[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
EVALUATING THE EFFECTIVENESS OF MSHA'S MINE SAFETY AND HEALTH PROGRAMS
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 16, 2007
__________
Serial No. 110-38
__________
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
35-186 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 Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut Dean Heller, Nevada
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 May 16, 2007..................................... 1
Statement of Members:
Altmire, Hon. Jason, a Representative in Congress from the
State of Pennsylvania, prepared statement of............... 87
Capito, Hon. Shelley Moore, a Representative in Congress from
the State of West Virginia................................. 9
Prepared statement of.................................... 11
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
Prepared statement of.................................... 3
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia................................. 6
Prepared statement of.................................... 8
Statement of Witnesses:
Bertoni, Dan, Director, Education, Workforce and Income
Security Team, Government Accountability Office............ 13
Prepared statement of.................................... 16
Grayson, R. Larry, Union Pacific/Rocky Mountain Energy
Professor of Mining and Director, Western U.S. Mining
Safety & Health Training and Translation Center............ 48
Prepared statement of.................................... 50
McAteer, J. Davitt, vice president, Wheeling Jesuit
University................................................. 53
Prepared statement of.................................... 55
Attachment 1: List of rules withdrawn by MSHA............ 88
Attachment 2: Sago Mine investigation memorandum for the
file (July 2006)....................................... 94
Internet address to the Aracoma Alma Mine report......... 100
Internet address to the Sago Mine Disaster report........ 100
Snare, Jonathan L., Acting Solicitor, U.S. Department of
Labor...................................................... 44
Prepared statement of.................................... 46
Stickler, Hon. Richard E., Assistant Secretary of Labor, Mine
Safety and Health Administration........................... 37
Prepared statement of.................................... 38
Responses to questions posed by Mr. Davis of Tennessee
and Mr. Kucinich....................................... 84
EVALUATING THE EFFECTIVENESS OF MSHA'S
MINE SAFETY AND HEALTH PROGRAMS
----------
Wednesday, May 16, 2007
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:33 a.m., in Room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kildee, Payne, Woolsey,
McCarthy, Kucinich, Wu, Bishop of New York, Sarbanes, Yarmuth,
Hare, Clarke, McKeon, Wilson, Kline, Price of Georgia, Kuhl,
Davis of Tennessee and Walberg.
Staff Present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
Policy Advisor for Subcommittee on Workforce Protections;
Michael Gaffin, Staff Assistant, Labor; Peter Galvin, Senior
Labor Policy Advisor; Jeffrey Hancuff, Staff Assistant, Labor;
Brian Kennedy, General Counsel; Thomas Kiley, Communications
Director; Rachel Racusen, Deputy Communications Director;
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
Director; Robert Borden, Minority General Counsel; Steve Forde,
Minority Communications Director; Ed Gilroy, Minority Director
of Workforce Policy; Rob Gregg, Minority Legislative Assistant;
Richard Hoar, Minority Professional Staff Member; Victor Klatt,
Minority Staff Director; Jim Paretti, Minority Workforce Policy
Counsel; Molly McLaughlin Salmi, Minority Deputy Director of
Workforce Policy; Linda Stevens, Minority Chief Clerk/Assistant
to the General Counsel; and Loren Sweatt, Minority Professional
Staff Member.
Chairman Miller. The Committee on Education and Labor will
come to order for the purpose of evaluating the effectiveness
of MSHA's mine safety and health programs.
At the hearing on March 28, this committee heard some very
strong criticisms of the U.S. Department of Labor and its Mine
Safety and Health Administration. We heard from those directly
impacted by MSHA's work that, despite its sweeping authority,
the agency moves at a glacial pace and often simply fails
outright to enact meaningful and effective safety standards.
Debbie Hamner spoke of her husband, Junior, who was killed
in the Sago mine. She said: ``If I knew then what I knew today,
I would have begged my husband not to work at Sago * * *
Congress mandated explosive-proof seals, and yet MSHA approved
the use of omega blocks at Sago * * * MSHA approved the
ventilation system at Sago that did not push the air away from
the seals. Therefore, when our miners tried to escape * * *
they could not.''
Scott Howard a miner told us that, in his 28 years
experience in the mines, he hadn't seen any evidence it was
safer, despite the more robust laws passed by Congress. He
said: ``Outside [of the mine], safety is first. When you go
underground, coal is all that matters.''
It is obvious from the hearings that MSHA must regain the
trust of the people who rely on the agency every day, miners
and their families. It appears that MSHA is not acting quickly
enough to implement the Mine Improvement and New Emergency
Response Act that Congress passed last year. In today's
hearing, we intend to examine why this is the case.
In many ways, it seems that MSHA has chosen to move at a
snail's pace when it could be acting far more aggressively. For
example, MSHA has yet to require mine operators to install
emergency rescue shelters in all underground mines. Just an
hour ago, I toured one of these shelters right here on the
grounds of the U.S. Capitol. The shelter can safely hold 35
miners for up to 96 hours with breathable air, potable water
and food.
The shelter I toured was one of a half dozen such shelters
which the State of West Virginia has approved as safe for
underground coal mines. The National Institute for Occupational
Safety and Health has advised us that they consider these
shelters safe and have no plans to ask West Virginia to stop
the deployment, to alter their requirement.
If these shelters can help the miners of West Virginia,
then they can help the miners in Kentucky, Illinois and Alabama
or any other mining State. These shelters are just an example
of how the States have acted more swiftly than MSHA to improve
the mine safety.
Congress established MSHA to protect the safety and health
of miners. Congress gave the agency a lot of discretion to do
that, and the courts have upheld that discretion time and
again. Yet, under the current administration, we see we have
plenty of examples where MSHA has not used its authority to
aggressively protect miners.
It is clear that MSHA sometimes needs a push from Congress.
Last year's MINER Act was such a push. It did not address all
of the lessons we learned and continue to learn from the
tragedies at Sago, Aracoma Alma and Darby, but it was a push in
the right direction.
In today's hearing, we want to hear about the progress MSHA
is making to implement that act of Congress, whether MSHA is
being sufficiently pro-active in improving mine safety even
beyond the MINER Act, and what tools MSHA may need to further
carry out its mission to properly regulate and enforce the law.
I look forward to these hearings and hearing that testimony.
At this time, I would like to recognize Congressman McKeon,
the senior Republican on the committee.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
Good morning.
At a hearing on March 28, this Committee heard some very strong
criticism of the U.S. Department of Labor and its Mine Safety and
Health Administration. We heard from those directly impacted by MSHA's
work that, despite its sweeping authority, the agency moves at a
glacial pace--and often simply fails or outright refuses to enact
meaningful and effective safety standards.
Debbie Hamner spoke of her husband Junior, who was killed at the
Sago mine: ``If I knew then what I know today, I would have begged my
husband not to work at Sago.* * * Congress mandated explosion-proof
seals, yet MSHA approved the use of omega blocks at Sago * * * MSHA
approved a ventilation plan at Sago that did not push the air away from
the seals. Therefore when our miners tried to escape * * * they could
not.''
Scott Howard, a miner, told us that in his 28-year experience in
mines, he hasn't seen any evidence that he is safer despite the more
robust laws passed by Congress. He said: ``Outside [of the mine],
safety is first. When you go underground, coal is all that matters.''
It is obvious from that hearing that MSHA must regain the trust of
the people who rely on the agency every day--miners and their families.
It appears that MSHA is not acting quickly enough to implement the Mine
Improvement and New Emergency Response Act that Congress passed last
year. In today's hearing, we intend to examine why this is the case.
In many ways, it seems that MSHA has chosen to move at a snail's
pace when it could be acting far more aggressively.
For example, MSHA has yet to require mine operators to install
emergency rescue shelters in all underground mines. Just an hour ago, I
toured one of these shelters right here on the grounds of the U.S.
Capitol. The shelter can safely hold 35 miners for up to 96 hours, with
breathable air, potable water, and food.
The shelter I toured is one of one a half dozen such shelters which
the State of West Virginia has approved as safe for underground coal
mines. The National Institute for Occupational Safety
and Health (NIOSH) has advised us they also consider these shelters
safe and have no plans to ask West Virginia to stop deployment or alter
their requirements.
If these shelters can help miners in West Virginia, then they can
help miners in Kentucky, Illinois, Alabama, or any other mining state.
These shelters are just one example of how states have acted more
swiftly than has MSHA to improve mine safety.
Congress established MSHA to protect the safety and health of
miners. Congress gave the agency a lot of discretion to do that, and
the courts have upheld that discretion time and again.
Yet under the current Administration, we have seen plenty of
examples where MSHA has not used its authority to aggressively protect
miners.
It's clear that MSHA sometimes needs a push from Congress. Last
year's MINER Act was one such push. It did not address all of the
lessons we learned and continue to learn from the tragedies at Sago,
Aracoma Alma, and Darby. But it was a push in the right direction.
In today's hearing, we want to hear about the progress MSHA is
making in implementing that Act of Congress, whether MSHA is being
sufficiently pro-active in improving mine safety even beyond the MINER
Act, and what tools MSHA may need to better carry out its mission to
properly regulate and enforce the law.
I look forward to hearing the testimony.
Thank you.
______
Mr. McKeon. Thank you, Mr. Chairman; and thank you for
convening this hearing.
I welcome today's witnesses and, in particular, Chairman
Rahall and Congresswoman Capito for testifying and also for
joining us shortly for our discussion with the other witnesses
we will have before us. I welcome you both back to the
committee room where you testified last year, along with your
West Virginia colleague, Mr. Mollohan, and five other House
Members, to provide feedback on the Federal response to last
year's mine tragedies, discussed mine safety technology and
outlined incentive initiatives to improve the safety of U.S.
mines.
Notably, that hearing of our Workforce Protection
Subcommittee was the only venue in Washington which all members
of the West Virginia delegation provided official testimony,
testimony that helped to trigger the most dramatic mine safety
overhaul in decades.
Congresswoman Capito, in the days following the Sago mine
tragedy, you helped provide valuable leadership to move the
investigative and legislative processes ahead. In particular, I
commend your work with my former committee colleagues, Mr.
Norwood and Mr. Boehner, for securing a Department of Labor
decision to reverse its policy of denying all requests under
the Freedom of Information Act for notes taken by Mine Safety
and Health Administration inspectors during the on-site mine
inspections until a case has been officially closed.
This policy change provided valuable information to
lawmakers, the news media and, most important of all, the
families of mine workers. In fact, just a week ago, MSHA issued
its final accident investigation report regarding the Sago
disaster; and I would note that without the work of
Congresswoman Capito none of the notes gathered by MSHA
inspectors at that mine would have been available to the public
until these past several days.
Mr. Stickler, I also thank you for agreeing to testify this
morning. I am particularly eager to hear your testimony and
answers to this panel's questions regarding MSHA's recently
completed investigation.
In its report, your agency concludes that lightning running
through a metal conduit in a sealed area of the mine served as
the source of the blast, igniting methane gas which in turn
blew out recently constructed omega block seals. I am hopeful
we can have an honest and open-minded conversation about what
led to these findings. Just as importantly, I am hopeful we can
do so in a fair and straightforward manner. Part of improving
practices both inside a mine and investigating incidents at a
mine is learning from past mistakes, and I hope we will do just
that.
Mr. Stickler, I also look forward to hearing from you about
your agency's implementation of last year's MINER Act. As I
understand it, 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.
Mr. Chairman, in addition to universal bipartisan support
in the Senate, the MINER Act enjoyed strong support from the
Mine Workers of America, the National Mining Association and a
bipartisan group of House Members from key mining States. In
the months ahead, just as we have demonstrated last year, I am
convinced this committee will continue to track this issue
closely and fairly with an eye toward all stakeholders.
With that, I again thank our witnesses and look forward to
this morning's discussion.
[The prepared statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
Member, Education and Labor Committee
Mr. Chairman, thank you for convening this hearing. I welcome
today's witnesses, and in particular, I'd like to thank Congressman
Rahall and Congresswoman Capito for testifying and also for joining us
shortly for our discussion with the other witnesses we'll have before
us. I welcome you both back to our Committee room, where you testified
last year--along with your West Virginia colleague, Mr. Mollohan--and
five other House Members--to provide feedback on the federal response
to last year's mine tragedies, discuss mine safety technology, and
outline initiatives to improve the safety of U.S. mines. Notably, that
hearing of our Workforce Protections Subcommittee was the only venue in
Washington at which all Members of the West Virginia delegation
provided official testimony--testimony that helped to trigger the most
dramatic mine safety overhaul in decades.
Congresswoman Capito, in the days following the Sago Mine tragedy,
you helped provide valuable leadership to move the investigative and
legislative processes ahead. In particular, I commend your work with my
former Committee colleagues, Mr. Norwood and Mr. Boehner, for securing
a Department of Labor decision to reverse its policy of denying all
requests under the Freedom of Information Act for notes taken by Mine
Safety and Health Administration inspectors during on-site mine
inspections until a case has been officially closed. This policy change
provided valuable information to lawmakers, the news media, and--most
important of all--the families of mine workers. In fact, just a week
ago, MSHA issued its final accident investigation report regarding the
Sago disaster--and I would note that without the work of Congresswoman
Capito, none of the notes gathered by MSHA inspectors at that mine
would have been available to the public until these past several days.
Mr. Stickler, I also thank you for agreeing to testify this
morning. I am particularly eager to hear your testimony and answers to
this panel's questions regarding MSHA's recently-completed
investigation. In its report, your agency concludes that lightning
running through a metal conduit in a sealed area of the mine served as
the source of the blast, igniting methane gas which in turn blew out
recently-constructed ``omega block'' seals. I am hopeful we can have an
honest and open-minded conversation about what led to these findings.
Just as importantly, I am hopeful we can do so in a fair and
straightforward manner. Part of improving practices, both inside a mine
and in investigating incidents at a mine, is learning from past
mistakes. I hope we will do just that.
Mr. Stickler, I also look forward to hearing from you about your
agency's implementation of last year's MINER Act. As I understand it,
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.
Mr. Chairman, in addition to universal, bipartisan support in the
Senate, the MINER Act enjoyed strong support from: the United Mine
Workers of America; the National Mining Association; and a bipartisan
group of House Members from key mining states. 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 an eye toward all
stakeholders. With that, I again thank our witnesses and look forward
to this morning's discussion.
______
Chairman Miller. Thank you.
Our first panel will be made up of Congressman Nick Rahall,
who has been a member of the United States House of
Representatives, representing West Virginia's Third
Congressional District, since 1977. He is currently the
chairman of the House Resources Committee. And Congresswoman
Shelley Moore Capito, representing West Virginia's Second
Congressional District since 2001.
Welcome, both of you, to the committee. We look forward to
your testimony; and we thank you for your leadership in the
aftermath of these accidents and the leadership of your State,
I think, in really showing the way to the rest of us and what
can be done to improve the margins of safety for workers and
for their families.
You will both be invited to sit and participate in the
hearing under the unanimous consent agreement. I know you have
busy schedules, but as long as you can remain with us, you are
more than welcome to stay and to participate.
We will begin, Congressman Rahall, with you.
STATEMENT OF THE HON. NICK RAHALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WEST VIRGINIA
Mr. Rahall. Thank you, Mr. Chairman. I certainly appreciate
your leadership in having this hearing today as well as that of
the ranking member, Mr. McKeon; and I want to thank you for
allowing me to testifyas well.
I think it should be noted that there are members of
victims' families from the Sago mine with us today. We
certainly commend Debbie Hamner and Sara Bailey for their
courageous leadership. Every time there is a hearing or event
here in our Nation's capital, they are here to ensure that the
loss of their loved ones was not in vain; and I salute their
courage and tenacity.
We are here in large part because of the sacrifices and
losses of the coal miners in my district and across West
Virginia and across our Nation. We are also here because of an
unfortunate lack of oversight for too many years by the
Congress, the people's branch, the miners' branch, if you will,
of our Federal Government.
The 1969 and 1977 acts provided the Secretary of Labor with
vast authorities to protect the health and safety of our
miners, including those we will be talking about today. But
somewhere along the way, probably as it lumbered along under
the control of too many managers who were beholding to the
industry, the agency lost sight of its priorities.
This committee, under your leadership, Chairman Miller, is
helping to ensure that the Mine Safety and Health
Administration remembers who its constituency really is; and I
commend you, Mr. Chairman, and members of this committee for
doing just that.
In recent weeks, we have seen the release of three weighty
reports that resulted from MSHA's investigations into the
disasters at Sago, Alma and Darby of last year. Each of these
reports contains insight into how enforcement of the law proved
inadequate and how an MSHA truly devoted to seeking better
safety technology could have saved lives.
Mr. Chairman, I am proud to be able to say that my home
State of West Virginia has been a real leader in pushing for
advances in the coal fields. The State of West Virginia is
taking steps that will save lives and prevent harm to the
health of those men and women who toil in an inherently
dangerous industry that is critically important to America's
economic prosperity and our national security. It has moved
ahead rapidly to improve more modern communications equipment
in emergency shelters.
MSHA could benefit from an injection of the sense of
urgency that has taken hold in my State. Unfortunately, MSHA
has not committed itself to any timeline that would mandate the
use of refuge chambers which we did visit this morning
together; and it refuses to reconsider its rules even
temporarily governing the use of belt air ventilation, which is
the subject of legislation that I have introduced, H.R. 576,
that is pending before this committee.
When it comes to introducing new technologies, coal miners
will undoubtedly benefit from a deliberative, well-researched
process. But it would be shameful if that process were used as
an excuse for further delay and inaction.
I said well before its passage that the MINER Act was a
good, solid start; and I commend this committee and I commend
the administration for signing the bill into law. It set
deadlines and improvements in emergency breathing and
communications, lifelines, seals and rescue teams. But, as I
said then and will say again today, it is only the beginning.
With the new funding that the Congress has provided to
NIOSH to expedite improvements in safety technology--and I
emphasize this point, Mr. Chairman--Federal research can
produce emergency breathing and communications equipment and
refuge chambers that go beyond anything that is being required
in West Virginia today. But the new technologies approved in my
State are an advanced generation that we all hope will spawn
even greater advances in the years ahead.
We should all view mine safety as an ever-changing, always
improving progression. So while my State is pressing operators
to invest millions to deploy specified technologies, it is also
asking for assurances from MSHA that those investments are not
being made in vain.
We are anxious for MSHA to eventually catch up. We are as
well hoping for cooperation so that when MSHA does catch up
with its own regulations and technology approvals, good actors
such as we have in West Virginia will not be penalized for
acting sooner rather than later.
Mr. Chairman, our responsibility today is oversight. The
Congress must continue to demand an MSHA that does its job and
does it aggressively; and when the cameras are turned off and
the media attention goes elsewhere, the Congress must continue
to demand that MSHA do its job. Neither MSHA nor the State of
West Virginia nor those of us in the Congress concerned with
miners' health and safety can ever rest, consider the job done.
Because the job will never be done. One-third of coal mines
still do not have at least two SCSRs, self-rescuers, for every
miner underground; truly wireless communications and tracking
is still not available; emergency response plans are still not
fully approved by MSHA; evacuation drills and training remain
inadequate; pre-shift examinations are too often incomplete;
and there are still too few mine rescue teams.
What is MSHA doing to correct these inefficiencies and when
will coal miners begin to see the difference underground? These
are the questions that merit answers, and I am sure the
committee will explore today.
I thank you again, Mr. Chairman, for affording me this
courtesy to appear before you. I commend you and members of
this committee for your dedication to coal miners' health and
safety, and I look forward to finding the answers to questions
and continuing to work together for the benefit of our miners
and their families.
Chairman Miller. Thank you.
[The statement of Mr. Rahall follows:]
Prepared Statement of Hon. Nick J. Rahall II, a Representative in
Congress From the State of West Virginia
I thank you, Mr. Chairman, for your courtesy in allowing me to
testify before the Committee today.
We are here--in large part--because of the sacrifices and losses of
the coal miners in my district and across West Virginia.
We are also here because of an unfortunate lack of oversight for
too many years by the Congress--the people's branch, the miners'
branch--of our federal government.
The 1969 and 1977 Acts provided the Secretary of Labor with vast
authorities to protect the health and safety of our miners--including
those we will be talking about today.
But somewhere along the way, probably as it lumbered along under
the control of too many managers who were beholden to the industry, the
agency lost sight of its priorities.
This Committee is helping to ensure that the Mine Safety and Health
Administration remembers who its constituency really is, and I commend
you, Mr. Chairman, and the Members of this Committee for that.
In recent weeks, we have seen the release of three weighty reports
that resulted from MSHA's investigations into the disasters at Sago,
Alma, and Darby last year.
Each of these reports contains insight into how enforcement of the
law proved inadequate and how an MSHA truly devoted to seeking better
safety technology could have saved lives.
Mr. Chairman, I am proud to be able to say that my State has been a
real leader in pushing for advances in the coalfields.
The State of West Virginia is taking steps that will save lives and
prevent harm to the health of those men and women who toil in an
inherently dangerous industry that is critically important to America's
economic prosperity and national security.
It has moved ahead rapidly to approve more modern communications
equipment and emergency shelters.
MSHA could benefit from an injection of the sense of urgency that
has taken hold in my state. Unfortunately, MSHA has not committed
itself to any timeline that would mandate the use of refuge chambers.
And it refuses to reconsider its rules, even temporarily, governing
the use of belt-air ventilation ( which is the subject of legislation I
introduced, H.R. 576, that is pending before this committee.
When it comes to introducing new technologies, coal miners will
undoubtedly benefit from a deliberative, well-researched process.
But it would be shameful if that process were used as an excuse for
further delay and inaction.
I said well before its passage that the MINER Act was a good solid
start. It set deadlines for improvements in emergency breathing and
communications, lifelines, seals, and rescue teams.
With the new funding that the Congress has provided to NIOSH to
expedite improvements in safety technology--and I emphasize this point,
Mr. Chairman--federal research can produce emergency breathing and
communications equipment and refuge chambers that go beyond anything
that is being required in West Virginia today.
But the new technologies approved in my State are an advanced
generation that we all hope will spawn even greater advances in the
years ahead. We should all view mine safety as an ever-changing,
always-improving progression.
So while my state is pressing operators to invest millions to
deploy specified technologies, it is also asking for assurances from
MSHA that those investments are not being made in vain.
We are anxious for MSHA to eventually catch up. We are, as well,
hoping for cooperation so that when MSHA does catch up with its own
regulations and technology approvals, good actors will not be penalized
for acting sooner rather than later.
Mr. Chairman, our responsibility today is oversight. The Congress
must continue to demand that MSHA do its job, and that it do it
aggressively.
And when the cameras are turned off and the media attention goes
elsewhere, the Congress must continue to demand that MSHA do its job.
One-third of coal mines still do not have at least two SCSRs for
every miner underground.
Truly wireless communications and tracking is still not available.
Emergency response plans are still not fully approved by MSHA.
Evacuation drills and training remain inadequate.
Pre-shift examinations are too often incomplete.
There are still too few mine rescue teams.
What is MSHA doing to correct these deficiencies, and when will
coal miners begin to see the differences underground?
These are the questions that merit answers. I thank you again, Mr.
Chairman, for affording me this courtesy and I look forward to finding
the answers to these questions and continuing to work together for the
benefit of miners and their families.
______
Chairman Miller. Congresswoman Capito?
STATEMENT OF THE HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mrs. Capito. Thank you, Chairman Miller, Ranking Member
McKeon and members of the committee, for the opportunity to
testify at the hearing on the effectiveness of MSHA's mine
safety and health programs.
It has been 17 months since the devastating month of
January, 2006, that saw 16 miners die in West Virginia,
including 12 at the Sago mine in my district. During this time,
we have worked together, the congressional delegation, the
committee and members from both sides of the aisle, to pass
critical mine safety legislation and provide needed oversight
to MSHA and NIOSH as they carry out their important
responsibilities.
It became clear immediately after Sago and Aracoma that
many aspects of mine safety and emergency response were
overlooked. The MINER Act addressed the obvious shortcomings in
our response to accidents. I am pleased that MSHA has
implemented emergency oxygen requirements pursuant to that Act
that will ensure a 96-hour supply of emergency oxygen or its
equivalent for all miners. Regulations for mine rescue teams
should be completed this year.
It is important that we monitor the work of MSHA, NIOSH and
the required interagency working group on communications
technology. Nearly a year has passed since the MINER Act's
passage, and we must continue to make progress and ensure that
the deadline for implementing two-way communications devices is
met, if not sooner, preferably sooner.
I am very pleased, as Congressman Rahall said, that our
State of West Virginia has been a national leader in terms of
beginning the process of getting rescue shelters to our miners.
In March of this year, the State approved five types of
shelters for use in the State's underground mines and gave mine
operators until April 15 to submit shelter plans to the Office
of Miners' Health, Safety and Training.
Progress has been slower on the national level in terms of
evaluating and approving these shelters. I understand the
concern of some regarding blast standards for a secondary blast
explosion and with respect to the chambers, but I also share
MSHA's belief expressed at hearings earlier this year--or last
year--that evacuation must be the first option for miners in an
emergency situation.
Nonetheless, NIOSH and MSHA must speed up their process and
ensure that miners across the country will have access to these
life-saving chambers as soon as possible. Again, it has been 17
months since Sago demonstrated that evacuation is not always
possible. West Virginia has taken steps towards ensuring our
miners will have access to these shelters; and the rest of the
Nation should, too.
Many of us pledged as we worked to pass the MINER Act we
would return to address further regulations and legislation
necessary to prevent future accidents following the completion
of reports of Sago and Aracoma. This hearing is a step towards
fulfilling that commitment, and thank you for this.
