearing. I sit here and I hear
from Mr. Roberts about the 117-year struggle to bring this
industry to where we know it all can be. Implicitly, we all
know that we have the skill, the ability, the talent. We do not
have the will.
Then to hear about the benchmark of 1969, I look at Mr.
Knisell, and I know that his beard makes him look a little bit
older than he probably really is. He was a child, if he was
even born, okay, when the standards were set.
That he would be coming into this industry giving of
himself and no one has blazed the way for him to go into an
industry at standards much greater than his grandparents or
great-grandparents may have experienced in America is a
disgrace. It is a disgrace. There is no excuse.
I was in kindergarten, and I had to come to Congress to
hear that this is where this industry is today? I am from New
York, but we know about coal miners. We listened, we read, we
heard about black lung disease and what has taken place, and we
care. And we care.
It just totally upsets me to be here today to see that in
America we have not gotten our act together to deal with this
industry the way we know we can do it. We can send people into
outer space. They can live on Space Station, but we cannot
secure coal miners in America in the 21st century?
Mr. Chairman, I feel like I am in a time warp. I cannot
believe it.
So I have a couple of questions because I just want to know
is this procrastination, is it foot dragging. I know there is
money involved and people freak out around that, but come on.
What is obstructionism?
I want to know from Mr. Oppegard, when a large mining
accident occurs and MSHA is responsible for investigating both
the accident itself and whether MSHA's own conduct played a
role in the accident, as the investigation system is currently
set up, do you think that a fair and honest accident
investigation can occur, one?
Then two, Mr. Watzman, you indicate that your organization
supports the MINER Act and wants to work hand in hand with the
federal government and the families to improve miner safety.
You say this even though new safety technologies have been
commonplace in the mines of foreign competitors. The American
mines have plodded along with antiquated devices.
Please explain why your industry's actions have not
addressed these substantive problems and the problems you have
with MSHA's final rules.
Those are the two questions. I am a bit dumbfounded here.
Mr. Oppegard. Thanks, Representative Clarke.
MSHA has a serious problem with accident investigations,
and it has been going on for decades. First of all, they do not
have subpoena power under the Mine Act, unless they convene a
public hearing. There has only been one public hearing since
1977. That was in Louisiana in a nonmetal disaster.
The system is inherently flawed because, number one, coal
operators are always allowed to sit in on the interviews of
witnesses. Under the Mine Act, operators have a duty, a
responsibility to do their own accident investigation and to
submit their own report to MSHA. That is usually not required
by the agency.
There is no necessity for an operator to sit in on accident
investigation interviews, and the effect is intimidation of
witnesses. If Mr. Howard worked at the mine and there was an
explosion in his mine, he would be asked to testify. The
operator in his attorney is going to be sitting right across
the table from him. You are not going to get truthful
testimony, in most circumstances.
Meanwhile, the families and their representatives are shut
out of the process. They are not even told when the interviews
are being conducted, and they are not allowed to be there. The
only way to get around that is if you are designated a
representative of miners by miners in the mine, which happens
occasionally, but not usually. It is a flawed process, and it
needs to be changed.
Mr. Watzman. Thank you, Ms. Clarke, for the question.
As I was discussing with Ms. McCarthy, we did bring suit
over two of the issues in the MINER Act. There are many, many
other issues that are being implemented that the industry did
not challenge and we are working to comply with.
I discussed the issue of self-contained self-rescuers and
how we store them underground. The second issue deals with a
program information bulletin they have recently issued on
supplies of breathable air underground for trapped miners.
Ms. Lee talked about the circumstances that her husband
experienced and the O2 tank. As a result of the program
information bulletin, many mine operators are going to be left
with the choice of storing hundreds of cylinders of oxygen and
suppressed air underground to meet this requirement.
That raises in our mind what we think are legitimate safety
concerns. Not all operators have the luxury of drilling a
borehole from the surface to provide that air underground. Some
of those mines are under park land that they cannot get access
to, some are under national forests that they cannot get access
to, and some are owned by private landowners who will not give
them access to the surface. So not all operators have the
luxury of that. Many, many more will have to store these
cylinders underground, and that is of great concern to us.
As it relates to other countries, I can tell you that I
have attended international conferences where other countries
look to the United States mining industry as an example of
doing it right. We look to their technology and try to
implement it.
One of the technologies is a tracker system that is used in
Australian. It has been tested in the United States. There are
a limited number of mines that are using it in the United
States because it has problems in our application. That is just
not our determination. That is the determination by the
researchers, who have no stake in this issue, at the National
Institute of Occupational Safety and Health and the technical
experts within MSHA.
If there is technology overseas that will advance miner
safety, we will examine its application in the U.S. We are not
turning a deaf ear to that.
Chairman Miller. The gentlewoman's time has expired.
We have a vote on, so we are going to conclude this
hearing.
I want to thank all of my colleagues for attending this
hearing.
And I think you can see, from the reaction of the members,
there is a great deal of alarm here on how the situation has
been allowed to gather.
I am trying to remember whether before these accidents we
ever had in the last decade an oversight hearing on MSHA or on
this problem, and I think the answer may be that we have not,
or if we have, it certainly will be in single digits. I think
it is none.
You know, one of the commitments that we made during the
election is that we would have oversight, and I think you can
see that many of the committees, this committee included, are
engaged in that vigorous oversight. The Speaker has made it
clear that that is what she expects from these committees. So
this will continue to.
As Ms. Woolsey mentioned and Mr. Hare, we are going to be
involved in some follow-on hearings to this one.
I would just like to take a moment because this is a
troubling situation in my mind. Debbie, maybe you want speak to
this, but Melissa spoke about the difficulty in the community
of speaking out and being critical of the situation in the
mines, and Mr. Howard and Mr. Knisell and others spoke to this
point, that there is a lot of pressure in these communities.
You know, I think people in dangerous occupations do not
like to burden their spouses with concerns that they have, but
I just wondered if this was ever echoed in your discussions
with your husbands or when you talk to other spouses.
Ms. Hamner. Yes. Melissa could have been describing Upshur
County, West Virginia, instead of Harlan County, Kentucky. Town
meetings are a wonderful thing, but it is not going to work.
Just like the Kentucky coal miner told you, do it or else.
When he had safety concerns, you know, he was faced with being
fired, and then he talked about being blackballed in that
community, in that county, and having to move on to another
one. Well, the same things go on. If someone speaks out against
safety, then they are blackballed and maybe blackballed, you
know, in several counties over the state.
I think Chuck said it best when he said the industry has to
be policed, and you have good intentions, but they are not
being carried out.
You know, at Sago, I feel that bad practices on the part of
International Coal Group and their approval by MSHA killed by
husband. First of all, you know, do not stack MSHA with coal
company executives. Staff it with people that care about
safety. Give them the power to shut down these coal mines if
they are not in compliance. [Applause.]
That is the only thing that will make a difference.
They took corporate profits ahead of human lives, and that
is not going to change unless they are faced with being shut
down. The fines have two stand up to the violations, and MSHA
needs to quit reducing those fines, and that is what has to
happen.
Chairman Miller. Thank you.
Melissa, do you have anything to add?
Ms. Lee. No.
Chairman Miller. Okay. Thank you.
Thank you very much for your testimony.
I would like to follow up on this. I think somehow we have
to buy a margin of assurance for mine workers. I guess, in most
areas, we call them whistleblowers.
You know, the auto industry will tell you that you can pull
the stop cord at anytime on the assembly line if you see a
defect or you see a danger, a problem, what have you. I do not
know if that is completely accurate, but that is the picture
presented by the industry.
Somehow these miners have to be able to speak out without
intimidation, without fear or, without fear of retribution or
job loss or wage loss or shift change and all the things that
go on, apparently, in this workplace.
We have to figure out how we buy them that margin of
protection in the law so that they can protect their
livelihoods, their safety and that of their fellow workers
because it is pretty clear from this testimony, from earlier
testimony, from discussions with people in the community that
fear and intimidation play a very, very big role in this
industry, and that is simply unacceptable.
That was true of many workplaces in many industries in this
country, but most of them have changed that culture. We keep
hearing about this change of culture. We just do not see it on
the ground. You know, we can all talk about how we do not want
the federal government to step in, but I do not know who else
is going to protect these workers if the federal government
does not step in and keep these workers from being intimidated
and being harassed and, in fact, having retribution taken
against them for speaking out on behalf of safety.
Mr. Howard, you have made that point very, very clear, and
I think others have, too.
So you have fear and intimidation in the communities, in
the workplace, in the mine underground, and you have what I
think may be a hostile corporate takeover of MSHA, and somehow
we are going to have to break these bonds and get this thing
right side up in the water because, when the Congress does not
have oversight for 12 years, I guess you can do anything in the
agency you want.
Well, that is just not going to continue in this current
situation, and so we have a lot of work here to do, but what I
will not have is I will not have people who want to come
forward and talk to this committee be intimidated when they go
home, to be intimidated when they go back to work. That is just
not acceptable, and that is an obstruction. In my mind, that is
just an obstruction of the congressional process and
obstruction of justice.
So I would hope that somehow we can get the kind of
testimony and the kind of information that we need, and so very
often we find out that comes from people who are working in
these facilities, in these plants, in these mines, on the
waterfront, on ships, that that comes from people who are there
every day and experience it.
So I think this has been a very important hearing. I
understand now why my colleagues did not want to hear from the
families during the aftermath of this tragedy. Unfortunately, I
think had we heard from you, the MINER Act would have been
stronger and we would have been able to address it.
I want to thank the governor and, Mr. Dean, you, because
for all the things that we were told were impossible to do
somehow are now starting to get done at least in West Virginia
and to some extent in Kentucky, and I appreciate that
leadership. You may not get it right, but at least you did not
sit on your hands as these tragedies unfolded in front of us.
So thank you very much.
Members of the audience and others, if you have heard
something and you want to submit comments to the committee, we
will certainly welcome them and make them part of the record.
For witnesses, if you think of something that we
additionally ought to know as a result of the give-and-take
here, that, too, also will be made part of the record.
There will be 14 days for members of the committee to add
to the record.
So thank you very much.
And, with that, the committee stands adjourned.
[The statement of Mr. Altmire follows:]
Prepared Statement of Hon. Jason Altmire, a Representative in Congress
From the State of Pennsylvania
Thank you, Mr. Chairman, for holding this important hearing to
examine how best to protect the health and safety of America's mine
workers.
I would like to extend a warm welcome to all of the witnesses. I
appreciate the time you took to be here today and look forward to your
testimony.
Western Pennsylvania has a long, proud history of coal mining. Some
of the first coal reserves mined in the United States were located in
the region. Many of my constituents are connected to the coal industry
either directly as coal miners or through their family members and
relatives. Not only is coal mining an integral part of the region's
heritage, but it as also a key component of the local economy.
Pennsylvania is the fourth largest coal producing state in the country
with nearly 7,000 employees and over 72 million tons of coal produced
in 2005.
Technological innovations and the implementation of safety measures
have gone a long way toward reducing the number of accidents and deaths
that occur. In 1968, the year before the Coal Act was enacted, 300
miners died. Since 1985, there has not been one year with more than 100
deaths and most years have had significantly less than 100 deaths.
While this is a dramatic improvement, more can still be done to ensure
the safety of miners. Recent incidents, such as the accidents at Sago
Mine in West Virginia and Quecreek Mine in Pennsylvania, remind us that
coal mining can be a dangerous profession. I look forward to hearing
more about what the proper role of Congress should be in making certain
that mines are as safe as possible.
Thank you again, Mr. Chairman, for holding this hearing. I yield
back the balance of my time.
