[Senate Hearing 111-812]
[From the U.S. Government Publishing Office]
S. Hrg. 111-812
INVESTING IN MINE SAFETY: PREVENTING ANOTHER DISASTER
=======================================================================
HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
MAY 20, 2010--WASHINGTON, DC
__________
Printed for the use of the Committee on Appropriations
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COMMITTEE ON APPROPRIATIONS
DANIEL K. INOUYE, Hawaii, Chairman
ROBERT C. BYRD, West Virginia THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont CHRISTOPHER S. BOND, Missouri
TOM HARKIN, Iowa MITCH McCONNELL, Kentucky
BARBARA A. MIKULSKI, Maryland RICHARD C. SHELBY, Alabama
HERB KOHL, Wisconsin JUDD GREGG, New Hampshire
PATTY MURRAY, Washington ROBERT F. BENNETT, Utah
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
DIANNE FEINSTEIN, California SAM BROWNBACK, Kansas
RICHARD J. DURBIN, Illinois LAMAR ALEXANDER, Tennessee
TIM JOHNSON, South Dakota SUSAN COLLINS, Maine
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
FRANK R. LAUTENBERG, New Jersey
BEN NELSON, Nebraska
MARK PRYOR, Arkansas
JON TESTER, Montana
ARLEN SPECTER, Pennsylvania
Charles J. Houy, Staff Director
Bruce Evans, Minority Staff Director
------
Subcommittee on Departments of Labor, Health and Human Services, and
Education, and Related Agencies
TOM HARKIN, Iowa, Chairman
DANIEL K. INOUYE, Hawaii THAD COCHRAN, Mississippi
HERB KOHL, Wisconsin JUDD GREGG, New Hampshire
PATTY MURRAY, Washington KAY BAILEY HUTCHISON, Texas
MARY L. LANDRIEU, Louisiana RICHARD C. SHELBY, Alabama
RICHARD J. DURBIN, Illinois LAMAR ALEXANDER, Tennessee
JACK REED, Rhode Island
MARK PRYOR, Arkansas
ARLEN SPECTER, Pennsylvania
Professional Staff
Erik Fatemi
Mark Laisch
Adrienne Hallett
Lisa Bernhardt
Bettilou Taylor (Minority)
Sara Love Swaney (Minority)
Jennifer Castagna (Minority)
Administrative Support
Teri Curtin
C O N T E N T S
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Page
Opening Statement of Senator Tom Harkin.......................... 1
Statement of Hon. Joseph A. Main, Assistant Secretary of Labor
for Mine Safety and Health, Mine Safety and Health
Administration, Department of Labor............................ 3
Prepared Statement of........................................ 5
Statement of Hon. M. Patricia Smith, Solicitor of Labor,
Department of La-
bor............................................................ 11
Prepared Statement of........................................ 13
Statement of John Howard, M.D., Director, National Institute for
Occupational Safety and Health, Centers for Disease Control and
Prevention, Department of Health and Human Services, Atlanta,
Georgia........................................................ 15
Prepared Statement of........................................ 17
Statement of Mary Lu Jordan, Chairman, Federal Mine Safety and
Health Review Commission, Washington, DC....................... 22
Prepared Statement of........................................ 23
Statement of Senator Robert C. Byrd.............................. 29
Prepared Statement of........................................ 30
Statement of Don L. Blankenship, Chairman and CEO, Massey Energy
Company, Richmond, Virginia.................................... 38
Prepared Statement of........................................ 40
Statement of Cecil E. Roberts, International President, United
Mine Workers of America, Fairfax, Virginia..................... 44
Prepared Statement of........................................ 46
Additional Committee Questions................................... 66
Questions Submitted to Hon. Joseph A. Main....................... 66
Questions Submitted by Senator Tom Harkin........................ 66
Questions Submitted to John Howard............................... 84
Questions Submitted by Senator Thad Cochran...................... 84
Questions Submitted by Senator Robert C. Byrd.................... 85
Letter From Patton Boggs LLP..................................... 86
INVESTING IN MINE SAFETY: PREVENTING ANOTHER DISASTER
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THURSDAY, MAY 20, 2010
U.S. Senate,
Subcommittee on Labor, Health and Human
Services, and Education, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 2:05 p.m., in room SD-106, Dirksen
Senate Office Building, Hon. Tom Harkin (chairman) presiding.
Present: Senators Harkin, Byrd, and Murray.
opening statement of senator tom harkin
Senator Harkin. The Labor, Health, Human Services,
Education, and Related Agencies Appropriations Subcommittee
will now come to order.
The tragic loss of 29 lives and the two serious injuries at
the Upper Big Branch mine in West Virginia is what brings us
together this afternoon. Our hearts and prayers go out to their
families, coworkers, and friends.
As the son of a coal miner, I feel their loss.
While Upper Big Branch was the catalyst for this hearing,
we understand that investigations into this disaster are under
way, and we will not ask the witnesses to comment on anything
that could hinder those investigations. What we will discuss is
how we can improve the safety and health of our Nation's
miners.
This subcommittee has taken the lead, over the past several
years, in adding resources to the budgets of Federal agencies
that are charged with this critical responsibility. Much of
that credit belongs to Senator Byrd, who asked that we hold
this hearing and will be joining us shortly. He is a true
champion for West Virginia and coal miners everywhere.
Over the past 2 years, additional funding provided by this
subcommittee has enabled the Mine Safety and Health
Administration (MSHA), to conduct 100 percent of its required
safety and health inspections for the only time in its history,
resulting in record low fatality rates in the mining industry.
In fact, in 2009, the number of fatalities in coal mines
reached a low of 18. To put that in perspective, when my father
was a coal miner in Iowa, there were more than 3,000 mining
fatalities every year.
However, as the number of inspections went up, so did the
number of citations. And, increasingly, mine operators have
chosen to contest those citations rather than to pay them. In
2006, operators contested roughly 7 percent of citations. Last
year, they contested more than 25 percent.
As a result, the appeals process has become backlogged at
the Federal Mine Safety and Health Review Commission (FMSHRC),
a situation that enables repeat offenders to avoid paying
penalties or being placed on ``pattern of violations'' status.
That backlog needs to be reduced, and I'm here to say, it will
be reduced.
Last year, at the request of Senator Byrd, this
subcommittee funded the hiring of four new judges at the
FMSHRC. In addition, last week, the Appropriations Committee
marked up a supplemental spending bill that includes $22
million to help the FMSHRC and the Department of Labor (DOL)
process more cases and modernize its operations. We will
discuss this in more detail later in this hearing.
We will also hear from the National Institute for
Occupational Safety and Health (NIOSH) about the investments
this subcommittee has made in research and technology,
particularly regarding communications devices, the
effectiveness of mine rescue chambers, and the state of
research into methane gas explosions.
And we will explore how the funding can best help create
the culture of safety that we need to protect our Nation's
miners.
These efforts go hand in hand with work I'm doing to
improve mine safety on the authorizing side, as chairman of the
HELP Committee. I held a mine safety hearing in that Committee
3 weeks ago and am working on legislation that will ensure that
MSHA has the tools it needs to effectively enforce the law and
keep our workplaces safe.
I will keep the record open for any opening statements by
our Ranking Member, Senator Cochran. And we'll go into our
first panel.
Now, let me say, at the outset, that we have a vote at 2:30
p.m. I will have to recess the subcommittee at that time for
several minutes while we go over to vote on the cloture vote.
But, then we will come back and resume our hearing, shortly
thereafter.
We have two panels today. For our first panel I'll
introduce all the witnesses, and then we'll open it for
statements our first panel. Mr. Joseph Main, has served as
Assistant Secretary of Labor for Mine, Safety, and Health since
October 2009. Mr. Main began working in the mines in 1967; in
1974 he began his career with the United Mine Workers of
America (UMWA); in 1982 he was appointed the administrator of
the UMWA Occupational Health and Safety Department--a position
he held for 22 years.
Ms. Patricia Smith has served as the Solicitor of Labor
(SOL) since March of this year. Prior to becoming the SOL, Ms.
Smith was a New York State Commissioner of Labor. And prior to
that, Ms. Smith served as chief of the Labor Bureau in the New
York State Attorney General's office, a position she held since
1999.
Dr. John Howard has served as the Director of NIOSH since
July 2002. Prior to this, Dr. Howard was the chief of the
Division of Occupational Safety and Health in the California
Department of Industrial Relations.
Ms. Mary Lu Jordan has served as chairman of the FMSHRC
since August 2009; also served as chairman of the FMSHRC from
1994 to 2001, and as a commissioner from 2001 to 2009.
So, we welcome all of you. I thank you all for your written
statements. I've gone over those beforehand. But, what I'd like
to ask first of all, all your statements will be made a part
for the record in their entirety. I would ask if you could
each, as we go in line, if you could sum up, in 5 or 6 minutes,
the main thrust of your statement, I would appreciate that. And
then we can get into a discussion.
So, Mr. Main, welcome I would say ``back to the
subcommittee,'' but I guess you appeared before my other
Committee 3 weeks ago. So, welcome to this subcommittee. Please
proceed, Mr. Main.
STATEMENT OF HON. JOSEPH A. MAIN, ASSISTANT SECRETARY
OF LABOR FOR MINE SAFETY AND HEALTH, MINE
SAFETY AND HEALTH ADMINISTRATION,
DEPARTMENT OF LABOR
Mr. Main. Thank you, Mr. Chairman.
Chairman Harkin and Vice Chairman Cochran, and members of
the subcommittee, I want to thank you for the opportunity to
appear before the subcommittee today and speak about the
efforts that MSHA has made in the wake of the disaster at the
Upper Big Branch mine.
I want, again, to express my deepest condolences to the
families, the friends, and the coworkers of the 29 miners who
perished in the Upper Big Branch mine on April 5. I have been
having quite a few meetings with the families to understand
what their concerns are. our prayers are with them.
Some have said the Nation should expect and accept a
certain number of fatalities every year in coal mining. We, at
the DOL and MSHA, do not agree with that. And we believe that
the tragedy at the Upper Big Branch mine did not have to
happen.
Given that this is an appropriation hearing, I understand
that we will be discussing an increase in MSHA's budget. But, I
want to make very clear, however, the needs are more than
money. No matter what resources the Congress is willing and
able to appropriate, MSHA cannot be in every mine, every day,
on every shift, nor should it be. It is the responsibility of
mine operators to comply with the MINE Act and mandatory health
and safety standards to avert injury, disease, and death. And
only when we change the culture of safety throughout the mining
industry, and all mine operators live up to their
responsibilities, will all miners be safe.
The resources are critically important. The additional
resources that the subcommittee appropriated for MSHA, in the
wake of Sago, Darby, and Aracoma explosions and fires, made an
important contribution to increasing mine safety in this
country. And the additional inspectors hired meant that, for
the first time in years, MSHA has been able to complete all its
mandated inspections. The actions of this Congress are very
important.
But, we need new resources, including new enforcement tools
to leverage the improved inspection capability into a
meaningful deterrent for operators, like Massey, that choose
not to take their responsibility for the safety of its miners.
Some of the new tools we intend to use are directed at creating
incentives for operators to improve safety practices to prevent
fatalities and injuries. Our goal is to create a system in
which mine operators find and fix violations and abate
hazardous conditions. We will propose a rule to reinstitute the
requirement for preshift examinations for violations of all
mandatory health or safety standards. And we'll solicit
information on requiring the use of comprehensive health and
safety management programs.
Improving protection for whistleblowers would be an
important tool in identifying dangerous practices and
violations before fatalities and injuries occur. Miners must
feel free to identify problems and insist that they be fixed,
without fear of reprisal.
MSHA must also have subpoena power to obtain information
for timely investigations. The rules and adjudicative
procedures to compel operators to remedy hazards must be
strengthened. These include redesigning the Pattern of
Violations Program and reducing the backlog at the FMSHRC. We
have begun the process of redesigning how the Pattern of
Violations Programs will work in the future and making it more
effective. We have asked the FMSHRC to expedite review of high
priority cases that will help us establish pattern of
violations status for chronic bad actors. We're also issuing
new regulations to simplify the criteria for placing mines into
the Pattern of Violation Program. In addition, we will address
the backlog by making the citation process more objective and
consistent and improving the conferencing system. My colleague,
SOL, Patricia Smith, will describe other efforts that MSHA and
her office are undertaking to improve the adjudication of cases
before the FMSHRC.
We believe that these measures will have a positive effect
on reducing the backlog. The President has committed to
reducing the case backlog, and we appreciate that you share
this priority.
We also appreciate that you recognize that, to the extent
that funding is provided to increase the number of FMSHRC
judges, additional resources are needed for DOL to effectively
bring cases before these new judges. In providing those
resources, it is important that the DOL have the flexibility to
determine the optimal mix of SOL and MSHA staffing and
sufficient time to train and deploy the new staff.
MSHA also needs the flexibility to ratchet up the power of
our enforcement tools when we are dealing with the worst of the
worst. As the laws stand now, we have limited civil and
criminal tools to bring chronic scofflaws to justice. I am
gratified that the Justice Department is pursuing a serious
criminal investigation into the events that led to the Upper
Big Branch mine disaster. We have learned, in the wake of the
Upper Big Branch mine disaster, that our resources--our
resource needs are not limited to our enforcement activities.
MSHA needs additional tools to respond to mine emergencies,
including funding for investigations, hearings, and public
forums examining the Upper Big Branch disaster. This will
likely be the most extensive and costliest investigation in the
history of MSHA, and we need to ensure that it is done well and
does not drain resources from other critical enforcement
activities.
MSHA mine rescue teams must be equipped to respond quickly
and effectively, when time is of the essence, in reaching
possible survivors of a mine explosion, fire, or entrapment. I
saw firsthand the need for better communications systems during
the rescue at Upper Big Branch. MSHA also lacks the necessary
inventory of portable testing equipment, such as gas
chromatographs, to be able to examine a mine's atmosphere. MSHA
must also strengthen logistical emergency response capabilities
in the Western United States.
Another issue is the need for MSHA to make organizational
changes in southern West Virginia, an area with the highest
concentration of underground coal mines in the Nation. MSHA is
considering a plan to split district 4 into two separate
management and administrative functions. Another critical need
MSHA hopes to meet is human testing of refuge chambers that
miners may need to rely on in an emergency, that was part of
the new MINER Act.
prepared statement
In closing, I appreciate the steps that the Senate
Appropriations Committee took last week in providing
supplemental appropriations for mine safety, and look forward
to working in the development of your regular appropriations
bill. We owe it to our brave miners to do everything we can to
ensure that they come home safely at the end of every shift.
Again, I appreciate the opportunity to appear here today,
and look forward to working with this subcommittee.
Thank you.
[The statement follows:]
Prepared Statement of Joseph A. Main
Chairman Harkin, Vice Chairman Cochran, and members of the
subcommittee: Thank you for the opportunity to appear as a witness
before this subcommittee and speak to you about the efforts of the Mine
Safety and Health Administration (MSHA) to protect the health and
safety of the Nation's miners. I am joined today by Solicitor of Labor
(SOL) Patricia Smith, who will be testifying about the role of the SOL
in enforcing the Nation's mine safety and health laws, and in
particular about the backlog of cases pending before the Federal Mine
Safety and Health Review Commission (FMSHRC).
I would like to once again express my deepest condolences to the
families, friends and co-workers of the 29 miners who perished in the
Upper Big Branch (Upper Big Branch) mine on April 5, 2010, as well as
the surviving miners. Our prayers are with all of them.
The Upper Big Branch mine explosion was the worst mining disaster
since the creation of MSHA by the Federal Mine Safety and Health Act of
1977, and the deadliest mining disaster this Nation has experienced in
nearly 40 years. This tragic event is a call to action. As the
President said of the 29 miners who lost their lives on April 5, ``we
owe them more than prayers. We owe them action. We owe them
accountability. We owe them an assurance that when they go to work
every day, when they enter that dark mine, they are not alone. They
ought to know that behind them there is a company that's doing what it
takes to protect them, and a government that is looking out for their
safety.''
Every worker has a right to a safe and healthy workplace. And every
worker has a right to go home at the end of his or her shift and to do
so without a workplace injury or illness. Workplace fatalities--even in
an industry like underground coal mining--are preventable. No one
should die for a paycheck.
Some have said this Nation should expect and accept a certain
number of fatalities every year in coal mining. The Department of Labor
(DOL) and the MSHA could not disagree more strongly. Explosions in coal
mines are preventable. The tragedy at the Upper Big Branch mine did not
have to happen. It is the failure of mine operators to comply with the
Mine Act and mandatory health and safety standards that can and does
lead to injury, disease and death. We believe the history of repeated
serious violations both at this mine and others throughout this country
demonstrates that there are operations where mine management weighs the
costs and benefits of complying with the law, rather than making
responsibility for the safety and health of its miners their first
priority. I welcome the opportunity to discuss with the subcommittee
how we can work together to change this calculus.
events at upper big branch
First, I would like to share with you a short summary of what
happened on April 5, 2010 at Performance Coal Company's Upper Big
Branch Mine--South (Upper Big Branch) in Montcoal, West Virginia. The
mine operator of Upper Big Branch is Massey Energy Company, whose CEO,
Don Blankenship, will be testifying on the next panel. We know that
there was a catastrophic explosion in the mine at a shift change at
approximately 3 p.m. The explosion killed miners in and around two
working sections of the mine and those traveling from the working
sections at the end of their shifts.
In less than 3 hours, rescue teams were underground, responding to
the disaster. Due to the extensive damage from the explosion, however,
the rescue teams had a difficult time proceeding in the mine. Within 10
hours of the disaster, rescue teams had found 25 of the victims.
Dangerous conditions in the mine delayed and hampered continuing rescue
and recovery efforts. Mine rescue teams attempted to again enter the
mine on April 7, 8, and 9. Each time they were forced to exit before
the final four miners were found. Finally, on the evening of April 9,
they were able to enter and found the final four miners. While we were
able to recover all the victims, we are still working to ventilate the
mine so that it is safe enough to enter the area of the explosion and
conduct our physical investigation.
While the cause of this specific explosion is still being
determined, most mine explosions are caused by accumulations of
methane, which can combine with combustible coal dust mixed with air.
Historically, blasts of this magnitude have involved propagation from
coal dust that becomes suspended in the air following an initial blast.
I understand that this is an appropriations hearing and we will be
discussing an increase in MSHA's budget, but the needs are more than
money. No matter what level of resources the subcommittee is willing
and able to appropriate for MSHA, MSHA cannot be in every mine, every
day, on every shift. Nor should it. It is the mine operator's
responsibility to provide a safe mine and to protect its miners whether
an MSHA inspector is standing in that mine or not. Only when we change
the culture of safety in the mining industry--and when all mine
operators live up to their responsibilities--will all miners be safe.
That is not to say that resources--both legal and fiscal--are not
important. They are critically important. MSHA must have the resources
and tools it needs to support its efforts to hold accountable mine
operators who are not living up to their moral and legal responsibility
to maintain a safe mine.
The additional resources that this subcommittee appropriated for
MSHA in the wake of the Sago and Darby explosions and the Aracoma fire
made an important contribution to increasing mine safety. The
additional inspectors that MSHA has hired since 2006 has meant that for
the first time in years MSHA has been able to complete all its mandated
inspections. We are finding more violations and requiring mine
operators to abate them.
enforcement at upper big branch and msha's current enforcement tools
Since the Upper Big Branch disaster we have taken a new look at how
we use our resources and tools and we are trying to use them as
creatively, efficiently, and effectively as possible. For example,
between April 19 and April 23, MSHA conducted blitz inspections at
underground coal mines with a history of significant and/or repeat
violations of safety standards involving mine ventilation, methane,
failure to conduct or adequately document examinations, and/or rock
dusting. As a result, through use of enforcement tools that permit MSHA
to close the areas of mines affected by particular hazards, we required
six underground mines in Kentucky to suspend production until the
violations were corrected. At those six mines, MSHA issued 238
citations, 55 orders, and 1 safeguard. At the mines we blitzed
nationwide, MSHA issued 1,339 citations, 109 orders, and 6 safeguards.
Finally, we have sued two of the six Kentucky mines for illegally
providing advance notice of MSHA inspectors' presence at the mine.
MSHA's history in the Upper Big Branch mine also demonstrates the
kind of heavy presence that a beefed-up inspector corps allows MSHA to
have at a troublesome mine. MSHA engaged in a multi-year effort to use
the tools we had available to force Massey Energy to comply with the
law and turn around its extensive record of serious safety and health
violations at the Upper Big Branch mine. From 2007 until today, MSHA
has steadily increased its enforcement presence at Upper Big Branch
mine. In 2007, MSHA inspectors were on-site at Upper Big Branch mine a
total of 934 hours. In 2009, inspectors were on-site at the mine for a
total of 1,854 hours.
During all those hours of inspections, MSHA found and issued an
increasing number of citations for ``significant and substantial''
(S&S) violations of the Mine Act, including an alarming number of
citations and orders requiring miners to be withdrawn from the mine. In
December 2007, MSHA informed the mine it could be placed into a
``pattern of violations'' status if it did not take steps to reduce its
significant and substantial violations. If implemented, pattern of
violations status would have given MSHA a powerful enforcement tool,
enabling the agency to order the withdrawal of miners from any area
with S&S violations until such violations were fixed. However, Massey
was able to successfully avert these consequences by reducing the
levels of serious violations thereby avoiding being classified in a
``pattern of violations'' status.
Upper Big Branch mine again experienced a significant spike in
safety violations in 2009. MSHA issued 515 citations and orders at the
mine in 2009 and another 124 to date in 2010. MSHA issued fines for
these violations of nearly $1.1 million; although most of those fines
are being contested by Massey.
The citations MSHA has issued at Upper Big Branch have not only
been more numerous than average, they have also been more serious. More
than 39 percent of citations issued at Upper Big Branch in 2009 were
for S&S violations. In some prior years, the S&S rate at Upper Big
Branch has been 10-12 percent higher than the national average.
In what is perhaps the most troubling statistic, in 2009, MSHA
issued 48 withdrawal orders at the Upper Big Branch mine for repeated
actions that violated safety and health rules. Massey failed to address
these violations over and over again until a Federal mine inspector
ordered it done. The mine's rate for these kinds of violations is
nearly 19 times the national rate.
needed reforms and resources
As you can see, MSHA is doing what Congress instructed it to do
with the post-Sago increase in resources. It is inspecting mines and
issuing citations for the violations it finds. When I came on the job
in October, I made a commitment to do it better, more forcefully, and
smarter. As I mentioned earlier, however, citations and orders alone
will not solve the problems that we face. We need resources--both legal
and fiscal--to leverage those citations and orders into a meaningful
deterrent for operators like Massey that choose not to take
responsibility for the safety of its miners.
Now, I would like to share with the subcommittee what we are doing
to make our enforcement efforts as effective as possible and what
Congress can do to support those efforts and remove existing obstacles.
First, I believe that we must create incentives for operators to
improve safety practices to prevent fatalities and injuries. To achieve
this goal, we need a system in which mine operators have programs and
procedures in place to fix violations and abate hazardous conditions.
Our spring regulatory agenda is focused on regulations that will
require companies to take responsibility to find and fix problems
before they are discovered by MSHA.
Thus, we will be proposing a rule to reinstitute the requirement
for pre-shift examinations for violations of mandatory safety and
health standards in areas of underground coal mines where miners work
or travel. I have been telling the mining industry since I became
Assistant Secretary of Labor for MSHA that they must take more
responsibility for the safety and health of the miners at their mines.
That starts with fulfilling their responsibility to inspect their mines
to make sure they are operating in compliance with the mine safety and
health laws and regulations.
In addition, we announced that we are moving forward to solicit
information on requiring the use of a comprehensive health and safety
management program in the mining industry. We believe that these
measures will help prevent unsafe and unhealthy conditions from
threatening workers.
Next, we must improve our ability to identify dangerous practices
and violations before fatalities and injuries occur. MSHA is not (and
cannot be) in every mine, every day, on every shift. That is why it is
so important for workers to have a voice in raising concerns with their
employer or reporting conditions to MSHA without fear of reprisal, and
for MSHA to have more tools to deal with mine operators who engage in
``catch me if you can'' tactics. Just last month, concerned individuals
demonstrated the importance of the role of workers and the public in
addressing safety concerns, when they notified MSHA inspectors in three
separate anonymous complaints about hazardous conditions at three
Massey-owned coal mines in West Virginia. Especially troubling is that
one of the complaints came just days after the explosion at Upper Big
Branch Mine. At one mine, the anonymous complaint reported that Massey
was unlawfully running two continuous miners on a single split of air,
violating its MSHA-approved mining plan by removing more coal than
authorized, and failing to report several face methane ignitions (small
explosions) to MSHA. Another anonymous complaint at a different mine
reported water blocking an escapeway used to evacuate the mine in
emergencies. When MSHA made unexpected inspections in the evening, and
in two cases captured the mine phones preventing calls underground to
warn of the inspection, inspectors found a number of illegal mining
practices. Those included: mining of coal several feet beyond legal
limits; mining without air movement to prevent mine explosions and
exposure to dust levels that can cause black lung; inadequate rock
dusting, which is a critical protective measure to prevent coal dust
explosions; blocking of miner escapeways by accumulated water;
inadequate mine examinations by the mine operator; and mine roof
conditions exposing miners to roof fall hazards. Following each
investigation, MSHA issued several closure orders requiring the
withdrawal of miners from designated areas of those mines until the
hazards were abated and it issued multiple citations for serious
violations.
Clearly, laws protecting miners who want to come forward need to be
strengthened. While someone came forward in these three cases, too many
others will not or cannot out of fear of endangering their jobs and
their families' livelihoods. A number of current and former Massey
employees have publicly stated that miners at Upper Big Branch who
reported hazards to the company or MSHA risked losing their jobs,
sacrificing pay, or suffering other adverse actions. While we will
thoroughly investigate these troubling claims, we also need to examine
how we can change the law to put these fears to rest.
Miners must feel free to identify problems and insist they be fixed
without fear of reprisal. MSHA must have the tools it needs to obtain
information for timely investigations when miners report hazardous
conditions, as well as the tools to protect miners who are
discriminated against for reporting such conditions or otherwise
exercising their rights under the Mine Act. MSHA must also have
increased tools to respond to the ``catch me if you can'' mine
operators who blatantly disobey the law, exposing miners to injury,
illness and death when they think or know MSHA will not be there.
Next, we must improve the rules and adjudicative procedures to
compel operators to remedy hazards. As you know, the President has
committed to reducing the large and growing case backlog at the FMSHRC.
The well-documented shortcomings of the current pattern of violations
process and the unconscionable backlog of cases at the FMSHRC
demonstrate that it is too easy for even the worst offenders to avoid
the heightened enforcement status envisioned by Congress.
Following my confirmation as Assistant Secretary of Labor for Mine
Safety and Health, fixing the pattern of violations program became a
top priority. Since the Upper Big Branch disaster, we have spent a
considerable amount of time at MSHA reviewing pattern of violations, as
well as the other tools available to MSHA to enforce the law. It has
become clear to me that we need bold action by both MSHA and the
Congress to solve this problem.
The pattern of violations program has received a great deal of
attention in the aftermath of the Upper Big Branch disaster. MSHA has
the authority to place a mine into a ``pattern of violations''
category, which under current policy is based on a number of criteria
including the number of serious violations the operator has amassed
within a 24-month timeframe. If a mine ends up in a ``pattern of
violations'' status, MSHA can issue withdrawal orders for every serious
violation until each violation is fixed. The ``pattern of violations''
program should be one of MSHA's most serious and effective tools for
holding bad actors, like Massey Energy, accountable, but it is not.
MSHA's experience at the Upper Big Branch mine demonstrates the
program's limitations under current procedures.
Massey Energy employed a popular tactic at Upper Big Branch used by
mines with troubling safety records to avoid potential pattern of
violations status. Massey Energy contested large numbers of their
significant and substantial citations. In calendar year 2009, the
Massey Energy Company received proposed penalties that totaled in
excess of $13.5 million, and contested $10.5 million of those
penalties, or 78 percent. MSHA uses only final orders to establish a
pattern of violations. It takes more than 600 days for the average
contested citation to reach the ``final order'' stage from the day the
citation is written. The delay is due largely to a more than 16,000
case backlog at the FMSHRC.
Even if an excessive contest strategy fails and a mine ends up in a
``potential pattern of violations'' status, an operator can almost
always avoid the ultimate ``pattern of violations'' label with
temporary improvements in safety. The current system allows an operator
to avoid going into a pattern of violations status if the operator
reduces its S&S violations rate by more than 30 percent within 90 days
or brings it below the national average for mines of similar type and
size. Upper Big Branch mine did this in 2007 and avoided a pattern of
violations status by reducing S&S violation rate by 30 percent, even
though its number of S&S violations remained above the national
average. The policies this administration inherited make it relatively
easy for operators like Massey to avoid pattern of violations status.
In fact, MSHA has been able to place only one mine into pattern of
violations status since passage of the 1977 Mine Act, and that order
was revoked when two of the violations on which it was based were
thrown out through the contest process.
We realize the current pattern of violations program is broken and
must be fixed. As I said, we believe that there are two components to
fixing the problem: (1) redesigning the program, and (2) reducing the
FMSHRC backlog. I believe that both MSHA and the Congress have a role
to play in addressing each component.
MSHA has already begun the process of redesigning how the pattern
of violations program will work in the future and making the program
more effective. We are asking the FMSHRC to expedite its review of
cases whose adjudication to final order status is necessary to get bad
actor operators into pattern of violation status. In addition, in our
regulatory agenda, we announced that we will be issuing new regulations
to simplify the criteria for placing mines into the pattern of
violations program. There are fundamental challenges in the pattern of
violations program that may need legislative fixes and I look forward
to working with the Congress on developing those.
As it now stands, the backlog at the FMSHRC is a major impediment
to the effective use of the pattern of violations program and to MSHA's
ability generally to hold mine operators accountable for safety and
health violations. As of May 5, 2010, there were approximately 16,000
cases and 89,000 violations pending before the FMSHRC in some phase of
the penalty contest process. There are approximately $209 million in
contested fines pending. The average case takes more than 600 days to
resolve from the time a violation is issued. I believe that we need
regulatory, legislative, and budgetary action to solve this problem.
At a hearing before the House Education and Labor Committee on
February 23 of this year, I outlined specific measures MSHA was
considering to address the backlog problem. I do not believe that an
increase in litigation alone can resolve the backlog problem. That's
why we are moving to improve the cases we bring to the FMSHRC and how
we handle them once they are there. We will make the citation process
more objective and consistent by simplifying the citation and penalty
determination process and improving related training, improving the
conferencing system, making greater use of the ``closeout'' inspection
meeting after mine inspections, continuing to develop training programs
and materials to aid mine operators with compliance and pursuing
corporate-wide holistic settlements that require operators to implement
meaningful health and safety programs.
In addition, we look forward to working with Congress to change the
incentives for mine operators to contest violations, such as requiring
mine operators to put significant penalty amounts in escrow or to
impose pre-judgment interest on penalties. We also hope that the FMSHRC
and Congress will consider ways to simplify the FMSHRC's processes. We
also hope that these changes will slow down the rate of cases going
into the FMSHRC's pipeline.
As long as it exists, the backlog diminishes the system of
protections the Mine Act was designed to provide. It is an incentive
for the ``business as usual'' attitude among operators who chose to
contest violations as a cost of doing business instead of taking a
proactive and responsible role in making their mines safer. The
perception that a penalty can be delayed or settled on highly favorable
terms because of the huge caseload at the FMSHRC encourages behavior
that will cause the backlog to grow.
To the extent that funding is provided to increase the number of
FMSHRC judges additional resources will be needed for SOL and MSHA to
staff the litigation and litigation support to effectively bring cases
before these new judges. For example, if resources were provided to
immediately increase the number of judges at the FMSHRC to 26, then the
SOL and MSHA would require roughly an additional $26.6 million above
the fiscal year 2010 appropriation and the President's 2011 budget
request.
While we believe an approach that tries only to litigate our way
out of the backlog would be unworkable, combined with additional
reforms, more resources for taking cases to trial would both reduce the
backlog and enhance the effectiveness and implementation of other
reforms. In providing those resources, it is important that the DOL
have the flexibility to determine the optimal mix of SOL and MSHA
staffing to scale-up FMSHRC litigation and case resolution and to
adjust to changes in the mix of cases before the FMSHRC. And in order
for the DOL to use new resources most effectively, we must be given
enough time to train and deploy any new staff.
MSHA also needs the flexibility to ratchet up the power of our
enforcement tools when we are dealing with the worst of the worst. As
the law stands now, we have limited civil and criminal tools to bring
chronic scofflaws to justice. I am gratified to know that the Justice
Department is pursuing a serious criminal investigation into the events
that led to the Upper Big Branch mine disaster. However, this isolated
criminal investigation, which is still in its early stages, should not
fool us into thinking that the Mine Act's criminal and significant
civil penalties are sufficient.
Stronger civil and criminal penalties are needed to make sure that
mine operators are not allowed to knowingly or persistently put the
lives of miners at risk. These penalties should extend to individuals
at all levels of management who make decisions about the safety of
miners. Making these kinds of changes will serve as a powerful
deterrent against making decisions that put miners at risk. I look
forward to working with the Congress on developing these ideas.
msha's operational and emergency response needs
Improving the health and safety of miners in light of both the
lessons highlighted and the many questions raised by the Upper Big
Branch disaster is not limited to the area of enforcement and legal
reform. MSHA supports the provision of resources for a number of other
needs critical to eliminating the most immediate risks to miners and
for ensuring that MSHA can effectively respond to mine emergencies.
One immediate need is to find out what happened at Upper Big
Branch. We need to know what happened in that mine on April 5, but we
also need to understand in the broadest sense how this could have
occurred. We anticipate the investigations, hearings and public forums
examining the Upper Big Branch disaster and the surrounding
circumstances will be the most extensive and the costliest
investigation in the history of MSHA. The accident investigation team
is gathering evidence in advance of public hearings to examine the
cause or causes of the explosion. MSHA will also conduct a public forum
for family members to offer their thoughts about the explosion, the
response, the investigation, and potential reforms, as well as a town
hall style meeting to exchange ideas about health and safety at mining
operations and to gather recommendations. In addition, MSHA will
conduct an internal review and will have that internal review
independently evaluated by a team selected by the National Institute
for Occupational Safety and Health. MSHA needs to be able to provide
the resources for all these activities without negatively impacting its
ability to continue its regular enforcement activities, like its
statutory inspections.
MSHA needs better capabilities in responding effectively in mine
emergencies, particularly when miners are trapped underground, and has
identified some important needs. MSHA and mine rescue teams must be
equipped to respond as quickly and effectively as possible when time is
of the essence in reaching possible survivors of a mine explosion,
fire, or entrapment. I have participated in numerous mine emergency
responses in the time I have worked in the mining industry. The Upper
Big Branch disaster was my first as Assistant Secretary. I was at
MSHA's mobile operations center at the Upper Big Branch mine, and saw
firsthand the need for better communications systems to coordinate
rescue efforts and exchange information and data while in the field. As
in this case, mine rescues often occur in rural areas where cellular
service does not work and time is of the essence in securing
communication between the command center, the mine, and areas where
boreholes are being drilled in an effort to contact trapped miners or
improve air ventilation. MSHA also lacks the necessary inventory of
portable testing equipment such as gas chromatographs, used to process
air readings from a mine during an emergency, and the ability to
transfer copies of mine maps and other technical data.