There is much we can learn from the accident reports.
Several things I think we need to act on and swiftly address.
First, the seals used in the Sago mine were not constructed
properly. When the omega block seals would not have withstood
the force of the Sago explosion that MSHA estimated at 93 psi
even if they were properly constructed, proper installations
could be the difference between life and death in a future
accident. It is important that mine operators, contractors and
MSHA focus on the proper installation of these seals.
The MINER Act requires MSHA to update its regulations on
sealing abandoned areas by the end of this year. I am pleased
MSHA has acted to increase the 20 psi alternative for seals,
but I hope the final emergency temporary standard will go
further in addressing some of the issues we saw at Sago.
MSHA's Sago report found that energy from a lightning
strike travelled along an ungrounded pump cable left in a
sealed-off area. Current regulations would not require that
pump cable to be removed; and, indeed, it is commonplace for
items to be left behind the seals when an area is abandoned.
Clearly, this issue must be re-evaluated by MSHA and, if
necessary, by this committee to ensure that items that could
turn into conductors are not allowed to remain in a sealed
area.
The explosive range for methane is between 5 and 15 percent
of the air. In a sealed area, methane will start below the
explosive range, pass through the range and eventually become
too highly concentrated to explode. This makes it crucial that
companies and inspectors monitor methane levels in their
abandoned areas, yet no regulation requires the monitoring of
air in the sealed area. It is almost unbelievable that 1992
MSHA regulations required a sampling tube that would allow for
the testing of air in the sealed-off areas but failed to
actually require that testing be carried out.
We know today that MSHA's 1992 regulation on seals were
wrong. This underscores the importance that MSHA get it right
when it comes to the forthcoming regulation on seal strength
and addressing the removal of items in sealed areas.
The Aracoma tragedy points out the need for an increase of
inspectors; and we have worked on that and funded that--an
increase we have already begun--in order to catch obvious
violations.
I am anxiously awaiting the results of MSHA's internal
investigation of its own actions in the lead-up to these
accidents but in particular the one in Aracoma. MSHA inspectors
had been at the mine just weeks before the accident and failed
to note critical safety violations and see that they were
addressed. We need to know why and take the necessary steps,
whether it is updated training for inspectors or another
solution, to ensure that all hazards, and particularly those
with the potential to cause a loss of life, are identified.
The MINER Act was a positive step in getting serious about
the safety of our Nation's coal mines, as we said, when it
passed, but it is not a stopping point. Congress must ensure
that MSHA properly and expediently fulfills its obligations
under the law and continues oversight to ensure that
requirements are not diluted over time. It is important to note
that most of the provisions of the MINER Act did not grant MSHA
new authority. It instead required the agency to use its
existing authority to address critical facets of mine safety
and rescue and response. We should stand ready to legislate
again to address issues that could prevent accidents and lead
to safer coal mines if the agency needs additional authority or
fails to act with necessary regulations.
On behalf of the many miners in West Virginia who I
represent, I want to thank you. I want to thank this committee
for your dedication to ensuring safer mines, and I look forward
to working with you as we continue our efforts. I look forward
to answering any questions you might have and joining you to
ask questions to the MSHA and thank you for the opportunity.
[The statement of Mrs. Capito follows:]
Prepared Statement of Hon. Shelley Moore Capito, a Representative in
Congress From the State of West Virginia
Chairman Miller, Ranking Member McKeon, and Members of the
Committee, thank you for the opportunity to testify at this hearing on
the effectiveness of MSHA's mine safety and health programs. It has
been 17 months since the devastating month of January 2006 that saw 16
miners die in West Virginia--including 12 at the Sago mine in my
district.
During this time we have worked together--West Virginia's
congressional delegation, this committee, and other members from both
sides of the aisle to pass critical mine safety legislation and provide
needed oversight to MSHA and NIOSH as they carry out their important
responsibilities. It became clear immediately after Sago and Aracoma
that many aspects of mine safety and emergency response were
overlooked.
The MINER Act addressed the obvious shortcomings in our response to
accidents. I am pleased that MSHA has implemented emergency oxygen
requirements pursuant to the act that will ensure a 96 hour supply of
emergency oxygen or its equivalent for all miners. Regulations for mine
rescue teams should be completed this year. It is important that we
monitor the work of MSHA, NIOSH and the required interagency working
group on communications technology. Nearly a year has passed since the
MINER Act's passage and we must continue making progress and ensure
that the deadline for implementing two-way communication devices in
mines is met.
I am very pleased that my state of West Virginia has been a
national leader in terms of beginning the process of getting rescue
shelters to miners. In March of this year, the state approved 5 types
of shelters for use in the states underground mines and gave mine
operators until April 15 to submit shelter plans to the Office of
Miners' Health, Safety, and Training. One of these approved shelters,
the inflatable LifeShelter was demonstrated outside prior to today's
hearing.
Progress has been slower on the national level in terms of
evaluating and approving these shelters. I understand the concerns of
some regarding blast standards for a secondary explosion with respect
to the refuge chambers. I also share MSHA's belief--expressed at
hearings last year during consideration of the MINER Act that
evacuation must be the first option for miners in an emergency
situation.
Nonetheless, NIOSH and MSHA must speed up their process and ensure
that miners across the country will have access to these life saving
chambers as soon as possible. Again, it has been 17 months since Sago
demonstrated the evacuation is not always possible. West Virginia has
taken steps towards ensuring that our miners will have access to
shelters, and the rest of the nation should too.
Many of us pledged as we worked to pass the MINER ACT that we would
return to address further regulations or legislation necessary to
prevent future accidents following the completion of reports from the
Sago and Aracoma accidents. This hearing is a step towards fulfilling
that commitment, and there is much we can learn from the accident
reports.
Both MSHA and the West Virginia Office of Mine Safety and Training
found that none of the safety violations at the Sago mine directly
contributed to the explosion or its deadly result. However, clearly
issues raised that MSHA and the mining community should learn from and
act swiftly to address. First, the seals used in the Sago mine were not
constructed properly. While the OMEGA block seals would not have
withstood the force of the Sago explosion that MSHA estimates was
greater than 93 psi, even if they were properly constructed, proper
installation of seals could be the difference between life and death in
a future accident. It is important that mine operators, contractors,
and MSHA inspectors focus on the proper installation of seals.
The MINER Act requires MSHA to update its regulations on the
sealing of abandoned areas by the end of this year. I am pleased that
MSHA has acted to increase the 20 psi requirement for alternative
seals, but I hope that the final Emergency Temporary Standard will go
further in addressing some of the issues we discovered at Sago.
MSHA's Sago report found that energy from a lightning strike
traveled along an ungrounded pump cable left in the sealed off area.
Current regulations would not require that pump cable to be removed,
and indeed it is commonplace for items to be left behind the seals when
an area is abandoned to mining.
Clearly this issue must be reevaluated by MSHA and if necessary, by
this committee to ensure that items that could turn into conductors are
not allowed to remain in sealed areas.
The explosive range for methane is between 5 and 15 percent of the
air. In a sealed area methane will start below the explosive range,
pass through the range, and eventually become too highly concentrated
for an explosion due to a lack of oxygen.
This makes it crucial that companies and inspectors monitor methane
levels in abandoned areas so that they know if the concentration is
becoming inert or if the mixture is within a danger zone. Yet no
regulation requires the monitoring of air in the sealed area. It is
almost unbelievable that 1992 MSHA regulations required a sampling tube
that would allow for the testing of the air in sealed off areas, but
failed to actually require that testing be carried out.
We know today that MSHA's 1992 regulations on seals were wrong.
This underscores the importance that MSHA get it right when it comes to
the forthcoming regulation on seal strength and address the removal of
items left in the abandoned areas.
The Aracoma tragedy points out the need for an increase in
inspectors at MSHA--an increase we have already begun--in order to
catch obvious violations. At Aracoma, critical stoppings between the
No. 7 Belt Air course and the intake air course for the 2 Section that
could have prevented smoke from entering the escapeway were not in
place, the mine's approved ventilation plan was not followed, and
tragically the valve that provided water to the mine's fire suppression
system was closed.
I am anxiously awaiting the results of MSHA's internal review of
its own actions in the lead up to these accidents, but in particular at
Aracoma.
MSHA inspectors had been in the mine just weeks before the accident
and failed to note critical safety violations and see that they were
corrected.
We need to know why, and take the necessary steps--whether it is
updated training for inspectors or another solution to ensure that all
hazards, and particularly those with the potential to cause loss of
life are identified.
The MINER Act was a positive start in getting serious about the
safety of our nation's coal mines. As we said when it passed, however,
it is not a stopping point. Congress must ensure that MSHA properly and
expediently fulfills its obligations under the law and continues
oversight to ensure that requirements are not diluted over time. It is
important to note that most provisions of the MINER Act did not grant
MSHA new authority--it instead required the agency to use its existing
authority to address critical facets of mine rescue and response. We
should stand ready to legislate again to address issues that could
prevent accidents and lead to safer coal mines if the agency needs
additional authority or fails to act with necessary regulations.
On behalf of the many miners in West Virginia whom I represent, I
want to thank this committee for your dedication to ensuring safer
mines and I look forward to working with you as we continue our efforts
to protect miners. I look forward to answering your questions and
joining you to ask questions of MSHA witnesses.
______
Chairman Miller. Thank you both very much for your
testimony; and, again, if you have questions, we would invite
you to participate and sit as part of the committee.
We will then begin with our second panel. The first member
of the panel is Dan Bertoni, who is the Director of the
Education, Workforce and Income Security Team at the Government
Accountability Office.
Next will be Richard Stickler, who is the Assistant
Secretary of Mine Safety and Health at the Department of Labor.
Assistant Secretary Stickler was Director of the Pennsylvania
Bureau of Deep Mine Safety from 1997 to 2003. He received his
bachelor of science degree in general engineering from Fairmont
State University in 1968 and certified as a mine safety
professional by the International Society of Mine Safety
Professionals.
Next, Jonathan Snare, who is the Acting Solicitor of Labor.
Solicitor Snare served as Acting Assistant Secretary of the
Occupational Safety and Health Administration. He received his
BA from the University of Virginia and law degree from
Washington Lee University.
Professor R. Larry Grayson has chaired the Mine Safety and
Health Technology and Training Commission established by the
mining industry in 2006 after the serious accidents of that
year. Dr. Grayson is Chairman of the Department of Mining and
Nuclear Engineering at the University of Missouri-Rolla and was
previously in charge of mine safety work at the National
Institute of Occupational Safety and Health and received his
Ph.D. in engineering of mines at West Virginia University.
J. Davitt McAteer has served in the Clinton administration
both as Assistant Secretary of Mine Safety and Health and as
Acting Solicitor. He was appointed by the Governor of West
Virginia to chair the panel that investigated the causes of the
Sago and Aracoma Alma accidents, and Mr. McAteer is vice
president for sponsored programs at the Wheeling-Jesuit
University in West Virginia. He graduated from West Virginia
University and College of Law.
Welcome to the committee. We look forward to your
testimony. When you begin to testify, a green light will go on;
and then, when you have a minute remaining, which will be about
4 minutes into your testimony, a yellow light will go on and
then a red light. But we will certainly allow you to finish
your thoughts and the purposes of your remark.
Congressman Rahall mentioned that we were joined by some
family members here of the accidents. He mentioned Debbie
Hamner and Sara Bailey who are here, but they have also been
joined by Peggy Cohen, who is the daughter of Fred Ware who was
killed in the accidents. We welcome them and again thank them
for their commitment on this issue.
Mr. Bertoni, we are going to begin with you.
STATEMENT OF DAN BERTONI, DIRECTOR, EDUCATION, WORKFORCE AND
INCOME SECURITY TEAM, GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Bertoni. Thank you, Mr. Chairman, members of the
committee. Good morning. I am pleased to be here to discuss
worker safety issues in underground coal mining.
The tragic accidents that occurred early last year brought
the Nation's attention to the daily perils facing mine workers.
In response, the Congress and the Department of Labor's Mine
Safety and Health Administration, or MSHA, took steps to
prevent future fatalities. The Mine Improvement and New
Emergency Response Act of 2006 required mine operators and MSHA
to undertake a variety of reforms to enhance emergency
response. MSHA also implemented several new safety and health
standards. However, additional actions are needed to further
enhance mine safety.
My testimony today is based on two GAO reports issued today
and will focus on three key areas: challenges the underground
coal mines face in preparing for mine emergencies; MSHA's role
in miner training and other activities critical to mine safety
and health; and how civil penalties are assessed when mine
operators violate safety and health standards.
In summary, underground coal mine operators reported
challenges meeting new training and mine rescue team
requirements. In March, 2006, MSHA directed mine operators to
conduct emergency evacuation drills every 90 days, including
drills that simulate actual emergency conditions such as fire
or explosions. However, as of February, 2007, we found that
half the mines had not yet conducted any simulation drills,
primarily due to lack of special training facilities and the
cost of such training.
We also found that although MSHA had information on
alternative tools and resources for conducting training under
simulated conditions, such as smoke-filled mines, it was not
being systematically shared with all mine operators.
Mine operators also anticipate some difficulties stemming
from the MINER Act requirement that rescue teams train at least
annually at the mines they serve. This change could pose a
challenge for rescue teams that serve many or all of the
particular State's mines. For example, depending on how the
final regulations are implemented, one official told us its
team could be required to conduct 120 annual training exercises
compared, to the 12 it currently conducts.
In anticipation of the new requirements, some operators
have begun making changes to their rescue teams, while others
are still assessing the potential costs of training and
equipping such teams.
Regarding MSHA, we identified opportunities for the agency
to improve its oversight of miner training and to take
additional steps to ensure that it maintains a skilled cadre of
mine inspectors. MSHA approves mine operators' training plans
and inspects their training records but does not have
consistent standards for certifying instructors, current
information on instructor location or skills or any continuing
education requirements for approved instructors to ensure that
they update their knowledge of emerging safety and technology
issues. MSHA also does not adequately evaluate training
sessions or assess how well miners are learning the skills
being taught.
To better position itself to address future workforce
needs, MSHA has taken steps to improve the mine inspector
hiring process, including developing an upfront screening tool
to assess the applicant's skills and expedite hiring. The
agency also obtained authority to hire inspectors under a
broader range of pay scales, thus enhancing its ability to
obtain and retain quality staff.
However, MSHA has not yet developed a comprehensive
strategy to address impending retirements to ensure that it
continues to meet its mission goal of enhancing mine safety.
Over 40 percent of MSHA's inspectors will be eligible for
retirement over the next 5 years, and between 32 and 47 percent
will likely leave in their first year of eligibility. We have
recommended that MSHA develop tactical and strategic plans with
specific goals for mitigating the loss of seasoned and
experienced inspectors.
Finally, in regard to penalties, we found that, while most
proposed penalties are paid by mine operators, a small
percentage of cases involving more serious and higher dollar
amounts are appealed and often substantially reduced. Between
1996 and 2006, MSHA assessed about 500,000 penalties. About
32,000 penalties were contested. Nearly half of those were
ultimately reduced by about 50 percent, regardless of the level
of gravity and negligence originally noted by MSHA inspectors.
While MSHA uses a standard formula to calculate penalties,
other entities involved in the appeals process use methods that
are more subjective. Thus, in some appealed cases we reviewed,
it was not always transparent as to how final penalty amounts
were derived by ALJs.
MSHA most recently restructured its penalty process in a
way that will most likely lead to higher penalties and,
ultimately, more appeals. Thus, going forward, it is important
that final penalty amount decisions are transparent and contain
all necessary information. If not, it will be difficult to
ensure that all entities are consistently applying relevant
factors and that the impact of penalties and ensuring miner
safety is not diminished.
Mr. Chairman, this concludes my statement. I am happy to
answer any questions that you or other members of the committee
may have. Thank you.
Chairman Miller. Thank you.
[The statement of Mr. Bertoni follows:]
______
Chairman Miller. Mr. Stickler?
STATEMENT OF RICHARD STICKLER, ASSISTANT SECRETARY OF MINE
SAFETY AND HEALTH, DEPARTMENT OF LABOR
Mr. Stickler. Chairman Miller, Ranking Member McKeon and
members of the committee, I am pleased to appear before you
today to discuss the important actions of the Mine Safety and
Health Administration in protecting the health and safety of
the Nation's miners.
I have been part of the mining community for more than 40
years. My experience includes working in underground coal mines
as well as working in and around the mining community every
day. I know firsthand that every fatality, serious injury is
devastating to miners, their families and the communities in
which they live. Let me be very clear that our number one
priority is to protect the health and safety of America's
miners.
MSHA began to implement new policies to protect miners even
before Congress passed the MINER Act. For example, in March of
2006, MSHA issued emergency temporary standards addressing many
of the safety provisions that were ultimately included in the
MINER Act. We were guided by three basics of mine safety:
strict enforcement of the law; effective safety training and
practices for miners, supervisors and managers; and the
implementation of new technologies that can help achieve a
safer workplace.
On enforcement, we would use all the tools available to us
to achieve our goals. We will be particularly aggressive with
those mine operators who habitually violate MSHA's standards
and who seem to view penalties as just another cost of doing
business. On March 29 of this year, MSHA issued a $1.5 million
penalty, the largest ever assessed to a coal operator in this
agency's history.
MSHA continues to move forward to both implement the MINER
Act and to enforce provisions of the Mine Act. Over the past 14
months, MSHA has issued an emergency temporary standard to
improve mine safety, an emergency mine evacuation rule, a
program information bulletin raising the required strength of
seals from 20 psi to 50 psi, a program information bulletin on
breathable air, a program information letter on flagrant
violations, a rule implementing increased part 100 civil
penalties; and we are working to finalize an ETS that will
strengthen seal requirements.
In addition, MSHA has trained 14 family liaisons and has
another major rule in the regulatory process concerning mine
rescue teams. This rule would improve the training,
certification and the viability of mine rescue teams.
While MSHA faces significant challenges to both replace
enforcement personnel who are retiring and expand their
enforcement ranks, I believe the agency will meet its goal of
hiring 170 new enforcement personnel by the end of this fiscal
year.
Today, MSHA remains focused on our core mission, to improve
mine health and safety of America's miners and work toward the
day when every miner goes home safe and healthy to family and
friends after every shift of every day. MSHA cannot do this
alone. The entire mining community must also do their part to
improve mine safety and health. Working together, we can
achieve this important goal.
I thank you for allowing me to testify today, and I look
forward to answering your questions.
Chairman Miller. Thank you.
[The statement of Mr. Stickler follows:]
Prepared Statement of Hon. Richard E. Stickler, Assistant Secretary of
Labor, Mine Safety and Health Administration
Chairman Miller, Ranking Member McKeon, and the Members of the
Committee, I am pleased to appear before you today to discuss the
actions the Mine Safety and Health Administration (MSHA) is taking to
protect the health and safety of our nation's miners. I would also like
to provide you a report on the significant progress MSHA is making in
implementing the Mine Improvement and New Emergency Response (MINER)
Act of 2006, signed by the President on June 15, 2006.
I have been involved in the coal mining industry for more than 40
years. My experience includes working shifts in underground coal mines
as well as working in and around the mine site and mining community
every day. I know firsthand that every fatality, injury, and illness is
devastating for miners, their families, and the communities they live
in.
Accident Investigations
In March and April, MSHA released the results of its investigations
of the Aracoma Alma No. 1 and Darby mining accidents of last year. MSHA
released the results of the Sago investigation last week. The internal
MSHA reports evaluating MSHA's activities surrounding the Aracoma,
Darby, and Sago disasters will be released over the next month. In
these reports, MSHA will review its policies and practices and develop
action plans to address identified shortcomings.
MSHA Actions to Improve Mine Safety
Following the tragedy at Sago Mine, MSHA has taken swift action to
provide new regulatory protections for miners at the same time that it
has increased its enforcement efforts. For example, MSHA issued an
emergency temporary standard on March 9, 2006, addressing many of the
safety provisions that were ultimately included in the MINER Act, such
as increasing the number of Self-Contained Self-Rescuers (SCSRs) in
underground coal mines, additional safety training for underground coal
miners, and immediate notification of mine accidents applicable to all
mines.
In 2006, MSHA also stepped up its enforcement actions in both coal
and metal and non-metal mines, issuing 77,129 citations and orders in
coal mines, up nearly 12 percent from 69,124 in 2005. MSHA also
increased the number of citations issued in metal and non-metal mines
to 62,937, up nearly 7 percent from 59,101 the year earlier. Proposed
assessments issued by MSHA in 2006 totaled $35 million, up 40 percent
from $25 million in 2005.
When the MINER Act became law, even before the publication of the
new civil penalty regulation, MSHA began enforcing new civil penalties
for flagrant violations, unwarrantable failures, and failure to
immediately notify MSHA of mine accidents. MSHA has already issued the
first ever citations for flagrant violations. Six of these, totaling
$874,500, were assessed against R&D Coal Company for the October 23,
2006 death of one of its employees. A flagrant violation is defined in
the MINER Act as ``a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory safety and health
standard that substantially and proximately caused, or reasonably could
have been expected to cause, death or serious bodily injury.'' MSHA
will continue to use this important enforcement tool to bring about
future compliance.
MSHA also initiates special emphasis inspection programs that focus
special enforcement activities on specific aspects of mining. For
example, this past February and March, MSHA initiated special emphasis
inspection programs in Coal Districts 4 in Southern West Virginia and
District 6 in Eastern Kentucky to examine roof controls plans and roof
support methods in mines that use retreat mining methods. In District
4, MSHA issued 234 citations and orders during a two-week period.
District 6 conducted a special initiative which targeted all mines
in the district that are conducting or will conduct retreat mining. The
purpose was to observe retreat mining practices and to ensure that
adequate safety precautions for retreat mining were included in each
mine's roof control plan. Between March 5 and 22, 2007, MSHA inspectors
inspected 33 mines and issued 8 citations related specifically to roof
control issues. Of the 33 mines involved in the initiative, 21 were
verified to have adequate safety precautions for retreat mining, and 12
were required to provide additional safety precautions.
In February, MSHA also conducted a nationwide targeted Special
Health Emphasis enforcement program to ensure operator compliance with
the applicable respirable dust standard at specific mines during normal
production cycles, and that ventilation and dust control parameters
were adequate and effective in protecting miners' health at all times.
Over 1,130 dust samples were collected from February 20th to March 3rd,
2007 at 61 selected underground coal mines in all eleven coal
districts. Thirty-two citations and one unwarrantable failure order for
ventilation plan violations were issued during the health inspections,
two citations were issued for excessive dust, and 44% of the
enforcement actions were designated as Significant & Substantial (S&S).
Further evaluation will be conducted to identify good and bad
ventilation plans and practices.
Implementing the MINER Act of 2006 and Initiating New Policies
Last year, Congress passed and the President signed the MINER Act--
the most significant mine safety legislation in nearly 30 years. The
provisions of the MINER Act that have been implemented by MSHA include:
The approval or partial approval of emergency response
plans for the 466 currently active underground coal mines;
Requiring more Self-Contained Self-Rescue (SCSR) devices
for each miner in every underground coal mine;
Requiring flame resistant life lines for evacuation in all
underground coal mines;
Mandating additional mine evacuation safety training and
training on the use of SCSRs;
Implementing a new maximum civil penalty of up to $220,000
for flagrant violations, and new minimum penalties for ``unwarrantable
failure'' and ``immediate notification'' violations.
Requiring all mine operators to notify MSHA immediately
after an accident;
Installing redundant underground-to-surface communications
systems;
Requiring a supply of breathable air to miners who are
trapped in underground coal mines;
Training 14 MSHA officials to be Family Liaisons;
Requiring post accident tracking of underground miners
and;
Requiring realistic ``expectations'' training for miners
who use SCSRs.
Keeping miners safe and healthy is MSHA's top priority.
Implementation of the MINER Act is critical to achieving this goal, and
I am proud of MSHA's work in this regard. I want to review with the
Committee in detail the objectives of the MINER Act that MSHA has
already met.
Emergency Mine Evacuation
On December 8, 2006, the Department of Labor published its final
rule on Emergency Mine Evacuation in the Federal Register. The final
rule helps ensure that miners, mine operators, and MSHA will be able to
respond quickly and effectively in the event of an emergency. The rule
includes requirements for mine operators to provide increased
capability for mine emergency response and evacuation; includes
additional requirements for SCSRs and their storage; improved training
and escape drills; lifelines, tethers, and multi-gas detectors; and
accident notification. This final rule includes many provisions that
MSHA initially included in the Emergency Temporary Standard issued
March 9, 2006, and were later incorporated in the MINER Act. The
provisions include:
Increased numbers and storage of SCSRs;
Improved mine emergency evacuation drills and training;
Installation and maintenance of directional lifelines in
underground coal mines, which must be fire resistant within three
years; and
Immediate accident notification for all mines.
Once again, MSHA went beyond the requirements of the MINER Act by
requiring mine operators to provide multi-gas detectors to miners
working alone and to each group of miners. While this provision was not
part of the MINER Act, MSHA believes it is important to highlight the
addition of this requirement in our final emergency mine evacuation
standard because, in the event of a mine emergency, it will enable
miners to know whether there are toxic gases in the mine atmosphere.
This rule was effective immediately on December 8, 2006, with the
exception of certain training and equipment provisions. All provisions
are now effective; SCSR training units for annual expectations training
have now been developed. On March, 30 MSHA published a notice in the
Federal Register notifying mine operators that the units were
available. Mine operators must have had a purchase order for these
training units by April 30 and must conduct training with them within
60 days of receipt of the units.