______
[Additional materials supplied by Mr. Dean follow:]
[Internet address to report: ``Mine Safety
Recommendations,'' report to the director of the Office of
Miners' Health, Safety and Training, by the West Virginia Mine
Safety Technology Task Force, dated May 29, 2006 follows:]
http://www.wvminesafety.org/PDFs/MSTTF%20Report%20Final.pdf
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
TITLE 56
Legislative Rule
OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING
Series 4
Emergency Rules Governing Protective Clothing and Equipment
Sec. 56-4-1. General.
1.1. Scope.--These emergency rules pertain to the implementation of
provisions of W. Va. Code Chapter 22A Article 2-55, relating to the
regulation of protective clothing and equipment worn by miners
underground by the Office of Miners' Health, Safety and Training.
1.2. Authority.--W. Va. Code Chapter 22A Article 2-55.
1.3. Filing Date.--February 1, 2006.
1.4. Effective Date.--February 9, 2006 (first amendment filed
February 27, 2006 effective February 28, 2006 and second amendment
filed June 1, 2006 effective July 21, 2006)
Sec. 56-4-2. Preamble.
2.1. Purpose--The primary goal of Title fifty-six Series four W.
Va. Code of State Rules is to protect the health and safety of this
State's coal miners by requiring minimum standards for the protective
clothing and equipment worn by each underground miner. The purpose of
these legislative rules is to require coal mine operators to provide
each underground miner with certain protective equipment and by
detailing the requirements for such protective equipment. In
implementing such mandate, it is recognized that different types of
protective equipment may be developed to satisfy the minimum
requirements for protective equipment for each mine, depending upon the
number of employees of the particular mine, the location of the
particular mine, the physical features of the particular mine, and
technological advances.
2.2. Escape is the primary procedure to be used by miners in the
event of an emergency underground. Self-contained self-rescue devices
(SCSRs) are intended to isolate miners from hazardous gases and provide
breathable air while attempting to escape the mine during an emergency.
In the event that escape-ways are impassable emergency shelters/
chambers provide a source of breathable air for miners unable to escape
from the mine. Wireless emergency communication and tracking/locating
devices are intended to assist in exchanging information between
escaping miners and between them and those on the surface following an
accident and in locating miners to aid their escape. In addition to the
purposes stated above, the intended purpose of these rules is to
establish a regulatory regime enabling the advancement of mine safety
and health technologies and the proper implementation of these
technologies in West Virginia's underground mines.
Sec. 56-4-3. Definitions.
3.1. Unless herein defined, all terms used in this rule shall have
the same meaning as they are defined in W. Va. Code Chapter 22A
Articles 1-2 and 2-55 and in W. Va. Code of State Rules Title 36 Series
3-13.
3.2. ``Code'' shall mean the Code of West Virginia, 1931, as
amended.
3.3. ``Director'' shall herein refer to the Director of the Office
of Miners' Health, Safety and Training.
3.4. ``Operator'' means any firm, corporation, partnership, or
individual operating any coal mine or part thereof, or engaged in the
construction or maintenance of any facility associated with a coal
mine, and shall include any independent contractor at a coal mine.
3.5. ``Independent Contractor'' means any firm, corporation,
partnership or individual that contracts to perform services or
construction at a coal mine, excluding mine vendors, office equipment
suppliers, service or delivery personnel; Provided they or their
employees do not go underground.
3.6. ``Self-Contained Self-Rescuer'' (SCSR) means a type of closed-
circuit self-contained breathing apparatus or its equivalent approved
by the Mine Safety and Health Administration of the United States
Department of Labor for the purpose of isolating a miner from hazardous
gases and providing breathable air to aid in an escape.
3.7. ``SCSR Storage Cache'' means a non-combustible container
constructed to withstand normal mine conditions, protect a number of
SCSRs, and allow easy access for inspection of the SCSRs and easy
access for miners who are escaping.
3.8. ``Emergency Shelter/Chamber'' means an enclosed space located
within 1,000 feet of the nearest working face with all sides made from
man-made materials whose function is to protect the occupants from
hazardous gases and provide breathable air in the event escape is not
possible.
3.9. ``Emergency communications'' means the transmission and
reception of voice, data and/or information regarding an unexpected
event requiring immediate action.
3.10. ``Wireless'' means allowing individual communications by a
miner through a mine communication and tracking/locating system without
a physical connection.
3.11. ``Communication device'' means equipment that is a component
of an integrated mine communication and tracking/locating system for
purposes of emergency communication.
3.12. ``Physical location'' means the position of a miner in
relation to a tracking device at a known location to enhance escape
and/or rescue.
3.13. ``Tracking/location'' means knowing the physical location of
miners at the moment of an accident and as escape progresses if the
tracking/location system being used is still functional.
3.14. ``Tracking/locating device'' means equipment that is a
component of an integrated mine communication and tracking/locating
system for the purpose of providing the physical location of a miner
during an emergency.
3.15. ``Apparent-Temperature'' means a heat stress indicator that
considers the effects of temperature and humidity.
Sec. 56-4-4. Mine Safety Technology Task Force.
4.1. Within seven (7) calendar days of the effective date of these
rules, the Director shall establish a Mine Safety Technology Task Force
to provide technical and other assistance related to the implementation
of the new technological requirements set forth in W. Va. Code Chapter
22A Article 2-55. The task force shall be comprised of three miners
from the major employee organization representing coal miners in this
state and three miners from the major trade association representing
underground coal operators in this state. All actions of the task force
shall be by unanimous vote.
4.2. The task force, working in conjunction with the Director,
shall study technology and technology usage issues related to the
implementation, compliance and enforcement of the safety requirements
covered under W. Va. CSR Title 56 Series 4. Additionally, the task
force may study related safety measures as requested by the Director.
In conducting its study, the task force shall, where possible, consult
with, among others, mine engineering and mine safety experts,
technology experts and relevant state and federal regulatory personnel.
4.3. The Director, or his designee, shall preside over all meetings
of the working group.
4.4. Prior to adopting or modifying any technological safety
requirement pursuant to W. Va. CSR Title 56 Series 4 the Director shall
request recommendations from the task force and shall consider their
written report on the subject in making any determination.
4.6. The Director shall convene the Mine Safety Technology Task
Force not less than once per month.
Sec. 56-4-5. Self-Contained Self-Rescue Devices Provided for Escape
from Mines.
5.1. Each miner underground shall be provided an SCSR in accordance
with the provisions of W. Va. Code Chapter 22A Article 2-55(f). In
addition, the operator shall provide storage caches of additional SCSRs
throughout the mine in accordance with a Storage Cache Plan approved by
the Director pursuant to W. Va. CSR Title 56 Series 4-6.
5.2. Each SCSR shall be approved for at least sixty (60) minutes by
the Mine Safety and Health Administration (MSHA) of the United States
department of labor: Provided, however, that nothing contained herein
shall preclude an operator from providing each miner underground an
SCSR with an MSHA approved rating less than sixty (60) minutes of
breathable air that is adequate to provide for twice the travel time as
defined in the chart in W. Va. CSR Title 56 series 4-6 to the nearest
storage cache, as defined in W. Va. CSR Title 56 Series 4-6, or an
escape facility.
5.3. Each operator shall provide training in the proper use of
SCSRs in simulated emergency situations in all required SCSR training,
provided, such simulations may be conducted on the surface. Training
shall be in compliance with all manufacturers requirements and shall
include but not limited to; the risks of toxic gases, manufacturer's
required daily inspections, donning and starting the SCSR, limitations
of the SCSR, ways to maximize duration of the unit, changing between
SCSRs, communicating without removing the mouthpiece, importance and
use of goggles, how to know if the device has failed and what to do if
it does.
5.4. Pursuant to W. Va. Code Chapter 22A Article 1-23, operators
and independent contractors shall report to the Director all SCSRs in-
service by manufacturer, model, serial number, mine/contractor ID#,
service dates, and results of required inspections. This information
shall be submitted electronically as defined by the Director, updated
quarterly and will include information on any units removed from
service along with the reasons.
5.5. The Director shall compile and analyze the results of this
information and distribute a report within 30 days by posting the
report on the MHS&T web page, http://www.wvminesafety.org
5.6. The Director shall establish a program to periodically
evaluate the quality of SCSRs in-service in West Virginia mines through
collection and testing of a statistically significant number of units
of differing ages and representative of models used in W. Va. mines.
The results of such evaluations will be published on the MHS&T web page
http://www.wvminesafety.org
Sec. 56-4-6. Self-Contained Self-Rescue Device Storage Cache Plan.
6.1. Within thirty (30) calendar days of the effective date of
these rules, all operators of all mines shall submit an SCSR Storage
Cache Plan for approval by the Director in accordance with W. Va. Code
Chapter 22A Article 1-36. The design, development, submission, and
implementation of the SCSR Storage Cache Plan shall be the
responsibility of the operator of each mine.
6.2. Operators shall revise all approved SCSR storage cache plans
and submit those to the Director no later than 60 days after any
amendments to these rules become final.
6.3. Within thirty (30) calendar days after submission of the SCSR
Storage Cache Plan, the Director shall either approve the plan as
submitted, or shall reject and return the plan to the operator for
modification and resubmission, stating in detail the reasons for such
rejection. If the plan is rejected, the Director shall give the
operator a reasonable length of time, not to exceed fifteen (15)
calendar days, to modify and resubmit such plan.
6.4. In developing the SCSR Storage Cache Plan, the operator shall
take into consideration the needs for SCSRs in the accidents described
in W. Va. Code Chapter 22A Article 2-66, the number of employees of the
particular mine, the location of the particular mine, the physical
features of the particular mine, and any other aspect of the particular
mine the operator deems relevant to the development of the Storage
Cache Plan.
6.5. Each SCSR Storage Cache shall be housed in a container
constructed as to protect the SCSRs from normal operational damage, be
made of a material that is non-combustible, shall be easy to open
during an emergency escape, shall be noted on the escape-way map,
required by W. Va. Code Chapter 22A Article 2-1 and included in the
mine rescue plan pursuant to W. Va. Code Chapter 22A Article 1-35(q).
6.6. One SCSR storage cache shall be placed at a readily available
location within five hundred (500) feet of the nearest working face in
each working section of the mine and each active construction or
rehabilitation site. Distances greater than five hundred (500) feet not
to exceed one thousand (1,000) feet, are permitted with approval of the
Director. However, where miners are provided with personal SCSRs MSHA
rated for less than sixty (60) minutes, travel to these storage caches
are not to exceed five (5) minutes as determined by the height/travel
time table as specified in W. Va. Code of State Rules Title 56 Series
4-6.9.2.
6.7. Each of the storage caches specified in Section 6.6 shall
contain two (2) SCSRs that will provide at least sixty (60) minutes of
MSHA rated duration per unit for each miner. When each miner carries an
SCSR that is MSHA rated for less than sixty (60) minutes the storage
cache shall hold devices equivalent to three (3) sixty (60) minute MSHA
rated SCSRs for each miner. The total number of SCSRs in a stationary
storage cache location will be based on the total number of miners
reasonably likely to be in that area. During crew changes involving a
mantrip at a working section or an active construction or
rehabilitation site, a number of mantrip cached sixty (60) minute or
greater MSHA rated SCSRs equal to the total number of miners reasonably
likely on the mantrip shall satisfy the total number of SCSRs required
for such personnel.
6.8 Operators shall ensure that storage caches required in Section
6.6 contain an escape kit containing a hammer, a tagline, a supply of
chemical light sticks, and an escape-way map required by W. Va. Code
Chapter 22A Article 2-1.
