[Senate Hearing 110-137]
[From the U.S. Government Publishing Office]
S. Hrg. 110-137
PROMISES OR PROGRESS:
THE MINER ACT ONE YEAR LATER
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE PROGRESS OF THE MINE IMPROVEMENT AND NEW EMERGENCY
RESPONSE ACT
__________
MAY 22, 2007
__________
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Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
Subcommittee on Employment and Workplace Safety
PATTY MURRAY, Washington, Chairman
CHRISTOPHER J. DODD, Connecticut JOHNNY ISAKSON, Georgia
TOM HARKIN, Iowa RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York PAT ROBERTS, Kansas
BARACK OBAMA, Illinois WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
EDWARD M. KENNEDY, Massachusetts MICHAEL B. ENZI, Wyoming (ex
(ex officio) officio)
William Kamela, Staff Director
Glee Smith, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, MAY 22, 2007
Page
Murray, Hon. Patty, Chairman, Subcommittee on Employment and
Workplace Safety, opening statement............................ 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
opening statement.............................................. 3
Kohler, Jeffrey, Ph.D., Associate Director for Mining, National
Institute for Occupational Safety and Health, Pittsburgh,
Pennsylvania................................................... 4
Prepared statement........................................... 6
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio,
statement...................................................... 15
O'Dell, Dennis, Administrator, Department of Health and Safety,
United Mine Workers of America, Fairfax, Virginia.............. 21
Prepared statement........................................... 24
Bessinger, S.L., Ph.D., P.E., Engineering Manager, BHP Billiton,
San Juan Coal Company, Waterflow, New Mexico................... 29
Prepared statement........................................... 30
Watzman, Bruce, Vice President, Safety, Health & Human Resources,
National Mining Association, Washington, DC.................... 37
Prepared statement........................................... 38
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Enzi, Hon. Michael B., a U.S. Senator from the State of
Wyoming, prepared statement................................ 47
Letter to Senator Byrd from Richard E. Stickler.............. 49
Letter to Senator Murray from S.L. Bessinger................. 55
(iii)
PROMISES OR PROGRESS:
THE MINER ACT ONE YEAR LATER
----------
TUESDAY, MAY 22, 2007
U.S. Senate,
Subcommittee on Employment and Workplace Safety,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:01 a.m. in
Room SD-628, Dirksen Senate Office Building. Hon. Patty Murray,
chairman of the subcommittee, presiding.
Present: Senators Murray, Brown, and Isakson.
Also Present: Senator Rockefeller IV.
Opening Statement of Senator Murray
Senator Murray. This subcommittee will come to order. I
want to welcome our witnesses and all of our guests today.
As a country, we have a responsibility to protect the
health and safety of Americans on the job. Last year, after the
horrible mine accidents in West Virginia, Congress stepped
forward and passed the MINER Act--the most comprehensive mine
safety reforms in a generation.
I was pleased to work on that bill with Senators Kennedy,
Byrd, Rockefeller, Enzi, and Isakson. We held hearings, we
heard from the experts, and we created a comprehensive system
to address glaring holes in the safety net that miners rely on.
The MINER Act mandates comprehensive emergency response
plans, evacuation plans, post-accident communications,
breathing air, training and coordination with local emergency
responders. The MINER Act also requires flame-resistant
lifelines, state-of-the-art two-way wireless communications,
electronic tracking systems, more training for miners and
safety inspectors, and higher penalties for safety violations.
Since our law was signed, it has been up to the Bush
administration, and specifically the Mine Safety and Health
Administration to aggressively implement the law. Things didn't
get off to a promising start--instead of nominating a safety
leader to run MSHA, the Bush administration chose a status quo
mining official. In the weeks before we passed the MINER Act,
Richard E. Stickler told me that he could not name a single
reform that was needed. Congress and the rest of the country
saw things differently.
I voted against Mr. Stickler's confirmation, because his
background and his answers didn't demonstrate to me that he
recognized the urgent need to fully and aggressively implement
the MINER Act.
Today, as we approach the first anniversary of the passage
of the MINER Act, this subcommittee is doing its job of
oversight. The question is, is MSHA doing its job to protect
America's miners?
So far, I am concerned that the slow pace of reform is
leaving America's miners at risk. We've made progress. But MSHA
has not moved aggressively to implement all of the provisions
of the MINER Act. I want to share a few examples.
We required more rescue teams. Today, we don't have them.
We required mines to have emergency response plans. Most mines
have yet to finish them. We called for new technical
improvements, reliable communications, and refuge chambers.
Those improvements are still sitting on the drawing board. We
required mines to install oxygen supplies. In some cases, MSHA
told mine owners they're in compliance just for ordering the
equipment, but MSHA has not yet pushed to have those oxygen
supplies installed.
A rescue team that doesn't exist, an emergency plan that is
incomplete, a radio that doesn't work, an oxygen supply that is
not available, and a shelter that has not been built, will not
protect miners when the next disaster strikes. We cannot wait
for the next disaster. We need those safety components in place
today.
With the MINER Act, Congress gave the Bush administration
the tools to keep America's miners safe. Nearly 1 year later,
the Bush administration has done too little, and moved too
slowly. I am unwilling to let that situation continue.
We are going to hold MSHA and mine owners accountable, and
we're not stopping just with the MINER Act. I'm working with
Senators Kennedy, Byrd, and Rockefeller to draft new
legislation we hope will further improve mine safety. Advances
like proximity detectors, improved recordkeeping, and updated
asbestos standards for mines.
The MINER Act is an important tool to protect workers. But
it needs to be enforced if we're going to make progress. As we
examine what other countries, like Australia and Canada, have
done to protect their miners, there is certainly room for real
improvements in the health and safety protections for American
workers. We must build on the MINER Act promises, and speed its
implementation. We know that research, like the research that's
being conducted by NIOSH Spokane Research Laboratory in my home
State of Washington, is identifying new ways for us to
understand the risks of mining, and how to better protect our
workers.
I remain committed to giving America's miners a workplace
that is safe, and I want to thank our witnesses for being here
today to share their expertise.
This morning we will hear from Dr. Jeffrey Kohler with
NIOSH, Dennis O'Dell from the United Mine Workers of America,
Mr. Steve Bessinger from the San Juan Coal Company, and Bruce
Watzman from the National Mining Association. We look forward
to all of your testimony.
And I will now turn to Senator Isakson for his opening
statement, and thank him for his continued work on this
critical issue.
Opening Statement of Senator Isakson
Senator Isakson. Thank you, Chairman Murray.
A year ago I boarded a plane with Senator Rockefeller,
Senator Kennedy, and Senator Enzi, and we flew to West Virginia
and to the site of the Sago Mine disaster shortly after it took
place.
That afternoon, we met with the families of the miners that
were lost, and in particular, I had a brief--but significant--
encounter with the family of George ``Junior'' Hamner. His
daughter, then 22, gave me a picture of Junior that was just
taken right after Christmas when he'd gotten a six-point buck
in the mountains of West Virginia. That picture remains in my
office with me today, and will stay with me, always, because
it's a reminder to me of why we are really here.
I was very pleased to be one of the co-authors of the MINER
Act, along with Senator Murray, Senator Rockefeller, Senator
Byrd, Senator Enzi, and Senator Kennedy. And, I'm also quite
pleased with a lot of the progress that has been made since
that time.
You know, one thing that needs to be understood--I ran a
company for 33 years. The safety of my workers was the most
important thing to me. My assets had two legs, and I didn't
want a single one of those legs getting broken, a single one of
those people getting hurt. And, I'm impressed with what the
mine industry has begun doing in many areas to respond to the
MINER Act.
In particular, in the year since that incident took place,
and later, the passage of the MINER Act, 86,000 new self-
contained, self-rescuers are in place, and 100,000 additional
units are to be added. Fifty-five thousand underground coal
miners have all gone through training and quarterly review on
the use of the equipment, and fifty-five thousand underground
coal miners have received training on evacuation procedures.
All mines have submitted plans to provide post-accident
breathable air to miners awaiting rescue, and 36 new
underground coal mine rescue teams have either been added, or
are in the place of being formed and trained. Those are
positive steps forward to meet the absolute safety needs that
we need to find.
I also was pleased last year to conduct, along with Senator
Murray, an intensive roundtable, where we had folks from
Australia, and Canada and around the world, looking at the new
technologies in terms of trying to have two-way communications
with miners underground, and additional enhanced communication
with miners underground.
I am looking forward today to hearing the progress of some
of that research, as I'm looking forward to getting a report
from Australia in the not-too-distant future about some
progress they have made in some of their underground
communications.
The most important thing of this subcommittee is the
occupational safety, health and welfare of the employees, which
is equally the most important thing for the employer, because
without the employees, employers have nothing. Working
together, there's not a problem we can't solve, and with
American innovation, and with the pressure from this committee,
to continue to press forward on safety, I am confident we can
continue to improve on the passage of the legislation last
year, and build on more safety in the future for the miners of
America.
And, I thank the distinguished Chair.
Senator Murray. Thank you, Senator Isakson.
Before we begin, I do want to advise all of our witnesses
that your entire statements will be included in this
committee's records. In order to allow all of our members
adequate time to ask questions, I would ask that you keep your
oral statements to 5 minutes.
We are now going to turn to our first witness from the
first panel, Dr. Jeffrey Kohler. He is the Associate Director
for Mining at the National Institute for Occupational Safety
and Health. Dr. Kohler is responsible for NIOSH's research
portfolio in mining and construction, and is the past Director
of the Pittsburgh Research Laboratory. He's also been a member
of the mining engineering faculty at Penn State University.
Dr. Kohler, we welcome you, and look forward to your
testimony.
STATEMENT OF JEFFREY KOHLER, PH.D., ASSOCIATE DIRECTOR FOR
MINING, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH,
PITTSBURGH, PENNSYLVANIA
Mr. Kohler. Thank you, and good morning, Madame Chair, and
members of the committee.
My name is Jeffrey Kohler, and I am the Associate Director
for Mining and Construction, Health and Safety Research at
NIOSH. I am pleased to provide a progress report on our
activities related to the MINER Act, and to highlight
opportunities to further enhance mine safety and health.
NIOSH is conducting research on refuge alternatives,
including their use in a comprehensive escape and rescue
approach. We are addressing training, maintenance and section
issues associated with chamber use, and developing test
protocols.
NIOSH recently completed a report entitled, ``Explosion
Pressure Design Criteria'' for new seals in U.S. coal mines,
and we are working in partnership with MSHA, labor and industry
to develop practices and technologies that will address
existing mine seals.
The emergency supplemental appropriations 2006, provided
$10 million to NIOSH, and these funds are expediting the
movement of critical oxygen supply, communications, tracking
and refuse technologies into the mining marketplace. I'd like
to highlight three examples.
First, a more survivable leaky feeder communication system
is being developed, and will be deployed in the Loveridge Mine
in West Virginia within the next 9 months. And within the next
week, a partial system will be installed there for testing
purposes. This system will improve wireless emergency
communications, and will provide the backbone for significant,
improved functionality in the future.
Second, we are working with researchers at Fort Monmouth to
adapt a military communication system. This Kutta System will
work with leaky feeders, and will also function at medium
frequency, so that if the leaky feeder is compromised in an
explosion, communications will be maintained.
Third, we are developing a next generation SCSR, which will
have a docking capability. We hope to further improve this next
generation SCSR, with a full-face mask capability.
We must push the envelope to improve mine worker safety on
a continuing and long-term basis. The contracts and grant
program, and the inter-agency working group--both mandated in
the act--will be very helpful in this regard. NIOSH has
established a competitive grant and contract program to
encourage development, manufacture and performance testing of
mine safety technologies. Already, proposals have been
submitted to advance mine seal reinforcement, wireless
communications, and other technologies.
NIOSH has been working with other Federal agencies to
address mining's technology needs, and our inter-agency working
group will provide a more formal mechanism to transfer
technologies among Federal agencies.
NIOSH is expanding its emphasis on safety technologies, and
I'd like to mention two that have come to completion recently:
the coal dust explosability meter, and the Personal Dust
Monitor.
Today, determining a sufficient rock dust has been used to
prevent a coal dust explosion requires taking a sample, sending
it to a lab, and then waiting several days for the results. The
coal dust explosability meter, developed by NIOSH researchers,
and jointly tested by NIOSH and MSHA, will allow an immediate
determination.
The Personal Dust Monitor, or PDM, provides the miners
respirable dust exposure in real time, allowing immediate
action to prevent exposures that could lead to Black Lung
Disease. An exhaustive laboratory and in-mine testing program
was recently completed, and the results demonstrated that the
PDM is superior to the existing technology used to determine a
miner's exposure to respirable coal dust.
The implementation of the MINER Act of 2006 will drive
significant improvements to mine safety, and especially in
practices related to disaster response. However, we should not
miss the opportunity to shift the focus to the prevention of
disasters, injuries, and occupational illnesses.
Some mines are already making important progress in this
direction, and the entire mining industry should adopt a
culture of prevention. One of several steps in this direction
is the use of risk analysis and management.
A regulatory structure is a prerequisite to the success of
a risk-based approach. However, compliance with regulations
alone may be insufficient to achieve the goal of zero harm.
Thus, the opportunity is to build on the existing regulatory
structure, utilizing risk-based approaches.
In closing, NIOSH continues to work diligently to protect
America's mine workers, and our research activities will enable
NIOSH--together with MSHA, labor and industry, to better
protect mine workers.
Thank you, Madame Chair, and I would be pleased to answer
any questions.
[The prepared statement of Dr. Kohler follows:]
Prepared Statement of Jeffery L. Kohler, Ph.D.
INTRODUCTION
Good morning Madam Chair and other distinguished members of the
subcommittee. My name is Jeffery Kohler, and I am the Associate
Director for Mining and Construction Safety and Health Research at the
National Institute for Occupational Safety and Health (NIOSH), which is
part of the Centers for Disease Control and Prevention (CDC), within
the Department of Health and Human Services. I am pleased to be here
today to provide an update on our recent mine safety activities, a
progress report on activities that have been initiated under the Mine
Improvement and New Emergency Response Act of 2006 (MINER Act), and
outline opportunities to further enhance mine safety and health.
The United States is fortunate to have an abundance of mineral
resources to power the economy, and the highly skilled men and women
who work in the mining industry every day are our most precious
resource. Mine safety has improved significantly over the years, and
2005 was the best year on record. Yet, the mine disasters in 2006 and
the double fatalities in a Maryland surface coal mine last month serve
as painful reminders of the dangers inherent to this industry and our
shared responsibilities to help ensure the safety and health of our
mine workers.
NIOSH works to eliminate occupational illnesses, injuries, and
fatalities through its research and prevention activities. Mining
researchers at our Pittsburgh, Spokane, and Lake Lynn Laboratories have
a long and successful history of working in partnership with labor,
industry, and State and Federal agencies to develop and implement
interventions that eliminate or control mining safety hazards or reduce
exposure to harmful physical and chemical agents. The work of NIOSH
scientists and engineers can be found throughout American mines. This
is evidenced by safer design practices, equipment innovations that
improve safety or health, technology to improve mine rescue, and
improved training programs for miners. Over the years, significant
safety and health gains have been achieved through the collective
efforts of labor, industry, and government. Yet, more remains to be
done, and additional effort will be required just to maintain the
historical gains, as changing mining conditions present new safety and
health challenges. Our program of mining safety and health research is
driven by a strategic plan with specific performance goals. Our plan,
developed with extensive customer and stakeholder input, identifies
critical needs in mining safety and health knowledge and practices, and
establishes research priorities for addressing those needs.
RECENT MINE SAFETY ACTIVITIES
NIOSH's mining research priorities address disaster prevention and
response, traumatic injuries, cumulative trauma disorders, respiratory
diseases, and hearing loss. The following three examples illustrate
progress in these areas.
Personal Dust Monitor
NIOSH researchers, working in partnership with the Mine Safety and
Health Administration (MSHA), labor and industry, and through a
research contract to employ novel technology, successfully miniaturized
a mass sensor that enabled a person-wearable dust monitor (PDM) to be
built into a miner's cap lamp. An exhaustive laboratory and in-mine
testing program was completed in the summer of 2006. Some additional
issues related to the accuracy and operation of the PDM were raised in
the fall of 2006. Each of these was researched, and the potential
concerns were found to be inconsequential. The results demonstrated
that the PDM is superior to the existing technology used to determine a
miner's exposure to respirable coal dust. It is accurate, precise,
durable, and empowers miners and mine management with real-time dust-
exposure data. Access to real-time data allows for the prevention of
overexposures that lead to the development of Coal Workers'
Pneumoconiosis (commonly referred to as ``Black Lung'' disease).
Current technology does not provide this key information until days or
weeks after the exposure has occurred.
Coal Dust Explosibility Meter
Rock dust is applied to coal mine surfaces to prevent coal dust
explosions, and if sufficient dust is applied, an inert mixture between
the two dusts is achieved. The percentage of inert material in the
mixture is specified by current regulation. However, a determination of
this percentage by an MSHA inspector or mine operator requires taking a
sample and sending it to a distant lab for analysis, which can take
several days. The coal dust explosibility meter developed by NIOSH and
jointly tested by NIOSH and MSHA researchers will allow an immediate or
real-time determination by mine operators, or MSHA inspectors, of
whether an inert ratio has been achieved. A pre-production model is
currently undergoing approval testing at MSHA, and commercial
production of this lifesaving, new technology will begin as soon as it
is approved for use in underground coal mines. NIOSH received the
Research & Development 100 Award of 2006, recognizing the coal dust
explosibility meter, as one of the top technological innovations of the
year.
Diesel DPM Workshop
NIOSH research benefits mineworkers most when it is adopted into
practice at the mines so nearly every NIOSH project draws on the
institute's Research to Practice initiative, which focuses on
transferring and translating research findings, technologies, and
information into highly effective prevention practices and products
which are adopted in the workplace. In the fall of 2006, the Nevada
Mining Association asked NIOSH to put together a workshop focusing on
practical methods and technologies for the control of diesel
particulate matter from mining equipment used in underground mines.
NIOSH assembled a team of technical experts from its labs, the mines,
and MSHA, and then developed and conducted a training session entitled
``DPM Workshop--A Practical Workshop on Strategies and Technologies to
Reduce Miners Exposures to Diesel Particulate Matter and Gases'' in
Reno, NV, in January 2007. Attended by over 175 participants, this was
so successful and well received that a second DPM Workshop will be
conducted in June in conjunction with the annual Elko Mine Exposition.
Similar workshops are being planned in the East to accommodate requests
from the coal and stone industries.
PROGRESS UPDATE ON NIOSH MINER ACT ACTIVITIES
NIOSH is also making progress in mine safety through the MINER Act.
This bipartisan legislation has created an unprecedented environment of
partnership among labor, industry, and government. The MINER Act
mandates an increased focus on technology development, testing and
evaluation to expand the available technologies for disaster prevention
and response. As mandated, NIOSH is going through the process required
to formally establish the Office of Mine Safety and Health. In the
meantime, under my lead as Associate Director, NIOSH continues to
coordinate mine safety and health work that occurs across multiple
parts of the agency. In addition, NIOSH has established an interagency
working group to provide a formal means of sharing technology that
would have application to mine safety. The working group currently
includes representatives from NIOSH, MSHA, the National Aeronautics and
Space Administration (NASA), and a number of research labs or offices
from within the Departments of Defense, Energy and Homeland Security.