MSHA has also developed an SCSR database to enable the agency to
locate SCSRs affected by future recalls or other approval actions, and
to help our enforcement personnel inspect the SCSRs at the mines by
cross checking reported inventories with units in use. In addition,
NIOSH and MSHA will use this database to randomly select and collect
SCSRs deployed at mines for testing in the Long Term Field Evaluation
Program.
Emergency Response Plans
The MINER Act requires underground coal mine operators to develop
and adopt written Emergency Response Plans (ERPs) specific to the mines
they operate. In accordance with the MINER Act, MSHA required operators
to submit plans by August 14, 2006. MSHA provided operators with
guidance related to the requirements for breathable air on February 8,
2007. This meant that ERPs could only be partially approved. Revised
ERPs, indicating how breathable air will be provided, were required by
March 12, 2007. In addition to breathable air, the ERPs must address
post-accident communications and tracking, lifelines, training, and
local coordination.
We are ensuring that the plans are reviewed in a timely manner,
approved, and implemented for all underground coal mines as specified
in the Act. As of May 8, 2007, there were 466 active underground coal
mines. Of those, 261 have submitted ERPs that have been partially
approved, and another 205 have been fully approved. MSHA is reviewing
and discussing plan submissions with operators with the goal of
providing full approval of all submitted plans in the near future.
Post-Accident Breathable Air
With respect to post-accident breathable air, MSHA issued a Program
Information Bulletin (PIB) on February 8, 2007, to provide guidance to
mine operators concerning acceptable quantities and delivery methods in
underground coal mines. This PIB was placed on MSHA's Web site and was
distributed widely to the coal mining community.
The PIB provides the following options for meeting the breathable
air requirements of the MINER Act:
Establish boreholes within 2,000 feet of the working
section; or
Provide forty-eight hours of breathable air located within
2,000 feet of the working section of the mine, with contingency
arrangements to drill boreholes if miners are not rescued within 48
hours; or
Provide ninety-six hours of breathable air located within
2,000 feet of the working section; or
Provide other options that provide equivalent protection
based on unique conditions at a mine.
Methods of providing breathable air (in barricaded or other areas
that isolate miners from contaminated air) include:
Drilling boreholes;
Air line supplied by surface positive pressure blowers; or
Compressed air cylinders, oxygen cylinders, or chemical
oxygen generators; and
Other means that provide 96 hours of breathable air.
In addition to the PIB, we have also posted related materials on
MSHA's website, including a hazard awareness information sheet on use
of compressed air and compressed oxygen; information sheets on methods
of providing breathable air, including calculations; and questions and
answers addressing specific breathable air issues.
Post-Accident Communications and Post-Accident Tracking
Section 2 of the MINER Act requires that each mine evacuation plan
provide a redundant means of communications with the surface for
persons underground. It also requires that the plan provide a means of
tracking the pre-accident location of all underground miners. The MINER
Act requires that mine operators adopt wireless communications and
electronic tracking systems by June 2009.
To comply with the requirements of Section 2, as of May 2, 2007,
MSHA has met with representatives of 49 communication and tracking
system companies, and observed the testing or demonstration of 20 post-
accident communications and tracking systems at various mine sites
around the country. When these systems are presented to MSHA for
approval, we will expedite the approval process to ensure that safe,
durable and reliable systems get into the mines as quickly as possible.
To date, MSHA has approved 19 systems, including four new devices.
These new devices are:
The Kenwood portable hand held radio;
Marco RFID (radio frequency identification) Tracking Tag;
Matrix Design Group RFID Tracking Tag; and
NL Technologies Model Standalone WiFi Tracking Tag
In order to meet the long range communications and tracking
requirements of the MINER Act, MSHA is reviewing all the available
technology and working with the National Institute for Occupational
Safety and Health (NIOSH) and manufacturers to help in the development
of safe, reliable systems for underground coal mines. MSHA's
responsibilities are to ensure these devices do not present an
explosion or fire hazard in the mining environment, and also verify
that they will function underground , while NIOSH is responsible for
researching and developing these devices. MSHA has had contact with 137
parties about systems to track and/or communicate with miners while
they are underground. However, as of today, there is no truly wireless
tracking or communications system that meets the requirements of the
MINER Act.
Mine Rescue Teams
The MINER Act requires the Department of Labor to issue regulations
with regard to mine rescue teams by December 2007. These regulations
must address improved training, certification, availability, and
composition requirements for underground coal mine rescue teams. MSHA
is currently drafting a proposed rule to implement the MINER Act
provisions for mine rescue teams.
Civil Penalties
After passage of the MINER Act, MSHA promptly increased penalties
for immediate accident notification and unwarrantable failure
violations. On March 22, 2007, MSHA published a final rule to increase
civil penalty amounts for mine safety and health violations; the rule
became effective on April 23, 2007. Issuance of this rule fulfills
another requirement of the MINER Act and demonstrates the commitment of
MSHA to protect the safety and health of our nation's miners.
As prescribed by the Act, the final rule:
Establishes a maximum penalty of $220,000 for ``flagrant''
violations, as proposed in the President's previous budgets.
Sets minimum penalty amounts of $2,000 and $4,000 for
``unwarrantable failure citations and orders.''
Imposes a minimum penalty of $5,000 (up to a maximum of
$60,000) for failure to timely notify MSHA of a death or an injury or
entrapment with a reasonable potential to cause death.
Other major provisions of the final rule applicable to all mine
operators and contractors are:
Increases civil penalties overall--by an estimated 179
percent using 2005 violation data--targeting the most serious safety
and health violations with escalating penalties.
Adds a new provision to increase penalties--
notwithstanding the severity--for operators who repeatedly violate MSHA
standards.
Replaces the $60 single penalty with higher formula
assessments for non-significant and substantial (non-S&S) violations.
Family Liaison Program
The MSHA Family Liaison Policy has been put into place to provide
for an MSHA liaison to be with families at the site of a mine accident
where miners are unaccounted for or there are multiple fatalities. A
Program Policy Letter has been issued and 14 designated family liaison
personnel have completed their initial training sessions. The National
Transportation Safety Board and the American Red Cross have helped
train these individuals. Three MSHA family liaisons were present in
Barton, Maryland, to be with the families of the miners during the
recent accident at Tri-Star Mining Company.
Sealing of Abandoned Areas in Underground Coal Mines
The MINER Act requires MSHA to issue mandatory heath and safety
standards relating to the sealing of abandoned areas in underground
coal mines. The MINER Act requires the health and safety standards to
``provide for an increase in the 20 psi standard currently set forth in
section 75.335(a)(2) of title 30, Code of Federal Regulations.''
As an interim step, last year MSHA issued a temporary moratorium on
new construction of alternative seals and then raised the psi standard
for existing and new alternative seals by 150% from 20 to 50 psi. MSHA
also issued guidance on the design and evaluation of new seals and the
inspection of existing seals.
MSHA is currently drafting an emergency temporary standard which
addresses improved seal strength, design, construction, repair and
sampling of the atmosphere behind seals.
Technical Study Panel on Belt Air
Section 11 of the MINER Act required MSHA to establish a Technical
Study Panel on Belt Air. The purpose of this Panel is to ``provide
independent scientific and engineering review and recommendations with
respect to the utilization of belt air and the composition and fire
retardant properties of belt materials in underground coal mining.''
Congress provided the Panel one year from the Panel's appointment to
issue its report, and the Secretary of Labor is given an additional 180
days to respond to the Panel's report.
The charter governing the Panel was published in the Federal
Register on December 22, 2006. The first two meetings of the Technical
Study Panel have already taken place--the first on January 9-10, 2007
and the other on March 28-30 in Pittsburgh, Pennsylvania. The third
meeting is being held now in Salt Lake City, Utah, and a fourth is
scheduled for June 20-22 in Birmingham, Alabama. Members of the Panel
are prominent and experienced mine safety and health professionals. As
mandated in the MINER Act, two of the Panel members were appointed by
the Department of Health and Human Services, two by the Department of
Labor, and two members were appointed by Congress.
Refuge Alternatives
NIOSH is conducting research and field tests on refuge
alternatives. By the end of this year, NIOSH is scheduled to report the
results of the research to the Department of Labor. By mid-2008, in
accordance with the MINER Act, the Department of Labor will report to
Congress on the actions MSHA will take in response to the NIOSH report.
MSHA is aware of requirements by some states for refuge chambers, and
MSHA is accepting state approved refuge chambers as a means of
providing breathable air.
Recruitment
The Emergency Supplemental Appropriations Act of 2006 (P.L.109-234)
provided an additional $25.6 million for MSHA for coal enforcement,
including the hiring of coal mine inspectors and other enforcement
personnel. MSHA is pressing ahead with recruitment, training and
deployment of the additional 170 coal mine enforcement personnel funded
by the emergency supplemental appropriation. Through the first three
quarters of MSHA's hiring plan, 126 new enforcement personnel staff has
been hired. While MSHA faces significant challenges to both replace the
enforcement personnel who will likely retire this year and expand our
enforcement ranks, I am confident that the agency will meet its goal of
hiring 170 net new personnel. The President's FY 2008 budget request
includes $16.6 million to maintain these enforcement staff.
MSHA continues to conduct recruitment drives in local communities
around the country, and we have hired additional staff at our Mine
Health and Safety Academy to ensure that we can properly and
expeditiously train our new inspectors and get them out to the job
sites where they will make a difference. I believe this training is the
best, most effective program MSHA has ever had and will enable these
new inspectors to meet today's challenges. In the end, I strongly
believe the increased presence of MSHA enforcement staff at the job
sites will have a positive impact on mine safety and health.
Current Enforcement Activities
MSHA will use all of the tools available to achieve our goal of
safer and healthier mines, including tough enforcement, education and
training, and technology. MSHA will be particularly aggressive with
those mine operators who habitually violate MSHA standards and seem to
view penalties as just another cost of doing business. In order to
better identify these persistent repeat violators, MSHA is developing a
database to provide for a more objective analysis of accident trends
and enforcement results. MSHA will use the data developed from this
database to target those operators who refuse to follow the laws and
regulations governing mine safety and health.
One particular tool--pattern of violations--has been in MSHA's
arsenal for over 30 years but the agency has never used it. The Mine
Act authorizes MSHA to issue a withdrawal order under certain
conditions disclosed by an inspection conducted within 90 days after a
notice that the mine operator has a pattern of violations of mandatory
standards that could have significantly and substantially contributed
to mine hazards. MSHA has a regulation that provides for a letter
warning mine operators that they have a potential pattern of violations
before the statutory notice is issued. While MSHA has issued such
letters, it has never proceeded to issue the statutory notice. MSHA has
recently initiated the development of objective criteria to identify
mines that may have a pattern of violations. Once this new criteria is
in place, MSHA will issue pattern of violations notices and orders
where warranted. This measure is tough, but I believe it is also
necessary in instances where the safety of miners is routinely
jeopardized.
MSHA will also continue to conduct focused inspections on known
hazards, such as the program we recently completed on retreat mining.
In addition to implementing the MINER Act, MSHA will continue to
inspect each underground mine four times annually, and each surface
mine twice a year, as required by statute.
Conclusion
MSHA continues to move forward to both implement the MINER Act and
to enforce the provisions of the Mine Act. Over the past 14 months,
MSHA has issued--
An Emergency Temporary Standard to improve mine safety;
Two major regulations to implement the MINER Act;
A Program Information Bulletin on breathable air;
A Program Information Letter on flagrant violations; and
Another Program Information Bulletin on seals.
These actions have been taken to implement provisions of the MINER
Act. In addition, two major rules to implement the MINER Act are in
various stages of the regulatory process and should be in final form by
the end of 2007 as mandated by Congress.
Today, every single person at MSHA remains focused on our core
mission: to improve the safety and health of America's miners and to
work toward the day when every miner goes home safe and healthy to
family and friends, after every shift of every day. MSHA cannot do this
alone. The entire mining community--mine operators and miners
included--must also do their part to improve mine health and safety.
Together MSHA, mine operators and miners can achieve this important
goal.
Thank you for allowing me to testify today. I look forward to
answering your questions and to working with this committee to continue
to improve mine safety.
______
Chairman Miller. Mr. Snare?
STATEMENT OF JONATHAN SNARE, ACTING SOLICITOR OF LABOR,
DEPARTMENT OF LABOR
Mr. Snare. Chairman Miller, Ranking Member McKeon and
members of the committee, I am pleased to appear before you
today to discuss how the Office of the Solicitor supports and
assists MSHA in its efforts to protect the health and safety of
our Nation's miners.
The Office of the Solicitor, or SOL as we are known around
the Department of Labor, has a long and distinguished record of
providing high-quality legal services to the Department and its
client agencies. SOL is relatively unique among legal offices
in Federal agencies because it has independent litigating
authority under a number of Federal statutes, including the
Mine Act.
Enforcement is our first priority and accounts for the
majority of SOL efforts in support of MSHA. Attorneys in our
national and regional offices prosecute and defend MSHA
enforcement actions and whistleblower protection cases before
the independent Federal Mine Safety and Health Review
Commission. We secure access to mines through injunctions when
mine operators deny entry to MSHA inspectors, and we jointly
refer criminal cases to the Department of Justice for
investigation and criminal prosecution.
In recent years, mine operators have contested an average
of 6 percent of the total number of violations issued. We
expect that the contest rate on MSHA citations will increase
because of the higher civil penalties now being assessed and as
MSHA uses all of its enforcement tools as directed by Assistant
Secretary Stickler, including the new tools authorized by the
MINER Act.
Whistleblower cases under the Mine Act are also a high
priority for SOL and MSHA. To ensure that whistleblower cases
get the immediate attention they deserve, SOL and MSHA have
established internal procedures that require a decision to file
within 90 days of the complaint being filed with MSHA.
Discharge cases are handled even faster. In appropriate cases,
MSHA and SOL work together to take the action necessary to seek
temporary reinstatement of a miner allegedly discharged for
engaging in protected safety activity within a month from the
date the miner files a complaint.
SOL also gives high priority to any case involving
withdrawal orders issued by MSHA inspectors when they find that
an imminent danger exists at a mine.
In addition to our priority enforcement cases, SOL is going
after mine operators who refuse to pay their civil penalties.
SOL is working closely with MSHA to consider how best to
employ the new enforcement tools to protect the safety of
American miners, such as the MINER Act's authority to issue
citations for flagrant violations of mandatory safety and
health standards.
SOL works closely with MSHA when an inspector identifies a
violation appropriate for a flagrant designation to make sure
all of the legal elements are satisfied.
SOL is also supporting Assistant Secretary Stickler's
decision to utilize the pattern of violations provision in the
Mine Act to ensure that this policy will meet any potential
legal challenges. Under this provision, MSHA can issue a
withdrawal order requiring miners to exit the mine. Even though
this provision has been in MSHA's arsenal for over 30 years, it
has never been used.
SOL attorneys also provide legal support for mine accident
investigations. In major accidents SOL will assign multiple
attorneys to the investigation to ensure that the accident team
has our full support and that eventual enforcement actions are
backed up by solid evidence. For example, during the Sago
investigation, the operator refused to allow the United Mine
Workers of America representatives to participate in the
underground accident investigation. SOL acted quickly on behalf
of the UMWA to ensure that they can serve as a representative
of the miners at Sago.
SOL also provided support for MSHA in their investigation
of the Aracoma accident, which resulted in a criminal referral
to the Department of Justice and the imposition of the highest
civil penalty against a coal mine operator in history.
SOL attorneys also provide legal support to MSHA's
rulemaking efforts. SOL works closely with MSHA to develop the
emergency temporary standard and the subsequent final rule on
emergency mine evacuations.
In addition to the rulemakings updating the civil penalty
regulations and the rules on seals and mine rescue mandated by
the MINER Act, SOL has supported MSHA providing legal guidance
and advice on the review and approval of emergency response
plans, developing policy on implementing the Family Liaison
Program and chartering and providing legal support on the belt
air technical study panel.
In assisting MSHA to achieve its regulatory objectives, SOL
is keenly focused on making sure that these requirements
withstand legal challenges. These efforts are particularly
important because of the likelihood that these rules will be
challenged in Federal court.
SOL continues to fully support MSHA and Assistant Secretary
Stickler's clear message of strong enforcement. The Office of
the Solicitor is also working with MSHA to ensure timely
completion of the congressional mandates in the MINER Act. The
attorneys in our office take their responsibility seriously and
are proud to do their part in protecting America's miners.
I want to thank you again, Mr. Chairman and members of the
committee, for the opportunity to testify; and I look forward
to answering your questions.
Chairman Miller. Thank you.
[The statement of Mr. Snare follows:]
Prepared Statement of Jonathan L. Snare, Acting Solicitor, U.S.
Department of Labor
Chairman Miller, Ranking Member McKeon, and Members of the
Committee, I am pleased to appear before you today to affirm the
commitment of the Office of the Solicitor to support and assist the
Mine Safety and Health Administration (MSHA) in its efforts to improve
and protect the health and safety of our nation's miners. We believe
that MSHA and the attorneys in the Solicitor's Office must work hand-
in-hand to carry out MSHA's enforcement and regulatory
responsibilities.
Role of the Office of the Solicitor
The Office of the Solicitor, or ``SOL'' as we are known in the
Department, has a long and distinguished record of providing high
quality legal services to the Department of Labor and its client
agencies. SOL is relatively unique among legal offices in federal
agencies other than the Department of Justice (DOJ) because it has
independent litigating authority under a number of federal statutes,
including the Mine Act of 1977. Attorneys in our headquarters division
and regional offices handle MSHA's enforcement litigation before the
independent Federal Mine Safety and Health Review Commission
(Commission) Administrative Law Judges (ALJs).
Enforcement is our first priority and accounts for the majority of
our efforts in support of the MSHA program. We prosecute and defend
MSHA enforcement actions and whistleblower protection cases before the
Commission, secure access to mines through injunctions when mine
operators deny entry to MSHA's inspectors, and jointly refer criminal
matters like the referral of the Aracoma violations to DOJ for
investigation and possible criminal prosecution. SOL attorneys also
assist MSHA by providing a broad range of legal guidance and advice on
all aspects of our client's activities.
Regular Enforcement Responsibilities
Following the mining accidents last year and enactment of the MINER
Act, SOL mobilized legal resources to assist MSHA in implementing the
new legislation, while continuing to carry out regular enforcement
responsibilities.
Litigating contested violations. In recent years, mine operators
have contested an average of six percent of the total number of
violations issued, which have ranged up to 135,000. All contested
violations are handled by SOL attorneys or trained MSHA specialists. We
expect that the historic contest rate of six percent will increase as a
reaction to the increased civil penalties now being assessed and the
full use of MSHA's enforcement tools as directed by Assistant Secretary
Stickler.
Litigating whistleblower complaints. SOL and MSHA have continued to
promptly address whistleblower cases--a high priority issue for DOL and
MSHA. During Fiscal Year 2006, MSHA received 106 complaints. As of
early May this year, MSHA has received 59 complaints. To ensure that
whistleblower cases get the immediate attention they deserve, SOL and
MSHA have established internal procedures that require a decision on
whether or not to file the case with the Commission within 90 days of
the complaint being filed with MSHA. Discharge cases are handled even
faster. In appropriate cases, MSHA and SOL will work together to take
the action necessary to seek temporary reinstatement of a miner
allegedly discharged for engaging in protected safety activity within a
month from the date the miner files a complaint.
Seeking injunctions to enforce withdrawal orders. We also give high
priority to any case involving withdrawal orders issued by MSHA
inspectors because they have found an imminent danger exists at the
mine. While such cases are relatively rare, they can be complex (for
example, cases involving expert testimony about mine ventilation
plans). Although under the Mine Act, violations are corrected first
before they are litigated, any enforcement action that stops production
is vigorously contested before the judge. For the same reason, any case
involving a failure to abate a violation, and thus issuance of a
withdrawal order, also gets high priority and can result in an
injunction action in District Court.
Going after delinquent mine operators. In addition to our priority
enforcement cases, we are using innovative methods to go beyond the
standard debt collection procedures in the Debt Collection Act to
ensure that delinquent mine operators pay their civil penalties,
including actions to enjoin operators from failing to pay civil
penalties. Once the court issues an order, a recalcitrant operator can
be held in contempt if he does not pay.
Support for Accident Investigations and Criminal Referrals
When fatal accidents occur, SOL attorneys are immediately notified
and are prepared to give on-the-scene legal support to MSHA
investigators. In major accidents like Sago, Aracoma, and Darby, we
assign multiple attorneys to the investigation to ensure that the
accident team has our full support and that eventual enforcement
actions are backed up by solid evidence.
For example, during the Sago investigation, after two anonymous
miners designated the United Mine Workers of America (UMWA) as a
representative of miners at Sago, the operator refused to allow the
UMWA representatives to participate in the underground accident
investigation. SOL took immediate action to obtain an injunction in
District Court and successfully defended the injunction in the Court of
Appeals. SOL's injunction case was filed on the same day the operator
denied the UMWA their participation rights and the Sago investigation
proceeded without interruption with participation by the UMWA.
The Aracoma investigation is an example of a complex investigation
involving both a criminal referral and the highest civil penalty
against a coal mine operator in history.
SOL also plays a critical role in assisting MSHA to refer potential
criminal violations of the Mine Act to DOJ whenever they are found.
Referrals to DOJ are done by a letter signed jointly by career MSHA and
SOL officials.
New Enforcement Developments
SOL works closely with MSHA to consider how best to employ new
enforcement tools to protect the safety of American miners, such as the
MINER Act's authority to issue citations for flagrant violations of
mandatory safety and health standards.
SOL advised and assisted MSHA in the development of guidelines for
determining when a violation should be designated as ``flagrant'' and
assessed an appropriately high penalty. Citations for flagrant
violations are particularly useful in instances where the mine operator
has acted recklessly or habitually violated MSHA's mandatory standards
and view penalties as the cost of doing business. SOL works closely
with MSHA when an inspector identifies a violation appropriate for a
flagrant designation to make sure that all the elements are satisfied.
Flagrant violations can result in a penalty up to $220, 000. We fully
expect these cases to be litigated and we will defend them at the
Commission and on appeal where necessary.
Under the MINER Act, new minimum penalties have been implemented by
MSHA regarding accident notification and unwarrantable failures. We
believe that mine operators will begin to contest citations as a
reaction to these new minimum penalties.
Assistant Secretary Stickler's decision to utilize the pattern of
violations provision in the Mine Act will also require careful planning
and preparation to ensure that we can meet any legal challenge. Under
this provision, MSHA can issue a withdrawal order requiring miners to
exit the mine. Even though this provision has been in MSHA's arsenal
for over 30 years, it has never been used. As Assistant Secretary
Stickler notes in his testimony, he intends to systematically review
the enforcement and safety records at all mines and take appropriate
action where a pattern of violations is established. Once the power of
this tool has been exercised, we expect that mine operators will
vigorously contest more citations to avoid the potential of withdrawal
orders based upon a notice of a pattern of violations.
Development and Defense of New Rules
SOL attorneys at headquarters provide legal support to MSHA's
rulemaking efforts. The tragic events in early 2006, particularly the
accidents at the Sago and Aracoma mines, led MSHA to conclude that a
more integrated approach to mine emergency response and evacuation was
necessary. This conclusion prompted the issuance of an Emergency
Temporary Standard (ETS) to protect miners from the grave danger
associated with mine emergencies and evacuations. In accordance with
the Mine Act, the ETS was effective immediately upon publication in the
Federal Register on March 9, 2006, and served as the proposed rule.
This was the second ETS issued by this Administration out of only three
in MSHA's nearly 30-year history. SOL worked closely with MSHA to
develop the ETS and the subsequent final rule on Emergency Mine
Evacuation. Our attorneys provided legal advice and counseling on all
aspects of the rulemaking, including the ``grave danger'' finding, the
regulatory text, and the preamble justification for the rule.
In addition to the larger, more intensive rulemakings including the
update of the civil penalty regulations and the rules on seals and mine
rescue mandated by the MINER Act, SOL has supported MSHA by providing
legal guidance and advice on the review and approval of Emergency
Response Plans, developing policy on implementing the Family Liaison
Program, and chartering and providing legal support to the technical
study panel that is reviewing the use of belt air and the composition
and fire retardant properties of belt materials.
In assisting MSHA in achieving its objectives through the
development and implementation of new rules, SOL is keenly focused on
making sure that the requirements withstand legal challenges. The
efforts are particularly important because of the likelihood that these
rules will be challenged, as were two of MSHA's recent initiatives.
The first challenge was filed by the National Mining Association
(NMA) to MSHA's final rule on emergency mine evacuations.
The second challenge was filed also by the NMA to MSHA's February
2007 Program Information Bulletin (PIB). This PIB stems from the MINER
Act's requirement that underground coal mine operators adopt emergency
response plans providing for sufficient supplies of post-accident
breathable air. On May 7, 2007, we filed a motion to dismiss this
challenge.
Both challenges were filed in the D.C. Circuit Court of Appeals and
SOL will work tirelessly to defend MSHA's action in both cases. We are
also proud of our successful defense earlier this year of MSHA's
rulemaking that established new standards for diesel particulate matter
(DPM) exposure in underground metal and non-metal mines. The DPM legal
victory resolved many questions raised by the industry regarding the
validity of MSHA's risk assessment and the appropriate surrogate for
measuring DPM. SOL continues to assist MSHA with legal advice
concerning implementation of the final DPM rule and is consulted, as
necessary, on enforcement issues.