6.9. Additional storage caches of sixty (60) minute or longer MSHA
rated SCSRs shall also be placed in readily available locations
throughout the remainder of the mine as follows:
6.9.1. Beginning at the storage cache located at the working
section or active construction or rehabilitation site and beltlines,
pumping and bleeder areas, and continuing to the surface or nearest
escape facility leading to the surface pursuant to W. Va. Code Chapter
22A Article 2-60, the operator shall station additional storage caches
of sixty (60) minute or longer MSHA rated SCSRs containing a number of
additional SCSRs equal to or exceeding one each for the total number of
miners reasonably likely to be in that area at calculated intervals
that a miner may traverse in no more than thirty (30) minutes traveling
at a normal pace, taking into consideration the height of the coal seam
and utilizing the travel times as specified in W. Va. CSR Title 56
Series 4-6-9.2. If an SCSR has an MSHA approved duration greater than
sixty (60) minutes the intervals between storage caches shall be
calculated at the distance traveled in one-half the approved duration.
6.9.2. Said intervals shall be calculated in accordance with the
following:
HeightTravel/ MinuteHeightTravel/ Minute28 inches70 feet56
inches180 feet32 inches90 feet60 inches220 feet36 inches100 feet64
inches270 feet40 inches120 feet68 inches280 feet44 inches135 feet72
inches290 feet48 inches150 feet76 inches295 feet52 inches160 feet80
inches300 feet
6.10. The Storage Cache Plan shall include the following:
6.10.1. The size and physical features of the mine;
6.10.2. The maximum number of miners underground during each
working shift;
6.10.3. The proposed location of the various storage caches and the
emergency shelter/chamber in relation to miners underground; and
6.10.4.a. A schedule of compliance, which shall include:
6.10.4.a.1. A narrative description of how the operator will
achieve compliance with Sec. 56-4-6.
6.10.4.a.2. A schedule of measures, including an enforceable
sequence of actions with milestones, leading to compliance; and
6.10.4.a.3. A statement indicating when the implementation of the
proposed plan will be complete.
6.11. Each operator shall submit as attachments to its SCSR Storage
Cache Plan the following:
6.11.1. A statement that the analysis and evaluation required by
Section 6.3 of these rules has been completed;
6.11.2. A statement indicating the training dates for the use of
the SCSRs; and
6.11.3. The name of the person or persons representing the
operator, including his or her title, position, mailing address and
telephone number, who can be contacted by the Director for all matters
relating to the Storage Cache Plan and the weekly inspections of each
storage cache.
6.12. Within thirty (30) calendar days of the Director's approval
of the plan, the operator shall submit to the Director a copy of any
contract, purchase order, or other proof of purchase of such number of
additional SCSRs consistent with the operator's schedule of compliance.
6.13. After the Director has approved an operator's SCSR Storage
Cache Plan, the operator shall submit revisions to the plan at any time
that changes in the operational conditions result in substantive
modifications. In addition, at any time after the Director has approved
an operator's Storage Cache Plan, the operator may submit proposed
modifications or revisions to its plan along with the reasons therefore
to the Director.
6.13.1. Within thirty (30) calendar days after receipt by the
Director of any proposed revisions or modifications to the Storage
Cache Plan, the Director shall either approve or reject the revisions,
stating in detail the reasons for such rejection.
6.13.2. The Director may require modifications to a Storage Cache
Plan at any time following the investigation of a fatal accident or
serious injury, as defined by W. Va. CSR Title 36 Section 19-3.2, if
such modifications are warranted by the findings of the investigation.
6.14. If the Director, in his sole discretion, determines that an
operator has failed to provide an SCSR Storage Cache Plan or progress
report, has provided an inadequate SCSR Storage Cache Plan or progress
report, has failed to comply with its approved SCSR Storage Cache Plan
or compliance schedule, or has failed to provide a copy of any
contract, purchase order or other proof of purchase required under this
section, in an effort to delay, avoid or circumvent compliance with W.
Va. Code Chapter 22A Article 2-55 or these rules, the Director shall
issue a cessation order to the operator for the affected mine in
accordance with W. Va. Code Chapter 22A Article 1-15.
6.15. As provided at W. Va. Code Chapter 22A Article 2-55(f)(3) any
person that, without the authorization of the operator or the Director,
knowingly removes or attempts to remove an SCSR from the mine or mine
site with the intent to permanently deprive the operator of the device
or knowingly tampers with or attempts to tamper with such a device
shall be deemed guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than one
year nor more than ten years or fined not less than ten thousand
dollars nor more than one hundred thousand dollars, or both.
Sec. 56-4-7. Placement of Intrinsically Safe Battery-Powered Lights and
Lifeline Cords.
7.1. Intrinsically safe battery-powered strobe lights approved by
the Director shall be affixed to each storage cache of SCSRs and shall
operate continuously or be capable of automatic activation in the event
of an emergency.
7.1.1. All intrinsically safe battery-powered strobe lights affixed
to each storage cache of SCSRs shall be approved by the Director and
MSHA and maintained in accordance with applicable MSHA requirements.
7.1.2. Prior to approval of any MSHA certified intrinsically safe
battery-powered strobe light the Director shall have prepared an
independent analysis of the added risk incurred from added battery
powered devices throughout the mine in the event of a catastrophic
explosion.
7.1.3. The Director if determining that intrinsically safe battery-
powered strobe light present an acceptable risk, shall review those
rated intrinsically safe by MSHA and may approve them for use in West
Virginia mines. A list of approved intrinsically safe battery-powered
strobe lights shall be maintained on the MHS&T web site.
7.2. A reflective sign with the words ``SELF-RESCUER'' or ``SELF-
RESCUERS'' shall be conspicuously posted at each such storage cache and
reflective direction signs shall be posted leading to each storage
cache.
7.3. Lifeline cords installed in primary escape-ways shall be
attached to each storage cache container and extend from the last
permanent stopping to the surface or nearest escape facility, excluding
belt and track entries, and must:
7.3.1. Be made of flame-resistant material;
7.3.2. Be marked with reflective material every twenty-five (25)
feet;
7.3.3. Be located in such a manner for miners to use effectively to
escape; and
7.3.4. Have directional indicators signifying the route of escape
placed at intervals not exceeding one hundred (100) feet.
7.3.5.
In lieu of installed lifelines in track or belt entries, markers
such as floor mats with arrows, fish plate reflectors, red/green lasers
shall be installed at distances not to exceed 1,000 feet or line of
sight, or other equivalent devices may be used if approved by the
Director.
7.4. The operator shall conduct weekly inspections of each storage
cache of additional SCSRs, the affixed strobe light, and each lifeline
cord or other similar device to ensure that each has not been tampered
with and will function properly in the event of an emergency.
7.4. As provided in W. Va. Code Title 22A Article 2-55(f)(3) any
person that, without the authorization of the operator or the Director,
knowingly removes or attempts to remove an intrinsically safe battery-
powered lights or lifeline cord approved by the Director from the mine
or mine site with the intent to permanently deprive the operator of the
device or knowingly tampers with or attempts to tamper with such a
device shall be deemed guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less than
one year nor more than ten years or fined not less than ten thousand
dollars nor more than one hundred thousand dollars, or both.
Sec. 56-4-8. Emergency Shelters/Chambers.
8.1. An emergency shelter/chamber shall be maintained within one
thousand (1,000) feet of the nearest working face in each working
section. Such emergency shelter/chamber shall be approved by the
Director and shall be constructed and maintained in a manner prescribed
by the Director.
8.1.1. The Director may approve, as an alternative to a shelter/
chamber, an additional surface opening located no more than 1,000 feet
from the nearest working face and accurately located on escape-way maps
as required in W. Va. Code Chapter 22A Article 2-1.
8.2. The Director shall acquire, no later than July 1, 2006, the
necessary technical/engineering support needed to evaluate the
performance of emergency shelter/chamber components/systems, and to
review the effectiveness of emergency shelter/chamber plans.
8.3. The Director shall, no later than July 10, 2006, issue an open
opportunity for emergency shelter/chamber providers to submit products
for approval. The Director shall maintain a current list of pending and
approved emergency shelter/chambers on the West Virginia MHS&T web site
http://www.wvminesafety.org
8.3.1. Providers of emergency shelter/chamber seeking approval
shall submit documentation prescribed by the Director that shall
include a certification by an independent West Virginia licensed
professional engineer that the proposed product meets the requirements
set forth in Section 8, a description of the process used in making
that determination and a certification in the following form: ``I, the
undersigned, herby certify that this product, to the best of my
knowledge and belief, meets or exceeds all requirements set forth in W.
Va. CSR Title 56 Series 4-8.''
8.4. Any emergency shelter/chamber approved by the Director shall:
8.4.1. Provide a minimum of 48 hours life support (air, water,
emergency medical supplies, and food) for the maximum number of miners
reasonably expected on the working section;
8.4.2. Be capable of surviving an initial event with a peak
overpressure of 15 psi for 3 seconds and a flash fire as defined by
National Fire Protection Association standard NFPA-2113 of 300 degrees
Fahrenheit for 3 seconds;
8.4.3. Be constructed such that it will be protected under normal
handling and pre-event mine conditions;
8.4.4. Provide for rapidly establishing and maintaining an internal
shelter atmosphere of oxygen above 19.5%, carbon dioxide below 0.5%,
carbon monoxide below 50 ppm, and an apparent-temperature of 95 degrees
Fahrenheit;
8.4.5. Provide the ability to monitor carbon monoxide and oxygen
inside and outside the shelter/chamber;
8.4.6. Provide a means for entry and exit that maintains the
integrity of the internal atmosphere;
8.4.7. Provide a means for MSHA certified intrinsically safe power
if power required;
8.4.8. Provide a minimum eight quarts of water per miner;
8.4.9. Provide a minimum of 4,000 calories of food per miner;
8.4.10. Provide a means for disposal of human waste to the outside
of the shelter/chamber;
8.4.11. Provide a first aid kit as defined at W. Va. Code Chapter
22A Article 2-59(3)(b) independent of the section first aid kit
required by W. Va. Code Chapter 22A Article 2-59(3) and 2-60(f);
8.4.12. Have provisions for inspection of the shelter/chamber and
contents;
8.4.13. Contain manufacturer recommended repair materials;
8.4.14. Provide a battery-powered occupant-activated strobe light
of a model approved by the Director that is visible from the outside
indicating occupancy;
8.4.15. Provide provisions for communications to the surface; and
8.4.16. Provide proof of current approval for all items and
materials subject to MSHA approval.
8.5. No later than April 15, 2007 all underground mine operators
shall submit an emergency shelter/chamber plan for approval by the
Director in accordance with W. Va. Code Chapter 22A Article 1-36. The
design, development, submission, and implementation of the shelter/
chamber plan shall be the responsibility of the operator of each mine.
8.6. Within thirty (30) calendar days after submission of the
emergency shelter/chamber plan, the Director shall either approve the
emergency shelter/chamber plan or shall reject and return the plan to
the operator for modification and resubmission, stating in detail the
reason for such rejection. If the plan is rejected, the Director shall
give the operator a reasonable length of time, not to exceed fifteen
(15) calendar days, to modify and resubmit such plan.
8.7. Within 15 days of approval of the emergency shelter/chamber
plan by the Director, the underground mine operator shall submit as an
addendum to its emergency shelter/chamber plan a copy of any contract,
or purchase order, or other proof of purchase of any equipment required
to complete the emergency shelter/chamber and for installation and
ongoing maintenance
8.8. The operator shall submit certified progress reports no less
frequently than every sixty (60) calendar days until full compliance is
achieved.
8.9. After the Director has approved an operator's emergency
shelter/chamber plan, the operator shall submit revisions to the
emergency shelter/chamber plan at any time that changes in operational
conditions result in substantive modification. In addition, at any time
after approval, the operator may submit proposed modifications or
revisions to its plan along with reasons therefore to the Director.
Within thirty (30) days after receipt by the Director of any proposed
revisions or modifications to the emergency shelter/chamber plan, the
Director shall either approve or reject the revisions, stating in
detail the reasons for such rejection.