The MINER Act directs NIOSH to establish a competitive grant and
contract program to encourage development, manufacture, performance
testing, or investigation of related issues for new mine safety
technologies and equipment. We believe that this can be a powerful
vehicle for bringing technology to bear on the solution of mining
safety and health problems. The contracts portion of this new program
was announced on March 2007, and it will remain open until September
2008. This offering will provide funds to conduct research, exploratory
development, testing, or evaluations of new technologies to improve
mine safety, or to adapt technologies from other industries, that could
result in improved safety for mine workers (additional details are
available at: www.cdc.gov/niosh/mining). We have received proposals for
innovations in reinforcing existing mine seals, communications and
tracking, and fire suppression technologies, and we are encouraged by
the quality of the responses over the short period that the
announcement has been open.
The MINER Act also assigns responsibility to NIOSH to conduct
research and field tests concerning the utility, practicality,
survivability, and cost of various refuge alternatives. Our report will
be submitted by December 2007. NIOSH staff began work in this area
shortly after the passage of the act. Significant progress has been
made to date. We have examined the use of refuge alternatives in other
countries, collected information on practices and regulations, and
established refuge chamber collaborations with researchers in Australia
and South Africa. NIOSH has collected information, through a contract
with the National Technology Transfer Center, on all refuge chamber
applications in the United States, and we have formulated concepts for
using refuge alternatives in escape and rescue strategies. NIOSH is
also addressing the broader training, maintenance, and inspection
issues associated with chamber use, as well as developing protocols for
the testing of chambers.
The MINER Act directs MSHA to finalize new standards for the
sealing of abandoned areas in underground coal mines. NIOSH initiated
an intensive effort to develop an engineering-science basis for MSHA to
use in its development of improved safety standards for sealing of
abandoned areas. This effort culminated last week with the release of
NIOSH's report on ``Explosion Pressure Design Criteria for New Seals in
U.S. Coal Mines.'' We are working closely with MSHA, labor, and
industry to resolve technical issues related to improving the safety
associated with existing mine seals.
NEW INNOVATIONS--MINER ACT OF 2006 AND SUPPLEMENTAL APPROPRIATION
Moving critical safety technologies, for example oxygen supply,
emergency communications, and miner tracking, from the laboratory into
the mine is a high priority for NIOSH, as is adapting technologies from
other military or civilian applications to the mining industry's needs.
The Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Hurricane Recovery, 2006 (P.L. 109-234) provided a
$10 million Emergency Supplemental Appropriation (ESA), that will have
a very positive effect in increasing the availability of critical
oxygen supply, communication and tracking technologies. The goal is to
facilitate the adaptation and movement of these technologies from other
industries or from prototype stage to commercialization and into the
mines, as rapidly as possible, and this is well underway.
Progress towards this goal has been expedited through a structured
approach to the challenge. First, NIOSH developed a high-level ``road
map'' for success, taking into consideration, the availability of
technologies, commercial availability of equipment, as well as the
technical and logistical difficulties in meeting the schedule and
performance expectations of the MINER Act. NIOSH determined that the
plan should include improvements to legacy systems as well as the
introduction of new technologies. We believed that it was essential to
begin with an accurate assessment of the existing technology base in
order to set off on a path toward success. The initial challenge for
NIOSH was to invest sufficient time in the early analysis to ensure
that the contract efforts are in the areas most likely to yield results
so that we can help move new technologies into the mines as
expeditiously as possible.
Our effort to quickly award the right mix of contracts consisted of
two phases: the technical preparation phase and the contract
acquisition phase. The technical phase consisted of significant
engineering-science work to develop the scope of work for the
contracts, testing of system prototypes in operating coal mines and at
NIOSH's Lake Lynn Experimental Mine, and evaluation of claims from
vendors on technologies that were represented as ``solutions'' for the
mining industry. Stakeholder meetings including the NIOSH Emergency
Communications Partnership were held periodically as well. NIOSH also
met with Australian labor, industry, and government officials to review
findings and the proposed approach, as well as other alternatives.
Within 3 months after the emergency supplemental appropriation (ESA)
was approved, a consensus was reached among all groups that NIOSH's
plan for the available funds was appropriately focused on the
following: targeting a balanced set of technologies that address the
mining community's needs in the critical gap areas; selecting
technology subsets that have a higher probability of success in the
short term; and meeting the goal of the emergency supplemental
appropriation.
The technical preparation phase defined the scope of work and has
helped to ensure that the most promising and critical technologies are
being supported under the ESA. In the contract acquisition phase, the
statement of work for each technology area was developed and contract
solicitations were advertised for the purchase of services that will
lead to development and demonstration of new technologies to meet the
intent of the MINER Act. The ESA is subject to the rules and
regulations for full and open competition as prescribed by the Federal
Acquisition Regulations. The acquisition phase culminates in contract
award, and all contracts have either been awarded or are anticipated to
be awarded within the next month.
Table 1 displays the various communication and tracking technology
solicitation areas NIOSH is actively pursuing, and the respective
anticipated award and completion dates.
Table 1.--Communication & Tracking Procurements
----------------------------------------------------------------------------------------------------------------
Technical Phase Projected Completion
Solicitation Completion Date Award Status Date
----------------------------------------------------------------------------------------------------------------
Adaptation of the U.S. Army ``Kutta'' August 2006............ Awarded January 2007... April 2008
System.
Survivable Leaky Feeder.............. August 2006............ Awarded March 2007..... August 2008
Hardened Mesh/Node System............ September 2006......... Anticipated May 2007... September 2008
Communications Guidelines............ November 2006.......... Anticipated May 2007... March 2008
Tracking System...................... December 2006.......... Anticipated June 2007.. December 2006
----------------------------------------------------------------------------------------------------------------
The projected completion dates are based on historical estimates
and projections, and are directly dependent on the anticipated award
dates being met. It should be noted that a number of factors may affect
award dates and therefore project completion, such as the number of
bidders, the extent of technical clarification or budget clarification
meetings necessary, the complexity of the negotiated changes, and the
time allotted to prepare best and final offers.
For oxygen supplies and refuge chambers, Table 2 displays the
various solicitation areas NIOSH is actively pursuing, and the
respective actual or anticipated award dates. As indicated in the
table, the initial technology survey contract work has been completed.
Table 2.--Oxygen Supplies and Refuge Chambers
----------------------------------------------------------------------------------------------------------------
Technical Completion Projected Completion
Solicitation Date Award Status Date
----------------------------------------------------------------------------------------------------------------
Refuge Chambers Survey............... July 2006.............. Awarded September 2006. Completed
Hybrid SCSR.......................... August 2006............ Awarded February 2007.. August 2008
Dockable SCSR........................ August 2006............ Awarded February 2007.. August 2008
Refuge Chamber/Trapped Miner October 2006........... Awarded November 2006.. Completed
Location--Preliminary Study.
Refuge Alternatives.................. December 2006.......... Awarded April 2007..... November 2008
----------------------------------------------------------------------------------------------------------------
Technology Availability and Progress Summary
The products resulting from NIOSH development efforts are expected
to become available in 2007 and continue into 2008 and beyond. These
solutions are focused on providing the best approaches to meet the
challenges that the MINER Act aims to address.
In order to move forward with our work under the act and the
Emergency Supplemental Appropriation, NIOSH has developed a
communications systems ``road map,'' which defines specific
requirements based on a set of assumptions. This ``road map'' describes
available communications technologies today and outlines viable
technical options for upgrading those investments to provide even
greater functionality during post-accident scenarios as the new
technologies come online.
next steps to continue enhancing mine safety and health
The implementation of the MINER Act of 2006 will drive significant
improvements to mine safety, especially in practices related to
disaster response. An important opportunity exists today to shift the
focus to prevention--of explosions, fires, inundations, injuries, and
occupational illnesses. I will use two examples here to illustrate next
steps: a change of approach using real-time dosimetry to eliminate
Black Lung disease; and the broad-based approach of risk analysis and
management as a vehicle to reduce harm.
Black Lung disease continues to be a serious problem. Despite the
progress that has been made, and the declining number of cases, between
2000-2004 more than 4,100 men and women died from this debilitating
lung disease. While the dust exposures leading to Black Lung can take
years or even decades to produce their deadly results, we think it is
time to take a different approach. Technological advancements are
making possible real-time dosimetry. The Personal Dust Monitor (PDM),
which I described earlier, makes it possible to measure dust exposure
in real time, rather than waiting a week or more for the lab results of
the current sampler. NIOSH is studying how miners use the PDM, and we
have seen respirable dust exposure reductions of 50 percent over a
several week period, as the face crews have acted on the information
available from the PDM. The PDM would allow exposures to be
automatically downloaded to a database for every working shift. Such
data would be invaluable to lower exposures and to assure that
exposures remain low on every shift. Thermo Fisher Scientific
Corporation, (Franklin, MA) recently bought the rights to the PDM and
is poised to begin commercial production of the device. The company
estimates availability of PDMs within 4-6 months after the completion
of all rulemaking.
The concept of ``zero harm'' has developed over the years and has
the objective of reaching a point where there are zero fatalities and
serious injuries. This concept was applied in the Australian mining
industry over a decade ago after the Moura Mine disaster, and we could
benefit from applying those lessons in the U.S. mining industry today.
In Australia, they began the transition from a compliance-based system
to a more proactive risk-based system. This was highlighted in the
report of the Mine Safety Technology and Training Commission published
in December 2006, in which that tripartite commission clearly stated
the necessity of establishing an objective of zero fatalities and
serious injuries, and laid out a path to its achievement. While the
``path'' is articulated in 75 recommendations, its vision really
reduces to creating and enabling a culture of prevention. An important
foundation for a culture of prevention is risk analysis and management.
Risk analysis and management is practiced to some extent at many mines,
and in some mines it is a fairly formal and well-developed process.
However, the opportunity exists for it to be practiced at every mine.
The existence of a regulatory structure and enforcement of
regulations are prerequisites to the success of the risk-based
approach. However, compliance with regulations alone will be
insufficient to achieve the goal of zero harm. Thus, the opportunity is
to complement the existing regulatory structure with a risk-based
approach to improving safety and health. It took the Australians a
decade to develop the robust structure that we see today, but we need
to make a start in this country.
We have developed a project at NIOSH to begin an industry-wide
process. Initially, we are focusing on major or catastrophic hazards,
such as explosions, fires, and inundations. We have conducted
workshops, with the help of Australian experts, and we have worked with
labor and management at nine mines, five in underground coal and four
in underground metal/nonmetal, to conduct major hazard-risk analysis
and management planning. These case studies are being used to prepare
workbooks and templates for application by other mines. Additional case
studies and workshops are in process. This will be followed by a
national effort to educate and train the industry to utilize this
powerful tool.
CONCLUSION
In closing, NIOSH continues to work diligently to protect the
safety and health of mineworkers. The MINER Act and supplemental
funding for mining research are enabling us to make significant
improvements in the areas of communication and tracking, oxygen supply,
and refuge alternatives. Moreover, our safety and health research
program is addressing the critical areas identified by our customers
and stakeholders, and through our research, development, demonstration,
and diffusion activities, we are enabling a shift to a prospective harm
reduction culture in the mining. I appreciate the opportunity to
present our work to you and thank you for your continued support. I am
pleased to answer any questions you may have.
Senator Murray. Thank you very much, Dr. Kohler.
We have been joined by a special guest to our subcommittee
today, who has a special interest and passion on this issue.
Senator Rockefeller, thank you for coming today, would you
like to make any opening statements?
Senator Rockefeller. No. Thank you.
Senator Murray. Thank you. We'll turn to you for questions
in just a few minutes, but we do welcome you to our
subcommittee today.
Dr. Kohler, I understand that NIOSH has been working on
testing airtight emergency shelters for use underground, and
that the State of West Virginia has actually moved ahead and
improved shelters for use in their mines. We know that other
countries have already put these refuge chambers to use, and we
know today that one of the real risks to our miners is their
inability to survive for periods of time without clean air and
other critical supplies. Can you share with this subcommittee
what is the status of NIOSH's activities in this area?
Mr. Kohler. Sure. As part of our comprehensive research and
testing program for refuge shelters to prepare the report that
we'll be delivering to Congress this December, we're looking at
a wide range of refuge alternatives, including refuge chambers,
and including other alternatives in training, testing,
maintenance, and so forth.
We have agreed to assist the State of West Virginia to
perform some testing on some of their chambers. If you compare
the current alternative, which is to barricade--you know, use
some lumber and some plastic sheeting and some nails--the use
of chambers is a far sophisticated and much better solution.
While it's true that today we don't know, perhaps, every
single thing we'd like to know about chambers, it's our belief
that the State of West Virginia has really identified the
critical parameters identifying those chambers, and we would
not expect that any of our work would significantly change what
the State of West Virginia has done.
Senator Murray. What has caused the delay in the
implementation of the recommended use of refuge chambers in
coal mines?
Mr. Kohler. You mean that was in the original 1969 Act?
Senator Murray. Correct.
Mr. Kohler. That actually pre-dates my time. When I was a
mining engineering student in the early 1970's, my professors
told me that refuge was a concept that people had put aside,
that they were more interested in evolving escape technologies.
And, for the 30 years beyond that, there was little action in
this country on refuge chambers.
Senator Murray. Why haven't you moved forward on a
recommendation to implement?
Mr. Kohler. We're moving with great dispatch to remove any
technical barriers, or fill any knowledge gaps, so that refuge
chambers can be used as soon as possible, and we fully support
the State of West Virginia's plan to move forward.
Senator Murray. How long before you expect that
recommendation to come forward?
Mr. Kohler. The final report? Well, our final report, we
won't have everything finished until late this fall. I don't
think that is going to significantly change what the State of
West Virginia wants to do this summer.
Senator Murray. Because I'm keeping that in mind, in terms
of other mines.
Mr. Kohler. In other mines? I see no barriers there. I
mean, there's some risk in moving forward without completely
knowing all of the information, but I think Mr. Rahall said it
very well at the hearing last week. He said,
``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.''
And, I think that there's no excuse for delay and inaction
in moving forward with the use of the refuge chambers, but also
with the understanding that there's additional things that we
will learn, and we can refine that process as we go down the
road, and we can open up, maybe, more refuge alternatives as
well.
Senator Murray. As you know, I am very concerned about the
use of asbestos in the United States, and the plight of
thousands of victims of asbestos-related exposure on the job.
It really troubles me that MSHA has delayed its rulemaking on
reducing the allowable limit for asbestos exposure in mines.
Miners, as you know, are very vulnerable to asbestos disease,
as other workers are, and they really deserve the protection of
law. Can you share with this committee what research NIOSH has
done to help us move to better controlling asbestos exposure in
mines?
Mr. Kohler. NOISH has really done a significant amount of
research to try and identify the asbestos problem. Recently,
they published an Asbestos Road Map, which identifies the
remaining science issues that need to be addressed, and it has
proposed a research plan to complete all of that work.
Senator Murray. What are the next steps that need to be
done?
Mr. Kohler. I think the next steps are those outlined in
the Asbestos Road Map which would include some additional
epidemiological studies, and perhaps some look at control
technologies.
Senator Murray. Thank you.
Senator Isakson.
Senator Isakson. Thank you very much, Dr. Kohler. On that
question--again, I'm not sure I know this to be true, but isn't
it true that most of the mine companies try and stay within the
coal seam to keep from getting naturally-occurring asbestos to
permeate the mine?
Mr. Kohler. That's correct. And, we do not at this time,
have any data to suggest that there is a problem with asbestos
bringing minerals in underground coal mining. I think metal,
mine metal, there are other issues.
Senator Isakson. I'm really excited because the Self-
Contained Self Rescuers in the docking system that you referred
to, I think, is a breakthrough from the hearing that we
conducted, the roundtable we conducted here last year. Would
you--for the audience's benefit, and really, I think, the
benefit of the committee--would you amplify what that actually
allows the SCSR to do?
Mr. Kohler. Yes, the SCSR has a limited capacity, perhaps
upwards of 60 minutes, and so at some point, it may be
necessary to change SCSRs. One of the more dangerous tasks in
using an SCSR is actually taking off the SCSR and donning, or
putting on, a new one. You know, the danger is that you would
accidentally take in a breath of toxic air.
The docking one allows you to put on the SCSR and then
leave it on, and then you simply snap in and snap out
cartridges.
Senator Isakson. That is a great breakthrough, and really
terrific.
The recent results announced on the Sago Mine
investigation, if I remember correctly, determined conclusively
by a demonstration done by top scientists that two lightening
strikes, four seconds apart, ended up producing an arc via an
abandoned cable underground which caused the explosion, is that
correct?
Mr. Kohler. I understand that that was their finding.
Senator Isakson. Then, just out of curiosity, that begs the
question about lightening and grounding--are the grounding, are
there capabilities around the coal mine to attract lightening,
and ground it away from conduits that otherwise it might reach?
Mr. Kohler. I think there are a couple of very important
points. One is, that we do know how to protect mines, to some
extent, from the adverse affects of a lightening strike, and we
certainly need to do all of those things, many of those things
are spelled out in the existing regulations.
Secondly, I think that we've learned from a global
experience that there appears to be a credible possibility of a
lightening strike initiating a gas explosion. And that's
something that tells us that we need to really protect our GOB
areas, our sealed areas.
Senator Isakson. Yes, because that's where that spark ended
up going in the Sago case.
To what extent is NIOSH involved in testing and improving
any underground communication devices, and in particular, are
there wireless communication devices that a miner can use post-
accident to communicate with the surface?
Mr. Kohler. We are heavily involved in the research,
development and testing, we don't certify those products, that
rests with MSHA. We're heavily involved--under our Emergency
Communication Partnership, which includes MSHA, industry and
labor and manufacturers, we have tested over 40 systems, to
date. And, I'm pleased to say that progress is being made, you
heard me say, for example, that one of the systems funded under
the emergency supplemental appropriation, a piece of that will
be installed this week and next week for testing at the
Loveridge Mine in West Virginia, the full system is expected to
be in in about 9 months.
The kind of systems that West Virginia is requiring in its
mines to go in later this year, are systems which will be more
advanced than current systems that exist in many mines. And, to
that end, that's also a good thing.
Senator Isakson. In your testimony, you made reference to
working with the U.S. military to this regard, I want to
compliment you on that, because I recall, when we had the
roundtable I've referred to before, a couple of times, that had
really not--that engagement hadn't taken place before, and I
think they have a lot of technology, both the type you can talk
about, and the type that's probably secure information. But, I
commend you for working with them on that.
As I understand it, though, there still is not a wireless
two-way communication system operating, even in Australia, is
there?
Mr. Kohler. Not with the degree of functionality that we're
all hoping for.
Senator Isakson. Well, I encourage you to continue working
with the military, I think that's the single most important
thing so that the miners have a contact, and so the mine
officials actually know where the miners are. That could have
solved a lot of problems in the Sago incident.
And, I appreciate your testimony.
Thank you, Madame Chair.
Senator Murray. Senator Rockefeller.
Senator Rockefeller. Thank you, Madame Chair.
My question will appear to be hostile, but it's not. The
NIOSH--and I remember when I was Governor going by that
building up at W View many times, and the reputation of NIOSH
then, and the reputation of NIOSH, to some degree, today is a
certain degree of separation from the realities of coal mining,
and the realities of being a producer, or a miner, because of
the fact that you are researchers, you're Ph.D.s.
And, so the immediacy of what's going on inside the mine is
in your job description, but it isn't like when there's
political pressure, in the good sense. That is, Sago happened,
and everybody went down there and all kinds of things did begin
to happen.
So, what I'm interested in, and you're talking about
philosophically, No. 1, you're under funded, MSHA is under
funded, MSHA has been--in my mind--somewhat less than
impressive, I'm not concluded yet on NIOSH. But, if you're both
under funded, which means that people are either overwhelmed,
or their job requirements are cut, it takes away some of the
sense of urgency, I would think. And, I have not necessarily
associated NIOSH--in my experience in the Governorship and the
Senate in West Virginia, with forward pushing. Forward
thinking, yes, forward pushing, no.
For example, the relationship with the State government.