Conclusion
SOL continues to fully support MSHA and Assistant Secretary
Stickler's clear message of strong enforcement. The Office of the
Solicitor is also working with MSHA to ensure timely completion of the
Congressional mandates in the MINER Act. The attorneys in our office
take their responsibilities seriously and are proud to do their part in
protecting America's workers.
______
Chairman Miller. Mr. Grayson--Dr. Grayson.
STATEMENT OF LARRY GRAYSON, CHAIRMAN, DEPARTMENT OF MINING AND
NUCLEAR ENGINEERING, UNIVERSITY OF MISSOURI-ROLLA
Mr. Grayson. Good morning, Mr. Chairman and distinguished
members of the committee. My name is Larry Grayson. I am a
Professor of Mining and Engineering at the University of
Missouri-Rolla and also Director of the Mine Safety Center. I
thank you for the opportunity to address the committee today
concerning mine safety and the effectiveness of MSHA's mine
safety programs.
My insights on these topics----
Chairman Miller. Dr. Grayson, is your microphone on?
Thank you.
Mr. Grayson. My insights on these topics have been
sharpened by last year's coal mine tragedies and through
interaction with mine safety experts who served on the
Independent Mine Safety Technology and Training Commission. The
Commission report made recommendations on various technologies,
strategies, procedures and training and recommended that risk-
based design and management of major hazards should be done by
every underground coal mine in the U.S. to prevent emergencies.
We also noted that all mine personnel must be involved in
establishing a culture of prevention.
MSHA has had a major role in improving miner safety. MSHA
inspectors provide extra sets of eyes to spot problems, and
well-trained inspectors are adept at finding more insidious-
type problems. We have owe a great debt of gratitude to our
mine inspectors, and our day-in-and-day-out efforts are
critical.
MSHA's internal policies and practices change as key
personnel change. Consistency of enforcement is sometimes
problematic among districts, mines and even inspectors. The
current attrition of experienced inspectors will only
exacerbate the situation unless close attention is paid and
proactive action is taken to minimize the effects.
A lack of attention to details by MSHA is highlighted by
the Jim Walters Resources No. 5 Mine disaster in 2001 when 13
miners died. The mine received 41 percent of all citations from
January, 1999, until the explosions occurred on September 23;
and they were on ventilation, accumulation of combustible
materials and rock dusting and, finally, roof control. A
significant percentage of them were S&S. Five withdrawal orders
were issued on ventilation and eight on combustible materials
and rock dusting. Three ignitions occurred between August 30
and September 19, while only one occurred in 2000. Each of
these critical areas was related to the explosions, and there
was significant evidence the greater MSHA scrutiny was
justified.
This case study emphasizes the value of risk analysis and
implementation of actions to mitigate or eliminate a sequence
of events from causing a disaster. No coal mine fire and
explosions fatalities occurred from 1993 through 1999. However,
seven explosions occurred in sealed areas during that time. The
causes were deciphered but next steps were not taken to deal
with the conditions under which seals were compromised and to
examine how to prevent damage from such explosions.
We paid the price for the lack of scrutiny in 2006. Sound
risk analyses of these situations would have detected and
addressed the vulnerabilities, and a plan aimed at prevention
could have been started in 1996 following three or four of
these events. It is MSHA's responsibility to initiate such
scrutiny and any follow-up action.
Many mines do not perform at an acceptable level of safety.
It is appropriate to target high-risk mines deserving
heightened scrutiny and concomitant enforcement without
sacrificing adequate inspections of all mines. However, such
targeting must be objective, risk-analysis based and designed
to address major hazards in high-risk mines quickly.
Investigations of incidents with four or more fatalities
should not be managed by MSHA. An independent investigative
board should conduct those investigations.
MSHA should accelerate the acceptance of technology and
equipment approved according to high international standards
for permissibility and intrinsic safety. The liability issues
should be removed quickly to facilitate this.
Moving new technology into mines is not generally an easy
task. We must ensure that the technology will work and not fail
in times of critical need. Miners must be assured that they
will be protected as advertised and will never again be in
situations that expose false expectations about technology. The
key is to identify needs early and pursue new technology
proactively.
In my written comments I have shared details on a research
project that illustrates the problem of moving too quickly to
demonstrate a new technology for monitoring coal mine dust
exposures. It has taken over 6 years since I left NIOSH to
reach success for the technology, but soon we will be able to
rely on the accuracy, the robustness and utility of the
personal dust monitor to protect miners from dust diseases.
I admire our coal miners deeply, and I affirm that we must
provide them a workplace that will protect their lives and
livelihoods. Our Nation needs courageous men and women willing
to meet the challenges of coal mining. Let us remove the life-
threatening vulnerabilities that have been identified, look
proactively for those yet unidentified and build a risk-
analysis-based culture of prevention that will address the
major threats.
I will try to answer any questions you may have.
Chairman Miller. Thank you.
[The statement of Larry Grayson follows:]
Prepared Statement of R. Larry Grayson, Union Pacific/Rocky Mountain
Energy Professor of Mining and Director, Western U.S. Mining Safety &
Health Training and Translation Center
Good morning Mr. Chairman and other distinguished members of the
Committee. My name is Larry Grayson. I am the Union Pacific/Rocky
Mountain Energy Professor of Mining at the University or Missouri-Rolla
and Director of the Western U.S. Mining Safety & Health Training and
Translation Center. Having been a coal miner myself for nine years, I
very much appreciate the opportunity to address the Committee today
concerning mine health and safety issues and the effectiveness of
MSHA's mine safety and health programs.
Based on my experience in underground coal mining, as a professor
who focuses on mine health and safety issues, and as a former Associate
Director of mine health and safety research in NIOSH, I am here
hopefully to help you evaluate the effectiveness of MSHA's mine safety
and health programs. My insights on this topic have been sharpened
dramatically in the last year since the mine tragedies at the Sago,
Aracoma/Alma, and Darby mines compromised a dramatic legacy of
improvements in mine safety. These insights were particularly honed
through my interaction with mine safety and emergency response experts
who served on the independent Mine Safety Technology & Training
Commission (hereafter referred to as the Commission), which was boldly
established by the National Mining Association.
During the course of the study, it became clear to the Commission
that the mine safety record regarding underground coal mine fatalities
resulting from fires and explosions dramatically changed from the
period 1993-1999, when no such fatalities occurred, to the period 2000-
2006, when the awful toll increased to 37. This latter number comprises
40% of such fatalities over the past 23 years, and returned the
incident rate to over 6 per year, nearly the same rate during the
period 1984-1992. No single factor can account for the dramatic rise,
but rather myriad parameters led to it.
The Commission's initial focus was on making recommendations to
increase the chances of miners to survive mine emergencies.
Accordingly, in the report \1\ recommendations were made relative to
communications technology, emergency response and mine rescue
procedures, training for preparedness, and escape and protection
strategies; however, the Commission noted the need for a fundamental
change in the way mines address their major hazards. In this respect
the Commission recommended that risk-based design and management of
major hazards are necessary processes for underground coal mines to
effectively prevent mine emergency situations. History and experience
clearly indicate, in numerous situations and conditions encountered,
that often minimum compliance with regulations is not sufficient to
deal with major hazards such as fires and explosions. The Commission
noted further that the level of risk from such hazards is mine
specific, and interventions to effectively mitigate or eliminate the
threats of such major hazards must be determined by a thorough risk
analysis leading to a management plan implementing the interventions.
This process should be done by every underground coal mine in the U.S.,
because of the significant threats, and management must involve all
workers in preventing accidents and injuries. Establishing a culture of
prevention is necessary for us to achieve the goal of zero fatalities.
---------------------------------------------------------------------------
\1\ The Commission report can be found at: http://
www.coalminingsafety.org
---------------------------------------------------------------------------
I will now focus on MSHA and give my assessment of the agency's
effectiveness in improving mine safety and health in the U.S. First
without doubt the agency has played a major role over the past 37 years
in improving the safety of miners. Statistics bear this out. MSHA
inspectors provide 'extra sets of eyes' to help spot problems in a
mine, and I have personally regarded their efforts as very helpful.
Some underground coal mines can be very expansive spatially, comprised
of extensive infrastructure spread throughout miles and miles of
tunnels, both of which can deteriorate over time. Good examinations by
mine examiners can help spot developing problems, especially the more
visible ones, but many other problems develop much more insidiously,
and well trained inspectors are adept at finding such insidious
problems earlier. We owe a great debt of gratitude to our mine
inspectorate, and their day-in and day-out efforts are critical.
The focus of MSHA's internal policies and practices does change
over time, particularly as key personnel change. Consistency of
enforcement, including the assignment of the S&S designation, is
sometimes problematic among districts, mines, and inspectors. The
current attrition and loss of experienced inspectors will only
exacerbate this situation, unless close attention is given and
proactive action is taken to minimize the effects. The scrutiny of mine
inspectors is critical to ensure the overall safety of mine operations,
just as is the scrutiny of mine examiners at their mines. Lack of
attention to details can spell disaster, as we have seen from last
year's tragedies.
An example of this lack of attention to detail by mine managers is
manifested by the situation that developed at Jim Walter Resources Mine
No. 5 in 2001, when 13 miners died. An analysis of violations and
reportable accidents for that mine shows that a number of leading
indicators of potential disaster did exist. Specifically, the mine had
only one reportable ignition in 2000. The first ignition at the mine in
2001 occurred on May 17th, and then a second occurred on August 30.
This was not particularly noteworthy in an experienced miners' mind.
However, two additional ignitions occurred in September, just prior to
the explosions on September 23rd. The latter two ignitions in quick
succession following the one on August 30th should have rung a clarion
call for immediate scrutiny of potential for danger.
To carry the example farther regarding lack of appropriate
attention to details by MSHA, the Jim Walter Resources No. 5 Mine
received 1,489 citations from January 1999 until the explosions
occurred in 2001. Of these, citations for ventilation (329),
accumulation of combustible materials and rock dusting (288), and roof
control (112) accounted for 49% of the total. The percent of them that
were designated as S&S were 14.6%, 19.8%, and 64.3%, respectively. Over
the same period, five withdrawal orders were issued concerning
ventilation, eight relative to combustible materials and rock dusting,
and one regarding roof control. Importantly, each of these critical
areas was related to the explosions that occurred on September 23rd and
the spatial extent of destruction.
There was significant evidence, in my opinion, that greater
scrutiny of the safety performance at the Jim Walter Resources No. 5
Mine was justified. The sequence of events involving unsafe conditions
and unsafe acts could have been interrupted, thereby preventing the
fatalities. Unsafe conditions included the bad roof area, the occluded
methane, the local explosion, disrupted ventilation, and accumulation
of methane from the face areas toward the mouth of the section. Unsafe
acts included leaving the charger near the bad-roof area, allowing the
miners to stay in the mine after the first explosion, not removing the
power from the haulage block system, and allowing the miners to return
to the area of the first explosion. A simple action to move the charger
away from a high-risk, bad-roof area could have interrupted the
sequence of events and prevented the explosions. This case study shows
the distinct value of analyzing high-risk situations and then taking
action to mitigate or eliminate a potential sequence of activities from
reaching fruition.
I also believe that there were many warnings of potential disaster
involving sealed, abandoned areas of mines. As I noted earlier, there
were no fatalities because of fires and explosions from 1993 through
1999, and we all thought that the trend would continue. However, during
this period there were seven incidents of explosions in sealed,
abandoned areas in mines. We were fortunate that the incidents did not
result in fatalities, but simply ignoring what was happening was, in
retrospect, not wise. I know work was done to decipher the causes of
these explosions, and we understood the reasons, but we didn't go the
next step to deal with the conditions under which seals were
compromised and to prevent damage from such explosions. Very
tragically, we paid the price for the lack of scrutiny in 2006. I am
convinced that a systematic approach to risk analysis of these
situations would have detected the vulnerabilities, and a game plan
toward prevention could have been started in 1996 after three or four
of these events occurred. In my opinion, it is the responsibility of
MSHA to initiate such scrutiny and follow-up action.
Many mines do not perform at an acceptable level of safety. It is
appropriate, in my thinking, to target high-risk mines deserving
heightened scrutiny and concomitant enforcement without sacrificing
adequate inspection of all mines. However, such targeting must be
objective and based on a sound risk-analysis process, fair to all types
of operations, and designed to address major hazards quickly. I believe
MSHA is headed in this direction, and I urge the agency to do it
soundly and fairly. The U.S. mining industry should be the global
leader in mine safety and health.
As we have become painfully aware from the tragedies in 2006, it is
critical that a technology scan be done periodically to continuous seek
improvement of the level of protection of miners to a higher level,
thereby increasing their odds of survival dramatically in an emergency.
It is imperative that this be done proactively, and it is recommended
that an independent group of safety experts, including some from non-
mining disciplines, should comprise a technology committee charged to
do this. The agency to which the committee reports does not matter, as
long as the committee functions independently.
Investigations of incidents with four or more fatalities should not
be managed by MSHA, in my opinion. There will be an innate conflict of
interest in some cases, and in other cases MSHA needs the separation
from unpopular conclusions in order to preserve the perception of
objectivity. It is in the agency's best interest to have an
investigative board established, so that investigation can be done
independent of the agency's influence.
The time has arrived for MSHA to accelerate the approval and
certification of technology and equipment approved according to high
international standards for permissibility and intrinsic safety. The
agency knows which standards meet or exceed their own standards, and
liability issues should be removed quickly to facilitate this.
As this point I am obligated to note that moving identified
technology toward implementation in mines is not generally an easy
task. We cannot allow the adoption of new technology without ensuring
that it will work in the underground coal mine environment and not fail
in times of critical need. Miners must be assured that they will be
protected 'as advertised' and will never again be in situations that
reveal false expectations about technology. The key is to identify
needs early and pursue new technology proactively. From my own
experience, I can share a technology research project that will
illustrate the problem of trying to move too quickly to implement a new
technology.
When I first joined NIOSH in 1997, an ongoing multi-year project
was the development of a machine-mounted, continuous, respirable dust
monitor (MMCRDM). The targeted technology for eventual implementation
was the tapered-element oscillating microbalance (TEOM). The technology
was used in other industries to monitor dust or particulate matter
accurately, and it was selected as the best technology for innovative
application in measuring respirable coal mine dust levels continuously.
After about 5 years of research, the developer of the MMCRDM was able
to demonstrate its accuracy in a housing that was appropriate for
application in an underground coal mine. The next step was to test the
new technology for accuracy against the dust sampling device commonly
used for compliance purposes by MSHA and mine operators. Eventually and
reasonably quickly, the accuracy was confirmed. The next step was to
test the ability of the new technology to withstand the rigors of the
underground mining environment. Lab testing was the first step in doing
this, according to a partnership-based research protocol, where the
machine would be subjected to vibration and water droplet levels
expected in coal mines. In this stage, any problems detected would
result in modification of the machine to improve its robustness.
Following success in this stage, in-mine testing of a prototype or a
few prototypes would be done next, to validate the robustness in the
mine environment. Unfortunately the machine was moved too quickly to
the in-mine testing stage, bypassing the planned lab testing and early
field testing, and multiple units failed miserably upon implementation
for demonstration purposes. The technology now forms the basis for the
personal dust monitor (PDM), which is near final approval following
successful field research. It has taken over six years to reach this
stage after I left NIOSH, but we will be able to rely on the accuracy,
robustness, and utility of the PDM to protect miners from dust diseases
of the lungs.
I would be remiss if I did not speak on MSHA's behalf concerning
the impediments the agency faces in moving technology, procedures,
policies, and rulemaking along more quickly. The U.S. government was
established originally with an intricate system of checks and balances
placed on its activities, involving each branch of government. In
rulemaking, the process requires input from stakeholders. The
stakeholders also have access to legal challenges when strong
disagreements on direction occur. This intricate, balanced system
ensures that prudent laws, regulations, and decisions are achieved in
the end, while involving those most impacted by the proposed measures.
Implementation of many provisions of the MINER Act must also undergo
this process of public input and interaction with MSHA to move the laws
into rules. Although it is very frustrating that the desired
protections are not yet in place, and danger from fires and explosions
still exist for underground coal miners, MSHA has been following the
required process for most provisions. Why certain provisions of the
MINER Act were not pursued in the past or not done more quickly is
problematic, for example, concerning development of seal construction
criteria in light of past explosions in abandoned areas and evaluation
of the protections afforded by rescue chambers.
Finally, I admire our coal miners more than I can say, and I affirm
that we must provide them a workplace, in often threatening conditions,
that will protect their lives and livelihoods while also assuring a
retirement free from disability. Our nation has a growing dependence on
a tremendous natural resource, which will provide stability in our
continued economic development, and we need courageous young men and
women to step up to meet the challenges of coal mining. Let us remove
the life-threatening vulnerabilities that have been identified in 2006,
look proactively for those yet unidentified, and build a risk analysis-
based culture of prevention that will not leave any stone unturned to
address the major threats.
I appreciate the opportunity to address you, and I will try to
answer any questions you may have.
______
Chairman Miller. Mr. McAteer.
STATEMENT OF J. DAVITT McATEER, VICE PRESIDENT FOR SPONSORED
PROGRAMS, WHEELING-JESUIT UNIVERSITY
Mr. McAteer. Chairman Miller, Ranking Member McKeon and
members of the committee, my name is Davitt McAteer; and I
thank you for this opportunity to present my views about MSHA.
From 1994 to 2000, I served as the agency's Assistant
Secretary and also served for a time as the Acting Solicitor of
Labor. I have been involved in mine safety and health issues
since 1968, following the tragic Farmington, West Virginia,
mine disaster.
Following the disaster at Sago and Aracoma Alma, Governor
Joe Manchin of West Virginia asked me to lead an investigative
panel into the causes of those disasters. In July and November
of last year I produced reports into those disasters, and I
submitted a copy of those reports for the record today.
Following the disasters of 2006, the families of the Sago,
Aracoma Alma and Kentucky Darby victims, this committee and the
American public asked the question, why hasn't the Federal
Government acted to bring about changes in health and safety
protections afforded miners? And why aren't new communications
systems, seals, rescue chambers and improved SCSRs been placed
in the mines?
While the answer is complex, the bottom line is this,
miners still lack a wireless, durable phone system; 14,000
alternative seals have not been strengthened; and rescue
chambers have still not been installed.
Those looking beyond the 2006 tragedies are also mystified
that MSHA's regulations to protect miners from black lung is
nearly 30 years old, its asbestos standard is 20 times less
protected than OSHA's, and its rules on mine rescue teams are
seriously outdated. The list of unfulfilled promises to miners
goes on and on.
During the past 6 years, this administration has terminated
multiple regulatory undertakings, including important rules on
SCSR's mine rescue teams and black lung prevention.
There is no doubt that the administration's regulatory
philosophy plays an important role in whether regulations are
issued and the type of regulations pursued, but that is not the
only factor it plays. If congressional oversight focuses
exclusively on politics, it will miss a tremendous opportunity
to address a serious problem that exists beyond the resident of
the White House.
Before being appointed to MSHA in 1994, I was one of the
agency's harshest critics. When I started the job, I had high
expectations in the form of new protective standards; and
during my tenure we finalized a dozen significant regulations.
Some of these had been initiated by my predecessor and others
were commenced and completed during my term.
Despite my determination to issue rules and the commitment
of MSHA's talented engineers and scientists, I am only modestly
satisfied with our regulatory accomplishments. In my case, the
faults did not fall with the agency's lack of commitment to
miner safety or unwillingness to regulate.
MSHA is a small agency within a large Federal bureaucracy.
Its mission is only one of many within the Department of Labor,
and it does not operate in a vacuum. Promulgating workplace
safety standards is a process fraught with obstacles. It was a
problem when I was at MSHA, and it will be a problem for the
next administration.
Some of the roadblocks were of the administration's own
making and some were created by my fellow lawyers exploiting
the regulatory system. When a rule is controversial, and most
are, it will take 4 to 6 years to complete. In the worst of
cases, the procedural maneuverings obstruct the process; and
those rules are never completed. This unfinished business of
protecting miners is the result of a broken rule making system.
Interest groups who have a stake in avoiding or postponing
new workplace safety rules have the financial resources to bog
the system down. There are numerous examples of this in MSHA's
history. But one of the most troubling to me is the mining
industry's efforts to obstruct MSHA's plan to correct the
manner in which miners' exposure to coal dust is measured.
One of my highest priorities was attempting to transform
MSHA's regulations to eliminate black lung disease once and for
all. Our efforts were comprehensive, and one small part
included dismantling the dust monitoring scheme put into place
by the U.S. Bureau of Mines in 1971. Under this outdated
policy, miners exposed to coal dust are calculated based upon
an average of multiple samples. You may have two or three dusty
jobs in a coal mine, and the agency is required to average
those miners' exposure with samples collected from less dusty
jobs. More times than not, the average will be less than the
enforceable limit, meaning the mine operator does not receive
an MSHA citation, and the inspector cannot compel the mine
operator to correct the problem.
Beginning in 1991, we attempted to change this policy, but
an unfavorable decision by the MSHA Review Commission forced us
to engage in a formal rulemaking. We sought to officially
revoke the sampling average policy and replace it with the
safeguard of a single-shift dust sample. After a 4-year
rulemaking process with multiple public hearings, we issued a
joint rulemaking with NIOSH. The mining industry challenged our
rule, arguing that we failed to conduct the proper rulemaking.
Their challenge was upheld by the Court of Appeals. We were
forced to begin another rulemaking to revoke this harmful
policy. Regrettably, the rule was not finished before I left;
and, today, the 1971 averaging scheme remains in effect.
I described in my written testimony three hazardous
situations faced by miners in which practical solutions exist
today. Those are the presence or absence of proximity
detectors, hardened cabs on bulldozers, and backup cameras on
large haulage trucks. These are circumstances that kill miners
day in and day out over the years. We have solutions, and
because of the nature of the regulatory system, we can't get
those solutions to be put in place.
I submit that the current regulatory system is broken, and
we need to find a new approach to protecting miners' health and
safety. I would suggest the four items for your consideration:
First, we need a full public analysis of accident,
injuries, illnesses and near misses, if you would, a national
report to Congress on health and safety related to best
practice. That is, what has been done right within an industry,
as well as deficiencies in protecting miners.
These best practices could then become a norm to help
establish the ``duty of care'' against which an individual
company could be judged. Even absent a specific regulation,
mine operators would be on notice that protections exist and
are available; and they have a duty to act whether or not a
specific regulation is in place.
Second, the establishment of a duty of care responsibility
for each mine operator. The duty of care would require a
thorough process of hazard identification, risk assessment and
risk control and would be coupled with the regulatory system,
not replacement for the regulatory system. This model has been
successfully adopted in several countries, including Australia
and Canada.
Third, incorporating mine safety and health into the
production of mining equipment, production equipment. This is
akin to requiring for the installation of safety equipment on
automobiles as part of the automobile manufacturers'
responsibility and not the responsibility of the automobile
driver.
For example, longwall mining machines cost in excess of $50
million and are unparalleled in their ability to mine millions
of tons of coal. Yet few, if any, safety and health features
are designed into this equipment.
Chairman Miller. Mr. McAteer, I am going to ask you if you
can wrap it up.
Mr. McAteer. I am sorry. I will wrap it up.
Fourth is permitting a quasi regulatory requirement agreed
upon by all parties as part of the duty of care; and, finally,
for Congress to follow the model established in the landmark
1969 Coal Act to instruct the industry directly on what is
expected of them.
With these changes I believe we could improve the
protections for miners and also avoid the Sago, Aracoma and
Kentucky Darby type accidents. Thank you, sir.
[The statement of Mr. McAteer follows:]
Prepared Statement of J. Davitt McAteer, Vice President of Wheeling
Jesuit University
Good Morning. My name is Davitt McAteer and I wish to thank you for
this opportunity to appear before you today. I am the Vice President of
Wheeling Jesuit University where I am responsible for research efforts
at the National Technology Transfer Center (NTTC) and Center for
Educational Technologies (CET).
In addition, during the past year and one-half, I conducted
investigations into the Sago and Aracoma/Alma No. 1 Mine disasters in
West Virginia at the request of West Virginia Governor, Joe Manchin,
III, and in July and November of 2006, issued reports on those
disasters, a copy of each I submit for the record.
From 1994 to 2000, I served as Assistant Secretary of the United
States Department of Labor for the Mine Safety and Health
Administration (MSHA) and also served as Acting Solicitor for the
United States Department of Labor from February, 1996 to December,
1997.
I have been involved in mine safety and health issues since 1968
when, following the Farmington Mine disaster in November of 1968, I
conducted a study and produced a report and book entitled Coal Mine
Safety and Health--A Case Study of West Virginia.
I come here today to attempt to address questions concerning
efforts to improve health and safety in United States for mine workers,
but also to propose possible solutions to long standing problems facing
the Mine Health and Safety Administration and other regulatory
agencies.
Following the disasters of early 2006--the families of the Sago,
Aracoma/Alma and Kentucky, Darby victims, this committee and the
American public asked the question of ``Why hasn't the Federal
Government acted to bring about changes in the health and safety
protections afforded miners, specifically why aren't new Communication
Systems, Seals, Rescue Chambers and improved SCSRs been placed in the
mines?''
While the answer is complex, the bottom line is that miners still
lack wireless and/or protected phone systems, the 14,000 alternative
seals have not been strengthened, rescue chambers are not yet installed
in United States mines, increased numbers of improved SCSRs are not yet
available to miners and the mine rescue system, although improved, is
not equipped as it should be for the 21st Century. We should, however,
note that much has been accomplished in terms of improved training of
miners on SCSRs, testing of new communication systems, approval by West
Virginia of rescue chambers, monitoring of existing seals, a moratorium
on alternative seal construction, and a proposal to strengthen the
seals which MSHA's forthcoming Emergency Temporary Standard will
address.