MSHA supports funding for placing caches of essential equipment at
all of the coal districts along with first response teams to further
improve MSHA's response time to emergencies. MSHA also sees a strong
need to strengthen our logistical emergency response capabilities in
the Western United States at our Price, Utah and Denver, Colorado
facilities with better vehicles and communication and other equipment.
There is more to be done regarding MSHA's mine emergency response
capability. The American people expect the Government to be responsive
and effective in such emergencies, and, as I described above, the most
recent tragedy revealed some areas where MSHA needs additional
resources in order meet that expectation.
Another issue is the need for MSHA to make organizational changes
in southern West Virginia to ensure its existing resources get optimal
use in an area with the highest concentration of underground coal mines
in the Nation. Coal mine safety in southern West Virginia is covered by
MSHA's Coal Mine Safety and Health District 4. MSHA is considering a
plan to split district 4 into two distinct districts with separate
management and administrative functions, and whether MSHA can better
carry out its oversight of mine safety if it makes such a change. Of
the Nation's 11 coal districts, district 4 has the most employees and
the most significant workload with the smallest ratio of supervisory
staff to line employees. Its workload is almost 50 percent higher than
the next busiest district in many key indicators such as contested
citations and plan approvals. In order for management to best be able
to spot problem or potentially problematic mines and react
responsively, it would seem that dividing this district into two
districts of better manageable sizes would be the best approach.
Another critical need MSHA hopes to meet is testing of the refuge
chambers miners rely upon if trapped underground in a mine emergency.
When Congress passed the MINER Act in 2006 after the Sago disaster it
required underground coal mines to install what are commonly referred
to as refuge chambers, where miners would have available breathable
air, food, and water until help could arrive from the surface. The
implementation of this requirement was a significant improvement in
mine safety. However, some of the more common commercially available
units have not been tested for human survivability. Such testing for
survivability in extreme conditions such as heat from geothermal
sources or a fire is a high-priority need.
conclusion
I appreciate the action that the Senate Appropriations Committee
took last week in providing supplemental appropriations and I look
forward to working in the development of your regular appropriations
bill to ensure that we keep the President's promise to have the Federal
Government do everything it can to improve worker safety. Our Nation's
brave miners go to work every day to provide electricity to our homes
and our businesses. We owe it to them to do everything we can to ensure
that every miner--and every worker--comes home safely at the end of
every shift.
Again, I appreciate the opportunity to appear here today, and look
forward to working with the subcommittee.
Senator Harkin. Thank you very much, Mr. Main.
Now we'll turn to our Solicitor of Labor, Ms. Smith.
STATEMENT OF HON. M. PATRICIA SMITH, SOLICITOR OF
LABOR, DEPARTMENT OF LABOR
Ms. Smith. Chairman Harkin, thank you for inviting me here
today to discuss a matter of great concern to me, which is the
role of the Solicitor's office in holding mine operators
accountable and the resources that my office needs to do that
job effectively.
But, as Assistant Secretary Main testified, the problem is
fundamentally a health and safety problem. Mine operators must
do a better job of eliminating unsafe conditions in the first
place. If MSHA inspectors can find violations, then mine
operators should be able to find them also, and fix them before
there are injuries and deaths.
Since the 2006 passage of the MINER Act, and since MSHA's
penalties increased in 2007, as you noted, many mine operators
have dramatically increased their rate of penalty contests and
citation contests. Mine health and safety is poorly served when
the system is overwhelmed by high contest rates and cases are
not decided promptly. But, as Assistant Secretary Main said,
the problem can't be fixed simply by litigating out of it;
other reforms are needed as well.
I want to recognize and thank the subcommittee for their
work last week in moving closer to supplemental funding for the
DOL and the FMSHRC. We understand that a single judge can
dispose of approximately 500 cases a year. Our own statistics
show that, under the current litigation process, the DOL uses
approximately 14 employees for each judge. That includes the
Solicitor's office, attorneys, MSHA conference litigation
representatives, and support staff. So, to the extent that the
FMSHRC is funded for additional judges, the SOL's office and
MSHA will need a corresponding increase in resources.
If resources were provided to immediately increase the
number of judges at the FMSHRC to 26, the SOL's office and MSHA
would require, roughly, additionally, $26.6 million above the
fiscal year 2010 appropriation and the President's 2011 year
budget request. With any supplemental appropriation, we would
request the flexibility to adjust the ratio of Solicitor's
attorneys, MSHA personnel, and support staff, based on the mix
of cases before the FMSHRC. Also, hiring, training, and
deploying attorneys and CLRs will require time. Ideally, we
would like any new funds to be made available over a period of
time. That will enable us to use the funds in the most
efficient and cost effective way possible.
I've gone into greater detail in my written testimony
regarding what goes into the case preparation and to explain
why MSHA litigation is so resource intensive. But, to fix the
backlog problem over the long run, we're going to need new
tools, and I'd like to discuss a few of them.
First, I'd like to note that the FMSHRC published, in the
Federal Register this morning, a proposed rule on simplified
case proceedings. And I fully support the concept of
simplifying the FMSHRC's adjudicatory proceedings. I believe
that streamlining the process in appropriate cases will help
the Solicitor's office and MSHA use their resources more
efficiently to resolve cases more quickly.
In addition, we've supported a number of legislative
reforms that would help improve the backlog and improve mine
safety. Subpoena power in routine investigations in inspections
is one reform that would greatly assist us. Another reform
would clarify the proof needed to establish that a violation is
significant and substantial. Under current FMSHRC case law,
such a violation is difficult and resource intensive for us to
prove. Still other reforms could provide financial
disincentives for operators to contest cases by requiring them
to put penalty amounts in escrow or to prepay or to pay
prejudgment interest on final penalty amounts.
We also support reforms in the pattern of violation
process. MSHA's regulatory agenda includes a rulemaking to
revise the way MSHA determines what's happening in pattern of
violation cases.
In the meantime, we have begun to file motions to expedite
cases before the FMSHRC. We hope that expediting appropriate
cases will remove another incentive that operators have to
contest violations. And, for the first time, we're working with
MSHA to identify appropriate cases in which to file for
injunctive relief against mines with a pattern of violations.
In addition, I support MHSA's plans to revise its penalty
rules to simplify the categories on which penalties are based,
such as the degree of operator negligence and the degree of
gravity of the violation. By simplifying the penalty assessment
process, we expect to see fewer issues on which MSHA and the
operators can disagree and fewer contested citations.
And there are some things that SOL can do to provide
incentives not to contest cases. Operators must be dissuaded
from contesting citations simply because they believe they can
get their penalties reduced. In appropriate cases, we therefore
may ask for an increase in penalties in litigation so that
operators understand that there are significant disincentives
for filing frivolous contests, especially in penalty cases.
I thank you for the opportunity to testify today.
Resources are an important part of the problem, but so are
the other issues that I talked about.
[The statement follows:]
Prepared Statement of M. Patricia Smith
Chairman Harkin, Vice Chairman Cochran, and members of the
subcommittee: Thank you for inviting me here today to discuss a matter
of great concern to me: the role of the Solicitor's Office in holding
accountable those mine operators who do not live up to their moral and
legal responsibility to ensure mine workers' safety and health and the
resources the Solicitor's Office (SOL) needs to carry out that role
effectively.
This problem is, fundamentally, a safety and health problem. The
Mine Safety and Health Administration (MSHA) cannot be present at every
mine at all times, nor should it be. Mine operators are the ones on the
front lines of safety and health efforts, and they must do a better job
of eliminating unsafe conditions in the first place. If MSHA inspectors
can find violations, then mine operators should be able to find them,
too--and fix them before they produce worker injuries and illnesses.
As you've heard, MSHA has used the additional funding you've
provided during the past several years to hire more inspectors, which
has enabled the agency to perform 100 percent of its statutorily
mandated inspections and to conduct spot inspections and special
emphasis programs. With more inspections, MSHA has found more
violations and issued more citations. It also has assessed higher
penalties as a result of statutory and regulatory penalty increases. At
the same time, however, many mine operators have dramatically increased
their contest rates, which has resulted in delayed adjudications and
mounting case backlogs.
As you know, the President has committed to reducing the large and
growing case backlog at the Federal Mine Safety and Health Review
Commission (FMSHRC). Miner safety and health is poorly served when the
system is overwhelmed by high contest rates and cases are not decided
promptly. Backlogs and delays impede justice and dilute the deterrent
effect that Congress intended civil penalties to have. But while
litigation may have created the backlog, it cannot, by itself,
eliminate it. As Assistant Secretary of Labor for Mine, Safety, and
Health, Joseph Main said, this problem can't be fixed simply by adding
more money for lawyers, judges, and MSHA personnel to settle and
litigate cases.
You asked me to provide information regarding resources needed to
support the anticipated increase in the number of administrative law
judges of the FMSHRC. According to the FMSHRC's fiscal year 2011 budget
request, a single judge can dispose of approximately 500 cases a year.
Our own statistics show that, under the current litigation process, the
Solicitor's Office utilizes approximately seven attorneys for each
judge--and that does not include resources that MSHA expends on
FMSHRCcases using its conference litigation representatives (CLRs).
To the extent that the FMSHRC is funded for additional judges, the
Solicitor's Office (SOL) and MSHA will need a corresponding increase in
resources. For example, if resources were provided to immediately
increase the number of judges at the FMSHRC to 26, then the SOL and
MSHA would require roughly an additional $26.6 million above the fiscal
year 2010 appropriation and the President's 2011 budget request. With
any supplemental appropriation, we would request that Congress provide
us with the flexibility to adjust the ratio of SOL attorneys and
support staff and MSHA CLRs and support staff based on the mix of cases
before the FMSHRC.
While we would begin to use any new resources promptly, hiring,
training, and deploying attorneys and CLRs will require time. Ideally,
we would want any new funds to be made available over a period of time
that will enable us to use the funds in the most efficient, cost-
effective way possible, or to have an understanding that any down
payment in a supplemental appropriation would be followed by the
resources in the regular appropriation to address what is clearly a
multi-year process. As we begin to implement improvements in the way we
handle FMSHRC cases, which would be designed, at least in part, to
achieve greater efficiencies, we would hope to need fewer resources.
Let me tell you a little about the process so that you can
appreciate the workload involved.
Each FMSHRC case typically involves a number of citations issued to
an operator during a single inspection or related inspections. Each
contested citation must be litigated separately, including the
violation itself, any special findings, and the proposed penalty. Our
attorneys research and investigate each item and often find it is
necessary to consult with MSHA inspectors and experts just to
understand the unique worksites and the technologically complex
processes that are at issue.
Our attorneys also prepare and file with the FMSHRC all necessary
legal documents, including the petition, answers to notices of contest
and motions. They also engage in settlement talks, discuss settlement
offers with MSHA, and draft and file motions to approve settlements.
Until a case has settled, however, our attorneys must still do all the
things necessary to prepare for trial, including identifying, locating,
interviewing, and evaluating witnesses--including expert witnesses--as
well as obtaining and analyzing ventilation or roof control plans, mine
maps, dust samples, inspector notes, and photographs.
Discovery--which takes place outside of court and generally without
the involvement of a judge--can be especially time-consuming. A judge's
order setting discovery deadlines may take the judge a few minutes to
prepare, but conducting the actual discovery--preparing
interrogatories, requests for production of documents, and requests for
admissions, responding to operator requests, and preparing for and
defending depositions--can take weeks and sometimes months. Depositions
themselves usually require costly, time-consuming travel.
Of course trial preparation--drafting pretrial motions, preparing
witnesses, negotiating with opposing counsel--is also resource
intensive, and actual trials can last days and usually involve travel.
Some trials require even larger amounts of time. For example, recently
we went to trial on a case in which we litigated 29 separate
significant and substantial violations in an attempt to establish that
a Massey mine--the Tiller Mine--should be put on a pattern of
violations. Six attorneys have worked more than 1,000 hours on that
case, and more work may be required once a decision is issued.
In addition to their own caseloads, SOL attorneys train CLRs and
supervise their cases. We train MSHA inspectors in subjects such as
evidence and courtroom procedures. And we analyze, in advance, all
cases in which MSHA is considering individual agent liability, a
``flagrant'' designation, or a pattern of violations designation.
More judges may, of course, be part of the backlog solution, but
only if they are accompanied by more CLRs and SOL attorneys--and only
if we have enough time to train and deploy them. To fix the backlog
problem over the long run, we will need other tools as well. I'd like
to discuss a few of them:
--Simplified Commission Proceedings.--I support fully the concept of
simplifying the Commission's adjudicatory proceedings, which
Chairman Jordan mentioned. Streamlining the process in
appropriate cases can help reduce the backlog by resolving them
quickly and efficiently.
--Legislative Reforms.--We support a number of legislative reforms
that could help reduce the backlog and improve mine safety and
health. Subpoena power in routine investigations and
inspections is one reform that would allow us more easily to
obtain the evidence we need to resolve cases quickly. Another
reform could clarify the proof needed to establish that a
violation is ``significant and substantial.'' Under current
FMSHRC case law, such a violation is difficult and resource-
intensive for us to prove. Still other reforms could provide
financial disincentives for operators to contest cases by
requiring them to put penalty amounts in escrow while their
cases are pending, or to pay pre-judgment interest on final
penalty amounts.
--Revise the Pattern-of-Violations (POV) Process.--MSHA's Spring
Regulatory Agenda includes a rulemaking to revise the way MSHA
determines whether an operator has committed a pattern of
violations. The proposed rule would reduce the current
incentive for operators to contest violations in order to avoid
final orders that count toward a pattern of violations. MSHA
also is considering revising its internal policies for
identifying operators for a potential pattern. SOL will work
with MSHA to craft these new rules and policies. We also
believe that legislative changes to the POV process may be
necessary to make it more useful as a tool to address problem
behavior in a more timely way, and look forward to exploring
those changes with the Congress.
--Develop Better Cases.--Good evidence, of course, is the key to
strong cases. For example, recently we worked with MSHA to
issue guidance that encourages inspectors to use cameras
wherever possible to document violations. Commonsense steps
like this can help reduce the number of facts at issue and lead
to faster case resolutions.
--Simplify Penalties.--SOL is planning to help MSHA revise its
penalty rules so that the categories on which penalties are
based--such as the degree of operator negligence and the
gravity of the violation--are simpler. By simplifying the
penalty assessment process, we expect to see fewer issues on
which MSHA and operators can disagree, and fewer contested
citations.
--Provide Incentives Not To Contest Cases.--Operators must be
dissuaded from contesting citations simply because they believe
they can get their penalties reduced. In some cases we
therefore may ask for an increase in the penalties so that
operators understand that there are significant disincentives
to filing frivolous contests, especially in serious cases.
Thank you for the opportunity to testify here today. The time is,
indeed, right for reform. But for reform to be truly effective and
achieve long-term case control, we must pursue a multi-pronged
approach. Resources are an important prong, but administrative,
regulatory and legislative reforms are essential for long-term
solutions. I look forward to taking your questions.
Senator Harkin. Thank you very much, Ms. Smith.
Now we'll turn to Dr. Howard.
Dr. Howard.
STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL
INSTITUTE FOR OCCUPATIONAL SAFETY AND
HEALTH, CENTERS FOR DISEASE CONTROL AND
PREVENTION, DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Dr. Howard. Thank you very much, Mr. Chairman.
On behalf of everyone who works at NIOSH, we'd also like to
express our condolences to the families of the miners who died
in the Upper Big Branch disaster, and to all other mining
families who have lost, tragically, their loved ones.
These tragic losses underscores the importance of
preventing mine disasters, which is the ultimate goal of
NIOSH's mine safety and health research. Since passage of the
MINER Act in 2006, NIOSH has focused efforts in several
different research areas, including coal dust explosion
prevention, sealed area explosion prevention, belt fire
prevention, deep cover retreat mining safety, improving
communications and tracking capabilities, refuge alternatives
during disasters, and improving respiratory protective
equipment.
But, a critical success factor in moving research from the
laboratory to the mines is the ability to attract
commercialization of the new technology. Mining, as an
industrial enterprise, is a small economic market. Without
regulatory incentives, the future commercialization of a new
technology is often difficult and uncertain.
An example of a successful commercialization of new
technologies is the personal dust monitor (PDM). In 2006, NIOSH
published an influential document, entitled ``Laboratory and
Field Performance of a Continuously Measuring Personal
Respirable Dust Monitor.'' NIOSH showed the monitor to be mine
worthy, accurate, and a reliable realtime monitor that can
provide miners and management with a powerful tool to prevent
the overexposure of miners to respirable coal dust. The PDM has
the potential to be used both for compliance and respirable
dust sampling, and as an engineering control tool.
A vital step in getting the PDM into daily use to protect
miners through commercialization, though, was the initiation of
a Federal regulation making permissible NIOSH and MSHA
certification of the PDM for use as a compliance sampler in
underground mines.
Another promising technology that has the potential to save
miners' lives from coal dust explosions, in an era when finer
and more explosive dusts are being generated by modern mining
methods, is the coal dust explosability meter (CDM), which
would provide the mining industry with a means to accurately
assess the hazard of coal dust explosability in realtime. NIOSH
just prepared for publication a report called ``Recommendations
for a New Rock Dusting Standard to Prevent Coal Dust Explosions
in Intake Airways.'' NIOSH recommends a new standard, requiring
that the total incombustible dust content by 80 percent in the
intake airways of bituminous coal mines. NIOSH has based its
recommendation on, one, explosion temperature thermodynamic
limit models for coal and rock dust mixtures; two, extensive in
mine coal dust particle size surveys; and, three, multiple
explosion experiments at the Lake Lynn Laboratory.
NIOSH has been aggressively pursuing commercialization of
the CDM. Attempts to commercialize the CDM suffer from a lack
of sufficient interest to support its manufacture because of
the small market problem. The recent tragic events at the Upper
Big Branch mine, however, have renewed interest in this
technology. NIOSH has found a manufacturer with broad
experience in commercialization of field instruments, and
expects that the CDM will be commercially available in 2011.
The MINER Act also established requirements for postaction
communications and tracking. In response, NIOSH established,
with its domestic and international partners, a comprehensive
strategy and research program to develop new and enhanced
existing communications and tracking technologies for
postaccident applications in underground mines, a strategy
designed to deliver improved postaccident functionality within
the MINER Act timeframe while facilitating ongoing improvements
to these platforms. The private sector developed additional
technologies in parallel with NIOSH's efforts.
In 2006, virtually no MSHA approved communication systems
that met the intent of the MINER Act were commercially
available. Today, there are a suite of postaccident
communications and tracking technologies commercially
available.
While none of these are perfect, these technologies, when
used individually or in combination, have significantly
improved postaccident functionality for mine workers.
PREPARED STATEMENT
NIOSH has also made progress in the area of sealed area
explosion prevention, through design practices and technology
applications. For example, under the technology development
mandate of the MINER Act, NIOSH developed and demonstrated a
system to extract nitrogen gas from the mine atmosphere and
inject it into a sealed area to render it inert or extinguish a
fire. This compact system, designed for easy transport in coal
mines, is now commercially available.
NIOSH continues to work diligently to protect the safety
and health of mine workers and thanks this subcommittee for
their support.
Thank you very much.
[The statement follows:]
Prepared Statement of John Howard
introduction
Good afternoon, Mr. Chairman and other distinguished members of the
subcommittee. My name is John Howard, and I am the Director of the
National Institute for Occupational Safety and Health (NIOSH), part of
the Centers for Disease Control and Prevention, within the Department
of Health and Human Services (HHS). I am accompanied by Dr. Jeffery
Kohler, NIOSH Associate Director of Mine Safety and Health Research and
Director of the Office of Mine Safety and Health Research (OMSHR),
which was permanently established by the Mine Improvement and New
Emergency Response (MINER) Act of 2006.
The goal of NIOSH's OMSHR is the elimination of mining fatalities,
injuries, and illnesses through research and prevention. Collaborations
with its stakeholders, which encompass industry, labor, and Government,
provide a knowledgeable and diverse foundation for formulating a
relevant research portfolio that addresses the most pressing mine
safety and health issues of our time. So, Mr. Chairman, you can imagine
the anguish and frustration that OMSHR, its partners, and I experienced
when the disheartening news of the Upper Big Branch Mine explosion
broke on April 5. While the specific causes of this latest tragedy will
not be known until the Mine Safety and Health Administration (MSHA)
completes its investigation, this explosion already serves as a
poignant reminder of the need to maintain a focus on the prevention of
mine disasters through research and safety interventions.
A review of mine disasters over the last decade, including those at
the Sago mine, the Darby mine, and at Crandall Canyon, reveals that no
two mine disasters are identical. With most mine disasters, a number of
precipitating factors occur concurrently to create conditions to cause
a calamity. Some of these factors are within human control even if
others are not. To consider simultaneously all permutations of factors
that may contribute to a mine disaster is impractical; however, we know
that eliminating one of the factors may prevent or at least mitigate
the effects of a catastrophe. For example, a mine explosion requires a
fuel source (such as methane or coal dust), a minimum concentration of
oxygen to support combustion, an explosive mixture of the fuel with
air, and an ignition source. All contributing factors do not have to be
eliminated to prevent an explosion. In fact, an explosion can be
avoided if any single factor is removed. The key to preventing
catastrophes is to identify and eliminate the controllable common
thread through technology and engineering interventions.
I will now present an overview of NIOSH's on-going research and
accomplishments that primarily relate the mandates of the MINER Act and
disaster prevention. Since I have begun to address the topic of mine
catastrophes, I will start with an overview of our disaster prevention
projects, then move on to disaster response.
disaster prevention
Coal Dust Explosion Prevention.--NIOSH will soon complete an
important report on the explosion hazard implications of finer dusts
that modern mining methods generate. This report of investigation,
called ``Recommendations for a New Rock Dusting Standard to Prevent
Coal Dust Explosions in Intake Airways,'' recommends revision to the
current minimum requirement of 65 percent for incombustible content in
dusts found in intake airways. The report is in the final stages of
review.
NIOSH is aggressively pursuing commercialization of the Coal Dust
Explosibility Meter (CDEM). The CDEM provides the mining industry with
a means to assess accurately and in real time the hazard of coal mine
dust explosibility. Recent mine disasters have renewed interest in this
technology, and NIOSH has found a manufacturing partner with broad
experience in the manufacture and marketing of field instruments. The
CDEM will be commercially available next year.
Sealed Area Explosion Prevention.--The 2006 explosions at the Sago
and Darby mines were due to the existence of explosive atmospheres
within sealed areas of underground coal mines. Preventing this
condition from occurring is a priority under the technology development
mandate of the MINER Act, so NIOSH developed and demonstrated a system
to extract nitrogen gas from the mine atmosphere and inject it into a
sealed area to render it inert or extinguish a fire. This compact
system, designed for easy transport in coal mines, is now commercially
available.
Improving Coal Mine Seals.--In 2007, NIOSH released an influential
Information Circular called ``Explosion Pressure Design Criteria for
New Seals in U.S. Coal Mines,'' that established a scientific basis for
upgrading the design requirements for seals in underground coal mines.
Since that publication, NIOSH has engaged in further research,
including cooperative research with the Naval Research Laboratories and
the U.S. Army Corps of Engineers, to improve methods for evaluating
seal designs. When completed, this research will provide a sound
engineering foundation and enhanced tools to evaluate seal designs to
ensure they will provide adequate protection to miners.
Belt Fire Prevention.--As directed by section 11(A) of the MINER
Act, NIOSH initiated research in response to the report, ``Technical
Study Panel on the Utilization of Belt Air and the Composition and Fire
Retardant Properties of Belt Materials in Underground Coal Mining.''
This research has included full-scale testing of belt materials to
validate the Belt Evaluation Laboratory Test (BELT) as a means of
evaluating the fire resistance of belt materials. Research is
continuing to evaluate the efficacy of current standards for water-
based suppression systems as well as alternative systems used to
control fires over the range of belt air velocities. The research is
also investigating new approaches in early detection of belt fires and
improvements to mine fire modeling software to assess the potential
impact of a fire on escape routes. NIOSH is communicating results of
this work directly to MSHA and to mining stakeholders through industry
conferences and publications.
Mine Atmospheric Monitoring.--Continuous monitoring of gas
concentrations in sealed and active gob areas (mined out areas made up
of caved in rock) would allow mine operators to identify changing
conditions that indicate developing gas explosion or spontaneous
combustion hazards. However, monitoring these areas with conventional
electronic systems can introduce an ignition source to this potentially
hazardous area of a mine. To address this problem, NIOSH procured a
monitoring system, used in approximately 50 coal mines internationally,
that continuously draws air samples from the mine through a network of
tubing to a gas analyzer on the surface. NIOSH is currently
demonstrating this ``tube bundle system'' at a longwall coal mine to
serve multiple research goals including:
--assessing combustible and toxic gas concentrations in real-time in
the active areas of the mine;
--monitoring for developing spontaneous combustion hazards in the
active longwall gob to validate modeling software developed by
NIOSH; and
--documenting the mixing of gasses in a mine gob after completion of
the longwall panel to improve ventilation design models.
The tube bundle system also has the potential to remain in
operation during response to certain mine emergency events without
increased risk to rescuers.
Ground Control Study of Deep Cover Retreat Mining.--NIOSH
conducted, in collaboration with the University of Utah and West
Virginia University, a study of the recovery of coal pillars through
retreat room and pillar mining practices in underground coal mines at
depths greater than 1,500 feet. This study was of special interest
following the tragedy that occurred at the Crandall Canyon Mine. NIOSH
has investigated the safety implications of retreat room and pillar
mining practices, with emphasis on the impact of full or partial pillar
extraction mining and has developed recommendations and research
requirements for addressing the safety issues of ground control under
these mining conditions. At NIOSH's request, MSHA is reviewing this
study, and NISOH expects that the study will soon be completed.
disaster response
Contracts and Grants Program.--As mandated in section 6 of the
MINER Act, NIOSH established a contracts and grants program that funds
the development and adaptation of safety technologies for mining
applications. Under this program, NIOSH has funded 29 proposals. This
year NIOSH received an additional 38 proposals, which are undergoing
technical review. Awards for the most meritorious proposals are
expected this fiscal year. In addition, NIOSH established a contracts
program for mine ventilation research and capacity building to expand
the number of trained professionals which work in this area. The
contracts are designed to support research, exploratory development,
testing, or evaluations of innovations and new technologies to improve
mine health and/or safety in the area of mine ventilation. NIOSH has
awarded seven 5-year contracts for ventilation research to universities
throughout the United States.
In addition, NIOSH established an Inter-Agency Working Group to
provide a formal means for Federal Government agencies to share
technology that can be applied to mining safety. The working group
includes representatives from NIOSH, MSHA, the National Aeronautics and
Space Administration (NASA), the Naval Research Lab, the U.S. Army
Engineering and Research Center, Sandia National Laboratory, and a
number of additional research labs or offices within the Departments of
Defense, Energy, and Homeland Security.
The NIOSH Contracts and Grants Program can be divided into three
primary areas as defined by the MINER Act: communications and tracking,
refuge alternatives, and self-contained self-rescuers.
Communications and Tracking.--The MINER Act established
requirements for postaccident communications and tracking and charged
NIOSH with developing and improving mine safety technologies.
Furthermore, each coal mine was required to submit an emergency
response plan, which incorporates postaccident communications and
tracking, to MSHA within 3 years of the enactment date. In 2006,
virtually no MSHA-approved communications and tracking systems that met
the intent of the MINER Act were commercially available.
In response NIOSH established with its domestic and international
partners a comprehensive strategy and research program to develop new,
and enhance existing, communications and tracking technologies for
postaccident applications in underground coal mines. This strategy is
designed to deliver improved postaccident functionality within the
MINER Act timeframe, while facilitating continuous improvements to
these platforms. The private sector developed additional technologies
in parallel with NIOSH's efforts.
NIOSH categorizes its communications research into two major
areas--Primary Systems and Secondary Systems. Primary Systems operate
in conventional radio bands, use small antennas that permit wearable
transceivers with long battery life, and provide sufficient throughput
for routine, daily mine communications. Secondary Systems operate in
nonconventional frequency bands, use large antennas that are best
suited for fixed or portable applications, and do not have sufficient
throughput for everyday mine communications. Thus, Secondary Systems
are primarily intended for emergency use.
Primary Systems include leaky-feeder systems, which use perforated
coaxial cables to carry radio signals, and node-based communications,
which employ a network of nodes using a digital format. Becker/Pillar
and Innovative Wireless/L3, respectively, developed the systems under
NIOSH contracts. The node-based system serves a dual purpose of
communications and tracking. Both leaky-feeder and node-based systems
have been installed, tested, and demonstrated in underground mines and
are now MSHA-approved and commercially available.
Primary Systems require an in-mine infrastructure that is
inherently vulnerable, so their survival after a catastrophic event
depends on redundant communications paths. In nonproduction areas of a
mine, direct paths to the surface are accessible only via shafts and
boreholes. These alternative paths are not readily available within
working sections; therefore, in-mine redundancy of communications
pathways, although less effective, must be used.
Secondary Systems include medium-frequency systems, which use the
metallic structures within the mine to transmit signal, and through-
the-earth systems, which exploit wireless options. These systems
require minimal infrastructure and thus have better chances for
survival after an emergency event. A NIOSH contract awarded to Kutta/
U.S. Army produced a medium-frequency system, while contracts awarded
to Lockheed Martin, E-Spectrum, Alertek, Teledyne Brown Engineering,
Stolar, and Ultra Electronics are directed toward the development of
through-the-earth systems.
A Secondary System cannot support routine mine communications
because of limited throughput. Though it does not provide wide-area
coverage, it provides an alternative communications path out of the
mine (i.e., it substitutes for a borehole in a working section).
Ideally, a Secondary System provides a backup, emergency channel for a
Primary Communications System.
The medium-frequency system has been successfully tested and is in
the MSHA approval process. Through-the-earth systems are still in the
development stage. Although successful preliminary testing has
occurred, the principal challenge is designing a system that can
support two-way communications at power levels that are low enough to
meet MSHA approval requirements. Despite the technological obstacles,
NIOSH will continue to support advances in these critical technology
areas.
NIOSH is planning to perform long-term, targeted research to
address information gaps in communications and tracking. Identified gap
areas include the safety issues of distributed and isolated batteries
in communication and tracking systems, performance measurement and
estimation techniques, compatibility considerations, and
electromagnetic signal propagation in mining environments.
Refuge Alternatives.--In response to MINER Act mandates, NIOSH has
successfully conducted extensive research into the utility,
practicality, survivability, and cost of various refuge alternatives in
an underground coal environment. This research, through both in-house
and contract efforts, included field tests of approved and commercially
available refuge chambers. Sharing information is an important part of
the response to the MINER Act; thus a NIOSH-MSHA Working Group was
established to facilitate the flow of information and to enhance NIOSH
research efforts. NIOSH prepared a report detailing the results of this
research and providing specific recommendations that could inform the
regulatory process on refuge alternatives. In December 2007 NIOSH
delivered the report to the Secretary of Labor, the Secretary of HHS,
the Senate Committee on Health, Education, Labor, and Pensions, and the
House Committee on Education and the Workforce.
NIOSH has also addressed the training issues associated with refuge
alternatives and has developed individual training products on topics
such as the decisionmaking process of when to use a refuge chamber,
operational guidelines for instructional materials, and how to use a
refuge chamber. Significant work is needed in the area of expectations
training, and NIOSH has a first module nearly completed in this area.
State and Federal efforts resulted in the introduction of refuge
chambers throughout the underground coal industry. However,
alternatives to chambers such as an in-place shelter were left largely
untouched and a range of chamber operational questions remain unknown.
As a result, mineworker confidence in these chambers is low, and the
value of this potentially lifesaving technology remains undetermined.
NIOSH has evaluated international best practices in self-escape and
mine rescue operations to identify opportunities to improve U.S. mine
preparedness. NIOSH researchers identified the value of introducing
improved realism in mine rescue training and the importance of
behavioral health issues in preparing miners and rescuers for response
to an emergency. Researchers identified the need to improve training
facilities and to use more standardized training and procedures in
order to improve the ability of teams from different mines to work
together during emergencies. NIOSH has communicated these findings at a
number of industry events and worked directly with mine rescue teams to
initiate change.
Self-contained Self-rescuers.--The NIOSH research and evaluation
program for self-contained self-rescuers (SCSRs) addresses new
technology, standards for certification, training, and testing of mine-
deployed SCSRs.
New Escape Respirator Technology.--NIOSH awarded a contract to
Technical Products, Inc. (TPI) in February 2007 to design and fabricate
an oxygen-supplying SCSR with ``piggy-back'' technology to allow a
trapped or escaping miner to replenish his oxygen supply while
underground. The new SCSR design includes a docking port mechanism that
allows the user to plug in additional oxygen units without opening the
breathing circuit to the potentially poisonous atmosphere. The docking
port requires that a second oxygen unit be plugged in before the valve
can be repositioned to the alternate port. In addition to this docking
capability, the escape respirator employs a new chemical technology for
removing carbon dioxide from the exhaled breath. This new chemical
technology will facilitate lower breathing effort by the user and be
more capable of withstanding the rigors (shock, vibration, and rough
handling) encountered in daily use. Other innovative materials and
design features make the new escape respirator easier to manufacture
and more comfortable to wear and use.
Under the same contract, TPI also developed a new technology filter
self-rescue respirator for use in carbon monoxide atmospheres. The new
filter self-rescue technology uses a catalytic process to remove carbon
monoxide, resulting in longer protection from a smaller filter than
current filter self-rescue technology. The new filter self-rescue
respirator can be docked with the escape respirator to provide
protection in atmospheres where the only hazard is carbon monoxide.
The designer and manufacturer of the new respirator technologies is
expected to apply for NIOSH certification. In addition to the contract
work on the docking escape respirator system, NIOSH has been working to
increase awareness of other escape respirator technologies commercially
available and used in other countries.
Standards for Certification Evaluation and Testing.--On December
10, 2008, NIOSH published in the Federal Register a proposed regulation
for certification, evaluation, and testing of closed-circuit escape
respirators. The proposed regulation would replace current
certification evaluation and test requirements identified in 42 Code of
Federal Regulations, part 84. The proposed regulation would enable
state-of-the-art technology for both test and performance of escape
respirators. In 2009, NIOSH held two public meetings to discuss the
proposed regulation and opened a docket to enable interested parties to
provide comment. NIOSH is currently reviewing the comments submitted to
the docket and expects to submit a final rule this fiscal year.
User Training for SCSRs.--NIOSH conducted a research project to
evaluate the effectiveness of SCSR user training programs developed by
NIOSH in collaboration with MSHA. In 2009, NIOSH worked with 11 mines
and 2 mine training centers to conduct the training effectiveness
evaluation on 461 miners. NIOSH and MSHA are now analyzing the training
effectiveness evaluation and expect to complete the analysis this year.
Testing of SCSRs.--In 2007, NIOSH redesigned the Long-Term Field
Evaluation (LTFE) Program for SCSRs to change the focus from a research
program to a respirator certification audit program. The LTFE Program
redesign includes a valid sampling strategy to select SCSRs from mines
for testing, uses defined evaluation performance criteria with a
documented test protocol, and incorporates a procedure for conducting
follow-through actions based on evaluation results. The redesigned
protocol was peer-reviewed and discussed at two public meetings prior
to implementation. NIOSH also established an open comment docket for
stakeholder comments.