8.10. In developing the emergency shelter/chamber plan and any
revisions, the operator shall take into consideration the physical
features of the particular mine, emergency plans, advances in emergency
shelter/chamber technologies and any other aspect of the particular
mine the operator deems relevant to the development of the emergency
shelter/chamber plan.
8.11. A copy of the approved emergency shelter/chamber plan shall
be provided to the mine rescue teams providing coverage for the mine
and included in the mine rescue program required by W. Va. Code Chapter
22A Article 1-35(q). Copies of the most recent version shall be
available at the mine for emergency responders. As changes are made to
the approved emergency shelter/chamber plan, updated versions shall be
submitted to the above parties.
8.12. The proposed emergency shelter/chamber plan shall:
8.12.1. Describe the structure and operations of the emergency
shelter/chamber, the surveyed location of the shelter and any necessary
survey monuments for locating emergency drilling operations to the
shelter/chamber and the shelter/chamber's role in emergency response;
8.12.2. Ensure that proper emergency shelter/chamber use is
included in initial mine hazard training in such a manner that it is in
compliance with all manufacturer's requirements and is provided yearly
in addition to annual refresher training. All training shall be
recorded and made available upon request;
8.12.3. Ensure weekly inspections of emergency shelters/chambers
and contents shall be conducted by a certified mine foreman and/or mine
examiner and recorded in weekly ventilation examination book;
8.12.4. Ensure that weekly safety meetings review the current
location of applicable emergency shelters/chambers and results of the
latest inspection;
8.12.5. Ensure that all opening to emergency shelters/chambers
shall be equipped with easily removable tamper-proof tags such that a
visual indication of unauthorized access to the emergency shelter/
chamber can be detected; and
8.12.6. Ensure that the mine's communication center shall monitor
any communication systems associated with the emergency shelter/chamber
at all times that the mine is occupied.
8.13. If the Director, in his sole discretion, determines that an
operator has failed to provide an emergency shelter/chamber plan or
progress report, has provided an inadequate emergency shelter/chamber
plan or progress report, has failed to comply with its approved
emergency shelter/chamber plan or compliance schedule, or has failed to
provide a copy of any contract, purchase order or other proof of
purchase required under this section, in an effort to delay, avoid or
circumvent compliance with W. Va. Code Chapter 22A Article 2-55 or
these rules, the Director shall issue a cessation order to the operator
for the affected mine.
8.14. If there are no emergency shelters/chambers approved by May
29, 2007, operators shall install in lieu of an emergency shelter/
chamber, within one thousand (1,000) feet of the nearest working face
in each working section, storage caches of SCSRs sufficient to provide
each miner reasonably expected to be at the working section with no
less than sixteen (16) additional SCSRs rated by MSHA each for a
duration of sixty (60) minutes or greater, or an equivalent amount of
breathable air and barricading materials described at W. Va. Code
Chapter 22A Article 2-58(n).
8.15. The Director may require modifications to an emergency
shelter/chamber approval or an emergency shelter/chamber plan at any
time following the investigation of a fatal accident or serious injury,
as defined by W. Va. CSR Title 36 Series 19-3.2, if such modifications
are warranted by the findings of the investigation.
8.16. As provided in W. Va. Code Title 22A Articles 2-55(f)(3), 2-
55(g)(2), and 2-55(h)(2)any person that, without the authorization of
the operator or the Director, knowingly removes or attempts to remove
emergency shelter/chamber or its contents approved by the Director from
the mine or mine site with the intent to permanently deprive the
operator of the device or knowingly tampers with or attempts to tamper
with such a device shall be deemed guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than one year nor more than ten years or fined
not less than ten thousand dollars nor more than one hundred thousand
dollars, or both.
Sec. 56-4-9. Wireless Emergency Communication and Tracking/Locating
systems.
9.1. The Director shall require, in each underground mine, an
integrated communication and tracking/locating system maintained
consistent with W. Va. CSR Title 36 Series 5-3.2 and a component of
which shall be a communication center monitored at all times during
which one or more miners are underground. A wireless emergency
communication and tracking/locating device approved by the Director
shall be worn by each miner underground and shall be provided by the
operator.
9.2. As soon as practicable, the Director shall notify all
operators of the wireless emergency communication and tracking/locating
devices approved by the Director for use by each miner underground
pursuant to W. Va. Code Chapter 22A Article 2-55.
9.3. The Director shall acquire, no later than July 1, 2006, the
necessary technical/engineering support to evaluate the performance of
individual communication/tracking devices and review the effectiveness
of proposed communication/tracking plans.
9.4. The Director shall, no later than July 10, 2006, issue an open
opportunity for emergency communication and tracking/locating providers
to submit products for approval.
9.5. The Director shall require providers seeking approval submit
documentation certified by a licensed West Virginia professional
engineer that the product has been tested for functionality in West
Virginia underground mines, that the product has been or is in the
process of being approved as intrinsically safe by MSHA and other
criteria as the Director determines, a description of the process used
in making that determination and a certification in the following form:
``I, the undersigned, herby certify that this product, to the best of
my knowledge and belief, meets or exceeds all requirements set forth in
W. Va. CSR Title 56 Series 4-9'', that the product has been tested for
functionality in West Virginia underground mines, that the product has
been or is in the process of being approved as intrinsically safe by
MSHA and other criteria as the Director determines.
9.6. No later than July 31, 2007 all underground mine operators
shall submit a communication/tracking plan for approval by the Director
in accordance with W. Va. Code Chapter 22A Article 1-36. The design,
development, submission, and implementation of the communication/
tracking plan shall be the responsibility of the operator of each mine.
9.7. Within thirty (30) calendar days after submission of the
communication/tracking plan, the Director shall either approve the
communication/tracking plan, or shall reject and return the plan to the
operator for modification and resubmission, stating in detail the
reason for such rejection. If the plan is rejected, the Director shall
give the operator a reasonable length of time, not to exceed fifteen
(15) calendar days, to modify and resubmit such plan.
9.8. Within 15 days of approval by the Director, the underground
mine operator shall submit as an addendum to its plan, a copy of any
contract, or purchase order, or other proof of purchase of any
equipment required to complete the communication/tracking system and
for installation and ongoing maintenance.
9.9. The operator shall submit certified progress reports no less
frequently than every sixty (60) calendar days until full compliance is
achieved.
9.10. If the Director, in his sole discretion, determines that an
operator has failed to provide an communication/tracking plan or
progress report, has provided an inadequate communication/tracking plan
or progress report, has failed to comply with its approved
communication/tracking plan or compliance schedule, or has failed to
provide a copy of any contract, purchase order or other proof of
purchase required under this section, in an effort to delay, avoid or
circumvent compliance with W. Va. Code Chapter 22A Article 2-55 or
these rules, the Director shall issue a cessation order to the operator
for the affected mine under W. Va. Code Chapter 22A Article 1-15.
9.11. In developing the communication/tracking plan and any
revisions, the operator shall take into consideration the needs for
emergency communications and tracking/locating resulting form accidents
as described at W. Va. Code Chapter 22A Article 2-66(a), physical
features of the particular mine, emergency plans, existing
communication infrastructure, communications required under W. Va. Code
Chapter 22A Article 1-35(k)and 2-42 and W. Va. CSR Title 36 Series 2-2
and 5-2, advances in communication/tracking technologies and any other
aspect of the particular mine the operator deems relevant to the
development of the communication/tracking plan.
9.12. The proposed communication/tracking plan shall describe the
structure and operations of the separate or integrated communication/
tracking system(s) and its role in emergency response specific to the
mine shall be detailed and submitted to the Director and, once
approved, to the mine rescue teams providing coverage with an updated
mine rescue program pursuant to W. Va. Code Chapter 22A Article 1-
35(q). Copies of the most recent version shall be available at the mine
for emergency responders. As changes are made to the system, updated
versions shall be submitted to the above.
9.13. The proposed communication/tracking system shall include the
ability for:
9.13.1. A communication center monitored at all times during which
one or more miners are underground.
9.13.1.1. This center shall be staffed by miners holding a valid
underground miners certificate, and trained and knowledgeable of the
installed communications/ tracking systems, monitoring and warning
devices, travel ways, and mine layout.
9.13.1.2. Individuals not possessing a valid underground miner's
certificate but working full-time as a communication center operator on
or before May 25, 2006 shall be allowed to continue as communications
center operators at that mine provided they will have successfully
completed no later than December 31, 2006 a certified 80 hour
underground miners apprentice training program, as defined in W. Va.
CSR Title 48 Series 2-2.7(a), renewed annually pursuant to W. Va. CSR
Title 48 Series 2-2.8(a) and documentation is available for inspection
consistent with W. Va. CSR Title 36 Series 24-5;
9.13.2. Knowing the location of all miners immediately prior to an
event by tracking/locating device in the escape-ways, normal work
assignments, or notification of the communication center;
9.13.3. Knowing the location of miners in the escape-ways after an
event providing the tracking system is still functional;
9.13.4. Check-in and check-out with the communication center by
miners prior to entrance and exit from bleeders and remote or seldom
used areas of the mine (all times shall be logged);
9.13.5. Allowing two way communications coverage in at least two
separate air courses and at least one of which shall be an intake;
9.13.6. Maintaining communication/tracking after loss of outside
power and maintain function both inby and outby of the accident event
site with suitable supply of equipment for rapid reconnection;
9.13.7. Maintain a surface supply of communication/ tracking
devices for use by emergency rescue personnel;
9.13.8. Allow for communication to surface at all required
emergency shelters/chambers;
9.13.9. All miners and likely emergency responders shall be trained
in the use, limitations and inter-operability of all components of the
communication and tracking/locating system. This shall be incorporated
into ongoing required training. All training shall be recorded and made
available upon request;
9.14. The operator shall provide a schedule of compliance for the
communication/tracking plan, which shall include:
9.14.1. A narrative description of how the operator will achieve
compliance with above requirements;
9.14.2. A schedule of measures, including an enforceable sequence
of actions with milestones, leading to compliance; and
9.14.3. A statement indicating when the implementation of the
proposed plan will be complete.
9.15. The operator shall provide as attachments to its
communication/tracking plan:
9.15.1. A statement of the analysis and evaluation required in
developing its plan;
9.15.2. A statement indicating the initial training dates for
implementation of the communication/ tracking system and how the
communication/tracking system will be incorporated in other required
training;
9.15.3. A statement regarding how the communications/tracking
system will be tested and maintained; and
9.15.4. The name of the person or persons representing the
operator, including his or her title, mailing address, email address
and telephone number, who can be contacted by the Director for all
matters relating to the communication/tracking plan and weekly testing
of the system.
9.16. After the Director has approved an operator's communication/
tracking plan, the operator shall submit revisions to the
communications plan at any time that changes in operational conditions
result in a substantive modification in the communication/tracking
system. In addition, at any time after approval, the operator may
submit proposed modifications or revisions to its plan along with
reasons therefore to the Director. Within thirty (30) days after
receipt by the Director of any proposed revisions or modifications to
the communications/tracking plan, the Director shall either approve or
reject the revisions, stating in detail the reasons for such rejection.
9.17. The Director may require modifications to a communication/
tracking plan at any time following the investigation of a fatal
accident or serious injury, as defined by W. Va. CSR Title 36 Series
19-3.2, if such modifications are warranted by the findings of the
investigation.
9.18. As provided in W. Va. Code Chapter 22A Articles 2-55(g)(2)
and 2-55 (h)(2) any person that, without the authorization of the
operator or the Director, knowingly removes or attempts to remove any
component of an communication/tracking system approved by the Director
from the mine or mine site with the intent to permanently deprive the
operator of the component or knowingly tampers with or attempts to
tamper with such a system or its components shall be deemed guilty of a
felony and, upon conviction thereof, shall be imprisoned in the a state
correctional facility for not less than one year nor more than ten
years or fined not less than ten thousand dollars nor more than one
hundred thousand dollars, or both.