Still, those looking beyond the recent tragedies are mystified that
MSHA's regulations to protect miners from black lung and silicosis are
nearly 30 years old, its exposure limit for asbestos is 20 times less
protective than OSHA's standard, and its rules on mine rescue teams are
seriously outdated. The list of unfulfilled promises to miners goes on
and on.
There are reasons to suggest that in the past, MSHA officials have
been unwilling to issue much needed rules, or did not assemble the
necessary resources to get the job done in a timely way. Without a
doubt, during the past six years the Administration has terminated and
cancelled multiple regulatory undertakings (See Attachment 11),
however, since Sago, Aracoma/Alma, and Kentucky Darby as well as since
the passage of the Miner Act and as a result of this Congress's
oversight, the agency has stepped up its efforts to promulgate
regulations, especially those related to disaster relief.
There is no doubt that an Administration's regulatory philosophy
plays an important role in whether regulations are issued and in the
type of regulations pursued. But, that is not the only factor in play;
if congressional oversight focuses exclusively on politics, it will
miss a tremendous opportunity to address a serious problem that extends
beyond the resident of the White House.
As the Assistant Secretary for Mine Safety and Health from 1994
until the end of 2000, I devoted significant agency resources into the
development of new MSHA rules to protect miners. I came to the agency
with a history of being one of its toughest critics, and I had high
expectations in the form of new protective health and safety standards.
From the time I was confirmed by the U.S. Senate (February 1994)
until January 19, 2001, there were a dozen or so final rules issued by
MSHA.2 My predecessor initiated some of these projects (e.g., Hazard
Communication; Safety Standards for Explosives at Metal/Non-Metal
Mines; First--Aid at Metal/Non-Metal Mines) and we completed them while
I was Assistant Secretary. Others were new rules commenced and
finalized during my tenure (e.g. Preventing Hearing Loss/Noise
Standard; Safety Standards for Underground Coal Mine Ventilation;
Training for Stone, Sand and Gravel Miners/Part 46). A team of talented
MSHA engineers, industrial hygienists and analysts, would be pulled
together to work on each new rule, and typically this assignment was in
addition to their regular duties in an MSHA field office. These skilled
and determined individuals worked diligently to develop sound,
evidence-based and cost-effective regulations designed to prevent
miners from suffering injuries, illnesses and death. Despite my
determination to issue protective rules and the devotion of MSHA's
staff, I am only modestly satisfied with the number of regulatory
improvements made during my tenure. In our case, the fault does not lie
with the Agency's lack of commitment to miners' health and safety, or
an unwillingness to regulate.
MSHA is a small agency within a large federal bureaucracy. MSHA's
mission is only one of many within the Department of Labor, and the
highest priorities of MSHA's Assistant Secretary may just be one of
many for the Secretary of Labor. MSHA is not an independent agency, and
it does not operate in a vacuum. But let us put this regulatory
promulgation problem into context--this is not just a problem for this
Administration. It was a problem when I was Acting Solicitor and
Assistant Secretary for MSHA and it will be a problem for next
Administrations to come.
During my tenure, we found similar obstacles and road blocks, some
of which were the Administration's own making, some created by the
Federal Courts and some created by my fellow lawyers exploiting the
regulatory system and Federal Courts.
In the best of circumstances, promulgating a new health or safety
standard takes 2-3 years to complete. However, when the rule was
substantial and/or controversial, it can take 4, 6, 8 or more years
from start to finish. In the worst of cases, the procedural maneuvering
completely obstructs the process, and those rules are never completed.
This ``unfinished business'' of protecting workers' health and safety
is the result of a broken rulemaking system. Equally troubling was this
Administration's decision mentioned above to drop about a dozen
regulatory projects that were in the queue, including important rules
on SCSRs, mine rescue teams, and black lung prevention.
As currently structured, MSHA's system (like OSHA's) is unable to
address, in a timely manner, long-standing hazards faced by workers let
alone new emerging risks. The public policy considerations embodied in
the Federal Administrative Procedure Act, Presidential Executive Order
12866, the Paperwork Reduction Act of 1995, the Information Quality Act
of 2001, and their amendments and implementation documents3 as well as
other requirements have suffocated the public health and precautionary
values embodied in the statutes governing, among others, MSHA4 and
OSHA5. The harsh reality is that those interest groups, which have a
stake in avoiding or postponing new workplace rules, have the financial
resources and political clout to impede and/or bog down the current
rulemaking system. There are numerous examples of this in MSHA's
history, but one of the most troubling to me is the mining industry's
efforts to obstruct MSHA's efforts to correct a deadly flaw in the
manner in which miners' exposure to coal mine dust is measured.
When I was Assistant Secretary, one of my highest priorities was
transforming MSHA's regulations on coal mine dust to eliminate black
lung disease once and for all for U.S. coal miners. Our efforts were
wide-ranging and comprehensive and some required changes in long-
standing regulations. One of the keys to the effort was dismantling a
dust monitoring scheme put in place by the U.S. Bureau of Mines (BOM)
in 1971, which mandated that miners' exposure to coal mine dust would
be calculated as the average of multiple samples. In order for an MSHA
inspector to issue a citation for excessive coal mine dust, the average
of the samples has to exceed the exposure limit, plus an error factor.
As is well known, the average of multiple data points does not
accurately reflect the value of any one of the individual data points.
Likewise, when you have two or three dusty jobs in a coal mine (e.g.,
roof bolters, continuous miner operator) and you average these workers'
dust exposure samples with samples collected from less-dusty jobs, more
times than not, the average will be less than the permissible exposure
limit. The result: the mine operator does not receive an MSHA citation,
and MSHA cannot compel the mine operator to correct the respirable dust
problem, leaving miners, in particular a subgroup of miners, exposed to
elevated levels of deadly coal dust.
Beginning in 1991, MSHA attempted to change its enforcement policy
to eliminate the averaging of dust samples. After an unfavorable
decision by the Federal Mine Safety and Health Review Commission, MSHA
and NIOSH jointly engaged in a notice-and-comment rulemaking to revoke
officially the BOM's 1971 ``sample averaging'' policy, and provide
miners the health protection afforded by a single-shift dust sample.6,7
In addition, an Advisory Committee of industry, labor, public health
scientists and academics was constituted in November 1995 and issued
its report and recommendations in November 1996. After a lengthy public
comment period, which was reopened several times, and multiple public
hearings, a rule revoking the ``averaging'' policy was published in
early February 1998,8 after a 4-year public process. The mining
industry challenged the rule,9 arguing on procedural grounds that MSHA
failed to conduct a proper rulemaking. In September 1998 the U.S. Court
of Appeals for the 11th Circuit ruled in favor of the mining industry,
and we were forced to begin the rulemaking process again. To this day,
the rule remains as it was since 1971, in effect exposing a known set
of miners to dust levels which we know will result in black lung
disease.
As part of this comprehensive effort, we pursued with NIOSH, the
development and testing of a continuous dust monitoring system. That
effort allowed the introduction in several coal mines the initial,
first-generation machine-mounted continuous dust monitor, which proved
the concept that real-time continuous dust sampling was possible. These
in-mine tests led to the development of the second and now third
generations of continuous dust monitors, which are person-wearable
units. Tragically, this equipment has not yet been mandated or
implemented into U.S. coal mines. While black lung disease has been
virtually eliminated in Australia, a recent NIOSH analysis points to
the ongoing incidence of new cases of coal workers pneumoconiosis among
U.S. miners.10 We have the knowledge of how to eliminate it. We have
the means to eliminate it. What is lacking is the will at both the
governmental and industry levels. It is a shame on the mining industry
and on the United States' mining community that we have not eliminated
black lung disease.
MSHA, like its sister-agency OSHA, finds itself hidebound by a
multi-layered system which slows the process, and thus, the
implementation of much-needed worker protections. Agency staff and
senior officials in MSHA, and indeed miners and mine operators
themselves, know of longstanding hazards faced today by mine workers
that are causing injuries, illnesses and death for which remedies
exist. In fact many of the hazards encountered by miners today, are not
new, some are the same hazards faced by their fathers and even
grandfathers. More troubling, is that for many, if not all of these
dangers, a remedy exists to reduce or eliminate miners' risk of harm,
but is not being put in place.
The mechanical and procedural requirements relating to dates of
publication, public comments, record opening, request for additional
time for public comment, etc. add months to the process. This is not to
suggest that each of the notice and public hearing requirements are
lacking in merit or not worthwhile; the facts are that the system has
become overloaded. The search for alternative ways to eliminate these
risks and dangers must be expanded.
Two alternatives contained in the Mine Act ``negotiated
regulations'' and ``advisory committees'' have generally failed.
Negotiated regulations have proven to be, almost without exception, an
ineffective path to successful rulemaking in large part because they
can be stopped at any step of the process by any involved party.
Objections sometimes come after years of effort, meaning one interest
group, either industry or labor, can torpedo the whole effort.
The Act also contains an ``advisory'' committee option which
because of the two tiered requirements, first requiring equal
membership of labor and industry, plus a requirement that a majority of
committee members be unrelated economically to the mining industry, has
proved not only difficult to fulfill but has resulted in a near
impossibility to create a committee which can successfully report out
an agreed upon set of recommendations. Even when a committee can agree
on recommendations, MSHA must still then proceed with the normal
rulemaking process.
But let us turn to examples of known safety and health risks which
we can virtually all agree are causing death, injury and illness for
miners. These are problems for which solutions or answers exist, but
which, because of the cumbersome regulatory process or interest group
opposition slows the promulgation of regulatory remedies. We rarely
create a new way to kill miners, and in the following three examples,
solutions have existed for years but the Federal government has been
unable to promulgate protective new rules:
1. Proximity detectors can automatically turn off remote-controlled
mining equipment when it gets too close to miners. The problem of
putting mining equipment operators under unstable roof was solved by
allowing them to operate the equipment remotely. Currently a number of
equipment operators are killed every year when they are crushed by
moving equipment underground. Yet despite the fact that devices exist
which prevent these deaths, they are not in wide spread use in mines
and no regulations have been promulgated requiring their use.
2. Hardened cabs on bulldozers that are used on surge piles can
save lives. When a bulldozer falls into a void on a surge pile, the
bulldozer and the miner operating the dozer are covered over with the
coal or ore. It can take hours to remove the equipment and operator
from the surge pile, but if the windows on the dozer don't break and
the miner has enough oxygen inside the cab, he can survive. Every year,
there are documented lives saved using this technology, but it is not
required by regulation. A number of companies have installed this
equipment but a significant portion of the industry has not retrofitted
their cab windshields to strengthen them.
3. Back-up cameras on trucks and haulage vehicles at large surface
mines can save lives of miners who otherwise are at risk of being
crushed when the big trucks back up over miners or smaller trucks.
These large haulage trucks cost a fortune, but inexpensive camera
systems which are currently available, are not required by MSHA. In the
late 90s, I initiated a voluntary program to encourage operators to
install them, and sadly that program has languished in the last several
years.
Because of the recent mining tragedies, disaster-related
regulations have been placed front and center and correctly so.
However, this emphasis insures that the hazards described in the three
examples above will not be addressed and more miners will needlessly
perish from well-recognized hazards. I propose the following shift in
regulatory philosophy with respect to mine safety and health problems
and solutions.
The critical point is that the regulatory process is broken and
cannot be relied on to quickly address real needs for improvements and
fast moving changes in the modern workplace. Congress and the
regulatory agencies themselves, under the current regulatory framework,
cannot efficiently legislate or request solutions to every one of these
workplace hazards--issue by issue. We need to find a new approach to
protecting miners' health and safety. Below I have outlined four steps
to achieve this new approach.
First, we need a full public analysis of accident, injuries,
illnesses, and near misses, and possible solutions. If you will, a
National Report to Congress on Health & Safety, and Best Practices. The
Report will annually assess how MSHA, as well as other agencies, are
doing in achieving their core mission of saving lives and preventing
injuries and illnesses, such as in the case of MSHA and OSHA, or
improving environmental quality, in the case of the EPA. This Report
would also describe Best Practices in a particular industry, that is,
what is being done right, as well as deficiencies.
These best practices then would become the norm to help establish
the ``Duty of Care'' against which an individual company's efforts
would be judged. Even absent a specific regulatory requirement, mine
operators would be ``on notice'' that protections exist and are
available, and they have a duty to act, whether or not a specific
regulation is in place.
The federal agencies themselves are in the best position to
assemble and analyze the data and should be held accountable for what
they do with it. It may be that some things are appropriate for a
general regulation and this Report would be invaluable in setting
priorities. Congressional oversight and public scrutiny is the key.
Thus, some issues can be addressed through existing mechanisms like our
powerful private insurance system and traditional methods of corporate
accountability. And the power of Congress and the press should not be
overlooked as another means to effect change, but a yardstick is
necessary to measure performance and the annual Report would give us a
yardstick based on factual data and the analysis of trends.
Secondly, the current regulatory scheme should be blended with the
establishment of a Duty of Care responsibility on the part of each
operator. Broadly stated, the duty of care requires a risk management
approach on the part of each mine manager, including a thorough process
of hazard identification, risk assessment and risk control.
This duty of care approach should be coupled with regulations, not
a replacement of the regulatory scheme. This model has been
successfully adopted in several countries including Australia and
Canada.
At my request and as part of the Sago mine disaster investigation,
a memorandum entitled ``Thinking Out-Side-The Box: The Proposed Blended
Duty of Care and Safety Case Model for Regulation in the Coal mining
Industry of Australia'' was prepared by Suzanne M. Weise, Esquire and
Professor Patrick C. McGinley (West Virginia University College of
Law), which I submit for the record (See Attachment 2).
This Memorandum describes the generally applicable ``duty of care''
standard of Australian law and a proposal to amend to the existing coal
mine safety regulatory regime a ``safety case'' approach found to be
successful when applied occupational health and safety regulation of
other industries in Australia. Relevant to the post-Sago search for
ways to improve mine safety is the active involvement of mine managers
in developing mine-site specific approaches to reduction of health and
safety hazards.
The Memorandum concludes that in light of the criticism of post-
Sago regulatory and administrative proposals addressing perceived
shortcomings of the existing statutory and regulatory regime, critics
and regulatory change proponents should welcome the opportunity to
review and critique out-side-the-box approaches. The duty of care/
safety case regime has been successfully utilized in Australia to
address workplace health and safety issues relating to hazardous waste
and off-shore petroleum industries. Australian authorities are
examining the safety case approach to determine its potential
applicability to that nation's coal mines. The safety case approach is
one way that site-specific considerations may be given appropriate
attention as critics of post-Sago remedial proposals demand. At the
very least, those critics and other interested parties should begin to
explore new approaches to protect the health and safety of the nation's
miners.
As the Memorandum indicates, a duty of care model might have
limited application in the United States, especially given the
differences in production and number of mines in operation (i.e.,
Australia with 100,000,000 tons of coal produced annually v. the United
States, with 1.2 billion tons produced) but some model which mandates
operators to actually engage in the identification of risks and the
elimination of them, as part of their ongoing mining responsibilities.
These risk assessment requirements would be in addition to the safety
and health regulations required of industry by federal and state
agencies. The establishment of legal responsibility for the failure to
comply with the ``duty of care'' might help resolve the ``thorny
regulatory issues which tend to be frozen by ossified conventional
analysis.''11
The outcome at Sago might have been significantly different if the
operator viewed it as his responsibility for managing what was going on
behind the seals, rather than the ``seal it and forget it'' approach
which ICG management followed.
Moreover a third solution is to shift responsibility for
incorporating safety and health remedies into the production cycle,
that is, away from the regulatory agencies and onto the mine machinery
manufacturers. This is akin to requirements for the installation of
safety equipment on automobiles is part of the automobile
manufacturers' responsibility, and not the responsibility of the
automobile driver.
For example, longwall mining machines cost in excess of $50 million
and are unparalleled in their ability to mine millions of tons of coal.
Yet, few if any, safety and health features are designed into this
equipment. There are no locations to store self- rescuers (SCSRs) but
instead, miners continue to have to strap these bulky boxes onto their
belts. Likewise, and perhaps most disastrously, this longwall equipment
is not engineered or designed to capture the tons of coal dust created
as an integral part of this high speed powerful cutting machine.
Instead, miners who are stationed along the 100+ yards of the longwall
machine are inhaling coal dust, after the fact efforts to control the
dust with water sprays and shields are only partially effective at
best. Moreover, there is significant lost energy as the coal dust is
blown into the mined out workings. A vacuum system which captures the
coal dust could both capture that energy (the coal dust), and
dramatically reduce miner's risk of developing black lung and of a
coal-mine dust explosion.
Similarly proximity detectors are not being built into mining
equipment purchased today by mine operators. Video cameras providing
side and rear viewing for haulage truck drivers sitting 25 feet off the
ground, are not standard on all equipment, nor are harden cabs with air
supply systems. Despite being technologically available, these common
sense protections are not designed into new pieces of equipment sold to
the mining industry.
The development of health and safety equipment used by the mining
industry has been historically on a separate design and marketing track
from coal production equipment. Over the decades, the approach has been
to add protections and safeguards to the miners--and often as stop gaps
to the hazards, such as respirators, hearing protectors, and SCSRs,
etc.--rather than to eliminate the problem and make the protection part
of the production equipment. This disjointed approach, which segregates
development of the production equipment from the installation of safety
and health equipment, must change.
Fourth, innovative ways to regulate must be explored. Simplified
quasi requirements agreed upon by all the parties could be made part of
the duty of care model and failure to comply would open the operator to
litigation if he/she failed to adopt the industry adopted preventative
methods and norms.
Moreover, Congress could follow the model adopted in the landmark
1969 Coal Act, and instruct the industry directly on what is expected
for miners' safety and health in the law, rather than directing MSHA to
regulate. In a regulatory system that is broken and incapable of
rapidly and effectively addressing the many hazards still faced by U.S.
miners, direct Congressional intervention such as was done in 1969 in
adopting dust standards at 2.0 mg3, may be justified, and would not be
unprecedented.
Finally, industry is not prohibited from adopting voluntary
standards and joining in voluntary education and training efforts. Two
models which we undertook included: a Comprehension Dust and Noise
Training and Sampling Program for stone, sand and gravel operations,
and the national campaign to eliminate silicosis.
Under existing Metal/Non-Metal Mine regulations, operators are
required to monitor levels of air contaminants and noise, as frequently
as necessary, to ensure that their engineering controls are working
properly. At these kinds of miners, many mine operators do not
routinely conduct this monitoring, but instead rely on , MSHA
inspectors, who make inspections twice a year, to monitoring the dust
and noise at their workplaces. In essence, some operators rely on MSHA
to be their industrial hygienist, although MSHA is only on-site twice
per year.
Under an agreement signed with the National Stone, Sand and Gravel
Association, MSHA provided used dust- and noise-monitoring equipment to
mine operators, and provided multi-day training to miners or
supervisors so that these small operations would conduct their own
exposures samples for these two health hazards. By learning to
monitoring the mine environment as part of their routine production
cycle, these miners and operators could assess for themselves whether
their engineering controls were working properly.
The second example was MSHA's national campaign to eliminate
silicosis. It involved the identification of a problem (i.e., excess
exposure to respirable crystalline silica) especially in Metal/Non
Metal mines; education--providing information on the need for having
and maintaining effective dust controls; and enforcement targeted to
the training, controls and most importantly, levels of exposure. This
comprehensive model involved both industry and labor and was
successful, at least during my tenure, on highlighting the risks from
silicosis.
The changes proposed here would, if adopted in part, address the
risks identified at the Sago, Aracoma/Alma, and Kentucky Darby mines
and would hopefully protect miners from the types of disastrous
consequences which occurred in 2006. But they would also address the
long term problems which have hampered the agency from addressing
ongoing existing problems.
Finally, these changes could help reestablish the United States as
the safest mining industry in the world.
endnotes
\1\ Attached Chart prepared under the direction of Suzanne M. Weise
and Professor Patrick C. McGinley (West Virginia University College of
Law).
\2\ Self-contained self-rescuer approval process, joint rule by
MSHA and NIOSH, (60 Federal Register 30398, June 8, 1995); First-Aid at
MNM Mines, (61 Federal Register 50432, September 26, 1996); Explosives
at MNM Mines, (61 Federal Register 36790, July 12, 1996);
Safety standards for diesel equipment in coal mines, (61 Federal
Register 55412, October 25, 1996); Tuition fee waiver at MSHA's Academy
in Beckley, WV, (62 Federal Register 60984, November 13, 1997); Civil
penalties (63 Federal Register 20032, April 22, 1998); Training
requirements for experienced miners, 63 Federal Register 53750, October
6, 1998); Changes to operator's daily inspection reports at surface
coal mines, (63 Federal Register 58612, October 30, 1998); Training for
sand, gravel and stone miners (Part 46), (64 Federal Register 53080,
September 30, 1999); Coal mine ventilation, (64 Federal Register 45165,
August 19, 1999); Protecting miners from hearing loss, noise standard,
(64 Federal Register 49548, September 13, 1999); Hazard communication
(interim final rule), (65 Federal Register 59048, October 3, 2000);
Diesel particulate matter protection for coal miners, (66 Federal
Register 5526, January 19, 2001); Diesel particulate matter protection
for metal and nonmetal miners, (66 Federal Register 5706, January 19,
2001)
\3\ E.g. Presidential Review of Agency Rulemaking by OIRA
(September 2001); OMB Circular A-4, New Guidelines for the Conduct of
Regulatory Analysis (March 2004); OMB's Benefit-Cost Methods and
Lifesaving Rule (May 2003); Information Quality Bulletin for Peer
Review (December 2004); OMB Bulletin for Good Guidance Practices
(January 2007)
\4\ Federal Mine Safety and Health Act of 1977
\5\ Occupational Safety and Health Act of 1970.
\6\ MSHA noted that single-shift air samples are part of standard
industrial hygiene practice and the air monitoring approach used for
all other workplace air contaminants sample by MSHA and OSHA. This
anomaly of ``averaging samples'' only exists at U.S. coal mines.
\7\ The proposed rule was published on February 18, 1994 (59
Federal Register 8357).
\8\ The final rule was published on February 3, 1998 (63 Federal
Register 5687)
\9\ That is, the National Mining Association and the Alabama Coal
Association.
\10\ Centers for Disease Control and Prevention. Advanced Cases of
Coal Workers' Pneumoconiosis--Two Counties, Virginia, 2006, 55(33):
909-913, (August 25, 2006).
\11\ ``Thinking Out-Side-The Box: The Proposed Blended Duty of Care
and Safety Case Model for Regulation in the Coal Mining Industry of
Australia.'' Memorandum prepared at the request of J. Davitt McAteer,
Special Advisor to West Virginia Governor, Joe Manchin, III, for the
Sago Mine disaster investigation by Suzanne M. Weise, Esquire and
Professor Patrick C. McGinley (West Virginia University College of
Law).
______
Chairman Miller. Thank you very much. Thank you very much
for your testimony.
We have a vote on. I think what I will do is I will go
ahead and start my questioning, my 5 minutes; and then when we
come back on our side we will recognize Mr. Kildee, Mr. Hare,
Mr. Rahall, and then go down the dais here. But there are two
votes.
I just warn the members, I think that the Leadership's in
the process--three votes? The Leadership's in the process of
tightening up the clock on the first vote. So the idea that you
can leave here when there is zero on the clock, I think you
will find yourself in some jeopardy at the other end. We will
see whether that works or not.
Thank you very much, all of you, for your testimony.
Mr. Stickler, if I might begin with you, earlier today we
toured a demonstration of the rescue chambers, in-place rescue
chambers that are now approved for deployment in West Virginia.
I think 100 of them have been ordered in West Virginia. My
understanding is there are five or six of the models that have
also been approved, and I think also NIOSH has removed any
objection to their deployment. Is that correct?
Mr. McAteer. NIOSH has provided a letter to the State of
West Virginia suggesting that they don't see--they are not
saying in finality, but they don't see any potential conflict
between their approval process and the approval in West
Virginia.
Chairman Miller. Mr. Stickler, can you tell us where you
are in the approval process for this?
You know, I wrote you a letter back in March, I guess it
was, asking for an emergency rule on this, and that was
declined. Can you tell us where you are now?
Mr. Stickler. As you know, the MINER Act establishes NIOSH
to do research on refuge chambers and to issue a report by the
end of this year. MSHA has not simply been waiting on NIOSH. We
have been working with them. We have several working groups,
representatives from MSHA and NIOSH working together, looking
at significant issues regarding the testing of the refuge
chambers, the development of a protocol for doing the test; and
I have been told that NIOSH will likely recommend that MSHA do
a physical test of the refuge chambers before we would provide
any approvals.
I believe that MSHA needs the time that's provided in the
MINER Act to address the specific criteria that these refuge
chambers should meet and to establish a protocol for testing
and a facility to conduct that testing. And when we receive the
report from NIOSH at the end of this year, then at that time we
will move forward.
Chairman Miller. You anticipate that would be when?
Mr. Stickler. I would anticipate that NIOSH will complete
their study, issue their report by the end of this year, as
mandated in the MINER Act; and then there is 180 days in the
MINER Act for MSHA to make a decision on what would----
Chairman Miller. That's the middle of next year.
Mr. Stickler. That's right.
Chairman Miller. And what would be completed by the middle
of next year?