In May 2009 NIOSH launched the redesigned LTFE, starting with the
collection of SCSRs from mines following a random sampling plan using
the MSHA SCSR inventory. As of March 2010, NIOSH had collected 259
SCSRs from 153 mines, and had tested 173 SCSRs following the redesigned
protocol. Collected and tested SCSRs represent respirators from each of
the four models currently used in mining operations. Following the new
protocol and performance criteria, one respirator model exhibited the
same test failure on two respirators. The failures are under
investigation to identify the cause and to determine corrective
actions.
Although this hearing is focusing on disaster prevention, everyday
mine workers face a risk of injury or occupational illness. Advances in
engineering and training interventions, developed in partnership with
labor, industry, and Government, have made significant reductions to
nonfatal and fatal traumatic injuries. Yet more still needs to be done
to approach a zero harm goal. NIOSH has a balanced research portfolio
to address injuries in areas including ground control, electrical
safety, and materials handling. In addition to developing solutions to
specific problems, NIOSH is examining the advantages and limitations of
additional approaches such as improving the safety culture and
employing risk assessment methods.
Occupational exposures to noise and respirable dusts can result in
unacceptable health outcomes for workers. For example, more than 70,000
coal miners have died with black lung disease over the past 40 years.
NIOSH has a major research focus on the development of engineering
controls to reduce exposures to dusts and noise, and has successfully
developed and introduced many of these into the mines. Perhaps the most
significant event, however, is the successful implementation of the
personal dust monitor--a technology that will, for the first time ever,
allow mineworkers to know their exposure to coal dust in real time,
then enabling operators to make changes to the engineering controls
that can reduce miners' exposure. I would like to conclude by
summarizing our work on this life-saving technology.
Personal Dust Monitor (PDM).--In 2006, NIOSH published an
influential document entitled, ``Laboratory and Field Performance of a
Continuously Measuring Personal Respirable Dust Monitor.'' This
document proves the personal dust monitor (PDM) to be a mine-worthy,
accurate, and reliable real-time dust monitor that can provide miners
and mine management with a powerful tool to prevent the overexposure of
underground coal miners to respirable dust. The dust monitor is built
into the miner's cap lamp system and provides real-time dust exposure
data. The PDM has the potential to be used for compliance respirable
dust sampling and as an engineering control tool. Significant progress
has been made on advancing PDM technology into underground coal mines
in the United States. Key developments are as follows:
--NIOSH and MSHA jointly developed 30 CFR part 74--Certification of
Continuous Personal Dust Monitors. This regulation enables
NIOSH and MSHA to certify PDMs for use as a compliance sampler
in underground coal mines. The effective date of this
regulation is June 7, 2010. NIOSH and MSHA expect to receive
soon a request from the manufacturer to certify the PDM for
U.S. mine compliance sampling.
--MSHA is modifying how coal mine dust is sampled under 30 CFR parts
70, 71, and 90, covering, respectively, dust sampling
procedures, dust control plans, and special sampling for miners
with evidence of black lung. NIOSH has been providing
significant technical assistance on the appropriate application
of the new PDM technology in underground coal mines.
--The Personal Dust Monitor Management System software package was
recently developed and tested. A June 2010 release is
anticipated. This software collects, secures, and stores PDM
data in an easily accessible data base and can produce reports
in a variety of formats based on the needs of the end user.
In July 2009, the PDM commercial manufacturer, Thermo Scientific,
began commercial sale of the PDM. From an initial production run of 122
units, 81 were sold to mining companies and are currently in use.
Thermo Scientific has received orders for an additional 100 units from
mining companies and is building the units. NIOSH researchers are also
tracking the performance of these units around the United States.
conclusion
In closing, NIOSH continues to work diligently to protect the
safety and health of mine workers. The most recent mine disaster
underscores the relevance of past NIOSH work and continued need for
further safety and health research. NIOSH has made significant
improvements in the areas of communication and tracking, oxygen supply,
and refuge alternatives. Moreover, NIOSH's safety and health research
program is addressing the critical areas identified by our customers
and stakeholders, and through research, development, demonstration, and
diffusion activities, NIOSH is enabling a shift to a prospective harm
reduction culture in the mining industry. I appreciate the opportunity
to present NIOSH's work to you and thank you for your continued
support. I am pleased to answer any questions you may have.
Senator Harkin. Thank you, Dr. Howard.
Now we turn to Ms. Jordan.
STATEMENT OF MARY LU JORDAN, CHAIRMAN, FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION,
WASHINGTON, DC
Ms. Jordan. Thank you for the opportunity to testify on the
backlog currently facing the FMSHRC.
The need to eliminate this backlog has taken on even more
crucial significance since the tragic explosion at the Upper
Big Branch mine on April 5. All of us at the FMSHRC are
profoundly saddened by the deaths of the miners there, and our
thoughts are with their families, friends, and the surviving
miners.
The FMSHRC currently has more than 16,000 pending cases at
the judge level. This is a marked departure from our historical
caseload figures. During the 4 years from fiscal year 2002
through 2005, the annual caseload ranged from approximately
1,300 to 1,500 cases. In comparison, during the subsequent 4
years, the caseload climbed from 2,700 to more than 14,000.
Due to the backlog, the age of the cases that the FMSHRC
decides has increased. For example, in fiscal year 2008, 72
percent of the cases were decided by administrative law judges
within 1 year, 23 percent were decided within 1 to 2 years, and
5 percent of the cases were more than 2 years old by the time
they were issued.
So far, in fiscal year 2010, cases under 1 year of age
constituted only 20 percent of the dispositions, 62 percent
were from 1 to 2 years old, and 13 percent of the decided cases
were more than 2 years old. We expect this lengthening trend to
continue as long as an extensive case backlog remains.
The current backlog has significant ramifications. Several
important enforcement provisions of the MINE Act depend upon
the determination of an operator's history of violations. That
history is based on violations that are final, which occurs
only at the completion of the FMSHRC's review process. Thus, if
case decisions are delayed, MSHA's ability to effectively
enforce the Act is inhibited.
We have, pursuant to our $10.3 million budget appropriation
for fiscal year 2010, added four new administrative law judges
to our previous roster of 10. We also added four new law clerks
to assist the judges. If funding remains just at this 2010
level, we predict a case backlog of approximately 18,200 cases
by the end of the fiscal year. The President's 2011 budget
request of $13.1 million would allow us to add 4 more judges,
for a total of 18, and would permit us to stem the growth in
the backlog.
As you know, the President has committed to reducing the
backlog. There are different ways to meet this goal. For
example, immediately increasing the number of administrative
law judges to 26 would cost roughly an additional $5.3 million
above the fiscal year 2010 appropriation and the President's
2011 budget. At this level, we estimate that, assuming our
current case intake level remains constant, we could reduce the
number of FMSHRC cases--number of cases in the FMSHRC's
backlog--to less than 9,200 within 3 years.
If supplemental funding is provided, we recognize that we
would need to hire new judges quickly. Yet, at the same time,
if and when the backlog is reduced to an acceptable level, we
may not need as many judges. We have identified two methods to
achieve these goals. First, we have formally requested the
Office of Personnel Management to ask other agencies to
temporarily loan administrative law judges to us. Second, we
plan to recruit senior administrative law judges, judges who
have retired from Federal service, to work for the FMSHRC for a
limited period of time.
In addition to increased staffing, we're examining our
entire case adjudication system to determine how we can
streamline procedures. On April 27, the FMSHRC published an
amendment to its procedural rules. It requires the parties to
submit a draft settlement order with their motion, and requires
almost all of these submissions to be filed electronically.
Today the Federal Register published our proposed rule
initiating the simplified procedures process, similar to the
one in effect at the Occupational Safety and Health Review
Commission. Parties whose cases are placed in this track would
be subject to mandatory exchange of information and early
prehearing conferences.
PREPARED STATEMENT
Finally, it's important to note that both the significant
increase in the numbers of FMSHRC judges, as well as some of
the changes we are proposing in our administrative and
rulemaking areas, will impact MSHA and the SOL. We are
committed to working cooperatively with them to ensure that
adjudication under the MINE Act may once again proceed swiftly.
Over the years, this subcommittee has played a key role in
ensuring that we receive sufficient funds to protect miner
safety. I look forward to working with you to identify the
resources needed to address the backlog. And thank you, once
again, for this opportunity to testify on the issue.
[The statement follows:]
Prepared Statement of Mary Lu Jordan
Chairman Harkin, Senator Cochran, and members of the subcommittee:
Thank you for the opportunity to testify on the case backlog currently
facing the Federal Mine Safety and Health Review Commission (FMSHRC).
My name is Mary Lu Jordan, and I am Chairman of the FMSHRC. On behalf
of the FMSHRC, I want to thank the subcommittee for its interest in
identifying the resources needed to ensure the speedy adjudication of
mine safety cases by eliminating the FMSHRC's current case backlog.
Of course the need to eliminate the backlog has taken on even more
crucial significance since the tragic explosion at the Upper Big Branch
mine on April 5, 2010. All of us at the FMSHRC are profoundly saddened
by the deaths of the miners there, and our thoughts are with their
families, friends, and the surviving miners.
FMSHRC is an independent adjudicatory agency that provides
administrative trial and appellate review of legal disputes arising
under the Federal Mine Safety and Health Act of 1977 (Mine Act). The
FMSHRC's administrative law judges decide cases at the trial level. The
five-member FMSHRCprovides administrative appellate review. Currently,
we have a full complement of commissioners, as our fifth member,
Patrick Nakamura, was sworn in at the beginning of this month.
The majority of cases that come before the FMSHRC involve civil
penalties proposed by the Department of Labor's Mine Safety and Health
Administration (MSHA) to be assessed against mine operators. The
FMSHRC's administrative law judges are responsible for deciding whether
the alleged violations of the Mine Act or a mandatory safety or health
standard or regulation issued by MSHA occurred, as well as the
appropriateness of the proposed penalties. To determine the penalty,
the judges must make findings on a number of issues, including the
seriousness of the violation and the negligence of the operator. Other
types of cases heard by the FMSHRC's administrative law judges include
contests of MSHA orders to close a mine for health or safety reasons,
miners' charges of discrimination based on their complaints regarding
health or safety, and miners' requests for compensation after being
idled by a mine closure order.
Since the day I became Chairman of the FMSHRC, again, last August,
I have been working with my staff to address our case backlog. As of
April 30 of this year, we had a backlog of 16,580 cases. (As I
mentioned previously, most of these are penalty contests, although
approximately 20 percent of them are contests of underlying citations,
which typically are stayed and then consolidated with the related
penalty cases). In that backlog of pending cases are 9,650 cases (58
percent) under 1 year of age, 5,346 cases (32 percent) that are 1-2
years of age, and 1,584 cases (nearly 10 percent) older 2 years of age.
This significant case backlog is a marked departure from our historical
caseload figures.
For example, during the 4 years from fiscal year 2002 through
fiscal year 2005, the annual caseload ranged from approximately 1,300
to 1,500 cases. In comparison, during the subsequent 4 years, from
fiscal year 2006 through fiscal year 2009, the caseload climbed from
approximately 2,700 to more than 14,000 cases.
A comparison of new case filings during these same two time periods
is also very instructive. From fiscal year 2002 to fiscal year 2005,
the annual number of cases filed showed only a minimal increase, going
from about 2,100 to 2,400 new cases per year. The figures after that
paint a completely different picture, with case filings going from
3,300 new cases in fiscal year 2006 up to approximately 9,200 new cases
in fiscal year 2009.
Due to the backlog, the age of cases that the FMSHRC decides has
increased. For example, in fiscal year 2008, 72 percent of the cases
were decided by administrative law judges within 1 year, 23 percent
were decided within 1-2 years, and 5 percent of the cases were more
than 2 years old by the time they were issued. In fiscal year 2010 (as
of April 30), cases under 1 year of age constituted 25 percent of
decided Commission cases, 62 percent were from 1-2 years old, and 13
percent of decided cases were older than 2 years. We expect this
lengthening trend to continue as long as an extensive case backlog
remains. The attached graph shows the dramatic increase in the average
number of days it took our judges to dispose of cases between fiscal
year 2001 and the first 7 months of fiscal year 2010.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Moreover, our judges' dockets have increased dramatically. We
assigned more cases, which moved the bulk of the backlogged cases to
our judges' desks. From fiscal year 2004 to fiscal year 2008, each
judge's docket averaged 176 cases. That number jumped to 366 cases in
fiscal year 2009. As of April 30, 2010 (before our new judges were
hired), the number of cases assigned to each judge was, on average,
601.
The FMSHRC's current case backlog has significant ramifications.
When Congress passed the Mine Act, it expressed concern that the
penalty provisions of the Act cannot operate as an effective deterrent
if there is an unduly long period of time between the violation and the
payment of a penalty. The legislative history of the Mine Act
emphasizes that ``. . . [t]o be effective and to induce compliance,
civil penalties, once proposed, must be assessed and collected with
reasonable promptness and efficiency.'' S. Rep. No. 95-181, at 43
(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 631 (1978).
Furthermore, an issue frequently raised since the explosion in West
Virginia is that several important enforcement provisions of the Mine
Act depend upon a determination of an operator's history of violations.
Penalties are calculated based, in part, on the operator's history of
violations. Moreover, MSHA's ability to issue a withdrawal order
because of a pattern of violations under section 105(e) of the Mine Act
is not applicable under MSHA's regulations, 30 CFR 104.3(b), until a
violation becomes ``final'' which occurs only at the completion of the
FMSHRC's review process. Thus, if case decisions are delayed, MSHA's
ability to effectively enforce the act is inhibited.
In addition, Congress intended that the case processing mechanism
operate efficiently so that operators who dispute MSHA's interpretation
of a standard may obtain a speedy resolution. With a large and growing
backlog of cases at the FMSHRC, operators often do not know in a timely
manner whether their practices comply with mandatory safety or health
standards or violate them.
Today, I want to update you on steps we have taken to reduce this
backlog, and on the work that remains to be done. Mindful of the recent
mine disaster, we are determined to speed up our case processing to
afford prompt, effective adjudication to the parties who appear before
us.
In terms of our actions to date, we have, pursuant to our $10.358
million budget appropriation for fiscal year 2010, added 4 new
administrative law judges to our previous roster of 10 judges. Three
have already joined the FMSHRC and the fourth will arrive next week.
Under that appropriation, we also added four new law clerks to our
current staff of five clerks to assist our judges.
If our funding remains at this level with this staffing (14 judges,
9 law clerks, and 9 legal assistants) for the rest of fiscal year 2010,
we project a case backlog of approximately 18,200 cases by the end of
this fiscal year. Thus, this level of funding would permit the backlog
to grow. However, the President's 2011 budget request of $13.105
million, representing a 27 percent increase over our fiscal year 2010
appropriation, would stem the growth in the backlog, once the new
judges are trained and gain experience under the Mine Act. We would be
able to add four more judges, which would bring our total to 18. We
also could hire nine additional law clerks so that each judge would
have the assistance of a law clerk, and each judge would share an
administrative assistant with another judge.
As you know, the President has committed to reducing the backlog.
There are different ways to meet this goal. For example, immediately
increasing the number of administrative law judges to 26 would cost
roughly an additional $5.3 million above the fiscal year 2010
appropriation and the President's 2011 budget. At this level, we
estimate that, assuming our current case intake levels remain constant,
we could reduce the number of cases in the FMSHRC's backlog to less
than 9,200 within 3 years. Additionally, policy and process changes
under consideration by the Commission--some of which I will discuss
later--could allow us to more quickly reduce the backlog and case
processing time.
If supplemental funding is provided, we recognize that we would
need to hire new judges quickly. Yet at the same time, if and when the
backlog is reduced to an acceptable level, we may not need as many
judges. We have identified two methods to achieve these goals: first,
we have formally requested the Office of Personnel Management to ask
other agencies to temporarily loan administrative law judges to us. As
of right now, the Office of Personnel Management has approved three
judges who could work for us on a temporary and intermittent basis.
Second, we would recruit senior administrative law judges--judges who
have retired from Federal service--to work for the FMSHRC for a limited
period of time.
In addition, we are mindful of the training needs of new judges,
particularly those with no Mine Act experience. To that end, we have
initiated a training program in which our senior judges assist the
newly hired judges in learning about FMSHRC case adjudication and
procedures. Also, by expanding the number of law clerks, we will
provide additional support for our judges.
But more resources are only part of the answer. In addition to
increased staffing, we are continuing to examine our entire case
adjudication system to determine how we can streamline procedures via
administrative and rulemaking changes.
For instance, because more than 90 percent of FMSHRC cases are
ultimately settled, we have looked at ways to make that process more
efficient, as much of the FMSHRC's resources are used to process
settlement motions and issue orders approving settlement. Until
recently, the parties filed a motion to approve settlement, but the
FMSHRC's judges drafted the settlement order in each settled case. On
April 27, 2010, the FMSHRC published an amendment to its procedural
rules requiring the parties to submit a draft settlement order with
their motion to approve settlement. 75 Fed. Reg. 21987. Furthermore,
the rule requires almost all of these submissions to be filed
electronically. These changes should reduce the resources expended by
the FMSHRC judges in resolving settlement motions.
We are also initiating a ``simplified procedures'' process similar
to the one in effect at the Occupational Safety and Health Review
Commission. The rules for cases placed on this track, which would be
the simpler cases the FMSHRC receives, would provide for mandatory
early disclosure of information and documents by the parties, and early
prehearing conferences with a judge. Additionally, discovery and post-
trial briefs would be severely limited, and interlocutory review is
abolished. We submitted this proposed rule to the Federal Register on
May 11, 2010 for notice and comment.
In fiscal year 2008, the FMSHRC instituted a new electronic case
tracking system, which allows us to more efficiently track the various
stages of each case that we receive. Another ongoing project involves
the electronic filing of cases and case documents. The FMSHRC is
currently reviewing requirements for the electronic filing process to
determine the best approach for implementing such a system. One of our
commissioners is currently leading the project team working on this
endeavor. The team's initial work has been to visit and survey other
adjudicative agencies which have electronic filing systems in place in
order to gather information about how long it would take to institute
such a system and the costs involved.
Finally, it is important to note that both a significant increase
in the number of FMSHRC judges (with the concomitant increase in the
number of cases decided) and some of the changes we are proposing in
our administrative and rulemaking arenas will impact MSHA and the
Office of the Solicitor. We are committed to working cooperatively with
them to ensure that adjudication under the Mine Act may, once again,
proceed swiftly.
We will continue to explore modifications to our procedural rules
and case management procedures that might enable cases to move more
quickly through the FMSHRC. We are committed to examining any and all
ideas that can assist in adjudicating cases more rapidly.
Over the years this subcommittee has played a key role in ensuring
that we receive sufficient funds to protect miner safety. I look
forward to working with you to remedy the problem of our case backlog
and in identifying the resources needed to address it and thank you
once again for this opportunity to testify on this issue.
Senator Harkin. Thank you very much, Ms. Jordan.
Well, I note that the first bells have rung for the vote. I
will wait until the second set well, a little bit before I
recess.
I did want to, thank you all for your testimonies and for
all of the good work that you all do in your various
capacities.
But, I want to get to the heart of something here, Mr. Main
and Ms. Smith. It just seems to me, from all I have read and
the info that our committee's looked at, that, under the
current system, there seems to be every incentive for an
operator to challenge just about every citation issued. They
can take advantage of the long delays, put off paying any fines
well into the future. Often these fines are substantially
reduced, as a result of the contest process, even when the
violations are fully supported by the evidence.
So, what can we do? What would you suggest to this
subcommittee that we have to do, legislatively? Now, we can put
additional money into hiring more judges, but I'm not certain
that's going to do the job. They're just going to have more
cases filed. I have two questions.
One question, Mr. Main, for you. We saw the increase in the
number of citations in the last few years, and the backlog. Why
is that happening? Why are we getting more and more citations?
I thought mines were getting safer. I thought we had new
technologies. And yet, it seems we're getting more violations,
more citations.
And, Ms. Smith, if you could follow up on that, what should
we do here to break that trend, rather than just hiring more
judges? Is there something, legislatively, that we need to do?
So, Mr. Main, why this huge increase in citations?
Mr. Main. Thank you, Mr. Chairman.
When I became the Assistant Secretary in October, that was
a question that I raised, myself, and started looking into the
history of the application of the MINE Act. And if you look at
the progress of enforcement following the new MINER Act and
other regulations and other activity that took place, which was
the funding of additional inspectors that increased, I think,
increases by about 20 percent of the number of inspectors on
the ground, I think that had some impact with the additional
inspections that took place.
But, I also was really bothered by the fact that, you know,
there was an increase of violations being cited. And I took a
look at the a benchmark, to try to figure out why, because I
heard the concerns about consistency and, you know, the new
inspections and or new inspectors. I took a look at the
statistics to see, are we citing actual violations? And what I
found was that, on an average in 2008, 2009, it's about 175,000
violations were issued to the mining industry. And less than
one half of 1 percent, in the last year I looked at, of the
violations that were issued were vacated, which is almost
nothing. So, that meant that, basically, at least what had been
through that process, those violations were violations.
And I think, before we get into the type of violations, we
have to stop there and say, ``We've got a problem here. And
what we need to do is have the mining industry take ownership
of these mines, beef up their safety departments, get in there
and start inspecting these mines and correcting these
conditions.''
And if you fast forward to the Upper Big Branch mine, with
the number of violations that we were finding in the Upper Big
Branch mine last year, I think that was the solution to the
problem was for the mine operator to hire up their safety staff
and get in there and get these violations cleaned up.
So, I'm bothered by the number, and I think the number's
pretty solid.
Senator Harkin. Before I turn to you, Ms. Smith, then,
obviously, there are some mines that are very safe?
Mr. Main. Yes.
Senator Harkin. Hardly ever get violations, hardly ever
have any accidents. Well, I hate to get in the position of
saying, ``A coal mine is a coal mine is coal mine.'' Obviously,
they differ, in terms of shaft sizes and depths and horizontal
runs and a lot of different factors that go into that. But, you
would think that we would have some standards based upon the
success of certain mines, and make that applicable to all the
mines.
Mr. Main. I believe that mines that have a better safety
management program have a better safety culture, have a better
safety record. And believe that mines that lack those, don't.
If we look at Upper Big Branch last year we find that it had 48
unwarrantable failure orders issued--the most in the country.
There are mines that operated last year with no unwarrantable
failure violations issued. So, I think that you have to
question the safety management programs that are in some of
these mines.
Senator Harkin. Okay. So, Ms. Smith, what should we be
doing, what can we do?
Ms. Smith. Well, Senator, I think that the answer to your
question is a combination of administrative, regulatory, and
legislative fixes. And on the legislative side, what we have to
do is, basically, remove the penalties, I mean the incentives,
to contest the penalties and the citations.
One of the things that we would propose is prejudgment
interest, because some operators will contest because they want
the time value of money, and it delays the payment of the
money; we need to reduce that. Some operators will contest
because it delays the final order.
And the history of a mine operator's citations is relevant
to a number of things. It's relevant to the future penalties,
because that's one of the things that go into the penalties.
It's also relevant to pattern of violations. So, we have to
look at the final order issue and see if we can take away that
incentive.
So, I think, ultimately, it's taking away the incentives to
contest that will help reduce it, and those are two legislative
things.
But, again, they have to be done along with regulatory
fixes, along with administrative fixes. There is just no silver
bullet to fix this backlog problem.
Senator Harkin. Well, we probably thought, when we passed
the MINER Act, that we had taken care of a lot of this stuff.
And now it just keeps happening, and even worse.
Ms. Smith. I think that, you know, this is something about
the law of unintended consequences. We're now going to get a
second chance to look at that and try to fix that.
Senator Harkin. Well, I can guarantee you, we are going to
take a look at it. And we are going to do something to fix it.
We just need to know, from the experts, just what course of
action you think we ought to take.
Now, I see we're on the second bell, so--Dr. Howard, Ms.
Jordan--I'm going to recess the subcommittee now, and go over
and vote. And I will return, hopefully within the next 10 to 15
minutes.
We'll stand in recess for just a few minutes.
The subcommittee will resume its sitting.
We have been joined by the individual that I have admired
so much for his leadership in so many areas, especially this
Appropriations Committee, and his leadership in fighting so
hard for our miners in this country. I can say this without any
hesitation whatsoever. No one has done more for miners in this
country than Senator Robert C. Byrd, of West Virginia. No one.
And it's just an honor to have him here today, because I know
how deeply Senator Byrd cares about his people in West
Virginia, and how he cares about miners everywhere. I've often
said that I have such a great affinity for him because we both
have coal miner's blood in our veins, and we care very deeply
about it.
And so, it's just a great honor to have you here, Senator
Byrd. And I will yield to you for whatever statement and
questions you might have for this panel.
STATEMENT OF SENATOR ROBERT C. BYRD
Senator Byrd. Thank you, Mr. Chairman.
I very much appreciate your holding this hearing. You and
your staff, Senator, have been very gracious in accommodating
my request for supplemental funding and for this oversight
hearing in the wake of the terrible tragedy that took the lives
of 29 coal miners in the coal fields of southern West Virginia.
Nearly 2 months after that horrific explosion, I am
perplexed--let me spell that--P-E-R-P-L-E-X-E-D--perplexed as
to how such a tragedy on such a scale could happen, given the
significant increases in funding and in manpower for the MSHA
that have been provided by this subcommittee.
Congress has authorized the most aggressive miner
protection laws in the history of the world--history of the
universe. But, such laws aren't worth a dime if the enforcement
agency is not vigorous about demanding safety in the mines.
These laws are also jeopardized when the miners themselves
are not incorporated into the heart of the inspection and
enforcement process, as Congress intended for them to be. Now's
the time--long past the time--to cast off the fears, the
cronyism, and other encumbrances that have shackled coal miners
and MSHA in the past.
Assistant Secretary Main and his team at the MSHA still
have much to explain regarding this tragedy at Upper Big Branch
that happened on their watch their watch. I don't believe it
was because of a lack of funding. I don't believe that MSHA
lacked--L-A-C-K-E-D--lacked enforcement authorities. I don't
believe that.
Massey Energy officials, who bear the ultimate, final
responsibility for the health and safety of their workers,
still have much to explain to the country and to the families
of the miners who perished. I cannot fathom how an American
business could practice such disgraceful health and safety
policies while at the same time boasting about its commitment
to safety of its workers. I can't understand that.
The Upper Big Branch mine had an alarming record of
withdrawal orders. Now, where on Earth--where was the
commensurate effort to improve safety and health? Where was it?
Presently, there are several ongoing investigations,
including an ongoing criminal investigation an ongoing criminal
investigation. Perhaps, so just maybe these will provide some
solace and comfort to the families who are looking for
accountability.
PREPARED STATEMENT
Let us also hope that his hearing will provide information
on the Government and company officials who should be held
accountable and lead us to some additional steps that may be
taken to avoid such horrific, such terrible loss of life in the
future.
[The statement follows:]
Prepared Statement of Senator Robert C. Byrd
Mr. Chairman, I very much appreciate your holding this hearing. You
and your staff have been very gracious in accommodating my requests for
supplemental funding and for this oversight hearing, in the wake of the
terrible tragedy that took the lives of 29 miners in the coal fields of
southern West Virginia.
Nearly 2 months after that horrific explosion, I am perplexed as to
how such a tragedy, on such a scale, could happen, given the
significant increases in funding and manpower for the Mine Safety and
Health Administration (MSHA), which have been provided by this
subcommittee.
In recent weeks, MSHA has announced so-called inspection blitzes.
MSHA has announced new rules concerning preshift examinations and
pattern violators, and has displayed a new-found willingness to use
injunctive relief to close dangerous mines. It is tragic that miners
had to perish in order to precipitate such enforcement. The Congress
has authorized the most aggressive miner protection laws in the history
of the world, but such laws are useless if the enforcement agency is
not vigorous about demanding safety in the mines.
These laws are also jeopardized when the miners themselves are not
incorporated into the heart of the inspection and enforcement process--
as Congress has intended them to be. Now is the time--in fact, long
past the time--to cast off the fears, cronyism, and other encumbrances
that have shackled coal miners and MSHA in the past.
Assistant Secretary Main, and his team at MSHA, still have much to
explain regarding this tragedy at Upper Big Branch (UBB) mine, which
happened on their watch. I do not believe it was because of a lack of
funding. I do not believe that MSHA lacked enforcement authorities.
Massey Energy officials, who bear the ultimate responsibility for
the health and safety of their workers, still have much to explain to
the country and to the families of the miners who perished.
I cannot fathom how an American business could practice such
disgraceful health and safety policies while simultaneously boasting
about its commitment to the safety of its workers.
The UBB mine had an alarming record of withdrawal orders--where was
the commensurate effort to improve safety and health?
Presently there are several ongoing investigations, including an
ongoing criminal investigation. Perhaps these will provide some solace
to the families who are looking for accountability. Let us also hope
that this hearing will provide information on the Government and
company officials who should be held accountable, and lead us to some
additional steps which may be taken to avoid such horrific loss of life
in the future.
Senator Harkin. Senator Byrd, thank you very much for a
very profound statement, one that really gets to the nub of why
we're here.
I had opened with some questions earlier, for Mr. Main and
Ms. Smith. If you want to pose some questions, Mr. Chairman, I
would yield to you for any questions you might have for Mr.
Main.
Senator Byrd. Thank you, Mr. Chairman.
Yes, my first question is addressed to Assistant Secretary
Main--M-A-I-N. Given the disturbing safety record--and I mean
disturbing safety record--and the reputation of this particular
mine, why oh, why, oh, why did MSHA wait until after the
tragedy to launch an inspection blitz at coal mines with a
history I mean, a history of pattern violations?
Senator Harkin. Mr. Main.
Mr. Main. Senator, that's a fair question, I think, from
this body. I think, for those to understand why we did the
blitzes we did is to make sure darn sure we had no other Big
Branches that existed.
Senator Byrd. Can you understand him?
Senator Harkin. I'm trying to listen.
Say that again, Mr. Main.
Mr. Main. I think that is a very fair question to be asked
of us. And I can report why we did what we did, in terms of the
blitzes, to make sure there were no other Upper Big Branches
that existed with regard to conditions that pose those kind of
threats.
Senator Harkin. Again, let me just emphasize. Senator
Byrd's question asked, Why did you wait until after this
tragedy to launch this blitz of inspections, especially in a
mine that had a pattern and a history of violations?
Mr. Main. As we examine what we did, we're going to take a
look, to figure out what we did or didn't do. I think that what
was happening on the ground in West Virginia with the
enforcement folks that were there, they were using the tools
that they had been using constantly over the years, and a tool
that has been somewhat useful, to a great degree, to help fix
some of these problems; that's the 104(d) closure orders. And
as the record reflects, that mine did receive the most closure
orders of any mine in the United States last year. And, you
know, there's a question, I think, on all of our minds, you
know, What else could we have done there?
In retrospect, you know, I think that the--there would have
been more enforcement tools that were used, without anybody's--
without any question, at that mine. And having learned the
lessons that we have from that experience, we don't want to do
anything to ever repeat them again. And I think that we're
struggling right now to figure out what tools we can grab out
of the toolbag and create. And one of those is this 108 closure
order--injunctive order that we're looking at to move forward.
It's been in the MINE Act, I think, since 1969, and never
used--and trying to find tools like that.
We had the pattern of violations that--when we looked at
it, it was basically a broken system. That law was passed by
Congress after Scotia, in 1977. There hasn't been one single
mine ever put on the pattern of violations, except for one
mine, for a short period of time--and went to court and got
off. That signals that we have shortcomings.
Senator Byrd. Mr. Main.
Mr. Main. Yes, sir.
Senator Byrd. Why did MSHA wait until after the tragedy to
launch an inspection blitz at mines that had a history of
pattern violations?
Mr. Main. Senator, the only thing I can say is that the
agency didn't do it. That's something we have to take a look at
and figure out--you know, that's something we'll look at and
try to figure out what we did or didn't do.
Senator Byrd. Assistant Secretary Main and Solicitor Smith,
aside from the health and safety laws, what unconventional
remedies exist to deal with a rogue--R-O-G-U-E--rogue mining
company that has a reputation for flouting in other words,
waving its nose at the law? You want to answer that?
Ms. Smith. Senator, I would suggest that the criminal laws
may be where your answer lies. And I know that we have been
looking very carefully, and working with the U.S. Attorney, to
see what can happen in that regard. Aside from the health and
safety laws that you mentioned, I think that we really do have
to look at the penal law.
Senator Byrd. Mr. Main, I'd like to get your comment on
that. Why--let me ask you again--why--aside from the health and
safety laws, what unconventional remedies exist to deal with a
rogue mining company that has a reputation for flouting the
law?
Mr. Main. In terms of dealing with a rogue operator and
using the tools that we have at our disposal as a Federal
agency, you know, there are tools that we are constantly
developing, now, to do that. One is these blitz inspections.
We're looking at--and I don't know if you'd call it
``unconventional,'' but it's never been used before but--
injunctive relief to go after and shut down mines that have
records like Upper Big Branch, that we will be shortly
proceeding in court with. We are looking at ratcheting up all
the current tools that we have in our toolbag, to use those
more effectively.
I'll tell you a little story that's bothersome here. In the
midst of the Upper Big Branch tragedy, we had calls from miners
from three mines that got, apparently--I wouldn't say
``miners,'' they were anonymous calls; I should clarify that--
they got so fed up with the conditions that they were working
in that they called MSHA. Two of them came in on March 25. One
came in after Upper Big Branch. And miners complained about
illegal practices, illegal mining systems, illegal ventilation,
and coal dust in the mines that wasn't taken care of. We sent
inspectors to those mines on the afternoon shift. And people
should expect a bit more of this. About 8 o'clock in the
evening, we went to two of the mines, captured the phones, went
underground, and found illegal conditions that are unbelievable
in the 21st century.
We are changing our tactics. We figure that some of these
companies have us figured out pretty well, and we've got to
change our tactics and do things unconventionally, to be able
to go in and catch these mines when they're violating the law.
This was a Massey these were three Massey Energy mines. And
these were three Massey Energy mines where the conduct that we
found could not be considered any more that outlawish.
We have to change the way we do business. We have to get
some new standards in place. We have to go after those who are
operating like this. That's the reason subpoena power, in terms
of something we're pursuing, is important. We have to give
these miners a voice. Some of them are scared to death to speak
out about conditions they're stuck in. Having tools like that,
we believe, are necessary to fix this problem.
And I would point out, Mr. Chairman--I don't know if I
did--one of these complaints occurred after the Upper Big
Branch disaster.
Senator Harkin. I will have a follow-up question, after the
Chairman finishes, regarding why miners can't feel more free,
as whistleblowers, to make these kind of calls.
Senator Byrd. In his testimony, Mr. Secretary, Mr.
Blankenship states that MSHA certified the Upper Big Branch
mine to be in good condition--quote/unquote, ``good
condition''--prior to the April 5 explosion. Mr. Blankenship
says, ``MSHA officials forced--F-O-R-C-E-D--forced Massey
engineers to accept an unsafe ventilation plan, and suggests
that MSHA is trying to cover up its mistake in a secret
investigation. Now, this sounds like someone is trying to blame
your agency for the death of 29 miners. How do you respond?