______
ENROLLED
Committee Substitute
for
H. B. 2670
(By Delegates Brown, Miley, Burdiss, Talbott and Overington)
[Passed March 10, 2007; in effect from passage.]
AN ACT to amend and reenact article 10, chapter 64 of the Code of
West Virginia, 1931, as amended, all relating generally to the
promulgation of administrative rules by the Department of Commerce and
the procedures relating thereto; legislative mandate or authorization
for the promulgation of certain legislative rules by various executive
or administrative agencies of the state; authorizing certain of the
agencies to promulgate certain legislative rules in the form that the
rules were filed in the State Register; authorizing certain of the
agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the Legislative Rule-
Making Review Committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended by the
Legislative Rule-Making Review Committee and as amended by the
Legislature; authorizing the Office of Miners Health, Safety and
Training to promulgate a legislative rule relating to protective
clothing and equipment; authorizing the Office of Miners Health, Safety
and Training to promulgate a legislative rule relating to standards for
certification of coal mine electricians; authorizing the Bureau of
Employment Programs to promulgate a legislative rule relating to
requiring agencies to revoke or not grant issue or renew approval
documents with employing units on the Bureau's default list;
authorizing the Division of Forestry to promulgate a legislative rule
relating to ginseng; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to commercial whitewater
outfitters; authorizing the Division of Natural Resources to promulgate
a legislative rule relating to special boating rules; authorizing the
Division of Natural Resources to promulgate a legislative rule relating
to deer hunting; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to wildlife disease management;
and authorizing the Division of Natural Resources to promulgate a
legislative rule relating to public use of campgrounds and recreation
areas in West Virginia state wildlife management areas under the
Division of Natural Resources.
Be it enacted by the Legislature of West Virginia:
That article 10, chapter 64 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
Article 10. Authorization for Department of Commerce to Promulgate
Legislative Rules.
Sec. 64-10-1. Office of Miners Health Safety and Training.
(a) The legislative rule filed in the State Register on the twenty-
seventh day of April, two thousand six, authorized under the authority
of section six, article two, chapter twenty-two-a, section thirty-
eight, article two, chapter twenty-two-a and section fifty-five,
article two, chapter twenty-two-a of this code, modified by the Office
of Miners Health Safety and Training to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of January, two thousand seven, relating
to the Office of Miners Health Safety and Training (protective clothing
and equipment, 56 CSR 4), is authorized with the following amendments:
On page one, subsection 1.1., by striking out the words ``these
emergency rules'' and inserting in lieu thereof the words ``this
rule'';
On page one, subsection 2.1., by striking out the word ``State's''
and inserting in lieu thereof the word ``state's'';
On page one, subsection 2.1., line four, by striking out the words
``these legislative rules'' and inserting in lieu thereof the words
``this rule'';
On page two, subsection 2.2., by striking out the words ``these
rules'' and inserting in lieu thereof the words ``this rule'';
On page two, subsection 3.1., by striking out the words ``as they
are defined'' and inserting in lieu thereof the word ``used'';
On page two, subsection 3.2., by striking out the words ``shall
mean'' and inserting in lieu thereof the word ``means'';
On page two, subsection 3.3., by striking out the words ``shall
herein refer'' and inserting in lieu thereof the word ``means'';
On page three, subsection 4.1., by striking out the words ``these
rules'' and inserting in lieu thereof the words ``this rule'';
On page four, subsection 5.2., by striking out ``department of
labor'' and inserting in lieu thereof ``Department of Labor'';
On page four, subsection 5.2., after the word ``Provided,'' by
striking out ``However,'';
On page four, subsection 5.3., line three, after the word
``training'' by striking out the comma and the word ``provided'' and
inserting in lieu thereof a colon and the words ``Provided, That'' and
by striking out the word ``manufacturers'' and inserting in lieu
thereof the word ``manufacturers''';
On page four, subsection 5.3., after the words ``limited to'' by
changing the semi-colon to a colon;
On page five, subsection 6.1., by striking out the words ``these
rules'' and inserting in lieu thereof the words ``this rule'';
On page five, subsection 6.2., by striking out the words ``these
rules'' and inserting in lieu thereof the words ``this rule'';
On page eight, subparagraph 6.10.4.a.1., by striking out Sec. 56-
4-6'' and inserting in lieu thereof ``56 CSR 4-6'';
On page nine, subsection 6.14., by striking out the words ``these
rules'' and inserting in lieu thereof the words ``this rule'';
On page nine, by striking out subsection 6.15. in its entirety;
On pages ten and eleven, by striking out subsection 7.4. in its
entirety;
On page eleven, by redesignating subdivision 8.1.1. as subsection
8.2. and redesignating the remaining subsections accordingly;
On page eleven, by redesignating subdivision 8.3.1. as subsection
8.5. and redesignating the remaining subsections accordingly;
On page fifteen, subsection 8.13., by striking out the words
``these rules'' and inserting in lieu thereof the words ``this rule'';
On pages fifteen and sixteen, by striking out subsection 8.15. in
its entirety;
On page seventeen, subsection 9.10., by striking out the words
``these rules'' and inserting in lieu thereof the words ``this rule'';
And,
On page twenty, by striking out subsection 9.18. in its entirety.
(b) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
sections six and thirty-eight, article one, chapter twenty-two-a of
this code, modified by the Office of Miners Health Safety and Training
to meet the objections of the Legislative Rule- Making Review Committee
and refiled in the State Register on the eighteenth day of January, two
thousand seven, relating to the Office of Miners Health Safety and
Training (standards for certification of coal mine electricians, 48 CSR
7), is authorized, with the following amendments:
``On page three, subsection 4.1., by striking out the words
``Section 8.2.1.'' and inserting in lieu thereof the words ``8.3'';
On page four, section five, by designating the last two paragraphs
of the section as subsections 5.2. and 5.3., respectively;
On page four, section six, by designating the second paragraph of
the section as subsection 6.2. and by redesignating the following
subsection accordingly;
On page five, section six, by designating the last paragraph of the
section as subsection 6.4.;
On page five, subsection 8.1., by striking out the words ``Section
8.2.1.'' and inserting in lieu thereof the words ``Section 8.3'';
On pages five and six, by striking out subdivision 8.2.1. in its
entirety and inserting in lieu thereof the following:
``8.3. Criteria and standards for alternative electrical training
programs must be adopted by unanimous approval of the Director and the
Board of Miner Training, Education and Certification. An alternative
electrical training program will not become effective until approved by
the Secretary of State as an emergency rule or by the Legislature as an
amendment to this rule.'' and redesignating the remaining subsection
accordingly;
And,
On page six, section nine, by designating the last paragraph of the
section as subsection 9.3.''.
Sec. 64-10-2. Bureau of Employment Programs.
The legislative rule filed in the State Register on the twenty-
sixth day of July, two thousand six, authorized under the authority of
section six, article two, chapter twenty-one-a, of this code, modified
by the Bureau of Employment Programs to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the twelfth day of January, two thousand seven, relating to
the Bureau of Employment Programs (requiring state agencies to revoke
or not to grant, issue or renew approval documents with employing units
on the bureau's default list, 96 CSR 1), is authorized.
Sec. 64-10-3. Division of Forestry.
The legislative rule filed in the State Register on the twenty-
second day of June, two thousand six, authorized under the authority of
section three-a, article one-a, chapter nineteen, of this code,
modified by the Division of Forestry to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the twelfth day of January, two thousand seven, relating to
the Division of Forestry (ginseng, 22 CSR 1), is authorized, with the
following amendments:
On page two, section three, by striking out ``3.1.'';
On page three, by redesignating subdivision 6.1.1. as subsection
6.2. and by redesignating the remaining subsections accordingly;
On page four, section seven, by striking out ``7.1.;
On page four, section eight, by striking out ``8.1.;
On page five, by redesignating subdivision paragraph 9.2.2.1. as
subdivision 9.2.2.;
On page five, section ten, by striking out ``10.1.;
On page six, section eleven, by striking out ``11.1.;
And,
On page six, subsection 13.2., after the words ``Freedom of
Information Act'' by striking out the remainder of the subsection and
inserting in lieu thereof the following: ``as having a significant
commercial value to the extent permitted by W. Va. Code Sec. 29B-1-
4(1).''.
Sec. 64-10-4. Division of Natural Resources.
(a) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
section twenty-three-a, article two, chapter twenty, of this code,
relating to the Division of Natural Resources (commercial whitewater
outfitters, 58 CSR 12), is authorized.
(b) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
section seven, article one, chapter twenty, of this code, relating to
the Division of Natural Resources (special boating rules, 58 CSR 26),
is authorized.
(c) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
section seven, article one, chapter twenty, of this code, modified by
the Division of Natural Resources to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the eighteenth day of December, two thousand six, relating
to the Division of Natural Resources (deer hunting, 58 CSR 50), is
authorized.
(d) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
section seven, article one, chapter twenty, of this code, modified by
the Division of Natural Resources to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the second day of November, two thousand six, relating to
the Division of Natural Resources (wildlife disease management, 58 CSR
69), is authorized, with the amendments:
On page 2, subsection 2.3, line eight, after the word ``landscape''
and the period, by striking the remainder of the subsection and
inserting in lieu thereof, the following: ``The Director shall, at
least annually after the establishment of a containment area, review
and evaluate any and all new information relating to wildlife disease
epidemiology and surveillance to determine whether any such designation
of a containment area should be modified or rescinded and shall report
these findings to the Natural Resources Commission. Prior to the
establishment of a containment area, the Director shall consult with:
2.3.a. wildlife biologists within the Wildlife Resources Section
that are knowledgeable of wildlife diseases;
2.3.b. a Department of Agriculture veterinarian knowledgeable of
wildlife diseases;
2.3.c. conservation officers familiar with local and regional
landscape features; and
2.3.d. the Natural Resources Commission.'';
And,
One page 3, by striking subsection 4.1 and inserting the following,
``4.1. It is illegal to feed cervids or other wildlife in a containment
area as determined by the Director and established for the management,
control or eradication of chronic wasting disease, bovine tuberculosis,
avian influenza or other wildlife diseases. Provided, that song and
insectivorous birds may be fed so long as the person or persons feeding
the same shall not do so in a manner that causes a congregation of
cervids or other wildlife or in a manner that said person or persons
reasonably should have known would cause a congregation of cervids or
other wildlife Provided further, that captive cervids may be fed inside
cervid facilities permitted by the Division of Natural Resources.''.
(e) The legislative rule filed in the State Register on the twenty-
eighth day of July, two thousand six, authorized under the authority of
section seven, article one, chapter twenty, of this code, modified by
the Division of Natural Resources to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on the second day of November, two thousand six, relating to
the Division of Natural Resources (public use of campgrounds and
recreation areas in West Virginia state wildlife management areas under
the Division of Natural Resources, 58 CSR 70), is authorized, with the
following amendments:
On page one, subsection 2.2., by striking out the word ``shall''
and inserting in lieu thereof the word ``may'';
On page two, section three, by striking out ``3.1.'';
On page two, subsection 2.18., by striking out the word ``shall''
and inserting in lieu thereof the word ``may'';
And,
On page two, by striking out subsection 3.2. in its entirety.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
TITLE 36
Legislative Rule
BOARD OF COAL MINE HEALTH AND SAFETY
Series 44
Mine Rescue Requirements for the Office of Miners' Health Safety and
Training
Sec. 36-44-1. General.
1.1. Scope--This rule governs mine rescue requirements for the
Office of Miners' Health Safety and Training. This rule in no way
should be construed as relieving mine operators from their requirement
to either have their own mine rescue team or contract coverage.