Mr. Stickler. Well, as I said, NIOSH would complete their
study by the end of this year. That would be presented to
Congress and the Secretary of Health and Human Services and
Secretary of the Department of Labor. MSHA then would have 180
days to study the information that's available and to make a
decision on what action they would take.
Chairman Miller. And you would make those decisions. And
what would the timetable be after that?
Mr. Stickler. Well, I can't project the timetable. You are
talking after the 180 days?
Chairman Miller. Yes.
Mr. Stickler. I can't project that at this time.
Chairman Miller. Well, what would the ordinary course of
events be--how long would that take you after the 180 days?
Mr. Stickler. Well, during the 180 days, not saying that it
would have to take 180 days for MSHA to make a decision, but
based on what course of action MSHA would decide to take, that
would determine the amount of time that would be required after
that.
Chairman Miller. For what purpose?
Mr. Stickler. Well, for whatever MSHA decides to do. You
know, there are various options. You could have a regular rule.
That's a possibility. Normally, we found that to do a rule
takes at least a year. You know, that's something that we
will----
Chairman Miller. So we are talking two-and-a-half years?
Mr. Stickler. That's a possibility, yes.
Chairman Miller. So the situation will be what in West
Virginia? These are going to be illegal?
Mr. Stickler. Well, in the interim----
Chairman Miller. Mines----
Mr. Stickler. I think you are aware that MSHA has issued a
policy on breathable air which requires mine operators to
provide 96 hours of breathable----
Chairman Miller. My understanding is--I don't know if there
is a picture of the shelter that we toured, but--there it is--
that the shelter complies with that. That's the West Virginia
standard, too, apparently.
Mr. Stickler. MSHA is accepting the refuge chambers that
West Virginia is using, and other mine operators across the
country are looking at to provide the 96 hours breathable air.
Chairman Miller. But you are not going to have a standard
for two-and-a-half years.
Mr. Stickler. For a refuge chamber. I can't tell you what
MSHA's going to do after they receive the report from NIOSH
other than we will study all the information available and look
at the facts and decide and make a decision during the 180 days
that Congress has provided for MSHA to make that decision.
Chairman Miller. So that's a good thing we didn't say 4 or
5 years, I guess. I don't get your sense of urgency. I am lost
somewhere.
Let me ask you, you mentioned in your testimony on the
seals that you are in the process of a rule on the seals.
Again, could you tell us where you are with that?
Mr. Stickler. Well, we submitted that to OMB on May the
8th; and I have a verbal confirmation that OMB has cleared that
emergency temporary standard today. I would anticipate within a
few days that will be published in the Federal Register.
Chairman Miller. That will be implemented how? There is
apparently a significant inventory of seals that may be
improperly constructed or insufficient under what we have
learned. What's the process of going through that inventory and
making a determination about the replacement of each?
Mr. Stickler. Well, back last year, MSHA issued a policy
requiring MSHA inspectors to inspect all the underground seals.
There are approximately 14,000 seals in underground coal mines.
MSHA has completed that inspection. We have issued quite a few
violations requiring seals to be repaired or replaced. At that
time, we also required the operators to do a survey of the
atmosphere behind the seals and to take appropriate remedial
action based on the results of those surveys.
Chairman Miller. So will this rule speed up that process by
which remedial action has to be taken?
Mr. Stickler. This rule will go beyond the process that was
in the policy in--regarding establishing new seal strength
standards for seals that will be built in the future, requiring
regular monitoring of the atmosphere behind seals, and remedial
action if the atmosphere would be at or near the explosive
range.
Chairman Miller. So--this is layman's terms--the work list
will be based upon the previous inspections made. I mean, I
assume we will go back--under this rule, go back and correct
all of those seals.
Mr. Stickler. The corrections to the previous--the previous
inspections that MSHA has done, those corrections have been
made.
Chairman Miller. They have all been made?
Mr. Stickler. Made as far as repairs and replacement of
seals that we identified were not built according to standard
or because of deterioration of the underground mining
conditions.
Chairman Miller. So they are all in compliance with the new
rule?
Mr. Stickler. Are the existing seals in compliance with the
emergency temporary standard?
Chairman Miller. Yes.
Mr. Stickler. No, the emergency temporary standard will go
beyond----
Chairman Miller. That is my point.
Mr. Stickler. That is why we are putting out an emergency
temporary standard.
Chairman Miller. So the existing seals are going to be
compared against the emergency standard, right?
Mr. Stickler. The existing seals, we will require
monitoring of the atmosphere. And if the atmosphere behind the
seals is at or near the explosive range, then remedial action
will have to be taken. That could be replace the seal with a
higher strength seal that would be explosion proof, withdraw
the miners from the underground workings, or other options that
an operator----
Chairman Miller. The operators will provide them monitoring
under guidance of MSHA?
Mr. Stickler. The operators will be responsible for doing
the monitoring, and MSHA will monitor on their quarterly
examinations of the underground mines.
Chairman Miller. Thank you. We will recess for the purpose
of going for this vote.
[Recess.]
Mr. Kildee [presiding]. I can recall one particular hearing
when we had a coal mine owner, at least the president of the
company, testifying and, of course, giving the best face
possible of his company's operations; and he told Carl Perkins,
Chairman Perkins, that our first concern is the safety of our
workers. And he, of course, put the best face on the safety of
the workers. He put it on a little strong; and Carl finally
banged the gavel and said, ``Sir, when I was 5 years old, my
daddy put me in the back of the buckboard, took me over to the
next holler for the funeral of my cousin, who was killed in one
of your mines. So don't you preach to me about mine safety. I
know about mine safety or the lack thereof.''
I always remember that. I learned the law from Carl
Perkins, but I also learned the morality of putting human
beings first, and that can be done.
If there be a mine owner who is so poor they cannot carry
out the safety of the workers, they shouldn't be in business. I
mean, really, when you put people down in those mines, you
better have the wherewithal to do what's legally right and
what's also morally right.
That is my preaching for the day.
Mr. Stickler--I spent 6 years in the Catholic seminary, so
I do preach a bit once in a while.
Mr. Stickler, your report on the Sago accident, it is not
the first to point out that, in an explosion, the walls which
maintained the flow of air down to where the miners are working
and back out again can fail in an explosion. I understand that
there are what I will call stoppings. If this happens, it not
only destroys the ability of the miners to get air, to breathe,
but also slows down the rescue operations, because the rescuers
need to replace these walls as they move forward so they too
can be in safety. What is MSHA doing to address this well-
recognized explosion hazard?
Mr. Stickler. Well, that is primarily the thrust of the
emergency temporary standard that we are currently working on,
is to address the seal strength so that future seals will
provide adequate protection for the miners and to also require
that sealed areas be monitored and remedial action taken when
it is indicated it is needed.
Mr. Kildee. We are actually talking about the walls of the
mines, aren't we? There are two things that tend to make sure
there is adequate egress and adequate safety, the coal columns
you leave up and then the walls. What do you do to make sure
that those walls are adequate? What kind of inspections do you
give for that?
Mr. Stickler. Are you referring to the seals? Is that what
you are----
Mr. Kildee. No.
Mr. Stickler. There is walls. I am not sure what you mean.
The coal walls, the ribs or----
Mr. Kildee. The stoppings.
Mr. Stickler. Stoppings.
Mr. Kildee. Yes.
Mr. Stickler. Relation stoppings, relation controls. Those
are required to separate the intake escapeway, fresh air
escapeway, any belt haulage entries, track haulage entries; and
the return air courses is where the ventilation stoppings are
used to control the air flow and make sure the air flows where
it's intended to be.
Mr. Kildee. Are those inspected regularly to make sure that
they meet at least the basic standards and specifications?
Mr. Stickler. That is part of the quarterly inspections
that our underground coal miners inspectors do, plus the daily
inspections on the pre-shift examinations that the mine
operator is required to do.
In addition, for those areas that aren't inspected during
the pre-shift examinations every shift, they are also required
to conduct weekly examinations.
Mr. Kildee. You would consider that a high priority?
Mr. Stickler. It is a high priority to do the safety
inspections correctly, yes.
Mr. Kildee. And when you train--when inspectors are
trained, they are trained in both technology and priorities. Is
that considered one of the high priorities in their training?
Mr. Stickler. Yes. MSHA's inspectors are very well trained.
Mr. Kildee. Mr. Bertoni, I know you are familiar with the
new regulations MSHA issued to adjust the way it calculates
proposed penalty assessments. MSHA has indicated that a key
reason for rewriting these regulations is to insure that the
more serious violations will receive higher penalties. Yet, as
I understand your statement, if a mine operator asks a hearing
officer of the independent Mine Safety and Health Review
Commission to review a proposed assessment, the hearing officer
isn't bound to give any particular weight to how serious the
violation may be. You think something needs to be done about
this, and could you elaborate on that?
Mr. Bertoni. I guess the--our main point, I guess
initially, is that we acknowledge the increase in the penalty
amounts that MSHA has, you know, put in place. We believe the
point system for, say, gravity increased from 33 to 88, which
will result in at least an initial higher penalty. And as that
penalty or that case progresses through the appeals process,
the individual who is doing the adjudicating at the appeals
level must consider the six factors that need to be considered
in terms of calculating the penalty amount.
I guess our concern was we know that they are using the six
statutory factors, but it is unclear how each of those factors
are being weighted and how the end result penalty, the final
penalty amount is being arrived at. That was just an area every
time when we looked at these cases we came away, at least some
of them, with some question as to how they weighed these
particular amounts. And that was--it was not clear how these
penalties were ultimately----
Mr. Kildee. So there is a lack of clarity in that area
then?
Mr. Bertoni. In our review, we found there was a lack of
clarity, at least in some cases, in some fairly large cases.
Mr. Kildee. Thank you very much.
Mr. McKeon?
Mr. McKeon. Thank you, Mr. Chairman.
Dr. Grayson, there has been a lot of discussion about
refuge chambers that are used in the underground coal
environment. Have these units been tested underground? Have
they experienced human testing? What, in your opinion, should
be the appropriate study protocol to test these chambers? And,
finally, do you have any concerns about the use of these
chambers?
Mr. Grayson. Actually, I did participate in the approval
process for one----
Mr. McKeon. Is your mike on?
Mr. Grayson. Yes, but I am probably not speaking loud
enough. Sorry.
I did participate as the professional engineer on one of
those rescue chambers. What we had done is we looked at the
criteria that are required by the State of West Virginia and
then did various types of analyses to make sure that all of
those things that were specified were met according to the
analysis.
One particular rescue chamber was placed into an explosive
mixture and tested to make sure it could at least handle 25 psi
overpressure. And, actually, it was around 30. That is the only
one to my knowledge that was actually tested in an explosive
environment.
Again, it was an engineering type of analysis, including on
the temperature rise and heat transfer and stuff of this
nature. That is of concern about the miners who may be in
there. There was a convergence of the analyses to show that the
temperature would be maintained below 95 degrees in three
different analyses converged among the five different chambers
that were analyzed.
So that gives some credence to the validity, if you will,
of the calculations. But no man test has been done, just to
make absolutely sure that if the miners are in there, indeed,
the temperature will be maintained and then the oxygen-CO2
balance would be maintained.
Mr. McAteer. Mr. McKeon, if I might speak to that question,
please.
Mr. McKeon. Sure.
Mr. McAteer. The State of West Virginia analysis of these
devices relied in part on the U.S. Army's tests that were done
with some of these same kind of or similar devices, as well as
some NASA tests, and relied--and borrowed that--those tests.
They did not undertake human testing, but in fact relied upon
the tests that were done by those other two agencies.
Mr. McKeon. Okay. Dr. Grayson, your testimony discusses the
development of the machine-mounted, continuous, respirable dust
monitor. Because the research, in layman's terms, essentially
skipped a step, the dust monitor didn't perform in the
underground coal environment. Can you discuss why that step was
bypassed and what cautionary tale that tells us today about not
skipping steps in the scientific process?
Mr. Grayson. Yes, I can elaborate on that.
Research for new technology that has been applied elsewhere
but not actually tested in a mine environment does require some
pretty good steps and protocol to make sure that once the--in
this particular case, once the accuracy is attained, both by
the manufacturer and then in the test chamber, then before we
actually place these into the mine environment, where there is
quite a bit of vibration and water droplets and things of this
nature, we really do need to be sure that it is going to have a
chance to survive that mine environment.
So the protocol had called for some laboratory testing and
then later on some in-mine testing with one or two prototypes
to be sure that the robustness would be achieved. And then if
we did see any problems, either in the laboratory or in the
mine, then we could go back and modify the design so they could
better withstand the vibration and water droplets and other
challenges that might show up from the mine environment.
What happened was that as soon as the prototypes--I think
there were 10 of them altogether that were created. As soon as
they were created, we did get some pressure to go ahead and
move them into the mine environment and sort of do a
demonstration, if you will. And at the same time we were doing
the demonstration, we were kind of checking the robustness and
see how well they would do. Unfortunately, all of the five
monitors--I believe it was five of them; it might have been
six--anyway, all of them were non-functional by the end of a
month. One of them failed on the first shift and primarily
because of water droplets.
So even though we were able to get them in the mine, it
then quickly became more of a development project rather than a
research project because we violated the research protocol. And
then at that point in time we had a parallel path, where we
were doing the personal dust monitor and we had a partnership
that was set up on both of these and had put together the
protocols for the research on both of those. And the other one
on the personal dust monitor, the protocol was followed to
fruition. And now we are, you know, very, very soon--we have
done all the field testing as well, and they are robust, they
are accurate, and we will soon have those implemented.
But the other particular technology then became pretty much
something that industry, meaning the manufacturers, would have
to work on with MSHA in order to get the robustness that was
required in the mine environment, in our opinion.
Mr. McKeon. Have those been pulled out then?
Mr. Grayson. The machine-mounted dust monitors?
Mr. McKeon. The ones that--no.
Mr. Grayson. The personal dust monitors?
Mr. McKeon. The ones you put in that failed.
Mr. Grayson. Yeah, they had to be pulled out.
Mr. McKeon. They are all gone?
Mr. Grayson. Yes.
Mr. McAteer. Mr. McKeon, if I could speak to that issue. I
was the assistant secretary during the time these tests were
being conducted. I was the one who urged that these devices be
put underground and was driven, in fact, by my knowledge of a
number of miners who have suffered from black lung disease. And
the urgency that that gives you when you have--when you face
the problem of seeing and continuing to see that we have in
this country new cases of black lung disease, when other
countries have eliminated the disease entirely.
I am struck by two points that Dr. Grayson makes. The
latter point that soon these devices will be underground.
``Soon'' was now 10 years ago when they first said that soon
they were going to have them. We still don't have those
devices.
Secondly, we didn't take all 10 devices underground. We
took a sampling. It was four devices that we took underground,
and we wanted to see them tested. The protocol was not violated
from the standpoint of all the devices were not taken
underground, but we said that NIOSH's approach in this matter
lacked the urgency necessary to address this problem. I would
do it again tomorrow. It did not slow the process down in any
way, shape or form. It did not slow the development down. That
development still isn't there yet today.
Thank you.
Mr. Kildee. The gentleman's time has expired.
Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman.
Thank each of the panelists for their expert testimony
today and, most importantly, your commitment to coal miner
safety.
In response, Davitt, in response to your last comment, I
recall that very well, and certainly commend you not only for
those efforts but your efforts in West Virginia to insure that
no more disasters occur in our State.
You know, there are so many issues, all of which have been
touched upon already by the GAO, the fines, rescue teams, the
loss of inspectors, the process that we go through for a safety
inspection, questions galore in each one of those areas.
Suffice it to say, in numerous areas we have had to be
defensive in the Congress over the last 6 years to prevent any
degradation or raising of dust level standards, for example, in
our mines.
That was a roll call vote we had on the floor of the House
many years ago. We had to scream and yell when certain
regulations were rescinded that allowed belt entry air, for
example, to be used as a ventilation vehicle.
But that is not the purpose of my questions or the purpose
of today's hearing, so far, anyway. I would like to follow up
on Chairman George Miller's questioning, very good questioning.
We in West Virginia are making tremendous advances. We are
pushing ahead. We are not waiting for any deadline to be at our
doorstep tomorrow morning or any regulation that tells us we
have to do something. We are doing it because we are concerned
about coal miners' health and safety. Governor Manchin has
taken the leadership, and Davitt McAteer is following through.
But what I want to ask you, Mr. Stickler, is, because West
Virginia is taking such fast action, it appears it is causing
problems for us as far as long-term Federal compliance. We have
heard of our commitments to these refuge chambers. We have
heard of our movement in other areas. We are moving ahead
rapidly. It is requiring operators, many of whom are
undertaking it very legitimately and commendably. They are
investing millions of dollars in these new technologies. But
they have a fear.
And there are others who are not doing such investments
because they are using the excuse, what if MSHA 2 years from
now or on down the road comes up with something different and
we get told we are bad boys then and get fined? There is that
uncertainty, legitimate uncertainty, that operators are facing.
They are afraid that you will come out with regulations making
whatever technologies they invest in today obsolete down the
road. That legitimate fear, as anybody would be afraid.
The State is trying to get MSHA to allow operators some
kind of cushion so that the West Virginia technologies that we
are moving ahead on of our own volition and concern for miners'
safety, we are looking for some type of cushion so that these
technologies to be considered compliant for today's time and
then newer technologies are approved by you in the future. Are
you in any way attempting to insure our operators that they
won't get fined or they won't be considered obsolete and all
the investments they are making today being thrown out the
window?
Is there some type of commitment or some type of assurance,
some type of process, partnering, if you will, whatever you
want to call it, being put in place to insure operators that
they won't be, 2 years down the road, told everything you have
done is wrong?
Mr. Stickler. Well, we have worked together.
Representatives from MSHA have participated as far as some of
the work that West Virginia did in the area of technology, the
refuge chambers.
We have recently met with representatives of West Virginia
to hear some of their concerns. But, at the end of the day,
MSHA's responsibility comes from the direction of Congress; and
Congress has specified, for example, two-way wireless
communication from the surface to underground miners that may
be trapped. And I don't think that we should or could move away
from the definition that Congress has provided and the time
frame that Congress set to have this technology in place.
Mr. Rahall. So it seems you are telling me that you need
more legislative direction from Congress then, when I would say
what we have had on the books is sufficient. It is only what is
on the books that ought to be implemented.
Mr. Stickler. What I am saying is we are intending to
follow the direction that Congress provided in regard to
requirements for technology.
Mr. Rahall. You want us to mandate these refuge chambers?
Mr. Stickler. I am not going to--I can only tell you that I
am committed to implementing and following the process that
Congress has put in place.
Mr. Kildee. Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman.
I thank the witnesses for their testimony, for being here
today, and for your commitment I think across the board to
improve miner safety.
I say to my colleagues, Mr. Rahall and Ms. Capito, if she
were here, that I am not the least bit surprised that West
Virginia is proving to be more agile, more nimble, more
responsive than Federal bureaucracy. But that would apply in
many cases on many subjects. It is an expectation. Federal
bureaucracies move slowly. And I want to explore that just a
little bit. I am not excusing it, because I share the
frustration that everybody else has.
I want to go back to the subject which we have talked and
talked and talked about, and that is these shelters. I, too,
went and visited the one that is over here on the Capitol
grounds, and it is pretty neat. It looks like a really good
idea to me. In fact, that is what I said to the folks over
there.
But it was also explained to me while I was there that
changes are already being made to this chamber. It is being
reoriented, it is being strengthened, thicker steel, more blast
protection, and so forth.
So it seems to me we are sort of caught right now in do we
want something now--and I would think if I were a miner I would
want something now--or do we want something better later? And
that is the trap that we fall into in so many ways. It is like
body armor for troops. Do we go with the best that we have? Do
we wait another 4 or 5 years and get something better, another
4 or 5 years after that? You would rather have something than
nothing.
So the question--I am just following up on Mr. Rahall--what
is it we can do to allow the employment, deployment of these
shelters and still provide some protection, if you will, for
those companies that are willing to put them in?
I don't know that we can, frankly, because I know I can
imagine the outcry should it prove that one of these shelters
where miners have sought refuge in is inadequate, has failed.
There would be an outcry, unquestionably lawsuits up and down
the street.
But I am just sort of throwing it out for any of you. Is
there a way that you can suggest which we can do something in
statute or something we can do that would allow mines to employ
what the best technology is that they have at hand today?
Recognizing that there is going to be something better later.
Because, whatever it is, it is going to be obsolete. There is
just no question about it.
Is it going object obsolete next year or 5 years from now
or 15 or 20 years from now? What is it we can do to allow the
employment of this technology? From anybody?
Mr. Stickler, you are sort of on the spot here with the----
Mr. Stickler. Well, we currently allow operators to use the
refuge chambers that are on the market today as a way to comply
with the 96 hours of breathable air that MSHA is requiring.
Mr. Kline. By the way, where did we get the 96 hours? Where
did that come from?
Mr. Stickler. Well, that was a policy that MSHA set. We did
research on the disasters that have occurred in the past to
determine how long it took rescue teams to locate the miners.
We also looked at situations such as, when you have a fire or
explosion, particularly, how long does it take for the mine
atmosphere to stabilize enough that you can get accurate
measurements to safely send rescue teams into the mine? And we
thought that the 96 hours would provide that.
Mr. Kline. Okay. Mr. Rahall, if you would like, I will be
happy to yield back to you. I am not sure we got to your--to
the answer to your question. I don't know if you want to pursue
that any further. I am trying to look for a way to make this
work.
Mr. Rahall. Let me commend MSHA on the 96 hours. That is
beyond the West Virginia 48 hours, and I appreciate it. Let me
give the rest of the panel a chance to answer the same
question.
Mr. Kline. All right.
Mr. McAteer. Mr. Chairman, if I might, this has been a
subject that we have been concerned about for some years. We
get a piece of safety equipment, we put it in the mines, and
then there is no progression because the industry is small in
terms of numbers. There is not a marketplace-driven kind of
renewal process. And it has been a concern for a number of us
in the industry.
Two parts to--the answer to my question is in two parts to
you, though. One, we need to act on what we have now,
recognizing that it is not perfect. It is not a perfect world.
But we need to get chambers underground now.
Then we need to continue to kind of research and to kind of
develop--this same kind of ongoing kind of development needs to
be done, both at--the National Research Council study, recent
study of NIOSH's actions suggest that they need to do some
kind--there needs to be some mechanism to try and get us to get
newer devices on an ongoing kind of basis. There isn't such--
there is not such a program that exists today.
Mr. Kline. Okay. I see, Mr. Chairman, my time has expired;
and maybe Mr. Grayson wants to chime in as well, which is
certainly fine with me. But it seems to me, with your
indulgence, it looks like we are still in that trap. If Mine
Safety--MSHA was to come forward and mandate this and it turns
out they are not adequately tested and they fail, it would be a
catastrophe.
I yield back.
Mr. Kildee. Thank you.
We have two votes. Ms. Woolsey, you want to take your 5
minutes now?
Ms. Woolsey. I would. Thank you, Mr. Chairman.
Mr. Kildee. The gentlelady from California, Ms. Woolsey.
Ms. Woolsey. I want to briefly comment on the testimony. If
I were one of the families in the audience and I was listening
to Mr. Stickler, I would be out of my mind in frustration over
the lack of urgency of your answers. Come on. This has been
years. We have had deaths.
Best technology versus future technology. Obsolescence, it
is going to happen. But a good-faith effort has to be made to
ensure that industry, mining industry, any industry, is doing
the best they can at that particular time, not risking doing
nothing in order to get the best later. That is always going to
be moving away in front of us. And I would assume that every
industry has budgets for upgrading for efficiency and safety
and making things better. So the mining industry is an
industry. Let us help them figure out how to stay current and
keep the workers as safe as possible.
Prevention is one tool. Certainly inspection is a great
step. Accident reports and reviews of what happened during an
accident is another step. Near misses, if they are reported--I
hope they are in this industry--that is something that might
have happened that didn't cause a huge problem but could have,
we need to learn from that.
And also learning from the workers. We had a mine hearing
last month and heard testimony from these wonderful women that
are here and the families and the widows of the miners and from
miners themselves; and we learned that these miners and their
families are reluctant to come forward to report health and
safety violations in mines because of their fear of punishment,
of being blacklisted.
Yesterday, my subcommittee, Workforce Protection
Subcommittee, had a hearing on private whistleblowers; and we
had Jeffrey Wigand, who blew the whistle on big tobacco, and
John Simon, who has a complaint about trucking violations. They
told their stories. They were really very brave.
And I hope you agree with me that one important element of
mine safety is to make it possible for the miners who are there
day in, day out to come forward to report health and safety
violations without fear of retribution. So I would like to open
it up and ask you each how you think we can make that process
more open, safer, and actually learn from it as our miners come
forward and tell us where they see safety problems. All right,
Mr. Grayson?
Mr. Grayson. If I may, I did want to follow up on the
rescue chamber idea, too. I think all we need to do is think
what would happen if a similar explosion occurred today and
they decided, the miners decided in their own minds that they
cannot get out? We would be where we were.
Ms. Woolsey. Well, I don't want to go off on that other
question----
Mr. Grayson. I am going to go on to that, too.
Ms. Woolsey. Okay.
Mr. Grayson. I am going to go on that point next. I just
wanted get that one in.
Because, right now, they would have to build up a barricade
again, and it would not be that great.
Ms. Woolsey. Okay. Answer my question on how to make this
so they are not blacklisted.