Mr. Main. Thank you, Senator.
The first thing I'm going to say is that MSHA does not
run--or did not run--the Upper Big Branch mine; Massey Energy
did. They designed it. They hired the people. They conducted
whatever examinations that they decided to conduct, whether
that was in compliance with the law or not. But, they were the
ones that operated the mine.
With regard to us declaring this mine--certifying this mine
as safe or good, MSHA does not certify mines as safe or good.
So, I have no clue what the basis of that argument is. There is
no doubt in my mind that the conditions in that mine were not
good. And both our agency and others who take a look at this
would take great issue with.
As far as the ventilation plan is concerned, MSHA doesn't
design ventilation plans for mines. The process is that the
mine operator drafts the plan, submits it to MSHA for approval.
MSHA approves or disapproves the plan.
And let me comment on that statement about the conditions,
starting back in September, where MSHA had some so called
``influence'' over the crafting of Upper Big Branch's
ventilation plan. I want to walk through just a few issues that
happened, to help set the record straight here, and give some
understanding of what we're talking about.
On September 1, 2009, an inspector went into the Upper Big
Branch mine, went back into the longwall area and found that
the company was in the midst of a major air change. Under the
law, when you make a major air change, you evacuate all the
miners out of the mine. In this case, they had miners working
on the longwall and other sections of the mine. The inspector
also found that the air was reversed on this brandnew longwall
that they were putting into place. That meant it was going in
the wrong direction and was not being ventilated. There was an
airshaft that was put in on the back side of that longwall that
was delivering about 400,000 cubic feet of air, but for some
reason, the mining company couldn't figure out how to make that
air work to ventilate that longwall face. This was a mine that
was not being operated legally, endangering miners and--I would
say, gravely endangering miners in functioning that way. And
the inspector did what the inspector should have done: issued a
closure order on the mine and ordered every miner out of that
mine until they fixed it.
Under our process, MSHA has the tools; they find a
violation, they issue the appropriate enforcement action. And
whether that is a citation or a withdrawn order, MSHA orders
the violation it to be corrected. The company decides how
they're going to correct it, MSHA does not. But, they have to
correct it to satisfy the order.
In January 2010, MSHA goes back into the same longwall and
finds that the headgate entry that ventilate not only this
longwall, but a return off of another section, had deteriorated
to the point it wasn't travelable. The reason it deteriorated
is, the company didn't maintain the entry. It's that simple.
And what happened was, the air course that was coming off of a
second section that was required by law to be traveled,
couldn't be traveled. MSHA issued, appropriately, an order on
that mine, and ordered the mine to cease that activity until
the conditions were fixed.
This again placed the miners in grave danger in this mine,
in my opinion. The mine operator was required to fix it. And
the mine operator had to come up with its own options to fix
the problem.
But, these are the kind of conditions that we're finding.
It's--and if the--if Massey or any other company asked MSHA to
back off of an enforcement action because they don't like it,
MSHA's not going to do that; we're going to enforce the law.
Senator Harkin. Mr. Main, we'll have Mr. Blankenship on the
next panel. I'm sure we'll get into that. I ask you to stay
here during that period of time, after this panel is done to
try to get to the bottom of this.
I want to recognize Senator Murray.
Mr. Main. Okay.
Senator Murray. Mr. Chairman, thank you very much for
having this hearing. I appreciate it.
And, Ms. Smith, if I could start with you. You noted, in
your testimony, that changes to pattern of violations process
may be necessary to make it more useful as a tool to address
problem behavior in a more timely way. I wanted to ask you if
you believe that mine operators have taken advantage of the
current pattern of violations process.
Ms. Smith. Well, I think that one of the incentives for the
incredibly high increase in the contest rate we've seen is that
under the current pattern of violation standards, until there
is a final order, a violation doesn't count against a pattern
of violations. And we have seen, you know, a number of
operators have avoided a pattern of violations because they
have orders that are not final.
Senator Murray. So, is there something we can do to change
it so that this is taken seriously by mine operators?
Ms. Smith. MSHA is proposing regulatory changes, and we are
working with the subcommittee to look at statutory changes,
also.
Senator Murray. Okay. I look forward to seeing those.
Ms. Jordan, in your testimony, you said that in 2008 your
case backlog increased by 72 percent, and that, in fiscal year
2010, cases under 1 year of age constituted 25 percent of all
cases decided by the FMSHRC; 62 percent were 1 to 2 years old;
and 13 percent of decided cases were more than 2 years old. Is
there pressure on administrative law judges to close cases, due
to the backlog?
Ms. Jordan. Well, our judges--our productivity--we do keep
records of how many cases are disposed of. I think that the
judges are aware of the backlog, and I--the judges are very
hard working and conscientious. I don't think there's pressure
to not do a thorough job with what they need to do. But,
they're you know, it's sort of balancing that those factors.
There's a backlog, but--and judges--we are taking steps to, you
know, bring on assistants for the judges, clerks, and, of
course, bringing on more judges.
Senator Murray. But, people are looking whether you have a
backlog or not. And----
Ms. Jordan. Right. We also recently implemented a
procedural change that would help speed things along and make
it smoother for the judges. The majority of the cases get
disposed of by means of settlement. The parties reach a
settlement and they file a motion to approve the settlement
with the FMSHRC.
Senator Murray. So, over time, I would assume that means
fewer fines?
Ms. Jordan. That--no, not necessarily. I mean, it--the
parties reach a settlement and they file it with the FMSHRC.
The FMSHRC judges review that settlement, and they are free to
accept it or reject it. If they feel that it doesn't comply
with the statutory criteria or if there's a departure from the
amount of settlement that was originally proposed, the judge
may, and sometimes does, ask--rejects the settlement and asks
for an explanation, ``Why has the Secretary accepted--you know,
if they initially proposed a certain amount and now they're
settling the case at a different amount, what explains that
difference?'' and then has required the parties to come forward
and explain that.
We recently--until recently, our judges, though, has to
draft the order that got issued, approving that settlement. And
we've eliminated that step. We've now required the parties to
file a draft order with their motion, and to do that
electronically. And we hope that, you know, that change will
help expedite some of these cases, too.
Senator Murray. Okay.
Mr. Main, Mr. Blankenship is known to believe that Massey
Energy mines have been disproportionately targeted for mine
inspections and MHSA citations. Does MHSA disproportionately
target mines or issue citation frivolously?
Mr. Main. Senator, I don't think so. And I think that
whenever you look at some of the conditions that are being
cited and I just gave the recent example of three mines from
which we have received anonymous complaints MSHA went in on the
afternoon shift, captured the phones so they couldn't call
underground, and found the kind of conditions described in the
complaint. Those are the kind of things that mean that we have
to spend more time at mines like that.
Senator Murray. What kind of violations have you found at
Upper Big Branch?
Mr. Main. You know, I think there have been a range of
violations. Of the ones we've talked about probably the most
have been on the ventilation standards. Two of them I just
talked about, which was finding the mine inadequately
ventilated during inspections. There have been violations over
combustible materials, which is coal that could cause fires and
coal dust that could cause explosions. I think one of the
things that we're concerned about, in this particular case, was
excess coal dust in this mine--and we're going to check that
out, as part of the investigation. But, these are the kind of
conditions you worry about.
Senator Murray. Okay. Well, Mr. Blankenship said in his
testimony that the changes recommended in the violation plan
made the mine less safe. Can you speak to us about why the
Upper Big Branch was made to update its ventilation system? You
talked through that a minute ago. I was trying to follow it. If
you could do that again.
Mr. Main. Yes, Senator. I--from--I'm going to say this in
the context that we're still in the process of doing the
investigation of the mine, and it's going to be some time
before we get all these facts together.
But, in terms of some critical issues that I have looked
at, in terms of some of the paper that was issued at the mine,
to try to get a handle on that, we found that on September 1,
for example, when an inspector went into the mine and found
that they were making a major air change, with miners
underground; you don't do that. That's a violation of the law
that exposes miners to dangers, when you're moving air around.
They found that in the section the--one group of miners was
working the air actually reversed, it wasn't going in its
proper direction.
Senator Murray. So, the ventilation wasn't working
correctly.
Mr. Main. It was not working. I think, to the extent that--
in that case, if it's going the wrong direction, it is just
absolutely not working.
And those are the kind of things that I think tend to make
the agency concerned. And when you find that kind of attitude
about safety, MSHA is going to be spending more time there.
And I think if you look, historically, at that mine, the
inspection time was doubled from 2007 to 2009. I wasn't here as
Assistant Secretary at the time, but I think when looking back,
there was a reason for that. And the conditions we cited were
reflecting a reason the agency needed to be in there more.
Senator Murray. Okay. All right. Thank you very much.
And thank you, Mr. Chairman.
Senator Harkin. Thank you, I just had one follow-up for Ms.
Jordan. As you know, we just passed out of this subcommittee,
last week, a supplemental appropriations bill. In that there is
$3.8 million in funding for the FMSHRC. Now, I know that bill
still has to pass the Senate. We hope to do that next week.
Then we will get together with the House. But, sometime,
probably within the next few weeks, that bill will be law. I
think I can assure you that the money will be there.
My point in bringing this up is that it seems to me there
may be two ways that you can approach using this money. You can
hire fewer staff and stretch it out for a longer period of
time, or can hire more staff right now and hope that there'll
be more money later on. I would hope that you would pursue the
second course of action. You need personnel now. We are
committed to making sure that the FMSHRC gets the funding that
it needs. And we'll work to retain this funding in fiscal year
2011, by going somewhat over the President's request. So, I
hope I've made myself clear on that.
Ms. Jordan. You have. Thank you, Senator.
We, I agree with that approach. That, and we've been
looking at just such an approach that would give us the
flexibility, you know, to be aggressive in bringing on as much
staff as we can.
Senator Harkin. Very quickly, Dr. Howard, can you tell me,
what's happened to the Lake Lynn experimental mine and why it
hasn't been reopened.
Dr. Howard. Yes, Senator. I can answer the first part of
the question. The Lake Lynn experimental mine, as you know, is
an international research for safety and health. And certainly
in terms of dust and gas explosion research, there really is no
other laboratory in the world that can do that kind of
research, in addition to in-mine rescue equipment research and
ventilation studies, et cetera. So, every day that goes by
without us having access to that mine is a day that we
certainly are upset about.
The Centers for Disease Control and Prevention and the
Department of Health and Human Services are doing the best job
they can, in terms of real property acquisition of the mine. As
you know, there was a roof fall, recently, that blocked the
entrance. We've been trying to work through that issue.
We'd like to express our appreciation to you and the rest
of the subcommittee for the interest in reopening that mine.
It's a difficult property acquisition. I'm not an expert in
buildings and facilities in the Government, but it's not your
usual surface acquisition.
We hope that we can activate the standstill agreement and
reopen the lease of the mine and get back in there, perhaps
excavate another portal, so that we can work around the area
that the roof has fallen.
Senator Harkin. Well, I believe we have information on what
it would cost to do that. But, you might want to follow up and
give us an up-to-date estimate on what is required to reopen
that mine.
Dr. Howard. Will do.
Senator Harkin. I thank you very much.
I thank this entire panel. Thank you all very much, for
being here. Thank you for your testimony and you can all be
dismissed.
We'll call our second panel up.
Senator Harkin. We welcome our second panel.
Mr. Don L. Blankenship has served as the chairman,
president, and chief executive officer of the Massey Energy
Company, since November of 2000. He joined a Massey subsidiary
in 1982, earned his accounting degree from Marshall University
in Huntington, West Virginia.
Our second panel witness is Mr. Cecil E. Roberts. He served
as president of the UMWA for the past 12 years. Prior to
serving as president of the UMWA, Mr. Roberts spent 13 years as
vice president. Mr. Roberts received his degree from West
Virginia Technical College in 1987, and, of course, has
testified before this subcommittee several times over the
years. And we welcome you back here to this subcommittee.
Mr. Blankenship and Mr. Roberts, your testimony will be
made a part of the record in its entirety. And if you could sum
up the main points in 5 or 7 minutes or so, we would sure
appreciate it, so we could get into a discussion.
Mr. Blankenship, we'll start with you. Welcome, again, to
the subcommittee. And please proceed.
STATEMENT OF DON L. BLANKENSHIP, CHAIRMAN AND CEO,
MASSEY ENERGY COMPANY, RICHMOND, VIRGINIA
Mr. Blankenship. Thank you, Mr. Chairman. I appreciate the
opportunity to appear before the subcommittee this afternoon
and to discuss the Upper Big Branch accident.
No words can adequately describe the tragedy of April 5. I
visited, personally, despite media reports, with most of the
wives, children, parents, and family members of Massey who lost
their lives. In these meetings, I extended to them my deepest
sympathies and committed to do whatever I needed to do to
attend to their needs, the needs of their--those who had lost
their loved ones. I personally heard their expressions of grief
and saw, in the eyes, unspeakable sorrow that they had. It's
too late to bring back those that we lost, but we must do
everything we can to find out what happened and to do our best
to keep it from happening again.
Massey strongly supports the principle that the
investigation at Upper Big Branch must be independent, honest,
and aggressive. Transparency is an important element of the
process.
Senator Byrd. Mr. Blankenship, would you speak a little
louder?
Mr. Blankenship. Yes, sir.
Senator Byrd. And clearly, into the microphone.
Mr. Blankenship. I will pull it up here and try to help
that.
What I was saying is, that transparency is an important
element of the process of the investigation. Massey Energy has
joined with other stakeholders, including UMWA, in calling on
MSHA to conduct this investigation through a public hearing,
rather than through closed door sessions.
Today, I want to address Massey's overall commitment to
safety, discuss our interactions with MSHA regarding
inspections and appeals, and discuss ways that we can work
together with MSHA to make mine safety and accident
investigations more transparent.
Let me state for the record, Massey does not place profits
over safety. We never have and we never will. Period. From the
day I became a member of Massey's leadership team, 20 years
ago, I have made safety the number one priority. The result has
been a 90 percent reduction in lost-time accidents, which has
been better, often dramatically better, than industry average
in 17 of the last 19 years. Our safety innovations have been
adopted by our competitors and been praised by MSHA. In fact,
last year, MSHA honored Massey with an unprecedented three
Sentinels of Safety awards, the highest safety award in the
mining industry.
Next, I want to talk about the issue of citations and
appeals. First and foremost, abatement is mandatory. Even if a
citation is appealed, any deficiency must be corrected
immediately. For most citations, the condition is corrected the
same day. At Massey, we always fix the problem, even if we
disagree with the punishment. Massey does not, quote, ``game
the system,'' as some have insisted. Rather, we are exercising
our right to due process under the system that Congress has put
in place.
We do not benefit from a system in which appeals are
backlogged for months or years. And we urge Congress to
appropriate the necessary resources that are necessary to make
the appeal process work safely and quickly.
At the Upper Big Branch mine, we work together with MSHA to
address citations and to ensure that the mine remains safe.
Between April and October 2009, 47 D orders, which are the most
serious violations, were recorded at Upper Big Branch. That
presented a challenge that we would not tolerate at Massey and
did not ignore. In response, Massey convened a hazard
elimination committee comprised of top managers, and reduced
these violations about 80 percent. In fact, MSHA held its
quarterly closeout meeting a few days prior to the explosion
and determined that there was no major issues and that the mine
was in good condition. Let me repeat, to make it clear, that,
just days before the April 5 explosion, MSHA agreed that the
Upper Big Branch mine had no major outstanding safety issues,
and found the mine to be in good condition.
At Upper Big Branch, we complied with MSHA safety orders
even when we strenuously disagreed with them. In particular, we
disagreed with MSHA's ventilation plan for the Upper Big Branch
mine. Against the advice of experts, MSHA required several
changes, since September 2009, that made the ventilation plan
much more complex. This change significantly reduced the volume
of fresh air to the face of the longwall mining operation. Our
engineers resisted making the changes in one instance, to the
point of shutting down production for 2 days, before being
forced to agree to MSHA's changes. We opposed the changes
because our engineers believed they made the ventilation system
less effective, not because they were more costly or because
they interfered with production.
We do not know whether the ventilation system played a role
in the explosion. And we do not know whether the modifications
to that system, demanded by MSHA, played any role in the
explosion. But, our disagreement with MSHA over the ventilation
plan highlights what we believe is a fundamental flaw in the
way this accident is being investigated. It is simply this: We
do not think that MSHA should be permitted to investigate
itself behind closed doors. How likely is it that MSHA will
point the finger at themselves, if the evidence gathered in
confidential interviews suggests that the actions their
actions--contributed to the explosion? How do we know, if we
don't see the evidence and if MSHA investigates in secrecy?
Other safety agencies don't work that way. After an
aircraft accident, the independent National Transportation
Safety Board conducts its investigation in public. They look at
both the airline operator and the Federal regulator. That is
why we have called for open, public, and transparent
investigations at Upper Big Branch.
PREPARED STATEMENT
In conclusion, Mr. Chairman, Massey Energy continues to
mourn the loss of our miners. We are caring for the families
who lost their loved ones. And we are determined to find out
what happened.
At the same time, we all need to recognize the importance
of the coal industry to the economy and to the security of the
United States. Coal is an abundant, affordable, and reliable
source of energy that reduces our dependence on foreign oil.
Pointing fingers and hurling accusations does not change that
vital role that coal plays in America's energy future. This is
a time for industry leaders and the regulatory agencies to work
together so that America's coal miners can be safe and can
provide the energy that our Nation relies on.
I'll be happy to answer your questions, whenever you're
ready.
[The statement follows:]
Prepared Statement of Don L. Blankenship
Mr. Chairman, I appreciate the opportunity to appear before the
subcommittee this afternoon to discuss the Upper Big Branch (Upper Big
Branch) accident that took the lives of 29 valued Massey members. April
5 was one of the worst days of my life and in Massey Energy's history.
But the grief we have felt since that day pales in comparison to the
pain and loss endured by the family members who lost their husbands,
brothers, sons, and grandsons that day. I was with the families in the
week following the tragedy, and I have gained a profound respect for
their faith and their love and commitment to the miners lost in the
accident.
I have pledged that Massey Energy will do everything that is
humanly possible to learn the cause of the explosion so that we can
take every measure to prevent this type of accident from happening
again. Massey is cooperating fully with State and Federal investigators
and is conducting its own investigation into the accident as well so we
can discover the truth. Furthermore, Massey Energy has joined with
other stakeholders, including the United Mine Workers, in calling on
MSHA to conduct its investigation of the Upper Big Branch mine
explosion in the full sunlight of day, in front of the families of the
miners, the mining community, and the American public.
Today, I want to address Massey's overall commitment to safety,
discuss our interactions with MSHA regarding both inspections and
appeals, and discuss ways that we can work together with MSHA to make
mine safety and accident investigations more transparent.
From the day I became a member of Massey's leadership team 20 years
ago, I have made safety my number one priority. I felt that other
safety programs were too reliant on slogans and signs. So I designated
safety as S-1: Safety First.
Massey has long been an innovator of safety enhancements and has
introduced many safety practices that have later been adopted
throughout the mining industry in the United States and around the
world. Since the establishment of our S-1 safety program, the
innovation has increased. The following is a chronology of just a few
of these Massey innovations:
--1993.--Massey mandates the use of reflective clothing; Massey
mandates use of metatarsal work boots for mining operations.
--1994.--Massey implements seat belt policy for all mining equipment.
--1995.--Massey designs, develops, and implements ATRS flapper pads
for roof bolters; Massey replaces ladders on large trucks with
steps to reduce falls.
--1996.--Massey requires the use of strobe lights on underground
vehicles.
--1999.--Massey installs lights on all belt line feeders; Massey adds
submarine safety package on stockpile dozers and loaders.
--2000.--Massey requires the use of reflective tape on all surface
vehicles.
--2002.--Massey adds submarine safety package on highwall excavators
and shovels; Massey implements continuous miner radio remote
safety precautions.
--2003.--Massey installs safety cameras on surface haulage trucks.
--2005.--Massey begins development of continuous miner proximity
protection device.
--2007.--Massey develops self-contained foam fire-fighting car.
Our next round of continuous miners will be the first in the world
to have proximity devices on them that will shut down equipment if a
coal miner is too close to them to be safe. And, we are near completion
of a new hard hat design that we believe will be adopted by the entire
coal industry.
Today, Massey Energy's safety program has more than 120 rules and
equipment enhancements that exceed legal requirements. The result has
been a 90 percent reduction in our lost time accident rate, which has
been better--often dramatically better--than the industry average for
17 of the last 19 years. Our safety innovations have been adopted by
our competitors and have been praised by MSHA. In fact, just last fall,
MSHA honored Massey Energy with three Sentinels of Safety awards, the
highest safety honor in the mining industry. No other mining company
has ever matched that accomplishment.
So let me state for the record--Massey does not place profits over
safety. We never have, and we never will.
No coal company can succeed over the long term without a total
commitment to safety and a significant investment in necessary
training, equipment and personnel. We strive to remain an industry
leader in safety by developing new technologies and employing effective
training programs to reduce accidents and improve safety for all of the
hard-working men and women of Massey Energy.
Next, I want to talk about the issue of citations and appeals.
Massey's approach to safety is simple. First and foremost, abatement is
mandatory. If MSHA identifies a safety violation and issues a citation,
abatement is also mandatory. That means that even if the company
appeals the citation, the equipment at issue, or the area of the mine
in question, does not operate until that cited hazard is fixed. The
large majority of violations are corrected the same day, often
immediately. For those that require more time to correct, a deadline is
given by the inspector. The company has no choice in the matter, and
must follow the direction of the inspector. This is process established
by Congress in law.
We do appeal many of the citations, not to avoid correcting a
problem, but because we disagree with the inspector's judgment or
because we believe that a proposed penalty is unfair. The right to a
fair hearing before a neutral factfinder is fundamental to our system,
and Congress has guaranteed that coal mine operators, just like every
other business and every individual share the right to due process of
law. That means trial first, and punishment later, not the other way
around. Since Congress made fundamental changes in the system in 2006,
Massey's rate of appeals have been consistent with industry average.
Just as important, through adjudications and settlements, the final
penalties imposed are nearly 40 percent less than what MSHA proposed--a
sure sign that our appeals are not frivolous nor are they taken for
purposes of delay.
So as you can see, Massey Energy does not ``game the system,'' as
some have insisted. Rather, we are exercising our rights to due process
under the system that Congress has put in place. We do not benefit from
a system in which appeals are backlogged for months or years and we
urge Congress to appropriate the resources necessary to make the appeal
process work fairly and expeditiously.
At the Upper Big Branch mine, we worked together with MSHA to
address citations and ensure that the mine remained safe. Between April
and October 2009, 47 D orders, which are the most serious violations,
were recorded at Upper Big Branch. That presented a challenge that we
would not tolerate and did not ignore. In response, Massey convened a
Hazard Elimination Committee comprised of top managers and reduced
these violations by 80 percent. In fact, MSHA held its quarterly close-
out meeting a few days prior to the explosion, and determined that
there were no major issues and that the mine was in ``good condition.''
Let me repeat that to make it clear. Just days before the April 5
explosion, MSHA certified that the Upper Big Branch mine had no
outstanding major safety issues. It found the mine to be in ``good
condition.''
At Upper Big Branch, we complied with MSHA safety orders even when
we strenuously disagreed with them and believed them to be detrimental
to the health and safety of the mine. In particular, we disagreed with
MSHA's ventilation plan for Upper Big Branch mine. Against the advice
of our own experts, MSHA required several changes since September 2009
that made the ventilation plan significantly more complex. This change
in ventilation significantly reduced the volume of fresh air to the
face of the longwall mining operation during this period. Our engineers
resisted making the changes, in one instance to the point of shutting
down production for 2 days, before agreeing to MSHAs ventilation plan
changes. We opposed the changes because our own engineers believed they
made the mine less safe, not because they were more costly or because
they interfered with production.
We do not know whether the ventilation system played a role in the
explosion, and we do not know whether the modifications to that system
demanded by MSHA played a role in the explosion.
But our disagreement with MSHA over the ventilation plan highlights
what we believe is a fundamental flaw in the way the investigation of
this accident is to be investigated. It is simply this: We do not think
that MSHA should be able to investigate itself behind closed doors. How
likely is MSHA to point the finger at itself if the evidence gathered
in confidential interviews suggests that its actions contributed to the
explosion? How do we know we'll see all the evidence, or if all
alternatives are aggressively explored if MSHA can investigate in
secrecy?
Other safety agencies don't work that way. After an aircraft
accident, the independent National Transportation Safety Board conducts
the investigation in public. They look at both the airline operator as
well as the Federal regulator--in this case the Federal Aviation
Administration. That is why we have called for an open, public, and
transparent investigation into the Upper Big Branch mine accident.
In conclusion, Mr. Chairman, Massey Energy continues to mourn the
loss of our miners. We are caring for the families of those who lost
their lives. And we are determined to find out what happened and make
sure that it cannot happen again. I would be happy to answer any
questions at this time.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Harkin. Thank you very much, Mr. Blankenship.
And we'll turn to Mr. Roberts. Again, please proceed. If
you could sum up in 5 to 7 minutes or so, I'd appreciate it.
STATEMENT OF CECIL E. ROBERTS, INTERNATIONAL PRESIDENT,
UNITED MINE WORKERS OF AMERICA, FAIRFAX,
VIRGINIA
Mr. Roberts. Thank you very much, Mr. Chairman.
First of all, let me express the gratitude of the coal
miners and this Nation for the work that this subcommittee has
done in the past and the support that you have provided MSHA
and others to protect the Nation's coal miners. We owe you a
great deal of gratitude.
And to my friend and coalminers' friend, Senator Robert C.
Byrd, I want to say thank you for more than 40 years of
standing up for coalminers. But, I want to pay particular
tribute to the fact that we just recently celebrated the 40th
anniversary of the 1969 Coal Mine Health and Safety Act. And
for those who believe that laws don't work, I want to point out
something, if I may. The 40 years before the passage of the
1969 Coal Mine Health and Safety Act, 32,000 plus coalminers
died in the Nation's mines--32,000 plus. Since the passage of
the Act, 40 years ago, 3,200 plus miners have died. So, there's
been a savings of 29,000 lives because Congress saw fit to act
in 1969, and Congress saw fit to act again in 1977, and
Congress acted again in 2006.
So, we stand here today to thank Congress for standing up
for the coal miners of this Nation to protect them when they go
to work. There's not a coal miner in this country that doesn't
have a right to go out that door with their dinner bucket, and
kiss their wife goodbye, and their children goodbye, and say,
``I'll see you in about 9 or 10 hours.'' That's not
unreasonable to expect.
I would also like to say that we mourn the loss of those 29
coal miners at Upper Big Branch. They were Don Blankenship's
employees. They were my friends. I knew a number of these
people. I was raised with their families, lived right among
them. And as--four of these miners who died were from Cabin
Creek, where I was raised. So, we've looked into their eyes
also, we've seen the tears of these people's eyes.
But, there's another 23 miners we should mention right here
today. There's been 23 other coal miners that have died in
Massey mines in the past 10 years. At the time of the Upper Big
Branch explosion, Massey Energy had the worst fatality rate in
the industry. This is before the Upper Big Branch explosion.
So, now, we have 52 miners that have been lost at Massey Energy
in 10 years. This is unacceptable. I think that the fact that
other Massey Energy mines have been inspected, since this
explosion and before this explosion, in close proximity of that
time, and been determined to be unsafe--and, quite frankly, one
of the upper leaders of MSHA declared that this was pitiful,
that these mines were in terrible condition. So, it's not just
what happened at Upper Big Branch. We've got 23 other miners
who died before the Upper Big Branch explosion. We've got the
29 miners who died the day of the explosion. And as we gather
here right now, the real question for all of us, whether we're
in Congress, whether we're leading this company, whether we're
leading this union, How are we going to protect every single
coal miner working at Massey Energy, and for that matter,
across this Nation?
When I testified previously at one of the other committees,
I said that 95 percent of the CEOs and companies in this Nation
try to do the right thing. They put a lot of money into
protecting their workers. They have inspections. And they have
criteria for working in those mines. And I will tell you, as
Don Blankenship is sitting beside me, these other CEOs would
not have put up with this for 5 minutes. Someone would have
done something about this.
You asked me and the subcommittee asked, appropriately,
before, and it asked MSHA before and it asked MSHA the last
time I was here, Why didn't you shut these mines down? I think
that's a proper question.
The other question I'd like to pose is, Why didn't Don
Blankenship shut this coal mine down? We don't have to question
his authority. He runs this place. He could have walked up
there and said, ``This mine is shut down. This mine's not going
to operate another minute until we correct these problems.''
So, we can ask MSHA this. And MSHA's got a lot of
explaining to do with this with respect to this, also.
PREPARED STATEMENT
But, the laws are written by Congress here. Those laws are
supposed to be obeyed by this industry. Those laws are supposed
to be enforced by MSHA. And then those people who do not
protect the miners and follow those laws, they should be
punished, up to and including jail. And I don't think it should
be just the section foreman working down at Upper Big Branch.
There is pattern here that's running completely through this
mining industry with respect to Massey Energy. And I'm saying
the same thing here today that I said previously, and I say it
publicly: I believe that.
Thank you for your time, Mr. Chairman.
[The statement follows:]
Prepared Statement of Cecil E. Roberts
Thank you for giving us this opportunity to testify before this
Appropriations subcommittee. As President of the United Mine Workers of
America (UMWA), I represent the union that has been an unwavering
advocate for miners' health and safety for 120 years.
This subcommittee plays an important role in ensuring miners'
health and safety: adequate funding of the different Government
agencies that contribute to miners' health and safety is essential to
protecting our Nation's miners. We certainly appreciate your leadership
in asking whether the various agencies with such responsibilities have
sufficient funding, and whether additional resources are needed to
protect miners.
We suggest there are three separate, but related issues to consider
about Government support: manpower; materials and equipment; and
research and development. For each of these, there are current needs
that would benefit from additional support. We are pleased to have this
chance to share our thoughts about what the Government can do to better
help protect our Nation's workers from unsafe and unhealthy work
places.
Before I speak to the main topic, however, I wish to take a moment
to remember the 29 miners killed last month at Massey's Upper Big
Branch (Upper Big Branch) mine, as well as the miner who remains
hospitalized. Our hearts and prayers go out to all their families. Even
though that mine was nonunion, all miners mourn when one of our own is
killed working in a mine; our entire community has been devastated by
this horrific tragedy.
We believe that investigations of the Upper Big Branch tragedy will
show that safe mining practices were not followed at that operation and
miners were being exposed to senseless dangers. We already know that
MSHA issued 515 citations and orders at the Upper Big Branch mine in
2009, and another 124 so far in 2010; moreover, the paper MSHA issued
to Upper Big Branch reflects serious health and safety violations: 39
percent of the 2009 citations were for ``significant and substantial''
(S&S) violations. These violations are usually quite serious--the kind
of violations that can contribute to mine fires, explosions and the
deaths of coal miners. Even more troubling is the fact that for the
Upper Big Branch mine, in calendar year 2009 MSHA issued 48 withdrawal
orders pursuant to section 104(d)(2) of the Mine Act for S&S violations
the operator knew or should have known constituted a hazard; as well as
a section 107(a) withdrawal order for an imminent danger. These numbers
far exceed industry norms. We are disturbed that these conditions were
allowed to develop and continue and believe that a consistent and
aggressive enforcement scheme is necessary to protect the Nation's
miners. For in the end it's miners who pay the price when operators do
not adhere to what the law requires. Unless operators operate mines
consistent with legal requirements, we will continue to witness miners
dying.
To address some of the present shortcomings we urge the Government
to provide support in the form of additional staffing in the key
agencies, as well as for the purchasing of up-to-date equipment to
better support miners' health and safety.
manpower
We believe there is a need for increased staffing at MSHA, within
the Department of Labor Solicitor's Office (SOL), at the Federal Mine
Safety and Health Review Commission (FMSHRC), and at NIOSH for the
Government to have a more effective mine health and safety program.
Over the last few months, there has been an important and much-
needed focus on the huge backlog of cases at the FMSHRC. We firmly
believe that this backlog has served to undermine some of the changes
Congress directed in the MINER Act of 2006. This pertains directly to
the Appropriations process insofar as more FMSHRC judges are needed to
reduce the backlog, which, in turn, is needed to restore the enhanced
penalty structure Congress designed through the MINER Act. While we are
pleased that $22 million of additional funding was included in the
supplemental budget bill that the Appropriations Committee recently
passed to address these needs, the backlog will persist for many years
unless the increased budget levels continue to support staff increases
at the FMSHRC, MSHA, and the DOL's SOL.
The FMSHRC backlog has arisen since passage of the MINER Act in
2006, and the related increase in Mine Act penalties: for 2006, MSHA
assessed about $35 million in penalties, while for 2009 assessed
penalties rose to about $141 million. With the increase in penalties,
the number and rate of contested cases also jumped. For each of the 5
years immediately before the MINER Act (2000-2005), only 5-7 percent of
coal mine civil penalties lead to cases being contested before the
FMSHRC, whereas for the last 3 years (2007-2009), the rate increased to
18 percent, 30 percent and 31 percent, respectively.
Why is this important? Because without a meaningful structure for
imposing and collecting the penalties, the congressional goal of
increasing fines for Mine Act violations has not been realized. In
fact, the higher penalty structure is being subverted by (a) the huge
rate of contests that operators now file, overwhelming the Government's
ability to deal with its caseload, and (b) MSHA's practice of reducing
assessments when operators contest them.
When operators contest the citations and penalties, there is a
delay to their finality. This delay prevents MSHA from imposing the
enhanced penalties that apply for repeat violations, or from placing an
operator with numerous violations on a ``pattern of violations.'' Thus,
while the higher penalty structure was designed to motivate operators
to not have repeat violations, operators have been able to avoid them
by delaying a final order that would show the repeat violation.
Likewise, MSHA's powerful ``pattern of violations'' enforcement tool
becomes frustrated when citations are caught up in the FMSHRC's
backlog. MSHA's determination that a mine has a ``pattern of
violations'' carries much more serious consequences, and a mine must
have an inspection free of S&S violations in order to get off of the
``pattern.''
In short, having a significant delay in the resolution of alleged
violations diminishes MSHA's ability to use its full arsenal of its
enforcement tools. Yet, many of the violations caught up in the contest
process are quite serious--the kind of violations that contribute to
mine fires, explosions, and the deaths of coal miners.
Another problem follows when operators challenge MSHA citations and
proposed penalty assessments, and they routinely see their penalties
reduced. This occurs both at the MSHA ``conference'' as well as after a
case is referred to litigation. Reductions often occur at conferences
when the mine inspector who issued the citation does not attend the
conference to explain the reason for the citations, leaving the
conferencing officer with no first-hand knowledge of the conditions
cited. The operators, on the other hand, regularly send their
representatives to conferences to dispute the validity and gravity of
the citations that were issued. As a result, conferencing officers
frequently reduce or abate citations. We encourage MSHA to provide a
better means for the inspectors to be able to support their citations,
preferably with the inspector participating, too. We think it would
also be helpful if an attorney from the SOL would be assigned to work
with conferencing officers to help them identify the litigation
strengths and weaknesses before any adjustments would be made. This
would require additional staffing at both MSHA and within the SOL.