1.2. Authority.--W. Va. Code 22-6-4.
1.3. Filing Date.--June 13, 2006.
1.4. Effective Date.--July 13, 2006.
Sec. 36-44-2. Mine Rescue Requirements for the Office of Miners' Health
Safety and Training.
2.1. The Director shall develop a mine emergency operation plan for
the mine rescue teams that represent the Office of Miners' Health
Safety and Training that would include but is not limited to the
following criteria:
(a) Establish and maintain 2 mine rescue stations within the
OMHS&T; one located in the North area of the State and one located in
the South area of the State, at locations determined by the Director.
(b) To establish one (1) fully trained mine rescue team per each
OMHS&T's regional office;
(c) The members assigned to the mine rescue and recovery work may
be inspectors, instructors or other qualified employees of the office
as the director deems necessary. The director shall employ additional
employees as he deems necessary to fulfill the requirement of this
section;
(d) To provide the necessary fully equipped mine rescue vehicles
for each OMHS&T mine rescue station that would include but is not
limited to cellphones, satellite telephone, landline telephones
(teleconferencing), on-site radios and fax/copy machines, computers
with mine mapping software (CAD) and modems; and any other equipment
deemed necessary by the Director.
(e) To purchase new additional mine rescue equipment including but
is not limited to mask mounted radio connections and permissible radios
for underground wireless communications; new lifeline/communications
reels with a ``down hole'' speaker microphone system; new additional
handheld gas detectors and infra-red and electrochemical gas monitoring
equipment, gas sampling tubing, satellite telephones and four channels
of seismic inputs (geophones); and any other equipment as deemed
necessary by the Director.
2.2. As used in this section, mine rescue teams shall be considered
available where teams are capable of presenting themselves at the mine
site(s) within a reasonable time after notification of an occurrence
which might require their services. Rescue team members will be
considered available even though performing regular work duties or
while in an off-duty capacity.
(a) In the event of a fire, explosion or recovery operations in or
about any mine, the director is hereby authorized to assign any mine
rescue team to said mine to protect and preserve life and property. The
director may also assign mine rescue and recovery work to inspectors,
instructors or other qualified employees of the office as he or she
deems necessary.
(b) The agency's mine rescue team members shall be considered
``duly qualified emergency service worker'' as defined in W. Va. Code
Sec. 15-5-11.
(c) Each mine rescue team shall consist of five members and one
alternate, who are fully qualified, trained and equipped for providing
emergency mine rescue service. Each mine rescue team shall be trained
by a state certified mine rescue instructor.
(d) Each member of a mine rescue team must have been employed in an
underground mine for a minimum of one year. For the purpose of mine
rescue work only, miners who are employed on the surface but work
regularly underground meet the experience requirement. The underground
experience requirement is waived for those members of a mine rescue
team on the effective date of this statute.
(e) An applicant for initial agency mine rescue training shall
pass, on at least an annual basis, a physical examination by a licensed
physician certifying his or her fitness to perform mine rescue work. A
record that such examination was taken, together with pertinent data
relating thereto, shall be kept on file by the director.
(f) Upon completion of the initial training, all agency 's mine
rescue team members shall receive at least ninety-six (96) hours of
refresher training annually.
Sec. 36-44-3. Physical Requirements.
3.1. (a) Any person making application to participate in initial
agency mine rescue training shall have had an examination by a
physician, who shall certify that such applicant is physically fit to
perform mine rescue and recovery work while wearing a self-contained
oxygen breathing apparatus. The physical examination shall be completed
within thirty (30) days prior to scheduled initial training.
(b) A physician shall fill out a form prescribed by the Director,
and such form shall be presented to the Mine Rescue Training Instructor
five (5) days prior to scheduled initial training.
Sec. 36-44-4. Agency Mine Rescue Team Members Compensation; Worker's
Compensation.
4.1. (a) Agency mine rescue team members are to be paid a minimum
of $250 per month, with the rate thereafter to be determined annually
by the Director.
(b) When engaged in rescue work required by an explosion, fire or
other emergency at a mine, all members of the agency's mine rescue
teams assigned to rescue operations shall, during the period of their
rescue work, be employees of the operator of the mine where the
emergency exists, and shall be compensated by the operator at the rate
established in the area for such work. In no case shall this rate be
less than the prevailing wage rate in the industry for the most skilled
class of inside mine labor and paid according to the following
criteria:
Time and half--when on standby at hotel/home
Double time--when available on the surface
Triple time--when under apparatus underground
The Director will invoice the operator and ensure proper
distribution to the individual agency mine rescue team members.
(c) During the period of their emergency employment, members of
mine rescue teams shall be protected by the workers' compensation
subscription of such emergency employer.
______
Committee Substitute for
Senate Bill No. 68
(By Senators Tomblin, Mr. President, and Caruth, By Request of the
Executive)
[Originating in the Committee on Finance; reported February 15, 2007.]
A BILL to amend and reenact Sec. 22A-1-15 of the Code of West
Virginia, 1931, as amended; to amend said code by adding thereto a new
section, designated Sec. 22A-2-4a; to amend and reenact Sec. 22A-2-5 of
said code; to amend and reenact Sec. 22A-7-5 of said code; to amend
said code by adding thereto a new section, designated Sec. 22A-7-7; and
to amend said code by adding thereto a new article, designated
Sec. 22A-11-1, Sec. 22A-11-2, Sec. 22A-11-3 and Sec. 22A-11-4, all
relating generally to coal mine health and safety; authorizing Director
of the Office of Miners' Health, Safety and Training, upon a finding of
imminent danger, to issue closure orders for mines under certain
circumstances; prohibiting the use of a belt conveyor entry as an
intake air course and providing exceptions thereto; providing
requirements for the design, construction and inspection of seals and
the atmospheric monitoring of sealed areas; prohibiting use of certain
seals and providing for requirements for remediation of existing seals
under certain circumstances; prohibiting the use of bottom mining and
providing exceptions thereto; requiring continuing education for
underground mine foremen-fire bosses and setting course requirements;
continuing the Mine Safety Technology Task Force; legislative findings;
establishing powers and duties of task force; reimbursement; and task
force consultation in approval of safety devices.
Be it enacted by the Legislature of West Virginia:
That Sec. 22A-1-15 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding thereto a
new section, designated Sec. 22A-2-4a; that Sec. 22A-2-5 of said code
be amended and reenacted; that Sec. 22A-7-5 of said code be amended and
reenacted; that said code be amended by adding thereto a new section,
designated Sec. 22A-7-7; and that said code be amended by adding
thereto a new article, designated Sec. 22A-11-1, Sec. 22A-11-2,
Sec. 22A-11-3 and Sec. 22A-11-4, all to read as follows:
Article 1. Office of Miners' Health, Safety and Training;
Administration; Enforcement.
Sec. 22A-1-15. Findings, orders and notices.
(a) If upon any inspection of a coal mine an authorized
representative of the director finds that an imminent danger exists,
such the representative shall determine the area throughout which such
the danger exists and thereupon shall immediately issue forthwith an
order requiring the operator of the mine or the operator's agent to
cause immediately all persons, except those referred to in subdivisions
(1), (2), (3) and (4), subsection (c) (e) of this section, to be
withdrawn from and to be prohibited from entering such the area until
an authorized representative of the director determines that such the
imminent danger no longer exists.
All employees on the inside and outside of a mine who are
idled as a result of the posting of a withdrawal order by a
mine inspector shall be compensated by the operator at their
regular rates of pay for the period they are idled, but not
more than the balance of such shift. If such order is not
terminated prior to the next working shift, all such employees
on that shift who are idled by such order are entitled to full
compensation by the operator at their regular rates of pay for
the period they are idled, but for not more than four hours of
such shift.
(b) If upon any inspection of a coal mine an authorized
representative of the director finds that there has been a violation of
the law, but the violation has not created an imminent danger, he or
she shall issue a notice to the operator or the operator's agent fixing
a reasonable time for the abatement of the violation. If upon the
expiration of the period of time, as originally fixed or subsequently
extended, an authorized representative of the director finds that the
violation has not been totally abated, and if the director also finds
that the period of time should not be further extended, the director
shall find the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such the mine or the
operator's agent to cause immediately all persons, except those
referred to in subdivisions (1), (2), (3) and (4), subsection (c) (e)
of this section, to be withdrawn from and to be prohibited from
entering such the area until an authorized representative of the
director determines that the violation has been abated.
(c) If upon any inspection of a coal mine an authorized
representative of the director finds that an imminent danger exists in
an area of the mine, in addition to issuing an order pursuant to
subsection (a) of this section, the director shall review the
compliance record of the mine.
(1) A review of the compliance record conducted in accordance with
this subsection shall, at a minimum, include a review of the following:
(A) Any closure order issued pursuant to subsection (a) of this
section;
(B) Any closure order issued pursuant to subsection (b) of this
section;
(C) Any enforcement measures taken pursuant to this chapter, other
than those authorized under subsections (a) and (b) of this section;
(D) Any evidence of the operator's lack of good faith in abating
violations at the mine;
(E) Any accident, injury or illness record that demonstrates a
serious safety or health management problem at the mine;
(F) The number of employees at the mine, the size, layout and
physical features of the mine and the length of time the mine has been
in operation; and
(G) Any mitigating circumstances.
(2) If, after review of the mine's compliance record, the director
determines that the mine has a history of repeated significant and
substantial violations of a particular standard caused by unwarrantable
failure to comply or a history of repeated significant and substantial
violations of standards related to the same hazard caused by
unwarrantable failure to comply and the history or histories
demonstrate the operator's disregard for the health and safety of
miners, the director shall issue a closure order for the entire mine
and shall immediately issue an order requiring the operator of the mine
or the operator's agent to cause immediately all persons, except those
referred to in subdivisions (1), (2), (3) and (4), subsection (e) of
this section, to be withdrawn from and to be prohibited from entering
the mine until a thorough inspection of the mine has been conducted by
the office and the director determines that the operator has abated all
violations related to the imminent danger and any violations unearthed
in the course of the inspection.
(d) All employees on the inside and outside of a mine who are idled
as a result of the posting of a withdrawal order by a mine inspector
shall be compensated by the operator at their regular rates of pay for
the period they are idled, but not more than the balance of the shift.
If the order is not terminated prior to the next working shift, all the
employees on that shift who are idled by the order are entitled to full
compensation by the operator at their regular rates of pay for the
period they are idled, but for not more than four hours of the shift.
(c) (e) The following persons are not required to be withdrawn from
or prohibited from entering any area of the coal mine subject to an
order issued under this section:
(1) Any person whose presence in such the area is necessary, in the
judgment of the operator or an authorized representative of the
director, to eliminate the condition described in the order;
(2) Any public official whose official duties require him or her to
enter such the area;
(3) Any representative of the miners in such the mine who is, in
the judgment of the operator or an authorized representative of the
director, qualified to make coal mine examinations or who is
accompanied by such a person and whose presence in such the area is
necessary for the investigation of the conditions described in the
order; and
(4) Any consultant to any of the foregoing persons set forth in
this subsection.
(d) (f) Notices and orders issued pursuant to this section shall
contain a detailed description of the conditions or practices which
cause and constitute an imminent danger or a violation of any mandatory
health or safety standard and, where appropriate, a description of the
area of the coal mine from which persons must be withdrawn and
prohibited from entering.
(e) (g) Each notice or order issued under this section shall be
given promptly to the operator of the coal mine or the operator's agent
by an authorized representative of the director issuing such the notice
or order and all such the notices and orders shall be in writing and
shall be signed by such the representative and posted on the bulletin
board at the mine.
(f) (h) A notice or order issued pursuant to this section may be
modified or terminated by an authorized representative of the director.
(g) (i) Each finding, order and notice made under this section
shall promptly be given to the operator of the mine to which it
pertains by the person making such the finding, order or notice.