Mr. Grayson. Well, in the commission report we did note
that there is a minimum level of safety performance that all
operators should follow; and we have specified in there----
Ms. Woolsey. When they are not and the worker complains
about it, how does that work?
Mr. Grayson. If they do not, they should not be in the
business. We also agreed to that as a commission.
So, with that said, we need to be much more progressive in
the way that we, number one, perform; and if they can't perform
to that level they should be out of the business. And number
two, target them. Then, using the safety statistics, violations
included----
Ms. Woolsey. Okay. You are not answering my question, Mr.
Grayson. Mr. McAteer will.
Mr. McAteer. The need for protection is profound. The Mine
Act has the most far-reaching protection available to any
worker in the country. The difficulty is that the workers have
not had a--and don't have a way to get that--exercise that
right; and the agency has not been strong enough in endorsing
or in, A, educating and, B, in following up with those kinds of
complaints.
The agency has a role, and the individual miner has a role.
The difficulty we have is that they are in remote areas, and it
is very hard for you to get miners to come forward with claims
and to protect them when they do.
Mr. Kildee. We have three votes pending on the floor, and
we apologize, but we shall return. I hope you can remain. This
is a process around here. I have been in it for 30 years. It
doesn't work perfectly. But if you could remain, I know Mr.
Miller wants to come back and the other members.
You voted already? Come take the chair.
Mr. Payne [presiding]. Thank you very much.
I, too, am disturbed at the lack of urgency. It seems like
ever since I have been a little boy I have been hearing about
mine tragedies.
I remember the first labor leader I ever heard of was John
L. Lewis. I mean, he was a person that was bigger than life.
And I lived in an urban center that didn't know anything about
mining. But it was problems then, there seems to be problems
today, and we still seem to have a lack of urgency that we
need.
I wonder also about the communications. I understand that
in the MINER Act they were talking about some kind of
communications, wireless two-way communications. Could someone
tell me what type of communications there are currently
available when miners are trapped? Is there any way they can
communicate with people outside and any more effective way that
could be done?
Maybe, Mr. Stickler, you might be able to bring me up to
date on that.
Mr. Stickler. The Mine Act regulations require----
Mr. Payne. I can't hear you, sir.
Mr. Stickler. The Mine Act and the regulation requires two-
way communications from the underground workings to the
surface.
Recently, we have required mine operators to install a
redundant system; and that is accomplished by installing the
communication lines in separate air courses. So if there would
be a roof fall or a fire in one air course, a communication
line would be protected in the second air course. But these
systems, most of them require a hard wire, or all the ones
underground today require a hard wire system to communicate
from underground to the surface.
To our knowledge, there are no purely wireless systems that
you can communicate from the surface underground without having
underground hard wires or antennas.
Mr. Payne. Mr. McAteer, could you tell us what West
Virginia is doing?
Mr. McAteer. The present system in West Virginia, as well
as in the country, is that we are using the cable wire system
that has been in place for 40 years. We haven't made the
change.
Since Sago, there have been examinations of devices; and a
number of those show promise. First is the leaky feeder system,
which is, in effect, a sending a signal down that leaks, in
effect, and can be picked up then by phones that are wirelessly
connected to that leaking system.
Second is dropping nodes and--putting a node system down so
that every so often you put in a node system. That shows
promise.
A third system, which is from your State of New Jersey, is
the Kutta system, which is a system that goes on a blended
system that goes on any--I am sorry, steel or metal object and
can in effect use a leaky feeder or use the frame of a conveyor
belt or any one of those others. That shows tremendous promise
as well.
Those three systems are being tested. They are being proto-
tested in some mines and have been tested in West Virginia, and
we expect to see some of those put in place this summer. Those
are hopeful systems that will get us to a system that will
provide us with some better communication. It will not be
entirely wireless. There is some wire connected to it in some
way. But those systems are the ones that are being looked at.
Mr. Payne. Let me thank you very much. Since the time is
running late, I am going to have to adjourn soon.
There is--I understand, Mr. Holt, in your district there is
a system being tested. Do you want to respond to that?
Mr. Holt. Yes, Mr. Chairman, if I may.
I come to this not just as a scientist who is interested in
the technology that comes out of Fort Monmouth in New Jersey
but as someone who was raised in West Virginia. I grew up
there. My father, who many years ago as a U.S. Senator was
known, as people from that area tell me, as one of the best
friends the miner ever had.
I am particularly interested in this communications because
when you hear the stories about lost opportunities in mine
accidents, in many cases it traces to poor communication. I am
so pleased that last Congress we appropriated $10 million in
emergency supplemental money for NIOSH; and there is now
several million dollars going, as you mentioned, to the Kutta
system and to various other wireless communication systems and
interruptible and restorable communications systems. So I thank
the chairman.
Let me just finish by saying all of the discussion today
about whether there is sufficient authority to implement the
MINER Act rapidly are just excuses. We have got to implement
that immediately on a fast pace.
Thank you, Mr. Chairman.
Mr. Payne. And I couldn't concur more.
Let me commend the gentleman from West Virginia, Mr.
Rahall, for the interest and concern that he has had; and I am
sure that has had a lot to do with the speed in which West
Virginia is moving. In this instance, the States are certainly
moving much more quickly than we are at the Federal level, but
this is too important to have a bureaucracy turning down.
People's lives are at stake. We are talking about
increasing fossil fuels. The mining industry is not going to
get any smaller in the next immediate future. We need to act
more swiftly.
With that, the hearing will stand recessed until the votes
are concluded, about 10, 15 minutes.
[Recess.]
Chairman Miller. Thank you, everybody, for your patience
with these. We had a number of unexpected votes on the floor.
I would like now to recognize Congresswoman Shelley Moore
Capito.
Mrs. Capito. Thank you, Mr. Chairman.
I want to thank you all for your patience in our votes and
recesses and all that. I know it is frustrating, but that is
the way we live here.
I had a couple questions. First of all, the one I am
interested and mystified by or one of the issues is the
communications issue. I know that there have been 137
communications and tracking proposals, 51 applications, 19
approved systems, 15 remodifications and only 4 new systems.
And I read in some of our briefing papers that we remember
Chairman Norwood when he said, if we could talk to somebody on
the moon, why can't we talk to somebody underground in a coal
mine?
We want to help with these technologies and assist with the
creation of these technologies. Where are we on this? I
certainly hope we won't take the--I think it is 3 years
allotted for this to seek completion of this. Can you--
anybody--or, Mr. Stickler, could you start on the status of the
wireless technology?
Mr. Stickler. We are looking at that. We have several
systems that we have.
Mrs. Capito. Hit your mic, please.
Mr. Stickler. Is the mic on now?
MSHA has been involved in evaluation of two-way
communications. We have witnessed a demonstration, and we have
tested approximately 19 different systems. All of the systems
that we have tested to date, have been presented to us and that
we are aware of depend on a hard-wire communications system,
where there have not been any systems that have 100 percent
two-way wireless that we are aware of. But we are optimistic,
we are hopeful that the activity that is ongoing, and several
companies are working on them, and our hope is that they will
develop a two-way wireless system that we can communicate from
the surface to an underground miner.
We are trying to identify what is the next best option, and
I think in some part it is going to be a combination of
components from some of the best systems that are available and
interlaying those systems on top of each other and building
redundancy.
Mrs. Capito. Does anybody else have a comment on that?
Mr. McAteer. Congresswoman Capito, there are three
conceptual processes that have led to a number of companies to
build systems. One is where you take a telephone line and you
feed off of that onto a wireless connection.
A second is you put up a series of nodes, not unlike the
satellites you now use. You place those in the ground and you
then bank off that.
And the third is a hybrid system that we have talked about
a little earlier--perhaps you weren't here today--that a
consulting group out of New Jersey has developed a medium
frequency system that uses any, basically, metal structure in
the mine and can communicate through that.
None of these systems that we have today, as Mr. Stickler
has indicated, is entirely wireless; and I don't think we will
get to an entirely wireless system in the next couple of years.
I think that that is a goal, but I think that, as a practical
matter, we can get to a wireless--a system that is sufficiently
wireless that we--given the types of explosions that we have,
that will make us be able to--that has redundancies, that has
an ability to shift, as you do with your own cell phone, to
shift from one carrier to another, if one goes down. That kind
of system will then be available to the miners in the near
future.
And the old maxim of the enemy is the perfect of the good,
we need to put the good in and continue to search for the
perfect.
Mrs. Capito. I think one of the things at Sago which was
extremely tragic to all of us was the fact that they were
there. Had they had the ability to communicate, they might be
sitting here today; and I know we all agree that that is a
tremendous tragedy.
I would also like to associate myself with the question
that my colleague from West Virginia asked on the development
of the portable chambers for air that West Virginia has
developed and put a stamp of approval onto. I think it is
extremely disheartening to think that our companies are
following through on their agreement, companies are buying them
and installing them, and for them to come in and raise a
question for the viability I think presents a real conundrum
for a lot of our West Virginia mining companies.
So I would just like to say that I share his concern on
that. I don't really have a formal question on that.
I have two other little questions. The GAO report mentioned
that NIOSH and MSHA don't have as good a coordinating
relationship and need to build a memorandum of understanding.
Certainly in terms of speed, of getting good results, this is
something that we should move forward on; and I would like to
ask Mr. Bertoni and Mr. Stickler, any kind of views on that?
Mr. Bertoni. Our position is that they form a coordinating
mechanism like an MOU, is the way it should be proceeding.
I think in talking about a couple of these I should say
high-stakes technology issues today, the rescue chambers and
some other things that we talked about, I think there is
opportunity here for them to work together, to be in early, not
to wait for the outside parameters of what the MSHA calls them
to do to reach some final decisions for analysis, but, in many
cases, do some interim analyses, work together on an interim
basis to meet some milestones, talk along the way so that they
are in a better position sooner rather than later to make a
determination on, say, rescue chambers.
But, in general, yes, we believe that formal coordination
MOU will go a long way towards ensuring that they coordinate at
least going out into the future years, which is going to be
substantial retirements and turnover in both these agencies
over the next several years.
Right now, coordination is okay. It works in many respects.
But it is built on long-standing professional relationships
that have built up over the years in units in MSHA, in NIOSH;
and if those folks were to leave and retire, a more formal
agreement with an MOU that specifies who will do what, what are
the areas of authority, where are the areas where they overlap,
what are the demarcations, they are going to be in a better
position to come up with the best products and the best safety
standards going forward.
Mrs. Capito. Okay, if I could just ask one more question,
Mr. Chairman; and this is one I spoke with the Sago families
about just briefly.
I said, if you could be up here and ask one question, what
would you ask? And this is going to come as no surprise, I
don't think, to anybody on the panel. But their biggest
frustration, and I think it is a frustration shared by a lot of
us here, is why does everything move so slowly? Why are
decisions not made more quickly? Why are regulations that are
put into place not enforced more rapidly or with more teeth?
I suppose, in my opinion, there is probably not a real
rational explanation for that. I mean, we can all say, well,
that is the way government works, and the wheels of government
turn slowly. But for us in West Virginia who are all mining
families, even if we don't have somebody who mines every day, a
slow response is an inefficient response; and in our view, at
some points, it is a hurtful response.
So I would give Mr. Stickler--obviously, MSHA is where we
are looking at this--what would you say to the families? Why do
things move so slowly?
Mr. Stickler. If I could have just a moment, please, to go
back to your previous question as far as the cooperation and
working relationship between MSHA and NIOSH.
I know that we have a very cooperative working relationship
and a teamwork between MSHA employees and NIOSH employees. Many
of our employees participate in work groups with NIOSH, working
together on trying to solve some of the same problems and
address the same issues.
I have known Dr. Coburn for years. He is a personal friend.
I think we have a very good relationship. I have met with NIOSH
several times. He has been down to MSHA. I have been to the
Pittsburgh research centers for various meetings. We are
working on a memorandum that--an MOU that would memorialize the
good relationship that we currently have to preserve that for
the future.
As far as moving quicker on items, I would have to say that
a big part of the focus is on quality instead of quantity. We
want to make sure that we get it right; and the process also
includes involvement, participation, comments from outside
groups.
When we are in the deliberative process, we travel across
the country. We have meetings at key locations, located in
mining areas that have input from miners and labor and
industry; and we respond to all of the comments and concerns
that we get.
That is part of why the process does get extended and takes
a considerable amount of time, is it is an open process, it is
transparent, it provides participation for all the
stakeholders; and, at the end of the day, it ensures quality to
make sure that we get it right.
Mrs. Capito. I thank you very much.
Thank you, Mr. Chairman.
Chairman Miller. Thank you.
Mr. Hare?
Mr. Hare. Thank you, Mr. Chairman; and thank you all for
waiting while we had our votes. I just wanted to talk, if I
could, for a moment.
In my congressional district, I have eight mines in the
southern part of my district, west central Illinois. I would
like to ask a couple questions about limiting fire on the
conveyor belts and address them to Mr. Stickler.
As we know, after the Aracoma Alma accident, the conveyor
belts can catch fire. Years ago, the National Institute For
Occupational Safety and Health recommended that the belts
themselves be made more flame resistant. In fact, the current
standard--in picking up on what my colleagues said in terms of
moving slow--the current standard is 52 years old.
Before your arrival, the Bush administration stopped that
rulemaking that would have updated the standard. Now we have a
task force that is studying this thing yet again. My question
is, why can't that rulemaking be restarted now and a standard
issue immediately? I don't understand what the delay has been.
And this is, again, a standard, as I say, that is 52 years old.
Mr. Stickler. With regard to the Aracoma accident, the fact
that the belt that was used in it was fire resistant, what
caused that accident and the loss of life was not the belts
being fire resistant.
The key thing--we cited 25 contributory violations in the
law that contributed to that accident and the death of the
miners. The one that was most key is the fact that the
ventilation controls, the stoppings that separated the belt
conveyor from the fresh air escapeway, two of those stoppings
had been removed. So when the fire was in the belt entry, the
smoke products and combustion went into the fresh air
escapeway. Had those two stoppings been in place and if
everything else had been the same at that mine, the other 24
contributory violations still existed, and the miners would
have been able to evacuate because there is no smoke in their
intake escapeway.
Mr. Hare. I understand that. I guess what my question is--
we have a standard that is 52 years old and now your agency has
a task force that is going to study this problem again; and my
question to you again is why are we still waiting? Why can't
the rulemaking be restarted now and the standard issued
immediately for this, irregardless of if this is a danger point
and this can cause explosions or can cause people to die or to
become injured in a mine? Why do we have a standard 52 years
old that we are not updating and reinstituting a new standard
on?
Mr. Stickler. Well, Congress provided for the technical
study panel to study the use of belt air interface and also the
fire-resistant properties of conveyor belts. This panel was--
the charter was published in the Federal Register in December.
They have already--they had their first meeting in January,
their second meeting in March. They are meeting today in Salt
Lake City, Utah. Their next meeting is in Alabama. They are
doing extensive research to determine what would be the proper
standards for fire-resistant conveyor belts.
Now for us to move forward instead of waiting for their
report, we would have to do the same research to gather the
same data to make the same evaluation. At this stage, I think
is important that we allow the technical study panel that
Congress provided for, let them do their job. When we get that
information, then we will proceed accordingly.
Mr. Hare. Do you know approximately when that will be?
Mr. Stickler. Their report is due to be finalized by the
end of this year.
Mr. Hare. I would hope that it wouldn't take any longer
than that. Because I think, clearly, after waiting 52 years for
a new standard, I don't think we can wait much longer.
Just another question regarding belt air. Thanks to the
leadership of Congressman Rahall, we know the practice of belt
air can increase the dangers of miners to conveyor belt fire.
Before your arrival, the administration made it easier for mine
operators to use the approach. Do you have the authority right
now to act to limit this practice?
Mr. Stickler. We have the authority. But, again, I think
the technical study panel that Congress provided for, that is
the second thing they are looking at besides the fire-resistant
property, is the use of belt air interface; and they will
finish their report at the end of this year.
I trust that their recommendations will address this issue
properly; and my recommendation is, if we allow that process to
proceed--and this is a panel that is comprised of six very
skilled health and safety professionals. Two members were
appointed by the Department of Labor, two by the Department of
Health and Human Services and two by Congress. Many of these
individuals are professors of mining engineering at our primary
engineering schools across the country, and I trust that the
work that they are doing will provide us the information we
need to determine the proper and most protective standards for
the use of belt air and also fire-resistant belts.
Mr. Hare. Well, my time has expired, but let me just
suggest to you, Mr. Stickler, that I wouldn't wait too long for
this panel to get back. We have a lot of people in the mines.
This is a dangerous situation for people. I don't want to have
another hearing on why we have lost more people in the mines
while we are waiting for a commission to get back by the end of
the year. I would think if you have the power to do it, my
recommendation--my strong recommendation--would be to exercise
your authority and proceed with it.
I would yield back.
Mr. Stickler. Well, if I could, sir, I will just comment.
The authority I would have would be through the process of
implementing a new rule; and, as you know, that takes
considerable time. The panel will conclude their study by the
end of this year, and we will proceed accordingly.
Chairman Miller. Thank you.
Mr. Davis.
Mr. Davis of Tennessee. I would like to thank the chairman
and ranking member for holding this hearing today. I appreciate
the seriousness and scope of this hearing.
My question is primarily for Mr. Stickler, but anyone can
respond.
This week, I received a letter from an outstanding company
from my district that has spent thousands of dollars in
preparing a safety plan and enforcing that plan. The company
which performs only surface mining has asked me for guidance.
They have given me some examples that are problematic. Please
allow me to read a few lines from their letter.
Quote, one mission inspector has tried to issue a citation
to a very large operator because the chairs provided for
employees had only four legs instead of five and the inspector
alleges that four-legged chairs tip over easily. The same
inspector walks through the operator location and pulls the
trash from every trash container and leaves the trash on the
floor. He has stated on numerous occasions that he has looked
for items that spontaneously combust such as tubes of grease. I
will admit the oily rags, that will spontaneously combust, but
I have never seen or heard of a tube of grease doing this, and
if such a hazard did exist I am curious as to why the standard
packaging for grease is made of cardboard. End quote.
Mr. Stickler, is there a manual or set of standards that
outline the steps required for miner safety? Or is it left up
to individual inspectors to determine if four-legged chairs or
finding trash in trash cans are the threat to health and safety
of miners? Are we spending more time on filling out reports and
finding ``gotcha'' moments than we are in actually carrying out
the mission of MSHA, which is to protect the miners?
Mr. Stickler. Yes, sir. We do have the inspection handbook
for our inspectors. It is very detailed.
To go back to the specific case that you mentioned, we
don't have standards for how many legs are on chairs. I would
be happy to follow up if you would provide me enough detail
that I could follow up on that.
But I would also like to say that we have hundreds of men
and women that work for MSHA that work very hard every day to
see that the right thing is done for safety. Many of these
individuals go into coal mines that aren't as high as this
table and crawl on their hands and knees in mud and water and
hazardous conditions, that are dedicated to work very hard
every day to protect the health and safety of miners. And the
image that you projected there, I can't conceive that that is
something that exists within our organization.
Mr. Davis of Tennessee. I certainly appreciate you taking a
look at this, and I will have my staff provide you with the
letter that I quoted.
I certainly appreciate the inspectors going out and doing
their jobs. I hope we just don't put so much pressure through
the media and through Congress on inspectors to the point that
they try to find things just to be able to build a report. That
doesn't do mine safety any good.
What we need to do is to make sure that we have that set of
standards, follow those standards. That way, both the employer
and the inspector knows exactly what they are looking for.
I appreciate your willingness to work on this for me. Thank
you.
Thank you.
Chairman Miller. Thank you, Mr. Davis.
Mr. Stickler, if I might, I just have one quick question
and we will wrap this up. You have all been very patient with
your time.
In your testimony, I think you said about half of the
emergency response plans have been fully approved. I assume
that means half haven't been. What is the status of those that
have not yet been approved and what is the timetable for that?
Mr. Stickler. Well, the vast majority of plans have been
partially approved. And we say ``partially approved'' because
the ones that have not been fully approved, it is primarily
because of not providing for the 96 hours of breathable air. As
you know, we put out guidance for that in February of this
year. I think the last number I saw was roughly 55 percent of
the plans--emergency response plans now have been approved,
including the 96 hours of breathable air. So operators are
starting to respond to the requirement for breathable air.
There is one other issue that is a little bit of a problem,
maybe a handful of operators in regard to the size of the zones
for the pre-accident monitoring and tracking of miners.
As you recall, the MINER Act provides for pre-accident
tracking so that we know where miners would be located if there
is an explosion or fire. And most operators are doing that
through the process of communications where they are tracking--
where you go from one area of the mine to the other, that is
recorded.
There is an issue with just a handful of operators on the
size of those zones, and that process between the district
managers and the operators is such that we notify them that it
is unacceptable and give them time then to modify their plan.
But particularly in the last month or so since we have come out
with the guidance on breathable air, there has been very rapid
progress in increasing the percentage of plans that are fully
approved.
Chairman Miller. So you would expect that they would be in
compliance within 30 days, 60 days, 90 days?
Mr. Stickler. I am reluctant to give you a time period.
Also, I would point out that the MINER Act also provides a
mechanism, once we have worked with the operators through
informing them that what they have submitted is not acceptable,
given them a chance to resubmit, once we have gone through that
back and forth, and the next stop is to issue a violation, that
then will go to the Federal Mine Health and Safety Review
Commission, and a judge then will determine whether or not the
operator's plan was sufficient or whether MSHA----
Chairman Miller. You don't expect to go through that
process for 45 percent of the plans do you?
Mr. Stickler. Absolutely not. I would just take a handful.
Chairman Miller. I understand if somebody wants to
challenge it, but 55 percent of them have complied, as you have
pointed out. So I am just trying to determine what is going on
with the other half here. You know, it is kind of a basic
benchmark in terms of the MINER Act.
Mr. Stickler. Right. What is going on with the other half
is the review process is continuing. This is handled by the
district managers. We have 11 districts across the country, and
they have specialists that review these plans, identify the
deficiencies, write deficiency letters back to the operator,
and that is a back-and-forth process.
Chairman Miller. Do we have a list of those who have not
complied? Is there a list of those who have not fully been
approved?
Mr. Stickler. I don't have that list with me. I am sure--
that is one of the things we are doing, is we are tracking
regularly all the components of the MINER Act. Every
requirement of the MINER Act is being tracked by each district.
That is being reported in to the headquarters here in
Arlington.
We are monitoring the number of compliance for all the
specific items, whether it be a multi-gas detector that we put
in the emergency temporary standard and the final mine
evacuation rule that was finalized in December. But there is
about 15 items that we are tracking on a regular basis. We have
a monthly report that shows us the status of each one of those
specific requirements of the MINER Act.
Chairman Miller. So, theoretically, a printout is available
of their progress or their lack of progress?
Mr. Stickler. Yeah, we could provide that.
Chairman Miller. That would be helpful.
Congressman Kucinich, did you have a question?
Mr. Kucinich. Yes. To Mr. Stickler, the question arises,
with respect to enforcement, have you ever shut down a mine for
violations of health and safety?
Mr. Stickler. Well, MSHA's law requires that the area
affected by a violation, if it is an imminent danger, it would
be shut down immediately. If it is a situation where an
operator has been issued a citation and they have failed to
abate that citation or violation, that affected area can be
shut down immediately. It depends on the nature of the
violation. There are some----
Mr. Kucinich. I understand that is the law. But my question
was, have you ever shut down a mine for a safety or a health
violation?
Mr. Stickler. Well, I am sure MSHA has. When you have a
violation that would affect the entire mine, such as methane
accumulation or improper ventilation, that withdrawal order
that MSHA issues would affect the entire mine.
Mr. Kucinich. Have there been mines shut down recently for
health or safety violations?
Mr. Stickler. I am sure there have been mines shut down.
Mr. Kucinich. Anyone else on the panel that knows the
answer to that?
Mr. McAteer. Mr. Kucinich, the process--there are about a
thousand mines a year, on average, that have a shutdown order
on part or all of that mine to be shut down by the agency; and
that is year in year out. That is in addition to if there is an
imminent danger. So that does happen. But I can't say the last
year when it has.
Mr. Kucinich. Yeah, Mr. Chairman, I think it would be
interesting for this committee to know how serious the
administration has been on enforcement, how far they go to
ensure compliance by raising the issue. Thank you.
Chairman Miller. Thank you, Mr. Kucinich.
If you could help us get that information, Mr. Stickler,
that would be helpful.
[The information follows:]
Chairman Miller. Again, let me thank you again for your
cooperation this morning with the committee. I think clearly
you can hear the frustration from members of the committee
about the urgency of this matter. I think none of us want to be
on watch when again another group of miners are injured or lose
their lives in these accidents.
It was the intent I think of the authors of the MINER Act
that this would increase the margins of safety, and I think
that is why there is so much concern about the rate of
implementation around this Act. I think when the authors wrote
these emergency response plans, I assume that they believed
that the plans would be in effect in the near future. And, you
know, this process of negotiation in the regions, when this
will come to completion, they will have an approved plan,
appears it can take a very long time in different regions. I am
very worried about that time frame, and I think that the other
Members of Congress are, too, if that continues to drain on.
There ought to be a point at which it cannot go beyond.
But, again, this committee plans to stay engaged in this
until we get it right; and I hope that we can continue to call
on you for your expertise. But I think it is clear that the
Members of Congress and certainly those from the most heavily
impacted areas are looking for a different tone, a different
timetable, a different sense of urgency than we have seen in
the past. Because many of us believe that that led to the loss
of life and to the actions that took place, and we don't want a
repeat of that.