Relationships with State governments are very--Governors are
very proprietary. They do what they think is the right thing to
do, or whatever, but they just do it. And NIOSH is a factor,
MSHA is a bigger factor because it's got a different kind of
clout.
But--describe to me--how would you talk about the sense of
urgency as a result of these mine disasters, and the morale and
the feeling within your community?
Mr. Kohler. Yes, thank you. I appreciate the opportunity to
change your mind about NIOSH and its sense of urgency, and the
value that it brings to the mine.
If you talk to our researchers at our Pittsburgh, Spokane
and Lake Lynn laboratories, you will find that--at least for
the past 8 or 9 years, every day, every time there's a group
meeting or whatever, the first question is, ``What have you
done for mine workers today?'' You know, we drive home the
point that, when the taxpayers send us a pot of money, they
expect value in return, they expect us to do something to
eliminate fatalities, injuries and illnesses.
So, every day we try and impress upon people that, yes,
while you do your job through research and prevention
activities, that has no meaning until you apply it to
practice----
Senator Rockefeller. Do you really start out with that
question every day?
Mr. Kohler. Every single time we're with people, we're with
managers, or employees, we always ask that question, yes.
Because, we need people to understand that the research that
they do only takes on value if it's solving real problems for
real people.
So, I think there's a very compelling sense of urgency, and
I would hope that our customers and stakeholders would be able
to shed light on how they see that from their perspective.
The disasters, last, really compounded both the problem,
and the sense of urgency. You're correct that our resources are
very thin, staffing is an issue because of retirements and the
aging workforce, morale is good, because I think people see the
purpose. They see that their work is, and can make, a
tremendous difference.
So, I would say that while we look forward to having the
mandates of the MINER Act, for example, funded, so that we can
carry them out, our ability to do good work is occurring, and
it's occurring with the resources that we've been allocated.
We've had to set priorities, but I think we've still been able
to deliver good value.
Senator Rockefeller. Thank you, Madame Chair.
Senator Murray. Senator Brown.
Statement of Senator Brown
Senator Brown. Thank you, Madame Chair.
I appreciate this hearing. Chairmen in this institution
call hearings for a whole lot of reasons, and I want to thank
Chairman Murray for the hearing she did some weeks ago on
asbestos in the tunnels around the Capitol. That hearing
absolutely will lead to a better life for those workers in the
mines, in the tunnels under the House and the Senate, and the
kind of exposure to asbestos that they've been subjected to,
and nobody cared, and she stepped up, and it really did matter.
So, thank you for that. I hope this hearing can help yield the
same kind of results.
I have, for 6 or 7 years, worn on my lapel a depiction of a
canary in a coal mine, given to me at a worker's memorial day
some 5 or 6 years ago by the steel workers, symbolizing the
progress we have made in all worker safety issues, and
environmental issues, but also indicating the progress we still
need to make. I think the legislation last year was, obviously,
a good step.
In my State, in Ohio, which is a coal State--not quite as
much as the Senators from the State of West Virginia, but
they're partly, with this legislation, partly with local
involvement, State involvement, we have made some major
progress, in the 11 underground coal mines, 4 underground,
other material mines in my State. I want to pursue just one
question, and from what Senator Isakson said about the
communications, and I know the technology is not there for what
we need for miners to be in touch with people above ground, but
could you tell us within the confines of, as far as you can go
with military issues and intelligence issues, the state of the
technology and what NIOSH is doing, and what you see others
doing to move forward on better technology issues, and
advancement?
Mr. Kohler. Yes, I think it's important we realize that
there are things that we can do today. And, if we choose those
things correctly, they will also propel us into the future.
And, I think that today, for example, we can install--either
today, or very shortly--hard-end, or more survivable leaky
feeder systems. A leaky feeder system is a hybrid system, it is
wireless part of the way, and then it relies on a hard-wired
backbone to get out of the mine. If the hard-wired backbone is
far enough from where the explosion is, it won't be
compromised. I think, in West Virginia, many of the companies
are considering that as one viable option, and that's a good
option, because it advances what we have in many mines today,
although there are some number of underground coal mines that
are already using that technology, and have been using it for
some time.
But then there's the opportunity to try and build on these
legacy systems. So, for example, the systems that would be put
into the West Virginia mine, if the Federal definition of
wireless becomes consistent with the State definition, then in
a year, 2 years, as these more advanced systems come on, they
will utilize the existing leaky feeder backbone that's already
in place.
The military system, for example, we're very excited about,
because it will work with these legacy systems, it will work
with the leaky feeder system. But, if the leaky feeder is
compromised in an explosion or a fire, without the miner ever
knowing it, the software-defined radio will switch to a medium
frequency, and medium frequency is very parasitic, it will hop
a ride on a water line, on a conveyer structure, on a wire
corridor life line, and just find its way through the mine. And
then when it gets close to the leaky feeder backbone that is
not compromised, it'll jump back onto the leaky feeder
backbone, and out of the mine. The military system will make
that possible. And I think that represents a tremendous
advance. It's not the perfect system, but it represents a
tremendous increase in the protections afforded to mine
workers.
Senator Murray. Dr. Kohler, as you know, problems with mine
seals have been determined to contribute to several of the coal
mine fatalities. I know that NIOSH drafted a report for
comments to be submitted by late March of this year, and last
Friday issued an emergency temporary standard to strengthen the
requirements for mine seals, requiring them to withstand up to
50 psi of force. Can you talk a little bit about that? And what
recommendations do you have with regard to mine seals?
Mr. Kohler. NIOSH completed its final report now, or final
draft on the mine seals--all of the original recommendations in
the draft report withstood the scrutiny of the peer review
process, although there were a number of small enhancements and
improvements made to the report. So, the report's
recommendations are as they stood originally.
You're correct, also, that MSHA has issued an emergency
temporary standard, I have not had a chance to review that
standard, so I can't comment on it.
Senator Murray. Are you continuing to explore the need to
further strengthen that standard?
Mr. Kohler. I think that we would like to look at that
standard, their ETS, and see how it compares to our
recommendations in our report.
Senator Murray. A number of recent mine fatalities have
been related to workers getting caught in operating equipment.
It would appear that mine owners are not complying with the
longstanding ``lock-out, tag-out'' standards. Can you talk to
us about what NIOSH has done to address the ``lock-out, tag-
out'' challenges in our mines?
Mr. Kohler. Yes, we've done both training interventions,
and technology interventions. NIOSH developed, for example, a
proximity warning system to prevent a mine worker from being
pinched between a rock and a hard place, if you will. Small
belt-wearable unit, if the mine worker gets too close to a
particular piece of equipment, he gets a warning, and if he
gets within a red zone, it actually de-energizes the equipment.
So there are--and that technology has been patented and
licensed and is manufactured, there are options for trying to
attack this problem of powered haulage fatalities and injuries.
Senator Murray. While you're here, I wanted to ask you one
other question, it's about Black Lung disease which young
miners are still coming down with. After three decades of focus
on this issue, you would think that there would be better new
technology and stronger health and safety rules.
Can you talk to us about any changes in the coal extraction
processes that might be contributing to the continued high rate
of Black Lung?
Mr. Kohler. Yes, it's a multi-faceted problem, but in the
past 5 years, there have been over 5,000 Black Lung deaths,
okay, and that's despite years and years of progress, despite
the fact that the numbers are coming down, we're still seeing
in young miners, the development of very rapidly progressing
and very serious coal worker pneumoconiosis. This is a long-
term disease that develops over many years, and clearly we need
a new approach.
One opportunity that exists is with the new PDM, the
Personal Dust Monitor. The PDM allows the mine worker to know,
in real time, what the exposure is. We did some studies, and
we're ongoing studies, we're looking at how miners use the PDM.
In the most recent case, after just a couple of weeks of
wearing the PDM, the mine workers reduced their exposure by 50
percent, because they knew in real-time what the exposure was,
so they were able to make changes to the controls to drop the
dust down right then and there, rather than having to wait a
couple of weeks to find out, when it's too late.
Secondly, the PDM records the exposure, and that's
downloadable to a database every day. So, it then becomes a
tool, for mine management and engineering to use to improve
dust control, by knowing exposures every single day, it also
allows us to ensure that exposures are being kept low every
single day, not just on certain designated sampling days. So,
that's one very important technology that would be a new
approach, and might allow us----
Senator Murray. This is still in the testing process?
Mr. Kohler. No, I wouldn't characterize it that way. We've
really finished all of the testing on the PDM, and those tests
have shown it to be more accurate, more precise, more reliable
than the existing----
Senator Murray. Is it voluntary, at this point?
Mr. Kohler. It is voluntary. And it is not manufactured at
this point, the manufacturer is waiting to see what the market
is going to be for such a device.
The manufacturer, Thermoscientific, has suggested just a
week or two ago in a partnership meeting that we had with
labor, industry, MSHA and NIOSH, that they could have the
device available for sale in approximately 4 to 6 months, after
all rulemaking activities related to the device are finish. So,
this is within our reach.
At the House hearing last week, there was also some talk of
dust monitors, and this technology, it's been a 10-year path to
walk to get it to where it is, but we now have a tool at our
disposal.
Senator Murray. OK. Thank you very much.
Senator Isakson.
Senator Isakson. Just one question, on mine seals. Didn't I
understand that there's a doubling of the requirement in terms
of the strength of those seals? Is that----
Mr. Kohler. In the ETS? You're asking if there's a
doubling? I have not had a chance to review it, so I don't know
what it says.
Senator Isakson. Would you check on that and let me know?
Mr. Kohler. OK.
Senator Isakson. Because I had understood they had
increased both strength as well as testing. Testing and visual
inspection on a required regular basis on those seals, so if
you would find that out for me, I would appreciate it.
Mr. Kohler. I will do that.
Senator Murray. Senator Rockefeller, do you have any
additional questions?
Senator Rockefeller. I like what you said about testing
every day on dust level samples, because that's sort of the
opposite of TV sweeps, right? In other words, they know it's
coming up, so they put their most horrible and gory programs
on, to make sure that lots of people will watch. This is the
opposite kind of philosophy. And, I like that.
If they are being measured every day, that's the measuring
of the miner. That means, that if the measure of the miner is
not doing well, the consequence for the coal company should
have some effect. There should be some consequence for them.
That's not necessarily the case, so isn't it just in the sense
of figuring out what the dust, what the Black Lung, so to
speak, intake is on a daily basis, and dust levels on a daily
basis, but there's not necessarily a relationship between that
and what the mine has to do?
Mr. Kohler. I can't speak as to how MSHA may make a
consequence for what the readings are, but I can say that from
a science and engineering application point of view, this gives
the mine workers, and mine management, a tool that, in real
time, they can change their environment, so that they will not
be exposed to these concentrations of dust that can lead to
Black Lung. And they'll be able to do this, shift after shift
after shift.
Senator Rockefeller. But, over the 100-year history of the
coal mines, that has not been the case. Now, NIOSH has not been
around to measure it on a daily basis. Do you send to the coal
companies, on a daily basis, the measurements within their
individual mines?
Mr. Kohler. No, with this technology, this monitors,
actually, part of the cap lamp, so that it's built into the
battery, and it's built into the cap lamp. Each day--and as
they work, they can look down and they can see what their
exposure is, and what their projected exposure is, and they can
act on that.
When they leave the mine----
Senator Rockefeller. You're talking about the miner?
Mr. Kohler. Yes. And when they leave the mine, whatever
value was accumulated in their monitor is downloaded to a
database.
Senator Rockefeller. To a database where?
Mr. Kohler. Well, that is, could be determined, it's
certainly at the mine. And that database could be available, it
could be accessible to us, to others. But the very useful thing
is that a record can be made of what the actual exposure was.
Senator Rockefeller. No, and I very much agree with you and
applaud you for what you're evidently doing. But, the only
consequence that moves me, is if the data which is coming down
which shows very irregular days, or good days, bad days, at an
alarming level. This doesn't make much sense, but it makes my
point. Very few Appalachians ever get to go into a coal mine,
eventhough it's their culture, and their psychology. You have
to either be a Governor, or Eleanor Roosevelt, or somebody else
to get in there. And, that's for safety reasons, and that makes
sense.
I went in very frequently when I was a Governor, and I
always noticed that everything was just like somebody had
painted a new house. In other words, the walls were all dusted,
and everything was all beautiful.
Now, if you have a daily measurement, you can't do that.
But, the only point of having the daily measurement is that
there be a consequence if the daily measurement falls below an
acceptable standard, or rises above an acceptable standard. And
that, you say, is up to MSHA, and not up to you?
Mr. Kohler. That is correct, I mean, as the enforcement
agency, they----
Senator Rockefeller. Do you and MSHA talk about that?
Mr. Kohler. Excuse me?
Senator Rockefeller. Do you and MSHA talk about that?
Mr. Kohler. We talk about what exposure levels should be.
We do not talk to them about their assessment of penalties or
consequences, but certainly I would agree that there has to be
a consequence for not achieving a statutory requirement.
Senator Rockefeller. But, wouldn't that really push you
towards talking with them about what consequences ought to be?
Because it's not my impression that mines willingly do that.
They do that under pressure. And, I don't have any objection to
that, because that's the American way. And, it's been that way
always.
But, it does depend upon you and the database linking up
with MSHA, and their scanty budget, and--in my judgment--
somewhat faulty, recently, those are lax attitudes towards coal
mine safety. And then to the coal producer, himself or herself.
In other words, the link has to follow for there to be a
consequence, As well as, that we know about it.
Mr. Kohler. Yes.
Senator Rockefeller. Thank you.
Senator Murray. Senator Brown.
Senator Brown. I just want to followup with Senator
Rockefeller, because I think he's exactly right. You use terms
like, ``the data the miner collects every day,'' the exposure
of this dust. You said the data, you used the term, ``could be
accessible,'' the record, ``could be made''--how do we assure
that on several levels. First, that the mine administrators
know the level; second, that the mine regulators at MSHA know
the level; and third, that they have that data to precipitate
action. You have that data to collect and contribute to public
health, if you will, by direct action, but also by studying and
learning from it. How do we make sure that this data goes where
it ought to, as Senator Rockefeller suggested? Rather than
having to be pressured in any particular time, that it
automatically--is it sort of beyond the reach, that it could be
reported every day, is that something that makes sense? It
sounds like it does, from the line of his questioning.
Mr. Kohler. It could be reported every day, I mean, the
data is available, we would certainly recommend that the data
be examined by everybody--by regulators, by researchers, and
certainly by mine management.
Senator Brown. And, why isn't it?
Mr. Kohler. Well, right now, it's not available, this
device is not being used, yes, but it offers that opportunity,
once it's commercialized.
Senator Brown. What will precipitate everyone getting it?
Who needs to make that decision, the mining companies, the
Government? Who?
Mr. Kohler. It would be my opinion that a regulation
requiring its use would ensure that it would be available to
every working section of every coal mine in this country.
Senator Brown. Thank you.
Senator Murray. Senator Rockefeller had one last question.
Senator Rockefeller. Thanks, Madame Chairman.
Following up, on Senator Brown's question--the data which
you collect, is that turned over to coal mines, is that their
property? And, if it's their property, is it not MSHA's
property?
Mr. Kohler. Strictly speaking, with these devices, we don't
collect the data. The mine workers are actually collecting the
data, because they are wearing the device. And when they
download the data at their change house, or wherever each day,
it is there, it belongs to the mining company, or whoever else
has statutory access.
Senator Rockefeller. So you're saying that MSHA does not
possess that data in a way that it can use it to cause
consequence?
Mr. Kohler. At the moment, they don't. But if this device
were used in the mines, there would be no reason why they could
not establish policies about how they would access it, and how
they would use it. And I would hope that they would do that, so
that we could get the full benefit of this technology.
Senator Rockefeller. Thank you.
Senator Murray. Thank you very much, Dr. Kohler.
We are now going to turn to our second panel. If they would
like to come forward while I introduce them.
We have Dennis O'Dell, he's the Administrator of Health and
Safety for the United Mine Workers of America, he worked as an
underground coal miner for over 20 years and a member of a mine
rescue team.
Steve Bessinger is the Plant Manager for BHP Billiton, San
Juan Mine Coal Operation and Waterflow in New Mexico, and has
worked in, and managed, mine operations for over 25 years.
Bruce Watzman is the Vice President of Safety and Health
for the National Mining Association. Bruce and the NMA were
important partners in the development of key health and safety
provisions that were included in the MINER Act.
We look forward to hearing from all of you.
And Mr. O'Dell, if you're ready, we'll begin with you.
STATEMENT OF DENNIS O'DELL, ADMINISTRATOR, DEPARTMENT OF HEALTH
AND SAFETY, UNITED MINE WORKERS OF AMERICA, FAIRFAX, VIRGINIA
Mr. O'Dell. Thank you, Madame Chair.
Madame Chair and members of the committee, I want to thank
you for the opportunity for being able to appear before you
today. As the Administrator of Occupational Health and Safety
for the United Mine Workers of America, I represent the Union,
that for 117 years, has been an unwavering advocate for miner's
health and safety.
As you heard Senator Murray say, I personally spent close
to 20 years underground as a laborer, performing every task
involved associated with mining coal. Twelve years as a Health
and Safety rep for the Union, the last two as the
Administrator--so this is my life, this is my passion, this is
what I believe in. I'm a coal miner in a suit.
I am thankful that Congress has played such a significant
role in advancing miner's health and safety, and I'd like to
express my appreciation to the leadership of this committee for
your efforts to further the health and safety of all miners.
Your continued oversight is critical to ensuring miners will go
home safely at the end of their shift.
Over a year ago, shortly after the Sago and Alma disasters,
many from the mining community testified at various Senate and
congressional hearings about the inadequate protection for
miner's health and safety. Following the Sago and Alma
disasters, and after five more miners were killed on May 20th
at the Darby Mine in Kentucky, Congress moved to enact the
MINER Act. That law includes several important provisions aimed
at helping miners after a mine emergency develops. It is most
appropriate for you to consider whether the improvements
Congress intended to accomplish through the MINER Act are being
realized.
Having said that, my testimony will focus attention on
areas that MSHA needs to dedicate additional resources to fully
implement the MINER Act, as well as other safety improvements.
Some of the inadequacies in implementing the MINER Act may be
linked to insufficient resources, however others can be tracked
to the decisions made by the Agency in 2001 under then
Assistant Secretary for Miner Health and Safety, David
Lauriski.
Under Lauriski, there were noticeable shift to a compliance
system agency rather than an enforcement agency as they were
intended to be, accompanied by withdrawal of many proposed
regulations that, had they been passed, would have greatly
improved the health and safety protections for miners
throughout this Nation. Since Lauriski's departure, the Agency
has had to do a great deal of playing catch-up to undo the
damages that were put into place under his Administration.
Although some changes have been made, I am sorry to report
that MSHA's efforts over the past year will do little to change
matters today, if a mine were to experience an explosion like
the one at Sago or mine fires like the one at Alma. Indeed, the
underground miners would likely fare no better than those who
perished over 1 year ago today. Thanks to the MINER Act, we can
presume that an incident would be reported within the initial
15 minutes, however, there is no reason to expect that a
sufficient number of mine rescue teams will be able to respond
more quickly.
There has been some growth in mine rescue teams over the
last year, but overall, very little has been done in either
expanding the number, or improving the proximity of, qualified
mine rescue teams. So while some miners will be better
protected, others won't.
We still have some in the mining community saying that this
can't be done. Because a weakened MSHA had allowed a relaxed
policy on mine rescue regulations rather than enforce what the
Mine Act had said, some small operators, who have, in the past,
relied on State teams rather than employ their own mine rescue
teams, are still trying to undermine the intent of the MINER
Act. It needs to be made clear from this day forward, that all
mining operations should employ their own mine rescue teams, so
that all miners are protected as intended by the 2006 MINER
Act.