(j) Definitions.--For the purposes of this section only, the
following terms have the following meanings:
(1) ``Unwarrantable failure'' means aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of this chapter of the code; and
(2) ``Significant and substantial violation'' shall have the same
meaning as that established in 6 FMSHRC 1 (1984).
Article 2. Underground Mines.
Sec. 22A-2-4a. Use of belt air.
(a) Definitions.--For purposes of this section, ``belt air'' means
the use of a belt conveyor entry as an intake air course to ventilate
the working sections of a mine or areas where mechanized mining
equipment is being installed or removed.
(b) Upon the effective date of the enactment of this section, belt
air may not be used to ventilate the working sections of a mine or
areas where mechanized mining equipment is being installed or removed:
Provided, That if an alternative method of ventilation will at all
times guarantee no less than the same measure of protection afforded
the miners of an underground mine by the foregoing or if the
application of the foregoing to an underground mine will result in a
diminution of safety to the miners in the mine, the director may
approve the interim use of belt air pursuant to the following:
(1) For those operators using belt air pursuant to a ventilation
plan approved by the director in accordance with the provisions of
section two of this article prior to the effective date of the
enactment of this section, the director shall cause an inspection to be
made of the mine ventilation system and ventilation equipment. The
director may allow the continued use of belt air in that mine if he or
she determines that: (i) The use meets the minimum requirements of 30
CFR 75.350(b); and (ii) the use, as set forth in the ventilation plan
and as inspected, will at all times guarantee no less than the same
measure of protection afforded the miners of the mine if belt air were
not used, or that the prohibition of the use of belt air in the mine
will result in a diminution of safety to the miners in the mine.
(2) For those operators submitting on or after the effective date
of the enactment of this section, a ventilation plan proposing the use
of belt air to the director pursuant to section two of this article,
the director shall immediately upon receipt of the plan give notice of
the plan to the representative of the miners in that mine and cause any
investigation to be made that the director considers appropriate:
Provided, That the investigation shall include a review of any comments
on the plan submitted by the representative of miners in the mine. Upon
receiving the report of the investigation, the director shall make
findings of fact and issue a written decision, incorporating in the
decision his or her findings and an order approving or denying the use
of belt air pursuant to the terms of the ventilation plan. To approve
the use of belt air pursuant to a ventilation plan, the director shall,
at a minimum, determine that: (i) The operator's proposed use of belt
air meets the minimum requirements of 30 CFR 75.350(b); and (ii)
approval of the proposed use of belt air will at all times guarantee no
less than the same measure of protection afforded the miners of the
mine if belt air were not used, or that the prohibition of the use of
belt air in the mine will result in a diminution of safety to the
miners in the mine.
(3) The interim use of belt air shall be accurately reflected in
operator's plan of ventilation, as approved by the director in
accordance with the provisions of section two of this article.
(c) Upon completion of the independent scientific and engineering
review concerning the use of belt air and the composition and fire
retardant properties of belt materials in underground coal mining by
the technical study panel created pursuant to the provisions of 30 U.
S. C. Sec. 963 and the Secretary of the United States Department of
Labor's corresponding report to Congress pursuant to the review, the
Board of Coal Mine Health and Safety shall, within thirty days of the
Secretary of Labor's report to Congress, provide the Governor with its
recommendations, if any, for the enactment, repeal or amendment of any
statute or rule which would enhance the safe ventilation of underground
mines and the health and safety of miners: Provided, That at least
sixty days after the Secretary of Labor's report to Congress, the Board
of Coal Mine Health, Safety and Training shall promulgate emergency
rules regulating the use of belt air in light of that report: Provided,
however, That the provisions of subsections (a) and (b) of this section
shall expire and no longer have any force and effect upon the filing of
such emergency rules.
Sec. 22A-2-5. Unused and abandoned parts of mine.
(a) In any mine, all workings which are abandoned after the first
day of July, one thousand nine hundred seventy-one, shall be sealed or
ventilated. If the workings are sealed, the sealing shall be done with
incombustible material in a manner prescribed by the director and one
or more of the seals of every sealed area shall be fitted with a pipe
and cap or valve to permit the sampling of gases and measuring of
hydrostatic pressure behind the seals. For the purpose of this section,
working within a panel shall not be considered to be abandoned until
the panel is abandoned.
(b) Air that has passed through an abandoned area or an area which
is inaccessible or unsafe for inspection shall not be used to ventilate
any working place in any working mine, unless permission is granted by
the director with unanimous agreement of the technical and mine safety
review committee. Air that has been used to ventilate seals shall not
be used to ventilate any working place in any working mine. Air which
has been used to ventilate an area from which the pillars have been
removed shall not be used to ventilate any working place in a mine,
except that the air, if it does not contain 0.25 volume percent or more
of methane, may be used to ventilate enough advancing working places
immediately adjacent to the line of retreat to maintain an orderly
sequence of pillar recovery on a set of entries. Before sealed areas,
temporary or permanent, are reopened, the director shall be notified.
(c) On or after the effective date of the amendment and reenactment
of this section during the regular session of the Legislature in two
thousand seven, a professional engineer registered with the Board of
Registration for Professional Engineers pursuant to article thirteen,
chapter thirty of this code shall certify the design of all new seals
as meeting the criteria established by the director. Every seal design
shall have the professional engineer's certificate and signature, in
addition to his or her seal, in the following form:
``I the undersigned, do hereby certify that this seal design is, to
the best of my knowledge, in accordance with all applicable
requirements under state and federal law, rules and regulations.------
P.E.''
(d) On or after the effective date of the amendment and reenactment
of this section during the regular session of the Legislature in two
thousand seven, the director shall approve the construction of all new
seals in accordance with rules authorized in this section. The
construction shall also be:
(1) Certified by the mine foreman-fire boss of the mine as being in
accordance with the design certified by a professional engineer
pursuant to subsection (c) of this section; and
(2)(A) Constructed of solid concrete blocks and in accordance with
the other provisions of 30 CFR 75.335(a)(1); or
(B) Constructed in a manner that the director has approved as
having the capability to withstand pressure equal to or greater than a
seal constructed in accordance with the provisions of 30 CFR
75.335(a)(1).
(e) On or after the effective date of the amendment and reenactment
of this section during the regular session of the Legislature in two
thousand seven, the operator shall inspect the physical condition of
all seals and measure the atmosphere behind all seals in accordance
with protocols developed by the Board of Coal Mine Health and Safety,
pursuant to rules authorized in this section and consistent with a
mine-specific atmospheric measurement plan submitted to and approved by
the director. The atmospheric measurements shall include, but not be
limited to, the methane and oxygen concentrations and the barometric
pressure. The atmospheric measurements also shall be recorded with ink
or indelible pencil in a book kept for that purpose on the surface at a
location designated by the operator. The protocols shall specify
appropriate methods for inspecting the physical condition of seals,
measuring the mine atmosphere in sealed workings, and inerting the mine
atmosphere behind the seals, where appropriate.
(f)(1) In all mines containing workings sealed using seals
constructed in accordance with the provisions of 30 CFR 75.335(a)(2)
which are constructed: (A) Of cementitious foam blocks; or (B) with
methods or materials that the Board of Coal Mine, Health and Safety
determines do not provide an adequate level of protection to miners,
the operator shall, pursuant to a plan submitted to and approved by the
director, remediate the seals by either enhancing the seals or
constructing new seals in place of or immediately outby the seals.
After being remediated, all seals must have the capability to withstand
pressure equal to or greater than a seal constructed in accordance with
the provisions of 30 CFR 75.335(a)(1). The design, development,
submission and implementation of the remediation plan is the
responsibility of the operator of each mine. Pursuant to rules
authorized in this section, the Board of Coal Mine Health and Safety
shall specify appropriate methods of enhancing the seals.
(2) Notwithstanding any provision of this code to the contrary, if
the director determines that any seal described in subdivision (1) of
this subsection is incapable of being remediated in a safe and
effective manner, the mine foreman-fire boss shall, at least once every
twenty-four hours, inspect the physical condition of the seal and
measure the atmosphere behind the seal. The daily inspections and
measurements shall otherwise be performed in accordance with the
protocols and atmospheric measurement plan established pursuant to
subsection (e) of this section.
(g) Upon the effective date of the amendment and reenactment of
this section during the regular session of the Legislature in two
thousand seven, second mining of lower coal on retreat, also known as
bottom mining, shall not be permitted in workings that will be sealed
unless an operator has first submitted and received approval by the
director of a remediation plan that sets forth measures that will be
taken to mitigate the effects of remnant ramps and other conditions
created by bottom mining on retreat which can increase the force of
explosions originating in and emanating out of workings that have been
bottom mined. The director shall require that certification in a manner
similar to that set forth in subsection (c) of this section shall be
obtained by the operator from a professional engineer and the mine
foreman-fire boss for the plan design and plan implementation,
respectively.
(h) No later than sixty days after the effective date of the
amendment and reenactment of this section during the regular session of
the Legislature in two thousand seven, the Board of Coal Mine Health
and Safety shall develop and promulgate rules pursuant to the
provisions of section four, article six of this chapter to implement
and enforce the provisions of this section.
(i) Upon the issuance of mandatory health and safety standards
relating to the sealing of abandoned areas in underground coal mines by
the Secretary of the United States Department of Labor pursuant to 30
U. S. C. Sec. 811, as amended by section ten of the federal Mine
Improvement and New Emergency Response Act of 2006, the director,
working in consultation with the Board of Coal Mine Health and Safety,
shall, within thirty days, provide the Governor with his or her
recommendations, if any, for the enactment, repeal or amendment of any
statute or rules which would enhance the safe sealing of abandoned mine
workings and the health and safety of miners.
Article 7. Board of Miner Training, Education and Certification.
Sec. 22A-7-5. Board powers and duties.
(a) The board shall establish criteria and standards for a program
of education, training and examination to be required of all
prospective miners and miners prior to their certification in any of
the various miner specialties requiring certification under this
article or any other provision of this code. Such The specialties
include, but are not limited to, underground miner, surface miner,
apprentice, underground mine foreman-fire boss, assistant underground
mine foreman-fire boss, shotfirer, mine electrician and belt examiner.
Notwithstanding the provisions of this section, the director may by
rule further subdivide the classification classifications for
certification.
(b) The board may require certification in other miner occupational
specialties: Provided, That no new specialty may be created by the
board unless certification in a new specialty is made desirable by
action of the federal government requiring certification in a specialty
not enumerated in this code.
(c) The board may establish criteria and standards for a program of
preemployment education and training to be required of miners working
on the surface at underground mines who are not certified under the
provisions of this article or any other provision of this code.
(d) The board shall set minimum standards for a program of
continuing education and training of certified persons and other miners
on an annual basis: Provided, That the standards shall be consistent
with the provisions of section seven of this article. Prior to issuing
said the standards, the board shall conduct public hearings at which
the parties who may be affected by its actions may be heard. Such The
education and training shall be provided in a manner determined by the
director to be sufficient to meet the standards established by the
board.
(e) The board may, in conjunction with any state, local or federal
agency or any other person or institution, provide for the payment of a
stipend to prospective miners enrolled in one or more of the programs
of miner education, training and certification provided for in this
article or any other provision of this code.
(f) The board may also, from time to time, conduct such any
hearings and other oversight activities as may be required to ensure
full implementation of programs established by it.
(g) Nothing in this article empowers the board to revoke or suspend
any certificate issued by the director of the office of miners' health,
safety and training Office of Miners' Health, Safety and Training.
(h) The board may, upon its own motion or whenever requested to do
so by the director, deem consider two certificates issued by this state
to be of equal value or deem consider training provided or required by
federal agencies to be sufficient to meet training and education
requirements set by it, the director, or by the provisions of this
code.