While the FMSHRC has had certain time-lines for processing its
cases, those no longer bear any relationship to reality. However,
getting timely resolution of these disputes is critical to miners'
health and safety. One possible help would be for the FMSHRC to adopt
procedures like the OSHA Review Commission's ``Simplified
Proceedings;'' in our testimony before the House Committee on Education
and Labor in February of this year, the Union supported having the
FMSHRC determine whether using such procedures would be appropriate for
mine safety cases. We are unaware of any progress the FMSHRC may have
made in this regard since that February hearing.
MSHA has indicated a more aggressive rulemaking agenda, which we
support. However, such rulemaking efforts will likely require
additional staffing, too.
To be most effective, we also believe MSHA needs to expand its
cadre of in-house specialists. MSHA employs experts in such critical
issues as ventilation, electrical systems, roof control, and ground
control. The specialists review mine plans operators submit for MSHA
approval before operators can implement their mining plans. These
experts are also needed to defend MSHA citations when operators
challenge them, as well as to investigate accidents. It is essential
that MSHA fully staff and train its specialists to ensure the Agency
keeps pace with industry advancements. In addition, with recent and
anticipated retirements of MSHA's specialists, the Agency must attract
and train additional specialists to maintain its in-house expertise. It
takes time for MSHA specialists to be able to perform the full range of
required tasks, so this is an area that requires on-going support.
We further recommend that MSHA affirmatively and repeatedly educate
workers and management alike about the miners' right to work safely:
the Mine Act includes strong worker protections, but we know all too
well that miners, especially nonunion miners, do not exercise these
rights. Some simply do not know or understand them, but many more are
too intimidated to speak up. As information widely disclosed since the
Upper Big Branch disaster has demonstrated, miners become accustomed to
accepting the status quo: work or go home, just don't rock the boat. In
the coalfields, good paying jobs are treasured and workers are hesitant
to voice safety complaints for fear of getting discovered. Under the
current law, the operator performs mine safety training and annual re-
training, but for miners' rights training that we recommend be added,
it is imperative that MSHA do the training. In particular, we suggest
that MSHA educate miners--hourly and management--and no less often than
yearly: about the miners' rights to work safely; to withdraw when
conditions are dangerous; and to phone the Government (even
anonymously) about conditions, as well as about the criminal penalties
that can attach if an operator interferes with the miners' exercise of
these safety rights.
I am attaching a letter I submitted to the Senate HELP Committee
earlier this month, in which I explain some of the many areas requiring
additional Agency attention to improve miners' health and safety. Some
of the proposed changes will require legislative action while others
can be accomplished through rulemaking or internal policy. Regardless
of the procedure by which the various changes can be made, many will
require additional MSHA personnel to effect the needed improvements.
niosh
In connection with our recommendations, below, for additional
support for research and development, we believe it will be necessary
to fund additional personnel for NIOSH to continue the valuable work it
offers to the mining industry. Because of the very small customer base
for the mining industry, NIOSH performs critical research and
development for the technological advancements that improve miners'
health and safety.
While we are not presently aware of the particular personnel needs
of NIOSH, we feel it is essential to miners' health and safety that
NIOSH be well-funded.
equipment
It is essential that MSHA have equipment to enforce the laws and
regulations governing miners' health and safety, as well as the best
equipment available to respond to mine emergencies. It currently falls
short on both fronts.
Lake Lynn, is an MSHA facility near Pittsburgh that is used for
testing mining equipment. However, it has been shut down for some time
due to structural damage of the roof that occurred while blast-testing
seals to meet the criteria of the MINER Act. This facility is a great
resource to miners for testing new technologies; it is also a great
training facility for mine rescue team members. Without the Lake Lynn
facility, the mining industry tests products at various mine sites.
However, that is not satisfactory and we nearly lost a Jim Walters
operation in Alabama to a mine fire while doing a test for a mine
sealant. It could have resulted in loss of lives and a mine shutdown.
Therefore, we urge an allocation of funds to reopen the Lake Lynn
facility.
The UMWA training center in Pennsylvania is another valuable
facility for miners that is deserving of the Government's financial
support. This center offers invaluable training for new miners,
underground electrical training, and mine rescue teams.
Another valuable tool for enhanced training lies with the virtual
reality training system. We urge an allocation of funding for the
purchase of this state-of-the-art technology that allows miners to
experience and respond to real hazards in a safe and controlled
setting. For example, it can show miners how best to escape a mine
disaster, as well as how to respond to underground rib and roof
stability problems. This technology would be especially helpful for
mine rescue teams, but all miners would benefit from its use.
MSHA would benefit from additional funding for improved
communications and training within the Agency. For inspector training,
technical support, and improved emergency response, MSHA must be able
to communicate with its own staff quickly and efficiently. We
understand additional funding is needed to bring the Agency's equipment
up to today's standards.
We also support the creation and funding of another mine emergency
operations center, to be located in the Midwest. At the present, such
centers are located in the East (near Pittsburgh, Pennsylvania and
Beckley, West Virginia) and the West (Provo, Utah). However, if there
were a mining disaster in the Midwest, where mining activities have
been increasing, MSHA does not have equipment in reasonable proximity
to respond quickly.
Other equipment that would help MSHA better enforce existing laws
and regulations as well as to best respond to mine emergencies include:
--Coal Dust Explosibility Meters.--This is a portable device that
quickly measures coal and rock dust mixtures to determine
whether they are in the explosive range. As it now stands,
samples an inspector collects are sent away and take about 2
weeks to process. For example, it was only after the Upper Big
Branch mine explosion that we learned the mine had an
impermissible coal and rock dust mixture shortly before the
explosion. Having immediate information about the combustible
content in a mine could prevent future explosions.
--Mine Rescue Robots.--MSHA has at least one such robot, but more
would be helpful for emergency responsiveness. These robots
operate remotely and can go where it may be unsafe for rescuers
to travel. The robot can provide real time data as well as
video to help plan a rescue effort. We understand that the cost
for each one is approximately $265,000.
research and development
Under both the Mine Act of 1977 and the MINER Act of 2006, Congress
anticipated that NIOSH would provide critical research and development
of technology and materials for the mining industry. It must be fully
funded to continually improve and enhance miners' health and safety.
Along with MSHA, industry, and union representatives, NIOSH
developed proximity detection technology that is expected to
dramatically improve safety around the huge mining equipment that is
used both underground and on the surface. Before the Upper Big Branch
disaster, MSHA determined that about 20 percent of the fatal accidents
in the last 5 years could have been prevented through use of proximity
detection equipment.
NIOSH also developed a collapsible drill steel enclosure that
reduces roof bolting noise levels and also captures float coal dust to
reduce its adverse health hazards, as well as a mobile manipulator that
can lift and maneuver loads of up to 600 pounds.
We need NIOSH to help develop the next generation of self-contained
self-rescuers, the units miners carry for whenever a mine emergency
disturbs the underground atmosphere turning the air toxic. Today,
miners are unable to speak with each other while wearing a SCSR, yet
they cannot live if they take even a breath or two of the postdisaster
poisonous air. There is also a pressing need for research directed at
the development of tamper-proof machine-mounted methane monitors (also
called ``sniffers'') that will automatically cut the power to a machine
if the sniffer is blocked, bridged or in any other way preventing
proper methane readings; these are needed to warn miners of excessive
concentrations of methane.
In short, NIOSH's research and development efforts are essential to
advancing miners' health and safety.
conclusion
We rely on the Government to enforce the mine health and safety
laws and regulations to protect miners' health and safety. The
Government needs to have adequate resources to do so efficiently and
effectively. It also must have up-to-date equipment that is physically
proximate to be accessible in the event of mine emergencies. Additional
resources are needed to accomplish these goals, and we appreciate your
help realizing them. Thank you for allowing us to address this
subcommittee, and for your continued commitment to workers' health and
safety.
Senator Harkin. Thank you Mr. Roberts.
I will yield, for opening questions, to Senator Byrd.
Senator Byrd. Mr. Blankenship, do I have your attention?
Mr. Blankenship. Yes, sir.
Senator Byrd. Do I?
Mr. Blankenship. Yes, sir.
Senator Byrd. We have all heard, or we've all read, about
the number of times that Massey mines have been cited--C-I-T-E-
D--cited for safety violations in the past months plural--M-O-
N-T-H-S. And we all know of the recent carnage at Massey's
Upper Big Branch mine. Twenty-nine men are now dead dead dead
simply because they went to work that morning.
I'm also concerned about the Massey record--R-E-C-O-R-D.
Apparently, these safety violations are nothing new--nothing
new. According to MHSA figures, during a 10 year period-1995 to
2006--Massey mines had a total of 1998 injuries and 24 deaths--
24 deaths. Massey Mines were cited for 31,000--I'm going to
repeat that. Massey mines were cited for 31,000 violations.
This means that, on the average during that 10 year period, a
miner was seriously injured every other day. There were 10
safety violations every day--every single day at Massey mines.
Let me add an exclamation point there. And I'll say again,
there were 10 safety violations every day at Massey mines. And
this is clear--I mean, as clear as the noonday sun in its
cloudless sky--every day at Massey mines. And this is a clear
record. A blatant--B-L-A-T-A-N-T--blatant disregard for the
welfare and the safety of Massey miners. Shame.
Would you care to comment?
Mr. Blankenship. Yes, Senator. First of all, we take
violations extremely seriously. The criteria, after the MINER
Act, greatly changed on violations, as I think everyone
understands. As I said, in my opening statement and in my
submitted testimony, I've reduced the accident at rates Massey
by 90 percent during my tenure as chairman.
At Upper Big Branch, we didn't sit idly by. And once we
recognized how many violations we were having, we formed a
hazard elimination committee, and reduced citations at Upper
Big Branch by nearly 80 percent.
We've worked very hard with MSHA, and very hard in our own
company, to find ways to make miners safer. We have more than
120 rules and policies at Massey that exceed the law. We've
been the, if you will, most significant innovator of new
technology, including everything as simple as reflective
clothing to as complicated as the fact that this year we will
buy the first --the miners with proximity devices on them.
We're developing new helmets to make it safer. We've led the
industry in safety innovation, and we have made every attempt
to deal with the violations--and continue to do so, and will
continue to do so because we believe in eliminating hazards for
our coal miners.
Senator Byrd. Mr. Roberts, would you like to respond?
Mr. Roberts. Yeah, let me thank you, Senator, for the
opportunity.
The effort to reduce the number of violations and make the
Upper Big Branch mine safer, if you look at the first quarter
of 2010, and take the number of violations that were issued in
the first quarter, after Mr. Blankenship says he assigned this
specialty team, they were on a pace--if you take the numbers
that they were issued, the violations they were issued in the
first quarter, and project them out for a year, 500 violations.
Now, I would suggest that that's not a record that anyone
should come in here and say they're proud of.
The other thing is, they were also shut down, I believe,
seven times for serious violations in that first quarter. That
projects out being shut down by MSHA, the agency charged with
enforcing the laws that Congress passed, 28 times.
And then, I would just like to add a human element to this,
if I might. There is evidence there that miners were scared to
death. There was a young man named Josh Knapper--I know his
family--25 years old. He wrote a letter to his mother, his
fiance, and his baby, and said, ``If I die, I want you to know
I love you.'' Now, that's the kind of letter people used to
write going to Vietnam. And that's the kind of letter people
write today, going off to war in the Mid East, in Afghanistan
and Iraq. That is not the kind of letter you're supposed to
write going to work with your dinner bucket.
Senator Byrd. Mr. Blankenship, miners have rights under the
law to walk away from an unsafe work environment. But, there
are some people who say that the miners are afraid of losing
their jobs, so don't rock the boat. How often do Massey miners
request transfers because of safety concerns? Let me ask that
question again. How often do Massey miners request transfer--
because of safety concerns?
Mr. Blankenship. I don't know that we keep a statistic on
requested transfers. I can tell you that we did a survey, I
believe in February of this year, where we anonymously asked
our people if they felt safe on the job, and whether they
thought Massey's S1, which is our name for our safety program,
made them safer than at competitor mines. And, anonymously, 93
percent confirmed that they felt not just as safe, but safer.
I can tell you that we take very quick action on
individuals that violate our safety rules as we become aware of
them. We discharge more people for failing drug tests and
safety than we do for anything else. So, we're constantly
trying to enforce upon people how important we consider
violations, how important we consider safety. We've invested
tens of millions of dollars beyond the law. We have our own
safety manual that exceeds MSHA's standards on safety
requirements. We're the leader in the industry.
Our people should not feel afraid. They have an 1-800 line
that they can call anonymously. We encourage them, through
posters and communication, that, if they have an issue, let us
know. You'll always have, out of 7,000 members, people that
perhaps don't come forward, and should. But, we think we have
as good a safety program, in that regard, as anyone in the
industry.
Senator Byrd. Mr. Blankenship, how many Upper Big Branch
miners requested to be transferred because of safety concerns,
prior to the April 5 explosion?
Mr. Blankenship. Again, I don't know of any statistic that
we have on how many people requested transfer out of Upper Big
Branch. And I don't particularly know that anyone transferred,
or asked for a transfer, for safety reasons. They may have.
Most of our requested transfers relate to being closer to home.
But, I don't know of anyone, personally, that asked for a
transfer for safety reasons. But, there may well have been
some.
Senator Byrd. How would you handle those requests?
Mr. Blankenship. Well, the first thing I would be
interested in, if I had a request that came to my attention,
that someone wanted a transfer for safety reasons, would be
trying to figure out what safety concern they had that would
encourage them or cause them to make such a request. And then,
of course, to try to correct that, as well as accommodating
anyone that feels unsafe in our coal mines.
I would say, to the group, that we had 29 miners perish in
this accident that had a combined 400 and some years of
experience, and they would not put themselves, knowingly, at
risk, in my opinion. Two of them were engineers. Several of
them had worked at this mine for 10 or 14 years, and were very
experienced and very well-qualified longwall miners. And I
don't believe that they would've put themselves at risk,
knowingly.
Senator Byrd. Mr. Roberts, would you care to comment?
Mr. Roberts. The one thing I can say is, I've never met a
Massey miner, or heard of a Massey miner, that withdrew
themselves for cause of safety. I find that, in and of itself,
somewhat ironic.
The one thing that we encourage Congress to consider is to
make it a criminal violation for any supervisor or any
management person who interferes with a person's individual
right to withdraw themself from what position that they feel is
unsafe. That's something that we desperately need, because it's
our opinion that miners are very much concerned. We know that
people there, at this mine, were worried about being killed,
being injured. And I think that the record will reflect that
when this investigation is completed.
Senator Byrd. In Mr. Main's testimony, he--the Assistant
Secretary cites--C-I-T-E-S--recent anonymous complaints that
prompted MSHA inspections at three Massey mines in West
Virginia. Inspectors found illegal practices that required
withdrawal orders to be issued because of inadequate air
movement, with the potential for explosions; blocked escape
ways; insufficient mine examinations by the operator; and roof
fall hazards. Now, what happened to the Massey officials who
allowed these dangerous and illegal practices to exist?
Mr. Blankenship. You know, I think Mr. Main was referring
to some events at one of our mines where people had called in,
about 1 month before the April 5 tragedy. And, in answer to
what happened to them, all nine individuals, who were felt to
be aware of and participating in the improver activity, were
discharged, and as was the one individual that was cited by
MSHA, post the April 5 accident.
I can say only that when you have 7,000 people, as is the
case with a lot of companies, you can't keep track of all of
them. But, we make our very best effort, when we hire people,
to make sure we're hiring people who will produce safely. It
includes drug testing; it includes criminal checks; it includes
everything as simple as being able to read, to being
nonsmokers. So, a big part of our safety program is trying to
make sure we've got well-qualified, well-meaning people who can
behave safely in a coal mine. But, sometimes that doesn't work
out.
But, in answer to your question, all nine of those
individuals were discharged immediately.
Senator Byrd. Why were MSHA inspections necessary to
correct these?
Mr. Blankenship. Again, as is the case with Mr. Main, I and
others can't be at the mine every day. So, there are
violations.
I do think that that incident, which occurred about a month
before the April 5 tragedy, indicates that some people do call
in. This--as I understand it from Mr. Main, and did not know
for sure that that was the case, these people did call in that
they felt unsafe, or that improper practices were being
conducted, which demonstrates that they will call the 1-800
hotline, or be whistleblowers.
And, as I said, we took immediate and decisive action.
Senator Byrd. Mr. Roberts, do you want to comment?
Mr. Roberts. Yes. I think there's a distinction that--to be
drawn here. The question that you asked Mr. Blankenship
previously was how many miners had withdrawn themself. That
means, you say to your foreman, ``I think I'm in a dangerous
position here, and I want a different place to work.'' That's
individual withdrawal rights.
I said I had never heard of a Massey miner exercising that
right. Mr. Blankenship, said he didn't know. That is different
than someone picking up a telephone anonymously--obviously,
they're calling because their name will not be revealed and
reporting a serious situation at their particular mine, at the
Massey Energy Company.
I think there were three different mines that MSHA actually
went into; one or two of those was before Upper Big Branch. And
I think they investigated some mines after Upper Big Branch,
and found serious violations, also.
So, there's a distinction here. It's not the same thing.
When someone calls anonymously, no one knows who they are. When
someone withdraws themselves, everybody knows who they are.
And the question you asked Mr. Blankenship, and asked me,
was, How often is this exercised? I know of no miner ever
exercising that right at Massey, and he has not--he does not
have the information, or he doesn't know of any miner that ever
withdrew themself at Massey.
Senator Harkin. Mr. Blankenship, you say that Massey does
not place profits over safety, never have, never will. That's
what you said in your statement. But, in a memo from you, dated
October 19, 2005, you told your company's deep mine
superintendents that running coal is the top priority in the
mines. Here's the quote, ``If any of you have been asked by
your group presidents, your supervisors, engineers, or anyone
else to do anything other than run coal--i.e., build overcasts,
do construction jobs, or whatever--you need to ignore them and
run coal. This memo is necessary only because we seem not to
understand that the coal pays the bills,'' end quote. Doesn't
sound like putting safety first to me.
Mr. Blankenship. Yeah. I think that that's true if you read
it in the sense that--but, people at Massey know that S1 is--
safety is job one. That memo was the product of a situation
where construction work that wasn't needed for 5 years, to turn
off other sections and so forth, was being done at a time that
it didn't need to be done.
And, in fact, I encourage our coal production people to
produce coal, because, so long as they're working in the job
that they routinely do, they're more likely to be able to do it
safely. When you put people, who work in the face of coal mines
and mining coal, into the business of shooting and taking down
overcasts and doing other work that's not normal to them,
they're more likely to get injured than if they do their normal
work.
That memo was quickly and poorly drafted and sent out. A
few days later, we sent out a corrected memo to make sure no
one misunderstood it. And, as you might imagine, in my 20 years
at Massey, I've probably written and received hundreds of
thousands of memos. But, I'm confident that our safety culture,
S1, and our belief in safety, and so forth, far overshadows any
single letter that was written at a time when were having
people do construction work that was not necessary for a long
period of time, and were idling production to do so.
Senator Harkin. After the deaths of two miners in 2006 at
the Massey controlled Aracoma mine in West Virginia, Aracoma
agreed to plead guilty to a series of criminal violations that
hampered miners trying to evacuate the mine after a fire had
started--after the deaths of those two miners. In the plea
agreement, Aracoma officials agreed with prosecutors that the
company, quote, ``Recklessly failed to replace the stoppings or
to provide additional ventilation controls,'' end quote, to
protect the primary escape tunnel. Again, it just doesn't sound
to me like putting safety first.
Mr. Blankenship. Well, again, we do everything we can to
get all 7,000 of our people to put safety first. And, in that
same plea agreement, everyone agreed--in fact, the plea
agreement makes clear--that Massey Energy, nor any of Massey's
executives or anyone, had any knowledge of the stopping being
left out. I had done everything that I knew I could do, in
advance of that fire, by pointing out that we--you know, we
needed to make sure that everything was safe.
Obviously, a stopping appears to--at least appears--I think
it's fairly certainly it was left out, and it did violate the
escape way. But, certainly, none of that plea agreement says
that Massey executives or myself knew about it; in fact, it
says the opposite; that we clearly did not know about it.
Senator Harkin. Mr. Blankenship, you mentioned the MSHA
awards, the three Sentinels of Safety awards, that MSHA gave
you last fall, if I'm not mistaken. But, I understand that none
of these awards were for an underground coal mine, and your
three recognized sites represent less than 2 percent of Massey
Energy operations. So, I think it is a stretch to say that MSHA
praised your safety record, when Upper Big Branch mine had,
what, 48 withdrawal orders?
Mr. Blankenship. Yes. At about that same time we were
having those citations, slash, violations, as far as it
representing only 2 or 3 percent of our workforce, I don't know
that any single mine represents more than 3 or 3\1/2\ percent
of our workforce. So, those are individual mines, Sentinels of
Safety Awards, and it would never represent a large portion of
the workforce.
Senator Harkin. But, they were for your aboveground mines.
Mr. Blankenship. Yes. They were--I think they were
primarily for preparation plants and maybe also a surface mine.
Senator Harkin. Well, I'm going to ask both of you this
question. Now, we know that there are mines that have great
safety records, very rarely have an accident, and, when they do
have an accident, it's usually because of an individual who
has, maybe, not followed the correct order or direction.
But, why can't we take those mines, that have these
excellent safety records and a culture of safety, and why
doesn't Massey incorporate those into your mines? I mean, you
would think that--if I was in business, in a hazardous business
like coal mining, and I had other mines, maybe that weren't
even--were not in my operation, were not in my company, but
they had excellent safety records, and didn't have any
problems, you'd think I'd want to adopt that.
Mr. Blankenship. Well----
Senator Harkin. And do you ever do that? Do you ever look
what other mines are doing and say, ``They have a great safety
record, maybe that's what we ought to be doing?''
Mr. Blankenship. We're right on target with that. We
volunteered, to the National Mining Association (NMA), that we
would make our S1 Safety is Job One package, which has 120
rules that exceed MSHA's rules, available on the Internet to
everyone in the mining industry. And we did that.
We also use good performing mines as templates to look at
bad performing mines. Upper Big Branch had, like, a 5.8 NFDL
rate in 2009. And this focus we put on it, as a result of our
measurement and understanding of processes at the upper Massey
level, brought that accident rate to zero in the first quarter
of 2010, before this tragedy. So, we do use best practices. In
fact, our S1 program is the accumulation of best practices that
we've learned at well performing mines.
Senator Harkin. Mr. Blankenship, I've been around long
enough to know that you can have all kinds of fine things on
paper, but unless they're actually executed on a daily basis,
they don't mean much. You can have all kinds of fancy things on
paper, but you said something earlier, to a question that
Senator Byrd asked, and I wrote this down. ``We can't be at the
mine daily.'' Neither MSHA or you can't be at the mine daily.
I understand that. MSHA can't have an inspector in every
shaft, in every mine, every minute of the day. You can't be
there, either. That's why you have to have safety things set up
that are self-perpetuating. You also need to have a system
whereby, if a miner sees a violation, that miner, with all the
protections that they have, can blow the whistle.
Mr. Blankenship. And I couldn't agree more. In fact----
Senator Harkin. Well--do you have a setup for a miner who
sees a violation, that has complete anonymity, that they can
report that violation without any fear of retribution
whatsoever?
Mr. Blankenship. Yes, we have an 1-800 number that they can
call in anonymously. We tell our people----
Senator Harkin. And where do they go to a phone to call
that 1-800 number?
Mr. Blankenship [continuing]. They can call it from
anywhere. I mean, they can call it from their home, they can
call it----
Senator Harkin. Yeah. And then you can trace that and find
out where that call came from.
Mr. Blankenship. Well, I mean, I don't know that we can
trace it. I don't know what we've got on there. But, the main
thing is that our people are told, constantly, that they should
never work unsafe. They sign a piece of paper, when they come
to work for us, that they will neither work unsafe, nor
participate in safety violations. I think we're doing pretty
well, in that regard, by evidence of reducing from 8.0 to 0.79
NFDL rates.
We have tragedy on our hands, but we don't know why it
happened. I believe there are things that the industry and MSHA
need to do to greatly reduce the chance that would happen
again. But, the idea that Massey or Massey's management or the
great majority of Massey--you know, there's always somebody out
there that does not care about safety is--untrue.
Senator Harkin. Mr. Roberts?
Mr. Roberts. I'd just like to point out a couple of things,
if I might.
One is that, not only have we experienced these 52
fatalities, this horrendous situation at Upper Big Branch, this
is the second disaster in 4 years at a Massey operation. And,
quite frankly, I don't think too many companies are out there
looking to copy what's going on at Massey and implementing that
at their operations.
The awards that Don talked about in his testimony, the
Sentinel of Safety, it's true that MSHA awards that, but I
think that's awarded jointly with the NMA, if I'm not mistaken.
I want to speak to something that we've become aware of.
And we raised this with Mr. Blankenship at his shareholders
meeting, earlier this week. We have witnesses and people who
work at Massey who tell us that, when you get when you get
injured at Massey, or when you get to the emergency room,
someone from human resources meets you there.
And we've got one young man who had his finger cut off, and
the person from human resources said to this young man, who,
incidentally, worked at Upper Big Branch, ``You don't have to
take time off here. You can come back to work, and we'll give
you light duty. And that way we don't report this.''
We also have evidence that they have at least one
individual, that we know of, that has three broken bones in his
back, and he's working at Massey. So, that's not a lost time
accident at Massey.
So, I think their statistics are borderline fraudulent
here, when you're paying people who are hurt, and would be off
any other coal mine in this Nation, and taking time off from
work and getting workers comp or S&A benefits, and you're
paying those people to come to work and say, ``Look what I've
done.''
And I think there's another important thing here, I--that
is troublesome to us, is--in Mr. Blankenship's package that he
has with the company, he gets a bonus for reducing lost time
accidents. So, we take company money and we pay someone who's
injured to come to work, and then Don gets a bonus because he
reduced lost time accidents, then he gets an award from MSHA
for this.
Mr. Blankenship. Can I address that a little bit?
Senator Harkin. Mr. Blankenship, you should have a chance
to respond to that.
Mr. Blankenship. Yeah. Contrary to what Cecil says, people
in the industry copy us all the time. In fact, I'm interested,
sometimes, in seeing, on television, how widely spread the
straps are. The reflect-- or, the flappers on roof boulders
that protect the roof boulder more than he would otherwise be
protected, are Massey inventions that are everywhere. Red zones
around highwall miners are everywhere. We've led the charge on
proximity devices that we think will be everywhere.
Many of the 120 rules that we've put in place--one of the
most important being submarine kits that allow a dozer that
falls down in a coal pile and gets covered up to be able to
have lights and communication and breathing apparatuses--is a
Massey invention that we know has saved lives, that's been
adopted, not only by many other coal companies, but, in fact,
by the Government itself.
So, we've done many, many things that have been followed-up
on by others. It's very common for companies to have light duty
work. A guy that's going to get 60 percent of his pay to stay
home, who has the tip of his finger cutoff, may choose that he
wants to work as a dispatcher or something that he can
productively do, rather than stay home. We don't require that.
We can't require that. The law prohibits requiring that. But,
in fact, we make that opportunity available to people who would
want to choose to do that.
I suspect and believe that many companies do that. I don't
think it's a bad practice, so long as the guy can fully perform
the job that's available for him.
Senator Harkin. Is your mine organized? Is it represented
by a labor union?
Mr. Blankenship. We have very few union represented
employees. We have probably 100, 120. This particular mine, at
Upper Big Branch, was a former Peabody Union coal mine, that
twice voted not to be represented by the mine workers. Many of
the people there were still--you know, were former UMWA
workers, but they weren't-- had not chosen to be members of the
union at this time.
Senator Harkin. I guess the one thing that just keeps
nagging at me--I hear what you say about safety and all the
things you're telling me, and I don't have an intimate
knowledge of that, obviously; but then, when I wrote down here,
52 miners died at Massey mines, 23 before the explosion, 29 in
the explosion, 52 over 10 years, highest in the industry--I'm
trying to square these two things.
Mr. Blankenship. Well, the only thing that I can say is
that, once you add the 29 in, it's a bad record. I feel
terrible about it. I don't know, yet, what happened. When you
look at the 23 we had, look at the difficult conditions--
underground conditions, and so forth--that we work in central
Appalachia, we're about average, if you look at the number of
fatals. We're a big producer, so absolute numbers, when you're
producing 40 million tons a year, tend to get big, even with
your best efforts.
But, any fatality is unacceptable to us. There's not been a
single fatality that we've not tried to make an improvement.
We've had highwalls and surface mines fall on people; we've set
up red zones with cones to prevent it. We've had people that
were killed by a--you know, a piece of metal flap flipping up
as they were running a car, and it would stab them; we've put
doors on there to keep that from happening. We've had people
that were--we've had several, as the industry has, fatalities
where a miner operator is positioned in the--on the right side
of the miner, and we've put up, without being required by law,
$2 million a year worth of larger roof bolt plates, called
``pizza pans,'' and we're the only people that I know that do
that routinely to protect that miner.
Cecil frequently calls that ``writing law or a policy in a
coal miner's blood.'' We don't believe in that. But, we do
believe in learning from accidents, and trying to do better.
And that's what we intend to do at Upper Big Branch. And, as
this investigation proceeds, that's my biggest objective.
Senator Harkin. I'll have one last question, after I yield
to Senator Byrd, and it's going to involve your comment about
this open investigation by MSHA. So, I will return to that
after I recognize Senator Byrd.
Mr. Blankenship. Thank you.
Senator Byrd. Mr. Blankenship, why, why, why so many
fatalities at Massey mines?
Mr. Blankenship. As I was alluding to earlier, we are
probably about average, 23 at Massey, with, you know--I don't
know the exact number, but call it 400 million tons during that
period of time, would be the equivalent of, say, 50 across the
industry, which is probably not far off the average. But, the
issue, of course, is that mining in central Appalachia, mining
in deep mines, mining in areas that we mine in, it's a real
challenge. We meet that challenge as best as we're humanly
capable of doing, and will continue to do so. We have 120 rules
in place that exceed the law. We have invented, for another
example, the ability to retrieve equipment from out from under
a supportive roof, like a remote control miner, by being able
to reactivate the tram remotely, which is another Massey
invention.
I could carry on here for hours about Massey inventions,
trying to deal with the hazards of coal mining, believing that
we have to engineer the risks out. And we have to work together
with the Government and the company to find more opportunities
to engineer the risks out of mining.
Senator Byrd. Mr. Blankenship, Massey is not average.
Massey is not average.
Cecil, would you like to comment?
Mr. Roberts. I've heard Don use this ``. . . 23 fatalities
in 10 years . . .'' this is before Upper Big Branch-- as
``about the industry average.'' And, for the life of me, I
can't come up with another coal company that's had 23 miners in
10 years die. And then he takes the amount of production and
says that's how he gets to that.
I think we have to look at the number of people who have
been killed at a particular company, as opposed to saying,
``Well, I mine x amount of tons, and I figured out some way to
make that the average.'' That's not the average. That's
unusual, it's unacceptable, and I wish Don would come to that
conclusion, that we have to do better than this, and he has to
do better than this.
And then to have this terrible explosion take place at
Upper Big Branch, on top of this--this is the worst fatality
rate in the industry, either way you look at it. Either before
the explosion or after the explosion, it's the worst. And I've
just--have trouble with his calculations, here, that somehow
this is the average. This isn't the average. This is
deplorable, is what it is. It's not average, and it's not
acceptable.
Senator Byrd. Mr. Blankenship, I helped to write the laws,
in 1969, 1977, and 2006, so I've been around awhile. Let me say
it again. I helped to write the laws, in 1969, 1977, and 2006,
to improve safety in our coal mines. The responsibility to
comply with those laws is yours, Mr. Blankenship.
How do you reconcile your assertion that safety is number
one at Massey with the fact that your mine has had 48
withdrawal orders, too many violations, and 52 deaths?
Mr. Blankenship. I can tell you it's not an assertion. We
work very hard to make safety job one at Massey. The violations
that occurred in, essentially, the first half of 2009, when
they came to the management's attention, we put two safety
specialists at the mine. We formed a five person hazard
elimination group, which also has two MSHA people, former MSHA
people involved in it. We've met with MSHA to go over how we
might proceed, in terms of all Massey hazards across the
company. We worked very hard to deal with the violations at
that coal mine, as we do at the other coal mines.
We've spent tens of millions of dollars beyond the laws
that you passed. I'm very appreciative of the laws that you
have passed. I know these coal miners. I still interact with
them. I'm probably the only major company CEO that still lives
in the heart of them. I live at Sprigg, in Mingo County, West
Virginia. I play basketball with them. I know their families. I
looked them in the eye, on the night that we had to give them
the bad news. I don't want to do it again. There's nothing that
I can be accused of or nothing you can do to me that will make
me want more than the feeling of having to inform family
members of such a tragedy, to want to avoid it again.
And I can assure you, despite what you read in the media
many times, that Massey is very serious about dealing with
safety violations and improving safety.
Senator Byrd. Senator Harkin, thank you.
Senator Harkin. Thank you, Senator Byrd.
Senator Byrd. You have something else?
Senator Harkin. Yes, I just have one more.
You talk about the mine--that MSHA said the mine was in,
quote, ``good condition.'' But, Mr. Main said that there is no
such designation.
Mr. Blankenship. Yeah, I was, oh, you're looking--I was
stricken by the word ``certified.'' I would agree with Mr.
Main, that they probably don't have a quote, ``certification''
of a good mine. But, it is reported to me, and I think people
will testify that, on the closeout inspection, that MSHA
thought that the mine had this--inspectors onsite and the
management onsite agreed that the mine had been ``fixed,'' if
you will, that the problems had been addressed, and they were
appreciative of all the focus and effort that we had put into
it.
I had met with Mr. Main, I believe, in February 2010, just
a couple of months before the accident, and asked the question
of, ``What--is there anything we need to focus on, any big
problem that you want us to deal with?'' I think that we all
thought that we had moved this mine forward. I don't know, yet,
because I don't know what happened, whether the violations, and
the nature of violations, and so forth, contributed. So, we're
anxious to find out.
Senator Harkin. Now, one more time, Mr. Main also said that
MSHA does not provide for plans for ventilation. They don't do
that. Yet, you seemed to indicate, in your testimony, that MSHA
provided some kind of plans for changing the ventilation
system. So, then I want to get this straight. Did they provide
you--did MSHA provide you with a planned ventilation system?
Mr. Blankenship. I think that most people in the industry
would agree that MSHA only approves the plan they want. An easy
way of example for you, one of the things that Congress has
allowed is scrubbers on continuous miners, which we all agree
and as far as I know, no one disagrees with--the filters in--on
continuous miners are an important part of holding down
breathable dust. Yet, MSHA will not approve the use of 63 of
our continuous miner scrubbers. So, therefore, we're not
running them. That's not our plan, that's not our wish. We
fully disagree with it. We've talked to them about it for a
long time. We went public with the fact that they won't let us
run the scrubbers. I offer that as evidence that they won't
approve our ventilation plans. They force us to ventilate
backward by not approving the plans. We prefer to ventilate on
blowing air systems, they prefer that we ventilate on the
exhausting air systems. The mines are not ventilated, nor are
the scrubbers run, because MSHA won't allow it.
Senator Harkin. Now you're in an area I don't know anything
about, obviously.
Mr. Blankenship. Yes, I understand.