In 1969 and again in 1977, Congress mandated that
explosion-proof seals or bulkheads be used to isolate abandoned
or worked-out areas of the mine from active workings. However,
in the years since, MSHA has promulgated regulations regarding
seals that are much less protective than what Congress had
intended. The standard was further eroded when MSHA approved
the use of the type of seals, such as those that failed at
Sago. These seals failed catastrophically and we all saw the
end result, which was the death of 12 miners.
While we applaud MSHA's recent release of their emergency
temporary standard on seals, the UMWA has urged MSHA to require
the construction of seals that meet the mandates of Congress
and that they are simply to be explosion proof. We have further
suggested in our comments to NIOSH's draft report--and intend
to pass them on to MSHA--that all newly erected seals from this
point forward should be continuously monitored, regardless of
what its PSI strength is. This is the only way the operators
will know what is exactly happening behind the seals so that
miners can afford the 24/7 protection they deserve.
For the most part, there is nothing in place that allows an
operator to be able to locate trapped miners beyond the use of
a dispatcher. The ability for a dispatcher to know exactly
where the miners are at every moment of his or her shift is
impossible. This method falls way short of the intent of a
tracking device and MSHA needs to readdress how they approved
this in their Emergency Response Plans.
Safety chambers are not yet required, nor are safe havens
prescribed. Eventhough chambers have been approved by some
States, such as my own, in West Virginia, the debate still
continues. Almost half the operators do not have a complete
approved Emergency Response Plan as required by the MINER Act.
Many miners caught in a disaster would likely have 1 additional
hour of oxygen, as opposed to early 2006, so please keep in
mind that it took more than 40 hours for the first mine rescue
team to reach those at Sago. MSHA still allows mine operators
to ventilate working sections with belt air and conveyor belts
and our underground mines still have the ability to catch fire.
Belt air was prohibited in the 1969 Act and again in 1977.
Now, 38 years later, we have a technical study panel on the
utilization of belt air and composition and fire retardant
properties of belt materials in underground coal mines. It
seems like all this group really needs to do is read what
Congress adopted in 1977. It states under 303Y (1),
``In any coal mine opened after the operative date of this
title, the entries used as intake and return air courses shall
be separated from belt haulage entries, and each operator of
such mine shall limit the velocity of air course through belt
haulage entries to the amount necessary to provide an adequate
supply of oxygen in such entries. And to ensure that the air
they're in shall contain less than one volume percentum of
methane and--`here's the key'--such air shall not be used to
ventilate active working places.''
We as miners are most appreciative that Congress has worked
towards increasing MSHA's budget, so more mine inspectors can
inspect mines to ensure compliance with the Mine Act, yet we
just recently found out that MSHA is trying to eliminate their
support staff and replace them with contractors under the A76
Budget Competitive Outsourcing Initiative.
This would be a huge blow to the support staff of our
Nation's inspectors, further crippling their ability to do
their job effectively and efficiently. This could also open the
door as a tool, next, to replace our inspectors. The use of
contractors within MSHA has already been proven to undercut
miner's protection when MSHA's hotline, a toll-free number used
by miners to call in hazardous complaints, was staffed with
contractors.
Senator Murray. Mr. O'Dell, if you could summarize the last
of your comment. Sir, we want to make sure we have time for
questions.
Mr. O'Dell. Yes, Ma'am.
We need to take this a step further, if I may. There's a
few things that I'd like to list that we need to move on and
address. Miners are still dying from Black Lung. The use of the
device you heard Dr. Kohler talk about, Personal Dust Monitor,
could be very helpful, but there's many obstacles that need to
be overcome before this is implemented into the mining
industry. With the development of PDM, we also need to look at
a new standard for dust and silica. Miners should be provided
with gas detectors so that they'll know the atmosphere they're
working in. Atmospheric monitors should be required in the
mines, so that miners know what's going on in their surrounding
areas.
We need to push new developments of the SCSRs. We need to
actively pursue improved communication systems, stronger
ventilation controls, a new rock dust standard, equipment
manufacturers need to be held more to how they build this
equipment so that they're less noisy, so the hearing loss can
go down, and proximity devices should be required.
This would be a good start to bring us up to where we need
to be in the 21st Century. Miners deserve these kind of
protections and we hope that, with your help, we can get these
kind of protections. We expect MSHA to demonstrate a commitment
to enforcing the MINER Act and we look forward to working with
everybody in the mining industry to make this happen.
Thank you and I'll be happy to answer any questions.
[The prepared statement of Mr. O'Dell follows:]
Prepared Statement of Dennis O'Dell
Thank you for allowing me this opportunity to appear before your
committee. As Administrator of Occupational Health and Safety for the
United Mine Workers of America (``UMWA''), I represent the union that
for 117 years has been an unwavering advocate for miners' health and
safety.
Congress has played a significant role in advancing miners' health
and safety and I would like to express my appreciation to the
leadership of this committee for your efforts to further protect the
health and safety of all miners. Your continued oversight is critical
to ensuring miners will go home safely at the end of their shift.
Over a year ago, shortly after the Sago and Alma disasters, many
from the mining community testified at various Senate and Congressional
hearings about inadequate protection for miners' health and safety.
Following the Sago and Alma disasters and after five more miners were
killed on May 20, 2006 at the Darby Mine in Kentucky, Congress moved to
enact the MINER Act. That law includes several important provisions
aimed at helping miners after a mine emergency develops. It is most
appropriate for you to consider whether the improvements Congress
intended to accomplish through the MINER Act are being realized. The
Union supports MSHA's efforts to require substantially more oxygen for
every miner. The emergency mine evacuation rule also contains a number
of important improvements. Having said that, my testimony will focus
attention on areas that MSHA needs to dedicate additional resources to
fully implement the MINER Act.
Some of the inadequacies in implementing the MINER Act may be
linked to insufficient resources. However, others can be tracked to
decisions made by the Agency. In 2001, then Assistant Secretary for
Mine Health and Safety David Lauriski told members of the National
Mining Association that MSHA would ``collaborate more with mine
operators on regulatory initiatives'' and become ``less confrontational
with mine operators in an effort to provide companies with better
compliance assistance.'' At a meeting with mine operators in Hindman,
Kentucky, he bragged about his diminutive regulatory agenda. He noted,
``If you've seen it you noticed it's quite a bit shorter than some past
agendas.'' These policy statements were accompanied by a withdrawal of
many proposed regulations by MSHA and a noticeable shift to compliance
assistance. These compliance assistance programs divert precious
resources away from enforcement. Perhaps most tragically and in many
cases, MSHA has ignored the mandate of Congress by adopting regulations
and policies that place miners at greater risk.
MINE INSPECTORS/MINE INSPECTIONS
The Agency is experiencing great difficulty in fulfilling the
mandatory inspections required under the Mine Act. The Union is
convinced that the hiring and training of more MSHA inspectors must be
a top and continuing priority. The Agency must have a full complement
of properly trained personnel if it is to perform its primary job of
enforcing the Mine Act. The ranks of the inspectors have been
diminished over the years and we can expect further reductions as more
of MSHA's long-time inspectors leave the profession as they reach
retirement age. GAO identified this anticipated problem in 2003, yet
GAO reports again in 2007 that MSHA still does not have a plan in place
to address the anticipated retirements of its inspectors. Inspector
positions must be filled by hiring qualified individuals from all
segments of the industry, including rank and file miners. Current and
new inspectors must all be outfitted with state-of-the-art equipment
for personal protection and to perform their inspection duties.
Sufficient monies must be allocated to ensure this equipment is readily
available to these inspectors.
As the number of inspectors have decreased, MSHA's field office
specialists including ventilation specialists and its electrical and
roof control support staff have been forced to carry out routine mine
inspections. These specialists must be returned to their areas of
expertise. The only way to accomplish this is to hire an adequate
number of inspectors that will permit the specialists to focus on the
job they are trained to do. In addition, the Agency must move
immediately to train a sufficient number of inspectors to perform these
technical tasks in the future.
Congress must also ensure that funding levels at the Mine Academy
in Beckley, WV remain sufficient to meet future training needs for mine
inspectors. This facility is used to train mine inspectors and also
offers comprehensive training for miners and other health and safety
experts.
SEALS
In 1969 and again in 1977 Congress mandated that ``explosion proof
seals or bulkheads'' be used to isolate abandoned or worked out areas
of the mine from active workings. However, in the years since, MSHA has
promulgated regulations regarding seals that are much less protective
than what Congress mandated. The standard was further eroded when MSHA
approved the use of Omega Block type seals such as those that were used
at Sago. These Omega Block seals catastrophically failed as a result of
the explosion at Sago and contributed to the deaths of all 12 miners.
While we applaud MSHA's recent release of their Emergency Temporary
Standard on seals, the UMWA urges MSHA to require the construction of
seals that meet the mandates of Congress in that they are to be
explosion proof. We have further suggested in our comments to NIOSH's
draft report that all newly erected seals from this point forward be
continuously monitored regardless of its psi strength.
REGULATIONS
The UMWA believes that MSHA should adopt an aggressive regulatory
agenda to address important issues in addition to those contained in
the MINER Act, including:
1. Improved Atmospheric Monitoring Systems
2. Develop a Nationwide Emergency Communication System
3. Revise MSHA's Approval and Certification Process for Equipment
Approval
4. Occupational Exposure to Coal Mine Dust (lowering exposure
limits)
5. Collection of Civil Penalties (mandatory mine closures for non-
payment)
6. Air Quality Chemical Substances and Respiratory Protection
Standards (update personal exposure limits)
7. Surface Haulage (truck, haul road, train and loadout safety)
8. Respirable Crystalline Silica Standard (reducing quartz
standard)
9. Requirements for Approval of Flame Resistant Conveyor Belts
10. Confined Spaces (tight quartered work areas)
11. Training and Retraining of Miners (revision of Part 48)
12. Surge and Storage Piles (dozer/feeder safety surface)
13. Escapeways and Refuges
14. Accident Investigation Hearing Procedures (make them public)
15. Verification of Surface Coal Mine Dust Control Plans
16. Continuous Monitoring of Respirable Coal Mine Dust in
Underground Coal Mines
17. Modify Conferencing Process (Appeals of Citations)
18. Underground Coal Mining, Self-Contained Self-Rescuer Service
Life Approval and Training
RECORDING FATAL ACCIDENTS
Recently MSHA issued new guidelines for determining what
constitutes a mine-related fatality. The ``Fatal Injury Guideline
Matrix'' narrows the scope of what the Agency will define as a fatal
accident chargeable to the mine operator. This will allow the Agency to
report numbers that are artificially low and possibly skew the actual
health and safety record of the mine and the industry. In addition,
fatals not listed as mine-related will not get the same scrutiny as a
chargeable accident. Without the formal investigation process, lessons
learned will not be available to prevent similar events in the future.
The Union also disagrees with the committee established by the
Agency to review deaths where chargeability is in question. The
committee is made up of upper-level MSHA employees and not open to
other agencies, organizations or the public. This type of structure
does not lend itself to a fair unbiased review of the situation.
IMPLEMENTATION OF THE MINER ACT
In the MINER Act, Congress mandated timelines for its
implementation. In some cases MSHA has failed to meet these deadlines.
The Union urges Congress to allocate adequate funding to MSHA so it can
fully implement this act within the time frames set by Congress.
The Emergency Mine Evacuation Rule, which is separate from the
MINER Act but ties into the self-contained self-rescuers (SCSRs)
requirements, was finalized and made effective December 8, 2006.
However, miners working underground today do not have all the
protections that the Rule addresses. MSHA deems the operator to be in
compliance with the Rule if it has placed an order for additional
SCSRs. Although the Rule requires increased availability and storage of
SCSRs, there is a backlog of orders for these life-sustaining units.
The Union is extremely frustrated that more than a year after the Sago
and Alma disasters many miners only have 1 additional hour of oxygen.
In light of this backlog, the Union supports MSHA's approach to make
the additional oxygen units equally available to all miners. In
reality, it will still take a number of years before miners receive the
protections mandated by Congress. Miners cannot wait for another mine
disaster to occur to drive new technology; therefore, the Union
strongly urges the development and approval of the next generation
SCSR.
Moreover, the finality of this emergency response and evacuation
rule is somewhat uncertain as the National Mining Association (NMA)
filed a court challenge. The Union is not certain which aspects of the
rule NMA is contesting, but it is certain that such legal maneuvers
delays the protections Congress mandated only last year.
Congress understood the importance of requiring that mine operators
have comprehensive emergency response plans at all their operations.
The MINER Act permitted operators a 60-day period to prepare these
plans and submit them to the Agency for review and approval. However,
many of the mine emergency response plans that operators submitted were
grossly inadequate and not worthy of approval. We are now beyond the
deadline established by Congress. While we commend MSHA for not
approving these faulty plans, we do believe it must be more aggressive
and apply more pressure on the operators to get these plans completed.
Unless MSHA takes decisive action and resolves all the remaining
issues, miners will not get the mine emergency response improvements
that Congress intended.
Further, the mine emergency response plans are to be reviewed and
re-approved by MSHA every 6 months. We are already beyond the original
plan due date. If those first plans are not yet approved and fully
implemented, how can we expect MSHA to handle these semi-annual
reviews? Perhaps MSHA needs more manpower to handle this task, but
whatever the answer, until every operation has an approved plan in
place, miners are not getting the protections Congress intended.
Very little has changed in the last year concerning the ability to
communicate with and locate trapped miners. While we have learned more
about this technology and understand that much is available, very few
operators have taken advantage of it. Communication systems and
tracking devices are areas that MSHA must pursue more aggressively.
Current communication and tracking technology, including one-way text
messaging and two-way wireless systems, some of which are available
now, must be immediately installed in all mines. Any system that can
increase the ability for miners to escape a mine emergency, even if it
is limited in scope, must be utilized. The Federal Government, through
NIOSH and MSHA, must fund and direct continued studies and research to
develop the next generation of tracking and communication devices. As
this newer technology becomes available, mine operators must be
required to upgrade existing systems at all its operations.
We are also troubled by MSHA's failure to undertake action to
facilitate the creation and training of additional mine rescue teams.
Congress in the MINER Act clearly outlined its intent regarding the
need for additional mine rescue teams. In addition, the language
clearly defines how this is to be applied at both large and small
mines. While Congress allowed MSHA 18 months in which to prepare,
finalize, and give effect to rules that increase and enhance mine
rescue team requirements, so far MSHA has not adequately addressed this
need. The need is real and it is immediate. In the not-too-distant
future MSHA will need additional funding to certify that mine rescue
teams are qualified as contemplated by the MINER Act.
Over the past 20 years MSHA and some operators have weakened the
intent of the current regulations regarding mine rescue protections.
The existing mine rescue team structure is spread too thin. It takes a
lot of time and much practice for any mine rescue team to function
well. The UMWA has training facilities and is willing to provide mine
rescue training and first responder training if we receive the
necessary funding. Miners cannot afford to wait any longer for the
training of new teams to begin.
COLLECTION OF CIVIL PENALTIES
In the MINER Act, Congress charged MSHA with revising and enhancing
its penalty structure. The Agency needs to do a much better job of
tracking and collecting the fines it imposes and it should escalate the
pressure when an operator refuses to pay a final penalty.
Last year MSHA blamed computer problems on its inability to track
fines; we understand that it still faces some technological challenges.
If that is the case, then MSHA needs to fix the problem. When fines go
unpaid it not only gives an unfair competitive advantage to the
delinquent operator, but that operator's disregard for the mine health
and safety laws and regulations imposes excessive risk on its
employees. Moreover, the fine system itself is not working well.
Indeed, GAO reported that almost half of the fines that underground
coal operators challenge are compromised, and that of those contested
the fine is typically cut by about 50 percent!
To the extent that MSHA takes the position that it cannot close an
operation for having substantial unpaid fines, we submit that Congress
should grant the Agency such authority. MSHA's top personnel claim that
if it had that authority the Agency would exercise it to close
operators who refuse to pay their fines. We would welcome that.
MSHA HOTLINE
The Union has complained for some time that the current hotline
system miners use to report hazardous conditions is ineffective.
Recently, a member of the UMWA called the 800 number listed on MSHA's
Web site to report a problem at the mine where he worked and was
frustrated by problems he encountered. The individual who answered the
call, a contract employee, did not have any knowledge of mining, making
it extremely difficult for the miner to convey the message. Further,
the individual at the call center was not remotely familiar with MSHA's
District structure and was therefore uncertain which office should
receive the complaint.
The Union has stressed on many occasions that the MSHA hotline
should be staffed 24 hours a day, 7 days a week by MSHA personnel with
an understanding of the mining industry and the Agency. The current
practice of contracting this work out to call centers lessens miners'
health and safety.
BELT-AIR
In keeping with the mandates of Congress in the 1969 Coal Act and
the 1977 Mine Act, which strictly prohibits the use of belt-air to
ventilate working places, the Union has historically been opposed to
the use of belt-air to ventilate the working places. The 2006 Alma
disaster is a reminder that there is no safe way to ventilate working
sections using belt-air. This mine fire was intensified by air from the
belt entry and the contaminated air was dumped onto miners working
near-by. In addition, conveyor belts used in the mining industry must
be made of non-flammable material.
In the MINER Act, Congress directed that there be created a
Technical Study Panel to provide independent scientific and engineering
review and recommendations with respect to belt air and belt materials.
The Study Panel is then to issue a report to the Secretaries of Labor
and Health and Human Services, as well as the Senate Committee on
Health, Education, Labor, and Pensions, and the House Committee on
Education and Labor. While this Technical Study Panel has been
constituted and has begun meeting, we harbor reservations about its
administration. Congress was silent as to its administration, but MSHA
staff is providing the support personnel. If its first meetings are any
indication, MSHA seems more invested in defending the belt air
decisions it has already made than simply servicing the Study Panel.
Congress assigned this Study Panel to offer an ``independent'' review
and recommendations and we hope it can overcome MSHA's bias in favor of
belt air.
FUNDING FOR ADDITIONAL PROGRAMS AND HEALTH AND SAFETY PROTECTIONS
The Union would urge Congress to adequately fund other agencies and
programs that advance the Health and Safety of the Nation's miners.
These include:
Pittsburgh Research Center
Lake Lynn Facility
Appalachian Laboratory for Occupational Health and Safety
in Morgantown, WV
Approval and Certification Center
Personal Dust Monitors (PDM)
Colorado School of Mines
CONCLUSION
Although some changes have been made, I am sorry to report that
MSHA's efforts over the past year would do little to change matters
today if a mine were to experience an explosion like the one at Sago,
or a mine fire like the one at Alma; indeed the underground miners
would likely fair no better than those who perished over 1 year ago.
Thanks to the MINER Act, we can presume that any incident would be
reported within the initial 15 minutes. However, there is no reason to
expect that a sufficient number of mine rescue teams would be able to
respond more quickly. There has been some growth in mine rescue teams
over the last year but very little overall progress, in either
expanding the number or improving the proximity of qualified mine
rescue teams has taken place across the board. So while some miners
will be better protected, others won't. We still have some in the
mining community saying that it can't be done. Because a weakened MSHA
had allowed a relaxed policy on mine rescue regulations rather than
enforce the Mine Act, some small operators who have in the past, relied
on State teams rather than employ their own, are still trying to
undermine the intent of the MINER Act. It needs to be made clear from
this day forward that all mining operations will employee their own
mine rescue teams so that all miners are protected as intended by the
2006 MINER Act.
For the most part there is nothing in place that allows an operator
to be able to locate trapped miners beyond the use of a dispatcher. The
ability for a dispatcher to know exactly where the miners are at every
moment of his or her shift is impossible. This approved method falls
way short of the intent of a tracking device and MSHA needs to re-
address the approved Emergency Response Plans to fix this.