Sec. 22A-7-7. Continuing education requirements for
underground mine foreman-fire boss.
(a) An existing underground mine foreman-fire boss certified
pursuant to this article shall complete the continuing education
requirements in this section within two years from the effective date
of this section and every two years thereafter. An underground mine
foreman-fire boss certified pursuant to this article on or after the
effective date of this section shall complete the continuing education
requirements in this section within two years of their certification
and every two years thereafter. The continuing education requirements
of this section may not be satisfied by the completion of other
training requirements mandated by the provisions of this chapter.
(b) In order to receive continuing education credit pursuant to
this section, a mine foreman-fire boss shall satisfactorily complete a
mine foreman-fire boss continuing education course approved by the
board and taught by a qualified instructor approved by the director.
The mine foreman-fire boss shall not suffer a loss in pay while
attending a continuing education course. The mine foreman-fire boss
shall submit documentation to the office certified by the instructor
that indicates the required continuing education has been completed
prior to the deadlines set forth in this subsection: Provided, That a
mine foreman-fire boss may submit documentation of continuing education
completed in another state for approval and acceptance by the board.
(c) The mine foreman-fire boss shall complete at least eight hours
of continuing education every two years.
(d) The content of the continuing education course shall include,
but not be limited to:
(1) Selected provisions of this chapter and 30 U. S. C. Sec. 801,
et seq.;
(2) Selected provisions of the West Virginia and federal
underground coal mine health and safety rules and regulations;
(3) The responsibilities of a mine foreman-fire boss;
(4) Selected policies and memoranda of the Office of Miners'
Health, Safety and Training, the Board of Coal Mine Health and Safety
and the Board of Miner Training, Education and Certification;
(5) A review of fatality and accident trends in underground coal
mines; and
(6) Other subjects as determined by the Board of Miner Training,
Education and Certification.
(e) The board may approve alternative training programs tailored to
specific mines.
(f) Failure to complete the requirements of this section shall
result in suspension of a mine foreman-fire boss certification pending
completion of the continuing education requirements. During the
pendency of the suspension, the individual may not perform statutory
duties assigned to a mine foreman-fire boss under West Virginia law.
The office shall send notice of any suspension to the last address the
certified mine foreman-fire boss reported to the director. If the
requirements are not met within two years of the suspension date, the
director may file a petition with the board of appeals pursuant to the
procedures set forth in section thirty-one, article one of this chapter
and, upon determining that the requirements have not been meet, the
board of appeals may revoke the mine foreman-fire boss' certification,
which shall not be renewed except upon successful completion of the
examination prescribed by law for mine foremen-fire bosses or upon
completion of other training requirements established by the board:
Provided, That an individual having his or her mine foreman-fire boss
certification suspended pursuant to this section who also holds a valid
mine foreman-fire boss certification from another state may have the
suspension lifted by completing training requirements established by
the board.
(g) The office shall make a program of instruction that meets the
requirements for continuing education set forth in this section
regularly available in regions of the state, based on demand, for
individuals possessing mine foreman-fire boss certifications who are
not serving in a mine foreman-fire boss capacity: Provided, That the
office may collect a fee from program participants to offset the cost
of the program.
(h) The office shall make available to operators and other
interested parties a list of individuals whose mine foreman-fire boss
certification is in suspension or has been revoked pursuant to this
section.
Article 11. Mine Safety Technology.
Sec. 22A-11-1. Legislative findings, purposes and intent.
The Legislature hereby finds and declares:
(1) That the first priority and concern of all persons in the coal
mining industry must be the health and safety of its most precious
resource--the miner;
(2) That in furtherance of this priority, the provisions of article
two of this chapter are designed to protect the health and safety of
this state's coal miners by requiring certain minimum standards for,
among other things, certain health and safety technology used by each
underground miner;
(3) That the proper implementation of this technology in West
Virginia's underground mines would benefit from the specialized
oversight of persons with experience and competence in coal mining,
coal mine health and safety and the expanding role of technology; and
(4) That, in furtherance of provisions of this section, it is the
intent of the Legislature to create a permanent task force which, on a
continuous basis, shall evaluate and study issues relating to the
commercial availability and functional and operational capability of
existing and emerging technologies in coal mine health and safety, as
well as issues relating to the implementation, compliance and
enforcement of regulatory requirements governing the technologies.
Sec. 22A-11-2. Mine Safety Technology Task Force continued;
membership; method of nomination and appointment.
(a) The Mine Safety Technology Task Force, created and existing
under the authority of the director pursuant to the provisions of
section six, article one of this chapter, is continued as provided by
this article.
(b) The task force shall consist of nine members who are appointed
as specified in this section:
(1) The Governor shall appoint, by and with the advice and consent
of the Senate, three members to represent the viewpoint of operators in
this state. When these members are to be appointed, the Governor shall
request from the major trade association representing operators in this
state a list of three nominees for each position on the task force. All
nominees shall be persons with special experience and competence in
coal mine health and safety. There shall be submitted with the list, a
summary of the qualifications of each nominee. For purposes of this
subdivision, the major trade association representing operators in this
state is that association which represents operators accounting for
over one half of the coal produced in mines in this state in the year
prior to the year in which the appointment is to be made.
(2) The Governor shall appoint, by and with the advice and consent
of the Senate, three members who can reasonably be expected to
represent the viewpoint of the working miners of this state. When
members are to be appointed, the Governor shall request from the major
employee organization representing coal miners within this state a list
of three nominees for each position on the task force. The highest
ranking official within the major employee organization representing
coal miners within this state shall submit a list of three nominees for
each position on the board. The nominees shall have a background in
coal mine health and safety.
(3) The Governor shall appoint, by and with the advice and consent
of the Senate, one certified mine safety professional from the College
of Engineering and Mineral Resources at West Virginia University;
(4) The Governor shall appoint, by and with the advice and consent
of the Senate, one attorney with experience in issues relating to coal
mine health and safety; and
(5) The ninth member of the task force is the director, or his or
her designee, who shall serve as chair of the task force. The director
shall furnish to the task force any secretarial, clerical, technical,
research and other services that are necessary to the conduct of the
business of the task force.
(c) Each appointed member of the task force shall serve at the will
and pleasure of the Governor.
(d) Whenever a vacancy on the task force occurs, nominations and
appointments shall be made in the manner prescribed in this section:
Provided, That in the case of an appointment to fill a vacancy,
nominations of three persons for each vacancy shall be requested by and
submitted to the Governor within thirty days after the vacancy occurs
by the major trade association or major employee organization, if any,
which nominated the person whose seat on the task force is vacant.
(e) Each member of the task force shall be paid the expense
reimbursement, as is paid to members of the Legislature for their
interim duties as recommended by the citizens legislative compensation
commission and authorized by law for each day or portion thereof
engaged in the discharge of official duties. In the event the expenses
are paid by a third party, the member shall not be reimbursed by the
state. The reimbursement shall be paid out of the state treasury upon a
requisition upon the state auditor, properly certified by the Office of
Miners' Health, Safety and Training. An employer shall not prohibit a
member of the task force from exercising leave of absence from his or
her place of employment in order to attend a meeting of the task force
or a meeting of a subcommittee of the task force, or to prepare for a
meeting of the task force, any contract of employment to the contrary
notwithstanding.
Sec. 22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other assistance to
the office related to the implementation of the new technological
requirements set forth in the provisions of section fifty-five, article
two, of this chapter, as amended and reenacted during the regular
session of the Legislature in the year two thousand six, and
requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director, shall
continue to study issues regarding the commercial availability, the
functional and operational capability and the implementation,
compliance and enforcement of the following protective equipment:
(1) Self-contained self-rescue devices, as provided in subsection
(f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in
subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in subsection
(h), section fifty-five, article two of this chapter; and
(4) Any other protective equipment required by this chapter or
rules promulgated in accordance with the law that the director
determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor and
evaluate:
(1) The potential for enhancing coal mine health and safety through
the application of existing technologies and techniques;
(2) Opportunities for improving the integration of technologies and
procedures to increase the performance and survivability of coal mine
health and safety systems;
(3) Emerging technological advances in coal mine health and safety;
and
(4) Market forces impacting the development of new technologies,
including issues regarding the costs of research and development,
regulatory certification and incentives designed to stimulate the
marketplace.
(d) On or before the first day of July of each year, the task force
shall submit a report to the Governor and the Board of Coal Mine Health
and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation
of the new technological requirements set forth in the provisions of
section fifty-five, article two, of this chapter, or rules promulgated
in accordance with the law;
(2) A summary of any emerging technological advances that would
improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or amendment
of any statute which would enhance technological advancement in coal
mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where possible,
consult with, among others, mine engineering and mine safety experts,
radiocommunication and telemetry experts and relevant state and federal
regulatory personnel.
Sec. 22A-11-4. Approval of devices.
Prior to approving any protective equipment or device that has been
evaluated by the task force pursuant to the provisions of subsection
(b), section three of this article, the director shall consult with the
task force and review any applicable written reports issued by the task
force and the findings set forth in the reports and shall consider the
findings in making any approval determination.
______
[Additional material supplied by Mr. Roberts follows:]
INJURY AND FATALITY STATISTICS BY UNION STATUS
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Union Union Union Union
Underground Surface Total Coal Underground percent of Union Surface percent of Union surface Total Union Total union Total union
CY Coal Coal Injuries Coal underground Underground Coal surface representation Coal % of representation
Injuries Injuries Injuries injuries Representation Injuries injuries Injuries injuries
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Injuries:
2002.......................................................... 4,192 1,847 6,039 1,047 25.0% 35.2% 413 22.4% 26.0% 1,461 24.2% 31.3%
2003.......................................................... 3,647 1,521 5,168 1,061 29.1% 34.6% 276 18.1% 25.4% 1,338 25.9% 30.5%
2004.......................................................... 3,709 1,420 5,129 1,116 30.1% 33.7% 274 19.3% 22.4% 1,391 27.1% 28.9%
2005.......................................................... 3,732 1,450 5,182 1,068 28.6% 32.6% 207 14.3% 20.5% 1,276 24.6% 27.5%
2006.......................................................... 3,700 1,467 5,167 969 26.2% N/A 226 15.4% N/A 1,195 23.1% N/A
2007.......................................................... 302 118 420 101 33.4% N/A 22 18.6% N/A 123 29.4% N/A
---------------------------------------------------------------------------------------------------------------------------------------------------------------------
Totals...................................................... 19,282 7,823 27,105 5,362 27.8% .............. 1,418 18.1% .............. 6,783 25.0% ..............
=====================================================================================================================================================================
Fatalities:
2002.......................................................... 17 10 27 3 17.6% 35.2% 0 0.0% 26.0% 3 11.1% 31.3%
2003.......................................................... 17 13 30 6 35.3% 34.6% 0 0.0% 25.4% 6 20.0% 30.5%
2004.......................................................... 17 11 28 4 23.5% 33.7% 1 9.1% 22.4% 5 17.9% 28.9%
2005.......................................................... 16 6 22 4 25.0% 32.6% 0 0.0% 20.5% 4 18.2% 27.5%
2006.......................................................... 39 8 47 5 12.8% N/A 1 12.5% N/A 6 12.8% N/A
2007.......................................................... 3 1 4 0 0.0% N/A 0 0.0% N/A 0 0.0% N/A
---------------------------------------------------------------------------------------------------------------------------------------------------------------------
Totals...................................................... 109 49 158 22 20.2% .............. 2 4.1% .............. 24 15.2% ..............
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: Mine Safety and Health Administration (injury and fatality data); Energy Information Administration (union representation data).
______
[Additional material supplied by Mr. Watzman follows:]
MINE SAFETY IMPROVEMENTS: PROGRESS FACTS
------------------------------------------------------------------------
Progress
------------------------------------------------------------------------
Self-contained self-rescuers...