Senator Harkin. I don't understand all----
Mr. Blankenship. And I apologize for that, but I----
Senator Harkin. That's okay. All I'm saying is, What do
other mines do? I mean, you're not a loner. We've got a lot of
coal mines out there.
Mr. Roberts, are you familiar with ventilation systems?
Mr. Roberts. Somewhat. I'd let me try to pick up on where I
think Don was going, here. But, there're two different issues.
The scrubbers--those scrubbers are placed on continuous
miners to remove the dust from the atmosphere. That's a health
issue. That is so miners will not breathe excessive amounts of
dust, and helps control the dust. Okay? It's not necessarily a
safety issue that might that would lead to an explosion. That's
two different things. The scrubbers, I would say, are for
health purposes.
Now, with respect to ventilation, every operator in the
United States that has a coal mine, or wants to open a coal
mine, has to submit a plan to ventilate that mine, to MSHA.
MSHA either approves that plan or disapproves that plan.
I don't know what Mr. Blankenship means when he says,
``MSHA made us change our ventilation plan.'' And I'm still
unclear about that. Those plans are the responsibility of the
operators, and they're either approved or disapproved.
Now, with respect--we shouldn't complicate this with the
dust controls. That may very well be a legitimate debate, with
respect to controlling the breathable dust. That's separate,
distinct from ventilating the mine to keep float coal dust
away, and also keeping methane out of the face. So, when he
says, ``They made us change the ventilation plan,'' I'm still
unclear exactly what he means now, and it's a little bit
unclear of what he meant the other day. But, that's what-- the
way the process works. He submits a plan--not necessarily him,
but his engineers. And maybe MSHA disapproved of a particular
plan they submitted, but MSHA doesn't come up with the plan.
Mr. Blankenship. You know, I----
Senator Harkin. Well, again----
Mr. Blankenship.
Mr. Blankenship. I consider that a play on words.
First of all, the scrubbers can be a safety issue, because
they will suck the methane out of the face, as well. But, I'm
not pointing out the scrubbers as equivalent to the ventilation
change. But, because it's a much simpler issue, and one that
makes it clear that we don't decide what we can do, because we
would run the scrubbers. We have, for my working lifetime at
Massey, and they won't let us run them. So----
Senator Harkin. I just don't understand that. But, there
are other I keep coming back to this point--there are other
mines----
Mr. Blankenship. There are----
Senator Harkin [continuing]. Just as deep as yours, just as
big as yours, and they run ventilation systems, and I've never
heard any problems about this.
Mr. Blankenship. Well, you----
Senator Harkin. So----
Mr. Blankenship [continuing]. You could hear of problems if
we don't allow the top industry people to have a major--a more
major role in ventilating the coal mines. One of the big issues
is whether you have EP points, or you don't. And I don't want
to--I know that I could get too technical.
But, the bottom line is that we're--when we submit the plan
that we think is best for the ventilation of a room-and-pillar
mine or a longwall, they deny it until we submit what they
would like for us to have. And many times, it is not the plan
that we prefer to have.
Senator Harkin. I'll follow up on that with questions for
you, but also with with-- MSHA also, on that.
Mr. Blankenship. Thank you.
Senator Harkin. I will send written questions, to get that
fleshed out a little bit more.
My last question, basically, is this; and that is, you
talked about MSHA, you sort of alluded to the fact that they're
investigating themselves, here, as pertains to this ventilation
system. You mention that, and you say you don't know whether
that played a role in the explosion--none of us know that yet--
you don't know. But, you allude to the fact that MSHA cannot be
trusted to do this investigation, because they are kind of
investigating themselves. Would you like to elaborate more on
that? And, I'm going to ask Mr. Roberts, also. Are you saying
that there should be a separate entity, other than MSHA, to do
this investigation? And is there one that is qualified, in
terms of mining safety, to do this kind of investigation?
Mr. Blankenship. I think the qualifications would be very
difficult, and I don't know that I have a particular entity in
mind. But, you have situations, for example, where the NIOSH
branch, that was represented up here today, seems not to agree
with MSHA, for example, on the scrubs. But MSHA has that rule
in place. I think that we need--as we are doing at Massey, by
the way--go through the entire process of how our safety is set
up, whether there's any, you know, validity at all to these
accusations that people are afraid to call, whether there's any
validity at all that we are understaffed. We're going through
that entire independent review of our safety--our board is--as
a way to make sure that we're right. We believe we're totally
right, in terms of how we're structured and how we manage our
safety department. I think MSHA needs to do that same thing.
And I think companies that have a disagreement with MSHA about
ventilation and scrubs, and so forth, need an appeal mechanism,
where they can go and say, ``Look, this is what we want to do
and this is what they want to do. Give us a chance to do it the
way we think is best.'' So, I think there's room for that.
And I don't know, in answer to your question, who exactly
would be qualified to oversee this investigation. But,
certainly we think it's in the best interest of the coal miner,
the ones that I live among, to get a true, independent
assessment of what happened here.
Senator Harkin. Mr. Roberts, do you have any thoughts?
Mr. Roberts. We--actually, I knew if we stood here--stayed
here long enough, there might be something we would somewhat
agree with. We--the UMWA asked MSHA and the DOL to conduct this
hearing publicly. And the reason we felt that was so important
was, number one, MSHA does not have subpoena powers in these
closed hearings. So, what that means is, if they ask Don to
testify, or they ask me to testify, I can either come or I can
say, ``No, I don't want to.'' In a public hearing, the law
gives MSHA the power to subpoena me, or subpoena Don, or
anybody else they want to.
In these private hearings, the miners' representative
which, by the way, we are the miners' representative at Upper
Big Branch, because the law is different for investigations and
safety representatives than it is for representing people in
collective bargaining--we have been asked, by miners at Upper
Big Branch, to represent them in this investigation. In this
investigation, we will not be allowed the union will not be
allowed--to be in the room when witnesses are being
interviewed. And we think that's not a good thing. We don't
think it's a good thing for anyone. The families are not
allowed to be in the room when these witnesses are being
interviewed. If we have a public hearing, the families can be
there, the miners' representative can be there, and anyone who
would like to be could be there.
Now, we've been told that the reason that they have decided
to close these hearings is because of the Department of
Justice's investigation. They have FBI agents--a lot of FBI
agents in southern West Virginia, and I applaud that. But, I
don't really see how having a public hearing, where whatever
Massey Energy did, or whatever MSHA did, or whatever the State
government did, could be considered, and we could learn from
that, and we could learn immediately.
The problem we've got here is none of us are going to see
this evidence for a year. None of us are going to see what the
witnesses said. But, I do want to step up, right now, and say I
have full confidence in the Secretary of Labor, Hilda Solis. I
think she was a fine appointment. And Joe Main worked for us
for 30 years. And I said, in another hearing, that, before this
is all over, people will be coming in here and saying, ``Joe
Main is too tough on us.'' And I know that will happen, because
he's aggressive, he has dedicated his entire life to protecting
coal miners. And he will do that here. He will probably run the
most thorough investigation we've ever seen. But I do think
it's wrong to have this hearing in private, and all of us try
to figure out traipse behind to figure out what happened. And,
you know, I've got strong feelings about--and I've expressed
them here today--but, I do think everyone's got a right to
defend themselves. And I wouldn't deny that right to anyone.
But, we're not doing that here, we're in a situation where this
is going to be an investigation, and we're going to be part of
it. We're going to go in the mine, when it opens, our people
will, and we'll see what happened, with respect to where the
explosion traveled, how much damage it did. We'll all try to
come to an opinion with respect to that.
But, trying to do that in isolation of knowing what the
witnesses said, at the time this mine--right before it exploded
there were miners who, I know personally, had to run out of
this mine, and barely got out. We talked about the Davis family
losing three family members. Tommy Davis, Cory Davis' dad he
was in that mine and was running out and it blew him down. So,
that family could have been hit with four family members, here,
and perhaps five. There's a fifth young man in there that was
the son of Timmy Davis. So, this could have been even worse
than it was.
But, we don't know--we've talked to people. Look, we talked
to about 90 people here. But, we haven't--we're not going to be
privy to these witnesses getting up on the stand. And MSHA--
they're not going to be subpoenaed. They don't have to come,
and they don't have to talk. And I think that we need these
people to be sworn in and everyone tell what they know, so we
can get to the bottom of this and everybody know what happened
here so there won't be any doubts about what anyone did here.
Senator Harkin. Thank you very much.
I know Senator Byrd had one last question.
Senator Byrd. Thank you, Mr. Chairman.
Mr. Blankenship, according to the news media, a major
source of the gas buildup at the Upper Big Branch mine, may
have come from a coal shaft that had never been properly
sealed. According to one article, quote, ``Rags and garbage
were used to create a poor man's sealant''--S-E-A-L-A-N-T
``which allowed methane to permeate the mine, displacing much
needed oxygen.''
Mr. Blankenship. I've seen that same report, followed up on
it. As best I can figure out, it's not the case of the hole, or
the shaft, you're speaking of was a hole that was for the
purpose of transporting coal from a mine above it that was no
longer in use. And it was filled with coal and rock, and
inspected by MSHA. And, as I understand, it was fine. There
were, to my understanding at this point and I want to be
careful not to rule out any source of the methane this early--
it's my understanding that it's highly unlikely that that hole,
which was sealed with coal and rock, would have played any role
in this explosion.
Senator Byrd. What other irregular ventilation is allowed
at Massey mines?
Mr. Blankenship. Well, I don't know of any irregular
regulation. We ventilate our mines as best we know how, to the
extent that MSHA will allow us to ventilate that way. And then
we do our best to, in concert with MSHA, come up with safe and
healthy ventilation plans.
Our mines, as you know, Senator, in central Appalachia, are
different than they are in Pennsylvania. We have a lot of--a
lot more overmining and undermining, and we have to be worried
about positive and negative pressures of the air, drawing bad
air out of other mines. And we prefer, as I said earlier,
blowing ventilation on our miner sections. And we certainly
prefer running our scrubbers. And we believe that there are
many things that can be done to improve, or lessen, I should
say, the likelihood of this type of thing happening again. And,
in many cases, there are things that we can't do. We need to do
a better job regulating gas wells in these regions. We need to
do a better job of mapping, which was one of the events at Q
Creek. There're a lot of things that need to be done that can
only be done, if you will, by the Government or the regulatory
agencies.
But, as far as that hole, in particular, I don't think that
it contributed to the explosion. But, that'll be part of the
investigation.
Senator Byrd. Mr. Blankenship, what recordkeeping system
exists to corroborate your testimony?
Mr. Blankenship. I don't know which piece of my testimony
you're referring to, but let me say that when I saw the rate of
violations that were occurring in 2008, post the new MINER Act
and so forth, we enacted an effort to really well measure what
our violations were. And we had a very difficult time, using
the combination of our data internally and the MSHA Web site,
figuring out what our violation count was. It took us a good
time--a good amount of time to figure that out so we could
apply the resources in the right place to reduce violations.
And we did that.
But the records on NFDL rates, the records on the what
we've done on safety innovation and the 120 rules--and so
forth--are all there for reviewing, if and when that is, you
know, appropriate.
Senator Byrd. Mr. Chairman, I want to thank Mr. Roberts and
Mr. Blankenship for their testimony.
Mr. Blankenship. Thank you, Senator.
Mr. Roberts. Thank you.
Senator Harkin. I join you, also, in thanking you both for
being here.
And, you know, we all know that mining is a dangerous
occupation. Anytime you go below the ground and you're dealing
with explosives, you're dealing with all of the things that
face miners, it is a hazardous occupation. But, that's why,
over the years, we've tried to do everything we can to put
policies in place to lessen that, to make it so that--like Mr.
Roberts said, so that people don't write letters saying,
``Well, I hope I see you tonight.''
Perhaps you can't get 100 percent assurance, but you can
get 99 percent. And we've got to do everything we can to make
sure that miners are protected from these kinds of tragedies.
So, we'll look at what we need to do at MSHA, what we need
to do legislatively, here to address this. We are, of course,
like you, anxious to see the outcome of the investigation.
I am going to talk to the SOL about what both of you said
in open proceedings and the issuing of subpoenas in open, which
you can't do in private. I will talk to the SOL about that and
try to get that input, also.
But, I just well--I feel like Senator Byrd, we just can't
keep coming back here all the time, and having something happen
to miners. We just can't keep doing this. I mean, I've only
been here 25 years. And it just seems like, about every 5
years, we've got something--we've got to come back here, miners
have died. They've died in tragic accidents. And we say,
``Well, we're going to fix it.'' And then something like this
happens, the worst one in 40 years. With all of the modern
technology we have, with all of the knowledge we've accumulated
over the years as to safety precautions that need to be taken,
with all that, 29 miners lose their life.
I just don't want--we just don't want to keep coming back
to this. We have to get in place, for miners, safety measures
that they can rely on. And that's really the basis of what
we're trying to do here.
So, I appreciate your testimony. But, this subcommittee
will not rest until we change some of these processes and
procedures, and look at what we need to do to make sure that
this accident, this kind of tragedy, doesn't happen again.
I don't doubt, for a minute, Mr. Blankenship--I don't
doubt, for one minute, that you feel badly about what happened,
that you don't care about your people. Of course you do. And so
does Mr. Roberts. I've known Cecil for many years. I know how
deeply he cares about the people he represents, the UMWA.
ADDITIONAL COMMITTEE QUESTIONS
Sometimes, caring is not enough. I know you care. I don't
doubt that for a minute. But, it's looking at the policies and
procedures that-- what is implemented. It's a culture of
safety, and when you have hazardous conditions like that, of
making sure that everyone understands that safety must come
first. It must come first. Not how much coal you've produced. I
understand you've got to make money. And I understand we need
the coal for energy. We all know that. But, in this kind of a
thing, safety has to be the first thing that comes first.
And, like I said, I know you care, I know Cecil cares, and
we all do. But, we've got to change something here to make sure
it doesn't happen again.
Thank you both for being here.
Mr. Roberts. Thank you.
Mr. Blankenship. Thank you.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted to Hon. Joseph A. Main
Questions Submitted by Senator Tom Harkin
Question. Mr. Main, I applaud the blitz inspections that you
ordered last month. As you've said, inspectors can't be in all parts of
every mine, every day, on every shift, so the Mine Safety and Health
Administration (MSHA) must be smart about how it implements its
inspection activities. How many additional ``blitz inspections'' will
you conduct under your current budget and the 2011 budget request?
Answer. From April 19-23, 2010, MSHA conducted impact inspections
(``blitz inspections'') at 57 targeted underground coal mines whose
history of underground conditions indicated a significant number of
violations related to methane accumulations, ventilation practices,
rock dust applications, and inadequate mine examinations. Unlike the
statutory inspections that are conducted of the mine in its entirety,
MSHA focused on conditions associated with an explosion, i.e., methane,
mine ventilation, and rock dusting, and captured the phones to prevent
advance notification of MSHA enforcement presence at the mine. MSHA
issued 1.454 citations, closure orders and safeguards to those 57 coal
mines. MSHA also conducted impact inspections at other coal mines and
expanded impact inspections to include metal and nonmetal mines with
violation histories indicating hazardous conditions where injury or
death could result from ground control, fire protection, safe access,
or explosives storage. During the period of May 3 through 6, MSHA
issued 534 citations and orders to 15 metal and nonmetal mines.
MSHA intends to conduct additional blitz inspections during the
remainder of this fiscal year and in fiscal year 2011 on an as-needed
basis.
In addition to focusing on mines with violations that indicate a
history of particular conditions, future blitz inspections will also be
conducted in tandem with MSHA's pattern of violations program. MSHA is
currently working on reforms to the administrative guidance on the
pattern of violations screening criteria to better reflect the intent
of the act. These changes can be implemented prior to the completion of
current rulemaking and any possible legislative reforms. I have
directed MSHA staff to evaluate how we can enhance the pattern of
violations program with use of blitz inspections to broaden the net on
problem mines and noncompliant operators.
We are currently in the formative stages of planning and have not
yet determined the scope of these inspections, the specific number we
plan to conduct, the resources necessary to support these efforts, and
how to utilize blitz inspections within our budget request for 2011
while continuing to ensure that we complete all regular mine
inspections.
Question. Mr. Main, I have been working with the Department of
Labor (DOL) on the issue of worker injury under-reporting in the
context of the Occupational Safety and Health Administration. As a
result, DOL is now doing additional work to better understand research
that points to a potential undercount of worker injuries as reported by
employers. Can you shed some light on this issue in the mining industry
and actions MSHA is taking or considering to ensure that injury counts
obtained by operators are reliable and fully representative of the
incidence of injuries in the industry?
Answer. MSHA requires mine operators and mining contractors to
report all injuries and occupational illnesses which result in death,
days away from work, or days of restricted work activity. MSHA
inspectors periodically conduct audits to ensure that the information
submitted to MSHA is complete and accurate. These audits include a
review of mine tiles; interviews with management, miners, and
representatives of miners; and a comparison of reported injuries with
workers compensation records when they are available.
MSHA recognizes that some mine operators under-report injuries and
occupational illnesses. What we don't know is the extent of under-
reporting. One of the challenges to fully understanding the problem and
identifying under-reporting is that our audit program is conducted by
inspectors, and an increase in our audits would redirect resources from
the other critical work of regular mine inspections. We have particular
concerns about the completeness and accuracy of reporting by mining
contractors. Under current regulations, contractors do not report on a
mine-by-mine basis, making the data they provide less useful and less
amenable to a meaningful audit. Contractors perform considerable work
in the mining industry and information on man-hours worked is necessary
to determine the rate of injuries, illnesses, and deaths by
contractors.
However, we are not waiting for legislation to attack this problem.
To better understand the scope of the problem of under-reporting. DOL
is launching a study of injury and illness reporting by the mining
industry, which will lead to a better understanding of the problem, and
ultimately to better injury and illness data. The study is being funded
through the Departmental Management Evaluation Fund.
MSHA will use the findings of this study to ascertain the degree to
which operators and contractors currently report injuries and illnesses
and determine the need for additional training, audits, and
enforcement. Improving reporting of injuries will have a direct,
positive impact on worker safety. In the interim, MSHA will continue to
conduct part 50 audits and take enforcement actions whenever
appropriate.
Question. Would you please provide more details on the better
operational and emergency response needs that you have identified for
additional investments? Please explain the specific needs and
associated costs.
Answer. MSHA has performed a detailed assessment of the gaps in
mine emergency response, including the response of mine operators and
Federal and State governments. Several critical areas need to be
improved to increase the probability of successfully rescuing miners
during a mine emergency. MSHA provides specialized mine emergency
response equipment and mine rescue teams to assist in mine emergencies.
The equipment that MSHA provides includes an Incident Command Vehicle,
Mobile Gas Chromatography Laboratory, Miner Location System,
Communication Vehicle, Mine Rescue Robots, etc. Investments in
technology and equipment will improve our capabilities and allow us to
locate equipment in geographically diverse areas, significantly
improving response time. Since actions in the first few hours of a
rescue can dramatically improve the chance of a successful outcome, we
arc proposing to establish equipped trailers with basic first-response
equipment in each of our 11 coal district offices and to establish
caches of additional supplies in 2 field locations. We are also
proposing to establish capabilities to analyze mine gases in 4
geographically dispersed locations. The total cost of this equipment is
estimated at $700,000.
In order to improve coverage, we are also proposing to add one
equipped mobile gas laboratory and mobile engineering office in Denver,
Colorado or Price, Utah. Currently, this equipment must be transported
from the eastern stations. This would dramatically improve the response
time to many mines in the Western United States. The total cost is
estimated at $700,000.
Continuous, secure, and rapid voice and data communications is
critical from initial deployment to a mine emergency until the
operation concludes. Communication between responders, rescue teams,
and district and headquarters offices need to be constantly maintained,
so that the best available expertise can be applied as rapidly as
possible, and decisions are made considering all available data. Many
mining operations are in remote areas where cellular phone coverage is
not available, and radio communication is challenging due to extreme
topographic conditions. Further, communication must be secure to
prevent the dissemination of misinformation to the families of trapped
miners and the public at large. We are proposing fully equipped
communication vehicles for the eastern and Western United States, with
secure communications, including phones, radios, networking
capabilities, teleconferencing, etc. The total cost is estimated at
$1,075,000.
We are also proposing maintenance and upgrades to our existing Mine
Emergency Operations fleet. This includes the Command Vehicle,
Engineering Trailer, an electrical generator power supply vehicle, a
trailer for mine rescue robot storage and transport, replacement of
obsolete mine emergency operations computers, etc. The total cost is
estimated at $705,000.
I held a national mine emergency response conference with the
mining industry on May 11, 2010 to address gaps in Government,
industry, and mine rescue team response. Since it takes hours to
transport MSHA mine emergency equipment when an emergency strikes, the
need for the mining industry to quickly provide additional mine
emergency resources to fill the gaps was addressed at the conference.
Question. Also, please describe how MSHA has utilized its increased
appropriation over the past 3 years for these purposes in terms of
specific upgrades and expenditures.
Answer. MSHA's appropriations increases were used for the
following: In fiscal year 2007, MSHA purchased Self-Contained Self
Rescuers (SCSRs) for $200,000 and two mine emergency trucks for
approximately $560,000. In fiscal year 2008 and early fiscal year 2009,
MSHA expended $485,000 to purchase Mine Emergency Unit equipment,
including SCSRs, Biopacks, multigas detectors, radios, and cap lamps,
for the Pittsburgh, Beckley, and Price rescue stations. The purchase
upgraded outdated equipment and replaced consumables to meet the
critical need to have supplies available wherever the MSHA coal mine
rescue team may suddenly be asked to deploy. In fiscal year 2009 MSHA
purchased seismic equipment including: a truck designed to carry
seismic equipment, system recorder, software, and a computer for use
during mine emergency response. MSHA let a contract to re-write the
system software so that it would he usable with new operating systems.
Cost for upgrades in fiscal year 2009 totaled $302,000.
Question. For each of the past 5 years (including the current year
to-date,) how much funding has been allocated from DOL using the
authority provided in MSHA's appropriation to spend funds on the costs
of mine rescue and survival operations in the event of a major
disaster?
Answer. MSHA has not received any funding from DOL under the cited
authority in the last 5 years.
Reviewers note: MSHA's appropriation language states ``. . . and
any funds available to the Department of Labor may be used with the
approval of the Secretary, to provide for the costs of mine rescue and
survival operations in the event of a major disaster.''
Question. How has MSHA utilized the authority provided in the
appropriations bill to promote health and safety education and training
in the mining community through cooperative programs with States,
industry, and safety associations?
Answer. MSHA promotes health and safety education through a variety
of cooperative programs. The MSHA State Grants Program provides funds
to assist States in mine safety-related activities as provided in
section 503 of the Mine Act. In fiscal years 2008, 2009, and 2010,
MSHA's annual award to States in the program was $8,441,000. The State
grant provides health and safety training in 49 States and the Navajo
nation. Annually, the grantees provide training to approximately
225,000 miners. This training includes new miner and annual refresher
training as well as specialty topics including mine rescue training.
The Brookwood-Sago Mine Safety grant provides funds for targeted
educational and training programs and materials exclusively developed
for mine emergency preparedness. Since fiscal year 2007, $500,000
annually has been made available for these grants.
MSHA assists the Joseph A. Holmes Safety Association, a nonprofit
association created in 1916, to promote health and safety in the mining
industry, by providing technical assistance in coordinating efforts
through grass roots safety and health programs and activities to the
mining community. The organization is comprised of representatives from
mine management and labor, State and Federal Government, academia, and
vendors. This program recognizes exemplary safety records both
corporately and individually and presents nationally recognized awards.
Question. How much funding would be used under the 2010
appropriation and 2011 request for this purpose?
Answer. MSHA's State Grant Program will provide $8,441,000 in
grants to the States in fiscal year 2010. The fiscal year 2011 request
continues this amount for State grants. In addition, MSHA will provide
$500,000 in Brookwood-Sago grants in fiscal year 2010, and is
requesting the same amount for fiscal year 2011.
Question. How will these activities specifically help miners report
safety and health problems without fear of reprisal?
Answer. A major issue for MSHA is to ensure all miners are aware of
their rights afforded to them under the Mine Act and have the
opportunity to exercise those rights without fear of reprisal. Upon my
confirmation, I began a review of miners' rights protection programs
carried out by MSHA to improve those. Our activities in this area have
included improving inspectors' response to health and safety
complaints, speeding up investigation and action on discrimination
complaints filed by miners, and providing improved training to miners
on their rights and protections afforded by the Mine Act. Currently,
MSHA is in the process of updating existing Miners' Rights materials
and developing new online content as well as a Miners' Rights DVD.
These materials will be distributed to all grantees for inclusion in
their training. As with previous initiatives, we will ask the grantees
to utilize these materials in support of the Department's new strategic
plan, including the ``Voice in the Workplace'' outcome goal. Since the
grantees provide training for a large number of miners, we are
confident that the Miners' Rights training conducted by the grantees
will provide miners with a better understanding of their rights and
protections. We are also making these materials available to miners and
operators and will be distributing copies to other instructors and
organizations who conduct miner training. We will continue to look at
innovative ways to educate miners on their rights using MSHA-developed
materials, including through our grantees.
Question. Lastly, the 2010 appropriations bill encouraged MSHA to
consider a comprehensive review of safety and health programs. Please
describe the actions taken and planned for this review.
Answer. The agency continues to review health and safety programs.
To date in fiscal year 2010, personnel from MSHA's Educational Field
Services (EFS) made 3.692 visits to mines, facilities, and training
centers. Their main focus is to observe work practices, review, and
evaluate training plans and programs and monitor instructors, making
recommendations for improving miner health and safety. Also, to ensure
MSHA-approved instructors are providing our miners with quality
training, the EFS personnel and contractors hired to specifically
evaluate MSHA-approved instructors have evaluated more than 776
instructors this fiscal year.
Also, this fiscal year the Small Mines Office (SMO), which focuses
on mines with 5 or fewer people, has helped 1,600 small operators
develop and maintain a safety and health program. During each SMO
visit, specialists use a safety and health audit to show the most cited
standards at their type of mining operation. The field specialists
assist mine operators at mine sites to identify conditions that are out
of compliance or those conditions or practices that require maintenance
or management controls to ensure compliance. In addition, they explain
miners' rights to the operators. In the fiscal year 2011 budget, MSHA
plans to redeploy the work of the small mines office to its district
offices to provide better geographic coverage and increased
efficiencies in providing these services to small mines.
To ensure operators are providing effective training MSHA will
continue evaluating instructors and training programs.
Question. MSHA has the authority to retain up to $1,000,000 in fees
collected for the approval and certification of equipment and use the
fees for the same purposes. How much was collected under this authority
last year?
Answer. MSHA collected a total of $1,125,000 in fees during fiscal
year 2009. Of the total, MSHA retained $1,000,000 and used these fees
for mine equipment certification and approval. MSHA returned the
remaining $125,000 to the Treasury.
Question. Could additional fee collection help support more timely
approval and certification of mine equipment, without depressing
interest in research and development in this field? If so, what would
be an appropriate level for 2011?
Answer. An expanded budget authority to retain fees could allow
MSHA to further reduce the current backlog of approval applications and
expedite the process for the approval and certification of equipment
and materials. The additional authority could support infrastructure
improvements and state-of-the-art testing of equipment to more
efficiently conduct approval testing and quality control auditing of
equipment and materials. The subcommittee may consider increasing the
level of retained fee collections to $1,500,000 for fiscal year 2011.
Question. Please indicate the current status of MSHA
recommendations contained in DOL Inspector General reports over the
past 4 years. For any open recommendations, please explain why they are
not yet closed.
Answer. The following is the status of MSHA recommendations
contained in DOL Inspector General reports over the past 4 years.
Report 05-08-003-06-001--Crandall Canyon Mine
(Total 9 recommendations: 6 closed, 3 open)
Rec. Establish explicit criteria and guidance fir assessing the
quality of and potential safety risk associated with, proposed plans.
MSHA has worked closely with the National Institute for
Occupational Safety and Health (NIOSH) in the past to formulate a
pillar recovery risk factor checklist. A study, which has been
completed contains specific recommendations concerning the mining of
barrier pillars, splitting pillars at deep cover, burst assessments,
etc. In conjunction with the study, NIOSH has also revised the Analysis
of Retreat Mining Pillar Stability (ARMPS) software, which will affect
the MSHA evaluation of certain aspects of deep cover pillar plans.
While MSHA has been briefed on certain aspects of the study and the
changes to ARMPS, explicit criteria and guidance for assessing proposed
plans have not been formalized due to the lack of a final NIOSH report.
NIOSH presented a workshop on the new ARMPS software to Roof
Control Division (RCD) personnel and Coal Mine Safety and Health
(CMS&H) Roof Control Supervisors at the MSHA Academy. This allowed both
MSHA enforcement and Technical Support personnel a final opportunity to
comment on the new ARMPS software prior to its release. In our opinion,
it is an improvement over the current version, especially in the area
of deep cover pillar retreat mining. Once the new ARMPS software is
released, the RCD will be in a position to establish/update criteria
for assessing the potential safety risk associated with proposed mining
plans. The projected completion date for the issuance of MSHA guidance
is 60 days after the release of the new ARMPS software and the NIOSH
report to Congress.
Rec. Issue policy and guidance on the use of computer models,
including appropriateness of input values and use of model results.
MSHA has worked closely with West Virginia University (WVU) on
computer model guidance and issued a Program Information Bulletin,
``Precautions for the Use of the Analysis of Retreat Mining Pillar
Stability (ARMPS) Computer Program'' (PIB P08-08). WVU is nearing
completion on their project to develop guidelines for the use of
LAMODEL (LAMODEL is software used for calculating stresses and
displacements in coal mines). The end result of this WVU project will
be the publication of a user's manual and a workbook for LAMODEL. The
projected completion date for MSHA's policy/guidance is 60 days after
the issuance of WVU's user's manual and workbook for LAMODEL.
(Projected completion: July 30, 2010.)
Rec. Establish a Memorandum of Understanding with the Bureau of
Land Management to share inspection or other information on mine
conditions affecting safety.
MSHA did enter into a Memorandum of Understanding (MOU) with the
Bureau of Land Management (BLM) April 8, 2008, to share inspection or
other information on mine conditions affecting safety. As recommended
by the OIG, MSHA has contacted BLM officials to discuss potential
revisions to the MOU. Areas under discussion include extending the MOU
to include surface coal mines and to address areas of mutual concerns
such as subsidence monitoring, coal bed methane, ground control, etc.
(Projected completion: August 31, 2010.)
Report 05-09-002-06-901--American Coal Company
(Total 5 recommendations: 2 closed, 3 open)
Rec. Establish a written plan for eliminating the current backlog
of overdue mine plan reviews and maintaining timely reviews in the
future.
MSHA took corrective actions to address backlogged mine plan
reviews and maintain a timely review process. Additional guidance and
staffing plan were issued to districts through CMS&H Memo No. HQ-09-
048-A (ORM-8). ``Complaints Received from American Coal Company
Complaint #1: Timely Mine Plan Approval.'' Data summarizing the status
of backlogged plan reviews (reduced by 78 percent as of February 2010)
was provided to the OIG for their review.
Rec. Issue a written policy or, if necessary, pursue legislation to
establish the basis far and circumstances under which inspectors are
not required to comply with tracking requirements of ERPs during an
inspection.
The General Inspection Handbook and the Hazard Condition Complaint
Handbook (and related HCC database) will be revised to include the
requirement that inspectors document in their notes compliance with
CMS&H Memo No. HQ-09-049-A (ORM-8). (Projected completion: September
30, 2010.)
Rec. Issue written guidance to its inspectors and to mine
operators, consistent with existing laws and regulations that clarify
its policy regarding the proper evaluation of a bleeder system.
MSHA has developed and drafted guidance (multiple Program Policy
Letters (PPLs)) on ``Effective Bleeder Systems.'' Because of their
technical nature, they are undergoing extensive Agency review.
(Projected completion: July 30, 2010.)
Report 05-08-002-06-001--Chargeable Fatalities
(Total 7 recommendations: 3 closed, 4 open)
Rec. Develop and implement a standard protocol for first
responders.
Rec. Establish and require a standard investigative protocol for
all reported fatalities.
Rec. Require that a chargeability determination be made only at the
conclusion of a complete investigation and considering all pertinent
and available evidence.
Rec. Establish a system to assure that all facts and information
used to reach a chargeability decision are supported by documentation.
MSHA implemented corrective actions to address the above
recommendations. The written protocols were also formally incorporated
into a revision of MSHA's Accident/Illness Investigations Procedures
Handbook. Issuance of the Handbook was delayed in order to incorporate
additional revisions resulting from a change in the issuance of orders
under sections 103(j) and (k) of the Mine Act, as well as formal
bargaining with the National Council of Field Labor Locals (NCFLL).
(Projected completion for issuance of the revised Al Handbook: July 30,
2010.)
Report 05-08-001-06-001--Underground Inspection Mandate
(Total 7 recommendations: 6 closed, 1 open)
Rec. Ensure policies and procedures are developed for calculating
the regular safety and health inspection completion rate and ensuring
the inspection data used is correct.
MSHA implemented corrective action to address the above
recommendation. The written protocol will also be formally incorporated
into a revision of the Program Policy Manual (PPM), (Volume I, section
103, Inspections, Investigations, and Recordkeeping). (Projected
completion: September 30, 2010.)
Report 05-06-006-06-01--Hazardous Condition Complaint Program
(Total 13 recommendations: 10 closed, 3 open)
Rec. Ensure that the expectations of timeliness for completing
evaluations of hazardous condition complaints under the Mine Act, 30
CFR 43, and MSHA policy are consistent and quantified in specific terms
(e.g., number of hours).
Rec. Ensure that the expectation of timeliness for beginning
inspections of ``imminent danger'' allegations is quantified in
specific terms (e.g., number of hours), and the subsequent inspections
are started within those specific timeframes.
A protocol has been developed to address the timeliness of both the
evaluation of hazardous condition complaints and the investigation of
imminent danger allegations. This written draft policy is currently
under management review. Once finalized, it will be incorporated into
the Hazardous Condition Complaint (HCC) Handbook. (Projected
completion: September 30, 2010.)
Rec. Ensure inspector notes receive appropriate supervisory review.
MSHA implemented corrective actions to address the above
recommendation. The written protocol will be incorporated into a
revision of the HCC Handbook. (Projected completion: September 30.
2010.)
Question. This subcommittee has supported the work of the Office of
Accountability, which provides oversight and examination of MSHA
enforcement programs to ensure that its policies, procedures, handbooks
and guidance are being consistently applied. What have been the major
findings of the Accountability Office's audit activities and have the
corrective actions that have been implemented to address these findings
resulted in expected improvements?
Answer. MSHA provided a report on the work and findings of the
Office of Accountability and the corrective actions taken to the
subcommittee in March 2010. A copy of that report is attached.
Question. How much funding is planned to be allocated to this
office under the 2011 budget request and how many audits would be
supported at this resource level?
Answer. The Office of Accountability is located in the Program
Administration budget activity. MSHA plans to allocate approximately
$600,000 in fiscal year 2011 for this office. MSHA is currently
evaluating the restructuring of the agency accountability audit
functions to assure that targeted areas are effectively audited.
At this resource level, the Office of Accountability expects to
conduct 24 accountability audits during fiscal year 2011.
Question. For each of the past 5 years, please provide the number
of technical specialists by type available for duty.