Safety chambers are not yet required, nor are safe havens
prescribed. Eventhough chambers have been approved by some States such
as West Virginia, the debate continues. Almost half of the operators do
not have a complete approved emergency response plan as required by the
MINER Act. Many miners caught in a disaster would likely have 1
additional hour of oxygen as opposed to early 2006, but please remember
that it took more than 40 hours for the first mine rescue teams to
reach the miners at Sago.
MSHA still allows mine operators to ventilate working sections with
belt-air, and conveyor belts in our underground mines still have the
ability to catch fire. The use of belt air was prohibited in the Mine
Act. Thirty-eight years later we have a Technical Study Panel on the
Utilization of Belt Air and the Composition and Fire Retardant
Properties of Belt Materials in Underground Coal Mining. Seems like all
this group needs to do is read what Congress adopted in 1969 and again
in 1977. It states under 303(y) (1):
``In any coal mine opened after the operative date of this
title, the entries used as intake and return aircourses shall
be separated from belt haulage entries, and each operator of
such mine shall limit the velocity of the air coursed through
belt haulage entries to the amount necessary to provide an
adequate supply of oxygen in such entries, and to insure that
the air therein shall contain less than 1.0 volume per centum
of methane, and such air shall not be used to ventilate active
working places.''
We are most appreciative that Congress has worked towards
increasing MSHA's budget so more mine inspectors can inspect mines to
ensure compliance with the Mine Act, yet we just recently found out
that MSHA is trying to eliminate their secretarial staff and replace
them with contractors under the A-76 Budget Competitive Outsourcing
Initiative. This would be a huge blow to the support staff of our
Nations inspectors further crippling their ability to do their job
effectively and efficiently. This could also open the door as a tool to
next replace our Inspectors. The use of contractors within MSHA has
already been proven to undercut miners protection when the MSHA
Hotline, a toll free number used by miners to call in hazardous
conditions or complaints, was staffed with contractors. Miners' calls
never received the proper attention. Calls went unanswered. Unsafe
conditions at the mine went un-addressed, and to this day, miners still
continue to have problems with the Hotline call center.
1. We also need to take the next step in being more proactive in
our approach to miners protection. Miners need to have the best tools
available, not only from a production standpoint, but better health
protections as well. Miners are still dying from Black Lung. The use of
a new device called a Personal Dust Monitor can be a very helpful tool
in keeping miners from being overexposed to high levels of dust
concentrations.
2. With the development of the PDM we also need to explore a new
dust standard that would reduce the miners level of exposure to coal
dust and silica.
3. Miners should be provided multi-gas detectors to alert them to
the mine atmosphere they are working in.
4. Atmospheric monitoring systems should be mandated at all mines
to alert miners if any dangers occur throughout the entire mine, not
just in the area they are working.
5. We need to push the development of a new self-rescuer that will
last longer and be more user-friendly when switching from one to
another if necessary during escape.
6. We need to actively pursue improved communication systems. I was
made aware this week that wireless technology does exist but hasn't
been explored to the extent it should.
7. Stronger ventilation controls should be required that are used
to separate our fresh air escapeways that miners have to travel in the
event of a mine fire.
8. A new rock dust standard should be put in place that would
decrease the amount of coal dust that is currently allowed to
accumulate on the mine roof, ribs, and floor.
9. Equipment manufacturers should be made to design less noisy
mining machinery, which would help reduce hearing loss.
This would be a good start. If we do these things then maybe we can
bring our safety standards up to the 21st century. There are other
recommendations we have listed in our Sago report, which has already
been made available to you. The report can also be seen on our Web site
at UMWA.org.
We expect MSHA to demonstrate a commitment to enforcing the Mine
Act and to improving miners' health and safety so that our industry
will never again experience another mine disaster like Sago or Alma.
New technology is progressing on a daily basis and the UMWA urges MSHA
to require mine operators to employ these technologies as they become
available. This will greatly improve miners health and safety
protections, which is long overdue.
Again thank you and I will be happy to answer any questions that
you may have.
Senator Murray. Thank you very much, Mr. O'Dell.
Dr. Bessinger.
STATEMENT OF S.L. BESSINGER, Ph.D., PE, ENGINEERING MANAGER,
BHP BILLITON, SAN JUAN COAL COMPANY,
WATERFLOW, NEW MEXICO
Mr. Bessinger. Good morning, Madame Chair and distinguished
members of the subcommittee. My name is Dr. Steve Bessinger and
I'm a mining engineer and the Engineering Manager for BHP
Billiton, San Juan Coal Company in New Mexico.
On behalf of my company, thank you for inviting us to
participate in the subcommittee's oversight hearing concerning
the MINER Act. We hope that your invitation to participate is
in recognition of our tireless efforts on safety at San Juan
Mine.
Our total commitment to safe production can be summarized
by a single concept, and that is zero harm. This is a principle
that each of us at BHP Billiton live by every day. We believe
that our safety program is among the strongest in the industry.
However, we work to improve our performance on a continuing
basis.
San Juan Mine is a part of BHP Billiton's New Mexico coal
operations. BHP Billiton is the world's largest diversified
natural resources company and the New Mexico operations are
composed of the Navajo Mine, a surface coal mine located on the
Navajo Reservation, and the San Juan Mine, an underground
longwall operation. Here is a picture of what our longwall
equipment looks like installed underground.
We employ over 1,000 people, of whom 65 percent are Native
Americans. Our mines are essential to the electricity supply of
California, Arizona, New Mexico, Utah, and Colorado. Because of
BHP Billiton's focused risk assessment approach to safety, we
were already doing most of what the MINER Act requires. Prior
to startup of the underground mine at San Juan, we performed an
extensive, site-specific risk assessment, which identified
risks unique to our mine and some common to other coal mines.
In the proactive manner, mitigation strategies were then
developed and implemented to manage the risks consistent with
our zero-harm objective. Nevertheless, it's been a significant
challenge to meet the requirements of the act in the timeframe
provided, not to mention the associated cost.
In some cases, technology has been a challenge, such as the
mandate for wireless, through-the-earth communications, and
personnel tracking. Technology is adapting and developing, but
is relatively slow because the incentive to developers is
limited. With only 466 operating underground coal mines in the
country, the market for such technology is small compared to
other markets where technology develops quickly, such as mobile
phone and personal computing technology. The technology
developed for mining is also expensive because the embedded
development cost must be covered over a relatively small number
of units, compared to high-volume markets.
One of the best and fundamental requirements of the MINER
Act are the emergency response plans, which we call ERPs. These
require us to provide for the evacuation of miners should a
mine emergency occur and provide for sustenance of miners if
they're unable to escape. Here's a photo of one of our
permanent underground escape shelters currently existing in our
mine. After 8 months of diligent work, we're proud to tell you
that our ERP has been approved and we believe it to be the
first in the Nation.
The theme common of the MINER Act is the need to stimulate
research and development for mining industry needs. More needs
exist, including the needs for research and development related
to monitoring of mine atmospheres, prevention of gas
explosions, mine seals, roof control, next generation self-
rescuers, and wireless communication technology.
In conclusion, I'd like to invite the subcommittee members
to visit BHP Billiton's New Mexico operations. Our thousand-
strong team would be glad to host you on visits to San Juan
Navajo Mine. Thank you for the opportunity to participate in
this hearing.
[The prepared statement of Dr. Bessinger follows:]
Prepared Statement of S. L. Bessinger, Ph.D., P.E.
INTRODUCTION
Good morning Madame Chair and distinguished members of the
subcommittee. My name is Steve Bessinger and I am the Engineering
Manager for San Juan Coal Company, a 100-percent-owned subsidiary of
BHP Billiton. On behalf of BHP Billiton, thank you for inviting us to
participate in the subcommittee's oversight hearing concerning the Mine
Improvement and New Emergency Response Act of 2006 or the ``MINER
Act.''
To begin, we strongly support the goals and purposes of the MINER
Act. At the heart of the new law, in our view, is the requirement for a
mine-specific accident response plan. It has been no small task to meet
the immediate mandates of those requirements, and we have more
challenges awaiting us over the next several years as the milestone
dates of the act arise (for example the wireless communication and
tracking requirements).
For us the other most important thrust of the MINER Act is a
strengthening of the Federal Government's capabilities regarding mine
safety research. This re-invigorated research program should help the
industry meet both MINER Act research needs as well as other mine
safety problems. Our statement addresses these two critical issues in
more detail below.
An overriding commitment to the safety of our employees and
contractors is fundamental to BHP Billiton's strategy and is deployed
through all its operations. For many years we have worked tirelessly
towards our goals and to address the challenges presented in this area.
Before its enactment on June 15, 2006, our safety program already
incorporated a number of the MINER Act's principles. However, although
the MINER Act contains much that is familiar to us, its requirements
have presented, and continue to pose significant demands. We believe
that our company is on schedule with MINER Act compliance.
BHP BILLITON SAN JUAN UNDERGROUND COAL MINE
By way of brief introduction, the San Juan Underground Coal Mine is
part of BHP Billiton's New Mexico Coal Operations. BHP Billiton is the
world's largest diversified natural resources company. We have more
than 100 operations in approximately 25 countries throughout North and
South America, Africa, Asia, and Australia. Around 7 percent, or 2,660
of our employees globally are located in North America, with the
majority of these within the Unites States. As well as our coal
operations in New Mexico, we have petroleum activities in the Gulf of
Mexico, the headquarters for our global petroleum business is located
in Houston, Texas, and part of our copper business operates in Arizona.
Our New Mexico Coal Operations are located in the Four Corners area
of northwestern New Mexico. We currently have two operating coal mines:
(1) the Navajo Mine, a large surface coal mine located within the
boundaries of the Navajo Reservation; and (2) the San Juan Mine, an
underground longwall operation. About 65 percent of our salaried and
hourly workforce of 1,000 employees is comprised of Native Americans.
At both mines our miners are represented by Local 953 of the
International Union of Operating Engineers. The two mines produced
approximately 16.5 million tons of coal in 2006. The Navajo Mine is the
sole supplier of fuel to the Four Corners Generating Station operated
by Arizona Public Service (``APS''); and the San Juan Mine is the sole
supplier of fuel for the San Juan Generating Station operated by Public
Service of New Mexico (``PNM''). These power plants furnish electricity
to New Mexico, Colorado, Utah, Arizona, and California. Our New Mexico
Operations had a 2006 payroll of $77 million, and we purchased
equipment, services, materials, and supplies worth $156 million. In
2006, our New Mexico Operations paid State, local, Tribal and Federal
taxes and royalties totaling almost $118 million, plus State and
Federal payroll income taxes and State Corporate Income tax.
Historically the San Juan Mine had been a surface coal mine, but as
its surface mineable reserves became depleted we began to develop an
underground longwall mine in 2000. Underground mining commenced in
February 2001 and full production capacity was reached in early 2004.
There are sufficient coal reserves to meet our contractual commitments
to at least 2017. Because of a scarcity of experienced underground and
surface miners, it was necessary for us to recruit and train a
workforce of nearly 80 percent inexperienced miners for the underground
workforce. For example, as you can see from the attached picture
(Attachment 1), we actually constructed a portion of the longwall
machine on the surface, about one fifth of its installed size, a total
of three football fields in length when complete. We trained our miners
on it until they became comfortable with their tasks. As the Senators
may know, the longwall method of mining is the safest and most
productive method of underground coal mining techniques. Longwall
mining is highly productive because of its focus on a systems approach
to mining and the use of advanced technology (See the photos in
Attachments 2 and 3). A unique safety aspect of our mine amongst other
U.S. mines deserves a brief explanation: that is, we use what is called
a bleederless longwall ventilation system as a control to suppress the
natural tendency of our coal seam to spontaneously combust. This
includes the use of a nitrogen injection system to manage oxygen
content to safe levels. This helps to minimize the risk of an explosion
or a spontaneous combustion heating event. The spontaneous combustion
characteristic of our coal is a relatively unusual circumstance, not
found at most underground coal mines in the United States.
BHP BILLITON SAN JUAN COAL COMPANY'S SAFETY AND HEALTH PROGRAM
From the outset of the Mine's development, our approach to safety
and health has been grounded upon a systematic risk-based analysis
program focused on the specific characteristics of our mine. This is
consistent with the 2006 recommendations of the National Mining
Association's Mine Safety Technology and Training Commission, chaired
by Professor Larry Grayson. BHP Billiton fully supports those
recommendations. More specifically, we implemented a program comprised
of detailed safety process components and a safety process matrix to
address identified risks. It involves all of our hourly and salaried
employees, as well as contract miners and equipment service
representatives. This embraces BHP Billiton's Fatal Risk Control
Protocols that are mandatory at each site around the world. Each
operation within BHP Billiton has access to best practices that have
been tested, modified and documented in more than 100 operations within
the Group. But the key is that this common methodology also allows us
to identify risks posed by each mine and manage those specifically,
rather than manage every mine the same. Some of our success might also
be attributed to our behavioral-based safety programs amongst
management, employees and contractors. One example was our Stop-Look-
Assess-Manage (``SLAM'') process which was recently embraced by MSHA.
Our bottom line is that at any BHP Billiton site, we seek to create a
mindset and an environment where people believe it is possible to work
injury-free and everyone understands they are empowered to manage safe
production by stopping work at any time they feel the activity is
unsafe. This occurs regardless of where they are in the world, what
role they undertake, or in which business they work. We call this
objective Zero Harm.
Our program at the San Juan Mine is designed to ensure we comply
with the requirements of the Federal Mine Safety and Health Act of
1977, as amended by the MINER Act. But rather than just targeting
compliance, we bring known best practices to bear to manage our
assessed risks. San Juan's personnel engage in regular dialogue with
our BHP Billiton colleagues and other experts in the United States,
Australia, South Africa and around the world.
When all is said and done, we are very pleased there have been no
fatalities in the history of the San Juan Coal Company. While our
injury rate for 2006 was 3.26 versus the national average of 4.88, we
will not be satisfied with anything less than a continuation of our
first quarter 2007 results which were 0.00. We recognize this is a
journey and not a destination. In all of our operations it is critical
that we are vigilant in identifying new, emerging or changing risks,
and managing those risks in a way that is appropriate for each site.
This must continue to be the case because there is always room for
further improvement. Please let me take this opportunity to invite you,
Madame Chair, and members of the subcommittee to visit our mines. All
1,000 members of our New Mexico Coal team are proud of our operations
and we would be very pleased to provide you with a tour of our New
Mexico Operations.
BHP BILLITON SUPPORTS THE MINE SAFETY AND HEALTH ACTIVITIES OF THE
NATIONAL MINING ASSOCIATION AND THE MINE SAFETY AND HEALTH
ADMINISTRATION
BHP Billiton is a member of the National Mining Association
(``NMA''). Like NMA, we are strong supporters of the goals and intent
of the MINER Act. We work closely with MSHA on the ground as a
stakeholder in our safety process. Indeed, we engage in healthy debate
and consultation with MSHA on various issues, many of which are above
and beyond compliance issues. In this way MSHA is an important partner
in our success.
THE MINER ACT
We support the MINER Act's spotlight on mine emergency
preparedness. In fact, because of BHP Billiton's focused risk
assessment approach to safety, we were already carrying out a good deal
of what the MINER Act now requires. Prior to the MINER Act, we had
constructed three escape shelters in our underground workings. Their
purpose is to facilitate the coordinated evacuation of miners or to
sustain them if they become trapped underground. The shelters are
supplied with fresh air from the surface by a bore hole, ventilated at
a minimum rate of 90 CFM; and they are equipped with food, water, first
aid supplies, and a separate communication system to the surface
through the bore hole. Photos of these escape shelters are attached as
Attachments 4, 5 and 6 to my statement. As for self contained self
rescuers (``SCSRs''), prior to the MINER Act we had 475 1-hour devices
in our system to cover a typical work shift having approximately 50
miners underground. We have been actively involved with MSHA and NIOSH
in the approval of the use of Self Contained Breathing Apparatus
``SCBA'' as an alternative to existing approved escape breathing
devices, to be delivered mid-2007. San Juan has also used the Personal
Emergency Device, (PED) and three other communication systems
underground for several years. Our approach to the use of escape
shelters, communications systems and SCSRs provided us with a running
start to compliance with the MINER Act requirements for a written
accident response plan or emergency response plan (``ERP''), as we
discuss below.
BHP BILLITON SAN JUAN'S WRITTEN ACCIDENT RESPONSE PLAN OR EMERGENCY
RESPONSE PLAN (``ERP'')
To begin, the MINER Act requires that approved ERPs shall----
Afford miners a level of safety protection at least
consistent with existing law;
Reflect the most recent credible scientific research;
Be technologically feasible;
Make use of current commercially available technology; and
Account for the specific physical characteristics of the
particular mine.
This last criterion especially is an endorsement of the mine
specific risk assessment used by BHP Billiton.
We are proud to report to you that as of April 16, 2007, our San
Juan Mine has an MSHA-approved ERP. We understand that this was the
first approved ERP in the Nation. The ERP approval process took about 8
months from start to finish. As the subcommittee knows, approved ERPs
must be reviewed by MSHA at least every 6 months, and no later than
mid-2009 every ERP must provide for post-accident communications
between underground and surface personnel via a wireless two-way
medium, as well as provide for an electronic tracking system permitting
surface personnel to determine the location of any persons trapped
underground. These are daunting tasks given present technology.
For now, however, our approved ERP includes: a redundant means of
communication with the surface for persons underground; a tracking
system that allows us to know the current or the immediately pre-
accident location of all underground personnel; sufficient caches of
SCSRs for the evacuation and escape of our underground workforce;
emergency supplies of breathable air for individuals trapped
underground sufficient to maintain them for a sustained period of time;
post-accident lifelines; and the other required components of ERPs.
With particular regard to post-accident breathable air for trapped
miners, we have constructed two more permanent escape shelters; and we
are in the process of purchasing four pre-fabricated portable refuge
chambers (one of the six varieties of chambers approved by the State of
West Virginia). We appreciate the opportunity to be involved in the
development of the NIOSH refuge chamber study.
MINER ACT STRENGTHENING OF MINING RESEARCH ACTIVITIES
As noted at the beginning of this statement, we are very pleased
that the MINER Act has strengthened the Nation's mining research
capabilities through creation and funding of a permanent Office of Mine
Safety and Health within NIOSH. Madame Chair, and members of the
subcommittee, in the long-term, this will be one of the most important
life-saving accomplishments of the MINER Act. Recent events highlight
the need for increased and sustained funding to support basic research,
and development of technology that the industry needs to continue to
improve the safety of our industry. The MINER Act is a start in the
revival of this key component of what is now recognized to be a
strategically important and economically critical industry for our
country's safety, security, and well-being.
Early this month, a BHP Billiton representative was present at the
meeting of the statutorily established Mine Safety and Health Research
Advisory Committee (MSHRAC) in Pittsburgh, Pennsylvania. That Advisory
Committee is charged pursuant to Section 102 of the Federal Mine Safety
and Health Act of 1977, with advising both MSHA and NIOSH on matters
involving mine safety and health research. We were pleased that MSHRAC
heard and discussed excellent presentations from NIOSH about its MINER
Act research activities dealing with communications and tracking,
refuge chambers, mine seals, behavioral research on escape, development
of improved SCSRs, and other important projects. In short, progress is
being made in mine safety research as a result of the MINER Act.
SEALING OF ABANDONED AREAS IN UNDERGROUND COAL MINES
The MINER Act Section 10 requires MSHA to raise the required
strength level of materials sealing off abandoned areas in underground
coal mines.
We understand that MSHA will be publishing shortly an ``emergency
temporary standard,'' on mine seals. We support this process, but have
filed a mine specific Petition for modification to the Agency's current
standards for the construction of alternative mine seals in accordance
with our risk-based approach.