Thank you again very much, and my apologies for all of the
interruptions.
The committee will stand adjourned.
[The prepared 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 hearing on how effective
the Mine Safety and Health Administrations safety and health programs
are.
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.
The tragedies at the Sago Mine in West Virginia and the Quecreek
Mine in Pennsylvania shed light on the need for additional safety
measures to be implemented in mines throughout this country. To its
credit, the 109th Congress moved quickly in passing the MINER Act to
ensure that many of the necessary safety measures were codified in law.
I am interested in hearing how effective MSHA has been in
implementing provisions from the MINER Act, and whether or not these
provisions have done enough to ensure the safety of our miners.
Thank you again, Mr. Chairman, for holding this hearing. I yield
back the balance of my time.
______
[Supplemental materials submitted by Mr. McAteer follow:]
[Attachment 1: List of rules withdrawn by MSHA follow:]
[Attachment 2: Memorandum for the file follows:]
July 2006.
To: Sago Mine Investigation File
From: Suzanne Weise & Patrick McGinley
CC: Davitt McAteer
RE: Thinking Out-Side-The Box: The Proposed Blended Duty of Care and
Safety Case Model for Regulation in the Coal Mining Industry of
Australia
I. INTRODUCTION
New regulatory and administrative measures have been proposed to
address perceived shortcomings of the existing statutory and regulatory
mine safety regime subsequent to the Sago Mine explosion. Some coal
industry officials, regulators and other interested parties have been
critical of these proposals on the ground that broad, generally
applicable regulatory mandates, fail to take into account mine-specific
circumstances and features. Such criticism asserts that regulatory
mandates that fail to adequately address mine-specific issues are
likely to involve excessive cost in relation to increase in miner
safety and that they are likely to prove inefficient and or
ineffective.
This assertion that mine site-specific issues should be an integral
part of any response to the regulatory inadequacies identified in the
wake of the Sago investigation is not necessarily in conflict with the
regulatory proposals it criticizes. On the contrary, ``outside-the-
box'' analysis might lead to new approaches blending the general
regulatory mandate approach of recent proposals with critics' demand
for attention to site-specific mine characteristics. Below, this
memorandum identifies an example of ``outside-the-box'' thinking which
might provide the impetus for resolving concerns of critics of new mine
safety regulatory proposals. The memo does not argue for the adoption
of the blended duty of care/safety case regulatory model proposed for
the coal industry in Australia. Rather, the approach of the Australian
proposal provides and example of how creative outside-the-box thinking
may help to resolve thorny regulatory issues which tend to be frozen by
ossified conventional analysis.
This Memorandum describes the generally applicable ``duty of care''
standard of Australian law and a proposal to append to the existing
coal mine safety regulatory regime a ``safety case'' approach found to
be successful when applied occupational health and safety regulation of
other industries in Australia.\1\ Relevant to the Post-Sago search for
ways to improve mine safety is the active involvement of mine managers
in developing mine site-specific approaches to reduction of health and
safety hazards.
The following discussion describe in summary form a 2005 report and
attendant working paper made to and for the West Australian government;
the charge of Hopkins and Wilkinson, the reports' authors, was to
provide advice on best practice safety regulation for the mining
industry in that State.\2,3\
II. DUTY OF CARE IN AUSTRALIA
Australia is a national federation of six States and two
Territories. Under the Australian system of government, States and
Territories have responsibility for enacting and enforcing laws
relating to workplace health and safety.\4\
Each State and Territory has a principal Occupational Health and
Safety (OHS) Act which sets out requirements for ensuring workplace
health and safety. These requirements spell out the duties of different
groups of people who play a role in workplace health and safety. These
requirements are known collectively as the ``Duty of Care.'' \5\ Duty
of care legislation ``is often described as outcome-based, performance
based, or goal setting legislation because of its focus on outcomes.\6\
This duty of care standard has roots in the common law tort of
negligence recognized in Anglo-American jurisprudence. In Australia's
occupational health and safety law the duty of care is a component of
statutory regime protecting workers.\7\
Duty of care requires employers, employees and any others who may
have an influence on hazards in a workplace to do everything
`reasonably practicable' to protect the health and safety of
workers.\8\ Prior to the adoption of the duty of care approach, safety
obligations were imposed only up to the level of the mine manager and
no duty was imposed on mine owners.\9\
The term `reasonably practicable' under duty of care means that the
requirements of the law vary with the degree of risk attendant a
particular activity or work environment which must be weighed against
the time, trouble and cost of taking measures to control the risk.\10\
It allows the duty holder to choose the most efficient means for
controlling a particular risk from the range of feasible options
preferably in accordance with the `hierarchy of control'.\11\
The range of options falling within the scope of `reasonably
practicable' allows employers to meet their duty of care at the lowest
cost and require advances in technology and knowledge to be
incorporated when efficient to do so.\12\ The duty holder must show
that it was not reasonably practicable to do more than what was done or
that it has have taken `reasonable precautions and exercised due
diligence.' \13\
Specific rights and duties flowing from the duty of care include:
provision and maintenance of a safe plant and systems of
work;
safe systems of work in connection with a plant;
a safe working environment and adequate welfare
facilities;
provision of information and instruction on workplace
hazards and supervision of employees in safe work;
monitoring the health of employees and related records
keeping;
employment of qualified persons to provide health and
safety advice; and
monitoring conditions at the workplace.
These rights and duties are representative of employer's specific
duties in all Australian States and Territories.
When workplace duty of care legislation was first adopted, there
was some concern that ``prescription'' would be abandoned and there
would be a move toward industry self-regulation.\14\ However,
experience has shown that the duty of care approach to occupational
health and safety in Australia works in conjunction with statutory
prescription rather than as a replacement.\15\ The ``broadly stated''
duty of care approach is ``now widely understood'' as requiring a risk
management approach including a process of hazard identification, risk
assessment and risk control.\16\
As noted above, Australia's application of duty of care doctrine to
occupational health and safety regulation involves companies in risk
assessments regarding specific hazards and allows employers to make
site-specific decisions as to measures needed to control identified
risks. Discussed below in Section III is a proposal to incorporate much
broader opportunities for coal operators to meld a mine safety
regulatory regime to local conditions and considerations. In the Sago
Mine context, such an approach or a derivation thereof might allow
proponents and critics of new regulatory mandates to find common
ground, especially as to the issue of consideration of mine-specific
issues.
III. PROPOSAL TO USE ``SAFETY CASES'' FOR REGULATION OF AUSTRALIA'S
MINING INDUSTRY
Hopkins and Wilkinson provide an example of how ``thinking outside-
the-box'' might resolve difficult and contentious issues relating to
coal mine health and safety in their working paper, Safety Case
Regulation for the Mining Industry, prepared for the Australian
National Research Centre for Occupational Health and Safety
Regulation.\17\ As discussed below, Hopkins and Wilkinson's paper draws
from the Australian experience with successful ``safety case'' regimes
applied to major hazardous waste facilities in the State of Victoria
and the National Offshore Petroleum Safety Authority (NOPSA).\18\ Most
relevant to Post-Sago efforts to improve mine safety in West Virginia
and other coal producing jurisdictions is the safety case emphasis on
careful site specific analysis of safety and health hazards. The
suggestion that regulation and site specific health and safety issues
are inimical is clearly debunked by the safety case approach.
Before discussing their proposal to blend the existing mine safety
regime including its' broad duty of care requirements, they begin their
discussion with the proposition that safety management systems need to
focus on the most serious hazards while not neglecting other health and
safety risks.\19\ They opine that major accidents are usually preceded
by indications of trouble and that safety plans must therefore identify
these indications and specify appropriate action to be taken when they
occur.\20\ They explain:
[P]lans must identify trigger levels, or events, and action
response plans, actions to be taken in response to trigger events. For
each hazard, there are normally several trigger levels of increasing
seriousness, with corresponding action plans, ranging up to withdrawal
of all personnel from the mine. Mines have therefore developed
schedules of triggers and corresponding actions and these have become
know as TARPs (Trigger Action Response Plans).\21\
According to Hopkins and Wilkinson, ``TARPs are the heart and soul
of * * * principal hazard management plans.''\22\
The working paper notes that ``in other industries the need to
focus on the most serious hazards and the apparent failure of previous,
(mainly prescriptive), regulatory systems * * * led to the development
of safety case regimes.'' \23\ These regimes require operators to:
provide a detailed description of the hazardous facility
identify all potential major hazards and major accident
events
carry out a systematic assessment of the nature of such
events and their consequences
put in place control systems to safeguard against such
events
monitor the controls to ensure that they are working
embed this control system in a comprehensive safety
management system.\24\
Hopkins & Wilkinson explain how safety cases differ from duty of
care responsibilities:
Arguably, all this is already required by the general duty of care.
But the crucial additional feature of a safety case regime is that it
is a licensing regime. Operators are required to make a case to the
regulator indicating how they intend to comply with these requirements
(hence the term ``safety case''). Regulators must ultimately accept or
reject the safety case.\25\
They observe that the evaluation of safety cases may be quite time
consuming and that complex safety cases require considerable expertise
because of the amount of detail in complex safety cases.\26\ Further,
Hopkins and Wilkinson point out that ``once accepted by the regulator,
all the detail in the case is enforceable.'' \27\ Safety case regimes,
they emphasize, ``are * * * not a retreat from prescription; it is
simply that what is prescribed is set out in the safety case rather
than in legislation or regulations.'' \28\ The amount of detail in a
safety case is proportionate to the complexity of the operations at the
site and smaller mines are likely to require a much more simplified
safety case than large mines.\29\
A safety case regime can be resource intensive especially where
mines require complex safety cases. The authors emphasize that a safety
regime must be well resourced or it would likely offer no advantages
over and above non-safety case regimes.\30\ They also address the risk
assessment component of safety cases and respond to criticism that such
assessment is problematic.\31\ Hopkins and Wilkinson concede that some
criticism of how risk assessment is applied may be accurate but not
criticism of the safety case concept itself.\32\
For complex facilities with complicated processes, they argue,
there is no alternative to the use of systematic hazard and risk
assessment methodologies. Moreover, they minimize the complexity of
safety cases observing that:
* * * for many risks, especially for general occupational health
and safety risks, appropriate precautions are well known. For example
the law generally requires certain dangerous machines to have suitable
guarding, power takeoff shafts on tractors to be covered, ladders on
construction sites to be secured, heavy vehicles to have efficient
brakes and so on. In other words, the risk assessment part of the
process of managing health and safety has already been done, and the
standards are well known and documented. * * * [I]n these
circumstances, it is neither necessary nor desirable to carry out a
risk assessment from scratch. The assessment process is generally a
narrower one of checking that the standard precautions are appropriate
in this particular case.\33\
Hopkins and Wilkinson also examine activities of inspector carries
in a safety case regime and the implications these have for
staffing.\34\ They identify the most important duty is to judge if the
company has the leadership, staff, systems and procedures to safely
operate the facility.\35\ ``Where there are deficiencies,'' the authors
observe, ``the regulator must have the capability to recognize these
and develop appropriate strategies to persuade senior staff to make
appropriate changes.''\36\ As far as enforcement in the safety case
setting, resort is rarely made to legal options but Hopkins and
Wilkinson confirm that regulators are expected to take formal
enforcement action when appropriate.\37\
Hopkins and Wilkinson recognize the difference between safety case
situations and the traditional role of safety inspectors to check for
compliance with specific requirements in the legislation and
regulations. They confirm that this type of compliance monitoring
continues to have a place in a safety case regime has its place,
``especially if the information obtained is used to build a picture of
how the organization health and safety systems are operating.''\38\
They caution that inspectors must be cautious to ``avoid concentrating
on minutiae and missing the bigger picture.''\39\
The working paper also emphasizes that regulatory staff must have
personal credibility with senior company staff to have their views
taken seriously, so the regulatory staff must possess knowledge and
first hand experience of the industry to be regulated.\40\
Following these observations, the working paper proposes specific
principles of best practices regulation of which the safety case is an
integral part.
IV. A BEST PRACTICES SAFETY CASE REGIME PROPOSAL FOR THE AUSTRALIAN
COAL INDUSTRY
Hopkins and Wilkinson recommend consideration of the 33 principles
\41\ in developing a safety case regime for the mining industry. These
principles are briefly summarized below; the full statement of
principles appearing in the working paper is attached as Appendix.
(1) Safety case regimes should be introduced in the mining
industry, not as a replacement of duty of care but as an addition to it
by requiring operators to demonstrate how they intend to fulfill their
duty of care.\42\
(2) Safety case requirements should apply to all mines, regardless
of size, with the understanding that the smaller and less complex the
mine, the simpler the safety case.\43\
(3) Safety cases should emphasize the idea of triggers to action
and incorporate trigger action response plans where appropriate.\44\
(4) Safety cases in the mining industry should address all risks
including those to occupation health.\45\
(5) Safety cases should include a detailed consideration of fatigue
management.\46\
(6) Mining safety cases should not normally be required to carry
out quantitative risk analysis.\47\
(7) The workforce and their representatives should have the right
to be consulted I in the development of a safety case and to raise
concerns about a safety case after it has been accepted.\48\
(8) The safety case regime should specify guidelines for employee
participation.\49\
(9) Safety cases should include provision for adequate training for
workforce and management.\50\
(10) The development of safety case regimes within particular
jurisdictions should be coordinated and aligned where possible.\51\
(11) OHS should be amalgamated into a single Act, with industry
specific regulations and codes of practice where necessary.\52\
(12) Prosecution can be of companies and individuals. The
repertoire of enforcement options available to inspectorates should be
as broad as possible, and the workforce, in particular health and
safety representatives, should have the right to request the regulator
to initiate an investigation with a view to enforcement action,
including prosecution.\53\
(13) Inspectors must carry out both announced and unannounced
inspections.\54\
(14) Separate statutory authorities should be established to manage
safe case regimes in the mining industry.\55\
(15) Regulatory staff must be paid competitive salaries in order to
recruit and retain staff of the requisite quality.\56\
(16) There should be a single point of contact for a site within
the inspectorate (i.e., one person should have overall responsibility
for the site and visits it regularly).\57\
(17) The competency and accountability of all staff required for
the Authority should be defined.\58\
(18) Recruitment of staff to an Authority will need to be by open
advertisement.\59\
(19) A comprehensive training program will need to be developed and
implemented as part of developing an enhanced inspectorate, including
training in the techniques of root cause analysis (designed to identify
the systemic causes of accidents) and evidence gathering as a prelude
to prosecution.\60\
(20) Inspectors should be trained both in systemic accident
analysis and in evidence gathering, particularly concerning neglect by
senior company officers.\61\
(21) Inspectorates should publish reports on all significant
accidents, using the Australian Transport Safety Bureau reports as a
model.\62\
(22) The size and cost of a safety Authority should not be
determined by any historical method but should be worked out from first
principles. The assumptions upon which size is determined should be
transparent.\63\
(23) Government should be aware that any proposed Authority would
cost substantially more than the present regulator and should seriously
consider the possibility of external funding options such as imposing
an industry levy.\64\
(24) One-off start up costs should be paid by the government.\65\
(25) If the decision is to fund an Authority in part or in whole
from industry sources, the funding arrangement should not be set up on
a fee for service basis.\66\
(26) A proposed Authority should have an expertise based advisory
board which should include representatives of industry, the workforce,
unions and government.\67\
(27) The Authority should report to parliament, through a Minister
to be decided by government.\68\
(28) The Authority's ways of working, systems, procedures and
activities should be as transparent as possible.\69\
The authors, in concluding that the safety case system should be
the basis for the regulation of health and safety in the Australian
mining industry, recognize that ``best practice regulation requires the
ability to effectively monitor and audit companies safety cases as well
as the provision of high quality advice, encouragement and stimulation
to the industry to improve its own performance as well as effective
enforcement and prosecution of the (revised) law, where
appropriate.''\70\
V. CONCLUSION
As noted in the introduction to this memorandum does not argue for
the adoption of the blended duty of care/safety case regulatory model
proposed for the coal industry in Australia. Rather, the approach of
the Australian proposal provides and example of how creative outside-
the-box thinking may help to resolve thorny regulatory issues which
tend to be frozen by ossified conventional analysis.
In light of the criticism of Post-Sago regulatory and
administrative proposals addressing perceived shortcomings of the
existing statutory and regulatory mine safety regime critics and
regulatory change proponents should welcome the opportunity to review
and critique out-side-the-box approaches identified by those outside
the current MSHA regulatory framework. The Australian duty of care/
safety case regime has been successfully utilized in Australia to
address workplace health and safety issues relating to hazardous waste
and off-shore petroleum industries. Australian authorities are
examining the safety case approach to determine its' potential
applicability to that nations' coal mines. The safety case approach is
one way that site-specific considerations may be given appropriate
attention as critics of Post-Sago remedial proposals demand. At the
very least, those critics and other interested parties should begin to
explore new approaches to protect the health and safety of the nation's
coal miners.
endnotes
\1\ Hopkins & Wilkinson, ``Working Paper 37: Safety Case Regulation
for the Mining Industry,'' (July 2005). (Hereafter ``Hopkins &
Wilkinson'').
\2\ Id. at 3. The advice was provided in the first place to a Mine
Safety Improvement Group and formed the basis of its report to
government, delivered in April 2005. The full report is available at:
http://www.ministers.wa.gov.au/carpenter/docs/features/
interim%20report%20stage%201%20w%20text.pdf
The Hopkins and Wilkinson working paper discussed herein ``aims to
extricate the advice outlined in that report from the particular
Western Australian context and present it in a way that is of potential
relevance to other Australian jurisdictions. The aim, then, is to
present a model for best practice safety regulation in the mining
industry generally.'' Id. The report and working paper do not parallel
traditional discussions of regulatory models that focus on regulatory
requirements to be imposed on a regulated industry. Rather, Hopkins and
Wilkinson go further--considering both regulatory requirements and with
the structure of the regulator.
\3\ Id. Wilkinson and Hopkins explain their report and work paper
devote considerable attention to regulatory structure because of its
importance for any government seeking to set up a best practice
regulatory regime.
\4\ The following is a link to the State and Territory OHS
authorities: http://www.nohsc.gov.au/OtherRelatedSites/australiansites/
\5\ The ``duty of care'' standard of the common law tort of
negligence (in American Jurisdictions often referred to as the
``reasonable person'' standard) underpins the development of
occupational health and safety regulation in Australia as well as in
the United Kingdom.
\6\ Id. at 3-4, note 3, citing, N Gunningham, ``The Development
Model for best practice regulation in the mining industry of a New
Regulatory Model for Occupational Health and Safety in the New South
Wales Coal Industry'', October 1999. Paper available at http://
www.minerals.nsw.gov.au/legislation?p=1696#Coal at 47.
\7\ See generally, http://www.ascc.gov.au/OHSLegalObligations/
DutyofCare/dutycare.htm
\8\ ``Any others'' includes contractors and those who design,
manufacture, import, supply or install plant, equipment or materials
used in the workplace.
\9\ Hopkins & Wilkinson, supra note 1 at 3.
\10\ The words ``reasonably practicable'' have been the subject of
much judicial consideration. Three general propositions are to be
discerned from the decided cases:
the phrase ``reasonably practicable'' means something
narrower than ``physically possible'' or ``feasible'';
what is ``reasonably practicable'' is to be judged on the
basis of what was known at the relevant time;
to determine what is ``reasonably practicable'' it is
necessary to balance the likelihood of the risk occurring against the
cost, time and trouble necessary to avert that risk.
Slivak v. Lurgi, 205 CLR 304, 322 [2001] HCA 6 (citing cases in
footnotes 36 through 39).
\11\ The `hierarchy of control' refers to the range of feasible
options for managing the risk to health and safety. The hierarchy
normally ranges over the following controls: elimination of the hazard;
its substitution with a less harmful version; its redesign; engineering
controls; isolation of the hazard from people at the workplace; safe
work practices; redesigning work systems; and the use of personal
protective equipment by people at the workplace. http://
www.nohsc.gov.au/OHSLegalObligations/DutyofCare/dutycare.htm.
\12\ http://www.nohsc.gov.au/OHSLegalObligations/DutyofCare/
dutycare.htm
\13\ Id.
\14\ Hopkins & Wilkinson at 4. Black's Law Dictionary (8th ed.
2004), defines ``prescription'' as ``[t]he act of establishing
authoritative rules.'' The term ``prescription'' used in the Australian
Occupational Health Safety context refers to what Americans call
``regulatory mandates.''
\15\ Id. at 4.
\16\ Id.
\17\ The National Research Centre for Occupational Health and
Safety Regulation is a research within the regulatory institutions
network, in the Research School of Social Sciences, at the Australian
National University. The Center is funded by the National Occupational
Health and Safety Commission (``NOHSC''). http://ohs.anu.edu.au
\18\ Hopkins & Wilkinson supra, note 1 at 7. The Victorian regime
covers about 50 major hazard sites in that state. The legislation draws
on the national standard for the regulation of major hazards, but is
informed by major hazard regimes in Europe and goes beyond the national
standard in various respects. The Victorian regulator is relatively
well-resourced. It has scrutinized and commented on safety cases in
great detail. Like the Victorian regime, the offshore petroleum safety
case regime, largely administered by NOPSA, has detailed regulations
and an extensive set of guidelines about how these regulatory
requirements can be met. Moreover, NOPSA states in its Strategic Plan
that safety cases will be checked to ensure that they are consistent
with ``good oil field practice.''
\19\ They base their discussion on the Queensland Coal Mining
Safety and Health Act of 1999, which defines a principal hazard as one
with the potential to cause multiple fatalities and requires mine
operators to develop individual principle hazard management plans for
each such hazard.
\20\ Hopkins & Wilkinson supra, note 1, at 5.
\21\ Id.
\22\ Id.
\23\ Id. at 5-6.
\24\ Id. at 6.
\25\ Id.
\26\ Id.
\27\ Id.
\28\ Id.
\29\ Id.
\30\ The authors find evidence for this observation in the British
rail system's safety case regime. The U.K government's administration
of the rail safety case regime sought to minimize the role of the
inspectors' approval of safety cases and catastrophic train accidents
followed. They assert that this result is ``a graphic example of what
can happen if such a regime is introduced without the other requisite
features of good safety case regimes, namely a regulator with the
capacity to professionally challenge safety cases, a workforce which is
sufficiently empowered to play an active part in the process and
finally, a belief at the working level in both the regulated and
regulator that the safety case is a beneficial approach.''
\31\ Id. Such criticism includes the accusation that complex risk
assessment methodologies (particularly where quantification is
involved) can be difficult to understand and therefore unreliable and
that the results of quantitative risk assessments can be ``massaged''
to reduce risk to an acceptable level.
\32\ Id.
\33\ Id. at 30.
\34\ Id. at 8-9.
\35\ Id. at 8.
\36\ Id.
\37\ Id. The authors stress that ``best practice auditing by
inspectors is not just passive compliance monitoring; it involves
challenge. * * * Best practice inspectors are engaged not only in
compliance monitoring; they are also investigators. We are talking here
of proactive investigation, not just reactive investigation which
follows an accident or so called `near miss.' ''
\38\ Id.
\39\ Id.
\40\ Id.
\41\ Id. at 9-24. Although there are 33 principles set forth in the
paper, only those that are relevant to our inquiry here are included in
the text.
\42\ Id. at 10.
\43\ Id.
\44\ Id.
\45\ Id. at 11.
\46\ Id. at 11-12.
\47\ Id. at 11-12. Safety case regimes in process industries in
Australia often make use of quantitative risk assessment, but the
authors did not think this may not be appropriate in mineral extraction
operations but did not elaborate as to why.
\48\ Id. at 12. The authors suggest that employees should have the
right to raise problems about a safety case which become apparent after
it has been accepted and to call inspectors to examine issues which
arise if necessary.
\49\ Id.
\50\ Id. at 12-13. The authors suggest that tier-training will be
necessary, with the level of training determined by job requirements.
Workers will also need intensive training in risk-management principles
and the safety case should include a provision for such training.
Finally, training will also be required for managers.
\51\ Id. at 13.
\52\ Id. at 13-14.The authors notes that the UK has adopted a
single safety Act covering all UK industry.
\53\ Id. at 14.The authors recognize that ``the importance of
persona liability is that it directly affects the motivations of
decision makers who are responsible for creating the risks, in a way
that holding companies responsible fails to do.'' Hopkins & Wilkinson,
supra. note 1 at 14. The authors also recognize that some jurisdictions
provide third parties with a right to prosecute when the regulatory
agency does not. This appears to be similar to our citizen suit
provisions under SMCRA.
\54\ Id. at 14-15.
\55\ Id. at 15-16.
\56\ Id. at 16.
\57\ Id. at 16-18.
\58\ Id. at 18.
\59\ Id. at 18.
\60\ Id. at 18-19.
\61\ Id. at 19.
\62\ Id. at 19. See, http://www.atsb.gov.au/publications/
investigation--reports/investigation--reports.aspx.
\63\ Id. at 20-21.
\64\ Id. at 21.
\65\ Id. at 22.
\66\ Id. at 21-22.
\67\ Id. at 22.
\68\ Id. at 22-23.
\69\ Id. at 23.
\70\ Id. at 24.
______
[Internet address to the Aracoma Alma Mine Report follows:]
http://www.wju.edu/aracoma/AracomaAlmaMineReport--November2006.pdf
______
[Internet address to the Sago Mine Disaster Report
follows:]
http://www.wju.edu/sago/SagoMineDisasterReport--July2006.pdf
______
[Whereupon, at 1:24 p.m., the committee was adjourned.]