Answer. MSHA has a wide variety of specialists, and each is a
distinct discipline. Even between Coal, Metal and Nonmetal (MNM) and
Technical Support, the work to be performed is very different. For this
reason, we have reported the number of specialists for each of these
programs separately. As of May 31, 2010, MSHA has the following
positions in the Coal program:
COAL SPECIALIST POSITIONS
------------------------------------------------------------------------
Amount
------------------------------------------------------------------------
Underground:
Electrical.......................................... 59
Health.............................................. 56
Roof control........................................ 51
Special investigation............................... 17
Ventilation......................................... 54
Surface: Impoundment.................................... 21
---------------
Total, coal specialist positions.................. 258
------------------------------------------------------------------------
MSHA is unable break down the number of underground coal
specialists by expertise for past fiscal years, but can provide the
following totals for underground and surface impoundment specialists
for prior years:
------------------------------------------------------------------------
Surface
Underground specialists
specialists (impoundment)
------------------------------------------------------------------------
9/30/2009............................... 213 ..............
9/30/2008............................... 176 14
9/30/2007............................... 160 13
9/30/2006............................... 156 14
------------------------------------------------------------------------
Metal and Nonmetal had specialists in the following positions as of
September 30 of each of the following fiscal years:
METAL AND NONMETAL SPECIALIST POSITIONS
----------------------------------------------------------------------------------------------------------------
2006 2007 2008 2009 2010 \1\
----------------------------------------------------------------------------------------------------------------
Safety.......................... 6 6 7 7 6
Health.......................... 6 6 6 6 4
Industrial hygienist............ 3 3 1 2 3
-------------------------------------------------------------------------------
Total..................... 15 15 14 15 13
----------------------------------------------------------------------------------------------------------------
\1\ As of May 31, 2010.
Technical Support had the following positions split between its
Approval and Certification Center and Pittsburgh Safety and Health
Training Center, as of September 30 of each year:
TECHNICAL SUPPORT TECHNICAL SPECIALISTS
----------------------------------------------------------------------------------------------------------------
2006 2007 2008 2009 2010 \1\
----------------------------------------------------------------------------------------------------------------
Electrical engineers............ 21 22 20 22 22
Electronic technicians.......... 1 1 1 I 1
Mechanical engineers............ 15 15 14 15 15
Mining engineers................ 20 19 17 16 18
Industrial engineers............ 2 2 2 2 2
General engineers............... 30 28 29 32 31
Civil engineers................. 19 19 19 19 19
Chemical engineers.............. 1 1 1 1 1
Fire protection engineers....... 2 2 2 3 2
Engineering technicians......... 20 18 18 20 18
Physical scientists............. 12 10 11 12 12
Physicists...................... 1 1 1 1 1
Physical science technicians.... 7 7 7 7 7
Chemists........................ 7 7 6 4 4
Geologists...................... 3 3 3 3 3
Mine safety and health special- 4 4 4 3 3
ists...........................
Industrial hygienists........... 5 5 5 5 5
Mining equipment compliance 5 5 5 5 5
specialists....................
-------------------------------------------------------------------------------
Total..................... 175 169 165 171 169
----------------------------------------------------------------------------------------------------------------
\1\ As of May 31, 2010.
Question. How does MSHA ensure that such staff are available in
sufficient number and with appropriate skills and support to carry out
their important functions?
Answer. The District Manager determines the need, area of expertise
and projected workload on an annual basis and then works with the
Administrator, Deputy Administrator, and Management Officer on the
skill sets and needs, justifications, and budget allocations for
additional personnel. The program area consults with the Budget Office
and once approved at the Administrator level, the program area submits
the justification to the Office of the Assistant Secretary for filling
a new position and/or backfilling another position. Once the approval
is received from the Assistant Secretary, MSHA begins the process for
filling the vacancy.
In MNM, each district is approved for one specialist of each of the
three types (Safety, Health, and Industrial Hygienist). For example,
the Rocky Mountain and North Central Districts do not currently have
Industrial Hygienists working full time on this work, but assign
specialist work as an ancillary duty to qualified employees currently
performing other functions. An annual health conference is conducted
for review, education and planning.
In Coal, districts submit justifications for requests to hire
directly to headquarters. Justifications include the rationale for the
need, i.e. backfill due to attrition and ratios of the number of mines,
mechanized mining units (MMUs), etc., to inspector or specialist.
Headquarters reviews the justification and approves or rejects. Most
often, specialist positions are filled from within the current
inspector ranks; therefore, they are already seasoned journeymen
inspectors. Vacancies specify the discipline or expertise that the
district is seeking. Occasionally, most often when seeking an engineer,
a vacancy is advertised to the ``outside'', that is a non-MSHA
employee.
Question. What level of support for such positions is provided in
the current budget and under the 2011 budget request?
Answer. MSHA's fiscal year 2010 budget includes funding for the
current staffing as well as 4 specialist vacancies in Coal, 6 vacancies
in MNM, and 12 in Technical Support. The fiscal year 2011 budget
request contains the same amount of funding. The total number of
specialists in the proposed fiscal year 2011 budget are 262 specialists
in Coal, 18 in MNM, and 181 in Technical Support.
Question. Lastly, what are MSHA's policies and procedures for
completing review of mining plans, such as ventilation and roof control
plans, which afford the highest level of safety and health for miners?
Answer. Mining plans, submitted by operators, are evaluated and
approved on a mine-by-mine basis and take into consideration the
specific conditions at the mine. Each Coal Mine Safety and Health
district utilizes a checklist and other guidance materials. including
Program Information Letters (PIL) and PPLs, which are used to review
plans to ensure all safety and health issues are addressed before plan
approval. The checklist provides the reviewer with the most updated
list of factors that must be considered on a mine-by-mine basis in
determining whether a mine plan, once implemented, will protect the
health and safety of miners. If a District Manager finds that the
proposed plan is deficient, the checklist is used to note the specific
deficiencies in the operator's plan submission when a rejection letter
is sent to the mine operator. The current checklist is used during 6-
month reviews of all mining plans to ensure that any new statutory/
regulatory requirement is added to the plan (or any new guidance is
considered by the District Manager in light of mine-specific
conditions) and to address plan adequacy and citation history. Plans
that involve special reviews, such as roof control plans that are
complex due to unusual geological conditions, receive additional review
during the approval process. For such roof control plans, the operator
must submit plans with additional provisions and/or data/information
with the plan or any amendments. MSHA's Directorate of Technical
Support, Roof Control Division also provides analytical analysis to
assist the District Manager in determining the adequacy of all complex
and/or nontypical plan approvals and amendments.
For Metal and Nonmetal mines, Escape and Evacuation Plans are
reviewed twice annually by the district offices, as required by 30 CFR
Sec. 57.11053. Ventilation Plans are required to be updated annually by
the mine operator. Each district office reviews the plans on an annual
basis as required by 30 CFR Sec. 57.8520.
Question. How are technical disputes with mine operators related to
submitted plans resolved?
Answer. In those situations where MSHA can no longer accept a
provision of an approved plan, cannot approve a provision in a new
plan, or cannot approve a proposed change to an approved plan, MSHA
representatives will discuss the identified plan deficiency with the
mine operator in an effort to gain consensus promptly on a modification
to the provision so that the plan can be approved by MSHA and
implemented by the operator. However, if the mine operator is unwilling
to make plan modifications that MSHA believes necessary after a full
and fair consideration to provide the requisite level of miner
protection, and the operator adopts a deficient mine plan and/or
evidences an intent to mine in accordance with an unacceptable plan
provision, MSHA will issue a citation for a violation of the Mine Act.
Unless the operator evidences bad faith in conducting mining operations
without an approved plan, such violations generally are cited under
section 104(a) of the Mine Act, and they do not involve unwarrantable
failure findings.
The following several paragraphs show how the three situations
described above are handled.
When MSHA determines that a plan provision is no longer adequate,
the following plan approval revocation procedures are followed:
--The District Manager provides written notification to the operator
stating that changes are needed in the plan, identifies the
reason(s) such changes are needed, affords the operator an
opportunity to meet with District personnel to discuss any
proposed changes, and sets a reasonable period of time for the
operator to submit revised plan provisions to the District.
--If the operator fails to timely make modifications sufficient to
address the District Manager's concerns (or through District
and operator discussions the differences concerning the plan
cannot be resolved and the operator does not resubmit a revised
plan), a second written notification is sent from the District
Manager to the operator. The purpose of this notification is to
inform the operator that the District continues to be unable to
approve existing plan provisions for reasons identified in the
notification, specify a time by which suitable plan provisions
must be submitted by the operator to the District, and notify
the operator that after such time approval of the existing plan
will be revoked and the operator will be without the required
approved plan. Operating after the revocation date is a
violation of the standard that permits operation of a mine only
pursuant to an approved plan.
--If the parties reach impasse after good-faith discussion, MSHA
issues a citation, which the operator may contest before an
Administrative Law Judge (ALJ) of the Federal Mine Safety and
Health Review Commission (FMSHRC). The operator can request an
expedited hearing. The ALJ makes a decision based on evidence
provided, either requiring the operator to submit a revised
plan for MSHA approval or finding unreasonable the District
Manager's decision to refuse to approve the plan as submitted.
Prior to resolution by the FMSHRC, the operator can abate the
citation and continue to mine by adopting and mining in
accordance with a plan that contains provisions that MSHA has
identified as being necessary to achieve the appropriate level
of miner protection.
--With this approach, there is no need to operate in violation of the
mine's approved plan, and the violation would be ``technical''
in nature.
In the case of an operator-proposed change to an existing approved
mine plan, if approval of the change is denied, the operator could
notify the MSHA District that, as of a certain date, the mine's
existing approved plan is no longer adopted by the operator, and that
the operator intends to adopt the proposed change which is not
approved. On that date, a section 104(a) citation would be issued for
the operator's failure to have and adopt an approved plan, and the
operator may contest the citation before a FMSHRC ALJ. Abatement would
be achieved by the operator promptly adopting the provisions of the
most recently approved plan for the mine. Again, there need not be any
changes made in the actual mining procedures, and the violation would
be ``technical'' in nature.
The case of a new mine plan with a provision that cannot be
approved would be handled in a similar manner. The operator would
indicate that mining operations will begin on a particular date, using
the plan that contains the provision which is not approved. On the date
indicated for starting operations, a citation would be issued for
failure to adopt and follow an approved plan, as required by the
applicable standard, and the operator may contest the citation before a
FMSHRC ALJ. Abatement would be achieved by the operator promptly
adopting provisions that satisfy MSHA's previously documented concerns.
Under each of these circumstances, once a citation is issued, the
operator has the right to contest the violation and to present evidence
to an ALJ regarding the reasons why the disputed plan provision should
have been approved. Likewise, MSHA would present its reasons for
revoking or denying approval.
Question. According to information from DOL, roughly 95 percent of
MSHA citations over the past 4 years have been or are expected to be
upheld without change, including those that have gone to a hearing
before the FMSHRC. And, Mr. Main indicated in his testimony that less
than one-half of 1 percent of citations are vacated. However, both Mr.
Main and Ms. Smith indicated that steps are being taken to make the
citation process more objective and consistent, and address
simplification of the penalty rules, which should result in fewer
contested citations. Would you both describe the steps taken and/or
planned and the funding required to support these activities?
Answer. The steps MSHA is taking and/or plans include the
following:
--Ensuring consistency among inspectors is one of MSHA's priorities.
Currently, a new MSHA inspector must participate in extensive
classroom training for up to 18 months as well as in on-the-job
training with a journeyman inspector before the inspector can
begin unsupervised inspection duties. MSHA is auditing
inspector performance to improve quality and consistency.
Following confirmation of Assistant Secretary Main, MSHA
initiated a training program for all supervisors that includes
``law, regulation, and policy;'' ``citation and order
writing;'' and ``field activity review.'' That training program
assures that MSHA journeyman inspectors are properly overseeing
on-the-job training of new inspectors.
In addition, MSHA has recently undertaken a distance learning
initiative to provide additional training to entry-level and
journey-level inspectors. This type of training allows MSHA to
deliver more training at a low cost to inspectors. MSHA
currently has 18 distance-learning training programs available
for coal mine inspectors. One example is the recently released
``Rules to Live By'' course. ``Rules to Live By'' training
focuses on 24 frequently cited standards (11 in coal mining and
13 in metal/nonmetal mining) associated with conditions that
commonly cause or contribute to fatal accidents in the mining
industry. Over time, the distance-learning initiative will
result in improved consistency in enforcement.
MSHA will continue to review its inspector training programs, and
where necessary, adjust or expand training for improved
consistency. In addition, MSHA is evaluating the citation
writing process to improve simplicity and clarity, and to
establish a method to locate and correct any errors in the
citations that cause operators to file hearing requests with
the FMSHRC.
--MSHA is in the process of revising the MSHA conferencing process
with mine operators following issuance of citations and orders
but prior to the actual contesting of the citation. Under the
current system utilized by most MSHA districts, the MSHA
district conferences are not held to resolve disputes until
after the penalty is contested which then requires approval by
the FMSHRC. These settlements add to the backlog of cases
pending before the FMSHRC. By holding the conferences prior to
the contesting facts in dispute the violations can be
immediately resolved and settled.
--MSHA plans to revise its criteria for a proposed assessment of
civil penalties. Simplifying and clarifying the procedures for
the citation process and the assessment of civil penalties
should eliminate some of the areas of dispute when a citation
is issued, which should in turn reduce the number of contested
citations.
The civil penalty regulations were last revised in 2007, and
adjusted for inflation in 2008. MSHA will be evaluating
proposed penalties to assure that they are a sufficient
deterrent for operators who fail to comply with safety and
health requirements. In most of the contested cases before the
FMSHRC, the issue is not whether a violation occurred. Instead
the dispute is over the gravity of the violation, the degree of
mine operator negligence, and other factors. Currently, when
writing a citation a mine inspector determines:
--Among five categories the likelihood of injury from the
violation;
--Among four categories the severity of an injury if one occurred;
--The number of persons affected by the hazardous condition;
--Whether the violation is significant and substantial; and
--Among five categories the operator's degree of negligence.
Once a citation is issued, MSHA issues a proposed assessed penalty.
MSHA's existing civil penalty regulations involve assigning
specified penalty points to a violation using various tables
that set forth the penalty criteria in the Mine Act. The total
points are then converted into a dollar amount using a penalty
conversion table. Penalties increase more significantly for
large mine operators, operators with a history of repeated
violations of the same standard, and for operators whose
violations involve high degrees of negligence or gravity.
MSHA's rulemaking process will consider how to simplify the
procedures regarding the issuing of citations and the
assignment of penalty points. MSHA has included this rulemaking
on the Department's spring regulatory agenda and plans to issue
a proposed rule in January 2011.
MSHA does not anticipate requiring additional funding for these
activities.
Question. During the hearing, both Mr. Blankenship and President
Roberts raised concerns about how the accident investigation is to be
conducted. I would like the Department's rationale for how it's
planning to conduct this investigation. How will the Department ensure
that this investigation is comprehensive and open and gets to the
bottom of what caused this accident as quickly as possible, so we can
avoid another mine accident?
Answer. The investigation of the Upper Big Branch (Upper Big
Branch) mine accident is being conducted as a coordinated investigation
of MSHA and two investigative teams from the State of West Virginia.
The planning of the investigative process was driven by a commitment to
learn what caused the accident, to transparency and openness, and to
ensure that the investigation does not impede the ongoing criminal
investigation of the U.S. Department of Justice.
The coordinated Government investigation will use all Federal and
State enforcement tools that are available, including subpoenas. A
Federal-State accident investigation team will conduct a physical
inspection of the underground portions of the mine (with
representatives of the miners and the mining company), collect
documents and other physical evidence from Performance Coal Company and
other interested persons, and conduct interviews of witnesses with
knowledge of relevant facts. In order to facilitate the interviews, the
State of West Virginia has agreed to issue subpoenas, and, actually,
has issued a few subpoenas in cases where they were found it to be
necessary. MSHA also intends to hold an unprecedented series of public
hearings that will build on the information that is learned from
initial investigative activities. One hearing is designed to be a fact-
finding hearing; another will explore the technical aspects of the
theory or theories surrounding the explosion; a third hearing will be a
public forum that offers surviving family members the opportunity to
express their thoughts; and a fourth hearing will be a town hall
meeting designed to promote the exchange of ideas on how to create a
``culture of safety'' at mining operations, and gather recommendations
for the future. Together, these activities will constitute the most
comprehensive and open investigation in the history of MSHA, and MSHA
will publish a detailed report of the investigative findings.
While both Mr. Blankenship and Mr. Roberts raised concerns about
the exclusion of their own organizations from the Government-only
initial interviews, the implication that MSHA will be able to hide
possible malfeasance on its part by excluding the general public
ignores the presence and participation of the independent West Virginia
investigators at the interviews. Members of both West Virginia
investigative teams are present at all interviews and are given the
opportunity to, and in fact do, question witnesses extensively.
Question. Further, how will the internal review be thorough and
objective, so MSHA and others understand what needs to be corrected at
MSHA in terms of its adherence to its own policies and procedures?
Answer. Consistent with its historical policy and practice, MSHA
has formed an Internal Review (IR) Team to examine the agency's own
actions before the explosion. The IR Team, which is separate from the
Accident Investigation Team, will collect relevant documents and
information, conduct interviews of various witnesses, and will publish
its findings, conclusions, and recommendations.
Question. Last, how much funding is needed to ensure that the
investigation and internal review is thorough, objective, and open?
Answer. MSHA estimates it will need approximately $4,500,000 to
conduct a thorough review of the events at the Upper Big Branch mine
disaster. This reflects the estimated total cost for the MSHA-conducted
Accident Investigation, Internal Review, and public hearings. A recent
comparable investigation (Sago) cost approximately $1,000,000 for the
accident investigation and internal review. The Upper Big Branch
investigation will be on a significantly larger scale with a greater
number of staff detailed to both the investigation and internal review.
In addition, the accident investigation will consist of an initial
investigation followed by a series of public hearings, which will
require significant preparation and will address broader issues such as
the reluctance of miners to come forward and report hazardous
conditions at their mines.
Additionally, $1,000,000 is necessary for the potential independent
investigation and critical review of MSHA processes conducted by the
National Science Foundation or similarly esteemed organization.
Question. How many mines have records of violations similar in
number to the Upper Big Branch mine, and how many have a history of
frustrating MSHA efforts to enforce compliance?
Answer. There are 29 mines that have more Significant and
Substantial (S&S) citations and orders than Upper Big Branch during
fiscal year 2009-fiscal year 2010 (as of June 3, 2010). Of these 29, 4
are Massey Energy Company mines. Some of these mines are much larger
mines with more mining sections, producing more tons of coal and
employing many more miners than Upper Big Branch.
Question. What is MSHA doing immediately to address these mines?
Answer. MSHA conducted impact inspections of coal mines whose
history of underground conditions indicated a significant number of
violations related to methane accumulations, ventilation practices,
rock dust applications, and inadequate mine examinations. MSHA issued
1,454 citations, orders, and safeguards to 57 coal mines during the
week of April 19 through 23, 2010. Since then, we have conducted
additional impact inspections at both coal and metal/nonmetal mines,
and we plan to continue to target mines with compliance problems. In
six Kentucky mines where MSHA conducted impact inspections, MSHA found
ventilation and dust violations that affected entire mines and
consequently issued closure orders that required the mines to be closed
until the violations were abated.
As I mentioned in my May 20, 2010 testimony before the
subcommittee, MSHA is endeavoring to become less predictable with our
inspections. Modeled after MSHA's special respirable dust emphasis
inspections at underground coal mines, MSHA will be conducting more
inspections during the off-shifts and increasing inspector presence at
mines with multiple mechanized mining units. Where evidence warrants,
enforcement personnel are ``capturing the phones'' during subsequent
impact inspections and increasing our effectiveness by preventing
operators from giving advance notice of our inspection activities. MSHA
is also launching legal actions against mine operators that provide
advance notice of inspections, such as the recent case involving two
Kentucky coal mines.
MSHA also plans additional ``blitz inspections'' during the
remainder of this fiscal year and in fiscal year 2011. We are currently
evaluating selection criteria for mines warranting targeted enforcement
beginning in July 2010.
In concert with DOL attorneys, we have identified mines with large
numbers of contested violations for which we have requested expedited
hearings before the FMSHRC and will request additional hearings when we
find mines that would meet the criteria for being placed on a statutory
``pattern of violations'' absent the lack of final orders from the
FMSHRC.
MSHA is currently providing technical assistance to Congress on
amending the Pattern of Violation standard contained in the Mine Act
and has announced plans to revise the Pattern of Violations regulations
and screening criteria. MSHA will carefully craft these regulations and
screening criteria to eliminate the existing flaws that allow mine
operators to avoid the stricter sanctions by tying up serious
violations in litigation.
Question. According to news media, MSHA negotiated an agreement
with Massey Energy in 2006 to waive filing deadlines for contesting
citations. Is there any truth to that?
Answer. The Department's Office of the Solicitor (SOL) negotiated
an agreement with Massey Energy in 2006 not to oppose Massey's motions
to reopen cases under certain conditions. Attached are the September
2006 informal agreement and the May 2009 letter rescinding the
agreement. Operators can contest citations, they can contest the
penalties assessed at a later time because of those violations, or they
can contest both. SOL entered into the agreement in 2006 to try to
reduce the number of pre-penalty contests (i.e., contests of underlying
citations issued before a penalty was assessed). At the time SOL
entered into the agreement, Massey was filing a large number of
frivolous pre-penalty contests so that, if it subsequently neglected to
file timely contests of the penalties themselves, but won the pre-
penalty contest of the underlying citation, MSHA would not be able to
collect the associated penalty.
To reduce the filing of so many pre-penalty contests, and the
resulting burden of having to litigate the underlying violation in each
case, SOL agreed not to oppose mistake- or inadvertence-based requests
to reopen penalties that Massey neglected to timely contest if (1) the
reopening request was filed within a reasonable time, not to exceed a
year, and (2) MSHA would not be prejudiced by reopening.
At the time the agreement was entered into, SOL did not oppose, and
the FMSHRC granted, the majority of reopening requests. In practice,
the agreement did not significantly alter the requirements for
reopening previously applied by MSHA and the Commission. The agreement
did not purport to, and could not, restrict the FMSHRC's application of
existing rules and case law to reopening requests.
A search of SOL records establishes that, during the time the
agreement was in effect, SOL opposed Massey reopening requests at
approximately the same rate it opposed other reopening requests.
Specifically, SOL opposed four reopening requests and decided not to
oppose seven. As to reopening requests pertaining to the Upper Big
Branch mine, SOL opposed three reopening requests and declined to
oppose none.
Over the following 2 years, Massey started using the agreement for
purposes beyond what it was intended and tried to claim that there was
a blanket agreement to not object to reopening requests. The agreement
clearly had outlived its intended purpose, and Massey's attorneys were
misapplying it. Accordingly, SOL formally rescinded the agreement.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Question. Were other operators offered similar waivers? Please list
the number of exemptions granted and deadlines waived annually.
Answer. SOL does not have authority to grant exemptions or waive
deadlines. Only the FMSHRC can decide whether to allow an operator to
reopen a case. SOL offered no other operators a similar agreement not
to oppose reopening in certain specified circumstances.
Question. Why is MSHA not issuing an Emergency Temporary Standard
to expedite its rule-making agenda?
Answer. MSHA has not ruled out the use of Emergency Temporary
Standards (ETS). The Mine Act allows MSHA to issue an ETS when the
Secretary determines that miners are exposed to grave danger from
exposure to substances or agents determined to be toxic or physically
harmful, or to other hazards, and that an emergency standard is
necessary to protect miners from that danger. MSHA can only issue an
ETS for health and safety standards promulgated under section 101 of
the Mine Act. Because the regulation concerning Pattern of Violations
is not a mandatory safety or health standard, this is not among the
possible areas where an ETS would be implemented.
Question. Why is MSHA unwilling to revisit the screening criteria
for pattern violators outside of the formal rulemaking process?
Answer. MSHA is not unwilling to revisit the screening criteria for
pattern violators outside of the formal rulemaking process. Prior to
the Upper Big Branch mine disaster, MSHA was working on new screening
criteria within the current regulations. Following the mine disaster,
Congress requested that the Office of the Inspector General (OIG)
review the pattern of violation screening criteria and report
recommendations. Realizing that the pattern of violation system was
broken, MSHA pledged to work with the OIG to evaluate the screening
criteria to make improvements. MSHA is also currently providing
technical assistance on legislation affecting the pattern of violation
standard contained in section 104(e) of the Mine Act which could lead
to possible amendments of the statute. With that in mind, along with
plans by MSHA to revise the pattern of violation standards, MSHA will
continue to work on new screening criteria.
Question. The National Institute for Occupational Safety and Health
(NIOSH) has studied the most severe mine explosions to identify
ignition locations and sources. NIOSH linked many fatalities to
nonpermissible electrical equipment located in intake air courses. What
is MSHA doing to address this and other issues raised by NIOSH?
Answer. MSHA is interested in this research and the potential to
increase protection to miners from explosions involving nonpermissible
equipment. MSHA is reviewing the results to determine what improvements
can be pursued.
Question. MSHA and NIOSH are investigating an activation problem
with the SR-100, which is an emergency breathing device that has been
recalled. What is the status of the joint investigation?
Answer. On April 30, 2009. NIOSH, MSHA, and the CSE Corporation
(CSE), the manufacturer of the SR-100, met to discuss progress on the
investigation. CSE advised that the engineering company could not
replicate the leak, but suspected the threaded connection between the
valve and the cylinder body on the start-up oxygen cylinders could be
the cause of the problem. They suspected that the application of the
sealant on the threads was irregular on cylinders that leaked, which
would be a Quality Assurance (QA) problem on received cylinders from
Afrox (a South African company). The QA problem that Afrox may have is
a manufacturer's final inspection and test process issue. Also, CSE's
incoming inspection QA process may have to be improved to identify the
cylinder defects prior to final assembly. NIOSH and MSHA told CSE that
because the root cause cannot be identified, and since the problem
cannot be confined to any particular subset of the population of start-
up cylinders, the problem could potentially be found in any start-up
cylinder in the field. We requested CSE to issue a second User Notice,
notifying the industry about this, and also requested CSE to maintain
their voluntary stop-sale, which has continued since the issuance of
the February User Notice. When CSE has a solution, they will be allowed
to return to production. Units in the field will need to be addressed
either by a retrofit or replacement program.
Question. Flow many breathing units are affected?
Answer. There are approximately 80,000-90,000 CSE SCSRs in the
field and a total of approximately 190,000 SCSRs from all manufactures
in the field, according to records in the MSI IA SCSR database.
Question. What is MSHA doing to notify miners?
Answer. CSE issued the second User Notice the beginning of May. The
MSHA Web site, www.dol.gov/MSHA, includes information on all User
Notices and a training notice regarding the Manual Start of chemical
SCSRs. All User Notices have been distributed to all underground coal
mines. MSHA Inspectors are checking to see that miners have been
notified at mines and have been trained in the manual start procedures.
Question. How is MSHA ensuring that operators address the problem?
Answer. MSHA and NIOSH jointly conducted conference calls with the
key National Mining Association (NMA), Bituminous Coal Operators
Association (BCOA), and United Mine Workers of America (UMWA)
representatives to update the investigation. Inspectors have been
instructed to check that miners have been informed about the CSE SCSR
problem and that they have been trained in the manual start procedure.
MSHA CMS&H and Technical Support have drafted one Procedure Instruction
Letter (PIL) and two Program Information Bulletins (PIB). One PIB
relates to the second User Notice distributed by CSE, disseminating the
information across the industry. The second PIB clarifies PPL
requirements for mine operator testing of SCSRs with a 1 percent
sample, and reiterates procedures to follow when problems are
discovered with any SCSR in the field. CSE is exploring retrofit
options that potentially would have to be provided for all SR-100 SCSRs
in the field. CSE has a second engineering company exploring the use of
a CAT scan to determine the distribution of sealant along threaded
connections. Weekly progress reports are being provided to NIOSH and
MSHA.
Question. What is the plan and timeline for reorganizing MSHA
District 4 into two districts?
Answer. Recently, we provided information to the Congress that
included a proposal for $1,048,000 to begin the reorganization and
subsequent build-out of a new District office. MSHA has been working
with the General Services Administration (GSA) to identify potential
locations to house the new facility in the vicinity of the existing
Pineville, West Virginia field office. If supplemental funding is
provided, MSHA estimates the entire process of opening a new District
office will take between 16-24 months, depending on our ability to find
a suitable pre-existing structure that meets space requirements. Absent
that, GSA would enter into a lease agreement for a build-to-suit
facility. This would push the occupancy timeline of the District's
permanent home out to approximately 24 months. MSHA plans to hire
between 16-18 personnel to staff the District Office. There will be no
increase to the Coal activity's PTE ceiling; these positions will be
realigned from other Coal districts where mining activity has
decreased. In order to be fully staffed and operational prior to a
permanent building being ready for occupancy, MSHA will secure
temporary space to house employees.
Question. Assistant Secretary Main, please describe any
irregularities that MSHA has found on the fan charts for the Upper Big
Branch mine?
Answer. The accident investigation into the Upper Big Branch mine
disaster is still ongoing. Matters such as these and how they relate to
other evidence in the investigation are being examined by the
investigation. Once that is concluded, we will be able to report on the
findings.
Question. I request that you or Dr. Howard describe whether there
are more advanced and tamper-proof technologies for mine fan record-
keeping?
Answer. The current 30 CFR 75.312 regulation requires the
measurement and recording of the mine fan pressure and examination of
the fan each day. In most cases, the fan pressure is measured by a
mechanical recorder with a paper chart on it. Some mines utilize a
computerized system using the mine's Atmospheric Monitoring System and
routing the information to a centralized facility. Computerized
monitoring systems provide the opportunity for data to be
electronically transmitted and stored.
Question. How can we ensure that records are accurate, and that
MSHA receives the accurate information in time to intervene promptly on
behalf of miners?
Answer. Fan charts have been used for years, but other methods
could be utilized. A system that would download data at a secure data
collection location may provide additional information. Expanding the
use of mine-wide atmospheric monitoring that would constantly monitor
and identify changes in air pressures and quality such as methane,
carbon monoxide, and oxygen levels at strategic locations in the mine
that could trigger alerts to miners would improve miners' safety.
Question. How can advanced technology and computerized records
improve this process?
Answer. Advanced technologies can improve mine safety in a number
of ways. As noted, the use of mine-wide atmospheric monitoring systems
can provide immediate information on problems that can lead to mine
explosions. Technologies that monitor the mine atmosphere at strategic
locations that can detect levels of methane, carbon monoxide, oxygen
deficiencies, loss of ventilation pressures, reversal of air
directions, and provide warning before they endanger miners can be
implemented. These are sound preventative measures that can help
protect miners.
To help speed-up mine rescue efforts during an emergency, mine-wide
atmospheric monitoring can be accomplished with a tube bundle system.
In a tube bundle system, plastic sampling tubing is placed in strategic
underground sampling locations, such as section return regulators and
bleeder evaluation points, and is extended to a location on the surface
of the mine. Sampling pumps located on the surface of the mine draw the
air samples to monitoring and recording equipment. A similar method has
long been used successfully by MSHA to sample mine atmospheres remotely
after a mine lire or explosion. A tube bundle system has also been used
extensively in Australian mines.
lake lynn experimental laboratory
Question. Review the estimates for getting Lake Lynn reopened and
to provide an updated estimate to the subcommittee.
Answer. The estimated cost of repairs to the Lake Lynn Experimental
Laboratory is $12 million pending availability of appropriations. The
following provides an outline of the timeline and schedule of repairs
for the Lake Lynn Experimental Laboratory based on the successful
acquisition of property by December 30, 2010:
--December 2010.--Acquisition of Lake Lynn facility is pending
approval.
--January 2011.--Design phase for construction and repairs begins
assuming the Centers for Disease Control and Prevention
acquires purchase of Lake Lynn.
--June 2011-2013.--Quick entry repairs completed to enable temporary
access through existing primary access route, until
construction of the two new entry portals is complete. When the
new portals are operational, the temporary access route will be
decommissioned because of the poor quality of the roof rock in
the area of that route. Construction of new portals is
complete, providing full access to the mine, pending
availability of appropriations.
______
Questions Submitted to John Howard
Questions Submitted by Senator Thad Cochran
coal dust explosibility meter (cdem)
Question. The goal of the National Institute for Occupational
Safety and Health's (NIOSH) Office of Mine Safety and Health Research
is the prevention and elimination of mining fatalities, injuries, and
illnesses through research and safety interventions.
NIOSH is currently pursuing commercialization of the CDEM, which is
a portable device that will provide the mining industry with a means to
assess accurately and in real time the hazard of coal mine dust
explosibility. As it now stands, an inspector collects samples that are
sent away and take 2 weeks to process. CDEM will not be commercially
available until next year.
NIOSH has also conducted research into the utility, practicality,
survivability, and cost of refuge alternatives in an underground coal
environment. State and Federal efforts resulted in the introduction of
refuge chambers throughout the underground coal industry. However,
alternatives to chambers such as an in-place shelter were left largely
untouched and a range of chamber operational questions remain unknown.
It my understanding that we only learned after the Upper Big Branch
mine explosion that the mine had an impermissible coal and rock dust
mixture shortly before the explosion. Could real-time information on
the hazard have played a role in potentially preventing this explosion
and future explosions?
Answer. The ratio of coal and rock dust mixtures in underground
coal mines provides insight into the explosibility hazard in a mine.
Historically, samples of the dust mixture were collected and then sent
to a laboratory for analysis, which required days or weeks for results
to be obtained. NIOSH believes that reducing this analysis time would
greatly improve the mining industry's ability to avoid potential
explosion hazards. Therefore, NIOSH conducted a research study to
develop a device capable of evaluating the ratio of coal and rock dust
mixtures and the explosibility hazard in real-time. NIOSH achieved its
research goals by developing the CDEM, which provides the same
information as historical methods but within minutes of collecting the
samples. Thus, the CDEM allows mine operators to know immediately if
they must add more rock dust to maintain an inert mixture of rock to
coal dust to avoid an explosion hazard. Similar to the past development
of the methanometer, which allowed mine operators real-time knowledge
of methane levels, the CDEM is expected to reduce the risk of
explosions by allowing operators to identify and mitigate explosion
risks at significantly earlier time points.
Question. Would additional Federal resources allow for the
commercialization of the CDEM sooner than the next year?
Answer. NIOSH recognizes the significant benefits that the CDEM
would provide to the underground coal mining industry by allowing
explosion hazards to be identified and mitigated at earlier time
points. As such, NIOSH has used its allocated funds efficaciously to
assist in the commercialization of this device. Therefore, any
additional Federal resources would have minimal impact on the timeframe
for when this device becomes available to the public. However, a
significant barrier to the commercialization of this device still
exists. At the May 20, 2010, Mine Safety hearing, Dr. Howard indicated
that the primary barrier to commercialization is the lack of a
regulatory driver, given the small market share that the United States
underground coal mining industry represents to potential manufacturers.
Question. What can be done to increase mineworker confidence in
refuge chambers, and to address the issue that the value of this
potentially lifesaving technology remains undetermined?