We filed this Petition because we strongly believe that the
application of the current standard presents a diminution of safety for
our miners. A number of 2006 safety incidents were a direct result of
materials handling. In lieu thereof, we have offered an alternative
method that will at all times provide an equal or higher degree of
safety as that provided by the existing standard. This alternative is
an upgraded seal design and construction procedure for MSHA's
consideration, which includes a procedure for monitoring and sampling
of the atmospheres behind our seals. This procedure includes an action
plan which, when necessary would require evacuation of the mine. We
sincerely hope that publication of the emergency temporary standard
will result in MSHA approval of our proposed system of construction and
monitoring of our seals.
CONCLUSION
In closing, we very much appreciate having been invited to
participate in this hearing. An overriding commitment to the safety of
our employees and contractors is fundamental to BHP Billiton's strategy
and our own personal dedication to safety. Our initiatives towards Zero
Harm are built upon our risk management approach, Fatal Risk Control
Protocols, our adoption of best practices world-wide, and our use of
behavioral-based safety, all focused to our site-specific
circumstances.
We support the spirit and goals of the MINER Act and the potential
benefits that will be realized from increased funding into mining
research and development.
Thank you again for your interest in our miners' safety. BHP
Billiton stands ready and willing to advise and assist you in this
critically important issue and we look forward to you visiting us in
New Mexico.
Senator Murray. Thank you, Dr. Bessinger.
Mr. Watzman.
STATEMENT OF BRUCE WATZMAN, VICE PRESIDENT, SAFETY, HEALTH &
HUMAN RESOURCES, NATIONAL MINING ASSOCIATION, WASHINGTON, DC.
Mr. Watzman. Thank you Madame Chair, Senator Isakson, and
Senator Rockefeller.
And especially, thank you Senator Rockefeller, for your
continued interest in this issue, your continued interest in
the use of coal as an energy source for our country, and the
health of the industry.
We appreciate the opportunity to appear before you to talk
about the industry's actions to implement the MINER Act, the
challenges we face, our views on enhancing mine safety research
and the role of technology, and the findings of the independent
Mine Safety Technology and Training Commission, and what we're
doing to implement those.
Since passage of the MINER Act, which NMA aggressively
supported, we've been moving aggressively to meet the mandates
of the act. Senator Isakson touched upon many of the
accomplishments. There's a chart that's appended to my
testimony that further delineates those, but let me touch upon
one or two.
With the recent approval of expectation training units, we
are now going to be training each miner annually on units that
imitate the breathing resistance and heat that they will
experience when and if they have to don an SCSR. This is a tool
that has never been available in the past and will be valuable
to the miners.
We've installed lifelines in both the primary and secondary
escape ways and emergency tethers are provided in the event
that miners have to link to one another in the event of an
emergency escape. And all miners have submitted plans now to
provide 96 hours of post-accident breathable air to sustain
miners that are unable to escape and await rescue. And I would
note, that the vast majority of these are meeting the
requirement, by using refuge chambers that may or may not
ultimately be approved by MSHA, and that's a problem for the
industry today.
These steps and others taken beyond the requirements of the
MINER Act have resulted in a safety investment of approximately
$250 million for NMA member companies alone. These numbers
simply reflect one quantifiable measurement of the industry's
commitment to the MINER Act and there's more to be done. We've
undertaken several voluntary initiatives outside the MINER Act.
We established with MSHA and NIOSH a review committee to review
existing mine rescue procedures. And this resulted in the
development of a generic mine rescue handbook that has been
shared throughout the industry for those that are forming new
mine rescue teams and developing mine rescue protocols.
Additionally, we're working with industry communications
specialists to develop protocols for communications with the
media and families in the event of an emergency.
But we do face impediments to continue the improvement. Dr.
Kohler talked about the mine emergency communication
partnership that has been formed. We participate in that. It
has been very valuable. The purpose of the partnership is to
evaluate technologies for use in underground mines. What we
have found, is that what may work in one application will not
necessarily work in another, so we have hurdles to overcome.
Similarly, we're working with NIOSH in the development of
the new SCSR and we have been an active participant in the
development of the Personal Dust Monitor, something that we
support.
Another impediment or challenge that we face is the often
conflicting regulatory requirements imposed by MSHA and State
governments that I alluded to earlier. We don't have the luxury
of time to develop one technology that complies with MSHA
requirements, another for one State, and possibly another for a
third or fourth State.
Dr. Bessinger talked about the small marketplace that we
provide to manufacturers. That is a very real problem for us.
Many manufacturers opt not to bring their products to the
mining marketplace, and this is the importance of NIOSH today.
They fill that void in the development of technology and, in
our view, at no time in recent history has the expertise
residing in NIOSH been more vital to improving mine safety.
While NIOSH continues to develop and implement advances in
mine safety, progress has been slowed due to the erosion of
research funds. We thank you for your support of this critical
government function and urge you to, again, ensure that funding
that is commensurate with the role intended by Congress under
the MINER Act.
Finally, the path to future improvement--as you know, in
January 2006, NMA appointed an independent commission to
immediately undertake a study of new technologies, procedures,
and training techniques that can further enhance safety in
underground coal mines. The Commission unanimously adopted 75
recommendations that are both near-term and far-term in nature.
Many of the recommendations endorsed actions taken by
Congress in implementing the MINER Act and many are being
implemented now by the industry. The central theme of the
Commission's recommendations is a call for a new approach that
focuses on a systematic and comprehensive risk assessment-based
model toward prevention. This won't be easy, but we're
committed to the task and we're working with NIOSH to develop
tools and templates to disseminate throughout the industry, so
that everyone can bring this into their safety program. It is
time that we renew our efforts on prevention, and risk
assessment is an integral part of that.
Madame Chair, we look forward to working with you and
members of this committee and members not in this committee who
have a keen interest in mine safety, as we continue our
collective efforts towards improvement. Thank you and I'd be
happy to answer any questions you have.
[The prepared statement of Mr. Watzman follows:]
Prepared Statement of Bruce Watzman
Good morning. My name is Bruce Watzman, and I am the vice president
of safety, health and human resources for the National Mining
Association (NMA).
NMA and its member companies appreciate the opportunity to discuss
with the subcommittee the industry's actions to implement the Mine
Improvement and New Emergency Response Act of 2006, which NMA
supported; what remains to be accomplished; the impediments that we
face; our views on enhancing mine safety research capabilities and the
role of technology to advance miner safety and health; and the findings
of the independent Mine Safety Technology and Training Commission and
what the industry is doing to implement its recommendations.
MINER ACT
NMA worked toward the passage of the MINER Act. We continue to
believe that its core requirements are sound. The requirements, as
implemented through Emergency Response Plans, recognize the need for a
forward-looking risk assessment, that good safety practices continually
evolve based upon experience and technological development, and that
every underground coal mine presents a unique environment and what may
work in one may not be effective or desirable in another. As the act's
legislative history succinctly states: ``The goals of optimizing safety
and survivability must be unchanging, but the manner for doing so must
be practical and sensible.''--S. Rep. No. 109-365 p. 3.
We believe that this passage not only aptly captures the intent of
the law, but also serves as a useful reminder to the industry and
regulators that there is often more than one way to achieve our
singular purpose to improve workplace safety.
Since passage of the MINER Act the industry has moved aggressively
to identify technology that will enable us to meet the mandates of the
act in as short a timeframe as possible. While more work needs to be
done to fully comply with the act's mandates, the industry has, as
reflected below and in the chart that accompanies this statement, made
significant progress. To date:
86,000 new self-contained self-rescuers (SCSR) have been
placed into service in the last 12 months and more than 100,000 will be
added in the coming months.
All 55,000 underground coal miners have and will continue
to receive quarterly training on the donning and use of SCSRs.
With the recent approval of expectation training units,
all miners will begin to receive annual training with units that
imitate the resistance and heat generation of actual models.
Mines have installed lifelines in both their primary and
secondary escapeways and emergency tethers have been provided to permit
escaping miners to link together.
Underground coal mines have implemented systems to track
miners while underground; underground coal mines have also installed
redundant communication systems, and new systems to provide post-
accident communication continue to be tested.
All mines have submitted plans to provide post-accident
breathable air to sustain miners that are unable to escape and await
rescue.
Thirty-six new mine rescue teams have been added or are in
the planning stages, even before MSHA initiates the rulemaking required
by the act.
These steps and others taken beyond the requirements of the MINER
Act have resulted in a safety investment of approximately $250 million
for NMA member companies alone.
These numbers simply reflect one quantifiable measurement of the
industry's commitment to the MINER Act. And it is only the beginning.
Just as the MINER Act itself is not the end, but rather one means for
reaching our desired goal to protect our Nation's miners.
Even before the enactment of the MINER Act, NMA and its members
engaged the National Institute for Occupational Safety and Health
(NIOSH) and Mine Safety and Health Administration (MSHA) in a mine
emergency communications partnership.
The purpose of the partnership is to evaluate current practices and
technologies, design performance criteria and protocols for testing,
and identify mines where the technologies can be tested. Our members
have volunteered their mines for testing tracking and communications
systems. Some of these technologies hold great promise; however, they
are, in our estimation, some years away from readiness for mine
application.
Communications and safety experts agree that underground coal mines
present unique challenges to radio and wire signal propagation. What
works in one mine may not perform in another. As we seek to find and
deploy the best systems, we will continue in the meantime to improve
conventional systems to provide more reliable means for tracking and
communicating with miners underground.
Beyond the actions taken by the industry to comply with Federal and
State rules we have undertaken several voluntary initiatives that we
would like to bring to your attention.
The industry along with MSHA and NIOSH initiated a review of
existing mine rescue procedures to determine if existing practices and
protocols remain operative given the structural changes that have
occurred across the industry. This effort resulted in the development
of a generic mine rescue handbook that can serve as a guide for those
forming mine rescue teams and developing mine rescue protocols, as well
as a review tool for those with established procedures in place. This
document has been distributed throughout the mining industry to be used
as a pre-event planning template that will expedite the delivery of
mine rescue services in an efficient manner, should they be required.
It is also readily available to the industry and public on NMA's Web
site at www.nma.org.
Working with the industry's communication specialists, NMA is
developing a protocol for communications with the media during a mining
crisis. The protocol recognizes the important role of the media in
keeping communities informed about the facts surrounding a mining
accident or fatality and the obligation of mine operators to contribute
to that understanding. The protocol will provide a framework for
effective communications and cooperation with MSHA, as envisioned by
the MINER Act.
Another challenge we face is the often conflicting regulatory
requirements imposed by MSHA and State governments. We do not have the
luxury of time to develop one system that complies with MSHA
requirements, another for one State and possibly a third or fourth for
additional States.
Unfortunately, the underground mining marketplace is not attractive
to many technology providers. In the interest of miner safety, it is
imperative that we embrace policies that encourage the broadest
possible application of technology across all underground coal regions.
MINE SAFETY RESEARCH
At no time in our recent history has the expertise residing at
NIOSH's mining program been more vital to improving mine safety. The
elimination of the Bureau of Mines in 1995 was a blow to the
longstanding and renowned government leadership in mine safety and
health research. The permanent establishment through the MINER Act of
NIOSH's Office of Mine Safety and Health will begin to restore this
important function to its former prominence. However, without adequate
resources, the Office of Mine Safety and Health's leadership in this
area will suffer, and the MINER Act's expectation for the acceleration
in the pace of research and progress will be frustrated.
While NIOSH continues to develop and implement important
advancements in mine safety and health, progress has slowed due to the
erosion of research funds, and the situation is becoming critical.
Because NIOSH's budget for mine safety and health has remained
relatively flat in recent years, its purchasing power continues to
decline with the increasing cost of labor, materials and other research
costs.
As we consider how to advance the development and introduction of
new technology, we urge you to again strengthen this vital government
function and ensure funding for NIOSH is commensurate with the role
Congress intended under the MINER Act to ``enhance the development of
new miner safety technology and technological applications and to
expedite the commercial availability and implementation of such
technology in mining environments.''
MINE SAFETY TECHNOLOGY AND TRAINING COMMISSION--THE PATH TO
FUTURE IMPROVEMENT
In January 2006, NMA established the Mine Safety Technology and
Training Commission, an independent body, to immediately undertake a
study of new technologies, procedures and training techniques that can
further enhance safety in the Nation's underground coal mines. The
commission drew upon the knowledge and experience of mine safety and
health professionals from academia, government, industry and the United
Mine Workers of America to develop a pro-active blueprint for achieving
zero fatalities and zero serious injuries in U.S. underground coal
mines. The product of the commission's deliberations is a peer-reviewed
report that was released in December 2006. The report has been
recognized outside the industry as a blueprint to achieve the goal of
zero fatalities and accidents.
The commission unanimously adopted 75 recommendations that are both
near-term and far-reaching in scope. Many of the recommendations
endorse actions taken by Congress in passing the MINER Act. The
commission's recommendations cover communications technology; emergency
preparedness; response and rescue procedures; training; and escape and
protection strategies.
The central theme of the commission's recommendations is a call for
a new paradigm for ensuring mine safety--one that focuses on a
systematic and comprehensive risk assessment-based approach toward
prevention that serves as the foundation from which all safety efforts
will flow. This new approach will require us to look at mining
differently and to train miners differently.
The industry is currently implementing a number of the commission's
near-term recommendations and is developing a blueprint for action on
the more far-reaching items. For example, we are discussing with NIOSH
the development of risk-based management tools and templates to assist
the industry in its implementation of the central recommendation of the
commission. The use of risk-analysis risk-management, while not a
common practice throughout the industry, is familiar to many of the
larger companies. Our goal is to create operational tools that will
help every company identify and address significant hazards before they
create situations that threaten life or property. While having systems
and practices in place to aid miners in the event of an emergency is
important, it is equally, if not, more important that we renew our
attention on prevention and risk-assessment as an integral part of this
effort.
We share the commission's view that adoption ``. . . of a
comprehensive, risk assessment-based approach toward prevention should
significantly increase the odds of survival for miners in emergency
situations, [and] also provide a guideline for pursuing zero accidents
from all sources.'' We are mindful, however, that this is a significant
undertaking. As Professor Jim Joy of the University of Queensland,
Minerals Industry Health and Safety Center, has described the
Australian mining industry's experience with implementation of a risk-
based approach, as ``immense and fraught with stumbling blocks.''
Nonetheless, we are committed to the task.
Today the industry faces important challenges. More complicated
geological conditions, advancements in technology and a new generation
of miners require the introduction of new and innovative techniques.
Our ability to further advance coal mine safety will require that
government and industry continue to harness their collective resources
to identify new technologies and practices that eliminate accidents,
illnesses and injuries in the workplace.
We look forward to working with you to ensure that the resources
required to achieve this goal are available so that every miner can
return home safely each and every day.
Thank you. I would be happy to answer any questions.
Senator Murray. Thank you very much, all three of you, for
your excellent testimony.
Mr. O'Dell, let me start with you. A few months ago, we
heard from Mr. David McAteer, former MSHA Administrator, a
recognized authority on mine safety, and he testified at a
Senate Appropriations hearing and said, ``Unfortunately, for
the average miner underground today, not much has improved from
the day-to-day safety and health standpoint.'' A few months
have now passed since that hearing. I would like to ask you,
what has the average miner seen in changes since we passed the
MINER Act?
Mr. O'Dell. They've probably seen the addition of a self-
rescuer, one more than they had before, some mines may see
additional lifelines. We used lifelines when I worked in the
coal mine. I happened to work for a progressive company, at the
time they used lifelines, so miners will see additional
lifelines in different entries, so they'll see some of those
changes.
They will have been trained a little more than what they
had received before. And that's all well and good, and I think
it's important that we've made those steps. But the real
question is, if a disaster were to occur, would we be able to
get to those miners in a timely fashion?
Senator Murray. So, what's missing?
Mr. O'Dell. I don't think, across the board, we have the
number of mine rescue teams that we need, that is necessary to
rescue them, if necessary. I don't think we have in place the
communications, I don't think we've addressed all the seal
issues yet, that will be protective.
Senator Murray. What about the emergency response plans--
Dr. Bessinger said they had one, do you know of any other mines
with their emergency plans in place yet?
Mr. O'Dell. We heard there are about half of those that
have been approved, but there's still, the other half that
haven't been completely approved, so----
Senator Murray. And the mine rescue teams, that was an
important part of the MINER Act, as well. Do you know where
MSHA is on their rulemaking on the mine rescue teams?
Mr. O'Dell. I can't answer that.
Senator Murray. Dr. Bessinger, I really appreciate your
being here today. Your company seems to have taken sort of a
risk-
adverse approach to protecting workers. Why have you done that?
Mr. Bessinger. Well, I think our approach is one that is a
product of our cumulative corporate experience, and BHP
Billiton, being the largest diversified natural resource
company has over 100 installations in 25 different countries,
and we endeavor to apply the best practices of any of those
installations, where applicable, at any of the other
installations.
Risk assessment happens to be one of those techniques. And
through the application of risk assessment, we've identified
many of the needs that were only subsequently identified, and
we've been able to proactively respond to those. You know,
prior to them being required.
Senator Murray. You did do them prior to being required--
does that affect your profitability?
Mr. Bessinger. Well, there's certainly been a cost impact
associated with compliance, eventhough we did many of the
initiatives prior to their requirement, we believe that over
about a 2-year period, it's going to cost us in the
neighborhood of $9.5 million to comply. Above and beyond what
we already did.
Senator Murray. Mr. Watzman, can you talk about the
reactions from mine operators to the increased spine structure
that was passed in the MINER Act?
Mr. Watzman. Beyond MINER Act, MSHA has now finalized
regulations that dramatically increase the civil penalties that
can be written.
There was a fundamental difference in philosophy, in the
view of the operators, as opposed to those promoting increased
penalties. There was a belief on the part of some that
penalties are an inducement to cause one to do the right thing.
That is something that the industry disagrees with. We believe
that you run a safe mine, because we have seen, time and time
again, that a safe mine is a productive mine. Those are not
competing goals, those are complimentary goals. There was all
of the inducement necessary today for operators to run safe
operations, and the vast majority of them do so.
One of the more interesting statistics is there are
approximately 14,000 mines across the country--both in coal,
and metal/non-metal operations. And I think that the number
MSHA will use--and they can provide it or I can get it for you,
if you would like--that somewhere in the range of 9,000 or
10,000 of those mines operated last year without a single lost-
time accident. Those mines understand that they're not
conflicting goals. If you are going to produce a product in
this industry, you're going to run the mine safely. And in so
doing, you're going to reduce your number of citations that are
issued.
Senator Murray. Senator Isakson, I'm out of time.
Senator Isakson. Mr. O'Dell, it's good to see you again,
thank you for your testimony.
The recent report issued on the findings of the Sago Mine
disaster, did the mine workers or yourself have any comment on
those findings?
Mr. O'Dell. We believe that, if you look at the overall
picture, there were a lot of things that failed leading up to
the disaster. And, I think that's where we, and the agencies,
agree. We disagree on what caused the explosion, we put that in
our report, we don't believe lightening was the cause, but if
it was the cause, then there needs to be things put in place to
protect miners in the event that ever happened.
But, the bottom is that we, the State and the Federal
agencies have all agreed, there were a lot of failures that
occurred leading up to that, and we need to address those, such
as the seals, ventilation controls, proper training of miners,
SCSRs and those things.
Senator Isakson. Mr. Watzman, your comment on that?
Mr. Watzman. We did not prepare an independent report. We
have reviewed the reports of both the company, the State, and
MSHA, and recognize that there are some conflicting conclusions
in all of them, but there are areas of agreement.
Like Mr. O'Dell, many of those have been addressed by the
MINER Act, and the actions that MSHA is taking, in terms of
increasing the number of SCSRs that are provided underground,
increasing the training for miners on how to use and don an
SCSR, making that quarterly training now, more frequent drills
on evacuation training, frequency of understanding of escape
ways, both primary and secondary, so while we didn't prepare
our report, and if there are conflicts, we are in agreement
that there are issues that we--labor, and the Government--
support to prevent this in the event that there's another
occurrence like this.
Senator Isakson. Dr. Bessinger, I commend you and your
company on your attention to safety in the interest of your
miners and your company.
On the underground chamber that you were referring to, or
that was referred to in the testimony, I think you showed a
picture of that.
Mr. Bessinger. Yes.
Senator Isakson. Do you have surface access for--do you own
the land above the chambers, where you can access the surface,
directly?
Mr. Bessinger. No, we actually don't own the land, that
land is BLM land. We have access to that land, we don't
actually own it.
Senator Isakson. The reason I ask that is, in West
Virginia--the Senator from West Virginia can correct me--most
coal mines run under houses, roads, shopping centers,
privately-owned land, and are accessible by mineral rights,
which does not provide the type of access that you get, either
through ownership or the Bureau of Land Management's
permission, so every--as we promote that, and I really commend
you for doing it--I wish everybody had the access to being able
to drill straight down so that you could have fresh air come
in, have control over that land.
Mr. O'Dell, on the Self-Contained Self-Rescuers and the
docking system I heard the previous witness testify to--it
sounded to me like that development would have changed the
survivability time for the Sago miners, am I correct on that?
Mr. O'Dell. We actually spoke about that with Dr. Kohler at
our last MSHA meeting of the committee. And, the units that
they're looking at now very possibly could have helped those
miners survive. There were some problems with that, that we
asked them to look into, as far as caking on the bottom,
because there are chemicals involved, and so after we find out
if that's going to be a problem or not, we'll see if we can----
Senator Isakson. Very promising development, though, I
think.
Mr. O'Dell. Yes.
Senator Isakson. I was very excited to hear that, having
dealt with Senator Rockefeller and Senator Byrd, and the
tragedy of that one disaster--that, and the ability to
communicate in that particular accident were the two most
profound things that need to be addressed, at least the Self-
Contained Self-Rescuers docking device sounds like a real
breakthrough in terms of that.
Mr. O'Dell. If I may add, if I could--if you want to find
out what miners are thinking, do like I do. When this job gets
to the point that my head gets filled up with too much of the
bureaucracy and the red tape, I go back to where I used to
work, and I sit down on the miner, and I mine coal with my
buddies and put roof bolts in, if I was on the longwall, I cut
coal with a shear, pull shields in, shovel some coal on the
belt. And some of the things we talk about are some of the
things you're asking right now.
And when we talk about self-rescuers, miners are
encouraged, but part of the problem is, they see what
firefighters, and mine rescue team personnel have, when they
come to a mine site. And they have a full-faced mask that they
place on, and they're getting full oxygen, they're getting real
oxygen, rather than having to rely on a chemically-generated
piece of equipment.
So they ask, how come we can't get that kind of protection
as miners? And so we passed that along to the agencies to look
into that, as well. They can help you speak better because you
don't have anything in your mouth.
Senator Isakson. My time is up, thank you, Madame Chairman.
Senator Murray. Senator Rockefeller.
Senator Rockefeller. Thank you.
Dr. Bessinger, you said something which was interesting to
me, and is conflicting. You put down the phrase ``culture of
safety'' and that's very easy to say. It has not generally been
the practice of mining throughout the United States,
underground mining, in particular. But, nevertheless, you say
that. If you say that, couldn't you just say that companies are
following the rules and regulations that exist on the books,
and therefore you would be practicing the culture of safety, or
zero harm?
Mr. Bessinger. Well----
Senator Rockefeller. I think you would have to agree that
the legislation which is on the books, didn't need further
changing.
Mr. Bessinger. Well, I think--thank you for that question--
I would actually characterize that just a little bit
differently.
There has been a culture of compliance, where a company's
efforts, an operator's efforts are focused at compliance with
laws and regulations that are on the books. And then there is a
safety culture, where we all focus on the concept of zero harm.
Obviously, we always comply with the laws and regulations of
any jurisdiction in which we operate, but at the same time, we
go above and beyond that with this safety culture leading to
zero harm, and that involves the risk assessment and that
involves site-specific considerations for any given mine, its
unique concerns to address the safety issues that might appear.
Senator Rockefeller. That's just confusing to me, I don't
understand that. The zero harm, again--catchy, good. You're
happy to present that to us. But, if you compare yourself--I
don't know which of the two of you were talking about--do you
have a lot of coal mines overseas?
Mr. Bessinger. We have 100 operations through BHP
Billiton----
Senator Rockefeller. All right, well now, I'm just really
curious about that, because everything I've seen of coal mines
being run overseas, maybe not by you, is according to a
standard which we would have not approved of 50 years ago. Is
your standard of running over there--coal mines--exactly the
same as your standard here, assuming that the standard here is
sufficient? Is there no difference? Are they run exactly the
same way?
Mr. Bessinger. There is much overlap, I'm not sure I would
go so far as to say they're identical in every respect, because
from geographic location to location, the needs of complying
with the rules and regulations of any jurisdiction are
different, and we certainly comply in any jurisdiction where we
operate----
Senator Rockefeller. Can I just interrupt? Do you, Mr.
Watzman, and do you, Dr. Bessinger, believe in climate change,
and that we're going to have to do something about it in the
next 10 or 15 years--do you believe in it?
Mr. Bessinger. I'm not sure that I have an informed opinion
about that.
Senator Rockefeller. Well, then let me ask you this--you
may not--if you haven't, that's interesting, if you're in the
coal business, you ought to have done quite a lot of reading on
that. But, let me just pose this question to you--let's
supposing that you're not sure that the science is right, but
you're not sure that the science is wrong. Are you willing to
bet the farm on the fact that the science is wrong? What I'm
asking you is, in that, virtually all science says that that is
a problem, and it's a problem that we have to solve very
quickly, and it's a problem which will make all other problems
that we're dealing with in this, and other places around the
world, very marginal in importance, that means that all of a
sudden there's going to be a tremendous emphasis on energy
independence, getting away from oil, and mining a whole lot
more coal--that ought to be good news to you. Very, very good
news to you, because most of the coal in the East has declined
in its volume, the coal in the West, because people got there
before the Industrial Revolution is later--it's still there.
The quality of the coal is still good, but it doesn't make any
difference, it can still be made very effective.
Now, if you're faced with something like that, and you're
talking about zero harm, I'm confused about how you face the
future. You, Mr. Watzman, admitted no mistakes. You didn't
really give any sense at all that coal mines could be doing
something more than they're doing. And one of the things that--
and correct me if I need to be corrected--but one of the
things, it seems to me, in dialogues of this sort, which are
not under oath, but which have the effect of being under oath,
insofar as we're concerned, that if people who--and this
applies to the United Mine Workers, too, because the United
Mine Workers is not always perfect--that you tell us what we
need to know, not what you want us to hear.
This is always my worry, about when you're getting told--if
it's in the Government, you know it's not what they believe,
because the OMB has to approve every single word of every
single testimony that they say, so it's kind of a kabuki dance.
With you, it shouldn't be--here we're talking about life and
death, we're talking about probable global climate change
legislation coming out of this Congress over the next number of
years, which are going to provide you with the greatest benefit
that you ever had in your life.
And, what I have to have some confidence in is that you're
going to be able to deal with that--all of a sudden, a
tremendous influence on mining coal, which can be done cleanly,
and as cleanly as atomic energy, in fact, sequestration, other
carbon dioxide control methods that you can do it safely, that
you will do it safely, I have to know that.
Mr. Bessinger. Well, I certainly have no reservation about
making the commitment that coal can be mined safely, and that
were there to be future expansion of coal mining in the United
States that it certainly would be done safely and legally, in
full recognition of all of the relevant laws.
Senator Rockefeller. In other words, your point is, if it's
done under the existing laws, under the existing regulatory
bodies, that's, in a sense, zero harm?
Mr. Bessinger. Our version of zero harm is different than
that, our version of zero harm transcends the simple need for
compliance, and actually aspires to a higher goal.
Senator Rockefeller. I know, you said that, and I wasn't
really quite sure what you meant by that.
Mr. Bessinger. Well, what it means is that we use our
safety processes that we've developed elsewhere throughout our
company to achieve performance that exceeds that that would be
achieved by compliance acts alone.
Senator Rockefeller. Well, whatever that means, Madame
Chairman, I thank you for allowing me to sit----
Senator Murray. Absolutely.
Senator Rockefeller [continuing]. At your hearing, and I
thank the distinguished Senator from Georgia who, is not as
familiar with coal, but he is a rock-solid doer of good. After
his visit to West Virginia.
Senator Murray. Thank you very much, Senator Rockefeller. I
don't have any additional questions, Senator Isakson, do you?
Senator Isakson. No. Thank you.
Senator Murray. With that, then, we will conclude this
hearing, I want to thank all of our witnesses, and I would like
to ask unanimous consent for the hearing record to remain open
for 7 days for any additional materials.
With that, this committee is adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Enzi
Good morning. I want to thank Chairman Murray and Ranking
Member Isakson for holding this important hearing. Of the many
responsibilities with which this committee is charged, none is
more important than the responsibility to secure the job safety
of our Nation's workers, including those that work in the
mining industry.
When tragedy struck last year at the Sago Mine in the coal
fields of West Virginia, this committee acted swiftly, and in a
bipartisan manner, to understand what went wrong and what
changes needed to be made in our mine safety laws. Our first
step was to go to West Virginia, at the invitation of Senator
Rockefeller, so that we could meet the families of the 12
miners whose lives were lost, learn about the Sago mine
operation and talk directly with the MSHA officials who were
charged with enforcement in that district. On that trip with me
were Senators Kennedy, Isakson, and Rockefeller, as well as
Senator Murray's staff. All of us were deeply affected by what
we saw and heard in West Virginia. We returned to Washington
with a greater understanding of what was needed to enhance mine
safety and with a unified sense of commitment to the task at
hand.
Tragically, just as we returned to Washington and began
working on legislation, another accident occurred in West
Virginia at the Aracoma mine. It claimed two more lives. While
these twin tragedies were a terrible reminder of what can go
wrong in an underground coal mine, they also served to help set
clear priorities for legislation that would better protect
miners both immediately, and down the road. The product of
those legislative efforts was the MINER Act--the most
comprehensive reform of mine safety legislation in over a
generation. In the MINER Act we mandated that every coal mine
develop and continuously update emergency response and
preparedness plans that are designed to make mining accidents
more survivable. To date, all coal mines have submitted plans,
and a third of them are fully approved. These plans ensure that
every mine will be using the best technology available to
enhance surface to underground communication, to aid in the
location of underground personnel, and to provide additional
breathable air for miners that are trapped underground. The
MINER Act also encourages the development of better technology,
which is difficult to foster for such a small market. The act
enhances the mine safety research and development efforts of
the National Institute of Occupational Safety and Health,
encourages private sector technology development, and speeds
the approval of new equipment.
Because we worked in a bipartisan manner, we were able to
introduce this legislation and report it out of the HELP
Committee with unanimous support by mid-May; and to unanimously
pass the MINER Act in the Senate 1 week later. Two weeks later
it was approved by the House with an overwhelming margin of
support, and 1 week after that it was signed into law by the
President. In the 109th Congress, the MINER Act was 1 of 27
HELP Committee bills that were signed into law--a truly
remarkable number. As in all 26 other instances, we were able
to achieve passage of the MINER Act because we worked together
without regard to party designation.
Mining today is a highly specialized and technologically
complex industry. It is also one of our most heavily regulated
industries. Congress does not make changes to the Mine Safety
and Health Act either frequently or lightly and that kind of
legislative restraint is largely a good idea. Most of us in
Congress are not engineers or scientists, mining professionals
or technological geniuses that should be mandating specific,
one-size-fits-all requirements for enhancing mine safety. We
most certainly have the responsibility for setting the goals,
and overseeing the progress, but we must rightly leave the day-
to-day task of securing those goals in the hands of experts.
Thus, for the most part, Congress properly relies on the Mine
Safety and Health Administration and the mining experts at the
National Institute of Safety and Health to regulate the
industry and adjust those regulations to changes in the
industry and in technology. Those bodies to which Congress
delegates such important responsibility must be subject to
congressional oversight. Congress, for its part, however, must
be fair and rational in the exercise of that oversight. Since
the passage of the MINER Act, much has been accomplished in
making our Nation's mines safer. In this respect, the
collective efforts of miners and mine operators; and Federal
and State regulators are to be applauded. These efforts must
continue, and we should never be reluctant to level
constructive criticism where it is warranted. However, we
should not be leveling criticisms that are not grounded in fact
or logic. For example, MSHA should not be faulted for failing
to require the use of equipment which has not been developed or
which is not available in the marketplace; nor, should it be
faulted for moving too slowly on an issue when it is moving
within the time guidelines specifically set in the MINER Act.
This kind of criticism does little to advance the cause of mine
safety, and suggests that those who level such criticisms are
more concerned about partisan politics than sound policy.
Those of us that understand mining also understand that it
presents unique safety challenges. The problems are complex,
the solutions varied, and the risk of unintended consequence
substantial. In the MINER Act, we placed an emphasis on
developing practical and individual approaches that will better
protect miners immediately. We also mandated standards that
will be able to evolve with technology, and to encourage the
development of better miner-protecting technologies so that
this industry will not be allowed to fall behind progress. Such
approaches should continue through the regulatory process, and
we need to foster and encourage that result.
Thank you.
U.S. Department of Labor,
Mine Safety and Health Administration,
Arlington, Virginia 22209-3939,
May 8, 2007.
Hon. Robert C. Byrd,
Chairman,
Committee on Appropriations,
U.S. Senate,
Washington, DC. 20510-6025.
Dear Chairman Byrd: This is in response to your recent letter
regarding the implementation of the Mine Improvement and New Emergency
Response Act (MINER Act). I apologize for the delay in sending this
response; however, we wanted to provide the most up-to-date information
possible regarding our progress in implementing the MINER Act. Please
see the enclosed chart of our progress to date. I assure you that
significant progress has been made by the Mine Safety and Health
Administration (MSHA) and that the agency is working diligently to
fully implement the MINER Act.
I offer the following in response to the five concerns raised in
your letter.
MSHA has not fully approved any 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. To date, 160 ERPs have been fully approved and plan
provisions are in effect. MSHA inspectors are checking for compliance
during inspections.
For an ERP to be fully approved by MSHA's District Manager, the
operator's plan needs to provide MSHA adequate assurance of a miner's
ability to evacuate or survive an emergency. If the District Manager
determines that an operator has failed to meet the obligation to comply
with these requirements, the plan will not be approved by MSHA.
MSHA has found deficiencies in some operators' ERPs in the areas of
breathable air, redundant communication, post accident tracking, SCSR
storage, training, and/or local coordination. MSHA is promptly
requiring improvements to these plans. Should operators fail to submit
improved ERPs, MSHA will take enforcement action. Specifically,
operators will be issued a citation and the dispute concerning that
section of the ERP will be subject to the Federal Mine Safety and
Health Review Commission's (FMSHRC) formal dispute resolution process
as stipulated in Section 2 of the MINER Act.
MSHA has not approved any wireless communications and
tracking technology for use underground
New technologies for wireless communication and tracking are being
developed by industry with assistance from the National Institute for
Occupational Safety and Health (NIOSH), however no truly wireless
systems have been submitted to MSHA for approval. It is important to
note that, since the accidents of 2006, there has been more rapid
development of this technology. MSHA has communicated with interested
parties regarding 137 proposals for new communication and tracking
technologies. We have met with 49 of these parties, and conducted field
demonstrations of 19 systems.
Between January 2006 and April 27, 2007, MSHA received 51
applications for approval of communication and tracking systems.
Thirty-four applications are currently being reviewed, and 17 have
already been approved. Three approvals are new approvals, and 14 are
modifications to previously approved pager phones and leaky feeder
systems.
Based on the number of ongoing efforts with many interested
vendors, cooperative efforts with NIOSH and the grants issued by NIOSH
for the development of this technology, we expect to see a significant
increase in the number of new communication and tracking approval
requests in the months ahead.
Miners still do not have adequate oxygen supplies
underground
With implementation of the Emergency Temporary Standard for
Emergency Mine Evacuation and the Final Emergency Mine Evacuation rule,
the demand for SCSRs has exceeded the supply. The majority of the
devices preferred by mine operators are made by two of three
manufacturers. While there is a quantity of available SCSRs made by the
third manufacturer, MSHA agrees with the United Mine Workers of America
that mixing the types of devices in use at a mine does not promote
safety. Due to the backlog, MSHA has accepted purchase orders with a
delivery date from operators as a good faith effort to comply with the
MINER Act. MSHA has asked the SCSR manufacturers to give priority
consideration to operators who do not have two SCSRs for every miner
when filling orders. The manufacturers have pledged to do so.
Only 145 mine rescue teams are available to serve 481
active underground coal mines
Additional mine rescue teams have been formed. MSHA continues to be
proactive in terms of offering new teams training and training
materials, but ultimately it is the responsibility of operators to
create new teams. Currently, there are 153 mine rescue teams available
for response to 474 underground coal mines, and we anticipate that
other new teams will be formed as well. These teams are qualified,
well-equipped, and available for underground mine rescue, should the
need arise.
MSHA is currently drafting a rule to revise MSHA's existing
standards for mine rescue teams for underground coal mines. The mine
rescue team rule will strengthen training requirements and address
composition, availability, and certification requirements for coal mine
rescue teams. The proposed rule will be available later this spring for
public comment. The final rule is scheduled to be issued no later than
December 15, 2007, and we expect to meet that deadline.
MSHA still does not ensure that underground mines have
flame-resistant lifelines in escape ways
The Emergency Temporary Standard for Emergency Mine Evacuation and
the Final Emergency Mine Evacuation rule increased the demand for
flame-resistant lifelines. Flame-resistant lifelines are required upon
replacement of existing lifelines, no later than June 15, 2009. As the
result of the initial demand on lifeline manufacturers and resultant
backlog, MSHA accepted purchase orders for flame-
resistant lifelines, as a good faith effort to comply with the MINER
Act. Manufacturers have caught up on orders of lifelines and are now
supplying the industry with lifelines to keep pace with mines as they
advance underground. As a result, 97 percent of the Nation's active
underground coal mines have flame-resistant lifelines installed.
MSHA's staff continues to work diligently toward fulfilling the
agency's statutory responsibilities as quickly as possible. We will be
pleased to provide regular updates regarding MINER Act implementation.
Thank you for your commitment to improving the health and safety of
our Nation's miners.
Sincerely,
Richard E. Stickler,
Assistant Secretary for Mine Safety and Health.
MINER Act: Implementation Dates and Status
------------------------------------------------------------------------
Description of Task Status**
------------------------------------------------------------------------
SEC. 2. EMERGENCY RESPONSE
------------------------------------------------------------------------
Develop and adopt an Emergency Response MSHA issued Program Policy
Plan (ERP) that contains provisions for Letters P06-V-8 on 07/21/
post-accident communications and 06; P06-V-9 on 08/04/06;
tracking; post-accident breathable air; P06-V-10 on 10/24/06
lifelines; training; and local implementing the Emergency
coordination. Response Plan (ERP)
provisions in section 2 of
the MINER Act.
Update plans periodically................. MSHA issued breathable air
guidance on 2/8/07 in
Program Information
Bulletin No. P07-03.
ERPs submitted to MSHA by 08/
14/06.
MSHA has partially approved
90 percent of ERPs. Once
the breathable air
provisions are fully
implemented, ERPs can be
fully approved.