Answer. NIOSH conducted a number of in-house and contract research
efforts in response to the mandates in the MINER Act and for
preparation of the report to Congress. Specific in-house studies
addressed such issues as the moving of refuge chambers located on
active sections, the economic aspects of refuge chambers and in-place
shelters, explosion pressure requirements, location, food and water
requirements, interior space requirements, training needs, and
simulated occupancy testing of the systems for providing breathable
air. These data, coupled with feedback regarding refuge chambers
already in use, have identified several critical gaps. These gaps,
which remain a concern, involve the effectiveness of individual
components of the technology and the ability of refuge chambers to
function as advertised by the manufacturers. Therefore, NIOSH believes
that the greatest impediment to increased mineworker confidence in
refuge chambers relates to significant technology concerns rather than
a perception issue within the industry. Until these functional issues
are evaluated through a comprehensive research project, and the
problems identified are addressed by the manufacturers, increased
mineworker confidence may continue to be a concern. NIOSH is developing
a research project to examine the major barriers to using refuge
chambers and potential improvements to the technologies currently being
used. The issues addressed may include, but will not be limited to,
communications, heat and atmosphere management, scrubbing or purging of
carbon monoxide, explosion resistance, movement and utilization,
testing and approval processes, and training.
______
Questions Submitted by Senator Robert C. Byrd
mine safety and health administration
Question. National Institute for Occupational Safety and Health
(NIOSH) has studied the most severe mine explosions to identify
ignition locations and sources. NIOSH linked many fatalities to
nonpermissible electrical equipment located in intake air courses. What
is MSHA doing to address this and other issues raised by NIOSH?
Answer. NIOSH has informed Mine Safety and Health Administration
(MSHA) that NIOSH is available to discuss the implications of the
research referenced in this question.
investigation of the sr-100
Question. MSHA and NIOSH are investigating an activation problem
with the SR-100, which is an emergency breathing device that has been
recalled. What is the status of the joint investigation? How many
breathing units are affected? What is MSHA doing to notify miners? How
is MSHA ensuring that operators address the problem?
Answer. NIOSH has played an active role in the investigation of the
activation problem with the SR-100 in coordination with MSHA and the
manufacturer. NIOSH, MSHA, and the manufacturer of the product in
question (CSE Corporation) have met on several occasions to discuss the
activation problem. At this time, the manufacturer believes that it has
identified the source of the problem as being the sealant on the
threads of the connection between the valve and the cylinder body on
the start-up oxygen cylinders. Meanwhile, the manufacturer has not been
able to identify a subset of its units with this particular problem,
nor has the manufacturer identified the root cause of the problem in
the manufacturing or QA process. The manufacture has stopped production
and sale until the problem is resolved. NIOSH has issued several
notices for users, including miners, on this problem. The most recent
of these is the Respirator User Notice on the CSE SR-100 Self-Contained
Self-Rescuer activation problem issued on October 20, 2010. In this
notice, NIOSH and MSHA inform users of the actions they are taking to
randomly sample and test SR-100 respirators from mines to determine the
prevalence of the problem in field-deployed units. Once this
investigation is complete, the agencies will decide what further
actions may be necessary. More recently, NIOSH has identified an
additional problem with opening some of the CSE SR-100 units, and NIOSH
and MSHA are investigating this problem. NIOSH is currently developing
training materials for mine workers that will explain how to determine
if their SR-100 unit is functioning, and what they should do in the
event that their unit fails to provide oxygen.
ubb mine
Question. Please describe any irregularities that MSHA has found on
the fan charts for the Upper Big Branch mine? I request that you or Dr.
Howard describe whether there are more advanced and tamper-proof
technologies for mine fan record-keeping? How can we ensure that
records are accurate, and that MSHA receives the accurate information
in time to intervene promptly on behalf of miners? How can advanced
technology and computerized records improve this process?
Answer. NIOSH believes that mine-wide atmospheric monitoring is an
advanced technology that may improve safety in that the information
provided may be used in real-time to mitigate explosion hazards. These
technologies may be used to identify changes in methane, ventilation
parameters such as pressure and velocity, carbon monoxide levels, etc.
throughout the mine. This data has great potential for detection of
hazards that may otherwise go undetected.
______
Letter From Patton Boggs LLP
Washington, DC, November 12, 2010.
Hon. Tom Harkin,
Chairman, Subcommittee on Labor, Health and Human Services, Education,
and Related Agencies, Committee on Appropriations, Room 131,
Dirksen Senate Office Building, Washington, D.C. 20510-6025.
Hon. Thad Cochran,
Ranking Member, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Committee on Appropriations,
Room 131, Dirksen Senate Office Building, Washington, D.C.
20510-6025.
Dear Chairman Harkin and Ranking Member Cochran: I write on behalf
of my client, Massey Energy Company (``Massey'' or the ``Company''), in
response to certain questions posed by Senator Cochran and the late
Senator Robert Byrd of West Virginia. Provided below is my best effort,
in consultation with Massey, to answer those questions as thoroughly as
possible in the hopes that it will be of assistance to your committee
in its important work exploring the issue of mine safety in this
country. If after you have had an opportunity to review our responses
below, there is any further information that you need, we will make
best efforts to assist you.
For the sake of clarity and convenience, we have set out the
questions and answers together.
______
Senator Byrd Question Number One. You said that you have strongly
resolved to do everything possible to prevent this type of incident
from happening again, and we want to take you at your word.
Nevertheless, after its 2006 mine disaster, the Aracoma Alma #1 Mine
still, in 2007, received 100 withdrawal orders for unwarrantable
failures to comply with the Mine Act, and 11 withdrawal orders for
failures to abate cited violations in a timely manner. Additionally,
you currently have several other underground mines in or near West
Virginia that are already on track this year to have as many withdrawal
orders as the Upper Big Branch Mine had last year. What specific
actions will you take to reverse these trends and prevent further
injuries, illnesses, or deaths? In this regard, I am referring to mines
receiving repeated 104(d)(2) withdrawal orders so far this year, in the
following quantities:
Spartan Mining--Road Fork #51--22 orders
Freedom Energy Mining--Mine #1--32 orders
Inman Energy--Randolph Mine--11 orders
Massey's Response:
The tragedy on April 5, 2010 at Performance Coal Company's Upper
Big Branch (``UBB'') mine deeply affected everyone at Massey;
obviously, the greatest and most tragic impact was felt by the twenty-
nine families who lost loved ones. In the face of this disaster, Massey
has worked tirelessly to determine the cause of this accident and has
redoubled its efforts to ensure to the extent humanly possible that
nothing like it ever happens again. Apart from joining the Mine Safety
and Health Administration (``MSHA'') and the West Virginia Office of
Miners' Health, Safety and Training (``WVOMHST'') in the current
underground investigation of the UBB mine, Massey has reevaluated its
safety practices and implemented an even more demanding set of safety
measures in all of its mines. Provided below is a summary of these
changes.
Since Senator Byrd's question mentions the 2006 Aracoma accident,
it is important to mention briefly the numerous safety measures
instituted by Massey immediately afterward. Because that incident
involved an underground fire, Massey specifically improved its methods
of fire prevention and control; for instance, Massey retrained
dispatchers and atmospheric monitoring system operators, including the
dispatcher on duty at the time of the Aracoma fire. The mine's
dispatchers are now trained in safe haulage related to ventilation
systems, firefighting, and emergency evacuation. Massey also installed
at Aracoma state of the art sprinkler fire-suppression systems that far
exceed state and Federal requirements. In addition, Aracoma now has:
(i) new fire hoses with permanent water connection and improved access;
(ii) thermal imaging devices; (iii) updated training of its mine rescue
teams; (iv) a mobile firefighting trailer loaded with specialized
firefighting equipment; (v) a mobile smoke room training unit to train
miners for difficult mine fire evacuations; and (vi) enhanced quality
assurance testing of all self-contained self rescue (``SCSR'') devices.
In 2007, Massey even unveiled an innovation in the field of mine
safety: a self-contained foam fire-fighting mine car. The 2007
withdrawal orders referenced in Senator Byrd's question were more a
reflection of MSHA's heightened scrutiny of Aracoma in the wake of that
accident than of conditions at the mine, and the validity of those
orders is currently in contest. Indeed, in the same year that MSHA
issued those withdrawal orders, Aracoma ranked among the very safest
mines in the nation with a remarkable 0.00 nonfatal days lost
(``NFDL'') incidence rate in 2007. Honoring that exceptional
accomplishment, on May 9, 2008, the Joseph A. Holmes Safety Association
presented Aracoma's Alma and Hernshaw mines with prestigious national
Pacesetter Awards for outstanding safety achievement. Aracoma also
earned Massey Energy Company's 2007 Bradbury Safety Award, an annual
award recognizing Massey's safest mining operation. This stark contrast
between the withdrawal orders and contemporaneous safety awards is
powerful proof that MSHA's subjective enforcement actions do not always
accurately reflect the safety condition of a mine.
With respect to UBB, Massey already had instituted a number of
safety measures before the accident. As a result of an increase in MSHA
citations and orders at mines like UBB and Spartan Mining's Road Fork
#51 mine, Massey created the Hazard Elimination Committee in 2009. The
committee is composed of experts who review all citations, identify
related problems, order all necessary corrective measures, and then
work to prevent any similar lapses at either the mine in question or
any other Massey mine. More globally, the Hazard Elimination Committee
carefully reviews mines with a history of withdrawal orders and
institutes corrective actions designed to ensure the safety of Massey's
employees (whom Massey refers to as ``members''). Since the UBB
accident, Massey separated and expanded the committee into more
specialized units and also instituted Hazard Elimination Committees at
the resource group level, which allows for real time solutions. The
number of people on the committee also has grown from 20 to 50,
ensuring that the Hazard Elimination Committee has the resources to
fulfill its mandate. Going forward, Massey sees these committees as
critical to creating a unified response to any systemic issues.
Besides the Hazard Elimination Committees, Massey also has
instituted a more robust internal audit program that closely mirrors
MSHA's level of oversight. The Company now has multiple full-time mine
rescue/audit teams to improve compliance through comprehensive
auditing. Each team includes a specialist assigned to a specific area
of focus, including ventilation, section operations, electrical
operations, conveyor systems (belts), mapping, and administrative
compliance. The audits entail, among other things, an inspection of
track haulage ways, escapeways, life lines, section ventilation,
accumulations of combustible materials, and roof support. The audit
culminates in a report--supported with photographic documentation--that
lists all necessary corrective measures and provides a deadline for
correction of the problem, not unlike that which MSHA or a state agency
might require. These working groups are founded upon the principle,
which Massey fully embraces, that the Company, and not its regulators,
bear primary responsibility for ensuring a safe and lawful working
environment.
The impact of the Hazard Elimination Committees and the new audit
procedures already has been felt. In fact, each of the three mines
mentioned in Senator Byrd's question have received significant
attention from the Hazard Elimination Committee in 2010; for example,
Freedom Energy's Mine #1 has been the subject of two recent
comprehensive mine audits, which resulted in subsequent remedial
measures. Provided below, is a sample of the safety-related changes
that have resulted from Massey's new programs:
--In response to violations issued for the installation of man doors
without proper signs in each adjacent entry, Massey now
requires that doors or stoppings be shipped to the mine for
installation with all necessary components bundled together,
including the required signage. This requirement should
eliminate the potential for installation of an item before
other necessary components have been shipped by the supplier,
or received by Massey.
--Massey routinely distributes company-wide information regarding
certain violation trends. Massey frequently sends out notes to
the resource groups, with the number of violations issued for
repeated hazards, such as unsealed stoppings, insufficient air
flow at the end of line curtains, water over the ball of the
track rail, or the accumulation of combustible materials. These
communications sharpen members' focus on specific problem
areas.
--Each week, Massey develops a new ventilation training quiz and
sends it to every underground foreman or examiner. These
quizzes are used to train and instruct members on all
applicable regulations. The 31 tests issued to date have
included working mine map problems, multiple choice quizzes and
word puzzles that require members to familiarize themselves
with Massey's stringent ``S-1 P-2'' (i.e. safety first,
production second) guidelines.
--The Hazard Elimination Committee terminated a previous practice in
which mine sites would purchase 16 foot fly boards. These
boards, from which ventilation check curtains are hung, had
been used throughout the company. During an audit, it was
apparent that the 16 foot fly boards inadequately facilitated
back up curtain coverage across the 20 foot wide entries.
Massey now requires the installation of two ten-foot boards. In
combination with the Company's required 20,000 cfm of air flow
at the last open crosscut (11,000 cfm more than required by
law), Massey has reduced the number of air flow violations.
Because the UBB mine is currently subject to an MSHA closure order
that prohibits Massey from operating underground, it is currently
impossible to institute the above safety measures like Massey
successfully implemented after the Aracoma accident. Massey
nevertheless has recently implemented a number of safety measures at
other mines. Specifically, Massey has amended its safety protocols to
include the following:
--A minimum air flow of 20,000 cfm is required at the last open break
on all sections.
--Freshwater and dewatering lines in belt entries must be hung from
roofs to avoid damage.
--Section roof bolters shall be equipped with a Bantam-type
rockduster and roof bolt operators shall rockdust each cut upon
completion of bolting.
--When stoppings are built and completed, the individual who builds
the stopping will note its integrity by initialing and dating
the stopping.
--Escapeways shall be traveled twice per week (even though once per
week is the legal requirement). The examiner will carry a
device for scaling roof and ribs and lifeline accessories, such
as spheres, cones, hangers, reflectors, lifeline splices, and
mandoor and escapeway signs.
--Each fireboss is required to leave a colored ribbon after his
examination; this ribbon is replaced with a different color by
the next fireboss, confirming that checks are made.
--Miners will be provided with a new style of metacarpal glove that
is more comfortable and that provides superior hand and finger
protection. Metatarsal gloves were created by Massey years ago
and have been enhanced several times.
--Massey produced video training tapes covering the following
subjects: (i) electrical hazards/lock-out surface and
underground; (ii) surface haulage safety; (iii) roofbolter dust
collection system maintenance; and (iv) continuous miner, roof
bolter, and general underground hazard training.
--Mines will now perform: (i) internal rock dust sampling for
incombustible content; (ii) systematic gas chromatograph
analysis of internal ventilation air course gases, which is
more accurate and comprehensive than that provided by the
industry standard handheld units; (iii) real time testing of
member exposure to respirable dust through the operation of
personal dust monitors (nearly 30 units). Massey will use the
dust monitors proactively with a time study to determine dust
sources and to train members on best practices.
To underscore the above commitment to safety, Massey took the
extraordinary step of idling all of its mines on October 29, 2010 for a
company-wide safety retraining initiative.
Massey used this unique opportunity to review and tighten safety
procedures at each of its mines. Massey's Chairman and CEO, Don
Blankenship, traveled to three mines during this stand down, including
Freedom Energy Mining's Mine #1, and helped to educate members on the
need to follow safety protocols at each mine. Undertaking such broad-
scale training with the support of the entire company is a testament to
Massey's commitment to safety and a signal to its members that S-1,
safety first, is the top priority.
Senator Byrd Question Number Three.\1\ Does it not undermine your
commitment to safety as ``job 1'' when Massey offers bonus packages
that are based 75 percent on productivity (i.e. number of feet per
shift, number of tons per man-hour, reduction of cash costs per ton)
and only 25 percent on safe performance? It is my understanding that
Massey also has a company policy that enables it to offer incentive
awards to any of its employees. Have any of your employees received a
bonus or award for achieving a given performance goal related to
productivity, without also having achieved a performance goal on
safety? Do you offer your coal miners or other employees awards,
bonuses, or other supplemental compensation, based on their
productivity?
---------------------------------------------------------------------------
\1\ We were instructed by counsel for the committee to disregard
the second question posed by Senator Byrd.
---------------------------------------------------------------------------
Response:
Massey has a number of different bonus structures for its
employees, each of which incorporates a safety component and none of
which undermine the Company's commitment to safety. The bonus framework
incorporates safety through clear, cognizable benchmarks that require
low nonfatal days lost and lost time accidents. These incentives apply
to all members, from a company president to an engineer to a roof bolt
operator. For supervisors, the safety bonus is typically tied to the
overall safety of the members under their care. Other members are
rewarded based upon a formula that accounts for their own safety, their
section's safety, and the whole mine's safety, thereby encouraging
safety both individually and collectively.
The Company understands that it is both improper and
counterproductive to sacrifice safety in an attempt to increase coal
production. Indeed, we absolutely reject the premise that the goals of
safety and productivity compete with one another. The maxim ``a safe
mine is a productive mine'' is a common refrain among Massey members
or, put differently, a successful 51 Program is essential to an
effective P-2 Program. Consequently, Massey standardizes its mining
practices and provides detailed process guidelines for routine mining
procedures. Massey recognized long ago that process management is
essential to mine safety and that accidents often result from process
exceptions. The goal is to perform every job correctly the first time
and every time thereafter. Accordingly, Massey's ``S-1 P2'' programs
are grounded upon the principle that mines are more productive and more
profitable when management follows a documented regimen of safe mining
practices. So while it is true, as mentioned in Senator Byrd's
question, that 75 percent of some employees' bonus structure might be
tied to cash costs per foot, production feet per shift, and linear feet
per man hour, safety plays a critical role in determining if the bonus
is met. As a result, members cannot meet their production goals and
maximize their bonus by ignoring safety.
Apart from the above bonus structure, Massey's safety compliance
and ethics program is enhanced through its pioneering and award-winning
``Raymond'' safety incentive program. Under the Raymond program, points
are awarded to individuals, working teams, and specific mines for safe
and ethical conduct, and those points may then be redeemed from a prize
catalog that includes sporting goods, clothing, tools, electronics,
toys, and other items. All underground members from the superintendent
level and below are eligible to participate in the program. The Raymond
incentive program has been recognized nationally for its creativity and
effectiveness in promoting a culture of safety and compliance, winning
the 2006 and 2007 Promotional Products Association International's
Golden Pyramid Award for Employee Incentives, and the 2005 Incentive
Marketing Association's Circle of Excellence award for Most Outstanding
Incentive Program in the nation.
Whether applied to the newest member or the most experienced
president, Massey's bonus structures explicitly emphasize safety.
Although Massey is confident that the current system does not undermine
the Company's commitment to safety, the bonus criteria are not static,
but rather are subject to change from year to year as Massey
continually reevaluates its programs to ensure that they reflect the
principles of safety first and performance second.
Senator Byrd Question Number Four. You testified that the Upper Big
Branch Mine was formerly operated by Peabody Energy. According to the
Energy Information Administration, the productivity of Central
Appalachian coal mines has declined 33 percent over the past decade.
Major coal-mining companies (such as Peabody) have increasingly sold
off their Central Appalachian mines. This is perhaps due to perceptions
that increased risks and related costs outweigh diminished production
values. Meanwhile, Massey has acquired many cast-off properties and
coal leases, and roughly tripled the amount of reserves it controls
during the past twenty years. For instance, it is my understanding that
while other coal companies have gone bankrupt or left the region,
Massey has acquired, rehabilitated, and resumed production at older
mines, including nonproducing property in which blocks of coal had been
left un-mined by the previous operator. You stated that your goal is to
engineer the risks out of mining in Central Appalachia, but you also
repeatedly acknowledged the difficult underground geologic conditions
and risk factors of many mines in Central Appalachia today. The Upper
Big Branch Mine Disaster presents the question as to whether Massey can
sufficiently engineer the safety risks out of the difficult mining
conditions in Central Appalachia. How do you respond to that question?
Considering the nature of your acquisitions and operations, and your
remarks about management of risks, and in light of the UBB tragedy,
what process will Massey use to re-evaluate its previous assumptions
and its abilities to engineer safety into its Central Appalachian
underground coal mines?
Massey's Response:
Mining coal is an inherently dangerous business and has been so
since coal was first discovered in West Virginia by John Peter Salley
in 1742. Digging through rock thousands of feet underground in dynamic
conditions with large elaborate machinery entails a certain amount of
risk. As recently as 1968, these risks led to the deaths of over 150
West Virginia coal miners and resulted in a staggering number of non-
fatal accidents. Needless to say, the risks associated with coal mining
have decreased significantly as technology and training have improved
over time. Although Massey is acutely aware of the perils associated
with mining, it is nevertheless optimistic about the future of safe
mining in Central Appalachia in light of the dramatic technological
progress that has occurred over the last twenty years. Indeed, Massey
has been at the forefront of the research and technological innovation
that has advanced the cause of safety; set forth below are some
examples of Massey's contribution:
--Proximity devices for underground continuous miners: These devices
stop a continuous miner when a member comes dangerously close
to the equipment. The Company believes this eventually will be
adopted into law. Massey helped conceive the idea and is also
pursuing the use of proximity devices on other mobile
equipment.
--First-aid sled for underground operations: These sleds are equipped
with a complete set of first aid supplies. They can be moved
underground with mining operations easily so that they are
readily available in an emergency.
--Protective covers for highwall miners: Due to the proximity of the
highwall miner machine to highwalls, Massey installed these
covers to protect miners from unexpected highwall failures.
--Canopies and NASCAR netting for underground mantrips: Although not
required by law, Massey equipped its mantrips with canopies and
netting to protect its miners from falling rock while traveling
underground.
--Underground forklifts for material handling: These specially
adapted forklifts assist miners in the movement of supplies
underground. Combined with the required vendor palletizing of
bulk supplies, the forklifts have greatly reduced back strains
and other injuries.
--Automated Temporary Roof Support (``ATRS'') Flappers: Massey
developed retractable folding extensions for the Automated
Temporary Roof Support in order to expand the supported roof
area during the roof bolting process. The flappers reduce the
likelihood that loose rock or coal will roll onto an operator's
feet or legs, thus providing an operator with a larger ``safe''
area to perform.
--Thermal Imaging: Massey utilizes thermal imaging to detect
defective circuit breakers or connections before they can start
fires, explosions or otherwise harm Massey members.
--Underground maintenance vehicles: Massey developed these all-in-one
units, which include a crane, to assist with maintenance and
repairs to underground equipment.
--Protective Clothing: Beginning in 1993, Massey required the use of
reflective clothing and metatarsal work boots for all mining
operations. The industry and much of the world subsequently
adopted both of these safety advances.
--Vehicle safety: Out of a concern for the safety of those working
around mining vehicles, Massey implemented a seat belt policy
for all mining equipment, required the use of strobe lights on
underground vehicles, and required the use of reflective tape
on all surface vehicles.
--Foam fire-fighting car: As mentioned in the answer to Senator
Byrd's first question, Massey developed a self-contained foam
firefighting car as one of the many safety-related responses to
the Aracoma accident in 2006.
--Submarine kits: Dozers working near stockpiles are equipped with
``submarine kits'' that protect dozer operators if the dozer
slips into voids in the stockpile. This device has been adopted
throughout the industry and has saved lives.
--Cameras on large equipment: Large surface mining equipment has been
equipped with cameras that address driver blind spots, keeping
miners in smaller surface equipment safe.
Although Massey clearly understands its obligation to provide a
safe working environment for its members in Central Appalachia, MSHA
likewise has a duty to ensure underground safety. It is for this reason
that Massey continues to be perplexed by some Federal regulatory
actions that strike the Company as insufficient or, in some extreme
instances, just plain wrong. One such example is MSHA's position with
respect to scrubbers, which are essentially dust collectors that help
to minimize coal dust that threatens miners' lungs and that could
potentially precipitate an explosion. Scrubbers are akin to a vacuum
cleaner, drawing in dirty air created during the continuous mining
process, passing that air through a filter, and eventually releasing
the filtered air back into the mine. This is essential technology that
has been widely used since the 1980s, making mines objectively safer
over the last three decades. In fact, one study by the National
Institute of Occupational Safety and Health indicated that turning off
scrubbers could increase by as much as 12 times the level of respirable
coal dust. In the face of this scientific data and despite industry-
wide support, however, MSHA demanded that Massey and other Central
Appalachian mines in District 4, including UBB, idle their scrubbers.
As a result, almost half of Massey's continuous mining equipment has
been forced to run without using the technology best adapted to remove
harmful coal dust from the air. Repeated efforts by Massey to open a
dialogue with MSHA on this subject have been met with intransigence.
This issue is particularly sensitive to Massey because the company
believes that prohibiting scrubbers at UBB exacerbated MSHA's
complicated ventilation plan for the mine. A properly ventilated mine
requires the careful synchronization of various underground mechanisms;
altering one aspect of a mine improperly can disrupt the environment in
potentially harmful ways. As a result of MSHA's order to turn off
scrubbers, Massey was compelled to alter UBB's ventilation system,
further complicating MSHA's already unnecessarily complex ventilation
plan for the mine and increasing respirable coal dust at UBB.
Despite the above challenges, Massey continues to remain optimistic
about the future of coal mining in Central Appalachia. Since 1742,
there has been a steady march towards safer mines in West Virginia.
Sometimes progress is frustratingly slow, yet the advance over time is
undeniable. The Company, therefore, remains committed to Central
Appalachia in the firm belief that future technological advancements
will invariably lead to safer mines.
Background to Senator Cochran's Questions. A recent preliminary
report to President Obama on the mine disaster found that the Upper Big
Branch mine experienced a significant spike in safety violations in
2009. The Mine Safety and Health Administration (MSHA) issued 515
citations and orders at the mine in 2009 and another 124 (as of the
time of the report) in 2010. MSHA issued fines for these violations of
nearly $1.1 million, though most of the fines are being contested by
Massey. The citations MSHA has issued at Upper Big Branch have not only
been more numerous than average, they have also been more serious. Over
39 percent of citations issued at Upper Big Branch in 2009 were for
``significant and substantial'' (S &S) violations. In what is perhaps
the most troubling statistic, in 2009, MSHA issued 48 withdrawal orders
at the Upper Big Branch Mine for repeated `significant and
substantial'' violations that the mine operator either knew, or should
have known, constituted a hazard. The mine's rate for these kinds of
violations is nearly 19 times the national rate.
Senator Cochran Question Number One. Are you aware that a recent
preliminary report submitted to President Obama by the Mine Safety and
Health Administration found that Massey mine's rate for repeated
serious violations was 19 times higher than the nation average?
Massey's Response:
Massey is aware of the preliminary report that apparently was
hastily prepared and provided to President Obama on April 16, 2010.
Although it is true that UBB experienced an increase in the number of
withdrawal orders under Section 104(d) of the Mine Act (``D orders'')
in 2009, the report does not fairly account for the circumstances
contributing to these orders, nor does MSHA fairly acknowledge the
sharp decrease in citations in late 2009 and 2010, after Massey
redoubled its efforts at UBB. Provided below is the factual background
that places these violations in the proper context.
The increase in overall citations and orders at UBB in 2009 is
largely a product of increased government oversight of the mine as well
as a higher level of coal production. It is well settled that there is
a direct correlation between MSHA inspection hours, the volume of
production and the number of citations that a mine receives. As MSHA
recognized in its preliminary report: ``In 2007, MSHA spent 135 days
inspecting the mine. By 2009 inspectors were at the mine 180 days.''
This 33 percent spike is the equivalent of an extra month and a half at
the mine. At the same time, the longwall returned to UBB from Logan's
Fork, resulting in extra production and the development of additional
sections for the next longwall panel. The confluence of more
inspectors, longer and more frequent inspections, and increased
production was, therefore, likely to result in additional citations.
Apart from increased production and inspection, the ill-conceived
ventilation plan changes imposed by MSHA also contributed to the
increased number of violations and orders. These arose not because the
Company refused to comply with the new standards, but because it was
difficult to comply with the new complex ventilation scheme, which
complicated the routing of the returns, prevented the use of belt air
in the face, required the maintenance of stoppings inby the longwall,
and wasted intake air on the longwall tailgate. In fact, a review
indicates that 53 percent of the ``D orders'' for ventilation and 24
percent of ventilation violations received at UBB in 2009 and 2010 were
caused directly from the complex ventilation scheme mandated by
MSHA.\2\
---------------------------------------------------------------------------
\2\ The data with respect to orders shows: (i) 55 ``D orders'' were
written from 2009 through March 31, 2010; (ii) 34 of 55 ``D orders''
(62 percent) were issued under 30 Sec. C.F.R. 575.300, which is
generally the ventilation section of the law; (iii) 17 of those 34 were
for 'true' ventilation issues; and (iv) 9 of those 17 orders were
direct results of the unfamiliar and complex ventilation scheme. The
data with regard to the violations shows that 220 total violations were
issued under 30 Sec. C.F.R. 575.300; of those violations, 100 (45
percent) were for `true' ventilation issues; and 24 of those 100 were
due to the MSHA-mandated ventilation plans.
---------------------------------------------------------------------------
Despite these clearly identifiable precipitating factors, Massey
was still concerned about the number of violations and sought to reduce
them. The Company responded by installing two full-time safety
directors at UBB in late September 2009. The additional safety
presence, along with Massey's Hazard Elimination program, dramatically
reduced the pace of citations issued at UBB. Indeed, although there
were 47 ``D orders'' issued at UBB between April and mid-October 2009,
MSHA wrote only seven from mid-October 2009 to April 2010, thus
demonstrating the substantial progress made by the company during this
period of time.
In evaluating the above circumstances it is also important to note
why the Company contested many of the citations and orders issued in
2009 and 2010. Massey believes in good faith that these violations and
orders, in whole or in part, lacked validity and/or failed to account
for mitigating circumstances. Indeed, many of those referenced in the
report are not final orders and will not become final until the review
and adjudication process is complete. Based on past experience, we
expect that many of these violations will be completely vacated during
the Mine Safety and Health Review Commission process; for others, the
severity of the offense will be reduced appropriately as mitigating
circumstances are explained and considered by neutral factfinders.
We hasten to add that while there are mitigating circumstances that
explain the elevated enforcements at UBB, the Company cannot, and will
not, simply ignore ``D Orders'' or become complacent as to the
potential seriousness of a pattern of increased violations.
Accordingly, and as described above, Massey established its Hazard
Elimination Program at UBB (and throughout the Company) before the UBB
accident to reduce both hazards and violations. The efficacy of the
committee on UBB is evident from the precipitous drop in ``D Orders''
during the course of 2009 and into 2010. Massey believes that these
measures as well as the others mentioned previously will result in a
further decrease in the number of orders and citations company wide.
Senator Cochran Question Number Two. Given this high rate of
serious violations, can you please tell us what percentage the Upper
Big Branch mine contested of its `significant and substantial''
citations serious violation citations for 2007, 2008, 2009, and 2010?
Massey's Response:
Massey does not keep statistics reflecting the number of
Significant and Substantial (S&S) violations received at UBB that were
contested through the Mine Safety and Health Review Commission process.
The chart below identifies the percentage of violations that were S&S
at UBB for the years 2006, 2007, 2008 and 2009.
----------------------------------------------------------------------------------------------------------------
S&S violations/ District 4 National
Year UBB average average
----------------------------------------------------------------------------------------------------------------
2006............................................................ 47.9 40.7 38.2
2007............................................................ 36.7 33.3 36.0
2008............................................................ 42.1 36.1 31.9
2009............................................................ 39.7 38.7 33.6
----------------------------------------------------------------------------------------------------------------
As you can see, the rate at UBB was slightly greater than the
District 4 and national averages; this is easily explained, however, by
UBB's age, size, amount of producing sections, and number of employees,
all of which are also proportionately higher than the national average.
It is important to note that a statistic that quantifies the number
of S&S violations contested would be rudimentary because such
violations typically involve a higher fine than most. Industry-wide,
the percentage of violations contested quantified by the amount of
money at stake is significantly higher than the simple percentage of
violations contested overall. According to statistics available on
MSHA's website (www.msha.gov), the national average of all violations
contested in 2009 was 27.1 percent, but the percentage of penalty
dollars contested was 66.6 percent. Plainly, there is a direct
correlation between the amount of a fine and the likelihood that it
will be contested.
Furthermore, contesting an S&S violation does not necessarily mean
that a mine operator challenges the fact that it was significant and
substantial. There are a number of different factual issues that an
operator may contest, all of which are highly subjective and directly
affect the amount of the fine. See 30 Sec. C.F.R. 5100.3(e). For
example, the number of people potentially affected by the hazard is a
frequent point of contention between mine operators and MSHA. As part
of the penalty calculations, a hazard that MSHA believes would affect
10 miners increases the penalty points by 18, while a hazard that
affects only one miner (though still one miner too many) raises the
penalty by one point. Id. This seventeen point differential has the
potential to raise a single fine by over $45,000. See 30 Sec. C.F.R.
5100.3(g).
Other factors that go to the ``gravity'' of the offense and that
are frequently litigated include the degree of negligence, whether the
hazard was potentially fatal, and the likelihood that an injury or
illness would occur. With regard to the likelihood of an accident
occurring, by determining that an injury was ``highly likely'' to occur
as opposed to ``reasonably likely,'' the penalty points are increased
by ten. Id.
Above all, it is important to remember that statistics show that 40
percent of all appealed MSHA safety violations are later determined to
be excessive or flatly wrong. Indeed, MSHA's initial violations are now
routinely inflated as a position of advocacy. Consequently, it would be
unfair to draw any negative inferences from Massey's decision to
challenge MSHA's issuance of these highly subjective citations and
orders. To the contrary, the remarkably high frequency of fine
reductions or outright dismissals through the settlement and
adjudication process demonstrate that these appeals are neither
frivolous, taken for the purpose of delay, nor intended to overwhelm
the appellate process.
Senator Cochran Question Number Three. Did the Upper Big Branch
mine contest large numbers of ``significant and substantial''
violations to avoid ``potential pattern of violation'' status since the
Mine Safety and Health Administration uses only final orders to
establish a pattern of violations?
Massey's Response:
In each instance, many factors--many of these the product of legal
analysis and advice--inform the decision whether to appeal a particular
citation. To the extent that this question seeks information that asks
the Company to forfeit both the attorney-client privilege and the
protections of the work product doctrine, we cannot respond. That being
said, Massey challenges citations solely on their merits (or lack of
merit). It does not challenge S&S citations simply to prevent its mines
from being placed into ``potential pattern of violation'' status. As
described in more detail above, there are myriad reasons for contesting
an S&S violation, not the least of which is that it is an inherently
subjective process. The results of the adjudicative and settlement
process speak for themselves and forcefully refute the suggestion that
appeals are taken for the purpose of delay or to avoid a ``pattern of
violations'': Almost half of all citations are vacated or reduced
during the Mine Safety and Health Review Commission process.
It is also important to emphasize that Massey, like all mine
operators, must abate every S&S violation, regardless of whether the
Company plans to mount a challenge. A notice of contest, therefore,
never results in the continuance of a potentially unsafe practice. By
the time a contest is resolved, often more than a year from the
issuance of the citation, the allegedly hazardous condition has been
fixed and all that is in dispute is the validity of the violation and
the severity of the fine. Simply put, Massey never exposes its members
to any harm by contesting these violations.
______
We reiterate that Massey is happy to assist your committee in its
inquiry into the tragedy at UBB and mine safety in general. Massey
believes that the committee's full engagement will lead to a greater
appreciation of the unique challenges faced by the coal industry and,
we hope, lead to a safer environment in which to harvest coal, which
presently accounts for 45 percent of the country's energy. If you have
any further questions please do not hesitate to contact me.
Sincerely,
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Robert D. Luskin.
CONCLUSION OF HEARING
Senator Harkin. The subcommittee is recessed.
[Whereupon, at 4:50 p.m., Thursday, May 20, the hearing was
concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
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