------------------------------------------------------------------------
Post-accident communications and tracking. MSHA issued a Request for
Information on 01/25/06
soliciting proposals for
new communication and
tracking technology. MSHA
is sharing results of
evaluation and testing with
NIOSH. MSHA is evaluating
submitted proposals,
assisting in arranging
demonstrations, observing
testing at various mine
sites, meeting with
communication and tracking
system company
representatives, and
communicating with parties
interested in developing a
mine communication and/or
tracking system.
Between January 2006 and
April 27, 2007, MSHA
received 51 applications
for approval of
communication and tracking
systems. Thirty-four
applications are currently
being reviewed, and 17 have
already been approved.
Three approvals are new
approvals, and 14 are
modifications to previously
approved pager phones and
leaky feeders systems.
MSHA issued PIB P07-01 on 01/
18/07 addressing the use of
Global Positioning Systems
during storms.
------------------------------------------------------------------------
Post-accident breathable air for MSHA published an RFI on 8/
maintenance of individuals trapped 30/06; comments received 10/
underground. 10/06.
MSHA issued PIB P07-03 and
associated compliance
materials containing
options for providing post-
accident breathable air to
underground coal miners on
02/08/07.
Mine operators were required
to submit a portion of the
ERP addressing breathable
air by 3/12/07; as of May
8, 2007, MSHA has fully
approved 160 ERPs including
breathable air provisions.
The National Mining
Association has challenged
breathable air guidance in
DC Circuit Court.
Mine operators must
implement breathable air
provisions 60 days after
MSHA approval of ERP.
------------------------------------------------------------------------
Post-accident, flame resistant, Required in emergency mine
directional lifelines. evacuation final rule
published 12/08/06. The
final rule requires that
lifelines be made of flame-
resistant material upon
replacement, and that all
lifelines be flame-
resistant no later than
June 15, 2009.
------------------------------------------------------------------------
Training program for emergency procedures. Required in emergency mine
evacuation final rule
published 12/08/06.
------------------------------------------------------------------------
Local coordination and communication Required in Emergency
between the operators, mine rescue teams, Response Plan.
and local emergency response personnel.
------------------------------------------------------------------------
Emergency Response Plan approval and Required to be submitted to
review. MSHA by 8/14/06 and every 6
months thereafter.
------------------------------------------------------------------------
SEC. 4. MINE RESCUE TEAMS
------------------------------------------------------------------------
Provides certification, composition, and MSHA drafting proposed rule.
training requirements for underground Final rule due 12/14/07.
coal mine rescue teams.
------------------------------------------------------------------------
SEC. 5. PROMPT INCIDENT NOTIFICATION
------------------------------------------------------------------------
Requires operator to notify MSHA within 15 Included in Emergency Mine
minutes of a death or an injury or Evacuation (published on 12/
entrapment, which has a reasonable 08/06). Civil Penalties
potential to cause death. final rule published on 3/
22/07; final effective 4/23/
07.
MINER Act penalties are
currently being assessed.
------------------------------------------------------------------------
SEC. 7. REQUIREMENT CONCERNING FAMILY LIAISONS
------------------------------------------------------------------------
MSHA to be liaison and primary Assistant Secretary for MSHA
communicator with families of victims and was assigned responsibility
primary communicator with mine operators, for developing Family
the press, and the public. Liaison Program on 11/02/
06.
MSHA issued PPL P06-V-11 on
family liaison and primary
communicator on 12/22/06
implementing section 7 of
the MINER Act.
MSHA is developing policy to
be implemented as a part of
accident investigation
handbook.
Training completed for 14
designated MSHA personnel.
------------------------------------------------------------------------
SEC. 8. PENALTIES
------------------------------------------------------------------------
Revise existing rule to increase minimum MSHA issued PIL 106-111-02
penalties for unwarrantable failure implementing new minimum
citations and orders; and ``flagrant'' civil penalties on 08/29/
violations. 06; and 106-111-04
establishing procedures for
evaluating ``flagrant''
violations on 10/26/06.
Proposed rule published on
09/08/06; Public hearings
held during September and
October 2006.
Final rule published on 03/
22/07; final rule effective
04/23/07.
------------------------------------------------------------------------
SEC. 10. SEALING OF ABANDONED AREAS
------------------------------------------------------------------------
Requires increase of 20 psi standard for MSHA issued PIBs
sealing of abandoned areas in underground establishing a temporary
coal mines. moratorium on new seal
construction until the
agency issued subsequent
guidance for addressing
alternative seals: PIB-06-
11 issued 06/01/06; PIB-06-
12 issued 06/12/06; PIB-06-
14 issued 06/21/06; PIB-06-
16 issued 07/19/06. Seal
strength for alternative
seals was increased to 50
psi under this PIB. Final
rule due 12/14/07.
MSHA issued PIL 106-V-09 on
08/21/06 establishing
procedures for agency
approval of ventilation
plans that include
alternative seals. MSHA has
approved one plan that
included alternative seals
and has approved a number
of others provisionally.
MSHA will continue to work
with NIOSH on research and
testing of seals,
particularly full-scale
testing of seals at higher
explosion pressures.
NIOSH draft report issued 02/
09/07. MSHA does not know
when final report is due.
------------------------------------------------------------------------
SEC. 11. TECHNICAL STUDY PANEL
------------------------------------------------------------------------
Establish Belt Air Technical Study Panel Belt Air Technical Study
to provide review and recommendations on Panel established 12/20/06.
the use of belt air and the composition 1st meeting held on January
and fire retardant properties of belt 9-10, 2007.
materials in underground coal mining. 2nd meeting held on March 28-
30, 2007.
3rd meeting scheduled for
May 16-18, 2007.
Procedures and timetable
established. Relevant
documents posted on MSHA's
Web site.
------------------------------------------------------------------------
Submit a report to the Secretaries of Panel report due 12/20/07.
Labor and HHS and to the Congress.
------------------------------------------------------------------------
Provide a response to Congress describing Secretary's response due 6/
the actions that the Secretary intends to 20/08.
take base on the report and the reasons
for such actions.
------------------------------------------------------------------------
SEC. 13. RESEARCH CONCERNING REFUGE ALTERNATIVES
------------------------------------------------------------------------
Conduct research, including field tests, MSHA will share with NIOSH
on the utility, practicality, data collected as a result
survivability, and cost of refuge of MSHA's RFI, published 01/
alternatives in an underground coal mine 25/06, and other MSHA/NIOSH
environment. public meetings, including
03/13/06 meeting on mine
rescue communication and
tracking technology and 4/
18/06 meeting on Mine
Escape Planning and
Emergency Shelters.
------------------------------------------------------------------------
Issue report to Congress concerning its NIOSH report due 12/15/07.
research results.
------------------------------------------------------------------------
Provide response to Congress describing MSHA response due 6/15/07.
the actions that the Secretary intends to
take based on the report, including
proposing regulatory changes.
------------------------------------------------------------------------
EMERGENCY MINE EVACUATION RULE
------------------------------------------------------------------------
MSHA issued final rule, effective On 03/30/07, MSHA issued
immediately, on 12/08/06 finalizing notice on SCSR training
emergency temporary standard providing units which now must be
improved protections for emergency mine used. National Mining
evacuation. Association has challenged
the final rule in the DC
Circuit. SCSR training
units must be purchased by
April 30, 2007; operators
must provide this training
by June 30, 2007.
------------------------------------------------------------------------
** PIB = Program Information Bulletin.
PIL = Procedure Instruction Letter.
PPL = Program Policy Letter.
RFI = Request for Information.
MSHA Actions to Enhance Mine Safety
Mine Improvement and New Emergency Response (MINER) Act: On June
15, 2006, the President signed the MINER Act into law. MSHA's actions
to implement the act include:
An Emergency Temporary Standard on Mine Seals: On May 22,
2007, MSHA published in the Federal Register an ETS to increase
protection for miners who work in underground mines with sealed off
abandoned areas. Although Section 10 of the MINER Act gives MSHA until
December 2007 to issue a new standard on mine seals, MSHA has concluded
that, based on its accident investigations of the Sago and Darby mine
explosions, MSHA's in-mine seal evaluations, and recent reports on
explosion testing and modeling, immediate action is necessary to
protect miners. This ETS goes beyond the MINER Act--which requires that
the standard on mine seals be greater than the 20 psi established in
1992--to include requirements to strengthen the design, construction,
maintenance and repair of seals, as well as requirements for sampling
and controlling atmospheres behind seals.
A Final Rule on Civil Penalties: After passage of the
MINER Act, MSHA immediately implemented increased penalties for late
accident notification and unwarrantable failure violations. On March
22, 2007, MSHA published a final rule to increase civil penalty amounts
for mine safety violations. Issuance of this rule goes beyond the
requirements of the MINER Act and demonstrates the commitment of MSHA
to protect the safety and health of our Nation's miners. MSHA has
already issued 13 citations for flagrant violations, including three of
the largest proposed penalties in the history of the agency.
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 mines
and contractors:
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 nonsignificant and substantial (non-S&S)
violations.
Approval of Emergency Response Plans: MSHA is reviewing
and approving Emergency Response Plans mine operators are required to
implement under the Act. Plans must address post-accident
communications, tracking, and increased air supplies for trapped
miners.
Mandated Post-Accident Breathable Air: On February 8,
2007, MSHA issued a Program Information Bulletin (PIB) providing mine
operators guidance concerning acceptable ways to fulfill the breathable
air requirements in the MINER Act. Options for providing acceptable
quantities of breathable air for trapped miners are:
(1) Drilling boreholes within 2,000 feet of the working sections of
mines;
(2) Having 48 hours of breathable air located within 2,000 feet of
working sections coupled with contingency plans for drilling boreholes
if miners are not rescued within 48 hours;
(3) Having 96 hours of breathable air within 2,000 feet of working
sections; or
(4) Other options that provide equivalent protection.
Established Family Liaisons: On November 2, 2006, the
Secretary of Labor signed an Order establishing the Family Liaison and
Primary Communicator positions. MSHA has trained 14 family liaisons.
The National Transportation Safety Board and the American Red Cross
have helped train these individuals.
Belt Air: The Belt Air and Conveyor Belt Materials
Technical Study Panel required under the act has held three meetings:
The first was held January 9-10, 2007 in Washington, D.C.; the second
March 28-30 in Pittsburgh, PA; and the most recent one May 16-17 in
Salt Lake City, UT. A fourth is scheduled for June 20-22 in Birmingham,
AL. As required by the MINER Act, the Panel will publish its report by
December 20, 2007.
Refuge Alternatives: MSHA is working with NIOSH and the
States to explore refuge alternatives for trapped miners. 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. As an interim step, MSHA is
accepting State-approved refuge chambers as a means of providing
breathable air for trapped miners.
Underground to Surface Communications Systems in Coal
Mines: As of May 2, 2007, MSHA has met with representatives of 49
communications and tracking system companies, observed the testing or
demonstration of 20 post-accident communications and tracking systems,
and approved 19 systems, including four new devices.
Brookwood-Sago Grants: MSHA has identified resources in
its fiscal year 2007 budget to develop a pilot program. MSHA expects to
award approximately half a million dollars through this demonstration.
Final Rule on Mine Evacuation: On December 8, 2006, MSHA issued a
final rule to strengthen mine evacuation practices in four key areas.
The rule was based on an Emergency Temporary Standard (ETS) issued by
MSHA on March 9, 2006.
Self-Contained Self Rescue (SCSR) Devices: The rule
requires coal mine operators to provide additional SCSRs for each miner
underground in areas such as working places, on mantrips, in
escapeways, and where outby crews work or travel. The rule also
requires that they be readily accessible in the event of an emergency.
Multi-Gas Detectors: The rule goes beyond the requirements
of the MINER Act by requiring coal mine operators to provide multi-gas
detectors to miners working alone and to each group of miners.
Lifelines: The rule requires coal mine operators to
install directional lifelines in all primary and alternate escape
routes out of the mine. Lifelines help guide miners in poor visibility
conditions toward evacuation routes and SCSR storage locations.
Training: The rule requires coal mine operators to conduct
quarterly training for miners in how to don SCSRs and especially how to
transfer from one SCSR to another at a cache location. SCSR training
units for annual expectations training have now been developed. On
March 30, 2007, 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 30th
and must conduct training with them within 60 days of receipt of the
units.
Accident Notification: The rule requires all mine
operators to ``immediately contact'' MSHA after an accident within 15
minutes of its occurrence.
New Mine Inspectors: MSHA has hired 117 new enforcement personnel
staff and is on schedule to hire 170 new coal mine enforcement
personnel by September 30, 2007. Once on board, these 170 new
enforcement personnel will provide MSHA more coal enforcement personnel
than at any point since 1994.
Prosecution of Bad Actors: Since February 2006, MSHA has filed five
precedent-setting lawsuits seeking injunctions against mine operators
who have chronically failed to pay assessed civil money penalties for
violations of the Mine Act. Two have been settled and the others are
nearing favorable resolution. On May 15, 2007, MSHA filed a case in the
6th Circuit Court of Appeals to enforce payment of $146,000 in overdue
civil penalties.
Special Emphasis Programs: Beginning in February 2007, MSHA
initiated special emphasis inspection programs in southern West
Virginia and eastern Kentucky to examine roof control plans and roof
support methods in mines that use retreat mining methods.
Special Health Emphasis Program: In February 2007, MSHA conducted a
nationwide targeted Special Health Emphasis enforcement program to
ensure operator compliance with the applicable respirable dust
standard. Over 1,130 dust samples were collected from February 20 to
March 3, 2007, at 61 selected underground coal mines in all 11 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 percent of the
enforcement actions were designated as Significant & Substantial (S&S).
Pattern of Violations: MSHA has recently initiated the development
of objective criteria to identify mines that may have a pattern of
violations. Once this new criteria are in place, MSHA plans to issue
pattern of violations notices and orders where warranted.
Stand Down For Safety: During the week of April 16, 2007, MSHA
asked metal/nonmetal mine operators to take a brief ``time-out'' to
meet with their employees and contractors to discuss practical accident
preventative measures. MSHA inspectors, personnel from MSHA Educational
Field Services, and individuals from the MSHA Small Mines Office
continue to visit mines to distribute materials that address hazard
identification and reporting, safety gear use, job planning, job set
up, job procedures, and tool choice. MSHA also provided operators with
technical help investigating root causes of accidents, including
communications issues, human factors, and supervisory procedures.
______
BHP Billiton,
San Juan Coal Company,
Waterflow, New Mexico,
June 18, 2007.
Hon. Patty Murray, Chair,
Subcommittee on Employment and Workplace Safety,
U.S. Senate,
113 Hart Building,
Washington, DC.
Dear madame Chair: On behalf of BHP Billiton, I want to thank you
for the opportunity to testify at the subcommittee's hearing of May 22,
2007 on the topic of ``Promises or Progress: The MINER Act One Year
later.'' It was my great honor and pleasure to provide you with the
views of BHP Billiton on this critically important topic and to provide
you with information about our safety and health programs.
The additional purpose of this letter is to supplement my prepared
statement in light of questions from Senator Rockefeller about my
comments that our program at the San Juan Underground Coal Mine is
designed not only to ensure that we comply with the requirements of the
Federal Mine Safety and Health Act of 1977 (as amended by the MINER
Act), but also that they are aimed at achieving safety results beyond
compliance with Federal mine safety regulatory requirements.
More specifically, in my prepared statement, I said that:
Our bottom line is that at any BHP Billiton site, we seek to
create a mindset and an environment where people believe it is
possible to work injury-free and everyone understands they are
empowered to manage safe production by stopping work at any
time they feel the activity is unsafe. This occurs regardless
of where they are in the world, what role they undertake, or in
which business they work. We call this objective Zero Harm.
(Emphasis added.)
Senator Rockefeller's skeptical questions are not unusual or
unexpected. However, we want to assure the subcommittee that Zero Harm
is serious business for our company. Indeed, Zero Harm is part of our
overarching Sustainable Development Policy (see www.bhpbilliton.com/
bbContentRepository/sdpolicy.pdf) aimed at creating sustainable value
for our shareholders, employees, contractors, suppliers, customers,
business partners, and host communities. More specifically, as you can
see from ``Our Future State, Achieving Zero Harm in Safety,'' (see
www.bhpbilliton.com/bbContentRepository/nmc.pdf) among the principles
of Zero Harm is that effective safety leadership is a prerequisite for
promotion; compliance with safety standards and procedures is absolute;
``at risk'' behaviors are not acceptable and are addressed when
observed; and repeat incidents are evidence of an out-of-control
operation.
To provide in-depth support for our goal of Zero Harm, BHP Billiton
has developed a number of protocols, standards, and guides all of which
are provided to our employees and are available to the public on our
Web site, www.bhpbilliton.com. These are discussed further below, with
specific Web site preferences. Thus, our ``Fatal Risk Control
Protocols'' were developed through work groups made up of individuals
from across BHP Billiton with extensive experience in operations,
following a review of our past fatalities and significant incidents.\1\
The Protocols establish minimum performance expectations for managing
the risk areas identified at leading practice levels. However, the
existence of these Protocols does not presume coverage of all risk
areas faced by our operations. These other risk areas are addressed
through the risk management process that is a key element of the BHP
Billiton ``Health, Safety, Environment and Community Management
Standards.'' \2\
---------------------------------------------------------------------------
\1\ See, http://www.bhpbilliton.com/bb/SustainableDevelopment/
safety/fatalRisk ControlProto
cols.jsp.
\2\ See http://bhpbilliton.com/bbContentReportinq/docs/
PeopleandEmployment/Business Con
ductGuide.pdf.
---------------------------------------------------------------------------
Our ``health, safety, environment and community policy'' is also an
integral part of BHP Billiton's ``Guide to Business Conduct,'' which
defines the basic principles of business conduct demanded of each and
every BHP Billiton employee.\3\
---------------------------------------------------------------------------
\3\ See http://bhpbilliton.com/bbContentReporting/docs/
PeopleandEmployment/BusinessCon
ductguide.pdf.
---------------------------------------------------------------------------
To conclude, across BHP Billiton, our line managers are accountable
for implementation of the standards, systems, and procedures we have in
place to achieve Zero Harm. We are confident that these standards and
associated systems and procedures are the right ones, and have directed
our efforts toward the effective and consistent implementation of these
throughout the Company.
In sum, in our drive to achieve Zero Harm we have learned that:
Low injury frequency rates do not necessarily mean low
fatality rates--we cannot and should not draw any comfort from low
injury rates in terms of our capacity to eliminate fatalities;
Injury reduction programs alone will not prevent
fatalities--a complementary focused effort is required on fatal risk--
this is why we have implemented our Fatal Risk Control Protocols;
Our fatalities often have similar underlying causes;
High near-miss reporting often correlates with declining
injuries or fatalities--our ability to take heed of the signals from
near-miss events is crucial to our efforts in eliminating fatalities;
Leadership visibility in the field is vital--our current
state of safety maturity relies heavily on leadership energy to deliver
improved performance;
Effective contractor management is essential; and
Hazard identification and risk awareness are fundamental
to success.
With particular regard to the San Juan Underground Coal Mine and
our New Mexico Coal Operations, please find attached our ``New Mexico
Coal Sustainability Report--2006.'' You will see that it provides
important information and benchmarks about how our protocols,
standards, and guides are implemented at our New Mexico Operations.
We sincerely hope that this supplemental information is responsive
to the questions raised.
Thank you again for your interest in our miners' safety. BHP
Billiton is ready and willing to advise and assist you as you continue
to examine mine safety issues.
Very truly yours,
S. L. Bessinger, Ph.D., P.E.,
Engineering Manager,
BHP Billiton San Juan Underground Mine.
[Whereupon, at 11:32 a.m., the hearing was adjourned.]